Dohnt v VWA
[2021] VCC 802
•18 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY APPLICATIONS LIST
Case No. CI-20-01696
| JUSTIN DOHNT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 March 2021 | |
DATE OF JUDGMENT: | 18 June 2021 | |
CASE MAY BE CITED AS: | Dohnt v VWA | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 802 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application –pain and suffering conceded by defendant- whether a loss of earning capacity - suitable employment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Barwon Spinners v Podolak (2005) 14 VR 622, Richter v Driscoll [2016] VSCA 142, Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188, Dundar v Bas [2019] VSCA 315, Davies v Nilsen & Anor [2014] VSCA 278
Judgment: Application Granted
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr M A Nightingale | Arnold Thomas & Becker |
| For the Defendant | Ms G Cooper | Wisewould Mahoney |
HIS HONOUR:
Relevant legal principles
1The plaintiff seeks the grant of a serious injury certificate for leave to recover damages for both pain and suffering and economic loss pursuant to section 325 of the WorkplaceInjuryRehabilitation and Compensation Act 2013 (“the Act”). He relied on both paragraph (a) and (c) of the definition of serious injury. However, at the commencement of the hearing, the defendant conceded pain and suffering. Thus, in determining whether the plaintiff’s injury is serious, I need to be satisfied that the consequences of the injury are serious with respect to a loss of earning capacity for him. In determining the “consequences” of the injury, whether as to pain and suffering or loss or earning capacity, I am required to consider the consequences to this plaintiff, when viewed objectively, arising from the injury and I must assess whether “the injury” is a “serious injury” as at the time the application is heard. This process is often enough referred to as the “narrative test”. Whatever my decision, I am obliged to give reasons that disclose the pathway of my reasoning in dealing with the evidence and issues raised by the application.[1]
[1]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
2When a plaintiff asserts he has suffered a serious injury by reference to a loss of earning capacity, the additional threshold he must show is that, at the date of the decision:
(a) He has sustained a loss of earning capacity of 40% or more; and
(b) He will, after the date of the decision, continue permanently to have a loss of earning capacity which produces a financial loss of 40% or more[2].
[2]Section 325(2)(e)(i) of the Act.
3This application did not involve the parties debating the matter of calculations of the plaintiff’s pre-injury earnings, because it was agreed between them, that the plaintiff’s pre-injury earnings figure is $1,100 per week nett of superannuation. Sixty percent of this figure is $660.00 per week.
4Furthermore, the parties accepted that in the event I am satisfied that the plaintiff has a capacity for full-time employment in any of the suitable employment identified by the defendant, then he would not satisfy the requirement of a financial loss of 40% or more and his application for economic loss must fail. Axiomatically, in the event I am satisfied that the plaintiff does not have a capacity for full-time employment in suitable employment and that this will continue permanently, then he will have made good a claim for economic loss if I am satisfied the consequences for him of such a loss are at least very considerable.
Representation
5The plaintiff was represented by Mr Brett QC together with Mr Nightingale of counsel and the defendant was represented by Ms Cooper of counsel. Counsel provided helpful submissions.
Plaintiff’s evidence
6The plaintiff relied on the following oral and written evidence:
(i) Oral evidence of the plaintiff Mr Justin Dohnt;
(ii) Affidavits of plaintiff dated 27 November 2019[3] and 11 February 2021;[4]
[3]Exhibit P1, Plaintiff’s Court Book (‘PCB’) 4-10
[4]Exhibit P1, PCB 11-15.
(iii) Reports from Dr Robert Reid dated 7 May 2016[5], 14 December 2016[6], 29 November 2017[7], 2 April 2018[8] and 7 November 2020;[9]
[5]Exhibit P2, PCB 18-19.
[6]Exhibit P2, PCB 20-29.
[7]Exhibit P2, PCB 30-31.
[8]Exhibit P2, PCB 32-33.
[9]Exhibit P2, PCB 34-36.
(iv) Reports of Dr Clayton Thomas dated 18 May 2016[10] and 18 July 2016;[11]
[10]Exhibit P3, PCB 38-41.
[11]Exhibit P3, PCB 42-43.
(v) Eleven reports of Dr Richard Sullivan dated 7 March 2017[12], a supplementary report dated 7 March 2017[13], 30 June 2017[14], 1 August 2017[15], and Operation Records dated 1 September 2017[16], 17 October 2017[17], 30 November 2017[18], 12 April 2018[19], 25 May 2018[20], 24 January 2019[21] and 19 November 2020;[22]
[12]Exhibit P4, PCB 46-50.
[13]Exhibit P4, PCB 51-52.
[14]Exhibit P4, PCB 53-54.
[15]Exhibit P4, PCB 55-56.
[16]Exhibit P4, PCB 57.
[17]Exhibit P4, PCB 58.
[18]Exhibit P4, PCB 59-64.
[19]Exhibit P4, PCB 65-71.
[20]Exhibit P4, PCB 77-78.
[21]Exhibit P4, PCB 72-76.
[22]Exhibit P4, PCB 79-85.
(vi) Three reports of Dr Ali Kian Mehr dated 20 January 2018[23], 6 May 2018[24] and 27 November 2020;[25]
(vii) Two reports of Dr Gavin Weekes dated 30 April 2018[26] and 10 July 2019;[27]
(viii) Medico-legal report of Mr Douglas Gardiner dated 13 November 2020;[28]
(ix) Three medico-legal reports of Dr David Middleton, dated 21 June 2018[29], 13 August 2019[30], and 4 September 2020;[31]
(x) Medico-legal report of Professor Richard Bittar dated 15 January 2021;[32]
(xi) Three radiology reports:
(a)Diagnostic Care MRI two region contiguous spine dated 2 September 2015[33]
(b)Dr Ali Kian Mehr – Nerve Conduction Study dated 9 May 2017[34]
(c)MIA Radiology Weight Bearing MRI lumbar spine dated 26 April 2017[35]; and
[23]Exhibit P5, PCB 86-90.
[24]Exhibit P5, PCB 91-92.
[25]Exhibit P5, PCB 93-97.
[26]Exhibit P6, PCB 101-103
[27]Exhibit P6, PCB 104-105.
[28]Exhibit P7, PCB 140-148.
[29]Exhibit P8, PCB 187-210.
[30]Exhibit P8, PCB 211-224.
[31]Exhibit P8, PCB 225-236.
[32]Exhibit P9, PCB 241-247.
[33]Exhibit P10, PCB 249-250.
[34]Exhibit P10, PCB 251-252.
[35]Exhibit P10, PCB 254-255.
(i) Medical Report of Mr Roy Carey dated 3 Feb 2020.[36]
[36]Exhibit P11, Defendant’s Court Book (‘DCB’) 170-180.
7The defendant relied on the following evidence:
(i) Five reports of Dr Tim Hwang dated 8 August 2017[37], 6 February 2018[38], 28 June 2018[39], 3 March 2020[40] and 24 November 2020;[41]
(ii) Two Nabenet Suitable Employment Reports dated 27 March 2020[42] and 29 September 2020;[43] and
(iii) Two reports of Professor Jacques Joubert dated 2 February 2018[44] and 11 May 2018.[45]
[37]Exhibit D1, DCB 94-101.
[38]Exhibit D1, DCB 140-142.
[39]Exhibit D1, DCB 147-149.
[40]Exhibit D1, DCB 181-187.
[41]Exhibit D1, DCB 214-219.
[42]Exhibit D2, DCB 188-199.
[43]Exhibit D2, DCB 200-213.
[44]Exhibit D3, DCB 131-139.
[45]Exhibit D3, DCB 143.
Relevant chronology
8Although this application falls to be determined on the single issue of a loss of earning capacity, informed in turn by whether the plaintiff has a capacity for suitable employment in certain full time jobs identified by the defendant, it is relevant to know something of the plaintiff, his education and work and life experience and of his medical treatment to date although, given the narrowed issue for determination, not all of the respective medical evidence is relevant. I shall address such of it as is relevant.
9The plaintiff was born in 1971. He completed Year 10 at Technical School. His working history has essentially involved driving trucks, driving semi-trailers locally and interstate for the better part of a decade[46]. His partner is Tanya. He is a father to two young children, Amber aged 11 and Zac 14, in addition to a 24-year-old daughter.
[46]Exhibit P1, Plaintiff’s Court Book (‘PCB’) 4-10.
10He commenced employment on 3 November 2014 with Ruskin Range Pty Ltd (the employer). He suffered the injury the subject of this application on 14 March 2015. That day he attended Sunshine Hospital and underwent x‑rays. He was discharged with a neck brace. He commenced seeing his treating general practitioner, Dr Robert Reid, on 23 March 2015. He remains under Dr Reid’s care.
11He lodged a claim for compensation in or about April 2015. It was accepted. He was paid weekly payments of compensation up until about 30 July 2018. He has since been in receipt of a Newstart Allowance.
12An MRI cervical, thoracic, lumbar and sacral spine of 2 September 2015 demonstrated:
· L4/L5 and L5/S1 posterior annular disc tear and mild broad-based disc bulges.
· Multi-level mild thoracic and lumbar spondylosis with degenerative disc disease.
· Old T6 and T7 and T8 vertebral bodies compression deformity.
· Multi-level cervical spondylosis.[47]
[47]Exhibit P10, PCB 249.
13On 18 November 2015 the plaintiff attended on Dr Clayton Thomas.[48]
[48]Exhibit P1, PCB 6.
14On 6 October 2016 he attended the Emergency Department Sunshine Hospital with acute exacerbation of chronic back pain.[49] On 10 November 2016, he attended the Emergency Department Dandenong Hospital with back pain.[50]
[49]Exhibit P2, PCB 25.
[50]Exhibit P2, PCB 24.
15On 7 March 2017 he attended on Dr Richard Sullivan for the first time.[51] Dr Sullivan is an Interventional Pain Specialist and Specialist Anaesthetist who would come to see the plaintiff on a number of occasions and provide a series of reports.
[51]Exhibit P1, PCB 6.
16On 22 April 2017 the plaintiff had an MRI of the right hip and on 26 April 2017 a conventional weight-bearing MRI of the lumbar spine with the associated comments identifying an L4/5 broad-based disc bulge extending into the subarticular recesses bilaterally, greater on the right than the left, with contact of the traversing L5 nerve roots, which appear greater on the weight-bearing study.[52]
[52]Exhibit P10, PCB 254.
17On 9 May 2017 the plaintiff attended on Dr Ali Kian Mehr, a Physical Medicine and Rehabilitation specialist.[53] Also on 9 May 2017 a nerve conduction study was performed.[54]
[53]Exhibit P5, PCB 86.
[54]Exhibit P10, PCB 251.
18On 1 September 2017 Dr Sullivan administered a right-sided L5 plus right-sided S1 transforaminal epidural injection.[55]
[55]Exhibit P4, PCB 57.
19On 17 October 2017 Dr Sullivan administered a bilateral L3/4 medial branch nerve block and right sacroiliac joint injection.[56]
[56]Exhibit P4, PCB 58.
20On 1 December 2017 Dr Sullivan performed L3, L4 and L5 medial branch nerve radiofrequency denervations.[57]
[57]Exhibit P4, PCB 69.
21On 6 March 2018 the plaintiff attended on Dr Gavin Weekes, Pain Specialist.[58]
[58]Exhibit P6, PCB 101.
22On 15 January 2021 the plaintiff attended on Professor Richard Bittar, Neurosurgeon, for medico-legal purposes.[59]
[59]Exhibit P9, PCB 241.
Certain relevant evidentiary matters
23The plaintiff said he has poor computer skills.[60] I accept they are rudimentary and he is not familiar with standard computing programs.[61] Beyond the plaintiff’s mere say-so, there is some objective evidence of his poor grasp of such things. For instance, the plaintiff said he undertook a computer course but had not managed to complete it because it was beyond him.[62] Furthermore, such of the study of the course that he undertook was conducted remotely (presumably because of COVID‑19 restrictions), with the result, as he explained matters, that he had been able to participate in the course at his own pace.[63]
[60]Transcript (‘T’) 10 (or 17).
[61]T37.
[62]T10.
[63]T39.
24The plaintiff also explained that he has difficulty reading.[64] Dr Middleton, who provided medico-legal opinions relied on by the plaintiff, has described the plaintiff in his 18 April 2018 report as “computer illiterate” and “having difficulty with spelling and [his] only social skills operating his iPad, only using the single right dominant index finger for input” and that he suffered from dyslexia.[65] Dr Middleton’s report dated 18 April 2018 was not tendered by the defendant, but Dr Hwang, upon whose opinions the defendant relies, and whose reports were tendered, has questioned the foundation for Dr Middleton’s attribution of a diagnosis of dyslexia.[66]
[64]T32.
[65]David Middleton report dated 18 April 2018 PCB 182-183.
[66]Tim Hwang report dated 28 June 2018, Exhibit D1, DCB 147-148.
25The plaintiff did not depose that he suffers from dyslexia or deficiencies in reading, writing or comprehension. Neither were such limitations explored in much detail in the hearing, but I do bear in mind the submission made by Ms Cooper, that the plaintiff agreed that as a truck driver he needed to and was able to complete a handwritten truck log[67].
[67] T32.
26Obviously enough, the question is whether the plaintiff’s difficulties in reading and writing amount to further disinhibiting considerations relevant to his capacity to undertake any of the suitable employment ultimately relied on by the defendant when assessed together with the consequences occasioned by his physical impairment.
27The plaintiff said that his experience of back pain affects his ability to sleep most nights.[68] He said he finds it hard to get to sleep and when he does, his pain wakes him. Sometimes he will need to have a sleep during the day. He said he rarely experiences an uninterrupted night’s sleep, with the result that he wakes up most days feeling unrefreshed and fatigued.[69] He was not challenged in cross-examination on this account.
[68]Exhibit P1, PCB 8.
[69]Exhibit P1, PCB 13.
28He finds driving a car for more than about 30 to 45 minutes difficult. Getting in and out of a motor vehicle is also difficult.[70] In evidence he said he had driven to Warrnambool for a holiday, but he had been able to take stops along the journey.[71] In his oral evidence he estimated his driving tolerance to be up to an hour[72] without the need for a break. There is some variation in the medical reporting about this, but it is not of great moment, and it is safe to conclude that his probable driving tolerance is in the order of an hour in a single session.
[70]Exhibit P1, PCB 8.
[71]T34.
[72]T20.
29He has difficulty standing, sitting and walking for prolonged periods of time.[73] He has difficulty negotiating stairs.[74] None of the proposed suitable employment relied on by the defendant calls for a need to navigate stairs, although one job calls for the occasional ability to manage steps. The plaintiff has a limp[75] and an antalgic gait, but I am not persuaded that these presentations would preclude his ability to occasionally navigate some few steps.
[73]Exhibit P1, PCB 8.
[74]T36.
[75]T36.
30Whilst generally able to manage public transport, the plaintiff said he has suffered from spontaneous back spasm on occasion whilst on a train.[76] I appreciate that the suddenness of the same would be likely to engender some concern on his part. There is also a report from Dr Sullivan in November 2020, that the plaintiff continues to experience back spasm.
[76]Exhibit P1, PCB 8.
31He has difficulty with certain personal activities such as putting on his shoes and socks and his trousers.[77] He said that as a result more often than not he wears shorts and thongs even during the winter months. It is unclear but probably unlikely that such casual attire would be acceptable in the roles relied on by the defendant.
[77]Exhibit P1, PCB 8.
32I am satisfied that the plaintiff has experienced some improvement in his physical condition. Earlier he had explained that he could only manage short bike rides with his children[78] and he preferred a scooter because of the lack of the need to pedal.[79] However, when the plaintiff saw Dr Sullivan in November 2020, he told him that he had taken up gentle bike riding and was participating in the pursuit, approximately twice per week, and was riding around 10 to 15 km with a friend. Dr Hwang also had occasion to relate the plaintiff’s adoption of bike riding. I think this reflects a betterment in the plaintiff’s residual functional capacity and tolerance.
[78]T19.
[79]Exhibit P1, PCB 9.
33Dr Sullivan also said in November 2020 that the plaintiff experienced some soreness from bike riding but he did not explain if the soreness was occasioned because of the impaired function of the spine or bike riding generally for a man of the plaintiff’s heavy build. The matter was not explained in the oral evidence. What was expanded on in cross-examination, is that the plaintiff’s lack of current bike riding is due to having moved home and living in a hilly area as well as the lack of proximity to his former bike riding partner.[80]
[80]T19.
34The plaintiff no longer mows the lawns because of his back injury and the insurer now pays for a gardener to mow the lawns for him.[81]
[81]Exhibit P1 PCB 9.
35The plaintiff said that he can perform some domestic chores, including cooking,[82] although this is attendant with some difficulty when needing to bend to the oven or retrieve pots and pans from low cabinetry.[83] He said he will go down on one knee. He can manage to wash the dishes. He has undertaken some general maintenance around the home in Bacchus Marsh that he and Tanya moved into, including some painting and putting some kit furniture together and constructing some benches.[84] He said that he had managed to paint the majority of his daughter’s bedroom other than low placed skirting boards.[85]
[82]T10.
[83]Exhibit P1, PCB 9.
[84]T18-19.
[85]T41.
36He continues to attend Dr Reid approximately once a month.[86] He is prescribed medication for cholesterol and high blood pressure by Dr Reid.
[86]Exhibit P1, PCB 11.
37The plaintiff deposed that he frequently experiences pain radiating into his right buttock and thigh. He says that his major problem has been and remains his low back.[87]
[87]Exhibit P1, PCB 12.
38He says that the intensity of his back pain varies and that it is severe about four days of the week and at such times his ability to engage in activity is very restricted.[88]
[88]Exhibit P1, PCB 13.
39He said that because of the unpredictability of his back condition he is unable to tell from one day to the next when his symptoms will be worse. This makes planning very difficult.[89]
[89]Exhibit P1, PCB 13.
40The plaintiff said that he has experienced no real improvement in his condition of his low back and that he continues to experience a “sharp shooting pain…most of the time.”[90]
[90]T21.
41Dr Reid, as recently as 7 November 2020, expressed the opinion the plaintiff remains unfit for his pre-injury employment or for suitable employment.[91] Dr Reid has professed a diagnosis, although in truth, he identified symptoms, comprising:
· Chronic pain fluctuating severity associated with intense muscle spasm also of fluctuating intensity.
· Chronic limp.[92]
[91]Exhibit P2, PCB 34-36.
[92]Exhibit P2, PCB 35.
42Dr Reid reported that the plaintiff’s symptoms are exacerbated by prolonged:
· Sitting, standing and walking
· Driving +/or stooping
· Repetitive bending +/or twisting
· Lifting[93]
[93]Exhibit P2, PCB 35.
43Dr Reid also said that the back injury is the cause of the plaintiff’s ongoing pain with the consequence that he experiences the following limitations of his physical capacity:
· Walking
· Lifting
· Climbing
· Jumping
· Twisting
· Sitting
· Standing
· Making love
· Driving[94]
[94]Exhibit P2, PCB 35.
44Dr Reid reported that each of the above activities if performed beyond a minimal degree are potential significant aggravators to the plaintiff’s pain with associated muscle spasm.
45Dr Reid anticipated a deterioration in the plaintiff’s condition although he acknowledged an inability to predict a rate of deterioration.
Dr Richard Sullivan
46Dr Sullivan, in a “supplementary report” dated 19 November 2020,[95] wrote that the plaintiff provided an account of low back pain at the belt-line that extended out across the iliac crest and running down into his gluteal region and into the midback region. He experiences right-sided leg pain that is felt in the gluteal region and through the posterior aspect of the thigh and into the calf, and on occasion he will experience pain running into his foot and first toe of his right leg. The plaintiff assessed his back pain as at best 6/10, but that with exacerbations it could reach 10/10, and that when this occurs, he stops whatever activity he is doing, rests, and takes medication. Dr Sullivan said that the plaintiff had also described back spasm with an accompanying sensation he likened to his back being on fire, and that when this occurs, he will rest in bed and take analgesia.
[95]Exhibit P4, PCB 79-85.
47Dr Sullivan wrote that the plaintiff’s back and leg pain was inhibiting his functional capacity such that he can sit for approximately 30 minutes, stand for approximately 60 minutes, walk for approximately 40 minutes, lift and carry weight of no greater than 10 to 15 kg irrespective of which hand, and that he will suffer significant exacerbation of back pain and/or leg pain when bending forward or backward at the waist. He has a drive tolerance of around 60 minutes.
Medications
48At the date of Dr Sullivan’s November 2020 report the plaintiff was taking tramadol for pain but he had managed to reduce his total dose to something between 0 mg and 250 mg per day. Dr Sullivan also documented that the plaintiff had completed a pain management program and had been able to de‑escalate his medications considerably and had remained off medications altogether until approximately two months prior to the date of his November 2020 report.
49Under cross-examination by Ms Cooper, the plaintiff said he is presently not taking any pain medication.[96]
[96]T21.
50Dr Sullivan reported on the plaintiff’s capacity for numerous non-work-related activities, including assisting with cooking and meal preparation and undertaking short periods of vacuuming of perhaps 10 to 20 minutes at a time. He said he is able to hand wash at waist height. Otherwise domestic chores are completed by Tanya.
51In his oral evidence, and in answer to questions put to him by Ms Cooper, the plaintiff identified a current domestic range of daily activities that appear to me to be a little more than reported by Dr Sullivan in his November 2020 report, and not confined to assisting with cooking and meal preparation but in fact cooking dinner for Tanya and their two children every day.
52The plaintiff said he can touch his knees and put things into and out of the oven and can lift pots on and off the stove, and bend down to pick something off the ground so long as he bends down on one knee.[97] He said that it hurts him to bend, “but I still do it.”[98] When asked by Ms Cooper if it was the case that despite his pain he will “just go about your business and ignore it”, he said, “And deal with it.”[99] Mr Brett, in final address, observed that the evidence was silent whether the dinners are complicated and if, for instance, they involved the use of heavy pots and pans. The plaintiff said that his spaghetti bolognese is well received at home.[100]
[97]T21.
[98]T21.
[99]T21.
[100]T10.
53The plaintiff does the laundry and washing of clothes by placing them in the washing machine and then taking them out and placing them into the dryer. He does a bit of light gardening as well, such as pulling out weeds and trimming the rose bushes, and said that “I’ll give it a shot when I can.”[101] He sweeps and uses a leaf blower probably once month.[102]
[101]T11.
[102]T11.
54He tinkers with model cars at the kitchen bench by alternating between standing up and sitting down.[103] He has a hobby of “Diamond Dotz painting” that he undertakes on his bed.
[103]T22.
55Dr Sullivan reported that the plaintiff finds that any task that requires him to bend forward or backwards at his waist leads to significant aggravation of his pain.
56In response to Ms Cooper, the plaintiff described walking one of the children to school each day and back, a distance he reckoned of about one kilometre each way.[104]
[104]T20.
57Dr Sullivan’s reported account of the plaintiff’s driving tolerance of up to one hour accords with the plaintiff’s oral evidence.
58The plaintiff told Dr Sullivan that he manages only approximately three to four hours of effective sleep per night, with the result that he experiences daytime somnolence, poor memory, and poor concentration.
59Dr Sullivan diagnosed the plaintiff as suffering an aggravation of lumbar spondylosis which causes chronic pain affecting his low back and his right lower limb. He also identified persistent pain affecting the neck and left upper limb that commenced following his injury on 14 March 2015.
60Dr Sullivan considered that it was suitable for the plaintiff to lift between 10 to 15 kg from waist height to chest height but not to bend forward to pick such a weight up from the ground.
61Dr Sullivan expected that the plaintiff’s limitations will continue into the foreseeable future. However, unlike Dr Reid, Dr Sullivan did not think that the plaintiff is likely to experience a substantial or precipitous deterioration in his condition, nor did he think that the plaintiff is likely to see significant improvement in the foreseeable future.
Dr Mehr, Rehabilitation Physician
62Dr Mehr provided a report dated 6 May 2018[105] requested by the plaintiff’s solicitors in response to a list of jobs. Dr Mehr thought that the plaintiff could not return to any type of physical work and that his condition is indefinite and was stable.
[105]Exhibit P5, PCB 91-92.
63Dr Mehr thought that the plaintiff may be able to get back to sedentary jobs after undertaking a pain management program and a comprehensive return to work program and at the best he may be able to do a part-time job but it would amount to less than 0.5 FTE.
64Dr Mehr expressed the following opinion about a number of identified suitable employment that had been suggested.
(i) Forklift driver. He excluded this because of the required sitting position.
(ii) Product Assembler. Dr Mehr did not think that the plaintiff would be able to physically perform the requirements of the job.
(iii) Park/Gatehouse attendant. Although the job required consistent standing, Dr Mehr thought the plaintiff may be able to perform the role if able to frequently change his position from standing to sitting, and at best he may be able to do less than half of the full time job.
(iv) Machine Operator. Dr Mehr did not believe that the plaintiff could meet the physical needs of the job.
(v) Customer Services Officer. Dr Mehr thought that, if modified such as to provide enough rest period and the plaintiff was able to change his position from standing to sitting frequently, he may be able to undertake the role but not as a full-time job and at best less than 0.5 FTE.[106]
[106]Exhibit P5, PCB 91-92.
65In a report dated 27 November 2020,[107] Dr Mehr noted that he had reviewed the plaintiff on 12 September 2018 following a referral for assessment and consideration of ketamine infusion, which at that time, he considered the plaintiff unsuited for due to his psychological instability.
[107]Exhibit P5, PCB 93-97.
66Dr Mehr noted that the plaintiff’s most severe pain was in the lower back with radiation to the lateral side of the right thigh. The pain was a stabbing and aching pain. The plaintiff told him that his pain was aggravated by sitting more than 30 minutes. He was unable to sit at all in Dr Mehr’s rigid and upright chair. The plaintiff said that bending was another aggravating factor for his pain and that standing still was a significant problem as well, but that he experienced fewer problems with walking. His pain on self-assessment was between 5 to 8 out of 10, partially relieved by medication. He complained of insomnia.
67Dr Mehr had certain radiological investigations available including:
· MRI of the right hip and reported as normal;
· Bone scan of the lumbosacral spine also reported as normal;
· Weight-bearing MRI that demonstrated L4/5 broad-based disc bulge exiting into the articular recess bilaterally on the right side with more than left side and contact with the traversing L5 nerve root more in the weight-bearing position.[108]
[108]Exhibit P5, PCB 93-94.
68In his 27 November 2020, Dr Mehr recorded the plaintiff’s sitting tolerance as between 30 to 45 minutes. He was able to walk for one hour. His driving tolerance was between 30 to 45 minutes and fluctuating. The plaintiff explained that he could attend to many domestic activities of daily living such as cleaning and washing, but had hired a gardener. Although he could do some cooking, it was limited to light dishes. He could not lift more than 10 kg.
69Mr Mehr said the plaintiff told him that he had suffered a fall two days previously and had experienced other falls that he attributed principally to back spasm.
70On clinical examination Dr Mehr found that the plaintiff’s gait was antalgic. His range of motion of the lumbar spine with 70° of flexion and 5° of extension and there was significant tenderness on the right lumbar spine especially in the midline but no restriction of range of motion of the hip.
71Dr Mehr thought the plaintiff’s prognosis for his chronic pain condition was poor and he would remain unchanged for the foreseeable future.
72Dr Mehr also thought that the plaintiff’s prognosis of a return to pre-injury work or any other physically active job was poor. He explained that the plaintiff held no capacity for any type of work due to physical limitation as a result of his aggravation of spinal spondylosis and chronic back pain, added to which was the plaintiff’s age, lack of qualification and lack of work experience.
73As was the case with Dr Sullivan, Dr Mehr was unable to provide an accurate answer to the extent of any future deterioration in the plaintiff’s condition.
Mr Roy Carey
74Mr Carey is a consultant orthopaedic surgeon. He provided a report dated 3 February 2020.[109] He observed that other than Dr Weekes, who on 30 April 2018 had provided a diagnosis of “lumbar spondylosis”,[110] it did not appear as if the plaintiff had been provided with a specific physical diagnosis.
[109]Exhibit P11, DCB 170-180.
[110]Exhibit P6, PCB 102.
75Mr Carey wrote that the plaintiff had completed a pain management program which he had found “useful” in helping him understand his problem, although having said that, the plaintiff told him that it had made no difference to his experience of pain.
76Mr Carey wrote that the plaintiff continued to experience pain that extended over the lumbosacral region into the midline, with radiation through the buttock and over the right hip area down the back of the thigh to the knee. The pain is constant and varies in intensity with posture and activity. He limped on the right leg since the injury. Coughing, sneezing and sudden movements increased his pain. His sleep is always disturbed and he awakes stiff and sore in the mornings. His driving tolerance was about 45 minutes.
77Mr Carey reported that the plaintiff had sustained an injury in a significant fall at work and has experienced ongoing back and lower limb symptoms ever since but in the absence of specific pathologies such as fracture, sacroiliac joint disruption or radicular symptoms in the lower limb. He thought that the plaintiff’s right leg symptoms were likely to be referred pain, rather than radicular in nature. He assessed the plaintiff as a pleasant, direct and straightforward fellow but who did not have a satisfactory diagnosis other than lumbar spondylosis (initially asymptomatic) but subsequently aggravated by the subject fall.
Dr David Middleton
78Dr Middleton is an Occupational Physician. The plaintiff relied on three of six reports prepared by Dr Middleton dated 21 June 2018,[111] 13 August 2019[112] and 4 September 2020.[113]
[111]Exhibit P8, PCB 187-210.
[112]Exhibit P8, PCB 211-224.
[113]Exhibit P8, PCB 225-236.
79Dr Middleton was critical of the content and evaluation of certain identified suitable employment that the defendant had obtained as a result of requests made of Recovre. Neither of the two Recovre reports Dr Middleton referred to in his three tendered reports were put in evidence by the defendant. No Occupational Consultant for the plaintiff has expressed an opinion of the suitability of the jobs identified and relied on by the defendant and referred to in two Nabenet reports as opposed to the two earlier Recovre reports. Although the Recovre reports were not tendered, it is necessary for me to refer to them in order to make logical and chronological sense of the reporting of the jobs referred to by me earlier and also mentioned by Dr Mehr, but in particular, by Dr Middleton.
80In his 21 June 2018 report Dr Middleton adopted the comments he made in three earlier reports dated 3 July 2017, 18 December 2017 and a supplementary report dated 18 April 2018. In his 21 June 2018 report, Dr Middleton wrote how in his report dated 18 April 2018 he had been requested to furnish an opinion as to whether the jobs identified by Recovre in its report dated 17 October 2017 would be suitable employment and specifically the jobs of:
(i) forklift driver
(ii) product assembler
(iii) carpark/gate house attendant
(iv) machine operator
(v) customer service operator.[114]
[114]Exhibit P8, PCB 204.
81Dr Middleton observed that in his 18 April 2020 report he had concluded that the Recovre report had failed to take account of the plaintiff’s physical capacities in regard to the appropriate work restrictions. He pointed out the lack of the plaintiff’s computer skills, as well as the impact of his then medication. He noted that the plaintiff had structural damage, including a demonstrable prolapse at L4/5 and L5/S1 with neural irritation requiring assessment by a spinal surgeon, as well as a treatment plan that was likely to include recommendations for spinal surgery. Finally, Dr Middleton reported that whilst the plaintiff may have some capacity to perform sedentary work he had no current work capacity as defined under the Act, and in his opinion, the report by Recovre dated the 17 October 2017 should not be relied upon.
82In his 21 June 2018 report Dr Middleton addressed the plaintiff’s then current activities. He described how the plaintiff may clean a few dishes, do some light shopping locally. Socially, the plaintiff “walks about four houses down to see his mates on alternate days if possible. He does little or no entertainment due to lack of funds. Mr Dohnt reports his activity tolerance limits as being sitting to 30 minutes, standing still to 30 minutes, he can walk slowly up to several kilometres, with frequent rests. Mr Dohnt takes his children to school, which is a five-minute walk. Lifting is up to 10kg for brief periods and small carries, tending to avoid bending and lifting or twisting.”[115]
[115]Exhibit P8, PCB 189.
83In his 21 June 2018 report Dr Middleton referred to a Supplementary Suitable Employment Report prepared by Recovre dated 14 June 2018. He addressed how the author of the report had discussed the level of computer knowledge required for one of the identified roles of an electronics process worker and that by limiting comments to the level of computer knowledge and English literacy required he felt the author had failed to address the physical requirements of the work and, in particular, the plaintiff’s activity tolerance limits. Dr Middleton said the plaintiff had told him that he uses the single right dominant index finger only on the keyboard and that he was computer illiterate and had difficulty with spelling.
84Dr Middleton thought the author guilty of selective discussion of the plaintiff’s computer knowledge and his English literacy skills, at the expense of addressing the physical requirements of the inherent role of a process worker in electronics and in circumstances where the plaintiff presents with significant physical work restrictions. He said that he did not consider that the report addressed all aspects of the provision of suitable duties as defined under legislation, and whereas his primary concern remained the physical requirements of the work, he did not think any reason had been shown to change his opinion that the job role identified in the Recovre report was not suitable employment.
85Dr Middleton addressed an earlier identified job as a Packer. Once again he wrote that he felt the author had limited discussion to computer knowledge, typing skills and English literacy. He believed that the position required significantly greater computer knowledge than the plaintiff possessed and that the role of the computer is a significant part of the work, and that the plaintiff’s typing skills are at a lesser level than two-finger hunt-and-peck, and the product coding, being alphanumeric, was also a matter of note. He believed that the report ignored the primary impediments to employment for the plaintiff being a severely restrictive safe and reliable physical capacity. He did not consider that the author had addressed the physical requirements of the inherent role, including the limitations in regard to rest breaks and the plaintiff’s severely limited activity tolerance limits. On this basis, having noted the information contained in regard to the role of Packer, in Dr Middleton’s opinion, the supplementary Recovre report had not provided sufficient factual evidence that warranted a change to his opinion that the employment was not suitable employment.
86Dr Middleton also considered that the report’s author had limited the determination of suitability of a Rental/Customer Service employee position to computer knowledge, typing skills and English literacy and had failed to adequately address the physical requirements of the inherent role which were those of sound, basic computer skills, with the ability to navigate between screens, perform internet and related searches, and monitor and respond to email traffic. He noted the comment that the use of a proficient hunt-and-peck-style typing skills was sufficient, but which he believed was misleading. Dr Middleton wrote that the plaintiff could not be regarded as having typing skills sufficient to perform the duties of this role. He added that there is a need for good English literacy as the plaintiff would be required to interact with customers, both by phone and by email, as well as data entry.
87In his report dated 13 August 2019, Dr Middleton remained of the opinion that the plaintiff has no current work capacity and he was unable to identify any employment duties that he would regard as being suitable employment for the plaintiff as defined in the Act. He considered the plaintiff was restricted to sedentary non-manual duties that need to be performed in a self-paced manner with the provision of work breaks as required.
88Dr Middleton wrote that he considered it was important that the plaintiff’s impediments and pain vary from day to day and thereby impact his reliability to complete the inherent role of a job, although he recognised that the plaintiff was no longer reliant upon prescription level analgesia or medication. He said, however, that the plaintiff remained impacted by having disturbed sleep and being sleep-deprived the following day, his concentration and memory are affected and, as such, in his opinion the plaintiff should avoid operating machinery and would be limited to part-time work. He wrote that the plaintiff having been out of the workforce for over four years, any consideration in regard to him returning to the workforce would need the provision of a graduated return to work plan supported by his new employer commencing on two or three hours on any one day, two or three non-consecutive days in any one week. These hours would then need to be monitored carefully by his treating doctors and adjusted in accordance with ensuring that his pains and symptoms remain manageable and do not impinge on his non-work time.
89In his report dated 4 September 2020, Dr Middleton once again expressed the opinion that the plaintiff is totally incapacitated for work and he was unable to identify any employment that he would regard as currently suited for the plaintiff and that this was likely the position that would continue for the foreseeable future. Dr Middleton said that the plaintiff continued to tinker with his model cars, which varied in endurance from thirty minutes to up to an hour on good days. As well, the plaintiff was providing some assistance in home schooling due to the COVID‑19 school shutdown. He undertook almost-daily walks.
90The plaintiff told Dr Middleton that he tries to assist with some minor renovations, and this comment coincided with the plaintiff’s painting of his daughter’s bedroom, but the plaintiff said that he does “not much else”.[116] He does not socialise.
[116]Exhibit P8, PCB 227.
91As regards tolerance limits, Dr Middleton recorded that on a good day he can sit for up to 30-50 minutes, but on a poor day this is limited to 15 minutes. Standing still is limited to 20 minutes on a good day and 5 minutes on a poor day. Walking is about an hour regardless. Driving is 60 minutes on a good day and 30 minutes on a poor day. Lifting has remained unchanged, such that the plaintiff can carry 10kg over a short distance but usually limited to 5kg on an occasional basis and 3kg on an intermittent basis.
The Defendant’s evidentiary case
92The defendant’s opposition to the grant of a serious injury certificate for a loss of earning capacity depended on me being satisfied that the plaintiff has a capacity for identified suitable employment on a full-time basis; that is to say, that he will not continue permanently to have a loss of earning capacity which produces a financial loss of 40% or more. The development of the defendant’s submissions depended on me forming an unreliable judgment about the veracity of his account of the extent of his pain and limitations in undertaking certain everyday activities of life, together with doubts about the genuineness of his expressed preparedness to give work “a go” if offered to him, along with me preferring the opinion of Dr Tim Hwang who assessed the plaintiff at the request of the defendant, and lastly, by accepting that one or other of three job roles identified in two Nabenet reports dated 27 March 2020 and 29 September 2020[117] would amount to suitable employment.
[117]Exhibit D2.
Credit
93It seems to me that despite Ms Cooper’s considered submissions, there are two issues that are problematic. First, despite submitting that I should reject the veracity of the plaintiff’s account of pain, the defendant otherwise rejected any submission that the plaintiff should not be believed. In fact, at the commencement of the defendant’s final address, Ms Cooper observed that the plaintiff “presented as a straightforward witness. I won’t be suggesting anything otherwise is my submission.”[118] I agree with this assessment of the plaintiff and it accords with my evaluation of him. The problem this creates is that there is no reason for me to reject the plaintiff’s account of his pain and that it is chronic and besets him at varying levels of intensity on a daily basis. The second problem for the defendant is whether the plaintiff has a capacity for full-time hours in suitable employment given his account of chronic pain and the implications for reliable employment that is associated with it when assessed in light of the opinions of Dr Mehr and Middleton that he would at the best be limited to part time work, an opinion I recognise that is at odds with Dr Hwang.
[118]T54.
Professor Jacques Joubert
94Before addressing Dr Hwang and the Nabenet reports, I will mention Professor Joubert. He wrote in his report dated 2 February 2018 that the plaintiff “is unable to return to work currently because of the discomfort in his back.”[119] He noted that the plaintiff had been accepted into a pain management program and that “if the treatment ceased the claimant would have a great deal of difficulty with both activities of daily living and the possible return to work one day.”[120] However, in a very brief supplementary report dated 11 May 2018, Professor Joubert expressed the opinion that the plaintiff has a current work capacity and that the jobs identified in the untendered Suitable Employment Report dated 17 October 2017 prepared by Recovre, save for the job of a forklift driver, would amount to suitable employment.[121] I am unable to obtain much assistance from this supplementary report because it fails to explain at all the reasons underpinning the altered assessment arrived at by Professor Joubert.
[119]Exhibit D3, DCB 137.
[120]Exhibit D3, DCB 138.
[121]Exhibit D3, DCB 143.
Dr Tim Hwang
95Dr Hwang provided the defendant with five reports.[122] The first of his reports is dated 8 August 2017.[123] At the time of this report, Dr Hwang thought that the plaintiff may have physical limitations with heavy manual handling, prolonged sitting and whole body vibration and that duties involving predominantly driving would be unsuitable. He considered that a general guide limiting lifting to 5 kilograms regularly and 8 kilograms occasionally would be reasonable.[124]
[122]Exhibit D1.
[123]Exhibit D1 DCB 94-101.
[124]Exhibit D1, DCB 100.
96Dr Hwang addressed certain possible suitable employment options. He excluded a job as a forklift driver as representing suitable employment. He considered that a job as a product assembler (light) would be suitable so long as it was performed in an environment in which the plaintiff was afforded the flexibility to alternate his posture between sitting and standing and moving around. He contemplated, for example, an environment in which there is a sit/stand chair or where there are several varied tasks to undertake rather than a single and repetitive task for the duration of the work day. Dr Hwang considered that a car park/gatehouse attendant may be suitable employment in some instances, such as where the plaintiff is afforded the flexibility to alter his position. Dr Hwang thought that a job as a machine operator (light) would be suitable if predicated on the same type of environment he considered appropriate for the work of a light product assembler. Dr Hwang regarded the job of a customer service officer as potentially suitable in an environment where the plaintiff would be accorded the flexibility to alter his posture, and he anticipated that this may be the case, for example, in a car rental company.
97Dr Hwang’s first report also included an attribution that the plaintiff harboured a reluctance to present for work that was not of the pre-injury type.[125] He wrote that:
He indicated that he always wanted to be a truck driver and did not feel that he should undertake an occupation that he did not want because of someone else’s fault. He has no particular plans with regards to any return to work.[126]
[125]Exhibit D1, DCB 95.
[126]Exhibit D1, DCB 95.
98The attribution by Dr Hwang of the plaintiff’s lack of motivation for work other than his pre-injury type work, of which it is agreed he has no capacity to perform, was reiterated in his report dated 3 March 2020 when he said that:
I once again explored his views on capacity for work. He indicated that he felt he had capacity for lighter work but reconfirmed his previous statement that he was unwilling to undertake alternative employment other than truck driving, as this was his passion and that he had been disabled from truck driving due to no fault of his own. He confirmed no further activities with regard to occupational rehabilitation or job-seeking.[127]
[127]Exhibit D1, DCB 182.
99Ms Cooper’s final address reflected the account from Dr Hwang and the plaintiff in cross-examination when she submitted[128]:
You heard evidence yesterday from the plaintiff about his restrictions and the duties that he felt he could and could not do. What was clear from his evidence is that he’s very unhappy about no longer being able to drive trucks, and has been resistant to trying other lighter work which lead him to spend his days indoors. And Your Honour, although there is obvious sympathy for that position, the question – whether he has the capacity to engage in suitable employment doesn’t include consideration of whether the plaintiff wishes to perform such work.
[128]T54.
100In a supplementary report dated 6 February 2018, Dr Hwang observed that he had been provided with a suitable employment report by Recovre dated 17 October 2017 that had identified the positions of electronic process worker, packer, and rental salesperson. He considered the proposed duties of each of these jobs was within the plaintiff’s physical capacity and restrictions. He also observed that there appeared to be no requisite prior qualifications required for any of the jobs and he considered each of them within the plaintiff’s capacity. Dr Hwang wrote that it was, however, beyond his expertise to undertake a detailed analysis of the skill requirements of the duties required for each position, but on the information available there were “no prior skills required for these duties.”[129] Dr Hwang did not consider there was any limitation on hours the plaintiff is able to work so long as duties to be performed are within his capacity.
[129]Exhibit D1, DCB 141.
101In his report dated 28 June 2018, Dr Hwang said that he had been furnished with reports from Dr Middleton and Professor Joubert, along with the Recovre Suitable Employment reports dated 17 October 2017 and 14 June 2018. It is sufficient a comment to relate that Dr Hwang was at odds with Dr Middleton concerning the origins of and diagnosis of dyslexia and also the extent of the plaintiff’s limited capacity to learn to use basic keyboard or mouse functions associated with computer use as well as Dr Middleton’s finding of a frank disc prolapse. Putting these controversies to one side, Dr Hwang remained of the opinion as to the plaintiff’s capacity for the suitable identified employment arising from the aforementioned Recovre reports.
102In his report dated 3 March 2020, Dr Hwang wrote that the plaintiff should avoid repetitive forward bending. He thought he “may have limitations with regard to heavy manual handling, prolonged sitting and whole body vibration. As previously noted, as a general guide, I was of the opinion that regular lifting limit of 5 kgs and occasional limits of 8 kgs is reasonable.”[130] As to the type of jobs that might amount to suitable employment, Dr Hwang wrote:
When commenting on suitable occupations, I noted that previously I considered him suitable for occupations such as product assembler, car park/gatehouse attendant or light machine operator, or customer service. In response to further information, I noted that the following were also identified.
· Electronic Process Worker
· Packer
· Rental Sales Person
I considered that these were within his physical capacity. Mr Dohnt’s main barrier to return to work would appear to be that he did not wish to engage in alternate employment as this was not his usual occupation. It is possible that claims related matters may also be a barrier.
I have had further consideration about potential occupations. I consider that he would also have partial capacity to undertake light delivery duties such as of small parcels or pathology. However, noting his limitation with regard to prolonged sitting his capacity to undertake such duties may be limited to approximately 20-hours a week.[131]
[130]Exhibit D1, DCB 186.
[131]Exhibit D1, DCB 186.
Nabenet 27 March 2020
103On 18 March 2020 Nabenet was requested by the defendant’s solicitors to complete a Suitable Employment Report, addressing job options that would accord with those identified by Dr Hwang in his report dated 3 March 2020. Nabenet furnished a report dated 27 March 2020 in response to the request. It undertook worksite assessments of real jobs corresponding with Dr Hwang’s report and identified as suitable employment:
(i) Product assembler/production worker;
(ii) Hire controller/rental sales officer;
(iii) Weighbridge operator; and
(iv) Packer.[132]
[132]Exhibit D2, DCB 189-190.
104On 16 September 2020, Nabenet was requested by the defendant’s solicitors to complete a further report on job options that might meet the employment options identified as being suitable by Dr Hwang in his report dated 3 March 2020. The report’s author also observed that Dr Hwang wrote in his report dated 3 March 2020 that:
My opinion with regard to capacity for work remains consistent with that noted previously. From a physical point of view I consider that he may have limitations with regard to heavy manual handling, prolonged sitting and whole body vibration. As previously noted, as a general guide, I am of the opinion that a regular lifting limit of 5kgs and occasional limit of 8kgs is reasonable.
With regard to repetition, I consider that avoidance of repetitive forward bending would be appropriate. If suitable duties were available within the limitation as described above, I do not consider there to be a time limitation.[133]
[133]Exhibit D2, DCB 201.
Dr Hwang’s Post Nabenet reports opinion
105In his final report dated 24 November 2020, Dr Hwang addressed the state of the plaintiff’s progress since his previous assessment and observed that, whilst there had been no significant change in relation to the plaintiff’s ongoing symptoms, he had not obtained any further treatment and had ceased physiotherapy due to a termination of funding. Mr Hwang noted that the plaintiff and his wife had recently purchased their new property in Bacchus Marsh and had partially relocated from their home in St Albans. He reported that the plaintiff had undertaken some painting of the new home but undertook the work slowly and was self-paced. He continued to enjoy his hobby of “Diamond Dotz” and, more recently, had commenced riding pushbike with a friend. Dr Hwang noted that the plaintiff’s back pain increased for the first 5 to 10 minutes whilst riding but then eased off, and he would ride for a total of one hour with a total distance covered of approximately 20 km. Dr Hwang said the plaintiff told him that he “feels good after this.”[134]f
[134]Exhibit D1, DCB 215.
106Dr Hwang recorded that the plaintiff had undergone some degree of increased physical activity, and that despite his general symptoms having remained unchanged, he had not required further treatment and he was not on any regular medications. His opinion remained unchanged that the plaintiff had the capacity to undertake the listed occupations.
107Dr Hwang commented on the two reports from Nabenet. He wrote that the report of 27 March 2020 provided a description including pictures of work duties involved with that of a:
(i) product assembler/product worker
(ii) hire controller/rental sales officer
(iii) weighbridge operator; and
(iv) packer.[135]
[135]Exhibit D1, DCB 218.
108Dr Hwang wrote that the description of the roles fell within the limitations he specified in his report dated 3 March 2020.
109Dr Hwang went on to note that the Nabenet report dated 29 September 2020 provided further worksite assessment for a:
(i) packer
(ii) sales coordinator/customer service
(iii) gatehouse attendant/site welfare officer
(iv) weighbridge operator.[136]
[136]Exhibit D1, DCB 218.
110Dr Hwan considered that the description of the roles fell within the limitations he specified in his report dated 3 March 2020.
111As to the roles of product assembler and packer, Dr Hwang observed that if the specific duties required constant standing over a prolonged period of time, then the plaintiff’s physical tolerance for undertaking such activities or duties may be reduced. He thought that an accommodation in the form of rotating or varying his duties to enable him to change his posture regularly may be helpful.
112Of the roles in rental sales, as a weighbridge operator, sales coordinator/service and that of gatehouse duties, Dr Hwang expected it to be the case that each of the jobs would provide flexibility to move about and alter the plaintiff’s posture throughout the course of a shift and, therefore, he did not consider any special flexible accommodation would be required.
113With regard to the roles of product assembler and packer, Dr Hwang noted that employers vary greatly in terms of their willingness to provide flexibility.
Plaintiff’s evidence on suitable employment capacity arising from the Nabenet reports
Product assembler
114The plaintiff was cross-examined about the job of a Product Assembler paying $20.70 per hour or $786 gross per week. The identified employer is a large manufacturing wholesaler of custom-made window furnishings. Duties predominately are focussed on the manufacture of shutters. Duties are typically rotated. The Nabenet author identified the duties and tasks associated with the position as follows:
Duties/Tasks:
Rail drilling, Tension drilling (Stile Drill tension), Mortiser (Groove machine) and Louver Hole drilling: involves applying the piece of material towards the drill part, ensuring stabilisation of the material within the area, inserting the correct dimensions into the computer and operating the machine via various foot pedals, buttons and levers. The production worker must monitor the machine and remove the piece of material once operation has finished.
Cutting of materials: applying materials along the assembly line and ensuring stabilisation. Inserting cutting dimensions into the system and monitoring processes.
Style marking: marking of finished products with labels, codes etc.[137]
[137]Exhibit D2, DCB 190.
115The demand and required tolerances for the performance of the job is expressed as follows:
Sitting is not typically required.
Standing/Walking is frequent when walking around the factory space.
Navigating stairs is not typically involved.
Bending/squatting/kneeling is rare but may involve lifting items from floor height to standing bench height.
There is occasional lifting – waist to waist height materials (up to 3kg).
There is occasional bilateral carrying (up to 3kg).
There is occasional reaching when handling products from machine.
Pushing and pulling is not typically required.
Fine motor skills are required as there is a frequent need when placing cutting and drilling materials, and when inputting settings into computer console.
Driving is not typically required.
Whilst no formal education/qualifications are required for this role, previous experience in a similar production role is regarded as beneficial.[138]
[138]Exhibit D2, DCB 191.
116There is a requirement for use of a machine console for inputting settings for cutting drilling. The report’s author observed that the plaintiff would receive on the job training in machine operation.
117The items handled typically weigh 3kg which is within the recommended lifting capacity for the plaintiff.
118There is no prolonged sitting requirement. The production worker role is primarily performed standing. There is no exposure to whole-body vibration as part of this role. Any bending/squatting/kneeling requirement is rare.
119The production worker role is a full-time role.
Lettuce packer
120The plaintiff was also cross-examined about the job of a Packer paying $22.00 per hour. The identified employer is a lettuce leaf processing facility located in Bacchus Marsh. Hand Packers are responsible for packing lettuce which has been washed and spun by machinery and weighed appropriately. The author identified the duties and tasks associated with the position as follows:
Duties/Tasks:
Quality Control duties which involves removing damaged or substandard product as well as identifying any foreign objects within the processing facility to ensure hygiene standards and quality produce.
Leading Hand duties involves printing labels, closing boxes, completing paper work, filling customer orders, checking pallets, electronic data entry and record keeping electronic/manual. Not all packers are required to complete leading hand duties.
Taking an empty box from the dispensary weighing less than 1kg and placing it on scales to be automatically filled with lettuce leaves, once filled the box weighing less than 4kg is placed onto the pack line
Some areas of the processing facility pack lettuce leaves into tubs which weigh 2.2kg and are approximately 7kg once filled.
Remove 7kg filled tubs of lettuce leaves from spinning machine to be placed on packing line.[139]
[139]Exhibit D2, DCB 203.
121The demand and required tolerances for the performance of the job is expressed as follows:
Sitting is not typically required.
Constant standing and frequent walking is required.
Navigating stairs is not typically required and only occasional bending is required. Squatting or kneeling is not typically required.
Carrying is frequently required with a weight range of 1 to 7kg. Empty boxes/tubs are 1 to 2.2.kg. Filled lettuce leaf tubs are 4 to 7kg.
Occasional lifting is required from waist to floor height of 4 to 7kg when placing packed boxes onto pallets.
There is occasional reaching and push/pull force required.
Pushing and pulling is not typically required.
Fine motor skills are frequently required
Driving is not typically required.
Whilst no formal education/qualifications are required for this role, on the job training is provided.[140]
[140]Exhibit D2, DCB 203.
122The items handled typically weigh 1-7 kg which is within the recommended lifting capacity for the plaintiff.
123There is no prolonged sitting requirement. The packer role is primarily performed standing. There is no exposure to whole-body vibration as part of this role. Any bending/squatting/kneeling requirement is not typical.
124The packer role was identified as a permanent full-time or casual role with varying commencement times depending on season.
Weighbridge operator
125An assessment was completed for a Weighbridge Operator at an employer located in Deer Park. The job is a full-time position, typically working from 7am to 3.30/4pm. The average full-time wage for the role is a minimum of $950.00 per week or $49,400 per annum (gross). The work is performed in an indoor office environment with frequent exposure to an outdoor quarry site when walking between main reception office, completing site inductions, and checking truck loads.
126A Weighbridge Operator is responsible for operating a weighbridge and carrying out various administrative tasks in the weighbridge office. The role is based in a small office located at the entrance and at the exit of the quarry. Truck Drivers are required to stop and weigh the truck at this point and it may either involve the truck driver entering the office or the Weighbridge Operator will communicate with the truck driver via the service window. A Weighbridge Operator is responsible for completing the ticketing and scheduling of incoming and outgoing trucks, preparing, and processing dockets and processing transactions.
127Further duties include:
· Manage reception at the quarry office including meet and greet, site inductions, couriers and mail handling;
· Raising purchase orders, work orders, compiling spreadsheets and reports on a computer;
· Purchasing, invoicing and maintenance of all purchasing records including invoicing and order tracking including hard copy documents and computer reports;
· Handle sales including banking summaries.[141]
[141]Exhibit D2, DCB 211.
128The critical demands and required tolerances of the job require:
· Frequent sitting when completing computer-based tasks (ability to alternate with standing as required).
· Frequent standing when communicating with Truck Drivers either in the office or via the service window.
· Walking between offices and during site inductions.
· Stairs: Occasional steps into the office and when performing site inductions.
· Bending/squatting/kneeling arises occasionally when receiving mail, accessing sundry items below waist height in the office.
· There is a requirement for occasional lifting/carrying sundry items typically weighing less than 5kg.
· Reaching is occasionally required when handing dockets to truck drivers
· Pushing and pulling are not typically required.
· Fine motor skills are required, frequent with computer use and handwriting, use of stapler etc.
· Driving is not typically required.
· No formal qualifications/education required.
· Strong administration experience is desired as well as intermediate level computer literacy.[142]
[142]Exhibit D2, DCB 211-212.
129There is a requirement for use of a computer in the role. There is on the job training provided in use of the company software, however an intermediate knowledge of computers is required as a starting point. This is something the plaintiff lacks.
130There is a frequent sitting requirement when sitting in the weighbridge office, however there is frequent opportunity to stand and walk when greeting visitors to site, communicating with truck drivers and performing on site inductions. There is no exposure to whole-body vibration as part of this role.
131There is no requirement for repetitive bending as part of this role. Any bending is occasional in nature and does not require any heavy lifting. The weighbridge operator role is a full-time role.
Defendant’s submissions
132Ms Cooper submitted that the plaintiff’s own evidence established that he possesses a prima facie physical capacity to perform manual work. Ms Cooper relied on a number of tasks associated with each of the three jobs that that were put to the plaintiff and he agreed he could perform or at least have a go at depending on the individual prevailing circumstances at a given time. Ms Cooper relied on two jobs in particular as falling within the plaintiff’s capabilities, those of a Production Assembler and a Weighbridge Operator with a possible third job being that of a Lettuce Packer.[143]
[143]T55-56
133Ms Cooper addressed the question of the plaintiff’s reliability in attending to full-time employment in the identified jobs. To some degree Ms Cooper’s submission pressed the point that the extent of the plaintiff’s reliability and consistency in employment had not been tested since the date of his injury because according to Dr Hwang, the plaintiff had a reluctance to try other work which is at odds with the plaintiff having volunteered in answer to Ms Cooper when asked about some suggested suitable employment that he would be willing to “give it a shot.”[144]
[144]T10, 12, 23, 25, 27, 31 and 33.
134In my judgement, the making good by a plaintiff of his unreliability or inconsistency in being able to undertake suitable employment cannot be met by assertion alone, but it must be evaluated by dint of what evidence there is of the extent of any likely unreliability, and this would include a consideration of the nature of the injury suffered, its diagnosis and prognosis, the nature of the work duties proposed to amount to suitable employment and, perhaps too, the nature and extent of activities of everyday life.
135Ms Cooper referred to extensive radiological investigation that had been undertaken and which by reference to the reports of Dr Sullivan,[145] Mr Gardiner,[146] Professor Joubert[147] and Mr Carey[148] culminated with a diagnosis of what is an essentially soft tissue injury and an aggravation of lumbar spondylosis or degenerative disease.
[145]Exhibit P4, PCB 82
[146]Exhibit P7, PCB 144.
[147]Exhibit D3, DCB 136.
[148]Exhibit P11, DCB 178.
136Ms Cooper also relied on the review of the plaintiff by Mr Bittar, in addition to Mr Carey, the latter of whom saw the plaintiff in February 2020, and who considered that the right leg pain was likely referred from the back rather than being radicular, along with an absence of any neurological deficit or radiculopathy and the lack of any recommendation for surgical intervention.[149]
[149]Exhibit P11, DCB 178.
137Ms Cooper submitted that there is an absence of evidence to suggest that the state of the plaintiff’s lumbar spine is such that if he were to return to work in suitable employment, he would risk causing himself a further spinal injury.
138Ms Cooper made a number of submissions regarding the plaintiff’s limitations stemming from his oral evidence, and these included, that he can stand almost indefinitely, he can walk for one to two hours, he can lift and carry 10 kilograms, he walks the children to school and to the shops each day (a distance of about one kilometre each way) and he cooks dinner for the family every night, along with doing housework and light gardening. In essence, Ms Cooper submitted that the plaintiff has demonstrated a significant retained capacity for light work.
139Ms Cooper submitted that in assessing the opinions of the plaintiff’s treating doctors and medico-legal authors, none had considered any of the jobs put forward by Nabenet in their two reports. Ms Cooper is correct, nonetheless, Dr Mehr and Dr Middleton did consider the Recovre reports, which although not in evidence, contained examples of some of the roles that Nabenet subsequently identified as suitable jobs and upon which the defendant relies.
140As to the plaintiff’s treating general practitioner, Ms Cooper argued that Dr Reid presented his opinions in a way that proved unhelpful in addressing the plaintiff’s capacity for suitable employment. I understood counsel’s submission about Dr Reid to embrace the criticism that the limitations he identified incorporated an array of limitation on almost every conceivable activity of daily life, a number of which were not, however, borne out by the plaintiff’s testimony and, moreover, Dr Reid’s reporting and opinions did not grapple with whether the expressed limitations may nonetheless, not impede or preclude the plaintiff for work in suitable employment or that they might be able to be accommodated by working around them. Certainly Dr Reid’s limitations were extensive and did not address if a retained capacity prevailed for some form of suitable employment.
141By contrast, Ms Cooper referred to the reporting of Dr Hwang who diagnosed the plaintiff with lower back pain radiating into the right leg, which diagnosis consistent with the opinions relied on by the plaintiff.
142In 2020, Dr Hwang formed the view that the plaintiff’s restrictions were limited to those of prolonged sitting and heavy manual handling, restrictions that Ms Cooper submitted, essentially mirrored the plaintiff’s oral evidence of his limitations.
143Ms Cooper submitted that the plaintiff accepted in response to questions put to him by her that he can do some light lifting. He accepted that he is able to sit for short periods, and Ms Cooper submitted that Dr Hwang looked at various job options having regard to the plaintiff’s capacities. Nabenet in turn identified jobs that Ms Cooper submitted also fall within the restrictions set by Dr Hwang and that constitute suitable employment, namely Product Assembler, Weighbridge Operator and, perhaps, Lettuce Packer.
144Ms Cooper acknowledged that a key concern raised by the plaintiff with the lettuce packer job is that he would be required to carry seven-kilogram boxes, which he said he would not be able to do all day. Although the Nabenet report identified that in some areas of the processing facility lettuce leaves are packed into tubs which weigh 2.2 kilograms, and that are approximately 7 kilograms once filled, Dr Hwang’s opinion is that the plaintiff could occasionally lift eight kilograms.
145Ms Cooper next addressed the job of Product Assembler. The job’s location is within the plaintiff’s accepted driving range, and Ms Cooper pointed out that when the tasks of the job were put by her to the plaintiff in cross-examination, he accepted that if he was shown how to do them, including entering data into a computer, “he would give it a shot.”[150] Ms Cooper addressed the plaintiff’s evidence that apropos the product assembler job, he would not be able to hold material under tension in that job; however, Ms Cooper noted that the Nabenet report does not refer to a requirement to hold material under tension. I note however that it does refer to “tension drilling”.[151]
[150]T25.
[151]Exhibit D2, DCB 190.
146Ms Cooper did not press the job of Gatehouse Operator as suitable employment because it required basic office skills including a knowledge of computer programs such as Word and Excel and Ms Cooper did not suggest that the plaintiff should be taken as able to be retrained to such a level that the job would amount to suitable employment.[152]
[152]T61-62.
147Ms Cooper submitted that the job of a Weighbridge Operator falls squarely within the plaintiff’s capacities and also draws on his previous experience as a truck driver. The job is located in Deer Park, just over a half hour away from the plaintiff’s residence in Bacchus Marsh. Ms Cooper put the tasks of the role to the plaintiff. He expressed concerns about some computer use. Ms Cooper submitted that the job description indicates basic computer use by putting data into a computer, perhaps walking from one site office to another, completing some ticketing and scheduling and greeting some incoming and outgoing visitors and dealing with incoming and outgoing trucks. Ms Cooper argued that this is a job that would allow the plaintiff to stand up and sit down and move around. It also is a job that would allow him to be outside on occasions, something which the plaintiff said he enjoys.
148Although the job contemplates a need to move between site offices and do some walking, Ms Cooper submitted that the plaintiff says he walks one to two kilometres each day and he can walk for up to two hours.
Consistent and reliable
149Ms Cooper submitted that in being able to be satisfied of the plaintiff’s reliability in suitable employment on a consistent basis, and therefore be able to sustain a full-time role, that in circumstances where there is no structural damage to the spine, and subjective pain is the only limiting factor, it can be difficult to know what the plaintiff is capable of unless he actually tries employment. But in addition, Ms Cooper referred to the surrounding circumstances of the plaintiff cooking dinner every night, and walking to school every day and shopping each day. Ms Cooper submitted that there is an absence of any evidence that multiple days a week the plaintiff’s back pain prevents him from performing these activities. She added that there is an absence of evidence for example, that every afternoon, the plaintiff needs to lie down and rest due to pain. In addition, he is not taking strong painkillers which would render him a danger at work or reduce his ability to concentrate. Ms Cooper submitted that although there were approximately a half a dozen hospital admissions in 2016 and 2017 for back spasm there is no evidence of any further admissions since then.
150Finally Ms Cooper submitted that whilst there are no doubt days when the plaintiff finds his pain is worse, he still goes about his normal daily duties at home and, in counsel’s submission, occasions of increased pain does not mean that the plaintiff would be regularly unable to attend work.
Plaintiff’s submissions
151Mr Brett contested that the plaintiff is able to drive at will and possesses a clear concentration as reported by Dr Hwang. Mr Brett submitted that the plaintiff’s driving ability has improved due to coming off medication but that the evidence does not support an unfettered ability to drive at will.
152Mr Brett relied on the plaintiff’s affidavit sworn 11 February 2021, in particular, at paragraph 6:[153]
The constant back pain that I suffer varies in intensity. My back pain is more severe about four days of the week. On these days my ability to engage in activity is very restricted. My sleep is still interfered with by my back pain. I can usually get to sleep, initially, however I find that I wake 3 or 4 times a night with back pain. I find it difficult getting back to sleep after waking and I rarely get an uninterrupted night’s sleep. I wake up most days feeling unrefreshed and fatigued. My back condition is very unpredictable. I never know from one day to the next when my symptoms will be worse. This makes planning very difficult. I am now unreliable in that I never know from one day to the next what I will be able to commit to.
[153]Exhibit P1, PCB 13.
153Mr Brett submitted that the plaintiff’s evidentiary account should be treated as an honest account and that the plaintiff was not challenged about its veracity and that despite a degree of robustness and regularity on his part in undertaking and discharging a number of daily recurrent domestic activities without any undue interference being caused to them by pain, there is an important distinction between performing domestic activities and being required to discharge duties and tasks on a consistent and reliable basis in an employment setting on a full-time basis. Mr Brett referred to the plaintiff’s answer to him in re-examination when asked about the housework that, “I can take my time.”[154]
[154]T39.
154Mr Brett addressed several of the jobs identified by the defendant. As far as the job of Lettuce Packer is concerned, he argued that it involved frequent lifting and that it is fair to imagine that if an employee is being paid to hold a tub of lettuce while it is filled up automatically and then to shift that tub weighing seven kilos when filled, it is reasonably likely that the task will be required to be performed repeatedly and at a fast pace. He submitted the role was not suitable employment and would likely contravene the regular lifting restrictions recommended for the plaintiff.
155Mr Brett submitted that the plaintiff’s lack of grasp with computers is relevant because of a requirement in the job of a Product Assembler for use of a machine console and the inputting of settings for cutting and drilling, together with the use of fine motor skills described as “frequent when placing cutting and drilling materials, when inputting settings into computer console.”[155] Mr Brett referred to the plaintiff’s evidence regarding his computer course that required only a commitment of an hour-and-a-half a day and how the plaintiff explained, “I can take up to a whole day if I want”[156] to complete set tasks. Mr Brett submitted that no such latitude could reasonably be expected in a workplace.
[155]Exhibit D2, DCB 191.
[156]T39.
156Mr Brett submitted that the requirements for the job calling for the application of fine motor skills and frequent computer use and handwriting, reinforced the focus of the job as an office job, and is not suitable employment and amounts to a “whole career shift”.[157]
[157]T78.
157Mr Brett submitted that in broader terms, the job of the Product Assembler attending to window furnishings required the operation of pedals, and for a plaintiff who presents with symptoms of referred pain extending down his right leg and who has a limp, a job requiring such application would be almost certainly unsuitable on a fulltime ongoing basis.
158Mr Brett addressed the role of a weighbridge operator. He referred to the duties and tasks of the position.[158] He submitted that it is a job that requires the incumbent to spend his time in an office as well as meeting and greeting visitors, and managing reception. Mr Brett compared this to the work the plaintiff performed as a truck driver. He highlighted a lack of evidence of the plaintiff’s capacity to get on with strangers who might present with perhaps difficult queries requiring the plaintiff’s answer and response. He referred to the duties as well involve ticketing and scheduling of incoming and outgoing trucks and computer-based tasks of some moment including the use of spreadsheets that taken together paint a picture of a job which is well outside what the plaintiff has ever performed, which has been to sit inside a vehicle, whether it was a forklift in his early days, or a truck in more recent years, on his own, doing what needs to be done to control that vehicle.
[158]Exhibit D2, DCB 211-212.
159Mr Brett submitted that it is not sensible to suggest that it is suitable employment to require the plaintiff to sit in office, deal with paperwork, handle queries, examine inside trucks, deal with whomever comes to the door in a polite and appropriate manner, regardless of whether his back is giving him difficulty or pain at the time.
160Separately from the individual jobs relied on by the defendant, Mr Brett said it was a matter of some significance that Dr Reid, the plaintiff’s GP, who had been seeing him since his injury, does not believe that the plaintiff has any work capacity.[159]
[159]Exhibit P2, PCB 34.
161Mr Brett also referred to an earlier opinion from Dr Sullivan of the possibility that the plaintiff could do up to 20 hours of sedentary employment but who, in his most recent report of November 2020,[160] did not believe that the plaintiff had a realistic work capacity.
[160]Exhibit P4, PCB 79.
162Mr Brett submitted it was an exercise in distraction, if not obfuscation, to regard certain of the plaintiff’s reports as unhelpful because they do not descend to express opinion on the plaintiff’s functional capacity to perform some or all of the duties relied on by the defendant in the two Nabenet reports. Mr Brett submitted that is sufficient for instance that Dr Mehr and Dr Middleton’s opinions have been expressed on the overarching basis that the plaintiff does not have a capacity to attend any work reliably and consistently and certainly not on a full time basis.
What is suitable employment and how is applied?
163The term “suitable employment” is defined as:[161]
[161] Section 3 of the Act.
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
a.having regard to the following—
i.the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
ii.the nature of the worker’s pre-injury employment;
iii.the worker’s age, education, skills and work experience;
iv.the worker’s place of residence;
v.any plan or document prepared as part of the return to work planning process;
vi.any occupational rehabilitation services that are being, or have been, provided to or for the worker;
b.regardless of whether—
i.the work or the employment is available; or
ii.the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes—
c.employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
d.employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
e.suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education.
164The definition of “suitable employment” is applied as an objective test that looks at the worker’s current suitability for work (including alternative work), taking into account matters such as age, education, experience and whether the work is a reasonable distance from the plaintiff’s place of residence.[162]
[162]Barwon Spinners v Podolak (2005) 14 VR 622, [25], [28]; [2005] VSCA 33 (“Barwon Spinners”); Aluthgamage v Select Care Personnel Pty Ltd (2012) 35 VR 494, [47]; [2012] VSCA 111; Victoria v Rattray [2006] VSCA 145, [16].
165In Barwon Spinners[163] the Court of Appeal noted that the term “suitable employment” looks at the physical capacity of a plaintiff to work, rather than whether employers, due to risk management concerns, would employ the plaintiff. Subsequently in Richter v Driscoll[164], Ashley and Kaye JJA affirmed that a prospective employer’s unwillingness to hire the worker because the worker has been off work receiving compensation payments was not relevant to assessing whether a person had current work capacity.[165] However, and pertinent to the way in which this application was ultimately distilled before me, their Honours also held that it was necessary to take a holistic view of the suitability of employment, rather than physical capacity alone. For their Honours, this included taking into account that the worker had been out of work for 20 years due to an incapacity which had been compensated, as this would affect whether the worker had a merchantable ability.[166] Their Honours also noted that the definition of suitable employment looked at matters such as the worker’s age, training, experience and the location of suggested work relative to the worker’s place of residence. They concluded that the definition of suitable employment involves a focus on whether the worker, following the injury, has “merchantable skills”.
[163](2005) 14 VR 622, [27]-[28], [74].
[164][2016] VSCA 142, a case on entitlement to statutory benefits.
[165]Ibid, [97].
[166]Ibid, [104]-[106]. See also Lang v Spendless Shoes Pty Ltd [2019] VSC 376, [44]-[64]; Conroy v Romas [2019] VSC 695, [72]-[73].
166In Harris v DJD Earthmoving Pty Ltd,[167] a case concerning a serious injury application, and delivered very soon after the decision in Richter v Driscoll was published, Warren CJ and Cavanough AJA assumed that the test for suitable employment was one of “physical capacity” and not “employability”.[168] The Court noted that the matter had not been squarely addressed by the parties and, in any event, did not find that Richter v Driscoll affected the outcome. However, the Court noted that:[169]
Further, there are indications in Richter v Driscoll, especially at [80], that their Honours did not consider that Barwon Spinners required that a different approach be taken to the question of ‘suitable employment’ in serious injury applications.
[167][2016] VSCA 188.
[168]Ibid, [49], (footnote 59).
[169]Ibid.
167The Court of Appeal has subsequently affirmed in Dundar v Bas[170] that while Richter v Driscoll was a case which involved a Medical Panel’s reasons, its conclusions about the assessment of work capacity and suitable employment are of general application and are to be applied in all cases.
[170][2019] VSCA 315, [52].
168Accordingly, having regard to the applicable legal reasoning as explained by the Court of Appeal, and after having assessed the worker’s earning capacity in suitable employment, I am then obliged to:
… demonstrate by [my] statement of reasons that [I] had considered in detail what, if any, specific job or jobs [the worker] might, in the future, be able to do on a regular and systematic basis allowing for such improvement as might be thought likely or possible… [and] identify at least one particular full time job which could be regarded as ‘suitable employment’ for [the worker] and which [the worker] had failed to show would be beyond him for the foreseeable future.[171]
[171][2016] VSCA 188, [49].
Analysis and reasoning in regard to the identified suitable employment.
Product assembler
169As to the job of Product Assembler, the plaintiff has no experience in the inputting of settings to a console. It is unclear how and to what extent this entails a computerised operating system. The plaintiff was at pains to reinforce in his response to questions put to him in cross-examination by Ms Cooper that he is fundamentally computer illiterate. He has a Facebook page but he said that he never posts to it because he has no idea how to do so. He is able to use his phone keyboard for texting and use his iPad for Google searches. I accept that his skills in this regard are very limited.
170On the other hand, I do not accept that the absence of the plaintiff having previously worked in a factory setting alone amounts to a disentitling consideration for it to amount to suitable employment. Indeed, the fact of the job typically involving a rotation of duties is a favourable consideration
171I have had regard to the lack of a requirement for formal educational qualifications required for the role, although previous experience in a similar production role would be seen as “beneficial”. This is something the plaintiff lacks.
172I have also considered the physical limitations that Dr Hwang considered warranted. Dr Hwang considered a regular lifting limit of 5kgs and occasional limit of 8kgs is reasonable. The job identified that items handled typically weigh 3kg.
173There is no prolonged sitting requirement either, with the production worker role primarily performed standing up. Any bending/squatting/kneeling requirement associated with the job of Product Assembler would appear to be infrequent.
174There is no reason for me to conclude on balance that the nature of the plaintiff’s pre-injury work in forklift driving and in trucks is a disinhibiting factor when assessing the job’s suitability overall and neither is his age. I appreciate that Mr Brett submitted that the proposed job shares nothing in common with the plaintiff’s pre-injury work but I am not satisfied that because the plaintiff has no capacity for pre injury type work that it must inevitably follow therefore that there cannot be identified suitable alternative employment.
175I have taken into account that the plaintiff was only educated to Year 10. In cross-examination the following exchange occurred and is relevant:[172]
Yes, my writing and reading knowledge ain’t – I can read and write, but it’s not that crash hot. I can’t spell.
But you have basic reading and writing skills, don’t you? ---Yes.
You’re able to complete a handwritten truck log, for example, when you were a truckie? ---Yeah, it’s not hard to do.
[172]T32.
176The plaintiff’s place of residence is a favourable consideration.
177However, in addition to a lack of previous experience, the potential use of computerised console settings and the inputting of the same together with the task of operating the machine via various foot pedals, something that appears to me at least to involve the plaintiff with a real and substantial risk of encountering difficulty given his referred leg pain, that on balance and overall, I am not satisfied that the job is suitable employment.
Lettuce packer
178I am not satisfied that the job of lettuce packer is suitable employment. There is a real risk of weights exceeding the expressed limitations recommended on a regular as opposed to an occasional basis.
Weighbridge operator
179In its separate reports, Nabenet conducted a site analysis of the job of weighbridge operator. The first of these is in Epping. It is a fulltime job with an average minimum wage of $950.00 gross per week. The job is performed in a factory setting. I do not regard the plaintiff’s preference to be able to work outside as a disentitling consideration for the employment but the requirements identified such as conducting site inductions, raising purchase and work orders, compiling spreadsheets and reports on a computer, having responsibility for purchasing, invoicing and maintenance of all purchasing records including invoicing and order tracking both hard copy documents and computer reports, as well as handling sales including banking summaries, is well beyond the plaintiff’s ken.
180The other site visit for a weighbridge operator occurred in Deer Park. The overview of the workplace and role of the weighbridge operator is described in the Nabenet report as carrying out various administrative tasks at the employer’s quarry based in a small office located at the entrance and at the exit of the quarry. Truck Drivers are required to stop and weigh the truck at this point and this can either involve the Truck Driver entering the office or the Weighbridge Operator communicating with the Truck Driver via a service window. The Weighbridge Operator is responsible for completing the following tasks:
·Manage reception at quarry including meet and greet of visitors.
·Completing the ticketing and scheduling of incoming and outgoing trucks.
·Preparing and processing dockets and processing transactions. This requires operation of a computer to enter data related to the weight of the truck and the product in the truck.
· The Weighbridge Operator is able to move around the office to complete administrative tasks and to speak with the truck driver if they come into the office.[173]
· Previous experience in administration is considered an advantage. Basic computer skills are required.[174]
[173]Exhibit D2, DCB 211.
[174]Exhibit D2, DCB 212.
181I am not satisfied on the evidence that the plaintiff is equipped to undertake other than rudimentary and non-computerised administrative tasks.
The plaintiff’s pain and its inhibiting effect
182It is by no means a criticism of the defendant’s case that there was a concentration by it on some relatively benign and functional requirements and duties attendant certain aspects of the jobs relied on as suitable employment. However, the determination of the outcome of the plaintiff’s application is not to be resolved only by a comparative assessment of competing medical and occupational specialist opinions. Cases must be decided on the whole of the evidence.[175]
[175]Davies v Nilsen & Anor [2014] VSCA 278, [95].
183I have already observed that the plaintiff’s honesty was not challenged by the defendant. However, his willingness or enthusiasm to embrace alternative employment was. The issue to my mind is very much reduced to whether I should accept the plaintiff’s account of pain and the account of its interference to his life on an irregular but recurring basis, including his account of the debilitating effect that his pain can have on him as recounted in his affidavit or, whether that account should be subjugated to any residual concern I harbour of the plaintiff’s expressed reluctance to return to work in endeavours other than that which he was accustomed to in his pre-injury working life.
184I have also considered that for the plaintiff’s account of the experience of pain there is to be measured against it the fact that he manages a good number of everyday domestic activities including some painting about the home and some recreational pursuits such as his bike riding. However, I agree with Mr Brett’s submission that the ability to undertake some parenting and some domestic duties that can be done at a measured pace and sporadically as with the painting or the occasional bike riding, and can be paused and recommenced at the plaintiff’s discretion, is measure for measure something which does not readily sit alongside the obligation to undertake the duties of a full-time job of work 38 hours a week, 5 days a week.
185I accept the plaintiff’s account of his disturbed sleep. Ms Cooper submitted that many people encounter disturbed sleep and are not excused from the ongoing burdens and demands of the workplace. This is true. However, the question I must not lose sight of, is that the disturbed sleep has occurred in consequence of a compensable injury, and the measure of its effect in the determination of a serious injury application is how it may impact the plaintiff’s capacity for suitable employment.
186It might appear that due to the frequency with which plaintiffs claim interrupted sleep as a serious consequence stemming from their work injury, that the oft‑quoted comment by the learned President of the Court of Appeal in Haden Engineering Pty Ltd v McKinnon[176] might seem to have been elevated to a rule of law. Of course, it has not. Nonetheless, the frequency of its reference should not itself diminish its pertinence, and it may be thought not unusual that pain or, worse, chronic pain, will lead in many cases to sleep disturbance. When this occurs, its significance was well expressed by Maxwell P who said:[177]
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep”.
[176][2010] VSCA 69.
[177]Ibid, [45].
187Other than Dr Reid, whose opinion of the plaintiff’s limitations and restrictions are to some extent unhelpfully couched in all-embracing language, there is the other evidence that I have referred to comprising the opinions of Dr Mehr and Dr Middleton, who on the whole I accept and prefer to Dr Hwang, which is that at best the plaintiff has a limited capacity and only for sedentary work at very modest part time hours. I prefer their opinions because in my judgement they grapple more fundamentally with the plaintiff’s limitations and the functional requirements required of him to both perform and reliably sustain full time employment.
188I acknowledge Ms Cooper’s submission that the plaintiff’s capacity will not be able to be determinatively tested unless he attempts employment, but I do not believe that such a gamble is an appropriate approach to determine the plaintiff’s capacity for suitable employment and a loss of earning capacity. Neither do I regard the plaintiff’s expressed willingness to give some jobs “a shot” in response to certain questions about some elements of them that he said would or could try as determinative of the question. After all, in the real world such jobs as were identified by the defendant, cannot sensibly be regarded as affording the job holder a discretion to pick and choose the less demanding from the more demanding aspects of them each.
189I have also paid regard to and considered Ms Coopers’ submission that the plaintiff has expressed to examiners and in court a reluctance to take up employment otherwise than of the type he had been employed in in the past. Had I assessed the plaintiff’s evidence to which Ms Cooper directed me as more than an unenthused and hesitant approach on his part to jobs markedly different from his working background, and in fact evidence of an unwillingness absent his expressed limitations to take up employment, then I would have so found. However, in adopting a whole of evidence approach, and given that I accept the truthfulness of the plaintiff’s account of the interference and effect on him of his pain and of the suddenness and uncertainty of its impact on him, I am satisfied that he has established that he lacks a capacity for full-time employment in suitable employment and that this will continue into the foreseeable future. I am therefore satisfied that the plaintiff has proved that he is incapable of earning more than $660.00 per week on a permanent basis.
190In the event I am wrong in my acceptance that the plaintiff is incapable of performing work in such jobs as the defendant identified, I am satisfied he would be incapable of performing such duties for the requisite number of hours each week on a reliable and consistent basis for the reasons I have expressed above. As a result the plaintiff has made good his claim for a serious injury certificate for loss of earning capacity of 40% or more.
191Once the threshold of 40% reduction in earning capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the “very considerable” test. Given my acceptance that the plaintiff’s injury prevents him from reliably returning to suitable employment on a fulltime basis, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as very considerable.
192I will hear the parties on the final form of order and direct that a proposed minute of order be provided within 7 days of today.
.
0
12
0