Vella v S and a Lando Pty Ltd (t/a Grand Car Wash)
[2012] VCC 1249
•4 September 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-06247
| DEREK LEE VELLA | Plaintiff |
| v | |
| S & A LANDO PTY LTD (Trading as ‘GRAND CAR WASH’) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2012 | |
DATE OF JUDGMENT: | 4 September 2012 | |
CASE MAY BE CITED AS: | Vella v S & A Lando Pty Ltd (t/a Grand Car Wash) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1249 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Prior injury to the lower back – analysis required of the impairment resulting from an aggravation of the prior lower back injury – whether the impairment resulting from the aggravation meets the statutory test for pain and suffering and loss of earning capacity consequences
LEGISLATION CITED: Accident Compensation Act 1985, s134AB(16)(b), (37)(b), and (38)(c)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Petkovski v Galletti [1994] 1 VR 436
JUDGMENT: The plaintiff have leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Gorton QC with Mr I McDonald | Scammell Black Mileo Pty Ltd |
| For the Defendant | Mr C Hangay | Lander & Rogers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 23 December 2012 by which the plaintiff applies for leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr R Gorton QC appeared with Mr I McDonald of counsel for the plaintiff, and Mr C Hangay of counsel appeared for the defendant.
4 The plaintiff submitted that he suffered a serious permanent impairment or loss of the function of his right lower back.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered a video obtained from the defendant of the tasks undertaken by him at the defendant's car wash: Exhibit A;
· The plaintiff tendered his Court Book (“PCB”), pages 16-29; 35-37; 48‑49; 58; 74-125D and 141-161: Exhibit B;
· The defendant tendered an affidavit sworn by the plaintiff on 29 February 2000: Exhibit 1;
· The defendant tendered its Court Book ("DCB"), pages 8-22; 47-50; 81A‑81G and 83-90, and from the Plaintiff's Court Book, pages 69-73: Exhibit 2.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(c) of the Act which requires the plaintiff to prove that he has suffered a “serious permanent impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[1]
[1]s134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by ss(19)(a), ss(19)(b) and ss(38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity;
(d) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently;
(f) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined;
(g) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application;
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case;
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
(i) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application;
(j) I am required by s134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background
8 The plaintiff was born on 24 August 1973. He is thirty-eight years of age. He was in a relationship with the mother of his daughter. Their relationship broke down in about May 2008. The plaintiff and his daughter now live in the home of the plaintiff's mother.
9 The plaintiff attended St Joseph's Catholic Technical College in Collingwood. He completed Year 10. He commenced Year 11, but left partway through. He attempted an apprenticeship as a diesel mechanic but did not complete it. I assume that the plaintiff was probably sixteen or seventeen years of age when he left school. He subsequently worked as a tyre fitter.
10 The plaintiff is essentially illiterate. That became very obvious when the plaintiff was asked by Mr Hangay to read part of the affidavit he swore on 29 February 2000. It was an affidavit drafted in simple terms. The plaintiff could not read it and asked Mr Hangay to read the relevant parts of it to him.
The Prior Lower Back Injury
11 In 1993, the plaintiff was working for a company known as World Tech Tyres as a tyre fitter. It was a heavy job which involved fitting tyres to trucks and cars. In about October 1993, the plaintiff suffered a significant injury to his lower back.[4]
[4]PCB 17
12 The plaintiff sought medical treatment. He was suffering pain in his lower back with left-sided sciatica. He was referred to have a CT scan which was taken on 9 December 1993. It demonstrated a large midline and left postero lateral disc herniation at L4-5.[5]
[5]PCB 58
13 The plaintiff was subsequently seen by a number of specialists for both treatment and for medico-legal assessments. The preponderance of the medical opinions were that the plaintiff suffered an intervertebral disc injury at L4-5.
14 The plaintiff was examined by Dr Barton, occupational physician, on 8 December 1993 and 10 December 1999. In Dr Barton’s last report dated 15 December 1999, he obtained a history from the plaintiff that he was suffering right-sided sciatica, and not left-sided sciatica. Dr Barton considered that to be significant, and called into question the accuracy of the CT scan. He was of the opinion that there were aspects of the plaintiff’s presentation which called into question his credibility, namely, work stain on his hands, discrepancy on examination and lack of objective symptoms. He considered that the plaintiff could return to normal work. In expressing that opinion, he stands alone. His opinion is inconsistent with all of the other medical practitioners who examined the plaintiff prior to the year 2000.
15 The plaintiff denied that he had suffered pain in his right leg prior to 23 March 2007. Apart from the reference to right leg pain in the reports of Mr Barton, it would appear on my reading of the other medical reports that he reported pain in his left leg to the other medical practitioners who examined him relevant to the incident which occurred on 23 March 2007.
16 The plaintiff was examined by Mr Jones, orthopaedic surgeon, on 27 November 1997 and 10 December 1999. On both occasions he was of the opinion that the plaintiff had suffered a significant injury to his lumbar spine comprising a major disc prolapse at L4-5.[6]
[6]PCB 93 and 96
17 The plaintiff was examined by Mr Phillips, general surgeon, on 15 September 1999. He appears to have agreed with the appearances on the CT scan in concluding that the plaintiff suffered a disc injury at L4-5.[7]
[7]PCB 72
18 Apart from Dr Barton, the other medical examiners expressed very similar opinions regarding the nature and extent of the injury to the plaintiff's lower back. Although Mr Phillips expressed the opinion that the plaintiff was extremely vulnerable to even minor injury which might result in a further prolapse and the need for surgery, that opinion was not shared by the other medical examiners.[8] Mr Jones considered that the plaintiff had suffered a significant injury, and would continue to suffer symptoms which would reduce his work incapacity to light employment.[9]
[8]PCB 72
[9]PCB 96
19 These medical opinions demonstrate that the plaintiff suffered a major discal injury at L4-5. However, the plaintiff said that by 2000, he had not experienced any left-sided sciatica for about two to three years, and experienced occasional stiffness and occasional pain in his lower back.[10]
[10]PCB 18
20 By 1998, the plaintiff obtained work with Tyre and Brake Service as a tyre fitter. That work was subsidised by Job Start. When the subsidy ran out he was put off by the employer. He worked in that capacity for about ten months. In about February 1999, he obtained work detailing cars and installing stereo units into cars.[11]
[11]PCB 18
21 In about June 2000, the plaintiff obtained employment with the defendant at its car wash in Werribee. He obtained that job through his uncle who was friendly with the owners of the car wash business. The plaintiff considered that his lower back was, by that time, “in pretty good condition”, but was not 100 per cent.[12]
[12]PCB 18
22 The plaintiff worked at the car wash without any apparent difficulty. He was paid $450 net per week which he considered to be inadequate. He obtained another job on 22 September 2006 with Skilled Maritime Services as a second job from which he earned $300 per week.
23 Mr Gorton informed me that the defendant had produced a film of a worker undertaking the very same tasks at the car wash as the plaintiff did before he suffered further injury to his lower back on 23 March 2007. Mr Gorton showed the film to the plaintiff. The plaintiff said that what was depicted on the film was consistent with the tasks which he was required to perform at the car wash.[13]
[13]Exhibit A
24 The worker in the film was involved in considerable physical activity which, in my opinion, would require a moderate degree of bodily integrity in order to undertake that work. At the start of the film he was scrubbing down a wall of one of the car washing bays. He then used a spray gun to spray another wall of a car washing bay. He used a broom to vigorously sweep. He bent and removed what appeared to me to be to relatively large and probably heavy steel grates over a pit. Having removed the steel grates, he then got down on his haunches, and when leaning forward, began digging away at dirt and debris which had collected in the pit in order to remove it and clean the pit. Part of the film showed the store room where there were bags of material, a spade and what appeared to be other tools and equipment. The plaintiff said that he was required to lift bags of salt as part of his duties. The bags of salt weighed 20 kilograms.[14] The plaintiff was the only worker employed to do the work depicted in the film.
[14]Transcript 59
25 I do not accept the submission made by Mr Hangay that the evidence demonstrates that the plaintiff suffered a significant disc prolapse of L4-5 in 1993 and that symptoms persisted up until he suffered an aggravation of the injury to his lower back on 23 March 2007, and that consequences which the plaintiff suffered subsequently are much the same as the consequences he suffered prior to 23 March 2007.
26 The submission is inconsistent with the evidence. I accept the plaintiff's evidence that the lower back pain and the left-sided sciatica reduced significantly by the time he made a successful effort to return to work in 1998. The work he performed thereafter seems to me to have been light to moderate in its nature, but certainly by the time he commenced work at the car wash he was engaged in work which, to repeat what I have already said, was work which required a moderate degree of bodily integrity, and certainly required a lower back which could sustain the stresses and strains of the work which I saw that worker undertaking. It is not work which the plaintiff could have performed had he still been suffering significant pain in his lower back and left leg, as was the case from 1993.
The Incident
27 On Friday, 23 March 2007, the plaintiff ripped open a bag of SuperSat powder and began emptying it into a drum. Some of the powder billowed up. The plaintiff inhaled some airborne particles, even though he was wearing a mask. He sneezed heavily, with the result that he was met with immediate and severe pain in his lower back with pain radiating down into his right leg.
The Subsequent Medical Treatment
28 The plaintiff waited until the following Monday before seeing a physiotherapist for treatment. His lower back was taped. He was given exercises to do, and soft-tissue massage and mobilisation. The physiotherapy did not help him much. He went on a pre-arranged holiday to Yarrawonga with his partner. He was in severe pain. He next saw a general practitioner at Hoppers Crossing, before seeing Dr Bernard, general practitioner.[15] He was referred to have a CT scan which was taken on 18 April 2007. The radiologist reported the following:
“There is a posterior and right paracentral disc protrusion extending into the right lateral recess and involving the descending right L5 nerve root. A mild canal stenosis results. Bilateral facet joint arthropathy is also noted.”[16]
[15]PCB 74
[16]PCB 98
29 It is unclear what medical treatment the plaintiff had following the CT scan. Dr Bernard mentioned referring the plaintiff to see a neurosurgeon on 8 February 2008. However, the plaintiff said that he went to The Royal Melbourne Hospital Neurosurgery Outpatient Clinic. He encountered a long waiting list, but eventually saw Professor Kaye, neurosurgeon, on 8 February 2008. He was referred to have an MRI scan which he was told demonstrated an L4-5 disc prolapse. [17]
[17]The plaintiff did not produce a report from The Royal Melbourne hospital or Professor Kaye. No point was taken about this by the defendant. The parties were content to proceed on the footing that the medical reports which they tendered were sufficient to demonstrate the nature and extent of the injury the plaintiff suffered on 23 March 2007
The Subsequent Medical Opinions
30 The following is a summary of the opinions of the medical examiners who examined the plaintiff following the incident of 23 March 2007. Each was given a history in varying detail that the plaintiff had suffered a similar injury in 1993.
31 Mr Williams, orthopaedic surgeon, examined the plaintiff on 17 May 2007. He was of the opinion that the plaintiff had suffered an L4-5 intervertebral disc prolapse causing nerve root irritation on the right side as a result of the incident. At that stage, he considered that the plaintiff had no work capacity.[18]
[18]PCB 102-103
32 Mr Dooley, orthopaedic surgeon, examined the plaintiff on 13 November 2007. He was of the opinion that clinically and radiologically, there was evidence that the plaintiff had suffered a right sided L4-5 disc prolapse as a result of the incident. He forecast that if the pain persisted the plaintiff might require a nerve root block or might come to surgery in the form of a discectomy. At that stage, he considered that the plaintiff had no work capacity.[19] He re-examined the plaintiff on 15 May 2008. The only alteration in his previously expressed opinion was that he considered that the plaintiff could undertake some light physical or clerical work.[20]
[19]PCB 107
[20]PCB 110-111
33 Mr Simm, orthopaedic surgeon, examined the plaintiff on 25 March 2008. He was of the opinion that the plaintiff had suffered a disruption of the L4-5 lumbar intervertebral disc comprising an annular disruption of the disc and the development of right-sided postero lateral L4-5 disc protrusion with right-sided nerve root irritation. He was of the opinion that there were no clinical signs of radiculopathy. He was not certain whether the incident caused a recurrence of the previous injury, but on balance, considered that the plaintiff had suffered a primary injury to his lower back because of the previous absence of right-sided sciatica. He did not offer an opinion on the plaintiff’s capacity to work at that stage, but inferentially he appears to have concluded that the plaintiff would experience persistent chronic symptoms with possible severe episodes of lower back pain and left leg pain.[21]
[21]PCB 78-79
34 Mr Shannon, orthopaedic surgeon, examined the plaintiff on 16 March 2009, 17 November 2009 and 30 August 2010. Mr Shannon obtained a more elaborate history of the injury suffered by the plaintiff in 1993, and had the CT scan of 1993, the CT scan of 1997 and the MRI scan available for inspection. He was of the opinion that the plaintiff suffered a recurrent disc prolapse as a result of the incident at L4-5 level, extending more to the right side, resulting in right-sided sciatica. He was of the opinion that the plaintiff had an extremely limited work capacity and was not fit to work at that stage.[22]
[22]PCB 114-115
35 Mr Shannon was of much the same opinion after he re-examined the plaintiff on 17 November 2009.[23] He was provided with some vocational material for the purpose of determining whether the plaintiff could be a meter reader, an enquiry clerk, a car park attendant, a console operator, or whether he could work in sales. He was of the opinion that the plaintiff was unfit for any of those vocations.[24]
[23]PCB 120-121
[24]PCB 120-121
36 Mr Shannon's opinion changed after he examined the plaintiff on 30 August 2010 in terms of the vocations which he considered the plaintiff was likely to be able to pursue. He considered that the plaintiff was fit for all the jobs previously identified, subject to being able to avoid significant bending and lifting. The reason for the shift in his opinion appears to have been based on an investigator’s report which he was provided with which referred to a video taken of the plaintiff which apparently demonstrated the plaintiff bending further than he did when Mr Shannon examined him. Mr Shannon did not see the video.[25]
[25]PCB 124
37 Mr Kudelka, orthopaedic surgeon, examined the plaintiff on 24 January 2012. He was not provided with the first CT scan, but he was provided with the reports of Mr Shannon. Therefore, I infer that Mr Kudelka was aware of the pathology produced as a result of what occurred in 1993. In any event, he was aware that the plaintiff had previously suffered a discal injury at L4-5. He considered that the plaintiff had recovered from that injury, but suffered further injury to it in the incident. He considered that the degree of damage of the L4-5 disc was causing sufficient protrusion to involve the right-sided nerve. He considered that the plaintiff needed surgery either in the form of a microdissection to relieve pressure on the right L5 nerve root and possibly with an associated spinal fusion. He considered that the plaintiff’s prognosis was poor unless he had surgery. He was asked to consider the same jobs as was Mr Shannon. He considered that those jobs might be appropriate if the plaintiff had further training, but he considered that the plaintiff would have difficulty with bending, stooping, lifting and sitting for prolonged periods of time, and climbing in and out of cars.[26]
[26]PCB 82-83
38 Dr Yong, occupational physician, examined the plaintiff in March 2012. He was provided with the two CT scans and the MRI scan, and also the reports of Mr Shannon. Whilst his opinion is basically consistent with the opinions of the other medical examiners, he put his opinion in a rather curious way when he said that the plaintiff was suffering from chronic low back pain which commenced with a discal injury. However, what he did not say was that the discal injury had in some way receded, but by inference I assume that is what he meant. He said that there were no features of radiculopathy.
39 Mr Gorton was highly critical of the balance of Dr Yong's opinion which I will shortly go to. Firstly, Mr Gorton referred me to the examination conducted by Dr Yong which demonstrated very significant reduction in all movements, yet Dr Yong considered that the objective signs on examination were consistent with a mild reduction in range of movement. Mr Gorton submitted that the conclusion is internally inconsistent with the findings on examination.[27]
[27]PCB 81E
40 Dr Yong was provided with the same vocational material which was provided to Mr Shannon relevant to the same jobs. That was the next matter on which Mr Gorton was highly critical of Dr Yong. Dr Yong was of the opinion that the duties listed in the vocational assessment were suitable, but no duties are identified in the vocational assessment.[28]
[28]PCB 81F. The vocational material is at DCB 83-97
41 The last matter relevant to the vocational assessment which drew criticism from Mr Gorton was the reference by the assessor to the plaintiff's illiteracy, and whether it would be an obstacle to him being retrained.[29]
[29]PCB 86 and 90
Findings
42 On the basis of the foregoing summary of the plaintiff's evidence and the medical evidence, I find that the plaintiff suffered a major discal injury at L4-5 in about October 1993 which resulted in him suffering pain in his lower back and left-sided sciatica.
43 I find that the plaintiff made a significant recovery from the initial consequences of that injury by about 1998, and certainly by 2000, when he commenced employment with the defendant. It was employment which, as I have already observed, required sound bodily integrity given the tasks which the man in the film demonstrated was the essence of that job. It was not a job the plaintiff could have undertaken had he had an actively symptomatic lower back problem consistent with the problems he was encountering in 1993.
44 I accept the evidence of Mr Williams, Mr Dooley, Mr Simm, Mr Shannon and Mr Kudelka that the plaintiff suffered a discal injury at L4-5 as a result of the incident which resulted in what Mr Kudelka described as pressure on the L5 nerve causing right-sided sciatica. In particular, I am more persuaded by the opinions of Mr Dooley, Mr Shannon and Mr Kudelka, because it would appear that they had the advantage of a more extensive history of the injury the plaintiff suffered in 1993 and were consequently in a position to make a reasonable assessment of what the incident caused in terms of further discal injury.
45 The question of whether the plaintiff suffered a compensable injury was not an issue. The question of its identification was. It seems to me that the identification of it is beyond much doubt, even if I were to limit my assessment of that to the defendant's evidence. What is tolerably clear is that the plaintiff suffered further discal injury at L4-5 and that there was pressure on the L5 nerve causing right-sided sciatica. By inference, that diagnosis must mean that there was a further discal injury and that the movement of the disc was to the right side, whereas the movement of the disc in 1993 was to the left side. This supports a logical conclusion that there was a pathological change of some significance as a result of the incident to produce that disc movement and the pressure on the nerve.
46 Mr Hangay submitted that I should not be satisfied that the aggravation of the pre-existing injury to the plaintiff's lower back meets the test enunciated in Petkovski v Galletti.[30]I must analyse the extent of the impairment of the function of the plaintiff's lower back before and after the incident. In doing that, I find that the plaintiff had significantly recovered from the prior injury to his lower back to the extent that he was relatively pain free and had little or no restriction of movement enabling him to work for the defendant, and it must be remembered the plaintiff was also engaged in additional employment. Furthermore, he was not having any medical treatment of any kind and had not had any for some time before 2000 when he commenced working with the defendant.
[30][1994] 1 VR 436
47 When an analysis is made of the extent of the impairment of the function of the plaintiff's lower back after the incident, it is obvious to me that he suffered a major injury to his lower back at the level of L4-5 which damaged the disc further and to the extent that it moved, resulting in pressure on the L5 nerve causing right-sided sciatica. He now has constant pain and right-sided sciatic pain.
48 According to his affidavits, the plaintiff has required a significant amount of medical treatment. He is now under the care of Dr Chronas, general practitioner, who prescribed him a raft of painkilling medication which included Mersyndol Forte, oral Morphine and Tramal. He said that Dr Chronas advised him that the medication he was taking contained too much Codeine. As a result, his regime of medication has been changed to the use of Nurofen plus, Mersyndol Forte, and Panadol.[31]
[31]Transcript 44
49 I accept the evidence given by the plaintiff in his affidavits regarding the pain and suffering consequences which have resulted from the impairment of the function of his lower back. It is clear that he experiences significant difficulty maintaining a reasonable posture and mobility. He has constant pain in his lower back, and pain in his right leg going down to his foot, with a sensation of coldness and numbness. His relationship with his partner broke down. He had to sell his house because he had no income. He now lives with his mother in her home. He finds driving difficult. He can no longer drive to Echuca where he once had a holiday cabin. He no longer goes fishing.[32]
[32]PCB 24-25 and 28-29
50 In the circumstances, I find that the impairment of the function of the plaintiff’s lower back and the pain and suffering consequences of the aggravation easily meet the statutory test.
51 I make a like finding in relation to the plaintiff's loss of earning consequences. Although Mr Shannon considered that the plaintiff was fit for the jobs which were referred to him, he seemed to be persuaded to change his opinion to that view after he was given an investigator’s report. The investigator apparently commented on a video that he had taken, but Mr Shannon was not provided with the video, only a report of it. It seems to me that Mr Shannon’s reliance on the report of the investigator is unsound. He should have been provided with the video so that he could confirm that what the investigator reported was accurate.
52 Likewise, I am not persuaded that I should accept the opinion of Dr Yong. I have read the vocational material in detail. The duties are not described in any significant detail, unlike the description of the tasks involved in those jobs in the report of Ms S George of Evidex.[33] Neither Dr Yong nor Mr Shannon were exposed to that level of detail, and perhaps they should have been, because I am not convinced that their opinions were based upon the real evidence of what the tasks are required of someone undertaking those jobs.
[33]PCB 155-156
53 I am more persuaded by the opinion of Mr Kudelka. He considered that the plaintiff's condition would be improved if he had surgery, but at the same time he made a reference to there being no guarantees that surgery would give him that result. Furthermore, Dr Chronas considers that the plaintiff's current prognosis is not good. She did not consider that the plaintiff was fit for suitable employment of any kind.
54 In the circumstances, I do not accept that the plaintiff is fit for suitable employment. Firstly, I repeat the summary I had given of the medical evidence which I accept and the consequences presently endured by the plaintiff. Secondly, I accept the plaintiff's evidence that effectively he is suffering from pain and limitation of movement which is of a degree that disables him substantially in his social, domestic and recreational life. Thirdly, I accept that the plaintiff now has to resort to a second level of effective medication because of the advice given to him by Dr Chronas that it is not advisable for him to take more potent and powerful medication. Fourthly, the plaintiff is practically illiterate. To suggest that he could work in jobs requiring organisational skills based upon competence with the English language is to ignore his language difficulties which constitute a significant impediment to retraining, and which limit the range of suitable employment which would otherwise be open to him.
55 Therefore, I find that the loss of earning capacity consequences suffered by the plaintiff also meet the statutory test.
Conclusion
56 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the defendant.
57 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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