Walton v Victorian WorkCover Authority
[2017] VCC 1444
•12 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-03187
| STEPHEN JAMES WALTON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 October 2017 | |
DATE OF JUDGMENT: | 12 October 2017 | |
CASE MAY BE CITED AS: | Walton v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1444 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering conceded – psychiatric impairment – loss of earning capacity only
Legislation Cited: Accident Compensation Act 1985, s134AB (16)(b), (37) and (38)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230
Judgment: Leave granted to the plaintiff to bring proceedings for damages in relation to loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G A Lewis QC with Mr C Cvjeticanin | Maurice Blackburn |
| For the Defendant | Mr A J Moulds QC with Mr P R Trigar | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Janala Pty Ltd, trading as Cope Freight (“the employer”) on the 30 August 2011 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity, pain and suffering having been conceded in closing addresses.[1]
[1]Transcript (“T”) 51
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon is the lumbar spine. An application was also brought under sub paragraph (c) for a psychiatric impairment. As pain and suffering was conceded in relation to the lumbar spine, no submissions were made in relation to the sub paragraph (c) application.
5 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
6 By ss(38) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, “when judged by comparison with other cases in the range of possible impairments, or losses of a body function, or disfigurements, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable”.
7 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
8 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
10 The plaintiff relied upon three affidavits and gave viva voce evidence. An affidavit sworn by Dionne Walton, the plaintiff’s wife, was also relied on. In addition, both parties relied on medical reports, and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
11 The plaintiff is presently aged fifty, having been born in Melbourne in August 1967. He is married, with two adult children.
12 The plaintiff attended Maribyrnong High School to Year 10. After he left school, he was unemployed for a while, before working for various truck companies as a yard hand.
13 Upon obtaining a licence as a truck driver and a heavy combination licence, the plaintiff worked as a driver.
14 The plaintiff has always done physical work. He had hurt his back from time to time, but the episodes of lower back pain were usually just one-offs. Usually he felt fit and strong and able to do very hard work.
15 The plaintiff started work as a leading hand for the employer in about December 2003 working on the loading docks. After about six years, he became a truck driver to give himself the opportunity to spend time with his son, who had a learning disability.
16 The plaintiff drove a semitrailer, a heavy rigid and a medium rigid. Sometimes he was also required to unload the truck. His work as a truck driver did not involve as much lifting as when he was working on the loading docks; however, it was just as heavy.
17 Before suffering injury, the plaintiff worked full time and was paid according to the relevant Enterprise Bargaining Agreement. He also worked as much overtime as he was offered. In the year immediately before the said date, work was a bit quiet. There was noticeably less overtime. He believed his taxation returns showed his annual earnings dropped a bit in that year. As soon as work picked up he would have worked more overtime.
18 On the said date, the plaintiff injured his lower back when lifting a box of air conditioning units from a pallet (“the incident”).
19 After having attended a local clinic, the plaintiff was taken to the Western General Emergency and given Panadol and advised to have an x-ray. He then attended his family doctor, Dr Ho, who put him off work and sent him for that investigation.
20 The plaintiff’s WorkCover claim lodged on 31 August 2011 was accepted and he was paid weekly payments until 10 October 2015. He is now in receipt of Newstart benefits.
21 The plaintiff had a few weeks off work after the incident and then returned on light duties. Prior to that time, he had an x-ray and a lumbar CT scan in September 2011.
22 On his return to work, the plaintiff was not supposed to be doing any lifting or handling of stock. He could not remember an incident noted by Dr Ho in which he aggravated lower back pain pushing a pallet jack at work in October 2011.
23 The plaintiff’s lower back pain persisted and he remained on modified duties.
24 The plaintiff was referred to a physiotherapist. By early 2012, the plaintiff felt his lower back pain was not as bad. He started to notice numbness and tingling in his left thigh and was sent for a lumbar MRI scan, which took place in February 2012. He remained on modified duties.
25 The plaintiff was referred to specialist neurosurgeon, Associate Professor Brazenor, who told him to stop physiotherapy and to buy a back brace. He advised the plaintiff never to go back to heavy work. He did not recommend surgery. The plaintiff otherwise followed his advice.
26 The plaintiff remained on modified duties and tried to do some truck driving, but he could not remember exactly when this occurred. He did little trips to Derrimut and Sunshine, of only about ten minutes. He then tried the Dandenong run, but that made his back much worse. Sitting for so long was just not something he was able to tolerate. He was prescribed Endone by Dr Ho. He was taken off the Dandenong run and put in the office.
27 In the early days, Dr Ho did not really give the plaintiff much of an answer about work and he “really was just going on what he knew,” namely that the plaintiff was basically a truck driver.[4]
[4]T15
28 Most of the time, the plaintiff’s pain was like an ache. The rest of the time, it was more severe and he needed Endone. He continued to get tingling in his left thigh.
29 On about 19 August 2013, when working in the office, the plaintiff missed the chair when he sat down and fell on his buttocks, flaring up his lower back pain. He attended Sunshine Hospital. This flare up lasted about five or six weeks and his back then settled down to how it had been before this incident.
30 The plaintiff then started seeing the employer’s general practitioner, Dr Chee. She referred him to Mr Paul Smith, neurosurgeon, who sent him for another lumbar MRI scan. The plaintiff saw Mr Smith about three times. He did not recommend surgery.
31 Even when the plaintiff was doing light duties in the radio room or in the office, he was not much use to anyone when he was taking Endone. The radio room was like a hospital ward because there were so many workers on WorkCover and they were not really doing anything essential. The employer was just keeping them busy. It was the same when the plaintiff was doing office work. If he had taken Endone he was tired and slow, and his concentration was poor.
32 The plaintiff was working full time. He was doing ‘patch’ jobs, leaving other worker’s paperwork out for them in the morning for them to go off and get their freight. He was put in the radio room and in the office as a filing clerk. He tried to go back to driving.
33 At the time his employment was terminated in November 2013, the plaintiff was “just there”, he did not remember what he was doing. Most days he was reading the internet news because his work had basically been taken from him. Sometimes he missed days from work due to back pain.[5]
[5]T38
34 After ceasing work, the plaintiff continued to see Dr Chee. He took Endone as needed, and also Panadol. He did not have physiotherapy.
35 In 2014, the plaintiff tried to work for Britz in a job that was supposed to be inspecting vehicles. However, in addition to inspecting the vehicle interiors, he was also asked to check tyre pressures and inspect underneath the vehicles. He could not do these tasks because of his back injury and lasted only two days in the job. He has not worked since.
Courses
36 The plaintiff did a retail course through Xchanging, conducted by the Australian Retail Association. He had never done any kind of sales work in his life, having only worked on trucks and in truck yards.
37 The plaintiff attended the course four hours a day for seven weeks, during which he was taught customer relation skills. There was also two weeks’ work experience at Officeworks which was like a job placement.[6]
[6]T4
38 At Officeworks, the plaintiff was paid $5 a day, attending for four hours a day, nine days over a fortnight. It was mostly standing work, but the plaintiff was allowed to sit down for as long as he liked whenever he needed to as Officeworks was very understanding.
39 The plaintiff was working in the pens and pencil section and had to keep the shelves stocked. If he needed to get a box which was up too high or was too heavy, then he asked for help. On several occasions, he had to sit out the back for ten to fifteen minutes when his back started to feel uncomfortable.[7]
[7]T39
40 The plaintiff has undertaken a number of computer and training courses to make himself more employable. These courses were quite difficult, but the instructors allowed him to sit and stand whenever needed, and he could bring his own cushion to class.
41 Whilst studying, as the day progressed, the plaintiff found that he needed to get up more often. The courses were usually for no more than half a day at a time, and whilst sometimes he just could not cope, he was able to complete the courses successfully within the designated time frame.
42 The plaintiff undertook a basic computer course in 2014 at Preston House. The following year, he did an intermediate course at Ascot Vale Community Centre which was also council funded.[8] In that course, he never got around to spreadsheets. The hardest thing in the intermediate course was Notepad.[9]
[8]T4
[9]T5
43 The plaintiff also completed an advanced computer course in 2016, which was a continuation of the intermediate course, with more in-depth information on some of the web programs.[10]
[10]T6
44 The plaintiff is now not very apt at using the internet and still has to get his wife to do a lot of his emails. He plays computer games, but they are mostly card games and simple puzzles.[11]
[11]T5
45 The plaintiff agreed, having been taught to use computers, a job in logistics, where he could be trained to enter data, would be of interest to him. However, some things are out of his depth and he knows what he would be scared of doing. He has tried and made mistakes, and quite often has to rely on a lot of help from other people when using a computer.[12]
[12]T7
46 At the end of 2016, the plaintiff obtained a Certificate IV in Training and Assessment at Kangan TAFE.[13]
[13]T6
47 When the plaintiff took Endone during these courses, he had to miss classes but could still complete the courses within the set timeframe. He probably missed four days in total of the Certificate IV course but attended catch up days on Saturdays each month.[14]
[14]T22
March 2016 – the first affidavit
48 The plaintiff then had constant lower back pain. It was a strong, constant ache. From time to time, it flared up and became a very strong pain. It was brought on by stepping the wrong way or getting up the wrong way from a chair. Flare ups occurred about once a week on average, lasting about an hour or so.
49 The plaintiff was restricted in how long he could sit, stand or walk comfortably.
50 Before he hurt his back, the plaintiff already had a problem sleeping, and the pain in his lower back made that even worse. He was sometimes woken by lower back pain.
51 Because of his injury, the plaintiff no longer went camping with his family, as it was just too uncomfortable and he would also not enjoy the long trip. He had a motorbike, but hardly got to ride it.
52 The plaintiff could no longer work in the transport industry. That was the only kind of work he had ever done. He was disappointed he could not look after his family like he used to.
53 The plaintiff was seeing Dr Chee about monthly. He was prescribed Endone, Valium, Panadeine Forte and Endep.
July 2017 – the second affidavit
54 The plaintiff continued to experience ongoing lower back pain. He described it as being like a migraine that just never went away. From time to time, the pain flared up and became very strong. The same precipitating factors existed.
55 The plaintiff tried to be careful not to twist or reach too far because that could also bring on a flare up, as could sitting for too long, such as on a tram ride to the city.
56 Sometimes a flare up could come on for no reason at all. Endone tablets took about an hour to take effect. The plaintiff also experienced an occasional burning pain in his left leg, which started on the outside of the left thigh and ran down to about the knee. It lasted for several minutes and only came on about once a week and did not seem to be brought on by anything in particular.
57 Overall, the constant lower back pain seemed to have increased in intensity over the last several weeks or months. The plaintiff had undergone a few epidural injections, the first in about 2013, after he saw Mr Smith, and the next in August 2015, when Dr Chee started organising them.
58 The plaintiff had a further epidural in April 2016 and another in February this year. Each injection had been quite helpful. They seemed to take a couple of weeks or so to really start working and seemed to reduce the general level of pain. He still had pain but it was not as bad. He still experienced flare ups but not as often.
59 The plaintiff was taking Panadeine Forte or Mersyndol Forte every day for the constant pain, and Endone for flare ups. On average, he was taking Endone about twice a week, but sometimes only once. At other times, it could be three times or more. He may have had weeks where he did not take Endone but they were rare. It left him feeling very drowsy and he found it harder to concentrate. He did not think it was safe to drive when he had taken it. The drowsiness lasted most of the day. Panadeine Forte and Mersyndol Forte were not as bad as Endone for drowsiness and he was able to drive when he took them.
60 As a result of his back pain, the plaintiff was restricted in how long he could sit, stand or walk comfortably. Generally, he could sit for thirty to forty-five minutes before it became too uncomfortable. Sometimes, he could sit for an hour, but at other times, it was barely thirty minutes if he was having a flare up, and he did not feel comfortable doing anything except lying down after taking Endone.
61 The plaintiff could walk for about twenty-five to thirty minutes, which he tried to do every day, as he had been trying to lose weight since he saw Associate Professor Brazenor. The plaintiff was attending the gym two to three times a week and did hydrotherapy but he just could not seem to lose weight.
62 The plaintiff did very little around the house, having previously been quite handy. Now, he needed to get someone to mow the lawn and his wife did all the indoor housework. He tried to do minor repairs but it was just tinkering with woodwork and had a table saw and router at home.[15]
[15]T12
63 The plaintiff had kept his motorbike, which was registered. He no longer insured it. It just sat in the garage. Every now and then, he took it out and ran the engine. He had even tried to ride it, but did so locally and the experience was not pleasurable. He did not know why he kept it. He hoped that he could ride it again someday, but he knew his back was not getting any better. He enjoyed working on cars before the incident but had not done so since, save for looking after his own car.[16]
[16]T12
64 The plaintiff did gym work until July this year when funding ceased. He was attending the gym up to three times a week, depending how he felt, doing weights to try and strengthen his back.[17] If funding was available, he would still be going on this basis.[18]
[17]T11
[18]T12
65 The plaintiff was still sometimes woken by lower back pain. He also had trouble falling asleep because of pain. He could lie for several hours without being able to fall asleep.
66 The plaintiff agreed he also has trouble sleeping as a result of sleep apnoea. He uses a mask every night. When he sleeps, he sleeps well, and when he does not, he is “all over the place”.[19]
[19]T19
67 The plaintiff could not remember if he had problems sleeping in September last year. He had some trouble sleeping some nights. He could not remember the questionnaire that Dr Ibrahim completed that month. If it was noted in that document he was then getting a full night’s sleep that would have been what the plaintiff told the doctor.[20]
[20]T20
68 Despite using the mask to sleep, the plaintiff does not sleep perfectly as his sleep is interrupted by lower back pain.[21]
[21]T38
69 The plaintiff felt quite depressed because of his constant pain and inability to work. Dr Chee prescribed Endep, which the plaintiff found helpful. The plaintiff also attended St George’s Medical Centre, where he was referred to a psychiatrist, Dr Ibrahim.
70 The plaintiff was feeling down and lonely at the time he was sent by his general practitioner to Dr Ibrahim in September 2016. Lots of things were making him feel that way: his back; friends; family; just having to rely on everyone else. It made him feel useless. He tried to do things, but he just could not.[22]
[22]T38
71 Dr Ibrahim tried to change the plaintiff’s prescription to Lovan, but that did not work as well, so he was back on Endep.
72 The plaintiff was also referred to a psychologist, Ms Christofidis. Speaking with her also helped him cope better. He was then seeing Dr Ibrahim about every few months and saw the psychologist every four to six weeks.
Work
73 As part of Newstart, the plaintiff was required to look for work. He still wanted to work, but often applied for jobs he knew he really could not do. He had applied for jobs in training, sales, stores, office work and even driving. He had applied for full time and part-time work. He wanted to just try working again and see how he went. He hoped he could convince an employer to do work within his restrictions and be flexible with hours.
74 There were some days when the plaintiff felt he could do light work for eight hours, usually after an epidural injection had taken its full effect. However, he would still have to take Panadeine Forte or Mersyndol Forte every day.
75 If the plaintiff had a flare up while at work, then he would have to go home and take Endone. If he had a flare up at home and took Endone, then he really could not go to work. Within a few months of having an epidural, his general pain level tended to increase, so he would not be able to work for eight hours on any day, and would not feel able to work every day.
76 The plaintiff understood that after seeing Recovre, it prepared a report which said he was capable of working as a receiving and despatch clerk, logistics clerk, stock clerk, rental sales person and vocational education teacher.
77 The jobs of receiving and despatch clerk, logistics clerk and stock clerk seemed to be the ones which would be most suitable for him.[23] He did not anticipate any problems being trained for those roles but confirmed he would have problems performing them on a regular and reliable basis due to his pain and medication. On some occasions, pain debilitates him to the extent he could not turn up to a light job in sedentary work. The main problems would be concentrating due to his medication and also sitting for too long.[24]
[23]T25
[24]T26
78 The plaintiff discussed some jobs with Dr Chee but could not remember which ones. He had applied for full-time jobs of a light nature. He would have tried to work if he was offered a job, as he had done in the past with Britz in 2014.[25]
[25]T26
79 The plaintiff applied for Budget and Hertz for a part-time job, six hours a day for two days to start, and see how he went. He thought the job would be desk clerk and retrieval of cars, and otherwise clerical work.[26]
[26]T28
80 The plaintiff has applied for dozens of jobs, even ones he did not think he could do.[27] No doctor has told him he could not work. The Endone packet warned he should not work when taking medication but the plaintiff could not remember if a doctor had told him that. Dr Chee had told him to try and not take Endone as much because it is addictive.[28]
[27]T26
[28]T27
81 In cross-examination, it was suggested to the plaintiff that in clerical work, rental sales, or teaching, he would be able to work Monday, Tuesday, take Wednesday off, and work Thursday and Friday (“the suggested hours”). If he was capable, he would try to start these hours.[29] His ability to cope would depend on whether he was in pain, how long he was on his feet and for how long he was sitting down. The constant sitting, however, would make these jobs unsuitable. Whilst getting up and down would accommodate that problem, sometimes sitting and standing intensified his pain. He agreed it was really just the level of pain that would be the difficulty for him working in these jobs for the suggested hours.[30]
[29]T20
[30]T29
82 The plaintiff confirmed he really could not work as a clerk or in sales because he would not be reliable turning up at all on any one day. His ability to work the suggested hours would depend on how he was feeling that day. Sometimes, waking up in the morning, he has had to take an Endone because he slept the wrong way. On those days, it was awkward to start the day off like that.[31]
[31]T32
83 If at work, the plaintiff would probably have to get up and walk around for five to ten minutes every forty-five minutes to an hour on a good day. As the day progressed, he would need to get up more regularly. If he had a flare up, then he would not be able to work, as the pain would be too great and the Endone would make him too drowsy.
84 When the benefits of an epidural had worn off, then the plaintiff would have to take more breaks and he would suffer more frequent flare ups.
85 The plaintiff would have the same problems working as a rental sales person as working as a clerk but his ability to cope would also depend on the nature of the rental business it was. If it involved machinery, the plaintiff would not be able to move, lift or carry machinery. If renting cars, as long as he did not have to inspect the cars too closely, reach into them to demonstrate a feature to a customer, or fit and remove child safety seats, then he would just have the same problems as with the clerk jobs.
86 The job of vocational education teacher was something the plaintiff was actually hoping to get into, having completed the Certificate IV in late 2016. He thought he would be able to use his experience in truck driving with this qualification. However, he had become aware that trainers had to do a lot of practical instruction, which meant getting in and out of trucks and driving them. The way his back currently felt, the plaintiff knew he could not do that kind of work. Just getting in the truck put a strain on his back. When he started the course he did not realise it was going to require this activity.[32]
[32]T37
87 The plaintiff put in an application of interest for a teaching job at Kangan TAFE in Broadmeadows in April 2017 to see if he could get some experience.[33] To start off, he was hoping it would involve training on warehouse paperwork and teaching driving.[34]
[33]T8
[34]T10
88 In any event, the plaintiff could not do the vocational teaching job as he no longer has the appropriate qualifications, which he was advised by TAFE were upgraded earlier this year.[35] He did not know what further course requirements were necessary to obtain this upgrade.[36]
[35]T32
[36]T33
89 If not required by Centrelink to look for jobs, possibly the plaintiff would not have been looking for as jobs, but he continues to do so. He has applied for hundreds of jobs. He has applied for jobs in retail, both full and part time, and also logistics and cleaning jobs, on that basis.[37] He has also applied for general maintenance type jobs, full and part time, and he has applied for some jobs he is not even qualified for, such as office work.[38]
[37]T8
[38]T9
90 The plaintiff has applied for jobs in all manner of retail, but he thought work at Bunnings would be too heavy, as a friend told him work there involves a lot of heavy lifting.[39]
[39]T11
91 The plaintiff applies through Job Links and attaches a résumé setting out his qualifications and the courses he has undertaken.[40]
[40]T9
92 The plaintiff applies for jobs he knows he really has no chance of getting. Even if he got a job, he did not think he would last very long. He still hopes that somehow he will be able to find a job that will let him work within his restrictions and take time off when he needs it. He has never seen a job like that, but his luck might change.
September 2017 – the third affidavit
93 The plaintiff’s condition remains largely the same. Overall, the pain has become worse and the flare ups more frequent.
94 The plaintiff presently takes the anti-depressants, Lovan and Endep, prescribed by Dr Ibrahim, whom he sees every three months.[41]
[41]T13
95 The plaintiff sees Dr Chee monthly. He has discussed with her the effects of Endone. He tells her he takes it when it is needed.[42] She does not provide certificates. They just talk about what he can and cannot do, and she gives him “the once over the pain”.[43]
[42]T21
[43]T16
96 The plaintiff continues to take Panadeine Forte or Mersyndol Forte every day. Lately he has been taking Endone more often, because the pain and flare ups have continued to get worse. In about the last couple of months or so, he has been taking Endone about four or five times a week. He last took Endone two days before the hearing.[44]
[44]T23
97 The Mersyndol Forte is stronger than the Panadeine Forte and it seems to relax the pain a little bit more, with the Panadeine just numbing it down. Endone is prescribed for the strongest pain.[45]
[45]T14
98 The plaintiff normally takes Endone once maybe twice a week after an epidural, which usually takes a couple of weeks to kick in. When the pain kicks in, and when the pain starts to increase after the epidural, he can take Endone up to four or five times a week.[46]
[46]T16
99 The plaintiff agreed he told Dr Chan he was only taking Endone once or twice a week, and sometimes he would take it at night when he had back pain. He agreed, when he saw Dr Chan in June, he had had the epidural in February and he was taking Endone, generally in the evenings.
100 The plaintiff told Dr Chan he took Endone one or two times a week at the time when he needed it. He did not say he took it generally in the evening. He takes Endone if he is in pain. It was “plain wrong” that he took it generally more often in the evening.[47]
[47]T18
101 Taking Endone leaves the plaintiff feeling very drowsy and slow. In the past he had tried to stay off it as much as possible, as it was addictive, and he did not like taking it as it made him feel like a zombie.
102 When he was still at work doing light truck driving on light duties, the plaintiff sometimes took Endone and drove the vehicle. He felt it was unsafe, but did it because he wanted to keep working. It was like driving drunk. He realises he could have hurt himself or someone else while driving under the effects of this medication.
103 Recently, Dr Chee referred the plaintiff for another epidural for which approval is now being sought. About a week or two after that injection, the pain will be less strong and the flare ups less frequent for a while.
104 The plaintiff agreed, after he had another epidural, he anticipated he would not need Endone as much for a while, it would depend on the flare up; however, there is not a period he did not need it at all. As the epidural wears off, the flare ups are more constant.[48]
[48]T23
105 The plaintiff would be affected the next day if he had taken Endone at 7.00pm or 8.00pm the previous night[49] but then said it would not stop him working the next day. It takes about eight or nine hours for the Endone to wear off. He does not know whether or not it is slow release.[50]
[49]T21
[50]T23
106 Whilst giving evidence, the plaintiff sat and stood at various times. He explained because of back pain, he has to get up and walk around, and sometimes he has to lie down. He can go thirty minutes, sometimes forty-five, sitting. Not long after an epidural, he can push to increase his sitting tolerance to an hour on a good day.[51]
[51]T34
107 On a bad day, the plaintiff can sit for only thirty minutes, depending on the pain or just numbness. He needs then to stand up and walk around for ten to twenty minutes.[52] This would be the situation if he was working in a job which required a lot of sitting.[53]
[52]T38
[53]T39
108 Sometimes, the plaintiff wakes up in pain and sometimes, the pain wakes him up. If he takes Endone, mentally he does not have any concentration and, physically, he has to just wait for it to kick in and “hope”. At that time, he feels horrible, just like someone has got a great big needle and it is just constantly pushing it in. If he had to take Endone, he would not be able to work in a fast-paced environment, having to concentrate and move quickly.[54]
[54]T40
Medical evidence regarding work capacity
109 As pain and suffering was conceded in relation to the plaintiff’s organically-based lumbar condition involving a disc prolapse at L4-5, I propose to deal with medical evidence as to work capacity and permanence only.
110 Counsel for the plaintiff indicated the main issue was the plaintiff’s Endone intake which prevented him from pursuing more active work engagement. It was submitted the defendant’s witnesses did not take account of the effects that medication, nor did the vocational assessor when considering the plaintiff’s current work capacity.[55]
[55]T2
111 Counsel for the defendant submitted the plaintiff has a retained work capacity, evidenced by his ability to resume full-time work after the incident and, accordingly, he does not suffer the requisite loss of 40 per cent.
Treaters
112 Associate Professor Brazenor saw the plaintiff on referral from Dr Ho during 2012. He diagnosed wear and tear on the L4-5, L5-S1 discs, and provided him with “Rules for Living” in terms of further management of his back condition.
113 In a letter to Dr Ho of 20 June 2012, Associate Professor Brazenor advised that the plaintiff had many problems and unfortunately he now has a permanent restriction on his employment with respect to bending at the waist and lifting to or from levels below the waist.
114 The plaintiff was first seen by Mr Paul Smith, neurosurgeon, in August 2013, and appears to have been last seen in October that year.
115 Overall, it was Mr Smith’s impression that the plaintiff’s capacity for work was quite limited in terms of physical work. He considered the plaintiff’s ongoing pattern of discogenic pain and lower lumbar disc injuries would place him at quite significant risk of repeat injury with any significant physical requirements.
116 Mr Smith did not think the plaintiff would have the capacity for lifting from the ground and thought his capacity for lifting from bench height would be no greater than 5 kilograms. He did not consider he would have a capacity for prolonged sitting or standing stationary work for any greater than one-hour stretches. The plaintiff would therefore require quite flexible work without heavy lifting requirements.
117 In her report of 3 July 2017, Dr Chee noted the plaintiff had attended several computer courses to upskill himself and had been attempting to look for new jobs without success. She thought he is not functionally able to and she did not recommend he return to his pre-injury duties as a truck driver. She recommended that he seek a job within various restrictions.
118 As the plaintiff had not been working for a significant period of time, Dr Chee would also recommend that he gradually increase his working hours, starting from four hours a shift, increasing by one to two hours every two to three hours as tolerated, with the following restrictions: avoid excessive walking; climbing stairs; avoid pushing, pulling, bending, twisting; avoid lifting in excess of 10 kilograms; avoid prolonged sitting for more than an hour; avoid standing for more than thirty minutes and take five to ten minute breaks as required.
119 Based on the plaintiff’s education skills, experience and current medical restrictions, Dr Chee noted that Work Able had suggested the following suitable positions, with which she agreed : (working strictly within medical restrictions) - retail sales, customer service, office assistant (transport industry) and clerk (transport industry).
120 Dr Boltros from St James Family Practice in East Keilor saw the plaintiff in May and July 2016 and January 2017.
121 Dr Boltros referred the plaintiff to a counsellor at the practice on the first occasion and referred him to Dr Ibrahim, psychiatrist, on the second. The plaintiff attended on 14 January 2017 to receive a prescription for painkillers, as his regular general practitioner was away.
122 Dr Boltros did not comment on the plaintiff’s work capacity.
123 Dr Ibrahim, psychiatrist, reported in June 2017, having first seen the plaintiff in September 2016 for management of his psychiatric disorder.
124 On presentation, the plaintiff described symptoms of an Adjustment Disorder and depression. He was prescribed an antidepressant, Amitriptyline, and also Fluoxetine – the doses of which were altered according to clinical needs and tolerability.
125 Dr Ibrahim was not sure of the plaintiff’s physical capacity to work but the plaintiff was clear to explain to him the injury caused him to have little, if no chance to be employed again in an employment that suits his education, age and experience.
126 Ms Christofidis, psychologist, reported in July 2017, noting the plaintiff commenced counselling in May 2016 and continued to be seen regularly.
127 Ms Christofidis diagnosed Anxiety and Depression, noting a sleep disorder and insomnia, social isolation, lack of concentration and memory, and fatigue. At that stage, from a psychological perspective alone, she believed the plaintiff was unfit to work in any capacity.
Medico-legal evidence
128 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff in June 2017.
129 On examination, thoracolumbar spinal movements were restricted. There was no objective neurological abnormality of the lower limbs and no signs of radiculopathy.
130 Mr Brownbill noted radiological investigations had demonstrated longstanding degenerative changes of the lower two lumbar intervertebral discs.
131 Mr Brownbill thought the plaintiff, in future, should avoid activities involving heavy lifting, full spinal mobility, repeated bending or prolonged sitting or standing. However, from a physical neurosurgical point of view, he would be regarded as capable of attempting a graded return to employment avoiding these activities. Any such attempt should be performed under close medical supervision.
132 Mr Brownbill considered the prognosis was uncertain and the plaintiff may be unable to continue with such an employment attempt in an ongoing or reliable fashion.
133 Mr John O’Brien, orthopaedic surgeon, examined the plaintiff in May 2017.
134 Mr O’Brien noted current signs were in fact subjective, with quite marked restriction of lumbar movement not associated with any obvious signs of nerve root compromise. He concluded the plaintiff now presented with chronic non-specific lower back pain, and given the radiological change, it was possible that the underlying pathology was indeed symptomatic lumbar spondylosis.
135 Mr O’Brien regarded the prognosis as poor, noting the plaintiff had well established chronic back pain which was now likely to be permanent.
136 Mr O’Brien thought the plaintiff certainly reported a moderate disability associated with his chronic back pain. He, in fact, was unable to return to his pre-injury work as a truck driver since the incident, and although he reported undergoing modified duties for about two years, he clearly struggled during that time, requiring a lot of treatment and medication.
137 In Mr O’Brien’s view, currently the plaintiff certainly is not physically capable of undertaking his pre-injury occupation and, indeed, he would consider the plaintiff is now incapable of undertaking even modified duties. He thought the plaintiff was totally incapacitated and believed this was permanent.
138 Mr O’Brien further noted the plaintiff’s chronic pain continues to result in significant restriction of his general, social, domestic and recreational activities, and that will be permanent.
139 Dr James Chan, occupational physician, examined the plaintiff in June 2017.
140 The plaintiff then reported severe pain in his lower back that radiated to the left thigh. The pain was about 6 to 7 out of 10, rising to 9 out of 10 when it was bad, and only when the epidural had worn off, and immediately following an epidural it was 3 to 4 out of 10, rising to 8 out of 10 on a bad day.
141 Dr Chan noted an MRI scan of the lumbar spine of 29 February 2012, following which it was reported there were chronic degenerative disc changes at L4-5 and L5-S1. At L4-5, a disc bulge produces mild indentation of the theca. At L5-S1, a right paracentral disc protrusion produces a mild posterior displacement of the traversing nerve root in the right lateral recess.
142 Further, there was an MRI scan of the lumbar spine of 6 September 2013, following which it was reported there was chronic degenerative disc disease at L4-5 and L5-S1. There was right paracentral disc protrusion at L5-S1, causing minor displacement of the traversing S1 nerve root. However, it was noted that was less significant compared to the previous study, and there was no evidence of progression or disease.
143 Dr Chan thought the plaintiff suffered a lower back injury, resulting in chronic discogenic pain on the background of degenerative changes noted radiologically.
144 Dr Chan noted the current medication was Endone, 10 milligrams, one to two as needed (usually one to two per week). In a more general summary in his report, he noted the plaintiff took about six to eight Panadeine Forte per day for pain, and on a bad day, which occurred about once or twice per week, would also need some Endone in the evening on those days.
145 Based purely on physical injuries alone, Dr Chan thought the plaintiff would be able to sit for up to thirty minutes, would need to vary his posture as required, and not stand statically in one spot for more than five to ten minutes.
146 Dr Chan noted the plaintiff could walk for up to half an hour on flat, even ground, avoiding repetitive steps and stairs, and could drive between thirty to thirty-five minutes without a break, with longer duration on better days. He would also need to avoid squatting and kneeling. Further, he should avoid repetitive bending, or bending below the waist level and heavier lifting above 5 kilograms.
147 Dr Chan noted the plaintiff would need to achieve lower levels of baseline pain for his functional capacity to increase and to have reductions in the mentioned restrictions (reported pain 6 to 7 out of 10 when the epidural has worn off and 3 to 4 out of 10 immediately following the epidural up to 9 out of 10 with flare ups). Dr Chan thought the plaintiff had no capacity to return to full-time unrestricted work in his pre-injury position.
148 Noting the plaintiff had completed courses in retail, computers and the Certificate IV, that he had been unsuccessful in obtaining any position due to his restrictions, Dr Chan thought he would be likely only to cope with positions not involving any physical manual handling, where he could vary his postures as required and was likely to only cope with initially a part-time position at two to three days per week, or reduced hours per day. This would also be when the pain levels were lower immediately following an epidural.
149 Dr Chan noted if the plaintiff’s pain levels rise over 5 out of 10, if he was taking more analgesic medication and had more symptoms, he was more likely to take time off work and not be able to sustain those hours reliably.
150 Dr Chan thought the prognosis was guarded to poor.
151 Dr Chan provided a further report, having been forwarded Recovre’s report of 26 May 2017, and Dr Mutton’s updated reports.
152 Noting the suggested jobs within physical tolerances in the Recovre report, Dr Chan had concerns with each of the clerk’s positions, as some employers often require some infrequent manual handling of lighter items up to 5 to 10 kilograms. He noted, however, the worksite assessments for clerk and retail sales person’s positions specifically state such manual handling is not required and therefore the tasks were suitable for these positions. If there was potential work at another worksite, a worksite assessment would be needed to be conducted.
153 With respect to the vocational education teacher position, Dr Chan noted the task description was generic and some positions at educational institutions required the teachers to do some manual handling. The task description seemed suitable for the plaintiff, but Dr Chan recommended any suitable position would need to provide a detailed task description to ensure it complied with physical tolerances. Frequent changes in posture from sitting to standing were essential based on the plaintiff’s history.
154 Noting the plaintiff had been out of the workforce for a long time, Dr Chan thought a graduated return to work, and increasing his hours was recommended. Depending on the physicality of the job and specific tasks, the person concerned may cope better or worse. Generally, a start of three days a week, with days off in between is trialled, and then increasing as tolerated. As the plaintiff has not worked in any of the positions, and not worked for many years, it was extremely difficult to make further comment until a trial had taken place.
155 Dr Chan noted that all three medications taken by the plaintiff could potentially cause side effects of constipation, nausea, sedation and light headedness, with Endone generally the strongest.
156 Dr Chan noted the plaintiff’s dosage and reporting being able to drive and concentrate while taking Panadeine Forte. Logically, the plaintiff had completed his courses while taking his medication and would be able to use a computer. The plaintiff would, therefore, be able to perform duties while on Panadeine Forte or Mersyndol Forte. If he was taking Endone during the day, he may have difficulties performing these duties if he suffered the side effects, particularly nausea, sedation and light headedness. If taking a small dose of Endone at night and sleeping off the effects, he is less likely to suffer the side effects, but a specific history would need to be taken to confirm whether he still experienced side effects the next morning when taking the medication overnight.
157 Dr Chan noted his comments were similar to those provided by Dr Mutton.
Vocational evidence
158 In a WorkSafe Initial Assessment Report dated 24 January 2013, it was noted the plaintiff returned to modified duties on 19 September 2011. Since that time, he had attempted a return to his pre-injury role of truck driver in August 2012; however, had to cease after a few weeks due to significant increase in pain. He had since returned to work in November 2012, working eight hours a day, five days a week on alternative duties, and he was currently certified fit for modified duties eight hours a week, five days a week.
159 It was noted that the modified duties set out in that report would be available on a temporary basis until May 2013 and possibly further. However, those duties were not likely to be made permanent and it was difficult to determine what timeframe they would be made available for. The employer also advised that due to a current slowdown in business they are not in a position to create a new permanent role.
160 Katherine Rintoule from Flexi Personnel provided an employment assessment in July 2017.
161 In her opinion as a recruiter, from reading the plaintiff’s medical reports and following discussions with him, Ms Rintoule believed his capacity to perform his pre-injury role or any of his pre-injury working environments, had been significantly affected by his injury and subsequent physical restrictions on their own, and even furthermore with his reported difficulties concentrating and the negative side effects of his medications. Based on his medical records and how he presented at their meeting, she would not consider him for any vacancies without a medical clearance from his doctor clearly outlining the hours and duties he may safely perform.
162 Ms Rintoule thought the receipt and despatch job, from a recruitment perspective, was not suitable alternative employment for the plaintiff as she believed he could not perform the role to a commercially acceptable standard.
163 Ms Rintoule would not consider the logistics clerk’s role as suitable employment for the plaintiff, noting the stringent time pressures, attention to detail and organisational skills essential to an incumbent to successfully perform that role.
164 In terms of a stock clerk, from a recruitment perspective this would not be viewed as suitable employment for the plaintiff, given the work is in a fast-paced environment, the need to work in a timely and efficient manner, together with the plaintiff’s lack of commercial clerical experience and computer use, physical restrictions, fluctuating pain levels and difficulties concentrating.
165 Ms Rintoule questioned the plaintiff’s reliable and consistent ability to perform a rental sales person role efficiently and to a financially sustainable level, and would not recommend it as a suitable employment, noting long periods seated, that assistance may be required to help clients to carry goods, the plaintiff’s lack of customer service skills and his issues with pain and medication.
166 In terms of the vocational education trainer role, Ms Rintoule thought that was not suitable alternative employment, given the high physical component, with long periods of standing to oversee student work, the plaintiff’s reliance on medication when working in high risk environments, and the constant analysis and execution of training and lesson planning required in that role.
Claim documentation
167 On the Claim Form signed by the plaintiff on 7 November 2011, he set out he was working thirty-eight hours a week, with a usual pre-tax hourly rate of $22.46, with usual pre-tax weekly earnings of $853.
168 By letter dated 8 September 2015, Xchanging advised it had accepted the plaintiff’s impairment benefit claim in relation to a lower back and psychiatric condition, with an injury date of 30 August 2011.
Termination letter
169 By letter dated 11 November 2013, the employer advised the plaintiff that at a meeting on 6 November 2013, the plaintiff accepted he was no longer able to meet the inherent requirements of his appointed role, and that meant his employment with Cope Sensitive Freight would be terminated, effective 6 November 2013.
170 It was noted that employment was terminated on the grounds the employer could no longer meet the inherent physical requirements of the plaintiff’s appointed role as a delivery driver.
The Defendant’s medical evidence
171 Dr Ibrahim completed a questionnaire which he forwarded to Dr Boltros on 12 September 2016. In correspondence of that date, Dr Ibrahim thanked Dr Boltros for referring the plaintiff for management of his psychiatric condition.
172 The questionnaire included the answer “full night’s sleep” to a question, “Do you have problems with sleeping?”
The Defendant’s medico-legal evidence
173 Dr James Rowe, specialist occupational physician, examined the plaintiff in May 2012, commenting on the appropriateness of current treatment. He did not comment on work capacity.
174 Dr Clive Kenna, musculoskeletal physician, examined the plaintiff in November 2012 to advise as to the appropriateness of the plaintiff’s treatment.
175 Dr Kenna diagnosed a discogenic injury to the lower lumbar spine, presenting as back and somatic type referral involving the left lower extremity. He then thought the plaintiff was unfit for pre-injury duties and hours, but was fit for alternate, not modified duties, on a full-time basis, which he was currently doing.
176 Dr Jager, forensic psychiatrist, examined the plaintiff in August 2013. He diagnosed an Adjustment Disorder with Depressed Mood, consisting of feeling depressed in relation to his physical injury. He expected the psychiatric condition to ease if and when the physical state improved over time.
177 Mr Stephen Stern, psychiatrist, examined the plaintiff in June 2015 for the purposes of an AMA assessment. He diagnosed a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood related to the work injury and noted the psychiatric state had stabilised.
178 Dr Philip Mutton, occupational physician, has examined the plaintiff on four occasions, most recently on 26 April this year.
179 Dr Mutton thought the mechanism of injury was consistent with a diagnosis of acute disruption and aggravation of pre-existing lumbar degenerative disease. He considered it was unlikely the condition would fully resolve, given the pre-existing degenerative changes noted, and he thought the clinical course would be quite variable.
180 Dr Mutton would not recommend the plaintiff return to his pre-injury duties due to the inherent physical demands and the known pathology in his back.
181 Dr Mutton noted the 2013 Vocational Assessment Report, with the identified suitable employment options of customer service assistant, enquiry clerk in the transport injury, office assistant-general clerk in the transport industry, fleet controller, transport despatcher, weighbridge operator and warehouse inventory clerk, including receiving and despatching clerk. He thought those duties would be appropriate for someone suffering from chronic lower back pain and were consistent with the plaintiff’s efforts for obtaining employment, which also include training and assessment as a vocational teacher, and also retail sales.
182 Dr Mutton would expect the jobs would be such the plaintiff would be able to undertake them on a full-time basis.
183 In his report dated 26 April 2017, Dr Mutton confirmed he maintained his previously expressed opinion that the plaintiff has a current work capacity, noting he is actively looking for work. He agreed the plaintiff should have a 10-kilogram weight limitation, and needed to avoid pushing, pulling and bending at the waist. He needed to be able to sit and stand and interchange, and should avoid professional truck driving activities.
184 Dr Mutton provided a further report in June 2017, having been provided with the May 2017 vocational assessment.
185 Dr Mutton believed the five tasks identified were all appropriate – certainly a receiving despatch clerk, logistics clerk and stock clerk, and rental sales person would not be physically demanding – and the plaintiff would have an opportunity to sit and stand and interchange.
186 Dr Mutton was less certain about the vocational teacher option and just what sort of teaching the plaintiff would be expected to undertake.
187 Dr Mutton noted the vocational report also provided commentary on a number of worksite assessments. These included a receiving and despatch clerk role or logistics clerk role, a stock clerk role and a rental sales person role in the car business. The descriptions and photographs included outlined the tasks which Dr Mutton believed could be undertaken within the restriction he had suggested. He believed the tasks, therefore, were suitable. He noted in one particular role, there may be a need to access a flight of stairs, and that would be within the plaintiff’s capacity.
188 Following a graduated return to work, Dr Mutton thought it quite likely the plaintiff could work on a full-time basis, taking into account his presentation and known pathology.
189 Mr Michael Shannon, orthopaedic surgeon, initially examined the plaintiff for the purposes of an AMA assessment in August 2015, and more recently, saw him in June 2017.
190 Mr Shannon diagnosed mechanical back pain associated with aggravation of pre-existing degenerative disc disease in the lumbar spine.
191 On re-examination, Mr Shannon noted the plaintiff took Endone when his pain was bad, usually about twice a week, but on most days, he controlled his pain with Mersyndol Forte, which he took up to six a day.
192 Mr Shannon thought there had been little change since the previous impairment assessment. The plaintiff had ongoing symptoms and signs consistent with mechanical back pain associated with degenerative disc disease of the lower two lumbar levels.
193 Mr Shannon thought the plaintiff remained unfit for his former occupation or for other labouring work, including work involving prolonged or repetitive bending or heavy lifting, and prolonged standing and sitting. He was fit for light work with those restrictions, providing he could vary his posture.
194 The identified employment options including customer service clerk, office assistant, fleet controller, weighbridge operator and warehouse clerk would all appear to fall within restrictions Mr Shannon suggested. He noted the plaintiff would probably require an initial period of part-time employment, as he had been out of the workforce for four years.
195 Mr Shannon thought the prognosis was unfavourable, given the plaintiff was significantly overweight and did not appear to have been able to improve this situation, and given he had ongoing symptoms since the injury, and physical signs were unchanged since the previous examination.
Vocational evidence
196 Janette Ash, occupational therapist with Recovre, provided a vocational assessment report in May 2017.
197 Based on the plaintiff’s education, work history, transferable skills, and on the opinions that he retained a capacity for suitable employment, the following work options were identified as suitable for him to consider, namely:
(i) receiving and despatch clerk ($1,050 - $1,197 gross per week)
(ii) logistics clerk ($942 - $1,050 gross per week)
(iii) stock clerk ($1042 - $1,176 gross per week)
(iv) rental sales person ($813 - $1,098 gross per week)
(v) vocational education teacher ($1,304 - $1,569 gross per week).
198 Four actual jobs were identified and assessed as likely to be physically suitable for the plaintiff. The first, as a receiving despatch clerk, was with a packaging and processing plant in Derrimut. The second was a logistics clerk in Campbellfield. The third was a stock clerk with a business who sourced, designed and packed promotional show bags at Derrimut, and the fourth was as a rental sales person with a car hire business in Preston.
Overview
199 The only issue for determination is loss of earning capacity, pain and suffering having been conceded.
Credit
200 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[56]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[56](2010) 31 VR 1 at paragraph [12]
201 As I advised the parties during the hearing, I found the plaintiff to be a witness of truth. In response, counsel for the defendant indicated that it was not suggested to the contrary.[57]
[57]T47
202 As counsel for the plaintiff submitted, the plaintiff gave thoughtful and considered evidence, apart from being honest. Further, it was submitted that the plaintiff was plainly not work shy and he would work if he could given his quite extensive efforts by way of retraining and his unsuccessful attempt at Britz “which only underscored the physical problem presented to him by his injury”.[58]
[58]T52
Loss of earning capacity
203 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
204 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
205 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
206 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
207 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
208 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
209 The parties agreed the appropriate “without injury” earnings figure was based on the plaintiff’s pre-incident earnings of $60,433, being weekly, $1,162. 60 per cent thereof is $697.[59]
[59]T43
210 Counsel for the defendant submitted the plaintiff had not established the requisite loss. Whilst not attacking his credit, it was submitted the plaintiff was not a reliable witness as to his present work capacity and the effects of his medication.[60]
[60]T48
211 Reliance was placed on the plaintiff’s return to work with the employer for two years post incident. He had some days off, but there was no evidence he was having great slabs of time off work. At that time, he was capable of performing full-time work and had demonstrated his reliability attending work whilst taking Endone.[61]
[61]T48
212 Further, the plaintiff had demonstrated the ability to complete the various courses within the designated time, and the capacity to requalify himself, such that he made dozens of applications for jobs, many on a full-time basis. It was submitted the Court really could not be satisfied that the unpredictability of his pain and his claimed unreliability was sufficient to say the plaintiff could not perform work four days a week in the broad hours suggested.[62]
[62]T51
213 Further, a number of medical practitioners, including the plaintiff’s general practitioner, considered he has a capacity for suitable employment.
214 Dr Chee thought four of the suggested jobs were appropriate. She is prescribing Endone and is not certifying the plaintiff as unit for work.[63]
[63]T49
215 Dr Mutton thought the five tasks identified were all appropriate and could be performed by the plaintiff on a full-time basis.[64]
[64]T45
216 Mr Shannon considered the five suggested jobs all appeared to fit within the restrictions he suggested and that the plaintiff would probably require an initial period of part-time work as he has been out of the workforce for four years.[65]
[65]T46
217 Dr Chan also thought the plaintiff had the capacity to do some of the suggested jobs.
218 Further, counsel for the defendant submitted Endone was being “over emphasised” in relation to the plaintiff’s actual incapacity for work.[66]
[66]T50
219 Working the suggested hours in the jobs put forward by the vocational assessor, it was submitted the plaintiff would earn in excess of $697 per week.
220 In the role of despatch clerk, working 24 hours per week at $29.60 per hour, the plaintiff would earn $710. As a logistics clerk, he would need to work 27 hours at $29.60 per hour to earn $710 per week.[67]
[67]T41
221 In response, counsel for the plaintiff submitted the plaintiff’s return to work after the incident had to be looked at in context.
222 It was not a real job with the plaintiff describing the section in which he performed very light duties as like a hospital ward, where he was placed with other WorkCover recipients.[68] By the time his employment was terminated, the plaintiff’s “work duties” consisted of only reading the news on the internet, having been unable due to his back condition to undertake other more physical tasks including driving.
[68]Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230 at paragraphs [10] and [39]
223 Further, it was apparent from the 2013 vocational report that a number of the duties the plaintiff was then performing were of a temporary nature.[69]
[69]See paragraphs [157] and [158] of my Judgment
224 In any event, the employer could not find suitable employment for the plaintiff, advising in its letter dated 11 November 2013 that it had no suitable work for him and ultimately terminated his employment.[70]
[70]T53
225 Whilst a number of practitioners thought the plaintiff was physically capable of some of the jobs identified, counsel for the plaintiff submitted the issue was one of the plaintiff’s reliability to attend work on a regular basis due to the unpredictable nature of his pain as Mr Brownbill explained particularly because the plaintiff is an honest man who is not work shy and has tried to get on with work.[71]
[71]T53
226 It was submitted the plaintiff is unfit to work when he has taken Endone in the morning. Even if he has not taken this strong medication, there are days when his back pain is too severe to allow him to sit for more than half an hour. There would be the problems working in a role such as despatch clerk, having to regularly get up for fifteen minutes and just walk around and not work.[72]
[72]T54
227 It was submitted the courses the plaintiff had undertaken were not complex. They were all within the local community and there was, no doubt, a fair bit of flexibility. The plaintiff could not do those courses without interruption due to his back pain. Further, it was submitted he is a man who has tried to do his best with his injury and the fact he cannot gain employment “speaks heaps.”[73]
[73]T54
228 In this case, where there is an organically-based spinal condition for which ongoing treatment is required, whether Endone or painkillers of a lesser strength, and the plaintiff’s pain is significant and unpredictable and the level of which was not strongly challenged, counsel for the defendant could only draw on matters such as the return to work with the employer in defence of this application.[74]
[74]T50
229 As counsel for the defendant correctly noted, in the circumstances of this case, and other applications of this nature, the Court is required to make the very value judgment the Court of Appeal has made clear on many occasions.[75]
[75]T51, Humphries v Poljak [1992] 2 VR 129, 167
230 I accept the plaintiff would return to work on an ongoing and reliable basis if he was physically capable of doing so. He is a motivated man who is not work shy, with a solid work history, having been with the employer for eight years pre incident and two years thereafter.
231 The plaintiff may have been taking Endone at work in the later period with the employer but as he described, at that stage, his duties were far from onerous. It was not a real job, with him ending up reading the news on the internet and not doing much work at all. Driving had stopped because of Endone.
232 On ceasing that employment, the plaintiff obtained a job at Britz but could not cope working beyond two days because of back pain when bending to inspect vehicles. He then engaged in a range of courses which have not led to further employment. He had significant difficulty coping with the very basic work experience role at Officeworks, needing to take regular breaks because of his back pain.
233 Whilst the plaintiff on his own evidence could cope at times with the physical requirements of the various suggested jobs with significant restrictions, he would not be a reliable employee, given the nature and unpredictability of his pain, to attend work on a regular basis, such that he would be able to earn in excess of $697 per week.
234 When the plaintiff takes Endone, his capacity for work is further diminished.
235 Taking into account all the evidence, I am satisfied that the plaintiff has established a loss of earning capacity of 40 per cent for the foreseeable future. In my view, the plaintiff’s impairment is permanent as there has been no real improvement in his condition, despite treatment for over eight years.
236 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
237 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, he has satisfied the requirements of s134AB(38)(g).
238 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity in relation to his sub-paragraph (a) application, pain and suffering having been conceded.
239 Having made this finding, I am not required to determine the application pursuant to sub-paragraph (c).
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