Cinar v Frankston Furniture Pty Ltd
[2014] VCC 2123
•28 October 2014 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01976
| LEVENT CINAR | Plaintiff |
| v | |
| FRANKSTON FURNITURE PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 October 2014 | |
DATE OF JUDGMENT: | 28 October 2014 (Revised) | |
CASE MAY BE CITED AS: | Cinar v Frankston Furniture Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2123 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the left lower limb – loss of earning capacity only.
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hayhill Pty Ltd v Hodge [2006] VSCA 194; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr E Makowski | Zaparas Lawyers |
| For the Defendant | Mr J O’Brien | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 27 October 2010 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only. Prior to the hearing, the defendant conceded serious injury for pain and suffering.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the left lower limb.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
6 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
10 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
11 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
12 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] Grech v Orica Australia Pty Ltd Anor[2] and Hayhill Pty Ltd v Hodge[3] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
[3][2006] VSCA 194
The Plaintiff’s evidence
14 The plaintiff is presently aged fifty-six, having been born in Turkey in 1958. After migrating to Australia, he attended technical school and completed several retail management courses.
15 The plaintiff confirmed in cross-examination that he was an experienced tool setter, working for Robert Bosch when he first came to Australia.[4] He helped setting up machines and assisted fellow workers on the factory floor.
[4]Transcript (“T”) 16
16 The plaintiff has basically always worked in retail, working with companies such as Billy Guyatts and Chandlers, holding positions such as store manager and merchandising coordinator.
17 After eleven years, the plaintiff went to Saba Furniture and later, Billy Guyatts. At Billy Guyatts, he started in sales and worked his way up to store manager. He was then the visual merchandising coordinator for Victoria, looking after all the stores in the state.[5]
[5]T18
18 In this role, the plaintiff was required to remove all the merchandise from the shop floor and replace it with other stock, with the assistance of co-workers.
19 The plaintiff first worked for Harvey Norman in 1994, where he had different roles. From 2008, he commenced work at its Frankston store in the furniture department. The store was franchised into different departments so the plaintiff’s actual employer was Frankston Furniture Pty Ltd, who had the franchise for the furniture section.
20 The plaintiff worked his way up to second in charge of the furniture section. The boss was the franchisee. There were about thirteen people in the section.[6]
[6]T18
21 Only ten per cent of that job was administrative. The balance was making sure all the advertised lines were on the floor; chasing up customer orders; making sure the warehouse received available stock; taking things off the floor and making sure customers were served and being looked after. They all had a desk.[7]
[7]T20
22 Prior to the said date, the plaintiff had always enjoyed outdoor activities and keeping fit. He had had some pain in his left foot in July 2009, for which he saw Dr Lee. He had an ultrasound and was told to rest but he did not recall having any time off and the problem completely settled down.
23 On the said date, the plaintiff climbed a ladder to re-affix a banner that had come down. As he descended, when he put his left foot onto a clear plastic stand on the side of the ladder, he twisted and rolled his left foot and ankle. His whole foot suddenly swelled up and there was a lot of pain (“the incident”).
24 The plaintiff attended his general practitioner the following day, who arranged an x‑ray of his foot and ankle. Because of ongoing pain, the plaintiff was referred to Mr W Uttke, surgeon, who suggested rest.
25 The plaintiff continued working but avoided tasks that he knew would aggravate his pain. Where possible, he avoided spending time on his feet and he tried to do more administrative work.
26 The plaintiff continued working until about a month before the surgery, but not his usual duties. He had to sit in the car for about an hour and rest because of foot pain. He was unable to move the floor around or do any merchandising or things that he used to do. He just tried to serve customers but his foot was getting worse and worse.[8]
[8]T21
27 As things were not improving and the plaintiff was having problems with his normal footwear, he asked Dr Lee for a second opinion, and in April 2007, the plaintiff attended Mr Edwards, an orthopaedic surgeon, expert in foot and ankle injuries.
28 Mr Edwards examined the plaintiff and organised a bone scan and a CT scan of the plaintiff’s foot. He highly recommended surgery and advised the plaintiff if he did not have it, he would be facing major changes in his foot.
29 On 27 July 2011, Mr Edwards operated, fusing some bones in the plaintiff’s left mid foot area (“the surgery”). The plaintiff was in hospital for five days and then discharged with a plaster cast.
30 The plaintiff was then given assistance by Paul Retschko, orthotist.
31 The plaintiff tried to get back to work after the surgery. About a year later, he spoke to the franchisee and asked if he could come in and do some work but he was told those areas had already been covered and that he would get back to the plaintiff him but he never did. The plaintiff could not get back to work because of his circumstances.[9]
[9]T22
32 A position was put to the plaintiff which he was not able to do and his doctor did not allow him to do.[10]
[10]T22
33 The plaintiff received weekly payments until early 2014, supported by total incapacity certificates provide by his general practitioner. His employment was terminated in August 2012 because he was unfit for work for the 38 hours required by management. He would like to be working. In the 12 months before injury, the plaintiff had gross earnings of about $60,000 and had no plans to retire.
34 The plaintiff attended IPAR every fortnight for about twelve to sixteen weeks. He was given advice how to do a resume and apply for jobs. He did not apply for jobs because of his foot pain. IPAR knew this was the situation and suggested he do a Certificate III. IPAR did not find any jobs or organise any job interviews.[11]
[11]T44
35 Mr Edwards reviewed the plaintiff several times, last seeing him in August 2012 because of ongoing foot problems.
36 Mr Edwards advised then there was further major surgery that could be undertaken; however, he did not believe it would benefit the plaintiff and would cause his foot to be a lot less mobile. He advised the plaintiff to continue with physiotherapy, myotherapy, painkillers, anti inflammatories and wear supportive footwear with insoles.
37 Following the surgery, the plaintiff was referred for physiotherapy and regularly attended Mr Droshler. An orthotist provided orthotics and the plaintiff also attended a pain management specialist, Dr Courtney, in early 2012 but nothing came from that referral.
38 The plaintiff continued to see Dr Lee once a month for certificates and medication. As of 2012, the plaintiff was taking Panadeine Forte but tried to avoid doing so, because of side effects. He took it about two or three days a week and, when the pain was worse, he took Endone.
39 As of December 2012, the plaintiff had constant left foot pain, usually worse by the end of the day. His foot felt unstable, numb and it swelled. At times his pain was severe. On a bad day he rated it 8 out of 10 and on a good day, 3 to out of 10.
40 The plaintiff then had trouble walking and had to be careful with his footwear. If he had a reasonable day, then he might be able to walk for about a kilometre before his pain increased. On a bad day, he had trouble walking very far at all and used a walking stick that he had purchased.
41 As of December 2012, the plaintiff could not see himself capable of doing his old job, even in a management role. He had always been very much a merchandiser and a hands-on operator and usually left the administrative side of things to other staff. He always enjoyed being out in the store and having contact with customers with his skill in sales, not administration.
42 The plaintiff would like to have thought there was some work he could do in the future which he believed was likely to be part time. He would need a degree of flexibility to choose his days and hours, depending on his pain levels.
43 At times, even sitting for long, the plaintiff got a throbbing and severe pain in his foot and he needed to change posture.
44 The plaintiff would have a real difficulty getting to work. He had an automatic car but usually confined himself to small trips. If he had to walk to work, he would have real problems. He could not do a job if he had to use ladders or stairs.
45 When he had a bad day with pain, the plaintiff could not be relied on to attend work and he would have trouble with concentration. At times, his foot pain was so bad he developed a migraine type headache.
46 Before the plaintiff was hurt, he used to get up early each morning and go to the nearby beach and go running and swimming, even in winter. Because of his injury, he stopped going to the beach, as walking on soft sand was just too difficult.
47 Previously, the plaintiff enjoyed running, going to the gym and bike riding. He had given up these hobbies because of his foot injury. He had put on weight and lost fitness.
48 The plaintiff had become very upset and frustrated about his injury and the effect it had on him and he seemed to have developed phobias about confined spaces. He had had some counselling.
49 The plaintiff no longer did much at all around the house now. Before, he enjoyed gardening but he was then waiting for the insurer to approve gardening help. The plaintiff tried to do what he could in the garden but that was limited and his wife had to take on more responsibility around the house. The injury had changed his life.
50 In a further affidavit sworn 30 September 2014, the plaintiff confirmed he has continued to suffer ongoing fluctuating left foot pain as well as pain around his ankle.
51 The plaintiff last saw Mr Edwards in April 2014, when he discussed the possibility of some form of injection. He advised the plaintiff he was reluctant to perform any further surgery but did not rule it out in the future.
52 The plaintiff’s ongoing treatment has been with Dr Blombery, a vascular surgeon, who has prescribed 150 milligrams of Lyrica daily, and Endep. The plaintiff continues to take Lyrica, Panadeine Forte, Tramal and Kalma, an antidepressant prescribed by Dr Lee. He does not take all this medication each day but takes a combination of it daily.
53 The plaintiff takes Lyrica daily and then either uses Panadeine Forte or Tramal to manage his pain. He takes antidepressants daily.
54 In addition to prescription medication, the plaintiff also uses regular over-the-counter painkillers such as Panadol or Nurofen.
55 The plaintiff considered himself in good health as at the said date. About twenty years ago, he had hurt his back at work and had ongoing back pain. It had largely settled but from time to time he had some back pain which he could manage without any real treatment and without any interference of his work or hobbies.
56 The plaintiff has ongoing left foot pain which fluctuates. Some days are better than others and some days he has severe pain.
57 The plaintiff has never been free of pain but it varies. The worst part is like a frostbite pain in his foot, tipping into an ice bucket and having it there and getting burning sensations. The colour of his foot changes. The worst pain is 8½ to 9 out of 10 – three times a week. When it feels like that, the plaintiff lies on the floor and elevates his foot onto an ottoman lying there for about 20 to 45 minutes.[12]
[12]T11
58 On a good day, the plaintiff tries to do what he can around the house. At times, he has been able to do things such as go to the beach for a relatively short period and have a swim. That activity was something he enjoyed doing after his back injury as a form of rehabilitation.
59 Before his foot injury, the plaintiff went to the beach regularly, and over the warmer months, he went there nearly every day. As previously deposed, because of his foot injury, he basically stopped going to the beach. He now goes nowhere near as much as was the case before he was hurt. Over a summer, he might only go four or five times. Some days his foot is so painful he just cannot get there.
60 The plaintiff has a crutch that was provided to him by Mr Edwards. He regularly uses it, particularly if he needs to go out somewhere or if he is going to be on his feet for a period of time.
61 The plaintiff uses a forearm stick, not all the time. If he is walking a long distance, maybe on his own alone, uses the crutch. He wears a Velcro support on his ankle most of the time.[13]
[13]T12
62 The plaintiff confirmed his pain varies and also as does his ability to walk.[14]
[14]T11
63 The plaintiff was asked to walk across the front of the Court room. He agreed he was walking with a bit of a limp and that is how he walks most of the time. Some days are better but some days are worse and he needs a crutch.[15]
[15]T24
64 The plaintiff confirmed his affidavit evidence about the use of a crutch and that he regularly uses it, particularly if he is going to be on his feet for some period of time. It depends on the pain level or how he feel; if he is going for a long walk he might use it but most of the time he does not use the crutch. The plaintiff agreed what he said in his affidavit was wrong, where he said he regularly used it. That is not the real case. He might use it within the next two or days but then not use it for another four days.[16]
[16]T27
65 The plaintiff agreed on a number of medical examinations he had attended recently he was walking with a limp and using a crutch. The day he saw Dr Yong he was feeling really bad.[17]
[17]T29
66 The plaintiff “never sees himself walking without a limp hardly”. He wears orthotics most of the time.[18]
[18]T29
67 The plaintiff agreed he would have told Mr Jones that he had severe pain in his left foot after getting up from sitting down.[19] It takes him a couple of minutes to get out of the car and try and walk. His pain is unpredictable.
[19]T30
68 In 2013, the plaintiff completed a six month course - Certificate III in Community Services at Chisholm, two and a half days a week. Able bodied students attended more frequently. The teachers understood the plaintiff’s problem and if he missed classes, they gave him Powerpoints to work through at his own pace at home. If he was at college and he had increased pain, he would just quietly leave the room and sit on a couch outside and put his foot up and have a rest and ask for permission to leave for that day.[20]
[20]T12
69 The plaintiff has now enrolled in a Diploma of Community Development and Service at Chisholm TAFE in Frankston which requires three days of class attendance per week. He has missed some days here and there because he has had too much foot pain and been unable to get to class. Sometimes when going to classes, he has to take his crutch with him and other days do not need it.
70 The plaintiff started the Diploma to give something back to the community, to achieve something he could do.[21] The two-year course is to be completed in July 2015. He is required to attend three days a week but he has probably missed about 40 per cent of the classes this year because of a lot of pain in his foot. Teachers give him a worksheet to do things at home. Probably the most he has attended school is 15 hours a week, whereas able-bodied students would be there about 24 hours a week.
[21]T13
71 The plaintiff’s problem is that the more time he spends on his foot, the more pain he has. The pain fluctuates and is unpredictable and some days, he would doubt whether he would even be able to get to work. When he is in pain he has trouble concentrating.
72 The plaintiff is never aware of the symptoms and all of a sudden the pain will just arise and hit him. From time to time, his foot goes purple.[22]
[22]T16
73 The plaintiff would like to be at work but at present, he does not see himself as fit for work.
74 The plaintiff’s current studies require practical placement and he has had special consideration from Chisholm to accommodate the fact he cannot go out into the field to complete the placement.
75 The plaintiff obtained a placement in March this year at a community house in Frankston where he has attended about ten times. He copes with it okay, probably an hour and a half in the morning and the same time in the afternoon. A number of programs are run at the house for people with anxiety issues or depression. The plaintiff sits there most of the time during the program to see what is going on. He could not do this as a full time paid job. It would be impossible because of his foot pain.
76 The plaintiff would be signing off on 200 hours at the placement but he had only had done about 90 hours.[23]
[23]T41
77 While he could possibly do a couple of hours of administrative work each day, the plaintiff still has the problem that he would need to be able to get to work. He doubts he could be relied on to regularly turn up and on a bad day when he is in pain and taking strong painkillers, he could not be relied on.
78 The plaintiff knew what visual merchandising manager was because he had done it before. That job involved lifting up furniture weighing up to more than 100 kilograms, couches, dining settings and making sure everything was where he wanted it in the furniture store. [24] As a retail manager or any manager, he would have to be on the floor checking stock, going around, doing a lot of things. The job involved as lot more than delegating and he did not think he could handle it.[25]
[24]T39
[25]T40
79 The plaintiff is working towards doing paid general counselling work for about 16 to 20 hours a week. He would be happy if he could work 20 hours.[26] There would be a number of roles involved but the plaintiff’s problem was getting to work. It took him a long time to get ready for work. He just did not think he could commit himself. He saw that as just impossible.[27]
[26]T40
[27]T41
80 The plaintiff’s Lyrica has recently been increased to 180 milligrams. He takes Endep and Kalma and Panadeine Forte about four times a week, one or two at a time.[28] Otherwise he takes over the counter Panadol, Naprosyn and other painkillers.
[28]T16
Video surveillance
81 There was 9 minutes of film of the plaintiff attending Frankston beach in January 2013. He could see a little limp although counsel for the defendant “had not realised it”.[29]
[29]T32
82 There were two very short films of the plaintiff walking around the Harvey Norman store on 12 June 2014. He could see a little limp but said the barrister might not be able to see it.[30]
[30]T34
83 About twenty minutes of film was taken on 1 September this year of the plaintiff’s activities between 11.00am and 3.00pm. During that time, the plaintiff was shown at a number of locations including Edithvale, Heatherton, Moorabbin, Cheltenham, Chelsea Heights and Patterson Lakes, driving in his car and walking around various shops.
84 The plaintiff agreed that he would have been out of the house from 11.04am to 3.50pm that afternoon.[31] He went to the chiropractor for a check up. He was shopping at various times. He agreed he was not using a crutch. He disagreed he was not shown with any limp[32] save for when he walked into the chiropractor.
[31]T35
[32]T36
85 The plaintiff denied he put all his weight on his left foot when he bent down to get something from under his car.[33]
[33]T37
86 The plaintiff’s position is unpredictable. There was a lot of time in the film on that date where he was not shown. There was a lot of rest that was not shown.[34]
[34]T38
87 On re-examination, the plaintiff explained he was going to the chiropractor because of his back. He was told to be gentle the way he walked because if he limped, it made things worse for his back. The plaintiff confirmed he was limping in videos.[35]
[35]T43
Wage rates
Flexi Personnel provided the following details of hourly rates in several different roles:
§ Light process worker $17.35
§ Light clerical/office support worker $17.93
§ Case worker/community support worker and counsellor $20.60.
The Plaintiff’s treaters
88 Dr Lee referred the plaintiff to Mr Edwards in July 2012. Dr Lee then noted it had been a long and bumpy road to recovery since surgery with restriction in pain of the left foot despite inflammatories, Lyrica, painkillers and foot massage.
89 Dr Lee noted the pressure was mounting from the plaintiff’s employer and their last correspondence sounded like an ultimatum for his return to full time pre injury duty with a deadline which Dr Lee noted had no doubt generated an enormous anxiety and pressure on the plaintiff.
90 In September 2014, Dr Lee reported that despite intensive para medical management, including physiotherapy, chiropractic treatment, myotherapy, acupuncture, occupational therapy and numerous reviews by the treating orthopaedic surgeon, pain specialist and psychologist, the plaintiff had made very little progress and was in a state of medical inertia.
91 Dr Lee thought the plaintiff’s age and lack of academic skill would work against him for rehabilitation. He had known the plaintiff for a long time professionally. He thought the plaintiff was an honest, hardworking family man with great work ethic and social skills in predicament. Dr Lee thought the plaintiff was a man who wanted to work but could not do so due to his mechanical impairment and constant pain. The plaintiff was in limbo and awaits judgment.
92 The plaintiff was initially referred to Mr Edwards in April 2007. After a number of appointments Mr Edwards carried out the surgery in July 2011.
93 On operation, the ligaments were grossly abnormal and there was an avulsion fracture medially. The second TMT joint similarly had dramatic scar tissue.
94 Mr Edwards has continued to review the plaintiff, most recently seeing him in April 2014 and he has organised a number of investigations. He felt the plaintiff had diffuse pain in association with some ankle degeneration, perhaps subtalar degeneration and metalware in the mid foot in the setting of some neurogenic symptoms.
95 As at the last examination, Mr Edwards suggested injection of the ankle with local anaesthetic and steroids. He gave consideration to ankle arthroscopies somewhat reluctantly and was dubious that orthopaedic intervention would be of benefit.
96 Mr Edwards stated the problems had persisted since surgery and therefore there was a temporal relationship between the injury and symptoms.
97 Mr Edwards’ diagnosis was post traumatic injury arthritis in association with instability of the TMT joint of the left midfoot requiring arthrodesis surgery in July 2011. He noted the plaintiff subsequently had developed significant ongoing pain, some of which was neurogenic. He had degenerative change of his ankle and perhaps of his subtalar joint.
98 Mr Edwards noted the plaintiff had difficulty walking for more than five minutes. He was therefore only suitable for sedentary duties. He did not believe the plaintiff was fit for his pre injury duties which required significant activity and felt the plaintiff was suitable for essentially sedentary work, at least from an orthopaedic point of view.
99 Mr Edwards believed the plaintiff would benefit from pain management and suspected his condition would stay very much as it currently is.
100 Dr Courtney, pain medicine specialist, saw the plaintiff on referral from Mr Edwards in July 2012.
101 Dr Courtney noted the plaintiff had adopted a difficult walking pattern which was now causing secondary pain in his back and probably hip.
102 Dr Courtney thought the plaintiff had an antalgic gait and was developing pronation of his left foot. He believed the plaintiff had CRPS and probably had a degree of it prior to the surgery.
103 Dr Courtney thought the first step would be to perform a lumbar sympathetic block but noted unfortunately the plaintiff was very reluctant to take medication and tried to minimise the amount he took.
104 Dr Courtney was not sure that trying to get the plaintiff to take an appropriate dose of medication would be successful but it was something he would work on.
105 Dr Lee is presently certifying the plaintiff as unfit for any duties with the injury described as painful restricted left ankle foot. He thought the medical condition remained guarded and suggested the plaintiff continue paramedical and pain management.
Medico-legal evidence
106 Mr Charles Flanc, vascular and general surgeon, first saw the plaintiff on 9 January 2012.
107 At that time, the plaintiff still suffered severe pain over the top of his left foot and outer part of the mid foot and some pain in the plantar aspect as well as the ankle.
108 The plaintiff told Mr Flanc that he had discussions with his employers about the possibility of restricting his duties to office work, possibly on a part time basis, but he explained that he was told he could not return to office work alone.
109 On examination, the plaintiff walked with a slight limp affecting the left leg and he wore a specially constructed insole in each shoe. There was no visible wasting of the leg. There was slight purplish colour on standing of the left foot and the foot arch was very flat in contrast to the right.
110 Mr Flanc thought the injury consisted of a combination of severe soft tissue injuries affecting the ligaments and capsules of the mid tarsal joint, causing an instability of the mid foot with flattening of the longitudinal arch and gradual aversion of the foot.
111 Scans and operation notes indicated the plaintiff had at least one avulsion fracture within the tarsometatarsal joints but his investigations indicated he had some arthritis involving the mid tarsal joints as well as the ankle joint, even before the injury and it was likely that the severe trauma to the foot aggravated this pre existing condition making it symptomatic and possibly accelerating the degenerative process.
112 Mr Flanc thought the plaintiff’s condition had not stabilised. He considered the plaintiff would not be fit to perform any work involving prolonged standing, walking or heavy lifting. On the other hand, he thought the plaintiff should be able to cope with office duties, at least on a part time basis and he may eventually have to consider a career change into an office type occupation because of his restrictions.
113 On re-examination on 5 March 2014, the plaintiff complained of pain particularly situated over the dorsum and lateral aspects of the left foot but also the front of the ankle and sole of the foot.
114 Usually for longer walks, the plaintiff used a walking stick for support and occasionally crutches. Occasionally he did not use any support if he intended to walk for a very short distance. He had to stop frequently even on flat surfaces because of pain.
115 On examination, the plaintiff walked with a marked limp affecting his left leg and he used a walking stick in his right hand. He stated he always had some degree of limp, occasionally severe and occasionally slight. He wore an ankle support which he removed when he went to bed or had a shower.
116 Mr Flanc then thought the plaintiff would not be able to return to any work which involved walking long distances, prolonged standing, climbing or heavy lifting. On the other hand, he should be able to cope with sedentary duties, office duties at least, initially part time.
117 The plaintiff indicated he was moderately computer literate, but hopeless in office procedures. Mr Flanc noted nevertheless, the plaintiff had had considerable administrative experience and had a responsible position with previous employers, therefore it was theoretically possible to retrain him into another office type occupation.
118 Having seen the footage of the plaintiff at the beach, Mr Flanc noted he was walking without a limp and swimming but he did not think anyone could make any conclusions on that information alone. He thought it quite likely that walking on the beach for short distances while wearing sandals would cause very little discomfort.
119 The plaintiff was re-examined on 15 August 2014.
120 The plaintiff told Mr Flanc he used an elbow height crutch, because he found that much more stable, and a walking stick. He used it when he did a lot of walking, such as when he went shopping. He used it intermittently at home. Whether or not he had to use it depended on the distance and the pain.
121 On examination, the plaintiff walked with a marked limp affecting his left leg and he held an elbow height crutch in his right hand.
122 Mr Flanc noted the plaintiff’s fractures to the bones of the mid foot resulted in the development of arthritis and these were subsequently treated with fusion which had been shown on recent CT scans to be sound. Despite that, the plaintiff continued to suffer pain in the region of the surgery which was significantly influenced by the development of a Complex Regional Pain Syndrome type 1 (“CRPS”).
123 The pain in the left ankle and sub talar joint was partly related to degenerative changes in the left ankle and also influenced by a CRPS Type 1.
124 Mr Flanc noted the plaintiff had developed a chronic pain syndrome in which there was a sensitisation of pain pathways resulting in pain which was greater in severity than expected from the physical injury alone. However, Mr Flanc noted that the plaintiff’s condition had progressed to a variant known as CRPS type 1.
125 In that condition, Mr Flanc noted there was, in addition, an instability of the autonomic nervous system, resulting in physical changes detected on examination; namely, consistent with CRPS Type 1; wasting of the left thigh and lower leg consistent with disuse, a deepening red colour in the left foot which was greater than on the right when the plaintiff stood up, a definite decrease in temperature in the left foot compared to the right and a diffuse hypersensitivity of the left foot to palpation.
126 Mr Flanc noted the pain in the lumbar spine had become more frequent and more severe since the foot injury. He thought it was also likely the plaintiff had developed some psychiatric disturbance.
127 Considering the plaintiff’s physical condition alone, Mr Flanc thought he should theoretically be able to cope with at least part time sedentary work, providing he could get to work without any great difficulty. He noted the plaintiff had administrative and retail experience and he was computer literate, so that was an option.
128 Mr Flanc thought the plaintiff would certainly not be able to cope with any work involving prolonged weight bearing. He also thought the presence of a CRPS type 1 had increased the severity of the symptoms to the extent the plaintiff may have poor tolerance for even sedentary work and it may more appropriate to wait until he progressed further down the pain management pathway.
129 Mr Flanc thought the prognosis for significant improvement must be guarded. He considered it likely the plaintiff would not be able to return to employment involving walking or standing but he should be able to return to at least part time sedentary work.
130 Dr Blombery first saw the plaintiff on 5 July 2013, at which time he complained of pain in the left foot rating it at six to seven out of ten.
131 The plaintiff told Dr Blombery he was a little stiff in the foot and when he began to walk, he limped but that tended to improve after he walked for some distance.
132 On examination, the plaintiff used a walking stick and had a slight limp.
133 Dr Blombery diagnosed CRPS Type 1, complicating a Lisfranc injury to the foot and surgery in relation thereto.
134 Dr Blombery thought the plaintiff had no fitness for his pre injury job which involved him doing a lot of standing. He considered the plaintiff would be able to do a job part time where he was seated and there was no lifting involved but he would initially only be able to do that a few hours a week. Depending on how he progressed, the hours could then be increased.
135 Dr Blombery thought the prognosis for recovery at that stage was relatively poor.
136 On re-examination in July 2014, the plaintiff described left foot pain which was worse than it had been previously.
137 Dr Blombery again thought the plaintiff had no fitness for pre injury work where he would have been weight bearing for significant periods of time. He thought the plaintiff would be able to do a sedentary job, initially on reduced hours per week and then gradually increasing, but he should not do any job which involved significant weight bearing. He considered the prognosis for recovery was poor and the plaintiff was going to require ongoing treatment for chronic pain.
138 Dr Blombery was shown the beach film in which he noted the plaintiff walked up and down the sand and in the water with no apparent limp. Dr Blombery would have expected slightly more limitations, although the footage that he observed was not incompatible with the way the plaintiff presented to him.
139 In relation to the plaintiff’s capacity for work, Dr Blombery noted he was taking increasing dosages of painkilling medication as well as Lyrica and would be able to do a part time job initially on markedly reduced hours but would certainly never be able to achieve his pre injury 38 hours a week.
140 In Dr Blombery’s opinion, 22 hours a week would be about as much as the plaintiff could be expected to work in sedentary duties. He concluded it was possible a return to work on alternative duties could lead to an aggravation of the plaintiff’s symptoms, particularly if there were excessive amounts of standing or weight bearing involved, even within the constraints of such a return to work plan.
141 Dr Slesenger, specialist occupational therapist, examined the plaintiff on 3 July 2014. The plaintiff then advised his pain continued at a level of six out of ten located mainly at the lower leg on the lateral aspect of the ankle.
142 On examination, the plaintiff walked with a stick in his right hand and examination of his gait revealed a pronounced limp. Both shoes had custom made orthotics.
143 Dr Slesenger noted the surveillance footage appeared to have been edited. He was advised the plaintiff was shown in the film and appeared to be walking without a limp. The footage was about 18 months prior to the assessment, therefore Dr Slesenger was not able to comment on the consistency between the surveillance and what he observed on evaluation.
144 Dr Slesenger thought the plaintiff would not be able to return to his pre injury duties as those included standing and climbing as well as manual handling. He considered the plaintiff had capacity for alternate sedentary duties and could return to work with the following restrictions – no lifting over 3 kilograms; sedentary duties only; mobilising as required; limited walking; and working four hours a day, five days a week.
145 Dr Slesenger thought the plaintiff would require ongoing review by his general practitioner, counselling, a self managed exercise program and continuing to see a pain management clinic to assist him with his CRPS.
146 Dr Slesenger thought the prognosis must be guarded as the plaintiff had been job detached for nearly three years and had significant functional impairment, noting the plaintiff’s expertise and experience were predominantly within retail.
147 Dr Slesenger thought the plaintiff would require some degree of retraining to enter the job market and would require support to upgrade his computer skills. Given the plaintiff’s limited capacity and inability to perform manual handling tasks, he was concerned the plaintiff was going to find difficulties achieving a role within retail. He would not be able to serve customers as he could not demonstrate goods and Dr Slesenger also had concerns with regard to cognitive effects of the plaintiff’s medication.
148 Dr Slesenger provided a supplementary report commenting of the plaintiff’s capacity for a number of jobs.
149 Dr Slesenger noted the plaintiff had experience in tool setting and machining as well as experience in retail customer service. He also had qualifications as a tool setter and had recently done the Certificate III in Community Service and had shown an interest in further qualifying in that field.
150 Dr Slesenger was satisfied the plaintiff’s experience and expertise could be built upon with relevant training and qualification to be able to work as a case worker or a community support worker as well as a counsellor or youth worker.
151 Dr Slesenger confirmed the plaintiff had a capacity for sedentary duties, four hours a day, five days a week, taking into account his variable left foot pain, which was unpredictable and at the level of 6 out of 10. Taking regular medication including Panadeine Forte and Lyrica which were likely to cause fatigue and potential cognitive impairment, psychological symptoms associated with concentration difficulties and memory loss and a recent onset of low back pain had further diminished his function.
152 Dr Slesenger imposed limited hours given the potential for fatigue due to a combination of physical symptoms, psychological symptoms and use of medication.
153 On balance, Dr Slesenger thought the plaintiff’s physical injuries and treatment of them would be the major contributing factor to his incapacity for work, whilst the psychological component would be the minor contributing factor.
154 Dr Clark saw the plaintiff on behalf of QBE in May 2013 in relation to ongoing medical services and weekly payments.
155 Dr Clark diagnosed severe left foot dysfunction following a work related left foot injury treated surgically. He thought the plaintiff had symptoms and clinical signs of a CRPS.
156 Dr Clark then thought the plaintiff was not fit for pre injury duties and had a restricted capacity for suitable alternative duties.
157 In Dr Clark’s view the employment options identified in the NES vocational assessment of August 2012 were potentially suitable but the plaintiff needed a largely sedentary role. He noted the plaintiff seemed highly motivated to find suitable future employment.
Video surveillance
158 On 24, 25, 28 and 29 January 2013, there was 9 minutes of footage from 17 hours of surveillance. On 7, 12 and 13 June 2014, there was five minutes and nine seconds of footage from 15 hours of surveillance. On 1 and 3 September 2014, there was 22.5 minutes of footage from 15 hours of surveillance.
159 In total, there was surveillance for 47 hours over nine days, of which there was 36.5 minutes of footage.
The Defendant’s medico‑legal evidence
160 The plaintiff was initially seen by Mr Jones, orthopaedic surgeon, in April 2013. Mr Jones then noted the plaintiff walked with a slight left sided limp.
161 Mr Jones thought the plaintiff presented with complaints of the effects of a Lisfranc fracture subluxation of the first and second metatarsals of the left forefoot for which delayed surgical treatment was involved. Additionally, he had symptoms and signs of early osteoarthritis affecting his left ankle. There were some additional symptoms to suggest he was suffering from the resolving condition of RSD.
162 Mr Jones noted the plaintiff did not describe any functional symptoms in regard to his left foot and he was not able to comment on any psychological condition or reaction suffered by the plaintiff.
163 Mr Jones then thought the plaintiff was restricted in terms of his ability to stand, walk and climb stairs and ladders. He considered most appropriate employment would be that of a sedentary nature where there was limited requirement to stand and walk on flat and predictable surfaces.
164 Mr Jones thought the plaintiff would be capable of undertaking full time clerical employment or work where there was no requirement to walk for long distances especially on rough or uneven ground. Work requiring the plaintiff to squat and kneel would also place high demands on his foot. With suitable employment, Mr Jones thought the plaintiff could return to full time work.
165 Mr Jones re-examined the plaintiff on 26 August 2014.
166 Specific questioning of the plaintiff confirmed he could walk with the assistance of a forearm crutch for five minutes covering a distance of between 10 and 20 metres. He could manage a few steps without a crutch. He could stand for between five and 10 minutes but put most of his weight through his normal right leg.
167 On examination, the plaintiff presented walking with the assistance of a single forearm crutch in his right hand.
168 Mr Jones confirmed the plaintiff had capacity only for sedentary employment as a consequence of his physical injuries. His left ankle and foot complaint restricted his ability to stand and walk, requiring the assistance of a lace and Velcro ankle brace and forearm crutch in his right arm.
169 Mr Jones believed the plaintiff had the physical capacity to undertake the jobs described in the vocational assessment. He thought the plaintiff had the physical capacity to undertake the position of a case worker–community support worker, provided that was solely a sedentary role. He would also be able to act as a counsellor but not a visual merchandising manager, retail manager or customer service manager. He thought the plaintiff would have the capacity to be employed as a youth worker provided the duties were sedentary.
170 Following his report of May 2013, Dr Clark read the August 2013 plan and identified suitable options of case worker, community support worker, counsellor, visual merchandising manager, retail manager and youth worker.
171 In Dr Clark’s experience, visual merchandising manager roles usually involve walking and manual handling activities within and between stores and may not be suitable for the plaintiff but the other roles were potentially within his physical capacity. Dr Clark still believed the plaintiff would require a largely sedentary job if sustainable return to work was to be achieved.
172 Dr Dominic Yong, specialist occupational physician, first saw the plaintiff in June 2013.
173 The plaintiff then described pain in the left foot which he noticed laterally around the ankle. There was also numbness around the foot on the dorsum and it was a cold feeling.
174 The plaintiff advised that he varied his posture regularly between sitting and standing, he could walk for a short distance with a maximum of 30 minutes whilst in pain and could drive over an hour in an automatic vehicle.
175 On examination, the plaintiff walked with a walking stick into the consulting room. He walked with an obvious limp favouring his left foot.
176 Dr Yong noted the plaintiff’s twisting injury to his left foot was likely to have aggravated a degenerative condition and that had been treated surgically. It had been complicated by a CRPS and he noted there were findings from the bone scan suggesting that that was starting to improve.
177 Dr Yong did not note any functional component and thought there did not appear to be any overt psychological symptoms.
178 Dr Yong considered the plaintiff had a current capacity for work within the following restrictions: namely, avoiding prolonged standing and walking tasks; firm pushing or pulling; lifting more than 5 kilograms on a repeated basis; with an initial reduction in working hours to four hour shifts, four days a week.
179 Dr Yong thought the plaintiff would have the capacity to participate in a graduated return to work program, the aim of which would be to return him back to his pre injury hours doing a range of duties within the restrictions. Given the plaintiff’s current condition and functional capacity, he thought it was likely to take three to five months. As the plaintiff obtained further improvement, the restrictions were likely to relax further.
180 Dr Yong believed that the tasks described in the IPAR report of August 2012 of: customer service manager; visual merchandising manager; retail manager; counsellor and youth worker were within his restrictions and reasonable. He thought another role which could also be considered would an office based sales or purchasing role.
181 On re-examination, in August 2014 the plaintiff reported discomfort and pain in his left foot laterally, radiating to the top of his foot and into the second and fourth toe; he had a numb feeling and it felt cold.
182 The plaintiff used crutches a few times a week when he felt he could no longer walk distances.
183 On examination, the plaintiff walked into the consulting room using a below elbow crutch held with his right hand. He had an obvious limp favouring his left leg. He said it was a bad day.
184 Dr Yong noted the plaintiff’s condition had been complicated by a CRPS and deconditioning and also by a psychological comorbidity requiring multiple modalities of treatment. Dr Yong did not note a functional component. However, there were features of some pain avoidance behaviour which could be related to the deconditioning process. He noted the plaintiff was taking medication and seeing a counsellor for psychological comorbidity which in his view could impact on the recovery of the plaintiff’s physical condition.
185 Dr Yong thought if the plaintiff did not have a psychological condition it was likely he would be able to progress further to rehabilitate his physical condition and that would lead to improvement in social and occupational functioning.
186 Dr Yong’s view was unchanged as to the plaintiff’s work capacity and capacity for the specific jobs suggested. He noted, an additional task of case worker/community support worker identified was likely to comply with the restrictions and would be considered reasonable.
Vocational evidence
187 IPAR conducted an NES vocational assessment report in August 2012 where the following roles were identified as suitable employment options in order or priority: customer service manager; visual merchandising manager; retail manager; counsellor and youth worker.
188 These suitability of these jobs was confirmed in a later report of 31 July 2013.
Wage rates
189 The Health Professionals and Support Services Award 2010 set out minimum weekly wages for health professional employees (counsellor/social worker) on four levels and on a number of different pay points.
Overview
Credit
190 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[36]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[36](2010) 31 VR 1 at paragraph [12]
191 The major part of the defendant’s case was that the surveillance film showed that the plaintiff was not as disabled as he suggested and that he had a capacity for a range of work. It was submitted the film showed the plaintiff was able to walk further than he told doctors without the assistance of a stick or crutch.[37]
[37]T52
192 Whilst the plaintiff was not shown using any walking aid on the film, his evidence was not that he used a crutch or a stick all the time, only when he was to be on his feet for longer periods. Further, he did not say that he walked with a limp at all times and he described his limping as variable.
193 I accept that on a number of occasions during the films, the plaintiff walked with a limp. Approaching the beach walking from his car on the first film, walking into Harvey Norman and walking around the store on the second date and at various times during the final film of 1 September 2014, in particular going into the chiropractor and at times walking on the footpath when shopping.
194 The films were a “very limited window” of the plaintiff’s activities, with 47 hours’ surveillance undertaken and only 36 minutes of film.[38]
[38]T62
195 I do not accept the plaintiff’s level of activity in the recent film suggests that he could work in excess of 20 hours a day. The film on that date, whilst covering a four hour period, was not continuous and was of only 22 minutes’ duration, and at times showed the plaintiff limping.
196 Further, having seen the first film of the plaintiff at the beach, Dr Blombery and Mr Flanc saw no reason to change their view as to the plaintiff’s condition and restrictions.
197 I accept the plaintiff gave evidence in an unequivocal and straight forward manner, consistent with a man motivated to try and return to work.[39] Further, no doctors suggested any embellishment or feigning on examination.
[39]T60
Loss of earning capacity
198 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
199 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
200 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
201 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
202 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
203 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
204 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect. See Barwon Spinners Pty Ltd & Ors v Podolak.[40]
[40](Supra) at paragraph [70]
205 The plaintiff’s earnings for the three financial years from 2009 were $64,807; 2010 – $62,356; and 2011 – $61,791.
206 There was no real dispute between the parties as to the appropriate without injury earnings figure.
207 Counsel for the plaintiff submitted the appropriate figure was based on the plaintiff’s 2010 earnings. Allowing 10 per cent increases for the following three years, the gross annual “without injury” earnings figure is $68,591. On a weekly basis, the figure is $1,319, of which 60 per cent is $791.[41] Counsel for the defendant suggested a slightly smaller figure of $68,100; sixty per cent of which on a weekly basis is $784.[42]
[41]T64
[42]T51
208 On these figures, to establish a loss of 40 per cent, I must be satisfied the plaintiff does not have the capacity to earn in excess of $790 per week.
209 In my view, the plaintiff has a capacity for suitable employment, with his general practitioner alone in the view that he is totally incapacitated.
210 I accept the plaintiff would not be able to return to pre-injury duties on the store floor as a manager or in visual merchandising because of the hands on work and standing and moving about required. He attempted a return to his former job but was advised it was not available in terms of office work only as he requested. Whilst there might be many facets of retail,[43] I accept that the plaintiff lacks the mobility and reliability required to work in that field on a sustained basis.[44]
[43]T58
[44]T58
211 His former career having been ruled out, the plaintiff, on IPAR’s advice, took a different career route studying youth work/social work and is presently engaged in further study in this field with a view to paid work.
212 Whilst the plaintiff is relatively well educated with a solid work history, currently undertaking further study,[45] I do not consider he has the capacity to work more than about 20 hours per week in sedentary work whether in an office or in his new career as a social worker and I accept his evidence to this effect.
[45]T53
213 Although he obtained his Certificate, the plaintiff was unable to regularly attend lectures, at times having to lie down between classes and he often had to take work home. This situation has continued during the Diploma course and the placement, with the plaintiff having only been able to do 90 of the 200 hours required.
214 Clearly, the main problem with the plaintiff’s foot injury is his inability to be on his feet for prolonged periods and his difficulties walking over rough and uneven terrain. As the plaintiff explained, he has the added problem of getting himself ready for work and actually getting to work because of his foot pain. In particular, the unpredictable nature of his pain would cause him to be unreliable in his attendance and performance at work.
215 I accept the plaintiff is a well-motivated man and it was not put that he was somehow lacking motivation or consciously attempting to minimise his re-entry into the workforce.[46]
[46]T61
216 An additional factor affecting the plaintiff’s future employability is his present significant medication regime. One of the factors Dr Slesenger took into account when restricting the plaintiff’s hours to 20 per week was that taking regular medication including Panadeine Forte and Lyrica was likely to cause fatigue and potential cognitive impairment.
217 Further, there is objective evidence confirming the plaintiff’s complaints of pain and restriction with CRPS type symptoms found by most examiners and muscle wasting found by Dr Blombery and Dr Slesenger, the only practitioners who measured muscle bulk.[47] Dr Clark who examined the plaintiff on the defendant’s behalf, described the plaintiff as suffering from a severe left foot injury.
[47]T63
218 Medical opinion varies somewhat as to the suitability of the jobs suggested by IPAR but the consensus of that opinion is that there is no capacity for pre injury work[48] and there is a limited capacity for suitable sedentary work.
[48]T64
219 Although the plaintiff told Mr Edwards he had a five minute walking capacity,[49] all other practitioners who have found the plaintiff is fit only for sedentary work reached this conclusion having been told by the plaintiff of a greater walking capacity.
[49]T54
220 Dr Blombery considered the plaintiff could work 22 hours with Dr Slesenger suggesting 20 hours would be suitable for him. Other practitioners did not impose any time restrictions on the hours the plaintiff could do sedentary work.
221 Mr Flanc thought the plaintiff should theoretically be able to cope with at least part time sedentary work, providing he could get to work without any great difficulty.
222 Mr Jones limited his support to roles that were solely sedentary, excluding visual merchandising manager, retail service manager or customer service manager. Dr Clark agreed visual merchandising manager was unsuitable due to the amount of walking that was involved
223 Dr Yong stands alone in his view that the plaintiff can work up to full hours gradually with restrictions and later relaxation of those restrictions. He is the only practitioner who considers all the suggested jobs are suitable, as well as office based sales or a purchasing role.
224 Working 20 hours per week in any of the jobs suggested by the defendant, the plaintiff would suffer the requisite loss of 40 per cent.
225 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
226 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, he has satisfied the requirements of s134AB(38)(g).
227 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
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