Walkley v Victorian WorkCover Authority
[2020] VCC 2099
•30 July 2020
Speccc
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case Nos. CI-19-05707
CI-20-02625
| SHAUN WALKLEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE COISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16, 20 and 21 July 2020 | |
DATE OF JUDGMENT: | 30 July 2020 | |
CASE MAY BE CITED AS: | Walkley v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2099 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords:
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Linton Shirreff [2011] VSCA 405; Eastern Van Services Pty Ltd v Victorian WorkCover Authority and George James Barca [2020] VSCA 154; Ansett Australia Ltd v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; Jones v Dunkel (1959) 101 CLR 298
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P J Hayes QC with Mr P Czarnota | Henry Carus & Associates |
| For the Defendant | Mr A Moulds QC with | Wisewould Mahony Lawyers |
HIS HONOUR:
1 Originating Motion CI-19-05707 issued on 27 November 2019 is an application for leave to bring proceedings for the recovery of damages in respect of a low back injury the plaintiff alleges occurred in the course of his employment as a shopfitter with Australasian Retail Projects Pty Ltd (“ARP”) on 13 July 2017 when he fell from a ladder whilst working at a shop in Werribee.
2 The plaintiff alleges this low back injury involving disc injury in the lumbar spine and aggravation of spondylosis is a “serious injury” within the meaning of paragraph (a) of the definition of “serious injury” with respect to both pain and suffering and loss of earning capacity. The relevant body function in which there has been impairment or loss is the spine.
3 By notice dated 12 May 2020 the plaintiff was advised that his entitlement to compensation was terminated from 13 June 2020 on the ground that the plaintiff was not a worker within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). The plaintiff had submitted a claim for compensation dated 30 August 2017 in respect of the low back injury sustained in the fall at work on 13 June 2017. It was accepted by the defendant and the plaintiff was paid weekly payments of compensation (approximately $246,000) until they were terminated by notice dated 15 August 2019 and medical and like expenses ($31,141 together with $16,870 in hospital expenses) were paid on his behalf. This included payment of expenses associated with spinal surgery performed on 19 May 2018 (left L3/4 hemilaminectomy, rhizolysis and microdiscectomy).
4 By Writ CI-20-02625 issued on 16 June 2020 the plaintiff seeks a declaration that he is a worker within the meaning of the Act.
5 These two proceedings were heard together. The issues in dispute are:
(1)Whether the plaintiff is a worker within the meaning of the Act. This involves a consideration of the application of the definitions of “employer” and “worker” in s3 of the Act and the deeming provision in respect of “contractors” in s9 of Schedule 1. The parties agreed that the s3 definitions of “employer” and “worker” encompass the common law test of employment. I am familiar with and have had regard to the long line of authorities dealing with the issue of whether a person is an employee or an independent contractor including the more recent cases of Hollis v Vabu Pty Ltd (2001) 207 CLR 21, Elazac Pty Ltd v Linton Shirreff [2011] VSCA 405 and Eastern Van Services Pty Ltd v Victorian WorkCover Authority and George James Barca [2020] VSCA 154. In the Elazac case the Court stated at paragraph [30]:
“… Whilst earlier authorities often regarded ‘control’ as the determinative factor in deciding whether someone was an employee or an independent contractor, later authorities have recognised that control (or, more particularly, the right to exercise control) is only one of a number of possibly relevant factors (albeit an important one) in determining the issue. Modern authority is to the effect that it is the totality of the relationship between the parties which must be considered.”
The Court then listed a number of relevant factors to be considered in determining the nature of the relationship between a person who engages another to perform work and the person so engaged. In the Eastern Van Services case the Court of Appeal made these similar comments at paragraph [36]:
“In light of those general precepts, the correct method is to examine and weigh various indicia or criteria in a multifactorial analysis. Inevitably, those matters will be interrelated and do not carry a fixed weight. Although the relationship is contractual, the inquiry is to the nature of the contract, which involves a question of substance rather than nomenclature. Relevant factors include the terms of the engagement, the nature, extent and use of control, the degree of integration into the business of the principal, the method of remuneration, the use of the hallmarks of business by the person engaged, including the provision of capital, tools and equipment, invoicing, the incurring of expenses and the taxation treatment of income and outgoings.”
(2)Whether the injury alleged was an injury arising out of or in the course of the plaintiff’s employment, i.e. did the plaintiff suffer a low back injury when he fell from a ladder whilst working for ARP on 13 June 2017. The defendant denies the plaintiff suffered a compensable low back injury in any fall at work on 13 June 2017.
(3)If the plaintiff did suffer a compensable low back injury in the fall from the ladder on 13 June 2017, whether that injury is a “serious injury” as defined. Once again I am familiar with and have had regard to a long line of authorities on “serious injury”. As the plaintiff had pre‑existing low back pain for which he had sought medical treatment this third issue necessarily involves application of the principles applicable to aggravation injuries enunciated in the following well known passage from Petkovski v Galletti [1994] 1 VR 436 at [444]:
“ … at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre‑existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.”
6 The original proceeding was an Originating Motion supported by affidavit material from the plaintiff directed to the issue of “serious injury”. As the issues in dispute expanded the parties provided additional affidavits addressing these issues. In view of the unusual background and procedural history to the proceedings I ruled that the parties were not restricted to the affidavits filed, they could adduce any further evidence in accordance with the established rules governing a common law trial. Each party, therefore, had the opportunity to adduce all relevant evidence. Only the plaintiff and Alan Barassi, a director of ARP, gave oral evidence. The parties tendered many affidavits, documents, medical records and medical reports in support of their respective cases.
7 The plaintiff has provided three affidavits dated 12 July 2019, 25 May 2020 and 14 July 2020. The plaintiff is 39 years of age, having been born on 2 February 1981. He is in a relationship and he has two young children from that relationship and an older child from a previous marriage. The plaintiff was educated to Year 8 level. He left school at 14 years of age and completed a shopfitting apprenticeship. The plaintiff has worked for many years as a shopfitter. Immediately preceding his work with ARP in 2017 the plaintiff was engaged in making concreting formwork.
8 The plaintiff described the circumstances of his employment with ARP in his second affidavit in these terms:
“25. I have known and worked with Alan since the mid-1990s. He previously worked for Australasian Retail Projects (“ARP”) which, until about 2010, was owned by my uncle who then sold it to AMP Capital.
26. I did some work for Alan in about 2013-2014 but at that time there wasn’t enough work to be engaged full-time. We have kept in regular contact since.
27. In about May 2017, I started to work full-time for ARP. Initially it was for a project on a Specsavers in Devonport, Tasmania, then I worked in ARP’s factory on a project for Medibank Glen Waverley, and then RACV Werribee.
28. Prior to starting full-time work for ARP in May 2017, I had a couple of telephone conversations with Alan. I was concerned about working for ARP doing odd jobs here and there, and I wanted the security of full-time work for ARP. He reassured me of this. We agreed to an hourly rate of $55.00 an hour on one of those telephone calls. That higher hourly rate was agreed to so he wouldn't have to pay me for higher overtime rates, and there was a $5 per hour superannuation allowance built into it. I received an additional allowance while working away from home on the Tasmania project.
29. While during the 2017 financial year I performed contractor work services for various companies, from about 1 May 2017 onwards until I suffered injury on about 15 June 2017, I was working exclusively for ARP. It was our mutual intention that I continue to work full-time exclusively for ARP, but my injury put an end to that.”
9 In the plaintiff’s second and third affidavits and in cross-examination he elaborated upon the circumstances of his engagement with ARP and the work he performed for ARP. The plaintiff said he contacted Barassi in 2017 as he was looking for work as a shopfitter for ARP. The plaintiff only wanted to work for ARP when they had enough work to employ him on a full-time basis. When discussing these matters the plaintiff said Barassi assured him that ARP had a lot of work until Christmas 2017, including a job on a Specsavers shop in Devonport, Tasmania. As the plaintiff was anxious to obtain a guarantee of full-time ongoing work he sought and obtained reassurance from Barassi that ARP had enough work until Christmas. According to the plaintiff, that was a lot of work. Barassi also said that he would be teeing up more work for 2018. Barassi told the plaintiff that he would not have to keep his old contacts. The plaintiff was adamant that he would not have started work for ARP in the absence of a guarantee of full-time work, he would have remained in his old job constructing concreting formwork. He said he would not have worked for ARP on a job-to-job or ad hoc basis. The plaintiff explained what he meant by full-time employment in these terms:
“I mean that I would be fully employed with Australasian, full time, job after job after job. If there is no jobs on site, like he does with most of his guys, they go back to the office, you know, do some renovations on his office. He keeps you employed every single day.” (T71)
10 The plaintiff said Barassi wanted to retain good shopfitters and when he does so, “… he punches out the work …” (T72)
11 The plaintiff maintained that he was employed by ARP on a full-time permanent basis, his employment would last for the foreseeable future.
12 The plaintiff worked for ARP as a shopfitter on a full-time basis from 1 May 2017 until 16 June 2017, save and except for 23 and 24 May 2017 when he was at home resting. He worked at Specsavers Devonport from 1 May 2017 to 22 May 2017. He worked in the ARP factory on a Medibank Glen Waverley job on 25 and 26 May 2017 and from 29 May 2017 to 15 June 2017 he worked at RACV Werribee.
13 The plaintiff deposed that he was required to start work at 6.30am to 7.00am each morning. He had the keys to the work sites. He opened the sites thereby allowing other tradesmen to enter, so he had to be on site by 7.00am at the latest. In the site attendance register for the RACV Werribee job the plaintiff has signed in under contractor and he has described his company as ARP.
14 The plaintiff was required to personally perform his work duties. As a shopfitter he not only performed manual tasks within his trade or expertise, he was also required to coordinate and oversee other tradesmen.
15 The plaintiff did not delegate his work. He did not employ others on site. He could not employ others to do his work.
16 The plaintiff deposed that ARP had the right to exercise control over the manner in which he performed his work. The plaintiff was directed by Barassi. He had to follow the site plans.
17 At the RACV Werribee site Barassi was the construction manager. He was on site every couple of days and the plaintiff spoke with him on site and also frequently communicated with him by phone.
18 The plaintiff was the designated site contact for ARP at the RACV Werribee site. He was also the site supervisor/first aider for ARP. This is recorded in documentation prepared by ARP.
19 The plaintiff deposed that shortly before his injury on 13 June 2017 Barassi requested that he obtain an official ARP email address to send and receive work emails. This did not eventuate because of the plaintiff’s injury and cessation of employment.
20 At the time of his accident the plaintiff said he was following ARP instructions and directions in using particular supports for cabinetry.
21 ARP provided most, if not all, materials. Whilst the plaintiff could not recall purchasing any materials, if this did occur he would be reimbursed by ARP. The plaintiff deposed that he provided his own hand tools but ARP provided many tools, machinery and accessories for use on site, such as trolleys, jack hammers, concrete cutting saws, hoists, fittings, lighting and leads.
22 The plaintiff had his own motor vehicle but ARP provided a work truck which was to be used during work hours. ARP provided a log book to be completed if the truck was used.
23 The plaintiff deposed that he had no discretion to take holidays without ARP’s permission.
24 Tax invoices were prepared for the plaintiff’s work, however the plaintiff explained that he did not prepare these invoices. He was provided with an Excel invoice template by ARP. He had to use this template. The plaintiff inserted his hours of work into this template and the invoice was created. This was a novel approach for the plaintiff. In the invoices the plaintiff is identified in his own right and there is also a reference to the plaintiff’s ABN number, 66014686355, this is the ABN number in respect of the plaintiff’s business name, Empire Floor Group. The invoice template was emailed to the plaintiff by Barassi on 2 May 2017.
25 The plaintiff deposed that he did not work for anyone else whilst employed by ARP. He presented himself to clients as a member of the ARP workforce, he was working under the ARP banner. He wore an old ARP shirt. The plaintiff did not generate any good will for his own business.
26 The plaintiff deposed that on 13 June 2017 he was installing some shelving in the shop at Werribee. He was standing on a ladder. The shelving collapsed and the plaintiff fell off the ladder. He landed heavily on his low back. The plaintiff described the pain in his low back as being like “someone had stuck a knife into my low back”. The plaintiff experienced severe sharp pain in the low back and down both legs. He also cut his fingers so there was blood on the shop floor. In cross-examination, the plaintiff described the circumstances of the accident in these terms:
“What happened, I was putting the shelves in, I started from the bottom, got up to the top, went to put the top shelf in and the shelf supports collapsed and I lost my balance and ended up going down with them, scraped my back on the ladder and landed on my butt and then all the shelves landed on top of me, which are 25 millimetres by about 800 wide and 800 deep; they were massive … I cut the inside of my hand and fingers.” (T105)
27 The plaintiff said that he had a phone conversation with Barassi on 13 June 2017 following the fall in which he told Barassi that he had injured his back and hand. The plaintiff was cross-examined about an incident report form completed by Barassi on 13 June 2017 in which Barassi had recorded the following details, “Fell off small ladder, grazed back of hand” and “Putting up shelves, they collapsed, fell off ladder.” It was put to the plaintiff that he had never told Barassi of a back injury in this fall, rather the only injury mentioned was the graze to the back of his hand. The plaintiff replied in these terms:
“That just sounds too close to what actually happened – I grazed my back down the ladder and I cut the inside of my hand – unless he’s misinterpret (sic) what I've said to him, which I don’t think he could have, but it just sounds very close to what I actually told him. I grazed my back falling down a ladder, landed on my butt and I cut the inside of my hand. These words are just too close to what actually …” (T108, 109)
28 The plaintiff said that he completed an ARP incident form on 13 June 2017 in which he detailed suffering a low back injury on 13 June 2017. He wrote:
“Shelf supports in joinery unit not drilled correctly causing fall off ladder.”
29 The plaintiff did not provide this form to ARP until 30 August 2017. He said that he completed this form as he wanted to retain a record of the incident. He also took a photograph of the blood on the shop floor.
30 The plaintiff slept poorly on the night of 13 June 2017. He returned to work and remained at work for the following two days however his pain worsened. He took painkillers but they did not alleviate the pain. The plaintiff said that he was doing light work on these two days. In cross-examination he explained why he continued working:
“I went in because I was the site manager, I went in and I marked out and I set up for the future truck load for Martin, that was my intention, and I was trying to get through it, I was trying to grit my teeth and hopefully it would just go away, because if it didn’t go away, I was in trouble. I had a lot lying on my job … I had to be on site those two days, I had to be there. I tried not to make a big drama of it, right, because I wanted to keep the job, I wanted to try me best to keep that job and I tried to not make a big deal out of it.” (T112)
31 The plaintiff went out with a friend on the evening of 15 June 2017 however later that night or in the early hours of the following morning he attempted suicide. In his first affidavit he describes his general circumstances at the time in these terms:
“… I was desperate to keep working so I managed to somehow complete my shift that day but I was starting to feel increasingly hopeless and desperate as a result of the pain I was in and the likely impact on my ability to work and provide for my young family. I felt I had no way out. I went out that night with a friend who was worried about me but I got increasingly depressed and overwhelmed. Later on that evening I tried to commit suicide by overdosing on Valium. I took several pills but then I panicked and I got a taxi to the Northern Hospital. I was admitted and the following day I was transferred to the Broadmeadows Hospital where I stayed for some days. I had some scans on my back and was told I had some disc problems and I was prescribed some medication and told to follow up with my GP. I have not returned to work since then.”
32 The CT scan of the lumbar spine taken at the request of a doctor at Broadmeadows Hospital on 22 June 2017 revealed the following:
“Evidence of foraminal disc herniation on the left side of L4/5 disc potentially compromising the exiting left L4 nerve root in the intervertebral foramen. In addition, a central posterior disc herniation at the level of L5/S1 displaces the S1 nerve roots posteriorly.”
33 The plaintiff saw his general practitioner, Dr Miller, on 23 June 2017. He said that he told Dr Miller about the fall from the ladder on 13 June 2017. This is not recorded in Dr Miller’s clinical note. The plaintiff was subsequently referred to the neurosurgeon/spinal surgeon, Mr Gus Gonzalvo, in October 2017. Mr Gonzalvo wrote to Dr Miller on 26 October 2017 stating:
“Thank you for asking me to see Shaun Walkley in my Warringal consulting rooms on 20/10/2017. As you are aware, he had an accident at work in July this year following which he developed severe low back pain radiating to both legs and radicular symptoms on the distribution of the left L3 and L4 dermatomes.”
34 Mr Gonzalvo organised a CT-guided injection targeting the left L4 nerve root in the exit foramen.
35 The plaintiff had further scans and steroid injections into the back which had little effect upon his symptoms. He was also referred to Dr John Archer, neurologist, in January 2018. Eventually in view of persisting symptoms, Mr Gonzalvo operated upon the plaintiff’s back on 19 May 2018 performing a left L3-4 hemilaminectomy, rhizolysis and microdiscectomy. The plaintiff deposed that following the surgery:
“… The electricity down my legs improved but my low back pain persisted.”
36 The plaintiff was referred to a pain specialist, Mr de la Harpe, and he received courses of facet joint injections and manipulation to the low back. The plaintiff was admitted to hospital again in February 2019 as a result of a severe exacerbation of low back pain. In March 2019 the plaintiff attended a pain management program.
37 In 2019 the plaintiff commenced seeing Dr Arthur Zulman at the Macedon Medical Clinic and he referred the plaintiff to another pain specialist, Dr Richard Sullivan.
38 The plaintiff continues to experience constant low back pain particularly on the left side. It varies in intensity. He takes a lot of medication. His low back injury has had a great adverse effect on his social, recreational and domestic activities. The plaintiff does not believe that he is able to perform any regular or reliable work. The plaintiff was not challenged in cross-examination on this aspect of his evidence concerning the pain and suffering and loss of earning capacity consequences of his back injury.
39 The plaintiff was cross-examined extensively about his pre‑existing back condition and his failure to fully disclose this condition. This was a significant issue in the attack upon the plaintiff’s credit. In the plaintiff’s first affidavit he deposed:
“… Over the years I also experienced some muscle aches and pains in my lower back occasionally. As a result I had some massages and manipulation on my back from time to time, but I continued working.
7. In early June 2017 however I felt some muscle pain in my lower back and some numbness in my right foot, so I was prescribed some medication and some scans were arranged by my GP.”
40 The plaintiff saw general practitioners on 10 May 2017, 24 May 2017 and 9 June 2019 complaining of back pain. The notes of these consultations were tendered in evidence. On 10 May 2017, the general practitioner in Devonport, Tasmania obtained a history that the plaintiff had redeveloped low back pain and had been using Voltaren and Panadol without any good result. The plaintiff wanted a short course of Endone. On 24 May 2017, the plaintiff attended upon Dr Michaelson, general practitioner, in Eltham, complaining of back pain. Dr Michaelson recorded that the plaintiff was tender across the low back but there was a good range of movement. Dr Michaelson also recorded that the plaintiff worked full time as a shopfitter and had seen Joy Manser and taken Voltaren. He prescribed Tramal.
41 The plaintiff attended upon Dr Miller, general practitioner, on Friday, 9 June 2017. The clinical note is as follows:
“… Having ongoing back pains. Having manipulation but not helping. Wants to see specialist. Pains in left lumbar region with paraesthesia in right foot. Saw Tony Michaelson who gave home medication which does not agree with him. Will not go back. Discussed. Reason for contact: back pain, anxiety/depression. Actions: diagnostic imaging requested, CT – spine – lumbar – pains in L lumbar region. Paraesthesia in right foot at times. Prescription added: Endone tablet …”
42 In cross-examination the plaintiff said that he had consulted the general practitioner in Devonport as he had mild muscle pain. He wanted a short course of Endone as he felt this would lead to the pain resolving as it had done in the past. The plaintiff described his pre‑existing condition as mild muscle pain. He said:
“It was more muscle pain. What I used to get over the years, a couple of times a year, was a twisted muscle in the back, right, and if you couldn’t get to the right people, like Joy Manser, if you couldn’t get there and get it twisted out, it would just stay with you, and that’s what I knew it was, it was this small twisted muscle in the back.” (T102)
43 The plaintiff had experienced this type of pain on and off since he was 15 years of age. He agreed that when he saw Dr Miller on 9 June 2017 he was experiencing pain in the left lumbar region with paraesthesia in the right foot. He said that Dr Miller suggested referral to a specialist and referral for a scan. In re‑examination the plaintiff explained that he would have some form of muscle manipulation on the back about twice a year. He described the condition as being minor in that it could be twisted out by manipulation. He also said:
“It’s not a muscle condition, like, if you bend the wrong way you can twist the muscle and it goes through a nerve. That’s what I've had repeatedly over the years.” (T143)
44 The plaintiff said that this condition had never stopped him working in the past. When asked to compare his level of pain before and after the fall on 13 June 2017, he said his pain level prior to the fall was 1-2/10 compared to 10/10 after the accident. The plaintiff stated that he had been able to return to work following the consultation with Dr Miller on 9 June 2017. He returned to work on Tuesday, 13 June 2017 and he was able to unload a semitrailer before his accident. He said that:
“After unloading a semitrailer, there was no dramas before that.” (T105)
45 The plaintiff agreed that he did not tell Dr Slesenger or Mr Carey, whom he saw for medico‑legal purposes at the request of the defendant, about his pre‑existing back pain. He explained that it was his view that the pre‑existing back condition was entirely different to the injury suffered in the accident on 13 June 2017.
46 A series of radiological reports commencing with the CT scan dated 22 June 2017 and a large number of medical reports were tendered on behalf of the plaintiff. Much of this medical evidence is of limited assistance as it is not based on a complete or accurate history. This is exemplified by the reports of the plaintiff’s treating general practitioner, Dr Miller. Dr Miller did not record any history of the fall on 13 June 2017 and his reports do not address the critical issues of whether the plaintiff injured his low back in that fall and if so what, if any, have been the consequences of that injury.
47 Whilst the treating surgeon, Mr Gonzalvo, did not obtain any history of pre‑existing back pain, it is, in my opinion, significant that when the plaintiff saw Mr Gonzalvo on 20 October 2017 he was complaining of severe low back pain radiating to both legs with radicular symptoms on the distribution of the left L3 and L4 dermatomes following the accident at work in July 2017. In a report dated 11 December 2017 Mr Gonzalvo described the subsequent investigations and consultations with the plaintiff culminating in the decision to operate in May 2018. Following surgery it appears there was improvement in leg pain, however the plaintiff continued to experience low back pain. Mr Gonzalvo has expressed the following opinion:
“He had an accident at work in July 2017 following which he developed severe low back pain radiating to both legs with radicular symptoms on the distribution of the L3 and L4 dermatomes.
…
He was diagnosed with lumbar canal stenosis with nerve root compression due to a combination of hypertrophy of the L3-4 facet joint on the left side and a disc prolapse at the L3-4 level.
…
On 29 May 2019, he underwent a left L3-4 hemilaminectomy, partial fasciectomy, rhizolysis and microdiscectomy.”
48 Mr Gonzalvo was of the opinion that the plaintiff was significantly incapacitated due to low back pain and had been unable to return to work. It was his opinion that the plaintiff would be unable to work in any employment involving heavy lifting, bending and twisting.
49 The plaintiff’s current treating general practitioner, Dr Zulman, in reports dated 9 July 2019 and 22 March 2020, expressed the opinion that the plaintiff had suffered a severe discogenic and soft tissue injury of the low back requiring surgery and ongoing severe pain management as a result of the accident on 13 July 2017. Dr Zulman was of the opinion that the plaintiff had no current capacity for employment.
50 Dr Peter Wilkins, occupational physician, assessed the plaintiff for medico‑legal purposes at the request of his solicitors on 29 July 2019. He obtained a history of the fall at work on 13 June 2017. He did not obtain a history of any pre‑existing back pain. Dr Wilkins accepted that the plaintiff’s back injury for which he required surgery resulted from the fall.
51 Professor Richard Bittar, neurosurgeon, assessed the plaintiff for medico‑legal purposes at the request of his solicitors in September 2019. In a report dated 28 September 2019, Professor Bittar recorded the following:
“His past medical history included intermittent back pain which would occur generally during the course of his heavy physical work as a shopfitter. He estimates that he would have had some sort of massage/manipulation around three times per year to manage these episodes.
The onset of his symptoms occurred following an injury at work at around 10:30 am on June 13, 2017 …”
52 Professor Bittar then obtained a detailed history of the fall from the ladder. He noted that the plaintiff was complaining of the immediate onset of low back pain with some radiation to the legs. Professor Bittar expressed the opinion that the plaintiff was suffering from the aggravation of lumbar spondylosis treated surgically, left L4 radiculopathy and failed back surgery syndrome. In respect of causation, Professor Bittar states:
“In my opinion his employment as a shopfitter and specifically the injury which occurred on June 13, 2017 whilst working for Australasian Retail Projects has been the dominant contributing factor.”
53 Professor Bittar was of the opinion that the plaintiff was likely to continue to suffer from significant pain and disability in the future. The plaintiff was permanently incapacitated for his pre‑injury work as a shopfitter and did not have any realistic capacity for suitable employment. It was Professor Bittar’s opinion that the plaintiff’s total incapacity for work was the direct result of the injury which occurred at work on 13 June 2017.
54 Alan Barassi gave evidence on behalf of the defendant. He has provided three affidavits dated 4 May 2020, 2 June 2020 and 14 July 2020. In his first affidavit he deposed that:
“ARP engaged the Plaintiff as a contractor on an ad hoc basis. There was no formal arrangement or contract with the Plaintiff rather ARP engaged the Plaintiff’s services for short projects from time to time.”
55 Barassi agreed that there was never any written subcontractor agreement between the plaintiff and ARP. He deposed that the plaintiff had his own income protection and public liability insurance. Barassi deposed that the plaintiff performed work on an ad hoc basis on five occasions in 2013 and 2014. Barassi described the plaintiff’s work in 2017 in these terms:
“When the Plaintiff’s services were engaged by ARP in the 2017 financial year, he was paid at the rate of $55.00 per hour (which is much more than the hourly rate of an employee of ARP, which in 2017 was $23.10 per hour). He invoiced ARP for the work he performed on a weekly basis, along with his living away expenses, on his business letterhead and charged GST. He provided his own vehicle, his own tools and some of the materials to complete the contract work. He was not provided with direction or supervision by ARP when on site, but rather operated independently and set his own hours of work. I am informed and I believe he also contracted himself out to other companies. He was paid a total of $19,444.75 for the services he provided to ARP in 2017.”
56 Barassi said the plaintiff did not work full-time for ARP in May and June 2017. He denied any suggestion that the plaintiff was engaged on a full-time basis permanently. He agreed that ARP had work in 2017, but he was unable to recall the amount of work. He had no recollection of the plaintiff ever stating that he wanted full-time work with ARP rather than engagement on an ad hoc basis. In his second affidavit he deposed that:
“In about March or April 2017 the plaintiff was working in Adelaide. He contacted me looking for work for when he returned to Melbourne. I did not and could not promise him full-time work and this was not discussed. I recall only one phone call where I mentioned there was a project coming up in Devonport, Tasmania and he was keen to do that job and any others. He then came to the office to discuss the Devonport job. I did not have conversations with the plaintiff regarding him working full time for the defendant or agreeing to a higher hourly rate so I did not have to pay him overtime rates, with a $5.00 per hour superannuation allowance built into it. He was paid $55.00 per hour as he was a contractor and was responsible for paying his own insurances, tax and superannuation. The defendant did not have his superannuation details in any event.”
57 Barassi deposed that the plaintiff was contracted to perform installation work on ARP projects. Barassi was not onsite each day, but if the plaintiff had questions about plans or specifications the plaintiff would discuss this with him.
58 Barassi said the plaintiff was the site contact/supervisor at the RACV Werribee site as only the plaintiff and another contractor were onsite each day.
59 Barassi deposed that the plaintiff invoiced ARP weekly for work performed, noting his ABN on the invoices, and he charged GST. Barassi agreed that whilst the plaintiff was working in Devonport he received an additional allowance for working away from home.
60 Barassi denied requesting the plaintiff obtain an official ARP email address.
61 Barassi said the plaintiff had his own tools and there were few materials required from the plaintiff. The plaintiff installed shop fittings. ARP did supply heavier machinery onsite. Barassi deposed that the plaintiff had no reason to use the ARP truck.
62 Barassi deposed that the plaintiff did not accrue annual leave and was not paid if he took days off or holidays. He deposed that the plaintiff invoiced ARP for work he performed. In respect of these invoices Barassi deposed:
“The plaintiff prepared his own invoices, noting his name, address, ABN, invoice amount and GST charged for the job. His partner Brenda emailed them to the defendant’s office for payment.”
63 In respect of the accident on 13 June 2017, Barassi deposed that:
“The incident on 13 June 2017 was reported to the defendant’s management via telephone at approximately 12:30pm as a minor incident; the plaintiff had fallen off a small ladder and grazed the back of his hand. He continued to work that day and the following two days as he invoiced the defendant for work carried out on 14 and 15 June 2017.”
64 Barassi was adamant that in the telephone conversation that he had with the plaintiff on 13 June 2017 the plaintiff never said that he had injured his low back in the fall. Following this conversation Barassi completed an Incident Report form and noted, “Fell off small ladder grazed back of hand”.
65 Barassi said he did not know whether the plaintiff had worked exclusively for ARP from 1 May 2017 to 15 June 2017. Barassi said he gave the plaintiff factory work after the Specsavers job in Devonport:
“… just to keep him going in that little period”. (T185-186)
66 Whilst Barassi said the plaintiff had no fixed starting time each day, he did acknowledge that the plaintiff was:
“… running the guys on site, the subcontractors”. (T186)
67 Barassi agreed the plaintiff was the ARP representative onsite. He said the plaintiff had site keys so the plaintiff did need to be at work between 6.30am and 7.00am to open the site for subcontractors.
68 Barassi discussed the plaintiff’s engagement with the WorkCover claims agent Christopher Goh. Christopher Goh recorded in a file note in an initial assessment dated 21 September 2017 “… The employer also advised that the claimant worked full-time for them from start of contract which is expected to carry on indefinitely until they ran out of work”. This was put to Barassi in cross-examination:
Q:“That's what you advised Mr Goh when you spoke with him on 21 September 2017, isn't it?‑‑‑
A:I don't remember. No.
Q:What I'm putting to you is the reason that note is there is because that's what you told him?‑‑‑
A:I don't know.” (T197)
69 Barassi agreed in cross-examination that the plaintiff did not generate any goodwill on his own behalf. He agreed that the plaintiff did not deal with the ARP clients whilst working on these projects. The plaintiff received all instructions and supervision in the undertaking of the fit outs from ARP but the plaintiff also made a lot of decisions himself. Barassi agreed that he entrusted the plaintiff with a managerial position. Barassi described the plaintiff as his “leading hand” on a number of occasions. He said the plaintiff could not delegate his duties or role, nor did he employ others. Barassi agreed that he was able to direct and control the manner in which the plaintiff undertook his role as leading hand in May and June 2017. The plaintiff had to follow the ARP plans and specifications and his work had to be performed to the high standards demanded of Barassi and ARP. Barassi was unaware the plaintiff had worn an old ARP shirt. Barassi said the plaintiff could take holidays whenever he wished.
70 The plaintiff had two days resting at home after working in Devonport. Barassi made the following comment in respect of these two days:
“… Just the same as when he left Devonport, he wanted a couple of days off, I said no problem”. (T209)
71 In cross-examination, Barassi initially expressed no knowledge of the invoice template system. When shown the email exchange in which Barassi had requested the ARP template and then forwarded it to the plaintiff Barassi said he had not remembered these matters and he did not know why ARP had prepared the invoice template to be used by the plaintiff.
72 An affidavit of Ross Sicilia, the senior legal manager of Xchanging, the WorkCover claims agent, dated 2 June 2020 was tendered on behalf of the defendant. Sicilia has provided an explanation for the claims agent admitting the plaintiff was a worker within the meaning of the Act. The affidavit is silent as to the admission by the defendant that the plaintiff suffered a compensable low back injury on 13 June 2017 and subsequent payment of weekly payments of compensation and medical and like expenses. For the reasons that follow it has not been necessary for me to consider this material or the application of the principles enunciated in Ansett Australia Ltd v Taylor [2006] VSCA 171 in respect of the acceptance of a claim for compensation.
73 Many of the medical reports tendered on behalf of the defendant were also of limited assistance as they contain no history of the plaintiff’s pre-existing condition. I have already referred to the inaccurate and/or incomplete histories provided by the plaintiff to Dr Slesenger and Mr Carey.
74 The defendant places particular reliance upon two letters written by the plaintiff’s treating neurologist, Dr Archer, and the medico-legal report of Mr Keven Siu, neurosurgeon, dated 8 July 2020. Dr Archer wrote to Mr Gonzalvo following a review on 31 January 2018. He obtained a history of the fall from the ladder. The plaintiff told Dr Archer that following the fall he had continued to be troubled by low back pain variably extending into his legs. Dr Archer was of the opinion that most of the plaintiff’s pain was soft-tissue related.
75 Mr Siu conducted a file review in July 2020. He did not examine the plaintiff, rather he received documentation including the clinical notes of the general practitioners to which I have referred and various medical and radiological reports. Mr Siu was of the opinion that the plaintiff was suffering from symptomatic lumbar spondylosis as of 9 June 2017. He was asked to describe the usual course of such back pain in the typical patient. He stated:
“The typical patient with lumbar spondylosis would have periods of exacerbation of the back pain. Indeed a bout of back pain can be precipitated by activities of daily living, such as bending to pick up small articles from the floor or loading a dishwasher. He certainly suffered an injury at work falling onto his buttocks, but I tend to agree that this may well be a soft tissue injury, as proposed by his treating neurologist.”
76 There are significant factual disputes in respect of all three issues for determination. These necessarily involve careful consideration of the credibility of the two witnesses, the plaintiff and Barassi, and analysis of documentation, in particular the contemporaneous file notes of Goh.
77 It was submitted on behalf of the plaintiff that the plaintiff was a witness of truth whose evidence ought be accepted. It was submitted that:
“On the other hand, various aspects of Mr Barassi’s evidence were self-serving, erroneous, failed to accord with common sense, or were directly contrary to reliable evidence, often substantiated by documents.” (Paragraph 30, Outline of Plaintiff’s Submissions)
These submissions contain an analysis of six specific topics in Barassi’s evidence which it is submitted adversely affect Barassi’s credit.
78 It was submitted on behalf of the defendant that the plaintiff was not a credible or reliable witness. He was not a witness of truth. The principal matters raised by the defendant’s counsel in the attack upon the plaintiff’s credit were the failure by the plaintiff to fully disclose his pre-existing back condition, the 13 June 2017 Incident Form the plaintiff allegedly completed on that day, his statements in his Insuranceline Income Protection Plus Claim Form and his conduct in the period immediately after 13 June 2017.
79 I have carefully considered all of the matters raised on behalf of the defendant in respect of the plaintiff’s credit however I do not accept these criticisms of the plaintiff’s evidence. I found the plaintiff to have been a credible, honest and straightforward witness of truth on the critical issues of the contractual arrangement he had with ARP, the circumstances of the accident on 13 June 2017 and the nature and extent of his symptoms following this accident.
80 It was, in my opinion, of great significance that on 18 September 2017 the plaintiff disclosed to Goh, the WorkCover claims agent, that he had a pre-existing back condition. I accept the accuracy of Goh’s file note in which he records the following:
“… He says that he has had some muscular pain in the back before of which he has had massage but this is the first time he has been diagnosed with disc herniation. He says his GP is Bill Miller at Childs Road Medical Clinic, number 03 9404 4110 ...”
81 It is clear from the entirety of this file note completed on 18 September 2017 that the plaintiff had been told by Goh that his WorkCover claim was being reviewed to determine if the plaintiff had an entitlement to compensation. In this context the plaintiff has described the nature of his contractual arrangement with ARP and his pre-existing back condition. I accept the plaintiff’s evidence that his characterisation of his pre-existing condition was in the nature of periodic muscular pain which usually resolved with medication or occasional massage or manipulation. Goh made a file note on 21 September 2017:
“… Based on the information received there is no identified reason to doubt the claimant’s injury or how it occurred. The incident clearly occurred as claimed and considering the fall it is plausible the disc could have herniated from impact. There is no indication that there is a pre-existing condition ...”
82 This final comment must be considered in the context of the information already conveyed to Goh by the plaintiff on 18 September 2017. This represented the plaintiff explaining to Goh that this was the first time he had been diagnosed with disc herniation. I do not accept the submission made on behalf of the defendant that the plaintiff had materially misled Goh by failing to disclose his pre-existing condition, rather I find the plaintiff did provide Goh with details of his pre-existing condition on 18 September 2017.
83 In my opinion the plaintiff’s failure to tell doctors of his pre-existing condition and failure to disclose this in his personal insurance claim must be considered in light of the plaintiff’s evidence of his understanding of the nature of the injury sustained in the fall on 13 June 2017, namely disc herniation, compared with his understanding of the nature of his pre-existing condition, muscular-type pain.
84 The plaintiff’s explanation for not immediately sending the 13 June 2017 Incident Form to ARP was, in my opinion, understandable. At that time the plaintiff was uncertain as to his predicament. His past experience in a range of employment situations resulted in him not trusting employers or principals dealing with incident or injury forms. The plaintiff was not making any specific allegation against ARP, rather he was, based on his experience, concerned that a contemporaneous incident form may go missing. For this reason he retained the form. Whilst this may be regarded as a foolish, distrustful, cynical or sceptical attitude it was the plaintiff’s state of mind given his general past experience. The plaintiff did take a photograph of the accident scene on 13 June 2017 to show the blood on the floor as proof of an accident on that day. I accept the plaintiff’s evidence that he made a mistake when noting 16 June 2017 as the date of the accident in the Personal Insurance Claim Form. I do not accept that it ought be inferred from this error that it is improbable the plaintiff had completed the 13 June 2017 Incident Report Form on that date. I do not accept the submission of the defendant’s counsel that the plaintiff completed the 13 June 2017 Incident Report Form on a later date and backdated the document.
85 The plaintiff’s circumstances shortly after 13 June 2017 were chaotic. I accept his evidence that he was experiencing severe low back pain with pain into both legs. He went out on the evening of 15 June 2017 and attempted suicide. He was hospitalised and was then an inpatient in a mental hospital for about a week. He gave a graphic description of his distressed state when cross-examined about the histories recorded in hospital records. The plaintiff said he did tell Dr Miller of his accident when he fell from the ladder on 13 June 2017 when he saw Dr Miller on 23 June 2017, however there is no note of this in Dr Miller’s clinical records or reports. I have taken this into account in assessing the plaintiff’s credit. This was a consultation with a patient who had recently attempted suicide and had just been released from a mental hospital. In the absence of oral evidence from Dr Miller I am reluctant to make any further findings as to what may or may not have been said at this consultation and for the reasons that follow I do not consider it necessary to do so.
86 There were, in my opinion, four pieces of evidence that adversely affected Barassi’s credit:
(1)Barassi was adamant that he had only engaged the plaintiff as a subcontractor on an ad hoc or job-by-job basis. This is contradicted by Goh’s file note completed on 21 September 2017:
“… The employer also advised that the claimant worked full- time from start of contract which is expected to carry on indefinitely until they ran out of work.”
Barassi denied making this statement. Goh was investigating the plaintiff’s engagement with ARP. His file notes generally are clear and detailed. Goh did not give evidence. I accept the accuracy of this file note and I find that Barassi did tell Goh that the plaintiff worked full time for ARP and it was expected that he would continue to work for ARP indefinitely until ARP ran out of work.
(2)Barassi accepted that ARP usually issued periodic contracts for subcontractors but this was not done for the plaintiff. His explanation for the failure to issue the plaintiff with a periodic contract was:
“… No, because they didn't know how much work he was going to do”. (T199)
In my opinion, this evidence is somewhat non-sensical as, according to Barassi, the plaintiff was engaged by ARP on a job-by-job basis. He therefore had worked on three different jobs from 1 May 2017 to the time of his accident.
(3)In Barassi’s first affidavit he refers to the plaintiff invoicing, on the plaintiff’s letterhead, ARP for work performed. The affidavit evidence of Barassi on the invoicing arrangement was, in my opinion, most misleading. ARP provided the plaintiff with an Excel invoice template. The plaintiff had to use this template. The plaintiff simply inserted his hours of work into the template and the invoice was created. I found Barassi’s evidence on this topic to have been completely unsatisfactory.
(4)In his first affidavit Barassi asserted that, “He was not provided with direction or supervision by ARP when on site, but rather operated independently and set his own hours of work”. In my opinion this is a most misleading description of the plaintiff’s general working arrangement with ARP. The details provided by Barassi in the first affidavit on the actual work arrangements were very brief indeed and did not accurately reflect the complete arrangement between the plaintiff and ARP. Barassi only descends to further details when he responds to the plaintiff’s second affidavit.
87 For these reasons insofar as there is conflict between the plaintiff and Barassi on the contractual arrangement between the plaintiff and ARP, I prefer and accept the evidence of the plaintiff. Similarly, insofar as there is conflict between the plaintiff and Barassi on the complaint of injury made by the plaintiff following the fall on 13 June 2017, I accept the evidence of the plaintiff. In my opinion the conflict between the plaintiff and Barassi on the conversations in late August 2017 in respect of the WorkCover claim form are of little importance having regard to the issues in dispute.
88 In considering the application of the common law test of employer and employee and the “employer” and “worker” definitions in s3 of the Act I make the following findings of fact:
(1)The plaintiff and Barassi entered into an agreement in April 2017 whereby the plaintiff was to work for ARP on a full-time and permanent basis as a shopfitter. This agreement was permanent in that it was to last for the foreseeable future. ARP had work lined up until at least Christmas 1997. It was agreed that the plaintiff would be engaged onsite and he would also work at the factory or office between onsite jobs.
(2)The plaintiff did work on a full time and continuous basis for ARP from 1 May 2017 to 15 June 2017, save and except for two days on 23 and 24 May 2017. In respect of those two days the plaintiff had asked Barassi for this time off and Barassi agreed to this request.
(3)The plaintiff worked exclusively for ARP during the period 1 May 2017 to 15 June 2017.
(4)The plaintiff worked both onsite and at the ARP factory.
(5)The plaintiff’s work as a shopfitter required him to not only engage in the tasks of a shopfitter but also to supervise numerous subcontractors on behalf of ARP. The plaintiff was required to personally perform all of these duties. He could not and did not delegate the performance of these duties, nor did he employ others.
(6)ARP did have the right to exercise control over the manner in which the plaintiff performed his duties.
(7)The plaintiff could not set his own hours of work. He was required by ARP to be onsite by 6.30am to 7.00am. He had the keys so he had to open the site for various tradesmen. He worked the usual hours in a working day.
(8)ARP provided most materials. In the unlikely event that the plaintiff had to provide materials he would be reimbursed by ARP.
(9)The plaintiff provided his own hand tools and ARP provided the larger onsite tools and equipment.
(10)The plaintiff was both identified as and was part and parcel of the ARP organisation or business. He wore an old ARP shirt onsite. He was described by Barassi as Barassi’s leading hand. He supervised other tradesmen as ARP’s representative. He was presented to clients as part of the ARP workforce. He was described in documents as the site contact/site supervisor/first aider.
(11)The plaintiff did not generate goodwill from his work for himself, rather it was seen as the goodwill of ARP.
(12)ARP provided a truck and logbook for use by the plaintiff amongst others when onsite.
(13)ARP provided an Excel spreadsheet invoice template to be used by the plaintiff to generate weekly invoices. The plaintiff inserted his hours of work into the template. His remuneration was calculated and he was paid. The invoices were in the plaintiff’s name but they did contain a reference to the ABN number for Empire Floor Group.
(14)The plaintiff was paid an hourly rate of $55. He did not receive holiday pay. He did not accrue annual leave. He was only paid for his work. He invoiced the defendant for work performed on a weekly basis and, if applicable, living away expenses, and he charged GST.
(15)ARP did request the plaintiff obtain an official ARP email address.
89 In considering the common law test I have had regard to all of the submissions of the parties and in particular the following matters relied on by the defendant:
(1)The plaintiff did have an ABN number for his business name Empire Floor Group.
(2)The hourly rate was $55. This was more than an hourly rate for an employee, however the plaintiff did explain the basis of this rate.
(3)The plaintiff invoiced ARP for work performed on a weekly basis with living away expenses and charged GST.
(4)The plaintiff had his own income protection and public liability insurance policies.
(5)The Defence does refer to taxation returns, however these were not tendered in evidence.
90 Having regard to the relevant range of indicia referred to in the authorities and on the basis of the findings of fact referred to above I am satisfied the plaintiff was a common law employee and therefore was a “worker” and ARP was an “employer” within the meaning of s3 of the Act. In my opinion significant relevant indicia were: the terms of the plaintiff’s engagement, he was engaged on a full time permanent basis; the nature, extent and use of control strongly point to this being an employer/employee relationship; and the plaintiff was integrated into the business of ARP to a very great extent. Whilst the method of remuneration and absence of leave entitlements are factors in favour of the defence position on balance in all the circumstances I am satisfied this was a common law employer/employee relationship.
91 If I am wrong in this conclusion it is not in issue that having regard to my finding of fact that the plaintiff was engaged by ARP on a full time permanent basis he does satisfy the criteria in the “contractor” provision of s9 of Schedule 1 of the Act. In my opinion this concession was correctly made by the defence. It is therefore unnecessary to consider this deeming provision further.
92 I accept the plaintiff’s evidence that he suffered a low back injury when he fell from a ladder on 13 June 2017 in the course of his employment. There was a witness to this accident, Martin Brennan. He was working for ARP onsite. He has not been called to give evidence and there is no evidence to explain his failure to give evidence. In my opinion he is properly characterised as being in the camp of the defendant. Whilst I do not speculate as to what he might have said had he been called to give evidence, I do infer that his evidence would not have assisted the defence case. (Jones v Dunkel (1959) 101 CLR 298) In my opinion the nature of this accident is entirely consistent with the plaintiff sustaining a low back injury in the fall. The weight of medical evidence is that the plaintiff injured his low back in the fall although there is a dispute as to the nature of injury.
93 In considering whether this low back injury is a “serious injury” as defined I must consider the nature and extent of the compensable injury. In accordance with Petkovski v Galletti I must undertake an analysis of the extent of impairment of body function before and after the relevant injury.
94 It was submitted on behalf of the defendant that I could not be satisfied any low back injury was a “serious injury” as defined having regard to the plaintiff’s extensive pre-existing history of back pain, his past use of strong medication for pain relief and the consultation with Dr Miller on 9 June 2017 in which the plaintiff complained of low back pain and right foot paraesthesia, Dr Miller recommended a CT scan and there was discussion about a referral to a specialist. It was submitted on behalf of the defendant that the absence of evidence from Dr Miller in respect of causation together with the absence of evidence from the Northern Hospital and Broadmeadows Hospital in respect of any back injury was significant. It was also submitted on behalf of the defendant that no doctor had a complete and accurate history save for Mr Siu.
95 I do not accept these submissions for these reasons. I find the notes and reports of Dr Miller do not assist the plaintiff’s case. This is significant as Dr Miller was the plaintiff’s longstanding GP and he had seen the plaintiff shortly prior to and after the 13 June 2017 accident. I make a similar finding in respect of the hospital notes from the Northern Hospital and absence of notes from the Broadmeadows Hospital. I do, however, accept the plaintiff’s evidence on the different nature of his low back and leg symptoms before and after the fall. The plaintiff’s post-accident symptoms were of severe pain in the low back together with pain in both legs. This was the history recorded by both the plaintiff’s treating surgeon Mr Gonzalvo and treating neurologist Dr Archer. It is markedly different to the history of symptoms recorded in the notes of the three consultations with GPs in May and June 2017. It is also entirely different to the periodic muscular pain, albeit with some paraesthesia in the right foot, said to have been experienced by the plaintiff prior to the accident. The plaintiff had no time off work as a result of back pain prior to this accident. I accept the plaintiff’s evidence that he has not been able to work since 15 June 2017, initially as a result of severe back and leg pain, then post-surgery as a result of severe ongoing back pain. The only medical evidence in respect of his low back condition before the accident is contained in the three brief clinical notes from GPs dated 10 May 2017, 24 May 2017 and 9 June 2017, to which I have referred.
96 I find that the plaintiff suffered disc injury to the lumbar spine, together with aggravation of lumbar spondylosis and left L4 radiculopathy in the accident on 13 June 2017. I accept the opinions of Professor Bittar to which I have referred, in particular that the plaintiff’s total incapacity for work was as a direct result of the low back injury sustained in the fall at work on 13 June 2017, in preference to the opinions of Mr Siu and Dr Archer. I do not accept that the plaintiff sustained simply a soft-tissue injury in the fall. This is not, in my opinion, consistent with the plaintiff’s evidence of severe persisting low back pain together with pain in the legs following the fall. I find the plaintiff did have severe persisting symptoms of low back pain and pain in the legs following the fall at work on 13 June 2017 which necessitated spinal surgery in May 2018. I find the plaintiff has suffered permanent impairment of the spine as a result of the compensable low back injury on 13 June 2017 and this is both serious with respect to pain and suffering and loss of earning capacity and permanent.
97 Accordingly I grant leave to the plaintiff to bring proceedings for the recovery of damages in respect of the low back injury sustained on 13 June 2017. I make a declaration that the plaintiff is a worker within the meaning of the Act. I shall hear the parties on the appropriate formal orders.
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