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[2016] VCC 371
County Court of Victoria
2016-04-11
Mr P
Original judgment source is linked above.
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 ("the Act") for injury suffered by the plaintiff in the course of his employment with the first defendant, in particular on 16 May 2013 ("the said date").
2 The plaintiff brings this application pursuant to clause (a) and clause (c) of the definition of "serious injury" to be found in s134AB(37) of the Act. There, "serious injury" is defined relevantly as meaning:
"(a) permanent serious impairment or loss of a body function;
...
(c) permanent severe mental or permanent severe behavioural disturbance or disorder ... ."
3 The body function relied upon in this application is the lumbar spine. The plaintiff also claimed to have suffered a severe psychiatric impairment pursuant to clause (c).
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
7 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, at the date of the hearing, as being more than significant or marked, and as being at least very considerable".
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, 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.
9 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of "severe". Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from "serious" or "severe" betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that "severe" was used in the definition as a stronger word than "serious".
11 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
13 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
14 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
16 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. His father, Terrill Poholke, swore an affidavit on 9 September 2015. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
17 The plaintiff is presently aged forty-one, having been born in June 1974. He continues to receive weekly payments of compensation in relation to a neck injury suffered prior to the said date ("the neck injury").
18 The plaintiff was paid weekly payments for a limited period for his back injury, the subject of this application, and also an impairment benefit pursuant to s98C of the Act.[7]
19 Having completed Year 10, the plaintiff entered the workforce and became a trained welder, learning his skills from his father and on the job. Thereafter, he had a number of welding jobs and also worked as a labourer.
20 The plaintiff commenced working for the first defendant a second time on 19 August 2008. He was employed mainly as a steel fabricator and welder. He worked full time, often with overtime. His duties included maintenance work, structural work, welding, steel fabrication, oxy cutting, spray painting and construction.
21 On 10 May 2011, the plaintiff suffered a serious injury to his neck and right shoulder when lifting a heavy trestle whilst working for the first defendant.
22 As a result thereof, the plaintiff was working on modified duties as at the said date.
23 The plaintiff was granted a serious injury certificate to bring common law proceedings for only pain and suffering in relation to the neck injury. He was able to continue work, albeit on restricted duties.
24 On 23 June 2014, the plaintiff received a jury verdict of $290,000 for pain and suffering for the neck injury ("the jury trial").
25 The plaintiff agreed he suffered a very disabling injury to his neck and right shoulder in May 2011.[8]
26 The plaintiff agreed he told nurse, Jennifer Forbes, in July 2012 that he was no longer able to ride a pushbike without aggravating pain and headaches. Walking brought on headaches. His neck pain was almost crippling and he was having a lot of pain.
27 This neck pain continued right through until the time the plaintiff's employment with the first defendant was terminated.[9]
28 The plaintiff gave the following evidence at the jury trial:
• The pain in the back of his head was like a toothache that became pretty bad. He lay in bed at night crying and wished he was dead because he just could not handle it - "Get me out of here, I've had enough."[10]
• It felt like someone had a screwdriver handle and was pushing it right into the back of his head. (This is still the situation).[11]
• He had a migraine about two or three times a week and had to take medication and go to bed. (This situation continues).[12]
• He kept dropping things. He even dropped his child and that meant his arm was in a horrible state.[13]
• The pain in the back of his head became so bad that he was taking two or more Endone, probably mixing them with Panadol if he could obtain relief and then go to bed because of his neck pain.[14]
• He tried not to walk up hills just because the fact of moving his arm hurt too much.[15]
• He really struggled at work, working more slowly and had difficulties but just got it done.[16]
30 The plaintiff has not had a full night's sleep since the neck injury. This situation continues. He does not sleep much because of his neck and back pain.[19]
31 The plaintiff agreed that when he saw Dr Capes in September 2012, he complained to him of constant neck pain with radiation into the right shoulder and to a lesser extent, the left. His right arm ached. He got headaches which he rated as 5 out of 10, generally increasing to 8 out of 10 on occasions. He needed Endone to control the headaches and help him sleep. He could not work on cars, ride a pushbike, walk for more than half an hour, carry his son or bathe him, and had great difficulty sleeping and trouble driving.
32 The plaintiff during the jury trial agreed that in summary, every aspect of his life away from work was severely impacted because of his neck and arm condition[20]
33 The plaintiff agreed that when examined by Mr Kossmann in September 2012, he told him of constant headaches and disturbed sleep. He could not hold his baby; he bathed the baby once but was not able to do it. He could not read because of headaches. The plaintiff had separated from his partner because of his pain and grumpiness due to the neck injury.[21]
34 The plaintiff agreed that when examined by Mr Brownbill in September 2013, he told him about the interference with activities because of his neck and right shoulder pain. The plaintiff agreed what was ever available to him in terms of enjoyment away from work - namely, cars, bikes, sleeping, relationships, children, hobbies, trailers - were all lost to him because of the neck injury.[22]
35 The plaintiff returned to light duties, which initially required no more than 10 kilograms lifting. However, when the first defendant undertook factory extensions in 2012, the plaintiff was put in charge and in the course of that work, he frequently performed tasks which were considerably heavier than the modified duties for which he had been cleared.
36 In re-examination, the plaintiff explained in detail to the type of work he was doing in the two years after the neck injury, before the said date.
37 The plaintiff had "not real long" off work, and went back to some alternative work for about a week. He then returned to where he originally worked and was doing small componentry and "sorting some issues out". It then "sort of snowballed" and he was asked to do a shed extension at the first defendant's premises.[23]
38 The plaintiff was in charge of that task, organising workers and also doing a lot of structural welding himself. He organised a concrete cutter. The plaintiff used a forklift to lift out pieces of concrete. He spent two weeks welding up in the knuckle room with another worker.
39 Whilst working on the shed extension, the plaintiff was also required to lift components and parts and had to weld them. He was working 10 hours a day. His hours were reduced to 7.6 per day on the advice of OH&S officer. The shed extension job probably took six months.
40 After the main shed extension, the first defendant had to install a new paint line (early 2013). This line hung off overhead rails at its premises. The line was not big enough to service the whole factory so it had to be extended.[24]
41 The plaintiff was in charge of that job. He had a "chum" and other workers to help him but because production came first, these workers would be taken from him, so the plaintiff was left to do the work himself.
42 Whilst the plaintiff was given a co-worker, that co-worker did not know how to do the welding, so the plaintiff did it. On that project, the plaintiff was working 7.6 hours a day, five days a week. Towards the end of the project, he also worked Saturdays.
44 Otherwise, the plaintiff was doing pretty well anything that was required, like maintenance around the factory or factory improvements. He did these tasks during overtime hours.[27]
45 During that two-year period, the plaintiff experienced constant pain in his neck and shoulders. It did not stop him working. However, there was one period when he was working by himself putting up a crane rail. It was pretty heavy work and caused a flare up of his arm, his neck and "everything".[28]
46 The plaintiff's doctor told him that he needed a rest as he had stirred himself up too much. He certified the plaintiff unfit for work for two weeks.
47 On the plaintiff's return to work, the first thing his boss asked him was when he thought he could get the shed extension finished. The plaintiff then went straight back to that task.
48 On the said date, the plaintiff was working on an elevated work platform (a scissor lift), engaged in the extension of the paint line.
49 When checking clearances to remove the paint exhaust fans, the plaintiff was on the device by himself. He brought the lift down as low as he could to ground level and injured himself whilst exiting it. At that time, he felt some sharp pain in his right shoulder and neck and lost his footing on the ladder and fell nearly a metre, heavily to the ground ("the incident"). He slipped in the scissor lift because of the weakness in his right arm.[29]
50 As he hit the concrete floor, the plaintiff immediately felt a severe sharp pain in his lower back and right leg and had trouble straightening up. Initially he thought he could work it off and worked for an hour or so, before reporting the injury.
51 The plaintiff's pain was worse the next day and he required assistance from co-workers. His back only got worse and he advised his supervisor that he was going to Ballarat Base Hospital. By that stage, the plaintiff had a severe limp.
52 At the hospital, the plaintiff was seen by Dr Leung, who told him he had suffered a back spasm from the way he had landed. The plaintiff was given an anti-inflammatory injection and some Panadeine Forte. He was certified unfit for work for the rest of the week. Over the weekend, he was virtually bedridden and in severe pain.
53 On 20 May 2013, the plaintiff attended his general practitioner, Dr Choong, who diagnosed a lumbar strain and referred him for physiotherapy. There was further review on 23 May 2013. The plaintiff was given a certificate of unfitness to work.
54 The plaintiff attended physiotherapist, Karla Hunt, on 22 May 2013. He continued to attend her regularly for neck pain and at other times for lower back and associated leg pain and sometimes for both conditions.
55 On 27 May 2013, the plaintiff was cleared by Dr Choong to work modified duties. He was still then suffering a good deal of lower back pain but persevered for two weeks, hoping it would improve.
56 On 17 June 2013, whilst at work, the plaintiff was getting pains down his right leg as well as constant and quite severe lower back pain. He went back to Dr Choong, who sent him for a CT scan and certified him unfit for work.
57 On 19 June 2013, the plaintiff attended Dr Choong for the results of the CT scan and was advised he had suffered a lumbar disc protrusion. He was given nerve block medication and advised to continue physiotherapy and walking. Further certificates of unfitness for work were provided.
58 On 25 June 2013, the plaintiff saw Dr Choong again, with no improvement, and he was advised to continue with physiotherapy and short walks.
59 On 27 June 2013, the plaintiff attended Mr Wallace, neurosurgeon, who sent him for an MRI scan at St John of God. He had previously treated the plaintiff for the neck injury and advised him to continue with physiotherapy and exercises as prescribed by his doctor.
60 After the incident, the plaintiff was taken off constructing the paint line and put on probably the lightest duties in the factory. He had to stand at a bench, putting plumbing fittings together. Even doing those light duties, he was suffering a lot of low back pain.
61 After his back injury, there was a change in what the plaintiff was able to do. "It was awful." He had a lot of trouble doing the smallest thing. He initially went back on just two hours and everything had changed at work. Working at the bench, he could sit and stand as he wanted but even working two hours a day, he would be off wandering and he had awful left leg and groin pain.[30]
62 The plaintiff attended his doctor and asked him to increase his hours because he was getting pressure from the first defendant. On 2 July 2013, Dr Choong certified the plaintiff fit for modified duties for four hours a day, with no lifting over 5 kilograms and no excessive bending or twisting.
63 Subsequently, return to work arrangements involved the plaintiff increasing the hours worked to full time but continuing with modified duties and a 10 kilogram lifting limit.
64 The plaintiff continued to work, albeit under great difficulty, often taking Endone and other heavy painkillers just to get through the day.
65 The plaintiff was having trouble the whole time. He was still having physiotherapy for his lower back and neck. His physiotherapist advised him the worst thing he could do was to sit at a bench doing the same task. She suggested he do a job that did not involve heavy lifting, being able to walk around a bit and stretch out.
66 The plaintiff spoke to the first defendant's production manager, and advised him of his physiotherapist's instructions. The manager asked the plaintiff what job he thought he could do. The plaintiff suggested going to the boom shed and helping with the plumbing on the boom, as at least he could walk around in that area. The plaintiff was then moved to that job.[31]
67 In that job, booms were fitted to the sprayers to allow the poison to come out. All the hoses and bracketry were fitted up at the same time. As he walked along the boom, the plaintiff dragged along a bench with all the fittings on it. He was required to put little plastic brackets on the boom and bolt them on. He had to put a hose from each poly pipe together and clamp it on. He had to put on all the jets, screwing them on from underneath. He did that job walking along, up and down the machine.[32]
68 This work was light and a bit fiddly. The plaintiff did not have the responsibilities he had before the incident. Every now and again, he had to drive machinery around the factory, but if he had taken any medication he would be told not to drive. He was driving big sprayers, self-propelled sprayers, tractors and forklifts.[33]
69 The plaintiff continued to suffer considerable low back pain in addition to the background pain from his shoulder and neck from the previous injury.
70 Whereas before the low back injury the plaintiff could cope with his duties, albeit with pain, thereafter his pain was often so bad he had to take half-hour toilet breaks to sit down and rest his lower back and ease the shooting pain into his leg. Even though the work was light, the plaintiff now had pain in the lower part of his body in addition to his neck and upper body pain. He had never tried to get out of doing work like this when he just had the neck injury.[34]
71 Prior to the incident, the plaintiff was able to perform modified duties and even a lot of work in excess of the prescribed restrictions. He was even doing overtime until some months before the incident.
72 The plaintiff discussed with one of the office workers who was in charge of spare parts, whether he could work in that area. There was a shop at the first defendant's premises where parts for sprayers could be purchased. The plaintiff was told he was too old and he did not have enough computer skills for that job.[35]
73 Accordingly the plaintiff continued to work in the factory under very considerable difficulty and often in great pain. His employment was terminated on 19 December 2013 and he has not worked since. Prior thereto he was earning about $1,000 a week.
75 The plaintiff confirmed Roger Richards gave him a reference. He also obtained a reference from the first defendant's managing director. Save for the main shed extension, the jobs listed by Mr Rogers were undertaken by the plaintiff after his neck injury.[38]
76 The plaintiff loved working and loved building things. When he drove past the first defendant's premises on the morning of the hearing, he looked at the sheds that he had built and it saddened him because he missed doing that work.[39]
77 If the factory next door had offered the plaintiff really light duties, depending on the duties, the plaintiff would have tried to do that work. He agreed it was the first defendant's decision, not the injury to his lumbar spine that caused him to cease work in December 2013.[40]
78 In re-examination, the plaintiff stated that there was no change in the amount of work available at the first defendant's premises after the May 2013 incident. He was not aware of any reason apart from his back injury why his employment was terminated.[41]
79 The plaintiff could not remember seeing Dr Graham in July 2013. The plaintiff was not sure that he told him that he had a mild ache in his low back which would improve if he moved around.
80 If Mr Brownbill had recorded on examination in September 2013 that the plaintiff had said that his back did not worry him now because the bosses have had to put him on lighter duties, that was probably because at that stage, he was trying to put everything in a positive spin, trying to look forward. Whilst he had medical certificates, the plaintiff was made to do his full normal work.[42]
81 The plaintiff agreed physiotherapy treatment had helped his back a bit, having had some relief from traction. That was in line with the comment to Mr Brownbill that his back then did not worry him. He agreed he was on lighter duties clearly as a result of his neck and arm pain.[43]
82 As at December 2014, the plaintiff had not had any retraining or vocational rehabilitation. He had held a heavy rigid truck licence and a crane licence since 2012.
83 The plaintiff had made enquiries in relation to work he thought he might be able to do, although probably part time work, such as working as a security guard or parking officer. However, these attempts had been unsuccessful and he was then unable to think of any job he could do without significant pain or the need to take substantial quantities of heavy painkillers.
84 In February 2014, the plaintiff was sent to Recovre, where he attended about twelve times. He was helped to do a résumé. He attended a job club but received no retraining or reskilling. He was still looking in the newspaper regularly but he had not seen any job he thought he could do.
85 The plaintiff prided himself on being a highly skilled hard physical worker. He had very few computer or literacy skills. He did not write well and his spelling was poor. He did not think he had the capacity to do any sedentary occupation.
86 In his first affidavit, sworn in December 2014, the plaintiff deposed that pre incident, he was able to drive from Ararat to Ballarat without a break. Now driving any distance, he had to stop and walk around after half an hour because of his low back and groin pain going into his leg muscles and even his feet.
87 The plaintiff then had difficulty sleeping, and at night, often had quite excruciating pain into his leg as well as arm and right shoulder pain. He had to get up during the night and go for a walk or sleep in the recliner chair to ease the pain.
88 The plaintiff was then living with his parents in Ballarat. Before the incident, he used to spend a lot of time in the shed working on his cars. He loved keeping busy and working with his hands.
89 As a result of his back injury, the plaintiff was now able to do even less than he could do previously and seldom did any work on the cars. Before suffering the injuries, he used to greatly enjoy going drag racing with friends but seldom did so now.
90 However, in cross examination, the plaintiff agreed that before the incident, his ability to work on cars was gone. His enjoyment of all activities on a bike, whether it be pushbike, dirt bike, motorbike, was gone.[44]
91 Whilst in his first affidavit, the plaintiff described his problems conducting his trailer business due to his back injury, he had decided to end the trailer business before the incident as he had lost the passion for it.[45]
92 The plaintiff could not go to the movies because of his neck pain. He had not had sexual relations because of his neck pain.[46]
93 As of late 2014, the plaintiff's son was aged three and had autism. He lived with his mother in Ballarat. The plaintiff saw him most weekends and spent quite a lot of time with him. The plaintiff had difficulty playing with him, kicking a football and doing all the things a dad liked to do. Because of his disability, the plaintiff's son sometimes flipped out if they were in a public place and the plaintiff had no choice but to pick him up to calm him down. When he did so, often the plaintiff experienced severe pain.
94 At that stage, the plaintiff was seeing his general practitioner about once a month and had been advised there was little more that he could do. He also saw Mr Wallace from time to time and he had advised against surgery. The plaintiff had physiotherapy monthly.
95 The plaintiff was then using Norspan patches, taking Panadol, Nurofen Plus and Endone on an 'as needs' basis but seldom as possible as it upset his stomach.
96 The plaintiff commenced a twelve-week pain management course at the PainWise Program at St John of God in Ballarat in late 2012 ("Painwise"). He attended three times a week on occupational therapists, physiotherapists, doctors and psychologists and had hydrotherapy. He believed the purpose of the program was to enable him to better cope with his pain.
97 The plaintiff did the Painwise course to assist with all his conditions. He learned how to cope with the pain. It did not go away but he was more readily able to understand it.[47]
98 The PainWise course gave the plaintiff only limited assistance. It recommended WorkCover provide him with a long-handled shoehorn and a handy bar to assist with picking things up. These were declined.
99 The plaintiff has however been provided with a shower chair which helped him wash his feet; a toilet seat raiser, so he can more easily get on and off; feet for his bed, which raised the bed height to make it easier to get in and out of bed, and a memory foam pillow and back support.
100 As of December 2014, whilst the plaintiff continued to suffer pain in his neck and shoulder, the worst pain was in his lower back and into his left leg. Sometimes it was so bad he wanted to have his leg cut off.
101 As a result of not being able to work and the constant pain, the plaintiff had become very depressed. He had lost his self esteem and felt terrible about not working. He had some very dark days and occasionally had suicidal thoughts about which he had spoken to his general practitioner. Dr Choong had sought permission from the insurer for counselling. That had not happened at that stage.
102 Prior to the incident, the plaintiff had some depression in late 2010. He was then feeling down in the dumps because of a relationship breakup. He believed he was prescribed some antidepressants but did not think he took them. However, the depression settled down after a while and was not nearly as severe or indeed as protracted as his present condition. What really got him down was the prospect of not being able to work in the future.
103 In his affidavit sworn on 9 September 2015, the plaintiff confirmed he continues to suffer from the consequences referred in his earlier affidavit.
104 The plaintiff continues to be disabled for work. He had always prided himself on being a very hard worker and had a very strong work ethic, having been the "go to" person whilst working for the first defendant even after the neck injury.
105 Until the incident, the plaintiff was able to work, albeit under some restriction. He enjoyed the work and feeling of worth that came with working and being able to support himself financially. He enjoyed the companionship of his workmates. He now feels like a failure and he is very upset about the example he is setting for his son.
107 The plaintiff does not think he could work as a parking inspector. He is okay going for a walk but he has to stop and start and that would be a problem.[50]
108 The plaintiff does not have real computer skills. His spelling is poor, as was indicated in a document he completed when examined by Mr Barclay Reid and also in a handwritten note to his ex-partner that was tendered.[51]
109 The plaintiff sees his four-year old son every weekend, staying with him at his mother's house. It is basically the plaintiff's time with him. The plaintiff's son is epileptic as well as autistic.[52] He always wants to play on the floor. When the plaintiff does so, he suffers a lot of pain in his lower back and legs.[53]
110 When the plaintiff was in a shop two months ago, his son got away from him and the plaintiff then had to chase him. Doing so made the plaintiff cry because it just hurt so much to run after him. Also, it made the plaintiff think he could not even look after his own child properly.[54]
111 The plaintiff continues to have lower back pain which sometimes feels as if he has been stabbed with a screwdriver. He also has pain into his legs, mainly the left, with associated shooting pain into his feet, varying from moderate to severe.
112 The plaintiff continues to suffer pain in his neck and shoulder but the lower back pain and pain into his left leg is particularly severe and some days so bad he wants to have his leg cut off.
113 The plaintiff feels very upset and depressed as a result of the constant pain and also about his future, particularly not being able to work.
114 On 16 June 2015, the plaintiff started counselling with Dr English, psychologist.
115 After the plaintiff attended Dr Carroll, psychiatrist, for the defendants, in early July 2015, he recommended the plaintiff's general practitioner commence him on anti-depressants. Dr Choong has since commenced the plaintiff on Valdoxan.
116 The plaintiff does not feel much better and he still feels depressed and down in the dumps. He cannot imagine that that will improve much while the pain continues and he cannot work.
117 The plaintiff presently takes Endone every couple of days, only when the pain becomes unbearable, as it gives him reflux and he is concerned about dependency. He takes Jurnista daily; Panadol twice a day but that gives him reflux and stomach pains, as does Nurofen, which he takes daily. He takes Panadol Osteo twice a day and Valdoxan daily. He was prescribed Norspan patches but had extreme vomiting, sweating and dizziness and discontinued them after six weeks.
118 On the morning of the hearing, the plaintiff had only taken two Nurofen Plus when he got up and two when he got to Ballarat because he was coming to Court to give evidence.[55]
119 The plaintiff feels his concentration is impaired. He has little or no libido. He has occasional suicidal thoughts but would never harm himself because of what it would do to his son and his parents who have been great caring for him.
120 The plaintiff continues to have a lot of trouble sleeping as a result of his neck and back pain. He often gets up during the night and goes for a long walk and as a result, is often very tired during the day and needs to sleep.
121 The plaintiff recently bought a Ford Ranger four-wheel drive automatic, which is easier for him to get in and out of as it is higher off the ground. He finds driving long distances very uncomfortable and needs to take a break and have a walk every half hour or so.
122 The plaintiff continues to live with his parents who have been very supportive since he has been injured. He does not know what he would do without their help and support.
123 The plaintiff now seldom has a drink. He used to enjoy having a drink with a large circle of friends whom he spent a lot of time with but he now seldom sees.
124 The plaintiff used to go drag racing with these friends but has not been over for a year. He does not feel like going because of the pain of travel and also once he gets to the track he cannot work on the cars and do what he and the others used to enjoy. It makes him feels useless and reinforces what he has lost.
125 The plaintiff often goes out into the shed with his father. However, he no longer does the heavier tasks he previously undertook. He helps with a few lighter tasks such painting tail shaft loops which he manufactures and sells on the internet.
126 The plaintiff's father, Terrill, swore an affidavit on 9 September 2015.
127 Mr Poholke confirmed the plaintiff was not good at school and has difficulties with reading and writing. However, he was very good with all things mechanical and terrific with working out engineering solutions. He taught the plaintiff to weld and the plaintiff became very competent in that field.
128 The plaintiff had a passion which he shared of restoring cars. They had probably restored about eighteen vehicles over the years, the pride of which was a Holden Monaro.
129 That car was not far from being finished when the plaintiff suffered the injuries. It only required new brake lines and a few other relatively minor jobs, however because of the plaintiff's injuries, it remained unfinished.
130 The plaintiff worked hard and when he arrived home, spent long hours working on the vehicles in the shed. He loved working with his hands and being involved with cars. He was particularly interested in drag racing and attended meetings with his mates.
131 The plaintiff's neck injury restricted what he could do, but he continued to tinker until the incident. From then on, he has been able to do very little. He paints car parts on the bench without the need to bend but he is limited as to how long he can do so. The parts, shaft loops for dragsters and racing cars, are quite small items that sell for about $120. The plaintiff sells them online for him. There is little profit after the deduction of expenses.
132 The plaintiff was very proud of his work for the first defendant and told him of his responsibilities including the new paint line after the neck injury. Even though he suffered pain from the neck, the plaintiff was very keen to work and did the very best job he could and even worked overtime.
133 After the incident, the plaintiff was keen to return to work, although obviously in a lot of pain. He observed the plaintiff pushing himself far too hard and he did too much.
134 The plaintiff lived in the hope of coming good and continued to work as much as he could until his employment was terminated.
135 The plaintiff loved working with his hands and working hard. He was big and strong and loved working for the first defendant. He was hampered in the trailer work before his back injury but from then on, the plaintiff advised he was unable to continue that business and the plaintiff got him to do a lot of work to finish the last trailer.
136 After his employment was terminated and then realising he was unlikely to find suitable employment and being in constant pain, the plaintiff has become very withdrawn and depressed. He used to be outgoing and had a lot of friends and often went to car races with them and loved to drink.
137 Now the plaintiff seldom drinks and is withdrawn from his friends. He has not been to the car races for a very long time. The plaintiff tells him he just feels useless.
138 The plaintiff treats his son, Conor, like an angel. He is a great dad. However, the plaintiff has trouble playing with him and doing father-son things. The plaintiff tells him that he feels that he is letting his son down. He feels like he is a bad example as he is not working. That situation really upsets the plaintiff.
139 It is obvious the plaintiff is depressed, he is moody and becomes very short with his family, unlike previously. When suffering from neck pain only, the plaintiff was in obvious discomfort but he was not depressed and moody and he felt good being able to work. It is just obvious looking at the plaintiff that he is in constant pain from the way he walks and his difficulty making himself comfortable when sitting.
140 The plaintiff has a lot of trouble sleeping. He usually goes to bed well after him. The plaintiff is mostly awake later in the night with the light on or sitting by the heater playing with his mobile. Most nights the plaintiff takes himself off for a walk, often for more than half an hour. The plaintiff told him the police used to pull him up and ask what he was doing. Now they leave him alone.
141 During the day, the plaintiff often goes off and has a nap, goes for a walk down the street or drives just to get out of the house. He bought a new four-wheel drive which he says is much easier on his back.
142 The plaintiff is now a very different person to the one he knew before his injuries, particularly after the plaintiff became disabled for work. It is heartbreaking to see how the plaintiff has declined and the lack of hope he has for the future. The only thing that seems to keep the plaintiff going is his love for his son.
143 The plaintiff was first seen by Mr Wallace, neurosurgeon, on 28 July 2011 in relation to his neck and right shoulder injury.
144 On review on 16 July 2012, the plaintiff had ongoing pain and discomfort. He tended to improve with time after rising. He had had a recent unpleasant experience at work. His physiotherapist had recommended that he try acupuncture and gentle neck chiropractic manipulation. Mr Wallace felt these measures were not inappropriate and were worth trying.
145 On review on 6 November 2012, the plaintiff reported that he had had a bout of very severe arm pain radiating into all fingers after washing his car, and had to seek medical help. That pain had settled back to its usual level.
146 The plaintiff was going back to work in three days' time, now that things had settled. He did not feel he was being very sympathetically treated at the workplace.
147 On the last review pre incident on 22 January 2013, the plaintiff was noted to be coping fairly well.
148 Dr Shea from St John of God thanked Dr Choong on 3 July 2014 for referring the plaintiff. She noted the plaintiff experienced pain from both his neck and lower back but mainly from his neck. He rated that pain as an 8 and he could experience pain radiating down his right leg.
149 The plaintiff underwent a series of assessments on 3 July 2014 and 7 July with the multidisciplinary PainWise team. It recommended he commence a ten-week program from 4 August 2014.
150 The team psychologist reported that the plaintiff suffered persistent pain following his neck and back injuries and that he had symptoms of severe depression and stress.
151 The team occupational therapist noted the plaintiff reported ongoing pins and needles in his right arm, pain in his neck, groin and right leg. The plaintiff stated that this ongoing persistent pain was having a significant impact on his ability to participate in his activities of daily living and his overall quality of life.
152 The plaintiff reported to the team physiotherapist that he had pain in the back of his neck, radiating into the right arm, with associated pins and needles and he dropped things. He also reported pain in the middle and right side of the lumbar spine with radiation into the groin bilaterally, and the posterior right leg, down to the foot.
153 At the end of the PainWise course, the team physiotherapist reported that the plaintiff advised that overall, he was coping much better as he now had an understanding of why his pain increased and also understood the significance of his activity levels on his pain.
154 Dr Choong referred the plaintiff to Dr English, psychologist, on 19 September 2014. He thanked him for seeing the plaintiff, who injured his neck and back at work in May 2011 and had been incapacitated since. He noted that lately, the plaintiff had been depressed and angry due to loss of capacity and chronic pain.
155 In his most detailed report of March 2015, Dr Choong noted the plaintiff's neck and back injuries. He reported the plaintiff continued to suffer pain daily. He had a constant pain in his right arm and right side of the neck, made worse by movement and coughing or sneezing. He also experienced pain in his lower back and both legs. He was unable to sit for too long and had difficulty bending and lifting heavy objects.
156 Dr Choong thought the plaintiff would require pain management and may be benefit from some form of surgery. He was planning to refer the plaintiff for a second neurosurgical opinion.
157 Dr Choong then thought the plaintiff had no current work capacity of any kind in view of his chronic pain and restriction of activity. He did not see that situation changing in the foreseeable future.
158 Dr Choong most recently reported in January 2016. He confirmed the plaintiff's condition remained stable and unchanged. The plaintiff continued to experience pain on a daily basis and the movement in his neck, right arm and lower back was still restricted. Mentally, he was still very depressed and continues to take an antidepressant, 25 milligrams daily, and also pain medication.
159 Dr Choong thought the plaintiff had no capacity for work currently and did not see his condition improving any time soon. He expected that incapacity would continue indefinitely.
160 The plaintiff re-attended Mr Wallace on 27 June 2013, the main reason for the attendance being the injury to his back five weeks earlier. The plaintiff reported that his back pain was then much less than it had been.
161 On examination, there was some impairment of straight leg raising and there was a slight weakness when weight bearing on the toes of the right foot. The right ankle jerk was less brisk than the left and there was some sensory dulling in the right S1 distribution. Mr Wallace expected a right L5-S1 disc protrusion clinically and noted the CT scan apparently confirmed this.
162 Mr Wallace requested an MRI scan, which showed an undoubted L5-S1 disc injury. He noted, however, the plaintiff had had a trial of pelvic traction by his physiotherapist which at the time was very painful, then he felt magically better and he had lost his sciatica symptoms since.
163 Mr Wallace noted the plaintiff was delighted at the way things had turned out and he reassured him he did not appear to be sitting on a time bomb and that his disc protrusion was extremely small and he was going to continue working in his brace and looking after his back.
164 On examination on 2 January 2014, the plaintiff described left thumb numbness and extreme pain in both shoulders and his neck two weeks earlier, which he described as an agonising pain.
165 The plaintiff reported his job had been terminated. There was a discussion at this examination about left arm symptoms. The plaintiff then had stiff neck movement in all directions. Mr Wallace did not examine the plaintiff's lumbar spine on that occasion.
166 Mr Wallace noted the results of the cervical MRI scan carried out that day and thought it was wise to get an updated xray to further document the left foraminal stenosis of C5-6. Mr Wallace thought there was no indication for anything other than conservative treatment and the plaintiff was encouraged to use his cervical collar to avoid any activities which aggravated his pain and to continue with his medication.
167 On examination on 4 March 2014, the numbness in the plaintiff's left arm remained. There were pins and needles in the right hand. The plaintiff had been having sharp pains in his groins and left buttock and there was constant lumbar spine pain.
168 Mr Wallace noted that CGU had had a change of heart and now wanted the plaintiff to return to work rather than having him retrained. The plaintiff found it hard to look over his head, which he thought would be a major hazard in crane driving. The plaintiff considered he would have difficulty driving a delivery truck or working in a hardware store, as he found handling heavy materials difficult.
169 Mr Wallace noted more recent left brachial neuralgia from the plaintiff's cervical disc injury at C5-6.
170 Mr Wallace then thought the plaintiff required ongoing treatment with intermittent use of a cervical collar and he would be best to avoid in future any employment involving excessive bending or twisting of his neck or handling of heavy weights. He noted the plaintiff's injury had also placed him in a situation where, if he had any continuing or worsening symptoms in one or both arms, surgery might need to be considered.
171 The plaintiff was subsequently seen on 25 July and 19 August 2014, 7 January 2015 and most recently on 26 August 2015.
172 On review on 25 July 2014, the plaintiff drew Mr Wallace's attention to the incident and told him that of late, his back pain had worsened if he sat for too long. He had stiffness in his back and legs and had to move about and could not engage in prolonged movement. He was seriously thinking about doing bus driving as a career.
173 On examination, there were some sensory abnormalities and straight leg raising was to 80 degrees, uncomfortable bilaterally.
174 Mr Wallace noted the August 2014 MRI scan showed an annular tear and bulge of L5-S1 centrally.
175 The plaintiff was advised to wear a back brace when doing heavy physical work and always be mindful of his back.
176 On review on 7 January 2015, the plaintiff found he could not go on with the plan to do crane driving because he could not look up. There had also been a flare up of lower back problems with back and left pain in the groin, which at times could be agonising and severe. He had difficulty sleeping with his back complaint.
177 The plaintiff had tried medication with only transient benefit. He had tried a lumbar and neck brace. The Norspan patches made him nauseous. His condition fluctuated and some days, his neck was worse and other days, his back and leg pain was worse.
178 There had been some benefit from the PainWise course. Overall, Mr Wallace thought the situation was stable and did not feel there was any need for a change in the plaintiff's management.
179 On the most recent review on 26 August 2015, the plaintiff's condition had not changed. His neurological findings were not significantly different.
180 Mr Wallace noted the plaintiff's alternative options other than heavy physical work because of his education and background were extremely limited. He considered currently, the plaintiff was incapable of doing heavy physical work and did not seem to have any useful alternative forms of employment. He believed the plaintiff's incapacity for work was directly related to his work injuries, both his neck and back. He regarded the plaintiff's back injury as quite significant and likely to produce enduring problems, severely limiting the plaintiff's ability to gain suitable employment.
181 The plaintiff was referred to Dr English, psychologist, whom he attended on 23 July, 6 and 27 August 2015.
182 The plaintiff indicated the reason for the visit was to find relief from his chronic pain and move on with his life as much as possible. The plaintiff told Dr English about his neck and back injuries. Given that he no longer worked, suffered from ongoing pain and lived with his parents, the plaintiff had lost the sense of who he was, was less tolerant and often very emotional.
183 Based on the assessment information obtained over the course of the three sessions, Dr English considered the plaintiff's symptoms were consistent with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought the plaintiff's chronic pain interfered with his everyday life. He suffered from significant effective distress, perceived he had a low level of control over his life and had a low activity level.
184 Based on his assessment, Dr English thought the plaintiff's current work capacity was that he would continue to face significant challenges in returning to work without treatment for his chronic pain and associated Depressed Mood and Anxiety.
185 The plaintiff attended consultant psychiatrist, Dr Kalra, on 23 November 2015 on referral from Dr Choong.
186 The plaintiff gave a history of the neck injury and subsequently reinjuring himself in the incident with an injury to his lower back and right leg. He described current difficulties in the form of pain in the right leg with numbness and aches including the groin region.
187 On examination, the plaintiff presented as a casually dressed young man sitting with his legs outstretched, reportedly to counteract back pain. He appeared to be in discomfort. He was agitated and dysphoric. He was tearful at times.
188 Dr Kalra noted the plaintiff was despondent about his current predicament with feelings of helplessness and scepticism about the future, in addition to WorkCover process-related stress. His cognitions were grossly intact.
189 Dr Kalra diagnosed an Adjustment Disorder with Depressed Mood, contributed and complicated with a Chronic Pain Syndrome. He noted the plaintiff reported being relatively better on the antidepressant medication in the last three months. He suggested continuing this medication and that the plaintiff would benefit from continuing to see psychologist, Brian English.
190 Taking into account the fact the plaintiff's psychiatric symptomatology secondary to physical injury and its impact on the plaintiff's day-to-day life, Dr Kalra thought the plaintiff's psychiatric prognosis was dependent upon the course and outcome of his physical injuries.
191 Dr Kalra considered the plaintiff's incapacity was predominantly directly a result of physical injuries. From a purely psychiatric perspective, he thought the plaintiff may have some work capacity. Commenting on his work capacity due to physical health issues was beyond the scope of Dr Kalra's expertise.
192 Mr Roy Carey, orthopaedic surgeon, examined the plaintiff on behalf of the defendants in September 2014 for the purposes of an AMA assessment. Accordingly, he did not comment on the plaintiff's work capacity.
193 The plaintiff then continued to complain of constant pain over the lumbosacral region radiating to both loins, constant and varying in severity. There was constant discomfort in both buttocks and groins and intermittent shooting discomfort to the ankle, left worse than the right. The plaintiff had not slept well since his neck injury and he awoke stiff and sore in the morning, both in the neck and low back. Prolonged postures aggravated his pain.
194 Mr Carey thought the plaintiff was an extremely pleasant and genuine witness to his story.
195 On examination, there was palpable paravertebral muscle spasm, not present when standing upright and relaxed. Flexion was such that the lordosis almost reversed but the plaintiff developed a slight to the right. There was no spinal extension at all because of pain. Lateral flexion and rotations were also markedly diminished, more to the right than the left. The only altered sensation was a patch of reduced sensation to pinprick over the outer border of the left foot.
196 Mr Carey thought, as a result of the incident, the plaintiff sustained aggravation of pre-existing but asymptomatic lumbar spondylosis with chronic back pain and bilateral lower limb symptoms in the absence of radiculopathy.
197 Dr David Murphy, consultant physician in rehabilitation medicine, examined the plaintiff on 21 November 2014.
198 Following the neck injury, the plaintiff told Dr Murphy he had worked on light duties with restrictions that he could not carry more than 10 kilograms and lift above shoulder height. It was difficult to comply with the restrictions as most of his work involved use of his hands above shoulder height from time to time.
199 The plaintiff told Dr Murphy of the incident after which he developed pain in his right leg and lower back.
200 Thereafter, there was a progressive return to work on increased hours. The plaintiff felt he was being harassed at work to increase his hours. His physiotherapist told him he should not be standing for such long periods, so he was moved to another part of the factory where he worked full time. The plaintiff's employment was then terminated.
201 The plaintiff told Dr Murphy he was troubled by constant pain in the posterior aspect of the head, radiating to the right arm. He had some headaches which were felt at the back of his head and some pain in his left shoulder and arm. He had constant pins and needles in three fingers and the medial aspect of his right arm. He had electric shock-type feelings in his right arm a few times a day or more frequently.
202 The plaintiff complained of pain in the mid back which radiated down the left leg and the leg pain troubled him most at that time.
203 The plaintiff was then using a Norspan patch and was currently involved with PainWise.
204 On examination, movements of the lumbar spine were generally reduced, although extension was quite good. There was mild tenderness.
205 Dr Murphy did not consider the plaintiff was capable of returning to his usual work as a boilermaker/welder. That work involved repetitive and heavy bending, lifting and twisting, which the plaintiff was not able to do if the effects of the incident injuries were to be considered.
206 Dr Murphy thought the plaintiff was capable of undertaking work which did not involve sitting or standing in one position for more than half an hour; lifting of more than 10 kilograms, or bending, lifting or twisting repetitively. He thought the plaintiff should not lift above shoulder height and be exposed to activities that caused jolting the cervical and lumbar spine. Given those precautions were adhered to, the plaintiff could work for up to 15 hours: 5 hours, three days a week.
207 Dr Murphy thought it would be very difficult for the plaintiff to obtain alternative employment, noting his work experience was in a fairly narrow range, he had very limited transferrable skills and lived in a rural town with limited employment opportunities, with his usual place of employment some distance from his place of residence.
208 Dr Murphy noted the plaintiff was currently undergoing a pain management program from which he reported he was gaining some benefit. He doubted the vocational rehabilitation program would improve the plaintiff's chances of employment.
209 Mr Gardiner, orthopaedic surgeon, examined the plaintiff in January 2015. He noted it was a re-examination of the plaintiff since the examination by Mr Kossmann on 21 September 2012, following which there had been a "new event" in the workplace.
210 Post incident, the plaintiff told Mr Gardiner he had returned to work, resuming the light duties from the neck injury. He had difficulty working at a bench and aggravated his symptoms. He was moved to a different part of the workplace and was attempting to fill his full work requirements with analgesia. The plaintiff continued working at that rate until December 2013 when his employment was terminated.
211 On examination, the plaintiff complained of pain in the right arm and hand; pain in the neck radiating to the interscapular region; headaches at the back of the head; left shoulder pain radiating to the left elbow; right upper limb pain to a greater extent; right hand weakness and clumsiness had been a constant feature; constant low back pain increased by driving a car more than half an hour; bilateral lower limb pains occurring over the whole length of both lower limbs; poor sleep and severe compromise of his activities of daily living.
212 Mr Gardiner noted following a return to work after the neck injury, the plaintiff continued to engage in heavy lifting and a lot of overhead work. He reported persistent symptoms in his neck with headaches. The plaintiff had continued to work in the same light duties until his later back injury.
213 The plaintiff told Mr Gardiner his lifestyle had been markedly limited by the neck injury and significantly compromised by the incident injury. He was unable to engage in any of the activities of daily living such as gardening and recreational sports. He had to go to bed at least once a day, having taken strong analgesia, and he needed at least three Endone tablets to sleep. His sleep pattern was particularly poor.
214 Mr Gardiner thought the plaintiff had experienced an exacerbation of cervical and lumbar spondylosis with chronic back pain and bilateral lower limb symptoms. His upper limb symptoms were similarly related to his cervical spine problem previously diagnosed by Mr Wallace.
215 Mr Gardiner thought the plaintiff's injuries were stable and he did not expect any significant improvement. Unfortunately, he did not think the plaintiff would be fit for any gainful employment for which he was reasonably qualified in the foreseeable future. Furthermore, he did not believe there was any specific surgical or conservative treatment that would influence the plaintiff's progress.
216 Mr Gardiner thought that clearly, the plaintiff was not fit for alternative employment due to his lack of education and training and he had always done physical work and was not able to do anything else.
217 Dr Lester Walton, consultant psychiatrist, first examined the plaintiff in November 2014.
218 The plaintiff told him he was cleared to resume light duties after the neck injury. It seemed that the plaintiff substantially resumed his usual role as a welder in relation to building and maintenance of farm machinery, as well as agricultural building when the incident occurred.
219 The plaintiff told Dr Walton he continued to suffer from pain, particularly affecting his neck and right arm, with associated headache. There was also pain in both groins and legs, as well as the buttocks.
220 The plaintiff advised he had a minor past psychiatric history and that he had had two brief episodes of lowered mood in the context of relationship breakdowns.
221 The plaintiff had begun to suffer from troublesome anxiety and depression in the aftermath of the original injuries and associated chronic pain and with the additional injuries sustained to his low back, there was a significant deterioration in his pre-existing mood disturbance. To date, the plaintiff had not received any particular psychiatric treatment. He reported persisting psychiatric symptoms of anxiety and worry and he estimated he continued to entertain suicidal thoughts on a weekly basis. The plaintiff was also prone to recurring uncontrollable tearfulness.
222 On examination, the plaintiff seemed to be suffering from specific learning difficulties rather than global intellectual disability or any brain injury. There was nothing indicative of psychotic disturbance.
223 Dr Walton noted the plaintiff had suffered from two significant incidents of a physical nature at work. As best as he could judge, the plaintiff was likely to be suffering from a diagnosable Chronic Adjustment Disorder with Mixed Anxiety and Depression leading up to the incident physical injury which was the subject of the current claim. The plaintiff was then left with more widespread pain and his pre-existing psychiatric condition was significantly and permanently aggravated.
224 Dr Walton saw the latest incident as making a proportionately greater contribution to the plaintiff's continuing psychiatric symptoms. Whilst precise apportionment was difficult, his educated estimate would be approximately 60 per cent of end state psychiatric disability was attributable to the second incident.
225 Dr Walton thought it was not the case that the plaintiff was totally incapacitated for all work on psychiatric grounds alone but once the incapacity associated with the widespread pain was also taken into account, he would not be surprised to learn that the conclusion was that the plaintiff was totally and permanently incapacitated.
226 Dr Walton noted Professor Carroll opined that the plaintiff was totally incapacitated for work on psychiatric grounds alone, which was consistent with an apparent deterioration in the plaintiff's mental state since Dr Walton had seen him.
227 Dr Walton thought there did not seem to be any adverse life events in the interim which might explain the plaintiff's deterioration in mental health. Somewhat by default, Dr Walton could only conclude the plaintiff had been simply further ground down by his chronic pain and the implications thereof.
228 On re-examination on 20 January 2016, the plaintiff described ongoing pain much as before. He had seen a psychologist and had been treated with antidepressant medication which had not produced any dramatic improvement in mood. The level of depressed mood seemed to have stabilised and the plaintiff suffered from close to constant anxiety. He was prone to becoming angry easily but in the aftermath of such episodes became tearful. There was difficulty achieving sleep and waking throughout the night which was mainly due to pain.
229 On examination, there was some minor cognitive deficit. The plaintiff described his mood at the time as - "What's the point?"
230 Dr Walton concluded there was no change in terms of diagnostic matters. The plaintiff remained in the grips of a Chronic Adjustment Disorder with Mixed Anxiety and Depression.
231 Dr Walton noted there had been minimal improvement with psychiatric treatment. He thought counselling should continue for at least three months. He was not especially confident the plaintiff would enjoy much improvement in his mental state as his condition was being driven by the ongoing pain which was likely to persist indefinitely. Overall, the prognosis was guarded at best.
232 Dr Walton noted the plaintiff retained positive motivation towards returning to work and not being able to do so was a very significant loss for him. However, he was compromised intellectually in terms of taking up less physically demanding work.
233 From a psychiatric perspective, the plaintiff was suffering from a substantial partial incapacity for work. Once his pain was taken into account, the probability was the plaintiff would be properly classified as totally and permanently incapacitated.
234 Associate Professor Carroll, consultant psychiatrist, examined the plaintiff in August 2015.
235 The plaintiff told him that after the neck injury, he returned to work on light duties but they were light on paper only, rather than reality. There was another injury in 2013. Ultimately, the plaintiff's employment was terminated in December 2013.
236 The plaintiff told Professor Carroll that in the middle of his return to work he was "treated like shit". For example he was followed to the toilet by a supervisor when he was carrying out modified duties.
237 The plaintiff advised he continued to have constant pain in the middle of his back which felt like a screwdriver. He also had pain in his legs, predominantly to the right but sometimes to the left, the intensity varying between 6 to 9 out of 10. Professor Carroll did not record any neck complaint.
238 The plaintiff reported that most of the time he was either "pissed off or sad". He described excessive levels of irritability and frequently lost his temper with people and felt guilty afterwards. He was uncertain about his future. He had strong feelings of feeling like a failure. He admitted to having suicidal thoughts but would never self harm because of his son.
239 The plaintiff told Professor Carroll that he no longer engaged in his previous hobbies.
240 On examination, the plaintiff was preoccupied with his loss of role and diminished self confidence. There were no perceptual abnormalities apart from pain.
241 Professor Carroll was concerned about the plaintiff's mental health and the fact he appeared to be currently suffering from an untreated depressive illness. He strongly suggested his report be urgently provided to the plaintiff's general practitioner.
242 Professor Carroll noted that from the termination of his employment onwards, it was clear the plaintiff's mental health had deteriorated due to a combination of ongoing pain and loss of his role as a breadwinner and worker. Professor Carroll thought the plaintiff now presented with significant depressive symptoms including low mood, irritability, low self worth, insomnia, appetite disturbance, social avoidance and transient suicidal thinking.
243 Professor Carroll diagnosed a Major Depressive Disorder of moderate severity that was contributed to by the combination of pain and the plaintiff's loss of work role. He concluded from a purely psychiatric perspective, the plaintiff would currently be unable to return to the workplace. The plaintiff had marked social avoidance due to his depressive illness and also problems with fatigue due to a combination of depression and his poor sleep which may also be exacerbated by his pain.
244 Professor Carroll thought the plaintiff was also pathologically irritable and this would be manifest in the workplace as him being at risk of interpersonal contact. He thought, from a psychiatric perspective, the plaintiff had no current capacity for work and he was not receiving the appropriate treatment. If he received proper treatment, then, from a psychiatric perspective, Professor Carroll thought the plaintiff may regain capacity within three to six months.
245 Professor Carroll thought the plaintiff urgently needed to start taking an antidepressant, that it was appropriate he continue counselling and he needed to see a pain management specialist to ascertain whether his analgesic regime was in line with best practice or not. He also needed to see a sleep specialist.
246 Dr Choong organised a lumbar CT scan on 17 June 2013. It was reported there was mild facet degenerative disc disease. There was a small central disc protrusion at L5-S1. The forming S1 nerve root, particularly that on the right, was abutted by the disc protrusion and might be symptomatic. There was mild facet degenerative disease.
247 There was an MRI scan of the lumbar spine organised by Mr Wallace in July 2013. It was reported there was desiccation at L2-3, L3-4 and L4-5. There was a disc protrusion central at L5-S1 with an annular tear but no neurological compromise had been identified and the remaining discs appeared satisfactory with normal sagittal alignment. There was some early facet overgrowth noted but no pars defect or spondylolisthesis was seen.
248 By letter dated 6 October 2014, CGU advised the plaintiff that it had accepted liability for his low back pursuant to s98C (right and left leg) relating to an incident of 16 May 2013.
249 Ms Suzanne George, occupational therapist with Evidex, provided a vocational assessment on 11 December 2014, having interviewed the plaintiff on 8 November 2014.
250 Ms George was asked to advise on a lower back injury on the said date. She did not consider the plaintiff's neck injury for the purposes of this report.
251 Ms George concluded that no unrestricted recognised occupation in the open labour market for which the plaintiff was likely to qualify was suitable following his back injury and that this situation would continue for the foreseeable future. She thought the plaintiff's maximal vocational potential would be in protected employment where there was empathy for his condition and duties provided within his functional capacity.
252 Ms George noted that prior to his back injury, the plaintiff was working as a maintenance welder fabricator. Due to his incapacities, occupations which would otherwise be suitable by way of work experience and vocational licence, were now unsuitable, specifically, concrete products; machine operator; automotive dismantler; truck driver; forklift driver; hide and skin processing machine operator; spray painter labourer; panel beater's assistant; crane hoist or lift operator and dogger.
253 Ms George also considered opportunities for alternative employment and concluded no alternative occupation in the ANZSCO was identified as suitable for the plaintiff after taking into account his education, transferrable skills and functional capacity.
254 Noting the plaintiff's employment was terminated in December 2013, Ms George thought the provision of occupational rehabilitation and or retraining in the future was unlikely to lead to a suitable recognised occupation in the open labour market for him given his inadequate computer skills; the need for extensive retraining for a new occupation; his capacity to participate in practical sessions involving strenuous physical demands and ability to concentrate and remember significant amounts of information due to the effects of his medication and pain. She thought he may have difficulty attending a place of training due to his experience of lower back pain with prolonged driving and he did not have the study skills.
255 Ms George re interviewed the plaintiff on 29 July 2015. She had been instructed to consider his individual circumstances with regard to his education, vocational training, work experience, skills, age and place of residence, and residual functional capacity in regard to his lower back injury. Thus, she did not take into account the plaintiff's psychological condition. She noted the neck injury had not been considered for the purposes of this report.
256 Leaving aside the psychological consequences of the plaintiff's lower back injury, Ms George concluded that no unrestricted recognised occupation in the open labour market for which the plaintiff was likely to qualify was suitable following his back injury and that situation would continue for the foreseeable future. She thought the plaintiff's maximal vocational potential would be in protected employment where there was empathy for his condition and duties provided within his functional capacity.
257 Ms George noted the average full-time gross weekly earnings for a forty-one year old maintenance welder fabricator was $1,351.00.
258 In a reference dated 20 August 2013, Roger Richards, the defendant's general manager, advised that the plaintiff had been a valuable employee for six years. In that time, he had been in charge of infrastructure projects at the Ballarat plant. Some of his achievements included: main shed extension; complete crop cruiser shed construction; mezzanine floors; work aids; air and gas installation. Mr Richards noted "the list goes on".
259 Mr Richards noted the plaintiff managed himself with little requirement for direction by management. He had a great work ethic and a "can do" attitude. He wished the plaintiff well in his future endeavours.
260 A document completed by the plaintiff when examined by Mr Barclay Reid in 2012 and a handwritten note to the plaintiff's ex-girlfriend showed the plaintiff's poor spelling and writing skills.
261 By letter dated 25 July 2013, the plaintiff was advised by CGU that his weekly payments' claim in relation to the incident injury was accepted from 16 May to 17 July 2013 and rejected after that date.
262 CGU advised it was decided based on Dr Graham's examination, the effects of the aggravation had ceased and the plaintiff was considered fit for work he was undertaking prior to his claimed injuries and that any incapacity related to the pre-existing degenerative change.
263 The plaintiff received $12,573.00 pursuant to s98C in relation to his back injury.
264 The plaintiff continues in receipt of weekly payments relating to his neck injury, having received 104 weeks' payments as at 18 February 2016. He received a s98 payment of $11,836.00. He was awarded pain and suffering damages of $278,164.00 in the jury trial in June 2014.
265 In a Certificate of Capacity completed by Dr Choong on 21 February 2013, he certified for the following month the plaintiff was fit for modified duties with no lifting in excess of 10 kilograms; no looking up above; horizontal level; rest breaks as needed. The diagnosis was cervical disc protrusion C5-6-7.
266 In his most recent certificate of November 2014 Dr Choong certified the plaintiff was unfit for work due to :
267 Mr Wallace wrote to Dr Kondaji, having reviewed the plaintiff on 9 May 2012.
268 Mr Wallace advised that the plaintiff was then still sore, with pain in his right shoulder and between his shoulders, often associated with headache. He experienced bilateral headaches every now and again and there was no associated vomiting. His neck started to ache, then it developed into a constant pain. The headaches came on in the morning. His sight could be intermittently blurry and bright light was bad when he had a headache. The headaches lasted hours or most of the day. The plaintiff may go days or weeks without a headache.
269 Mr Wallace had not changed the plaintiff's work restrictions as he thought he still had significant symptoms.
270 Ms Forbes first saw the plaintiff on 6 May 2012 for remedial massage. She noted he then had restriction of cervical movement and suffered from debilitating headaches since the day he lifted a heavy crate.
271 In terms of lifestyle changes, Ms Forbes noted the plaintiff could no longer ride a bike without aggravating his neck. Arm pain and simple walking for too long brought on neck pain. The plaintiff had been distressed at the pain he experienced holding his one year old. Driving for too long aggravated the plaintiff's pain.
272 As of February 2013, Ms Forbes thought there was considerable concern the type of duties the plaintiff was performing and the pressure at work would aggravate his present condition. She thought this type of work was always going to be a problem, given the injuries he had sustained in the cervical spine upper body area that was most vital to his type of work.
273 Ms Forbes thought it may be advisable the plaintiff have some counselling regarding pain management and stress from lifestyle changes. She had serious concerns that the plaintiff would be able struggle with this type work for much longer and felt he needed support rather than restricting the minimal and reasonable therapy he was having.
274 An x-ray of 28 July 2011 of the cervical spine organised by Mr Wallace showed mild degenerative change at C6-7 with endplate osteophytes and mild loss of disc space height.
275 An MRI scan of cervical spine was organised by Mr Wallace in July 2011. It was reported there was multilevel cervical spondylosis and neural foraminal stenosis. In reference to the right-sided symptoms at C6-7, there was superimposed on a broadbased disc bulge and uncovertebral osteophyte, a moderate right proximal foraminal disc protrusion which caused severe compromise of the proximal aspect of the exiting right C7 nerve root.
276 The plaintiff was examined in September 2012 by Dr Capes, occupational health physician.
277 The plaintiff then told Dr Capes that his symptoms were constant neck pain with radiation into the right shoulder and to a lesser extent the left, radiating distally and vertically. He had crepitus on neck movements in rotation; his right arm ached; he experienced intermittent pins and needles in one to three fingers, and his right arm felt weak.
278 The plaintiff had headaches, which he rated 5 out of 10, generally getting up to 8 out of 10 on occasions and he needed Endone and bed to control the headaches. He could not work on cars, ride a pushbike, walk for more than half an hour, carry or bathe his son and had great difficulty sleeping and trouble driving.
279 Dr Capes thought the plaintiff had a work capacity but restrictions should be: no lifting greater than 10 kilograms; no repetitive neck movements; no overhead work; no repetitive bending, and no prolonged driving. He would be surprised if the plaintiff escaped surgery. Thus he thought the prognosis must be guarded.
280 The plaintiff was examined by Mr Kossmann, orthopaedic surgeon, in September 2012.
281 The plaintiff told him the onset of his neck and shoulder pain on the right side as well as his headaches had an impact on his social, domestic recreational and sporting activities. He had separated from his partner because of his pain issues and his grumpiness. The plaintiff complained he could not do sporting activities as before. In former times, he had enjoyed riding a pushbike or walking.
282 Mr Kossmann thought the plaintiff would never become pain free in his neck and right shoulder if he continued working in this heavy physically demanding employment. In his view, the plaintiff should cease lifting heavy items and also working above shoulder or above head height.
283 Mr Kossmann considered the plaintiff should look at changing his job. He should seek employment where he was not forced to work physically very hard or have to lift heavy items or have to work above shoulder or head height. He supported the plaintiff's intention that he wanted to look for employment in a hardware selling business.
284 Mr Barclay Reid, general surgeon, examined the plaintiff in October 2012. He thought the prognosis was uncertain as the disc prolapse nerve root compression at C6-7 and the plaintiff's symptoms had been unchanged for about eight months radiologically and for one year and five months symptomatically. He thought it likely the plaintiff would continue to have symptoms for another year or two and perhaps longer.
285 Mr Reid considered the impact on the plaintiff's occupation was that it would be dangerous for him to continue in his pre-injury work. He noted the plaintiff was currently performing what was virtually his pre-injury work contrary to his doctor's orders and because he felt he might get put off if he did not comply.
286 In the future, Mr Reid thought it would be unadvisable for the plaintiff to work involving heavy lifting and overhead work. The impact on activities of daily living was that the plaintiff was able to undertake the essential activities but unable to perform domestic work. His neck condition had also adversely affected and significantly impacted on his family life, as he had separated from his girlfriend and child.
287 Dr Geoffrey Graham, occupational physician, examined the plaintiff in July 2013 in relation to his statutory benefit entitlements.
288 The plaintiff stated that at rest, he was aware of a mild ache in his low back which would improve if he walked about. He was experiencing no leg pain.
289 The plaintiff stated his activities were limited due to his neck problem. He described no new limitations relating specifically to his low back.
290 When the plaintiff was examined, on palpation, there was some minor tenderness claimed in the lumbar spine but no stiffness.
291 The plaintiff moved without any obvious gross discomfort or difficulty. Flexion was to hands on knees and he straightened with a normal rhythm. Extension and lateral flexion to both sides were all reasonable in range. Neurologically the plaintiff was normal.
292 Dr Graham diagnosed degenerative disc disease of the lumbar spine which was constitutional in nature but he thought any incapacity related to pre-existing degenerative change. He considered the effects of any aggravation had ceased.
293 Dr Graham thought the plaintiff had the capacity for employment he was undertaking pre May 2013.
294 Mr David Brownbill, consultant neurosurgeon, first examined the plaintiff in September 2013.
295 The plaintiff described the circumstances of the neck injury and a return to a full-time normal job with ongoing neck pain extending down the right arm, with pins and needles and numbness fluctuating in the right hand. The plaintiff continued working full time performing his full normal duties. Mr Brownbill noted the plaintiff told him:
"I have medical certificates but they made me at work do my full normal work."
296 The plaintiff went onto light duties after the incident where he fell because of right arm weakness.
"The back isn't worrying me now but the bosses have put me onto lighter duties."
298 The plaintiff had been applying for other jobs to stop the heavy welding work.
299 The plaintiff advised he had not been able to continue with his hobbies because of neck and arm pain and headaches that occurred when the neck pain increased.
300 The plaintiff described neck pain to the right side and back of the lower neck. There was pain extending down the outside of the shoulder, the front of the upper arm and inner aspect of the forearm and hand. There was intermittently numbness and pins and needles over the three fingers of the right hand and the plaintiff dropped things occasionally. There were intermittent headaches that could be very severe.
301 Examination showed restriction of cervical spine movements and there was some weakness of the right elbow and finger extension.
302 Mr Brownbill thought in the future, the plaintiff should avoid activities involving heavy lifting, forced cervical mobility or holding his neck in a fixed position. He did not think it appropriate the plaintiff work as a welder. He considered the plaintiff sustained cervical intervertebral disc derangement with prolapse related to his work.
303 In a supplementary report dated 5 August 2014, Mr Brownbill noted that on initial examination, he did not take any detailed notes about the plaintiff's lower back and did not perform any specific examination thereof.
304 On re-examination in April 2015, the plaintiff told Mr Brownbill there had been ongoing neck pain, headaches, right arm pain with pins and needles and some left arm pain. He also told him of the incident and his back injury.
305 The plaintiff told Mr Brownbill that subsequent to the incident, at work he had problems standing at a bench. He was then moved to a different area where he was able to move around. He was still taking Endone but his pain continued with fluctuations. The plaintiff's employment was terminated in December 2013.
306 Mr Brownbill noted that the plaintiff's ongoing neck and right arm pain was unchanged. There was constant low back pain with fluctuations being worse with prolonged sitting or standing and with physical activity. There was right leg pain extending from the buttock down the back of the leg to the ankle which comes and goes, and there was occasionally groin pain. Left leg pain was as on the right and occurred intermittently.
307 Examination showed restriction of thoracolumbar spinal movements. There was no objective neurological abnormality of the lower limbs and no signs of radiculopathy.
308 Mr Brownbill thought that in the incident, the plaintiff sustained aggravation of the pre-existing asymptomatic lumbar spine degenerative changes with associated disc derangement giving rise to pain and by likely nerve root irritation radiating right leg pain.
309 Mr Brownbill thought that in the future, the plaintiff should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing and sitting. From a physical point of view, he considered the plaintiff would be capable of a graded return to work avoiding these physical activities. The number of hours he could work would be dictated by his response.
310 Mr Brownbill considered the plaintiff had sustained aggravation of lumbar spine degenerative changes with associated L5-S1 intervertebral disc derangement. He anticipated pain would continue in a fluctuating manner and that the long-term prognosis could not be stated with certainty.
311 Dr Ho, occupational physician, examined the plaintiff in November 2015.
312 The plaintiff told him that before he was sacked, he was working 7.6 hours a day on light duties but was taking strong medication. He had not been referred for retraining. He had started a computer course. Recovre was still trying to work out his résumé.
313 The plaintiff advised nothing had changed with his neck, if anything, it was worse. He now had pain into the left arm to elbow and he has been dropping things from his right arm currently.
314 In terms of current condition, the plaintiff's whole right arm ached. His right groin also ached, as did his right leg. He reportedly had pins and needles in his left leg in the groin and sometimes in the left foot. His lower back ached. His neck also ached. He described a sharp pain currently in his neck. The whole of his right arm from the shoulder to the hand had been aching.
315 On examination, the plaintiff was generally tender in the lumbar area and there was a restriction of thoraco spine movements.
316 Dr Ho thought the plaintiff had sustained intervertebral disc injury in his cervical and lumbar spine that had persisted. The neck injury was caused in the first incident and the back injury on the said date had further aggravated his neck and caused an intervertebral disc injury to the lower back with symptoms into his right leg.
317 From the description of his physical work involving heavy lifting and manual handling, Dr Ho did not believe the plaintiff was able to return to pre-injury duties and hours. He thought the plaintiff had a current work capacity for suitably selected alternative duties; avoiding heavy lifting in excess of 5 kilograms; repetitive strenuous bending and twisting at his lower back; avoiding heavy pulling and pushing, and he had to be able to regularly change posture.
318 If those suitable duties were available, Dr Ho recommended a graduated return to work. He thought the suggested jobs of parking inspector, sales assistant, parts interpreter, residential care worker or disability support worker were reasonable and appropriate for the plaintiff.
319 Dr Ho considered there may be psychosocial factors and relationship problems at work affecting the plaintiff's recovery, including his return to work. He thought treatment was appropriate with self-managed exercise, psychological counselling and medication. In his view, the plaintiff should be able to wean off his strong prescription narcotic. He should self manage with exercise. He would require medication but with reducing reliance on strong analgesia.
320 Associate Professor Doherty, psychiatrist, examined the plaintiff on 10 December 2015.
321 Dr Doherty noted in the referral letter there were excerpts from the jury trial transcript relating to the plaintiff's neck complaints and their effect on his activities.
322 It appeared from this report that Dr Doherty had seen the plaintiff in August 2015. On that occasion, the plaintiff stated he had been going downhill psychologically since his employment was terminated.
323 Dr Doherty noted that following his diagnosis of a Major Depressive Disorder on that first examination, the plaintiff was commenced on an antidepressant. At that stage, he had already been seeing a psychologist, Dr English.
324 At the time of the re-examination, the plaintiff had been referred to a pain specialist and a sleep specialist but that had been delayed due to funding being approved however there was a forthcoming appointment.
325 The plaintiff told Dr Doherty of ongoing constant pain in the back of his neck radiating to his right shoulder and arm like a screwdriver stuck in the back of his neck. It was 5 to 6 out of 10 and it could get up to 9 or 10 out of 10 several times a week, for anything between half an hour and two hours.
326 The plaintiff also described a pain his right leg and some days his left attributed to the incident. He had a sharp pain down his back like someone was pushing into it. He was never pain free and his pain was generally 6 out of 10 and could increase to 10.
327 In general, the plaintiff reported he took four or five Endone tablets a week for his neck pain and a similar number for his leg.
328 The plaintiff described his mood as sad and angry and always in "f-ing pain". He had just given up. He felt weak and useless.
329 Dr Doherty thought the plaintiff suffered with an Adjustment Disorder and Depressed Mood as a result of the neck injury.
330 The incident in and of itself did not clearly lead to any extra psychiatric condition although it seemed likely that the Adjustment Disorder was still active at that time.
331 Dr Doherty noted the plaintiff's subsequent dismissal from work; however, allied with his chronic pain, had led to the onset of a Major Depressive Disorder which was now responding somewhat to treatment. The plaintiff's dismissal from work and consequent loss of structured activities had also engendered the onset of a specific phobia affecting his ability to use public transport.
332 Dr Doherty thought the prognosis, both in the short and long term, from a psychiatric perspective, was likely to be strongly influenced by the plaintiff's ongoing pain problems. As best he could ascertain, the plaintiff's chronic pain did not appear to have a psychiatric component, although it was likely the plaintiff's low mood magnified his experience of pain to some degree.
333 Dr Doherty thought, from a psychiatric perspective, there was no evidence of any permanent impairment. The plaintiff's conditions were treatable and he had only recently embarked on specific psychological and pharmacological treatment.
334 Dr Doherty believed any permanent impairment arising from the plaintiff's injuries was non psychiatric in nature. In particular, the plaintiff's pain, which he understood to be secondary to recognised injuries of the cervical and lumbosacral spine, would appear to be relevant.
335 Dr Doherty did not consider the Adjustment Disorder caused permanent incapacity and thought the plaintiff was fit for pre-injury employment from a psychiatric perspective.
336 In terms of an apportionment, Dr Doherty thought 30 per cent of the plaintiff's neck pain continued to contribute to his low mood and 70 per cent of his back pain. In addition, the dismissal from work consequent upon the incident injury appeared to be the primary cause of the plaintiff's depressive episode and specific phobia.
337 Dr Doherty could not find any evidence of unconscious exaggeration of symptoms. He did not believe the plaintiff's Pain Disorder was psychiatric in nature.
338 Ms George also completed a vocational assessment in November 2013. She noted the plaintiff sustained a lower back injury on the said date. She had assumed that injury had not stabilised and would therefore not consider that injury for the purposes of her report.
339 Leaving aside the psychological consequences of the plaintiff's neck injury, Ms George concluded no one restricted recognised occupation in the open labour market for which the plaintiff was likely to qualify was suitable following his neck injury and that situation would continue for the foreseeable future. She thought his maximal vocational potential would be in protected employment where there was empathy for his condition and duties provided within his functional capacity.
340 The remainder of her report echoed the views Ms George expressed in relation to the consequences of the plaintiff's neck injury.
341 There is no dispute the plaintiff suffered an injury to his lumbar spine in the incident. His claim pursuant to s98C was accepted and the plaintiff was paid weekly payments for a six-week period.[57]
342 The plaintiff continues in receipt of weekly payments in relation to the neck injury.
343 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[58]
"... the weight to be attached to the plaintiff's account of the pain experience will, of course, depend upon an assessment of the plaintiff's credibility."
344 The plaintiff was a straightforward and reliable witness and there were no issues with his credit.[59] He was not directly challenged as to his present complaints of lumbar pain and restriction.[60] He freely agreed his neck injury was very significant and that a wide range of activities had been lost to him prior to the incident as a result thereof. Cross-examination focussed largely on the plaintiff's work capacity.
345 There is no real dispute as to the diagnosis of the plaintiff's lumbar injury, with the consensus of medical opinion that he suffered a prolapse at L5S1 in the incident. Dr Graham is alone in his view that any incident-related aggravation has ceased.
346 Further, there is no suggestion of any functional factors playing a part in the plaintiff's current presentation and I accept that his lumbar condition has a substantial organic basis.[61]
347 As Maxwell P said in Haden Engineering v McKinnon,[62] the assessment of the pain experience depends inter alia on an examination of what the plaintiff says both to doctors and to the Court.
348 The plaintiff presently describes very significant back pain of a sharp stabbing type radiating into his left leg. Whilst he was not significantly challenged in this regard, his present complaints are at a much higher level than he described when examined by Mr Wallace in June 2013 and he did not mention any back complaint when seen by him in March 2014. Complaints of more severe back pain were not made to Mr Wallace until last year.
349 The plaintiff described a mild ache when examined by Dr Graham in June 2013 and no new limitations relating to his back injury.
350 Mr Brownbill noted, in September 2013, ongoing neck pain and limitations in relation thereto. He reported the plaintiff told him that his back was not worrying him now. There was no examination of the plaintiff's back on that occasion.
351 Further, in July 2014, Dr Shea, when referring the plaintiff to PainWise, noted mainly his pain was from his neck, although he had persistent pain in both his neck and back.
352 When examined by Dr Walton in late 2014, whilst complaining of back and lower limb pain, the plaintiff told him he continued to suffer from pain particularly affecting his neck and right arm.
353 Whilst I accept the plaintiff is a genuine witness, he appears to have complained of increasing and more significant back pain in recent times, yet there has been no corresponding increase in the frequency or nature of treatment undergone.
354 Further at times, a worsening of already significant neck pain has been noted by medical examiners such as Mr Wallace in early mid 2014 who recorded the onset of new left upper limb symptoms and the possibility of surgery and Dr Ho in November 2015 who noted the plaintiff reported increasing neck pain on that examination.
355 The plaintiff has undergone conservative treatment only for his lower back. He confirmed he initially received significant benefit from traction organised by his physiotherapist.[63]
356 The plaintiff continues under the care of his general practitioner, Dr Choong, who referred him to Mr Wallace in relation to his back condition, having earlier seen him for his neck complaint.
357 Mr Wallace has suggested only conservative treatment for the plaintiff's back.
358 Before the incident, because of the neck injury, the plaintiff was taking a "cocktail" of significant medication, including Endone. There has not been a significant change to this medication regime following the back injury.
359 Whilst the plaintiff has experienced significant pain and discomfort in his back following the incident, this has been superimposed on a very significant, serious, ongoing problem of neck and arm pain and associated headaches with its resultant restrictions and limitations on his lifestyle.
360 The plaintiff's ability to move freely and engage in a wide range of activities was severely compromised prior to the incident and this situation has not changed greatly thereafter.
361 I am not satisfied the level of pain and the need for treatment relating solely to the plaintiff's back condition meets the high statutory threshold of serious.
362 As counsel for the defendants conceded, "it was not said for a moment the plaintiff had put any spin on this case", he had previously suffered a very serious neck injury. In those circumstances, it was not possible to disentangle the consequences of that injury neck injury from the present consequences of his back injury.[64]
363 In Peak Engineering & Anor v McKenzie,[65] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
"The Court must decide whether the consequences of the original injury are 'more than significant or marked, and ... at least very considerable'. For that purpose, it is necessary - so far as the evidence permits - to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury."[66]
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of the unrelated injury; and
(b) when the consequences properly referable to the relevant injury were identified, identify them as "serious".[67]
366 I have to be satisfied the consequences of the incident injury to the plaintiff's back in relation to pain and suffering and loss of earning capacity are "serious."
367 Whilst back and leg pain has followed the incident, I am not satisfied it has resulted in consequences which would meet the definition of "serious" under the statutory test.
368 The plaintiff candidly agreed in cross-examination that he was precluded from the following activities because of the neck injury, and this was the situation prior to the back injury:
369 The plaintiff agreed that his neck condition remained in its "full flurry" right through to the present time. He had extreme neck pain during the jury trial and the current hearing that felt like someone was pushing a screwdriver into his neck.[68]
370 Whilst the plaintiff described problems sleeping due to his back, he had significant problems sleeping prior to the incident due to his neck injury. This was also the case in terms of the plaintiff's ability to look after and play with his young son.
371 Pretty much all the plaintiff's activities had been significantly affected by his serious neck injury before the incident. As counsel for the defendants submitted, the plaintiff had already been compensated in that regard by the jury.[69]
372 Counsel for the plaintiff submitted that the main focus of the plaintiff's application was said to be the serious consequences in relation to his work capacity.[70] It was submitted that the plaintiff presently is incapacitated for all work as a result of his back injury and has therefore suffered the requisite loss of earning capacity of 40 per cent.
373 It was submitted that prior to the incident, whilst certified for light duties because of the neck injury, the plaintiff had been engaged in a range of what in fact were heavy tasks on the paint line, a shed extension and the construction of a mezzanine floor at the first defendant's premises. After the neck injury and prior to the incident, he was able to continue working in relatively heavy duties with responsibility.
374 Counsel for the plaintiff conceded however that it was probably right, the plaintiff had never been certified fit for full-time duties prior to the incident.[71] Although he may have been certified as "fit for modified duties", such certificates were only advisory and the relevant consideration was what work the plaintiff actually performed and the high level of responsibility attached thereto.[72]
375 Following the incident, the plaintiff had been unable to return to this type of work. He had difficulty undertaking light bench work and also the boom work he subsequently performed for the two months before his employment was terminated as there was no work any longer available for him.
376 It was submitted the first defendant was in the best position to know the plaintiff's abilities and doing so, it terminated his employment. That occurred only after the plaintiff had the back injury when he had increasing trouble fulfilling his duties at work.
377 In response to my comment that the plaintiff was obviously motivated to keep working and was in fact working full time in the boom section when his employment was terminated, and had also expressed an interest in working in the spare parts shop, it was submitted the plaintiff was clearly desperate to work and he had been put in the boom section because of his discussion with the first defendant about his back problems doing bench work.[73] Further, there was no change in the level of the first defendant's work after the plaintiff's injury.
378 In these circumstances, counsel for the plaintiff submitted that motivation does not equal capacity.[74] It was submitted that it was the back injury which pushed the plaintiff over the edge. Had it not been for his back injury, it could be inferred he would have continued at the same responsible level of work that he had been carrying out in the two-year period prior to the incident.[75]
379 It was submitted that the plaintiff's residual capacity after the neck injury was of great value to him. He was vulnerable by virtue of that injury, and his work capacity was further reduced through not being able to work at all by the back injury.[76]
380 It was submitted the plaintiff presently has no work capacity, a situation which was permanent, therefore it was not necessary to compare "without injury" earnings with a figure the plaintiff presently had the capacity to earn.[77]
382 In response, counsel for the defendants submitted the evidentiary onus in Giankos only applied when the Court was satisfied there was no work capacity. It was submitted the plaintiff could go and do exactly the work he was doing when his employment was terminated. Further, the plaintiff has a capacity for light work, as Dr Ho, Mr Murphy and Mr Brownbill opined.
383 Whilst a number of medical practitioners considered the plaintiff did not have a capacity for work, counsel for the defendants submitted they failed to attribute his back condition as the sole cause thereof, concluding both his neck injury and back injury resulted in an incapacity for work. The following opinions were relied on in this regard:
• In his most recent certificate in late 2014, Dr Choong set out the plaintiff was totally unfit for work as a result of his neck, back and secondary depression.
• Mr Gardiner, in January 2015, thought the plaintiff was unfit for any gainful employment as a result of the injuries
• Mr Wallace, in September 2015, considered the plaintiff unfit for heavy work and that he did not seem to have any useful alternative forms of employment due to both his neck and back injuries.
• In November 2014, on the basis of both injuries, Mr Murphy thought the plaintiff had a capacity for light work and could work up to 15 hours per week- 5 hours 3 days a week.
• Mr Brownbill, in 2015, thought the plaintiff was fit for a graduated return to modified as a result of both injuries and that the number of hours on his return would be dictated by his response.
• Dr Ho thought the plaintiff had a capacity for light work as a result of both injuries, noting a worsening of the plaintiff's neck condition in November 2015.
384 Further, no doctor identified the back injury itself as the reason for the plaintiff losing his job.[80]
385 I am not satisfied on this medical opinion that the consequences of the plaintiff's back injury alone are serious from an employment viewpoint.
386 Further, the plaintiff was working full-time hours, albeit on light duties, at the time his employment was terminated. His duties involved working on boom apparatus, attaching various necessary parts, walking around the factory floor, not doing just bench work. The plaintiff had been settled in that position for two months prior to the incident.[81]
387 The plaintiff also undertook some driving work when he had not taken Endone, as it affected his capacity to drive.
388 The plaintiff agreed, had this job continued and his employment not been terminated, he would have continued in that role. When it was suggested if a similar job in another factory was offered to him, he would certainly have tried to do it.[82]
389 Further, the plaintiff had sought work in the spare parts shop, which he thought he could have coped with, similar to the hardware shop work he had earlier contemplated.
390 The plaintiff left the first defendant's employ because there was no work available. He agreed he did not cease work because of his lumbar spine pain.[83]
391 Whilst pre incident the plaintiff had demonstrated a capacity for quite heavy work, medical opinion at that time and thereafter was to the effect that his work capacity and work future were significantly compromised by his neck injury.
392 In this regard, the following treating medical opinion was relied upon:
• In February 2013, Nurse and masseuse, Ms Forbes had serious concerns the plaintiff would be able to struggle with the work he was doing for much longer.
• In March 2014, at the examination where the plaintiff did not mention any back problem, Mr Wallace thought he would be best to avoid any heavy work because of his neck problem in relation to which surgery might need to be considered if there was a worsening of his symptoms.
• Dr Capes, in September 2012, thought the prognosis must be guarded and he would be surprised if the plaintiff escaped neck surgery.
• Mr Kossman thought the plaintiff should look at changing jobs in September 2012 because of his neck. He also noted the plaintiff then intended to look for work in a hardware selling business.
• Mr Reid, in October 2012, thought it would be dangerous for the plaintiff to continue in the duties he was then performing.
394 The plaintiff told Mr Gardiner that the plaintiff reported persistent symptoms in his neck with headaches when working in the two years before the incident
395 Counsel for the defendants also relied upon Ms George's 28 November 2013 vocational assessment in which she concluded, ignoring the back injury, in relation to the neck, on a permanent basis there was no unrestricted recognised occupation in the open labour market for the plaintiff and his maximum potential would be in protected employment.[84]
396 In my view, the plaintiff had the capacity to continue in his pre termination duties or work in the spare part shops if those jobs had continued be available to him.
397 Further, there is medical opinion from Mr Brownbill, Mr Ho and Dr Murphy (limited hours) that the plaintiff has the capacity to return to light work on a graduated basis at the present time.
398 Taking into account all the evidence, I am not satisfied the consequences of the plaintiff's lumbar impairment are serious. Further, I do not accept that he has suffered the requisite loss of earning capacity of 40% as a result thereof.
399 Accordingly, the plaintiff applications pursuant to clause (a) are dismissed.
400 I was not addressed by counsel for the defendants in relation to this application. Very brief submissions were made by counsel for the plaintiff.
401 Reliance was placed on Professor Carroll's view in August 2015 that the plaintiff had no current work capacity from a psychiatric view and was suffering from a depressive illness. However, Professor Carroll did not consider this situation was permanent, noting that if the plaintiff received proper treatment from a psychiatric perspective, he may regain capacity within three to six months.[85]
402 Further, on review in December 2015, Professor Carroll noted the plaintiff's symptoms were slightly improved after antidepressant medication and his Major Depressive Disorder was now responding somewhat to treatment.
403 Brief reference was made by counsel for the plaintiff to the fact that on the single examination by Dr Kalra, psychiatrist, in December 2015, the plaintiff did not complain of neck pain and focussed on his back complaint.[86]
404 This was the only occasion the plaintiff has seen a psychiatrist for treatment, and Dr Kalra gave no indication in his report that further treatment is anticipated. He made a diagnosis of an Adjustment Disorder with Depressed Mood contributed to and complicated by a Chronic Pain Syndrome. He thought the plaintiff's incapacity for work was predominantly directly a result of his physical injuries and from a purely psychiatric perspective he may have some capacity to work, noting some improvement on antidepressant medication.
405 Brian English, psychologist, saw the plaintiff three times for counselling in mid 2015, diagnosing and Adjustment Disorder with Depressed Mood and Mixed Anxiety. He then thought the plaintiff continued to face significant challenges in returning to work without treatment for chronic pain and associated mental condition.
406 On the most recent examination in February 2016 Dr Walton diagnosed a chronic adjustment disorder with mixed anxiety and depression. He thought, from a psychiatric perspective, the plaintiff was suffering from a substantial partial incapacity for work - adding pain, he would probably be totally and permanently incapacitated for work.[87]
407 Dr Doherty, who examined the plaintiff in December 2015, thought he was suffering from an Adjustment Disorder, not a Major Depressive Disorder. Any permanent impairment arising from the plaintiff's injuries was non psychiatric in nature. He considered the plaintiff could, from a psychiatric viewpoint, return to pre-injury duties and usual hours, and that the limiting factor was pain and functional limitation, noting the dismissal from work appeared to be the primary cause of the plaintiff's depressive episode and specific phobia about using public transport. He did not consider the incident itself clearly led to any extra psychiatric condition.
408 Taking into account this medical opinion, the plaintiff's evidence and the limited psychiatric treatment he has received in relation to the incident, I am not satisfied the consequences of any psychiatric condition are severe and permanent.
409 As was stated in Papamanos v Commonwealth Bank of Australia:[88]
"... There have been no symptoms and consequences seen in psychological disorders at the more severe end of the spectrum, including hospitalisation, significant psychiatric treatment and medication, and the more serious symptoms including suicidal ideation or attempts, and psychotic symptoms. The word 'severe' in the definition of the Act has been held to be a word of stronger force than 'serious'."[89]
410 Accordingly, the application pursuant to clause (c) is also dismissed.
[4] Phillips JA and Charles JA at 860-861 made similar comments
[51] T59 - both documents contained basic spelling errors
[57] Counsel for the defendants submitted in those circumstances, there was only a limited admission in terms of Ansett v Taylor (supra); T64
[58] [2010] VSCA 69; (2010) 31 VR 1 at paragraph [12]
[61] Meadows v Lichmore Pty Ltd [2013] VSCA 201
[66] Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [1]
[67] Peak Engineering (supra) at paragraph [2]
[84] T67, in her report relating to the incident injury, ignoring the plaintiff's neck injury, Ms George came to exactly the same conclusion as to the plaintiff's work capacity
[85] Professor Carroll thought 70 per cent of the plaintiff's condition related to the incident -T86
[89] Papamanos v Commonwealth Bank of Australia [2013] VCC 1491 at paragraph [68] per Judge O'Neill
Poholke
Goldacres Trading Pty Ltd & Anor [2016] VCC 371
(1995) 21 MVR 314
(2005) 14 VR 622
(2010) 31 VR 1
(2006) 14 VR 602