Zizic v Structural Steel Systems Pty Ltd and Victorian WorkCover Authority
[2013] VCC 1014
•21 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-06381
| JURE ZIZIC | Plaintiff |
| v | |
| STRUCTURAL STEEL SYSTEMS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 February 2013 | |
DATE OF JUDGMENT: | 21 August 2013 | |
CASE MAY BE CITED AS: | Zizic v Structural Steel Systems Pty Ltd & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1014 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering and loss of earning capacity – aggravation
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Leave to the plaintiff to bring common law proceedings for both pain and suffering damages and pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Ruddle | Verduci Lawyers |
| For the Defendants | Ms R J Boyce | Herbert Geer |
HIS HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the first defendant in August 2001, and over the course of his employment from 2001 to 2010.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is injury to the lumbar spine, namely a prolapse to the L5-S1 disc with nerve root compression and aggravation of degenerative changes to the back.
6 The plaintiff relied upon four affidavits: three sworn by the plaintiff on 29 August 2011, 20 March 2012, and 10 May 2012, and an affidavit of Marijan Raaspudic sworn 14 November 2012. The plaintiff was cross-examined. In addition, both parties relied upon medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Issues
7 Counsel for the defendants informed the Court that there were two issues:
· First, whether or not there is an ongoing role played by injuries caused by employment from 2001 and whether or not the condition is now attributable to the back injury of 1991
· Secondly, it is a range case. That is, do the consequences satisfy the statutory test?
Relevant Legal Principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
9 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a) “the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the first defendant;[2]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) “the consequences” to the plaintiff of his impairment to the lumbar spine in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked, and as being at least very considerable”;[4]
[3]Barwon Spinners (supra) at paragraph [33]
[4]s134AB(38)(b) and (c)
10 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[5]
[5]s134AB(19B) and 38E of the Act
(a) that at the date of hearing he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[6]
[6]s134AB(38)(e)(i) of the Act
(b) that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more,[7] and
(c) that even with rehabilitation and retraining he will still sustain a loss of 40 per cent or more.[8]
[7]s134AB(38)(e)(ii) of the Act
[8]s134AB(38)(a) of the Act
11 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[9]
[9]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
12 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
13 The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
14 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[10]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[11]
[10]s134AB(38)(j) of the Act
[11] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
15 Section 134AB(38)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
16 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[12] and Grech v Orica Australia Pty Ltd.[13]
[12]supra
[13](2006) 14 VR 602
The Plaintiff’s evidence
Background
17 The plaintiff was born in Croatia. He is now sixty-one years of age. He is married and resides with his wife.
18 The plaintiff left school at the age of sixteen after completing Year 8, and then migrated to Australia in 1967.
The Plaintiff’s employment
19 Since 1970, the plaintiff has worked for a number of employers as a steel fixer. In the mid 1990’s, he commenced employment with the first defendant as a steel fixer and continued working with the first defendant until May 2010, when his employment was terminated.
20 In 1991, he injured his back whilst pushing a heavy timber platform which was part of a concrete formwork. He was treated by Mr Paul Burns who diagnosed an L5-S1 disc prolapse causing left sided sciatica. He recommended an epidural injection and medication. The plaintiff was off work for in excess of two years. The plaintiff commenced a common law action for damages which was settled.
21 The plaintiff said that prior to the 2001 injury he could perform his heavy work: he had the occasional twinge and took some medication. In August 2001, whilst at work, he was preparing a steel cage weighing 45 to 50 kilograms to place into a trench. As he was attempting to place the cage into the trench, he fell into the trench and the cage fell on top of him. He suffered back pain, cuts and bruises, and sought first aid and consulted his general practitioner, Dr Johnson. He complained of pain in his back and leg, and pain when walking and bending. He was prescribed medication for the pain and issued a certificate for incapacity.
22 The plaintiff was off work for a few weeks and returned to work on light duties for approximately three months. Because there were no light duties, he resumed his previous work, trying to avoid very heavy work. He enquired about light duties. He had trouble doing his work and had to take time off because of the back and leg pain.
23 He sought a second opinion from Dr Richard Siemienowicz at Gladstone Park, and continued to see Dr Johnson, who prescribed medication of Panadeine Forte and Voltaren. The plaintiff underwent exercises and physiotherapy.
24 Between 2004 and 2008, the plaintiff consulted Dr Johnson regularly, took medication, performed exercises and occasionally had physiotherapy treatment. He continued to work as a steel fixer but was working at a slower pace. The pain in his low back continued and went down his left leg. He consulted Dr Chan, who referred him for further x-rays, and he had approximately three weeks off work. He returned to Dr Siemienowicz, after Dr Johnson died, who prescribed two injections with limited success. On 6 April 2010 he sought a referral to Mr Wallace because of the back pain.
25 In May 2010, his work was terminated.
26 He was reviewed by Mr Wallace in May 2010, who performed an up-to-date CT and MRI scans of his spine.
Investigations
27 On 30 August 2001, a CT scan of the lumbar spine showed large left posterolateral disc protrusion at L5-S1 extending into the exit foramina core compressing the L5 nerve root.
28 In October 2002, a CT scan of the lumbar spine showed significant left paracentral focal disc protrusion at L5-S1 level.
29 In November 2002, an MRI scan of the lumbar spine showed two-level (L1-2 and L5-S1) disc degeneration with subtle small left paracentral disc protrusion at L5-S1 with superior migration of disc fragment and mass effect on the left S1 nerve.
30 In May 2010, an MRI scan of the lumbar spine showed features of epidural lipomatosis, becoming most prominent at and below the L5-S1 level. There was discogenic impingement on the under surface of the right L5 nerve in its foramen and proximal far lateral recess.
The Plaintiff’s medical reports
Dr David Wallace
31 In November 2002, Mr David Wallace, neurosurgeon, saw the plaintiff at the request of his general practitioner. He arranged an MRI scan of the lumbar spine. He was aware that the plaintiff had not improved with conservative treatment. He recommended surgery of a lumbar discectomy and nerve root decompression or a lumbar fusion procedure.
32 In May 2010, Mr Wallace reviewed the plaintiff and said he did not expect the plaintiff would be able to return to his former heavy job but could perform suitable light duties work.
33 In June 2010, Mr Wallace said the plaintiff suffered a lumbar disc injury at the L5-S1 level at work in September 2001, with aggravation of his injury two months before referral to him in November 2002. He said the plaintiff had reached the point where heavy physical work is not only unwise for him but is beyond his capabilities. It was Mr Wallace’s view that the plaintiff may require surgical intervention for relief of his intermittent severe sciatica. He said the plaintiff should be restricted to permanent light duties employment in the long term. He did not think the plaintiff’s condition would improve in the future and that, if anything, it was likely to deteriorate further. Further, the plaintiff would have extreme difficulty, with a long history of back complaint, in finding an employer who will give him employment irrespective of his impressive work record. It was his view that the plaintiff’s work between 2001 and May 2010 (when he was terminated) had aggravated his back injury.
34 In July 2012, Mr Wallace said the plaintiff suffered a significant L5-S1 disc injury in 1991 which did not, after a satisfactory period of recuperation on conservative treatment, prevent him from getting back to very heavy physical work up until the time of his retrenchment. It was his opinion that the injury sustained in 2001 and the heavy physical work the plaintiff performed until retrenchment were responsible for his current back condition and his inability to work.
Dr R F Johnson
35 In May 2006, the plaintiff’s general practitioner, Dr Johnson, said the plaintiff had suffered with chronic low-back pain and left-sided sciatica since the early 1990’s. His back pain was aggravated by the accident in August 2001 and since then, the plaintiff has suffered constant severe low-back and left leg pain and stiffness. He said his ability to continue to work would have been impossible without his use of Panadeine Forte. He said he did not believe the plaintiff had developed a dependency to the medication, as he did not require maximum doses during vacations.
36 In 2006, the plaintiff was taking analgesics in the form of Panadeine Forte – eight tablets per day.
Dr R Siemienowicz
37 In June 2006, Dr Richard Siemienowicz, general practitioner, reported to the defendants’ insurer. He said the plaintiff consulted him two weeks after the injury at work in August 2001. The plaintiff returned to light duties and suffered a further injury to his back as a result of strenuous pulling. It was his view the plaintiff’s injuries were work related. The plaintiff required analgesia.
38 In November 2010, Dr Siemienowicz reported to the plaintiff’s solicitors that in April 2010, the plaintiff was referred to Mr Wallace, neurosurgeon, as his back was giving him trouble.
39 In September 2011, Dr Siemienowicz said the plaintiff’s medication was making the plaintiff dizzy and unwell and, as a result, he was driving locally only. He was on a high dose of Panadeine Forte and Voltaren.
40 In 2012, Dr Siemienowicz said the plaintiff suffered a significant low-back injury and would never return to work. He cannot read, write or speak English fluently. He suffers pain and cannot do much around the house, for example gardening and mowing. When he walks he has to stop and rest. He cannot drive, stand up or walk for long and his social life had been affected. Based on the plaintiff’s history, results of radiology and the opinion of Mr Wallace, it was his opinion that the injury sustained in 2001 was responsible for the plaintiff’s present back condition.
Dr David Lee
41 In July 2010, Dr David Lee, general practitioner, said the plaintiff had been seeking treatment from his clinic since February 2009. The plaintiff was in constant back pain and required up to eight Panadeine Forte per day. The plaintiff’s back pain had worsened in the last six months and he had been reviewed by Mr Wallace.
Mr Kevin King
42 In March 2012, Mr Kevin King, orthopaedic surgeon, saw the plaintiff at the request of the plaintiff’s solicitors. Mr King obtained a history that the plaintiff’s health had been good apart from some minor laceration to his left ear and left eye region, and that he was injured at work in September 2001. He said that the plaintiff told him that between 2001 and 2010, he regularly lost time from work during periods of flare-ups of his back and leg pain, but continued working most of each year on light duties with considerable difficulties.
43 Mr King obtained a history that the plaintiff was prescribed OxyContin. He had been treated by Mr David Wallace, neurosurgeon, who recommended surgery, which the plaintiff refused. When examined, the plaintiff was taking Panadeine Forte and Voltaren. The plaintiff complained of constant aching pain in the low-back region, always present, fluctuating in intensity, which he described as moderate to severe, with periodic severe flare-ups, constant aching pain in the left buttock, thigh and calf radiating into the left foot, always present and always of a moderate to severe degree. It was Mr King’s view that the plaintiff sustained a severe injury to his lower back in September 2001, which he described as injuries to lumbar discs with a large disc protrusion at L4-5 in particular, and clinical signs of radiculopathy involving both L5 and S1 nerve roots when examined. Mr King described the plaintiff as chronically and severely disabled in the lumbar spine as a result of his work injury in September 2001.
44 Mr King considered the medial reports (both treaters and medico-legal) relating to the plaintiff’s 1991 back injury. He said those reports, together with the reports about the 2001 injury and the fact that the plaintiff returned to heavy work after the 1991 injury, support a diagnosis of an acute disc prolapse at the L5-S1 disc.
45 In August 2012, Mr King was provided with the Medical Panel report of 15 August 2011 which alerted him to the fact that the plaintiff had an earlier injury in 1991. Mr King said the plaintiff should have informed him of his earlier injury in 1991. He accepted that the plaintiff had a disc prolapse in 1991 with severe left-sided sciatica. Surgery was contemplated at the time but the plaintiff refused and seemed to have made a full recovery within twelve to eighteen months and returned to his heavy manual duties without trouble for the next seven or eight years. Mr King said the fact that after 1991 the plaintiff was left with an absent left ankle jerk was of no particular significance in the absence of pain. The plaintiff then had an injury in 2001 which he described as “an acute injury”. Mr King relied upon the treating surgeon and other treating doctors, supported by x-ray evidence which disclosed evidence of a massive new disc protrusion related to the plaintiff’s injury at work in 2001. Mr King said the 2001 injury was a new episode causing severe sciatica. Mr King said the plaintiff’s present problems stemmed from the 2001 injury. Accordingly, the view he expressed in his original report was unchanged.
46 In December 2012, Mr King said he had gone through the plaintiff’s history with him and accepted it was a genuine mistake that the plaintiff forget to tell him of the 1991 injury. He said it was obvious that the plaintiff had not concealed the information from anyone else. His opinion remained unchanged from the August 2012 report.
Dr H Sutcliffe
47 In May 2012, Dr Sutcliffe, occupational physician, reviewed the plaintiff at the request of the plaintiff’s solicitor. Dr Sutcliffe obtained a history of the 1991 injury when the plaintiff said he was off work for twelve months and returned to his normal duties after a period of two years. It was Dr Sutcliffe’s opinion that the plaintiff suffered an onset of disc degeneration at L5-S1 as a result of his employment in 2001. As a result, he sustained left S1 radiculopathy and has had intermittent pain since in the low back and left leg and now continues with constant pain, resulting in limitation of his capacity for activities of daily living and now with loss of capacity for employment. She said he had no capacity for alternative or suitable jobs, taking into account the nature of his incapacity, his age, background, English literacy, education and work experience. She accepted the plaintiff had sustained a very significant disability as a result of the injuries sustained, which would continue into the future. It was her view that the plaintiff’s back condition is a result of the injury sustained in his employment in 2001.
The Defendants’ medical evidence
The 1991 injury
48 In June 1991, Mr Keith L Hayes, orthopaedic surgeon, saw the plaintiff in respect to the 1991 injury. He said the plaintiff could return to work with restrictions and should not be involved with any work which would entail any lifting in excess of 10 kilograms or any considerable bending or twisting of his back or any heavy pushing or pulling for the next twelve months.
49 In June 1991, Mr Noel Sherson, general and gastroenterological surgeon, said the plaintiff had suffered a prolapsed intervertebral disc, causing him nerve root compromise. He said his immediate prognosis was very poor and it may be months before the plaintiff recovers sufficiently to resume light work and that there may be a need for surgery. He said the plaintiff was incapacitated with his pre-injury duties as a result of the injury.
50 In July 1991, Mr Paul Burns, orthopaedic surgeon, said the plaintiff would benefit from an epidural injection and if that did not provide significant relief, the plaintiff may require a surgical discectomy.
51 In October 1991, Mr Noel Sherson said the plaintiff had not been able to resume any form of employment and that he suffered an L5-S1 prolapse with nerve root symptoms. He said spontaneous recovery is possible but the process is very slow. He thought the plaintiff was unable to work for at least another three months, possibly a year, and he recommended a laminectomy. He said the plaintiff will have permanent impairment and that it was improbable that the damaged nerve root will recover completely, even if the offending disc is removed. The plaintiff’s symptoms were similar to previously. He thought there were signs of improvement on the clinical examination but he said the plaintiff was not fit for his previous occupation and would never be able to return to that work again.
52 In July 1992, Mr Michael Shaw, surgeon, said the plaintiff was not fit for work, and he doubted if any pre-injury work would be available for the plaintiff.
53 In October 1994, Mr Burns reviewed the plaintiff and confirmed that the plaintiff was still having problems with his back and left leg pain and had not been able to return to work despite an ongoing exercise program.
The 2001 injury
Mr Ian Jones
54 In November 2011, Mr Ian Jones, orthopaedic surgeon, examined the plaintiff at the request of the defendants’ solicitor. Mr Jones obtained a history that following the injury in 1991, the plaintiff required medication for approximately two years, but that he recovered fully to one hundred per cent. Between 1991 and 2001, he received no treatment.
55 Mr Jones said the plaintiff suffered form some lunar back pain and left-sided sciatic symptoms. It was his opinion that the pain was due to a disruption of the L5-S1 disc impinges on the adjacent left S1 nerve root. He said the plaintiff has recovered form the aggravation.
56 Mr Jones said the August 2001 injury had the capacity to aggravate the plaintiff’s previous low-back problems. However, his opinion was that the plaintiff’s current condition no longer related to the 2001 injury, but was caused by the 1991 injury. He said there appeared to have been no change in the plaintiff’s physical findings following the August 2001 injury.
57 Mr Jones’ opinion was that the August 2001 injury had not compromised the plaintiff’s employment capacity. He said the plaintiff had recovered from the 2001 injury and would be able to undertake the duties he was performing prior to the 2001 injury.
58 He said the plaintiff has a permanent incapacity for heavy physical work, but the incapacity is not related to the 2001 injury. He said the plaintiff requires restrictions of avoiding heavy lifting and frequent bending.
Mr Rodney Simm
59 Mr Rodney Simm, orthopaedic surgeon, did not examine the plaintiff, but provided a report based on his review of material relating to the 1991 injury. He reviewed the handwritten medical records of the plaintiff’s general practitioner, Dr Johnson, of the Tullamarine Clinic, and the medical reports of Mr N Sherson, Mr Peter Burns and Mr M Shaw.
60 The report was of limited value as Mr Simm was not informed of the 2001 injury.
The Plaintiff’s credit
61 The plaintiff was asked to recall events over twenty years, which he found difficult. He was a poor historian. Accordingly, I will be assisted by the independent reports.
62 The plaintiff had poor English. On the second day, he was assisted by an interpreter. His evidence was difficult to follow, even with the assistance of an interpreter.
63 The plaintiff accepted that initially he did not tell Mr Wallace and Mr King about the first injury. He gave different reasons as to why he did not tell those doctors about the first injury. He told doctors that he forgot. He told the Court that the doctors did not ask him about any previous injuries.
64 The plaintiff’s evidence in other respects was consistent with what he told the doctors whom he saw. Given his poor recollection and his difficulty in assisting the Court, I place greater weight on his evidence when it is supported by independent witnesses.
Analysis of the evidence
65 I accept the plaintiff suffered a compensable injury to his lumbar spine in August 2001. This was not in dispute. What was in dispute was whether the plaintiff’s current presentation was as a result of the 2001 injury or a result of a previous back injury that occurred in 1991.
66 Counsel for the defendants submitted that, based on the evidence, the plaintiff had ongoing restrictions and complaints from the 1991 injury, and the consequences he suffers now are related to the 1991 injury.
67 The majority of the medical witnesses[14] accepted that the plaintiff’s current consequences were attributable to the 2001 injury. Mr Wallace said the injury in 2001 and the heavy physical work the plaintiff performed up until his retrenchment in 2010 was responsible for the plaintiff’s current back condition and his inability to work. Mr Wallace accepted the plaintiff suffered a significant injury in 1991, but said that with a period of recuperation and conservative treatment, the plaintiff returned to heavy physical work.
[14]Mr King, Mr Wallace and Dr Sutcliffe
68 Mr King, who saw the plaintiff on two occasions, said it was his overall impression that the plaintiff made a good recovery from the 1991 injury. The fact that he was left with an absent left ankle jerk was of no particular significance in the absence of pain. Mr King said the plaintiff suffered an acute new injury in 2001. Mr King accepted that the pre-existing condition of 1991 would have predisposed him to a further disc prolapse in 2001; however, he said the plaintiff was chronically and severely disabled as a result of the 2001 injury.
69 Dr Sutcliffe’s opinion was that the plaintiff sustained an onset of disc degeneration of the L5-S1 as a result of the accident in August 2001 and continuing from 2001 to 2010 when he ceased work.
70 The plaintiff’s evidence was that the injury in 2001 was worse than the injury in 1991.
71 Mr Jones was the only medical witness to attribute the plaintiff’s current presentation to the 1991 injury. He accepted the August 2001 injury may have aggravated the 1991 injury, but said the plaintiff had recovered from the aggravation and that his current symptoms were caused by the 1991 injury.
72 Mr Simm did not examine the plaintiff, was not informed of the second injury and answered questions based on the medical reports relating to the 1991 injury only. Mr Simm’s report did not assist me in my deliberations.
73 I reject the submission of counsel for the defendants that the plaintiff’s current consequences are related to the 1991 injury. I prefer the evidence of Mr Wallace, Mr King and Dr Sutcliffe over the evidence of Mr Jones. Mr Jones saw the plaintiff on one occasion, whereas Mr Wallace and Mr King saw the plaintiff on a number of occasions. Further, Mr Jones’ report made no reference to the fact that the plaintiff had been performing heavy physical work for a number of years leading up to the 2001 injury.
74 In addition, counsel for the defendants submitted that because the plaintiff had not changed his medication after the 2001 injury and had taken more time off work following the 1991 injury, the current consequences were due to the 1991 injury. Counsel for the defendants failed to explain how that demonstrated that the 1991 injury was the cause of the plaintiff’s consequences and the submission was not supported by the medical evidence.
75 Accordingly, I accept that there is a causal relationship between the 2001 injury and the consequences the plaintiff is currently suffering.
Over the course of employment
76 Counsel for the plaintiff opened the Court on the basis that the plaintiff suffered injury in the course of his employment with the first defendant in August 2001 and between 2001 and 2010, when his employment was terminated.
77 Counsel for the defendants submitted that the plaintiff is confined to the August 2001 injury as his Form A and the Proposed Statement of Claim which accompanied the Form A deals only with the August 2001 injury. Counsel said the case had been prepared on that basis. I was not told what prejudice the defendants have suffered, if any.
78 The plaintiff was employed by the same employer through the period that the claimed injury occurred. Consequently, there is no prejudice to the defendants arising from potential liability of other employers.
79 Since May 2011, Mr Wallace has indicated in his reports that he believed the plaintiff’s work in August 2001 and between 2001 and when he was terminated in 2010, aggravated his back injury. This was supported by Dr Sutcliffe in her report of January 2013.
80 The Proposed Statement of Claim included in the Court Book was dated March 2012, which pleads the August 2001 injury and an injury over the course of employment between August 2001 and May 2010.
81 I am satisfied that the defendants have been “on notice” as early as May 2011 that the plaintiff may rely upon the course of employment period, but should have been aware by March 2012. Further, there was no prejudice disclosed by the defendants. Accordingly, I reject the submission of counsel for the defendants that the plaintiff is confined to the August 2001 injury.
The aggravation
82 The majority of the medical practitioners accepted that in 2001 the plaintiff suffered an aggravation of the 1991 injury[15].
[15]Mr Jones, Mr Wallace and Dr Johnson
83 In respect to an aggravation to a pre-existing injury, Southwell and Teague, JJ, in Petkovski v Galletti,[16] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:[17]
“The question of the relevance of the existence of a pre existing degenerative condition in the applicant's spine was raised both in the court below and in this court. It was submitted in both courts for the respondent that a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment; if that additional impairment was not ‘serious’, so it was said, then leave must be refused.”
[16][1994] 1 VR 436
[17](ibid) at 443
84 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve serious long-term impairment (or loss) of a body function.
85 Accordingly, I must consider what the evidence discloses as to the plaintiff’s prior condition, and determine whether the additional impairment resulting from the August 2001 injury and the period of employment from 2001 until 2010 is serious.
86 The evidence was that the plaintiff had suffered a previous back injury at work in 1991: namely, an L5-S1 prolapse and left leg pain.
87 In respect of the 1991 injury, Mr Keith Hayes, treating orthopaedic surgeon, thought the plaintiff’s prognosis was good and that his injury would subside within the next seven to eight weeks. He imposed restrictions on the plaintiff’s work for twelve months. Mr Sherson, general and gastroenterological surgeon, said there were signs of improvement but thought the plaintiff was permanently unfit for his previous occupation. In 1992 Mr Shaw, surgeon, said the plaintiff’s total incapacity would continue for a further three or four months. In October 1994, Mr Burns, treating orthopaedic surgeon, reported that the plaintiff was continuing to have problems with his back, and left leg pain, and he had not been able to return to work.
88 Dr Johnson, general practitioner, recorded that the plaintiff had suffered with chronic low-back pain and left-sided sciatica since the early 1990s. The medical records of Dr Johnson confirm that the plaintiff was being prescribed Panadeine Forte prior to the August 2001 injury.
89 The plaintiff’s evidence was that prior to the August 2001 injury he had the odd day off work because of pain. He said he took medication, which was prescribed by his general practitioner, but was able to return to work performing heavy manual work for in excess of five years without significant problems.
90 I accept that by August 2001, the plaintiff had suffered a significant injury to his back at work in 1991, for which he had had over two years off work.[18] However, by August 2001, he had been employed in full-time heavy physical work, working as a steel fixer for more than five years. He required some medication and had the odd day off work because of flare ups. Prior to August 2001 the plaintiff experienced low-back pain with left-sided sciatica.[19]
[18]The plaintiff’s evidence was that he returned to work in 1994, but Dr Johnson’s records noted the plaintiff returning to work in 1996.
[19]2006 medical report of Dr Johnson
91 The Court must examine the consequences of a physical impairment in the separate context of:
(a)pain and suffering; or
(b)loss of earning capacity.
92 The provisions of s134AB(38) of the Act provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[20] The sub-section then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[21] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[22]
[20]s134AB(38)(b), (c) and (d)
[21]s134AB(38)(e), (f) and (g) of the Act
[22]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
93 Accordingly, it is appropriate for me to look, first, at the test for loss of earning capacity which must be satisfied by the plaintiff. In determining the plaintiff’s impairment I must make the assessment as at the date of hearing. Accordingly, I rely upon the evidence of the plaintiff and the medical practitioners. I place greater weight on the more up-to-date evidence of Mr King and Mr Wallace.
The narrative test – loss of earning capacity
94 The plaintiff’s evidence was that the injury in August 2001 was worse than the previous injury in 1991. He said he returned to work a few months after the 2001 injury. He was provided with light duties for a short period but was then told there were no light duties available. The plaintiff’s evidence was that he was unable to perform the heavy duties that he performed prior to the 2001 injury because of the pain. After the 2001 injury he required more time off work because of the pain, he tried to avoid the heavy work and was assisted by his work colleagues, who performed the heavier work. Further, the plaintiff requested light duties, which were not provided.
95 The medical evidence, supported by x-ray and treating doctors, was that in 2001 the plaintiff suffered a significant left paracentral focal disc protrusion at L5-S1. In 2006, Dr Johnson reported that since the August 2001 injury the plaintiff has suffered constant severe low-back and left leg pain and stiffness. He said the plaintiff’s ability to continue working would be impossible without the use of analgesics in the form of Panadeine Forte.
96 Mr Jones noted that the plaintiff was limping on his left leg, that the lumbar back pain and left-sided sciatic symptoms and signs were consistent with a disruption of the L5-S1 disc impingement on the adjacent left S1 nerve root.
97 All doctors who expressed a view on the plaintiff’s capacity to work accepted the plaintiff could not return to his former employment as a steel fixer. Mr Jones said the plaintiff had a permanent incapacity for physical work. Mr King said the plaintiff was permanently unfit to return to heavy manual work. He thought the plaintiff could probably manage light duties, which he noted were withdrawn. Mr Wallace said the plaintiff’s injury prevented him from useful heavy employment. At best he was capable of light duties. However, the reality was, because of his long history of back pain, the plaintiff was unlikely to find an employer who would give him such employment. Dr Sutcliffe said the plaintiff had no capacity for employment. He had no capacity for pre-injury employment now or into the foreseeable future. He had no capacity for alternate or suitable duties taking into account the nature of his incapacity, his age, background, English literacy, education and work experience. Dr Sutcliffe expressed the view that this would continue for the foreseeable future.
98 The plaintiff is almost sixty-two years of age, having commenced work in the late 1960s. His work history has mainly been as a steel fixer and tunneller. The plaintiff impressed me as a man with a keen work ethic. I gained the impression that he enjoyed his work. A number of the doctors commented upon his impressive work record. He told the Court he thought he could perform light work for 2, 3 or 4 hours, one or two days a week.
99 I accept the plaintiff was stoical in relation to his attitude to work; namely he continued to work despite the level of pain he suffered. The plaintiff’s stoicism cannot hide the consequences of the injury to this plaintiff. I am permitted to take into account the plaintiff’s stoicism.[23]
[23]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at [37]; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at [47]
100 I accept that the consequences the plaintiff described arose as a result of the August 2001 work injury and his employment between 2001 and 2010.
101 Given all the evidence, and the fact that the plaintiff has performed manual work for his entire working life, has no transferable skills or training, I am satisfied that he is unable to return to any form of employment. This represents a significant loss to the plaintiff both with respect to his enjoyment of life and self esteem.
102 No doctor suggested that the plaintiff’s condition would improve. In fact, Mr Wallace said it would deteriorate. Given the medical evidence and that the injury has continued since 2001, I accept that the plaintiff’s injury is permanent.
103 I am satisfied that it is fair to describe the consequences of the plaintiff’s loss of earning capacity as being “more than significant or marked” and properly regarded as “considerable” when judged by a comparison with other cases in the range. The plaintiff therefore satisfies the narrative test. In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments.[24] This is supported by the medical opinions. In reaching this view, I have only taken into account the plaintiff’s physical injury.
[24]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 at [44]
104 In addition to In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
The statutory test – loss of earning capacity
105 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that he has a permanent loss of earning capacity of 40 per cent or more.[25]
[25]s134AB(38)(e)(i) and (ii)
106 The plaintiff’s present earnings from personal exertion are nil.
107 All doctors who expressed a view on employment said the plaintiff could not return to his pre-injury or suitable employment due to his injury. I have found his restrictions are permanent.
108 I am also required to consider issues of re-training and rehabilitation pursuant to ss(g) of the Act. None of the medical reports suggested that further rehabilitation would assist the plaintiff. Given the plaintiff’s age and language skills I am satisfied that the plaintiff has no prospect of retraining and rehabilitation that will enhance his earning capacity.
109 Based on the plaintiff’s presentation in Court, his age and the views expressed by the medical experts, the plaintiff has suffered a total loss of earning capacity. Accordingly, I am satisfied that he will continue to have a loss of earning capacity of 40 per cent or more.
110 Therefore, I am satisfied that the plaintiff satisfies the 40 per cent requirement and has sustained an “injury” within the meaning of s134AB of the Act to his back.
111 Having made these findings, it is appropriate to make an order granting the plaintiff leave to commence proceedings at common law seeking damages for pain and suffering and loss of earning capacity as a result of employment with first defendant after October 1999 in respect to the low back.
112 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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