Vulcan Steel Pty Ltd and Victorian WorkCover Authority v Fullerton
[2014] VSCA 18
•25 February 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2013 0099 | |
| VULCAN STEEL PTY LTD | First Appellant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Appellant |
| v | |
| CLINTON JOHN FULLERTON | Respondent |
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JUDGES: | OSBORN and BEACH JJA and McMILLAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 February 2014 | |
DATE OF JUDGMENT: | 25 February 2014 | |
MEDIUM NEUTRAL CITATION: | [2014] VSCA 18 | |
JUDGMENT APPEALED FROM: | Fullerton v Vulcan Steel Pty Ltd & Anor [2013] VCC 834 (Judge Misso) | |
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ACCIDENT COMPENSATION – Appeal – Serious injury – Pain and suffering consequences established as being at least very considerable – Loss of earning capacity consequences established as being at least very considerable – Applicant under the age of 26 years at the date of injury – Whether applicant established permanent loss of earning capacity which would be productive of financial loss of 40 per centum or more – Adequacy of judge’s reasons – Accident compensation Act 1986, s 134AB(38)(e)(ii).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr J P Gorton SC with Mr R Kumar | Thomsons Lawyers |
| For the Respondent | Mr B W Collis QC with Mr J P Brett | Arnold Thomas & Becker Lawyers |
OSBORN JA
BEACH JA
McMILLAN AJA:
Introduction
Clinton John Fullerton, the respondent, made application under s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) for leave to issue a proceeding for the recovery of damages in respect of injuries suffered in the course of his employment with the first appellant, Vulcan Steel Pty Ltd. The application was heard in the County Court by Judge Misso on 13 June 2013.[1]
[1]We assume that the Victorian WorkCover Authority was joined as a second defendant to that application (and thus became the second appellant in this appeal) in purported compliance with s 134AB(18) of the Act which required a copy of the application under s 134AB(16) to be served on it and each person against whom the respondent claimed to have a cause of action.
The respondent alleged that he sustained injury on 18 January 2005 when he jumped off the tray of a truck in the loading bay at the first appellant’s premises. The surface of the loading bay was concrete. As the respondent landed on the concrete, he said that he felt a sharp pain in his lower back. The injury upon which the respondent relied in his application was said to be constituted by an impairment of the function of the respondent’s lower back. The respondent claimed that this injury satisfied paragraph (a) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act. The respondent’s application for leave was made in respect of both pain and suffering damages and pecuniary loss damages.
On the hearing of the application, the respondent relied upon an affidavit affirmed by him on 22 February 2011. The parties tendered various documents, including medical reports, medical certificates, claim forms, radiology reports, emergency records, clinical notes and vocational assessment reports. The respondent was the only witness to give viva voce evidence.
On 25 June 2013, 12 days after the hearing of the respondent’s application, Judge Misso granted the respondent’s application both in respect of pain and suffering damages and pecuniary loss damages.
The appellants’ appeal is in respect of his Honour’s grant of leave to the respondent to commence proceedings for the recovery of pecuniary loss damages. No complaint is made by the appellants in respect of the leave given to the respondent to commence a proceeding for pain and suffering damages. The appellants’ grounds of appeal are as follows:
1.The learned trial judge erred by treating the evidence of Mr Moran and Mr Schofield and Mr Scott at [56] as being that the respondent had no residual capacity for suitable employment when that was not their evidence, and by otherwise failing to have any or adequate regard to the evidence that although the respondent was unable to return to his pre-injury duties he retained the physical capacity for lighter employment.
2. The learned trial judge erred by limiting his consideration to the respondent’s present capacity and by failing to consider as required by s 134AB(38)(e)(ii) of the Act whether the respondent would continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more, which requires a consideration of the respondent’s capacity to retrain and to perform lighter employment in the future.
3. The learned trial judge’s conclusions that the respondent was incapacitated for the jobs identified by Co-Work and for employment generally and met the criteria for the grant of leave to commence proceedings for the recovery of damages for loss of earning capacity, were against the evidence and the weight of the evidence.
4. The learned trial judge failed to give adequate reasons for his rejection of the evidence of Dr Yong and the occupational therapist Ms Bryant of CoWork Pty Ltd to the effect that although the respondent was unfit for his pre-accident duties he retained a capacity to perform employment.
Background facts
In his reasons for judgment,[2] Judge Misso set out the respondent’s background, the circumstances of the respondent’s injury, and described the respondent’s medical treatment in terms about which the appellants made no complaint before us. His Honour said:[3]
[2]Fullerton v Vulcan Steel Pty Ltd & Victorian WorkCover Authority [2013] VCC 834 (‘Reasons’).
[3]Reasons [8]-[26].
8The plaintiff was born in 1983. He is now thirty years of age. He is a single man. He is in an on/off relationship with his female partner. He has two children by the relationship – a son who was born on 3 February 2008 and a daughter who was born on 18 August 2009. The plaintiff currently lives with his mother in her home in Moe.
9The plaintiff completed Year 8. It would appear that he did not meet the requirements of the school he attended to obtain a pass and to be promoted to Year 9. He was to repeat Year 8. He returned to his school to repeat Year 8, but he left after a few weeks.
10It is not clear from the plaintiff’s affidavit sworn 22 February 2011 what work he undertook immediately after leaving school. He must have been very young. Most children, in my estimation in any event, are about fourteen years of age in Year 8. I assume that the plaintiff was fourteen or fifteen years of age. He engaged in labouring work initially. He worked for a concreter about three years in Springvale. He worked for his father as a fencing contractor for about one and a half years. He worked as a storeman in Keysborough for about a year. He then worked as a labourer for a few weeks before commencing with the first defendant as a storeman in early 2004.
The Plaintiff’s injury
11On 18 January 2005, the plaintiff jumped down off the tray of a truck in a loading bay at the first defendant’s premises. The surface of the loading bay was concrete. As he landed on the concrete, he felt a sharp pain in his lower back.
The Plaintiff’s medical treatment
12The plaintiff saw Dr Li, general practitioner, on 20 January 2005 complaining of lower back pain. On examination, Dr Li found tenderness at L4-5, and a limitation of movement of the plaintiff’s lower back. He prescribed the plaintiff Panadeine Forte and Voltaren for pain relief.
13The plaintiff returned to Dr Li complaining that his lower back had not improved. Dr Li referred the plaintiff to have a CT scan which was taken on 28 January 2005. According to the radiologist, it demonstrated:
… At L5-S1 disc level there is quite a large disc protrusion occurring in the lumbar canal in right para-central position which is deforming the anterior surface of the thecal sac, particularly in the right side of the lumbar canal. A canal stenosis results in this disc protrusion … .
14Dr Li referred the plaintiff to have physiotherapy. He did not attend physiotherapy at that stage. He subsequently referred the plaintiff to Cedar Court in Dandenong for rehabilitation. It is not clear whether the plaintiff attended or not. He says nothing about that in his affidavit.
15Dr Li also referred the plaintiff to Mr Johnson, orthopaedic surgeon, who the plaintiff first saw on 1 September 2005. At the time the plaintiff saw Mr Johnson he told him that he was suffering pain in his lower back with some pain radiating into both of his legs. He said the left leg was worse, with the pain extending to the upper calf. On examination, Mr Johnson found fifty per cent of normal range of movement in the thoraco-lumbar spine, but otherwise no other abnormality in the spine.
16Mr Johnson was uncertain of the cause of the plaintiff’s pain. He appears to have been satisfied that the problem the plaintiff was experiencing with his lower back began at the time of the incident. He considered that the plaintiff presented with a moderate level of disability which he suspected would cause the plaintiff difficulty when engaging in heavy physical work. He suggested that the plaintiff see a rehabilitation specialist. He made appointments for the plaintiff to see Dr Thomas, but the plaintiff cancelled the appointments.
17The plaintiff last saw Dr Li on 17 February 2006. Around that time, Dr Li noted that the plaintiff’s lower back pain had improved with conservative treatment. It would appear that the plaintiff had undergone some physiotherapy by that time. He prescribed the plaintiff Tramal and Voltaren for pain relief. He also noted that the plaintiff had undergone retraining and was working as a security guard. That does not appear to be correct. It would appear that the plaintiff last worked with the first defendant in March or May 2005.
18The plaintiff then saw Dr Hong, general practitioner, on 12 June 2007. She provided a report dated 8 October 2007 which is breathtakingly brief. It merely refers to her diagnosis that the plaintiff was suffering from a degenerative L5-S1 disc with a small annular tear on the right side with a mild disc protrusion, but no neural compression. That was apparently derived by her from an MRI scan.
19Dr Hong referred the plaintiff to Mr Drnda, neurosurgeon, who saw the plaintiff on 30 October 2006. Mr Drnda had the MRI scan referred to by Dr Hong. It was taken on 7 October 2006. He considered that the plaintiff’s pain was Myofascial and was triggered by L5-S1 disc degeneration. He showed the plaintiff some exercises to do to strengthen his core muscles, and suggested that he see a physiotherapist. He advised the plaintiff not to engage in bending or twisting the spine at all, and that he should refrain from engaging in employment which would involve those sorts of movement. He advised him to retrain into work which did not involve physical strain of his lower back. The plaintiff last saw Mr Drnda on 30 October 2006.
20Curiously, the plaintiff told Mr Drnda that he had seen Dr Thomas. I assume it is the same Dr Thomas who Mr Johnson suggested the plaintiff see for rehabilitation treatment. It does not appear that the plaintiff saw Dr Thomas.
21It would appear that the reason why the plaintiff stopped seeing Dr Li, and perhaps the reason why he did not see Dr Thomas, was because he moved to Moe. The plaintiff’s father was unwell, and indeed, so unwell that he passed away due to a liver disorder. The plaintiff continued seeing Dr Li for some time while he was in Moe, but then saw Dr Azad, general practitioner, in Moe on 3 January 2007.
22The plaintiff told Dr Azad that he was experiencing lower back pain and occasional radiation of pain into left side down to his knee. He described the pain as restricting his general activities. He reviewed the plaintiff on 23 April 2007, 17 and 31 May 2007, 27 July 2007, and 30 August 2007. In his report bearing a date stamp of 24 September 2007, he referred to the fluctuating course of the plaintiff’s lower back pain.
23When Dr Azad last saw the plaintiff on 30 August 2007, the plaintiff told him that the pain he was experiencing was not getting any better. He was experiencing pain radiating to the back of his left leg and suffering pins and needles in both legs with that sensation being worse on the left side. On examination, Dr Azad found tenderness and a reduction in the plaintiff’s range of movement. He diagnosed an L5-S1 disc protrusion contacting the right S1 nerve root. He did not consider that the plaintiff was fit for his pre-injury work, and considered that his prospects of returning to work as a storeman were poor. He considered that the plaintiff was fit to perform alternative light duties which did not involve heavy lifting and frequent bending. He lastly considered that the plaintiff’s lower back pain was fluctuating, had not stabilised and was unpredictable and might deteriorate.
24The plaintiff then saw Dr Silver, general practitioner, on 19 July 2011. On that occasion, the plaintiff told Dr Silver that he was suffering from lower back pain which Dr Silver appears to have diagnosed as left L5-S1 sciatica. On examination, he found a reduction in the plaintiff’s range of movement, but no other abnormalities. He was provided with the CT scan, and it would appear he was aware of the MRI scan which Dr Hong and Mr Drnda referred to. He considered that the plaintiff’s prognosis was poor because he had been suffering from lower back pain for six years by that stage. He considered that the plaintiff would continue to suffer from lower back pain and intermittent sciatica which would incapacitate him in the pursuit of strenuous activities. He lastly considered that it was difficult to predict whether the plaintiff would experience any further deterioration in the condition of his lower back.
25The plaintiff ceased work in March or May 2005. He made an attempt to return to work with the first defendant. The attempt failed because the plaintiff experienced continuing lower back pain. The Commonwealth Rehabilitation Service assisted the plaintiff in finding a job with an organisation known as Fence Tech. The tasks he was required to perform involved the manufacture of fencing for swimming pools. He found being on his feet for long periods of time caused an increase in the lower back pain. He ceased that work after three days.
26It would appear that the plaintiff is no longer having any active medical treatment. He no longer has physiotherapy. He stopped that because it was aggravating the condition of his lower back. He no longer uses prescription medication. He said that he is concerned about its use because his father died of liver cancer. The plaintiff now uses Panadol and Voltaren, which he buys over the counter at a pharmacy. He last took Voltaren in the week before the trial. He estimated that he would use medication about four times per week.[4]
[4]References to the transcript and court books deleted.
The respondent’s evidence
In his affidavit in support of his application under s 134AB of the Act, the applicant deposed about his then present condition as follows:[5]
[5]As at 22 February 2011.
My present condition is that I have low back pain, not all of the time but most of the time. In addition, I have some symptoms in my left leg. These are occasional. In addition, I believe that I suffer from depression with anxiety.
The low back pain that I have is present most of the time and varies in intensity. When it gets quite strong, I will lie down on the floor, sometimes with my left leg elevated and sometimes with both legs elevated. I have to do that a few times each week. When I have to lie down I usually lie down for between half an hour and two hours. After that time, the pain eases off a little and I can get up.
Activity brings on increased pain. Examples of things that bring on the increased pain are walking, going to the toilet or lifting. Bending and twisting will also increase the pain. If I walk on level ground, I can usually walk for half an hour to three-quarters of an hour before the pain builds up. However, if I am walking up hill the pain will become quite strong after only five minutes walking. I do as much as I can to help with the household in which I live. I will do lawn mowing but I find that I will frequently have to stop after 10 to 15 minutes. When that happens, I will usually go and lie down. I will be involved in shopping. I do as much as I can.
I am able to drive. However, after driving for about two hours the pain in my lower back will become very bad indeed.
Sometimes I experience pain in my left leg. The pain will go down below the knee into the left calf. This only happens about once every two weeks. In addition, I experience tingling in my left foot from time to time.
Because of the injury I have had to give up an active lifestyle which, before the injury, meant that I could do things like horse riding, going camping and socialising with my friends.
…
Because of the injury to my back I cannot work and apart from my failed attempt to return to light duty employment with Vulcan Steel in 2005 and with Fence Tech in 2009, I have been unable to do any paid work since soon after the injury on 18 January 2005.
The appellants’ case below was that the respondent had a capacity for light work, and that there were identified jobs for which he was fit to perform. The respondent was asked about these matters in evidence-in-chief. He was asked and answered the following questions:
It’s been suggested that you could work as a road traffic controller? - - - Yep.
What is your tolerance of standing? How long can you stand for without significant increase in hour pain if you - - - ? - - - Probably half an hour to an hour.
Would you be able to do a job which involved you standing holding a sign for long periods of the day? - - - No.
It’s been suggested that you be an auto parts sales assistant and you told the vocational assessor that you liked working on cars and had done so in the past. Was that true? - - - Yes.
Are you familiar with the job of an auto parts sales assistant? - - - Yes.
You’ve seen them working and have you visited such stores? - - - Yes, yes.
Would you be able to assist by looking under the bonnets when customers wanted you to assist them? - - - No.
Would you be able to carry heavy auto parts? - - - No.
Would you be able to handle stock on various racks at various levels? - - - No.
It’s finally been suggested that you try a bench assembly of electronic materials. Would you be able to stand or sit bent over a bench and concentrate for long periods? - - - No.
During the course of evidence-in-chief, the respondent also gave evidence as to his inability to cope with the attempts to return to work following his injury. Specifically, the respondent gave evidence that his attempt to return to work for the first appellant in a job involving him working in an office and being taught ‘all the sales part and to deal with customers and stuff’ failed when the first appellant (to use the respondent’s words) ‘put me on something completely different to what they told me … working on the floor colour coding steel that was cut up on the concrete’. The respondent gave evidence that he was unable to cope with this work, and that he lasted only a couple of days performing it.
The respondent was cross-examined in some detail about, amongst other matters, the issue of whether he had a capacity to engage in light work and the various jobs that had been identified. The tenor of the respondent’s responses was that while he would love to work if he could, he did not believe he was physically able to do any of the relevant jobs.
Neither during the hearing of the application below, nor during the hearing of this appeal, was any challenge made by the appellants to the respondent’s credit. Indeed, the judge clearly accepted the respondent as a credible witness – and no attack was sought to be made by the appellants on his Honour’s conclusions in this regard on the present appeal. Specifically, his Honour said:[6]
53I accept the plaintiff’s evidence that he has suffered persistent pain in his lower back since the occurrence of the injury in 2005. I also accept his evidence that he has suffered pain radiating from his lower back into his left leg which has at times gone down as far as his left foot, and that he has also experienced pain in his right leg, but it has never been as bad as the pain he experiences in his left leg.
…
57 I accept the plaintiff’s evidence that he has significant difficulty sitting, standing, walking, bending, twisting and turning. All the foregoing are relevant to a capacity to adopt postures and to engage in full, free and unrestricted mobility. I accept the plaintiff’s evidence that adopting those postures and his mobility is restricted and can cause him to suffer aggravation of the painful condition of his lower back and left leg. I accept the plaintiff’s evidence that, when he suffers more severe episodes of pain, that he needs to lie down to ease the pain, and intermittently during the week he takes some medication to obtain additional easing of the pain.
58I accept the plaintiff’s evidence that he was reasonably active before he suffered injury to his lower back. There is no history of the plaintiff suffering an impairment of any kind which prevented him from pursuing work after he left school. He appears to have had a reasonable work history. He referred to activities such as horse riding, going camping and socialising, and, although he did not expand upon the extent that he engaged in those activities, I accept that they are activities which are now lost to him or made more difficult because of the injury to his lower back.
59The plaintiff struck me as being a reasonable witness. He gave a reasonable account of the nature and extent of the disablement he suffers. He conceded that he could probably do some work, although not in the sustained a manner that was put to him by Mr Dunstan.
[6]Reasons [53], [57], [58] and [59].
The medico-legal examinations
Having dealt with the respondent’s evidence and the evidence concerning the respondent’s medical treatment following 18 January 2005, the judge went on to deal with the medico-legal evidence that was tendered before him. His Honour described this evidence in the following terms:[7]
[7]Reasons [27]-[38].
27The plaintiff has been examined by a number of medico-legal consultants. The first of those was Mr Scott, general surgeon, who examined the plaintiff on 23 June 2005, and 23 May 2007. The plaintiff told Mr Scott that he was suffering from backache which was worse on prolonged standing and sitting, and with any twisting, turning or bending. He described having left-sided sciatica which radiated through his left buttock, thigh and to the knee. Mr Scott had the CT scan for his examination. He considered that the plaintiff had suffered an acute back strain with an intervertebral disc lesion in the lumbo-sacral spine. At that time, he considered that the plaintiff was totally unfit for work.
28Mr Scott did not vary his opinion after examining the plaintiff on a second occasion. He noted that the plaintiff was taking four Panadeine Forte tablets per day. Mr Scott was provided with a vocational assessment report dated 6 July 2005, the report of Mr Drnda dated 26 January 2007 and a report of Mr Moran, orthopaedic surgeon, dated 22 May 2005. He suggested that the plaintiff needed to lose weight and should give consideration to an epidural injection at L5-S1. He suggested that the plaintiff might be able to undertake some very light work in a part-time capacity which did not require prolonged standing and sitting for more than half-an-hour or any repeated bending, twisting, turning or lifting of more than 5 kilograms.
29Mr Moran examined the plaintiff on 4 May 2006. The plaintiff told Mr Moran that he could not mow his lawns, and had difficulty putting on his shoes and socks. He described pain in his lower back and intermittent pain in his left leg and calf. On examination, Mr Moran found restriction of movement of the plaintiff’s lower back. He had the CT scan for his inspection. He considered that the plaintiff had suffered an L5-S1 disc prolapse with aggravation of L3-4 and L4-5 disc degeneration. He considered that the plaintiff would never be fit for his pre-injury duties, but that he was fit for light employment only.
30Dr Bowles, occupational physician, examined the plaintiff on 20 March 2008. The plaintiff told Dr Bowles that he had persistent stiffness and pain in his lower back and pain radiating down into his left leg which sometimes went down to his ankle. He was restricted in his capacity to bend, lift, walk and stand. On examination, he found a reasonable range of movement, and noted the plaintiff audibly reacting when he was examined. Dr Bowles was not impressed by the MRI scan which he inspected, considering that what was shown on it was not of any significance. In the end, he said he was unable to find a condition from which the plaintiff was suffering, and he referred to the manner in which the plaintiff presented on examination. He considered that the plaintiff had a capacity for his pre-injury duties, and was capable of working as a despatch clerk, sales assistant and spare parts interpreter.
31Mr Dooley, orthopaedic surgeon, provided a report dated 18 October 2011 without examining the plaintiff. On the basis of the material he was provided, he considered that the plaintiff had suffered a disc prolapse which also involved aggravation of underlying degenerative processes in the plaintiff’s lower back. He considered that the plaintiff had probably suffered some permanent restriction, but was capable of engaging in a wide range of light physical activity and clerical type activity.
32Mr Dooley then examined the plaintiff on 16 October 2012. The plaintiff told him that he had persistent ongoing lower back pain with intermittent left leg pain. On examination, Mr Dooley found restriction of movement. He had the CT scan and the MRI scan for his inspection. He considered that the plaintiff had suffered a disc prolapse at the lumbosacral level on the background of degenerative disc disease. He considered that the plaintiff would note some ongoing intermittent lower back pain and lower limb pain. He considered that his injury could be managed conservatively.
33Mr Dooley subsequently provided a third report dated 31 May 2013 for the purpose of commenting on the opinions of Mr Schofield, orthopaedic surgeon, and the second MRI scan taken on 13 May 2013. He did not alter his previously stated opinion, but it would appear that he did not agree with the opinion expressed by Mr Schofield of the extent of the spinal damage which Mr Schofield considered had been caused by the incident, and also Mr Schofield’s opinion regarding the treatment which the plaintiff might need.
34The plaintiff was examined by Mr Schofield on 25 May 2012. The plaintiff told him that he was suffering from persistent pain in his lower back which had not lessened since the onset of symptoms. He could not stand or sit for more than thirty minutes at a time; could not walk long distances; suffered aggravation of the pain in his lower back when bending or lifting; could only do light house work, and obtained some relief by lying flexed on his side. He also reported left leg pain radiating into the back of his thigh and down into his ankle and foot. Mr Schofield had the CT scan and the MRI scan for his inspection. He considered that the plaintiff had suffered a disc prolapse consistent with the scans comprising a rupture of the posterior annulus at the lumbosacral level causing compression of the right S1 nerve root.
35Mr Schofield arranged for the plaintiff to have a second MRI scan, which was taken on 4 July 2012. According to the radiologist, it demonstrated a posterior disc bulge with an annular tear at L5-S1 indenting the thecal sac with mild indentation of the right S1 nerve root and mild dural foraminal compromise. In two subsequent reports dated 12 July 2012 and 17 May 2013, Mr Schofield confirmed his previously stated opinion that the plaintiff had suffered a lumbosacral disc injury with prolapse. He considered the plaintiff’s prognosis was guarded, and that if he did not proceed to have surgery he was likely to continue to have problems with his lower back preventing him from obtaining resolution of his symptoms. The surgery was to be directed to the pain the plaintiff was experiencing in his left leg. He considered that it would either comprise a decompression of the nerve root and/or a spinal fusion.
36The last medical practitioner who examined the plaintiff is Dr Yong, occupational physician. He examined the plaintiff on 20 March 2013. The plaintiff told him that he had pain in his lower back with intermittent radiation of pain into both legs which was worse on the left side. He was provided with the CT scan and the MRI scans. The plaintiff told him that he did very little, doing some domestic tasks, occasionally mowing the lawns, and otherwise watching TV, playing computer games and socialising with friends and his children. On examination, he found restriction of movement in the plaintiff’s lower back, but no neurological deficits. He considered that the plaintiff’s pain was due to a discal injury.
37Dr Yong was asked to consider a vocational assessment report of CoWork dated 2 November 2011 which referred to jobs of sales assistant, road traffic controller and product assembler. He was asked to consider whether any of them were suitable for the plaintiff. He considered that the jobs as road traffic controller and product assembler were reasonable because they were within the range of the restrictions which he considered should be imposed upon the plaintiff. Those restrictions were: avoiding repeated bending and twisting at the back, firm pushing or pulling, and lifting more than 5 kilograms on a repetitive basis.
38In a report dated 30 May 2013, Dr Yong commented on the reports of Mr Schofield. Like Mr Dooley, he did not consider that the more widespread changes in the plaintiff’s lower back would due to the incident, but rather to the ageing process. He did not believe that surgery would assist the plaintiff in returning to a better level of functioning.[8]
[8]Court book references omitted.
As with his Honour’s treatment of the evidence to which we have already referred, the appellants made no complaint before us concerning the above description of the medico-legal evidence. Indeed, no complaint is made by the appellants concerning the first 55 paragraphs of his Honour’s judgment – and correctly so in our view.
Ground 1
In ground 1, the appellants make complaint about paragraph [56] of the Reasons. At paragraph [56], his Honour said:
56Furthermore, there is a consistency in the opinions of Mr Scott, Mr Moran and Mr Schofield that the plaintiff has no residual capacity for suitable employment. Against that is the opinion of Mr Dooley, who considered that the plaintiff does have a residual capacity for suitable employment, and the opinion of Dr Yong, who specifically addressed three jobs referred to in the report of CoWork which are said to be suitable. I will return to the question of suitable employment shortly.
The appellants make two submissions about paragraph [56] of the Reasons. First, it is submitted that the judge was wrong when he said that ‘ … there is a consistency in the opinions of Mr Scott, Mr Moran and Mr Schofield that the plaintiff has no residual capacity for suitable employment’. The appellants submit that, contrary to his Honour’s statement, the evidence of Mr Scott, Mr Moran and Mr Schofield was that the respondent had a retained physical capacity for lighter employment. Secondly, it is said that the judge was wrong in contrasting the opinions of Mr Scott, Mr Moran and Mr Schofield on the one hand with the opinions of Mr Dooley and Dr Yong on the other hand. As the appellants would have it, the opinions of all five medical specialists were in substance that the respondent was capable of engaging in suitable light work.
To the contrary, the respondent submitted that the judge was right to differentiate between the medical opinions as he did. Further, the respondent submitted that in paragraph [56] of the reasons, his Honour was dealing, not merely with the issue of employment generally, but with the issue of ‘suitable employment’ as defined in s 5 of the Act. Section 5(1) of the Act relevantly provides:
(1) In this Act unless inconsistent with the context or subject-matter—
…
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii)the nature of the worker’s pre‑injury employment; and
(iii)the worker’s age, education, skills and work experience; and
(iv)the worker’s place of residence; and
(v)any plan or document prepared as part of the return to work planning process; and
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether—
(i)the work or the employment is available; and
(ii)the work or the employment is of a type or nature that is generally available in the employment market.
In our view, there is force in the respondent’s submissions. His Honour was correct to differentiate between Mr Scott, Mr Moran and Mr Schofield on the one hand, and Mr Dooley and Dr Yong on the other hand. Further, as the last sentence in paragraph [56] of the Reasons discloses, his Honour was dealing in paragraph [56] with the issue of suitable employment.
Mr Scott,[9] in his first report, said that the respondent was totally unfit for work and that the duration of the respondent’s incapacity was unknown. In his second report, Mr Scott said:
The worker is totally unfit for work and I believe that he requires more appropriate management for his chronic pain as has been discussed above and also I would hope that with improvement in his condition he should be able to undertake some sort of retraining for light jobs which does not require any physical activity as in view of the multi-level disc-degenerative changes I believe that he would be unfit to return to his full time pre-accident job.
[9]Who was retained on behalf of the appellants.
In his third report, Mr Scott said that the respondent:
might be able to take up some very light work in a part-time capacity, that is work that does not require prolonged standing that is more than half an hour or prolonged sitting that is more than half an hour or repetitive bending or twisting or turning or lifting more than about 5 kilograms in weight.
In our view, a fair reading of Mr Scott’s complete reports supports the judge’s conclusion that the respondent had no residual capacity for suitable employment. The possibility of light work was described as no more than a hope or possibility, and the restrictions put on such work by Mr Scott make the prospect of realistic employment on the part of the respondent almost fanciful. Indeed, in his second report, the light jobs Mr Scott hoped the respondent might be able to do if there was improvement were described by Mr Scott as not requiring any physical activity.
That said, the appellants’ submissions are on a slightly firmer footing in respect of Mr Moran’s opinion.[10] Mr Moran stated:
Diagnosis is L5-S1 disc prolapse and aggravation of L3-4 and L4-5 disc degeneration. History related to me by Mr Fullerton is consistent with the ongoing complaints. I do not consider that Mr Fullerton has suffered an aggravation of a previous or underlying condition.
…
Mr Fullerton is not fit for his pre-injury duties as a storeman. Mr Fullerton will never be fit for his pre-injury duties. Prognosis for return to pre-injury duties is poor. Mr Fullerton, in my opinion, is fit for suitable duties. Mr Fullerton is fit only for light duty employment – work not involving repeated bending and/or heavy lifting – and work in which he has the flexibility to sit or stand as pain dictates. Mr Fullerton is permanently fit only for light duty employment. Mr Fullerton should continue with his tablets, back exercises and walking. I think it unlikely surgery will be advised.
[10]Mr Moran, like Mr Scott, was retained on behalf of the appellants.
Having regard to the restrictions expressed in Mr Moran’s opinion, it was, we think, reasonable for his Honour to conclude that Mr Moran’s opinion, when taken with the respondent’s known background and circumstances, supported the proposition that the respondent was not fit for suitable employment, as that expression is used in the Act.
In his first report, Mr Schofield[11] expressed the opinion that he did not believe that the respondent had a capacity for any employment according to his education, training or experience. In his second report,[12] Mr Schofield noted an MRI scan which reported ‘significant changes … at the lumbo-sacral level where there is indentation of the thecal sac and mild indentation of the right S1 nerve root’.
[11]Unlike Mr Scott and Mr Moran, Mr Schofield was retained on behalf of the respondent.
[12]Provided with the benefit of more material, but without any re-examination of the respondent.
Mr Schofield provided a third report, upon which the appellants rely. However, Mr Schofield’s third report was not made after any re-examination of the respondent. Indeed, the opinions expressed in Mr Schofield’s third report were said to be based upon the examination conducted for the purposes of Mr Schofield’s first report (being the only examination of the respondent conducted by Mr Schofield). Mr Schofield’s third report provided:
At the time of my examination in May 2012 [before Mr Schofield’s first report was produced], your client [the respondent] had no capacity for pre-injury employment and was only suited to work of a lighter nature.
…
At the time of my examination, it was my opinion that he should consider surgery where the main area of complaint affecting his left leg was arising from the lumbo-sacral disc. He would either have a decompression of the nerve root canal and removal of the prolapsed disc or alternatively, he is more likely to need spinal fusion at that level for long term relief. The problem of other discs showing some evidence of degenerative change is likely to prevent him from returning to pre-injury employment. He would be better off to be trained into light employment for the future.
Again, and as with the reports of Mr Scott and Mr Moran, we see little basis for criticising the judge for coming to the conclusion that, in reality, the respondent was not fit for suitable employment. The possibility of realistic suitable employment within the respondent’s physical capacities was, at best, theoretical; and at worst, when one considered all of the evidence properly, wholly unrealistic.
The opinions of Mr Scott, Mr Moran and Mr Schofield are to be contrasted with the opinions of Mr Dooley and Dr Yong.[13] In his first report, Mr Dooley said:
The episode of 2005 has resulted in some permanent restriction. This is because a disc prolapse occurred on the background of the degenerative disc disease. Taking into account the ongoing intermittent low back pain and lower limb pain that one would expect Mr Fullerton to note, this would make it difficult for him to carry out regular heavy physical work or work or activities that involve a lot of bending and lifting. From an orthopaedic point of view alone, however, he is capable of engaging a wide range of light physical activity and clerical type activity.
[13]Both of whom (Mr Dooley and Dr Yong) were retained on behalf of the appellants.
In his second report, Mr Dooley said:
I believe that Mr Fullerton needs to increase his activity in general and to undertake regular low impact exercise such as walking. In relation to his personal life, he has been through a torrid time but does seem to be more stable in this regard now. Ultimately, a return to suitable work is imperative in his overall management. All of us are creatures of habit and function far better in a routine.
…
From an orthopaedic viewpoint only, Mr Fullerton has a physical capacity to carry out light physical work and clerical duties. He would not be able to carry out heavy physical work or work that involves a lot of bending, lifting and twisting.
As described by Mr Dooley, it was well open to the judge to conclude that Mr Dooley’s opinion, so far as suitable employment was concerned, was different from the opinions expressed by Mr Scott, Mr Moran and Mr Schofield. The whole tenor of Mr Dooley’s opinion is different from the tenor of the opinions expressed by Mr Scott, Mr Moran and Mr Schofield. The limitations on the respondent’s physical capacity are described in considerably less pessimistic terms by Mr Dooley than by Mr Scott, Mr Moran and Mr Schofield. The same points may be made about the opinion of Dr Yong, who, as his Honour noted, specifically addressed the three jobs referred to in the vocational assessment report provided by CoWork Pty Ltd.[14]
[14]Which report was written by an occupational therapist, Joanne Bryant, another witness retained on behalf of the appellants.
It follows from what we have said above that, in our view, the appellants’ criticism of his Honour’s treatment of the opinions of Mr Scott, Mr Moran, Mr Schofield, Mr Dooley and Dr Yong in paragraph [56] of the Reasons is misplaced. However, that is not the end of ground 1. In ground 1, the appellants also make complaint that his Honour failed to have any or any adequate regard to the evidence that although the respondent was unable to return to his pre-injury duties he retained the physical capacity for lighter employment. We will deal further with this point below. However, insofar as ground 1 encompasses a submission that his Honour overlooked some relevant matter or evidence, we reject that submission. As the reasons disclose, his Honour undertook, with evident care, a considered and detailed analysis of all of the relevant evidence, and of the various competing submissions made by the parties, before coming to his ultimate conclusion that the respondent should be given leave to commence a proceeding claiming both pain and suffering damages and pecuniary loss damages.
Ground 2
In ground 2, complaint is made that the judge erred by limiting his consideration of the proceeding to the respondent’s present capacity for work, and by failing to consider, as was (and is) required by s 134AB(38)(e)(ii) of the Act, whether the respondent would continue permanently[15] to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more. Section 134AB(38)(e) relevantly provides:
[15]Note that in Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, 639[33] this Court, in discussing whether impairment was permanent for the purposes of the definition of ‘serious injury’ in s 134AB(37), said ‘permanent, ie, likely to last for the foreseeable future’.
For the purposes of the assessment of serious injury in accordance with subsections (16) and (19)—
…
(e)where a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (37), the Authority or self-insurer shall not grant a certificate under subsection (16)(a) and a court shall not grant leave under subsection (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i)at the date of a decision under subsection (16)(a) or at the date of the hearing of an application under subsection (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured (except in the case of a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and
(ii)the worker (including a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) will after the date of the decision or of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more.
Section 134AB(38)(e)(ii) of the Act has application in this case because the respondent was under the age of 26 years at the date he suffered injury. His Honour recognised this in the Reasons when his Honour identified as a relevant consideration in the determination of the respondent’s application, amongst other matters, that:
Sub-section 38(e) provides that in the claim for loss of earning capacity, … such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.[16]
[16]Reasons [7], emphasis added.
Having reviewed all of the evidence, and made findings in relation to it, the judge then stated:[17]
60I am satisfied that the plaintiff has suffered a significant discal injury, and there is a good medical evidence to support that conclusion. I am also satisfied that it produces persistent pain and pain affecting the plaintiff’s left leg. I am satisfied that the interference with his capacity for work and his capacity to obtain postures and to be mobile is significant. Whilst the plaintiff has not had much medical treatment, I am not satisfied, in this case, that it is a matter of significance, because of the opinions of Mr Scott, Mr Moran, Mr Schofield and the general practitioners who have seen the plaintiff since 2005.
61I am satisfied that the consequences for the plaintiff, which I have summarised above, constitute pain and suffering consequences which are ‘at least very considerable’.
62I am also satisfied that the loss of earning capacity consequences are ‘at least very considerable’. I can see the basis upon which Dr Yong offered the opinion that the plaintiff can undertake the jobs referred to in the report of CoWork, but I have carefully considered the evidence of the plaintiff in the context of the histories given to all the medical practitioners who have examined him. Apart from Mr Johnson and Mr Bowles, there appears to be acceptance that the complaints of pain and disablement made by the plaintiff are within an acceptable range given the nature and extent of the injury he has suffered.
63The fact that the medical evidence is as strong, as I consider it to be, fortifies me in concluding that the plaintiff has suffered an incapacity for employment generally, and for the jobs referred to in the report of CoWork, and that I should accept his evidence that he might be able to do some of the work for some of the time, but would not be able to tolerate the physical demands of those jobs.
[17]Reasons [60]-[63].
While his Honour did not make express reference to the fact that the limitations and restrictions he found were permanent and/or would continue into the future, there can be no doubt that that was his Honour’s conclusion. Further, there can be no doubt that such a conclusion was well supported by the evidence. The preponderance of the evidence was that the respondent’s condition was unlikely to improve in the future. The issue before the judge was whether retraining might put the respondent in a position to be able to do some form of light work (involving a loss of earning capacity of less than 40%). Having concluded that issue against the appellants, the judge was then bound to find for the respondent in relation to the issues of the future and permanency.
Before dealing with ground 3 (the complaint that the judge’s conclusions in respect of loss of earning capacity were against the evidence and the weight of the evidence), it is convenient to deal with ground 4, the appellants’ complaint concerning the adequacy of the judge’s reasons for rejecting the evidence of Dr Yong and Ms Bryant of CoWork.
Ground 4
Ground 4 makes complaint that the judge failed to give adequate reasons for his rejection of the evidence of Dr Yong and Ms Bryant to the effect that the respondent retained a capacity to perform light employment – specifically, employment as a sales assistant (automotive parts and accessories), road traffic controller or product assembler (electronics).
The appellants’ complaints under this ground are completely without merit. His Honour gave perfectly clear reasons why he rejected the evidence of Dr Yong and Ms Bryant. Specifically, his Honour said:[18]
I think … there is a significant point of difference between the opinion of Dr Yong and what the plaintiff says about his capacity for work. I have examined what is involved in the jobs which Dr Yong considers to be suitable. I can see that they involve the plaintiff in needing to sit and stand and no doubt to engage in levels of bending, twisting and turning. It seems to me to be utterly unreasonable to suggest that those jobs do not involve those sorts of activities.
…
The fact that the medical evidence is as strong, as I consider it to be, fortifies me in concluding that the plaintiff has suffered an incapacity for employment generally, and for the jobs referred to in the report of CoWork, and that I should accept his evidence that he might be able to do some of the work for some of the time, but would not be able to tolerate the physical demands of those jobs.
[18]Reasons [59] and [63].
The appellants may not like the judge’s reasons for rejecting the evidence of Dr Yong and Ms Bryant. Nevertheless, his Honour’s reasons are plain. If we may say so, with respect, the judge’s reasons for judgment in this matter are, in our view, impeccable.
Ground 3
In ground 3, the appellants assert that the judge’s conclusions in respect to a permanent loss of earning capacity of more than 40% are against the evidence and the weight of the evidence. We reject this assertion. What we have already said discloses abundantly that his Honour’s conclusions are unimpeachable. The respondent suffered a disc prolapse. He has left leg pain. Whether the disc prolapse is compressing a nerve root or not, the left leg pain is related to damage to the L5-S1 disc. There is no realistic suggestion that the respondent is going to get better. The appellants’ own witness, Mr Scott, concluded that the respondent might be able to take up some very light work, in a part time capacity, that does not require standing for more than half an hour, sitting for more than half an hour or repetitive bending or twisting or turning or lifting more than 5 kilograms in weight. Like his Honour, we have closely looked at the jobs suggested by Ms Bryant and Dr Yong. Like his Honour, we reject the notion that these jobs meet the restrictions in the medical reports to which we have referred and about which the respondent gave credible and accepted evidence.
Conclusion
It follows that each of the appellants’ grounds of appeal must be rejected.
During argument, the appellants submitted that if this Court found that there was error below, this Court should examine the evidence and determine for itself whether the respondent had a permanent loss of earning capacity which was productive of a financial loss of 40% or more. In addition to considering the appellants’ grounds of appeal, we have undertaken that task. The evidence discloses the respondent is a person with limited education and skills. He has suffered a serious discal injury. No-one now disputes that his impairment meets the at least very considerable test both for pain and suffering and loss of earning capacity consequences. The evidence discloses a man who effectively cannot bend, twist, lift even moderate weights, reach for high objects, or sit or stand for any significant length of time. On the evidence presented to the judge, the respondent plainly has a loss of earning capacity which will continue permanently to be productive of a financial loss of 40% or more.
The appellants’ appeal must be dismissed.
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