IN THE COUNTY COURT OF VICTORIA Revised AT MELBOURNE ... · The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined, In addition, both parties

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IN THE COUNTY COURT OF VICTORIAAT MELBOURNECOMMON LAW DIVISIONSERIOUS INJURY LIST

RICHARD BADSEY

V

DEJAY MEDICAL & SCIENTIFIC PTY LTD

JUDGE

WHERE HELD

DATE OF HEARING

DATE OF JUDGMENT

CASE MAY BE CITED As

MEDIUM NEUTRAL CITATION

SubjectCatchwords

Legislation CitedCases Cited

RevisedNot Restricted

Suitable for Publication

HER HONOUR JUDGE K BOURKE

Melbourne

26 May 20169 June 2046

Badsey v Dejay Medical & Scientific Pty Ltd

120161 VCC 777

Case No. C1-, 5-01769

REASONS FOR JUDGMENT

ACCIDENT COMPENSATION

Serious injury - injury to the lumbar spine - loss of earning capacityonly, pain and suffering concededAGCi'dent Compensation Act I 985, SI34AB(, 6)(b), (37) and (38)Barwon Spyhners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v0110a Australia Pty Ltd & An or (2006) I4 VR 602 ; Petkovski v Gaffetti1,9941 I VR 436; Haden EngineerIhg Pty Ltd v MCKihnon (204 0) 31VR I ; Giankos v SPC A1dmona Operations Ltd (N0 2) [2009] VCC1461

Leave granted to bring proceedings for damages for loss of earningcapacity

Judgment:

APPEARANCES

Plaintiff

For the Plaintiff

Defendant

For the Defendant

Counsel

COUNTY COURT OF VICTORIA250 William Street, Melbourne

Mr J Brett QC withMs A MacTieman

Ms J For bes QC withMs M Tait

Solicitors

Adviceline Injury Lawyers

Thornson Geer

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COUNTY COURT OF VICTORIA250 William Street, Melbourne

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HER HONOUR:

This is an application for leave to bring proceedings for damages pursuant to

s, 34AB(16)(b) of the Accident Compensation Act , 985 ("the Act") for injury

suffered by the plaintiff in the course of his employment with the defendant, in

particular on 21 March 2013 ("the said date").

The plaintiff seeks leave to bring proceedings for damages in relation to loss

of earning capacity only, serious injury for pain and suffering having been

conceded.

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3 The plaintiff brings this application pursuant to clause (a) of the definition of

"serious in/'un/' to be found in SI34AB(37) of the Act. There, "serious injury' is

defined relevantly as meaning:

"(a) permanent serious impairment or loss of a body function. "

The body function relied upon is the lumbar spine.4

5 Apart from being a serious injury, the injury must have arisen on or after

20 October I 999 before the plaintiff is entitled to recover damages.

The impairment of the body function must be permanent, in the sense that it is

likely to continue into the foreseeable future,

The plaintiff bears an overall burden of proof upon the balance of probabilities.

Apart from the general burden, ss(, 9) and ss(38)(e) of the Act impose specific

burdens in relation to a claim for loss of earning capacity.

By ss(38)(c) of the Act, the impairment must have consequences in relation to

each of pain and suffering and loss of earning capacity which, "when judged

by comparison with other cases in the range of possible impairments, ... fairly

described [as at the date of the hearing] as being more than significant or

marked, and as being at least very considerable".

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9 I am required to consider the consequences to this particular plaintiff, viewed

objective Iy, arising from the injury. Comparison must also be made of the

impairment arising from the injury in this particular application with other cases

in the range of possible impairments or losses of body function, mental or

behavioural disturbances or disorders.

10 Loss of earning capacity must be to the extent of 40 per cent or more, both at

the date of hearing and permanently thereafter.

Subsections (38)(e) and co recite the formula by which loss of earning

capacity is to be measured.

Subsection (38)(g) requires questions of rehabilitation and retraining be

considered in determining whether the 40 per cent loss has been established.

Subsection (38)(h) provides consequences which are psychologically based

are to be wholly disregarded in paragraph (a) cases.

I have applied the principles identified by the Court of Appeal in Barwon

Spinners Pty Ltd & 018 v Podolak' and Grech v 0110a Australia Pty Ltd &

An o12 in reaching my conclusions.

The plaintiff relied upon two affidavits and gave viva voce evidence. He was

cross-examined, In addition, both parties relied on medical reports and other

material which was tendered in evidence. I have read all the tendered

material.

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The Plaintiff's evidence

16 The plaintiff is almost fifty two, having been born in June , 964. He is married

with two adult children.

2(2005) I4 VR 622(2006) I4 VR 602

VCc:SAILM/As2 JUDGMENT

Badsey v Delay Medical & Scientific Pty Ltd

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17 In around I 983, the plaintiff finished secondary school in South Africa. He

completed a Diploma in Film and Television Production in about 4988 and

worked in the film and television industry in South Africa in the late 1980s.

In about I 992, the plaintiff obtained employment in a hardware store as a

salesman, where he took up a trade as a locksmith, in which he worked for

about two years,

In about 4994, the plaintiff started his own business as a handyman, locksmith

and domestic refrigerator repairman.

The plaintiff had back surgery in 1998 at L5-SI ("the 1998 operation"). He

sustained an injury to his low back while assembling some play equipment for

his children. He made a complete. recovery from that injury.

After the , 998 operation, the plaintiff did not have any more problems with his

legs and he did not have ongoing significant back pain.

In his second affidavit, the plaintiff described having attended physiotherapy at

Endeavour Hills once in January 2043 for treatment of his back which had

been sore from gardening. His back pain resolved and caused him no need

for ongoing treatment or time off work.

The plaintiff went to the physiotherapist only once in January 2013 because

he was stiff, 3 He explained that he only recently had remembered that

attendance when something jogged his memory, thus he had not referred to it

in his first affidavit. 4

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24 In about I 999, the plaintiff migrated with his family to the United States and

later that year, migrated to Australia.

The plaintiff worked for two years from 2000 as a console operator at Express

Fuel. Whilst in that job, he was studying at Swinburne, attempting a computer

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technician-type course. He thought computers were the way tonyard and that

he had some aptitude in that area but it turned out he did not. 5

In about 2003, the plaintiff obtained work as a sales representative for a

medical supply company, for which he worked for about five years,

In about 2007, the plaintiff commenced employment as a sales representative

with Aidacare, where he worked for three years.

In about May 2010, the plaintiff started work as a sales representative with the

defendant. His usual hours were 8,308m to 4.30pm and his duties involved

promoting and selling rehabilitative equipment to prospective buyers. The role

involved travelling to various rehabilitation hospitals and clinics around

Melbourne, suburban areas and interstate.

On the said date, the plaintiff was delivering equipment, including a large

dynamic walking frame weighing about 92 kilograms, to a medical facility in

Geelong. Whilst attempting to unload the equipment from his van, the

equipment started to topple and fall. The plaintiff pushed back against it with

all his strength when he suddenly felt a sharp pain in the left side of his lower

back and buttock ("the incident").

By the end of the day, having completed his demonstration, the pain in the

plaintiff's lower back had intensified. The following day, he lodged an incident

report as this pain persisted.

The plaintiff attended "Brad" at Endeavour Hills Physiotherapy on 23 March

2013. On 2 April 2013, the plaintiff consulted his general practitioner, Dr

Downe, who recommended physiotherapy and that the plaintiff try anti-

inflammatory medication. He also referred the plaintiff for a CT scan, which

the plaintiff underwent on 15 May 2015. That scan revealed a broadbased

disc bulge at L4-5 and L5-SI.

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Badsey v Dejay Medical & Scientific Ply Ltd

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32 Following the scan, Dr Downe advised the plaintiff that he was suffering disc

bulges and referred him to Mr Wilde, orthopaedic surgeon.

During attendances at Endeavour Hills Physiotherapy, the plaintiff underwent

a number of heat therepies, hydrotherapy and massage, but that did little to

alleviate his ongoing low back pain,

At about that time, the plaintiff began to feel depressed as a result of his

workplace Injury, He had been attending counselling with Mr Anderson,

clinical psychologist, in 2011 with respect to his daughter's psychiatric illness.

He decided then to consult him in relation to his workplace stress.

The plaintiff told Mr Anderson of his feelings that the defendant's managers

were talking behind his back and considered him a deadweight. The plaintiff

was extremely anxious that his employment was going to be terminated.

On about 9 July 2013, the plaintiff saw Mr Wilde, who sent him for an MRI

scan, as physiotherapy was not working. That scan revealed a left

paracentral disc protrusion at L4-5 imposing on the L5 nerve root, and also a

disc protrusion at L5~SI.

The plaintiff saw Mr Wilde again on 24 July 2043. He confirmed the plaintiff

had suffered a disc protrusion and recommended an epidural to the L4-51evel

to try and reduce his lower back pain. Mr Wilde advised that if the injections

failed to provide relief, the plaintiff would need to consider a microlaminectomy

partial discectomy procedure.

In about August 2013, Dr Downe certified the plaintiff as restricted from lifting

anything heavier than 8 kilograms or pushing anything heavier than 35

kilograms.

That month, the plaintiff approached the defendant's manager advising he had

suffered slipped discs as a result of his heavy work. The plaintiff advised that

he was required to wear a back brace with an 8-kilogram lifting limit. He

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requested the company vehicle be fitted with an hydraulic lift. That initial

request was ignored and the plaintiff had to make a further request, following

which he was told it was too costly and would not be necessary once his back

pain improved.

In September 2013, the plaintiff had an epidural injection, after which he

continued to suffer intense pain and restriction in his lower back with pain

going through his left leg and buttock. ' He also attended a Dr Smith who

prescribed medication. 7

in October 2013, the plaintiff again saw Mr Wilde because of persisting back

pain and he recommended a Cybertech back brace to assist in undertaking

modified duties. On referral from Mr Wilde, the plaintiff consulted Mr Owens,

a prosthetist, who fitted him with a brace in November 2013.

Due to his persisting back pain, the plaintiff was referred by Dr Downe to a

musculoskeletal physiotherapist, Mr Jonathan Bell, whom the plaintiff saw in

February 2014. He recommended exercises and hydrotherapy and regular

physiotherapy. That weekly treatment was of some benefit to the plaintiff.

Over the following months, the plaintiff tried to work his modified duties but

continued to have ongoing pain and lower back restriction and remained

under Dr Downe's care. He certified the plaintiff fit for restricted duties and

recommended a back brace and avoiding heavy, strenuous work,

Dr Downe continued to prescribe Trainadol, Mobic and Diazepam, and

recommended the plaintiff continue with physiotherapy to treat his ongoing

low back pain; however, despite these treatments, lower back pain persisted.

The plaintiff consulted Mr Wilde in April2044 and explained that he had tried

to battle through pain at work but was no longer able to cope and was

prepared to have surgery.

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46 On about 30 June 20.4, Mr Wilde carried out a microdiscectomy at L4-5 ("the

2014 operation"). Post"surgery, the plaintiff had eight weeks off work,

returning to modified duties in September 2014.

Following the 2014 operation, the plaintiff began to feel particularly victimised

and bullied. The plaintiff's manager caused the him severe anxiety when he

was accused of failing to help co"workers do tasks that he had been doing.

Whilst on modified duties, the plaintiff remained in constant fear that the

defendant would terminate his employment.

During that time, the plaintiff was seeing Dr Downe regularly and taking

Tramadol and Meloxicam. Regular reviews continued with Mr Wilde, who had

recently commenced the plaintiff on Lyrica. The plaintiff was undertaking

hydrotherapy and physiotherapy a number of times a weeks and continuing

with counselling.

In 2015, Mr Downe referred the plaintiff to Mr Goldschlager, neurosurgeon.

He organised a nerve root injection but the plaintiff was mistakenly given an

epidural which did not help, In May 2015, he had the nerve root injection

which caused more pain.

Mr Goldschlager organised an upright MRI scan and recommended further

back surgery thereafter but would only estimate success at 60 to 70 per cent

and a 10 per cent chance of making the plaintiffs back a lot worse. The

plaintiff decided not to have surgery because of the risks involved and his

earlier disappointing results. After the 2014 operation, Mr Wilde had told him

that he had a 95 per cent chance of a successful outcome.

In his first affidavit, the plaintiff described at length the pain and suffering and

loss of enjoyment of life consequences of his back condition.

The plaintiff referred to his ongoing difficulties with certification for modified

duties from August 2013 with a return to light duties after the 2014 operation.

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53 In about February 2014, the plaintiff began working in a reduced capacity for

three days a week from 8.30am to 4.30pm, driving a van and undertaking

deliveries and demonstrations but with lighter equipment. He also did some

modifications to equipment in the workshop at the office, as well as some

desk work.

54 On about I January 2014, the plaintiff was certified fit for modified duties by

Dr Downe with restrictions of lifting only bench height items less than IO

kilograms and working three days a week wearing a back brace.

As of November 2014, the plaintiff had recently commenced a case

manager's course at Holmes glen ("the course"). He struggled with his studies

due to his ongoing pain and depression, and his medication affected his ability

to concentrate and sit exams.

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56 Prior to the incident, the plaintiff was earning about $1,250 gross per week.

He was given a company vehicle and mobile telephone; however, since the

injury, those privileges had been taken from him and he had been forced to

use his own vehicle and telephone.

The plaintiff believed his future earning capacity had been significantly

diminished as a result of his workplace injury, and his capacity to work as a

sales representative had finished as a result thereof. His prospect of

maintaining his current work or finding similar work had been restricted due to

his emotional state and ongoing pain.

In his second affidavit, the plaintiff described how, in about December 2013,

the plaintiff and co-workers were requested to reduce their number of hours

worked because of the defendant's financial difficulty. The plaintiff was

originally requested to reduce his days to four days per week but after a

consultation with his general practitioner, it was agreed the plaintiff should

reduce to three days per week because his back was not only not improving

but it felt at times as if it was deteriorating.

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59 The plaintiff was very concerned about the defendant's financial position

because his back injury, and the limitations it caused with respect to what he

was able to do at work meant that it was going to be very difficult for him to try

any find alternative employment, Had he been fit and uninjured when he

received the request to reduce his working hours, the plaintiff would have left

that employment because he wanted to work full time.

The plaintiff was disappointed with the 2044 operation and once again asked

Mr Wilde if he could have a disc replacement. Mr Wilde advised against it as

he did not think any further surgery would help.

Throughout 2014, there was often an issue as to whether the defendant was

going to keep the plaintiff employed. He requested a winch for use in the van

and also a hydraulic lift. There were many times that he was limited in helping

co-workers assemble equipment as he could not bend and he was criticised

by management in this regard.

As it turned out, the defendant kept the plaintiff on until22 July 2045, When

he ceased work, he was working 15 hours a week and had been working

those hours since IO March 2015. When he had attempted more hours, the

plaintiff found that he was actually fatiguing and becoming more irritable at

home. 8

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63 By late 2014, the plaintiff increased his hours to 20 hours per week and by

either late January or early February 2045, he had increased his hours to 25

hours per week, but that was too much for him,

Although the defendant was trying to limit the amount of driving undertaken by

the plaintiff, there were days when he spent many hours on the road, for

example driving backwards and forwards to Bendigo. Sometimes, it was

impossible to stick to the strict daily hours because the plaintiff might need

medical treatment or have an examination.

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65 The plaintiff's requests for lighter work were knocked back by the defendant.

Working in excess of 15 hours involved the plaintiff starting to drive out to

clients to do demonstrations. Not just the driving, but getting held up at

client's premises was a problem for the plaintiff. '

When the plaintiff got up to 25 hours per week, approximately 50 per cent of

that time was driving. " If not driving, it would have been work out of the office.

He was able to manage light-duty office work. He was able to help assemble

equipment if it was placed at a suitable height. "

The plaintiff could not say whether it would have been a problem for him doing

these light duties for more than 15 hours per week. He is in pain now, and is

taking medication. He does not know that he could endure longer hours with

his medication and pain. People were talking about him at work behind his

back because he was drowsy and that had -impacted on how he managed day

to day psychologically. 12

When the plaintiff was working the I5 hours, he worked 3 hours a day for five

days. He increased his hours to 21 hours one week then 25 hours, but he was

in so much pain he could not continue. When driving, he might still have taken

larger equipment and there was still a bit of a physical component to the

wO rk. 13

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69 The plaintiff thought he worked 25 hours for maybe a week or two, but he

could not remember. He could recall a particular trip to Bendigo during which

he was delayed. That trip "blew out his hours". 14

The plaintiff agreed he could have managed with shorter periods of driving

within Melbourne. He confirmed that if he could have remained at 15 hours

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Bedsey v Dejay Medical & Scientific Pty Ltd

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per week, he would have. " He agreed he told Mr Simm this was the case. 16

The plaintiff agreed that over Christmas, there was a plan he would try and

increase his hours to 20, and then 25 hours, " If there were local clients, he

could do that work, as long as the equipment was not too heavy. He did not

have problems driving to and from work or to activities on the weekend. "

The plaintiff continues to receive weekly payments of $81 7.00. At the time of

the incident, he was earning $65,000, which he was earning in 204 0 with the

defendant. There was supposed to be a review of wages but it never

happened.

The plaintiff was given full use of a motor vehicle that was unmarked and he

had full unlimited domestic use. He was given .a fully maintained vehicle and

petrol card. When the plaintiff went off work for the 2004 operation, he was

told to leave the vehicle at the workplace and course work.

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The course

74 The plaintiff commenced a Diploma in Case Management Community

Services in 2014. As at 46 March 2046, he had completed the required

practical training.

75 The plaintiff took this career path after his injury. Had he not been hurt, he

would have left the defendant and gone to work for another company with

more scope and potential, with more administrative and less on-the-road

work. 19

76 The course was quite flexible. The plaintiff thought he had to complete fifteen

modules, which he could do online or on campus. He could pace himself. '0 A

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module would be three hours over maybe six weeks. 21

77 As of the hearing -date, the plaintiff had not seen his course results. A

statement of his results indicated distinctions and high distinctions in all

subjects. 22

The placement

78 It was quite difficult to find the required course placement because of the

plaintiff's limited work capacity. Most places required students to work every

day, which the plaintiff could not do. He worked a 7-hour shift, which meant

that when he came home he would often need to lie down due to increased

back pain.

79 The plaintiff did his placement at DutchCare Carrum Downs, two days a week,

either Tuesday and Wednesday or Wednesday and Friday, from

approximately 8.30am until 4.00pm, or 4.30pm, depending on the workload.

Tuesday's hours were usually 8.30am until 3.00pm. In the case manager

role, he helped people who were not residents. That role might involve

running a game or an activity, and at other times, helping an aged person with

support services.

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80 That was the maximum time DutchCare could offer the plaintiff and because

of his working limitations, it was the only place that could accommodate him. 23

He could do a bit less than seven hours a day. It was quite tiring and he

found himself having breaks, He was allowed to have the odd nap here and

there, and then he would have another nap when he went home. He did not

believe he could have done more hours, He could have done three days, not

consecutive Iy, with less hours, 24

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Even when not working consecutive days, the plaintiff still had a sleep at the

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Bedsey v Delay Medical & Scientific Pty Ltd

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end of the day. His pain caused him to lose his concentration. Giving this

evidence, the plaintiff started crying. 25

When working at DutchCare, the plaintiff took Tramadol or Mobic, and

occasionally Diazepam to stop cramping. He tried to stop taking medication

but as soon as he started working or doing other activities, he had to go back

On it. 26

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83 The plaintiff confirmed he did 200 hours' placement at DutchCare between 2

December and 16 March. He fitted in with them, and was able to attend

reliably each week. " It was "absolutely impossible" he did more than I5 hours

a Week. 28

84 The plaintiff agreed he did not tell Dr Downe of any problems during the

placement, but may have discussed how he was going in passing. Other

students doing the placement did it full time. 29

In re-examination, the plaintiff confirmed he chose DutchCare as it suited

them and him on limited hours, '' The plaintiff does not believe he is capable

of any type of full-time work. 31

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Work in the future

86 The plaintiff was hopeful to obtain employment utilising his new diploma. He

is nearly fifty-two and understands there would be younger, fit candidates who

would have no problem working in a full-time position.

87 The plaintiff does not know what the future holds. He certainly knows he

could not perform his pre"injury employment or any other employment which

he worked in prior to starting with the defendant.

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88 Before the plaintiff stopped work with the defendant, WorkCover arranged for

him to be seen by WorkAid. A consultant from there and from Rehab

Management suggested the plaintiff look at doing the sort of jobs he was

doing in South Africa in the I 980s and 1990s; however, that was not feasible.

Working as a locksmith would involve a lot of carting and carrying, bending

and stretching, and the plaintiff would need retraining. Other jobs, such as

assembly and handling work, were physically active, Even a console operator

required a degree of physical fitness.

The consultants had told the plaintiff that when applying for a job, not to

mention his bad back.

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91 Since finishing the placement, the plaintiff has been looking for work online

and QBE has helped him with a company called Workable Solutions, and he

is now doing a six-week supervisory course at Chisholm TAFE to enhance his

employment prospects. This course finishes at the end of the June. 32

The plaintiff recalled a rehabilitation person from WorkCover suggesting

jobs. 33 The plaintiff has had no experience in insurance and was not sure he

was suited for that type of work. 34

When jobs were suggested to him, the plaintiff agreed he said he would rather

complete the course first. There was no point going for jobs while he still had

to do the placement. 35

The plaintiff would be happy to try to take a job, if he could, in one of the

suggested fields, " and he would try any position. 37

The plaintiff agreed that his recent qualification as a case manager does not

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involve hands-on caring work. It involves writing care plans and case

managing aged people. He agreed the lob involved a lot of the duties of a

case manager and support worker described in the April2016 Labour Market

Analysis. " He agreed it was a varied job, and he was not sitting at a computer

all day and he could change his posture. 39

The plaintiff has applied for a 23-hour per week part-time job at Regis in aged

care, but has not heard anything back about that job. He has not spoken to Dr

Downe about it because it is so recent. Dr Downe has told him part time would

be suitable. 40

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97 The plaintiff agreed a lot of the jobs in case management/support worker roles

were part time. He tried to be positive. He was trying to believe there were

jobs for him but, from what he had heard about injured people he was "barking

up the wrong tree" and was "trying just to shut that message down. " That was

the reason he was applying for jobs and he would continue to do so no matter

what the outcome of his case. 41

98 The plaintiff was still going to try to get work. He did not want to go on the

dole. However, he would soon be fifty-two with an injury that pain medication

barely helped, so he was concerned who would hire him. 42

99 The plaintiff denied that he was not seeking work, or that he had just started to

do so when his weekly payments ceased. He had applied for work while still

on payments. " He has sought conciliation in relation to his entitlements to

weekly payments, 44

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diploma, but he still had not graduated. ''1f he was offered work, he would ask

for a chance to try a job such as the one at Regis. 46

101 The plaintiff agreed he was interested in the case management area and he

expected to enjoy that work. That role would allow him to vary his posture and

it was not likely to require heavy lifting. " He agreed it fitted in quite nicely with

the certified restrictions. He also agreed it was the work of a type that he

expected to be able to maintain once he had found a job and that his hours

depended on his tolerances and management of pain. 48

102 The plaintiff agreed that, save for the time off for 2014 operation, he had been

in work more often than not and that he would be attractive in that regard to a

potential employer. 49

103 The plaintiff has been kept on the books at DutchCare, and there is a possible

prospect of work there once he is qualified. He has not followed that up yet,

but he intends to do so. The plaintiff did not think they had part-time positions,

but he might be able to participate in one of the lifestyle programs. DutchCare

were really nice people and he would like to work there. " If they offered him,

say, 30 hours a week, he would give it a try. 51

104 The plaintiff manages to get by with computer use. He would agree he is at

intermediate level. " He would not have any problems with computer use in a

case management role. 53

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The plaintiff was surprised Dr Downe mentioned the possibility of an

escalation of hours from the I5 hours currently certified. 54

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Activities

The plaintiff bought a new kayak on 25 September 2015 with peddles and a106

firm seat. He tries to kayak once or twice a month.

The plaintiff is able to go kayaking from time to time. " He could get the kayak

off his car without hurting his back by using a mechanism that has been

installed. The kayak has pedals which makes it easier to operate, He uses it in

a sheltered environment like Westernport Bay. 56

The plaintiff has not been snow skiing since the winter before the injury.

The plaintiff agreed he went to Port Arlington with his caravan during the

placement. 57

The plaintiff could think of three times he had driven to Port Arlington since the

2014 operation. He could drive for an hourand-a-half uninterrupted but not

comfortably. He moved around and squirmed and hoisted himself on the left

armrest. After such a trip, he was very stiff and could not move and needed to

walk around and stretch. If he sat for around 45 minutes he experiences a

burning sensation in the top of his left foot.

The plaintiff agreed he went cycling for pleasure and during his placement he

might have gone once or twice. He could manage the placement to a point

where he could still enjoy his recreational activities on the weekend. 58

Gardening is the type of activity which may cause an exacerbation and the

plaintiff always has to wear a brace when gardening, or when doing any

physical activity. He agreed that he cut a tree down with a chainsaw over last

summer whilst he was doing the placement. 59

The plaintiff explained he did sporting activities, such as the kayaking, on

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weekends, to keep his mind off his issues. It was an escape, - and gave him

some exercise. 60

Current back condition and treatment

The plaintiff consistently has left leg and buttock pain. He has intermittent4/4

right leg pain. With these flare ups there is pain in the right hip and sometimes

in the thigh. If he is exerting himself, the pain goes lower to the calf.

115 The plaintiff is a lot less irritable since stopping work and is better to be

around. He recently received notice that WorkCover would not continue to

fund the psychologist or physiotherapist treatment. He is also waiting to hear if

WorkCover will fund a gym membership.

The plaintiff is presently attending the five-visit Medicare Physiotherapy

Program. He is a bit reluctant to attend because it still costs him $30 a visit. 61

The plaintiff has difficulty trying getting to sleep and staying asleep.

The plaintiff thinks the inability to perform his normal work and the sporting

activities has caused him to suffer greater anxiety and depression. He

modifies his activities by "listening to his body". He tries not to take

medication. However, he occasionally takes Trainadol and/or Mobic when his

back pain gets worse.

At the moment, the plaintiff is taking Tramadol four days a week. Although he

tries not to take it, the plaintiff still takes Mobic four days a week. " The plaintiff

agreed that he is now taking more medication when not working as he is

taking DiazePam more frequently. 63

116

1/7

118

119

60

61

62

63

T56

T43

T37

T38

VCC:SAILMIAS18 JUDGMENT


The Plaintiff's treaters

The plaintiff's general practitioner, Dr Downe, most recently reported on 3120

February 2016. He noted the presenting complaint and the plaintiff's

subsequent progress and the 2014 operation.

Following that procedure, there was slow and incomplete improvement and

there was a further MRI scan in November 2044. Mr Wilde did not think that

further surgery was likely to be of benefit. He noted that the plaintiff was keen

for a further opinion from Mr Goldschlager, neurosurgeon.

Dr Downe noted the opinions that further surgery could be performed but the

procedure was predicted to have a very significant failure rate. Therefore,

there had been no further surgery.

Dr Downe reported the plaintiff had been little different for the past year with

daily pain and stiffness in his low back.

Dr Downe noted that since the incident, the plaintiff had returned to pre-injury

work with modification to both hours and lifting duties. This ended when his

work position ceased.

The plaintiff had been unemployed since 22 June 2015. Dr Downe considered

he remained restricted in his work capacity to 15 hours of work with lifting

modifications of 5 kilograms generally or to kilograms of lifting at waist height.

Dr Downe thought this could be escalated as tolerated when a suitable

employment position was found.

Dr Downe noted the plaintiff still reported that limited increase in physical

activity caused increased back pain. Extending his physical stamina remained

a challenge to the plaintiff's injury and Dr Downe believed QBE had appointed

a case manager to assist future employment.

421

122

123

424

125

126



127 Dr Downe thought further long-term improvement was currently elusive, He

also noted the plaintiff had some significant depression over the course of his

condition but had responded positively to Lexapro as an antidepressant.

The plaintiff's operating surgeon, Mr Wilde, most recently reported to Dr

Downe in November 2014 following a recent MRI scan,

Mr Wilde advised the plaintiff that his pain continued to be mechanical rather

than radicular and he did not think he could help with further surgery. He

preferred the plaintiff battle on as best he could in the hope that in time he

would stabilise.

128

129

130 Mr Wilde noted the plaintiff asked many questions about the workplace on that

examination. It was clear to Mr Wilde that the plaintiff was in dispute with his

employer about tasks performed on a particular machine. Mr Wilde noted the

defendant was not prepared to assist the plaintiff and he suggested, perhaps,

the plaintiff could request an occupational position workplace assessment

through WorkCover.

Mr Wilde advised the plaintiff to remain as active as he could and to battle on

as best he could. He thought the plaintiff saw himself as a victim which, of

course, in the WorkCover setting, put him at some risk of losing his job, which

would be a disaster. If pain became an issue, Mr Wilde suggested it might be

worthwhile requesting review by Dr Andrew Muir or Dr Thomas at the

Melbourne Pain Group.

Mr Bell, physiotherapist, recently reported in November 2015.

At that stage, the plan was for the plaintiff to have a further six-month gym

membership and twelve physiotherapy sessions over the next year and then

review.

434

132

133

134

VCc:SAILM/As

Mr Bell noted the plaintiff had been consistently diligent with his rehabilitation.

Despite showing some signs of fear avoidance, he had not let this affect the

20 JUDGMENT


way he had applied himself to his rehabilitation. He was starting to get some

lasting relief as his strength was building and it was reasonable to enable him

to continue his rehabilitation.

135 Physiotherapy started at that practice on 24 January 2014 and was then

monthly. Mr Bell noted that the plaintiff's strength and endurance were

continuing to improve,

Mr Goldschlager first saw the plaintiff on 26 March 2015, with subsequent

reviews until4 June 2045.

136

137 The plaintiff reported that following the nerve root injection, his pain did not

improve at all and it in fact reproduced his symptoms. Mr Goldschlager felt

that this result, together with the MRI findings, were suggestive that the

plaintiff's pain was likely to be coming from nerve root compression and he

discussed further surgery with the plaintiff.

Mr Goldschlager estimated a 60 to 70 per cent chance of improving the

plaintiff's pain with further surgery, which was less than what was quoted prior

to the 2014 operation.

The plaintiff required some time to think about further surgery and he had not

seen Mr Goldschlager since.

Mr Goldschlager thought it was possible that the plaintiff had a left SI

radioulopathy. He understood the plaintiff did have an injury which caused an

L4-5 disc prolapse, for which he had surgery.

The condition that he believed the plaintiff may now be suffering from was at a

level below and he was also uncertain as to whether that was related to work.

He was uncertain as to the plaintiff's current capacity for work, not having

seen him for six months.

438

139

140

141



Medico-legal examiners

The plaintiff was examined by Mr Rodney Simm, orthopaedic surgeon, in142

March 2016.

143 The plaintiff told Mr SImm that he suffered from constant pain, varying in

intensity, which may still be severe. It was worse than it was prior to the 2044

operation and the most severe pain was around the left buttock from where

the pain radiated into the left lower limb.

Mr Simm noted the plaintiff presented in a straightforward and co-operative

manner, Neurological examination of the lower limbs showed no clear

physical signs of radiculopathy and no significant difference in calf

circumference.

444

145 Mr Simm had some difficulty establishing the exact contribution to the clinical

cause of the low-back condition arising from the incident, noting the I 998

operation from which the plaintiff was said to have recovered fully and

returned to full activity.

Mr Simm thought the mechanism of injury in the incident could certainly be

responsible for causing back strain which aggravated and/or disrupted pre-

existing degenerative changes at L4-5 and L5-SI.

Mr Simm thought that on the basis of the plaintiff's history after the incident,

he had not been capable of continuing his pre-Injury duties and despite a

graduated reduction in hours and the physical demands associated with his

job, he was still unable to adequately cope with work and was eventually

retrenched.

146

147

148 When asked specifically if he could continue with light assembly and office-

based employment, with his duties at time of retrenchment, the plaintiff

responded "if those duties were available in the long term in could have

remained at work performing them".


, Badsey v Dejay Medical & Scientific Pty Ltd

149 Mr Simm thought the plaintiff's incapacity for physically demanding work and,

in particular unrestricted pre-injury work, was permanent.

From the incident date until the present, Mr SImm thought the plaintiff was

incapacitated for work involving prolonged sitting, standing, walking, driving

for long, repeated lifting in excess of 5 kilograms, occasional lifting in excess

of I O kilograms, repeated and sustained forward bending and twisting

movements of the trunk. He considered the plaintiff should be confined to

handling these weights between knee and chest height and that these

restrictions were permanent.

Mr Simm was not able to provide an arbitrary list of restrictions in relation to

the plaintiff's proposed employment in Community Services, but he would

anticipate that the plaintiff would have trouble with unrestricted sustained

postures of sitting, standing and walking, and he would need flexibility with

those postures. He would also expect the plaintiff to have difficulty with

physical work, such as physically assisting disabled clients, and that he

should be confined to light activities that limited the use of his upper limbs to

handling objects between knee and waist height.

In a supplementary report, Mr SImm described the diagnosis relating to the

incident as persistent dysfunction of the lumbar spine as a result of

unresolved aggravation of lumbar disc degeneration treated surgicalIy. He

thought the plaintiff had referred symptoms into the lower limbs without

objective clinical signs of radiculopathy. He noted the symptoms from the

plaintiff's degenerative condition that were pre-existing were exacerbated by

the incident and had not returned to pre-injury level.

Mr Simm thought it was not possible to determine with certainty whether the

symptoms related to investigation findings of pathology at L4-5 and L5-SI.

The presence of this pathology on imaging in association with the symptoms

suggested, but did not confirm a relationship. He noted surgery at L4-5 was

150

151

152

453

VCC:SAILM/As23 JUDGMENT


unsuccessful. The changes on the investigations did not represent damage

and almost certainly had no relationship to the physical injuries sustained at

work. The changes were constitutional degenerative changes. These changes

compromised the lumbar spine and predisposed those levels to injury, but

whether that was precisely what occurred could not be established.

Mr Simm concluded the plaintiff's history indicated that the incident was a

significant contributing factor to his symptoms related to the L5 nerve root.

Dr David Middleton, occupational health and rehabilitation consultant,

examined the plaintiff in May 2016.

Dr Middleton noted the plaintiff's progress at work after the 2014 operation,

initially working I O hours a week building up to 20 hours per week, after which

he commenced performing some small demonstrations which included driving

to see customers.

154

155

156

157 On his return to work in January 2015, the plaintiff started to gradually expand

the nature of his work to include larger equipment and longer trips increasing

to 25 hours per week. After one or two weeks, he felt unable to maintain that

level of activity and his hours were reduced to 15 hours per week and he was

handling smaller equipment.

The plaintiff requested the defendant purchase some lifting equipment but it

refused. Between April and July 2015, the plaintiff was placed back in the

office performing some assembly of equipment in the warehouse. On 22 July

2015 his employment was terminated.

The plaintiff commenced a Diploma in Case Management Community

Services in 2014 and finished it in March 2016.

,

158

159

160 The plaintiff complained his main pain was in the lower back, radiating into the

left buttock. There is a similar pain down the back of the left thigh to the

dorsum of the left foot.

VCc:sNLM/As

,

24 JUDGMENT

Bedsey v Delay Medical & Scientific Pty Ltd

161 Dr Middleton thought that as a result of the incident, there was derangement

of the plaintiff's L4-5 and L5-SI discs. Due to constant pain, the plaintiff had

developed significant depression.

Dr Middleton considered that the plaintiff's back injury from the incident had

rendered him incapacitated in relation to any activity and/or employment

requiring prolonged sitting, standing, walking, squatting, lifting in excess of 5

or 10 kilograms repetitively and prolonged foiward flexion.

Dr Middleton thought that on a permanent basis, the plaintiff no longer had the

safe physical capacity to undertake pre-injury duties as a sales representative

selling rehabilitation equipment or modified duties on a full-time or part-time

basis.

162

163

164 Dr Middleton considered that the plaintiff was limited to part-time work and

should avoid operating machinery that avoided the availability to undertake

rest breaks and operate in a self-paced manner,

Having been out of the workplace for about eighteen months, " Dr Middleton

thought any attempted return to work for the plaintiff, would require a

graduated return to work plan commencing on two to three hours in any one

day, two to three non-consecutive days in any one week. Those hours

needed to be monitored and increased in accordance with ensuring that the

plaintiff's symptoms and pain remained manageable and did not impinge on

his non work time.

165

166 Dr Middleton also thought the plaintiff no longer had a reliable capacity and

any employer would need to accept that his attendance at work could not be

relied upon. He considered it best if the plaintiff could attend work to a

maximum of fifteen hours a week.

64

VCc:sNLM/As

Employment was in fact terminated on 22 July 2015

25 JUDGMENT


167 Dr Middleton thought it important to recognise the plaintiff could never be

regarded as being work shy and had been proactive in obtaining retraining. In

theory, he had some capacity to perform sedentary work. He noted no

assessment of the physical requirements of the inherent work of the proposed

suitable work options had been undertaken, and the fact the plaintiff's physical

capacity was significant and not necessarily reliable and that the training

provided by WorkCover had been inadequate. The plaintiff's capacity to

procure and maintain such employment, in Dr Middleton's opinion, was

negligible.

Taking into account all aspects of the definitions of "suitable employment",

"current work capacity" and "no current work capacity, " and noting the

significantly physical nature of work as a personal carer, Dr Middleton thought

the plaintiff did not have the safe physical capacity to undertake such work

either full or part time.

Dr Middleton noted that work as a community support worker had a wide

spectrum of physical requirements but there were some areas that were not

reliant upon an excellent physical capacity. The issue then became the

plaintiff's reliability in attending to such work and the physical restrictions that

needed to apply for such work to be suitable.

Dr Middleton thought the plaintiff did not have the capacity to undertake work

of more than fifteen hours per week and that an employer would have to be

extremely supportive of the plaintiff's injuries to provide him with a reasonable

prospect of gaining paid employment as a community support worker and

should also be subject to him gaining commercial levels of computer skills.

168

169

170

471 Professor Love examined the plaintiff on the defendant's behalf on I O

February 2045.

Professor Love thought the decompressive procedure of the nerve root in the

2044 operation had not brought about sufficient symptomatic improvement

172



and that repeat surgery was indicated, He considered it was reasonable to

accept that the incident was the cause of the plaintiff's current condition.

Professor Love thought the plaintiff could not return to work in his pre-injury

duties. He needed to remain on modified duties and with the avoidance of

repeated bending or stooping, heavy lifting or prolonged standing

173

Vocational evidence

Ms Anna Webster, recruiter from Employment Professionals, provided a174

report in April 2016 advising as to the entry level earnings and the skills

required in the suggested jobs of sales representative, retail customer service

officer, locksmith, car rental officer and insurance agent.

The Defendant's medical evidence

Pre 2014 operation

Dr George Wilson, occupational health physician, examined the plaintiff in

February 2014 and carried out a worksite assessment on 26 February that

year.

I75

176 Dr Wilson noted the plaintiff had been working full as a sales representative

and developed lower back pain as a result of heavy lifting on 29 March 2013.

The plaintiff had seen an orthopaedic surgeon and had a lumbar epidural in

September 2013 without significant effect. Dr Wilson noted the MRI scan

showed left paracentral disc protrusion at L4-5 impinging on the left L5 nerve

root.

I77 Fusion surgery had been discussed with an orthopaedic surgeon, but the

plaintiff was not keen to go ahead as he had had previous lumbar surgery in

1998.

I78 The plaintiff had been working eight hours a day, as the defendant had cut

everyone back to four days a week due to a decline in work volume. The

plaintiff subsequently reduced his hours to three days a week due to ongoing



lumbar symptoms.

The plaintiff told Dr Wilson he was managing reasonably well at work as long

as he wore his external lumbar brace and was careful in his actions.

179

180 At that stage, there was a current return to work program on , O February

2014. The plaintiff was doing office duties, including administration and

computer-based duties, and he was doing small equipment repairjobs in the

workshop. He was also doing small equipment deliveries, driving a small van,

which he could drive for half an hour without a particular problem.

The plaintiff advised he was able to manage his current working hours of

Monday, Wednesday and Thursday from 8.30am to 4.30pm. He was hopeful,

after the assessment at Melbourne Spinal Clinic, there may be some other

intervention al procedures to reduce his pain, noting he was not keen at all to

have a fusion operation.

Dr Wilson noted the extra day was too much for the plaintiff's symptoms and

he needed extra time, both to attend his the rapies, and also have some rest

between his work days.

Dr Wilson thought the plaintiff was, then, not able to increase his hours, and

depending on the spinal assessment, he may be offered further treatments of

benefit.

184

182

183

184 Dr Wilson noted that Ms Stephens, the defendant's Victorian state manager,

thought the plaintiff was currently working at his capacity and did not want him

to exceed his current physical workload in the event he aggravated his back.

Considering it was then almost a year since the plaintiff had been having

ongoing lower back pain, Dr Wilson thought it may be that he would not return

to his full pre-injury duties, but that remained to be seen. He thought the

plaintiff was then doing the best he could and the current return to work

program was appropriate.

,85


Badsey v Delay Medical & Scientific Piy Ltd

186 In a subsequent report of May 2014, Dr Wilson agreed that an L4

microdiscectomy was reasonable surgery. It would reasonably be expected,

post operative Iy, the plaintiff would be expected to return to work two months

later and then proceed to sedentary duties on restricted hours,

As per the worksite assessment, Dr Witson thought the plaintiff could certainly

go to office duties, initially, and then move to small equipment repair, and then

smaller equipment deliveries. He suggested a review six to eight weeks post

surgery.

Post 2014 operation

Dr David Barton, consultant occupational physician, saw the plaintiff on 7

October 2014 and conducted a worksite assessment a week later. He last

saw the plaintiff on 9 February 2015.

At the time of the first examination, the plaintiff was working three hours a day,

three days a week, doing a series of lighter duties. His hours increased to 25

hours of work per week spread over five days, but had recently reduced to 4

hours of work a day, doing lighter duties because of increasing symptoms.

The plaintiff complained of lower back pain extending towards the left side and

down the left leg.

Dr Banon then believed the plaintiff would graduate back to the duties

reviewed during the worksite assessment. Depending on his progress, he may

then be able to graduate back to more normal work.

Dr Barton had some reservations about the plaintiff's presentation. He noted

that the plaintiff had back surgery, although the surgeon appeared somewhat

reluctant to think the operation helped. Unfortunately that had proved to be the

case.

187

188

189

190

191

192

193 On re-examination in February 2015, the plaintiff was now reporting some

right sided symptoms, which Dr Banon thought did not fit with a



straightfoiward problem. There were now more features indicative of a degree

of illness behaviour, in particular, the increasing symptoms with axial loading,

the discrepancy between the plaintiff's limited straight leg raising and postures

noted at other times, the non"anatomical sensory changes and the global

weakness throughout the leg.

Dr Barton thought the suggestion of injections at a pain clinic was

contraindicated. That sort of treatment had not gained acceptance in the

wider medical community and with the degree of illness behaviour present, he

believed it was specifically contraindicated in this case. He thought the

plaintiff needed more appropriate reassurence and encouragement to

increase his level of physical activity to exercise and get back to more normal

duties and hours,

194

195 On most recent examination on 10 May 2016, the plaintiff described constant

lower back pain that extended towards both sides.

The plaintiff had been seen by a neurosurgeon who felt he might benefit from

an operation at L5-SI. A nerve root block, had no effect on the plaintiff's

symptoms.

On examination, Dr Banon confirmed there was still a degree of illness

behaviour apparent.

Dr Barton concluded that, in as much as surgery was accepted as part of the

plaintiff's claim, that it would be reasonable to conclude this was a work injury.

He commented, however, it was difficult to account for the plaintiff's more

generalised symptoms. He noted physically, the plaintiff appeared to have

recovered from the 2014 operation, as there was no objective evidence of any

ongoing radiculopathy or neurological compromise.

Dr Barton thought the plaintiff appeared to have some minor radiological

findings at L5-SI, but those could be considered of questionable relevance as

196

.

197

198

199



they did not correlate with any physical examination findings. Dr Barton did

not think it was a new injury, simply a radiological finding since undergoing

spinal surgery at L4-5.

Dr Barton did not think the symptoms fitted well with any particular problem at

L4-5 or L5-SI. He noted the objective evidence was lacking and there were

features of overlay, which he believed undermined the plaintiff's claim for

disabling symptoms.

Dr Banon thought physically, the prognosis was very poor, but he doubted the

plaintiff was going to report any improvement or any particular recovery. Dr

Banon doubted any further surgery would make any difference as features of

overlay were usually poor prognostic indicators of any treatment making any

further difference.

200

201

202 Physically, Dr Banon questioned whether the underlying problem has had

much of an effect on anything. He believed most of the plaintiff's problems

related to his attitude to his problem, the illness behaviour and features of

overlay.

From a simple, physical point of view, Dr Barton could see no particular

reason why the plaintiff could not get back into either pre-injury work or a

similar role. Some minor weight lifting limits and avoidance of awkward or

constrained postures would be appropriate during the early stages, and then a

graduated return over several weeks appeared to be the norm.

Dr Banon did not believe there was a permanent incapacity, and thought the

plaintiff was fit to participate in rehabilitation, retraining and job seeking.

Dr Banon could not see any reason why the plaintiff could not do other case

management type work given his recent diploma. He thought the plaintiff was

fit on a full-time basis to undertake the jobs nominated in the labour market

analysis of April20,6.

203

204

205



206 Dr Banon believed the major contributor to the plaintiff's current incapacity

was his attitude to his problem and his illness behaviour. Had the injury not

occurred, Dr Banon could see no reason why the plaintiff would not have

been able to continue working.

Dr Banon did not believe the radiological findings at L5-SI had any clinical

significance.

Dr Sam Soliman, occupational medicine consultant, examined the plaintiff on

23 November 2015 and provided a supplementary report in May 2046. The

purpose of the examination was to provide advice on the plaintiff's entitlement

to payments and medical services.

The plaintiff then reported constant lower back pain, 5 out of I O in severity,

which could flare to 8 out of 10. He was taking Trainal and Mobic when

needed, which was rarely.

The plaintiff told Dr Soliman of the resolution of a disc bulge in I 998, after six

months. Otherwise, Dr Soliman did not have any details of this injury.

Dr Soliman noted the findings following the upright MRI scan.

On neurological examination, the lower limbs showed normal reflexes, but

reduced sensation across the left side SI dermatome.

Dr Soliman thought the plaintiff suffered from chronic lower back pain

secondary to disc protrusion at L4-5 and L5-SI, which may have been caused

by heavy lifting at work.

207

208

209

210

211

212

213

214 Dr Soliman noted the plaintiff still has ongoing lower back pain to which

employment remained a contributing factor.

Dr Soliman considered that the plaintiff would not be able to return to pre-

injury duties, but he could return to alternative duties. He considered the

plaintiff had a current work capacity for alternative duties, where he was able

215

VCCISNLM/As 32 JUDGMENT


to sit and stand as tolerated, and there was no bending or lifting below waist

height, with the maximum lifting of five kilograms at waist height.

Dr Soliman thought the plaintiff had the capacity to participate in a return to

work program and vocational assessment, noting he was not having any

treatment, and no specific treatment was required apart from pain

management and regular self exercise, unless the plaintiff decided to have

surgery.

216

217 Dr Soliman considered it highly unlikely the plaintiff's current L5-SI discogenic

pain was related to his L4-5 coinpensable surgery, noting Professor

Goldschlager was of the same view.

Dr Soliman thought the plaintiff's pre-existing L5-SI condition would naturally

deteriorate with age and time and cause intermittent symptoms flare up.

It was difficult to estimate an exact timeframe at which the plaintiff would have

ceased work because of his pre-existing back condition but, in general, Dr

Soliman noted if someone had a pre-existing back condition or had surgery in

the past, it was highly unlikely they could continue doing work which required

manual activities in their fifties.

218

219

220 In terms of the L4-5 injury, Dr Solimon thought the plaintiff was fit to

participate in rehabilitation and job seeking. He was fit to work full hours on

alternative duties where he was able to sit and stand as tolerated, there was

no bending or lifting below waist height, with maximum lifting of five kilograms

at waist height.

Given the plaintiff's recent diploma, Dr Soliman thought the jobs suggested in

the April20,6 market analysis were suitable and reasonable employment for

him, and he was fit to work full hours on alternative duties.

Dr A1an Jager, psychiatrist, examined the plaintiff in December 2015. He

diagnosed a Chronic Adjustment Disorder with Anxiety and Depressed Mood

224

222



and thought monthly psychological counselling was reasonable and

appropriate. He considered the plaintiff could return to work within his physical

restrictions. There were no psychiatric restrictions and the plaintiff did not

require psychiatric review.

The plaintiff was examined by Mr Ian Jones, orthopaedic surgeon, on 9

February 2046.

Mr Jones noted, despite ongoing symptoms, the plaintiff returned to work on

restricted duties and hours, Some limited road trips were also undertaken.

The plaintiff gradually increased his number of hours to 25 per week, but this

led to an increase in symptoms and had to be reduced to 10 hours per week.

Eventually, on 22 July 2015, he was retrenched, and had not worked since.

He then had undertaken study.

223

224

225

226 On examination, the plaintiff described a constant discomfort in his lower

back. There was a constant cold sensation in the left leg.

Mr Jones noted, in the short term, the plaintiff was likely to experience

ongoing symptoms of back pain and neurological symptoms involving the left

lower limb. He noted the plaintiff was currently considering further surgery.

Mr Jones thought the incident could have caused or aggravated a disc

prolapse at either L4~5 or L5-SI, and could well be responsible for disc

protrusions at the L4-5 or, more recently, as disclosed in the post'surgical MRI

scan and the MRI scan of I April2015.

Mr Jones believed employment with the defendant had been a significant

contributing factor. He considered the proposed surgery at L5-SI had some

chance of improving the plaintiff's left leg pain, and was reasonable.

Mr Jones thought the back Injury suffered by the plaintiff had significantly

impacted on his day-to-day activities and enjoyment of life, noting the plaintiff

227

228

229

230



denied any residual effects of the I 998 condition.

Mr Jones thought the plaintiff did not have a capacity to undertake his pre-

employment duties and was unlikely to ever return to physical employment.

He considered the plaintiff was not fit for any work which required repeated

bending or lifting and he had a permanent incapacity for physical employment.

In a supplementary report, Mr Jones noted that given Mr Wilde's diagnosis

and his 2014 operation, he believed it more likely than not that the incident

injury was the basis of the plaintiff's back symptoms at that time, It was not

possible to confirm whether all, or some, of his lumbar back symptoms and

left leg complaints related to the effects of the incident injury, or the long term

results of previous back injury and surgery in 1998.

Mr Jones believed the plaintiff was capable of undertaking rehabilitation

retraining and job seeking, and believed him to be fit for full-time light work in

modified duties. He thought the plaintiff, on a full-time basis, would be

capable of the positions of case manager, support worker, community work,

case worker, care and protection worker and care coordinator.

Mr Jones believed the plaintiff suffered an L4-5 disc injury as a result of the

incident, from which he had not recovered. The plaintiff's back symptoms

could be either from L4-5 or L5-SI levels. In the left leg, the x-rays were more

suggestive of pathology at L5"SI level as being responsible for left leg pain.

On the available information, Mr Jones thought the most likely major

contributing factor to the plaintiff's incapacity related to the effects of the

progressive degenerative effects at the L5-SI level.

In a medical certificate of 8 February 2016, Dr Downe certified the plaintiff fit

for modified duties for 15 hours a week, with duties such as office work or

limited bending and minimal lifting from ground level with maximum Weight, 5

kilograms, or lifting IO kilograms from waist height.

231

232

233

234

235

236



237 Dr Downe completed a General Practitioner Standard Report for Worksafe

Victoria on 8 March 2016. In that report, he repeated the details of his most

recent certificate, noting the plaintiff's 15 hours could be increased as

tolerated. He considered the plaintiff had a good capacity to learn additional

skill sets with retraining.

An undated resume of the plaintiff was tendered by the defendant but not

referred to in address.

238

Vocational documents

An NES Job Seeker Plan of 25 August 2014 set out suitable employment239

option goals as sales representative - pharmaceutical or insurance, retail,

customer service officer, locksmith allied work and car rental officer.

240 A Joint Return to Work Job Seeker Plan dated 9 December 2045 set out the

plaintiff was currently fit for work for I5 hours per week.

Certificates

On 24 December 2014, Dr Downe certified the plaintiff fit for modified duties24t

as per the return to work plan of hours, He recommend the plaintiff remain at

20 hours for the weeks starting 12, ,9 and 26 January 2045 and trial week

starting 2 February 2015 at 25 hours per week.

In his certificate of 43 February 2045, Dr Downe noted an ongoing trial of 25

hours per week to I March 2015. His certificate of 18 February 2015 set out a

reduction in hours starting 19 February 2015 to 20 hours per week. There was

a further reduction to I5 hours modified duties per week on 10 March 2015,

.

242

Overview

There was some focus in recent medical reports obtained by the defendant on243

the involvement of the L5~SI level in the plaintiff's present condition, in light of

surgery at that level in the 1998 operation. However, this issue was not raised

by counsel for the defendant in addresses save for commenting that Mr Jones



opined as to the plaintiff's work capacity on the basis of his lumbar condition

as a whole, not confining himself to the L4-51eve1.65

Counsel for the plaintiff submitted Dr Soliman, in expressing his view as to the

plaintiff's current work capacity, had answered the wrong question, not

addressing the plaintiff's back condition as a whole, 66

Pain and suffering was conceded by the defendant on the basis of an injury to

L4-5 in the incident, and surgery at that level; however, in terms of loss of

earning capacity, counsel for the defendant submitted the plaintiff had a

residual capacity and does not suffer the requisite loss. 67

It was submitted the 15 hours was an arbitrary figure and a "bit artificial, "" Not

only does the plaintiff have a residual capacity, but it is one exercisable in the

labour market, predominantly in the role for which he has retrained. Further,

those skills extend to a number of sedentary jobs, such as sales and

insurance, which have a similar earning range. " In those circumstances, the

plaintiff could not establish the requisite loss if working full time or working

substantial hours on a part time basis.

The parties agreed the "without injury" figure was $65,000, or slightly below

$1,300 per week. 70

It was submitted on the plaintiff's behalf that his maximum capacity is fifteen

hours per week and on that basis, he has suffered the requisite loss, not

having the capacity to earn in excess of $780 per week on a permanent

basis. 71

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7,

Pain and suffering having been conceded, there was no suggestion that the

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plaintiff's lumbar condition lacks a substantial organic basis. 72

250 As there was no evidence of any ongoing lumbar problems pre incident

relating to the I 998 injury, it was not submitted that this is an aggravation

case where the principles in Petkovski v Galletti" apply.

Credit

251 As Maxwell P said in Haden Engineering Pty Ltd v MCKinnon:

"... the weight to be attached to the plaintiff's account of the painexperience will, of course, depend upon an assessment of the plaintiff'scredibility. ', 74

As I indicated to the parties, I found the plaintiff to be a very credib!e, stoic

witness, who was obviously in extreme discomfort while giving evidence,

frequently needing to stand up and stretch in the witness box, 75

Counsel for the plaintiff endorsed my comments as to the plaintiff's credit,

stoicism and difficulties with pain and concentration. 76

As Nettle JA commented in Dwyer v Calco Timbers Pty Ltd (N0 2), he

suspected:

"... but for the way the appellant has been prepared to put up with hispain and suffering and get on with his business as best he can, therespondent may well have not disputed his claim But it would be

unfortunate and in my view wrongheaded if in future such an applicantwere treated less favourably than another who, being of less strength ofcharacter, simply resigned himself to his injury. "77

In response to my comment that there had been no attack on the plaintiff's

credit and that given his obvious physical discomfort and inability to sit for long

in the witness box, he would be hard pressed to work more than I5 hours per

week, " counsel for the defendant submitted giving evidence was a stressful

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77

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Meadows v Lichmore Pty Ltd t201 31 VsCA 201rig941I VR436Haden Engineering Pty Ltd v MCKinnon (2010) 31 VR I at paragraph if 21T18 - early in cross-examination, the plaintiff asked if he could standT81

Dwyer v Calco Timbers Pty Ltd (N0 2) [2008] VsCA 260 at paragraph 141T63



situation and that the whole of the plaintiff's evidence had to be considered,not just his demeanour in court, 79

256 Whilst counsel for the defendant submitted there was very little mention in th

plaintiff's affidavits of him struggling with the placement and having the level ofincapacity that he described in the witness box '' in my view, he conceded a

significant level of activity in his affidavits which adds strength to his evidenceoverall, as his counsel submitted. ''

Loss of earning capacity

Having satisfied the narrative requirements to obtain leave in relation to loss

of earning capacity, the plaintiff must also establish that -

(a) at the date of the hearing, he has a loss of earning capacity of 40 percent or more - SI 34AB(38)(e)(i); and also

257

(b) after the date of hearing, the relevant loss of earning capacity willcontinue permanently - SI34AB(38)(e)(ii).

The measurement of loss of earning capacity is set out in paragraph co whichrequires a comparison between:

258

(1) "without injury" earnings; and

(ii)

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"after injury" earnings,

The former must be calculated by reference to the six year period specified inSI34AB(38)(f).

260 "Without injury" earnings consist of the gross income (expressed at an annual

rate) that the worker was earning or was capable of earning from personal

exertion or would have earned or would have been capable of earnin from

personal exertion had the injury not occurred.

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VCC:SAILM/As 39 JUDGMENTBadsey v Dejay Medical & Scientific Pty Ltd

261 It is to be calculated by reference to that part of the period within three years

before and three years after the injury as most fairly reflects the worker's

earning capacity.

The plaintiff carries the on us of proof in relation to economic loss and

particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and

(g) therein, See Barwon Spinners Pty Ltd & Ors v Podo/ak. 82

The without injury earnings figure having been agreed, the issue in this case

is whether the plaintiff has a capacity to earn in excess of $780 per week.

I accept the plaintiff continues to suffer significant constant left buttock and left

leg pain and intermittent right leg pain. He regularly takes strong painkilling

medication in the form of Trainadol, and also takes Mobic. Surgery has been

suggested but the plaintiff is reluctant to undergo any further surgical

procedure given the lack of improvement following the 2014 operation,

The plaintiff does not believe he has the capacity to work full time andconsidered he was fit to work in the recent placement for only 15 hours per

week. This was the level he was able to work at the time his employment was

terminated in July 2015.

The plaintiff had difficulty working 15 hours per week in office and lighter

duties before his employment was terminated. As he readily conceded, had

his employment not been terminated, he would have continued working on

this basis. I am not satisfied however, that he could have increased his hours

in these duties on a consistent, ongoing basis.

Pre termination of his employment and post the 2014 operation, the plaintiff

had not demonstrated any capacity to do these light duties for more than 15

hours per week. He had particular difficulty with extra hours that required

more driving and carrying out demonstrations. There were only a couple of

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VCc:sNLM/As

(2005) 14 VR 622 at paragraph 1701

40 JUDGMENT


*

weeks where he worked 20 hours and the one week of 25 hours was too

much for the plaintiff and his hours were again reduced to 15 per week.

I accept that having graduated from the course, the plaintiff would return to

work if he was physically capable of doing so. As his counsel submitted, the

plaintiff had done everything right, " having battled on at work for two years

following his injury. Both pre and post the 2014 operation, he tried to increase

his hours but was unable to do so on any sort of consistent basis without an

increase in his back pain.

After his employment was terminated, the plaintiff commenced the course with

a view to working in a different, lighter field, but had problems with the study

and also later with the placement, although a reliable attendee. 84

The plaintiff took up the I5 hours available at DutchCare consistent with his

physical capacity. He sought that level of hours when others in the course did

the placement full time because that was what he could cope with. Whether

working consecutive days or having a rest in between, the plaintiff was

fatigued at work and when he got home. He required a nap during the day at

DutchCare and he needed medication to keep going.

Clearly, the circumstances of a course placement differ greatly from those

involved in paid employment where the plaintiff would not be able to lie down

during the day if he was fatigued.

I do not accept there was some inconsistency between the plaintiff's evidence

of tiredness following a day at DutchCare and then doing physical activities on

the weekend. 85

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As the plaintiff explained, weekend activities were an "escape, " a chance to

take his mind off things. The activities were not overly strenuous and were just

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for relaxation. 86

274 Counsel for the defendant submitted those examiners who thought the plaintiff

had a limited work capacity ignored the fact he was studying a number of

hours a week while working. 87

In my view, study at the plaintiff's own pace at home is not the same as being

reliable at turning up to a workplace on a consistent basis. At times, the

plaintiff studied on his computer in bed at home. The ability to study is not an

indication of work capacity. "

Whilst the plaintiff would readily try a range of jobs suggested on a part-time

basis, in my view, he would not be a reliable worker who would be able to

attend on a regular, consistent basis because of his serious back condition

and the need for ongoing painkilling medication which affects his ability to

concentrate, as was apparent in the witness box.

As counsel for the plaintiff submitted, reliability is essential and the plaintiff is

not reliable. 89

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,

I accept that Dr Downe is in a strong position to assess the plaintiff's work

tolerances as his treater. " For some time he has certified the plaintiff fit for

modified duties for I5 hours per week. Whilst Dr Downe thought these hours

could be escalated, he thought that would be on the basis of the plaintiff's

tolerance when a suitable position was found.

Further, Dr Downe thought further long-term improvement was currently

elusive and that extending the plaintiff's physical stamina remained a

challenge.

In my view, 15 hours is about the plaintiff's limit, not the starting point, as

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VCc:sNLM/As 42 JUDGMENT


counsel for the defendant submitted. 9'

284 Irisofar as the medical opinion was concerned in this case, counsel for the

plaintiff submitted focus should be on the views of occupational therapists as

the Court stated in Giankos v SPC Ardmona Operations Ltd (N0 2) :

"Expert opinion evidence must relate to matters which are wholly orsubstantially within the expert's field of expertise. It follows that medicalopinions about the suitability of particular employment for an injuredworker should focus on the physical restrictions which a particularimpairment imposes, rather than on whether the injured person is able todo a particular job. There is a danger that medico-legal experts willstray beyond their field of expertise, and give unqualified opinions aboutthe jobs which can or cannot be done by the worker. Except where amedical practitioner has specialist occupational health and safetyqualifications or experience, a medical opinion as to the work which aninjured worker can perform may fall outside the doctor's area ofexpertise. "92

Accordingly, counsel for the plaintiff relied heavily on the view of occupational

physician, Dr Middleton, who thought it best if the plaintiff could attend work to

a maximum of 15 hours a week.

282

283 Understandably, Dr Middleton noted the plaintiff could never be regarded as

workshy and had been proactive in undertaking and completing retraining.

However, he considered the plaintiff no longer had a reliable capacity to

attend work and carry out his work duties. Whilst the plaintiff had some

capacity for suitable employment, his capacity to procure and maintain such

employment was negiigible.

Although Dr Middleton in expressing his views focussed to some degree on

the case manager work being physical, which is not the case, his comments

apply equally to a lighter role in terms of the plaintiff's reliability to attend a

workplace.

Whilst Dr Baiton is also an occupational physician, his view is of little

assistance. Having diagnosed illness behaviour, he thought, from a simple,

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92T7, , T80Giankos v SPC Ardmona Operations Ltd (N0 2) [2009] VCC 1461 at paragraph t961

43VCc:SAILM/As

JUDGMENT


physical point of view, there was no particular reason why the plaintiff could

not get back into either pre-injury work or a similar role with some minor

restrictions early on. 93

286 This diagnosis and view as to work capacity is not shared by any other

medical practitioner in this case.

287 Addressing the L4-5 injury only and ignoring the involvement of L5~SI in the

plaintiff's present condition, Dr Soliman concluded the plaintiff was fit for full

time restricted duties, including those suggested in the 2016 market analysis

report. "

288 Orthopaedic surgeon, Mr SImm considered the plaintiff was fit for light duties

with significant restrictions but did not specify whether a graduated return to

work was appropriate or the number of hours he thought the plaintiff could

work. " Fellow orthopaedic surgeon, Mr Jones had a similar view as to the

plaintiff's capacity but considered he was fit for full time light work in modified

duties.

289

,

Mr Goldschlager, who reported as the plaintiffs treater, did not express a view

as to his work capacity, stating he was uncertain in this regard not having

seen the plaintiff since inid-2045.

290 As counsel for the plaintiff submitted, Workable did not discuss the hours or

requirements of the jobs suggested, '' it simply provided an analysis of what

sort of work the plaintiff might be able to do within accepted limitations, and

set out a number of possibilities. " There was no analysis of any of the

physical demands of the suggested jobs, like driving, or going up and down

stairs, or prolonged posture. "

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I,

291 Taking into account all the evidence, I am not satisfied that the plaintiff would

be able to work on a consistent basis in excess of 20 hours per week in the

suggested jobs of case manager, support worker and case worker. These

three positions attract a weekly wage of $, ,, 92.00 or $31.30 per hour,

Working 15 hours per week, the plaintiff would earn $469.50 per week.

Working 20 hours, he would earn $626.00 per week - both below the $780.00

threshold. Even working 24 hours, the plaintiff would still suffer the requisite

loss ($751.00).

Accordingly, I am satisfied that the plaintiff has suffered a loss of earning

capacity of 40 percent of more.

I am also required to consider issues of retraining and rehabilitation pursuant

to ss(g).

In light of my findings as to the plaintiff's impairment and his incapacity for

employment, I am satisfied there is no rehabilitation or further retraining that

would be appropriate to be undertaken by him which would alter the situation

that he has a permanent loss of earning capacity of 40 per cent or more. As

rehabilitation and retraining have nothing to offer the plaintiff in terms of his

capacity for employment, the plaintiff has satisfied the requirements of

SI34AB(38)(g).

Accordingly, I grant leave to the plaintiff to bring proceedings for damages for

loss of earning capacity.

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Documents

IN THE COUNTY COURT OF VICTORIA Revised AT MELBOURNE ... · The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined, In addition, both parties