Testro v Brendan Davidson Pty Ltd
[2011] VCC 1470
•3 October 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT LATROBE VALLEY
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00662
| DANIEL TESTRO | Plaintiff |
| v | |
| BRENDAN DAVIDSON PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 15 September 2011 |
| DATE OF JUDGMENT: | 3 October 2011 |
| CASE MAY BE CITED AS: | Testro v Brendan Davidson Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1470 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the left lower limb – worker aged under twenty six – loss of earning capacity – pain and suffering.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with | Slater & Gordon |
| Mr J Goldberg | ||
| For the Defendant | Mr P Elliott QC with | Minter Ellison |
| Mr J Batten | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to Section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment on 9 February 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in Section 134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning permanent serious impairment or loss of a body function.
4 The impairment of body function relied upon is the left lower limb.
Outline of Section 134AB
(i) Apart from being a serous injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
(ii) The impairment of the body function must be permanent in the sense of likely to last for the foreseeable future.
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, sub-sections 19 and 38(e) impose specific burdens in relation to a claim for loss of earning capacity.
(iv) By subsection 38(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which when judged by cases in the range of possible impairments may be fairly described at the date of the hearing as at least “very considerable” and more than “significant” or “marked”.
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
(vi) When a worker is aged twenty six years or under at the date of injury, pursuant to Section 134AB(38)(e)(i) of the Act, he must establish that at the date of the hearing he has a loss of earning capacity of forty per cent or more. Further he must establish pursuant to subsection (e)(ii) that he will after the date of the hearing continue to have a permanent loss of earning capacity which will be productive of a financial loss of forty per cent or more. Subsection (f) which relates to older workers and requires consideration of income from personal exertion in the three years before and three years after the injury does not apply.
(vii) Consideration must also be given pursuant to subsection (g) of the reasonableness of the plaintiff’s attempts to rehabilitate or retrain.
(viii) Subsection 38(h) provides that consequences which are psychologically based are to be totally disregarded in paragraph (a) cases.
(ix) I have applied the principles identified by the Court of Appeal in Barwon Spinners v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
6 The plaintiff is presently aged twenty seven, having been born on 12 December 1983. He lives in Garfield with his partner and two daughters aged eleven and seven.
7 The plaintiff left school after Year 9. In about 2004, he obtained certificates in arboriculture after a four year traineeship. He also holds a heavy rigid truck licence and certificates to operate a chain saw, wood chipper and tree stump grinder.
8 The plaintiff was not a very good student. He has basic writing, arithmetical, grammar and reading skills. He also has very basic computer skills and has never had an office or clerical job.
9 Since leaving school, the plaintiff has worked as a factory hand and a truck driver. He also worked as a furniture polisher, undertaking an apprenticeship in that trade for about seven months. However, the plaintiff has mainly worked as an arborist, contract labourer and tree stump remover.
10 The plaintiff started work with the first defendant in about October 1998 on a casual basis, working full time for up to forty hours per week. He worked for the first defendant exclusively during spring, summer and early autumn, during which time there was a lot of work.
11 Work as an arborist was physically demanding and very heavy. The plaintiff worked with the first defendant on all aspects of tree maintenance, lopping and removal in a variety of situations. Frequently he climbed trees, using a harness, and he worked in awkward positions, suspended high above the ground.
12 Often the work had to be carried out with great caution to avoid falling branches and damage to adjacent properties. Also, the work involved the use of chainsaws cutting up tree limbs and branches.
13 The first defendant took on big jobs throughout the eastern suburbs and West and South Gippsland, removing very old established trees. The first defendant was involved in tree planting of numerous varieties on small and large acreages.
14 Brendan Davidson and the plaintiff worked alone and from time to time, casual labourers were hired for some jobs. The plaintiff drove a truck and operated chainsaws and a large wood chipper.
15 From about 2002, the plaintiff also worked for himself as a tree stump remover and purchased a tree stump grinder. He sub-contracted use of the machine and himself, to remove tree stumps at numerous locations throughout the eastern suburbs and Gippsland. At the same time, he worked for the first defendant on a casual basis working about twenty eight hours per week and often did sub-contracting work for the first defendant.
16 In cross examination the plaintiff confirmed that in his own business he did about one job a week, depending on the time of the year. The first defendant was the plaintiff’s main customer and the work for it was the reason the plaintiff started his business.
17 For the two to three years before the said date, the plaintiff had developed his business and he had some steady customers whom he obtained through advertising in the paper. The plaintiff disagreed that his business earnings did not get particularly high before he was injured.
18 In re examination, the plaintiff confirmed he was earning $100 per hour as a sub-contractor. He had started his business in November 2004 and it ceased operation on the said date. Prior to that time, the plaintiff thought the level of business was increasing.
19 On the said date, at the first defendant’s premises in Tynong, when pushing and manoeuvring a single axel trailer, the front jockey wheel suddenly, and without warning, collapsed, crushing the plaintiff’s left foot (“the incident”).
20 Following the incident, the plaintiff was taken to the emergency department at Warragul Hospital where he was x-rayed and multiple fractures of the metatarsals of the left foot were shown.
21 The plaintiff’s left foot was put in plaster and he was given crutches. He was later reviewed by another orthopaedic surgeon, Mr Owen, who advised that surgery was not required. The plaintiff’s foot remained in plaster for about eight weeks.
22 In about April 2007, the plaster was removed and the plaintiff was referred to Mr Edwards, physiotherapist, in Pakenham. At that time, the plaintiff was having significant problems with his left leg and foot and experienced continuous pain, the severity of which fluctuated. Further, he had ongoing persistent swelling.
23 The plaintiff had difficulty walking and he was not able to drive a car. Despite physiotherapy treatment, his left foot and lower leg failed to improve and he had ongoing pain when trying to walk.
24 On 31 May 2007, the plaintiff underwent further x-rays. He was unable to return to work. He was referred back to Mr Owen, whom he saw again in June 2007.
25 Mr Owen viewed the x-rays and told the plaintiff he felt the fractures had healed. He also told the plaintiff he felt that the plaintiff was having problems with his left foot and lower leg, due to another condition which had developed - a reflex sympathetic dystrophy (“RSD”). The plaintiff also experienced swelling with changes in colour and temperature in his foot.
26 The plaintiff sought a second opinion from another orthopaedic surgeon, Mr Malcolm Thomas, whom he saw on 20 August 2007.
27 Mr Thomas considered the plaintiff developed Regional Pain Syndrome (“RPS”) as a result of the incident and recommended referral to a pain management specialist for further treatment, advice and management of his injuries.
28 The plaintiff continued to experience ongoing, and at times severe symptoms. His left foot was often cold, swollen, sweaty and discoloured. He had recurring episodes of cramp, gross sensitivity and electric like shocks in the left foot. He had difficulty walking and walked with a limp. His movements and activities were severely restricted.
29 The plaintiff was referred to the Victorian Rehabilitation Centre where he was treated by Dr Clements, pain management specialist, who recommended medication, including OxyContin and Lyrica.
30 Despite treatment, there was no improvement and the plaintiff’s symptoms seemed to be getting worse with ongoing pain, the severity of which fluctuated for no apparent reason.
31 The plaintiff’s left foot became hot, sweated excessively and was reddish and sometimes bluish in colour. He also had swelling, numbness and “pins and needles” in his foot.
32 After some time, Dr Clements felt he could not help the plaintiff any more and referred him to Dr Blombery, whom the plaintiff first saw in February 2008.
33 Dr Blombery advised the plaintiff he was suffering from Complex Regional Pain Syndrome (“CRPS/the condition”), affecting the left foot/lower leg. Dr Blombery recommended Epilim and exercising the left foot as much as possible.
34 Under Dr Blombery’s care, the plaintiff was then prescribed Clonidine to control pain. In April 2008, the plaintiff was admitted to the Avenue Hospital, where he was treated with a lumbar sympathetic infusion of local anaesthetic and remained in hospital for six days (“the first procedure”).
35 After the first procedure, initially there was considerable improvement in the plaintiff’s symptoms and function of his left foot but that improvement was short lived. His foot was “great” whilst he was in hospital but then the pain just slowly gradually returned. He experienced significant recurrence of symptoms and was treated with other medication which provided little sustained improvement in his symptoms.
36 Dr Blombery recommended further treatments including the medication, Catapres, and lumbar sympathetic blocks. In August 2008, the plaintiff was again admitted to the Avenue Hospital and underwent intravenous lignocaine ketamine infusions and remained in hospital for about ten days (“the second procedure”).
37 The second procedure provided no major long term benefit to the plaintiff’s symptoms. Four days after the second procedure, the plaintiff’s condition significantly improved for about ten days and then the pain returned. The plaintiff continued to have ongoing pain in his left foot and he used Epilim and Catapres for pain control. Later, Dr Blombery recommended Norspan patches to attempt to control the plaintiff’s pain.
38 In early 2009, the plaintiff underwent an MRI scan, which he understood was an effort to try and explain the continuing severe symptoms in his left foot.
39 In his recent affidavit, sworn in August 2011, the plaintiff deposed that he continues to experience ongoing symptoms and pain affecting his left foot. He is never free of pain and other symptoms, which vary in intensity and are affected by his activities, especially walking and being on his feet for prolonged periods.
40 There is always a level of pain in the plaintiff’s left foot. Also, he experiences episodes of numbness and “pins and needles”, which come and go. At times, these symptoms are quite severe and use and movement of his left foot is restricted.
41 Because of these ongoing symptoms and fluctuating pain, the plaintiff is unable to rely upon his left foot and leg. Some days are better than others, but generally, his left foot is unreliable because of pain.
42 The pain and other symptoms can occur for no apparent reason. At times, if the plaintiff stands for too long, walks excessively or tries to climb stairs or walk over sloping, uneven or undulating ground, the pain and symptoms can be much worse.
43 Some days are easier than others because the pain and symptoms are less severe but the plaintiff is never free of pain. He is also at risk of sudden, unexpected attacks of numbness and “pins and needles”.
44 In examination in chief, the plaintiff confirmed that his left foot condition fluctuated. Every day was different, depending on the day and the patch he was on, whether it was “wearing in or wearing off”. Whilst in the witness box, the plaintiff described his left foot was pretty sore and very hot.
45 In cross examination, the plaintiff confirmed that he was experiencing pain at that time. He did not bring a walking stick to court, because he felt he did not need it.
46 The plaintiff is on a medium dosage of Norspan patches of 10 milligrams, one per week. That level relieves the pain enough and lets him get on with his daily activities. He also takes the 200 milligrams of the antidepressant, Sertraline.
47 The plaintiff confirmed his present medication regime was helpful and constant it is the best out of everything he has tried. Since the incident, medications have helped control and lessen the level of the plaintiff’s pain but the effect of them can vary greatly. However, the medication affects his memory and he has difficulty concentrating. Constantly he is definitely very drowsy.
48 In the past, the plaintiff has been prescribed OxyContin and Cymbalta by Dr Blombery and he has also been prescribed Endep, Lyrica and other medications. Generally, those medications have failed to completely relieve the plaintiff’s pain and he has experienced persisting ongoing and fluctuating pain in his left foot since the incident.
49 The plaintiff is presently under the care of Dr Islam whom he sees monthly for prescriptions. Although he is addicted to the Norspan patches, the plaintiff has not discussed changing this treatment with her because the patches “are doing the best job so far”. The plaintiff and his doctors have tried everything and “that is where they have got to and that is the best for the less side effects”. Although the plaintiff feels uncomfortable being addicted to the drugs, he “honestly has no choice but to use them. “
50 The plaintiff’s left foot inflames, it cramps up and gets horrible pins and needles. It will turn purple if he has a hot shower and it is very hard to keep cool in summer and warm in winter. The drugs do not help the condition; they help the pain.
51 The plaintiff is at risk of sudden unexpected flare ups of pain, and also his left leg is weaker. The muscles in his left thigh and calf have become weaker and wasted because he tends to favour the left leg, placing greater reliance on the right, because he cannot walk properly on the left foot. Sometimes his left foot is less painful than at other times and that depends upon how much time he spends walking and undertaking activities.
52 The plaintiff exercises his foot, stretching it from time to time and walking around a bit but walking is painful. Sometimes he has to support himself on the furniture when walking around at home.
53 The plaintiff agreed that his foot has gradually got a bit better but every day was different and the pain comes and goes. He would love for his foot to get better so he tries to do more on it.
54 The plaintiff has been unable to return to work with the first defendant, or any other kind of work, because of his continuing symptoms and left foot problems.
55 Because of the unpredictable pattern of the pain and symptoms the plaintiff experiences, he cannot return to his pre-injury work. The plaintiff finds that very disappointing and frustrating and is worried about the future and supporting his family.
56 Also, the plaintiff cannot undertake work which requires him to be on his feet, standing for a prolonged period, or which requires him to walk on or negotiate rough uneven ground or sloping inclined surfaces.
57 Further, tasks involving squatting or crouching are difficult for the plaintiff and as a result, he is not capable of doing any kind of work he did in the past, or any physical unskilled or semi skilled work.
58 The plaintiff really does not know what type of work he could return to, having always done physical manual work, mainly outdoors
59 The plaintiff was referred to the rehabilitation provider Recovre and has been assessed by it on a number of occasions. He was provided with work placement and employment advice but no work for which he was suited has been found in and around the Garfield area.
60 The plaintiff has no clerical or office experience or experience in administration or computer based work. He can turn on a computer and get on the internet, but he has no skills or experience in using the computer based business programs.
61 In examination-in-chief, the plaintiff was asked about the four jobs suggested by Recovre.
62 The plaintiff could not do the control room security officer job in Melbourne. He has no experience in that sort of work. His ability to drive is not constant and definitely varies and he cannot tell when he would be able to drive. The morphine affects his driving, making him very drowsy and uncoordinated. He could not drive to Melbourne on a regular basis.
63 The plaintiff disagreed that he had a strong presentation or strong and open communication skills. He had difficulty communicating because of his medication. He would not be capable of trouble shooting and problem solving. Possibly, some days he could work in the control room, but every day is different and some days he does not sleep. He could not commit to working, Monday, Wednesday, and Friday. It just depended on how he felt, due to the ups and downs of the pain and the medication.
64 The plaintiff probably does not have “an excellent telephone manner”. He does not have a security guard or control room or monitoring centre licence. The plaintiff would not be able to operate a forklift with his left foot. In terms of being a delivery driver, it would depend on the drive and its distance, and depend on the time of day, and the plaintiff could not do this job every day.
65 The plaintiff did not regard himself as having good computer skills. He agreed he could do simple things on the computer and that a job involving a computer could be within his capabilities but he then said “Like, are you allowed to fall asleep during the day, are you allowed to rest at any point?”
66 The plaintiff he did not know what good numeracy and literacy skills meant. His reading is not bad and his writing is a bit messy.
67 The plaintiff thought probably he could not work as a mobile café manager as he could not commit to working every day between 7.00 am and 2.30 pm.
68 In cross examination, it was suggested to the plaintiff he could do something part time. He said he would like to assume so, “but, you know, with the fluctuation of pain and the depression [he] has been suffering it (work) has not been a concern”.
69 The plaintiff has not really thought about a job in the future when the case is over. He has not looked in the paper and he agreed in cross examination he was just sitting at home on his two acre block while his partner went to work and he was the house husband doing the housework.
70 On occasion, the plaintiff has driven his partner forty minutes to her work, but he does not often drive her and pick her up from work.
71 The plaintiff has not thought about going into another business which was not physical because he has no funding to start it up and no one would give him funding. He has not sold the tree stumper.
72 Probably a few weeks ago, Dr Islam asked the plaintiff if he had looked at getting work but the conversation did not go very far. The plaintiff has lived in the Garfield area for five years but he does not really know many people. There are limited business and work opportunities in the local area.
73 The plaintiff did not know what he was planning to do when the case was over. He honestly had not thought about it and “had plenty of other things to think about than that; namely, the pain [he] dealt with every day and heaps of stuff”.
74 The plaintiff has been advised by his treating doctors that his problem with the left foot is permanent and no significant further improvement can be expected. He has been told to try to live with it and get by with the ongoing problems as best he can.
75 Frequently, the plaintiff’s sleep is disturbed by pain. He experiences a burning like pain in his left foot which disrupts sleep, making it difficult for him to get a good night’s rest. Often medications fail to relieve his pain and allow him to sleep properly.
76 In examination-in-chief, the plaintiff confirmed that his sleeping patterns are different every day, depending on the level of his pain and the drugs.
77 Before the incident, the plaintiff was a very active person. He had a young family to support and believed he was a good worker and he enjoyed his job, which he found interesting. He was physically strong, fit and capable of doing all aspects of his work without difficulty.
78 In his first affidavit, the plaintiff deposed that he lived on a two acre block which he struggled to upkeep. He relied on others to complete any maintenance, clearing and tidying work. His partner’s father helped maintain the property and the plaintiff found this loss of independence embarrassing.
79 The plaintiff was severely restricted in playing with his two young children. Visiting the beach or walking in the national park was very difficult for him because of the disability and loss of function in his left leg and foot.
80 The plaintiff deposed that he drove generally locally and then for only ten to fifteen minutes before experiencing troubling and persisting symptoms and problems in his left foot and lower leg. He was unable to stand for long periods and needed to change his position frequently. He had difficulty negotiating steps, stairways, hilly, sloping, rough and uneven ground. Attempting to walk and negotiate such terrain was very difficult, causing him to limp
81 In examination-in-chief, the plaintiff said that he does things around the house, like getting the children ready to go to school. He does what he needs to do. He does washing and vacuuming. He agreed definitely there were good and bad days and on the good days he does a little bit extra. He is not able to predict how his foot will be.
82 In cross examination, the plaintiff confirmed he does not do any maintenance around the property, as he and his partner are only renting. The plaintiff plays on the computer, watches movies and does a bit of housework and washing.
83 The plaintiff does not do any work in the shed. He does not use the ride-on mower. His partner mows the lawns and enjoys doing so. The plaintiff denied that he had ever been paid cash to mow other people’s lawns. He is not able to go up ladders at all and since the incident, he has not worked on the roof.
84 The plaintiff is unable to use the whipper-snipper. He does not feel he should, because with everything extra he does, his foot just causes more pain. He is unable to cut firewood.
85 The plaintiff’s father-in-law installed the trampoline at the plaintiff’s premises. He gives the plaintiff a lot of help around the house, as he is very handy. The plaintiff’s father-in-law also runs a car restoration business out of the plaintiff’s shed. The plaintiff sits and watches him work and can pass him tools here and there but the plaintiff does not work on the cars.
86 The plaintiff had not ridden motorbikes since the incident.
87 The plaintiff and his family have five dogs. The plaintiff feeds them but he does not walk them. His partner works at a pet resort in Beaconsfield. The plaintiff is not that keen on the dogs and “has been forced into loving them”.
88 The plaintiff has a trailer and has been to Dandenong to pick up some dog cages for his partner. She did the heavy lifting of the cages and she then put the pavers on the ground before erecting the kennels at their rental property. The plaintiff does not groom the show dogs.
89 The plaintiff’s mood and behaviour have changed because of his injury and the ongoing symptoms and problems. Since early 2008, he has been prescribed antidepressant medication to help with mood swings. Too often there have been episodes of anger, frustration – for example, sudden bursts of anger towards his partner and their children.
90 About a year ago, the plaintiff saw a psychologist, Mr Reeves, in Warragul for counselling over about a month. During that time, they discussed the plaintiff’s behaviour. Mr Reeves taught the plaintiff “how to deal with it and spoke to him about life and stuff”.
91 The plaintiff does not go out really and he does not have friends to socialise with. He goes out occasionally with his father and his partner’s father.
Summary of the Plaintiff’s Income
1 Income from the First Defendant
Financial Gross Tax Total Source Year
2004 $20,569 $3,523 PAYG summary – OCMC Plaster Products
2004/05 $23,624 $3,928 Davidson’s Tree Services
– Tax Returns
2005/06 $25,321 $4,215 $25,321 As above 2006/07 $27,623 $4,438 $27,623 As above 2007/08 $4,785 $605 $22,834 Davidson’s Tree Services
$21,319 $2,540 VWA
2008/09 $26,510 $2,882 $26,510 VWA
2009/10 Taxable Income $23,763
2010/11 $30,084 $3,325 $26,334 As above 2 Business Income
2005
$10,630 Total business income $21,179 Total business expenses $10,549 Loss (Depreciation: $9,770) 2006 $14,086 Total business income $23,438 Total business expenses $9,352 Loss (Depreciation: $11,168) $12,474 Total business income (to 9/2/2007) ($12,474 x 12/7 = $21,384)
$15,091 Total business expenses (being $26,443 less $9,352 c/f) $2,617 Loss (Depreciation $7,855)
Vocational Evidence
92 Gary Fitzsimmonds from Recovre compiled a NES re-education assessment report in March 2010.
93 The plaintiff told Mr Fitzsimmonds that he suffered very poor concentration, often sleeping two or three times through the day - a side-effect of his medication.
94 Mr Fitzsimmonds concluded at that stage it was not considered there were any suitable employment options available for the plaintiff. Due to reported pain tolerances, physical limitations with respect to sitting, standing and driving, losing concentration and constant napping, it was not considered the plaintiff was a suitable candidate for retraining.
95 Mr Fitzsimmonds was not able to identify any suitable options due to the plaintiff’s reported tolerances and limitations. It was noted the plaintiff had spent his entire working life as an arborist and all his transferable skills related to that industry. Further, the plaintiff left school at an early age to join the workforce and he was not an academically minded person and did not enjoy school in his earlier years.
96 In the absence of medical evidence supporting some form of capacity, Mr Fitzsimmonds thought he must only consider the reported tolerance and limitations. The plaintiff advised he continued to be certified unfit for all duties and his treating specialist, Dr Blombery, advised him there was nothing more he could do for him, discharging the plaintiff back to the care of his general practitioner, unless there was a change in his condition.
Treating Doctors
97 Dr Dhillon at the Bunyip Medical Centre, reported to CGU in early 2007.
98 Dr Dhillon advised that the plaintiff first consulted him on 19 February 2007 following the incident. Dr Dhillon noted x-rays revealed fractures of the first, second and third metatarsal bones at the base with minimal displacement.
99 A WorkCover certificate was issued for incapacity from 23 February to 22 March 2007 and the plaintiff was advised to keep the back slab on until review on that later date and not weight bear. Dr Dhillon thought the plaintiff’s post operative condition was good and the plaintiff was expected to be incapacitated for six to eight weeks as of March 2007.
100 Dr Dhillon noted that on 4 March 2007, the plaintiff was walking in the lounge room of his home and accidently stepped over a toy car and fell, complaining of left foot pain.
101 On examination, the plaintiff was slightly tender on the second metatarsal bone. A repeat x-ray of the left foot on 16 March 2007 did not show any change in the previous fracture.
102 As of July 2007, Dr Dhillon thought the fracture had healed reasonably and the plaintiff should be resuming work after ten to twelve weeks of rest. He noted the plaintiff had had physiotherapy and was due to see his orthopaedic specialist, who felt there was nothing impeding the plaintiff returning to his pre-injury duties.
103 Dr Dhillon concluded, there was no permanent incapacity expected and the plaintiff’s prognosis was good.
104 Ross Edwards, physiotherapist from Pakenham Physiotherapy, first saw the plaintiff on referral from Dr Dhillon in April 2007.
105 In his report to CGU of 1 August 2007, Mr Edwards advised, with treatment, the plaintiff regained a full range of ankle movement but pain persisted on weight bearing.
106 Mr Edwards spoke with the plaintiff on 31 July 2007 regarding his progress. At that stage, the plaintiff remained off work and Mr Edwards noted that any decision regarding his future work capacity depended on an upcoming review by an independent WorkCover medical examiner, together with a treatment plan and recovery from any possible surgery.
107 Mr Edwards thought the plaintiff’s incapacity was still a consequence of the incident. He noted the plaintiff’s condition had plateaued, so he would just be reviewed from time to time until his future management was clarified.
108 Mr Malcolm Thomas, orthopaedic surgeon, saw the plaintiff on 20 August 2007 and wrote to CGU and Dr Kabir on that date.
109 Mr Thomas advised Dr Kabir that he had started the plaintiff on Endep to see if it would help reduce his symptoms.
110 Mr Thomas advised CGU that the plaintiff’s symptoms at that time were of pain which varied from burning to constant ache. He also had a slight colour and temperature change in the foot with swelling.
111 Examination by Mr Thomas revealed the left foot was a distinctly bluish colour compared to the right. The fractures, however, were fully healed and were not tender to palpation or stressing. There was some mild stiffness in the foot and no swelling.
112 Mr Thomas noted x-rays demonstrated the fractures to have healed in excellent position. However, there was some diffuse osteoporosis.
113 Mr Thomas thought the plaintiff had CRPS as a consequence of the incident. He started him on Amitriptyline and recommended to his general practitioner that it be monitored and increased as necessary. He also felt it would be appropriate for the plaintiff to be sent to a pain management specialist for consideration of other treatment modalities. He reassured the plaintiff his fractures were well healed and not causing his ongoing symptoms.
114 Mr Thomas confirmed the injury was a crush injury to the left foot with resultant fractures of the first and second proximal metatarsal shafts.
115 Mr Thomas thought the plaintiff was not fit for pre-injury employment until his CRPS substantially settled, noting that he had worked as an arborist, which was physically demanding. At that stage, Mr Thomas thought the duration of the plaintiff’s incapacity was difficult to state with certainty and would depend on his treatments for his CRPS.
116 Mr Thomas did not believe there would be a permanent impairment but suspected recovery may take up to twelve months with appropriate treatment. It followed then that the plaintiff was incapacitated and currently totally incapacitated and that he was not able to return to his pre injury work, and as an arborist he was not able to return to office based work as he was not educated or trained in that field.
117 Mr Thomas did not believe the incapacity would be permanent, with likely resolution of symptoms with appropriate treatment over time.
118 Dr Blombery, consultant physician in vascular disease, first saw the plaintiff on referral from Dr Clements on 5 February 2008 with a question of CRPS Type 1 affecting the left leg.
119 When Dr Blombery saw him, the plaintiff complained of ongoing pain present in the left foot most of the time. The foot became hot and red and sweated abnormally. There was also “pins and needles” and numbness and overall the pain fluctuated and the foot swelled quite markedly.
120 On examination, the left foot was two degrees cooler than the right, with increased swelling. The left calf was also two degrees cooler than the right. There was no wasting of the calf muscle. The plaintiff was moderately tender on pressure over the left foot but there was no allodynia. There was a reasonable range of movement of the ankle and the toes.
121 Dr Blombery concluded the plaintiff had sustained the fractures and despite healing thereof, he had been left with ongoing pain in the area and this combination of features of ongoing pain together autonomic disturbance was diagnostic of CRPS Type 1, previously known as RSD.
122 After the first examination, Dr Blombery thought the plaintiff should have a trial of Epilim to modulate pain perception.
123 On the examination on 4 March 2008, there had been a fifty per cent reduction in pain with the use of Epilim. Dr Blombery suggested the plaintiff undergo a lumbar sympathetic infusion of local anaesthetic which was performed in April 2008. Dr Blombery noted the plaintiff had a very good result with a marked reduction in pain and he was able to mobilise very well.
124 On re-examination on 6 May 2008, the plaintiff’s pain had recurred to a significant degree, although it was not as severe as it had been prior to admission for the block. The plaintiff remained on Epilim and the dosage was increased and Dr Blombery also added Catapres to the medication regime.
125 When next examined on 8 July 2008, the plaintiff reported some further improvement with the use of Epilim and Clonidine. He felt there was some improvement after the lumbar sympathetic block but that was not marked.
126 Because of his ongoing problems, Dr Blombery thought the plaintiff should have an intravenous lignocaine ketamine infusion performed in an effort to break the pain cycle. This was carried out at the Avenue Hospital in August 2008. The plaintiff had a good response to this procedure with a marked reduction in the level of pain whilst hospitalised.
127 On re-examination on 15 September 2008, Dr Blombery noted unfortunately improvement had only been short term and the plaintiff’s pain was gradually returning to its previous level. Dr Blombery continued the prescription of medication and added a Norspan patch to the plaintiff’s medication regime.
128 The plaintiff was then seen on 18 November 2008, when the patch had been increased by his doctor. Dr Blombery thought the plaintiff should also have an MRI scan to ensure any alternative pathology was not being missed.
129 Dr Blombery next saw the plaintiff on 19 January 2009. The MRI scan showed that the fracture of the metatarsal was almost completely united and there was no other major pathology present. The plaintiff was deriving some benefit from the patches and taking no other medication. Dr Blombery placed him on a new antidepressant, Cymbalta, which Dr Blombery noted could also be useful in patients with neuropathic pain.
130 Dr Blombery next saw the plaintiff in July 2011 at the request of Slater & Gordon.
131 The plaintiff told him that since last being seen, he had had ongoing left leg pain, which he rated on average at five out of ten. The left leg swelled, became hot and cold and red and blue in appearance. There was intermittent tingling in different areas and the plaintiff noted cramping in the foot in different areas, with the pain extending up to his ankle.
132 On examination, the plaintiff’s left foot was blue and more sweaty than the right and was seven degrees cooler than the right. The left calf was three degrees cooler than the right and half a centimetre smaller than the right. In the left ankle, there was thirty degrees of dorsi flexion, twenty degrees of plantar flexion, but full inversion and eversion. The plaintiff was generally quite tender on pressure over the foot but there was no allodynia.
133 Dr Blombery concluded the plaintiff continued to have ongoing features of quite florid CRPS Type 1 affecting the left foot after the fracture sustained at work. He thought the plaintiff’s pain was essentially stable and his prognosis for recovery was extremely poor, and that there would be no significant change in the plaintiff’s level of disability in the foreseeable future.
134 Dr Blombery considered the plaintiff was not able to work in his previous job and would be unable to work in that job in the future. He thought the plaintiff would not be able to do any job where he had to be weight bearing and, given the fact that he was also taking strong narcotic medications, Dr Blombery thought the plaintiff would have no capacity for suitable employment.
135 Dr Blombery thought the plaintiff was going to require ongoing multidisciplinary therapy for chronic pain. He did not think there was any indication for nerve block intervention. He noted if the plaintiff’s pain became intractable in the future, he may even be a candidate for a technique such as spinal cord stimulation. He thought the plaintiff was going to require multidisciplinary therapy for chronic pain.
136 Dr Blombery wrote to Dr Clements on a number of occasions advising him of the plaintiff’s treatment regime and his response thereto.
137 Dr Kozlovskis, general practitioner, provided a report in February 2009, noting the diagnosis of the fractures and the CPRS and setting out the medications trialled and the procedures undergone.
138 Having reviewed the plaintiff’s medical history, Dr Kozlovskis could find no mention of a previous lower limb injury. Dr Kozlovskis considered the mechanism of injury being a crush type injury was consistent with the plaintiff’s overall clinical picture.
139 Dr Kozlovskis noted it had been two years since the incident and the plaintiff’s condition had not fully healed and he had done everything asked of him. Dr Kozlovskis did not expect any further healing or improvement nor did he expect the condition to worsen over time. Hence, Dr Kozlovskis thought it was a permanent and stable injury, with no further medical or surgical treatment planned or suggested.
140 Dr Kozlovskis considered the plaintiff was not capable of returning to his pre injury employment, noting physically he was partially disabled. He thought the plaintiff was capable of work where a large part of the day was spent seated, so he could at least rest when required. Dr Kozlovski noted the plaintiff could walk, but it was just that his pain worsened after about ten minutes walking.
141 In Dr Kozlovskis’ view, office, desk/computer work, customer service were all potential occupations for the plaintiff. He noted occupationally, however, the plaintiff was currently completely disabled as he was untrained in any other occupation. Dr Kozlovskis thought that due to the plaintiff’s young age, occupational retraining was definitely warranted for him.
142 Dr Kozlovskis concluded that, as he had limited experience with CRPS, he did not consider himself knowledgeable in its diagnosis. Therefore, in providing that diagnosis, it was based more on him concurring with the diagnosis made by the orthopaedic, rehabilitation and vascular specialists, rather than being his own independent opinion.
143 Dr Islam, from West Gippsland Medical Centre, reported on 10 August 2011. The plaintiff had been under her care since Dr Kozlovski left the clinic in November 2010.
144 Dr Islam found the plaintiff had pain in his left foot, which she thought was related to the incident. She noted the plaintiff had been seen by a number of specialists, and at the end, the diagnosis of CRPS was made. She noted the plaintiff also suffered from depression.
145 Dr Islam advised the plaintiff was currently on Norspan patches, 10 milligrams weekly, for pain. He took 200 milligrams of Zoloft daily for depression. In her view he was trying his best to manage with the medication but some days were still bad, worse than others, with severe pain. She noted that the plaintiff’s previous general practitioner tried to increase the pain medication to give maximum relief but the plaintiff could not tolerate the side effects.
146 Dr Islam advised that she had not changed the plaintiff’s medication as she felt his condition had become chronic and there was no rush to change it very frequently. Also, the plaintiff had told her he did not want to change his medication, noting that he had tried many different types in the past and found the current medication was the best option.
147 Dr Islam noted the plaintiff had seen John Reeves a few times in 2010 for psychotherapy and noted the plaintiff’s depression had improved with regular antidepressants.
148 Dr Islam concluded it had been four years since the incident and the plaintiff’s fractures had completely healed but she also did not expect his full recovery at that stage. She noted she had limited experience with CRPS and did not consider herself an expert; hence the plaintiff may need to get further advice from Dr Clements or Dr Blombery in future if his condition worsened.
Medico-Legal Evidence
149 The plaintiff was examined by occupational physician, Dr Sillcock, on 1 August 2011.
150 The plaintiff told her he had not had any significant improvement in his symptoms and he had constant severe pain in his left foot and he never had any pain free periods.
151 On examination, the plaintiff walked with a pronounced limp. His left foot was not swollen or tender and had an almost normal range of movement. There was no discolouration or abnormal sweating and the plaintiff had normal hair growth.
152 Dr Sillcock believed the plaintiff was suffering from CRPS of the left foot. She noted the plaintiff did not have any significant clinical signs on the day she saw him, but nevertheless he reported significant pain.
153 Dr Sillcock believed the plaintiff was incapacitated for his pre-injury employment.
154 Dr Sillcock noted the vocational assessments of 31 October 2007, 31 January 2009 and 31 January 2010 which did not identify any suitable occupations for the plaintiff. In the latter two reports, the author concluded that retraining was not a suitable option for the plaintiff at that time.
155 Dr Sillcock agreed with those assessments, as she did not believe the plaintiff had a current work capacity and would not do so for the foreseeable future. She noted he had a relatively low level of education, having completed Year 9, although he had done a certificate as an arborist. She noted, unfortunately, that type of work was very physically demanding and, in her view, the plaintiff was not capable of doing it. Dr Sillcock noted the plaintiff did not have any experience with any other sort of work, but, while he could use a computer, the plaintiff had not had any experience in administrative or office work which would be more physically suitable for him.
Investigations
156 An MRI scan of the plaintiff’s left foot was organised by Dr Blombery on 6 January 2009. It was reported there were almost completely united proximal first and second metatarsal fractures.
157 An x-ray of the plaintiff’s left foot was organised on 31 May 2007 by Mr Edwards, physiotherapist. It was reported there was an undisplaced fracture through the proximal third of the first and second metatarsals. Further, it was noted the position and alignment was good and there was no evidence of union. No other bony or joint abnormalities were present.
158 Dr Kabiar organised further radiology on 10 August 2007. It was reported the bones were osteopenic. The fractures through the first and second metatarsals were incompletely united and there was no malalignment.
The Defendants’ Medical Evidence
159 Mr Scott, orthopaedic surgeon, examined the plaintiff on 19 April 2007.
160 On examination, the plaintiff complained of pain across the dorsum of the foot and at that stage it was fully weight bearing with a marked left leg limp.
161 On examination there was a full range of movement to lower limb joints including the left ankle and left subtalar joint. There was evidence of marked tenderness over the dorsum of the left foot in the region near the bases of the first, second and third metatarsals. There was no other left or right lower limb abnormality of motor power, tone, sensation, reflex activity or circulation.
162 Mr Scott thought the plaintiff was not fit for work as there were symptoms suggestive of an incomplete union of the metatarsal fractures. In his view, the plaintiff required further x-rays before considering a return to work plan, noting that the plaintiff said the light duties suggested to him would be difficult to achieve.
163 Mr Scott then believed the plaintiff was unfit for work or any job which required him to stand as he was having great difficulty getting about and weight bearing, suggesting that the fractures had not yet united.
164 Mr Scott thought the plaintiff should have an up to date x-ray of his foot before considering further management, as there were symptoms suggesting the fracture had not completely united. At that stage, Mr Scott believed the plaintiff was unfit to return to the work force but he thought the plaintiff might be able to take up some very light work that enabled him to sit for prolonged periods.
165 Professor Vernon Marshall examined the plaintiff on 13 July 2007 and 11 November 2008.
166 On the first occasion, the plaintiff was tender over the first and second metatarsal shafts and there was no problem of vascularity or nerve supply of the foot.
167 Professor Marshall then thought the plaintiff had no capacity for pre injury duties and that he had a capacity for light office work without weight bearing. Professor Marshall noted at that stage surgery had been suggested to accelerate the union and that the plaintiff’s condition had not stabilised.
168 On re-examination in November 2008, Professor Marshall noted the fractures had united fully with clinical and radiological union but the plaintiff had persisting chronic pain and a painful limp and had demonstrated some features of CRPS.
169 Professor Marshall noted the natural history of that condition was often gradual and that the plaintiff had seemed to have made some improvement and no longer exhibited the sympathetic hyperactivity apart from some minor cyanosis. He noted at that stage the plaintiff’s regional pain persisted without improvement and he was requiring opioid analgesia and other therapies.
170 Professor Marshall thought the work injury was contributing to the plaintiff’s condition and that treatment had been appropriate but not effective for any length of time. He noted the condition appeared to be slowly improving and he thought the plaintiff was currently unfit for his pre injury job and believed he may never be able to return to that activity.
171 Professor Marshall then considered the condition had not fully stabilised with persisting symptoms and that it would be appropriate to review the plaintiff in a year to check for permanent impairment.
172 Professor Marshall thought, given the severity of the plaintiff’s symptoms, it was likely he would have difficulties obtaining even light office work with minimal physical constraints. He thought future treatment would be best by periodic review by the plaintiff’s general and specialist medical practitioners and continuing encouragement with attempted reduction of the plaintiff’s current high opioid use.
173 Dr Fish, consultant occupational and environmental physician, examined the plaintiff on 6 May 2009.
174 The plaintiff then complained of continuing pain in the mid foot which was constantly present and subject to severe cramping sensation. He suffered abnormal sensation over the dorsum of the foot, which swelled in hot weather and felt constantly cold in colder weather. The plaintiff said his foot was stiff and he described an ache through it all the time.
175 On examination, the plaintiff limped on his left foot. There was mild wasting of the left calf of one centimetre compared to the right but manual muscle testing was normal with slight give way weakness.
176 Range of motion in the ankle subtalar great toe and lesser toes was all normal. There was diffuse tenderness over the mid foot, but there was no obvious discolouration. The left foot was generally colder in temperature than the right, but there was no excess sweating. There were no trophic changes of skin, hair or nails. There was superficial dyaesthesia over the dorsum of the foot in the distribution of the superficial peroneal nerve. There were no circulatory changes and the pulses were normal.
177 Dr Fish noted the fracture and the fact that the plaintiff had since developed a chronic pain in the left foot despite healing.
178 Clinically he thought the plaintiff did not have features of CRPS and at that stage there were no trophic changes in the skin, no colour changes, and no disuse atrophy following a traumatic fracture.
179 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff on 13 January 2011.
180 On examination, the plaintiff reported paresthesia. He complained of “pins and needles”, poor sleep, difficulty with walking and that the area was painful no matter what and he just got on and dealt with it. Occasionally his foot was pain free but that occurred rarely.
181 On examination, the plaintiff had wasting of his left thigh of two centimetres and in his left calf, there was wasting of one centimetre. He had a range of movement of the left forefoot subtalar joint and ankle joint. There was some tightness of his Achilles tendon with the knee and in extension, the foot lost dorsi flexion. There was some hypoalgesia to both sides of the ankle joint. There were no skin, hair or nail changes. There was no mechanical allodynia and no change in sweat pattern.
182 Dr Thomas noted the MRI scan of the left foot of January 2009 showed the fractures had completely healed.
183 Dr Thomas thought the plaintiff sustained a crush injury to the left foot which had healed. The plaintiff had also developed CRPS for which he had had a variety of different forms of intervention, which had been mostly successful.
184 Dr Thomas noted the plaintiff did have some residual signs, predominantly the hypoalgesia, but outside of that, there was no residual evidence of CRPS. He noted the plaintiff did have pain on activity.
185 Dr Thomas thought the most appropriate form of intervention would be a graduated activity and exercise regime.
186 Dr Thomas thought the plaintiff’s condition had substantially stabilised and he did not rate an impairment percentage. From the point of view of his disability, Dr Thomas anticipated further improvement. He noted the plaintiff had taken on a role reversal and was now a house husband.
187 In Dr Thomas’s view, the plaintiff had a work capacity. He thought the plaintiff did present as being somewhat deconditioned and in Dr Thomas’s opinion the plaintiff would benefit from a graduated exercise regime.
188 Accepting that work as an arborist was physically demanding in the first instance, Dr Thomas would not recommend the plaintiff return to such work and would recommend the plaintiff return to work which was less physically demanding, such as light process work. As indicated, however, he would expect the plaintiff’s condition would continue to improve to the extent of the plaintiff being able to get back to physically based work.
189 In his current condition, Dr Thomas thought it reasonable to indicate that the plaintiff would have difficulty being up on his feet for a full working day, but with further rehabilitation through an exercise regime, he thought the condition could be improved fairly significantly to the extent of being able to perform light manual work in a full capacity.
190 Dr Thomas was then provided with the plaintiff’s affidavit and a Task Analysis and video of identified suitable employment jobs.
191 Confirming the plaintiff had work capacity and also having seen the video of the suggested jobs, Dr Thomas thought the plaintiff would have no difficulty working full time as a control room operator, as his foot could be kept quite immobile within a firm boot.
192 In terms of a mobile van sales person job, he thought the plaintiff could do the duties in a permanent part time capacity, about four hours per day, five days a week. Dr Thomas thought within those hours, the plaintiff would be reliable and able to maintain regular work during this period. Dr Thomas noted the big uncertainty was to what further extent the plaintiff’s problems would improve. In Dr Thomas’ view, with further treatment, further improvement would be expected.
193 In terms of the packer/picker light job, Dr Thomas thought the plaintiff would have the capacity to perform such a job four hours per day, five days per week, with a view to increasing his hours pending his progress. Dr Thomas considered that would be the worst case scenario with the best scenario being the plaintiff improve with a graduated activity and exercise program with appropriate closed chain exercises to the extent he would be able to increase his hours back to full time.
194 Dr Entwisle, consultant psychiatrist, examined the plaintiff on 9 November 2007.
195 The plaintiff complained of a cold, swollen, sweaty and discoloured foot with cramps; it was very sensitive and he had electric shocks. He walked with a limp.
196 The plaintiff did not report any psychiatric symptoms and described himself as “pretty good”. He was occasionally frustrated but generally managed well. He was not tearful or depressed and did not experience panic, agoraphobia or claustrophobia. The plaintiff advised, however, his sleep was horrible and the OxyContin helped him sleep. His memory and concentration were intact.
197 On examination, Dr Entwisle noted the plaintiff did not demonstrate any abnormal illness behaviour. The plaintiff’s mood was within normal range. Speech showed normal stream and flow. Memory and concentration were intact and insight was present. There were no heightened features and no perceptual disturbance and in Dr Entwisle’s view, the plaintiff did not present with a psychiatric condition.
198 From a psychiatric perspective, Dr Entwisle thought the plaintiff had a current work capacity. He noted the plaintiff was not having any psychiatric treatment nor did he need any. He was self managing to a large degree and focussing on returning to work when possible.
Vocational Evidence
199 Joanne Bryant, occupational therapist from CoWork Pty Ltd, provided a report dated 20 July 2011.
200 Ms Bryant was provided video footage and a labour market analysis in relation to the jobs of control room operator, picker/packer (light), picker/packer (general) and mobile van salesperson.
201 The gross weekly wage for a control room operator was $868.13 with an average gross hourly rate of $22.85. Working twenty hours per week the operator would be paid $457.
202 The gross weekly wage for a picker/packer (light) was $754.68 with an average gross hourly rate of $19.86. Working twenty hours per week the packer would be paid $397.20.
203 The gross weekly wage for a cash van salesperson/ food was $806.74 with an average gross hourly rate of $21.23. Working twenty hours per week the salesperson would be paid $424.60.
Overview
204 There is no dispute that the plaintiff suffered a compensable injury in the incident - a crush injury to the left foot with resultant fractures of the first and second proximal metatarsal shafts.
205 Whilst the fractures have healed, the plaintiff has subsequently developed the condition/CRPS diagnosed by all doctors in this case. Although there have been different findings as to the extent of the symptoms and degree of the condition, it is accepted that the condition is a continuing problem for the plaintiff.
206 The plaintiff’s claim for weekly payments and medical expenses in relation to the incident was accepted by the defendants.
207 Both pain and suffering and loss of earning capacity were in issue, but ultimately no submissions were made in respect of pain and suffering by counsel for the defendants. It was conceded the plaintiff could not return to tree lopping and that the condition was a fluctuating one with the plaintiff having good and bad days and if the Court was satisfied, then the pain and suffering may well be there.
208 As Maxwell P stated in and Haden Engineering Pty Ltd v McKinnon (2010) VSCA 69 at paragraph 12, the weight to be attached to the plaintiff’s account of his pain experience will of course depend upon an assessment of the plaintiff’s credibility.
209 In my view, the plaintiff was a truthful witness who did not overstate the extent of his pain and restriction.
210 There was no film of any activity inconsistent with the plaintiff’s evidence. Further, no medical practitioner was of the view the plaintiff was embellishing or feigning his symptoms or that there were any inconsistencies on examination.
211 I accept that as a result of the condition, the plaintiff continues to experience ongoing symptoms which at times are severe with pain, changes in temperature, and swelling and discolouration in his left foot. He experiences “pins and needles” which sometimes are of an extreme nature and also recurring episodes of cramp and gross sensitivity in his left foot.
212 As a result thereof, the plaintiff has difficulty walking and at times walks with a limp and the use and movement of his left foot is restricted. He cannot stand or crouch for prolonged periods. Because of those ongoing symptoms and fluctuating pain, the plaintiff is unable to rely on his left foot and leg.
213 The plaintiff requires the Norspan patches, a morphine based treatment, which causes significant side effects including drowsiness and loss of concentration. He has been prescribed various anti depressants to assist with neuropathic pain and presently takes Sertraline.
214 The plaintiff has difficulty sleeping due to the burning pain in his left foot.
215 Because of the condition, the plaintiff is restricted in various daily activities. He is unable to play freely with his young daughters. Whilst he can do the housework he has to undertake as a house husband, he is unable to do heavier home maintenance tasks or work on cars. He cannot drive for extended periods both due to pain and the effects of his medication.
216 It is not in dispute that the plaintiff can no longer work in his chosen field as an arborist/tree lopper - the only job for which he has been trained and work he has engaged in for most of his working life both as an employee and in more recent times prior to the incident on a subcontracting basis.
217 Despite Dr Clayton Thomas’s optimism as to the potential for improvement in the plaintiff’s condition, as it is has continued for over four years with no real improvement despite significant treatment, I am satisfied that the condition is likely to last into the foreseeable future.
218 I am satisfied that the impairment to the plaintiff’s left foot/leg when judged by comparison with other impairments in the range of possible impairments may fairly be described at the date of the hearing as at least “very considerable” and more than “significant” or “marked.”
219 Accordingly, I grant leave to the plaintiff to bring proceedings for damages pain and suffering.
220 To succeed in his claim for loss of earning capacity, the plaintiff must establish that after the date of hearing he will continue to have a permanent loss of earning capacity which will be productive of a financial loss of forty per cent or more. Subsection (f) which relates to older workers and requires consideration of income from personal exertion in the three years before and three years after the injury does not apply.
221 As at the date of hearing, the plaintiff’s present earnings from personal exertion are nil thus he has a loss of earning capacity of forty per cent.
222 Submissions were made by counsel as to how the plaintiff’s loss of earning capacity figure should be calculated.
223 Counsel for the defendants submitted the appropriate starting figure was $760 per week. This sum comprised the plaintiff’s earnings with the first defendant of $560 per week (28 hours at $20 per hour) and an allowance for the plaintiff’s business earnings in the sum of $200 per week (5 hours at $40 per hour). Counsel for the defendants submitted that the plaintiff’s business was part time without great prospects, the highest income before the said date being only $14,000.
224 On this basis, it was submitted that the plaintiff had an earning capacity of $39,520 or $760 per week, sixty per cent of which is $456.
225 Counsel for the plaintiff submitted that a more generous figure should be allowed n relation to the plaintiff’s business earnings as the business was growing before the incident, after having to pay set up costs including the purchase of expensive machinery. $50,000 was suggested as the appropriate figure, sixty per cent of which is $30,000 or approximately $600 per week.
226 Counsel for the plaintiff submitted the plaintiff would find it very difficult to earn in excess of $600 per week. Further, it was submitted that the plaintiff had no capacity for suitable employment.
227 Whilst some analysis of wage figures has to be made when assessing whether or not the plaintiff has a forty per cent loss, there is not the requirement to strictly adhere to such figures when considering a worker under twenty six as is the case with older workers as set out in Section 134AB37(e)(i) and (f).
228 As the Minister assisting the Minister for WorkCover said in the Legislative Assembly on 23 May 2000 –
“The three year pre and post injury period does not apply in the case of a worker referred to in s.5A(7) of the Act or a worker under the age of twenty six at the date of injury. The Government recognises that apprentices and workers undergoing training for the purposes of being qualified and, in general terms, workers under the age of twenty six should not be subject to a six year period of enquiry of earnings or earning capacity. In the case of such workers, the Court may have regard to the probable income from personal exertion with the worker would have earned but for the injury over the worker’s probable earning life. This means the usual common law position prevails.”
229 Thus, it is clear that the special provisions relating to young workers are designed to be more flexible than those in place for older workers where the strict mathematical formula applies. Whilst some guidance can be given by the suggested figures I am not bound by them and I am permitted to take a more global approach in line with common law principles.
230 Relying on Dr Clayton Thomas’ opinion, counsel for the defendants submitted that the plaintiff had the capacity to work full time in the control room or similar sedentary work and accordingly on the figures suggested by it, would not suffer the requisite loss. It was also submitted that the plaintiff had the capacity to work twenty hours per week as a packer or operating a mobile food van.
231 However, I prefer the view of the plaintiff’s treating specialist Dr Blombery that the plaintiff does not have a capacity for suitable employment, .
232 Dr Blombery is an expert in the treatment of the condition, whereas Dr Clayton Thomas is a pain and rehabilitation physician. Dr Blombery has treated the plaintiff over a number of years and recently re examined him for medico legal purposes whereas Dr Thomas has seen him only once in a medico-legal context. Having seen him over an extended period of time, Dr Blombery considered the condition was essentially unchanged and resulted in a total incapacity for employment.
233 Whilst there is medical opinion that a totally sedentary job would be within the plaintiff’s physical capabilities, his level of pain varies greatly resulting in unreliability for regular attendance at work. Further, his ability to drive is similarly variable. Significantly at all times he is drowsy because of his morphine intake and his memory and concentration are also affected.
234 Because of these factors, I do not accept that the plaintiff has even the limited capacity for the suggested jobs of packer and mobile food salesman.
235 An inability to engage in work involving weight bearing, with the associated problems relating to the side effects of his morphine intake, in a young worker such as the plaintiff, who has had a history of only heavy manual work, are factors which result in a significant loss of earning capacity.
236 In March 2010, Recovre was not able to identify any suitable options due to the plaintiff’s reported tolerances and limitations noting the plaintiff’s transferable skills related only to working as an arborist and that he left school early and was not an academically minded person.
237 Dr Sillcock, occupational physician on recent examination in August 2011 considered the plaintiff was totally incapacitated without further retraining. However she did not suggest a suitable field in which the plaintiff could be retrained.
238 Earlier treating doctors such as Dr Dhillon and Mr Malcolm Thomas who thought the plaintiff had a capacity for employment or retraining have been proven by time to have been somewhat optimistic as to the plaintiff’s prognosis. Further as both Dr Kozlovksi and Dr Islam freely conceded they deferred to specialist opinion not having any expertise in treatment of the condition
239 No doctor involved in this case has expressed the view that the prescription of morphine is contra-indicated or that its prescription is for a limited duration.
240 I am satisfied that due to the plaintiff’s fluctuating pain which at times can be severe, his associated reduced mobility and the effects of his medication, the plaintiff has no capacity for suitable employment and he has established a loss of earning capacity of forty per cent that is likely to persist for the foreseeable future.
241 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
242 I do not accept the submission by the plaintiff’s counsel that this subsection does not apply to workers under twenty six. However, in light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more.
243 As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
244 Accordingly, I also grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
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