Plover v Victorian WorkCover Authority [2014] VCC 1264 (27 June 2014)

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CIVIL DIVISION

Revised

Not Restricted

Suitable for Publication

CRAIG ANTHONY PLOVER	Plaintiff

v

VICTORIAN WORKCOVER AUTHORITY	Defendant

JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Ballarat
DATE OF HEARING:	26 June 2014
DATE OF JUDGMENT:	27 June 2014
CASE MAY BE CITED AS:	Plover v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2014] VCC 1264

Catchwords: Serious injury – injury to the lumbar spine – pain and suffering and economic loss damages

Judgment: Leave granted to issue proceedings for pain and suffering and economic loss.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T J Seccull with Mr N R Dubrow	Slater & Gordon

For the Defendant	Mr P B Jens SC with Mr M K Clarke	Thomson Geer

1 In this matter, the plaintiff in the action seeks leave to commence common-law proceedings against his former employer, Plinius Engineering & Wrought Iron Pty Ltd (“the employer”), pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) in respect of both pain and suffering and loss of earning capacity damages.

2 The application refers to an injury to the plaintiff’s lumbar spine which he sustained in the course of his employment in April or May of 2010. The injury is accepted as being a disc prolapse at L5-S1 requiring microdiscectomy.

3 At the hearing, it was conceded by the defendant that the plaintiff had suffered a “serious injury” within the meaning of s134AB(37)(a) of the Act with respect to pain and suffering consequences. Paragraph (a) provides that a “serious injury” means “a permanent serious impairment or loss of a body function”. The claim was also brought pursuant to paragraph (c), ss37, but it was very much a secondary application.

4 As a consequence of the concession, the defendant conceded that the impairment to the plaintiff’s lumbar spine, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as “at least very considerable” and “more than significant or marked”.[1] Further, the concession includes that the consequences of the injury are serious to the plaintiff and the consequences will relate to the pain and suffering such that leave should be granted under that particular head.[2]

5 In his opening, leading defence Counsel indicated that the basic issue was whether the plaintiff was able to prove that after the date of hearing, the plaintiff would continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more pursuant to s134AB(37)(e) and (f) of the Act.

6 In light of those concessions, the facts of the case as relied upon by the plaintiff can be summarised:

(i) Pursuant to agreed figures contained in exhibit S, the plaintiff’s “without injury” earnings pursuant to s134AB(37)(f)(ii) is approximately $50,000;

(ii) The loss of 40 per cent of those earnings would result in a figure of approximately $30,000 pursuant to s134AB(37)(e)(i) of the Act;

(iii) Further, that loss is to be compared to the worker’s gross income from personal exertion expressed at an annual rate which the worker is capable of earning in a suitable employment pursuant to s134AB(37)(f)(i)(b) of the Act.

7 It was virtually unanimous amongst all medical practitioners that the plaintiff had at least a theoretical retained earning capacity, the dispute being primarily whether the plaintiff is limited to approximately 12 to 20 hours per week in suitable employment.

8 The plaintiff was born in March 1967 and is a married man with three children aged 12, 19 and 20. His wife is a picker and packer with Rivers, although they have recently separated in the last month. The plaintiff left school after in Year 10 and then did a number of jobs. He worked in a saw mill, picked flowers, hung and salted sheepskins and worked for a time as a roof tiler. His occupation has always been that basically of a labourer.

9 In approximately 1999, he commenced working for the employer painting, manufacturing and installing steel. In or about April or May of 2010, he was working with a co-worker at a property in Doveton Crescent, Ballarat when he hurt his back. He and his co-worker were moving a Genie lifter (“the Genie”) that was used for lifting steel.

10 It was difficult to manoeuvre the Genie up a concrete path, as it was muddy and the wheels of the lifter kept running off the path. At one point the lifter rolled on its side and when the plaintiff tried to stop it from rolling over, he suffered a twisting injury to his back and felt immediate pain in the back. He kept working but the pain increased and started moving down his left leg.

11 On or about 1 June 2010, the plaintiff collapsed when getting out of bed and was taken to Ballarat Base Hospital. On 8 June 2010, his general practitioner referred him to orthopaedic surgeon, Dr David Mitchell, who gave him a CT-guided nerve root injection. Thereafter, he was referred to another orthopaedic surgeon, Mr David de la Harpe, who performed a microdiscectomy on 6 November 2010. The plaintiff thereafter was off work for about twelve weeks.

12 On or about 14 January 2011, he returned to light duties on reduced hours. However, his employer wanted him to do heavier work and he was essentially put back onto normal duties. The back pain started getting worse and his left leg pain was becoming more constant and started moving into the right leg. He found it impossible to cope with his duties and his employment was terminated in approximately September of 2012.

13 Thereafter, it is not in dispute that he continued to suffer from back pain and he had pain in his left leg. He attests that the pain in the left leg is constant but tends to fluctuate. As at the time of swearing his first affidavit on 2 July 2013, he stated that things like sitting for too long or standing or bending or twisting caused back pain and leg pain to worsen. At that time, he was taking three to four Panadeine Forte a day, and taking Lyrica for neuropathic pain.

14 The plaintiff’s ability to sleep was also affected by the back pain and he was restricted in his ability to do normal day-to-day activities. He tried to do gardening but found that and mowing the lawn was too painful. At that stage, he tried to re-engage with his children, such as kicking a football with them, but after five to six kicks it hurt too much and he was unable to continue.

15 At the time of swearing his second affidavit on 15 May 2014, the plaintiff stated that the pain in his back and left leg had become progressively worse since his operation in November 2010. In addition, he has now developed pain over his right buttock. He stated that his lower back pain is constant but varies in its intensity. The pain is reduced if he lies down flat for about one hour.

16 The plaintiff stated that the left leg feels as though there is a large needle down from the top of his leg to the top of his left foot and he experiences pins and needles down his left leg. If he tries to walk for too long, his left leg goes numb. His right leg, however, is not as painful as the left. However, he does experience sharp stabbing pains across his right buttock.

17 The plaintiff continues to see his general practitioner, Dr Choong, about once a month, who, in turn, prescribes Lyrica and Panadeine Forte, and Pristiq for depression. His dosage of Lyrica has been recently increased from 150 milligrams per day to 300 milligrams per day. Recently, he had completed a gymnasium swim program but unfortunately he found that after doing that program, it tended to aggravate his back pain. He states that he has been unable to work since his employment was terminated in October of 2012, and he finds this situation frustrating.

18 The plaintiff describes the last months of his employment in terms that his left leg pain became more severe as he tried to do heavier work. He was advised by his general practitioner at the time to increase his intake of Panadeine Forte to try and cope with increased duties. He was taking six to eight Panadeine Forte tablets a day. He was also drinking at night to try and dull the pain. He states he was doing this for a few months until his employment was terminated in October 2012. Although he had been working normal hours doing effectively normal duties, he states he was not coping with the physical demands of the work and he was concerned about the amount of medication that he was taking.

19 Presently, he says that when he tries to be active, his back and leg symptoms increase and it is his subjective belief that he would not be able to manage manual work at all. His hope is that he would have some capacity to do very light work on a part-time basis but he is unable to state exactly what he could do. Lifting, bending, sitting, standing and twisting all tend to increase his back pain. Since his injury, he has tried to return to trailbike riding on about three occasions but he found that the activity increased his back pain and he has had to cease.

20 Further, he states that gardening and working around the house has become increasingly difficult and he struggles with bending over in particular. He now relies on his family to do gardening duties such as weeding and mowing the lawns. He still manages to do some work on his car but he now requires help from others. Bending over the engine is painful and he is much slower when working on cars as a result. He states that he tries to do as much as he can. He often tackles tasks a little bit at a time and then resting in between. When he tries to do too much, his back and left leg pain increases.

21 The plaintiff has completed a rehabilitation course through the WorkCover insurer, completing a responsible service of alcohol and food safety handling course. He has also done a basic computer course. He states he cannot type and he does not know how to operate a computer with sufficient proficiency. He needed help from others just to put together his résumé. Further, he is currently in receipt of the Disability Support Pension as a result of the back injury.

22 The medical evidence and the disability suffered by the plaintiff are largely not in dispute. The plaintiff’s case is that he is at the limit of his performance endurance just performing light domestic tasks and, if anything, he is deteriorating. He was cross-examined to the effect that he would try to take on a number of tasks but doubts whether he will be able to perform same.

23 The operating surgeon, Mr David de la Harpe, in his report dated 22 September 2010, diagnosed a moderate sized left L5-S1 disc prolapse which would account for the plaintiff’s symptoms pre operation. Surgery was performed on 6 November 2010 and he was reviewed thereafter on 16 December 2010 and further, on 29 September 2011. At the latter review, Mr de la Harpe recorded that the plaintiff had been doing very well for several months after his microdiscectomy. However, just prior to his review, he had experienced some increased leg pain and right-sided low back pain.

24 The plaintiff had self-limited some of the duties which involved lifting and forced bending, and things had settled to a large degree. At that stage, Mr de la Harpe thought the future should be that the plaintiff should give consideration to limiting his lifting and forced bending. But apart from that, he was happy for him to continue with full-time duties as he was then performing. At that time, he felt that the plaintiff should not return to pre-injury duties but he was currently able to work as he had demonstrated and at that stage, no further surgery was contemplated.

25 Mr de la Harpe then reported again on 12 May 2014, although he had not seen the plaintiff since September of 2011. He recorded on that occasion he did not think it was likely that the plaintiff had suffered a recurrent disc prolapse, as the symptoms had settled down, so he did not proceed with an MRI scan at that stage. He then repeated that in the future, he thought the plaintiff should give consideration to limiting his lifting and forced bending and, apart from that, he was happy for him to continue with full-time duties.

27 Prior to his cessation at work, the defendant had the plaintiff examined by occupational physical, Dr David Ho, in March and September of 2011. Dr Ho noted that the MRI scan of the lumbar spine taken on 9 September 2010 described disc degeneration at the thoracolumbar junction at L4-5 and L5-S1 with broad-based left paracentral disc protrusion at L5-S1 with posterior displacement of the left S1 nerve.

28 On the first occasion, Dr Ho noted that the plaintiff had residual brief or transient slight pain into his left leg to the lateral aspect of his left calf. Occasionally he experiences a grabbing in his lower back when he twists too quickly. Clinical examination on that occasion revealed a good range of movement in the lower back with residual slight loss of sensation in the lateral aspect of the left foot, and at that stage, he noted that he had successfully increased his hours to four full days a week on selected alternative duties. In any event, Dr Ho thought on that occasion, he was certainly not fit to return to his pre-injury duties and hours.

29 On the second occasion, on 13 September 2011, he noted that the plaintiff was then working full-time on normal duties doing anything from cutting to palletising, making plates, punching holes, spray painting, helping to load trucks and shifting things in the yard. He thought the plaintiff had been coping with those duties. However, he noted that about four weeks earlier, the plaintiff had started to get pain into his right leg which was more constant.

30 Further, in the last two weeks, the pain his left leg had been more constant. He reported a slight shooting pain into his left leg which was annoying. It was now occurring daily. It used to be intermittent, depending on his activities. The shooting pain into his right leg is lasting most of the day currently. At that time, he did not have any pain his lower back but he continued to have numbness in the left foot.

31 The plaintiff was unsure of the cause of his increased symptoms in the right leg as he had not been lifting too much at work. At that time, Dr Ho noted that the plaintiff subjectively thought he had been progressing well until four weeks earlier, when he started to notice that the pain in his left leg was more constant and had been persisting or lasting most of the day in the last two weeks.

32 Although Dr Ho noted that he was essentially doing pre-injury duties, he thought he should take care of his low back henceforth by observing proper back injury prevention techniques and proper manual handling techniques whilst at work.

33 Further, the defendant had the plaintiff examined by occupational physician or occupational consultant, Dr Andrew Miller, on 23 May 2013. Dr Miller took a history that the plaintiff had continued in his employment until September 2012, whereupon he was involved in work which did not involve heavy lifting tasks or other physically demanding duties but he was nonetheless made redundant. At that time, the plaintiff was currently complaining of persistent discomfort in his lower back, restricted movements of his back and difficulty sitting or standing for long periods.

34 His comments at that stage were that the plaintiff had sustained a chronic incapacitating injury to his lower back which had been caused by the circumstances as earlier described. He considered that at that time, the condition had stabilised but he was not capable of doing the full range of pre-injury duties but he was capable of working with the following restrictions:

35 Further, he considered the plaintiff was indefinitely incapacitated for his pre-injury duties as many of the tasks had contravened restrictions that he had recommended. He was asked to consider alternative suitable employments such as:

36 His opinion was that these employment options “may be able to incorporate the restrictions recommended with the exception of crane operator”. Other suitable work he thought he may be able to perform included quality control, process and assembly work and overall, he thought the plaintiff did have a capacity for work, although he did not stipulate a number of hours that he could be so engaged.

37 The defendant has also had the plaintiff examined by Mr Rodney Simm, orthopaedic surgeon, who reported on 19 May 2014. Mr Simm noted that the pain had improved considerably once the plaintiff stopped work and there was further improvement when he commenced Lyrica some time last year. However, since then, there has been no further improvement. The plaintiff was experiencing pain every day. The pain was not constant but was present most of the time he is active. If he lies down and rests, the pain in his back diminishes and the pain in his leg goes away. The back pain is in the lumbar region from where pain radiates to the right buttock. Pain radiates down the back of the left thigh, mostly to the lower leg and ankle. He only has occasional pain extending into the left foot.

38 He noted that when he was working and struggling to cope with the back and leg pain he was drinking up to ten cans of beer at night, as well as taking up to eight Panadeine Forte per day. At present, he assists with shopping and cooking but he is not able to do heavier household cleaning. He is able to sweep but cannot vacuum. He is not able to mow his lawn.

39 Neurological examination of the lower limbs revealed evidence of left S1 radiculopathy. There was no discernible weakness and calf measurements were equal at 35 centimetres. However, the left ankle reflex was depressed compared with the right and this was consistent. The slump test was probably positive for mild residual left sciatic nerve irritation. He experienced some pain extending into the calf on performing the test.

40 Mr Simm’s diagnosis was L5-S1 lumbar disc degeneration with an associated left-sided L5-S1 disc protrusion causing left S1 nerve root compression. He stated:

42 He further stated that the plaintiff had a capacity to perform suitable employment. In this context, he needed to be confined to light work which limited him to lifting light objects between knee and chest height and allowed for flexibility with static postures. He considered he had a permanent incapacity for pre-injury employment or any physically demanding manual work.

43 It is to be noted that Mr Simm discussed employment options with the plaintiff. Apparently the plaintiff agreed that he would have the physical capacity to drive a forklift for periods of up to 30 minutes at a time. He could only drive a forklift that had reasonable suspension. He could not drive a forklift over rough and uneven terrain. He would need frequent rest and exercise periods.

44 He agreed that he could work as a parking officer. He is able to use a calculator and said that he could probably work in a retail environment. When Mr Simm explained that light packing work would involve working at a bench where he could sit or stand and objects would come from a conveyor belt and he would then pack them into boxes, he agreed that he could probably do this work. However, fairly, Mr Simm stated:

45 However, he thought he could work as a parking officer and he had a theoretical capacity for work in retail sales or work such as a console operator in a service station. He also thought he had a realistic capacity for light packing “providing the constraints could be met and accepted by any prospective employer”. Finally, and quite importantly, he stated:

46 Insofar as this last statement is capable of having more than one meaning, in the sense that the question arises whether this opinion is based on the plaintiff’s motivation to work or on his capacity to perform suitable work, I prefer the latter interpretation on the basis that nowhere in his report does Mr Simm make any adverse comment about the plaintiff’s motivation.

47 The plaintiff has produced in evidence the reports of three medical practitioners who have seen the plaintiff in 2014.

48 Consultant orthopaedic surgeon, Mr W H Huffam, saw the plaintiff on 16 May 2014. He took a relevant history that there had been episodes of back pain and muscle spasm in the past but that the frank injury in either April or May 2010 had produced a prolapse of the disc at L5-S1.

49 He also noted that when he resumed his occupation after the operation, and when he tried to get back to his normal duties, he started to get more and more pain in the back. He took a further history that the plaintiff had not worked since 15 September 2012. He noted that he had constant back pain and he gets variable pain down the left leg and occasionally has had pain down the right side. He sometimes has numbness and pins and needles to the left foot.

50 His current activities were noted to be very limited. He did some housework and took his younger son to school, washed some dishes, then had to lie down for half-an-hour. He does some more washing, et cetera, and walks about and again has to lie down. He noted that he was taking Lyrica, 155 milligrams twice a day, and Panadeine Forte if the pain is really bad.

51 The plaintiff told him he had been to Nabenet but had not found it particularly helpful. Occupations of bartender, bottle shop employee and light delivery driver were suggested. On examination, Mr Huffam noted that he had quite marked limitation of movement of the lumbar spine with muscle spasm. He also noted he was only able to flex one third of the normal range. Lateral flexion to the left was limited to about 10 degrees and caused pain radiating to the left buttock.

52 On neurological examination, the right ankle reflex was active but the left was appreciably diminished. Further, there was diminished sensation over the outer side of the left foot and ankle that is over the distribution of the first sacral nerve root. His opinion was that on examination, the back was quite irritable with muscle spasm allowing only about one third normal range of movement.

53 He considered that on neurological examination, he did have evidence of radiculopathy with a relatively diminished ankle reflex on the left side. His opinion was that the plaintiff was quite severely restricted in relation to employment and activities involving all matters of bending, lifting, twisting, pushing or lifting.

54 He considered that his capacity for suitable employment was quite severely limited considering his back condition, his education and work experience. Mr Huffam considered that suggestions of working as a bartender and in a bottle shop seemed hardly practicable, as such work would involve lifting heavy boxes of bottles, et cetera.

55 He considered that he was considerably restricted as he found it necessary to rest during the day and he was unable to perform household activities such as mowing the lawn. He also thought that he may develop further degenerative changes in his back secondary to his injury in the future. Finally, he thought he had no capability of performing any form of manual work requiring bending or lifting and his capability of performing other forms of work was quite limited. He stated:

56 The treating general practitioner, Dr James Choong, reported on 16 May 2014. He considered the plaintiff would be restricted in relation to activities such as bending, lifting, twisting and stooping, pushing, pulling and lifting, prolonged sitting, walking and standing. He considered that he was –

57 Defence Counsel relies on a Certificate of Capacity signed by Dr Choong on 25 February 2014[11] which certifies him fit for alternative duties being –

58 Defence Counsel submits that it is implicit that this Certificate is certifying the plaintiff for full hours and not part-time work as stated in his report of 16 May 2014.

59 Plaintiff’s Counsel submits that the Certificate is silent as to the number of hours and the report of 16 May 2014 explains the opinion in terms of the restrictions but does specifically refer to the number of hours. Insofar as it could be said that there is an inconsistency between the two documents, the fact that Dr Choong was not cross-examined leads me to prefer his opinion as stated in his report of 16 May 2014.

60 Finally, the plaintiff was assessed by occupational physician, Dr David Middleton, who reported on 13 November 2013 and 24 April 2014. On the first occasion, the current symptoms were described as a constant aching pain that can become severe and extended to the left leg where the pain is knife-like. He now recorded that he was depressed because of the pressure put on him by his boss and also the loss of employment and the loss of his physical capacity.

61 He was taking Pristiq, 100 milligrams daily, for depression and Lyrica, 75 milligrams, for neuropathic pain and Panadeine Forte for severe pain on an “as needs” basis. He did perform some domestic tasks such as dishes and loading the washing machine, both of which still aggravated the lower back pain. He is not able to perform any cleaning duties, stating that vacuuming and making beds “bloody kills me”. He considers that he can only walk for 20 minutes, after which he develops left leg pain and numbness; further, sitting 10 to 25 minutes, during which time he still need to change his posture, and standing still is approximately 10 minutes.

62 Thereafter, in a relatively comprehensive assessment of alternative occupations, Dr Middleton considered occupations such as retail assistant, light delivery driver, parking inspector and café worker. He noted that the plaintiff’s employment history was purely that of labouring and more recently, a basic rigger. The transferrable skills, in his opinion, had little resemblance to the nature of the identified suitable employment options.

63 Without going into chapter and verse, he considers each of the occupations and in particular, the job of parking inspector, is assessed as follows:

65 Relevantly, he considered the medical report of the defendant’s occupational consultant, Dr Andrew Miller, of 23 May 2013. He considered Dr Miller’s opinion that he could safely lift 10 kilograms to be excessive. But he noted that Dr Miller stated he must avoid movements beyond a comfortable range which was not specified and he should avoid prolonged postures for more than one hour at a time.

66 On Dr Middleton’s examination, he thought this would not be tolerable, be it walking, sitting, standing still or driving the car. Further, he notes that Dr Miller did not quantify the capacity for the plaintiff to attend work, be it per day or per week, but agreed that he was incapacitated indefinitely for his pre-injury duties.

67 Dr Middleton then considers the employment suggestions of peggy, spare parts, salesman, spotter, traffic controller and crane operator. Because of the level of pain and disability suffered by the plaintiff, he thought that all of these occupations were not representative of suitable employment. Finally, he notes, in Dr Miller’s later report, that Dr Miller considers:

68 Dr Middleton considered that the plaintiff required ongoing medical management as a result of his –

69 He was then asked to “disentangle” the physical from the psychological consequences of his injury. He stated as follows:

71 However, it was his opinion that the plaintiff did not have the transferable skills to gain employment should such suitable duties as defined under the Act be available. Finally, he thought it was likely that there would be further deterioration physically in his condition where involvement of the L4-5 disc occurs with the risk of developing arthritis in particular, in the lower facet joints of the lumbar spine. Accordingly, he thought there would be long-term deterioration in the future for the plaintiff. It was also possible he may require surgery at some future time.

72 In his second report dated 24 April 2014, Dr Middleton noted that there was some improvement in the level of left leg pain which had responded to high doses of Lyrica, now 150 milligrams twice a day. The plaintiff noted that he had to ease off with walking and sitting, noting that it was still easy to aggravate the lumbar spine with activities such as bending and lifting.

73 Dr Middleton noted that the plaintiff had undergone a course in responsible service of alcohol but that he, Dr Middleton, considered that this was not a suitable occupation, noting that service of alcohol is more than pouring drinks. The occupation involved restocking fridges, washing dishes, handling of alcoholic beverages in bulk from 24-can packs, six and dozen bottle boxes of wine and kegs of beer and cylinders of gas. He stated that a slab of beer weighs 20 kilograms and a pallet loaded with beer has a gross weight of 900 kilograms.

74 He also noted that the plaintiff was suffering with low-back pain across the lumbosacral region, describing it as an aching pain varying in severity and more to the right side than previously. He noted that his current activities included self-paced domestic duties with rest breaks as required. However, he was unable to make beds, do the vacuuming or mopping. Cooking and light domestic cleaning were done in a self-paced manner.

76 On examination, there was an absent left ankle jerk and both planters were down-going. Straight leg-raising was 75 degrees on the right, 55 degrees on the left, and the sciatic stretch test proved uncomfortable in the lower back.

77 Finally, he noted that the outcome of the operation was that he had developed a significant neuropathic component to the pain in his left leg and he had continued to suffer with a Chronic Adjustment Disorder. In his opinion, the prognosis for any significant improvement of the physical injury was poor.

78 Then addressing exclusively the physical injury and impairment to the total exclusion of any psychological or psychiatric condition, it was his opinion that the plaintiff no longer had the safe physical capacity to undertake his pre-injury duties or modified pre-injury duties on a full or part-time basis. Alternatively, if there was some suitable work that could be identified, he thought at best he would be able to perform up to 12 hours in any one week.

79 As to the plaintiff’s credit, I found him to be an honest and straightforward witness and I did not understanding leading Counsel for the defendant to demur from that proposition. In cross-examination, the plaintiff said, in a straightforward way, that:

(a) he would be willing to try and perform tasks such as a forklift driver or a parking officer but noted that there would be difficulty getting in and out of the forklift and also as a parking officer he would have to be on his feet for long periods of time;

(b) when asked if he had taken time off work because of marital difficulties, he confirmed that he had on occasions;

80 In my view, theoretically the plaintiff could work as a parking officer or performing light bench work but I do not consider that the thrust of the medical evidence is to the effect that the restrictions and the pain that he complains of is not truly in existence. I accept his evidence that as a parking inspector, for example, he would require to remain on his feet for some hours at a time and that this would be beyond him.

81 That being the case, I refer to the principles set out in Giankos v SPC Ardmona Operations Limited[18] to the effect that it is not really for the doctors to comment on the vocational abilities of patients but merely on the medical restrictions within their expertise. Having said that, the medical restrictions found by the various doctors, in my view, are in keeping with the plaintiff’s description of his symptoms and although theoretically he could perform suitable work, I have grave doubts whether he would be able to enter the workforce in any meaningful capacity. In any event, I prefer the evidence of Dr Middleton that if theoretically he could perform such work, he would be limited to 12 hours per week.

82 In my view, for the reasons expressed, the plaintiff has discharged his onus of proof in satisfying me that he would not be able to work at the required statutory level. Accordingly, leave will be granted to the plaintiff to issue proceedings for pain and suffering damages and for loss of earning capacity.

83 As a footnote, insofar as the plaintiff has suffered a consequential Adjustment Disorder and is also suffering from depression related to his matrimonial break-up, I rely on the opinions expressed by the various medico-legal examiners that the physical consequences are serious for the plaintiff, at least to the extent of the pain and suffering threshold as conceded by the defence. I also refer to the judgment of Ashley J in Jayatilake v Toyota Motor Corporation Australia Ltd.[19]

County Court of Victoria

Plover v Victorian WorkCover Authority [2014] VCC 1264 (27 June 2014)