IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CIVIL DIVISION / Revised
Not Restricted
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
Mr D R Gibson / Ellis Palmos & Co
For the Defendants / Mr B R McKenzie / Wisewould Mahony
COUNTY COURT OF VICTORIA
250 William Street, Melbourne / !Undefined Bookmark, I

HIS HONOUR:

Preliminary

1The 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.

2This 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.

3The 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.

4The 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

5The 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.

6For 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.

7He 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

8In 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.

9In 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 xray of his lower back was undertaken in 2003.[2]

10He consulted his local medical clinic, Medical One – Taylors Lakes, in early 2010, and a CTscan 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 DrZebic. 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.

11On 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.

12Between 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.

13After 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.

14The 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 DrZebic 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 DrLunz 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.

15He was referred to Mr Graeme Brazenor, neurosurgeon, in September 2011. He complained to MrBrazenor of constant lower back pain with regular exacerbations. MrBrazenor 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.

16In 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.

17According 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 DrUta, a doctor of the same clinic as DrZebic, 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.

18He 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.

19He 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.

20In 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.

21He 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

22According to the Certificates of Capacity provided by DrUta over the period 23June to 18 August 2014, the plaintiff has no work capacity.

23The plaintiff was examined by MrGerald Moran, orthopaedic surgeon, in March 2013. The plaintiff complained of constant low back pain with restricted movements. MrMoran 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]

24MrMoran thought the injuries precluded the plaintiff from his pre-injury employment and that he was permanently unfit for all except light duties. MrMoran saw the plaintiff again in June 2014 and confirmed his earlier opinion.

25As 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]

26In 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.

27The plaintiff was examined in April 2013 and March 2014 by Dr David Middleton, occupational physician. DrMiddleton 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.

28He 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.

29The 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.

30On 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.

31The 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. DrYong 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.

32The 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: