Smith v Maxitrans Australia Pty Ltd
[2016] VCC 127
•23 February 2016
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-01123
| CHRISTOPHER SMITH | Plaintiff |
| v | |
| MAXITRANS AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 2 and 3 February 2016 | |
DATE OF JUDGMENT: | 23 February 2016 | |
CASE MAY BE CITED AS: | Smith v Maxitrans Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 127 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the lumbar spine – loss of earning capacity only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to the plaintiff to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Seccull with Mr N Dubrow | Nowicki Carbone |
| For the Defendant | Mr P Scanlon QC with Ms F Ryan | IDP Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 23 November 2011 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, pain and suffering having been conceded.[1]
[1]Transcript (“T”) 1
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4The body function relied upon in this application is the lumbar spine.
5 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
6 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
7 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
8 In this case, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
9 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
10 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
11 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
12 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
13 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. His wife, Yvonne, swore an affidavit on 14 January 2016. In addition, both parties relied on medical reports. I have read all the tendered material.
The Plaintiff’s evidence
14 The plaintiff is presently aged fifty-seven, having been born in January 1959. He lives with his wife, Yvonne.
15 The plaintiff left school at the end of Year 10, having struggled with schoolwork. He is a qualified butcher and boilermaker. His English speaking skills are good, reading and writing skills are fair and his wife often has to help him read and understand documents. It took him a long time to read his affidavit and he had difficulty understanding it. He has difficulty with spelling and forming sentences.[4]
[4]T31
16 Since leaving school, the plaintiff has worked as a slaughterman, butcher, welder, boilermaker and in maintenance. From 2005, he was employed by the defendant, a manufacturer of semi-trailers based in Ballarat, as a full time boilermaker/welder.
17 On the said date, when the plaintiff was manoeuvring a 150-kilogram box onto the tyne of a forklift, he experienced sharp pain in his lower back (“the incident”).
18 Following the incident, the plaintiff had physiotherapy and saw his general practitioner, who put him off work in August 2012.
19 The plaintiff returned to work with the defendant under a return to work plan on 5 December 2012 doing light duties on reduced hours. He was required to check forklifts and scissor lifts and do office work. Later, he worked doing “expediting,” a task which involved him producing documents/specifications from a computer to saw and press operators to enable them to cut out the parts of the trailer that had to be constructed.[5]
[5]T14
20 By July 2013, the plaintiff was working full time light duties. The work was not heavy. He did not require any time off. He was able to sit, stand, walk and move around as he wished. However, his back condition worsened.[6]
[6]T12
21 The plaintiff did not do expediting and the work with the forklifts at the same time. Towards the end, he started to enjoy the expediting task and having new skills. He was getting though the task “all right”.[7]
[7]T14
22 On 8 July 2014, the plaintiff went off work again because of his back and leg pain.
23 On 25 August 2014, Mr de la Harpe, orthopaedic surgeon, operated on the plaintiff’s back (“the surgery”). The plaintiff has not returned to work since.
24 The plaintiff agreed that he told his surgeon six weeks after the surgery that he was very happy and his leg pain was 99 per cent gone.[8]
[8]T15
25 The plaintiff agreed that he told Nabenet in January 2015 that he no longer experienced sciatica or sharp pain in his back. He experienced an intermittent ache in his lower back that was aggravated by prolonged postures. He told Nabenet he could sit for 30 to 45 minutes, stand for 10 minutes and drive for 30 minutes. He was unable to squat.[9]
[9]T24
26 The plaintiff attempted to return to work with the defendant but was not allowed to do so. Had he been permitted to return to work, with his leg pain having gone, he would have been well enough to go back and do office work but he would not have been reliable.[10]
[10]T16
27 The plaintiff thought that in December 2014, he could have gone back to light duties if he had been allowed.[11] He would have attempted to go back to office work. He agreed that he was “a little bit improved” and if he could work with more pain pre surgery, he could work with less pain post surgery. He agreed he wanted to return to work. He enjoyed working because it was more fun working than not, and he was not lazy.[12]
[11]This was at time of improvement post surgery
[12]T17
28 If he was allowed to do this work with the defendant now, he would be very unreliable because he has to rest if he does too much.[13]
[13]T18
29 The plaintiff denied that at present, with the post-operative improvement, he was able to work full time and be reliable. He would now be unreliable doing heavy lifting, bending or sitting or standing for too long.[14]
[14]T18
30 What had changed between 2015 and the present to make the plaintiff unreliable is that if he bends over to do anything or lift anything, his back hurts and he must lie down. Pre surgery, he was not doing any lifting, just walking around.[15] The plaintiff guessed if he could sit and stand at will and the job was there, he could do it. He agreed that meant he could work full time in very light duties provided there was no heavy lifting.[16]
[15]T18
[16]T19
Current complaints
31 The plaintiff continues to experience low back pain, leg pain and he is emotionally distressed. His low back pain is constant, varying in intensity. His back continues to be stiff, particularly in the cold weather.
32 Although the plaintiff’s left sciatica improved after the surgery, he continues to experience pain and numbness down both legs, which seems to have gradually increased as time has gone on. These symptoms spread from his buttocks through the back of his legs into his thighs.
33 The plaintiff’s left leg symptoms are more intense than his right. He experiences them daily, with varying degrees of intensity.
34 Since the surgery, the plaintiff still has tingling and numbness in his legs and across his back. Those symptoms vary, depending on what he is doing. If he sits for too long, his legs go numb and he gets pains across his back. Bending can also stir up his symptoms and pain then shoots down his leg.[17]
[17]T27
35 Whilst the sciatic pain down to his toes has gone, the plaintiff still gets “all the other nerve pain shooting around”.[18]
[18]T28
36 Apart from the surgery, the plaintiff had physiotherapy and hydrotherapy, a cortisone injection, and he attended St John of God Ballarat Hospital for rehabilitation. He has also taken painkillers and anti inflammatories.
37 The plaintiff’s injury continues to cause him disturbed and restless sleep.
38 The plaintiff’s injury has prevented him from returning to normal, unrestricted work as a boilermaker/welder in his chosen trade. He believes that he will never be able to return to gainful employment, having intended to work beyond sixty-five prior to injury.
39 The plaintiff’s injury has affected a wide range of activities, in particular his passion for gardening and showing chrysanthemums.
40 The plaintiff continues to find it hard to run, squat and lift heavy weights and so tries to avoid those activities as much as possible. Although he can bend, doing so often causes him increased back pain and he finds repetitive bending or twisting particularly painful.
41 The plaintiff is able to walk short distances and carry out light tasks without too much difficulty but standing or walking for too long often increases his back pain and leg symptoms.
42 Mr de la Harpe recommended physiotherapy and hydrotherapy and referred the plaintiff to the St John of God Ballarat Hospital outpatient rehabilitation unit where the plaintiff completed a pain management course. Although the plaintiff found the course somewhat helpful, he was disappointed he could not regain as much function has he had hoped.
43 Between August and November 2015, the plaintiff participated in a swim gym program through the YMCA on medical advice. He found it beneficial overall, although he missed some days here and there due to back pain and tiredness.
44 The plaintiff continues to see Dr Weinrich most months as needed and for medication.
45 The plaintiff has recently been prescribed new antidepressant tablets by Dr Weinrich which he feels have improved his mood somewhat over the last month or so since swearing his recent affidavit in January 2016.
46 Dr Weinrich has recently referred the plaintiff back to Mr de la Harpe because of the plaintiff’s ongoing lower back and leg symptoms.
47 The plaintiff continues to take a range of medication. He takes between four to eight paracetamol; codeine 500 milligrams daily and 450 milligrams of Lyrica daily. He also takes antidepressants.
48 The plaintiff continues to find physical activity tends to stir up his low back pain and leg pain. Although he tries to keep as active as can, he is limited in what he can do.
49 A range of social activities have been affected including golf, camping, caravanning and dancing. The plaintiff’s ability to play pennant bowls is restricted.
50 The plaintiff was a member of the Beaufort Golf Club. He has not tried golf since the surgery because he cannot twist his back. His handicap was previously 15 and had got down to 8 at one time.[19] He would be still playing golf if he could.[20]
[19]T22
[20]T30
51 The plaintiff continues to grow flowers from home. He participates in local shows as a judge and displaying his flowers.
52 Before injury, the plaintiff used to regularly carry out 30 to 35 hours of work a week tending to the flowers, which he usually did in winter. Although he has now got more time on his hands, he is not able to spend as many hours on these tasks. On average, he spends about 14 to 15 hours a week, depending on his pain, but on some days, only three or four hours and on others, not much time at all.
53 That interest requires the plaintiff to shovel, lift pots and use a trailer on occasion, potting, watering and taking cuttings. Much of the work is at bench height. He has made himself an extended grip of about 45 centimetres to enable him to lift the pots from the ground to the table, which saves him bending over. He does the work at his own pace and will continue to do so as long as he can because it is a pastime he greatly enjoys.
54 Over the last five years or so, the plaintiff has been selling flowers. Since about July 2015 he has been selling through the mail and has assistance from his daughter, Leanne, who works with him two to three hours each week on email. His wife also helps him from time to time.
55 The business is conducted online and the plaintiff’s wife helps with physical tasks. The plaintiff is not computer savvy and requires help from his family in this regard.[21]
[21]T29
56 Since the plaintiff commenced the business, sales have totalled approximately $2,500, and expenses have totalled $2,200 to date including his iPad. This is a hobby rather than a source of income and he cannot expand it any further because of his limited physical capacity. In any event, there is not a demand for selling more flower cuttings.
57 The plaintiff has not exhibited his flowers in South Australia since the surgery.[22]
[22]T19
58 The plaintiff has been unable to return to paid work. He has participated in a Nabenet rehabilitation program, which he completed in July 2015. He is also registered with Hays Specialist Recruitment and he looks for work in the local paper.
59 Since his earlier affidavit, the plaintiff had applied for work as a government customer service officer, monitoring centre operator, chicken dresser and sales support officer. He was unsuccessful in obtaining those positions. He doubted he would be able to manage those jobs due to his ongoing symptoms but thought that if he secured a job, at least he could try.
60 The biggest difficulty the plaintiff would have with working is that his back condition varies from day to day and he would not be reliable.
61 During a normal week, the plaintiff has good days where he feels he could manage light part time work but on other days, his pain is severe and he would struggle to carry out much work at all.
62 Further, every now and again, the plaintiff experiences such severe back pain he has to lie down and rest. When doing light office duties before the surgery, he was struggling with back pain and had to go home and rest on occasions. He did not believe he could return to that type of work due to his current condition and, as a result, he is at a loss as to what work he could now do.
63 The plaintiff received a letter dated 11 November 2015 from the defendant, advising it had concluded his rehabilitation had ceased to progress and his current capacity for work did not allow it to continue providing duties suitable to his capacity.
64 The plaintiff was disappointed to receive this letter but felt he was in no position to disagree as he is not capable of continuing work with the defendant due to his work injury.
65 The plaintiff also remains very disappointed he is unable to return to boiler making/welding work, as he enjoyed that work and it gave him a sense of pride and achievement. Overall, he continues to lose a great deal of his independence and lifestyle as a result of his workplace injury.
66 The plaintiff agreed that at fifty-seven he would not want to stop working. If there was a job with no lifting, and he could sit and stand as he wanted to, that would be ideal for him.[23]
[23]T23
67 The plaintiff agreed that working as a weighbridge officer with duties involving looking at a log book; moving between a chair 5 metres or 10 metres to a truck; looking at the truck and then coming back and entering data would be ideal for him. He agreed that it was something he could do because there was no lifting involved and it gave him an opportunity to work.[24]
[24]T26
68 In re-examination, the plaintiff stated he would have difficulties with this role. He would not go well, as sitting would cause pain and he would have to stand and walk around before sitting again. Sometimes, he would have to lie down to straighten his back and take the weight and pressure off it.[25]
[25]T28
69 The plaintiff would not be able to cope with sitting for extended periods of time entering data because the pain would be too much. He would not be able to bend down and look at various parts of the truck, as doing so would cause back pain and pain down his legs. That pain was constant but got worse, depending on what he was doing.
70 The plaintiff would not be reliable for the suggested “ideal” jobs. Some days he has to just lie down. Last Sunday, he potted ten plants and spent the next day lying in bed because the pain across his back and down his legs was so bad.[26]
[26]T28
Lay evidence
71 The plaintiff’s wife, Yvonne Smith, swore an affidavit on 14 January 2016. She confirmed the plaintiff’s good health pre injury, his significant problems thereafter requiring regular pain medication, his physical limitations and the interference with various activities, in particular, his restricted involvement in growing and showing flowers.
Pre-surgery treatment
72 Dr Weinrich referred the plaintiff to Mr de la Harpe in August 2012. At that time, the plaintiff had a work-related back injury with no real progress. The plaintiff had had to curtail his activities and had not been able to do other than very light office duties a few hours a day but even then in pain.
73 Dr Weinrich wrote to Mr de la Harpe again on 6 September 2012. He noted the plaintiff had deteriorated further and was then incapable of any work.
74 Mr de la Harpe saw the plaintiff on referral from Dr Weinrich in November 2012.
75 The plaintiff was then complaining of ongoing back pain and occasional non-dermatomal leg pain and paraesthesia.
76 Mr de la Harpe noted the plaintiff then did not have any significant leg symptoms, and surgery did not need to be considered. He thought the plaintiff should be tried on a rehabilitation program with physiotherapy. He thought the plaintiff currently did not have a capacity to return to any significant manual duties.
77 On examination on 8 January 2013, Mr de la Harpe thought the plaintiff would only have the ability to return to work doing sedentary duties, starting on limited hours. This work would involve no repetitive bending or twisting, no sitting or standing in the one position beyond 30 minutes, and no lifting beyond 5 kilograms.
78 The plaintiff attended St John of God outpatients rehabilitation from May 2012 for water-based exercise physiology sessions.
79 The plaintiff had a left L5 nerve root injection on 20 December 2012.
Investigations
80 A CT scan of the lumbar spine organised by Dr Weinrich in December 2011 showed broad-based posterocentral and left posterior paracentral disc extrusion at L4‑5 producing mild compression over the left L5 nerve root. There was moderate bilateral L5‑S1 facet osteoarthropathy.
81 There was an MRI scan in August 2012 organised by Dr Weinrich.
82 It was reported that at L4‑5, there was loss of disc signal, although the height of the disc was maintained. There was a disc protrusion centrally into the left side. That was not affecting the L5 nerve roots within the exit canals, but was causing compression and displacement to the left L5 nerve root within the central canal. The right side was unremarkable.
83 There was an MRI scan of the lumbar spine organised by Mr de la Harpe on 25 June 2014.
84 It was reported there was posterocentral and left posterior paracentral disc extrusion at L4-5 level, abutting bilateral L5 nerve roots (left more than right). There was a small right posterolateral protrusion at L3-4 abutting the right L3 nerve root.
Post-surgery treaters
85 Rosemary Shea, consultant rehabilitation physician from St John of God outpatients, wrote to Dr Halliburton on 13 October 2014.
86 Following the L4-5 decompression on 25 August 2014, Dr Shea noted the plaintiff was very happy with his recovery from surgery. Most of his leg pain had completely resolved and he had been able to significantly decrease his medication usage.
87 Dr Shea then thought, given the plaintiff’s work as a boilermaker, he needed to have good core strength as well as general strength and fitness and she requested funding for an eight-week program with gym, hydrotherapy and physiotherapy, as well as occupational therapy.
88 Dr Shea reported again in February 2015, having reviewed the plaintiff. He then advised that unfortunately despite regular therapy and participating well in the outpatient program, there had been no gains made earlier with the interim measures in December or on the final outcome measures earlier that year.
89 On examination on 5 February 2015, the plaintiff reported much of his pain had now returned. There was a generalised ache which was more significant on some days without any obvious precipitation which was quite troublesome, although none of the sharp pain radiating down into the lower limbs pre operatively had returned.
90 Dr Shea noted the plaintiff and his wife were very uncertain about the future and were both disappointed by the fact he did not make any gains in rehabilitation. Dr Shea noted although the plaintiff tended to be quite stoic, his wife described great loss of activity.
91 Dr Shea noted the plaintiff was very uncertain about what the future might hold in terms of job prospects.
92 Dr Shea then thought the plaintiff would benefit from participation in a pain program to look more at teaching him how to manage his current symptoms and how to manage them in the long term, as it appeared they were likely to be ongoing.
93 Dr Ulman, consultant physician and medico-legal consultant from St John of God outpatients, wrote to the plaintiff’s solicitors in August 2015.
94 Dr Ulman advised after an initial assessment in April 2015, the plaintiff attended the Painwise program three times a week for five weeks. His mid program assessment was on 29 May 2015. He attended twice a week for the second five weeks and his end of program assessment was on 13 July 2015.
95 The main rehabilitation providers in the program were medical initially, then physiotherapy, occupational physiotherapy and psychology.
96 Dr Ulman noted the plaintiff planned to continue gym sessions for five weeks and was to undergo review by the Painwise team three months and six months post program completion.
97 It was noted that at the completion of the program, the plaintiff remained unemployed and was in receipt of weekly payments. He had been linked with Nabenet and had recently had his last appointment.
98 Overall, it was concluded that the St John of God program was reasonably successful.
99 When he reported a month after the surgery, the plaintiff’s general practitioner, Dr Weinrich, noted that the outlook had improved considerably from the bleak pre-operative picture.
100 Dr Weinrich thought a return to manual factory work was not possible due to the risk of recurrence of injury. He noted the admirable way the plaintiff had conducted himself “through this ordeal”. He thought the plaintiff had attempted beyond the efforts of most others to return to work and had endured a great deal of pain in order to do so. He hoped the plaintiff could now enjoy some minimal pain existence and get his life back into his pre-injury pattern.
101 Dr Weinrich could not emphasise too strongly the fact the plaintiff could not return to his pre-injury duties due to the risk of further injury.
102 When Dr Weinrich reported in July 2015, he noted that since his earlier report the plaintiff had not enjoyed the hoped for post-operative improvement expected. Despite appropriate surgery with initial encouraging pain relief, the plaintiff continued to have significant pain and restriction of function.
103 Dr Weinrich noted the pain management course had been of some benefit so far.
104 As of July 2015, Dr Weinrich thought the plaintiff remained incapacitated for his pre injury employment due to his injury. He did not believe the plaintiff was realistically employable at all due to his level of pain and restriction. He did not think the plaintiff’s condition had necessarily stabilised then and recommended a further MRI scan. Depending on the results therefore, he thought the plaintiff may be either referred to Mr de la Harpe or possibly for a nerve root injection if appropriate.
105 By letter of 20 November 2015, Dr Weinrich referred the plaintiff back to Mr de la Harpe.
106 In that referral letter, Dr Weinrich noted unfortunately the plaintiff had not done well pain wise. His sciatica had gone but he was now left with pain in both posterior thighs and buttocks. Any activity stirred things up and the plaintiff was severely limited.
107 Dr Weinrich noted the plaintiff continued to be off work with no real prospects of a return to work in any capacity. He had completed rehabilitation and recently started on antidepressants with perhaps some early signs of improvement in mood.
108 Dr Weinrich noted the plaintiff was considering applying for benefits through his insurance as both he and his wife had disability cover in a life policy.
109 On 1 February 2016, Dr Weinrich advised that the plaintiff continued to suffer significant and disabling pain as a result of his back injury. He did not believe any further substantive treatment was required. He considered the plaintiff should continue to have access to physiotherapy, massage and hydro gym facilities as appropriate and as needed to assist in pain management.
110 In his report of 1 September 2014, Mr de la Harpe noted he saw the plaintiff on 16 November 2011. The plaintiff was then complaining of ongoing back pain and occasional non dermatomal leg pain and paraesthesia. Because he was not having any significant leg symptoms, Mr de la Harpe did not consider surgery was necessary and physiotherapy should be undertaken.
111 On review on 14 July 2014, the plaintiff was experiencing ongoing back pain. He was then doing office work. Physiotherapy tended to aggravate his back pain. The plaintiff had significant problems with prolonged driving and certain activities.
112 On examination, the plaintiff sat with an antalgic gait and his left leg was extended. Mr de la Harpe noted the recent MRI revealed a degenerative disc at L4-5 but there was significant subarticular stenosis on the left-hand side from the disc prolapse and arthritic change.
113 On 25 August 2014, Mr De la Harpe performed a routine decompression with good postoperative results. There were no complications and an early discharge and he planned to review the plaintiff in due course.
114 At that stage, Mr de la Harpe believed that the condition would restrict the plaintiff in relation to his earning capacity. It was not good for the plaintiff to go back to manual duties. The plaintiff was then recovering from surgery and had no capacity for any employment. He considered the plaintiff’s prognosis in general was good as long as he did not return to manual duties or stressful recreational activities.
115 On review of the plaintiff on 2 October 2014, six weeks after the surgery, the plaintiff told Mr de la Harpe the pain in his leg was 99 per cent gone and he was very happy.
116 At that stage, Mr de la Harpe thought as the plaintiff’s job was all heavy manual labour, the plaintiff was not quite ready to return to it and recommended he participate in a strengthening rehabilitation program at St John of God. He thought the plaintiff would be limited as far as manual duties now and into the foreseeable future and that that would be permanent.
117 Mr de la Harpe wrote to St John of God outpatients on 9 December 2015 having reviewed the plaintiff the previous day.
118 Mr de la Harpe noted the plaintiff no longer had sciatica for which surgery was performed. The plaintiff described predominantly degenerative back pain which was aggravated by activity. There was nothing surgically Mr de la Harpe would wish to consider at that stage and he was very keen for the plaintiff to undergo further hydrotherapy and physiotherapy at St John of God.
Investigations
119 An MRI scan of 20 August 2015 at L4/5 showed a loss of disc signal, although the height of the disc was maintained. There was a disc protrusion centrally into the left side. That was not affecting the L5 nerve roots within the exit canals but it was causing compression and displacement to the left L5 nerve root within the central canal. The right side was unremarkable.
Medico-legal examiners
120 Mr Huffam, orthopaedic surgeon, examined the plaintiff in August 2015.
121 On examination, lateral flexion and flexion of the lumbar spine were limited to two thirds of the normal range with some pain and muscle spasm. There was a little diminution in sensation over the dorsum of the left foot. Straight leg raising was diminished to 50 degrees on the right and 80 degrees on the left.
122 Mr Huffam noted after the surgery, the plaintiff continued to have low back pain. Mr Huffam diagnosed an injury to the lower lumbar spine at L4/5 with intervertebral disc protrusion causing back pain and sciatica.
123 Mr Huffam then thought the plaintiff was completely unfit to perform any form of manual work requiring bending or lifting and noted the defendant had not been prepared to re employ him performing the office type duties which he had been doing prior to surgery and that he would only be re-employed if he could do his full time manual duties as before injury.
124 Mr Huffam thought the plaintiff had no capacity to perform unrestricted manual or pre injury duties subsequent to the injury. He considered the injuries had stabilised and were unlikely to change appreciably in the foreseeable future.
125 Mr Huffam agreed with the plaintiff’s general practitioner that the plaintiff could return to some form of sedentary work such as he was doing following the initial injury and that the plaintiff would probably be able to cope with such work.[27]
[27]This was Dr Weinrich’s earlier view
126 Mr Huffam noted Ms Schneider’s vocational assessment of May 2015. He agreed with her that the plaintiff could not really be considered to have current employment potential, considering his age, lack of formal education and physical disability.
127 Having been provided with Dr Lewis’ report of 28 July 2015, Mr Huffam agreed with his conclusion that the plaintiff could reasonably expect functional deficits of a long term nature and so long as that was the case, it was likely he would be symptomatic in the psychiatric sense for the foreseeable future.
128 Mr Huffam agreed with Dr Lewis’ view that the plaintiff’s future occupational potential was very significantly impacted given the limitations in being able to return to manual handling work and also that the plaintiff’s lack of education and literacy issues very significantly disadvantaged his vocational rehabilitation potential.
129 Dr Amanda Sillcock, occupational physician, examined the plaintiff in November 2015.
130 The plaintiff told her of lower back pain, graded 2 to 3 most of the time, rising to 6 and 7 at times. The pain went down his left leg if he sat for too long. He no longer had any neurological symptoms.
131 On examination, there was generalised reduction of movement of the lumbar spine. There were normal reflexes and sensation in the legs but slight weakness of flexion and extension of the left big toe.
132 Dr Sillcock believed the plaintiff suffered from a disc lesion at L4-5 that was pressing on the left L5 nerve root. This had been surgically treated and the plaintiff had only minor signs of a persisting radiculopathy.
133 Dr Sillcock did not believe the plaintiff had a current work capacity. She considered him unfit to return to his pre injury duties as a welder because it was heavy work. She noted he was working in an office before surgery and those tasks were no longer available and that the plaintiff would have great difficulty finding suitable work on the open job market.
134 Dr Sillcock noted the plaintiff is fifty-seven and lived in a regional city. He had always worked in manual work, mainly welding, although he worked as a butcher for a time.
135 Dr Sillcock did not believe the plaintiff would be fit to go back to work as a butcher because of heavy lifting and prolonged standing. She noted he had been off work for about eighteen months, which would also make it difficult for him to return to work.
136 Dr Sillcock thought the plaintiff had a theoretical capacity for alternative duties with lifting no more than 5 kilograms repetitively and 10 kilograms occasionally; no prolonged sitting or standing and minimal bending. However, realistically, she did not believe it would be possible for him to easily obtain suitable work.
Vocational evidence
137 Leonie Schneider from Australian Vocational Link Pty Ltd, vocational counsellor, interviewed the plaintiff for four and three quarter hours on 3 May 2015.
138 Ms Schneider noted the plaintiff did some of Year 10. His reading was poor and he seldom read. His spelling was poor, so he seldom wrote. His oral English demonstrated deficiencies in grammar.
139 Ms Schneider considered the plaintiff had no physical capacity for his pre injury employment as a full time, part time, or casual welder in the heavy transport construction industry, and that was permanent.
140 Taking into account his physical limitations only, Ms Schneider thought there was some small likelihood that the plaintiff had the theoretical capacity to perform suitable alternative employment on a restricted part-time basis. However, when considering the very considerable impact of persistent pain and depleted sleep, a routine of medical and rehabilitation treatment, and the impact of his medication on cognitive function, she thought it highly unlikely that he could obtain, let alone sustain, durable meaningful and gainful employment for which he was qualified, trained, experienced, and/or skilled sufficient to enable him to live independent of income support from WorkCover or other welfare systems.
141 Ms Schneider thought the prospects of the plaintiff being successfully rehabilitated into the workforce was again seriously compromised by the implications of his spinal injury and associated restrictions. She thought vocational retraining was questionable and also that the plaintiff’s restrictions associated with his psychological presentation and employment history meant he actually lacked transferrable skills for other work.
The Defendant’s medico-legal examiners
142 Dr Barton, consultant occupational physician, examined the plaintiff in March 2012 and also carried out a worksite assessment. He saw the plaintiff again in October 2012.
143 Dr Baker examined the plaintiff in May 2013. He later carried out a worksite assessment and advised on a return to work plan.
144 At the time of that examination, the plaintiff was working six hours a day, five days a week on office duties. He complained of constant, variable daily back pain. He was unable to sit or stand in one position too long and had to change his position. When he walked, he had a left sided limp. He could only stand and walk for five minutes. He was taking up to eight Panadeine Forte per day.
145 The plaintiff was examined by Michael Troy, general surgeon, on 8 August 2014. At that stage, surgery had not taken place.
146 Mr Troy re-examined the plaintiff on 14 November 2014, noting the recent surgery.
147 The plaintiff then said he could sit in a chair for half an hour and could stand and walk for five minutes. He was attending St John of God rehabilitation. He had less pain down his legs than pre operatively.
148 Mr Troy then thought the plaintiff was not fit for pre injury duties and hours and that it was unlikely to occur as the plaintiff spent the year pre-operatively doing office work. He noted the plaintiff was likely to go back to office duties and he suggested he could start in January 2015.
149 Mr Troy thought the plaintiff was fit for modified or alternative duties from that time similar to what he had been doing pre surgery. He noted that rehabilitation had suggested the plaintiff could be a forklift driver, mechanical engineer, draughtsman, qualify controller or a delivery driver.
150 Mr Troy suggested that of all of those jobs, the plaintiff could be a mechanical engineer or draughtsman where he could sit and stand and move at will. He could be a quality controller which would involve no heavy lifting. He could not be a delivery driver or forklift driver because of his back injury.
151 There was a re-examination on 29 September 2015.
152 The plaintiff then told Mr Troy he could sit for up to 20 minutes and there was some pain in his left buttock or sometimes in his left knee. He could stand for a similar length of time with pain in the same place. He could walk 200 metres and he did that daily with the pain in the same place in his left back and down his leg. He could bend but preferred to squat. He could go up and down stairs. On an analogue scale of ten to zero, the plaintiff was now three.
153 The plaintiff told Mr Troy that Nabenet saw him from January to June 2015. No jobs had been found for him yet. He had no computer skills and he did not know what he could do.
154 On examination, there was restricted straight leg raising and discomfort. There was some restriction of lumbar movement. There was no muscle wasting.
155 Mr Troy thought the plaintiff’s symptoms had stabilised into one of symptoms related to degenerative changes in his back at L3-4 and L4-5 plus intermittent symptoms of radicular pain into his leg. He thought symptoms would remain very much the same.
156 Mr Troy considered the degenerative changes of the plaintiff’s back would persist and deteriorate as part of the normal aging process.
157 Mr Troy thought the aggravation from pre-existing changes to the degenerative discs had resolved and the symptoms described related to the progressive degenerative changes as verified by MRI scan.
158 Mr Troy considered the plaintiff had a current work capacity, noting he grew his flowers and went bowling.
159 Mr Troy also noted the Nabenet assessment of 23 January 2015 where a number of suitable jobs were set out, which Mr Troy thought were all within the plaintiff’s physical capacity, ensuring he lifted and bent and correctly carried and changed his position frequently in the workplace so as to cause no postural strain on the already known degenerative discs in his back at the two levels.
160 Mr Troy thought the plaintiff could do those jobs part time “and as he then becomes work hardened, or he continue on with his flower hobby and be successful at that as a commercial enterprise”.
Vocational evidence
161 There was an NES vocational assessment report of 12 November 2014. Identified suitable employment options in order of priority were: forklift driver; mechanical engineer; draughtsperson; quality controller; and delivery driver.
162 A further report from that agency dated 23 January 2015 identified the following suitable employment options in order of priority: safety officer, mechanical engineering draftsperson, technical sales representative, weighbridge operator, and customer service representative.
163 There was a Joint Return to Work Job Seeking Plan dated 24 July 2015. That document contained a summary of the plaintiff’s contact with Nabenet in the period immediately prior to.
164 On 2 June 2015, the plaintiff reported he was unable to identify any suitable jobs independently. On 23 June 2015, he agreed to Nabenet submitting job applications on his behalf.
165 On 7 July 2015, the plaintiff advised he was unsuccessful in his sales job application with Advantage Feeders. He advised he did not wish to apply for a forklift driving job.
166 The plaintiff continued to report that he suffered from pain related to his injury and was not confident in his ability to sustain new employment due to his symptoms.
167 On 21 July 2015, the plaintiff advised he did not require any further information on job seeking techniques and he had recently attended a pain management program.
Overview
168 Pain and suffering having been conceded, the only issue for determination is whether the plaintiff has a permanent loss of earning capacity of 40 per cent as at the date of hearing.[28]
[28]T1
169 To obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
170 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
171 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
172 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
173 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
174 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
175 I am therefore required to determine a “without injury” earnings figure: see Barwon Spinners Pty Ltd & Ors v Podolak.[29]
[29](Supra) at paragraph [70]
176 The parties agreed the “without injury” earnings figure was $60,730 of which 60 per cent is $36,438.[30]
[30]T9
Credit
177 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[31]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[31](2010) 31 VR 1 at paragraph [12]
178 In my view, the plaintiff is somewhat of a stoic,[32] having continued to work for a significant time post injury with increasing pain until he had to undergo surgery. He is a hardworking, highly motivated man.
[32]See Dwyer v Calco Timbers Pty Ltd (No 2) (2008) VSCA 260 per Nettle JA; Dr Shea, February 2015, St John of God Hospital
179 The plaintiff was a very truthful witness and passed the “good bloke” test, as counsel for the defendant commented.[33]
[33]T33
Work capacity
180 Whilst the counsel for the defendant did not question the plaintiff’s credit, it was submitted that he retained a capacity to work, where he would earn 60 per cent of his pre-injury earnings.[34] Whilst his motivation was not criticised, it was submitted the situation was simply the plaintiff had not found the right job, although he wanted to and could work.[35]
[34]T33
[35]T45
181 In this regard, counsel for the defendant relied on the plaintiff’s ability to work full-time in light duties before the surgery. Further, the plaintiff was starting to enjoy that work and had developed new skills doing the work expediting.
182 Whilst it was not said that the plaintiff’s pain had been totally removed after surgery, there had been a significant improvement post-operatively with the loss of severe sciatic pain.[36]
[36]T35
183 The plaintiff wanted to go back to work after the surgery. He enjoyed his job and was not lazy and wanted to be working. He agreed could have gone back to his pre injury duties had he been permitted to do so. He agreed he would be looking for light duties with no lifting where he could sit and stand at will.[37]
[37]T38
184 Reliance was also placed on Dr Weinrich’s view as of September 2014 that the plaintiff could return to some sedentary work.
185 However, Dr Weinrich’s post surgery optimism had gone by July 2015 when he reported that the plaintiff had not enjoyed the hoped for post-operative improvement expected. At that stage, the plaintiff was experiencing significant pain and restriction of function and at the end of the year, the plaintiff was referred back to Mr de la Harpe.
186 Earlier in February 2015, Dr Shea had also noted that despite regular therapy and the plaintiff participating well in the program at St John of God, there had been no further gains made.
187 Counsel for the defendant submitted the plaintiff agreed he was fit for the weighbridge job without qualification[38] and that he has the capacity to do this job.[39] On his own evidence, the plaintiff could go back to work.[40]
[38]T39
[39]T49
[40]T46
188 Counsel for defendant conceded that the plaintiff did not have any relevant earning potential through showing flowers. Growing flowers was not a job.[41]
[41]T40
189 It was submitted Mr Troy properly made concessions about the plaintiff’s unsuitability for some of the suggested jobs but he considered the plaintiff could be a quality controller with no heavy lifting.[42]
[42]T45
190 Whilst Mr Troy mentioned a capacity for part time work, it was submitted he meant that the plaintiff could ultimately work full-time after he was “work hardened.”
191 Ms Schneider’s report was criticised on the basis she concluded the plaintiff was effectively out of the workforce at the age fifty-six.[43] Her view was at odds with those medical practitioners who considered the plaintiff had a light work capacity. It was submitted that even Dr Sillcock considered the plaintiff had a capacity for theoretical employment with restrictions.
[43]T41
192 Taking these factors into account, it was submitted the plaintiff had not established the requisite loss of 40 per cent.
193 Counsel for the plaintiff submitted that where motivation and credit are not in issue, the plaintiff is the very best judge of his capacity. If he could work more he would. He is significantly restricted in his level of physical activity. He has had to give up golf completely and even the light task of potting required a day in bed.[44]
[44]T52
194 Whilst the plaintiff at times agreed with suggestions by defendant’s counsel as to his work capacity, he qualified his answers on a number of occasions, explaining he would be an unreliable employee because of his back pain.[45]
[45]T51
195 It was submitted the plaintiff’s frankness was potentially to his detriment. He had a very obliging personality. When he thought about the various components of the weighbridge job in re‑examination, the plaintiff clearly said he would be unsuitable for that role.[46]
[46]T52
196 It was submitted not only the plaintiff’s evidence but the evidence of medical practitioners and the vocational assessor had to be considered when assessing the plaintiff’s current work capacity.
197 Dr Weinrich is no longer as optimistic as post-operatively.[47] Effectively, he considers the plaintiff has no current work capacity.
[47]T54
198 It was submitted Dr Sillcock and Mr Huffam effectively shared Dr Weinrich’s view.[48]
[48]T57
199 Mr Troy only described a capacity for part-time work. It was submitted in these circumstances, part-time means part-time.[49]
[49]T60
200 It was submitted Ms Schneider’s analysis was thorough. She had a more comprehensive history of the plaintiff’s lack of education and poor literacy skills.[50] In addition to his physical limitations which resulted in an incapacity for work, the plaintiff would have a difficulty understanding various jobs because of his lack of literacy skills.[51]
[50]T56. The plaintiff had not completed Year 10 as Nabenet recorded
[51]T60
201 It was submitted the plaintiff’s condition is permanent, as Mr de la Harpe described. That condition is not simply one of sciatic pain, but it is a broader type pain into the legs and back. These problems are at two levels, as Mr Troy explained.[52]
[52]T58
202 Taking into account all these factors, it was submitted the plaintiff had suffered the requisite loss on a permanent basis.
Findings
203 In my view, given the plaintiff’s pre injury work history and his attempts to continue in the workforce thereafter, he would be working if he had the physical capacity to do so.
204 Clearly, the plaintiff had difficulty with light duties pre surgery because he had to cease work in July 2014 to undergo surgery because of his increasing back pain.
205 Although the plaintiff at times in cross examination agreed that he could return to light work, he qualified this response by explaining he would be an unreliable employee.
206 Save for Mr Troy, the consensus of medical opinion is the plaintiff effectively has no capacity for suitable employment. In any event, Mr Troy appears to consider the plaintiff’s capacity is for part time work.
207 The plaintiff has fully cooperated with Nabenet’s attempts to obtain employment on his behalf but to date, these have not been successful. I accept that if a job was suggested, the plaintiff would try to work but he would have the difficulties described by him and be unable to work more than a few hours a day, a couple of days a week.[53]
[53]T62
208 I accept the plaintiff cannot work because of ongoing back and leg pain requiring significant daily medication, problems with prolonged standing and sitting and difficulty sleeping causing fatigue the following day.
209 Whilst his sciatic pain has gone, the plaintiff continues to suffer significant back pain on activity or prolonged posture that would not make it possible for him to reliably attend work on a regular basis. At times, the pain is so bad, that he needs to lie down for days, as was the case recently after simply potting some plants.
210 Taking into account all of the evidence, I am satisfied the plaintiff does not have the capacity to work on a reliable basis in any restricted capacity, including the weighbridge job.
211 In those circumstances, the plaintiff has suffered the requisite loss of 40 per cent. In my view, this loss is permanent.
212 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
213 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
214 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
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