Anderson v Victorian WorkCover Authority
[2022] VCC 90
•14 February 2022
| IN THE COUNTY COURT OF VICTORIA AT GEELONG VIA ZOOM COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-02347
| DEREK ANDERSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Geelong via Zoom | |
DATES OF HEARING: | 7 and 8 February 2022 | |
DATE OF JUDGMENT: | 14 February 2022 | |
CASE MAY BE CITED AS: | Anderson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 90 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – loss of earning capacity consequences – injury to the lumbar spine
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188
Judgment: Leave granted to the plaintiff to commence a proceeding for pain and suffering and loss of earning capacity damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Mr A Saunders | Arnold Dallas McPherson |
| For the Defendant | Mr S Smith QC with Ms J Clark | Wisewould Mahony |
HIS HONOUR:
1This is a “serious injury” application brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act”) by the plaintiff, Mr Derek Anderson, in which he seeks the leave of the Court to commence a common law proceeding for pain and suffering and loss of earning capacity damages.
2The plaintiff relies upon injury to the spine as the “serious injury”.
3The relevant legal principles are well-known and are not in dispute.
4At the commencement of the proceeding, the defendant, through its Senior Counsel, indicated that the defendant accepted that the plaintiff had suffered a compensable injury to his spine, and it also accepted that the injury produced “very considerable” pain and suffering consequences.[1] The issue in dispute was confined to whether the plaintiff established an entitlement for leave to commence a proceeding for loss of earnings damages.
[1] Transcript (“T”) 1, Line (“L”) 16-18
5In order to establish an entitlement for leave to commence a proceeding for loss of earnings damages, the plaintiff must first establish that the loss of earning capacity consequences from compensable injury, when judged by comparison with other cases in the range of possible of impairments or losses of a body function, are fairly described as being more than significant or marked, and at least very considerable, as per the narrative test set out in s325(2)(b) and (c) of the Act.
6Pausing here, I will shortly set out the plaintiff’s background and employment history but in this proceeding the defendant also accepts that the plaintiff cannot return to his pre‑injury employment and so in my view that constitutes a “very considerable” consequence to him, and the narrative test is satisfied.
7Next, upon establishing “very considerable” loss of earning capacity consequences, he must then satisfy the statutory formula as contained in s325(2)(e) and (f) and (g) of the Act, namely, whether or not he has a loss of earning capacity of 40 per cent of gross earnings measured as set out in s325(2)(f) and will permanently have a loss of earning capacity which will be productive of financial loss of 40 per cent or more of his gross earnings as required by s325(2)(e)(ii). It is this aspect of the proceeding that is contested.
8To satisfy the statutory formula, the measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury earnings”); and
(b) the gross income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earnings”).[2]
[2]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraph [70]
9Finally, by way of preliminary matters, the plaintiff put his case on the basis that “after injury” he now has no capacity at all for suitable employment. Notwithstanding the certification from treating practitioners that he had a residual capacity for at least part time employment, the plaintiff submitted that whilst he might have some theoretical residual capacity for employment, at a practical level he had no reliable capacity for “suitable employment” considering his work history and also due to the unpredictable nature of his back pain.[3]
[3] T57, L27-28
Background
10The plaintiff’s background and employment history are set out in his first affidavit[4] and is not in dispute. He was born in Norway, migrated to Australia with his family at age five and finished school at year 9 level. He is now 53 years old, living with his fiancé near Geelong. He has adult children. His working life has been spent in unskilled manual employment.[5] He gave credible oral evidence of his very limited computer skills.[6] The thrust of his evidence was that he has relied on selling his labour to earn a living.
[4]Affidavit of plaintiff sworn 29 January 2021, Plaintiff’s Court Book (“PCB”) page 10
[5] PCB 46
[6] T40, L3-29
11In approximately March 2019, the plaintiff was performing manual work associated with the production and harvesting of grape vines for Bannockburn Vineyards Pty Ltd, when he developed low back pain and referred pain through the left buttock and leg. He attended his general practitioner, Dr Neha Gupta, and was referred for radiology of his spine. A CT scan of the lumbar spine was performed on 19 March 2019 and reported as demonstrating moderate central canal narrowing at L4-L5, due to a shallow broad based disc protrusion.[7] Thereafter, he has had ongoing conservative treatment which in more recent times has been with Dr Ganes Kunjidapaadhum. The plaintiff has also been referred for physiotherapy with Ms Meghan Dean, physiotherapist at Pain Matrix in Warne Ponds. He has also had a review with a pain specialist. His ongoing treatment has been home based exercises, after the cessation of formal physiotherapy. In addition, he continues to use strong painkilling medication, including approximately 20 Oxycodone tablets per month.[8] The medication is prescribed by his general practitioner.
[7]PCB 22
[8] T38, L17-20
12In his affidavits the plaintiff describes ongoing back pain and restriction for day-to-day activity. There was no real challenge to the plaintiff during his oral evidence as to the pain and suffering consequences as set out in his affidavits and I accept that evidence.
13Of course, pain and suffering consequences are different to loss of earnings consequences, but by the same token, for a manual worker the described consequences such as difficulty sitting or standing[9] also translate to similar restrictions for employment.
[9]Second affidavit of plaintiff sworn 6 February 2022 at PCB 19
14After suffering injury, the plaintiff was off work for a period. There was then an attempt at a return to work on modified duties and reduced hours between approximately August-December 2019. The plaintiff described in his oral evidence how during the return to work he was unable to achieve the hours that he was being certified as fit to perform.[10] He also described how he was in pain after attempting modified duties at the vineyard and that was why he was unable to complete those modified duties.[11] He also said that despite his physiotherapist certifying him for 24 hours of modified duties, he never worked the 24 hours. Despite cross-examination by the defendant about matters relevant to the return to work at the vineyard, the defendant did not produce any direct evidence of that return to work. Broadly, the plaintiff struck me as a reliable witness, and I accept his evidence. This is not a case in which I consider his credit to be an issue.
[10] T21, L12-16; T22, L1-3
[11] T23, L17-18
15Apart from the attempt at modified duties with his pre‑injury employer, the plaintiff has essentially been off work. His father has an involvement in a brick cleaning business and through that connection he purchased a high-pressure brick cleaning machine, registered a business name, and had a short attempt at undertaking that type of work. He described in his oral evidence how because of back pain he was unable to cope with that work,[12] consistent with what he said in his first affidavit.[13]
[12] T34
[13]PCB 16 at paragraph 27
Work capacity – the evidence in medical reports
16As mentioned, Dr Kunjidapaadhum is the plaintiff’s current treating general practitioner. He has provided medical reports regarding the plaintiff, the most recent of which is dated 29 January 2022.[14] In that report he said that the plaintiff “is precluded from doing any job involving bending/squatting, lifting weights >10kg” and that the plaintiff:
“is suitable for light duties & up to a maximum of 24 hrs/week at this stage. As mentioned earlier, I would recommend a comprehensive assessment by an Occupational physician for his job capacity and further recommendations.”[15]
[14]PCB 38
[15]PCB 38
17The defendant tendered two recent medical certificates from Dr Kunjidapaadhum.[16] Those certificates certify the plaintiff as fit for 24 hours of work per week, with physical restrictions as set out in the certificates, including sit, stand, bend and squat with modifications and that there is a lifting tolerance of 18 kg maximum (infrequently)[17] and to avoid prolonged/repetitive bending activities. In other words, the current certification is for 24 hours per week of “light work”.
[16] Defendant’s Amended Court Book (“DACB”) pages 90-93
[17] Which curiously is greater than the restriction in his medical report as already noted
18The treating physiotherapist, Ms Meghan Dean, has also provided reports. In a report dated 2 June 2020[18] she said the plaintiff had a capacity for full time work “in a light/sedentary role” and placed restrictions on such work including a preclusion for sustained flexed or stooped postures, prolonged or repetitive squatting and for any heavy lifting (>15kg).[19] Then in her most recent report dated 2 December 2021[20] she said:
“I believe Mr Anderson has a capacity for suitable employment in a light manual role. That said I expect he will experience difficulty encountering such a role due to the combined effect of age (Mr Anderson is 53), limited work experience aside from manual/labouring roles and the current COVID-affected job climate.”[21]
[18] PCB 26
[19] PCB 26-27
[20]PCB 28
[21]PCB 28
19Associate Professor Michael Vagg is the consultant physician in rehabilitation and pain medicine who assessed the plaintiff as part of the ongoing conservative treatment. In a letter dated 2 December 2021,[22] Dr Vagg noted the ongoing prescription of Endone, which the plaintiff explained in his oral evidence has now been replaced by Oxycodone. Dr Vagg’s brief letter does not otherwise add anything to a discussion about the plaintiff’s current “after injury” work capacity.
[22]PCB 36
20Dr Hazem Akil is a neurosurgeon who examined the plaintiff for medico-legal purposes at the request of his solicitors and provided a report dated 6 April 2021.[23] In that report he describes the plaintiff complaining of ongoing lower back pain extending into the left lower leg. He diagnosed an aggravation of lumbar spondylosis and described the prognosis as guarded. He made treatment recommendations including a suggestion that the plaintiff see an interventional pain specialist for consideration of further investigations. Relevantly to work capacity, Dr Akil said:
[23]PCB 30
“Work Capacity
In my opinion and given the constant symptoms that he is complaining of, I do not believe that he is able to return to his pre-injury duties.
In theory he can do a desk based job where he can alternate between sitting and standing, however Mr Anderson is a man in his 50s who reached year 10 at school and who lives quite far from the main city centre. These things should be taken into consideration for finding alternative employment for him.”[24]
[24]PCB 33
21The plaintiff also tendered two reports from Ms Katrine Green, being vocational assessments dated 2 February 2022[25] and 7 February 2022, together with a copy of Ms Green’s curriculum vitae. When the matter commenced, the defendant objected with some force to Ms Green’s reports being accepted into evidence. The defendant submitted that Ms Green did not in her reports set out sufficient qualification to enable her to express expert opinion regarding the plaintiff’s “after injury” work capacity. Further, the defendant submitted that Ms Green did not provide in her reports an adequate path of reasoning for the opinions expressed by her. Ultimately, I ruled that the plaintiff could rely upon the reports from Ms Green, but in light of a number of valid criticisms made by the defendant regarding her reports, particularly in respect to the lack of a proper path of reasoning, I attach little weight to her opinions. Much of her reports set out conclusions without a proper factual basis, are arguably beyond her expertise and venture into the field of advocacy.
[25]PCB 42
22The plaintiff also tendered medical reports[26] from Dr Anthony Menz, an orthopaedic surgeon who examined the plaintiff and reported at the request of the defendant. In a report dated 5 August 2019, Dr Menz diagnosed a work-related soft tissue injury and possibly some aggravation of degenerative changes at L4/5 and L5/S1.[27] At that stage he opined that the plaintiff had no capacity for work. In a further report dated 1 February 2021,[28] Dr Menz again stated that the plaintiff had no work capacity. He said:
“This man has not worked since the injury some two years ago and it appears as though his back symptoms are getting worse with time. As such, the prognosis for improvement appears to be poor at this stage and one must have serious concerns about whether he will ever return to any form of work duties.”[29]
[26] Exhibit P2
[27]DACB 11
[28]DCB 15
[29]DCB 19
23Further, Dr Menz recommended review with a spinal surgeon to consider whether a spinal fusion at the L4/5 level may be appropriate. Then, in a third report dated 30 June 2021,[30] Dr Menz was provided with some further material and asked questions regarding work capacity and identified job options. He answered those questions in a broad manner and said:
“I believe it would now be certainly worthwhile testing Mr Anderson’s physical abilities and so I would agree with the recommendations for job options as outlined in Dr Barnes’ [sic] report.”[31]
[30]DCB 21
[31]DCB 21
24The defendant then tendered medical reports from Dr Michael Baynes, an occupational physician who examined the plaintiff and provided reports at the request of the defendant. The first report is dated 13 April 2021. In that report he described the plaintiff as suffering from a chronic pain syndrome associated with chronic lower back pain more to the left side, with some radiation to the left upper leg in association with degenerative change in the lower lumbar spine and particularly a broad disc bulge at L4/5. He noted that the plaintiff had mainly worked in manual and physical roles over the years and had good language capacity but no real computer literacy. In respect to a specific question regarding occupational restrictions, Dr Baynes said:
“3.Please describe in point form the occupational restrictions that the plaintiff’s physical injury causes, as to particular:
a. body functions (e.g. can’t lift arm above shoulder height);
b. Weights (e.g. can lift up to 5kgs);
c. Repetition (e.g. can lift with reasonable repetition in accordance with the above restrictions);
d. Duration (e.g. should be able to perform activity in line with the above restrictions for 5 hours per day, 4 days per week).
Mr Anderson is fit for alternative duties where there is no lifting greater than 1.5kg and no repetitive lifting greater than 8kgs with only limited lifting from below knee height or above shoulder height. He should be able to rotate postures between sitting, standing and walking. A return to work on a limited hours basis working 20 hours a week on alternative days with a progressive increase in hours would be appropriate.”
4.In light of these restrictions, can you identify areas of work or specific occupations that might be suitable – please give as much detail as possible, explaining why you consider that the plaintiff might be able to perform them.
I believe that he would be fit to work as a light picker or packer and as a console operator or gatehouse operator. He would be fit to work as a sales representative and in customer service and light handyman roles.”[32]
[32]DACB 26 and 27
25In a further report dated 27 August 2021, Dr Baynes was asked to provide a supplementary report considering a suitable employment assessment that was provided to him. He repeated his earlier opinion regarding physical restrictions and then said:
“The report reviewed six worksite roles including retail sales assistant, console operator at a service station, a production team member, packer/labeller, warehouse dispatch clerk and weighbridge operator. I believe these roles would be appropriate for Mr Anderson and fit within the above physical restrictions both in terms of manual handling and postures required.”[33]
[33]DACB 30
26Dr Baynes was then asked to review the plaintiff and provide a further report, which he did on 7 December 2021.[34] In that report he set out his examination findings and recorded the progress history since the plaintiff was last seen by him. He repeated his opinion regarding diagnosis and described that there had not been any significant change since the previous examination in April 2021. He was then asked specific questions regarding work capacity which he answered as follows:
[34]DACB 32
“1.In your previous report you opined that the worker had a safe physical capacity to undertake work within specified physical conditions and constraints. Following your re-examination of the worker, are you still of that opinion?
I am still of the opinion that Mr Anderson is fit for alternative duties. However, based on the history, I believe that he has a bigger restriction in terms of weights to be handled noting that whilst he can lift a slab of beer weighing around 13kg, he does this with some difficulty. In practice, I believe that he would be limited to lifting around 5kg, not lifting from below knee height or above shoulder height with only occasional lifting up to 10kgs. He would need to rotate postures between sitting, standing and walking. A return to work working around 20 hours per week working alternative days would be appropriate.
2.We have attached a Suitable Employment Report from Felicity Barras dated 5/5/2021. Do you believe the worker has the physical capacity to undertake the duties involved in the attached job descriptions?
I note the Suitable Employment report from 5/5/2021 identified several employment options and worksite assessments including retail sales assistant, console operator and production team member. I do not believe that the retail sales assistant role would be appropriate due to the limitation in terms of sitting noting that most of the time is spent standing and walking. The occasional lifting at 10kg at waist height would be appropriate and stock less than 5kg would be appropriate.
Work as a console operator at a petrol station would also not be appropriate due to again the requirement to undertake mainly standing and walking with only the occasional ability to sit. I also have concerns over restocking of the supplies in the petrol station, e.g. particularly restocking drink fridges which requires a lot of bending and lifting.
Work as a production team member at the Carbon Factory Plant again requires constant standing and walking which I do not believe would be appropriate. Weights handled are light which would be appropriate.
The Nabenet supplementary report dated 29/6/2021 reviewed several further work options. I note the packer labeller role in a pet food manufacturing plant involves frequent sitting but handling bags up to 10kg and large label rolls of around 5kg. Boxes of foil bags could weigh up to 15kg but with assistance provided lifting heavy items. Again, overall, I do not believe that this role would be appropriate due to the heavy lifting and continuous sitting.
The Warehouse dispatch clerk, which includes customer services and data entry and order follow-ups, would be appropriate noting that this requires constant sitting but with the ability to occasionally stand and walk. I believe that this role would be appropriate and note that there are no heavy lifting requirements.
The Weighbridge Operator role involves managing reception at the quarry including meet and greet of visitors, ticketing and scheduling incoming and outgoing trucks, preparing and processing transactions via computer and speaking with truck drivers at a service window. There is the ability to rotate between sitting and standing and walking between offices and when doing inductions. I believe that this role would be appropriate with the ability to rotate postures and note that there are no heavy lifting requirements.
3.Please confirm the worker’s capacity to perform each of the tasks outlined in the jobs described in the Nabenet report.
Mr Anderson advises that he does not have a capacity to undertake any of the above roles.
4.Would the worker require any special flexibility or accommodation to perform the tasks of the job?
Mr Anderson would require flexibility in terms of work tasks where he could rotate postures between sitting, standing and walking which is unlikely to be appropriate in some of above tasks.”[35]
[35]DACB 34 and 35
27Dr Baynes was then requested to provide yet another supplementary report which he did on 31 January 2022.[36] Relevantly he was asked a question about hours of work the plaintiff would likely have after a period of work hardening and said:
“A period of work hardening would increase his general work fitness and allow him to progressively increase his hours up to at least 30 hours per week over a 3-4 month period.”[37]
[36]DACB 37
[37]DACB 38
28Finally, the defendant tendered a suitable employment report dated 29 June 2021[38] prepared by Ms Felicity Barras, occupational therapist, employed by Nabenet Integrated Workplace Health Services. In my view, having read her report, her opinions expressed in those reports run dangerously close to suffering the same vice as the opinions set out in the reports from Katrine Green. I accept that in her report she has tried to identify and discuss “a real job”, rather than a simple broad discussion about a type of job. I also accept that her report has been considered by Dr Baynes and that he is a specialist occupational physician. In those circumstances, as colourfully submitted by Senior Counsel for the defendant, I accept that there has been some effort to “line the ducks up”.[39]
[38] DACB 50
[39] T51, L5
Analysis
29The starting point is that it is the plaintiff who has the onus to demonstrate the requisite loss of earning capacity.
30I must also consider the whole of the evidence in deciding this proceeding.
31To use the colloquial, there is uniformity in the medical evidence that the plaintiff has suffered an injury to his lumbar spine and that he now has a “light work back”.
32Most of the medical evidence is that the “after injury” work capacity is for part time hours of such “light work.
33His without injury earnings were $42,167 gross for the financial year ended 30 June 2019. Sixty per centum of that figure is $25,300.20, or $486.54 gross per week.
34The defendant relied on jobs identified in Ms Barras’ report and as discussed by Dr Baynes, as evidence of current “suitable employment”. I note that despite Ms Barras nominating several jobs that she thought were now “suitable employment” Dr Baynes did not share her enthusiasm for several of the nominated jobs and he only endorsed the identified jobs of warehouse despatch clerk and weighbridge operator as within the current physical capacity of the plaintiff[40] and subject to the physical restrictions set out in his last report.[41] He also sensibly noted that even in the jobs approved by him, the plaintiff would require flexibility to rotate posture and would also require further on the job training, in particular for necessary computer skills associated with data entry.[42]
[40] DACB 34-35
[41] DACB 37
[42] DACB 35
35In final submission, Senior Counsel for the defendant said that for the plaintiff to succeed I would have to reject the evidence of all medical practitioners and prefer the plaintiff’s own estimation of his work capacity. That, it was further submitted, would be a highly unorthodox approach and if the proceeding could simply be resolved on what the plaintiff said about his capacity for work is, then the need for medical opinion would be otiose.[43] For the reasons that follow I disagree with that submission.
[43] T48, L13-24
36Firstly, as noted, I must consider the whole of the evidence. There is nothing unorthodox about that approach. Perhaps unlike the medico-legal examiners, I have the benefit of all the evidence upon which the parties rely. I also have the benefit of assessing the evidence of the plaintiff when in the witness box, remembering that the credit of the plaintiff is an important factor in the assessment of the “seriousness” of the consequences to him.
37Secondly, in this proceeding the plaintiff’s own evidence is broadly consistent with what the doctors say, namely that he cannot now undertake unrestricted manual work and that he has restrictions for “light work”. He did attempt a return to work on modified duties at the vineyard and he also attempted work with the pressure washer. I reject the submission that the plaintiff has failed to make any reasonable attempt at modified duties. In fact, the true picture is quite the opposite, he has attempted modified duties and has failed in that attempt.
38Thirdly, all the medical practitioners place significant physical restrictions on the plaintiff’s ability to now engage in work. The consistent theme is that he is restricted for lifting, bending, squatting, sitting and standing, which is what he described in his affidavit and oral evidence.
39Fourthly, the plaintiff’s rudimentary computer skills, his lack of formal education and his work history tend to the conclusion that at his age (he is soon to turn 54 years old) he realistically has no capacity for sedentary or administrative type jobs, which I consider are a fair description of the jobs identified by the defendant.
40Fifthly, I accept his evidence as to the unpredictability of his pain. That translates into an unreliability for even light work and that unreliability is a relevant factor in assessing the “after injury” physical capacity for work.[44]
[44] Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188
41Sixthly, I consider it of significance that the plaintiff is currently prescribed strong pain killing medication and requires approximately 20 Endone/Oxycodone tablets per month. The need for that medication is likely to have an adverse impact on his capacity for work but it also reflects the significant ongoing back pain that he suffers, with interference with his sleep and daytime fatigue.
42Seventhly, there is in fact no need to prefer the plaintiff’s evidence over that of the medical practitioners because his evidence is consistent with the medical evidence. While he may have a theoretical “after injury” capacity for “light work” and the jobs endorsed (with restrictions) by Dr Baynes, bearing in mind I am conducting an analysis for the purposes of a gateway procedure, in my view the evidence when considered does support the conclusion that “after injury” the plaintiff has no reliable capacity for “suitable employment”.
43Therefore, for the reasons given, I am satisfied that the plaintiff has established the requisite loss of earnings as he now has no capacity for “suitable employment” and he has satisfied the statutory formula.
44Leave is granted to the plaintiff to commence a proceeding for pain and suffering and los of earning capacity damages. I shall hear from the parties as to the form of orders sought.
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