Downs v Victorian WorkCover Authority
[2018] VCC 581
•4 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-04567
| CARMELA PAMELA DOWNS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2018 | |
DATE OF JUDGMENT: | 4 May 2018 | |
CASE MAY BE CITED AS: | Downs v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 581 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – two discrete injuries: impairment to the neck and impairment to the right shoulder – loss of earning capacity damages – pain and suffering damages conceded
Legislation Cited: Accident Compensation Act 1985; Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Nicholson v Victorian WorkCover Authority [2016] VSCA 146
Judgment: Pursuant to s134AB(16)(b) of the Accident Compensation Act leave is granted to the plaintiff to bring proceedings for pecuniary loss damages on the basis of compensable injury suffered on 26 February 2013.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr B G Anderson | Zaparas Lawyers |
| For the Defendant | Mr D McWilliams | Russell Kennedy |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by her in the course of her employment with Embracia Group Pty Ltd (“the employer”) on 26 February 2013.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body functions relied upon in this application are two discrete injuries, being an impairment to the neck and an impairment to the right shoulder.
6 The plaintiff relied upon two affidavits sworn by her on 24 May 2017 and 26 February 2018. I have not summarised the plaintiff’s affidavits. However, I will refer to her relevant evidence in my reasoning.
7 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
8 I was informed that the defendant conceded the plaintiff has suffered a permanent serious impairment or loss of body function for the purposes of a certificate for pain and suffering damages.
9 The only issue is whether the plaintiff satisfied the criteria for economic loss.
The issues
10 Counsel for the defendant submitted that:
(a) the plaintiff has a capacity to work pre-injury hours of 76 hours per fortnight on alternate duties, with restrictions being that she was required to lift no greater than 5 to 6 kilograms, and nothing above head height. Also, she not be involved in forceful pushing or pulling;
(b) the plaintiff could perform jobs identified in the Nabenet report dated 23 February 2018. The defendant’s medical evidence is that the jobs are appropriate.
The Plaintiff’s evidence
11 The plaintiff is forty-six years of age. She is married with one child. She completed Year 10 at school. She completed a course to qualify her as a pharmacy assistant. She worked as a pharmacy assistant for about six months. She then completed a course as a nail technician and worked for approximately eighteen months as a nail technician. She worked part time in a bakery.
12 In 1996, the plaintiff commenced work as a personal care attendant at Ripplebrook Private Nursing Home and trained on the job, completing a Certificate IV in Aged Care. In about 2006, the plaintiff became a team leader in addition to her normal duties as a personal care attendant.
13 In September 2009, the plaintiff was injured at work, suffering injury to her neck and right shoulder while pushing a heavy trolley across carpet. She had physiotherapy treatment, undertook light duties for approximately two months and made a complete recovery.
14 In February 2011, her employer became Embracia Group Pty Ltd.
15 The plaintiff injured herself at work on 26 February 2013 while pushing a heavy trolley out of the medication room and onto the carpet. The trolley was fully loaded with medication, folders and charts. She reported her injury. She last worked with the employer on 8 March 2013.
The credit of the Plaintiff
16 The plaintiff answered questions directly, made concessions, gave her evidence without embellishment, and was straightforward in her presentation. There was no suggestion in the medical evidence that the plaintiff’s credit was in issue. Overall, the plaintiff impressed me as a believable witness. A number of the medical witnesses commented that she was keen to return to employment but was unable to perform the work she had always performed. Mr Ash Chehata, orthopaedic upper limb surgeon, described the plaintiff as highly motivated and enthusiastic to remain at work.
17 The plaintiff was the subject of video surveillance. The defendant disclosed in its court book that video surveillance of the plaintiff was brought into existence for the dominant purpose of use in the litigation and in respect to which privilege is not waived. No video surveillance was shown to the Court. I can infer that the surveillance would not have assisted the defendant.
18 In closing submissions, counsel for the defendant submitted that the plaintiff had reduced her hours of work by five hours per fortnight without making any contemporaneous complaint to her general practitioner about difficulties working 40 hours per fortnight. In cross examination, the plaintiff agreed she did not discuss the issue with her general practitioner. She said:
Q: “And there was nothing stopping you from making that comment to your GP, was there?---
A: No, but I was afraid.
Q: You were afraid, were you?---
A: M’mm.
Q: You were afraid that you might lose your job?---
A: Yep.
Q: That wouldn’t stop you telling your GP about it though, would it?---
A: No, but I just didn’t want to bring it up and then things will start rolling and then – I enjoy my job, I don’t want to lose my job.
Q: But you’ve got a good relationship with your GP, don’t you?---
A: Yes.”[1]
[1]Transcript (“T”) 47, Line (“L”) 12-22
19 However, the plaintiff reported to other medical witnesses that she reduced her hours of work because she was not coping working 40 hours per fortnight. I accept the plaintiff’s evidence on this point.
20 Further, counsel for the defendant submitted that the plaintiff’s evidence in cross-examination was that she had not disclosed to her current employer her pre-existing work-related condition and, accordingly, was not forthright with her current employer in respect of the work-related injury. The plaintiff’s evidence was that she was asked by the current employer whether she could perform the tasks of the current position. She confirmed that she could perform those tasks. Based on the plaintiff’s evidence and presentation in Court, I formed the view the plaintiff was forthright. I accept the plaintiff’s evidence on this point.
21 A final submission was that the plaintiff refused the defendant’s request that it be permitted an opportunity to examine the plaintiff’s current workplace to assess, from a vocational perspective, the plaintiff’s current work capacity and the duties she performs. I am not aware of such a request being made of any other worker. Further, the plaintiff’s current employer may have a view on such a request. I consider the plaintiff acted appropriately in refusing such a request.
22 Overall, I accept the plaintiff was genuine and forthright in her presentation in Court.
Legislative framework
23 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) the injury suffered by her arose out of, or in the course of, or due to the nature of, her employment with the employer;
(b) the injury, with its resultant impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[2]
(c) the consequences to the plaintiff of her impairment to the neck or right shoulder in relation to loss of earning capacity consequences must be “serious”, that is when “judged by comparison with other cases in the range of possible impairments … be fairly described as more than significant or marked, and as being at least very considerable”.[3]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
[3]Section 134AB(38)(b) and (c) of the Act
24 In addition, in relation to loss of earning capacity consequences, the plaintiff has a specific burden to establish:[4]
[4]Section 134AB(19)(b) and 38(e) of the Act
(a) that at the date of hearing, she had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[5]
[5]Section 134AB(38)(e)(i) of the Act
(b) that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[6]
(c) that the conditions set down in s134AB(38)(e)(i) and (ii) are cumulative.
[6]Section 134AB(38)(e)(ii) of the Act
25 The expression “suitable employment”, which appears in s134AB(38)(f) and (g) of the Act, is defined in s3 of the Workplace Injury Rehabilitation and Compensation Act 2013 in the following terms:
“‘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.”
Loss of earning capacity – the narrative test
26 It was not in issue between the parties that the plaintiff suffered two discrete work-related injuries, being an impairment of the neck function and an impairment of the right shoulder function.
27 In respect of loss of earning capacity, it is necessary for me to consider the plaintiff as at the present time.
28 I shall now consider whether the plaintiff suffers a loss of earning capacity with respect to the impairment of the neck function.
The neck
29 The up-to-date medical evidence of the plaintiff’s capacity for employment in respect to the neck was expressed by treating medical practitioners, Dr Jeyasingham, general practitioner, and Dr Robert Gassin, musculoskeletal and pain physician; medico-legal doctors, Mr Chehata, orthopaedic surgeon, and Professor Richard Bittar, consultant neurosurgeon; and the occupational physicians, Dr David Middleton, Dr Michael Baynes and Dr David Barton.
30 Counsel for the plaintiff submitted that the first vocational assessment report of 21 April 2015 should be disregarded as the qualifications of the author are provided in the report.
31 As to this submission, I am of the view that the vocational assessment report has been superseded by the vocational assessment report dated 23 January 2018.
32 Counsel for the plaintiff further submitted that the reports of Dr Baynes dated 20 May 2015, 29 June 2015 and 31 January 2018 should be disregarded as the opinions expressed by Dr Baynes do not evidence a path of reasoning and when properly analysed, do not carry any weight in the face of the plaintiff’s treaters.
33 Counsel for the defendant submitted that it will ultimately be a question of weight.
34 I have commented on the reports of Dr Baynes in my analysis.
35 In 2016, Dr Robert Gassin said the plaintiff had chronic damage to the right C7 nerve which was the result of her work with the employer. He was aware the plaintiff suffered a single episode of neck pain following a work injury in 2009 which rapidly resolved with physiotherapy. He treated the plaintiff on occasions between May 2013 and December 2015. He reported that the plaintiff was keen to return to work. He imposed work restrictions of:
· three hours daily of work gradually increasing over ensuing weeks
· no lifting over 5 kilograms
· no repetitive twisting or bending
· no work above shoulder height and below waist height
· no heavy pushing or pulling
· no pushing or pulling on carpet.
36 Dr Gassin said the plaintiff may have a capacity for work if the above restrictions can be adhered to. It was his opinion that the plaintiff is likely to suffer from ongoing pain and associated moderate disabilities related to her neck injury for the foreseeable future.[7]
[7]Plaintiff’s Court Book (“PCB”) 71, 72 and 73
37 In April 2018, Dr Jeyasingham said that the plaintiff was currently working to her maximum capacity and beyond. She was not fit for pre-injury duties. It was her view that it was very unlikely that the plaintiff would improve.
38 In April 2018, Mr Ash Chehata examined the plaintiff at the request of the plaintiff’s solicitors. He obtained a history of a previous work injury involving her neck which resolved completely with physiotherapy treatment. He expressed the view that the plaintiff’s current working hours of 35 hours per fortnight, and modification of duties, represent the limit of her work capacity. He said that after suffering from an acute disc prolapse requiring physiotherapy specialist intervention, coupled with a C6-7 foraminotomy performed by neurosurgeon, Mr Ales Aliashkevich, this would alone reduce her capacity to perform her full duties. He described the current duties the plaintiff performs as “light part-time duties”.
39 In March 2018, Professor Bittar diagnosed the following injuries:
· aggravation of cervical spondylosis which was treated with a cervical foraminotomy, followed by an anterior cervical decompression and fusion at C6-7
· persistent right C7 radiculopathy,
· Chronic Pain Syndrome.
40 Mr Chehata said the plaintiff was incapacitated for her full pre-injury duties as a personal care attendant in her pre-injury role. She does have the capacity to work up to 35 hours per fortnight in a sedentary role and is currently employed in such a position. Further, her partial incapacity for work is permanent.[8] He believed the plaintiff’s current level of hours and duties represent the limit of her work capacity.
[8]PCB 142
41 In a report dated May 2017, Mr Aliashkevich, treating neurosurgeon, based on his most recent examination of the plaintiff of May 2015, said the plaintiff was unable to return to her pre-injury work and was unfit for alternate duties. He said, given her responses to previous unconventional procedures which was marginal and short-lasting, he was reluctant to offer her more surgery. He did not think, based on her failure to respond to procedures, she would be able to achieve functional recovery in the foreseeable future.
42 I accept that the current medical evidence of Dr Jeyasingham, Mr Chehata and Professor Bittar in relation to the plaintiff’s condition relating to her neck is that the plaintiff can work, at best, 35 hours per fortnight, in light suitable employment, being a sedentary role similar to the role the plaintiff is currently performing.
43 The occupational physicians agreed that the plaintiff could not return to pre-injury employment.
44 Dr Middleton said the plaintiff was restricted to sedentary non-manual duties that need to be performed in a self-paced manner with provision of work breaks as required. Activities involving her head and neck need to avoid repetitive prolonged or forceful activities. He was aware the plaintiff was working a permanent part-time job as a personal care attendant where the duties are primarily in wine and cigarette allocation, and that the five residents under her care are defined as low-care residents requiring minor assistance in regards to the activities of daily living, which is in contrast to her previous position as personal care attendant.
45 Dr Middleton noted that the plaintiff performed limited hours in her current role, that she reported arriving home exhausted and was heavily reliant upon her husband and daughter to undertake the duties that, prior to the injury, she would have undertaken herself in both the domestic and outdoor maintenance roles. He said, as a result of the neck injury, she has limited postural endurances and is significantly impeded in her capacity to drive her car. He regarded the functional limitations as permanent work restrictions which he said would need to apply for the foreseeable future.
46 In considering the plaintiff’s injuries as permanent, Dr Middleton took into account the fact that the injury occurred in February 2013, some five years ago, and that there has been no substantive change in her condition despite all the treatment that has been provided.
47 Dr Middleton further said that, at best, the plaintiff can attend work three to four hours in any one day, two to three non-consecutive days in any one week; a maximum time attending work to avoid ongoing impacts to her non-work time activities limited to twelve hours per week.
48 In his second report, Dr Middleton considered the Nabenet Report of 23 January 2018, which identified a number of employment options, namely, lifestyle assistant – aged care facility, aged care receptionist/administrator, pharmacy sales assistant, call centre operator and optical dispenser. After considering the report, he raised a number of issues in relation to the report, and was of the opinion that the jobs outlined in the report would not be suitable for the plaintiff.[9]
[9]PCB 135
Dr Michael Baynes, occupational physician
49 Dr Baynes examined the plaintiff at the request of the defendant on 26 November 2014, 20 May 2015 and 31 January 2018. He provided reports dated 20 May and 29 June 2015, 31 January and 13 April 2018.
50 In May 2015, Dr Baynes said the plaintiff had no capacity for alternative or modified duties due to ongoing pain, and restrictive function of the neck and right shoulder. He said that would continue for at least six months before she has a capacity for alternate duties. He imposed restrictions of lifting, limited to one kilogram with the right arm; driving limited to local only and push and pull restrictions, and he did not believe she had a capacity to participate in retraining and re-employment services at that time.[10]
[10]Defendant’s Court Book (“DCB”) 28-30
51 One month later, on 29 June 2015, Dr Baynes provided a supplementary report, changing his opinion. For the purpose of the report, he had been provided with a surveillance report dated 17 June 2015 and three DVDs. He noted the surveillance report and DVDs showed the plaintiff driving, walking with a normal gait and arm action, using her right hand normally to open the car door, check magazines on the supermarket shelf and carry a folder. She appeared to have normal movement of the neck with both left and right rotation, and was able to flick her hair out of the way.[11] As a result, he said the surveillance conflicted with the clinical history and the examination of quite marked restriction of function. He noted the surveillance did not show the plaintiff undertaking heavy manual work, but noted she had the ability to undertake normal activities in terms of driving, moving, and use of the arms and neck, and shopping. As a result, he said she was unlikely to be fit for pre-injury duties as a personal care assistant; however, he thought she had a capacity for alternate duties where there is no lifting greater than 5 to 6 kilograms and no lifting above head height. There should be no forceful pushing or pulling, and no constrained postures of the neck. He said she was fit for pre-injury hours. He said she had a capacity for the roles of administrator, pharmacy sales assistant, health information records clerk, filing and registry clerk, call centre operator, family support worker and community worker and receptionist, identified in a vocational assessment report dated 21 April 2015.[12]
[11]DCB 33
[12] PCB 33-34
52 As the surveillance report was not included in the Defendant’s Court Book and the DVDs were not shown, I place little weight on this report of Dr Baynes.
53 In January 2018, Dr Baynes said the plaintiff had a degree of permanent residual disability in terms of ongoing pain and restriction of range of movement and function of the neck, and also of the right shoulder. He was aware that the plaintiff’s pain had limited the functional capacity in terms of activities of daily living. For example heavier housework and shopping has caused her to use mainly her non-dominant left arm for most activities. He was aware she reported increased fatigue associated with the pain. He accepted the pain does have an organic basis and that the organic condition is a main component of the pain symptomatology.[13] He said the plaintiff had a capacity to work her pre-injury hours of 76 hours per fortnight on restricted duties. However, he gave no reasons for this. This is particularly relevant when the plaintiff was working 40 hours per fortnight and her evidence was that she could not manage those hours and she had reduced her hours to 35 hours per fortnight. He considered the Nabenet report dated 23 January 2018, and was of the view the plaintiff could perform employment on a full-time basis of each of the jobs described, namely a lifestyle assistant in an aged care facility, aged-cared receptionist/administrator, pharmacy sales assistant and call centre operator, as well as an optical dispenser. He imposed restrictions of no lifting greater than 5 to 6 kilograms and no lifting above head height, and said that she should not be involved in forceful pushing or pulling, nor should she work with constrained postures of the neck.[14]
[13]DCB 40
[14]DCB 42
54 In April 2018, Dr Baynes was provided with the plaintiff’s up-to-date affidavit, together with the reports of Mr Chehata and Dr David Middleton. He was aware that the plaintiff was working 40 hours per fortnight, but had dropped a Sunday shift as she was not coping, working 35 hours per fortnight. He was aware of the restrictions imposed by Mr Chehata, who advised the plaintiff was fit to return to a modification of duties and working 35 hours per fortnight. He was aware of the restrictions and hours imposed by Dr David Middleton. Dr Baynes said the additional material did not change his previous opinion that the plaintiff was capable of performing her current employment on a full-time basis, which he said was related to the secondary nature of her work role. He said the plaintiff was capable of that employment on a full-time basis.[15]
[15]DCB 43A-43B
Dr David Barton, consultant occupational physician
55 In August 2017, Dr Barton, consultant occupational physician, examined the plaintiff at the request of the defendant’s solicitor. He acknowledged that the plaintiff had a comprehensive and unsuccessful neck surgery and that there was incapacity related to the sequelae of the neck surgery. He accepted that there would be duties that would make it difficult for the plaintiff to work as a personal care assistant. It was his view the plaintiff could perform suitable employment on a full-time basis and he considered her current position as suitable employment. He gave no reason for reaching this view. He accepted the plaintiff could work as an administrator, receptionist, call centre operator and reception clerk.[16]
[16]DCB 48-49
The Nabenet Report dated 23 January 2018
56 A number of jobs were suggested as suitable employment by the authors of the report, Amy Smith, a registered clinical psychologist employed by Nabenet, and Kim Jackman, a registered occupational therapist with eighteen years’ experience in health disability and occupational rehabilitation. They considered some of the medical reports, met with the plaintiff and obtained an employment history and qualifications of the plaintiff. They identified the plaintiff’s employment skills and identified five potential suitable jobs.
Lifestyle assistant aged care facility
57 Nabenet contacted Estia Health for information on such a position. The duties described are limited and vague. The duties listed give no description of what is required for any particular job. There is a physical component involved at times which, again, is vague, such as moving boxes of decorations and climbing ladders to hang decorations. Other staff can complete such duties if needed.
58 The plaintiff said she had worked in facilities that employ lifestyle assistants who organise activities for residents including games such as bingo, cooking activities and taking residents on daytrips. The plaintiff gave evidence that she would have difficulty with the physical aspects of this job, particularly when taking residents on outings, as this can involve wheelchair-bound residents who would require assistance in getting on and off a bus and would also require her to carry things for the residents.[17] The plaintiff said that in her current job she does not have any wheelchair-bound residents under her care.[18] The authors of the report have made no attempt to assess the physical requirements of the job and take into account the plaintiff’s limitations.
[17]T59, L10-12
[18]T59, L13-14
Aged care receptionist/administrator
59 Nabenet contacted Craigcare Berwick to obtain information on a receptionist/administrator position in aged care, including duties, qualifications, physical requirements and whether vacancies exist, and wage rates. Nabenet was informed that there is no vacancy for such a position, and previous experience would be preferred. The plaintiff has no prior experience in such a role. The plaintiff said her computer skills are basic and she is not confident using computers. She is able to use email, the internet and Microsoft Word. Nabenet suggested that a short course in a payroll system such as MYOB or Xero would be of assistance. The role is deskbound, and it was suggested that an ergonomic assessment be completed prior to the plaintiff commencing such a role.
60 The authors of the report have made no attempt to assess the physical requirements of the job and take into account the plaintiff’s postural endurances in sitting, standing, walking and lifting. Given the plaintiff’s basic computer skills, I do not consider that a short course in a payroll system as suggested would qualify the plaintiff for the position.
Pharmacy sales assistant
61 Nabenet contacted the Berwick Pharmacy to obtain information on the position of sales assistant.
62 The plaintiff completed a pharmacy assistant course soon after leaving school, approximately twenty years ago, and worked in such a position for six months. It was acknowledged that there was lifting involved in this role and trollies were available. Further, that other employees can assist with the lifting component of the job and that there is a lift.
63 The report does not address the physical requirements of the role. The reliance on other employees to perform lifting tasks associated with this type of work which would be required of the plaintiff would be unsatisfactory and unreasonable. Further, the provision of a trolley and lift does not substitute for the realistic physical requirements of the job, particularly the handling of bulk supplies, back of store stock management and accessing and refreshing goods for sale and products from the storage area.
Call centre operator
64 The qualifications are preferably previous call centre experience. It is a computer-based job requiring specific program expertise. The job is desk based. There is a recommendation for an ergonomic assessment to be completed prior to the plaintiff commencing such a role. A sit/stand desk is provided. Employees would be required to wear a headset to answer and make calls. The plaintiff gave evidence that the pain in her neck would be exacerbated if she was in a position where she was required to wear a headset and look at a computer monitor for an extended period of time. The hours for this role is 38 hours per week.
65 Given the plaintiff’s limited computer skills, the fact that the plaintiff has no previous experience and that the job is deskbound, I consider the job is unsuitable.
Optical dispenser
66 The authors consulted a large retail optical firm. There is training available on the job, although previous experience is beneficial. The main requirement is excellent customer service. The plaintiff has limited customer experience which was over twenty years ago.
67 The authors of the report have relied upon the optical firm to indicate that the role does not require any heavy lifting and allows for postural changes. However, the duties of the role include measuring and adjusting frames for customers. In assisting customers, in such a role the plaintiff would require physical flexibility which her postural endurances would not permit.
68 In summary, I consider the 2018 Nabenet report of limited value. Of the jobs identified, only one has a current vacancy. None of the positions took into account the plaintiff’s limitations. The physical requirements of the positions were generic. The duties described were not the description of what was required by any particular job. It was difficult to determine whether the plaintiff had a physical capacity for the work described without a proper understanding of the physical demands of the particular job. The authors suggested a number of the positions would require an ergonomic assessment. Of the jobs outlined, an ergonomic assessment would not alleviate the physical requirements of the role. Accordingly, I consider the positions outlined in the Nabenet report unsuitable.
69 Dr Baynes and Dr Barton accepted that the positions in the Nabenet report were suitable. Given my finding that I cannot rely on upon the report, the views of Dr Baynes and Dr Barton are of limited value. Overall, I considered both witnesses failed to explain why they considered the plaintiff could work 38 hours per week when the plaintiff has reduced her hours from 40 hours a fortnight to 35 hours per fortnight. Further, there was no discussion of the views expressed by Mr Chehata and Dr Middleton.
70 I am satisfied the plaintiff’s impairment is permanent. I note that the impairment has remained since 2013, despite the plaintiff being subject to a number of medical procedures. There is no medical evidence to suggest the impairment will improve. In fact, Dr Gassin, Dr Jeyasingham, Mr Chehata, Professor Bittar, Dr Baynes and Dr Barton said the restrictions were permanent. Given the plaintiffs age of forty-six years, this is particularly notable.
71 The plaintiff presented as a motivated person, who had sought and obtained part-time work. The plaintiff gave evidence that she enjoys her work. She conveyed to the Court the importance of her work. She told the Court that she was the sole earner for her family, the family was struggling financially and she would put her name down for more work if she was able. I am satisfied it is fair to describe the consequence of the plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by comparison with other cases in the range. The plaintiff, therefore, satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments. No element of mental component is taken into account in this assessment; indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
72 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
The statutory test – loss of earning capacity
73 The statutory test under the Act requires the worker to have a loss of earning capacity of 40 per cent or more, measured by comparing the worker’s gross income before her injury and after the injury.
74 The injury took place on 26 February 2013. Accordingly, the analysis of “without injury” earning capacity runs for the six-year period spanning from February 2010 to February 2016. The plaintiff’s 2012 financial year taxation return indicates a pre-injury gross annual income of $56,108 from personal exertion as a personal carer. The base hourly rate for Monday to Friday work as at the time of injury was $21.675 dollars. The annual gross income of $56,108 takes into account the increased hourly rates of pay for work on Saturdays, Sundays and public holidays, plus financial allowances for laundry/linen/team leader/uniform. If the annual figure of $56,108 is converted into an hourly rate for a 38-hour week, the real “effective” average hourly rate of pay would be $28.294 for a 38- hour week. The relevant Enterprise Agreement 2013 to 2016 shows an increase in wages for the applicable “old WSG 10” category of personal carer or 3 per cent in 2014, 3 per cent in 2015 and 3 per cent in 2016. Based on the above, the above-mentioned figure of $56,108 would most likely have increased by 3 per cent in the years 2014, 2015 and 2016. The plaintiff submits that her “without injury” earning capacity is, therefore, $61,310.
75 Consistent with the Court of Appeal case of Nicholson v Victorian WorkCover Authority,[19] the expression “income from personal exertion” found in s6(2) of the Transport Accident Act 1986, and imported into s134AB(38) of the Act, established that “without injury” earnings effectively is the gross amount before the deductions of allowance or work-related expenses.
[19][2016] VSCA 146
76 The plaintiff returned to alternative part-time employment in July 2016. In 2017, her group certificate indicates gross annual earnings of $29,597 from personal exertion. The 2017 financial year included the period until approximately May 2017, when the plaintiff was working 40 hours per fortnight.
77 The payslips from July 2017 to April 2018 indicate the plaintiff’s earnings of $20,506 over forty-four weeks of the current 2018 financial year. This period has been worked at 35 hours per fortnight.
78 Assuming a continuation of that level of earnings, that is, at $466 gross per week, the gross annual earnings for the 2018 financial year will be in the vicinity of $24,232. If the plaintiff reverted to 40 hours per fortnight, her earnings would increase by 14 per cent. This would equate to an increase of $3,392.48, up to a total gross annual income of $27,624.48.
79 Sixty per cent of her “without injury” earning capacity of $61,310 is $36,786.
80 Accordingly, I conclude that the plaintiff has a greater than 40 per cent loss.
81 While neither counsel made submissions on the point, I am also required to consider issues of retraining and rehabilitation pursuant to s134AB(38)(g) of the Act.
82 The plaintiff cooperated with Nabenet in April 2015 and January 2018. In April 2015, Nabenet did not identify any specific training needs for the plaintiff. Nabenet stated in its first report that it may assist the plaintiff to explore opportunities to complete retraining during the delivery of New Employer Services.
83 The evidence is that in July 2016, the plaintiff found part-time work with her current employer in an aged care facility. Currently she works 35 hours per week.
84 I accept that no retraining and rehabilitation has been offered to the plaintiff. None of the medical reports suggested rehabilitation or retraining. I am satisfied that the plaintiff has complied with the requirements of retraining and rehabilitation.
85 Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more. Therefore, I am satisfied the plaintiff has satisfied the 40 per cent requirement and sustained a “serious injury” within s134AB of the Act.
86 The above position is reached purely by reference to the plaintiff’s physical condition; namely, her neck. No elements of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act.
87 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for loss of earning capacity is successful.
88 I will hear the parties on costs.
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