Firth v Victorian WorkCover Authority
[2016] VCC 802
•16 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-03340
| SHANE MICHAEL FIRTH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2016 | |
DATE OF JUDGMENT: | 16 June 2016 | |
CASE MAY BE CITED AS: | Firth v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 802 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lower right limb – economic loss damages, pain and suffering conceded
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted to the plaintiff to commence a proceeding claiming damages for the pecuniary loss consequences of an injury sustained to his right leg in the course of his employment on 7 September 2011.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr J Goldberg | Maurice Blackburn |
| For the Defendant | Mr D Churilov | Minter Ellison |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for the pecuniary loss consequences of an injury sustained to his right leg in the course of his employment on 7 September 2011. The impairment of body function relied upon in the application is that of the lower right limb.
2 In the proceeding, the plaintiff relies upon two affidavits sworn by him on 8 April 2015 and 3 June 2016 respectively. In addition, the plaintiff attended the application to be cross-examined. Otherwise the parties rely upon medical and like reports tendered by them.
3 No issue is taken by the defendant as to the fact that the plaintiff suffered a compensable injury to his right leg, the consequences of which are appropriately described as meeting the definition of “serious” insofar as they impact upon the plaintiff’s pain and suffering. For that reason, much of the content of the plaintiff’s affidavits which deal with the pain and suffering consequences of his injury become irrelevant to my task in this instance, which is to determine whether or not the impairment to the function of the plaintiff’s right leg in this instance gives rise to a loss of earning capacity which meets the statutory threshold.
4 I am satisfied in this instance that the plaintiff has established his entitlement to the leave sought in this application for the reasons which I will set out below. In providing those reasons, given that the plaintiff’s affidavits and his viva voce evidence are matters of record, I do not intend to refer to that material specifically other than where necessary to give context to my findings.
5 In the application, the parties are agreed that the relevant “without injury” earnings which I should employ in undertaking the statutory analysis required of me under the Accident Compensation Act 1985 (“the Act”) should be fixed at the sum of $70,031.00 and that the statutory formula should be applied to 60 per cent of that figure, namely $42,018.60 gross per annum, or $808.05 gross per week.
6 It is not in issue between the parties that in arriving at my determination as to whether the plaintiff retains a capacity to generate income in excess of the statutory threshold in this instance, namely $808.05, my analysis should be confined to the following five occupations identified by the various experts who have opined in this instance, namely:
(i) Radio despatcher;
(ii) Weighbridge operator;
(iii) Production clerk/logistics clerk;
(iv) Sales representative (building and plumbing supplies);
(v) Phlebotomist.
7 In assessing the plaintiff’s capacity to be employed in each of these occupations, I do so, taking into account both the plaintiff’s physical capacity to undertake the activities involved in each of the occupations and the likelihood that the plaintiff possesses, or will develop, the combined intellectual and processing skills required in each of the occupations.
8 I undertake the process above in the context of my satisfaction in this instance, about which there is no real issue that the plaintiff presents as an honest and reliable historian, both as to the level of his ongoing symptoms, his work history and his current capacity for activity.
9 Further, the strong impression I formed of the plaintiff as he gave his evidence was that he was a truthful but relatively simple, uneducated and unworldly man. The plaintiff’s presentation was, in my view, consistent with that which would be expected of a person whose formal education culminated in the completion of Year 8 (as did the plaintiff), and whose potential for rehabilitation into employment which required the application of sophisticated processing, mathematical or educational skills was unlikely.
10 Whilst there is no issue that in the course of his working life the plaintiff had held the position as a team leader, I accept the plaintiff’s evidence, which was not challenged, that this position did not involve him exercising sophisticated leadership skills but was limited to:
“Supervising was telling like say machine operators what colour they had to roll next, telling the yard driver what trailer or truck to bring in next. Very simple basic things like that, and the guys out in the yard, same thing, just what trucks they were to do, what loads they were to do.”[1]
[1]Transcript 18
11 I am further satisfied, having regard to the period which has now expired since the plaintiff suffered his injury, that the plaintiff’s condition is largely stabilised.
12 Whilst the plaintiff underwent surgery in January and February of this year to improve the appearance of the disfigurement associated with his injury (with the result that the plaintiff was largely incapacitated for a period of time following that surgery), I am satisfied that the plaintiff’s most recent affidavit evidence and his viva voce evidence describes the now stabilised consequences to the plaintiff of his injury.
Analysis as to Plaintiff’s capacity for work
13 It is clear that in the course of his evidence the plaintiff described returning to part-time employment with the employer where he was largely involved in sorting paperwork and some factory work where he slowly increased his capacity for work. There is no issue however that the high point of that capacity involved working for a maximum of some 25 hours a week in activities selected for him by his employer which involved basic office work and light work on the employer’s factory floor which eventually proved to be beyond the plaintiff’s physical capacity.
14 Further, various statements have been made from medical practitioners as to the fact that the plaintiff retains a theoretical capacity for employment. The relevant medical opinion as to the plaintiff’s current capacity for work-related activity is set out in the following medical evidence.
15 Dr Sasidharan Somasunderam, the plaintiff’s treating general practitioner, in his 2014 report, commented that the plaintiff was undertaking a phlebotomy course and opined that the plaintiff was suited to office-based duties.
16 Mr Russell Miller, orthopaedic surgeon, in a report dated 26 April 2016, commented:
“Mr Firth failed his attempt to return to pre-injury duties and pre-injury hours. He will have difficulty with work that involves prolonged standing, walking, twisting, turning, kneeing and squatting. In my opinion, he would not be safe to climb. He could, therefore not return to either his pre-injury occupations on any significant full time or part time basis.
Although the client does appear to be well motivated to return to work, given my understanding of his age, education and work experience, a return to work will be difficult to achieve in this case due to the ongoing effects of his right leg injury.”[2]
[2]Plaintiff’s Court Book (“PCB”) 42
17 Dr Joseph Slesenger, specialist occupational physician, in a report dated 16 March 2016, opined:
· that the plaintiff presented with clinical evidence of an infection developing in his right lower leg and on that basis he expressed caution as to the plaintiff’s requirement for future medical treatment
· that the plaintiff had no capacity to return to his pre-accident work
· that the occupations of sales representative, logistics clerk, radio despatcher and salesperson did not represent suitable employment for the plaintiff.
18 In his report dated 15 April 2016, Dr Slesenger considered the activity of a weighbridge operator which involved standing for long periods and climbing in and out of vehicles, and opined that this was an occupation that did not represent suitable employment for the plaintiff.
19 Associate Professor Felix Behan, plastic and reconstructive surgeon, in reports dated 21 March 2016 and 29 April 2016, opined that the plaintiff presented with
“… intermittent to constant treatment may be needed for the peripheral oedema and infections which present periodically”[3]
[3]PCB 71
and further:
“… The need for ongoing management has been discussed throughout but the use of prophylaxis, ie, weight reduction and pressure stockings may not be the total answer hence he will need constant surveillance by the specialist management team … ”[4]
[4]PCB 73
and commented further:
“Any suitable employment should not be of a physical nature as he is restricted by his ongoing morbidity even when doing supervisory work.”[5]
[5]PCB 73
20 Professor Vernon Marshall, surgeon, in a report dated 10 March 2016, opined:
“He has been left with significant persisting lymphoedema of the right leg and recurring ulceration and cellulitis and is on long term antibiotics and other medications.
…
… He is unfit for pre-injury and other duties and I believe this is likely to be permanent. He requires continuing treatment with compression stockings and skin care. … .”[6]
[6]PCB 124-125
21 Relevantly, Professor Marshall opined that the plaintiff had no capacity to work as a weighbridge operator, which incapacity was permanent.
22 Dr Michael Baynes, occupational physician, in a report dated 9 April 2014, commented:
“The worker is fit for alternative duties where there is no heavy lifting or carrying of greater than 10kg. The worker should be able to alter his posture, rotating between sitting, standing and walking. The worker should not be involved in repetitive use of stairs or where there is a need to squat. I believe he has a capacity for part-time hours initially of five hours/three days a week with progressive increase to full-time hours. Mr Firth would have a greater capacity for hours if he was able to rotate between sitting, standing and walking. Mr Firth also needs environmental protection and should not work with environments of extreme heat or cold.
…
Work that involves a mixture of clerical and desk work as well as work on his feet would be appropriate.
…
He is fit to undertake retraining and job seeking.”[7]
[7]Defendant’s Court Book (“DCB”) 45-46
23 Dr Dominic Yong, occupational physician, in a report dated 27 April 2016, opined that the plaintiff was fit for work as a weighbridge operator on the basis that that work involved the directing of traffic onto a weighbridge and making data entry, commenting:
“Given the diagnoses, chronicity and period of time out of the workforce, a graduated return to work program would be indicated. This would initially involve working reduced hours such as 4-hour shifts for 4 days a week. The working hours can then increase on a graduated basis, with the aim to return to work the pre-injury hours.”[8]
[8]DCB 56
24 As to the two latter opinions, the qualifications expressed by the authors as to the prerequisites which need to be achieved to allow the plaintiff to achieve full-time employment significantly devalue the probative value of each of those opinions as to the issue.
25 Having regard to the expertise of:
· Mr Miller, an orthopaedic surgeon, who specialises in the management of traumatic injury of the shoulder, hip and lower leg;
· Associate Professor Behan, a plastic surgeon, and
· Professor Marshall, an Emeritus Professor of surgery
I am satisfied that these three medical practitioners are well placed to opine as to the medical issues which the plaintiff will face on a long-term basis, having regard to the condition with which he now presents in his lower limb, and I prefer the opinions of these experts as to the plaintiff’s reduced tolerance for employment-related activity to those expressed by the various occupational physicians such as Dr Bayles and Dr Young whose expertise does not involve the surgical management of conditions of the type with which the plaintiff presents.
26 There is a consistency in the opinion expressed by Associate Professor Behan and Professor Marshall that the plaintiff presents with a persisting condition of lymphoedema of the right leg which will be associated with recurring ulceration and cellulitis. This in turn is consistent with the plaintiff’s evidence that he is currently awaiting approval for further treatment in association with his condition and the plaintiff’s pattern of treatment over the years following his injury.
27 For the reasons set out above I am satisfied in these circumstances that the limitations placed upon the plaintiff’s level of employment activity by Professor Marshall and Mr Miller and Associate Professor Behan are persuasive on this issue. For that reason I prefer those opinions as to the plaintiff’s capacity for work-related activity to those expressed by Dr Michael Baynes and Dr Dominic Yong.
28 As to the five occupations proposed by the defendant as giving rise to suitable post-injury employment for the plaintiff, I am not satisfied that any of them represent suitable employment for the plaintiff for the following reasons:
Sales Representative
29 The descriptions of the activities required of a sales representative include the following:
“… Physical demand requirements are in excess of those for sedentary work. Light work usually requires walking or standing to a significant degree. … .”[9]
[9]DCB 101
30 I am satisfied on the basis of the opinion expressed by Mr Miller that this occupation would be beyond the plaintiff’s capacity and would not represent suitable employment for the plaintiff.
Weighbridge operator
31 The occupation of weighbridge operator is described as involving the directing of traffic onto the site and the operation of the weighbridge, together with the recording of vehicles that enter and leave the weighbridge site. One of the skills required in the job involves “mathematical aptitude”.[10]
[10]DCB 176
32 Professor Marshall has identified the activities involved in this occupation as being beyond the plaintiff’s physical capacity. Having regard to the plaintiff’s limited education, his work experience and tolerance for physical activity, I am satisfied that this does not represent suitable employment for the plaintiff.
Phlebotomist
33 As to the occupation of phlebotomist, I accept the plaintiff’s evidence that he found the course work involved in obtaining the relevant qualification beyond his capacity. For that reason I am satisfied that the plaintiff will not gain the academic skills he requires to be employed in that occupation and, accordingly, that the occupation does not represent suitable employment for him.
Logistics clerk
34 The occupation of logistics clerk is described as requiring the plaintiff to complete a Certificate IV in Logistics and involves administrative skills which include the receipt, the examination of orders and the compilation of data for production schedules; the checking of inventories and the preparation of delivery schedules; the investigation and identification of supply sources and preparation of purchase orders, and the counting of incoming stock and reconciling stock movements with requisitions.
35 Further, the assessor regarded this occupation as being suitable for the plaintiff provided “he has the flexibility to alternate between sitting and standing as required” and that prospective employers should be willing to provide the plaintiff with an ergonomic work station and to take rest breaks as needed for regular postural change to avoid exacerbating his symptoms.[11]
[11]DCB 104
36 In my opinion, the imposition of these above restrictions involves a process in which the suitability of this employment for the plaintiff would not only be dependent upon:
(i) the plaintiff’s ability to demonstrate the mental competence to carry out each of the activities identified, about which I have considerable doubt, but also
(ii) to find a sympathetic employer who is prepared to accommodate the provisos as to the plaintiff’s working conditions as described by the author of the iPower report to which I have referred above.
37 In my opinion, these restrictions are such as to render the work of logistics clerk in the real marketplace, employment which is not appropriately categorised as being suitable employment for the plaintiff having regard to the provisos which must be met before the plaintiff could be employed in this activity.
Radio despatcher
38 As to the operation of radio despatcher, identical provisos to those referred to above are imposed by the assessor[12] before this work might be considered as being suitable employment for the plaintiff.
[12]DCB 106
39 For that reason, and taking into account:
(i) the fact that the work process requires skills which involve the ability to respond appropriately to emergency situations and a general prerequisite that employees have attained a Year 10 level of education;
(ii) the medication the plaintiff which the plaintiff requires to manage his symptoms, which has caused a number of assessors and medical practitioners to comment upon the adequacy of his processing skills;
I am satisfied that this does not represent suitable employment for the plaintiff.
40 In arriving at the above findings, I give due weight to:
(i) the plaintiff’s lack of formal education;
(ii) the opinion expressed by Mr Hartley which accords with my findings above;
(iii) the evidence given by the plaintiff as to his history of employment and skills which satisfy me that whilst the plaintiff felt that he had good communication skills, nonetheless failed to satisfy me that the plaintiff had, or was likely to develop, either:
§ the full complement of the specific skills
§ the physical stamina or capacity
identified as being required to undertake each of the mooted employment activities.
41 For the reasons set out above I am satisfied that the plaintiff is entitled to the leave which he seeks in this application.
42 I will hear the parties as to the precise order sought in this instance and upon the issue of costs.
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