Dunford v Victorian WorkCover Authority
[2018] VCC 2001
•4 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-00636
| RODNEY DUNFORD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 November 2018 | |
DATE OF JUDGMENT: | 4 December 2018 | |
CASE MAY BE CITED AS: | Dunford v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2001 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application in respect of pain and suffering damages and pecuniary loss damages – injury to lumbar spine and left upper limb – pre‑existing injuries and conditions including profound deafness – whether plaintiff has ongoing capacity for employment – numerous examinations on behalf of defendant – whether burden of proof discharged – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC with Mr S Carson | Maurice Blackburn |
| For the Defendant | Mr A Moulds QC with Ms K Manning | Wisewould Mahoney |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of both pain and suffering damages and pecuniary loss damages. In so doing, he relies upon paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. The injuries in question are to the left upper limb and the lumbar spine, although it was emphasised at the outset that the case was largely about the low back – see Transcript (hereinafter referred to as “T”) 1 and 73. The injuries are said to have occurred in the course of the plaintiff’s employment as what was described as a production assistant with an entity called Tourism Holdings Australia Pty Ltd (hereinafter referred to as “Tourism”). Essentially his work involved tasks in relation to the construction of motor homes, including the fitting of new internal features such as beds, electricals, plumbing, kitchens, shower modules and the like. The plaintiff has sworn that it was difficult and awkward work in confined spaces and also involved the manoeuvring of quite heavy items.
2 The plaintiff remains on weekly payments of compensation as for total incapacity in respect of injury to the back and to both shoulders. I would refer to T3-4. Further, there is no dispute concerning the occurrence of injury – see T9.
3 Mr T Monti QC with Mr S Carson of counsel appeared on behalf of the plaintiff. Mr A Moulds QC with Ms K Manning of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of three affidavits as being true and correct. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
Factual background
(a)The plaintiff’s background, education, training and employment prior to the injury
4 The plaintiff is aged 53 years, he having been born in 1965. He is right handed. He is a single man, who is the designated carer for his mother. She has suffered a stroke, but has some limited capacity to look after herself. The plaintiff was educated to Year 11 level. At one stage he was an apprentice hairdresser, but has effectively been what was described in the opening as a “hands-on worker”. This has involved such things as factory and welding work. He commenced employment with Tourism in January 2006. He continued with the work duties that have been described, although performing restricted duties only from approximately August 2011. The duties were altered to being very light and ultimately, in November 2011, he was advised that there were no more light duties available for him. He has not worked since.
(b)The plaintiff as a witness
5 At times the plaintiff gave evidence in a somewhat unusual fashion, but this may well have been due to the fact that he is quite profoundly deaf. However, my overall impression is that he is a witness of truth and that he did his best to answers questions accurately. I note that Mr David Brownbill, consultant neurosurgeon, who examined the plaintiff at the request of the defendant, described him as being cooperative, a little loquacious, but without embellishment and appearing to be straightforward in his presentation. Mr Rodney Simm, orthopaedic surgeon, also examining on behalf of the defendant, described him as presenting his history in a straightforward manner. Dr Matthew Tagkalidis, consultant psychiatrist, also examining on behalf of the defendant, described the plaintiff as being cooperative, pleasant and matter of fact in demeanour. I agree with these observations by the defendant’s examiners. I accept the plaintiff as being both a reliable and a truthful witness.
(c)The state of the plaintiff’s health prior to and apart from the injuries the subject of the application
6 The plaintiff’s medical history is quite complex. It would seem that he was born with deafness in the right ear and in more recent times has required a hearing aid on the left ear. Over the years he has had quite severe Dupuytren’s Contracture affecting all fingers, except the right thumb. In relation to his right hand, he had surgery, but with a poor response and his fifth finger remains in a permanently flexed position. He has also had surgery to the left hand, but apparently with more satisfactory results. He has had cardiac problems, having suffered a myocardial infarction in December 2010. He had a further cardiac episode in 2012. In May 2008 he suffered the onset of right shoulder pain, although his recollection is that, whilst this was investigated, the pain settled after some eight months.
7 Thus, it can be seen that the plaintiff has encountered various health problems.
(d)The injury, its treatment and diagnosis
8 The plaintiff suffered from various aches and strains associated with his duties. However, in relation to the relevant injuries, he appears to have first become aware of pain in his lower back and left shoulder in approximately March or April 2011. Apparently he was reaching under some racking in order to retrieve a bunk board. Thereafter he had ongoing pain in the left shoulder and in the lower back, which latter pain spread into his left leg. Ultimately he was seen at the Northern Occupational Medical Services, apparently by Dr Jennifer Liang, who referred him for a left shoulder ultrasound. This was carried out on 18 May 2011 and revealed a partial articular surface tear of the mid supraspinatus tendon. Dr Liang also organised for a CT scan of the lumbar spine to be performed and this was done on 6 June 2011. The conclusion of the radiologist was that the plaintiff suffered multifocal disc and facet degenerative changes, with a small dorsal disc protrusion at L4-5. In the meantime, the plaintiff’s treatment was taken over by Dr Joseph Slesenger of the same clinic and Dr Slesenger has remained the plaintiff’s treating doctor thereafter. Dr Slesenger is a specialist occupational physician. The plaintiff was treated with physiotherapy and analgesia. He was off work for some six months before returning to work on light duties, with quite significant restrictions and for reduced hours. Dr Slesenger has continued to be the plaintiff’s treating doctor and sees him regularly.
9 On 21 August 2011, the plaintiff underwent an MRI scan of the lumbar spine. The conclusion of the radiologist was that at L4-5 there was slight posterior disc bulging and mild facet joint arthropathy, along with ligamentum flavum hypertrophy. However, there was no sign of nerve root compression. At L5-S1 there was early bilateral facet joint arthropathy but no disc herniation. The findings were otherwise normal.
10 Although the plaintiff returned to work with Tourism performing light duties in October 2011, in November of that year he was told that there were no more light duties available for him and that he should cease coming to work. He has not worked since.
11 Dr Slesenger had referred the plaintiff to Dr Dominic Yong, specialist occupational physician, on 16 August 2011. It was Dr Yong who organised the MRI scan. At the time of Dr Yong seeing the plaintiff, he was mainly troubled by low back pain, but also had some left shoulder pain. The plaintiff gave an appropriate history. Dr Yong subsequently obtained the results of the MRI scan, but does not seem to have seen the plaintiff since. The diagnosis of Dr Yong was that the plaintiff suffered a discal injury with radicular features, although the MRI scan did not note any overt neuro-compression. He recommended that the plaintiff have further investigations.
12 As stated, Dr Slesenger has continued to see the plaintiff on virtually a monthly basis and his reports from time to time have focussed particularly upon the plaintiff’s capacity for employment. It is to be remembered that Dr Slesenger, whilst he may have had the management of the patient generally, is a specialist occupational physician. The most recent of his eight reports are those of 14 August and 8 October 2018, the latter being effectively a letter answering a couple of specific questions. In any event, in his report of 14 August 2018, Dr Slesenger has noted that there has been no change in the plaintiff’s presentation and that he has lower back pain which is persisting at a moderate to severe level, this being centred in the lower back and intermittently radiating to both legs. He also referred to the plaintiff having ongoing pain in both shoulders, whilst noting that the right was worse than the left. It is to be remembered that, whilst the plaintiff’s case also includes injury to the left shoulder, the main reliance is upon the back injury. In any event, Dr Slesenger noted that the plaintiff was seeing the physiotherapist every three weeks and was on a range of medications, although these are principally for other conditions. In concentrating solely on the plaintiff’s back injury, Dr Slesenger expressed the view that the plaintiff could not return to pre‑injury duties and was also of the opinion that, taking into account the plaintiff’s past occupational experience, his lack of computer skills, his literary skills, his symptoms, his functional limitations, the length of his occupational disability and his poor response to treatment to date, he would not be able to return to work performing suitable alternative duties. He described the prognosis as guarded.
13 The plaintiff has also been referred and treated by Ms Vicki Kerner, physiotherapist. Whilst Ms Kerner does not set out specific dates, it is quite clear from the report of Dr Slesenger of 27 August 2013 that Ms Kerner has been the plaintiff’s treating physiotherapist for a considerable period. In a report of 29 October 2018, Ms Kerner gives a brief history of events and expresses the opinion that the plaintiff continues not to be physically fit enough to be involved in any type of sustained physical work, referring to both shoulders and the mid to lower back. The plaintiff has been seeing Ms Kerner approximately every three weeks. There is a reference to regular flare-ups of back pain triggered by everyday basic necessary activities of daily living and home duties. Ms Kerner also refers to the plaintiff’s limited ability to bend, extend or rotate his spine. He also suffers intermittently from sciatic pain and numbness in the legs, although this has not been as much of an issue in recent times. Ms Kerner expressed the view that the plaintiff will never fully recover, but that he could participate in “light weight duties such as retail work or supervisor work”. In a supplementary report of 6 November 2018, Ms Kerner stated that she believed that the plaintiff had the capacity to work up to 20 hours a week, in a light retail or customer service role. He could serve customers at a counter, but not for prolonged periods. She also pointed out the difficulties of the plaintiff in relation to his “other medical history”. In addition, Ms Kerner noted that his previous role was not in customer service, but in building caravans.
14 The plaintiff has also been examined for medico-legal purposes. The plaintiff has been seen by Associate Professor Bruce Love. His report is dated 19 January 2016. Whilst the report of Associate Professor Love is contained in the Plaintiff’s Court Book in the collection of reports of those who have treated the plaintiff, it is quite apparent from his report that he in fact saw the plaintiff for medico-legal purposes at the request of the plaintiff’s solicitors. Associate Professor Love took an appropriate history of the plaintiff having longstanding back pain, with a particular event in 2011. He considered the plaintiff to have lumbar spondylosis and thought that his back condition was work-related, as was the condition of his shoulders. Associate Professor Love thought that the plaintiff could not perform physically demanding work, placing various restrictions on him, some of which seemed to relate more to the shoulders than to the back, although specifically ruling out work that required bending, stooping or carrying objects of significant weight long distances.
15 At the request of the plaintiff’s solicitors, Dr Helen Sutcliffe, occupational physician, examined the plaintiff and provided a detailed report of 19 May 2016. The diagnosis of Dr Sutcliffe was that the plaintiff sustained an onset of left shoulder injury in the form of a supraspinatus tear and the aggravation of degenerative changes. He also suffered onset of aggravation of degenerative changes in the lumbosacral spine as a result of his employment. Dr Sutcliffe expressed the view that it was unlikely that the plaintiff would be able to return to any occupation now or in the foreseeable future as a result of the work-related injuries. She considered his incapacity to be permanent and believed that he could not return to employment, taking into account his age, education, past work experience and the nature of the incapacity. She also referred to his skills and the like.
16 Dr Sutcliffe reported for a second time on 14 September 2016, but this would appear to be more in the nature of commenting upon a report from Dr Michael Bloom, who saw the plaintiff at the request of the defendant, and a Recovre report. Her conclusion was that the plaintiff did not have the capacity for employment, including the occupations suggested in the Recovre report. She believed them to be beyond the plaintiff’s capacity now and into the foreseeable future. She also referred to the problems associated with work involving constant use of the upper limbs.
17 Mr Stephen Doig, orthopaedic surgeon, reported to the plaintiff’s solicitors on 6 September 2018. The history given by the plaintiff to Mr Doig referred to some right shoulder problems, but there appeared to be little by way of treatment, as this problem had settled down. However, the plaintiff also referred to left shoulder problems with a gradual onset of low back symptoms. He considered his back to be the major problem. It was noted that he reacts badly to codeine. Mr Doig diagnosed the back injury to be one of choric low back strain in the setting of degenerative changes and some facet joint degenerative changes. In relation to the left shoulder, he diagnosed a clinically partial thickness tear of the rotator cuff with a chronic subacromial bursitis. He implicated employment in relation to both injuries. He noted that the plaintiff was doing a sign language course for the deaf in the hope of finding some sort of work in this regard. Even if he did find such employment, Mr Doig was of the view that the plaintiff would be restricted to 20 hours a week because of problems with standing and travel. He considered the prognosis to be poor.
18 Dr Robyn Horsley, occupational physician, saw the plaintiff at the request of his solicitors on 23 August 2018. Dr Horsley took a comprehensive educational and occupational history, as well as a summary of the plaintiff’s current problems and symptoms. In relation to the plaintiff’s back, Dr Horsley diagnosed mechanical back pain on a background of pre-existing lumbar spondylosis. In relation to the left shoulder, she referred to a background of degenerative change in the left acromioclavicular joint. She also thought that the plaintiff was mildly anxious. She noted in relation to his sign language course that he was hoping to work something in the order of 12 to 15 hours per week and hoping, if he obtained the appropriate qualification, that this might lead to remunerative work. Dr Horsley thought that the plaintiff did have a capacity for work, for example as a teacher’s aide in the School for the Deaf, limiting his working hours to 15 to 20 per week.
19 The defendant has also had the plaintiff examined and by no fewer than 12 medico-legal practitioners. The end result of this is that the Defendant’s Court Book, as tendered to the Court, contains 21 medical reports, a figure clearly in excess of that referred to in the Practice Note. The defendant also tendered the Medical Panel Opinion and Reasons. I am not going to set out this large amount of material in detail and particularly not that contained in early medico-legal reports.
20 Accordingly, I shall summarise the defendant’s medical material as follows:
·Mr Peter Scott, surgeon, report of 27 November 2011. The plaintiff suffered a left rotator cuff injury with a partial tear of the supraspinatus tendon and has persistent low back pain with symptoms suggestive of lumbosacral nerve root irritation.
·Mr Peter Kudelka, orthopaedic surgeon, reports of 2 April 2012 and 19 March 2013. The plaintiff has a painful, weak, restricted left shoulder due to work aggravated degenerative changes and pain and stiffness consistent with aggravated degenerative changes in the lower two lumbar discs. He is fit for restricted alternative duties. (Curiously, Mr Kudelka described the plaintiff as being “slightly deaf”, a somewhat massive understatement.) It is difficult to envisage any employer offering him employment (stated in his second report).
·Dr Ian Jackson, psychiatrist, report of 26 March 2013. There has been an understandable psychological reaction to the plaintiff’s medical history, including unemployment, but he is not suffering from a diagnosable psychiatric condition.
·Mr Gerald Moran, orthopaedic surgeon, report of 2 June 2014. The plaintiff has a partial tear of the supraspinatus tendon of the left shoulder which has stabilised and is assessed pursuant to the AMA Guides.
·Mr Michael Dooley, orthopaedic surgeon, reports of 3 February, 12 February and 31 August 2016. There is a tear of the left supraspinatus tendon, which is part of the natural evolution of underlying degenerative disease. There is age-related degenerative disc disease of the lumbar spine. There has been a soft tissue injury which has involved some aggravation of this. The plaintiff has the physical capacity to carry out various light work tasks and clerical duties. He could, for example, work as a quality tester, but would have difficulty carrying out all the duties of a machine operator or process worker.
·Dr Michael Bloom, occupational and environmental physician, reports of 21 March 2016 and 17 September 2016. The plaintiff stated that his main current problem is low back pain. There was no evidence of impairment of the right shoulder. Rehabilitation to the workforce of this man will prove particularly challenging. Some tasks, such as a carpark attendant, could be performed by him. He has some very limited work capacity, but realistically is unemployable. As at 17 September 2016, he could work in a particular job as a machine operator/process worker which has been identified or as a quality tester.
·Dr Matthew Tagkalidis, consultant psychiatrist, report of 7 August 2017. The plaintiff is suffering from a mild adjustment disorder with depressed (predominantly frustrated) mood. His depressive syndrome is not currently of a severity that justifies a major depressive or anxiety disorder diagnosis.
·Dr David Elder, consultant in occupational and environmental medicine, report of 30 August 2017. The plaintiff’s main complaint is his low back pain. The balance of this somewhat confusing report seems to deal with impairment assessment.
·Mr David Brownbill, consultant neurosurgeon, report of 14 November 2017. The plaintiff describes his low back pain as being his main problem, also stating that it is perhaps getting worse with physical activity. He probably sustained soft tissue injuries to structures about the lumbar spine with possible aggravation of mild lumbar spine degenerative changes. Mr Brownbill was unable to provide a nuero-surgical basis for the described ongoing unremitting low back pain for six years and thought it appropriate for the plaintiff to be reviewed by an orthopaedic surgeon and a pain management specialist. The plaintiff appeared straightforward in his presentation. Any attempts at a graded return to work should be made under close medical supervision and the number of hours which he could work would be dictated by his responses.
·Dr Dush Shan, consultant psychiatrist, reports of 19 January 2016 and 21 November 2017. The plaintiff suffers from a mild adjustment disorder with mixed depression and anxiety. No work-related psychiatric condition contributes to incapacity for work.
·Dr Philip Mutton, consultant occupational physician, reports of 6 December 2017 and 22 August, 10 October and 18 October 2018. Dr Mutton did not think that the plaintiff suffered any significant loss from a functional viewpoint in relation to his back or left shoulder, but suggested certain restrictions as a precaution. He thought that the plaintiff could undertake a range of duties, but had little in the way of transferrable skills. In his second report, he referred to the plaintiff as having a current work capacity, but placed some restrictions based upon the existence of known degenerative changes in the lower back.
Dr Mutton thought that the plaintiff had the capacity to work as a despatch packer and perhaps as a forklift driver. He also thought that the plaintiff, who had some experience as a spray painter, could do that work with appropriate ergonomics. He could also do some light packing or process work. The plaintiff would require some training to perform clerical administration work. The plaintiff could also work as an interpreter of sign language or in other tasks, such as a ticket sales person, which had similar levels of physical demand.
In his report of 10 October 2018, which did not seem to follow a further examination, Dr Mutton considered various of the plaintiff’s supporting medical material, which did not cause him to change his previously expressed opinions. In his final report of 18 October 2018, Dr Mutton, again without a further examination, considered the suitability of three areas of employment suggested in a Recovre report of 15 October 2018. He considered suggested work as a workshop administrator or stock clerk; an order packer; and a process worker operating a powder coating machine as being suitable employments, although stating that appropriate seating should be supplied in relation to the order packer.
·Mr Rodney Simm, orthopaedic surgeon, reports of 2 and 23 October 2018. Mr Simm referred to the right shoulder pain as being transient and took a history of recovery from that. Whilst referring to degenerative changes in the back, Mr Simm stated he was unable to establish a satisfactory organic diagnosis. He also referred to minor degenerative rotator cuff pathology causing a partial thickness tear of the supraspinatus tendon on the left side. There were subjective signs of left shoulder dysfunction, but the clinical tests for rotator cuff impingement and dysfunction were negative. He thought that the plaintiff’s entrenched chronic left shoulder and lumbar pain would persist without change, but there were no objective clinical signs enabling a precise diagnosis to be made. He thought that the plaintiff presented, at times, with quite marked pain and illness behaviour. He noted extremely painful restriction of forward flexion of the lumbar spine. Mr Simm considered that there may be psychological factors operating, but deferred to any opinion of a psychiatrist. His supplementary report of 23 October 2018 was written without any further examination of the plaintiff. He considered some reports from Dr Slesenger, Dr Horsley and Mr Doig, but these did not lead him to alter the opinions previously expressed.
21 The defendant also tendered the Certificate of Opinion and Reasons for Opinion of a Medical Panel. Each document is dated 24 February 2017. The Panel formed the view that the plaintiff was not currently suffering from any medical condition of the right shoulder and that he had a mild adjustment disorder with anxiety and depression. It considered the plaintiff to have a soft tissue injury of the lumbar spine in the setting of lumbar disc degenerative disease and passive joint degenerative disease relevant to the injuries. It also considered that he was suffering from an unresolved soft tissue injury of the left shoulder in the setting of acromioclavicular joint degenerative disease relevant to the injuries. Its opinion was that the plaintiff had an incapacity for work in suitable employment which was likely to continue indefinitely. In essence, it concluded that there was no work for which the plaintiff was currently suited and which he could perform on a consistent and reliable basis. He has no current capacity and it considered that his condition was unlikely to change in the foreseeable future.
22 In relation to diagnosis, it seems to me that this has been most accurately summarised by Mr Stephen Doig, orthopaedic surgeon, in his report of 6 September 2018. In relation to the plaintiff’s back, I accept that he suffers from a chronic low back strain in the setting of degenerative changes in the lumbar spine and some facet joint degenerative changes. This is consistent with the finding of the treating doctor, Dr Slesenger, who, as early as 27 August 2013, diagnosed a lumbosacral spinal strain, also subsequently referring to it as a soft tissue injury to the lumbar spine. The existence of degenerative changes in the lumbar spine seems to me to have been confirmed by the CT scan of 6 June 2011 and the MRI scan of 22 August 2011. The opinion of Mr Doig is also largely consistent with the opinion of Mr Brownbill, examining on behalf of the defendant. He considered that the plaintiff had sustained soft tissue injuries to structures about the lumbar spine with possible aggravation of mild lumbar spine degenerative changes. This was also consistent with the opinion of the Medical Panel to the effect that the plaintiff is suffering from lumbar spine dysfunction following a soft tissue injury in the setting of lumbar disc degenerative disease and facet joint degenerative disease. Accordingly, I accept the diagnosis of Mr Doig.
23 In relation to the left shoulder, I again accept the opinion of Mr Doig that the diagnosis is one of a clinically partial thickness tear of the rotator cuff with a chronic subacromial bursitis. Again, this seems to be consistent with the ultrasound result.
24 The plaintiff’s injuries would appear to represent aggravations of pre‑existing degenerative changes. However, I accept that the substantial and incapacitating symptoms from which the plaintiff suffers and upon which he relies did not pre-date the relevant employment with the defendant and that, as has been accepted, any incapacity from which he suffers flows from that employment.
25 Pursuant to s134AB(38)(h), consequences of a psychiatric or psychological nature are to be taken into account only for the purposes of paragraph (c) of the definition and accordingly I shall not take them into account. However, I note the opinions of the three psychiatrists who have seen the plaintiff at the request of the defendant and which are in essence to the effect that any psychological or psychiatric conditions do not contribute to incapacity for work. For example, I would refer to the opinion of Dr Shan.
26 I am also satisfied that the consequences of the plaintiff’s injury are permanent within the meaning of the Act in that they will persist for and through the foreseeable future. His treating doctor, Dr Slesenger, has described the prognosis as guarded. Mr Doig has described the prognosis as being “fairly poor” and thought that the plaintiff’s ongoing significant problems of which he complained were likely to continue into the foreseeable future. The Medical Panel expressed the view that the plaintiff has an incapacity for work in suitable employment which is likely to continue indefinitely. Mr Simm, examining on behalf of the defendant, has stated that the plaintiff’s entrenched chronic left shoulder and lumbar pain will persist without change. The plaintiff has been suffering from these symptoms for many years and in my opinion he shall continue so to suffer such pains and restrictions for and through the foreseeable future.
Other developments since the injury
27 As stated, the plaintiff has not worked since November 2011. He is the classified carer for his elderly mother. Whilst he is able to be of some assistance in relation to matters such as light cleaning, meal preparation and the like, assistance is also obtained from the local council in relation to such matters as self-care, showering and other heavier or awkward activities. The plaintiff has been undertaking the Auslan course in relation to sign language since February of this year. It would seem that he would have to complete successfully a further two years in order to hope to have any prospect of employment, which would probably be part-time, and even then it may be necessary to obtain enrolment in, and completion of, a diploma course thereafter. As earlier stated, the plaintiff has had limited education and has essentially worked as a “hands on worker”.
Ruling
(a) Loss of earning capacity
28 I am satisfied that the plaintiff has discharged the burden of proof in this regard. My conclusion is that the plaintiff’s earning capacity has been destroyed, primarily by reason of his back injury. In coming to this conclusion, I would point to the following.
29 Mr Paul Hartley is an occupational rehabilitation consultant. He provided a very lengthy report to the plaintiff’s solicitors, this including consideration of a Recovre report. His conclusion was that he was unable to suggest any suitable employment options for the plaintiff in relation to his left shoulder alone and his lower back injury alone. He was of the view that the plaintiff “will remain disenfranchised from the workforce into the foreseeable future”. He paid very considerable attention to various light work possibilities, but his conclusion was that which has just been set out.
30 Mr Hartley provided a supplementary report of 10 October 2018 for the purposes of considering some up-to-date medical material and the prospect of the plaintiff obtaining some work in the area of sign language. He pointed out that the gaining of a Certificate II in Auslan, and indeed even a Certificate IV, does not lead to a discrete job. He further referred to the prerequisites for the obtaining of a Certificate III and the need for digital literacy, numeracy assessments and the like, also expressing the view that he was very dubious that the plaintiff would be able to pass such requirements. Again it is a lengthy report. Mr Hartley referred to the plaintiff’s aspirations to work as a teacher’s aide at a School for the Deaf. His view was that the plaintiff’s ability to actually attain such work was minimal, having regard to his previous education, skills, experience and the relevant physical restrictions. Even if the plaintiff completed the required training, Mr Hartley did not believe that he would be considered a marketable or viable employment candidate. He remained of the opinion that the plaintiff was likely to remain substantially disenfranchised from the workforce into the foreseeable future.
31 The defendant has obtained three reports from Recovre. These are dated 18 May 2016, 29 May 2018 and 15 October 2018. It is clear that at no time was the plaintiff interviewed by anyone at Recovre. This is in marked contrast with Mr Hartley. Before his original and detailed report of 8 October 2018, he carried out a two hour interview with and assessment of the plaintiff. In my view, and particularly in a case such as this, that gives him a distinct advantage. In any event, various vocational options have been set out in the 74 pages of Recovre reports.
32 It was acknowledged in the initial Recovre report that the plaintiff’s work history is entirely within low skill employment, including factory labouring, product lifting, spray painting and the like. In its initial report, Recovre referred to work as a machine operator or quality tester, although subsequently there was reference to work as a forklift driver, picker or despatch packer. In its final report, Recovre referred to work as a stock or workshop clerk, a paint line process worker and a packer. I might say that none of these occupations impressed me as being suitable employment.
33 I prefer the opinion of Mr Hartley that the plaintiff is unable to suggest any employment option in relation to which he believed the plaintiff would be able to fulfil the inherent requirements and in the consistent and reliable manner demanded by industry. He noted the plaintiff’s long-term work profile in physically demanding, male dominated, unskilled or minimally skilled work. He has considered at some length suggested occupations in the Recovre reports and has rejected them as being suitable.
34 Essentially this was similar to the opinion of the plaintiff’s treating doctor, Dr Slesenger, who is also an occupational physician and who stated in his detailed report of 14 August 2018 that the plaintiff’s back injury alone would render him unable to return to work performing suitable alternative duties. Dr Slesenger took into account the plaintiff’s past occupational experience, lack of computer skills, literacy skills, symptoms, functional limitations and the like. I might say that this is also consistent with the opinion of Dr Helen Sutcliffe, also an occupational physician, that the plaintiff cannot return to employment taking into account his age, education, past work experience and the nature of his incapacity. Of course, it is to be recalled that a Medical Panel also came to the conclusion that the plaintiff had no current work capacity as at 24 February 2017 and that both the back and left shoulder injuries contributed to this.
35 Even leaving to one side the argument that the defendant must take the plaintiff as it finds him, it seems to me that, save for one matter to which I shall turn briefly, the plaintiff’s back injury alone has removed him from the workforce and I prefer and accept the opinions to which I have referred above. I also note in passing that the plaintiff remains on weekly payments of compensation as for total incapacity.
36 In considering the plaintiff’s capacity for work, one matter which I have left to one side in the above discussion concerns the course which the plaintiff is undertaking in relation to sign language – the Auslan course. The plaintiff is to be commended for this endeavour. Without wishing to be unduly pessimistic, I am far from satisfied that this attempt will result in paid employment.
37 The plaintiff’s treating doctor, Dr Slesenger, has clearly been aware of the plaintiff’s endeavours in relation to being an Auslan interpreter – see the report of 14 August 2018. However, he continued to express the opinion that the plaintiff would not be able to return to work performing suitable alternative duties by reason of his back injury alone.
38 In his supplementary report of 10 October 2018, Mr Hartley devoted considerable attention to possible employment for the plaintiff as a sign language interpreter. He pointed out that, even if the plaintiff managed to complete a Certificate II in Auslan, this does not lead directly to an employment outcome. Indeed, even if the plaintiff were to complete Certificate IV, and if this was within his learning capacity, such certification does not lead to a discrete job of work.
39 Mr Hartley paid particular attention to the Furlong Park School for the Deaf at which the plaintiff has hopes of working. Mr Hartley expressed the view that work opportunities at this particular establishment would appear to be slim. He also pointed out that, in this type of employment generally, training for a Certificate III in Education Support is required and an entry prerequisite for the course includes successful completion of relevant literacy, digital literacy and numeracy assessments. Mr Hartley expressed the view that he was very dubious that the plaintiff would be able to pass, due to his education and the difficulties that he had in relation to such things as computer study and general comprehension. His aptitudes were more mechanical. His ability to complete the required retraining, including the attainment of some computer skills far in excess of his current capacity, is realistically poor.
40 The plaintiff would also need to complete other courses, including Safe Food Handling and a First Aid Certificate with CPR. Even at a basic level, teacher’s aides are required to have demonstrated proficiency in the use of office systems, software or technical equipment. The plaintiff cannot meet these criteria.
41 In the opinion of Mr Hartley, even if the plaintiff was considered a marketable or viable employment candidate, in the unlikely event that he does complete the required training, he is likely to remain disenfranchised from the workforce into the foreseeable future. This is a carefully considered and well-researched view which I accept.
42 The end result is that I am of the opinion that the plaintiff has no capacity for suitable employment as a result of his back injury. Whilst there is no need for me to make a specific ruling in relation to it, I am also of the opinion that a consideration of the consequences of his left shoulder injury would lead to the same conclusion.
43 The plaintiff has satisfied me that, whether or not his underlying and pre-existing disabilities, such as profound deafness and cardiac problems, are taken into account, his back injury (and his left shoulder injury) has produced the consequence that he has lost his earning capacity completely.
(b) Pain and suffering
44 Given that the plaintiff has discharged the burden of proof in relation to pecuniary loss damages, the requirements of the Act in relation to pain and suffering damages have also been satisfied. I would refer to the decision of the Court of Appeal in Advance Wire and Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and various decisions of this Court.
45 In any event, the obvious impacts upon the plaintiff’s everyday life emanating from the back injury (and also from the left shoulder injury) are sufficient to satisfy the statutory requirements. The consequences could be fairly described as being more than significant or marked and as being at least very considerable.
Conclusion
46 The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings in respect of both pecuniary loss damages and pain and suffering damages.
47 I shall hear the parties as to any ancillary orders that are required.
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