Evans v Victorian WorkCover Authority
[2021] VCC 913
•21 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-04711
| MICHAEL JOHN EVANS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne (via Zoom) | |
DATE OF HEARING: | 22 and 23 June 2021 | |
DATE OF JUDGMENT: | 21 July 2021 | |
CASE MAY BE CITED AS: | Evans v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 913 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower back – residual capacity for suitable employment – plaintiff obtained alternative employment – whether the plaintiff’s residual capacity exercisable in other employment – comparison between what the plaintiff was earning and could earn in exercising his retained residual capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325(2)(f)(ii)
Cases Cited: Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd, [2009] VSC 454; The Herald and Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292
Judgment: Leave granted to the plaintiff to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr B Hill | Shine Lawyers |
| For the Defendant | Ms S Manova | Hall and Wilcox |
HIS HONOUR:
Introduction
1GTE Rail Victoria Pty Ltd (“GTE”) is a labour hire/recruitment company which contracted with McConnell Dowell Constructors (Aust) Pty Ltd and Martinus Rail Pty Ltd (“the host employers”) to supply labour for the Murray Basin Rail Project (“the project”). The plaintiff was hired by GTE and allocated to the host employers. His official designation was as a Track Worker Level 1.
2The plaintiff commenced work on the project in mid-October 2017. Essentially, he undertook labouring work. Part of that work involved replacing tens of thousands of railway sleepers between Maryborough and Swan Hill. The process involved using a pick and a sledgehammer in order to dislodge railway sleepers. It was in the course of using a pick on 28 December 2017 that he suffered injury to his lower back.
3The plaintiff submitted that the pain and suffering consequences were “serious”, but his major emphasis was on the loss of earning capacity consequences. The plaintiff submitted that if I was satisfied that was so, that it would then be unnecessary for me to separately consider the question of whether his pain and suffering consequences were “serious”. The plaintiff relied on the decision of Advanced Wire & Cable Pty Ltd v Abdulle.[1]
[1] [2009] VSCA 170 at paragraph [63] (“Abdulle”)
4The defendant submitted that the plaintiff could not demonstrate that he had suffered a loss of earnings of 60 per cent or more when a relevant comparison is made between the plaintiff’s “without injury” earning capacity and his “with injury” earning capacity. Nor that his pain and suffering consequences are “serious”.
5Mr C W R Harrison QC and Mr B Hill appeared for the plaintiff. Ms S Manova appeared for the defendant.
The Plaintiff’s medical treatment
6The defendant conceded that the plaintiff suffered a permanent impairment of the function of his lower back. It conceded that the medical evidence demonstrated that the plaintiff had suffered a soft tissue injury and an aggravation of pre-existing degenerative changes in his lower back.
7Furthermore, the parties both conceded that there is little difference in the medical evidence in terms of the identification of the injury, although, there is some difference of opinion concerning whether the plaintiff is fit or unfit for certain types of employment said to be “suitable employment”.
8The importance of the concession made by both parties in that respect is that the parties also conceded that it was unnecessary for me to undertake anything other than a simple and summary survey of the medical evidence.
9The plaintiff was initially taken to the St Arnaud Hospital and then to the Donald Hospital on the day he suffered injury. He first saw a physiotherapist, and then a general practitioner, at the Water Gardens Medical Centre (“the Medical Centre”) on 29 December 2017.
10A general practitioner at the Medical Centre referred the plaintiff for an MRI scan which was performed on 8 May 2018.[2] The radiologist noted that there was mild disc disease at L4-5 and L5-S1 without any other observable abnormality. The plaintiff was subsequently referred to Mr Patrick Lo, neurosurgeon. He wrote to the referring general practitioner on 17 August 2018,[3] 20 November 2018[4] and 15 January 2019.[5] The plaintiff saw Mr Lo on 17 August 2018. He recommended that the plaintiff have a second MRI scan. There is no reference to a second MRI scan in the Court Books nor is there any reference to a second MRI scan in any of the letters he wrote to the general practitioner. Based on this, I assume that the plaintiff did not have a second MRI scan.
[2] Plaintiff's Court Book (“PCB”) 59
[3] Defendant's Court Book (“DCB”) 355
[4] DCB 356
[5] DCB 357
11Mr Lo noted that the plaintiff was initially complaining of severe lower back pain and occasionally, pain radiating into both legs, but without any neurological deficits. He referred the plaintiff to a multidisciplinary pain management group for pain management.
12When he last saw the plaintiff on 15 January 2019, Mr Lo considered that the plaintiff had improved significantly following pain management. He considered there was nothing more he could do for the plaintiff, so he discharged the plaintiff from his care.
13The plaintiff was assessed by Dr Saleem Khan, physician in rehabilitation and pain medicine, to determine whether he was a good candidate for pain management on 31 August 2018 at Advanced Healthcare. On 7 September 2018, he was assessed by Dr Khan, and by a physiotherapist and a psychologist. They recommended that he undertake an eight to twelve-week program which required him to attend two to three times per week. The plaintiff attended the program. His description of the program is rather brief. He was treated with painkilling medication, including gabapentin and Versatis patches, physiotherapy and psychological sessions. He was discharged from the program in February 2019. He obtained a gym membership as part of the program, and I infer that he must have undertaken some gym work as part of his rehabilitation.
14The plaintiff saw an independent medical examiner through WorkCover, who recommended that he have cortisone injections into his lower back. He had those injections to both sides of his back on 31 March 2020. He did not say whether they were of any benefit or not.
15A general practitioner at the Medical Centre referred the plaintiff to Mr Hazem Akil, neurosurgeon, who referred the plaintiff for a further MRI scan, which was performed on 18 June 2020. The appearances on that MRI scan are similar to the appearances on the earlier MRI scan, dated 9 May 2018. There is no report from Mr Akil. The plaintiff said that Dr Akil told him that he did not require surgery.
16The plaintiff was referred to Dr Symon McCallum, pain physician who performed bilateral lumbar L5-S1 medial blanch blocks on the plaintiff some time in 2020. The plaintiff said that they gave him no long-term benefit.
17The plaintiff’s current treatment is relatively modest. He continues to have physiotherapy treatment on an approximate fortnightly basis. It comprises of remedial massage, core strengthening training, dry needling and the application of what the plaintiff described as “some type of machine”. He takes Panadol sparingly to obtain pain relief. He sees Mr Jason Telfer, psychologist, about once every two or three weeks.
The medico-legal assessments
18I will firstly turn to the plaintiff’s medico-legal examinations. The first of those was by Mr Ponnaren Pak, orthopaedic surgeon, who examined the plaintiff on 26 March 2019. He provided a report bearing the same date.[6] He considered that the plaintiff had suffered a paraspinal muscular injury with an element of degenerative change affecting the lumbar spine.
[6] PCB 79-83
19The plaintiff saw Mr Garry Grossbard, orthopaedic surgeon, on 30 September 2020. He provided a medical report dated 1 October 2020.[7] He re-examined the plaintiff on 11 May 2021. He provided a further report dated 13 May 2021.[8] After examining the plaintiff on two occasions, Mr Grossbard considered that the plaintiff had suffered a soft tissue injury to his lumbar spine in the presence of a level of underlying degenerative changes at both the L4-5 and lumbosacral levels. He suspected that the pain experienced by the plaintiff was largely facet joint mediated.
[7] PCB 63-67
[8] PCB 84-85
20Mr Grossbard considered that the plaintiff had a capacity for sedentary or semi-sedentary work, provided that he was able to sit and move around as required. He considered that he was fit for full-time work, although, he did not refer to the type of work he considered that the plaintiff could undertake. He considered that was unlikely to change significantly, and that the plaintiff would continue to have back pain with exacerbations from time to time.
21Dr Catherine Bones, consultant occupational physician, examined the plaintiff on 29 January 2021. She provided two reports, dated 17 February 2021[9] and 19 May 2021.[10] Dr Bones considered that the plaintiff suffered an aggravation of a pre-existing asymptomatic degenerative lumbar spine condition. The principal purpose in the plaintiff engaging Dr Bones was to obtain her opinion relevant to the proposal of the defendant that the plaintiff was fit for a number of jobs said to be consistent with suitable employment.
[9] PCB 68-77
[10] PCB 86-88
22The first of the defendant’s medico-legal examination was undertaken by Associate Professor Ian McInnis, senior specialist surgeon, who examined the plaintiff on 16 April 2018. He provided two reports, dated 19 April 2018[11] and 5 June 2018.[12] He considered that the plaintiff had suffered a musculoligamentous strain of his lower back, and that he may have aggravated underlying degenerative disease in his lumbosacral spine.
[11] DCB 28-34
[12] DCB 35
23Mr Philip Sharp, senior consultant surgeon, examined the plaintiff on 27 August 2018. He provided two reports, dated 3 September 2018[13] and 10 October 2018.[14] He considered that the plaintiff suffered an aggravation of pre-existing constitutional degenerative changes in his lumbosacral spine.
[13] DCB 36-41
[14] DCB 45
24Dr Simon Journeaux, consultant trauma and orthopaedic surgeon, examined the plaintiff on 31 May 2019. He provided a report dated 5 June 2019.[15] He re-examined the plaintiff on 23 November 2019. He subsequently provided a further report dated 27 November 2019,[16] and a supplementary report dated 8 April 2020.[17] He considered that the plaintiff suffered a musculoligamentous sprain of his lumbosacral spine and symptomatic aggravation of what he thought was likely to be facet joint arthropathy of the lumbosacral spine.
[15] DCB 46-57
[16] DCB 58-66
[17] DCB 67-68
25The short summary of the medico-legal assessments demonstrates that there is a preponderance of opinion supporting a diagnosis of a musculoligamentous injury to the lumbar/lumbosacral spine and an aggravation of pre-existing degenerative changes in the lumbar/lumbosacral spine and/or aggravation of facet joint arthropathy in the lumbosacral spine. Like so many serious injury applications, there is a divergence of opinion amongst medico-legal assessors, and the Judge is to divine from that which of the opinions are to be preferred. In this instance, the difference of opinion is less material, because the parties jointly have submitted that there is no issue that the plaintiff suffered an injury consistent with the diagnoses, that it results in some level of impairment of the function of the plaintiff’s lower back, and that the impairment is permanent.
The Plaintiff’s work
26The plaintiff was allocated to perform work with the host employers in October 2017. It was very highly paid work, and indeed, it would appear to be more highly paid than any work the plaintiff had previously undertaken.
27The parties agreed that the pay records disclose that from the date upon which the plaintiff commenced working for the host employers, he was paid a total of $29,207.25 gross over a ten-week working period. The plaintiff broke that figure down to $2,920.73 gross per week. Annualised, the plaintiff submitted that it amounted to $151,877.00 gross. He submitted that 60 per cent amounted to $91,126.00 gross per annum or $1,752.00 gross per week. The defendant accepted the accuracy of these calculations.
A fair reflection
28Section 325(2)(f)(ii) the Workplace Injury Rehabilitation and Compensation Act 2013 became a major focus in determining what most fairly reflects the plaintiff’s earning capacity had the injury not occurred.
29I was referred to Acir v Frosster Pty Ltd[18] in which J Forrest J observed that there are four likely scenarios which determine what most fairly reflects the earning capacity of the plaintiff without injury. The plaintiff submitted that I should prefer scenario (a), which would then require me to consider the gross income that the plaintiff was earning during the period of three years before and three years after the injury based upon proved facts.[19] The defendant invited me to consider all four scenarios. I have resolved the competing submissions of the plaintiff and defendant by preferring the plaintiff’s submission on which of the four scenarios I should apply and follow.
[18][2009] VSC 454, and also The Herald and Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292 at paragraphs [53]-[55]
[19] (ibid) at paragraph [165]
30The defendant submitted, however, that I should average out the plaintiff’s gross earnings rather than concluding that what most fairly reflects the plaintiff’s earning capacity without injury is $151,877 gross per annum. The defendant submitted that the plaintiff’s gross earnings over the ten weeks he worked with the host employers was an anomaly. It relied upon the evidence of Mr Mark Handley, who is the OH&S, IR Compliance Manager of GTE. He swore an affidavit on 9 February 2021 in which he said that the project came to an end in April 2018; that there was no guarantee the plaintiff would be offered ongoing work, and that it was highly unlikely that the plaintiff would have found similar high-paying work.[20]
[20] DCB 5-6
31Under cross examination, the plaintiff strongly contested the proposition deposed to by Mr Handley:
Q:“When you returned to Victoria in about August 2017 and you found work with this employer, GTE Rail, you’d never worked at that stage in the rail industry before?---
A:That’s correct.
Q:So this was your very first job in rail. How did you get the job?---
A:I got - I come home - before I moved home permanently, I come home for a couple of weeks to chase up some work. I didn’t want to come back to nothing. I was looking at – had a friend in construction who was going to try and get me back in there as a labourer. I had another friend who had some connections at – or knew of work going at GTE. And he said, ‘Would you want to do this?’, I said ‘Yes’.
Q:So you really needed to find some sort of job, and this was an opportunity that came up for you, but in a field that you’d never worked in. It was a casual job that was meant to be short term, wasn’t it?---
A:I was not led to believe that. I wouldn’t have taken it if I thought it was just going to end up in a couple of months.
Q:I suggest to you that it would’ve lasted for about six months. The Murray Basin Rail Project wasn’t something that was going to continue on forever. You understood it was a project to build something, and then there’d have to be something else afterwards?---
A:I understood that that position would’ve branched out. There was a lot of jobs nationally with the - all the work going on with the crossings around Victoria – Melbourne, Victoria, and also the Metro Tunnel opportunity was coming up, which John Holland was very heavily involved with. And they were heavily involved on site up at Murray Basin.”[21]
[21] Transcript 23-24
32I prefer the plaintiff’s evidence that he had a plan to enter into labouring work at the end of the project in the knowledge that it was likely to be available in the many projects which he referred to. Mr Handley’s evidence makes it sound as though the sky was going to fall in on the plaintiff’s head at the end of the project, and that there was no work anywhere of a similar kind, nor ever likely to be. Whilst Mr Handley can speak of that particular project, I do not accept that his evidence can go wider than his knowledge of GTE project work, and not a role which gave him a broader understanding of other projects and other employers.
33Therefore, I accept the plaintiff’s submission that I should reject the evidence of Mr Handley, and the defendant’s submission that the plaintiff’s employment with the host employers is an anomaly and accept that what most fairly reflects the plaintiff’s earning capacity without injury is $151,877 gross.
The comparators
34The plaintiff has been incapacitated for work of the kind he performed with the host employers. The defendant conceded as much. Under cross-examination, the plaintiff was asked about employment he obtained subsequent to ceasing work with GTE. Neither party concentrated much on that employment. Rather, they concentrated on the more substantive employment the plaintiff obtained with Orford Refrigeration, and the defendant’s submission that the plaintiff has a residual capacity which he is able to exercise in employment which I will refer to later in these reasons.
35At the time when the plaintiff swore his first affidavit on 23 June 2020, he had been employed by Orford Refrigeration in Queensland for about seven months. This would mean that he commenced work with Orford Refrigeration in either late December 2019 or into early January 2020. The plaintiff said that Orford Refrigeration manufactured commercial refrigeration. He was required to sell refrigeration to prospective purchasers, such as pubs, clubs, restaurants and commercial hire businesses. He mostly worked from home; however, he drove when necessary to see clients.
36The onset of the COVID-19 pandemic resulted in the reduction in sales of commercial refrigeration. Orford Refrigeration intended to set up business in Victoria, but it would appear that because of the pandemic, that it did not do so. The plaintiff ceased working for Orford Refrigeration in late March 2021 and I infer his reasons for doing so were due to the reduction in sales and the change of mind of Orford Refrigeration regarding setting up business in Victoria, both of which probably rendered him superfluous to its needs.[22]
[22] PCB 56
37Under cross-examination, the plaintiff said that he has applied for full-time employment since his employment with Orford Refrigeration came to an end. It was clearly the case that the plaintiff considered that he had a residual capacity which he could exercise in employment similar to what he was doing with Orford Refrigeration, and by inference, had the pandemic and economics not worked against him, it is likely that he would still be working with Orford Refrigeration.
38Under cross-examination, the plaintiff was taken to his résumé for the purpose of demonstrating that he had pursued the following employment:
· with Blue Circle Transport between 2004-2005 and 2007-2008 as a state operations manager/operations manager.
· with Proactive Recruitment is an employment consultant between 2008-2009.
· with Schiavello Manufacturing between 2009-2014 as a leading hand/OH&S support.
· with M & R Catering between 2014-2016 as a business development representative.
39The purpose behind the cross-examination was to demonstrate that the plaintiff had office-based skills consistent with the defendant’s submission that there was employment for which the plaintiff was capable of undertaking. Additionally, skills in lighter manual work, for example as a trades assistant, cable/satellite installer and traffic controller. It was not my impression that the plaintiff disagreed with much of the cross-examination in any material way.[23]
[23] Transcript 25-29
40The plaintiff was then cross-examined that there were a number of forms of employment for which he was qualified, and had the physical capacity to perform the tasks required of a person pursuing those forms of employment. The particular forms of employment relied on by the defendant are described in a report of Rehab Management entitled NES 130 Week Vocational Assessment Report dated 8 November 2019,[24] and a report of Recovre entitled Labour Market Analysis & Vocational Assessment Report dated 31 March 2021.[25] In the defendant’s very helpful written submissions, they relied upon the following forms of employment as being suitable:
· Business development manager[26]
· Sales representative[27]
· Customer service officer[28]
· Fleet compliance Co-ordinator[29]
· Fleet Manager.[30]
[24] DCB 77-92
[25] DCB 93-131
[26] DCB 87
[27] DCB 104-105
[28] DCB 106-109
[29] DCB 125-127
[30] DCB 128-129
41I agree with the plaintiff’s submission that the description of the business development manager job is theoretical. It appears to me to cobble together all of the duties, tasks, qualifications and physical environment that might be found in such a job. It is not an identification of a particular job. A particular job would identify the industry in which the employer is engaged, and from that it would be simple to identify duties, tasks, qualifications and the physical environment which might then lead to the plaintiff accepting that he has the residual capacity to do that job or to demonstrate that he cannot and why that is so. I think the description of the sales representative job and fleet manager job suffer from the same vice. I am not satisfied that there is a sound evidentiary basis upon which I can determine whether these three jobs are suitable or not.
42The need for the defendant to identify a particular job is made all the more important because of the plaintiff’s evidence of the difficulties he has with pain, bending, standing, sitting and the need to take medication to treat the pain, albeit low level usage and only intermittently.[31] The leg pain which he was troubled by at one point has receded significantly. Under cross-examination, the plaintiff was referred to aspects of his affidavit wherein he referred to having pain all day every day. He described the pain as being a constant dull ache. He described needing to change his posture after sitting or standing for certain periods of time. When the plaintiff was asked to give some visual analogue measurement of the pain he suffers, he described it as being typically six to seven out of ten.[32]
[31] PCB 54-55
[32] Transcript 12-18
43I accept the plaintiff’s evidence that he has pain at the level he described, and has difficulty maintaining various postures and engaging in various physical movements. Why I referred to the need for the defendant to identify a particular job as being very important is because as a matter of fairness to the plaintiff, he should be exposed to what the tasks involved in the proposed job entail in order to determine whether he would be physically able to meet the demands of the tasks involved in that job.
44I agree with the plaintiff’s submission that the wage payable to a fleet compliance coordinator of $88,000 gross per annum includes superannuation which should be deducted to arrive at the relevant gross income. The plaintiff submitted that, in any event, whether the gross income per annum is $88,000, or a lesser sum, is less than $91,126 gross per annum and is, therefore, of no consequence.
45I think the better measurement of the plaintiff’s practical and reliable residual capacity is the job he performed with Orford Refrigeration. It had elements both of work from home and seeing clients. The plaintiff was able to undertake that work, and as I have already observed, it is probable that if the pandemic had not occurred, then he would still be working for Orford Refrigeration. The parties agreed that the annualised gross income per annum for that job is $71,084 or $1,376 gross per week.
46There is a contrast in the medical evidence relevant to the plaintiff’s capacity to undertake suitable employment. Dr Journeaux was asked to consider whether the plaintiff had the capacity to undertake the employment options listed in occupational rehabilitation reports he was provided. I assume they are the same jobs which the defendant submitted ought to be considered. He blandly, and without explanation, considered that the plaintiff is fit for all of the jobs. Dr Bones was asked to do the same. Whilst she considered that the plaintiff was fit for the proposed jobs of sales representative, customer service officer, information officer and fleet compliance officer, she qualified that opinion with recommendations relevant to a workstation assessment and provision of a sit/stand desk.
47I prefer Dr Bones’ opinion. It analyses each of the proposed jobs and provides a considered opinion as to whether they are suitable or not. Her opinion fortifies me in the conclusions I have reached about the suitability of the proposed jobs, because it appears to me that they require greater consideration of their suitability given the qualification which underwrote Dr Bones’ opinion.
Conclusions
48Firstly, I accept the plaintiff’s evidence that he suffered a significant enough injury to his lower back to preclude him from returning to his pre-injury employment.
49Secondly, I accept the plaintiff’s evidence that he suffers pain and interference with his posture and movements consistent with his evidence which I have briefly summarised above.
50Thirdly, I do not accept the defendant’s evidence that the plaintiff has a residual capacity which he can exercise in jobs of the kind which the defendant has referred to, given the unsatisfactory nature of that evidence, and the evidence of Dr Bones.
51Fourthly, I accept the plaintiff’s evidence that he has the residual capacity which he can exercise in work with Orford Refrigeration.
52Fifthly, I am satisfied that when a comparison is made between what the plaintiff is capable of earning in suitable employment, that he is not capable of earning more than $91,126 gross per annum.
53Lastly, I am satisfied that the plaintiff’s loss of earning capacity consequences are, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.
54In the circumstances, these conclusions I do not need to provide separate reasons relevant to the pain and suffering consequences contended for by the plaintiff in conformity with Abdulle.[33]
[33]Supra
55I will grant the plaintiff leave to bring a proceeding at common law to recover damages for both pain and suffering consequences and loss of earning capacity consequences.
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