Cini, Joseph v IPA Personnel Pty Ltd
[2012] VCC 1479
•15 October 2012
| 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-11-03541
| JOSEPH CINI | Plaintiff |
| v | |
| IPA PERSONNEL PTY LTD | First Defendant |
| and | |
| AQIS, DEPARTMENT OF AGRICULTURE, FISHERIES AND FORESTRY | Second Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 and 3 October 2012 | |
DATE OF JUDGMENT: | 15 October 2012 | |
CASE MAY BE CITED AS: | Cini, Joseph v IPA Personnel Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1479 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION – Serious Injury Application.
CATCHWORDS – injury to lumbar spine – whether consequences achieve the “very considerable” level – pain and suffering and economic loss – whether plaintiff attempted rehabilitation and retraining – pre-existing restriction in recreational activities
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
JUDGMENT – Leave to the plaintiff in relation to pain and suffering; leave refused in relation to economic loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr P Montgomery | Verduci Lawyers |
| For the Defendants | Mr S Jurica | Lander & Rogers |
HIS HONOUR:
Preliminary
1 The plaintiff suffered injury to his lower spine in the course of his employment with the first defendant on 15 October 2008. As a result, he claims a range of domestic, recreational, sporting and employment activities have been impaired or restricted. He has not worked since January 2009.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the first defendant on 15 October 2008. The body function said to be lost or impaired is the lumbar spine.
3 The application is thus brought under subsection (a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
4 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, affidavits of the plaintiff, vocational reports, radiological reports, medical reports and material concerned with a pre-existing right shoulder injury were tendered into evidence. I have read all the tendered material.
5 I shall not refer to all of this material in the course of this judgment, but rather to those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather those parts of his evidence which I have relied upon in coming to the conclusions referred to later in this judgment.
6 The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant Background
7 The plaintiff was born in 1970 and is almost forty-two years of age. He left school at fifteen, having completed Year 10.
8 After leaving school, he was involved in a range of labouring jobs, and work in factories. All of his work has been blue collar manual work. For a period in 1994 he commenced his own concreting business. He commenced worked for Cadbury Schweppes. He said in his affidavit:
“Between 2005/6 I worked at Cadbury Schweppes where I had an injury to my right shoulder and was off work for about 2 years with this injury and I returned to work on light duties for about 3 months and then [w]as put off work because there was no position for me.”[1]
[1]Plaintiff’s Court Book “PCB” 21
9 This history is not accurate. In fact he commenced work for Cadbury Schweppes in 2003. In October of that year, he felt the onset of discomfort in his right shoulder. He sought treatment from his general practitioner and made a claim for compensation. He was off work and in receipt of payments of weekly compensation until June 2008.
10 He was seen on a number of occasions for the shoulder injury by Mr Timothy Gale, surgeon,[2] who determined the plaintiff had suffered a minor soft-tissue injury to his right shoulder girdle and that there was a significant non-organic component to his injury. Significantly, he told Mr Gale in October 2005:[3]
“Mr Cini is aged 34 years and is divorced, he has not worked since leaving the employment of Cadbury Schweppes in the middle of 2004. He is normally right-handed, and his recreational pursuits previously had involved motor cycle riding which he has ceased and has sold his bike, he no longer goes go-karting, and is somewhat restricted in fishing activities.”
[2]Defendants’ Court Book (“DCB”) 276-284
[3]DCB 276
11 Further, in the course of a vocational assessment in 2006 again related to the shoulder injury, the plaintiff described that he could not start the lawnmower and that his mother assisted with cooking and cleaning. He said that prior to the shoulder injury, he enjoyed fishing but –
“… cannot manage to ‘throw a line’ now because of his shoulder injury.”[4]
[4]DCB 246-247
12 According to his affidavit sworn 9 September 2011, the plaintiff described the restriction in his recreational activities as a result of his lumbar spine injury as follows:
“I also used to enjoy motor bike riding but haven’t been bike riding since I sustained the subject injuries. I own a go-cart and used to enjoy go go-cart racing but have been unable to pursue that activity. I used to be a keen fisherman particularly from small dinghies in the bay but found that the rocking motion of the boat was too much for my back and have given up that activity as well. … .”[5]
[5]PCB 37
13 Prior to his lumbar injury, the plaintiff said that he enjoyed raising birds and kept several hundred birds in cages.
14 Before October 2008, he was otherwise well and the condition of his right shoulder had significantly improved such as to enable him to commence employment with the first defendant.
15 According to his affidavit, he said he commenced work with the first defendant in March 2008. That would seem inconsistent with the fact that the plaintiff was paid weekly payments of compensation in respect of his shoulder injury until June 2008. Further, according to correspondence sent from the first defendant, the plaintiff commenced work with the first defendant from 1 September 2008.[6] In evidence, the plaintiff said that he commenced duties working on the wharves earlier that year but that the first defendant took over as his employer from 1 September 2008. In any event, I accept he commenced his employment duties with the first defendant as at 1 September 2008.
[6]DCB 227
The Injury and its Consequences
16 The plaintiff’s work with the first and second defendants was on the wharves. There was a dispute as to the hours the plaintiff was working from the time he commenced work on 1 September 2008, until the time of the workplace incident, 15 October 2008. According to the payroll transaction records of the first defendant,[7] the hours varied between 22 and 27.5 hours per week. According to the worker’s claim form,[8] he says he was working 30 hours per week, from 9.00 am to 3.00 pm Monday to Friday. According to the employer’s claim form,[9] the plaintiff was working 22 hours per week. In my view, the payroll records are likely to be correct and although the plaintiff worked varying hours, he had the capacity to work up to 27.5 hours per week. I therefore accept, for the purposes of s134AB(38)(f), that the plaintiff’s capacity for employment at the relevant time was for 27.5 hours per week at $21 per hour, making a gross weekly salary of $577.50 per week.
[7]DCB 227
[8]DCB 5
[9]DCB 7
17 The plaintiff’s work involved cleaning the base of shipping containers at the docks. On 15 October 2008, he was assisting another employee move a plastic rubbish bin filled with waste material when the employee let go of the bin, and the plaintiff took the full weight. He felt a sharp pain in his lower back. He reported the matter to his supervisor. He remained working undertaking the same duties as before, and did not seek medical treatment until January 2009, when he consulted his general practitioner, Dr Mitchell.
18 The defendant did not seek to argue that the gap between the injury and treatment meant that the plaintiff’s back condition was not causatively related to the incident. However, Mr Jurica argued that the fact that the plaintiff did not seek medical attention and maintained the same duties for a period of approximately three months was an indication of the paucity of the symptoms suffered at the time. The plaintiff explained this gap as that initially he thought the injury was a muscle problem, but that it failed to recover and he thus sought treatment.
19 Dr Mitchell referred him for physiotherapy, and provided pain relieving and anti inflammatory medication. The plaintiff ceased work on 19 January 2009, and has not worked since, save for one return to work program in mid-2008 when the plaintiff was allocated light office duties. He only lasted one day as he said that walking up two flights of stairs to the office area aggravated his back. There was no issue with the work itself.
20 The plaintiff was referred for a CT scan to his lumbar spine in July 2009.[10] That scan showed:
“1. Moderate L5/S1 lumbar canal stenosis secondary to a central and left L5/S1 disc prolapse. ? left S1 nerve root impingement. If clinically indicated, this may be confirmed on MRI of the lumbar spine.
2. Mild to moderate L4/5 lumbar canal stenosis secondary to a central L4/5 disc prolapse.
3. Mild to moderate bilateral L5/S1 facet joint osteoarthritis. CT guided facet joint steroid injection, particularly on the left, may be of therapeutic benefit.”
[10]PCB 45
21 The plaintiff was then referred By Dr Mitchell for an MRI scan of his lumbar spine on 19 October 2009.[11] That scan concluded:
[11]PCB 46
“1. A mild to moderate central canal stenosis is seen at L4/5 and at L5/S1 level.
2. Slight posterior impingement of the traversing S1 nerve roots particularly on the left side is noted.
3. Right L4/5 foraminal stenosis is identified with some impingement seen to the exiting L4 nerve root.
4. Incidental finding of a conjoined right L5 and S1 nerve roots.”
Bulges at L4-5 and L5-S1 were also noted.
22 Dr Mitchell retired from practice, and the plaintiff’s treatment was taken over by Dr Brophy. He arranged an MRI scan of the lumbar spine in August 2012 which noted:
“At L4/5 there is a shallow central broad based posterior disc protrusion indenting the thecal sac. There is in addition a right posterolateral component of the disc protrusion which displaces the exiting right L4 nerve root as it exits the foramen.
At L5/S1 there is a central/left paracentral broad based posterior disc protrusion which abuts the thecal sac without obvious nerve root compression. No foraminal narrowing seen. There does appear to be some facet joint degeneration at L5/S1 …
Conclusion:
Disc protrusions are described at L4/5 and L5/S1.”[12]
[12]PCB 47
23 In October 2010, the plaintiff was referred to Mr Justin Hunt, orthopaedic specialist. He noted the plaintiff was suffering pain not only in his lower back, but referred pain to the left buttock and paresthesia in the toes of the left foot. He noted the plaintiff was taking Panadeine Forte and Voltaren. The plaintiff gave a history that standing for long periods and moving around caused considerable exacerbation of his symptoms. Mr Hunt concluded that there was no prospect for surgical management given the focus of the pain was mechanical low back pain, rather than leg pain.
24 Mr Hunt considered the plaintiff’s mechanical back pain was related to the workplace incident with wear and tear changes confirmed on the MRI scan. He did not think there was any overt nerve root compression, but there may be some irritation of the exiting L4 nerve root. He noted that the plaintiff had enjoyed keeping birds, but was not able to do the physical work necessary to maintain them. Further, the plaintiff said that he had enjoyed motorcycle riding and fishing but was not able to do so, as those activities aggravated his symptoms. Mr Hunt, in relation to work capacity, said:
“Mr Cini continues to be disadvantaged as a result of his back and leg pain symptoms as a result of his work injury. He is not able to perform his pre-injury employment, nor is he able to perform any alternative employment at the present time. It is likely that his work will be detrimentally affected in the foreseeable future.”[13]
[13]PCB 65
25 Mr Hunt considered the plaintiff would benefit from rehabilitation program, and referred him to Dr Clayton Thomas.
26 Dr Thomas saw the plaintiff in February 2010. He obtained a history that the low back pain was the dominant problem with some pain in the buttock and left leg. Dr Thomas said the plaintiff was taking six Panadeine Forte per day. There were no significant neurological findings upon examination. Dr Thomas considered the plaintiff presented with “marked vocational complexities”.[14] He noted that the plaintiff had a considerable period off work as a result of his shoulder injury, had limited education, and had worked all his life in the manual area. However, Dr Thomas said that he did have a work capacity within limitations and restrictions. The plaintiff accepted Dr Thomas’s recommendation to attend the Dorset Rehabilitation Centre for a multidisciplinary rehabilitation program. The plaintiff attended that program in April 2010. According to the discharge summary:[15]
“Mr Cini was present for the first day of his spinal rehabilitation program. He withdrew from this program. I contacted him by telephone on 12/5/10 to inform him that prior to consideration of returning to our program he required a review with Dr Thomas our Pain Specialist. Joe cancelled his appointment for review on 21/7/10 without booking a future review. As there has been no further contact between Joe and our program he has been discharged.”
[14]PCB 78
[15]DCB 204
27 In evidence, the plaintiff said that he left the rehabilitation program after one day because he “basically knew what it was all about” and thought it was a waste of time.[16]
[16]T 62, L5
28 The plaintiff’s payments of weekly compensation ceased, and he is presently in receipt of Centrelink benefits. Centrelink has referred him to a number of vocational organisations, including initially Job Australia, and CVGT Australia. He said neither organisation was particularly helpful in finding him employment. Of more recent times, he has been registered with the Disability Employment Group, and has attended on two occasions. He said that organisation was attempting to find him work of fifteen hours per week.
29 I asked the plaintiff whether, within the restrictions set out by Dr Thomas in his report, he would be prepared to undertake work. He said he would “jump on it” and “give it a go”.[17]
[17]T 60, L18-23
30 At the present time, the plaintiff takes six to eight Panadeine Forte tablets a day on the days when he has significant pain, about 3 days per week. He takes less on other days. He continues to see his general practitioner, Dr Brophy, each three months or so for the prescription of medication. Physiotherapy treatment has ceased as he said it aggravated his symptoms. He has suffered anxiety and depression, and has been prescribed Cymbalta. He says his capacity to engage in sexual relations has been impaired and according to his general practitioner he suffers erectile dysfunction.[18]
[18]PCB 59A
31 In terms of his recreational activities, he says he has had to give up his hobby of raising and keeping birds as he is unable to clean and maintain the cages. He also says that he no longer enjoys motorcycle riding, or go-carting. His fishing activities have been limited and whereas previously he was able to go fishing in small dinghies, he is now restricted to occasionally going to the beach and fishing from the shore. He says his sleep is disrupted and he feels tired and lethargic.
32 He says he has constant lumbar spine pain and occasional symptoms into his left buttock and leg.
33 The only employment which the various vocational institutions have been able to offer was a job involving the packing of Christmas hampers. He is not clear as to the hours he was required to work, nor the precise duties involved, but the wage was $15 per hour. He said that that was not sufficient wage to entice him to take the job and that it was “too cheap”. He said he would be happy to take a job if the pay was $20 per hour.[19] The plaintiff said that he had looked in the newspapers and on the internet for jobs once or twice, but that he had never applied for any jobs himself.
[19]T 74
34 He was asked the following:
“Q: Do you think you can work now?‑‑‑
A: Maybe on a light duty job, yes, which I am looking for work, I'm not going to say I'm not looking for work.
Q: What kind of light duty job do you think you can?‑‑‑
A: I don’t know, depends what – what’s available and what sort of you know, takes my interest. I do want to do something that I – I actually like to do, it’s not like I want to be forced somewhere. I will do a light duty job if it takes – if I actually like to do that, yes.”[20]
[20]T 72, L12-20
35 A number of prospective areas of employment, including as a warehouse administrator, stock clerk and production clerk were put to the plaintiff. He said that he had no training in any of those particular areas and would have difficulty using a computer. He further said that because of the medication he was taking, it made it difficult for him to stay alert and concentrate. The Panadeine Forte made him drowsy.
Medical Opinions
36 According to the report of the plaintiff’s general practitioner, Dr Brophy, he described the plaintiff as poorly motivated. As to his work capacity, he said:
“Mr Cini remains unfit for his pre injury duties or any duties involving bending and lifting. If he were motivated I believe he could manage duties of a quite sedentary nature, initially at reduced hours. However Mr Cini’s depressive illness has had a serious effect on his motivation and concentration.
…
Suitable duties would be sedentary with no bending or lifting, alternate seated and initially at reduced hours.”[21]
[21]PCB 51
37 The plaintiff was examined by Mr John Cunningham, orthopaedic surgeon, in July 2012. He described the plaintiff as being quite disabled in his activities of daily living. There was limitation in walking, sitting and standing. He considered the plaintiff’s prognosis as dismal and said he would benefit from a multidisciplinary rehabilitation program. He said:
“It is important to note though that as Mr Cini’s pain has now gone on for so long, it is unlikely that he will ever return to gainful employment.”[22]
[22]PCB 76
38 The plaintiff was examined by Mr Paul D’Urso, neurosurgeon, in February 2012. He noted the MRI scan of October 2009 demonstrated a central prolapse at L5-S1 and minor central prolapse at L4-5. He said the plaintiff had developed a long term incapacity in relation to his lumbar spine and that incapacity was permanent and of at least a partial nature. He said the degree of symptoms and incapacity appeared to be out of keeping with the imagining which had been performed. He said:
“Joe will not be able to return to preinjury employment and would appear to have limited capacity for employment in general. Workplace activity does appear to have contributed to the onset of incapacity and any subsequent disability.”[23]
[23]PCB 89
39 Mr Peter Battlay, surgeon, examined the plaintiff on behalf of the insurer in November 2010. He, like other practitioners, obtained a history that the plaintiff used to enjoy boating, fishing and riding dirt bikes and go-carting, but since his back injury he cannot do these things. He considered that the plaintiff has sustained lower lumbar disc derangements in the workplace incident and as a result had suffered a permanent impairment.
40 The plaintiff was examined by Mr Geoffrey Klug, neurosurgeon, in September 2012. He was told by the plaintiff that his symptoms had undergone some improvement, although had never settled. The plaintiff said he was never completely pain free and had, in addition to low back pain, a tingling sensation in his toes of the left foot. He was unable to detect any impaired neurological function in the lower limbs, although noted there was some ill-defined sensory changes, but these did not follow any anatomic pattern. He said that the imaging showed disc disorder at L4-5 and L5-S1 and that this was probably the source of his low back pain. He said the injury was responsible for some lessening in the plaintiff’s work capacity. Mr Klug said:
“In my opinion he could not undertake the types of work he performed prior to sustaining injury to his low back. Any activities where he is required to bend, twist and lift, particularly on a repetitive basis would in my opinion not be compatible with his current condition. When one considers his background and his current condition I feel it would be very difficult to try and define a suitable type of employment for this person.”[24]
[24]PCB 101(h)
41 The plaintiff was examined on behalf of the defendant on a number of occasions by Dr Philip Mutton, occupational physician. As to the plaintiff’s work capacity, he said:
“It is most unlikely that he can return to his pre-injury duties. He will always be restricted to light duties of the order of 10 kg heavy lifting and avoidance of pushing, pulling and twisting motions. It may be appropriate to commence vocational retraining while he continues to rehabilitate from his back injury.”[25]
[25]DCB 28
42 The plaintiff was examined by Dr P Clark, occupational physician, in May 2010. He did not consider when he examined the plaintiff that his back pain was related to the work incident. He thought the plaintiff could undertake suitable manual handling work, avoiding bending into awkward positions.
43 The plaintiff was examined by Mr Clive Jones, orthopaedic surgeon, in 2010 and again in August 2012. He initially considered that the plaintiff had suffered an aggravation of the underlying degenerative change in his lower spine. He thought the plaintiff had a light work capacity. He thought there was a suggestion of exaggeration in the presentation.
44 In his final report, he said he considered the changes in the lumbar spine as “not far off normal”. He said they reflected degeneration rather than injury. He did not believe the workplace injury continued to materially contribute to the current condition. He said the plaintiff clearly had a light work capacity and could function where weight lifting was limited to 5 to 10 kilograms. He gave the following opinion:
“There has been no functional improvement since I last saw this man in December 2010. Mr Cini remains unemployed despite what was described as a number of attempts to secure work of some kind. Psychiatric reports speak of depression and anxiety. He has been disinclined to enter or sustain interest in any form of pain management program, and withdrew from this after a few appearances. His motivation to rehabilitate and improve function appears to be at a very low ebb. It seems that he has become social (sic) withdrawn, and highly dependent on his family. A long period of unemployment appears to be in prospect.”[26]
[26]DCB 73
45 Finally, a report of Dr Anthony Kam, radiologist, was tendered. He said he agreed with Mr Jones’s comments that the state of the plaintiff’s lumbar spine from the radiology was not far off normal. He said the discs at L4-5 and L5-S1 showed some mild disc contour changes. He said there were focal disc protrusions at L4-5 and L5-S1 but that these were commonly seen on persons of the plaintiff’s age, without a history of spinal injury. He acknowledged, however, that it was important to consider radiological appearances in the clinical context.
Conclusions
46 I accept the plaintiff suffered an injury to his lower spine in the workplace incident in October 2008. I accept the opinion of most of the practitioners that this was an aggravation of an underlying disc degenerative process which had been asymptomatic to that time.
47 I found the plaintiff an unreliable historian. His description of the nature and extent of his pre-existing shoulder injury was quite inaccurate and incomplete. Further, I was unimpressed with the evidence of the plaintiff that a range of recreational activities were lost to him as a result of the lower back injury. These included motor cycle riding, go-carting and to some extent fishing. It is clear that these activities were significantly curtailed as a result of his shoulder injury. I would have expected the plaintiff to make that clear in his affidavit. As a result, in my view, his credibility is affected.
48 I am further unimpressed with the plaintiff’s attempts in rehabilitation and retraining. His attempted return to work over one day was cursory and I would have expected a more significant effort, even accepting climbing two flights of stairs aggravated his back.
49 Likewise, his attempt at rehabilitation at the Dorset Rehabilitation Centre was completely unimpressive. Many of the specialists had advised him to undertake that program. He left after a very short time thinking there was nothing that could be done for him and that he knew what it was all about and a waste of time. Likewise, when an offer of employment was made to the plaintiff for packing Christmas hampers, he decided the rate of pay was too low. I have little difficulty accepting Dr Brophy’s view that the plaintiff lacks motivation.
50 All of these matters reflect upon the plaintiff’s credibility. They also reflect upon whether he has made a reasonable and genuine attempt at rehabilitation and retraining.
51 Dealing first with the plaintiff’s claim as to pain and suffering, I accept the plaintiff suffered injury to his lower spine which has been the cause of ongoing low back pain and restriction. I accept there has been some effect upon his recreational and domestic activities, including his loss of ability to look after his birds, some restriction in his capacity for fishing and I accept that he has an impaired capacity to sit and stand for lengthy periods. I also accept that he has reduced ability to bend and twist.
52 The low back pain requires him to take significant quantities of pain relieving medication on a regular basis, although his treatment from medical practitioners is only modest. I accept that his sleep is affected, and his capacity to enjoy sexual relations is affected. For these reasons, in particular his ongoing low back pain, the consequences to the plaintiff do reach the “very considerable” level in respect of pain and suffering.
53 However, in my view, the plaintiff does have a work capacity.
54 Many of the practitioners who have examined the plaintiff have concluded that he is not fit to return to his previous duties. I accept those opinions.
55 Section 134AB(38)(g) says:
“a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred … .”
56 As stated, I am unimpressed by the plaintiff’s attempts at rehabilitation and retraining. His attempt to return to work was cursory at best. He refused to participate in the rehabilitation program which was recommended by a number of specialists. He was offered a job which he rejected because the pay was not sufficient. All of these matters speak of a lack of a reasonable attempt at retraining. Had the plaintiff participated in the retraining program, and made a more significant effort to return to work, I am of the view his employment capacity would be enhanced.
57 Many of the practitioners, in particular Dr Thomas, state the plaintiff has a capacity for lighter duties. Provided the plaintiff has a lifting limit restricted to 10 kilograms and avoids repeated bending, lifting and twisting. I accept Dr Thomas’ opinion.
58 Any assessment of work capacity must have regard to the definition of “suitable employment” set forth in s5 of the Act. That definition requires the Court to have regard to:
·the nature of the worker’s incapacity
·the nature of the worker’s pre-injury employment
·the worker’s age, education, skills and work experience
·any occupational rehabilitation services.
59 It is clear the plaintiff has spent much of his working life in manual activities. I accept he has limited computer skills and, despite reference in some of the earlier materials, the plaintiff has limited capacities in any employment which would require substantial reading and writing. He is now almost forty-two years of age and of recent years has had a considerable period of time away from employment. He has had some assistance from the vocational agencies in seeking employment, although that has been limited. I further take into account that he is on medication which he says, when he takes a significant quantity, makes him somewhat drowsy.
60 Even notwithstanding all of these matters, I am still of the view the plaintiff has a work capacity for sedentary employment, with restrictions on lifting and bending et cetera.
61 I am not able to say with certainty precisely what job the plaintiff could undertake. A number of potential areas of employment were identified by the WorkFocus Group.[27] These included warehouse administrator, stock clerk and production clerk. The duties in respect of each area of employment are set out.[28] While I accept the plaintiff would have difficulty if computers were involved, and that he has no particular training in those areas, those, or other similar sedentary jobs are, in my view, within the plaintiff’s capacity.
[27]DCB 205
[28]DCB 211-213
62 Further, the plaintiff’s work capacity would, as earlier stated, be enhanced had he made a more significant attempt at rehabilitation and retraining.
63 In all these circumstances, I am not satisfied, the onus being upon the plaintiff, that he has suffered a 40 per cent loss of earning capacity as a result of the lumbar injury. He was working approximately 27.5 hours per week prior to the lumbar injury. It is for the plaintiff to prove that he has no capacity to work more than 16.5 hours per week. I am satisfied he has that capacity in appropriate employment.
64 In all the circumstances, the plaintiff’s application in relation to earning capacity fails.
65 I shall make the appropriate orders.
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