Baullo v JBS Australia Pty Ltd

[2023] VCC 1091

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Serious Injury List

Case No. CI-21-02659

CARMELO BAULLO	Plaintiff
v
JBS AUSTRALIA PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2023
DATE OF JUDGMENT:	30 June 2023
CASE MAY BE CITED AS:	Baullo v JBS Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VCC 1091

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Workplace Injury – knife hand worker at abattoir – whether there exists an extant organic injury – organic disorder of pain pathways in left and right hands – worker under 26 when injured – worker to establish lost earning capacity of 40 percent or more

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Cases Cited:Advanced Wire & Cable v Abdulle [2009] VSCA 170; Margriplis-Hampton v Spendwatt Pty Ltd [2022] VSCA 15; State of New South Wales v Moss (2000) 54 NSWLR 536

Judgment:                  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	A Ingram KC with O Lesage	Carbone Lawyers
For the Defendant	S Manova	Lander & Rogers

HIS HONOUR:

1Carmelo Baullo started work as a knife hand at JBS Australia Pty Ltd (“JBS”) in March 2019.  Shortly after he contracted bilateral carpal tunnel syndrome (“CTS”).  The case before the court requires resolution of two questions.  The first is whether he currently suffers from an organically based injury to the left and/or the right hand.  The second question is whether such injury has led to a loss of earnings of 40 per cent or more.  If both those questions are answered in the affirmative, then Mr Baullo is entitled to a determination that he has sustained a serious injury for both pain and suffering and loss of earnings purposes.  I have determined both questions in his favour for the following reasons.

Relevant history

2Mr Baullo was born in October 1994.  He completed Year 12 and then began work doing a variety of different jobs.  The first was with ITM where he worked for six months and then he became a painter with Vitmos Painting for about two years.  After that time he began an electrical apprenticeship with L & O Technologies (“L & O”).  He described that apprenticeship as requiring both course work which was conducted at Victoria University (“VU”) as well as hands-on work learning his trade.  This was full-time work for which he was paid apprentice wages.  In 2018, in the third year of his apprenticeship, he struck some family difficulties.  During this time he ceased work at L & O because he was not able to regularly attend.  He was forced to move out of his parents’ home.  It was a period of being unsettled.  He lived in his car for more than a few weeks.  He then went to live in a refuge located in Sunshine for one to two months.  As a result, he obtained work as a carpet layer very briefly and then in February 2019 applied to JBS Australia to work in the abattoir.  His application was successful and he commenced there in March 2019.

3He worked as a knife hand between 5:30am in and 3:30 pm 5 days a week.[1]  He processed about 950 carcasses a day on a continuous moving line. Shortly afterwards he began to consult his treating doctor for hand pain.  He was prescribed Naproxen and continued working.  He returned to see his doctor shortly afterwards.  He was prescribed Lyrica for nerve pain and Prednisolone for inflammation.  Ultrasound of the right wrist was performed and his treating doctor then referred him off to see Dr Poon, a neurologist.  His treating doctor, Dr Wilson, diagnosed him with CTS shortly afterwards. 

[1]Plaintiff’s Further Amended Court Book (“PCB”) 7

4On 17 July 2019, his employment with JBS was terminated.[2]  He made a WorkCover claim at this time and the opinion of the medico-legal specialist, Dr Kostos, rheumatologist, was that his condition was related to employment.  Primarily this was because of the sudden onset of symptoms after the work that he was required to perform.  Nerve conduction studies were then undertaken and he was referred to Dr Lo, a hand surgeon.  He performed a right carpal tunnel release on 4 February 2020.  He continued to experience significant pain and reported that to his treating doctor.[3]  He was referred for hand therapy with Mr Antoniou and kept up with hand therapy with him until November 2020.  He continued to remain off work and had pain in both wrists.  Dr Lo then performed a carpal tunnel release on the left side on 1 December 2020.  He then returned to Mr Antoniou for hand therapy in February 2021.

[2]PCB 382

[3]PCB 275

5In his affidavit sworn on 4 February 2021, he deposed to having ongoing pain, loss of feeling and numbness bilaterally.  He deposed to struggling to lift, squeeze and hold items in either hand.  It affected his ability to do domestic chores and caused him difficulty sleeping.  His treating doctor, Dr Wilson, commented that at that stage his right wrist and left wrist were not back to normal and that he was restricted in all repetitive forceful jobs.  However, he considered optimistically that these matters should resolve within one to three months.[4]  This was a position which Dr Kostos agreed with.[5]  Mr Antoniou discharged him from care at the end of March 2021 at which point grip strength was still reduced and his ability to weight bear on the left side was reduced to 80 per cent but the right was at 100 per cent.  Overall, Mr Antoniou considered that progress was good and that the symptoms should fully resolve within six months.[6]

[4]PCB 282-283

[5]Defendant’s Court Book (“DCB”) 21-22

[6]PCB 285-285

6Mr Baullo then consulted another hand therapist, Ms Spratt, in October 2021.  In evidence Mr Baullo said that he ceased consulting with Mr Antoniou because he was dismissive of his concerns.  This led him to see Ms Spratt.  She was able to take a history from him where he complained of nocturnal paresthesia and pillar pain.[7]  She considered that his condition was resolving and that within six or 12 months it would do so. [8]

[7]Pillar pain is pain at the base of the heel of the palm.

[8]PCB 298

7Shortly thereafter in November 2021, Mr Baullo commenced working in administrative duties through an agency and he worked at Prohealth, Downer and Link Group.

8Dr Wilson remained concerned about his ongoing complaints of pain and paresthesia in the hands and sought to have Dr Poon conduct further EMG studies. 

9There was confusion about who would pay for further EMG study but ultimately Dr Wilson continued to write to the WorkCover insurer to seek payment for it. 

10In mid-2022 he presented with worsening pain to Dr Wilson.  He considered at that stage that he had lifting restrictions and was not able to undertake any repetitive or heavy manual work which would require prolonged gripping or forceful movement of the hands or repeated movements in the wrist.  He began him on Tapentadol and Temaze at night to assist with sleep.

11In July 2022, he obtained work with Ausolec.  He gave evidence that he intended to recommence his electrical apprenticeship and had asked his brother-in-law to help him find a job.  His brother-in-law worked for Ausolec and so he began working there, not as an apprentice but as simply another worker in about July 2021.  His evidence was that this continued for a month or two until his employer found about his hand injuries and he was then let go.

12Dr Kostos saw him again in August 2022 and recorded that Mr Baullo felt that there was a deterioration of his condition bilaterally.  He had intermittent pain, reported paresthesia and numbness in the forearms, wrists and hands.  Dr Kostos took a history that he was endeavouring to work as an electrical apprentice.  This was similar to the history taken by Dr Peter Blombery who diagnosed him with an organic disorder of pain nerve pathways.  He considered that it was unlikely that the CTS remain extant because it would cause only numbness and tingling rather than pain.  The history he had from Mr Baullo was of pain and particularly pain at night.  He considered that there was no capacity for his pre‑injury work at JBS. 

13He saw Dr Crock around this time as well, who similarly agreed that on his history, pushing, pulling and lifting were all activities that might cause problems.  He reserved his opinion, however, as to capacity until after the neurological review was complete.  Later that month he saw Mr Sharma, occupational therapist in hand therapy.  The history he took was consistent with that taken by Dr Kostos, Dr Crock and Mr Blombery.  He considered that grip strength was reduced and that pushing and pulling was limited was 5 kilograms.  In the affidavit sworn on 29 August 2022, the plaintiff continued to depose to having difficulties with his hands being cold and discoloured.  He deposed to wearing wrist splints at night and that his hand problems were such that he could not go to the gym or play the guitar as he used to. 

14On 18 October 2022, the EMG studies were finally conducted by Dr Poon.  They were a normal study and reported to show no evidence of ongoing CTS.

15Shortly after that in November 2022 the plaintiff started work at Artistic Divan furniture company, in the sales administration department.  He works there currently full time, nine to five, five days a week in an administrative role. 

16In February 2023, he complained to his doctor of ongoing pain in both wrists and he was ceased on and Temaze and Tapentadol and put onto Amitriptyline and Palexia. 

17The plaintiff’s condition has remained much the same since that time.  He has seen a number of medico-legal practitioners since February of this year which I will come to in a moment. 

18Otherwise his domestic condition remains that he lives with his domestic partner and works full time.

The issues

19The parties in this case agree on a number of matters.  First, that the plaintiff suffered an injury arising at JBS.  That relevantly is bilateral CTS treated surgically.  The parties disagree as to whether currently there remains an extant organic injury.

20The second issue only arises if the first question is answered in the plaintiff’s favour.  That question is whether the organic injury has resulted in a loss of earning capacity of 40 per cent or more.  Given that he was under 26 at the time of the injury in 2019, he does not have to satisfy the criteria set out in paragraph (f) of the definition of serious injury.  Rather, the assessment of loss of earning capacity proceeds in accordance with common law principles as expressed in State of New South Wales v Moss.[9]

[9]Margriplis-Hampton v Spendwatt Pty Ltd [2022] VSCA 15 at [16] approving State of New South Wales v Moss (2000) 54 NSWLR 536

21This requires a comparison of an assessment of what his earning capacity would have been but for the organic injury.  Here, Mr Baullo submits that but for his injury he would have completed his electrical apprenticeship and be earning at least $140,000 per annum.  He called in aid of that submission the affidavit of a comparable worker, Mr Plese.  He is the same age as Mr Baullo and was completing his electrical apprenticeship at the same time as him.  His earnings were detailed in his affidavit sworn and filed on the first day of trial. In the alternate he relied on an award which set out wage rates he argued were applicable to his situation.

22Currently Mr Baullo earns $60,011.12.[10]  If $60,011.12 represented 60 per cent of his earnings, then the relevant figure would be $100,018.53. The question for determination is whether but for the injury, Mr Baullo would have the capacity to earn in excess of $100,018.53.

[10]PCB 409

23If that finding were made in his favour, then according to the principles in Advanced Wire & Cable v Abdulle,[11] Mr Baullo would also be entitled to a determination of serious injury in respect of pain and suffering.

[11][2009] VSCA 170

Is the injury complained of organic?

24In considering this question I am mindful of the need to make findings in respect of each wrist and hand separately.

25The plaintiff’s position is that he has sustained an organic disorder of pain pathways[12] as identified by Dr Blombery.  This submission gains support from the fact that, as all doctors in this case accept, there was an organically based injury arising from the work at JBS.  That was CTS that required surgical decompression.  Such surgery was warranted and performed appropriately.  All doctors then agree that after the successful surgery further EMG studies performed by Dr Poon showed that the carpal tunnel syndrome had resolved.  The point of disagreement arises as to the cause of the ongoing complaint of pain, restriction, and other symptoms the plaintiff complains of. 

[12]PCB 308

26Turning to consider the medical reporting in this matter.  Dr Blombery opines that given the obvious compression of the median nerve there has been consequent nerve sensitisation.  In his opinion this explains the ongoing pain not just at the hand and wrist but also into the forearm.   While the history he took of minor improvements post-surgery is incorrect given the plaintiff’s evidence of significant improvement, I do not consider this material given all doctors agree with the plaintiff that the carpal tunnel has resolved. Dr Blombery concluded that given the compression of the median nerve, organic nerve sensitisation had occurred. It is not, as the defendant suggests, a situation of the surgery resulting in chronic pain, but a result of the initial condition itself.[13] As for Dr Blombery not properly taking into account Mr Baullo’s work capacity of “substantial data entry”,[14] I do not consider this material. Mr Baullo gave evidence of the difficulty this caused him day-to-day which Dr Blombery properly took into account. On this point, he took a history of a “lot of keyboard work”.[15]

[13]Addendum to the Defendant’s Closing Submissions dated 13 June 2023 (“Defendant’s submissions”), at paragraph 2(2)-(3)

[14]        Defendant’s submissions, at paragraph 2(4)

[15]        PCB 347

27Turning to the other medico-legal practitioner called in aid by the plaintiff, Dr Crock, he considered that the plaintiff’s condition was a neurological one.[16]  In consequence he imposed a range of restrictions on his lifting, pulling and pushing capacity.  This all suggested a physical limitation arising from a physical problem.  The plaintiff’s treating doctor was not able to provide a diagnosis in respect of the ongoing symptoms.  He opined:

“I could not detect any significant physical restrictions in range of motion or power that would likely affect employment.”[17]

[16]PCB 316, answer to Question 5

[17]PCB 304

28Overall, he deferred to other experts. His opinion was of limited value but did confirm he was subject to physical restrictions, as similarly imposed by others. In terms of diagnosis, it is unsurprising that the treating doctor could not find a definitive diagnosis.  Rather, it is the expert opinion of specialists that is more likely to uncover the actual problem that the plaintiff suffers from.  To this extent I prefer the evidence of Dr Crock and Dr Blombery on the issue of the cause of the plaintiff’s ongoing problems. 

29Turning then to Mr Dixon’s opinion, which was called in aid by the defendant.  In his report of March 2023, he suggested that there was a “possibility” of a continuing condition related to bilateral median nerve compression.  However in his subsequent report of May 2023, he considered that:

“On balance, the persistent problems are related to non-organic conditions and to comment further requires an opinion of an appropriately trained professional in mental health.”[18] 

[18]DCB 50

30I do not accept Dr Dixon’s opinion as his report seems somewhat inconsistent.  For example, he imposed significant physical restrictions on the plaintiff’s ability to complete occupational tasks.  He considered that Mr Baullo has the capacity for light non-repetitive activities.  He opines that as a result he could not do the work of an electrician for example.[19]  Specifically he considered that Mr Baullo should avoid being an electrician or an electrical engineering technician.[20]  It has to be asked rhetorically why would he impose physical restrictions on the plaintiff’s capacity for work if his condition was not physical in nature?  To the extent that it might be suggested there was a psychological injury manifest, there is no evidence from either his treating doctor, the neurologist or his surgeon that he needed referral to a psychiatrist for counselling.  At most, there was a referral for pain management, which the plaintiff did not take up.  Further to this point, his treating doctor continues to prescribe him medication such a Palexia and Amitriptyline for nerve pain.  These matters are not engaged with by Dr Dixon and I consider his report overall to be inconsistent and I do not accept it.

[19]PCB 51

[20]PCB 51

31The other report relied upon by the defendant was that of Dr Kostos, rheumatologist.  His opinion is provided over a series of six reports.  He accepted as a starting point that the plaintiff had an organically based bilateral CTS which required surgery.  He later opined that after the time of the carpal tunnel releases there had been resolution of the bilateral carpal tunnel syndrome and that the ongoing complaints of pain and other symptoms were non-organically based.  As part of his assessment he considered the plaintiff’s history and recounting of symptoms was erratic and inconsistent.  He considered much of the reporting of pain to be non-anatomical and he therefore posited that the condition was not organic. 

32The first reason I do not accept Dr Kostos’ opinion is that he makes vague allusions as to the plaintiff’s presentation.  For example, he stated:

“… there are clear concerns regarding his presentation today as there has been on the two previous occasions that I have seen him.”[21]

[21]DCB 24

33It is unclear what these concerns are.  If they relate solely to the non-anatomical presentation of symptoms, then this is addressed by Dr Blombery’s opinion about the sensitisation of nerve pathways.  This point is not grappled with at all by Dr Kostos.  Rather, he seems to consider the pain and symptomology only in the context of there being a repeat of the carpal tunnel syndrome.  This is not the case that the plaintiff puts.  Rather, the plaintiff puts the case on the basis as expressed by Dr Blombery.  This is of there being pain sensitisation of nerve pathways.  This is not necessarily in the distribution which would be demonstrative of carpal tunnel symptomology.  It can be seen then that Dr Kostos is simply looking for symptomology which would correlate with a recurrence of carpal tunnel syndrome rather than grappling with in the plaintiff’s case of pain sensitisation of the nerve pathways.  The distribution of such pain occurs in areas different to that associated with carpal tunnel syndrome. In fact, as Dr Blombery points out, carpal tunnel syndrome is not associated so much with pain as it is with pins and needles and numbness.  The testing conducted by both Dr Kostos and Dr Dixon, such as Phalen’s Tinels, is specific for carpal tunnel and is of limited use.

34The reason Dr Kostos may not have engaged with the plaintiff’s case is that he does not appear to have been provided with the reports and opinions of Dr Blombery.  This is to be contrasted with Dr Blombery’s opinion.  He had all of Dr Kostos’ material and was asked specifically to address his opinion.  He reviewed that material in his report of 10 March 2023.  That review did not cause him to vary his opinion.

35Similarly, he reviewed the latest report of Dr Dixon dated 5 May 2023 in his report of 6 June 2023.  Having reviewed that material, he did not feel there was any need to change his opinion.  Specifically, however, he grappled with Dr Dixon’s opinion that the condition was a non-organic one and that a psychological review was required.  He saw no such need for this given his diagnosis of an organically based sensitisation of nerve pathways leading to pain.  Given his detailed review of Dr Kostos’ and Dr Dixon’s material and the manner in which he has expressed his opinion, I consider it to be well reasoned and sound.  I accept it in preference to Dr Kostos.

36I do not consider the reporting of Mr Antoniou or Ms Spratt to be useful in the diagnosis of the plaintiff’s condition.  They are not specialists in hand surgery or in pain management.

The plaintiff’s evidence

37The plaintiff’s evidence was said to support the findings of both Dr Dixon and Dr Kostos in that it was said to be unreliable. 

38The first ground on which the plaintiff’s evidence was attacked was that it was inaccurate as to how long he had done his electrical apprenticeship before commencing at JBS.  It will be recalled that the plaintiff’s evidence was that he had done three of four years of his electrical apprenticeship before ceasing.  The initial part of cross-examination was devoted to this topic.  However, when counsel came to the 2018 tax return, it appears that she found a further notation of the plaintiff being paid by L & O in 2018.  No formal concession was made but it appeared that thereafter there was an acceptance on the defendant’s behalf that the plaintiff had in fact continued in his electrical apprenticeship in 2017/2018, which supports the plaintiff’s argument that he had done three of the four years of his apprenticeship.  On this point I would accept the plaintiff’s evidence as accurate that he had done three of four years of his electrical apprenticeship.

39The next point that the defendant raised during the course of cross-examination was why Mr Baullo had not made attempts to recommence his electrical apprenticeship at an earlier stage.  The plaintiff’s evidence on this point was open and frank.  He freely admitted to having significant difficulties at home, then being required to live in his car and lastly to having to move into a men’s refuge for one to two months.  He described this period as being unsettled.  He then volunteered that during his time at JBS he had in fact contacted VU to try to recommence his apprenticeship and, in addition, had inquired at JBS whether they could put him on as an apprentice.  He gave evidence that the kill floor manager would not release him to undertake that role.  None of this was in his affidavit.  That much is clear.  I accept the defendant’s submission that such material should have been in the plaintiff’s affidavit.  The plaintiff’s evidence on this point I treat with a degree of scepticism.  This is because the plaintiff’s case is that he was committed to finishing his electrical apprenticeship and, in the swearing of his five affidavits,  there is simply no mention of these important matters.

40The next point the defendant put was that surveillance video shown of about 51 minutes showed the plaintiff working in a warehouse and on a building site carrying boxes, various pieces of steel rail and solar panels.  This was said to be in contrast to the plaintiff deposing in his first affidavit to struggling, for example, with brushing his teeth.  It must be noted that the first affidavit was sworn over a year prior to the surveillance and since the early part of 2022 the plaintiff had been complaining of worsening problems in the hands, so much so that he was wearing nocturnal splints made by Ms Spratt.  When regard is had to the surveillance video it also shows very clearly that the plaintiff is having difficulties with his hands.  For example, at 10:49AM he tenses and releases his fingers and then at 11:11AM he shakes hands.  In re-examination he said this was because of the difficulties and problems that he had with using his hands for this work.  Ultimately when his employer discovered his hand condition, he was terminated. 

41Viewing the surveillance in conjunction with all of the evidence, it does not appear to me that it is inconsistent with the plaintiff’s overall case.  This is because it shows the plaintiff attempting to do his electrical apprenticeship despite the fact that his treating doctor at that stage had suggested to him that he could not perform work such as this.  The attempt to work at Ausolec strongly supports his case that he intended to go back and complete his electrical apprenticeship.  The surveillance then shows the difficulties and discomfort that such work produced for him. The fact he was having difficulties with his hands during the Ausolec work is confirmed by the treating doctor’s note on 29 July 2022 which states that he was finding increased pain, pins and needles and numbness with the trial of electrical work. [22]

[22]PCB 437

42In keeping with his treating doctors’ recommendation then, he has not gone back to such work. 

43Lastly, it must also be noted that I consider the plaintiff gave evidence in a way which was open and responsive.  He was polite and answered questions as best he could.  He made significant concessions against his own interest.  For example, it was put to him whether he had a good response to surgery.  He agreed that he had.  It was then said to him that he had had significant improvement.  He again agreed that that was the case.  He did not seek to prevaricate or hide from the fact that surgery had in fact been successful.  I consider that, overall, he was a witness of truth and gave answers as best he could.  On the one area where I have some doubt about his evidence, which is the calling of VU and attempting to go into JBS’ electrical section, I do not consider these overly significant matters when looking at the evidence overall.

44Having accepted the opinions of Dr Blombery and Dr Crock and accepted the Plaintiff’s evidence, I find that the plaintiff has sustained an organically-based injury to the right hand being an organic disorder of pain pathways.  I make the same finding in respect of the left hand.

45I will return to this point in the consideration of the plaintiff’s claim for economic loss.

The plaintiff’s claim for economic loss

46The plaintiff’s claim is to be assessed in accordance with common law principles.  If the plaintiff can demonstrate that he has sustained a loss of earning capacity of more than 40 per cent, he will be successful in obtaining a determination of serious injury under this head.  The first point of debate between the parties was what the plaintiff’s earnings would have been but for the injury.  On this point I find the plaintiff’s evidence that he would have completed his electrical apprenticeship to be strong.  The first part of this is the fact that he completed three out of four years of an electrical apprenticeship. This evidences a strong motivation to pursue a trade qualification. Then his reasons for suspending the apprenticeship were cogent and reasonably explained why he could not continue.  Those reasons were that he became homeless for a period, living in his car and then a men’s refuge.  He explained that to continue his apprenticeship at that stage required not only attendance regularly at work but also to complete university studies alongside his trade training.  That was too much to manage, confronted with a period of homelessness and then living in a refuge.  I accept that reasoning.  It is also clear that he has expressed to a number of people his desire to continue working as an electrician even after his surgeries.  This is most well expressed by the fact that he attempted a return to work with Ausolec in July 2022.  I consider this powerful evidence of his desire to finish his electrical apprenticeship and go on to earn as an electrician.  This is fortified by his statements to Co Work in which he expressed his desire to return to that apprenticeship. 

47Given that I accept the plaintiff’s evidence and given these actual attempts to return, I consider the evidence strongly supports the plaintiff’s case that he would have completed his electrical apprenticeship, most probably sometime after he had gotten over his period of homelessness and being unsettled.  I consider that he would have returned to his apprenticeship and completed the final year by the end of 2020 at the latest. 

48If that were the case, the plaintiff as of 2023 would be a second year fully qualified A Grade electrician.  The evidence of Mr Plese was that of a comparable electrician just beginning their career after being fully qualified.

49Turning to assess the loss of earnings capacity claim in more detail. As Mr Baullo was under the age of 26 as at the date of the injury, his loss of earnings falls to be assessed within the definition of serious injury in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”), particularly sub‑s(2)(e)(ii). That section states:

“the worker (including a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more; …” 

50Here the focus is on the earning capacity. 

51I have found that but for the injury the plaintiff would have completed his electrical apprenticeship and become an A Grade electrician by no later than the end of 2021.  Two pieces of evidence were then submitted by the plaintiff as to what would be his demonstrated earning capacity but for the injury.  The first was the Enterprise Bargaining Agreement (“EBA”) relevant to A Grade electricians.  It demonstrated that for an A Grade electrician performing service maintenance work there would be weekly earnings of $2,156 gross excluding overtime and other allowances.  The EBA contained a figure for an electrical A Grade electrician involved in building and construction work of $2,209.[23] 

[23]PCB 139 and PCB 235

52The next piece of evidence the plaintiff called in aid was an affidavit of Mr Robert Plese.  He swore an affidavit on 7 June 2023.  He was not called for cross-examination.  He was born in June 1998.  He had begun his electrical apprenticeship in approximately 2016.  This was the year after Mr Baullo commenced his.  Mr Plese finished his electrical apprenticeship at the age of 21 in approximately 2019 and once he became fully qualified began working for ABB Australia (“ABB”).  He earned $42 per hour with ABB and did that work for two years until the end of 2022.  He then commenced working with Downer as an A Grade electrician and was earning $57 per hour.  Since that time his hourly rate has increased to $62.50 per hour.  He deposed that each year he would earn about $130,000 gross without overtime but with overtime it was up to $150,000 gross.  In addition, he had the benefit of a company car and fuel.  He finally deposed that an A Grade electrician at Downer in their first year earns $2,091.85 in their first year after being qualified.[24]

[24]PCB 411

53Objection was taken to parts of paragraph 13 and 15 of the affidavit.  I would uphold those objections.

54Looking at the plaintiff’s capacity to earn at present, he currently is employed at Artistic Divan, a furniture company, in a sales administration role. 

55The plaintiff’s case is that he is currently employed in a sales administrative role earning $1,154 gross per week. Of course, the section in the Act focusses on loss of earning capacity, so while figures are useful they are not the end of the analysis. After a consideration of all the evidence, I consider that the plaintiff’s current employment and earnings accurately reflect his earning capacity now and for the foreseeable future. He is a worker who has been involved mainly in manual occupations, such as, as a painter, in an abattoir and as an apprentice electrician. He has had times in administrative roles, but they have only been low grade administrative roles, such as at Pro Health and at Fuse.[25]  He has no formal educational qualifications but seems competent at administrative and clerical work.  The evidence does not suggest that his occupational capacity is much greater than the role that he is presently doing. 

[25]PCB 432-435

56It was suggested by the defendant that the plaintiff will go into IT and particularly cyber security.  The defendant relied on the Plaintiff’s evidence in cross examination that he does data entry work consistently through an 8 hour day and has been coping with that work. Further the Plaintiff gave evidence that he would be willing to do a course in IT if it were offered to him. The difficulty with that submission is that it overlooks the evidence regarding his limitations and difficulties with repetitive use of his hands and arms in his current position.  I have accepted that evidence from Dr Blombery as to his limitations of difficulty with keyboard work.[26]  Particularly I note the Plaintiff gave evidence that the data entry work he does now causes him some problems, such that he needs to take extra breaks, shake his hands and run them under warm water. Dr Blombery has a history of a “lot of keyboard work” and concluded that he would have difficulty with fine, manipulative repetitive tasks.[27] I consider the fact that the Plaintiff is already having difficulty with the current administrative job in combination with the medical opinion of Dr Blombery to support my finding that he is not able to engage in the IT and cyber security field by reason of the more intensive requirement for hand and wrist work on a keyboard than he is presently doing.  Overall I find that he is limited to roles similar to those he is doing now.  This stands in contrast to even the base earnings he would be making as a qualified A Grade electrician on the EBA or award rates.  These are, I consider, an under-representation of his earning capacity.  But for his injuries, he would have been able to do overtime or operate in roles such as those occupied by Mr Plese.  Mr Plese’s earnings already are in excess of the award rate particularly if account is taken of the car and fuel.  On any measure then, a comparison of his current earning capacity at $1,154 against the minimum EBA base rate of $2,156 for an A Grade electrician in a non-construction and service maintenance role yields a result in excess of 40 per cent or more.  I find that this is likely to be the permanent position.  In fact, given the likely projected earnings of an electrician who gains further qualifications and experience, I consider that this loss is likely to grow in the immediate future as a skilled tradesperson outstrips the earning capacity of an administrative clerk.

[26]PCB 347

[27]PCB 349, in response to question 4

57For these reasons I find that the plaintiff has satisfied the terms of s325(2)(e)(ii).

58The parties agreed that if I was to reach such a finding it would qualify the plaintiff for a determination of serious injury for pain and suffering and loss of earnings consequences.  For these reasons I will not consider the issue of pain and suffering separately.