in the county court of victoria revised at … · arnold thomas & becker ... of the accident...

COUNTY COURT OF VICTORIA 250 William Street, Melbourne

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IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

Revised Not Restricted

Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-14-03464 HAMDI ZIMAH Plaintiff v VICTORIAN WORKCOVER AUTHORITY Defendant

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JUDGE: HER HONOUR JUDGE K L BOURKE

WHERE HELD: Melbourne

DATE OF HEARING: 9 November 2015

DATE OF JUDGMENT: 2 December 2015

CASE MAY BE CITED AS: Zimah v Victorian WorkCover Authority

MEDIUM NEUTRAL CITATION: [2015] VCC 1725

REASONS FOR JUDGMENT

--- Subject: ACCIDENT COMPENSATION Catchwords: Damages – serious injury – injury to lumbar spine – loss of earning

capacity only Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38) Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v

Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Richards v Wylie (2000) 1 VR 79

Judgment: Application dismissed. ---

APPEARANCES:

Counsel Solicitors

For the Plaintiff Mr N Nightingale with Mr G Pierorazio

Arnold Thomas & Becker

For the Defendant Mr A Middleton IDP Lawyers

VCC:LP//SA/AS 1 JUDGMENT

Zimah v Victorian WorkCover Authority

HER HONOUR:

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 during the course of his employment with Polywrap (“the

employer”) on 19 July 2011 (“the said date”).

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

earning capacity only.

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

“serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined

relevantly as meaning:

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

4 The body function relied upon in this case is the lumbar spine.

5 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.

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

pain and suffering which, when judged by comparison with other cases in the

range of possible impairments, may be fairly described, at the date of the

hearing, as being “at least very considerable” and “more than significant” or

“marked”.

7 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.



8 In this case, 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.

9 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity

is to be measured.

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

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

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

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

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

Spinners Pty Ltd & Ors v Podolak1 and Grech v Orica2 in reaching my

conclusions.

13 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition,

both parties relied on medical reports and other material which was tendered in

evidence. I have read all the tendered material

The Plaintiff’s evidence

14 The plaintiff is aged fifty, having been born in January 1965 in Indonesia. Before

arriving in Australia in 2012 at the age of twenty-seven, he had completed Year

11 and worked thereafter selling second-hand cars.

15 On his arrival in Australia, the plaintiff found work with Nylex as a process

worker, and continued in that employ for ten years. During that time, he had

some mild lower back pain.

16 The plaintiff left Nylex when the factory closed down. Thereafter, he worked as

a machine operator at various factories and also ran his own courier business.

1 (2005) 14 VR 622 2 (2006) 14 VR 602



17 Prior to working with the employer, the plaintiff obtained a heavy rigid licence to

drive tray trucks.3 He did not work in that role but tried to get a job in a bus

company. He thought about that type of work when Nylex closed down.4

18 The plaintiff had not had any back problems prior to the said date.5

19 The plaintiff started work with the employer, a plastic bag manufacturer, on

10 March 2010 as a casual machine operator, working 38 hours a week.

20 The plaintiff’s work was heavy and repetitive. One of his tasks involved

repairing breaks in the plastic film on a machine. That task required a fair bit of

force and he performed it a number of times a day. He injured his back on the

said date when performing this task (“the incident”).

21 The plaintiff’s claim for compensation was accepted and he received weekly

payments until 2014.

Treatment

22 In summary, the plaintiff has been under the care of his general practitioner, Dr

Meshreky, since the incident. She organised a CT scan performed in July 2011,

which was reported to reveal an L5-S1 disc bulge with calcification.

23 The plaintiff was referred by Dr Meshreky to an orthopaedic surgeon, Mr John

McMahon, whom he saw in November 2011. He diagnosed discogenic pain

and suggested the plaintiff have ongoing conservative treatment.

24 Mr McMahon referred the plaintiff to pain management specialist, Dr Lim, whom

he saw from mid 2013 to June 2014, as a part of a pain management program.

Dr Lim has reviewed the plaintiff on three further occasions and another review

is planned. He has advised conservative treatment and there has not been any

change in the medication which is prescribed by Dr Meshreky.

3 Transcript (“T”) 13 4 T14 5 T0



25 The plaintiff denied that he told Dr Lim in mid 2014 that his pain was under

relative control, as Dr Lim had reported. The plaintiff’s pain was up and down.6

26 The plaintiff presently takes 50 milligrams of Tramadol twice a day, plus

Voltaren three times a day and Panadeine Forte up to eight times a day when

the pain is bad. When it is really bad, he relies on Endone, although he tries to

avoid it.

27 The plaintiff received physiotherapy treatment from Michael Melamed at various

times from August 2011. The plaintiff now has five Medicare funded

physiotherapy sessions a year which help only for a short time.7

Work after the incident

28 The plaintiff worked a full shift the day after the incident with assistance because

of his back pain. By the end of the following day, he could hardly move and

attended his general practitioner. The plaintiff has not been able to resume

work since.

29 The plaintiff last worked with the employer on 22 July 2011. That company has

since gone into receivership. The plaintiff could not remember exactly when

the factory closed but when he went back there with a certificate, it had closed

down.8

30 In his first affidavit sworn in February 2014, the plaintiff described how he had

attempted to rehabilitate himself and look for work, in particular through Ayres

Management. At Ayres’ suggestion, the plaintiff had obtained a forklift driver’s

licence. He was just willing to do anything. He wanted to go back to work.9

Subsequent applications for forklift work have been unsuccessful.

31 In any event, the plaintiff did not know whether he would be able to cope with

getting in and out of a forklift repeatedly, or sitting in one for a prolonged period

6 T14 7 T28 8 T10 9 T11



of time, or riding over rough surfaces.

32 The plaintiff thought forklift driving would be very hard for him because there

was a lot of twisting when you reversed, but he did not say that to Ayres.10

33 The plaintiff also obtained his Working With Children check with a view to school

bus driving.

34 The plaintiff did a communications skills course whilst working at Nylex, which

helped him with preparing resumes. He also did a work processing

fundamentals course in 1999 at Nylex.11

35 Around 2004-2005, the plaintiff competed a Certificate 3 Process Manufacturing

in Plastic Extrusion course, extending his skills as an extruder operator.

36 Through CRS, the plaintiff has undertaken a six-month work education course.

Whilst he was told the course related to the automotive industry,12 it was

primarily concerned with gaining skills writing resumes and attending

interviews. Although there was also a fair bit of computer work in the course,

that had not really equipped him with any meaningful skills.

37 The plaintiff attended the course most of the time. It was held on Mondays and

Tuesdays from 10.00am to 2.30pm with some breaks.13

38 In re-examination, the plaintiff said that after a day’s study, he would be in a lot

of pain. After the second day, his pain worsened.14

39 There were one or two days during the course when the plaintiff could not attend

because of bad pain. He initially said he was able to predict the onset of pain

but then said he did not know what was going to happen.15

10 T24 11 T13 12 T17 13 T18 14 T30 15 T32



40 The plaintiff had asked Ayres about a computer course, as suggested by Dr

Lim, and they did not provide him with anything.16 Andrew at Ayres had

suggested value in him obtaining a Working with Children Certificate to do a job

like a bus driver. A job in Altona was suggested but there was a lot of driving

from Cranbourne.17

41 As of February 2014, the plaintiff had applied for a number of jobs on a part-

time basis. He believed the limit of his work ability would be about sixteen

hours a week. He had looked for work as a courier or a pathology courier.

42 The plaintiff had applied for many jobs, mainly through email, which had only

resulted in one interview to date. At that interview, he informed the potential

employer of his back injury. He later received a letter advising he was

unsuccessful in that application.

43 Any courier work the plaintiff could do would have to involve no repetitive or

heavy lifting. The plaintiff would also be restricted, given his inability to drive for

prolonged periods. Therefore, he would not be able work for more than about

sixteen hours a week.

44 The plaintiff had not applied for any factory work at that stage as he did not

believe he would be fit for any heavy lifting, nor that he would be fit for full-time

work. He would not be able to operate his own courier service, as he once did,

as it involved very long hours and he no longer owned a van. Driving for 45

minutes was his limit.

45 In his first affidavit sworn in February 2014, the plaintiff described a range of

domestic and leisure activities in relation to which he was restricted because of

his back injury.

46 Over and above everything else, the plaintiff then found he missed being able

to work, having worked for twenty two years from the time he came to Australia.

16 T15 17 T16



He had always been a proud worker and proud of the fact he was able to provide

for his family. That had now been taken from him.

47 The plaintiff was then gravely concerned about his future as he was only forty-

nine. He had few skills to offer a prospective employer other than relying on his

physical strength, which he no longer had. He was dependant on his wife’s

income.

48 In his recent affidavit, the plaintiff confirmed he continues to suffer from

constant, ongoing low back pain radiating down into right leg into his foot, made

worse with activity.

49 The plaintiff had looked for work over the internet over the last couple of years,

including courier, factory and packing work, by email or phone but had been

unsuccessful.

50 The plaintiff has applied for part-time and full-time jobs on the internet about

four times a week.18 He has applied for light factory work, involving process

work or packing.19

51 If he was offered any such work, the plaintiff did not know how he would cope.

If the job involved being on his feet for prolonged periods or stretching, twisting,

turning, bending or lifting, he would not be able to cope. He did not think he

would be able to reliably attend work day in, day out.

52 The plaintiff experiences some degree of back pain constantly which varies in

intensity. He can experience flare ups without warning, sometimes with activity

and sometimes without. Thus, at any given time, he cannot predict how his

back will be.

53 There are some days when the plaintiff seriously doubts he would even be able

to turn up to work, let alone do any physical work.

18 T19 19 T21



54 The plaintiff did not think he could cope with courier work. Back in about 2012

for two days, he helped out a friend who had lost his licence. His friend did

most of the lifting but the plaintiff found even driving for two hours and helping

his friend with lifting was difficult. The plaintiff seriously doubts he would now

be able to do that type of work on a constant and reliable basis.

55 Whilst he worked as a used car salesman in Indonesia for family, the plaintiff

does not believe he would be able to do that work now. He has not done any

sales work since coming to Australia. Since that time, all his work has been in

process work or as a machine operator, and a short time as a courier driver.

56 The plaintiff has few, if any, computer skills, and his ability to communicate is

average at best. He does not believe he is suited to sales work. He would not

be able to be on his feet for prolonged periods and he would struggle with

washing or detailing cars. His pain also causes concentration problems and he

does not think he would be suited to salesman work.

57 The plaintiff believed that his working limit was sixteen hours per week because

that is what his doctor had told him.20 Since the injury, he has never tried any

job. The pain is always there, so he does not know what hours he could work.

He agreed that at the start he could work sixteen hours, but he did not agree

that he could do a thirty-eight hour week on modified duties.21

58 The plaintiff is always in a lot of pain. When he helps his wife at home he is in

pain and she does most things.22

59 The plaintiff last applied for a job a week prior to the hearing date as a process

worker in the south eastern suburbs through a labour hire agency in

Dandenong. He told them he was fit for part-time work.

20 T18 21 T19 22 T19



60 The plaintiff is also involved with CRS, which has been overtaken by ATM. He

has fortnightly meetings to discuss job prospects. He tells the agencies that he

is looking for full or part-time work. He would prefer to try part-time work first

and get in the system. He is not prepared to take on any full-time job because

of his back and it is too hard to work full time.23

61 The plaintiff has pain from his back all the way down to his hips to his right side

and down to his foot. After he has tried to do things around the house, his pain

is worse. His pain depends on the activity. Sometimes it comes on after 15 or

20 minutes, at other times it is longer.24

62 The plaintiff remains significantly restricted in terms of social, sporting and

domestic activities. He is now only fifty. Had he not been injured, he would

have worked until at least sixty-five.

Treaters

63 Dr Mesreky saw the plaintiff for the first time on 21 July 2011. She then thought

he was capable of going back to work but only on modified duties. He was not

able to do much lifting or bending, as that would aggravate his injury.

64 As of 17 October 2012, Dr Mesreky imposed the following restrictions on the

plaintiff’s duties:

lifting no more than 5 kilograms

not sitting for more than 45 minutes; and

no bending, pushing or pulling.

65 As the plaintiff had not been working for a long time, she thought reassessment

by an occupational therapist was important before any work trial.

66 In her report of 16 October 2013, Dr Mesreky noted the plaintiff’s condition was

now stable and he was ready to be back on modified duties with a lifting

23 T26 24 T31



restriction of no more than 5 to 10 kilograms, working 4 hours a day with a

gradual increase in hours. Her last Certificate of September 2013 was in these

terms.

67 Dr Mesreky then thought suitable employment could be light process work,

forklift driver, courier, receiving or despatch clerk or product assembler. The

plaintiff could not do heavy truck driving work.

68 In her report of 11 November 2014, Dr Mesreky noted the plaintiff’s condition

was more stable now and he was ready to be back on modified duties and an

employment assessment had been done for him.

69 Dr Mesreky confirmed the plaintiff’s work restrictions and that he would need to

work four hours a day, three days a week, to be increased later on, if he could

manage with his back. She confirmed his suitability for the jobs suggested but

the plaintiff did not think he could do heavy truck driving.

70 The plaintiff was referred by his general practitioner to Mr John McMahon,

neurosurgeon, in November 2011.

71 The plaintiff then continued to describe right-sided paraspinal lumbar back pain

with radiation to the lateral aspect of his thigh and there was some associated

numbness.

72 Mr McMahon reviewed the MRI scan which revealed L5-S1 intervertebral disc

degeneration with a slight central disc bulge but there was no nerve root

compression. He noted the disc material appeared to be immediately adjacent

to the S1 nerve roots, but the S1 nerve roots themselves were not being

compressed.

73 Mr McMahon thought the cause for back pain and lower limb pain was probably

discogenic. He referred the plaintiff to Dr Lim for pain management and

suggested he continue with physiotherapy and light work activities.



74 Mr McMahon thought the plaintiff would remain totally and permanently

incapacitated from performing heavy work activities into the future. He

considered the plaintiff would only be able to perform fairly light work activities

into the future with a lifting restriction of 10 kilograms and not being involved in

repetitive work below knee height or repetitive work above head height. He did

not feel that pushing and pulling heavy trolleys would be in the plaintiff’s best

interests in the long term and that he may well need a period of retraining for

lighter work activities such as office and desk type work.

75 Mr McMahon thought the plaintiff’s short term and long-term prognosis was

quite variable and would certainly depend on his response to chronic pain

management and rehabilitation. He anticipated the plaintiff would be able to

continue some work activities provided they had various restrictions and were

very light in nature.

76 The plaintiff commenced physiotherapy treatment at a2z Health Group in

August 2011.

77 In his report of December 2013, Michael Melamed, physiotherapist from that

clinic, noted the plaintiff had been suffering from ongoing back pain since the

incident. It had been too long since the injury and had become chronic in

nature.

78 Mr Melamed did not believe the plaintiff’s injury would completely resolve itself

anymore. He noted the plaintiff was only able to sit and stand for limited hours

and he was not allowed to lift. He would be suitable for modified duties where

he was allowed to change his positions frequently.

79 The plaintiff was referred to Dr Lim, pain medicine specialist, by his general

practitioner in June 2013.

80 In his report of 12 September 2014, Dr Lim noted that as a result of the incident,

the plaintiff was found to have suffered an intervertebral disc prolapse on



CT scan without neural impingement.

81 On review on 24 April 2014, the plaintiff reported his pain in the past month had

been under relative control. Dr Lim noted the challenge remained successfully

finding employment.

82 Dr Lim recommended the plaintiff explore, with the assistance of his NERC

team, whether Centrelink would be prepared to fund a computer program to

assist with increasing his employability.

83 On review on 5 June 2014, the plaintiff reported over the past six weeks his

pain had been reasonably well controlled. Dr Lim recommended he work with

his NERC pain OT at pursuing voluntary work as he had been unsuccessful in

finding paid work. He noted the plaintiff’s plan was that once he found voluntary

work, he would arrange to attend his last team review at the NERC.

84 Dr Lim then thought the plaintiff had had his pain sensitised and thus had a

reduced functional capacity. However, he considered the plaintiff should be

able to perform part-time light duties in an appropriately paced manner; for

example functioning below his centrally sensitised lowered pain threshold as he

had learned through the pain management program.

85 Dr Lim considered the plaintiff had to continue to activity-pace himself below his

lowered pain threshold from a long-term perspective. He had a capacity for

part-time light duties. His prognosis would be dependent on whether he could

accept that he will continue to suffer a chronic pain condition which will

unfortunately not allow him to be normal again and then move on to practise

the knowledge and skills he had the opportunity to learn through the program

to maximise his level of functioning.

86 Dr Lim noted the plaintiff had been pursuing employment but unfortunately

without success. He did have a part-time light duty capacity for employment.

However, Dr Lim thought the plaintiff would benefit from being resourced



through engagement in something like a basic computer course to increase his

level of employability.

Medico-legal examiners

87 Mr Kossmann, orthopaedic surgeon, originally examined the plaintiff on behalf

of CGU in August 2011.

88 Mr Kossmann then diagnosed discogenic back pain on the basis of multiple

disc bulges in the lumbar spine and, in particular, at the L3-4, L4-5 and L5-S1

levels.

89 Mr Kossmann then noted the plaintiff had no difficulty doing activities of daily

living. He thought the plaintiff’s capacity to return to, or stay at, work would be

reduced if he did not have physiotherapy. He recommended CGU take over

the liability for the plaintiff’s present lumbar spine condition.

90 A review was again organised on behalf of the insurer in November 2012. The

plaintiff then complained he had fluctuating back pain which was not always

present.

91 The plaintiff was then looking for work. He had restrictions and could work

either as a driver or could work in a factory; however, only on light duties. Mr

Kossmann noted the plaintiff had lifting restrictions of 5 to 10 kilograms and no

bending. He was not able to work more than three hours a day for three days

a week. He noted the plaintiff was aware that it would be difficult for him to find

work under the present conditions.

92 Mr Kossmann diagnosed discogenic and mechanical back pain on the basis of

a central disc prolapse at L5-S1 which minimally abutted the bilateral L5 nerve

roots and joint arthritic changes on the right L3-4 facet joint. He thought the

plaintiff’s condition at that time was a result of the incident.

93 Mr Kossmann re-examined the plaintiff in January 2015 on behalf of the

plaintiff’s solicitors.



94 Mr Kossmann noted that when he last saw the plaintiff, he was looking for work.

He had restrictions and was only able to work as a driver or in a factory on light

duties with the restrictions previously imposed.

95 Mr Kossmann thought, on this final examination, the plaintiff’s prognosis was

guarded and that he would continue to suffer from back pain.

96 Mr Kossmann considered the plaintiff had a work capacity; however, it was

limited. The plaintiff was unable to walk long distances, walk on uneven ground,

walk up or down stairs, walk up inclines or down declines, climb up and down

ladders, kneel, squat or carry items weighing more than 10 kilograms.

97 Regarding the identified suitable employment options, Mr Kossmann thought

the plaintiff was able to work as long as he was not forced to undertake any

work for which he had to walk long distances, walk on uneven ground, walk up

or down stairs, walk up inclines or down declines, climb up and down ladders,

kneel, squat or carry heavy items weighing more than 10 kilograms.

98 Therefore, Mr Kossmann believed the jobs of delivery driver and truck driver

were unsuitable for the plaintiff. He thought the plaintiff may have a capacity to

work as a bus driver, light process worker, product assembler or a machine

operator within the abovementioned restrictions.

99 Mr Kossmann believed the plaintiff would be able to work in an office as a desk

worker; however, he did not think the plaintiff could drive a forklift which required

rotational movements which would be contraindicated due to his lumbar

condition.

100 Mr Kossmann recommended a return to work program with two to three hours

a day and two to three days per week, slowly increasing. He doubted that the

plaintiff would ever be able to return to full duties. In particular, he would not be

able to work in physically demanding employment.

101 The plaintiff was seen by Mr Stan O’Loughlin, orthopaedic surgeon, in February



2013.

102 Mr O’Loughlin then noted the plaintiff was looking for light work but had not

been able to obtain any.

103 Mr O’Loughlin noted CT scan reports set out a central disc bulge at L5-S1 and

minor bulges at L3-4 and L4-5. The MRI scan showed a very small central disc

bulge, probably of a degenerate nature at L5-S1. He concluded the plaintiff had

a degenerative disc at L5-S1 which had a minor degenerate bulge.

104 Mr O’Loughlin then thought the plaintiff should improve with more concentrated

physiotherapy and rehabilitation. He considered the plaintiff was able to

perform most activities except those involving repeated bending and heavy

lifting. He thought, from a physical point of view, this was a minor disc bulge of

a degenerate nature and the plaintiff should improve with physical therapy and

rehabilitation. He considered the plaintiff should be able to perform any job

which did not involve repeated bending or lifting more than 10 kilograms.

105 The plaintiff was examined by Max Wearne, consultant orthopaedic surgeon, in

January 2013.

106 Mr Wearne diagnosed aggravation of a pre-existing degenerative condition of

L5-S1 intervertebral disc.

107 Mr Wearne then thought the plaintiff was capable of returning to light duties

either on a full or part-time basis with a lifting limit of 10 kilograms, no repetitive

or sustained bending, freedom to change positions as required and freedom to

take rest periods of 5 minutes or more every hour. He considered the plaintiff

would be fit enough to drive a forklift within those restrictions. He thought the

plaintiff’s condition had stabilised. He noted the reports of the CT and MRI

scans.

108 Dr Helen Sutcliffe, occupational physician, examined the plaintiff in March 2015.



109 Dr Sutcliffe diagnosed aggravation of degenerative change of L5-S1 disc with

persistent pain. She was not provided with the investigation reports, although

she referred to Mr O’Loughlin’s comments in relation thereto.

110 Dr Sutcliffe believed the plaintiff was no longer able to return to any manual

handling occupation. He could not perform bending, lifting, twisting, turning

pushing or pulling in an occupation and, unfortunately, had limited capacity for

sitting, standing and some limitation of, and capacity for, walking. She noted

driving was limited to 45 minutes and the plaintiff’s examination confirmed his

limited capacity for postures.

111 Given the plaintiff’s pain had persisted for nearly four years without resolution,

Dr Sutcliffe believed there would be persisting pain into the foreseeable future

and the presence of the disc derangement at L5-S1. She considered the

plaintiff had no capacity to undertake pre-injury work now or into the foreseeable

future. In addition, he had no capacity to undertake any of the work he had

previously done, and despite a trial of courier work, he had been unable to

maintain his employment.

112 Dr Sutcliffe did not think the plaintiff had the capacity to perform any of the jobs

suggested in the 2013 vocational report. She did not believe he could maintain

employment in any of those occupations in an effective, active or reliable

manner to the satisfaction of any employer.

Investigations

113 There was a CT scan of the lumbosacral spine in July 2011.

114 It was reported there was mild posterior focal disc bulge in the central aspect of

L5-S1 level with calcification of herniated disc material and minimal

encroachment upon the left-sided lateral recess at that level. There were

minimal posterior circumferential disc bulges at L3-4 and, to a lesser extent,

L4-5 disc spaces, with no significant compromisation of spinal canal or

intervertebral neural foramina. There were early degenerative changes at L3-



4.

115 There was an MRI scan of the lumbar spine on 12 September 2011. It was

reported there was central disc prolapse at L5-S1 minimally abutting the

bilateral L5 nerve root. There was moderate spondyloarthropathy seen within

the lumbar spine.

116 In the findings, there was comparison made to the CT scan of July 2011. Known

focal central disc bulge was seen at L5-S1 that abutted the exiting L5 nerve

root. There was no neural exit foraminal compromise. There was moderate

facet-joint arthritic changes demonstrated, with minimal joint effusion adjacent

to the right L3-4 facet joint.

Wages details

117 In the 2011 financial year, the plaintiff’s taxable income was $33,011.00. At the

time he ceased work, he was earning $780 a week. It was agreed between the

parties the appropriate “without injury” earnings figure was $800 a week.

The Defendant’s medico-legal

118 The plaintiff was examined by Dr Geoffrey Graham, occupational physician, in

January 2012.

119 Dr Graham had available reports of the investigations undertaken.

120 Dr Graham thought it was difficult to determine whether employment continued

to contribute to the plaintiff’s condition. He noted there were very minimal

findings on examination. It was probable those findings related to a

longstanding pre-existing problem.

121 On that basis, Dr Graham concluded the job with the employer no longer

contributed to the plaintiff’s current condition. He thought the plaintiff’s pre-

existing condition had overtaken any effect on his employment with the

employer but noted the plaintiff did have evidence of an ongoing low back

problem.



122 Dr Graham thought the plaintiff had a current work capacity and was fit to

perform work which did not require repetitive bending and lifting, heavy lifting,

especially from a low level, or work with a constantly bent back. The plaintiff

should be able to vary his postures, sitting and standing and walking about. He

could perform appropriate duties for normal hours per day.

123 Dr Graham thought the work as a light process worker would be suitable. Work

as a product assembler would be suitable, depending on the weight of the

products, and with appropriate restrictions. Courier driving would be

appropriate if it did not involve heavy lifting, pushing or pulling and was within

the restrictions. Heavy truck driving was dependent on a number of factors

including the need to load and unload and the means of access to the cabin.

Forklift driving would depend on a number of factors including the extent to

which the operator was required to alight from the forklift and handle loads.

Work would be suitable as an order clerk and as a receiving and despatch clerk.

Dr Graham thought there were other types of employments which fitted with the

restrictions detailed.

124 The plaintiff was seen by Mr Michael Shannon, orthopaedic surgeon, in October

2012 for the purposes of an AMA assessment.

125 On examination, thoracolumbar movements were moderately restricted, with

definite spasm. There was some restriction of straight-leg raising. Mr Shannon

saw the CT and MRI scans, and diagnosed lumbar disc degeneration with disc

bulging.

126 Mr Shannon’s only comment in relation to work capacity was that the plaintiff

was limited in the performance of heavy physical work.

127 Dr Michael Baynes, occupational physician, examined the plaintiff in August

2013. The investigations were available to him.

128 The plaintiff then told Mr Baynes of fluctuating low-back which usually occurred



around twice a week, often triggered by activity.

129 Dr Baynes noted the plaintiff reported intermittent chronic lower back pain which

affected the right buttock, with referred pain down the right leg. This was in

association with age-related degenerative changes in lumbar spine, particularly

at the calcified L5-S1 disc prolapse.

130 Dr Baynes believed the plaintiff’s current condition and incapacity was still

materially contributed to by the claimed injury.

131 Dr Baynes thought the plaintiff was fit for alternative duties where there was

lifting of no more than 10 kilograms and no lifting from below knee height or

above shoulder height. In his view, the plaintiff should not be involved in

working with constrained postures and should be able to frequently change his

posture.

132 Given the length of time off work, Dr Baynes believed a return to work of four

hours, four days a week, with a progressive increase to full-time hours over six

to eight weeks would be appropriate. He did not think the plaintiff could return

to pre-injury duties, noting the factory was closed and also the heavy nature of

the work.

133 Dr Baynes believed the roles of light process worker, product assembler,

courier, heavy truck driver, order clerk, forklift driver, and receiving and

despatch would be appropriate. Heavy truck driving with long distances

travelling would not be appropriate but driving locally would be reasonable and

appropriate. Other forms of employment that were suitable would include the

ability to lift limited weights and be able to move around.

134 Having been provided with the vocational assessment of 28 May 2013,

Dr Baynes thought, from a physical point of view, the plaintiff had a capacity to

undertake work as a delivery driver, light process worker, product assembler

and machine operator, taking into account restrictions of lifting no more than 10



kilograms, no lifting from below knee height or above shoulder height. He

confirmed the other appropriate restrictions. Further, work that involved rotation

of postures and lifting of less than 10 kilograms would be appropriate.

Vocational evidence

135 NES provided a Vocational Assessment Report in October 2011. Identified

suitable employment options in order of priority were:

light process worker ($561 gross per week)

product assembler ($764)

courier ($815)

heavy truck driver ($997)

forklift driver, upon completion of training ($825)

order clerk ($752)

receiving and despatching clerk ($1,037); and

other suitable job options identified in the NES program.

136 There was an NES Refresher Report dated 30 July 2013. It was noted the jobs

of delivery driver, truck driver – selected environments, bus driver, light process

worker – selected environments and product assembler – selected

environments were discussed with the plaintiff.

137 It was noted the plaintiff indicated a particular interest in bus driver/chauffeur

driver and would prefer to focus job search efforts in that type of work.

Overview

138 Clearly, there is no dispute that there is a serious injury, with pain and suffering

having been conceded in relation to the plaintiff’s lumbar spine impairment.

139 Whilst Dr Graham considered the incident injury no longer contributed to the

plaintiff’s current presentation, his view was not relied upon by the defendant.



140 The plaintiff’s claim was accepted and weekly payments were made until last

year.

141 Whilst there is some difference of opinion between medical practitioners as to

the investigation findings,25 I am concerned with the impairment not the injury.26

Credit

142 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:27

“… 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.” 28

143 Counsel for the plaintiff submitted that the plaintiff had tried to give a proper and

fair and honest assessment of his working capacity. There had been

surveillance. No film was shown.29

144 Counsel for the defendant did not attack the plaintiff’s credit but submitted his

evidence as to his working capacity would have more credibility had he made a

more concerted effort to return to work.30

Loss of earning capacity

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

earning capacity, the plaintiff must also establish that –

(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent

or more – s134AB(38)(e)(i); and also

(b) after the date of hearing, the relevant loss of earning capacity will continue

permanently – s134AB(38)(e)(ii).

146 The measurement of loss of earning capacity is set out in paragraph (f) which

requires a comparison between:

25 T39 26 See Winneke P in Richards v Wylie (2000) 1 VR 79 27 (2010) 31 VR 1 28 at paragraph [12] 29 T43 30 T40



(i) “without injury” earnings; and

(ii) “after injury” earnings.

147 The former must be calculated by reference to the six-year period specified in

s134AB(38)(f).

148 “Without injury” earnings consist of the gross income (expressed at an annual

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

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

personal exertion had the injury not occurred.

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

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

earning capacity.

150 The plaintiff carries the onus of proof in relation to economic loss and

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

(g) therein.

151 I am therefore required to determine a “without injury” earnings figure

152 It was agreed between the parties that the appropriate “without injury” earnings

figure was $800 per week.31 Accordingly, the relevant 60 per cent threshold

figure is $480 per week.

153 Thus, the issue is solely whether the plaintiff has the capacity to earn in excess

of $480 per week.

154 The consensus of medical opinion is that the plaintiff has a light work back with

most practitioners who have expressed a view not commenting on the number

of hours per week the plaintiff is able to work. Dr Sutcliffe is the only practitioner

who thought the plaintiff has no capacity for suitable employment.

31 T33



155 Taking into account all the evidence, I am not satisfied that the plaintiff, on a

permanent basis, has suffered the requisite loss of 40 per cent.

156 It seems the plaintiff has adopted 16 hours as his maximum working capacity

because that is what Dr Meshreky has advised. Otherwise, the plaintiff did not

explain the basis upon which he thought these hours were appropriate, saying

only that he had problems helping his wife at home.

157 Given the unpredictability of the plaintiff’s pain, it was submitted he would not

be a reliable attendee at the workplace.32 However, there is no corroborating

evidence from his general practitioner to this effect.

158 There was only the very brief return to work for two short days after the incident

and the plaintiff’s work capacity has not been tested since. His doctors had

suggested that he had a capacity to return to work on a graduated basis and

suitable jobs have been identified and they are supported by various doctors.33

159 The plaintiff holds a forklift ticket and has applied for jobs in this role and also

factory work. To date, his applications have been unsuccessful.

160 There is no up-to-date report from Dr Meshreky detailing her views as to the

plaintiff’s current work capacity.

161 The most recent certificate dated 20 September 2013, following examination on

17 September 2013, set out:

“No lifting more than 5 to 10 kilograms, no bending for long times, start with four hours a day, three days a week. After two weeks, increase from three days a week to four days a week.”34

162 This certificate was provided prior to the commencement of the pain

management program. There has been no certification since that time.

32 T42 33 T40 34 T43



163 Noting the plaintiff’s condition was more stable now and he is ready to be back

on modified duties, in her November 2014 report, Dr Meshreky confirmed he

was fit for a range of jobs, excluding heavy truck driving.35 Essentially, she

thought the plaintiff was fit for work as a forklift driver, courier, despatch clerk

and product assembler, with the potential for an increase in hours.36

164 There was no suggestion by Dr Meshreky, or any other practitioner, that at the

end of a graduated return to work program, the plaintiff would not be capable of

working in excess of 16 hours per week, although Mr Kossmann doubted the

plaintiff would ever be able to return to full-time duties.

165 Mr McMahon did not impose any hours on a return to work. He thought the

plaintiff could perform light work and may need retraining for office type duties.

166 Whilst continuing to see the plaintiff, there is no report from Dr Lim after June

2014, when he thought the plaintiff’s pain had been reasonably controlled. He

considered the plaintiff could do part-time light work, not specifying the hours

thereof, and that with further training such as a computer course, the plaintiff’s

level of employability could be increased.37

167 I am not satisfied however that simply completing a computer course would

enable the plaintiff, with his background, training, experience and his work

history, to obtain significant employment.

168 There is no recent report from the plaintiff’s treating physiotherapist but in

December 2013, Mr Melamed thought the plaintiff was fit for modified duties

where he could change his posture frequently.

169 On examination in 2013, Mr O’Loughlin agreed with Mr Wearne and Dr Baynes

that the plaintiff had a light work back and could perform appropriate duties on

35 T33 36 T35 37 T37



either on a full time or part-time basis. Mr Shannon simply commented that the

plaintiff was limited in the performance of heavy, physical work.

170 Following Mr Kossmann’s recent examination in January 2015, he thought the

plaintiff may have capacity for work as a bus driver, light process worker,

product assembler and machine operator within restrictions. He recommended

a gradual return to work program but doubted the plaintiff could return to full-

time duties.

171 Dr Sutcliffe stands alone in her view that the plaintiff does not have a capacity

for suitable employment. She does not adequately explain why the plaintiff

would be unable to work at least the hours suggested by Dr Meshreky in 2013.

172 Whilst I accept if the plaintiff was able to work only 16 hours per week in the

jobs suggested, he would suffer the requisite loss, not earning in excess of

$480,38 I am not satisfied that on a permanent basis, the plaintiff does not have

a capacity to earn in excess of that amount.

173 In the absence of any evidence from the plaintiff’s general practitioner, I am not

satisfied that the plaintiff’s problems with attendance would be such that he

would not have this potential capacity.

174 Accordingly, the plaintiff’s application in relation to loss of earning capacity is

dismissed.

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38 T46

in the county court of victoria revised at … · arnold thomas & becker ... of the accident...

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