Ward v VWA
[2014] VCC 1824
•07/11/2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01908
| BRIAN WARD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23/09/2014 | |
DATE OF JUDGMENT: | 07/11/2014 | |
CASE MAY BE CITED AS: | Ward v VWA | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1824 | |
REASONS FOR JUDGMENT
---
Subject: Section134AB(16)(b) of the Accident Compensation Act 1985 (Vic)
Catchwords: Pain and suffering and pecuniary loss – injury to lumbosacral spine
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited: Alter v Acon Laboratories [2008] VCC 713; Manthopoulos v Spencewill Nominees Pty Ltd [2012] VMC 15.
Judgment: Leave refused to commence proceedings at common law.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | D Hore-Lacy SC | Maurice Blackburn |
| B Hutchinson | ||
| For the Defendant | J Batten | Hall & Wilcox |
HER HONOUR:
Introduction
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (“the Act”) for injury suffered by the plaintiff to the lumbosacral spine. The plaintiff alleges that he suffered the injury in the course of, or due to the nature of, his employment with the defendant on 12 November 2010 and between 18 and 24 November 2010. Leave is sought in relation to both pain and suffering and loss of earning capacity.
2 The defendant accepts that the plaintiff suffered a disc sprain to the lumbosacral spine, during the course of his employment. However the defendant contends that this injury was an exacerbation of the underlying degenerative condition of the plaintiff’s lumbosacral spine and that the plaintiff is no longer suffering from the effects of that exacerbation which has resolved.
3 To the extent that the plaintiff suffers from the consequence of any secondary mental illness, the defendant contends that the plaintiff has failed to strip away the symptoms and consequences of his psychiatric or psychological condition.
4 If the court’s finding is that the plaintiff continues to suffer from the symptoms of the admitted injury, the defendant contends that the plaintiff does not meet, by way of consequences, the very considerable test. The defendant also puts in issue the extent to which the plaintiff can be believed with respect to his claimed consequences.
5 With respect to loss of earning capacity, the defendant contends that the plaintiff has a capacity to engage in alternative or suitable employment and that the plaintiff has effectively retired to Lakes Entrance and withdrawn from the open labour market.
6 The plaintiff was the only witness called to give evidence and be cross-examined. As is usual in these cases, the parties otherwise relied upon reports and documents contained in their respective Court Books.
Background
7 The plaintiff is 64, having been born on 24 June 1950. He grew up in the eastern suburbs of Melbourne and completed his education at the end of Form 4, aged 16 (Year 10 level).
8 After leaving school, he worked in a number of different areas, including as a printer, a labourer, and as clerical assistant with the Department of Civil Aviation for three years.
9 In the late 1960s, he joined the Australian Navy and was employed in communications on the HMAS Sydney.[1] He served in the Navy for some six years.
[1]Transcript (“T”) 18
10 In 1976, the plaintiff left the Navy and was employed driving a Loy’s soft drinks truck for about 12 months. He also worked for a window furnishings company in Mitcham as a production manager for approximately 7 years. He was previously married and has two boys from that marriage. He is now divorced
11 In 1985, the plaintiff started working as carpet layer. He worked for Blest Carpets as a carpet layer for about five or six years mainly laying domestic carpet. During this period, in December 2007, he suffered an injury to his right foot and was off work for six weeks and received payments of compensation.
12 The defendant is a carpet retailer based in Camberwell and the plaintiff commenced employment with the defendant in January 2008. They had an agreement, whereby he was to be paid $20 per broadloom metre laid with 25 per cent of gross payments made to him to be taken out for purposes of his personal income tax.
The Accident
13 On 12 November 2010, the plaintiff was carrying out quite a large job at a residential premises located in Manning Road, East Malvern. The house was double-storey and the job involved laying carpet to three bedrooms, a passage and a stairway.
14 The bedrooms and passage were located on the upper floor. The work necessarily involved him lifting and carrying awkward rolls of carpet up and down a narrow, winding staircase. The plaintiff believed that this put a lot of strain on his back.
15 At the time of the incident, the plaintiff was laying carpet on the stairway and using a tool known as a knee kicker. A knee kicker is used to kick the carpet into place and to stretch it so that it then attaches to the smooth edge. As the plaintiff was using the knee kicker, he felt an extremely sharp pain in his low back.
16 The plaintiff described the pain as being “quite excruciating”. Due to the severity of the pain, he was barely able to move. The pain was in his low back and radiating down his right leg. It was incredibly severe.[2]
[2]Plaintiff’s Court Book (“PCB”) 32
Treatment
17 The plaintiff contacted his employer and called an ambulance, and he was taken to the Cabrini Hospital in Malvern. At the Cabrini Hospital, he was assessed and given strong painkilling medication. He then underwent a CT scan which showed an L5-S1 disc injury.
18 The plaintiff was given a certificate for a couple of days off work and then discharged to the care of his local general practitioner, Dr Bill Verhoef, at the Lyons Road Medical Centre in North Croydon. He attended Dr Verhoef on Tuesday, 16 November 2010 and received a certificate for a further four days off work.
19 Over the next week or so, there was some slight improvement in the plaintiff’s symptoms and he returned to work on 22 November 2010. He worked on Monday, but was quite sore on the Tuesday. On Wednesday, 24 November 2010, he suffered a significant increase in his symptoms at work after tripping over a helper’s leg. He had to stop work at that stage and he again saw Dr Verhoef, who put him off work with a certificate.
20 The plaintiff described his symptoms at that stage as:
“I was experiencing a lot of back pain with severe spasms. The doctor prescribed a number of medications including Diazepam, Diclofenac and Panadeine Forte, four times day. I was also referred to physiotherapy.”
21 On 26 November 2010, the plaintiff completed a WorkCover form. The form was accepted and he received weekly payments of compensation and reimbursement of medical expenses.
22 Over the next few months there was little change in the plaintiff’s condition, which physiotherapy did not help much with, nor did the medication. In February 2011, he was offered light work in the office in administration tasks but felt unable to handle the job due to stress and anxiety.[3] Dr Verhoef provided him with certificates of incapacity.
[3]T28
23 Throughout the early months of 2011, the plaintiff continued to experience chronic low back pain and right leg pain. After he submitted his claim for compensation, the relationship with his employer deteriorated rapidly. It was made clear to the plaintiff by his employer that he was unhappy about the WorkCover claim. This caused the plaintiff a great deal of anxiety and distress.
24 In March 2011, Dr Verhoef referred the plaintiff to the neurosurgeon, Mr Paul D’Urso, whom he first saw on 12 April 2011. At that stage, the plaintiff found it difficult to sit or stand for prolonged periods, walk for a long time or drive for lengthy periods. He was having a lot of difficulty sleeping at night due to pain. He was not offered any further return to work plan by his employer.
25 Mr D’Urso arranged for the plaintiff to undergo an MRI scan, which took place on 11 May 2011. The plaintiff was reviewed by Mr D’Urso on 15 July 2011 to discuss the results of the scan. Mr D’Urso told him that he did not recommend any operation at that stage and that he should continue with conservative forms of treatment for the time being.
26 Mr D’Urso also recommended that he not return to work as a carpet layer and told him to avoid repetitive bending, twisting or lifting activities in the workplace. The plaintiff was told he would be better suited to a light duties occupation on a permanent basis.
27 The plaintiff accepted Mr D’Urso’s advice and tried to the best he could to rehabilitate himself. He underwent three computer courses. They only lasted a matter of weeks and were designed to teach basic computer skills, such as email and internet.
28 The plaintiff also underwent a number of other courses, including:
·The responsible serving of alcohol;
·A Level 1 food handling course; and
·A barista course.
29 However, the plaintiff was not able to obtain work in any of these areas. He found that being aged 62 with no experience in these areas , together with the restrictions due to his back injury, were a major impediment to finding work.
30 In March 2012, following the separation from his wife, he moved to a unit in Yarra Glen. He looked for work in the area, without any success. He kept as active as he could, undertaking walking and the exercises prescribed for him by the physiotherapist.
31 The plaintiff was advised on 23 August 2012, that the insurer for the employer accepted liability for permanent impairment with respect to the lumbar spine and any associated psychological conditions. He subsequently received a permanent impairment payment.
32 In March 2013, the plaintiff moved to Kalimna near Lakes Entrance, where he is living in a caravan which he purchased out of his superannuation. The weekly payments of compensation were terminated in May 2013, and since then, he has been living off his retired serviceman pension of $871.30 per fortnight[4].
[4]T18
Medical Opinion
Plaintiffs medical reports
Dr Verhoef
33 In his reports dated 12 December 2011 and 1 June 2013, Dr Verhoef gave a history of the plaintiff’s injury ,treatment and symptoms. To summarise :
· The plaintiff sustained a lower back injury on 16 November while laying carpets;
· The CT scan taken at Cabrini Hospital showed disc bulge at L5-S1 level without neuro-compromise ;
· He had suffered several aggravations of his back pain and was unfit for his previous occupation;
· He had difficulties with his employer regarding his WorkCover claim;
· He suffered anxiety and depression as a result of chronic pain and disability;
· Treatment had consisted of physiotherapy, anti‑inflammatory agents, analgesics, hydrotherapy, a gymnasium program and anti-depressants;
· He was restricted to office-type work for four hours per day, three days per week, increased over several months.
Dr Paul D‘Urso - Neurosurgeon
34 In his report of 1 December 2011, Mr D’Urso diagnosed the plaintiff as being “symptomatic from degenerative lumbar disc disease”. A small disc prolapse was identified at L1-2 and L5-S1 and Mr D’Urso believed that the workplace activity on 12 November 2010 caused an aggravation of degenerative disc disease, acute back pain and sciatic symptoms.
35 Mr D’Urso was of the opinion that the plaintiff’s prognosis should be satisfactory and stated that he “would be surprised if there was any substantial deterioration or requirement for any surgical intervention in the foreseeable future.”[5]
[5]PCB 42
Ms Gaya Mahanama - Physiotherapist
36 On 6 December 2011, Ms Mahanama reported that the plaintiff consulted her first on 23 November 2010, with respect to a work injury sustained on 12 November 2010 while carpet laying. Her diagnosis was that the plaintiff’s lumbar region:
“Displayed significant change on MRI, like right lateral bulge of L1/2 and central bulge of L3/4 and L5/S1. His main problem remains centralised amid lumbar pain on movement, particularly extension and lateral flexion”[6]
[6]PCB 44
Ms Mahanama believed that:
“The onset of acute pain was directly related to the injury that Brien sustained at work on 12 November 2010. The joint degeneration and bony changes in his lower back seen on the CT scan are not likely to have been sustained in that single episode, but, rather, from years of work as a carpet layer.”[7]
[7]PCB 44
37 With respect to the prognosis, it was that the plaintiff’s “symptoms had been very slow to improve and very easy to aggravate”. She did not expect that the plaintiff’s “condition could be fully recovered or rehabilitated, or that a decrease in his symptoms and improvement in function could be achieved.”
38 In her report of 10 May 2013, Ms Mahanama’s opinion with respect to the prospect of part-time employment for the plaintiff, was that three to four hours a day, three times a week with restrictions, would be advisable at the beginning. If the plaintiff progressed well, he could go up to six hours per day, five days a week.[8]
[8]PCB 49
Mr Thomas Kossmann, Orthopaedic Surgeon
39 In his report of 29 May 2014, Mr Kossmann was of the opinion that the plaintiff had suffered an exacerbation of degenerative lumbar disc disease which had resulted in persistent low back pain. There were small disc prolapses identified at L1-2 and L5-S1, and the workplace activities on 12 November 2010 caused the aggravation of his degenerative disc disease, which gave rise to his acute back pain and some sciatic symptoms.
40 As to the consequences of the injury on employment, the plaintiff was:
· Prohibited from activities which involved heavy lifting or pulling for the foreseeable future ;
· He would only be suitable for very limited jobs where he did not have to lift heavy weights or partake in any bending or twisting;
· He would be able to work on a full-time basis, provided the above limitations were not exceeded.
41 However, with respect to full-time work, Mr Kossmann was of the opinion that as the plaintiff was now 64 and without any education to pursue other occupations, apart from carpet laying, he was unlikely to find employment.[9]
[9]PCB 67
42 Mr Kossmann also considered that the plaintiff’s normal social or domestic activities were restricted due to his injury but he noted that “despite his limitations he still played his guitar and went fishing and bush walking.” The prognosis was for ongoing treatment with anti-inflammatories and analgesia.[10]
[10]PCB 67-68
Dr Nathan Serry - Psychiatrist
43 After conducting a psychiatric examination of the plaintiff, Dr Serry concluded that “Diagnostically, he had a chronic Adjustment Disorder with anxiety and depressed mood, a condition which had arisen directly as a result of his work-related back injury”.[11]
[11]PCB 61
44 With respect to the plaintiff’s work capacity on psychological grounds, he could work two to three hours a day. In terms of his prognosis, Dr Serry stated that:
“It is clear that there had been an ongoing nexus between the physical and psychiatric aspects of your client’s presentation. Should he continue to experience pain at the current levels, his prognosis would be considered somewhat guarded, as there is a degree of entrenchment in his symptoms and, on balance, he would anticipate any substantial change in the clinical presentation over time.”[12]
[12]PCB 62
Radiology
45 The MRI of the lumbar spine dated 11 May 2011, revealed a disc protrusion at L1-L2, and at L5-S1. The conclusion was:
“Conclusion: mild lumbar degenerative change and no central canal stenosis or nerve root impingement demonstrated.”[13]
[13]PCB 68a
46 The CT scan of the lumbar spine dated 12 November 2010, concluded that:
“Conclusion: “Moderate central canal narrowing at L4-L5 with mild central canal narrowing at other levels, with minor broad-based disc bulges.
Small right paracentral disc bulge at L5-S1 causing minor compression of the origin of the right S1 nerve root ? acute lesion.
No fracture or sinister process.”[14]
[14]PCB 68c
Defendants Medical Reports
Mr J Kendall Francis
47 In his report of 22 February 2011, Mr Francis was of the opinion that:
“The cause of the injury was the event that occurred in the course of the plaintiff’s work when stretching to lay carpet.[15] The event occurred on the background of multi-level degenerative disc bulges involving his lumbar spine. He believed the plaintiff would recover within the next six to eight weeks. He did not have a current work capacity.[16] He would have a better potential to return to suitable light duties by the time he was reviewed by his general practitioner in a fortnight’s time.”
[15]Defendant’s Court Book (“DCB”) 5
[16]DCB 5
Mr Boon Hong - General Surgeon
48 The defendant relied on the five reports of Mr Boon Hong. In his first report dated 7 December 2011,[17] Mr Boon Hong concluded that, as a result of constant laying of carpets and falling over in November 2010, the plaintiff sustained muscular spasm and a muscular injury to his right lower back on top of the multiple disc prolapse and degenerative changes to his lumbar spine. His main problem was muscular pain. Added to this, he was suffering from a depressive illness. The plaintiff could return to light duties. However, in view of his depressive state, it was difficult to say how long before he could return to these.[18]
[17]DCB 9
[18]DCB 9
49 On 12 September 2012, Mr Hong Boon reported that since the last examination on 7 December 2011, the plaintiff had made a slight improvement in his lumbar back movements. The most difficult problem was finding alternative work, which was very difficult for him at 61 years of age as there were not many alternative positions available for him. The plaintiff could do light duties without heavy lifting, which would aggravate his back pain. He told Mr Hong Boon that he was keen to find alternative employment and, after taking up so many different courses, it was difficult for him to find employment.[19]
[19]DCB 11
50 In his report of 26 September 2012, Mr Hong Boon stated that the plaintiff could go back to full-time modified pre-injury duties and any work that did not involve repetitive bending involving his lumbar back or heavy lifting. If the plaintiff could find work in computers or bar tending work, he could work full-time without restrictions, apart from repetitive bending or lifting.[20]
[20]DCB 14
51 In his report of 3 July 2013, Mr Hong Boon was of the opinion that the plaintiff could do light duties without involvement of repetitive bending of the back or lifting. However, he considered that that the prognosis of him returning to his pre-injury duties was poor mainly due to his age and condition.[21]
[21]DCB 16
Dr Timothy Entwisle, Consultant Psychiatrist
52 In his psychiatric report dated 6 March 2012,[22] Dr Entwisle diagnosed the plaintiff as having an Adjustment Disorder with depressed and anxious mood in partial remission with treatment. The condition was work-caused[23] and the plaintiff’s treatment had been appropriate. He had attended his general practitioner who had treated him with anti-depressant medication.
[22]DCB 22
[23]DCB 25
53 The plaintiff had reported an improved level of emotional functioning and Mr Entwisle was of the opinion that, from a psychiatric perspective alone, he would have a capacity for his pre-injury duties and hours, modified duties or suitable duties.[24]
[24]DCB 26
Identification of the Injury
54 I am satisfied that during the course of his employment as a carpet layer and in particular, on 12 November 2012, the plaintiff suffered an acute exacerbation/aggravation of his underlying degenerative disc disease.
55 This finding is supported by the majority of medical experts as follows:
· Dr Verhoef – the history given of the plaintiff’s injury, symptoms and treatment;
· Mr D’Urso – workplace activity on 12 November caused aggravation of degenerative disc disease, acute back pain and sciatic symptoms;[25]
[25]PCB 42
· Mr Kossmann – exacerbation/aggravation of degenerative lumbar disc disease by workplace activities 12 November 2010, which gave rise to his back pain and some sciatic symptoms;[26]
[26]PCB 66
· Ms Mahanama – the onset of acute pain was directly related to the injury Brian sustained at work on 12 November 2010. The joint degeneration and bony changes in his lower back seen on CT scan are not likely to have been sustained in that single episode, and rather from years of work as a carpet layer.[27]
[27]PCB 44
· Mr Francis – the cause of the worker’s injury was the event that occurred in the course of his work when stretching to lay carpets with a background of multi-level degenerative disc bulges involving the lumbar spine;[28]
· Mr Boon Hong – Mr Ward is suffering from chronic lower back pain as a result of disc prolapse at the L5-S1 region, which was aggravated by a work injury in November 2010.[29]
[28]DCB 5
[29]DCB 16
56 This finding is also supported by the radiology, which revealed degenerative change in the lumbar spine with small disc prolapses at L5-S1and L3-L4 with no nerve compression in either case.
57 I do not accept the defendant’s contention that the exacerbation/aggravation has since resolved, as I accept that the plaintiff continues to suffer from episodes of back pain which are related to his repetitive activity as a full-time carpet layer and in particular to the incident on 12 November 2010.
58 In making this finding, I have taken into account that although he had a degenerative lumber spine prior to the 12 November 2010, the plaintiff’s condition was asymptomatic. It was only after this incident that the plaintiff experienced back symptoms which have clearly continued to cause problems up until this time him albeit not to the same extent as in the first couple of years following the injury.
Pain and Suffering Consequences of Injury
59 However, in order to succeed with his claim for pain and suffering the plaintiff must establish that the consequences of the impairment to his back when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than significant or marked and as being at least very considerable. [30]
[30]s134AB(38)(b)
60 As this is a case where there was an aggravation of the plaintiff’s pre-existing degenerative condition, it is necessary to analyse the extent of the injury which resulted from any aggravation. An analysis must be made of the extent of the impairment of body function before and after the relevant injury. The court must not give leave unless it is satisfied that the injury is a serious injury.[31]
[31] Petkovski v Galletti[1994] 1 VR 436
61 The plaintiff’s first affidavit was sworn on 21 November 2012. In that affidavit, he referred to his life prior to sustaining his injury, as “pretty much a normal life.” He enjoyed activities such as golf and boxing, a bit of social cricket and football. He was a reasonably accomplished guitarist and drummer and enjoyed playing music.[32]
[32]PCB 29-30
62 The plaintiff claimed that after sustaining the injury his fitness had deteriorated significantly. He was unable to run for any extended period so that walking was his only exercise. He found it difficult to play his instruments for any extended period due to the pain and strain on his back which caused him a great deal of stress.
63 His relationships and social life had suffered significantly. He did not see his family and friends as much due to travel restrictions, which included distance and medication driving restrictions. He was homebound a lot and could not interact with his grandson, as he used to, in free and active play. [33]
[33]PCB 31
64 The plaintiff also claimed that he had chronic back pain and right leg pain. He found it difficult sitting or driving for prolonged periods and standing for prolonged periods. Repetitive bending, twisting or lifting also caused him difficulties, as did with the carrying out of household duties such as dishwashing, cleaning and gardening. In addition, that he had problems with sleep and he was anxious and depressed.[34]
[34]PCB 35-36
65 In the second affidavit, dated 8 September 2014, the plaintiff claimed that by and large he continued to suffer from the symptoms and restrictions referred to above. However, his anxiety and depression had improved in recent times and he was no longer taking anti-depression medication.[35] He was taking Mersyndol and some other over-the-counter painkillers, as required. He did not see a doctor very often, as they had said that there was not a lot that could be done and he has to learn to live with his disability.[36]
[35]PCB 39, paragraph 5
[36]PCB 39
66 The plaintiff has been unable to obtain any suitable paid employment in the area where he is living. He continues to do what he can to keep active. He has helped a mate on a voluntary basis with a bit of painting, and another mate put up a fence. Both jobs were light. He used to play golf, but he has not been able to play golf in recent years, which has reduced his enjoyment of life. He is still able to do a bit of fishing in the local area.[37]
[37]PCB 39
67 The plaintiff’s credit was challenged with respect to the fact that he had purchased a 28 foot fibreglass boat (the Copperhead Road) some 12 months ago with his superannuation but he had not mentioned the boat in his affidavit or to the medical experts.[38] When he was asked for an explanation as to why the boat was not mentioned in his affidavit, the plaintiff’s explanation was that no one had asked him. With reference to not informing the medical experts about his activities on the boat, he did not think that it was relevant.[39]
[38]T40
[39]T48
68 The plaintiff gave evidence that he went fishing at the end of the wharf and out on a friend’s boat sometimes. The last time he went fishing was a long time ago. He had only fished once from his boat.[40] He had not gone fishing because he found it hard to operate the boat and that is why he had to take someone with him who was an experienced fisherman.[41]
[40]T48
[41]T47
The Video
69 The court viewed some 90 minutes of film showing the plaintiff carrying out various activities on and around his boat. The defendant’s case is that the video footage is inconsistent with the plaintiff having a serious injury. [42]
[42]T42
70 The plaintiff was shown on Thursday, 28 August 2014, driving to and being on his boat, which was moored at the North Arm at Lakes Entrance on Marine Parade. The plaintiff agreed that he was seen in this video:
· Repeatedly bending and squatting tying up ropes;
· Bending forward at the waist placing unknown items on and off the boat;
· Lifting a small empty can of paint;
· Shaking a rubber mat over the side of the boat;[43]
· Climbing up a ladder, past the fly deck and fixing a small flag on the boat.[44]
[43]T44-46
[44]T54
71 The plaintiff agreed that he had spent four hours on the boat cleaning it up and tidying the ropes. While he agreed that in the video footage there was no signs of him having any restriction in the movement of his low back, he said that he had “good days and bad days”.[45]
[45]T45
72 There were three further videos of surveillance taken on 3 July 2013, 19 July 2013 and 20 February 2014. The plaintiff agreed that in the video of 3 July 2013, he was shown :
· Walking briskly along the pier or walkway attached to the marina at Lakes Entrance;
· Bending again;
· Getting in and out of his car;
· In Shrewsbury Road, Blackburn, where his sister lives, bending into his car.[46]
[46]T52
73 The plaintiff agreed that on 19 July 2013, he was shown back at the marina bending on his boat, getting off the boat and tying a tarpaulin, walking normally, carrying a blue bag, and shopping at the supermarket.
Finding Regarding Pain and Suffering
74 In comparing the plaintiff’s life prior to the injury with the situation after the injury, while I accept that his recreational and social life have been affected adversely and that on occasions he suffers from back pain, I do not consider that the consequences of the exacerbation/aggravation of his degenerative lumbar spine amount to it being a serious injury.
75 In his final report of report of 20 July 2014, Mr Boon Hong stated:
“Mr Ward has now retired from work and can manage the daily activities of living with minimum fuss. He only complains of occasional lower back pain on bad days according to him. He does not need any specific physiotherapy or analgesic tablets for his problem. He has no neurological signs detected on clinical examination to indicate any permanent injury to his lower back apart from lower back muscle pain. At 64 years of age finding alternative work is virtually impossible for him.”[47]
[47]DCB 21
76 When the plaintiff was cross-examined, he agreed that he told Mr Boon Hong that he did his own housework, cooking and gardening. He could dress and bathe and drive short distances. This is consistent with the video footage, which showed that the plaintiff was able to carry out the necessary maintenance on his boat without restrictions on bending, squatting and getting off and on the boat.
77 While the plaintiff denied that he told Mr Boon Hong that he presently experienced occasional low back pain on bad days, his evidence was that his back pain was “intermittent” and that it “happens now and then --- but some days it’ s good, some day’s it’ s bad --- some weeks it’s good, some weeks it’s bad.”[48]
[48]T34
78 With respect to the frequency of his pain, it fluctuated. Sometimes he might not have any for two weeks. Then, all of a sudden, he would wake up in the morning and it would take him sometimes half an hour, three quarters of an hour to get out of bed to operate. On those occasions, he could not bend over to put socks on. As to the intensity of his pain, the plaintiff’s evidence was that on a scale of 1 to 10 the intensity ranged from sometimes 2 out of 10, to sometimes 8 out of 10.[49]
[49]T60
79 While there is no doubt there are occasions where the plaintiff experiences severe back pain, this is not a case where he has constant pain every day. He no longer needs to take prescription medication, as he did back in November 2010, when he was taking Diazepam, Diclofenic and Panadeine Forte for his pain. Now, he takes Mersyndol (an over the counter medication) not all the time, but sometimes at night, so he could get a good night’s sleep because he woke up with pain.[50]
[50]T35
80 In making this finding, I did not draw any adverse conclusion from the plaintiff’s failure to mention his boat. The plaintiff did not attempt to hide it from view and worked on the boat with the knowledge that he would be under surveillance by the defendant. I accept that in failing to mention the boat in his affidavit and to the medical experts, the plaintiff did not consider the relevance to his case of his ability to carry out various activities on the boat.
81 These activities, while not greatly onerous or physically demanding, revealed that he was capable of carrying out tasks involving bending and squatting for a reasonable amount of time(four hours on one occasion). He was able to get off and on the boat with no apparent difficulties and was seen walking briskly. While there was other surveillance taken by the defendant which I infer would not have helped their case, the surveillance I did see was not consistent with there being a serious injury with respect to pain and suffering.
Work capacity
82 The plaintiff must establish a permanent loss of earning capacity of 40 per cent or more. The test is a comparison between the income that the worker was earning or was capable of earning during that part of the period or within three years before and three years after the injury as most fairly reflects the workers earning capacity had the injury not occurred. [51]
[51]s134AB(38)(e)
83 There is no loss of earning capacity if the plaintiff has, or would have, after retraining or rehabilitation, and taking into account the worker’s capacity for suitable employment after the injury and the reasonableness of the workers attempts to participate in any retraining or rehabilitation, a capacity for any employment, including alternative employment, which, if exercised, would result in him earning more than 60 per cent of his gross income had the injury not occurred.[52]
[52]s134AB38(g)
84 Suitable employment, in relation to a worker, means employment in work for which the worker is currently suited. It is necessary for the court to determine whether suitable employment exists, to analyse the employment requirements from a physical and if necessary psychological aspect, and to apply the relevant matters as set out in the definition of suitable employment in section 5 of the Act.[53]
[53]See Angelo Manthopoulos v Spencewill Nominees Pty Ltd [2012] VMC 15.
85 While the defendant concedes that the plaintiff can no longer perform his pre-injury work it was submitted in essence that he has a “light work back” and that there are suitable employment options open to him. However, that the plaintiff has no motivation to return to the workforce and has consequently made no genuine attempts to get a job. Instead, the plaintiff has effectively been living the lifestyle of a retired person.
86 With respect to the plaintiff’s capacity for light work the defendant relies on the medical opinions of Dr Baker, Mr Francis and Mr Boon Hong. While regarding suitable employment options for him they rely on the NES Vocational Assessment Report dated 23 May 2011 and the 130 Week Vocational Assessment Report of Work Focus Australia dated 7 December 2012.
87 Based on the plaintiff’s employment history, education, transferable skills and medical restrictions the NES Vocational Assessment Report identified the following jobs as being suitable:
·Sales assistant;
·Forklift driver;
·Store clerk; and
·Courier.[54]
[54]DCB 35
130 week vocational assessment report of WorkFocus.
88 The 130 Week Vocational Assessment Report of 7 December 2012[55] identified the following jobs as being suitable:
·Packer;
·Product assembler;
·Enquiry clerk;
·Sales assistant.
[55]DCB 41
89 The case for the plaintiff, however, is that the plaintiff has no work capacity and that in reality, at his age and with his restrictions, no one will give him a job.
90 In this respect the plaintiff relied on Mr Kossmann who accepted that the plaintiff had the physical capacity to work full time in very limited jobs where he did not have to lift heavy weights or partake in any bending or twisting. However, he did not have the skills for any other occupation and at his age it was unlikely that he would obtain employment. [56]
[56] PCB 67
91 In addition, the plaintiff relied on Dr Verhoef who was of the opinion that due to the plaintiff’s work restrictions (no lifting of weights greater than 10 kg, repeated lifting, bending, pushing, pulling and twisting) he was restricted to office type work for which he had no training .[57]
[57] PCB55-54
92 The plaintiff also relies on two vocational assessments. One from Ms Suzanne George, of Evidex,[58] dated 31 March 2014, and a second one from Ms Diane Forster, of Flexi Personnel, dated 22 August 2014.[59]
[58] PCB 69
[59] PCB 87
93 Ms Suzanne George disagreed with the WorkFocus Assessment that the plaintiff had the capacity to work as a packer, product assembler, enquiry clerk and sales assistant. In her opinion, these jobs were all beyond his physical capacity and with the enquiry clerk job the plaintiff lacked sufficient computer skills.
94 In addition, Ms George considered that the plaintiff’s reduced functional capacity and, where relevant, lack of computer skills, meant that he could not work as a mail clerk, navy sailor, production manager, bar attendant, barista, kitchen hand, industrial hire sales assistant, service station console operator, records clerk, food process worker, fruit and vegetable packer and commercial cleaner.
95 With respect to the provision of occupational rehabilitation and/or training, Ms George considered that extensive retraining would be required to qualify the plaintiff for a new occupation within his limited functional capacity. Due to his physical limitations, lack of computer skills and age, it was unlikely that it would lead to a suitable recognised occupation in the open labour market.[60]
[60] PCB79
96 Ms Forster’s opinion, in her report of 22 August 2013, was that, considering all the negative factors, together with recruitment perspective, the plaintiff would struggle to find an employer willing to offer him suitable employment which would be economically self-sustaining on a full-time or part-time basis. His lower back injury alone would hamper his return to work prospects, along with his depressive symptoms.[61]
[61] PCB96
Finding
97 I accept that the plaintiff cannot perform his pre-injury duties as a carpet layer or, indeed, any work of a heavy nature or involving repetitive bending, twisting and lifting activities.
98 However, I accept the medical opinion that, from a physical perspective, the plaintiff is capable of full-time light work, that is, work not involving the above mentioned activities. This finding is supported by:
99 Mr D’Urso - the plaintiff could not return to work as a carpet layer and was better suited to a lighter occupation where he could avoid repetitive bending, twisting, and lifting activities.
100 Dr Verhoef –the plaintiff was restricted to office type work commencing 4 hours per day three days a week alternative days gradually increasing to full time.
101 Mr Boon Hong - the plaintiff was capable of jobs which did not involve heavy lifting repetitive bending involving his back muscles.
102 Mr Kossmann – the plaintiff could work full time in very limited jobs.
103 This finding is also supported by the level of activity demonstrated by the plaintiff on his boat. In particular his activities on 28 August 2014 where he was seen on video footage repeatedly bending and squatting. In addition by the video footage of 3 July and 19 July 2013 where he was seen walking normally with no restrictions and bending on the boat again with no apparent restrictions.
104 The plaintiff himself thought that he could probably work four hours a day every alternative day or “probably six to eight hours a day every alternative day”. [62] However, he was not confident that he could present for work reliably and as required because he did not know when his back was going to be aching. In addition, he did not know of any job he could get with these hours at his age.
[62]T61
105 When he was cross-examined about his efforts to find a job, his evidence was that his case manager at Work Focus had applied for jobs through Work Focus for him.[63] As to his own efforts, the plaintiff’s evidence was that he had tried to get a job in Lakes Entrance by word of mouth, but there was no work in Lakes Entrance.[64]
[63]T26
[64]T27
106 However, the plaintiff agreed that he was not registered with Centrelink at Lakes Entrance and that he had not looked for a job in Bairnsdale.[65] When it was suggested to him that he had no need to get a job as he was on a navy pension he said
“Well,…the prospects of getting a job are very hard so there’s no work up there anyway so I haven’t been looking for work, no. I have to do it hard.”[66]
[65]T56
[66]T56
107 I accept that the plaintiff has essentially given up with respect to work and that he has not made any real efforts to find a job. I accept that he has settled into his life as a retiree at Lakes Entrance. This decision in all likelihood being influenced not only by his physical injury but also by his psychological issues, the availability of the navy pension and his age.
108 While I accept that the plaintiff’s age and restrictions provide a significant barrier to him actually obtaining employment I am satisfied that he has the capacity to perform a number of the jobs suggested as being suitable employment by the defendant. In particular, I am satisfied that he could perform light work as a packer, process worker, sales assistant and store clerk.
109 In making this finding in addition to the medical opinions that the plaintiff has the physical capacity to perform light work I have taken into account that his literacy skills are good, he has no problems with the English language, a licence in the responsible serving of alcohol, a certificate in a barista course, a food handling certificate, some computer skills and a very good work history
110 Given the finding that the plaintiff has such a capacity it is then necessary to calculate whether he would earn in excess of 60 per cent of his pre-injury income in any of these jobs.
111 However, before undertaking this exercise it is necessary to determine whether the plaintiff’s pre-injury income is his income with or without the expenses related to generating that income.
112 In Alter v Alcon Laboratories [2008] VCC 713 at [80], Judge Misso gave consideration to the interpretation of the phrase “gross income from personal exertion,” from section 6(2) Transport Accident Act 1986 (Vic), concluding that the only interpretation appropriate was to calculate gross income from personal exertion without deducting expenses related to generating that income.
113 Among the reasons for reaching this conclusion, Judge Misso concluded that it was an appropriate construction so as not to discriminate between gross proceeds of business and net proceeds of business, and in addition, that this construction gave the phrase its plain and ordinary meaning.
114 I consider it appropriate to apply the same reasoning to the present income calculations of the plaintiff. In doing so, I would not discriminate against individuals and sole traders whose gross income may be related to earning expenses that vary dramatically. Therefore, the income of the plaintiff during the financial year ended 30 June 2010 can be calculated as the gross amount of $63,500.
115 In figures provided by the plaintiff, his without injury earning capacity based on $63,500 gross per year was $1,334.38 per week 60 per cent of which on the plaintiffs calculations allowing for a CPI 3% increase for three years was $800.63. Without allowing for such an increase the 60% figure is $733 .
116 Accepting the higher figure of $800.63 the plaintiff would earn more than 60 per cent of his without injury income working as a stock clerk($1,067), process worker job ($894),sales assistant ($908) and as a packer ($819).
117 Ms Mahananama considered that the plaintiff could undertake light work to the extent of six hours per day, five days a week, totalling 30 hours per week. If he was to work 6 hours per day 5 days per week, he would earn more than 60% of his without injury income working as a stock clerk.
118 The plaintiff has failed to establish that a permanent loss of earning capacity of 40% or more.
FINDING REGARDING SERIOUS INJURY
119 The plaintiff has been unable to satisfy me that he incurred a serious injury within the meaning of section 134AB(16)(b) Accident Compensation Act 1985 (VIC). Accordingly, I refuse the application to commence proceedings against the defendant for damages in respect of pain and suffering and pecuniary loss related to the injury sustained by the plaintiff in the course of employment with the defendant.
0
0
0