Act - workcover.vic.gov.au...The plaintiff relied upon two affidavits and gave viva voce evidence....

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IN THE COUNTY COURT OF VICTORIAAT MELBOURNECOMMON LAW DIVISIONSERIOUS INJURY LIST

GRAHAM TROTMAN

AVS GROUP OF COMPANIES PTY LTD

JUDGE:

WHERE HELD:

DATE OF HEARING:

DATE OF JUDGMENT:

CASE MAY BE CITED AS:

MEDIUM NEUTRAL CITATION:

RevisedNot Restricted

Suitable for Publication

Case No. Cl-14-00232

Plaintiff

Defendant

Subject:Catchwords

Legislation Cited:

Cases Cited:

Judgment:

APPEARANCES

For the Plaintiff

For the Defendant

HER HONOUR JUDGE K BOURKE

Melbourne

29 and 30 June 2015

6 August 2015

Trotman v AVS Group of Companies Pty Ltd

[2015] VCC 1054

REASONS FOR JUDGMENT

ACCIDENT COMPENSATIONSerious injury - impairment to the lumbar spine - loss of earningcapacityAccident Compensation Act 1985, s134AB(16Xb), (37) and (38);WorkCover (Litigatíon and Claims) Legal Cosfs Order 2O1OBarwon Sprnners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech vOrica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden EngineeringPty Ltd v McKnnon (2010) 31 VR 1

Leave granted to bring proceedings for damages for loss of earningcapacity.

Counsel Solicitors

Mr P Jewell QC withMr G Wofth

Nowicki Carbone

MrCDNGriffin Minter Ellison

COUNTY COURT OF VICTORIA250 William Street, Melbourne

HER HONOUR:

t This is an application for leave to bring proceedings for damages pursuant to

s134AB(16Xb) of the Accident Compensation Act 1985 ("the Act") for injury

suffered by the plaintiff in the course of his employment with the defendant on

23 December 2011 ("the said date").

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

of earning capacity only.

By notice pursuant to s4A of WorkCover (Litigation and Claims) Legal Cosfs

Order 2010, the Victorian WorkCover Authority gave notice it was satisfied the

inju.ry alleged to have been suffered in the course of the plaintiff's employment

and in particular, on 23 December 2A11, satisfied the requirements of

s134AB(38XbXi) but not the requirements of s134AB(38XbXii).

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

"serious injur!'to be found in s134AB(37) of the Act. There, "serious injury"

is defined relevantly as meaning:

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

s The body function relied upon in this application is the lumbar spine

The plaintiff bears an overall burden of proof upon the balance of probabilities.

Apartfrom the general burden, ss(19) and (38)(e) of the Act impose specific

burdens in relation to a claim for ioss of earning capacity.

By s134AB(38Xc) of the Act, the impairment must have consequences in

relation to each of pain and suffering and loss of earning capacity which, when

judged by comparison with other cases in the range of possible impairments,

may be fairly described, at the date of the hearing, as being more than

significant or marked, and as being at least very considerable.

I am required to consider the consequences to this particular plaintiff, viewed

objectively, arising from the injury. Comparison must also be made of the

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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.

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.

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

capacity is to be measured.

Subsection (38Xg) requires questions of rehabilitation and retraining be

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

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

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

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

Spinners Pty Ltd & Ors v Podolakl and Grech v Orica Australia Pty Ltd &

AnoÊ in reaching my conclusions.

The plaintiff relied upon two affidavits and gave viva voce evidence. He was

cross-examined. ln addition, both parties relied on medical reports and other

material which was tendered in evidence. I have read all the tendered

material.

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The Plaintiff's evidence

l5 The plaintiff is presently aged fifty-eight, having been born in Melbourne in

July 1957. Having left school at fifteen, he undertook an apprenticeship as a

wool classer for short time. He then worked for Borthwicks as a butcher for

ten years and later for V/Line as a forklift driver, also for about ten years.

(2005) 14VR622(2006) 14 VR 602


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From 1978, the plaintiff also has undertaken security work, having obtained a

security licence in about 1988 when he worked part time in Macs Hotel as a

security guard.

In about 1993, when the plaintiff left V/Line, he started full{ime work as a

securityguard and crowd control at Macs Hotel. Heworked until about 1996.

He then did security work at a Carlton hotel for approximately four years and

in about 2000, he started security work with the defendant at Werribee Plaza

Tavern ("Werribee").

ln about 2006, the plaintiff injured his right shoulder in a fight at the Werribee

nightclub. His general practitioner, Dr Robson, referred him to Mr Miller, an

orthopaedic s.urgeon, who arranged an MRI scan of his shoulder later that

year. As a result of that injury, the plaintiff's right shoulder blade sticks out

and he has lost some strength in his right arm and shoulder, and continues to

suffer some pain on physical stress.

There was a further shoulder injury on 1 December 2010 when the plaintiff

hurt his shoulder attempting to break up a fight at work. He attended a

general practitioner and an ultrasound was undeÉaken. The plaintiff had a

few weeks of increased shoulder pain and was off work for about a week.

The plaintiff's right shoulder nearly returned to normal. Whilst he initially

stated he had stopped taking medication for his shoulder at the time of the

incident,3 he then agreed that he was taking Voltaren up to that time.

However, he was able to do heavy work duties such as clearing coins at the

poker machine venue - an activity requiring him to raise his right arm above

shoulder height.a

â

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3 JUDGMENTTrotman v AVS Group of Companies

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The plaintiff did not bring proceedings in relation to any shoulder injury prior to

the said date.s

Whilst in the defendant's employ, the plaintiff worked about 45 hours a week

and was paid about $1,125 gross weekly.

On the said date, the plaintiff slipped on water on the floor under the bar and

fell backwards on his elbows and base of his spine ("the incident").

Following the incident, the plaintiff had elbow, back and neck pain, as well as

right shoulder pain, but thought his symptoms would resolve. He continued to

work with difficulty, with the assistance of painkillers, but the pain, particularly

in his right shoulder, began to worsen.

On about 26 March 2012, the plaintÍff woke with a lot of pain in his neck, right

shoulder and arm, and could hardly move his arm. He attended a local

general practitioner and was given a week off work. He then saw his general

practitioner, Dr Jacobs, who organised an MRI scan and a WorkCover claim

was lodged. WorkCover took over the conduct of the plaintiff's claim as the

defendant was uncooperative.

26 The plaintiff last worked wíth the defendant in April 2012.

27 Having had further investigations, the plaintiff was referred to Mr Han, a

neurosurgeon, whom he saw in September 2012. He suggested

physiotherapy, which the plaintiff attended weekly until early 2013 and then

twice a month, and then once a week. This treatment, together with

acupuncture, provided temporary relief.

28 Since medical expenses and weekly payments were terminated in late 2013,

the plaintiff has had physiotherapy irregularly, about every two weeks, as he

cannot afford it. Lack of treatment has caused worsening of his pain.

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Mr Tan reviewed the plaintiff in January 2014 and April 2015 and advised him

that there was nothing further that could be done. He advised conservative

treatment and that the condition was not likely to improve.

The plaintiff has continued to suffer neck pain and he still sees Dr Jacobs

monthly for certificates and monitoring of his painkilling medication.

The plaintiff uses heat packs and cold packs. On days when his pain is

particularly severe, he takes Voltaren, 25 milligrams two at a time and two to

four Panamax which he alternates with Panadeine Extra to manage with

breakthrough pain. He takes this medication most of the time - not every day,

probably four or times a week, and it relieves his pain a little bit.

The plaintiff does not want to take more medication as Dr Jacobs has

discussed with him that his level of intake of painkillers could interact badly

with his blood pressure medication.6

The plaintiff's neck is particularly stiff in the morning and he has to be careful

of all ¡lovgments to avoid qny ja¡ring of his ngqk. A hot shorye¡ in the morning

helps with his neck and he tries to keep his head still while shaving and

cleaning his teeth. He has to lie on the bed to limit the strain on his neck

when putting on his boots.

The plaintiff does exercises at home three times a day as directed by his

physiotherapist.

The plaintiff continues to experience significant pain and limitation in his neck

and right shoulder, which radiated from the top of his shoulder to his forearm.

That pain is persistent and can fluctuate, but there is a consistent dull ache

and sometimes there is pain for no particular reason.


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The plaintiff's pain levels fluctuate and can be aggravated, depending on

activity. Sometimes simple movements, such as turning his head, can

aggravate his neck pain.

In cross-examination, the plaintiff denied he told doctors the pain radiating

from his neck to his shoulders comes and goes. He has daily pain but he has

good and bad days.7 lf he told a doctor his pain was 4 out 10, that would have

been his level of pain when seen that day. On those days, he would not need

medication unless he had to go out and do something and he would then take

a tablet. Sometimes his neck is very painful and he has to take medication. lf

he turns too quickly or too sharply, he gets pain.

The plaintiff also suffers significant headaches which go down into his ear on

the back of his head that he had never had before. Sometimes there are

headaches with the neck pain.8 Dr Jacobs has attempted to investigate the

cause of the plaintiff's headaches but the results have been inconclusive.

The plaintiff has difficulties with activities of daily living, such as carrying

groceries, and holds them mostly with his left hand. He has difficulty dressing

himself and has to be cautious putting on his clothes.

40 The plaintiff has a weaker right hand, grip and arm strength

41 The plaintiff can manage with household activities as long as he does not

push himself and he takes it easy. He can manage mowing, vacuuming and

taking the washing off the line with his left hand. These take longer than pre-

injury and he often sought assistance with these tasks from his son when his

wife was awaiting lower back surgery. He often took painkillers to do those

duties. He has been told by his doctor not to lift.e

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After driving for about 20 or 30 minutes, the plaintiff needs to take his right

arm off the wheel. When driving for more than 30 minutes, he has increased

neck discomfort. ln those circumstances, he tries to get someone else to

drive, othenruise he takes painkillers. He tries to limit head movement while

driving.

When the plaintiff moves his head quickly or is just sittirg there looking althe

television, he has a sharp shooting pain down his shoulder into his arm. He

can only sit for about 20 minutes before he needs to rotate his neck. He has

to move about in television advertisement breaks. He needs to move away

and free his neck up after about 15 minutes if he is at a bench or sink, or

reading. After about 10 minutes, he needs a break or else, his neck pain and

headaches worsen.

The plaintiff continues to experience sleeping difficulties, often sleeping late in

the evening and waking up intermittently during the night, sleeping

predominantly on his back or right side.

Probably five nights a week the plaintiff wakes up during the night. He does

not gc to bed until 11.00pm and gets intc a deep sleep and wakes up in pain.

He slides out of bed so he does not wake up his wife. He does exercises on

the floor and then stands watching television for about 20 minutes. lf the pain

does not go, he takes a tablet. He has had to change to a thinner pillow which

has given him some relief.lo

Prior to the incident, the plaintiff was quite fit and athletic and often used to

box at home and train in martial arts with his boys, who are martial arts

enthusíasts, but he is no longer able to do this since his injury.

The plaintiff avoided running and he had put on weight since the injury, having

increased from 97 to 109 kilograms as at the date of September 2013 when

he swore his first affidavit. At that time, the plaintiff had problems skeet

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shooting at the Werribee Rifle Club, camping and playing football with his

sons. His social life is also restricted, and sexual relations had ceased.

The plaintiff can no longer do household maintenance like painting the side

fence which he did in 2008. He still mows the lawn but does so using mainly

his left arm.

Dr Jacobs has certified the plaintiff completely unfit for work and the plaintiff

has lost his ability to earn income. He is not eligible for Centrelink because of

his wife's income.

As a result of his injury, the plaintiff believes he has no capacity to do work in

a bar, sales, or as gaming attendant, security officer static, light process

worker, machine operator, product assembler, hand picker or crane operator

as suggested by Ayres, as he has limited transferrable skills, education and

considerable limitation with respect to his shoulder and neck injury.

The plaintiff has very basic líterary and computer skills. He sought assistance

from a friend to put together a resume, as he does not have an email address.

The plaintiff does not have sales experience and has limited ability to lift and

carry objects. He has attempted to look for work which he believes would be

generally suitable with respect to his education and work experience;

however, many of the jobs are unsuitable for his neck and right shoulder due

to the restrictions imposed by his injuries.

As the plaintiff's pain levels fluctuate and some days he suffers severe pain,

he would find it very difficult to attend work. He believes he would be an

unreliable employee and a liability for an employer.

The plaintiff attended DSS earlier this year enquiring about his entitlement to

benefits, as he was experiencing financial difficulties. DSS asked the plaintiff

to provide his financial details. He did so but had no idea how to enter them in

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DSS did not put pressure on the plaintiff to get a job. After he had advised

DSS of his financial details, the plaintiff spoke to a friend who helped him with

job applications. The only thing the plaintiff had in mind was that he might be

able to do forklift work, as he could not do too much manual handling,

because of his neck pain.

The plaintiff has applied for several jobs this year. On 29 April 2015, he

applied for a job as a full-time forklift driver with Kitco Transport, which his

friend found for him on the internet.

ln about May this year, he applied for work as forklift driver reach stacker with

TR Recruitment.rl On 5 June this year, he applied for a job as a forklift

operator.

The plaintiff applied for the forklift jobs because he is running very short on

money, and he thought, if anything, he might possibly be able to do this type

of work. He applied for these jobs but did not think he would last long doing

them. He would have tried to see how he long he would last.12

The plaintiff agreed he would have problems taking items off the forklift,

reversing and turning his head. There would then be the issue of pain down

his neck into his arm.

lf the plaintiff had been offered either of the two forklift jobs, he did not think

he would have lasted more than an hour and a bit, because of his neck and

shoulder pain. lt would have been unfair to the employer to tell him, "Look,

mate, I can't do the job".

The plaintiff applied for a job as a yard superuisor because he had done a little

bit of supervising in the past when he worked at V-Line. He had all the

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The plaintiff agreed he had the skills listed in the AMS assessment.la He had

very basic organisational skills but had literacy problems.ls He agreed he had

communication skills as a bouncer.

The plaintiff is not good at paperwork. He agreed he was well respected by

the employer but he needed help when he was filling out incident reports and

at times would have to speak to the manager.

The plaintiff's wife had helped him complete some of his claim forms. At other

times, he had to get the information from other people so he did not know

whether he would have in fact completed later claim forms in which his

printing appeared.

The plaintiff agreed he could fill out incident reports like that relating to his

2006 incident, which detailed problems with patrons at work such as

intoxication, refused entry and similar matters. These were not complex

matters and he was able to note them.16

The plaintiff could not do a range of tasks identified by AMS. He had seen the

type of work that was involved as a static security guard. Despite the duties

described in the AMS report, the plaintiff stressed that static guards simply do

not sit in the one place the whole time. They do come across physical

situations and have to cope with them not simply stay seated. The work

would require a lot of monitoring duties.rT He had spoken to and observed

static guards and knew that just did not stay in the one place all the time.18

The plaintiff would be required to go up and down the stairs and move around

a factory when working as a security guard.le There would be problems with


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some doors.2o The plaintiff could not run or jog if he had to chase an offender.

He would be able to push an alarm but he did not know for how long.21

68 The plaintiff could not cope with the physical requirements of a static job

because even while talking in the witness box, he had an ache going down his

neck and shoulder and all he had been doing was "chit chatting."22 The

plaintiff had not taken any medication the day of the hearing. Whilst giving

evidence, he had pain but not bad enough to take a tablet.

69 lf the plaintiff had to sit for too long, his neck "kicked off and ached and he had

to pop a tablet".23 He still suffered pain sitting in a normal position. He had

not moved his head too much at Court, and he still had neck pain.2a

70 The plaintiff disagreed that being a forklift driver was harder than doing static

security. Working as a static guard, you had to turn your head left and right,

up and down, if you are looking at loads and climbing into trucks or check

what is being taken in and out.25

The Plaintiffs treaters

71 When the plaintiff's general practitioner, Dr Jacobs, most recently reported in

July this year, he confirmed that, following examination in June 2013, he re-

issued a certificate, placing the plaintiff off all duties until the following month.

He noted the plaintiff was progressing slowly with respect to his pain

improving.

72 Dr Jacobs thought the prognosis was guarded, in that it could take months,

even years, as Mr Han stated, for the plaintiff's injuries to recover, and he

could not be very specific as to the prognosis.

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Dr Jacobs thought the plaintiff's condition had not stabilised and would require

further time for the disc prolapse to heal and for his core stability to be

improved. He noted the plaintiff may always have some degree of neck pain.

Dr Jacobs had earlier repeated these comments in his report of 4 March 2015

and on 9 April 2015, DrJacobs advised the information in his 8 July 2013

report still remained as is.

The plaintiff has attended 101 Physio in Melton West

On examination in June 2013, it was noted the plaintiff was experiencing pain

in his neck, right shoulder and right elbow, and also experienced a burning

sensation about his right scapula. He had reduced strength and function of

his right upper limb.

Monica Farag, physiotherapist, thought the plaintiff was not able to complete

any heavy lifting duties and was unable to complete any duties with repeated

overhead movements. She considered he was able to work if offered light

duties which included no heavy lifting and repeated overhead movements.

Ms Farag thought the plaintiff should be able to return to work and his

condition would not continue indefinitely. However, currently, he was unable

to return to work. She thought treatment was essential for a return to work

and progress to full duties.

Mr Han, consultant neurosurgeon, first saw the plaintiff in September 2012 on

referral from Dr Jacobs.

Mr Han noted that following the incident, the plaintiff kept working until March

2012 when he woke up one morning with severe neck pain and right arm pain

that was so bad he had to stop work on 25 March 2012.

Mr Han noted the plaintiff's symptoms had then improved. He had less pain in

his neck, although he still had pain over the right shoulder and sometimes


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pain around the elbow. Movement of the cervical spine had improved

significantly, with a full range of movement on examination.

Mr Han agreed cervical spine pain was likely to be related to disc

degeneration and prolapse and he hoped, with conservative treatment, the

plaintiff's symptoms would continue to improve. He suggested physiotherapy

and asked the plaintiff not to return to work until his pain completely settled

down. ln Mr Han's view, that may take many more months or years.

Mr Han reviewed the plaintiff on 15 January 2014. The plaintiff then had

minimal neck pain but his range of movement had improved. Nonetheless, he

had ongoíng pain and rated it as 4 out 10 and he was having regular

physiotherapy. He did not have any significant arm pain anymore but

continued to have axial neck pain.

The plaintiff returned to Mr Han on 7 April 2015. The plaintiff then continued

to have ongoing neck pain which he claimed to have every day and he was

taking Voltaren, Panadol and Panadeine Extra. The pain was located over

the posterior part of the neck associated with intermittent right ear ache.

Occasionally, there u,ras right shoulder and upper arm numbness.

While there appeared to be improvement of his neck pain, Mr Han noted any

activity and sudden movement of the plaintiff's neck would bring on sharp

lancinating pain in his neck. The plaintiff had not been able to return to work

and had been unable to continue part-time work.

Mr Han thought the plaintiff would require ongoing physiotherapy for

improvement of his range in motion and improving muscle strength and he

would also continue to take anti-inflammatory medication and analgesia.

Mr Han considered the plaintiff continued to suffer neck pain of a severe

nature, secondary to disc herníations at C5-6 and C6-7. He thought the

plaintiff had no residual employment capacity, taking into account his age,


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education, skills and training, as a result of his ongoing injury. That injury had

prevented the plaintiff and affected his ability to undertake regular fulltime or

part-time employment.

Mr Han believed the plaintiff would be unable to perform any of the duties set

out in the 2014 Ayres report either full time or paft time due to the ongoing

pain.

The plaintiff had physiotherapy at Caroline Springs Physio from Andrew

Abelmalek from early 2013.

Mr Abdelmalek reported in April 2014 that the plaintiff had made significant

progression in terms of pain and range of movements, strength and

functionality over twelve months but he was still experiencing pain with

shoulder exercises, which he attempted daily. He was not able to perform

difficult tasks such as lifting a heavy object above his head, pushing, pulling

and maintaining the same position for more than thirty minutes.

Mr Abdelmalek thought the injury had hindered the plaintiff's capability to

return to employment, keeping in mind his education, his qualification and

skills. He thought the plaintiff required considering pain management

increased functionality.

Mr Abdelmalek reported in November 2014 that he had no doubt the plaintiff

had suffered significant impairment in the neck and right shoulder with high

levels of pain that were likely to be permanent. He was not able to resume

working in his previous job and unlikely to be suitable for employment as he

had a lack of administrative or clerical skills in appearance and.experience.

Mr Abdelmalek noted that view was in line with Mr Han's report in which he

stated the plaintiff was not to return to work until his pain completely settled,

which could take years.


VCC:LM/LP/SA/AS14

Medico-legal exam iners

94 Mr Peter Kudelka, orthopaedic surgeon, examined the plaintiff in July 2014.

95 The plaintiff's symptoms were pain in the right shoulder region interfering with

sleep and restricting full use of the right arm. On examination, movement of

the cervical spine was restricted with half-normal rotation to the left.

96 Radiology and other medical opinions confirmed the diagnosis of ceruical disc

injury and right-outflow brachialgia.

97 Mr Kudelka thought the plaintiff had suffered permanent impairment due to his

neck and right arm pain and weakness with permanent negative effects on his

economic, social, recreational and domestic future. He noted the plaintiff had

not yet found suitable employment and may harre difficulties because of the

severity of symptoms, his age and his previous lack of significant clerical,

administrative or office experience.

98 Mr Kudelka thought the plaintiff's residual employment capacity was limited,

taking into account his age, education skills and training. He noted, however,

the plaintiff had a positive personality and should he wish to attempt

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orthopaedic reason why such an attempt should be made.

99 Mr David Brownbill, consultant neurosurgeon, first examined the plaintiff in

December 2014.

100 The plaintiff told him that he did not return to work because of neck pain. He

was able to help with household chores, mowed the lawn and used a

Whipper-Snipper, but was taking a lot of painkillers.

101 The plaintiff complained of neck pain situated low posteriorly, extending to

either side. That had improved, it comes and goes but is worse after physical

activity.


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Mr Brownbill noted the plaintiff was alert and cooperative without

embellishment, appearing straightforward in his presentation. Active cervical

movements were full in flexion and extension, three quarters full in lateral

flexion and lateral rotation full to the right and twothirds full to the left.

Noting Mr Han's examination findings of January 2014, Mr Brownbill found

some restriction of cervical movement and there were no objective

neurological abnormalities on examination.

Mr Brownbill thought it prudent for the plaintiff to avoid activities involving

heavy lifting, forced cervical spine mobility or holding his neck in a fixed

position.

Mr Brownbill considered, from a physical neurosurgical point of view, it may be

considered the plaintiff would be capable of a graded return to employment

avoiding those activity restrictions however, with his described ongoing neck

pain with activity exacerbation, it was likely the plaintiff would be unable to

perform any employment in an ongoing or reliable fashion. lf an attempt was

made to return to work avoiding the actions mentioned, it should be done in a

graded fashion under close medical superuision.

The number of the hours the plaintiff could work on any attempted return to

work would be dictated by his responses.

Mr Brownbill re-examined the plaintiff in June 2015. The plaintiff then advised

he was exactly the same as when last seen. He struggled to do things at

home and had to use painkillers regularly, and he did not think he could do

any work for more than a short time.

The plaintiff told Mr Brownbill he was not receiving any physical treatment. He

took Voltaren, Panadeine Extra and blood pressure medication.

The plaintiff reported neck pain present all the time, with fluctuations being

worse with neck turning and restricting all activities. There was right arm pain


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extending from the neck to the top of the shoulder, then down the outside of

the upper arm. lt comes and goes, being present about four to five times a

week, and it is a dull aching pain.

On examination, active ceruical movements were half-full in lateral flexion and

three quarters on lateral rotation to the left. Again, there was no specific

neurological abnormality.

Mr Brownbill confirmed his previous opinion as to the restriction on the

plaintiff's activities and his capacity for employment. He concluded, on

probability, the plaintiff would not be able to undertake take regular full or paft-

time employment because of the aggravated ceruical spine degenerative

change.

112 Mr Kenneth Myers, vascular surgeon, examined the plaíntiff in April 2015

113 On examination, there was approximately 50 per cent restriction of the

expected range of cervical movement apparently associated with pain. There

was apparent weakness of grip of the right hand although a full neurological

examination was not performed.

114 Mr Myers thought that following the incident, the plaintiff suffered injury to his

cervical spine with subsequent exacerbation of disability and clinical

symptoms indicative of right-arm radiculopathy. He thought the injury was

multi-level degenerative intervertebral disc disease in the cervical spine, with

probable compression of right nerve roots.

115 Mr Myers considered there was no possibility of the plaintiff returning to

regular full time or part-time employment. The plaintiff's age and vocational

background was such he would find it difficult to obtain any form of sedentary

work. Mr Myers thought it would be very difficult for the plaintiff to obtain any

regular full or pad-time employment because of his physical disability, quite

independent of any psychological overlay or pain disorder.


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Mr Myers considered the plaintiff would be unable to cope with any of the jobs

suggested by Ayres, because of the probability they would cause increased

pain, and because of intefference with these activities because of

medications. He thought the plaintiff would not return to pre-injury social,

recreational or domestic activities and any impairment relating thereto would

be considerable and longterm.

Having been provided with reports from Mr Brownbill; Dr Jacobs; Mr Han of

June 2015 and Mr Jones and Dr Lange of January 2015, Mr Myers noted

there was nothing in the further material provided that would alter his previous

opinion.

Mr Myers confirmed the plaintiff is unable to resume regular full-time or part-

time employment and his educational and vocational background was such he

would not be able to obtain alternative employment in the future. He

considered the plaintiff had no residual employment capacity.

The Defendant's medical evidence

119 Mr Miller, orthopaedic surgeon, reported following the 2006 shoulder injury.

On the last review in June 2007, Mr Miller noted the plaintiff copes quite well

with the right shoulder problems, and fortunately he is able to continue

working.

120 On examination, Mr Miller noted there appeared to be a little improvement in

the winging, although the scapula still did wing quite considerably.

121 Mr Miller thought the plaintiff seemed quite well adjusted to his injury and had

quite a sensible attitude to it. He undertook self exercise at home. He did not

believe the plaintiff required other interuention.

122

Medico-legal evidence

Dr Lange, occupational physician, first examined the plaintiff in May 2014.

The plaintiff was then having physiotherapy three times a week.


VCC:LM/LP/SA/AS18

123

124

125

126

127

128

The plaintiff advised he had a burning sensation in the right shoulder blade

and weakness in the right upper limb compared to the left. Shoulder pain was

exacerbated by activity. Over the last twelve months, he had felt his condition

had improved, especially the range of neck movement. The plaintiff's pain

level had also improved and he was capable of mowing his own lawns and he

walked his dog.

On examination, rotation of the cervical spine to the left was limited to half

normal, and abduction to the left 30 per cent normal. There was weak grip

strength on the right hand and winging of the right scapula.

Noting investigations revealed disc lesions at C5-6 and C7, Dr Lange

considered the plaintiff had a cervical radiculopathy causing ongoing pain in

the neck and right shoulder atea, along with weakness of grip strength of the

right hand and winging of the right scapula.

Dr Lange noted the plaintiff's condition was slowly improving but it had not

resolved, and he continued to have pain in the right shoulder and weakness of

the right hand. He did not think the plaintiff's condition was an aggravation of

occurrence of a pi'e-existing injury.

Dr Lange considered the plaintiff had a capacity to undertake light work with

no lifting over 5 kilograms, no heavy pushing or pulling and to commence

undertaking work for four hours a day, increasing up to full time over three

months. He thought he was not fit to return to work as a security guard

considering his medical condition and the nature of his work duty.

Dr Lange considered the jobs suggested in the NES Vocational Assessment

Report of 2014. He thought a number of those were not appropriate and not

within the plaintiff's capacity. Those included bar attendant and gaming

attendant, as well as crane operator and machine operator.


VCC:LM/LP/SAi/AS19

129

130

131

132

133

Dr Lange thought the plaintiff could not work as a bar attendant, as frequently

barrels of beer needed to be filled and that was beyond his capacity. Also,

working as a gaming attendant required lifting heavy bags of coins into

machines and emptying heavy bags of coins, both of which would be beyond

the plaintiff.

Dr Lange noted that working as a crane operator required manual dexterity

and frequent head turning. He also noted the plaintiff continued to have

restrictions in neck movements and some limited function, especially grip

strength in the right hand, and as such, he could not undertake that type of

work. Dr Lange thought both product assembly and hand packing requiring

repetitive duties may be a little difficult for the plaintiff. Light processing work

would require that the work was light and allowed the plaintiff to have rest

breaks.

Dr Lange was subsequently provided with Mr Jones' 2012 report, Mr Han's

report of January 2014 and reports from Mr Miller in relation to the earlier

shoulder injury, and investigations of the right shoulder.

Dr Lange considered the extra information in the file material provided a

different perspective in relation to the plaintiff, noting Mr Miller had indicated

the plaintiff sustained a right shoulder injury in June-August 2006 and winging

of the right scapula was then present. Further, the November 2006 MRI

indicated the plaintiff had extensive degenerative changes of the

acromioclavicular joint causing impingement, and there was a large almost full

thickness tear of the supraspinatus.

Dr Lange noted from that information, the plaintiff had a background of

degenerative problems in the right shoulder. He thought that would indicate

right shoulder problems commenced before the incident and that the plaintiff

had a significant problem in that shoulder which was longstanding.


VCC:LM/LP/SA/AS20

134

135

136

137

138

139

140

Dr Lange thought, however, the plaintiff suffered an exacerbation of his

cervical degenerative condition as a result of the incident and it continued to

be his view the plaíntiff had a diagnosis of an exacerbation of cervical

degenerative disease. He also thought there was a radiculopathy down into

the right arm, as the altered reflexes on the right side were secondary to the

plaintiff's degenerative problems in his neck.

Having altered his diagnosis to some extent by not including the winging of the

scapula and the discomfort in the right shoulder, it continued to be Dr Lange's

opinion the plaintiff does not have a capacity to return to the previous security

work he did which could involve confronting unruly patrons.

Dr tange eontinued to be of the opinion the plaintiff should limit his return to

work to lighter duties involving static security work at a gatehouse, along with

work as a retail assistant. He would also include light processing work and

even bar work, considering the nature of the plaintiff's condition and his

revised diagnosis.

Dr Lange was then provided with Mr Jones' and Mr Tan's 2O15 reports, and

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Dr Lange noted there appeared to be no dispute as to diagnosis, with the

plaintiff having significant degenerative changes in the cervical spine with

C5-6, and C6-7 cervical disc lesions.

Dr Lange noted the major problem was the plaintiff had neck pain, causing

him lack of sleep. That pain radiated to the right sÍde of the head. He noted

those symptoms appeared to be ongoing, of a significant nature, along with

weakness in the right upper limb.

Despite the fact the plaintiff's right arm symptoms appeared to have improved,

according to Mr Tan, the plaintiff now has more significant neck pain than

when evaluated by Dr Lange in 2014.


VCC:LM/LP/SA/AS 21

141

142

143

144

Dr Lange noted, according to the file material, the plaintiff has increasing neck

pain as outlined by Mr Han. He has significant radiological features of

degenerative changes at C5-6 and C6-7 with disc lesions and osteophytic

lipping. Dr Lange noted physical examination revealed absent right

brachioradialis and biceps tendon reflexes.

Dr Lange's opinion following the information provided by Mr Tan was that the

plaintiff does not have the current work capacity, primarily due to his current

neck pain secondary to C5-6 and C6-7 disc osteophyte lesions, which cause

severe neck pain.

Dr Lange noted that there had been a change, with now severe episodes of

neck pain causing ongoing significant symptoms, whereas previously, neck

pain appeared to be improved. Dr Lange's opinion was now that the plaintiff

has not improved over the course of time and has symptoms that would make

it very difficult for him to undertake sustained activities and maintain a job.

Accordingly, Dr Lange altered his opinion and agreed with Mr Han that the

plaintiff has no capacity to obtain suitable employment for which he is suited

by experience or training.

14s Mr Clive Jones, orthopaedic surgeon, first saw the plaintiff in May 2012

146 The plaintiff's problem then was pain and clicking in the neck and pain

radiating up to the right shoulder and right upper arm. He was not conscious

of any weakness of numbness in his right hand. He felt there may be some

slight improvement.

147 On examination, there was 50 per cent of the normally expected range of

cervical spine movement.

148 Mr Jones thought the clinical indications were of cervical disc degeneration,

with some possible nerve root involvement in the cervical spine producing

reflex alteration in the right arm. He noted the plaintiff had a shoulder blade


VCC:LM/LP/SA/AS22

149

150

problem in 2006 resulting in instability, but that would appear to be an old and

separate issue.

Mr Jones thought there appeared to be a current capacity for lighter work and

that something clerical could be undertaken if suitable duties were available.

Without further knowledge, Mr Jones thought it difficult to say if, and when, the

plaintiff will return to his pre-injury duties. He noted the plaintiff said he had no

wish to stay on WorkCover and was eager to get back to work as soon as

possible.

151 Mr Jones re-examined the plaintiff on 9 December 2014

152 The plaintiff advised his symptoms eontinued. The right side of his neck was

painful and he was troubled by continual neck clicking. Things had changed

somewhat and he was now reporting some pain in his right hand and some

numbness around the right thumb. His neck pain tended to radiate up to the

right ear and to the back of the right head. There was no frontal headache.

153 The plaintiff could be wakeful at night. lf this was the situation, he usually took

Panadol Extra and after half an hou¡'or so was able to go back to sleep. As

far as activities were concerned, he was able to mow the lawn and tend the

garden. He was able to drive but preferred shorter distances.

154 Mr Jones noted there was remarkably little change on examination since two

and a half years earlier. The plaintiff still had neck muscle pain and his

reflexes remained depressed. There was weakness and reduced sensation in

the right thumb and his unstable shoulder blade also persisted.

155 Mr Jones noted the diagnosis appeared to be radicular pain and reflex loss in

the right arm.

156 Mr Jones did not believe the plaintiff would be safe to work in security

situations, especially where crowd control was concerned.


VCC:LM/LP/SA/AS 23

157

158

159

160

161

162

163

Having examined the 2014 vocational assessment, Mr Jones thought the

plaintiff would be perfectly capable of working in a gatehouse reception and in

a control room role. He thought the options of security officer (static), light

process work, machine operator and product assembler would be appropriate

for the plaintiff. He noted, naturally, the plaintiff should avoid potential

confrontations which are inclined to crop up in security work.

Mr Jones was provided with Dr Lange's most recent reports and he re-

examined the plaintiff on 19 May 2015.

Mr Jones noted matters remained unchanged. On examination, there had

been little, if any, significant change since last seen. The right shoulder was

somewhat unstable on the basis of a very longstanding condition. The

amplitude of the right limb reflexes remained reduced but no muscle wasting

to measurement had occurred and thumb strength appeared to be normal.

Mr Jones noted symptoms remained much as they had been on the previous

occasion, with neck pain and stiffness with some radicular-type arm pain and

an unrelated drooping right shoulder.

The plaintiff managed household and garden maintenance tasks with some

difficulty.

Mr Jones thought the plaintiff had a light work capacity but had no future in

crowd control type work where he would be likely involved in physical conflict.

He believed the plaintiff would be suitable for gatehouse reception or control

room roles, or light process work identified by AMS. Those duties could be

undertaken full or part time, as could clerical work if available.

Medical constraints would be as set out in his previous report and Mr Jones

thought that there was unlikely to be a significant change. He considered age-

related degenerative change was the other factor contributing to the plaintiff's

current condition.


VCC:LM/LP/SAJAS24

164

165

166

167

r68

169

170

171

Mr Nye, neurosurgeon, examined the plaintiff in May 2013. The plaintiff then

indicated his capacity for neck movement had improved but pain extended

from that region to the right shoulder. He described loss of right arm strength

and a right-sided earache.

On examination, there was some restriction of cervical movement and there

was some mild neurological issues with the right upper limb.

Following this examination and investigation of the radiology, Mr Nye

concluded an injury was sustained with aggravation of cervical degenerative

disease, and particularly at C5-6, with evidence of motor radiculopathy.

Mr Nye thought the plaintiff could not resume pre-injury duties and hours. He

thought the plaintiff d¡d not have a current capacity for employment. With

further improvement with paramedical treatment, he thought there will be a

potential for a resumption of employment but not the crowd control role.

ln the future, Mr Nye thought any employment would require restrictions,

including avoidance of repeated movements of the head and neck, and use of

the arms in an overhead or outstretched manner, and a lifting limit of 5

kilograms would be appropriate and, as such, should not be conducted to

above shoulder height.

Mr Nye thought alternative employment could not then be commenced;

however, the prognosis for sueh was eonsidered favourable for the future. He

thought the plaintíff's capacity for employment should be reviewed subsequent

to any change in his condition.

Mr Nye subsequently reported having been provided with the 2012 vocational

assessment which he noted was somewhat outdated.

Mr Nye considered, in general, the positions of gaming worker, sales

assistant, bar attendant and security officer would have potential for the


VCC:LM/LP/SA/AS 25

plaintiff, provided the restrictions apply and, in regard to security officer, crowd

control would not be appropriate.

The Defendant's vocational evidence

172 Ayres Management Services Pty Ltd ("Ayres") provided a vocational and

assessment report on 1 February 2012. ldentified suitable employment

options in order of priority were: gaming worker, sales assistant, bar attendant

and security officer (following future medical clearance¡. At the time of that

assessment, the plaintiff's general practitioner had certified him unfit for work.

173 It was noted the plaintiff holds a Level Three Security Guard Crowd Control

Ticket, a Level Two First Aid, Overhead Crane and RSA certificate. He has a

gaming licence, and is also licenced as a forklift driver, crane chaser, dogman,

overhead crane, back hoe, front-end loader and excavator/operator.

174 At that stage, the plaintiff advised Ayres he would be interested in returning to

work in security or armed control.

175 Healthe Work provided a job-match assessment and labour market analysis in

May 2015. The defendant's solicitor requested this assessment in respect to

the provided job options recommended in a later vocational assessment by

Ayres in February 2014.

176 In that assessment, Ayres identified the suitable employment options in order

of priority were: bar attendant, sales assistant, gaming attendant, security

officer (static only), light process worker (selected environments), common

machine operator (selected environments), product assembler (selected

environments), hand packer (selected environments), crane operator and any

suitable job options identified in the NES program upon confirmation of a

current work capacity.

177 Ayres noted the plaintiff had skills including the ability to meet quality and

quantity requirements, good organisation skills, management skills, adequate


VCC:LM/LP/SA/AS26

English literacy, skills and experience in hospitality and security, ability to

manage difficult situations, good interpersonal skills, customer service skills

and experience, bar skills and experience, gaming licence and experience

assisting with coin clearances and knowledge, and licensing in the operation

of cranes and earthmoving equipment.

Ayres suggested the role of security officer and guard (gatehouse reception,

static, mobile and control room only).

17e The job title involved the following duties:

patrols areas and checks doors, windows and gates for unauthorised

entry

178

180

181

watches for irregularity, such as fire hazards, malfunctions or machinery

or equipment, light left on, leaking water pipes and unlocked security

doors

a issue security passes to authorised visitors and gives directions

records time of entry and departure of authorised persons and times of

inspections

monitors alarms and contacts superuisors, fire brigades or police by

telephone or radio if security is breached.

O

a

a

a

The average gross weekly wage in that role for a worker over forty-five was

$14,011.

The Healthe Work report set out that security officer gatehouse static is a role

commonly located in a variety of environments - factories, industrial parks,

apaftment blocks, office buildings and even major shopping centres. lt was

noted staff were typically responsible for:

observing guests entering and leaving buildings


VCC;LM/LP/SA/AS

a

27

a access control

a issue and check pass

arrange and liaise with couriers for parcel collection

a extensive public contact by face-to-face or telephone

a the completion of incident shift reports

a observation also by a CCTV

a alarm monitoring

may check doors and windows

The physical component of the role was described as follows:

"Upper limbs: no repetitive over-shoulder level activity. However,individuals were expected to use their upper limbs to issue passes,close doors, windows, make general hand gestures and handle a two-way radio. These tasks can be done with either hands or arm.

Sitting/standing: individuals do have the freedom to alternate theirposture at random.

Neck: minimal neck flexion. lt is recommended CCTV and othermonitoring devices be placed at eye level to reduce neck discomfort."

Taking into consideration the plaintiff's reported physical tolerances and levels

and challenges, this job option was classified as sedentary and it was

considered he could manage a proposed job description.

The author emphasised the plaintiff's focus on securing a role that will not

place him in danger where he is expected to chase and apprehend an

offender. The plaintiff must focus on securing more control room or concierge

employment where the environment is less threatening and more corporate.

185 The hourly rate for that job ranged from $17.49 to $26.42.


a

182

183

184

VCC:LM/LP/SA/AS28

26

27

28

Overview

186 Clearly, there is no issue as to compensable injury or the seriousness of the

consequences of the plaintiff's spinal impairment from a pain and suffering

perspective. The concession in relation thereto was made after a

consideration of any contribution of plaintiff's pre-existing right shoulder

condition to his present condition.

187 ln any event, although the plaintiff conceded that he was still taking Voltaren in

relation to that injury at the time of the incident, he was able to work full time in

an unrestricted manner as a security guard.

188 ln these circumstances, I do not accept, as submitted on the defendant's

behalf, that the plaintiff's right shoulder, rather than his neck, causes any

present work incapacity.26

189 Whilst there was a limited attack made on the plaintiff's credit, relating to his

medication intake pre-incident, the circumstances of filling out various claim

forms, his inability to recall the name of his friend who worked as a static

guard and his description of his work restrictions,2T I for-lnd the plaintiff was a

truthful witness.

r90 There was no surveillance film or any other evidence contradicting his claimed

level of restriction and symptoms. Further, no medical examiner suggested

the plaintiff was exaggerating or embellishing his symptoms.

191 I accept the plaintiff is a stoic, hardworking man who has a significant work

history. ln the ten years before the incident, he was working 45 hours a week

with the defendant as a crowd controller. His work history prior to that time

was impeccable, with two ten-year periods of employment with other

employers in different roles.28

T97TB2-85T106


VCC:LMiLP/SA/AS 29

192

193

194

195

196

197

r98

I note also the plaintiff's response to his 2006 shoulder injury, continuing work

thereafter for a number of years and also returning to work after the relevant

incident.

In my view, given this history and also the financial demands on his family,

now his wife is no longer working because of recent back surgery, the plaintiff

would be working if not for his neck injury.2s

Whilst the plaintiff's complaints in relation to the intensity and frequency of his

cervical pain have fluctuated over time, I accept this is part and parcel of his

degenerative cervical condition and in no way reflects any inconsistency or

lack of genuineness on his part.3o

I also accept that the plaintiff's complaints are consistent with the nature of the

his pathology, as confirmed by a number of medical practitioners in this

case.31

As the defendant conceded, the only job it was arguable the plaintiff had a

physical capacity to perform was as a static gatehouse security officer and he

did not have a capacity for the other jobs suggested in the NES vocational

reports in 2012 and 2014.32

ln essence, the defendant's submission was that, having regard to the nature

of the duties of a static security officer, the plaintiff had the physical capacity

to undertake that role.33

Taking into account all the evidence, I am satisfied that the plaintiff does not

have a capacity to work as a static security guard at a gatehouse or other

location.


29

30

31

32

33

T107T106T109T95T106

VCC:LM/LP/SÁJAS30

199

200

201

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203

204

205

Whilst the range of duties described in the vocational reports were essentially

sedentary in nature, I do not accept that the plaintiff would do as little as those

job descriptions suggested. The descriptions were generic and did not relate

to a specific job at a specific location.

Given his background and work experience, I accept the plaintiff's evidence

as to what would be involved in a real day-to-day sense in this type of role and

that it would involve tasks other than simply sitting.

ln any event, the plaintiff has problems with prolonged sitting and standing,

describing pain on simple activities such as watching television and also

having pain while standing in the witness box "chitchatting" during cross-

examination.3a

I accept the plaintiff has ongoing fluctuating pain of varying degrees in his

neck, radiating into his right arm. At times, this pain is severe. lt is subject to

flare ups. The plaintiff is restricted in his ability to move his right arm and also

to lift.

The plaintiff's treating general practitioner, Dr Jacobs, who continues to see

him monthly, has considered the plaintiff to be unfit for all duties since 2013.

Following examination in January 2015, Mr Han shared this view, as did Mr

Myers when he saw the plaintiff in April this year.

Mr Brownbill came to a similar conclusion in June 2015, noting that because

of his condition, it was unlikely the plaintiff would be able to perform any

employment in an ongoing or reliable fashion.

Significantly, Dr Lange, the only occupational physician in this case, finally

concluded, after receiving Mr Han's 2015 report, that the specific role of static

guard was not a job suitable for the plaintiff, and that he had no current work

capacity.


34 T110

VCC:LM/LP/SA/AS 31

I

206

207

208

209

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211

Mr Jones is the only recent examiner who considered the plaintiff would be

suitable for gatehouse or static security work. Whilst not doubting the

genuineness of the plaintiff's complaints, Mr Jones seems to have based his

opinion on the plaintiff having the ability to manage various tasks to a greater

degree than in fact is the case.3s

Predating a change in the plaintiff's condition noted by Mr Han in January

2015, Mr Kudelka, in July 2014, thought the plaintiff may have difficulty finding

suitable employment due to the severity of his symptoms and his previous

limited work experience.

ln May 2013, Mr Nye thought there was a potential for a return to work, with

restrictions in sales or bar work, but that work as security officer and crowd

control would not be appropriate.

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(38XeXi); and also

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

continue permanently - s1 34AB(38Xe)(ii).

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

requires a comparison between:

(í) "without injury" earnings; and

(ii) "after injury" earnings.

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

s13aAB(38)(f).


35 T114

VCC:LM/LP/SA/AS32

212

213

214

215

216

217

218

(2005) 14 VR 622at paragraph [70]This figure was not in dispute -T82

"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.

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.

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. I am therefore required to determine a "without injury" earníngs

figure, and submissions were made by eounsel in this respeet. See Barwon

Spinners Pty Ltd & Ors v Podolak.36

At the time of suffering injury, the plaintiff was working 45 hours a week and

received $1,025 gross per week, or $63,700 per annum. Sixty per cent of that

sum is $38,220, or $735 per week.37

Taking into account all the evidence, I am satisfied that the plaintiff does not

have a capacity to earn in excess of $735 a week as a static security guard.

Given his neck paín and restrictions, the plaintiff would have significant

difficulty undertaking such employment in an ongoing or reliable fashion.

I am satisfied that this loss oí earning capaciiy is perinanent. The plaintiff's

condition has stabilised and only conservative treatment will be required, as

Mr Tan described.

I am also required to consider issues of retraining and rehabilitation pursuant

to ss(g).

36

37


VCC:LM/LP/SA/AS 33

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220

ln light of my findings as to the plaintiff's impairment and his incapacity for

employment, I am satisfied there is no rehabilitation or retraining that would be

appropriate to be undertaken by the plaintiff which would alter the situation

that he has a permanent loss of earning capacity of 40 per cent or more. As

rehabilitation and retraining have nothing to offer the plaintiff in terms of his

capacity for employment, the plaintiff has satisfied the requirements of

s134AB(38X9).

Accordingly, I grant leave to the plaintiff to bring proceedings for damages for

pain and suffering and loss of earning capacity.


VCC:LM/LP/SA/AS 34

JUDGMENTTrotman'¡ A.VS Group of Companies

VCC:LM/LP/SA-/AS35

Act - workcover.vic.gov.au...The plaintiff relied upon two affidavits and gave viva voce evidence....

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Transcript of Act - workcover.vic.gov.au...The plaintiff relied upon two affidavits and gave viva voce evidence....