Gildea v Dunlop and Pitson Earthmoving Pty Ltd and VWA
[2011] VCC 1203
•20 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BENDIGO
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04846
| JOHN ANDREW GILDEA | Plaintiff |
| v | |
| DUNLOP & PITSON EARTHMOVING PTY LTD | First Defendant |
| (ABN 68 870 969 446) | |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 11 and 12 May 2011 |
| DATE OF JUDGMENT: | 20 May 2011 |
| CASE MAY BE CITED AS: | Gildea v Dunlop & Pitson Earthmoving Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1203 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134AB (16)(b) - application in respect of pain and suffering and economic loss consequences associated with injury to lumbar spine – capacity for alternative employment in issue.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with | Arnold Dallas & McPherson |
| Mr M Schulze | ||
| For the Defendants | Mr A J McG Moulds SC with | Hall & Wilcox |
| Ms S Manova | ||
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering and pecuniary loss consequences of an injury suffered by him to his lumbar spine in the course of his employment with the first defendant.
2 In an affidavit sworn 23 June 2010, the plaintiff deposes that he was born on 16 May 1965 and was educated to the completion of Year 10 at the Werribee Technical College. He said that his working life had generally involved physical labour, driving trucks and driving machinery such as bobcats. He described himself as being, prior to his injury of 25 October 2007, generally fit and healthy. He said he was able to engage in full-time employment in a physically-demanding job and enjoyed other pastimes, including golf, horse riding, riding trail bikes, fishing, camping and gardening. He described taking a great deal of pride in his garden and an ability to maintain his house.
3 He said that on 25 October 2009, in the course of his employment with the first defendant, whilst operating a vacuum hose, he suffered a severe incident of low-back pain; that following the incident, he continued to work with difficulty; but that by 2 November 2009, he was required to cease work because of severe pain present in his low-back. He said that he had consulted his general practitioner, Dr Talitha Barrett, who prescribed anti- inflammatory medication for his use and certified him as being unfit for work; and that he returned to work on 13 November 2009 undertaking modified duties four hours a day, five days per week. The plaintiff said that after a week or so, because of the aggravation of his symptoms of back pain, his hours of work were reduced to four hours of modified duties per day, three days a week; that notwithstanding this reduction in his hours of work he continued to experience exacerbation of his symptoms with associated periods away from work, and that by 7 May 2008, he had accordingly been forced to cease his employment with the first defendant.
4 Having ceased employment with the first defendant, the plaintiff underwent a vocational assessment and also began applying for alternative employment. The plaintiff said that he was successful in obtaining employment as a truck driver for Hayes a transport company owned by Mr Peter Hayes, who employed him pursuant to the WISE Program. In the course of his employment with Mr Hayes, the plaintiff underwent further training, as recommended by Recovre completing a one-day driving course to qualify for driving B-double vehicles and completing a two-day training course for the purpose of obtaining a Dangerous Goods Driver’s Licence.
5 In November 2008, the plaintiff commenced working with Fasso Transport. He said:
“My employment there was a day-to-day proposition, depending on the availability of work. On and from 23 April 2010, I found I could no longer cope with driving duties.”
6 At the time of swearing his affidavit, the plaintiff deposed to the fact that he suffered from –
“… constant pain and stiffness in my lower back. The pain varies in intensity and I have good days and bad days with it. However, it is always there to some degree.
The pain in my lower back continues to radiate into my buttocks and into my legs, still worse on the right side compared to the left. I also suffer from feelings of pins and needles and tingling sensations in my right thigh down to the back of my right knee.
The pain that I suffer is aggravated by activity generally but especially by prolonged periods of standing or prolonged periods of sitting, including driving work. Various movements, such as bending, twisting, lifting and pushing and pulling movements and the like also increase the pain.”
7 In a further affidavit dated 28 March 2011, the plaintiff deposed that he had been unable to work between 23 April 2010 and 16 January 2011, at which time he commenced employment with A & S McKenzie Pty Ltd as a truck driver working sixteen hours per week on the basis of two eight-hour shifts which he undertook on the Monday and Thursday of each week. He said that he was earning $301.12 gross per week and that his work involved him driving a Scania semitrailer either around Bendigo or to Melbourne.
8 The plaintiff said that he had undergone a back care program at the John Lindell Rehabilitation Unit, Anne Caudel Campus, Bendigo Healthcare Group, for a period of nine weeks from 12 October 2010, but that this program had not improved the condition of his back.
9 He said he suffered from constant pain and stiffness in his lower back which was always there and varied slightly with medication and that his current regime of medication involved Tramadol tablets, two tablets of 200 milligrams morning and night, and Panadol Osteo, six tablets per day. He said that the pain in his lower back radiated into his right buttock only and down his right leg to behind his knee and that he suffered from occasional symptoms of pins and needles and a tingling sensation in his right leg; that his pain was aggravated by activities such as bending, sitting, standing for prolonged periods, twisting, lifting, packing and pulling; that he had difficulty sleeping and would regularly wake with lower back pain, and that his symptoms deprived him of the ability to play golf, to go horse riding and to go trail bike riding. He concluded his affidavit with the following statement:
“I remain very concerned about my capacity to obtain and or maintain work for full-time hours. I struggle in my present employment. The driving causes back pain. Getting in and out of the back of the truck causes back pain.”
The Plaintiff’s Viva Voce Evidence
10 In the course of cross-examination, the plaintiff gave the following evidence:
•
Following his accident, having returned to work with the first defendant, he had been unable to continue in that work from May 2008 even on a reduced hour basis.
•
Having consulted with Mr Ron Wilkinson (of Recovre) to seek a vocational assessment, the plaintiff decided to return to truck driving work as –
“I had driven trucks for many years; I thought I just keep going with it”.
(sic)
He said that it was his opinion at that stage that he would be able to do that work on a full-time basis as a truck driver and that, on obtaining employment with Hayes Transport, he returned to work on a full-time basis for about six months when the work ran out because the grain season came to an end. The plaintiff agreed that when working for Hayes, there were occasions when he worked extremely long hours, such as forty-eight hours or more, and that his work involved him in driving a grain truck all over Victoria. He said that the work did not involve any significant lifting and that he had been able to cope with the work.
• The plaintiff accepted that during the course of his working life he had obtained a number of qualifications, including a qualification enabling him to work in confined spaces; a B-double driver’s licence; a traffic control and traffic management certificate; a gas welding certificate; an asbestos B class removalist qualification; a first aid qualification in cardiopulmonary resuscitation; a qualification in trench and excavation shoring; and qualifications in occupational health and safety for construction work. • The plaintiff agreed that he had, in 2008, wished to pursue employment as a youth worker in the justice system. He said however that he no longer had an interest in youth work because – “I couldn’t get into it. I tried twice to get into it and I didn’t get any further. … I applied online for prison work and justice work. I did a phone interview. I went into the city and did a big test where there was, you know, 400 or 500 questions, and I got a phone call back on that time saying that I was unsuccessful. Then it came up again. I think it might have been twelve months later, and I got as far as the phone interview and dropped out there.”
COUNSEL:
Q: “Did they tell you you’d failed the test or that you were
unsuccessful in your application?---A: Unsuccessful. Q: So were these applications for a course in youth work or for
a job in youth work?---A: For a job in youth work, for prison work. Q: Mr Wilkinson spoke to you about a certificate for youth worker vocational re-education, did you make any enquiry or did anyone make any enquires on your behalf about a Certificate IV in Youth Work, for qualifications?--- A: He did look into it. I don’t remember what came of it. … Q: Is there any reason why you couldn’t go back and try again
as a youth worker?---A: I’ve been told by people that I wouldn’t have the strength to
do it.”
When the description of some of the duties involved in employment as a youth worker appearing at page 10 of the Defendants’ Court Book were put to the plaintiff however, he agreed that there was no reason why he would not be able to perform those duties.
•
The plaintiff agreed that during the first half of 2009, he was able to work long hours in the course of his employment with Fasso and that he had been able to manage those duties without significant difficulty and without the need to take pain-relieving medication up until July 2009 when the hours which he was working dropped from hours in the vicinity of fifty hours a week to fourteen hours a week. He said that this change in his employment pattern came about by reason of the fact that “I hurt my back”. (It is not in issue in this proceeding that the incident so described by the plaintiff and his resultant disability is causally related to the incident and injury the subject of this application.)
11 The plaintiff was asked whether he would be capable of working more than sixteen hours in a week if his present work regime was altered so that he was not required to work two eight-hour shifts but could work shorter shifts of five or six hours. The plaintiff accepted that this may be a possibility. He said however, that even if his work was re-structured so that he was only working five or six hours in a shift, he did not believe that he would be able to work for up to twenty-five or thirty hours a week. He accepted however, that the longer he sat, the worse his symptoms became.
12 The plaintiff said that he continued working with Fasso Transport on the basis of two eight-hour shifts per week until he further aggravated his back. That following this aggravation, he was absent from work for a significant period of time (the plaintiff was here referring to the period deposed to in his affidavit namely 23 April 2010 and 16 January 2011) and that he subsequently, obtained employment with his present employer, McKenzie.
13 The plaintiff said that he would be unable to perform work which required him to sit for five or six hours, and that at the present time:
“I’m doing an hour; I’m in and out of the truck every hour.”
14 The plaintiff said that he owned a Harley-Davidson which he had purchased in April 2009; that riding this motorcycle was the only recreational activity in which he now engaged and that he was able to ride for between half-an-hour to one-and-a-half hours “in one hit”. He described his motorcycle as being “a cruising bike” and said whilst he continued to own a trail bike, he had not ridden it since his injury.
15 The plaintiff agreed that his reading, writing and numeracy skills were good; that he regarded himself as having good communication skills and customer service experience; that he had basic computer skills and possessed the
16 The plaintiff said that he would not be able to undertake light delivery work as he had problems getting in and out of a vehicle, but that he would be able to assist in loading goods for delivery if they were light and in the vicinity of 5 kilograms. He said that he would be unable to work as a service station attendant because he would be unable to stand or sit behind the counter all day or replace tyres on a vehicle. He agreed he had the skills to work as a debt collector, but said that he would not be able to perform that work if it involved him sitting at a desk on a telephone for long periods. He agreed that he would be able to read water meters, parking meters and gas meters. He said that once he was in a truck, whether it was a B-double or some other vehicle, it made little difference. He agreed that he could work as a store person, depending on the size and nature of the goods involved.
17 In re-examination, the plaintiff said:
•
That he was able to only walk for half-an-hour at a time without exacerbating his pain;
•
That he had tried but failed to work sequential days but the result had been that;
“It hurt like hell”
•
That he did not believe that he had the capacity to work sequential days as after a day’s work he felt exhausted on the days following a day upon which he worked, he did very little at home. He said that in his present driving work he drove for no more than an hour, at which time he was required to get out of the truck and stretch and walk around every hour commenting :
“… you know, I’ll be there for five minutes, yes, just try and relax a
bit.”
Q: “At the end of the day, what effect does that activity upon your level of pain, that is by the end of the day, is your pain affected by doing your day’s work?--- A: It is. Q: You have told us that you have difficulty doing sequential days. My learned friend was asking you, rather than doing two by eight, if you did four by five, so two sequential days of five, a day off, and two sequential days of five, how do you feel you would cope with that?--- A: I don’t think I would. Q: Are you aware of any truck driving job where it is available
for five hours a day?---A: No.”
18 The plaintiff was asked whether, if he was required whilst driving a document exchange vehicle to lift boxes containing folders, would he have the capacity to do that work, to which he responded:
“I don’t think so.”
19 He said that the reason why his hours had reduced from full-time hours whilst driving for Fasso to working fourteen to sixteen hours a week was because:
“I couldn’t do the full-time work after hurting my back.”
20 He said that during the forty-two weeks between July 2009 and April 2010, whilst driving for Fasso, he had earned approximately $240 per week and that the condition of his back was responsible for his limited earnings during this period.
The Medical Evidence
21 There is no issue in this case that the plaintiff has suffered a disc derangement at the L5-S1 level in the form of a right L5-S1 disc protrusion, resulting in mild impingement of the L5 nerve root. (See the MRI report of 11 May 2010 at PCB 110; the report of Mr Peter Battlay, and particularly his comments at PCB 101; the report of Dr Chris Baker and particularly his comments at PCB 96, and the report of Mr Kevin King, and particularly his comments at PCB 67.)
22 The evidence relevant to the plaintiff’s capacity for work is contained in the following medical opinions.
23 Dr Talitha Barrett, the plaintiff’s general practitioner, has provided a number of medical reports, many of which take the form of referral letters to other doctors.
24 On 11 March 2008, Dr Barrett commented that the plaintiff was “now fit for youth work”.
25 On 24 November 2009, Dr Barrett commented:
“Andrew has been taking Panadol Osteo regularly for the pain which helps take the edge off his pain (sic). He does have pain every day. Andrew works as a truck driver sometimes results (sic) in prolonged working days and these do result in aggravation of his back pain. If truck driving were only an eight-hour day he could do more than sixteen hours a week.”
26 This latter statement by Dr Barrett makes little sense, having regard to the fact that the plaintiff’s driving duties at the time at which Dr Barrett authored this report involved driving only for eight hours a day and the plaintiff was being provided with medical certificates limiting his driving to sixteen hours per week: (see, for example, the Certificate of Incapacity issued by Dr Patrick Duane for the period 24 November 2009 to 22 December 2009 at PCB 142).
27 On 23 September 2010, Dr Barrett opined that as at that time, the plaintiff had no capacity for work as his back was sore every day but that in the long-term he would have the capacity for work which was light and varied without prolonged sitting.
28 In a further report dated 10 February 2011, Dr Barrett commented that:
• the plaintiff had not worked between 11 May 2010 and mid-January 2011, at which time he returned to work as a driver, working eight hours a day with two days off and then a second eight-hour day; • that he continued to take regular Tramadol, 200 milligrams twice daily for pain, and Panadol Osteo six times a day, and that he continued to wake at night with pain, and opined that his injury had stabilised; • that he had a capacity for work which was light and varied; • that he had no capacity for work involving heavy lifting or repetitive bending or full-time sitting. 29 In a report dated 25 may 2010, Mr Kevin King, orthopaedic surgeon, expressed the opinion that the plaintiff was permanently unfit to return to heavy, full-time unrestricted work and that:
“… hopefully this recent flare-up will settle down again, in which case he
may get back to part-time truck driving work.”
30 In a report dated 10 November 2010, Dr David Murphy, a consultant physician in rehabilitation medicine, opined that the plaintiff’s rehabilitation was continuing; that the plaintiff had an incapacity for work, such that he should not lift more than 5 kilograms, bend or twist on a repetitive basis, be expected to walk up and down steps repetitively or be exposed to repeated jolting to the lumbar spine.
31 In a further report dated 11 February 2011, Dr Murphy commented that the plaintiff had completed a “back strong” program at Bendigo Health and that he was fit to resume work as a transport driver and undertake work which involved “runs of less than an hour at a time and that he avoids any lifting, twisting or bending at all”.
32 Dr Chris Baker, a specialist in occupational medicine, has examined the plaintiff on a number of occasions on behalf of the defendants. In a report dated 19 February 2010, Dr Baker opined that the plaintiff presented with a symptomatic disc at the L5-S1 level with right-sided leg symptoms in the absence of the evidence of radiculopathy. Having regard to the plaintiff’s statement to him that “he found that walking and moving about was better for him and helped his symptoms”, Dr Baker opined that work such as a meter reader or a parking infringement officer would be suitable for the plaintiff, that he may be fit for work as a service station attendant but would not be fit for that work if it involved manually demanding activities such as changing batteries, and moving tyres. He said that the activity of a debt collector could be within the plaintiff’s physical capabilities; that he was fit for work as a meter reader and that working as a store person he “would be working within restrictions”. He strongly disagreed with an opinion previously expressed by Dr Barrett that the plaintiff would be capable of working full-time as a truck driver and opined that the plaintiff was not fit for work as a light delivery driver nor for work as a prison officer
33 In a report dated 24 August 2010, Mr Clive Jones, orthopaedic surgeon, diagnosed the plaintiff as presenting with discogenic back pain of a moderate degree with ongoing symptoms affecting both his back and right leg, and opined that the plaintiff’s incapacity for heavy work would persist for the foreseeable future; that the plaintiff was not incapacitated for all employment and that employment in youth work or in a justice system which would require some re-training “would be a definite possibility”.
Finding as to the Plaintiff’s Current Capacity for Work
34 The evidence given by the plaintiff as to his tolerance for standing and sitting and capacity for full-time work is to some extent inconsistent with the general tenor of the medical opinions which have been expressed in the case.
35 The plaintiff struck me as a truthful and dependable witness. There is no suggestion in any of the medical reports that he was inclined to embellish or overstate his symptoms. His return to work following his injury and his pattern of employment up until July 2009, which involved him working extremely long hours when work was available to him, is consistent with the existence of an attitude in which rehabilitation and the minimisation of the effect of the injury upon earnings and earning capacity was at the forefront of the plaintiff’s mind. The fact that the plaintiff underwent vocational assessment; accepted the advice that he was given in the course of that process that he should obtain a B-double licence; and the fact that the plaintiff himself found employment at the conclusion of the rehabilitation process is also consistent with the presence of that attitude, as is the plaintiff’s return to employment following having suffered what Mr King describes as a flare up of his symptoms which incapacitated him between April 2010 and January 2011.
36 The fact that the plaintiff makes use of very significant quantities of prescription-strength medication in the form of Tramal and Panadol Osteo on a daily basis is consistent with the presence of significant levels of pain. I note that Mr King, on each occasion upon which he assessed the plaintiff, commented that it was his impression that the plaintiff had a high pain threshold. I accept Mr King’s opinion in this regard.
37 Generally it would seem that the medical practitioners who have opined as to the plaintiff’s capacity for work have done so on the basis of their acceptance of the history given to them by the plaintiff as to the severity of his symptoms. No medical practitioner has suggested that the plaintiff was not a good judge of the level of his symptoms or his capacity for activity, and generally medical opinions as to the plaintiff’s capacity to work have been expressed by the medical witnesses on the basis of their acceptance of the plaintiff’s history as to his symptoms and capacity for activity.
38 Whilst medical opinion has not been presented specifically in support of the evidence given by the plaintiff as to his incapacity for work other than on alternate days, or as to his poor tolerance for sitting and standing; it was my very strong impression that the plaintiff gave an accurate account of the level of his pain and his ability to accommodate activity in the presence of that pain. In the circumstances I am satisfied that I should approach the question as to the plaintiff’s retained capacity for employment on the basis of the evidence given by him as to his tolerance for sitting, standing, general activity, and specifically as to his capacity for work only on alternate days. In making this finding, I do so on the basis:
(i) that I accept the plaintiff’s evidence that he presently has a capacity only to work on alternate days; and (ii) that I am satisfied that, whilst it is possible that this capacity may be marginally increased were the plaintiff to discontinue driving and undertake employment which gave him a greater opportunity to alternate between standing and sitting as required; I consider it to be likely that even in those circumstances the plaintiff’s capacity for employment would be limited to working for probably two, but perhaps three, days a week given the now established pattern of the plaintiff’s symptoms. 39 I am satisfied that any inconsistency which exists between the plaintiff’s evidence as to his capacity to work only on alternate days and the medical evidence which is relied upon by the parties as to this issue is most probably explained by the fact that the bulk of the medical opinions in the matter were provided prior to the plaintiff’s return to work after his injury related absence between April 2010 and January 2011. Whilst the reports of Dr Barrett and Mr Murphy do not fall into this category, these reports were prepared only four or so weeks after the plaintiff’s return to work at a time when I am of the opinion that it is unlikely that the picture as to his long term tolerance for work had yet emerged given his need to develop appropriate work conditioning after his long absence from employment.
40 Further, whilst there may well be an inconsistency between the most recent certificate for capacity for work which was provided by the plaintiff’s general practitioner, Dr Duane, which appear to limit the plaintiff’s part time work restriction to driving duties; given that this certificate merely follows the pattern established over a substantial period by Dr Barrett whose competence in assessing capacity for work is questionable in my opinion having regard to:
• Her nonsensical statement as to the plaintiff’s capacity for driving work in her report of 24 November 2009; • The fact she had previously accepted the employment activities identified by Mr Carter as being appropriate for the plaintiff; some of which such as service station attendant and delivery driver and prison officer were clearly beyond his capacity, (see the opinions of Dr Murphy and Dr Carter who have specialist qualifications in the relevant area and which I accept); I do not find the presence of any such inconsistency to be of great relevance.
41 Approaching the analysis of the evidence on that basis, it is clear that the plaintiff’s capacity for employment as a truck driver is extremely limited. This is, in my opinion, proven by his inability to work consecutive days and is consistent with the medical certificates which are presently being provided by his general practitioner which limit his driving activity to sixteen hours per week. It is also consistent with the opinion of Dr Murphy, who opined that the plaintiff should only undertake driving duties for short periods.[1]
[1] The example given by Dr Murphy being runs of less than one hour at a time.
42 It is put on behalf of the defendants that the plaintiff has a capacity for alternative employment as identified in the vocational assessment reports of Mr Ron Wilkinson dated 20 May 2008 and Mr Brendon Carter dated 12 February 2010. Neither report in my opinion can be given much weight as both were generated prior as the result of assessments of the plaintiff which relied on medical reports, the most recent of which was 22 December 2009 and accordingly take no account of the exacerbation of the plaintiff’s symptoms in April 2004; the extent of his recovery from that exacerbation or his present tolerance for sitting or standing.
43 Mr Wilkinson’s report was provided even before the deterioration in the plaintiff’s condition which occurred in mid-2009, and to that extent is completely irrelevant insofar as it made recommendations as to work which involved physical activity as in making those recommendations, Mr Wilkinson was clearly not cognisant of the present restrictions imposed upon the plaintiff’s capacity for physical activity by Dr Murphy and Dr Baker.
44 It is put on behalf of the defendants that the occupation of “Youth Worker” as identified by Mr Wilkinson in his report, is an activity which the plaintiff would be presently fit and capable of undertaking. The description however by Mr Wilkinson of the activities involved in the occupation of Youth Worker is of a general nature only and provides no detail as to whether the work would require activities such as sitting for long periods of time or standing for long periods of time. It would seem to me however; considering the activities listed by Mr Wilkinson at DCB 10 as being included in that occupation that it would be likely to do so.
45 It was recommended that the plaintiff complete a Certificate IV in Youth Work “in order to enhance his employment options in this area”. Having regard to the evidence given by the plaintiff as to his two attempts to obtain employment in this field, the recommendation by Mr Wilkinson that the plaintiff undertake a Certificate IV in Youth Work, and the activities described by him as being involved in the occupation of youth worker would suggest that the possession of a Certificate IV would be essential for employment in this field; whether the plaintiff has the capacity to obtain such a qualification is, in my opinion, extremely doubtful given his limited secondary education and his history of unskilled work. (In making this finding I take into account the various certificates obtained by the plaintiff – exhibit D2 - which in my opinion given their nature provide no evidence one way or the other as to the plaintiff’s capacity as a student.)
46 I am satisfied that the plaintiff is unlikely to have the capacity for work as a Youth Worker, when one takes into account his tolerance for activity, his history of employment in unskilled work and his relatively limited education levels (the plaintiff having only attained his Year 10) and that employment as a Youth Worker does not constitute “suitable employment” for the plaintiff, having regard to the definition of that term as employed by the Act.
47 As to the vocational assessment of Mr Brendon Carter, I note that Dr Baker opines that the employment options identified in that assessment of delivery officer and prison officer not constitute appropriate employment for the plaintiff even as at February 2010. I interpret Mr Baker’s opinion at that time as being that he would also regard employment as a service station attendant as constituting inappropriate employment, having regard to the opinion expressed by Mr Baker that the plaintiff would be incapable of undertaking tasks such as changing batteries and moving tyres, and tasks of this nature (replacing tyres), are specifically mentioned by Mr Carter in his job description of this activity. (I have previously commented that insofar as Dr Barrett accepted the employment activities identified by Mr Carter as being appropriate for the plaintiff, I prefer the opinion of Dr Carter who is a specialist in rehabilitation evidence on this issue.)
48 When the combined opinions of Mr Baker expressed in February 2010 and Mr Murphy expressed in February 2011 are considered in the context of the
49 As to the activity of debt collector identified by Mr Carter, I interpret the job description associated with that activity as being likely to require substantial telephone and desk work and I consider it likely, having regard to the plaintiff’s reduced sitting and standing tolerances, that the plaintiff would be able to accommodate the duties involved in that occupation only on the basis of a similar pattern of reduced hours to that which pertains to his current employment.
50 I am satisfied, given:
• The period which has elapsed since the deterioration in the plaintiff’s condition in mid-2009 and his pattern of symptoms and employment thereafter; • The opinion of Dr David Murphy as at 11 February 2011 that the plaintiff’s injury is now stable (which opinion is consistent with that expressed by Mr Baker in February 2010), that the plaintiff’s capacity for employment has stabilised at its present level subject to the possibility of the plaintiff experiencing exacerbations of his condition which will render him unfit for any duties as was his experience during 2010.
51 It is accepted by the parties that, if I am satisfied that the plaintiff is not fit to engage in employment in which he derives an income of greater than $728 per week, the plaintiff has established that the incapacity associated with his injury meets the statutory threshold as set out by the Act.
52 Having made the findings to which I have previously referred as to the plaintiff’s tolerance for sitting and standing and his capacity to engage in activity which might involve him in sustained periods of sitting or standing in the absence of an ability to control his symptoms by interspersing rest days between working days, it is clear that employment as a debt collector would not generate for him an income of greater than $728 per week were the plaintiff’s hours of work limited to between16 and 24 hours per week.
53 Given that this would invariably require the plaintiff to adopt a pattern of work which involved consecutive days of employment, which pattern I am satisfied has been established is likely to be permanently beyond his capacity, I am satisfied that the plaintiff has established that his injury will cause him to suffer an economic loss which meets the criteria established by s.134AB(38)(f) of the Act and that it is unlikely that any vocational, rehabilitation or retraining will alter that position.
54 It follows that the plaintiff has established that, by reason of the impairment in the function of his low back, he has sustained a loss of earning capacity, the consequences of which are, when judged by a comparison with other cases in the range of possible impairments, fairly described as being more than “significant” or “marked” and as being at least “very considerable”; and that he has established that the loss of earning capacity associated with his injury meets the requirements of the Act.
55 In the circumstances, I am satisfied that the plaintiff is entitled to the orders sought in this application, namely leave to commence a proceeding claiming damages for both the pain and suffering consequences and the loss of earning capacity consequences of the injury sustained by him the subject of this application.
56 I will hear the parties as to the precise form of the order which is sought and also upon the issue of costs.
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