Klaradic v Atlas Specialty Metals Pty Ltd & VWA - 29-8 ...



|IN THE COUNTY COURT OF VICTORIA | Revised |

|AT Melbourne |Not Restricted |

|CIVIL DIVISION |Suitable for Publication |

DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-13-04128

|MICHAEL KLADARIC |Plaintiff |

| | |

|v | |

| | |

|ATLAS SPECIALTY METALS PTY LTD |First Defendant |

| | |

|and | |

| | |

|VICTORIAN WORKCOVER AUTHORITY |Second Defendant |

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|JUDGE: |HIS HONOUR JUDGE O'NEILL |

|WHERE HELD: |Melbourne |

|DATE OF HEARING: |21 August 2014 |

|DATE OF JUDGMENT: |29 August 2014 |

|CASE MAY BE CITED AS: |Kladaric v Atlas Specialty Metals Pty Ltd & Victorian WorkCover Authority |

|MEDIUM NEUTRAL CITATION: |[2014] VCC 1398 | |

REASONS FOR JUDGMENT

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Subject: ACCIDENT COMPENSATION

Catchwords: Serious injury application – injury to lower spine – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity

Legislation Cited: Accident Compensation Act 1985, s134AB

Judgment: Leave granted to plaintiff in respect of pain and suffering and loss of earning capacity.

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|APPEARANCES: |Counsel |Solicitors |

|For the Plaintiff |Mr J R Moore QC with |Ellis Palmos & Co |

| |Mr D R Gibson | |

| | | |

|For the Defendants |Mr B R McKenzie |Wisewould Mahony |

HIS HONOUR:

Preliminary

The plaintiff suffered injury to his lower spine in the course of his employment with the first defendant, and in particular, on 21 December 2010. He alleges the work was heavy and strenuous, and involved, in particular, lifting and manoeuvring steel bars. He claims a range of domestic, recreational and social activities are lost or curtailed, and as a result of the injury to his lower spine, he has little work capacity.

This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the first defendant over the period from October 1999 until April 2012, and in particular, on 21 December 2010.

The body function said to be lost or impaired is the lumbar spine. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.

The plaintiff was the only witness called to give evidence and be cross-examined. In addition, affidavits of the plaintiff and his wife, medical and radiological reports, various clinical notes and certificates were tendered into evidence. I shall not refer to all of this material in the course of this judgment but rather those parts of the evidence and reports which appear to me to be of most relevance and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature and the principal authorities of the Court of Appeal are well known and it is unnecessary for me to revisit the various relevant sections, and those authorities.

Relevant background

The plaintiff was born in Croatia in 1951 and is now sixty-two years of age. He is married with three children. He remained in school until the equivalent of Year 9, and came to Australia at an early age. He commenced work with the first defendant in January 1993 as a storeman. He remained in that position until his termination in August 2012. Because of the heavy nature of his work, he had episodes of back pain from time to time. He also had problems with his left and right shoulders for which ultrasound investigations were undertaken. He had transient pain in his knees.

For recreation, he would play occasional golf and social soccer with his sons. He was mechanically competent and was restoring a 1967 Chevrolet Camaro in his spare time. He enjoyed going to drag races at Calder and Heathcote. He and his wife had a large circle of friends and socialised regularly. He enjoyed motorcycle riding and a strong relationship with his wife and children.

He was otherwise physically well, and able to work on a full-time basis for the first defendant. Aside from a brief episode of lower back pain when he was eighteen, the plaintiff had no pain nor restrictions in his lumbar spine, save in respect of the episodes to which I have referred.

The injury and its consequences

In his affidavit, the plaintiff described the work he undertook.[1] He regularly handled large and heavy steel bars, weighing up to 40 kilograms. He was also required to twist and stoop while carrying these bars and load the bars onto racks. He would usually work with another worker, but for several years before December 2010, he did this work alone.

In about 2000, he started getting episodes of pain in his lower back, at times radiating down his right leg. He saw his doctor from time to time and obtained physiotherapy treatment. An x-ray of his lower back was undertaken in 2003.[2]

He consulted his local medical clinic, Medical One – Taylors Lakes, in early 2010, and a CT scan was undertaken which showed localised spinal canal stenosis at L3-4 and L4-5, without disc prolapse or nerve impingement. In May 2010, he again went to the clinic and consulted Dr Zebic. He complained of lower back pain with radiation of pain into both legs. An MRI scan was arranged in December 2010[3] which showed multilevel disc degenerative disease with foraminal stenosis at L4-5. There was no evidence of significant neural impingement.

On 21 December 2010, he had to push a large steel bar while maintaining an awkward posture. He said he felt a sharp pain in his lower back but managed to complete his work. He reported the incident to his supervisor and the event was recorded. The incident occurred shortly prior to the Christmas break, and he hoped that his back would recover. When he returned to work on 21 January 2011, he continued to have low-back pain and pain radiating down the right side. There was a patch of numbness on the outsider of his right thigh. He took “over-the-counter” pain medication.

Between January and March 2011, he continued his normal work duties, but complained to the health and safety officer of his ongoing low-back pain. He said when he got home after work, he was in a lot of pain and his sleep was affected. His wife rubbed Voltaren cream into his lower back.

After the episode on 21 December 2010, the plaintiff continued to complain in 2011 to the health and safety officer, and was eventually referred to the “company doctor”, Dr Richard Lunz, who he saw in March 2011.

The pain in the plaintiff’s lower back and referred pain into his right groin and leg continued. He filed a WorkCover Claim Form in March 2011 and was certified by Dr Zebic as being fit only for modified duties. Between March 2011 and August 2012, he remained working for the first defendant on modified duties. Over this period, he continued to see Dr Lunz regularly and took Nurofen and Panadol for pain relief. In cross-examination, he said he did not like taking medication. He said further, that he wanted to keep working, as he needed the income to support his family. He went on an overseas trip to his native Croatia between June and August 2011. According to his affidavit, he found the plane trip extremely painful.

He was referred to Mr Graeme Brazenor, neurosurgeon, in September 2011. He complained to Mr Brazenor of constant lower back pain with regular exacerbations. Mr Brazenor concluded the plaintiff was no longer fit to work as a “picker and packer” as it required constant bending at waist level. He recommended the plaintiff obtain a back brace, which he did, and continue his light duties. He suggested the plaintiff was fit for forklift driving, and reviewed him from time to time until March 2013. He suggested the plaintiff undertake a regular exercise program, including walking for 30 minutes a day. He also suggested the plaintiff undertake truck driving providing he did not have to handle the freight.

In April 2012, he was asked to attend a meeting with management of the first defendant, who said the company could no longer provide light duties and that he should go home. His employment was officially terminated in August 2012.

According to his affidavit and his evidence, he continues to suffer constant aching lower back pain. He still has the persistent patch of numbness on the outside of his right thigh, together with a burning sensation. The pain continues to a short distance above his knee. He takes Panadol and Nurofen regularly. He now sees Dr Uta, a doctor of the same clinic as Dr Zebic, who supervises his overall condition. He still wears a back brace and walks for about 15 minutes, four times a week. He lies down each day on the floor for 30 to 60 minutes, which provides some relief. He finds it difficult to squat or kneel. He says his sleep is significantly disturbed and he wakes regularly. He feels tired and has to lie down during the day. He tends to avoid lifting of anything over a modest weight.

He socialises less, and has been unable to do much car restoration work. He still tinkers in his shed and has friends who assist. He rarely plays soccer with his sons and does very little in the garden. He has used a ride-on mower on a number of occasions but was able to mow only small areas. He is unable to do the domestic duties he previously undertook. The children now do the vacuuming and mopping. He socialises less, and his intimate relationship with his wife is affected.

He has not worked since being dismissed by the first defendant in August 2012. When he was working on modified duties for the first defendant, he was able to take a lot of rest breaks and had someone available to assist with heavier work. He has driven a forklift regularly throughout his career and says that with hard tyres, it is a very “bouncy” ride. It is not comfortable, and often the forklift has to travel over material and speed bumps. He says that stresses his back.

In cross-examination, he was asked as to whether he could work as a truck driver. He said he had never worked as a truck driver and doubted his back would cope.

He said that sometimes his back is better than at other times. He did not think he could work five days a week and it would be difficult for him to be employed according to set times. He thought he would require rest breaks in any employment and although he could do some light work, he did not think he would be reliable, particularly if his back became painful.

Medical opinions

According to the Certificates of Capacity provided by Dr Uta over the period 23 June to 18 August 2014, the plaintiff has no work capacity.

The plaintiff was examined by Mr Gerald Moran, orthopaedic surgeon, in March 2013. The plaintiff complained of constant low back pain with restricted movements. Mr Moran considered the plaintiff had aggravated multilevel disc degeneration in his lumbar spine in the course of his employment, in particular, on 21 December 2010. He thought the condition would persist and that it restricted him, in particular, in:

“(a) Prolonged sitting, standing, walking and/or driving

(b) Prolonged stooping

(c) Heavy lifting

(d) Deep bending

(e) Twisting

(f) Running

(g) Walking up and down stairs

(h) Pushing and pulling.”[4]

Mr Moran thought the injuries precluded the plaintiff from his pre-injury employment and that he was permanently unfit for all except light duties. Mr Moran saw the plaintiff again in June 2014 and confirmed his earlier opinion.

As stated, the plaintiff was treated by Mr Brazenor, neurosurgeon, over the period from 2011 until early 2013. By his report of 8 September 2012,[5] he said the plaintiff’s back pain had never been constant but rather was intermittent. On examination, he found unrestricted straight-leg raising. He concluded the plaintiff was “suffering from a sixty-year-old spine” rather than a particular injury. He was disappointed that the plaintiff’s employment was terminated and said he thought he could have continued, wearing the prescribed back brace. He concluded:

“This man’s work exacerbated his age-related degenerative changes in [the] lumbar spine and he is fit for full time employment to normal retiring age of 65 years, provided that this is in a job where he does not have to repeatedly bend at the waist or lift objects to or from the waist. I think with some tolerance by his employer and Allianz he could have continued doing his storeman job, with the only restriction being that he had to wear the back brace, and picking and packing should be minimised as much as the job allowed.”[6]

In a letter to the plaintiff’s union of 21 September 2012,[7] Mr Brazenor said that the plaintiff’s then current low back symptoms, which he described as extremely mild, were caused by age-related degenerative changes, and not by a workplace injury. However, he said that the plaintiff’s degenerative back condition was aggravated on 21 December 2010, which had largely resolved, although that aggravation meant that the plaintiff was unable to undertake employment which required recurrent bending at the waist or working below waist level without protection of the brace.

The plaintiff was examined in April 2013 and March 2014 by Dr David Middleton, occupational physician. Dr Middleton considered the plaintiff to be presenting honestly. He was provided with a copy of the NES vocational assessment report of 2 May 2012[8] and took issue with a number of findings in that report. He disagreed that the plaintiff had the capacity to work as a ticket seller, usher, checkout operator and car park attendant. He said all of these areas of employment were beyond him.[9] He commented that the vocational report had inadequately analysed the work duties involved. He also agreed the plaintiff had suffered an aggravation to the underlying age-related degenerative disease, most significantly at L3-4, L4-5 and L5-S1. He said the L5-S1 disc was herniated and aggravating the L5 nerve root. He said the plaintiff had developed nerve root entrapment consistent with the symptoms of allodynia and burning pain in the right thigh.

He said that the plaintiff would have significant restrictions in any work that he performed, in particular anything which required prolonged sitting and standing; driving; reaching; lifting heavy weights, in particular on a repetitive basis; deep bending and twisting. He said that any further suitable employment would have to be the subject of retraining and the plaintiff would require flexible hours and days and would be able to work only 15 hours per week. He concluded that the plaintiff had no capacity for employment on either a full-time or a part-time basis when regard was had to the definition of “suitable employment” under the Act. He said that that was likely to persist unless the plaintiff received vocational education. In particular, he said the plaintiff had no capacity to work as a forklift driver, given forklift trucks had no suspension nor any ability to absorb shocks.

The plaintiff was examined by Mr Kevin Siu, neurosurgeon, in July 2013. He said the plaintiff suffered an aggravation of pre-existing lumbar spondylosis. He said that any future employment would have to be restricted, where the plaintiff would refrain from bending, and lifting no more than 2 to 5 kilograms. He said that at sixty-one years of age and having been a storeman most of his working life, it was unlikely the plaintiff could be retrained. He said he thought the plaintiff had the capacity for appropriate light duties.

On behalf of the defendants, the plaintiff was examined by Dr Clive Kenna, occupational physician, in April 2011. At the time, the plaintiff was still working on light duties. He said he thought the plaintiff had suffered a discogenic injury, and noted referred symptoms in his right leg. He said the plaintiff was able to cope with the duties albeit still suffering pain. He thought the pain would decrease over time.

The plaintiff was examined by Dr Dominic Yong, occupational physician, in May 2012, and May 2013. He also agreed the plaintiff had aggravated a degenerative condition in his spine which led to radicular symptoms. He noted the plaintiff was self managing his problems with exercise and walking. Dr Yong received a history that the plaintiff assisted with various domestic duties, including cooking, washing the dishes and sweeping up leaves. He noted that he was walking for 15 minutes regularly and driving for up to 60 minutes. He was provided with the NES Vocational Assessment Report and formed the view the plaintiff would be able to undertake the duties of a ticket taker, usher, car park attendant and checkout operator. He said that any tasks the plaintiff performed should avoid repetitive bending and twisting, firm pushing or pulling, lifting more than 5 kilograms on a repeated basis and any time spent sitting, standing or walking would have to entail a variation to his posture. He said a graduated return to work program would benefit the plaintiff and he could commence employment working minimum hours, gradually increasing over a four to six-week period.

The defendants tendered a Vocational Assessment Report.[10] That Report referred to various “self-reported physical limitations”[11] and referred to a range of transferrable skills it was said the plaintiff had retained. It analysed the following areas of employment:

• Ticket taker

• Usher

• Car Park Attendant

• Checkout Operator.

It examined the various duties involved[12] and analysed the job market in respect of those areas of employment.

Loss of earnings calculations

In order to succeed in obtaining a grant of leave for loss of earnings, the plaintiff must prove that he has suffered a loss of earning capacity of 40 per cent or more as a result of the claimed injury. Pursuant to the provisions of s134AB(38)(f) of the Act, in order to determine earning capacity, a comparison is to be made between gross income from suitable employment which the worker has the capacity of earning at the time of the application, with the gross income from employment the worker was earning or capable of earning in the three years before and after injury as most fairly reflects his earning capacity. That figure should take account of any rehabilitation or retraining.[13]

Mr Moore, for the plaintiff, said the plaintiff’s gross earnings to June 2009 were $53,369. Alternatively, a comparison of the income of other employees of the first defendant could be made. The average of the earnings of those two workers is approximately $58,000, or $667.00 gross per week for the 2013 financial year.

Conclusions

There is no disagreement between the parties the plaintiff suffered an aggravation to his already degenerate lumbar spine in the course of his employment duties with the first defendant, and in particular, in the incident of December 2010. The main issues in contention are firstly, as to whether the pain, limitation and restriction from which the plaintiff currently suffers is due to the underlying degenerative disease, or still relates to the aggravation of that disease as a result of the plaintiff’s employment duties. The second issue is to whether the plaintiff has suffered a 40 per cent loss of earning capacity and the extent to which he has the capacity to undertake suitable alternative employment. The third issue is whether the plaintiff meets the “very considerable” level in respect of pain and suffering as the legislation requires.

The starting point is the credibility of the plaintiff. I found him an honest and credible witness giving a fair account of his circumstances, the ongoing pain of his lower back and the restrictions that has caused. There is no medical witness who suggests that he is exaggerating or enhancing his symptoms, and there is no diagnosis of functional overlay.

I assess the plaintiff as a relatively stoic person, continuing to work under what I accept were significant difficulties until he was dismissed from his employment in April 2012. He said quite candidly that he wanted to keep working to enable him to provide for his family. A number of the clinical notes of his treating general practitioners are to this effect. Although he has taken little in the way of prescription medication over the years, I accept his evidence that that is more because he does not like the side effects of the medication than the fact that he has only modest pain. In these circumstances, I accept his complaints of pain and restriction, difficulties with sleep and restriction on recreational, domestic and social activities, as he has described in his affidavits and in his evidence.

The first issue is the extent to which the plaintiff’s current condition is still related to employment. Mr Brazenor, who treated the plaintiff over a considerable period from 2011 to 2013, considers at least by 2012 or 2013, he was suffering the symptoms of the underlying condition. That opinion stands in contrast to the opinions of Mr Moran, Dr Middleton and Mr Siu. In assessing this issue, regard must be had to the fact that the plaintiff was able to work in full-time unrestricted employment until the injury of December 2010, albeit with exacerbations of lower back pain over the years from 2000. While I accept that the plaintiff had an underlying degenerative condition, that did not require regular treatment, medication, nor restrict the plaintiff in his work duties until December 2010. Even although the plaintiff continued to work in heavier duties until March 2011, nonetheless, the December 2010 incident marked a very significant change in the plaintiff’s condition. The most notable aspect was from that time until he was dismissed the next year, the plaintiff was in full-time modified duties. Further, I accept his evidence that on previous occasions when the plaintiff had suffered some back pain, it usually resolved without significant difficulty.

In my view, all of that evidence points to the workplace incident causing a very significant change to the plaintiff’s spinal condition. I prefer the opinions of Mr Moran, Dr Middleton and Mr Siu in that regard. I found the views of Mr Brazenor somewhat dogmatic, even although he has been a treating doctor.

In terms of the plaintiff’s work capacity, Mr McKenzie, for the defendants, argued strongly that given the plaintiff was able to undertake modified duties over a considerable period in 2011 and early 2012, that he had that same capacity at the present time. He referred to the evidence of the plaintiff that nothing of significance had changed in the plaintiff’s condition from 2012 through to the present.

He further referred to the fact that the plaintiff was not having any specialist treatment, the medication he took was “over-the-counter” medication only and referred to the entry in his general practitioner’s clinical notes of June 2012 that the plaintiff wanted to work and was able to perform nearly all his workplace duties, and was frustrated by not being allowed to work.

Mr McKenzie submitted that there was nothing major shown on the radiology such as a frank prolapse nor confirmed nerve root compression. He further noted the plaintiff had applied for jobs, including as a storeman, and a forklift driver. In that regard, in cross-examination, the plaintiff said that he applied for these jobs not certain he would be able to perform the duties, but hoping that, in the course of a face-to-face interview, there was the possibility that he may be able to obtain some other form of lighter employment. Further, Mr McKenzie said the plaintiff had an obligation to undertake rehabilitation and retraining, had not taken any steps in that regard, in particular to obtain his truck driving licence.

I accept that the plaintiff has some residual work capacity. I assess him as a determined person, prepared to make reasonable attempts to obtain and continue in employment. However, I prefer the opinions of Mr Moran, Mr Siu and Dr Middleton, that when realistically assessed, and given the restrictions that the plaintiff suffers as a result of his lumbar spine, his employment capacity is very limited. I accept the plaintiff’s evidence that while he was working for the first defendant in 2011 and 2012, he received assistance from another employee, and was able to take regular rest breaks. I further accept his evidence that he, in particular, when suffering an exacerbation of his lower back pain, which occurs regularly, would be a most unreliable employee. I do not accept the plaintiff has the capacity to perform the work referred to in the IPAR Vocational Assessment Report.

Moreover, the plaintiff is now sixty-two years of age. His whole working life in Australia has been as a storeman, or picker and packer in heavy work. He has little ability to undertake computer work, and I accept the evidence of Dr Middleton that a proper analysis of the various jobs referred in the IPAR Report show that he is not suitable for those areas of employment. As he said in cross-examination, he is not a “people person”. I take this to mean that all of the employment he has had has not involved an interface with the public, and that is not something he is comfortable with. At his age, and with the restrictions I accept his back condition places upon him, in my view, he has only a modest work capacity. I have not found it necessary to analyse in a precise arithmetical manner the extent to which his work capacity has been reduced by the workplace injury, save to say I am satisfied it is more than 40 per cent, and significantly so.

I further accept his evidence that the pain in his back is constant, exacerbated from time to time and requires him to rest regularly. I accept his evidence that his sleep is significantly interrupted and that there has been a very substantial detrimental effect upon the recreational, domestic and social activities he previously enjoyed. I accept his evidence that his relationship with his wife and family is also affected.

In these circumstances, I am satisfied that the consequences to him of the injury achieve the “very considerable” level as the legislation requires. I am further satisfied he has suffered more than a 40 per cent loss of earning capacity.

I shall grant leave to the plaintiff in that regard and make further orders as to costs.

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[1] Plaintiff’s Court Book (“PCB”) 9-12

[2] PCB 107

[3] PCB 109

[4] PCB 117

[5] PCB 61

[6] PCB 64

[7] Defendant’s Court Book (“DCB”) 33

[8] DCB 34A

[9] PCB 129

[10] DCB 34A

[11] DCB 34D

[12] DCB 34H-M

[13] Section 134AB(38)(g) of the Act

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