Trotman v AVS Group of Companies Pty Ltd
[2015] VCC 1054
•6 August 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-00232
| GRAHAM TROTMAN | Plaintiff |
| v | |
| AVS GROUP OF COMPANIES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 June 2015 | |
DATE OF JUDGMENT: | 6 August 2015 | |
CASE MAY BE CITED AS: | Trotman v AVS Group of Companies Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1054 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the lumbar spine – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38); WorkCover (Litigation and Claims) Legal Costs Order 2010
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment:Leave granted to bring proceedings for damages for loss of earning capacity.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell QC with Mr G Worth | Nowicki Carbone |
| For the Defendant | Mr C D N Griffin | Minter Ellison |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 23 December 2011 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only.
3 By notice pursuant to s4A of WorkCover (Litigation and Claims) Legal Costs Order 2010, the Victorian WorkCover Authority gave notice it was satisfied the injury alleged to have been suffered in the course of the plaintiff’s employment and in particular, on 23 December 2011, satisfied the requirements of s134AB(38)(b)(i) but not the requirements of s134AB(38)(b)(ii).
4 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
5The body function relied upon in this application is the lumbar spine.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
7 By s134AB(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 comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
8 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.
9 In this case, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
10 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
11 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
12 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
14The 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
15 The plaintiff is presently aged fifty-eight, having been born in Melbourne in July 1957. Having left school at fifteen, he undertook an apprenticeship as a wool classer for short time. He then worked for Borthwicks as a butcher for ten years and later for V/Line as a forklift driver, also for about ten years.
16 From 1978, the plaintiff also has undertaken security work, having obtained a security licence in about 1988 when he worked part time in Macs Hotel as a security guard.
17 In about 1993, when the plaintiff left V/Line, he started full-time work as a security guard and crowd control at Macs Hotel. He worked until about 1996. He then did security work at a Carlton hotel for approximately four years and in about 2000, he started security work with the defendant at Werribee Plaza Tavern (“Werribee”).
18 In about 2006, the plaintiff injured his right shoulder in a fight at the Werribee nightclub. His general practitioner, Dr Robson, referred him to Mr Miller, an orthopaedic surgeon, who arranged an MRI scan of his shoulder later that year. As a result of that injury, the plaintiff’s right shoulder blade sticks out and he has lost some strength in his right arm and shoulder, and continues to suffer some pain on physical stress.
19 There was a further shoulder injury on 1 December 2010 when the plaintiff hurt his shoulder attempting to break up a fight at work. He attended a general practitioner and an ultrasound was undertaken. The plaintiff had a few weeks of increased shoulder pain and was off work for about a week.
20 The plaintiff’s right shoulder nearly returned to normal. Whilst he initially stated he had stopped taking medication for his shoulder at the time of the incident,[3] he then agreed that he was taking Voltaren up to that time. However, he was able to do heavy work duties such as clearing coins at the poker machine venue – an activity requiring him to raise his right arm above shoulder height.[4]
[3]Transcript “T” 24
[4]T25 – T26
21 The plaintiff did not bring proceedings in relation to any shoulder injury prior to the said date.[5]
[5]T33
22 Whilst in the defendant’s employ, the plaintiff worked about 45 hours a week and was paid about $1,125 gross weekly.
23 On the said date, the plaintiff slipped on water on the floor under the bar and fell backwards on his elbows and base of his spine (“the incident”).
24 Following the incident, the plaintiff had elbow, back and neck pain, as well as right shoulder pain, but thought his symptoms would resolve. He continued to work with difficulty, with the assistance of painkillers, but the pain, particularly in his right shoulder, began to worsen.
25 On about 26 March 2012, the plaintiff woke with a lot of pain in his neck, right shoulder and arm, and could hardly move his arm. He attended a local general practitioner and was given a week off work. He then saw his general practitioner, Dr Jacobs, who organised an MRI scan and a WorkCover claim was lodged. WorkCover took over the conduct of the plaintiff’s claim as the defendant was uncooperative.
26 The plaintiff last worked with the defendant in April 2012.
27 Having had further investigations, the plaintiff was referred to Mr Han, a neurosurgeon, whom he saw in September 2012. He suggested physiotherapy, which the plaintiff attended weekly until early 2013 and then twice a month, and then once a week. This treatment, together with acupuncture, provided temporary relief.
28 Since medical expenses and weekly payments were terminated in late 2013, the plaintiff has had physiotherapy irregularly, about every two weeks, as he cannot afford it. Lack of treatment has caused worsening of his pain.
29 Mr Tan reviewed the plaintiff in January 2014 and April 2015 and advised him that there was nothing further that could be done. He advised conservative treatment and that the condition was not likely to improve.
30 The plaintiff has continued to suffer neck pain and he still sees Dr Jacobs monthly for certificates and monitoring of his painkilling medication.
31 The plaintiff uses heat packs and cold packs. On days when his pain is particularly severe, he takes Voltaren, 25 milligrams two at a time and two to four Panamax which he alternates with Panadeine Extra to manage with breakthrough pain. He takes this medication most of the time – not every day, probably four or times a week, and it relieves his pain a little bit.
32 The plaintiff does not want to take more medication as Dr Jacobs has discussed with him that his level of intake of painkillers could interact badly with his blood pressure medication.[6]
[6]T59
33 The plaintiff’s neck is particularly stiff in the morning and he has to be careful of all movements to avoid any jarring of his neck. A hot shower in the morning helps with his neck and he tries to keep his head still while shaving and cleaning his teeth. He has to lie on the bed to limit the strain on his neck when putting on his boots.
34 The plaintiff does exercises at home three times a day as directed by his physiotherapist.
35 The plaintiff continues to experience significant pain and limitation in his neck and right shoulder, which radiated from the top of his shoulder to his forearm. That pain is persistent and can fluctuate, but there is a consistent dull ache and sometimes there is pain for no particular reason.
36 The plaintiff’s pain levels fluctuate and can be aggravated, depending on activity. Sometimes simple movements, such as turning his head, can aggravate his neck pain.
37 In cross-examination, the plaintiff denied he told doctors the pain radiating from his neck to his shoulders comes and goes. He has daily pain but he has good and bad days.[7] If he told a doctor his pain was 4 out 10, that would have been his level of pain when seen that day. On those days, he would not need medication unless he had to go out and do something and he would then take a tablet. Sometimes his neck is very painful and he has to take medication. If he turns too quickly or too sharply, he gets pain.
[7]T14
38 The plaintiff also suffers significant headaches which go down into his ear on the back of his head that he had never had before. Sometimes there are headaches with the neck pain.[8] Dr Jacobs has attempted to investigate the cause of the plaintiff’s headaches but the results have been inconclusive.
[8]T57
39 The plaintiff has difficulties with activities of daily living, such as carrying groceries, and holds them mostly with his left hand. He has difficulty dressing himself and has to be cautious putting on his clothes.
40 The plaintiff has a weaker right hand, grip and arm strength.
41 The plaintiff can manage with household activities as long as he does not push himself and he takes it easy. He can manage mowing, vacuuming and taking the washing off the line with his left hand. These take longer than pre-injury and he often sought assistance with these tasks from his son when his wife was awaiting lower back surgery. He often took painkillers to do those duties. He has been told by his doctor not to lift.[9]
[9]T56
42 After driving for about 20 or 30 minutes, the plaintiff needs to take his right arm off the wheel. When driving for more than 30 minutes, he has increased neck discomfort. In those circumstances, he tries to get someone else to drive, otherwise he takes painkillers. He tries to limit head movement while driving.
43 When the plaintiff moves his head quickly or is just sitting there looking at the television, he has a sharp shooting pain down his shoulder into his arm. He can only sit for about 20 minutes before he needs to rotate his neck. He has to move about in television advertisement breaks. He needs to move away and free his neck up after about 15 minutes if he is at a bench or sink, or reading. After about 10 minutes, he needs a break or else, his neck pain and headaches worsen.
44 The plaintiff continues to experience sleeping difficulties, often sleeping late in the evening and waking up intermittently during the night, sleeping predominantly on his back or right side.
45 Probably five nights a week the plaintiff wakes up during the night. He does not go to bed until 11.00pm and gets into a deep sleep and wakes up in pain. He slides out of bed so he does not wake up his wife. He does exercises on the floor and then stands watching television for about 20 minutes. If the pain does not go, he takes a tablet. He has had to change to a thinner pillow which has given him some relief.[10]
[10]T57
46 Prior to the incident, the plaintiff was quite fit and athletic and often used to box at home and train in martial arts with his boys, who are martial arts enthusiasts, but he is no longer able to do this since his injury.
47 The plaintiff avoided running and he had put on weight since the injury, having increased from 97 to 109 kilograms as at the date of September 2013 when he swore his first affidavit. At that time, the plaintiff had problems skeet shooting at the Werribee Rifle Club, camping and playing football with his sons. His social life is also restricted, and sexual relations had ceased.
48 The plaintiff can no longer do household maintenance like painting the side fence which he did in 2008. He still mows the lawn but does so using mainly his left arm.
49 Dr Jacobs has certified the plaintiff completely unfit for work and the plaintiff has lost his ability to earn income. He is not eligible for Centrelink because of his wife’s income.
50 As a result of his injury, the plaintiff believes he has no capacity to do work in a bar, sales, or as gaming attendant, security officer static, light process worker, machine operator, product assembler, hand picker or crane operator as suggested by Ayres, as he has limited transferrable skills, education and considerable limitation with respect to his shoulder and neck injury.
51 The plaintiff has very basic literary and computer skills. He sought assistance from a friend to put together a resume, as he does not have an email address.
52 The plaintiff does not have sales experience and has limited ability to lift and carry objects. He has attempted to look for work which he believes would be generally suitable with respect to his education and work experience; however, many of the jobs are unsuitable for his neck and right shoulder due to the restrictions imposed by his injuries.
53 As the plaintiff’s pain levels fluctuate and some days he suffers severe pain, he would find it very difficult to attend work. He believes he would be an unreliable employee and a liability for an employer.
54 The plaintiff attended DSS earlier this year enquiring about his entitlement to benefits, as he was experiencing financial difficulties. DSS asked the plaintiff to provide his financial details. He did so but had no idea how to enter them in the computer as requested.
55 DSS did not put pressure on the plaintiff to get a job. After he had advised DSS of his financial details, the plaintiff spoke to a friend who helped him with job applications. The only thing the plaintiff had in mind was that he might be able to do forklift work, as he could not do too much manual handling, because of his neck pain.
56 The plaintiff has applied for several jobs this year. On 29 April 2015, he applied for a job as a full-time forklift driver with Kitco Transport, which his friend found for him on the internet.
57 In about May this year, he applied for work as forklift driver reach stacker with TR Recruitment.[11] On 5 June this year, he applied for a job as a forklift operator.
[11]T10
58 The plaintiff applied for the forklift jobs because he is running very short on money, and he thought, if anything, he might possibly be able to do this type of work. He applied for these jobs but did not think he would last long doing them. He would have tried to see how he long he would last.[12]
[12]T13
59 The plaintiff agreed he would have problems taking items off the forklift, reversing and turning his head. There would then be the issue of pain down his neck into his arm.
60 If the plaintiff had been offered either of the two forklift jobs, he did not think he would have lasted more than an hour and a bit, because of his neck and shoulder pain. It would have been unfair to the employer to tell him, “Look, mate, I can’t do the job”.
61 The plaintiff applied for a job as a yard supervisor because he had done a little bit of supervising in the past when he worked at V-Line. He had all the tickets.[13]
[13]T12
62 The plaintiff agreed he had the skills listed in the AMS assessment.[14] He had very basic organisational skills but had literacy problems.[15] He agreed he had communication skills as a bouncer.
[14]T30
[15]T31
63 The plaintiff is not good at paperwork. He agreed he was well respected by the employer but he needed help when he was filling out incident reports and at times would have to speak to the manager.
64 The plaintiff’s wife had helped him complete some of his claim forms. At other times, he had to get the information from other people so he did not know whether he would have in fact completed later claim forms in which his printing appeared.
65 The plaintiff agreed he could fill out incident reports like that relating to his 2006 incident, which detailed problems with patrons at work such as intoxication, refused entry and similar matters. These were not complex matters and he was able to note them.[16]
[16]T42
66 The plaintiff could not do a range of tasks identified by AMS. He had seen the type of work that was involved as a static security guard. Despite the duties described in the AMS report, the plaintiff stressed that static guards simply do not sit in the one place the whole time. They do come across physical situations and have to cope with them not simply stay seated. The work would require a lot of monitoring duties.[17] He had spoken to and observed static guards and knew that just did not stay in the one place all the time.[18]
[17]T33
[18]T50
67 The plaintiff would be required to go up and down the stairs and move around a factory when working as a security guard.[19] There would be problems with some doors.[20] The plaintiff could not run or jog if he had to chase an offender. He would be able to push an alarm but he did not know for how long.[21]
[19]T46
[20]T47
[21]T48
68 The plaintiff could not cope with the physical requirements of a static job because even while talking in the witness box, he had an ache going down his neck and shoulder and all he had been doing was “chit chatting.”[22] The plaintiff had not taken any medication the day of the hearing. Whilst giving evidence, he had pain but not bad enough to take a tablet.
[22]T45
69 If the plaintiff had to sit for too long, his neck “kicked off and ached and he had to pop a tablet”.[23] He still suffered pain sitting in a normal position. He had not moved his head too much at Court, and he still had neck pain.[24]
[23]T50
[24]T53
70 The plaintiff disagreed that being a forklift driver was harder than doing static security. Working as a static guard, you had to turn your head left and right, up and down, if you are looking at loads and climbing into trucks or check what is being taken in and out.[25]
[25]T63
The Plaintiff’s treaters
71 When the plaintiff’s general practitioner, Dr Jacobs, most recently reported in July this year, he confirmed that, following examination in June 2013, he re-issued a certificate, placing the plaintiff off all duties until the following month. He noted the plaintiff was progressing slowly with respect to his pain improving.
72 Dr Jacobs thought the prognosis was guarded, in that it could take months, even years, as Mr Han stated, for the plaintiff’s injuries to recover, and he could not be very specific as to the prognosis.
73 Dr Jacobs thought the plaintiff’s condition had not stabilised and would require further time for the disc prolapse to heal and for his core stability to be improved. He noted the plaintiff may always have some degree of neck pain.
74 Dr Jacobs had earlier repeated these comments in his report of 4 March 2015 and on 9 April 2015, Dr Jacobs advised the information in his 8 July 2013 report still remained as is.
75 The plaintiff has attended 101 Physio in Melton West.
76 On examination in June 2013, it was noted the plaintiff was experiencing pain in his neck, right shoulder and right elbow, and also experienced a burning sensation about his right scapula. He had reduced strength and function of his right upper limb.
77 Monica Farag, physiotherapist, thought the plaintiff was not able to complete any heavy lifting duties and was unable to complete any duties with repeated overhead movements. She considered he was able to work if offered light duties which included no heavy lifting and repeated overhead movements.
78 Ms Farag thought the plaintiff should be able to return to work and his condition would not continue indefinitely. However, currently, he was unable to return to work. She thought treatment was essential for a return to work and progress to full duties.
79 Mr Han, consultant neurosurgeon, first saw the plaintiff in September 2012 on referral from Dr Jacobs.
80 Mr Han noted that following the incident, the plaintiff kept working until March 2012 when he woke up one morning with severe neck pain and right arm pain that was so bad he had to stop work on 25 March 2012.
81 Mr Han noted the plaintiff’s symptoms had then improved. He had less pain in his neck, although he still had pain over the right shoulder and sometimes pain around the elbow. Movement of the cervical spine had improved significantly, with a full range of movement on examination.
82 Mr Han agreed cervical spine pain was likely to be related to disc degeneration and prolapse and he hoped, with conservative treatment, the plaintiff’s symptoms would continue to improve. He suggested physiotherapy and asked the plaintiff not to return to work until his pain completely settled down. In Mr Han’s view, that may take many more months or years.
83 Mr Han reviewed the plaintiff on 15 January 2014. The plaintiff then had minimal neck pain but his range of movement had improved. Nonetheless, he had ongoing pain and rated it as 4 out 10 and he was having regular physiotherapy. He did not have any significant arm pain anymore but continued to have axial neck pain.
84 The plaintiff returned to Mr Han on 7 April 2015. The plaintiff then continued to have ongoing neck pain which he claimed to have every day and he was taking Voltaren, Panadol and Panadeine Extra. The pain was located over the posterior part of the neck associated with intermittent right ear ache. Occasionally, there was right shoulder and upper arm numbness.
85 While there appeared to be improvement of his neck pain, Mr Han noted any activity and sudden movement of the plaintiff’s neck would bring on sharp lancinating pain in his neck. The plaintiff had not been able to return to work and had been unable to continue part-time work.
86 Mr Han thought the plaintiff would require ongoing physiotherapy for improvement of his range in motion and improving muscle strength and he would also continue to take anti-inflammatory medication and analgesia.
87 Mr Han considered the plaintiff continued to suffer neck pain of a severe nature, secondary to disc herniations at C5-6 and C6-7. He thought the plaintiff had no residual employment capacity, taking into account his age, education, skills and training, as a result of his ongoing injury. That injury had prevented the plaintiff and affected his ability to undertake regular full-time or part-time employment.
88 Mr Han believed the plaintiff would be unable to perform any of the duties set out in the 2014 Ayres report either full time or part time due to the ongoing pain.
89 The plaintiff had physiotherapy at Caroline Springs Physio from Andrew Abelmalek from early 2013.
90 Mr Abdelmalek reported in April 2014 that the plaintiff had made significant progression in terms of pain and range of movements, strength and functionality over twelve months but he was still experiencing pain with shoulder exercises, which he attempted daily. He was not able to perform difficult tasks such as lifting a heavy object above his head, pushing, pulling and maintaining the same position for more than thirty minutes.
91 Mr Abdelmalek thought the injury had hindered the plaintiff’s capability to return to employment, keeping in mind his education, his qualification and skills. He thought the plaintiff required considering pain management increased functionality.
92 Mr Abdelmalek reported in November 2014 that he had no doubt the plaintiff had suffered significant impairment in the neck and right shoulder with high levels of pain that were likely to be permanent. He was not able to resume working in his previous job and unlikely to be suitable for employment as he had a lack of administrative or clerical skills in appearance and experience.
93 Mr Abdelmalek noted that view was in line with Mr Han’s report in which he stated the plaintiff was not to return to work until his pain completely settled, which could take years.
Medico-legal examiners
94 Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff in July 2014.
95 The plaintiff’s symptoms were pain in the right shoulder region interfering with sleep and restricting full use of the right arm. On examination, movement of the cervical spine was restricted with half-normal rotation to the left.
96 Radiology and other medical opinions confirmed the diagnosis of cervical disc injury and right-outflow brachialgia.
97 Mr Kudelka thought the plaintiff had suffered permanent impairment due to his neck and right arm pain and weakness with permanent negative effects on his economic, social, recreational and domestic future. He noted the plaintiff had not yet found suitable employment and may have difficulties because of the severity of symptoms, his age and his previous lack of significant clerical, administrative or office experience.
98 Mr Kudelka thought the plaintiff’s residual employment capacity was limited, taking into account his age, education skills and training. He noted, however, the plaintiff had a positive personality and should he wish to attempt alternative employment which may involve retraining, there was no orthopaedic reason why such an attempt should be made.
99 Mr David Brownbill, consultant neurosurgeon, first examined the plaintiff in December 2014.
100 The plaintiff told him that he did not return to work because of neck pain. He was able to help with household chores, mowed the lawn and used a Whipper-Snipper, but was taking a lot of painkillers.
101 The plaintiff complained of neck pain situated low posteriorly, extending to either side. That had improved, it comes and goes but is worse after physical activity.
102 Mr Brownbill noted the plaintiff was alert and cooperative without embellishment, appearing straightforward in his presentation. Active cervical movements were full in flexion and extension, three quarters full in lateral flexion and lateral rotation full to the right and two-thirds full to the left.
103 Noting Mr Han’s examination findings of January 2014, Mr Brownbill found some restriction of cervical movement and there were no objective neurological abnormalities on examination.
104 Mr Brownbill thought it prudent for the plaintiff to avoid activities involving heavy lifting, forced cervical spine mobility or holding his neck in a fixed position.
105 Mr Brownbill considered, from a physical neurosurgical point of view, it may be considered the plaintiff would be capable of a graded return to employment avoiding those activity restrictions however, with his described ongoing neck pain with activity exacerbation, it was likely the plaintiff would be unable to perform any employment in an ongoing or reliable fashion. If an attempt was made to return to work avoiding the actions mentioned, it should be done in a graded fashion under close medical supervision.
106 The number of the hours the plaintiff could work on any attempted return to work would be dictated by his responses.
107 Mr Brownbill re-examined the plaintiff in June 2015. The plaintiff then advised he was exactly the same as when last seen. He struggled to do things at home and had to use painkillers regularly, and he did not think he could do any work for more than a short time.
108 The plaintiff told Mr Brownbill he was not receiving any physical treatment. He took Voltaren, Panadeine Extra and blood pressure medication.
109 The plaintiff reported neck pain present all the time, with fluctuations being worse with neck turning and restricting all activities. There was right arm pain extending from the neck to the top of the shoulder, then down the outside of the upper arm. It comes and goes, being present about four to five times a week, and it is a dull aching pain.
110 On examination, active cervical movements were half-full in lateral flexion and three quarters on lateral rotation to the left. Again, there was no specific neurological abnormality.
111 Mr Brownbill confirmed his previous opinion as to the restriction on the plaintiff’s activities and his capacity for employment. He concluded, on probability, the plaintiff would not be able to undertake take regular full or part-time employment because of the aggravated cervical spine degenerative change.
112 Mr Kenneth Myers, vascular surgeon, examined the plaintiff in April 2015.
113 On examination, there was approximately 50 per cent restriction of the expected range of cervical movement apparently associated with pain. There was apparent weakness of grip of the right hand although a full neurological examination was not performed.
114 Mr Myers thought that following the incident, the plaintiff suffered injury to his cervical spine with subsequent exacerbation of disability and clinical symptoms indicative of right-arm radiculopathy. He thought the injury was multi-level degenerative intervertebral disc disease in the cervical spine, with probable compression of right nerve roots.
115 Mr Myers considered there was no possibility of the plaintiff returning to regular full time or part-time employment. The plaintiff’s age and vocational background was such he would find it difficult to obtain any form of sedentary work. Mr Myers thought it would be very difficult for the plaintiff to obtain any regular full or part-time employment because of his physical disability, quite independent of any psychological overlay or pain disorder.
116 Mr Myers considered the plaintiff would be unable to cope with any of the jobs suggested by Ayres, because of the probability they would cause increased pain, and because of interference with these activities because of medications. He thought the plaintiff would not return to pre-injury social, recreational or domestic activities and any impairment relating thereto would be considerable and long-term.
117 Having been provided with reports from Mr Brownbill; Dr Jacobs; Mr Han of June 2015 and Mr Jones and Dr Lange of January 2015, Mr Myers noted there was nothing in the further material provided that would alter his previous opinion.
118 Mr Myers confirmed the plaintiff is unable to resume regular full-time or part-time employment and his educational and vocational background was such he would not be able to obtain alternative employment in the future. He considered the plaintiff had no residual employment capacity.
The Defendant’s medical evidence
119 Mr Miller, orthopaedic surgeon, reported following the 2006 shoulder injury. On the last review in June 2007, Mr Miller noted the plaintiff copes quite well with the right shoulder problems, and fortunately he is able to continue working.
120 On examination, Mr Miller noted there appeared to be a little improvement in the winging, although the scapula still did wing quite considerably.
121 Mr Miller thought the plaintiff seemed quite well adjusted to his injury and had quite a sensible attitude to it. He undertook self exercise at home. He did not believe the plaintiff required other intervention.
Medico-legal evidence
122 Dr Lange, occupational physician, first examined the plaintiff in May 2014. The plaintiff was then having physiotherapy three times a week.
123 The plaintiff advised he had a burning sensation in the right shoulder blade and weakness in the right upper limb compared to the left. Shoulder pain was exacerbated by activity. Over the last twelve months, he had felt his condition had improved, especially the range of neck movement. The plaintiff’s pain level had also improved and he was capable of mowing his own lawns and he walked his dog.
124 On examination, rotation of the cervical spine to the left was limited to half normal, and abduction to the left 30 per cent normal. There was weak grip strength on the right hand and winging of the right scapula.
125 Noting investigations revealed disc lesions at C5-6 and C7, Dr Lange considered the plaintiff had a cervical radiculopathy causing ongoing pain in the neck and right shoulder area, along with weakness of grip strength of the right hand and winging of the right scapula.
126 Dr Lange noted the plaintiff’s condition was slowly improving but it had not resolved, and he continued to have pain in the right shoulder and weakness of the right hand. He did not think the plaintiff’s condition was an aggravation of occurrence of a pre-existing injury.
127 Dr Lange considered the plaintiff had a capacity to undertake light work with no lifting over 5 kilograms, no heavy pushing or pulling and to commence undertaking work for four hours a day, increasing up to full time over three months. He thought he was not fit to return to work as a security guard considering his medical condition and the nature of his work duty.
128 Dr Lange considered the jobs suggested in the NES Vocational Assessment Report of 2014. He thought a number of those were not appropriate and not within the plaintiff’s capacity. Those included bar attendant and gaming attendant, as well as crane operator and machine operator.
129 Dr Lange thought the plaintiff could not work as a bar attendant, as frequently barrels of beer needed to be filled and that was beyond his capacity. Also, working as a gaming attendant required lifting heavy bags of coins into machines and emptying heavy bags of coins, both of which would be beyond the plaintiff.
130 Dr Lange noted that working as a crane operator required manual dexterity and frequent head turning. He also noted the plaintiff continued to have restrictions in neck movements and some limited function, especially grip strength in the right hand, and as such, he could not undertake that type of work. Dr Lange thought both product assembly and hand packing requiring repetitive duties may be a little difficult for the plaintiff. Light processing work would require that the work was light and allowed the plaintiff to have rest breaks.
131 Dr Lange was subsequently provided with Mr Jones’ 2012 report, Mr Han’s report of January 2014 and reports from Mr Miller in relation to the earlier shoulder injury, and investigations of the right shoulder.
132 Dr Lange considered the extra information in the file material provided a different perspective in relation to the plaintiff, noting Mr Miller had indicated the plaintiff sustained a right shoulder injury in June-August 2006 and winging of the right scapula was then present. Further, the November 2006 MRI indicated the plaintiff had extensive degenerative changes of the acromioclavicular joint causing impingement, and there was a large almost full thickness tear of the supraspinatus.
133 Dr Lange noted from that information, the plaintiff had a background of degenerative problems in the right shoulder. He thought that would indicate right shoulder problems commenced before the incident and that the plaintiff had a significant problem in that shoulder which was longstanding.
134 Dr Lange thought, however, the plaintiff suffered an exacerbation of his cervical degenerative condition as a result of the incident and it continued to be his view the plaintiff had a diagnosis of an exacerbation of cervical degenerative disease. He also thought there was a radiculopathy down into the right arm, as the altered reflexes on the right side were secondary to the plaintiff’s degenerative problems in his neck.
135 Having altered his diagnosis to some extent by not including the winging of the scapula and the discomfort in the right shoulder, it continued to be Dr Lange’s opinion the plaintiff does not have a capacity to return to the previous security work he did which could involve confronting unruly patrons.
136 Dr Lange continued to be of the opinion the plaintiff should limit his return to work to lighter duties involving static security work at a gatehouse, along with work as a retail assistant. He would also include light processing work and even bar work, considering the nature of the plaintiff’s condition and his revised diagnosis.
137 Dr Lange was then provided with Mr Jones’ and Mr Tan’s 2015 reports, and the more recent vocational assessment.
138 Dr Lange noted there appeared to be no dispute as to diagnosis, with the plaintiff having significant degenerative changes in the cervical spine with C5‑6, and C6-7 cervical disc lesions.
139 Dr Lange noted the major problem was the plaintiff had neck pain, causing him lack of sleep. That pain radiated to the right side of the head. He noted those symptoms appeared to be ongoing, of a significant nature, along with weakness in the right upper limb.
140 Despite the fact the plaintiff’s right arm symptoms appeared to have improved, according to Mr Tan, the plaintiff now has more significant neck pain than when evaluated by Dr Lange in 2014.
141 Dr Lange noted, according to the file material, the plaintiff has increasing neck pain as outlined by Mr Han. He has significant radiological features of degenerative changes at C5-6 and C6-7 with disc lesions and osteophytic lipping. Dr Lange noted physical examination revealed absent right brachioradialis and biceps tendon reflexes.
142 Dr Lange’s opinion following the information provided by Mr Tan was that the plaintiff does not have the current work capacity, primarily due to his current neck pain secondary to C5-6 and C6-7 disc osteophyte lesions, which cause severe neck pain.
143 Dr Lange noted that there had been a change, with now severe episodes of neck pain causing ongoing significant symptoms, whereas previously, neck pain appeared to be improved. Dr Lange’s opinion was now that the plaintiff has not improved over the course of time and has symptoms that would make it very difficult for him to undertake sustained activities and maintain a job.
144 Accordingly, Dr Lange altered his opinion and agreed with Mr Han that the plaintiff has no capacity to obtain suitable employment for which he is suited by experience or training.
145 Mr Clive Jones, orthopaedic surgeon, first saw the plaintiff in May 2012.
146 The plaintiff’s problem then was pain and clicking in the neck and pain radiating up to the right shoulder and right upper arm. He was not conscious of any weakness of numbness in his right hand. He felt there may be some slight improvement.
147 On examination, there was 50 per cent of the normally expected range of cervical spine movement.
148 Mr Jones thought the clinical indications were of cervical disc degeneration, with some possible nerve root involvement in the cervical spine producing reflex alteration in the right arm. He noted the plaintiff had a shoulder blade problem in 2006 resulting in instability, but that would appear to be an old and separate issue.
149 Mr Jones thought there appeared to be a current capacity for lighter work and that something clerical could be undertaken if suitable duties were available.
150 Without further knowledge, Mr Jones thought it difficult to say if, and when, the plaintiff will return to his pre-injury duties. He noted the plaintiff said he had no wish to stay on WorkCover and was eager to get back to work as soon as possible.
151 Mr Jones re-examined the plaintiff on 9 December 2014.
152 The plaintiff advised his symptoms continued. The right side of his neck was painful and he was troubled by continual neck clicking. Things had changed somewhat and he was now reporting some pain in his right hand and some numbness around the right thumb. His neck pain tended to radiate up to the right ear and to the back of the right head. There was no frontal headache.
153 The plaintiff could be wakeful at night. If this was the situation, he usually took Panadol Extra and after half an hour or so was able to go back to sleep. As far as activities were concerned, he was able to mow the lawn and tend the garden. He was able to drive but preferred shorter distances.
154 Mr Jones noted there was remarkably little change on examination since two and a half years earlier. The plaintiff still had neck muscle pain and his reflexes remained depressed. There was weakness and reduced sensation in the right thumb and his unstable shoulder blade also persisted.
155 Mr Jones noted the diagnosis appeared to be radicular pain and reflex loss in the right arm.
156 Mr Jones did not believe the plaintiff would be safe to work in security situations, especially where crowd control was concerned.
157 Having examined the 2014 vocational assessment, Mr Jones thought the plaintiff would be perfectly capable of working in a gatehouse reception and in a control room role. He thought the options of security officer (static), light process work, machine operator and product assembler would be appropriate for the plaintiff. He noted, naturally, the plaintiff should avoid potential confrontations which are inclined to crop up in security work.
158 Mr Jones was provided with Dr Lange’s most recent reports and he re-examined the plaintiff on 19 May 2015.
159 Mr Jones noted matters remained unchanged. On examination, there had been little, if any, significant change since last seen. The right shoulder was somewhat unstable on the basis of a very longstanding condition. The amplitude of the right limb reflexes remained reduced but no muscle wasting to measurement had occurred and thumb strength appeared to be normal.
160 Mr Jones noted symptoms remained much as they had been on the previous occasion, with neck pain and stiffness with some radicular-type arm pain and an unrelated drooping right shoulder.
161 The plaintiff managed household and garden maintenance tasks with some difficulty.
162 Mr Jones thought the plaintiff had a light work capacity but had no future in crowd control type work where he would be likely involved in physical conflict. He believed the plaintiff would be suitable for gatehouse reception or control room roles, or light process work identified by AMS. Those duties could be undertaken full or part time, as could clerical work if available.
163 Medical constraints would be as set out in his previous report and Mr Jones thought that there was unlikely to be a significant change. He considered age-related degenerative change was the other factor contributing to the plaintiff’s current condition.
164 Mr Nye, neurosurgeon, examined the plaintiff in May 2013. The plaintiff then indicated his capacity for neck movement had improved but pain extended from that region to the right shoulder. He described loss of right arm strength and a right-sided earache.
165 On examination, there was some restriction of cervical movement and there was some mild neurological issues with the right upper limb.
166 Following this examination and investigation of the radiology, Mr Nye concluded an injury was sustained with aggravation of cervical degenerative disease, and particularly at C5-6, with evidence of motor radiculopathy.
167 Mr Nye thought the plaintiff could not resume pre-injury duties and hours. He thought the plaintiff did not have a current capacity for employment. With further improvement with paramedical treatment, he thought there will be a potential for a resumption of employment but not the crowd control role.
168 In the future, Mr Nye thought any employment would require restrictions, including avoidance of repeated movements of the head and neck, and use of the arms in an overhead or outstretched manner, and a lifting limit of 5 kilograms would be appropriate and, as such, should not be conducted to above shoulder height.
169 Mr Nye thought alternative employment could not then be commenced; however, the prognosis for such was considered favourable for the future. He thought the plaintiff’s capacity for employment should be reviewed subsequent to any change in his condition.
170 Mr Nye subsequently reported having been provided with the 2012 vocational assessment which he noted was somewhat outdated.
171 Mr Nye considered, in general, the positions of gaming worker, sales assistant, bar attendant and security officer would have potential for the plaintiff, provided the restrictions apply and, in regard to security officer, crowd control would not be appropriate.
The Defendant’s vocational evidence
172 Ayres Management Services Pty Ltd (“Ayres”) provided a vocational and assessment report on 1 February 2012. Identified suitable employment options in order of priority were: gaming worker, sales assistant, bar attendant and security officer (following future medical clearance). At the time of that assessment, the plaintiff’s general practitioner had certified him unfit for work.
173 It was noted the plaintiff holds a Level Three Security Guard Crowd Control Ticket, a Level Two First Aid, Overhead Crane and RSA certificate. He has a gaming licence, and is also licenced as a forklift driver, crane chaser, dogman, overhead crane, back hoe, front-end loader and excavator/operator.
174 At that stage, the plaintiff advised Ayres he would be interested in returning to work in security or armed control.
175 Healthe Work provided a job-match assessment and labour market analysis in May 2015. The defendant’s solicitor requested this assessment in respect to the provided job options recommended in a later vocational assessment by Ayres in February 2014.
176 In that assessment, Ayres identified the suitable employment options in order of priority were: bar attendant, sales assistant, gaming attendant, security officer (static only), light process worker (selected environments), common machine operator (selected environments), product assembler (selected environments), hand packer (selected environments), crane operator and any suitable job options identified in the NES program upon confirmation of a current work capacity.
177 Ayres noted the plaintiff had skills including the ability to meet quality and quantity requirements, good organisation skills, management skills, adequate English literacy, skills and experience in hospitality and security, ability to manage difficult situations, good interpersonal skills, customer service skills and experience, bar skills and experience, gaming licence and experience assisting with coin clearances and knowledge, and licensing in the operation of cranes and earthmoving equipment.
178 Ayres suggested the role of security officer and guard (gatehouse reception, static, mobile and control room only).
179 The job title involved the following duties:
· patrols areas and checks doors, windows and gates for unauthorised entry
· watches for irregularity, such as fire hazards, malfunctions or machinery or equipment, light left on, leaking water pipes and unlocked security doors
· issue security passes to authorised visitors and gives directions
· records time of entry and departure of authorised persons and times of inspections
· monitors alarms and contacts supervisors, fire brigades or police by telephone or radio if security is breached.
180 The average gross weekly wage in that role for a worker over forty-five was $14,011.
181 The Healthe Work report set out that security officer gatehouse static is a role commonly located in a variety of environments – factories, industrial parks, apartment blocks, office buildings and even major shopping centres. It was noted staff were typically responsible for:
· observing guests entering and leaving buildings
· access control
· issue and check pass
· arrange and liaise with couriers for parcel collection
· extensive public contact by face-to-face or telephone
· the completion of incident shift reports
· observation also by a CCTV
· alarm monitoring
· may check doors and windows.
182 The physical component of the role was described as follows:
“Upper limbs: no repetitive over-shoulder level activity. However, individuals were expected to use their upper limbs to issue passes, close doors, windows, make general hand gestures and handle a two-way radio. These tasks can be done with either hands or arm.
Sitting/standing: individuals do have the freedom to alternate their posture at random.
Neck: minimal neck flexion. It is recommended CCTV and other monitoring devices be placed at eye level to reduce neck discomfort.”
183 Taking into consideration the plaintiff’s reported physical tolerances and levels and challenges, this job option was classified as sedentary and it was considered he could manage a proposed job description.
184 The author emphasised the plaintiff’s focus on securing a role that will not place him in danger where he is expected to chase and apprehend an offender. The plaintiff must focus on securing more control room or concierge employment where the environment is less threatening and more corporate.
185 The hourly rate for that job ranged from $17.49 to $26.42.
\
Overview
186 Clearly, there is no issue as to compensable injury or the seriousness of the consequences of the plaintiff’s spinal impairment from a pain and suffering perspective. The concession in relation thereto was made after a consideration of any contribution of plaintiff’s pre-existing right shoulder condition to his present condition.
187 In any event, although the plaintiff conceded that he was still taking Voltaren in relation to that injury at the time of the incident, he was able to work full time in an unrestricted manner as a security guard.
188 In these circumstances, I do not accept, as submitted on the defendant’s behalf, that the plaintiff’s right shoulder, rather than his neck, causes any present work incapacity.[26]
[26]T97
189 Whilst there was a limited attack made on the plaintiff’s credit, relating to his medication intake pre-incident, the circumstances of filling out various claim forms, his inability to recall the name of his friend who worked as a static guard and his description of his work restrictions,[27] I found the plaintiff was a truthful witness.
[27]T82-85
190 There was no surveillance film or any other evidence contradicting his claimed level of restriction and symptoms. Further, no medical examiner suggested the plaintiff was exaggerating or embellishing his symptoms.
191 I accept the plaintiff is a stoic, hardworking man who has a significant work history. In the ten years before the incident, he was working 45 hours a week with the defendant as a crowd controller. His work history prior to that time was impeccable, with two ten-year periods of employment with other employers in different roles.[28]
[28]T106
192 I note also the plaintiff’s response to his 2006 shoulder injury, continuing work thereafter for a number of years and also returning to work after the relevant incident.
193 In my view, given this history and also the financial demands on his family, now his wife is no longer working because of recent back surgery, the plaintiff would be working if not for his neck injury.[29]
[29]T107
194 Whilst the plaintiff’s complaints in relation to the intensity and frequency of his cervical pain have fluctuated over time, I accept this is part and parcel of his degenerative cervical condition and in no way reflects any inconsistency or lack of genuineness on his part.[30]
[30]T106
195 I also accept that the plaintiff’s complaints are consistent with the nature of the his pathology, as confirmed by a number of medical practitioners in this case.[31]
[31]T109
196 As the defendant conceded, the only job it was arguable the plaintiff had a physical capacity to perform was as a static gatehouse security officer and he did not have a capacity for the other jobs suggested in the NES vocational reports in 2012 and 2014.[32]
[32]T95
197 In essence, the defendant’s submission was that, having regard to the nature of the duties of a static security officer, the plaintiff had the physical capacity to undertake that role.[33]
[33]T106
198 Taking into account all the evidence, I am satisfied that the plaintiff does not have a capacity to work as a static security guard at a gatehouse or other location.
199 Whilst the range of duties described in the vocational reports were essentially sedentary in nature, I do not accept that the plaintiff would do as little as those job descriptions suggested. The descriptions were generic and did not relate to a specific job at a specific location.
200 Given his background and work experience, I accept the plaintiff’s evidence as to what would be involved in a real day-to-day sense in this type of role and that it would involve tasks other than simply sitting.
201 In any event, the plaintiff has problems with prolonged sitting and standing, describing pain on simple activities such as watching television and also having pain while standing in the witness box “chitchatting” during cross-examination.[34]
[34]T110
202 I accept the plaintiff has ongoing fluctuating pain of varying degrees in his neck, radiating into his right arm. At times, this pain is severe. It is subject to flare ups. The plaintiff is restricted in his ability to move his right arm and also to lift.
203 The plaintiff’s treating general practitioner, Dr Jacobs, who continues to see him monthly, has considered the plaintiff to be unfit for all duties since 2013. Following examination in January 2015, Mr Han shared this view, as did Mr Myers when he saw the plaintiff in April this year.
204 Mr Brownbill came to a similar conclusion in June 2015, noting that because of his condition, it was unlikely the plaintiff would be able to perform any employment in an ongoing or reliable fashion.
205 Significantly, Dr Lange, the only occupational physician in this case, finally concluded, after receiving Mr Han’s 2015 report, that the specific role of static guard was not a job suitable for the plaintiff, and that he had no current work capacity.
206 Mr Jones is the only recent examiner who considered the plaintiff would be suitable for gatehouse or static security work. Whilst not doubting the genuineness of the plaintiff’s complaints, Mr Jones seems to have based his opinion on the plaintiff having the ability to manage various tasks to a greater degree than in fact is the case.[35]
[35]T114
207 Predating a change in the plaintiff’s condition noted by Mr Han in January 2015, Mr Kudelka, in July 2014, thought the plaintiff may have difficulty finding suitable employment due to the severity of his symptoms and his previous limited work experience.
208 In May 2013, Mr Nye thought there was a potential for a return to work, with restrictions in sales or bar work, but that work as security officer and crowd control would not be appropriate.
209 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
210 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
211 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
212 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
213 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
214 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect. See Barwon Spinners Pty Ltd & Ors v Podolak.[36]
[36](2005) 14 VR 622 at paragraph [70]
215 At the time of suffering injury, the plaintiff was working 45 hours a week and received $1,025 gross per week, or $63,700 per annum. Sixty per cent of that sum is $38,220, or $735 per week.[37]
[37]This figure was not in dispute – T82
216 Taking into account all the evidence, I am satisfied that the plaintiff does not have a capacity to earn in excess of $735 a week as a static security guard. Given his neck pain and restrictions, the plaintiff would have significant difficulty undertaking such employment in an ongoing or reliable fashion.
217 I am satisfied that this loss of earning capacity is permanent. The plaintiff’s condition has stabilised and only conservative treatment will be required, as Mr Tan described.
218 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
219 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 the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
220 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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