Vinen v Victorian WorkCover Authority
[2022] VCC 2218
•16 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-04344
| MATTHEW ROBERT VINEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 25 May 2022 | |
DATE OF JUDGMENT: | 16 December 2022 | |
CASE MAY BE CITED AS: | Vinen v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2218 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – neck injury – causation – nature and extent – loss of earning capacity – plaintiff under 26 years of age
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; State of New South Wales v Moss (2000) 54 NSWLR 536; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Malec v Hutton 1990 169 CLR 638; Berthelot v Fleetweld Pty Ltd [2015] VCC 1453; Richter v Driscoll (2016) 51 VR 95; Aburrow v Network Personnel Pty Ltd and WorkSafe Victoria [2013] VSCA 46
Judgment: Leave to the plaintiff to issue common law proceedings for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Mr N J Dunstan | Maurice Blackburn |
| For the Defendant | Mr B R McKenzie | Russell Kennedy |
HIS HONOUR:
1The plaintiff in this action seeks leave to commence common law proceedings against the defendant, his former employer, the Pot Belly Stove Company Pty Ltd (“Pot Belly”), pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) in respect of both pain and suffering and loss of earning capacity damages.
2The application relates to an injury to the plaintiff’s cervical spine and upper thoracic spine, which he claimed he suffered as a result of a workplace injury which took place between June 2004 and early September 2004 due to the heavy general nature and, in particular, on one occasion in early June 2004.
3What was in contention was whether the plaintiff suffered a “serious injury”, at the time of hearing, within the meaning of paragraph (a) of the definition of that term in s134AB(37) of the Act as a result of this compensable injury. Paragraph (a) provides that a “serious injury” means “permanent serious impairment or loss of a body function”.[1]
[1] Section 134AB(38)(b) and (c) of the Act
4In his opening, counsel for the defendant indicated that the main issue before the Court was whether any impairment to the cervical spine subsisting at the time of hearing, was causally related to the compensable injury, when judged by a comparison with other cases in the range of possible impairments or losses of a body function, can fairly be described as being more than significant or marked, and as being at least very considerable.[2] This is colloquially known as a “range case”. And, further, whether any such injury/impairment was productive of a loss of income capacity of 40 per cent or more pursuant to s134AB(38)(e)(i) and (ii) and (f) of the Act.
[2] Humphries and Anor v Poljak [1992] 2 VR 129 at 140
Work-related physical injury
5In his first affidavit sworn 19 May 2021,[3] the plaintiff swore as follows:
“I completed Year 10 at Heathmont College.
After school I commenced a plumber’s apprenticeship with PKS Plumbing. When I was employed there, I injured my left knee. I made a claim. I had a left knee arthroscope. After a few months, I had the occasional aches and pain in my left knee. I was pretty much back to normal.
I then worked for another plumbing company and then at Night Owls, a printing company for about 2 years. I then worked for DJ and MA Fraser Plumbing for about six months and AK Furniture making furniture for a few months.
I experienced back pain in 2000. I can’t recall what this was about.
When I was about 18, I was a passenger in a motor vehicle accident. I hurt my left arm and shoulder. I don’t recall needing medical treatment.”[4]
[3]Plaintiff’s Further Amended Court Book (“PFACB”) (Exhibit A), page 16
[4]PFACB 16, plaintiff’s affidavit of 19 May 2021, paragraphs 4-8
6As to the injury he suffered, he swore as follows:
“I commenced employment with the Defendant on 19 July 2004 as a full-time apprentice plumber. I was required to manually lift, carry and install heavy wood and gas fired heaters including on and off a van and up and down stairs.
In the course of my employment, and on about 31 August 2004 particularly, I was required to lift a heavy wood fired heater up a flight of stairs with an apprentice plumber ‘Mitch’. Mitch was holding the front of the heater when he slipped causing me to take the full weight of the heater. I felt immediate searing pain through my right shoulder and arm. I understand I had injured my neck, back and left shoulder.
...
I reported the injury to my manager Bob Austin. I stopped working on 2 September 2004.”[5]
[5]Ibid, paragraphs 9-10 and 12
7Following the injury, the plaintiff swore he underwent the following treatment:
“In early September 2004 I attended Dr Tay with right shoulder pain. Dr Tay recommended I take some Voltaren and attend a physiotherapist. A CT Scan of my cervical spine was performed around this time. I understand it was normal. Dr Tay recommended I have a right shoulder ultrasound and take Mobic. He referred me to a neurosurgeon. Dr Tay prescribed Panadeine Forte, referred me to Tim Day for nerve conduction studies and placed me on light duties.
A few weeks after the injury, I tried to go back to work. I worked in the employer’s office but was not able to concentrate given the high dose of Panadeine Forte I was taking. I also had difficulty sitting or standing for any length of time.
I lodged a WorkCover claim for injury to my right shoulder on 15 September 2004. The claim for weekly payments of compensation and medical and like expenses was accepted.
...
In early 2005, I was struggling to cope. I had been kicked out of home because I couldn’t pay board. I was prescribed Zoloft, Tramadol, Endep and Valium. I was depressed, angry and in considerable pain.
...
In 2013 I attended Yarra Valley Chiropractic Clinic for treatment.
...
In January 2018, I went to Maroondah Hospital and had a[n] MRI of my cervical spine. I understand it revealed cervical spondylosis, foraminal stenosis and compression of the C4 to C7 nerve roots. Around this time, I was referred to orthopaedic surgeon, Mr Lundine. He recommended a C5/6 discectomy.
I sought a second opinion from Mr Paul D’Urso who recommended I have a two level fusion at C4/5 and C5/6. Funding for this operation has been approved. I am reluctant to proceed with surgery given the risks of increased pressure on the adjacent discs.
I also underwent a C6 nerve root injection which helped reduce my pain for about a week but also resulted in an increase in the frequency of migra[i]nes.
In February 2018, I lodged an Impairment Benefits claim regarding my neck and psychological injury. The insurer for the Defendant accepted that I had a permanent impairment to my neck.
I continue to attend Dr Tay about once a week. I also see Dr Aybar when needed.
I continue to take Endone, Targin, Valium and Mirtrazapine (sic) daily together with Sumatrippan (sic) when needed. I experience side effects of the medication including problems with my memory and constipation. I had a haemorrhoidectomy in about 2016.”[6]
[6]Ibid, paragraphs 13-15, 18, 21, 23-28
8As to the consequences as a result of the injury, he swore:
“I have constant neck, back and right and left shoulder and arm pain. I have numbness in both arms. It is worse on my left side to the point that I have minimal sensation of my left arm. I have reduced left arm strength and constant pins and needles in both arms. I have limited feeling in both thumbs and index fingers. The pain can be searing. It is worse with movements such as coughing. The pain radiates down throughout my back and down my right leg.
I nearly always have a migraine. I am sensitive to light and sound.
I have difficulty standing and sitting for long periods. Twisting, pushing and pulling increases the neck, back and left and right shoulder and arm pain.
...
I struggle emotionally. I feel depressed and anxious. I feel flat and emotionally numb. I have withdrawn from my friends and family. I struggle to get out of bed as a result of the depression and pain. I am angry and struggle to accept that I have not improved. It is hard to remain positive.
My injury, the pain and depression affected my relationship with Erin. Our intimate life was affected. We have separated. The effects of the injury are a large part of why we have broken up. I struggle to maintain my mood when I am in pain.
The injury has affected my sleep. I wake up two or three times a night. I often get up and take more pain killers. It usually takes me over an hour to get back to sleep. I’m tired during the day. I sleep during the day.”[7]
[7]Ibid, paragraphs 29-31 and 35-37
9As to his physical state prior to the injury, he swore:
“Before the injury I enjoyed fishing, diving, go cart racing and playing football and soccer. I went fishing and diving most weekends at places such as Point Leo and Phillip Island. Since the injury I have tried to go fishing but I experience pain. I take more medication and take it really easy. I no longer go diving. Before the injury, I went go-cart racing with friends every 2 or 3 weeks. I have tried once or twice after the injury but experienced increased pain. I played social football and soccer about once a week.
Before the injury, I cleaned the house including doing the washing and cooking. I try to do what I can now but rely upon my mother to come and assist me. I do what I can in stages. I take medication and rest.
I felt young and able before the injury. Now, I struggle to put my shoes and socks on. I struggle to get out of the bath. I have difficulty playing and caring for my children. Bending down and lifting them increases the pain.”[8]
[8]Ibid, paragraphs 32-34
10As to economic loss suffered as a result of the injury, he swore:
“After I stopped working with the employer in 2004, I didn’t work for about 3 or 4 years because of the pain. I was on Centrelink. I didn’t know I could apply to have the decision around my claim reviewed.
From about 2007/2008 I worked at RF Industries as a factory hand for about 2 years. I struggled to attend work regularly and was barely coping with the pain.
In about 2009, I started working for Burden’s Plumbing as a counter hand and then as the Assistant Manager. I was required to take orders over the phone. The work was quite light. I didn’t cope very well. I struggled to attend work regularly and reliably.
I left after about 2.5 years. I earned in the vicinity of $65,000 gross per annum.
Since 2012 I have worked for Kebels Trading as an Assistant Manager. My duties included taking orders over the phone and counter sales. I gave notice in early March 2021. I was struggling to concentrate due to the pain killers and taking time off because of the pain. My boss was supportive and flexible I did not feel able emotionally or physically to continue. I earned in the vicinity of $60,000 gross per annum. I don’t know what work I can do.
My computer skills are pretty basic. I have a computer at home. I mainly play some computer games with my son.
If it wasn’t for the injury, I would have been a fully qualified plumber. My dad and brother are builders. I planned to have my own plumbing business.”[9]
[9]Ibid, paragraphs 40-46
11In his second affidavit, sworn 17 May 2022,[10] the plaintiff swore as follows:
[10]PFACB, page 23
“I have not worked at all since I swore my earlier affidavit.
I remain under the care of my GP, Dr Tay. I speak to Dr Tay once a week on the telephone and I see him in person about once every three weeks.
I remain under the care of my pain specialist, Dr Dan Bates. I see him once every three months. Dr Bates recommended that I consider having a trial of a spinal cord stimulator, but I declined this suggestion because I do not want to have any surgery done to my spine.
I am currently taking the following medications:
• Palexia, 200mg SR x two daily and up to 4 x 50 mg daily,
• Mirtazapine, 1 x 45 mg daily,
• Valium, up to 3 x 5mg daily,
• Sandomigran, 500 micrograms x 2 at night to prevent migraines,
• Narimig (sic), 25 mg for migraines, up to 3 x 2 per week,
I do not believe that I can work at all because of my neck injury. I do not believe that I am able to turn up to any sort of job on a reliable and consistent basis because of my neck injury. I have good days and bad days with my neck pain, but on average I have 4 bad days a week. When I have a bad day, I need to lie down and rest for most of the day. When I experience I migraine I am very sensitive to light and sound. There is no way I could work when I am having a bad day or when I get a migraine. I get about three severe migraines a week.
The medication I am taking for my neck injury affects my ability to concentrate. My neck pain also affects my ability to concentrate. This would also prevent me from working in any sort of job on a reliable and consistent basis.
The reason why I cased work in my last job was because of all the sick days I was taking. By the time I ceased working I was missing work at least 1 to 2 days a week and I was leaving work early on a very regular basis because of my neck pain.
I continue to have problems with standing or sitting for very long because of my neck pain.
I continue to be unable to enjoy my interests including fishing, diving, go cart racing, and playing footy and soccer because of my neck injury. Recently, I took my son to do some fishing off the pier at Newhaven, but I was not able to do any fishing.
I continue to struggle with washing and cooking because of my neck injury. My mother comes over once a week to help me with the cleaning and to do some of the cleaning chores, which I struggle to do because of my neck injury.
I continue to struggle mentally because of my neck injury. It affects me mentally being unable to work. I cannot work because of my neck injury. I would love to be able to work.
In about September 2021, Dr Bates arranged for me to be given a ketamine infusion. This did not help me at all and in fact it gave me a migraine that lasted for about three days.
My sleep continues to be disturbed by my neck injury. I sleep very poorly because of my neck pain. This affects me throughout the day.”[11]
[11]PFACB, plaintiff’s supplementary affidavit of 17 May 2022, paragraphs 2-14
12Finally, in his last affidavit, sworn 19 May 2022,[12] he swore as follows:
[12]PFACB, page 27
“I now believe that I first started working for my employer in about June 2004 and not in July 2004 as I stated in paragraph 9 of my 1st Affidavit.
I now believe that the incident referred to in paragraph 10 of my 1st Affidavit occurred in about early June 2004 and not on about 31 August 2004.
In addition to what is stated in my 1st Affidavit I wish to add that my work duties for my employer involved a lot of repetitive lifting of heavy pot belly stoves and gas heaters. These pot belly stoves and gas heaters were very heavy and awkward to lift and manoeuvre. We were required to lift these heavy stoves and gas heaters upstairs and in confined spaces. These lifts were very heavy and awkward and placed stresses and strains on my neck, back and shoulders. As a result of performing these repetitive heavy lifting duties I developed aches and pains in my neck and shoulders from all the repetitive heavy and awkward lifting involved. This was both prior to and after the incident that occurred in about June 2004.
...
I am informed that I saw my GP, Dr Tay, on 4 September 2004. He prescribed me Panadeine Forte. Prior to that I was taking Nurofen and other over the counter medication for my pain.
...
I returned to work doing office duties in about late September 2004. I only lasted at work for about one month. I ceased doing the office duties in about late October 2004. I was not coping at work because of my pain.
In November 2004 I was referred to see a neurosurgeon, Mr Damien Tange.
In about November 2005 I was referred to see a pain specialist, Dr Timothy McCarthy. He recommended that I have another MRI taken. By this time Workcover had ceased funding my treatment, so I was self-funding my own treatment.
In about September 2021 Dr Bates changed my medication. He took me off Targin and put me on Palexia. It took a while for me to adjust to this new medication, but then my pain levels returned to the same level they were before I stopped taking Targin.
The pain in my neck is constant and is a throbbing pain. The pain is aggravated by any prolonged standing or sitting. The medication I am taking dulls the pain a little bit, but it doesn’t take away the pain. Even doing the littlest of things can aggravate my pain. The pain in my neck goes into my upper back and in between my shoulder blades. I don’t get this pain every day, but more like every second day. When I get this pain, it lasts for most of the day. I get pain going down my arms and into my thumbs. I don’t get this pain every day, more like every second day, but it is unpredictable.
I get the migraines about three times a week. They last for about 12 hours. I have been advised by my doctors that they are caused by my neck injury. I did not suffer from migraines before I suffered my neck injury working for my employer in 2004.
Aside from my physical pain I have become very depressed because of my injury. I started getting very depressed in about 2005 after I had suffered my injury and lost my job and was struggling with my physical limitations. I have had psychological difficulties ever since. Before my injury I was physically very fit, and I stayed very active. I enjoyed a wide range of sporting activities including fishing, go-karting, footy and soccer. I enjoyed working. Since I have lost my capacity to do all these sporting activities and work, I have become increasingly isolated and depressed. My chronic pain also wears me down. I feel very despondent and hopeless on most days. Before my injury I had plans to run my own plumbing business, but that’s all gone now. I separated from my partner last year.
I was seeing a chiropractor for treatment who was helping with my pain, but Workcover refused to pay, and I cannot afford to pay for this treatment.”[13]
[13]PFACB, plaintiff’s affidavit of 19 May 2022, paragraphs 3-5, 7, 10-17
Cross-examination of the Plaintiff
13In cross-examination, the plaintiff denied that he had had ongoing pain in the relevant areas since 2000, and confirmed that the lifting of the pot belly stove in the course of his employment was the initiating incident.
14When it was put to him that he did not wish to pursue plumbing in any event, he stated it was his wish to finish his apprenticeship and he had a long-term plan to open his own plumbing business just as his father and brother had done as carpenters. He had decided not to pursue plumbing as there was too much pain.
15The plaintiff was taken to his general practitioner’s entry of 4 September 2004, where it was recorded:
“6 June 2004 being lifting pot belly stove at work … being sore for a few months … And then had manipulation, carried a lot of pain, can’t sleep at night … .”[14]
and the plaintiff confirmed that the doctor listened to him.
[14]T36, L9-28 and DACB 224
16The plaintiff confirmed the general practitioner referred him for a CT scan of his cervical spine on 10 September 2004, but did not recall the consultation.
17Further, it was put to the plaintiff that he had been assaulted by two men on or about 5 February 2007 and was stabbed in the left side of his arm. He had been kicked in the back and head, and pushed through a window, such that he was taken by ambulance to hospital. It was further suggested that it was after this incident that he had suffered chronic headaches. The plaintiff disagreed, but said that the headaches may not have been severe enough to complain to the doctor.
18In terms of general practitioner entries, where it is recorded that he had “hurt his back”, he replied, “[t]hat was upsetting the injury, upsetting the original injury”.[15] When he was asked, “[w]hat was upsetting, the changing of gears”,[16] the plaintiff answered:
A:“Yeah, so like I can sneeze now and upset my injury, and so on that day I - I changed a gear in the car and like it had upset my injury again.
Q:And it hurt your back, did it?---
A:Well, yeah, when I say my back it’s all the - the top part of my back, you know, I wasn’t - I’m not a doctor, I - you know, my back is my back, so back and my neck hurt.”[17]
[15]T40, L6-7
[16]T40, L8
[17]T40, L8-15
19He further agreed that in October 2009, he reported to his general practitioner that he had been standing up all day at work and was bending a lot. He further agreed that in 2009, he had been playing indoor soccer when he hurt his mid-back and suffered some spasm.
20It was further put to him that between 30 June 2009 and 26 August 2014, there was no reference to a neck complaint as recorded by his general practitioner. The plaintiff stated that he mentioned it all the time, but it was just not recorded in the notes.
21He agreed with defence counsel that he enjoyed his job at Keble’s Trading where he was employed as a sales manager between April 2013 and April 2021, and agreed that there was occasionally a physical component when there was no one there to help him out.
22He agreed that his résumé with respect to his work history was correct, in that between October 2007 and November 2009, he worked as a process worker for RF Industries, and between December 2009 and January 2013, he worked as an assistant manager at Burden’s Plumbing, and finally, between April 2013 and April 2021, he worked as a sales manager at Keble’s Trading.
23The plaintiff further stated that where it was recorded that he had “no health issues” this was an untrue statement, as he was trying to get a job. The plaintiff denied that his neck symptoms had ceased because of the lack of records by the general practitioner between April 2009 and February 2015. At all material times, he stated, “I was trying to secure a job”. He further stated he had told his boss at Keble’s that he needed time off, and in return the boss was both flexible and supportive.
24The plaintiff further stated that where the general practitioner had referred to “back”, the plaintiff had complained of pain at the top of his back and his neck.
25Specifically, it was put to the plaintiff:
Q:“… So, Mr Vinen, just to recap that question, we got up – yesterday we got up to notes of June 2009 and I suggest that when we look at the rest of the notes, the handwritten notes especially, taking us to August 2014, there is no complaint by you of neck symptoms and I suggest that’s because you made no complaint of neck symptoms between June 2009 and August 2014, what do you say?---
A:Um, when I complained about my back pain it’s all at the very top of my back so I didn’t know that where the definition lies between neck and back specifically.”[18]
[18]T44, L7-17
26The plaintiff stated that his general practitioner, Dr Tay, prescribes all his medication and he had been with this practitioner the whole time since his injury, and it was put:
Q:“And do you say that Dr Tay has consistently prescribed painkilling medication the whole time?---
A:Yes.”[19]
[19]T47, L19-20
27The plaintiff was specifically taken to an entry on 26 September 2019 by Dr Tay, where it stated, “Reason for contact, neck and back pain” and was asked:
Q:“… would you accept that you made those complaints to … Dr Tay?---
A:Yes. Yeah, nearly every time I contacted him it’s always about the neck and back pain.”[20]
[20]T47, L22-31
28Further, it was put to the plaintiff:
Q:“And then 14 October 2020 … there’s reference to chronic neck and back pain. And there’s further reference to neck pain after that time. And leading up to 25 February 2021 … the doctor has recorded, ‘Still has migraine on top of the pain in the neck. Sounding quite depressed. Thinking about quitting his job’. Now, the – what had been happening at Keble’s Trading Pty Ltd leading up to 25 February 2021?---
A:I was struggling with pain all the pain so – and getting pretty depressed.”[21]
[21]T49, L12-21
29In order to obtain the employment with Keble’s, the plaintiff answered a question on a pre-employment form to the following effect:
“Do you suffer from any health issues, disorders or injury that we as employers should be aware of?”[22]
[22]T55, 11-13
30He agreed he had ticked “no” and stated, “I was trying to get the job” and it was an “untrue statement”.[23] He also agreed that it was “clearly untrue” when he certified that he had not suffered any past WorkCover injuries.[24]
[23]T55, L13-18
[24]T55, L26-29
31Further on, it was put:
Q:“So, Mr Vinen, when you talk about back pain, where you say – you’ve told the doctor about back pain, where do you say the back pain - - - ?---
A:It’s always been the top of my back and bottom of my neck and that area. So like I’m not a doctor, I don’t – to discern the two different parts it’s very hard for me to say.”[25]
[25]T58, L14-19
32And further:
“… it’s always been in the same sport and my doctor knows this.”[26]
[26]T58, L22-23
33Further, the plaintiff confirmed he had resigned from this employment on 9 March 2021 after he had separated from his wife on 1 March 2021, but denied that the two events were connected. He stated that he ceased work because he could no longer do it, and he had not looked for other work. When it was suggested to him that he could still work at Keble’s if he wanted to, he replied that he could not.[27]
[27]T59, L21 – T60, L4
34When it was put to him that he may have ceased work with Keble’s because this case was coming up, he replied:
“No. No, I ceased work because I could no longer do it.”[28]
[28]T62, L1-3
35Further, the plaintiff stated that he had applied for two disability pensions from his superannuation fund and from an insurance policy, and both claims had now been accepted. Accordingly, when it was put to him that therefore he had no motivation to work, he stated that he would love to work, but he was not physically capable. Further, he denied that he would look for work again after his case was over.[29]
[29]T62, L13 – T63, L31
36In re‑examination, the plaintiff described the jobs he had performed prior to working for Pot Belly Stove Pty Ltd, all of which involved physical work without resultant pain to the affected areas.
37The plaintiff said that, since he attended the pain management specialist, everything has progressively gotten worse.[30] Further, in the years prior to his employment with Pot Belly Stove, he had worked for plumbers, DJ & MA Fraser, and had performed physical work without any upper spine problems.[31] Further, the plaintiff was asked about his employment with AK Furniture prior to DJ Plumbing and said, “It was a pretty labour intensive job” and as such he had no problems with his upper back.[32]
[30]T74, L26-27
[31]T75, L22 – T76, L10
[32]T76, L20 – T77, L2
Causation
38The plaintiff claims an injury to his neck and upper spine as a consequence of work undertaken from June 2004 to early September 2004 in the course of his employment with Pot Belly Stoves.
39The plaintiff gave evidence that he injured his back sometime in June 2004 after he commenced working with the employer while lifting a heavy potbellied stove upstairs. Thereafter, he continued to work and developed significant symptoms in his right shoulder and back.[33]
[33] T24
40The plaintiff reported the injury to Bob Austin, the manager and director of the employer, on the 31 August 2004[34].
[34] DACB 4, T-79
41The plaintiff, in his statement, stated:
“Bob (Austin) sent me to a muscle manipulation therapist that he uses but that did not help much.”[35]
[35] PFACB 167
42The plaintiff ceased work on 3 September, 2004.[36]
[36] Bob Austin PCB-175
43The note of a complaint to a medical person was to the plaintiff’s general practitioner, Dr Tay:
“4/9/04 (since June 04) Been lifting pot-belly stove at work. Been sore for few months. Had manipulation → no help.”
Now in a lot of pain, can’t sleep at night.
[On examination] [right] shoulder …
Tender trapezium
K Voltaren Rapid 50mg
Rest.”[37]
[37] DACB 224
44Thereafter, on 6 September 2004:
“[Right] shoulder; back (or) ‘been’ painful, not sleeping
Panadeine Forte (20).”[38]
[38]DACB 224
45On 8 September, 2004, Ron Munro, physiotherapist, noted:
“… complaining of pain that ran down the lateral aspect of his right arm, associated with pins and needles in a C6 dermatomal distribution”[39]
And:
Palpation of the soft tissues and joint structures of his cervical and upper thoracic spines found extreme tenderness to the right of T3 – 5.”[40]
And:
My impression was that Matthew has an acute inflammation of an upper thoracic intervertebral disc.”[41]
[39]PFACB 51
[40] PFACB 51
[41] PFACB 52
46On 9 September 2004, Dr Tay recorded in his notes:
“Spoke to Ron Munro - physio … needs CT cervical spine.”[42]
[42] DACB 224
47A CT scan undertaken on 10 September 2004 recorded”
“Clinical History: 23 year old male with painful neck and right shoulder.”[43]
Presumably this history was obtained from Dr Tay.
[43] PFACB 32
48On 13 September 2004, Dr Tay’s notes indicate he referred the plaintiff to a neurosurgeon, but the plaintiff never saw one because the WorkCover agent did not admit liability,[44] and a WorkCover claim was lodged on 16 September 2004.[45]
[44]T25
[45]DACB 3
49On 12 October 2004, the plaintiff was seen by Dr Ralph Poppenbeek on behalf of the defendant. Dr Poppenbeek reported:
“• An exact diagnosis is difficult to offer without further investigation. Mr Vinen has signs of neurological deficit in his right lower arm, which appears to be predominantly in the C6 nerve root distribution. Of equal importance, he has a very restricted cervical spine movement and is very tender in the neck. … .
•I therefore feel that further diagnostic tests are required for accurate assessment of this man’s problem, but it is clear he has a neurological disorder affecting the right shoulder girdle nerve outflow. I think this is consistent with the heavy manual work he describes and on this basis, there does appear to be significant work contribution.
•The period of work absence has been lengthy, but the patient does have severe symptoms. It is pleasing that he has returned to restricted duties, but I do not think that Mr Vinen has any capacity for resumption of pre-injury duties at this stage. He should very severely restrict use of the upper and lower right arm … .”[46]
[46] DACB 9-10
50The plaintiff was then seen again by Dr Tay on 11 November, 2004, who recorded:
“ Now has pain going from [left] shoulder to [left] arm …
CR spine, no tenderness
Thoracic spine: no tenderness
Tender lower trapezius muscle
Refer neurosurgeon Damian Tange.”[47]
[47] DACB 226
51And again, on 25 November 2004:
“Still in pain : mainly [left] shoulder, pins & needles down arm → thumb & index finger
[right] shoulder : not as bad.”[48]
[48] DACB 226
52The plaintiff was provided with a certificate, stating he was unfit for work from 26 November 2004 to 24 December 2004 due to “painful shoulders”.[49]
[49]DACB 226
53The plaintiff did not see Dr Tay for over three months, the next appointment being 7 March 2005. On this day, Dr Tay reported:
“… Did not see any neurosurgeon → was rejected by WorkCover. Since then, got kicked out of home because he couldn’t pay board. On the dole.
Feeling very depressed & angry.
Back still sore – taking girlfriend’s Valium, Endep.
- been drinking daily - 12 cans of beer
- using speed.”[50]
[50] DACB 227
54At this point the plaintiff submits that, at this stage, Dr Tay had no input from a specialist (on the assumption that the WorkCover agent did not send him Dr Poppenbeek’s report). He has continually referred to the plaintiff’s symptoms as right shoulder, or trapezius, or back. The specific reference to “neck” is from:
(a) the physiotherapist, Rob Munro;
(b) the reference by Dr Tay to the plaintiff needing a CT scan after he had spoken to Mr Munro on 8 September 2004;
(c) the clinical history for the 10 September 2004 CT scan;
(d) the reference by Dr Poppenbeek, particularly to right arm symptoms “predominantly in the C6 nerve distribution”.
55It would appear, from the above, that the plaintiff was suffering from significant symptoms emanating from the neck and upper back. It is also clear from Dr Tay’s clinical notes, and certainly from his visit on 7 March 2005, the plaintiff was in a bad way, both psychologically and physically, and from 22 March 2005, he commenced prescribing Zoloft and Tramal.[51].
[51] DACB 227
56In the next three visits – 15 April 2005, 26 April 2005 and 27 April 2005 ꟷ and further, on 5 May 2005, Dr Tay described back pain in the neck, back and arms, and referred the plaintiff for a CT scan of the thoracic spine.[52]
[52] DCB 228
57There then appears to be a gap in the treatment until the plaintiff was seen on 10 November 2005 by anaesthetic pain specialist, Dr Timothy McCarthy, on referral from Dr Tay. Dr McCarthy noted extremely disabling neck and upper back symptoms, and intense headaches, and stated:
“Thank you for asking me to see Matthew about his bilateral neck and shoulder pain.
… his problems began in April 2004 when he was working for the Pot Belly Stove Company.
… The pain … extends from his neck bilaterally through the shoulders and into the chest and interscapular region. … The pain is extremely disabling and even on light duties he suffered intolerable pain. He rated his pain today as 8/10 and says it is constantly around that level. He also suffers from intense headaches. He cannot sleep well, an hour at a time at best. He is becoming quite depressed.
…
EXAMINATION
“… all neck movements appeared painful … He was exquisitely tender over the cervical spine bilaterally and into the muscles of the shoulder girdle and arm. … .”[53]
[53] PFACB 53
58Apparently Dr McCarthy was puzzled why the plaintiff was no longer on WorkCover. He was to arrange an MRI scan and plan treatment after that. There is apparently nothing in Dr Tay’s notes to indicate that the MRI scan or further review took place.
59Accordingly, at this stage, there is prima facie evidence that the following conclusions can be drawn.
· That the plaintiff was likely suffering from signs of neurological deficit in his right lower arm, which appeared to be predominantly in the C6 nerve root distribution, together with a very restricted cervical spine movement, accompanied by tenderness, as found by Dr Poppenbeek on 12 October 2004, and is consistent with the findings and histories taken by Dr McCarthy, Mr Munro and Dr Tay.
· Dr McCarthy has a clear history that the plaintiff’s complaints had been continuing since the 2004 work injury and he is pointing to pathology into the neck.
· It is clear that, from the time the plaintiff saw Dr McCarthy, he was clearly resistant to specialist referral and appropriate treatment, and was, unsurprisingly, psychologically affected by his experience.
60On 9 February 2006, Dr Tay referred the plaintiff to a pain management clinic.[54] There is no indication the plaintiff attended, although on 4 August 2006, Dr Tay took the following history: “Been in Queensland for 2/12. Just got back & best mate threw himself off West Gate. Didn’t go to the Pain Clinic past 2/12”,[55] and he referred him to a rheumatologist.
[54] DACB 232
[55] DACB 234
61Thereafter, Dr Tay continued to take intermittent histories with respect to neck, shoulders, back and arms. For example:
· 5 March 2005 ꟷ “Still getting pain in neck, back, arms”[56]
· 27 February 2006 ꟷ “Neck, [left] shoulder area very painful[57]
· 31 March 2006 ꟷ “Pain in neck, [left] shoulder”[58]
· 4 August 2006 – “Only occasional Panadeine Forte/Tramal, but still taking Endep 50 mg for neck. Been waking up with pain and stiffness at night”
· 28 November 2006 – “Sore neck”[59]
· 15 December 2006 – “Neck, back pain, going down to [left] arm, pins and needles in both hands”[60]
· 22 January 2007 – “Suggest that he should see either rheumatologist or go to pain clinic”.[61]
[56]DACB 228
[57]DACB 232
[58]DACB 233
[59]DACB 234
[60]DACB 234
[61]DACB 233, 234 and 235
62Dr Tay notes on 5 February 2007, the plaintiff was attacked on 2 February 2007 when he was stabbed in the left arm, left side and he was kicked and punched in the back and head. Dr Tay examined the plaintiff, and apart from minor bruising and lacerations, he did not complain of any ongoing problems and, in particular, he did not complain about any exacerbation to his neck, back or other symptoms.
63Defence counsel submitted that these headaches probably relate to the assault on 2 February 2007. The plaintiff, on the other hand, noted that the headaches are described as “chronic” and, further, Dr McCarthy had a note the plaintiff had been complaining of intense headaches in conjunction with his neck, back and shoulders, and he was describing a chronic situation at that time.
64Defence counsel submitted that Dr Tay differentiated between the “back” and “neck” on a number of occasions in his notes. The plaintiff, on the other hand, submitted that the reference to “back” in Dr Tay’s notes is consistent with the constellation of symptoms of which the plaintiff complained to Dr Tay, Mr Munro, Dr Poppenbeek and Dr McCarthy, including shoulders, neck, upper back and trapezius. It is also quite clear from the clinical notes that Dr Tay was struggling with the plaintiff’s unremitting pain. Despite a number of referrals, the plaintiff did not attend specialist referrals, apart from Dr Timothy McCarthy in November 2005. It is also clear from the clinical notes that the plaintiff was in a bad way psychologically during this time.
65In October 2007, the plaintiff recommenced work at RF Industries as a factory hand.[62] He had been absent from work for over three years. The plaintiff submitted:
“There is nothing to indicate that prior to his injury he was work adverse and according to his employer, Bob Austin, a managing director of the employer, the Plaintiff had a good attendance record and was a good worker and “we want to hang onto him as an employee”.[63] Apart from his time following a knee injury in 2000, the Plaintiff was in constant work before the 2004 work injury and in re-examination, he described that work as heavy work.”[64]
[62]DACB 238
[63] PFACB 175-176
[64] T75 ꟷ T77
66Thereafter, on 13 February 2008, Dr Tay[65] noted: “Been working since October 2007.” During 2008 and 2009, there are references to headaches, migraine and in October 2009, “[b]ack sore”.[66]
[65] DACB 238
[66] DACB 242
67Further, when the plaintiff returned to work in October 2007, he did not return to any heavy work.
68Thereafter, there are references to Dr Tay’s symptoms, including:
· 10 June 2008 – “Headache since yesterday”[67]
· 28 April 2008 – “Bad headache today”[68] [not checked]
· 18 August 2008 – “Headache today”[69]
· 10 October 2008 – “Woke up with migraine today”[70]
· 23 October 2008 – “Headache all day”[71]
[67] DACB 239
[68] DACB 240
[69] DACB 240
[70] DACB 241
[71] DACB 241
69Thereafter, the plaintiff changed employment to Burdon’s Plumbing as a counterhand and then as assistant manager.[72]
[72]PACB 30
70He continued to work there until he changed jobs to Keble’s as an assistant manager. There were relevant clinical findings as follows:
· 18 June 2012 – “Headache, sore back”[73]
· 25 June 2013 – “Back sore again”
· 6 January 2014 – “Hurt back helping son. Tramadol 200”[74]
· 24 February 2015 “Neck and back pain for 4 days”[75]
· 2 March 2015 “Back still painful”.[76]
[73] DACB 247
[74] DACB 250
[75] DACB 206
[76] DACB 206
71Between July 2015 and 15 October 2016, Dr Tay referred the plaintiff to a chiropractor.[77] When the plaintiff attended the chiropractor, Dr Simone Abar, on 20 October 2015, he described his major complaint as “Chronic Back Pain mainly top of spine”[78] and says that he has “constant neck pain, constant neck stiffness, constant upper back problems and frequent headaches”[79].
[77] DACB 203
[78] PFACB 161
[79] PFACB 162
72The plaintiff submits that the whole of the evidence demonstrates that when Dr Tay is referring to “sore back”, it includes the symptoms the plaintiff has been suffering from since August 2004, including neck and upper back. The defendant, on the other hand, submits that Dr Tay must know the difference between “neck” and “back,” and that the notes must speak for themselves. The plaintiff submits that the clinical notes accompanying the CT scan report of 10 September 2004, report: “Clinical history: 23 year old male with painful neck and right shoulder”,[80] and it was submitted that this history could only have come from Dr Tay after he had spoken to Mr Munro, the physiotherapist on 9 September 2004.
[80]PFACB 32
73Further, Dr Tay has the following clinical notes:
· 24 February 2015:
“Neck and back pain for 4 days. Also sore base of thumbs.”[81]
[81]Typed progress notes which run from DCB 1119-221
· 19 March 2015:
“Back being painful again. Neck also sore.”[82]
[82]DACB 205-206
· 22 January 2018:
“‘Severe neck pain last few days, being seen chiropractor. Went to Maroondah Hospital yesterday.
Pain goes down right arm, but has pins and needles in left hand.
Also had a fall last night, hurts chest.
… .”[83]
· 28 June 2018:
“Neck and back been sore.
His solicitor says he needs to see a neurosurgeon.”[84]
[83]DACB 196
[84]DACB 190-191
74In July 2018, Dr Tay referred the plaintiff to orthopaedic surgeon, Dr Kristopher Lundine, who took a history:
“… upper back/neck and arm pain
… stemming from work injury many y[ea]rs ago
…
intermittent but progressive upper back and neck pain that radiates into both arms … .”[85]
[85] PFACB 55
75On 30 August 2018, Dr Tay wrote to the WorkCover Agent, noting:
“… Matthew injured his back in August 2004.
…
… He continued to experienced (sic) back pain. … .
His back pain never got better … .
He is exploring other remedies, including surgery, so he does not rely on pain killers.
…”.[86]
[86] PFACB 39
76The plaintiff submits it is notable that the report to the insurer came after Dr Lundine, the treating orthopaedic surgeon, had written to Dr Tay on 26 July 2018, noting:
“… upper back/neck and arm pain
…
intermittent but progressive upper back and neck pain that radiates into both arms, L>R down to radial side of hands and fingers.”[87]
[87] PACB 55
77And Dr Tay continues to describe the problem as “back”.
78Again, in a form filled out to the WorkCover agent, dated 10 September 2018, Dr Tay describes, “Matthew has been working as a sales person despite constant back pain”[88] and, “[h]is condition is a recurrence and now exacerbation”.[89]
[88]PACB 40
[89]PACB 41
79Dr Lundine’s physical findings included:
“…
reports decreased sensation left C6 dist
pain left shoulder with ER and biceps activationmild pain right shoulder but not as bad as left
MRI – multilevel degen – worst t C5/6 with evidence of foraminal stenosis.”[90]
[90]PACB 55
80Dr Lundine then writes, in a report dated 11 September 2019, to the following effect:
“Matthew Vinen is a 38 yr male in my Orthopaedic spine practice that suffers from neck and left arm pain secondary to a work related injury. I have been following him since mid-2018 and trying to manage his pain using non-operative measures including a left C5/6 foraminal corticosteroid injection that gave him short term pain relief. Unfortunately he continues to suffer from daily pain significantly limiting his ability to work and perform his normal daily activities
MRI demonstrates severe left C5/6 foraminal stenosis consistent with his signs and symptoms. I think he would benefit from a C5/6 anterior cervical discectomy and fusion. The item numbers for this procedure would be 51011, 51021, and 51041. With this letter I seek WorkCover approval to proceed with this surgery for Matthew Vinen.”[91]
[91]PACB 57
81On 21 February 2020,[92] Dr Tay noted that the plaintiff has been referred for pain management and referred him to Mr Paul D’Urso, neurosurgeon. It is noteworthy that, on 3 March 2020,[93] Dr Tay is still describing the plaintiff’s condition as “[b]ack pain – acute on chronic”. Thereafter, it is “back pain” or “[n]eck and back pain”.
[92] DFACB 171
[93] DFACB 171
82The plaintiff also submitted that, on 18 March 2020, in his letter to Dr Tay, treating neurosurgeon, Mr D’Urso, is offering the plaintiff a two-level fusion for his radicular symptoms, specifically for severe C5 nerve root and C6 nerve root compression.
83In any event, Dr Tay has clinical notes to the following effects:
· 28 March 2019 ꟷ “Back and neck pain, pins and needles in left upper limb and left thumb and index finger”[94]
[94]DACB 183
· 12 September 2019 ꟷ “Neck and back pain”[95]
· 26 June 2019 ꟷ “Neck-pain Back pain”[96]
· 19 November 2019 ꟷ “Back and neck been very painful. Been seeing chiropractor for treatment.”[97]
· 3 December 2019 ꟷ “Neck and back pain”[98]
· 14 March 2020 ꟷ “Neck - Pain”[99]
· 15 June 2020 ꟷ “Back, neck pain. Had migraine for 4 days”[100]
· 27 July 2020 ꟷ “Back and neck pain”[101]
· 18 September 2020 ꟷ “Neck and back been quite painful”[102]
· 28 September 2020 ꟷ “Struggling with neck and back pain”[103]
· 2 October 2020: “Neck – Pain”; “Back pain – chronic.”[104]
[95]DACB 178
[96]DACB 178
[97]DACB 175
[98]DACB 175
[99]DACB 171
[100]DACB 165
[101]DACB 162
[102]DACB 157
[103]DACB 157
[104]DACB 156
84As to the differentiation between back and neck pain, the defendant submitted:
“The Plaintiff in cross examination suggested that he had difficulty distinguishing between his neck and his upper back.[105] As was put to him in cross examination, however, the progress notes of Dr Tay demonstrate the Plaintiff has been able to differentiate between neck and back pain.[106] The Defendant submits the clinical records of Dr Tay are detailed and do clearly differentiate between the neck and the back and that the Court ought to accept that the doctor has faithfully recorded what the Plaintiff reported to him.
Furthermore, the Defendant submits the Court ought not accept the Plaintiffs assertion that when he complained to his doctor about his "back? he meant the very top of his back and his neck.[107] While the Plaintiff asserts that he is ‘not a doctor’ and unable to ‘discern the two different parts’[108], he has demonstrated knowledge of terminology such as ‘It’s the whole trapezius. It links my shoulders, my neck and the top of my back. It’s the whole area, always has been’.”[109]
[105]T40, L12-15 and T44, L14-17
[106]T40, L25-28 and T44, L18-25
[107]For example at T57, L12-15
[108]T58, L16-19
[109]Defendant’s written submissions, paragraphs 8(f) and 8(g) at pages 7-8
85On the other hand, the plaintiff submitted:
“It is our submission that the Plaintiff presented as a frank witness, showing a preparedness to make concessions, for example, that some of the assertions in his job application in 2013 were untruthful[110]. The Plaintiff gave evidence that he did not have upper back symptoms prior to his work injury in 2004[111] and that the symptoms from the work injuries of 2004 had continued over the years to the present time[112] and he has been taking painkilling medication consistently prescribed by Dr Tay for the whole time since he suffered the injury in 2004[113].
There is no suggestion by the Defendant in this case that the Plaintiff had pre-existing cervical pain or symptoms. The Defendant contends that there was no injury to the thoracic spine as a consequence of the 2004 work accident. We contend this is clearly contradicted by the medical records set out above, noting particularly Mr Munro who noted significant tenderness in the thoracic spine and there was significant complaints of upper back pain as set out above.”[114]
(sic)
[110] T55
[111] T-27, T35, T75, T76, T77 and T78
[112] T57, T79, T82 and T83
[113] T47
[114]Plaintiff’s written submissions, paragraphs [37] and [38] at pages 15-16
86The plaintiff further submitted, as to the issue of causation:
“The suggestion is made in the Defendant’s submissions that the Plaintiff had pre-existing thoracic spine pain[115]. In relation to that, the Plaintiff makes the following submissions:
· The Plaintiff gave evidence that he did not have upper back symptoms prior to his work injury in 2004.[116]
· The CT of the thoracic spine dated 4th February 2014[117] is unexplained and does not appear to correlate with any clinical note or any explanation and the Plaintiff was not cross-examined on this.
· Again there is no reference to the clinical note of Dr Tay on 31st March 2006 – ‘Since 18yo started with upper back pain …’[118] and the Plaintiff was not cross-examined about that.
· There is no contemporaneous note of upper back pain prior to the work injury in 2004 and given the Plaintiff’s pursuit of heavy work prior to the work with the Defendant, if there was any upper back condition, then the Plaintiff was not unduly troubled by it and if it did exist, it is not surprising that 18 years later he cannot recall it.
· We further say that in any event any upper back condition or injury to the thoracic spine is not, according to the specialists, a significant part of the Plaintiff’s present condition.
It is clear from all Dr Tay’s reports[119] that he expresses the firm view that the Plaintiff’s continuing symptoms commenced with the work injury in 2004. Dr Tay has been attending the Plaintiff since 2003 and has recorded numerous attendances on the Plaintiff after the work injury of 2004. His expression of opinion as to the origin of the Plaintiff’s present symptoms cannot be lightly dismissed. … .”[120]
[115] Defendant’s submissions at paragraph12 et seq
[116] T27, 35, 75, 76, 77 and 78
[117] PFACB 34
[118] DACB 233
[119] PFACB 39-50
[120]Plaintiff’s written submissions, paragraphs [39]-[40] at pages 16-17
87As to the causation of the symptoms, treating neurosurgeon, Dr D’Urso, says “It would appear the symptoms were precipitated by the workplace injury”.[121]
[121]Plaintiff’s written submissions, paragraph [42] at pages 18
88Further:
“Mr Grossbard, orthopaedic surgeon on behalf of the Plaintiff, concludes that the Plaintiff suffered the injury as a consequence of the 2004 work injury and had developed progressive and degenerative disease of the cervical spine. On the 22nd February 2022, he concludes that the Plaintiff has an aggravation of cervical spondylitis resulting in bilateral C6 radiculopathy as a consequence of the 2004 work injury.”[122]
[122] PFACB 88
89Dr Simone Ryan, occupational physician for the defendant, saw the plaintiff on 25 June 2019 and took a history that:
“… he has significant spasms in his neck and down through his upper trapezius region into the thoracic spine region … .”.[123]
[123] DACB 14
90Dr Ryan noted the MRI findings and concluded:
“… This cervical spondylosis, as identified by Mr Vinen’s MRI scan, is clearly not that of an aged related degenerative change of a 38 year old otherwise well person.”[124]
[124] DACB 14
91She further noted:
“He had obvious cervical/thoracic muscular spasm over the paraspinal musculature of those areas of the spine. There was guarding over the cervical spine and left sided paraspinal musculature. He had obvious and significant decreased sensation of the bilateral upper limbs, worst on the left and specially at C5/6. He has some motor weakness at C5/6 on the left.”[125]
[125] DACB 15
92She concluded:
“Mr Vinen has very significant multi-level cervical spondylosis which is deemed, in my opinion, to be an accelerated degeneration secondary to a workplace injury from 2004.”[126]
[126] DACB 15
93Associate Professor Romas, rheumatologist, for the defendant, states:
“He now has a cervical spine condition which is still materially contributed to by the accepted neck injury.”[127]
And
“Unresolved neck injury with chronic left C6 radiculopathy.”[128]
[127] DACB 29
[128] DACB 28
94Further, Associate Professor Romas states:
“Chronic radiculopathy is often resistant to surgical intervention … .
The window of opportunity for surgical intervention was perhaps in the first few years after the injury … .”[129]
[129] DACB 28-29
95Occupational physician, Dr Mary Wyatt, reported to the defendant on 13 August 2021.[130] At the end of her report, it could be said she was somewhat equivocal on the question of causation; however, I note the following in her report:
[130]DACB 34-43
· The plaintiff said his neck problem was ongoing over the years and he had various reviews regarding treatment options. He was taking analgesics.
· He said he could basically not continue to put up with the pain and last worked in April 2021. He said the pain has been a little easier to manage since then, particularly on the weeks he does not have his children. He said there was a family breakdown at the time he stopped work and, since that time, his two young children have been with him for a week and then with his ex-wife for a week.
· The plaintiff said his pain has been in his neck and upper back, with pain radiating into both arms.
· Over the years, he has seen chiropractors, physiotherapists and pain-management specialists. He said two had recommended he stay on the opiates. He found physiotherapy of no benefit, but said chiropractic treatment had helped him to some degree.
· He had one neck injection some time, ago but said it made his pain worse.
· A ketamine infusion has been recommended, and he is awaiting approval for that.
· The plaintiff was advised to undergo surgery, though when advised of the potential pros and cons of surgery, decided against it.
· The plaintiff described having migraines associated with his neck problem. They occur intermittently and are disabling. He has Imigran, which may work if he takes it early enough.
· The plaintiff described having pain from the top of the neck and down to the upper back, affecting both shoulders and both arms, left worse than the right.
· He experiences three to four migraines a month and will be in bed for two to three days with a migraine. Aggravating factors include sitting for long periods and standing for long periods.
· He experiences severe pain, with coughing/sneezing and when sleeping in certain positions at times.
· The plaintiff described his sleep as being poor.
· He pays neighbours to mow the lawns. He is able to drive, but will need to take a break after driving for twenty-five to thirty minutes.
· In terms of treatment, he takes Celebrex, 100 milligrams twice a day; Topamax, 25 milligrams twice a day; Valium, 4 milligrams up to three to four times a day; Palexia, 150 milligrams twice a day; Clonidine, 100 milligrams twice a day; Mirtazapine, 40 milligrams at night and Norspan patches.
96On examination, Dr Wyatt noted, inter alia, “[n]eck movements were somewhat restricted”,[131] but Dr Wyatt was unable to complete a neurological examination. However, she noted on previous occasions, with other practitioners:
“… there was guarding of the muscles in the left paraspinal region of the neck, with reduced sensation in the upper limbs, more on the left side … sensation was reduced in the C5/6 distribution and there was some motor weakness in the C5/6 distribution of the left.” [132]
[131]DACB 37
[132]DACB 37
97An impairment assessment in December 2020, awarded an impairment on the basis of a radiculopathy arising from the neck together with muscle spasm. There was also reduced left biceps mass, weakened abduction on the left and mildly weakened elbow flexion. Associate Professor Romas had considered:
“… the biceps, triceps and supinator reflexes were reduced in the left arm compared to the right arm. Reduced sensation was advised in the left C6 dermatomal distribution.”[133]
[133]DACB 37
98Further, Dr Wyatt noted that Mr D’Urso, treating neurosurgeon, considered there was significant weakness and shoulder function, but reflexes were symmetrical at each level. “He indicated sensation was reduced in the left forearm, thumb and finger in a C6 nerve distribution”.[134]
[134]DACB 38
99As to investigations taken, Dr Wyatt noted an MRI scan of the cervical spine, dated 22 January 2018, concluded:
“Cervical spondylosis, most severe at C5/6. Mild central canal stenosis at this level. Multilevel significant foraminal stenosis, high grade on the right at C3/4, C4/5 and C5/6. Moderate to high grade right C6/7 foraminal stenosis. There is compression of the right C4 to C7 nerves.
On the left, is multilevel foraminal stenosis, most severe and high grade at C5/6. High grade left C4/5 foraminal stenosis compresses the C5 nerve. Moderate C3/4 and C6/7 foraminal stenosis also impinges the left C4 and C7 nerves.”[135]
[135]DACB 38
100Further, an MRI scan of the cervical spine, dated 20 August 2018, concluded:
“Severe bilateral foraminal narrowing at C5/6 due to disc osteophyte encroachment, left greater than right.”[136]
[136]DACB 39
101Further, on analysis, Dr Wyatt commented, inter alia:
“The described pain is consistent within the general practitioner’s records from 2004. Initial pain was in the right shoulder and subsequently became more troublesome in the neck over the month following the described onset of pain. There was subsequent pain and symptoms in the left shoulder and arm, which initially seemed to be reported in November 2004. His CT scan was unremarkable, not indicating nerve root compression, though the symptoms were of sufficient severity to warrant referral to a neurosurgeon by March 2005.”[137]
[137]DACB 40
102Further, Dr Wyatt stated, following the MRI scan of the cervical spine in January 2018:
“… By this stage, some 14 years following the initial CT of the neck, there was diffuse and significant spondylotic changes with foraminal stenosis from C3/4 to C7/T1. Subsequent scans of the neck show similar findings.”[138]
[138]DACB 40
103As to treatment, Dr Wyatt noted it had been conservative and, in the early years post-injury, he had analgesics, physiotherapy and chiropractic treatment. She stated, further:
“When Mr Vinen’s neck problems seemed to become more troublesome once again around 2013 and in the latter years, he has taken further analgesics, with the introduction of opioids. … Surgery has been recommended, though Mr Vinen is understandably wary of proceeding with surgery.”[139]
[139]DACB 41
104As to post-injury employment, Dr Wyatt stated:
“Post-injury Mr Vinen was out of work for years and then took on less demanding roles. He worked for two different companies on a long term basis, doing counter sales work and working as the assistant manager in both locations. Neither involved unduly taxing tasks on the neck. Mr Vinen continued working up until early 2021. The clinical information suggests he was struggling, seeking further medical assistance from around 2019 onwards.”[140]
[140]DACB 41
105As to the plaintiff’s current physical condition, the plaintiff indicated that his spinal complaint significantly limited his capabilities, and it was her opinion that his pain and restrictions had an organic basis. She stated:
“… His reported symptoms are in line with the investigations. It is likely his mental state is contributing to the situation. It is more challenging to cope with a pain problem if we are not in good mental shape.”[141]
[141]DACB 41
106As to causation, Dr Wyatt stated:
“On the whole, it is not expected that a single lifting episode such as this would result in a long term neck problem, and I would not expect the nature of that incident to contribute to advanced cervical spondylosis or degeneration as it is called in the neck.
On the other hand, Mr Vinen did have radicular symptoms at the time, similar to his current symptoms, despite his CT scan being normal back in 2004.”[142]
[142]DACB 41
107Dr Wyatt then stated:
“His neck problem seems to have abated over the years, before becoming increasingly troublesome over the last five years.
…
There is no evidence he had neck problems prior to 2004.
The core issue is whether Mr Vinen had a constitutional problem that caused complaints and the work was a significant contributing factor back in 2004 to his neck complaints at the time, and whether he would have gone on to have neck problems regardless of the 2014 injury.”[143]
[143]DACB 42
108Thereafter, I note Dr Wyatt’s opinion, given frankly to the effect:
“I have tried to think through the answer to this question in a number of ways and ultimately do not feel confident answering the question. There are arguments based on occupational epidemiology and what we would expect to say that this is a constitutional problem and there are other arguments to suggest the incident materially contributing to his problems, which have been ongoing. I would like to be able to provide you with an answer but do not feel I can in the circumstances.”[144]
[144]DACB 42
109As to the prognosis, Dr Wyatt stated:
“Mr Vinen is likely to have continued similar symptoms into the foreseeable future. Noting the changes in his cervical investigations, his problem may continue to become more troublesome or may stay much the same. Management of his mental state will be important in the circumstances to assist him to cope with his ongoing pain. I understand his reluctance about surgery, particularly noting there are changes at multiple levels and his symptoms affect multiple areas in his arms, in line with multilevel foraminal stenosis. A pain management program is recommended to help Mr Vinen enhance his level of self-management. A ketamine infusion may assist to reset the situation and hopefully allow continued reduction in opiates.”[145]
[145]DACB 42
110As to fitness to work, Dr Wyatt stated:
“Mr Vinen appears to be struggling at this point. I do not think he is fit to return to work at the moment, though with improvement in his mental state and a greater ability to self-manage his pain, I think there would be reasonable prospects for him to resume his role though perhaps working fewer hours a week, in the order of 25 to 30 hours a week. His duties in counter sales and as an assistant manager were not physically taxing.
Work restrictions are to avoid overhead activities, a lot of repeated outreaching with the arms, and working with the neck in awkward positions, such as looking upwards regularly or needing to turn the neck to the side repeatedly. The same issues apply with suitable employment. I do not think one could classify Mr Vinen as fit for suitable employment at this stage, though with better self-management strategies and improvement in his mental state, I would expect him to be fit to resume suitable employment.”[146]
[146]DACB 42-43
111In a follow-up report dated 22 August 2021, Dr Wyatt considered that the plaintiff may be able to work in certain light work occupations, as set out in a Recovre report, dated 19 August 2021. Although he was not currently ready for work, she considered that working twenty hours per week in early stages would be preferable and it is expected that his hours of work could gradually increase over time.
112The defendant also relied on the opinion of neurosurgeon, Associate Professor Graeme Brazenor, in his report of 2 April 2022. The defendant submitted that, while Associate Professor Brazenor did not examine the plaintiff, he did have regard to extensive documentation provided to him by the solicitors for the defendant, with a letter of instruction from the defendant’s solicitor, dated 24 March 2022[147] and the enclosures thereto.[148] After looking at all the material, Associate Professor Brazenor concluded:
“Mr Vinen may have had minor exacerbation of neck symptoms from age-appropriate degenerative disease in the first months after commencing employment with Pot Belly Stove Co. Pty Ltd on 19 July 2004, but the documentary evidence is clear that the prescription of tramadol/narcotic did not begin until seven months later, at the end of March 2005, months after Mr Vinen ceased work for Pot Belly Stove Co. Ply Ltd. Narcotic prescription has continued since then with some brief interruptions, with no justification found from radiological investigations until the first magnetic resonance scan of cervical spine performed 22 January 2018, the day after Mr Vinen’s acute presentation to Eastern Health Emergency Department with new neck and arm pain following a fall.”[149]
[147]DACB 271-291
[148]DACB 289-291
[149]DACB 73
113Defence counsel then submitted as follows:
“Other medical practitioners who have suggested an ongoing causal relationship between events with the employer in 2004 and the Plaintiff’s current cervical spine condition have not had the benefit of the complete clinical history, as revealed by the records. The Defendant therefore submits the Court ought prefer the views of Dr Brazenor to the views of those other medical practitioners.[150]
[150]Defendant’s written submissions, paragraph [10], page 10
114Accordingly, the defendant submitted that the plaintiff no longer suffers from any compensable injury associated with the cervical spine.
115In my view, despite the extensive documentation, Associate Professor Brazenor did not have the advantage of examining the plaintiff or taking a detailed history from him face to face. Further, as to the suggestion that he “may have had minor exacerbations of neck symptoms for age-appropriate degenerative disease in the first months after commencing employment with Pot Belly Stove Co Pty Ltd”[151] is against the weight of the evidence of the other doctors and, in particular, defence occupational physician, Dr Ryan who stated that the MRI findings in 2019, “is clearly not that of an age related degenerative change of a 38 year old otherwise well person”.[152]
[151]DACB 73
[152]DACB 14
116Also, I do not share Associate Professor Brazenor’s scepticism concerning the reliability of the plaintiff’s history of suffering the original injury. It is clear from the employer, Bob Austin, that the plaintiff was a reliable and honest person. Also, I accept the plaintiff’s submission that Associate Professor Brazenor “has not properly considered the reports of Mr Munro, Dr Poppenbeek and particularly Dr McCarthy” with respect to their clinical findings at relevant times of radiculopathy in a C5-6 distribution. It is clear enough, in my view, that the plaintiff has suffered ongoing, if fluctuating in severity, symptoms in his cervical spine from the onset in 2014 at work.
117Accordingly, I find that, at all material times, the plaintiff was trying to honestly answer questions put to him in cross-examination and I accept he suffered a cervical discal injury at the outset of the injury, and has continued to suffer from symptoms in that regard until the present time. I also find that those symptoms contributed to him ceasing work in April 2021, after having performed a number of jobs on a light-work basis to that point. I consider that his work ethic at all material times, until that time, could be labelled “stoic” and that, insofar as the cessation of work was chronologically associated with the break-up of his marriage, it may well be that the latter event did reduce his resistance in being able to cope with the ongoing pain.
Loss of earning capacity
118It is common ground the plaintiff was under twenty-six years of age at the time of suffering his injury and as such, the formula in s134AB(38)(f) of the Act does not apply. This means the Court:
“… may have regard to the probable income from personal exertion which the plaintiff would have earned but for the injury over the worker’s probable earning life. This means the usual common law position prevails.”[153]
[153]See Accident Compensation (Common Law and Benefits) Bill, Second Reading Speech (23 May 2000); M Gould
119Accordingly, in considering a loss of earning capacity and whether the plaintiff has a permanent loss of earning capacity of 40 per cent or more after the date of hearing and into the future,[154] I find:
(a) the “3 years before and 3 years post injury period” is irrelevant;
(b) the issue of “suitable employment” is not relevant save for by reference to s134AB(38)(g) of the Act;
(c) A court can have regard to the availability of employment.
[154] Section 134AB(e)(iii) of the Act
120As to the principles applicable concerning loss of earning capacity, I refer to the judgment of Heydon J (as he then was) in State of New South Wales v Moss,[155] as follows:
(a) Evidence of past economic loss is some, though not conclusive, evidence of reduced earning capacity;[156]
(b) It is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what he is likely to earn after it;[157]
(c) Where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work he can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity;[158]
(d) The compensable loss is not a loss of income, but the loss of capacity to earn income in a manner productive of financial loss. It is an issue of calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities;[159]
(e) The mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum;[160]
(f) The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.[161]
[155] (2000) 54 NSWLR 536
[156] Ibid at paragraph [64]
[157] Ibid at paragraph [66]
[158] Ibid at paragraph [69]
[159] Ibid at paragraph [71]
[160] Ibid at paragraph [72] and [74]
[161] Ibid at paragraph [87]
121The following evidence concerning loss of earning capacity, in my view, is of relevance in determining whether the plaintiff has suffered a permanent 40 per cent loss:
(a) At the time of suffering his injury, the plaintiff was engaged in heavy, repetitive work of a type that he cannot return to;
(b) Post the relevant employment, the plaintiff had been engaged in a number of lighter work positions, despite ongoing cervical pain and treatment. I consider that he ceased work significantly because of the pain suffered in the cervical spine was subjectively getting worse and was consistent with the deteriorating radiological profile;
(c) The plaintiff gave evidence, which I accept, that he intended to open his own business in the long term, and it was important to him to finish his plumbing apprenticeship;
(d) All of the medical evidence supports the proposition that the plaintiff cannot resume his pre-injury employment or heavy, repetitive physical work.
122In the course of the hearing, the issue was raised whether the relevant test brought into play the concept of “suitable employment”.[162]
[162]T11
123The plaintiff submitted that suitable employment, as set out in s134BV(3)(f) was not relevant. The defendant’s response, while not much different, was they would submit that the forms of employment that have now been put forward by Recovre constitute suitable employment for the plaintiff. It was the plaintiff’s submission that the above requires some clarification. The provisions of s134AB(38)(e)(i)-(ii) make clear that the provisions of sub-paragraph (f) have no application. This means that the notional assessment of “with injury” earning capacity based on what the plaintiff could earn from suitable employment has no part in this assessment.
124The assessment, as the outline makes clear, is a common law assessment and applies common law principles. The underlying principle for setting out valuation of future loss of earnings was set out by the High Court in Malec v Hutton,[163] where Deane, Gaudron and McHugh JJ said:
“If the law is to take into account future or hypothetical events in assessing damages it can only do so in terms of degrees of probability of those events occurring. The probability may be very high – 99% or very low – 0.1%, but unless the chance is so low as to be regarded as speculative, say less than 1% or so high as to be practically certain say over 99% the court will take that chance into account in assessing the damages.”[164]
[163] (1990) 169 CLR 638
[164] Ibid at 643
125An example of the practicalities of that assessment is set out in Berthelot v Fleetweld Pty Ltd.[165] In that case, it is clear that his Honour Judge O’Neill considered a wide range of matters. It is particularly noted in paragraph 62 that includes considerations, such as:
· The fact that he has now been unemployed for a period of six years;
· The fact that he would present to an employer with lower back injuries and the natural reluctance of employers to include such a person in the workforce;
· His unimpressive work history.
[165] [2015] VCC 1453
126While availability of suitable employment cannot be dismissed in an assessment of the plaintiff’s overall loss of earning capacity, the factors to be taken into account are broad as indicated above.
127Significantly, the defendant submits that the plaintiff:
(a) has a capacity to perform his former work at Keble’s;
(b) could perform a range of other work;
and it is the plaintiff’s contention that those submission are contrary to the evidence:
“• The Plaintiff himself says that his condition is getting worse, not better[166]. He also said that he liked his job[167]. He took a lot of time off as a consequence of his injury[168] which is supported by the company records[169]. He describes a supporting working environment[170].
•The Plaintiff was cross-examined on the reasons for leaving[171]. It is our submission he gave a credible explanation and his assertion that he left work because his condition was worsening should be accepted, particularly having regard to the medical evidence set out below.
• The Plaintiff ought be accepted when he says that he wished he was still working and he’d love to go back to work if he could, but he simply can’t because he’s not “physically capable of doing it”[172]
• The doctors who examined the Plaintiff after he left work all, at the time they examined the Plaintiff, stated he was unfit for work.
a)Dr Wyatt, who examined the Plaintiff on 9 August 2021, found that the Plaintiff was not fit to return to work[173];
b)Mr Grossbard, who examined the Plaintiff on 22 February 2022, concludes, “in reality, this man would be essentially unemployable in the open labour market”[174];
c)Dr Akil, who examined the Plaintiff on 24 February 2022, concluded that “realistically” he did not have any capacity to return to work given his persistent severe pain down his arms and neck as well as the migraine and given that he is on strong analgesia[175].”[176]
[166] T61, L26, T64, L9 and T74, L26
[167] T52, L5
[168] T57, L3-4 and T57, L12-15
[169] PFACB 184-187
[170] T56, L24- 57 and 1-4
[171] T56, T57
[172] T63.L30 – T64 L5
[173] DACB 42
[174] PFACB 89
[175] PFACB 93
[176]Plaintiff’s written submissions at paragraph [51], pages 23-25
128The plaintiff also relies on the following medical evidence tendered on behalf of the plaintiff after he left work, as follows:
(a) Dr Wyatt, who examined the plaintiff on 9 August 2021, found that the plaintiff was not fit to return to work[177];
(b) Mr Grossbard, who examined the plaintiff on 22 February 2022, concludes, “[i]n reality, this man would be essentially unemployable in the open market”;[178]
(c) Dr Akil, who examined the plaintiff on 24 February 2022, concluded that “realistically” he did not have any capacity to return to work given his persistent severe pain down his arms and neck, as well as the migraine, and given that he is on strong analgesia;[179]
(d) Dr Horsley, who examined the plaintiff on 6 April 2022, concluded that, on his presentation, “he had no capacity for work”.
[177] DACB 42
[178]PFACB 89
[179] PFACB 93
129Further, as to the plaintiff’s future working capacity, it was submitted on his behalf:
“On the 22nd February 2022 Mr Grossbard concluded that he did not believe the Plaintiff could return to his pre-injury employment because of his neck injury and thought he would not be able to do any job involving lifting or repetitive use of his arms. He opined that the Plaintiff’s work capacity was markedly limited for reasons of his limited motion and ongoing significant pain. He concludes, ‘[i]n reality, this man would be essentially unemployable in the open market’[180].
[180] PFACB-89
On the 3rd March 2022 Dr Hazem Akil, neurosurgeon, concluded “it would be very unrealistic to find a job that he can do reliably”[181].
[181] PFACB-93
On the 6th April 2022 the Plaintiff was examined by Dr Robin Horsley. This was a ‘face to face’ rather than by video link. Like Dr Wyatt, she found that based on her examination and his presentation to her on that day that he had no capacity for work[182]. She concluded that now she did not believe that the Plaintiff presented ‘with any reliable, consistent or realistic capacity for work’ and that given her ‘significant disability today’ he had ‘no capacity for work, even on a part-time basis’[183]. Her prognosis for return to work in even a part-time role, working 15-20 hours per week, was guarded at best.
[182] PFACB 117
[183] PFACB 118
‘At this point in time I do not believe that Mr Vinen presents with any reliable consistent or realistic capacity for work. I would be interested to review him after a functional restoration program in a pain management setting and proactive management of his mental health …
Mr Vinen presents with significant disability today and no capacity for work even on a part time basis. It would be in his best interests to return to work on at least a part time basis, 15-20 hours per week in an administrative job. His prognosis for a return to work in such a role given his presentation today is guarded at best, despite his youthful age’[184]
[184] PFACB 118
It is submitted that when undertaking the common law task, whilst the Plaintiff has a chance of returning to some part time administrative work of 15-20 hours, in our respectful submission, it would be erroneous to regard this as indicating that the Plaintiff has a working capacity at common law of something approaching half time.
The Defendant further relies upon the report of Dr Mary Wyatt . She saw the Plaintiff on the 9th August 2021 approximately four months after the Plaintiff ceased work . The following points should be noted:
•She saw the Plaintiff via video conference. This, in our submission, offers an inferior assessment of the Plaintiff’s real disabilities. She expresses the view that the Plaintiff is not currently fit to return to work.
•She said – ‘though with improvement in his mental state and great ability to self-manage his pain I think there would be reasonable prospects for him to resume his role though perhaps working fewer hours a week (25-30 hours)’.
It is noteworthy that not even Mary Wyatt supports the Defendant’s contention that the Plaintiff could perform his former work. It is clear that nothing has occurred since that examination to give any weight to Wyatt’s expectation. Given the very considerable neurological signs, it is not surprising, given that there was no face-to-face examination, Dr Wyatt overrates the Plaintiff’s likely future capacity. Again, Dr Wyatt’s conclusions would not in any way answer the question of the Plaintiff’s future common law loss, taking into account a wide variety of considerations, including whether the Plaintiff could get a job.
The Plaintiff was interviewed by a vocational expert, Ms Katrine Green, in May 2022. She looked at the jobs suggested by Recovre and concluded that the Plaintiff would have significant difficulties with these jobs and in fact that they were unsuitable, particularly if the Plaintiff was required to attend on a consistent, sustained, reliable and permanent basis.[185]
It is our submission that the thrust of the up-to-date medical opinion clearly supports a proposition that the Plaintiff has very little working capacity if any, even on a theoretical basis.”[186]
[185]PFACB 138-143
[186]Plaintiff’s written submissions, paragraphs [52]-[59], pages 26-29
130The defendant argues[187] that the plaintiff was unlikely to complete his plumbing apprenticeship. The plaintiff was adamant, when he was cross-examined on this topic, that he wanted to complete his apprenticeship so that he could go into his own business.[188] There was no evidence to contradict that proposition. The plaintiff clearly had some determination in returning to employment as a plumber as it is clear from the statement of his employer, Bob Austin, that the plaintiff had a good attendance record and “Matt is a good worker and we want to hang onto him as an employee”.[189] My impression of the plaintiff in the witness box was in alignment with that opinion.
[187] Defendant’s submissions. paragraph [39]
[188] T32
[189] PFACB-175-6
131While it is not possible to calculate what the plaintiff could have earned as a self-employed plumber, there is not a contest[190] in this case that an employed plumber is an appropriate guide if the plaintiff has lost that career,[191] and the defendant suggests a figure of $1,816 gross for an employed plumber, annualised at $94,432.
[190]Defendant’s submissions. paragraph [40]
[191]Defendant’s submission. paragraph [40]
132Contrary to the defendant’s submission,[192] Flexi[193] clearly provides a weekly income of $2,284.28 gross per week or an annual income of $118,782 and for a domestic plumber provide the rate of $1,894 or $98,488.
[192]Paragraph [2]
[193]PFACB 51
133Plaintiff’s counsel notes there is very little difference between the domestic plumber rate of Recovre and Flexi, the only difference is Flexi, in their commercial rate. Recovre does not appear to refer to that.
134In their submission, it would be reasonable to look at a figure of something in excess of $100,000 per annum, representing the plaintiff’s “without injury” earning capacity to the present time.
135The 60 per cent is something in excess of $60,000.
136The defendant, on the other hand, submitted that the Recovre figure of $1,816 gross per week, or $94,432 gross per annum, is the appropriate measuring figure, such that 60 per cent thereof would be $60,659 gross per annum, or $1,089.50 gross per week. Defence counsel then compared that figure to the sums earned by the plaintiff, particularly in the financial years 2019 and 2021, producing figures of $60,934, $68,955 and $61,866 respectively. On this analysis, the plaintiff would fail under the relevant test.
137It is clear enough that, if the plaintiff was capable of full-time light work, such that he had been performing in the years leading up to June 2021, on the Recovre figure of some $94,000 annualised, then he would fail the test. Defence counsel contends that the common law test is not significantly different to that of “suitable employment”, as defined in s5 of the Act, principally having regard to:
(a) the nature of the worker’s incapacity and the details provided in medical information;
(b) the nature of the work as pre-injury employment; and
(c) the worker’s age, education, skills and work experience.
138Assuming that the tests, for present purposes, are roughly equivalent, the question, then, is whether the plaintiff has a physical capacity to undertake the duties of the “suitable” work. However, as Ashley and Kaye JJA stated in Richter v Driscoll,[194] at paragraph 76:
“Return to work in employment … requires more than a physical capacity to engage in a task or tasks … .”
[194](2016) 51 VR 95
139The employment must be, as specified in the definition of “no current work capacity”, “suitable employment”. For their Honours, the definition of “suitable employment”:
“... plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise.”
140Their Honours warned:
“… paragraphs (a)(ii), (iii) and (iv) would have no work to do.”[195]
[195] Richter v Driscoll (ibid) at paragraph [76]
141Accordingly, the question whether a worker is able to return to work in suitable employment, according to their Honours:
“... specifically requires consideration of matters travelling beyond physical capacity to perform a task.”[196]
[196] Richter v Driscoll (ibid) at paragraph [77]
142Accordingly, the construction which Ashley and Kaye JJA placed on the definitions of “no current work capacity” and “suitable employment” can be expressed as follows:
“... whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances – these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.”[197]
(Emphasis added).
[197] Richter v Driscoll (ibid) at paragraph [95]
143They further stated:
“The other, closely allied, way in which the matter may be put is shown in the passage of the judgment of Fletcher Moulton LJ in [Cardiff Corporation v Hall [1911] 1 KB 1009], where his Lordship referred to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’.”[198]
[198] Richter v Driscoll (ibid) at paragraph [96]
144Osborn JA agreed with Ashley and Kaye JJA in this regard. His Honour stated:
“The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated. ...
A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.
This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.”[199]
(Emphasis added).
[199] Richter v Driscoll (ibid) at paragraph [143]-[145]
145Accordingly, the restrictions set out in Dr Wyatt’s reports inform, to a large extent, the plaintiff’s capacity to return to work “as a settled member of the workforce”. I do not believe the evidence demonstrates that he will be able to return in the workforce on a regular and reliable basis, his stoicism and good intentions notwithstanding.
146In all the circumstances, I am satisfied the plaintiff does not retain “powers of labour as a merchantable article”.[200]
[200]Richter v Driscoll (ibid) at paragraph [92]
147Leave will be granted to the plaintiff to issue proceedings for economic loss damages.
148Under the principles of Aburrow v Network Personnel Pty Ltd and WorkSafe Victoria,[201] leave will also be granted for the plaintiff to issue damages for pain and suffering.
[201][2013] VSCA 46
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