Deng v Victorian WorkCover Authority
[2021] VCC 1702
•4 November 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-20-00963
| YOUFEN DENG | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 July 2021 | |
DATE OF JUDGMENT: | 4 November 2021 | |
CASE MAY BE CITED AS: | Deng v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1702 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – s313(4) – application in respect of pain and suffering and loss of earning capacity – injury to low back – no dispute but that injury occurred – concession that plaintiff entitled to a certificate in respect of pain and suffering – referral of question of loss of earning capacity to Medical Panel – finding of Panel that plaintiff has capacity to engage in employment recommended in Recovre report – findings of Panel relate to certain specific employments identified in Recovre report – whether such findings extend to such occupations generically or should be restricted to certain sets of tasks – whether plaintiff then fails statutory test – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms J Frederico | |
| For the Defendant | Mr L Allan | Russell Kennedy |
HIS HONOUR:
(1)General background
1This matter comes before me by way of a dispute in relation to s313(4) of the Workplace Injury Rehabilitation and Compensation Act 2013 (hereinafter referred to as “the Act”). There is no argument concerning such matters as the occurrence of injury arising out of or in the course of employment, entitlement to statutory benefits, entitlement to a certificate pursuant to s335 of the Act in respect of pain and suffering and the like.
2Relevant issues have arisen in relation to the operation of s313(4) and of s325(2)(f) of the Act. Particular emphasis was placed upon the Opinion of a Medical Panel, the conclusive nature of such an Opinion, the method of calculation of earning capacity and the like.
3Mr J Mighell QC with Ms J Frederico of counsel appeared on behalf of the plaintiff. Mr L Allan of counsel appeared on behalf of the defendant. No oral evidence was called.
(2)Factual background
4The factual background against which submissions were made could be summarised as follows.
5According to the written submissions, the plaintiff is aged 41 years. She is a married woman, who came to Australia from China. In China, she had the equivalent of Year 6 or 7 schooling. She spent a number of years helping her parents at home and continued to stay at home after she married.
6Since coming to Victoria in 2008, she has only had two employments. For a very brief period of approximately two months, she worked as a sewing machinist on a factory line. She then obtained employment at the Best Western Airport Motel, essentially cleaning rooms, and continued in such employment until she suffered injury to the back in October 2014. That shall hereinafter be referred to as “the accident” and the injury sustained shall be referred to as “the injury”.
7Prior to the accident, the plaintiff worked for varying hours per day and varying days per week. She seems to have been paid according to the number and nature of rooms cleaned.
8Following the accident, the plaintiff was absent from work for approximately six months. She then returned to work and it is alleged that she continued to suffer from ongoing, grumbling low back pain. She then hurt her back again in March 2017, when she was moving a bed. Ultimately, she was forced to cease work because of her low back condition in December 2018.
9As stated, in broad terms liability has been accepted and serious injury for the purposes of pain and suffering has been conceded by the defendant.
10The remaining issue is of narrow compass. The question of loss of earning capacity has been the subject of consideration by a Medical Panel. A Certificate of Opinion has been forthcoming. This shall hereinafter be referred to as “the Certificate”. The meaning and application of it are at the centre of the ongoing dispute.
11Counsel for each party spoke to helpful written submissions by way of opening and subsequently in greater detail. Counsels’ addresses could be summarised as follows.
(3)The opening submissions on behalf of the plaintiff
12Essentially, the Medical Panel was asked to comment in relation to four jobs. These were as follows:
(a) factory process worker;
(b) packer;
(c) product assembler; and
(d) sewing machinist.
13If the Panel was of the opinion that any of those occupations constituted suitable employment within the meaning of the Act, it was asked for the number of hours and days per week that the plaintiff could engage in such work. The Panel expressed the opinion that employment as a factory process worker or product assembler, handling light weights, could constitute suitable employment if limited to five hours per day, four days per week. The Panel had been provided with a report from Recovre in which were details of the four jobs. As stated, the two jobs that were ultimately deemed appropriate for part-time work, and with the above restrictions, were that of the factory process worker and that of the product assembler.
14In relation to the job of the factory process worker, this was full‑time work in a factory at Broadmeadows. The salary was said to be $20.16 gross per hour and the work was full‑time for 38 hours per week. This salary would fall below the “60 per cent” threshold (there was no dispute as to this). The other job identified by Recovre was that of a product assembler. This job was in Laverton North on a full‑time basis of 38 hours per week. The salary is said to be $27.74 gross per hour. Each job was a particular job and assessed in excess of one year ago.
15The plaintiff has obtained a report from Flexi Personnel. It addresses the hourly part‑time rate for work as a factory process worker and product assembler under the relevant awards. The plaintiff’s pay records show that she had a “without injury” earning capacity of up to $799 gross per week, 60 per cent of which is $479.25. In the plaintiff’s submission, that figure represents the basis for calculation of the 60 per cent threshold.
16Using the evidence supplied by Flexi Personnel in respect of the part‑time award rate for either job, the plaintiff comes in under the 60 per cent threshold. By way of comparison, if the hourly rates for the specific jobs as set out in the Recovre report are adopted, the hourly rate for the process worker would be $20.16 and under the threshold. However, the equivalent figure for a product assembler would be $27.74 and above the threshold. This is assuming that the figure applies to both full time and part time employees.
17Interrupting this summary, I would repeat that there was no dispute but that the hourly rate for a process worker is under the threshold. Accordingly, it will receive no further attention. I return to the summary of the opening submissions on behalf of the plaintiff.
18There is no argument but that the plaintiff must accept the finding of the Medical Panel to the effect that she can work as a product assembler. However, the fairer and more appropriate basis for calculating the 20 hours’ work in such jobs is based upon the Flexi Personnel evidence. The Recovre report is referring to a full‑time job. It does not indicate what the hourly rate would be if the job were part‑time. It is also clear from the evidence that the rates of pay for this job vary. The Court should find that the most appropriate rate for the plaintiff performing the suitable employment would be at the lower end of the scale, given that she cannot speak English, has had minimal education and has a very narrow vocational history.
(4)The opening submissions on behalf of the defendant
19Mr Allan indicated in his opening submissions that there would be some subsequent expansion upon them.
20It is the “with injury” earnings figure that is critical.
21What the plaintiff is trying to do is to undercut the opinion of the Medical Panel, which is that the plaintiff can perform 20 hours’ work per week in the relevant job. The Recovre report was the only one before the Panel. The job under discussion is that which the Panel considered and endorsed, namely the position of a product assembler. The question involved becomes not what the plaintiff could earn in some other product assembler role, but what she could earn in the role that the Panel has endorsed. The only evidence in this regard is that contained in the Recovre report. The operation of s313(4) of the Act requires the Court to adopt and apply the Opinion of the Panel and that essentially puts to rest the argument now sought to be made by the plaintiff. Alternatively, if it becomes a contest between the Flexi Personnel report and the Recovre report, the latter provides far better, and far better quality, evidence of the wage rate in the job endorsed by the Panel. The Flexi Personnel report is just a recitation of award rates with no analysis and no specific jobs mentioned. What the plaintiff is attempting to do might be creative, but it cannot get around the effect of s313(4). If it does come down to a contest between the reports on their merits, the plaintiff’s claim for loss of earning capacity consequences must fail.
(5)Further arguments based upon the written submissions
(a) The further submissions on behalf of the plaintiff
22The further submissions, expanding upon the written submissions on behalf of the plaintiff, could be summarised as follows.
23It would not be appropriate for the Court to determine the hourly rate for part‑time employment based upon a rate that is seemingly for a full‑time job. Attention will be focussed upon the job of product assembler, which is, in essence, the only remaining suitable option contained in the Recovre report.
24In the Recovre report, the hourly rate is one for a particular full‑time job at particular premises. It is suggested in the defendant’s submissions that the Medical Panel has considered that particular job. That is not open on the evidence. The Panel was asked to provide an Opinion addressing four separate types of employment. The question of suitability asked the Panel to address the generic, rather than the specific. This cannot be interpreted as meaning that the Panel is solely basing its opinion on that particular job at that particular location. The Panel specifically stated that it considered that the plaintiff was capable of undertaking light product assembly. The word “light” does not appear in the job description in the Recovre report.
25Secondly, it was not said by the Panel in its Opinion that it considered the plaintiff to be capable of undertaking two specific jobs identified at specific pages of the Recovre report. It is clearly a reference to a generic job description.
26Thirdly, consideration of the remuneration was not part of the issues addressed by the Panel. That is a matter for the Court. The evidence of the plaintiff is that, prior to the injury, she had a capacity to work up to seven days per week and now has a capacity for no more than 20 hours per week. Further, an inability to speak English, a limited vocational history and poor education ordinarily result in a person entering employment at a lower rate of pay, rather than a higher rate of pay. In relation to the possible job that is in issue, being the product assembler, it requires completion of an Engineering Production Certificate I and Engineering Certificate II or the equivalent thereof. Examples of the Certificates are contained in the Plaintiff’s Court Book. The Court should be satisfied that the plaintiff is unlikely to obtain such Certificates. This does not displace the decision of the Medical Panel, but lends weight to a finding that, if there is a variation in hourly rates for the plaintiff, it would probably be towards the lower end of the range. The hourly rate set out in the summary of the Recovre report identifies what are presumably weekly rates, which do not accord with the hourly rates contained in the report. It is clear by a simple mathematical calculation that the figures do not tell the precise story. There are variations in pay rates.
27The earning rate for a full‑time job has been used in the situation where the Panel states that the plaintiff can only work part‑time. This would require the Court to infer, without supporting evidence, that a part‑time rate is the same as a full‑time rate, when it has already been demonstrated that a part‑time rate is different. The only source of evidence in relation to the part‑time rate is that which is provided by Flexi Personnel.
28I might add that I raised with Mr Mighell the question of whether the material contained in the body of the Opinion of a Medical Panel forms part of the Opinion or whether the Opinion is confined to the conclusions which have been reached and which are usually set out on the opening page or pages of such Opinion. Mr Mighell expressed the view that the Opinion is as set out in the Certificate and cannot be narrowed by the addition of words such as “Product assembler as described in the vocational report”. The issue in reality is whether the Opinion is confined to the medical questions and answers usually set out at the commencement of the document or whether it extends to other matters contained in the document itself. In the document itself there are normally numerous comments, including discussion of the presentation of the plaintiff during the interview.
(b) Further submissions on behalf of the defendant
29The further submissions advanced by Mr Allan on behalf of the defendant could be summarised as follows.
30In relation to the issue which I raised with Mr Mighell, Mr Allan submitted that the “opinion” referred to in s313(4) is the Certificate of Opinion with the numbered questions and answers. These are then required to be adopted and applied by the Court pursuant to s313(4). Mr Allan referred to the decision of Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35. In particular, he referred to paragraphs [57] to [59] of that judgment. Effectively, the Court of Appeal contemplated that the Reasons might be admitted in a situation where the answers to the questions required context or were ambiguous, or if the Panel’s Reasons contained admissible opinion evidence about a fact in issue. It is the submission of the defendant that both sets of circumstances would apply in the present case. There is a dispute as to whether the Panel is referring to the job in the Recovre report or to such positions in the broad. The Reasons contain admissible evidence about a fact which is in issue, being the plaintiff’s capacity to perform the job in question. There is no doubt that, when the Panel stated that the plaintiff could do the job of product assembler, it was referring to the job in the Recovre report.
31The Recovre report was the only vocational document before the Panel that described the job. Further, the Reasons are replete with references to the vocational assessment or the vocational report and refer very clearly to the Recovre report. Importantly, the Panel did not express any doubts as to whether the plaintiff was capable of performing certain aspects of the positions in question. She could or might be capable of a different role within the same general category of job. The Panel stated that, from a physical point of view, the plaintiff could do those jobs, albeit for a limited number of hours per week. The bottom line is that the Panel has provided an Opinion to the effect that the two roles, and specifically that of product assembler, constitute suitable employment for the plaintiff on a part‑time basis. This must be adopted and applied by the Court.
32In her written submissions, the plaintiff states that the job identified in the Recovre report are specific jobs. There is reference to the suburbs in which jobs are located. The jobs considered by the Panel are both full‑time positions. The plaintiff asserts that there is no evidence that the job of product assembler is available on a part‑time basis and that the Court should not assume that the hourly rates identified are applicable to part‑time employment.
33The defendant submits that it is irrelevant whether a particular position is available. Reference is made to the definition of “suitable employment”. The Panel has stated that these positions, on a part‑time basis, do constitute suitable employment. Such finding carries with it the connotation that the positions, and particularly that of a product assembler, exist and that they represent suitable employment. The issue as to whether an individual job is presently available is not relevant. Reference is made to s3(1) of the Act. It is the opinion of the Panel that such jobs do constitute suitable employment. The issue of whether a particular job is available is not to the point, having regard to the definition of suitable employment. The Panel does not have to move on to the calculation of figures.
34The defendant’s primary argument is that the Panel has stated that the plaintiff can do this job. The question then becomes one of evidence of the relevant wage rates. The only evidence of the wage rates for the jobs endorsed by the Panel comes from the document that discusses such jobs – namely, the Recovre report. The plaintiff bears the onus. It is entirely unclear what the jobs postulated in the Flexi Personnel report are and in what ways they are similar to or different from the jobs endorsed by the Panel. What is contained in the Flexi Personnel report is simply a recitation of award rates, with no analysis of the relevant job.
35The Recovre report contains the wage rates for the jobs in question. The defendant submits the Flexi Personnel report is of no assistance to the plaintiff. Submissions in relation to the plaintiff’s non-English speaking background, limited education and the like, and that effectively she will be permanently only ever able to earn the award rate in question, leave a real evidentiary gap. It is not open to the Court to infer that, because someone is from a non-English speaking background and is of limited education, she will only ever earn award rates in a product assembler role. That should have been a matter for expert opinion evidence. The Flexi Personnel report does not indicate where the plaintiff is going to be on the pay scale. There is no other evidence in this regard. It is not a case where the type of job in question requires, for example, the use of computers. It is not a situation where the Court can take judicial notice of the proposition that the plaintiff is a person who will end up at the lower end of the pay scale. It is an impermissible leap from a proposition that certain factors exist to the conclusion that the plaintiff will only ever earn the award rate. No evidence of that nature has been led in the case. It is not something which can be simply inferred.
36The onus is upon the plaintiff to prove her case. She does have a capacity for suitable employment. It is not a case where there is no capacity. The onus is upon the plaintiff to establish that she will never earn sufficient amounts to go over the relevant threshold. The evidence falls well short of that. The Panel has answered questions and expressed opinions to the effect that the plaintiff has a permanent current work capacity for reduced hours and that such capacity is five hours per day, four days per week as a product assembler, handling light weights. The effect of that opinion is that the plaintiff will have a capacity for 20 hours of work per week in such role permanently. This opinion must be adopted and applied by the Court.
37Establishing what wage rate the plaintiff will earn for those 20 hours of work and of proving the requisite 40 per cent loss remain at all times the plaintiff’s onus. It is not sufficient to say simply that there are various issues in her background and here are the award rates. This should fall a long way short of satisfying the Court that the plaintiff will only ever be able to obtain those award rates and therefore will continue permanently to suffer the requisite 40 per cent loss. The work capacity is locked into 20 hours per week. The possibility of post-Opinion deterioration or improvement as a result of medical intervention cannot be taken into account. The Opinion of the Medical Panel is final and conclusive – see s313(4). If the Panel determines a capacity to work for a certain number of hours per week, that is locked in and it is then a question of mathematics, to which the burden of proof applies. The best evidence in this regard comes from the Recovre report. The Flexi Personnel report is unclear as to what sort of role is being discussed and how it differs from the role endorsed by the Panel, if at all. There is no expert opinion evidence as to whether certain factors would necessarily lead to the conclusion that the limit contended for is all that the plaintiff will earn.
38I addressed a question to Mr Allan as to a proposition put by Mr Mighell in his address. This related to whether the wage rate for a full‑time employee can be translated automatically to the wage rate for a part‑time employee by a simple mathematical calculation. Mr Allan submitted that, on the basis of the material put in evidence on behalf of the plaintiff, the wage rate for a full‑time employee on an hourly basis is the same as that for a part‑time employee. There is no distinction between the two. The burden of proof is on the plaintiff, and the evidence falls well short of making any link in the real world between the Flexi Personnel figures and the “disadvantage factors” to which reference has been made. The only way in which the plaintiff can succeed is to cut the figures in an extreme way to the absolute bottom end of the range in a situation where there is no evidentiary basis so to do. If the Court cannot be satisfied as to what the plaintiff would earn, she has failed to discharge her onus.
(c) The reply on behalf of the plaintiff
39The reply on behalf of the plaintiff could be summarised as follows.
40The Court should not look beyond the Certificate of Opinion of the Medical Panel. There is no provision for re-opening its Opinion. Reference is made to the decision in Sherlock v Lloyd [2010] VSCA 122.
41If the Opinion only is to be considered, that Opinion is that the plaintiff is fit for performing a specific occupation for 20 hours per week. It is not stated in the Opinion that the job or jobs in question are those specifically identified in the Recovre report. The Court is then left with the task of assessing what is the part‑time rate for such a job. The Court should not have to guess at this. The relevant opinion of Flexi Personnel, which is not challenged, is based upon an award and provides a part‑time hourly rate. It is not a matter of simply dividing the gross weekly earnings for a full‑time position by the number of hours worked on a part‑time basis. The Opinion of the Medical Panel is not that the plaintiff can do the specific job. The Panel is stating that the plaintiff can engage in that occupation, as evidenced by the fact that the plaintiff can only do it for 20 hours a week. It is not saying that the plaintiff could do the specific job identified in the Recovre report. The Panel is stating that the plaintiff can perform a generic occupation on a part‑time basis. The defendant has had the opportunity to provide the Court with part‑time rates for the occupation, but has chosen not to do so.
42In general terms, it is not contested but that the plaintiff was working six to seven days a week before the injury. The situation now is that the Medical Panel says that the most that she can work is 20 hours per week. Further, the question of the plaintiff’s earnings before the injury has been answered.
(d) The response on behalf of the defendant
43Mr Allan was given leave to respond briefly to the submissions of Mr Mighell. This response was as follows.
44The decision in Sherlock has been overtaken by cases such as Yirga-Denbu. The latter decision is the most recent on this subject and qualifies the decision in Sherlock.
45Further, the formula contained in the Act does not permit the type of analysis engaged in by the plaintiff. The formula is set out in the Act and it is one based upon a fair reflection of a plaintiff’s pre‑injury and post-injury earning capacity. It is not expressed in terms of hours. Further, the Recovre report quotes the gross average weekly wage for a product assembler at $997. Whether that figure is divided by either 38 or 40 hours, the plaintiff does not succeed.
(6)Ruling
46The contest in this case essentially centres upon four documents. These are the Act, and particularly s313(4); the Opinion of the Medical Panel; the Flexi Personnel report; and the Recovre report. I shall refer to each of these in turn.
47Section 313(4) of the Act reads as follows:
“For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel—
(a)is to be adopted and applied by any court, body or person; and
(b)must be accepted as final and conclusive by any court, body or person—
irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.”
48I turn now to the Certificate of Opinion of the Medical Panel, this being dated 17 May 2021. For the moment, I leave to one side the Reasons for Opinion.
49Question 1 of the Certificate relates to the plaintiff’s medical condition, this being directed to various parts of the plaintiff’s body and to her mind. The Answer of the Panel is to the effect that the plaintiff’s injury has aggravation of degenerative changes in the low back and lower cervical spine, in addition to chronic adjustment disorder with depressed mood as a consequence of chronic pain. In answer to Question 2, it expressed the Opinion that the medical conditions were likely to persist into the foreseeable future. Question 3 is directed to any spinal injury and excludes psychological or psychiatric consequences. It specifically asks as to whether the physical condition or injuries result in or materially contribute to the plaintiff having a current work capacity or no current work capacity within the meaning of the Act. The Answer of the Panel is as follows:
“In the Panel’s opinion, the Plaintiff’s persisting aggravation of degenerative changes in the lumbar spine and the lower cervical degenerative changes with referred pain materially contribute to the Plaintiff having a current work capacity for reduced working hours.”
50Question 4 presumes an answer of “Yes” to Question 3. It then inquires as to whether employment as a factory process worker, packer, product assembler or sewing machinist would constitute suitable employment within the meaning of the Act and, if so, for how many hours and days per week. The Answer of the Panel is as follows:
“The Panel is of the opinion that employment as a factory process worker and product assembler handling light weights would constitute suitable employment within the meaning of the Act, with the employment limited to five hours per day four days per week.”
51This was considered to be a situation that was likely to be permanent.
52Questions 6 to 11 are not applicable. Question 12 inquires as to whether the plaintiff has: (a) a current work capacity; or (b) no current work capacity as a result of or materially contributed to by any psychiatric condition or injury. The Panel in essence answered to the effect that the plaintiff has a current work capacity within the meaning of the Act.
53Question 13 presumes a positive answer to Question 12 and inquires as to whether employment in the same four positions as earlier mentioned would constitute suitable employment within the meaning of the Act and, if so, for how many hours and days per week. The Answer of the Panel is as follows:
“The Panel is of the opinion that employment as a factory process worker and product assembler handling light weights would constitute suitable employment within the meaning of the Act, with the employment limited to five hours per day four days per week.”
54Question 14 is not applicable. The above represent the relevant questions and answers.
55At this stage, I would make two observations concerning the Answers set out above. Firstly, insofar as suitable employments are concerned, they are, as Mr Mighell argued, generic in nature. Types of employment, as opposed to specific jobs, are set out. Two of the four apparently have been eliminated, leaving employment as a factory process worker or product assembler. However, the Panel has added some additional wording. The employment that is suitable is that of a factory process worker and product assembler “handling light weights”. That is in addition to the limiting of such employment to five hours per day, four days per week.
56I turn now to the relevant parts of the quite lengthy reports of Flexi Personnel and Recovre. Each has been the subject of some criticism by counsel.
57I shall deal firstly with the Flexi Personnel report. On 14 July 2021, the solicitor for the plaintiff affirmed an affidavit, which includes the assertions that Flexi Personnel was requested to provide the part-time gross hourly rate for someone employed in the position of a product assembler and that this was so provided. On approximately 5 July 2021, the solicitor emailed Flexi Personnel requesting the course details and requirements in relation to Engineering Production Certificate I or Certificate II in Engineering. Further investigations followed, which resulted in the solicitor being provided with full descriptions of Certificates I and II in Engineering, and these were exhibited to the affidavit. Further, the solicitor carried out a search of the appropriate Award and also obtained overviews of the courses relating to the Certificates. This material appears to complement or supplement the Flexi Personnel report.
58On 26 May 2021, Ms Mary Oliver of Flexi Personnel provided to the solicitors for the plaintiff a potential earnings report, detailing the current gross hourly part‑time rate for a product assembler. It was emphasised that the figure relates to a part‑time rate. The part‑time rate for a factory process worker employed on a permanent basis, and exclusive of any applicable penalties and allowances, was $20.41 per hour. The figure for a product assembler, provided on a similar basis, is $21.19 per hour. However, Ms Oliver pointed out that, according to the award, the minimum training required to work in this classification was the successful completion of an Engineering Production Certificate I, or a Certificate II in Engineering, or the equivalent. I might add that Ms Oliver set out in an annexure her education, background and training in relation to her position as a human resources consultant. Suffice to say that she has various qualifications and has been engaged in work of this nature for in excess of 20 years.
59After providing the above report, Ms Oliver was asked to provide details and requirements in relation to the Engineering Production Certificate I or Certificate II in Engineering. These are quite complicated and include such requirements as the ability to read and interpret routine information on written job instruction operating procedures and the like. There are further requirements in relation to Certificate II in Engineering.
60To a considerable extent, these considerations are irrelevant, as the Medical Panel has found that the suggested employment is suitable. However, it is indicative of some research and expertise on the part of Ms Oliver as a background to her report and her opinion as to the hourly rate payable for part‑time employees in the occupations of factory process worker and product assembler.
61The bottom line is that Ms Oliver has provided figures for part‑time employees in the relevant occupations and has emphasised by way of underlining that the hourly rates of pay set out are for part‑time employees.
62I turn now to the report from Recovre. It is dated 24 July 2020 and was completed by Ms Robyn Willett, Employment Placement Consultant, and Ms Janette Ash, occupational therapist and injury management consultant. They reported that the plaintiff has very limited skills in relation to suitable employment, but identified four work options for her consideration. Two of these were the jobs of factory process worker and product assembler, being the occupations considered suitable, on a part‑time basis, by the Medical Panel. As earlier stated, of these the occupation of factory process worker can be left to one side, because it is agreed that 20 hours’ work per week would be productive of a gross income which falls short of the required 60 per cent “cut off mark”.
63A large portion of the Recovre report is directed towards the duties involved in the four proposed occupations and photographs of some of these. Given the finding of the Medical Panel, for the purposes of the present application these are of little, if any, relevance.
64What is of relevance is that the job of product assembler referred to in the Recovre report is a real one located at Laverton. The hours of work are described as follows:
“Workers are employed on a permanent full time basis and are paid for 38 hours per week, though they work 40 hours with a rostered day off.”
65The salary is described as $27.7425 per hour. Whether there are any part‑time employees and, importantly, what their wage rate might be are matters which are not included in the report.
66I turn now to the fourth important document, namely the Opinion of the Medical Panel. The critical answer by the Medical Panel to the series of questions posed is that to Question 4. That answer has been referred to above, but I shall set it out again in full as follows:
“The Panel is of the opinion that employment as a factory process worker and product assembler handling light weights would constitute suitable employment within the meaning of the Act, with the employment limited to five hours per day four days per week.”
67Two important elements of that Answer are the handling of light weights and the restriction of hours worked weekly to twenty, on the basis of five hours per day, four days per week.
68There was some dispute as to the degree to which the Panel’s Reasons for Opinion can be taken into account, if at all. In the present case, the Reasons do not seem to me to take matters much further, even if they can be considered. Of possible relevance would be the fact that the Panel repeated that the two specific job roles which accommodated the suggested restrictions both involved full‑time work. The Panel considered that the plaintiff was capable of undertaking “light factory process work employment”, adding the following:
“… however, would only be able to perform these five hours per day four days per week with a rest day during the week, and because of fatigue and symptoms would not be able to perform them on a full-time basis.”
69The Reasons go on to state that:
“The Panel therefore concluded that the plaintiff has a current work capacity with the employment limited to five hours per day four days per week.”
70If the Reasons can be considered, and it seems to me probable that they can be by way of background to the Answers, they do not take matters much further. The “light” aspect of the factory process worker employment is again emphasised. Perhaps the only additional information that is spelt out is the breakdown of the 20 working hours per week so as to give a rest day during the week.
71One other matter which does not seem to be disputed is that the Panel had only the Recovre report before it in terms of job description, identification of duties and the like. In its Answers, and indeed in its Reasons, the Panel has not spelt out whether the factory process work as described in the Recovre report satisfies the “light” requirement specified in its Opinion. The Panel had before it a detailed description, along with photographs, of the factory process work undertaken at an establishment in Laverton. The Recovre report refers to this as offering to the plaintiff a light unskilled role. Whether that is a proposition with which the Panel agrees is not clear. It is not clear whether the Panel shared the opinion of the writers of the Recovre report that the work at Laverton constituted the handling of light weights. The Opinion of the Panel is more sweeping in nature, being simply that the work of a product assembler handling light weights would constitute suitable employment. Whether there is agreement that the tasks and duties described in relation to the Laverton job fall within the restrictions imposed by the Panel in its answer is not clear.
72Perhaps of more significance is the part‑time issue. The Panel has specifically qualified its Opinion by adding that the employment be limited to five hours per day, four days per week. There is no suggestion in the Recovre report that the Laverton job can be restricted to those hours and days. Of more importance again, the salary for product assemblers at Laverton is stated to be for those working 36 or 40 hours per week. Whether there is a different, and if so what, rate of pay for part-time workers is not mentioned.
73After the Medical Panel’s Opinion was obtained, the defendant had every opportunity to check on whether part‑time duties involving the handling of light weights were available at the Laverton premises, and, if they were, what the hourly rate of pay was for such duties. Alternatively, there could have been inquiries, via Recovre or by some other agency, as to what the rate of pay was for part‑time workers.
74On the other hand, the plaintiff has placed in evidence the comparatively current award rate of pay specifically for part‑time product assemblers. That is leaving to one side any issue of such employees being restricted to the handling of light weights.
75My finding is this. I prefer and accept the material tendered on behalf of the plaintiff, and particularly the evidence provided by Flexi Personnel. It is comparatively current. It is specifically directed at part‑time workers. The finding of the Medical Panel is that the plaintiff is only fit for part‑time work in a relevant occupation. The Flexi Personnel evidence sets out the award rate for such workers engaged on a part-time basis. The evidence tendered on behalf of the defendant, and particularly the Recovre report, apart from being somewhat old, relates to full‑time workers at a particular place of employment. There is no reference to part‑time rates of pay either at that place of employment or generally. Pursuant to s313(3) of the Act, the Answers provided by the Medical Panel are binding. The relevant Answer establishes a capacity for part‑time work only and specifies 20 hours per week. If one goes to the Reasons, there is the added requirement of a day off each week. The Panel has specified the type of work for which the plaintiff has a capacity, namely that of a part-time product assembler. The plaintiff’s evidence establishes what the award rate is for a part‑time product assembler. The defendant’s evidence does not address this. That leaves to one side the fact that the Panel specifically included the words “handling light weights”.
(7)Conclusion
76The plaintiff has the capacity to engage in employment as a part‑time product assembler for 20 hours per week, being five hours per day for four days (and with the possible addition of a day off intervening). As established by the Flexi Personnel report, the hourly rate for a part‑time product assembler is $21.19 per hour, a figure which I accept for the above reasons. This converts into the sum of $423.80 per week. There is no significant opposition to the proposition that the plaintiff’s “without injury” gross income is calculated at $799 gross per week or a figure so close to that as to make no different to the ultimate outcome. Sixty per cent of $799 is $479.25. Thus, a gross “with injury” figure of $423.80 falls well short of what could be described as the 60 per cent figure.
77As is evident, my decision is that the plaintiff has discharged the burden of proof in relation to loss of earning capacity. I would add that the other employment referred to by the Medical Panel as being suitable for the plaintiff on a 20 hour week basis was that of a factory process worker. Whichever way it is viewed, the salary for that occupation is lower than that for a product assembler. There was no argument but that the plaintiff would satisfy the 60 per cent requirement in relation to the occupation of a factory process worker.
78The plaintiff is successful. It had already been conceded that she satisfied the statutory test in relation to pain and suffering. Based on the above, and assuming that, as opened, the evidence in relation to loss of earning capacity is confined to what was put before me, she has also discharged the burden of proof in that regard. I shall hear the parties as to the orders that are required.
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