Fernando v Qantas Airways Limited (formally Q Catering Limited)
[2023] VCC 1019
•22 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-22-02402
| GALLAGE (ANTON) SHIVANTHA FERNANDO | Plaintiff |
| v | |
| QANTAS AIRWAYS LIMITED (formally Q CATERING LIMITED) | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 May 2023 | |
DATE OF JUDGMENT: | 22 June 2023 | |
CASE MAY BE CITED AS: | Fernando v Qantas Airways Limited (formally Q Catering Limited) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1019 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the lower back – impairment of the left shoulder- credit – pain and suffering- loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Georgopoulos v Silaforts Painting Pty Ltd & Ors (2012) 37 VR 232; Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Ms P Prossor | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr I D McDonald KC with Ms K M Manning | Hall & Wilcox |
HER HONOUR:
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an incident at work with the defendant on 1 March 2016 (“the said date”).
2The plaintiff initially sought leave to bring proceedings for damages under both heads. The body functions pursuant to sub paragraph (a) said to be impaired were the left upper limb/shoulder and lower back.
3Ultimately, the only issue for determination was the loss of earning capacity application in relation the lumbar spine. At the end of his address, counsel for the defendant, having focussed solely on why leave should be refused in relation to the left upper limb impairment, stated:
“We would say in terms of the range, whilst a fusion operation and the consequences might well meet that test, we would say that doesn't necessarily follow with the left shoulder condition for the reasons that I've already outlined.”[1]
[1]Transcript (“T”) 94-95
4While seriousness regarding pain and suffering was not formally conceded, counsel for the defendant confirmed there was no opposition to leave being granted under that head for the spinal impairment.[2]
[2]T95
5This position was confirmed when I indicated to counsel for the plaintiff that given counsel for the defendant’s comments, he need not address me on the left shoulder because, “the only thing … outstanding is economic loss in relation to the lumbar spine”.[3] Counsel for the defendant did not take issue with my comment.
[3]T99
6There being no opposition to the grant of leave to bring proceedings for damages for pain and suffering in relation to the lumbar impairment, there is no requirement to consider the other application relating to a left shoulder impairment.[4]
[4]Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179
7In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
8Subsections (2)(e) and 2(f) recite the formula by which loss of earning capacity is to be measured.
9Section 2(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
10I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[5] Peak Engineering & Anor v McKenzie[6] and Ryan v The Grange at Wodonga Pty Ltd.[7]
[5] (2005) 14 VR 622
[6] [2014] VSCA 67
[7][2015] VSCA 17
11The plaintiff swore two affidavits and was cross-examined. He also relied on an affidavit sworn by his wife, Franca, on 4 January 2023 and his friend, Susil Alahppermage Karunanayake (“AJ”), sworn on 4 January 2023. Also in evidence were medical reports and other material. I have read all the tendered material.
The Plaintiff’s evidence
12Pain and suffering not being in issue in relation to the lumbar impairment, the following summary of the plaintiff’s evidence relates to the loss of earning capacity application. Cross examination focussed on the impairment and later, work capacity in general terms.
13The plaintiff is presently aged forty-six, having been born in October 1976 in Sri Lanka. He is married with two teenage children. He completed Year 12 in Sri Lanka and then worked part time in his father’s grocery business.
14In about 1996, he migrated to Australia. He, then, did not know much English and did an English language course. He started a business management course but did not complete it. He had difficulty due to his limited English language skills.
15From about 1996 to 1998, he worked in various casual jobs, including as a kitchenhand, parking attendant and a cleaner.
16In about 1998, he started work as an airline services officer with the defendant. He was casual for about a year-and-a-half and then became full-time permanent. After returning to Sri Lanka for two years for family reasons, he resumed working for the defendant in the same role, two years as a casual and then as a full-time permanent employee.
17In about 2004, he also started work as a casual cleaner with the Maharishi School in Reservoir, working from nine to twenty hours a week in the afternoon.
18He completed a food handling course in about 1998. He holds a heavy vehicle licence, which expires in August 2027. He is right handed.
19He had some lower backache in May 2004 and an injury to his right shoulder in March 2011, following which he was cleared for pre-injury duties and had a full recovery the following month. He suffers from obstructive sleep apnoea, hypertension, Type 2 diabetes, gastric reflux and hypercholesterolemia.
The incident and subsequent treatment
20The plaintiff suffered injury on the said date, when a used catering cart he was pushing from the aircraft into the body of his truck fell forward and he fell over the cart and felt immediate pain in his left shoulder (“the incident”).
21Following the incident, he attended John Fawkner Hospital, where he was given analgesia, and discharged home with painkillers and a referral for an ultrasound. The day after, he continued to suffer from left shoulder pain and could not lift his left arm, and also noticed some pain in his lower back, left hip and leg.
22He attended company preferred doctors at Sonic HealthPlus at the airport and was advised to take painkillers.
23The plaintiff subsequently had physiotherapy for his left shoulder and saw Mr Owen, orthopaedic surgeon, in March 2016, who organised a cortisone injection and later, referred the plaintiff to pain specialist, Dr Lim. Because of ongoing left shoulder problems, the plaintiff ultimately underwent a left shoulder decompression and rotator cuff repair, performed by Mr Pang, in October 2018 (“the shoulder surgery”).
24Left shoulder problems continued and in April 2019, Mr Pang recommended physiotherapy and hydrotherapy. The plaintiff also developed problems with his right shoulder because of overuse. Surgery was suggested for that condition but funding was denied.
25The plaintiff continued to experience pain in his lower leg and left leg. He continued physiotherapy and took medication. His general practitioner (“GP”), Dr Nettleton, sent him for a lumbar MRI scan in June 2016 which he was told showed a significant injury to the L5-S1 disc.
26Dr Nettleton referred the plaintiff to Mr Gerald Quan, orthopaedic surgeon, in relation to lower back and left leg pain. When seen in July 2016, Mr Quan recommended further physiotherapy and ordered a CT-guided lumbar injection. In late July 2016, Dr Lim referred the plaintiff to the North Eastern Rehabilitation Centre, where he underwent a pain rehabilitation program for two weeks.
27CT-guided lumbar spinal injections in November 2016 and January 2017 provided little relief. Left shoulder pain persisted, as did lower back and left leg pain, and the plaintiff also developed radiating right leg pain.
28Following a further lumbar MRI scan in March 2017, Mr Quan recommended conservative treatment continue, with low-back surgery being an option if symptoms persisted.
29In May 2017, WorkCover terminated the plaintiff’s entitlement to benefits but they were subsequently reinstated after the plaintiff went to the Medical Panel.
30In early October 2017, Mr Quan advised the plaintiff to proceed with L5-S1 total laminectomy discectomy and instrumented fusion surgery, which the plaintiff underwent the following January (“the back surgery”). Following the back surgery, his leg pain improved, but did not completely resolve and his lower back pain continued and he had further physiotherapy from March 2018.
31Lower back pain radiating to the legs and buttocks continued in January 2019. The plaintiff consulted neurologist, Dr Grant Scott, who performed nerve conduction studies, which were normal, and referred the plaintiff for further investigations.
32Because of persistent lower back and leg pain, in September 2019, the plaintiff saw neurosurgeon, Professor Gavin Davis, who recommended a pain management program.
33Dr Scott prescribed Tegretol for nerve pain, which the plaintiff took for a couple of months without much success. He resumed taking Lyrica and Targin with some benefit. Dr Scott recommended a referral to the Bundoora Extended Care Centre for a comprehensive program of physiotherapy and hydrotherapy.
34In November 2019, the plaintiff saw psychiatrist, Dr Surya Tipirneni, who advised continuing Lexapro, Lyrica, Panadeine Forte and Targin.
35In July 2021, the plaintiff saw Mr Quan in relation to lower back pain and weakness, and numbness in his leg. He recommended a further neurological assessment with Dr Scott, who organised an MRI scan of the neck and back in November 2021.
36Dr Scott arranged further investigations, including nerve conduction studies, in March 2022 and an MRI scan of the left shoulder, cervical spine and lumbar spine later that year. Having reviewed the scans, Dr Scott recommended continuing physiotherapy.
Current situation
37The plaintiff continues to suffer constant pain in his left shoulder and has difficulty using his arm for a range of activities, particularly overhead.
38He continues to suffer from severe pain in his lower back, which radiates up to his neck and causes headaches, and down his buttocks into his legs, with the left leg being worse that the right. He also experiences intermittent symptoms of numbness and pins and needles in his left leg.
39His back pain is 8-9/10 and his shoulder pain, 7/10. His back, when standing, feels more pain, and also when sitting.[8]
[8]T68
40As a result of his severe lower back pain, he continues to have difficulty with activities involving significant lifting, prolonged postures, repetitive bending forward, stooping, side bending and twisting.
41His lower back, left leg and left shoulder pain impact on his ability to carry out activities of daily living. He continues to suffer disturbed sleep. His driving ability is limited, as is his ability to engage in a range of social and domestic activities.
42Dr Nettleton provides total incapacity certificates and prescriptions. The plaintiff sees Mr Clive Smee, psychologist, for psychological treatment monthly and Dr Tipirneni for psychiatric treatment monthly.
43He takes Lyrica, Targin and Lexapro daily, and Panadeine Forte when the pain flares up, which is usually once a week.[9] He has an upset stomach from taking medication and takes other medications for high blood pressure, high cholesterol and diabetes.
[9]T65
Work post-incident
44He returned to work with the defendant four days after the incident and continued to work on light duties, gradually increasing his hours on modified duties from four hours a day to eight hours a day, three days a week. He increased hours “slowly, slowly”.[10]
[10]T9
45His duties included sorting out cutlery, sorting out drinks, light cleaning of high-lift trucks, such as removing coffee cups and putting letters in envelopes to go to the post office. He did not do any computer work. The duties were repetitive and required sitting at times, which exacerbated his pain. They were offered to him on a temporary basis. There was no permanent role of this nature.
46In May 2017, light duties were withdrawn, as he was told there were no more to do, and his employment was terminated. He was struggling when he was doing light duties, but he certainly would have continued to work had the duties not been withdrawn. He did not do much on light duties. They only gave him light jobs, like sorting out the envelopes, and the coffee, tea and sugar. Most of the time he was sitting in the office anyway, so he did not do any work, or they did not have any for him to do anyway.[11]
[11] T10
47He stopped his cleaning work at Maharishi School after the incident. He had never had a set number of hours of work there. Sometimes he worked seven, sometimes twenty hours. His hours may have been reduced because they took on anther cleaner. He only went to work there when he was not working afternoon shifts with the defendant.[12] His income with Maharishi School had declined in the years leading up to the incident, because he was only working afternoons.[13]
[12]T70
[13]T61
48As of February 2022,[14] he did not believe he had a realistic work capacity. He would have difficulty performing any manual type employment because of the ongoing severity of pain and restricted movement in his left shoulder and lower back. His literacy skills and computer skills were limited, and he would not be able to work in an office. If had he not been injured, he would have continued working until sixty-seven, and beyond, for as long as possible, and had no retirement plans.
[14] February 2022 affidavit
49His friend had a business in Thomastown nearby, importing cars and making them Australian compliant, and selling them locally (“the business”). The plaintiff attended the business about every second day for a couple of hours to get out of the house and keep himself sane. He was not working there.
50Sometimes, he accompanied his friend when he ran errands for the business, such as depositing money in the bank. Sometimes, his friend would leave cars at his house if he had no room for them at the business. He bought a car from his friend about two years earlier. He also remembered having to go to the wreckers in Thomastown to purchase some parts for his own car. His friend performed repairs and maintenance on his car. The plaintiff often went to the business before he had physiotherapy, which was nearby.[15]
[15]February 2022 affidavit; T24 - confirmed accuracy of these paragraphs
51There was surveillance of the plaintiff undertaken while he was at the business on numerous occasions from November 2019 to 31 January 2023. Most of the film shown was taken on 17 September 2021. There was also film taken on 17 and 18 January 2020 and 28 April 2022. Most of the time, the plaintiff was seen standing around talking to people. He was not shown doing anything physically strenuous in the film that was shown. He did odd jobs here and there and was shown driving at times.
52On 17 September 2021, he was shown at the business wearing a hi-vis jacket with the words “Qantas Link”. He always wore the vest which he was given when at working with the defendant. He was not wearing it because he was working at the business.[16]
[16]T31
53That day, he went to see AJ at the workshop as he used to do before the incident. He is not an employee of the business.[17] He disagreed he was continually at the business until 4 o’clock in the afternoon, “maybe” he came back.[18]
[17]T33
[18]T34
54He was moving, going back and coming back, he was not standing in the one place, that was one of the restrictions he had.[19] He tries walking, and can walk, but cannot walk for long because of his pain, and “then it starts to aggravate”. He goes to the business because he has a lot of depression and wants to get out of the house and talk to his friend.[20]
[19]T36
[20]T37
55He had not asked AJ for a job doing parts deliveries and pickups because he would not be able to do it because you needed to have computer knowledge and also because of his back and shoulder pain. He can drive around short distances, not far.[21] When he drives, he has pain, but he still drives, and after that suffers because he does not have anyone else to drive him around.[22]
[21]T42
[22]T44
56He did not sign anything when the courier came to the business. [23]
[23]T45 - 28 April 2022
57It was wrong that he was working in the business. He never worked there in his life, and he cannot even work for AJ because of his back injury and “left injury”, and also his right shoulder pain. AJ is a mechanic. The plaintiff cannot even change a tyre.[24]
[24]T57
58In the films, he never stood around two hours in the one place, one hour in one place, he wanted to move around.[25] He saw himself limping in the first film because of his back and left leg.[26]
[25]T59
[26]T72
Work in the future
59He recently deposed[27] he did not believe he would be capable of returning to pre-injury duties, due to his ongoing back and left shoulder pain, and associated restrictions.
[27] January 2023 affidavit
60He believed he would struggle with full-time work for any of the jobs suggested by the vocational assessor in 2020 because of ongoing pain and limitations on prolonged postures, sitting, standing, walking, bending and lifting. At best, he thought he would be capable of working one to two hours a day in those jobs (delivery driver, office cashier, primary products inspector, carpark attendant and crossing supervisor).
61He was unsure what other work he would be able to do as, for his whole life, he had been employed in physically demanding jobs and the pain in both areas, and the associated restrictions, would prevent him from doing that type of work.
62He had basic computer and typing skills and has not previously worked in a job that requires a lot of computer work. His English reading and writing skills were poor, so he would struggle with office-based work. He also believed he would struggle to attend work consistently and reliably due to fluctuating levels of pain.
63He does not own a computer, but uses his wife’s one, and can do basic skills. He is not sure how to do a spreadsheet and does not know much about computers.[28]
[28]T12, T69
64He has not worked a day since his employment was terminated because he cannot go back to work. It is very difficult for him to find the jobs because of his back and left leg pain and his left shoulder pain.[29]
[29]T10
65He explained he is always in pain, and was “in depression” when it was put he had done nothing and had six years to think about what he would do. He could not go and study somewhere because when he was sitting, he could not get comfortable. He was now in a lot of pain, and he had to take medication. How long was he going to go and do study for the computer?[30]
[30]T12
66In terms of retraining, he needed to have his mind clear to even do a course. He had “a lot of pressure in his mind, including depression, and not thinking” because of his pain and just all his WorkCover issues. He has to go and see doctors. He cannot do a bit of study or retraining because of his back pain and shoulder pain. He cannot do any studies at the moment.[31]
[31]T12
67Because of his back, and left leg pain on its own, and his right shoulder pain, it would be very difficult for him to do light duties.[32] When asked how he knew if he did not give it a go, the plaintiff said he has restrictions with pushing and pulling and he had never worked in an office. He had always done manual handling work all his life, involving heavy lifting. It is very difficult, with his restrictions, to find a job.[33]
[32]T22
[33]T23
68He could not work as a production clerk in a warehouse because of his English and writing language being very poor “and maybe lifting things”. He could not lift heavy things because of his back, and left leg and shoulder pain. He also did not know how to use the computer.[34]
[34]T65
69In response to the suggestion his writing skills were good, as shown in the handwritten incident report of March 2016, the report was completed by his work colleague, not him.[35]
[35]T67, T69
70Once he got better, he would do a computer course if he did not have any other choice. He could not see himself getting any better sometime soon. The way he is currently going, just every day he has more problems coming into his life.[36]
[36]T67
71For him to get an interest in looking for work, he would have to look after himself first and have to get better first.[37]
[37]T68
72If retraining required lengthy sitting, he could not sit for long because of his back pain. He did not write the statement himself because of his poor writing skills and got a colleague to do it.
73He would have problems with a job involving extended standing, because the longer he stands, the more he feels pain.[38]
[38]T70
74He would not be able to do a job involving lifting, pushing or pulling, because of his back and leg pain on its own, and his shoulder pain on its own.
75He could drive for only about half-an-hour before he started to get worse back pain and also left shoulder pain.[39]
[39]T72
76He is on medication for diabetes and does not have to take insulin. He also recently had a very significant cardiac problem and was treated by a cardiologist, and has had to have a stent, and is still having active treatment.[40]
[40]T63
77He denied that his heart problem would prevent him from going back to work; a stent is not going to affect anything. His mother also has a stent, and she is old and works.[41]
[41]T65
78His high blood pressure, cholesterol and Type 2 diabetes, and cardiac issues, do not prevent him from working.[42]
[42]T69
Lay evidence
79The plaintiff’s wife, Franca, swore an affidavit on 4 January 2023, confirming the plaintiff’s evidence about his pain and restrictions relating to his “injury”. She also corroborated his evidence about financial difficulties since the incident.
80The plaintiff’s friend, Susil Alahppermage Karunanayake, known as “AJ”, swore an affidavit on 4 January 2023.
81He operates and owns ADR Modifications Pty Ltd in Bostock Court, Thomastown, where he employs his brother and son. The company imports vehicles from Japan and makes them compliant with Australian design rules and then sells them to private customers.
82He also operates AJ’s Auto Care Centre Pty Ltd in Bostock Court, Thomastown, which is a registered automotive workshop, where motor vehicle servicing, repairs and roadworthy inspections are carried out.
83The plaintiff had been visiting the business for many years, sometimes he is there every day, at other times he is not there for a few days. He often walks around and looks at the imported cars and might open the doors and have a look inside.
84When he has been understaffed, he has asked the plaintiff to run an errand, such as going to the bank, or to VicRoads to register a car, or pick up a car from the wreckers. Sometimes, he leaves cars at the plaintiff’s house if he does not have room for them. He does not pay the plaintiff. Sometimes, the plaintiff just comes with him for company. He does not employ the plaintiff and he does not work for him in any capacity.
85He knows the plaintiff has injuries and is limited in what he can do, therefore he would not consider taking him on as an employee, because he would not be capable of doing the work. The plaintiff comes to the business to pass the time and get out of the house.
86He gave the plaintiff personal loans in the past because he was not working and was in financial difficulty. The plaintiff had repaid the loans. The plaintiff had purchased cars from him over the years and paid for them in instalments. He repaired and serviced the plaintiff’s cars over the years and paid him for that work.
Medical opinion as to capacity
Dr Nettleton, general practitioner
87In April 2023, Dr Nettleton opined, notwithstanding conservative treatment over the years, the plaintiff had not recovered and his lumbosacral injury, by itself (and the left shoulder alone) will prevent him from returning to any suitable employment of any kind in the foreseeable future.
88He based this statement on the fact the plaintiff’s educational level was such that his employment was performing work as a cabin attendant or driver for Qantas and that he was not able to undertake these duties. He did not believe the plaintiff’s education or understanding of computers for example, was such that it would enable him to return to any form of work in the face of the ongoing disabilities he suffers from in both areas. This related to his markedly reduced capacity to sit, stand or walk for any length of time without suffering increased and intolerable pain, and for his lack of capacity to function pushing, pulling and lifting, or moving his left shoulder to undertake any form or work.
89It is now seven years since the injury with, unfortunately, a number of years passing before surgery was undertaken for both conditions and, with the passage of time, the plaintiff’s lack of recovery. Despite ongoing conservative treatment over the years, the prognosis for both conditions was poor.
Dr Robyn Horsley, occupational physician
90Dr Horsley saw the plaintiff in May 2017. He was then working at his capacity, three days a week, eight hours a day.
91She then thought serious consideration needed to be given to vocational redirection. The plaintiff was unlikely to have been returned to his previous role as an airline services operator in the longer term, as the critical physical demands of such a job were permanently beyond his capacity. He would need to work within a range of restrictions she suggested. He required training and upgrading of skills, including an improvement in his written English skills and computer skills, and reasonable and realistic vocational counselling thereafter.
Dr David Vivian, musculoskeletal physician
92Following examination in September 2021, Dr Vivian thought, because of both his back and left shoulder, the plaintiff had chronic consistent pain with limitations of sitting and standing of 20 to 30 minutes, and he was unfit for all manual work. He had considerable fatigue, brain fog and other issues that compounded his total incapacity. This was likely to continue indefinitely.
93He did not think the plaintiff was fit for a job as a delivery driver, office cashier, primary products inspector, carpark attendant or crossing supervisor.
Dr James Rowe, specialist occupational physician
94Dr Rowe saw the plaintiff in October 2022.
95The plaintiff sustained a clinically confirmed injury, entirely consistent with the nature of the incident, and he had secondarily developed depression and anxiety.
96As a result of the lower back injury alone, the plaintiff was not fit for pre-injury duties on a full-time or part-time basis. In light of the restrictions he imposed – 5-kilogram carrying/lifting, restriction regarding pushing, pulling bending, overhead activities, reaching, stooping, crouching, prolonged sitting et cetera – the plaintiff would not be able to perform the inherent physical components of his pre-injury job with any degree of safety, consistency or reliability without considerable risk to others and himself.
97The plaintiff had a theoretical capacity only for alternative employment of a non-physical sedentary nature; however, his English skills are limited, he has no work experience in a sedentary or administrative environment in Australia and his skill set is limited to the job he is no longer able to physically undertake.
98The prognosis for future recovery was poor.
99To return the plaintiff to pre-injury unrestricted duties would impose an unacceptable risk. Return to any work would be a challenge, particularly after such a long absence from work. Work as a driver, or as a packer or kitchenhand, both of which require prolonged repetitive duties frequently under pressure, would not be suitable.
100Work as a cashier, but not fast paced, such as a supermarket, testing or parking officer may be suitable if they can be secured and successfully maintained.
101Any additional return to work would need to follow retraining, be part-time and conducted under the auspices of a suitably qualified vocational counsellor and liaison with the plaintiff’s general practitioner.
Professor Richard Bittar, consultant neurosurgeon
102Professor Bittar’s examination in November 2022 focussed on the plaintiff’s lumbar spine.
103He diagnosed aggravation of cervical spondylosis with intermittent neck pain, aggravation of lumbar spondylosis with lower back pain and left leg pain, persistent pain following spinal surgery and probably pseudoarthrosis (failure to fuse).
104Employment had been a significant contributing factor and, specifically, the incident injury remained a significant contributing factor to ongoing neck and lower back-related pain and disability, and requirement for treatment.
105In the future, the plaintiff was likely to continue to experience significant pain and disability.
106The plaintiff was incapacitated for his pre-injury duties as a result of his work-related lumbar spine condition.
107Taking into account the plaintiff’s age, education, training skills, working experience and limited English, as well as the nature and severity of his work-related lumbar spine condition, he did not have any realistic capacity for suitable employment. This total incapacity was permanent.
108The plaintiff could not return to full-time unrestricted work in his pre-injury job when considering his spinal injury alone. He did not have any real capacity for work on a consistent, reliable and permanent basis without the risk of re-injury when considering his age, education, skills and work experience, place of residence, medical information and any occupational or rehabilitation services provided, and effects of medication and incapacity, and restrictions arising from his lumbar spine injury alone. His prognosis was poor.
109His opinion did not change after having been provided with Dr Sabetghadam’s October 2022 report, Dr Allen’s September 2022 report, the 130 week vocational assessment report, the sub-vocational assessment report and also the December 2022 Recovre report.
110The plaintiff did not have the capacity for the jobs suggested in the Acumen and Recovre reports. The significant levels of pain and disability, including an inability to sit or stand for more than very short periods of time, would prevent him from being unable to undertake such work. Even if he were able to find such work in a very part-time capacity, he would not be able to work in any of those roles reliably and consistently, as unpredictable flare ups of pain would mean he would require a significant amount of sick leave.
Vocational evidence
Ms Suzanne George, occupational therapist
111Ms George prepared a report in December 2022.
112She considered there is no unrestricted recognised occupation for which the plaintiff is likely to qualify as suitable following his back and left shoulder injury separately, and this situation will continue for the foreseeable future.
113Her view did not change, having considered the December 2022 vocational assessment.
Defendant’s medical evidence
Dr Dominic Yong, occupational physician
114Dr Yong examined the plaintiff in March 2023.
115In the absence of any contradictory information, he thought the incident could reasonably lead to the onset of the lower back condition.
116The plaintiff did not have a current capacity to perform pre-injury duties. It is unlikely further improvement would occur with the lower back leading to cessation of restrictions, therefore he is unlikely to return back to working his normal pre-injury duties in the future.
117However, the plaintiff had a capacity to perform tasks within the various restrictions suggested, namely, avoid repeated bending and twisting of the back, avoid repeated firm pushing and pulling tasks, avoid lifting more than 5 kilograms repetitively, vary posture regularly between sitting, standing and walking and reduction in working hours.
118Addressing the jobs in the Recovre 2022 report, he thought the role of pasteuriser machine operator was unlikely to comply with the recommendations and thus would not be considered suitable to perform.
119The plaintiff would have the capacity to work as a quality production clerk on reduced working hours, gradually increasing over a three to four-month period, and then need re-assessment.
120The role of product tester and assembler was likely to comply with restrictions and this would be considered suitable on graduated hours.
121The roles of food services assistant/kitchenhand, office cleaner, parking inspector and traffic controller were unlikely to comply with the recommended restrictions and thus would not be suitable to perform.
122The role of courier in the March 2019 Acumen report, would exceed functional tolerances for driving and was unlikely to comply with the recommended restrictions, and thus would not be considered suitable to perform. The role of cashier would require individual assessment, as would the jobs of food trades assistant, primary products inspector and product assembler.
123The role of delivery driver (van or car - light items) in the December 2020 vocational report was unlikely to comply with the recommended restrictions and would not be considered suitable.
124The jobs of office cashier and primary products inspector would require individual assessment. The jobs of carpark attendant and crossing supervisor were likely to comply with restrictions and would be suitable on the graduated hours suggested.
Dr Reza Sabetghadam, occupational physician consultant
125Dr Sabetghadam saw the plaintiff in October 2022. He was asked to assess liability for the lumbar spine only, and assessed the plaintiff’s capacity for work for both injuries and the need for treatment to the lumbar spine only.
126Counsel for the defendant did not rely on Dr Sabetghadam’s opinion as it was based on the Official Disability Guidelines and the AMA Guides to the Evaluation of Disease and Injury Causation which do not apply in this case.
Vocational evidence – weekly wages in suitable employment
Acumen - March 2019
Courier $1,000
Cashier $824
Foods trades assistant $877
Primary products inspector $1,395
Product assembler $965
Recovre - December 2022
Packer $1,024 - $1,047
Product assembler $972 - $995
Machine operator $1,790 - $1,847 (suggested role $27 per hour)
Kitchen hand $946 - $983 (suggested role $23 per hour)
Commercial cleaner $1,271 - $1,275
Production clerk *$1,542 (all ages) (suggested role $25 per hour)
Recovre - January 2023
Delivery driver $1,144 - $1,172
Office cashier $1,063 - $1,159
Primary products inspector $1,720 - $1,900
Carpark attendant $1,132 - $1,158
Crossing supervisor $926 - $974.
Overview
127Having satisfied the narrative requirements, on the basis that pain and suffering was not contested, to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(38)(e)(ii).
128The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(a) “without injury” earnings; and
(b) “after injury” earnings.
129The former must be calculated by reference to the six-year period specified in s325(2)(f).
130“Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning, or was capable of earning from personal exertion, or would have earned or would have been capable of earning, from personal exertion had the injury not occurred.
131It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity. Onus on the plaintiff in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[43]
[43] Barwon Spinners (supra) at paragraph [10]
132There was agreement on the “without injury” earnings figure. The defendant accepted, for the purposes of this application, the figures postulated by the plaintiff are an appropriate comparator, namely $122,829 or $2,351 per week, 60 per cent of which is $1,411.[44]
[44]T77
Credit
133As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[45]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[45](supra) at paragraph [12]
134Counsel for the defendant submitted the plaintiff had downplayed the true extent of his activities and the doctors obviously had based their opinions to some extent on what they had been told in that regard.[46] Reliance was placed on the level of the plaintiff’s activities shown on film at his friend AJ’s business in Thomastown.[47]
[46]T83; Dordev v Cowan & Ors [2006] VSCA 254
[47]T80ff
135However, as I indicated during the hearing, in my view, what the plaintiff was shown doing on the film was not inconsistent with his evidence as to his pain and level of lumbar restriction.[48] Counsel for the defendant responded that the film was indicative of a course of conduct, in other words, the regularity of activity – being able to get there and do things – rather than a specific heavy activity.[49]
[48]T49
[49]T50
136My impression of the film was that it showed the plaintiff going to his friend’s business and doing various minor activities, and that was about it. The plaintiff admitted that he drives cars around, but he “doesn’t go and pick up big car parts and things”. While the plaintiff was shown bending at times, there was nothing on the film that was “earth shattering”.[50]
[50]T51
137Counsel for the defendant also suggested the plaintiff understated the level of his activity at AJ’s business when he was seen by doctors, like Dr Vivian and Dr Yong, to whom he gave a picture of being very disabled.[51]
[51]T57
138In my opinion, knowledge of these matters was not likely to have altered the views of these examiners to any significant extent.
139While the plaintiff was shown attending his friend’s business on a regular basis undertaking a range of small tasks, I accept his evidence that he spends time there for company, as he is bored at home. He is not paid for his attendance and he is able to control what he does when at the business. The level of activity shown on the surveillance film does not alter my view in terms of the plaintiff’s significant incapacity.
140In my view, the plaintiff was a truthful witness who did not overstate his level of lumbar pain and restriction.
141He had a good work ethic, returning to work after the incident, and continuing on very light duties until those duties were withdrawn. He freely acknowledged he would still be working if those very light duties had not been withdrawn.
142I accept that he continues to suffer severe lower back pain, with referred pain down his legs, particularly the left. He suffers from flareups of pain, the onset of which he cannot predict. Because of this condition, the plaintiff would not be a reliable employee able to attend work on a consistent basis. He would also face the prospect of re-injury as a number of examiners have opined.
143I also accept that if he had the capacity to work, he would be doing so, and it is not the situation he lacks motivation to return to work because of his income protection payments/superannuation payout of some magnitude. Because of his back and left shoulder pain, he could not find any suitable job, not because he received that money.[52] He denied that he had not looked for work because he was relatively secure since he stopped work with the defendant. He nearly lost his house, having previously earnt nearly $100,000 a year.[53]
[52]T63
[53]T60
144Back surgery has resulted in limited improvement. The plaintiff continues to experience significant restrictions in relation to lifting, bending and stooping, and issues with prolonged posture. He requires ongoing painkilling medication for his lower back.
145While the plaintiff would have kept working if his employment had not been terminated, I accept he was working at his capacity of 24 hours a week in an extremely light job – sitting around sorting out bits of paper and not doing much at all, struggling even with those duties.
146In my view, based on his lower back pain alone,[54] the plaintiff does not have the capacity to earn in excess of the threshold of $1,411 per week.
[54] Peak Engineering (supra) at paragraph [10]
147As counsel for the plaintiff submitted, the evidence that the plaintiff does not have a capacity for suitable employment is overwhelming. In that regard, the plaintiff was supported by his treating general practitioner, Dr John Nettleton; Dr James Rowe, occupational physician; Professor Richard Bittar, and, of course, the occupational therapist, Suzanne George.
148Dr Yong, the occupational physician recently engaged on the defendant’s behalf, thought that there were only three jobs for which the plaintiff had capacity and in only one of them, production clerk – which required further retraining – if the plaintiff worked full-time, his earnings would exceed the agreed “without injury” earnings figure.[55]
[55] Recovre December 2022 – all ages $1,542
149Counsel for the plaintiff submitted the suggestion that the plaintiff is going to be able to be trained to be a production clerk in a factory was “fanciful”. Not only was the training beyond him, but the proposed job in Thomastown required him to be seated and use a computer for at least 50 per cent of the time, with the rest of the time in the factory.[56]
[56]T96
150Working full time – 38 hours per week – in that role at Thomastown earning $25 per hour, the plaintiff would only earn $950 per week. On the sliding scale of wages for a production clerk (Skill level 4) for all ages, the weekly wage was $1,542.
151However, Dr Yong thought the plaintiff would be fit to commence a graduated return to work program in relation to that job and, after various increases in hours, assessment could be made of whether he had a full-time capacity or not. As counsel for the plaintiff submitted, this was not a definite view; Dr Yong was being “hopeful”.[57]
[57]T97
152I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
153In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer him in terms of his capacity for employment, the plaintiff has satisfied the requirements of s325(2)(g).
154As the plaintiff’s severe back pain has continued for over seven years, despite surgery, I am satisfied his lumbar impairment is permanent.
155As counsel for the plaintiff submitted, there was no suggestion that the plaintiff was going to get any better, in fact he had got worse. Dr Yong himself accepted there was a discal injury with ongoing radiculopathy.[58]
[58]T97
156Taking into account all the evidence, I am satisfied that the plaintiff has suffered the requisite loss of 40 per cent on a permanent basis. Accordingly, I grant leave to bring proceedings for damages for loss of earning capacity.
157While pain and suffering was not formerly conceded, as the plaintiff has satisfied the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages; that is, both for pain and suffering and loss of earning capacity.[59]
[59]See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [147] and Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
158Leave is also granted to bring proceedings for damages for pain and suffering.
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