Yosiffidis v Hallaway Services Pty Ltd
[2012] VCC 1900
•12 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-06161
| DANIEL YOSIFFIDIS | Plaintiff |
| v | |
| HALLAWAY SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 December 2012 | |
DATE OF JUDGMENT: | 12 December 2012 | |
CASE MAY BE CITED AS: | Yosiffidis v Hallaway Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1900 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower spine – worker under 26 years of age – admission as to pain and suffering – loss of earning capacity only
Legislation Cited: Accident Compensation Act 1985, s134AB 1985
Cases Cited:Jarvis v Woolworths Limited [2002] VCC 1329; State of New South Wales v Moss (2000) 54 NSWLR 356
Judgment: Leave to plaintiff to issue proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC with Mr M J Garnham | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
1 The plaintiff suffered injury to his lower back on 31 July 2006 in the course of his employment. He had a pre-existing lower back condition in the nature of spondylolisthesis. On the date of injury, he was struck in the chest by a large piece of steel, which also caused jarring to his back. The injury led to a double-level instrumental fusion in his lower spine at the hands of Mr Brazenor, neurosurgeon, in July 2007.
2 By letter dated 12 November 2012, the solicitors for the defendant conceded that the plaintiff satisfied the “pain and suffering” limb as set forth in s134AB(38)(b)(i) of the Accident Compensation Act 1985 (“the Act”). The application proceeded only in respect of loss of earning capacity. The plaintiff claims his earning capacity has been significantly impaired. The injury occurred when the plaintiff was under twenty-six-years of age, and thus s134AB(38)(e)(ii) of the Act has application.
3 This is an application to bring proceedings pursuant to s134AB(16)(b) of the Act for injury suffered by the plaintiff in the course of his employment on 31 July 2006. The body function said to be lost or impaired is the lower spine. The application is thus brought under sub-s(a) of the definition of “serious injury” as contained in s134AB(37) of the Act.
4 The plaintiff and Ms Annette Webster of Flexi Personnel, a vocational consultant, were called to give evidence and be cross-examined. In addition, affidavits of the plaintiff, medical, radiological and vocational reports, and other material was tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of relevance in determining the issue of the plaintiff’s alleged loss of earning capacity. I shall not refer to all of the evidence of the plaintiff and Ms Webster, but rather those parts of their evidence which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant Background
5 The plaintiff was born in October 1985 and is now twenty-seven years of age. He was twenty years of age at the time of the workplace incident. He left school after completing Year 10 and did not undertake any formal tertiary education. He has no trade qualifications. He commenced an apprenticeship as a baker in 2002 but, because of bullying in the workplace, did not complete that apprenticeship. He worked in a range of manual employment, including gardening and factory jobs. He has always had an interest in matters mechanical, particularly motorcars, and has experience in welding. He has always had a passion to join the Navy and has made application on a number of occasions. He applied in 2004, but was rejected as he was suffering depression at the time.
6 It is clear the plaintiff had a pre-existing congenital back disorder described as a pars defect at L4 with Grade 1, L4-5 spondylolisthesis. In the past he has had a range of radiological investigations.[1]
[1]Plaintiff’s Court Book (“PCB”) 20-29
7 According to the report of the plaintiff’s first general practitioner, Dr Sinclair,[2] he treated the plaintiff in June 2004 for the disorder and obtained a history of low-back pain which was treated with anti-inflammatory and pain-relieving medication. The last consultation, according to the general practitioner, was in July 2004. There was no subsequent mention of the back injury until after the workplace incident in July 2006.
[2]PCB 33
8 There is no issue in this application as to the causative relationship between the plaintiff’s current low-back state, and the workplace incident.
9 The plaintiff commenced work with the defendant in March 2006 and worked as a factory hand/welder. He worked a 38-hour week and earned $520 gross per week. He described the work as physically demanding.
10 Prior to the incident, he enjoyed watching motorcar racing, in particular drag racing. He also participated in ten-pin bowling, took driving trips and other general social activities one would expect of a young man of his age.
11 Save in relation to the low-back condition to which I have referred, he was otherwise healthy and was able to work in his employment with the defendant in an unrestricted manner.
The Injury and its Consequences
12 On 31 July 2006, the plaintiff was working on a piece of steel attached to an overhead gantry. The steel slipped, striking him in the chest and jarring his back. Initially, his chest was sore, but over several days, he developed low-back pain.
13 He attended his general practitioner, Dr Sinclair, of the Knox City Medical Centre, and was initially treated for chest pain and certified as unfit for work for one week. By 4 August 2006, the plaintiff had developed low-back pain which had increased. The pain increased with pain in distribution along the S1 nerve, down the right leg and to the foot. A CT scan of 7 September 2006[3] showed the pre-existing spondylolisthesis at L4 and with a small fragment of bone in the area. There was foraminal narrowing compromising the exiting nerves. Dr Sinclair prescribed anti-inflammatory and pain-relieving medication.
[3]PCB 31
14 Dr Sinclair referred the plaintiff to Mr Greg Malham, neurosurgeon, who he first saw in September 2006.[4] Mr Malham received a history of worsening low-back pain and significant restrictions on movement, sitting and standing. There was referred pain down the right leg into the right foot. He arranged facet joint injections to the area through Dr Paul Verrills, but these provided no sustained relief. The plaintiff had ceased work in July 2006, and was unable to resume work with the defendant. Medications over this period included Neurontin and Tramadol.
[4]PCB 56
15 In April 2007, such was the severity of the plaintiff’s low-back pain that he was admitted to the Dandenong Hospital and then transferred to the Monash Medical Centre for a week. He required crutches on discharge. Mr Malham then referred him to Mr Graeme Brazenor, neurosurgeon, for consideration of surgery to the lower spine.
16 When examined by Mr Brazenor,[5] he was walking with an unusual gait and had severe low-back pain, with pain on sciatic distribution down the right leg. Mr Brazenor described the plaintiff’s problems as “grave”. He suggested a two-level spinal fusion at L4-5 and L5-S1. This was undertaken on 5 July 2007. He returned for review by Mr Brazenor regularly over the next eight months, and CT scanning of February 2008 indicated the fusion was solid and stable. According to Mr Brazenor,[6] by July 2008, the plaintiff was pain free and the fusion remained solid. The plaintiff told Mr Brazenor than he was considering work, including driving heavy earthmoving equipment, driving a forklift and doing an AutoCAD training course to become a draftsman. Mr Brazenor recommended against forklift driving. By November 2008, Mr Brazenor referred to the plaintiff as “top of the class”.
[5]Defendant’s Court Book (“DCB”) 32
[6]DCB 39
17 The plaintiff undertook the AutoCAD course, which he completed in 2008. The course relates to software to enable the design of houses and the like. In evidence, the plaintiff said “[I] know my way around a computer”.
18 In 2009, the plaintiff applied for a number of jobs, but was unsuccessful because, he said, disclosure of his back injury invariably led to refusal of his application. He obtained work with Eastern Bearings through his brother in mid-2009. He worked for that company for about six months, doing work similar to that which he performed for the defendant. According to a letter from that company dated 10 November 2009,[7] the plaintiff’s duties included driving a car to deliver orders, unpacking items onto shelves, general maintenance and cleaning. It was said the plaintiff was required to lift and carry heavy items over 20 kilograms. In evidence, the plaintiff disagreed with this description, and said that when he lifted heavier weights, he had assistance.
[7]DCB 161
19 He left that employment, not because of his back problems, but to pursue another position where he had the opportunity to undertake TIG welding with a company, ‘Engineered By Design’. Again, this was factory work and included forklift driving. After six months he was unable to continue because of increasing low-back pain.
20 The plaintiff had previously obtained Certificates I and II in Engineering. In February 2010, he commenced a Certificate IV in Engineering, in particular to enhance his welding skills. The course was one night per week and he completed it after a year. There was a further extension to this course, relating to welding, but he was unable to attend the final assessment because of low-back pain. As a result, he was unable to obtain his “welding ticket”.
21 In evidence, the plaintiff said that he applied for a range of jobs, including factory work, office work and retail. He also applied for employment as a data entry operator. He has been rejected from all these applications. In August of this year, he applied for employment with Skilled Engineering to do work with performance motor vehicles. He was told the position was filled when he went to the interview. He has never been successful in obtaining any of the jobs for which he has applied.
22 In 2009, and again in 2010, he applied to the Australian Defence Forces for a position in the Navy.[8] On the first occasion, he was rejected because he failed to pass an aptitude test. On the second occasion, his application was refused because of his back injury. As part of the second application, he wrote to the Defence Forces by letter dated 2 November 2009,[9] painting a glowing picture of his physical capabilities. However, I am satisfied that this was unrealistic, and was written to enable him to fulfil his ambition to join the Navy. Amongst other claims, he said he was able to undertake the “one thousand steps”, referring to walking up a pathway containing a thousand steps in the Dandenong Ranges. In evidence, he said he had done that on one occasion, carrying 2.5 kilograms. I do not take the view that the plaintiff’s credit is affected by this letter, but rather it shows a person of considerable determination attempting to pursue his goals.
[8]Exhibit B
[9]DCB 156
23 In the course of cross-examination, a range of potential areas of employment, were suggested by the defendant’s vocational assessor, CoWork Pty Ltd. These included work as a welder, working off site, spare parts interpreter, gym membership sales person and cash van sales person. The plaintiff said that generally he would be prepared to “have a go” at this employment, although had reservations about whether he would be able to undertake all of the tasks. In re-examination, he said he would be unable to do any of these jobs full-time, and if he suffered an exacerbation of his pain which required him to rest, he would be unable to work.
24 He has not worked since February 2010. In 2011, he came under the care of Dr Hanson, general practitioner.[10] At that time, he was taking Mersyndol Forte for pain and was significantly depressed. The plaintiff accepted that over the years he had largely not taken pain-relieving medication. This was because he was concerned that with his significant depressive state he may take an overdose and, further, that he was concerned not to become addicted to pain-relieving medication. Of more recent times, he has been prescribed pain-relieving medication by Dr Hanson.
[10]PCB 42
25 In his report of 14 November 2012,[11] Dr Hanson described the plaintiff as suffering lumbar back pain and right sciatic pain of intensity from mild to severe. The picture was complicated by depression and anxiety. He noted the plaintiff had a significant physical impairment and was limited in his ability to bend or rotate his spine. He was also extremely limited in his ability to lift, carry, push or pull, and was only able to stand and sit for short periods. Dr Hanson said:
“I cannot imagine any paid employment of which Daniel would be capable. He is keen to work, but the only feasible option would seem to me to be part time self employed work, in which Daniel could work at his own pace, and have frequent rest breaks in which he could walk around and exercise. Even with such work, I consider he would only be capable of working very limited hours; three hours on four days a week would be ideal; three hours on five days a week would be the maximum number of hours feasible, in my opinion.”[12]
[11]PCB 44
[12]PCB 44
26 In responding to the suggestions by CoWork as to appropriate employment, Dr Hanson said that the plaintiff would only be able to work as a welder if he was self employed and able to pace himself. Spare parts work, gym membership and sales person would only be feasible if he was able to work for a maximum of 12 to 15 hours per week. He said work as a cash van sales person would be unsuitable because of the amount of driving involved.
27 The plaintiff claims a range of domestic and recreational activities have been curtailed. He is still able to “tinker” with several motor vehicles that he owns, but not able to do any heavier work.
28 In May 2010, because of the continuing low-back pain, Dr Sinclair referred the plaintiff back to Mr Brazenor. Mr Brazenor commented that the plaintiff ought not have undertaken factory work because of the bending and twisting at the waist. A CT scan of April 2010 showed that the fusion was firm and stable, and there was nothing to suggest the levels above the fusion had become destabilised, although Mr Brazenor was of the view that the pain was probably coming from one of those upper levels.[13] He suggested the plaintiff could work selling real estate, driving a heavy truck (providing he did not have to handle the freight), working as a security guard or could work on a desk job (noting it was unlikely the plaintiff had the skills). He advised against martial arts or jogging. He last saw the plaintiff in December 2010 and told him he could not work as a storeman but could do any work providing it did not involve bending at the waist or accessing levels below the waist. He said the restriction was permanent. Mr Brazenor has not seen the plaintiff since December 2010.
[13]DCB 50
29 According to his most recent affidavit,[14] and the evidence given by the plaintiff in Court, he suffers continual significant lower back pain. He said he is never without pain. The pain is aggravated several times per week, which requires him to lie down. He is unable to remain in one position for too long. He gets continual pain into his right leg with pins and needles and numbness into the foot.
[14]PCB 19
30 As a result of the continuing pain, he says that he has become depressed and rung “Lifeline” and obtained the name of a counsellor, who he has consulted on a number of occasions.
31 In an attempt to strengthen his back, he attends the Monash Aquatic Recreation Centre in Glen Waverley. At the present time, he attends about five days a week and undertakes a range of exercise programs. These include Pilates, weights class, aerobics and swimming. He may go to the gym for between half-an-hour and three hours, depending on the state of his spine. Sometimes he works on the treadmill or a cross-trainer. He finds this helps build strength in his back and if he were to cease, he fears his back will become stiff.
32 In cross-examination, he acknowledged that the surgery was beneficial but disagreed with the assessment of Mr Brazenor that he was regularly pain free.
33 I had the opportunity to assess the credibility of the plaintiff in the course of his evidence. There were some small inconsistencies in his evidence, but I did not regard them as significant. The report he made to the Defence Forces was glowing but unrealistic. As stated, I assess this as a measure of his determination to obtain employment, rather than any evidence of dishonesty or exaggeration. All in all, I found him an impressive witness and have little difficulty accepting his evidence and the histories to the various medical practitioners of his current complaints of pain both in his lower back and right leg, and the restrictions that pain causes.
Medical Opinions
34 I have referred to the opinions of Dr Hanson, the general practitioner, and Mr Brazenor as to the plaintiff’s work capacity.
35 Although now somewhat dated, according to the report of Mr Malham of 13 October 2009,[15] the plaintiff would be unable to return to any heavy physical work, and listed his work restrictions as:
“No lifting of greater than 10 kilograms. Correct lifting techniques. No repetitive bending or twisting. Avoidance of prolonged standing or sitting greater than 45 to 50 minutes with a 10 minute break every hour. No prolonged stooping activities at waist … .”
[15]PCB 71-72
36 The plaintiff was examined by Dr Clayton Thomas, rehabilitation specialist, in December 2011. He noted the plaintiff had had major spinal surgery. As to work capacity, he said:
“He does not have capacity to perform unrestricted physical work. This would be totally inappropriate for him. Given that he has had a two level spinal fusion L4-5 and L5-S1, there is a risk that his back problem will progressively worsen with time and everything needs to be done in order to protect his lumbar spine. Effectively he needs to avoid anything which is not back friendly. He needs to work in a back neutral position, primarily in a position that does not involve bending, twisting and lifting below waist height or above chest height. Both of these if done repetitively would accelerate the normal ageing process and lead the lowest most mobile disc L3/4 at being quite vulnerable. This is not likely to become problematic in the short to medium term, but more likely to become problematic in the medium to longer term. Performing inappropriate physically based work would accelerate this problem and given he is only 26 years of age would lead to a domino affect. A position in which he were doing light welding would be reasonable for him. Welding being a sit/stand position with 5 kilogram between waist and chest height would be reasonable. I think in his current condition he would probably work in a position which was 6 hours per day. I think he could be reliable performing such work in the short to medium term. There is every prospect in the medium to longer term however that irrespective of avoiding work which is likely to aggravate and accelerate the problems at L3/4, his ability to perform unrestricted work is likely to be significantly more limited. … “[16]
[16]PCB 80-81
37 The plaintiff was examined by Mr Stanley Schofield, orthopaedic surgeon, in December 2009. He said the surgery performed by Mr Brazenor had been successful in relieving compression of the nerve roots and stabilisation of the two levels of the lower spine. He said the plaintiff had no capacity for returning to his pre-injury work and was suitable for light employment only.
38 The defendant had the plaintiff examined by Mr J Sinha, surgeon, in November 2006. His report is dated and of little assistance.
39 Mr Clive Jones, orthopaedic surgeon, examined the plaintiff in October 2007 and July 2008. He said the plaintiff had made a substantial recovery from the surgery but would be permanently incapacitated for active employment. At the time he said the plaintiff did not have a current work capacity and would require re-training if he were able to return to work.
40 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in December 2010. The plaintiff told him he was still suffering low-back pain with tingling and numbness into the legs. He said the plaintiff had lost a significant function of his lumbar spine and would continue to have intermittent low-back pain and pain into the right leg. He said he was unfit for heavy physical work on a full-time basis and that the plaintiff would have difficulty with a lot of work which involved bending and lifting.
41 The plaintiff was examined by Dr Malcolm Brown, occupational physician, in August 2011 and October 2012. He found some inconsistencies on physical examination. He said the plaintiff’s attendance at the gymnasium for up to three hours was inconsistent with his stated capacity for work. He said the plaintiff was suffering mild low back pain following the surgery. He had a partial incapacity for employment and was able to do work such as light assembly work with the capacity to sit and stand at will. He should avoid work which involved bending or heavy lifting or standing constantly through a work shift. As to the jobs suggested in the CoWork report, he said the plaintiff would be likely to have difficulty working as a welder because of the bending required but would have the capacity to work as a spare parts interpreter, gym sales person or cash van sales person.
42 As stated, CoWork provided an extensive report of December 2011 which not only suggested the jobs to which I have referred, but analysed the work requirements of actual jobs in the workplace, and their availability.
43 As stated, Ms Webster of Flexi Personnel responded to the suggested areas of employment. She said that the plaintiff did not have the capacity to undertake any of the jobs suggested, and would have significant difficulties in obtaining employment in the open workforce. This was because of:
§the pain and restrictions emanating from his lower back injury;
§his skills and experience were predominantly in the manual environment;
§the risk to an employer of aggravation of the back injury;
§the difficulty the plaintiff would have in passing a pre-employment medical check; and
§the plaintiff’s reduced memory levels and fatigue.
44 She concluded that the plaintiff would struggle to find any suitable light employment or to be trained into any alternative vocational area.
45 In relation to the jobs suggested, she commented that the plaintiff would be unsuitable for work as a welder, although accepted that, injury aside, the plaintiff would be vocationally suited for the position. She said welding required repetitive twisting, reaching and lifting, often into awkward postures. She said she had experience with employment of a spare parts interpreter. She said there was regularly heavy lifting, and placing spare parts into shelving, both above shoulder height and below waist height. The lifting was often repetitive.
46 In relation to gym membership sales person, she noted that the plaintiff had never had any experience in sales, and did not have the vibrant and positive personality which was often required. In addition, she said that the work often involved general cleaning, work at the front desk and multi-tasking. She said the plaintiff was not appropriate for such employment. She said a cash van sales person would not be appropriate given the plaintiff’s capacity to drive only for short periods. She said the plaintiff would find it difficult to get in and out of a van, particularly if the job required forty or so stops per day.
47 Overall, I was impressed by the evidence of Ms Webster, which she gave in a measured manner. I accept her evidence, not as a medical opinion, but rather as to the reluctance of employers to place persons with serious back injuries into employment situations and their concern about further injury. I further accept her comments about the tasks involved in the range of employment suggested.
Conclusions
48 As the plaintiff was under twenty-six-years of age at the time of the incident, the formula prescribed by s134AB(38)(f) of the Act has no application.
49 In the Second Reading Speech of the Accident Compensation (Common Law and Benefits) Bill,[17] the Government recognised that workers under twenty-six-years of age should not be subject to the same six-year period of inquiry as to earnings or earning capacity as persons over that age. The Minister said:
“In the case of such workers, a court may have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker's probable earning life. This means the usual common-law position prevails.”
[17]23 May 2000, the Honourable M Gould, Minister Assisting the Minister for WorkCover
50 Nonetheless, the legislation requires the plaintiff to prove that the injury has caused a financial loss of 40 per cent or more. In Jarvis v Woolworths Limited,[18] his Honour Judge Brookes examined what was said to be the common law position in relation to loss of earning capacity. His Honour referred to various criteria established in State of New South Wales v Moss,[19] and to a range of criteria to be taken into account. With respect, I accept the principles stated by his Honour Judge Brookes as applicable to this application.
[18][2012] VCC 1329
[19](2000) 54 NSWLR 356
51 There is no issue the plaintiff suffered a significant injury to his lower spine in the subject workplace incident. That injury was an aggravation of an underlying spinal disorder at the L4-5 and L5-S1 levels. Treatment included very significant spinal surgery in the form of a two-level instrumental fusion performed by Mr Brazenor. There is no issue that has left the plaintiff with a significant disability and restriction in his lower spine, and rendered him incapable of any form of heavy manual employment, including that which he undertook with the defendant prior to injury.
52 Despite Mr Brazenor’s rather glowing expectation as to the plaintiff’s work capacity, and the success of his surgery, I accept the evidence of the plaintiff that the pain he is suffering is continuous, and has, over recent years been deteriorating. In addition to low-back pain, he suffers pain into his right leg, with some numbness and tingling in the foot.
53 In terms of work capacity, I prefer the opinion, in particular of the plaintiff’s treating general practitioner, Dr Hanson, in his report of 14 November 2012. That doctor has treated the plaintiff regularly and considered him as significantly restricted for all forms of employment to the extent that he said that he could not imagine there was any employment for which the plaintiff was capable. If he was capable of any employment, it would be for no more than 15 hours per week. Other doctors have expressed considerable reservations as to the plaintiff’s work capacity. In particular Dr Thomas, while accepting the plaintiff had some work capacity, suggested a range of restrictions which were very extensive.
54 I am fortified in my view as to the plaintiff’s restricted work capacity by the fact that he has applied for and has obtained, with the exception of two jobs in 2010, no work at all. He has been rejected by the Navy because of his low-back injury. At least in one of the jobs he attempted in 2010 he was required to leave because of low-back pain, and he has received little or no response to various other job applications.
55 I prefer the evidence of Ms Webster of Flexi Personnel as to the various jobs suggested by CoWork. I accept her expertise in assessing the various tasks involved in the suggested jobs, and in my view, the plaintiff has only limited capacity for them, even if he was able to find such employment. In my view, it is totally unrealistic to expect the plaintiff has any capacity for a sales job. He does not have the requisite personality type and has no experience in sales. While he has a passion and competence in welding, I accept the explanation of Ms Webster, that that is a physical job, beyond his capacity. For the reasons stated, I reject the suggestion the plaintiff has a capacity for those jobs.
56 All in all, the plaintiff has a very limited capacity for employment. While a young man, he has had a very severe back injury and extensive surgery. He has been left with a debilitated back with significant restrictions for employment. I accept the opinion of Dr Hanson that, while he has some capacity for work, it is indeed modest, and well below the 60 per cent as prescribed by the legislation.
57 The plaintiff’s application succeeds. I shall make consequent orders.
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