Bond v Victorian WorkCover Authority
[2024] VCC 187
•1 March 2024
car
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-03513
| RYLEY WILLIAM BOND | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY (ABN 90 296 467 627) | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February 2024 | |
DATE OF JUDGMENT: | 1 March 2024 | |
CASE MAY BE CITED AS: | Bond v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 187 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the lower back – whether pain and suffering consequences are “serious” under the Act – whether the plaintiff has satisfied the statutory test of 40 per cent loss of earnings due to the injury – plaintiff under twenty-six years at time of injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s327 and s335
Cases Cited:State of New South Wales v Moss (2000) 54 NSWLR 536
Judgment: Leave is granted to the plaintiff to bring common law proceedings to recover damages for pain and suffering and loss of earning capacity arising out of the physical injury to his lower back in the course of his employment with the employer in 2020.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Ms C Shambrook | Just Injury Lawyers |
| For the Defendant | Mr B R McKenzie | Russell Kennedy Lawyers |
HIS HONOUR:
1This is an application brought by Originating Motion, whereby the plaintiff applied for leave pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages suffered by him arising out of his employment with his employer, New Gen Design and Fabrication Pty Ltd (“New Gen”). The plaintiff alleges he was injured in the course of his employment in 2020.
2The plaintiff has satisfied the Court that he has a permanent loss of earning capacity greater than 40 per cent as a result of the injury to his lower back suffered during the course of his employment with New Gen in 2020. The reasons for this finding are set out in the following paragraphs of this Judgment.
3Mr McKenzie, counsel for the defendant, stated that the defendant accepted the plaintiff had suffered a compensable injury during the course of his employment. The defendant also conceded that the plaintiff was under twenty-six years of age at the time of the injury. He stated the issues in this case were:
(a) the plaintiff does not satisfy the statutory test for pain and suffering (not conceded);
(b) the plaintiff has not demonstrated a loss of earning capacity greater than 40 per cent;
(c) the plaintiff has capacity to work full time in suitable employment;
(d) the credit of the plaintiff.
4The following evidence was adduced in the course of the hearing.
5The plaintiff gave evidence and was cross-examined.
6The plaintiff tendered the following exhibits:
· The Plaintiff’s Court Book (“PCB”), pages 4 to 43, 47 to 122, 131 to 136 and 138.
7The defendant tendered the following exhibit:
· Exhibit 1, the Defendant’s Amended Court Book (“DCB”), pages 5 to 136.
The statutory scheme
8The legal principles and statutory provisions relating to applications for serious injury under the Act were well-known to the two parties and were not the subject of any direct submission or discussion. The main issue in this case was the fact that the plaintiff was under twenty-six years of age at the time of the injury.
9The statutory provisions of measuring the loss of earning capacity, as set out in s325(f) to s325(g) of the Act, are not relevant in this application for serious injury. The calculation for loss of earning capacity in this case is to be done in accordance with the common law principles enunciated by Heydon JA (as he then was) in the case of State of New South Wales v Moss.[1] A summary of those principles is as follows:
(a) The evidence of past economic loss is some, though not conclusive, evidence of a reduced earning capacity;
(b) It is generally desirable to have precise evidence of what the plaintiff would have been likely to have earned before the injury and what he is likely to earn after it;
(c) In a case where the plaintiff has suffered a significantly-disabling injury which affects the range and nature of work he can perform, the Court, without specific evidence of what other persons with this kind of disability can earn, makes a judgement and assessment on a percentage basis, or otherwise, of the value of loss of capacity;
(d) The compensable loss is not a loss of income, but the loss of capacity to earn income in a manner productive of a financial loss. It is an issue of calculating the damage to a capacity to carry out various careers. It is an exercise of possibilities, not proof of probabilities;
(e) The mere fact that the quantum of damages is difficult to assess does not mean the plaintiff is unentitled to a nominal sum;
(f) The task of the tryer of fact is to perform a discretionary judgement by reference to not-wholly determinative criteria within a fairly wide parameter.
[1](2000) 54 NSWLR 536
10I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial on an action and, in doing so, disclose my pathway of reasoning in dealing with the evidence and the issues raised in this application. The above principles are to be complied with in the determination of whether or not the plaintiff has satisfied a loss of earning capacity of greater than 40 per cent.
The Plaintiff’s background
11The plaintiff is twenty-six years of age.[2]
[2]PCB 4
12The plaintiff attended his education in Gisborne and left school after completing Year 10 at Gisborne Secondary College.[3] After leaving school, the plaintiff then completed an apprenticeship as a welder/boilermaker. He also has completed a Certificate III in Welding and Fabrication.[4]
[3]PCB 4
[4]PCB 5
13The plaintiff comes from a family of boilermakers. His grandfather, father and brother are boilermakers.
14After completing his apprenticeship, the plaintiff worked for a number of different employers in order to broaden his experience in boilermaking and welding.
15On 9 August 2019, the plaintiff commenced work with New Gen.[5]
[5]PCB 5
16In the course of his employment, the plaintiff was experiencing back pain during the year 2020 and ultimately ceased employment there in December 2020.[6] After leaving his employment with New Gen, the plaintiff commenced his own business doing lawnmowing, maintenance and light metal fabrication work. He was unable to continue in that work due to his lower back injury.
[6]PCB 7-8
17In October 2021, the plaintiff commenced work with Essendon Motorcycles & Mowers (“Essendon Motorcycles”).[7] The plaintiff built up his hours to full time until August 2023. Due to the symptoms he was suffering in his lower back, the plaintiff reduced his hours of employment to twenty-five hours per week at Essendon Motorcycles in August 2023. His gross earnings for that employment were $875 a week.
[7]PCB 8
18The plaintiff’s current regime of treatment is physiotherapy and attending upon his general practitioner. He also has remedial massage and acupuncture. He attends hydrotherapy classes two to three times per week. The plaintiff is prescribed Tramadol, 50 milligrams; Mobic, 15 milligrams; and he takes Circadian, Panadol and Nurofen as required.
19None of the plaintiff’s treating medical practitioners have recommended surgery to his lower back to ameliorate his symptoms.
Credit of the Plaintiff
20Mr McKenzie, on behalf of the defendant, cross-examined the plaintiff as to his credibility. The predominant feature of the cross-examination was the fact that the plaintiff conducted a Marketplace presence on Facebook. The defendant relied on pages copied from Facebook Marketplace and these appear at pages 107 to 136 of the Defendant’s Amended Court Book. The Facebook Marketplace pages revealed numerous photographs of various motor vehicles and motorcycles for sale and had, in fact, been sold. The plaintiff was asked about each and every transaction in relation to the photographed vehicles. The plaintiff answered each of those questions in a forthright and straightforward manner.
21A summary of the plaintiff’s activity on Facebook Marketplace is that he sold some motorcycles over a period of five years, which were his motorcycles. The remainder of the other items for sale included motor vehicles for and on behalf of his father, and also parts and equipment that would be woodworking or boilermaking equipment that belonged to his deceased grandfather. In essence, the plaintiff was using Facebook Marketplace to clean out the grandfather and father’s shed. The upshot of all his evidence is that he owns, and continues to own, two motorcycles. I accept his evidence that he does not ride them because they are too difficult to ride, given his lower back injury.
22I assess the plaintiff as a straightforward and honest witness. The plaintiff lacked any display of guile or exaggerating his symptoms regarding the effect of his lower back injury on him. I accept he is doing the best he can possibly do with his physical condition. In coming to that conclusion, I rely on the fact that he attends hydrotherapy, physiotherapy, acupuncture and other physical treatments of massage, in order to maintain his ability to continue to work twenty-five hours per week.
23The plaintiff is supported in this finding of his credibility by the affidavit of his employer, Noel Humphreys, sworn 22 January 2024, and the affidavit of his mother, Wendy Bond, sworn 20 January 2024.
24I note that two of the medical practitioners who examined the plaintiff on behalf of the defendant sought to make the following observations of the plaintiff:
25Mr Roy Carey, consultant orthopaedic spine surgeon, in his orthopaedic report dated 19 December 2022, stated:
“… [The plaintiff] seemed a pleasant and genuine witness to his complaints with no evidence of embellishment.”[8]
[8]DCB 30
26Dr Mary Wyatt, occupational physician, in her report dated 5 October 2023, stated:
“… [The plaintiff] attended as a straightforward man. He demonstrated reduced movement at the lumbar spine. I felt his presentation was consistent with the radiology and the other medical information available. No inconsistencies were noted on examination.”[9]
[9]DCB 40
27While I would not describe the plaintiff as stoic in the classic sense, he was a straightforward, honest person and a man of few words.
The Plaintiff’s medical evidence
Radiology
28The plaintiff has had two separate radiological examinations. The first radiological examination was requested by Dr M Samararatna, who was the plaintiff’s general practitioner. The CT scan of the lumbar spine was conducted on 29 June 2020. The following findings were noted:
“L3/L4: Mild circumferential disc bulge without associated significant central canal or foraminal narrowing.
L4/L5: Mild circumferential disc bulge without associated significant central canal or foraminal narrowing.
LS/S1: Mild posterior broad based disc bulge without associated significant central canal, foraminal or subarticular recess narrowing.
Comment: Multilevel lower lumbar mild disc bulges without associated significant central canal or foraminal stenosis on today’s CT.”[10]
[10]PCB 48
29Dr Maria Raty, the plaintiff’s present general practitioner, sought an MRI scan of the plaintiff’s lumbar spine, which was conducted on 21 October 2020. The findings of that report are as follows:
“At L5-S1, mild diffuse disc bulge is present and there is a small focal midline to right posterior paracentral disc protrusion not associated with any neural impingement. No facet abnormality at this level.
Conclusion: Small midline to right posterior paracentral focal L5-S1 disc protrusion but no neural impingement.”[11]
[11]PCB 49
Dr Maria Raty, general practitioner
30Dr Raty has been the plaintiff’s general practitioner since August 2020 and continues to be his primary medical adviser.[12] In her report dated 20 January 2024, Dr Raty notes there were three bulging discs on the CT scan.
[12]PCB 50
31The general practitioner’s diagnosis is mechanical lower back pain, with mild disc bulges at L3-4, L4-5 and L5-S1, without significant central canal or foraminal narrowing. Dr Raty’s opinion is that the plaintiff does not have capacity for pre-injury employment as a welder/boilermaker and that that is a permanent incapacity.[13]
[13]PCB 51
32Dr Raty states that the plaintiff is working five hours a day, five days a week, and that he is unable to do any more work than that. Dr Raty has taken a history that the plaintiff had worked for longer periods of time, but was unable to consistently achieve that level of work. Dr Raty notes that the plaintiff uses the anti-inflammatory medication, Mobic, regularly and uses Tramadol, 50 milligrams, as needed when the pain flares-up. Dr Raty states that the plaintiff is unable to perform duties that involve heavy lifting, bending, squatting or kneeling.[14] It is clear from Dr Raty’s long-term treatment of the plaintiff that, in her opinion, the plaintiff can only work twenty-five hours per week, as he is currently doing.
[14]PCB 51
Jamie Diab, physiotherapist
33Mr Diab prepared a report dated 15 December 2023. In his report, he notes the plaintiff has been receiving physiotherapy treatment from 20 August 2020 until the present time. Mr Diab diagnoses the plaintiff as suffering from lumbar discogenic dysfunction due to L5-S1 disc prolapse.[15] In Mr Diab’s opinion, the plaintiff can work five days a week, five hours per day, but, given the nature of the injury, those hours may reduce over time due to the nature of the injury.[16] Mr Diab is of the opinion that the twenty-five hours per week ability to work is a permanent situation.
[15]PCB 54
[16]PCB 55
Mr Keat Ooi, orthopaedic and spine surgeon
34Mr Ooi prepared two reports, dated 20 March 2023 and 27 November 2023. Mr Ooi’s diagnosis is that the plaintiff suffers from non-specific axial lower back pain secondary to L5-S1 disc prolapse.[17] In his opinion, the plaintiff is unable to return to his pre-injury employment.[18] In his first report, dated 20 March 2023, Mr Ooi stated that the plaintiff had an ability to perform reduced hours of suitable employment of up to ten to fifteen hours per week.
[17]PCB 58
[18]PCB 59
35In his later report, dated 27 November 2023, Mr Ooi confirms his diagnosis of axial back pain and L5-S1 disc prolapse/degenerative disc disease.[19] Mr Ooi then notes the plaintiff was working five hours per day, five days per week. He notes this is a permanent situation for the plaintiff and recommends the plaintiff continue to work in this manner.[20]
[19]PCB 62
[20]PCB 62
Dr Saleem Khan, consultant in rehabilitation and pain medicine
36Dr Khan prepared two reports, dated 9 March 2023 and 11 November 2023. Dr Khan diagnosed the plaintiff as suffering from axial somatic pain in the lumbosacral spine due to L3-4, L4-5 and L5-S1 disc injuries. He then stated as follows:
“A 25-year-old man who was injured during the course of heavy lifting and manual labour on the 26 June 2020. Has been left with axial somatic pain in the lumbosacral spine due to L3/4 and L4/5 disc bulges and in particular, L5/S1 disc injury and protrusion. This has led to impairment of his intrinsic and functional physical activity such that he is unable to return to his preinjury duties.”[21]
[21]PCB 77
37At the time of the first report, in March 2023, Dr Khan noted that the plaintiff was working full time in sedentary work, doing administrative office duties.[22] Dr Khan noted that the plaintiff’s long-term work capacity for suitable employment (boilermaking and steel installation) is likely to remain guarded for the foreseeable future.[23]
[22]PCB 78
[23]PCB 44
38In his second report, dated 11 November 2023, Dr Khan noted that the plaintiff had returned to work doing office work and then driving trucks. He noted that the plaintiff was working five hours per day, five days per week at Essendon Motorcycles. The plaintiff’s duties then included online sales and customer service, with no bending, squatting or lifting required in his employment. Dr Khan concludes:
“… I opine that the … [plaintiff] cannot return to preinjury duties as a boilermaker.”[24]
[24]PCB 78
39Dr Khan continues:
“He is currently in a sedentary work role doing administrative office duties working 25 hours per week.
Considering the above factors, I opine that the worker does not have capacity for vigorous physical labour such as his pre-injury work as a welder/boiler maker. He retains capacity for modified employment in sedentary work roles such as his current job, performing no more than a maximum of 25 hours per week, with restrictions of no repetitive heavy lifting greater than 5kg and no repetitive bending, twisting, leaning, squatting or stooping.
…
His incapacity for suitable employment is likely to continue into the foreseeable future.”[25]
[25]PCB 95-96
40The conclusion of Dr Khan’s evidence is that the plaintiff is doing the best he can working in an administrative role twenty-five hours per week and that position is a permanent state for the plaintiff into the foreseeable future.
Dr Dominic Yong, specialist occupational physician
41Dr Yong prepared a report dated 21 June 2023. Dr Yong’s opinion is that the plaintiff is a man with a lower back discal injury and there is persisting lumbar dysfunction. He went on to state that, given the mechanism of the onset of the back injury, there would also be a likelihood of long-term deterioration of the injury/condition if he was exposed to further significant manual-handling tasks.[26] Dr Yong stated that the plaintiff does not have a current capacity to work his pre-injury employment as a welder or boilermaker.[27]
[26]PCB 105
[27]PCB 106
42Dr Yong took a history from the plaintiff that he was then working full-time hours. He stated as follows:
“If the current status were to continue or worsen, it is likely that … [the plaintiff] would have to reduce his weekly working hours to match his current functional capacity. An initial reduction would be to work approximately ¾ of a full time weekly load.
With this workplace accommodation, he would be able to perform this suitable employment on a reliable and consistent basis.”[28]
[28]PCB 107
43Dr Yong’s prediction, made in June 2023, came to fruition in August 2023, when the plaintiff was forced to reduce his hours to twenty-five hours per week due to his lower back condition.
44Dr Yong then prepared a further report, dated 14 December 2023. Dr Yong set out the plaintiff’s current medical treatment to include the following:
“• Seeing his usual physiotherapist on a weekly basis for massage, supervision of exercise program and stretches.
• Home exercises on most days.
• Massage on a weekly basis.
• Seeing a second physiotherapist on a fortnightly basis for cupping and acupuncture.
• Going to a pool to do exercises 2-3 times a week.
• Walking most nights for 30 minutes
• Meloxicam, 1 tablet, every few days.
• Tramadol, 50 mg tablets, 3 to 4 per week.
• Panadol, 15 tablets per week.
• Nurofen, 15 tablets per week.”[29]
[29]PCB 112
45Dr Yong’s opinion is that the prognosis for the plaintiff’s lower back condition is guarded, considering the nature of the back condition, the period of time since onset, the response to treatment, the progression of the condition and the current clinical status. Dr Yong’s opinion was that the plaintiff’s lower back condition was permanent, in the sense it was for the foreseeable future. Dr Yong stated the plaintiff could not return to his pre-injury employment of a welder/boilermaker.[30] That incapacity is permanent.
[30]PCB 116
46Dr Yong then addressed the employment roles suggested in the Nabenet Vocational Assessment dated 18 October 2023. Dr Yong confirmed that the plaintiff was working as an online sales assistant in a customer-service role and that he was currently performing that role. In respect of that job, he stated:
“… [The plaintiff] has a current capacity to perform this task for the reduced weekly hours as described above; and this is on a reliable and consistent basis given his pain levels, functional and positional tolerances, frequency of flare-ups, medication intake and prognosis.[31]
[31]PCB 117
47I note that the plaintiff is working twenty-five hours per week.
48In respect of the role of a rental hire controller, Dr Yong’s opinion was that the plaintiff could work in that capacity as suitable alternative employment for five shifts of five hours per week. [32]
[32]PCB 118
49Dr Yong considered the plaintiff could perform the warehouse administrator role on five-hour shifts for five days a week as a maximum.[33]
[33]PCB 119
50In Dr Yong’s opinion, in respect to the sales representative job, he stated that the plaintiff could work in that capacity for maximum weekly hours of five-hour shifts, five days per week. Dr Yong stated the plaintiff could work five-hour shifts, five days per week in the capacity of customer service adviser.[34] Dr Yong concluded his report by stating the following:
“I do note that he attempted to work pre-injury working hours in his current role from early to mid-2023 to August 2023, which was an approximate 3‑to 4-month period. I note that during this time, he required taking increased painkiller medication, had regular time off work due to the pain, and was struggling with his pain symptoms at the end of the shift. Therefore, it is unlikely that he would be able to return back to these full time working hours.”[35]
[34]PCB 120
[35]PCB 120
The Defendant’s medical opinions
Dr Phillip Mutton, consultant occupational physician
51Dr Mutton prepared a medico-legal report for the defendant, which was dated 2 December 2020. Dr Mutton had examined the plaintiff on that day. I note, here, that Dr Mutton’s examination of the plaintiff was shortly prior to the plaintiff ceasing to work at New Gen. Dr Mutton’s opinion was that the plaintiff suffered from non-specific lower back pain. The plaintiff also has evidence of a small disc protrusion at L5-S1. There was no evidence of radiculopathy.[36] Dr Mutton’s opinion was that the plaintiff would not be able to engage in his pre-injury duties due to the nature of the heavy physical work.[37] In December 2020, Dr Mutton stated that the plaintiff could return to work in suitable employment on a three-days-a-week program.
[36]DCB 7
[37]DCB 8
52Dr Mutton’s report is somewhat dated at the time of the hearing, but ultimately was a good indicator of the plaintiff’s capacity to return to work.
Dr Michael Baynes, occupational physician
53Dr Baynes prepared a report dated 15 September 2021. Dr Baynes’ opinion was as follows:
“… [The plaintiff] is suffering from a chronic pain syndrome associated with chronic lower back pain in association with a small L5/S1 disc prolapse. There was no objective evidence of radiculopathy on clinical examination.”[38]
[38]DCB 12
54Dr Baynes stated that the plaintiff was not suited to return to his former employment of boilermaking.[39] In respect to the plaintiff undertaking suitable employment, Dr Baynes stated as follows:
“The … [plaintiff] is fit for alternative duties where there is no lifting greater than 10kg on an occasional basis and no repetitive lifting greater than 5kg. He should not repetitively lift from below knee height or above shoulder height and should be able to rotate postures. I believe he is fit for full-time hours.”[40]
[39]DCB 13
[40]DCB 13
55Dr Baynes’ opinion is more than two years old at the time of the hearing of this serious injury application.
Dr Joseph Slesenger, occupational physician
56Dr Slesenger prepared a report dated 5 September 2022 in respect to this application. Dr Slesenger took a history from the plaintiff that he had obtained work at Essendon Motorcycles as a subcontractor, working some five hours a day, five days per week.[41] Dr Slesenger’s opinion was that the plaintiff could not return to his pre-injury duties as the job demands lie outside his capacity limits.[42] Dr Slesenger was of the opinion that the plaintiff had the capacity to return to work performing suitable duties. Dr Slesenger stated that the roles of stores truckdriver and machine operator, were outside the plaintiff’s capacity limits. In Dr Slesenger’s opinion, the plaintiff could engage in the roles of crane hoist lift operator, construction supervisor, store clerk or warehouse administrator. Dr Slesenger does not give a direct opinion about how many hours per week the plaintiff is capable of engaging in alternative suitable employment.
[41]DCB 19
[42]DCB 21
Mr Roy Carey, consultant orthopaedic spine surgeon
57Mr Carey prepared a report dated 19 December 2022. Mr Carey took a history from the plaintiff that he was working in alternative employment, a total of twenty-five hours per week.[43] Mr Carey diagnosed the plaintiff as suffering from a partially resolved right L5-S1 disc protrusion, producing back pain and right S1 sensory symptoms and sensory signs. He noted that this condition had not completely recovered. In Mr Carey’s opinion, the plaintiff was going to suffer this discomfort and back pain into the foreseeable future.[44] Mr Carey’s opinion was that the plaintiff should not return to employment as a boilermaker. Mr Carey noted that the plaintiff was a genuine witness in relation to his complaints and showed no evidence of embellishment.[45]
[43]DCB 28
[44]PCB 29
[45]DCB 30
Dr Mary Wyatt, occupational physician
58Dr Wyatt prepared two reports, dated 5 October 2023 and 6 November 2023. Mr McKenzie, on behalf of the defendant, relied heavily on the report of Dr Wyatt to submit that the plaintiff had the capacity to engage in suitable employment on a full-time basis.
59In respect of the radiological evidence, Dr Wyatt stated as follows:
“The … [plaintiff’s] MRI of the lumbar spine is unremarkable. There is a disc protrusion at the lumbosacral level though without evidence of nerve root compression this is not of significance. This is a not uncommon finding.”[46]
[46]DCB 38
60The opinion concerning the radiological findings is at odds with the orthopaedic surgeons who have had the advantage of seeing the same radiological findings. Dr Wyatt stated that the plaintiff would benefit from better treatment, which would include an exercise physiologist and pain psychologist.[47] Dr Wyatt noted that the plaintiff was a straightforward man.[48] Dr Wyatt’s opinion was that the plaintiff suffers from chronic lower back pain. Curiously, Dr Wyatt makes the following statements in her report:
“I do not believe … [the plaintiff][ is fit to return to his normal job making and repairing buckets for plant equipment. I do not believe it would be sensible he return to that job long-term.
[… The plaintiff] has reasonably reduced his hours from full-time to five hours a day. He said that he comes home and lies down for half an hour and feels more comfortable after that, and then gets up and moves around.
With appropriate treatment and advice I do consider … [the plaintiff] will be fit for full-time work in customer service. It is not a physically demanding role and he can (sic) or stand during the day.
I believe there are realistic prospects for him to get back to some sheet metal work or welding duties in the fullness of time, if he has a mindset to do so through engaging in a greater level of activity and self-management.”[49]
(Emphasis added.)
[47]DCB 39
[48]DCB 40
[49]DCB 41
61The combination of these comments from Dr Wyatt are somewhat contradictory. On the one hand, she accepts that it is appropriate for the plaintiff to have reduced his hours from full-time to five hours a day. That is the current state of his employment work hours. Having stated that he could not return to his normal job of being a boilermaker, Dr Wyatt then says he has some prospect of returning to sheet-metal work or welding duties on a full-time basis.
62It is clear that Dr Wyatt is the only person, of all of these medical examiners, who finds that the plaintiff has a capacity to work full time in alternative employment.
63In her later report, dated 6 November 2023, Dr Wyatt is asked to comment on the jobs recommended by Nabenet. Dr Wyatt’s opinion was that the plaintiff was capable of performing the alternative duties of customer service, rental hire control, warehouse administration, sales representative and customer service adviser, as set out in the Nabenet report. Dr Wyatt then states:
“I note that … [the plaintiff] has reduced his hours of work to five hours per day not long ago and I consider that with some modest improvement in his exercise regime and day-to-day activity levels, these roles would be suitable for full-time hours of work.
It would be reasonable to make an allowance for working part-time for another four to six months, but I do not see … [the plaintiff] needing long-term reduced hours of work in the role he is doing at the moment, or other similar roles.”[50]
[50]DCB 45
64I take Dr Wyatt to be saying that, for the present time – that is, at the time of the hearing – it was appropriate for the plaintiff to work five hours a day, five days a week. She has then gone on to speculate that the plaintiff would improve over a period of four to six months from the time of her report in November 2023.
Conclusion
65I conclude, based on all of the agreed medical evidence, that the plaintiff is not fit to return to his pre-injury work of a boilermaker/welder. The plaintiff is capable of engaging in suitable employment, as outlined in the medical reports. I find that, based on all of the medical opinions, except for Dr Wyatt, that the plaintiff is capable of working twenty-five hours per week on the basis of five hours per day for five days.
66Over the period of time since the plaintiff was initially injured and off work, the plaintiff has returned to suitable alternative employment. I note one of the doctors has stated that he had no assistance from the return-to-work coordinators. In November 2021, the plaintiff was working twenty hours per week. By 5 September 2022, he was working twenty-five hours per week. He continued working twenty-five hours per week in December 2022. By March 2023, the plaintiff was working full-time hours, that is, thirty-eight hours per week. Due to his increasing symptomology, and the pain, the plaintiff reduced his hours to twenty-five hours per week in August 2023 and has continued to work those hours as he can.
67I accept that he is struggling with his symptoms to persistently and consistently work twenty-five hours per week. I have had the advantage of seeing the plaintiff in the witnessbox, and I accept him to be doing his utmost to return to as much employment and activity as he can, given his symptoms and injury to his lower back.
Analysis
68At the commencement of the proceedings, Mr McKenzie, on behalf of the defendant, submitted a document entitled “Defendant’s Statement of Calculations”. The evidence shows, and it was conceded by the defendant, that the plaintiff’s “without injury” earnings were $1,805 gross per week. The 60 per cent cut-off figure of those gross earnings is $1,083 gross per week. The plaintiff earns $875 gross per week from his twenty-five hours of employment at a rate of $35 gross per hour.[51]
[51]PCB 19-35
69I find that the plaintiff is unable to work any greater hours than twenty-five hours per week and that this situation and position is for the foreseeable future. The plaintiff’s gross earnings of $875 per week is less than the 60 per cent cut off mark of $1,083 gross per week. The plaintiff has satisfied, on the balance of probabilities, that, due to his lower back injury, his loss of earning capacity is greater than 40 per cent of his “without injury” earnings.
Orders
70I grant leave to the plaintiff to recover damages for loss of earnings and pain and suffering damages as a result of his employment with New Gen in 2020.
71As I have found the loss of earning capacity proven, there is no necessity, in this Judgment, to descend to the pain and suffering consequences outlined during the course of this hearing. I do note, however, that the plaintiff has lost his career and work of being a boilermaker, which is clearly a family-related tradition, when his father, brother and grandfather have worked in that area.
72I will hear the parties on costs.
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