Bazzano v M and M Specialised Loading Pty Ltd
[2014] VCC 1350
•22 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00053
| CHARLIE BAZZANO (aka CARMELO BAZZANO) | Plaintiff |
| v | |
| M & M SPECIALISED LOADING PTY LTD and | First Defendant |
| GALLAGHER BASSETT SERVICES WORKERS COMPENSATION VIC PTY LTD | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 August 2014 | |
DATE OF JUDGMENT: | 22 August 2014 | |
CASE MAY BE CITED AS: | Bazzano v M & M Specialised Loading Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1350 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the right lower limb – loss of earning capacity.
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Hayhill Pty Ltd v Hodge [2006] VSCA 194; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti QC with Mr M X Carey | Slater & Gordon |
| For the Defendants | Mr B R McKenzie | Thomson Geer Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 2 January 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only. The defendants conceded serious injury for pain and suffering in closing addresses.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application lower right limb.
5 The plaintiff relied upon three affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
6 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
13 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
14 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] Grech v Orica Australia Pty Ltd Anor[2] and Hayhill Pty Ltd v Hodge[3] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
[3][2006] VSCA 194
The Plaintiff’s evidence
16 The plaintiff is presently aged fifty-four, having been born in Sicily in March 1960.
17 Having completed Year 10, the plaintiff did two years of an apprenticeship as a motor mechanic. He then worked in that field and later in security and as a truck driver.
18 Prior to starting work with the first defendant, the plaintiff was unemployed because he had a shoulder injury whilst working Queensland.[4] The plaintiff was off work for a while, receiving worker’s compensation.
[4]Transcript (“T”) 13
19 The plaintiff returned to Melbourne in September 2005 and had surgery in November. He had recovered by June 2006 [5]
[5]T41
20 The plaintiff was employed by the first defendant as a truck driver delivering aircraft containers, commencing that job in November 2006.
21 Prior to the incident, the plaintiff was earning between $500 and $1,200 a week, depending on overtime and the type of work he was doing.
22 The plaintiff first worked with first defendant from November 2006 until June 2007, when the truck he was driving down broke down and he was unable to work for the first defendant for about three months.
23 During that time, the plaintiff had to find work elsewhere and worked as a truck driver with Trendy Nominees. In the financial year ending 30 June 2008, the plaintiff earned $11,214 working with Trendy Nominees. The plaintiff was paid $801.00 a week and his hours varied from 3 to 4 hours a day up to 8, and there was an agreed set rate.[6]
[6]T18
24 The plaintiff returned to the first defendant in November 2007 as a permanent truck driver and was in that role on the said date. Had he not suffered injury, the plaintiff would have continued to work permanently for the first defendant.
25 The payslips, following the plaintiff’s return to work until the week he suffered injury, set out as follows:
Pay Date Amount 9 December 2007 $1,082.00 17 December 2007 $1,087.50 22 December 2007 $1,313.00 29 December 2007 $1,182.50 5 January 2008 $909.00
($288 WorkCover)
26 The average of those five weeks is $1,114.80.
27 In his third affidavit, the plaintiff mentioned he had discussions with Michael Mooney, manager of the first defendant, when he returned to work at that stage, that his position was to be permanent and he was offered a contract which would have resulted in him earning $51,000 gross per annum. That was to take place, but did not because of the incident.
28 Michael Mooney got his semi-trailer back and approached the plaintiff to come back to work. The plaintiff wanted some sort of security and that was when the contract was discussed.
29 The contract was discussed despite no reference to it in the plaintiff’s first two affidavits, and the reason for it was because the hours varied so much.
30 The plaintiff would have continued to work for the first defendant had he been offered a contract of $51,000. Further, he would have continued to receive wage increases each year, had he not suffered injury.
31 Prior to the incident, the plaintiff’s hours varied because the work was seasonal in nature. In peak season, at times, he would work 70 to 80 hours a week or sometimes more. In mid season, he would work 40 to 44 hours a week and in low season, maybe only work 20 to 30 hours a week.
32 When working for the first defendant in the low season, the plaintiff did not seek other employment.[7]
[7]T15
33 The plaintiff agreed he would not be working 80 hours a week every week and the arrangement of varying hours suited him.
34 The plaintiff probably with his capabilities pre-accident could have worked 70 to 80 hours a week every week. He disagreed he did not seek out top up work because he could not sustain working at that high level.[8]
[8]T19
35 The plaintiff suffered injury on the said date when attempting to jump to the ground from his truck his foot became caught on the edge of one of the rollers on the back of the truck and his right foot landed awkwardly on the ground (“the incident”).
36 The plaintiff suffered severe and immediate pain and was driven by workmates to hospital, where his foot was x-rayed and put in a cast. He was referred to an orthopaedic surgeon, who suggested no further treatment at that stage.
37 After the incident, the plaintiff was unable to work for about three months and received weekly payments.
38 The plaintiff was then certified fit for light office work; however, the first defendant gave him driving duties, despite the plaintiff’s complaints of ongoing pain. Over the next several months, he suffered from pain and swelling in his foot and his work activities aggravated his condition.
39 The plaintiff became depressed and upset because of his ongoing chronic pain and because of his treatment by the first defendant. He was referred for psychological treatment.
40 On his return to work after the incident, the plaintiff was checking trucks and cargo and he worked as a jockey training another driver. The driver he was training was a bit lazy so the plaintiff virtually had to do most of the job for him.[9] In the first couple of weeks, the plaintiff was doing four to six hours a day, although he was certified only for four and then he was going up to eight hours a day.[10]
[9]T16
[10]T17
41 After working three days full time, the plaintiff advised the first defendant he could not handle full-time duties and he ceased work in May 2008, when his employment was terminated.[11]
[11]T16
42 The plaintiff went to conciliation in June 2008 in respect of his weekly payments. Ultimately, the plaintiff received payments for the maximum period permitted under the legislation.
43 Ultimately, the plaintiff saw another surgeon, Mr Bedi, who gave him injections in his foot and ankle, but they did not help. In November 2009, the plaintiff had foot surgery. Thereafter, he took Panadeine Forte regularly.
44 As of March 2010, when he swore his first affidavit, the plaintiff was in receipt of weekly payments, his claim ultimately being accepted.
45 If he had not suffered injury in the incident, the plaintiff would have continued working, as he liked the job and was a loyal employee. He did not consider he should have been treated and abused the way he was by the first defendant after the injury.
46 As of 2010, the plaintiff would have liked to have returned to work as a motor mechanic but he was scared his foot injury would not enable him to stand for prolonged periods. He would have liked to be able to obtain other qualifications if he could not work in that area, such as in sales in the motor industry, which was more likely to be within his capacity. At that stage, he was awaiting a referral to rehabilitation specialist, Ayres Management.
47 The plaintiff deposed as to his problems with social, domestic and recreational activities and his inability to attend gym because of his ankle problems. He could not attend car shows, which were his interest. He was limited in his gardening and also social activities, especially those involving prolonged standing.
48 It was then very difficult for the plaintiff to live off weekly payments and support his wife and three children, and he wanted to go back to the work that he was capable of doing. He was then suffering pain and limitation of movement in his foot and was hoping that its severe and chronic nature would improve. He was about to commence physiotherapy.
49 The plaintiff swore a further affidavit in August 2014 setting out details of treatment, including hospitalisation in June 2012 for five days when he underwent a ketamine infusion.
50 The plaintiff had further surgery in March 2013, when Mr Bedi fused his foot. He was discharged from Mr Bedi’s care and told to see him again if there was a significant deterioration.
51 The plaintiff continues to see his general practitioner, Dr Tunaley, on a regular basis. The plaintiff has been discharged from physiotherapy, as he has been advised there is nothing further that can be done.
52 The plaintiff’s weekly payments were terminated in about July 2010 and thereafter, he has received Centrelink benefits for either total or partial incapacity.
53 The plaintiff obtained a part-time light duties job with Nino’s and Joe’s Meats Pty Ltd in January 2014 through a friend. The job involves driving a van and delivering meat. The plaintiff agreed the job involves lifting up to 20 kilograms.[12] He is on his feet probably a third of the time at work.[13]
[12]T31
[13]T39
54 The plaintiff is presently paid $20.47 an hour and is working 20 hours a week, which is the maximum he is capable of earning without experiencing increasing symptoms. He is presently earning $409.40 gross per week.
55 The plaintiff initially started working 15 hours a week under his general practitioner’s guidance, and in May 2014, his hours were increased to 20 a week, four days working 5 hours a week.
56 The plaintiff tried to work 25 hours in a week in July 2014, but that attempt was unsuccessful due to increased pain and swelling in his foot. Working a whole week was too much for him.
57 The plaintiff attended his doctor and told him he could not handle this workload and he went back to working 20 hours per week. All he has at this stage is a goal to do the best he can.[14] He would like to get back to full-time hours. He could probably try 30 hours but he did not know how long he would last. He could not predict as to the future.
[14]T35
58 Having worked the 25-hour week, the plaintiff had to take a couple of Panadeine Forte or go to sleep, so virtually that Friday afternoon, as soon as he got home he went straight to bed.[15]
[15]T37
59 The plaintiff would regret increasing his hours because the pain would be more severe at the end of the week and then he would have a bad weekend and he would probably have to cut down his hours the following week.
60 Even on those restricted hours and duties, the plaintiff has ongoing pain and swelling in his foot.
61 It is now over fifteen months since the fusion and the plaintiff believes his foot has stopped improving and that has been the case for some time. He believes his current level of pain and restriction is permanent. He does not think he could work longer hours than he is currently working.
62 By the time the plaintiff completes his 5-hour shift, he is suffering from a significant increase in foot pain. Regularly after work, he simply goes home and takes painkillers and goes to bed or lies on the couch for relief for an hour or two, and for the rest of the day he has to be careful what he does.
63 Whilst the plaintiff tries to limit his painkilling medication, he continues to take Panadeine Forte from time to time - probably two every second day on average.
64 The plaintiff’s foot and ankle pain continues and is constant, although not as bad as before the fusion. The constant pain is like a tearing pain. It is activity related. He now also has a permanent limp due to the fusion and his foot and ankle are permanently swollen. He has a very limited ability to move his foot and ankle and he can no longer run.
65 The plaintiff confirmed the description of his pain as tearing and it was constant and fluctuated between mild and severe.
66 In re-examination, the plaintiff rated severe at an 8 out of 10 and it caused him to limp and his gait got worse and he could not walk as well. The limp gets worse depending on how much work there is.
67 Since the first operation, he has had this level of pain and it continues. His pain has been pretty stable and it is activity related.
68 The plaintiff has developed some leg and back pain because of his altered walking gait. He is limited in his ability to walk for lengthy distances and is restricted in a wide range of domestic activities and those of daily living.
69 The plaintiff can swing his foot up and down but he cannot swing it sideways.[16]
[16]T40
70 During the day at work, if he jolts his foot or puts it under stress, the plaintiff feels an increase in foot pain, particularly on the right side. He understands the fusion did not completely fuse.
71 The plaintiff has problems walking on rough and unstable ground and walking downstairs. Generally, he feels vulnerable on his foot due to the pain and restriction of movement.
72 The plaintiff believes his pain and restriction in his foot is stabilised and he is concerned there may be a further deterioration in the future.
73 The plaintiff was then unable to work due to his surgeries and other forms of treatment until he started his present job in January 2014.
74 Had the plaintiff not suffered injury in the incident, and he had been able to continue in his permanent position over the next three years, he would have received considerable increases in the income he would have earned with the first defendant.
75 The plaintiff is now destined to continue work at his present rate in his current job and he cannot increase the hours because of the severity of his symptoms.
76 The plaintiff was cross-examined about his suitability for a range of jobs suggested to him by Ayres in 2008-2009.
77 The plaintiff thought he would need computer skills as a car salesman. He does not have sales experience and he would probably have to go back to school to do the maths.[17] His computer skills are limited essentially to playing games.[18] He has never had any experience in an office.
[17]T21
[18]T42
78 The plaintiff agreed he has a good understanding of cars. Some form of training was discussed with him to enable him to work as a car salesman. He wanted to do a type of computer refresher course but the insurer denied funding.[19] He had discussed all sorts of areas in the motor industry that he could follow up and try and gain some qualifications.
[19]T22
79 The plaintiff might have said he would be able to get a job as an LP gas unit installer and it might have been in that context that the discussion came up about the training that was refused by the insurer.[20]
[20]T23
80 The plaintiff tried a warehouse management course, organised through Centrelink, but only lasted a month because of the physicality and the long hours he would have to spend on his feet. He would have had problems with lifting, bending and those sorts of things.[21]
[21]T24
81 The plaintiff could not work in security and has not done anything for retraining or following up work in that field because since the fusion, he does not feel up to the standards required in security because he knows it involves long hours, mainly standing on his feet, and he would have to be physically fit and prepared to run.[22]
[22]T25
82 The plaintiff agreed he does not have problems sitting. If he could find a job predominantly seated, he would try it. He does not have qualifications in that sort of area. He thought someone from Centrelink had told him he needed qualifications. Because of this discussion, Ayres pursued more physical type of work.[23]
[23]T26
83 The plaintiff was aware he would need some qualifications as a clerk and other types of office job and he would have no real training and qualifications to pursue that area and that is why applications on his behalf were unsuccessful.[24]
[24]T27
84 There was application made for a few motor vehicle parts interpreter jobs and the plaintiff would have tried if he had been successful. It would have been a similar situation had he been offered a job as a ticket seller and other jobs.[25]
[25]T28
85 The plaintiff would not be good doing a job like a motor vehicle parts interpreter because he would have to stand up doing that job. He has never calculated sales tax, discounts and prices.[26]
[26]T43
86 The plaintiff has no experience working as a general clerk or office assistant.[27] The only experience with money was working at a petrol station years before in the late eighties.[28]
[27]T29
[28]T39
87 The plaintiff thought the problem with a job in a seated position was lack of training and experience.[29] He has made enquiries but no one has helped him along.
[29]T30
Medical treatment
88 The plaintiff underwent a range of investigations prior to both operations
89 Mr Bedi, orthopaedic surgeon, first met the plaintiff on 6 May 2009. At that stage, he reviewed a CT scan of 29 January 2009 which showed loose fragments involving the dorsal navicular region, as well as the calcaneocuboid joint, consistent with previous minor fractures. A bone scan performed around the same time showed increased uptake in the calcaneocuboid and naviculo cuneiform joints.
90 Mr Bedi initially suggested injections with cortisone and anaesthetic. These were performed on 29 August 2009. Following the next review on 23 September 2009, the plaintiff’s lateral-sided pain was unchanged which made him frustrated, and it was determined to go ahead with surgery.
91 The arthroscopy carried out on 10 November 2009 revealed a moderate amount of sinovitis and a thickened tibiofibular ligament. Mr Bedi saw the plaintiff four times in 2010 following that procedure.
92 When Mr Bedi saw the plaintiff in April 2010, the plaintiff was still experiencing some anterior ankle and dorsal mid-foot pain and the main site of tenderness was over the anterior ankle. Mr Bedi suggested repeating cortisone injections and some small heel raises.
93 Mr Bedi next saw the plaintiff in December 2010, when both procedures had provided some benefit. Mr Bedi then raised the option of pain management.
94 On re-examination in July 2011, the plaintiff felt there had been some mild deterioration in his symptoms and the tenderness remained. Further investigations were organised and Mr Bedi referred the plaintiff to Dr Courtney, a pain management specialist.
95 Mr Bedi again operated on the plaintiff on 18 March 2013, performing an arthrodesis of the right talonavicular joint, arthrodesis of the right calcaneocuboid joint, a bone graft and harvesting and debridement of the medial naviculocuneiform joint.
96 At the next appointment in June 2013, x-rays suggested everything appeared to be uniting well and the plaintiff was using a CAM walker.
97 Mr Bedi last saw the plaintiff in October 2013.
98 Overall, the shape was good and the plaintiff felt he was steadily improving. There was less pain than prior to surgery. Mr Bedi was happy for the plaintiff to attend a vocational retraining program, as he felt able, and advised him against any lifting beyond 5 to 10 kilograms for a further three months. The plaintiff was asked to return to see Mr Bedi on an “as needs” basis.
99 Dr Tunaley, general practitioner, first saw the plaintiff when his usual general practitioner was away in July 2013, post fusion.
100 As of March 2014, Dr Tunaley noted the plaintiff had now progressed and could do three to four days a week, five hours per day, as a van driver with lifts and strains to 20 kilograms. He noted the reduction in hours was related to the plaintiff’s work injury and that the plaintiff had the capacity to look at a further increase in hours, but that was also employer dependent.
101 When he saw the plaintiff in July 2014, Dr Tunaley reported that since last year, he had not progressed further and could just tolerate 20 hours per week. It was his understanding the plaintiff had not missed any workdays.
102 Dr Tunaley noted that the plaintiff had now progressed and could do four days a week, five hours per day as a van driver, with lifts and strains to 20 kilograms. He noted that a reduction in hours was related to the work injury. He thought the plaintiff could not do more hours, as he got more pain and swelling. The plaintiff then suffered after this, and found he could not work the next day.
103 Dr Tunaley noted, as an indication of his pain, the plaintiff used Panadeine Forte, but he only took six tablets a week after work. He was not able to answer if the plaintiff’s hours would be able to be increased, but to this point he could not increase his hours.
Medico‑legal evidence
104 Mr Brearley saw the plaintiff in April 2010, prior to the fusion. He diagnosed fractures of the anterior tubercle of the calcaneum and the dorsolateral aspect of the right foot and resultant damage to the talonavicular and calcaneocuboid joint.
105 At that stage, Mr Brearley thought there was a real possibility of the plaintiff developing degenerative osteoarthritic change within those joints.
106 Mr Brearley thought the plaintiff was not capable of returning to work as a truck driver. He considered the plaintiff could carry out most of the employment options suggested by Ayres, working as a sales assistant or service or general clerk, or in despatch and receiving of goods, working as a motor vehicle parts sales assistant and probably as a fitter. He did not think the plaintiff could work as a machine operator, because that would involve standing for longer periods than usual.
107 The plaintiff told Mr Brearley that the first surgery in November 2009 helped to a certain extent but he still had residual symptoms.
108 The plaintiff was re-examined by Mr Brearley in May 2012, having had pain management from Dr Courtney, a cortisone injection from Mr Bedi and the use of a small heel raise. The plaintiff told Mr Brearley then his ankle was more painful than on the previous examination.
109 Mr Brearley then thought the plaintiff was fit for some work whereby he did not have to stand or walk for long periods and there was no heavy lifting and he would have to avoid using ladders.
110 Mr Brearley did not address the plaintiff’s suitability for specified jobs.
111 Mr Brearley re-examined the plaintiff in October 2013 when he told him of the failure of conservative treatment and subsequent fusion surgery, after which he had had a good result.
112 Mr Brearley noted the plaintiff had been given permission by Mr Bedi to return to suitable work 15 hours a week and he was in the process of looking for such work and had been interviewed by CRS.
113 On this occasion, Mr Brearley concluded the plaintiff would never be able to return to his previous occupation and he needed to seek permanently lighter work, whereby he could avoid standing for long periods, much walking and heavy lifting and also repeated bending.
114 Mr Brearley noted the plaintiff had some experience in security and he might end up in some light employment in that industry, and the plaintiff was confident he would find suitable work.
115 There was a further examination in June 2014.
116 The plaintiff then reported occasional pain and swelling in the right foot depending on activity and he had to limp when the day wore on.
117 The plaintiff was working 5 hours a day, four days a week, and did not want to work longer hours because if he did, he would have more pain and swelling, which he had anyway.
118 Mr Brearley noted the fusion had been successful and the plaintiff continued to improve with the passage of time, noting he had started work in January 2014, which he could manage well.
119 Mr Brearley reported the plaintiff said, as time passed, he may be able to increase his hours and maybe even do full time, but Mr Brearley thought that was by no means certain. He noted the plaintiff has some pain and swelling of the right foot at the end of the day, and when he was particularly busy and active, his symptoms were more obvious.
120 The plaintiff was examined by Mr Edwards, foot and ankle surgeon, in July 2012.
121 The plaintiff reported constant daily and fluctuating pain centred on the dorsolateral aspect of his mid and hind foot, which he described as moderate to severe, dull and aching.
122 Mr Edwards thought the plaintiff had suffered a significant fall and hind foot/ mid foot injury, with injuries to the calcaneocuboid and the naviculo cuneiform joints. Mr Edwards then thought it possible the plaintiff would ultimately come to arthrodesis surgery.
123 Mr Edwards re-examined the plaintiff in July 2014.
124 Mr Edwards noted, post fusion, the plaintiff had significant but not complete improvement of symptoms.
125 Mr Edwards noted the arthrodesis limited the inversion and eversion movement of the hind foot. It had reduced but not eliminated pain and it was associated with some altered sensation in the lateral forefoot.
126 It was Mr Edwards’ impression the plaintiff was working to his fullest capacity. In his view, it would seem unlikely the plaintiff would be able to work more than he currently does for any extended period, noting his symptoms were too significant if he did that.
127 At that stage, the plaintiff was working about four hours a day as a van driver.
Vocational evidence
128 Paul Hartley from Vocational Directions carried out a vocational assessment of the plaintiff in April 2012, having interviewed him the previous month.
129 The plaintiff told him of unremitting often severe pain in the right side of the right foot, exacerbated by any pressure and walking, standing or driving for too long.
130 Mr Hartley noted the plaintiff had a very basic level of education with basic literacy and numeracy skills.
131 The plaintiff had been unable to access employment since leaving the first defendant despite the involvement of Ayres and CRS. He had never been provided with any training.
132 Mr Hartley noted the plaintiff advised, with regard to his unremitting pain and consequent disability, his current working hours were at the highest end of his coping skills. He was undertaking duties that were heavier than recommended but ones that fitted his limited vocational experience and skills. He was unable to take analgesia when driving so he had to persevere until he came home to rest and recuperate. He had problems sleeping due to pain and lethargy and must rest on days off and when he came home from work.
133 In Mr Hartley’s view, working longer hours would exacerbate the plaintiff’s pain and disability to higher levels and thus ultimately reduce his ability to work at all.
134 Mr Hartley noted the unskilled and semi skilled jobs suggested all had physical demands that had the potential to exacerbate the plaintiff’s symptoms. He had no relevant experience or skills in many of them and those jobs would similarly attract limited hours of work per week, such as those he was currently working.
135 In Mr Hartley’s view, the lighter or sedentary jobs for which the plaintiff was physically suited are precluded due to his total lack of relevant experience, literacy skills, poor education, basic literacy and numeracy and lack of industry level computer skills. He thought the plaintiff needed to undertake relevant vocational training and could not do so until his poor level of education, Year 9 and non academic in computer skills were addressed.
136 Mr Hartley thought the plaintiff faced very significant barriers to being able to gain, undertake or sustain suitable employment. He noted medical opinion was the plaintiff had a capacity for light hours on a restricted basis.
137 At the age of fifty-four years, Mr Hartley concluded the plaintiff’s injury and sequelae had significantly reduced his earning capacity. He was working full time prior to the incident and now working only 15 hours with no ability to increase those hours. Indeed, it was hoped that the duties he was undertaking do not further exacerbate his pain and right foot and ankle injuries and thus reduce his ability to work or preclude him from the workforce once more.
138 Mr Hartley discussed the plaintiff’s unsuitability for roles such as a truck driver, delivery driver, enquiry clerk, sales assistant, motor vehicle parts and accessories, despatching and receiving clerk, ticket seller, sales assistant, general hardware, general clerk, checkout operator cashier, motor vehicle parts and accessories, plastics production machine operator, product assembler, packer, factor process worker.
Wage details
139 Payslips from Nino’s and Joe’s Meats indicate that from January to April 2014, the plaintiff worked 15 hours a week and in May 2014, increased to 20 hours a week. He is paid $20.47 per hour and receives $409.40 for a 24-hour week.
The Defendant’s evidence
140 The plaintiff’s taxation return for the 2004-2005 financial year set out earnings of $12,844 and DSS payments of $5,236.
141 In the 2005-2006 financial year, the plaintiff’s gross income was $21,588 with a business income of $1,657, making a total of $23,245.
142 In the 2006-2007 financial year, the plaintiff’s gross income was nearly $39,000, with $1,275 DSS payments, making a total of $35,946.
The Defendant’s medical evidence
143 Dr Hwang, specialist occupational physician, reported in February 2010, having examined the plaintiff on behalf of the second defendant. This examination predated the fusion.
144 At that stage, the plaintiff described ongoing persisting pain in the dorsum of his foot as well as the lateral aspect of the ankle. He said that was persistent but lesser in severity than pre-surgery.
145 Dr Hwang thought the plaintiff would be suitable for work that was predominantly seated in nature, although walking for a total of 20 minutes or an hour would be within his capacity. He thought the plaintiff should also avoid uneven ground or climbing steps.
146 Dr Hwang noted that return to work was an important element of rehabilitation and should be considered integral to the plaintiff’s overall treatment. If suitable employment was available, he considered the plaintiff could return to suitable work on a full-time basis and his capacity would be expected to continue improving into the future.
147 Dr Hwang thought a review of work capacity in six months would be appropriate.
148 Dr Hwang considered the NES assessment jobs were suitable, particularly motor vehicle parts and accessories fitter and machine operator, as they were limited to selected environments only where the duties were performed with the flexibility to sit for the majority of time or on a sit/stand arrangement.
149 Mr Weaver, orthopaedic surgeon, examined the plaintiff in January 2011 for the purposes of an AMA assessment. The plaintiff then complained of constant foot pain.
150 Mr Weaver’s overall assessment was that the plaintiff had incurred a genuine minor injury involving the right hind foot region. However, the physical problem was overlain by a huge element of psychological embellishment. He certainly would not be anticipating any alteration in the impairment figure and thought that it had almost certainly stabilised.
151 Mr Ian Jones, orthopaedic surgeon, first saw the plaintiff in November 2011, prior to the fusion. The plaintiff then reported symptoms of pain in the right foot, indicating the front of his right ankle as well as the dorsal aspect of the mid foot region.
152 Mr Jones then thought the plaintiff was likely to continue to experience mid foot pain at least in the short term and in the longer term, there was an increased chance of the plaintiff developing arthritis in the subtalar and mid tarsal joint of his right foot.
153 Mr Jones did not think the plaintiff had the capacity to return to pre injury employment and it was possible he may recover sufficiently to return to driving in the future. He thought the plaintiff was not fit for any work which placed high demands on his right forefoot and subtalar joint and limitations on his requirement to stand and walk could be appropriate. He noted the plaintiff had a current incapacity for work which required high demand on his foot.
154 Mr Jones then believed the plaintiff would be capable of returning to sedentary work. He could not see him returning to work as a motor mechanic but he might be able to undertake sales within the motor industry.
155 On re examination in July 2014, the plaintiff advised he continued to have problems in his right ankle. He had undergone a pain management program, Ketamine infusion and fusion surgery in March 2013.
156 Mr Jones noted the plaintiff was currently working 5 hours, five days a week on a part time basis. His job involved him lifting boxes of meat, some weighing up to 20 kilograms, from the back of his van and stacking them onto a trolley. The trolley was then wheeled into shops or restaurants for a delivery. The plaintiff told Mr Jones he had not had any time off work starting the job.
157 The plaintiff reported pain localised to the outer aspect of his ankle just below the head of the distal fibula. The pain was constant and aggravated by work. He also complained of swelling and not being able to run.
158 Mr Jones thought that the plaintiff’s severe twisting injury was complicated by the development of a Complex Regional Pain Syndrome Type 1. He thought it likely the plaintiff would continue to experience varying degrees of pain involving his right foot and ankle and that was unlikely to change in the long term.
159 Mr Jones considered the plaintiff did not have the capacity to do his pre-injury job and he doubted he would ever recover sufficiently to return to it. Ideally, he thought the plaintiff would be best suited to sedentary-type work. Otherwise, he would manage relatively light low demand delivery employment in spite of this aggravating his foot pain.
160 Mr Jones thought the plaintiff had a permanent incapacity for work which required prolonged standing, walking – particularly on rough or uneven ground – squatting, kneeling or climbing stairs or ladders on a repetitive basis.
161 In Mr Jones’ view, the plaintiff is capable of carrying out his full-time work at his current level and he believed that he was working to the limit of his physical capacity in terms of his right foot condition.
162 Mr Jones later advised he did not believe the plaintiff was capable of working full time in his current delivery-driving role. He noted the plaintiff currently reported working about 25 hours a week, which, in light of his foot condition, Mr Jones believed was probably the limit of his standing, walking and carrying capacity, and he did not believe the plaintiff had the capacity of increasing his hours in that job.
163 Mr Jones thought the plaintiff was capable of full-time suitable employment with limits on his requirement to stand in one place, walk long distances – particularly over rough ground – climb stairs or ladders, despite his foot complaints. He would basically be limited to clerical work with short periods of sitting interspersed with walking and light carrying.
164 Noting the NES vocational report, Mr Jones thought the plaintiff would be capable of full-time work as an enquiry customer service clerk, information desk clerk, sales clerk, and possibly receiving and despatch clerk, depending on the amount of lifting and carrying; however, it was likely he could only carry out such work on a part-time basis.
165 Mr Jones thought the plaintiff would be capable of full-time work as a rental sales person and probably a motor vehicle parts interpreter, although the amount of standing, walking and lifting was not specified. Mr Jones believed the plaintiff would be capable of undertaking the full-time job of a ticket seller and probably that of a sales assistant, although there was insufficient information in the job description to outline the amount of standing, walking and carrying involved in stacking and displaying items, checking stock or participating in stocktaking.
Vocational evidence
166 An NES vocational assessment report completed in February 2008 identified suitable employment options in the following order of priority: enquiry; customer service clerk; information desk clerk; sales clerk; receiving and despatch clerk; rental sales person; parts interpreter; ticket seller and retail sales person.
167 There was a further NES refresher assessment report and plan of July 2009 where the identified jobs were: sales assistant (trade products and services); enquiry; customer service clerk; information desk clerk; general clerk; office assistant; despatching and receiving clerk; motor vehicle parts interpreter; cashier; motor vehicle parts and accessories fitter; example LP gas unit installer and machine operator.
Occupation
Gross Earnings per Week
Enquiry – information clerk
$842.00
Sales clerk
$774.00
Despatch and receiving clerk
$1,037.00
Rental sales person
$793.00
Motor vehicle spare parts interpreter
$834.00
Ticket seller
$788.00
Sales assistant
$665.00
General clerk – office assistant
$870.00
Cashier
$649.00
Motor vehicle parts and accessories fitter
$700.00
Machine operator
$809.00
Overview
168 It is not disputed the plaintiff suffered a compensable injury to his right lower limb in the incident. That condition has required two operations, the most recent a fusion in 2013.
169 Pain and suffering was conceded in closing addresses by counsel for the defendants.
170 The only issue in dispute is whether the plaintiff has suffered the requisite loss of earning capacity of 60 per cent.
171 The plaintiff is a relatively uneducated man, having completed Year 9. He has no formal trade qualifications, although he did two years of a motor mechanic apprenticeship.
172 The plaintiff’s work history has been one of manual labour in various fields, with no office or sedentary work experience. He has limited computer training, having done a basic course, with his computer use limited mainly to playing games.
173 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[30]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[30](2010) 31 VR 1 at paragraph [12]
174 I found the plaintiff to be a truthful, credible witness who did not overstate his level of restriction and disability. No attack was made on the plaintiff’s credit by counsel for the defendants.
Loss of earning capacity
175 Having found a compensable injury and the narrative requirements of pain and suffering conceded by the defendants, to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
176 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
177 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
178 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
179 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
180 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[31]
[31]See Barwon Spinners & Ors v Podolak (supra) at paragraph [70]
181 I am therefore required to determine a “without injury” earnings figure.
182 A variety of scenarios were posed by counsel for the plaintiff as to the figure which most fairly represented the plaintiff’s earning capacity had he not been injured.
183 The highest figure suggested was based on the plaintiff’s weekly earnings in the four weeks prior to the incident, in which the plaintiff conceded was in the peak period when he was working 70 to 80 hours a week. An average of those figures is $1,166.25.
184 In the alternative, it was submitted $51,000 was an appropriate figure, as this was the sum offered to the plaintiff on a contract basis on his return to the first defendant’s employ in November 2007. The plaintiff was advised that rate would encompass the varying hours worked during the full season.[32]
[32]T58
185 It was submitted the plaintiff’s evidence in this regard should be accepted, as it was logical a flat rate would be agreed upon, given the varying hours worked by him in the different seasons and his desire for job security having had his employment with the first defendant interrupted earlier.[33]
[33]T60
186 Sixty per cent of $51,000 is $30,600 or $588.00 per week.
187 A third alternative was the plaintiff’s earnings at Trendy – $801.00 per week. Sixty per cent of which is $480.00 per week.
188 Counsel for the defendants submitted the most realistic assessment was based upon the plaintiff’s taxable income in the three financial years prior to injury, submitting that the plaintiff did not have a good earning record, with earnings as low as $12,873 in the 2004-2005 financial year.[34] The most generous figure was $34,870 in the 2006-2007 financial year. An alternative approach would be to use the plaintiff’s earnings at Trendy.[35]
[34]T13
[35]T51
189 Counsel for the plaintiff submitted the plaintiff’s income in those earlier years should be ignored because of the interference with his earning capacity due to his shoulder injury.[36]
[36]T58
190 Counsel for the defendants submitted that the plaintiff should not be accepted about the $51,000 proposed contract, given Mr Mooney’s response to the plaintiff’s injury claim the following year and the fact that that proposal had never been put into practise. Further, the proposed contract was first mentioned in the plaintiff’s third affidavit.[37]
[37]T53
191 It was also submitted that the first defendant has not been in a position to respond to that assertion;[38] however, no adjournment was sought to file affidavit material in reply on this issue.
[38]T54
192 In my view, had he not been injured, the plaintiff had the capacity to earn about $1,000 per week, whether pursuant to the proposed contract or on the weekly figures earned in the period leading up to the incident. Whilst he was working 70 to 80 hours per week at that time and not during other low and middle seasons, clearly the wages paid in those weeks were not assessed purely on an hourly rate.
193 I accept the plaintiff’s explanation as to the proposed contract, having just returned to the first defendant’s employ after a period at Trendy, where he was paid a fixed weekly rate, regardless of hours worked. Whilst the contract had not come into operation, the incident occurred only a matter of weeks later.
194 The plaintiff’s lower income in the three years prior to the incident included periods when he was off work because of his shoulder injury and do not reflect his earning capacity but for injury.
195 Taking into account all the evidence, in my view, the figure that most fairly reflects the “without injury” earnings capacity is that under the proposed contract – 60 per cent of which is $588.00 per week.
196 The next issue for determination is what the plaintiff is capable of earning at present and in the foreseeable future.
197 I accept the plaintiff is a hardworking man with a good work ethic. He had returned to work after his earlier shoulder surgery and worker’s compensation claim and worked long hours with the first defendant.
198 The plaintiff was keen to continue to work with the first defendant when the truck became available again, and I accept he would have done so on a permanent basis had he not been injured.
199 These factors demonstrate the desire of the plaintiff to work to his maximum capacity, which I accept is 20 hours per week for the foreseeable future.[39]
[39]T59
200 Whilst it was submitted by counsel for the defendants that it was early days and the plaintiff could not predict the future and say he could work no more than 20 hours, having already increased his work load by 25 per cent when he increased from 15 to 20 hours,[40] it is now eighteen months since the fusion surgery and the plaintiff’s evidence has been there has been no change in his condition in the last six months or so.
[40]T52
201 Further, there is no suggestion in any of the medical reports of any potential improvement in the plaintiff’s condition and a resultant capacity to work for further hours. His condition has stabilised at present. The consensus of the medical opinion is that the plaintiff’s prognosis is poor at the age of fifty-four.
202 Significantly, the plaintiff has attempted to work 25 hours a week in recent times, as he described to Mr Jones. However, he was not able to do that successfully, reporting this situation to his general practitioner and thereafter resuming working 20 hours a week.
203 In those circumstances, I do not accept Mr Kudelka’s “hope” that the plaintiff will increase his hours to 30 hours by the end of the year.
204 I accept that the plaintiff is able to work four consecutive days for 5 hours, although with some problems. This arrangement enables him to have a three-day break.
205 Should the plaintiff work more than four days in a row and have a shorter break, he would experience pain over the weekend and then have to go back to reduced hours the next week, as was the case in July 2014.
206 I accept the plaintiff is motivated to work and would work further hours if he had the capacity to do so.
207 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
208 NES suggested various suitable jobs in 2008 and 2009 before the plaintiff has undergone two major surgical procedures, the most recent being a fusion in March 2013 and also ketamine infusions and cortisone injections.[41]
[41]T57
209 There has been no vocational assessment conducted by NES subsequent to those surgical procedures taking into account the plaintiff’s current condition. Therefore, obviously, there is no medical opinion directly in this regard.
210 Mr Hartley carried out a vocational assessment on the plaintiff’s behalf in 2014, subsequent to all medical procedures and after the plaintiff had commenced his current job.
211 Mr Hartley noted the unskilled and semi-skilled jobs suggested all had physical demands that had the potential to exacerbate the plaintiff’s symptoms. The plaintiff had no relevant experience or skills in many of them and those jobs would similarly attract limited hours of work per week, such as those he was currently working.
212 In Mr Hartley’s view, the lighter or sedentary jobs for which the plaintiff was physically suited are precluded due to his total lack of relevant experience, literacy skills, poor education, basic literacy and numeracy and lack of industry level computer skills. He thought the plaintiff needed to undertake relevant vocational training and could not do so until his poor level of education – Year 9 – and non-academic in computer skills were addressed.
213 I am satisfied the plaintiff does not have the skills or experience to work in the sedentary roles suggested.
214 Whilst Ayres was involved in the plaintiff’s rehabilitation in the late 2000s and Centrelink in more recent times, no job has been offered to the plaintiff of this nature, despite his willingness to try.
215 Further, his attempt at retraining was unsuccessful, with the plaintiff being unable to complete a warehouse manager’s course because of the level of physical activity required.
216 Of significance, spending two-thirds of his 5-hours shifts sitting, the plaintiff is unable to work further hours and experiences increased pain.
217 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
218 Working 20 hours at the present rate ($20.47 x 20 = $409.40), the plaintiff clearly suffers the requisite loss based on both the Trendy figure ($480.00) and the weekly amount pursuant to the proposed contract ($588.00).
219 Accordingly, I am satisfied the plaintiff has suffered the requisite loss of earning capacity and I grant leave to bring proceedings for loss of earning capacity, pain and suffering having already been conceded.
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