Thorp v VWA
[2011] VCC 1210
•16 May 2011 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BENDIGO
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01941
| SHANNON THORP | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 5 and 6 May 2011 |
| DATE OF JUDGMENT: | 16 May 2011 (Revised) |
| CASE MAY BE CITED AS: | Thorp v VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1210 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to lumbar spine – assessment of financial loss pursuant to s.134AB(38(e)(ii).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with | Arnold Dallas & McPherson |
| Ms E McKinnon | ||
| For the Defendant | Mr A Moulds SC with | Hall & Wilcox |
| Ms S Manova | ||
| HIS HONOUR: |
1 In this application, the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering and the pecuniary loss consequences associated with an injury suffered by him in the course of his employment with Bendigo Bricks. In the application, the plaintiff relies upon two affidavits sworn by him, the first dated 23 December 2009 and the second dated 4 May 2011. Otherwise the parties rely on medical reports and other material tendered by them.
2 In his first affidavit, the plaintiff deposed as follows:-
•
he was born on 30 June 1980 and is currently thirty years of age. On 14 September 2005, he suffered an injury to his lumbar spine whilst stacking bricks in the course of his employment with Bendigo Bricks. As at the date of his injury, he was employed as a forklift driver. He said that he usually worked a thirty-eight hour week and was paid $14 per hour for such work;
•
following the incident, he was absent from work for two days. He then returned to work on about 16 September 2005 but he was unable to complete his duties because of continuing pain in his back and his legs. Having consulted a doctor, he returned to work late in September 2005, undertaking light duties on restricted hours. He said that by early 2006 he had managed to build his workload up to three hours per day of light duties for three days per week, but that he did so “while still suffering a significant degree of pain”;
•
he said that notwithstanding having being referred to three neurosurgeons at the Austin Hospital; undergoing an epidural injection into his back; being referred to a continence clinic for treatment by way of physiotherapy and hydrotherapy, there had been little change in his condition;
•
as at 23 December 2009, he said that he had constant pain and stiffness in his lower back which varied in intensity but was always present. He said that this pain radiated into his buttocks and legs, more so on the right side than the left and that he had difficulty urinating. He said that the pain was aggravated by prolonged periods of sitting or standing, including driving, as well as walking, and that movements such as bending, twisting, lifting or pushing and pulling increased his pain. He said that on occasions his symptoms would increase spontaneously.
3 The plaintiff said that his symptoms caused him to limp, usually favouring his right leg and that his symptoms interrupted his sleep. He described developing psychological difficulties in association with his symptoms, and said that he relied upon medications including OxyContin, Endep, Mobic and Valium, together with Panadol Osteo.
4 The plaintiff deposed that during the 2004/2005 financial year, his income was $32,607; that he had not worked since the cessation of his employment with the defendant; that he continued to receive weekly payments of compensation; and that he did not believe that he would be able to return in the future to any meaningful employment.
5 In his second affidavit, the plaintiff deposed to the fact that there had been no significant change in his physical condition; that he was currently taking OxyContin, Valium, Endep and Mobic to manage his symptoms, and that he remained unemployed and continued to be in receipt of weekly payments of compensation.
6 It is not in issue in this proceeding that the pain and suffering consequence of the injuries sustained by the plaintiff are such that they meet the definition of “serious injury” as set out in the Accident Compensation Act 1995 (as amended) (“the Act”). The issue for my determination is whether the consequences of the plaintiff’s injury have occasioned a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more of his earning capacity but for his injury.
7 In assessing this issue, it is clear that the provisions of s.134AB(38) sub paragraphs (f) and (g) of the Act do not apply, and that in assessing the extent of the plaintiff’s permanent loss of earning capacity, I may have regard to the probable income from personal exertion which the plaintiff would have earned but for his injury over his probable working life and that in determining this application I should apply the usual common law principles.[1]
[1] See the Second Reading Speech of the Honourable M M Gould, the Minister assisting the Minister for WorkCover on 23 May 2000.
The Viva Voce Evidence of the Plaintiff
8 In evidence-in-chief, the plaintiff said that over the last five years he had been unable to walk without a limp.
9 In cross-examination, the plaintiff said:
•
that having completed his Year 10 and before obtaining employment with Bendigo Bricks, he had worked as a car detailer, an electroplater, and in assembling upholstered furniture. He said he commenced with Bendigo Bricks as a brick stacker but because of the fact that he was one of the better workers, he was promoted to the position of forklift driver.
•
He said that whilst he was happy with the work he was performing at the time of the accident, he wanted more manual work given that forklift driving required him to sit on his forklift for up to nine hours per day. He said that before his accident he had requested some variation in his work because:
“I just needed a bit of exercise. I felt it wasn’t – yeah, my body
was just not feeling right”.
He continued:
“I like manual work. I was – I did like manual work. That’s all I’ve ever really done and I was good at it, like, I – I liked keeping fit and stuff.”
10 As to the activities which the plaintiff had performed following his accident during his periods of restricted light duties with the defendant, the plaintiff said that in performing those activities:
“I was yeah – at a bench stamping cards … I was allowed to sit, lay
down … if I felt like I had to just sort of straighten out and lay down.”
11 When challenged, the plaintiff gave the following evidence as to the effect of his accident upon him:
• Firstly, as to his ability to do house work: “I can do me own housework and all that sort of stuff. I can’t overdo it. I know pretty much that. It’s just the pain, it’s – like I have to – like, if I do overdo things I have to like some embarrassing things, I have to be near the toilet and stuff like that if I try and do too much, things like that.”
• Secondly, as to whether he was fit for light work: “With my restrictions I – I mean, the way I am I can’t work. I know I can’t work. It’s just that I – I – I know that if I was to get a job I’d last a week, and I’d have to call in sick.”
and when asked whether he had the capacity to undertake employment
assembling “light things”, the plaintiff responded:
“Well I hope to be able to in the future.”
• Thirdly, as to whether he might undertake retraining such as a computer course: “Well, I mean like, just my day-to-day life, like I still haven’t got around to doing things that I’d like to do and that, so I sort of know that I can’t go and sit through a course. It’s the way I feel.”
12 When questioned as to the benefit he gained from the physiotherapy he received after his accident, the plaintiff said that this treatment had no lasting effect.
13 Although the plaintiff maintained that he had done his best to comply with the treatment programs set by his physiotherapist, his evidence on this issue was unconvincing.
14 The plaintiff agreed that when he had been referred to Mr Bill Radley, an occupational specialist, he had been provided with two questionnaires to complete, one of which he failed to complete and the other of which he did not even attempt to answer. When challenged as to his willingness to cooperate, the plaintiff responded:
“I tried me best to fill it all out … I did cooperate the best I could … I filled out pretty much half of that questionnaire and I did write him a letter stating that I felt like those questions – there was a lot of questions and it made me feel – it did make me feel sick. I actually spent days going back and doing a little bit at a time on that questionnaire and I’d run out of time and he needed it back, and I was only half way through it … every time I did start to do them I was getting confused because I had to look at one book and go back to the paper, and I was just getting really confused and the questions were just – yes, it really like – I mean, they weren’t that difficult but I just wasn’t feeling very good and I did spend a number of different sections of the day going back to it and doing, you know, ten more questions or whatever.”
15 In re-examination, the plaintiff was asked as to the mode in which he sat throughout giving his evidence. In this regard, the plaintiff sat with a relatively straight back but at the same time he leant backwards and he also stood whilst giving evidence. He commented,
“I’m sitting on the edge of the chair sort of like … because if I try to sit up straight I would not be able to sit up straight for very long. I’d be in a lot of pain so sitting like this is more comfortable.”
16 When asked why he stood during his evidence, the plaintiff responded:
“Well I thought I needed to stand up and give me back a bit of a break.”
17 The plaintiff was asked how he came to complete his Year 10. He said that he had not finished his Year 12, that he did not do his Year 9 at all, but he had a meeting with the principal and was accepted into Year 10. He said he found maths very hard and that he was still not good with numbers. He said he was not very good with spelling that he could read “basic stuff”. He said as to his Year 10:
“I mean, I passed, I think I passed, I’m pretty sure I passed it.”
The Medical Evidence
18 In a report dated 23 August 2007, Mr Chris Thien, neurosurgeon, commented that he first examined the plaintiff on 15 November 2005. He said that the plaintiff presented to him in a stooped manner as if he was unable to straighten his lower back. On examination, Mr Thien did not find any abnormal neurological signs to be present nor did he observe the presence of any motor or sensory neurological deficits. Mr Thien referred the plaintiff for an MRI scan which revealed the presence of:
• A shallow disc prolapse at L3-4 and mild evidence of canal narrowing; • Mild canal stenosis due to a broad-based disc bulge at L4-5; • A shallow disc bulge at L5-S1; • Canal stenosis at L3-4 and L4-5 which was of greater significance due to the presence of a congenitally narrowed spinal canal.[2] [2] PCB 81
19 Mr Thien opined:
“My plan for treatment was to remain conservative. I did discuss the
option of surgery which would involve an L3-L5 decompression.”
20 Mr Myron Rogers, neurosurgeon, examined the plaintiff at the Neurosurgery Clinic at the Austin Hospital on 9 February 2007. He noted that the plaintiff had made limited progress over the previous fifteen to sixteen months and that he presented with “pronounced annular bulging particularly at the L4-5 level”. He advised the plaintiff that he should give some thought to undergoing surgery which had a two in three chance of effecting a significant improvement in his symptoms, which surgery would involve a posterior decompression, a discectomy and interbody grafting at the L4-5 level. Mr Rogers opined that this surgery had a two in three chance of affecting a significant improvement in the plaintiff's symptoms.
21 Dr Richard Bittar, a neurosurgeon, examined the plaintiff on 31 July 2007 and opined that the plaintiff was presenting with diagnostic lower back pain and leg pain arising from the L3-4 and L4-5 levels. In a report dated 24 March 2009 Dr Bittar opined that as at his last review of the plaintiff on 9 November 2007:
(i) There had been no significant change in his clinical condition; (ii)
His diagnosis was a lumbar spine condition. The differential diagnosis being discogenic lower back pain and leg pain.
(iii) The plaintiff’s prognosis was guarded, Mr Bittar commenting; “at the time that I last reviewed him in late 2007 he was totally
incapacitated for employment.”
22 In a report dated 12 July 2007, Dr J Wood reported that she first saw the plaintiff on 14 September 2006 when he attended the John Lindell Rehabilitation Unit at Bendigo Health. In the course of her report, she states:
“My first comment about Mr Thorp in my examination notes was that he was ‘obviously in strife’. He had an antalgic gait and tended to drag his left leg. I did not see him as a man who was over-reacting to any great degree. He demonstrated a very limited range of back movement … I surmised that Mr Thorp was a very genuine young man. I felt it was likely he did have lower spinal nerve root involvement and I even could not exclude a degree of cord compression from the story he gave and the somewhat limited clinical examination which I performed.”
23 Dr Wood reviewed the plaintiff on 11 January 2007, at which time she formed the opinion that no significant progress had been made with conservative treatment –
“despite multidisciplinary input and a variety of approaches. I felt that Mr Thorp warranted further opinion regarding surgical intervention in light of his good response to epidural injection.”
Dr Wood concluded her report with the following comments:
“I cannot comment on Mr Thorp’s prognosis with any certainty as it is possible that spinal surgery could markedly influence this. I believe, however, it would be fair to say that this man, whether he has surgery or not, will not be able to return to heavy physical labour. His education level and skills base do not offer many alternatives to this. At the time when I last saw Mr Thorp, I did not believe his injury was stabilised.”
24 The plaintiff’s day-to-day management has been undertaken by the medical practitioners at the White Hills Medical Practice. In a report dated 27 February 2008, Dr M Nadarajah reported that since his accident the plaintiff had suffered from pain radiating from his lower back into his abdomen, groin and down both legs. He commented that the plaintiff had required management by way of narcotic analgesic medication and that he no capacity for work.
25 In a further report dated 21 January 2009, Dr Nadarajah made similar comments to those in his previous report.
26 In his final report dated 8 April 2011, Dr Nadarajah opined:
(i) Mr Thorp’s back condition has not improved. (ii) Prognosis is poor because of chronic pain and it is affecting his lifestyle and he is not capable of any physical work. (iii) It is difficult to anticipate a date of stabilisation. (iv) As mentioned, his capacity for any physical or manual employment is indeterminable. 27 Mr David Brownbill, a neurosurgeon, examined the plaintiff on 4 July 2006, 13 March 2007 and 17 October 2007. In the course of his reports, Mr Brownbill described the plaintiff as “presenting without embellishment” and opined that:
•
The plaintiff’s injury involved the aggravation of pre-existing degenerative changes superimposed on a congenitally narrow spinal canal (see his report dated 8 October 2007);
•
In the absence of decompressive surgery, the plaintiff’s symptoms would continue indefinitely and he would have difficulty completing any retraining or returning to any work (see his report dated 31 January 2008 .
28 Mr Timothy Gale, surgeon, examined the plaintiff on behalf of the defendant on 10 June 2008. In the course of his examination, Mr Gale commented that the plaintiff presented with features of conscious exaggeration and he expressed the opinion that the plaintiff was presenting in large part with a significant superimposed functional non-organic Chronic Pain Syndrome of some type.
29 Having regard to the fact:
(i)
That the plaintiff had undergone an epidural anaesthetic on 14 November 2006 from which he gained a positive result in the form of absence of leg pain for three days and reduced back pain before his symptoms returned to their previous level (this history being, in my opinion, inconsistent with the presence of a significant non-organic element in the plaintiff’s presentation); and
(ii) That the plaintiff:
•
had been managed by Dr Wood and his rehabilitation team at the John Lindell Rehabilitation Unit for a period in excess of twelve months between September 2006 and March 2007;
•
had been examined between 15 November 2005 and 9 November 2007 by no fewer than five neurosurgeons (namely Mr Rogers, Mr Drnda, Mr Bittar, Mr Thein and Mr Brownbill);
•
that no practitioner who had seen the plaintiff before he consulted Mr Gale had suggested that the plaintiff was presenting with anything other than an organic injury; and
•
that it is extremely unlikely, in my opinion, that the plaintiff would have recovered from his organic injury and developed a largely non-organic injury within the six months which elapsed between his assessment by Dr Bittar and his assessment by Mr Gale;
I do not find Mr Gale’s diagnosis to be at all persuasive.
30 In a report dated 15 February 2008, Professor Peter Disler opined:
• That the plaintiff: “… presented with multi-level disc prolapse and facet joint degeneration, on a background of congenitally narrow spinal canal and congenitally short pedicles. This is causing spinal stenosis. He has an Adjustment Disorder with Depressed Mood.”
•
Further, that the plaintiff’s prognosis was very poor and that he did not have the present capacity to work in any job for which he had training. He commented that the plaintiff’s industrial capacity may be influenced by a rehabilitation program which he underwent and observing:
“If this is the approach recommended by Dr Murphy, I would be
happy to reassess your client thereafter.”
31 In a report dated July 2010, Professor Disler described the plaintiff as presenting with “non-specific low back pain and a Chronic Pain Syndrome with physical factors”. He opined that the plaintiff presented with a significant incapacity and that he had no capacity to work in his pre-injury employment or any employment for which he has training or experience.
32 In a report dated 7 April 2011, Professor Disler explained that his use of the term “non-specific low back pain and Chronic Pain Syndrome with physical factors” was employed by him in recognition of the fact that whilst the plaintiff had an adjustment disorder with a depressed mood, his condition arose primarily from his physical back condition and was not primarily psychological in origin.
33 In a report dated 21 March 2001, Dr David Murphy, a consultant physician in rehabilitation medicine, opined that the plaintiff presented with a low back injury and a non-specific pain syndrome. He said that the plaintiff’s condition was stable and permanent, that is prognosis was one of ongoing pain and disability related to his back; that his capacity for employment was limited; that he was not able to undertake work which involved lifting, bending, twisting, sitting or standing in one position for more than fifteen minutes, or lifting more than 5 kilograms; and that with those restrictions in place:
“I think he would have difficulty completing full hours and I would be hoping that if he was able to work twenty hours per week in paid employment he would be doing fairly well.”
34 In a report dated 19 May 2009, Dr Murphy commented:
“It is difficult to determine the precise cause of Mr Thorp pain (sic) at the present time. I therefore think the most appropriate diagnosis is a non- specific back pain syndrome.”
35 In a report dated 30 March 2010, Mr Michael Dooley opined that the plaintiff suffered from naturally occurring degenerative disc disease of the low lumbar spine which was aggravated by the work-related episode of September 2005. He described that the plaintiff presented with “some inconsistent clinical signs”, although Mr Dooley observed that the plaintiff’s restriction of spinal motion was greater than he would have expected, he does not explain that comment further. Mr Dooley opined that the plaintiff was capable of carrying out light physical work and clerical duties and commented:
“Whilst I accept there will be a range of opinions, I cannot see how surgical intervention would improve him. It would be far more likely to worsen his situation.”
36 In a further report dated 8 April 2011, Mr Dooley expressed similar views to that which he had expressed in his earlier report, commenting that the constancy and intensity of the plaintiff’s pain was out of proportion with the injury he sustained, the degree of underlying degenerative disc disease with which he presented and that from an orthopaedic viewpoint alone the plaintiff was fit to carry out light work and clerical duties.
The Disentanglement issue raised by the Defendant
37 It is contended on behalf of the defendant that the plaintiff's presentation is now contributed to by a combination of physical and emotional factors neither of which, when isolated, could be identified as having a serious effect upon the plaintiff's income and earning capacity. The position of the defendant in this regard is difficult to follow however, given the concession by Mr Moulds SC who appeared with Ms Manova on behalf of the defendant, that the plaintiff's injury satisfied the pain and suffering threshold imposed by the Act.
38 The defendant's position on this issue is essentially based on the reports of Mr Gale, about which I have already made findings, and those of both Dr Murphy and Mr Dooley. It was submitted on behalf of the defendant that the use by Mr Murphy of the descriptive term "non-specific back pain syndrome" was suggestive of the presence of a significant non-organic presentation. I am uncertain as to what Dr Murphy meant to convey by the use of that term.
39 I note that in the course of his examination, Dr Murphy made no comment that the plaintiff was presenting in a functional way, and in these circumstances I interpret his use of the term "non-specific back pain syndrome" to be a phrase adopted by him by reason of his inability to determine the precise pathology responsible for the plaintiff's presentation, rather than being a positive statement as to the extent to which the plaintiff's emotional state is responsible for that presentation.
40 The defendant also relies on the reports of Mr Dooley, whose opinion clearly supports the contention that the plaintiff's presentation is now contributed to by a combination of physical and emotional factors.
41 It is clear that the plaintiff suffers from depression secondary to his physical injury.[3]
[3] See the report of Dr Gill dated the 10 September 2007.
42 Whilst I accept that the plaintiff presents with a combination of organic and emotional symptoms, having regard to:
•
The history of the plaintiff’s organic condition which did not improve during the period in which the plaintiff underwent intense treatment which included management by the neurosurgeons to which I have referred and his treatment at the John Lindell Rehabilitation Unit;
•
The opinion expressed in the Austin Hospital report dated 13 June 2007 in which it was opined that even with a surgical approach to his condition, his back would not return to his pre-injury status (which, in my opinion, supports the presence of an organic injury which was likely to be associated with significant ant permanent consequences);[4]
•
The opinion expressed by Mr Brownbill to which I have referred that the plaintiff was presenting with a significant physical disability which was unlikely to improve without surgical intervention;
•
The comments made by Dr Wood in July 2007 as to the likely permanent impact of the plaintiff’s organic injury upon his capacity to work (See PCB 87).
•
The opinion expressed by Professor Disler upon this issue to which I have previously referred ( PCB 50);
[4] See the Austin Hospital report dated 13 June 2007 and the comments at PCB 84
I am satisfied that, whilst the plaintiff presents with an Adjustment Disorder with Depressed Mood, his organic condition is primarily responsible for his disability.
My Impression of the Plaintiff
43 It was my impression of the plaintiff that he was a relatively immature person whose presentation was consistent with that of someone who was unworldly and possessed very limited education. In fact, both in his appearance and in the way in which he gave evidence, the plaintiff presented in a manner which I would have expected of someone in their early twenties. As to his level of education, bearing in mind the plaintiff's evidence that he obtained a pass in Year 10 without having completed Year 8 or taken part in Year 9, and given my assessment of his level of intelligence as he gave evidence, I consider it very likely that the plaintiff left his Year 10 with a less than adequate mastery of the subject content of that year, and that his true level of academic qualification is closer to that which might be expected of someone completing a Year 8 than that at Year 10.
44 These findings, in my opinion, largely negate the criticism which may be otherwise levelled at the plaintiff having regard to his poor compliance with his physiotherapy treatment and his approach to the questionnaire which he was asked to complete by Mr Radley. Given the preponderance of the medical evidence in the matter however, I am satisfied that even had the plaintiff exhibited better compliance in both instances, his present capacity for work would not have been influenced for the better in any significant way.
The Vocational Evidence
45 On 25 March 2011, the plaintiff was assessed by Mr Bill Radley, a psychologist and vocational assessment specialist. Mr Radley described the plaintiff’s mood and affect in the following terms:
“His mood seemed flat and lethargic, he appeared physically tense, emotionally depressed and his thinking seemed quite helpless and preoccupied by his injury, pain and related problems.”
46 As to the plaintiff’s concentration and short-term memory, Mr Radley opined as to the results of brief testing administered by him:
“The results suggest that he is likely to have quite significant problems with concentration, although his short term memory seems quite intact.”.
47 He described the plaintiff’s general presentation as suggesting:
“… significant physical and psychological deconditioning as the result of
his chronic injury and pain.”
And opined as to the plaintiff’s general level of intelligence:
“His education and employment history and my professional assessment of his use of vocabulary, general knowledge and his ability to think and reason suggest that he has a general intelligence in the low average range. However his low level of general education, reported limited literacy skills and self report that he struggled in school with formal learning, and my observations during this assessment his significant impairment in his ability to sit for more than a short period of time would effectively preclude him from undertaking any type of higher education or formal occupational retraining.”
48 Mr Radley concluded his report with the following assessment:
“Mr Thorp has no capacity to return to any type of alternative employment for which he currently has the necessary skills, training or experience. He has no current work capacity.
Mr Thorp is likely to have no work capacity for alternative employment in the future. He is effectively unemployable.”.
49 In a report dated 19 March 2009, Katrina Henderson, an occupational therapist, expressed a similar opinion to that of Mr Radley, commenting:
“I conclude no occupation for which Mr Thorp is likely to qualify meets the definition of suitable employment and this situation will continue indefinitely.”.
Finding
50 In my opinion, when account is taken of:
• Mr Dooley’s opinion that the plaintiff is fit only for light forms of work; •
Mr Murphy’s opinion that the plaintiff “would be doing fairly well” if he was able to work for twenty hours per week in paid employment;
•
Professor Disler’s opinion that the plaintiff has no incapacity for employment;
•
The opinion of Mr Brownbill that the plaintiff would have difficulty completing any retraining or returning to any work; and
•
The assessment of Mr Radley that the plaintiff is not a suitable candidate for formal occupational retraining and that it is likely that the plaintiff will have no capacity for alternative employment in the future;
the evidence overwhelmingly supports the conclusion that the plaintiff’s capacity for work has been permanently reduced by reason of his injury to a dramatic extent; the question really being whether he has a retained capacity for suitable employment at all.
51 In these circumstances, I am satisfied that any residual capacity which the plaintiff has for employment is minimal and that, at best, it would be a capacity for limited part-time work probably for less than 20 hours per week. I am further satisfied that this position is permanent and that the plaintiff is not a suitable candidate for retraining which will improve either his capacity for employment or the range of employment options available to him.
52 It follows from my findings that I am satisfied:
• that any residual capacity which the plaintiff has for employment is such that the plaintiff will suffer a financial loss of 40 per centum or more of the earning capacity available to him which was available to him but for his injury for the duration of his working life even were the plaintiff’s but for injury earning capacity to be fixed at the rate of his pay at the time of his injury; • that the plaintiff has established that by reason of the impairment in the function of his lumbar spine he will permanently “have a loss of earning capacity which will be productive of a financial loss of 40 per centum or more” in accordance with the meaning of that phrase as employed by the Act. 53 In these circumstances, I am satisfied that the consequences to the plaintiff of his loss of earning capacity are, when judged by a comparison with other cases in the range of possible impairments, fairly described as being more than “significant” or “marked” and as being at least “very considerable”; and that he has established that the loss of earning capacity associated with his injury meets the requirements of s.134AB(38)(e)(ii) of the Act.
54 Accordingly, the plaintiff is entitled to the orders he seeks in this application and I will hear the parties as to the precise form of the order which is sought and also upon the issue of costs.
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