Stone v Victorian WorkCover Authority
[2020] VCC 1406
•9 September 2020
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-03430
| KENNETH ARTHUR STONE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 25 and 26 August 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 9 September 2020 | |
CASE MAY BE CITED AS: | Stone v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1406 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lumbar spine – whether pain and suffering consequences were “at least very considerable” – whether plaintiff had established a 40 per cent loss of earning capacity – suitable employment.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr M Fogarty | Slater & Gordon |
| For the Defendant | Mr A Moulds QC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
1 On or about 31 May 2012, Kenneth Stone alleges that he suffered an injury to his low back in the course of his employment with Wentworth Furniture Company Pty Ltd (“Wentworth”) as a consequence of heavy lifting.
2 Mr Stone seeks to commence a proceeding claiming damages in respect of the injuries suffered by him on that occasion. His right to do so is governed by the provisions of Part 7, Division 2, of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
3 In order to obtain such leave, the Court must firstly be satisfied, on the balance of probabilities, that he has suffered a “serious injury” as defined in the Act.
4 The term “serious injury” is defined, insofar as it is relevant in this application, as:
“(a) permanent serious impairment or loss of a body function”[1]
[1]Section 325(1) of the Act
5 The definition does not specifically refer to any physiological injury as such, but to an impairment or loss of body function.
6 The body function relied upon in this application is that of Mr Stone’s lumbar spine.
7 The term “permanent” is to be interpreted as meaning “likely to persist into the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18]-[19]
8 With regard to pain and suffering damages, the impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, “fairly described as being more than significant or marked, and as being at least very considerable”.[3]
[3]Section 325(2) of the Act
9 In this application, the parties are in dispute as to whether Mr Stone suffered a “serious injury” as defined, such as to enable him to commence a proceeding claiming pain and suffering damages.
10 With regard to pecuniary loss damages, leave is not to be granted by the Court to Mr Stone unless he has established that, in addition to the requirements of s325(2)(b) of the Act, he has suffered, as at the date of the hearing of his application, a loss of earning capacity of 40 per cent or more, when calculated in accordance with the provisions of s325(2)(e), (f) and (g).
11 The defendant denies that Mr Stone has suffered such a loss of earning capacity.
Background
12 Mr Stone is aged fifty-nine. He was born and raised in Melbourne. He left high school when aged fourteen.
13 After leaving school, Mr Stone was employed in several relatively short-term jobs, generally involving heavy manual labour.
14 Mr Stone swore three affidavits in support of his application. In paragraphs 6 and 7 of the first affidavit sworn on 19 March 2019, Mr Stone, presumably to demonstrate to the Court that he was “putting his cards on the table”, deposed that:
·He had, in the past, been involved in alcohol and drugs.
·He had been involved in crime, including stealing cars, shoplifting and assault, and had been in and out of prison from around the age of seventeen.
·In 1985, when he was aged about twenty-four, he and his brother were convicted of murdering a woman. He had held the woman down while his brother punched her unconscious and then stabbed her.
15 Mr Stone was sentenced to life imprisonment for that murder, with a minimum non-parole period of twenty-two years.
16 Senior Counsel initially submitted that Mr Stone’s criminal history had no relevance at all to this application and sought to prevent any cross-examination about it. He later relied on that history in his submissions concerning loss of earnings, to which I will return later in these reasons.
17 In prison, Mr Stone qualified as a cabinetmaker and completed an apprenticeship in that field.
18 In 2008, Mr Stone was released from prison on parole. Upon his release, he found work as a food packer, in a plastic recycling business and as a tree lopper. He later worked with Wentworth, operating various types of woodwork machines.
19 Mr Stone’s work generally involved relatively heavy manual labour.
20 Mr Stone commenced employment with Wentworth in November 2011.
The accident
21 About six months later, on 31 May 2012, Mr Stone suffered back pain whilst lifting a heavy piece of timber onto a machine. He deposed that he was unable to move due to the severity of his pain, and a co-worker came to his assistance. Shortly after, he was transported by ambulance to the Northern Hospital, from where he was discharged later that day.
Pre-accident low back pain
22 Dr Burgin’s clinical notes contain a reference to “2007 Back pain - Lumbar”.
23 Further, Dr Burgin’s notes disclose that on 11 April 2011, about one year prior to the subject accident, Mr Stone consulted him in relation to low back pain. Dr Burgin noted “Chronuic [sic] low back pain”. He referred him for a CT scan of his lumbar spine.
24 Dr Burgin’s notes disclose that he consulted with Mr Stone on 13 April 2011 to review his CT scan taken two days earlier; and on 15 April 2011 to discuss results and to issue a medical certificate.
25 Between May 2011 and May 2012, he saw Dr Burgin about unrelated matters but made no further complaint about his back.
Post-accident treatment
26 About four days after the subject accident, in early June 2012, Mr Stone consulted Dr Burgin, who had been his general practitioner for some years. He saw Dr Burgin on a large number of occasions during the second half of 2012 in relation to his low back.
27 In early July 2012, Mr Stone was treated with physiotherapy at Epping Physiotherapy and La Trobe University. He ceased physiotherapy because he was experiencing no benefit from it. He complained of acute low back pain on the right side and down the right leg.
28 In late June 2012, Mr Stone returned to work with Wentworth on light duties. He considered most of the light work that he was supposed to be doing was inappropriate, in that it required him to bend over constantly, which caused back pain. He worked limited hours initially but built this up to full-time hours over time.
29 By July 2012, his physiotherapist, Ms McGrath, reported to Dr Burgin that Mr Stone was doing “really well”.[4] In August 2012, she reported to Dr Burgin that “He has had only minor pain and is coping well at work”.[5]
[4]PCB 25
[5]PCB 27
30 Although Ms McGrath reported that he had experienced an exacerbating incident on 12 July 2012, this appears to have been short lived. On 20 July 2012, Ms McGrath reported to Dr Burgin that:
“Ken is doing extremely well. He has good range of painfree motion of the lumbar spine. He has some concerns that his workplace is pushing to beyond restrictions. I feel that he is able to tolerate a minor increase in restrictions.”[6]
[6]PCB 26
31 In September 2012, Dr Burgin referred Mr Stone for a CT scan of his low back, which was carried out on 13 September 2012.
32 Evidence of treatment received by Mr Stone after 2012 is unclear. He saw Dr Burgin only rarely, although I take into account that at some point around 2014, he spent a year in prison following the revocation of his parole.
33 In September 2013, his employment was terminated by Wentworth. There was no evidence as to the circumstances in which that occurred. Mr Stone provided no explanation in his three affidavits filed in support of his application. In oral evidence he was vague, saying he could not recall the circumstances. He has not returned to any form of work since September 2013.
34 At some point in 2013, Mr Stone was arrested and charged with attempted car theft. His parole relating to his murder sentence was revoked, and he was again remanded in custody. He was, in due course, convicted of the car offence. He successfully appealed that conviction. However, it took about one year for the appeal to be heard, during which he remained in custody. He was released following the appeal, which I presume would have been heard in about 2014.
35 In about 2015, Mr Stone moved to Heathcote, where he has since lived. In about 2016, he unsuccessfully applied for a disability pension. He has since been in receipt of Centrelink benefits.
36 In July 2016, Mr Stone was involved in a head-on motor vehicle collision. He suffered pain to his head and right shoulder. I accept that he has made a full recovery from those injuries.
37 In September 2017, Mr Stone was referred for a further CT scan of his lumbar spine.
Three CT scans
38 The pre-accident scan of April 2011 was, insofar as relevant, reported as showing:
“At L4-5 there is mild circumferential disc bulging, more prominently postero-laterally to the right than the left. The right L4 nerve root appears slightly hyperdense, suggesting irritation. Is this compatible clinically? Canal diameter is satisfactory. There is mild facet osteoarthritis. Bilateral L4 pars defects are noted.
At L5-S1 there is a minor degree of circumferential disc bulging. No focal herniation, nerve root impingement or canal or foraminal stenosis.
Opinion:
Bilateral L4 pars defects and mild L4-5 disc bulging, more so to the right.”[7]
[7]Defendant’s Court Book (“DCB”) 94
39 The first post-accident scan of September 2012 was reported by the radiologist, insofar as relevant, as follows:
“At L4-5 there is a diffuse annular bulge of the L4-5 disc slightly more prominently to the right posterolaterally and there may be some minimal impingement upon the exiting right L4 nerve root but this appearance is not significantly altered compared with the examination of April 2011. There are again moderate facet joint degenerative changes bilaterally at this level again unchanged.
At the lumbosacral level the disc is intact. There are minimal facet joint degenerative changes. No neural compression or entrapment is evident.
There are again noted to be bilateral L4 pars inter-articularis defects but appearances about this is also unchanged.”[8]
[8]DCB 94
40 A third CT scan was performed in September 2017 and reported as showing virtually the same findings.
41 I am satisfied that there were no significant radiological changes between April 2011 (about a year pre-accident) and September 2012 (about four months after the accident), or between September 2012 and September 2017.
Medical evidence
42 The plaintiff submits that, in the accident occurring on 31 May 2012, he suffered an injury to his lumbar spine in the form of an aggravation of pre-existing “degenerative disease/spondylolisthesis”.
43 It is conceded by the plaintiff that he did have degenerative disease/ spondylolisthesis before the subject accident.
44 The defendant submits that a number of medical reports which were tendered in evidence on behalf of the plaintiff are unhelpful because a number of doctors were not shown or advised of the pre-accident symptoms and radiology of April 2011.
45 Further, the defendant submits that the opinions of a number of doctors are of little assistance because they were not shown details of surveillance reports and films of Mr Stone taken in May and June 2019.
46 Where a plaintiff suffers from a pre-existing condition which has been aggravated by a later compensable workplace accident, it is the degree of aggravation or exacerbation that must be examined by the Court in order to determine whether the injury amounts to a “serious injury”. It is not enough to establish that the current consequences of the injury amount to a “serious injury” as defined. It is the extent of aggravation or exacerbation that must amount to a serious injury.[9] A comparison must be made of the pre-accident state of Mr Stone’s lumbar spine and the current state of it.
[9]Petkovski v Galletti [1994] 1 VR 436
Dr Burgin
47 In a return-to-work questionnaire dated 20 August 2012, Dr Burgin noted that Mr Stone was unable to forward bend, twist, squat or push and pull. He indicated that Mr Stone was unable to stand, sit and walk frequently. He prescribed a maximum weight for lifting or handling at 5 kilograms. He certified that Mr Stone would be fit for modified/alternate duties with the pre-injury employer from 2 July.
48 In a report dated 13 June 2018, Dr Burgin stated:
“In summary, this 51-year-old male with known lu[m]bar spine disease aggravated his spine [on] 31/5/2012 lifting timber.
He proceeded to make a slow recovery over many months.
He eventually stopped working about September 2013.”[10]
[10]Plaintiff’s Court Book (“PCB”) 32
49 Dr Burgin provided no opinion as to the extent to which Mr Stones’ pre-existing lumbar condition had been aggravated by the subject accident or as to Mr Stone’s current condition.
50 There is nothing in Dr Burgin’s clinical notes or reports to indicate that he referred Mr Stone to any specialist for opinion or treatment.
51 Whilst Dr Burgin’s clinical notes record a prescription for Codalgin Forte in 2013, there is no record of any prescription for Panadeine Forte.
Dr Quach
52 The plaintiff’s current general practitioner, Dr Son Quach, reported on 12 December 2019 that Mr Stone has severe lower back pains, the result of a work injury ten years before, that he required a narcotic patch for his pain and his daily activities were severely affected by his condition. Mr Stone elected not to proceed with the patch treatment.
53 In neither of Dr Quach’s reports does she opine as to a diagnosis of injury. There is nothing in her reports to indicate that she referred him to any specialist for opinion or treatment. In her January 2020 report, she notes under the heading “current medication” – “None recorded”.
54 Dr Quach aside, Mr Stone seems only to have seen number of medico-legal practitioners in the post-accident period.
Dr Kenna
55 Dr Kenna, consultant in musculoskeletal pain management, examined Mr Stone on a medico-legal basis in October 2012, a little less than five months after the accident. Dr Kenna was aware of the April 2011 and September 2012 radiology. He considered that there were no substantive changes between them. Dr Kenna considered that Mr Stone had suffered a soft-tissue injury to his lower back consisting of underlying structural anomalies which had been longstanding, consisting of bilateral L4 Pars interarticularis defect and bulging of the L4-L5 level with, no doubt, intermittent irritation of the right L4 nerve root. He considered that there had been substantive improvement, but that he was prone to exacerbation due to the underlying structural weakness, which appears to at least go back symptomatically to 2000, but in view of his age, probably substantially longer. Hence, he said, while the symptoms have improved, the underlying structural weaknesses remained unchanged and he was prone to further exacerbation.
Associate Professor Buzzard
56 Associate Professor Anthony Buzzard, general surgeon specialising in spine and upper and lower limbs, examined the plaintiff in October 2018. The plaintiff told him of continuous pain in his lower back. He stated that he was taking no medication for his back and receiving no treatment.
57 Mr Stone told Associate Professor Buzzard that he had a back problem when he was about fourteen years old (in about 1976). He made no reference to any other more recent pre-accident lumbar problems.
58 On examination, Associate Professor Buzzard noted that Mr Stone had a full range of movement of the lumbosacral spine in all parameters. He also noted very heavy callusing in the palms of both hands. I interpret this as a finding that Mr Stone had been performing a good deal of physical activity with his hands, at least in the period leading up to that examination.
59 Associate Professor Buzzard appears to have been provided with Dr Kenna’s report of 24 October 2012 and some clinical notes of Dr Burgin, which refer to the 2011 complaints of back pain.
60 His diagnosis was that Mr Stone suffered an aggravation of pre-existing lower back pathology, as was evidenced by documentation sent to him predating May 2012.
Associate Professor Love
61 In May 2019, Associate Professor Love, orthopaedic surgeon, reported that Mr Stone was, at that time, complaining of pain in his right buttock, with some numbness in the left lower limb, particularly in the groin area. Associate Professor Love was shown the CT scan of 2017, but was not provided with the 2011 pre-accident scan. He considered that Mr Stone had chronic lower back pain as a consequence of an aggravation of degenerative changes dating back to the accident in question. He considered that Mr Stone had a capacity for some suitable light work that did not involve prolonged standing, repeated bending and lifting or heavy pushing or pulling. He noted that Mr Stone had sought employment but had been unsuccessful. What employment he had sought was not noted.
Dr Akil
62 Dr Hazem Akil, neurosurgeon, examined Mr Stone in November 2019.
63 I note that Mr Stone denied to him any past medical history of significance. He was provided with reports of CT scans but did not see the images. He does not refer to the April 2011 medical attendances or the CT scan taken in that month. I infer that he was not provided with images or the radiological report relating to the April 2011 scan.
64 Mr Stone told him that he did not like to take medication, but took Panadol and sometimes Panadeine Forte, when the pain was unbearable. Mr Akil considered that Mr Stone had suffered an aggravation of a lumbar spondylosis. He considered that the aggravation of his lumbar spondylosis, and in particular the presence of a spondylolisthesis Type 1, as well as the bilateral pars defect at L4-5 and L5-S1, likely happened because of the type of activities he performed in his previous job, and that it was plausible that the last incident is a major contributing feature. He considered that Mr Stone’s prognosis was poor.
65 I note that Mr Stone told Mr Akil that he could not stand or sit for longer than fifteen to twenty minutes. Mr Akil suggested that a bone scan and an MRI scan be undertaken. There was no evidence that such investigations had been pursued.
Dr Rowe
66 Dr James Rowe, specialist occupational physician, examined the plaintiff in December 2019.
67 Dr Rowe was provided with the CT scans of September 2012 and September 2017. He was not provided with the CT scan of April 2011, for reasons not explained.
68 When asked about his previous history of back pain, Mr Stone told Dr Rowe that he had a previous minor onset of lower back pain when he was about fourteen years old, which resolved, and that he had no other history of back pain. Dr Rowe was advised by Mr Stone that his pain was aggravated by activities such as walking, gardening, driving and during sexual activity. Mr Stone told Dr Rowe that he took occasional Panadol for pain. He did not mention the use of Panadeine Forte to him. He told Dr Rowe that he was able to drive, but avoids it if possible, as it aggravates his pain.
69 Dr Rowe considered that Mr Stone had some capacity for employment, but could not return to his pre-injury employment as a machine operator because of the heavy lifting and manoeuvring involved. He considered that Mr Stone was fit for alternative employment, perhaps on a part-time basis, with restrictions on lifting, carrying, bending, pushing and pulling. He reported that Mr Stone should be referred for an MRI scan of his lower back or possibly a repeat CT scan. There was no evidence that either scan had been arranged since.
70 Dr Rowe examined Mr Stone again in April 2020 and reported that he remained of the view that Mr Stone was fit for alternative, part-time work, upwards of about twenty hours per week, and that this included the possibility of employment as a petrol station console operator or as a process worker. He considered that he should have a lifting limit of 5 kilograms and restrictions on activities involving bending. He considered that he was not fit to return to his pre-accident job or anything similar. Dr Rowe had seen reports from Associate Professor Love, Dr Le Leu, and the first and second reports of Dr Doig, and considered that his opinions do not differ to those proffered by those doctors. He made no mention of seeing the surveillance film tendered and I conclude that he did not see the film.
Medical Panel
71 Mr Stone was examined by a Medical Panel on 12 December 2018, some six-and-a-half years after the accident in question. Mr Stone had told the Panel that he had had two previous episodes of lower back pain in the past – in 1999 and in 2011. He described them as being relatively minor and that he had not taken time off work.
72 Mr Stone told the Panel that he has pain as being like a dull ache with occasional sharp twinges “like being hit by a stick”[11] and that it did not radiate into the right buttock or the right leg. He advised the Panel that his pain was also aggravated by prolonged sitting for more than thirty minutes, including sitting in a car and driving, during which he needs to stop every thirty minutes or so to get out and stretch and move around.
[11]DCB 25
73 Mr Stone told the Panel that he was restricted from doing certain activities, such as riding his motorbike and occasionally had difficulties when fishing from a boat if he needed to lean over the side. He also told them that he had some difficulty with sexual activity due to back pain.
74 Mr Stone told the Panel that at the time of their examination in December 2018, he took “the occasional paracetamol tablet for pain”.[12] He applied local heat in the form of a hot water bottle at times.
[12]DCB 25
75 Members of the Panel examined him and found that he walked with a normal gait, was able to stand on his toes and heels, had mild localised tenderness over the lower lumbar spine and right paravertebral region from L4 to S1, had mild muscle spasm in the muscles from L4 to S1, he had mildly limited flexion while extension was markedly limited and he had limited rotation and limited lateral flexion. There was no clinical evidence of any lumbar-spine-related radiculopathy.
76 The Panel was not provided with the April 2011 CT scan or radiologist’s report. The Panel accepted Mr Stone’s statement that he had been asymptomatic regarding his lower back for some months prior to May 2012.
77 The Panel concluded that Mr Stone was suffering from aggravation of lumbar spine osteoarthritis without clinical evidence of radiculopathy. They thought that his condition had substantially stabilised, and it was unlikely to remit with or without medical treatment. It was stable and permanent.
Dr Doig
78 Dr Graeme Doig, orthopaedic surgeon, examined Mr Stone in June 2019, and April 2020. In June 2019, Mr Stone told Dr Doig that:
·He could only drive for short distances.
·He had been unable to return to running.
·He had been unable to return to playing social Australian Rules Football [which, given his age, would hardly be surprising].
79 On examination, he was noted by Mr Doig to be able to forward flex to his lower shins with reduced lateral flexion to the left and 10 degrees of spinal extension.[13] There was no evidence of radiculopathy. Dr Doig’s diagnosis at that time was of an aggravation of pre-existing spondylolysis at L4, with facet joint degeneration. He provided a similar opinion in his report of April 2020.
[13]DCB 34
80 In order for Mr Stone to succeed in his application to bring a claim for pain and suffering damages, I must be satisfied, on the balance of probabilities, that his pain and suffering consequences are currently, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being “more than significant or marked” and as being “at least very considerable”.
81 Having considered all of the evidence, and in particular noting the various inconsistent histories given by Mr Stone to those medical practitioners who examined him at various times, and having viewed the surveillance reports and films referred to above, I am satisfied that he suffered an aggravation of pre-existing degenerative changes in his lumbar spine. However, I am not satisfied that the current consequences of that aggravation for him could be fairly described as being “more than significant or marked” and as being “at least very considerable”.
82 I have come to that conclusion on the basis of:
· the radiological findings before and after the subject accident which show no changes between the pre and post-accident CT scans of 2011, 2012 and 2017;
· the films tendered, which I consider show Mr Stone to move in an unrestricted and in an apparently pain-free manner, at odds with his claimed restrictions;
· Mr Stone’s description of the consequences of his injury as provided to various medical practitioners which I consider are inconsistent;
· Mr Stone’s advice to the various doctors as to medication taken by him for his injury. These were inconsistent. I am not satisfied that he has been treated with strong pain medication in recent times;
· The paucity of treatment provided to him including that neither of his general practitioners since 2012 have referred him to any specialist for treatment or opinion.
83 As regards to the films, I note the following:
·Mr Stone had driven a considerable distance from his home in Heathcote to Campbellfield (in northern Melbourne), where he attended to the purchase of items, and then drove on to Sunbury. At Sunbury, he performed mechanical work on a motor vehicle belonging to his step brother. In driving his car from his home in Heathcote to Sunbury via Campbellfield, he had been travelling, with only a short break, for just under two hours. When he alighted his vehicle on each occasion, he did so in a free and unrestricted manner. He was not guarded or cautious in the manner in which he alighted or entered his car. When he walked, he walked freely at a good pace, and without any sign of stiffness, notwithstanding that he had been in the motor vehicle for a considerable time.
·When he reached Sunbury, he arrived carrying a tail shaft, which I accept was relatively light. He was able to jack the vehicle up, assume positions kneeling, lying on his back and side under his step brother’s motor vehicle, and showed no signs of discomfort or limitation of movement.
·He was able to bend deeply from the waist. He bent forward some 90 degrees to the point where his head was level with his hips and maintained that position for some time. He displayed no limitation, pain or caution. I do not consider that this was consistent with him telling Dr Doig on 30 May 2019 that he was able to “carefully” flex forward. That examination took place in between the dates of the films taken of the plaintiff.
·He then returned home from Sunbury to Heathcote.
·On the following day, 13 May 2019, he displayed no signs of stiffness or limitation. He drove to the home of a friend and spent more than two hours working on a vehicle at his friend’s residence.
·Further films were taken on 14 June and 18 June 2019. On the first of those dates, he drove from Heathcote to Bendigo without stopping. Again, on alighting from his vehicle, he showed no sign of any stiffness or any discomfort. He walked without a limp. Again, he boarded and alighted from his vehicle freely and without any evidence of caution or guardedness in the way he did.
·He drove from Bendigo to Boort, over one hour, where he visited relatives. He then drove from Boort to Heathcote, a journey of some one-and-a-half hours.
·I do not consider that his driving when under surveillance was consistent with his advice to Dr Doig that he could only drive “short distances”.
84 Mr Stone commenced his employment with Wentworth on 29 November 2011. In his affidavit sworn on 19 March 2019, he swore that, prior to working for Wentworth, he did not recall suffering any previous significant injury to his lower back. He said he had suffered at least two episodes of acute back pain which were short-lived and that these did not prevent him from performing manual work with any prior employer. I note from the clinical notes of Dr Burgin, that on 11 April 2011, about seven months before he commenced with Wentworth, he saw Dr Burgin in relation to his lumbar spine, which the doctor described in his notes as chronic low back pain.[14] Dr Burgin provided him with a Centrelink medical certificate, from which I infer that he did take time off work at that time.
[14]Exhibit A
85 I have noted the information provided by Mr Stone to various medical practitioners in relation to the medication that he took in relation to his back pain over recent years was inconsistent:
·Mr Akil – November 2019 – was told by Mr Stone that he takes Panadol, and sometimes Panadeine Forte when the pain was unbearable.
·One month later, in December 2019, Dr Rowe was told by Mr Stone that he takes “an occasional Panadol for p[a]in but generally tries to avoid it”.[15]
·In June 2019, Dr Doig was told by Mr Stone that he no longer used analgesics or any medication. In April 2020, he told Dr Doig that he used an occasional Panadeine Forte and no other medication.
·He told the Medical Panel that he takes the occasional paracetamol tablet for pain but is reluctant to take other medication and is concerned about side effects.
·Dr Doig, in June 2019, was told by Mr Stone that he no longer used analgesics or any medication. He said he could only drive for short distances.
·In December 2019 and January 2020, Mr Stone’s current general practitioner, Dr Quach, reported that she had no record of any medication. If Mr Stone was taking Panadeine Forte during or before that period, there was no evidence as to who prescribed it. On the evidence, I am not persuaded that Mr Stone has taken any prescribed medication for his low back or, at least, not for a considerable time.
·When Associate Professor Buzzard saw Mr Stone in October 2018, Mr Stone could recall experiencing lower back pain when he was aged fourteen (about 1976) but could not recall any lower back problems in either 2007 or 2011.
·He told the Medical Panel that he needs to stop every thirty minutes or so when driving to get out and stretch and move around. This was quite contrary to what was shown in the surveillance film.
[15]PCB 52
86 I am satisfied that Mr Stone’s current symptoms are not as significant as he deposed in his affidavits or in his oral evidence to the Court.
87 The plaintiff in a serious injury application carries the onus of establishing that the pain and suffering consequences of his injury – or, as in this case, the exacerbation of his pre-existing injury – are, when judged by comparison with other cases in the range of possible impairments or losses, “fairly described as being more than significant or marked, and as being at least very considerable”. For the reasons expressed above, I am not persuaded that he has discharged that onus.
Loss of earnings
88 Dr Quach considered that employment in areas of supervision or carparking attendant would be more suitable for Mr Stone. She recommended that the views of an occupational therapist be sought to determine what duties would be suitable for him. Her reports fall well short of support for the submission that Mr Stone is unfit for employment.
89 An occupational physician, Dr Leon Le Leu, provided a report dated 18 April 2019. He considered that pre-existing L4-5 disc bulging was probably the reason for his lower back pain. He had read radiology reports concerning the CT scans of 12 April 2011 (pre-accident) and 13 September 2012 (post-accident) and understood there was little difference between the two. He considered that his ongoing symptoms of back pain at or near the current level would be likely for the foreseeable future.
90 Dr Le Leu considered that Mr Stone had a capacity for light duties of an ambulatory, semi-sedentary or sedentary nature. For example delivery of local newspapers, and a weighbridge operator. He also considered other suitable work might include museum guide, research officer, recruitment officer, reservations clerk, proof-reader or receptionist although I consider these last-mentioned occupations to be quite unsuitable for a man of his education and experience.
91 Associate Professor Love was of the view that Mr Stone was unfit for the sort of work he performed for Wentworth but was fit for a range of lighter work.
92 Associate Professor Buzzard considered that Mr Stone was physically capable of unlimited work.
93 Dr Doig considered Mr Stone was fit for alternative employment at the time of his first examination. He thought he should be limited to less than 10 kilograms for lifting, pushing, pulling and the like. He thought, given his age, education and previous work experience, Mr Stone might find it difficult returning to the workplace without significant retraining.
94 Dr Doig saw Mr Stone again in April 2020 and came to express similar opinions.
95 Having later viewed the surveillance reports and films, Dr Doig provided a very different report in July 2020. Having read those reports and seen the films in question, Dr Doig revised some of his earlier expressed opinions. He considered that the films depicted Mr Stone bending and twisting with no apparent restrictions while working on a motor vehicle, including lying under the vehicle and kneeling to jack up the car, with no apparent discomfort. He considered that the surveillance footage indicated that at the time of the investigation, particularly in May 2019, Mr Stone would appear to be fit for his pre-injury occupation with no ongoing apparent restrictions with respect to his lower back. He opined that if there had been any deterioration in Mr Stone’s condition after the surveillance of May 2019, this would not be related to his work conditions in May 2012.
96 I note that of the above-mentioned practitioners, only Dr Doig had viewed the surveillance reports and films tendered. This persuades me to give his evidence more weight than the opinions of those who were not given that opportunity. These films had been provided to the plaintiff’s solicitors with ample time for them to be viewed by medical practitioners on whom Mr Stone relied to support this claim, in order to establish whether the material caused any of them to alter their previously expressed opinions. There was no reason provided as to why those other practitioners were not provided with that opportunity. This, I consider, is important given that it is Mr Stone who carries the burden of establishing that he has suffered a loss of earning capacity of 40 per cent or more as a consequence of his injury. On the evidence before me, I am not persuaded that he has done so.
Criminal Record
97 Notwithstanding the submissions of Senior Counsel for Mr Stone earlier in the hearing that the evidence of Mr Stone’s criminal record had no relevance to his application, in his closing address, he submitted that the record was relevant. He submitted that I should find that Mr Stone’s prospects of obtaining suitable employment in the future were already narrowed by his record and further limited by his injury.
98 I accept that before and after the subject accident Mr Stone might have found it more difficult to find work than a person with a good record and character, and might have been unattractive to some employers as a result of his criminal record – especially if the job in question was one involving the handling of cash or where there was a real need for an employee to be honest, reliable and trustworthy. There was no evidence that Mr Stone’s criminal record would reduce his prospects of obtaining employment. He had been successful in obtaining several jobs in the past after his release from prison.
99 In any event, I do not accept that they are factors which I am permitted to take into account.
100 I accept the submissions of the defendant that:
· The relevant question is “What income is Mr Stone currently capable of earning in “suitable employment”?
· The reference to capability is a reference to physical capability.[16]
[16]Barwon Spinners & Ors v Podolak (supra) at paragraphs [24]-[28], and especially at paragraphs [25] and [27]
· The test concentrates on what jobs a person is able to do, rather than what jobs he or she might be able to get.
· There are numerous reasons why a person might not be able to get a job at any given time – economic conditions for one.
· There are many reasons why a potential employer might choose one job applicant over another.
101 I accept the opinion of Dr Rowe that Mr Stone is likely to be able to carry out the duties of a process worker, and the opinion of Dr Le Leu that he is capable of carrying out the work of a weighbridge operator. I am not persuaded that he has established that he has suffered a 40 per cent loss of income calculated in the manner required by s325(2) of the Act. Even if I was persuaded that his criminal record could be taken into account in determining his loss of earnings, this would not cause me to alter this opinion.
102 It follows that the application shall be dismissed.
103 I shall hear the parties in relation to costs and other consequential orders. If the parties are able to reach agreement in relation to these, they should provide minutes of consent orders to my associate. In the absence of such consent, the parties should notify my associate, and I shall list the matter for submissions on a date convenient to counsel.
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