Valerio, Silvestro v Moreland City Council
[2009] VCC 1472
•27 August 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-07-04444
| SILVESTRO VALERIO | Plaintiff |
| v | |
| MORELAND CITY COUNCIL | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 and 19 August 2009 |
| DATE OF JUDGMENT: | 27 August 2009 |
| CASE MAY BE CITED AS: | Valerio, Silvestro v Moreland City Council |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1472 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – concession that the consequences of a lower back injury were serious for pain and suffering – no claim for loss of earning capacity – whether the consequences said to be serious occurred on or after 20 October 1999 – whether the consequences of an injury to the neck were serious for pain and suffering and loss of earning capacity – whether the plaintiff had discharged the onus he bore under subsection (19)(b) – failure of the plaintiff to make a comparison under subsection (38)(e)(i) with the gross income of jobs he had applied for – leave granted for the injury to the plaintiff’s lower back – leave granted for the injury to the plaintiff’s neck for pain and suffering only: Section 134AB (38)(c), (e), (f) and (g).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Philbrick SC with | Maurice Blackburn |
| Mr G Wicks | ||
| For the Defendant | Mr M Titshall QC with | Minter Ellison |
| Mr S Grant | ||
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 12 November 2007 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering for an injury to the lower back, and for pain and suffering and loss of earning capacity in relation to an injury to the neck.
3 Mr J Philbrick SC appeared with Mr G Wicks of Counsel for the plaintiff and Mr M Titshall QC appeared with Mr S Grant of Counsel for the defendant.
4 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; • The plaintiff tendered the following evidence:
ƒ
the Plaintiff’s Court Book (“PCB”) pages 9-57 and 68-96 and from the Defendants Court Book (“DCB”) pages 47-53 and 115-116: Exhibit A; and
ƒ a determination of Cambridge dated 2 April 2007: Exhibit B;
•
The defendant tendered the following evidence – the Defendant’s Court Book (“DCB”) pages 1-6; 34-46; 54-57 and 68-100: Exhibit 1.
The Statutory Scheme
5 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act, which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
6 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and, in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e) impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158 per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833 per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527 per Judge Ross.
[4] (1994) 1 VR 436
7 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Injuries
8 The plaintiff was born on 25 August 1963. He is now forty-five years of age. He is a married man with two children.
9 The plaintiff commenced employment with the defendant in 1989 as a gardener/operator.
10 The plaintiff alleged that in early August 2000, he suffered an injury to his lower back as a result of undertaking a lot of heavy shovelling and wheelbarrowing a lot of sand and mulch.[5]
[5] PCB 10
11 The plaintiff also alleged that in about December 2003, he suffered an injury to his neck as a result of wearing a heavy knapsack over his shoulders in order to undertake spraying, and as a result of having to place a lot of litter and grass cuttings into the back of a truck.[6]
[6] PCB 11
The Issues
12 Mr Philbrick opened the plaintiff’s case on the basis that the plaintiff claimed that he had suffered a compensable injury to his lower back, but limited the claim for serious injury for pain and suffering only.
13 Mr Philbrick also opened the plaintiff’s case on the basis that he had suffered a compensable injury to his lower back for which he was claiming serious injury for both pain and suffering and loss of earning capacity.
14 Mr Titshall very helpfully responded to Mr Philbrick’s opening by informing me that the defendant conceded that the consequences of the impairment of the function of the plaintiff’s lower back met the statutory test for pain and suffering. However, he submitted that the injury had been incurred by the plaintiff prior to 20 October 1999, and that the plaintiff could not prove that whatever contribution to that injury occurred post 20 October 1999, the consequences could not meet the statutory test.
15 In relation to the plaintiff’s claim that the neck injury met the statutory test for both pain and suffering and loss of earning capacity, Mr Titshall informed me that the plaintiff could not prove that the consequences of the impairment of the function of the plaintiff’s neck met the statutory tests.
16 One other matter of importance which Mr Titshall also helpfully conceded was that the plaintiff’s credit was not under attack. He conceded that the plaintiff was a forthright and truthful witness; however, he submitted that the plaintiff’s recollection of events made him an unreliable historian.
The Lower Back Injury – Causation
17 The plaintiff had suffered a problem with his lower back prior to 20 October 1999, which figured prominently in the evidence given by the plaintiff and the submissions made by Mr Philbrick and Mr Titshall.
18 Mr Titshall submitted that the plaintiff had incurred a lower back injury prior to 20 October 1999 which established symptoms which were incapacitating and which persisted, and that the course of events in relation to his lower back injury post 20 October 1999 were no more than the persistence of those very same symptoms.
19 In 1998, the plaintiff suffered back pain as a result of shovelling and wheelbarrowing sand while working for the defendant.[7]
[7] PCB 10
20 The clinical notes of the Northern Industrial Medical Clinic reveal that the plaintiff attended there on 8 August 1998. The entry is difficult to read, but it appears to show that one week beforehand the plaintiff suffered a lower back injury when mulching and pushing a wheelbarrow. There was no radiation into or numbness in his legs.
21 An examination was conducted by the attending medical practitioner; however, I am unable to decipher the medical practitioner’s handwritten notes. It would appear that a diagnosis of a musculo-ligamentous injury was made. The plaintiff was prescribed medication.[8]
[8] PCB 77
22 The plaintiff attended on 11 August 1998 for lower back pain. The attending medical practitioner’s notes reveal that he was slowly responding to treatment. It would appear that he was prescribed medication and referred to physiotherapy.
23 The plaintiff attended on 20 and 27 August 1998 for treatment for unrelated physical problems.
24 The plaintiff attended on 10 September 1998. The attending medical practitioner’s notes reveal that he was treated for right groin pain and maybe lower back pain. It would appear that he was prescribed medication, but it is unclear whether he was having physiotherapy at that time or whether it had ceased.
25 In June 1999, the plaintiff jumped down off a truck, resulting in him twisting his lower back and hurting a knee.[9]
[9] PCB 10
26 The clinical notes of the Primary Care Clinic reveal that the plaintiff attended on 9 June 1999 and gave the attending medical practitioner a history that on the day before (8 June 1999), he jumped down from a truck and twisted his lower back. He was referred to have an x-ray which showed no abnormality. The rest of the clinical notes are difficult to decipher, but it would appear that he was to be reviewed on 11 June 1999 and was given a WorkCover certificate covering him for the period between 9 and 11 June 1999.
27 Mr Philbrick directed my attention to a marginal note adjacent to the above entry, which appears to reveal that the plaintiff told the attending medical practitioner that he had not experienced any back pain except an occasional niggle since his last injury.[10] I infer that the last injury is a reference to the lower back problems for which the plaintiff obtained treatment in August 1998.
[10] PCB 80
28 Subsequent to what occurred on 8 June 1999, the plaintiff attended on 11, 15 and 23 June 1999 for treatment for lower back pain. On 11 June 1999, it would appear that he had pain in his right knee, presumably related to his lower back pain. On 15 June 1999, it would appear that he had no pain at rest. On 23 June 1999, he still had some lower back pain and stiffness. The attending medical practitioner noted that the plaintiff was off work because the defendant could not find him alternative duties.
29 There is a subsequent entry with the date partly obscured which may or may not refer to the plaintiff’s lower back. The attending doctor wrote the word “Good”. I infer that the reference to “Good” is a reference to the state of the plaintiff’s lower back.
30 The next entry in those clinical notes, in early August 2000, relates to the occasion when the plaintiff alleges that he suffered injury to his lower back, on which the first part of his claim for serious injury is based.
31 Mr Titshall cross-examined the plaintiff, directing his attention to the occasions when the plaintiff sought and obtained medical treatment prior to the date on which the plaintiff says he suffered injury to his lower back in early August 2000. Essentially, Mr Titshall put to the plaintiff that he suffered a lower back injury which was persistently symptomatic and which reduced his capacity for work at various times and that what occurred in early August 2000 was just another event along the way in an already established lower back injury.
32 The plaintiff’s evidence was difficult to follow in some respects because he was either unable to remember or his answers were not overly informative. This was the basis for Mr Titshall’s submission that the plaintiff’s credit was not in issue, but his reliability as an historian was.
33 Mr Philbrick, on the other hand, submitted that the submission made by Mr Titshall failed to take into account all of the evidence, and indeed, other very relevant evidence which demonstrated that the plaintiff did suffer a lower back injury prior to early August 2000, but it was significantly less serious than Mr Titshall submitted it was.
34 Firstly, Mr Philbrick referred to the marginal note adjacent to the entry in the clinical notes of 9 June 1999 which refers to the plaintiff having no back pain except the occasional niggle since he last suffered injury, which I infer takes him back to about August/September 1998.
35 Next, Mr Philbrick referred to the report of Dr Bonwick, general practitioner, dated 21 September 2006.[11] Dr Bonwick referred to the plaintiff seeing him on 9 June 1999 for a twisting injury to his lower back which occurred as a result of the plaintiff jumping down from the truck. He then noted the following:
“He gave a history of a back injury at work about one year before but had
been largely pain free since that had settled.”
[11] PCB 36-38
36 Mr Philbrick submitted that the next entry in Dr Bonwick’s report put paid to the submission that the plaintiff had any persisting lower back injury which was disabling to any significant degree:
“On review on 11.6.99 and subsequently on 15.6.99, he was much improved and was given a certificate to return to alternative duties with appropriate restrictions. Apparently his employer was unable to find appropriate duties and he remained off work until I saw him on 30.6.99 when he was assessed fit to resume full duties the following Monday 5.7.99. I reviewed him finally on 7.7.99 when he reported he had recovered well and was managing his normal duties.”
37 Dr Bonwick then noted that the next attendance by the plaintiff was on 3 August 2000.
38 Mr Philbrick submitted that neither the plain x-ray, which Dr Bonwick referred the plaintiff to undergo, nor any clinical findings made by Dr Bonwick, pointed to the plaintiff having suffered any more sinister injury than a temporary straining type injury.
39 On the basis of the foregoing, it occurs to me that the plaintiff undoubtedly suffered a straining type injury to his lower back before early August 2000, for which he sought and obtained treatment. However, the investigations undertaken on his behalf by the medical practitioners who attended upon him, and their clinical examinations of him, did not throw up any particular sinister injury to the plaintiff’s lower back.
40 The inescapable conclusion from the foregoing analysis of the clinical notes, and the report of Dr Bonwick, is that in between the occasions when the plaintiff suffered previous injury to his lower back he recovered almost fully, and that certainly appears to be the case after the incident which occurred on 9 June 1999. Thereafter, he was left with occasional niggling pain in his lower back.
41 Mr Philbrick submitted that what occurred in early August 2000 was a landmark event in terms of the injury that it produced.
42 The entry in the clinical notes dated 3 August 2000 is that for three days prior to the plaintiff attending that day he was suffering from lower back and right leg pain which was worsening. He gave the attending medical practitioner a history of no acute trauma but shovelling sand, mulch and undertaking heavy gardening as the cause of the onset of lower back and right leg pain. The balance of the entry is difficult to decipher. However, the report of Dr Bonwick, no doubt based upon his clinical notes, demonstrates clearly what Dr Bonwick diagnosed and the treatment he subsequently provided the plaintiff.
43 Dr Bonwick referred the plaintiff to have a CT scan, which was taken on 3 August 2000.[12] The radiologist reported that it showed the following:
“Appearances are those of a left posterocentral nuclear herniation arising from the L5-S1 disc and impinging upon the left S1 root. Please note this finding is left-sided whereas clinical notes refer to right-sided pain and further clinical correlation may be useful.”
[12] PCB 44
44 The results of the CT scan confirmed Dr Bonwick’s opinion that the plaintiff had suffered a lumbar disc lesion. Dr Bonwick advised the plaintiff to rest, to have physiotherapy, and he prescribed him analgesics for pain relief.
45 The balance of Dr Bonwick’s report is very full and informative of the subsequent course of events for the plaintiff. Dr Bonwick reviewed the plaintiff on 14 August 2000 and on about nine occasions thereafter relevant to his lower back injury.
46 It is clear from the occasions when the plaintiff was reviewed by Dr Bonwick that his lower back condition fluctuated. However, the nature and degree of the plaintiff’s lower back injury led Dr Bonwick to say, when he last saw the plaintiff on 6 September 2004, that the plaintiff was fit for alternative duties, and that he would be likely to need long-term work restrictions to lessen the potential for recurrence of his lower back injury.[13]
[13] Dr Bonwick expressed that opinion in connection with both the plaintiff’s lower back and neck injuries
47 Dr Hill referred the plaintiff to Mr Jensen, neurosurgeon. The plaintiff saw Mr Jensen in 2004. Mr Jensen examined the CT scan and appears to have agreed with the radiologist’s opinion that there was a prolapse at L5-S1. Mr Jensen did not treat the plaintiff.[14] I was informed that he left Australia and has not returned.
[14] PCB 38A
48 Dr Hill then referred the plaintiff to Mr Brazenor. The plaintiff first saw Mr Brazenor on 30 December 2004. Although the history obtained by Mr Brazenor is defective regarding the lower back injury, he examined the CT scan and concluded:
“CT scan dated 3 August 2000 showed a huge protrusion of the entire left posterior quadrant of the L5/S1 disc, - grievous injury. This is seen to greater advantage in the Magnetic Resonance Scan dated 10th December 2004 where it has evolved into a right paramedian protrusion. The 4/5 disc is normal other than showing a slight loss in T2 weighted signal.” [15]
[15] PCB 18
49 In his first affidavit sworn 11 July 2007, the plaintiff said that he continues to suffer from back pain; restriction of movement, in that he is unable to suffer strain on his lower back when mowing lawns, gardening, undertaking domestic tasks, moving furniture and undertaking home maintenance.[16] In his second affidavit sworn 13 August 2009, he said that the back pain comes and goes and is often initiated by a light activity. He said sitting or standing for too long results in increased pain. He said he has occasional numbness and pins and needles in his left leg often occurring after sitting for too long. He has trouble going up stairs. He said the pain in his lower back is worse in cold weather.[17]
[16] PCB 12
[17] PCB 14
50 Mr Philbrick submitted that as a result of the plaintiff suffering the landmark injury in early August 2000, I did not need to consider the prior lower back injuries, but if I arrived at the conclusion that the lower back injury which the plaintiff suffered in early August 2000 was an aggravation of the prior lower back injuries, I should nonetheless find that the significant pathological change confirmed by the radiological investigations demonstrates a very different grade of injury.
51 After considering the evidence carefully, I do not consider that I need to make a comparison between the plaintiff’s lower back injury prior to 20 October 1999 with what occurred in early August 2000.
52 The injuries are classically different and very easily distinguishable. Before 20 October 1999, the plaintiff suffered straining injuries from which he made a recovery except for an occasional niggle, which is hardly of much consequence considering he returned to his work full-time on full duties leading up to early August 2000.
53 However, what occurred in early August 2000 was not only the occurrence of a significant disc lesion, but also nerve root compression resulting in left leg symptoms. The nature and degree of the consequences to the plaintiff of that impairment of the function of his lower back is markedly different.
54 Therefore, the conclusion I have reached is that the plaintiff suffered an L5-S1 disc lesion impinging upon the S1 nerve root which arose as a result of what occurred in early August 2000, and that the consequences which the plaintiff has deposed to in his affidavits are causally connected to the impairment of the function of the plaintiff’s lower back resulting from that injury.
The Neck Injury
Pain and Suffering
55 In the plaintiff’s first affidavit he said that he developed pain in his neck in December 2003. The clinical notes of the Northern Industrial Medical Clinic reveal that he attended a medical practitioner, probably Dr Bonwick, on 1 December 2003, who diagnosed a neck strain. It would appear that he was referred to physiotherapy and prescribed medication.[18]
[18] PCB 92
56 The plaintiff was referred to have a plain x-ray on 1 December 2003[19] which revealed a reduction in the disc space at C5/6 with changes consistent with degeneration.
[19] PCB 42
57 It would appear that Dr Bonwick treated the plaintiff for his neck injury. In his report dated 21 September 2006, it would appear that the plaintiff was suffering fluctuating levels of pain in his neck and also from headaches. He was referred to physiotherapy and prescribed medication.
58 He sought and obtained treatment from Dr Bonwick on 6 September 2004, complaining of worsening neck pain which the plaintiff said was caused by manipulation of his neck undertaken by a physiotherapist. He developed worsening neck pain and developed pain and pins and needles in his left arm.[20]
[20] PCB 11 and 38
59 Dr Bonwick referred the plaintiff to have a CT scan which was taken on 7 September 2004. The radiologist considered that it revealed mild degenerative changes which were worse at C5-6.
60 The plaintiff stopped seeing Dr Bonwick. He was subsequently treated by Dr Hill. Dr Hill referred the plaintiff to Mr Jensen, and then to Mr Brazenor. Mr Brazenor inspected the CT scan and formed a different opinion from the radiologist and Dr Hill, considering that it showed a large left lateral recess prolapse of the C5-6 disc and a mild broad-based left lateral recess bulge at C6/7.[21]
[21] PCB 19. Mr Philbrick submitted that the manipulation by the physiotherapist resulting in worsening neck pain was not an intervening event. Mr Titshall agreed.
61 Mr Jensen referred the plaintiff to have an MRI scan of both his lower back and his neck. It was taken on 10 December 2004. The radiologist was of the opinion that the MRI scan showed disc disease at C5-6 causing minimal impression on the cervical cord, left C6 foraminal narrowing and a mild left paracentral C6-7 disc protrusion.[22] It appears that Mr Brazenor did not inspect the MRI scan.
[22] PCB 40
62 The plaintiff continued working until September 2004. He was experiencing increasing pain in his neck and from increasing headaches. He was also experiencing pins and needles down his left arm to his left thumb, together with a burning sensation in his left upper arm. He stopped working in September 2004. He made an attempt to return to work in early 2005 which was unsuccessful because the work he undertook aggravated the injuries to his lower back and neck.
63 Dr Hill continued treating the plaintiff. In a report dated 5 November 2008, he expressed an opinion which Mr Titshall submitted was internally inconsistent, but which Mr Philbrick said was not. In answer to a number of questions, he initially described the plaintiff’s neck pain as occasional, and in answer to another question, described the neck pain as recurring.
64 I do not think anything in particular rides on the difference in emphasis between Dr Hill’s reference to occasional pain and recurring pain. What is of greater importance is that the plaintiff was being treated by prescription of analgesics, physiotherapy and acupuncture for an injury to his neck which Dr Hill considered to be a permanent impairment.[23]
[23] PCB 33 and 34-35
65 The plaintiff was examined by a number of other medical practitioners on a medico-legal basis. There does not seem to be anything controversial in their opinions, and indeed, it would appear that they agree that the plaintiff suffered a disc injury to his neck – Dr Mutton, occupational physician;[24] Mr Clive Jones, orthopaedic surgeon;[25] Mr Shannon, orthopaedic surgeon;[26] Mr Ian Jones, orthopaedic surgeon;[27] and Dr Wyatt, occupational physician.[28]
[24] DCB 71
[25] DCB 82 and 84
[26] DCB 55-56
[27] DCB 38-39
[28] DCB 50
66 Furthermore, those medical practitioners largely accept that the disc injury is responsible for the pain and altered sensation which the plaintiff experiences down his left arm. The most recent opinions in that regard were provided by Mr Ian Jones and Dr Wyatt, both of whom accept that the plaintiff’s neck injury is responsible for the pain referred into his left arm.[29]
[29] DCB 38 and 50
67 In his first affidavit, the plaintiff said that he has left-sided neck pain. He has headaches which are sometimes severe. He has pain going into his left shoulder and arm, with numbness in his left thumb. He has difficulty sleeping, driving, sitting and engaging in activities which placed strain on his neck, such as mowing lawns, gardening, engaging in domestic tasks, moving furniture and engaging in home maintenance.[30] In his second affidavit he said that he continues to suffer from left-sided neck pain, and also a cracking sensation in his neck and pulling sensation in his left shoulder.[31]
[30] PCB 12
[31] PCB 14-15
68 I find that the plaintiff probably aggravated degenerative changes in his neck and also suffered a discal injury, consistent with the preponderance of the medical opinions and the recent opinions of Mr Jones and Dr Wyatt, which is responsible for the pain radiating into his left shoulder and down his arm and extending down as far as his left thumb.
69 I accept the plaintiff’s evidence of the nature and extent of the consequences suffered by him as a result of suffering the injury to his neck.
70 Therefore, I find that the plaintiff suffered an injury to his neck comprising aggravation of degenerative changes and a discal injury which has resulted in pain radiating into the plaintiff’s left shoulder, arm and left thumb. I find that the injury has impaired the function of the plaintiff’s neck and that the impairment is permanent. I find that the consequences to the plaintiff of suffering the impairment of the function of his neck impacts upon nearly every aspect of his nonworking life, and therefore, I consider that the consequences to the plaintiff deserve the description at the least very considerable. I have reached the foregoing conclusion after making a comparison with other cases in the range of possible impairments or losses.
Loss of Earning Capacity
71 As a consequence of the plaintiff’s lower back injury, he was rendered unfit for light duties which he was undertaking until the worsening of his neck injury in about September 2004, after which he ceased work. Despite an attempt to return to light work in early 2005, the plaintiff now says that he no longer has a capacity for full-time light duties.
72 Dr Hill was of the opinion that the plaintiff’s neck injury incapacitated the plaintiff for work. However, Dr Hill referred to the plaintiff’s attempts to return to the workforce, and indeed, the plaintiff’s eagerness to return to work. Dr Hill seems to have been filled with some optimism that what was needed was an employer prepared to give the plaintiff a chance to do some work.
73 The preponderance of the medical evidence is in a similar vein. The plaintiff does have a capacity for work. Dr Horsley turned her mind very particularly to the plaintiff’s capacity for work. She was of the opinion that the plaintiff could work for 20 hours per week, with the imposition of restrictions on extension, flexion and rotation of his neck; working above shoulder level; repetitive overreaching; repetitive pushing and pulling; lifting items greater than 10-12 kg and lifting items of 5-8 kg on a repetitive basis.[32]
[32] PCB 61
74 Mr Philbrick submitted that the plaintiff’s gross income from personal exertion which most fairly reflected his earning capacity is the sum of $35,803 which he earned in the year ending 30 June 2004. He submitted that 60 per cent of that sum is $23,281. Mr Titshall did not contest the accuracy of the figures submitted by Mr Philbrick.
75 Mr Philbrick submitted that if I accepted the evidence of Dr Horsley then the plaintiff could easily establish a loss of earning capacity of 40 per cent or more based on the following:
Job Weekly Per annum
Motor vehicle spare parts interpreter $594 $16,256 Service manager $650 $17,789 Service station manager/attendant $620 $19,968 Fleet manager $693 $18,966 Insurance clerk $707 $19,349 76 However, the foregoing are not the jobs which the plaintiff applied for. He applied for a sales assistant job at Beaurepaires; the workshop manager’s job at Kmart; a job at Bunnings; a job as an authorised officer with Yarra Trams;[33] a job handling tail shafts;[34] a job as a traffic control officer; a job as a parking officer; and as a service advisor to Essendon Hyundai.[35]
[33] PCB 15
[34] Transcript 49
[35] Transcript 49
77 The plaintiff gave evidence that he would have difficulty undertaking those jobs because various aspects of them would expose him to strain which he said he would not be capable of tolerating.[36]
[36] Transcript 47-49
78 Mr Titshall submitted that the plaintiff had not discharged the onus he bears under subsection (19)(b) because in comparing his residual capacity for light work he was making a comparison with jobs which he had not applied for.[37] Furthermore, he submitted that the gross incomes relied upon were current as at 11 September 2007 and not at the date of trial. Mr Titshall submitted that the plaintiff had not adduced any evidence of the gross income relevant to the jobs he had applied for.[38]
[37] The evidence relied upon by the plaintiff in the course of making the comparison was taken from a report of Farquhar & Associates dated 11 September 2007, at PCB 85-100
[38] Subsection (38)(f) prescribes the means by which the plaintiff's gross income is to be arrived at as a starting point for the purpose of making a comparison with the gross income he could earn by exercising the capacity for work which he has retained. It is implicit in subsection (38)(e), (f) and (g) that the comparison is to be made with the plaintiff's present capacity for work and the gross income he could earn if he exercised that capacity.
79 It may very well be that if the plaintiff adduced evidence of the gross income relevant to the jobs he applied for, a comparison would demonstrate a loss of earning capacity of 40 per cent or more. However, the plaintiff has not adduced that evidence. There is no basis upon which I can assume that the gross income from the jobs he applied for are in the same range as those on which he has made the comparison in attempting to establish a loss of earning capacity of 40 percent or more.
80 I see no reason why I should not accept the evidence of Dr Horsley, because it is the only evidence which deals with the extent to which the plaintiff’s neck injury has diminished his capacity for work. However, her evidence is only part of the thesis. The failure of the plaintiff to prove the gross income of the jobs he applied for, so that the relevant comparison can be made, amounts to a failure to discharge the onus he bears under subsection (19)(b).
Conclusion
81 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering for the injury to his lower back arising out of his employment.
82 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering for the injury to his neck arising out of his employment.
83 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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