Steele v Falls Creek Oversnow Pty Ltd

[2014] VCC 334

IN THE COUNTY COURT OF VICTORIA

AT WODONGA

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No.  CI-12-05160

JAMES RUPERT STEELE	Plaintiff
v
FALLS CREEK OVERSNOW PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Wodonga
DATE OF HEARING:	6 and 11 March 2014
DATE OF JUDGMENT:	27 March 2014
CASE MAY BE CITED AS:	Steele v Falls Creek Oversnow Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VCC 334

REASONS FOR JUDGMENT

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Subject:  ACCIDENT COMPENSATION

Catchwords:             Damages – serious injury – injury to the lumbar spine – loss of earning capacity only

Legislation Cited:     Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602

Judgment:                 Leave granted to bring proceedings for damages for loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Monti SC with Mr R Morrow	Nevin Lenne & Gross
For the Defendant	Ms K Galpin with Mr D Oldfield	Wisewould Mahony Lawyers

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant in June 2009 (“the said period”).

2       The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only. 

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

“(a)     permanent serious impairment or loss of a body function.”

4       The body function relied upon in this case is the lumbar spine. 

5       The impairment of the body function must be permanent.

6       The plaintiff bears an overall burden of proof upon the balance of probabilities.  Apart from the general burden, ss(19) and ss(38)(e) impose specific burdens in relation to a claim for loss of earning capacity.

7       Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.

8       Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

9       Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

10      Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

11      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.

[1](2005) 14 VR 622

[2](2006) 14 VR 602

12      The plaintiff relied upon two affidavits and gave viva voce evidence.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence 

13      The plaintiff is presently aged sixty three.  He is presently in receipt of weekly payments of compensation.

14      The plaintiff attended school to Year 11.  He was then employed as a mechanic.  He worked in that field for seven years and moved to the motorcycle industry, where he worked in sales and management and eventually became the manager of Peter Stevens Motor Cycle Group (“Peter Stevens”) for twenty five years. 

15      Peter Stevens had five retail outlets with a large number of other dealerships around Australia.  The plaintiff was constantly in and out of the dealerships – “It was really management by walking around.”[3]  He was not required to do any paperwork.

[3]Transcript (“T”) 10

16      From about the age of eighteen, the plaintiff held a pilot’s licence.  When he was in his early forties, he obtained concurrent employment doing weekend flights between Victoria and Tasmania.  This was a source of income and gave the plaintiff great enjoyment. 

17      After the plaintiff ceased work with Peter Stevens in 1997, he was employed for a period full time as a commercial pilot.  At about that time, he and his wife had their first child and they decided to move to Mount Beauty. 

18      The plaintiff then worked driving a snow cart for one season and also worked for the lift company in its workshop rebuilding gripper boxes.[4]  That period was partly a holiday as the plaintiff had not had a holiday in years.

[4]T12

19      Having been at Mount Beauty for eighteen months in 1999, the plaintiff returned to Melbourne and ran the Rolls Royce organisation.  His job was to manage staff, and he did a lot of car sales.  He was probably paid in the vicinity of $100,000.

20      The plaintiff then worked for Buxton Real Estate in Melbourne for a few months.  Before starting this work, he obtained a Sub-Agent’s Licence.  He was then offered a job at Alpine Valley Real Estate in Mount Beauty in 2000, where he worked until 2006. 

21      The plaintiff ran the office and did sales.  Another employee looked after rentals.  The plaintiff spent a lot of time putting up and checking signs, tidying up and carrying out inspections.  He had to measure properties and take photographs, tasks that could take up to three hours.[5]

[5]T26

22      Ninety nine per cent of properties sold were in the local area and within a five-minute drive.  The plaintiff also did valuations for rates purposes and appraisals for rental properties.  He was in and out of the car all day.  His car was his office.[6]  He spent a couple of hours in the office during the day and the rest of the time running around.

[6]T27

23      The plaintiff disagreed that he would be able to return to this type of work now “as the regularity of it would produce extreme pain”.[7]  He started out “ok” first thing in the morning with just mild pain and then, just moving around the house doing basic things, the pain became moderate.  If he had to place any real demands on himself to be somewhere or to “bang in a sign”, by lunchtime, the pain would be severe – it would almost be debilitating.  Mild discomfort would not stop him going into the office but as soon as he got there and started to move around, the pain would escalate with activity.[8]

[7]T27

[8]T28

24      In late 2006, the plaintiff left his real estate to work on a private project to subdivide a 5-acre block of land upon which his family lived.  The block was subdivided into three titles between 2006 and 2009.  When the plaintiff commenced working with the defendant, he continued on the subdivision.

25      The subdivision was a fairly time consuming activity, getting everything through Council, VicRoads and the Water Board and organising road builders.  The plaintiff spent time on the telephone and writing letters and visiting people.  Over two years, he spent half a day every day on these tasks.  During that time, the plaintiff lived on his savings and his partner’s income.[9]

[9]T30

26      The plaintiff started work with the defendant on 13 June 2009 as a snow cab driver.  He had a contract to work a five-day week over a seven-day rotating roster.  The contract was for 40 to 42 hours per week.  He was required to drive snow cabs used to transport people from the terminal car park to their lodge and transport supplies to the lodges. 

27      The plaintiff was then already working at local establishments doing maintenance during the summer months.  He was going to try to expand this business.  He decided to do the snow work, as outside maintenance was very limited in the winter.  The job with the defendant was permanent for the winter.[10]

[10]T32

28      The plaintiff intended to work until he was seventy.  If something better than his job with the defendant had come up, he would have taken it.  It had always been of financial importance for him to continue working.  It was important for him to get the subdivision done and that exercise was quite productive, having earned $220,000 to date.[11]

[11]T34

29      The plaintiff did not retire; he was doing the subdivision.  During that time, he also applied to the Albury Flying School to work as an observer, but the cost of driving to Albury every day was prohibitive.

30      The email the plaintiff sent to the defendant seeking work on 11 May 2009 referred to his retirement from Alpine Valley Real Estate, not retirement from the workforce.[12] 

[12]T35

31      In the first couple of days after he started work, on two occasions the plaintiff was asked to clear snow.  On the first day, after one and a half hours using a long-handled post hole shovel, the plaintiff experienced some aching in the back of his legs and buttocks.  A few days later, he was asked to shovel snow from a workshop roof, a job he had also not done before.  He was given a square mouth shovel with a wooden handle.  He did that task, adopting an awkward stance on a roof continuously for about two and a half to three hours.  During the course of that difficult task, he developed back pain (“the shovelling duties”).

32      The plaintiff tried to keep working over the next few days but he continued to experience low back pain radiating into his buttocks and legs. 

33      The plaintiff’s Claim for Compensation dated 10 July 2009 was accepted.

34      Pain in his back going down his buttocks and legs was the plaintiff’s predominant pain, although eventually he started to have middle back and neck symptoms, but his focus was on his back in the early days. 

35      The plaintiff’s partner rubbed Dencorub on his back but that did not improve his symptoms.  He attended his general practitioner, who prescribed anti-inflammatories.  The plaintiff took a couple of days off work and continued to work for several more days as the work was relatively light and there was only light snow. 

36      There was not much work generally and when the plaintiff arrived at work one morning, he and his co workers were informed they were not required, at least not on that day, so he went home.  When he woke the following morning, the plaintiff tried to get out of bed but he could not walk without assistance.

37      The plaintiff attended his doctor, who gave him crutches, and he was ultimately referred for investigations.  He took prescription medication and was referred for physiotherapy. 

38      Since that time, the plaintiff had not been able to return to work.

39      The plaintiff was eventually referred to orthopaedic surgeon, Mr Hillier, whom he saw in December 2009.  On a second visit, Mr Hillier performed a CT-guided facet joint injection which did not really help the plaintiff’s pain.

40      In any event, the plaintiff persisted with conservative treatment including physiotherapy and hydrotherapy from time to time.  He was taking anti-inflammatory medication and also Panadol for pain relief and using Endone when his pain was particularly bad.  

41      Over the next year or so, the plaintiff continued to suffer from unremitting pain in his back, going down to his legs, particularly the right.  He had also had symptoms in his middle back and neck.  Ultimately, he was referred to Mr Wallace, neurosurgeon, whom he saw in April 2011. 

42      Having undergone an MRI scan of his neck and thoracolumbar spine, the plaintiff was referred by Mr Wallace to another neurosurgeon, Professor Teddy, whom he saw in May 2011.  He suggested surgery.  However, the insurer refused to accept the plaintiff’s spinal problems were work related. 

43      Because Professor Teddy essentially treated private patients only, the plaintiff was unable to proceed with the surgery, although ultimately Mr Wallace referred him to another neurosurgeon, Mr Wong, who carried out a C3-5 decompressive laminectomy in August 2011 (“the neck surgery”).

44      Initially the neck surgery resulted in some improvement of neck symptoms but in the meantime, the plaintiff’s low back and referred pain down the lower limbs, particularly the right, continued unabated.  The pain was so bad he ended up having surgery, with Mr Wong performing an L4-5 decompressive laminectomy rhizolysis in November 2011 (“the first back operation”). 

45      There was a further cervical MRI scan in February 2012.  Thereafter, Mr Wong advised the plaintiff that for the time being his neck seemed okay, although if there was any deterioration he would recommend an anterior single level fusion.  He also advised monitoring of the thoracic spine in the future. 

46      As of May 2012, the plaintiff continued to suffer from unremitting and constant low back pain which depended on the particular activity he might be performing.  In particular, he also had referred pain down the right leg.  Mid back and neck pain persisted.

47      Mr Wong performed a fusion in December 2012 (“the second back operation”). 

48      In February 2014, the plaintiff deposed that this procedure had led to significant improvement in his back pain but his leg symptoms had worsened.  He continued to suffer intermittent pain in his back but it was nowhere near as severe as it was prior to the surgery.

49      The plaintiff deposed that, unfortunately, he continues to suffer leg pain which starts in his groin and travels into his right buttock and down the right leg and eventually goes down his left leg.  This occurs daily and generally worsens over the course of the day.

50      The plaintiff confirmed this situation in cross-examination.  When the leg pain becomes worse, it encapsulates his whole leg and foot and eventually it is severe burning, throbbing pain.[13]

[13]T16

51      The plaintiff agreed his description of “some intermittent back pain but nowhere near as severe as it was before surgery” in his recent affidavit was not totally correct.[14]

[14]T17

52      The first back surgery failed and put a lump in the plaintiff’s back.  The pain was then extreme and he needed a fusion.  The fusion corrected that deformity and stopped the severe localised pain but the nerve pain and the pain down the groin worsened after surgery.[15]

[15]T16

53      The plaintiff denied Dr Wong’s only advice to him was to hold off doing heavy physical work until the fusion was solid.  Dr Wong had told him to lead a quiet life.[16]  When the plaintiff last saw Dr Wong, he told him that there was partial completion of the fusion.  He told the plaintiff to be very careful when bending and twisting until sufficient fusion was established.  He also suggested the plaintiff take up physiotherapy but not to do heavier physiotherapy until the fusion healed.  He did not tell the plaintiff the only limit he was placing on him was not to do heavy lifting or strenuous physical activity.[17]

[16]T17

[17]T38

54      The plaintiff denied he told Dr Wong that his leg pain had improved, it was actually worse.[18]   He told Dr Wong of severe nerve pain.[19]

[18]T19

[19]T39

55      If the plaintiff does nothing, his back pain remains at a mild level.  It increases with activity.  If he has to do things around the house, he pays for it later.

56      At night, the plaintiff takes 150 milligrams of Lyrica and occasionally, if his back and leg symptoms are bad, he takes 75 milligrams in the morning.  On a very good evening, he can reduce the Lyrica to 75 milligrams at night.  In addition, the plaintiff takes OxyContin or Endone about twice a month, together with regular sleeping pills.  He can sleep throughout the night with that medication.  He generally wakes up feeling better in the morning but his condition deteriorates during the day. 

57      In addition to pain, the plaintiff has numbness and pins and needles, mainly in his right foot and occasionally his left.  His whole right leg goes numb if he does too much. 

58      The plaintiff has physiotherapy twice weekly from Greg McLennan in Mount Beauty which he supplements with home exercise.  The present treatment involves improving muscle tone and increasing strength.[20]  The treatment has progressed from extremely light weights to exercises with greater intensity. 

[20]T20

59      The two evenings after physiotherapy, the plaintiff does not sleep at all but he has to have the treatment.[21]

[21]T29

60      In his 2012 affidavit, the plaintiff deposed he had been considerably restricted in many of the activities he previously enjoyed over and above his ability to return to work.  He did not believe he would be fit for any work and at that time, his general practitioner, Dr Spiers in Mount Beauty, was certifying him totally unfit for work. 

61      The plaintiff had difficulty with prolonged standing and walking.  He was then able to walk one to three kilometres before it became uncomfortable.  He had put on about 10 kilograms because of his relative inactivity. 

62      The plaintiff deposed to his inability to go bushwalking, his inability to ride his motorbike for other than very short distances, his inability to ski and his problems cutting firewood and doing gardening.

63      Before the first back surgery, the plaintiff frequently had the sensation of his back giving way.  Since the fusion, that sensation had diminished but he still had the odd fall and twinges.  Because of symptoms and restricted range of movement, the plaintiff was restricted in his sporting activities with his young boys.

64      The plaintiff had had his gall bladder removed in about 2011 when it was mistakenly believed it was causing the symptoms which were indeed arising from the thoracic spine. 

65      In his recent affidavit sworn in February 2014, the plaintiff deposed he is trying to walk and swim to get a bit of fitness but even doing those lighter activities brings on leg symptoms and generally his pain worsens after he cools down after moderate activity.

66      The plaintiff has resumed physiotherapy twice a week.  He sees his general practitioner regularly for prescriptions.  He has applied for the plaintiff to see a psychologist for treatment of his depression but WorkCover will not approve it until the plaintiff attends a psychiatric assessment in April.

67      It is not possible for the plaintiff to return to his former work as a Real Estate Agent as the business is now run by its proprietor.  Further, he does not believe he would be capable of that work given how his injuries affect him daily. 

68      The plaintiff enjoyed working, as well as it being a financial imperative.  He found the social contact very important.  It gave him something to do and throughout his life he had always been very active and working and he used to get bored on holidays.  Given his children are still at school and the fact the plaintiff and his wife still have a mortgage, the plaintiff had to work until he was seventy.[22]

[22]T36

69      If the plaintiff was offered the Rolls Royce job today he could not do it as his leg/nerve pain would stop him functioning.  He could not simply take more medication because Lyrica had side effects such as jaw pain and chest pain.  Once he had to go to hospital for a suspected heart attack due to this chest pain. 

70      The plaintiff takes the maximum amount of Lyrica and if the pain gets really bad, he takes some OxyContin or Endone and lies down.  Endep did not work for him and made him sleepy.[23]

[23]T44

71      The more the plaintiff does the worse he feels so he does not allow himself to get into the situation where he requires more medication.[24]

[24]T15

72      The plaintiff disagreed the ideal job for him now would be one where he could walk, sit and stand at will.  These were all the worst things he could do.  He has to vary his posture but doing so hurts him at the same time.  Activity makes his back worse – “it is a catch 22.”[25]

[25]T15

73      Driving is very difficult.  It causes a lot of right buttock pain.  Occasionally the plaintiff drives to Bright, which takes half an hour.  He can drive longer distances but he “pays the price”.  Driving for longer then 45 minutes would cause a lot of pain. 

74      The plaintiff could walk up to 3 kilometres.[26]

[26]T22

75      When driving, almost straight away there is groin pain radiating down the plaintiff’s right leg until it becomes quite numb and extremely painful.  It helps to stop for a while and walk around and get some respite before the pain starts again.[27]

[27]T44

76      Whilst the plaintiff does have a wide work experience, he is unable to do anything.  He knows he cannot because of his severe pain.  With any real physical demands, the nerve pain starts and it is amplified by further movements and becomes quite extreme quite quickly.  The pain starts increasing from the time the plaintiff gets dressed.[28]

[28]T41

77      The plaintiff has not made any enquiries about potential retraining.  He agreed he had the intellectual capacity to undertake further training but it was “[his] head, not [his] body – the pain was too great”.[29]  Just getting to and from work each day would cause the plaintiff a completely sleepless night. 

[29]T42

Treaters

78      The plaintiff was referred by Dr Brown to Mr Hillier in relation to chronic lumbosacral spine pain.  Mr Hillier noted that the plaintiff had some impingement signs on the CT scan, particularly at L5-S1.  As of December 2009, he suspected the plaintiff was carrying a chronic strain of the facet joints and he suggested an injection.

79      Dr Wong reviewed the plaintiff in April 2013, noting he had been well since he had last seen him two months earlier.  The plaintiff continued to complain of some intermittent right leg pain.  However, that was more of a burning sensation as his low back pain and previously leg pain had largely resolved and he was taking the occasional Lyrica. 

80      Dr Wong noted a repeat CT scan demonstrated good positioning of the plaintiff’s lumbar implants.  There was, however, no solid fusion demonstrated as yet and he had organised another CT scan in three months’ time.

81      On review in July 2013, the plaintiff had reported further improvement.  His low back pain and leg pain had improved.  He was currently taking Lyrica for his residual pain.  A follow up CT scan had demonstrated good positioning of his spinal implant.  There were features of early bony fusion.  Another CT scan was organised for six months’ time.

82      In his report of October 2013, Dr Wong stated the plaintiff was not able to perform any heavy lifting or strenuous physical activities.  He was restricted in activities involving bending and twisting, constant and repetitive bending or twisting, lifting and carrying objects, performing manual labour and manual handling, prolonged sitting, standing and squatting. 

83      Dr Wong thought the plaintiff was suited for employment which did not require heavy lifting or strenuous physical activities. 

84      Dr Wong thought part time employment up to 20 hours per week would be suitable initially, leading to full time once the plaintiff was accustomed to the work environment.  In the future, chronic pain treatment, physiotherapy and hydrotherapy were required.  He thought it likely the plaintiff would suffer chronic back and leg pain in the future.

85      Physiotherapist, Mr McLennan from Kiewa Valley Sports and Spinal, reported in November 2013 that the plaintiff had a very limited capacity to work as a result of his injuries.  He thought the plaintiff would be capable of part time work at best and not on consecutive days, with 12 hours a week being the maximum.

Investigations

86      Dr Brown organised a CT scan of the plaintiff’s lumbosacral spine in July 2009.  It was reported widespread degenerative changes were seen and there was a large central disc prolapse at L4-5 causing significant central canal stenosis.

87      Following the May 2011 thoracolumbar spine MRI scan, it was reported there was mild central canal stenosis at L1-2 and L3-4, mild to moderate central canal stenosis at L4-5 and facet joint degenerative change without significant neural compromise seen at L5-S1.

88      It was reported the MRI scan of the lumbar spine of September 2012 showed bilateral L3-4, L4-5 and L5-S1 facet arthropathy.  Facet joint synovial cysts arose from the superior medial aspects of the L4-5 facets and contributed to significant narrowing of the left and right lateral recesses at L4-5, possibly compressing the descending L5 nerve roots and contributing to narrowing of the thecal sac.  There was prominent enhancing epidural tissue surrounding the thecal sac at that level consistent with post-surgical granulation tissue-scar. 

89      Dr Wong organised a CT scan of the plaintiff’s lumbar spine in April 2013.  It was reported lumbar vertebra were normally aligned.  There was a trans-pedicular screw and plate spinal fusion at L4-5 with normal alignment.  The screws were in a satisfactory position, there was no loosening or lysis surrounding the screws which were maintained within the vertebral bodies.  There was an associated inter-body cage at L4-5 with preservation of disc space.  There was a wide posterior laminectomy at level L4-5.  There was no obvious focal disc prolapse or generalised disc bulge.

90      Dr Wong reported that a follow up CT scan of the plaintiff’s lumbar spine in July 2013 demonstrated good positioning of the spinal implants.  There were features of early bony fusion.

Medico-legal evidence

91      I do not propose to deal with medico-legal examinations which pre-date the fusion in December 2012 when considering the plaintiff’s present condition and his capacity for work.

92      Mr Ian Kelman, orthopaedic surgeon, examined the plaintiff in November 2013.

93      Mr Kelman diagnosed moderate canal stenosis at L4-5 treated surgically with decompression.  At a second operative procedure by posterior spinal fusion, the diagnosis was lumbar spine facet joint degeneration at L4-5 and L5-S1.

94      Mr Kelman considered, as a result of the work duties, the plaintiff had suffered permanent impairment and loss of function of his lumbar spine.  Whereas previously he was able to carry out a heavy physical job of driving a snow cab and working on the snowfield, that was no longer possible. 

95      The condition had also a resultant impairment in the plaintiff’s ability to carry out some personal care tasks, housework and gardening.

96      Mr Kelman thought, in the long term, the plaintiff would have restricted bending and twisting, together with repetitive activities of bending and twisting.  He would have difficulty with lifting heavy objects, or performing any manual labour.  He was unable to sit or stand for long periods; walking would be limited; squatting would not be possible; getting in and out of vehicles would be difficult and driving a vehicle would be limited to no more than one hour.  The plaintiff would be unable to negotiate ladders and he would have difficulty with stairs.

97      Mr Kelman considered this incapacity would prevent the plaintiff from carrying out any physical occupation.  He may, however, be able to carry out sedentary work which did not require bending, lifting and carrying.  With a suitable occupation, he considered the plaintiff would be able to carry out full time employment in a sedentary role.

98      The only further treatment Mr Kelman thought would be appropriate would be a physical rehabilitation program to commence about a year after surgery.

99      Mr Kelman thought the prognosis remained positive for a reduction in pain sufficient to allow the plaintiff to participate in some form of sedentary employment.  He thought the plaintiff would not be able to participate in any physical activities or any activities which required driving, bending, lifting or carrying.

100     Mr Klug, neurosurgeon, examined the plaintiff in November 2013.

101     Mr Klug concluded, as a result of the incident, the plaintiff sustained an injury to the low back involving protrusion of an intervertebral disc which was subsequently responsible for the emergence of significant symptoms related to the back and lower limbs.  He noted it appeared initial surgery did lead to some improvement but that was followed by further deterioration leading to the need for further surgery. 

102     Mr Klug noted, although the most recent operation appeared to be technically sound, the plaintiff still had some symptoms and it was possible during the next year there could be some further improvement related to his last surgery. 

103     Mr Klug believed the plaintiff had some permanent restrictions in regard to social, domestic and recreational activities of the type that would put undue strain on his back. 

104     Mr Klug thought the ongoing condition would restrict activities involving bending and twisting and those involving constant and repetitive bending or twisting.  There would also be some restriction with regard to the lifting and carrying of heavy objects, particularly of a repetitive nature. 

105     There would be some restriction with regard to manual labour or manual handling.  Prolonged sitting and standing were likely to aggravate the condition, as would be lengthy periods of walking and/or attempted running. 

106     Mr Klug considered the plaintiff’s ability to squat would be somewhat restricted and he would have to have a slow ability moving in and out of a vehicle.  He would be able to drive but possibly sitting in a car for lengthy periods would aggravate his complaints and the ongoing symptoms with the right lower limb would have some detrimental effect on his ability to use steps and ladders. 

107     Mr Klug thought this was the most likely scenario that these disabilities would persist indefinitely although it was possible that following the last operation, there could be some further improvement.

108     Mr Klug did not think the plaintiff was fit for pre-injury employment.  He thought it was possible the plaintiff could undertake some activities of a non- physically demanding nature, such as working at bench-top height where there was some flexibility in the workplace or where he could alternatively sit and stand.  Suitable employment, given the plaintiff’s age, education and work background would be difficult with those restrictions.

109     If the plaintiff undertook suitable employment consistent with his injury, Mr Klug believed it would be appropriate that it be performed in a part time capacity, at least at first, and he thought that a half time commitment would be the most likely maximum.

110     Mr Klug thought it reasonable the plaintiff continue to take painkilling medication and he try to maintain maximal mobility by regular walking and a home directed exercise program.  He did not see the need at the moment for future surgery.

111     In view of the plaintiff’s persisting symptoms after surgery, albeit with the possibility for further improvement, Mr Klug would have to consider the plaintiff’s prognosis would be considered extremely guarded.  He thought it more probable than not that these current systems would persist with some waxing and waning indefinitely.

The Defendant’s medical evidence

112     The plaintiff was examined by orthopaedic surgeon, Mr Roy Carey, in October 2013. 

113     The plaintiff told Mr Carey he still had constant low back pain which was not really bad but varied in intensity, depending on activity.  He had many feelings in his right leg ranging from pain, tingling, numbness and burning which went from the right groin and inner thigh down to the inner leg to all the toes.  Left leg symptoms were intermittent.

114     On examination, the plaintiff stood with a loss of lumbar lordosis and indeed a slight lumbar kyphosis.  He could touch his toes.  Extension and other movements were significantly restricted by low back discomfort.  Reflexes of the knee were extremely brisk but even with reinforcement, Mr Carey could not obtain ankle jerks.  He was sure the left plantar response was down-going but he thought the right was equivocal. 

115     Mr Carey had available all investigations.

116     Mr Carey thought the plaintiff had long-term multilevel spondylosis (cervical, thoracic and lumbar).  He had obviously sustained aggravation to the lumbar spondylosis which had been treated surgically.  That surgical treatment was still was not complete and the plaintiff must be regarded as not stable as he is not twelve months post operative and he had not reached one year post operatively and was still to undergo assessment with Mr Wong in January 2014.

117     Mr Carey agreed with Mr Wallace that the findings at the cervical level were coincidental and there was no neck injury related to the work duties.  He believed the cervical and thoracic complaints were constitutional and/or degenerative, noting that that seemed to be in agreement with multiple opinions expressed.

118     Mr Carey thought the plaintiff remained largely asymptomatic as far as his neck and upper limbs were concerned.  The plaintiff had developed some thoracic symptoms at the time of his injury, in addition to the major lumbosacral component for which he has had two operations.

119     Mr Carey could detect no functional component or psychological reaction.

120     Mr Carey noted the plaintiff had been instructed not to lift substantial weights, although to his understanding, with no weight level.  As to repetition, the plaintiff could reasonably repeat with the upper limbs but as to his thoracolumbar and lumbosacral area pain, he had markedly reduced movement and endurance as far as that was concerned. 

121     As to duration, Mr Carey would consider, at best, the plaintiff would have a part time light work back and would never be fit for any significant physical duties at any time into the foreseeable future.

Overview

122     There is no dispute the plaintiff suffered an injury to the lumbar spine as a result of his performance of the work duties. 

123     The plaintiff has had a failed laminectomy, which required a further procedure in that regard, together with a fusion, which was a very substantial surgical procedure.[30]

[30]T75

124     Liability was accepted for the plaintiff’s claim and he continues in receipt of weekly payments of compensation. 

125     As pain and suffering has been conceded, I am only required to consider the narrative test and the specific provisions relating to loss of earning capacity and I do not propose to comment on the other consequences of the plaintiff’s lumbar impairment.

126     It was submitted by counsel for the defendant that there was not a serious loss of earning capacity on the narrative test.

Credit

127     I found the plaintiff to be a truthful, credible witness and I accept his description of his ongoing pain and restriction following significant back surgery.

128     I do not accept, as counsel for the defendant submitted, that the plaintiff exaggerated his symptoms.  Whilst there was some inconsistency between the plaintiff’s description of his pain in the witnessbox and that deposed to in his second affidavit, he gave a credible explanation of this difference, confirming the particular pain following the first back surgery had resolved but that he still had significant ongoing problems in his back and particularly in his leg and groin.

129     I do not accept the submission that the plaintiff was prepared to do anything about his work future to suit his case.  I accept that he intended to work to at least the age of sixty eight when his youngest child had finished school, particularly when the plaintiff still has mortgage obligations. 

130     I accept that the plaintiff had a very strong work ethic with work at all times being an integral part of his life, including the two years when he actively undertook the tasks related to the subdivision.

131     I do not accept that the plaintiff had effectively not worked for three years sitting out doing recreational activities before the incident, as counsel for the defendant submitted.  The subdivision was an income producing venture resulting in a capital gain to date of $220,000.[31]

[31]T73

132     I accept the plaintiff continues to suffer very significant nerve pain from his back into his right groin and down his leg.  As he described, that pain increases from the time he gets up in the morning, particularly with any activity.  Just moving around does not assist his pain to any real extent and at times increases it. 

133     The plaintiff’s pain requires a large amount of medication.  He takes 150 milligrams of Lyrica in the morning and 75 milligrams at night, plus Temtabs to help him sleep.  He has OxyContin when the pain is worse.[32]

[32]T74

134     The plaintiff is restricted in his ability to sit or stand for prolonged periods.  He cannot bend or lift to any extent.

135     As mentioned earlier, I accept the plaintiff intended to work until his late sixties.  He did not retire from the workforce when he left real estate work; he simply retired from that job and had other work aspirations, as evidenced by his consideration of work as a pilot in Albury.[33] Further, the plaintiff had also commenced a maintenance business at the time he obtained seasonal work with the defendant.

[33]T51

136     Effectively, as a result of his lumbar condition, the plaintiff’s capacity to engage in any work, whether physical or sedentary, is extremely limited.

137     There is no evidence of any ongoing problems with the cervical spine contributing to the plaintiff’s present incapacity for employment.[34]

[34]T56

138     In these circumstances, the narrative test is satisfied.

Loss of earning capacity

139     Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –

(a)    at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also

(b)    after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).

140     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. 

141     The former must be calculated by reference to the six-year period specified in s134AB(38)(f).

142     “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.

143     It is to be calculated by reference to that part of the period within three years before and three years after injury as most fairly reflects the worker’s earning capacity.

144     The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein – see Barwon Spinners & Ors v Podolak.  [35]

[35](supra) at paragraph [70]

145     Submissions were made by both counsel in this regard.

146     Counsel for the plaintiff submitted, but for his injury, the plaintiff would have remained in permanent employment with the defendant or someone else, earning around $600 a week - $30,000 a year or more in other employment, given his impressive work history.[36]

[36]T51

147     Counsel for the defendant submitted there was not enough material before the Court to determine a “without injury” earnings figure, noting that the plaintiff in 2009 earned just $1,128.00 working with the defendant and he earned under $2,000 in his other job for three months.[37] 

[37]T53; T55

148     I accept that the figure suggested by counsel for the plaintiff most accurately reflects the plaintiff’s earning capacity but for injury.

149     In my view, the plaintiff now has a very limited capacity for light sedentary work and, accordingly, he does not have the capacity to earn in excess of 60 per cent of this figure.

150     Clearly, the plaintiff does not have a capacity for physical work, as all doctors have opined.

151     Whilst Mr Wong was of this view when he last reported in October 2013, however, he also imposed a number of significant restrictions, with the plaintiff being precluded from or restricted in activities involving bending and twisting, constant and repetitive bending or twisting, manual labour and manual handling, prolonged sitting and standing and squatting.

152     Given the plaintiff’s evidence of his pain and restriction and medication regime, in my view, Mr Wong was somewhat optimistic as to the plaintiff’s ability to return initially to part-time employment of twenty hours per week, leading to full-time hours, particularly when he thought the plaintiff’s incapacity was permanent.  I take a same view of Mr Kelman’s opinion to a similar effect.

153     Mr Wong’s optimism was not shared by Mr Klug who put considerable restrictions on any work the plaintiff could undertake and considered that a half time commitment would be the most likely maximum.

154     Mr McLennan, physiotherapist, thought at best the plaintiff could work was twelve hours a week.[38]

[38]T80

155     I accept the plaintiff’s explanation as to the difficulties he would have working as a Real Estate Agent.  Further, there is no work available at the real estate firm where he previously worked, because it has been sold.  I also accept that real estate work is more than driving.[39]

[39]T75

156     I do not accept the plaintiff could do a sedentary office-type job, although he has extensive managerial and deskwork experience.  He would have difficulty with prolonged sitting and standing and travelling to and from work would be difficult due to his level of pain and need for medication, I believe he would be an unreliable employee who would have difficulty attending work on more than a very part-time basis on days interspersed throughout the week.

157     In those circumstances, I am satisfied the plaintiff has suffered the requisite loss of earning capacity of forty per cent.

158     I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

159     As counsel for the defendant submitted, the plaintiff is a very intelligent man, as was reflected not only in his work history but the fact he was headhunted and had changed jobs pretty seamlessly.  In such circumstances, retraining would not alter the plaintiff’s capacity for suitable employment and, in my view, he cannot be criticised for not taking any steps in this regard. 

160     In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more.  As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g). 

161     Counsel for the defendant submitted it was not open to say that the plaintiff’s condition had stabilised given some reasonably confident recent assessments of work capacity.[40] However, Mr Wong, Mr Kelman and Mr Klug all considered it was likely the plaintiff’s symptoms and resultant restrictions would continue into the foreseeable future.

[40]T49

162     I am satisfied in these circumstances that the plaintiff’s lumbar impairment is permanent.

163     Accordingly, I grant the plaintiff leave to bring proceedings for damages for loss of earning capacity, pain and suffering having been conceded.