Sullivan v Central Highlands Region Water Authority v VWA
[2011] VCC 1008
•9 June 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BALLARAT
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-02227
| RONALD CRAIG SULLIVAN | Plaintiff |
| v | |
| CENTRAL HIGHLANDS REGION WATER CORPORATION | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 2 and 3 June 2011 |
| DATE OF JUDGMENT: | 9 June 2011 |
| CASE MAY BE CITED AS: | Sullivan v Central Highlands Region Water Authority v VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1008 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – serious injury application – whether consequences of injury meet statutory threshold – identification of consequences of organic injury independently of effect of psychological factors – relevance of absence of attempt to find alternative employment or to undergo rehabilitation – application with respect to both pain and suffering and pecuniary loss consequences.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Jordan SC with | Slater & Gordon Ltd |
| Mr M Nightingale | ||
| For the Defendants | Mr I Gourlay | Herbert Geer |
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages in respect of the pain and suffering and economic loss consequences of an injury sustained by him in the course of his employment with the first defendant.
2 In the course of the proceeding, the plaintiff, together with two general practitioners, Dr Charles Lewis and Dr Michael Pickavance, gave viva voce evidence and were cross-examined. Otherwise the parties rely in the application upon medical reports and other like documents tendered from their respective Court Books.
3 The injury relied upon by the plaintiff in the application involves an “aggravation of a pre-existing degenerative condition in his lumbar spine”. The impairment of function relied upon is that of the lumbar spine.
4 The plaintiff has sworn two affidavits in support of the application: the first on 21 July 2010; and the second on 12 April 2011.
5 In his first affidavit, the plaintiff said that:
•
He was born in Australia on 20 December 1960. He left school before completing Year 10. His employment history involved that of generally unskilled work.
•
He commenced employment with the first defendant late in 1999 on a casual basis but was, from approximately 2001, employed on a permanent basis. In employment with the first defendant he undertook the duties of a mill hand which involved heavy work, realigning pieces of timber to facilitate its storage. He said that on 18 February 2004 in the course of performing this work, he –
“felt something give in the low-back as well as a warm sensation in
the low-back and down the right leg.”
The plaintiff said that following this incident, he was –
“off work for a few days before I made a short-lived attempt to return to light duties. I struggled with the light duties as they involved a lot of bending and in or about April 2004, I stopped working because of the state of my back.”
• He said that he had not worked since April 2004, that initially he received weekly payments of compensation until October 2007 and he was now in receipt of the Disability Pension. • He described suffering from constant low-back pain which was worse sometimes than others, the level of which was affected by physical activity. He described his back pain as increasing if he sat or stood for long periods and if he undertook activities such as bending, twisting, lifting or walking, especially over rough ground or up and down hills. He described his symptoms as being worse in cold weather. 6 In his second affidavit, the plaintiff said:
• That he had left school at about the age of fifteen and that he had not been very good at schoolwork. • That he had suffered from chronic hearing problems throughout his life. (In his viva voce evidence, the plaintiff explained that he was totally deaf in his right ear and possessed only twenty-five per cent of normal hearing in his left ear.) • That the only work he had ever done in his life had been manual work and that – “It was never easy for me to obtain work with my lack of education, no further qualification since leaving school, my hearing problems and my work experience.”
7 Whilst both of the plaintiff’s affidavits attest to the pain and suffering consequences associated with his injury and impairment, having regard to the fact that this application is one which the parties agree turns largely upon whether the plaintiff has established that the consequences of his impairment are such that they meet the statutory threshold imposed by the Accident Compensation Act 1985 (“the Act”) in respect of the right to commence a proceeding in respect of pecuniary loss damages, I find it convenient to consider that issue at this time.
The Plaintiff’s Viva Voce Evidence
8 The plaintiff gave the following relevant evidence:
•
He had had a problem with alcohol, but his consumption of alcohol had never interfered with his ability to work. He volunteered that there had been a period in his life for about six months during 1987 when alcohol was a big problem for him but that after that time, although he had continued to drink, sometimes to excess, he had generally significantly moderated his intake of alcohol. He said that in the twelve months before commencing employment with the first defendant he had not consumed any alcohol, and that between 1999 and the present date, his consumption of alcohol had not interfered with his capacity to work or to seek work.
•
Before he commenced his employment with the first defendant, the plaintiff had consulted Dr Lewis in respect of emotional issues and had been prescribed Serapax, which he discontinued using approximately six months after he commenced employment with the first defendant.
•
He described the work he undertook for the first defendant as being heavy work involving four ten-hour shifts a week.
•
He said that he believed that on his attending the St John of God Hospital following his accident, he reported that at the time of the accident he felt something give in his back but he was unable to recall the exact conversation.
•
He described his ability to move his back as being restricted since the incident, in that he was unable to bend backwards and that whilst he found bending forwards easier he said, “I can’t – I can’t get up”. He described his pain as being present in his back and said that his capacity for standing was limited to between fifteen to twenty minutes and that his capacity to sit was limited to between fifteen minutes and thirty minutes. He said that his ability to sleep was interfered with, such that he was often up at 2.00 in the morning –
“and I won’t go back to bed until the next night. I can’t sleep
during the day – as soon as the sun comes up I can’t sleep.”
•
He agreed that Dr Lewis had certified him as being fit for part-time light duties but said that he had not made any attempt to find a job, explaining:
“Because, as I said, I don’t think anyone is going to employ you for
four hours a week.”
and further:
“I can’t tell you what I’m going to be like from day to day. I can’t guarantee if I’m going to be able to turn up for a job from one day to the next let alone one hour to the next. I’ve got no say over that. I wish I did have. I don’t.”
and further:
“If I was capable of finding work I would have done it.”
•
He said that he presently employed Norspan patches and Panadeine Forte, which he took at night, but not every night, depending upon his symptoms.
•
He said that he had only completed Year 9 and was an average to medium-low scholar, commenting:
“I’m no good at filing or anything like that. I can fill out forms that are already printed up for me. … I don’t use computers, I never have.”
The Medical Evidence
9 Following the incident, the plaintiff presented at St John of God Hospital. A report from the hospital describes the plaintiff as having sustained an injury to his right upper thigh which was described in the hospital notes as “a right hamstring sprain”. The plaintiff was seen at the hospital again on 26 February 2004 when the presence of persisting tenderness over the adductor muscle in the right thigh and the medial hamstring muscle in the upper thigh and right leg was noted. He was prescribed anti-inflammatory medication and was provided with a certificate exempting him from duties until 7 March 2004.
10 The plaintiff presented to his general practitioner, Dr Charles Lewis, on 3 March 2004 complaining of pain in the right leg and lower back. Dr Lewis described the plaintiff as presenting with tenderness to the right side of the lower back, tenderness in the hamstrings and as having difficulty walking. He said that an ultrasound of the hamstrings did not show the presence of a haematoma and a CT scan of the lumbar spine revealed the presence of a disc bulge in the back without nerve root impingement. Dr Lewis reported that by late March, the plaintiff had improved to the degree that he was certified for light work but that on 6 April 2004, he re-presented with the recurrence of low- back pain. As at 29 January 2005, Dr Lewis opined that the plaintiff was not fit for his pre-injury duties and that his hearing difficulties may have a bearing on his employment prospects.
11 In a report dated 30 April 2007, Dr Lewis opined that the only work the plaintiff may be capable of performing would be –
“… part-time work of a sedentary nature. He would have to be able to sit or stand as he required for comfort and to change between these two postures as he required. He could not do any bending or lifting. … Manual work of any sort is out of the question. … I would not expect him to be able to work more than four hours a day, two days a week.”
12 In reports dated 27 October 2007 and 20 September 2008, Dr Lewis essentially maintains the opinion expressed by him in his earlier reports; namely, that by reason of the plaintiff’s back pain, he had no capacity for work as a labourer and his working capacity was restricted to part-time light duties not involving pushing, pulling, bending or lifting. He might be able to cope with four hours a day twice a week.
13 The medical records of Dr Lewis which have been tendered reveal that the plaintiff underwent facet joint injections to his lumbar spine on 26 May 2006 and on 16 June 2006. It was the opinion of Professor Graham Buirski, who administered these injections, that the plaintiff did not achieve a successful response to these injections and that therefore “his facet joints are not significantly contributing to his symptom complex”.
The Viva Voce Evidence of Dr Lewis
14 Dr Lewis gave evidence:
•
That the plaintiff consulted him in May 1999 with symptoms of back pain. That he next saw the plaintiff on 17 June 1999, at which time back pain was mentioned but thereafter back pain was not again mentioned until his presentation in respect of the subject incident in March 2004.
•
That the plaintiff had issues with the consumption of alcohol, that it was evident that the plaintiff occasionally drank heavily but that it was his opinion that the plaintiff’s consumption of alcohol had not impeded his ability to work.
•
That at times he was disappointed with the plaintiff’s attitude towards engaging with treatment. This particularly arose in respect of the plaintiff’s failure to employ swimming as a means of exercising his back.
•
That the plaintiff had consulted him in July 2003 with respect to an injury to his right knee which, in the opinion of Dr Lewis, was quite distinct from the injury with which the plaintiff presented in March 2004.
•
It was put to Dr Lewis that the plaintiff’s pain management was unsuccessful because the plaintiff had been unprepared or unwilling to engage in the processes involved. Dr Lewis responded:
“I haven’t recorded as to why he stopped attending, and I have no
recollection as to why he stopped attending.”
• Dr Lewis agreed that the plaintiff’s CT scan did not reveal anything which was dramatic, commenting – “… but that’s not as if they don’t show anything at all and I would say, weighing it all up, although the facet joint injections were ultimately unhelpful, there is still some possibility, in my opinion, that he could have facet joint problems. I base that opinion on the fact that when I examined him, one constant feature of the examination was that he had pain on extension of his back and not on flexion, and that often indicates a facet joint problem.”
• That as at September 2007, he said that had certified the plaintiff as fit for part-time light duties with no physical labour and that he felt the plaintiff was unduly pessimistic in his outlook. He said, with respect to part-time work, that: “It’s really a matter of starting with a small hours of work and increasing it as tolerated”, that he had encouraged the plaintiff to get back to work and that he felt that the plaintiff may have clerical skills, having regard to his receipt of a letter which “I thought he had written, I forget the exact date but I felt that he expressed himself sufficiently well enough to think about doing work other than labouring, clerical work of some sort.”
Dr Lewis said however, that he was not aware who in fact had written the
letter, his assumption being that it had been the plaintiff.
• Dr Lewis said that he had last examined the plaintiff on 5 December 2008. 15 The plaintiff tendered a report dated 17 October 2008, from Ms A Auchettl, a physiotherapist who is attached to the Chronic Pain Management Service of the Ballarat Hospital. She records that the plaintiff attended the service in May 2005 and that whilst his “self efficiency had increased, as had his sense of control”, the service was of the opinion, as at late February 2006, that the plaintiff was not ready to proceed with the Chronic Pain Management Program offered by it, and he was discharged from the Service at that time.
16 The plaintiff came under the care of Dr M Pickavance, general practitioner, on 5 May 2009. In a report dated 11 September 2009, Dr Pickavance described the plaintiff’s presentation as involving constant back pain which was aggravated by activity. He diagnosed the plaintiff as presenting with “Chronic Back Pain Syndrome” and said that the plaintiff had developed a degree of depression secondary to that condition.
17 Dr Pickavance opined:
• that the plaintiff’s condition had been stable for some years and that it was likely to remain so; • that the plaintiff did not have a capacity for pre-injury work and was unfit for work which required him to stand in one position for any length of time or which involved repeated lifting or bending or handling even light weights. 18 In a further report dated 28 March 2011, Dr Pickavance diagnosed the plaintiff as suffering from “chronic low-back pain due to degenerative disc disease of the back”. He opined that the plaintiff was totally and permanently incapacitated regarding his ability to perform work for which he was suited by virtue of training or experience and that the plaintiff was unfit for work which involved bending, lifting or stooping – which activities were to be avoided at all times – or prolonged sitting, walking or standing. The list of the restrictions imposed by Dr Pickavance in this regard is more extensive than those which I have quoted and appear at page 46 of the Plaintiff’s Court Book. In my opinion, they are such as to effectively largely preclude the plaintiff engaging in any form of work.
The Viva Voce Evidence of Dr Pickavance
19 Dr Pickavance gave evidence:
• That the plaintiff presented with chronic back pain and depression but that his primary presentation was his back pain, his depression being secondary, far less significant and readily treatable if the plaintiff did not have chronic back pain. • That whilst his initial assessment of the plaintiff was that he lacked motivation, he had since changed his opinion in this regard, commenting; “Since I have been looking after him for the last two years, it has become obvious that the limiting factor is primarily that he has significant limitation in what he can do because of his back pain, and the apparent lack of drive to do things is not a primary issue as it seemed to me initially but really a secondary issue. He is trying to do things at home on and off and suffered, you know, exacerbation of his pain, and the fact that he couldn’t – didn’t seem to want to or be able to pursue more self-help wasn’t really a correct impression, in retrospect. It was what seemed to me at the time with an initial, not having known him for very long. If I was writing that report again I think I would write it differently now.”
20 Dr Pickavance was asked:
Q:
“Moving to your second report, the 11 March one, you have changed your mind, I think you’re telling us now, about his motivation or the source of his problem? ---
A:
I’m telling you that I believe that the reason that he wouldn’t be able to return to work was because his back is limiting him too much.
Q: Does he have a capacity to do any administrative clerical work
where he was sitting at a desk and had flexibility to move? ---A:
Not for the duration of time which would construe doing the job. He couldn’t be there for four hours a day. He probably couldn’t be there for three hours a day. I don’t know how long he could exactly be there for but it wouldn’t really construe a job, and there’d be times when his back would be – would be worse and he wouldn’t be able to go at all. So realistically I don’t see how he could.”
He continued:
Q:
“Say there was a light job, say there was a light administrative job where he was able to come in say Monday, Wednesday, Friday and work for – I’m not sure, I think you said three hours/four hours?---
A: I was picking numbers out of the air. They were maximums ….
Certainly not minimum.”
• He said that whilst with a patient who had suffered a new injury he would employ a process of encouraging a return to work on a part-time basis and then building up the hours if possible, the plaintiff’s presentation involved a different scenario. • That the plaintiff presented with a Chronic Pain Syndrome which was – “not a psychological thing. It’s something that seems to change within the clusticity of the brain … He has chronic pain. It limits his activity. I don’t know that it will ever change. I don’t believe it will. It’s well established now.”
Dr Pickavance was asked:
Q: “We’ve heard about, the physiotherapy, chiropractic, acupuncture, laser acupuncture, massage therapy, Bowen therapy, being sent to the Queen Elizabeth Centre for pain management approach, as well as a whole range of medications and facet joint injections. Is there anything else the man can do?---
A:
No, we have exhausted all medical treatment. The only thing medical treatment would do would give him a little bit of temporary relief each time he had it.”
•
Dr Pickavance opined that whilst the plaintiff could be assessed by an occupational therapist –
“I really think that if he got an occupational therapist to see him
they would find that he’s not fit for work.”
and described the plaintiff’s reliability as a patient in the following terms:
“I don’t think he’s ever missed an appointment. So that my – what I’ve seen of him is not unreliable. He’s never abused his drugs, he’s never – he has just been consistent with everything I’ve asked him to do.”
21 Dr David Murphy, a consultant physician in rehabilitation medicine, examined the plaintiff at the referral of Dr Pickavance on 30 June 2009. He expressed the plaintiff as presenting with a back pain syndrome which Dr Murphy considered was emanating from “irritable facet joints in the mid lumbar area”. He opined:
(i) that the plaintiff presented with specific back pain due to degenerative changes in the lumbar spine; (ii) that but for his injury, the plaintiff would have been able to continue his employment with the first defendant for the foreseeable future; (iii) that excluding any psychological or psychiatric consequences of his physical injury, the plaintiff’s pain emanated entirely from his organic condition; (iv) that the plaintiff was not fit to undertake pre-injury employment and was able only to undertake employment which did not require repeated bending, lifting, twisting or lifting more than ten kilograms, or prolonged sitting or standing or exposure to repetitive jolting of the lumbar spine. Dr Murphy described these restrictions as being permanent. 22 Mr Stephen Doig, an orthopaedic surgeon, examined the plaintiff on 2 September 2010. He opined that the plaintiff had suffered an organic injury to the lumbar spine which involved –
“… disc degeneration at L5-S1. It is possible that there has been some
damage to the facet joints by the same lifting injury as well.”
23 He described the plaintiff’s injuries as having stabilised, and commented:
“I do not think that he is capable of going back to his pre-injury duties which he described as being a very heavy job. In general I think it is unlikely he is going to have a capacity for employment at this stage.”
24 Mr Doig described the plaintiff’s condition as having stabilised and as being likely to persist into the foreseeable future.
25 In a report dated 4 April 2011, Dr David Middleton, an occupational health and rehabilitation consultant, diagnosed the plaintiff as having suffered a strain of the lumbar spine aggravating his facet joints and the L5-S1 lumbar disc. He opined that the plaintiff’s physical injury, excluding any psychological or psychiatric condition, rendered him incapable of returning to pre-injury duties and that his –
“… skills base, work experience, education, place of residence and age, it is my opinion that as a consequence of his physical injuries Mr Sullivan does not have the capacity to obtain paid employment.”
26 He opined that were the plaintiff able to find work which enabled him to place himself, have rest breaks as required and change his posture as required, he had a capacity –
“At best he would be able to attend at that physical level on a part-time basis up to three hours per day, three days per week but that attendance at such activities, in my opinion, would not be reliable. On this basis I believe that any suggestion of work capacity in the case of Mr Sullivan is theoretical, especially taking into consideration his lack of transferable skills.”
The Medical Evidence relied upon by the Defendants
27 In contesting the plaintiff’s entitlement to the relief which he seeks, the defendants rely on a series of reports from Dr Andrew Miller, occupational health consultant, who first examined the plaintiff on 19 May 2004, at which time he opined that the plaintiff was fit for restricted light duties and that his employment remained a material contributor to his incapacity.
28 In a further report dated 17 November 2004 however, whilst Dr Miller noted that on re-examination the plaintiff’s back condition had remained relatively unchanged, he opined:
“The injury appears to have been an aggravation of pre-existing degenerative changes at L2/3. I believe the aggravation would have resolved by now and his ongoing disability is due to the pre-existent degenerative condition.”
29 In a report dated 20 June 2007, Dr Miller makes similar comments, expressing at that time the opinion that the plaintiff was fit for work which did not involve lifting in excess of seven kilograms, extreme movements of his neck or back, or prolonged static postures such as sitting or standing in the same position for more than one hour at a time. He opined that the aggravation sustained by the plaintiff to pre-existing degenerative changes in his lumbar spine in the course of his employment with the first defendant had resolved and, accordingly, that his employment with the first defendant no longer materially contributed to the plaintiff’s presentation and that the plaintiff had “lapsed into a chronic sick role”.
30 I do not find Dr Miller’s statements in this regard to be at all persuasive for the following reasons:
(i)
The plaintiff’s presentation to Dr Miller in November 2004 was essentially the same as his presentation some six months earlier. Dr Miller’s opinion as to the plaintiff’s capacity for work and as to the organic nature of the plaintiff’s presentation did not vary between the time at which he expressed his initial opinion in May 2004 that the plaintiff’s work continued to be a material contributing factor to his symptoms, and the expression by him of his opinion in November 2004 to the opposite effect. In my opinion, the consistency of the plaintiff’s presentation would suggest a continuing relationship between the plaintiff’s work and his symptoms, and the opinion expressed to the contrary by Dr Miller without any justification or explanation, is unpersuasive;
(ii)
Further, in his report dated 20 June 2007, Dr Miller opines that the plaintiff had lapsed into a chronic sick role. I interpret the use by Dr Miller of that term to indicate the presence of significant emotional factors in the plaintiff’s presentation at that time. His opinion in this regard however, does not appear to be based upon any significant change in the plaintiff’s symptoms or history when the findings by Dr Miller in his two previous assessments of the plaintiff are compared with those during his assessment of 19 June 2007. In these circumstances, I consider Dr Miller’s statement as to the presentation by the plaintiff with a chronic sick role to be based upon a reasoning process which is equally unpersuasive.
31 The plaintiff was examined by Mr Paul Kierce, orthopaedic surgeon, on one occasion on 24 November 2010. Mr Kierce opined that whilst the plaintiff suffered an exacerbation of lumbar spondylosis in his injury of 18 February 2004, he presented at the time of his examination of the plaintiff with “an ongoing Chronic Pain Syndrome which will be difficult to reverse”. Mr Kierce opined that the plaintiff had a capacity from a physical view for his pre-injury employment and that his employment with the first defendant was no longer a contributing factor to his condition.
32 There is no suggestion by Mr Kierce that the plaintiff was guilty of conscious exaggeration. If the plaintiff was presenting with a significant psychological condition I would have expected that a diagnosis of that condition would have been made by Dr Paul Kornan, a consulting psychiatrist who assessed the plaintiff on behalf of the defendants on 1 April 2011, who opined that the plaintiff presented with an Adjustment Disorder and Mixed Anxiety Disorder of a mild degree and that his psychiatric presentation did not impact upon his capacity for employment.
33 Mr Kierce is the only medical practitioner to opine that the plaintiff possesses a capacity to undertake his pre-injury employment. Having regard to the extremity of that statement when it is considered in the context of the large body of medical opinion which presents a contrary view in this case and the apparent inconsistency between the opinion expressed by Mr Kierce, and that of Dr Kornan, I prefer the opinions of the plaintiff’s treating medical practitioners to that of Mr Kierce, both as to the organic nature of the plaintiff’s presentation and the continuing relationship between the plaintiff’s employment with the first defendant and his organic incapacity.
34 The plaintiff was examined by Mr John Bourke, an orthopaedic surgeon, on 30 March 2005. Mr Bourke expressed the opinion that the plaintiff had suffered an injury to his lumbar spine at the L5-S1 level with some irritation of the right S1 nerve root. He opined that the plaintiff presented with symptoms consistent with a soft-tissue injury at the L5-S1 level, and commented that he also presented with features most likely consistent with an Adjustment Disorder and Depression secondary to his work injury. Mr Bourke opined that the plaintiff had, at that time, a total incapacity for work.
35 In a further report dated 18 May 2006, Mr Bourke opined that the plaintiff suffered from lumbar spine dysfunctions secondary to a soft-tissue injury to his lumbar spine in the presence of degenerative change at the L5-S1 level. He commented that the plaintiff:
“… also has a Chronic Pain Syndrome, as is exemplified by his analgesia
overuse and the lack of response to physical treatment”;
and opined:
“This man has no current work capacity and this is indefinite.”
36 Mr Bourke expressed this opinion, having taken into account the following matters:
(i) the plaintiff’s history of a soft-tissue injury to the lumbar spine; (ii)
Mr Bourke’s physical findings of restriction of extension, lateral flexion and lateral rotation to the right;
(iii) the plaintiff’s chronic pain behaviour; (iv)
the plaintiff’s work experience and the positions identified in a vocational assessment undertaken on 3 June 2004.
37 I am of the opinion that his reports are of only marginal relevance to the task required of me; namely, to assess the level of the plaintiff’s injury-related impairment upon his capacity for employment given the fact that some five years have passed since Mr Bourke’s assessment of the plaintiff. Whilst I accept the submission on behalf of the defendants that the use by Mr Bourke of the term “Chronic Pain Syndrome” in his report is probably a reference to an emotional rather than a physical condition, there is no suggestion by Mr Bourke that the plaintiff’s chronic pain behaviour dominated the clinical picture.
38 Given the large body of opinion which supports the plaintiff’s organic back condition as being responsible for his current presentation, when considered in the light of –
•
the evidence upon this issue given by Dr Pickavance, who as the plaintiff’s treating medical practitioner is, in my opinion, well placed to comment upon the significance of the plaintiff’s emotional condition upon his presentation;
•
The opinion expressed by Dr Paul Kornan, in April 2011, who opined that the plaintiff presented with an Adjustment Disorder and Mixed Anxiety Disorder of a mild degree and that his psychiatric presentation did not impact upon his capacity for employment;
I am satisfied that the organic injury suffered by the plaintiff to his back in the course of his employment with the first defendant is the primary cause of his pain and incapacity and that given the history of that condition, its effect is likely to be permanent.
The Relevance of the Plaintiff’s History of Alcohol Consumption and Depression
39 I do not consider that the plaintiff’s history of alcohol consumption or his history of depression has any bearing on the issues which I am required to determine in this case; namely, the effect of the plaintiff’s accident-related condition upon his ability to work. Whilst it may be that in the late 1980s the plaintiff’s consumption of alcohol adversely impacted upon his employability, there is no evidence that that impact continued for a period of greater than six or so months. The defendants do not contend that the plaintiff was anything other than a competent employee. In my opinion, the plaintiff’s capacity and reliability as an employee is confirmed by the fact that he was initially employed by the first defendant as a casual worker and was subsequently employed on a permanent basis. Further, the fact that the plaintiff was able to obtain employment notwithstanding the severe hearing impediment from which he suffers bears further testament to his work ethic.
Finding as to the Plaintiff’s Capacity for Employment
40 It is put on behalf of the defendants that the evidence reveals that the plaintiff has a capacity for suitable employment which he has not exercised, in that he has made no attempt to find employment since he last worked for the first defendant.
41 Whilst I accept that the evidence discloses a “theoretical capacity” when one considers the restrictions placed upon the work which the plaintiff is presently fit to undertake; namely, that described by:
(i) Dr Pickavance in the following terms:
“▪ bending, lifting, twisting or stooping to be avoided at all times ▪ pushing, pulling or lifting – maximum weight ten kilograms ▪ repetitive, pushing, pulling or lifting – to be avoided ▪ repetitive or prolonged use of the back muscles in activities
described in this list – to be avoided▪ kneeling, squatting or crouching – occasional activity only ▪ prolonged sitting, walking or standing – he cannot do this
without increasing his pain”;
(ii) Dr Middleton; namely, self-paced work involving rest breaks as required and an ability to change posture as required, in respect of which the plaintiff’s attendance would not be reliable;
(iii) Dr David Murphy; namely, employment which does not require repeated bending, lifting, twisting or lifting more than ten kilograms, or prolonged sitting or standing or exposure to repetitive jolting of the lumbar spine;
(iv) Dr Charles Lewis; namely, sedentary work on a part-time basis in which the plaintiff was able to sit or stand as necessary and which did not involve lifting, repeated bending, pushing or pulling nor working with machinery;
and when account is taken of the fact that;
• the plaintiff has been educated only to Year 9 level; • he presents with a very significant impairment in his hearing; • the general consensus of medical opinion is that the plaintiff would only be fit to work on a part-time basis of up to nine hours per week; I am satisfied that the plaintiff’s theoretical capacity to work is so qualified by the restrictions which exist as to that capacity that I should accept the statement made by Dr Middleton that the plaintiff “does not have the capacity to obtain paid employment”.
The Relevance of Rehabilitation
42 The defendants point to the provisions of s.134AB(37)(g) and s.134AB(19)(b) of the Act which impose upon the plaintiff the onus of proving a lack of ability to be retrained or rehabilitated into suitable employment and requires me to take into account the plaintiff’s capacity for suitable employment which the plaintiff would possess after having undergone appropriate rehabilitation or retraining.
43 In considering this issue, I am of the opinion that I should do so taking into account primarily the opinions expressed by Dr David Murphy and Dr David Middleton, both of whom have specialist qualifications in rehabilitation.[1] Dr Murphy expressed the opinion that the plaintiff’s involvement with rehabilitation had been fairly limited and that with rehabilitation, the plaintiff may be able to taper off his use of opiate medications in the longer term. The opinion which he expressed as to the restrictions which should be applied to work which the plaintiff was capable of undertaking were described by Dr Murphy as being likely to be permanent however, and I interpret Dr Murphy’s opinion in this respect as taking into account any benefit which the plaintiff may achieve should he undergo further rehabilitation.
[1] Dr Murphy practises as a consultant physician in rehabilitation medicine and Dr Middleton practises as an occupational health and rehabilitation consultant.
44 Dr Middleton was asked to express an opinion as to the plaintiff’s treatment requirements, and other than opining that the plaintiff should continue to receive psychiatric and psychological support and that alterations may be made as to the combination of medications which the plaintiff employs to manage his condition, Dr Middleton did not suggest that any specific rehabilitation or retraining was available to the plaintiff which would impact upon the opinion expressed by Dr Middleton that the plaintiff had no capacity for paid employment.
45 Taking into account these opinions in the context of the plaintiff’s age, his employment history – which is limited to manual work – his basic level of education and his unchallenged evidence that he has no computer skills and was a poor student, I am satisfied that the plaintiff has established that his current level of incapacity for employment would be unlikely to be altered by the plaintiff’s participation in any retraining program.
Conclusion
46 For the reasons set out above, I am satisfied –
• that the plaintiff has established that by reason of the impairment of the function of the lumbar spine, he has sustained a loss of earning capacity, the consequences of which are, when judged by a comparison with other cases in the range of possible impairments, fairly described as being more than “significant” or “marked” and as being at least “very considerable”. • That the plaintiff is entitled to the orders sought in this application; namely, leave to commence a proceeding claiming damages for both the pain and suffering consequences and the loss of earning capacity consequences of the injury sustained by him the subject of this application. 47 I will hear the parties as to the precise form of the order which is sought and also upon the issue of costs.
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