Celik v Victorian WorkCover Authority
[2019] VCC 748
•29 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-18-04887
| ALI CELIK | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2019 | |
DATE OF JUDGMENT: | 29 May 2019 | |
CASE MAY BE CITED AS: | Celik v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 748 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application -pain and suffering and loss of earning capacity – whether residual work capacity - suitable employment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:The Herald & Weekly Times v Jessop [2014] VSCA 29; Guppy v VWA & Anor [2010] VSCA 164; Giankos v SPC Ardmona Operations Ltd [2009] VCC 819; Kelso v Tatiara Meat Co Pty Ltd (2010) 17 VR 592; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Weldemichael v ID Sales & Repairs Pty Ltd [2019] VSCA 68
Judgment: Leave granted in respect to pecuniary loss damages and pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr M Garnham | Zaparas Lawyers |
| For the Defendant | Mr T Storey | Thomson Geer |
HIS HONOUR:
Introduction
1 The plaintiff seeks the grant of a serious injury certificate in order to pursue damages at common law for pain and suffering and for economic loss pursuant to s325(2)(b)(i) and (ii) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). I am satisfied he is entitled to the relief.
2 The plaintiff was represented by Mr Harrison QC with Mr Garnham and the defendant was represented by Mr Storey of counsel.
Issues
3 There are five issues that I have identified that call for my determination.
4 The first issue is to identify the injury suffered by the plaintiff.
5 The second issue is to determine whether the plaintiff has recovered from the effects of the injury or if it is a long term permanent injury.
6 The third issue concerns whether the plaintiff would have continued to be fit to perform his pre-injury work had his employer not closed down its operations in November 2016.
7 The fourth issue is the basis for the calculation of earnings within the three years before and the three years after injury which most fairly reflects the plaintiff’s earning capacity had the injury not occurred.
8 The fifth issue is if the plaintiff fails to satisfy me that his loss of earning capacity is “serious”, whether the pain and suffering consequences of any impairment of a bodily function are “serious”.
Finding
9 Having considered all of the evidence, I am satisfied that the plaintiff has a residual capacity for work, but I am also satisfied that he has proved that his capacity is for work not exceeding 20 hours per week in suitable employment. I am satisfied that the employment identified by the defendant as constituting suitable employment is not suitable employment and meets the plaintiff’s limitations. Therefore, I am satisfied, that the plaintiff has established that the consequences of his injury suffered at work on 29 January 2016 are serious with respect to his loss of earning capacity. My reasons and analysis follow.
The plaintiff’s claim for economic loss
10 The hearing of the plaintiff’s application for a serious injury certificate was substantially devoted to his economic loss claim. The plaintiff argued that he has sustained a serious injury by reference to a loss of earning capacity. The onus rests with the plaintiff to establish a relevant loss of earning capacity. The test that the plaintiff was required to meet to establish a serious injury with respect to a loss of earning capacity is in addition to the narrative test that requires a comparison of the plaintiff’s injury with the range of impairments, losses of body function as the case may be for the purposes of his claim for pain and suffering.
11 I must not grant leave to the plaintiff by reason of a loss of earning capacity required under paragraph s325(2)(b) of the Act unless he has established in addition to the requirements of paragraph (c), that he has a loss of earning capacity of 40 per cent or more, measured as set out in paragraph (f), and that he will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more in accordance with paragraph (e).
12 The fact of the plaintiff’s proof that he has sustained a 40 per cent loss of earning capacity is a necessary but not sufficient condition because he must establish that the loss of earning capacity consequences of his injury can be fairly described “as being more than significant or marked, and as being at least very considerable.”[1]
[1]Guppy v VWA & Anor [2010] VSCA 164 at [17]
13 In assessing the plaintiff’s pre-injury earning capacity the parties provided figures which they said fairly represented the gross income the plaintiff was earning during the period of three years before the injury and, although the figures relied on by the plaintiff and the defendant differed, the difference is ultimately immaterial because of my finding that the plaintiff’s capacity for suitable employment does not exceed 20 hours.
Identifying the plaintiff’s pre-injury earnings
14 In The Herald & Weekly Times Limited & Anor v Jessop [2014] VSCA 292 at [42] to [44], the Court of Appeal identified four scenarios from which may be identified that which will most fairly reflect a plaintiff’s earning capacity if the injury had not occurred and they are:
·the gross income that the worker was earning during the period of three years before the injury;
·the gross income that the worker was capable of earning from personal exertion in the three years before the injury;
·the gross income the worker would have earned in the three years after the injury, if the injury did not occur;
·the gross income the worker would have been capable of earning from personal exertion of the three years after the injury, if the injury did not occur.
15 Mr Storey contended in the course of his final address that the measure that would most fairly reflect the plaintiff’s pre-injury earnings would be the gross sum of $60,791 per annum earned by the plaintiff in 2016 of which 60 per cent equates to $36,474 per annum or approximately $701.40 per week.
16 Mr Harrison submitted that the without injury earning capacity of the plaintiff should be the sum of $72,124 per annum or $1,387.00 per week. The difference between the two approaches is evident enough. The defendant’s proposed amount is the plaintiff’s gross earnings with Holden for the financial year 2016. The plaintiff’s proposed amount is based on the earnings of CNC Machine Operator referred to in a CoWork report of a CNC Operator’s wage standing at $1,300 per week and $72,124 per annum and which amount would be within the plaintiff’s three year window. I am satisfied that the best evidence of the plaintiff’s without injury earnings is $60,791 per annum because it reflects the actual earnings of the plaintiff in full time employment but working within the limitations of modified duties.
17 The plaintiff’s post-accident earning capacity is determined by the greater of his gross income from personal exertion (expressed at an annual rate) which he is:
·Earning, whether in suitable employment or not; or
·Capable of earning in suitable employment
18 Because the plaintiff is not earning any gross income the exercise required is to determine the gross amount that he is capable of earning in suitable employment. Therefore, the plaintiff must establish that he could not earn income in suitable employment in the amount of $701.40 per week.
19 Here the issue is joined as follows: The defendant submitted that the plaintiff is capable of earning gross income in suitable employment as follows:
Job
Average earnings
Gross per weekLight packer $913 Spare parts interpreter $1,103 Control room operator $1,253 CNC Machine Operator $1,387
Applicable principles
20 In going about the exercise of assessing the plaintiff’s loss of earning capacity and whether it is serious, I am required to consider all the evidence to determine the scenario that most fairly reflects his capacity. I note that it was not submitted that s 325(2)(g) of the Act had work to perform in this exercise by considering the loss of the plaintiff’s earning capacity referrable to rehabilitation or retraining or the plaintiff’s reasonableness of attempts to participate in rehabilitation or retraining. In any event, I am satisfied that the plaintiff has attempted but was unsuccessful in an effort to obtain employment as a bus driver. There was no other evidence led relevant to this consideration.
The plaintiff’s injury and the course it has taken
21 The plaintiff suffered the particular episode of back pain in January 2016 whilst at work when he was loading heavy crankshafts from a low table and he bent forward and felt pain in his low back. He had experienced episodes of back pain previously during his employment at Holden. Some questions were asked of the plaintiff in cross-examination about previous episodes of pain and the evidence reveals that he had experienced episodes of back pain in 2003 along with wrist pain but he worked on without time away from work. In 2014 he experienced an episode of back pain, however, he agreed that it did not result in work absence but he did see the Holden doctor and have physiotherapy. The plaintiff said that “I think after two months back to job, but light duty, not normal duty,” although it would appear by this answer, he meant that he was not absent from work but was on a form of light duties and then returned to normal duties.[2] He then worked on without incident performing his normal suite of full time duties until the episode in January 2016.
[2]Transcript (“T”) 12
22 Following the January 2016 work episode which the plaintiff described as different in nature because the earlier episode of pain was centred entirely in his low back, whereas, he described the January 2016 pain as concentrated “higher up,”[3] he saw Dr Eaton, the Holden company doctor, and it seems he had two weeks off duty and then returned to Holden and he continued working full time hours but on modified duties until he was made redundant in November 2016 because of the closure of his work place.
[3]T15
23 In about April 2016, the plaintiff saw his WorkCover doctor, Dr Baglar (the plaintiff’s family doctor apparently not being willing to treat WorkCover claimants).[4] Dr Baglar referred the plaintiff to Dr Gonsalvo, a neurosurgeon, who recommended conservative treatment. No one who has treated the plaintiff has suggested a requirement for, or a benefit to be gained, from surgery.
[4]T39
24 In support of its submission that the plaintiff has a capacity for suitable employment, the defendant placed reliance on his answers in cross-examination, to the effect, that had Holden not closed operations in November 2016 he would have continued to present at work.[5] I will have occasion to address what I made of this evidence more fully later in my reasons. I note that Mr Harrison submitted that I should bear in mind that the plaintiff’s capacity up until November 2016 was a capacity to undertake modified full time duties and despite the plaintiff’s evidence that but for the closure he would have continued at Holden, the reality of that occurring would have depended on the beneficence of Holden in allowing him to have continued indefinitely on modified duties or, following on its closure, for another hypothetical employer in like “heavy industry”[6] being prepared to employ the plaintiff with the same restrictions.
[5]T18
[6]Counsel for plaintiff at T77
25 It is not a requirement that for employment to be suitable employment it must be in a similar industry to that in which a plaintiff had been employed, but rather whether employment is suitable employment as understood in law, and noting that the definition of it contained in the Act does refer to the nature of the worker’s pre-injury employment as a relevant consideration. Suitable employment is defined relevantly as follows:
“suitable employment in relation to a worker, means employment in work for which the worker is currently suited —
a. having regard to the following —
i.the nature of the worker's incapacity and the details provided in medical information including but not limited to, the certificate of capacity supplied by the worker
ii.the nature of the worker's pre-injury employment
iii.the worker's age, education, skills and work experience
iv.the worker's place of residence
v.any plan or document prepared as part of the return to work planning process
vi.any occupational rehabilitation services that are being or have been, provided to or for the worker
b. regardless of whether —
i.the work or the employment is available or
ii.the work or the employment is of a type or nature that is generally available in the employment market
and for the purposes of Part 4, includes —
c. employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise and
d. employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market and
e. suitable training or vocational
re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties) but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education
26 Naturally enough not every factor of the definition of suitable employment will be relevant in every case. I will address those that I regard as relevant and the evidence in respect to them each.
The nature of the worker's incapacity
27 The plaintiff’s diagnosis of injury was not disputed by the parties. However, for the avoidance of doubt, the medicine and reports relied on in evidence by way of diagnosis by the defendant and the plaintiff in summary was as follows:
Defendant’s medical material
28 The defendant relied on the following evidence:
·Associate Professor McInnes reported on examination dated 5 April 2018 that the plaintiff suffers from an “aggravation of underling degenerative disease of the lumbosacral spine. He is presently undergoing continuing conservative management”.[7]
·Dr Wilkins, Occupational Physician, undertook a clinical assessment of the plaintiff on 14 June 2018 and produced a report for the defendant dated 20 June 2018 and noted that he had not been furnished with any radiological examinations or reports which “information would have been of considerable help to me in undertaking the assessment”. He diagnosed: “an L3/4 disc protrusion resulting in both local pain and radicular symptoms in his lower limbs”.[8]
·Associate Professor Boffa, is an Occupational Physician who examined the plaintiff on 20 December 2018 and furnished a report to the defendant of the same date and diagnosed “facet arthrogenic low back pain without radiculopathy”.[9]
·Dr Caroline Tan, Neurosurgeon, examined the plaintiff at the request of the defendant on 6 March 2019 and prepared a report of that date. She spent some time addressing diagnostic investigations of images and reports and said that despite some limitations on investigations to permit her to determine:
“…the more precise cause of his pain [it]…is almost certainly degenerative in nature and the most likely differential diagnoses are facetogenic or discogenic back pain. While an L3/4 disc herniation occurred at some point in the preceding years, it is not possible to establish when this disc herniation occurred.”[10]
[7]Defendant’s Court Book (“DCB”) 6
[8]DCB 38
[9]DCB 47
[10]DCB 52
Plaintiff’s medical material
29 The material relied on by the plaintiff in support of diagnosis may be summarised as follows and comprises:
· Dr Eaton dated 18 March 2016 – diagnosis relevant to the lower back injury – aggravation of lumbar spondylosis (approximately three months duration).[11]
· Mr Gonzalvo, a neuro and spinal surgeon whom Dr Baglar referred the plaintiff to on 24 August 2016 made a diagnosis by reference to an MRI scan of the plaintiff’s lumbar spine identifying a small disc prolapse with an extruded fragment at the L3-4 level, however, did not identify any obvious nerve root compression.[12]
[11]Plaintiff’s Courtbook (“PCB”) 21
[12]PCB 22
30 Robyn Horsley is an Occupational physician who examined the plaintiff twice on 22 November 2018 and again on 21 February 2019. In her first report she recorded that she had been furnished with the following material:
· Affidavit of Mr Ali Celik, affirmed on the 7th May 2018;
· Bone Scan dated the 4th February 2016;
· MRI of the Lumbar Spine dated the11th April 2016;
· Medical Report Dr Gonzalvo dated the 24th August 2016;
· Medical Reports Dr Baglar dated the 30th January 2017, 29th August 2017 and the 25th June 2018;
· Medical Report Mr James Malvaso dated the 27th February 2018;
· Transferrable Skills Report dated the 18th January 2017;
· Report Mr Peter Wilkins dated the 20th January 2018.[13]
[13]PCB 54
31 Dr Horsley said:
“Mr Celik sustained a significant injury to the lumbar spine on the 29th January 2016. An MRI on the 11th April 2016 confirmed ‘a right posterolateral disc herniation at L3/4 with disc material extending 6mm into the spinal canal, slightly indenting the anterior thecal sac with compression of the right L4 nerve root’. He has been managed conservatively. He presents with ongoing referred right leg pain with radicular features. He experiences some intermittent referred left leg pain.”[14]
[14]PCB 59
32 Professor Bittar, a Consultant Neurosurgeon examined the plaintiff on 4 December 2018 and by a report of that date to the plaintiff’s solicitors expressed his diagnosis as one of:
“1. L3/4 intervertebral disc prolapse with lower back pain and leg pain.
2. Aggravation of lumbar spondylosis.”[15]
[15]PCB 93
Conclusion on diagnosis
33 I am satisfied that the medical evidence identifies that the plaintiff has suffered an impairment to the function of the low back at L3/4 to S1 by way of injury to the spine.
34 I was not addressed by either party on the effect in law about aggravation or exacerbation and the effect on the application on the basis that the plaintiff’s injury suffered on 29 January 2016 was of this type. As I have noted, Mr Storey asked the plaintiff questions concerning two earlier events of back pain in the course of 2003 and again in 2014. In respect of 2014 there was no time off work. The plaintiff described the pain he experienced in January 2016, however, as different. Whilst I am satisfied that the plaintiff had occasions of pain I am also satisfied that he had been for some time prior to the January 2016 injury free from back pain. Regardless, I am satisfied that the January 2016 injury has been separated out in that the consequences from it by way of impairment to function are attributable to, in the sense of being caused by, the January 2016 injury as opposed to a pre-existing impairment and that the consequences to the plaintiff are serious.
The competing submissions on capacity for suitable employment
35 I am satisfied that the plaintiff remains under the restrictions imposed by Dr Baglar and they are relevant in considering whether the employment is suitable in the sense that the duties would permit of being performed having regard to them.
36 In final address, whilst Mr Harrison contended, that it would be open for me to find that the plaintiff had no current work capacity based on the opinion of Professor Bittar of 4 December 2018, the submission was sensibly not pressed by Senior Counsel presumably as he recognised that it told against the preponderance of medical evidence that the plaintiff does indeed have a capacity for suitable employment. I asked Mr Harrison if the plaintiff accepted he had a work capacity, and if so, what it was. Mr Harrison submitted, otherwise than by reference to Professor Bittar, that the plaintiff does have a current work capacity but that it is a restricted capacity to perform no more than 15 to 20 hours of work per week, and moreover, work of a type that takes account of his prevailing limitations. Mr Harrison said in this regard he relied specifically on the opinion of Dr Horsley.
Full time hours capacity or less?
37 The defendant’s submissions that the plaintiff cannot establish a 40 per cent or more loss of earning capacity depended on a finding by me that the plaintiff has a capacity for more than 15 to 20 hours per week as propounded by Dr Horsley and that he is able to undertake suitable employment.
38 The foundation of the defendant’s submission that the plaintiff’s capacity is one to undertake full time hours is that after his injury on 29 January 2016 and following his short period off work, he returned to work with Holden for a further 11 months working full time hours and also his evidence in answers to questions in cross-examination that he would have continued to do so had Holden not closed and that he would be working there today if he could.[16] The defendant also pointed out that Dr Baglar’s restrictions on the duties the plaintiff was performing at Holden, restrictions that remain current, do not limit the number of hours the plaintiff can work.
[16]T18
39 I have carefully considered the plaintiff’s evidence in answer to questions put to him in cross-examination. He was asked and responded to questions as follows:[17]
“Q. If you were not made redundant, you regarded yourself as being physically capable of performing the job that you had been performing. Do you agree with that?
A. (Direct) Before close I’m working light duty. Maybe after couple of months later, I’m not sure, maybe back to normal duty. Why not? I’m working. I like my job. Yes, and I’m still continue…
Q. And that’s what I’m saying, that if there was no redundancy you would have continued?
A. Yes.”
[17]T18
40 First, the plaintiff’s answer is not as clear to me as the defendant would have it. To accept that the plaintiff would have continued with Holden had there been no redundancy because of operational closure of the Plant, is not evidence of how long after November 2016 he would have continued in work.
41 Second, he was not asked whether based on his current assessment of his pain and limitations he would be still working today as opposed to agreeing he would have worked after November 2016. That might very well have been the intention behind the question but it was not the answer given by the plaintiff.
42 Third, particularly, in light of the plaintiff’s language limitations, I would not without more, assume that his answer should be regarded as greater than his expression of an intention to have remained with Holden beyond its closure in November 2016 had he been able to, and therefore, should be treated as confirmation by him that he would be able to do so at present.
43 Fourth, a further reason for me to give lesser probative worth to the plaintiff’s answers in cross-examination about his current capacity is that his evidence of pain recounted to doctors in more recent time identifies the development of chronic pain and this affliction would be inconsistent with me treating his answer in the passage cited as his endorsement of his capacity to have remained undertaking full time hours of work with Holden performing his modified duties.
44 Fifth, there is contrary evidence that the plaintiff can work full time hours in suitable employment and it consists of the opinions of two specialists to whom the plaintiff was sent for clinical examination by the defendant. Dr Tan, neurosurgeon, has said that the plaintiff’s capacity for suitable employment is limited to 6 hours per week, and Dr Horsley’s opinion that the plaintiff’s capacity is probably for part time hours in suitable employment of between 15 to 20 hours per week.
45 The defendant criticised the finding by Dr Horsley of the plaintiff’s capacity and by implication, the very substantially more limited capacity for hours expressed by Dr Tan, because, it was argued, the conclusion arrived at about capacity by Dr Horsley failed to address why she arrived at it in the face of the plaintiff having proved himself capable of undertaking full time hours at Holden after his injury and until it shut down in November 2016. In developing his submission, Mr Storey argued that there is an absence of objective evidence that the plaintiff’s condition has worsened since he concluded his employment with Holden in November 2016, and this is reflected by the fact that the plaintiff’s medication has not increased since his injury. Mr Storey observed that the alteration to the plaintiff’s medication has been marginal and limited to a substitution of Panadeine Forte with another over the counter pain relief tablet and as regards the drug Mobic[18] to relieve pain is concerned, Mr Storey referred to the plaintiff’s second affidavit in which he deposed that he has reduced its frequency and dosage. Thus, Mr Storey submitted, the opinions from Dr Tan and Dr Horsley fail to explain why the plaintiff could not now perform full time hours as opposed to 6 hours or 15 to 20 hours and, therefore, I should not be persuaded by their opinions.
[18]A brand name of non-steroidal anti-inflammatory drug
46 As to the plaintiff’s medication,[19] the plaintiff said that he has been concerned about addiction. In Kelso v Tatiara Meat Co Pty Ltd[20] the Court of Appeal said that “[T]he endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence”. That has been and continues to be the plaintiff’s situation.
[19]Exhibit P 10
[20](2010) 17 VR 592 at para 75 Dodds-Streeton JA with whom Buchanan Nettle, Ashley and Kellam JJA agreed
47 I do, however, agree with the observation levelled at the sufficiency of the reasoning exposed by Dr Tan that the number of hours the plaintiff might be able to work in suitable employment is no more than 6. However, I am not persuaded that there is such a gap in the reasoning expressed in Dr Horsley’s opinion.
48 In Dr Horsley’s first report, she considered that the plaintiff has a capacity for “probably part-time within restrictions… in the vicinity of 15 to 20 hours per week”.[21] In her second report dated 21 February 2019, Dr Horsley expressed the opinion that the plaintiff “presents with limited capacity for work” and the limitation she reiterated was in the order of 15 to 20 hours per week of suitable employment.[22] The body of the opinion expressed by Dr Horsley reveals that she was aware that the plaintiff had returned to Holden following injury and that he “was previously working eight hour days with no overtime, but working with the restrictions – a lifting limit of 5 to 10 kgs, avoidance of repetitive bending and lifting”.[23]
[21]PCB 61
[22]PCB 68
[23]PCB 55
49 There are a number of matters that can be seen as informing Dr Horsley’s opinion of the number of hours she believed the plaintiff probably has a capacity to work and they stem from events that have transpired since he ceased work with Holden. A matter of some significance in my judgment is the plaintiff’s failed effort to return to work as a bus driver referred to by Dr Horsley when she wrote that whilst the plaintiff managed to undertake induction after “three days, there was an increase in back pain. He returned to his GP and was put off work”.[24] Another matter of significance in my judgment referred to by Dr Horsley is the plaintiff presenting:
[24]PCB 57
“…with chronic back pain. He states that prior to two months ago, his back pain was not present on a chronic basis; he was having periods when it was more intermittent. It is now chronic and is now little more left sided than right sided. He can wake up with the pain, depending upon his level of activity. The discomfort in his lumbar spine varies between 4 and 5 out of 10 on the visual analogue scale.
A month ago, he stated that he experienced a ‘locking sensation’ in his lumbar spine, which lasted for days and was between 8 and 10 out of 10 on the visual analogue scale.
He has right leg pain that comes and goes. It occurs a couple of times per week. It radiates to the medial ankle. He can experience ‘pulsating pain’ that lasts for three to five hours, sometimes it can last all day. He experiences ‘short, sharp pain’ that lasts a few seconds. It is 7 to 8 out of 10 on the visual analogue scale and then it slows down and resolves over a few minutes. He then has a few minutes of respite and the pain returns once more.
On the left side, he experiences occasional discomfort that radiates from the left buttock into the anterior thigh. When it does occur, it is 5 to 6 out of 10 on the visual analogue scale. It can last a couple of hours. It depends upon his level of activity.
He has intermittent paresthesiae felt into all of the toes of the right foot. It comes and goes. It is infrequent.
…
Mr Celik has reduced functional tolerances. His sitting tolerance is 30 minutes. His static standing tolerance is 10 to 15 minutes. His driving tolerance is 30 to 45 minutes in an automatic vehicle. His walking tolerance is about 30 minutes. His dynamic standing tolerance is 30 minutes”.[25]
[25]PCB 57-58
50 The development of chronic pain was captured in the following exchange between the plaintiff and Mr Storey:
… (To witness) You referred before to attending this English course and you acknowledged that some days you would have pain and some days you would not have pain?‑‑‑Yeah.
Does that continue to be the case today?‑‑‑(Through Interpreter) At the moment I am experiencing more pain. It's getting more and more right now.[26]
… Currently, there are some days where you have no pain and there are some days where you do have pain. Do you agree with that?‑‑‑(Through Interpreter) My pain level depends on the tasks I carry out during that day. Sometimes I'm quite painful. Sometimes I'm less painful.
Yes. But what I'm putting to you is that there are sometimes where there's no pain. Do you agree with that?‑‑‑No, that's not right.[27]
[26]T20 L12-18
[27]T20 L28- T21 L4
51 It was elsewhere suggested to the plaintiff that there are some days he does not experience pain and he answered; “Sorry, I don’t have days pain free.”[28]
[28]T24 L15-16
52 Overall, in my assessment of the evidence, it is not a simple matter of equating the plaintiff’s capacity in and throughout 2016 with Holden to a current capacity for suitable employment and regard must be had to the evidence of a significant alteration and worsening of the plaintiff’s pain. I am required to determine the plaintiff’s capacity for suitable employment at the date of the hearing of the application. It is not for me to undertake a form of judicial review of medical opinions but instead, having regard to an assessment of all of the evidence, including but not limited to the available medicine and bearing in mind the meaning to be afforded “suitable employment,” determine if the plaintiff has the required capacity for suitable employment in the context of a claim alleging a serious loss of earning capacity.
The plaintiff’s account of pain
53 In my judgment, Dr Horsley’s opinion of the plaintiff’s capacity for part time hours, is supported by the plaintiff’s evidence of increasing pain and of his assessment of his functional tolerances, this being evidence that I accept, and that I am satisfied amounts to a deterioration since he ceased employment with Holden. Pain in consequence of an injury is relevant as part of the overall assessment I am required to reach about a capacity to undertake suitable employment.[29]
[29]Giankos v SPC Ardmona Operations Ltd [2009] VCC 819 at [105]
Surveillance footage
54 In an effort to cast doubt on the veracity of the plaintiff’s evidence, and hence his credibility, the defendant played surveillance footage taken of the plaintiff.[30] It was agreed between the parties that the defendant undertook the following periods of surveillance of the plaintiff: 1 to 3 August 2018 for total time of 15 hours and on 8, 12 and 26 February and 1 and 6 March 2019 for a total of 20 hours. Footage shown in court was however limited to surveillance between 11.10 am to 11.51 am on 8 February and 11.43 am to 1.53 pm on 6 March 2019.
[30]Exhibit D 4
55 The surveillance identified the plaintiff involved in a number of activities. He can be seen bending down in his garden and performing tasks under the bonnet of a white vehicle and apparently cleaning the engine and parts. He can be seen carrying a green water can and using a long handled broom to clean the roof of a small red sedan and holding a hose to clean the roof of the red car and leaning over its windscreen to clean the same. He can be seen bending down to pick up a garden hose in the front yard and watering the pavement and driveway. He is observed as well walking down the street smoking and carrying papers under his left arm and as well walking around a Bunnings store and making a purchase. Mr Storey put to the plaintiff that he appeared at all times to be relaxed and conducting himself in a leisurely manner that belied a person who was subjected to chronic pain. The plaintiff said the footage showed him resting his left hand on the bonnet of the vehicles because that way he “could comfort my back and relieve the pressure in my back.”[31] I accept his account.
[31]T37
Probative worth of surveillance
56 It is prudent to be cautious about the extent of proof of the plaintiff’s capacity that can be revealed by the surveillance footage. Indeed, I commented to Mr Harrison in the course of his final address, that the plaintiff’s account of pain appeared at odds with the apparent degree of vigour he appeared to exhibit while performing work under the bonnet of the white vehicle and cleaning detritus from the duco of the red car. However, I accept the validity of the point expressed by Mr Harrison in response, that the activities observed are broken and, for example, the activity of cleaning is arguably moderated by the plaintiff resting his left arm while using his dormant right hand. In any event, I am not satisfied that the periods and the activities, are so compelling as to lead me to conclude that they serve as a better or more reliable indication of the plaintiff’s capacity to undertake suitable employment than his account of pain and the limitations that I accept prevail together with the opinions to which I have referred and preferred.
57 I am satisfied that the plaintiff’s capacity for suitable employment is a capacity not exceeding 20 hours per week. I am also satisfied that the plaintiff’s position is permanent within the meaning of the Act in that it will persist for the foreseeable future. The body of opinions from Professor Bittar, the physiotherapist Mr Malvaso, who although contemplating continued improvement nonetheless, posits a likely permanent impairment to the lumbar spine, and Dr Horsley’s opinion that the plaintiff’s prognosis is guarded but with improved tolerances, is evidence enough of that. Furthermore such effort as the plaintiff has recently tried by way of a return to employment as a bus driver has failed.
58 Accordingly, based on the plaintiff’s pre-injury earnings and his capacity he has established a loss of 40% or more and therefore his loss of earning capacity is “serious”.
59 In the event that I am wrong about the plaintiff’s capacity to perform suitable employment not exceeding 20 hours per week and that I should have been satisfied he has a capacity for full time hours, then nonetheless, I would not have been satisfied that the employment identified by the defendant, is suitable employment in any event and therefore his loss is serious for the reasons that follow.
Why the employment is not suitable employment - the nature of the plaintiff’s pre-injury employment
60 In undertaking the assessment of the plaintiff’s capacity for suitable employment, I have considered the nature of his pre-injury employment, which is that he has held effectively one heavy manufacturing job working in what was once Australia’s car manufacturing industry. His work for Holden Australia was lengthy, and spanned more than 19 years, until he was made redundant in November 2016 upon the operational closure of its manufacturing plant. He holds very few transferrable skills.
61 He commenced employment with Holden in April 1997 and for the first seven years he worked in Port Melbourne at its steel foundry. The work was physically demanding work entailing a lot of hammer and chisel including cleaning away excess metal on engines.”[32] He then moved to work as a machine operator mainly on the engine block line and occasionally he worked on the crank and headlines. The work of a machine operator was physically demanding. It included the setting up and adjustment of machines and the repetitive lifting and manual handling of engine parts and blocks. On the crank line the plaintiff’s job involved packing blocks for overseas. Cranks weighed between 20 to 25 kg. It also included having to forcefully use tools such as hammers, levers and spanners. Prior to 2014, he regularly did over time, but after his back injury in 2014 he did not do any further overtime.
[32]PCB 2 para 6
The plaintiff’s age, education, skills and work experience
62 The plaintiff is 51 years of age. He has no formal qualifications and his experience has been gained with Holden using heavy equipment. In my view it is reasonable to consider that the plaintiff’s age and lack of qualifications are disadvantages to employment.
63 The plaintiff was born in Turkey. Following completion of his schooling, he worked in and operated a Turkish coffee house and worked as a truck driver and came to Australia as a refugee in 1994. He obtained employment in a shoe factory and then commenced his employment with Holden. His work experience is very limited.
The worker’s place of residence
64 Based on the spread of employment advertisement’s related to the proposed suitable employment referred to in the CoWork report relied on by the defendant, I am satisfied that the plaintiff’s place of residence is not a disinhibiting factor to suitable employment. He has a car and a driver’s licence.
Language difficulties
65 As part of a consideration of the plaintiff’s suitability for employment I am satisfied that his proficiency with English is important. The plaintiff gave evidence partially via an interpreter. There is an element of uncertainty about the extent of the plaintiff’s ability to speak and comprehend English. The defendant, however, did not suggest the attendance by the plaintiff with an interpreter at medico legal appointments or at the hearing of his application for a serious injury certificate was a ruse. The contents of various medico legal reports relied on by the parties identified that the plaintiff’s wife attended with him at a number of appointments and acted as his interpreter due to his language limitations. The plaintiff said that his wife came to Australia as a young child and therefore her command of English is far superior to his own.
66 Having listened to and observed the plaintiff over the course of his evidence, I am satisfied that he has a functional command of English. He said that over his many years with Holden he received daily instructions about going about his work. He said that his supervisor spoke to him in English. He denied that he encountered difficulties performing his daily tasks because of English language limitations but he also said that the nature of the work he performed was such that once he was told and then shown what to do with the machinery he operated, it became what appeared to me to best be described as a rote process. It struck me that the requirements of his work at Holden had a substantial degree of repetition and uniformity to it such that the ability to be linguistically competent was not a matter of importance.
67 I am satisfied that the plaintiff’s ability in spoken English, although functional, is not fluent. He displayed a tendency to break into his native language whenever questions were put to him by either counsel that were other than straightforward. Sometimes he had a run of questions and answers that was better than at other times. Of course the atmosphere of a court room in a contested hearing is not commensurate with an everyday workplace and although on occasions the plaintiff held his own with counsel in responding to questions, all things considered, I am satisfied that his English capacity is a reasonably significant impediment to him undertaking suitable employment.
68 The plaintiff said that he wanted to return to work if he could find suitable employment, however, he said that none of the positions put forward by the defendant in the CoWork report dated April 2019 appeared to be work he was capable of performing by reason of a lack of suitability in his skill set and experience and taken together with his functional limitations and restrictions.
69 I assessed the plaintiff as a genuine and credible man and that he has a desire to be more engaged than at present if his capacity permitted of it.
70 As well as the plaintiff’s credibility, I have naturally enough taken into account the fact that he did exhibit over a period of 11 months from the date of injury to the date of his redundancy, a capacity for full time hours, although performing modified duties including a limit of 5 to 10 kgs and the avoidance of repetitive bending and lifting, however, as I have already stated, I have also concluded that the plaintiff’s present condition is a worsened condition since November 2016 and that the period of time he worked in 2016 is not the best available evidence in determining his capacity for the activities required in the suitable employment.
71 I have also taken into account the opinion of Dr Horsley that the plaintiff has experienced increasing, and what she described now to be chronic pain.
72 I have also taken into account the plaintiff’s own evidence that he suffers from chronic pain and that the severity of it varies with the day’s progression and the level of his activity. I accept his account.
Capacity – the medical opinions
73 The defendant submitted that I should not be satisfied that Dr Horsley exposed her reasoning in reaching the opinion expressed by her in her two reports that with “an improvement in functional tolerances, he probably does have capacity for work at least on a part time basis, 15 to 20 hours per week, within the restrictions as outlined above”[33] (i.e. the restrictions that were in place at Holden). For the reasons I have already expressed, I do not accept the defendant’s characterisation of Dr Horsley’s opinion as containing such deficiencies.
[33]DCB 69
74 Associate Professor McInnes in a report prepared at the request of the EML Workers Compensation Victoria expressed no opinion on the plaintiff’s capacity for suitable employment or the hours for the same.
75 Dr Wilkins, Occupational Physician, in a report dated 20 June 2018, stated that the plaintiff is unable to lift weights of more than 5 kg and can only drive or walk for half an hour and when asked by the defendant to express an opinion whether the plaintiff can undertake pre-injury duties and hours, said he “cannot do so because of continuing pain.”[34] He also said that the restrictions contained in the certificate of capacity of the Dr Baglar’s report dated 21 May 2018 “are appropriate and necessary if Mr Celik is to return to work, and I see no need for further restrictions beyond those set out in that certificate.”[35] He said the plaintiff “does have a limited work capacity for suitable employment.”[36] He did not express any opinion on the number of hours of work the plaintiff could perform because no limit on hours was contained in the certificate of Dr Baglar. In relation to suitable employment, and by reference to a Recovre report dated 18 January 2017, he said he agreed “in general terms with the contents of that report” but unfortunately did not say what parts in general he did agree with or why. He did say that the plaintiff’s “poor language skills necessarily have adverse effects.”[37] Dr Wilkin’s report therefore is not of assistance.
[34]DCB 38
[35]DCB 40
[36]DCB 39
[37]DCB 40
76 In December 2018 Associate Professor Boffa, who is an Occupational Physician, wrote to the defendant and noted that in November 2018 the plaintiff had attempted employment as a bus driver but the work lasted only two days before he could no longer cope due to pain. He reported limitations on sitting and standing being restricted to 20-30 minutes and dynamic standing and walking limited to 30 minutes and that the plaintiff had said he avoids bending, crouching, kneeling, pushing, pulling, lift and carrying more than 1 kg at home and that he is able to drive for 30 minutes and use public transport. Associate Professor Boffa wrote that the plaintiff was unable to return to pre-injury duties and hours (i.e. full time hours) because of pain and functional limitations. He wrote of the plaintiff having a capacity for a graduated return to part time forklift driving[38] with breaks as needed without manual handling but not for any other listed roles owing to unsuitable manual handling. He said the plaintiff’s low back pain, limited functional tolerances, experience, training and English language skills remain barriers to a return to suitable employment. Although Associate Professor Boffa was addressing the plaintiff’s capacity to undertake duties in jobs that the defendants did not press in the course of the hearing, the report has some relevance because it is an opinion from a specialist occupational physician and addressed the plaintiff’s capacity to undertake full time hours, albeit in earlier identified jobs, but is comparatively recent in time.
[38]DCB 48; One of the previous jobs proposed by the defendant as amounting to “suitable employment” but not pursued at hearing by the defendant
77 Dr Tan’s opinion as I have already noted is that the plaintiff has a current work capacity for suitable employment “potentially” by working 6 hours per week, however, she said that his suitable employment options are so limited that they may not exist in the real world.[39] She said that work “where he may sit or stand or walk round at any time and of his own volition is necessary. He should also have restrictions on lifting, pushing or pulling more than 5 kilograms and should not be working with such loads above shoulder level or below waist level.”[40] Dr Tan thought that generally speaking such restrictions mean the plaintiff is limited to office based work but he does not have the English language skills to work in the average Australian office situation.[41]
[39]Such an opinion arguably offends against the rule relating to expertise
[40]DCB 54
[41] DCB 54 -This is also a matter of opinion that is outside the expertise of the expert
78 I have accepted that Dr Tan’s opinion lacks a path of reasoning that reveals how she arrived at the number of hours the plaintiff could work, and in that sense, it is unhelpful. As well, her opinion that the plaintiff is effectively “unemployable” in the real world because of non-capacity related considerations, fall outside the proper scope of her expertise. Nonetheless, Dr Tan on no measure of analysis considers the plaintiff to have a capacity for hours of work that would defeat his economic loss claim.
79 The defendant relied on the opinion of the plaintiff’s physiotherapist Mr Malvaso who first saw the plaintiff on 27 March 2017 and who has said in two reports that the plaintiff has a capacity for suitable employment that it is “wide ranging”[42] so long as it is employment that can accommodate his medical restrictions. I am not inclined to place much store in his opinion that the plaintiff’s capacity is “wide ranging” because I find that it sits oddly with his recognition that the plaintiff tried but failed in his attempt to become a bus driver due to “increased persistent pain in his lumbar spine…”[43]
[42]Exhibit P 6, PCB 35-37 at 37 and PCB 38-40 at 40
[43]PCB 40
The Rehabilitation Material
80 I do not intend to address other than the CoWork Vocational Assessment report dated 26 April 2009. The defendant did not submit that I should do so and other reports obtained were not received into evidence despite some of the medical evidence referring to them.
The CoWork report[44]
[44]Exhibit D 3, DCB 94-146
81 An aspect of the conduct of the application is that the defendant did not tender earlier rehabilitation and work reports it obtained of the plaintiff’s capacity for suitable employment and it conducted its cross-examination of the plaintiff by reference to suitable employment in the jobs identified in the CoWork report of April 2019. However, because the provision of the CoWork report was so proximate to the final hearing, no medical treating doctor or specialist or medico legal expert relied on by either the plaintiff or defendant had the chance to address the plaintiff’s functional limitations and physical capacities and tolerances requisite to the particular identified positions. No objection was taken by the plaintiff about the reliance on the CoWork report. Furthermore, the defendant argued that if the Court extrapolated the opinions expressed in previous medical opinions concerning the plaintiff’s capacity for suitable employment in jobs identified in earlier vocational reports, then it would be open to me to find, that the plaintiff could undertake the suitable employment identified in the April 2009 CoWork report. Regardless of the correctness of that submission, about which I hold doubt, in any event, the plaintiff was asked a number of questions by Mr Harrison in re-examination of his capacity physically, and by reference to other relevant considerations, to undertake the identified proposed suitable employment in the CoWork report.
82 The defendant relied on the following suitable employment:[45]
[45]DCB 98
Spare Parts Interpreter
CNC Machine Operator
Control Room Monitor (Security)
Packer (light)
Analysing suitable employment
83 In Weldemichael v ID Sales & Repairs Pty Ltd[46], the Court of Appeal said that:
[46][2019] VSCA 68 at [93]-[94]
“The proper consideration of the applicant’s capacity to perform light assembly work did not require some minute consideration of every aspect of a particular position that might or might not have been suitable for the applicant”. Moreover, the Court added that the “proper analysis, and one which was carried out by the judge, involved a broader consideration of all of the evidence.”
I have approached my consideration of the issue with this guidance in mind.
84 The position of Spare Parts Interpreter involves selling motor vehicle accessories and parts either in the retail or wholesale sector. I am not persuaded that the plaintiff has by reason of his incapacity, his education, skills and work experience and his language limitations a realistic capacity to undertake the job of Spare Parts Interpreter.
85 The second identified suitable employment of a Computer Numeric Control Machine Operator (CNC) was identified by the CoWork author as requiring the carrying out and assistance with programming work related to the profiling, manufacture or maintenance of sheet metal goods, components or services principally through the use of CNC profile equipment. It requires a proficiency in drafting and generating drawings using relevant CAD software. Other requirements referrable to the skill set for such a job require the ability to produce CNC programs through relevant software. The plaintiff does not possess the requisite skills for such a position.
86 The physical demands of the position of a CNC operator as observed by the report’s author at a work site included standing when talking with staff and a requirement for touch typing skills and so as to minimise the need to look down at a keyboard but with an opportunity to stand frequently. Being seated was the predominant posture adopted in undertaking the programming duties observed, but standing and stretching was also observed. Reaching lifting or bending was not observed as a feature of the job. The author wrote that the job required concentration and focus and the pace of the work appeared to vary from business to business. Advertisements sought persons with a mechanical engineering background, a capacity use a basic metrology equipment (which I assume in the absence of any evidence suggesting to the contrary the plaintiff does not have); a familiarity with 3D CAD modelling and basic computer software (skills that were not suggested the plaintiff possesses) and very good communication skills both written and verbal (which the plaintiff does not have) and familiarity with quality management systems and experience in the preparation and management of engineering drawings for machinery. Light office and production area housekeeping was a feature of one of the advertisements.
87 Another advertisement for a position as a CNC operator identified a requirement for reasonable overtime which would bring into question the ongoing and systematic reliability of the plaintiff to perform the role given that overtime had not been a feature of the plaintiff’s work with Holden when performing modified duties. One advertisement identified the need for a candidate to possess mathematical and mechanical aptitude as well as strong communication and interpersonal skills. At the risk of repetition, the job is not suitable employment for the plaintiff, by reason of his suite of limitations that I have already addressed.
88 The next position identified by the defendant is one of a control room monitor. The report’s author undertook an on-site visit to a workplace and as a result she described tasks such as the monitoring of security alarms and surveillance equipment and contacting supervisors, the police or the fire brigade if security is breached or fire detected. The position requires a capacity to work without supervision and good communication skills with “clear pronunciation”. The plaintiff does not possess this ability. The physical demands of the job were identified as an ability to be seated as the dominant posture and the author reported that there is a capacity to stretch or move around as required. I am not persuaded that due to the plaintiff’s English language difficulties alone that the position is a realistic option for the plaintiff.
89 The last position identified is “Packer (Light)”, a job described as involving weighing, wrapping, sealing and labelling products in preparation for despatch. The report’s author identified a need for accurate, high-quality assembly and packing of tablets/capsules into bottles, cartons or blister packs. She identified three fully automated production lines that operated to fill containers. She said that process worker would monitor the automated process, inspecting the same for quality control and machine malfunctioning, before placing finished product into cartons for distribution. Major responsibilities for such a position are the ability to “centre-lines” following instructions from machine operation, to be alert for defective product by accurate inspection and monitoring, to refill machine with bulk product as required, with the provision of two tea breaks and a 30 minute lunch break. The physical demands of the job are standing whilst working on the production line to perform packaging tasks and that stools are available for staff to use to sit whilst watching the line if they choose to do so. Bending might be required when stacking cartons and boxes with a mechanical device available to minimise the need to bend. No lifting was required but the author observed that the work was constant with the pace of it dictated by the operation of the machine. Rotation between the different areas in the packaging room occurs two hourly.
90 The plaintiff’s chronic pain and the limitations imposed by the need to be able to move as required by him and judged against an obligation to meet and maintain quality on automated production lines in which a rotation would occur every two hours do not meet the plaintiff’s limitations in my opinion.
Pain and suffering
91 Given that the plaintiff has discharged the burden of proof in relation to pecuniary loss damages, the requirements of the Act in relation to pain and suffering damages have also been satisfied. I would refer to the decision of the Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle[47] and to numerous decisions of this Court.
[47][2009] VSCA 170
92 In any event, the obvious impact upon the plaintiff’s everyday life occasioned by the injury is sufficient to satisfy the statutory requirements. The plaintiff was prescribed anti-depressant medication in 2017 due to factors including difficulties with his sleep. He described the need to change his position a lot at night and he no longer sleeps in the same bed with his wife. The plaintiff said he has lost a lot of the self-esteem that came from working. He said that he is dependent on his son to undertake duties around the home such as mowing the lawn. He said that he previously derived pleasure from the activity of going on walks often with his dog but his back pain has limited his capacity to walk for longer distances. In his second affidavit he addressed the effects on his observance of his religious faith. He said when he attends his mosque of a Friday he will normally position himself against a wall for back support and is inhibited from worshipping in the orthodox fashion. The plaintiff deposed as well to the consequences he has encountered as a grandfather as a result of his injury. He said that he has three grandchildren aged from two to seven years whom he sees most weeks and because of his restrictions and limitations caused by his back injury he has difficulty in in playing and interacting with them and which “is a source of disappointment”[48] to him. I have considered that despite the pain and limitations the plaintiff has described he has managed to obtain some enjoyment from a recent uptake of the pursuit of light woodwork in his shed at home. However, when all of the consequences of the plaintiff’s functional limitations from the injury to his spine are considered overall, and when considered against a range of impairments which I have done, I am satisfied that the consequences are more than marked and are at least very considerable.
[48] PCB 10 para 13
Conclusion
93 The plaintiff is successful. He has discharged his onus of proof. Leave is granted to him to commence proceedings in respect of both pecuniary loss damages and pain and suffering damages.
94 I shall hear the parties as to any further orders that are required.
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