Plaintiff v First Defendant

Plaintiff v First Defendant - [2013] VSC 419 - VSC 2013 case summary — Zoe

[12]

On 28 April 2010 Prof Teddy undertook a "re-do L5-S1 microdiscectomy with decompression/rhizolysis and application of fat graft". The Plaintiff said that he improved little after this second operation.

The Plaintiff told the Panel that at the present time his symptoms comprise pain in the midline of the lower back, associated with severe pain in the left leg as far as the all the toes (sic). He said that he also has pain in the right leg, extending from the buttock to the foot and associated with numbness, and pins and needles on that side. He said that coughing leads to increased pain in the left leg.

...

The Plaintiff told the Panel that he attended a rehabilitation program in early 2011 for one week at Dorset Rehabilitation Hospital, under the direction of Dr C Thomas, but did not improve thereafter. He said that he also had a gym membership in 2012, which has just expired. He said that he attends the pool twice per week, and walks around in the water, and swims two laps of the pool.

He said that his current medication comprises Lyrica 600 mg twice daily, Tramal 200 mg twice daily, Zoloft 100 mg mane, Indocid 25 mg twice daily, Endep 20 mg nocte and Temazepam 5 mg nocte, and medication for diabetes, hypertension and hyperlipidaemia ... . He last had physiotherapy in 2010.

The Plaintiff said that he lives alone; his two children currently live with their mother. He said that he is independent in personal care, but does use a long shoehorn to put his shoes on, and sits in a chair when taking a shower. He said he can sit and stand for about 20 minutes and can walk for 20 minutes.

He said that he does his own cooking, but does very little cleaning. He said that his sleeping is very poor and he wakes six to eight times at night.

The Plaintiff told the Panel that he has a valid licence, but does not own a car, and has not driven since May 2011.

He plays bowls once or twice per month, using a long armed bowling aid. He drinks two to three cans of beer per day and smokes 10-15 cigarettes per day.

...

The Plaintiff described a typical day to the Panel. He said that he gets up some time between 7 am and midday, depending on how much he has slept during the night. He said that he sometimes walks about 10 minutes to the shops but otherwise stays at home, watching television, and occasionally reading. He stated to the Panel: "I can't enjoy anything".

[19]

The Panel formed the view that the nature and extent of the Plaintiff's lumbosacral spine dysfunction is such that he is unable to perform his pre-injury duties as an Area Manager, and that this incapacity for work is still materially contributed to by the alleged injury.

The Panel considered all aspects of the definitions of "suitable employment", "current work capacity" and "no current work capacity" contained in the Accident Compensation Act 1985.

The Panel specifically considered the Plaintiff's relatively young age of 49 years, his place of residence in the western suburbs of Melbourne, relatively close to potential work opportunities, his reasonably good reading and writing skills, his good communication skills, and his good work record from 1988, including his final position as a manager, with responsibility for the supervision of approximately seven salesmen.

The Panel also considered the Plaintiff's psychiatric condition is mild and does not affect the Plaintiff's capacity for work.

The Panel referred to the Vocational Assessment Report prepared by Nabenet (scil. Ayres Management Services), dated 3 September 2009 and provided with the referral and noted that the employment options of account manager, customer service manager, purchasing officer, stock clerk, general clerk/office assistant, enquiry/customer service Clark/information (sic) desk clerk, and retail sales assistant are identified as suitable for the Plaintiff.

The Panel considered the Defendant's submission dated 2 October 2012 to the effect that "the Plaintiff is a relatively young man. His skills lie in sedentary type work. He has strong managerial experience. He is (sic) continues providing assistance in a voluntary capacity as the treasurer of the Deer Park Club and remains active in this role. The consensus of considered medical opinion is that the plaintiff, since surgery continues to have a limited capacity for sedentary duties but no capacity for physical work".

The Panel, based upon its examination of the Plaintiff, and notwithstanding the Plaintiff's limited formal qualifications, agrees with this submission. The Panel noted that he had been promoted within the company for which he had worked, and where he had an excellent work record, and considered that he did have transferable skills which could be used within the potential employment options cited above, and that the sedentary nature of the suitable employment options would allow him to vary his position during the day.

The Panel thus concluded there is work for which the Plaintiff is suited, and could perform on a reliable and consistent basis, currently, and in the foreseeable future.

The Panel therefore concluded that the Plaintiff has a current work capacity.

[41]

He [the plaintiff] still has no current capacity for work and will likely continue indefinitely subject to his back.[7]

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With his ongoing back pain and limitations I believe that he has no capacity for work and with his age and restrictions arising from injuries the prospects of obtaining employment in the open labour market is (sic) slim.[8]

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Since the operation [April 2010] it would be reasonable to indicate that he [the plaintiff] does not have work capacity.[9]

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It is my opinion that Mr Nabbs has no current capacity for work. It is also my opinion that this level of incapacity is likely to continue indefinitely. To have no capacity for work, takes into consideration in particular Mr Nabbs' education and transferrable skills but also his age, work experience, place of residence, medical information and the incapacity arising directly out of the injury.[10]

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Perhaps most importantly, the Agent has made no effort to provide Mr Nabbs a "vocational re-education program". On this basis, it remains my opinion that Mr Nabbs has no current capacity for work and that this level of incapacity is likely to continue indefinitely. I have taken into consideration that Mr Nabbs has a severely limited residual physical capacity and has not been supported in any formal education and has limited transferable skills, except in the area of sales. Mr Nabbs is now 49 years of age, resides in an area where employment opportunities are largely physically based and is lowly skilled work, has difficulty with transport, noting that he is now reliant upon a walking stick for security and if anything, his physical capacity is being allowed to deteriorate, as is his psychological robustness.

On this basis I do not believe that Mr Nabbs has a realistic prospect of obtaining employment in the open labour market.[11]

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I believe that Mr Nabbs has no capacity for pre-injury employment now or into the foreseeable future as a result of the persisting work-related injury to the lumbar spine and the nerve root irritation persisting together with the severity of the neuropathic pain accompanying.

He has no capacity for suitable duties taking into account his age, education, skills and work experience and the incapacities and restrictions as a result of the work-related injury.

I note that he has been assessed at an interdisciplinary centre and has also attended an occupational rehabilitation group. However I believe that he has no capacity to undertake any employment in a reliable, productive or efficient manner and that he could not satisfy the requirements of any employer in this regard.[12]

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Judgment (84 paragraphs)

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Cases Cited (5)