Snibson v VWA
[2010] VCC 1633
•22 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-01910
| KENT DAVID SNIBSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | First Defendant |
| and | |
| ACN 005 565 926 PTY LTD | |
| (formerly OPTOMETRIC PRACTITIONERS (VIC) PTY LTD) | Second Defendant |
| and | |
| LUXOTTICA RETAIL AUSTRALIA PTY LTD | Third Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17, 18 and19 February 2010 |
| DATE OF JUDGMENT: | 22 October 2010 |
| CASE MAY BE CITED AS: | Snibson v VWA & Ors |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1633 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Section 135A and Section 134AB – pecuniary loss and pain and suffering – optometrist – neck injury.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC | Clark Toop & Taylor |
| with Mr M J Ruddle | ||
| For the First and Third | Mr P Elliott QC | Hall & Wilcox |
| Defendants | with Ms R Boyce | |
| For the Second Defendant | Mr I Gourlay | Lander & Rogers |
| HER HONOUR: |
Introduction
1 The plaintiff seeks leave to bring common law proceedings for injury suffered by him in the course of his employment as an optometrist with the second and third defendants from 1 December 1992 to early 2006.[1]
[1] The plaintiff’s employment with the second defendant was from 1989 to the time of deregistration on about 26 November 1998. The employment window period for the plaintiff against the second defendant is from 1 December 1992 to 11 November 1997 inclusive, and the plaintiff must, in substance, establish a relevant causal connection between that period of employment and serious injury. This confined period is the result of the legislative provisions precluding a claim for employment involvement prior to 1 December 1992 and subsequent to 11 November 1997, up to and including 19 October 1999. The third defendant accepted responsibility for employment from October 1999 – Transcript page 30.
2 Because of a change in the legislation, the application is made under two separate provisions of the Accident Compensation Act 1985 (as amended) (“the Act”). A worker’s entitlement to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment before 12 November 1997 is governed by s.135A of the Act.
3 Section 134AB relates to an entitlement to compensation in respect of an injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999.
4 The period from 12 November 1997 to 19 October 1999 is known as the “black hole” period as there were no rights arising in relation to any employment during that period.
5 Pursuant to s.135A(4) of the Act, the plaintiff seeks leave to bring common law proceedings against the second defendant in respect to injury to his neck and cervical spine suffered during the period from 1 December 1992 to 12 November 1997.
6 In addition, the plaintiff seeks leave to bring proceedings at common law for damages in relation to an injury to his neck suffered by him arising out of or in relation to his employment after 19 October 1999. The plaintiff seeks such leave to bring proceedings for “pain and suffering” and “pecuniary loss damages” within the meaning of “serious injury” in s.134AB(37) of the Act.
7 The plaintiff brings the application pursuant to clause (a), being an impairment or loss of body function of the neck and back; and alternatively, clause (c), a mental or behavioural disturbance or disorder within the definition of “serious injury” contained in s.135A(19) and s.134AB(37) of the Act.
8 The body function relied upon in this application is the back and cervical spine, and psychiatric impairment.
The First Period
The Issues
9 Counsel for the second defendant submitted that his primary submission was that the s.135A application was not made within the relevant time period. The s.135A application was issued on 19 December 2008, and served on 22 December 2008. The relevant date three years prior to 22 December 2008 for the purposes of s.135AC(b) is therefore 22 December 2005. The second defendant argued that the plaintiff had knowledge of the extent of his injury prior to 22 December 2005.
10 Secondly, it was submitted that there is no causal link between the plaintiff’s work and the alleged injury and that the plaintiff has failed to prove that he suffered a compensable injury arising out of or in the course of his employment with the second defendant and that his employment was a significant contributing factor to that injury as required by s.82 and s.135A(1) of the Act.
11 Thirdly, it was submitted that the plaintiff has not suffered a serious injury within the meaning of s.135A(19) of the Act.
The Second Period
The Issues
12 The first and third defendants submit that the plaintiff must fail as the evidence does not support that he has suffered:
• a compensable injury to his neck in his employment with the third defendant from 20 October 1999; • a permanent impairment to his neck from any aggravation suffered in the course of his employment with the third defendant; • serious consequences from any impairment suffered to his neck by reason of any aggravation to his neck in his employment with the third defendant; • a permanent mental disorder. 13 The plaintiff relied upon two affidavits, sworn 19 December 2008 and 13 February 2010. The plaintiff was cross-examined. In addition, all parties relied on medical reports and other material which was tendered in evidence. The parties filed written submissions. I have read all the tendered material.
The Evidence
The Plaintiff’s Evidence
14 In his first affidavit, the plaintiff deposes that:
•
He was born on 3 July 1962 and was aged forty-five. He attended Carey Grammar and completed HSC. After leaving school, he attended Melbourne University and completed a Bachelor of Science in Optometry. After leaving university, he worked as an optometrist in Tasmania for two years.
•
Between 1989 and 2006, he worked as an optometrist in Melbourne. He commenced working for Optometric Practitioners (Vic) Pty Ltd in 1989. This company was bought by OPSM Pty Ltd in 1998, which was subsequently bought by Luxottica Retail Australia Pty Ltd in approximately 2003.
•
Between 1989 and 2001, he worked approximately 43 to 45 hours per week, mostly in the Bourke Street office.
•
Between 2001 and 2004, he worked mostly in the Ivanhoe and Northcote offices.
•
Between 2003 and 2005, he reduced his hours of work, due to the pain, from 40 hours to 32 hours per week. He was attending university in the hope of completing a psychology degree, because he was having difficulties performing his work. He was unable to complete the psychology degree due to pain.
•
He continued to work with Luxottica Retail Australia Pty Ltd on a casual basis whilst also working as an optometrist with Strachan Pty Ltd between June 2004 and February 2006, and with Vision Crest as a casual for a few hours, one day per week.
• Working as an optometrist his duties involved: “… using a slit lamp with frequent posturing requiring leaning forward with neck extension and also my arms abducted and held above shoulder height. This also involved an element of lateral translation of the neck with some rotation when using the slit lamp. When using a direct ophthalmoscope it would require frequent neck twisting and lateral flexion, often from a sideways bent over position and [the plaintiff] would perform this over many minutes. During refraction procedures [the plaintiff] would also be leaning over to the side with [his] neck in a lateral flexion and rotation up to 20 minutes at any examination.”
•
In the mid 1990s, he experienced pain in his neck and right shoulder. In the late 1990s, he states that the neck pain became progressively worse.
•
By continuing to work as an optometrist, his neck became worse and his restriction of movement increased. By December 2005, he had to reduce his hours significantly. In approximately late January/late February 2006, he stopped working as an optometrist as a result of the injury. He appreciated the full significance and knowledge of his injury after looking at the MRI scan taken around February 2006.
•
In November 2008, he commenced working as an education co-ordinator at the Optometrists Association of Australia (Victorian Division), working 5 hours per day, two days per week. Duties involved attending meetings, answering the telephone and working on the computer. He took medication and regular breaks. If the pain became worse at work he would lie down on a bed which was provided.
•
He suffers from referred pain in both shoulders which extends into his arms. He has restriction of movement in all directions and suffers from insomnia, tinnitus, headaches and has become frustrated, anxious and depressed.
•
Prior to the injury, he played social squash and tennis, and ran regularly, none of which he is now able to do. He used to like bushwalking, but now finds this difficult. He has difficulty sitting or standing for lengthy periods; moving his neck repetitively; dancing; attending movies; going away on weekends; mowing the lawn; raking and digging. He drives a motorcar, but has difficulties. His inability to undertake activities makes him feel tired and frustrated. He feels that his memory and concentration are affected by the pain.
15 In his second affidavit, the plaintiff deposes that:
•
In February 2009, he had completed his three-month trial at the Optometrists Association of Australia (Victorian Division) working as an education co-ordinator, and then stopped working for a while. He had great difficulties completing 10 hours of work per week and wanted to reduce the hours, because of limitations caused by his pain, such as severe headaches and restriction of movement in his neck. However, his employer wanted him to work 19 hours per week. He could not manage that many hours.
•
He has been admitted to the DHS Health Practitioners Review Panel, but had only been offered one hearing with the Panel. The hearing lasted approximately two-and-a-half to three hours. During that time, he had difficulty sitting and had to get up. He estimates that he could manage a two-hour hearing, three days per week.
•
His comments in his first affidavit regarding social, sport and home maintenance remain basically the same. He still drives a car, but has difficulties as a result of his neck pain and restriction. Occasionally he kicks a ball with his son, which is not difficult in itself, but he finds associated movements, such as bending over, difficult.
•
He continues to have severe pain in his neck which becomes worse if he turns, twists or looks up or down. He still has restriction of movement in his neck and arms and has pain going down both arms. He sometimes suffers from dizziness and nausea.
•
Since 2004, he has continued to attend some quarterly meetings of the Board of Professional Development of the Australian College of Optometrists. On some occasions he has chaired professional development seminars and lectures, which involved introducing and thanking the speaker.
•
He sees Dr Tang regularly and takes the following medication: Dothep; Valium; Tramadol; as required codeine; paracetamol; Lyrica and Stilnox. He attends a chiropractor once a fortnight and a psychologist every two to three weeks.
The Plaintiff’s Evidence in Cross-Examination
16 The plaintiff was extensively cross-examined and gave the following pertinent evidence:
•
He agreed that he first began to get neck pain in about 1990 or in the early 1990s. Prior to March 1997, he believed he had been prescribed anti-inflammatories for the neck pain which may have reduced it a little, but it did not eliminate the pain. He was unable to say whether recreational activities or work contributed to the pain, all he could say was he was periodically having pain. He agreed that between 1989 and 1998, there was no specific event which caused injury to his neck. He agreed that gradually there was an increasing set of symptoms which involved his neck and, to some extent, his shoulders. He agreed the pain resulted from activity or holding his head in one position. He agreed he had seen a manipulative physiotherapist, Mr Andrew Mitchell, on 17 March 1997. He was told that in a six-month period he had seen Mr Mitchell on forty five occasions, and up to the year 2000, he had seen Mr Mitchell on two hundred and ninety occasions. He said he would challenge the figures. He thought forty seemed a lot and two hundred extreme. He agreed that up to the year 2000, there was a small improvement in his neck.
•
He agreed that on 1 December 1997 he saw Mr Doig, primarily for his neck. Mr Doig administered an injection of local anaesthetic and steroid into the right shoulder, and he agreed he had temporary relief. He told Mr Doig about a worker’s compensation injury.
•
He agreed that he had an MRI scan of his cervical spine in November 1999 at the request of Mr D Lewis, rheumatologist. He agreed that after discussing the MRI scan with Dr Lewis, he had pathology which indicated some vulnerability.
•
He agreed that he saw Mr Doig in February 2000. He agreed that there was a correlation between the MRI findings and the symptoms he was having.
•
He agreed that between November 1999 and when he saw Mr Dohrmann in 2001, he was having increasing neck pain which had increased in severity since the mid 1990s. He said, because of the pain in the shoulders, he needed to bend more at work. In the year 2000, the neck pain was severe sometimes, which was limiting the range of movement of his head, particularly rotation and bending forward. He agreed he saw Mr Dohrmann on 9 May 2001 on referral from Mr Doig and that was the first time surgery was mentioned as an option, but Mr Dohrmann expected that he would not need surgery. He said it was an alarming prospect and he discussed it with his wife. He agreed that he understood that surgery was risky and that the surgery being offered was riskier than most but it was something he chose not to do at that time. He said it was not actively on the table.
•
He said he has a greater appreciation of the pathology now than he did in 2001.
•
He said that he experienced pain at work in certain postures, and after periods of intense work he was more uncomfortable. He thought he probably discussed it with Mr Doig. He agreed he had taken time off work up until May 2001 but did not believe he had used up all his sick days. He agreed he did not see Mr Dohrmann again until 20 February 2006 and he told him his hours of work had been gradually declining over the intervening five years because of the neck problem. He said, between 2001 to 2006, the pain was in the neck and upper back.
•
He was asked to compare the pain he suffered in 2000 with the pain he suffered in the next five-year period, up until 2006. He said the pain was more persistent and increased in frequency, up until 2006.
•
He agreed that he last worked full-time as an optometrist in 2003. He agreed that he reduced his base rostered hours in 2003 and allowed for some fluctuations in casual hours, but he suffered no reduction in income because he used up his “leave”. He agreed the changes in his work regime were caused by the neck pain and because he changed location and practice. He noticed that when he reduced the intensity of work, the pain also reduced. He said this brought into question how long he could continue to work full-time. He was not looking forward, but dealing with the day-by-day issues. He said he was also relying on the information Mr Dohrmann had given him in 2001. He agreed that in 2003, he had concerns about where his working life was going. He also looked at psychology as an option. It was a fallback position. He said if he wanted to change careers he would have continued with psychology more assiduously. One of the reasons for studying psychology in 2003 was that if he did not complete the fourth year honours’ course at that time, there would have been too long a break between his under-graduate studies.
•
He was asked about the knowledge he had in 1999 in relation to the prolapse. He said it was an event that had happened and Mr Dohrman urged him to be sensible and not overdramatise the event.
•
He agreed the recent MRI scans showed some improvement and that reflected in improvement in the degree and intensity of the pain in his arms.
•
He said there are times when his neck pain has improved and there are times when the pain is the same.
•
He agreed he described the pain he gets to Mr Brownbill at his most recent appointment.
•
He was cross-examined about facsimiles he sent to Ms Perrett- Abrahams and Ms Farquharson.
•
He agreed that he had concerns about his future but he relied on the advice it was unlikely it would come back quickly but he had experience to know that it was continuing to trend in a negative direction.
•
He said he worked two days per week at Strachan in Blackburn, near home, one day at Lara, and OPSM variable – some weeks only one to two days.
•
He said the bulk of the consultations would be using instruments. He often became fatigued. He was often working under pressure so could not take the breaks required.
•
A video was shown which depicted an optometrist using a retractor head and a slit lamp. The plaintiff said the video shown represented some of the work of an optometrist, being an abridged and simplified view of some of the normal procedures he would usually undertake. He said the video did not represent the work or the ways he would use his arms and neck in the course of work, it did not cover all that he was required to perform in those procedures and that many activities he was required to perform were not shown in the video. He said the procedures he conducted were longer in time than shown on the video, i.e., sustained leaning with the neck in distorted positions, bending with the neck extended or leaning and twisting with the arms out in a sustained position.
•
Further, the video did not show the work using an ophthalmoscope which required bending, leaning with the neck in a curve for up to several minutes.[2]
•
The “patient” was a member of staff who knew what she was doing. The plaintiff said many of his patients were elderly who did not understand how to comply with requirements, which meant he adopted more distorted positions.
•
The binocular indirect ophthalmoscope procedure required the plaintiff to adopt extreme angles to achieve high accuracy.[3]
•
The slit lamp procedure did not cover all the tests with the procedure. Those tests included the fundus test which required him to face to steer the optical apparatus which involved manoeuvres which were uncomfortably controlled and sustained for some minutes.[4] Other tests included the use of a gonioscopy, contact lens work or the removal of a foreign body.
•
Further, the plaintiff said the ergonomic setup shown on the video was different to what was provided by his employers. He also said the work he performed with the second and third defendants differed from the work with either employers, Strachan and Vision Crest. He said at Strachan he was able to have more breaks and the ergonomic setup was better, which meant he could work longer and more comfortably.[5] At Vision Crest, there was modern equipment, which reduced some of the ergonomic demands.[6]
•
He said that the use of his neck and shoulders in everyday life differed from when he was engaged in abnormal sustained activities when working with the second and third defendants.[7]
•
He was asked about the worker’s compensation claims he had made in respect to his neck injury, the first one in 1997 and the second claim in 2006. He agreed that the second claim in 2006 related back to the injury in 1997.
•
He agreed that his attendance at university in 2003 was a change in his work status which was a total life decision.
•
He agreed that between 2004 and 2005 he had increased symptoms affecting the interscapular area down between the shoulder, and that paresthesia on the right side was becoming a feature. However, he believed he was coping and managing with it.
•
He agreed that from 2001 to 2005, he was seeing either a doctor or chiropractor once per month or every couple of months.
•
He agreed that between 2001 and 2005, he reduced his hours and changed the basis of practising as an optometrist. He agreed that he was making provision for the possibility of a change of career by enrolling at RMIT for a psychology course.
•
He agreed that his general practitioner had written to Mr de la Harpe on 30 January 2006, referring to his cervical disc problem and stating he had experienced an exacerbation in the last few months. He agreed that things escalated during late 2005 and they continued to escalate. He agreed when he had a flare-up in June 2005 he had been annoyed. He had been looking at several aspects, at causative factors, at management factors, and he had been trying to make his lifestyle more conducive to manage it and he was wondering what else he could do. He said he had an appreciation based on the advice already given of what was going on with his neck. He agreed that he frequently made comments about problems with work equipment.
[2] Transcript 259
[3] Transcript 261-262
[4] Transcript 264-265
[5] Transcript 249
[6] Transcript 249
[7] Transcript 250
17 In re-examination, the plaintiff:
•
agreed that until the escalation of pain in late 2005, he had the capacity to work full-time as a clinical optometrist if he chose to;
• agreed he was working for three employers in 2005. The Plaintiff’s Medical Evidence
Investigation
18 On 30 November 1999, an MRI scan was performed on the plaintiff’s cervical spine. The conclusion was:
(i) a moderate central disc protrusion and right posterolateral disc bulge at C5-6 mildly indenting the cord and compressing the right C6 nerve root; and (ii) a small central disc bulge at C3-4 mildly indenting the cord. 19 On 7 February 2006, an MRI scan was performed on the plaintiff’s cervical spine, and the conclusion was:
“Multilevel disc degeneration with small central disc protrusion at C4/5 without neural compromise. At C5/6 there is a broadbased central/right paracentral disc protrusion with minor mass effect on the right C6 nerve and mild cord indentation. At C6/7 there is a large right paracentral/ foraminal disc protrusion, obliterating the exiting right C7 nerve resulting in mild cord compression and rotation. The appearances at C4/5 and C5/6 are unchanged in comparison to previous MRI (30/11/99). The C6/7 level was within normal limits on previous examination.”
20 On 13 February 2007, an MRI scan of the plaintiff’s cervical spine was performed, and the conclusion was:
“Focal right posterolateral disc protrusion at C6/7 with compromise of the medial aspect of the right C7 nerve and asymmetric disc bulge at C5/6 slightly worse to the right of midline with mild effacement of the right lateral recess and possibly displacement of the right C6 nerve.
There is also mild indentation of the cord at both C3/4 and C4/5. No cord signal change is identified, no other findings.
Comment: Compared with the previous examination dated 07/02/06, the large disc herniation previously noted to the right of the midline at C6/7 has moderately improved on the current series. In addition, the disc bulge at C5/6 has mildly improved. No other findings.”
21 On 2 February 2010, an MRI scan of the cervical spine was performed on the plaintiff. The conclusion was:
“Mild C5-6 and C6-7 cervical canal stenosis secondary to a central and right sided disc prolapse at both levels with impingement of the right C6 and right C7 nerve roots respectively.
Minor C3-4 and C4-5 cervical canal stenosis secondary to a central disc prolapse and vertebral end plate osteophytic lipping at both levels with impingement of the thecal sac but no cord nor nerve root impingement at either level.
These appearances have not altered significantly since the previous study dated 12/02/2007.”
Medical Reports
22 In a letter from Mr Stephen Doig to Mr P Dohrmann dated 19 February 2001, Mr Doig describes the plaintiff as having significant problems with his right shoulder, which he thought was referred from the plaintiff’s neck, and has continued to have ongoing neck problems and neck pain. He describes the plaintiff’s condition at that time, being neck pain and brachialgia, which was not marked, and odd feelings in the right upper limb. Sleeping was a problem. Clinically he had a decreased range of movement of the cervical spine, particularly to left rotation, but normal power and sensation in the upper limb. He had a subjective change in feeling in the upper limb.
23 In a report of May 2006, Mr Doig, orthopaedic surgeon, said he saw the plaintiff on 1 December 1997 when he was complaining of shoulder and neck pain, which had existed for about eighteen months and which he said had been accepted as a worker’s compensation injury. The plaintiff had reduced his activities because of the neck and shoulder pain. He was working full- time, and receiving physiotherapy treatment. Mr Doig saw the plaintiff again on 29 December 1997, in January and mid-1998, February 2000, early 2001, October 2003 (unrelated to the neck and back), and February 2006. It was Mr Doig’s view that the plaintiff’s right shoulder and cervical spine had caused him significant problems. Mr Doig had injected the plaintiff’s shoulder several times, which seemed to settle it down.
24 Mr Doig said that the plaintiff’s employment was a significant contributing factor to the injury. He noted that the plaintiff had continued to work, although when he last saw him in February 2006, the plaintiff indicated he had reduced his workload because he found that this made life easier. Mr Doig thought the plaintiff was capable of suitable employment. He could not say how long any incapacity would last, and noted that he first saw the plaintiff in 1997 and that he was still having ongoing trouble. He considered the plaintiff was not totally incapacitated for work, but had a partial incapacity. He considered the diagnosis was of a disc prolapse at C5-6 and C6-7, as well as subacromial bursitis in the right shoulder.
25 Mr Doig considered that the plaintiff’s neck problems were part of the original injury to his shoulders. He noted that he has seen the plaintiff over a period of eight years and his notes record complaint of neck pain in December 1997. He did not consider there was a significant underlying condition that was causing these difficulties.
26 In May 2006, Mr David de la Harpe, orthopaedic surgeon, said he had seen the plaintiff at the request of his general practitioner in February 2006. At that stage the plaintiff had four weeks of quite severe right arm pain in a C7 distribution. Mr de la Harpe diagnosed the plaintiff’s presenting injury as an acute C6-7 disc prolapse, which he thought was related to his employment as an optometrist. He said positions of the plaintiff’s head and neck in the course of his duties may have contributed to or aggravated his C6-7 disc prolapse. Mr de la Harpe said it was reasonable that the plaintiff’s work, similar to that of dentists with awkward positions of their neck to examine their patients, may have contributed to his presenting complaint. He could not comment on the injury of November 1997 in relation to the C5-6 disc injury.
27 The Blackburn Clinic, the general practice the plaintiff attended, provided reports on 30 January 2006, 19 May 2006, 1 December 2008 and 15 February 2010. In January 2006, Dr Lovass referred the plaintiff to Mr de la Harpe, orthopaedic surgeon, and said that the plaintiff had had an issue with his cervical disc for several years, although it had only recently been exacerbated in the last few months, and particularly so in the last week or two. The plaintiff was experiencing increasing constant right arm to hand paraesthesia and pain that interfered with his occupation as an optometrist.
28 In May 2006, Dr Adrian Tang of the Blackburn Clinic reported that the plaintiff had suffered an injury to his back in 1997 which initiated a WorkCover claim and had involved pain in both his shoulder, and also his neck. Dr Tang said the plaintiff had ongoing fluctuations of both right shoulder, neck and right-arm pain, and presented in January 2006 with further right-arm pain and weakness of certain functions of his hand. He said that the plaintiff has been unable to work due to the severity of his neck and right-arm pain, which has practically debilitated him since 2005.[8]
[8] I note that Dr Lovass, another general practitioner at the Blackburn Clinic, reported to Mr de la Harpe on 30 January 2006 that the plaintiff had “an exacerbation in the last few months, and particularly so in the last week or two”.
29 Further, the MRI scan of 7 February 2006 revealed a moderately large C6-7 disc prolapse, and also associated right C7 nerve compression. C5-6 had also a paracentral disc protrusion with also minor mass effect on the right C6 nerve. The investigations were in keeping with the plaintiff’s symptomatology. The plaintiff’s pain had fluctuated somewhat, but he was now experiencing similar symptoms in his left arm and hand.
30 It was Dr Tang’s view that the current symptoms were attributable to the injury the plaintiff had in 1997 when he indicated a WorkCover claim, and that the symptoms related to the cervical nerve root compression and referral of pain in the shoulder and arm. Dr Tang said the symptoms had re-flared since December 2005. It was his view that the plaintiff’s occupation as an optometrist for the past twenty years had contributed significantly to the development and chronicity of his symptoms over the years. Dr Tang considered the plaintiff was unfit to return to his pre-injury duties due to pain and weakness in his hands.
31 In December 2008, Dr Tang reported that the plaintiff continued to get continuing pain affecting his neck, both shoulders and also his arms and hands. He had associated paraesthesia involving his right arm and hand, and also mild weakness of fine motor movements of his fingers. He had been referred to a psychiatrist, Dr Paul Wendiggensen, who was treating him for depression. The plaintiff was prescribed medication of Lexapro, Mobic as required, Panadeine Forte as required, Stilnox as a hypnotic, and Tramal twice a day as required.
32 Dr Tang referred to the MRI of February 2007, but said, compared with the previous investigation in February 2006, the disc herniation at C6-7 had moderately improved. In addition, the C5-6 disc bulge had mildly improved. It was his view that the plaintiff’s symptoms fluctuated, depending on his current lifestyle duties. Objectively, based on the MRI, his disc bulges were improving. However, Dr Tang considered that much of the pain syndrome was of a degenerative nature and may well have been exacerbated by the plaintiff’s previous work duties. Dr Tang expected that the pain would continue.
33 In February 2010, Dr Tang said the plaintiff’s progress had fluctuated. He said the plaintiff’s symptoms included mild to moderate neck pain with certain movements of his neck, but also referred pain to his shoulders and both upper arms. He said the plaintiff experienced paraesthesia, particularly affecting his right hand and forearm. Associated with this is mild weakness of his fingers on the testing of both hands. He said the plaintiff continues to feel dysthymic, anxious, and despondent about his future work prospects, self-worth, and ability to be a meaningful husband and father. He was currently on a Tricyclic, an anti-depressant, and Dothep, at night. Currently he was seeing chiropractors and psychologists and he had seen a psychiatrist and a number of neurosurgeons. His medication consisted of analgesics including Tramal, Valium at night, and the occasional Panadeine Forte and Lyrica capsules. Dr Tang said that the plaintiff’s symptoms had not dramatically improved over the past twelve months, and would continue to run a fluctuating course in the midst of the associated anxiety and depressive symptoms.
34 Mr Peter Dohrmann, treating neurosurgeon, reported that he had seen the plaintiff in May 2001, February, March and May 2006, and March 2007. In a letter dated 6 May 2006 to the Accident Compensation Conciliation Service, he said that Mr Doig had referred the plaintiff to him in May 2001. At that time, the plaintiff complained of neck pain gradually worsening over several years. Mr Dohrmann reported “his posture in his work as an optometrist had been an aggravating factor and Mr Snibson had had intermittent time off work over the years”. The plaintiff described chronic neck pain with radiation into the right shoulder and arm. There were similar symptoms on the left side, though less severe. Mr Dohrmann said the MRI scan of 1999 showed a moderate large right C5-6 disc prolapse with a mild degree of central canal narrowing. Mr Dohrmann said that “at the time of that consultation he was told that surgery was an option”. In May 2006, Mr Dohrmann said that it was likely that the plaintiff’s work as an optometrist over the past twenty years had been a significant contributing factor to the onset, development and perpetuation of symptoms due to cervical nerve-root compression.
35 In March 2006, Mr Dohrmann recommended surgical decompression as being an appropriate procedure. However, the plaintiff did not undergo the surgery. His symptoms changed in December 2007, and were described as neuropathic rather than nerve-root compression, and it was considered inappropriate to operate.
36 In December 2007, Mr Dohrmann said:
“If his condition has not changed significantly since he was last seen, then I would expect he would be unable to return to work as an optometrist in the future, because of the ongoing relationship of physical activity, and neck movements in particular, to the aggravation and perpetuation of his neck and arm pain.”
37 In February 2006, Mr Peter Turner, orthopaedic surgeon, saw the plaintiff at the request of his general practitioner to provide a second opinion in respect to the plaintiff’s ongoing problems with his neck. Mr Turner recommended surgery.
38 In November 2008, Dr Schweitzer, a specialist in anaesthesia and pain management, saw the plaintiff at the request of his general practitioner, Dr Tang. Dr Schweitzer said the plaintiff gave a clear history of a work practice with a high likelihood of causing cervical disc prolapse and facet joint degeneration which was totally consistent with his presentation. He considered the plaintiff’s injuries bore a direct cause and effect relationship with his employment. He said that surgery, e.g. cervical fusion, might provide temporary relief, but that this would lead to further problems.
39 Mr David Brownbill, consultant neurosurgeon, provided medico-legal reports of 29 August 2006, 13 December 2007 and 3 February 2010. Mr Brownbill said that he noted the various physical movements required in the daily performance of the plaintiff’s optometry work, and considered, on probability, such physical activities had been a significant contributing factor to the development and progression of the cervical intervertebral disc derangement and prolapses, on probability, based on a constitutional predisposition. He also said, that noting the progression of the symptoms of pain and paraesthesia and the demonstrated signs of nerve-root compression (radiculopathy), he considered it was not appropriate for the plaintiff to continue with employment that required the cervical spine mobility activities he had described with optometry. He thought that ongoing pain and paraesthesia may continue in a fluctuating manner indefinitely.
40 Mr Brownbill said that the plaintiff’s employment up to 12 November 1997 was a significant contributing factor to the aggravation and acceleration of the cervical spine degenerative changes, and particularly to disc derangement at C5-6. He said:
“Clinical experience shows that once cervical spine degenerative changes are rendered symptomatic, ongoing pain with resulting activity restrictions may continue even if the aggravating factors are removed (such as the aggravating factors of the cervical spine forced movements, involved in his work activities over the middle 1990s period).”
41 He considered the employment had been a significant contributing factor to the subsequent demonstrated prolapses at C5-6 and C6-7.
42 Mr Brownbill also considered that the employment up to January 2006 had been a significant contributing factor, by aggravation and acceleration to the cervical spine degenerative changes with intervertebral disc derangement. He said the ongoing paraesthesia will continue in a fluctuating manner indefinitely, and he did not consider it appropriate for the plaintiff to continue with employment that requires the full forced range of cervical spine movements as the plaintiff described of full optometry practice.
43 In February 2010, Mr Brownbill re-examined the plaintiff. He said there was restriction of cervical spine movements, and no objective neurological abnormality of the cranial nerves or the peripheral nervous system in the upper or lower limbs. There was no indication to modify his previous opinion in respect to the plaintiff’s employment as an optometrist. That is, it was a significant contributing factor to the aggravation of the cervical spine degenerative changes, with the resulting pain and activity restriction. Mr Brownbill said that the plaintiff’s demeanour suggested a likely emotional reaction component which, on probability, accentuated his symptom perception. However, he considered that it was based on pain arising from the organic cervical spine degenerative changes for which he considered the plaintiff’s work activities were a significant contributing factor.
44 Mr Brownbill said the plaintiff did not have a realistic capacity to perform his pre-injury duties as an optometrist. He considered the plaintiff could return to work activities that avoided heavy lifting, forced cervical spine mobility, or holding his neck in a fixed position. Mr Brownbill said any return to work should be in a graded fashion. Further, it was not possible to predict the number of hours the plaintiff would be able to perform avoiding those actions, and these would be determined by his responses.
45 Mr Brownbill considered that, on the balance of probabilities, the plaintiff’s employment since October 1990 as an optometrist was a significant contributing factor to his current neck injury and the C6-7 disc prolapse.
46 Dr Clayton Thomas, a consultant in rehabilitation and pain medicine, provided a report in December 2008 to the plaintiff’s solicitors. Dr Thomas did not believe the plaintiff, in his current condition, was capable of undertaking full- time unrestricted pre-accident work duties. He thought he could perform light duties, but could not maintain the one posture at work for more than 45 minutes. He thought the plaintiff, over a period, could increase his hours to 24 hours, performing office sedentary-type duties.
Psychiatrist/Psychologist Reports
47 The plaintiff was seen by Dr Paul Wendiggensen, a psychiatrist, on referral from his general practitioner in September and October 2008. He diagnosed a pain disorder associated with both psychological factors and a general medical condition, as well as an adjustment disorder with mixed anxiety and depressed mood (chronic) – currently in remission. He noted that for the last two years the plaintiff had been taking Lexapro, an anti-depressant. He recommended he reduce the dosage from 20 milligrams to 15 milligrams to reduce the side effects. He prescribed a tranquilliser to assist with his sleep.
48 The plaintiff was seen by Ms Perrett-Abrahams, psychologist, at the request of his general practitioner, from 2006 until November 2009 on a regular basis. She diagnosed a Chronic Adjustment Disorder with chronic pain, including neuropathic pain. She said psychological treatment is essential and will be required over the long term.
Chiropractor Report
49 Dr Rhonda Farquharson, a chiropractor, provided three reports dated 27 January, 24 February and 12 May 2006. Dr Farquharson had been treating the plaintiff since 2002 and was aware that the plaintiff had initiated a WorkCover claim in 1997 for chronic cervical and shoulder pain. In 2002, the plaintiff was experiencing ongoing cervical pain in particular, but not limited to the right side. It was her view that the plaintiff’s employment as an optometrist necessitated asymmetrical, sustained and posturally inappropriate positions in order to examine patients. She said these positions are virtually unavoidable, and place considerable load on the cervical spine.
50 Dr Farquharson said that for the duration of the plaintiff’s injury, work posture had been a source of increased cervical shoulder and inter-scapular pain. Periods of increased workload had correlated with periods of further pain increase. She stated that the plaintiff’s employment up to January 2006 was a significant contributing factor to his neck injury. She said it provided ongoing aggravation, contributed to phases of exacerbation of pain and limited function, and acted as a biomechanical stressor to degenerate tissues that promoted further internal disc derangement, resulting in acute annular tears with prolapse. She noted that rest had contributed to a lessening of symptoms, and that there had been no significant pain-free intervals, and the nature, location and subjective descriptions of pain had been mostly consistent. She noted that in May 2006, there was an emergence of neurological findings. Her prognosis was that a full resolution was not a foreseeable outcome for the plaintiff, and his employment was a significant contributing factor.
51 In May 2006, Dr Peter Bourke, chiropractor, reported that he had seen the plaintiff since 1998. It was his opinion that the plaintiff had a disc prolapse which had been contributed to significantly by his work posture. The nature of head position whilst doing “short focal distance work” is exacting, as the optometrist endeavours to position his eyeballs exactly (object/retina/macula relationships). He said it is well known in the field of spinal orthopaedics that intradiscal pressure is a function of head position and that disc pressure increases dramatically with weight-bearing flexion postures.
52 Dr Quinton Free, chiropractor, whilst only treating the plaintiff since September 2008, said that it was possible that the mode of repetitive injury and strain brought about by the plaintiff’s job’s posture and work conditions could have caused the plaintiff’s spinal condition.
Physiotherapist Report
53 Mr Andrew Mitchell, manipulative physiotherapist, in a report dated 16 May 2006, said that he had been treating the plaintiff since March 1997 until November 1998, and again in March 2006. He reported that the plaintiff complained of neck pain due to his work in the second half of 1996 when holding his arm in an abducted position for long periods of time. He had been treated by Dr A Broad for a rotator cuff-type injury. He had been treated with cortisone injections but his condition worsened. An ultrasound in February 1997 showed thickening of the subacromial bursa.
54 When examined in March 1997, the plaintiff complained of shoulder pain in the right, greater than the left, aggravated by prolonged shoulder elevation postures, small arm movements and cervical movements. He had difficulty with sleep and was being woken by pain. He said his pain increased over the course of the day and was better with rest over the weekends. The plaintiff reported pain that extended into the neck with shoulder movements.
55 Mr Mitchell said that in relation to the plaintiff’s cervical/thoracic spine, it was likely that the postures that the plaintiff adopted in his work were a significant factor in causing his shoulder bursitis and significantly contributed to his cervical spine injury. Mr Mitchell said it was not uncommon to find adjacent discs to the originally damaged disc to become injured due to the increased loading the adjacent disc has to bear. It was possible that the plaintiff’s work contributed to this ongoing process and the general deterioration of his condition, and it is also possible that this was a probable consequence of the original neck injury.
Ergonomic Report
56 In a report dated 30 October 2006, Mr Mark Dohrmann, engineer and ergonomist, said that there was no doubt that the postures demonstrated to him at interview by the plaintiff would have put high levels of mechanical stress on the cervical spine.
The Second Defendant’s Evidence
57 In a report of 4 May 2006, Dr Gary Davison, occupational physician, said that the plaintiff had suffered a workplace injury on 28 February 1997. The plaintiff had not played any regular sport since his school days. He had been a regular jogger and had continued to do so until recently, jogging two to four times per week. On examination, the plaintiff’s range of movement of the cervical spine was globally restricted to about two-thirds of the expected normal range. Much of the restriction was in the lower cervical segments. On neurological testing there was a weakness of finger extension on the right side, as well as the triceps. Grip strength was weaker on the right compared with the left.
58 It was Dr Davison’s view that the plaintiff’s employment had not significantly contributed to his injury, apart from temporary symptomatic aggravation which also occurred in his avocational pursuits. Dr Davison said the plaintiff had a multi-level degenerative condition which is constitutional in origin and unrelated to his employment. He did not consider the claim for neck injury was a sequelae of the original injury of February 1997.
59 In a report of 4 March 2009, Mr Jonathan Hooper, orthopaedic surgeon, said the plaintiff had a constitutional degenerative disc disease and he considered it:
“… is really stretching a long bow to suggest that his work of twisting and turning his head as an optometrist was in any way contributing to the present situation.”
60 Mr Hooper said the work may have aggravated the situation but did not cause the underlying pathology in the plaintiff’s neck. He considered that the plaintiff had a marked emotional component to his physical disability.
61 Mr Hooper said the plaintiff had multi-level degenerative disc disease which was constitutional. He noted that the plaintiff had not worked as an optometrist for many years. He considered the plaintiff’s condition was unlikely to improve significantly and that his invalidity will remain permanent.
62 The second defendant relied on the reports of Mr S Doig and Mr P Dohrmann.
The First and Third Defendants’ Evidence
63 Mr Clive Jones, orthopaedic surgeon, provided two reports, on 11 June 2007 and 28 August 2008. In June 2007, he said that the plaintiff’s employment had been a significant contributing factor to the development of his cervical disc injury, probably by way of aggravation. His prognosis was that generally with cervical disc lesions, the intensity of the arm pain tends to reduce with time, but may not disappear entirely. Further, the fact that the plaintiff does have degenerative change in the cervical spine means that his neck symptoms will continue to be troublesome and will not leave him.
64 In August 2008, Mr Jones said that there had been some improvement in the plaintiff’s symptoms in twelve months. He thought that the prognosis for this “essentially degenerative condition in the absence of nerve root involvement is good and continuing and ongoing recovery can be expected”. He thought the MRI findings were within normal limits for a forty-six-year-old and that the failure to improve over such a prolonged period of time was unusual.
65 In May 2009, Mr Michael Dooley, orthopaedic surgeon, saw the plaintiff at the request of the defendants’ solicitors. Mr Dooley said the plaintiff suffered from degenerative disc disease of the cervical spine, which he believed was probably aggravated during the course of his optometry work, and that probably in late 2005 or early 2006, the plaintiff suffered a right-sided C6-7 disc prolapse. This caused an increase in his usual neck pain, and was associated with right upper-limb pain related to nerve-root compression. He said the acute symptoms gradually resolved, but the plaintiff had been left with ongoing neck pain and intermittent upper-limb pain. He considered that the loss of cervical spine function had been moderate, on a scale of mild, moderate and severe, and that the impairment will persist for the foreseeable future. He said that the plaintiff would have difficulty with work that involved keeping his neck in one position for a prolonged period of time or carrying out work at an above-head level. He said that the plaintiff’s perceived disability relates to his psychological reaction to the injury and/or pain.
66 In July 2009, Mr Dooley viewed a DVD supplied by the defendants’ solicitors. He said that after viewing the DVD, assuming what he saw was normal practice for the majority of optometrists, unusual positions are not required in the assessment of most patients, and therefore, on the balance of probabilities, it is much less likely that a disc prolapse would have occurred as a consequence of posture. Further, it was unlikely that a rotator cuff syndrome or subacromial bursitis was precipitated by the posture required to carry out optometry work.
67 The third defendant relied upon a letter from Professor A Kaye to the plaintiff’s general practitioner dated 18 May 2007. Professor Kaye recommended continuing with conservative management. He recommended the plaintiff live an active life but should avoid unnecessary stressful activities or activities that might injure his neck. He suggested he recommence his work slowly as an optometrist and put up with discomfort rather than a major change in his profession.
68 The video depicting work of an optometrist was shown to the Court. The plaintiff acknowledged that it represented some of the work of an optometrist but was an abridged and simplified view of two of the normal procedures he would undertake.
Video Surveillance
69 The defendants showed three videos taken on 18 and 19 June 2009 and on 8 and 10 October 2009. The video of 18 June 2009 showed the plaintiff with a very straight neck. The plaintiff proceeded walking downhill with his arms not swinging in a natural rhythmic walk. The plaintiff crossed the road and turned his whole trunk to look to his left, consistent with a person with a handicapped neck. In cross-examination, the plaintiff said he tries to turn his whole trunk to avoid moving the neck, as turning the neck frequently either causes sudden pain or spasms or cramping.
70 The second video was taken on 19 June 2009. It showed the plaintiff moving slowly and cautiously doing supermarket shopping. The plaintiff was shown placing items into the boot of the car. The plaintiff was shown with a backpack whilst walking and indicated in cross-examination that he carried light weights to act as a support mechanism.
71 The video of 8 and 10 October 2009 showed the plaintiff moving with a rigidly straight spine.
72 I accept the video evidence revealed nothing inconsistent with the plaintiff’s claim or the histories recorded by medical practitioners. I accept that the activities depicted were consistent with the plaintiff’s claims. The fact that he was shown walking is consistent with the recommended therapy by his medical practitioners.
Credit of the Plaintiff
73 The plaintiff gave evidence and was cross-examined at length. He was articulate, educated and intelligent. I concluded that he was able to understand the medical advice he was given. He would ask intelligent questions of his treaters. He was aware that he had suffered a problem or injury with his neck during the 1990s . He was able to understand his neck pathology, and possessed an insight into his condition. He was aware of the effects of his injury and ability to continue working full-time . He was aware that if he changed his work environment and reduced his hours of work his neck condition improved. He considered the possibility of an alternate career. His medical practitioners accepted that he was a credible historian of his symptoms. There was no suggestion of exaggeration. In court he questioned facts put by counsel, such as the number of attendances he had with a manipulative therapist. He was unwilling to make concessions. He was cautious, exacting and he often clarified questions before answering. He went to great lengths to ensure the Court understood the effect his injuries had on his day-to-day life and career prospects.
74 He was questioned on correspondence to treating practitioners regarding reports they had been requested to write for his Court case. I interpret these actions as an example of the plaintiff’s pre-occupation with his injury and a lack of understanding of the court process.
75 I conclude overall that he was a credible witness.
The First Period – The Second Defendant
The Law
76 The plaintiff seeks leave to bring common law proceedings against the second defendant in respect of injury to his neck/cervical spine suffered during the period 1 December 1992 to 12 November 1997 (“the first period”). The relevant provision is s.135A(4)(b) of the Act.
77 Section 135A(6) of the Act provides that a court must not grant leave under subsection (4)(b) unless the court is satisfied that the injury is a serious injury.
78 The definition of serious injury relied upon by the plaintiff is under s.135A(19):
“serious injury means—
(a) serious long-term impairment or loss of a body function; or (c) severe long-term mental or severe long-term behavioural disturbance or disorder.”
79 Under s.135A, the serious injury referred to is largely in the same terms as s.134AB, except that it is “long term” rather than “permanent” and different law applies for the assessment of economic loss consequences under s.135A compared to s.134AB.
80 The inquiry under paragraph (a) of the definition “focuses attention first upon whether the injury has produced an organic impairment (or loss) of a body function and then, by reference to the consequences of that impairment, to determine whether it is ‘serious’ and ‘long-term’”.[9]
[9] see Humphries v Poljak [1992] 2 VR 129
81 The test of “serious injury” in s.135A(19) of the Act is subjective. In order to meet the threshold test established by the definition of “serious injury”, the effect on the particular individual must be considered and the consequences of the injury must be serious to that person. However, the determination must be made objectively by the Court as to the seriousness of the impairment or loss determined by comparison with other cases in the range of possible impairments or losses. The injury must be capable of being described as at least “very considerable” and certainly more than “significant” or “marked”. The consequences must be long-term. Those consequences will relate to pecuniary disadvantage and/or pain and suffering.[10]
[10] Humphries v Poljak (ibid) at 136-141
82 So far as psychiatric or mental consequences are relevant to the plaintiff’s application pursuant to s.135A and s.134AB of the Act, Richards & Anor v Wylie[11] is authority for the proposition that inquiry must first concentrate on whether the injury has produced an organic impairment (or loss) of a body function and then, by reference to the consequences of that impairment, to determine whether it is “serious” and “long-term”. The serious injury could have its seriousness measured in part by a mental response to a physical impairment. However, if the consequences of a mental disturbance or disorder produced an impairment of body function, that condition fell to be considered under part (c) as psychiatric injuries.[12]
[11] (2000) 1 VR 79
[12] (ibid) at pages 87-88
83 Section 135A(6) does not specify the standard of proof. I accept it is on the balance of probabilities.
Compensable Injury
84 The plaintiff must identify a compensable injury to which s.135A(4)(b) of the Act applies.
85 The plaintiff is required to establish that his work with the second defendant in the period 1 December 1992 to 11 November 1997 inclusive was a significant contributing factor to his neck condition.[13]
[13] Section 135A(2)
86 I accept that this is a question of causation which itself is a question of fact.
87 Based upon the medical evidence, I accept that the plaintiff suffered a compensable injury in the second defendant’s employment.
88 In accepting that there is a causal connection between his employment, I rely upon the plaintiff’s evidence that he suffered a work-related injury with the second defendant. He initiated a WorkCover claim in April 1997 regarding injury to his shoulders, which he stated was due to constant repetitive arm extension in an awkward posture to manipulate technical equipment.[14] The letter acknowledging acceptance of liability from FAI Workers Compensation Vic Pty Ltd dated 16 April 1997, gave the date of injury as 28 February 1997.[15] I accept that the letter is evidence that there was a work-related injury of the requisite kind, namely one to which work was a significant contributing factor, albeit not conclusive, a defendant may be able to satisfactorily explain its conduct: Ansett Australia Ltd v Taylor[16] and Grech v Orica Australia Pty Ltd.[17] He received extensive treatment from a manipulative physiotherapist, Mr Mitchell, who attributed his complaints to his work as an optometrist from 1996. He was seen by Mr Doig, orthopaedic surgeon, in 1997 and on other occasions. It was Mr Doig’s view that the plaintiff’s employment was a significant contributing factor.
[14] WorkCover claim form completed by the plaintiff on 9 April 1997
[15] Plaintiff’s Court Book page 157
[16] [2006] VSCA 171
[17] (2006) 14 VR 602 at 41
89 In 2001, Mr Dohrmann reviewed the plaintiff at the request of Mr Doig. In a report dated 2006, Mr Dohrmann said it was likely that the plaintiff’s employment as an optometrist over the past twenty years has been a significant contributing factor to the onset, development and perpetuation of symptoms due to cervical nerve root compression. He said it was unlikely that employment alone caused either of the disc prolapses though it is likely employment has been an exacerbating factor of significance.
90 Dr Tang, the plaintiff’s general practitioner, said the plaintiff’s occupation as an optometrist for the past twenty years had contributed significantly to the development and chronicity of his symptoms.
91 Mr Brownbill said the plaintiff’s employment up to 12 November 1997 was a significant contributing factor to the aggravation and acceleration of the cervical spine degenerative changes and particularly to disc derangement at C5-6.
92 The plaintiff’s chiropractors supported the causal connection also.
93 The second defendant’s medical evidence did not support the connection.
94 Dr Davison said that the plaintiff’s employment had not significantly contributed to his injury apart from temporary symptomatic aggravation which also occurred in his vocational pursuits. It was Dr Davison’s view that the plaintiff had a multi-level degenerative condition which is constitutional in origin and unrelated to his employment. Mr Hooper agreed with Dr Davison.
95 I favour the plaintiff’s treaters, namely, the views of Mr Doig, Mr Dohrman, Mr Tang, Mr Mitchell and Dr Farquharson, because on the whole, the plaintiff’s treaters saw the plaintiff on a number of occasions over a protracted period, in particular, in the late 1990s and early 2000s; whereas the second defendant’s medical evidence was obtained in 2006 and 2009.
96 Accordingly, I am satisfied that there is an injury to which s.135A(4)(b) applied arising out of the employment in the first period.
Serious Injury
97 In addition to being satisfied that there is a compensable injury in the relevant period, I must also be satisfied that the injury is a cause of serious injury consequences at the date of hearing.
98 I accept the submission of the plaintiff that the nature of the injury, for the purpose of s.135A, from the evidence, can be described as an aggravation of degenerative changes in the cervical spine. The aggravation brought about the onset of symptoms and influenced the pathological degenerative process causing prolapses at C5-6 and C6-7. The compensable injury is thus a progressive one and the effect of the work for the period 1 December 1992 to 11 November 1997 set up and had a continuing effect on the progression of the plaintiff’s neck condition beyond 11 November 1997. It also materially contributed to a vulnerability to the effects of further work from 20 October 1999 until about the end of January 2006.[18]
[18] The plaintiff’s Submissions dated 22 March 2010, at page 16
99 I accept there can be a separation in time between the occurrence of injury and the consequences of the injury which qualify as “serious injury”. Section 135AC recognizes such a situation.
100 The injury need not be the sole cause of the plaintiff’s incapacity. There can be a multiplicity of compensable injuries, each contributing to the serious injury consequences such as in this case: see RJ Gilbertsons Pty Ltd v Skorsis;[19] Alcoa of Australia Ltd v McKenna;[20] Grech v Orica Australia Pty Ltd & Anor.[21]
[19] (2000) 12 VR 386 at paragraph 26
[20] (2003) 8 VR 452 at paragraph 62
[21] (ibid, fn 17) at paragraphs 51-55
101 I accept that the preponderance of the medical opinion is that there is an ongoing contribution of the plaintiff’s employment during the first period with the injury to his present neck and spine.
Knowledge Defence – Section 135AC(b)
102 Having found the plaintiff suffered a compensable injury to his neck during the course of his employment with the second defendant which is a cause of the plaintiff’s present condition, I must then consider s.135AC(b) of the Act.
103 Under s.135AC(a) of the Act, any application for determination pursuant to s.135A(2)(b) must be issued before 1 September 2000. The plaintiff’s application was not issued until 22 December 2008 and is therefore, prima facie, out of time, and he is precluded from bringing proceedings against the second defendant. However, under s.135AC(b) of the Act:
“if the cause of action arose before 12 November 1997 and the incapacity
arising from the injury was not known until after 12 November 1997 …”;
the plaintiff may bring his application provided he does so –
“… before the expiration of three years after the date the incapacity
became known.”
104 Thus, the plaintiff must prove, the onus being upon him, that prior to 22 December 2005, he was not aware of the serious injury consequences of the injury arising from pre November 1997 employment.
105 In AEP Industries Australia Pty Ltd v Mahmoud,[22] the Court of Appeal accepted on appeal that s.135AC(b) involved a two-step process: first, the trial judge must identify what the injured worker in fact knew in relation to his injury at the relevant time; and second, whether those facts constituted knowledge of serious injury incapacity as explained in Humphries v Poljak.
[22] (2007) 17 VR 144
106 As Ashley JA, with whom Maxwell ACJ and Nettle JA agreed, stated in Papercorp Pty Ltd v Nicolaou:[23]
“It is for the judge hearing a s 135A(4)(b) application to decide what the worker knew about the extent of and probable duration of his or her incapacity arising from the compensable injury at a particular time; and, always assuming that what the worker knew represented the truth of the situation, whether what the worker knew fitted the template of serious injury incapacity, that template involving elements of fact, degree and value judgment.”
[23] Howden v Ansett Australia [2006] VSCA 143, at paragraph 50
107 Further, Ashley JA stated, at paragraph 33, that the ‘knowledge of incapacity arising from the injury’ may be either constituted by pain and suffering, or pecuniary disadvantage or both”:
“It appears to me, in the event, that the words ‘the incapacity arising from the injury’ in s 135AC(b) should be taken to mean any consequence, known to the worker, deriving from compensable injury, whether constituted by pain or suffering, or pecuniary disadvantage, or both, which would found a successful serious injury application. So to read the critical words is to recognize that ‘the [serious injury] incapacity arising from the injury’ may be sufficiently constituted for the purposes of the subsection by a single consequence. … .”
108 The issue then is, what was the plaintiff’s knowledge of the extent and probable duration of his incapacity arising from his neck injury as of 19 December 2005? What is relevant is his knowledge of facts which, when viewed objectively, constitute serious injury capacity.
109 As Beach AJA said in Smith v Canberra Press Pty Ltd:[24]
“… successive decisions of this court have established, the fact that a worker does not know that his injuries constitute a serious injury is not relevant for the purposes of s 135AC. What is relevant is knowledge of facts which, when viewed objectively, constitute serious injury incapacity. By the same reasoning, a lack of awareness that a worker had a cause of action arising from the injuries the subject of an application under s 135A has no bearing when considering whether the application under s 135A(2B) was brought within time or not.”
[24] [2009] VSCA 200, at paragraph 11
110 See also Redlich JA’s judgement in AEP Industries Australia Pty Ltd v Mahmoud.[25]
[25] (ibid) at paragraph 28
111 Thus, knowledge means the subjective knowledge of the worker, not suspicion or knowledge as objectively assessed.[26]
[26] Paget v JLT Workers Compensation Services Pty Ltd & Anor (2005) 12 VR 692, at paragraphs 26 and 29
112 The knowledge is not knowledge of serious injury, but rather knowledge of “incapacity arising from injury”.[27]
[27] Edwards v McSaveney & Anor [2005] VSCA 252
113 While the knowledge is the subjective knowledge of the plaintiff, it is not his “subjective value judgment” of incapacity[28] which is to be taken into account. As Nettle JA said in Papercorp:[29]
“There is a long way between Callaway JA’s man of fortitude and a man or woman who beyond fortitude or for some other reason deliberately closes his or her eyes to the obvious; … .”
[28] Papercorp Pty Ltd v Nicolaou; Howden v Ansett Australia (ibid)
[29] at paragraph 5
114 I infer from the authorities that, while it is the subjective knowledge of the plaintiff that is to be taken into account, that knowledge must be realistically appraised. Thus, the example is given in Papercorp Pty Ltd v Nicolaou[30] of the worker who loses a limb but claims he or she does not care and the consequences are not serious. Matters such as the worker’s optimism as to prognosis and the ability of the worker to block out pain may be taken into account.[31]
[30] at paragraph 40
[31] at paragraph 47
115 In determining the state of the plaintiff’s knowledge in this case, I have considered his affidavit, his viva voce evidence, exhibit D3A, the histories he has provided to various medical practitioners and the opinions of various doctors, particularly treating doctors, over the relevant time, provided that I am satisfied it is reasonable to infer those opinions were conveyed to the plaintiff.
116 It was submitted by counsel for the plaintiff that the consequences referred to as constituting serious injury evolved over many years but came to light from early 2006 onwards. These consequences had not occurred, were not known and could not have been known prior to their materialisation after 2005. I accept that prior to 2006, the plaintiff’s condition was, and the plaintiff knew it to be, a fluctuating condition with highs and lows, though generally progressively worsening.
117 The plaintiff suffered neck pain which continually declined in the period 1995 to 1997, resulting in him consulting with Mr S Doig, orthopaedic surgeon, for treatment of his neck.
118 In March 1997, the plaintiff was referred to Mr Mitchell, manipulative therapist, for treatment over a number of years. April 1997 was the date of injury for a WorkCover claim submitted by the plaintiff. The plaintiff underwent an MRI scan of his cervical spine in November 1999 which revealed a prolapse at the level of C5-6. The plaintiff said that he understood that there was a correlation between his symptoms and the MRI findings.
119 In 2001, he was referred to Mr Dohrmann, who said that surgery was an option but he expected the plaintiff would not need surgery. At that stage the plaintiff said he would have had a few days off work here and there, he would not have lost income at that point as he did not use up all his sick days. The plaintiff continued to work, and in 2003, enrolled at RMIT to complete his honours psychology degree whilst working as an optometrist. He was playing tennis and exercising fairly regularly at that time, albeit with some difficulties.
120 The plaintiff described paresthesia affecting his right arm in late 2005. In re- examination, the plaintiff agreed that until the escalation of pain in late 2005, he had the capacity to work full-time as a clinical optometrist if he chose. The medical reports of 2006 put the paresthesia as in December 2005 or January 2006.
121 I accept that the plaintiff did have treatment from a chiropractor and physiotherapist well before 2005 but the evidence is the treatment helped him to continue functioning for work and for his recreational activities. The fact was, until late 2005, he had the capacity to work full-time as a clinical optometrist if he chose. I accept that the plaintiff became aware of the serious injury incapacity, namely the likely long-term incapacity for employment and restrictions in activities of daily living around February 2006.
122 Up until that time, February 2006, the plaintiff was able to work, albeit reduced hours, and was able to manage his symptoms with minimal conservative treatment. From February 2006, he ceased work and became aware of the second disc prolapse.
123 The plaintiff’s evidence between 2001 until the end of 2005 was that he was having intermittent treatment but there was no intense quest to deal with the issue. The plaintiff appreciated that whilst the problem was undulating, he was managing it and coping with it.[32]
[32] Transcript 106, lines 20 to 28
124 The plaintiff’s medical evidence supports the plaintiff’s lack of knowledge until February 2006. His general practitioner forwarded a letter to Mr David de la Harpe, orthopaedic surgeon, dated 30 January 2006, where he said:
“He has actually had this as an issue for several years, although has found it an exacerbation in the last few months, and particularly so in the last week or two wherein he is experiencing increasing constant right arm to hand paresthesia and pain that is interfering with his occupation as an optometrist and in his general life.”
125 In a report dated 19 May 2006, his general practitioner said he presented in January 2006 to Blackburn Clinic with a description of further right arm pain and weakness of certain functions of his hand. He said:
“These symptoms have certainly re-flared since December 2005.”
126 In a report from Dr Rhonda Farquharson, chiropractor, dated 27 January 2006, she said the plaintiff has received ongoing management for chronic cervical and referred upper limb pain which is subject to “a current exacerbation”. In referring to his previous history of C5-6 prolapse, she noted that subjective paresthesia and weakness in the upper limb are intermittently reported. In June 2005, she said he had had a similar episode of pain which resolved over three weeks.
127 An MRI scan was performed on 7 February 2006 at the request of Mr de la Harpe.[33] The findings were:
“Multilevel disc degeneration with small central disc protrusion at C4/5 without neural compromise. At C5/6 there is a broadbased central/right paracentral disc protrusion with minor mass effect on the right C6 nerve and mild cord indentation. At C6/7 there is a large paracentral/foraminal disc protrusion, obliterating the existing right C7 nerve resulting in mild cord compression and rotation. The appearances at C4/5 and C5/6 are unchanged in comparison to previous MRI (Cabrini Hospital 30.11.99). The C6/7 level was within normal limits on previous examination.”
[33] Plaintiff’s Court Book 20
128 In February 2006, Mr Peter Dohrmann said that the plaintiff was at a point where surgery warrants active consideration, and noted that he had a moderately large right C6-7 disc prolapse and had had significant persistent symptoms since the latter part of 2005.
129 In February 2006, Mr Peter Turner, orthopaedic surgeon, said that the plaintiff had been having ongoing problems with his neck but these had increased over the last few months. He referred to the recent MRI scan and described it as a large disc prolapse at the C6-7 level on the right side which was certainly compressing the C7 nerve root and also deforming the right side of the spinal chord. He said in addition to this very obvious abnormality, there was also some central bulging of the C4-5 and C5-6 discs.
130 In May 2006, Mr de la Harpe said in a report to CGU Workers’ Compensation:
“He was reviewed at the Epworth Rooms on 10/2/2006. He was 42 year old Optometrist. At that stage he had had 4 weeks of quite severe right arm pain in a C7 distribution. Apparently he had some trouble in 1999 with a C5-6 disc prolapse and this was now resolved. He had recently had a short course of 100 milligrams of Prednisolone which helped his pain a lot, but it was slowly recurring as he had ceased his prednisolone. He felt quite weak in his right arm and could not do push-ups …. His MRI scan… clearly showed quite a large right sided C6-7 disc prolapse which would be accounting for his symptoms …. He was going to get some second opinions and I suggested that we could certainly wait a couple of weeks whilst the Prednisolone exited his body to see whether the pain was still present and quite as severe.”
131 Mr de la Harpe referred to an acute C6-7 disc prolapse.
132 In a history to Mr Brownbill, the plaintiff reportedly said:
“In late 2005, there was a gradual further increase in right arm and hand pain with pain between the shoulders and he reduced his working hours. He has not worked since January 2006 because of the pain.”
133 In August 2006, Mr Brownbill considered it was not appropriate for him to continue with his employment as an optometrist.
134 Having undertaken an assessment of the plaintiff’s knowledge as at 22 December 2005, I am of the view that the plaintiff did not have the necessary subjective knowledge of the serious consequences imposed by the injury to his neck, particularly in relation to his work capacity. I take the view that the plaintiff’s actual knowledge of matters which, viewed objectively, constituted a serious injury incapacity in terms of pain and suffering or economic loss, or both, occurred in February 2006.
135 Accordingly, the plaintiff’s application for determination was issued within the expiration of three years after the date that he became aware of the serious injury incapacity arising from the injury. Thus, his application for leave to bring proceedings for damages pursuant to s.135A(4)(b) is granted.
The Second Period – Section 134AB – the First and Third Defendants
The Law
136 In addition, the plaintiff makes an application pursuant to s.134AB(16)(b) of the Act for leave to proceed against the first and third defendants in respect of a similar injury suffered during the period 20 October 1999 to 9 February 2006 (“the second period”).
137 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
138 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[34]
[34] S.134AB(19)(a) of the Act
139 The plaintiff relies upon sub-sections (a) and (c) of the definition of “serious injury” in s.134AB(37), that is:
(a) permanent serious impairment or loss of a body function; (c) permanent severe mental or permanent severe behavioural disturbance or disorder. 140 Where, such as in this case, a plaintiff makes a claim based upon a physical injury (a serious injury application under paragraph (a) and (c) of the definition of “serious injury”, s.134AB(37), a court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically-based: see Barwon Spinners Pty Ltd & Ors v Podolak.[35] The Court must examine the consequences of a physical impairment in the separate context of:
[35] (2005) 14 VR 622
(a) pain and suffering; and (b) loss of earning capacity. 141 In order to succeed, the plaintiff must prove on the balance of probabilities
that:
(a)
“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the third defendant for the period on or after 20 October 1999;[36]
(b)
the impairment of the body function and/or the mental or behavioural disturbance or disorder must be permanent, in the sense that it is likely to continue into the foreseeable future;[37]
(c)
by sub-section (38)(b) of the Act, the terms “serious” and “severe” are to be:
[36] S.134AB(1) of the Act and Barwon Spinners at paragraph [11]
[37] Barwon Spinners (ibid), at paragraph 11
“… satisfied by reference to the consequences to the worker of any impairment or loss of body function, mental or behavioural disturbance … with respect to pain and suffering or loss of earning capacity… when judged by comparison with other cases in the range of possible impairments or losses of body function or mental or behavioural disturbances or disorders, respectively.”
(d)
by sub-section 38(c) of the Act, an impairment or loss of body function, in this case, the pain and suffering and the loss of earning capacity, shall not be held to be serious unless the consequences, when judged by comparison with other cases is:
“… fairly described as being more than significant or marked and
as being at least very considerable.”
(e)
by sub-section 38(d) of the Act, the consequences to the plaintiff of the mental or behavioural disturbance or disorder in relation to “pain and suffering” or “loss of earning capacity” must be “severe” – that is “when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, be fairly described as being more than serious to the extent of being severe”;
(f)
I am required to objectively consider the consequences to this particular plaintiff 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;
(g)
where there is a claim for loss of earning capacity, as in this case, that loss of earning capacity must be to the extent of forty per cent or more both at the date of hearing and permanently thereafter;
(i) subsection 38(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(j) subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases. 142 In reaching my conclusion, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[38] and Grech v Orica Australia Pty Ltd & Anor.[39]
[38] (ibid)
[39] (ibid)
143 In this case, where there is a pre-existing neck condition, I must consider what the evidence discloses as to the plaintiff’s prior neck condition and determine whether the additional impairment resulting from his work with the third defendant from 20 October 1999 to the end of January 2006 is serious and permanent.
144 The Court of Appeal recently dealt with the question of aggravation cases in Guppy v Victorian WorkCover Authority.[40]
[40] [2010] VSCA 164
145 In that case, the Court consisted of Maxwell P, Nettle JA and Emerton AJA.
146 The Court, at paragraph 19, referred to the decision in Petkovski v Galletti, in which the Appeal Division of the Court held:
“… in relation to broadly equivalent provisions of the Transport Accident Act 1986 (Vic), that where there was an aggravation of a pre-existing condition or injury, the applicant was required to establish what injury was caused by the accident. An analysis had to be made of the extent of impairment of a body function before and after the relevant injury, and the additional impairment had to involve serious long term impairment of body function.”
147 In the footnote to that reference, paragraphs 443-4 in Petkovski of Teague and Southwell JJ, was referred to. It was noted that:
“Their Honours observed that the Transport Accident Act 1986 (Vic) did not affect the long-established principle that a person injured could be compensated for, but only for, such disabilities as were proved to have resulted from the relevant accident. There appeared to be some question in the mind of the learned judge below as to whether Grech v Orica Australia Pty Ltd (2006) 14 VR 602 … rather than Petkovski was the authority that he should follow.”
148 While it was clearly appropriate for the learned trial judge to follow Petkovski, the Court of Appeal held there was no inconsistency between Petkovski and
Grech.
149 It follows that the plaintiff, to reach the threshold of serious injury, is required to establish the aggravation from the employment from 20 October 1999 with the third defendant is permanent at the time of the hearing in its effect on the cervical spine and the effects of the aggravation must be serious: Barwon Spinners Pty Ltd v Podolak.[41]
Compensable Injury
[41] Grech (supra) at paragraphs 56-58
150 I find the plaintiff suffered a compensable injury to his neck in the course of his employment with the third defendant, working as an optometrist, which work involved repetition and strain. I refer to paragraph 7 of the plaintiff’s first affidavit, his evidence in cross-examination of the video taken in February 2009, which showed the work of an optometrist, and his evidence of uncomfortable postural positions. I accept the injury was an aggravation of the underlying degenerative changes resulting in disc prolapses at C5-6 and C6-7 with residual neuropathic pain and referred symptoms to the shoulders and upper limbs. I rely upon the medical opinions of the plaintiff’s doctors, together with reports provided by the third defendant and Mr Clive Jones and, to a degree, Mr Michael Dooley. Both Mr Jones and initially Mr Dooley, accepted that the plaintiff had suffered from a degenerative disc disease of the cervical spine which was aggravated during the course of his optometry work but after viewing a DVD of an optometrist at work, Mr Dooley thought it less likely that a disc prolapse would have occurred as a consequence of posture. The plaintiff’s evidence was that the DVD did not represent all of the ways he would use his arms and neck in the course of work, it did not cover all the activities he was required to perform in those procedures and many activities he was required to perform were not shown.
151 I accept that the law allows for multiple causes of the one set of consequences. In the present case, it matters not that work prior to 20 October 1999 may also be a cause of the plaintiff’s ultimate condition, or that the plaintiff’s underlying constitutional degenerative change may also be a cause. It matters not if work with Strachan Eyecare and or Vision Crest has also contributed in some ways. It is sufficient if the employment with the third defendant post 19 October 1999 was also a relevant cause. Accordingly, I am satisfied that the plaintiff sustained a compensable injury in the form of an aggravation of underling degenerative changes which resulted in increased symptoms and C5-6 and C6-7 disc prolapses.
Loss of Earning Capacity
152 The provisions of s.134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and/or loss of earning capacity.[42] The subsection then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[43] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[44]
[42] S.134AB(38)(b), (c) and (d)
[43] S.134AB(38)(b), (c), (e), (f) and (g)
[44] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, at 63
153 It is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff.
The Narrative Test
154 At the time of the hearing, the evidence was that in 2006 the plaintiff had ceased working as an optometrist. Most of the doctors had expressed the view that the plaintiff could not return to his pre-injury employment, he could return to employment that avoided heavy lifting, forced cervical spine mobility or holding his neck in a fixed position, but in a graded fashion. In 2010, Mr Brownbill said he could not return to his pre-injury employment. He said he could return to work which avoided forced cervical spine mobility or holding his head in a fixed position. He could not predict the number of hours he could work. Mr Clive Jones expressed the view that if the plaintiff returned to employment as an optometrist, his symptoms could well re-appear. The fact that the plaintiff does have degenerative change in the cervical spine means that his neck symptoms will continue to be troublesome and will not leave him. None of the medical opinions suggested that the plaintiff’s position in relation to employment would improve. For a professional person who has been in constant employment and is aged forty-five, that is a significant consequence. The evidence was that he had attempted to work part-time in an administrative role with the Optometrists Association. He had worked 10 hours per week but with difficulty. It was a job for 20 hours a week. Currently he was unemployed. He said he hoped he could work in a part-time capacity as an optometrist but not in a clinical setting. This is contrary to the medical opinions. I accept that given the medical evidence, this is an aspirational conjecture of the plaintiff.
155 I am satisfied that it is fair to describe the consequences of the plaintiff’s loss of earning capacity as being more than significant or marked and as being at least very considerable and properly regarded as serious when judged by comparison with other cases in the range. The plaintiff therefore satisfied the narrative test.
The Statutory Test
156 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a) at the date of the hearing he has a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i); and also (b) after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 157 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. 158 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
159 “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.
160 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.
161 The plaintiff provided a letter from Strachan Eyecare prepared by Greg Strachan, an optometrist who was a partner in the business. Mr Strachan is currently the president of the Optometrists Registration Board of Victoria, a position he has held for five years, and has been a member of the Board since 1996. The plaintiff previously worked as a part-time optometrist in Mr Strachan’s business from June 2004 to the end of February 2006. Mr Strachan said that given the plaintiff’s experience and skill set, the plaintiff’s range of remuneration would be $130,000 to $140,000 per annum as at 17 February 2010, reduced by 5 per cent to provide the figure as at early 2009, giving a range of $123,500 to $133,000. It was submitted that it was proper and appropriate to allow for the increments in wages from the time of injury in early 2006 up until the three-year point post injury in assessing the income most fairly reflective of capacity. The mean figure is $128,150. Sixty per cent of that figure is $76,890.
162 The submission of the third defendant was that the plaintiff’s income taxation returns for the financial year 1999 to 2004 disclosed much lower annual earnings. If 2005 is taken as the date of injury, then the relevant returns are those for 2002 to 2004, in which his gross earning were $61,465.00, $67,003.00 and $45,896.00. A comparable employee with the third defendant would earn approximately $114,000 gross per annum currently. Based on that figure, to succeed the plaintiff must show he cannot earn more than $69,000 per annum and that this reduction in earning capacity is permanent. As to that submission, firstly, I take the view the date of injury, February 2006; secondly, there is no evidence as to whether the “comparable employee” is an optometrist with the same experience and knowledge as that of the plaintiff.
163 Counsel for the plaintiff submitted that the plaintiff cannot now earn the figure of $76,890 and that in the future he will have at least, and probably greater than, the 40 per cent loss required.
164 The evidence was that the earnings of a full-time administrator with the Optometrists Association was $70,000 per annum, but the plaintiff, could not perform this work when he attempted to do so in 2005. In any event, it was work only for a job of 20 hours per week; the plaintiff only managed 10 hours on a trial and was unable to increase his hours. Dr Thomas’ assessment of 24 hours per week in this type of work is $44,100 per annum, which is well short of $76,890 per annum.
165 I accept the figures that were put to me by the plaintiff. I do so, because, firstly, Mr Strachan provided those figures knowing the plaintiff’s experience and knowledge; and secondly, he is the president of the Optometrist’s Registration Board of Victoria.
166 The plaintiff is required to satisfy me that even if such retraining and rehabilitation was undertaken, he would still sustain a loss of 40 per cent.
167 The plaintiff provided a letter dated 9 March 2010 which set out up-to-date material relating to the occupation of a psychologist.
168 Even if the plaintiff retrained or completed his studies and was registered as a psychologist, I accept he would only have a working capacity of 24 hours per week on the evidence of Dr Thomas.
169 The present income of an established, experienced psychologist is $86,433.90 per annum. 24 hours per week translates to $54,540 per annum, which is less than $76,890. The plaintiff would still suffer a loss of 40 per cent.
170 I am satisfied that rehabilitation would not assist the plaintiff.
171 I am satisfied the plaintiff has satisfied the requirements of s.134AB(38)(g) of the Act.
172 Therefore, I am satisfied the plaintiff satisfies the 40 per cent requirement and has sustained an injury within the meaning of s.134AB.
173 I accept that the consequences of the injury are permanent within the relevant section, that is, for the foreseeable future. There is no medical opinion that any treatment will alter the current course.
174 Accordingly, I find that the plaintiff satisfies the arithmetical formula established by the Act.
175 The above position is reached purely by reference to the plaintiff’s physical condition. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s.134AB(38)(h) of the Act.
Conclusion
176 Having made these findings, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for pain and suffering and economic loss consequences as a result of his employment with the first defendant.
177 I am obliged to apply the definition of “serious injury” relied upon, but also to have regard to the guidance of Humphries v Poljak[45] that I should make a judgment whether the plaintiff has suffered a serious injury by comparison with other cases n the range of possible impairments or losses. I am satisfied that he has suffered an injury to his neck, the consequences of which are both serious and long-term. The consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful.
[45] (ibid) at 140
178 Finally, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law against the first, second and third defendants seeking damages for pain and suffering and loss of earning capacity as a result of his employment in the first and second period.
179 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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