Smith v Transport Accident Commission; Smith v Victorian WorkCover Authority
[2020] VCC 184
•5 March 2020
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-03958
CI-17-03946
| TREVOR IAN SMITH | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 April 2019 and 1 May 2019 | |
DATE OF JUDGMENT: | 5 March 2020 | |
CASE MAY BE CITED AS: | Smith v Transport Accident Commission; Smith v Victorian WorkCover Authority | |
| MEDIUM NEUTRAL CITATION: [First revision 5 May 2020] | [2020] VCC 184 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – aggravation injury to spine – identity to injury – serious consequences
Legislation Cited: Accident Compensation Act 1985, s134AB; Transport Accident Act 1986, s93
Cases Cited:Dalton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183; Guppy v Victorian WorkCover Authority [2010] VSCA 164; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249; Petkovski v Galletti [1994] 1 VR 436; Cardiff Corporation v Hall [1911] 1 KB 1009; Richter v Driscoll [2016] VSCA 142; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to issue proceedings at common law for economic loss and pain and suffering damages against G & K Hore Industries Pty Ltd. Application against Transport Accident Commission dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh with Ms K Gladman | Shine Lawyers |
| For the First Defendant | Ms R Annesley QC with Ms J E Clark | Solicitor to the Transport Accident Commission |
| For the Second Defendant | Mr D McWilliams with Ms K M Manning | Wisewould Mahony |
HIS HONOUR:
1 The plaintiff seeks a serious injury certificate pursuant to s93 of the Transport Accident Act 1986 (Vic) (“the TAA”) in relation to his spine as a result of a transport accident that occurred in the course of his employment with G & K Hore Industries Pty Ltd (trading as “Euro City Motors”) on 12 September 2011.
2 The plaintiff also seeks a serious injury certificate pursuant to s134AB of the Accident Compensation Act 1985 (Vic) (“the ACA”) in relation to his spine as a result of an injury that occurred in the course of his employment with Eurocity:
(a)on 22 July 2014, when he hit his head on the wheel of a car (“the July 2014 injury”); and
(b)in August 2014, when he was undertaking heavy clean-up tasks (“the August 2014 injury”).
3 The proceedings were heard together over the course of three days at the Court sitting in Geelong.
4 The application against the Transport Accident Commission (“the TAC”) relates to an aggravation of a cervical and lumbar spinal condition which the plaintiff claimed he sustained due to a motor vehicle accident on 12 September 2011, suffered in the course of his employment. It is common ground that within the definition of “injury” in s3 of the TAA, an aggravation of a pre-existing injury is, itself, an injury.
5 The application against G & K Hore Industries relates to two separate injuries referred to above, where, once again, each individual injury is said to be an aggravation of a cervical and lumbar spinal condition. What was in contention was whether the plaintiff suffered a “serious injury” within the meaning of paragraph (a) of the definition of that term in s134AB(37) of the ACA as a result of either of the G & K Hore Industries’ injuries. It is common ground that a “serious injury” with respect to all of the injuries means “permanent serious impairment of loss of a body function”.
The template
6 As it was common ground that the plaintiff is relying on three separate compensable injuries as outlined above, I am constrained to consider the application for leave to commence common law proceedings against both defendants in the following manner:
(a) first, I must identify each injury;[1]
[1]Dalton v Dandenong Scaffolding Hire Company Pty Ltd [2003] VSCA 183
(b) secondly, I must delineate the impairment consequences of each injury;[2]
[2](ibid) at paragraphs [14], [39], [47] and [49]
(c) thirdly, each of the three injuries, being an aggravation of a pre-existing injury to the spine, must be treated as separate injuries and must, individually, qualify as a “serious injury” under s93 of the TAA and under s134AB(37) of the ACA, as amplified by s134AB(38) of that Act;[3]
[3]Guppy v Victorian WorkCover Authority [2010] VSCA 164
(d) fourthly, I am constrained to make a comparison between the plaintiff’s condition before the transport accident injury and his condition after that injury, and thus make an assessment of the additional impairment, and the process for each of the G & K Hore Industries’ injuries;[4]
(e) fifthly, as the three injuries arise from separate incidents, they cannot be accumulated. Each of the three injuries has to satisfy the requirements of a “serious injury” in its own right rather than in combination with any other injury.[5]
[4]De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249 at paragraphs [9] and [11]
[5]Petkovski v Galletti [1994] 1 VR 436 at [444]
The pre-existing conditions: lumbar and cervical spine
7 It would appear from the medical records that the plaintiff has had a symptomatic, and probably chronic, spinal condition, which has fluctuated in severity over the years from approximately 1994 up until the time of his transport accident.
8 In a history provide to Associate Professor Stark, the plaintiff related, with respect to a 1990 transport accident:
“He told me that his car went into a tree at 100kph. He hit his head and face and suffered a fractured patella. He thinks he was unconscious for a few minutes or even as long as half an hour. He thinks he suffered a whiplash injury as well and is inclined to attribute his later spinal problems in the 1990’s and early 2000’s to a late effect of that accident.”[6]
[6]Exhibit TAC-4, TAC Court Book at page 66
9 On the evidence before me, the plaintiff’s first recorded complaint in relation to his lower back was on 31 August 1994 to his general practitioner at the Grovedale Medical Centre.[7]
[7]Exhibit TAC-9, TAC Court Book at page 111
10 Further, on 7 September 1994, the plaintiff complained that his back “killed him” when he coughed or sneezed.[8]
[8]Exhibit TAC-9, TAC Court Book at page 111
11 As a result of these complaints, his general practitioner ordered x-rays dated 8 September 1994 and was of the view that the plaintiff “had a disc problem at L5-S1”.[9]
[9]Exhibit TAC-9, TAC Court Book at page 111
12 On 21 September 1994, the plaintiff had pain down his leg with bending forward, twisting and leg straightening.[10]
[10]Exhibit TAC-9, TAC Court Book at page 110
13 Apparently the plaintiff’s back pain continued and by February 1995, he had back pain for approximately six months that had been worsening.[11] He was referred for a CT scan and was referred to Dr David Vivian, a musculoskeletal physician, on 27 February 1995.[12]
[11]Transcript (“T”) 48
[12]Exhibit TAC-9, TAC Court Book at page 110
14 In his report dated 3 March 1995, Dr Vivian took a history that the plaintiff described a second attack of sciatica over the past six days and that he had one early in mid-1994, but it was transient.[13]
[13]Exhibit VWA-3, VWA Court Book at page 3
15 A CT scan of 27 February 1995 showed an L4-5 disc prolapse, and Dr Vivian gave the plaintiff an epidural, but this did not apparently “touch the spot”. Dr Vivian suggested the “disc prolapse is very large, and perhaps lateral” [and may require] surgical decompression.[14]
[14]Exhibit VWA-3, VWA Court Book at page 3
16 From approximately 27 March 1995 to 21 July 1995, the plaintiff attended the Grovedale Physiotherapy Clinic for treatment.[15]
[15]Exhibit TAC-8, TAC Court Book at page 94
17 On 13 August 1999, the plaintiff again attended Grovedale Physiotherapy in relation to his back. It is noted that he is employed as “semi disabled” at work and that his back had been sore, especially for the last three weeks.[16]
[16]Exhibit TAC-9, TAC Court Book at page 106
18 In January 2001, the plaintiff apparently had a second motor vehicle accident. He attended Grovedale Physiotherapy on that day, complaining of a sore back, neck and foot.[17]
[17]Exhibit TAC-9, TAC Court Book at page 104
19 The plaintiff then was employed by Mr Hore, trading as Eurocity Motors, from 1996 to approximately 2000, as a “disabled” apprentice motor mechanic.[18] I infer that this “disability” is probably related to his lumbar and perhaps cervical condition.
[18]Exhibit VWA-1, VWA Court Book at page 9
20 Between 2000 and 2005, the plaintiff was employed elsewhere as a motor mechanic at a firm known as “Peck & Stokes”.
21 Between April 2002 and August 2004, the plaintiff attended the Grovedale physiotherapist for treatment to his spine on at least twenty-one occasions.
22 Specifically in May 2002, the plaintiff was complaining of neck pain. He did not attend work that day and was having trouble sleeping, and was referred for an x-ray.[19]
[19]Exhibit TAC-9, TAC Court Book at page 103
23 The plaintiff attended again in June 2002 with pain in the shoulder, in the neck between C3 and C6 and the lower back.[20] He was given a week off work by his general practitioner[21] and was thereafter placed on modified duties until approximately 20 July 2002 in relation to his shoulder and cervical spine.[22]
[20]Exhibit TAC-9, TAC Court Book at page 103
[21]Exhibit TAC-9, TAC Court Book at page 121
[22]Exhibit TAC-9, TAC Court Book at page 122-124
24 On 24 June 2002, the plaintiff complained to his general practitioner that his back was “killing” him and that his neck hurt when he turned to the right. He was also given a trial of magnets.[23]
[23]Exhibit TAC-9, TAC Court Book at page 102 and Plaintiff’s Court Book (“PCB”) 226-227
25 By 5 July 2002, apparently the neck and shoulder had improved, “but it was not 100 per cent”.[24]
[24]Exhibit “R”, PCB 226
26 Currently the plaintiff continued with his duties and by June 2004, he had a further flare up of right shoulder and neck pain which was aggravated by coughing. He attended for physiotherapy at the Grovedale Manipulative Therapy Physiotherapy Centre and underwent a further x-ray of his cervical spine in July 2004.[25] He was thereafter certifying for modified duties from July 2004 to December 2004, effectively for his neck and shoulder.[26]
[25]Exhibit TAC-9, TAC Court Book at page 100 and also page 83
[26]Exhibit TAC-9, TAC Court Book at page 126-133
27 An x-ray of the cervical spine taken on 7 July 2004, taken as a result of six to eight weeks’ right shoulder pain, appears to be essentially normal, but at least is consistent with some ongoing pain, if not pathology.
28 On 8 July 2004, a claim form with respect to Peck & Stokes relates to “soreness in right neck area. Fell on shoulder a few years ago. Trying to undo a very tight axle nut.”[27]
[27]Exhibit “S” at PCB 223-224
29 In February 2005, the plaintiff attended Grovedale complaining of aches around both shoulders and the lower back. On examination, he was found to have “a tight cervical spine … and lower back”.[28]
[28]Exhibit “S” at PCB 221
30 The plaintiff recommenced employment with Eurocity around the middle of 2005 and perhaps August 2005.[29] In any event, he was still having treatment from his general practitioner as at 8 June 2005, with “dramas with neck and shoulder”.[30]
[29]T66 and Exhibit “B”, Claim Form at PCB 51”
[30]Exhibit “S” at PCB 220
31 A letter by neurosurgeon, Mr Steven Jensen, to the plaintiff’s general practitioner, Dr Taylor, dated 25 July 2005, suggests the plaintiff is having problems with his right shoulder girdle and the pain is consistent with cervical spine referred pain, most likely C5-6.[31]
[31]Exhibit VWA-6 at VWA Court Book 61
32 There was a further note from Dr Jensen, that on 21 July 2005, he has taken a history from the plaintiff for a sore neck and shoulder from working overhead using his right arm.
33 On 27 September 2005, the plaintiff attended Dr Jensen seeking authorisation for a gym program.[32] Further, on 4 November 2005, he again attended Dr Jensen, complaining of pain while working overhead.
[32]Clinical notes of Dr Jensen
34 On 9 September 2005, Dr Jensen wrote to CGU Insurance Company stating that the plaintiff was suffering from chronic spinal pain as a result of a work injury.[33] Prior to the motor vehicle accident on 12 September 2011, the plaintiff had attended Lara Physiotherapy in July 2011, where he gave a history of neck pain after walking and that his head felt heavy, and that these symptoms were aggravated by gear changes in the car and sitting.[34]
[33]Exhibit TAC-3 at TAC Court Book 64
[34]Exhibit TAC-9 at TAC Court Book 119
35 The plaintiff’s employer, Mr Grant Hore, has sworn that he employed the plaintiff in 1996 as a disabled apprentice motor mechanic due to an earlier back injury.[35]
[35]Exhibit TAC-11 at TAC Court Book 9
36 Mr Hore further swore, prior to his injury in September 2011, that the plaintiff went camping with him on the Murray River at Easter time, where he did “a bit of knee-boarding or riding a tube”.[36]
[36]Exhibit TAC-11 at TAC Court Book 10
37 Further, prior to his commencement of employment in 1996, he told Mr Hore that he did up a house, building a huge mezzanine floor in his shed during a previous marriage, and he would often complain to Mr Hore about how much pain he was suffering stemming from this activity prior to September 2011.[37]
[37]Exhibit TAC-11 at TAC Court Book 10
38 Mr Hore further reported that the plaintiff:
“… was fairly restricted from his original injury in 1990 which I thought impacted his back, not so much his knees that I was aware of. He remained this way throughout his employment and the 2011 injury did not impact this further to an extent that I can recall. Only the 2014 injury when he hit his head and aggravated his back further. In fact the only time he had off following the 2011 accident was to attend physiotherapy sessions which he generally did during his lunch break or alternatively leave ½ hour early. He lost no time from work as a result of his injury.”[38]
[38]Exhibit TAC-11 at TAC Court Book 11 at paragraph [21]
39 Further, Mr Hore has sworn:
“I probably gave Trevor the least physical jobs being the general servicing to do as he was also quite slow which he was throughout the period of his employment, not varying post his accident.
The quality of his work was always good.
Following his 2011 car accident I did not need to change his role however, following Trevor hitting his head on a tyre on 22 July 2014 (for which a WorkCover claim was submitted) I did have to vary his duties as this accident further aggravated his pre-existing neck and back injury.”[39]
[39]Exhibit TAC-1, TAC Court book 12 at paragraphs [29]-[31]
40 Further, Mr Hore swore:
“Trevor due to the earlier accident [1990] was careful in the way he lifted things and at times he would complain when under the hoist for any period of time as this required him to be looking up with his neck/head bent back or tilted. As such, I would tell him to do something else for a while to break this up or to get someone to give him some assistance. He would become frustrated by this at times, not wanting to ask for assistance.”[40]
[40]Exhibit TAC-1, TAC Court book 11 at paragraph [24]
41 Mr Hore’s evidence was not challenged at trial by cross-examination.
42 As against these facts, the plaintiff relies on the fact he attended the Lara Physiotherapy Clinic from September 2011 to September 2012, on about forty occasions, for treatment to his lower back and neck.[41]
[41]T145
43 In his first affidavit, sworn 4 April 2017, the plaintiff swore:
“After the accident I suffered from pain in my neck and back. I also had some shooting pains down my left leg. My pain persisted over the following weeks. I went to see a physiotherapist at Lara Physiotherapy. I then began to receive physiotherapy treatment on a regular basis for my neck and back pain. I also went to see my GP, Dr Nik Kozlov, and he arranged for an x-ray of my neck.
During 2012 I continued to have physiotherapy treatment at Lara Physiotherapy for both my neck and my lower back. I suffered from ongoing pain in both my neck and back which did not go away. I also continued to suffer from occasional shooting pains down my left leg. Despite the pain I was able to keep working as a mechanic. My work duties aggravated my back and neck pain but I had to soldier on and keep working to pay the mortgage. I managed to strike my head on a wheel on 22 July 2014 and this further aggravated my neck pain. I then had a further x-ray of my neck.”[42]
[42]Exhibit “A”, PCB 33 at paragraphs [7]-[8]
44 Although the plaintiff asserts his work duties aggravated his back and neck pain, there are no specific instances consistent with injury caused to those areas during this period due to his work and there is a paucity of medical material to support any such further injury or impairment.
45 In his second affidavit, sworn 29 March 2019, the plaintiff expanded on the period post the motor vehicle accident as follows:
“(a)Between September 2011 and September 2012 I attended the Lara Physiotherapy Clinic on a very regular basis. I attended almost weekly up to about 40 occasions. I was mainly treated by Mr Henderson for neck and back pain. I continued to experience significant issues with my lower back with referred pain into my left leg, mainly my thigh and a painful neck.
(b)I also attended the Lara Physiotherapy Clinic in about November 2014 and September 2016 for ongoing treatment;
(c)In about February 2015 I attended the Corio Physiotherapy Clinic in Bacchus Marsh Road, Corio and was mainly seen by David Golding on referral from Dr Waldron of the Grovedale Medical Centre. When I first attended Mr Golding I advised him that I had ongoing issues with respect to lower back and neck pain since the motor vehicle accident in September 2011 and also worsening pain as a result of my work duties. I attended Mr Golding on about 26 occasions between February 2015 and August 2015.”[43]
[43]Exhibit “A”, PCB 33 at paragraphs [7]-[8]
46 I note that on this history, the medical treatment for the plaintiff’s neck and back referable to the motorcar accident and prior to July 2014, was limited to the physiotherapy which concluded in September 2012.
47 The plaintiff further swore in this affidavit:
“Between September 2011 to August 2016 (when I ceased work) I continued to experience significant ongoing problems with my lower back (which caused left leg pain) and neck pain. I was able to manage at work with the assistance of my employer. My colleague, Ben Leeke was an apprentice who would assist me in performing a number of the more difficult aspects of my work duties. I had difficulties with a number of work activities due to spinal pain including: (a) any bending duties involving lifting of any equipment; (b) reaching and/or pulling which put pressure on my spine; (c) lifting any heavy materials or car parts; (d) standing for long periods of time; (e) performing extended strenuous activities over the course of the day; (f) bending and straining my neck and back whilst looking at cars when they are on hoists;
All of which activities placed significant stress and pressure on my spine.”[44]
[44]Exhibit “A”, PCB 33 at paragraphs [7]-[8]
48 Once again, this paragraph is consistent with ongoing difficulties due to pre-existing problems with his neck and back, consistent with the:
(a) pre-existing cervical and lumbar condition; and/or
(b) possibly aggravation due to the work duties so described.
49 The plaintiff further swore in this affidavit:
“Between September 2011 and August 2016 I was also required to take medication from time to time due to spinal pain. But for the assistance of my employer, receiving ongoing physiotherapy treatment and taking medication, I believe that I would have had to cease work much sooner than August 2016.”[45]
[45]Exhibit “A”, PCB 33 at paragraphs [7]-[8]
50 There is no specific evidence here that correlates to the aggravation injury suffered in the motor vehicle accident which, in my view, assists the plaintiff in isolating the consequences of the 2011 motor vehicle accident, save for the physiotherapy treatment between September 2011 and September 2012, nearly three years prior to the first alleged workplace injury.
51 Further, I am not satisfied that the September 2011 injury interfered with the plaintiff’s work capacity to any significant extent that would satisfy the “very considerable” test given the fact that his prior spinal condition had already compromised his ability to function as a “normal” motor mechanic.
52 Added to this is the paucity of medical or pain-relieving treatment in the period leading up to the first work injury, such that, in all, I am not satisfied that the transport injury satisfies the test laid out in the template above.
The 2014 workplace injuries
(a) 22 July 2014 injury
53 The employer, in its written submission, accepts that an incident occurred on 22 July 2014, consisting of a soft-tissue injury to the plaintiff’s cervical spine when his head struck a motor vehicle hoist in the course of his employment. It is alleged the consequences of this injury were temporary and had resolved entirely, or to such an extent the consequences would not satisfy the serious injury test.
54 Although the plaintiff made a claim in respect of this injury on 28 July 2014, citing injury to his neck and lower back, and such claim was accepted on 5 September 2016 with respect to medical and like expenses, the contemporary medical evidence demonstrates the following. The plaintiff’s general practitioner, Dr Kozlov, has a clinical note dated 25 July 2014 to the effect:
“[T]wisted his neck at work several days ago. Developed pain. Had motor vehicle accident neck injury several years ago. The same pain.”[46]
[46]Exhibit “U”, PCB 275
55 Then, on Friday, August 1, 2014, Dr Kozlov notes “neck pain is getting better. X-rays showed osteoarthritis”.[47] There is no further attendance on Dr Kozlov until 25 August 2016, wherein he notes:
“Has had a motor vehicle accident on 12 September 2011; work-related. Has had a whiplash injury of the neck at that time! Chronic pain in the neck since.”[48]
[47]Exhibit “U”, PCB 275
[48]Exhibit “U”, PCB 275 and 276
56 Thereafter, the plaintiff changed to general practitioner, Dr Rod Taylor, who saw him on 12 November 2014, with a complaint of back pain that had been “getting bad the last 1 to 2 weeks”.[49] The only reference to pain in the neck was “can get abdominal pains – low and sometimes in neck”. Reason for visit: “back pain”.[50]
[49]Exhibit “F”, PCB 95
[50]Exhibit “F”, PCB 95
57 An x-ray of the cervical spine ordered by Dr Kozlov dated 25 July 2014 recorded: “Mild facet joint degenerative changes C7-T1”[51] and “Mild anterior osteophytic C4”.[52]
[51]Exhibit “D”, PCB 63
[52]Exhibit “D”, PCB 63
58 There is no other reference to his neck pain from the general practitioner until 6 November 2015, wherein there is a quote “Neck +++ tight”.[53]
[53]Exhibit “S”, PCB 207
59 The next reference to his neck is 21 March 2016 to the following effect:
“Neck sore – since motor car accident 4 years ago – hit from behind 27 February 2012. Low thoracic spine sore.”[54]
[54]Exhibit “S”, PCB 204
60 The next reference to neck pain is 12 September 2016 to the following effect:
“Cervical spondylosis – waiting for results – discussed surgery for radiculopathy not for neck pain.”[55]
[55]Exhibit “S”, PCB 200
61 When the plaintiff was seen by Dr Timothy Woods, sports physician, for the TAC on 1 May 2015, he gave the following history:
“… Firstly on 22nd July 2014 a car was up on a hoist and he walked into the wheel of the car. He hit the side of his head through his neck and he had some neck pain and some minor back pain.
The back became significantly worse though when a week or two later they were doing cleanup at work. This involved stacking tyres overhead repeatedly and this is when his back became more sore.”[56]
[56]Exhibit “W”, TAC Court Book at page 88
62 When referred to neurosurgeon, Mr Paul D’Urso, on 11 December 2014, the plaintiff gave a history as follows:
“He walked into the wheel of a car that was up on a hoist. He struck his head and developed immediate neck and back pain and felt quite dizzy.”[57]
[57]Exhibit “P”, PCB 170
63 There was no apparent history of the clean up some weeks later.
64 The plaintiff complained to his general practitioner, Dr Taylor, on 27 October 2014, of both neck pain and back pain.[58] From 12 November 2014 onwards, he was treated virtually exclusively for his lower back pain, with no comment about its onset until 16 February 2015. On that occasion, it was noted that he had chronic back pain in the thoracic and lower lumbar spine which had “been there for 3 years since the motor car accident when he was doing a job at work, where he was rammed hard in the back”.[59]
[58]Exhibit “S”, PCB 215
[59]Exhibit “S”, PCB 212
65 On this occasion, there was no mention of either of the 2014 injuries.
66 When seen by a physiotherapist for treatment on 18 February 2015, it would appear that the plaintiff attributed his chronic lower back pain and neck pain to “work require[ing] repetitive overhead work as well as the repetitive lifting of tyres”,[60] which is consistent with the August 2014 injury being the main cause of his back pain. I consider that this is corroborated by the TAC pain physician, Dr Tim Wood’s, assessment on 1 May 2015 referred to above.
[60]Exhibit “H”, PCB 89
67 This assessment is probably corroborated by pain physician, Dr Paul Verrills, in his report dated 21 February 2019, wherein he remarked on the history taken, first, on 8 May 2015 to the following effect.
“Trevor Smith worked as a motor mechanic and developed back pain in 2014. The dominant pain was in his lower back but he also had pain between the scapulae and neck pain. The pain came on at work with repeated activities including a lot of cleaning up around the workplace. In particular, I understand that his workplace was reorganising the tyre storage and this involved repeated reaching-up over his head to place tyres in different positions.”
68 Further, it was Dr Verrills’ opinion that:
“… this man did have an impactful injury in the workplace that resulted in severe ongoing mixed neuropathic and nociceptive pain in both the low back and interscapular region.
Further, it is my view that his pain and disability arise from the incidents in his workplace and not from a prior motor vehicle accident.
…
At the time I last saw Trevor Smith, I believed that he was incapacitated for work and was likely to remain so for the foreseeable future.”
69 In its proceeding, the VWA tendered a report of occupational physician, Dr Leon Le Leu, dated 22 July 2016. Dr Le Leu was provided with the following history from the insurer:
“‘On 22 July 2014, the worker walked into a car wheel whilst the vehicle was in the air on a hoist. It is reported that he hit the side of his heads through his neck and had some neck pain and minor back pain. A week or two later, the worker reported that a clean-up occurred at work involving stacking tyres overhead repeatedly and this was when his back became more sore.
…
The worker is currently diagnosed by his general practitioner as having L5/S1 disc prolapse and spondylolisthesis. Intermittent sciatica. Thoracic facet joint pain T3/4/5/6/7 on the right and rib pain in the right 4th and 5th ribs.’
The worker is currently certified as fit to complete suitable duties with modifications to sitting, bending: squatting, kneeling, lifting and reaching above shoulder height.”[61]
[61]Exhibit VWA-3, VWA Court Book at pages 5-6
70 Further, Dr Le Leu reported:
“Throughout the worker’s claim, he has had no significant time off: and has been completing the pre-injury hours, on modified duties which the employer provided for him.
The worker has been given notice that his position will be made redundant in early August 2016.”[62]
[62]Exhibit VWA-3, VWA Court Book at page 6
71 Further, Dr Le Leu took a history directly from the plaintiff as follows:
“He recalled the accident you mention on 22.07.2014, when he walked into the car wheel but he said this was preceded by years of heavy lifting at work. Following the wheel injury, he developed neck and upper back pain and low back pain. He thinks he could have been stacking tyres a week or more afterwards and the lower back pain was worse after that.”[63]
[63]Exhibit VWA-3, VWA Court Book at page 7
72 When asked his opinion about “the work incident which occurred on 22 July 2014”, Dr Le Leu stated:
“He has had exacerbation of pre-existing degeneration of the lumbar spine.”[64]
[64]Exhibit VWA-3, VWA Court Book at page 11
73 However, after stating that the plaintiff was incapacitated for work as a mechanic, he stated:
“His partial incapacity is still materially contributed to by heavy repetitive lifting.”[65]
[65]Exhibit VWA-3, VWA Court Book at page 12
74 Further, Dr Le Leu stated:
“There was an aggravation of a pre-existing degeneration and abnormality but the aggravation has not ceased.”[66]
[66]Exhibit VWA-3, VWA Court Book at page 12
75 Further, Dr Le Leu noted:
“There is some evidence of radiculopathy now. I note that Dr Timothy Wood recorded ‘dulled lower limb reflexes’ but now the knee jerks are completely absent and the straight leg raising is reduced with increased posterior thigh pain.”[67]
[67]Exhibit VWA-3, VWA Court Book at page 13
76 Dr Le Leu reviewed the plaintiff and reported on 17 July 2017.[68] On this occasion, the plaintiff gave the following history:
[68]Exhibit VWA-3, VWA Court Book at page 14
“He said his neck and lower back pain continued after the car accident [September 2011]. He put in the claim last year through his solicitor since earlier he did not think you could put it in if the employer did not have insurance. He had not realised he could still put in a claim and thought he was, to use his term ‘screwed’.
The employer paid for physiotherapy for a while and then complained about having to pay for it so stopped paying. At that time, he had been going to physiotherapy for a bit less than one year. He thinks it was helping since initially he could not move his neck; the dry needling was the aspect of the treatment that made his neck move … .
He says his solicitors put in a claim for the 2011 accident last year in addition to the more recent injury. He says he further aggravated his neck pain on 22.07.2014 when he struck his head on a wheel. This was three years after the 2011 accident when he was still working for the same employer. He recalled that a car was up in the air being serviced and he hit his head on one of the car wheels. He had turned around not thinking the car was there and he hit it so strongly he just about passed out. That episode increased his neck pain.
Two weeks after that he was required to do a major clean-up of the workshop and had further pain in his lower back. He thinks this also worsened his neck a little. He was doing a lot of looking up stacking tyres on a rack; these were rims with the tyres on them, so they were pretty heavy. He was not supposed to be doing that but was intended to be on light duties from the 2011 accident.
His employment was then terminated because his boss reportedly felt there was not enough work for him. Mr Smith feels he was terminated because he could not do very much and he had to keep asking his boss and a colleague for help with what he could do.”[69]
[69]Exhibit VWA-3, VWA Court Book at page 17
77 On this occasion, the plaintiff described his neck pain as “not too bad at present” and that his lower back was the main area of pain and it extended across the lower back. Dr Le Leu noted he had had physiotherapy every week until it was cut off months ago, perhaps on 4 May 2017. He was on Tramadol, 400 milligrams maximum; Lyrica, 600 milligrams maximum and Celebrex, and he was taking all these drugs every day.
78 Further, the plaintiff told Dr Le Leu “[h]e has always done physical work and has never done office work. He can use a computer ‘a little bit but not real good’; it is hard staying in the one spot to do such work.”[70]
[70]Exhibit VWA-3, VWA Court Book at page 18
79 Without giving any specific occupations, Dr Le Leu suggested the plaintiff’s restrictions should be:
“• no lifting, carrying, pushing or pulling greater than 5 kgs or horizontal force equivalent)
• no repetitive or sustained neck bending or twisting
• no repetitive or sustained lower back bending or twisting
• no work on ladders or at heights
Depending on the type of light work identified, he might be able to achieve full time after a graduated return to work did starting off at four hours three days a week and increasing to full-time over a period of four weeks. His ability to increase to full time would depend upon the progress of his symptoms after commencement of work.”[71]
[71]Exhibit VWA-3, VWA Court Book at page 22
80 Dr Le Leu saw the plaintiff again on 21 February 2018 and, once again, he gave a consistent history of the two injuries on 22 July 2014 and the second injury some two weeks later.[72] Further, Dr Le Leu stated:
“… It was not clear that the episode in which his head hit a car wheel exacerbated his lower back pain however, two weeks after that episode he was required to do a major clean-up of a workshop and had further pain in his lower back … .”[73]
[72]Exhibit VWA-3, VWA Court Book at page 26
[73]Exhibit VWA-3, VWA Court Book at page 27
81 As to his work history, the plaintiff related:
“He has not been working since last seen and he could see his boss got rid of him for financial reasons since ‘the other bloke’ was doing his own job plus half Mr Smith’s job.
He could no longer do the heavy work involved with being a mechanic.”[74]
[74]Exhibit VWA-3, VWA Court Book at page 28
82 Dr Le Leu once again repeated the restrictions he had set out in his report of 17 July 2017. Finally, Dr Le Leu was of the opinion:
“… He will never be able to get back to work of a moderately to highly physical nature.”[75]
[75]Exhibit VWA-3, VWA Court Book at page 31
83 The employer submits that the clean-up injury never occurred. In essence, it relies on the affidavit of Mr Hore, swore 22 March 2019.[76] In a statement annexed to the affidavit, Mr Hore stated:
“Following his 2011 car accident I did not need to change his role however, following Trevor hitting his head on a tyre on 22 July 2014 (for which a WorkCover claim was submitted) I did have to vary his duties as this accident further aggravated his pre-existing neck and back injury.”[77]
[76]Exhibit TAC-1
[77]Exhibit TAC-1 at page 12
84 Further, Mr Hore stated:
“As a result I reduced his physical tasks and had him attempt to deal more directly with the customers by way of answering the incoming phone calls, discussing their issues and requirements and preparing invoices. However, he did not cope well with this change mentally/emotionally. This as he found the demands of this with phone calls and customer attendance too busy for him where he’d been able to work at his own pace previously.
…
I was not aware that Trevor had allegedly injured himself further when undergoing a major clean-up of the workshop as he alleges later occurred in July/August 2014. He did not undertake a ‘major clean-up’ as he alleges ad we did this daily at the start of the day which entailed sweeping up, tidying up tools, throwing out any rubbish and putting parts away. I normally put any orders away myself.
Most of our tyres are 2nd hand and as such these were normally stored on the floor until I would put these up onto the rack by using the forklift or manually. Trevor was not asked to do this being aware of his condition and he had never informed me of an injury allegedly occurring in this manner.
Further, no Incident Report or Workcover claim was ever completed for this situation and no certificates of capacity were received by me either.”[78]
[78]Exhibit TAC-1 at page 13
85 Thereafter, Mr Hore stated:
“Trevor did not provide certificates of capacity (as attached) at various times during 2015 and 2016 highlighting his fitness for light duties only with no lifting above 10 kg until this was increased to 15 kg. At these times his work activities remained as above and at times I had had to instruct him to use the tyre lifter machine as he would attempt to do this manually in contradiction of his restrictions.”[79]
[79]Exhibit TAC-1 at page 14
86 Counsel for the employer makes valid submissions about the Claim Forms dated 28 July 2014 and 26 August 2016, not referring to the “clean-up” injury. On the other hand, I found the plaintiff basically straightforward in giving his evidence and did not feel that he was being evasive. It is true enough that there is an absence of the corroborating evidence, as outlined by counsel; however, on balance, I accept the plaintiff’s evidence that there was an incident some two weeks after the hoist incident, whereby he worsened his back condition to the point that he required treatment consisting of investigations, physiotherapy and strong medication until he ceased work in August 2016. Whatever the precipitating reason for his retrenchment, it is clear enough on Mr Hore’s own evidence, the plaintiff was only doing half a job because of the assistance of the other employee. Also, the plaintiff was giving a history of various treatments while he was still at work and prior to ceasing work leading to the present claim. I do not believe the varying histories that have been given to various doctors are the result of any chicanery on his part, but due to the fact that over a large number of years he has had a large number of injuries which, from time to time, have resulted in ongoing pain and restriction.
Analysis
87 Both leading Counsel for the plaintiff and Senior Counsel for the TAC submit there was a significant change in the plaintiff’s position following the July 2014 and August 2014 workplace injuries. In support, the TAC submits:
(a)the plaintiff required significant treatment and a number of radiological investigations;
(b)the x-ray of his cervical spine on 25 July 2014 revealed facet joint degenerative changes at C7-T1, which were not present in the 2011 imaging;
(c)Surgery was completed.[80]
[80]Exhibit “D”, PCB 62-76
(d)the Lara Physiotherapy records reveal that as of November 2014, the plaintiff was being prescribed Panadol, Endone, Deep Heat and Nurofen for his lumbo-spinal condition;[81]
(e)CT scan of the lumbar spine, 13 November 2014, revealing, inter alia: pars defects at L5-S1 with minor spondylolisthesis. Foraminal encroachment at the L5-S1 bilaterally without high-grade neural compromise. Elsewhere, minor annular disc bulging without neural compression;[82]
(f)MRI Scan of the lumbar spine, 25 November 2014, concluding: “small central disc bulge at L5/S1, with a small fragment of disc touching and slightly displacing the descending left S1 nerve root”;[83]
(g)clinical note from Grovedale Medical Centre, 28 January 2015, “back pain, crook back PARS defect. OxyContin for pain, get onto care plan for physiotherapy”;[84]
(h)Grovedale Medical Centre, 26 February 2015, “WorkSafe rang query spinal fusion;”[85]
(i)clinical note, 23 March 2015, Grovedale Medical Centre, “back pain, still sore – add Lyrica. Plus OxyContin”;[86]
(j)October 2015, reviewed by pain specialist, Dr Verrills. It was noted Dr Paul D’Urso’s suggestion that fusion surgery could be considered;[87]
(k)22 July 2016, report and examination by Dr Leon Le Leu. Current medication being “Lyrica 600 mg daily, Tramadol 400 mg daily, Celebrex 200 mg daily, Endep 10 mg daily”;[88]
(l)2 August 2016, Certificate of Capacity from general practitioner certifying no work capacity.[89]
[81]Exhibit “U”
[82]Exhibit “D”, PCB 64
[83]Exhibit “D”, PCB 67
[84]Exhibit “S”
[85]Exhibit “S”
[86]Exhibit “S”
[87]PCB 107
[88]Exhibit VWA-3, VWA Court Book at page 13
[89]Exhibit “S”
88 It is thus clear that the predominant medical problem affecting the plaintiff is his lumbar spine and the treatment and investigations occasioned thereby.
89 It is also consistent in the plaintiff’s treatment history that he related the clean-up procedure to a worsening of his back complaint which led to the surfeit of treatment and ultimately, cessation of work.
90 As pointed out by various counsel, there are varying histories relied upon by various doctors in furnishing their opinions.
91 Having accepted the plaintiff as essentially a witness of truth, I accept the submission by Senior Counsel for the TAC that, as a matter of probability, the most reliable histories are those taken by Mr Gary Speck, orthopaedic surgeon, contained in his report dated 5 September 2018,[90] and that of neurologist, Associate Professor Stark, dated 2 August 2018.[91]
[90]Exhibit TAC-5, TAC Court Book at page 71
[91]Exhibit TAC-4, TAC Court Book at page 66
92 Mr Speck examined the plaintiff on 5 September 2018. He took a history from the plaintiff with respect to the motor vehicle accident on 12 September 2011 to the following effect:
“He did not seek any treatment immediately and drove the vehicle back to the workshop. He recalls having back pain at the time although there was no damage to the seats inside the vehicle, he thought the body pan was shifted by the impact. He developed low back pain and left leg pain and the next day realised that his neck was very sore, and he couldn’t move it. Subsequently he has had ongoing bilateral neck pain extending from around the shoulder blades up to the base of his skull and low back pain which extends to either side and in the past had extended to the front of his thighs but since the insertion of a spinal cord stimulator in December 2017 the leg pains had become much less frequent.
He currently gets episodes of pain going into the legs lasting up to an hour or two about 6 times a week and describes his neck as being his worst problem. He has difficulty sleeping and standing in the kitchen; for example, preparing meals caused him more trouble and laying down gives him good relief for his neck as it does for his back. He had seen Mr. Paul D’Urso, neurosurgeon in relation to his lumbar back trouble and was offered a fusion which he declined and Mr. Girish Nair, who saw him for his neck pain did not offer him any surgical treatment.
Currently Mr Smith has been able to diminish his analgesic use to Lyrica 150 mg twice a day, Tramadol SR 50 mg taking 1 in the morning and 1 at night and Celebrex 200 mg daily. He has no other specific therapy as he is not funded by TAC or WorkCover for treatments at this time and paid for his spinal cord stimulator himself from the proceeds of his house sale and using his private health insurance. He has seen a number of specialists over time and had procedures including facet joint denervations in August and September of 2015 but without any lasting benefit from the latter and sacroiliac joint injections which gave him no benefit. He has had a number of other injections into his back again without any lasting benefit.
He sees his local doctor for prescriptions as required but otherwise has no other active treatment plans ongoing nor any surgical treatment planned.”[92]
[92]Exhibit TAC-5, TAC Court Book at pages 73 and 74
93 As to the mechanisms of the WorkCover injuries, Mr Speck relates:
“Mr. Smith described the work injury in jid-2014 (July) when he was working with a car on a hoist, his boss had called to him to speak with him and as he walked he hit his head on the wheel of the vehicle on the hoist, extended his neck and had an exacerbation of his neck symptoms.
He was not having treatment for his neck at the time, he dropped to the ground as he felt that he was going to blackout although he did not lose consciousness and he described that incident as “pretty well finished me off”.
He had subsequently been stacking wheels and tyres on high shelves and those items he thought weighted approximately 15 – 20 kilograms. He said he was supposed to be on restricted duties at the time (August 2014) and developed increasing back pain. He had continued at work with very few days off and thought he had only taken 7 – 10 days off over the entire time he had worked at Euro City Motors as his boss was not sympathetic and even if he was having treatment he would time that for out of work hours.
He said initially the treatment stemming from the motor vehicle accident in September 2011 was paid for by Work Cover but this ceased after about 6 - 9 months and he said his ‘neck was still not really good’. The back treatment he paid for privately with physiotherapy and x-rays”. [93]
[93]Exhibit TAC-5, TAC Court Book at page 75
94 As to the pain he was suffering, Mr Speck related:
“… Pain occasionally interrupted his sleep and restricted his social and recreational life and he could travel anywhere but with pain.”[94]
[94]Exhibit TAC-5, TAC Court Book at page 75
95 Mr Speck viewed x-rays of the cervical spine taken 8 November 2011 which, in his opinion, did not show any abnormality.
96 As to the history of back pain, Mr Speck referred to the various investigations and diagnoses in the 1990s from Dr David Vivian, and Mr Daryl Nye, neurosurgeon, as referred to above. He also noted that the plaintiff had commenced his apprenticeship with Euro Motors as a disabled apprentice because of his back condition, in January 1996. Mr Speck also noted that the plaintiff had attended Lara Physiotherapy with complaints of neck pain in July 2011, some two months prior to the motor vehicle accident.
97 In considering specific questions, Mr Speck opined as follows:
“1. …
Mr Smith had fluctuating symptoms of neck and back dysfunction prior to the transport accident.
2. …
Mr Smith had an exacerbation of neck and back symptoms following the transport accident on 12/9/2011. This has resolved.
3. …
On 22/7/2014 Mr Smith sustained a soft-tissue injury of his neck with ongoing symptoms.
4. …
On or around 4/8/2014 Mr Smith sustained an aggravation of his pre-existing degenerative condition of the lumbar spine with past history of a disc prolapse at L4/5 and spondylolysis at L5.”
98 In particular, Mr Speck was asked whether his then current conditions were attributable to:
(i)a pre-existing injury (by reference to the transport accident).
Answer: “No”;
(ii)the transport accident on 12 September 2011.
Answer: “No”;
(iii)the workplace incident on 22 July 2014.
Answer: “Yes in relation to his neck condition”;
(iv)the workplace incident on or around 4 August 2014.
Answer: “Yes in relation to his back condition.”
99 Further, both the neck and back conditions are aggravations of the previous conditions.
100 Similarly, Associate Professor Richard Stark, in his report dated 2 August 2018,[95] took a similar history to that of Mr Speck. With respect to the two workplace incidents, he took a history as follows:
“On 22nd July, 2014, there was a significant aggravation. He was at work and had a car up on the hoist. His boss suddenly called to him and he turned quickly, hitting his head on a wheel. He dropped to his knees and he feels that this incident stirred up both his neck and lower back problems. These deteriorated and continued on at a worsened level as he said all of his work activities were tending to aggravate the symptoms.
Then there was a further incident on 4th August, 2014. On this occasion, eh was doing a clean up at work and this involved lifting a lot of wheels and tyres onto a rack. This again, aggravated his neck and back symptoms and they never improved thereafter.”[96]
[95]Exhibit TAC-4, TAC Court Book at page 66
[96]Exhibit TAC-4, TAC Court Book at page 67
101 Further, Associate Professor Stark recorded:
“He told me that at work, prior to be being sacked, he was requiring help from his boss or the apprentice to do many of the tasks at work that a mechanic would usually do unaided.”[97]
[97]Exhibit TAC-4, TAC Court Book at page 68
102 With respect to current medication, it was recorded as Celebrex, 200 milligrams a day, Lyrica, 450 milligrams a day, and Tramadol, which has been reduced to 100 milligrams per day.[98]
[98]Exhibit TAC-4, TAC Court Book at page 68
103 As to investigations, Associate Professor Stark commented on an MRI scan of the lumbar spine dated 25 November 2014, showing a small L5-S1 central disc prolapse, but only relatively minor degenerative changes. He considered an MRI scan of the cervical spine from 5 September 2016 was essentially normal except for a mild spondylotic bar at C3-4.[99]
[99]Exhibit TAC-4, TAC Court Book at page 68
104 As to the significance of the three relevant injuries, Associate Professor Stark recites:
“… there were no problems with these areas in the period leading up to his car accident in 2011. I do not think that there is anything in the documentation that I have seen that would contradict this history.
He reports that there was a significant injury to his neck and back from the motor vehicle accident and he certainly mentioned these problems to his GP in due course (November, 2011) and had attended physiotherapy because of the symptoms.
It appears to me that there was a significant increase in the level of his symptoms following the two workplace incidents in July and August 2014 and he certainly indicates that there was a substantial deterioration in his condition at that time.”[100]
[100]Exhibit TAC-4, TAC Court Book at page 69
105 As to his overall opinion, Associate Professor Stark stated:
(a)the previous neck and back symptoms had completely or virtually completely resolved prior to the 12 September 2011 injury;
(b)the plaintiff suffered a jolting injury to his neck and back in September 2011, which was non-specific in type and relatively mild in degree. He was able to continue at work with the assistance of physiotherapy treatment from time to time;
(c)there was a significant aggravation of his symptoms involving both the neck and back following the workplace incident of 22 July 2014;
(d)there was a further deterioration following the workplace incident on 4 August 2014. Both this and the July 2014 accident would produce soft-tissue injuries to the neck and back, with aggravation of the previous situation.[101]
[101]Exhibit TAC-4, TAC Court Book at page 69
106 Associate Professor Stark accepted that the plaintiff’s current condition impacted on his ability to engage in work and he believed there were contributions from all the incidents outlined above. He thought the pre-existing injuries contributed only slightly and in particular, the transport accident of 12 September 2011 contributed to some extent, but was a relatively minor factor. He believed that the two workplace incidents on 22 July 2014 and 4 August 2014 had been a major factor of his ongoing symptoms based on the history he has provided. Associate Professor Stark was not able to distinguish between these two as they occurred so close together.
Findings
107 I consider that the motor vehicle accident on 12 September 2011, although producing ongoing consequences in itself, does not represent a serious injury for the reasons recited above.
108 I consider that the workplace injury on 22 July 2014 produced an aggravation of the plaintiff’s neck condition and, to a lesser extent, his back condition. It would appear that he continued to work thereafter until he engaged in the third workplace injury on or about 4 August 2014. It would appear that in between these two incidents, the plaintiff had attended his general practitioner complaining of neck pain only and it was reported as being a lot better by Dr Kozlov by October 2014.
109 It would appear that the plaintiff’s neck condition occasioned by the July 2014 injury has not resulted in radiological findings similar to those of the lumbar spine and has not resulted in the plethora of treatment, both invasive and medicinal, that has been occasioned by the back condition.
110 The fact that the plaintiff remained at work after the July 2014 injury and was able to engage in what appears to be heavy work in the “clean-up” in August 2014, gravitates against the July 2014 injury being in itself a serious injury.
111 That being said, the deterioration in the plaintiff’s back condition, as evidenced by the treatment occasioned thereby, is in stark contrast to the treatment, or the lack of treatment, that existed prior to August 2014. I consider that treatment, including the strong medication, has been occasioned by the aggravation of the condition by the August 2014 injury, which ultimately was instrumental in his cessation of work in 2016. I do not consider that by August 2016 he was performing a “real job”, in that the light work duties that had been certified by his general practitioner were, themselves, being aided by assistance from both the employer and the apprentice.
112 I also find that this condition and the need for medication continues up until the time of hearing. Accordingly, I am urged to find by the plaintiff’s leading counsel that there is no employment for which the plaintiff is suited when regard is had to the definition of “suitable employment” as a result of the impairment to the spine.
113 I find that he has essentially worked only as a motor mechanic all his life and that he has demonstrated a considerable amount of stoicism to continue in the workforce until 2016, albeit with the restrictions and disabilities referred to above.
114 Further, I find the plaintiff suffers from varying pain in his spine which is at times severe and involves the necessity for daily strong medication referred to above.
115 It is clear enough to me that overall, the evidence adduced in this matter leads to the conclusion that the plaintiff’s physical capacity for work is severely restricted on account of his lumbar spine and due to the aggravation he suffered in the course of his employment in August 2014.
116 It is clear enough that the evidence adduced in cross-examination relates to the plaintiff’s physical capacity to undertake the duties put to him; however, as Ashley and Kaye JJA stated in Richter v Driscoll:[102]
“[R]eturn to work in employment ... requires more than that a physical capacity to engage in a task or tasks.”
[102][2016] VSCA 142 at paragraph [76]
117 The employment must be, as specified in the definition of “no current work capacity”, “suitable employment”. For their Honours, the definition of “suitable employment”:
“... plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise.”
118 Their Honours warned:
“… paragraphs (a)(ii), (iii) and (iv) would have no work to do.”[103]
[103]Richter v Driscoll (ibid) at paragraph [76]
119 Accordingly, the question whether a worker is able to return to work in suitable employment, according to their Honours:
“... specifically requires consideration of matters travelling beyond physical capacity to perform a task.”[104]
[104]Richter v Driscoll (ibid) at paragraph [77]
120 Accordingly, the construction which Ashley and Kaye JJA placed on the definitions of “no current work capacity” and “suitable employment” can be expressed as follows:
“... whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances – these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.”[105]
(Emphasis added).
[105]Richter v Driscoll (ibid) at paragraph [95]
121 They further stated:
“The other, closely allied, way in which the matter may be put is shown in the passage of the judgment of Fletcher Moulton LJ in [Cardiff Corporation v Hall [1911] 1 KB 1009], where his Lordship referred to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’.”[106]
[106]Richter v Driscoll (ibid) at paragraph [96]
122 Osborn JA agreed with Ashley and Kaye JJA in this regard. His Honour stated:
“The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated. ...
A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.
This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.”[107]
(Emphasis added).
[107]Richter v Driscoll (ibid) at paragraph [143]-[145]
123 Accordingly, I find that the plaintiff is unable to return to work in suitable employment as a settled member of the workforce. Leave will be granted therefore for the plaintiff to issue proceedings for loss of earning capacity with respect of an injury to his lumbar spine suffered in the course of his employment on or about 4 August 2014.
124 Further, according to the principles laid down in Advanced Wire Advanced Wire & Cable Pty Ltd & Anor v Abdulle,[108] the plaintiff will also be granted leave to issue proceedings for pain and suffering damages.
[108][2009] VSCA 170
125 I will hear the parties as to any consequential orders.
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