Zurita v Wilke and Company Pty Ltd and VWA
[2009] VCC 377
•22 April 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-07-03598
| HECTOR ZURITA | Plaintiff |
| v | |
| WILKE & COMPANY PTY LTD & | Defendants |
| VICTORIAN WORKCOVER AUTHORITY |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27, 28 & 29 January 2009 |
| DATE OF JUDGMENT: | 22 April 2009 |
| CASE MAY BE CITED AS: | Zurita v Wilke & Company Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0377 |
REASONS FOR JUDGMENT
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Catchwords: s.134AB Accident Compensation Act 1985 – serious injury – aggravation of
pre-existing disease – lumbar spine
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Mactiernan | Davies & Co. |
| For the Defendant | Mr D Myers | Herbert Geer |
| Ms C Boyle | ||
| HER HONOUR: |
Introduction
1 Between 1976 and November 1999 the plaintiff was employed by the first defendant in its printing business. By Originating Motion filed on 14 September 2007, pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”), the plaintiff seeks leave to commence proceedings for damages in respect to injury to his lumbar spine suffered in the course of his employment with the first defendant on or about 22 October 1999.
2 The application is made under paragraph (a) of the definition of “serious injury”, that is serious permanent impairment or loss of the lumbar spine by reason of permanent aggravation of pre-existing degenerative disease. The particulars of injury in the Originating Motion (as amended) relevantly describe the back injury in the following terms:
“Annular tear to the L5/S1 disc.
Intervertebral disc disruption at L4/5 and L5/S1.
Aggravation, exacerbation, acceleration and/or deterioration of degenerative disc disease and Ligamentum flavum hypertrophy resulting in acquired spinal canal stenosis.
Bilateral sciatica.
Musculo-ligamentous injury to the structures surrounding the lumbo-sacral spine.
Oesophagitis and gastritis, secondary to the ingestion of anti- inflammatories and analgesics.
…”
3 The plaintiff acknowledged a pre-existing degenerative condition and episodes of back pain prior to 20 October 1999, none of which he said prevented him performing the heavy physical duties he was performing on 22 October 1999 when, whilst pushing a reel weighing between 500kg and 900kg and cutting the cardboard cover, he suffered severe and disabling back pain which caused him to cease his shift and eventually, in November 1999, to cease employment.
4 To succeed the plaintiff must prove a compensable injury and that the consequences of impairment of his lumbar spine (that is, pain and suffering and pecuniary loss consequences) are more than “significant” or “marked” and at least “very considerable”.
5 The decision of the Court of Appeal in Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 explains the correct approach to the statutory formulation for determining an application for leave to commence proceedings for damages. In summary, the plaintiff must establish:
(a)
a compensable injury after 20 October 1999 which by definition includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease;
(b) the nature of the injury; (c)
the consequences at the date of hearing, in this instance, both pain and suffering and pecuniary loss, to which compensable injury materially contributes; and
(d)
that those consequences are serious in the sense that they are “very considerable” and permanent.
The areas of dispute
6 These were summarised by the defendants’ counsel as follows:
(i)
the plaintiff suffered a progressive deterioration of his lumbar spine which was symptomatic for some three years prior to him ceasing employment;
(ii)
the impairment-related consequences of which the plaintiff now complains are referrable to this progressive condition not any incident of aggravation post-20 October 1999;
(iii)
no aggravation injury was suffered on 22 October 1999 and if it was the injury is not a serious injury for the purposes of the Act.
7 Central to the determination of this application is the dispute as to whether an incident of compensable injury occurred on 22 October 1999. This was driven by the inadequacy of and, in some cases, the inconsistencies between the histories given by the plaintiff and by a lack of detailed documentary history. However, it was also driven by the defendants’ belief that many years after he was certified as unfit for work in November 1999, the plaintiff, who some medico-legal experts thought exaggerated his symptoms, was guilty of tailoring the facts to bolster a claim that he suffered a compensable aggravation injury to his lower back after 20 October 1999.
8 As far as I can tell from the materials tendered, in the years since about November 1999, the plaintiff was represented by two firms of solicitors. In paragraphs 6 and 7 of his first affidavit he relevantly said:
“(6)… My lawyers have told me that to get compensation for this claim I must be able to prove that I had my injury after 19 October 1999. Whilst I was in conference with my lawyer we looked at the calender (sic) for 1999. Looking at the calender (sic) for 1999 I believe that the main problem with my back happened on 22 October 1999. I say this because I know the accident happened on the Friday when I was working nightshift. When I was working at the company I worked 3 rotating shifts. When I worked night shift I worked 6 a.m. to 6 p.m. on Mondays and Tuesdays and 10 p.m. to 6 a.m. on Wednesdays and Thursdays. When working a day shift I had Monday off, I worked 6 a.m. to 6 p.m. on Tuesdays, and from 6 a.m. to 2 p.m. on Wednesdays and Thursdays, and 6 a.m. to 6 p.m. on Fridays. When working the afternoon shift I worked from 6 a.m. to 6 p.m. on the Monday, had Tuesday off, worked from 2 pm. to 10 pm. on the Wednesdays and Thursdays and 6 p.m. to 6 a.m. on the Friday. The afternoon shifts were followed by the dayshifts. I also often worked overtime on the weekends.
(7) I must have been working the afternoon shift when I had the bad pain in October 1999. It was about 8 o’clock at night and I was doing my normal job. I had already set up some reels on that shift. The bad pain happened when I was cutting the cardboard cover off the end of the reel. To do this job I used a sharpened spatula, which we made at the factory. This was like a very strong knife. I didn’t have an accident as such, I was just doing my normal job. I was standing in front of the reel at the end of the reel, and with my right hand holding the spatula I was cutting through the cardboard and at the same time was pushing the huge reel with my left hand, and as I was pushing the reel I dragged the knife through and down the cardboard so that my back was bent. After I got the pain I could hardly straighten up. I told Joe Zuscak, the No. 1 Printer, that I had back pain and I couldn’t do any more work. He sent me to the office to see the Supervisor Peter Hawke. The Supervisor asked me whether I had someone who could pick me up, and I called my daughter from his office. The first aid centre was not open during nightshift. This was the first time I had ever had to leave work because of the pain, but there had been other times when I had had pain which stopped me going to work. My daughter came and picked me up and I had the weekend off work and when I went back to work I still had the pain and it was getting worse while I was working. I didn’t go back to Dr Mazzoni at that time because I thought he was just going to tell me it was a muscle pain again. After a couple of weeks I went to see Dr Patricia Vicente, because I was getting worried that the pain wasn’t getting better and every day I was getting worse. Dr Vicente doesn’t look after Workcover patients and she told me to go to another doctor. I went to see Dr Michael O’Toole for the first time on 10 November 1999.”
9 In cross-examination the plaintiff explained that he first saw his current lawyer in 2006 at which time he received the advice which caused him to consult a calendar and, as is evident from other matters to which I will turn shortly, to consider the likely date and work shift on which he said he suffered a compensable aggravation injury. The preliminary question then is whether, on the whole of the evidence, the plaintiff has satisfied me that there is a proper factual basis for him asserting many years later that an incident of injury occurred on or about 22 October 1999? For the reasons set out in this Judgment below he did satisfy me as to this preliminary point and subsequently as to the additional matters required before granting a serious injury certificate.
10 In relation to the pecuniary loss claim the defendants concede that if the plaintiff suffered an aggravation injury on 22 October 1999, that is serious in its consequences, he is totally incapacitated for employment.
The evidence called and tendered
11 At hearing with the assistance of a Spanish interpreter, the plaintiff amended and otherwise deposed to the accuracy of his two affidavits, sworn 19 April 2007 and 11 September 2008, respectively. The plaintiff gave evidence and he was cross-examined.
12 The material tendered from the plaintiff’s Court Book consisted of: (a) an affidavit of his daughter Sarah Serrano, sworn 9 September 2008; (b) three pages extracted from his Passport; (c) copy photographs depicting reels of paper; (d) ten radiological reports, for dates ranging from 10 April 1997 to 10 April 2008 and a nerve conduction study dated 15 August 2008; (e) medical reports from treating doctors Dr White and Dr Michael O’Toole, Neurosurgeon Mr John Laidlaw and Chronic Pain Specialist Dr S Vallipuram; (f) a letter from Southern Health to the plaintiff’s solicitors and extracts from the records of Southern Health; (g) two reports from the Victorian Rehabilitation Centre Pain Management Unit; (h) medico-legal reports from Consultant General Surgeon, Professor Kenneth Myers, and Consultant Neurosurgeon, Dr Richard Bittar; (i) “Worker’s Claim for Compensation” form dated 14 December 1999, “Minutes of Consent Orders” (dated 31 August 2000) signed by Counsel appearing for the parties and a Medical Panel Certificate of Opinion dated 22 July 2005; and (j) extracts from the clinical records of: general practitioners Drs Mazzoni, Vicente and O’Toole (including a referral letter to Mr Laidlaw), the relevant parts of which were read into evidence. The plaintiff also tendered, from the Defendants’ Court Book, an addendum titled “Australian Standard Classification of Occupations (ASCO) Codes” and extracts from the employer’s leave records.
13 The defendants called no evidence and tendered the following documents from their Court Book: (a) Court documents consisting of a Complaint form filed at the Magistrates’ Court at Melbourne (dated 7 April 2004) and a Summons issued in the County Court of Victoria at Melbourne (dated 28 February 1986); (b) medico-legal reports of Occupational Health Consultants Dr Andrew Miller and Dr David Milecki, Orthopaedic Surgeons Mr Clive Jones, Mr Keith Elsner, Mr Gerald Moran and Mr Brian Davie, Specialist in Occupational Medicine Dr David Elder, General Surgeon Mr Robert Marshall, Consultant Psychiatrist Dr Timothy Entwisle; (c) a “Claim for Compensation for Permanent Disability” form (dated 28 February 2001) and an affidavit of the plaintiff (sworn 13 July 2001); (d) a “Worker’s Claim for Impairment Benefits Form” (dated 14 February 2007) and a one page document titled “Schedule of Injuries” (dated 14 February 2007); and (e) a statement of the plaintiff (dated 7 December 1999). The report of Dr Michael O’Toole, dated 22 January 2000, was tendered by the defendants from the plaintiff’s Court Book. The defendants also relied upon the “Worker’s Claim for Compensation” form and the extracts of the employer’s leave records tendered by the plaintiff.
14 The plaintiff explained that whilst he spoke English learned at work and had lived in Australia for many years, he did not speak English at home. Accordingly, in assessing his evidence at hearing and the histories reported, I have allowed for the plaintiff’s modest education and notwithstanding the presence of an interpreter what I perceived at times to be a lack of comprehension on the plaintiff’s part.
The plaintiff’s background
15 The plaintiff is 60 years of age having been born in Chile on 14 May 1948 where he received nine years of schooling before working monitoring grape crushing and then as a storeman in a tannery.
16 In 1974 at the age of 26 the plaintiff migrated to Australia where he worked for a short period with GMH and as a fruit picker. However, in 1975 he married by proxy and after his wife’s arrival in Australia in 1976, the plaintiff commenced his employment with the first defendant.
17 According to his affidavit evidence (as amended) for the first eight years the plaintiff worked as a sheet feeder, followed by two years as a stacker hand and lastly thirteen and a half years as a reel hand, work he said he was performing on 22 October 1999.
18 In paragraph three of his first affidavit the plaintiff described his duties as a reel hand in the following words:
“ … Part of my job as a reel hand involved pushing huge reels of paper, which I think weighed more than 500 kilograms, maybe up to 900 kilograms. The job was to push reels of paper weighing up to 900 kilograms over a concrete floor onto a swivel plate about 1/2 an inch to 1 inch above ground level and then turn the reel and push it off the swivel plate and roll the reel a couple of metres to another swivel plate. I would then turn the reel 45° and roll the reel off that plate onto the reel stand. I would load an average of 2 reels an hour. Each of the reels had a cardboard end which was about 4 foot in diameter and which had to be cut off before the reel could be used. After the cardboard end cover had been cut away and the reel had been pushed into position I would insert a 33 kg metal bar through the core of the reel. Slings were placed on the ends of the bar so it could be fitted to the overhead hoist.”
19 As I have already noted, the plaintiff acknowledged having suffered work- related back pain prior to 20 October 1999. For instance, in paragraphs 4 and 5 of his first affidavit he said:
“4. During my employment I had attended the first aid centre at work and doctors from time to time with back pain, and I was always told it as just a muscle. The first aid centre would put ice on my back and I would go back to work. I had the odd day over the years, maybe 2 days at times, but it wasn’t very much and I used my sick leave. I do not recall ever putting in a claim for compensation, until I finally ceased work in November 1999.
“5. Earlier in 1999 and before I went to Chile in September 1999, I saw Dr Mazzoni, at the Dandenong City Clinic, and he organised x-rays of my back. After looking at the x-rays he said there was nothing to worry about and after a couple of days off I went back to my normal work. I had seen Dr Mazzoni and other doctors at the Dandenong Clinic and they always told me my pain was muscle pain.”
20 I note that the extracts from clinical records and, in particular, the report from general practitioner, Dr White, one of a number of doctors who treated the plaintiff at the Dandenong City Clinic, tend to confirm these claims. For instance, Dr White refers to an attendance on 10 April 1997 on which date the plaintiff complained of “a tender lump over the right sacroiliac joint. He stated
that the area had become more painful over the previous 12 months and that
the pain was radiating to the right leg”. An x-ray of the plaintiff’s lumbar spine on that occasion was said to be “normal” apart from noting “a little early end plate degenerative change superiorly at L3” and the plaintiff was prescribed Surgam (a non-steroidal anti-inflammatory drug).
21 The next occasion on which the plaintiff presented complaining of back pain was on 17 March 1998 which was recorded as having been precipitated by lifting a heavy weight at work on the previous day. On this occasion the doctor diagnosed muscle strain, for the treatment of which he prescribed the anti-inflammatory medication Brufen, and he certified the plaintiff as unfit for work for one day.
22 The last recorded attendance for treatment of back pain prior to 20 October 1999 was on 14 July 1999 when the plaintiff apparently complained of “low
back pain for two days. His work entailed lifting a 30kg load every hour. On examination he was found to have a full range of straight leg raising to ninety
degrees bilaterally”. According to Dr White, x-rays showed “only mild osteoarthritis of the lumbar spine” and he diagnosed a soft tissue injury for the treatment of which he prescribed Voltaren (that is, non-steroidal anti- inflammatory medication).
23 Whilst acknowledging an earlier history of back pain and treatment, this was a matter about which in cross-examination at times the plaintiff provided either non-responsive or contradictory answers.
24 In summary then, during cross-examination, amongst other things:
(a)
the plaintiff, whilst agreeing that he was injured in a motor vehicle accident in 1985, at first said that he thought that the injury suffered was to his neck rather than his lower back. However, I note that the pleading accompanying his claim for damages, arising out of the motor vehicle accident, particularised injury which included “[s]oft tissue injury to the Lumbar Spine, Cervical Spine …”. Allowing for this evidence and the passage of time, I think it unremarkable that the plaintiff now says that he cannot remember “having said that”;
(b)
without being certain as to how often, the plaintiff agreed that prior to October 1999 he attended the Dandenong City Clinic for treatment of back pain;
(c)
without being sure as to when this came on, the plaintiff agreed that he told Occupational Health Specialist, Dr Milecki (who, at the request of the insurance agent, examined the plaintiff on 13 December 1999), that leg pain (that is, in his right leg) had come on gradually “ … but was unsure if it was closer to 3 years ago or more recently”. In these circumstances, I found his response at hearing to further questioning – “ … I can't tell you yes or no” – plausible;
(d)
the plaintiff said that prior to 22 October 1999 he sometimes took one to two days sick leave per year. At first he denied taking time off because of back pain but subsequently agreed that “maybe one or two days” or sick leave were taken because of back pain. The plaintiff was taken to extracts from the first defendant’s leave records for the years 1996 to 2002 inclusive. In summary, the plaintiff explained that typically beyond the one to two days mentioned he used sick leave days “ … because I had things to do”, that is he used this time as “holidays”.
25 My impression of the evidence relating to any pre-existing back pain or symptoms is that the plaintiff adopted a somewhat simplistic view of his circumstances: from time to time in association with his heavy work duties prior to 22 October 1999, his back was symptomatic and he required treatment from either the first defendant’s health nurse or a doctor. However, none of his back pain prior to 22 October 1999, so he said, compared to or was as disabling as the back pain on 22 October 1999 which came on whilst performing his normal duties but caused him to end his shift early and eventually to give up work.
26 The difficulty confronting the plaintiff is that save for a couple of exceptions from November 1999 until recently, the histories recorded by doctors, if accurate, do not specifically identify any incident of severe back pain occurring in October 1999 and none of these histories mentioned 22 October 1999.
The circumstances of the injury
27 Between September and October 1999 the plaintiff took leave and travelled to Chile. The trip was apparently prompted by the illness of his father-in-law. In any event, according to his second affidavit which relevantly amended this aspect of his earlier affidavit, when the plaintiff returned to work, between Monday 11 October 1999 and 15 October 1999, he:
“ … was asked by the Supervisor to work as a Stacker Hand because there was nothing else for me to do as the printing machine I used to operate known as “Harry 2” was being dismantled. Working as a Stacker Hand required me to lift bundles of publications in handfuls from the hopper and place them on a pallet. The duties of a Stacker Hand are different and requires (sic) manoeuvring, carrying and lifting bundles of publications and placing them on pallets. The Reel Hand Operator puts the reels of paper at one end of the printing machine and the Stacker Hand receives the printed roll of paper at the other end of the printing machine. I had worked as a Stacker Hand 13 years before the incident and then again on the first week after returning from Chile.”
28 The plaintiff’s evidence in paragraphs 5, 6 and 8 of his second affidavit also appears to seek to dispel any suggestion that at the relevant time the plaintiff was working as a Stacker Hand by explaining that:
“5. During the second week of my return, ie, from Monday 18 October 1999 to 22 October 1999, I was required to operate a printing machine similar to the “Harry 2” (which was the printing machine I used to operate) because the Reel Hand Operator in charge of that machine was on leave and also because the “Harry 2” was at the time dismantled. I had worked on this printing machine all week prior to injuring my back. I had to do the same work I normally do whilst operating this printing machine.
6. A new printing machine had arrived at the premises before I left for Chile but because I had been away, someone else was trained to operate it and this is why I had to work on the other printing machine when I injured myself.
…
8. I recall on the evening of Friday 22 October 1999 somewhere between 7.00pm and 7.30pm I suffered injury whilst cutting cardboard off the reel. I told Joe Zuscak that I had pain in my back and that I felt something had “pulled off” in my back whilst cutting the cardboard off the reel and he told me to advise the Supervisor in the office. I went to the office and told Peter, the Supervisor that I had a sore back from cutting cardboard and he asked me if there was anybody I could call. I used the office phone to phone home and I don’t remember if I spoke to my wife or daughter but it was my daughter who came to collect me and we left at approximately 8.00pm…
29 In her unchallenged evidence, without being able to nominate the date, the plaintiff’s daughter, Sarah Serrano, recalled that:
“2. … late in 1999 driving to my father’s place of employment, Wilke & Company Pty Ltd in Browns Road, Clayton to pick up my father from work. I specifically recall driving to my father’s work to pick him up because it was something which I never did. At this time, I was living at home and I cannot recall whether my mother or I took the phone call to pick him up. I do recall however that I was driving to his work to pick him up because he was unwell.
3. I recall that when I picked up my father from work, it was evening and it was dark. Despite the fact it was late, I picked up my father well before his shift had finished. Had my father been able to finish his shift, he would have driven himself home in his own car which he had driven to get to work earlier that day. My father would normally get home at 6.30am or whenever he finished his evening shift.
4. I recall that when I was driving my father home from work on this occasion, that he looked unwell. He was holding onto the grip which is suspended from the ceiling of the car. I presume he did so because his back was hurting. I cannot however specifically recall any of the conversation which would have taken place between us on this occasion whilst in the car.
5. After I picked up my father from his work, I believe I drove him
straight home.
6. Several weeks after I picked my father up from work, I recall him being at home off work. I specifically recall this because he rarely had time off work and it was most unusual for him to be at home during the working week.”
30 Whilst I accept that Ms Serrano’s recollected is somewhat limited, it nevertheless corroborates the plaintiff’s claim that something significant happened in late 1999 which prevented him from completing his shift at work, left him unable to drive home and caused his daughter, who collected him from work, to note that he was unwell and, from his behaviour, to conclude that her father’s back was hurting.
The events following 22 October 1999
31 Accordingly, having suffered what he described as debilitating back pain during his afternoon shift on Friday, 22 October 1999, the plaintiff did not seek medical treatment because he again expected to be told that he was suffering from muscular pain, adding in cross-examination that he also resumed taking the Voltaren medication previously prescribed. This was presumably a reference to the prescription he received from Dr White in July 1999.
32 Whilst in cross-examination the plaintiff said that he worked on the following Monday but not the Tuesday, I think it likely that, as he said in re-examination, he next worked on the Tuesday. This is because, as explained in his first affidavit, the afternoon shift was followed by a day shift which meant that the plaintiff probably had the Monday off work and next worked on Tuesday between 6am and 6pm, between 6am and 2pm on Wednesday and Thursday and between 6am and 6pm on Friday, followed the next week by a nightshift roster.
33 According to the plaintiff, because his condition worsened (“…every day I was getting worse”), on 8 November 1999 he consulted General Practitioner, Dr Vicente, whose very brief clinical note records a complaint of back pain at work “on off”. However, consistent with the plaintiff’s evidence that this doctor would not see him as a WorkCover patient, the entry also indicates that she referred the plaintiff to General Practitioner, Dr O’Toole. Allowing for the brevity of Dr Vicente’s record, I cannot rule out the possibility that, as he claimed, the plaintiff provided her with an explanation of an incident of disabling back pain at work on a specific date or, at the very least, in October 1999.
34 By way of contrast, Dr O’Toole’s clinical notes and his reports, four of which were tendered, provide more detail in that they confirm that the plaintiff consulted Dr O’Toole on 10 November 1999, but they do not explicitly report (and the plaintiff could not recall telling the doctor the date) that the plaintiff “explained what had happened” on 22 October 1999 to Dr O’Toole, that is that whilst “cutting the cardboard” he had felt “a pain” and that he was “having a lot of pain and getting worse every day”.
35 Relevantly, in his first report dated 22 January 2000, Dr O’Toole summarised the history he took on 10 November 1999 in the following words:
“He was complaining of back pain. This pain was mainly in the
right lumbosacral region and had been present for three years.He told me that the pain had started while he was pushing and twisting a reel of paper. He said that he went to see the factory occupational health nurse. He was given some local physical treatment. This treatment did not help his pain.
He continued to work most of the time. He told me that he took some time off because of the pain but he had not submitted a workers compensation claim. He continued to do the same job.
When I saw him, he was complaining of constant low back pain. The pain was aggravated by physical activity and was somewhat relieved by rest.”
36 Nevertheless, in the same report under the heading ‘Relationship of Injury to work’, Dr O’Toole also said that the plaintiff’s “present episode of pain
seems to be related to a specific incident involving the manual handling of a
reel of paper”. Therefore, notwithstanding the failure to mention a date, this further comment is consistent with the plaintiff having, as he said he did, attributed the episode of pain for which he first sought medical treatment on 8 November 1999 to the manual handling of a reel of paper. It is also consistent with Dr O’Toole’s further report written on 10 May 2003 and his clinical notes made on 9 May 2003, both of which record that the plaintiff nominated a date when he told Dr O’Toole that “on 20/10/1999, he had a severe episode of pain while moving a reel of paper”. In these circumstances, I think it likely that the plaintiff did nominate an event in October 1999 which precipitated an episode of severe lower back pain and that within a few weeks worsening pain led to the plaintiff giving up the heavy manual work with which he had persisted over many years despite earlier episodes of less debilitating lower back pain.
37 I note that based on the history of persistent pain and his clinical findings of “a
decreased range of spinal movements. All movements were painful. Straight
leg raising was to 80 degrees bilaterally”, Dr O’Toole referred the plaintiff for a
CT scan of his lumbosacral spine which, on 11 November 1999 reported:“Scans were performed at all lumbar disc levels.
At the L4/5 disc level there is some reduction in canal size, not representing true stenosis, but compromised by ligamentum flavum hypertrophy.
Upper lumbar discs are considered normal.
At L4/5 a broad based disc bulge is present with some compromise of the neural structures. At L5/S1 minimal disc bulge is present.
Ankylosis at the right sacro-iliac joint would appear present. Degenerative disease of the intervertebral joints is not manifested.”
38 Next, Dr O’Toole referred the plaintiff to Neurosurgeon, Mr Laidlaw, who first examined the plaintiff on 11 January 2000. As his report to Dr O’Toole the following day demonstrates, he too apparently obtained a history that “over the last three years” the plaintiff suffered “slowly progressive pain in the lower back”. Relevantly, Mr Laidlaw also reported that he was told that “about two months” before he saw him, the plaintiff “wasn’t able to work because of the pain, and went off on sick leave…”. Notwithstanding some scepticism about the plaintiff’s complaints of, amongst other things, pain radiating down into his right buttock and decreased sensation in his right calf and foot, as his later report to the plaintiff’s solicitors reveals, Mr Laidlaw nevertheless arranged for MRI investigation because he “thought the L4-5 disc prolapse may be
significant, and may have been causing some intermittent neural
compression”.
39 The results of the MRI scan conducted on 17 February 2000 were reported as follows:
“History:
Severe low back pain and right sciatica with possible L5 sensory loss. CT suggests L4-5 disc bulge and right SI joint ankylosis.
Report:
MRI Lumbar Spine: Sagittal T1, T2. Axial PD, T2. MR myelography.
MRI Sacroiliac Joints: Axial and coronal T1, FSE IR.
The lumbar lordosis is maintained. The lower thoracic cord and conus region is normal. The intervertebral disc heights are maintained. No focal bone lesion. Several small Schmorl’s nodes noted inferior aspect L4 and L5 end plates. Broadbased annular disc bulge L4-5 associated with annular disruption contacts anterior thecal sac, non-neural compressive.
Moderate disc desiccation L2-3 through to L5-S1 inclusive. There is bridging osteophyte formation evident in the superior aspect of the right sacroiliac joint without associated bone oedema, not considered likely to be of clinical significance.
Tiny annular tear left paracentral L5-S1.
Conclusion:
No definite aetiology for right sciatica. Multilevel degenerative disc disease, non-neural compressive.”
40 In short, the specialist’s interpretation of this MRI film was that it did not establish a “…pathological basis for right sided sciatica, although there were multi level disc degenerative changes”.
41 Accordingly, when Mr Laidlaw last examined the plaintiff on 24 February 2000, he said that he explained the MRI findings to the plaintiff and that they indicated against surgical relief of pain, which the specialist thought was “genuine”. Instead, Mr Laidlaw recommended exercise, physiotherapy and referral to a rheumatologist.
42 I have already mentioned in passing Dr Milecki who, in the period shortly after he ceased work, examined the plaintiff on 13 December 1999. Notably, in the first of his reports, Dr Milecki recorded a history and past history that included:
“… The on-set of recent symptoms, as reported by Mr. Zurita is uncertain. It appears that he has had some back pain for the past 3 years but that in October 1999 his condition worsened and he said he ‘couldn’t stand it any longer’
…
Mr Zurita said that his back pain began approximately 3 years ago and was the first occasion that he had back pain. He said that his symptoms were similar to the present but milder. He said that currently his pain is excruciating. Mr Zurita reported attending the occupational health nurse at work but was unaware if she reported the condition formally. Mr Zurita said that he visited the nurse on a few times, but that she never filled in forms. He said that she suggested rubbing in cream…”
43 As is evident from his report, Dr Milecki believed that the plaintiff “may be suffering from some level of non specific low back pain” yet based on a primary clinical finding of “non organic back pain”, he determined that the plaintiff was “purposely exaggerating his symptoms and there is no significant condition present”. The doctor reached and maintained this conclusion despite the x-ray and CT scan results obtained in 1999 and notwithstanding receipt of a copy of Dr O’Toole’s first written report.
44 In my view, despite the presence of a Spanish interpreter, Dr Milecki’s unfavourable opinion probably depends in part on the difficulty he reported he had in obtaining a clear history regarding any incident of work-related aggravation of the plaintiff’s lower back condition and in part on this doctor’s view that research has not demonstrated the likely contribution that Dr O’Toole (and it seems other doctors) believe manual (that is, non-sedentary) employment makes to rendering degenerative back conditions symptomatic.
45 Apart from my summary of the medical material for the period of treatment shortly after the plaintiff sought medical intervention in November 1999, I note that from about mid-November 1999 the plaintiff was certified as unfit for work and, from 19 November 1999, according to the employer’s leave records, he was on sick leave. Indeed, these records show that between 20 November 1999 until 23 October 2000 the plaintiff was placed on leave without pay (“LWP”).
46 In any event, on 19 November 1999 the plaintiff lodged a Worker’s Claim for Compensation form in which, without providing a date of injury, amongst other things, he described his injury as “BACKPAIN” affecting “LOWER BACK” which was caused by “COME ON MOVING REEL OF PAPER” whilst in the “REEL STAND AREA”.
47 This claim form further states that the plaintiff reported the condition to “… NURSE AT WORK”, that the time at which the plaintiff ceased work was “2 HRS” and that the date he returned to work was “SAME DAY”.
48 The claim form is incomplete and in parts difficult to interpret. Nevertheless, allowing for the context in which it should be read (that is, it was lodged in the same period in which the plaintiff reported to both Drs O’Toole and Milecki having suffered an episode of work-related lower back pain in October 1999), this document provides some level of corroboration of the plaintiff’s claim that following his return from Chile and, for the purpose of the Act, probably after 20 October 1999, whilst moving a reel of paper at work he suffered an incident of disabling back pain.
49 The progress of the plaintiff’s claim for weekly payments of compensation was not documented in the materials tendered at hearing although allowing for the copy consent orders obtained in the Magistrates’ Court on 31 August 2000, it appears that the first defendant agreed to pay, from 19 November 1999, weekly payments of compensation and reasonable medical and like expenses on the basis that the plaintiff had “no current work capacity”.
50 Consequently, if I accept as I do that it is likely that after 20 October 1999 there was an episode of work-related aggravation of pre-existing degenerative disease in the plaintiff’s lower back occurring in the circumstances described by him, it is also likely that the weekly payments of compensation received by him for some 104 weeks until he received notification that these payments would be terminated from 1 May 2003, were paid in respect to compensable injury suffered in the course of the plaintiff’s employment on or about 22 October 1999.
51 I note that the plaintiff said that following the termination of payments, pursuant to ss.98 and 98A of the Act his former solicitors obtained a lump sum payment of $15,500 in respect to his back injury. I was also told that the plaintiff has been in receipt of a disability pension since June 2004.
52 In re-examination the plaintiff was also taken to a copy of a “Workers Claim For Impairment Benefits Form” dated 14 February 2007 which he indicated he had not completed. Indeed, the document appears to have been prepared by his current solicitor referring as it does to a number of injuries for which impairment benefits were claimed. These included:
•
Injury to the lower back involving disc damage and disc prolapse at L4-5 and L5-S1 level requiring operative intervention;
•
Injury to the lower back with pain radiating down the left, right leg and pelvis;
• Injury to the right leg; • …”
53 Notably, in this document, the date of injury was reported as “post 20/10/99 and particularly on or about November 1999”. Apparently this claim led to an impairment assessment on 30 April 2007 by Consultant Orthopaedic Surgeon, Mr Davie (to whose report I will return in due course) and at hearing amongst other things I was told that the claim had been accepted.
54 However, despite these various claims it seems that the perception of the plaintiff as a poor historian and the view of, in the main, the defendants’ medico-legal examiners that he was a man given to exaggeration of his symptoms and disability, has continued to impact on the attitude to the current application.
Interventions and medical treatment following treating Neurosurgeon,
Mr Laidlaw’s April 2000 report55 As is evident from the history recounted in Dr O’Toole’s report dated 10 May 2003, in September 2000 the plaintiff consulted Dr Clayton Thomas at the Victorian Rehabilitation Centre. Relevantly the reported assessment by the Pain Management Unit on 2 October 2000 referred generally to “a 5 ½ year history of back and leg pain following a work related accident”, although the Discharge Report following the plaintiff’s completion of the program in February 2001 did record the date of injury as “October 1999”.
56 In any event, these documents and the treating doctors’ reports all indicate that during this period the plaintiff continued to complain of chronic and disabling back pain, aggravated by activity.
57 For instance, in May 2001, Dr O’Toole also referred the plaintiff to Chronic Pain Specialist, Dr Vallipuram, who only obtained a very general history of work-related back pain since 1995 which had worsened over time. This doctor’s principal contribution at the time was to recommend stronger painkilling medication, that is, Oxycontin (a medication Dr O’Toole’s clinical notes indicate was prescribed by him from about April 2000, after the plaintiff suffered gastric problems) and to toy with the idea of administering an epidural infusion to “wind down” the plaintiff’s pain.
58 During 2000 and 2001 the plaintiff apparently made a number of unsuccessful attempts to return to work, the last being in July 2001, shortly after which his first solicitors apparently lodged the claim under ss.98 and 98A of the Act, to which I have already referred.
59 In any event, it also appears that in February 2001 the plaintiff’s treating general practitioner, Dr O’Toole, on whom the plaintiff regularly attended for treatment, arranged a further CT scan of the plaintiff’s lumbosacral spine, the results of which appeared to be consistent with the earlier CT and MRI investigations in that it was reported that:
“C.T. SCAN – LUMBO-SACRAL SPINE
Fine axial images were performed through the intervertebral disc spaces at L1/2, L2/3, L3/4 and L5/S1 levels. Following by continuous images from mid-L4 to S1 level.
FINDINGS:
At L4/5 level there is a very mild diffuse annular disc bulge compressing on the theca anteriorly. There is also a mild diffuse annular disc bulge at L5/S1 level. There is no evidence of a focal disc prolapse or spinal canal stenosis. No pars defects were demonstrated. Degenerative changes are noted in the right sacro-iliac joint.”
60 However, it seems from the further radiological investigations obtained by Dr O’Toole that by July 2005 the plaintiff’s lower back condition had deteriorated. The CT scan result obtained on 7 July 2005 evidences this, by showing, as it did, that:
“CT LUMBAR SPINE
There is no evidence of focal disc herniation at the L1/2, L2/3 or
L3/4 levels.Prominent broad posterior annular bulging of the L4/5 intervertebral disc is present. This contributes to a moderately tight central spinal canal stenosis at this level (marked on the films).
There is no evidence of focal disc herniation of the L5/S1 level.
Apart from the changes at the L4/5 level, there is no other evidence of spinal canal stenosis. There is no evidence of significant facet joint arthropathy.
Comparison with the previous examination performed elsewhere in 2001 demonstrates that the posterior annular bulging of the L4/5 intervertebral disc and the narrowing of the central spinal canal at this level have progressed significantly in the interim.”
61 As a consequence, the plaintiff was referred to the Monash Neurosurgical Outpatients Clinic. The correspondence and records from the hospital indicate that in February 2006 Neurosurgeon, Mr Pullar, diagnosed symptomatic lumbar canal stenosis with a significant element of lumbar back pain and, amongst other things, noted that the plaintiff:
“Injured his back in 1995 and has had ongoing problem with back pain ever since. It is interesting to note that a previous MRI scan did not show any lumbar canal stenosis. Over the last year he has noticed numbness, electric shocks, weakness and pain in the lower limbs which is aggravated by standing and walking, and relatively relieved by sitting and lying down…
On examination he has quite a lot of paravertebral muscle spasm, and a restriction in the range of motion in his lumbar spine. Straight leg raising is restricted bilaterally causing low back pain and bilateral lower limb pains. Neurological examination revealed absent ankle jerks and altered sensation in the lower limbs.
A CT scan in 2005 shows moderately severe lumbar canal stenosis at the L4,5 level related to a central L4,5 disc herniation and a combination of facet joint and ligamentous hypertrophy. This is quite different from the previous MRI scan and CT scans…”
62 A further MRI scan of the plaintiff’s lumbar spine on 15 March 2006 confirmed what Mr Pullar described as “quite severe lumbar canal stenosis at the L4/5 segment…” showing, as it did, that:
“MRI lumbar spine
Clinical indication: L4/5 stenosis.
No previous available for comparison at the time of reporting.
There is decreased lumbar lordosis. The vertebral body heights are maintained and vertebral body signal is within normal limits. The conus terminates appropriately at L 1. Intrinsic cord signal is within normal limits. There are no paraspinal soft tissue masses.
A minor broad-based left posterolateral disc bulge is present at L3/4. This, in combination with bilateral degenerative facet disease, produces left subarticular recess and lateral recess stenosis. The spinal canal and bilateral neural foramina are adequate.
There is a posterior central disc extrusion at L4/5. This, in combination with marked ligamentum flavum hypertrophy and mild bilateral degenerative disease, produces moderate to marked spinal canal stenosis, minor right neural foramen stenosis and moderate left neural foramen stenosis. Bilateral exiting L5 nerve roots are impinged within the spinal canal.
A minor broad-based posterior disc bulge is present at L5/S1.
The spinal canal and neural foramina are adequate.
Conclusion:
L4/5 disc extrusion resulting in spinal canal and bilateral neural foramen stenosis as well as bilateral L5 nerve root impingement.Multilevel degenerative disc disease.”
63 In May 2006, to treat the plaintiff’s leg symptoms (but not necessarily with the expectation that this would cure his lower back pain), Mr Pullar apparently performed a laminectomy at the L4/5 level and rhizolysis of the L4 and L5 nerve roots, surgery from which the plaintiff was said to have made a good recovery. However, during the latter part of 2006 the plaintiff remained symptomatic and reported persistent pain in his right leg (and some numbness) and lower back pain, no cause for which was found when a follow- up MRI scan was performed on 29 October 2006.
64 In summary then, by late 2006 a decompression lumbar laminectomy had successfully treated the spinal canal stenosis although the plaintiff still reported right leg pain and ongoing lower back pain for the treatment of which Mr Pullar recommended an exercise program and swimming.
65 I note that in 2008 Dr O’Toole also arranged for a nerve conduction study, performed on 15 August 2008. Notwithstanding the surgical intervention and medical opinion expressed in the years since then, this recent study demonstrates that there is “electrophysiological evidence of a longstanding
right mild L5 radiculopathy with good reinnervation. There is no electrophysiological evidence of a right leg entrapment neuropathy or a large fibre polyneuropathy. Poor activation can be seen in UMN type weakness, pain disorders or central disorders.”
66 Dr O’Toole’s final report dated 21 September 2008 does not mention the EMG results. Nevertheless, in this report he confirmed that he reviews his patient regularly and that the plaintiff continues to report chronic lower back pain aggravated by activity, rendering the plaintiff totally incapacitated for all employment. This opinion is explained by Dr O’Toole in the following words:
“Relationship between injury and employment
This man did heavy manual labour for many years. He describes several specific incidents where he suffered exacerbations of back pain. These incidents involved manual handling of large reels of paper. This man has MRI evidence of underlying multi- level degenerative disc disease. The presence of this disease would make his spine more susceptible to injury.
2. This man had a decompressive lumbar laminectomy in 2006. Despite the surgery, this man continues to complain of low back pain. He continues to take Oxycontin 20 mg twice today (sic) for pain relief. He also takes Efexor for treatment of depression.
3. This man continues to complain of constant low back
pain. He also complains of being depressed as a result of his
chronic pain and disability. His prognosis is por.
4. This man is unable to do his pre-injury duties. I do not believe that he will ever return to the workforce. He is now 60 years old. He has chronic low back pain due to multiple level degenerative disc disease. He has failed spinal surgery. He has been unable to work for 8 years.
5. This man’s incapacity for work will be permanent.
6. I do not believe that this man has any work capacity
7. This man first developed pain in the mid nineties. It would appear that he had an underlying degenerative disc disease. He described an incident that happened at work in October 1999. Following his incident, he developed severe low back pain with sciatica. This low back pain was due to degenerative disc disease. The fact that he had degenerative disc disease would render him more liable to injury.”
The medico-legal evidence
67 The plaintiff’s medico-legal evidence consisted of a number of reports from General Surgeon, Professor Myers, who examined the plaintiff at the request of his solicitors on 30 April 2001 and again on 11 November 2008 (and submitted a supplementary report dated 9 January 2009) and from Neurosurgeon, Mr Bittar, who examined the plaintiff on 20 August 2008 (and submitted a supplementary report dated 4 September 2008).
68 Apart from Dr Milecki’s reports to which I have already referred, the defendants tendered multiple medico-legal reports for the period commencing from August 2000, that is, reports from Orthopaedic Surgeon, Mr Jones, Occupational Health Consultant, Dr Miller (who reported in March and October 2001), Orthopaedic Surgeon, Mr Elsner (who reported in April 2001 and August 2004), Orthopaedic Surgeon, Mr Moran (who reported in February 2002), Occupational Medicine Specialist, Dr Elder (who reported in July 2002 and April 2004), Orthopaedic Surgeon, Mr Robert Marshall (who submitted four reports between February 2003 and August 2004), Psychiatrist, Dr Entwisle, who reported in March 2003 and Mr Davies (who reported in April and May 2007).
69 There is a very clear division of opinion between the medico-legal experts on the basis that almost without exception the experts reporting to the defendants all regard the plaintiff as having either consciously or unconsciously exaggerated his injury and symptoms.
70 Allowing for the passage of time, I think it unremarkable that there are discrepancies in the histories given to the medico-legal examiners, although it would be wrong to conclude from this that the plaintiff has not consistently reported an earlier history of work-related back pain from either 1995 or 1997 which did not interfere with his capacity to continue his heavy manual employment duties until either October or November 1999 when, in association with significant increase in his pain, he ceased work.
71 For instance:
(a)
in August 2000 Mr Jones took a history which included a complaint of back injury in November 1999 whilst pushing a heavy reel of paper. This led to acute and severe pain with right leg and foot symptoms. Mr Jones accepted that the incident described represented an aggravation of a disc problem (that is, lumbar disc degeneration) at the L4/5 level;
(b)
Dr Miller, who appears to have understood that in November 1999 the plaintiff “experienced increasingly severe back pain whilst working”, also accepted that the plaintiff’s employment aggravated and accelerated his degenerative lumbar spine condition, although because of what he perceived to be non-organic factors Dr Miller was inclined to the view that the plaintiff had a capacity for suitable employment other than his pre-injury duties;
(c)
in his first report, Professor Myers appears to have mistaken the year “1997” for the year “1999”, although in his later reports, having read the plaintiff’s first affidavit and a wide selection of reports from treating and medico-legal doctors, he accepted that the incident described on 22 October 1999 probably:
“… led to the aggravation of intervertebral disc disease at the L4/5 and L5/S1 levels on the basis of previously mildly symptomatic disease so as to render the condition more symptomatic to a degree where the disability subsequently required surgery to relieve compression on the spinal canal, causing sciatica, the operation being performed in May of 2006.”
Relevantly, Professor Myers’ reports contain a comprehensive analysis of other medical material as well as an indication that in accepting the plaintiff’s symptoms as genuine, he also took into account the results of the recent EMG study;
(d) Mr Elsner took a history of back pain from 1995, increasing from 1997 to the point that by November 1999 the plaintiff could no longer perform his normal duties. Ultimately Mr Elsner appears to have accepted (albeit with some reservations) the possibility that the plaintiff’s work caused some aggravation of the degenerative disc disease at the L4/5 level, although he last reported well before any surgical intervention in 2006; (e) according to Mr Moran the plaintiff reported worsening back pain in October 1999 “ … as he had to lift 33kg steel bars”. In any event, despite prompting, Mr Moran was not drawn to comment on the “actual degree of pain” from which the plaintiff suffered. However, he clearly accepted that there was evidence of “the aggravation of the degenerative disease of the lumbar spine and the tiny L5-S1 tear Mr Zurita is permanently fit for only light duty employment – work not
involving repeated bending and/or heaving lifting”;
(f) Dr Elder reported the plaintiff as saying that in October 1999 “… there was no injury at all but stated that he could not go to work. He tried for
an hour but could not persist”. This and the fact that Dr Elder found the plaintiff’s presentation “exaggerated in the extreme” appears to have influenced the doctor’s view that the plaintiff did not sustain an injury and that if he had back pain it was due to his degenerative condition not work;
(g)
Mr Marshall took an initial history of back pain from 1995, with the development of pain and an increase in “recurrent symptoms” from 8 November 1999 in association with moving paper rolls at work. Seemingly because of the plaintiff’s presentation on examination, along with some other medico-legal examiners, Mr Marshall formed the view that the plaintiff’s problems were “non-physical in origin” although he accepted that there may be back pain in association with the degenerative disease in the plaintiff’s lumbar spine. Nevertheless, Mr Marshall rejected any suggestion that the plaintiff suffered an injury as well as the notion that the plaintiff’s employment “was a significant contributing factor to an injury”. Indeed, notwithstanding more information, the passage of time and the surgical intervention in 2006 (which Mr Marshall somewhat surprisingly said was “not indicated”), Mr Marshall was not persuaded that what he saw as “relatively minor
underlying age-related degenerative changes were either caused, aggravated, exacerbated or accelerated by [the plaintiff’s] employment
in general or to any particular incident in that employment”;
(g) Dr Entwisle took a history in which the plaintiff described episodes of lower back pain from 1995 and an increase in pain in October 1999 without mentioning a specific injury. Notably, Dr Entwisle found no evidence of psychological injury; (h) as I have already mentioned, Mr Davie conducted an impairment assessment in April 2007. He too took a history of lower back pain from around 1995 which in October 1999 became more severe “when working as a reel hand and bending and cutting rough pieces off the
reel”. Relevantly, he accepted that the plaintiff’s lifting at work had aggravated disc degeneration at the L4/5 level. However, in circumstances where he understood that there was no history of specific injury at work or the development of major leg symptoms for some years after the plaintiff ceased work, he attributed the plaintiff’s ongoing problems to degenerative changes, not his work;
(i) in conjunction with Professor Myers’ reports, Mr Bittar’s reports provide a significant contrast to the views of the defendants’ medico-legal specialists, many of whom have not examined the plaintiff in recent years. In any event, having read this Mr Bittar clearly understood the plaintiff’s history as generally expressed in his first affidavit. He accepted that there was only “partial benefit from surgery” but, like Professor Myers, he rejected in strong terms Mr Marshall’s opinion that the neurosurgical intervention in 2006 was not warranted. In Mr Bittar’s opinion the plaintiff suffers from discogenic lower back pain and lumbar radiculopathy “predominantly as a result of the injury to the L4/5 intervertebral disc” that is the incident which occurred on 22 October 1999. He views this as “a significant contributing factor” to the plaintiff’s present total incapacity for work, and having also reviewed the nerve conduction studies, opined that these “… demonstrate
evidence of a longstanding right L5 radiculopathy and this is highly consistent with the patient’s clinical history, examination findings and findings on investigation.”
Compensable injury
72 In this case I have preferred the evidence of the general practitioner who has had a long-standing involvement in the treatment of the plaintiff’s back condition and the evidence of the specialists, Professor Myers and Mr Bittar, each of whom were well informed as to the plaintiff’s history, the radiological and EMG investigations and other earlier medical opinion.
73 If many of the reported medical histories are accurate, the plaintiff was at times not a consistent or precise historian, and allowing for (in the main) the observations of the defendants’ medico-legal specialists, it is likely that from time-to-time there have been functional elements to the plaintiff’s presentation. Indeed, I expect that this and the difficulty some doctors had in obtaining a clear and consistent history have tended to obscure the medical picture. Nevertheless, the plaintiff maintained many years of heavy manual work in the employ of the first defendant and not withstanding his earlier lower back problems he continued to work full-time in this physically demanding employment.
74 However, against a background of what was originally described in mid 1999 as “mild lumbar degenerative changes”, the nature of the injury suffered is probably work-related aggravation of intervertebral disc disease, particularly at the L4/5 and L5/S1 levels with impairment and pain and suffering and pecuniary loss consequences to which the compensable injury materially contributes.
75 Therefore, despite the presence of any non-organic factors, the evidence permits a conclusion that there have been physical consequences of work- related aggravation injury to the plaintiff’s lumbar spine on or about 22 October 1999 and that these consequences, and particularly the loss of the plaintiff’s capacity to earn income from performing heavy manual work, support a finding that the impairment of the plaintiff’s lumbar spine probably constitutes a serious injury.
76 My reason for reaching this conclusion is explained below.
Loss of earning capacity consequences under paragraph (a) of the definition of serious injury
77 In relation to his loss of earning capacity claim, in addition to the narrative requirements of loss of earning capacity under paragraphs 143AB(38)(e), (f) and (g) of the Act, the plaintiff was required to prove that at the date of hearing his loss, as measured by reference to the statutory formula, is 40 per centum or more, and, after the date of hearing, a loss of earning capacity productive of a financial loss of 40 per centum or more will continue permanently.
78 Loss of earning capacity is measured by comparing:
(a) the income the plaintiff is earning or capable of earning in suitable employment at the date of hearing (“the after-injury earnings”); and (b) the income that the plaintiff was earning or was capable of earning “during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the
injury not occurred” (“the without-injury earnings”).
79 The income compared is gross income from personal exertion expressed at an annual rate.
80 In this instance, other than a number of unsuccessful attempts to return to work, the plaintiff has not returned to gainful employment. According to his treating general practitioner, Professor Myers and Mr Bittar, by reason of ongoing impairment he is currently totally incapacitated for all forms of employment.
81 Subject to a finding of work-related injury on or about 22 October 1999, which continues to materially contribute to the impairment of the plaintiff’s lumbar spine and its consequences, the defendants have notionally accepted that the plaintiff is totally incapacitated for employment. Nevertheless, I am required by the Act to consider this matter separately.
82 At hearing the defendants did not contest the plaintiff’s submission that within the six year window, based on gross earnings and indexed earnings, the without-injury earnings that most fairly reflect the plaintiff’s capacity, had injury not occurred, is the indexed figure for the year ending 30 June 2002, that is $58,515.
83 The Act requires that this figure be compared with the plaintiff’s after-injury earnings. The plaintiff carries the burden of proving any inability to be retrained or rehabilitated or to undertake suitable employment including alternative or further or additional employment and the extent of such inability.
84 As I have indicated, on the evidence I was satisfied that at hearing and other than for the unsuccessful periods in which he attempted to return to work, the plaintiff has not earned income from personal exertion. Consistent with the recent medical evidence, he is probably physically incapacitated for all employment.
85 Based on this evidence:
(a) I find that the plaintiff has a loss of earning capacity of 40 per cent or more and this is likely to be permanent (that is, the impairment will last and not repair or mend and is likely to last for the foreseeable future) (sub-s.134AB(38)(e)(i) and (ii); (b) I am satisfied that rehabilitation and retraining are unlikely to improve the plaintiff’s capacity for employment (sub-s.134AB(38)(g)); and (c) the plaintiff has satisfied me that, when judged by comparison with other cases in the range of possible losses of body function, the loss of earning capacity consequence flowing from injury to his lumbar spine is fairly described as being more than significant or marked and as being at least very considerable. 86 In the past other judges of this Court (as, for instance, His Honour Judge I.J.K. Ross in Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527), have accepted that, under the Act where the Court gives leave with respect to loss of earning capacity consequences, a plaintiff is not limited to bringing proceedings for recovery of damages in respect to any loss of earning capacity. I note that this approach accords with the Minister’s comments in the second reading speech (Victoria, Hansard, Legislative Assembly, 23 May 2000, 1171 (the Hon. M.M.Gould, minister assisting the Minister for WorkCover)) where he said: “If, however, the worker
satisfies the economic loss threshold, the worker will be entitled to bring
proceedings for pain and suffering damages and economic loss damages”.87 Accordingly, in this case I accept that, having granted leave in respect to loss of earning capacity consequences, I am not required to also determine that the pain and suffering consequences for this plaintiff, one of which must be the loss of opportunity to return to his pre-injury heavy manual employment, amounts to a serious injury.
Orders 88 Leave is granted to the plaintiff to bring the proceeding for damages in respect to pain and suffering consequences and loss of earning capacity consequences of injury to his lumbar spine suffered on or about 22 October 1999 in the course of his employment with the first defendant.
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