Berdin v Work 1 Pty Ltd v Rich River Meat Exports Pty Ltd and VWA
[2012] VCC 846
•26 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT BALLARAT
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-05941
| BERNARDINOSKI BERDIN | Plaintiff |
| v | |
| WORK 1 PTY LTD (ACN 118 569 752) | First Defendant |
| and | |
| RICH RIVER MEAT EXPORTS PTY LTD (ACN 118 569 752) | Second Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Third Defendant |
---
JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 18 and 18 June 2012 | |
DATE OF JUDGMENT: | 26 June 2012 | |
CASE MAY BE CITED AS: | Berdin v Work 1 Pty Ltd v Rich River Meat Exports Pty Ltd & VWA | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 846 | |
REASONS FOR JUDGMENT
Amended 28 June 2012 pursuant to The Slip Rule
---
SUBJECT – Accident Compensation Act 1985
CATCHWORDS – Serious injury application
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R Moore QC with Mr K Mueller | Saines & Partners Pty Ltd |
| For the Defendants | Mr I Gourlay | Herbert Geer |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering and pecuniary loss consequences of an injury suffered by him to his lumbar spine whilst working at the premises of the second defendant in the course of his employment with the first defendant. The relevant impairment of function relied upon by the plaintiff in the application is that of the lumbar spine.
2 In the application, the parties rely upon:
· three affidavits sworn by the plaintiff on 28 August 2009, 20 July 2011 and 7 June 2012 respectively
· the plaintiff’s viva voce evidence
· a number of medical and like reports tendered by them.
3 Having regard to the issues which arise for my determination in this matter, I consider it convenient to initially analyse the issue as to whether the plaintiff has established his entitlement for leave to commence a proceeding claiming damages for the pecuniary loss.
The Plaintiff’s Affidavit Evidence relevant to his Earning Capacity
4 The evidence relevant to the plaintiff’s work history and capacity to work is set out in the plaintiff’s first affidavit, as follows:
·He was born on 1 July 1980. He immigrated to Australia at age sixteen. He attended the Daylesford High School, where he completed his Year 10.
·In 1999, he commenced working at the Ararat abattoirs.
·With the death of his mother, he developed a drug problem, in respect of which he underwent rehabilitation in Ballarat. He subsequently developed schizophrenia.
·His history of employment included manual work at the Ararat abattoirs; working in the meat industry in Melbourne; undertaking work for a chemical company for a short period of time; as a fruit picker for one day and then commencing employment with the first defendant.
5 In his further affidavit dated 20 July 2011, the plaintiff said:
·That he continued to employ medication in the form of Meloxican, an anti-inflammatory, which he took daily, and Oxynorm, a morphine-based pain control agent which he employed daily, together with Zyprexa for his underlying schizophrenia;
·That he suffered from daily pain in his lower back, which radiated into his left leg;
·That whilst he was able to drive a car, he found that sitting in the car without moving aggravated his condition; that he was unable to tolerate car trips for an hour before requiring a break;
·That he was generally limited to sitting for not more than 20 minutes at a time and was severely restricted in his ability to bend and to twist.
6 In his affidavit dated 7 June 2012, the plaintiff said:
·That he often suffered from back spasms in his lower back;
·That the levels of his pain increased with the level of his activity;
·That his local general practitioner, Dr Rahman, continued to prescribe OxyContin and Mobic for his use;
·That he employed Mobic daily but had ceased taking OxyContin “because I react badly to it and in particular, it makes me moody”;
·That he commenced a course in English and basic computer skills; that he had trouble sitting for lengthy periods whilst attending that course, with the result that he had “missed some days and often need to go home early”.[1]
[1]PCB 18(c)
The Plaintiff’s Viva Voce Evidence
7 In the course of the plaintiff’s viva voce evidence and cross-examination, the plaintiff said that:
· He had recently undertaken a nine-week computer course at Eaglehawk;
· The structure of the course was such that he was to attend the course for five hours a day, four days a week. He said that at the conclusion of the first week he found the course to have aggravated his back pain, such that he was required to reduce his attendance during the second week of the course to three hours a day for four days a week. He said that even with this level of reduced attendance, he continued to suffer from symptoms which at times required him to take an occasional day off, but that he had been able to complete the course.[2]
[2]Having regard to the opinion expressed by Dr Scott, I find the plaintiff’s description of his ability to tolerate the requirement to sit in front of a computer and the effect of that activity in aggravating the symptoms emanating from his back to be consistent with the injury suffered by the plaintiff to his lumbar spine and his expected tolerance for activity by reason of that injury. In this respect, see the report of Dr P Scott at DCB 26A
· He had been diagnosed as suffering from schizophrenia. The plaintiff said he took regular medication to manage that illness and that the last significant episode associated with the illness was in September 2011, at which time he made a suicide attempt.[3]
[3]Transcript (“T”) 23
· As the result of the injury to his back, the plaintiff was referred by his general practitioner to Dr Kate Drummond who operated on his back in December 2008. That before his operation he suffered from back pain which on his good days caused him to limp and on his bad days limited his ability walk at all.[4]
[4]T 32
· He continued to suffer from back pain. The plaintiff said that he had difficulty explaining the nature of his back pain, but described it as being sharp.[5] He said that his symptoms involved back spasm which was activity-related.[6] That he managed his symptoms with therapy and had difficulty predicting when his back spasm would manifest itself.[7]
[5]T 35
[6]T 36
[7]T 37
· Some eight weeks after his surgery he had achieved a complete resolution of his leg pain and his back pain went away for a while but it then came back.[8] He said that his back pain became more of a problem as he became more active.[9]
[8]T 52-T54
[9]T 54
· He had believed he could return to some form of work, but having attended school,[10] “when I went to school I just couldn’t do it”.[11]
[10]I understood the plaintiff here to be referring to the computer course which he had undertaken.
[11]T 57
· He was able to walk around the lake in Ballarat – up to 3 kilometres.
· He continued to suffer from back pain which was aggravated by activity.[12]
[12]T 58
· His father-in-law had been instructing him as to working on small engines and that in that respect, he was able to work upon (the carburettor), explaining:
“That’s easy, but the – the engine – the thing I don’t know, like – like the thing is only need to know what he showed me, like that’s it, that’s what he like, but I don’t really feel confident to – to do it myself.”[13]
[13]T 60
·Since the injury to his back he had lost contact with his friends, and associated mainly with his partner.[14] That he had not looked for work since his hip operation. The plaintiff explained the reason for which he had not sought employment as follows:
[14]T 61
“Like me and my girlfriend – I said I want to raise my kid in my own sweat, but I tried everything (indistinct), like I went to school and I thought I could – I could do it, but I couldn’t do it, because I have to work different at home because I come worse, but I did – (indistinct) I start school I have to stay there, there’s different story, I don’t know. I thought I could do it, but”[15]
[15]I understood the plaintiff to be seeking to convey the situation that he wished to return to work in order to support his family. He expected that he might have a capacity to work but having attended the computer course and having struggled to complete the course, he no longer felt he had a capacity to work.
·Whilst attending the computer course, he coped with his obligation to work in front of a computer by, at times, sitting; at times, kneeling on the floor; and at times, standing.[16]
[16]T 66
·The plaintiff was asked whether he expected that he had the ability to attend work on a daily basis in suitable employment, to which he responded:
“Yes, I try my best but I can’t guarantee that I could turn up every day, so I don’t know.”[17]
[17]T 67
And further:
“Well, yes I can, but I can’t guarantee, probably the next day I just stop.”[18]
·The plaintiff said that following his attendance at Court on the previous day, he had been required to take Mobic, which he had taken the night before and also in the morning on the second day of the trial.[19] It was put to the plaintiff that in suitable employment he may be able to manage to work two hours a day, five days a week, to which he responded, “Yes, maybe I could, may I could not.”[20]
·It was further put that the plaintiff may be able to work in a repair shop repairing Whipper Snippers, garden engines and lawnmowers, to which the plaintiff responded:
“I don’t how to do that because I'm not really good in that. I'm not confidence to know, like I don’t, like my father’s tried to help me, so maybe work in the shop I have to come up every day. I don’t know I can handle that. If I do that I work for myself. So when I saw – thing I can stop and if I don’t want it.”[21]
(sic)
[18]T 67
[19]T 68-69
[20]T 70
[21]T 73
8 In re-examination, the plaintiff said:
· that on the previous evening his partner had had to drive from Ballarat to Bendigo in order retrieve his medication for him, which had been left there[22]
· that his tolerance for driving involved travelling for an hour or so and then stopping for a rest.
[22]T 73
The Medical Evidence as to the Nature of the Injury sustained by the Plaintiff to his low back
9 There is no issue that as the result of the incident the subject of this application, the plaintiff suffered an injury which involved a large left-sided protrusion at the L4-5 level of his lumbar spine which comprised his left L5 nerve root, and that this injury was materially contributed to by the plaintiff’s employment with the first defendant.
10 Nor is it in issue:
· That the plaintiff underwent surgery in treatment of this condition at the hands of Dr Kate Drummond on 31 December 2008 who, at that time, performed a lumbar discectomy and rhizolysis;
· That unrelated to the injury and impairment the subject of this application, the plaintiff developed severe disability in his left hip secondary to the presence of ankylosing spondylitic, in treatment of which he was required to undergo a left total hip replacement operation from which he made a successful and uneventful recovery.
Findings as to the Plaintiff’s Presentation
11 The plaintiff, having immigrated to Australia when he was sixteen years old, has resided in Australia for the last sixteen years.
12 Whilst his reading ability is quite adequate,[23] the plaintiff’s spoken word, both in evidence-in-chief and in cross-examination, was extremely difficult to understand by reason of his heavy accent.
[23]In the course of the application, I requested the plaintiff to read from his affidavit, which he did quite adequately – T 21.
13 In my opinion the plaintiff exhibited a consistent inability to find the appropriate words with which to express himself even when dealing with simple issues;[24]
[24]The plaintiff’s evidence at T 36, L9-18; T 57, L30 – T 58, L58; T 62, L28 – T 63, L4 illustrate this point which was more obvious during the plaintiff’s evidence, in the course of which I had great difficulty understanding him on numerous occasions. The issue is blurred by reading the transcript due to the excellent work of the transcript provider.
14 Further, it was my clear impression that the plaintiff’s language skills completely failed him at various times when he felt under pressure to explain his position: see, for example, the plaintiff’s evidence at Transcript 45, lines 4 to 12, when in response to a simple question which involved him identifying the week day upon which he was injured, the plaintiff’s response was tortured and unintelligible
15 The plaintiff’s inability to deal with simple concepts was further illustrated in the course of his cross-examination in which he accepted a position, which was erroneous, that when he attended the computer course it was structured such that he was required to attend five days a week.[25] It is clear however that the course was structured such that he was required to attend only four days per week.[26]
[25]T 63, L28
[26]T 64
16 I note that Mr Paul Stanley, an occupational therapist, in his vocational assessment of the plaintiff undertaken in May 2012, described the plaintiff’s spoken English as being:
“… sufficient for most conversation. However, he requires assistance for more complex verbal communication and his pronunciation is difficult to understand;”[27]
and he assessed the plaintiff’s reading skills as being at the level of a 12.4-year-old, commenting:
“English language and literacy skills are adequate for occupations requiring basic level skills, however he is restricted when considering occupations where higher level language and literacy are prerequisite for competency.”
[27]PCB 16
17 These findings by Mr Stanley are consistent, in my opinion, with:
· the mental status evaluation of Dr Lester Walton, a psychiatrist, who examined the plaintiff on 14 February 2012; namely, that:
“This man struggled to orientate himself in time and similarly arithmetical calculation proved rather difficult but he was adequate in that regard. There was no gross deficit in current memorising. The impression is of a rather ill educated man but of normal intelligence with no major imposed cognitive deficit”;[28]
[28]PCB 59
and
· the opinion expressed by Dr Robert Athey, a psychiatrist, who examined the plaintiff on 6 March 2012, and commented that he found the plaintiff to present with impaired concentration, that the plaintiff was easily distracted, and observed:
“This may explain his memory problems although some things were very vague, such as the date of onset of illness, time off work and so on.”[29]
[29]DCB 19
18 Having had the opportunity of observing the plaintiff in the course of his evidence, I am satisfied that whilst the plaintiff was doing his very best to make his speech intelligible, he achieved only a modicum of success in that process and he generally encountered difficulty in absorbing and dealing with issues of modest complexity.
19 I am satisfied that the aspects of the plaintiff’s presentation described above would be likely to impact adversely upon the range of work which he would be capable of undertaking.
The Evidence as to Plaintiff’s Physical Capacity for Work
20 With the exception of the report of Mr Thomas Kossmann dated 28 January 2011, the material assembled on behalf of the plaintiff in support of this application contains no reports which attest to either:
· the current level of the disability with which the plaintiff presents by reason of the injury to his lumbar spine; or
· the plaintiff’s current physical capacity for employment.
21 The report of Mr Kossmann, for that matter, whilst confirming that the plaintiff’s initial injury involved a moderately large left posterior and central prolapse of the L4-5 disc compressing the L5 nerve root into the lateral recess which also caused mild to moderate canal stenosis, provides no information as to the plaintiff’s current level of disability or his employability.
22 The only medical evidence as to the plaintiff’s employability following his recovery from his hip surgery and at the present time, is contained in the medical reports of three medical practitioners who have examined the plaintiff on behalf of the first defendant, namely:
(i) Mr Daryl Nye, who reported upon the plaintiff at the request of the QBE Workers’ Compensation Insurance Company on 10 February 2010;
(ii) Dr Peter Scott, who has reported upon the plaintiff’s presentation on 15 December 2011 and 13 April 2012;
(iii) Mr Ian Jones, who has reported upon the plaintiff’s presentation on 8 November 2011 and 21 November 2011.
23 Whilst Mr Gerald Moran has provided two reports, dated 9 November 2009 and 1 June 2011 respectively, these reports essentially involve an assessment of the plaintiff’s impairment pursuant to the fourth division of the AMA Guides and contain little material relevant to the issues to be determined by me in this application.
24 There is a consistency between the medical opinions of these three medical practitioners, that the plaintiff has lost the capacity to engage in unrestricted physical work.
25 Upon this issue:
(i)Mr Ian Jones expressed the opinion that the plaintiff was fit only for work where there was no requirement to engage in repeated bending or lifting and was permanently incapacitated for heavy physical employment.[30]
(ii)Dr Peter Scott opined:
“If one was considering his back problem alone he was fit for light work only, which did not require him to perform any prolonged sitting, i.e. more than one hour, prolonged standing, i.e. no more than one hour, or a repetitive bending or lifting more than 10 kilograms in weight.”[31]
[30]DCB 11 – Mr Jones, who was retained to examine the plaintiff on behalf of the defendants, expressed these opinions as to the plaintiff’s capacity to work as the result of an examination of the plaintiff undertaken on 3 November 2011
[31]DCB 26 (a) – this opinion was expressed by Dr Scott in a report dated 13 April 2012 in which Dr Scott relied upon his findings upon examining the plaintiff on 15 December 2011
26 Whilst in his report of 10 February 2010, Mr Daryl Nye opined that the plaintiff’s presentation was such that he did not have a current capacity for employment both with respect to pre-injury employment duties or any alternative duties,[32] I note that in expression this opinion, Mr Nye opined that the plaintiff presented with “psychological factors and functional behaviour” and I interpret Mr Nye’s analysis as to the plaintiff’s incapacity to work to be based upon the combined influence of the plaintiff’s L4-5 disc prolapse and his functional presentation.
[32]DCB 4
27 For this reason, I do not accept the submission put by Mr Moore QC, who appeared with Mr Mueller on behalf of the plaintiff, that Mr Nye’s opinion can be in any way relied upon by the plaintiff to speak in any way as to the influence of the organic injury suffered by the plaintiff to his lumbar spine upon the plaintiff’s retained capacity to work, when Mr Nye has failed in his report to identify and differentiate between the relevance of physical injuries sustained to the plaintiff’s lumbar spine and the “psychological factors and functional behaviour” with which the plaintiff presented, and the influence of each of those factors upon the plaintiff’s reported incapacity for employment.
Findings as to the Plaintiff’s retained Physical Capacity for Work
28 It was put on behalf of the defendants that the failure by the plaintiff to produce evidence from his current treating general practitioner, Dr Ramone, or an up-to-date report from Dr Kate Drummond (the surgeon who performed the plaintiff’s lumbar discectomy in December 2008), made it “virtually impossible” for the plaintiff to make good his onus of establishing his entitlement to leave which he seeks in this application.
29 I do not accept this submission.
30 In deciding the issues which arise in this matter, I must take into account all the evidence adduced by both parties.
31 Whilst the failure of the plaintiff to adduce medical evidence may, in some circumstances, give rise to a Jones v Dunkel[33] type inference, this does not diminish the force of the medical opinions adduced on behalf of the defendants by Mr Jones and Dr Scott as to the plaintiff’s physical capacity for employment.
[33](1959) 101 CLR 298
32 Both Mr Jones and Dr Scott identify the organic condition in the plaintiff’s lumbar spine as being responsible for his incapacity for employment in anything other than light forms of work. When these opinions are considered in the context of the injuries suffered by the plaintiff, which involved a large left sided L4-5 disc prolapse and sciatica which required surgical management, I am satisfied –
· firstly, as to the persuasiveness of those opinions; and
· secondly, that I should assess the plaintiff’s current capacity for work on the basis of the opinions of Mr Jones and Dr Scott.
33 That is not to say that the criticism by Mr Gourlay, who appeared on behalf of the defendants, as to the way in which the plaintiff’s case has been prepared and presented is unjustified, having regard to the failure of those involved in that task to adduce any medical evidence from treating or consulting medical practitioners which attests to the plaintiff’s current capacity for work.
The Vocational Evidence as to the Work for which the Plaintiff remains suited having regard to his Injury
34 In a vocational assessment generated on behalf of the defendants dated 1 January 2012, Ms Carolynne Fawcett identified as suitable employment options for the plaintiff, the following occupations which she listed in order of priority, namely:
(i) meter reader
(ii) inventory and despatch officer
(iii) product quality controller
(iv) pest and weed controller
(v) interpreter
(vi) small engine mechanic (in respect of which the author commented that the plaintiff required further training).[34]
[34]DCB 27
35 This vocational assessment was produced by Ms Fawcett on the basis of her analysis of the fact that the plaintiff presented with transferable skills involving, amongst others:
(i)an ability to work as a team member or independently
(ii)customer service skills
(iii)communication skills
(iv)ability to communicate effectively with a diverse range of people.[35]
[35]DCB 30 and DCB 39
36 Most of the occupations identified as being suitable for the plaintiff by Ms Fawcett have been rejected by Mr Jones on medical grounds, with the exception of those involved in the occupations of:
(i) a product quality controller; and
(ii) an inventory and despatch officer.
37 The rejection of these occupations by Mr Jones on the basis that they involve activity which is beyond the plaintiff’s physical capacity is consistent, in my opinion, with the position of Dr Scott as to the limits which should be placed upon the plaintiff’s requirement to sit or stand, and I accept the analysis of Mr Jones as to this issue.
38 Whilst Mr Jones has not commented upon the plaintiff’s capacity to carry out the duties involved in the occupation of meter reader or pest and weed controller, I am satisfied that these occupations, in that they both involve inspection of various aspects of property,[36] would be likely to involve the requirement to repeatedly perform movements outside those identified by Mr Jones at DCB 11 and Dr Scott at DCB 26(a) as being suitable for the plaintiff such as, to in turn, make those occupations unsuitable for him.
[36]Meter readers are required to “read and inspect meters and connections for defects“ (DCB 30); and pest and weed controllers are required to ”inspect properties, identify problems and determine treatments” (DCB 33)
39 Even if some allowance is made for the fact that the plaintiff’s communication skills may have been adversely impacted upon by the pressure to which the plaintiff was exposed in the course of giving evidence, I find it inconceivable that Ms Fawcett could suggest that the plaintiff possessed the language skills required to work as an interpreter or that it would be appropriate to list the plaintiff’s communication skills, his customer service skills and his ability to communicate effectively with a diverse range of people, as being attributes which influenced his employability in a positive way.
40 Given that the recommendations made by Ms Fawcett both in this report and her earlier report of 17 October 2011 were based upon this serious flaw in her analysis of the plaintiff’s transferrable skills,[37] I find the analysis by Ms Fawcett in each of her reports as the employment options which might be available to the plaintiff, as being superficial and totally unpersuasive. I make this finding not only for the reason set out above, but also having regard to the analysis by Mr Ian Jones who, in his report of 21 November 2011, discounted most of the occupations identified by Ms Fawcett purely on medical grounds.
[37]In her earlier report, Ms Fawcett had listed the plaintiff’s transferrable skills as being identical to those to which I have referred at paragraph 34 of this Judgment
41 Notwithstanding the criticism which I have made as to the approach taken by Ms Fawcett in making her recommendations as to the occupations which constitute suitable employment for the plaintiff, given the opinion expressed by Mr Jones as to the physical capacity of the plaintiff to undertake the duties required of:
(i) a product quality controller; and
(ii) an inventory and despatch officer;
it is appropriate that I set out my findings as to the plaintiff’s ability to manage those activities.
42 In undertaking this analysis, I do so accepting the relevance of the factors listed by Mr Paul Stanley, an occupational therapist, who, in a report dated 31 May 2012, listed the issues which, in his opinion, impacted upon the plaintiff’s vocational options.[38]
[38]PCB 89-90
43 I find the factors there listed by Mr Stanley, namely:
·that the plaintiff’s language and literacy skills are adequate for occupations requiring basic level skills but he is restricted when considerations where higher level language and literacy are a prerequisite for competency;
·that the plaintiff’s arithmetic skills were rudimentary;
·that the plaintiff’s previous working experience has been restricted to physical work and this did not involve working in any administrative type of position;
to be both sensible and persuasive and to accord with the findings which I have previously expressed as to the plaintiff’s presentation as he gave evidence.
44 In his report, Mr Stanley opined:
“Analysis and interpretation of the medical reports provided indicates that Mr Berdin should for the foreseeable future avoid work tasks involving a requirement for:
· Moderate to heavy manual handling including lifting, carrying, pushing and pulling;
· Frequent bending of the lower back;
· Prolonged sitting and standing.”
45 As I have commented, generally when considering the approach taken by Mr Stanley to his analysis of the plaintiff’s retained capacity for employment and the impact of the plaintiff’s personal attributes upon the type and range of work which he would be capable of performing, I found that approach to be reasonable and his analysis derived by that approach to be persuasive.
46 Adopting the approach I have indicated above, I turn to the analysis of the two occupations nominated by Ms Fawcett, in respect of which Mr Jones has opined fall within the limits of the plaintiff’s physical capacity.
47 The duties of a product quality controller as set out by Ms Fawcett[39] include the following:
[39]DCB 43
· studying product specifications and taking measurements to determine conformity to specifications
· compiling quality assurance reports
· maintaining documentation and reporting findings
· designating the grading of produce and recording details of assessments according to classification system
· preparing samples and carrying out prescribed tests.
48 Having regard to the issues identified by Mr Stanley as impacting upon the plaintiff’s vocational options to which I have previously referred, and taking into account my assessment of the plaintiff’s ability to process issues which arose in the course of his evidence and respond appropriately to those issues, I am satisfied on the balance of probabilities that the plaintiff would not be fit to carry out the duties involved in the occupation of a product quality controller.
49 The duties required of an inventory and despatch officer are described by Ms Fawcett as including the following:[40]
[40]DCB 43-44
· the preparation and attachment of documentation to articles to be despatched
· ensuring that the clearance procedures including the payment of customs entry fees and duties are carried out
· the despatching of goods and the arrangement of their prompt delivery upon arrival
· contacting “senders to fix shortages and arrange for a placement of damaged goods”
· the maintaining of records of receipt and despatches.
50 For the reasons earlier mentioned, I am satisfied on the balance of probabilities that the plaintiff would not to be able to undertake the duties involved in the occupation of inventory and despatch officer, notwithstanding the fact that he retains the physical capacity to do so.
51 For these reasons, I am satisfied that Ms Fawcett has, notwithstanding the fact that she has had the opportunity to opine upon the issue on two separate occasions, failed to identify any occupation for which the plaintiff is suited.
52 In his report dated 31 May 2012, Mr Stanley opined:
“Due to the effects of his injury Mr Berdin does not have the capacity to return to his pre-injury occupation as a meat boner and slicer and he no longer has the capacity to perform the common tasks of any other occupation for which he is qualified or has work experience.
Mr Berdin’s alternative vocational options were explored by an examination of his education and personal attributes to ascertain his transferrable skills. The findings were combined with his limited functional capacity to analyse all ALNZSCO occupations for which no specific qualifications or work experience is usually required. No alternative occupation was found where Mr Berdin has the transferrable skills and where the inherent job requirements are within his functional capacity.
Occupational rehabilitation and/or retraining in future are unlikely to lead to a suitable recognised occupation in the open labour market for Mr Berdin.
Leaving aside the psychological consequences of Mr Berdin’s lower back injury I conclude no recognised occupation in the open labour market for which he is likely to qualify represents suitable employment and this situation will continue for the foreseeable future.”
53 I am satisfied that I should accept the opinion expressed by Mr Stanley, that there is no recognised occupation within the open labour market for which the plaintiff is currently suited and that the prospect of occupational rehabilitation or training achieving an alteration in this position is negligible.
54 In making this finding, I rely not only upon the persuasiveness of the analysis undertaken by Mr Stanley, but also upon:
(i) My findings as to the plaintiff’s difficulty with verbal communication and comprehension;
(ii) The restrictions placed upon the plaintiff’s capacity for the physical work detailed by Dr Scott, namely that the plaintiff is fit for light work which:
“… does not require him to perform prolonged sitting, i.e. more than one hour, prolonged standing, i.e. no more than one hour, or repetitive bending or lifting more than 10 kilograms in weight;”[41]
[41]DCB 26(a)
which opinion I find to be consistent with that expressed by Mr Jones to which I have previously referred.
(iii) The assessment undertaken by Dr Robert Athey in the course of his examination of the plaintiff on 6 March 2012, in which he found the plaintiff to present with impaired concentration. He commented that the plaintiff was easily distracted and observed:
“This makes the plaintiff’s memory problems although some things were very vague such as the date of onset of illness, time off work and so on;”
and opined as to the relevance of the plaintiff’s pre-existing psychotic state as to his capacity for work, that whilst that state was presently in remission:
“It would depend on his psychotic illness as to whether he would be able to work on a regular and consistent basis. As mentioned earlier, psychosis can run a relapsing or remitting course. Currently it appears in remission.”
(iv) The mental status evaluation of Dr Walton; namely, that the plaintiff:
“… struggled to orientate himself in time and similarly arithmetical calculation proved rather difficult but he was adequate in that regard. There was no gross deficit in current memorising. The impression is of a rather ill educated man but of normal intelligence with no major imposed cognitive deficit”;[42]
(v) The inability of Ms Fawcett to identify any suitable employment activity which I am satisfied the plaintiff possesses the capacity to perform.
[42]PCB 59
55 Further, I am satisfied, given:
· the period which has elapsed since the plaintiff’s back surgery and the relative stability of the plaintiff’s back condition in recent years
· the medical opinions of Mr Jones and Dr Scott
· the opinion expressed by Mr Stanley as to the probability that the plaintiff would gain no benefit from further occupational rehabilitation or retraining;
that both the plaintiff’s capacity for employment has stabilised at its present level.
56 Given the findings to which I have previously referred as to that capacity, it follows that the plaintiff has established that, by reason of the impairment in the function of his low back, he has sustained a loss of earning capacity, the consequences of which are, when judged by a comparison with other cases in the range of possible impairments, fairly described as being more than “significant” or “marked” and as being at least “very considerable”, and that he has established that the loss of earning capacity associated with his injury meets the requirements of the Act.
57 In the circumstances, I am satisfied that the plaintiff is entitled to the orders sought in this application, namely leave to commence a proceeding claiming damages for both the pain and suffering consequences and the loss of earning capacity consequences of the injury sustained by him the subject of this application.[43]
[43]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 (28 July 2009)
58 I will hear the parties as to the precise form of the order which is sought in this matter and also upon the issue of costs.
- - -
0
2
0