Yirga-Denbu v Victorian WorkCover Authority
[2017] VCC 1171
•28 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04480
| TILAHUN YIRGA-DENBU | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 June 2017 | |
DATE OF JUDGMENT: | 28 August 2017 | |
CASE MAY BE CITED AS: | Yirga-Denbu v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1171 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lumbar spine and left leg – pain and suffering and pecuniary loss damages
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Ltd (2007) 17 VR 592
Judgment: Leave granted to the plaintiff to commence a proceeding seeking damages for pain and suffering. Application in respect of loss of earning capacity dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie with Mr P A Johnstone | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr S O’Meara with Ms M Tait | Russell Kennedy |
HIS HONOUR:
Introduction
1 Mr Yirga-Denbu seeks leave or permission to start a proceeding for damages against the defendant under s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). I can give him leave or permission if he proves he has a “serious injury”. He says his serious injury is the permanent serious impairment or loss of a body function to the lumbar spine and left leg. He relies on the consequences to him of the impairment or loss with respect to pain and suffering and loss of earning capacity.
2 This case is somewhat unusual. There are two opinions of a Medical Panel which affect the outcome. Although the Victorian WorkCover Authority is the defendant, Mr Yirga-Denbu’s employer was Princes Laundry Services Pty Ltd (“Princes Laundry”).
Circumstances
3 Mr Yirga-Denbu is forty-six. He was born in Ethiopia. He has eight brothers and sisters. He was schooled in Ethiopia, completing the equivalent of Year 12 in 1999. He worked in his family’s restaurant, helping his father with bookkeeping. He migrated to Australia, arriving here on 14 December 2007. He was sponsored by a woman living in Australia and entered the country on a “marriage” visa. He married her and they have two daughters, now aged five and eight. He has no other family member in Australia.
4 His first job was packing in a warehouse in Derrimut for a business called Benson LTL. This lasted for about six months. He then worked as a cleaner at the Bundoora Primary School. This lasted only a month because the distance to the school was too great.
5 On 23 June 2008, he started working casually for Princes Laundry, becoming permanent in March 2009. For the first two months, he worked at hospitals in Sunshine and Footscray and for the next twelve months at the Royal Melbourne Hospital. Thereafter, he worked at the Royal Children’s Hospital between Monday and Friday and at the Royal Melbourne Hospital on the Saturday and Sunday. He worked seven days each week for up to sixty hours. His normal hours were between 6.30am and 2.30pm.
6 There were two aspects to his duties. He would prepare and pack clean linen and blankets into trolleys and deliver them to wards. He would collect bags of dirty linen from those wards, weighing up to 35 kilograms. He would place them in a laundry chute or carry them into the laundry.
2011
7 At about 8.45am on 29 January 2011, Mr Yirga-Denbu was lifting six blankets from one trolley to another when he felt a “crunch” in his lower back:[1]
“… My back seized up and I could not move because of the severe pain which I was in. I also felt weakness and numbness in my left leg and I had to sit down.”
[1]Affidavit sworn 2 February 2015 at paragraph [20]: Plaintiff’s Court Book at page 12
8 A team leader took him to the emergency section of the hospital where he was working. He was examined by a neurosurgeon, treated with analgesics and physiotherapy, stayed overnight and discharged the next day. He went to his general practitioner, Dr Hagos, who arranged for x-rays and CT scans of his lumbar spine. The latter showed:[2]
“L4/5 level, there is a significant broadbased posterior disc bulge causing spinal canal stenosis, indentation of the thecal sac and probably of bilateral descending L5 nerve roots.
…”.
[2]Report of CT lumbar spine: Plaintiff’s Court Book at page 95
9 On 11 February, he returned to the hospital. His pain was radiating down his left thigh. He moved and walked with difficulty. Diagnosed with sciatica, he was again treated with analgesics and physiotherapy, kept overnight and discharged the next day. He returned to the hospital for reviews on 7 March, 18 April, 6 June 2011 and 26 March, 26 November and 17 December 2012. The hospital arranged three MRI scans: 3 March and 5 September 2011 and 26 November 2012. At his review on 7 March –
“… the treating neurosurgeon felt that the disc herniation was large and that he had a relatively high risk of developing cauda equine syndrome without surgery. However, he declined the medical advice to undergo surgery. … .”[3]
[3]Report of the Royal Melbourne Hospital dated 10 July 2013: Plaintiff’s Court Book at page 111
10 On 3 March, an MRI scan showed:[4]
“A mid posterior disc herniation at L4/5 compresses on spinal canal and lateral recesses. Mild disc bulge at L5/S1.”
[4]Quoted from the report of Associate Professor Miron Goldwasser dated 31 October 2013 appearing at Defendant’s Court Book at page 55
11 On 5 September, another MRI scan showed:[5]
“L4/5: posterior disc bulge with broad based central protrusion. The AP diameter of the protrusion has marginally decreased since the prior study and there is now a small left central annular fissure present. Moderate canal stenosis with some contribution from flaval thickening. Descending L5 nerve roots are contacted and mildly compressed in the lateral recesses. Minor bilateral foraminal narrowing without neural compression.”
[5]Royal Melbourne Hospital radiology report dated 5 September 2001: Plaintiff’s Court Book at page 88
12 At the time of the injury, Mr Yirga-Denbu earned about $792.00 each week before tax. When working longer hours, these earnings could increase to over $1,000.
2012
13 About a year after his injury, his wife ordered him from their home because he was not contributing financially. He also believes his irritability played a part in her action.
14 On 16 February, Dr Nicholas Maartens, neurosurgeon, wrote to Dr Hagos. He found a marked restriction of straight-leg raising of his left leg, reluctance to flex or extend the lumbar spine through pain, altered sensation on the whole left leg, weakness of ankle, hallux dorsiflexion and plantar flexion due to pain. He recommended a nerve root block followed by a microdiscectomy on the left-hand side. He thought Mr Yirga-Denbu could not continue as he was.
15 Starting on 1 February 2011 and finishing on 30 August 2012, Mr Yirga-Denbu was treated by a physiotherapist, Kane Nickles, at clinic in St Albans.[6] At first, he appeared as very disabled. Thereafter, he saw the physiotherapist a “vast” number of times. Despite this, any improvement in pain and stiffness did not last. Mr Nickles thought the prognosis was very poor with surgery the only hope for improvement. Mr Yirga-Denbu does not want surgery.
[6]Plaintiff’s Court Book at pages 96-101
16 On 26 November, a further MRI scan showed:[7]
“4mm broad-based central disc protrusion at L4/5, with a secondary moderate central spinal canal stenosis, unchanged. Mild L3/4 and L4/5 facet joint osteoarthritis, unchanged.”
[7]Defendant’s Court Book at page 56
2013
17 On 10 April, Dr Mebratu Hagos, general practitioner, wrote to his solicitors. After a brief history, Dr Hagos commented:[8]
“Mr. Yirga was offered different types of work but he felt that he is not capable of working. Currently he is financially, physically and psychologically affected. Based on this he will need financial, physical and psychological support until he is capable of doing some type of work. At this stage it is hard to know when he is capable of doing any type of job.”
[8]Plaintiff’s Court Book at page 104
18 In May, Mr Yirga-Denbu attended the Dorset Rehabilitation Centre for management of his pain and did so for seven or eight months.
19 Kenan Rahmanovic is a psychologist. Dr Hagos referred Mr Yirga-Denbu to him for treatment. Although he still treats Mr Yirga-Denbu, Mr Rahmanovic has written only one report, dated 1 July. He described the current psychological symptoms as persistent, low mood, lack of motivation, lack of energy, memory problems, difficulties with organising and planning behaviour, cries often, insomnia, significant decrease in appetite, overwhelming fear of the future, heart palpitations and a feeling of doom. He diagnosed a Major Depressive Disorder and Generalised Anxiety Disorder. On three occasions in his relatively brief report, Mr Rahmanovic mentioned his wife asking him to leave their home because he could not provide for the family financially.
20 On 29 October, Associate Professor Miron Goldwasser examined Mr Yirga-Denbu at the request of an authorised agent. He undertook an impairment assessment. He found marked tenderness and muscle spasm in the area of the L4-5 disc, more on the left side than the right side. He found moderate restriction of extension and flexion of the “back” and mild restriction of lateral bending. There was no radiculopathy. There was no anatomical reason for the altered sensation in the left leg, from the toes to the mid and upper thigh. Since it was an impairment assessment, and using the fourth edition of the Guides to the Evaluation of Permanent Impairment, he placed Mr Yirga-Denbu’s condition in lumbar-sacral category 11 (minor impairment) and a 5 per cent whole-person impairment.
2014
21 Early in the year, Mr Yirga-Denbu started to feel pain in his right leg. In August, he stopped taking certain medicines because he formed an ulcer, which bled.
2016
22 On 4 February, and again on 23 March, Dr Robert Athey, a psychiatrist, saw Mr Yirga-Denbu at the request of his solicitors. He diagnosed a chronic, Severe Adjustment Disorder with very significant symptoms of anxiety and depression. The disorder was caused by his back injury. Its symptoms were increased by his inability to find work, continued severe back pain and the breakdown of his marriage. His disorder would improve if his physical problems improved.
23 Dr Athey described the psychological symptoms as high levels of anxiety with panic disorder, uncontrolled worry and depressive symptoms including poor self-esteem
24 On 9 February, Paul Hartley, a rehabilitation consultant and vocational assessor, saw Mr Yirga-Denbu. After a highly detailed examination of his skills, Mr Hartley concluded:[9]
“I believe that he is, and will on the balance of probabilities remain, unemployable due to his poor prognosis for improvement, his injury related chronic severe pain and disability, emotional lability, poor English literacy skills, lack of digital literacy, his limited vocational history with a lack of work experience for other suitable roles, his lack of transferable skills, education or qualifications, his protracted length of time from the workforce, his poor ability to undertake retraining, his advancing age, his geographical location and the paucity of occupational rehabilitation post injury.”
[9]Plaintiff’s Court Book at page 43
25 He re-iterated this opinion in his second report, dated 24 March 2016.[10]
[10]Plaintiff’s Court Book at pages 58-77
26 Mr Hartley wrote a third time on 26 September, having been given a copy of the opinion of the Medical Panel dated 29 August 2016. Mr Yirga-Denbu’s solicitors asked him three questions. In Mr Hartley’s words, the third question was:[11]
“The Panel opined that your client could gradually increase from 20 hours per week upwards. What would be the maximum number of hours your client could gradually increase his capacity given his lower back injury?”
[11]Plaintiff’s Court Book at page 79
27 Mr Hartley answered by saying he had searched for the past four days for light packer jobs in the Melbourne metropolitan area and found none; adding the vast majority of these jobs come from recruitment or labour-hire agencies. These agencies would most likely require him to work three full shifts each week at a minimum (22.5 hours). For a direct employer, Mr Hartley believed he would be required to work full time (ie 38 hours each week) unless employed under an incentive scheme which allowed a gradual return to work. As to the maximum number of hours, Mr Hartley could not say, doubting he could reach full-time hours or beyond that.
28 On 16 February, Dr Jurie Snyman, occupational and environmental physician, examined Mr Yirga-Denbu at the request of his solicitors. She examined him thoroughly. There was minimal extension. He walked on his heels slowly, being unable to walk on his toes. She saw no improvement clinically over four years and thought his prospects of returning to work poor.
2017
29 In January and February, Mr Yirga-Denbu complained to Dr Hagos of severe pain across his lower back. On 24 February, he also complained of pain in his right hip. X-rays were taken of the hip. Dr Hagos recommended more exercise. He now goes to the Highpoint Aquatics Centre four days each week for hydrotherapy, which he pays for himself.
30 On 13 April, CT scans were made of his abdomen and pelvis. Among other things, the report of the scans said:[12]
“Degenerative changes are noted involving the lower lumbar spine particularly at L4-L5 where there is a broadbased disc bulge contributing to narrowing of the central vertebral canal and exiting foramina.
… .”
[12]Plaintiff’s Court Book at page 154
31 A purpose of the scans was to see if the abdomen was a source of his lower back and leg pain. It was not.[13]
[13]See report of Mr Nagesh dated 22 June 2017: Plaintiff’s Court Book at page 155
Current complaints
32 Mr Yirga-Denbu suffers constant pain in his lower back and legs. In the past, he had pain in his right hand, neck, right hip, stomach and chest. The neck pain seems to come from his back. He has good and bad days. On a good day, his pain is not that terrible. This makes him feel relieved and happier.[14] In this mood, he can cook for himself and try to clean his residence. He evens feels like going back to work, but does not. He is stiff and his movements are restricted. He sees his children at least once each week. However, his injuries make playing with them difficult. It upsets him that his children see him in such difficulty.
[14]Transcript at page 31
33 He takes a variety of medicines: Panadeine Forte; Panadol Osteo; Tramadol; Mobic; Pristiq; Gabapentin; Nexium; and Duodart. At present, he takes Panadol Osteo, Nexium and Panadeine Forte when the pain is unbearable. He avoids the rest because of side effects including internal bleeding.
34 He sees his psychologist, Kenan Rahmanovic, regularly.
35 He has not worked since 29 January 2011 and receives Centrelink benefits.
36 Although starting English language courses in 2008 and attending about a half of the available 510 hours, he believes his English language skills have not improved; they are still basic. He coped by “… watching what others did and by learning to understand basic work commands”.[15] His native language is Amharic, which he speaks, reads and writes. He has a Victorian driver licence. He cannot write in English. He barely reads or speaks English.
[15]Plaintiff’s affidavit sworn 8 June 2017 at paragraph [15]: Plaintiff’s Court Book at page 7
Opinions of Medical Panels
37 There have been four opinions given by Medical Panels. I was asked to look at the third and fourth. The date of the third is 29 August 2016 and answers five questions. In answer to the first question concerning his medical condition, both physical and psychiatric, the Medical Panel said:[16]
“The Panel is of the opinion that the Plaintiff is suffering from mild residual dysfunction of the lumbar spine secondary to an L4-5 disc injury but without objective clinical evidence of radiculopathy or any neurologic compromise and an adjustment disorder with depressed mood, relevant to the ‘alleged injuries’.”
[16]Defendant’s Court Book at page 93
38 The Medical Panel said Mr Yirga-Denbu had a “current capacity for work” as a hand packer and nothing else. When asked how many hours per week he could work in such employment, it said twenty. For some reason, it did not answer the questions concerning process worker and product examiner. Those and other questions were asked.
39 In its fourth opinion, dated 6 February 2017, the Medical Panel said Mr Yirga-Denbu had the capacity for work as a process worker, working twenty hours per week. It said he lacked current work capacity as a product examiner. Having said his capacity for work existed as a process worker, the Medical Panel was presented with this question:
“Question 5 Is Mr Yirga-Denbu’s incapacity for work as a process worker (if any) permanent?
Answer:No.”
40 What did this answer mean? One realises by reading its extensive reasons for its opinion. At page 16, it said:[17]
“… As the Panel considered that any ongoing condition of the Plaintiff’s low back is mild he would be able to return to employment as a hand packer of light items or process worker in an environment where normal work practices of job/task rotation occurs initially starting on a part-time basis of 20 hours per week but gradually increasing his work hours over time.
The Panel therefore concluded that the Plaintiff has a current capacity as a hand packer (light items) and as a process worker initially for 20 hours per week but gradually increasing over time as he work hardens. The Panel further considered, based upon its own experience and expertise, that that (sic) there has been some resolution in the Plaintiff’s back injury and that this improvement in his physical status will continue and that he will be able to undertake additional hours as a hand packer (light items) and as a process worker. The Panel therefore concluded that the Plaintiff’s current partial incapacity for work as a hand packer (light items) and as a process worker results from and is still materially contributed to by the alleged low back injury but the worker’s partial incapacity for work as a hand packer (light items) and process worker is not permanent.”
[17]Defendant’s Court Book at page 126
41 Two pages earlier, the Medical Panel noted his mild low back dysfunction would limit employment options requiring any repetitive bending or lifting or manoeuvring of heavy weights.
42 The identification of hand packer and process worker as suitable jobs comes from an earlier report of Recovre.[18] The authors qualified each with the expression “within limitations”. They adopted the views of some medical practitioners that he could do suitable employment with these limitations: avoid heavy levels of manual handling; avoid significant bending of the trunk, and allow for opportunities to vary posture at regular intervals.
[18]Report dated 19 February 2016: Defendant’s Court Book at pages 149-198
43 After looking at various aspects of the job of hand packer, the authors say:[19]
“Packing roles are considered to be vocationally suitable for Mr Yirga-Denbu as he has sound manual dexterity and the aptitude to undertake this type of job role. In addition, this occupation can offer roles which can accommodate Mr Yirga-Denbu’s very basic level of English language skills.
In the experience of the assessors, sedentary level bench top packing roles can arise within the open labour market, particularly within selected industries such as hosiery, commercial bakeries, cosmetics, snack foods, mail sorting and the like. Thus, it is suggested that Mr Yirga-Denbu may be suited to selected packing roles within the open labour market.”
[19]Defendant’s Court Book at page 156
44 The second job was a process worker within limitations. From noting his vocational capacity, the authors said:[20]
“From a physical perspective, the role of process worker is considered likely to yield some potential as a suitable employment option for Mr Yirga-Denbu. Noting that there can be great variability in terms of physical demand requirements, Mr Yirga-Denbu is considered to be suited to selected light process work roles which more typically arise in industries similar to those noted above.”
[20]Defendant’s Court Book at page 157
45 The authors made a detailed examination of the tasks involved in a hand packer job at a hosiery maker and a process worker at a gas meter maker. They considered both as suitable for Mr Yirga-Denbu. With the gas meter maker, they noted “[t]he opportunity to work part time or casually exists (15 current casual employees) and the opportunity to gradually increase hours exists”.[21]
[21]Defendant’s Court Book at page 169
46 In passing, at some time, Mr Yirga-Denbu tried to get work. He approached shopkeepers and restaurants owners in his community. They knew of his injury “but they don’t want to have a bar of me, they don’t want to have anything to do with me”.[22]
[22]Transcript at page 40
47 The Medical Panel concluded he continued to suffer from an Adjustment Disorder with Depressed Mood but that the condition would not alone impact on his capacity to work. In its Reasons, the Panel dealt with his psychological condition in great detail. It noted the opinion of an earlier Medical Panel. It took a history of the onset of his psychological problems, the breakdown of his marriage, treatment from Mr Rahmanovic, prescription of certain medicines, his current psychological state including his view of the impact of his injury on his children, his sleep, appetite, anxiety, memory, his daily activities, alcohol consumption, past psychological treatment, and mental state. In various parts of its Reasons, the Panel spoke of his marriage and children. For example under mental state examination, the Panel said:[23]
“The Plaintiff’s thought stream and form were normal. Thought content was characterised by a focus on the losses associated with his injury, primarily the breakdown of his marriage, limited contact with his children, and his inability to work. … . .
[23]Defendant’s Court Book at page 123
Legal considerations
48 Mr Yirga-Denbu must prove:
(a)he suffered an injury arising out of or in the course of his employment with Princes Laundry. It is undisputed that he suffered an injury on 29 January 2011 while working for Princes Laundry. The injury is to his spine and left leg;
(b)the injury must be a “serious injury”, as defined in s134AB(37). Within the definition, in this case, it is a “permanent serious impairment or loss of a body function”;
(c)the impairment or loss due to the injury must be permanent, which means likely to last for the foreseeable future;[24]
(d)“serious” is satisfied by reference to the consequences of his impairment or loss of body function with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of a body function;[25]
(e)the pain and suffering consequence of an injury encompasses both Mr Yirga-Denbu’s experience of pain and suffering and the disabling effect of pain on his physical capabilities (including capacity for work) and enjoyment of life;[26]
(f)where Mr Yirga-Denbu relies on paragraph (a) of the definition of “serious injury” and not paragraph (c), then s134AB(38)(h) requires me to ignore the psychological or psychiatric consequences of the physical injury and s134AB(38)(i), the physical consequences of a mental or behavioural disturbance or disorder. In Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis,[27] Maxwell P described the extent of the operation of paragraph (h);
(g)an impairment or loss of a body function is not serious unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;
(h)whether an injury is serious is largely a question of impression or value judgment.[28]
[24]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
[25]Section 134AB(38)(b) of the Act
[26]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraphs [9] to [17]
[27](2007) 15 VR 649 at paragraph [9]
[28]Kelso v Tatiara Meat Co Ltd (2007) 17 VR 592 at 628
49 To gain leave for loss of earning capacity consequence, Mr Yirga-Denbu must prove:
(a)a loss of earning capacity of 40 per cent or more, both at the date of hearing and permanently. That is, a loss of earning capacity productive of financial loss of 40 per cent or more;[29]
(b)his loss of earning capacity is measured by comparing his gross income from personal exertion which he is earning whether in suitable employment or not or capable of earning in suitable employment as at the date of hearing, whichever is the greater, with his gross income he was earning or would have earned or would for that part of the three years before and three years after the injury as most fairly reflects his earning capacity had the injury not occurred.[30]
[29]Section 134AB(38)(e)(i) and (ii) of the Act
[30]Section 134AB(38)(f) of the Act
Discussion
Pain and suffering consequence
50 Mr Yirga-Denbu experiences pain in his lower back and legs. The intensity of the pain varies: he has good and bad days. On a good day, he is relieved and happy the pain is not “terrible”. He feels able to cook and clean. He even feels able to go back to work. He does not, because the good day is replaced by the bad.
51 I will discuss the issue of loss of earning capacity consequence below but it is plain Mr Yirga-Denbu has lost the capacity for his pre-injury job. He worked long hours in that job.
52 Reading his affidavits, one could think his separation from his wife and daughters was a matter of little moment for him: it is mentioned briefly. Looking at other documents, it is a serious consequence to him flowing from his injuries.
53 Mr Hartley wrote:[31]
“Mr. Yirga-Denbu’s wife ejected him from the family home and access to his two young daughters (aged 7 and 4 years) as he could not provide for them any longer. As a result he is homeless, currently sharing a room in a boarding house, with no property and only a bed to sleep in. He gains some assistance from the Salvation Army and advised he is waiting for assistance with public housing.”
[31]Plaintiff’s Court Book at page 28
54 Mr Yirga-Denbu is now forty-six. He migrated to this country when he was thirty-six. He was sponsored and entered the country on a “marriage” visa. He married the woman who sponsored him. They now have two daughters, aged five and eight. Although he has eight siblings and, undoubtedly, many relatives, no sibling or relative lives in Australia. About a year after his injury, his wife ordered him from their home. He was irritable and not contributing to their upkeep. Instead of living with his wife and his children, he lives apart, enjoying limited contact with his daughters. Of the many consequences of an injury, this is important. At a time when he needs love and support, he loses both and is alone.
55 There are three factors bearing on the pain and suffering consequence. First, Mr Yirga-Denbu suffers pain, especially from his lower back. Its intensity varies. The condition of his back is improving. There is a functional element. Not all of his complaints are due to the physical consequences of his injuries. Second, he will not return to his pre-injury work even though he can do other work. He worked hard and long in it. Third, his injury had consequences leading to his wife ordering him from their home. In my experience, this a most unusual consequence. For Mr Yirga-Denbu, it has left him isolated and largely unsupported. Ignoring the psychological effects, it remains a very significant consequence.
56 From the perspective of the pain and suffering consequence, the combination of those three factors means Mr Yirga-Denbu has a serious injury. By comparison, the impairment or loss is more than significant or marked and is at least very considerable.
Loss of earning capacity consequence
57 Where the Medical Panel speaks of “partial incapacity for work” and “current partial incapacity for work”, it refers to his incapacity for work now. The expression “not permanent” means he will work more hours in the future in those jobs than the 20 he could now work. Therein lies the difficulty with the opinion. It does not say he could in the future work full hours in those jobs but will work more than 20 hours due to two factors: work hardening; and the continued resolution of his back injury. The Panel does not say what are the most hours he could work in those jobs. Perhaps it could not say. Its Reasons give me no basis to infer. Only Mr Hartley was asked to say and he could not.
58 The opinion raised questions which have not been answered by the evidence. I cannot find where his maximum hours will sit permanently. They will sit above 20. Where they would sit ultimately, I cannot find. I cannot find a loss of earning capacity productive of a financial loss of 40 per cent or more. I cannot give leave under this head.
Conclusion
59 I will give leave to Mr Yirga-Denbu to start a proceeding seeking damages for pain and suffering only. He is not given leave to start such a proceeding for loss of earning capacity.
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