Sun v Victorian WorkCover Authority
[2020] VCC 1307
•28 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00485
| XIN SUN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne (via Zoom hearing) | |
DATE OF HEARING: | 10 August 2020 | |
DATE OF JUDGMENT: | 28 August 2020 | |
CASE MAY BE CITED AS: | Sun v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1307 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to spine – pre-existing injury – aggravation – pain and suffering – loss of earning capacity – suitable employment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
Judgment: Application successful.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Dunstan with Ms M Fudim | Zaparas Lawyers |
| For the Defendant | Mr A W Middleton | Hall and Wilcox Lawyers |
HER HONOUR:
Preliminary
1 Mr Sun worked as a salesperson for The Good Guys Discount Warehouses Pty Ltd (“the Good Guys”) at their Chadstone store, from August 2015, where his work involved manual handling, including moving whitegoods between the sales floor and the delivery and warehousing areas. On 22 May 2017, Mr Sun experienced lower back pain when he was required to lift a washing machine and then again, on 23 May 2017, when he was required to unpack a pallet containing several hundred boxes of juicing machines. As a consequence, Mr Sun claims he aggravated a pre-existing spinal injury, and that he has subsequently suffered ongoing pain in his lower back and legs. Mr Sun is currently working nine hours per week, on light duties with the Good Guys and claims this is the limit of his capacity for suitable employment.
2 Mr Sun had previously injured his lower back at work in 2005, at the same level of his lumbar spine that is the subject of this claim. At that time, Mr Sun claimed he suffered ongoing pain and was incapable of work. Soon after settling a damages claim in 2008, Mr Sun travelled to China where he claims numerous treatments successfully resolved his pain levels, such that he did not require any further treatment and was soon thereafter able to return to full-time employment.
3 Mr Sun initially brought this application pursuant to paragraphs (a) and (c) of the definition of “serious injury” contained in s325 of the Workplace Injury Rehabilitation and Compensation Act (“the Act”). At the commencement of the hearing, counsel acting on behalf of Mr Sun confirmed he no longer persisted with his claim under paragraph (c).
4 Mr Sun claims to suffer serious pain and suffering consequences, as well as pecuniary loss consequences as a result of his lower back injury. In order for Mr Sun to be entitled to claim common law damages, the impairment to his aggravated spine must satisfy paragraph (a) of the definition of “serious injury” contained in s325 of the Act.
5 The defendant accepted that Mr Sun suffered an injury in May 2017 but claimed that the impairment and consequences flowing from it, were no different than that that of his previous work injury. Further, the defendant alleged that Mr Sun currently has a capacity for full-time employment in light sedentary roles for which he is suitably qualified.
6 Mr Sun was called to give evidence and was cross-examined, with the assistance of an interpreter. Medical reports and other material were also tendered, including an affidavit from Mr Sun’s wife. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
7 For the reasons which follow, I am satisfied that as a consequence of his aggravated spinal impairment, Mr Sun is currently working to his maximum capacity and is suffering at least a 40 per cent permanent loss of earning capacity. I therefore grant him leave to commence common law proceedings for both pain and suffering and pecuniary loss damages.
Mr Sun’s working life prior to suffering his spinal impairment
8 Mr Sun was born in China and is forty-two years of age. He is married and has a young son.
9 Mr Sun completed high school and then a Bachelor’s degree in international trade in China. Whilst in China, he said he worked for one month as a manager at a McDonald’s restaurant.
10 In July 2001, Mr Sun migrated to Australia. He then completed a Master of Finance at RMIT. He said that after gaining this qualification, he applied for over one hundred jobs but was unsuccessful in obtaining employment in the finance sector. Mr Sun said he therefore subsequently worked in various casual jobs which included working as a kitchenhand, farmhand, cleaner and a factory hand.
11 In about May 2005, Mr Sun experienced a sore lower back at work whilst lifting furniture. He also experienced occasional shooting pains into his left leg. He attended on his general practitioner, who referred him for a CT scan and x-ray of his back. He underwent treatment including acupuncture, massage and traditional Chinese medicine.
12 By about September 2005, Mr Sun said his pain had resolved and he returned to work on modified duties, working full-time hours.
13 In about December 2006, Mr Sun said he hurt his back again whilst lifting at work. He had time off work and received treatment for this injury from his general practitioner, traditional Chinese treatment, physiotherapy and home exercise programs.
14 An MRI scan taken on 29 January 2007 demonstrated:
“L5/S1: Left paracentral disc extrusion displacing and compressing the descending left S1 nerve root at the lateral recess posteriorly, foramina are patent. There is mild bilateral facet arthropathy.”
15 In March 2007, Mr Sun attended on neurosurgeon, Mr Paul D’Urso. In his report dated 18 July 2007, Mr D’Urso diagnosed Mr Sun as suffering a lumbosacral disc prolapse, with left S1 radiculopathy. Mr D’Urso stated it was likely there was a direct relationship between the development of the lumbosacral disc prolapse and lifting work that Mr Sun was performing in May 2005 and December 2006. Mr D’Urso was of the opinion that as Mr Sun had not responded to conservative medical management, he recommended Mr Sun undergo surgery. However, Mr Sun elected not to undergo such surgery.
16 In June 2008, occupational physician, Dr Charles Castle, provided a report to Mr Sun’s solicitors for a common law damages claim which Mr Sun made at that time. In his report dated 18 June 2008, Dr Castle confirmed that Mr Sun had no “prospect of finding employment on the open labour market, because of the severity of his back problems, and his health limitations due to his back condition”.
17 In approximately October or November 2008, Mr Sun received a common law settlement from his former employer in relation to this lower back injury. Mr Sun confirmed this claim was in respect of an injury to his L5-S1 disc.
18 Soon after the settlement of his claim, Mr Sun returned to China, where he remained for approximately six months. Whilst there, through the recommendation of a friend, Mr Sun sought out traditional Chinese medicine treatments of acupuncture, stretching massage and herbal medicine. Mr Sun said at the end of this treatment, his back pain completely resolved. However, Mr Sun said he was not as strong as he used to be, and he had a reduced range of motion in his spine.
19 Following his return to Australia, Mr Sun completed a six-month course at Holmesglen TAFE. He could not recall the name of this course but said it was directed towards helping improve his English. Mr Sun said as part of this course, he undertook a work placement for one month as an accounts clerk. He said he was not very good in this role and that his output was less than half of the other workers.
20 Mr Sun said that after completing this course, he again attempted to find work in the finance sector, but despite many applications, was unsuccessful. Mr Sun said as a result, he decided to open his own cleaning business, a franchise of the Jenny King company. Mr Sun said this involved dealing with clients, supervising up to 20 cleaners, giving quotes, training new staff and performing administrative work.
21 Mr Sun said he decided to establish this business as he wanted to earn income in a role which did not expose his back to further injury. Mr Sun said he avoided physical work because he “was already damaging myself once”. Mr Sun said he ultimately closed the business in about mid-2015 as he did not make much money from it. Soon after, Mr Sun commenced employment with the Good Guys.
22 Away from his working life, Mr Sun said that prior to 2005, he had played competitive badminton, but stopped after suffering his initial back injury. Mr Sun said that after his back pain resolved in 2009, he was able to resume playing badminton at a social level.
23 In addition to social badminton, prior to suffering his injury the subject of this claim, Mr Sun said he enjoyed bushwalking and swimming.
24 Mr Sun said he did all the cooking for his family and shared the cleaning duties with his wife. Mr Sun also said he did the majority of the gardening and mowing at his home and enjoyed growing flowers.
Mr Sun’s employment with the Good Guys
25 In August 2015, Mr Sun commenced employment as a salesperson for the Good Guys in Chadstone. He worked five days a week, as well as some overtime. It was agreed between the parties that Mr Sun’s average pre-injury income was $1,458 gross per week.
26 Mr Sun said his work with the Good Guys involved manual handling, including moving whitegoods between the sales floor and the delivery and warehousing areas.
27 On or about 22 May 2017, Mr Sun was lifting a washing machine with the help of a colleague, when he noticed some pain in his lower back.
28 On 23 May 2017, Mr Sun said he was required to unpack a pallet containing several hundred boxes of juicing machines. He said the boxes weighed about 15 kilograms, that the area was cramped and he was standing awkwardly. He said that whilst lifting a box, he noticed a sharp pain in the middle and left of his lower back. Mr Sun said there was a clicking noise and for a short time his back locked up and he was unable to move it. After a while, Mr Sun said his pain decreased a little and he was able to resume his work for the rest of the day.
29 Mr Sun said the following day he woke up very sore and found it hard to move his back and to walk.
30 On 24 May 2017, Mr Sun attended on his general practitioner, Dr Sam Mellati. At that time, Dr Mellati noted that Mr Sun’s pain was so intense he could barely walk.
31 On 26 May 2017, an MRI scan was taken of Mr Sun’s lumbar spine which demonstrated a “central and left paracentral [L5/S1] disc protrusion … [with] mass effect on the [exiting L5 and] traversing S1 nerve root”.
32 In about mid-2017, Mr Sun said he attempted a return to work. He said that initially he returned to work about two hours a day, twice a week, on light duties. He said he eventually increased his hours to about four hours a day, three days a week but that after a month or two, he had to go off work again as he was finding it too difficult with his pain. Mr Sun said he had about a month off work before then returning to work.
33 In June 2017, Mr Sun was referred to physiotherapist, Luke Spinks. In a report dated 15 June 2017, Mr Spinks wrote to Dr Mellati and stated that whilst he was hopeful that Mr Sun would continue to improve with pain and mobility, he was unsure whether Mr Sun would be able to achieve such improvements without surgical intervention.
34 On 21 June 2017, Dr Mellati referred Mr Sun to neurosurgeon, Dr Caroline Tan. In a report dated 6 July 2017, Dr Tan noted Mr Sun’s past history, and noted the MRI scan demonstrated a large left posterolateral L5-S1 disc herniation with impingement on the left S1 nerve. Dr Tan advised Mr Sun that there were surgical and nonsurgical treatment options available to him. In relation to nonsurgical treatment, Dr Tan recommended an epidural cortisone injection. However, in the event that pain persisted following such an injection, Dr Tan considered that surgery was a reasonable and appropriate treatment.
35 On 21 July 2017, Mr Sun underwent a CT-guided left L5-S1 foraminal injection.
36 On 22 September 2017, Mr Sun attended on physiotherapist, Mr Chai. In his report dated 22 September 2017, Mr Chai provided a provisional diagnosis of lumbar spine disc herniation syndrome with radiculopathy. Mr Chai recommended massage, acupuncture and stretching exercises.
37 On 4 October 2017, Mr Chai provided a further report to Dr Mellati in which he stated that Mr Sun’s working hours needed to be decreased as it was aggravating his pain, and suggested that Mr Sun return to do four-hour shifts, two days per week.
38 On 30 October 2017, Dr Mellati referred Mr Sun to Mr D’Urso for an opinion and management.
39 On 12 January 2018, Mr Sun attended on Mr D’Urso. In his report dated 15 January 2018, Mr D’Urso stated that Mr Sun was symptomatic from a lumbosacral disc prolapse and left S1 radicular symptoms, and confirmed his treatment options included conservative management, targeted injection with Marcaine steroid or surgical intervention. Mr D’Urso confirmed he had indicated to Mr Sun that a microdiscectomy procedure would be appropriate if other measures failed to relieve his symptoms.
40 On 13 February 2018, Mr Sun underwent a CT-guided lumbar epidural injection, performed by Dr Marcus Loff, radiologist, of 1ml of Celestone and 0.5 ml of Marcaine.
41 On 26 February 2018, Mr Sun presented to the Emergency Department at Knox Private Hospital with a headache. He underwent a CT scan of his head and cervical spine which demonstrated evidence of multi-level disc degeneration and a “moderate central disc protrusion at C3-4 and there are small disc bulges and protrusions at C4-5 and C5-6”.
42 Whilst at the Knox Private Hospital, Mr Sun consulted physician, Dr Farshad Ghazanfari. In a report dated 7 March 2018, Dr Ghazanfari stated that he did not believe Mr Sun’s neck pain and headache were secondary to a complication of the recent epidural injection, and that his spine symptoms required a comprehensive multidisciplinary approach.
43 In March 2018, Mr Sun said he commenced a part-time real estate course. He said his pain levels were such that he found it very difficult to study and concentrate. Mr Sun said that he failed the first part of the course, and thereafter did not complete it.
44 In April 2018, Mr Sun had an epidural injection which provided some benefit, although soon after, his symptoms started to return. Mr D’Urso therefore recommended Mr Sun undergo a further scan.
45 On 13 April 2018, Mr Sun underwent an MRI scan of his lumbar spine which demonstrated “lumbosacral junction left paracentral and foraminal disc protrusion/extrusion with L5 and S1 radicular compression”.
46 In a report dated 1 August 2018, Dr Mellati diagnosed Mr Sun as suffering left-sided sciatica on a background of central and left L5-S1 disc bulge with pressure on left L5 and S1 nerve roots. Dr Mellati noted that Mr Sun had been under comprehensive and extensive conservative treatment including physiotherapy, acupuncture, steroid injections on two occasions and consultation with neurosurgeons. Further, he was uncertain as to whether Mr Sun’s “condition can get any worse than what it is now”.
47 On 27 August 2018, Mr D’Urso wrote to Mr Sun’s solicitors. In his report, Mr D’Urso diagnosed Mr Sun as being symptomatic from an L5-S1 disc prolapse with evidence of left S1 and L5 nerve root impingement. Mr D’Urso noted that whilst back surgery had been approved, Mr Sun did not wish to proceed with surgery. Further, Mr D’Urso noted that Mr Sun had a partial incapacity for work which would prevent him from performing unrestricted physical or manual employment. Mr D’Urso stated that Mr Sun should not be required to perform repetitive bending, twisting or lifting activities, should not lift weight from below the knee or above the shoulder, should avoid lifting weight in excess of five to ten kilograms and should require the ability to ambulate freely in the workplace and to avoid sitting and standing postures in excess of 30 minutes.
48 On 17 October 2018, Mr Sun underwent an MRI scan of his sacroiliac joint which demonstrated bilateral sacroiliitis.
49 In January 2019, Mr Sun was referred to rheumatologist, Dr Daniel Lewis, regarding his ongoing lower back pain. In a report dated 30 January 2019, Dr Lewis stated he had observed that Mr Sun has atypical movement patterns and that standard physiotherapy has not addressed the issue. Dr Lewis requested funding for a ten-session Feldenkrais physiotherapy program.
50 In April 2019, Mr Sun considered enrolling in a cyber security course offered at TAFE. He said that as he did not have the relevant pre-requisite skills and qualifications, his enrolment application was rejected.
51 On 24 April 2019, Dr Mellati referred Mr Sun to psychologist, Ms Fiona Lian.
52 On 8 May 2019, Dr Mellati wrote to Allianz requesting funding for Mr Sun to take taxis to medical appointments where the commute time was more than 20 minutes. Dr Mellati noted that Mr Sun was only able to drive himself for less than 20 minutes.
53 In August 2019, Dr Mellati provided a report to Allianz. In his report dated 30 August 2019, Dr Mellati diagnosed Mr Sun as suffering left-sided sciatica on a background of severe L5-S1 disc bulge and compression of L5 and S1 nerve roots and bilateral sacroiliitis. He noted that despite conservative management over the past two years, Mr Sun had failed to fully recover, and that in order to improve his chances of recovery, he needed to undergo an operation on his lower back.
54 Mr Sun said he is not willing to have the surgery, as he understood from Mr D’Urso that although it would help his pain, it would not increase his work capacity and it would involve a six-month recovery period. Further, Mr Sun said he considered surgery a riskier procedure than a cortisone injection, and as he believed he had an adverse reaction to it, he was concerned to undergo surgery.
55 In 2019, Mr Sun was transferred from the Good Guys in Chadstone to the Good Guys in Pakenham as it was closer to his home. He said it was at this time that he agreed to increase his working hours from eight hours per week to nine hours per week, working on Mondays, Tuesdays and Thursdays.
56 Mr Sun continues to see Dr Mellati approximately once a month. Dr Mellati prescribes Mr Sun Celebrex, Cymbalta and Temaze medication. In a report dated 4 August 2020, Dr Mellati stated, in his opinion, Mr Sun was unfit for his pre-injury employment, but was fit for modified duties as a part-time salesperson, working three days a week, three hours per shift. Dr Mellati stated that Mr Sun also had the capacity to perform alternative employment as an accounts clerk, payroll clerk and customer service officer, provided such positions were offered on a part-time basis.
57 Mr Sun also sees Ms Lian once or twice a fortnight. In a report dated 7 August 2020, Ms Lian diagnosed Mr Sun as suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Ms Lian was of the opinion that if Mr Sun’s pain could be minimised through physiotherapy, it could help to improve his psychological wellbeing. Ms Lian recommended Mr Sun be offered a full-time alternative role with the Good Guys, working as an administrative clerk or customer service officer.
58 Mr Sun currently works nine hours per week at the Good Guys store in Pakenham on light duties. He said this store is closer to his home than the Chadstone store. Mr Sun said he takes breaks as he needs and avoids lifting heavy items. He said he is in pain during the working day and is on his feet for most of the shift, which causes him discomfort.
59 Mr Sun said that after work, he goes home, has lunch and then lies down for about two to three hours. He said if he does not get that time to lie down each day, he experiences really bad pain and pins and needles down his leg. Mr Sun said he does not believe he could increase his hours beyond the nine hours he is currently working.
60 Mr Sun takes the following medications:
· Panadol (four to eight tablets a day)
· Nurofen (four tablets a day, about three days a week)
· Celebrex (one tablet a day)
· Cymbalta (one tablet a day)
· Temaze (as required for sleep)
· Duloxetine
61 Mr Sun said he continues to suffer back pain and pain in the outer side of his left leg. He said he has numbness and pins and needles down the outside of his left leg and that his back spasms. Mr Sun said his pain fluctuates in severity and sitting and standing for prolonged periods aggravates his pain. He struggles to weight bear on his left leg.
62 Mr Sun said that he avoids driving long distances and now usually drives only locally.
63 Mr Sun said the most efficient way for him to resolve his pain is to lie down. He said that over the course of a week, he roughly has two bad days where he needs to lie down for the whole day. He also said he has two good days per week.
64 Mr Sun said his sleep is affected. He has difficulty going to sleep and staying asleep. He wakes up after a few hours in pain and is often tired and rests during the day.
65 Mr Sun said his wife and parents continue to do most of the cooking, housework and gardening. He said he will do what he can and that some days are better than others.
66 Mr Sun said it upsets him greatly that he rarely plays with his son who is a very active boy. Mr Sun said his son likes to play ball games such as soccer and that he finds it difficult to lift him up or bend down and play with him on the ground.
67 Mr Sun also relied upon an affidavit from his wife, Ms Han, in support of his application. In her affidavit affirmed 5 August 2020, Ms Han detailed the changes she has observed in her husband since the workplace injury. She noted he was very active prior to his injury in May 2017 and that she observed him to move freely, and did not see him take medication or go to the doctor. Ms Han confirmed that prior to his injury in 2017, her husband did most of the cooking and cleaned most of the house while she mainly looked after their son.
68 Ms Han said she now does most of the cooking, cleaning, gardening, including mowing the lawn, and looking after their son.
69 Ms Han observed that Mr Sun lies down a lot and uses an electric blanket to help with his back pain. She has seen him struggle to get in and out of her car and that he uses a small pillow to support his lower back when he is in the car. She drives if they travel long distances, whereas before the injury he would have driven.
Medico-legal evidence
70 Mr Sun was originally examined by consultant occupational physician, Dr David Barton, at the time he suffered his previous work injury. For the purpose of this claim, Dr Barton examined Mr Sun in December 2019. In his report dated 20 December 2019, Dr Barton detailed the history he obtained from Mr Sun and noted that Mr Sun complained his pain was made worse with sitting, standing, carrying any item and bending, and that he suffered pain extending down the posterolateral aspect of the left leg, down to the front of the shin, into the top of the foot.
71 Dr Barton was of the opinion that there were considerable inconsistencies between Mr Sun’s reported level of pain and objective findings on examination. He diagnosed Mr Sun as suffering a mild mechanical lower back problem. Dr Barton stated he did not believe that the shifting of boxes in May 2017 caused the radiological findings which appeared to have been pre-existing for the preceding eleven years. He stated that he believed Mr Sun had recovered from this further episode and that Mr Sun’s complaints of severe and disabling symptoms did not fit with a straightforward physical situation.
72 Dr Barton noted that at the time, Mr Sun was working three hours per day, three days per week. He also noted there had been periods of up to one month when Mr Sun could not work at all. However, as Dr Barton did not believe there was any convincing evidence of any physical incapacity, he was of the opinion that Mr Sun could work with a different employer doing a variety of jobs in suitable employment.
73 In his second report dated 17 July 2020, Dr Barton noted that when he saw Mr Sun, he failed to identify any significant ongoing organic pathology and that there were a number of features indicating a degree of conscious overlay. Further, Dr Barton considered the proposed employment options detailed in a vocational report from Recovre dated 16 June 2020, which proposed the following jobs as suitable: accounts clerk, payroll clerk, dispatching and receiving clerk, stock clerk, order clerk and customer service officer. Dr Barton stated that, in his opinion, each of these jobs were within Mr Sun’s physical capabilities and there was no medical reason why he could not undertake these roles on a full-time and sustained basis.
74 In February 2020, Mr Sun was examined by neurosurgeon, Dr Graeme Brazenor. In his first report dated 14 February 2020, Dr Brazenor summarised the medical reports and radiology reports relevant to Mr Sun’s back injury originally sustained in 2005, as well as his injury sustained at work in May 2017.
75 Dr Brazenor was of the opinion that in May 2017, Mr Sun re-injured his previously severely injured L5-S1 disc. Further, Dr Brazenor was of the opinion that, as a result of this, Mr Sun will never return to a job involving repeated bending at the waist, accessing of levels less than 600 millimetres above the surface on which he stands, or lifting more than 10 kilograms, with such lifting permitted only when it did not involve bending at the waist.
76 However, Dr Brazenor considered that Mr Sun’s contemporary status was difficult to assess. Dr Brazenor considered that there were clear signs of gross functional overlay during the physical examination on 14 February 2020 and, in his opinion, Mr Sun’s allegations of pain and physical limitations were incompatible with the lack of organic physical signs on examination. Dr Brazenor thought it highly likely that Mr Sun was “perpetrating a ruse as to his alleged ongoing symptoms and disability”.
77 In his second report dated 18 July 2020, Dr Brazenor stated that, in his opinion, Mr Sun could perform any of the employment options detailed in the Recovre report of June 2020, on a full-time basis. Further, Dr Brazenor expected Mr Sun to work until normal retiring age.
78 In July 2020, Mr Sun was examined by occupational physician, Dr Joseph Slesenger. In his report dated 9 July 2020, Dr Slesenger outlined the history he had obtained from Mr Sun, including his previous back injury. Dr Slesenger noted that Mr Sun complained of pain at a level of 8 out of 10, with a constant pain which was dull, but occasionally sharp in character. It was noted that Mr Sun’s pain was aggravated by activity and was relieved with rest and medication. Further, Dr Slesenger noted that Mr Sun’s tolerance for standing was up to 40 minutes and sitting 20 to 30 minutes. Dr Slesenger then noted that in relation to Mr Sun’s return to work, he had struggled working up to twelve hours, with exacerbation of symptoms, and that he was currently working three hours a day, three days per week.
79 Dr Slesenger diagnosed Mr Sun as suffering a mechanical injury to the lumbar spine, aggravation of degenerative disease of the lumbar spine, with left leg radiating features and equivocal evidence of residual radiculopathy; headaches and a psychological impairment. After considering Mr Sun’s past history of lower back pain developing during the course of his employment in 2005 and the records relevant to that period, Dr Slesenger stated he was satisfied that the incident the subject of this claim, had resulted in an aggravation of pre-existing degenerative disease of the lumbar spine and that such aggravation had not yet resolved.
80 As to work capacity, Dr Slesenger stated that Mr Sun could not return to his pre-injury role, as the job demands were outside his capacity limits. Regarding alternate duties, Dr Slesenger stated if Mr Sun should become job detached, he is unlikely to be able to return to work in a role for which he has suitable training and experience on a consistent and reliable basis. Further, Dr Slesenger reviewed the proposed employment options identified in the Recovre report of June 2020 and stated that, in his opinion, Mr Sun was unlikely to be able to attend any of the proposed roles on a consistent and reliable basis.
81 In July 2020, Mr Sun was examined by neurosurgeon, Dr Hazem Akil. In his report dated 20 July 2020, Dr Akil detailed the history he obtained from Mr Sun, including his previous work injury and his current complaints of pain. On examination, Dr Akil noted a limited leg raise, reduced sensation in the left L5 and left S1 dermatome, and an absent left ankle jerk.
82 Dr Akil diagnosed Mr Sun as suffering an aggravation of the discogenic pain and was of the opinion that his current symptoms were caused by the duties Mr Sun performed at work in May 2017. Dr Akil was of the opinion that Mr Sun’s prognosis was poor, given the length of time he has had these symptoms.
83 As to work capacity, Dr Akil stated Mr Sun should not return to his pre-injury duties but that, in theory, he could do sedentary-type work, provided he was able to alternate between sitting and standing. Further, Dr Akil reviewed the proposed employment options identified in the Recovre report of June 2020, and stated that, in theory, Mr Sun could perform those roles, provided he was allowed to alternate between sitting and standing every 30 to 45 minutes.
Mr Sun’s credibility
84 I considered Mr Sun an impressive witness who provided simple and straightforward answers to the questions asked of him. Although an interpreter was available to assist him when needed, the majority of Mr Sun’s evidence was given in English.
85 The defendant challenged Mr Sun’s claim that he was pain free after receiving treatment in China. I accept Mr Sun’s evidence in response to such questioning. Mr Sun stated his back pain had gone away, but he was not as strong as before and had a reduced range of motion. I considered the acknowledgement of some remaining restriction in his back an example of Mr Sun’s credibility. I further note that Mr Sun’s ability to work full time for six years thereafter, without the need for medical treatment, a verification of his claimed dramatic improvement after the treatment in China.
86 Overall, I accept Mr Sun as a genuine witness and have no hesitation in accepting his evidence in its entirety.
Aggravation
87 As Mr Sun had previously injured his lower back in 2005, in assessing his claim, I must compare his pre-existing condition, with the aggravated state. Pursuant to the well-known principles enunciated in Petkovski v Galletti,[1] I must consider only the consequences arising from the aggravation.
[1][1994] 1 VR 436
88 The defendant accepted Mr Sun suffered an injury at work in 2017 and that this had resulted in an aggravated impairment. However, it challenged Mr Sun’s claim, on the basis that the consequences arising from the aggravated impairment were the same as those which it claimed persisted following the 2005 work injury. I do not accept this.
89 Mr Sun suffered a pre-existing lower back injury, which in 2008 was so significant it caused him ongoing pain and prevented him from working. However, I accept that after receiving treatment in China, Mr Sun’s pain resolved. I also accept that, notwithstanding Mr Sun still had some restriction in the movement of his back and he did not feel as strong as before, he was able to resume full-time employment, did a full range of household duties and had resumed some leisure activities, save that he no longer played badminton at a competitive level. Therefore, in comparing Mr Sun’s condition in the period immediately prior to May 2017, I am satisfied there was minimal impairment arising from his pre-existing lower back injury.
Loss of earning capacity
90 To succeed in his application, Mr Sun has the onus of satisfying me that, as at the date of hearing, as a consequence of his aggravated spinal impairment, he has sustained a loss of earning capacity of 40 per cent or more, and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more.
91 In determining Mr Sun’s claim for loss of earning capacity, I must compare what he is currently earning, or capable of earning in suitable employment, with his “without injury” earning capacity.
92 The parties agreed that Mr Sun’s “without injury” earning capacity figure was $1,458 gross per week, with the 60 per cent threshold being $875 per week.
93 What constitutes “suitable employment” is an objective test, which looks at the worker’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience, and whether the work is a reasonable distance from the plaintiff’s place of residence.[2] In Barwon Spinners Pty Ltd & Ors v Podolak,[3] the Court of Appeal stated that such an assessment is concerned with a plaintiff’s physical capacity for work, and is not concerned with whether employment will or will not be obtained.[4]
[2]Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33 at paragraphs [25] and [28]
[3]Ibid
[4](Ibid) at paragraph [27]
94 In the Court of Appeal decision of Harris v DJD Earthmoving Pty Ltd,[5] it was noted that, under s134AB of the Accident Compensation Act 1985,[6] the Court must consider what work the plaintiff might, in the foreseeable future, be able to do on a regular and consistent basis.[7]
[5][2016] VSCA 188 (“Harris”)
[6]The equivalent provision to that being considered in this case under s325 of the Act
[7]Harris (ibid) at paragraph [49]
95 Mr Sun gave evidence that he was barely coping with the nine hours a week he currently performs. Mr Sun said that after work, due to his increased pain, he has to go home and lie down. If he does not, he suffers increased pain and pins and needles in his leg. As I accept Mr Sun as a reliable and creditworthy witness, I give great weight to his evidence on this.
96 I consider it significant that Mr Sun was unable to cope when he attempted to work twelve hours per week, and that this resulted in a significant increase in his pain, such that he ceased work for one month thereafter.
97 Also relevant to Mr Sun’s work capacity, is my acceptance that his sleep is interfered with, his pain is aggravated by prolonged sitting and standing, and that he avoids driving long distances. I also note that he takes painkilling medication on a daily basis.
98 Dr Mellati is Mr Sun’s general practitioner, who has seen him regularly since May 2017. I consider that he is the doctor who knows Mr Sun best. I note that Dr Mellati continues to certify Mr Sun as capable of working only nine hours per week in modified duties.
99 Mr Sun relied upon Dr Slesenger, who was of the opinion that Mr Sun had no capacity to work in any form of suitable work on a reliable and consistent basis.
100 The defendant criticised Dr Slesenger for only summarising the reports which had been obtained by Mr Sun’s solicitors, and not summarising any of the reports he had been provided which had been obtained by the defendant. In this regard, the defendant described Dr Slesenger as “similar to an advocate”.
101 I note that Dr Slesenger’s summary of reports was from Mr Sun’s treating doctors, as well as one medico-legal report from Dr Castle, obtained by Mr Sun’s previous solicitors in relation to his prior work injury. This summary is cursory at best and contains no evaluation by Dr Slesenger of the opinions contained within those reports. I therefore consider it is for noting only and does not undermine the detailed opinion Dr Slesenger otherwise offers.
102 I note that Dr Brazenor and Dr Barton both considered Mr Sun was exaggerating his claimed consequences and that he is capable of working full time in suitable employment. Their assessment of Mr Sun does not accord with my acceptance of his claimed consequences and, therefore, I gain little assistance from their reports. I also note that neither of these doctors refer to Mr Sun’s failed attempt to work twelve hours per week. I consider this an important aspect of my determination of Mr Sun’s work capacity, and the omission of this from their reports further limits the value of their opinions.
103 The defendant also relied upon the opinion of Dr Akil, who considered that Mr Sun had the theoretical capacity to work full time, in suitable employment, provided he was able to sit and stand as required every 30 to 45 minutes. However, I also note that Dr Akil does not report on Mr Sun’s failed attempt to work twelve hours per week and does not even refer to Mr Sun’s current working hours. I therefore consider Dr Akil’s opinion on Mr Sun’s work capacity is also compromised and that his opinion on Mr Sun’s theoretical capacity is unrealistic.
104 Considering all the evidence, I am satisfied that due to his aggravated spinal impairment, arising from the work injury in 2017, Mr Sun is currently working to his maximum capacity. I am satisfied he is incapable of working any extra hours on a reliable and consistent basis. I therefore accept that Mr Sun suffers the requisite 40 per cent loss.
105 I am also satisfied that this pecuniary loss to Mr Sun is permanent and will continue through the foreseeable future.
106 Once the threshold of 40 per cent reduction in the earning capacity test has been met, it is still necessary for me to consider whether the consequences to Mr Sun meet the “very considerable” test.[8] Given my acceptance that Mr Sun’s aggravated spinal impairment restricts him to working, at best, a maximum of nine hours per week in suitable employment, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as “very considerable”.
[8]Section 325(2)(c) of the Act
107 As Mr Sun has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his aggravated spinal impairment, it is not necessary for me to consider separately his pain and suffering consequences.[9]
[9]Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority v Abdulle [2009] VSCA 170 at paragraph [63]
108 In view of the above, I grant Mr Sun leave to commence common law proceedings for pain and suffering and loss of earning capacity damages.
109 I will make the consequent orders.
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