Bartley v Victorian WorkCover Authority
[2017] VCC 1127
•22 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-03059
| DAVID ALEXANDER BARTLEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25, 26 and 27 July 2017 | |
DATE OF JUDGMENT: | 22 August 2017 | |
CASE MAY BE CITED AS: | Bartley v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1127 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to low back and neck – pain and suffering consequences with regard to neck injury conceded by defendant as being “serious” – loss of earning capacity – whether the plaintiff had suffered a loss of earning capacity of 40 per cent or more
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave to the plaintiff to commence a proceeding claiming pain and suffering damages and pecuniary loss damages in respect of injury suffered by him in the course of his employment in or about late August or early September 2012.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards with Ms K Gladman | Hounslow Lawyers Pty Ltd |
| For the Defendant | Ms S Bailey | Hall & Wilcox |
HIS HONOUR:
1 David Bartley alleges that he suffered injury to his low back and neck in the course of his employment with Pulbrook Air Pty Ltd (“Pulbrook”) in late August or early September 2012. He seeks the leave of this Court to issue a proceeding to recover damages for pain and suffering and pecuniary loss in respect of that injury.
2 Mr Bartley’s right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a) of the Act
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as it is relevant to this application, as:
“(a) permanent serious impairment or loss of a body function.”
4 It can be seen that the definition does not refer to any physiological injury as such, but to impairment or loss of a body function.
5 The body function relied upon in Mr Bartley’s application is that of his spine and, in particular, his lumbar and cervical spine.
6 The term “permanent” is to be interpreted as meaning “likely to persist into the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18]-[19]
7 With regard to pain and suffering damages, the impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than “significant” or “marked” and as being “at least very considerable”.[3]
[3]Section 134AB(38)(c) of the Act
8 Here, the defendant concedes that Mr Bartley suffers from a “serious injury” as defined, such as to enable him to commence a proceeding claiming pain and suffering damages. It follows that the defendant concedes that the pain and suffering consequences of the injury to his spine are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than “significant” or “marked” and as being “at least very considerable”.
9 With regard to pecuniary loss damages, leave is not to be granted by the Court unless Mr Bartley has established that, in addition to the requirements of s134AB(38)(c) of the Act, he has suffered, at the date of the hearing of his application, a loss of earning capacity of 40 per cent or more when calculated in accordance with the provisions of s134AB(38)(e), (f) and (g).
10 The defendant denies that Mr Bartley has suffered such loss of earning capacity.
Background
11 Mr Bartley is aged forty. He was born in England. He and his family moved to Australia in 1989 when he was aged about twelve, living initially in Sydney and later, in Melbourne.
12 He completed Year 11 at school.
13 After leaving school, Mr Bartley commenced an apprenticeship as a boilermaker, working on structural steel framing and fabrication for about four years. He left his apprenticeship with about six months remaining to be completed.
14 He travelled to England on a working holiday in 2000 and returned in 2002 aged about twenty-five. He obtained work for a furniture removal company for about two years.
15 He then worked in partnership with a friend in a carpet-laying business on a full-time basis until about 2009, and later, intermittently until about 2011.
16 In 2009, Mr Bartley obtained casual work in a number of different fields – as a dump-truck driver, excavator operator, water-cart driver and traffic-control worker. He also did some carpet-laying work.
17 In 2011, he worked for a brief time as a labourer for a plumbing business. He enjoyed that work and decided to pursue it as a career.
18 In early 2012, he completed a pre-apprenticeship course in plumbing at Swinburne TAFE.
19 In August 2012, he commenced as a first-year apprentice with Pulbrook under a Commonwealth scheme for adult apprentices.
20 His work with Pulbrook involved installation and repair of heating and cooling systems in domestic premises throughout Melbourne.
21 In his viva voce evidence, Mr Bartley stated that in the years leading up to his employment with Pulbrook, he had worked on a full-time basis, often working six or even seven days per week. His income taxation returns for the years ending 30 June 2009 to 30 June 2012 were tendered. They showed very modest levels of income were earned over that period.[4] In the financial year ended 30 June 2010, his only declared income was from the Department of Social Security. Under cross-examination, he said that his income, in some cases, was received cash in hand. However, he said that he had always declared the income earned by him. At no time did he concede that he had under-stated his income in his income taxation returns.
[4]Exhibit 9
22 For the purposes of this application, I shall assume that the income declared by him in his taxation returns in the years leading up to June 2012 was accurate. I do not accept that he worked full time over those years and I find that in the year ending 30 June 2010, he did not work at all.
23 I accept that in early 2011, Mr Bartley experienced some upper back pain and was treated by a physiotherapist a few times. The problem did not persist. Apart from that, I am satisfied he had no physical problems of any significance prior to August-September 2012.
24 Mr Bartley had some mental health problems requiring treatment in about 1999 although these do not appear to have been debilitating.
Circumstances of the injury
25 I am satisfied that in late August or early September 2012, in the course of his employment with Pulbrook, Mr Bartley was lifting an air-conditioning unit from the ground onto a roof. It weighed more than 50 kilograms. It rested on his shoulder. He was on a ladder which shifted and he “toppled”, becoming wedged against a wall. On descending, his back was hurting, but he managed to continue with, and complete the job.
26 Mr Bartley reported his injuries to the operations manager at work, but continued on for about a week afterwards, performing duties involving the installation of heating and cooling systems. He found the work to be difficult and he struggled with work involving lifting and bending or twisting. He ceased working at Pulbrook after being told that he would be laid off because of insufficient work.
27 Soon after, Mr Bartley obtained a job with G T & J A Jones Engineering Pty Ltd (“Jones”), commencing with that company on 17 September 2012. I accept that, although he was having real problems with his back, he did not disclose this to the new employer for fear that he would not get or keep that job. I accept his evidence that he struggled with the work with that company and again, went off work on 28 September 2012 as a consequence of spinal pain.
28 Except for short-lived attempts to return to work, Mr Bartley has not worked since.
29 He is currently in receipt of a Disability Support Pension.
Treatment
30 In his first affidavit (2015), Mr Bartley deposed that whilst working with Jones, he was having real problems with his back. He was taking Nurofen tablets and using Deep Heat and icepacks at the end of each day. The pain in his back spread to his legs, particularly the right leg.
31 He attended a physiotherapist in Wheelers Hill and a chiropractor in Dandenong.
32 He deposed that he was experiencing neck pain, but his legs were the biggest problem.
33 In November 2012, Mr Bartley attended his general practitioner, Dr Tonnu, who referred him for a CT scan of his neck and back.[5] The CT scan of his cervical spine was reported as showing, at C5-6 and C6-7:
·intervertebral disc space narrowing
·disc bulges
·bilateral uncovertebral joint degenerative changes with exit foraminal stenosis.
[5]CT scan, Plaintiff’s Court Book (“PCB”) 78
34 The CT scan of his lumbar spine was reported as showing:
·annular bulging at the L3-4, L4-5 and L5-S1 levels
·at L5-S1 level, extension of the annular bulging into the foraminal regions with marginal L5 nerve root impingement bilaterally
·ligamentum flavum hypertrophy present at L3-4 and L4-5 levels
·bilateral facet joint degenerative changes were noted at the L3-4, L4-5 and L5-S1 levels.
35 From December 2012, Mr Bartley attended a new general practitioner, Dr Stabelos. He was referred to a neurologist, Dr Ganesvaran, who sent him for an MRI scan of his lumbar spine in December 2012, and for a further MRI scan of both his cervical and lumbar spines in March 2013.
36 The December 2012 lumbar MRI scan[6] was reported as showing:
·disc degeneration at L5-S1
·central canal and left lateral recess stenosis at L5-S1 with compression of the budding left S1 nerve root
·an annular tear at the L5-S1 level.
[6]PCB 79
37 The March 2013 lumbar MRI scan[7] was reported as showing multi-level degenerative change:
·minor broad-based disc bulges at L3-4 and L4-5 levels
·at L5-S1, disc desiccation with mild to moderated broad-based disc bulge
·apparent contact with the exiting right L5 nerve root.
[7]PCB 81
38 The March 2013 cervical MRI[8] was reported as showing, at the C6-7 level:
[8]PCB 80
·moderate to large left paracentral disc osteophyte complex
·moderate canal stenosis
·cord compression demonstrating abnormal, high T2 signal at C6
·no complicating syrinx formation
·moderate left foraminal narrowing.
39 Around that time, Mr Bartley was prescribed strong painkillers. He was walking with a limp and using a crutch. He was unsteady on his feet.[9]
[9]PCB 14-15, 33; T63
40 He was referred to Mr Xenos, neurosurgeon, who recommended surgery to his neck on an urgent basis.
41 On 8 April 2013, Mr Bartley underwent a discectomy and fusion at the C6-7 level. He later attended at Wantirna Health over a period of about sixteen weeks for rehabilitation. He noticed that following the surgery, he was steadier on his feet but still had back pain and leg pain affecting both legs, with tingling in his feet.
42 In late 2013, Mr Bartley attended a pain management course at the William Angliss Hospital.
43 In December 2014 and March 2015, Mr Bartley underwent epidural/cortisone injections which helped reduce the pain for a week or two.[10] These injections were given about one-and-three-quarter years and about two years after his neck surgery. The report of Mr Xenos dated 8 April 2015 indicates they related to the lumbar spine rather than the neck.[11]
[10]PCB 15, 58
[11]PCB 57
44 In 2013 and 2014, Mr Bartley had massage and acupuncture, which provided some relief from symptoms, but he ceased these treatments as he could not afford to pay for them. He appears to have been ignorant of his right to claim these expenses from WorkCover; however, he was not questioned about this at the hearing.
45 In the latter part of 2013, Mr Bartley began to have problems with his mood. He considered himself to be debilitated and unable to work. He grew depressed.
46 In August 2015, he suffered what he describes as a “breakdown” and was admitted to Maroondah Hospital. He had a further recurrence in December 2015 and was readmitted to that hospital for about a week. His medication was changed. He has continued to see Mr Xenos from time to time since the surgery, and has continued to see his general practitioner, Dr Stabelos, generally on a monthly basis up to the current time.
47 In his second affidavit sworn in early July 2017, Mr Bartley deposes that he continues to be prescribed Zyprexa (medication which I understand is often prescribed for psychotic conditions but also for other reasons), and also takes Nurofen, Brufen and Panadeine Forte. He said that he used his mother’s Brufen and Panadeine Forte.
48 Mr Bartley was keen to retrain and return to work. He was interested in retraining as a building surveyor. He commenced an appropriate course at Holmesglen TAFE in February 2015, but deposed that he was unable to manage the amount of sitting required to complete the course work. He did not complete the course.
Loss of earning capacity
49 This was the principal matter in issue at the hearing of Mr Bartley’s application.
50 In my view, the issue needs to be considered in the context of the defendant’s admission which was, effectively, that Mr Bartley had suffered consequences of his cervical spine injury that were, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than “significant” or “marked” and as being “at least very considerable” and were likely to persist for the foreseeable future.
51 Notwithstanding, the defendant disputed that Mr Bartley had no current capacity for work and denied that he had suffered a loss of earning capacity of 40 per cent or more when assessed in the manner previously explained.
52 Both parties tendered reports from vocational consultants and a number of medical experts. None were required for cross-examination.
53 In summary:
Mr Brian Davie
54 In August 2013, Mr Brian Davie, consultant orthopaedic surgeon, examined Mr Bartley and concluded that he had sustained a lower lumbar disc injury and a cervical disc injury as a result of the accident at work in September 2012. He noted the spinal fusion procedure at C6-7. He opined that he did not believe that Mr Bartley was able to return to heavy manual work and did not think that he would be able to return to his previous jobs as a plumber, boilermaker or carpet layer. However, he (somewhat surprisingly) thought that he may be able to drive heavy equipment. He noted that Mr Bartley had told him that he was planning to carry out a course as a project manager and Mr Davie thought that this would be an ideal type of work for him to do in the future. He did not disclose what actual duties he understood that Mr Bartley would perform in such an occupation. He said he had done well from both injuries but had a permanent impairment due to the cervical fusion at C6-7. He said that he needed to be re-employed in lighter work in the building industry.[12] I note that this opinion is based on a consultation that occurred about four years ago.
[12]Defendant’s Court Book (“DCB”) 59
Mr Rodney Simm
55 Mr Rodney Simm, orthopaedic surgeon, examined Mr Bartley in October 2013 and opined that his lumbar injury incapacitated him from all pre-injury occupations, including working as a boilermaker, plumber’s apprentice, air-conditioning and cooling apprentice, carpet layer and driver of heavy earthmoving equipment. He specifically noted that although the latter occupation was largely sedentary, driving heavy equipment over rough terrain would not be possible because of the jarring of his lower back. Mr Simm thought that he was now confined to light employment, needing some flexibility with static postures. Light objects would need to be handled between knee and chest height, and re-training may be required to enable him to work in a suitable occupation in the future.
Mr Chris Xenos
56 In April 2015, Mr Chris Xenos, treating neurosurgeon, opined that Mr Bartley had a long-standing degenerate spine complaint, and that there were features of Chronic Pain Syndrome already established, which he classed as a “permanent injury”. He said he would be most surprised if Mr Bartley ever returned to any meaningful employment in the long term and that he would support his application for any disability pension.[13] He considered that the right leg symptoms were neuropathic;[14]
[13]PCB 57-8
[14]PCB 57
Mr Michael Dooley
57 Mr Michael Dooley examined Mr Bartley on one occasion in November 2016. He stated:
“… It is now around four years since the episode. My view would be that the constancy and intensity of Mr Bartley’s ongoing symptoms and his described disability are greater than one would expect to see for his organic condition. I believe that he has had an understandable psychological reaction to his situation and that this reaction has significantly influenced his ongoing symptoms.
… Mr Bartley is thirty-nine years of age. For his overall well being (sic), it is imperative that he returns to suitable work. I am of the view that any surgery on his lumbar spine would not be predictable in terms of improving pain and that it would run a significant risk of compounding his clinical situation.
…
From an orthopaedic viewpoint only, I believe that Mr Bartley has a physical capacity to carry out suitable work. I do not believe that he would be able to carry out heavy physical work or work that involved a lot of activity at and above head level. He has a physical capacity to carry out light physical work and clerical duties.
From an orthopaedic point of view, I believe that Mr Bartley will continue to note some intermittent cervical spine pain and some intermittent lumbar spine pain. … .”[15]
[15]DCB 4
58 In a supplementary report dated June 2017, Mr Dooley stated that he believed Mr Bartley had a physical capacity to work as a receiving and despatch clerk, purchasing and supply logistics clerk, and rental sales person in relation to car hire, plant machinery and equipment hire.
Dr Gary Davison
59 In May 2016, Dr Gary Davison, occupational physician, examined Mr Bartley. He concluded that he had some mild residual neurological symptoms following his C6-7 discectomy and cervical fusion. He noted that his treating surgeon (Mr Xenos) was of the opinion that Mr Bartley had developed a Chronic Pain Syndrome.
60 In relation to Mr Bartley’s neck injury, he noted that it had been surgically treated and that he had made a good recovery, but there was likely to be some residual neurological impairment as a result of the initial injury, and he considered that there is likely to be an ongoing contribution from employment as a result.
61 With regard to the lower back condition, he noted pre-existing degenerative change and considered that the incident of September 2012 did not contribute to Mr Bartley’s then current presentation. Notwithstanding, Dr Davison opined that Mr Bartley did not have a capacity for his pre-injury duties and that the prognosis for further improvement was poor.[16] He thought that he did have a limited capacity for employment with restrictions that should be observed “strictly” –
[16]DCB 28
· graduated hours of work commencing at two hours a day on alternate days, three days per week
· self-paced duties
· avoid manual handling greater than 4.5 kilograms in force or weight being mid-chest and mid-thigh height
· avoid prolonged standing or prolonged sitting by varying posture regularly and at will.
Mr John F O’Brien
62 Mr John O’Brien, orthopaedic surgeon, examined Mr Bartley in January 2017 and concluded that he was suffering from predominantly back and leg pain, but also continuing neck pain. Examination showed a good range of movement of the cervical spine and no evidence of accompanying nerve root or spinal cord signs. He thought the surgery had removed the symptomatic cervical pathology. He considered he suffered now from “non-specific chronic cervical and lumbar pain” and that the problem now appears to be “somewhat complicated by psychological issues”.
63 With regard to work capacity, he said:
“… Physically, I certainly would consider this patient is not capable of undertaking his pre-injury occupation. Indeed, on the basis of the clinical course of chronic pain I would suggest this patient now is incapacitated, and I would see no likelihood of this patient returning to gainful employment. … There continues to be restriction of this patient’s general, social, domestic and recreational activities and this, I would suggest, is permanent.”[17]
[17]DCB 62-63
Dr George A Stabelos
64 Dr Stabelos (Mr Bartley’s general practitioner currently and since late 2012) opined in July 2017 that he does not have a capacity for work. He said he does not have a realistic capacity to obtain employment in his previous field and that this had been further complicated by recent mental health issues which are likely to have been contributed to, at least partially, by the injuries. He said it was unclear as to whether he would be able to obtain employment in the future “in any field”. He said that it was more likely than not that he would have to remain on a Disability Support Pension.[18]
[18]PCB 75D
65 A number of other medical reports were tendered by one or other of the parties. These did not take the issue of work capacity any further.
66 For obvious reasons, opinions as to Mr Bartley’s work capacity provided on the basis of examinations that took place three, and even four years ago, are of limited assistance to me. It is his capacity at the current time that I am required to consider.
67 The opinion of Dr Davison appears to be that Mr Bartley’s low-back pain relates solely to a pre-existing condition and not to the accident in question. This is not a view held by other practitioners and, on balance, I do not accept it.
68 In addition, the plaintiff tendered a report from Evidex authored by Mr Glen Dwyer, occupational therapist. His qualifications are:
· Bachelor of Applied Science in Occupational Therapy (University of Sydney)
· Graduate Certificate in Human Factors (University of Queensland)
· Registered Occupational Therapist
· Seventeen years’ experience as a Clinical Occupational Therapist.
69 The defendant tendered a report from Recover, jointly authored by Ms Robyn Willett, who described herself in the report as an “Employment Placement Consultant”, and by Ms Janette Ash, who described herself in the report as an “Injury Management Consultant”. The qualifications and experience of Ms Willett and Ms Ash were not provided and are unknown to me.
70 Mr Dwyer considered a number of potential employment options for Mr Bartley. These were:
·plumber’s apprentice
·plumber’s labourer
·boilermaker’s apprentice
·paper products machine operator
·forklift operator
·furniture removalist
·carpet layer
·backhoe/bobcat/excavator operator
·road traffic controller
·service station console operator
·telemarketer
·ticket seller
·betting agency counter clerk
·data entry operator
·mail clerk
·ticket collector or usher
·filing or registry clerk
·domestic cleaner
·car park attendant
·kitchenhand
·bar useful or busser
·fruit and vegetable packer
·product assembler
·school crossing supervisor
·Meter reader.
71 I do not intend to set out full details of Mr Dwyer’s report. His conclusion is that for the reasons he expresses in his consideration of each of those positions, Mr Bartley is unsuited to such employment. Mr Dwyer stated:
“Given Mr Bartley’s significant functional incapacities arising from his injuries, I am unable to identify any recognised occupation for which he has the transferable skills and where all inherent job requirements are within his functional capacity. The sequelae of his injuries will therefore leave him uncompetitive in the open labour market.
I conclude that no unrestricted recognised occupation in the open labour market for which Mr Bartley is likely to qualify is suitable following his injuries and this situation will continue for the foreseeable future.”[19]
(emphasis in original)
[19]PCB 86
72 In the report from Ms Willett and Ms Ash, their conclusion is that Mr Bartley does have physical tolerances which would have to be accommodated in any suitable employment. Limitations were summarised by them as:
·avoiding manual handling greater than 4.5 kilograms in force or weight between mid-chest and mid-thigh height
·avoiding prolonged standing or prolonged sitting by varying posture regularly, and at will
·no heavy work, or work at or above head level.
73 Ms Willett and Ms Ash concluded that positions of:
·receiving and despatch clerk
·stock clerk
·rental sales person
were suitable, given his transferable skills, self-reported physical tolerances, and the opinions in the medical reports provided to them.
74 I note that their report is dated 22 December 2016. Notwithstanding, they do not appear to have been provided with the reports of Dr Stabelos, the treating general practitioner, dated 10 December 2012 or 3 March 2013. They were not asked to consider Dr Stabelos’ report of 19 July 2017. They do not appear to have been asked to consider the report of Mr O’Brien dated 16 January 2017, or asked to provide a supplementary report taking his views into account. Further, they do not appear to have been asked to provide any supplementary report taking into account the opinions proffered by Mr Dwyer in his report dated 3 April 2017.
75 With regard to the three jobs identified as being suitable by Ms Willett and Ms Ash, I find as follows:
(a)Receiving and despatch clerk – the report makes clear that although the work is likely to be light in terms of its physical nature, all or nearly all of the duties would need to be performed by Mr Bartley seated or standing for significant periods. Some of the jobs are described as being in an indoor office or storeroom environment. Others may be required to perform their duties outdoors for periods, such as at a timberyard where they would be exposed to weather conditions, and almost certainly be on their feet. People working in that field are said to usually require a medium level of digital literacy. There was no evidence that Mr Bartley had any level of digital literacy;
(b)Stock clerk – this position is said to require a medium level of digital literacy. Employers are said to frequently sit at computer workstations while completing clerical tasks. Bending, squatting or crouching may be required occasionally when inspecting goods. Repetitive movements are likely on an occasional to frequent basis. Mental skills necessary for the job include a good level of record-keeping, organisation and communication. There was no evidence that Mr Bartley had any such experience;
(c)In relation to the position of rental sales person – this position appears to relate to a business renting out plant machinery, equipment, or motor cars, to individuals and businesses. The sales person would be required to determine customers’ requirements and to advise them on product range, price and availability. He would complete the required paperwork (which I assume involves preparation and execution of rental agreements and invoices), entering rental agreements into the computer system, processing payments by customers, providing any necessary information to the customer, monitoring the employer’s fleet, inspecting motor vehicles before they leave the facility, and on their return, and arranging required cleaning and repairs. There is no evidence that leads me to believe that Mr Bartley has the intellectual capabilities or experience to do the vast majority of these tasks. I note that staff are constantly required to stand or sit at benches, and that mental skills for the position include writing, numerical analysis, sales and customer service skills. There was no evidence before me that Mr Bartley had any of those necessary skills.
76 Any assessment of Mr Bartley’s capacity for employment will obviously include consideration as to whether he was an honest witness when describing the level of his pain, and the practical restrictions and limitations caused by his injuries.
77 It was my view that Mr Bartley gave his evidence in a generally honest and reliable fashion. I accept that his levels of pain and limitations are as described by him in his affidavits and viva voce evidence. There was no evidence to demonstrate any exaggeration on his part, or that he was suffering less pain than he alleged, or that he was capable of doing more activities than he alleged.
78 On that basis, I have no difficulty concluding that it is most unlikely that Mr Bartley would be capable of performing, on a regular and reliable basis, any of the positions nominated by Ms Willett and Ms Ash.
79 Taking all the evidence into account, I consider that the opinions expressed by Mr Dwyer in relation to the significant number of positions considered by him are likely to be correct.
80 I have come to the conclusion that, on the balance of probabilities, Mr Bartley has no work capacity for any position suitable for him.
81 It follows that I am satisfied that Mr Bartley has suffered a loss of earning capacity that is more than 40 per cent when assessed in accordance with s134AB(38)(e), (f) and (g).
82 Accordingly, there will be leave to Mr Bartley to commence a proceeding claiming damages in respect of loss of earnings relating to injuries to his spine suffered in the course of employment in late August or early September 2012. I note that the defendant had previously conceded that he was entitled to claim damages in respect of that pain and suffering.
83 I shall hear the parties as to any consequential orders sought.
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