Beerling v Tempo Development Group Pty Ltd
[2024] VCC 1090
•29 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-01037
| RYAN BEERLING | Plaintiff |
| v | |
| TEMPO DEVELOPMENT GROUP PTY LTD (ACN 120 403 367) | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 February 2024 | |
DATE OF JUDGMENT: | 29 July 2024 | |
CASE MAY BE CITED AS: | Beerling v Tempo Development Group Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1090 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325 and s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Weldemichael v ID Sales & Repairs Pty Ltd [2019] VSCA 68
JudgmentLeave granted to commence common law proceedings for pain and suffering and loss of earning capacity damages.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Saunders with Mr P Santamaria | Just Injury Lawyers |
| For the Defendant | Mr T Storey | Lander & Rogers |
HER HONOUR:
Introduction
1The plaintiff, Ryan Beerling, is a forty-five-year-old man who injured his lower back on 17 February 2020 whilst working on a worksite in the course of his employment with the defendant, Tempo Development Group Pty Ltd (“the work injury”).
2Mr Beerling brings this application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) seeking leave to issue proceedings for pain and suffering damages and pecuniary loss damages.
3At the hearing, Mr A Saunders and Mr P Santamaria of Counsel represented Mr Beerling. Mr T Storey of Counsel appeared on behalf of the defendant.
4The application initially relied on sub-paragraphs (a) and (c) of the definition of “serious injury”.
5At the commencement of the hearing, Mr Saunders informed the Court that Mr Beerling relied upon sub-paragraph (a) only of the definition of “serious injury”.
6The relevant impairment of body function is the spine.
7In relation to pain and suffering, Mr Beerling must prove, on the balance of probabilities, that:
· the work injury arose out of or in the course of his employment or was due to the nature of his employment with the defendant;
· the work injury with its resulting impairment must be “permanent,” that is, permanent in the sense that it is “likely to last for the foreseeable future”;[1]
· the consequences of the work injury to him must be “serious,” that is, when judged by comparison with other cases, in the range of possible impairments, they can be fairly described as being more than significant or marked, and as being at least very considerable[2] (the “narrative test” or “range”).
[1] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
[2] Section 325(2)(b) and s325(2)(c) of the Act
8For Mr Beerling to succeed in his claim for loss of earning capacity, he must establish, on the balance of probabilities, that:
(a) his loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable (“the narrative test”); and
(b) he has a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Act (the current “loss of earning capacity” threshold); and
(c) after the date of the hearing, he will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more as set out in s325(2)(e)(ii) of the Act (“permanent loss of earning capacity” threshold).
9The parties agreed that the relevant “without injury” figure for the purposes of establishing current loss of earning capacity was $55,057 gross per annum, 60 per cent of which is $33,034 gross per annum which equates to $635 weekly.[3]
[3]Transcript (“T”) 107, Lines (“L”) 16-24
10Further, the psychological or psychiatric consequences of the physical injury cannot be considered in this case.[4]
[4]Section 325(2)(h) of the Act
What are the issues in dispute?
11The defendant identified two substantive issues:
· range
· whether Mr Beerling met the statutory test for economic loss.
What is not in dispute?
12The defendant did not dispute that the work incident occurred and agreed that a WorkCover claim had been made and accepted.
The hearing
13The application proceeded in the usual way.
14Mr Beerling tendered affidavits, radiology, medical records, medico-legal reports, medical certificates, and he also produced a chronology.
15The defendant tendered medico-legal reports, vocational assessment reports, job-seeking review reports and labour market analysis material.
16Only Mr Beerling gave oral evidence and was cross-examined.
17I have considered all the tendered evidence, Mr Beerling’s oral evidence, the chronology, and the oral and written submissions of Counsel, but I shall only refer to the materials to the extent necessary in these reasons.
Summary
18For the reasons that follow, Mr Beerling is granted leave to commence proceedings for pecuniary loss damages. Such leave also entitles Mr Beerling to claim for pain and suffering damages.[5]
[5]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Background
19Mr Beerling lives in a de facto relationship. He has no children of his own, but his partner has children from a previous marriage.
20He completed secondary school in 1996. He initially worked with his father, who was a mechanic, but he did not obtain any formal qualifications. He then worked in manual labouring type jobs.
21He commenced working for the defendant as a general labourer in 2013. It was asserted that he worked for the defendant as an “unqualified carpenter”.
Pre-existing injuries
22Prior to the work injury, Mr Beerling sustained a number of other injuries.
23In 2005, when aged twenty-seven, he had surgery to repair a torn cartilage in his right knee.
24In 2017, he had a motorcycle accident in which he broke his right leg. He had two operations. The first operation, in 2017, was to insert a rod into his femur. The second operation, in September 2019, increased the thickness of the rod to assist with bone-on-bone pain.
25Mr Beerling told Dr Horsley, at a medico-legal examination in July 2023, that he was off work for six weeks after each operation. After the second operation, he initially returned to work with the defendant, truck driving and picking up rubbish and dirt. He obtained a medical clearance in December 2019 and returned to carpentry duties with the defendant.
The work injury and treatment
26On 17 February 2020, Mr Beerling attended a worksite at Beleura Hill, Mornington. It was a large worksite where four single storey houses were being constructed. Retaining walls were being built using “Penta blocks”. Mr Beerling was unloading a wheelbarrow of “Penta blocks” when he experienced sudden pain in his lower back.
27Mr Beerling has not worked since 17 February 2020.
28After experiencing ongoing back pain, Mr Beerling underwent a microdiscectomy on 3 September 2020, performed by his treating orthopaedic surgeon, Mr John Choi.
Post-incident injuries
29In mid-2020, Mr Beerling had carpal tunnel release surgery on his right hand.
30Mr Beerling suffered heart attacks in November 2020 and was placed on medication. He had a stent implanted in late 2020.
31He had further surgery on his right hand to repair an injured nerve in May 2021.
32In late 2022, Mr Beerling had carpal tunnel release surgery on his left hand.
Mr Beerling’s Affidavits
33Mr Beerling tendered three Affidavits sworn on 29 September 2022,[6] 18 July 2023[7] and 23 February 2024.[8]
[6]Plaintiff Exhibit P1, Plaintiff’s Further Amended Court Book (“PCB”) 3-10
[7]Plaintiff Exhibit P2, PCB 11-13
[8]Plaintiff Exhibit P3, PCB 16-20
34In his first Affidavit he said that before 17 February 2020, his broken leg “was starting to come good, and I was beginning to get a bit of rhythm back to my life and work”.[9]
[9] Plaintiff Exhibit P1, PCB 5, paragraph [14]
35He deposed to having ongoing back pain and experiencing flare ups every two weeks or so. He said the flare ups put him out of action for a day or two. He said he found it difficult to get to sleep and his sleep was interrupted by pain.
36He deposed to avoiding heavy gardening work but said he participated in other household activities such as cleaning.
37He has not tried to return to motorcross motorbike riding. The last time he did such riding was when he had the motorbike accident in 2017.
38In his second Affidavit, dated 18 July 2023, he confirmed he had previously discussed further surgery with Mr Choi but that he did not know much about the operation other than it sounded serious.
39In his third Affidavit, dated 23 February 2024, he said that he had spoken to his general practitioner (“GP”) about the proposed surgery and decided not to proceed with it.[10]
[10]Plaintiff Exhibit P3, PCB 18, paragraph [13]
40Mr Beerling commenced a pain management program in July 2023, but did not complete the program as he did not feel it helped much. He also said that as his weekly payments stopped around the time of his participation in the program, it was financially difficult for him to attend the sessions.[11]
[11] Plaintiff Exhibit P3, PCB 17, paragraph [7]
41Mr Beerling said that his current medication consisted of:
· Tapentadol, once per day, prescribed by his GP, Dr Li;
· Palexia, once to twice per day, prescribed by Dr Li. Mr Beerling said that he runs out of Palexia towards the end of the month and is in more pain and functions less well at that time;
· Amitriptyline, nightly (the prescriber was not identified);
· Ketamine, taken intermittently when he could afford it, prescribed by Dr Shirazi (Rehabilitation Physician); and
· Panadol Osteo.[12]
[12] Plaintiff Exhibit P3, PCB 17, paragraph [10]
42In addition, he said he has “one or two” smokes of marijuana to deal with his pain and assist with sleep.
Mr Beerling’s medical evidence
Radiology
43The plaintiff tendered four MRI scans of the lumbar spine dated 8 March 2020, 31 July 2020, 22 October 2020 and 7 September 2021, as well as an x-ray of the lumbosacral spine dated 7 September 2021.[13]
[13]Plaintiff Exhibit P4, PCB 21-26
44Given that there is no dispute in this case as to the nature of the initial injury or the initial diagnosis, there is no need to discuss the radiology further.
Mr Beerling’s treating doctors
Mr John Choi, Orthopaedic Surgeon
45Mr Beerling tendered a report from Mr Choi dated 28 September 2022.[14]
[14]Plaintiff Exhibit P5, PCB 27-32
46Mr Choi performed the surgery on 3 September 2020, and he opined that the surgery was “highly successful and relieved his leg pain … for an approximate period of 9 months”.[15]
[15] Plaintiff Exhibit P5, PCB 27
47Mr Choi recommended pain management, conservative treatment with exercises and therapy and activity modifications. In addition, Mr Choi offered further surgery in the form of a hybrid anterior lumbar interbody fusion (ALIF) at L5-S1 and a total disc replacement at L4-5.
48Mr Choi opined that Mr Beerling's prognosis was poor. He had significant neuropathic and axial back pain resulting from the disc injury.
49In September 2022, Mr Choi opined that Mr Beerling was unable to work in his previous role as a carpenter. Mr Choi was under the impression that Mr Beerling was working reduced hours on partial duties. The source of this information is unclear.
50Mr Choi did not comment on capacity for alterative employment or work restrictions.
St John of God Hospital Pain Management
51Mr Beerling tendered a joint report dated 17 July 2023 prepared by Dr Bruce Shirazi (Rehabilitation Physician), William Fordham (Physiotherapist), Tim Fletcher (Occupational Therapist) and Dr David Tierney (Psychologist).[16]
[16]Plaintiff Exhibit P9, PCB 143-145
52This report confirmed that Mr Beerling attended four weeks of the six-week pain management program in July 2023. No final assessments were made.
Medical Certificates
53Mr Beerling tendered three Certificates of Capacity from Dr Li dated 1 June 2023, 16 June 2023 and 17 July 2023.[17]
[17]Plaintiff Exhibit P10, PCB 146-152
54The Certificates are confusing. Each Certificate recorded a diagnosis of “Intervertebral disc disease secondary to work place injury in Feb 2020 and another in June 2020”. This is the only reference to a second workplace injury.
55The Certificates provide a capacity assessment which noted that Mr Beerling could sit, stand/walk, kneel, lift, and move his neck, as well as bend and squat, with modifications, and lift less than 5 kilograms. It was stated that his attention, concentration and judgement were affected by depression and that Mr Beerling was to attend regular physiotherapy and continue with pain specialist, psychiatrist, and psychological review.
56It appears on a fair reading, the Certificates express the opinion that Mr Beerling was incapacitated for employment due to a combination of physical and psychological/psychiatric conditions.[18] It is not possible to make any further findings in relation to the Certificates in the absence of any other evidence from Dr Li.
[18]The defendant did not raise disentanglement issues
Observations regarding medical material from treating doctors
57Mr Beerling did not produce any reports from any prior or current treating GPs. The only evidence the Court had from Dr Li were the medical certificates (which are discussed above),[19] despite Mr Beerling reporting that Dr Li continues to prescribe him a variety of medications for his back pain. No explanation was provided about this omission.[20]
[19]Paragraphs [53]-[56]
[20] T180, L9-10.
Mr Beerling’s medico-legal reports
Dr Saleem Khan, Consultant in Rehabilitation and Pain Medicine
58Mr Beerling tendered three reports from Dr Khan dated 5 October 2022, 15 June 2023 and 7 December 2023.[21]
[21]Plaintiff Exhibit P6, PCB 33-46, PCB 97-109 and PCB 155-169
59Dr Khan’s ultimate diagnoses were axial somatic lumbar back pain due to disc degeneration predominantly at L4-5 and L5-S1 and neuropathic right leg pain presumably due to ongoing right L5 nerve root irritation or central sensitisation.
60Dr Khan’s initial opinion regarding Mr Beerling’s capacity for employment was guarded unless there was a significant improvement in his condition.
61When Dr Khan reviewed Mr Beerling in June 2023, he considered that Mr Beerling had no meaningful capacity for suitable future employment on a reliable and consistent basis.
62Dr Khan’s opinions as to the suitability of each of the five jobs relied upon by the defendant are discussed below.
Dr James Rowe, Occupational Physician
63Mr Beerling tendered a report from Dr Rowe dated 19 October 2022.[22] Mr Beerling reported low back pain with radiation to the right buttock, lateral thigh and down to the foot. His symptoms were aggravated by prolonged sitting and standing, driving, lifting, bending and twisting.
[22]Plaintiff Exhibit P7, PCB 47-57
64Dr Rowe diagnosed a L5-S1 disc protrusion with contact of the S1 nerve roots and a L4-5-disc protrusion with contact of the right L5 nerve root, without compression. He opined that a chronic pain syndrome had developed. He said this was very troubling as it had long-term implications for a difficult and protracted recovery.
65Whilst he does not specifically say so, I find it more likely than not that Dr Rowe considered the chronic pain syndrome had an organic basis given that his findings on clinical examination included restrictions on right-sided straight leg raise and 4-centimetre wasting of the right thigh and calf.[23]
[23]It is not clear whether the muscle wasting related to the earlier right femur injury
66In October 2022, Dr Rowe opined that Mr Beerling may have a limited capacity for suitable, sedentary employment on a part-time basis. He considered that there would be restrictions on lifting, pushing, pulling, crouching, kneeling, bending, twisting, squatting, sitting and standing, as well as working on ladders and platforms and driving long distances.
67Dr Rowe was not asked to comment on the suitability of the five jobs relied upon by the defendant.
Dr Robyn Horsley, Occupational Physician
68Mr Beerling tendered two reports from Dr Horsley, dated 19 July 2023 and 13 December 2023.[24]
[24]Plaintiff’s Exhibit P8, PCB 86-96 and PCB 121-132
69In her July 2023 report, Dr Horsley noted that Mr Beerling had commenced a Pain Management Program at St John of God Hospital. Dr Horsley considered Mr Beerling’s prognosis to be guarded and that he had no capacity for work.
70In December 2023, Dr Horsley noted the emergence of new symptoms down the left leg. She opined that Mr Beerling gained little benefit from the pain management program, and his functional tolerances had diminished since her last assessment of him in July 2023.
71Dr Horsley said that Mr Beerling presented in a poorer state in December 2023 than he had in July 2023.
72Dr Horsley considered pro-active management was required and she recommended that the following treatment options be undertaken:
· a further MRI scan of his lumbar spine which should be reviewed by an orthopaedic surgeon;
· a referral to a psychologist for counselling from the cognitive behavioural perspective;
· a referral to a psychiatrist for a review of his medication and to discuss his cannabis intake; and
· a review of his overall medication.
73Dr Horsley’s opinion as to work capacity in December 2023 was that “at this point in time, with his limited functional tolerances, general presentation, and mental health issues, I believe that he has no current realistic or reliable capacity for work”.[25]
[25] Plaintiff Exhibit P8 at PCB 132
74Dr Horsley opined the following work restrictions applied to Mr Beerling’s lumbar spine alone:
· Avoidance of repetitive overreaching, repetitive pushing and pulling, truncal rotation, static postures involving the lumbar spine, working in awkward and confined spaces, repetitive bending and lifting, lifting items greater than 8 to 10 kilograms except on an occasional basis, and lifting items up to 8 kilograms on a repetitive basis;
· Good manual handling technique, even when lifting light items
· Variation between sitting and standing; and
· Access to a sit/stand workstation in an office-based environment.
75Dr Horsely considered that Mr Beerling could work in a more sedentary role which might be office based.
76Dr Horsley’s opinions as to the suitability of each of the five jobs relied upon by the defendant are discussed below.
The Defendant’s medical material
Treating doctors
Peninsula Health
77The defendant tendered a record of Peninsula Health dated 28 March 2022[26] and cross-examined Mr Beerling about its content. This line of cross examination appeared to be an attack on Mr Beerling’s credit, but, in my view, it did not go anywhere.
[26]Defendant Exhibit D16
78The defendant made no submissions about Mr Beerling’s credit. Therefore, this material is of no relevance to this application.
The Defendant’s medico-legal reports
Associate Professor Bruce Love, Orthopaedic Surgeon
79The defendant tendered a report from Dr Love dated 24 May 2021.[27]
[27]Defendant Exhibit D1, Defendant’s Court Book (“DCB”) 4-13
80Dr Love diagnosed a prolapsed intervertebral disc. He noted that Mr Beerling was recovering from surgery and suggested that his work capacity should be reviewed in three months’ time. Dr Love opined that Mr Beerling could return to work in modified duties with a progression of hours.
81Dr Love was not asked to comment on the suitability of the five jobs identified by CoWork.
Dr Barry Slon, Pain Management Physician
82The defendant tendered two reports from Dr Slon dated 4 April 2023 and 8 September 2023.
83In his first report, Dr Slon diagnosed mechanical back pain with resolution of previous L5-S1 disc compression of L5. There was evidence of loss of sensation in L5 and S1.
84Dr Slon opined:
“He could potentially return to highly modified or alternative duties and hours noting that pushing and pulling would be impaired, bending and lifting would be impaired and he would have to be accommodated with regard to sit or stand for a maximum of about 30 minutes each.”[28]
[28] Defendant Exhibit D2, DCB 34
85Dr Slon said that Mr Beerling:
“… does have current work capacity for suitable employment provided this was of a light duties description. He [Mr Beerling] believes that he has no current work capacity.”[29]
[29] Defendant Exhibit D2, DCB 35
86In April 2023, Dr Slon considered that Mr Beerling had the capacity to return to work as a handyman, a building inspector, a counter hand/sales assistant in building supplies and a despatch and receiving clerk. He considered that Mr Beerling would not be able to return to work as a carpenter or work as a store person.
87Dr Slon’s opinions as to the suitability of each of the five jobs in the CoWork Reports are discussed below.
Dr Joseph Slesenger, Occupational Physician
88The defendant tendered two reports from Dr Slesenger, dated 10 August 2023 and 18 January 2024.[30] Dr Slesenger examined Mr Beerling in person on 20 July 2023 for the purposes of the report dated 10 August 2023. Dr Slesenger prepared a supplementary report dated 18 January 2024. There was no second examination.
[30]Defendant Exhibit D3, DCB 39-57 and DCB 59-67
89Dr Slesenger diagnosed a soft-tissue injury to the lumbar spine, aggravation of pre-existing degenerative disease (which led to surgery) and chronic low back pain with radiating features but found no evidence of radiculopathy.
90Dr Slesenger opined that there was a functional element to the presentation.[31]
[31]Dr Slesenger was the only doctor to express this view
91Dr Slesenger opined that Mr Beerling retained a capacity for suitable employment considering his lumbar spinal impairment alone.
92The following work restrictions applied, based on Mr Beerling’s lumbar spinal impairment:
· No push, pull, carry, or lift over 10 kilograms
· Avoid repetitive bending or twisting, prolonged static postures, and exposure to whole body vibration
93Dr Slesenger’s opinions as to the suitability of each of the five jobs in the CoWork reports are discussed below.
What injury was sustained on 17 February 2020?
94Mr John Choi, treating orthopaedic surgeon, described the work injury as a an L5 disc protrusion, causing L5 radiculopathy – he also described it as a disc extrusion at L5-S1 which was indenting the right S1 nerve root which led to the need for surgical intervention. Post surgery, Mr Choi refer to ongoing disc problems with evidence of prior decompression.
95Dr Khan agreed with the description of the initial back injury but said it was likely that Mr Beerling had developed a chronic pain syndrome. Dr Khan did not specifically state whether he believed the pain syndrome was organically based. At no time did he suggest that there were psychological factors driving the chronic pain syndrome, I have therefore inferred that he accepted that there was an organic basis for the pain syndrome.
96Dr Rowe diagnosed a L5-S1 disc protrusion with contact of the S1 nerve roots and a L4-5-disc protrusion with contact of the right L5 nerve root, without compression which led to the development of a chronic pain syndrome.
97Dr Horsley diagnosed the initial disc injury which led to the development of neuropathic and radicular pain.
98In contrast, Dr Slon diagnosed mechanical back pain with resolution of previous L5-S1 disc compression of L5 – this was despite him finding evidence of loss of sensation in L5 and S1.
99Dr Slesenger diagnosed a soft-tissue injury to the lumbar spine but accepted there had been an aggravation of pre-existing degenerative disease (which led to surgery). Dr Slesenger found no evidence of radiculopathy.
100I prefer the opinions of Mr Choi, Dr Khan, Dr Horsley and Dr Rowe, and I find that the initial injury was a disc injury to L5-S1 which led to the spinal surgery in September 2020. I accept that that Mr Beerling has developed post-surgical neuropathic pain which particularly affects his right leg.
101I also accept the opinions of Dr Khan, Dr Horsley and Dr Rowe that Mr Beerling has developed an organically-based chronic pain syndrome.
102I prefer these opinions over those expressed by Dr Slon – who does not explain the significance of his clinical findings of sensation loss, and the opinion of Dr Slesenger, who does not concede the initial disc injury at all.
Loss of earning capacity
103Mr Beerling’s physical capacity to perform various activities was the central issue in relation to the loss of earning capacity claim.
104It was Mr Beerling’s primary case that he was totally incapacitated for all employment.
105The defendant asserted that there are five alternate roles which are “suitable employment” for Mr Beerling.
Suitable employment
106To support its assertion, the defendant relied upon two reports of Kate Roma, Occupational Therapist, of CoWork dated 16 June 2023[32] (“the first CoWork report”) and 20 December 2023[33] (“the second CoWork report”) as well as the individual Worksite Assessment & Task Analysis (“WATA”) completed by Ms Roma. The defendant also relied upon a series of reports from Recovre.[34]
[32] Defendant Exhibit D14
[33] Defendant Exhibit D15, DCB 192
[34]Defendant Exhibit D4-D13, DCB 68-134
107The jobs were:
· Spare Parts Interpreter
· Retail Sales Assistant (hardware, automotive)
· Bicycle Mechanic
· Rental Salesperson/Hire Controller[35]
· Building Inspector/Pre-Purchase Building Inspector[36]
[35] Defendant Exhibit D14
[36] Defendant Exhibit D15
Plaintiff’s submissions on suitable employment
108Lead Counsel for Mr Beerling submitted the following:
· no offer of retraining had been made to Mr Beerling;
· Mr Beerling was totally and permanently incapacitated, he had no current work capacity, he was not fit for his pre-injury duties and was not fit for any manual work;
· Mr Beerling had not been actively searching for jobs because of his own perception of his work capacity. Mr Beerling relied on Dr Li’s Certificates of Incapacity which had been tendered – the last of which was dated 17 July 2023 which certified Mr Beerling as unfit for employment up to 31 August 2023.[37] This submission was made despite there being no reports from Dr Li; and
· Mr Beerling was not suited to sedentary work and had no aptitude for study.
[37]Plaintiff Exhibit P10 PCB 153-155
109It was not submitted that his age, his place of residence, or his time out of employment precluded him from working in any light roles that he was otherwise physically capable of performing.
Defendant’s submissions on suitable employment
110In terms of the 60 per cent threshold, the defendant submitted the wages for all of the suitable jobs identified if performed full time greatly exceeded the agreed weekly figure of $635. Indeed it was submitted that Mr Beerling would reach the threshold if he worked approximately halftime, that is 20 hours a week in any of the jobs.
111In addition to relying upon the opinions of Dr Slon and Dr Slesenger, the defendant submitted:
· Mr Beerling had a capacity to undertake the five jobs discussed above;
· Mr Beerling had not discharged his onus to establish a 40 per cent loss of pre-injury earnings;[38]
· Mr Beerling did not establish that he did not have a capacity for suitable employment on a permanent basis;[39]
· Dr Horsley identified several proposed treatment steps which could be taken in order to restore Mr Beerling to a place where he could return to the workforce but none of these steps had been taken;
· Dr Horsley’s opinion about capacity was limited and confined to the position as at December 2023 and her opinion did not establish that any incapacity was permanent in the requisite sense; and
· Despite these issues with Dr Horsley’s opinions, the defendant submitted that Dr Horsley’s opinion should be preferred over Dr Khan, as her reports were thorough and considered[40] and she was more qualified than Dr Khan to provide an opinion on capacity.
[38] T111, L21-30
[39] T111, L21-30
[40] T115, L1-4 and 10-11
Mr Beerling’s general evidence regarding work capacity
112Mr Beerling stated in his second Affidavit:
“At the moment, I still cannot do any physical or manual work. The rehabilitation people I see for Work[C]over have discussed doing less physical jobs, like being a building inspector, or things like a dispatch officer or an accounts receivable clerk. Half the time, I have never heard of the jobs they are talking about. I am keen to get back to work as soon as I get on top of my back pain, and improve my symptoms a bit. It is very hard for me to know what work I will be able to get though. I have really only ever done mechanical work or work on a building site. …
If I can get on top of my back injury a bit more, I am sure I would have contacts in the building industry who could help me find some work. Whether I would be able to work safely, consistently and reliably whilst on site, I do not know.”[41]
[41]Plaintiff Exhibit P2, PCB 5, paragraphs [11-12]
113In his third Affidavit. he said:
“I do not believe that I am able to do any form of work because of my back.
That is, I could not cope with my pre-injury job, or any form of physical work; it would be too hard on my back.
And I do not believe that I could do office work, either. I find it very difficult to sit for long periods, and often struggle to concentrate because of pain but also the side effects of the medication that I take.
At least, I would struggle to [do] so reliably and consistently, because of the flare ups.
Anyway, I do not believe that I am suited to office work: I do not have the skills or experience. I just scraped through Year 12. I decided then that I was not suited to further study.”[42]
[42]Plaintiff Exhibit P3, PCB 19, paragraphs [23]-[27]
Summary regarding the loss of earning capacity claim
114The opinions of medical practitioners alone are not determinative on the issue of Mr Beerling’s fitness for particular jobs or on the issue of loss of earning capacity more generally.[43]
[43]Weldemichael v ID Sales & Repairs Pty Ltd [2019] VSCA 68 at paragraph [85]
115I find Mr Beerling’s reliance on the medical certificates of Dr Li to be of little assistance.[44] As mentioned earlier, Dr Li’s medical certificates are confusing. The Court has not been provided with any further material from Dr Li. I reject the submission that Mr Beerling’s continuing self-perception of incapacity on physical grounds is supported by Dr Li.
[44]As Mr Beerling’s weekly payments ceased in August 2023, there was no need to produce any further medical certificates
116In relation to work capacity generally, Dr Horsley opined in December 2023 that Mr Beerling had no current realistic or reliable capacity for work.[45] Whilst she included Mr Beerling’s mental health issues in that opinion, which the Court cannot consider, I have had regard to the physical work restrictions she placed on Mr Beerling which she said were due to his back injury alone, her opinion that Mr Beerling presented in a poorer state in December 2023 than he had in July 2023 with a reduction of functional tolerances, as well as her opinion that the overall prognosis regarding a return to work in the foreseeable future was guarded, despite the recommendations for further proactive management.
[45] Plaintiff Exhibit P8, PCB 132
117Disentanglement was not raised as an issue. If it had been, I consider the opinions of Dr Rowe, Dr Khan, and the qualified opinion of Dr Horsley, sufficient to establish that there is an ongoing organic basis for Mr Beerling’s current incapacity.
118I prefer Dr Horsley’s analysis over Dr Slesenger. Dr Horsley had the opportunity to examine Mr Beerling on two occasions and recorded a deterioration in his presentation between June 2023 and December 2023. Dr Slesenger saw Mr Beerling once in July 2023 so he was not in a position to address or comment on the deterioration reported by Dr Horsley.
119I accept Mr Beerling’s reports of ongoing pain. I accept that he has ongoing back pain with regular flare ups, and nerve pain which radiates along his leg.
120Whilst Mr Beerling made concessions about whether he could work as a spare parts interpreter or a bicycle mechanic or rental salesperson/hire controller during cross-examination, these concessions have to be considered in the light of his overall evidence that whilst he was keen to return to work, his current ongoing pain levels prevented him from doing so.
121I find that Mr Beerling’s levels of ongoing pain would prevent him from undertaking any suitable employment.
122As to his aptitude for study, it is noted that Mr Beerling left school in about 1997. He worked in manual labouring jobs for many years. He completed his carpentry apprenticeship in 2016, presumably as an adult apprentice, whilst working for the employer.
123As discussed in detail below, I find that none of the light jobs identified by the defendant constitute “suitable employment”.
124The defendant submitted that as Dr Horsley had suggested a number of potential treatment options, that consequently her evidence did not establish that Mr Beerling’s incapacity was permanent in the requisite sense.
125I find that Mr Beerling’s incapacity is permanent in the requisite sense based on the opinions of Dr Horsley and Dr Khan.
Spare Parts Interpreter
Job description
126According to CoWork, the physical demands of this job are light. The occupation usually required a medium level of digital literacy. No formal qualifications were required, however, a Certificate II or Certificate III in automotive parts interpreting/ automotive sales would be considered useful. No further details regarding these Certificates were provided.
127The earnings for this job on a full-time basis were $70,720 gross per annum/$1,360 per week.[46]
[46]Defendant Exhibit D14, DCB 159
Medical evidence
128Dr Horsley said that Mr Beerling would require formal qualifications to do this job. Dr Horsley did not address any physical restrictions with this job.
129Dr Khan opined in his report dated 7 December 2023 that this job would be unsuitable for Mr Beerling as it would require frequent sitting, stooping, bending, looking for parts, lifting parts and computer skills.[47]
[47] Plaintiff Exhibit P6, PCB 107
130Dr Slon opined that the role was “light, therefore suitable”.
131Dr Slesenger opined that Mr Beerling could return to work in this role with the restrictions outlined in his first report.
Mr Beerling’s evidence
132In cross-examination, Mr Beerling agreed that he had worked in a similar position at Frankston Yamaha for a few days a long time ago.[48] He gave no further evidence about this position.
[48]T78 L30-31; T79 L1-2
Finding on Spare Parts Interpreter
133I prefer the opinions of Dr Horsley and the limited opinion of Dr Khan. Both supported the proposition that this job would not be suitable.
134I accept that Mr Beerling’s current pain would preclude this job.
135I find this job does not constitute “suitable employment”.
Retail Sales Assistant (hardware, automotive)
Job description
136According to CoWork, the physical demands of this job were light but could change according to product area. The occupation required a medium level of digital literacy. No formal qualifications were required. It was noted that some workers had either a Certificate II or Certificate III in retail.
137This role had a requirement to lift a maximum of 16 kilograms occasionally with an opportunity to split loads and share loads when working in pairs. Lifting devices were available and included portable trolleys and pallet jacks.[49]
[49]Despite this description, this job was classified as “light work”
138The earnings for this job on a full-time basis were $61,984 gross per annum/$1,192 per week.[50]
[50]Defendant Exhibit D14, DCB 160
Medical evidence
139Dr Horsley said this job may potentially be an option “downline,” part-time initially.
140Dr Khan’s opinion as to the suitability of this job was the same as his opinion about the Spare Parts Interpreter role.
141Dr Slon opined that the role of Retail Sales Assistant was “light, therefore suitable”.
142Dr Slesenger opined that Mr Beerling could return to work in this role with the restrictions outlined in his first report.
Mr Beerling’s evidence
143Mr Beerling gave no direct evidence about this job.
Findings on Retail Sales Assistant (hardware, automotive)
144This role had a requirement to lift a maximum of 16 kilograms occasionally with an opportunity to split loads and share loads when working in pairs. The classification appears to assume that a co-worker would be available to split the load. There is no evidence to support this assumption.
145I find the CoWork report is inconsistent on this point.
146None of the medico-legal examiners explicitly address whether splitting a load with another worker is a feasible option for Mr Beerling.
147Given these problems with the job and Mr Beerling’s current level of pain, I find this job does not constitute “suitable employment”.
Bicycle Mechanic
Job description
148According to CoWork, the physical demands of this job were light. Little or no digital literacy was required other than basic competency. No formal qualifications were required although some workers had either a Certificate II or Certificate III in bicycle mechanical technology or bicycle workshop operations.
149The earnings for this job on a full-time basis were $68,952 gross per annum/$1,326 per week.[51]
[51]Defendant Exhibit D14, DCB 162
Medical evidence
150Dr Horsley said that from a physical perspective this job was probably within Mr Beerling’s capacity as a potential option “downline,” part-time initially.
151Dr Khan opined that the job was unsuitable as it would involve assembling and repairing bicycles with frequent bending, twisting, stooping, carrying, and lifting parts.
152Dr Slon opined that the role of Bike Mechanic was “light, therefore suitable”.
153Dr Slesenger opined that Mr Beerling could return to work in this role with the restrictions outlined in his first report.
Mr Beerling’s evidence
154In cross-examination, Mr Beerling agreed that this job was “probably an option”.[52] This concession was qualified by Mr Beerling’s overall evidence that whilst he was keen to return to work, his current ongoing pain levels prevented him from doing so.
[52]T79 L3-4
Findings on Bicycle Mechanic
155As far as there is a conflict in the medical opinions, I prefer the opinion of Dr Horsley. This job is a light job which may be within Mr Beerling’s capacity to undertake in the future. It is not a job he could currently undertake.
156Mr Beerling agreed that this job was probably an option for him once his pain was under control.
157This job is currently not appropriate. I find this job does not constitute “suitable employment”.
Rental Salesperson/Hire Controller
Job description
158This job was described as renting goods and equipment to individuals and businesses.
159According to CoWork, the physical demands of this job were light. This job required basic digital literacy. No formal qualifications were required.
160The suitability of this role was dependent on the provision of a “yardman” to minimise lifting. This was the arrangement at Coates Equipment Hire in Dandenong which was visited for the purposes of this WATA. This may not accurately reflect all equipment hire vendors.
161The earnings for this job on a full-time basis were $66,508 gross per annum/$1,279 per week.[53]
[53]Defendant Exhibit D14, DCB 163
Medical evidence
162Dr Horsley opined that Mr Beerling would require upgrading of computer-based skills. Dr Horsley once more said this job may potentially be an option “downline,” part-time initially.
163Dr Khan opined that as this job required prolonged sitting, it was unsuitable as it was outside Mr Beerling’s sitting tolerance of one hour. Dr Khan opined that Mr Beerling did not have relevant work experience and would not be predisposed to such a job.
164Dr Slon merely opined that the role was “light to medium, suitable”.
165Dr Slesenger had doubts about the suitability of this job and recommended a job specific worksite assessment be performed.
Mr Beerling’s evidence
166In cross-examination, Mr Beerling agreed that this position was quite interesting and was something he could see himself doing.[54] This concession must be considered to be qualified by Mr Beerling’s overall evidence that his current ongoing pain levels prevented him from doing any work.
[54]T79, L8-10
Findings on Rental Salesperson/Hire Controller
167Dr Horsley said this was a potential job. Her qualified opinion about this job does not support the proposition that it is currently suitable for Mr Beerling.
168The opinions of Dr Khan and Dr Slon are contradictory on this point. Neither were called to give evidence. The Court cannot reconcile these competing opinions.
169It is clear from the CoWork report that the suitability of this role was dependent on the provision of a “yardman” to minimise lifting.
170The job might be suitable if a yardman was available to undertake lifting. It is unclear whether a yardman would be available. If a yardman was not available, then the job would not be a light job.
171I find that this uncertainty, coupled with Mr Beerling’s level of pain, makes the role unsuitable.
172I find this job does not constitute “suitable employment”.
Building Inspector/Pre-Purchase Building Inspector
Job description
173The Recovre 130 Week Vocational Report dated 29 June 2021 tendered by the defendant identified “Building Inspector/Auditor” as a suitable employment option.
Medical evidence
174Dr Horsley did not specifically address the positions of Building Inspector or Pre-Purchase Building Inspector. She noted that Mr Beerling expressed a desire to upgrade skills with a Building Inspector role at TAFE over six months which would build on his eighteen months of carpentry experience. She considered vocational counselling was indicated.
175Dr Khan did not comment on the positions of Building Inspector or Pre-Purchase Building Inspector.
176In his first report, Dr Slon opined that the role of “Building Inspector” was “light, therefore suitable”.
177In his second report dated 18 January 2024, Dr Slesenger commented on the suitability of the role of Pre-Purchase Building Inspector, as described in the CoWork Report, as follows:
“I note the light nature of these tasks and I am of the opinion that based on the evidence presented, he could return to work in this role, adhering to the restrictions outlined above.
Given Mr Beerling’s current deconditioned state, I recommend that he commences work 4 hours a day, 4 days a week, graduating back to pre-injury hours over six weeks.”[55]
[55] Defendant Exhibit D3, DCB 67
Mr Beerling’s evidence
178In cross-examination, Mr Beerling said that he would not be able to do a building inspector job because it involved a lot of driving and would cause pain.[56]
[56]T40 L5-6
179He was not asked any questions about the Pre-Purchase Building Inspector job.
Findings on Building Inspector
180The defendant said Mr Beerling has the capacity for a Building Inspector role. This is not the role that was researched and commented on in the second CoWork report – the second CoWork report referred to the job of a Pre-Purchase Building Inspector.
181Ms Roma said that the jobs of Building Inspector and Pre-Purchase Building Inspector are different.
182Different qualifications are needed for each job. The Building Inspector requires tertiary qualifications. The Pre-Purchase Building Inspector can complete a one-to-three-day course in order to be qualified.
183It is clear from the occupation details requiring formal qualifications such as VET training and university, that Recovre was not referring to a Pre-Purchase Building Inspector role in its report dated 29 June 2021 but the job of Building Inspector.
184The defendant combined the two roles in its submissions.
185There is no evidence to support the assertion that Mr Beerling could obtain the necessary tertiary qualifications required for the job of Building Inspector. I find that this, when coupled with Mr Beerling’s level of pain as well as the restrictions he identified in attending sites, means that the role of Building Inspector does not constitute “suitable employment”.
186The wage figures provided by Recovre in its report dated 19 December 2022,[57] and in the second CoWork report, are for qualified building inspectors. They are not the appropriate figures for Pre-Purchase Building Inspector who may have completed a one to three-day course.
[57]Defendant Exhibit D13, DCB 119
187Ms Roma could find no data specific to Pre-Purchase Building Inspectors when she researched the Job Markets Australia online database for wage figures and job opportunities. There are no figures which relate to the earnings of a Pre-Purchase Building Inspector before the Court.
188I find that the position of Pre-Purchase Building Inspector does not constitute “suitable employment” due to the combination of the lack of any evidence regarding potential earnings and Mr Beerling’s level of pain.
Disposition
189The parties are requested to provide a minute of orders including orders for costs.
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