Torre v Express Enterprises Pty Ltd
[2014] VCC 1737
•31 October 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY
Case No. CI-12-05751
| FRANCESCO TORRE | Plaintiff |
| v | |
| EXPRESS ENTERPRISES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 & 24 October 2014 | |
DATE OF JUDGMENT: | 31 October 2014 | |
CASE MAY BE CITED AS: | Torre v Express Enterprises Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1737 | |
REASONS FOR JUDGMENT
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Subject:Accident compensation – Serious injury – Application for leave to proceed under s 134AB(16)(b) of the Accident Compensation Act 1985
Catchwords: Injury to lower back – loss of spinal function - loss of earning capacity
Legislation Cited: s 134AB(16)(b) of the Accident Compensation Act 1985
Cases Cited:Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
Judgment: Leave to proceed granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr P G Montgomery | Nowicki Carbone |
| For the Defendant | Mr D McWilliams | Hall & Wilcox Lawyers |
HER HONOUR:
1 Francesco Torre brings this application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (“the Act”) seeking leave to proceed in respect to injury to his low back suffered during the course of his employment with the Defendant, Express Enterprises Pty Ltd.
2 Mr Torre seeks leave to proceed for both pain and suffering and loss of earning capacity damages.
3 He relies upon paragraph (a) of the definition of serious injury contained in s134AB(37) of the Act.
4 The claimed injury is injury to the low back and the relevant impairment is loss of function of the lumbar spine.
5 In the Originating Motion, Mr Torre sought leave to proceed in respect to both the claimed physical injury, namely the low back, and a psychiatric injury. At the commencement of the hearing, the application in respect to the psychiatric injury was abandoned.
6 Express Enterprises Pty Ltd operates a bodyworks business known as Mill Park and South Morang Smash Repairs. Mr Torre commenced employment with the Defendant on 15 July 2009 as a car detailer/paint polisher in their smash repair workshop. He has worked for more than 25 years as a car detailer and expert polisher.[1]
[1]Defendant’s Court Book (“DCB”) 57-8
7 His duties involved inspecting motor vehicles, paint work and movement of vehicles along an assembly line with denibbing (i.e. sanding and polishing using hand blocks of rubber and metal with sandpaper to rub down panels), thereafter polishing using a buffer variously squatting, bending, leaning, kneeling and flexing his body over extended periods and at conclusion of buffing driving the vehicle into a wash bay and conducting the final inspection, often involving repolishing of paint work.[2]
[2]Plaintiff’s Court Book (“PCB”) 3-4
8 Mr Torre noted the sudden onset of low back pain and right groin pain on 6 January 2011 whilst he was cutting and polishing a four wheel drive vehicle. He reported his pain and attended a doctor.
9 Initially it was thought that he had possibly sustained a hernia and following later investigations a small hernia was identified but that was not considered to be the source of his low back pain.[3] Thereafter the focus of his treatment has been the management of his back pain.
[3]PCB 4
10 Following a CT scan of the lumbar spine performed on 25 March 2011, the Plaintiff consulted Mr David de la Harpe, Orthopaedic Surgeon, who advised against surgery and recommended conservative management. That opinion was confirmed by Mr Justin Hunt, Orthopaedic & Spinal Surgeon, following subsequent review.
11 Following injury the Plaintiff has been treated conservatively with physiotherapy, acupuncture and pain relief medication. He remains under the care of Dr Chiang, a specialist general practitioner, who performs weekly medical acupuncture.
12 In cross-examination the Plaintiff stated that he manages his back pain with the occasional Endone which he takes on a bad day.[4] In re-examination, he stated he has a really bad day requiring Endone two to three times per week, and leaves the Endone (which was prescribed for a different medical condition) as a very last resort.[5]
[4]Transcript (“T”) 9, L1-22
[5]T75, L20-31; T76, L1
13 Mr Torre attempted a return to work for three to four weeks on light duties but ceased as those duties caused a flare up of back pain. He has not worked since March 2011. His employment was subsequently terminated.
14 There is an accepted injury occurring in the course of the Plaintiff’s employment that manifested itself on the 6 January 2011. The Plaintiff suffered a compensable low back injury by way of aggravation of a pre-existing degenerative spinal condition.
15 On behalf of the Defendant, Mr McWilliams submitted:
· Any physical consequences of the injury to the spine suffered by the Plaintiff are not more than significant or marked when judged by comparison with other cases in the range of possible impairments or losses of a body function, nor at least very considerable.
· The Plaintiff fails to satisfy the 40% loss of earning capacity requirement in s 134AB(38)(e).
· The Plaintiff has the capacity to earn at least 60% of his without injury earnings.
· The appropriate figure for “without injury earnings” is $1,100 gross per week.
· The Plaintiff is capable of earning his without injury earnings or at least 60% of that figure.
16 Mr McGarvie, on behalf of the Plaintiff, submitted having regard to the totality of the evidence, the Court ought to be satisfied that the Plaintiff does not have any without injury earning capacity, and on that basis he qualifies for leave to proceed on the basis of loss of earnings and consequentially pain and suffering consequences.[6]
[6]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
17 Having regard to the totality of the evidence I accept Mr McGarvie’s submission and therefore leave to proceed will be granted.
18 These reasons focus primarily on the evidence and submissions concerning the claimed loss of earning capacity.
19 Mr Torre and Dr Chiang were both called and extensively cross-examined.
20 No surveillance material was shown. The index to the Defendant’s Court Book confirmed that video surveillance of the Plaintiff was brought into existence for the dominant purpose of use in the litigation over which privilege was claimed.
21 Mr Torre adopted his sworn affidavits 10 July 2012, 24 September 2013, 23 October 2013 and 17 October 2014 with minor amendments only.
22 Mr Torre is 44 years of age and was born on 22 April 1969. He has always worked in occupations requiring basic level skills only, such as in his role as a car detailer.
23 Mr McWilliams was critical of both the Plaintiff and Dr Chiang’s evidence. He submitted that Mr Torre’s condition was a minor lumbar back condition. He referred to the MRI scan dated 12 June 2013 and submitted that it shows evidence of mild spinal pathology only. He submitted that there is no suggestion in any of the material that Mr Torre is a candidate for surgery. His condition has been treated conservatively with mild analgesics and medical acupuncture on a weekly basis. He submitted that treatment ought not impede the Plaintiff engaging in meaningful employment, such as that of a Locksmith or preparing Meals on Wheels meals for distribution.
24 I do not accept that Mr Torre’s condition can be described as a “minor” lumbar back condition. He did not have any back problems prior to injury. He was able to complete all the tasks associated with his occupation without limitation or restriction. In contrast the weight of medical opinion is that he can no longer perform his pre-injury duties.
25 Mr Justin Hunt, Orthopaedic and Spinal Surgeon, reviewed the Plaintiff at the request of Dr Chiang. He recommended that an MRI be performed. He reviewed him following the receipt of the MRI performed on the 12 June 2013.
26 The MRI demonstrated evidence of a grade 1 spondylolisthesis with a broad-based disc bulge which extended into the foramen on the right side, causing foraminal stenosis.
27 Mr Hunt did not recommend surgery but that remains a possibility should the Plaintiff’s symptoms of leg pain worsen.[7]
[7]PCB 60
28 I prefer and accept the description of Mr Justin Hunt concerning the nature of the Plaintiff’s back condition, namely that the findings on MRI reveal fairly significant structural abnormality (my emphasis), and that the Plaintiff’s symptoms relating to the L5-S1 spondylolisthesis makes his spine somewhat vulnerable to repeated exacerbation of symptoms due to the advanced degenerative disc disease and also the presence of foraminal stenosis which results in nerve root irritation.[8]
[8]PCB 61
29 Mr McWilliams submitted that the Court ought to be guarded in accepting the Plaintiff’s complaints of pain because of inconsistencies in the material which is contained in the medical evidence and also the answers solicited in cross-examination and observations made in Court.
30 He relied on the fact that the Plaintiff was able to enjoy going to Crown Casino over the 14 month period (1/2/2012 to 9/4/2013) and during that time he was going there on a daily basis, for up to five hours a day at different times, and that he had an ability to undertake various activities.
31 He submitted that the Plaintiff’s explanation for stopping his attendances at Crown Casino was disingenuous. Mr Torre’s evidence was that he stopped going because he did not want the Court to have the perception that he was a person who had a gambling problem.[9]
[9]T43, L12-15
32 The Plaintiff’s friend, Salvatore Galioto states in his affidavit sworn 27 September 2013 that he encouraged the Plaintiff to go with him to Crown Casino to encourage him to cope with his lower back injury and depression. He confirmed the Plaintiff would accompany him and join him for complimentary meals and access to the hydrobaths at the complex. He often remarked to him that the baths assisted with his back pain.[10]
[10]PCB 104b
33 I accept that the Plaintiff did attend the Crown Casino with frequency over the time recorded. However, I accept the Plaintiff’s evidence that because of the privileges he had at Crown Casino he would undertake a variety of activities there in addition to gambling and that he could sit, stand and move around at will. His attendances allowed him to use hydrotherapy pools and hot saunas that alleviated his pain. He would go there to fill in his days and to socialise with friends. I also accept his explanation for stopping his attendances at the casino.
34 I reject the suggestion made by Mr McWilliams that I ought to be slow to accept Mr Torre’s evidence relating to the necessity to seek stronger pain medication whilst he was in Thailand earlier in 2014.
35 Mr McWilliams highlighted the fact that it was not until the hearing that this was mentioned by Mr Torre. He submitted that it shrouds the Plaintiff’s evidence in a lack of candour because he omitted this in his latest affidavit. Whilst Mr Torre made specific reference to treatment he received whilst overseas, including hot rock treatment and some acupuncture, he made no reference to having to attend a pharmacist in Thailand.
36 I accept that Mr Torre’s memory was genuinely revived in cross-examination and that he did suffer a flare up of back pain whilst in Thailand that required stronger pain relief.
37 In Dr Chiang’s clinical notes on 21 January 2014 it is recorded that the Plaintiff had been away overseas and was sick when there. That is consistent with the time he was away in Thailand.
38 Mr McWilliams referred to an entry in Mr Giovannucci’s notes. He is the Plaintiff’s physiotherapist. The notes of 23 October 2012 record that the Plaintiff could sit for one to two hours pain-free.
39 During the hearing he asked Mr Torre, “Did you tell your physiotherapist back in October 2012 that your back pain has been under control?” Mr Torre could not remember. He said “the pain was not under control back then and [his] physio just treats the pain, if anything”.[11]
[11]T18, L16-21
40 I note that the previous entry on 30 September 2012 noted Tramal was prescribed by the GP. The full entry for 23 October 2012 records: “Reports that pain has been under control. Pain medications giving him constipation. Can sit 1-2 hours now no pain.”
41 From that entry I infer that the Plaintiff had been taking Tramal and that medication controlled the pain. However, the Plaintiff was required to stop taking Tramal as it caused constipation and rectal bleeding.[12]
[12]T76, L6-23
42 I am therefore not convinced that Mr Torre was “pain free” with an ability to sit for one to two hours thereafter.
43 Mr Torre was observed to be seated throughout the time he gave his evidence. He did not appear to exhibit any obvious postural discomfort. He gave his evidence with one short break of approximately 10 minutes. He was in the witness box for an hour and 47 minutes in total.
44 I do not accept that that alone demonstrates a capacity to remain in a seated position for lengthy periods. Pain is subjective. I prefer to rely on the expressed opinion of Dr Chiang who has had the very real advantage of seeing the Plaintiff regularly on a weekly basis in the context of managing his injury.
45 Ultimately, I do not believe that this is a case where the Plaintiff has set out to embellish his problems so as to convince the Court he is more disabled than what the medical evidence otherwise suggests.
46 Mr McWilliams made much of the fact that Mr Torre said in his evidence that he did complain to Dr Chiang about pain radiating from his back down into his legs to his toes.[13]
[13]T22, L22 and T23, L18
47 The clinical notes that have been tendered do not make reference to complaints of referred pain. There is reference to difficulty walking on a couple of occasions but nothing noted beyond that.
48 Given the brevity of Dr Chiang’s notes, I do not hold that against the Plaintiff.
49 Further Dr Chiang in his evidence confirmed that those complaints would have been made to him but that they would not appear in every note that he has recorded. He said that if it has been ongoing he would just treat it accordingly.[14]
[14]T92, L10-14
50 Dr Chiang’s evidence in cross-examination was to the effect that the Plaintiff’s diagnosis is a discogenic abnormality and by its nature that implies that there will be referred or radiating pain down the legs.[15]
[15]T92, L26-28
51 When the Plaintiff has been examined by other examiners for medico-legal purposes for the Defendant, he has made reference to this complaint.
52 Mr Battlay stated, following his examination on 27 April 2011, that clinically the Plaintiff has definite right sided sciatic nerve root irritation.[16] Also, on the second occasion he saw him on 22 October 2012, he recorded very minimal, if any, sciatic nerve root irritation on the right side with no radiculopathy.[17]
[16]DCB 3
[17]DCB 26
53 Dr Barton in his report dated 17 October 2011 stated that the Plaintiff has evidence of a lower back injury with radicular features.[18]
[18]DCB 10
54 Mr Elder who examined him on 19 June 2012 noted the current symptoms were of low back pain radiating to the right buttock and it occasionally radiated to the left buttock.[19]
[19]DCB 15
55 Mr McArthur considered that the Plaintiff had signs suggestive of radiculopathy.[20]
[20]DCB 33
56 In addition, Mr Lui, Physiotherapist, notes that the Plaintiff was constant in his report of pain in the lower back radiating into his buttocks and legs.[21]
[21]DCB 91
57 Given that evidence I consider that it is likely that the Plaintiff has complained of pain of that nature to his general practitioner and that the general practitioner has simply omitted to record it in his notes.
58 Overall, I found the Plaintiff to be candid in his evidence. He is a man who has limited formal education having only completed Year 10 at a technical school. He is not very sophisticated and it was obvious at many times during the cross-examination that he was having difficulty comprehending what was being asked. I considered him to be genuine and accept what he states are the consequences of the claimed low back injury.
59 Mr McWilliams submitted that the court ought to be guarded about receiving the evidence of Dr Chiang because he was more of an advocate for the Plaintiff.
60 He submitted that the conclusions that Dr Chiang makes in his reports are inconsistent with the objective findings that he has recorded in his clinical notes. Further, it is also inconsistent with the Plaintiff’s evidence; in particular, the Oswestry Disability Questionnaire which the Plaintiff completed for his treating physiotherapist where the Plaintiff ticked that “Pain has no significant effect on my social life apart from limiting my more energetic interests eg sports”.
61 The clinical notes of Dr Chiang that were tendered relate to the period from 14 March 2013 to 22 October 2014. They are recorded using a computer program. Dr Chiang is a very experienced doctor who has regularly reviewed and treated the Plaintiff since 26 July 2011. The entries are notable for their brevity. However, they do confirm consistent complaints of ongoing low back pain, reduced range of movement,[22] difficulty walking,[23] and the Plaintiff complaining of being “very bad in the last few weeks”.[24]
[22]8/7/14 and 1/10/13
[23]29/10/13
[24]11/4/2013
62 Dr Chiang does employ the use of the words “slight” and “some” tenderness to describe his findings on examination. The use of those descriptors does not preclude a finding that the Plaintiff has persistently exhibited tenderness at the low back region as set out in Dr Chiang’s report of 6 February 2012.[25]
[25]PCB 41
63 I found Dr Chiang to be a convincing witness. I accept his views concerning the nature of the Plaintiff’s pain and his functional capacity. I do not consider the fact that Dr Chiang disagrees with the one answer in the Plaintiff’s Oswestry Disability Questionnaire to make any significant difference to my acceptance of his opinion.
64 I find that his views are consistent with the expressed views of the consultants who have examined the Plaintiff at the request of his solicitors to which I shall later refer.
65 The real dispute in this application is whether the Plaintiff has a residual capacity for work.
66 Mr McWilliams submitted that the Plaintiff has the capacity to work as a Locksmith or a Packer (Light). Those roles were recommended by Ms Joanne Bryant, Occupational Therapist, in the CoWork Pty Ltd report dated 21 October 2013. She considered that the Plaintiff had a retained capacity for part-time or full-time work in the sedentary to light classification.[26]
[26]DCB 57-4
67 Mr McGarvie urged the Court to reject those proposed occupations as being suitable having regard to the expressed opinion of Dr Chiang and the extended Vocational Assessment of Suzanne George, Occupational Therapist dated 17 March 2014 who had regard to the evidence sought to be relied upon by the Plaintiff.
68 Ms George, Occupational Therapist, engaged by Evidex, interviewed the Plaintiff on 20 February 2014. She disagreed with the recommendations made by Ms Bryant, Occupational Therapist, that Mr Torre could perform work as a Locksmith or as a person who prepares Meals on Wheels for distribution.
69 Ms Bryant’s report had real and significant limitations. She did not interview Mr Torre for the purposes of preparation of her report. She relied on the expressed opinions contained in the medical reports, solicited by the Defendant, of Mr Richard MacArthur, Orthopaedic Surgeon, Mr Peter Battlay, General Surgeon, Dr David Barton, Consultant Occupational Physician, and Dr O D Barclay’s Certificate of Capacity prior to 19 January 2011.[27]
[27]DCB 57-3
70 Dr Barclay was only involved in the Plaintiff’s care initially, when it was thought that he had suffered a hernia. He has not been involved with the Plaintiff’s ongoing management.
71 In addition, Ms Bryant only had access to the second sworn affidavit of Francesca Torre, dated 14 September 2013. She did not have the comprehensive medical material relied upon by the Plaintiff that was provided to Ms George, including all the relevant radiology.
72 Ms Bryant concluded, notwithstanding the medical restrictions caused by the low back injury, that Mr Torre retained a residual capacity for part-time or full-time work in sedentary to light classification, and she recommended a number of occupations as being suitable; namely, Product Examiner (Automotive), Mobile Speed Camera Operator, Locksmith and Packer (Light).
73 During this application Mr McWilliams limited his reliance to two roles only, namely that of Locksmith and, secondly, Packer (Light) being a person employed in the preparation of Meals on Wheels meals for distribution.
74 The duties, demands, training and job availability for both roles are set out in the materials.[28]
[28]DCB 57-12 - 57-13
75 Prior to considering the suitability of these roles, I have considered the medical evidence.
The Plaintiff’s medical evidence
76 The doctors who have treated Mr Torre, including his general practitioner, Dr Chiang; Mr David de la Harpe, Orthopaedic Surgeon; Mr Justin Hunt, Orthopaedic & Spinal Surgeon, have expressed views about the nature of the injury and its impact on the Plaintiff’s residual employment capacity.
77 In addition, the Plaintiff relies upon reports from the treating physiotherapist, Mr Nando Giovannucci, and medico‑legal specialists, Dr H Sutcliffe, Occupational Physician, and Mr D Brownbill, Consultant Neurosurgeon.
78 I am satisfied that the general consensus of opinion is that as a consequence of his employment, the Plaintiff suffered an aggravation of a pre-existing asymptomatic lumbosacral spondylolisthesis with likely intervertebral disc damage giving rise to local pain and by referral of right buttock pain.
79 The universal opinion expressed by those doctors relied upon by the Plaintiff is that Mr Torre is not fit for his pre-injury duties.
80 Since 6 January 2011 the Plaintiff has consistently complained of low back pain with some associated thigh pain and numbness symptoms and occasional referral of pain down the legs to the toes.
81 Investigations in the form of x‑rays and CT scan of the lumbar spine show spondylolisthesis at L5-S1 and an MRI scan performed on 12 June 2013 demonstrates evidence of a grade 1 spondylolisthesis with a broad based disc bulge which extends into the foramina on the right side causing foraminal stenosis.
82 Dr Chiang states that Mr Torre has no capacity for part-time or full-time employment in alternative duties and in fact has no residual work capacity.[29]
[29]PCB 47a
83 In cross-examination he confirmed his expressed opinion that the Plaintiff had a serious or severe lower back injury which impacts on his daily life and he has no capacity to work.[30] He is unable to be engaged or to be employed for any meaningful duties.[31]
[30]T85, L21-27
[31]T86, L15-17
84 He confirmed that the Plaintiff’s condition was stable but fluctuating.[32] The condition is permanent and his prognosis is quite poor. [33]
[32]T87, L3
[33]T87, L6-9
85 Mr David de la Harpe reviewed the Plaintiff on 18 October 2011. He did not feel at that time that he had a fitness to return to pre-injury employment or alternative duties and the prognosis was somewhat guarded.[34]
[34]PCB 49
86 Mr Justin Hunt saw him initially on 1 June 2013 and reviewed him further on 27 June 2013 following the MRI scan that was performed on the 12 June 2013.
87 He confirmed that the Plaintiff suffered symptomatic spondylolisthesis at L5-S1 and that the clinical presentation did match the imaging findings as demonstrated on the MRI scan and he considered the origins of his symptoms to be quite clear.[35]
[35]PCB 61
88 Mr Hunt expressed the view that it is likely, given the history of the ongoing symptoms being present since 6 January 2011 and continuing, that they will be ongoing into the foreseeable future and it is unlikely that the Plaintiff’s symptoms will settle spontaneously and the spine is likely to always be a weak point.[36]
[36]PCB 62
89 Mr Hunt agreed that Mr Torre did not have the ability to perform pre-injury employment due to the ongoing nature of the symptoms and the likelihood of the symptoms being further exacerbated by work that requires bending, lifting and twisting activities.[37]
[37]PCB 62
90 He further stated that it would be difficult for the Plaintiff to undertake regular part-time or full-time employment. He opined that there may be a possibility that he could perform sedentary type work if that was available. He does nonetheless consider the residual employment capacity is somewhat limited due to Mr Torre’s education and training and lack of ability for him to partake in light physical or physically demanding employment.[38]
[38]PCB 63
91 He anticipated that the restrictions and preclusions that are present are likely to persist into the foreseeable future given the chronic nature of the symptoms that he currently experiences.[39]
[39]PCB 64
92 Mr Giovannucci, Musculoskeletal Physiotherapist, confirmed that Mr Torre is suffering lumbar discogenic strain affecting the L4-5 and L5-S1 spinal levels. He considered that he is totally incapacitated for pre-injury duties.[40]
[40]PCB 40
93 He considered he would have a capacity for alternative duties which would incorporate sitting, standing and walking postures but the Plaintiff did not have the capacity for sustained postures which increased spinal loading.
94 He considered that Mr Torre’s residual employment capacity remained low due to the permanent impairment and disability affecting his lumbar spine, age, education, skills and training.[41]
[41]PCB 40d
95 Dr H Sutcliffe, Occupational Physician, examined the Plaintiff on two occasions, on 23 January 2013 and 5 March 2014. She confirmed the Plaintiff’s diagnosis being aggravation of spondylolisthesis of L5-S1, onset of disc derangement at L5-S1 with onset of nerve root impingement during the course of the employment as a finisher. Her examination confirmed restriction of the range of movement, alteration in sensation in the right lateral thigh and no other neurological abnormalities.
96 In her report dated 25 March 2013 Ms Sutcliffe confirmed that her investigations confirmed the spondylothesis and impingement and narrowing of bilateral neural foramina.
97 She confirmed Mr Torre has no capacity to return to the pre-injury occupation as a result of the onset of the low back injury. She further considered that he has no capacity for any pre-injury employment now or into the future given the nature of the employment where he requires flexibility, force, repeated bending, twisting, turning, lifting and rotation of the lumbosacral spine on a prolonged basis each day.[42]
[42]PCB 74
98 In particular, it is of interest to note that she found the Plaintiff to have limitation of the range of movement of the lumbar spine and some signs of nerve root irritation with limitation of straight leg raising. There was no specific neural abnormality, however, other than altered sensation to light touch in the lateral right thigh.[43]
[43]PCB 75
99 Insofar as his residual employment capacity is concerned, she did not believe that he had capacity for full-time or part-time work taking into account his age, education, training and past work experience.[44]
[44]PCB 77
100 She confirmed her previously expressed opinion following further examination on 5 March 2014.
101 Mr David Brownbill, Consultant Neurosurgeon, examined the Plaintiff on 4 June 2013, 27 August 2013 and 15 October 2014.
102 Mr Brownbill accepted that the Plaintiff sustained aggravation of the pre-existing asymptomatic spondylolisthesis giving rise to back pain and by nerve root irritation right lower limb pain as a consequence of his employment.[45]
[45]PCB 83
103 He confirmed that the Plaintiff will need to avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. He would not be able to return to the described pre-injury employment.[46]
[46]PCB 83
104 He postulated that if pain increased or the signs of radiculopathy develop, consideration may need to be given to the performance of an L5-S1 spinal fusion operation. Mr Hunt agrees with that expressed opinion.
105 Mr Brownbill considered that as a consequence of the physical effects of the low back injury, Mr Torre is restricted in his ability to undertake regular full-time or part-time employment in a moderate to marked degree (noting radiological investigation results and the described ongoing activity-related pain).[47]
[47]PCB 84
106 Following the second review on 27 August 2013, Mr Brownbill confirmed on the balance of probabilities that Mr Torre would have difficulty performing any employment for which he is suited in an ongoing or reliable fashion.[48]
[48]PCB 89 and 92c
107 In particular, Mr Brownbill considered the roles of Locksmith and Packer and confirmed that he agreed with the Plaintiff’s expressed opinion that he would not be able to perform those roles due to prolonged standing that is required that would aggravate his low back pain.[49]
[49]PCB 92e
The Defendants’ medical material
108 Mr Peter Battlay, Surgeon, examined Mr Torre on 27 April 2011 for the purposes of an independent medical assessment and on 22 October 2012.
109 He confirmed as a consequence of employment that Mr Torre suffered aggravation of a disc derangement being the lower lumbar disc derangement in the context of a developmental grade one spondylolisthesis.[50]
[50]DCB 3
110 When he examined the Plaintiff on a second occasion on 22 October 2012, he considered back function had improved and that the Plaintiff had very minimal if any sciatic nerve root irritation on the right side with no radiculopathy.[51]
[51]DCB 26
111 Mr Battlay considered that he was fit for light duties with a restriction on repeated and sustained bending below waist height and manual handling in excess of five to 10 kilograms. He considered that he does have a loss of body function or impairment resulting from the compensable injury and that will continue for the foreseeable future.[52]
[52]DCB 27
112 Dr David Barton, Consultant Occupational Physician, reviewed the Plaintiff on 11 October 2011, 8 October 2012, 11 June 2013 and undertook a workplace visit on 14 October 2011. He accepted that there was some evidence of a lower back injury with radicular features.[53]
[53]DCB 10
113 Notwithstanding he accepted the Plaintiff had suffered a compensable injury as a consequence of his work, he considered that he had the capacity to return to suitable light work when he examined him on 11 October 2011.
114 In October of 2012, he confirmed that the Plaintiff presented with fairly persistent back pain, some numbness in the right leg and strong belief that he could not return to work. He considered that there was not much to find on clinical examination. Whilst the Plaintiff reported some numbness in the right leg, that would normally be considered to be a fairly minor problem and there were no other features to suggest any significant radiculopathy.[54]
[54]DCB 21
115 At the final review on 11 June 2013, he considered that on his clinical assessment there was not a lot to justify the current level of incapacity and attributed the Plaintiff’s inability to work to poor motivation to increase his level of physical activity. As a result, he seemed to be spending more time resting at home and gaining weight.[55]
[55]DCB 39
116 His expressed opinion is that his findings on examination showed little in the way of any significant back problem which coincides with the minor radiological findings.[56]
[56]DCB 39
117 He considered that the Plaintiff would be able to undertake his pre-injury employment. Ultimately, Mr McWilliams did not seek to rely on this aspect of his expressed opinion.
118 Dr Barton further considered that he has the physical capacity to undertake the jobs identified in the report prepared by CoWork and that there is no particular medical reason why he could not return to work to do those duties on a sustained and regular basis.[57]
[57]DCB 40A
119 His expressed opinions are in contradistinction to those of Mr Hunt who expressed the view that Mr Torre does have significant discal injury with significant limitations on his ability to work.
120 Given that I accept the Plaintiff’s evidence about the nature of his injury and the ongoing chronicity of his pain, I prefer and accept the expressed opinion of Mr Hunt. Mr Hunt’s opinion is supported by the expressed opinions of Dr Chiang, Dr Sutcliffe and Mr Brownbill.
121 Finally, Mr Wei Yang (William) Liu, Musculoskeletal Physiotherapist, reviewed Mr Torre at the request of Dr Chiang for treatment on 20 April 2012.
122 He confirmed that on his examination the Plaintiff had a restricted range of movement of the lumbar spine limited to half the normal range of flexion/half the normal range of extension; half the normal range of left rotation/half the normal range of right rotation; half the normal range of left lateral flexion/half right lateral flexion. On palpation, there was hypertonicity (excessive tension of the muscles) of the erector spinae muscles on the L3-5 spinal segments and restriction found centrally in the L3-4, L4-5 and L5-S1 spinal segments. Neurological examination of the lower limbs showed normal reflexes for the knees and ankles.
123 He diagnosed lumbar discogenic strain affecting the L4-5 and L5-S1 spinal levels attributed to his employment. He confirmed the Plaintiff remained totally incapacitated for pre-injury duties. He considered that he would be able to engage in light modified sedentary duties that involved varying spinal postures of sitting, standing and walking.[58]
[58]DCB 93
124 Having regard to the totality of the evidence I am not satisfied that Mr Torre has the capacity to undertake a role as either a Locksmith or Packer.
125 The Locksmith job would require extensive retraining and would require the Plaintiff to undertake Certificate III Locksmithing at NMIT which is an apprenticeship course. That requires that he be employed full-time with a Locksmith.[59] The Plaintiff confirmed in his evidence that he had learning difficulties and had difficulties following simple instructions.[60] Given the Plaintiff’s limited education and poor literacy skills,[61] it is not likely that he would be able to cope with the academic requirements of the course.
[59]PCB 104x
[60]T82, L3-11
[61]As set out in Ms Suzanne George’s report, PCB 104m
126 Further the role as described would require the ability to work without any physical restrictions. The role requires the ability to stand and good manual dexterity.
127 Ms Bryant only observed the worker at the business premises she attended and did not observe any on-site installations of physical and/or electronic locking systems. She accepts that such work may require reaching.
128 Mr Torre is a man of very short stature. He has gained weight since injury. These are factors that Ms Bryant has not referred to, both of which would impact on the Plaintiff’s ability to reach.
129 Given the vast array of situations where security systems are employed in both domestic and commercial settings, the ability to climb up and down ladders and to reach is in my view likely to be expected of such a worker. The writer also acknowledges that some bending may be required and frequent kneeling when fitting locks. Both of those tasks would be unsuitable for Mr Torre.
130 I also consider that whilst fitting locks common sense dictates that it would on occasion involve bending from the knees and twisting or kneeling to access the lock. This would not be suitable for the Plaintiff.
131 Further, the job would require him to be able to handle a 12 to 15 kilogram toolbox off site.[62] Even if the toolbox was broken down into two parts it would exceed the suggested limits on weight previously recommended for the Plaintiff. (See Dr Peter Battlay’s limitation on lifting between five to 10 kilograms).[63]
[62]DCB 57-22, figure 2
[63]DCB 27
132 A trolley would not always obviate the need for carrying the toolbox, particularly if required to attend premises with stairs and no lift.
133 The particular requirements of the job were not put to Mr Torre in cross-examination. He was merely asked whether he could drill a hole.
134 Ms George summarises Mr Torre’s limitations with regard to his low back. He should avoid:
· More than minimal manual handling including lifting, carrying, pushing and pulling;
· Frequent or prolonged bending of the lower back;
· Twisting of the spine;
· Prolonged walking, standing or sitting.[64]
[64]PCB 104m
135 I accept that as being a reasonable summary of the recommendations made by the various examiners. Furthermore, Ms George observed that he was unsteady squatting and crouching and required support to rise from those postures, and therefore in her opinion, safe manual handling was compromised.[65]
[65]PCB 104m
136 I prefer the expressed opinion of Ms George that the majority of physical demands would be beyond Mr Torre’s functional capacity due to his lower back injury for the reasons that she has articulated.[66]
[66]PCB 104x
137 Having observed the Plaintiff in person over the course of the hearing and accepting that he has real physical limitations following injury that would prevent him from being able to successfully undertake the tasks required of a Locksmith, I do not consider this job to be suitable.
138 In so far as the Meals on Wheels preparation job was concerned, Ms Bryant acknowledged that it is a standing job.[67]
[67]DCB 57-13
139 Ms George states that prolonged standing at a workbench to decant, sort and pack food into Eskys would be unsuitable. Further, any frequent bending of the lower back to retrieve items including Eskys from lower racking, sorting and packing food whilst standing at a workbench and pushing the Eskys onto storage racks at lower levels or cartons of packaged goods onto pallets for despatch would not be within his functional capacity.[68]
[68]PCB 104y
140 Further the job does require ability to concentrate, accuracy and attention to detail. Being able to be punctual and to multi task and meet deadlines are part of the necessary attributes for the role.
141 Given that Mr Torre experiences chronic pain with functional restrictions, it is not likely in my view that he would meet all those criteria, as well as the ability to perform all the typical duties specified.
142 Therefore I do not consider he could perform this role.
143 Overall, I accept and adopt the expressed opinion of Ms George that Mr Torre is unsuitable for these nominated roles and further he has no residual work capacity. I find that this situation is likely to continue for the foreseeable future.
Conclusion
144 I am satisfied that the Plaintiff has established that as a consequence of the injury to his lumbar spine, he presently suffers and will continue to suffer a loss of earning capacity measured in accordance with the statutory formula which is at least a loss of 40 per cent or more on an indefinite basis.
145 I therefore propose to grant leave to the plaintiff to bring proceedings at common law in respect of a loss of earning capacity on the basis that the injury to the Plaintiff’s spine is a serious injury as defined and satisfies the statutory test for leave to be granted in respect of loss of earning capacity.
146 In light of the authority in Advanced Wire & Cable Pty Ltd & Anor v Abdulle it is unnecessary for me to separately consider a grant of leave for pain and suffering damages.
147 Orders will be made granting leave to the Plaintiff to bring proceedings against the Defendant in respect to injury to the low back suffered during the course of employment for both pain and suffering and loss of earning capacity damages.
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