Geddes v Victorian WorkCover Authority
[2018] VCC 2061
•12 December 2018
IN THE COUNTY COURT OF VICTORIA AT MELBOURNE
COMMON LAW DIVISION SERIOUS INJURY LIST
Revised Not Restricted
Suitable for Publication
Case No. CI-18-03065
SUE PAMELA GEDDES Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY Defendant
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JUDGE: HIS HONOUR JUDGE P GINNANE
WHERE HELD: Melbourne
DATE OF HEARING: 5 December 2018
DATE OF JUDGMENT: 12 December 2018
CASE MAY BE CITED AS: Geddes v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION: [2018] VCC 2061
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – crush injury to the right thumb – loss of earning capacity – pain and suffering conceded
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited: Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop
[2014] VSCA 292
Judgment: Leave granted.
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APPEARANCES:Counsel Solicitors
For the Plaintiff Ms J Forbes QC with Ms J Frederico
Maurice Blackburn Pty Ltd
For the Defendant Ms M Tsikaris Minter Ellison
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
HIS HONOUR:
1This proceeding is brought by the plaintiff under the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”). The plaintiff seeks leave for a certificate to be issued to commence common law proceedings for pain and suffering and loss of earnings. The defendant, at the commencement of the proceeding, conceded pain and suffering. It contested however that the plaintiff has established that she has:
·sustained a loss of earning capacity of 40 per cent or more; and
·she will, after the date of the decision, continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more (See s325(2)(e) of the WIRC Act).
2The plaintiff suffered a crush injury to her right thumb at work and has undergone two surgeries. I examined the thumb in the hearing at the invitation of counsel. The defendant’s concession seems appropriate.
3To determine if the plaintiff has sustained a 40 per cent loss of earning capacity, the Court must determine the plaintiff’s pre-injury and post-injury earning capacity and determine whether there is a 40 per cent loss due to the injury. The plaintiff’s pre-injury and post-accident earning capacity is determined in accordance with s325(2)(f) of the WIRC Act.
4The defendant and plaintiff disagreed about the method I should apply to determine, as I am required to do, that which most fairly reflects the plaintiff’s earning capacity if her injury had not occurred.
5The identification of the plaintiff’s pre-injury and post-injury earning capacity warrants comparison.
6When determining the pre-injury earning capacity of the plaintiff, the Court is required to choose from one of a series of four scenarios and use one that most
fairly reflects the plaintiff’s earning capacity if the injury had not occurred. These have been identified as;
·the gross income that the plaintiff was earning during the period of three years before the injury;
·the gross income that the worker was capable of earning from personal exertion in the three years before the injury
·the gross income the worker would have earned in the three years after the injury, if the injury did not occur;
·the gross income the worker would have been capable of earning from personal exertion in the three years after the injury, if the injury did not occur.
7It is also relevant in the ultimate exercise I am called on to decide, to have regard to “suitable employment” which is defined to mean:
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)having regard to the following—
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker's pre-injury employment;
(iii) the worker's age, education, skills and work experience;
(iv) the worker's place of residence;
(v) any plan or document prepared as part of the return to work planning process;
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b)regardless of whether—
(i) the work or the employment is available; or
(ii) the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes—
(c)employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
(d)employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
(e)suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education.”
8The plaintiff must also show, and it is she who bears the onus in this regard, that she has suffered a permanent loss of earning capacity of at least 40 per cent after any reasonable rehabilitation and retraining.
The Plaintiff’s gross income from personal exertion
9Both parties’ counsel furnished sheets consisting of helpful calculations they advanced to identify the plaintiff’s gross income. The defendant’s calculations identified that the plaintiff’s gross taxable income for the financial years were as follows:
30 June 2012 $47,510 30 June 2013
$48,702
30 June 2014
$52,329
30 June 2015
$52,059
30 June 2016
$54,544
30 June 2017
$23,981
30 June 2018
$33,601
The Plaintiff’s submission
10In order to appreciate the plaintiff’s submission, the following matters need to
be mentioned:
(i)the plaintiff said in her affidavit sworn in support of the application for a serious injury certificate that any time she uses her thumb, “I have pain”;1
(ii)The plaintiff said that following her work injury and surgeries, she returned to her employment with Strathmore Secondary College (“the employer”). The plaintiff said however that she “relied on the support of others in the canteen” to perform the work that she had previously undertaken. The plaintiff was made redundant in September 2016 as a result of the canteen being privatised. The plaintiff applied for her old job under the new privatised arrangement but was unsuccessful;
(iii)The plaintiff applied in September 2016 for the role of canteen manager with Staughton Secondary College in South Melton. She was unsuccessful but was offered the role of a teacher’s aide;
(iv)The plaintiff continues to work as a teacher’s aide. She said she worked approximately 29 hours a week and receives $1,104.00 gross per fortnight;
(v)The plaintiff deposed in a second affidavit that she believes she is working at her “maximum capacity”.
11I accept that the plaintiff’s proper classification was such that at the relevant time, being within three years after the injury, her gross income is $59,986.
12I accept that the plaintiff did some unpaid overtime as canteen manager and also was paid some overtime, and this occurred when the school canteen was opened for school functions but these were rare instances. The plaintiff said that the absence of performing regular overtime but the fact of overtime being worked was such that it would be fair to acknowledge a payment on account of overtime and to therefore to set the plaintiff’s earning capacity inclusive of the
Plaintiff’s affidavit sworn 6 March 2018, Plaintiff’s Court Book 17, paragraph 19
overtime at a sum of not less than $60,000. I agree.
13The plaintiff commenced her current employment as a teacher’s aide in Term 4 of 2016. She works 29.2 hours per week and her annualised income for the financial year ended 30 June 2018 is $35,827.
14The plaintiff said that she was not paid overtime in the teacher’s aide role but rather additional time is provided as time in lieu.
15Counsel for the defendant, Ms Tsikaris, submitted that the plaintiff does not meet the threshold for loss of earning capacity because the sum referred of
$59,986 is derived from a 38-hour week, whereas the plaintiff’s affidavit evidence is that she was working a 36-hour week, as was also the suite of hours expressed in the plaintiff’s Claim for Compensation. The defendant therefore contends that the amount the plaintiff is earning for the hours she is working exceeds 60 per cent, based on the figures supplied by the plaintiff for a 38-hour week.
16Counsel for the plaintiff, Ms Forbes, submitted that in circumstances in which there was both regular hours worked beyond 36 and there was paid overtime for those occasions during the school calendar when the plaintiff was required to work, then I should feel confidently satisfied that use of the full-time (ie 38 hours) base wage would be the fairest exercise.
The Plaintiff
17I am satisfied the plaintiff is an honest and hardworking woman who has suffered an injury which has significantly impeded her working capacity. When cross-examined, I found her efforts to explain some matters upon which the defendant relied to identify her working hours as 36 and not 38 hours a week as genuine. What the plaintiff said rang true and although she was paid for a 36-hour week, I am satisfied that she in fact worked greater than this. She said that in fact she regularly worked outside the hours of 7.30am to 3.30pm because of a number of the deliveries made to the canteen prior to 7.30am that she was
required to be on site to receive from suppliers such as Coca Cola and Nippy’s, together with bread and milk deliveries. In addition, she said that because she “… got tied up with ongoing things throughout the day I would stay back and do my paperwork for the ordering and that for the next day. So that’s how my day extended”.2
18The plaintiff was asked to explain why she had deposed in her affidavit that “I worked approximately 36 hours per week over five days” and she said that these were the hours she was paid for “approximately”. She did not agree that her oral evidence meant that she had made a false statement in her affidavit. I do not regard the plaintiff as having given false evidence. The word “approximately” is one that I think sensibly accommodates the ebbs and flow of the additional hours worked by the plaintiff, whether at one end of the day or the other and, presumably as well, this accommodated a number of pre 7.30am deliveries. I do not treat the word “approximately”, as the defendant’s counsel would have it, as a word that is inappropriate if the plaintiff is in fact relying on consistent and regular additional working hours and that she should have been expected to recount with specificity. Whilst it would have been preferable had she done so, I do not think the approximation of it results in the plaintiff not having discharged her proof. The plaintiff said, when asked by me, that as best she can estimate, the additional hours above the 36 paid hours per week amounted to about 4 hours a week.
19The defendant asked the plaintiff if it was the case that after a period of modified duties and modified hours, she had returned to her work as canteen manager, and she agreed that she had, and this occurred in about November 2015, and furthermore, that after the privatisation of the canteen, she agreed that she applied for the same role, performing the same duties and working the same hours. She said however that when she applied for the role, she was still on modified duties and was unable to serve “like I used to” and so she was not as
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functional in the performance of the range of tasks expected in the role as she had been before the injury. Certainly, I accept the plaintiff’s evidence that there was a considerable financial imperative to retain employment and I do not equate her effort in applying for the “new” position of canteen manager as evidence of her capacity to do all the tasks of the position. In fact I prefer and accept her evidence that she could not. It was in consequence of having failed to succeed in the canteen manager’s role that the plaintiff impressed her interviewees sufficiently that she was offered the role of teacher’s aide. This is the role for which the plaintiff is paid for 29.2 hours per week.
20The plaintiff was taken by the defendant to the report of Dr Horsley, occupational physician, who reported the plaintiff having said that she was limited to 30 hours’ work a week due to the nature of her position as a teacher’s aide. She said she did not tell Dr Horsley that she was working 30 hours a week. The plaintiff said she arrives at 8.00am, with a commencement time at 8.30am, and in the half-hour interval she attends to work emails and chats to others socially. She said that the employer permits a paid period of 15 minutes each morning from 8.30am to 8.45am to check emails and staffing arrangements such as absences.
21The plaintiff was directed to the report of Mr Ireland, hand surgeon, for the purpose of suggesting she had a capacity with retraining for suitable employment to undertake full-time hours.
The calculations
22The mathematics I have adopted is that I have taken the figure of $60,000 as the full-time earnings of the plaintiff as canteen manager, for which 60 per cent equates to $36,000, which I fix as the plaintiff’s “without injury” earnings.
23I do not regard the plaintiff’s attempt after the accident to return to her job by way of applying for the position following its privatisation as having particular probative worth in the exercises I am charged with, as the plaintiff pointed to changes in the role post privatisation and the reality of whether she could have
performed the role is too speculative. All that can be said is the plaintiff was not offered the role.
24The defendant focused some attention on the plaintiff having applied for the canteen manager’s position at Staughton Secondary College as evidence I should pay regard to and be satisfied of finding that she showed a capacity to perform that role full time. I do not agree. It shows no more than the plaintiff exhibiting an intention to try her best to secure work in her field of experience but for whatever reasons she was unsuccessful; however, as infelicitous as the language adopted by the plaintiff in her affidavit which she adopted as true, may be, the affidavit went on to depose, at paragraph 36, the following:
“… As a result of my injuries, I am not able to work as a canteen manager, or in any employment in my chosen profession as a chef.”
25The plaintiff explained the significant limits imposed on her as a result of her injury. I accept her evidence.
Discussion and analysis
26In light of the plaintiff’s evidence, it was submitted on her behalf that the full- time Federal Award under which she would be working after injury equates to
$59,986. The plaintiff further submitted that the situation that most fairly reflects her earning capacity had the injury not occurred is for me to determine the plaintiff’s gross income within the three years after the injury, being an amount of not less than $60,000. The plaintiff acknowledged that this would require me to be satisfied that the plaintiff worked extra hours for which she was paid overtime. I have already accepted this approach as warranted.
27The plaintiff’s calculations furthermore assess her working at 29.2 hours per week, amounting to $35,827 gross per annum. In fixing this amount, no overtime is included, because of the plaintiff’s evidence that any extra hours worked by her are taken as time in lieu. I accept this submission. I am also satisfied the nature of the email checking and the work of attending for deliveries is qualitatively different in character and demand on the plaintiff’s capacity.
From this set of calculations, the arithmetic is straightforward, and it is that 60 per cent of $60,000 equates to $36,000. Satisfied as I am by this method of reasoning, then it will follow that the plaintiff has suffered greater than a 40 per cent pecuniary loss.
Findings
28I am satisfied the plaintiff worked at least a 38-hour week. I am satisfied in reaching this conclusion and making this finding that it represents a permissible path of reasoning in accordance with the decision of the Court of Appeal in Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop.3 I am satisfied that the gross income the plaintiff was capable of earning is the best measure to enable me to find those earnings which fairly reflects the plaintiff’s capacity to earn from her personal exertion. I accept this is the fairest measure, because I accept that the plaintiff was required to be in attendance by 7.00am to facilitate deliveries. She was not paid overtime for this work. I am satisfied that the plaintiff was also required on a number of occasions in the course of a school year to work additional hours for which she was paid overtime but that the amount of time is of indeterminate duration and was accepted by the defendant’s counsel to sound in a very small sum. The real question for me is whether, on balance, I prefer the account of the plaintiff that her paid hours were on the whole 36 hours (according to the plaintiff these were hours specified in her contract of employment) or whether she worked 38 hours or more. On balance, I am satisfied by the plaintiff’s evidence that she worked at least 38 hours or more. I refer to the fact that the plaintiff’s Claim for Compensation signed by the defendant’s HR officer recorded the plaintiff’s ordinary work hours were 7.30am to 3.30pm five days a week. This would result in the plaintiff’s ordinary hours equating to 40 hours a week. The calculations reveal however that the plaintiff was only paid for 36 hours. Why that was so was not explained by the evidence. Whilst the plaintiff has accepted that in the report prepared by Dr Horsley it is recorded that she was working 36 hours, she also said that she
[2014] VSCA 292
would have likely explained that she did additional unpaid hours. I accept her evidence. I also accept that the reference to the 36 hours appears too in the report of Mr Ireland, but again, whilst not disputing this, the plaintiff said, and I accept, that she would have referenced the unpaid time she worked. The defendant pointed to the IPAR Rehabilitation Return to Work Arrangements dated 20 April 2015 that disclosed the plaintiff working up to a 38-hour week but to which is added a handwritten annotation wherein the number of 38 hours is crossed out and in lieu the number 36 is handwritten; however, in the IPAR report dated 28 April 2015, the plaintiff’s hours are contemplated to reach a 38- hour week.
29The defendant referred to the report of Mr Anstey, plastic and reconstructive surgeon, who, in June 2015, reports the plaintiff being back at work “on 36 hours per week but is not performing her full normal duties”.
30Despite the scope that exists in the materials to which counsel for the defendant directed me and upon which the plaintiff was in part challenged in cross- examination, I prefer the account of the plaintiff. The analysis is by no means perfect, because although that estimate of an additional four hours would mean the ordinary hours were 40 hours and so accord with the stipulation made by the employer on the Claim Form (ie 7.30am to 3.30pm five days a week) and the plaintiff’s additional estimate of four hours, the latter is calculated on a 7.30am commencement time and not the 7.00am start; however, on any of these scenarios, I am satisfied the plaintiff was working at least a full-time suite of weekly hours, namely at least 38 hours, but more probably something additional still. What I am satisfied of is that the figure of $60,000 is a fair minimum sum to fix upon as the plaintiff’s “without injury” earnings.
31Next I am required to make my determination about the plaintiff’s “after injury” earnings in the relevant three-year period. I am satisfied that the method that is most sensible and fair is to do so by reference to the gross income the plaintiff is earning in suitable employment or not from her personal exertion as opposed
to what the plaintiff is capable of earning in suitable employment (the course urged on me by the defendant).
32I find that the plaintiff is working 29.2 hours per week, earning $35,827 gross per annum in her current employment. I am satisfied that the other jobs (either the current job of teacher’s aide or the others identified in the IPAR report), which are the jobs the defendant urges me to be satisfied the plaintiff could be earning her income from, are calculated on a full-time capacity.
33The plaintiff testified that she attends her workplace at about 8.00am of a day and that the transport scheduling from home to work necessitates that she do so. Her paid commencement time is 8.30am. She said that in the course of the half hour, about half of it is spent checking emails and then chatting socially. She said that the employer permits a paid period of 15 minutes each morning from 8.30am to 8.45am to check emails and staffing arrangements such as absences before the day’s work gets underway.
34The defendant submitted that this extra half hour should lead me to conclude that the plaintiff has a demonstrated capacity for at least 31.7 hours per week and this would equate to $38,894 per annum. If the plaintiff can work 30 hours a week, the defendant says that is evident because of the calculation that absent the half hour spent between 8.00am and 8.30am, the plaintiff’s hours are 29.2 hours a week and so with the addition of the extra unpaid 30 minutes spent each morning, the plaintiff fails in establishing more than 60 per cent of her “without injury” earnings. Furthermore, the defendant points out that I should be satisfied the plaintiff is capable of performing full-time suitable employment for the jobs identified in the IPAR Vocational Assessment Report dated 28 February 2018 of:
·Customer Service Assistant or Enquiry Clerk - $52,000 per annum
·Administration Officer or General Clerk - $52,000 per annum
·Receptionist - $44,200 per annum.
35I am not satisfied the other jobs that have been identified satisfy the meaning of “suitable employment”. The plaintiff is fifty-five years of age. The alternative full-time positions are jobs that do not reflect the plaintiff’s prior work history and for which the plaintiff has received no training or been provided occupational rehabilitation services germane to the identified positions in the IPAR report.
36In regard to this limb of enquiry, I am satisfied that the most realistic process is not to look to the identified positions in the IPA report, each of which I am satisfied do not amount to “suitable employment” because they are positions for which the plaintiff has not had previous experience and for which, in my assessment of their suitability for the plaintiff, are jobs for which she has not been provided rehabilitation services or is equipped to undertake on a full-time basis. Instead, I am satisfied that this is a case where I need not consider the hypothetical positions but that this is a case where I can readily assess the plaintiff on this limb of enquiry by reason of the position in which she is currently employed.
37The defendant submitted that the plaintiff has a capacity that is greater than she is currently exercising in the teacher’s aide job. I was impressed with the plaintiff’s demonstrated work ethic and I have no hesitation in finding that if she could work greater than she is working then she would do so. She described to me, and I accept, that by the end of her working week, her thumb is sore and the work of the teacher’s aide requires, on her part, a level and frequency of writing that causes pain to her thumb. I am also not satisfied that the plaintiff’s part half hour she chooses to use between 8.00am and 8.30am in checking work emails is comparable in terms of the capacity and time spent from 7.00am in attending to the provision of deliveries before the 7.30am start. The email checking in part of the half hour before 8.30am is a comparatively docile activity.
38I am satisfied that the consequences of the plaintiff’s injury are serious with
respect to a loss of earning capacity. I am satisfied that the plaintiff’s actual earnings as a teacher’s aide is the best and fairest measure to find the plaintiff’s “after injury” earnings and I am satisfied that the plaintiff is working in suitable employment to the extent of her capacity. I am satisfied the plaintiff suffers from restrictions that are permanent and that this manifests itself in a permanent loss of earning capacity of the statutory percentage required for a serious injury certificate to enable proceedings to be commenced at common law for economic by reason of a loss of earning capacity and for pain and suffering.
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