Valic v TCL Australia Pty Ltd
[2017] VCC 1149
•22 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-04498
| ZARKO VALIC | Plaintiff |
| v | |
| TCL AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 August 2017 | |
DATE OF JUDGMENT: | 22 August 2017 | |
CASE MAY BE CITED AS: | Valic v TCL Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1149 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower back – pecuniary loss – suitable employment
Legislation Cited: Accident Compensation Act1985
Cases Cited:Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188 ; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170.
Judgment: Application successful.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr M Fogarty | Maurice Blackburn |
| For the Defendant | Mr N Rattray | Wisewould Mahony |
HER HONOUR:
Preliminary
1 Mr Valic is a 52-year-old man who claims to have suffered an injury to his lower back, while undertaking heavy and repetitive lifting in the course of his employment as a storeperson for the defendant, from November 2009 until December 2013. Mr Valic has not worked since that time, and claims that he is unable to hold down permanent employment as a reliable employee due to his ongoing lower back pain.
2 Mr Valic claims to have suffered serious consequences as a result of this lower back injury, both in respect of his pain and suffering and his loss of earning capacity. In order for Mr Valic to be entitled to claim common law damages, the impairment of his lumbar spine must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“ACA”).
3 The defendant accepts that Mr Valic suffered a lower back injury during the course of his employment, but disputes that his consequences are serious.
4 Only Mr Valic was called to give evidence, and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
5 For the reasons which follow, I am satisfied that Mr Valic has satisfied the requisite loss of earning capacity test, such that he should be granted leave to commence common law proceedings.
Mr Valic’s life before he suffered his lower back injury
6 Mr Valic was born in Croatia and migrated to Australia as a four year old. He is married with three adult children, two of whom still live at home.
7 Mr Valic completed Year 11 at Clayton Technical School. He was then employed as a process worker in a factory for about nine years, after which he was elected to work as a union organiser for the National Union of Workers. Mr Valic remained in this role for approximately 12 years, and only left when he was unsuccessful in re-election, with his team losing to a rival political ticket. Mr Valic said that he was required to drive to different worksites in order to liaise with shop stewards and union members, regarding matters such as Enterprise Bargaining Agreement negotiations, industrial disputes and health and safety matters. Mr Valic said that he received no formal training in this role, and that he had support staff to assist him with clerical tasks.
8 After leaving the union, Mr Valic worked in a range of labouring and storeperson jobs, each of which he obtained through a labour hire company. From 2005 until December 2007, he worked as a saw operator for Vulcan Steel Pty Ltd, during which time he suffered an injury to his right shoulder. Mr Valic received physiotherapy treatment for this injury and, after a period of time off work, was eventually cleared to return to normal full-time duties.
9 Mr Valic made a claim for a permanent impairment benefit in respect of his right shoulder injury, under s98C of the ACA. For the purpose of assessing this claim, the relevant WorkCover insurer arranged for Mr Valic to be examined by occupational physician, Dr David Fish, in January 2010. In his report dated 8 January 2010, Mr Fish noted that Mr Valic had returned to work as a storeperson where he was working 30 hours a week. Dr Fish reported that Mr Valic struggled with his duties due to continuing right shoulder pain, which was exacerbated by heavy lifting or overhead work. It was noted that Mr Valic took Voltaren and Panadeine Forte, and also used alcohol to control his pain.
10 Mr Valic was cross-examined regarding Dr Fish’s report. He was unable to recall what he said to Dr Fish, but accepted that he could have told him that his right shoulder restricted him in his work around the house. However, Mr Valic said that his right shoulder improved, such that he did not require any further medical treatment. He also said that he was able to lift 25 kilograms of goods for the defendant without experiencing any problems in his right shoulder.
11 Mr Valic said that he had not suffered any lower back pain prior to commencing his employment with the defendant. He said that he had owned boats over the years and that he enjoyed fishing and boating. Mr Valic also owned a Harley Davidson motorcycle, and said that he enjoyed going for long rides on weekends, for half, and sometimes up to, a full day.
12 Mr Valic also had two Husky dogs whom he walked on a daily basis.
Mr Valic’s lower back injury and its consequences to him
13 In December 2009, Mr Valic commenced employment with the defendant. He said that the work was initially relatively light, but that soon after, as he became familiar with the defendant’s products, he was required to undertake large amounts of heavy and repetitive lifting, bending and twisting, including lifting and stacking bags of resin and unloading containers of boxes.
14 Mr Valic said that he first experienced lower back pain in approximately September 2012, at which time he consulted his general practitioner, Dr Malcolm McCowan, at the Station Street Medical Clinic in Pakenham. He was initially prescribed anti-inflammatory medication and given a few days off work.
15 In February 2013, Mr Valic again consulted Dr McCowan regarding ongoing lower back pain. At this time, he was advised to take medication and to use heat packs.
16 In June 2013, Dr McCowan certified Mr Valic fit for light duties and referred him to physiotherapist, Mr Ross Edwards. In his report dated 22 May 2015, Mr Edwards noted that, at that time, Mr Valic was having difficulties getting out of bed, bending, sitting and driving to work. He was then provided with physiotherapy treatment for two months, on a weekly, and subsequently, fortnightly basis. Such treatment involved ultrasound, massage, mobilisation, stretches and home exercises.
17 In June 2013, Mr Valic also lodged a WorkCover Claim that was subsequently accepted. He thereafter worked light duties for the defendant until 6 December 2013, at which time he was forced to cease work due to an increase in lower back pain. Mr Valic has not worked since that time.
18 On 20 November 2013, a CT scan was taken of Mr Valic’s lumbar spine. It was reported as demonstrating degenerative changes, with a broad based disc bulge at L5-S1.
19 In November 2013, Mr Valic was referred to neurosurgeon, Mr Michael Pullar. Mr Pullar considered the disc prolapse to be relatively trivial as it did not substantially compress Mr Valic’s left S1 nerve root. Mr Pullar did not recommend surgery, but instead considered an epidural injection to be appropriate treatment.
20 On 28 April 2014, an MRI scan was taken of Mr Valic’s lumbar spine. It demonstrated an L5-S1 disc bulge with superimposed left paracentral disc extrusion posteriorly displacing the descending left S1 nerve root.
21 In June 2014, Mr Valic underwent an epidural Cortisone injection, from which he gained little improvement.
22 In July 2014, Mr Valic was referred to neurosurgeon, Mr Myron Rogers, for a second opinion. Mr Rogers noted that Mr Valic had chronic sciatica and recommended that he undergo a microdiscectomy at L5-S1. Mr Valic said he is not keen on surgical intervention, as he has received conflicting advice from surgeons as to whether he is likely to receive any benefit.
23 In May 2015, Mr Valic was referred to psychologist, Mr Martin Sharman, as he felt anxious and depressed and had difficulty sleeping.
24 In March 2015, Mr Valic’s employment was terminated on the basis that he was unable to return to his pre-injury duties.
25 On 26 June 2017, a further MRI scan was taken of Mr Valic’s lumbar spine. It was reported as demonstrating degenerative disc and facet changes throughout, with facet synovitis and effusion at L5-S1 bilaterally. It further noted a subtle contact/deformation of the exiting left L3, L4 and L5 nerve roots.
26 Mr Valic said that he continues to consult Dr McCowan at least once a month, and that he provides Mr Valic with certificates stating that he has no capacity for work. He also prescribes medication. Mr Valic sees his physiotherapist and psychologist every fortnight.
27 Mr Valic said that he continues to suffer from constant fluctuating lower back pain, which is made worse by activity. He said that his pain radiates into his legs, especially on his left side, and that at times he has a tingling sensation in his left leg and foot.
28 Mr Valic said that due to his lower back and leg pain, he has difficulty standing for long periods and that he is limited in his ability to perform activities requiring repetitive lifting, bending and twisting. Mr Valic said that he has regular flare-ups of severe pain, during which he experiences a sharp, stabbing pain in his lower back. He said that such episodes can occur multiple times per week, and can last up to three to four days. Mr Valic said that he generally needs to lie down when he experiences a flare-up in order to alleviate his pain, and that some days he can barely get up to get dressed.
29 Mr Valic said his sleep is also regularly disrupted by his lower back and leg pain. He said that most nights he only gets four to five hours sleep, and that such sleep is broken, as he is often woken by pain. He said that as a consequence he is tired during the day; sometimes exhausted. Mr Valic said he could not recall the last time he had a good night’s sleep. Mr Valic said that due to his fatigue and ongoing pain, his ability to concentrate and remember things is poor and that he struggles to focus for long periods.
30 Mr Valic said that he takes Durotran when his lower back or leg pain is especially bad, but that he tries to avoid doing so as he does not want to become dependent upon medication. He said that he may also take Nurolex every week or so to help him sleep, but that again, he tries to avoid taking such medication.
31 Mr Valic said he can no longer walk his dogs, but that his physiotherapist has recommended that he still walk regularly. He said he might walk three times a week for approximately 20 minutes, but that he struggles to do any more, as even this amount is very painful for him.
32 Mr Valic said that he still tries to do what he can around the house. He said that his youngest son usually now mows the lawns, but that he will sometimes attempt to, as he feels guilty doing nothing. When he does do the mowing, however, Mr Valic said he has to break up the job over a couple of days, as well as take medication beforehand.
33 Mr Valic said that he has not returned to boating or fishing as a consequence of his ongoing lower back pain. He said that he has kept his motorcycle and that, out of guilt, he will occasionally take it for a five-minute drive around the block. However, he said his motorcycle is currently on the market for sale as he is unable to enjoy riding it in the way that he previously did.
Mr Valic’s medico-legal evidence
34 Mr Valic’s solicitors arranged for him to be assessed by occupational therapist, Dr Robyn Horsley, in June 2017. In her report dated 14 June 2017, Dr Horsley detailed Mr Valic’s educational and employment history, together with his current complaints of lower back pain. Dr Horsley noted that Mr Valic has a sitting tolerance of up to an hour, a static standing tolerance of five minutes, a walking tolerance of 20 minutes and a driving tolerance of one to two hours.
35 Dr Horsley was of the opinion that Mr Valic suffered ongoing mechanical back pain and referred left leg pain. She noted that Mr Valic would be required to undergo considerable retraining and upgrading of his computer skills if he was to return to the workforce.
36 Dr Horsley was of the opinion that as a consequence of his lower back injury, Mr Valic would be subject to the following work restrictions:
· avoidance of repetitive overreaching
· avoidance of repetitive pushing and pulling
· avoidance of working in awkward and confined spaces
· avoidance of static postures involving the lumbar spine
· avoidance of repetitive bending and lifting
· avoidance of lifting items greater than 10-12 kilograms, except on an occasional basis
· avoidance of lifting items up to 5-8 kilograms on a repetitive basis
· good manual handling technique when lifting items.
37 In considering his lower back injury in isolation, and putting aside his psychiatric status, Dr Horsley was of the opinion that Mr Valic would have the capacity for work once his functional tolerances improved, in the vicinity of 15 to 20 hours per week, within the restrictions detailed above.
38 Dr Horsley considered Mr Valic’s capacity to work greater hours would depend upon Mr Valic’s retraining, improvement in functional tolerances and active management of his psychological status.
39 In June 2017, Mr Valic’s solicitors arranged for him to be examined by neurosurgeon, Mr Mohammed Awad. In his report dated 28 June 2017, Mr Awad diagnosed Mr Valic as suffering aggravation of lumbar spondylosis, causing the initial acute disc prolapse, together with ongoing sequelae from aggravation of lumbar spondylosis. Mr Awad accepted that Mr Valic’s repetitive and heavy workplace activities had been a significant contributing factor to the aggravation of his lumbar spondylosis.
40 Mr Awad was of the opinion that Mr Valic should be restricted from any form of repetitive bending, pushing, pulling; any form of lifting, or any occupation that required him to sit or stand for more than 15 to 20 minute periods without breaks.
41 Mr Awad was also of the opinion that Mr Valic had the physical capacity to undertake extremely sedentary work for several hours a day, several hours per week, if a suitable job was available. However, Mr Awad stated that, in the event that Mr Valic was able to obtain suitable employment, it would be “extremely unlikely that he would be able to carry this out in a reliably consistent fashion”.
42 Mr Awad recommended that consideration be given to further treatment by way of injections into Mr Valic’s spine. In the alternative, he considered a spinal fusion at L5-S1 to be appropriate treatment.
43 Mr Valic also sought to rely upon a medico-legal opinion which the defendant had obtained from orthopaedic surgeon, Mr John O’Brien, in December 2014. In his report dated 9 December 2014, Mr O’Brien considered that Mr Valic had suffered a left L5-S1 disc herniation with marked restriction of lumbar movement and accompanying evidence of nerve root compromise, with evidence of radiculopathy and some sensory change and loss of ankle reflex.
44 Mr O’Brien was of the opinion that Mr Valic was unable to return to his pre-injury duties, and said that, given his current presentation and physical signs, Mr Valic was totally incapacitated for work. He also said there was no timeframe for a likely return to gainful employment.
Defendant’s medico-legal evidence
45 The defendant arranged for Mr Valic to be examined by occupational physician, Dr Michael Baynes, on two occasions in September 2016 and June 2017. In his first report dated 1 September 2016, Dr Baynes diagnosed Mr Valic as suffering chronic lower back pain associated with an L5-S1 left-sided paracentral disc prolapse, with some pressure on the left S1 nerve root. Dr Baynes was of the opinion that Mr Valic was fit for alternative duties of a sedentary nature, where there was no lifting greater than five kilograms and no lifting from below knee height or above shoulder height. Further, it was noted that Mr Valic would need to be able to frequently change his posture and rotate duties. Dr Baynes was of the opinion that Mr Valic was fit for part-time hours of 20 to 25 per week.
46 In his second report dated 6 June 2017, Dr Baynes confirmed his opinion that Mr Valic had a physical capacity for alternate duties with the restrictions previously stated. He stated that Mr Valic was fit for part-time hours of around 20 to 25 per week. He also made specific reference to Mr Valic undertaking employment as a despatch clerk, as it was a sedentary job, whose duties were consistent with the restrictions he imposed.
47 Dr Baynes then considered that with “work hardening”, Mr Valic may ultimately be fit to work 30 hours per week, but thought that he was unlikely to reach full-time hours due to his ongoing back pain.
48 In February 2017, the defendant arranged for Mr Valic to be examined by orthopaedic surgeon, Mr Michael Dooley. In his report dated 16 February 2017, Mr Dooley stated that, in his opinion, Mr Valic suffered age-related degenerative disc disease of the lower lumbar spine.
49 Mr Dooley was of the opinion that, during the course of his employment in September 2012, Mr Valic developed a left-sided lumbosacral disc prolapse. Mr Dooley considered that while Mr Valic was unfit to carry out regular, heavy, physical work or repetitive bending, lifting and manoeuvring, he had a physical capacity to carry out light, physical work and clerical-type work. In offering this opinion, Mr Dooley did not express the number of hours he considered Mr Valic capable of performing in such employment.
50 In a supplementary report dated 16 March 2017, Mr Dooley was asked to comment upon Mr Valic’s right shoulder problem, in the context of Dr Fish’s report of January 2010. Mr Dooley was of the opinion that Mr Valic did not suffer any ongoing problems in his right shoulder, in circumstances where he was working as a storeman and carrying out regular lifting and manoeuvring-type activities by 2012.
51 Finally, in a further supplementary report dated 26 July 2017, Mr Dooley stated that, in his opinion, the recent MRI scan demonstrated that the left-sided lumbosacral disc prolapse was no longer present. He stated that this is consistent with the natural history of resorption of disc prolapses. However, it was noted that a disc prolapse does involve some aggravation of underlying degenerative disc disease and that, following recovery, patients may note some ongoing intermittent lower back pain and intermittent lower limb pain.
52 The defendant also relied upon a report from orthopaedic surgeon, Associate Professor Bruce Love, who examined Mr Valic in November 2015. In his report dated 27 November 2015, Associate Professor Love reviewed vocational assessments of Mr Valic and stated that, in his opinion, Mr Valic had no capacity for work. He also considered that a likelihood of success in retraining would be low.
53 In a supplementary report dated 14 December 2015, Associate Professor Love provided an opinion that completely contradicted his earlier opinion. He considered Mr Valic was fit for suitable employment, including sedentary or partially sedentary employment. However, Associate Professor Love provided no explanation as to the basis of this changed opinion.
Mr Valic’s credibility
54 I considered Mr Valic to be an honest and reliable witness who gave evidence in a simple and straightforward manner. I do not consider that he sought to exaggerate or overstate his symptoms, nor the impact his pain has had upon his life.
55 I consider Mr Valic gave frank answers in relation to the amount of medication he takes. He also conceded that he sometimes does activities “out of guilt”, whether it be driving his motorcycle around the block for a few minutes or mowing his lawns, to alleviate the burden on his son.
56 I also considered Mr Valic’s evidence in relation to his reluctance to undergo back surgery on the basis of mixed advice, to be entirely credible.
57 The defendant submitted that I should have reservations regarding Mr Valic’s reliability, as he had previously sought to overstate his right shoulder symptoms when examined by Dr Fish in January 2010. I do not accept that Mr Valic intentionally exaggerated his shoulder pain at that time. I accept it is likely that he still had some restrictions at the time he was examined by Dr Fish, but that his right shoulder pain has improved over time, such that he has not required any ongoing medical treatment. I also note that the heavy nature of the work Mr Valic was performing with the defendant would be inconsistent with him having ongoing right shoulder problems of any significance. For me to find otherwise would involve mere speculation, and in circumstances where I otherwise accepted Mr Valic as an honest and reliable witness, I accept his evidence regarding his right shoulder injury.[1]
[1]I also note that Mr Dooley’s report of 16 March 2017 supports this finding.
58 I am therefore satisfied that Mr Valic is a witness of truth and I have no hesitation in accepting his evidence in its entirety.
Mr Valic’s loss of earning capacity claim
59To succeed in this application, Mr Valic has the onus of satisfying me, that as at the date of hearing, as a consequence of his lumbar spine injury, he has sustained a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what Mr Valic is capable of earning, whether in suitable employment or not.
60In undertaking this task, I must compare what Mr Valic is currently earning, or capable of earning, in suitable employment, with his pre-injury earning capacity. To determine his pre-injury earning capacity, I must decide which of the following scenarios most fairly reflects the worker’s earning capacity, had he not suffered the injury:
(a)The gross income the plaintiff earned (or was capable of earning) from personal exertion in the three years before the injury;
(b)The gross income the plaintiff would have earned (or would have been capable of earning) from personal exertion in the three years after the injury, if the injury had not occurred.[2]
[2]Section134AB(38)(f)
61Mr Valic earned the following gross income in the three years prior to lodging his WorkCover Claim:
· 30 June 2011- $48,925
· 30 June 2012 - $51,654
· 30 June 2012 - $45,068.
62 I consider that the financial year ended 30 June 2012, which was Mr Valic’s highest earning year, to be the figure that most fairly reflects his without injury earning capacity. It equates to a gross weekly wage of $993.34. To succeed in his claim, Mr Valic must satisfy me that, as a consequence of his lower back injury, he is incapable of earning more than 60 per cent of that gross weekly sum – that is, $596.00 per week.[3] I must be satisfied that Mr Valic suffers this loss now and on a permanent basis.
[3]Mr Harrison indicated that the appropriate 60 per cent figure was $648.10. This was not challenged by Mr Rattray, however, neither party explained to me the basis for the calculation of this figure. In circumstances where I am satisfied that Mr Valic suffers a total loss of earning capacity, it is not necessary to resolve the discrepancy in the figures.
63 In assessing Mr Valic’s claim for loss of earning capacity, I am obliged to do so realistically, by reference to his physical limitations and by reference to what might or might not amount to “suitable employment” in the foreseeable future.[4]
[4]Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188 at [48]
64 The definition of suitable employment is an objective test which looks at the worker’s current suitability for work, taking into account matters such as the worker’s age, education, experience, and whether or not the work is a reasonable distance from the plaintiff’s place of residence.[5]
[5]See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [25] and [28].
65 This is a test of physical capacity, not employability, but it involves a consideration of what Mr Valic might, in the foreseeable future, be able to do on “a regular and consistent basis”,[6] allowing for such improvement as might be thought likely or possible after undertaking vocational education, or undertaking a pain management program.[7]
[6](Supra) at [49]
[7](Supra) at [49]
66 I accept Mr Valic’s evidence that his lower back pain is constant, and that it fluctuates in severity. When he has a severe flare-up of pain it can last for three to four days. I accept that some days his pain is so bad that he struggles to get dressed and that he needs to lie down to alleviate the pain.
67 I am also satisfied that Mr Valic’s lower back pain significantly interferes with his sleep, such that he wakes tired, and sometimes exhausted. I accept that such fatigue impacts upon his ability to concentrate during the day.
68 I am satisfied that Mr Valic lives a very sedentary life. He is only able to walk for approximately 20 minutes, three times a week and that he is in pain while doing so. I also accept that he has a limited sitting and standing tolerance.
69 Mr Valic was cross-examined as to the number of jobs that have been recommended as suitable employment by vocational assessors HealtheWork and Recovre. Such jobs included despatch clerk and a weighbridge clerk. Mr Valic stated that, while he believed he could physically cope with such light sedentary work on a good day, he felt he would struggle to concentrate on administrative tasks due to his fatigue from poor sleep. Mr Valic also said that on bad days, he would not be able to get dressed and drive to work, thus rendering him an unreliable employee.
70 In cross-examination, Mr Valic was asked why he had not applied for work. His responses were as follows:
Q: “I could suggest to you a whole host of light jobs that we've got here, and you say you don't even get to first base because you - - - ?---
A: Some days I - I resign to the fact that jumping in the car would be ridiculous because I couldn't concentrate on actually driving in the car because I haven't had any sleep or I'm still affected by the medication the night before, or that I'm in discomfort or pain where I don't really - and I've been in a position where I don't really concentrate on what I'm doing because I'm concentrating on the pain.
Q: So it wouldn't matter how light the job was, you couldn't get to first base because you couldn't get out of bed reliably?---
A: On some days, yeah, yeah.
Q: You've never really tested your capacity, have you? You've formed a view that you are just not going to do anything.---
A: No, no some - as I said, some days I find that I struggle to dress myself to get out of bed, and generally, I'm buggered for - to jump in the car would be ridiculous. I know my limitations so whether it's a weigh bridge operator, whatever that is, or a sales assistance (sic), how could I possibly do that? On a great day, yes, I could possibly do it but there aren't many of those.”
71 Dr McCowan has certified Mr Valic as being totally incapacitated for all work since December 2013.
72 In December 2014, Mr O’Brien was of the opinion that Mr Valic was totally incapacitated. I note that the defendant did not arrange a further examination with Mr O’Brien.
73 In November 2015, Associate Professor Love was of the opinion that Mr Valic had no capacity for work. However, the following month, Associate Professor Love retracted this opinion without a further re-examination of Mr Valic, and without any explanation for the change.
74 Dr Baynes and Dr Horsley both expressed a number of restrictions which Mr Valic would require in order to be able to return to a sedentary job. Both doctors were optimistic that Mr Valic could work on a part-time basis. Dr Horsley considered 15 to 20 hours a week to be realistic and Dr Baynes considered 25 to 30 hours a week to be realistic. However, in offering these opinions, neither doctor commented upon the plaintiff’s reliability in such employment.
75 Mr Awad was of the opinion that Mr Valic could work a maximum of two to three hours per day, for two to three days per week. However, he considered it was unlikely Mr Valic could perform such suitable employment in a reliably consistent manner.
76 Mr Dooley was of the opinion that Mr Valic could undertake light sedentary work, however, he did not state the number of hours nor comment on whether he considered Mr Valic would have issues of reliability.
77 I accept that Mr Valic suffers constant lower back pain. I also accept that his flare-ups of back pain are unpredictable, and that some days he cannot get dressed and is unable to drive. I accept that he is tired from broken sleep and that he struggles to concentrate. I am therefore satisfied that Mr Valic’s lower back injury prevents him for undertaking suitable employment in a reliable and consistent manner.
78 As a consequence, I am satisfied that Mr Valic suffers a total loss of earning capacity. I do consider further medical treatment to offer any prospect of improvement. I am therefore satisfied that his incapacity will remain for the future, and is permanent.
79Once the threshold of 40 per cent reduction in earning capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the “very considerable” test.[8] Given my acceptance that the plaintiff’s injury prevents him from reliably returning to any form of suitable employment, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as very considerable.
[8]Section 134AB(38)(c)
80 As Mr Valic has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his lower back injury, it is not necessary for me to consider separately his pain and suffering consequences.[9]
[9]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at [63]
81In such circumstances, Mr Valic is granted leave to commence a common law claim for pain and suffering and loss of earning capacity damages.
82I will make the consequent orders.
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