Genc v Inci Corp Pty Ltd
[2017] VCC 1304
•22 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-01734
| CEM GENC | Plaintiff |
| v | |
| INCI CORP PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 September 2017 | |
DATE OF JUDGMENT: | 22 September 2017 | |
CASE MAY BE CITED AS: | Genc v Inci Corp Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1304 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower back – pecuniary loss – suitable employment
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Application successful.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr L Paine | Grando & Breheny |
| For the Defendant | Mr D McWilliams | Wisewould Mahony |
HER HONOUR:
Preliminary
1 Mr Genc is a 32-year-old man who claims to have suffered an injury to his lower back on 21 March 2014, whilst moving a 240-litre bin, during the course of his employment with the defendant. Despite having undergone surgery, Mr Genc claims that he continues to suffer constant back pain and that he is restricted in a range of activities. Mr Genc has not worked since 15 April 2014, and claims that as a consequence of his lower back injury he is now restricted, at most, to sedentary work, on a part-time basis.
2 Mr Genc claims to have suffered serious consequences as a result of this lower back injury, both in respect of his pain and suffering and his loss of earning capacity. In order for Mr Genc to be entitled to claim common law damages, the impairment of his lumbar spine must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“ACA”).
3 The defendant disputes that Mr Genc’s back injury has caused him to suffer a “serious injury” in respect of both pain and suffering and loss of earning capacity.
4 Only Mr Genc was called to give evidence, and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
5 For the reasons which follow, I am satisfied that Mr Genc has satisfied the requisite loss of earning capacity test, such that he should be granted leave to commence common law proceedings for both pain and suffering and pecuniary loss damages.
Mr Genc’s life before he suffered his back injury
6 Mr Genc was born in 1984 in Ankara, Turkey. After finishing secondary school he attended Gazi University in Ankara, where he obtained a degree in International Relations. He then performed national service for five months, before studying English in order to qualify for a senior position in the public service. Mr Genc said that as he failed the exam, he decided to come to Australia to improve his English.
7 On 10 August 2008, Mr Genc arrived in Australia on a student visa. He commenced studying English at GEOS, where he met an English girl. In order to stay in Australia, Mr Genc then enrolled in further courses and applied to the Australian Government for permanent residency. He then commenced a multimedia course at an institution called Cambridge in Melbourne. Mr Genc attended for six months, but did not complete the course, as he found it too difficult and did not enjoy it. Mr Genc then enrolled in an auto mechanic course, which he completed over a period of 19 months. He did not really enjoy this course either, but persisted on the basis that his visa required him to continue studying. Whilst studying, Mr Genc also worked an average of 20 hours per week for E&O Cleaning Services, cleaning office buildings.
8 In about 2010, Mr Genc consulted psychologist Mr Ali Kasapgil on approximately five occasions, as he was experiencing relationship problems with his then girlfriend. Mr Genc said that this treatment involved counselling for anger management and stress.
9 At the time of finishing his student courses, Mr Genc received his permanent residence visa. From approximately the middle of 2011 he then worked full-time for E&O Cleaning Services.
10 In 2012, Mr Genc returned to Turkey for a holiday. He returned in December 2012, and was unable to find work until March 2013, at which time he commenced employment with the defendant, a Turkish cleaning business.
11 Mr Genc said that prior to suffering his injury with the defendant in March 2014, he had no recollection of ever having attended a doctor in Melbourne for any health problems.
12 Mr Genc said that he used to enjoy socialising at bars and playing basketball with friends once or twice a month.
Mr Genc’s lower back injury and its consequences to him
13 In March 2013, Mr Genc commenced employment with the defendant. For approximately the first five months of his employment, Mr Genc worked as a cleaner at Trinity and Ormond Colleges at the University of Melbourne, Pier restaurant, and the Post Office in Port Melbourne. He worked eight hours a day, five days a week.
14 At about the end of August 2013 the defendant obtained a subcontract to clean the Victorian University campuses, under which Mr Genc was given a supervisory role. Mr Genc said that he spent an average of five to ten hours a week answering phone calls and keeping records in relation to cleaning maintenance, and that he spent the remainder of his time checking various campus sites. Mr Genc said that he received emails as to specific cleaning requirements, and that his primary function was to deal with specific work orders.
15 Mr Genc said that each of the various campuses had 240-litre bins that were used to store waste, usually paper, and that such bins would become very heavy. He said that the bins were approximately 1.3 metres high by 60 centimetres by 60 centimetres.
16 On 21 March 2014, Mr Genc received a specific work order to move a 240-litre bin from inside a building. He checked the bin and said it was nearly full. Mr Genc then moved the bin downstairs using a lift, before he was then required to pull it approximately 100 metres. In so doing, Mr Genc felt a sharp pain in his lower back. He said he had to stop and get his breath, after which he continued to have back discomfort.
17 Within a few days, Mr Genc said that he began to experience what felt like electricity going down his right leg, and said that his symptoms gradually worsened.
18 On 7 April 2014, Mr Genc consulted general practitioner Dr Mustafa Ahmet at the Jewell Medical Clinic. Dr Ahmet arranged for Mr Genc to undergo a CT scan of his back and prescribed him Prednisolone for his back pain.
19 On 14 April 2014, a CT scan was taken of Mr Genc’s lumbosacral spine. It was reported as demonstrating an L5/S1 right lateral/postero-lateral disc protrusion with impingement of right L5 and S1 nerve roots, mild L3/4 and mild/moderate L4/5 broad-based disc bulges.
20 On 15 April 2014, Mr Genc again consulted Dr Ahmet regarding his ongoing back pain. Dr Ahmet prescribed painkillers and put Mr Genc off work. He has not returned to work since this time.
21 In April 2014, Mr Genc was referred to neurosurgeon, Mr Girish Nair. Mr Nair noted that, upon examination, Mr Genc had limited straight leg raising on the right side as well as significant limitation in his range of movements, especially in a forward flexion. Mr Nair recommended that Mr Genc undergo an MRI scan and then return for a further review.
22 On 2 May 2014, an MRI scan was taken of Mr Genc’s lumbar spine. It was reported as demonstrating the following: “Right paracentral/foraminal disc protrusion at the L5/S1 level results in contact and mild compression of the exiting right L5 and descending right S1 nerve roots. Small L4/5 disc protrusion possibly contacts the descending left L5 nerve root.”
23 On 9 May 2014, Mr Genc returned to see Mr Nair. As he did not have any significant weakness, and his pain symptoms seemed to be under control, Mr Nair recommended that Mr Genc undergo a CT-guided injection before considering an L5/S1 microdiscectomy.
24 In May 2014, Mr Genc underwent a CT-guided steroid injection into his back. Mr Genc found that the injection only reduced his pain for a short period of time before it returned.
25 In about May 2014, Mr Genc was referred to physiotherapist Mr Mark Jans, whom he consulted twice a week for a period of time.
26 On 30 May 2014, following his CT-guided injection, Mr Genc returned to see Mr Nair. He noted that Mr Genc reported a subtle improvement in his symptoms, including that his walking had improved and that he did not have a limp. Mr Nair noted that Mr Genc had elected to commence physiotherapy treatment, and to hold off progressing with a microdiscectomy at that time.
27 On 27 June 2014, Mr Genc returned to see Mr Nair following an additional referral from Dr Ahmet, as he was experiencing a worsening of the pain down his right leg. Given that he had exhausted the medical means of management, Mr Nair discussed the possibility of Mr Genc undergoing a microdiscectomy, for which he subsequently sought approval from the WorkCover insurer.
28 On 29 August 2014, Mr Genc underwent a right L5/S1 laminectomy, microdiscectomy and rhizolysis, at the John Fawkner Hospital. Mr Genc remained as an inpatient for four days.
29 On 17 October 2014, Mr Genc consulted Mr Nair for his six-week postoperative review. Mr Nair noted that Mr Genc had experienced a complete resolution of the sharp pain down his leg, but that he still had ongoing pain in the back and mild pain in his buttock, which was especially worse when he was sitting for a prolonged period of time. Mr Nair cautioned Mr Genc against performing any heavy lifting, bending, repetitive twisting and turning movements or prolonged sitting or standing. Mr Nair also advised Mr Genc that he could return to work on light duties, as long as the abovementioned restrictions were taken into account.
30 Following the operation, Mr Nair referred Mr Genc for hydrotherapy treatment, which he attended two or three times a week for approximately three months. About two months after the operation, Mr Genc also restarted physiotherapy with Mr Mark Jans, which he attended twice a week for about a year, and subsequently once a week until early 2016. Mr Genc then received physiotherapy once a fortnight, until the WorkCover Insurer terminated his entitlement to such treatment in late 2016.
31 Mr Genc said that whilst the surgery removed most of his right leg discomfort, he felt that his lower back pain seemed to worsen. Mr Genc said that he became very anxious, and that in January 2015 Dr Ahmet referred him back to Mr Ali Kasapgil for psychological treatment.
32 On 2 February 2015, an MRI scan with contrast was taken of Mr Genc’s lumbar spine. It was reported as demonstrating “evidence of previous right microdiscectomy and right L5/S1 laminotomy. Small residual right foraminal disc which contacts the right S1 traversing nerve root but no impingement.”
33 In March 2015, Mr Nair referred Mr Genc to pain specialist, Dr Zamil Karim, whom he first consulted on 8 April 2015. Dr Karim recommended that Mr Genc would benefit from a pain-management course at Dorset Rehabilitation.
34 On 11 June 2015, Mr Genc undertook an eight-week pain-management course at Dorset Rehabilitation. He attended the course from 9am until about 2.30pm, five days a week. He was given exercises to complete, received counselling, and was given occupational therapy. Mr Genc said that psychologically he felt better after this course, but that it did not affect his pain.
35 Following the pain-management course Mr Genc saw Dr Karim once or twice, but has not seen him since the end of 2015 or early 2016.
36 In about the middle of 2016, CAC, a rehabilitation agency appointed by WorkCover, arranged for Mr Genc to undertake a security course. Mr Genc said that the course was meant to be of one-month duration, but that due to his back pain he missed a lot of classes and ultimately took two months to complete the course. Upon completion, Mr Genc said that he applied “to nearly every security agency in Melbourne” but did not hear back from anyone. In any event, Mr Genc did not think that he could perform such work, on the basis that any activity, whether it be sitting or standing, increases his back pain. Mr Genc said that he spends at least several hours each day lying down because of his back pain.
37 In about August 2016, Mr Genc met his now wife, Lilliana, on an Internet dating site. They started a casual sexual relationship, and she became pregnant in about December 2016. They were married on 10 May 2017 and had a daughter in late August 2017.
38 On 6 March 2017, an MRI was taken of Mr Genc’s lumbar spine. It was reported as demonstrating the following: “Posterocentral to right paracentral residual L5/S1 disc bulge and probable small focus of epidural granulation tissue, without mass effect upon the right S1 nerve. Appearances are unchanged compared with the study of February 2015. Elsewhere no neural compression.”
39 Mr Genc continues to see his general practitioner, Dr Ahmet, at least once or twice a month. He also sees his psychologist, Mr Kasapgil, once per month but does not otherwise receive any other treatment for his back. Mr Kasapgil has diagnosed Mr Genc has suffering adjustment disorder with depressed and anxious mood.
40 Mr Genc said that his entitlement to weekly payments ceased in late 2016, and that he is currently in receipt of a Centrelink Newstart benefit. He said that Dr Ahmet has been providing him with certificates, which state that he is unfit for all work. As a result, Mr Genc does not have to apply for any jobs.
41 Mr Genc said that Dr Ahmet currently prescribes his medication, and that he is taking Gabapentin 300 milligrams in the morning, afternoon and at night, Panadol Rapid four to six tablets a day, and Proxine 1000 milligrams once a day. He also takes an anti-depressant, Cymbalta, 60 milligrams in the morning.
42 Mr Genc said that he has pain in his lower back that is more pronounced on the right side, and that such pain is constant, with varying severity. Mr Genc said that he also gets cramps in his right big toe multiple times per day, and that such cramps last for a few minutes. He said that he also occasionally has pain in his left leg and cramps in his left big toe.
43 Mr Genc said that he has a base level of pain, as well as times that his back spasms, which he described as a “crazy pain”. He said that he has back spasms every one to two months, and that such periods can last anywhere from a few days to as long as a month. Mr Genc said that the intensity of the pain varies from the first to the last day of the back spasm, but that when he has such a spasm he has had to “crawl to go to toilet”. Mr Genc said that he recently experienced “crazy pain” after he did some ironing for about 30 minutes, and that the increased pain lasted for a week.
44 Mr Genc said that he has difficulty sleeping due to his back pain, and that he wakes most nights in pain. When this occurs, he gets up and moves around, and will then sit in the living room watching television, with cushions behind his back, until the pain eases.
45 Mr Genc said that his lower back pain is aggravated by prolonged sitting and standing, and that he has to spend much of his time lying down. He also said that he cannot bend too far, and that to get something from on or near the ground he has to squat and go to his knees.
46 Mr Genc said that he can drive a car, but that he must take a break after approximately 30 minutes.
47 Mr Genc said that walking aggravates his lower back pain, and that whilst he can walk for up to 20 minutes, he rarely does so. Mr Genc said that he no longer plays basketball, and that he has only been out with his friends on three occasions since suffering his injury.
48 Mr Genc said that he has difficulty concentrating due to his ongoing pain. He recalled one occasion on which he attempted to read a Turkish book, but had difficulty remembering what he had read after only 11 pages.
49 Mr Genc said that he is stressed by his ongoing pain and inability to work. In cross-examination, he was asked if the stress was more significant than his back pain, to which he replied,
“My back causes stress, so if my back wasn’t hurting I wouldn’t be stressed.”
50 Mr Genc said that earlier this year, he became anxious about how he would cope with his new baby. He said that his mother-in-law is currently visiting from overseas, and that she is providing help to his wife and their baby.
Mr Genc’s medico-legal evidence
51 Mr Genc’s solicitors arranged for him to be examined by neurosurgeon Professor Richard Bittar on two occasions, in July 2016 and August 2017. In his first report, dated 1 July 2016, Professor Bittar diagnosed Mr Genc as suffering right-sided lumbosacral radiculopathy, secondary to L5/S1 disc prolapse, discogenic back pain, and failed back surgery syndrome. Professor Bittar accepted that Mr Genc’s employment has been a significant contributing factor to these conditions, and in particular the incident on 21 March 2014.
52 Professor Bittar was of the opinion that Mr Genc’s prognosis was poor, and noted that he continued to experience very significant symptoms and associated disability related to his work-related disc prolapse which impacted adversely on all aspects of his life.
53 Professor Bittar was also of the opinion that Mr Genc was incapacitated for his pre-injury duties as a cleaner. In his opinion, if Mr Genc was able to complete his security course and find work in that area, he may be able to work, at most, two or three hours per day, three to four days per week. However, he noted that this residual work capacity was dependent upon Mr Genc receiving further treatment of his lower back condition that actually improved his symptoms and level of function. He also noted that, “on balance, it was unlikely that he would be able to work in any suitable role in a reliable and consistent manner, and it was likely that he would experience flare-ups of pain requiring him to take frequent and unpredictable time off work”.
54 In his second report, dated 17 August 2017, Professor Bittar confirmed his opinion that Mr Genc is incapacitated for his pre-injury duties as a cleaner, and noted that he has a very limited capacity to undertake suitable duties. He stated that, in theory, Mr Genc could work two to three hours per day, three to four days per week. However, in practical terms Professor Bittar believed that Mr Genc was totally incapacitated for work, and that this incapacity was almost certainly permanent.
55 Mr Genc’s solicitors also relied upon a medico-legal report obtained by the defendant from occupational physician Dr John Lange, who assessed Mr Genc in April 2016. In his report dated 6 April 2016, Dr Lange diagnosed Mr Genc as suffering from postoperative pain and residual right-sided L5/S1 disc lesion. Dr Lange considered that the condition had not resolved and that it continued to be attributable to his employment with the defendant.
56 Dr Lange was of the opinion that Mr Genc had the capacity to undertake light work, with no lifting over five kilograms and no bending. He said that Mr Genc should also limit his sitting to approximately 30 minutes at one time, and recommended that he be able to alter his posture between sitting and standing.
57 Dr Lange then considered the proposed occupations in the 130-week vocational assessment report. He thought that Mr Genc would struggle to undertake work as a courier, on the basis that the extensive periods of driving would be inconsistent with the fact that his back pain is exacerbated by sitting. Dr Lange said that Mr Genc could undertake work as a CCTV operator, as the role involved looking at security cameras together with some light patrol work. He was concerned that work as a rental officer would require Mr Genc to lift products for clients, which he did not consider to be appropriate. Dr Lange considered the roles of information and enquiry clerk and appliance tester and tagger to be appropriate. He considered that Mr Genc could undertake work as a sales consultant at a store, but thought that a sales representative would be difficult, as it requires extensive periods sitting in a car. He noted that Mr Genc could not drive for more than 30–40 minutes at one time, as this exacerbated his back pain.
Defendant’s medico-legal evidence
58 The defendant arranged for Mr Genc to be examined by psychologist Dr Simon Kennedy in February 2016. In his report dated 8 February 2016, Dr Kennedy diagnosed Mr Genc as suffering an adjustment disorder with mixed anxiety and depressed mood.
59 Dr Kennedy was of the opinion that Mr Genc’s psychological state was secondary to his physical state, and considered employment to be a materially contributing factor to his condition. From a psychological perspective, Dr Kennedy did not consider there to be any incapacity for work.
60 Dr Kennedy considered psychological treatment to be appropriate on a monthly basis over the subsequent 12 months, and thought that it was likely to assist Mr Genc in a return to work.
61 The defendant arranged for Mr Genc to be examined by orthopaedic surgeon Mr Michael Dooley in February 2017. In his report dated 24 February 2017, Mr Dooley diagnosed Mr Genc as suffering naturally-occurring degenerative disc disease, involving mainly the lumbosacral level of the spine. He accepted that Mr Genc sustained a right-sided lumbosacral disc prolapse in the work incident of March 2014.
62 In accepting the injuries that he had sustained, Mr Dooley was of the opinion that the constancy and intensity of Mr Genc’s ongoing pain, together with his described disability, were greater than one would expect for his particular organic condition. Mr Dooley considered that Mr Genc’s psychological reaction to his situation influenced his ongoing symptoms.
63 The defendant arranged for Mr Genc to be examined by occupational and environmental physician Dr Michael Bloom on two occasions, in March 2017 and July 2017. In his first report, dated 6 March 2017, Dr Bloom stated that Mr Genc’s presentation was consistent with him suffering chronic lower back pain with referred symptoms, but with no convincing clinical radiculopathy. Dr Bloom considered that Mr Genc suffered a chronic pain syndrome or failed back surgery syndrome.
64 Dr Bloom accepted that the plaintiff was unable to resume his pre-injury physically demanding work, but thought that he had the physical capacity to safely undertake work with the following restrictions:
· avoid static posture;
· limit repetitive bending and twisting;
· limit repetitive manual handling of loads of seven to eight kilograms with occasional lifting of up to ten kilograms;
· avoid heavy pulling and pushing.
65 Provided that he was employed in accordance with these conditions and constraints, Dr Bloom was of the opinion that Mr Genc could attempt to return to work for three hours, three days a week, with a gradual increase to a maximum of 20 hours over a four-month period. He then stated that Mr Genc’s ability to increase from part-time to full-time work was dependent upon his response to further treatment and an increase in his resilience and level of tolerance.
66 Dr Bloom considered the occupations of despatch clerk, security officer, interpreter and supervisor/manager in the commercial cleaning industry to be suitable employment options.
67 Dr Bloom also considered the occupations identified in the CAC 130-week Vocational Assessment Report dated 26 February 2016. He accepted that the occupations of information/inquiry clerk and light courier, as well as some aspects of the role of sales consultation, were consistent with Mr Genc’s restrictions. He did not consider the occupation of appliance tester and tagger to be appropriate, as the role may involve heavy lifting, crouching, bending, kneeling and crawling. Dr Bloom also considered Mr Genc’s ability to work as a security officer to be dependent upon his being able to avoid any situation that might place him at risk of having to deal with altercations.
68 In his second report, dated 10 July 2017, Dr Bloom confirmed that Mr Genc’s overall condition had not materially changed since his last examination in March 2017. Dr Bloom recorded that Mr Genc’s pain level was normally 6–7 out of 10, but that when Mr Genc suffered a back spasm his pain increased to 9 out of 10. Dr Bloom stated that Mr Genc was unaware of the frequency with which he experienced these spasms, but said that it might average once every two months or so.
69 Dr Bloom was asked to consider the Suitable Employment Report from Recovre dated 16 May 2017. He considered each of the four occupations identified in the report, being despatch clerk, sales administration in a car recycling business, rental/customer service officer, and security officer/concierge in an office block building in the Melbourne CBD, to be within Mr Genc’s safe capacity and skill set. Dr Bloom did not think that Mr Genc would be at risk of further injury if he were to undertake any of these roles.
70 In his third and final report, dated 2 September 2017, Dr Bloom was of the opinion that, from a purely physical perspective, Mr Genc had the safe physical capacity to undertake up to 90 per cent of his pre-injury duties as a supervisor. However, he did not consider Mr Genc to have the capacity to undertake the heavier aspects of the role, such as moving the 240-litre bins.
71 Dr Bloom noted that, as Mr Genc had been out of the paid workforce for so long, and as a consequence had become so physically deconditioned, it would be necessary to reintroduce suitable duties on a graduated basis, commencing with three hours per day, three days per week, with an increase to 20 hours (four hours per day, five days per week) over a three to four-month period. Beyond that, from a purely physical perspective, and provided that his work was predominantly sedentary, semi-sedentary and/or very light in nature, allowing for frequent changes in posture, Dr Bloom considered Mr Genc had the ability to increase to full-time hours.
Mr Genc’s credibility
72 I consider Mr Genc to be creditworthy and reliable. He gave evidence in a simple, straightforward and believable manner.
73 I consider he made appropriate concessions in relation to those jobs he felt capable of performing. He did not express an inability to work in any capacity, but rather expressed genuine concern as to the impact his unpredictable back pain would have upon his ability to work as a reliable employee.
74 The defendant challenged Mr Genc’s credit on the basis that he had failed to disclose the existence of his relationship with his now wife at the time he swore his first affidavit on 14 December 2016. It was put to Mr Genc that he had intentionally withheld the existence of this relationship, in an attempt to portray that his back injury had adversely impacted upon his libido and his ability to maintain a relationship. However, Mr Genc said that at the time he swore his affidavit the relationship with his now wife was simply casual sex, and that it did not become a serious relationship until they discovered that she was pregnant. I accept Mr Genc’s explanation as to the nature of their relationship, and make no adverse criticism against him for the absence of reference to it in his first affidavit.
Admissibility of the Flexi Personnel report
75 Mr McGarvie submitted that a report of human resources consultant Ms Katherine Rintoule, dated 14 June 2017, should be admitted into evidence, on the basis that Mr McWilliams cross-examined Mr Genc on part of the history she had recorded therein.
76 Mr McWilliams read the following extract of the report into evidence, and Mr Genc responded as follows:
“[Y]ou said when Ms Rintoul asked you what the future held for you, did you say to her, “I don’t know. I can’t see much. It’s so stressful at the moment. I hope to get better medical treatment”?---Yes.
It’s the case, isn’t it, that you are troubled a lot by the stress in your life?
---Yes.And that has a significant impact on, firstly, your ability to socialise; that’s right? Your ability to go out?---Can I have that question again, please?
Of course you may. The stress you suffer has a significant impact on your life?---Yes, my back and stress, yes, both, yes.
If you didn’t have the stress, you would be able to go out more, wouldn’t you?---No.
You disagree with that?---No.
This is despite you said to Ms Rintoul that you don’t know what the future holds because it’s so stressful at the moment?---Yes, I might have said that, yes.
You might have said it or you did say it?---I don’t remember. I don’t remember.
What I’m suggesting to you is that because of the stress you suffer,
that’s a significant restriction on your ability to go out and socialise?
---My back causes stress, so if my back wasn’t hurting I wouldn’t be stressed. Make sense?”
77 Mr McGarvie submitted that, pursuant to s45 of the Evidence Act 2008, a document shall be admitted into evidence in circumstances where a witness has been cross-examined on a prior inconsistent statement detailed therein.
78 Mr McWilliams denied that the report constituted a prior inconsistent statement, on the basis that Mr Genc did not deny what Ms Rintoule had recorded. It was further submitted that, under sub‑s45(5) of the Evidence Act, the mere production of a document does not give rise to a requirement that the document then be tendered by the cross-examiner.
79 Mr McWilliams also submitted that a court shall not admit a document under s45(4) of the Evidence Act if the document is not admissible under chapter 3 of the Evidence Act. Mr McWilliams submitted that the report of Ms Rintoule was inadmissible, on the basis that it infringed the requirements of s79 of the Evidence Act.
80 In support of this submission, Mr McWilliams referred me to a previous decision of mine in the matter of Ceballos v Tronics Pty Ltd.[1] The only issue in dispute in that originating motion was whether or not the plaintiff had suffered loss of earning capacity consequences to the requisite level. The plaintiff had sought to rely upon a vocational assessment report produced by Ms Rintoule, the tender of which was objected to by the defendant. I ruled that the vocational assessment report was inadmissible, on the basis that I was not satisfied Ms Rintoule had the necessary qualifications or “specialised knowledge”[2] to offer the opinion that she did.
[1][2016] VCC 1242
[2]Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305 at [85]
81 I am of the same opinion in this case, in respect of the comments by Ms Rintoule regarding those jobs that may constitute suitable employment for Mr Genc. Ms Rintoule is not a medically qualified expert, and I consider many of the comments she makes to be beyond her expertise. As such, I must disregard those comments.
82 I consider the wage rates she provides for the jobs identified in the CAC report to be the only matters within Ms Rintoule’s expertise as a human resource consultant. I therefore consider this aspect of her report to be admissible. In such circumstances, whilst I will permit the tender of her report, I will only consider that limited aspect of her report in preparing my judgment.
Defendant’s vocational evidence
83 In May 2017, the defendant obtained a vocational assessment report from occupational therapist Ms Janette Ash of Recovre. Ms Ash did not interview Mr Genc before preparing her report, which was based upon the medical reports of Mr Dooley and Dr Bloom. In her report dated 16 May 2017, Ms Ash detailed workplace assessments based upon four of the jobs that Dr Bloom considered Mr Genc to be capable of performing. Mr Genc was cross-examined on each workplace assessment and responded as follows:
(i) Despatch clerk
Mr Genc accepted that he could undertake CCTV video monitoring to view trucks entering premises, as well as lean over 300 millimetres to accept paperwork delivered to him at a despatch window office. Mr Genc accepted that whilst he was generally able to speak to people over the phone, he found it more difficult to understand certain accents when on the phone than in person.
Mr Genc did not believe that he had sufficient computer skills to undertake the work described in Ms Ash’s report. He explained that he had not used a computer until after he had finished his degree in Turkey. He also said that he dropped out of the multimedia course he started in Australia, as he found it too difficult. Mr Genc said that his use of computers is now limited to reading newspapers and Facebook, as well as checking and sending emails, and that he does not know what Microsoft Word or Excel are.
I accept Mr Genc has very limited computer skills. As computer-based tasks are said to occupy 90-95 per cent of this job, I do not consider this role to constitute suitable employment.
(ii) Sales administrative role in a car recycling business
This job required the workers to have sound computer navigation skills. As I do not consider Mr Genc has these skills, I do not consider this constitutes suitable employment.
(iii) Rental/customer service officer
Mr Genc expressed concern that he could not do this job, as he believed a sales person needed to “look good”. He also expressed reservations as to whether or not such a job could accommodate his limited sitting and standing tolerances, as well as his response to suffering a back spasm whilst with a client.
I note that this job also involves computer-based tasks, for which I do not consider Mr Genc to be suitably experienced.
The hiring of rental cars involves numerous contractual documents, each of which need to be read and explained to customers as required. I consider this to be a fundamental aspect of the role of a car rental officer. Given English is Mr Genc’s second language, and based upon my assessment of him in the witness box, I do not consider that he would be capable of performing this role.
(iv) Security officer or concierge in CBD office location
Mr Genc accepted that he could perform aspects of this job, including moving warning signs of up to three kilograms, or moving rubbish or small items weighing three to five kilograms. However, he expressed concern as to the use of computers in this role.
Mr Genc said that he felt he could walk around the building for a short period of time, and go up and down the stairs. After this time, however, if he was in “crazy pain”, Mr Genc would then need to hide somewhere to lie down.
From the details provided in Ms Ash’s report, the requisite qualification for this job was a Certificate III in Security Operations and a Level II in First Aid. Mr Genc does not have either of these qualifications.
Is there a substantial organic basis to Mr Genc’s lower back injury?
84 Mr Dooley referred to Mr Genc’s psychological condition impacting upon his physical condition, and Dr Ahmet referred to Mr Genc suffering chronic pain.
85 In the Court of Appeal decision of Meadows v Lichmore Pty Ltd,[3] it was held that once a court has accepted that there is a substantial organic basis for the claimed impairment, the plaintiff need not disentangle the physical from the psychological contributions.[4] In this case, I am satisfied that there is a substantial organic basis to Mr Genc’s ongoing lower back pain. My conclusion is supported by the MRI scans taken post-surgery and the opinions of Mr Nair, Professor Bittar, and Dr Lange. I also note that, whilst Mr Dooley considered Mr Genc’s complaints to be out of proportion with what might ordinarily be expected of a person with similar pathology, Mr Dooley accepted there was an organic basis to Mr Genc’s complaints.
[3][2013] VSCA 201
[4][2013] VSCA 201 at [21]
Mr Genc’s claim for loss of earning capacity as a consequence of his lower back injury
86 To succeed in his application, Mr Genc bears the onus of satisfying me that as at the date of hearing, as a consequence of his lower back injury, he has sustained a loss of earning capacity of 40 per cent or more, and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment I must consider what Mr Genc is capable of earning, whether in suitable employment or not.
87 In undertaking this task, I must compare what Mr Genc is capable of earning in suitable employment with his pre‑injury earning capacity. To determine his without injury earning capacity, I must decide which of the following scenarios most fairly reflects his earning capacity had he not suffered the injury:
(a)the gross income that he was earning from personal exertion, or
(b)the gross income he was capable of earning from personal exertion, or
(c)the gross income he would have earned from personal exertion, or
(d)the gross income he would have been capable of earning from personal exertion,
during that part of the period within three years before and three years after the injury.
88 In The Herald & Weekly Times Ltd and Anor v Jessop,[5] the Court of Appeal stated that the court needs to consider which of the four alternative scenarios most fairly reflects the plaintiff’s earning capacity had the injury not occurred.[6]
[5][2014] VSCA 292
[6]Ibid at [42]–[44]
89 It was accepted by the parties that Mr Genc earned the following gross annual sums in these financial years:
2010/2011: $26,032.00
2011/2012: $27,407.00
2012/2013: $8,703.00
2013/2014: $35,630.00
90 At the time he was injured, Mr Genc earned $787.36 gross per week, which equates to an annual gross figure of $40,942.72. Mr McGarvie then sought to rely upon that part of Ms Rintoule’s report which applied the annual Fair Work Commission minimum wage increases to that figure in the three years subsequent to the date of injury. Based on those sums, it was submitted that Mr Genc’s without injury earning capacity was $45,723, which equates to a gross weekly sum of $879.
91 Mr McWilliams submitted that the defendant proposed $790.00 per week to be Mr Genc’s without injury earning capacity figure.
92 In circumstances where there is no evidence before me as to what comparable employees earned in the three years subsequent to Mr Genc’s injury, and whether the Fair Work Commission increases were given, I do not accept the figures proposed by Ms Rintoule. Instead, I accept the defendant’s figure of $790 per week as the figure that most fairly reflects Mr Genc’s without injury earning capacity. Therefore, in order to satisfy me that he has suffered the requisite loss of earning capacity, Mr Genc must prove that he is incapable of earning more than $474 per week, now and on a permanent basis.
What is Mr Genc capable of earning in suitable employment?
93 As was noted by the Court of Appeal in Harris v DJD Earthmoving Pty Ltd,[7] the assessment as to what constitutes suitable employment for a plaintiff is a test of physical capacity, not employability. It involves a consideration of what Mr Genc might, in the foreseeable future, be able to do on a regular and consistent basis, allowing for such improvement as might be thought likely or possible after undertaking vocational education.[8]
[7][2016] VSCA 188 at [48]
[8]Ibid at [49]
94 The definition of “suitable employment” is an objective test which looks at the plaintiff’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience, and whether or not the work is a reasonable distance from the plaintiff’s place of residence.[9]
[9]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [25] and [28]
95 I accept that Mr Genc suffers ongoing pain in his back which varies in intensity. I accept that he needs to avoid prolonged standing, sitting, walking, bending, and twisting, and that he should avoid lifting weights of more than five to seven kilograms.
96 The doctors accept that Mr Genc cannot perform his pre-injury duties as a cleaner.
97 However, all the doctors, save for Dr Ahmet, considered that Mr Genc has the capacity to perform alternate duties, on a reduced capacity.
98 Dr Ahmet, who has treated Mr Genc regularly since the date of injury, considers Mr Genc is incapacitated for physical work.
99 Associate Professor Bittar was of the opinion that Mr Genc could, in theory, work two to three hours per day, three to four days per week.
100 Dr Bloom was of the opinion that Mr Genc could undertake suitable duties on a graduated basis, initially at nine hours a week, then building up to 20 hours a week, and that he would eventually have the ability to increase to full-time hours. I note that in offering this opinion, Dr Bloom had no apparent regard to Mr Genc’s ability to attend work on a consistent and reliable basis. In circumstances where I accept that Mr Genc suffers constant lower back pain and frequently needs to lie down, I consider Dr Bloom’s optimism in relation to his work capacity to be unrealistic.
101 Mr Genc was asked repeatedly about his capacity to return to numerous jobs, provided the restrictions were consistent with the doctors’ recommendations. Mr Genc consistently stated that he could work one day, but did not believe he could consistently attend on a regular basis. The following is an example of such evidence:
“So when you do not have back spasm, you think you would be able to go back to some form of light work?---No. I can go twice, for example, next week I can do two and a half hours, but I don’t know if I can do it regularly. If I did it next week one day, can I do it the second day or third day? I don’t know.”
102 Having considered all of the evidence, I am satisfied that Mr Genc is capable of performing a maximum of 12 hours per week in suitable employment. I consider that in order for Mr Genc to be a reliable employee, he could not work consecutive days, and could only work a maximum of four hours per shift. This would enable him to work reduced hours and reduced days, such that he would have time to recover between shifts, so as to ensure he could attend on a regular and consistent basis. This finding is consistent with the opinion of Associate Professor Bittar.
103 Mr Genc gave evidence that he would “die to go to work”. He was clearly motivated to be retrained in security work, as he completed that course in 2016. Following completion of the course, rehabilitation provider CAC assisted Mr Genc in applying for security jobs, but he was unsuccessful on the basis that he was considered “inconsistent during the security training.” I am satisfied that this inconsistency was a reflection of Mr Genc’s ongoing lower back pain, his need to lie down at times, and his inability to attend the course on a consistent basis.
104 The defendant relied on the Recovre reports to submit that there were numerous potential jobs which may constitute suitable employment for Mr Genc. For the reasons detailed above, however, I have significant reservations as to the suitability of such employment. If Mr Genc was able to successfully undertake further study on a part-time basis to increase his computer skills, then the jobs of jobs despatch clerk and sales administration would constitute suitable employment options. However, in circumstances where I consider Mr Genc’s maximum work capacity to be 12 hours per week, and based on the remuneration for each of the jobs in the Recovre report, I am satisfied that Mr Genc suffers the requisite 40 per cent loss of earning capacity as a consequence of his lower back injury.
105 I am satisfied that this loss of earning capacity will be permanent.
106 Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for Mr Genc meet the “very considerable” test.[10] Given my acceptance that Mr Genc’s injury restricts him to, at best, only part-time work, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as very considerable.
[10]s134AB(38)(c)
107 As Mr Genc has satisfied me that he suffers a serious injury in respect of his loss of earning capacity arising from his lower back injury, it is not necessary for me to consider separately his pain and suffering consequences.[11]
[11] Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
108 I am therefore satisfied that Mr Genc suffers a serious injury to his lower back, arising as a consequence of his employment with the defendant, and that the consequences are such that he should be granted leave to commence common law proceedings for pain and suffering and loss of earning capacity damages.
109 I will make the consequent orders.
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