Vasilevski v Feltex Aust Pty Ltd and VWA
[2010] VCC 915
•26 July 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-00348
| CANE VASILEVSKI | Plaintiff |
| V | |
| FELTEX AUSTRALIA PTY LTD and | |
| VICTORIAN WORKCOVER AUTHORITY | Defendants |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2, 3 and 6 July 2010 |
| DATE OF JUDGMENT: | 26 July 2010 |
| CASE MAY BE CITED AS: | Vasilevski v Feltex Aust Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0915 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - s134AB Accident Compensation Act 1985 – claim in relation to pain and suffering and loss of earning capacity – permanent impairment of the plaintiff’s thoracolumbar spine by reason of aggravation of pre-existing degenerative disease – whether the pain and suffering consequence was more than significant or marked or at least “very considerable”– whether the plaintiff suffered the requisite economic loss given his capacity for full time employment prior to redundancy.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R C Forsyth | John Bellios & Associates |
| For the Defendant | Mr M R Titshall QC | Lander & Rogers |
| Ms M Taaffee | ||
| HER HONOUR: |
Introduction
1 Between 1973 and March 2007 when the Feltex Australia Pty Ltd carpet factory at Tottenham closed, the plaintiff was employed initially as a labourer and, subsequently as a machine operator. The latter involved both operating a machine in the defendant's printing department and driving a forklift at its Tottenham plant.
2 By originating motion filed on 2 February 2009 the plaintiff seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring proceedings for the recovery of pain and suffering and loss of earning capacity damages.
3 The application is made under paragraph (a) of the definition of serious injury; that is serious permanent impairment or loss of function of thoracolumbar spine by reason of permanent aggravation of pre-existing degenerative disease in this region of the spine.
4 According to the plaintiff his condition was rendered symptomatic as a result of an incident at work on 23 June 2003. The incident he said precipitated permanent impairment of this body function was described by the plaintiff in paragraph 7 of his first affidavit sworn on 5 September 2008 in the following words:
“7. On 23 June 2010 I was descending the ladder after using the spray gun to clean the filter. I slipped on the second or third step from the bottom, missed the last step losing my grip with my left hand, and as I held on with my right hand I twisted violently to save myself falling. I jolted my hip and back as I landed on the floor. I felt a sharp pain in the right hip area and right leg. The pain radiated into the right thigh and down my leg. Shortly afterwards I was unable to move because of severe pain and stiffness.”
The areas of dispute
5 The defendant did not contest that the plaintiff suffered a compensable aggravation injury to his thoracolumbar spine on the date alleged and in a work-related incident. However, it disputed firstly whether given his pre- existing back condition the alleged pain and suffering consequence was more than significant or marked, or at least very considerable and secondly, whether given his capacity for full-time employment the plaintiff suffered the requisite economic loss. According to the defendant, on closure of its factory in March 2007, the plaintiff had "elected" to accept a redundancy package and since then, rather than remain in the workforce, he had retired.
6 I was also asked by the defendant to draw an adverse inference from the fact that notwithstanding ongoing treatment and MRI investigation ordered during 2009 by orthopaedic surgeon Mr Barrett, no explanation other than oversight was offered by the plaintiff's Counsel for the absence of any current medical report from the surgeon. I will say more about this issue when I deal with the medical evidence.
7 The plaintiff's credit was challenged. Having read the material, heard the plaintiff's evidence and viewed six segments of surveillance film obtained during 2009 and 2010, I concluded that generally during cross-examination and, in particular, on the numerous occasions on which he denied or contradicted matters specifically reported in, for example, the progress notes tendered as part of his Court Book, the plaintiff sought to mitigate the impact of any record he thought may be adverse to the success of his application and, that both in his evidence and in his reports to doctors he probably exaggerated particularly the current extent of any injury-related limitations and pain and suffering consequence. Where appropriate I will give examples of these matters.
The statutory requirements and evidence
8 In accordance with the Act and case law interpreting the relevant provisions the following considerations apply to s134AB.
9 To succeed, the plaintiff must prove a compensable injury and that the pain and suffering and pecuniary loss consequences of injury-related impairment, when judged by comparison with other cases in the range of possible impairments of the thoracolumbar spine, are more than "significant" or "marked" and at least "very considerable".
10 In summary, the plaintiff is required to establish a compensable injury after 20 October 1999 which, by definition, includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease; the nature of the injury; the consequences as at the date of hearing, in this case both pain and suffering and pecuniary loss, to which compensable injury materially contributes; and that these consequences are serious in the sense that they are permanent and "very considerable".
11 Any psychological or psychiatric consequence of the plaintiff's physical injury cannot be taken into account in determining this application for leave under paragraph (a) of the definition of serious injury.
12 In this case, where there is pre-existing degenerative disease of the thoracolumbar region of the spine, I must consider what the evidence discloses as to the prior condition of the plaintiff's spine and determine whether any additional impairment resulting from the incident on 23 June 2003 is serious and permanent.
13 The plaintiff will not establish the requisite loss of earning capacity if, after taking into account his physical capacity for suitable employment post-injury and his attempts to participate in rehabilitation and retraining, he has a capacity for any employment which if exercised would result in his earning more than 60% of his pre-injury earnings determined in accordance with ss134AB(38)(f) of the Act.
14 The onus rests on the plaintiff to prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment (s134AB(19)(b)).
15 As from 1 July 2010 the Act (as amended) redefines “suitable employment” such that the plaintiff’s capacity to earn from suitable employment must be taken into account, whether or not the suitable employment is available and is of a type or nature that is generally available in the employment market.
16 If the plaintiff satisfies the loss of earning capacity requirements in s134AB of the Act, he will be entitled to leave in respect to both these damages and pain and suffering damages without further determination of this aspect of the application.
The evidence called and tendered
17 With the assistance of an interpreter and subject to correction of paragraph 6 of his first affidavit, the plaintiff deposed to the accuracy of both his affidavit sworn on 5 September 2008 and his further affidavit sworn on 2 July 2010. He was cross-examined at length.
18 The material tendered by the plaintiff consisted of his Court Book from which a number of documents had been removed and to which, with the leave of the Court, his further affidavit, OccWest clinical notes, a Return to Work Plan No 6, a Work Cover Certificate and the report of a MRI scan result dated 17 August 2009 and addressed to Mr Barrett were added.
19 The defendant tendered its Court Book from which a number of documents had been removed and to which, with the leave of the Court, a solicitor’s letter of instruction dated 30 October 2009 and addressed to orthopaedic surgeon, Mr O'Brien, produced at the request of the plaintiff, was added.
20 Relevantly, the defendant's Court Book included an affidavit (and exhibits) sworn on 2 June 2010 by Group Occupational Health and Safety Manager, Craig Herbert, who said that he had held this position with Godfrey Hirst Australia Pty Ltd since 1999. As is evident from the dates on which all of the affidavits were sworn, Mr Herbert's affidavit was sworn between the dates on which the plaintiff’s two affidavits, which comprise his evidence in chief, were sworn. Nevertheless, neither deponent appears to have taken the opportunity to directly address the matters raised in the other party's affidavit material. Where appropriate I will say more about how this impacted on my findings.
The plaintiff's background and earlier work-related injury claims
21 The plaintiff was born in Macedonia where he was educated to year 11 level. He is 61 years of age and married with one adult son who is also married and has his own child. After migrating to Australia in 1970 and before commencing his employment with the defendant the plaintiff said that he worked as a labourer.
22 As I have already mentioned, the plaintiff chose to give his evidence with the assistance of an interpreter. I accept, as he said in re-examination, that contrary to the indication given in a questionnaire document exhibited to Mr Herbert's affidavit, English is not the plaintiff's first language and that over the long period he worked with the defendant he probably was able to communicate with other employees in the Macedonian language and at times, in Serbian and Croatian, languages he also speaks.
23 The psychologist, Mr Radley who appears to have conducted the vocational assessment interview on 27 August 2009 without the assistance of an interpreter relied on his impressions during this interview and the plaintiff's verbal report when he concluded that the plaintiff spoken English was limited and that his reading and writing skills were "poor to non-existent".
24 However, whilst there may be limitations on the extent to which the plaintiff speaks, reads and writes in English (whether or not these skills were regularly employed by him at work), I was not satisfied that he gave a fair representation of his English-language skills when he asserted during re- examination that he could not read (or read "..more than half of that I wouldn't be able to understand") the questionnaire document to which he was taken during cross-examination.[1] In reaching this conclusion, I allowed for the fact that at hearing on many occasions he responded in English, that when taken to the questionnaire he appeared to both read and understand parts of this document, that when questioned about matters in the document at times he responded in English and, that before and since this injury he appears to have engaged with treating and some examining doctors (for instance general physician, Mr Brearley said that "[h]e speaks English well”) without the assistance of an interpreter.
[1] Transcript, page 96.22.
25 In paragraph 6 of his first affidavit,(as amended) the plaintiff described his employment duties in the following words:
“6. I was required to use the forklift to collect rolls of carpet from shelving or the storage shed and load the roles of carpet onto a machine. With a fellow worker I then placed the end of the new carpet roll next to the end of the carpet already on the machine and guided an automatic sewing machine along rollers to join the two ends together. As part of my duties I had to clean the filter on the machine. The filter was cleaned daily but when excessive fluff is produced I had to clean the filter 4-5 times a day. To reach the filter on the printing machine I had to climb a steel ladder which was attached to the wall.”
26 Both in his affidavit and in his evidence the plaintiff said that he worked full- time. During cross-examination he also said that despite many attendances on doctors for ongoing treatment of symptoms in his right shoulder and upper spine, in the year preceding the injury he worked 12-hour shifts without any restriction on his work capacity or on his social and domestic activities.
27 In amongst the progress notes from the OccWest clinic (the clinic to which I was told the defendant sent employees for treatment), added to his Court Book by the plaintiff on the first hearing date, there were entries made by a number of doctors who treated the plaintiff between 23 November 2000 and 22 January 2003. Amongst other things, these entries help confirm the plaintiff's evidence in his first affidavit that in the past he was treated and lodged claims for work-related back and shoulder injuries.
28 For instance, the plaintiff said that after pulling large bags of lint and without time off work, on 29 November 2000 he lodged a claim for injury to his back and shoulder. The progress notes show that between 23 November 2000 and 6 February 2001 with physiotherapy and treatment the pain reported in the plaintiff's right shoulder and upper back resolved and, consistent with a report that the plaintiff was "happy to stay on normal duty" none of the evidence contradicted his claim that this injury had not led to time off work.
29 On 19 January 2002 and again apparently without having taken time off work, the plaintiff lodged a further claim for injury to his back and shoulder after he lifted a filter on 26 September 2001. In this regard, progress notes made by two doctors from the clinic reveal that between 27 September 2001 and 22 January 2003, the plaintiff was treated for right upper back and thoracic back pain. Over a period of time his treatment consisted of physiotherapy, anti-inflammatory medication, some osteopathy and cortisone injections, the latter administered by a rheumatologist above and below the plaintiff's right scapula.
30 I note that a bone scan on 19 June 2002 (apparently ordered by the plaintiff’s own general practitioner, Dr Irani) demonstrated, amongst other things, an increased uptake at the T7 and T9 level and tenderness over his mid-thoracic spine area. This prompted a doctor from the clinic to obtain an MRI of the plaintiff's thoracolumbar spine. The findings reported on 28 June 2002 relevantly indicated that:
“No disc herniation or disc abnormality is identified in the thoracic spine.
Impression:1. Incidental instraosseous haemangioma in the central aspect of T6 vertebral
body. No additional significant bone marrow abnormality.
2. Degenerative disc disease in the mid and lower lumbar spine with a small to
moderate broadbased posterior central disc protrusion at the lumbosacral
junction with likey impingement on the left S1 nerve root in the spinal canaland the exiting left L5nerve root in the neural foramen.
3. Moderately prominent anterior marginal osteophytes are noted in the mid
thoracic spine on the right side.”
31 Accordingly, this study provided objective evidence of degenerative disease in the plaintiff’s mid and lower lumbar spine which he claimed was not symptomatic prior to the incident in June 2003.
32 Nevertheless, on 3 July 2002 another doctor at the clinic examined the plaintiff at which time he recorded, amongst other things, complaint of pain "located
just to right of spine extending from mid-thoracic region to lower lumbar spine
region...." During cross-examination the plaintiff denied the accuracy of this note and a later entry on 25 September 2002, where a different doctor reported the plaintiff's situation was the same and "if anything a little worse". ) The sequence of responses to cross-examination about the group of progress notes of which these entries were part left me with the strong impression that the plaintiff’s denials were probably based on an assumption that any direct or indirect reference in these notes to his lower back prior to 23 June 2003 would have adversely affected this leave application.
33 This impression was reinforced by the history summarised in two of the earlier specialist reports. The first was obtained at the request of the insurer from orthopaedic specialist, Ms McKenzie on 6 April 2004, some weeks before the plaintiff's treating general practitioner Dr Miller, suggested that the plaintiff trial eight hours per day in light duties. In her report, amongst other things, Ms McKenzie recorded two workplace incidents in 2000 and 2001 respectively, following which the plaintiff said he suffered low back pain, although with conservative treatment in each instance this pain settled within some months.
34 In her examination Ms McKenzie only appears to have viewed MRI film and reports obtained in 2003 and 2004. In any event she clearly linked the incident in 2000, that is, the incident when the plaintiff said he pulled a heavy bag to injury to the plaintiff's lumbar spine when she described this earlier incident as:
"2. ... the significant contributing factor to the aggravation of the degenerative changes affecting the lumbar level of the spine. The incident of 23 June 2003 also acted to aggravate the pre existing degenerative changes."
35 Subsequently, in his letter addressed to Dr Miller dated 16 November 2004, treating muscular-skeletal and pain management specialist Dr Vivian, who examined the plaintiff on 15 November 2004 said, amongst other things, that:
"The right sided thoracic pain has been there all along: he has also had that pain in the past. He has had low back pain since 200 [sic]. The first time he was shifting a heavy bag (80 kg): he had to twist it: he felt low back pain. He did not have leg pain. He was sore for 7 months. He did not miss work. He recovered say 85%. In 2001 he was lifting a filter weighing quite a lot. He felt pain in both areas - more upper back. He was not off work and it eased over the next 6 months. He thinks that the pain has only been present since the last attack."
36 As it turns out, none of the evidence contradicted the plaintiff's claim that despite the pain he reported, with conservative treatment it had not been necessary to rely on the certificates mentioned by doctors in some of the clinic's progress notes and that he continued with his normal duties without losing time from work. Had the defendant sought to contest the assertion that the plaintiff lost no time from work, this could have been, but was not addressed in Mr Herbert's affidavit or other affidavit evidence.
37 In keeping with his Counsel's submission I accept as likely that, at least in the two to three years prior to 23 June 2003, the main focus of the plaintiff's complaints, his treatment and the medical investigations were on symptoms reported in respect to his upper and thoracic spine, not the plaintiff’s lower spine. Moreover, where these were reported, the doctors' clinical findings following examination of the plaintiff's lower back were normal. Importantly, until the incident on 23 June 2003 no record was made of pain radiating into or down the plaintiff's thigh or legs or of paraesthesia. All of these matters provide the context in which I have interpreted Dr Miller's progress notes on 23 June 2003 that previous low back episodes had never involved the plaintiff's legs.
The injury and treatment received
38 In the circumstances already summarised the plaintiff alleged that on Monday 23 June 2003 he jolted his hip and back after he fell and landed awkwardly whilst cleaning a filter. According to the plaintiff, he had initially experienced pain mostly in his right hip and thigh, although later he felt pain in the left side of his low back and into his left leg, the latter becoming more severe over the next few days.
39 When on the same date he was examined at the OccWest clinic, a company doctor, Dr Miller noted, amongst other things:
"... sudden onset R hip pain, denies low back pain, states pain radiated to R thigh and even down R leg, paraesthesia R thigh, no similar previous episodes, previous low back episodes have never involved the legs ..."
40 This doctor prescribed Panadeine Forte, bed rest and gave the plaintiff time off work.
41 An x-ray of the plaintiff's right hip the next day excluded any fracture, bone, joint or soft tissue abnormality in the right hip. In any event, by this stage with medication and bed rest, the plaintiff reported improvement in his condition, such that the doctor recorded: "no paraesthesia, but still some leg radiation, still sore to weight bear too much... [sic]"). He arranged to review the plaintiff's condition the following Thursday on which date the doctor found, amongst other things, less local tenderness, a good range of movement in the plaintiff's back with some mild discomfort in his left lower back. These findings no doubt helped satisfy this doctor that the plaintiff was fit the next day for two hours of alternative and restricted duties, increasing to four hours on Monday and Tuesday for the following week and if by then the plaintiff’s condition was not settled, the doctor foreshadowed a referral for physiotherapy treatment.
42 With reported worsening of left leg sciatica at night, Dr Miller arranged for an MRI of the plaintiff's lumbar spine. On 5 September 2003 the radiologist reported that:
"…There is preservation of normal vertebral body alignment and height. Multi level degenerative disc disease with desiccation of the lower four lumbar discs is noted. At L5-S1 there is reduced disc height associated with a prominent broad based posterior disc bulge and central disc protrusion. Reactive bone marrow changes in the vertebral end plates are associated with small marginal endplate osteophytes. In addition, there is bilateral facet joint degeneration with hypertrophic osteophyte formation, and these changes combine to produce severe bilateral L5 foraminal narrowing, and compression of the exiting L5 nerves within the foraminae. This appearance is similar to that previously described.
At L4-5 there is slight reduction in disc height and a broad based posterior disc bulge, with bilateral facet joint degeneration, resulting in severe bilateral L4 foraminal narrowing. This is also similar in appearance compared to the previous study.
At the remaining disc levels displayed there is evidence of a left paracentral L1-2 disc extrusion with superior extension of the disc material indenting the thecal sac. All other disc levels show no significant abnormality, with no evidence of foraminal narrowing or nerve root compression.
There is no spinal canal stenosis. The conus medullaris and nerve roots of the cauda equina appear normal. The paravertebral soft tissue are also normal."
43 Having compared these findings with the previous MRI study in June 2002, the radiologist concluded that the appearance of advanced degenerative disc and facet joint disease (which resulted in considerable narrowing of the L4 and L5 foraminae bilaterally) had not changed significantly and that the left paracentral L1-2 disc extrusion was a new development.
44 Accordingly, whilst the appearance in the lumbosacral region of the plaintiff's spine on further MRI examination was said not to have changed significantly between July 2002 and September 2003, there was evidence of the development further up the lumbar spine of another disc extrusion.
45 On 19 March 2004 and at the request of a doctor from the clinic, a further MRI examination of the plaintiff's mid-thoracic spine led the same radiologist to conclude that:
"Contrary to the previous report, vertebral body haemangioma is located in the
T7 vertebral body.
There is spondylitic anterior endplate osteophyte formation at T6-7, T7-8 and
T8-9.
There is fusion of the T4 and T5 spinous processes. No other findings."
46 According to the progress notes, this MRI scan was intended to exclude other pathology having since developed in this region. However, by 20 April 2004, a doctor at the clinic recorded that the plaintiff’s symptoms were more or less the same, that he was having his physiotherapy weekly, walking daily and that the plaintiff was ready to trial eight hours a day in the same duties. I took this to be a reference to the light duties performed post-injury.
47 In summary then, between the date of the injury and mid-2004, the regular entries in the progress notes confirm that other than periods of reported worsening of his symptoms, with conservative treatment (that is physiotherapy, hydrotherapy, limited trials of painkilling medication because the plaintiff persistently declined to use analgesia and various anti- inflammatory medications which he reported were either unhelpful or caused side-effects and, subject to some reported morning drowsiness various medications to help him sleep, participation in functional restoration and gym programs and the passage of time), notwithstanding a gradual increase in the light duties performed by him, the plaintiff's lower back condition improved sufficiently for him to return to full-time light duties.
48 As his letter dated 16 November 2004 also indicated, Dr Vivian recommended a series of diagnostic spinal injections to assess (and if possible treat) the source of ongoing complaints of pain in the plaintiff's right mid-to-low thoracic spine and in his low back spreading down the side of his left leg as far as the knee. Nevertheless, the clinic's progress notes record that this course was not pursued because, according to the plaintiff's then treating doctor, the plaintiff was reluctant to explore this option unless there was further deterioration in his condition.
49 As he acknowledged through his evidence, in accordance with a Return To Work Plan, from June 2004 until he was made redundant on 23 March 2007, the plaintiff worked eight hours per day, five days per week performing modified duties in the defendant's printing department.
50 Nevertheless, both in his first affidavit and in the responses given during cross-examination, the plaintiff appeared to indicate that his actual role and the work performed by him was somewhat less demanding than that described in the Return To Work Plan. For instance, in paragraph 11 of his first affidavit the plaintiff said:
"11. ...my work consisted of acting as a spare man helping other workers. There were 3 of us doing the job that before the injury was performed by 2. If one of them had an RDO I still could not fill in for him as I could not do the heavy work."
51 Moreover, in response to various suggestions during cross-examination to the effect that he coped with his job through 2004, 2005, 2006 and right up until his redundancy and that he was feeling okay, was coping and did well at work for about two and a half years, the plaintiff said :
"I can tell you that I was able to last on the job because there was [sic] other people doing my job. I was just there as a figure, that was a job that’s made up. In my position there was an extra person." and "…that's because I wasn't doing anything. The only thing, I was there.”[2]
[2] Transcript, page 71.25-29 and 74.29.
52 These comments notwithstanding, I have proceeded on the basis that it is likely that, between mid-2004 and the redundancy and subject to the restrictions imposed and Certificates of Capacity issued from time to time, the plaintiff probably performed duties consistent with those described in the Return To Work Plan, upon which he said both he and his treating doctor had agreed.
53 Without setting out the content of this document in full, these duties "predominantly" required "self-paced" driving of a forklift, ("Cane has several other co-workers in this area to assist him if required ...") and working in what was called the "zimmer area". The latter appears to have required the plaintiff to perform inspection and quality control duties, operate control panels and enter bookings onto a computer at cropping and inspection stations and to adjust a brush guard. Relevantly, the plan required that the plaintiff work in the zimmer area "... with one co-worker (as a minimum ie if there are more
staff available, Cane is provided with extra assistance) ..."
54 As is evident from the document, the Return To Work Plan very specifically limited all of the plaintiff's activities and imposed the following restrictions:
“1. Avoid twisting 2. Avoid any bending 3. Limit periods of sustained sitting or standing to less than 30 minutes. 4. Limit periods of forklift driving to less than 20 minutes. 5. Limits shifts in zimmer area to 2 shifts per week only. 6. An additional worker MUST be provided in the zimmer area to share the workload. The additional worker must assist Cane with adjustment of blade and to oil machine (tasks requiring bending). 7. Report any increases in pain immediately to Supervisor. 8. Take a 5 minute rest break after every 30 minutes of work. It is recommended that this time be spent sitting down. 9. Avoid cleaning filters.”
55 The only Certificate of Capacity in the materials, for which the plaintiff obtained leave to include in his Court Book, is that provided by Dr Henderson from the clinic covering the period 1 December 2006 to 26 January 2007. This Certificate restricted the plaintiff’s lifting capacity to a maximum of 10 kilograms. As such, in my view this certificate was probably intended to supplement the more general and ongoing restrictions applied by the Return To Work Plan.
56 Dr Henderson’s report submitted on 9 October 2009 summarises, amongst other things, the progress notes from the clinic between the date of the reported injury and 7 March 2007 when the plaintiff last attended him for treatment at the clinic. Apart from a diagnosis of "chronic thoracic and lumbar spine pain in the context of degenerative arthritis of the spine" this doctor obviously accepted that the incident described by the plaintiff had made a significant contribution to his spinal injury, that the consequences of this injury would persist for the foreseeable future, that it was likely that his injury would continue to cause pain and restriction in his social, domestic recreational and employment activities and that gradual and progressive further deterioration was also likely.
57 Whilst this did not specifically address matters relevant to this leave application, I note that the defendant’s Court Book also contained a report dated 1 August 2007 following an Impairment Assessment by orthopaedic surgeon, Mr Battlay, in which he opined that only 50% of the long-standing degenerative changes in and permanent impairment of the plaintiff’s thoracolumbar back related to the nature of his work-related injury on 23 June 2003. Relevantly, when Mr Battlay gave this opinion, he appeared to have wrongly understood that the earlier back injury reported in 2000 and 2001 had not required medical attention.
The pain and suffering consequences
58 These were updated in paragraphs 3, 4, 5, 6 and 7 of the plaintiff's supplementary affidavit as follows:
“3. I continue to suffer pain in my low back. The pain frequently radiates down into my buttocks and down my left leg to my knee, and also at times down to my foot. Occasionally I get similar but lesser pain in the right leg. I also continue to suffer pain from time to time in the mid back region. 4. If I sit or stand for too long the pain increases and I have to regularly change my position to ease the pain. Bending or twisting my back is the most common cause of pain. 5. I continue to attend upon my general practitioner Dr R Irani for treatment. I try to take as little medication as possible. I am prescribed Tramal and I take 3 tablets per day but only on days when my pain is severe. On most days, I take 2 tablets of Neurofen [sic] once or twice per day. I apply Voltaren gel to my back most days. I find that the medication and Voltaren gel do help to ease my pain.” 6. My back pain continues to affect my day to day activities such as putting on my socks and shoes. I can drive a car with an automatic transmission, but if I drive for long periods, my back becomes stiff and sore. My sleep is disturbed and I take sleeping tablets. I usually wake up with pain and stiffness in my back, and I often go for a walk in the morning to ease the stiffness. I still have difficulty attending soccer matches and other social events because of the need to sit or stand to ease pain. 7. I do as much as I can around the house. I mow the lawn and do some trimming in the garden on days that I am feeling better. As my wife is working, I often go shopping on my own to purchase a few small items such as milk and bread and the like. I leave the heavy household work to my wife and my son but I manage some light housework by having a break when I need it.”
59 The plaintiff was cross-examined about his daily domestic and social activities. For instance, when pressed, he acknowledged that his home garden (some of which was visible in the surveillance film shown later in the proceeding) was more extensive than, as he first said, "only lawn and a couple of trees".[3] Apparently the garden is well cared for with trees trimmed by hand clippers, a lawn mowed with a petrol driven push mower and edges kept in check with a whipper snipper. Whilst the plaintiff attributed most of the maintenance of the garden and virtually all of the domestic duties to his wife, who incidentally holds down a full-time job, he did however concede that when he felt better he worked in the garden which at times also involved using a broom and shovel.
[3] Transcript, page 77
60 In re-examination the plaintiff explained that he tried to mow his lawn even though he suffered pain and stiffness in his lower back after operating the lawnmower. However, he also said that whilst he found clipping bushes very difficult this was something his wife performed because she was unhappy with the job he did. Relevantly, his wife has not sworn an affidavit corroborating any of these matters.
61 As to other activities the plaintiff said that during the soccer season on weekends he attended most of the 11 home games with his brother and friends. Moreover, he agreed that he did a lot of walking in the mornings, that he spent 30 to 45 minutes on his feet, that he was very fit man, that on the advice of his physiotherapist he kept up his walking as much as possible and that in the past when WorkCover paid for this, he did gym exercises as prescribed by his doctor as well as hydrotherapy under the supervision of a physiotherapist.
62 During cross-examination the plaintiff was challenged after he claimed that he had stopped taking painkilling medication very soon after the incident because this medication affected him particularly at work. However, at one stage he qualified this response by saying that he would have taken Nurofen, a non- prescription painkiller, when he went home from work.
63 Notably, the progress notes consistently record that the plaintiff reported having no problems at work. Moreover, I note that in January and March 2007 Dr Henderson recorded: ”Nil meds at present. Resistant to taking medication - nothing has really helped in the past” and after the final consultation, ”[n]il meds at present other than occasional paracetamol."
64 This evidence is to be contrasted with the record made two and a half years later in September 2009 by Mr Radley in the Vocational Assessment Report where he reported that the plaintiff currently takes:
"…Tramal 50mg pain medication (3 tablets per day), Temaze 10mg sleep medication (1 tablet most nights), Nurofen anti-inflammatory medication (1-2 tablets when required) and he uses Voltaren anti-inflammatory cream."
65 The plaintiff was not specifically cross-examined about Mr Radley's record, although during re-examination he sought to clarify the evidence concerning his use of medication by saying that he ceased taking Vioxx (an anti- inflammatory medication) and other medication because it caused problems with his stomach, that he tried taking Panadol and Nurofen, that when he discovered that this medication affected his stomach he started taking Nurofen, (even whilst he was still working) and that currently he takes Tramal usually when he has more pain. Otherwise, the plaintiff said that he takes Nurofen and massages "in" Voltaren cream and he usually wears a belt.[4]
[4] Transcript, page 95
66 Relevantly, neither of the doctors treating him after the plaintiff ceased his employment, Mr Barrett and Dr Irani, mention medication, much less having prescribed the painkiller, Tramal.
67 Accordingly, whether or not from shortly after the incident, intolerance to prescribed medication caused the plaintiff to avoid taking painkillers or other medication, it remains the case that at least from the time he resumed light duties on a full-time basis until he ceased working in March 2007 and subject to reportedly unsuccessful attempts to take other medication such as morphine in late 2006, it is probable that the plaintiff continued performing the duties in accordance with the Return To Work Plan without regularly taking painkilling or anti-inflammatory medication.
68 In these circumstances, I have reservations about the extent to which the plaintiff currently controls or needs to control injury related pain with prescribed or other painkilling medication.
The redundancy
69 Of his redundancy, the plaintiff said in his first affidavit that when the defendant’s factory closed down on 23 March 2007, he was given a package. In paragraphs 13 and 14 of this affidavit he also said that he had not felt capable of finding another job:
"13. …because of the low back and leg pain and restrictions in my ability to perform labouring type duties including bending, lifting or twisting, which is the only work for which I am qualified. I was able to cope with the very light duties offered to me by my employer in the final years, but had been informed in the return to work plans that the duties were offered for the purposes of rehabilitation and should not be considered a new contract of employment. I believe that no other employer would provide a job with so many restrictions. 14. Since I ceased work with Feltex no attempts have been made by the WorkCover Insurer to offer retraining or rehabilitation. I believe that I have made all reasonable attempts to participate in my rehabilitation."
70 The foundation for believing that the injury-related impairment of his thoracolumbar spine deprived the plaintiff of any physical earning capacity after he received a redundancy package was never fully explained. This circumstance was not tested by, for instance, seeking rehabilitation beyond that provided under successive Return to Work Plans or by seeking retraining or any other employment. Instead, the plaintiff sought to persuade the Court through other evidence, consisting in the main of medical and vocational material, that he had suffered a total and permanent loss of his work capacity and that, should I find a residual capacity for light duties, this would not result in his earning more than 60% of his pre-injury earnings as determined in accordance with ss134AB(38)(f) of the Act.
71 Essentially, through his affidavit and the exhibits, Mr Herbert sought to explain from the defendant's point of view the circumstances relating to the plaintiff's redundancy.
72 In summary he said that in 2006 the defendant company was placed into liquidation. However in November 2006 a new company, Feltex Carpet Pty Ltd was formed as a subsidiary of Godfrey Hirst Australia Pty Ltd. All of the defendant's employees were transferred to the new company.
73 In early 2007 all 140 employees were invited to apply for voluntary redundancy, although there were alternative positions available for which 17 employees expressed a preference. As a result they received and accepted new roles in the company’s tufting or beaming departments at its factory in Braybrook.
74 In his affidavit Mr Herbert also explained that the defendant conducted an interview process in which an employee’s interest in alternative positions was discussed. On reading his affidavit to which he also exhibited a copy of the plaintiff’s signed offer of 13 February 2007 to be made redundant, as well as the questionnaire to which I have already made reference (it is a document carrying the title "DETAILS (to be confirmed during interview)") I was not satisfied that Mr Herbert was present at or participated in the plaintiff’s interview. Although whilst this was never put directly to the plaintiff, from the answers given by him at hearing I was satisfied that, as alleged by the defendant, he was interviewed.
75 Relevantly, through Mr Herbert's affidavit and the exhibits, which also included documents analysing the tasks for positions either as a tufting machine operator or beaming operator, the defendant sought to establish that during his interview the plaintiff had indicated that he did not seek an alternative position and, that this was so notwithstanding the defendant’s belief that the roles in each of the departments mentioned were "relatively light" and comprised duties that "were within the plaintiff certified capacity at the time he
ceased work".
76 I note that apart from the Certificate of Capacity for modified duties to which I have referred, signed by a doctor from the clinic, upon whom the plaintiff attended on numerous occasions from late 2005, the only other documentary evidence concerning the plaintiff's duties and the restrictions imposed prior to the redundancy is contained in the Return To Work Plan dated 2 June 2004.
77 I think it clear from the clinic's progress notes, the Return To Work Plan added to the plaintiff's Court Book, the questionnaire and statement of service documents exhibited to the defendant's affidavit and the plaintiff's responses, particularly those given during re-examination concerning the restrictions under which he worked, that despite periods in which he reported worsening symptoms and back pain, it is likely that the plaintiff worked full-time in accordance with the requirements of the Return To Work Plan and any further restrictions imposed by any current Certificate of Capacity.
78 In any event, consistent with the matters recorded in this document when he was taken to the questionnaire in cross-examination, the plaintiff eventually acknowledged that he had been offered alternative employment, albeit employment that was not the same job and not employment that he thought he could do. This response was not altered by any further explanation offered by him during re-examination.
79 In other words, where the questionnaire recorded that he rejected both alternative employment within the Feltex factory area or areas and, if redundant, did not express interest in retraining options, as he said during cross-examination, the plaintiff did so because there was no alternative job he could do and in his view, rather than decline this he was not offered any opportunity for retraining. Indeed, when it was suggested to the plaintiff that he had wanted to retire and that the redundancy represented a good financial package, the plaintiff said:
"If they gave me the same job and I was feeling okay, I would have been working
even now if I could do the job."[5] and "No I finished because they finished me."[6][5] Transcript, page 74.22.
[6] Transcript, page 74 – 75
80 I note that Senior Counsel’s cross-examination about the financial package was in part based on Dr Henderson's progress note made on 7 March 2007, the date on which he recorded that he issued his final certificate and at which time, amongst other things, he added that:
"Feltex closes down 23rd of March – Cane with them for 25 years – should get good
package. Good result for him."
81 In cross-examination the plaintiff rejected any suggestion that he had discussed his financial package with his doctor. Whilst I am unable to determine the extent to which the plaintiff’s financial package was discussed with his doctor, this was a further occasion on which I formed the view that the plaintiff was probably very selective in his recall.
82 As I have already mentioned, in his supplementary affidavit the plaintiff failed to directly address any of the matters raised in Mr Herbert's affidavit. In any event, I consider that absent the modifications and restrictions which applied to the plaintiff's duties prior to the redundancy, the alternative employment options offered in the tufting and beaming departments to which Mr Herbert's affidavit referred were not jobs which the plaintiff had the capacity to perform post-injury.
83 I reached this conclusion largely because there is no meaningful correlation between the position descriptions provided and the restrictions under which the plaintiff was working and because without further modification, these duties were specifically rejected as appropriate duties by orthopaedic surgeon Mr O'Brien who examined the plaintiff on behalf of the defendant in December 2009.
84 Of course, then and more recently Mr O'Brien also thought that the plaintiff was physically fit to undertake appropriate modified duties and, when presented with the same Labour Market Analysis Report as that to which general surgeon Mr Brearley (who was retained by the plaintiff), had regard, of the positions described Mr O'Brien nominated both Crossing Supervisor and Gatehouse Security duties as suitable options. This was so notwithstanding the plaintiff's perception that he was totally incapacitated.
85 Furthermore, in all the circumstances described, the plaintiff did not satisfy me that in his interview he was not also asked whether he was interested in retraining options. Rather, even if the defendant was wrong in its submission that the plaintiff had decided to retire, consistent with his evidence it is likely that he declined to show interest in retraining options because by then he had made up his mind that no other employer would provide a job with the many restrictions that applied to his position with the defendant.
86 However, these matters notwithstanding, from the limited material before the Court I am unable to determine the nature or the extent of the retraining options available to the plaintiff had he expressed interest. This is an important omission because, as my discussion of the vocational material in due course reveals the plaintiff's likely inability to be retrained proved critical to the determination of this application.
Post-redundancy treatment
87 According to the plaintiff's evidence following the redundancy, he ceased attending the clinic. Thereafter he saw his general practitioner, Dr Irani. Her only report dated 9 November 2009 summarises some of the earlier and subsequent radiological material and progress notes. In this report she also noted that since his retrenchment, the plaintiff had regularly attended her for treatment, reporting: "back pains, stiffness, difficulty with sleeping ... with pain, difficulties with helping around the house etc .." and added that, after physiotherapy treatment ceased, he had reported that: "his condition has worsened constant sharp pain, worse with cold weather ...". Dr Irani diagnosed "Discogenic back pain. Degenerative disease with underlying disc
lesion."
88 Relevantly, and as it turns out in this case significantly, in addition to the diagnosis and her opinion that the plaintiff remained unfit for pre-injury duties, Dr Irani also stated that the plaintiff's complaint of ongoing "strong pain" had prompted a referral to orthopaedic surgeon, Mr Barrett, ostensibly at the request of the plaintiff's solicitor. By contrasting this with the copy of the result tendered I note that Dr Irani's report accurately summarises the conclusions reached by the radiologist following a repeat MRI scan she said was requested by Mr Barrett in August 2009. Dr Irani also purported to summarise the surgeon's response to this study, in that he felt that the plaintiff required an operative decompression in the "fairly near future".
89 The general practitioner's comments in this regard are important because whilst Mr Barrett's letter to Dr Irani dated 29 September 2008 was included in the plaintiff's Court Book, the result of the repeat and most recent MRI scan of the plaintiff's lumbar spine was not included in the plaintiff's materials until attention was drawn to its absence. Moreover, as the defendant's Senior Counsel was quick to point out, other than Dr Irani's hearsay evidence, no current and up-to-date report was available to the Court from the plaintiff's only treating orthopaedic specialist. The only other specialist medical evidence on which the plaintiff relied or could have relied was that provided by medicolegal specialists on both sides.
90 Despite the invitation to do this, I did not draw an adverse inference from the plaintiff's failure to call up-to-date opinion evidence from his treating surgeon. I formed the view that this was probably one of the many matters to which the plaintiff's solicitors failed to attend in the preparation of this case for hearing. For instance, as I have already mentioned at hearing, the plaintiff required leave to add to his Court Book amongst other documents, an up-to-date affidavit supplementing the evidence in his first affidavit sworn in September 2008.
91 I also took into account further matters as follows; firstly, the result of the 2009 MRI scan was available to both Dr Irani and the defendant's medico- legal orthopaedic specialist, Mr O'Brien, whose findings I will summarise shortly. Secondly, I was informed, albeit by Counsel, that the defendant had previously subpoenaed Mr Barrett's clinical notes without seeking to cross- examine him. Lastly, I allowed for the fact that the plaintiff's Court Book included Mr Barrett's letter to the treating general practitioner in September 2008 which, because of the likely absence of radiological material preceding the injury or succeeding the MRI scan on 4 September 2003 and the very limited and in part incorrect history on which he probably relied, was not as helpful to the plaintiff’s case as it might otherwise have been.
92 For instance, when reporting to the plaintiff's general practitioner, Mr Barrett appears to have acted under the mistaken belief that the plaintiff made his first complaint of lower back pain after this incident at work. He also told her that the plaintiff gave no past history of back pain or spinal injuries. These are reports that have not assisted the plaintiff in establishing his credibility.
93 Of course, when he examined the plaintiff, had he been asked to turn his mind to issues other than diagnosis and treatment, Mr Barrett probably understood from the MRI study obtained in September 2003 (a few months after the incident) that at least some if not all of the changes he thought represented degenerative changes predated the incident. However, I think it unlikely that at the time, in addition to the film, Mr Barrett also considered the radiologist's report relating to the study. Had he done so, I expect that he would have also noted that there was a previous MRI study of the thoracolumbar spine in June 2002 with which these appearances were compared by the radiologist, demonstrating as it did pre-existing degenerative changes, including disc disruption and protrusion at the L5-S1 level with what the radiologist thought was likely impingement on the left S1 nerve root in the spinal canal and the exiting left L5 nerve root in the neural foramen.
94 In summary, so far as the plaintiff is concerned, the value of Mr Barrett's letter arises from his conclusion that apart from degenerative changes the plaintiff had serious and significant lumbar disc ruptures which rendered him unfit to return to any form of work, even light work and that with multiple discs involved no operative treatment was likely to be helpful. In any event, as my discussion of Mr O'Brien's findings in due course demonstrate he took issue with the description of the degenerative changes as "disc ruptures". This conclusion and his belief that surgery was not indicated were generally in keeping with the findings made by the other medicolegal specialists.
95 In any event, consistent with Dr Irani's reportof the MRI result the radiologist concluded that the film from this study indicated:
"1. Moderate generalised lumbar disc and facet joint degenerative changes 2. Moderate/marked central canal stenosis L4/5 with moderate stenosis at L3/4. 3. No high-grade foraminal compromise in the lumbar region but there are mild/moderate changes in the mid and lower portion of the lumbar spine at L4 and L5 levels on both sides."
96 Relevantly the report of the scan result confirms that when he undertook this study the radiologist's attention had been directed to the injury on 23 June 2003, the MRI scan in September 2003 and the plaintiff's complaint of continuing "left thigh region pain". By comparing the findings in the more recent study with those obtained in 2003 it is evident that the new development reported in 2003 at the L1-2 level has probably resolved to the extent that radiologically this is now described as showing a minor degree of disc protrusion.
97 In any event, if, as Dr Irani said, as a consequence of this study in 2009 the treating orthopaedic surgeon thought that the plaintiff required operative decompression in the fairly near future and this information was conveyed to him, the plaintiff has not chosen this course.
98 Indeed, if the surveillance film shown at hearing fairly represents the level of the plaintiff's general activities and lifestyle in 2009 and 2010, it is unlikely that his depiction of his lower back pain as "severe" and/or "constant", for general surgeon, Mr Brearley, orthopaedic surgeons Mr Miller and Mr King, occupational health specialist Dr Castle (all of whom examined the plaintiff at the request of his solicitors) and orthopaedic surgeon Mr O'Brien was a proper representation of the plaintiff's circumstances.
99 Accordingly, quite apart from any difference in opinion as to what might properly be described as a "disc rupture", for the purpose of determining this application, I formed the view that, of the specialists who treated or examined the plaintiff since the redundancy, Mr O'Brien, who incidentally reviewed the plaintiff on three occasions, was probably better placed to and did provide a more informative opinion for the purpose of assessing the plaintiff's current physical capacity for employment and the likely consequences of injury- related impairment of his spine.
The medico-legal evidence
100 As I have already said, the plaintiff also relied on the assessments made by the specialists I have named who examined him and reported to his solicitors between 25 February 2009 and 30 July 2009. Without re-examining the plaintiff Mr Brearley provided a supplementary report dated 10 June 2010 in which, he considered and rejected as unsuitable a number of positions other than the position of School Crossing Supervisor. The options to which he had regard were contained in the Labour Market Analysis Report already mentioned. This was submitted to the defendant on 23 April 2009 by an Occupational Rehabilitation Consultant from Healthe Work.
101 Each of the plaintiff's specialists appear to have had regard to a selection, but not necessarily the same selection of radiological and medical reports. No one appears to have had a copy of the last Return To Work Plan or any certificate of capacity. For instance, Mr Miller, and in view of his report this probably also applied to Mr Brearley, had none of the pre-injury radiological reports and Mr King had some of these but not the result of the MRI scan obtained in mid-2002. This is to be contrasted with Dr Castle who appears to have had the benefit of all of the radiological results obtained between 2001 and 2004. However, whilst similar criticism may be made of of the extent of the information available to the defendant's specialists, including orthopaedic specialist Ms McKenzie, none of the plaintiff’s specialists have had the same opportunity as Mr O'Brien did in December 2009 to compare and comment on the MRI study obtained by Mr Barrett in August 2009.
102 For instance, when Mr O'Brien reviewed this study, amongst other things he noted that it demonstrated:
"…generalized lumbar disc degenerative change and loss of disc signal, particularly at the L4/5 level where there was disc space narrowing associated with facet degeneration and reduction of moderate to marked canal stenosis with some foraminal stenosis but no nerve root compromise."
103 As I have already mentioned, in this report he also challenged Mr Barrett's description of the changes seen as disc ruptures, adding:
"... I would not suggest that the degenerative change represents a serious disease, an aging [sic] process which has been aggravated by physical factors. The condition is not expected to be progressive and indeed it is noted that there certainly has been no deterioration in physical signs since my initial examination. However as previously reported I considered that employment had been a significant aggravating factor to pre-existing lumbar spondylosis. Given the history I would suggest that this continues.
I do not however consider that employment is responsible for increasing symptoms or progression of any underlying degenerative disease.
The clinical condition in my opinion is stable. I can see no clinical evidence for progression of any lumbar pathology. Thus in my opinion treatment should remain conservative and confined to pain management with some analgesic medication. The patient indeed would be well advised to continue with his own exercise program in an attempt to maintain reasonable lumbar mobility. In fact I consider that there is no indication for surgery and after confirming the presence of degenerative changes in the lumbar spine, the recent MRI has not influenced the conservative course of ongoing treatment."
104 In determining the extent to which I was able to rely on the views expressed in the reports provided by the plaintiff's specialists, I have also allowed for some inconsistencies in the histories and information on which they no doubt relied.
105 For example, Mr Miller probably wrongly believed that by reason of pre- existing degenerative disease in the plaintiff's lumbar spine, rendered symptomatic and aggravated by the incident in June 2003, the plaintiff's loss of capacity for work and his loss of mobility were greater than the evidence indicated. This is because, whilst Mr Miller considered the plaintiff unfit for his pre-injury work, an opinion shared by all the specialists including Dr Irani, he wrongly believed that the attempt to return to work had failed.
106 Furthermore, based on the surveillance film and the responses given by the plaintiff during cross-examination it is evident that he regularly walks four to four and half kilometres, he estimated three to four mornings a week, and on some days runs, again on his estimate no more than two kilometres, the latter if he feels good.
107 Save for when the plaintiff appeared to demonstrate an awareness that he was being filmed (something he denied) which also coincided with some alteration in his movements, the surveillance film taken on 24 and 25 March 2009, 26 May and 1 June 2009, 6 and 7 September 2009, 30 November 2009 and on 5 and 19 May 2010 (was consistent with a good level of activity over sustained periods including shopping trips, driving, brisk walking, moving into and out of and bending into different vehicles without restriction and running, for instance, across the road and down the street.
108 If am wrong in my impression that at times when subject to surveillance the plaintiff exaggerated his physical limitations, I nevertheless formed the view that the film did as the defendant submitted, depict a fit man with a much better level of mobility than he had probably represented to the specialists including the psychologist who provided the vocational assessment reports.
109 Of course, the film depicts limited periods of activity and it may be that, as the plaintiff said, due to his back condition he had good and bad days. Nevertheless, as I have already mentioned during the period over which the film was obtained the plaintiff was examined by his specialists and by Mr O'Brien, all of whom were given to understand that the plaintiff suffered severe and/or constant lower back pain.
110 An incomplete copy of Mr King's report was tendered as part of the plaintiff’s Court Book. In providing his report, Mr King appears to have believed that following the redundancy the plaintiff sought but had been unable to "find any suitable light alternative job. He also appears to have been given to understand that the plaintiff; "continued to be troubled by constant low back
pain radiating to both buttocks and thighs, the symptoms fluctuating in intensity but never settling with periodic severe flare-ups about once a month"
and that the plaintiff felt that his backache may have been slowly deteriorating.
111 In all, Mr King appears to have accepted that the plaintiff's condition had stabilised, that there were some permanent restrictions on his social and domestic activities and on his capacity for work, although he did not consider that residual problems with his back would prevent the plaintiff from going back to the light restricted duties he performed prior to the closure of the defendant's factory.
112 In late July last year occupational health and rehabilitation specialist Dr Castle, amongst other things appears to have been told that, after the plaintiff resumed working eight hours a day, he was assisted by a third person who helped him perform light duties such as supervising and stitching carpet. This doctor also appears to have understood that the plaintiff's pain level was "quite significant" but eased by medication such as Nurofen and Tramal. However, he was also given to understand that there was "never a time" when the plaintiff was without pain, that during his examination the plaintiff's pain was "nine out of 10" and that, at best, his pain was "six or seven out of 10."
113 This information and the plaintiff's other claimed restrictions appear to have helped persuade Dr Castle that as a consequence of the spinal injury suffered on 23 June 2003, the plaintiff had no current work capacity and that combined his back problem, the severity of the pain reported and the plaintiff's limited English skills also meant that he was not capable of undertaking any retraining.
114 In July 2009, Mr Brearley diagnosed "... mechanical lumbar pain due to severe
discogenic disease of the lumbosacral spine with multilevel degenerative disc changes and facet joint changes. There is in addition to prolapse or protrusion of the L5/S1 disc on a background of a prominent disc bulge. There is severe foraminal narrowing. similar changes are present at the L 4/5
level.".
115 Mr Brearley was also left with the impression that the plaintiff suffered "constant discomfort or pain in the lower back". If accurate, this impression, his findings on examination, (that is, "Back ... marked limitation of movements
in all directions by pain. Flexion is limited to 30°, extension is to 10°. Right and left lateral flexion is to 10°. Rotation to right and left is also limited to 10°. ... ... Straight leg raising is to 30° on both sides. All deep reflexes are normal and sensation is normal in all areas. There is no muscle wasting or
weakness.") and the other restrictions to which the plaintiff referred, no doubt influenced his conclusion that as a result of the incident the plaintiff had no current work capacity and that due to his age and ongoing symptoms he was not suitable to undertake any retraining.
116 I have drawn attention to these clinical findings because, as the defendant submitted, some of these findings are at odds with, for example, Mr O'Brien's reports following examinations conducted by him on 30 November 2009 and 5 May 2010. He too was given to believe that the plaintiff suffered from constant and severe pain in the lower back and that his general activities were significantly restricted by pain. When he reviewed the plaintiff's condition on 30 November 2009, Mr O'Brien ascertained that lumbar flexion was 40° with 10° of extension and 10° of lateral flexion, although he also observed some more flexibility when the plaintiff was undressing and dressing and getting onto the examination couch. He also measured straight leg raising at 60° bilaterally and noted that the plaintiff was capable of active straight leg raising and that power, sensation and reflexes in his lower limbs were all normal.
117 Following his last examination in May 2010 Mr O'Brien made similar findings in respect to lumbar flexion extension and lateral extension, and this time he noted what he called:
"…a somewhat generalised reaction to palpitation around the lumbosacral area. The patient was capable of sitting erect on the examination couch with 90° of hip flexion and full knee extension. When supine, however, the patient resisted hip and knee flexion to 70° to the right and 60° to the left. Straight leg raising was approximately 60° bilaterally. Active straight leg raising was performed but the patient complained of some back pain. Power and reflexes in the lower limb were normal. The patient did indicate that there was some alteration to light touch in the whole of the left leg in comparison to the right. No other abnormality was noted."
Accordingly, having reviewed the plaintiff on three occasions between February 2009 and May 2010, Mr O'Brien accepted that the plaintiff was suffering from work-related symptomatic lumbar spondylosis which had resulted in chronic back and leg pain, although he also concluded, on balance I think correctly, that psychosocial factors were contributing to the plaintiff's complaints of pain and to the restrictions manifested during his medical examinations of the plaintiff. Mr Radley's suspicion that there was "some embellishment" by the plaintiff during the vocational assessment process lends some weight to this conclusion.
The compensable injury
118 In this application, there is evidence of pre-existing degenerative changes in the plaintiff's thoracolumbar spine. Despite his denials it is likely that in the years preceding this incident there were periods during which this region of his spine was symptomatic. However, for the reasons already articulated, with treatment any pain and restriction was probably limited and had not impacted on the plaintiff's earning capacity.
119 The evidence and the general medical consensus has satisfied me that the incident in June 2003 probably aggravated pre-existing spondylosis resulting in ongoing symptoms and that it probably also gave rise to the extrusion noted in the radiological material at the L1-2 level which, with the passage of time, appears to have reduced. Despite any views expressed in the past to the contrary the recent pathology does not evidence progression of the underlying degenerative disease in the plaintiff spine. The plaintiff's condition is probably stable. Moreover, the compensable injury probably resulted in additional and permanent impairment which probably continues to make a material contribution to both pain and suffering and pecuniary loss consequences, although the extent of these consequences requires careful consideration.
120 For instance, whilst there is evidence of permanent injury-related impairment of his thoracolumbar spine (that is permanent in the sense that it is likely to last into the foreseeable future) having regard to all of the evidence I could not be satisfied that any low back pain was properly described as "constant" or "severe". Moreover I could not be satisfied that injury related impairment of his thoracolumbar spine debilitated the plaintiff to the extent claimed by him or that because of this his lifestyle, domestic and social activities are as restricted as he would have the Court believe.
121 I now turn to consider the loss of earning capacity claim which the plaintiff must establish in accordance with the requirements of s134AB.
Loss of earning capacity consequence under paragraph (a) of the definition of serious injury
122 In relation to his loss of earning capacity claim, in addition to the narrative requirements of loss of any capacity under paragraphs s134AB(38)(e), (f) and (g) of the Act (as amended), the plaintiff was required to prove that at the date of hearing his loss, as measured by reference to the statutory formula, is 40 per centum or more, and, after the date of hearing, a loss of earning capacity productive of a financial loss of 40 per centum or more will continue permanently.
123 The loss of earning capacity is measured by comparing the income the plaintiff is earning or capable of earning in suitable employment at the date of hearing ("the after-injury earnings") and the income that the plaintiff was earning or was capable of earning during that part of the period within three years before and three years after the injury as most fairly reflects his earning capacity had the injury not occurred ("the without-injury earnings").
124 The income compared is gross income from personal exertion, expressed at an annual rate.
125 A statement of calculation of the plaintiff's loss of earning capacity was not submitted to the Court until after the hearing had commenced. The plaintiff relied on this statement and paragraphs 19 to 22 inclusive of his first affidavit in which, amongst other things, he said that but for his injury-related impairment he had intended to work until normal retirement age. He now believes that he is permanently incapacitated for suitable employment. The plaintiff gave his gross annual income from personal exertion for the three years before the injury as, $37,037 in 2001, $36,020 in 2002 and $42,753 in 2003. For the three years that followed, that is 2004, 2005 and 2006, he said that his income was $33,986, $34,833 and $37,138 respectively.
126 However, the plaintiff also relied on comparable gross earnings of two other employees supplied by the defendant. As at 30 June 2006 these employees earned $40,455 and $44,684. Essentially, I was asked to infer that these were the amounts the plaintiff was capable of earning from personal exertion had the injury not occurred and that these amounts, not the plaintiff's gross income in each of the years between 2004 and 2006 better reflect his true earning capacity in the years following the incident had the injury not occurred.
127 All of these matters including the income of the comparable employees has helped persuade me that for the purpose of s134AB(38)(f) the plaintiff's gross income as at 30 June 2003, $42,753 probably most fairly reflects his earning capacity had the injury not occurred.
128 Accordingly notwithstanding his claimed total incapacity, the plaintiff also submitted that any residual earning capacity exercised by him in suitable employment would not produce more than 60% of his without injury earnings, namely a sum of $25,652.
129 As from 1 July 2010 the following definition of "suitable employment" was substituted by the amended Act:
“suitable employment, in relation to a worker, means employment in work for which
the worker is currently suited –
(a) having regard to –
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of
capacity supplied by the worker, and(ii) the nature of the worker’s pre-injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence and
(v) any plan or document prepared as part of the return to work planning
process; and
(vi) any occupational rehabilitation services that are being, or have been,
provided to or for the worker; and
(b) regardless of whether –
(i) the work or the employment is available; and (ii) the work or the employment is of a type or nature that is generally available in the employment market.”
130 Allowing for the second reading speech, it is clear that Parliament[7] has moved to abrogate the effect of the decision in Smorgon Tube Mills v Majkic, which held that in determining what the worker was capable of earning in "suitable employment", regard was to be had to the realities of the labour market, and loss of earning capacity was to be determined having regard to work that was
"generally available in the employment market."[8]
[7] Victoria, Parliamentary Debates, Legislative Assembly, 10 December 2009, page 4625, Mr Holding, Minister for Workcover.
[8] Smorgon Tube Mills v Majkic (2008) 21 VR 193,196.
131 In this regard, it was submitted by the plaintiff (I think correctly) that in ascertaining his loss of earning capacity in the post-injury period, employment duties tailored by the defendant in the years prior to the redundancy to accommodate his impairment should not be equated with "suitable employment" in the workforce.
132 In this case, I must consider the possibility of employment following the plaintiff's injury by reference to the plaintiff's physical capacity for employment and with due regard to the various factors on which the definition of "suitable employment" elaborates. The ultimate concern is whether the plaintiff has a physical capacity for work which, if exercised, would result in him exceeding the statutory threshold of 60% of gross income earned from personal exertion.
133 As I have mentioned, the onus is on the plaintiff to establish that, after appropriate rehabilitation or retraining, injury-related impairment of his thoracolumbar spine permanently restricts employment options. The determination of this issue also takes into account, the reasonableness of his attempts, if any, to participate in rehabilitation or retraining and he must prove any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability.
134 Post-redundancy through his conduct and, in keeping with the evidence he gave at the hearing the plaintiff has not taken any steps beyond the treatment and rehabilitation provided in the nearly four years following the injury to retrain or sought to remain in the workforce. For the purpose of this application this is not the end of the enquiry.
The vocational material
135 I have already mentioned the Labour Market Analysis Report submitted by Healthework in April 2009. Relying on material mentioned but not identified in the document, this report nominated vocational options the consultant "deemed suitable" for the plaintiff as well as wage information for each position.
136 The five positions nominated, Assembly and Process Workers, Weighbridge Operator, Chauffer/driver, Crossing Supervisor and Security Officers were all classified either as light or sedentary work. The physical demands of these classifications were also explained by the attachments to the document.
137 Of course, whatever criticism may be made of the vocational options suggested in the Labour Market Analysis and of the depth of the analysis applied, the onus of proof in respect to permanent loss of earning capacity always remains with the plaintiff.
138 To this end the plaintiff relied on Mr Radley's Vocational Assessment Report submitted following an interview on 27 August 2009 and on his supplementary report dated 22 June 2010. The latter in the main provides a detailed analysis of and rejects as unsuitable each of the vocational options recommended in the Labour Market Analysis Report.
139 Mr Radley is a psychologist who said that he specialised in vocational assessments.
140 As I have already noted notwithstanding some clear deficiencies in these the plaintiff did not satisfy me that his English language skills were as impoverished as Mr Radley judged them to be.
141 The defendant was critical of, I think with good reason, Mr Radley's tendency in the vocational assessment report to express as his own, opinions he was not qualified to offer. For instance, on a number of occasions Mr Radley spoke of his "assessment" that the plaintiff had no work capacity to return to his pre-injury employment or to similar employment in any capacity.
142 Nevertheless, putting to one side the manner in which he expressed his conclusions, I formed the view that in this case, whilst there were real deficiencies in the information on which he had at first relied, the additional material to which he referred in his supplementary report probably placed Mr Radley in a much better position to provide a more balanced and better informed opinion particularly concerning the plaintiff's suitability for any occupational retraining which might enable him to exercise any residual light work capacity.
143 To start with, the material Mr Radley accessed as a preliminary to the vocational assessment was somewhat limited. Mr Radley listed only a selection of treating and medico-legal reports, the last of which was submitted by orthopaedic surgeon Mr Miller on 10 March 2009, he did not have a current certificate of capacity or any report from Dr Irani and he relied on an earlier Return To Work Plan dated 5 May 2004 a copy of which was not included in the material tendered to this Court.
144 In summary, Mr Radley's vocational assessment was informed by:
(a) the plaintiff’s subjective and arguably exaggerated reports; (b) some limited medical evidence that omitted the reports from the treating general practitioner, Dr Irani, and from Mr King neither of whom
had precluded a current physical capacity to work; and
(c) pre-redundancy information that omitted the most recent Return To Work Plan and the only Certificate of Capacity in the plaintiff's Court
Book.
145 However, Mr Radley's supplementary report was he said, sought to determine whether his opinions in the vocational assessment report were altered by the defendant’s Labour Market Analysis Report, Mr O'Brien's last medical report dated at 11 May 2010 and Mr Brearley's report dated 10 June 2010, in which Mr Brearley said that the School Crossing Supervisor option described in the Labour Market Analysis Report was a suitable job option for short periods of an hour or so in the morning and afternoon.
146 Based on all the evidence, I think it reasonable to accept that:
(a)
English is the plaintiff’s second language and that as noted by Mr Radley there are apparent limitations in his spoken English which when combined with his age and general intelligence level probably do, as Mr Radley said, preclude any formal occupational retraining;
(b) the plaintiff has no current capacity to return to his pre-injury
employment which was properly classified as heavy;
(c) his education, experience and work history probably only qualify the plaintiff for unskilled and semi-skilled occupations;
(d) his physical earning capacity is currently and probably permanently limited to light duties;
(e) to apply his skills and any residual light work capacity away from the workplace environment provided by the defendant prior to redundancy probably would require occupational retraining; (f) he probably does not have the academic skills or general intelligence to cope with a TAFE course or any other occupational retraining, although I was not satisfied that his physical limitations were as great an obstacle to retraining as Mr Radley believed; (g) as Mr Radley's occupational search indicated there are probably no alternative full-time or part-time occupations for which with his existing
skills the plaintiff has a current capacity; and
(h) for the reasons very fully and persuasively articulated in Mr Radley's report it is unlikely that any of the job options mentioned in the Labour
Market Analysis Report, (nearly all of which were considered and
rejected by Mr O'Brien and Mr Brearley), represent suitable
employment for this plaintiff.
147 Having regard to these matters if I accept, as I do, that notwithstanding any residual light work capacity, the plaintiff is a person who is probably unable to undergo relevant occupational retraining, for the purpose of this application plaintiff has established an inability to earn more than 60% of his without injury earnings.
148 Accordingly, notwithstanding a likely residual light work capacity the plaintiff has proved an inability to be retrained; he has satisfied me that he has a permanent loss of capacity of 40% or more (s134AB(38)(i) and (ii)) and, that when judged by comparison with other cases in the range of possible losses of body function, the loss of earning capacity consequence flowing from the aggravation injury is probably permanent and is fairly described as being at least very considerable.
Orders 149 In these circumstances, I propose to make an order granting leave to the plaintiff to commence proceedings against the defendant in respect of pain and suffering and pecuniary loss consequences of the aggravation injury to his thoracolumbar spine. 150 I will hear from the parties on the making of appropriate orders.
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