HER HONOUR JUDGE LAWSON CHRISTOPHER JOHN … · Arnold Dallas McPherson ... Haitsma v VWA 3 VCC:AA/SA . ... Accident Compensation Act 1985 (Vic), s 5. 10 JUDGMENT Haitsma v VWA 5

Revised IN THE COUNTY COURT OF VICTORIA (Not) Restricted AT BENDIGO Suitable for Publication CIVIL DIVISION

SERIOUS INJURY

Case No. CM 3-00346

CHRISTOPHER JOHN HAITSMA Plaintiff

v

VICTORIAN WORKCOVER AUTHORITY Defendant

JUDGE: HER HONOUR JUDGE LAWSON

Bendigo

28 July 2014

1 September 2014

WHERE HELD:

DATE OF HEARING:

DATE OF JUDGMENT

CASE MAY BE CITED AS: Haitsma v VWA

MEDIUM NEUTRAL CITATION: [2014] VCC 1395

REASONS FOR JUDGMENT

Subject: Catchwords:

Accident compensation. Application under s134AB(16)(b) - Accident Compensation Act 1985 -physical injury - loss of body function - back injury - worker under 26 years of age at date of injury - defendants conceded pain and suffering consequences were "serious" - whether plaintiff required to meet requirements of section 134(38)(g). Accident Compensation Act 1985 (Vic). Barwon Spinners & Ors v Podolak [2005] VSCA 33; Sfafe of Victoria v Rattray [2006] VSCA 145; State of New South Wales v Moss 54 NSWLR 536; Jan/is v Woolworths Limited [2012] VCC 1329. Leave granted to Plaintiff.

Legislation Cited: Cases Cited:

Judgment:

APPEARANCES: Counsel Solicitors

For the Plaintiff Mr J H Mighell QC With Mr R Ajzensztat

Arnold Dallas McPherson

For the Defendant Mr W R Middleton QC With Mr R Kumar

Hall & Wilcox

1 JUDGMENT Haitsma v WVA

VCC:AA/SA

HER HONOUR:

Christopher Haitsma brings this application under s134AB(16)(b) of the

Accident Compensation Act 1985 ("the Act").

1

He seeks leave to bring proceedings to recover damages for pain and

suffering and loss of earning capacity for a back injury suffered on the 24 July

2006 in the course of his employment with J B & J M Haitsma (the

compensable injury).

2

J B & J M Haitsma are Mr Haitsma's parents. They run a dairy farm in

Rochester a town 50 minutes north of Bendigo and 20 minutes south of

Echuca.

3

The application is brought under the definition of serious injury, namely a

"physical injury" under s134AB(37)(a) of the Act.

4

The body function said to be lost or impaired is the lumbar spine. 5

Mr Middleton QC, on behalf of the Defendant, conceded during the hearing

that the pain and suffering consequences of the compensable injury does

satisfy the definition of serious injury.

6

1

Mr Haitsma gave evidence and adopted his affidavits that were sworn on 10

September 2012 and 28 March 2014 respectively. No other witnesses were

required by the parties for cross-examination.

7

There was no challenge made to his credibility. Given that the Plaintiff was 24

at the time of the injury and the consequences that he describes have been

ongoing for some eight years and are likely to persist into the foreseeable

future the concession made by the Defendant is appropriate.

8

The focus of this application is therefore whether the Plaintiff has discharged

his onus in respect to the claimed loss of earnings capacity.

9

Transcript ("T") 50,14

2 JUDGMENT Haitsma v VWA

VCC:AA/SA

In order for the Plaintiff to be granted leave to commence a proceeding for the

recovery of pecuniary loss damages, he must satisfy the court of the following:

10

Firstly, that the loss of earning capacity consequences of the

impairment or loss of body function relied upon can be fairly described

as being more than significant or marked, and as being at least very

considerable (s.134AB(38)(b) & (c) of the Act).

(a)

Secondly (and independently), that he has suffered a permanent loss

of earning capacity of 40 per centum or more (s. 134AB(38)(e)(i) & (ii) of

the Act).

(b)

It is common ground that Mr Haitsma was a worker under twenty-six at the

time of the injury and as such, the formula prescribed by s134AB(38)(f) of the

Act has no application.2

11

Therefore the legislation requires the Plaintiff to prove that the injury has

caused a financial loss of 40 per cent or more.3

12

The Act does not prescribe how to measure the loss of earning capacity for a

worker who was under the age of 26 years at the date of injury.

13

In past cases the Courts have referred to the Second Reading Speech of the

Accident Compensation (Common Law and Benefits) Bill,4 where the

Government recognised that workers under twenty-six-years of age should

not be subject to the same six-year period of inquiry as to earnings or earning

capacity as persons over that age. The Minister said:

"In the case of such workers, a court may have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker's probable earning life. This means the usual common-law position prevails."

14

Accident Compensation Act 1985 (Vic), s 134AB(38)(e)(i) Accident Compensation Act 1985 (Vic), s134AB(38)(i), (ii) The Hon. M Gould, Minister Assisting the Minister for WorkCover, Second Reading Speech for the Accident Compensation (Common Law and Benefits) Bill, Legislative Assembly, 23 May 2000, Hansard Victoria.

JUDGMENT Haitsma v VWA

3 VCC:AA/SA

It has been accepted as a matter of practice that the common law applies to

the assessment of loss of earning capacity for workers under 26.5

15

The discrete issue that arose in this application is whether the Court in making

the assessment of loss of earning capacity for a worker under 26 was required

to also have regard to the provisions of s.134AB(38)(g) of the Act.

16

Relevantly that section provides: 17

"(g) a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;"

on behalf of the Plaintiff, submitted that the appropriate

"formula" for measuring the Plaintiff's loss of earning capacity is in accordance

with common law principles 6

Mr Myall, SC 18

He referred the Court to the judgment of Heydon JA in State of NSW v Moss

(2000) 54 NSWLR 536 {"Moss") that sets out a convenient summary of the

principles that apply when assessing a person's loss of earning capacity at

common law.

19

He submitted that that was Parliament's intention when introducing s 134AB

into the Act.7

20

Capper v Munday Sales Pty Ltd & VWA [2013] VCC 1015 ("Capper"), paras [131H132] (Judge Miilane); Jarvis v Woolworths Ltd [2012] VCC 1329 ("Jarvis"), para [21] (Judge Brookes); Craggs v Victorian WorkCover Authority [2013] VCC 1909("Craggs"), para [63] (Judge Campton). Capper, paragraphs [131]-[132] (Judge Miilane); Jarvis, paragraph [21] (Judge Brookes); Craggs, parapgraph [63] (Judge Campton). The Hon. M Gould, Minister Assisting the Minister for WorkCover, Second Reading Speech for the Accident Compensation (Common Law and Benefits) Bill, Legislative Assembly, 23 May 2000, Hansard Victoria.


VCC:AA/SA

In particular, he submitted that s134AB(38)(g) does not apply to the

determination of whether the Plaintiff satisfies the test for establishing

economic loss serious injury.8 The reasons are:

21

the operation of s134AB(38)(g) requires a determination "in accordance

with paragraph (f)" and s134AB(38)(f) does not apply to such workers

and thus the determination described in s134AB(38)(g) does not occur;

(a)

s134AB(38)(g), if it applied to Mr Haitsma's case, would require the

Court to consider his capacity for "suitable employment", which would

be inconsistent with the common law principles governing the

assessment of loss of earning capacity;9

(b)

imposing the requirements of s134AB(38)(g) on workers under 26 (c)

years of age on the day of injury directly contradicts the stated intention

of Parliament to retain the common law test for the assessment of loss

of earning capacity for such workers.

He submitted however that the Court may have regard to the availability of

employment,10 which is consistent with the common law principles governing

the assessment of loss of earning capacity. The prohibition against

considering the availability of employment only arises under the definition of

"suitable employment", which itself is purely a creature of statute.

22

11

Mr Middleton, QC, submitted that the reference to the "common law position"

in the Second Reading speech was made only in the context of the

assessment of a worker's 'without injury earnings' as provided for in the

formula set out s.134AB(38)(f)(ii) of the Act. The need for such an exception is

explicitly noted in the Second Reading Speech.

23

See Capper, [144H145]; Craggs, [63], But see Jarvis, [22], where Judge Brookes appears to accept (but does not state) that s 134AB(38)(g) may be relevant. Capper, [145]; Jarvis, [22]: "the issue of "suitable employment" is not relevant save for by reference to s 134AB(38)(g) of the Act". Jarvis, [22], Accident Compensation Act 1985 (Vic), s 5.

10


5 VCC:AA/SA

In the circumstances, he submitted that the Defendant did not accept that a

true common law position prevails. Such an approach would permit or require

a court, when assessing "the probable income from personal exertion which

the worker would have earned but for the injury", to have regard to factors

such as medical conditions or other circumstances wholly unrelated to the

subject injury which might impact upon a worker's earning capacity. The

Defendant does not submit that such an approach would be open12.

24

In applications of this nature, the focus should be on the effect of the injury

alone. In Barwon Spinners the Court of Appeal stated at 637 [28]:

"... we would reject the argument that paras (e)-(g) of subs (38) are concerned with anything but the physical or mental capacity of the injured worker to work again. That appears consistent, too, with the expression found in para (b) of subs (38)..."

25

While the Court of Appeal was not specifically concerned with any

applications brought by a worker who was under the age of 26 years at the

date of injury, it did not exclude s.134AB(38)(e) of the Act - which continues

to apply - from its comments. Significantly, it highlighted the consistency of

its observations with s.134AB(38)(b), which is relevant to all applications13.

26

Section 134AB(19)(b) specifically states: 27

"For the purposes of proving a loss of earning capacity in accordance with subsection (38), a worker bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment including alternative or further employment and the extent of such inability".

The application of this provision is not restricted to workers who were not

under the age of 26 years at date of injury nor is the reference to subsection

(38) restricted to paragraph (f).

28

He submitted that a similar sentiment is expressed in s.134AB(38)(g) of the

Act. That provision specifically refers to the threshold requirement in

29

12 Cf. Acir V Frosster [2009] VSC 454. See also Shock Records Pty Ltd v Jones [2006] VSCA 180 at [69], 13


VCC:AA/SA

paragraph (b), which applies to all workers, regardless of age at the date of

injury.

In the written submissions filed on behalf of the Defendant it is acknowledged

in that it initially refers to

paragraph (b), which is applicable, but subsequently draws in paragraph (f),

which is not applicable.

30

that there is a tension within paragraph (g)

Nonetheless, Mr Middleton submitted that there was no intention of

Parliament that the provision not apply. Further reference was made to the

Second Reading Speech of the Accident Compensation (Common Law and

Benefits) Bill, where the Minister said14:

"The government recognises there is a tension between a worker's motivation to undertake rehabilitation and retraining and the opportunity to satisfy the economic loss threshold in the serious injury test by a worker not returning to employment or not undertaking rehabilitation and retraining. Accordingly the bill provides the following very important qualification on the loss of earning capacity threshold.

31

The bill provides that a worker will not establish the loss of earning capacity threshold where the worker has or would have after rehabilitation or retraining and taking into account the worker's capacity for suitable employment after the injury, and where applicable, the reasonableness of the worker's attempts to participate in rehabilitation and retraining, a capacity for any employment including alternative or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of his or pre-injury income..."

Unlike the earlier passage where there is specific reference to an injured

worker under 26 here there is no exception stated for workers under the age

of 26 years at the date of injury. There is no discernible policy objective in

removing the obligation for a worker under 26 years to make efforts to

rehabilitate and retrain.

32

Given that the Act is beneficial in nature its provisions must be interpreted to

give effect to that purpose.15 There is an inherent tension between within

33

14 The Hon. M Gould, Minister Assisting the Minister for WorkCover, Second Reading Speech for the Accident Compensation (Common Law and Benefits) Bill, Legislative Assembly, 23 May 2000, Hansard Victoria. Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328 at 335; Dodd v Executive Air Services Pty Ltd [1975] VR 668 at 679, 682; Bird v Commonwealth (1988) 165 CLR 1 at 9; 78 ALR 469 at 474; J

15


7 VCC:AA/SA

paragraph (g), in that it initially refers to paragraph (b), which is applicable, but

subsequently draws in paragraph (f), which is not applicable. There is no

explicit reference to a worker under 26 in paragraph (g).

To draw in the requirements for such a worker to comply with the additional

requirements set out in that section would in my view, be contrary to the

expressed intention of Parliament that workers under 26 be treated differently

and would mean a restriction of the application of common law principles.

Such a result would require a clearly expressed intention on the part of

Parliament. The actual language employed in paragraph (g) in its current form

does not have this effect nor is it fairly open on the words used.

34

Finally, I agree with and adopt the principles stated by her Honour Judge

Millane in Capper v Munday Sales Pty Ltd & Anor [2013] VCC1015

concerning this issue.

35

I shall therefore apply the common law position to the assessment of whether

the Plaintiff's permanent loss of earning capacity is productive of a financial

loss of 40 per centum or more.

36

I. have had regard to and applied the various principles articulated by His

Honour Heydon, JA in Sfafe of New South Wales v Moss16.

37

In Jarvis v Wootworths Limited His Honour Judge Brooks conveniently

summarised these principles in a leave application.17 They were expressed as

follows:18

38

evidence of past economic loss is some, though not conclusive

evidence of reduced earning capacity;

Odlin Shopfitting International Pty Ltd v Kaljanac (1993) 29 NSWLR 632; Loizos v Carlton and United Breweries Ltd (1994) 94 NTR 31 at 33. 54 NSWLR 536 [64], [66], [69], [71H72], [74] and [87]. [2012] VCC 1329. Ibid, [23].

16

17

18


VCC:AA/SA

it is generally desirable to have precise evidence of what the Plaintiff

would have been likely to earn before the injury and what a Plaintiff is

likely to earn after it;

where a Plaintiff has suffered a significantly disabling injury which

affects the range and nature of the work the Plaintiff can perform, a

court can, without specific evidence as to what other persons with that

kind of disability can earn, make a judgment and assessment, on a

percentage basis or otherwise, of the value of the lost capacity;

the compensable loss is not a loss of income but the loss of capacity to

earn income in a manner productive of financial loss. It involves

calculating the damage to a capacity to carry on various careers. It is an

exercise in estimation of possibilities, not proof of probabilities;

the mere fact that the quantum of damages is difficult to assess does

not mean that the Plaintiff is only entitled to a nominal sum;

The task of the court is to form a discretionary judgment by reference to not

wholly determinate criteria within fairly wide parameters.

Background

The background facts were not in dispute. Mr Haitsma is now aged thirty-two.

He was born on 14 March 1982 in Rochester and has lived there for most of

39

his life, apart from short periods when he lived in Bendigo, Melbourne and

Geelong.

He is married but separated from his wife. They have three young dependent

children who are aged eleven, eight and three years respectively.

40

His wife currently lives with the children in a farmhouse on a property that his

parents and brother own. In cross-examination, the Plaintiff confirmed that he

regularly visits his wife and family. They live about a 20 minute drive away. He

does some babysitting or just spends time with his family. There is a granny

41


VCC:AA/SA

flat out the back, where he sleeps if he wants to stay the night.19 He takes the

children to school occasionally and sometimes picks them up. He does a little

tidying up around the house.

Insofar as formal education is concerned, the Plaintiff completed Year 12 at

Rochester Secondary College in 1999. Following that he completed a

landscape gardening apprenticeship. He holds a Certificate III in Horticulture.

He was employed by Rochester Sand, Soil & Landscaping. However,

because of drought that employment ceased.

42

He then completed a dairy apprenticeship and obtained a Certificate III in

Agriculture from the Bendigo Regional Institute of TAPE in Echuca. He has

certificates in farm chemicals and meat processing that were acquired as part

of that course. Since 2004 he has held a heavy rigid truck licence. In

November 2010, he obtained a forklift driver's licence that is still current.

43

The Plaintiff's pre-injury duties all involved manual labouring type work

namely, landscaping for Rochester Sand, Soil & Landscaping, process work

at Murray Goulburn as a powder packer, machine operator/factory hand at

Castlemaine Bacon and landscape gardening with an agency known as

Employment on Tap.

44

Around the end of 2004, he moved back to the family dairy farm operated by

his parents. He performed all aspects of farming work, such as milking,

feeding, rearing calves, farm maintenance, digging trenches, digging up pipes,

fencing, tractor work and chain sawing. It was very physical work.20

45

His life plan was that his father would retire from the farm and that he would

take over the farming operations.

46

Prior to sustaining injury on 24 July 2006, the Plaintiff was generally of good

health, fit and very active. He played sport regularly, including football for

47

19 T8, L19-31 and T9, L1-3 PCB24 20


VCC:AA/SA

Rochester. He rode dirt bikes and went camping. He was a very social person

who would often go out with friends.

Following injury, he stopped playing sport and all physical activities have been

curbed substantially. He sleeps pooriy and is lucky to get five hours sleep per

night. Sleep is often disrupted and he wakes up almost hourly because of

soreness and stiffness.21

48

Circumstances of injury

The injury occurred on 24 Juiy 2006 when Mr Haitsma was in the process of

feeding out hay to cattle. He was walking behind a tractor being driven by his

father. The tractor had a big square hay bale attached and his job was to walk

beside the bale to pull chunks off, known as "biscuits", and then to feed those

to the cows. Each biscuit weighed between 15 to 20 kilograms.22

49

After working for about an hour, he had completed distributing two big square

bales. He felt his back go when he picked up a biscuit, twisted and threw it

down. Initially, he thought it was just a muscular problem. He stopped and

went home and rested. However, the pain did not ease. He saw Dr Melissa

Stone, Osteopath at the Echuca Osteopathic Clinic who advised him to see a

doctor.

50

When his condition did not improve he attended Dr Shaw, a general

practitioner, Rochester.

51

Treatment

Dr Shaw, arranged a CT scan of the lumbar spine that was performed on 1

August 2006. The scan showed a prolapsed disc, specifically, disc herniation

at L4/L5 level impinging upon the thecal sac and a rising left L5 nerve root and

impingement in a nerve.23

52

21 PCB 39 RGB 27 PCB 29

22

23


11 VCC:AA/SA

Mr Haitsma was then referred to Mr Damian Tange, Neuro-oncologist, for

specialist management. He first examined him on 22 September 2006 and he

arranged an MRI scan and organised a lumbar epidural. The injection

provided some pain relief for only a short period.

53

The Plaintiff tried to work, but the back pain was too much. Mr Tange then

organised a second lumbar epidural around December 2006. That injection

did littie, if anything, to relieve the symptoms of pain in the long term.

54

Mr Haitsma had further injections and continued under the care of Mr Tange.

On 15 April 2007, Mr Tange performed a right-sided microdiscectomy.

Following that procedure, the Plaintiff noted no change in his symptoms.24 At

review on 27 July 2007, following further MRI, he was advised to have a

revision of the microdiscectomy.

55

On 27 August 2007, Mr Tange performed a revision hemilaminectomy. Once

again, his symptoms did not improve.25

56

Around December 2007, a lumbar CT myelogram was performed to examine

the L5 nerve root. Mr Tange informed the Plaintiff that the nerve root might be

swollen and therefore damaged, so at that time he suggested a lumbar fusion

of L4/L5.

57

Prior to undertaking any further surgery a Pain Management Course was

That did not ease the pain so the

58

completed over a four month period,

decision was made to proceed with spinal fusion surgery.

Around November 2008, the Plaintiff was prescribed Lyrica, which he took for

approximately 12 months. The doses were gradually increased because he

was informed by his surgeon that the drug loses its effectiveness over time.

59

24 PCB30 PCB31 25


VCC:AA/SA

On 21 March 2009 a spinal fusion at L4/L5 level was performed by Mr Tange.

Thereafter, the Plaintiff did rehabilitation throughout the latter half of 2010.

60

Following the spinal fusion, the Plaintiff complained of pain in his back and

down his right leg. Around early 2010, Mr Tange thought that the Plaintiff

should eventually be able to get back to light work but not heavy dairy

farming 26

61

Currently the Plaintiff is monitored by Dr Quazi, General Practitioner. He takes

a regime of pain relief medication including Norspan patches, Lyrica, Endep

and Panadol Osteo. He complains of never being free from pain and that his

pain levels vary a fair bit.27

62

Over time, the Plaintiff has tried to wean himself off strong analgesic

medication because of mood swings and he often feels tired and groggy.

However, if he does not take the medication, he is in agony with his back

pain.28

63

In late 2012, he attended a Pain Management Program in Wodonga under the

care of Dr Brett Todhunter. He has recommended a trial spinal cord stimulator

and that process is ongoing.

64

Post-surgery employment and current circumstances

Following the spinal fusion in 2009, the Plaintiff completed a Responsible

Service of Alcohol certificate and commenced to undertake a Gaming

Certificate. He was unable to finish that course.

65

He confirmed in cross-examination that he could not physically complete the

Gaming Certificate because part of the duties meant he had to carry buckets

full of coins that could weigh up to 20 kilograms.29

66

26 PCB 32 T7, L12-14 PCB 33 T11, L24-29

27

28

29

13 JUDGMENT Haitsma v VWA VCC:AA/SA

By mid-2010 following rehabilitation the Plaintiff was successful in obtaining

some employment. He has held three jobs. He first worked with Vehicle

Express Ltd, working as a local delivery truck driver. He commenced

employment on 28 June 2010 and finished on 16 July 2010. He left that job

because of conflicting expectations.

67

He then worked at WaterStore Poly Tanks Pty Ltd (WaterStore), Bendigo. He

commenced part-time on 2 September 2010. The job involved transporting

and delivering poly tanks. He mainly worked in Victoria and occasionally

delivered interstate to New South Wales and Queensland.

68

Initially he worked 30 hours per week and that was increased to about 40

hours per week. The Plaintiff stated that it was later reduced to 25 hours per

week due to him experiencing an increase in back pain.

69

In order to manage his pain throughout the day, he took Panadol, usually

eight tablets, and at night 100 milligrams of Fluvoxamine and 50 milligrams of

Mobic. Once he stopped work, he would take a 50 milligram Tramadol tablet

to further manage pain.

70

Prior to returning to employment, he had not used Tramadol, but he found

working hard and his back was not coping. Notwithstanding the pain levels

were increasing he continued to work.

71

I accept that he did not tell anyone at Water Storage that he had a pre-existing

back problem as he did not want to jeopardise his chance of employment.

72

In around December 2012, he moved to Geelong following relationship

difficulties. There he found work with Forest Timber Products, Birregurra,

delivering floorboards and deck boards. He worked Mondays, Wednesdays

and Fridays which allowed him to divide work days and rest days. He

managed that work for a while, but after a few weeks found his back was

73

JUDGMENT Haitsma v WVA

14 VCC:AA/SA

getting worse and he finished that job prior to Christmas 2011, at which stage

he returned to his parents' farm to live.30

Since that time, he has not undertaken any full-time paid employment. 74

The Plaintiff has been granted the Disability Support Pension. 75

Currently he lives with his brother in a house on the family farm,

occasionally potters about the farm, but does not contribute anything in a

meaningful way to the family farming operation.

He 76

Mathew Haitsma, the Plaintiff's brother, swore an affidavit on 28 March 2014.

In the affidavit he confirms that the Plaintiff lives with him and that on occasion

77

he tries to help with lighter tasks on the farm but that he cannot do most of the

things that are required in day-to-day farming due to his back injury. Some

days he is unable to do anything at all and barely makes it out of bed. He

states that on the day after his brother does try to assist he is often very slow

in the morning, plainly in discomfort and spends more time inside.31

Mathew Haitsma also states that due to his ongoing back difficulties, the

Plaintiff cannot be relied upon to complete daily tasks around the farm and he

does not contribute a meaningful amount of work on the farm.32

78

I accept that as a consequence of the injury, the Plaintiff suffers physical

limitations. If he does anything physical for too iong, such as sitting, standing

or walking too far, he feels pain. The pain is felt daily and some days are

worse than others. He has ongoing sciatic pain down his right leg. He must

be very careful to avoid sudden movements, otherwise it aggravates his pain

levels.

79

In his evidence, he stated that on a good day he suffers from mild back pain.

The right leg always has pain, pins and needles and weakness. He finds it

80

30 PCB26 PCB46 PCB 47

31

32


VCC:AA/SA

hard to stand or walk, or do anything like that for a long period of time. If he

does go for a waik or do a bit of housework or something like that, the pain

can flare up. Where the back injury is, it does become quite painful and the

leg itself is very much aching and hard to stand on. On a bad day, he is stiff

and sore and finds it hard to even get out of bed in the morning.33

Medical evidence

Mr Damian Tange, Neuro-oncologist, provided a series of reports confirming

details of his management including the surgical procedures that have already

been detailed. He was optimistic when he last reviewed the Plaintiff on 28

January 2010. At that stage he noted he was doing well and symptomatically

he was much better than what he had been in the past. The issue then was

getting him back to work.

81

Mr Tange stated the Plaintiff would be unable to return to heavy dairy farming,

but should be able to get back to work doing something. He increased the

Plaintiff's weight restrictions to 10 kilograms and encouraged him to be as

active as possible and to continue with physiotherapy. He felt job retraining

would be the most appropriate course of action.

82

Mr Tange's optimism was borne out to a degree. The Plaintiff in cross-

examination said that after doing the 12 months of rehabilitation, he was

probably the best physically that he had felt.34 He was able to resume work as

a driver.

83

Mr Tange's reports are however of limited value in providing assistance with

the task of determining the Plaintiff's present capacity having regard to the

historical nature of those reports.

84

Dr Amal Tawfeelis, General Practitioner, treated the Plaintiff after the surgery

performed on 21 April 2009, when he had the L3/4, L4/5 discectomy and

85

33 T16-25 T43, L3-4 34


VCC:AA/SA

laminectomy. He placed him on Endone and Tramadol. He noted complaints

of low back pain radiating to the right leg, although with a lesser intensity than

before the surgery.

Dr Tawfeelis last reviewed the Plaintiff on 29 March 2012. His report of 7

August 2012 confirms that Mr Haitsma continued to have low back pain,

increasing numbness and tingling on the lateral side of the right leg. In the last

WorkCover certificate that he issued dated 16 March 2012 he certified that the

Plaintiff had a capacity for work for modified duties three days per week.

86

Dr Patrick Nzegwu is the Plaintiffs current treating general practitioner. He

first saw him on 7 November 2013, at which time the Plaintiff was requesting a

script for chronic back pain following the lumbar fusion operation in 2006.

87

Dr Nzegwu continues to treat the Plaintiff for chronic back pain with

radiculopathy. His expressed opinion is that the Plaintiff is quite limited in his

daily activities by pain and that he was unable to work until review by a pain

specialist.35

88

Dr Brett Todhunter, specialist in Anaesthesia and Pain Medicine, reviewed the

Plaintiff on 14 December 2012 and 8 February 2013. He assessed him for the

Pain Management Program at Wodonga Hospital. He saw him initially at

around the time the Plaintiff last worked.

89

Dr Todhunter diagnosis is "failed back surgery syndrome". 90

He believes the Plaintiffs ongoing pain is a consequence of:

(a) Ongoing discogenic pain.

91

Ongoing radicular symptoms, probably related to the L5

nerve root based on his clinical presentation.

(b)

(c) The development of central sensitisation and wind-up in the

central nervous system. This process involves complex


17 VCC:/WSA

neurophysiological changes which result in an alteration of

function in terms of processing of pain information. As a

result, there is the development of hyperexcitability and

hypersensitivity so that the pain signals are amplified during

transmission to the brain within the spinal cord pathway.

This process is well recognised as being a major factor in

terms of persistent pain in both human studies and animal

models.

(d) There is the development of a significant psycho-social

disturbance due to the ongoing impact of the pain upon his

function 36

Dr Todhunter considers that the Plaintiff's pain will continue indefinitely

without further medical treatment, and that there is no cure for his pain. Pain

treatments may reduce the level of pain more effectively than the current

medications and previous surgery. He confirms that it is now years after the

initial injury and subsequent surgery and therefore, there can be no

expectation of any spontaneous improvement.37

92

He postulates that the Plaintiff has an ongoing permanent partial incapacity in

terms of undertaking work. He believes he is permanently and totally impaired

in returning to the workforce doing the type of work he was doing previously,

working on the farm, and that he may be able to undertake lighter manual

occupations or sedentary duties, but this would entail a great degree of

rehabilitation and re-education in terms of developing other skills.

93

Unless the pain can be reduced, Dr Todhunter does not believe the Plaintiff

will ever be able to re-enter the workforce, even in a less arduous position.

His pain levels increase with such low levels of activity that this precludes him

from entering the workforce at the present time.38

94

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36

37

38


VCC:AA/SA

Dr Todhunter recommends neuro modulation to reduce his pain. In the event

that the Plaintiff has no further medical treatment, his condition will remain

unchanged, at best, and he is likely to deteriorate further over time in terms of

loss of further function and therefore an increase in incapacity. It is possible,

with a reduction in the pain following neuro modulation, that the Plaintiff's

incapacity will become less, even though spinal cord stimulation will not cure

his condition and his medical impairment will essentially remain unchanged.39

95

Dr David Murphy, Consultant Physician in Rehabilitation Medicine, undertook

a medico-legal assessment on 26 April 2013. He confirmed the Plaintiff has

developed chronic back and radicular pain which has not responded to the

three surgeries and extensive rehabilitation. He agrees that he may be a

candidate for advanced pain therapy such as neuro stimulation.

96

He confirmed the Plaintiff has persistent pain generating from a degenerative

disc and neuropathic pain as a consequence of right L5 nerve root

compression. He considers the Plaintiff's capacity for any employment is

quite limited and he should only attempt to undertake work which does not

involve repetitive lifting, bending or twisting, lifting of more than five kilograms

or sitting or standing in one position for half an hour.

97

If the Plaintiff is undertaking driving, it should only be for short distances in

trucks with very good suspension which limits jolting to the lumbar spine.

98

Dr Murphy postulates the Plaintiff could only work up to 12 hours per week

over divided days. The prognosis is only fair and he will have persistent back

and leg pain. He stated that he may gain some benefit from spinal cord

stimulation, but that in itself will not result in any improvement in his physical

capacity.40

99

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19 VCC:AA/SA

Dr Murphy re-examined the Plaintiff on 28 March 2014 and confirmed his

previously expressed opinion. In a letter dated 22 April 2014 addressed to the

Plaintiff's solicitors, he states it is clear that it is unrealistic for the Plaintiff to

gain any form of employment for jobs that he is reasonably suited to by

training or experience.41

100

Professor Teddy, Neurosurgeon, examined the Plaintiff for medico-legal

purposes on 29 July 2013. He agrees with the diagnosis of "failed back

surgery syndrome".

101

He confirmed the Plaintiff has mechanical (musculoskeletal) back pain and

neuropathic lower limb pain and has no capacity for employment in anything

other than an entirely sedentary occupation. His prognosis must remain poor,

having regard to his history and failure to improve.42

102

Mr Clive Jones, Orthopaedic Surgeon, recently reviewed the Plaintiff on 26

June 2014. He confirmed he had a clinically satisfactory single level spine

fusion, but that the Plaintiff continues to experience ongoing symptoms

suggestive of L5 radiculopathy as the major problem.

103

Mr Jones agreed with the diagnosis of "failed spinal surgery". He confirmed

the Plaintiff's major problem appeared to be referred pain and tingling in the

right leg with clinical and radiological evidence of a persisting radiculitis.

104

His findings on examination were of spinal irritability, restricted leg raising on

the right and mild sensory and motor changes, implicating the right fifth

lumbar nerve root.

105

Mr Jones examined the very large number of radiological investigations, which

included plain x-rays

106

CT scans and the MRIs. He noted that the last

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VCC:AA/SA

investigation, an MR! with contrast, concludes that the descending L5 nerve

root is impinged by a right posterolateral disc protrusion 43

107 Mr Jones believes the Plaintiff has genuine pain and restriction. He notes that

the results of spine decompression and spinal fusion are unpredictable and

not infrequently adverse, as in this particular situation. He states that the fact

that his pain increases with low level of activity precludes him from re-entering

the workforce 44

Mr Jones reviewed the Vocationai Assessment Report from Recovre. The

assessment was made in 2008 and he considered it to be out of date. He did

not believe that the Plaintiff would be likely to succeed in any of the jobs

considered. Return to work driving was not possible, eliminating bus driving

and delivery driving. The Plaintiff does have a forklift licence, but presumably

the same thought would apply to working in stores and operating a forklift.

108

109 Mr Jones noted that the Recovre assessment dated May 2010 mentions job

options such as sales assistant, meter reader, quality control, warehouse

assistant, delivery driver and postal delivery driver, and he considered those

suggested options to be unlikely. Overall, Mr Jones considered the Plaintiff's

prognosis to be poor and he regards him as being severely disabled and

unlikely to recover.

The Defendant relied on a report from Dr Dominic Yong, Specialist

Occupational Physician, who reviewed the Plaintiff at their request on 10 June

2014. Dr Yong saw the Plaintiff following the cessation of his employment

with WaterStore.

110

Unlike other practitioners, Dr Yong says that following his examination there

was no evidence of any radiculopathy or neural compression.

m

43 Mr C Jones' report, p 6 Mr C Jones' report, p 6 44


21 VCC:AA/SA

Dr Yong noted the Plaintiff's history of multiple back operations for disc

prolapse with post-surgical lumbar dysfunction. He considered that he has a

current capacity to perform tasks within the following restrictions:

112

• a reduction in working hours;

• avoiding repeated bending and twisting of the back;

• avoiding repeated firm pushing and pulling;

• avoiding lifting more than 7 kilograms on a repetitive basis; and

• varying posture regularly between sitting, standing and walking.

Dr Yong believes, of the jobs set out in the Vocational Assessment Report

dated 7 July 2008 prepared by Recovre, that the Plaintiff would be able to

work as a console operator, product quality controller or traffic controller. He

did not discuss those various options with the Plaintiff when he examined him.

113

Dr Yong further reviewed the Vocational Assessment Report dated 11 May

2010 and he believed the Plaintiff could work as a quality controller.

Otherwise, he thought working as a tourist information officer, a ticket seller,

usher, sales representative, service station attendant, quality insurance

inspector, debt collector, driving instructor and process server would be likely

to comply with the restrictions he recommends and that the Plaintiff would

have a capacity to perform those roles.

114

Overall, given the preponderance of medical opinion and the results of

radiology that is at odds with the expressed opinion of Dr Yong, I do not

consider that his views concerning the Plaintiff's capacity for employment are

realistic and therefore I have rejected his opinion.

115

Conclusions - Loss of earning capacity


VCC:AA/SA

There is no issue the Plaintiff suffered a compensable injury to his lumbar 116

spine.

The injury is a prolapsed disc, specifically, disc herniation at L4/L5 level

impinging upon the thecal sac and a rising left L5 nerve root and impingement

in a nerve.

117

Treatment has included significant spinal surgery namely, a right-sided

microdiscectomy, a revision hemilaminectomy and finally spinal fusion at

L4/L5 level performed by Mr Tange. The general consensus of medical

opinion is that he now suffers from "failed back surgery syndrome".

118

The Plaintiff continues to suffer ongoing discogenic pain, with ongoing

radicular symptoms and pain desensitisation. His condition is permanent and

no improvement is likely.

119

All of the medical evidence supports the proposition that the Plaintiff has been

left with a significant disability and restriction in his lower spine that has

rendered him incapable of any form of heavy manual employment including

that which he undertook prior to injury.

120

I accept the Plaintiff is genuine and strongly motivated to work. That is

reflected in his various attempts to work following the multiple surgeries. I find

that his symptoms deteriorated following those attempts in particular, his pain

levels increased requiring greater levels of pain relief. He tried but was unable

to sustain employment. He stopped work mainly as a result of the back pain

and its consequences.45

121

Mr Haitsma has limited formal education. His qualifications relate to

Landscape gardening and dairy farming. He is unable to pursue any

employment in those areas because of the consequences of the compensable

122

injury.

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1 am satisfied that he is a young man who but for injury would have worked on

the family farm, truck driving or in some other heavy manual occupation.

123

He completed a Responsible Service of Alcohol certificate and commenced

the Gaming Certificate

physically handle the requirements of the course.

124

but was unable to finish because he could not

125 His attempts at retraining and rehabilitation have not been successful to date

in returning the Plaintiff to any alternative form of employment.

126 I accept the opinions of Dr Todhunter and Mr Jones. Dr Todhunter states that

unless his pain levels can be reduced he is unlikely to re-enter the workforce

even in a less arduous position.46 Mr Clive Jones accepts he cannot re-enter

the workforce.47

Given my acceptance of the Plaintiff's evidence, supported by Mathew

Haitsma, I do not accept Dr Murphy's and Dr Yong's suggestion that the

Plaintiff has a capacity to work with restrictions

suggestion that he could perform a sedentary occupation.49

127

48 nor Professor Teddy's

128 Having regard to the totality of the evidence in particular, my acceptance of

the Plaintiff's evidence that he cannot work supported by Mathew Haitsma's

observations of what happens whenever he does try even modest activity on

the farm, I find that he has no current capacity for work.

In conclusion, the Plaintiff presented as a genuine and highly motivated

individual. He has managed his chronic and disabling pain over the course of

many years. He genuinely endeavoured to return to the workforce, but has not

able to cope because of the worsening of his pain symptoms as a

consequence of his back injury.

129

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47

48

49


VCC:AA/SA

I find that in accordance with section 134AB(38) of the Act, the Plaintiff has a

permanent loss of earning capacity of 40 per centum or more. Furthermore,

when judged by comparison with other cases in the range of possible

impairments or losses of hand function, the Plaintiff's loss of earning capacity

is fairly described as being more than significant or marked, and as being at

least very considerable.

130

131 The Plaintiff's application succeeds. I shall make consequent orders.


25 VCC:AA/SA

Documents

HER HONOUR JUDGE LAWSON CHRISTOPHER JOHN … · Arnold Dallas McPherson ... Haitsma v VWA 3 VCC:AA/SA . ... Accident Compensation Act 1985 (Vic), s 5. 10 JUDGMENT Haitsma v VWA 5