Yildiz v VWA
[2018] VCC 1434
•13 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-00546
| BARIS YILDIZ | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2018 | |
DATE OF JUDGMENT: | 13 September 2018 | |
CASE MAY BE CITED AS: | Yildiz v VWA | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1434 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – Injury to lumbar spine – pain and suffering – loss of earning capacity – residual work capacity
Legislation Cited: Accident Compensation Act 1985 (Vic)
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr C Sidebottom | Ryan Carlisle Thomas |
| For the Defendant | Ms M Britbart QC with Ms N Crowe | Hall & Wilcox |
HER HONOUR:
1 Mr Yildiz (the plaintiff) applies under s 134AB(16)(b) of the Accident Compensation Act1985 (Vic) for leave to issue proceedings for the recovery of damages for pain and suffering and economic loss in respect of a permanent serious impairment or loss of body function of the lumbar spine arising from an injury at work on 26 November 2013. On that day, whilst working in his capacity as a geotechnical engineer, he attended a work site in Elwood to complete an inspection and a soil density test, slipped on uneven ground and jarred his lumbar spine. He sought medical attention. Radiological investigations in late 2013 and early 2014 showed a large focal L5/S1 disc extrusion with compression of the left S1 nerve root sheath. He sought three neurosurgical opinions, decided to manage with conservative treatment and had a number of epidural injections, and foraminal injections up until April 2015. He also had extensive physiotherapy. He continued to experience symptoms and consulted a different neurosurgeon, Mr Craig Timms in November 2015, who suggested fusion surgery at L4/5 and L5/S1 levels, but the insurer refused to fund it. The plaintiff has suffered chronic pain since the incident, takes considerable amounts of daily analgesic medication, and has extensive functional limitations. He returned to work on part-time light duties in May 2014 but was unable to manage any substantial increase in working hours beyond 9 hours per week and his employment was terminated in March 2015.
2 The plaintiff says that due to his pain and restrictions he is at best able to work a maximum of 12 hours per week (which is what he was doing before his employment was terminated) but that, realistically speaking, he is permanently incapacitated for all employment.
3 The defendant does not dispute that the pain and suffering consequences of the plaintiff’s lumbar spine injury meet the test for serious injury. The defendant says, however, that the L5/S1 disc protrusion diagnosed in late 2013 and early 2014 has largely resorbed and that there is no current evidence of radiculopathy. Further, the plaintiff has demonstrated on examination some non-organic factors which suggest that there is a psychological component to his current presentation which contributes to his perceived complete inability to work. The defendant concedes that the plaintiff cannot return to his pre-injury duties but says that he is well-educated, intelligent, has a range of skills and is physically capable of working part-time as an interpreter or private tutor (in maths or science). For this reason, the defendant says that the plaintiff has failed to establish that his lumbar spine impairment, taken alone, has resulted in a permanent 40% loss of earning capacity.
4 The plaintiff is now 44 years old, married with two young children. He was born in Turkey and moved to Australia with his family at the age of 11. He completed Year 12, commenced a Civil Engineering Degree at Monash University, initially full-time, but then transferred to Victoria University so that he could work part-time in various factory jobs. It took him 11 or 12 years to complete the degree. He became addicted to heroin in his 20’s, but managed to keep working. He then went on Methodone and, apart from an occasional relapse, was able to maintain employment. He commenced employment with the defendant in 2006 and worked there full-time until his injury.
5 At the time he sustained his back injury on 26 November 2013, the plaintiff felt some back pain but tried to complete his shift. By the evening he felt stiff and by the next day he had significant lower back pain radiating into his left leg. A few days later he saw his doctor, had some investigations, and was prescribed anti-inflammatory and analgesic medication. He was off work for about 5 or 6 months, taking Oxycontin and using Durogesic patches, but struggled to stand or sit for long periods.
6 By January 2014, he developed a left sided foot drop. He presented at a hospital emergency department, and had an MRI scan on 10 January 2014 which was reported[1] with the following conclusion:
Large focal left-sided L5-S1 disc extrusion with sequestration into the left lateral recess of S1 compressing the proximal left S1 nerve root sheath. It is very likely that this lesion is responsible for the patient's symptoms.
[1] Plaintiff’s Court Book (PCB) 121-122
7 He saw a neurosurgeon, Mr Alex Aliashkevich, on 15 January 2014. At that time, the neurosurgeon found[2] there was muscular weakness and refractory pain along the S1 distribution. He diagnosed compression of the S1 nerve root and recommended surgical decompression. The plaintiff opted for conservative management.
[2] See letter to Dr Van Rheede dated 15 January 2014 at PCB 43
8 The plaintiff attended approximately 15 sessions of physiotherapy over two months from 20 February 2014. He struggled to get back to work, and struggled to manage even restricted duties. He took a period of long service leave in late 2014, but even after that break found he could not manage at work, in spite of taking a large number of painkillers.
9 By early 2015, he had become frustrated with his pain and he consulted a neurosurgeon, Mr Paul Smith, who recommended an epidural steroid injection and arranged for further MRI scans.
10 MRI of the lumbar spine on 4 March 2015[3] was reported with the following conclusions:
Degenerative changes involve the lumbar discs particularly so at L4-5. I am not convinced there is nerve root impingement although if L5 symptoms are present then potentially as the descending nerve root is contacted by disc just after it buds from the thecal sac this may be relevant. Potentially of more significance is the small annular tear associated with a disc bulge posterolaterally to the left at L5-S1 directly over the descending S1 nerve root. Potentially this may be a site of impingement. The disc bulge seen here previously has improved considerably
[3] PCB 123-124
11 Mr Smith noted[4] that the second MRI showed “a significant amount of resorption of the L5-S1 disc protrusion, but not completely and there is a clearcut annular tear underneath the S1 nerve root at the L5-S1 level”. He felt it was possible that this tear was causing ongoing irritation.
[4] See letter to Dr Van Rheede dated 15 April 2015 at PCB 46
12 On 5 November 2015, the plaintiff saw another neurosurgeon, Mr Craig Timms, on referral from his general practitioner. The plaintiff continued with physiotherapy treatment and also attended a psychologist for management of his anxiety and depression. During 2015, he attempted to undertake an online business administration course but was unable to complete it due to his back problems and depression.
13 As at 13 September 2017, when he swore his first affidavit in support of his application[5], the plaintiff remained off work and in receipt of a Newstart Allowance from Centrelink. His family was living with his mother. He had recommenced an online business administration course. He continued to suffer daily back pain, which was worsened by physical activity or prolonged sitting or standing, as well as sciatic pain in his left buttock, leg and foot, and numbness and weakness in the left foot. He was taking Methadone and Lyrica daily to manage his pain, and Tramadol to manage severe flare ups. At night he was taking Endep and Temazepam to help him sleep. The impact of those medications was that he also suffered gastric reflux and was taking Nexium to manage those symptoms. He was also taking anti-depressants. He was being woken by pain multiple times each night, and had taken to sleeping separately from his wife. He had trouble putting on his shoes and socks and sometimes needed his wife to help him. His back injury prevented him from having sexual relations with his wife. He could not do tasks that involve bending, squatting or reaching overhead, and he could not travel long distances in a car or plane. His mother was mowing the lawns and, with his wife, was doing most of the cleaning. Prior to his back injury, he played billiards regularly with friends, played soccer and did maintenance work around the house. He could not think of any employment that he could undertake on a consistent and reliable basis.
[5] PCB 1
14 In his further affidavit, sworn on 7 August 2018[6], the plaintiff stated that the condition in relation to his back remains the same, but that his psychological state has deteriorated somewhat. He is again undertaking an online Business Administration Course (Certificate III), but is only able to manage an hour of study three or four days of the week. His concentration is poor due to his chronic pain and the medication he takes for it. He continues to suffer ongoing back pain and sciatica and has very limited sitting, standing and walking tolerances. His treating neurosurgeon, Mr Timms, offered to perform a two level spinal fusion but the insurer rejected liability for it. The plaintiff spends most of his time at home. He cannot play with his children. His sleep continues to be disrupted. He takes 70 mg of Methadone and 75 mg of Lyrica each day, 200 mg of Tramadol each night, Celebrex each day, and 4 Panadol tablets per day. He takes drugs to help him sleep, as well as antidepressants. He continues to have fortnightly physiotherapy and does daily exercises recommended by his physiotherapist.
[6] PCB 13
15 At the hearing, the plaintiff said in cross-examination that after sustaining his back injury, he was off work until May 2014, when he returned to work on light duties a few hours, two days per week. He agreed that for a while, prior to his employment being terminated, he was able to increase his hours to three to four hours, 2 days per week. After his employment was terminated, he attended a number of job agencies and cooperated with them, applying for various jobs in customer service, for example, but did not feel that he could undertake them. Due to his reduced physical tolerances, he struggled to keep up with the requirement that he spend 20 hours per week searching for employment as a condition of receiving Centrelink payments. He struggled to keep track of his appointments, and, due to pain, to attend them. In January 2018, he decided to forgo Centrelink payments altogether so that he no longer has to force himself to meet those requirements. The plaintiff said that his wife continues to receive Centrelink payments, his mother helps them out, and they have taken funds out of their mortgage account to survive.
16 The plaintiff said that he has difficulty accomplishing his activities of daily living; that he is physically unable to do any work as a laboratory technician because of the lifting involved. He said that he would be unable to undertake project management or supervisory work because of the requirement to attend sites, to drive distances, or to maintain himself throughout the day. As to the possibility of working as an interpreter or translator, he said that he only has high school Turkish, and that he is unsure whether he is qualified to do such work. He agreed that, in theory, he might be able to tutor students in maths and science subjects, but said that he has tried tutoring his own children for one hour each week but cannot manage it, as he does not know how he will feel from day to day and his memory is poor. On one occasion when he tried tutoring them, he could not recall how to do long division. He said that he is incapable of working two to three hours per day in some home-based employment, and is incapable of keeping up the search for employment.
17 The plaintiff’s wife, Nathalie Jean-Pierre Yildiz, stated in her affidavit[7] that, prior to suffering his back injury, the plaintiff had overcome his addiction, worked full- time, was a good father who played with his children, was very social (playing regular snooker and billiards with friends as well as soccer and tennis), mowed the lawns and shared the household chores and maintenance. The family lived with the plaintiff’s mother for financial reasons, but intended to move into their own home once their financial situation had stabilised. Since suffering the back injury, the plaintiff is in pain, spends much of his time in his room, does not play with his children, cannot sit or stand for long periods without pain, takes medication and suffers from disturbed sleep. The couple no longer have intimate physical relations. The plaintiff needs help with putting on his shoes and socks, no longer does any household chores or maintenance, is depressed and socially withdrawn from family and friends.
[7] Sworn on 7 August 2018 at PCB 22
Reports of treating doctors and physiotherapist
18 On 7 November 2016, Mr Timms reported[8] that the plaintiff was suffering from back pain, left leg sciatica, left leg weakness and sensory disturbance. Mr Timms diagnosed disc injuries at L4/5 and L5/S1. He concluded that it was likely that he would continue to suffer chronic back pain and intermittent sciatica that was likely to keep him completely incapacitated for employment.
[8] PCB 48
19 MRI of lumbosacral spine on 22 September 2017[9] was reported as showing “mild broadbased disc bulges L4/5 and L5/S1, at L5/S1 contacting the proximal traversing bilateral S1 nerve roots.”
[9] PCB 127-128
20 On 11 December 2017, Mr Timms reviewed the plaintiff. He reported that the third MRI scan revealed “severe disc injury with Modic changes at L4-5 and L5-S1,” which he felt had “worsened since our last imaging resulting in foraminal stenosis.” Mr Timms felt that this was most likely the cause of the plaintiff’s symptoms. He considered that there continued to be an organic basis for the plaintiff’s ongoing pain and restrictions, that he was currently totally incapacitated for employment, likely to suffer chronic back pain and bilateral sciatica permanently, and was therefore likely to be permanently incapacitated for all employment.
21 The plaintiff’s treating general practitioner, Dr Van Rheede, provided 4 reports to the plaintiff’s solicitors. On 24 March 2015[10], he considered that the plaintiff’s treatment options had not yet been fully exhausted, but that his return to full duties had been rushed. On 15 March 2016, Dr Van Rheede noted[11] that the plaintiff had undergone a number of steroid injections which had failed to relieve his pain and that, in spite of his best efforts, he was not able to manage more than a few hours on one or two days per week during the return to work program. At that point, surgery was being considered. On 2 October 2017, Dr Van Rheede opined[12] that the plaintiff was permanently unfit for his pre-injury duties but could be capable of doing administrative work where he could alternate between sitting and standing, and had to walk only on even surfaces, for limited hours on a trial basis.
[10] PCB 24
[11] PCB 26
[12] PCB 27
22 On 16 April 2018, Dr Van Rheede reported that the plaintiff walked with a limp due to the weakness in his left leg, continued to experience daily pain requiring daily consumption of strong analgesics, and the medication in turn affected his motivation, concentration and stamina. His social life had ceased, he finds walking too tiring and painful, and does very little on a daily basis. He continues to have regular physiotherapy and psychotherapy. He concluded[13]:
The disc injuries have stabilised and the pain associated with them too. The pain consists of localised mechanical pain which is associated with the area of damage and scarring. Part of the pain will be different and associated with nerve damage and irritation – this is usually more severe and of a different nature and may require different pain killing strategies. The intensity will vary from time to time and osteoarthritis has formed which is part of the scarring/stabilisation process. The natural course of the osteoarthritis is that it will cause pain and stiffness which will vary from time to time, but will gradually deteriorate over time and with ageing.
[13] PCB 30
23 In relation to work capacity, Dr Van Rheede noted[14] that the plaintiff was unfit for his pre-injury duties due to his pain and functional restrictions. In relation to any residual work capacity, Dr Van Rheede noted that the plaintiff could “theoretically”[15] function in a sedentary environment where he could sit and stand at will, but that he could not travel on public transport nor drive long distances, and that his ability to concentrate for periods was questionable given the sedating effect of his analgesic mediations. Dr Van Rheede concluded that any suitable employment would need to be home-based with an adaptive time schedule, so that the plaintiff could function within his limitations.
[14] PCB 29
[15] PCB 29
24 Mr Jonathan Bell, physiotherapist, reported on 28 May 2018[16] that he has treated the plaintiff regularly since May 2014, and that in August 2014 the plaintiff increased his hours to 6 hours per day of light duties but was only managing two days per week at work and finding it difficult to travel to and from work. In early 2015, the plaintiff indicated that he still could not manage more than two consecutive days per week of work. Mr Bell stated that, in spite of an active physiotherapy treatment regime, the plaintiff had been unable to increase his hours on light duties. Mr Bell concluded that due to the physical injury to the lumbar spine, the plaintiff was permanently incapacitated for his pre-injury duties and, given his limited sitting and standing tolerances, has no capacity to perform suitable employment.
[16] PCB 31
Plaintiff’s medico-legal reports
25 Mr Paul D’Urso, neurologist, provided a report to the plaintiff’s solicitors[17] dated 11 October 2017 in which he noted that the plaintiff’s lumbosacral disc prolapse contributed to the development of a permanent incapacity of a partial nature. Mr D’Urso commented that the plaintiff has no capacity for pre-injury employment at the time or into the foreseeable future, but that he would appear to have capacity for part-time light suitable employment. He suspected the plaintiff would require quite intensive vocational retraining and assistance to find suitable employment and noted the plaintiff’s inability to perform arduous domestic, cleaning, gardening and vigorous recreational sporting activities.
[17] PCB 52
26 Mr Rodney Simm, orthopaedic surgeon, reported to plaintiff’s solicitors on 16 November 2017[18] that, on examination, there were no objective clinical signs of radiculopathy, that the plaintiff was not over-reactive, but that Waddell’s vertex compression sign was positive and that Waddell’s simulated pelvic rotation sign was weakly positive. He considered that the MRI dated 22 September 2017 revealed, at L5/S1, degenerative changes with a broadbased disc bulge contacting but was unlikely to compress the descending nerve roots. He diagnosed unresolved aggravation of lumbar disc degeneration “complicated by the development of a chronic spinal pain syndrome and an associated emotional disturbance”[19]. Mr Simm considered that the ongoing, organic back pain, is “essentially axial pain”, which contributes to the plaintiff’s restrictions on function[20]. He opined that, as a result of the painful spinal injury, the plaintiff had developed a chronic pain syndrome, in which his organic pain was being “generated, perpetuated and amplified by factors which are independent of the lumbar spine pathology”[21]. Mr Simm considered that there was a substantial loss of function and associated impairment resulting from the injury to the lumbar spine but that, in the light of his presentation the plaintiff had no realistic work capacity due to his chronic spinal pain syndrome. Mr Simm felt that the plaintiff should be managed conservatively with formal pain management.
[18] PCB 111
[19] PCB 117
[20] PCB 117
[21] PCB 118
27 Dr Joseph Slesenger, occupational physician, provided a letter to the plaintiff’s solicitors[22] on 29 November 2017 and recorded the plaintiff’s history of ongoing pain for four years with left radicular features. Dr Slesenger considered that the manual handling and postural requirements of the plaintiff’s pre-injury duties precluded him from retaining a capacity to return to those duties. Dr Slesenger concluded that in regard to his lumbar spinal impairment, the plaintiff had residual restrictions and should avoid lifting more than 5 kgs, maintaining static or awkward postures, or being exposed to whole body vibration. Dr Slesenger noted that the plaintiff’s age, residential location, past occupational experience, current symptoms, functional limitations, medication side effects (including fatigue), qualifications and computer skills militated against his returning to work in a role for which he has suitable training and experience.
[22] PCB 56
28 On 8 June 2018, Dr Slesenger provided[23] an updated report in which he noted that the plaintiff’s symptoms have not changed. The plaintiff reported ongoing back pain and left leg pain at a severe level between 7 and 9/10, which is aggravated by activity, and is then accompanied by shooting pain down the left side. His pain is such that on four to five days per week he does not go out. On some days he walks outdoors a little. He has intermittent urinary urgency. He can take care of his personal care needs but needs help with shoes and socks. He has ongoing sleep problems and wakes at night. He is having physiotherapy and sees a psychologist on a monthly basis. He can drive for up to 20 minutes.
[23] PCB 68-81
29 Dr Slesenger noted on examination that there continued to be a severe restriction to the range of lumbosacral spinal movements, with some significant non-organic features. He diagnosed a work-related mechanical injury to the lumbar spine with aggravation of degenerative disease of the lumbar spine with left radicular features, although he noted that the evidence of radiculopathy is equivocal. He noted that the plaintiff suffered from medication side effects. He felt that there was a psychogenic element to the plaintiff’s presentation. Dr Slesenger repeated the restrictions outlined in his previous report. He concluded that the plaintiff was permanently incapacitated for his pre-injury duties and was unlikely to be able to return to work performing suitable alternative duties on a consistent and reliable basis[24]. He felt that if the plaintiff completed a pain management program he might be assisted to rationalise his use of pain medication and improve his domestic capacity.
[24] PCB 80
Defendant’s medico-legal reports
30 Dr Gary Davison, occupational physician, reported to the defendant’s solicitors on 11 March 2016[25] that, on examination, the plaintiff presented with “moderate pain behaviours”[26] such as vocalisation, grimacing and clutching of affected areas. He noted that Waddell’s signs were positive only for apparent spinal movement. He noted that all other Waddell’s signs were negative and did not regard the increased pain with apparent spinal movement to be “of any clinical significance”[27]. On direct examination, the range of active movement of the thoracolumbar spine was globally restricted. Dr Davison noted there was 2 centimetres of wasting in the left thigh and muscle power was diminished throughout the left lower limb[28]. There was subjective alteration in sensation in the left leg between the knee and ankle, in a non-anatomical distribution[29]. He considered that the plaintiff’s symptoms were consistent with the MRI scan findings in January 2014, and consistent with the reduction in the size of the protrusion as noted on the later MRI, which, Dr Davison considered, revealed ongoing potential impingement of the S1 nerve root. Dr Davison noted that the plaintiff actively participated in the return to work plan but considered that the return to work plan was not suitable for him because it envisaged a return to full-time pre-injury duties over a five week period from December 2014, and required the plaintiff to lift weights up to 5 kgs, to sit for extended periods and to negotiate uneven surfaces on site. Dr Davison considered that the plaintiff was permanently incapacitated for full-time employment.
[25] Defendant’s Court Book (DCB) 37
[26] DCB 41
[27] DCB 43
[28] DCB 41
[29] DCB 42
31 Mr Michael Dooley, orthopaedic surgeon, reported to the defendant’s solicitors[30] on 4 August 2016 that in his view, the constancy and intensity of the plaintiff’s ongoing pain and his self-reported disability, were greater than one would expect to see given the plaintiff’s organic condition[31]. Mr Dooley noted that while the plaintiff clearly has degenerative disc disease at multiple levels of the lumbar spine, the radiological investigations conducted in 2015 showed that the large left sided lumbosacral disc prolapse had resolved in time. Mr Dooley opined that, clinically, there were no objective neurological deficits affecting the left lower limb and that the inconsistent signs elicited on the plaintiff’s clinical examination were attributable to a psychological reaction to the present situation that has affected the plaintiff’s ongoing symptomatology.
[30] DCB 52-57
[31] DCB 54
32 In response to a question posed by the defendant’s solicitors, Mr Dooley was of the view that the plaintiff would not be able to return to heavy physical work, as well as any type of work that involved a lot of bending, lifting and manoeuvring. He considered that the plaintiff would be able to return to a range of light physical and clerical type work in the future, but that any return to work would need to be on a graduated basis[32].
[32] DCB 56
33 Dr David Barton, consultant occupational physician, provided a report to the defendant’s solicitors[33] dated 23 January 2018 and noted that while the plaintiff may have had some initial back symptoms related to the work injury, the physical basis for his complaints had since ceased to be relevant and the plaintiff now presented with a chronic pain problem with a degree of functional overlay. Dr Barton considered that the plaintiff’s reported pain and restrictions were inconsistent with the expected clinical course of the work injury and that Mr Yildiz presented with virtually all of the Waddell’s signs that have been published. Dr Barton noted that the plaintiff’s strong illness belief and functional overlay suggested his prognosis was guarded but that, from a purely physical perspective, Mr Yildiz had a capacity to perform the physical requirements of his pre-injury duties and hours in an alternative setting.
[33] DCB 58-63
34 Dr Barton provided a supplementary report to the defendant’s solicitors[34] dated 25 May 2018 in which he reiterated his diagnosis of a mild musculoskeletal problem that has been complicated by a degree of illness behaviour. Dr Barton did not consider that the history of symptoms and radiological findings were consistent with a straightforward physical injury as a result of the work injury but instead confirmed his initial findings on examination of a chronic pain problem with a strong functional element. Once again, Dr Barton did not resile from his belief that the plaintiff would be able to physically perform his pre-injury duties and did not consider there would be any physical reason why Mr Yildiz could not perform the jobs identified in a Co-Work vocational report[35].
[34] DCB 64-67
[35] The content of this report is discussed at [36] below
Vocational assessments
35 A vocational assessment dated 23 May 2018 by Holly Ross, occupational therapist, was provided to the defendant’s solicitors[36]. Ms Ross noted that medical opinion in 2015 indicated that the plaintiff was capable of part-time light duties. Ms Ross opined that “further medical review would assist in providing a current assessment of his work capacity and restrictions”[37]. It is noteworthy that Ms Ross was not provided with the more recent medical reports nor any of the medico-legal reports although she attached a Certificate of Capacity from Dr Van Rheede dated 12 April 2018 which indicated that he had no work capacity for a period of one month. The report is therefore of little assistance in determining, as at the date of the hearing, the extent, if any, of the plaintiff’s residual work capacity. I note, however, that Ms Ross, subject to clarification of the plaintiff’s physical capacity in updated medical opinion, identified the following suitable employment options: civil project engineer, project engineer, quantity surveyor, project manager, laboratory technician, Turkish interpreter, copy editor, and private tutor (maths or science).
[36] DCB 81
[37] DCB 82
36 Ms Ross was provided with the medico-legal report of Dr David Barton dated 25 May 2018 and then produced a supplementary report dated 13 June 2018.[38] She noted Dr Barton’s conclusions, and concluded that, subject to the proposed employment options being endorsed by the plaintiff’s treating doctor, the plaintiff had the capacity to undertake employment as a civil engineer, project manager, laboratory technician, Turkish interpreter and private tutor (maths or science).
[38] DCB 125-126
37 I note that the defendant indicated at the hearing that it does not rely on Dr Barton’s reports insofar as they suggest the plaintiff could return to his pre-injury duties and hours. For this reason, I consider that Ms Ross’ reports are of little assistance.
38 An employment assessment dated 23 July 2018 by Mary Oliver, of Flexi Personnel[39] which was provided to the plaintiff’s solicitors, concluded that, given his extensive physical restrictions, and the unlikelihood that the plaintiff could guarantee regular attendance at work, the plaintiff’s residual ability “is unlikely to equate to a capacity for adequately performing employment duties in the workplace”[40]. She noted that whilst in theory, with retraining, the plaintiff could make the transition to office work, his physical limitations, poor concentration and medication side effects would prevent him from successfully retraining.
Findings and reasons
[39] PCB 98
[40] PCB 103
39 I found the plaintiff to be a straightforward witness who gave responsive answers to all the questions asked of him. There was no attack on his credit. I accept his evidence concerning the onset of his symptoms in the back and left leg and concerning the impact of the impairment of the lumbar spine on his domestic, social, recreational and occupational activities. I accept his evidence that prior to the termination of his employment he was unable to increase his working hours in alternative duties to much beyond a couple of hours per day for a few days per week and that, as at the date of the hearing, given his pain level, functional restrictions, and the impact of the analgesic medication he takes, he considers himself permanently unfit for any suitable employment. In particular, I accept his evidence that he speaks only high school Turkish and that he has tried to tutor his children at home in maths but has been unable to carry out the tutoring at the designated time because of his physical symptoms and because he lacks concentration and has trouble with his memory.
40 The parties agree and I therefore find that as a result of the incident at work the plaintiff suffered an injury to the spine in the form of a mechanical injury to the lumbar spine, particularly at L5/S1 and aggravation of degenerative changes to the lumbar spine. The defendant did not dispute that the pain and suffering consequences of the lumbar spine impairment meet the narrative test for serious injury. I therefore find that the pain and suffering consequences of his permanent impairment of the function of the lumbar spine are more than considerable when compared with other cases in the range of permanent impairments.
41 I accept that some examiners (Mr Simm, Dr Slesenger, Mr Dooley, Dr Barton and Dr Davison) noted the presence of non-organic features to the plaintiff’s presentation. Nevertheless, there was unanimous acceptance (apart from Dr Barton, upon whose conclusion the defendant did not rely in relation to the plaintiff’s residual work capacity) among the experts that the plaintiff is permanently incapacitated for his pre-injury duties due to the impairment of the function of the lumbar spine. When addressing the issue of the plaintiff’s residual work capacity, Mr Dooley and Mr Simm asserted that the plaintiff has, on the physical side, a residual work capacity for light duties but that he has developed a chronic pain syndrome which is responsible for the apparent total incapacity for employment. If these orthopaedic experts were purporting to diagnose a psychological condition, then they were acting outside their areas of expertise.
42 I prefer the opinion of the treating neurosurgeon, Mr Timms, who concluded that, due to the organic injury to the lumbar spine, the plaintiff was likely to suffer indefinitely from ongoing back pain and intermittent sciatica. Given the level of the plaintiff’s pain, his postural restrictions, the daily ingestion of large amounts of analgesic medication and the side effects of that medication, Mr Timms concluded that the plaintiff is in effect permanently totally incapacitated for all employment. His conclusion was echoed by Dr Slesenger, who opined that the plaintiff was unlikely to be able to return to perform suitable alternative duties on a consistent and reliable basis. Ms Oliver noted that the plaintiff’s physical limitations, poor concentration and medication side effects would prevent him from successfully retraining.
43 I am satisfied that, leaving aside any non-physical aspects to the plaintiff’s presentation, there continues to be a substantial organic basis to the plaintiff’s ongoing pain, requirement for analgesic medication and functional restrictions. Having carefully considered all of the recent opinions concerning his work capacity, and the fact that in 2015, when he last worked, the plaintiff could not manage more than 12 hours per week, along with the opinion of Ms Oliver that he could not manage retraining, I am satisfied that, as at the date of the hearing, the plaintiff will permanently suffer a loss of earning capacity of 40% or more. It follows that the loss of earning consequences of the permanent impairment of the function of the lumbar spine are more than considerable when compared with other cases in the range of permanent impairments.
Conclusion
44 Leave is granted to the plaintiff to issue proceedings for the recovery of damages for loss of earnings and pain and suffering in respect of the injury to the lumbar spine suffered on 26 November 2013 while working for the defendant.
45 I reserve the question of costs.
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