Abdi v Kevron Plastics Pty Ltd
[2022] VCC 82
•11 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-02603
| ABDIWAHAB ABDI | Plaintiff |
| v | |
| KEVRON PLASTICS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 February 2022 | |
DATE OF JUDGMENT: | 11 February 2022 | |
CASE MAY BE CITED AS: | Abdi v Kevron Plastics Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 82 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to low back – pecuniary loss damages
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr A Dimsey | Ellis Palmos & Co |
| For the Defendants | Mr M K Clarke | Russell Kennedy |
HER HONOUR:
1Mr Abdi is a thirty-nine-year-old man who suffered an injury to his lower back while working as a process worker at a factory that manufactured plastic tags for key rings. Mr Abdi claims that he suffered this injury over the course of his employment between 2016 and 2019. In particular, Mr Abdi claims that on 9 August 2019, he suffered injury when a chair he had been sitting on wobbled as he was trying to get up from it, causing him severe back and left leg pain. Shortly thereafter, Mr Abdi required surgical treatment composed of a left L4-L5 microdiscectomy and rhizolysis. Mr Abdi attempted a return to part-time alternate duties in December 2019 and January 2020, but as this aggravated his pain, he ceased work and has not worked since. In addition to suffering this low back injury, Mr Abdi also claims to have suffered Anxiety, Depression and an Adjustment Disorder as a consequence of his ongoing pain and inability to work.
2In order for Mr Abdi to be entitled to claim common law damages for his injuries, the impairment to his lower back must satisfy paragraph (a) of the definition of “serious injury” contained in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). In the alternative, Mr Abdi must satisfy me that he suffers a permanent psychiatric disease or disorder which meets the definition of “serious injury” contained in paragraph (c) of the same section of the Act.
3At the commencement of the hearing, the defendants conceded that Mr Abdi suffers serious pain and suffering consequences in respect of his spinal impairment. However, the defendants alleged that Mr Abdi had a capacity to perform suitable light work on a full-time basis and did not suffer the requisite loss of earning capacity. Further, in respect of Mr Abdi’s claimed psychiatric condition, the defendants alleged that as Mr Abdi had only commenced treatment relatively recently, his psychiatric condition was not stable, and could not be considered a permanent impairment.
4Only Mr Abdi was called to give evidence, and he was cross-examined. Also in evidence were medical reports, clinical records and other material. I have read these tendered documents, together with the transcript of the proceedings. I will not refer to all of that material in the course of this judgment, but rather to those aspects of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
5For the reasons that follow, I am satisfied that as a consequence of his spinal impairment, Mr Abdi has a significantly reduced capacity for light work, which at best, he could only do for a limited number of hours each week. Therefore, I am satisfied that Mr Abdi suffers the requisite loss of earning capacity, such that he should be granted leave to commence a common law proceeding claiming both pain and suffering and pecuniary loss damages.
Mr Abdi’s life before his back injury
6Mr Abdi was born in Somalia in 1983 and attended school until Grade 6.
7In 1998, Mr Abdi came to Australia with his father and brothers, and completed school to about Year 10.
8After leaving school, Mr Abdi worked in several roles including as a machine operator at Oats Cleaning, a process worker at a cheese factory and a kitchenhand and dishwasher at a Sofitel Hotel.
9In 2012, Mr Abdi returned to Somalia, and married. Mr Abdi and his wife had a daughter in 2013, however, Mr Abdi’s wife was unable to return to Australia with him. In 2016, Mr Abdi travelled to see his wife in Malaysia, and she thereafter had a son. Their son was unfortunately unwell and passed away in 2019.
10In November 2020, Mr Abdi and his wife separated, and his wife has since returned to Somalia, with their daughter.
Mr Abdi’s work injury
11In August 2010, Mr Abdi commenced work with Kevron Plastics Pty Ltd (“Kevron”) as a machine operator, and subsequently worked in a variety of jobs over his period of employment. From 2013 to about 2019, Mr Abdi’s work mainly involved working on a ringer machine. He said that this work involved him sitting on a chair, leaning forward and using his hands to process tags in a machine. Mr Abdi said that the work involved repetitively twisting to his left and placing more weight on his left buttock.
12Mr Abdi said that in February 2016, he began to suffer some pain and discomfort in his neck, upper back, lower back and left buttock. Mr Abdi said that he consulted his general practitioner and was prescribed medication and had some physiotherapy and massage treatment. Mr Abdi said that he suffered a number of flareups thereafter, and from time to time sought medical and physiotherapy treatment. Mr Abdi continued to work during this period.
13On Friday, 9 August 2019, Mr Abdi said that he went to get up from the chair he had been sitting on at work, and as the chair unexpectantly wobbled, he twisted and felt a sharp pain in his lower back, together with a shooting pain down his left leg.
14Mr Abdi said that over the weekend he continued to have a lot of pain and he could not put much weight on his left leg.
15On 12 August 2019, Mr Abdi attended his workplace, but due to his pain, he could not perform his duties. Mr Abdi thereafter attended on general practitioner, Dr Adil Abughazaleh, at the Cuthbert Medical Centre. Mr Abdi was prescribed medication, referred for an x-ray and advised to have the rest of the week off work.
16In the coming days, Mr Abdi said that his back and left leg pain worsened.
17On 16 August 2019, a CT scan was taken of Mr Abdi’s lumbar spine. It was reported as demonstrating a left paracentral protrusion at L4‑5 and L5‑S1, compressing the left L5 and left S1 nerve roots.
18On 20 August 2019, Mr Abdi was taken by ambulance to the Northern Hospital. At that time, it was noted he was suffering an increase in left leg pain and numbness. An MRI scan was taken of Mr Abdi’s lumbar spine on 21 August 2019 and it was reported as demonstrating a left paracentral disc protrusion and extrusion at L4‑5, with impingement on the descending left L5 nerve root and cauda equina nerve roots, with near complete effacement of CSF signal at that level. An urgent spinal surgical review was recommended.
19Mr Abdi was then transferred by ambulance to St Vincent’s Hospital, and on 23 August 2019, he underwent a left L4‑5 microdiscectomy and rhizolysis. Mr Abdi was subsequently discharged on 25 August 2019, at which time it was noted that his foot drop had resolved post-operatively.
20Mr Abdi said that the operation had relieved the shooting pain that he had experienced down his left leg, but he continued to feel heaviness in his left leg, and numbness in his left calf, in the big and second toes of his left foot, and on the side of his left leg up to his knee. Mr Abdi said he also continued to suffer from low back pain.
21In September 2019, Mr Abdi commenced physiotherapy treatment and he also attended St Vincent’s Hospital for post-operative check‑ups.
22In December 2019, Mr Abdi said that he attempted a return to work, and worked two hours per day, for two to three days per week. He said that work involved him standing at a bench for approximately two hours packing bags into containers and then sealing the containers. Mr Abdi said he could not continue doing that work as he experienced a lot of pain in his lower back, as well as tingling in his left foot and heaviness in his leg.
23Mr Abdi said that he was then given a further two weeks off work and attempted a further return to work in January 2020. Mr Abdi said the same thing happened after a few days, and as his symptoms worsened, he did not continue. Mr Abdi said he has not worked since.
24In February 2020, Mr Abdi was referred to neurosurgeon, Mr Paul D’Urso. Mr D’Urso recommended that Mr Abdi undergo a further MRI scan which was performed on 13 February 2020. It was reported as noting the previous left L4‑5 hemi-laminectomy and hemi-facetectomy. There was no recurrent disc protrusion or extrusion seen.
25Mr D’Urso reviewed Mr Abdi in March 2020 and recommended that he continue with gentle physical exercise and the prescription of some anti-inflammatory and paracetamol medication. Mr D’Urso considered that Mr Abdi would only be fit for part-time light employment and that he could not perform unrestricted bending, twisting or lifting into the future.
26In May 2020, Mr Abdi was referred to pain management specialist, Dr Clayton Thomas. At the time of his first attendance, Dr Thomas noted that Mr Abdi described back pain and left leg pain, with a feeling of heaviness in his left leg, together with numbness. Dr Thomas recommended that Mr Abdi undergo a pain management program with an emphasis on getting him mobilised and off the single point stick that he was continuing to use, with a view to him returning to work.
27Mr Abdi’s commencement in the pain management program at the Dorset Rehabilitation Centre was initially delayed due to the pandemic. However, he ultimately commenced the program in mid-November 2020 and completed it at the end of March 2021. Mr Abdi said part of that program involved receiving treatment from a physiotherapist and psychologist.
28Mr Abdi also said that as part of the pain management program, he was actively encouraged to walk without his stick. In cross-examination, parts of the discharge summary were put to Mr Abdi which indicated that by the end of the program, he was able to walk up to 10 minutes without his stick. Mr Abdi accepted that he tried to do this, but could not recall whether he was able to do so for up to 10 minutes.
29In approximately September 2021, Mr Abdi was referred to psychologist, Dr Michael King. Mr Abdi said that he has attended Dr King for at least six sessions to date.
30In the second half of 2021, Mr Abdi said that he commenced a computer course. He said that he attended four sessions over the phone during the COVID lockdown and has since attended one in person, with another five sessions to go. He said that it is a course to teach him basic skills on a computer, which he said will assist him in applying for jobs. In cross-examination, Mr Abdi also accepted that his computer course may open job opportunities for him which he would be able to perform notwithstanding with his injury.
31Mr Abdi said that he was due to return to see Dr Thomas in December 2021, but his pain was so bad on that particular day that he missed the appointment. Instead, he attended Dr Thomas’ rooms in January 2022. As Dr Thomas was on leave, Mr Abdi was seen by pain specialist, Dr Barry Slon, instead. In a letter dated 17 January 2022, Dr Slon noted that after completing the pain management program, some of Mr Abdi’s function had improved, but his psychological wellbeing had deteriorated. At that time, it was noted that Mr Abdi described back pain, and left leg wasting and numbness.
32Dr Slon noted that on examination, Mr Abdi walked with a stick and experienced difficulty moving his left leg. Dr Slon noted that there was evidence of wasting, although there was full power in the left leg. Dr Slon reported that Mr Abdi complained of difficulties with activities of daily living such as getting dressed and managing his laundry. Dr Slon considered that Mr Abdi’s prospects of recovery and return to function were limited and that it was unlikely there would be significant improvement in his condition at this stage.
33Dr Slon recommended that Mr Abdi cease gabapentin medication and instead use pregabalin (Lyrica), 150 milligrams twice daily. In addition, Dr Slon prescribed Mr Abdi the anti-depressant medication, venlafaxine (Effexor).
34Mr Abdi said that he continues to have weekly physiotherapy with Mr Emre Akgoz at the Glenroy Physiotherapy Centre. In a report from Mr Akgoz dated 12 December 2021, it was noted that Mr Abdi’s current restrictions include a sitting tolerance of less than 20 minutes, a standing tolerance of less than 20 minutes, an inability to perform bending duties or any repetitive or prolonged squatting or crouching movements, being unable to perform twisting and rotation type movements and a lifting capacity of no more than 2 kilograms. Mr Akgoz stated that Mr Abdi has been actively managing his condition with an exercise-based program, including Pilates, hydrotherapy and home exercises.
35Mr Akgoz stated that, in his opinion, Mr Abdi was not expected to make a full recovery from his injury and that he would need to manage his condition for the rest of his life through activity modification strategies, rehabilitation exercises and analgesia.
36Mr Abdi also continues to see his general practitioner, Dr Naveed Mughal, on a regular basis. In a report dated 18 November 2021, Dr Mughal reported that Mr Abdi suffered from tenderness in his lumbar spine with a limited and reduced range of motion, and non-specific sensory loss and weakness in his lower limbs. At that time, Dr Mughal stated that Mr Abdi was prescribed gabapentin, Lyrica, Mobic and Panadol Osteo.
37Dr Mughal was of the opinion that Mr Abdi had the capacity for light duties. At the time Dr Mughal wrote this report, his certificate of capacity for Mr Abdi stated that he could work three to four hours a day, four days a week. It was expressly stated that Mr Abdi would have capacity to work two days, then have one day off and then work two days again. Further, the certificate stated that Mr Abdi was able to engage in training and rehabilitation so as to work in roles including as a despatching and receiving clerk, a parking enforcement officer, and a security officer. However, according to Dr Mughal, Mr Abdi’s restrictions should include avoiding lifting from the ground level, although Dr Mughal considered that Mr Abdi would be able to lift up to 3 kilograms from waist level.
38On 17 January 2022, Dr Mughal issued a further certificate of capacity for Mr Abdi. On this occasion, it stated that he had no capacity for employment for the period from 17 January to 14 February 2022. I note that there is no subsequent report from Dr Mughal to explain the basis for his reduction in Mr Abdi’s work capacity.
39Mr Abdi said that he continues to suffer from pain in his lower back and it feels stiff. In addition, he has a feeling of heaviness in his left leg and numbness in two of his left toes, together with numbness on the outside of his left leg. Mr Abdi said that if he sits or stands for prolonged periods, his back and left leg symptoms worsened.
40Mr Abdi said that he currently takes the following medication: Lyrica (150 milligrams) at night, before he goes to sleep; Mobic (50 milligrams); Osteo-Paracetamol, one tablet, three times daily; and Effexor, one table a day.
41Mr Abdi said that he sleeps with one pillow under his knees and another between his legs. He said that if his pillow comes out in his sleep, he will wake with pain, such that it will have an impact on him the following day. Mr Abdi said on multiple occasions that he has good and bad days, and that he can be a different person from one day to the next, making it difficult to predict how he will be on a given day, as it depends upon how he sleeps the night before.
42Mr Abdi said that he has difficulty with many aspects of domestic tasks. He said that although he can wash his own clothes, he sometimes requires assistance from his housemate if he has increased pain on a particular day.
43Mr Abdi said that when he leaves his home, he carries his walking stick as it provides him with confidence to walk. He said that he carries it in case he gets weakness in his left leg and needs it. Mr Abdi said that when he is at home or in his backyard, he does not carry his walking stick. Later in his evidence, Mr Abdi said that 90 per cent of the time, he does not actually need his walking stick to assist him in walking, but he carries it outside the home as a matter of precaution.
44Mr Abdi said that he does exercises at home, which involve him stretching on the ground. In addition, he goes to the pool and gym, usually two times a week. He said he sometimes does light weights in the gym or goes on the exercise bike, although he said that swimming and doing hydrotherapy exercises help him more.
45Mr Abdi said that he no longer feels safe driving and therefore has sold his car. When cross-examined in relation to this, he said that he does not feel confident driving a car due to his pain, as well as his poor concentration. When he was asked why he could not presently drive an automatic car for 10 minutes, Mr Abdi stated: “Well, I’m not saying I can’t drive always, it’s just like I use my stick, sometimes I hold my stick up and walk confidently, and sometimes I can’t do that.”
46Mr Abdi said that with the assistance of a rehabilitation provider, he has applied for some jobs, such as working as a carpark attendant and labelling boxes in a factory. Mr Abdi said that he thinks he can do these jobs, although he later stated that he was worried about his pain and concentration. Mr Abdi said that if he was given the opportunity to work, he would give it a go as “I cannot know unless I try”.
47In addition to his physical restrictions, Mr Abdi stated that he suffers a lot of stress due to his pain, and he worries about his future. Mr Abdi said that since being prescribed anti-depressant medication two weeks ago, he feels that he has experienced some improvement in his mood.
The Defendants’ proposal of suitable employment roles for Mr Abdi
48In support of its submission that Mr Abdi was able to perform suitable employment, the defendants relied upon a vocational assessment of Mr Abdi conducted by occupational therapist, Ms Emma Stephenson from Nabenet in July 2021. In a report dated 10 August 2021 (the “Nabenet report”), Ms Stephenson detailed Mr Abdi’s history and current status. It was noted that at that time, Mr Abdi reported that his lower back pain and leg pain was aggravated by factors including sitting, laying down and standing for long periods. It was also reported that relieving factors included using pain medication and walking. Ms Stephenson then noted that Mr Abdi had a sitting tolerance of 30 minutes, a static standing tolerance of 20 to 25 minutes, no restriction on walking, a restriction on bending, lifting of up to 2 kilograms, with some difficulties with memory and concentration.
49Ms Stephenson was of the opinion that based upon Mr Abdi’s transferrable skills, employment history, qualifications and medical capacity, he had the following barriers in respect of returning to employment:
· Physical limitations
· Limited transferrable skills
· Limited computer skills; and
· No access to a motor vehicle.
50Ms Stephenson proposed four employment options for Mr Abdi which were within 47.9 kilometres of his home. These were as follows:
(i) A process worker based in Bayswater North
Ms Stephenson stated that the critical physical job demands of this job included constant bilateral hand use, frequent alternating between sitting, standing and walking, and frequent lifting of items of less than 20 grams, and occasional lifting of boxes weighing up to 6 kilograms. Although such a role was not currently available, she stated the wage rate for this job was $24 per hour or $764.94 gross per week. She also stated that another source indicated that the average wage for a process worker was $945 per week.
(ii) A packer labeller based in Broadmeadows
Ms Stephenson stated the physical job demands associated with this role included frequent sitting, occasional lifting and bilateral carrying of up to 10 to 15 kilograms; frequent forward reaching and frequent bilateral upper limb use. Although there was no such current vacancy available, the wage rate for this role was $25.20 per hour, equating to an annual salary of $52,416 gross. However, Ms Stephenson stated that the average full-time annual wage for a packer was up to $69,169 gross, indicating a higher earning capacity for this type of role across different employers in the industry;
(iii) A hire controller/rental officer based at Tullamarine
Ms Stephenson stated the physical demands of this role included frequent sitting and performing office tasks at the front counter, frequent standing and performing car boot tasks, frequent bilateral hand use, an occasional need to drive to and from the car park, and basic computer skills are desired. Although there are no current vacancies with the employer identified, and no wage rates were available, Ms Stephenson considered that a comparable position was “Other Sales Assistant or Salesperson” which has an average gross weekly wage of $1,128 per week;
(iv) A warehouse despatch clerk based in Footscray
The physical requirements of this role include constant sitting, occasional standing and walking, constant bilateral upper limb use for computer and telephone-based tasks. Although there is no such role currently available with the identified employer, the salary for this type of role averages up to $79,038 gross. I note that Ms Stephenson did not state the hourly rate for this role, nor the average salary, but instead identified the maximum income range for this job.
51In addition to the Nabenet report, the defendants relied upon an affidavit of Philip Parton, the managing director of Kevron, sworn 5 January 2022. In his affidavit, Mr Parton stated that there are a number of full-time and part-time roles which Kevron could offer Mr Abdi to assist him in a return to work. Mr Parton then identified a number of such roles which included Mr Abdi’s pre-injury duties making plastic key tags, but with modification; labelling plastic tags; packaging individual plastic tag keys and other roles involved in the manufacture of plastic tags. A video exhibited to Mr Parton’s affidavit showed a demonstration of the tasks associated with such roles.
52Mr Parton then stated that the current Award rate for Mr Abdi’s pre-injury duties is $21.72 gross per hour, although Kevron currently pay other staff performing the same work as Mr Abdi an amount of $25.26 per hour, which is equivalent to $959.88 per week.
Medico-legal evidence
53In August 2021, Mr Abdi was examined by orthopaedic surgeon, Associate Professor Bruce Love. In a report dated 4 August 2021, Professor Love detailed his findings following examination of Mr Abdi. He noted that there was a marginally restricted range of flexion and extension and that on straight leg raising, this was also marginally restricted on his left side. Professor Love noted there was minor weakness of the extensors of Mr Abdi’s left foot and diminished sensation over the lateral aspects of the calf and into the dorsum of his left foot. However, Professor Love was unable to detect any reflex changes.
54Professor Love diagnosed Mr Abdi as suffering symptoms of persistent sciatica consistent with nerve root irritation. Professor Love considered that Mr Abdi’s current back condition was consistent with the history of injury and the nature of his employment.
55Professor Love considered that Mr Abdi’s capacity for employment was severely compromised. He stated that if he was able to return to employment, it would necessarily have to be in a position where Mr Abdi can choose his posture and he would require an understanding employer as to the history of his condition. Professor Love stated that if Mr Abdi was able to return to work, it would need to be in alternative duties and his hours would initially need to be significantly restricted with an anticipation of a graded increase in hours. However, Professor Love noted that as it has been two years since his surgery, he did not anticipate there would be a significant change in Mr Abdi’s condition in the foreseeable future.
56In a subsequent report dated 20 January 2022, Professor Love reiterated that Mr Abdi will always face work restrictions which avoid repeated bending, stooping, lifting and walking distances. It was also noted that Mr Abdi would always need to be free to choose his posture at work. Professor Love considered that Mr Abdi may be able to perform the jobs identified by Mr Parton, provided such restrictions were met. Professor Love stated that any return to work would need to be on a trial of a part-time basis, progressing to full-time work. However, Professor Love stated it was not possible to specify the maximum number of hours that Mr Abdi would be able to work.
57In addition, Professor Love was asked to comment upon jobs identified in the Nabenet report. Professor Love stated that although all four jobs could be considered suitable employment, such employment would be subject to the previous mentioned restrictions. Professor Love also commented that employment options such as those mentioned above, can have highly variable physical requirements.
58In November 2021, Mr Abdi was examined by occupational physician, Dr James Chan. In a report dated 23 November 2021, Dr Chan detailed the complaints which Mr Abdi made, including pain and stiffness in his lower back on wakening at a level of 3 to 4 out of 10, and that it can increase to 6 to 7 out of 10 with certain activities. It was also noted that Mr Abdi reported a heavy sensation in his left leg and that such pain is worse in winter, when the weather is colder.
59Dr Chan examined Mr Abdi and reviewed the medical imaging. Dr Chan then stated that, in his opinion, Mr Abdi had suffered an L4‑5 disc protrusion which had been surgically treated and that he subsequently had developed a secondary Chronic Pain Syndrome affecting his lower back and legs. Dr Chan then stated that, in his opinion, Mr Abdi required the following restrictions:
· no lifting of more than 2 kilograms above waist level
· no sitting for more than 20 to 25 minutes without changing posture
· standing for about 20 minutes before needing to sit again
· can walk for a maximum of one hour on flat, even ground, but then needs to sit for 15 to 20 minutes to ease his pain and discomfort
· no repetitive steps or stairs
· cannot drive.
60Accordingly, Dr Chan stated that Mr Abdi would need to avoid work which involved manual handling and lifting. In the event he was to undertake sedentary-type work, he would need to be able to vary his posture as per his physical tolerances.
61Dr Chan stated that as Mr Abdi had not worked for over two years, in attempting any suitable return-to-work duties, he would need to commence at four hours per day for two to three days per week, and then, depending upon how he coped, he may be able to increase those hours.
62Dr Chan considered the vocational options recommended in the Nabenet report. Dr Chan stated that Mr Abdi is unable to perform all the duties of a process worker as the job description included lifting boxes of up to 6 kilograms. In relation to the job of a packer, again, that was unsuitable as it can include weights beyond Mr Abdi’s physical tolerances. In relation to the job of hire controller\rental officer, Dr Chan stated that although Mr Abdi would be able to physically perform work behind a desk, he would be unable to move the cars if required, as he feels unsafe driving. Finally, in relation to the position of warehouse despatch clerk, Dr Chan considered this was within Mr Abdi’s physical tolerances. If such a position was available, Dr Chan stated that Mr Abdi would be capable of working for four hours, two to three days per week, with restrictions within his physical tolerances.
63Dr Chan noted, however, that it was unclear as to whether Mr Abdi will be able to “reliably perform the work” as he has had no such trial.
64In a supplementary report dated 21 January 2022, Dr Chan considered the jobs identified by Mr Parton. Dr Chan considered that of the four jobs suggested, two of them may be possible, with modifications at reduced hours, and that depending upon how well he coped, he may be able to increase such hours.
65In July 2021, Mr Abdi was examined by orthopaedic surgeon, Mr Michael Dooley. In a report dated 7 July 2021, Mr Dooley detailed Mr Abdi’s history and presenting complaints. Mr Dooley noted that Mr Abdi stated that he suffered constant, ongoing lower back pain and left lower limb pain. It was then noted that Mr Abdi stated that he was able to walk slowly and steadily for up to one hour and that he was unable to sit for more than 30 minutes.
66Mr Dooley noted that on his attendance, Mr Abdi walked slowly with a pronounced antalgic gait and that he used a single point stick in his right hand. When this was put to Mr Abdi on cross-examination, he could not recall the specific examination with Mr Dooley but said that his pain levels were different every day, and that whether or not he has a limp on a given day depends on how he wakes up.
67On physical examination, Mr Dooley noted that there was a mild reduction in power in Mr Abdi’s left foot and ankle, but there was no obvious wasting of the left lower limb. Further, he noted some reduced sensation over the lateral aspect of Mr Abdi’s left leg and over the dorsum of his left foot.
68Mr Dooley stated that in his opinion, Mr Abdi is unable to attend to his pre-injury work or to do any work which involves heavy physical activity, or a lot of bending, lifting and manoeuvring. However, Mr Dooley was of the opinion that Mr Abdi had a physical capacity to carry out light physical work and clerical-type work. Mr Dooley said such a return to work would need to occur on a graduated basis.
69In July 2021, Mr Abdi was examined by occupational physician, Dr Mary Wyatt, via Telehealth. In a report dated 30 July 2021, Dr Wyatt noted Mr Abdi’s history, including his attempts to return to work and the subsequent computer course that he was to undertake. Dr Wyatt then noted that Mr Abdi detailed to her the pain he suffered in his lower back and into his left leg and that his pain would ease with a long walk. Dr Wyatt noted that Mr Abdi stated that he typically went for a long walk during the day and also does exercises for 10 to 15 minutes. It was then noted that after watching the news, he would go for another walk outside and would do that for up to three times a day. In addition, Mr Abdi was attending physiotherapy twice a week.
70Dr Wyatt was of the opinion that as Mr Abdi’s pre-injury duties required sitting, it was not recommended that he returned to such duties. Dr Wyatt considered that Mr Abdi was fit for work but needed to avoid repetitive deep bending and repeated twisting of the spine. She stated that he should be able to change position intermittently and alternate between sitting and standing positions and not do regular lifting of over 5 kilograms. She considered that Mr Abdi was fit for a range of lighter machine operator roles or light packing duties. Dr Wyatt then stated that she considered it may be more successful for him to work 30 hours per week than full-time, particularly in the early stages of returning to work.
71In a supplementary report dated 26 January 2022, Dr Wyatt commented on the suitability of the jobs outlined in the Nabenet report. Dr Wyatt considered Mr Abdi was capable of performing each of them, provided they were within a reasonable distance from his home. In terms of hours of work, Dr Wyatt stated that she believed commencing at between 20 to 30 hours a week was realistic. She stated that none of the jobs were physically taxing and that working longer hours was not going to do any harm, although may cause “some increased soreness, particularly in the first few weeks in re-engaging with work after a lengthy absence from the workforce”. Ultimately, Dr Wyatt was of the opinion that Mr Abdi was able to manage all four roles on a full-time basis, although she recommended that he initially commence part-time hours.
72In relation to the jobs outlined by Mr Parton in his affidavit, Dr Wyatt stated that they were on the whole light and would be generally suitable for Mr Abdi; however, stated that he should not be lifting 11 to 15-kilogram weights and could not sit on a non-ergonomic chair.
Credibility
73I considered Mr Abdi to be a mostly credible witness. He gave evidence in a simple manner and made appropriate concessions, particularly in relation to his capacity for work. When asked in cross-examination whether he is capable of working, Mr Abdi said that he did not know, as he has not tried to work, and that his capacity for work would be determined by what type of work he undertook.
74Video surveillance was shown of Mr Abdi walking in an unrestricted manner on two occasions in June 2021. On both occasions, Mr Abdi was carrying his walking stick, but did not use it to assist him in walking.
75The defendants urged me to find adversely in respect of Mr Abdi’s credit in respect of his ability to walk without his walking stick, submitting that there was a stark contrast between the surveillance footage of Mr Abdi walking and Mr Abdi’s various accounts throughout his evidence as to the degree to which he relies on the walking stick. Initially, Mr Abdi said that he would be unable to walk outside his home without a stick, but later conceded that although he carries the stick when outside his home, 90 per cent of the time he does not actually use it.
76I do not consider that the surveillance was inconsistent with Mr Abdi’s evidence that he has good days and bad days, nor inconsistent with his evidence that he takes the walking stick with him almost everywhere, but that he does not always have to use it: “I always have it in my hand, even if I can walk properly that day.” Additionally, Mr Abdi told Dr Wyatt that he goes on long walks to help ease his pain, and this was also consistent with what he was seen doing in the surveillance footage.
77Mr Abdi’s account of difficulties with activities of daily living and being unable to drive due to unpredictable pain and difficulties with concentration, was credible in the context of a person who has a significant spinal injury, a chronic pain condition and associated depression.
Mr Abdi’s claim for loss of earning capacity
78To succeed in his claim for loss of earning capacity, pursuant to s325(e)(i) of the Act, Mr Abdi must establish that he has a loss of earning capacity at the date of the hearing of 40 per cent or more. Further, he must establish, pursuant to s325(e)(ii) of the Act, that he will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
79In determining Mr Abdi’s claim for loss of earning capacity, I must compare what he is currently earning, or capable of earning in suitable employment, with his “without injury” earning capacity.
80Mr Abdi’s “without injury” earning capacity was agreed by the parties to be $960 per week. Therefore, in order for Mr Abdi to succeed in his claim, he must satisfy me that he is incapable of earning more than 60 per cent of that sum in suitable employment; that is, no more than $576 per week.
81Save for two unsuccessful attempts in December 2019 and January 2020 to perform light duties for 2 hours per day two to three times per week, Mr Abdi’s capacity for work is untested.
82Dr Mughal is presently certifying Mr Abdi as having no capacity for work, but in September 2021, was of the opinion that Mr Abdi had capacity to do restricted duties for 3 to 4 hours per day, four days per week, totalling a maximum of 16 hours per week. I note that Dr Mughal expressly stated that this would allow Mr Abdi to have a rest day, after two days of working 3 to 4 hours. Such work would need to avoid lifting from the ground and lifting more than 3 kilograms from waist level.
83Dr Chan was of the opinion that Mr Abdi needs to avoid jobs which require manual handling and lifting, and he would need to be able to vary his posture as per his physical tolerances. Dr Chan considered that Mr Abdi could perform the role of warehouse despatch clerk as identified in the Nabenet report, and two of the jobs described in the affidavit of Mr Parton. As Dr Chan did not explain how Mr Abdi could work as a warehouse despatch clerk given his very limited sitting tolerance (which Dr Chan had noted in his first report), I am not assisted by this aspect of his report. In respect of the number of hours to work in such roles, Dr Chan stated that Mr Abdi could return to work up for up to 12 hours. However, Dr Chan expressly noted that his capacity was such work was untested and it was unclear whether Mr Abdi could reliably perform such work. Dr Chan’s reservations as to Mr Abdi’s capacity to increase his working hours beyond that seem consistent with Mr Abdi’s report of his pain being aggravated by prolonged sitting and standing, and his pain levels from day to day being unpredictable.
84Professor Love stated that Mr Abdi would be able to undertake alternative duties which avoid repeated bending, stooping, lifting and walking distances. In addition, he stated Mr Abdi would always need to be free to choose his posture at work. Professor Love considered Mr Abdi’s hours of work should initially be significantly restricted with an anticipation of a graded increase in hours. In his subsequent report, Professor Love added that Mr Abdi would need to trial working part time, and was unable to specify a maximum number of hours that he considered Mr Abdi would be able to work in light duties.
85Mr Dooley stated that Mr Abdi could only perform light work, which did not involve heavy physical activity, or a lot of bending, lifting and manoeuvring. Mr Dooley was silent on the number of hours Mr Abdi could perform work, but I consider it significant that he, too, recommended that a return to work be on a graduated basis.
86According to Dr Wyatt, Mr Abdi would be suitable for a role that avoids repeated deep bending and repeated twisting to a maximum of 30 hours per week. In her subsequent report, Dr Wyatt was confident that Mr Abdi could readily increase from part-time hours to full-time hours in the light work roles identified by Nabenet and Mr Parton. However, I note that Dr Wyatt stated that Mr Abdi was unfit to perform his pre-injury job as it required sitting, yet she stated that he could work as a warehouse despatch clerk, despite its physical requirements of constant sitting.
87Given the numerous work restrictions identified by the doctors, I have reservations as to whether any of the jobs identified by Nabenet are suitable.
88I accept Mr Abdi’s evidence that his pain is unpredictable and is influenced by how he slept the night before. I accept Mr Abdi’s evidence that he has good days and bad days and that he experiences significant limitations in respect of how long he is able to tolerate sitting and standing. Further, I am satisfied that his pain and pain medication have an impact on his concentration.
89If I were to accept the suitability of the roles proposed by the defendants, as identified in both the Nabenet report and Mr Parton’s affidavit, I consider that there is a real prospect that Mr Abdi’s unpredictable pain will prevent him undertaking any such work on a consistent and reliable basis. For this reason alone, it may be that Mr Abdi has a permanent incapacity for all work.
90At most, I am satisfied that Mr Abdi has the capacity to work in suitable employment for no more than 3 to 4 hours, up to four days a week, providing for a rest day in the middle of the week. I consider that such a capacity for suitable employment on a restricted number of hours each week is relatively consistent with the opinions and reservations of Dr Mughal, Dr Chan, Professor Love and Mr Dooley.
91My finding that Mr Abdi’s work capacity is limited to 12 to 16 hours per week is inconsistent with the opinion of Dr Wyatt. However, I consider Dr Wyatt’s opinion in respect of Mr Abdi’s work capacity is unrealistically optimistic, and against the weight of the evidence.
92The wage rates contained in the Nabenet report were of limited assistance. Only the roles of process worker and packer/labeller had an hourly wage rate. I am not assisted by the wage information for full-time average wages or maximum wages in circumstances where I am not satisfied Mr Abdi has the capacity for full-time work.
93As was noted by the Court of Appeal in Yirga-Denbu v Victorian WorkCover Authority,[1] the test under s325(2)(g) of the Act, “is a gateway provision, which does not require an assessment of loss of earning capacity as in a claim for damages”.[2] In considering all of the evidence in this case, I am satisfied that Mr Abdi is incapable of earning $576 per week and presently suffers the requisite 40 per cent loss.
[1] [2018] VSCA 35
[2] at paragraph [78]
94Further, it has been well over two years since his surgery, and all of the doctors consider Mr Abdi’s condition stable, with no prospect of marked improvement. Together with the longevity of his complaints of pain, I am also satisfied that this pecuniary loss to Mr Abdi is permanent and will continue through the foreseeable future.
95Once the threshold of 40 per cent reduction in the earning capacity test has been met, it is still necessary for me to consider whether the consequences to Mr Abdi meet the “very considerable” test.[3] Given my acceptance that Mr Abdi’s spinal impairment restricts him to working, at best, a maximum of 12 to 16 hours per week in suitable employment, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as “very considerable”.
[3] Section 325(2)(c) of the Act
Psychiatric impairment
96In circumstances where I am granting leave to Mr Abdi to seek common law damages under both heads for his low back injury, it is not necessary for me to separately consider whether his claim for psychiatric impairment is stable and if so, meets the threshold.
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