Fastuca v Victorian WorkCover Authority
[2023] VCC 458
•30 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-00508
| MATTHEW FASTUCA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 March 2023 | |
DATE OF JUDGMENT: | 30 March 2023 | |
CASE MAY BE CITED AS: | Fastuca v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 458 | |
REASONS FOR JUDGMENT
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Subject:WORKPLACE INJURY
Catchwords: Serious injury – physical injury – pecuniary loss
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35
Judgment: Leave is granted to the plaintiff to commence common law proceedings for pain and suffering and pecuniary loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Mr A Saunders | Maurice Blackburn Lawyers |
| For the Defendant | Mr R Kumar with Ms J E Clark | Russell Kennedy |
HIS HONOUR:
Overview
1This is a “serious injury” application in respect to a workplace injury. Ultimately the sole issue for determination is whether a qualified plumber, who can no longer work as a plumber because of a leg injury, has established an “after injury” loss of earning capacity that entitles him to be given the leave of the Court to commence a proceeding for pecuniary loss damages.
2For the reasons that follow, I consider that the plaintiff has established the requisite loss and is entitled to commence a common law proceeding for both pain and suffering and pecuniary loss damages.
Introduction
3The plaintiff, Mr Matthew Fastuca, is now 42 years of age. He is married with three small children. He currently lives with his family in Tarneit.
4The plaintiff completed Year 12. He then completed an apprenticeship as a plumber. His working life has been spent as a plumber.
5In approximately January 2018, the plaintiff commenced employment with Bolsons Plumbing Pty Ltd (“the employer”) as a plumber. He was working with the employer on 20 June 2018 at premises in Altona North. He was up a ladder attempting to repair roof guttering, when the ladder gave way, causing him to fall several meters. As he fell, his left leg became twisted, and he fell heavily to the ground, suffering injury to his left leg and to a lesser extent his left shoulder (“the incident”).
6There is no dispute that the incident occurred. There is no dispute that the plaintiff suffered injury to his left leg.
7The plaintiff claims to have suffered a “serious injury” within the meaning of s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Specifically, he does so on the basis of sub-paragraph:
(a) a permanent serious impairment or loss of a body function, namely the injury to the left lower limb; or
(c) a permanent severe mental or permanent severe behavioural disturbance or disorder.
8The plaintiff seeks the leave of the Court to commence a common law proceeding for both pain and suffering consequences and loss of earning capacity consequences from either or both of the left leg injury or the psychiatric injury, bearing in mind that the consequences from each of those injuries cannot be combined for serious injury purposes.
Pain and suffering for the left leg was conceded
9The defendant conceded that the plaintiff suffered a “serious injury” by way of a “very considerable” pain and suffering consequence from the accepted compensable left leg injury. It disputed that the plaintiff has suffered a “very considerable” pecuniary loss consequence from the left leg injury.
10In the alternative, the defendant disputed that the consequences from the claimed psychiatric injury were “serious” because such consequences were not “severe” either in respect of pain and suffering (although to some extent that is a moot point, given the concession regarding the physical injury) or pecuniary loss consequences.
11The proceeding was conducted in the “usual manner”. The plaintiff tendered four affidavits sworn by him and gave oral evidence in respect to the contents of his affidavits and relevant matters. In addition, he tendered relevant medical reports and documents relied upon by him, as contained in his Court books. The defendant tendered a Court book and other documents relied on by it. I have considered all of the evidence, including the transcript of the plaintiff’s oral evidence, but I shall refer to it only to the extent necessary.
12The proceeding does not otherwise raise any novel legal propositions. The resolution of this proceeding involved the application of well-known legal principles to the facts as determined.
The evidence of the plaintiff
13It is convenient to commence with a consideration of the plaintiff’s affidavit and oral evidence. But, at the outset, it is also convenient to note that this is not a proceeding in which the defendant brought into issue the credit of the plaintiff. The plaintiff suffered an obvious injury to his left leg. During his oral evidence, he presented as a quiet and reserved man. He appeared to do his best to answer questions asked of him, but at times required clarification so as to understand what was being asked of him. In what is not meant to be a disparaging assessment, he struck me as someone who was a tradesman and not a scholar, consistent with his education and work history.
14In any event, commencing with his affidavit evidence, in his first affidavit, sworn 30 September 2021,[1] he set out his employment background and the circumstances of the incident, together with the treatment thereafter. He described how he had undergone several surgeries to his left knee and left shoulder.
[1]Plaintiff’s Court Book (“PCB”) 13.
15In respect to a return to work, he described a return to work with the employer in about August or September 2020 and working three hours per week on light duties. He found the driving difficult and working on uneven ground to be difficult.[2] He lasted in that return to work for approximately eight weeks before he could no longer continue. He has not worked for the employer since then.
[2]PCB 19.
16Pausing here, the defendant also conceded that the plaintiff’s left knee injury prevented him from returning to his pre-injury employment as a plumber. In my opinion, the inability to return to pre-injury employment is a “very considerable” consequence for the purposes of s325(2)(c)(ii) of the Act. Therefore, in respect to the physical injury claim, the remaining consideration is whether the plaintiff has the requisite 40 per cent loss of earning capacity in accordance with the ‘statutory formula’ contained in s325(2)(e),(f) and (g) of the Act.
17Returning to his first affidavit, the plaintiff described constant pain in his left knee, with the knee swelling if he tried to do too much, and the pain progressively worsening throughout the day. He said that he could not kneel, squat, or twist his left knee, and had difficulty with uneven ground or going up and down stairs. His left knee pain was aggravated by any prolonged sitting, standing, or walking.[3]
[3]PCB 20.
18In the first affidavit the plaintiff also set out social, domestic, and recreational restrictions, such as his inability to do things around the house, garden, play golf, or spend time with his young sons. There was no challenge to any of that evidence, consistent with the concession that the left knee produced a “very considerable” pain and suffering consequence. I also consider that evidence to be broadly relevant when considering what, if any, residual capacity for employment exists.
19The plaintiff swore a second affidavit on 15 November 2022.[4] That affidavit set out ongoing treatment, pain and suffering symptoms, and relevant evidence of return to work and work capacity. He confirmed his evidence in the earlier affidavit of having completed a Certificate IV in Training and Assessment and of having also gone on to complete a Certificate III in Civil Construction Plant Operations. It is convenient to set out this evidence in full as follows:
[4]PCB 25.
“Retraining
18. Further to paragraph 44 of my first affidavit, I add that:
a.I struggled with the study involved in the Certificate IV in Training and Assessment; and
b.I needed a good deal of assessment assistance from my wife.
19. I also clarify that when I started the course, I was still undergoing active treatment, and I was hopeful that my knee condition would improve.
20. However it did not, and in fact, it is worse. Therefore, I do not believe that I could work as a trade instructor – for the reasons set out in paragraph 44.
21. In early 2021 I was offered a job as a trade teacher by Victoria University, but neither my GP nor my physio would clear me for the hours required for the job.
22. I also completed a Certificate III in Civil Construction Plant Operations but had real difficulty operating mobile plant due to knee pain and stiffness.
23. As a result, I do not believe that I could work as a plant operator either.
Work Capacity
24. I do not believe that I am able to do any form of work, because of my knee condition.
25. That is, I could not cope with my pre-injury duties, or any form of manual work; it would be too hard on my knee.
26. I do not believe that I could do office work either – at least not reliably and consistently. I find it difficult to sit for long periods, and often struggle to concentrate because of knee pain.
27. Anyway, I do not believe that I am suited to office work: I do not have the skills or experience. I have very little in the way of computer skills; I also struggle to read and write at anything beyond a basic level.”[5]
[5] PCB 28-29.
20The plaintiff swore a third affidavit on 14 December 2022.[6] In that affidavit, he said about his work capacity that:
“Work capacity
2. Further to paragraph 21 of my second affidavit, I add that I also interviewed for a trade teacher’s job at Gordon TAFE, again in early 2021.
3. At that stage, I still had some hope that I may yet be able to work as a trade teacher; it was around the time that I was referred to Dr Naidu, and I was hopeful that my knee condition would improve with further treatment (it did not).
4. In any case, I was told in the interview that the TAFE wanted someone straight away. I said that I was still undergoing treatment, and that I was not yet physically able to do the job; I did not hear from the TAFE again.
5. Finally, I add, too, that, earlier this year, a friend who owns a landscaping business told me that he may be able to offer me some part-time light work – as a ‘gopher’.
6. Having thought about it, however, we both decided it was a bad idea. I decided that it would be too hard on my knee, and he decided that he did not want to take a risk that I might suffer further injury.”
[6]Plaintiff’s Supplementary Court Book (“PSCB”) 4.
21Finally, the plaintiff swore a very recent affidavit on 16 March 2022.[7] That affidavit mostly dealt with a more recent right knee problem and his psychiatric problems, but relevant to the left knee injury he said that it, on its own, “prevents me from undertaking suitable employment”.[8]
[7]PSCB 6.
[8]PSCB 8.
Cross examination about work capacity
22The plaintiff was cross-examined about his affidavits and his evidence of incapacity for work.
23It is useful to put the cross-examination in context.
24The context comes from medical reports obtained by the defendant, in particular from Mr Michael Dooley and Dr Mary Wyatt and from vocational assessments otherwise undertaken at the request of the defendant. The defendant had obtained reports much earlier in time from Dr David Barton[9] and Dr Umberto Boffa.[10] Those reports chart the plaintiff’s early response to the injury and attempt at a return to work and study, and provide some background context, but otherwise are out of date and of limited use.
[9]Defendant’s Amended Court Book (“DACB”) 103.
[10]DACB 130.
25However, Mr Dooley and Dr Wyatt provided more recent reports specifically dealing with the plaintiff’s residual capacity for work in the context of four jobs identified in a vocational assessment report of Nabenet dated 14 January 2022 (“the Nabenet report”).[11] Those four jobs were as a plumbing trades sales assistant, a plumbing and mechanical services teacher (TAFE teacher), a weighbridge operator, and a pathology courier. In the broad, Mr Dooley and Dr Wyatt consider one or the other of those jobs to be acceptable “after injury” employment for the plaintiff. I shall return to discuss those opinions in more detail after a discussion of the plaintiff’s evidence, because much of the oral evidence was directed to the jobs considered by Mr Dooley and Dr Wyatt to be “suitable employment” for him “after injury”.
[11]DACB 245.
26In his oral evidence, the plaintiff confirmed that his ongoing treatment is physiotherapy with Mr Danny Low.[12] That is mostly in a pool and self-management with review by the physiotherapist maybe every three months or so.[13] Otherwise he continues with ongoing psychological treatment every two or three weeks.[14]
[12]Transcript (“T”) 10, Line/s (“L”) 29.
[13]T 11, L 12.
[14]T 12, L 3.
27The plaintiff was asked about completing further training since the incident. He confirmed he had obtained the Certificate III in Civil Construction. It was a one-day course where, over two 4‑hour periods, he completed the theory and practical component to obtain a licence to operate an excavator and a skid-steer (Bobcat).[15] He had a friend who had a landscaping business and there was consideration as to whether he could do some part-time work in that business once he obtained the Certificate III. It would have been more of a casual position, but he never gave it a try because it never came to be available.[16] He was asked, if he had been offered some work, whether he would have given it a crack, and he said “Yes.”[17]
[15]T 13, L 27-30.
[16]T 15, L 29.
[17]T 16, L 17.
28The plaintiff was next asked about his Certificate IV in Training and Assessment. He explained how that was completed and obtained online during COVID. It included written work. He had to complete a number of modules with assessment.[18] The defendant tendered the results of those assessments.[19]
[18]T 22, L 23-28.
[19]Exhibit D2.
29The plaintiff was cross-examined about his affidavit evidence of help from his wife with the Certificate IV. She helped with everything from learning how to open Zoom to correcting his grammar.[20] The thrust of the cross-examination was that the plaintiff had the intellectual capacity to complete the Certificate IV in Training and Assessment, to which he broadly agreed, although emphasising that he was not particularly computer savvy and required some help from his wife. It was put to him that the course would permit him to undertake teaching roles at a TAFE in plumbing, and that fitted in nicely with what he had been hoping he would be able to do with his physical restrictions, to which he agreed.[21]
[20]T 23, L 27.
[21]T 25, L 12-15.
30He was next cross-examined about potential job offers at Victoria University and/or the Gordon Institute. He accepted there was talk of a casual position at Victoria University, but that fell through because his physiotherapist, at that time, was only willing to certify him as fit for four hours a week.[22] He agreed he wanted to give that job a go.
[22]T 26, L 22-24.
31He was then asked:
Q:“But you were confident that, if your capacity or your certification increased, then you would get teaching – you’d be able to get teaching work; you were confident of that?---
A:I was hopeful, yeah.
Q:The concerns that you had around this time at the end of your Certificate IV course and speaking to The Gordon and Victoria University, the concerns that your physiotherapist in particular had were about the number of hours that you’d have to be spending working?---
A:Sorry, can you repeat the question? Sorry.
Q:This period that we’re talking about, early 2021 where there’s discussions with Victoria University and The Gordon about potential teaching work for you, in that period the concern that your physiotherapist had as you understand it was the number of hours that would be involved?---
A:Yeah. Yes.
Q:In your affidavit – this is plaintiff’s court book 28, Your Honour - - -
…
Q:- - - you say you don’t think you can do the hands-on demonstrations of plumbing work in a workshop?---
A:Yes.”[23]
[23]T 29, L 1-22.
32The plaintiff went on to explain that he ruled out TAFE teaching “because of the physical side”.[24] But he agreed that he would have given a few hours of teaching a go if it had been offered to him, but in the same breath said that he now did not think he could give it a go. He said:
“I think that I’ve been out of plumbing for a while that I don’t think I could mentally, and I don’t have the smarts to do that job anymore, to be honest.”[25]
[24]T 30, L 1.
[25]L 30, L 13-16.
33The plaintiff then expanded upon his residual incapacity to work as a plumber when he said:
“I can answer the question. Plumbing is – the regulations have changed, everything has changed in my five years off work. I still keep in contact with a couple guys who plumb and when they talk I just don’t understand what they’re talking about. I don’t – I’ve just – I don’t know, I just – something’s happened and it doesn’t – it’s not there anymore. So whether I don’t understand the new stuff that’s come in or, um, yeah, but it’s really quite - - -”[26]
[26]T 31, L 14-22.
34The plaintiff was cross-examined further about the jobs in the Nabenet report. Broadly, he accepted that he would have the technical knowledge for those jobs, even if he lacked good computer skills. But the substance of his evidence was about whether he would have the residual physical capacity.
35In that context, he described how he would not be able to sit in a car or a machine for long periods of time, consistent with having physical difficulty completing the Certificate III. He described himself as having been very lucky to get that certificate.[27] He gave evidence of how he tried to get a heavy truck licence but could not understand the theory associated with that, but that was also directed towards helping his mate out with the landscaping business.
[27]T 35, L 2.
36The plaintiff was cross-examined about TAFE teaching, and said he did not think he would now be capable of that, even on a part-time basis, because “I don’t think that I have the skills that – to do it, yeah”.[28] He said he did not think he would have the skills for the theory side of taking a classroom.
[28]T 38, L 19-21.
37He was then cross-examined about a weighbridge operator’s job. He said that sitting would be hard all day on his left knee in a little box, “yeah, that would be quite difficult”.[29] But he agreed that it was something he could learn and try. He said:
“It just depends on whether I – my left knee could handle sitting in on the chair all day; I don’t know whether I – that’s the problem.”[30]
[29]T 39, L 29-30.
[30]T 40, L 11-13.
38He was next asked about working as a pathology courier. He said he did not think he could drive all day with his left knee.[31]
[31]T 41, L 2.
39In re‑examination, he gave evidence that his confidence is now terrible. He was asked whether he could see himself mentally being in a position to manage other people, and said “No.”[32]
[32]T 43, L 3.
40In re‑examination he was also asked about having a job requiring him to drive day in, day out, and how his knee would cope. He said “It wouldn’t. It wouldn’t cope”.[33] He described his reliability for that type of work now as “[n]ot very good.”
[33]T 43, L 13.
41Specifically about TAFE teaching, he was asked from his recollection during his training how much time he spent in theory and how much is in demonstration, and he said “80 per cent”.[34] He was then asked:
Q:“What’s the problem with you demonstrating various tasks that a plumber needs to undertake?---
A:Um, so the whole sewer and drainage is in a sandpit of digging, which is, like, I’m a left-footer so I can’t use a shovel. Everything’s on your knees, everything’s on a ladder, it’s – the whole thing is - doesn’t accommodate.
Q:And what would happen if you actually undertook that sort of work that required you to demonstrate those types of activities?---
A:I would have really bad left knee pain, um, or injure my self further.”[35]
[34]T 45, L 16.
[35]T 45, L 19-28.
42Then in response to a question from the Court, he said further about teaching that:
A:“Yeah, you have to show them pretty much what to do or demonstrate all the – I think they call them modules now – before you do it because they don’t know how to do it, so every kid in every – even from another class will drag you over to show you something. So, even if I’m doing maybe one thing, I could be dragged into the sandpit to dig and I can’t do the digging, I guess, so it’s - - -
Q:Okay. So they have – they try and replicate real life scenarios, do they?---
A:Oh, they do, yeah, absolutely. They’ve got a whole house there for facia and spout on, yeah, the whole - - -”[36]
[36]T 46, L 3-14.
43He was asked about estimating or quoting and explained that he would not be able to do that on tight spaces or uneven ground.
44As mentioned, the plaintiff came across as someone with a background in a trade and not as a scholar. He has no formal teaching qualification, other than for trade teaching as a plumber. I consider that he gave reliable evidence. I take into account his work history and also his description of what is involved in trade teaching when considering the medical evidence in context.
The medical evidence
45The obvious issue in this proceeding is whether a man now aged 42 years of age, with a Year 12 education and the intellectual capacity to at least obtain a Certificate IV in Training and Assessment, is now totally unemployable by reason of either the left leg injury or the psychiatric response. As I said to his counsel during the proceeding, it is a big ask to say at his age, and given his background, that he is unemployable. In that context, I turn to consider the medical evidence.
Plaintiff’s medical reports
Dr Ruthra Nagendran
46The plaintiff’s treating general practitioner, Dr Ruthra Nagendran, provided four reports. Because much of the medical evidence is not in dispute, I do not need to deal with all of his reports. His most recent report is dated 8 March 2023[37] and substantially repeats the matters set out in his earlier reports. He noted the left knee injury and a long and protracted clinical course after it, including multiple surgeries. He said that as a consequence of the left knee injury the plaintiff would be unable to ever return to his pre-injury duties.[38] He expressed a similar opinion about the plaintiff’s psychiatric condition.
[37]PSCB 20.
[38]PSCB 21.
47In respect to the plaintiff’s left knee injury, Dr Nagendran said:
“As a consequence of Mr Fastuca’s left knee injury alone, he is likely to be precluded from performing suitable employment for the foreseeable future, taking into account his incapacity, age, education, place of residence, skill and work experience.”[39]
[39]Ibid.
48Next, as a consequence of the psychiatric injury, he said:
“As a consequence of Mr Fastuca’s psychiatric injury alone, he is likely to be precluded from performing suitable employment for the foreseeable future, taking into account his incapacity, age, education, place of residence, skill and work experience.”[40]
[40]PSCB 22.
49Dr Nagendran said regarding the physical injury and impairment of the left knee alone, the plaintiff was precluded and restricted in relation to the following activities for the foreseeable future:
“i)He cannot stand for long periods due to pain and instability. He walks with a limp due to pain and instability.
ii) He cannot lift any weights or perform any twisting movements involving the left knee alone. He is physically incapable and incapacitated from this particular activity.
iii) He can only sit for short periods of time due to pain of the left knee even at rest.
iv) He cannot kneel or squat due to pain and instability.
v) He has significant impairment when climbing stairs on account of pain. He requires rest breaks and avoids stairs unless absolutely necessary. He is completely unable to use a ladder, this particular activity was the cause of his original injury and attempting this again would be severely injurious to his health. This is an activity he should never undertake again.”[41]
[41]PSCB 23.
Mr Danny Low
50Mr Danny Low is a physiotherapist at Hoppers Physio who has treated the plaintiff and provided reports. The first of those reports is dated 5 October 2020,[42] and was provided as part of the plaintiff’s return to work with the employer. Mr Low recorded that the plaintiff had reported an increase in symptoms in his left knee directly linked to the nature of his return to work efforts.
[42]PCB 71.
51Next, Mr Low provided a report dated 16 March 2021.[43] He noted he had been treating the plaintiff since 26 July 2018 for the left knee. In respect to work capacity, he then opined that the plaintiff:
“has the capacity to perform 4 hours per week of sedentary duties. During any time at work, he should be afforded the ability to rest when needed which may involve standing up and walking around.”[44]
[43]PCB 72.
[44]PCB 73.
52Then in a recent report of 2 March 2023,[45] Mr Low set out in detail the physical restrictions that he now placed on the plaintiff’s left knee.[46] In respect to suitable employment, he said the plaintiff was:
“Suitable for a mixture office/administrative and teaching/supervisory employment that involves both sitting/driving, standing and walking all at short cyclical intervals.”
[45]PSCB 14.
[46]PSCB 15.
53Mr Low placed further restrictions on the left knee of a maximum sitting of 1 hour, standing of 5 minutes, walking of 500 metres in one bout before rest, and to avoid uneven surfaces. In accordance with those restrictions, he said that the plaintiff would be capable of performing:
“12−15 hours per week. 4−5 hours per day, 3 days per week”,
and that those restrictions in regard to maximum hours per week may increase to:
“25−30 hours per week.”[47]
[47]PSCB 17.
Mr Shane Blackmore
54Mr Shane Blackmore is the plaintiff’s treating orthopaedic surgeon and has provided correspondence and reports regarding the plaintiff. In a report dated 10 March 2021[48] he noted the plaintiff continued to be bothered by his left knee, and essentially then had signs of traumatic arthritis affecting the knee, and hence he was getting pain and swelling and had decreased function. In regard to work, he said:
“In terms of suitable work Matthew would be limited to non weight bearing and non high functioning lifting type activities. Matthew may be best suited to desk type activities moving forward with his knee in its current state.”[49]
[48]PCB 65.
[49]Ibid.
Dr Krishant Naidu
55Dr Krishant Naidu is a specialist who has treated the plaintiff by way of PRP injection therapy to the left knee. In a report dated 19 March 2021,[50] Dr Naidu noted that the plaintiff had then undergone a PRP injection to the left knee. In a letter dated 30 April 2021 to Mr Blackmore, Dr Naidu noted that the plaintiff’s knee was much the same after the injection and further noted symptoms.
[50]PCB 66.
56Consistent with his diagnosis of post-traumatic left-knee osteoarthritis, Dr Naidu then set out possible treatment options for that condition, if the PRP treatment was unsuccessful.[51]
[51]PCB 67.
57Then, in a further note to Mr Blackmore dated 7 May 2021, Dr Naidu noted the plaintiff continued to be troubled with activity-related left knee pain, and he had presented that day for the third PRP treatment.[52]
[52]PCB 69.
Ms Antoniette Graham
58Ms Antoniette Graham is a psychologist who has treated the plaintiff. She provided three reports. Her first report is dated 17 September 2021.[53] She described the treatment provided by her to that date. The plaintiff had expressed an interest to her in returning to work in some capacity, but he was unsure as to what type of work that might be. She noted the plaintiff to be concerned about long periods of time sitting, such as would be in lecturing or tutoring work or driving work. She described the plaintiff’s prognosis as “looking promising”.[54]
[53]PCB 74.
[54]Ibid.
59In a further report, dated 6 April 2022,[55] she again set out the plaintiff’s presenting symptoms and the treatment provided by her. She described the plaintiff as being disappointed in his physical limitations preventing him from re‑entering the workforce. She noted the plaintiff had undertaken a TAFE course but that his physical limitations led to this no longer being a feasible option for him (which is a comment directed towards physical restrictions and outside her area of expertise). She noted the plaintiff’s mental health symptoms, his physical injuries and that his inability to participate fully socially, domestically, and recreationally often left him saddened and depressed, and there was a need for ongoing counselling.[56]
[55]PCB 76.
[56]PCB 77.
60Ms Graham most recently reported on 9 March 2023.[57] She said it would be great for the plaintiff’s mental health if he could participate in work in some capacity. She said a vocational psychologist might be more adept at providing suitable employment options, and that the plaintiff was limited only by his physical capacity.[58]
[57]PSCB 24.
[58]Ibid.
61Ms Graham’s reports are thorough, and she seems to have a good grasp of her patient’s psychological and physical situation. Her opinions tend against a conclusion of a “severe” psychological condition.
The plaintiff’s medico-legal reports
Dr Iain McLean
62Dr Iain McLean is an orthopaedic surgeon. He examined the plaintiff at the request of his solicitors and provided a report dated 20 January 2022.[59] Dr McLean set out the history, complaints, and his consideration of investigations. He described his findings on examination. He diagnosed a comminuted depressed fracture of the lateral tibial plateau of the left knee, plus an anterior cruciate ligament repair, which had been treated surgically. He described ongoing complex pain and functional disability. He provided his opinion of the physical restrictions from the diagnosed left leg/knee injury. He said the plaintiff would be unable to return to his pre-injury employment as a plumber because of the left knee.
[59]PCB 80.
63Dr McLean was asked questions about suitable employment in relation to the left knee, which he answered as follows:
“These problems and limitations have been alluded to in the above report with him having these ongoing pain and functional limitations of the left lower limb.
Noting that he is just 41 years of age, but his prior work and education has been relative to plumbing. He did undertake a course to consider teaching in a TAFE setting but he has been unable to perform those activities as he cannot demonstrate some of the required activities.
He has the limited computer skills and other education to consider a more administrative and supervisory roles in other lines.
We do however always need to take into consideration ‘the whole person’ and this does then include his left shoulder problems, but specifically also the complex pain and the secondary psychoemotional impacts; and problems that are out of my line of expertise but all impacting his work capacity.
(7) If you consider that Mr Fastuca has the capacity for suitable employment please state –
(i) what type of work you consider to be suitable employment;
Any possible work for the future would need to light and sedentary in nature where he could sit for a period and stand for a period and be able to move about without any loading onto that lower limb.
(ii) what restrictions ought to be imposed on his duties;
This has been outlined above whereby he should not be standing for long periods, working on uneven surfaces, not needing to perform squatting, kneeling twisting or climbing of ladders or multiple stairs.
(iii) the maximum number of hours per week you consider that he would be capable of performing over a sustained period.
Unable to determine at this stage until looking at his ongoing improvements of physical and mental health.
(iv) whether the restrictions are likely to last for the foreseeable future.
Yes; but we do need to keep an open mind for a young 41-year-old male needing to pursue various and appropriate both physical and emotional and educational.”[60]
[60] PCB 87-88.
Dr Nigel Strauss
64Dr Nigel Strauss is a consultant psychiatrist who examined the plaintiff and provided a report dated 9 March 2022.[61] Dr Strauss took a history from the plaintiff, conducted a mental state examination and a review of relevant material, before expressing his opinions. He diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood. He said:
“When all factors are considered from a psychiatric perspective this man is not capable of his pre-injury duties for the foreseeable future.”
[61]PCB 90.
65He went on to say that considering the psychiatric injury, the plaintiff:
“may be capable of working a few hours a day in a sedentary, simple job but taking into account his limited his age, education, skills and work experience, I am doubtful that this man will successfully be re‑employable.”[62]
[62]PCB 96.
Dr Joseph Slesenger
66Dr Joseph Slesenger is a specialist occupational physician who examined the plaintiff and provided reports to his solicitors. In his first report, of 27 April 2022,[63] he took a history, reviewed various documents, conducted an examination, and then expressed opinions about the injury and work capacity. He said in summary that the plaintiff presented with chronic left knee pain, stiffness and restricted range of movements, instability, and his left knee was prone to giving way.[64] Then, in respect to the left knee, he placed the following restrictions on activities as follows:
“· Walking and standing for up to 20 minutes.
· Avoid push, pull and carry lift over 5 kg.
· Avoid repetitive rotational tasks.
· Avoid sitting for greater than 30 minutes.
· Avoid kneeling or squatting.
· Avoid use of stairs.
· Avoid use of ladders.”[65]
[63]PCB 100.
[64]PCB 115.
[65] PCB 116.
67Dr Slesenger opined that, based on the left knee injury alone, the plaintiff could not return to his pre-injury employment, and that taking all things into consideration he did not anticipate the plaintiff returning to work performing suitable alternative duties on a consistent and reliable basis.[66] In light of that opinion, it is perhaps not surprising that when he was asked to comment upon various vocational assessment and jobs identified, that he ruled those jobs out as being unsuitable because of the left knee impairment. He broadly described the identified jobs as outside the plaintiff’s physical capacity limits.[67]
[66]PCB 117.
[67]PCB 119.
68Dr Slesenger provided a further report dated 29 July 2022.[68] That report largely repeats his opinions expressed in the earlier report.
[68]PCB 122.
Ms Suzanne George
69The plaintiff also relied on a report from Ms Suzanne George, occupational therapist, by way of a vocational assessment report prepared by her on 13 June 2022.[69] I have considered the contents of that report, but I do not consider that it adds much to the resolution of this proceeding. Aspects of the report may be outside Ms George’s area of expertise, but to the extent that she has described various vocations, rates of pay and the like, I have broadly considered that evidence.
[69] PCB 134.
The defendant’s medico-legal evidence
70This perhaps brings me “full circle” back to the medical evidence and jobs identified by the defendant.
71Of course, the defendant does not bear the overall onus, in the sense that it is the plaintiff who must establish a “serious injury”. Nevertheless, where the defendant asserts that the plaintiff is fit for work, it has an evidentiary onus, and it is necessary to consider the evidence it relied on, namely the relevant medical reports from Mr Dooley and Dr Wyatt in the context of the evidence contained in the Nabenet report.
Mr Michael Dooley
72As discussed, Michael Dooley is an orthopaedic surgeon who examined the plaintiff and provided a report dated 29 November 2021.[70] He said there was no doubt that the plaintiff had sustained a significant injury to his proximal left tibia.[71] He said more significant degenerative change may develop because of the injury. He said from an orthopaedic point of view the plaintiff would be advised to undertake low impact exercise with water exercise, exercise bike riding, etc, to maintain a good range of motion of the knee and good thigh and leg muscle strength. He believed the plaintiff would continue to note intermittent left knee pain and would continue to have difficulty walking long distances, kneeling, and squatting.[72]
[70]DCB 143.
[71]DACB 146.
[72]DACB 147.
73In respect to work, Mr Dooley said:
“Mr Fastuca is unfit to return to his preinjury work either now or in the future. From an orthopaedic point of view, he has a physical capacity to carry out some light physical work and clerical type work. Return to such work would need to be on a graduated basis. I believe that Mr Fastuca would have a physical capacity to work as an adult trainer of plumbers but would not be able to engage in every physical activity required to work as a plumber. I believe that he could work as a training and development officer. His ability to work as a sales representative would depend on the amount of lifting and manoeuvring involved. I believe that he would struggle to work as a project/site manager as he notes difficulty walking on uneven ground, squatting, manoeuvring etc.”[73]
[73]DACB 148.
74Mr Dooley was then asked to provide a supplementary report after considering the vocational assessment report of Nabenet dated 14 January 2022. Mr Dooley reported on 14 July 2022 as follows:
“The authors of this report identify that, in their view, Mr Fastuca has a capacity to work as a:
1. Plumbing Trades Sales Assistant.
2. Plumbing and Mechanical Services Teacher.
3. Weighbridge Operator.
4. Pathology Courier.
I have read through the duties required to carry out these occupations.
In answer to your specific questions:
1. In your view, are the jobs identified in the vocational assessment suitable for the worker? If so, why are they suitable?
From an orthopaedic point of view, I believe that Mr Fastuca has a physical capacity to carry out the duties required in these various occupations. Overall they constitute light and/or sedentary type work. In any of these occupations there will be occasions where Mr Fastuca might note his underlying condition to have heighted affect or to have difficulty adopting various postures. I think that this would apply to almost any occupation one could think of. I believe, however, that he has a physical capacity to work functionally and capable in these occupations.
2. How many hours per week could he perform the jobs identified in the vocational assessment?
I believe that Mr Fastuca’s return to suitable work would need to be on a graduated basis. In time, one could then better estimate the number of hours that Mr Fastuca would be able to ultimately work. I would estimate that he has a physical capacity to graduate towards full-time work, but I could not say with certainty that ultimately this will be the case.”[74]
[74]DACB 149-150.
75I note that Mr Dooley excluded a return to plumbing work. In Mr Dooley’s words, he considered the plaintiff to have the physical capacity to carry out some light physical work and clerical type work. Mr Dooley advocated a return to work on a graduated basis, and that ultimately the best estimate of the number of hours would be after the plaintiff was able to achieve work. As he noted, the plaintiff had the physical capacity to graduate towards full-time work, but he could not say with certainty that that would ultimately be the case.[75]
[75]DACB 150.
Dr Mary Wyatt
76Dr Mary Wyatt is an occupational physician who examined the plaintiff and provided reports. In her report of 19 December 2021[76] she discussed at length the plaintiff’s left knee injury. She noted the left knee was constantly sore and a walking tolerance of about 500 metres. She described crepitus on all movement, and that the knee can be swollen. The plaintiff described his knee as unstable, and that he was unable to kneel or squat. The plaintiff told her that he tried to do some chores at home, such as emptying the dishwasher, but it was too strenuous to vacuum the whole house.[77] She described the short to medium-term prognosis as for continued symptoms, but long-term the plaintiff was highly likely to require more surgery because of post-traumatic osteoarthritis.[78]
[76]DACB 152.
[77]DACB 159.
[78]DACB 161.
77In respect to employment, she said emphatically that the plaintiff was permanently unfit to return to his normal job.[79] She then said:
[79]DACB 162.
“He is not fit for the type of work he has been trained for and requires retraining to re-enter the workforce. He is unfit for work which requires him to be on his feet for extended periods, such as more than 20 to 30 minutes at a stretch, which requires long periods of walking, repeated climbing of stairs, climbing of ladders or working at heights, and tasks that require kneeling or squatting. He is unfit for work at or about shoulder height with his left arm.
These limitations preclude him from returning to manual work and his job is a significantly manual role.
With respect to the duties outlined in the 130 Week Vocational Assessment Report from April 2020, the following options are suggested:
1. Adult trainer in plumbing.
2. Training and development officer.
3. Sales representative
4. Project site manager in plumbing
5. Customer service representative in plumbing and hardware
The job description included within the Vocational Assessment Report said that the adult trainer in plumbing is a light to medium job but occasionally there is heavy work but does not go on to outline exactly what the heavy work is. Presumably, this is about demonstration activities. Occasional heavy work would not be suitable for Mr Fastuca and therefore this role is not recommended.
The training and development officer role is largely desk based and involves developing manuals, designing courses and teaching studies, as well as evaluating students. The role is not physically demanding. Driving may be required on an occasional basis. This seems a suitable role for Mr Fastuca. He has completed a Certificate IV in Training and Assessment. He may require assistance to obtain such a job, without a background in this area. His experience as a plumber would likely assist someone supervising and co-ordinating trade apprentices and that would likely help him in such a role.
The next role is as a sales representative in plumbing, which would require a fair degree of travel, driving and meeting with clients. Generally, this job seems suitable though I am not sure if Mr Fastuca would cope with a role where he needs to be out and about regularly, going to unpredictable areas. Working a more controlled environment, noting his tendency to trip regularly, would be preferable than being on the road as a sales representative.
The next role is as a project site manager in plumbing. That would generally require walking over uneven ground and the ability to inspect when reviewing construction progress. A job where he is office based and not required to attend construction sites would be suitable, however, a job where is onsite inspecting is not recommended because of the requirement to walk over uneven ground.
The last suggested role is as a customer service representative in plumbing hardware. That requires standing at sales counters and walking about the workplace. With the requirement for standing, this role is not considered suitable.”[80]
[80]DACB 162-163.
78Dr Wyatt provided a further report dated 18 July 2022.[81] She was asked to specifically comment upon the vocational assessment from Nabenet as well. It is convenient to set out her opinions in full, as follows:
[81]DACB 166.
“You have forwarded a Vocational Assessment Report from Nabanet dated 14 January 2022 and have asked for input regarding the potential job options identified.
· The first job is as a Plumbing Trade Sales Assistant
This is performing trade counter sales, as well as selling in the showroom. There is regular standing at the trade sales counter and frequent walking within the sales area to collect items. There is rare lifting of up to 15-20kg and rare use of stairs and ladders.
Because of the amount of standing and walking involved, this role is not recommended.
· The second role is a Plumbing and Mechanical Services—Teacher
Mr Fastuca said he had lost confidence in his ability to do this role, having trained for it through his Certificate IV in Training and Assessment. His understanding is that the job may involve working at heights and at times climbing ladders.
The job description notes that a casual contract consists of 20 hours a week and full-time teachers teach three days a week for 20 weeks over a semester of 40 weeks during the year.
I think there are reasonable prospects Mr Fastuca would be able to cope with such a role. My understanding is that there is a shortage of TAFE teachers at the moment and many TAFEs are going out of their way to engage TAFE teachers.
Mr Fastuca may best be spending half a day or a day at a TAFE, gaining an in depth understanding about how much standing and manual demand activities the job requires. It is noted that there is a storeman who assists students with their equipment and sets up workstations.
· The third role of Weighbridge Operator
This role is not physically taxing, allows alternation of the seated and standing positions, and is quite flexible. It is not demanding on the knees or shoulders. This is a suitable role for full-time hours of work.
· The fourth role is a Pathology Courier—Melbourne pathology company, various locations
Noting the demands of the job, I think this would be a suitable role for Mr Fastuca working up to 30 hours a week. It does require him to be doing some standing and walking, though would be typically sitting to drive in between the periods of standing and walking.”[82]
[82]DCB 166-167.
Dr Natalie Krapivensky
79Dr Natalie Krapivensky is a psychiatrist who examined the plaintiff at the request of the defendant and provided a report dated 20 February 2023.[83] She diagnosed a chronic adjustment disorder as a consequence of the physical injury. She said the plaintiff had no current psychiatric capacity to return to pre-injury duties because he had lost self-esteem, was not motivated, and any return to work at this time is going to be unsuccessful. However, she went on to say that he had the psychiatric capacity to return to suitable employment, including in the roles outlined by Dr Wyatt, but that he was quite unmotivated to do so.[84]
[83]DCB 168.
[84]DCB 173.
80Dr Krapivensky appears to have proceeded on the basis that the litigation process was affecting the plaintiff’s motivation to return to work, based on a second-hand comment in one of the reports from Dr Wyatt. That is not an opinion that I share. After suffering a significant left knee injury, the plaintiff attempted a return to work with the employer. Next, and at his own initiation, he has gone on to consider a return to work and to undertake further study and training. There is nothing to suggest that he is unmotivated, in my view, and that impacts the weight I attach to Dr Krapivensky’s opinions. But broadly, her evidence does not support a conclusion of a “severe” psychiatric impairment.
Capacity for work – the left knee
81There is no doubt that the plaintiff suffered a significant injury to the left knee requiring repeated surgical interventions.
82As mentioned, it is agreed that he cannot return to his pre-injury plumbing duties.
83The medical opinion, which I have set out in some detail, confirms that the plaintiff is now limited in his ability to sit, stand, and to walk more than about 500 metres. The medical material confirms that he has difficulty with bending, kneeling, squatting, or crouching.
84The broad thrust of the evidence of physical incapacity is that the plaintiff is now fit at best for light physical or sedentary type employment, in particular as suggested by Mr Blackmore, Mr Mclean and Mr Dooley. In fact, broadly, there is not a great deal of dispute in those medical opinions. The dispute is in the detail, namely what sort of modified work and how many hours can the plaintiff now undertake.
85The two issues that then fall for determination are a consideration of what employments might now be “suitable” and the number of hours that the plaintiff could work in such “suitable employment”.
How many hours? What type of work?
86In respect to the number of hours, the medical opinions vary. The treating GP opined that the plaintiff is now totally unfit for work, which broadly was also the opinion of Dr Slesenger.
87On the other hand, Mr Low suggested that the plaintiff is currently fit for 12−15 hours per week, and it may increase to 25−30 hours per week. That evidence is broadly consistent with Dr McLean’s opinion: namely, that the plaintiff has a possible capacity for light and sedentary work, but the precise hours could not presently be determined. Mr Dooley, in a similar way, recommended a return on graduated hours, and deferred any ultimate expression of the number of hours after such an attempt at returning to work. Dr Wyatt described the plaintiff as having reasonable prospects of working as a TAFE teacher at least for 20 hours (or more) per week. She otherwise endorsed full-time employment as a weighbridge operator and she endorsed pathology courier work at 30 hours per week.
88The medical opinions must be considered as a whole, but they should also be considered in the context of the plaintiff’s oral evidence. I was impressed by him as a witness. I accept his evidence about the physical aspect of teaching a trade, and in my view that is enough to exclude TAFE teaching as a realistic prospect for him. That then leaves light physical or sedentary type employment. I also accept his evidence as to the difficulty he has if he has to sit for prolonged periods with his knee bent or is required to stand or walk. Common sense suggests that would make it difficult for him to do a full-time office type job or full-time administrative duties in the setting of a weighbridge.
89I am conscious that, in a consideration of the plaintiff’s “after injury” earning capacity, I am conducting an assessment for the purposes of a gateway provision. As was said by Priest, Beach and Niall JJA in Yirga-Denbu v Victorian WorkCover Authority,[85] an examination of the whole of the evidence is required as to what might be the plaintiff’s capacity to engage in work which, in the end, is a matter of judgment – remembering again that one is conducting an analysis required by a gateway provision.[86]
[85][2018] VSCA 35.
[86]Ibid, paragraphs [88] and [89].
90In my view, a consideration of the whole of the evidence is that the plaintiff currently has a capacity for light, sedentary type employment of 12−15 hours per week. But I do not accept that he is likely to graduate beyond those hours, given his ongoing symptoms and physical restrictions.
91I accept the plaintiff’s evidence that physically he could not teach a trade (specifically plumbing) because of the physical activity involved. There is no suggestion that he is more broadly fit for work as a teacher, and, as already alluded to, he did not strike me as someone with the aptitude for that vocation. I also accept his evidence of the difficulty he would have with his leg in a full-time sedentary job and that the nature of his injury would make him unreliable for full time employment.
92I conclude that the plaintiff’s current “after injury” capacity for work is for 15 hours per week. I further conclude that will be the limit of hours he would be able to work in light physical or sedentary type employment.
Pecuniary loss is made out
93The parties agreed – although the plaintiff also attempted to put a higher figure as an alternative – that based on the earnings with the employer, the plaintiff’s “before injury” earning capacity was approximately $83,000 gross per annum.[87] 60 per cent of that figure is $49,800.
[87] T 66, L 31.
94Based on an “after injury” capacity of 15 hours per week, then on the evidence before me, the plaintiff satisfies the statutory formula. But, for completeness, I shall briefly explain why.
95First, I have evidence of the rates of pay as a plumbing trade sales assistant, weighbridge operator, and pathology courier in the Nabenet report. If he was to perform any of those jobs for 15 hours per week, then he has a greater than 40 per cent loss of earning capacity.
96Second, I conclude that a job such as a pathology courier is likely to be the most suitable job for him, consistent with the submission that his senior counsel made at the conclusion of the evidence that “some sort of courier type job is probably the one where he might manage some part-time hours”.[88]
[88] T 80, L 28-29.
97Third, the evidence is that, as at 27 May 2021, an actual job identified in the Nabenet report as a pathology courier in Melbourne paid $1,656.40 gross per week for full time employment, which, for a 38 hour week, equated to a rate of $43.59 per hour. If that rate was indexed by 3 per cent for each of 2022 and 2023 (using the same 3 per cent rate that the parties used to index the plaintiff’s “before injury” earnings, to allow for the relevant three-year window after the incident) then that equates to a current hourly rate of $46.24.
98Next, 15 hours per week by $46.24 equals $693.60 gross per week, which for 52 weeks is a gross annual figure of $36,067.20 and is below the 60 per cent threshold in s325(2)(e) and (f) of the Act.
99Therefore, for the reasons given, I conclude that the plaintiff’s “after injury” earning capacity is $36,067.20, which is below the 60 per cent threshold.
100Leave is granted to the plaintiff to commence a proceeding for pain and suffering and pecuniary loss damages for the physical injury to his left knee.
The psychiatric claim
101I shall briefly deal with the claim based on the psychiatric injury.
102The relevant medical evidence, as I have earlier set out, supports a conclusion that the plaintiff has suffered an adjustment disorder with anxiety and depressed mood. It has some impact on him and has required regular psychological counselling.
103But, in short, the evidence does not, in my opinion, elevate the psychiatric condition to the level of “severe”. The relevant evidence supports a conclusion that from a psychiatric perspective he could still undertake work. He is able to care for himself and his children. He was able to complete courses of study. The evidence is that it may mildly impact his day-to-day activities, but it is not having a severe impact on him.
104The claim based on the psychiatric injury does not establish a “serious injury” for either pain and suffering or pecuniary loss.
105I shall hear from the parties as to consequential orders.
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