Dennis Sinclair v Airoad Pty Ltd
[2010] VCC 1428
•20 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES LIST
GENERAL DIVISION
Case No. CI-09-05911
| DENNIS SINCLAIR | Plaintiff |
| v | |
| AIROAD PTY LIMITED | Defendant |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27, 28 and 30 September and 1 October 2010 |
| DATE OF JUDGMENT: | 20 October 2010 |
| CASE MAY BE CITED AS: | Dennis Sinclair v Airoad Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1428 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION - s134AB Accident Compensation Act 1985 – claim in relation to pain and suffering and loss of earning capacity – permanent impairment of the plaintiff’s left lower limb – development of Complex Regional Pain Syndrome Type 1 – whether pain syndrome caused primarily by psychogenic factors – whether loss of earning capacity meets requirements of the Act.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ian R Fehring | Patrick Cash & Associates |
| Brent A Hutchinson | ||
| For the Defendant | C Miles | Herbert Geer Lawyers |
| HER HONOUR: |
Introduction
1 At the relevant time the defendant operated a freight business. Between 1999 and 2004 the plaintiff was employed by the defendant, for the first six months as a forklift driver and thereafter as the morning shift manager. He opened the premises and worked daily between 5 am and 2 pm supervising the arrival and departure of between 20 and 30 trucks and, when required the plaintiff performed various labouring tasks.[1]
[1] Plaintiff's Court Book ("PCB") 2.
2 It was common ground that on Thursday, 29 April 2004 the plaintiff suffered injury to his left foot whilst assisting others in the removal of a gate damaged by a delivery truck. The plaintiff described this incident in paragraphs 11 and 12 of his first affidavit, sworn 30 June 2009, in the following words:
“ 11. Malcolm Thorpe started to lift the gate and the other end of the gate started swinging. I was next to that end of the gate and, as there was a risk that the gate would swing into the warehouse and cause damage, without thinking I jumped onto that end of the gate to steady it. I was on the gate for a short period of time when the other end of the gate which was being worked on loosened from its lodging. With my weight on my end of the gate and the gate held by the sling in the middle, the gate acted like a seesaw and my end of the gate came crashing to the ground from a height of about 2 feet in the air and, after hitting the ground, sprang back into the air.
12 . When the gate hit the ground I was standing on the bottom rail of the gate with most of my weight on my left foot. When the gate hit the ground I immediately felt sharp pain in my left ankle and foot. ”
3 Apparently plain x-rays obtained on the same day and on 1 June 2004 failed to reveal any fracture or abnormality. However, when on 22 June 2004 the plaintiff presented with ongoing pain around the left heel, posterior, medial and lateral aspects of his left ankle as well as diffuse reddening, warmth and sweating in the left foot and ankle region, orthopaedic surgeon, Mr Lynch ordered a MRI scan of the plaintiff's left ankle and referred him to consultant physician, Dr Blombery to treat what he suspected was mild reflex sympathetic dystrophy ("RSD").
4 Dr Blombery has a specialist practice in vascular disease with a long-standing specialist interest in treating the pain disorder known as "Complex Regional Pain Syndrome", the current description for the constellation of symptoms previously referred to as RSD.[2] Apparently there are two Types of Complex Regional Pain Syndrome, Type 1 and Type 2. Type 2 requires the presence of a specific nerve injury, otherwise the diagnostic criteria is the same - "pain
which is in a non-anatomical distribution which is out of proportion to an injury. The second criteria is a history of or signs of changes in autonomic function in the affected part, which refers to changes in temperature, colour, sweating, et cetera, of the affected part, and where there is no alternative explanation for the symptom complex that the patient presents."[3]
[2] According to Dr Blombery the description was changed by the International Association for the Study of Pain in 1994 – TN127.
[3] Re-examination TN 123 and cross-examination TN108.
5 As it turned out Dr Blombery first examined the plaintiff on 9 July 2004, the day after the MRI scan had revealed a comminuted fracture of the talus, high- grade injury to the lateral collateral ligaments, small short segment split of the peroneus brevis tendon and tibialis posterior tenosynovitis.[4]
[4] PCB 35.
6 Accordingly, at that stage, notwithstanding the plaintiff's complaint of "ongoing
pain in the foot and ankle which fluctuated quite markedly from time to time. Some mornings, he said he was hardly able to walk and other days was able
to walk fairly reasonably. The foot became very warm and often swelled" and his observation that the plaintiff's foot was "also somewhat red in appearance", Dr Blombery felt that the injuries reported following the MRI scan were sufficient to explain most of the plaintiff symptoms.[5]
[5] PCB 41-42.
7 On 28 July 2004 the plaintiff underwent left ankle arthroscopic debridement. As his report submitted to the insurer on 8 September 2004 shows, despite this intervention, the treating surgeon, Mr Lynch nevertheless anticipated ongoing problems with the left ankle and subtalar joint in the long term.[6]
[6] PCB 33-34.
8 In late 2004 Mr Lynch referred the plaintiff to Mr Bourke, an orthopaedic surgeon specialising in the treatment of disorders of the foot, ankle and knee. When Mr Bourke first examined him the plaintiff was using a single crutch and, relevantly, on examination Mr Bourke found "quite a bit of sweating". Amongst other things, the plaintiff complained of "changes in temperature and
colour of the foot with fluctuations from hot and red with excessive sweating to
cold and white…"[7] Whilst Mr Bourke thought that the plaintiff may require subtalar fusion or possibly surgery for any articular cartilage lesion where, as in this case, the diagnosis was complicated by symptoms of RSD, until diagnostic injections were performed and the RSD had settled, the surgeon was not prepared to proceed with any surgery.[8]
[7] PCB 53-54.
[8] PCB 55.
9 Notably, prior to reporting to the treating general practitioner, Dr Heyman and to the insurer in December 2004, Mr Bourke used local anaesthetic injections to isolate the plaintiff's ankle as the likely source of his ongoing pain. However, until the symptoms of RSD were improved this surgeon was still unwilling to perform surgery, although by then he clearly felt that the damage to the ankle would require either fusion or ankle replacement and that
"regardless of which procedure we perform there is no way he will be able to return to heavy manual labour and any future employment would ideally be at a foreman or managerial level rather than heavy lifting on the floor."[9]
[9] PCB 55 and 56.
10 It appears that during 2005 despite an intra-articular injection of a drug used to decrease pain and prolong the time before joint replacement, Synvisc, the plaintiff reported worsening ankle pain, such that it was intolerable pain and required strong analgesics and sleeping tablets. Indeed, after he reviewed the plaintiff in October 2005 Mr Bourke felt that his RSD had worsened. In these circumstances, rather than perform surgery, an intervention he thought would result in a worsening of the plaintiff's condition, the surgeon referred the plaintiff back to Dr Blombery.[10]
[10] PCB 58-60.
11 When Dr Blombery re-examined the plaintiff on 1 December 2005,[11] amongst other things, the plaintiff reported that his foot remained hot and sweaty, that it became white or red in appearance, that there were shooting pains from the heel to the ankle, that he had a burning feeling in the affected area and pins and needles radiating to the toes and that the symptoms in his foot fluctuated from day to day.
[11] PCB 43-44.
12 On this occasion Dr Blombery noted that the plaintiff was "generally tender on
pressure around the left ankle and the left foot was approximately 0.5° cooler than the right ankle. He used one crutch to walk and there was no allodynia[12] over the foot. His medications included temazepam 4 at night, Panadeine
forte 5-8 per day and the antidepressant amitriptyline 50 mgs night." Dr Blombery prescribed pregabalin,[13] anticonvulsant medication he found useful in the treatment of patients suffering from Complex Regional Pain Syndrome.
[12] That is, sensitivity to light touch.
[13] Also known as Lyrica.
13 However, by mid-January 2006, whilst he thought that the anticonvulsant medication had reduced the plaintiff's pain levels, Dr Blombery nevertheless recommended a lumbar sympathetic infusion of local anaesthetic. When he was cross-examined at hearing this specialist explained that he had taken this course to both treat the plaintiff's ongoing features of definite Complex Regional Pain Syndrome Type 1 and to eliminate any component of sympathetically maintained pain; that is pain maintained through the sympathetic nervous system.[14] According to Dr Blombery in the minority of patients the sympathetic nervous system plays a role in mediating or causing the pain reported.
[14] TN 111. See also re-examination at TN 123.
14 Nevertheless, where, as in this case following this procedure the plaintiff reported only a moderate reduction in pain Dr Blombery diagnosed sympathetically independent pain; that is to say, he opined that nerve pathways other than the sympathetic nervous system were probably involved in causing the plaintiff pain.[15]
[15] TN 112 and 123.
15 Accordingly, from late 2005 Dr Blombery commenced treating the plaintiff for Complex Regional Pain Syndrome Type 1, a pain syndrome this specialist clearly believes is an organically based disorder.[16]
[16] See cross-examination TN 108 and Woods v Ross [2000] VSC 501.
16 A lignocaine ketamine infusion performed by Dr Blombery between 10 and 19 July 2006 reportedly provided some short-term improvement in the plaintiff's pain levels. However, it seems that by late 2006 Dr Blombery was given to understand that the plaintiff was contemplating amputation due to the severity of the pain.
17 I note that in late 2006 the treating orthopaedic surgeon informed the insurer that the plaintiff's RSD symptoms continued to prevent surgical intervention to treat the sequelae of a crush injury with degenerative changes which he said had seriously incapacitated the plaintiff. However, even with successful ankle and hind foot surgery Mr Bourke felt that the plaintiff would be limited in his mobility, especially on uneven ground or with stairs and he would be unable to lift heavy objects.[17]
[17] PCB 59-60. See also his report dated 5 September 2007.
18 When on 15 January 2007 Dr Blombery re-examined the plaintiff he presented with a significant limp, a walking stick and he was wearing a CAM Walker boot. As it turned out at some stage before this consultation, Dr Blombery viewed video surveillance footage probably obtained in April 2006 and a report[18] which prompted him to advise the plaintiff's solicitors that in his opinion the plaintiff was capable of doing more than as presented in his medical examination. Indeed, Dr Blombery very pointedly substituted his opinion that the plaintiff was able to perform a job where he was seated or where he needed to walk without carrying any heavy weights for his earlier, unqualified advice that the plaintiff was unfit for work.[19]
[18] Exhibit D1-consists of five surveillance films obtained on, 30 March and 1 April 2005, 1, 2 and 3 March 2006, 11, 12 and 13 April 2006 and 27 January 2010.
[19] PCB 47. See also cross-examination at TN 114-116 and his report dated 3 July 2006 to the insurer in which, whilst maintaining this diagnosis, the doctor also advised that he thought that the plaintiff could perform sedentary work or a job doing light activities on his legs-DCB 44-45.
19 Some years elapsed before the plaintiff was re-examined by either Mr Bourke in January 2010 or by Dr Blombery who from 4 February 2010 also resumed treatment of the plaintiff's ongoing pain syndrome.
20 As is apparent from Mr Bourke's final report and his evidence at hearing, subject to the plaintiff obtaining further advice from Dr Blombery about the prospects of this resolving the plaintiff's ongoing continuous pain issue, Mr Bourke was prepared to perform a below knee amputation. Nevertheless, when Dr Blombery reviewed the plaintiff's condition in February 2010, amongst other things, he recommended against amputation, preferring instead to attempt to control the plaintiff's pain levels by adjusting, as he subsequently did, the type and the amount of the plaintiff's analgesic medication.
21 Relevantly, in re-examination this specialist noted that more recently when he reviewed the plaintiff in September 2010, the plaintiff had stopped taking Endep and he was taking a supra-maximal dose of Lyrica to treat neuropathic pain, a substantial daily dose of the pain killing medication Tramal and he was using anti-inflammatory medication, Voltaren intermittently. According to the plaintiff whilst his foot and ankle have not been improved by this, the changes in his medication since February 2010 have helped him cope with the pain and, as a consequence, he has accepted Dr Blombery's advice not to pursue amputation of the lower limb.
The application
22 By originating motion filed on 14 December 2009 the plaintiff seeks leave under s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) to bring proceedings for the recovery of pain and suffering and loss of earning capacity damages.
23 The application is made under paragraph (a) of the definition of serious injury; that is serious permanent impairment or loss of function of the plaintiff's left lower limb by reason of injury to his left ankle and foot. To succeed, the plaintiff must prove a compensable injury and that the pain and suffering and any loss of earning capacity consequences of injury-related impairment, when judged by comparison with other cases in the range of possible impairments of the left lower limb are more than "significant" or "marked" and at least "very considerable".
24 In summary, the plaintiff is required to establish a compensable injury after 29 April 2004; the nature of the injury; the consequences as at the date of hearing, in this case both the pain and suffering and loss of earning capacity consequences, to which compensable injury materially contributes; and that these consequences are serious in the sense that they are permanent and
"very considerable".
25 Any psychological or psychiatric consequences of the plaintiff's physical injury cannot be taken into account in determining this application for leave under paragraph (a) of the definition of serious injury. In this case where there is evidence of a pain syndrome I must consider what the evidence disclosed as to the extent to which (if any) this is mediated by non-organic factors.
26 The plaintiff will not establish the requisite loss of earning capacity if, after taking into account his physical capacity for suitable employment post-injury and his attempts to participate in rehabilitation and retraining, he has a capacity for any employment which if exercised would result in him earning more than 60% of his without injury earnings determined in accordance with ss134AB(38)(f) of the Act.
27 The onus rests on the plaintiff to prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[20]
[20] s134AB(19)(b).
28 As from 1 July 2010 the Act (as amended) redefines “suitable employment” such that the plaintiff’s capacity to earn from suitable employment must be taken into account, whether or not the suitable employment is available and is of a Type or nature that is generally available in the employment market.
29 If the plaintiff satisfies the loss of earning capacity requirements in s134AB of the Act, he will be entitled to leave in respect to both these damages and pain and suffering damages without further determination of this aspect of the application.
The Evidence Called and Tendered
30 The plaintiff deposed to the accuracy of his first affidavit and his further affidavit sworn on 16 September 2010. He was cross-examined at length.
31 The material tendered by the plaintiff consisted of his Court Book from which a number of documents had been removed and to which, with the leave of the Court, the surveillance log summary was added.
32 The defendant tendered the five surveillance films to which I have already referred and its Court Book from which a number of documents had been removed and to which, with the leave of the Court, a report from Dr Blombery addressed to the general practitioner and dated 17 February 2010 as well as a copy of a Contract of Employment entered into with Goods Online Pty Ltd which appears to be part of the Micton Group ("Micton") were added.
33 Relevantly, Mr Bourke, Dr Heyman, Dr Blombery, Mr Klein, managing director of Micton, who on 4 August 2009 swore an affidavit in support of the plaintiff's application and Nandi Moffett, vocational assessor and co-author of Vocational and Labour Market Analysis Report dated 27 April 2010 commissioned by the defendant from CoWork Pty Ltd ("CoWork"), were all required for cross-examination.
The Areas of Dispute
34 The defendant did not contest that the plaintiff suffered a compensable injury to his left lower limb on the date alleged as the result of a work-related incident. From the defendant's point of view the contest was confined to 3 matters. The first concerned the diagnosis of Complex Regional Pain Syndrome Type 1. In this regard the defendant relied particularly on the reports of its medico-legal specialist rheumatologist, Dr Kostos who examined the plaintiff twice.
35 Relevantly, Dr Kostos amongst other things, reported that when he examined the plaintiff on 30 September 2009 he found that the plaintiff's left foot "was
slightly cooler but there weren't any colour changes. He did not have any
hyperalgesia, sudomotor or dystrophy changes" and that when he examined the plaintiff on 19 March 2010 there were "no abnormal findings consistent
with Complex Regional Pain Syndrome Type 1, except for hyperalgesia in the
left foot".[21] Accordingly, in the presence of "very little objective evidence to suggest" Complex Regional Pain Syndrome Type 1, this rheumatologist attributed the plaintiff's complaints of pain throughout the left lower limb
"particularly at the base of the left foot which at times can be "like an
explosion"," to a pain syndrome he described as a chronic regional pain syndrome.[21] DCB 57 and 61.
36 In his penultimate report dated 24 March 2010 Dr Kostos reiterated his original diagnosis of chronic regional pain syndrome.[22] However, according to Dr Blombery, whose expertise in these matters was not challenged, this is not a description of any pain syndrome recognised by the International Association for the Study of Pain.[23]
[22] DCB 55-62.
[23] TN 127.
37 Allowing for the content of the reports submitted by this specialist and for his observation that there were significant discrepancies between the plaintiff's presentation and the reports he read describing the plaintiff’s activities in surveillance film obtained in March and April 2006, Dr Kostos evidently formed the view that, other than some permanent impairment of his ankle joint as a result of the fracture, by and large the plaintiff's reports of severe pain were not mediated by this physical injury.[24] In these circumstances I was satisfied that this diagnosis was probably not an error in describing Complex Regional Pain Syndrome Type 1. Rather through this description,[25] and notwithstanding an earlier clinical finding of some temperature change and more recently hyperalgesia in the left foot, Dr Kostos probably intended to indicate his belief that the symptoms reported by the plaintiff were not due to organic factors.
[24] DCB 62.
[25] Albeit a description probably not recognised by the International Association for the Study of Pain.
38 In his final address the defendant's counsel made no submissions on pain and suffering.[26] The defendant nevertheless contested the plaintiff's submission that he was totally and permanently incapacitated for all types of employment by ongoing injury-related impairment and pain management issues.
[26] TN 251.
39 According to the defendant the plaintiff has the capacity to work in suitable employment and, in particular the defendant relied on three full-time positions identified in the CoWork report, namely Despatch Clerk, Spare Parts Interpreter and Forklift Driver. Having received copies of the CoWork report Dr Kostos and orthopaedic surgeon, Mr Jones deemed each position to be suitable employment.[27]
[27] DCB 63 and 74.
40 Having previously on 12 January 2007 diagnosed chronic adjustment disorder with depressed mood and having more recently read the CoWork report psychiatrist, Dr Stern also informed the defendant's solicitors that in his view the plaintiff was psychiatrically fit for work which included these job options.[28]
[28] DCB 53-54.
41 Relevantly, none of these job options, some of which would require some level of retraining, were put to the plaintiff's treating doctors, Dr Heyman, Mr Bourke and Dr Blombery, each of whom were cross-examined at length.
42 Lastly the defendant attacked the plaintiff's credit. As this was central to the attack on the plaintiff's credit the five surveillance video films obtained between 30 March 2005 and 27 January 2010 and shown and tendered at hearing are discussed next. [29]
[29] Exhibit D1.
The film
43 In cross-examination the plaintiff agreed that when he was re-examined by Mr Jones in May 2010 he told him that his walking capacity was limited to about 20m at which stage he had to stop for a few minutes before proceeding and that he could only walk with the assistance of a single stick, although he managed to hobble around within the confines of his own home without a stick.[30] Similarly he also agreed that in February 2010 he had told Dr Blombery that he was able to walk approximately 200m before he had to rest, although he could walk for up to 1 km with three or four breaks and that he tended to use a stick when he was walking outside, but not at home.[31]
[30] DCB 71.
[31] PCB 48.
44 In his further affidavit sworn in September 2010, amongst other things, the plaintiff deposed to being able to walk 200m to 300m without significant difficulties and to using a brace to protect his left foot and ankle and a walking stick when he was outside. [32]
[32] PCB 17.
45 In addition to the evident conflict between his various representations in 2010 concerning the distance he is able to walk, the clear impression conveyed by the statements made in his affidavit and to these doctors was that the plaintiff currently mobilises outside his home wearing a brace and using a walking stick. However, during cross-examination the plaintiff sought to mitigate the impact of this evidence by denying that this was the impression given and by asserting that he used a walking stick when needed.[33]
[33] TN 22-25.
46 The surveillance log summary tendered by the plaintiff indicates that surveillance was undertaken on various dates between 30 March 2005 and 11 June 2010. 11 sightings were logged and film from each of these days was shown at hearing.
47 In all of the film shown at hearing the plaintiff was seen away from his home without a walking stick or crutch, he was active and, allowing for the Cam Walker boot worn by him and the occasions on which the plaintiff stood with his weight resting on his right leg, the plaintiff appeared to walk quite freely and at times quickly. The plaintiff was cross-examined after each segment of film was shown and I have incorporated the explanations given by him in the summary below.
48 For instance, the short film obtained on 30 March and 1 April 2005 depicts the plaintiff driving his own vehicle and carrying and loading tubing into this vehicle. Another segment of film obtained on 1, 2 and March 3, 2006 variously shows the plaintiff at the premises of Micton and driving a van he said belonged to his friend, Mr Klein, although other than performing odd jobs and light tasks for Mr Klein, both he and Mr Klein denied that he performed any work for Micton prior to entering into the Contract of Employment from 2 July 2007. Short segments of film were also obtained on 28 and 29 September 2009 and on 27 January 2010 variously depicting the plaintiff walking, driving and briefly walking out from and back into his home.
49 The longest segment of film shown was approximately 59 minutes, taken over consecutive days, 11, 12 and 13 April 2006. The plaintiff agreed that on 11 April 2006 he spent a large part of the three hours over which surveillance was conducted on his feet. In this film the plaintiff attended the Micton premises. He was seen moving around the factory and carrying objects, apparently preparatory to going out with others to collect water for Mr Klein's fish tanks from the Werribee South Beach. However, before arriving at the beach the plaintiff drove to a service station where he put petrol in the van and both at the petrol station and later at the factory he and others spent a considerable amount of time and energy trying to start a faulty generator.
50 Some of the last mentioned film depicts the plaintiff removing his Cam Walker boot, moving up and down rocks at the beach and standing in the water for a lengthy period before he and the others return by van to the factory where the plaintiff unhooked a trailer from the van and pushed it back into a car park area. The next day the plaintiff arrived at the factory at about 8:15 am. Until approximately 12 pm when the plaintiff said that they all went to the pub for lunch, he is seen on more than one occasion driving a forklift. However, were it the case that whilst wearing a Cam Walker the plaintiff, as he claimed he did, slid off the forklift, as far as I could tell on each of the occasions he was captured doing this the plaintiff appeared to enter and leave the forklift without obvious difficulty.
51 During the course of the same morning the plaintiff and Mr Klein apparently went about the business of returning and replacing the generator. Following this, the plaintiff went to the bank and after returning to the factory he again operated the forklift apparently as part of an attempt by him to fix a leaking fuel pump in his car.
52 On 13 April 2006 over a short period between 9:55 am and 10:04 am the plaintiff was again captured on film moving around the factory premises.
53 In cross-examination the plaintiff agreed that these three days of film provided a fair representation of his walking capacity in April 2006.
54 Apart from Dr Blombery who, after seeing the surveillance film probably obtained on 11, 12 and 13 April 2006, revisited his earlier opinion that the plaintiff was unfit for work, a number of the defendant's medico-legal specialists either viewed segments of the film or read surveillance reports. In either case they have consistently responded by reporting their view that the plaintiff had demonstrated a greater capacity for activity than when he presented for examination.
55 For instance, orthopaedic surgeon, Mr Elsner examined the plaintiff for the second time on 11 April 2006 when he apparently presented with a pronounced left leg limp and alleged that he used a stick if he walked more than 200 m. However, after seeing the same film, this specialist clearly felt that the level of activity shown in film was inconsistent with the plaintiff's presentation to him on the same day.[34] After viewing this film, Associate Prof Littlejohn, who examined the plaintiff on 6 April 2006, was similarly moved to highlight the discrepancy between activity captured on film and the plaintiff's report during his examination that pain in his left foot prevented him from working and that he used a crutch in his right hand when walking. Indeed, he felt that the plaintiff was capable of a wide range of activities and that he had full capacity for his pre-injury work.[35]
[34] DCB 16.
[35] DCB 28. Relevantly, counsel for the defendant conceded that this opinion as to the plaintiff's capacity for work was not shared by any of the other doctors.
56 On 4 April 2006 the plaintiff also apparently presented for examination by psychiatrist Dr Kenny wearing the boot, walking with quite a marked limp and using a crutch. Having viewed the surveillance film obtained on 11, 12 and 13 April 2006 he too questioned whether the plaintiff was as restricted as he presented himself to be.[36]
[36] DCB 41.
57 As I have already indicated following his first examination of the plaintiff on 30 September 2009, Dr Kostos also questioned the extent of any disability when he said that the plaintiff presented to him with "what appears to be a
considerable functional impairment necessitating the use of a walking stick and has a marked limp whilst wearing a foot orthosis. However this appears to be in contrast to the findings of surveillance reports that you have enclosed
in your file today ..."[37]
[37] DCB 58.
58 Mr Jones who examined the plaintiff for the first time in November 2009 also had copies of these surveillance reports, although, unlike Dr Kostos, he did not comment unfavourably on the plaintiff's presentation on examination. This included walking with a single stick in his left hand and wearing a polypropylene and ankle/foot orthosis which held the plaintiff's left ankle and foot in a right angle position.[38] However, as I have already mentioned when he re-examined the plaintiff in May 2010 Mr Jones probably understood from the plaintiff that he needed to use a single stick to mobilise outside his home.
[38] DCB 67 and 68.
59 When considered together all of these matters indicate that over some years on more than one occasion the plaintiff has probably exaggerated the extent of the restrictions on his mobility. Of course this finding does not exclude the possibility that the plaintiff remains significantly disabled by reason of injury- related impairment of his left lower limb and a related pain syndrome. Moreover, where this was made known to them whether by viewing the film or by reading reports including the CoWork report, both treating and medico- legal doctors appear to have allowed for this.
60 Against this background in determining this application I have considered all of the evidence and where necessary the extent to which the opinions received from the expert witnesses provide a reliable basis for making my findings of fact.
61 Importantly, Mr Klein’s credit was not challenged. His affidavit and evidence at hearing generally corroborated the plaintiff’s claim that from 2 July 2007 Micton employed him as a full-time warehouse manager and that by 31 October 2008 Micton had terminated the plaintiff’s employment because the consequences of his injury made him too unreliable.
62 Micton imports automative products from China which are distributed Australia-wide through its online stores. As a long-standing friend Mr Klein said that following his injury he became very concerned about the plaintiff's state of mind. As a result and having been persuaded by the plaintiff that there were sufficient light duties for him to work a normal eight-hour day, from 2 July 2007 Mr Klein and his partner employed the plaintiff as the company's warehouse manager.[39] This employment involved a significant pay rise with an agreed salary of $74,250 per annum inclusive of all superannuation obligations.
[39] PCB 21-24 and see generally cross-examination TN136-155.
63 However, it appears that due to pain and disability, until his employment was terminated on 31 October 2008 the plaintiff never worked a full week. Indeed, based on the "Statement of hours recorded" exhibited to Mr Klein's affidavit, until he was retrenched, excluding annual leave, the plaintiff lost between 6 and 22 hours each week. I was told that until he was dismissed this averaged more than 16 hours lost each week. In other words, for a 38 hour week, on average due to his injury the plaintiff worked less than 60% of the required hours.
The Plaintiff’s Background
64 The plaintiff is 49 years of age. He was educated to year 10 level. He is twice divorced with two children aged 27 and 11 years respectively. The plaintiff had an unsettled upbringing and troubled youth followed by various periods in custody involving in the main serious dishonesty and drink-driving offences.
65 However, following his last release from custody for some 16 years the plaintiff and a partner operated a spare parts business. By the plaintiff’s account they worked in this business until competition from computers and eBay slowed the business. However, over a ten-year period until 1999 this spare parts business was profitable, with a turnover in a couple of these years of between $500,000 and $600,000.[40] Following the failure of his business and before this injury intervened the plaintiff worked with the defendant and he was established as a morning shift supervisor. In cross-examination the plaintiff agreed that this was a busy job in which he managed some 47 to 50 workers, either loading or unloading up to 200 interstate and local deliveries each day. It was work the plaintiff said he really enjoyed.[41]
[40] TN 63-65.
[41] TN 66-68.
66 According to the plaintiff following the injury he performed light duties until 22 June 2004, after which he was unemployed before commencing employment with Micton in July 2007.[42]
[42] PCB 9 and TN 21.
67 In cross-examination the plaintiff said that until he gave this up in February 2010, after ceasing work with Micton in October 2008 he used the Newspaper and the Internet to seek work and he had applied for half a dozen full-time managerial-Type positions, work he thought he could manage and which paid about $72,000 or $73,000 plus gross per annum.[43] He also said that currently his computer skills were limited to using Facebook and, with the assistance of his teenage son, sometimes using eBay.[44] The impression I formed was that the plaintiff skills in the use of computers were rather basic.
[43] TN 41-43.
[44] TN 66, and re-examination, TN 101-103.
Current Treatment and Prognosis
68 Apart from his foot orthosis, in his further affidavit the plaintiff deposed that he was having physiotherapy every two weeks and that he took varying daily doses of Tramadol, Lyrica, Digesic, Voltaren Rapid, Endep, Temazepam and Paracetamol.[45]
[45] PCB 17.
69 General practitioner, Dr Heyman told the court that the plaintiff consulted him approximately monthly and that he provided WorkCover certificates and prescriptions for the plaintiff’s medications. However, Dr Heyman said that he did not undertake any clinical examination because the pain reported by the plaintiff was intermittent and his patient was under the care of specialists, Dr Blombery and Mr Bourke on whose opinions Dr Heyman relied.[46]
[46] TN 91.
70 In Dr Heyman's opinion the plaintiff is totally incapacitated for all work including sedentary work due to the unpredictability, the frequency and the intensity of pain related to the Complex Regional Pain Syndrome.[47]
[47] TN 96 and PCB 30.
71 Mr Bourke has provided multiple written reports, the last after he reviewed the plaintiff in January 2010. In this report, amongst other things, the treating surgeon noted improvement in the range of movement of both the ankle and foot, although the plaintiff reported an increase in pain as well as instability. He too has accepted that the plaintiff’s symptoms are consistent with ongoing Complex Regional Pain Syndrome.
72 Relevantly, at hearing Mr Bourke told the court, amongst other things, that:
•
he had discouraged amputation due to the risk of phantom pain and the possibility that the plaintiff could also develop Complex Regional Pain Syndrome in the stump, which would be extremely difficult to treat and would prevent the wearing of a prosthesis;
•
he would never be happy performing surgery to the plaintiff's ankle until the Complex Regional Pain Syndrome had been controlled for a significant length of time, something he believed would not happen; and
•
excluding his level of pain and the impact of the medication taken on the plaintiff's cognitive functioning, physically the plaintiff is capable of full-time sedentary work.[48]
[48] See generally TN 54-59.
73 As I have already noted, since February 2010 Dr Blombery has implemented a new regime of more potent analgesic medication which both he and the plaintiff acknowledged has improved his pain levels.
74 Dr Blomberry said that he has seen the plaintiff regularly during 2010, although his last clinical examination was in February when he confirmed that he found no difference in temperature or colour, no major tenderness around the ankle and no sensitivity to light touch. Nevertheless, based both on the plaintiff's account, which included reporting intermittent pain, shock-like sensations travelling into the arch of the foot, variations in colour and temperature, excessive sweating and swelling and on his finding a 3 cm difference in circumference between the plaintiff's left and right calf, Dr Blombery opined that the plaintiff was suffering from ongoing features of Complex Regional Pain Syndrome Type 1. Dr Blombery described this as a significant disability, the prognosis for recovery from which was poor.[49]
[49] PCB 48-49.
75 Relevantly, at hearing Dr Blombery also told the Court that:
•
whilst he had relied on the accuracy of the history and reports received from the plaintiff, if the plaintiff's leg was normal, after removal of the brace he would have expected the leg to have been warmer;
•
the significant wasting of the plaintiff's left calf indicated a very major organic problem for a small part of which the wearing of the brace may account;
•
just as the pain fluctuates from day to day typically with Complex Regional Pain Syndrome the activity of the sympathetic nervous system fluctuates and the symptoms vary a lot;
•
as the plaintiff was taking "quite potent medications for pain, plus Lyrica, Voltaren, Digesic Panadeine and Tramal" which would affect his concentration he thought that the plaintiff might be able to do some part-time seated work.[50]
[50] TN118-128.
The Medico-Legal Evidence
76 I have already mentioned in passing the reports of a number of medico-legal specialists who examined the plaintiff on behalf of the defendant.
77 Mr Elsner, Dr Littlejohn and rheumatologist, Dr Hall each examined the plaintiff on various dates between July 2005 and February 2007. This was prior to his unsuccesful attempt to sustain full-time work with Micton in a managerial position. Unlike Dr Littlejohn when they physically examined the plaintiff neither Mr Elsner nor Dr Hall found symptoms evidencing sympathetic disturbance or, as Dr Hall said, active RSD.
78 As I have already indicated the plaintiff was examined more recently in March 2010 by Dr Kostos and in November 2009 and May 2010 by Mr Jones.
79 Clearly, notwithstanding some limited findings on examination such as a variation in temperature and hyperalgesia in the left foot, Dr Kostos rejected the plaintiff's subjective account of his symptoms as evidence of likely Complex Regional Pain Syndrome Type 1.
80 On 16 September 2010, based on his previous reports, what he described as "the surveillance evidence" and the CoWork report, Dr Kostos informed the defendant solicitors that in his opinion the plaintiff was physically capable of undertaking full-time work in the occupations of “Dispatch/Receiving Clerk (sic),” “Spare-Parts Interpreter” and “Forklift Driver.”[51]
[51] DCB 63.
81 When he first examined the plaintiff in November 2009, in addition to noting some features suggestive of RSD Mr Jones relevantly said:
"10(a) This man's left foot and ankle symptoms and particularly his pain limits his physical activity.
Purely from the perspective of damage to the ankle and subtalar joint this man does have the capacity to undertake some of the aspects of his pre-injury employment especially in a supervisory capacity.
The level of pain experienced by the patient however and the requirement for large quantities of medication for his pain may impact upon his employability even in sedentary Type work.
[52] DCB 69-70.
(b) From a purely mechanical perspective the restrictions on this patient's left foot and ankle limit him to standing and walking for limited periods and being unable to climb stairs or ladders. He would be capable of sedentary Type employment if his pain levels as described could be reduced. (c) This man has a permanent incapacity for physical employment."[52]
82 On re-examination in May 2010 apart from his observation that the temperature varied between the plaintiff's feet Mr Jones said he was unable to confirm persisting RSD. Nevertheless, amongst other things Mr Jones concluded that:
•
the prognosis was poor due to persisting ankle and subtalar joint pain and stiffness and continuing pain in the plaintiff's lower leg;
•
the physiotherapy treatment is probably of no benefit to the plaintiff's foot, although the analgesics and other medication taken were appropriate treatment;
•
the ankle injury had a severe impact on the plaintiff's day-to-day activities in terms of his ability to stand, walk and even at rest; and
•
allowing for the level of analgesia taken and the degree of stiffness in the plaintiff's ankle and subtalar joint the plaintiff was not capable of his pre- injury employment, although Mr Jones thought that "through training he
may be capable of sedentary work of a clerical nature. I believe that he
has a permanent incapacity for physical employment."[53][53] DCB 72-73.
83 Having read CoWork's report in September 2010 Mr Jones informed the defendant’s solicitors that in his view the required degree of standing or walking involved in the three full-time positions described did not appear to be beyond the physical capacity of the plaintiff with respect to his left foot and ankle.[54] In reaching this conclusion the orthopaedic surgeon appears to have treated all three positions described in the report as sedentary or clerical work and, unlike the treating specialists, Dr Blombery and Mr Bourke he appears to have overlooked the potential impact of the strong medication taken on, for example, the plaintiff's capacity to concentrate and to drive a forklift on a full- time basis.
[54] DCB 74.
84 Subject to my discussion of the evidence of Mr Klein and Ms Moffett shortly these are all matters which helped me prefer the evidence of the treating specialists concerning the plaintiff's physical capacity for work.
The Compensable Injury
85 All of the treating and medico-legal doctors have agreed that the plaintiff suffered a significant work-related crushing injury to his left lower limb from which he has been left with permanent physical impairment. This condition is probably stable. The plaintiff has consistently reported and received treatment for symptoms compatible with Complex Regional Pain Syndrome Type 1. These symptoms fluctuate as the treating specialists and most of the medico- legal specialists have at different times found.
86 In determining this application the plaintiff also satisfied me that he probably continues to suffer from an organic condition involving features of chronic regional pain syndrome Type 1, the presence of which militates against any surgical intervention and for the treatment of which the plaintiff requires the various strong medications mentioned in his evidence and in Dr Blombery's evidence. Whilst the symptoms of this condition may fluctuate, on balance I was satisfied that the condition is permanent in the sense that it is likely to persist in the foreseeable future.
87 On the evidence both conditions probably continue to make a material contribution to pain and suffering and pecuniary loss consequences, although the extent of these consequences requires further consideration.
88 I now turn to consider the loss of earning capacity claim which the plaintiff must establish in accordance with the requirements of s134AB.
Loss of earning capacity consequence under paragraph (a) of the definition of serious injury
89 In relation to his loss of earning capacity claim, in addition to the narrative requirements of loss of any capacity under paragraphs s134AB(38)(e), (f) and (g) of the Act, the plaintiff was required to prove that at the date of hearing, his loss, as measured by reference to the statutory formula, is 40 per centum or more, and, after the date of hearing, a loss of earning capacity productive of a financial loss of 40 per centum or more will continue permanently.
90 The loss of earning capacity is measured by comparing the income the plaintiff is earning or capable of earning in suitable employment at the date of hearing ("the after-injury earnings") and the income that the plaintiff was earning or was capable of earning during that part of the period within three years before and three years after the injury as most fairly reflects his earning capacity had the injury not occurred ("the without-injury earnings").
91 The income compared is gross income from personal exertion, expressed at an annual rate. Notwithstanding the defendant's submission on the approach to be taken to this, the comparison required to be made does not call for an averaging of the plaintiff’s income in the without-injury period nominated by the statute. Rather it focuses on the income the plaintiff earned or was capable of earning as most fairly reflects his earning capacity had the injury not occurred.
92 A statement of calculation of the plaintiff's loss of earnings was submitted to the Court. It was common ground that the plaintiff’s gross annual income from personal exertion in the three financial years before the injury was, in 2002, $43,892, in 2003, $44,976 and in 2004, $48,598. In the three years following his injury the plaintiff remained unemployed prior to commencing full-time work with Micton as a Warehouse supervisor over a 15 month period from 2 July 2007.
93 For the year ending 30 June 2008 the plaintiff earned $70,383 or approximately $1353 gross per week, evidence which at the very least confirms that post-injury the plaintiff had the experience and skills to qualify for managerial work in a warehouse setting. It was also evidence on which the defendant relied to show that the plaintiff had the ability to generate this level of income.
94 Essentially, based on the evidence of his work experience and skills and on the decision of the Court of Appeal in Hayhill Pty Ltd & Ors v Hodge[55] I was asked by the plaintiff to infer that the amount the plaintiff might have been capable of earning from personal exertion was in the vicinity of $1300 gross per week had the injury not occurred and that this amount, not the plaintiff's gross income in, for instance, the financial year ending 30 June 2004 represented a fair reflection of his earning capacity in the years following the incident had the injury not occurred.
[55] [2006] VSCA 194 at paragraph 7.
95 I note that more recently in Acir v Frosster Pty Ltd[56] His Honour, Justice Forrest explained in some detail the application of s134AB(38)(f) of the Act where he said, amongst other things, that this provision:
[56]
"165 …requires the Court to examine a variety of scenarios to determine which most fairly reflects the workers earning capacity. Only (a) below is based on proof of historical facts, while (b) to (d) require findings as to hypothetical situations. In the three years before the injury the Court considers:
(a)
The gross income that the worker was earning during the period of three years before and after the injury -- proved on the facts.
(b)
The gross income that the worker was capable of earning from personal exertion ... -- a past hypothetical.
and in the period of three years after the injury:
(c) The gross income the worker would have earned from personal exertion -- a future hypothetical. (d) The gross income the worker would have been capable of earning from personal exertion -- a future hypothetical. The Court must then determine which of these scenarios (if more than one is applicable on the evidence) most fairly reflects the earning capacity of the worker without injury.
166 In most cases, the enquiry will be relatively simple; the wages at time of injury will be established (scenario (a)) and generally, as the Second Reading Speech makes clear, the only other question will be determining whether, pursuant to scenario (c), there has been an increase or decrease in wages and the prospects of promotion. However, at times scenarios (b) and (d) may need to be considered, such as, where it is necessary to examine the capabilities and capacity of the worker in terms of wages which could have been potentially earned or were prospectively available post-injury (e.g., if he or she was not working full-time at the time of the injury). ..."[57]
[57] [2009] VSC 459.
96 All of these matters have helped persuade me that in this case for the purpose of s134AB(38)(f) scenario (d) applies; that is the gross income the plaintiff would have been capable of earning from personal exertion probably was $1353 gross per week and that this amount when annualised most fairly reflects the plaintiff's earning capacity without injury.
97 As from 1 July 2010 the following definition of "suitable employment" was substituted by the amended Act:
“suitable employment, in relation to a worker, means employment in work for which
the worker is currently suited –
(a) having regard to –
(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; and(ii) the nature of the worker’s pre-injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence; and
(v) any plan or document prepared as part of the return to work planning
process; and
(vi) any occupational rehabilitation services that are being, or have been,
provided to or for the worker; and
(b) regardless of whether –
(i) the work or the employment is available; and (ii) the work or the employment is of a Type or nature that is generally available in the employment market.”
98 Allowing for the second reading speech, it is clear that Parliament[58] has moved to abrogate the effect of the decision in Smorgon Tube Mills v Majkic, which held that in determining what the worker was capable of earning in "suitable employment", regard was to be had to the realities of the labour market, and loss of earning capacity was to be determined having regard to work that was "generally available in the employment market."[59]
[58] Victoria, Parliamentary Debates, Legislative Assembly, 10 December 2009, page 4625, Mr Holding, Minister for Workcover.
[59] Smorgon Tube Mills v Majkic (2008) 21 VR 193,196.
99 In this case, I must also consider the possibility of employment following the plaintiff's injury by reference to the plaintiff's physical capacity for employment and with due regard to the various factors on which the definition of "suitable employment" elaborates. The ultimate concern is whether the plaintiff has a physical capacity for work which, if exercised, would result in him exceeding the statutory threshold of 60% of gross income earned from personal exertion.
100 As I have already mentioned, the onus is on the plaintiff to establish that, after appropriate rehabilitation or retraining, injury-related impairment of his left lower limb permanently restricts his employment options. The determination of this issue also takes into account the reasonableness of his attempt, if any, to participate in rehabilitation or retraining and he must prove any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability.
101 Notwithstanding his claimed total incapacity, the plaintiff also submitted that any residual earning capacity exercised by him in suitable employment would not produce more than 60% of his without-injury earnings, namely a gross weekly sum of $811.80.
The Vocational evidence
102 I have already mentioned the Vocational and Labour Market Analysis Report dated 27 April 2010, submitted by CoWork. It is a lengthy report co-authored by a Labour Market Consultant with a qualification in human resource management and by Ms Moffett who gave evidence and was cross-examined in some detail.
103 Ms Moffett described herself as a "vocational assessor". She has formal qualifications in physiotherapy and journalism obtained in England. Ms Moffett said that after qualifying in 2005 she worked with elite sports teams in Ireland. However, after migrating to Australia in 2007 and prior to taking up her position with CoWork as a vocational assessor from August 2009, she spent approximately 32 months working in two hospitals as a physiotherapist.
104 Apparently, one requires qualification as an occupational therapist, a physiotherapist or a psychologist to be recognised by Comcare as a vocational assessor.[60]
[60] See generally TN 163 and 195-6.
105 Ms Moffett said that her function is to produce medico-legal documents which involve taking the medical information with which CoWork is presented and creating job recommendations to match a worker's physical capacity.
106 According to the report, CoWork was asked by the defendant's solicitors to undertake two tasks. The first was to "identify suitable employment which Mr
Sinclair could undertake taking into account his "current work capacity" age,
education, place of residence and medical restrictions." The second task was to provide information on jobs CoWork "believe the worker would have a
capacity to perform and which are ordinarily available on the labour market. Included in this information you have also requested details of the potential earnings the worker could expect. In addition, you would like to know whether a similar job to the one the Plaintiff currently performs would be available to
this worker in the open labour market."[61]
[61] DCB 115.
107 At hearing Ms Moffett said that as a preliminary to recommending the three occupations identified in the report as suitable employment, CoWork had regard to extensive copy materials provided by the defendant’s solicitors. The schedule to the report nominates numerous medical reports from both treating and medico-legal doctors obtained between July 2004 and November 2009. Notably, the most recent medical evidence to which CoWork had regard came from reports treating doctors Dr Heyman, Dr Blombery and Mr Bourke submitted during 2006 or 2007 and from the report of the defendant’s medico- legal orthopaedic specialist Mr Jones submitted in November 2009.
108 The schedule to the report also shows that the materials on which CoWork relied included reports obtained between 2004 and 2006 relating to vocational and worksite assessments, rehabilitation services and surveillance activity reports for April 2005, March and April 2006 and October 2009.
109 In addition to the materials supplied Ms Moffett said that CoWork considered the plaintiff's skills and past history (presumably by reference to these materials), CoWork looked at various websites, as for example the Department of Education and Work Relations website and the Stinson website,[62] and it undertook worksite assessments for each job.[63]
[62] This is the website operated by Rodney Stinson who publishes Australian Bureau of Statistic’s data and provides lists of the inherent tasks in various occupations-TN 164-5.
[63] TN 164-5.
110 There are a number of factors which have significantly diminished the value of the opinions expressed in the CoWork report. One was the absence of up-to- date information from the plaintiff, who was not interviewed. This is a circumstance that indicates that the report was probably not specifically directed to vocational matters. Another was the absence of any opinions from his treating doctors to inform CoWork of their current diagnoses and treatment and their opinions as to the plaintiff's ongoing physical incapacity for work.
111 For instance, as is apparent from my summary of the evidence in 2010 and my findings, the treating doctors have all accepted that apart from the impairment of his left foot the plaintiff suffers from ongoing features of Complex Regional Pain Syndrome Type 1. Dr Heyman continues to certify the plaintiff as totally incapacitated for all work, including sedentary work. As I have already mentioned at hearing he attributed this to the unpredictability, the frequency and the intensity of pain associated with Complex Regional Pain Syndrome. Mr Bourke's report and evidence leads to a similar conclusion, although, notwithstanding these factors, Dr Blombery said, albeit without apparent conviction, that the plaintiff might be able to do some part- time sedentary work.
112 I was also troubled by the selective approach taken by Ms Moffett to the extensive medical and other information to which she said she had regard and from which various assumptions[64] were made and used to support the advice that the three career options mentioned in the report, Despatch/Receiving Clerk, Spare Parts Interpreter and Forklift Driver were only examples of "the many opportunities" available for the plaintiff to explore.[65]
[64] For instance, CoWork assumed some level of computer skills from the plaintiff's previous role as a warehouse manager which was inconsistent with the plaintiff's evidence concerning his skills-DCB 125.
[65] DCB 118.
113 For instance, sections 1.5 and 4.4 of the report purport to summarise the diagnoses and the medical opinion regarding the plaintiff's capacity for work.
114 For reasons that are not apparent from the content of the report or Ms Moffett's evidence, CoWork cited the original diagnoses of injury to the talus and lateral ligament of the plaintiff's left ankle and a "mild sympathetic dystrophy" which were probably drawn from the 2004 report of treating surgeon, Mr Lynch. These diagnoses were preferred to those offered by the treating pain specialist, Dr Blombery in November 2006 and by the defendant’s orthopaedic specialist, Mr Jones in the most recent report to hand in November 2009, where, amongst other things, without characterising it as “mild” they both diagnosed ongoing features of Complex Regional Pain Syndrome Type 1 or RSD and they clearly accepted that the plaintiff was suffering from quite severe and debilitating pain.[66]
[66] PCB 46 and DCB 69 respectively.
115 In Dr Blombery's case he did so notwithstanding his knowledge of the discrepancy between the plaintiff's presentation in 2006 and the surveillance film.
116 As to the plaintiff's current capacity for work, relevantly the report extracts a statement from Mr Jones’ report to the effect that in his opinion the plaintiff would be capable of sedentary type employment if the pain levels described in the November 2009 report could be reduced. In doing so Ms Moffett appears to have overlooked the specialist's further comments in the same report indicating as they did, that in addition to the medication used to treat pain, Mr Jones thought that the plaintiff required further analgesic medication and that the level of his pain and the requirement for large quantities of medication could impact on the plaintiff's employability even in sedentary type work.[67]
[67] DCB 69-70.
117 I have already commented on Mr Jones' report submitted in May 2010 and my reasons for preferring the evidence of the treating specialists. In this report Mr Jones concluded that the level of analgesia taken and the stiffness in the plaintiff's foot precluded a return to his pre-injury employment and to any physical employment. However, without explaining why the plaintiff's use of medication would not also impact on this, Mr Jones also said, and after reading the CoWork report on 16 September 2010 confirmed, his view that the plaintiff may be capable of sedentary work of a clerical nature, including the three occupations recommended as suitable by the CoWork report.
118 Of course, whatever criticism may be made of the report and the occupations recommended as suitable employment by CoWork, the onus of proof in respect to permanent loss of earning capacity always remains with the plaintiff.
119 Whilst none of the plaintiff's treating doctors were taken to the CoWork report and it is unlikely that they were fully aware of the nature and extent of the plaintiff's work history, Mr Klein's evidence helped me accept that the treating doctor's evidence as to the plaintiff's capacity for suitable employment was probably well founded. For instance, in both his affidavit evidence and at hearing Mr Klein drew a picture of a man with valuable work skills who was significantly restricted in the hours he could consistently work particularly by the consequences of pain, who brought to work a lunch box full of what Mr Klein believed were painkilling medications which the plaintiff took progressively throughout the day, who after taking medication at times presented as cognitively impaired and unable to properly conduct even a business call, who had problems getting off the forklift and who struggled to climb stairs to perform tasks such as taking or obtaining paperwork from the factory office.[68]
[68] TN 143-154
120 Allowing for Mr Klein’s evidence, had the plaintiff been remunerated for the actual hours worked each week between July 2007 and October 2008, due to the impact of the injury the plaintiff probably did not then have the physical capacity to earn more than 60% of the without-injury earnings figure. This evidence, the nature of his incapacity and the medication required to control the fluctuating pain levels support the plaintiff’s submission that he probably cannot reliably undertake the managerial employment duties he was employed to perform with Micton, that even were he able to undertake occupational retraining he probably cannot meet the requirements of the three full-time positions to which the CoWork report and some of the defendant’s specialists referred and that each of these occupations is probably not "suitable employment" in the workforce.
121 Based on all of the evidence:
(a)
the plaintiff probably has no current capacity to return to his pre-injury or physical employment ;
(b)
the plaintiff's education, experience and work history probably qualify him for managerial work of the Type he performed for Micton;
(c)
any residual physical earning capacity is currently and probably permanently limited to sedentary duties;
(d)
to apply his skills and any residual work capacity away from a very flexible workplace environment such as that provided by Micton for some 15 months, would probably require some retraining, as for example, in the use of relevant computer programs;
(e)
due to his injury for the foreseeable future the plaintiff is probably no more reliable in his capacity to present for and regularly work than he was during the period he worked with Micton. This indicates that the plaintiff could potentially lose up to 22 hours in any single week worked, or over a year an average of some 16 hours per week, whether that was in full-time or part-time sedentary employment; and
(f)
it is unlikely that any of the full-time or part-time job options mentioned in the CoWork report represent suitable employment for this plaintiff because they were nominated by CoWork without having given adequate consideration to the restrictions relevant to the plaintiff's physical limitations, the need for him to manage fluctuating and severe pain levels and the likely impact of medication on the plaintiff's cognitive functions.
122 Accordingly, applying the tests under the Act, by reason of the ongoing impairment of his left lower limb
(a)
I find that the plaintiff has a loss of earning capacity of 40% or more[69] and that he will, after the date of hearing, continue permanently (that is, in the foreseeable future) to have a loss of earning capacity which will be productive of financial loss of 40% or more;[70]
(b)
I am satisfied that rehabilitation and retraining are unlikely to improve the plaintiff's capacity for employment or to improve it to a level that would take him over the statutory threshold;[71] and
(c)
the plaintiff has satisfied me that when judged by comparison with other cases in the range of possible impairments or loss of a body function, the plaintiff loss of earning capacity is fairly described as more than significant or marked, and as being at least very considerable.
[69] Section 134AB(38)(e)(i)
[70] Section 134AB(38)(e)(ii)
[71] Section 134AB(38)(g)
123 As the plaintiff is entitled to leave in respect to his loss of earning capacity consequences I am not required to separately determine the pain and suffering consequences aspect of this application.
Orders 124 In these circumstances, I propose to make an order granting leave to the plaintiff to commence proceedings against the defendant in respect of pain and suffering and pecuniary loss damages. I will hear from the parties as to the making of appropriate orders. Ibid.
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