Colic v Victorian WorkCover Authority
[2024] VCC 427
•12 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-04145
| JADRANKA COLIC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 March 2024 | |
DATE OF JUDGMENT: | 12 April 2024 | |
CASE MAY BE CITED AS: | Colic v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 427 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application - loss of earning capacity – workplace injury – left foot injury – plaintiff reliability
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Johns v Oaktech Pty Ltd [2020] VSCA 10; Hamidi v Transport Accident Commission [2023] VSCA 139; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109
Judgment: Partially granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis with Ms N Hanna | Redlich’s Work Injury Lawyers |
| For the Defendant | Mr B McKenzie | Hall & Wilcox |
HIS HONOUR:
1Jadranka Colic fractured her left ankle at work as an authorised officer with Metro Trains on 13 August 2019. She claims that ankle fracture results in pain and suffering impairment consequences and loss of earnings capacity consequences which are “more than significant or marked”. There is no issue that the injury occurred at work or that it is permanent. The main point of contention became whether Ms Colic could demonstrate the loss of earning capacity consequences. To this end, the Victorian WorkCover Authority (“VWA”) submitted that she had given unreliable and inconsistent evidence.
2Overall I find, Ms Colic is entitled to a determination in respect of her pain and suffering consequences, however, due to the unreliable nature of her evidence, she is not entitled to a determination of serious injury in respect of loss of earning capacity.
Relevant chronology
3Ms Colic was born in June 1966. She completed secondary schooling.
4After completing secondary school, she began employment with the child support agency and worked for the Australian Tax Office (“ATO”) as a debt recovery agent. During this period, she had one child. She has no relevant past medical history.
5She was given a redundancy from the ATO in about 2013/2014. She then trained for, and joined, Metro Trains as an authorised officer. She was required to complete a Certificate III in Public Transport.[1] She deposed that she was in good physical health at this stage.
[1]Plaintiff’s Amended Court Book (“PACB”) 15
6On 13 August 2019, she was engaged in a training exercise when she slipped out of a carriage and fractured her left ankle. She was taken to Cabrini Hospital and treated by open reduction and internal fixation of the left ankle. She was under the care of Mr Jonathan Robin, an orthopaedic specialist, at this stage. After discharge, she came under the care of her treating doctor, Dr Niaz Reza.[2] She had an uncomplicated recovery and did physiotherapy with Mr George Antoniou.
[2]PACB 60
7She returned to work in about January 2020, increasing her hours gradually until she achieved 36 hours per week.[3] She returned to work as an authorised officer but was limited in some of her pre-injury duties, mainly performing administrative, quality control duties, and also some work at barriers inspecting tickets. She continued working with Metro Trains in this modified-duties roles on full-time hours through 2020. She suffered from worsening pain and came under the care of Dr Slava Poel, a pain specialist.
[3]PACB 17
8Mr Robin noted that, as at September 2020, she had no work restrictions.[4]
[4]PACB 66 and PACB 94
9Psychologically, she worsened during 2021 and came under the care of Ms Natalie Anker Cohen, a psychologist, in April 2021. Her psychological state is not in issue in this proceeding so I will not refer to it further.
10She was reviewed by the Metro Trains’ doctor, Dr Stuart Turnbull, in mid-2021. It was clear that she was not able to perform authorised officer duties because of the load on her left leg. This was, in part, contributed to by the vest weight that authorised officers are required to carry. As a result, she was terminated from Metro Trains because she could not do full duties.[5]
[5]PACB 17 and PACB 131
11In August 2021, she was assessed by Dr Niaz as having minimal pain, but having some neuropathic pain in the last three toes of the left foot. She walked with no limp and Dr Niaz considered that while she was limited in her work capacity, she could return to work full-time but in a less physically demanding role.[6]
[6]PACB 60
12On 5 August 2021, Mr Antoniou reported that, while she was recovering well and she could walk for longer periods, she found sitting for more than thirty minutes difficult.[7]
[7]PACB 70
13In February 2022, she commenced at Monash Health as a clerk. She deposed to applying for the job on a part-time basis, but almost immediately upon commencing she began working full time, with one day off per calendar month.[8]
[8]PACB 24
14As to the ongoing treatment for her left ankle, in her first affidavit, sworn in March 2023, she deposed to requiring physiotherapy once per fortnight, seeing her treating doctor once a month, and otherwise requiring infrared sauna once per fortnight and using anti-inflammatory patches two times per week, Nurofen and regular Epson salt baths.
15In May 2023, she completed a pain management course at Metro Pain Group. Shortly afterwards, in June 2023, she left Monash. She deposed that she struggled with the hours and ultimately resigned because “[she] could not cope with the duties”.[9]
[9]PACB 24
16Shortly thereafter she commenced a position at Holmesglen Private Hospital (“Holmesglen”). She remains in this role. She deposed that she was contracted to work at Holmesglen 60 hours over a nine-day fortnight.[10] Her work at Holmesglen is to work in clerical and administrative duties. This can involve her working at a desk, but also moving about the hospital to assist in delivering files, papers and sometimes directing patients.
[10]PACB 25
17In a report dated 22 February 2024, Dr Niaz noted that Ms Colic was unable perform full-time hours, that she limped and had paraesthesia in her left foot. He recorded a history of her doing only 60 hours per fortnight.
18In her affidavit, sworn 10 March 2024, Ms Colic deposed to having ongoing problems with the left ankle. To manage these problems she deposed to requiring physiotherapy once per fortnight and a sauna once per fortnight. She would occasionally see the treating doctor. She deposed to requiring Advil two to three per day, sometimes every second or third day, and taking three to four Panadol per day. She described constant pain, cramping and swelling, with sleep disruption.
19She further deposed to recently being asked to increase her hours at work from 60 hours up to 76 hours per fortnight.[11]
[11]PACB 25
Reliability of the Plaintiff
20It has often been said that the reliability of the plaintiff’s evidence in a serious injury application is critical.[12] But an assessment of a serious injury application does not stop at simply an assessment of Ms Colic’s reliability and credit. All the evidence in the case must be assessed before a determination can be made.[13]
[12]Johns v Oaktech Pty Ltd [2020] VSCA 10 at [76]; Hamidi v Transport Accident Commission [2023] VSCA 139 at [51]; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109 at [87].
[13]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 (“Cakir”) at [49]
21In this case the major ground of criticism was the evidence the plaintiff gave regarding her loss of earning capacity. It was said to be unreliable because it understated her actual hours worked and her overall capacity. This arose from her affidavit evidence regarding her employment at Holmesglen as an administration officer.[14] She gave evidence in the following terms:
“In about July 2023, I joined Healthscope [Holmesglen] as an administrations officer on a part time basis… “.
[14]PCB 24 Affidavit of the Plaintiff at [29]
22Then at [30] she deposed:
“I am contracted to work sixty hours over a nine-day fortnight. I am currently earning $28 per hour or approximately $1500 net a fortnight or approximately $650 net a week”.
23Lastly she went on at [34] to state:
”In the past few months I have been asked to increase my hours more than contracted hours up to 76 hours a fortnight. In reply my employer gives me time in lieu for the additional hours that I have worked.”
24The first inconsistency in the Plaintiff’s evidence arises from her evidence at [34], namely that it is only in the “past few months” that she has been asked to increase her hours to more than the contracted hours. The affidavit where this evidence was contained was sworn in March 2024. The Plaintiff was clearly indicating that she had only recently begun working more than 60 hours. This seems incorrect. As the table below, based on Ms Colic’s pay slips, shows, almost immediately after joining Holmesglen, in July 2023, she began working more than 60 hours per fortnight.
# Date Hours Overtime Total (gross) 1 24/7/2023 - 6/8/2023 76 - $2006.68 2 7/8/2023 – 20/8/2023 76 2.93 $2136.83 3 21/8/2023 – 3/9/2023 76 1.73 $2131.56 21/8/2023 – 3/9/2023 (Backpay) - - $112.42 4 4/9/2023 – 17/9/2023 76 1.77 $2133.18 5 18/9/2023 – 1/10/2023 68.5 + 7.5 (P/H) 4.18 + 1.5 $2340.55 6 2/10/2023 – 15/10/2023 76 5.88 $2357.44 7 16/10/2023 – 29/10/2023 76 1.13 $2111.18 8 30/10/2023 – 12/11/2023 59.5 + 7.6 (P/H) 0.80 $1855.11 9 13/11/2023 – 26/11/2023 59 5.43 + 2.57 $2632.76 10 27/11/2023 – 10/12/2023 67.5 - $1927.58 11 11/12/2023 – 24/12/2023 67.5 - $1927.58 12 25/12/2023 – 7/1/2024 41 + 24.6 (P/H) - $2725.84 13 8/1/2024 – 21/1/2024 76 $2170.31 14 22/1/2024 – 4/2/2024 67.5 + 8.5 (P/H) $2169.83 15 5/2/2024 – 18/2/2024 76 1.33 $2246.12 16 19/2/2024 – 3/3/2024 75.5 $2156.03 TOTAL
AVERAGE
1,086.20 / 32 =
34hrs per week or 68 hrs per fortnight29.25 / 32 =
0.9hrs per week or 1.8hrs per fortnight
$35141.00 / 32 weeks =
$1098.15 per week
25It can be seen that the Plaintiff has consistently worked more than the contracted hours of 60 per fortnight since she began employment. In addition, she has taken on overtime work. This clearly contradicts the evidence she has given that only in the few months prior to March 2024 has she been asked to increase her hours to more than the contracted hours. Rather it shows that she has worked by and large close to 70 hours on average and often regularly 76 hours per fortnight.
26The next point to be made about her evidence set out at paragraph [34] is in regard to her suggestion that her employer gives her time off in lieu (TOIL) for the additional hours that she worked. In cross examination, she was adamant that she worked a nine day fortnight with TOIL.[15] The pay records do not substantiate this. In fact there is simply no recording of TOIL in the pay records at all. I consider this solid evidence that there is no TOIL taken. Further, while it may be accepted that the plaintiff only works a nine day fortnight, the pay records, as set out above, clearly show the hours that she was working in those nine days. These hours seem to be reasonably consistent since she commenced with Holmesglen. They are almost full time hours.
[15]T49.L24-29
27An analysis of those hours and pay indicate the following averages during the course of her employment with Holmesglen:
(a) The average hours worked (inclusive of overtime) is about 35 hours per week; and
(b) average gross per week earnings of $1098.15 (inclusive of various public holidays however).
28A further area of inconsistency in her evidence arose in respect of her ability to perform computer based activities such as database management. I will deal with this below when I come to assess whether she is able to perform a customer service role. I simply note at this stage that her evidence on this point in cross examination was contradicted by her own resume and work history. I did not find her evidence convincing and it furthers my impression that her evidence on the issue of her capacity for work was inconsistent and unreliable.
Assessment of her current earning capacity
29The plaintiff has a strong work history as set out above. From the date of injury she had a period of time off work and then returned to work on modified duties. This built up to full time hours but she was never able to go back to full duties work with Metro. After an assessment from the Metro work doctor, Dr Turnbull, she was deemed unfit to perform the inherent requirements of the position as an authorised officer. She was then terminated from that position. What is relevant to note from that period of employment was that she was performing full time hours.
30She then applied for a number of different positions. These were as a shop assistant at Priceline Chemist and also a position with the Australian Public Service (APS). While the Priceline position was part time she confirmed in cross examination that if she had been successful with the APS position she would have taken it.[16] This was a full time casual position. I consider this is a strong indication that in the plaintiff’s mind she has a capacity for full time hours.
[16]T25 L16
31Her next period of employment was with Monash Health. Once again in this position she worked 76 hours per fortnight, though with one day off a month.[17] I consider that represents full time hours.
[17]T28 L21-23
32From there she went to work at Holmesglen.
33I set this out to demonstrate a considerable history since the date of the injury of working well in excess of 60 hours per week and in fact consider that she has a capacity for 76 hours per week. I come to this finding noting the unreliability in her evidence on this topic as set out above and also relying on the factual findings of her actual hours worked since the date of injury and by the fact that she has also applied for positions which come with full time hours. I accept that she may need some time off to rest and recover, such as the one day a month or even a fortnight. It is also relevant to note that her treating practitioners, being the general practitioners, Dr Reza and Dr Haque, the treating specialist,[18] Mr Robin, and her treating physiotherapist, Mr Antoniou,[19] have not restricted her hours of work. I consider that she has a demonstrated capacity to work a nine day fortnight to accommodate this such that she works the hours required in nine days – as she is currently doing on a consistent basis.
[18]PCB 66
[19]T 50 L24 - T51 L1
34I make it clear that I do not accept the opinions of Dr Kossman. I have found there is a capacity for consistent full time hours. This is in contrast to his opinion which I find is based on an incorrect understanding of her occupational history post injury,[20] particularly as to how often she works full time hours. Similarly in regards to Mr Altaff’s opinion, I do not accept that the plaintiff cannot work full time hours each week. While she may be taking every second Friday off work to attend physiotherapy, infrared sauna and Epsom salt baths, this has not hampered her ability to work up to 76 hours on a consistent and reliable basis. This seems to be the basis that Mr Altaff founds his opinion that she is unable to work full time. However, as I have set out above it is clear that across Metro Trains, Monash Health and now Holmesglen she is able to consistently work full time hours each week. This evidence stands in contrast to his opinion and I prefer it as it gives a better insight into her actual capacity than his theoretical opinion.
[20]PCB 83
35On this finding the Plaintiff has a capacity to work 38 hours per week at the current hourly rate of $28.50. This is equivalent to $1083. This is a figure below the 60% figure of $1098 which the parties agree is the relevant threshold.
36However the defendant submits that the plaintiff actually has a capacity to earn a greater hourly rate than she currently is on. To this extent they rely on a series of jobs which it is suggested are suitable. I have set out an analysis of each of these positions:
37Customer Services Officer[21]: The plaintiff’s evidence was that she could not do this position as she had no experience updating databases and she did not dispatch goods.[22] In contrast to this evidence was Ms Colic’s own resume which stated that she had experience with databases in the following terms “…maintain, administer and review various databases, registers and systems”[23]. A reading of her whole resume indicates to me that she has the relevant skills to work with databases as the job description requires. As for despatch work, it is clear this is a reasonably standard administrative role, as opposed to a despatch clerk for example in a factory. As for any training, this is not always required however a Certificate III course may be necessary. The plaintiff completed such a course at Metro so has the demonstrated ability to complete such training.. I find the plaintiff has a clear ability to do this role. The earnings for a person performing this work full time are $1196 gross per week. This is in excess of the 60% threshold.
[21] DCB 70
[22]T53 L10
[23]T55 L31 referring to the resume at DCB 124.
38Case Manager[24]: A formal qualification in health administration, business management, general management, medicine or nursing is necessary for this role. The plaintiff is aged 57 and has never obtained such a formal qualification. This position is clearly not within her capacity.
[24]DCB 76
39Electorate Officer:[25] This position requires management of a politician’s office. This involves liaising with other politicians and the media. The plaintiff has no demonstrated skills in these areas. This position is not within her capacity or in line with her demonstrated skills.
[25]DCB 106
40The remaining positions of Program Administrator[26], Public relations (Communications) Professional[27], Call Centre Manager[28], Quality Assurance Manager[29] were all put as within the plaintiff’s capacity. I do not consider this to be the case. Each required a significant tertiary qualification or five years relevant experience. The plaintiff has no such qualification or experience. At her age the notion that she has the capacity to attain such qualification or experience in the foreseeable future is fanciful.
[26]DCB108
[27]DCB110
[28]DCB112
[29]DCB 114
41The result of that analysis is that the plaintiff has the capacity to work at least 76 hours as a customer service officer earning $1196 per week. This is in excess of the threshold. Her claim for a determination of a loss of earning determination must fail.
An assessment of the pain and suffering consequences
42Despite my findings as to the reliability and inconsistency of Ms Colic’s evidence above as to the loss of earning capacity evidence, it is also necessary to assess the evidence overall.[30] I record that broadly speaking, I found Ms Colic to be a straightforward witness. She answered directly. She freely admitted to being able to do a range of activities. She struck me as a conscientious, hard working person who tried her best to answer Counsel’s questions. I consider that aside from the issue of her capacity to work, her evidence was sound and credible.
[30]Cakir
43The assessment of that overall evidence leads me to a finding that Ms Colic satisfies the requirements for a determination in respect of pain and suffering. This was not significantly in dispute between the parties, which means that my reasons in this respect will be brief. Ms Colic has suffered a frank, serious fracture to the left leg.. It required open reduction and internal fixation. The metalware in her left ankle remains in situ. To underline the seriousness of the injury, she returned to work, but has never been able to weight bear as she used to. This is made abundantly clear by all the doctors, but most importantly, the Metro Trains doctor, Dr Turnbull, who certified that she was unable to perform the job tasks that were required of her as a Metro Trains officer.
44Ms Colic is a worker who has an extremely solid work record. She had trained and completed a certificate in order to obtain her role as a Metro Trains’ authorised officer. It was a position with some real responsibility. It was also the highest-paying position she had ever had. There is no doubt that she cannot continue in this role. I do not accept the opinion of Dr Sabetghadamon on this point. While he is suitably qualified, he opines after only one examination. Her treating doctor I consider is best placed to answer questions as to her capacity for her old Metro Trains position. In addition I consider the reporting of Dr Turnbull to be particularly telling and I accept his contemporaneous recording that she is unfit to work at Metro Trains as an authorised officer. She has lost the opportunity to participate in an occupation which she actively sought out, trained for and succeeded in. I consider this to be a significant blow.
45The issues with the left ankle have still not subsided. I have touched on the fact she cannot weight bear as she used to on the left side. In addition, she has ongoing pain, swelling and paraesthesia,[31] which requires pain medication.[32] For the pain and swelling, she sees Mr David Field, a pain psychologist as needed. She consults with Mr Antoniou once per fortnight. She sees a myotherapist once per fortnight, she has infrared sauna and an Epsom salt bath once a fortnight. In addition, she takes Nurofen daily and has patches at the site two times per week. She has, in the past, attended one pain management course. This is a significant course of ongoing treatment required to manage her condition.
[31]PACB 60; PACB 62
[32]Dr Reza at PACB 60; Dr Terence Saxby at Defendant’s Amended Court Book (“DACB”) 65; Mr Antoniou at PACB 72, PACB 14-27; PACB 104
46The uncontroverted evidence as to the frequency of the pain is that she describes it as “constant, persisting pain in and around [her] left ankle. It is there every day. It is constant and varies in intensity”.[33] That history was not substantially challenged and I accept it.
[33]PACB 22
47It is also relevant to look at what Ms Colic has retained. She has an ability to socialise with friends and to participate in pleasurable activities, such as attending shopping centres and the movies. She is able to manage all of the activities of daily living and can drive and catch public transport. I consider these last two activities to be performed without significant difficulty. I make this finding, having regard to the fact that she has been able to navigate work quite successfully over the last three years since the date of injury and her return to full time duties. This is good evidence that she can drive or catch the train to work. She can do so on a regular and consistent basis.
48I accept that her sleep is somewhat disrupted by the pain in her ankle.
49She is able to hold down full-time work and, at time, work overtime hours. Some modifications might be necessary, such as a sit-and-stand desk.
50Balancing those matters, I find that Ms Colic’s injury results in a determination that, for pain and suffering purposes, she has a “serious injury”.
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