Conyers v Highway Tyre Service Pty Ltd
[2017] VCC 553
•12 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-04898
| KEVIN CONYERS | Plaintiff |
| v | |
| HIGHWAY TYRE SERVICE PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 April 2017 | |
DATE OF JUDGMENT: | 12 May 2017 | |
CASE MAY BE CITED AS: | Conyers v Highway Tyre Service Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 553 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the lumbar spine – pain and suffering conceded – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Richter v Driscoll [2016] VSCA 142
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Clements QC with Mr E Makowski | Shine Lawyers |
| For the Defendant | Mr W R Middleton QC with Ms S Gold | Minter Ellison |
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 4 October 2013 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, pain and suffering having been conceded on the morning of the hearing.[1]
[1]Transcript (“T”) 2
3 The relevant body function pursuant to s134AB37(a) is the lumbar spine.
4 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
5 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
6 In this case, 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.
7 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
8 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
9 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
11 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. The plaintiff also relied on an affidavit sworn by his wife, Jeanette, on 7 April 2017. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
12 The plaintiff is presently aged fifty-six, having been born in April 1961.
13 After leaving school at sixteen or seventeen, the plaintiff had a number of casual manual jobs. He worked in various places as a tyre services fitter prior to working for the defendant. He also worked as a truck driver, mainly delivering concrete.
14 The plaintiff believed he commenced work for the defendant in 2001 as a tyre fitter for trucks and cars. His duties included lifting tyres by hand, operating machinery and tools such as rattle guns.
15 In cross-examination, the plaintiff agreed he worked for the defendant in 1999 and then started again in March 2000 as a casual truck driver, delivering tyres and picking up scrap, mostly by car, but sometimes by truck. He may have had that role until August 2003.[4]
[4]T13
16 The plaintiff then said he initially started with the defendant as a truck driver in 2001 and eventually became a “warehouse manager” and later went to the Mordialloc store where he stayed until 2005. He then described this role as “2IC” at Dandenong.[5]
[5]T13
17 The plaintiff had this role for months, picking orders and making sure the trucks got out. He handled tyres all the time and did tyre fitting only on Saturdays.[6]
[6]T14
18 In about 2005, the plaintiff worked as a truck driver for Dandy Premix for two years, operating a ready mixed and pre-mixed concrete truck. He then returned to the defendant’s employ.[7]
[7]T11
19 As at the said date, the plaintiff was earning $17.20 an hour or $653.60 per week.[8]
[8]Claim for Compensation dated 7 October 2013
20 Whilst the plaintiff had episodes of lower back pain in 2004[9] and also in mid-2009 and 2010,[10] these were relatively minor and it was not suggested this was an aggravation case.
[9]T29
[10]T32
21 On the said date, the plaintiff was working for the defendant fitting a tyre truck and, while lifting the tyre, he felt extreme pain (“the incident”).
22 After having seen his general practitioner, the plaintiff returned to work on modified duties and hours but then required further time off. His Claim for Compensation dated 7 October 2013 was accepted.
23 In mid-2014, the plaintiff was scheduled to undergo back surgery with Mr Maartens. The surgeon called off the procedure on the day thereof when the plaintiff was in hospital awaiting surgery. The plaintiff agreed that as Mr Maartens reported, he had been asymptomatic for two weeks prior thereto. The surgery was cancelled and when he got worse, the plaintiff returned to his doctor, who referred him to Mr Wong.[11]
[11]T27
24 In about July 2014, the plaintiff returned to work and tried to push on with modified duties and hours but even doing so caused his back pain to increase. In about September that year, he tried working five hours, three days a week and doing normal jobs without restriction. However, the following month, he found it difficult coping with five hours per day and had some further time off work.
25 After conservative treatment, the plaintiff had surgery performed by Mr Wong on 6 February 2015 (“the surgery”).[12]
[12]Left L5-S1 laminectomy, discectomy and rhizolysis, PCB 31
Post-surgery
26 The plaintiff did not regard the surgery as successful. It was not a “quick fix.” He did not discuss his work future with Mr Wong before or after the surgery. All Mr Wong cared about post surgery was whether the plaintiff had burning pain down his leg. The surgery relieved the plaintiff’s leg pain a little bit and but he still suffers with it today.[13] The plaintiff disagreed when last examined by Mr Wong on 15 July 2015, he told him that post-surgery he continued to improve.[14]
[13]T19
[14]T22
27 The plaintiff’s condition has worsened since the surgery. Whilst he is a man who goes to the doctor if he has a problem, the plaintiff has not returned to Mr Wong as he “let him go”. He did not need to see Mr Wong again and Mr Wong did not need to see him anymore.[15]
[15]T25, T27
28 The plaintiff has told Dr Gunawardana that he was not improving after the surgery but his doctor “was just there to fill out his medical certificates”.[16] The plaintiff did not ask for a further referral to Mr Wong because of his previous advice.[17] The plaintiff guessed he was his own worst enemy in putting up with the pain and not seeking further specialist referral.[18] He was “too busy being good at what [he] was good at … tyre fitting”. He just wanted to work. He did not complain and he just “put [his] head down and backside up”.[19]
[16]T28
[17]T27
[18]T67
[19]T29
29 The plaintiff believes he recommenced working on modified duties and hours in June 2015, eight weeks after the surgery. During that year, he was doing his best to stay at work but it was always a struggle. He is not a complainer and he tried his best to cope with his back and leg pain.
30 On returning to work, the plaintiff started on reduced hours and modified duties and tried to build up the hours he worked, as he did before the surgery. He got to 30 hours per week but then had a setback when he fell over at work. However, he knew there would be problems lasting long term, even on modified duties, because lifting, bending and twisting of the back movements were still required, which increased his back and leg pain. He was hoping that the defendant would re-train him so he could move away from the factory floor, but no retraining was provided.
31 In 2015, the plaintiff was based at the defendant’s Doveton store, which was closer to his house, because driving longer distances caused back and leg pain. He was given a driving job for a day at Mitcham but did not last long as the Range Rover provided was too high and prolonged driving increased his back pain. Therefore, he returned to work at Doveton.
32 After the surgery, the plaintiff also took days off from time to time due to back and leg pain. He had regular flare ups of pain, but some days were better than others.
33 The surgery assisted the plaintiff’s leg pain for a period, but as at April 2017 when he swore his most recent affidavit, the pain was at the same level that it had been before the surgery and was constant.
34 As 2015 progressed, the plaintiff felt he was being pushed to increase his hours, even though he was finding it hard to cope because of his pain. He regularly sat down during the day and was in constant pain when he tried to do modified work.
35 In November 2015, the plaintiff had to take some time off due to increased back and leg pain. By late 2015, he was doing his best to work about 25 hours a week but was not coping properly. In any event, he was told his role was not one which could be provided on an ongoing basis until he could do full-time hours.
36 During that time, Dr Gunawardana was providing certificates with lifting limits of up to 30 kilograms.[20] The plaintiff ended up with a lifting limit of 25 kilograms, working 5 hours per day.[21] He never complained and agreed he was coping with his work.[22]
[20]T18
[21]T19
[22]T24
37 The plaintiff has never been able to return to pre-injury duties or work full time since the incident.[23] His pain did not resolve when he was seeing Mr Maartens and it has always been present in his back and left leg in particular since the incident.
[23]T20
38 The plaintiff was advised by letter from the defendant dated 22 January 2016 that as he was unable to perform his modified role in a full-time capacity, thus his employment was terminated. He has not been able to return to any paid employment since that date.
39 In further correspondence to the plaintiff dated 3 February 2016, the defendant advised that as the plaintiff had no current or future capacity to perform the full-time inherent requirements of his present role or the role he was originally employed to perform, the company had no alternative but to terminate his employment.
40 The plaintiff was retrenched on 29 January 2016. At the time he ceased work, the plaintiff was fitting car tyres only and was on modified duties.
41 The plaintiff started some voluntary work for the Salvation Army in about March 2016, which he did for about two to three days a week for about four hours. In about April 2016, he stopped that work on the recommendation of his general practitioner.
42 The voluntary work involved driving a van to collect furniture and other items and the plaintiff was not required to do any lifting.[24] He was not based in a warehouse sorting goods.[25] He started this work as a back up to returning to the workforce as his doctor had told him he was unfit for work. This voluntary work finished in about April 2016.[26]
[24]T38
[25]T42
[26]T39
43 Whilst doing voluntary work, the plaintiff was driving short distances in a role that was nothing like a real job. He had not been told by Centrelink that he was required to apply for jobs.[27]
[27]T40
44 For most of his working life, particularly in recent times, the plaintiff had been a tyre fitter working in that role for thirty-seven years.[28] He had always preferred to get his hands dirty. He was not a motor mechanic and does not have those qualifications. He has a certificate as a tyre fitter. He also has a very outdated welding certificate, but is not a welder and is not very good at welding. He also has a car-detailing certificate which he obtained a long time ago, but he is not a car detailer.
[28]T101
45 The plaintiff’s back and left leg pain is now constant but fluctuates. The more he does, the more pain he has in these areas. If he tries to do the mowing, it takes him longer than before the incident.[29] He only does it slowly once a month and suffers increased pain thereafter. He does these types of activities, as he needs to try and do at least something, otherwise he fears his health and mental wellbeing will decline.
[29]T34
46 The plaintiff tries to stay active. That does not mean he is not in pain. He is in pain all the time even though he is no longer working. Even the simplest activity causes an increase in pain.[30]
[30]T33
47 The plaintiff is not frightened to have a go at physical activities such a moving light metal sheets on a trailer and taking them to the scrap-yard with his stepfather.[31]
[31]T36
48 The plaintiff has ongoing problems with sleep due to pain.
49 The plaintiff avoids taking medication as he has, in the past, tried stronger pain medication and it has not helped him and negatively impacted on his mental state. He uses anti-inflammatories now and then and overall, just puts up with the pain as best he can.
50 The plaintiff last took some form of anti-inflammatory the week before the hearing and prior thereto, had not taken them for a while. He continues to have the occasional anti-inflammatory such as Voltaren and also Panadol.[32]
[32]T24
51 The plaintiff has physiotherapy once a fortnight with funding due to cease later in the month.[33] That treatment helps for a couple of days but sometimes the plaintiff feels worse after it. He also continues to see Dr Gunawardana.
[33]T45
52 The plaintiff has difficultly with prolonged driving, causing increased back and left leg pain after 40 minutes to an hour. His pain is unpredictable and he does not know when he will have a bad day or when he is limited to not doing much, and just trying to lie down or sit down and reduce movement as much as possible.
53 The plaintiff has not applied for any jobs since ceasing work with the defendant in January 2016.
54 The plaintiff would like to work but he worries that realistically there is no suitable work for him which he could do reliably or regularly due to his pain. The plaintiff did not know who would take him on:
“I’m nearly 56 years of age. I have been in the traps and I have seen what goes on. I would not last- I have no computer skills or anything. I haven’t got a high paying job just as yourself has, I’m just an honest bloke trying to do the right thing and I’m sorry … There’s nothing out [there] that I’m good at, there’s nothing else I can do.”[34]
[34]T47
55 The plaintiff would attempt jobs and put up with pain and do them.[35]
[35]T67
56 The plaintiff has never really thought about doing a computer course. He had “screamed out for help and been pushed back every time”. Whilst still with the defendant there was not an offer, but a suggestion by NES in 2015 of a course. He “agreed and followed the rules” but nothing ever eventuated so he gave up.[36] He was willing to give it a go. They told him they would get back to him but no one ever did.
[36]T17
57 The plaintiff would be willing to attend the computer course at Narre Warren suggested by NES but there is no guarantee he could complete it.[37]
[37]T66
58 The plaintiff was unsure as to who would fund the $214 computer course at Narre Warren. He would give it a go but with a view to getting work, “good luck to that one”. He would have a crack at it if he knew there was a chance of getting work. He was not trying to be negative about it.[38]
[38]T63
59 The plaintiff gets increased back and leg pain from prolonged sitting or standing. Bending and twisting increases pain and even moreso if he has to do it repetitively. The plaintiff agreed, as the vocational assessor Mr Janides noted earlier this year, that his standing and sitting tolerance was less than 30 minutes.[39]
[39]T57
60 Whilst Mr Janides thought the plaintiff had very good interpersonal and communications skills, the plaintiff did not understand what that really meant: “Obviously I’ve got a good communication - I’ve never been praised like that before.”[40]
[40]T59
61 The plaintiff started using a walking stick about six to eight months ago because of balance problems as a result of pain down his lower back and left leg. He uses it just when he goes out. He has had a couple of falls.[41] No doctor has suggested he use a stick.[42]
[41]T12
[42]T36
62 Bearing in mind the plaintiff’s chronic back and leg pain, his vocational and educational background, his very limited computer skills and lack of customer service skills or experience, the unpredictability of his back and left leg pain, and the fact that even when he is doing modified work he is still in constant pain and struggling despite trying to do his best, he fears his earning capacity has realistically been destroyed and at least very significantly compromised.
63 The plaintiff would now be unable to do the duties he undertook as the 2IC as he does not have the qualifications. He was given that role when the warehouse manager left. Things would now be run differently. He could not do the job if tyre fitting was not required. He lacked the necessary computer skills.[43]
[43]T16
64 The plaintiff does not recall telling doctors or vocational providers of his work in this role.[44] He initially agreed he could physically do this job provided he had the proper skills but then said he did not know if he was physically capable.[45]
[44]T48
[45]T49
65 The plaintiff has never been the boss of anyone. His only experience with customer needs was in the tyre fitting side, not the office. He did not do much paperwork in the 2IC role. He had the help of the office staff and all he did was organise stock.[46] His trade skills are in tyres, not the auto field itself.[47]
[46]T59
[47]T60
66 In re-examination, the plaintiff explained that it was towards the end of 2001 when he worked in the warehouse when he “took it upon [himself]” to be a 2IC.[48] This role lasted for under a month. During that time, he helped the office staff pick the orders. He had nothing to do with the office side of things.[49]
[48]T69
[49]T71
67 If the job he was doing at the time of retrenchment was still available, the plaintiff would give it his best shot but there was no guarantee how long he would last.[50]
[50]T32
68 Whilst the plaintiff still holds an endorsed licence, he could not do a job similar to his role at Premix because of the bouncing of the truck and his problems with prolonged sitting, driving, even a car.[51]
[51]T54
69 The plaintiff was cross-examined at length as to the roles suggested as suitable for him in the 2017 vocational report. Whilst the plaintiff explained he had no experience working in these roles and lacked the necessary computer skills for some of the jobs, the plaintiff would try to do these jobs.
70 The plaintiff could probably do a number of the tasks of a service advisor in the tyre auto field but was not too sure whether he could assess and estimate damage and costs.[52]
[52]T61
71 The plaintiff would be prepared to try working as a donation sorter.[53]
[53]T64
72 The plaintiff did not think he would be “trained too well” in taking samples of grain, a task included in the role of a weighbridge officer, but he would be willing to try that job.[54] He thought he could do the work duties of a storage consultant.[55]
[54]T65
[55]T66
73 The plaintiff does not have any sales experience. He would not know how to look up stock, quantities, price and GST on the computer.[56]
[56]T56
74 In re-examination, the plaintiff had some doubts as to his ability to do the jobs suggested. In terms of service advisor, the plaintiff has never been involved in ordering parts and liaising with external organisations. He has never used computer systems to produce invoices.[57] He did not know what data management involved. He has never been involved in vehicle repair.[58]
[57]T71
[58]T72
Lay evidence
75 The plaintiff’s wife, Jeanette, swore an affidavit on 7 April 2017. She and the plaintiff have been married since June 1986 and they have two children.
76 Jeanette confirmed that the plaintiff was a hardworking, non-complaining man pre incident and his difficulties thereafter with constant pain, limping and reduced input to housework, shopping and gardening. He has also had problems with sleep, frustration and anger and difficulty sitting for prolonged periods.
Treaters
77 Dr Gunawardana, the plaintiff’s general practitioner from Doveton Medical Centre, has reported on a number of occasions. He diagnosed an L5-S1 disc prolapse with associated S1 nerve root compression.
78 Dr Gunawardana referred the plaintiff to Dr Mark Patrick, rheumatologist.
79 Dr Patrick reported that he first saw the plaintiff in November 2014 because of persistent back pain and the plaintiff’s inability to maintain himself at work. There had been two failed attempts to return to work, and the plaintiff was suffering increasing pain with function radiating to the left leg with a burning sensation down that leg, leaving him unable to continue.
80 Dr Patrick noted the plaintiff’s symptoms improved in October 2014 after he left work, but he described a constant pressure sensation in the left lumbar spine, with some discomfort and heaviness into the left leg and down to the knee, worse with standing and walking. Back, rather than leg symptoms, were more troublesome, and the left leg moreso than the right.
81 Dr Patrick thought the plaintiff had mechanical symptoms, with left leg nerve root compromise likely from recess stenosis. Given the plaintiff’s ongoing difficulties with a return to work, and back into leg pain, he thought a multidisciplinary restoration and functional capacity assessment was required, and the plaintiff was referred to the Epworth and Dr Palit for assessment.
82 When he last saw the plaintiff on 14 September 2015, Dr Patrick thought his prognosis would be guarded in terms of longer term requirement for modified lifting, sustained back posture, standing and the like, given the multi-level degenerative problems noted on the December 2013 MRI.
83 Dr Gunawardana also referred the plaintiff to Mr Maartens, neurologist.
84 Mr Maartens saw the plaintiff in April 2014, four weeks after his left L5‑S1 epidural injection. Following this procedure, there was three hours’ alleviation of pain, but then it returned, possibly more severely, and at that stage, the plaintiff complained of bilateral leg pain.
85 As the plaintiff did not want a repeat block, Mr Maartens offered him an L4‑5 microdiscectomy, after which Mr Maartens thought he would be able to consider returning to work within six weeks. The plaintiff was reluctant to consider surgery, despite not wanting interventional pain therapy, and was going to think about how to proceed.
86 The plaintiff was then seen on 9 July 2014, four weeks after the surgery was cancelled. Mr Maartens asked him to recommence normal activities. The plaintiff then maintained he had not suffered any leg pain and only had mild stiffness in his low back.
87 At that stage, Mr Maartens advised he would support the plaintiff in being able to return to work on restricted hours to see how he would cope, and the hours could be increased in incremental fashion depending on his progress.
88 Mr Maartens would suggest the plaintiff return to work for four-hour stretches starting three days a week, and then gradually build up, depending on his progress. A review in three months was suggested.
89 On 29 October 2014, Mr Maartens reported that he arranged to see the plaintiff routinely three months after the surgery was cancelled due to his symptoms having resolved.
90 Mr Maartens then noted the plaintiff had apparently been doing very well until recently, when in the course of his normal responsibilities, he developed a recurrence of lower back and bilateral leg pain, mainly on the left, with burning radiating down both thighs.
91 A repeat MRI scan was arranged to ascertain whether the plaintiff should be considered for surgery. Mr Maartens noted obviously this was very disappointing, given the plaintiff’s improvement.
92 The plaintiff was last seen on 10 December 2014 with the results of the MRI scan. Mr Maartens noted that scan really illustrated the value of contemporaneous radiological investigation, as the L2‑3 and L4‑5 prolapse appeared to have resolved, or was not apparent, and the plaintiff had a significant prolapse at L5‑S1 on the left which appeared to be catching the S1 nerve.
93 On examination, the plaintiff was complaining of leg and no back pain. The left ankle jerk was absent, and there was same subjective weakness of plantar flexion. Under these circumstances, Mr Maartens felt it important to try to get confirmation of this pathology, and had arranged for an S1 nerve root block.
94 Dr Gunawardana referred the plaintiff to neurosurgeon, Mr Michael Wong, who undertook a left L5‑S1 laminectomy discectomy and rhizolysis on 6 February 2015.
95 On review on 15 July 2015, Mr Wong noted since he had last seen the plaintiff he continued to improve. His left leg pain and dysesthesia had completely resolved. However, the plaintiff complained of mild intermittent low back pain, especially after heavy lifting. He noted the plaintiff did not require any analgesic medication. Once again, Mr Wong advised the plaintiff to be careful with heavy manual work. He also advised him to continue with physiotherapy for at least six to twelve months to further improve his low back pain. No further appointment was made.
96 Mr Wong thought the prognosis was good with further physiotherapy treatment.
97 Dr Gunawardana has commented a number of times on the plaintiff’s capacity for work.
98 In July 2015, Dr Gunawardana reported he thought the plaintiff would never be able to return to his pre-injury duties.
99 In February 2016, Dr Gunawardana noted the plaintiff had a series of returns to work on modified duties, working two days a week, two hours a day, from 31 May to 1 July 2015, and thereafter six hours, five days a week, until 9 November 2015. The plaintiff then told him he could only work 45 minutes, and he had time off until 18 December 2015.
100 Dr Gunawardana noted the plaintiff had been getting modified duties five hours a day, five days a week, until then, but unfortunately, he was unfairly retrenched on 29 January 2016.
101 At that stage, Dr Gunawardana considered the plaintiff had sustained a serious and permanent back injury and was currently fit for modified duties, with certificates to that effect.
102 In his report dated 11 July 2016, Dr Gunawardana confirmed he thought the plaintiff sustained a permanent serious back injury and he would never be able to do any job due to his injuries and education.
103 In his report of 3 April 2017, Dr Gunawardana simply stated the plaintiff was unfit for pre-injury duties, either part or full time.
104 Further, in a report of 7 April 2017, Dr Gunawardana stated the plaintiff had a permanent serious back injury and was unfit for any further employment, part or full time.
105 The plaintiff’s physiotherapist, Mr Ngo, from Endeavour Hills Physiotherapy, most recently reported in April 2017.
106 Mr Ngo thought the plaintiff did not have any capacity for any form of work due to ongoing recurrent lower back re-aggravation with his ADLs. In his view, the plaintiff was unable to return to his previous employment due to his chronic ongoing lower back pain, noting he had attempted to remain active at work on light duties until his employment was terminated.
Certificates
107 On 2 November 2015, Dr O’Leary at Doveton Medical Centre certified:
“No lifting bobcat and truck tyres weighing 25 with regular breaks, and stretches. Advised 5 hours a day, 5 days a week, as per RTW plan.”
108 On 7 March 2016, Dr Gunawardana certified the plaintiff as fit to work five hours, five days a week, with a 25-kilogram lifting limit.
109 In an MLC total and permanent disability form following this examination on 7 March 2016, Dr Gunawardana answered “No” to the question whether the patient would ever be able to return to any gainful employment, providing the following reasons: “severe injury, had maximum injury, has chronic pain and restricted movement.”
Investigations
110 Following an x‑ray of the lumbar spine in June 2009, it was reported alignment was satisfactory. There were small osteophytes seen at several levels below L3 associated with moderate disc space reduction.
111 Mr Ngo organised a CT scan of the lumbar spine in July 2009.
112 It was reported there was posterior annular bulging of the L3‑4 and L4‑5 intervertebral discs, and prominent left posterolateral margin osteophyte formation at L5‑S1 with associated narrowing of the exit foramen. Those appearances had not altered significantly since the previous examination on 9 August 2004.
113 There was a CT scan of the lumbosacral spine organised by Dr Gunawardana in October 2010. It was reported there was a broad-based disc bulge at L3‑4 and L4‑5 disc spaces, causing flattening of the thecal sac. There was spondylosis at L5‑S1 level, with a prominent left side osteophyte formation causing severe narrowing of the left neural foramen and a suggestion of pressure on the left exiting L5 nerve root.
114 Further CT scans were organised by Dr Gunawardana in October 2013 and November 2013.
115 The most significant finding was the presence of a large extruded disc fragment arising from the posterior aspect of L2‑3 extending superiorly beyond the midpoint of the L2 vertebral body.
116 Mr Maartens organised an MRI scan of the plaintiff’s lumbar spine in December 2013. The relevant finding was a L3‑4 broad-based disc bulge leading to marked spinal canal narrowing and contacting the exiting left L3 nerve root. At L2‑3, there was a paracentral disc extrusion which extended superiorly for 1.3 centimetres and caused right subarticular recess narrowing, displacing the right traversing L3 nerve root.
117 Dr Gunawardana arranged a CT local anaesthetic injection in February 2014.
118 Mr Maartens organised an MRI scan of the lumbar spine in December 2014. It was reported there was posterior displacement of the budding left S1 nerve root in the subarticular recess at L5‑S1 secondary to the left lateral disc protrusion. There was no gross neural foraminal stenosis at any level, and no evidence of central canal stenosis at any level.
119 Dr Gunawardana organised a CT scan of the plaintiff’s cervical spine in December 2015.
120 It was reported there were prominent localised degenerative changes present on the left posterolateral margin of the L5‑S1 disc level with prominent lateral marginal osteophyte formation and associated left posterior protrusion of the L5‑S1 intervertebral disc. Those features were causing some compression of the adjacent thecal sac and left S1 nerve root. It was noted if this corresponds with the level of the patient’s symptoms, then it would be amenable to a CT‑guided epidural injection of steroid and local anaesthetic if required.
Medico-legal evidence
121 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff in January 2017.
122 The plaintiff complained to Mr Brownbill of low back pain that was present all the time, with fluctuations sometimes being very severe. He had left leg pain going down the side of the thigh and calf to the top of the foot, present all the time, with fluctuations, and not helped by surgery. He also had a burning pain in the front of his left thigh, which he was unsure when it started, but it comes and goes.
123 Examination showed restriction of thoracolumbar spinal movements with absence of the left ankle reflex.
124 Mr Brownbill thought that in the incident, the plaintiff sustained aggravation of pre-existing degenerative changes, giving rise to back pain and, by nerve root irritation, left leg pain.
125 Mr Brownbill considered in the future the plaintiff should avoid activities involving heavy lifting, forced spinal mobility, repeated bending, or prolonged sitting or standing. He thought the plaintiff would not be able to return in the future to his described pre-injury employment.
126 Noting the described ongoing back and left leg pain, with activity exacerbation and demonstrated multi-level lumbar spine degenerative changes, with his work experience having always involved heavy physical activity, Mr Brownbill considered it likely the plaintiff would not be able to continue with employment for which he was suited in an ongoing or reliable fashion. If he were able to find employment avoiding the activity restrictions referred to, the number of hours the plaintiff could work would be dictated by his progress.
127 Mr Kenneth Brearley, general surgeon, examined the plaintiff in February 2017.
128 The plaintiff told Mr Brearley his symptoms are gradually worsening. There was some radiation of back pain down the left leg to the toes, present most of the time, as was back pain.
129 The plaintiff advised he was quite unfit for any work because of his back pain, noting his employment had been always driving trucks or fitting tyres, and he certainly could not do that type of work now. Further, he could not sit long enough to do a sedentary job.
130 On examination, there was marked restriction of lumbar movements, and generalised tenderness. The deep reflexes were present but weak, and sensation was normal. Straight leg raising was 70 degrees on the right and 50 degrees on the left.
131 Mr Brearley diagnosed mechanical lumbar back pain and left leg pain resulting from damage and prolapse of the L2‑3 intervertebral disc and aggravation of pre-existing degenerative changes, particularly at L5‑S1. He noted that unfortunately, symptoms have to a large extent continued since the surgery.
132 Following the very specific incident injury there had been a serious deterioration of the plaintiff’s condition, with ongoing low back pain and also intermittent but frequent left leg pain. As a result, Mr Brearley thought the plaintiff was quite unable to do any work.
133 Mr Brearley noted the plaintiff is accustomed to doing heavy work only, and in particular tyre-fitting. He has no experience at all in office or administrative type work, and there is no work which would be suitable for him, given his chronic low back pain. Mr Brearley did not think the plaintiff would be able to work again in the future and was not suitable for rehabilitation or retraining.
134 Mr Brearley commented there was no work which would be suitable for the plaintiff either part time or full time. He thought the plaintiff completely incapable of any work. The plaintiff could not work within restrictions because of the severity of his back condition. Certainly, in Mr Brearley’s view, the plaintiff was not suitable for rehabilitation or retraining.
135 Dr Joseph Slesenger, specialist occupational physician, examined the plaintiff in April 2017.
136 The plaintiff then described ongoing lumbar spine pain at a level of five to six out of ten, and occasionally to eight. He described the pain as being pulsating, sharp, and a background ache. His leg pain was similar. There was a tingling in his left leg and it was prone to collapsing.
137 The plaintiff described a sitting and standing tolerance of 20 to 30 minutes, walking on even ground for 30 to 40 minutes, and driving between 20 to 30 minutes. He advised his symptoms were variable and unpredictable, sometimes aggravated by activity, but at other times, could deteriorate spontaneously. On the whole, he had more bad than good days.
138 On examination of the lumbar spine, there was tenderness and restriction of movement. The plaintiff walked with a mild left-sided limp, using a walking stick in his left hand.
139 Dr Slesenger diagnosed mechanical injury of the lumbar spine, aggravation of degenerative disease of the lumbar spine resulting in surgery, and chronic lower back pain with left radicular symptoms and evidence of radiculopathy.
140 Dr Slesenger thought occupational exposures in the form of the 2004 fall, the incident injury, and the general manual handling requirements of the plaintiff’s job, were a plausible cause of the impairment and remained a significant contributing factor to his current incapacity and disability.
141 Taking into account the plaintiff’s current symptoms, his functional limitations, his age of fifty-five, his residential location of Doveton, the unpredictable nature of his residual impairment and disability, his past employment history, his qualifications and his computer skills, Dr Slesenger had reservations about the plaintiff returning to work as suggested by HealtheWork in its March 2017 report. He noted the plaintiff’s current level of symptoms, his functional limitations, and the unpredictable nature of his symptoms were relevant in this regard.
142 Dr Slesenger thought the plaintiff could not do his pre-injury role as a tyre fitter, quoting the manual handling and postural requirements of this role.
143 In Dr Slesenger’s view, the plaintiff could not return to work as a service provider, tyre/auto field, as the job would require inspecting vehicles, thus requiring him to stand for prolonged periods, and bend and squat while doing so. Further, the job would require good computer skills, and, whilst the plaintiff has experience in tyre fitting, he does not have experience in general auto repairs or bodywork.
144 Dr Slesenger thought the job of a donation sorter would require sorting of clothes, receiving, packing, and racking of stock and involve manual handling outside the plaintiff’s limits.
145 Further, the job of a recycle attendant/weighbridge officer was likely to require computer skills and also prolonged standing, and may require the plaintiff to climb in and out of trucks to inspect them. He may also be required to operate a console. Dr Slesenger noted the plaintiff has no experience in this role, and the postural demands are likely to be outside his capacity. Further, manual handling is likely to be required.
146 As a storage consultant, the plaintiff’s job would include administrative tasks including EFTPOS, computer, and would also require inspection of storage areas that may require him to stand for prolonged periods and to bend and twist while carrying out inspections. Dr Slesenger noted the plaintiff does not have experience with this role, nor does he have the necessary computer skills.
147 Dr Slesenger considered the plaintiff would not be able to work as a sales assistant, as the job tasks are likely to require manual handling of incoming deliveries or customer purchases that are likely to be outside his capacity.
148 Dr Slesenger noted work as a spare parts interpreter would require the plaintiff to access computerised databases, prepare invoices, and pack and despatch ordered parts. He thought the job tasks are likely to lie outside the plaintiff’s capacity, and the postural demands would also pose a problem.
149 Dr Slesenger noted the job of service adviser involves customer service in the service department of a motor vehicle dealership. This would require overseeing a team of advisers and mechanics. The plaintiff has demonstrated no capacity to manage teams of autoworkers. He has no experience in general auto repair, and is limited to tyre fitting, and he does not have the appropriate computer skills.
150 The job of an information clerk would require the plaintiff to access information about products via a computer database, to communicate with members of the public, and to respond to written or telephone enquiries. He has no experience in this role and lacks the necessary computer skills.
151 As a ticket collector/usher, the plaintiff is likely to be required to stand for prolonged periods and also likely to be required to clean the theatre. He also may be required to receive incoming deliveries and restock storage areas. He has got no experience within this role.
152 The job of a mail clerk would require manual handling of bags of letters and other deliveries and was likely to be outside the plaintiff’s capacity.
153 Work as a filing clerk would require the plaintiff to access databases and storage areas to access documents and files. He may be required to repetitively bend and twist while working in the filing records area. He may be required to manually handle boxes of file documents which may be outside his capacity. He does not have any experience in this job, nor any computer skills.
154 Dr Slesenger thought the plaintiff should be referred to a pain specialist to consider whether he is a candidate for a more holistic approach to his impairment and stability.
The Defendant’s medical evidence
155 Mr Matthew Hope, orthopaedic surgeon, examined the plaintiff in September 2015.
156 The plaintiff then reported lower lumbar back pain, predominantly left sided, rated as four out of ten at rest. It was associated with numbness in the back, or burning sensations in the left leg.
157 At that stage, the plaintiff reported he was not working at his full capacity, although completing full duties. Lifting gear had been provided and had helped, and he avoided any heavy lifting. He experienced back pain when bending.
158 Mr Hope thought the continuation of physiotherapy was unlikely to affect the plaintiff’s eventual outcome.
159 Mr Hope diagnosed lumbar degeneration and intervertebral disc disease requiring L5‑S1 left nerve root decompression.
160 Mr Hope noted the plaintiff had returned to full duties but not full hours. He thought it likely the current hours would be required to be maintained, in view of the fact the plaintiff felt he was not functioning at 100 per cent.
161 Given the nature of the plaintiff’s pre-existing disease, recent injury, and the requirements of his occupation, maintenance at the current hours would be appropriate. Mr Hope thought increasing hours was likely to result in increasing symptoms and likely to be detrimental to the plaintiff’s ongoing ability to maintain work.
162 Mr Hope noted a return to work program indicated by 31 August 2015 the plaintiff would be completing 20 hours, five hours over four days, with no work on Wednesdays. He had progressed beyond that to complete work on five days a week.
163 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff in December 2015.
164 The plaintiff reported his back was uncomfortable and sore. He had pain down both legs, and a hot feeling in the right foot. His legs ached intermittently. He acknowledged the left-sided sciatica had disappeared after the surgery but now seemed to be recurring. He had good and bad days, and recently had a week off work. His only medication was the occasional Panadol.
165 On examination, there was moderate restriction of thoracolumbar movements, with definite spasm. There was 2 centimetres of wasting on the left thigh. Both ankle reflexes were inactive.
166 Mr Shannon thought the prognosis was the back would be vulnerable to further injury.
167 Mr Shannon thought the clinical findings would certainly be consistent with a lumbosacral disc prolapse and radiculopathy. As the examination was for the purposes of an AMA assessment, he did not comment as to the plaintiff’s work capacity.
168 Dr Dominic Yong, occupational physician, examined the plaintiff in March 2017.
169 The plaintiff then complained of constant low back pain. His left leg felt weak. He felt he had a hot feeling in his upper leg, and numbness and ache in his foot. He was not taking any medication.
170 The plaintiff told Dr Yong he had to vary his posture regularly between sitting and standing. He walked for 30 minutes with a walking stick when out of the house, and could drive for 30 minutes.
171 Dr Yong thought there was the presence of lumbar dysfunction with a reported increase in symptoms, including having had a fall. In his view, the plaintiff required further assessment, including an MRI scan of the lumbosacral spine to exclude a recurrent neuropathic condition.
172 Dr Yong considered the work-related injury has not ceased, and still requires further investigation and treatment.
173 Dr Yong thought the plaintiff would have the capacity to perform the jobs suggested in the AMS of 13 July 2015[59] within the following restrictions:
[59]See paragraph 183 of this Judgment
· avoid repeated bending and twisting to the back
· avoid repeated firm pushing or pulling tasks
· vary posture regularly between sitting, standing, and walking
· avoid lifting more than 3 kilograms on a repeated basis; and
· reduction in working hours.
174 In this regard, the following factors were relevant:
· the current diagnosis
· the period of time since surgery
· the requirement to have further investigations
· the requirement to be as active as possible within the limit of pain while having further scans; and
· the ability to work restricted duties and hours until employment was terminated in January 2016.
175 Dr Yong thought the job of sales assistant would require individual assessment to determine if it complied with the recommended restrictions. He did not think work as a spare parts interpreter was suitable for the plaintiff, nor was the job of mail clerk.
176 In Dr Yong’s view, the service adviser/information clerk, ticket collector/usher, and filing clerk roles would be suitable.
177 Dr Yong provided a supplementary report dealing with the jobs suggested in the March 2017 vocational report.
178 Dr Yong noted the job of service adviser required minimal manual handling and complied with his recommendations, and would be considered suitable.
179 Dr Yong thought the donation sorter job would require individual assessment. He considered the role of a recycle attendant/weighbridge officer was suitable, as was that of a storage consultant.
180 Dr Yong thought a graduated return to work program was indicated. This would initially involve working reduced hours such as three-hour shifts, three days a week. The initial aim would be to return back to working hours at the time of ceasing employment, namely five-hour shifts for five days. The aim would be for that to happen over three to four months, then the plaintiff would require reassessment, and he could have the further investigations that were necessary.
Treaters
181 Mr Maartens wrote to Dr Gunawardana in June 2014 advising that the plaintiff had been asymptomatic for a fortnight before the proposed surgery and as such the surgery was cancelled or at least delayed.
182 The notes from the Doveton Medical Centre indicate the plaintiff attended six times with back complaints following termination of his employment in February 2016.
Vocational evidence
183 An NES vocational report of 13 July 2015 identified suitable employment options in order of priority as follows:
· sales assistant ($908 per week)
· spare parts interpreter ($1,087 per week)
· service adviser/manager (no figures)
· enquiry/customer service officer/ desk clerk ($1,077 per week)
· ticket collector or usher ($833 per week)
· mail clerk ($925 per week)
· records clerk ($1,214 per week).
184 Mr Janides, vocational/occupational rehabilitation consultant from Healthe Work provided a vocational labour market analysis report of 10 March 2017.
185 When interviewed, the plaintiff reported his pain level at seven out of ten. He had a standing and sitting tolerance of half an hour. He walked slowly, and bent and squatted with care. He drove locally. He was not then taking any medication.
186 The plaintiff agreed that his reading, writing and speaking skills were above average, and his computer skills were below average.
187 Mr Janides noted the plaintiff’s current transferable skills were in tyre fitting/auto, communication, computers, supervision/management, customer service, admin/clerical and trade skills.
188 The following jobs were suggested as suitable for the plaintiff:
· service adviser, tyre/auto field ($50 to $60,000 per annum)
· donation sorter (an hourly rate of $21 to $31.37, or $39,324 to $63,744 per annum)
· recycle attendant/weighbridge operator ($18 to $22 per hour)
· storage attendant ($21 to $26.08 per hour).
Overview
189 As counsel for the plaintiff submitted, by conceding pain and suffering, indirectly the defendant has acknowledged that the plaintiff suffers ongoing back and left leg pain and that the consequences of his lumbar impairment are more than significant or marked.[60]
[60]T100
190 It is difficult in those circumstances for the defendant to argue that the plaintiff’s pain is not significant, relying on his lack of medical treatment and medication and be critical of the plaintiff’s failure to seek further treatment from Mr Wong after the surgery had been of little assistance.[61]
[61]T83; T109
191 The issue in dispute is simply whether the plaintiff can establish the requisite loss of earning capacity of 40 per cent on a permanent basis.
192 Whilst pain and suffering was conceded, there were some credit issues raised by counsel for the defendant in terms of the plaintiff’s motivation to return to work and his real capacity for suitable employment.
Credit
193 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[62]
“… 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.”
[62](2010) 31 VR 1 at paragraph [12]
194 It was submitted by counsel for the defendant the plaintiff had the capacity to embellish, saying the first thing that came into his head rather than think about the question and answer in a truthful and proper fashion. There were many times when the plaintiff wanted to tell the Court something completely different rather than answering the question.[63]
[63]T85
195 It was submitted the plaintiff always had some excuse for propositions that were put to him and that he knew full well he was not answering the questions he was asked, and acknowledged that was the case.[64]
[64]T94
196 Particular examples relied upon were the plaintiff’s evidence as to why he ceased voluntary work with the Salvation Army and also, as to the cancellation of surgery by Mr Maartens.
197 Counsel for the plaintiff accepted there were a number of occasions when the plaintiff’s answers did not directly respond to the question asked, but it was submitted that was not a credit point. The plaintiff was cross-examined for about two hours and it was hardly surprising during that time he felt under attack and wanted to say something to defend himself, which was often the case with plaintiffs. However, that did not mean the plaintiff was dishonest or exaggerating.[65]
[65]T99
198 Counsel for the plaintiff also submitted that the plaintiff should not be regarded as an embellisher, trying to overstate his symptoms or disability. This was not suggested by any doctor. Further, the index to the Defendant’s Court Book referred to surveillance which was undertaken, but no film was shown. In those circumstances, an inference should be drawn that the film would not have assisted the defendant’s case.
199 It was also submitted the plaintiff’s effort to continue working for about two and a quarter years after the injury was impressive, and entirely inconsistent with him being an exaggerator or a person trying to maximise any return from his injury. Quite the contrary, despite his injury, the plaintiff just wanted to keep working.[66]
[66]T100
200 In my view, the plaintiff was a truthful, although somewhat anxious witness. His lack of response to some questions did not indicate a lack of candour on his part but a nervousness being in the witness box. I consider the plaintiff is a motivated, hardworking man whose work ethic was clearly demonstrated by his attempts to continue work post injury and also after the surgery.
Loss of earning capacity
201 In addition to satisfying 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).
202 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.
203 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
204 “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.
205 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.
206 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.[67]
[67]Barwon Spinners & Ors v Podolak (supra)
207 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect. The parties agreed the “without injury” earnings figure is $928.00, 60 per cent of which is $556.00.
208 The plaintiff’s case is that he has no capacity for suitable employment. If that was not accepted, it was submitted the Court should not be satisfied the plaintiff has the capacity to work more than nine hours a week as Dr Wong opined.[68]
[68]T112
The Plaintiff’s view of his work capacity
209 The plaintiff does not consider he has the capacity to return to work because of his chronic back and left leg pain and related restrictions. His skills are limited, having worked predominantly in tyre fitting work. He struggled whilst even performing modified duties. Further, his back pain is unpredictable, thus making him a potentially unreliable employee, as Mr Brownbill confirmed.[69]
[69]T104
210 The plaintiff’s views as to his ability to perform the jobs suggested by HealtheWork discussed later.[70]
[70]Paragraph 242 of this Judgment
Treaters’ views
211 Whilst it is unclear why, following examination stated to be on 7 March 2016, Dr Gunawardana set out in the MLC Total and Permanent Disability Claim Form of June 2016 that the plaintiff was unable to ever return to any gainful employment and in a WorkCover certificate, relating to that examination, he certified the plaintiff was fit for work five hours a day, five days a week,[71] since at least July 2016, Dr Gunawardana has considered the plaintiff does not have a capacity for suitable employment as he confirmed in his April 2017 reports.[72]
[71]T78
[72]T110
212 I accept that the general practitioner’s current opinion should be given considerable weight given his extensive and long involvement with the plaintiff.[73] Leave was not sought to cross-examine Dr Gunawardana to clarify any uncertainty about his certificates.
[73]T110. In his July 2016 report, Dr Gunawardana stated the plaintiff will never be able to work
213 Whilst some criticism was made by counsel for the defendant as to the lack of a path of reasoning in Dr Gunawardana’s reports explaining his conclusion that the plaintiff is now totally disabled having not worked since January 2016 and being certified fit for modified duties at that time, [74] I accept that the plaintiff’s condition has progressively deteriorated as counsel for the plaintiff submitted.[75]
[74]T80; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
[75]T105; T126
214 It was apparent from November 2015 that the plaintiff’s condition was deteriorating when he told his general practitioner he could only work for 45 minutes.[76] He was not, in fact, managing well at work until he ceased in January 2016, as supported by a number of the clinical entries up to December 2015.[77] His job was a made up one of part-time modified hours, indicated by the letter of termination in which the defendant advised that those duties were no longer available to him and there was no other suitable work available.[78]
[76]T108
[77]T102
[78]T103
215 By the end of 2015, the plaintiff just was not able to cope working any more than five hours, five days a week, and in those circumstances, the following year, Dr Gunawardana certified him totally unfit for work.[79]
[79]T108
216 The plaintiff continued to attend his general practitioner complaining of back pain during 2016 as the notes indicated.
Medico-legal evidence
217 Whilst Mr Brownbill and Mr Brearley did not specifically assess the suggested jobs,[80] they both considered the plaintiff has no capacity for suitable employment, given his ongoing back and left leg pain and his limited work experience having always been involved in heavy physical activity.[81]
[80]T91; T93
[81]T111
218 Having carried out an assessment of all the suggested jobs, Dr Slesenger thought they were unsuitable for the plaintiff for a variety of reasons.
219 Whilst counsel for the defendant criticised Dr Slesenger’s opinion on a number of grounds,[82] his view that the suggested jobs were unsuitable for the plaintiff was explained clearly and comprehensively.
[82]T91; T93
220 Having considered the suggested jobs, Dr Yong noted the job of service adviser required minimal manual handling and complied with his recommendations, and would be considered suitable as would the role of a recycle attendant/weighbridge officer and a storage consultant. The donation sorter job would require individual assessment
221 In relation to the suitable roles, Dr Yong thought a graduated return to work program was indicated, commencing with three-hour shifts for three days, hoping to get to 25 hours, being the working hours at the time the plaintiff’s employment ceased.
222 Importantly, Dr Yong never actually said the plaintiff could go back to full-time work, nor that he could go back to working 25 hours. No doctor, in this case, is currently of the view the plaintiff is able to work 25 hours per week.[83]
[83]T99
The plaintiff’s capacity for the suggested suitable jobs
223 Counsel for the defendant submitted the plaintiff had simply not looked for work despite agreeing with Mr Janides from HealtheWork that he had a number of transferable skills.[84]
[84]T83
224 Counsel for the plaintiff submitted that all factors set out in s5 of the Act as to suitable employment weighed against any of the jobs proposed by the defendant as being suitable.[85]
[85]T113
225 As s5 sets out, suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to the following—
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker’s pre-injury employment;
(iii) the worker’s age, education, skills and work experience;
(iv) the worker’s place of residence.
226 It was submitted the fact that the plaintiff could do one or more of the aspects of the physical aspects of a particular job did not, of itself, mean the job became suitable employment. This was the case with a number of suggested jobs. One must consider the entirety of the applicant’s relevant personal circumstances and not just focus on the particular physical tasks of generic jobs.[86]
[86]T114; Ashley JA said in Richter v Driscoll (supra)
227 Counsel for the defendant submitted, at the very least, the plaintiff could do the service adviser job in the tyre field, for which retraining was very limited – a computer course costing $214. It was submitted there were no earth-shattering skills or earth-shattering tasks to be performed in that role, and they were pretty straightforward.[87]
[87]T84
228 Sixty per cent of either figure in the suggested range of salary for this role – $50,000 or $60,000 – exceeded the threshold.[88]
[88]T90
229 Further, it was submitted the plaintiff could do the job of a warehouse manager or 2IC, and that there were no qualifications required for that role.[89]
[89]T93
230 Counsel for the plaintiff submitted these roles were unsuitable for the plaintiff in a number of respects. The plaintiff’s demeanour was relevant to whether he could do jobs of this nature requiring people skills. It was submitted the plaintiff presented as an unsophisticated man with limited interpersonal and communication skills and who, on any view, had always been heavily reliant on his physical fitness and skills for his employability.[90]
[90]T101
231 The plaintiff had worked for thirty-seven years in his trade of a tyre fitter, and of his thirteen years with the defendant, more than twelve were on the shop floor changing tyres, and the balance was in the warehouse picking orders.
232 It was submitted that if the plaintiff had the capacity to move up to the office into an administrative or managerial role it would have happened years ago at some point in the thirty-seven years before he was injured.[91] The chances of it happening now are totally unrealistic because of his injury and the fact he does not have the appropriate capacity, skills or aptitude for that sort of promotion.[92]
[91]T101
[92]T102
233 Further, the plaintiff has never done any assessing and estimating damages and costs, ordering parts, liaising with external organisations, producing invoices, debt collection, and administrative tasks such as database management and maintaining customer information. He does not have the appropriate computer skills, nor could he acquire them by training. He lacks the interpersonal communication skills required for the job.[93] In addition work as a service advisor/warehouse supervisor involved standing and walking around the work site, which is a problem, given the plaintiff’s back pain and balance problems.[94]
[93]T116
[94]T117
234 Counsel for the plaintiff submitted that the HealtheWork report provided no evidence that such a job exists in the tyre industry or is available part time in that industry. This was the sort of generic information which Richter v Driscoll[95] said the Court had to be so careful about.[96]
[95]Supra
[96]T117
235 Further, it was submitted the two actual jobs that were described in the HealtheWork report were plainly unsuitable, as they required a knowledge of vehicle mechanics and repair which the plaintiff did not possess.[97]
[97]T118
236 In my view, these jobs involving administrative and management roles are not suitable employment for the plaintiff for the reasons advanced by counsel for the plaintiff.
237 Counsel for the plaintiff submitted the job of donation sorter was not suitable because of the plaintiff’s postural problems. There was no guarantee that he would only have to handle light items, and it was also a job that required good communication skills. In any event, Dr Yong did not think the role was suitable and the HealtheWork report described it as involving “physical demands”.[98]
[98]T120
238 In terms of the range of wage rates provided for this job, $39,324 to $63,744 or $21.00 to $30.37 per hour for a casual, counsel for the plaintiff submitted it was appropriate to look at the earnings of a part-time worker on casual rates. It would have to be assumed that when someone has never done the job before, they would come in at the lower end.[99]
[99]T120
239 It was submitted the role of weighbridge operator was unsuitable, as the plaintiff had no experience in that field, and it was not clear what sort of manual handling would be involved. Again, in the HealtheWork report, the notation that the worker would have to be able to cope with the “physical demands” of the job made it hard to conclude it was a very light job.[100]
[100]T121
240 The same comments were made in terms of the unsuitability of the job as a storage consultant.[101]
[101]T122
241 Taking into account all the evidence, given the plaintiff’s chronic back and left leg pain, his difficulties performing lighter work after the incident both pre and post surgery, the factors set out in s5 of the Act and the plaintiff’s presentation in the witness box of a relatively unsophisticated man as his counsel described,[102] I am not satisfied the plaintiff has the capacity to work in any of the suggested jobs or any other suitable employment where he would earn in excess of $556 per week on a permanent basis.
[102]See paragraph 229 of this Judgment
242 In these circumstances, I find the plaintiff has suffered the requisite loss of earning capacity of 40%.
243 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
244 Counsel for the defendant submitted the plaintiff had failed to discharge the onus under ss(g), because he had not availed himself of the computer course.[103]
[103]T96
245 I do not accept however that a $214 computer course would give the plaintiff the skills he needs to perform the suggested jobs involving database management, stock control on the computer and other related computer tasks. I accept there was simply no evidence that it was realistic or possible for the plaintiff to be trained up to do duties of this nature.[104]
[104]T114
246 Further, Mr Brearley commented specifically that the plaintiff was not suitable for rehabilitation or retraining.
247 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 the plaintiff 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, the plaintiff has satisfied the requirements of s134AB(38)(g).
248 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
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