Dourley v Australian Urethane and Styrene
[2020] VMC 26
•29 October 2020
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKERS COMPENSATION DIVISION
Case No. J13136842
| ANDREW PETER DOURLEY | Plaintiff |
| v | |
| AUSTRALIAN URETHANE & STYRENE PTY LTD | Defendant |
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MAGISTRATE: | M. HOARE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 – 18 September 2020 |
DATE OF DECISION: | 29 October 2020 |
CASE MAY BE CITED AS: | Dourley v Australian Urethane & Styrene |
MEDIUM NEUTRAL CITATION: | [2020] VMC 026 |
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CATCHWORDS – Workers Compensation – Accepted lumbar spine injury – Termination of weekly payments of compensation beyond 130 weeks – No current work capacity – Current work capacity - Suitable employment – Alleged failure to make reasonable efforts to return to work - Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss. 3, 10(b), 111-116, 163(1), 266(1)
APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Ms C. Wiltshire | Zaparas Lawyers |
| For the Defendant | Ms K Galpin | Hall & Wilcox |
HER HONOUR:
INTRODUCTION AND OVERVIEW
Some ten years ago, Mr Andrew Dourley, the plaintiff in this proceeding, suffered a significant lumbar spine injury in the course of his employment as a delivery driver/forklift operator with Australian Urethane & Styrene Pty Ltd, the defendant. Mr Dourley stopped work immediately and has not resumed any form of paid employment since that time.
The injury occurred on 12 February 2009 after Mr Dourley had been unloading a truck. He experienced acute low back pain as he went to get onto a forklift (‘the injury’). Mr Dourley’s claim for weekly payments of compensation and medical and like expenses was accepted (‘the claim’). In August 2009, he underwent an L5/S1 micro-discectomy.
In 2013, his weekly payments were terminated upon a decision of the WorkCover Agent that Mr Dourley had a current work capacity. However, a Medical Panel was of the opinion that Mr Dourley had no current work capacity which was likely to continue indefinitely. His weekly payments were then reinstated.
In 2018, his payments were again terminated upon a decision of the WorkCover Agent of 27 June 2018 that Mr Dourley either has a current work capacity, or, alternatively, he has no current work capacity which is not likely to continue indefinitely (‘the June 2018 notice’). It is this termination of payments that is the subject of this dispute.
Mr Dourley seeks reinstatement of his weekly payments of compensation and the proceeding is brought under the Workplace Injury Compensation and Rehabilitation Act 2013 (‘the Act’).
The defence case was that Mr Dourley was no longer incapacitated for work. Additionally, it was alleged that Mr Dourley had not complied with his obligations in Division 3 of ‘Part 4 – Return to Work’ of the Act (‘the Division 3 defence’). An injured worker is required to make reasonable efforts to actively participate and cooperate in planning for return to work: s.111.
There was no dispute as to the following steps having been taken by the defendant after issuing the June 2018 notice:
a.Arranged in August 2018 via its occupational provider for Mr Dourley to attend a ten-week computer course. (He didn’t attend that course because of a pre-planned family holiday.)
b.Extended the effective weekly payments termination date from 13 October 2018 to 29 December 2018 to allow time for him to attend a later computer course (in a letter of 2 October 2018).
c.Determined that Mr Dourley had, by not attending the computer course in October, not complied with his Division 3 obligations, and again allowed more time, failing which payments would be suspended from 26 November 2018 (in a letter of 19 October 2018).
d.Allowed further time to attend the computer course, failing which payments would be suspended from 3 December 2018 (in a letter of 26 November 2018).
e.Determined that Mr Dourley had not complied with his Division 3 obligations in not attending the computer course, and therefore suspended weekly payments as of 8 December 2018 (in advance of the revised termination date of 29 December 2018).
Conducted over three days via WebEx, oral evidence was given in the proceeding by Mr Dourley as well as by his wife Ms Lisa Dourley. The only medical practitioner to give evidence was his treating GP, Dr Margaret Costello. All other material was tendered into evidence by consent.
In my opinion, for the reasons which follow, Mr Dourley should have the relief which he seeks on the basis that he has no current work capacity which is likely to continue for the foreseeable future.
THE EVIDENCE
10. Given the nature of the issues in dispute, it is convenient to consider the evidence in this matter in chronological sequence.
11. Living in the Gippsland township of Yinnar, Mr Dourley is aged 52 years. He is married with two primary school-aged children, both with autism spectrum diagnoses. Yinnar is about 20 kilometres from Morwell.
Education and Work Experience
12. Mr Dourley completed his education part way through year 9. After leaving school, he worked in a series of manual jobs including as a factory hand and as truck-driver/forklift operator.
13. In the late 1990s, Mr Dourley worked as a factory hand for about three years with a company that assembled sound equipment such as juke boxes. Around that time, Mr Dourley also ran a side business assembling and renting out juke boxes and party equipment. He wound that business up at about the time he began working for the defendant.
14. In 2005, Mr Dourley commenced permanent full-time employment with the defendant as a forklift operator/truck driver.
Injury
15. In 2008, Mr Dourley had a brief episode of work-related back pain and lost a few weeks from work.
16. The injury that is the subject of this proceeding occurred on 13 February 2009 when Mr Dourley was stepping onto a forklift. Mr Dourley experienced the immediate onset of acute sciatic pain. He ceased work that day. Mr Dourley was under the care of his GP, Dr Jeysingham, until about 2016. Following an L5/S1 micro-discectomy surgery performed on 23 August 2009 by Mr Craig Timms, neurosurgeon, Mr Dourley initially had a good result in terms of relieving his acute leg pain and he weaned himself off medications such as Endone.
17. He has, however, had ongoing back pain. He has not seen Mr Timms for several years.
Subsequent events and treatment
18. After the 2013 termination of weekly payments, the Medical Panel Opinion of 27 May 2014 was that Mr Dourley was suffering from persistent dysfunction following a left sided L5/S1 disc extrusion treated surgically, relevant to the claimed injury. The Panel further opined that: ‘there was no work for which the plaintiff is currently suited and which he could perform on a reliable and consistent basis’.
19. In 2014, Mr Dourley, with his wife and children, relocated from Pakenham to Yinnar.
20. From October 2016, Mr Dourley has been under the care of his present GP, Dr Costello.
Current circumstances and condition
21. Mr Dourley thought his condition had been slowly getting worse over the last few years. He has more difficulty walking, standing and playing with his children. There were things he could do a few years ago that he finds more difficult now or can no longer manage. He finds it harder to put on his pants and shoes. He used to mow his lawn but no longer does that. He used to enjoy family camping trips.
22. He can sit comfortably for about 30 minutes. After about 60 minutes, his legs become numb and tingly and he develops a shooting pain in his left leg which at times develops in the other leg. Only lying or reclining will relieve the pain. He has a recliner chair that distributes his weight away from his low back.
23. His daily routine involves rising at 7 am, having a hot shower, waking his daughters, making their school lunches and driving them to the nearby bus-stop. He might go to the post office before returning home. He spends the day doing light household chores such as cleaning up after breakfast or preparing the evening meal. He alternates the chores with reclining in this chair. He was responsible for cooking most evenings, but not every night. If he overdoes things, he experiences a sensation of tightness around his chest. His sleep is affected, and he experiences wakefulness and has difficulties getting comfortable in bed.
24. Since the onset of the COVID-19 pandemic, the need to supervise his children’s online learning has created considerable strain and fatigue. He does two days of this and his wife does three days. The children require additional support because of their autism spectrum diagnoses. Prior to the pandemic, carers and health practitioners attended the house for respite and therapy for the children.
25. Mr Dourley described his concentration as being impacted. In order to cope with the pain, he switches his brain off by staring the television. He is more forgetful. He will open the refrigerator and forget what he went to take out.
26. Ms Lisa Dourley, the plaintiff’s wife, worked full-time in a HR role with a local employer. She had begun working full-time around the time that her husband’s payments were terminated. She gave evidence that her husband had been a physically active person when she met him some 15 years ago. She observed now that he struggled to get out bed in the morning and tires easily. He walked with a limp. He was not able to play with the children. He had to alternate between sitting and standing. Her husband used to cook the evening meal most nights some years ago, but gradually that has changed so that she does more of the cooking than she had been.
27. In recent years, Mr Dourley, who has an interest in music, has spent time teaching himself chords on the guitar, the harmonica and the mandolin mainly through watching online videos. He did this seated in his recliner chair. He had become involved in local community group that met for music workshops for an hour or two a month in the local pub, playing and teaching each other instruments. He receives no payment for this activity. Mr Dourley did not know if the group would resume meeting when the COVID-19 restrictions eased. In cross-examination, he agreed that on one occasion in early 2020, he had played the mandolin as part of this group at a local folk music festival. The performance was at 9:30 on a Saturday morning and lasted for about 15 minutes.
28. In terms of other activities, he walks a little with his family. He sometimes went camping and fishing before the pandemic, although camping mainly involved sitting in a reclining camping chair.
29.By way of current treatment, Mr Dourley no longer takes medication. In cross-examination, he disagreed that he preferred to be in pain rather than take pain-killers. He does not take even paracetamol other than rarely and occasional tramadol. He had last taken tramadol a few months ago. He worries about the side-effects as medication does not agree with him. He agreed it was possible he may have taken his wife’s Panadeine forte when he fractured a bone in his foot in 2019 and, if he done so, it was because it was a temporary injury whereas he had back pain all the time. Taking pain-killers masked the pain so he did things such as roll over in bed which caused more problems.
30.In cross-examination, Mr Dourley said he was told after the August 2019 MRI that his condition had worsened. When asked whether activity had caused the deterioration of his condition, he said the degeneration was a matter of science. He said he was told by his physiotherapist that he would be lucky if he was not in a wheel-chair by the time he was 65 if he didn’t look after himself.
31.In mid-2018, Mr Dourley had developed increasing mental health issues. He was frequently irritable and angry. He tended to withdraw from the family. He obtained a referral from Dr Costello in relation to anxiety and depression. However, he could not get into see a local psychologist, and so he began to consult a psychologist, Mr Eric de Bruin, via his wife’s EAP (employee assistance program). Mr de Bruin had helped him with mindfulness strategies for managing anxiety. Mr Dourley agreed that in June 2020 he had told Dr Costello his anxiety had almost gone and that his pain was still present but easier to cope with.
32.Ms Dourley was asked about her observations of any changes in her husband’s mental state. She said he could be reclusive at times and tended to withdraw from the family and from friends. She agreed that before the pandemic, he had sometimes socialised with local people through a shared interest in music. In cross-examination, she agreed in that since commencing treatment with Mr de Bruin, he had appeared less anxious.
Work Capacity
33.In 2018, the request of the WorkCover Agent, Mr Dourley participated in a return to work program run by Work Able Consulting in Morwell (‘Work Able’). He went to about five meetings over some months and worked on a resume and identifying transferrable skills and the types of employment that might be open to him given his physical restrictions.
34.Mr Dourley’s reading and writing skills were average. He does not read a newspaper because he has trouble concentrating and becomes dizzy. He was a one finger typist. He could type an email slowly if he is seated in his recliner chair. He could type perhaps a paragraph before needing to rest. If he has his arms in a position to use a keyboard for any length of time, he developed an ache in low back and shoulders. At another point in his evidence, he said he could type for a few minutes but after a short amount of time, he would develop an aching pain and tingling in his arms. In re-examination, he said using computers was uncomfortable for him. He got headaches and his eyes hurt.
35.In terms of past experience with computers, he agreed he had assembled computer-operated juke boxes when he had operated his side business. In the early stages after his injury, he had been keen to build on that prior knowledge of computers and data bases. However, his work with that kind of equipment was long ago. Over the years, that sort of equipment had changed considerably. His knowledge would now be out-dated. Mr Dourley also doubted whether he could cope with that that work physically as it involved bending and reaching with screw-drivers etc. He thought he could possibly assemble one machine over a month stretching it out.
36.When asked about how motivated he was to find employment, Mr Dourley said he did not have any motivation because he did not believe he could work again due to his levels of pain, his lack of energy and difficulties concentrating. In relation to a capacity to return to employment, Mr Dourley thought there were tasks he could do, but nothing he could do all day. He did not think he could work even part-time hours. This view was based on when he did do things around the house such as light chores, he would have to stop and start and also take rests. He said that if he could work, he would.
37.Ms Dourley was asked about to her observations of Mr Dourley’s use of a computer. She said he could send an email and use the internet. She tended to be the one who would email the WorkCover Agent or Work Able on his behalf. This was because Mr Dourley wouldn’t know what to say or how to put it. She didn’t think he had ever been fully computer literate. When Mr Dourley had operated the side business, Ms Dourley had done administrative tasks such as issuing invoices, although she agreed he was already in the process of winding the business up when they met. Before they had met, Ms Dourley believed he had used someone else to do the books and administration.
38.In cross-examination, Mr Dourley said that for the past ten years, he done everything asked of him by the WorkCover Agent with integrity. After the Medical Panel Opinion of 2014 had led to his weekly payments being reinstated, he had believed he would continue on payments until he was aged 65 years.
Work Able Computer Course
39.In cross-examination, Mr Dourley agreed that the extension of his payments by ten weeks (from 14 October to 29 December 2018) was predicated upon attendance at the computer skills training course nominated by Work Able. The course, at a local community house, involved a two-hour session once a week that was originally to start in August 2018.
40.On 15 August 2018 Mr Dourley consulted Dr Costello and the following note was recorded by her: ‘Some days can type for 10 mins only, sitting only in ordinary chair recliner longer. Can only stand for short while. Cannot walk around factory. Concentration problems limit work suitability. Pain is constant nag. Form completed not suitable for jobs listed nor typing to attend computer course’. The course was, in any event, deferred until October due to the family holiday. His wife had telephoned Work Able to say he wouldn’t be doing the course.
41.On 27 September 2018, Mr Dourley attended a Work Able meeting and the computer course was discussed. As to whether he told the Work Able consultant that he may not need to go to the course, Mr Dourley’s recollection was that he had told the consultant everything was subject to medical advice.
42.In cross-examination, Mr Dourley said that when arrangements were being made for the computer course, he was feeling upset and stressed and even angry regarding the termination of his payments. He was worried about the mortgage they had taken on in purchasing the house in Yinnar. In response to questioning as to his understanding regarding the ten-week extension of his weekly payments being conditional on his attending the computer course, he again said he had thought he would be on weekly payments until he was 65 and that, in any event, he had had the notice that his payments would be terminated.
43. On 10 October 2018, the day before the October course was due to start, Mr Dourley saw Dr Costello who noted that the WorkCover Agent had extended his weekly payments from the original termination date if he attended the computer course. She recorded that Mr Dourley was ‘not able to sit for 2 hours at a time let alone type. Effort on consecutive days is very draining. … pain and weakness down left side. Not fit to attend course’.
44. When asked why he did not start the computer course on 11 October 2018, Mr Dourley said, because it was against medical advice and he was already in dispute with the insurer over return to work. Mr Dourley conceded, in cross-examination, he had made no enquiries of Work Able to help ascertain his capability to do the course, for example whether he could stand instead of sit. He said he needed to be reclined and that two hours of typing was too much. He disagreed that he had made up his mind that he would not attend the computer course even prior to consulting with Dr Costello. He disagreed that he gone to see Dr Costello specifically to get her approval to do the course. He said he wanted Dr Costello’s advice.
45. On 27 November 2018, Dr Costello wrote to the WorkCover Agent 27 November 2018 advising: ‘This man is not fit to attend the computer course in Churchill. He cannot concentrate due to pain. He cannot type. His employment opportunities will not be enhanced by attending this course’.
46. Mr Dourley was cross-examined as to how he could teach himself musical instruments but could not have managed a two-hour computer course. He agreed this demonstrated that he was capable of learning new skills, at least as a hobby. He agreed he was able to concentrate enough to play the guitar, to twang away at it, as he put it. He thought he could do this for one hour but not two hours. In answer to how, if he could sit for one hour and play guitar, he could not do a two-hour computer course, he responded with, how much pain was he supposed to put up with. As to how he could attend the local music workshop sessions but not the computer course, he said he didn’t always go the music sessions, or he could go home early. He agreed it took concentration to play chords. He denied that he was exaggerating his problems with concentration.
47. In cross-examination, it was noted that Mr Dourley had been sitting in his chair participating in the court proceeding without apparent discomfort. In relation to driving, he agreed he had driven continuously to attend medico-legal appointments in Melbourne, a journey time of about three hours. If he had had to do that, he would ensure he stopped on the way home and did not drive continuously without a break. He said he had pleaded with the WorkCover Agent to arrange a medical examination closer to his home.
MEDICAL EVIDENCE
48. Dr Vithura Jeyasingham, former GP, provided background reports dated 12 July 2011, 24 August 2011 and 28 October 2011. Mr Mark Eibl, former physiotherapist, provided a report dated 8 December 2011.
49. Mr Craig Timms, former treating neurosurgeon, had written letters to the WorkCover Agent seeking approval of the lumbar micro-discectomy surgery and a post-operative report to Dr Jeyasingham dated 22 September 2009. At that stage, Mr Dourley had been doing exceptionally well with vast improvement in his symptoms.
50. Dr Margaret Costello, GP, provided reports dated 1 October 2018, 27 November 2018 and in March 2020 (incorrectly dated 1 October 2018). Dr Costello considered that Mr Dourley continued to suffer from back pain, bilateral leg pain and weakness down his left side. His capacity for any manner of exercise was limited as he became easily fatigued and needed to rest for portions of each day. There had been no improvement since November 2018 when she had written to the WorkCover Agent advising against him attending the computer course.
51. Dr Costello arranged imaging of Mr Dourley’s lumbar spine including a CT scan in September 2018 and an MRI scan in August 2019. She did not make any referrals for specialist treatment as his condition had been stable. As to why she had not arranged investigations in relation to reported symptoms of neck pain and numbness and tingling in his hands, she said in re-examination this was because in her opinion these symptoms were part of his chronic pain presentation.
52. In cross-examination, Dr Costello agreed her assessment of Mr Dourley’s impaired concentration was based on what he had told her. She had not done any psychological testing nor any objective measurement of pain levels. When it was put to Dr Costello that she had simply accepted what she had been told by Mr Dourley, she said that she believed her patients. When questioned as to whether she was aware that he had acquired new skills in recent years, she said she believed he had taken up the guitar and the ukulele, but she couldn’t say whether he had any particular skills with the instruments. Dr Costello disagreed strongly that her assessment of Mr Dourley was based purely on what he told her. Her assessment was based on seeing him, observing him and performing GP exams. She was absolutely supportive of injured workers getting back to work.
53. In relation to the WorkCover certificate of capacity forms, she completed those on each occasion by asking Mr Dourley questions about his ability to bend, squat, kneel, lift etc. Regarding his reluctance to take medication, she believed he had taken stronger opiates in the past which did not agree with him. She said it was not her practice to prescribe anti-inflammatory medications. She always recommended patients take paracetamol for pain relief.
54. In relation to capacity for work, Dr Costello thought Mr Dourley’s back pain would continue indefinitely and would prevent him from holding down a permanent position of any kind. This was due to pain and to impaired concentration which was pain-related. That would be the case even if an employer allowed rest breaks and there was appropriate ergonomic furniture. Mr Dourley’s age and place of residence were further hindrances to employment and travelling was not advisable for him. She considered he had no capacity for employment on a permanent basis. As for appropriate physical restrictions, she agreed, in broad terms, with those formulated by Dr Slesenger, occupational physician, such as limits on repetitive bending and twisting. However, she would place additional ten-minute limits to sitting and standing and, rather than a 5 kg weight limit on lifting and carrying, she would prefer there be no lifting.
55. Dr Costello was cross-examined regarding her opinion as to the fitness or otherwise of Mr Dourley to do the Work Able computer course. She agreed that Mr Dourley had first consulted with her about the course in August and then on 10 October 2018. Mr Dourley had complained of aching hands and arms and weakness of the whole left side of the body including neck, shoulder, arm and leg. Mr Dourley had reported that he could not sit for two hours and could not type without discomfort. She thought he would have been given rest-breaks. She had had another patient who had done a similar sort of course and upon completion, that patient, who had had nowhere near the problems of Mr Dourley, had not been able to obtain employment. Regarding the lack of computer skills being an impediment to Mr Dourley’s suitability for some of the Work Able job options, Dr Costello disagreed strongly. Dr Costello’s opinion was that even if Mr Dourley had the necessary computer and other related skills, he still could not perform the roles identified by Work Able. This was because of the physical restrictions of his back condition. She disagreed that acquiring computer skills would enhance his employability or that he could perform any of the roles identified by Work Able.
56. As for Mr Dourley’s mental health, she agreed that he had consulted with Dr de Bruin. Mr Dourley had reported that Mr de Bruin had helped with his anxiety levels. In her opinion, however, his anxiety condition was not so much gone as managed and his mental state was in fact less improved than he himself believed it to be.
57. Mr Eric de Bruyn’s clinical records were tendered, however he did not provide a report because he had advised he was precluded from doing so under the terms of engagement given the original consultations were under an EAP program attached to Mr Dourley’s wife’s employment.
58.Dr Joseph Slesenger, occupational physician, provided reports dated 22 March 2019 and 21 November 2019 at the request of Mr Dourley’s solicitors. He examined Mr Dourley on 20 March 2019. Mr Dourley gave a clear and consistent account of his injuries with normal affect and good eye contact. The surgery had been partially successful in relieving his leg symptoms, but his back pain had persisted. Mr Dourley had never been referred to a pain clinic. Mr Dourley’s back pain, which has deteriorated over the past nine years, was constant, moderate to severe, aggravated by activity and cold weather. The left leg on the other hand was intermittent and aggravated by activity. He has gained 20 kilograms in weight. He has sleep apnoea for which he has a CPAP machine. His walking tolerance was 15-30 minutes. He could stand for 10 minutes and sit for up to 60 minutes. He could drive for up to 60 minutes. He did light household tasks slowly and by pacing his activities. Dr Slesenger’s diagnosis was of a surgically-operated mechanical injury to the lumbar spine involving aggravation of degenerative disease as well as chronic lower back pain. He found an absence of significant non-organic features and that the residual impairment was organic in nature. The prognosis overall was guarded because of the duration of the impairment and disability as well as, what Dr Slesenger termed, negative prognostic factors including his psychological co-morbidity and current job detachment.
58.Regarding work capacity, Mr Dourley had not undergone re-training. He could send an email but not use an excel spreadsheet. The following restrictions were advisable: pushing, pulling, carrying or lifting over 5 kgs; repetitive bending or twisting prolonged exposure to whole body vibration and prolonged static posture. Taking into account Mr Dourley’s age, residential location, his past occupational experience, his computer and literacy skills, his qualifications and his current symptoms and functional limitations, Dr Slesenger was of the opinion that Mr Dourley was unlikely to be able to return to work in a role for which he has suitable training and experience on a consistent and reliable basis.
59.Dr Slesenger considered specifically each of the job options identified by Work Able in reports dated 1 April 2016, 13 June 2018 and 18 July 2018. These were
i.Medical typist;
ii.Transport/booking coordinator;
iii.Customer services officer;
iv.Warehouse/factory order clerk; and
v.Equipment/machinery hire assistant.
60.In Dr Slesenger’s opinion, the first three job options were not suitable for Mr Dourley due to a lack of relevant experience and lack of computer skills. The last two job options were not advised due to lack of relevant experience, lack of computer skills and the potential for manual handling being required. Dr Slesenger also reviewed the job options identified by Work Able in its report of 20 September 2019. These were essentially the same job options as previously identified other than an administrative assistant being substituted for the medical typist option. Again, Dr Slesenger advised against the suitability of these job options due to lack of experience, lack of computer skills and, additionally, in relation to the warehouse/factory order clerk and equipment/machine hire assistant roles, the potential requirement for manual handling beyond Mr Dourley’s capacity.
61.Dr Hazem Akil, neurosurgeon, provided a report dated 13 March 2019 at the request of Mr Dourley’s solicitors. Mr Dourley reported significant and constant lower back pain that is worse with sitting and standing than with lying and residual left leg pain of variable severity. Dr Akil’s diagnosis was of discogenic lower back pain originating from the L5/S1 disc space with persistent left S1 radiculopathy. Dr Akil thought Mr Dourley would in the future most likely require a surgical fusion of his L5/S1 segment. Mr Dourley was restricted by a sitting tolerance of 30 minutes, standing of 10 minutes and in terms of lifting, bending, twisting and stooping. Taking into account Mr Dourley’s age, education and the chronicity of his back injury, Dr Akil could not really see him doing any other type of work or suggest any kind of employment that could be suitable for him.
Dr Alan Gallogly, psychiatrist, provided a report dated 23 January 2020 at the request of Mr Dourley’s solicitors. Dr Gallogly obtained a detailed history including that Mr Dourley had experienced pervasive low mood with anxiety and irritability over the past decade (since the time of the injury). There had been a deterioration in Mr Dourley’s mental state including increased anxiety and irritability following the termination of his compensation payments. Dr Gallogly’s diagnosis was of an adjustment disorder with mixed anxiety and depression associated with difficulty concentrating, irritability, withdrawal. With such a mental state, Mr Dourley would not be a reliable and consistent member of the workforce. From a psychiatric perspective he would not be fit to engage in employment taking into account his age, work background, place of residence and work experience. Mr Dourley’s psychiatric prognosis was unfavourable and would follow the prognosis for his physical injury.
Dr Malcolm Brown, occupational physician, provided reports dated 17 April 2018 and 19 June 2018 at the request of the WorkCover Agent. Dr Brown examined Mr Dourley and obtained a detailed history. Mr Dourley had in recent years gained about 20 kgs in weight. Mr Dourley’s clinical presentation compared favourably with that at the time of the 2014 Medical Panel examination and Dr Brown found there had been significant improvement since then. Mr Dourley had an excellent range of movement and had almost completely ceased the tramadol that he had been taking in 2013. Mr Dourley had capacity to engage in retraining and a current work capacity for full-time work which did not involve constant static standing, frequent bending or lifting. Mr Dourley had the capacity to perform any of the five job options identified in the Work Able reports of 1 April 2016 and 13 June 2018 on a full-time basis.
Mr Peter Scott, general surgeon, provided a report dated 6 June 2019 at the request of the defendant’s solicitors. Mr Dourley reported post-operative improvement of the left-sided sciatica and some improvement in back pain, however within 18 months to two years, he had increasing backache, left leg numbness and a reduced standing tolerance. He took Tramadol as needed and occasional Panadol. Mr Dourley had driven from Yinnar to Melbourne for the interview (a three-hour journey) and symptoms were aggravated. Mr Dourley complained of persistent chronic low back pain within limited tolerance for standing (10 minutes), sitting (10-20 minutes), repetitive bending or lifting greater than 10 kilograms in weight and left lower limb discomfort as well as chronic fatigue, depression and anxiety, poor concentration, headaches, poor memory and chest tightness. Mr Dourley had a 50% reduction in all directions of lumbosacral spine movements. Mr Scott diagnosed chronic low back pain and associated discogenic disease of the lumbosacral spine with recurrent or persistent left lower limb radiculopathy. He suspected that there may be an anxious nervous or depressive factor which required clarification by a psychiatrist. Mr Dourley, who was genuine and well-motivated, had an ongoing organic disability who had been unable to return to the work force. He would be able to participate in a rehabilitation or re-training program with a view to obtaining suitable employment in the future.
Dr Michael Baynes, occupational physician, provided reports dated 9 July 2019 and 30 September 2019 at the request of the defendant’s solicitors. Subsequent to reported improvement post-surgery particularly of decreased sciatic pain, there had over the years been ongoing back pain which was worse with sitting and standing. He had never undergone any pain management. He had reduced tolerances for standing (10 mins), sitting (1 hour) although he had driven non-stop for three hours from home to attend the appointment that day and walking (20 mins). Dr Baynes diagnosed a chronic pain syndrome associated with chronic lower back pain with some referred pain into the legs in association with an operated L5/S1 disc protrusion with S1 nerve root impingement. Dr Baynes found no objective evidence of radiculopathy on clinical examination and some evidence of positive Waddell’s signs (an indicator of non-organic or psychological component to chronic back pain). Mr Dourley had a capacity for sedentary or alternative employment with restrictions on lifting and bending and for alternating between sitting and standing and walking. He could return to work on a limited basis of around 20 to 25 hours a week. Regarding the job options identified by Work Able, Mr Dourley could do those roles on a part-time basis provided he could rotate postures and use a sit/stand desk. He had capacity to undergo rehabilitation and re-training.
ANALYSIS
Onus of Proof
In this case, Mr Dourley had been in receipt of weekly payments of compensation until it was alleged by the WorkCover Agent that there had been a change in his medical condition which justified termination of his payments.
A long line of authority makes it clear that, in cases of this kind, it was for the worker to establish a prima facie case that no suitable employment existed in relation to him. On the other hand, the evidentiary onus was upon the defendant to raise as a real possibility that there were particular types of employment available in the community which the plaintiff was capable of performing[1].
The Law
[1] His Honour Judge G Lewis in Cox v TCC [2000] VCC 42; T&G Industries Pty Ltd v Randjelovic [2006] VSC 316 at [6]; Public Transport Corporation v Pitts [2007] VSC 356 at [17]; Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120; Weldemichael v ID Sales & Repairs Pty Ltd [2019] VSCA 68
The Act provides that there is no basis for weekly payments of compensation beyond 130 weeks unless the worker has ‘no current work capacity’ and is likely to continue indefinitely to have no current work capacity: s.163(1). The Act defines ‘no current work capacity’ to mean: ‘a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment’: s.3
The term ‘suitable employment’ is also defined and means ‘employment in work for which the worker is currently suited’ having regard to the factors set out in paragraphs (a) to (e) of the definition: s.3. These include, at paragraph (a):
(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.
The governing principles regarding the concepts of ‘no current work capacity’ and ‘suitable employment’ were made clear by the Court of Appeal in Richter v Driscoll[2]. His Honour Kaye JA (himself a member of the Court of Appeal in that case) held in a later case that the propositions arising out of Richter v Driscoll are as follows:
a. As a matter of statutory construction, the definition of ‘No current work capacity’ requires that there be an injury-caused inability to return to work in employment.
b. The focus is upon an inability to return to work or engage in employment as a settled or established member of the wage-earning workforce.
c. A return to work in employment requires more than a physical capacity to engage in the particular tasks that constitute that employment.
d. Regard must be had to the entirety of the worker’s personal circumstances, including both the injury-caused capacity and other circumstances personal to the worker bearing on his ability to work in the particular form of employment as a settled member of the workforce.[3]
[2][2016] VSCA 142 at [74]-[75].
[3]Menzies Aviation Group (Australian) Pty Ltd v Vegter [2018] VSC 130 at [62]
A key objective of the Act is to make provision for the effective occupational rehabilitation of injured workers and their early return to work: s10(b). Obligations towards a return to work fall on both employers and injured workers. These obligations are contained in ‘Part 4 – Return to Work’: employers in Division 2 and those of workers in Division 3. In broad terms, injured workers must make reasonable efforts to actively participate and cooperate with planning for a return to work: s.111. Employers must, to the extent that it is reasonable to do so, provide suitable employment: s.102
A worker’s non-compliance or failure to meet with the obligations under Division 3 has consequences. Non-compliance may be grounds for termination, suspension or ceasing and determining the entitlement of the worker to compensation: s.116(1).
Submissions of the Plaintiff
Mr Dourley, it was submitted, has an injury-caused inability to return to work in employment on a consistent and reliable basis. The relevant factors are:
· His age of 52 years,
· His minimal formal education (leaving school before completing Year 9) and lack of further qualifications or training;
· His location in regional East Gippsland;
· His physical limitations for manual handling as well as for sitting and standing and driving;
· His almost exclusively manual pre-injury work history as a factory hand, labourer and driver/fork-lift operator;
· His psychological deterioration;
· His extended detachment of more than 11 years from the workforce and consequential de-conditioning;
· Lack of attractiveness to a prospective employer given his time out of the workforce.
74.The weight of the evidence, it was submitted, particularly that of Mr Dourley, of his wife and of his GP, supported a finding that the plaintiff has no capacity for suitable employment. In spite of the attack on his credit, Mr Dourley’s evidence should be accepted as credible and reliable. If the defendant’s attack on Mr Dourley’s credit was taken to its natural conclusion that he was ‘putting it on’ or embellishing his symptoms and limitations, it would follow that amongst the medico-legal assessments arranged by the defendant, there would be findings of functional overlay behaviours. However, there was an absence of any such suggestion. Furthermore, although the defendant’s court book had indicated that it had in its possession surveillance film, no such evidence was relied upon in the hearing.
The organic and persistent nature of Mr Dourley’s low back condition was significant and relevant to any determination as to the extent of any incapacity relevant to the legislative definition of ‘suitable employment’. The plaintiff’s evidence which included the opinion of a neurosurgeon should be preferred on the question of diagnosis. Dr Akil had diagnosed discogenic lower back pain originating from the L5/S1 disc space with persistent left S1 radiculopathy. The defendant’s evidence, by comparison, was deficient in relying only upon occupational physicians and a general surgeon (Mr Scott).
Dr Costello’s evidence represented an astute assessment of Mr Dourley’s clinical condition and his capacity for employment based on a continuous treating relationship of over four years. Her knowledge of Mr Dourley’s personal circumstances was based on her own observations and clinical assessments over that time. An example was her unprompted reference to Mr Dourley having taken up the guitar. Mr Dourley remained under the care of a psychologist, Mr De Bruin, for mild depression and moderate anxiety. Whilst Mr Dourley had reported improvement in his anxiety, Dr Costello had considered the condition was being managed rather than having resolved.
None of the job options identified by Work Able, it was submitted, represented suitable employment for Mr Dourley given the factors referred to earlier and on the entirety of the evidence. Dr Costello was best placed, as the treating medical practitioner, to assess her patient’s true capability for work. Her evidence was that he could not do his pre-injury role nor could he do alternative roles due to his impaired concentration, a chronicity of pain and fatigue, memory problems and depression and anxiety being at times a feature of daily life. Dr Slesenger’s opinion that a lack of computer skills precluded three of the five job options as being suitable had to be read in the context of his opinion overall. This was that given Mr Dourley’s circumstances, current symptoms and functional limitations, he was unlikely to be able to return to work in a role for which he has suitable training and experience on a consistent and reliable basis.
Finally, it was submitted, on application of the guiding principles of Richer v Driscoll, a return to work in employment requires more than a physical capacity to engage in the particular tasks. The evidence was overwhelming that Mr Dourley had an injury-caused inability to return to work or engage in employment as a settled or established member of the wage-earning workforce.
As for the defendant’s contention that Mr Dourley’s not attending the computer course equated to a failure to make reasonable efforts to actively participate with planning for a return to work, that was unsupported by the whole of the evidence. Mr Dourley had made all reasonable efforts to comply with his Division 3 obligations. He had attended at least four out five of the Work Able sessions. In not attending the computer course, he was acting on the advice his GP. Dr Costello’s assessment as to the appropriateness of the computer course was evident in her clinical note of 10 October 2020 when she recorded ‘not able to sit for 2 hours at a time let alone type. Effort on consecutive days is very draining. … pain and weakness down left side. Not fit to attend course’. Whilst the course would not have been conducted on consecutive days, nevertheless, Mr Dourley had family responsibilities early the next day in caring for his children.
Submissions of the Defendant
Mr Dourley, it was conceded, continued to be affected by his compensable injury and had an inability to return to work in his pre-injury employment. However, the plaintiff had failed to establish a prima facie case that no suitable employment existed in relation to him. Instead, Mr Dourley had presented as determined not to do any work, not to re-train, not to take any analgesia to relieve his symptoms nor to take any steps which might improve his situation. The weight of the evidence supported a conclusion that Mr Dourley had an ability to perform suitable employment and had the capacity to perform the job options in the Work Able reports tendered by the defendant.
Furthermore, Mr Dourley had not made reasonable efforts to comply with his Division 3 obligations pursuant to s.114(3) of the Act. Mr Dourley’s persistent and unreasonable refusal to attend the computer course in spite of multiple extensions of time to do so represented a clear a failure or breach of his Division 3 obligations: s 114(3). On that basis, it was submitted, it was open to the Court to exercise its extended jurisdiction under the Act to cease and determine any entitlement that Mr Dourley might otherwise have had to weekly payments of compensation: ss.116(2) and 266(1).
Mr Dourley’s evidence of having a high degree of incapacity and a low level of ability to take up employment was not credible. Motivated by an entrenched sense of entitlement, Mr Dourley had embellished or fabricated his evidence towards achieving an outcome of reinstatement of his weekly payments. There were numerous examples of the plaintiff’s lack of credit as follows:
· Mr Dourley’s evidence of his incapacity was at odds with his demeanour during the hearing in which he was observed to sit without apparent discomfort whilst in court and giving evidence and getting out of his chair.
·On the first day, Mr Dourley had said he could not drive three hours without stopping. On the second day, he agreed that he could do so, but paid for it afterwards. He had demonstrated driving capacity of three hours when he attended the IMEs with Mr Scott and Dr Baynes.
·Examples of his embellishment were his florid and rhetorical responses in cross-examination, such as, ‘do I have to do things until I drop to the floor?’ and ‘how much pain am I supposed to put up with?’
·Mr Dourley told the Court he had been informed that his condition had worsened following the August 2019 MRI. In reality, the only doctor that has viewed Mr Dourley’s MRI was his GP, Dr Costello. It was inconceivable Mr Dourley had been told his condition had worsened and he was just making things up.
·Regarding his domestic situation, Mr Dourley’s evidence was that he was the primary carer for his children and had the majority responsibility for preparing the evening meal. No doctors were informed of these issues.
·The stark deterioration in his presentation in April 2018 at the time of the IME with Dr Brown (prior to the termination notice) and his presentation subsequently. Mr Dourley had reported to Dr Brown sleeping reasonably well, walking for half an hour but discomfort with stairs or prolonged sitting, being able to carry shopping and having resumed mowing and light gardening. By contrast, by January 2020, Mr Dourley was reporting to Dr Gallogly a tolerance for standing of ten minutes and that after 10 minutes of standing it would feel like he had run a marathon and that he could do light house work for about ten minutes before needing to rest. Also, Mr Dourley had given up mowing his lawn, after having previously resumed mowing the lawn himself and then only after the termination of his payments had begun making complaints of greater or increased incapacity.
·In relation to his ability to use computers, Mr Dourley put up multiple barriers. The question for the Court was whether it was his back or consequential mental condition that precluded his use of computers or whether it was other issues such as his eyes, headaches and arms. If the latter conditions, that was to be disregarded, as a matter of law. It was notable that not one doctor had been told of any issues with his eyes or arms.
·Regarding his mental fitness to attend the computer course, Dr Costello had written to the WorkCover Agent on 27 November 2018 that he ‘cannot concentrate due to pain’. However, Mr Dourley’s complaints of impaired concentration, were inconsistent with the findings of Dr Gallogly who, following an hour-long psychiatric assessment on 23 January 2020, opined that Mr Dourley had not cognitive defects and that his attention and concentration was maintained throughout the assessment.
·Complaints of impaired concentration were at odds with having become sufficiently accomplished at playing a musical instrument that he could perform in public. Similarly, Mr Dourley made complaints about a lack of concentration but demonstrated no such difficulty in giving evidence and under cross-examination.
Dr Costello’s evidence, it was submitted, lacked objectivity and should be given little or no weight as she was a ‘warrior for her patient’. She accepted what she was told by her patient, adopted it and reported it back to the WorkCover Agent, for example that he could not sit for two hours and could not type. Her clinical notes indicated no kind of physical examinations and no assessments of concentration levels. When Dr Costello originally saw Mr Dourley on 10 October 2016, she had recorded an entirely incorrect history (‘bent to pick up pen’). Thereafter her clinical notes regarding her attendances on Mr Dourley were very brief until after the June 2018 termination notice when the clinical notes became considerably more detailed. She obtained updated radiological imaging purely as part of the legal process and not as part of a clinical investigation.
Only Mr Dourley’s accepted back and mental condition could be taken into account in considering his ability to engage in employment or re-training and not unrelated conditions such as his arms and so on. This was in accordance with legal principles in cases such as Minter Ellison Services Pty Ltd v Kotzman[4] and Weldemichael v ID Sales & Repairs Pty Ltd[5] Further, there was no psychological basis that could explain Mr Dourley’s claimed incapacity for suitable employment or re-training. Dr Gallogly’s opinion was pre-dated his treatment with Mr de Bruin. Based on Mr Dourley’s own evidence he had recovered from any anxiety by June 2020.
[4] [2012] VSC 375
[5] [2019] VSCA 68
The defendant had discharged its evidentiary onus in tendering the Work Able reports that identified suitable job options taking into account Mr Dourley’s education, work history, his injury, his location and other factors. Two occupational physicians thought Mr Dourley could do any of the job options identified - Dr Brown, on a full-time basis and Dr Baynes, on a part-time basis (20-25 hours per week). Mr Dourley’s work history included building and assembling computer-operated karaoke machines and operating a small business including managing accounts and general administrative tasks. Dr Slesenger’s opinion that Mr Dourley could not perform those roles because of a lack of appropriate computer skills needed to be viewed in the context of his unreasonable refusal to do the computer course.
Findings
Credit of the Plaintiff
As always, in cases of this kind, the plaintiff’s credit was of critical importance, as has been noted by the Court of Appeal in a long line of authorities, including recently in Johns v Oaktech Pty Ltd.[6] In particular, in this case, medical opinions as to Mr Dourley’s ability or inability to engage in employment was based on his reported level of function, his symptoms and restrictions. Mr Dourley needed to persuade the Court that his evidence was credible and reliable. He had to establish the reliability of the histories he gave to the medical witnesses who opinions were premised on the accuracy of his accounts to them.
[6][2020] VSCA 10 at [76]
I do not disagree with the defendant’s submission that, under pressure of sustained cross-examination, the plaintiff at times gave accounts of his pain and level of function that could be described as florid. Indeed, under cross-examination, Mr Dourley was at times argumentative and even angry in answers such as, ‘how much pain am I supposed to put up with?’ or ‘it’s a matter of science’ in relation to the degenerative nature of his condition.
I also accept as likely the defendant’s submission that the plaintiff had formed a strong belief that he would remain on weekly payments following the Medical Panel Opinion of 2014. He referred to that belief more than once in evidence. He told the Court that when arrangements were being made for the computer course, he was upset and stressed and even angry regarding the termination of his payments. He was worried about the mortgage over the new home in Yinnar.
However, I formed the view that overall, having had the benefit of observing the plaintiff while he was giving evidence to the Court, he was doing his best to be co-operative and to give accurate answers to the questions. For example, he was open about acquiring skills in music, the music workshops and doing the household chores as far as he was able. It was not my impression that Mr Dourley was attempting to deliberately mislead the Court as to his symptoms or lack of work capacity. I have concluded that Mr Dourley was a credible and genuine witness based on not only on his own evidence, but after a consideration of all of the evidence, including the medical evidence regarding the long-standing organic nature of Mr Dourley’s spinal injury (about which I will say more) and particularly my assessment of Dr Costello’s evidence (which I will discuss further).
To the extent that there was a tendency to overstate symptoms or limitations, I am of the opinion this is most likely explained by the chronicity of his condition and to what Dr Slesenger termed his psychological co-morbidity. I agree with the plaintiff’s submission that were Mr Dourley consciously embellishing symptoms, there would be observations of functional overlay type behaviours amongst the six experienced medico-legal examiners who provided opinions in this case on both sides. Dr Baynes found no objective evidence of radiculopathy on clinical examination and some evidence of positive Waddell’s signs (an indicator of non-organic or psychological component to chronic back pain). However, notwithstanding some non-organic signs, Dr Baynes diagnosed a chronic pain syndrome associated with chronic lower back pain with some referred pain into the legs in association with an operated L5/S1 disc protrusion with S1 nerve root impingement. Mr Scott suspected that there may be an anxious nervous or depressive factor which required clarification by a psychiatrist, however he also thought Mr Dourley was genuine and well-motivated and had an ongoing organic disability who had been unable to return to the work force.
In relation to other matters of credit raised by the defendant, I do not attribute particular weight to Mr Dourley having sat through the proceeding without apparent discomfort. The proceeding stopped and started at different stages and due to the nature of online hearing there is only a line of sight from the chest upwards. In relation to driving, he agreed he had driven continuously to attend medico-legal appointments in Melbourne, a journey time of about three hours. He also said if he had done that on the way because of pressures of time, he would have breaks on the way home. He said he had pleaded with the WorkCover Agent to arrange a medical examination closer to his home. I found reasonable his explanations in relation to preferring not to take medication including that taking pain-killers masked the pain so he did thing such as roll over in bed which caused more problems.
Nature of Injury and Diagnosis
I turn next to the question of diagnosis of injury. Dr Akil was the only neurosurgeon to provide an opinion and I accept his diagnosis of discogenic lower back pain originating from the L5/S1 disc space with persistent left S1 radiculopathy. I also find, on the evidence of Dr Costello, the condition had over time led to the development of features of chronic pain. This was consistent with the opinions of Mr Scott and Dr Baynes. To the extent that Mr Dourley’s complaints in relation to pain were somewhat diffuse and extended to his neck, arms and heads, I find that such a presentation was consistent with a diagnosis and presentation of chronic pain.
I also find that Mr Dourley suffers from an adjustment disorder with mixed anxiety and depression based on the opinions of Dr Costello, Mr De Bruin and Dr Gallogly
Whether Mr Dourley has no current work capacity and is likely to continue indefinitely to have no current work capacity
In my view, in this case, the plaintiff has established a prima facie case that no suitable employment existed in relation to him in accordance with the principles enunciated in Richter-v-Driscoll[7]. Weighing the whole of the evidence, including his own evidence which I as I have said I largely accept and that of his GP, I am satisfied that Mr Dourley has an injury-caused inability to return to work as a settled or established member of the wage-earning workforce.
[7] [2016] VSCA 142 at [74]-[75].
I agree with the plaintiff’s submission that the chronicity of Mr Dourley’s surgically operated discogenic low back condition was highly significant to a determination as to the nature of his incapacity relevant to the legislative definition of ‘suitable employment’.
As for Mr Dourley’s psychological condition, I accept as likely Dr Costello’s view that Mr Dourley’s anxiety condition was not so much gone as managed and less improved than he himself believed it to be. In this regard, I note Dr Gallogly’s opinion that Mr Dourley’s psychiatric prognosis was unfavourable and would follow the prognosis for his physical injury. Therefore, I find that Mr Dourley’s accepted psychological injury is a material contributing factor to him being unfit to engage in suitable employment.
Having the benefit of observing Dr Costello while she was giving evidence to the Court, I formed the view that she was a plainly-spoken and no-nonsense person. In my opinion she was a credible witness. As Mr Dourley’s sole treating medical practitioner in a small regional community, I consider she has had ample opportunity over four years to arrive at a clinical assessment of Mr Dourley and to judge whether he was or was not genuine in his complaints and presentation. I am satisfied that Dr Costello’s evidence was based on her own observations and clinical assessments over that time. I do not accept that, because Dr Costello asserted in cross-examination ‘I believe my patients’, it followed that she did so without applying any objective or clinical judgement. I accept that she went through the check-list of what he could or could not do in signing off every certificate of capacity. Whilst it is true that her recorded clinical notes were far more detailed after the termination of payments, it is not evident that she was spending any less time with her patient prior to that time.
My impression of Ms Lisa Dourley, who largely corroborated the plaintiff’s evidence, was that she was truthful witness who gave her evidence in a matter of fact way with a rather flat affect. I accepted her evidence in its entirety.
Living 20 kilometres outside Morwell in regional Gippsland, Mr Dourley is now over 50 years of age. His formal education ended part way through Year 8. He acquired no further qualifications or formal skills apart from his forklift and truck-drivers licence which were relevant only to his pre-injury employment which the defendant accepts he cannot perform. There has been no post-injury re-training.
100. Mr Dourley’s work history was almost exclusively manual and unskilled. To the extent that he had past experience in assembly of electronic or computer equipment, I find that experience was of minimal relevance given its outdated nature.
101. I find that Mr Dourley’s physical restrictions are considerable. He spends periods of his day in a recliner chair rather being seated in an ordinary chair. Whether because of degeneration of his organic back condition or his chronic pain, Mr Dourley thought his condition was slowly getting worse and he has more difficulty walking and standing. He rests frequently during the day. He sleeps poorly.
102. Additionally, I accept the plaintiff’s submissions his extended detachment of more than 11 years from the workforce and consequential physical and mental de-conditioning combined with physical restrictions including his need to be in a reclined position would represent a lack of attractiveness to a prospective employer. In addition, in terms of non-manual employment, I note the evidence was that Mr Dourley was a one finger typist who could not type with any speed or for any length of time.
103. A return to work in employment requires more than a physical capacity to engage in the particular tasks that constitute that employment. In this regard, I accept Mr Dourley’s evidence that there were tasks he could do, but nothing he could do all day.
104. I did not find it particularly relevant to an ability to engage in employment or re-training that Mr Dourley has taught himself to play chords on a guitar or mandolin. In my opinion, the activity of sitting in a recliner chair playing a musical instrument as a hobby that can be stopped and started at will is a completely different proposition to sitting in a two-hour computer course or, indeed, to sustaining employment. As for the public performance, that was one time for 15 minutes on a Saturday morning at a community festival.
105. I accept Dr Costello’s evidence that Mr Dourley’s back pain would continue indefinitely and would prevent him from holding down a permanent position of any kind due to pain and to pain-related impaired concentration She thought that this would be the case even with rest breaks and ergonomic furniture. Mr Dourley’s age and place of residence were further hindrances to employment and travelling was not advisable for him. She considered he had no capacity for employment on a permanent basis.
106. As for the opinions of the occupational physicians, weighing of the whole of the evidence. I preferred Dr Slesenger’s opinion to that of Dr Brown and Dr Baynes as being more realistic. Dr Slesenger’s opinion was that, taking into account Mr Dourley’s age, residential location, his past occupational experience, his computer and literacy skills, his qualifications and his current symptoms and functional limitations, Mr Dourley was unlikely to be able to return to work in a role for which he has suitable training and experience on a consistent and reliable basis. On the other hand, Dr Brown thought Mr Dourley had capacity to engage in retraining and a current work capacity for full-time work which did not involve constant static standing, frequent bending or lifting. He thought Mr Dourley had the capacity to perform any of the job options identified in the Work Able reports on a full-time basis. Dr Brown’s assessment was based on a medical examination in April 2018 subsequent to which there has on the evidence been a deterioration of Mr Dourley’s psychological state and physical condition. Dr Bayne also thought Mr Dourley had capacity for sedentary or alternative employment with restrictions on lifting and bending and between sitting and standing and walking, although on a limited basis of around 20 to 25 hours a week. Regarding the Work Able job options identified by Work Able, Mr Dourley could do those roles on a part-time basis provided he could rotate postures and use a sit/stand desk.
107. I find also therefore that Mr Dourley has an injury-caused inability to return to work in employment on a consistent and reliable basis in any of the following job options identified as suitable in the Work Able in reports dated 1 April 2016, 13 June 2018 and 18 July 2018 namely:
i.Medical typist;
ii.Transport/booking coordinator;
iii.Customer services officer;
iv.Warehouse/factory order clerk;
v.Equipment/machinery hire assistant;
vi.Administrative assistant.
108. For completeness I note that in my view, Dr Slesenger has provided the most detailed analysis, role by role, of the job options and regarding them as inadvisable. By comparison, it is noteworthy that Dr Brown and Dr Baynes did not even differentiate the two roles with manual aspects to them (warehouse/factory order clerk and equipment/machinery hire assistant) as being less suitable than the other given Mr Dourley’s physical limitations on bending, reaching and lifting.
Whether Mr Dourley had made reasonable efforts to actively participate and cooperate in planning for his return to work
Mr Dourley conceded, in cross-examination, that he was stressed and angry at the time arrangements were being made for him to do the computer course as his payment had already been terminated. He agreed he made no enquiries of Work Able regarding whether for example whether he could stand instead of sit. He had disagreed that he had made up his mind to not attend the computer course even prior to consulting with Dr Costello. The evidence was that the WorkCover Agent allowed him extensions of time over a period of about four months and granted a ten-week extension of his weekly payments to attend the course.
110. The question of whether the injured worker has made reasonable efforts to comply with his or her Division 3 obligations is one of fact.
111. The appropriate principles to apply in determining the reasonableness or otherwise of the worker’s efforts were set out by His Honour Judge G Lewis in Cox v TCC. [8] Analysis will depend on consideration of, as His Honour Magistrate Wright held in Vassallo v Intermotor Sales: the evidence of the worker and the GP; the medical evidence at the time; the medical treatment being received; and the difficulties as to pain and incapacity sustained by the worker at the time.[9]
[8][2000] VCC 42
[9] [2017} VMC 16 at [137]
112. In relation to reasonableness in this concept, his Honour Osborn J held in T & G Industries v Randjelovic, the Act is ‘concerned with the objective reasonableness of the worker’s behaviour, not … with the subjective reasonableness of the worker’s state of mind’.[10] Mr Dourley had, aside from the computer course, made all reasonable efforts to comply with his Division 3 obligations including the majority of the Work Able sessions. I find that in not attending the computer course, he was acting on the advice his GP and her views as to the appropriateness of the computer course were apparent from her clinical note of 10 October 2020 when she recorded ‘not able to sit for 2 hours at a time let alone type. Effort on consecutive days is very draining. … pain and weakness down left side. Not fit to attend course’. Whilst the course would not have been conducted on consecutive days, nevertheless, Mr Dourley had family responsibilities early the next day in caring for his children.
[10] [2006] VSC 316 at [16]
113.Therefore, I accept the plaintiff’s submission that, on the whole of the evidence including his own and that of Dr Costello, Mr Dourley’s non-attendance at the computer course did not equate to a failure to make reasonable efforts to actively participate with planning for a return to work.
CONCLUSION
Having found in the plaintiff’s favour, I find that he is entitled to the reinstatement of his weekly payments of compensation backdated to the date of termination. Parties may make submissions or file minutes of consent as to final orders.
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