IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List		

Case No.  CI-20-00855

PAUL NAJDA	Plaintiff	
		
v		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	His Honour Judge Misso 	
WHERE HELD:	Geelong	
DATE OF HEARING:	25, 26 and 30 November 2020	
DATE OF JUDGMENT:	17 December 2020	
CASE MAY BE CITED AS:	Najda v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2020] VCC 1995		

REASONS FOR JUDGMENT
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Subject:		Accident Compensation
Catchwords: 	Serious injury application – injury to the lower back – concession that the pain and suffering consequences are “serious” – whether the loss of earning capacity consequences are “serious”
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013, s327
Judgment:	The plaintiff has leave to bring a proceeding at common law with respect to both pain and suffering and loss of earning capacity.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr A Macnab with
Mr A Saunders	Maurice Blackburn	
			
For the Defendant	Mr S Smith QC with
Ms K M Manning	Wisewould Mahony	

HIS HONOUR:

Introduction
1	The plaintiff commenced work with Knauf Plasterboard Pty Ltd (“the employer”) in June 2011.  The employer manufactured plasterboard at a factory at Altona.  The plaintiff was employed as a process worker.  His work involved heavy and awkward manual handling including lifting heavy 25-kilogram bags of sugar from pallets to hoppers.  On 13 December 2014, he experienced pain in his lower back when lifting heavy bags of sugar.
2	The plaintiff submitted that he has suffered a serious permanent impairment or loss of the function of his lower back.  He claims that the impairment consequences are “serious”, both in terms of pain and suffering and loss of earning capacity.  At the conclusion of the defendant’s final address, it conceded that the plaintiff’s pain and suffering consequences are “serious”, but it denied that his loss of earning capacity consequences are “serious”.
3	Mr A Macnab and Mr A Saunders of counsel appeared for the plaintiff.  Mr S Smith QC appeared with Ms K M Manning of counsel for the defendant.
The Plaintiff’s medical treatment
4	Neither the plaintiff nor the defendant saw reason to address me concerning the plaintiff’s medical treatment at any length because that evidence was largely uncontroversial, save in a relatively limited way relevant to the plaintiff’s claim that his loss of earning capacity consequences are “serious”.  Therefore, I will summarise the plaintiff’s medical treatment briefly.
5	The plaintiff was first treated by Dr Yan Wong, general practitioner, at the instigation of the defendant.  The plaintiff saw him on 15 December 2014.  Dr Wong completed a medical report dated 7 April 2015 on a form provided to him by CGU Workers Insurance in which he described the onset of the plaintiff’s lower back pain due to repetitive lifting.  His report is very brief, but, importantly, he referred to the plaintiff having physiotherapy treatment which was improving his lower back pain, and he also referred to a graduated return to work, aimed at the plaintiff returning to pre-injury hours.
6	The plaintiff commenced physiotherapy with Mr Bill Dixon, physiotherapist, on 18 December 2014.  Mr Dixon considered that the plaintiff might have suffered a disc herniation at L5-S1 or a strain of left facet joints associated with a soft tissue strain. 
7	Dr Wong referred the plaintiff to have an MRI scan, which was taken on 6 May 2015, which the radiologist considered showed a shallow L4-5 disc protrusion, causing some slight impingement of the left L5 nerve root sheath.  There is an hiatus in the medical evidence between the date when Dr Wong provided his medical report, the MRI scan and then the plaintiff seeking treatment from Dr Arthur Gruzauskas, general practitioner, who then took over the treatment of the plaintiff’s lower back.  
8	The plaintiff returned to modified duties, presumably consistent with the advice given to the defendant by Dr Wong.  Dr Wong considered that the plaintiff could eventually return to his pre-injury hours over something in the order of eight to twelve weeks.  That in fact occurred.  It would appear that the plaintiff returned to work on modified duties performing quality control tasks.  The plaintiff was able to return to full-time modified duties.  It is unclear to me when he commenced full-time modified duties, but it is probably not so important because, under cross-examination, he said he was performing full-time modified duties at least by August 2015, and continued working without apparent difficulty until February 2016, when he suffered a flareup of lower back symptoms, which resulted in him being incapacitated for work.  
The return to work
9	The defendant concentrated its cross-examination of the plaintiff on the work he performed between August 2015 and February 2016.  It submitted that the plaintiff conceded that he was able to perform the quality control tasks essentially full time.  It submitted that the only reason why the plaintiff’s return to work on those tasks was interrupted was because of the flareup.  It submitted that the plaintiff conceded that the flareup resolved within about a week, and that he returned to the same physical state he was in prior to the flareup, and that there was essentially no reason why he could not have returned to the quality control tasks which he had been performing prior to the flareup.
10	Under cross-examination, the plaintiff was asked to describe the actual quality control tasks he performed.  He was trained by the defendant as a quality control inspector.  The tasks he performed were watching plasterboard as it came off the line, and taking some away for sampling every hour.  He performed some cleaning work, operating a cleaning device known as a “wet scrubber”.  It was operated by the plaintiff sitting on it and driving it.  It was described as something like a smaller scale street sweeper.  He operated a dry sweeper which is similar to the wet scrubber in its operation.  He performed litter picking duties.  He sometimes swept around machinery.  He kept an eye on raw materials required for production purposes.  He performed some administrative work, for example photocopying and reviewing procedures which were performed in an office.  Overall, he estimated that he was working an average of 38 hours per week from about 15 August 2015.
11	Dr Gruzauskas was called to give evidence.  Under cross-examination, he was referred to his report dated 1 September 2015.  The defendant concentrated its cross-examination of him on his treatment of the plaintiff and his opinion relevant to the plaintiff’s capacity to return to modified duties performing quality control tasks.  It is clear from his report that he treated the plaintiff with Carbamazepine around the time when the plaintiff first saw him on 15 June 2015.  He noted that within about a fortnight, the plaintiff was experiencing considerably less pain and was increasing his stamina; that the plaintiff continued to improve; that when the plaintiff returned to work, he was suffering flareups when engaged in heavy work; that the flareups settled within a day, enabling the plaintiff to continue working; that the plaintiff had returned to full-time hours, and that he felt that the plaintiff was managing well.
12	Dr Gruzauskas considered that the most likely scenario at that time was for the plaintiff to continue to improve.  He considered that the plaintiff’s response to the medication he prescribed was a good prognostic sign, and he felt that the plaintiff would gradually need less physiotherapy as his stamina and strength improved and the disc prolapse gradually resolved.
The flareup and its aftermath
13	Prior to the flareup, the plaintiff was in receipt of certificates of capacity from Dr Gruzauskas.  The last certificate prior to the flareup was provided to the plaintiff following an examination on 3 February 2016.  He was certified as fit for modified duties from 3 February to 3 March 2016.  The next certificate of capacity post dated the flareup.  The plaintiff was examined on 19 February 2016.  He was certified as unfit for any duties from 19 February to 25 February 2016.  The subsequent medical certificates dated 25 February 2016 to 25 July 2016 also certify the plaintiff as unfit for any duties until 31 July 2016.  The last certificate certifies the plaintiff as being fit for alternative duties from 1 to 8 August 2016.
14	I assume that the plaintiff made a claim for compensation of some kind, because CGU Workers Compensation referred him to Mr Philip Sharp, surgeon.  The plaintiff was examined by Mr Sharp on 30 April 2016.  He provided a report dated 30 April 2016.  
15	Mr Sharp notes that he had previously seen the plaintiff on 3 May 2015.  Mr Sharp obtained a history that on 15 February 2016, the plaintiff was lifting an 18-kilogram sample of plasterboard when he suffered the flareup.  He understood the appearances on an MRI scan taken on 6 May 2015 showed an L4-5 intervertebral disc protrusion with slight impingement onto a slightly thickened left L5 nerve root.  He also understood that the plaintiff had been prescribed Carbamazepine and later, Lyrica, and was attending physiotherapy weekly and undertaking exercises.
16	After Mr Sharp examined the plaintiff, he answered a series of questions which were put to him.  He considered that the plaintiff had suffered a mechanical problem with his lower back which he believed to be an aggravation of pre-existing degenerative disease.  He considered that the flareup resulting in an incapacity was materially contributed to by what occurred on 15 February 2016.  He considered that the aggravation was temporary, but at the time of his examination, the effects of it had not ceased.  He considered that the plaintiff might be fit to return to his pre-injury duties in a month or so following his examination, but added that if he had not returned to work, he should be reviewed in three months.
17	The medical certificates demonstrate that the plaintiff did not return to work over the timeframe referred to by Mr Sharp.  There is nothing to indicate that he was reviewed within the timeframe considered appropriate by Mr Sharp.
18	It would appear that the plaintiff continued to be treated by Dr Gruzauskas through 2016.  He described suffering pain in his lower back and left leg, and then developing pain in his left hip.  He was referred to have a further MRI scan, which was taken on 9 November 2016, directed to his left hip.  There was some concern that the plaintiff may have developed an independent medical condition affecting his left hip.  He was referred to Mr John Skelley, orthopaedic surgeon.  
19	Mr Skelley saw the plaintiff on 6 December 2016 and then on four further occasions in February, July and October 2017.  He provided a report dated 30 November 2017.  He referred the plaintiff to have a diagnostic injection into his left hip which led to the plaintiff obtaining some slight improvement in the pain in his left hip.  After considering the plaintiff’s left hip complaints in the background of what he understood to be the lower back injury, Mr Skelley considered that most of the plaintiff’s pain related to his lower back, and therefore, not his hip.
20	The plaintiff was also referred to Dr Malcolm Ong, physician, of Advanced Healthcare.  The plaintiff first saw him on 2 December 2016.  He provided a report dated 4 November 2020. 
21	Dr Ong made an evaluation of the plaintiff’s medical issues and considered that he was suffering from chronic pain and also secondary psychological issues relating to his lower back injury.  He recommended that the plaintiff undergo a multidisciplinary pain management program.  The plaintiff engaged in the program, which ran from January 2017 to March 2017.
22	Dr Ong considered that the plaintiff was unfit for his pre-injury duties, and by that I understood him to mean the duties he was performing prior to December 2014.  He considered that he needed to avoid repetitive and manually intensive work in the future, and had some very limited capacity for very limited hours in either office-based or sedentary work.  He considered that given the plaintiff’s background, and no doubt the injury to his lower back, that the prospect of the plaintiff finding alternative employment would be a challenge for him.  He considered that his prognosis was guarded and that he would likely suffer persistent pain, pain-related issues and secondary psychological concerns which would limit his capacity for the foreseeable future.
23	Despite Dr Gruzauskas’ earlier optimism, that optimism was not sustained.  In his next report dated 24 October 2018, which is well past the occurrence of the flareup, Dr Gruzauskas did not consider that the plaintiff could return to his “previous occupation”, which I infer is a reference to the modified duties he was performing between August 2015 and February 2016.  He then made a very relevant observation that the plaintiff’s prognosis was complicated by the fact that “his workplace has not allowed him to have a trial of graduated return to work for some time”.  Despite that, he considered that the plaintiff was only fit for sedentary work in the future.  He added that the plaintiff would probably require ongoing treatment because, without it, the plaintiff would suffer flareups of pain.  
24	In his last report dated 8 November 2020, Dr Gruzauskas expressed a very similar opinion.  He considered that because the plaintiff had only undertaken manual work in the past, that he was unlikely to ever to be able to return to that work again, and was only physically suited to “desk jobs”.  He then referred to the limitations which the plaintiff had relevant to sitting, standing, lifting and repetitive bending, twisting and lifting.  He did not consider his physical condition would improve, given the lack of improvement over the “last few years”.
25	Under cross-examination, Dr Gruzauskas impressed me as bringing an eye for reality to the question whether the plaintiff has any capacity to return to suitable employment.  He described the plaintiff as having “gone backwards” over the last couple of years.  He was left with the impression that the plaintiff has worsened and was not functioning very well.  When he was asked to comment on the plaintiff’s evidence of his recovery from the flareup and his own view of his capacity to return to the modified duties that he was performing before the flareup, he made an interesting remark that, “[h]e lightens it a bit, he does, but there’s a lot he can’t do”.
26	Dr Gruzauskas was pressed under cross-examination on the same issue of the plaintiff’s evidence relevant to the flareup.  He said that he has observed the plaintiff in the car park outside his rooms and has observed him to have trouble with his lower back, for example, getting in and out of his car.  He added that his observations of the plaintiff are that he cannot sit for long, has problems standing and walking around, and stiffens up to the extent that he can “do a bit, then he’s got to stop”. 
27	Under further cross-examination, Dr Gruzauskas was asked to comment on the plaintiff’s capacity to work in administration, customer service, office administration and in sales, where he could occupy different postures to accommodate his lower back condition.  I think he gave a very sensible response, and, again, with an eye for reality, when he said that it would be “great” for the plaintiff to “give them a go”, but it was a matter of seeing how he would go.  He described a return to work as equating to “try and buy” with the need for the plaintiff to start with a few hours and build it up, and he added that he did not think the plaintiff’s stamina was all that good.  He considered that the opinion of Dr Baynes, occupational physician, that the plaintiff should return to work on 25 hours per week as “crazy”.  He considered that a couple of hours a day for three days a week would be preferable because the issue with chronic back problems is the onset of fatigue which is something he said he has seen with “multiple other people”.  He returned to Dr Baynes’ opinion and said that it “sounds almost bizarre”.
Medico-legal examinations
28	Professor Richard Bittar, neurosurgeon, examined the plaintiff on 14 April 2020.  He provided a report dated 14 April 2020.  He considered that the plaintiff had suffered an aggravation of lumbar spondylosis and an L4-5 intervertebral disc prolapse.  He considered that the plaintiff was permanently incapacitated for his pre-injury duties.  He considered that the plaintiff could not engage in any repetitive or heavy lifting, repetitive or sustained bending, twisting and stooping nor prolonged sitting, standing or walking.  He did not consider that the plaintiff had a capacity to engage in suitable employment.
29	Dr Joseph Slesenger, specialist occupational physician, examined the plaintiff on 24 September 2020 through a system known as Telehealth.  I understand that to be a remote system where the plaintiff and Dr Slesenger were in different locations during the examination.  Dr Slesenger provided a report dated 13 October 2020.  I note that he was provided with a significant volume of material regarding the plaintiff’s claim, some of which the plaintiff and the defendant did not rely upon in this application.  In any event, after examining the plaintiff and after reviewing that material, he considered that the plaintiff had suffered a soft tissue injury to his lumbar spine, an aggravation of degenerative disease in his lumbar spine, and chronic lower back pain with radiating features.  He also considered that the plaintiff was suffering from a medical condition affecting his left hip; however, I will ignore that part of his opinion because of the opinion of Mr Skelley, and the fact that the plaintiff and the defendant treated the left hip condition as being related to his lower back injury.  He considered that the restrictions that should be placed upon the plaintiff are no pushing, pulling, carrying or lifting over 5 kilograms; no repetitive bending and twisting; no prolonged static postures; no exposure to whole-body vibration, and avoiding walking on uneven ground.
30	Dr Slesenger was provided with what he described as “proposed alternative duties” which were the duties proposed by the defendant as being suitable employment to which the plaintiff could return full time.  They were warehouse clerk, administrator, despatch clerk, general clerk administrator, customer service person and rental officer/hire controller.  He advised against the plaintiff returning to work as a rental officer/hire controller, considered a cautious approach to him returning to work as a warehouse clerk administrator and despatch clerk, but considered that the plaintiff could return to work as a general clerk administrator and as a customer service person.  He recommended that the plaintiff return to either of those forms of employment for four hours per day, four days per week.  He otherwise considered that the plaintiff’s prognosis was guarded.
31	The defendant had the plaintiff examined by Mr Graeme Doig, orthopaedic surgeon, who examined the plaintiff on 11 February 2018, and provided a report dated 14 February 2018, and on 19 November 2019, and provided a report dated 25 November 2019. He considered that the plaintiff had suffered an intervertebral disc injury at L4-5 and appeared to have aggravated a femoroacetabular impingement problem in his left hip.  He was asked to consider the same proposed alternative duties on which Dr Slesenger made comment.  He considered that each of them was suitable and would be unlikely to exceed the restrictions which he would place upon the plaintiff.
32	Dr Baynes examined the plaintiff on 17 December 2019 and provided a report bearing the same date, and on 1 October 2020, and provided a second report bearing the same date.  The defendant concentrated on the opinion expressed by Dr Baynes in his second report, because he specifically commented upon three forms of employment referred to in a report of Recovre dated 28 September 2020 described as a suitable employment report.  The three forms of employment were as a despatch clerk,  customer service/ordering clerk, and rental/customer service officer.  The descriptions of both are extensive.  They refer to the environment in which the work is undertaken, how the tasks of the work are undertaken, and the physical demands made of the person undertaking that work.  
33	Dr Baynes considered that all were suitable and fitted within the restrictions he considered were appropriate.  He considered that the plaintiff had a capacity for work of a sedentary nature with restrictions on no lifting greater than 5 kilograms and no lifting from below knee height or above shoulder height, no repetitive lifting, and the capacity to rotate postures between sitting, standing and walking without being required to repetitively go up and down stairs or squat.  Due to the plaintiff’s reliance on a walking stick, he did not consider that working on a shop floor in a factory was suitable.  Overall, he considered that the plaintiff could initially commence in either of those three forms of employment for 25 hours per week, progressively increasing his hours as he became work hardened, and presumably increasing to full-time hours.
34	It is convenient to observe at this point that the forms of employment commented upon by Dr Slesenger and Dr Baynes were derived from different vocational reports; however, the general nature of all of them appear to be similar, and in any event, no issue was taken by the defendant that the observations made by Dr Slesenger are of relevance.
The Plaintiff’s submissions
35	The plaintiff emphasised that the combination of the nature and extent of the plaintiff’s lower back injury and his pain and suffering consequences demonstrate that he has suffered a significant impairment of the function of his lower back.  The defendant did not challenge the plaintiff’s evidence relevant to his pain and suffering consequences except to the extent that it challenged the plaintiff’s evidence that he is effectively totally incapacitated for suitable employment.
36	In summary, the plaintiff’s evidence relevant to his pain and suffering consequences was as follows:
•	Constant lower back and left leg pain with pain radiating into the left hip and down the left leg to his foot.
•	Flareups of pain which increase his pain levels.
•	Worsening symptoms of pain in cold weather.
•	Difficulty engaging in activities involving bending, lifting, twisting or stooping.  Difficulty sitting for long periods of time and difficulty standing for long periods of time.  Needing the use of a walking stick.
•	Difficulty falling asleep.  Being woken by pain.  Experiencing tiredness and fatigue due to lack of sleep.
•	Requiring assistance with gardening.
•	Requiring a seat when showering.
•	Difficulty engaging in domestic tasks, such as vacuuming, mopping and avoiding physical activities like lawnmowing and washing his car.
•	Reduction in social activities, such as watching live bands, watching football and soccer.
•	No longer going camping with friends.
•	Difficulty driving for lengthy periods of time.
37	The plaintiff continues to see Dr Gruzauskas for treatment.  He was prescribed Carbamazepine, and later, Lyrica and Endep.
38	In answer to the defendant’s thesis that the plaintiff accepted that he recovered from the flareup within one week and could now be working full time performing the same tasks he was performing prior to the occurrence of the flareup, the plaintiff submitted that his evidence does not support that thesis.  Under cross-examination, the plaintiff doubted that he could return to those tasks nor to any of the other jobs which the defendant contended were suitable employment.  The plaintiff said he could not work full time now.  He described needing to adjust his posture, presumably due to the onset of pain.  He is restricted in lifting, sitting and standing.  He described his capacity to work consistently as being unpredictable due to flareups of pain.  The effect of his evidence was that these consequences would make it difficult for him to work.
The Defendant’s submissions 
39	I think I have adequately touched upon the substance of the defendant’s submissions.  Essentially, it was the defendant’s thesis that following the plaintiff’s recovery from the flareup, there was no reason then, nor any reason now, why the plaintiff could not return to the work he was doing before the flareup and to other work commented upon by Dr Baynes as being suitable employment.
Conclusions
40	Firstly, I think the plaintiff gave a truthful account of the nature and extent of the impairment of the function of his lower back, both in terms of pain and suffering consequences and loss of earning capacity consequences.  To the extent that there was any attack on his creditworthiness and reliability, I reject any notion that there has been any significant impact upon either.
41	Secondly, the thesis advanced by the defendant is by no means as simple as it appears relevant to whether the plaintiff has a capacity for suitable employment as submitted by the defendant.  The nature and extent of his pain and suffering consequences are very significant and demonstrate that in his ordinary day-to-day existence, there are very few social, domestic and recreational pursuits which are unaffected by the impact of the impairment of the function of his lower back.  I think that is a very telling factor in weighing up all of the evidence to determine whether he has or has no a capacity for suitable employment.
42	Thirdly, there is an undoubted disparity in the medical evidence relevant to the plaintiff’s capacity for suitable employment.  I prefer the plaintiff’s medical evidence over that of the defendant for a number of reasons.  The plaintiff required significant medical treatment, and continues to require medical treatment by the prescription of painkilling medication.  I was very impressed by the evidence of Dr Gruzauskas, whose account of his observations of the plaintiff and his opinion of the plaintiff’s present capacity to work is that the plaintiff is in a relatively parlous state of health due to the nature and extent of the impairment of function of his lower back.
43	Fourthly, I think Dr Gruzauskas brought an eye for reality into the whole body of evidence relevant to the assessment of the plaintiff’s capacity for suitable employment.  It is very obvious that he is singularly unimpressed by experts called in these cases.  He considered that his experience as a treating medical practitioner put him in a very good position to make an assessment of the plaintiff, and as I have already observed, I found his evidence to be very impressive.
44	Fifthly, whilst the plaintiff may have some residual capacity to return to suitable employment, I do not accept the opinions of Mr Doig and Dr Baynes.  I do not accept that their opinions can overwhelm a stronger, more persuasive body of evidence comprising the treating medical practitioners who treated the plaintiff for a disabling lower back condition nor the evidence of Professor Bittar, Dr Slazenger, and, most importantly, Dr Gruzauskas.
45	The evidence which I accept points to the plaintiff perhaps having a residual capacity for suitable employment consistent with the opinion of Dr Slesenger of 16 hours per week initially, and Dr Gruzauskas, who would recommend a similar initial working regime.  However, it was my impression from the assessment of all of the evidence that it is unlikely that the plaintiff has a residual capacity which would much exceed the hours referred to by Dr Slesenger.
46	The plaintiff and the defendant agreed that the gross earnings which are the basis of the relevant calculations is $87,704.00.  A reduction to 60 per cent of that figure is $52,622.40 per annum, or $1,011.97 gross per week.  The defendant did not argue against the proposition that if I found that the plaintiff is only capable of returning to suitable employment consistently with the hours referred to by Dr Slesenger, then he would easily satisfy the relevant test and be entitled to leave to recover damages for loss of earning capacity consequences.
47	The plaintiff provided me with hourly rates for a despatch clerk and customer service/order clerk in his written submissions dated 29 November 2020.  Applying the hourly rates (the highest being $33.84 gross per hour) demonstrates that the plaintiff easily satisfies the relevant test.
48	Therefore, I find that the plaintiff has satisfied the statutory test relevant to loss of earning capacity consequences.  I have made that finding by making the relevant comparison with like impairments as I am obliged to do.
Orders
49	I will grant the plaintiff leave to bring a proceeding at common law to recover damages for both pain and suffering and loss of earning capacity consequences.
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