Walters v VWA
[2020] VCC 1716
•30 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-06074
| JACK WALTERS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 & 29 July 2020 | |
DATE OF JUDGMENT: | 30 October 2020 | |
CASE MAY BE CITED AS: | Walters v VWA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1716 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury – pain and suffering – narrative test - loss of earnings-worker under 26 at date of injury- application of common law principles – serious injury refused on both limbs
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Ammerlaan v DC Roof Tiling Pty Ltd and Victorian WorkCover Authority [2015] VCC 1421; Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; Capper v Munday Sales Pty Ltd [2013] VCC 1015; CEM OGE v VWA [2016] VCC 1664; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden v Maxwell Engineering [2010] VSCA 69; Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 26; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Jarvis v Woolworths Limited [2012] VCC 1329; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Sabo v George Weston Foods [2009] VSCA 242; Sharma v Chandler Personnel Services Pty Ltd [2018] VCC 1658; State of New South Wales v Moss [2000] NSWCA 133; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12; TTB SMS Pty Ltd v Reading [2020] VSCA 203;
Judgment: Application refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Ms A Ryan | Zaparas Lawyers |
| For the Defendant | Ms G J Cooper | Wisewould Mahony |
HIS HONOUR:
Introduction
1 The plaintiff seeks the grant of a serious injury for leave to bring proceedings pursuant for pain and suffering and for pecuniary loss damages in accordance with the provisions of s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) for injuries occasioned to the function of the spine. He was represented by Mr J Richards QC with Ms A Ryan of counsel. The defendant was represented by Ms G J Cooper of counsel.
2 The application is brought pursuant to clause (a) of the definition of “serious injury” as that term is defined in s325(1) of the Act. The impairment of body function relied upon is the spine, with the injury described in the Originating Motion as an aggravation of the lumbosacral spine.
Relevant legal principles
3 The Court must not give leave to a plaintiff unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s325(1) of the Act.
4 Paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act reads:
“‘Serious injury’ means –
(a) Permanent serious impairment or loss of a body function ….”
5 To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of or due to the nature of his employment with the employer on or after 1 July 2014;[1]
[1]Section 5(1)(a) of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33 (‘Barwon’).
(b) “the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
(c) the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[3]
[2]Barwon [2005] VSCA 33 at [33].
[3]Section 325(2)(c) of the Act.
6 The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
7 In determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, when viewed objectively, arising from the injury.
8 In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[4]
[4]Section 325(2)(h) of the Act.
(b) must assess whether “the injury” is a “serious injury” as at the time the application is heard;[5]
(c) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[6]
[5]Section 325(2)(j) of the Act.
[6]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at [23]-[26].
9 The question of whether an injury satisfies the narrative test is largely a question of impression or value judgement.[7]
[7]See Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, 628; see also Sabo v George Weston Foods [2009] VSCA 242 at [67].
10 In TTB SMS Pty Ltd v Reading[8], Tate and T Forrest JJA had occasion to emphasise the essential aspects to which consideration is to be given on a serious injury application in a pain and suffering case and these are:
[8][2020] VSCA 203.
(a) serious injury means permanent serious impairment or loss of a body function;[9]
[9]Section 325 of the Act.
(b) an impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;[10]
(c) in assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[11]
[10]Section 325 of the Act. This formulation picked up the language in Humphries, which concerned similar provisions in the Transport Accident Act 1986.
[11]Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (‘Dwyer’), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181 at [44] per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12 at [77] per Ross AJA, quoting Dwyer [2008] VSCA 260 at [27]).
The plaintiff’s lay evidence
11 The plaintiff relied on the following:
· affidavit of plaintiff dated 22 May 2019;[12]
[12]Exhibit P1, Plaintiff’s Court Book (‘PCB’) 1-8.
· further affidavit of plaintiff dated 21 July 2020;[13]
[13]Exhibit P1, PCB 9-13.
· affidavit of Jill Robinson (the plaintiff’s mother) dated 23 July 2020;[14]
· affidavit of Bronwyn Hewitt (the plaintiff’s manager) dated 24 July 2020.[15]
[14]Exhibit P2, PCB 14-17.
[15]Exhibit P3, PCB 18-21.
The plaintiff’s medical evidence
12 The plaintiff relied on the following reports:
· Reports of Dr David Awburn dated 28 May 2016, 23 June 2016, 19 July 2016 and 19 July 2016;[16]
[16]Exhibit P4, PCB 24-27.
· Reports of Ms Bianca Myers dated 9 August 2016, 2 May 2017 and 2 May 2017;[17]
[17]Exhibit P5, PCB 28-33.
· Reports of Dr G.N Stathakopoulos dated 10 October 2016, 21 July 2017 and 21 December 2017;[18]
[18]Exhibit P6, PCB 34-37.
· Reports of Dr Robert Gassin dated 8 December 2016, 14 June 2017, 6 September 2017 and 8 September 2017;[19]
[19]Exhibit P7, PCB 38-42.
· Report of Dr Meena Mittal dated 6 December 2018;[20]
[20]Exhibit P8, PCB 47-50.
· Report of Dr Joseph Slesenger dated 29 December 2018;[21]
[21]Exhibit P9, PCB 51-58.
· Reports of Dr Mohammad Awad dated 4 January 2019 and 17 July 2020;[22]
[22]Exhibit P10, PCB 59-67.
· Report of Dr Nicholas Ingram dated 31 January 2019;[23]
[23]Exhibit P11, PCB 68-71.
· Radiology reports dated 24 May 2016 and 21 June 2016;[24]
[24]Exhibit P12, PCB 72-74.
· Worker’s Injury Claim form dated 13 June 2015;[25] and
· Report of Dr Carl Rasch dated 24 July 2020.[26]
[25]Exhibit P13, PCB 75-76.
[26]Exhibit P14, PCB 77-78.
The defendant’s lay evidence
13 The defendant relied on the following:
· Affidavit of Jelena Pavic, undated[27]
[27]Exhibit D1, Defendant’s Court Book (‘DCB’) 4-36.
The defendant’s medical evidence
14 The defendant relied on the following reports:
· Report of Ms Bianca Myers dated 1 August 2016;[28]
[28]Exhibit D2, DCB 37-40.
· Reports of Dr Peter Boys dated 16 August 2016, 21 July 2017 and 14 August 2017;[29]
[29]Exhibit D3, DCB 41-61.
· Report of Mr Timothy Gale dated 13 March 2018;[30]
[30]Exhibit D4, DCB 62-68.
· Report of Mr Roy Carey dated 1 July 2019;[31]
[31]Exhibit D5, DCB 69-76.
· Notes of Victoria Sports & Rehabilitation Centre;[32]
· Medical Panel report dated 20 April 2018 (says to leave for the moment in exhibit list) [33]
[32]Exhibit D6, DCB 95-117.
[33]Exhibit D7.
15 In reaching my conclusion, I have read and had regard to all of the lay and medical evidence relied on together with the affidavit evidence and the cross-examination and re-examination of the plaintiff and the cross-examination of Ms Hewitt, together with the final addresses of counsel.
The plaintiff
16 The plaintiff is aged 23. He was born and raised in Mount Eliza, Australia. I assessed him to be a relatively straightforward and unaffected young fellow. However, I have concluded that some of his evidence was unreliable such as, when in the course of cross-examination, he recounted the circumstances in which he came to be terminated from his employment with The Good Guys where he sustained his work injury. I think it is likely that his evidence about his former employer was born of a sense of some injustice on his part about how he was managed by his employer. Despite his gripes and complaints about a lack of attention to post-injury accommodation by his former employer, there is no objective basis to them and I have no reason to be critical at all of the management of the plaintiff’s injury and his eventual termination of his employment. I am also satisfied that the plaintiff quite significantly exaggerated the level of his ongoing experience of pain and the extent of his sleep disturbance caused by it.
17 The plaintiff has no relevant prior medical history.
18 The plaintiff was schooled to Year 11. He worked for a gas company for nine months. He commenced working for The Good Guys as a warehouse assistant on 1 October 2014. His work was full-time, 9.00am to 5.00pm, five days a week between Monday and Sunday. He worked in the warehouse area and on shop floor where he assisted customers with purchases, restocked shelving and managed orders. He also dealt with customers on the shop floor.
19 He deposed that his job required constant heavy lifting which he was required to do as part of his work without any assistance, even though he had asked his employer for assistance.
Injury
20 In May 2015, the plaintiff was transferring a microwave from a stack on the ground to place it on a flatbed trolley when he twisted and injured his back. Immediately he experienced severe low back pain. He attended a chiropractor and was told to take a day off. He said that because of a lack of staff he was required to attend work the following day. He said he remained at work, and for a significant period of time, his employer did not provide him with any modified duties even though they are aware of his back injury. I do not accept that evidence. I am satisfied that the plaintiff was engaged in light office duties by at least the middle of August 2015. No formal written modified duties were formulated until 2016 but that is explicable because the plaintiff did not engage with a medical practitioner until 2016.
21 The plaintiff said that his employer often did not comply with his certificate of capacity and would make him work on his own without assistance to lift. I also do not accept that evidence.
22 The plaintiff was ultimately dismissed from his employment in February 2018 for conduct. They were not high-end conduct issues but appear to have involved the plaintiff’s attitude, behaviour and punctuality. Whilst still in The Good Guys’ employ, the plaintiff was taking antidepressant medications. I accept that the plaintiff had a very bad reaction to a suite of them and altered dosages did not appear to mitigate their ill effects. Whether the plaintiff has, with hindsight, justified his termination from employment because of his medical condition, I do not accept his affidavit evidence that he was terminated because of an inability to carry out the inherent requirements of the job.
Jelena Pavic
23 The defendant included an affidavit from Ms Pavic[34] who described herself as the human resources business partner of The Good Guys discount warehouses. She deposed that the plaintiff was not dismissed due to his inability to carry out the inherent requirements of the role, but because of ongoing breaches of the defendant’s code of conduct. She said the defendant was aware of the plaintiff’s medical restrictions and sought to accommodate him. She said the plaintiff was provided a combination of stocktake duties, warehouse duties and administration duties in order to accommodate his medical restrictions. I accept her evidence.
[34]Exhibit D1.
Post-termination employment
24 The plaintiff has worked consistently since his injury and leaving the employ of The Good Guys. He worked at Kirk’s Restaurant in Mornington for about five weeks. He then undertook casual work at the Deck Restaurant in Frankston as a hospitality worker. He took up work at the RSL in Rosebud on a casual basis three to five days a week for about a year from mid-2018 to mid-2019[35].
[35]Transcript (‘T’) 50.
25 The plaintiff said that at the end of a shift of work at the RSL he found his back to be very sore. He said the work required him to do strenuous tasks that increased his pain levels. He said on some occasions he was required to finish work at the RSL early due to his pain. However, he did not seek any medical attention during this time.
26 The plaintiff said he enjoyed his work at the RSL. Dr Ingram, consultant psychiatrist, to whom the plaintiff was referred by his solicitors, in his report dated 31 January 2019[36] commented how the plaintiff said “he loved the work and would have worked longer hours if they had been available”[37]. When asked about this in evidence, the plaintiff was unpersuasive in his answers[38]. At one point he said, that had more hours been available to him he would have undertaken them “if my back didn’t hurt as much but yeah, definitely, I enjoyed it, yeah.”[39] Later, he said he doubted if he would have been offered more hours by the club manager because of his back. He also mentioned a part-time job on offer at the club but he did not think it would have been offered to him. Lastly, he said there may have been more hours on offer at the RSL “but I probably wouldn’t have taken it.”[40] His explanations were confusing. At any rate, I am satisfied that he was working approximately 15 to 20 hours a week at the RSL at the time.[41]
[36]Exhibit P11.
[37]Exhibit P11, PCB 69.
[38]See exchange at T49-50.
[39]T49.
[40]T50.
[41]T50.
Treatment
27 The plaintiff sought no medical treatment between February 2018 and May 2020. Recently in May this year, he engaged with a new chiropractor, Dr Rasch, but otherwise he remains self-caring. The plaintiff said that he has not consulted his general practitioner in a while “because I’m no longer able to afford it.”[42] While sympathetic to financial impositions, the plaintiff is presently earning more money than he ever has, and I find it difficult to accept that if he is suffering the extent of pain he claims, that he would not either pay for a doctor or attend a bulkbilling clinic. He agreed with Ms Cooper that the latter was an option that was open to him.
[42]Exhibit P1, PCB 4.
28 Although the plaintiff suffered his work injury in 2015, he did not consult a doctor about his back until 2016. He attended on a physiotherapist initially on 31 May 2015, and subsequently received physiotherapy treatment from Bianca Myers through to 2017. He also undertook clinical Pilates and hydrotherapy, but they provided no ongoing benefit.
29 An x-ray of the lumbosacral spine and an x-ray of the thoracic spine was taken in May 2016. He said his general practitioner had told him not to lift anything more than 5 kilograms. He was prescribed Tramadol and Voltaren. There is no current treating doctor’s opinion, and that is unhelpful in being able to obtain objective evidence of present limitations.
30 In June 2016, his general practitioner sent him for an MRI of the lumbar spine.
31 The plaintiff also saw Dr Gassin, pain specialist, who, in 2016, recommended nerve blocks, but this did not result in any significant improvement. The plaintiff had facet joint injections in 2017, but these did not provide any assistance either. He took a variety of medications, including opioids, but again with no alleviation from pain. In fact, despite the organic nature of the impaired function, the plaintiff’s back injury has been immune to pain remediation.
32 In about October 2016, he was referred to Professor Richard Bittar, neurosurgeon.
33 In January 2017, he commenced to see Georgina Speak, a psychologist, with whom he had five sessions. The plaintiff has attributed a lot of upset in his life to the effects on him of medications prescribed for his mental state. The adverse side effects were also attested to by his mother, Ms Robinson, in her affidavit.
34 The plaintiff said that, on 13 September 2017, the insurer terminated his medical expenses and that on 21 September 2017, the insurer rejected a request for branch blocks from Dr Gassin.
35 As to the plaintiff’s physical pain, he said Panadeine Forte did not help him. He is not currently prescribed any pain relief. He takes no over-the-counter pain relief medications. He said he simply puts up with his pain. I found this difficult to reconcile with his account of pain, which he said was constant and always at least a 3 or 4 out of 10, and that about three times a week he may experience a flare-up that elevates his pain to 9 out of 10.
Pain and suffering consequences
36 The plaintiff said he broke up with his girlfriend as they were fighting a lot and the medication he was taking made him quite angry and depressed, and that this had a significant adverse impact on the relationship. He is now single and does not want a girlfriend as he believes he would be a burden because of his back injury and accompanying limitations. He lives with his father.
37 Ms Robinson deposed in her affidavit dated 21 July 2020[43] that before his injury her son was extremely outgoing and he was very popular and well-liked and had an extremely active social life. She said after the accident he changed significantly. She said he took antidepressants for a time, which was the most awful thing to watch, because she saw him fall apart and he became “angry, aggressive, he lost all his friends, and he lost his ability to socialise and his ability to function effectively this diminished.”[44]
[43]Exhibit P2.
[44]Exhibit P2, PCB 15.
38 The plaintiff said that before his injury he used to go out approximately three nights a week but, nowadays, it is perhaps twice a month. If he does go out his pain levels increase such that, the following day, he finds it difficult to move around. Ms Cooper suggested to the plaintiff that with a full time job his social life would naturally enough be reduced, but I think this argument rings somewhat hollow, as the plaintiff appears to have managed to maintain a full-time job with The Good Guys as well as pursue a social life.
39 The plaintiff deposed in his first affidavit of May 2019 of waking in pain two or a three times at night, with the pain concentrated in his lumbar spine and down his legs.[45] Often he receives little sleep and he wakes up feeling tired. While I accept he has occasional interrupted sleep, I think his affidavit evidence of May 2019 about the extent of it was exaggerated. For example, he saw Dr Mittal on 16 December 2018, who recorded that his sleep was stable[46]. His account of disturbed sleep is also at odds with the report he gave to Mr Ingram dated 31 January 2019, who reported that “His sleep had occasionally been disturbed because of the back pain but he has otherwise slept well and there had been no nightmares”[47]. The plaintiff said that whilst this might have been the order of things when recorded by Mr Ingram in January 2019, it is now otherwise[48]. I am mindful that in HadenvMaxwell Engineering[49] (‘Haden Engineering’) Maxwell P said this:
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. Mr McKinnon often experiences multiple painful awakenings in the course of a single night. As his counsel submitted, that is properly to be regarded as constituting a very considerable diminution in Mr McKinnon’s enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.[50]
[45]Exhibit P1, PCB 7.
[46]Exhibit P8, PCB 49.
[47]Exhibit P11, PCB 69
[48]T53.
[49][2010] VSCA 69.
[50]Haden Engineering [2010] VSCA 69 at [45].
40 I am not persuaded by the plaintiff’s account of such a deterioration in his sleep, and overall, I do not think his interruption from sleep to be of the order described in Haden Engineering. Moreover, and relevantly, there is nothing in the evidence to suggest that the extent of the sleep disturbance has interfered with the plaintiff being able to maintain full-time employment with his current employer.
41 The plaintiff described his main passion as music. He performed intermittently as a DJ but, it seems to me, on the evidence adduced at the hearing, that this was an ad hoc pursuit and consisted of him on occasions playing for friends at parties. There was certainly no indication he garnered any remuneration from it or that he intended to pursue it as a career. He said that since the injury he has been struggling to carry his DJ equipment, although he agreed in cross-examination, that this could be alleviated on a practical level by seeking assistance from a mate. He said he has completed two music production courses since his injury.[51] He said that although he undertook a music production course in 2019, he has been unable to continue to perform as a DJ due to the pain when carrying his equipment.
[51]T62.
42 He deposed how he finds little tasks can trigger severe pain in his back, such as bending over and taking a plate out of the dishwasher, or to retrieve a wine bottle out of the fridge. He assessed his pain at around 7/10 in his lower back after sitting for approximately 20 minutes. He said his pain has made him depressed and isolated, and he is concerned about his future.
Current employment
43 The plaintiff obtained employment as a production worker in June 2019 with a company called “Organ”. He commenced on a part-time basis but advanced to full-time. He said he requires a lot of rest breaks at work and he needs to alternate between sitting and standing and changing his position regularly.
44 The plaintiff described his job as a production job. He described his day this way:
“I'll get in in the morning, I will see what products we have on the shelf. I'll make the products by pouring certain types of liquids and resin hardener. So for that, I basically crouch down for - it would take me about 10, 15 minutes to do one part of it and I will get to the other one later and then I'll go grind the products and then I'll essentially just pack them and then I will just go through those three roles, they are the main things I do and the other thing is just basically packing other kinds of stuff or going to pick up stuff that we need and products.
…..
I don't have to lift anything heavy, which is good, but yeah, I can change around a lot which is really, really, really good for me.”[52]
[52]T54-55.
45 He said he does not have scheduled breaks. He works eight hours a day, five days a week but that it “might be more, it might be less.”[53] He commences between 8 or 9 and finishes between 3 to 5. He can commence early and finish early.
[53]T55.
46 He explained that if his back starts hurting he will leave early or do less during the day and make up for it the following day or come in on a Saturday to make up for lost time.
47 He explained that he might have anything from three to seven breaks during the day. He said they are just a quick break, “just to stop what I'm doing, go out the warehouse, just have a bit of a walk around”[54] or to perhaps “have a cigarette, something like that, go get some food maybe, just for lunch.”[55] He added that “if I need a cigarette or, probably if I finish maybe say pouring then the grinding, I will go for a break maybe and then I will come back to something else and do that for a couple of hours and maybe go for another one or go get some food. So it's pretty easy. It's not any like specific times or anything like that.”[56]
[54]T56.
[55]T56.
[56]T56.
48 He said he could not work a full day all the time, but quite often he can, and said “Yeah, I would say - I would definitely say most days but every, like, I don't know, maybe two weeks like I'll finish early because of my back pain and all that kind of stuff but I'll try and make it up as much as I can whenever I'm back in the work.” He added, “…if I hurt my back around about lunchtime, because that's when it starts hurting, or midday I'd say, if I go home early and it still hurts in the morning the next day, I won't get to work until 10, 10.30 and just work and just do initially what needs to be done, not the extra stuff that's just floating around”.
49 He agreed he was able to perform all the requirements of his role and said: “Yeah, I can, yeah. None of it involves heavy lifting or moving anything heavy so it's really, really good.”[57] He added:
“It's just – I mean, my job is brilliant for my situation. If it starts to hurt a bit, I will go do something on the exact opposite. If I'm standing up, I will go sit down or I'll either go have a break, then I'll go sit down. It will still annoy me more than what it is, but I can only just manage it. I'm being honest.”[58]
[57]T58.
[58]T66.
50 In re-examination the plaintiff was asked about his level of pain whilst giving evidence and he said: “5 to 6. Like, it's more annoying if anything, but if I distract myself, I can deal with it better.”[59]
[59]T65.
51 While I accept the plaintiff’s current job allows him a degree of flexibility, this does not make his employment unique, nor does it amount to a form of protected employment, as was submitted in final address by Mr Richards.
Bronwyn Hewitt
52 Ms Hewitt is the manager of the plaintiff’s employer. She hired the plaintiff. She is not a director of the company. She said the company is family-owned and she is a friend of the plaintiff’s mother. She determined after hearing of the plaintiff’s circumstances to offer him a job and believed the company could accommodate his restrictions. She said he initially commenced on a part-time basis but was made a permanent full-time employee. He works in the warehouse undertaking packaging and production. Another man is employed on a part time basis of five days a week 10.00am until 2.00pm. He assists the plaintiff as required. However, he is not employed as the plaintiff’s assistant, but is available during his hours to help if required.
53 Ms Hewitt said she is conscious that the plaintiff cannot lift heavy weights, although she did not explain the source of her information about this, and the business accommodates his restrictions either by her or other staff members lifting heavy weights for him when required.
54 Ms Hewitt said she has observed the plaintiff to be in quite a lot of pain and to struggle with the pain on a regular basis and she illustrated this by observing that the plaintiff will often stand during morning team meetings.
55 She said that probably every two to three weeks he will have a day off work and, at other times, he might take two consecutive days off work. She makes no formal record of his sick leave and there is an informality to the arrangement such that if he has time off he will make it up on other days. In any event, Ms Hewitt said she believed the plaintiff is probably owed a good deal of time in lieu due to the additional hours he puts in at work when required. Overall, I gained the impression that the plaintiff largely works as required by the law of supply and demand of the business, just as much as by any restrictions due to his back pain.
56 Despite the plaintiff’s evidence that he is required to take regular breaks at work, it appears that he is able to work at a sufficient pace to meet the supply and demand variances of the business. I accept that if he overdoes it, it will likely result in a day, or sometimes two days, off work.
57 When asked if the plaintiff had many days off, Ms Hewitt said, “He could have - it depends, you know. It might average out to a couple a month”[60] but she accepted that most days he is able to work and was able to carry out the requirements of the role. She said that if his pain gets worse during the course of a day he might go home early to rest or to attend appointments with his chiropractor who has he recently commenced attending. She thought the appointments are early in the afternoon and that the business is “pretty flexible but it's all about, do we have enough product on the shelves, do we have enough to post? So if we are low, he will come in on a weekend and do extra.”[61] In other words, on some days, the plaintiff will leave early because that is when his chiropractic sessions are scheduled. She described the workplace as fairly flexible for all employees, and “You're not doing the one thing all day.”[62] Ms Hewitt’s account was reflected in the plaintiff’s evidence.
[60]T73.
[61]T73.
[62]T72.
58 Ms Hewitt described the plaintiff as her “gofer”[63] and will attend to some deliveries and picking up of some stock. She said he “does all my running around”[64]. She said by way of example that:
“…if we have to pick up - like, today he would have picked up a few, just printing from Snap. Some deliveries go to the head office and some go to one of the other director's houses, like a little packet of chains or something that we order, so he will zoom off and get those.”[65]
[63]T72.
[64]T72.
[65]T72.
59 Taking into account all the evidence, I accept the plaintiff’s capacity for his current full-time work must be understood in the context of some limitations on what he can do unassisted, and also in the context of some accommodations made by his employer in terms of flexibility in accommodating absences.
An examination of the medical evidence
60 The plaintiff’s diagnosis remains uncertain. One view of the medicine is that he suffered a soft tissue injury, while the other is that of back pain by way of an aggravation of degenerative change brought on by a work-related injury. One matter that is common in the medical evidence, is that there is no structural or disc pathology to indicate a serious back injury condition.
61 In a Treating Health Professional Questionnaire submitted to Workcover dated 9 August 2016[66], Ms Myers, physiotherapist, noted that she was treating the plaintiff for “non-specific low back pain/biomechanical dysfunction.”[67] In a report dated 2 May 2017[68], Ms Myers wrote:
"Based on Jack's current presentation, he is most likely fit for pre-injury duties at work. He most likely doesn't require alternative duties, however, he has been educated on the importance of correct lifting techniques/postures, ergonomic set-up, etc. in order to prevent recurrent episodes."[69]
[66]Exhibit P5, PCB 28-30.
[67]Exhibit P5, PCB 28.
[68]Exhibit P5, PCB 31.
[69]Exhibit P5, PCB 31.
Dr Stathakopoulos, General Practitioner
62 Dr Stathakopoulos, the plaintiff’s former general practitioner, referred him to Professor Bittar, neurosurgeon, on 10 October 2016[70] and, in doing so, described the plaintiff as a man who had low back disability in the form of chronic pain in the region of his lower lumbar region and sacroiliac joints.[71]
[70]Exhibit P6, PCB 34.
[71]Exhibit P6, PCB 34.
63 Professor Bittar wrote to Dr Stathakopoulos on 17 November 2016[72]. He reported that the plaintiff’s complaint was of constant lower back pain predominantly in the lower lumbar region, with the pain in the back radiating through his buttocks into his hamstrings, but at that stage it was not travelling beyond his knees. On examination, he observed that the plaintiff walked with a non-antalgic gait and he had a full range of the spine flexion with moderate restriction of lumbar spine extension which was painful. Straight leg raising was normal bilaterally and there was no evidence of radiculopathy. Professor Bittar considered that the plaintiff presented with probable lower back pain arising from the facet joints. There was very little else relevantly identifiable in Professor Bittar’s report.
[72]DCB 93-94.
64 On 21 July 2017[73], in response to a request from WorkCover for a medical report, Dr Stathakopoulos wrote that the plaintiff had presented at the Humphries Road Medical Centre on 17 May 2016, when he had initially been seen by Dr Addison. She noted that the plaintiff had been attending an osteopath for the preceding 12 months regarding chronic low back pain which appeared to radiate down his legs and up his back. Her opinion was that the plaintiff required ongoing treatments to manage his condition.
[73]Exhibit P6, PCB 35-36.
65 Dr Stathakopoulos noted that in addition to a need for both:
“ongoing physiotherapy physiotherapy/Pilates/massage, I think it is imperative that Jack continues to have psychological support. Specifically this should be in the form of continuing consultations with his psychologist with whom he has developed a good rapport and is likely to be very therapeutic. I feel this is just as important as the physical treatment he’s receiving. With regards to the duration of these treatments, I cannot put a timeline on to them, rather continuing an ongoing monitoring and hopefully encouraging him to return to normal life with resolution of his symptoms. I’m somewhat perturbed at him being offered invasive treatments as I feel they may potentially reinforce the degree of injury."[74]
[74]Exhibit P6, PCB 35.
66 On 21 December 2017,[75] in answer to a further request for a medical report, Dr Stathakopoulos wrote that the plaintiff suffers from low back disability:
“… and there is evidence radiologically of early degenerative change in his facet joints. The inference from this is that his low back is subjected to strain above and beyond what one would expect for a person of his age. This has led to reactive changes in his facet joints as a result of chronic strain. Whilst radiologically, these change may not be “impressive”, this is because it is relatively early in the evolutionary phase of degenerative facet joint disease. In time I expect these changes to become more advanced with deteriorating radiological changes as well is (sic) chronic pain.
There does not appear to be a pre-existing condition of his lumbosacral spine in my records.
I believe his medical condition is largely contributed by his employment.”[76]
[75]Exhibit P6, PCB 37.
[76]Exhibit P6, PCB 37.
Dr Gassin, pain specialist
67 In a report dated 8 December 2016[77], Dr Gassin wrote to the workers compensation insurer, noting that the plaintiff was suffering from chronic lower back pain resulting from a work-related injury that had not responded to conservative medical treatment. He mentioned that he had requested acceptance for branch blocks and anticipated a need for them to be performed on up to two occasions.
[77]Exhibit P7, PCB 38.
68 Dr Gassin wrote again to the WorkCover insurer dated 6 September 2017[78], subsequent to a bilateral L3 and L4 medial branch blocks he performed. The blocks were negative, suggesting the plaintiff’s pain would not be responsive to radiofrequency of the L4-5 facet joints.
[78]Exhibit P7, PCB 41.
Dr Mittal, pain specialist and anaesthetist
69 Dr Mittal provided a report dated 16 December 2018[79] to the plaintiff’s solicitors. She said the plaintiff presented with a longstanding history of low pain that occurred in the context of a work-related injury. Since ceasing employment with The Good Guys, he had worked as a bartender on Saturday nights and at an RSL venue during the week on a part-time basis and had been “managing reasonably well without requiring any sick leave.”[80] She wrote that the job did not involve heavy lifting but did require repetitive bending. His pain was aggravated by sitting, standing and walking for prolonged periods of time. He had a sitting tolerance of 20 minutes, a standing tolerance of 20 minutes, and walking tolerance of up to 30 minutes. She described that his low back pain can be so severe “sometimes his lower limbs can give away.”[81] The pain is also worse on lumbar spine flexion as well as extension. He rated his pain to be 6/10 most days and this was accompanied by bilateral lower limb pain, which he described as radiating pain commencing on the lower back radiating to the posterior thigh area to both feet, associated as well with intermittent pins and needles in both feet but without numbness and weakness.
[79]Exhibit P8.
[80]Exhibit P8, PCB 48.
[81]Exhibit P8, PCB 48.
70 Dr Mittal canvassed the initial phases of the plaintiff’s treatment to have included osteopathic and chiropractic treatment and some physiotherapy for nine months, as well as four weeks of hydrotherapy. She tracked his medication which had included anti-neuropathic agents and opioids. Under the care of Dr Gassin, he had undergone bilateral L3 and L4 medial branch blocks, which was negative for diagnostic tests. He then underwent a bilateral L4-5 and L5-S1 medial branch diagnostic lock in August 2017.
71 Dr Mittal wrote that the plaintiff was living with his father and was independent with personal activities of daily living. He could lift 3 kilograms with either upper limb but not for prolonged periods or in a repetitive fashion. He struggles with domestic activities of daily living, particularly activities that require repetitive bending. He is able to drive short distances. Prior to injury, his principal hobby included working as a DJ, however, due to the need for prolonged standing, he was unable to continue with it. Although he had previously described to her increasing social isolation, this had recently improved. She reported his sleep as stable.
72 Dr Mittal found on examination that the plaintiff’s lumbar spine revealed a reduction in normal lumbar lordosis. There was paravertebral muscle spasm on the righthand side. He had normal flexion, but reduced extension. There was increased tenderness in the paravertebral spaces bilaterally in the lower lumbar spine. Facet joint loading bilaterally was positive. Lower limb neurological examination was within normal limits.
73 Dr Mittal referred to investigations that included the x-ray of the thoracic spine performed on 24 May 2016 that was normal, and an x-ray of the lumbosacral spine performed in May 2016. An MRI performed of the lumbar spine on 21 June 2016 had shaded in some mild bilateral facet joint arthropathy at L3-4 and L4-5, but there was no other abnormality noted. Her recommendations were for the plaintiff to remain under the care of his chronic pain specialist and she thought that he might benefit from a pain management program. She did not point to any structural defect, but her impression was of "myofascial pain and underlying facet joint pain."[82]
[82]Exhibit P8, PCB 49.
74 Dr Mittal did not think the plaintiff was fit for pre-injury employment duties or lifting in a repetitive fashion. However, she thought him fit for alternative duties. She thought him better suited for part-time duties in an occupation that requires changes of position every 20 to 30 minutes from sitting to standing to walking. She did not recommend repetitive bending and repetitive lifting, but he would, on occasion, be able to lift approximately 3 kilograms with each upper limb.
Dr Slesenger, occupational physician
75 Dr Slesenger provided a medico-legal report dated 29 December 2018[83] to the plaintiff’s solicitors. As part of his examination he had available previous medical reports, together with radiology comprising the x-ray thoracic and lumbosacral spine dated 24 May 2016 and an MRI scan of the lumbar spine dated 21 June 2016. He noted that the plaintiff said he suffered ongoing pain in the lower back that had persisted since the date of injury. The pain in both legs was described as “moderate to severe, dull with occasional sharp pain, and aggravated by activity.”[84]
[83]Exhibit P9.
[84]Exhibit P9, PCB 53.
76 Dr Slesenger described the plaintiff possessing the ability to walk, stand and sit for 20 minutes and to drive for 30 minutes. He noted that he was no longer under the care of Dr Gassin and he was not taking any medication. His activities of daily living included the ability to dress, wash, shower and toilet himself. He was living with his brother and father in Mount Eliza and he shared domestic duties, although he avoids heavy lifting such as making his bed and vacuuming.
77 As to sports and hobbies, Dr Slesenger noted the plaintiff had once enjoyed tennis but no longer participates, and he enjoyed DJ’ing, although he had not done so since the accident.
78 Dr Slesenger recorded the plaintiff’s employment history including periods at Kirk’s Restaurant in Mornington for about five weeks, one day a week at the Deck in Frankston as a bar/hospitality worker, and at the RSL in Rosebud working 3-4 days a week in a similar role totalling up to 17 hours a week (although this varied). The plaintiff told Dr Slesenger that the job tasks lay outside his capacity limits and he was regularly required to lift kegs and slabs of beer, boxes of wine, and was required to stand for prolonged periods. He said as a result, his back pain had deteriorated.
79 Dr Slesenger considered the plaintiff’s work with The Good Guys as a plausible cause of the plaintiff’s impairment. He said he did not consider the plaintiff was able to return to unrestricted preinjury duties but that he retained capacity for work with the following restrictions:
· “avoid prolonged static postures;
· avoid push, pull, carry or lift over 5 kg;
· avoid repetitive bending and twisting.”[85]
[85]Exhibit P9, PCB 58.
80 He considered the plaintiff’s prognosis as guarded given the period of impairment and disability and limited response to treatment date
Dr Awad, neurosurgeon
81 Dr Awad is a neurosurgeon and spinal surgeon who furnished a report to the plaintiff’s solicitors dated 4 January 2019.[86] He described the plaintiff’s current symptoms as constant low back pain which the plaintiff assessed as 5/10, and during a flareup as bad as 8/10. He reported a maximum sitting time of 20 minutes and the same for standing, and a maximum driving time of between 20 and 30 minutes. He reported the plaintiff’s sleep as reasonable on most occasions “but can be awoken from his sleep by pain and have poor sleep as a result.”[87] He experiences bilateral leg pain when his back pain is severe, and he can also experience bilateral numbness and tingling into his feet.
[86]Exhibit P10, PCB 59-62.
[87]Exhibit P10, PCB 60.
82 He said that the plaintiff’s treatment regime consisted of daily stretching exercises and the consumption of oral analgesia when required.
83 Dr Awad said the plaintiff had described a significant impact on his social life as a result of the injury, with him being unable to go out with his friends for too long or undertake any strenuous activities. Although he used to enjoy DJ work, because of the heaviness of equipment he was unable to continue to do so.
84 On examination, Dr Awad noted that the plaintiff walked with no gait abnormalities and had good flexion and was almost able to touch his toes but had very poor extension to only 10° approximately. Extension was much more painful than flexion. He was tender to palpation parasagittally over his facet joints at approximately L3-4 and L4-5.
85 Dr Awad diagnosed the plaintiff as suffering an aggravation of lumbar spondylosis and an acceleration of facet joint arthropathy. He considered the employment with The Good Guys had most likely been a significant contributing factor to the aggravation of the lumbar spondylosis and affected the facet joint arthropathy.
86 Regarding the plaintiff’s work capacity, he thought he:
“does not have the physical capacity to undertake preinjury employment. He clearly has the capacity to undertake alternative employment, which he is currently doing. He will in my opinion, however, be limited as to what employment he will be able to do as a result of his injury.”[88]
[88]Exhibit P10, PCB 61.
87 He considered that the plaintiff would “continue to suffer the consequences of this injury into the foreseeable future. This will be in the form of pain and mild [89]disability.”[90]
[89]Emphasis added.
[90]Exhibit P10, PCB 61.
88 In a subsequent report dated 17 July 2020[91], Mr Awad noted that the plaintiff estimated the frequency of bad flareups of pain as two to three times a week.[92] The plaintiff said he avoids painkillers “at all costs as he feels the last time he was taking oral analgesia it affected his mental health greatly.”[93]
[91]Exhibit P10, PCB 63-67.
[92]Exhibit P10, PCB 64.
[93]Exhibit P10, PCB 64.
89 In addressing the plaintiff’s work capacity, Dr Awad observed that the plaintiff was working full-time. He said that:
“It should be noted that he has only managing to do this as he is a manager and explains that he is able to take regular breaks every 20 to 30 minutes and alternate between walking, sitting and standing. He explains and that if he was unable to have these regular breaks he would not be able to perform his employment consistently and reliably. I therefore do not think that he would have realistic capacity in the open market for much in terms of alternative employment if he is certainly not allowed to do this.”[94]
[94]Exhibit P10, PCB 65.
90 Of course whilst his employer would appear to provide the plaintiff with considerable flexibility, he is not a manager, and the plaintiff explained away Dr Awad’s attribution of authority in this way in the course of his cross-examination by Ms Cooper:
“You've now got a new job as an operations at Orgone Effects Australia, is that right? --- More of a worker, I'm not the manager. I just like to say that to people because, you know, it sounds good.”[95]
[95]T54.
91 Dr Awad considered the plaintiff to be likely precluded and restricted with any employment activities involving pushing, pulling, bending, twisting, lifting, repetitive lumbar spine movements or any prolonged sitting or standing. He thought these incapacities were likely to continue into the foreseeable future. Although he believed the plaintiff had a capacity for alternative suitable employment he would require regular breaks and alternating between sitting, standing and walking on a regular basis and ideally, every 20 to 30 minutes, and that any “employment which does not allow this will be a limitation for him.”[96] He considered these requirements to last into the foreseeable future.
[96]Exhibit P10, PCB 67.
92 Dr Awad also thought that as a consequence of the injury the plaintiff:
“is likely also to be precluded or restricted with regard to social, domestic and recreational activities with anything that requires any pushing, pulling, bending, twisting, repetitive lumbar spine movements or any prolonged sitting or standing. Clearly this is going to affect his personal life into the foreseeable future.”[97]
[97]Exhibit P10, PCB 67.
93 As to his prognosis, Dr Awad was slightly less pessimistic than in his report from July 2019. He wrote that the plaintiff “would definitely continue to suffer the consequences of this injury now in the form of some degree of pain[98] and disability into the foreseeable future.”[99] However, he also noted that “as a result of his injury I do not believe he is at increased risk of accelerated degenerative change and is likely to suffer ongoing consequences due to this.”[100]
[98]Emphasis added.
[99]Exhibit P10, PCB 65.
[100]Exhibit P10, PCB 66.
Dr Rasch, chiropractor
94 Dr Rasch, in a report dated 24 July 2020[101], recorded that the plaintiff first presented to his office on 11 May 2020, complaining principally of constant right sacroiliac pain with right leg pins and needles to his toes, and the occasional left leg radiations. The pain reportedly was level 6 out of 10, but the plaintiff described it at times as going up to 9 out of 10 when aggravated with lifting. He diagnosed the plaintiff’s low back pain as:
“biomechanical dysfunction of the right sacroiliac and lower lumbar region with associated neuromuscular and facet joint degenerative changes with right leg paraesthesia.”[102]
[101]Exhibit P14.
[102]Exhibit P14, PCB 77.
95 He believed the plaintiff should be restricted in all repetitive movements and activities that aggravate his condition. He reported that most sustained activities aggravate the plaintiff after 15 minutes at which point he needs to change position. After approximately four hours of work the pain is aggravated for the remainder of the day and, after a few weeks of working, the pain is at a point where it is necessary for him to have a day off work with complete rest. He recommended that lifting should be limited to 10 kilograms and preferably only at waist height. He thought it best for the plaintiff to work on a part-time capacity for four hours a day in the foreseeable future as and when his pain commences due to fatigue.[103]
[103]Exhibit P14, PCB 78.
The Defendant’s medical material
Dr Boys, orthopaedic surgeon
96 Dr Peter Boys is a consultant orthopaedic surgeon who provided three independent medical legal reports to the defendant solicitors as a result of examination of the plaintiff. They are all quite old with the most recent dated 14 August 2017[104].
[104]Exhibit D3, DCB 59-61.
97 Dr Boys’ initial report dated 16 August 2016[105], following examination of the plaintiff on 12 August 2016, was prepared whilst the plaintiff was still employed by The Good Guys. He reported that the plaintiff had experienced low back pain on 19 May 2015 and he was maintaining a 5 kilogram lifting restriction at work. He noted that the plaintiff had commenced to consult Dr Auburn, general practitioner, in 2016 and he had taken Cymbalta for depression in association with anti-inflammatory medication. He observed that MRI studies of the lumbosacral spine of 21 June 2016 showed no abnormality of note, although mild degenerative changes of the facet joints had been noted.
[105]Exhibit D3, DCB 41-49.
98 Dr Boys reported that the plaintiff was living at home with his father and he was unrestricted with normal day-to-day activities, but he exercised care with low-level activities. He drove. As to recreational interests he was not “involved in active sports or hobbies.”[106]
[106]Exhibit D3, DCB 44.
99 Dr Boys considered the plaintiff capable of remaining at work and maintaining his then current work capacity. He concluded that the plaintiff had suffered simple muscle strain that affected the lumbar region, and that appropriate muscular reconditioning would abolish his current complaints. He noted that radiological evidence was of minor degenerative change within the facet joints of the lower lumbar spine but he did not believe those factors contributory to his current presentation.
100 Dr Boys provided a second report dated 21 July 2017[107], following a further examination of the plaintiff on 14 July 2017. At this time, he described the plaintiff as experiencing ongoing pain and, although he had been assessed by Dr Gassin, he had not at that stage progressed to interventional treatment such as medial branch blocks. Physiotherapy had been maintained until the end of May 2017. He had resumed his normal hours of employment with The Good Guys, working three days a week in the warehouse undertaking stocktake work, and then two days per week instore performing cashier’s duties, and that he worked with a normal lifting restriction of 5 kilograms, and he avoided repetitious lifting.
[107]Exhibit D3, DCB 50-58.
101 As to investigations, Dr Boys noted the prior radiological reports comprising plain radiographs of the thoracic and lumbar spine dated 24 May 2016, together with MRI examination of the lumbosacral spine dated 21 June 2016.
102 Dr Boys provided a third report dated 14 August 2017[108] that consisted of the provision by him of answers to additional questions put to him. Of note, he wrote, “There is no diagnosable musculoskeletal condition evident which would preclude preinjury hours and duties of employment.”[109]
[108]Exhibit D3, DCB 59-61.
[109]Exhibit D3, DCB 60.
Mr Gale, general surgeon
103 Mr Timothy Gale undertook an independent impairment assessment of the plaintiff on 13 March 2018[110]. Dr Gale set out the plaintiff’s medical history, which included that the plaintiff:
“does not take any form of tablet medications, he occasionally is reviewed by the family doctor, he experiences constant pain in the lower back, stating that he is never free of pain, but pain is of variable severity and is aggravated by sitting, standing, moving or walking.”[111]
[110]Exhibit D4.
[111]Exhibit D4, DCB 63.
104 Mr Gale noted that Waddell’s signs were positive. He explained that he had not been furnished with any imaging films for inspection and he cautioned this might have compromised his ability to accurately evaluate the plaintiff’s condition and determine his prognosis, although he had seen a report of a plain x-ray of the thoracic and lumbosacral spine dated May 2016, which he observed was 12 months after the incident of injury and the report described, “No bone or disk space abnormality is detected in the thoracic or lumbosacral spine.”[112]
[112]Exhibit D4, DCB 64.
105 Mr Gale also had a report of an MRI scan of the lumbar spine dated June 2016 that showed, “Mild bilateral facet joint arthropathy at L3/4 and L4/5. No intervertebral disc pathology has no narrowing of the lumbar spinal canal or neural exit canals.”[113]
[113]Exhibit D4, DCB 64.
106 He commented on a report dated November 2016 of an x-ray of the lumbosacral spine (with flexion and extension lateral views as requested) and an isotope bone scan with SPECT analysis and CT fusion. A plain x-ray of the thoracic and lumbosacral spine dated May 2016, and some 12 months after the injury, described “No bone or disc space abnormality is detected in the thoracic or lumbosacral spine.”[114] The plain x-ray of the lumbosacral spine was described as showing:
“a good range of flexion and extension obtained. Slight instability is present at the L4/5 level with posterior displacement of L4 relative to L5 by 4mm on extension but normal alignment on flexion. Spine appears otherwise normal in the lateral projection.” With regard to the isotope bone scan “the distribution of the nucleotide throughout the thoracic spine, lumbar spine, ribs and pelvis appears normal. No evidence of any active bone or joint diseases seen.”[115]
[114]Exhibit D4, DCB 64.
[115]Exhibit D4, DCB 64.
107 Mr Gale next analysed his findings by way of diagnosis and prognosis. He thought it unlikely there was any specific significant spinal injury caused by the plaintiff’s injury at work. He also thought the current clinical evaluation did not demonstrate consistent and constant physical abnormality, and there were no features to support a diagnosis of persistent physical radiculopathy. He noted that, at stages during consultation, it appeared the plaintiff had “an unrestricted range of back motion.”[116] He also noted that, although the worker described ongoing back symptoms, clinical examination suggested a significant non-organic component to the plaintiff’s current presentation.
[116]Exhibit D4, DCB 64.
108 He regarded the secondary effects of the plaintiff’s injury-rendered prognosis to be guarded but, from a physical perspective, with appropriate management, the prognosis might be favourable. He wrote:
“There is no current medical basis to believe the worker will suffer injury or harm by engaging in appropriate occupational and daily living activities. A maximal level of physical activity is likely to be of material benefit.”[117]
[117]Exhibit D4, DCB 64.
Mr Carey, orthopaedic surgeon
109 Roy Carey is a consultant orthopaedic spine surgeon who provided a report to the defendant solicitors dated 1 July 2019[118]. He had available to him the reports of Dr Boys dated 21 July 2017, the report of Dr Stathakopoulos dated 21 December 2017, the report of Mr Gale dated 13 March 2018, a Medical Panel Certificate of Opinion dated 3 June 2018, and the report of Dr Slesenger dated 29 December 2018.
[118]Exhibit D5.
110 The plaintiff told Mr Carey that he had not seen his general practitioner about his low back since 2018.
111 Mr Carey described the plaintiff as continuing to complain of suffering from right lumbosacral area pain that had spread across the lumbosacral spine to the left, and on occasion he experienced tingling and numbness and pins and needles in the feet, worse on the right. His back pain is constant but most of the time the legs are asymptomatic. He said his sleep is always disturbed by his back and he awakes stiff and sore in the morning. Even standing increases the pain and, in a crowded nightclub, someone bumping into him or sudden movement or stumbling may suddenly increase his pain.
112 Mr Carey reported the plaintiff’s limitation in performing DJ work as due to his inability to lift his equipment, and because he finds standing or leaning on the equipment impossible for more than a few minutes. Mr Carey reported that the plaintiff does not attend nightclubs as much, because of crowd bumping and the discomfort of prolonged standing.
113 Mr Carey examined the lumbar spine MRI of 21 June 2016 and said that in substance he agreed with the report, as the discs were of normal height and well-hydrated. He noted the conclusion as to “Mild bilateral facet joint arthropathy at L3/4 and L4 L5”,[119] but he considered this was very mild. He examined standing flexion/extension lumbar spine x-rays of 21 November 2016 on film that demonstrated a good range of motion with no obvious instability. He examined nuclear medicine/SPECT images of 21 November 2016, and considered they were normal; there was no increased activity in any disc space over the facets or, most importantly (given the comments of Dr Slesenger’s report dated 29 December 2018), no evidence of increased activity over the sacroiliac joints.
[119]Exhibit D4, DCB 64.
114 Mr Carey reported that the plaintiff experiences ongoing discomfort but less disability following the injury at work in May 2015. He said it was patently not possible for this to be a “musculoligamentous strain of or lower back injury…”[120], because a strain per se only lasts for six weeks or so at maximum. He thought an ongoing “soft tissue injury”[121] might be a better diagnosis. Overall, Mr Carey said he was unable to make a useful physical diagnosis. Despite this, he wrote that there were “no non-organic signs of abnormal illness behaviour. The description of the symptoms and their consequences were given in an extremely direct and stoic manner.”[122] He concluded his report by noting that he did “not consider therefore that his condition is primarily functional or psychologically based.”[123]
[120]Exhibit D5, DCB 74.
[121]Exhibit D5, DCB 75.
[122]Exhibit D5, DCB 76.
[123]Exhibit D5, DCB 76.
The plaintiff’s submissions
Pain and suffering
115 Mr Richards made a limited number of submissions concerning pain and suffering. He relied in large part on the oral evidence of the plaintiff and, to a lesser extent, the informal observations of Ms Hewitt of the plaintiff’s discomfort in the workplace, and the assessment of the plaintiff by Mr Carey, who examined the plaintiff for the defendant. As Mr Richards put matters, Mr Carey assessed the plaintiff as a straight shooter and someone with back pain that is constant and someone who, as Mr Richards summarised the case:
“…says his sleep is always disturbed by his back and he wakes stiff and sore in the mornings. Generally he feels better constantly changing position. Even standing increases the pain, and in crowds (or at a nightclub), someone bumping him, sudden movements, stumbling, etc, may suddenly increase the pain."[124]
[124]Exhibit D5, DCB 72.
116 Mr Richards submitted that for a 25 year old man to be left with these symptoms into the foreseeable future of itself qualifies as a serious injury in terms of pain and suffering. He contended that to have constant back pain, with some referred pain into the legs, pins and needles and numbness such that sleep is always disturbed, and that even standing increases pain when exacerbated by sudden movements, are serious consequences. Bending makes the subject pain worse. The plaintiff is restricted to being able to only drive for about 20 minutes. He no longer undertakes DJ work for pleasure because he is unable to lift the equipment. He does not attend nightclubs as much because of uncertainty with crowds bumping him and the discomfort brought on with prolonged standing.
117 Mr Richards submitted that, in order to refuse a certificate for pain and suffering, I would need either to be persuaded that there is no organic basis stemming from the work injury that manifests itself in pain and limitations such that it “all in his mind” or, alternatively, accepting the account of pain and limitation, it does not satisfy the range. As to the first alternative, Mr Richards relied on the observation by Mr Carey that, "There were no non-organic signs or abnormal illness behaviour. The description of the symptoms and their consequences was given in an extremely direct and stoic manner."[125]
[125]Exhibit D5, DCB 76.
Defendant’s submissions
Pain and suffering
118 The defendant submitted that neither the medical evidence nor the consequences relied on by the plaintiff were very considerable and hence the plaintiff had not met and discharged the threshold requirement for the grant of a certificate for pain and suffering.
119 Ms Cooper relied on the following submissions. The plaintiff is not suffering from a permanent serious impairment to the function of his spine. She referred to the absence of any diagnostic evidence of structural damage, a matter that is the common assessment of all who have treated the plaintiff and had seen him for medico-legal opinions. No doctor has found evidence of neurological compromise, in her submission.
120 In particular, Ms Cooper submitted that the disc pathology discloses nothing greater than mild degeneration of the facet joints. There is no loss of structural integrity. Ms Cooper referred to Dr Boys, who saw the plaintiff firstly in August 2016.[126] He wrote that:
"MRI studies of the lumbosacral spine taken 21 June 16 have shown no abnormality of note. Mild degenerative changes of the facet joints are noted."[127]
[126]Exhibit D3, DCB 41.
[127]Exhibit D3, DCB 43.
121 On examination of the plaintiff he noted that:
"Examination shows a lean, agile man in no distress. His seated posture is normal. His standing posture is normal. His spine is straight. No localised tenderness on palpation. Gait is normal. He can heel and toe walk comfortably."[128]
[128]Exhibit D3, DCB 44.
122 He added that:
"He can place his fingertips to his mid-shin. His rhythm and range of spine extension from that position is fill although discomfort is described end range. Lateral flexion and rotary movements are full. There is no evidence of muscle spasm accompanying movement. Hip movements are full. Straight leg raising, 80 degrees bilaterally."[129]
[129]Exhibit D3, DCB 44.
123 He continued:
"Neurological examination of the lower limbs shows intact muscle power, normal sensation and symmetrical deep tendon reflexes."[130]
[130]Exhibit D3, DCB 44.
124 Ms Cooper observed that Dr Boys had recommended treatment in the form of reconditioning of the core supporting muscles of the lower back. In terms of diagnosis Dr Boys stated:
"I believe this gentleman suffers simple muscle strain affecting the lumbar region. Appropriate muscular reconditioning will abolish current complaints. Radiological evidence of minor degenerative changes within the facet joints of the lower lumbar spine is evident. I do not believe these factors are contributory to this gentleman’s current presentation.”[131]
[131]Exhibit D3, DCB 47.
125 In a supplementary report dated 14 August 2017[132], Dr Boys noted:
"There is no diagnosable musculoskeletal condition evident which would preclude pre-injury hours and duties of employment."[133]
[132]Exhibit D3, DCB 59-61.
[133]Exhibit D3, DCB 60.
126 Ms Cooper submitted, therefore, that according to Dr Boys, there is no structural or physical basis disclosed which precludes heavy lifting, even if the plaintiff has complaints of pain and Ms Cooper observed that Dr Boys wrote:
"I believe this gentleman is physically capable of immediate resumption of pre-injury duties within the parameters of normal occupational health and safety guidelines."[134]
[134]Exhibit D3, DCB 61.
127 Ms Cooper referred to the absence of medication for pain including over-the-counter medication. Allied to the lack of any need for medication, the plaintiff had no treatment from early 2018, and this remained the case until recommencing chiropractic treatment in the months prior to the hearing of the serious injury application, despite the plaintiff’s acknowledgment that he could have attended a bulkbilling doctor if his pain had warranted it. As well, and despite the plaintiff having been granted further physiotherapy sessions by the medical panel in April of 2018, they were not utilised.
128 Ms Cooper submitted that the plaintiff is undertaking full-time physical work, and work that he agreed he enjoys. Ms Cooper also relied on the work the plaintiff undertook at the RSL, which also was a physical job, and that was performed over a period of for some 12 months without the need to attend a medical practitioner or take medication and is thus good evidence that the plaintiff’s injury has not restricted avenues of work.
129 Ms Cooper submitted that the plaintiff’s account of sleep disturbance was unreliable when one compares the account in his affidavit that he wakes two to three times per night, and the account he gave Dr Ingram that he was occasionally disturbed but otherwise slept well, and to Dr Mittal that his sleep was stable.
130 Ms Copper submitted that the plaintiff had no lifelong ambition to work at The Good Guys as a storeman in a warehouse such that it should be treated as if it has now been denied him because of the injury. Moreover, as Ms Cooper submitted, whereas the plaintiff might be limited in terms of jobs involving heavy lifting, he has retained a significant physical capacity and his interpersonal skills have stood him in good stead and sufficiently enough to have enabled him to work in a customer service role, as he had at The Good Guys until terminated, and at the RSL, and in hospitality, and now having advanced with his current employer from part-time to full-time employment.
131 Ms Cooper submitted that, although the plaintiff used to DJ intermittently at the homes of friends or at their parties, and he no longer does so because he says he cannot lift the equipment, with a bit of organisation and some assistance he could continue with the DJing if he wanted to and thereby derive the pleasure he once did from the pursuit. Ms Cooper also pointed to an absence of any other leisure or recreational or sporting activities that have been affected by the work injury.
132 Ms Cooper submitted that the defendant accepts that the plaintiff suffers some mild lower back pain and perhaps some morning stiffness, but that his account of his pain as being constant and on occasions on a scale 6 out of 10 but that he tolerates because he is a stoic, is less plausible than a conclusion that the pain is of a level of annoyance and mild discomfort or, in the words of Dr Ingram, “annoying back pain”.[135] Ms Cooper submitted that this characterisation of pain and discomfort is more consistent with the plaintiff leading a largely normal life without the need to attend a doctor or take any pain medication.
[135]Exhibit P11, PCB 69.
133 Ms Coper submitted that although the plaintiff is young, there is no evidence of any further progression or deterioration of his back.
134 Ms Cooper referred to the opinion on examination of the plaintiff by Dr Gale from March 2018. Dr Gale formed the view that there were marked functional overlay indications and Waddell’s signs and although counsel acknowledged that he is the only examiner to have done so, as Ms Cooper observed, he is the only doctor who conducted Waddell’s type tests.
135 Ms Cooper said that in terms of diagnosis Dr Gale agreed with Dr Boys that:
"The worker may have suffered a musculoligamentous strain in the lower back but it is unlikely there is any specific significant spinal injury. Current clinical evaluation does not demonstrate consistent and constant physical abnormality and there are no features to support a diagnosis of persistent physical radiculopathy. At stages during this consultation it appeared the worker had an unrestricted range of back motion.”[136]
[136]Exhibit D4, DCB 64.
136 Dr Gale added:
"Although the worker describes ongoing back symptoms, clinical examination suggested there was a significant non-organic component to his current presentation."[137]
[137]Exhibit D4, DCB 64.
137 In terms of prognosis, it was Dr Gale's view that:
“There was no medical basis to believe that the worker would suffer injury or harm by engaging in appropriate occupational and daily living activities.”[138] In fact, he considered that “a maximum level of physical activity was likely to be of benefit.”[139]
[138]Exhibit D4, DCB 64.
[139]Exhibit D4, DCB 64.
138 Ms Cooper referred to the examination of the plaintiff by Dr Carey in July 2019.[140] He noted that:
"There was no obvious paravertebral muscle spasm. There was a little right lumbosacral area tenderness but no non-organic signs. Flexion was such that he could touch halfway down his shins and the lordosis comfortably reversed."[141]
[140]Exhibit D5.
[141]Exhibit D5, DCB 73.
139 Dr Carey found that, “Extension however was markedly restricted because of subject back pain, particularly to the right. Lateral flexions and rotations were moderately and symmetrically reduced because of subject pain."[142] He noted, "No obvious muscle wasting. Strength was normal/symmetrical in all lower limb muscle groups. Pin prick sensation was normal/symmetrical over both lower limbs."[143] Therefore, as Ms Cooper submitted, there was nothing significant of note on examination, save for some pain on extension, which is consistent with what Dr Boys found three years prior.
[142]Exhibit D5, DCB 73.
[143]Exhibit D5, DCB 73.
140 In Dr Carey’s opinion, the plaintiff suffers from some ongoing discomfort but less disability, and he considered that a soft tissue injury is probably an appropriate diagnosis. He was unable to provide any specific physical diagnosis beyond that, and he noted that the imaging findings were underwhelming and essentially normal.
141 Ms Cooper addressed the plaintiff’s medical reports. As to Dr Mittal, Ms Cooper noted she is a pain physician and anaesthetist and not expert an expert in the diagnosis of essentially orthopaedic or neurosurgical issues but, in any event, she was unable to point to any structural defect but that her impression was "myofascial pain and underlying facet joint pain".[144]
[144]Exhibit P8, PCB 49.
142 Dr Rasch, chiropractor saw the plaintiff on a number of occasions in the middle of this year and expressed the opinion that, "The plaintiff would be best to work in a part-time capacity of four hours a day into the foreseeable future”.[145] Ms Cooper submitted that the opinion should be assessed as unhelpful because, not only is Dr Rasch not a qualified medical doctor, but his opinion is at odds with all of the other medical practitioners, including the plaintiff's own medico-legal expert, Mr Awad, who, as Ms Cooper submitted, has not recommend a need for a reduction in hours or that the plaintiff is incapable of continuing with the full-time work in which he is currently employed.
[145]Exhibit P14, PCB 78.
143 Ms Cooper related that Dr Awad, in his report of 4 January 2019,[146] noted that the plaintiff:
"… walks with no gait abnormalities. [He] has good flexion and is almost able to touch his toes, but has very poor extension to only 10 or so. Extension is much more painful than flexion. He has no neurology in his lower limbs and he is able to walk on tiptoes and heels. He subjectively had no sensory disturbances today. He was tender to palpation parasagittally over his facet joints at approximately L3/L4 and L4/L5 levels.”[147]
[146]Exhibit P10, PCB 59-62.
[147]Exhibit P10, PCB 60-61.
144 Ms Cooper submitted that having diagnosed an aggravation of spondylosis and an acceleration of facet joint arthropathy Dr Awad nonetheless accepted that, "The plaintiff is clearly fit for alternative duties"[148] and "My opinion is he is likely to suffer the consequences of this pain and mild disability into the foreseeable future."[149]
[148]Exhibit P10, PCB 61.
[149]Exhibit P10, PCB 61.
145 Ms Cooper submitted that Dr Awad’s further report of 17 July 2020[150] remained essentially unchanged. Although he did not believe the plaintiff would have the capacity for work in the open market, Ms Cooper submitted that the value of that opinion had been overtaken by the fact that the plaintiff in fact secured full time employment in a real job that he had held for over a year.
[150]Exhibit P10, PCB 63-67.
146 Ms Cooper also submitted that I should conclude that Dr Awad had underestimated the plaintiff's capacity. His reporting that the plaintiff “…takes regular breaks every 20 to 30 minutes",[151] was not corroborated in cross-examination of the plaintiff, who said that he takes the occasional break when he needs to, but that the idea that he has to have a break from what he is doing every 20 to 30 minutes and interrupt his work as a result is not the case.
[151]Exhibit P10, PCB 65.
147 Ms Cooper also referred to the reporting from Ms Myers who saw the plaintiff from mid-2016 through to mid-2017, and who noted that:
“ Based on Jack's current presentation, he is most likely fit for pre-injury duties at work. He most likely doesn't require alternative duties but he's been educated on the importance of correct lifting techniques, postures, ergonomic set-up, et cetera, in order to prevent recurrent episodes.”[152]
[152]T98.
148 Ms Cooper pointed out the most recent general practitioner's report is dated 21 July 2017.[153] Dr. Stathakopoulos reported that:
“ Hopefully encouraging him to return to normal life with resolution of his symptoms. I am somewhat perturbed at him being offered invasive treatments as I feel they may potentially reinforce the degree of his injury.” [154]
[153]Exhibit P6, PCB 35-36.
[154]Exhibit P6, PCB 35.
149 Ms Cooper submitted that, for all these reasons, the plaintiff had not discharged the threshold requirement for a serious injury that is very considerable.
Legal Analysis
Pain & Suffering
150 In a case such as this, where the plaintiff has remained in work and, over the course of more than the period of the last year, has progressed with his current employer from part time to full time employment, the measure of the disabling effects of pain may be identified through what limitations there are on the plaintiff’s employment.[155]
[155]Hawkins v DHL Express (Aust) Pty Ltd [2013] VSCA 26 at [63].
151 I am not persuaded that the plaintiff is performing his full-time work pursuant to medically imposed restrictions. There is no evidence of any current restrictions by a treating doctor and that is explicable at least because the plaintiff is not under the care of a treating doctor. I am satisfied that he is not under the care of a treating doctor because he does not have the need to be. I do not accept that the absence of medical attention for pain is because he could not afford a doctor or that he is a stoic who is unwilling to take analgesic mediation for pain despite the extent and frequency of the pain complained of.
152 I have taken into account that despite the absence of any restrictions being imposed or recommended to the plaintiff by a treating medical practitioner, nonetheless, Dr Awad, who in his further report was aware that the plaintiff was working full-time, expressed the following opinion:
“I do believe he has the capacity for alternative suitable employment. He will however now require regular breaks and alternate between sitting, standing and walking on a regular basis. This would likely occur every 20 to 30 minutes. Any employment which does not allow this will be a limitation for him. These requirements are likely to last into the foreseeable future.”[156]
“Although he is currently working full-time it should be noted that he is only managing to do this as he is a manager and explains that he is able to take regular break every 20 to 30 minutes and alternate between waking, sitting and standing. He explains and that if he was unable to have these regular breaks he would not be able to perform his employment consistently and reliably. I do not think that he would have realistic capacity in the open market for much in terms of alternative employment if he is certainly not allowed to do this.”[157]
“As a consequence of his injury he is likely also to be precluded or restricted with regard to social, domestic and recreational activities with anything that requires any pushing, pulling, bending, twisting, repetitive lumbar spine movements or any prolonged sitting or standing. Clearly this is going to affect his personal life into the foreseeable future.”[158]
[156]Exhibit P10, PCB 67.
[157]Exhibit P10, PCB 65.
[158]Exhibit P10, PCB 67.
153 The problems I have with Dr Awad’s reports on examination are twofold. First, the plaintiff’s employment is in fact carried out beyond his recommended limitations and accommodations and the plaintiff has proved more than able to accommodate his work and, second, the restrictions are plainly based on an account the plaintiff gave Dr Awad about how he goes about his work rather than the restrictions being imposed because of any clinical findings by Dr Awad. I am conscious that Dr Awad wrote how the plaintiff told him that in going about his employment he:
“requires a lot of breaks during his work. He is able to alternate between sitting, standing and resting on a very regular basis. He made it a point to say that if it was not for this he would be unable to perform his job”.[159]
[159]Exhibit P10, PCB 64.
154 The plaintiff of course also told Dr Awad that he was only able to obtain this level of flexibility in his work because he is a “manager”[160].
[160]Exhibit P10, PCB 65.
155 I have approached the plaintiff’s evidence and his account of it mindful that in Haden Engineering mentioned earlier, and applied in Sutton v Laminex Group Pty Ltd[161] (‘Sutton’) in determining the pain and suffering consequences of an injury, it is necessary to consider not only “what the plaintiff says about the pain (both in court and to doctors)”,[162] but also “what the plaintiff does about the pain (for example, medication, rest, seeking medical treatment)”,[163] as well as “what the doctors say about the extent and intensity of the plaintiff’s pain”[164] and “what the objective evidence shows about the disabling effects of the pain.[165]”
[161][2011] VSCA 52.
[162]Sutton [2011] VSCA 52 at [46] citing Haden [2010] VSCA 69 at [9]-[11].
[163]Sutton [2011] VSCA 52 at [46].
[164]Sutton [2011] VSCA 52 at [46].
[165]Sutton [2011] VSCA 52 at [46].
156 I am required to consider the evidence of the plaintiff’s pain interfering with and limiting his physical functioning and his enjoyment of life, including in his employment capacity. The evidence is decidedly mixed and quite limited.
157 The plaintiff’s claimed level of sleep disturbance has not resulted in the need for medication. There is no up-to-date evidence that the plaintiff’s mobility is affected despite Dr Awad recommending that the plaintiff be allowed to alternate between walking, sitting and standing. The plaintiff’s cognitive functioning is undisturbed by his pain. His capacity for self-care is undiminished. His household chores, other than gardening, is unrestricted, although it was not claimed he had ever done gardening work at home for his mother or father. His driving tolerance is in the order of 20 minutes. The plaintiff’s evidence is that he has few, if any, recreational or sporting activities, although he had previously played some tennis. His social activities appear to have been consistent with a young man who enjoyed clubbing and DJing, neither which he can do now or attend to with the ease or the frequency as he was able to do before his injury. I have assessed his expressed lack of interest in relationships as stemming more from a previous break-up due to his bad reaction to psychiatric medication but which he has now ceased as opposed to ongoing and persistent back pain.
158 The plaintiff is a young man. I accept that diagnosis of the condition of his back is uncertain. On one view it is unremarkable but suggests at least an aggravation of some degenerative change caused by a compensable back injury. I also accept that the plaintiff faces, in the foreseeable future, a continuation of some painful symptoms and some consequential inhibitions upon his enjoyment of life. What other pursuits by way of enjoyment of life might have come his way in due course but for the injury if he had put away clubbing and DJing is impossible to assess.
159 When considering the pain and suffering consequences for the plaintiff by comparison with other cases I consider that it is relevant and permissible to look at the likely period for which the consequences will be experienced. All things being equal, impairment consequences that a man or woman will have to endure for the rest of their life might well be judged more serious than the same consequences which a man or woman of advanced years may have to endure. I have had regard to, and taken into account, that the plaintiff in all likelihood will suffer some pain of mild discomfort but with some risk of episodes of greater intensity depending on his activities for decades.
160 As the Court of Appeal stated in Stijepic v One Force Group Australia Pty Ltd,[166] the exercise in assessing the statutory emphasis in cases for such leave as is here sought:
“is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this include cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other.”[167]
[166][2009] VSCA 181 (‘Stijepic’).
[167]Stijepic [2009] VSCA 181 at [42].
161 Mr Richards submitted that the plaintiff is entitled to be considered a stoic in accordance with the observations of Mr Carey and he relied on the observations of the Court of Appeal in Sutton. Quite properly, a plaintiff should not be penalised because of efforts undertaken in the face of pain and restrictions to work, or because he or she are doing their best to avoid medications. In this case the plaintiff has the shadow of the effects that anti-depressant medications have had on him. I have taken this into account. However, there are also some occasions when a proved ability to work and a lack of treatment (event making allowance of the recent return to chiropractic treatment) or a lack of prescribed medicines is due to a capacity to work, and because the impositions caused by a work related impairment are not more than significant or marked, and at least very considerable. I am satisfied that this is the appropriate judgment and assessment in this case.
162 Accordingly, when I come to apply the guidance of the applicable authorities and after having assessed the plaintiff for myself and weighed the medical and allied evidence and had regard to the plaintiff’s circumstances, I am not satisfied that they meet the test for serious injury.
Loss of earnings claim
163 The loss of earnings claim was skimpy. I will address the legal framework for the plaintiff’s claim, as well as the available evidence and the competing submissions.
The legal framework
164 In order to establish an entitlement to commence proceedings for pecuniary loss damages, the plaintiff must satisfy the provisions of s325(38)(e) of the Act. As the plaintiff was under 26 years of age at the date of injury, the usual common law position applies in determining whether or not the plaintiff has established a loss of earning capacity of 40 per cent or more in accordance with s325(38)(e). Thus, a mathematical exercise and a three year prior and three year post-comparison of earnings is not required.
165 Mr Richards submitted that the Court should find that the wide range of employment options are now permanently beyond the capacity of the plaintiff such that he has suffered a 40 per cent loss of earning capacity in accordance with the usual common law position. He submitted that the plaintiff had experienced a severe diminution of his capacity to undertake work in the open labour market due to the nature of the condition of his lumbar spine[168]. Mr Richards submitted that the plaintiff has been left with a reduced capacity and essentially what might properly be treated as a light work back, in line with the medical opinions of Mr Awad, Dr Slesenger, Dr Mittal and Dr Rasch.
[168]The plaintiff relied on Capper v Munday Sales Pty Ltd [2013] VCC 1015.
166 Although I have already addressed the plaintiff’s medical opinions in terms of their relevance to the pain and suffering limb of the serious injury application, it is appropriate to comment on them again to the extent they are relevant to the loss of earnings capacity limb of the application.
167 Mr Awad believes that the plaintiff is precluded and restricted from any employment activities that involve pushing, bending, twisting and repetitive spine movements including sitting and twisting.
168 Dr Mittal believes that the plaintiff has significant restrictions in a workplace and would only be able to work only on a part-time basis.
169 The plaintiff gave a history to Dr Slesenger of working up to 17 hours per week at the Rosebud RSL and of experiencing bad back pain in the course of that employment. Dr Slesenger thought the plaintiff was working outside his restrictions and that he was unable to attain that level of capacity.
170 Dr Rasch believes that the plaintiff would be best able to work in a capacity of four hours a day into the future.
171 Mr Richards argued that the defendant furnished no medical evidence to rebut the recommended restrictions and limitations identified in the previously mentioned reports or adduced evidence that the plaintiff is able to work on a full-time basis without restrictions. Mr Richards contended that the plaintiff had not been challenged under cross-examination as to the capacity to work beyond his restrictions. I do not regard that as a particularly helpful submission because in some material respects the plaintiff through his employment and lack of medical treatment is his own best evidence of his limitations, and as such, diminished the utility and necessity for cross-examination.
172 Mr Richards submitted that but for being injured the plaintiff had the capacity to work in a variety of roles. In the abstract this might be true, but what any such roles might have been, were never identified and were not adverted to in the affidavit material. However, as I gathered by Mr Richards submission, it was not a necessary requirement to do so.
173 I have given little regard to Mr Richards’s argument that the plaintiff is precluded from obtaining employment as a DJ due to his inability to carry equipment. There was no evidence at all that he had any ambition to become a “professional” DJ. What DJing he appears to have undertaken before his injury was limited to an interest and playing music for friends and, as I have said before, there is no evidence he obtained any remuneration from it. Furthermore, the fact that he managed to complete music production courses is not evidence of an intention to have pursued a career as a DJ. It was never said or intimated in the plaintiff’s evidence that he wanted to do so in any event.
174 It was next submitted that the plaintiff is employed in a supported working environment that accommodates his evident pain, as reflected by Ms Hewitt’s evidence, that:
“most mornings he can’t sit, he will stand and he’s trying to bend over and relieve the pain and sometimes – that’s usually when we ascertain if it is too bad for him to work”[169]
[169]T73.
175 Mr Richards referred to the plaintiff’s evidence that he believed that he would not be able to continue to work full-time in 12 months’ time and that he did not know what else he would be able to do to get income if he did not have his present employment. Why the plaintiff harboured doubt about his further employment with his current employer was not explained, other than when he said:
“I don't know, it's just - like, I'm happy with my job now but I don't know what else I can do like to get income if I didn't have this job and in 12 months, I don't know, it will probably be even worse. Hopefully not, I really hope it won't but if it hasn't changed in five years, over five years, I don't have any hope for that. Like, I don't reckon it's going to change at all and it makes me just like, like hopeless, you know. I can almost say I have a disability but like, I read something in my affidavit or whatever these are and it says like, disability. I don't want to be classified under that. So yeah - sorry, continue.” [170]
[170]T66-67
176 There is no reason to support the plaintiff’s belief that he will not be employed with the business in the next year or perhaps for even a longer period of time. He is a valued employee who enjoys his work in a business that Ms Hewitt described was performing very well despite the current economic decline imposed as a result of Covid 19. It seems to me, the more pertinent enquiry is what the plaintiff’s employment prospects on the open market will be beyond this employer and into the future. One may assume that over a lifetime a man of the plaintiff’s age would likely expect to be employed by a number of different employers. The limitations recommended, most particularly by Dr Awad, and which he assessed as likely to last into the foreseeable future are very wide restrictions. They are unusual for such a young man, and more so in light of Dr Awad’s description of prognosis that the plaintiff would continue to “suffer the consequences of this injury now in the form of some degree of pain and disability into the foreseeable future.”[171]
[171]Exhibit P10, PCB 65. Emphasis added.
177 While I have already rejected the submission that the plaintiff is employed in protected employment, I do accept that it is not employment the plaintiff managed to secure in the open market, but rather as a result of the serendipitous good fortune of Ms Hewitt being acquainted with the plaintiff’s mother. Despite this, having managed to get his foot in the door, he has maintained the employment because he is a good and valued employee.
178 Mr Richards referred to the decision of His Honour Judge Jordan in CEM OGE v VWA[172] (‘OGE’) in support of his submissions and, in particular, to the following comments as apposite. His Honour said:
“Taking the evidence of these treating practitioners, in my opinion they amount to a very significantly impaired earning capacity that is permanent for such a young worker… whatever the workplace is, workers cannot just refuse to lift anything below the knees or above the shoulders to take a few of the permanent restrictions. If a boss wants something done as basic as these functions, then in the real world it has to be done.”[173]
[172][2016] VCC 1664.
[173]OGE [2016] VCC 1664 at [42].
179 The plaintiff’s circumstances in OGE were markedly different to those with which I am presented. For a start, the plaintiff had undergone significant surgery and his general practitioner had at no time never certified the plaintiff as fit for anything more than 20 hours work per week. His Honour described a “very bleak picture”[174] that had been painted by the plaintiff’s general practitioner who knew him “very well”.[175] The plaintiff had a significant number of characteristics that rendered his employability negligible. This is not an appropriate comparison to apply to this plaintiff.
[174]OGE [2016] VCC 1664 at [35].
[175]OGE [2016] VCC 1664 at [31].
180 Mr Richards submitted that the plaintiff satisfies the pecuniary loss serious injury test for the purposes of the statutory formula based on Dr Awad’s report or January 2019.
181 Finally, Mr Richards submitted that the plaintiff should be regarded as a stoic in accordance with Mr Carey’s assessment, and not punished because of his work ethic.
Defendant’s submissions
182 Ms Cooper made a series of submissions. First, it was submitted that the plaintiff must establish a loss of earning capacity as at the date of hearing and into the future. Such a finding can only be made on the basis of the existence of some evidence before the Court to enable that exercise to be undertaken, such as the plaintiff's career trajectory and a projected loss of earnings but for the happening of the injury. Second, no such evidence was adduced. Third, Ms Cooper relied on the fact of the plaintiff working full-time hours with, according to Ms Hewitt, a capacity to accrue significant time in lieu of pay. Fourth, the plaintiff is earning more than he was before his injury. Fifth, there is no evidence before the Court that, but for this injury, the plaintiff would be earning more than he is currently. Sixth, there is no evidence that the plaintiff would have gone on to do something that was more financially productive than what he is doing presently.
Legal analysis
183 At the time when the plaintiff was injured, he was under 26 years of age. What this means for the plaintiff is that the assessment of his loss of earning capacity is to be undertaken by reference to general common law principles and not by reference to ss(38)(f) of the Act. However, there is still the requirement for the plaintiff to demonstrate “a loss of earning capacity which will be productive of financial loss of 40 per cent or more” – see s325(2)(e)(ii). Therefore, in determining whether a financial loss of 40 per cent or more has been established, common law principles in relation to the assessment of damages are to be adopted.
184 In Jarvis v Woolworths Limited[176] (‘Jarvis’) His Honour Judge Brooks conveniently summarised the principles that had been articulated by Heydon, JA in State of New South Wales v Moss,[177] a case involving the assessment of the loss of earning capacity of a plaintiff injured in a school laboratory accident at 14 years of age. Judge Brooks said at:
[176][2012] VCC 1329.
[177][2000] NSWCA 133 at [134].
“i. evidence of past economic loss is some, though not conclusive evidence of reduced earning capacity;
ii. it is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what a plaintiff is likely to earn after it;
iii. where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work the plaintiff can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity;
iv. the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss. It involves calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities;
v. the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum;
vi. the task of the court is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.”[178]
[178]Jarvis [2012] VCC 1329 at [23].
185 Due to the plaintiff’s age at the date of the injury and the operation of the Act, there is no statutory requirement to ascertain the plaintiff’s “without injury” earning by reference to the statutory period three years pre and post-injury. Nevertheless, leave cannot be granted unless I am satisfied that the plaintiff presently suffers, and will continue to suffer, a loss of earning capacity which will be productive of financial loss of 40 per cent or more. That is, to say, that the demonstration of a financial loss of 40 per cent or more is still required, even if the limitations contained in s325(2)(f) are not applicable.
186 In Sharma v Chandler Personnel Services Pty Ltd,[179] (‘Sharma’) His Honour Judge Bowman said this:
“What I understand Judges of this Court to be saying is that, in determining whether a financial loss of 40 per cent or more has been established, common law principles in relation to the assessment of damages are to be adopted. I am far from convinced that such an approach is erroneous, and it is one I shall follow.”[180]
[179][2018] VCC 1658.
[180]Sharma [2018] VCC 1658 at [70].
187 The authorities in fact relied on by Mr Richards each reflected the imperative expressed by Judge Bowman in Sharma. For example, in Ammerlaan v DC Roof Tiling Pty Ltd and Victorian WorkCover Authority,[181] (‘Ammerlaan’) the plaintiff was a 22 year-old apprentice electrician who had returned to work and was earning more than 60 per cent of the earnings of a roof-tiler of 20 years’ experience. The defendant submitted that the plaintiff had not established a 40 per cent loss of earning capacity but his Honour Judge Dyer, was satisfied that the plaintiff’s injury had destroyed his capacity to work in his chosen field and had impacted to a very considerable extent on his present and future earning capacity. His Honour said that a precise monetary comparison, based upon actual earnings, is not required by the statute.
[181][2015] VCC 1421
188 As I understand his Honour Judge Dyer’s reasoning, notwithstanding that the plaintiff was currently not suffering a financial loss of 40 per cent, he had suffered a loss of earning capacity which was more than 40 per cent. Applying his judgment, and making an assessment as best he could, he found that the plaintiff was then suffering a present loss of earning capacity in excess of 40 per cent of his pre-injury capacity for earning. His Honour accepted that the plaintiff would have qualified to be licensed as an A Grade electrician and, apart from evidence of the plaintiff’s earnings as an apprentice, there was evidence before his Honour of the earnings of A Grade and B Grade electricians and so, his Honour was satisfied that the plaintiff’s injury meant that he would not be able to work as either an A Grade or B Grade electrician. His Honour also concluded that the plaintiff was fit for alternative employment and, ultimately, was able to measure the income which the plaintiff was able to derive from such employment against that to be earned as an A Grade electrician. After so doing, he concluded that the plaintiff’s loss of earning capacity consequences could be fairly described as “at least very considerable”, because he was able to demonstrate a permanent loss of earning capacity of 40 per cent or more.
189 Not only was His Honour assisted in Ammerlaan by the earnings of different grade electricians, but his Honour was able to be satisfied that but for the injury the plaintiff would have qualified to be a licensed A Grade electrician.
190 In Sharma, Judge Bowman when commenting on Ammerlaan, observed that apprentices have a comparatively clear career and earnings path, and thus provide clear examples of the operation of the relevant provisions.
191 My findings relevant to the principles identified in Jarvis, are as follows:
· first, the plaintiff suffers no past economic loss;
· second, there is no evidence of any capacity to work in a chosen career as adversely affected by the plaintiff’s compensable injury. I discount the reliance on DJ’ing in this context for the reasons I have earlier expressed.
· third, the plaintiff has not suffered a severe disabling injury thereby enabling me to arrive at a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity. I am instead satisfied that the plaintiff suffers and is likely to continue to suffer a mild disability into the future with some accompanying pain.
· fourth, the fact of plaintiff working in a job that accommodates certain limitations does not mean there is an effect to the range and nature of the work the plaintiff can perform in the future that would be productive of a 40 per cent loss.
192 In my view recourse to outcomes in different cases and said to be predicated on principle, but without sufficient regard to differing factual scenarios, can lead to incorrect legal outcomes.
193 I respectfully agree with the statement by Judge Bowman in Sharma, that what is required is not a simple assessment of loss obtained by applying common law principles. Rather, common law principles are applied in determining whether or not a 40 per cent loss has been proven. Of course, evidence of a financial loss of 40 per cent would usually involve a comparison of actual and potential earnings figures. There is a burden of proof upon the plaintiff in relation to these matters generally, and, as his Honour said, the words “productive of financial loss of 40 per cent or more”[182] must have some meaning and applicability.
[182]Sharma [2018] VCC 1658 at [70].
194 There is no evidence at all of future earnings or of a career path for the plaintiff unlike each of the authorities to which I was referred to by Mr Richards in support of the loss of earning capacity claim for the grant of leave.
195 In short, I am satisfied that the plaintiff has retained a capacity to engage in various forms of work, including the type of work in which he is now engaged. I am not persuaded that there has been demonstrated a loss of earning capacity productive of a financial loss of 40 per cent or more. In other words, I am not satisfied that a loss of earning capacity of 40 per cent exists, or that any loss is permanent as required by s325(2)(e)(ii).
196 In summary, I find that the plaintiff has failed to discharge the burden of proof which he carries in relation to the operation of s325(2)(e) and generally.
197 If it need be also stated, I am unable to accept Mr Richard’s submission, and I am not satisfied for reasons already expressed by the reporting of either Mr Rasch or Dr Awad, that the plaintiff has established a pecuniary loss serious injury for the purposes of the statutory formula. I note particularly that Dr Awad stated in his report of 4 January 2019 that:
“He is currently working full time it should be noted that he is only managing to do this as he is a manager and explains that he is able to take regular breaks every 20 to 30 minutes and alternate between, walking, sitting and standing. He explains and that if he was unable to take these regular breaks, he would not be able to perform his employment consistently and reliably. I therefore do not think that he would have realistic capacity in the open market for much in terms of alternative employment if he is certainly not allowed to do this.”[183]
[183]Exhibit P10, PCB 65.
198 Contrary to the opinion of Dr Awad, I am not satisfied that the plaintiff has proved on the balance of probabilities that he does not have a realistic capacity “for much” on the open market in terms of alternative employment.
199 For the reasons stated, the plaintiff’s application is dismissed.
200 I shall hear the parties in relation to costs and any other consequential orders sought at a time convenient for counsel. If the parties can reach agreement as to such orders, they should file minutes of consent orders with my associates.
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