Grant v Allstates Vehicle Logistics Pty Ltd
[2021] VCC 586
•14 May 2021
| IN THE COUNTY COURT OF VICTORIA AT WODONGA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-04057
| MALCOLM GRANT | Plaintiff |
| v | |
| ALLSTATES VEHICLE LOGISTICS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 15 February 2021 | |
DATE OF JUDGMENT: | 14 May 2021 | |
CASE MAY BE CITED AS: | Grant v Allstates Vehicle Logistics Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 586 | |
REASONS FOR JUDGMENT
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Subject:Accident compensation
Catchwords: Serious injury; ankle injury; residual capacity; suitable
employmentLegislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Richter v Driscoll [2016] VSCA 142
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Morrow with Ms F. Crock | Nevin Lenne Gross |
| For the Defendant | Mr M. Clarke | Lander & Rogers |
HIS HONOUR:
Introduction
1The plaintiff, Malcolm Grant, was employed by Allstates Vehicle Logistics Pty Ltd (“the employer”) as a truck driver. On 6 February 2018 he suffered injury in the course of his employment when packs of steel pipes were being unloaded from the tray of his truck. This incident occurred at a farm property at Brown’s Plains near Wodonga. He suffered a fracture to his right ankle in this incident and now seeks leave of the court to claim damages on the basis that he has suffered a serious injury as defined in s 325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). He relies on paragraph (a) of the serious injury definition in s 325(1) of the Act and identifies the right lower leg as the body function relevantly lost or impaired.
2Mr Grant has undergone multiple surgical procedures and unarguably suffers from some degree of loss of use of the right lower limb. At the date when his application was heard he was 60 years of age, having been born on 2 April 2960. His original trade was that of a boiler maker and welder, although he had worked for a number of years as a project supervisor and a site surveillance officer prior to commencing work with the employer as a crane vehicle driver in late 2016. Mr Grant and his wife had lived on a 20 acre farm at Sandy Creek, approximately 30 minutes’ drive from Wodonga since 2013.
3There was no argument advanced by Mr Clarke, who appeared on behalf of the defendant, that the consequences of Mr Grant’s injuries entitled him to leave in respect of pain and suffering, but his application relating to pecuniary loss damages was opposed on the basis that he retained a capacity for suitable employment to an extent that would preclude the court granting leave.
4Mr Grant was the only witness call in the hearing. The evidence relied upon by both parties was otherwise tendered in the form of medical and other reports.
The evidence
5Mr Grant had sworn two affidavits in support of his application on 20 April 2020 and 20 February 2021.[1]
[1]Exhibit A - Joint Court Book (“JCB”) pp 34-47
6In his first affidavit Mr Grant described his pre-injury circumstances, including the type of work he was performing, which involved driving large trucks transporting loads, including fencing pipes:
“… which were heavy, long and awkward to unload.”[2]
[2]Exhibit A, JCB 37 [14]
7Mr Grant described his initial treatment at the Wodonga Hospital where he was under the care of Mr Jeremy Kolt, orthopaedic surgeon. The affidavit described his protracted course of treatment which was complicated by the development of infection.
8Mr Grant’s first affidavit went on to describe an unsuccessful return to work in August 2018 and further surgery involving a fusion of the ankle performed in November 2018.[3] He also described his ongoing difficulties following the fusional surgery and a subsequent referral to Dr Queenie Chan, a plastic surgeon. At the time of the first affidavit he had been diagnosed as having a staph infection and was prescribed antibiotics. His treatment was ongoing at that time.
[3]Exhibit A, JCB p 40 [27] to [28]
9Mr Grant’s first affidavit set out the restrictions impacting on his general recreational activities and described what was sadly an unsuccessful attempt to return to work with a trailer company, Perfect Trailers, in Albury.[4]
[4]Exhibit A, JCB pp 42 [35] to 43 [37]
10In his more recent affidavit Mr Grant described the ongoing treatment relating to his ankle which had involved a further surgical procedure in June 2020.[5]
[5]Exhibit A, JCB pp 44 [3] to 45 [5]
11Mr Grant’s affidavit went on to describe performing activities on his farm, which were impacted by his ankle injury.[6]
[6]Exhibit A, JCB pp 45 [7] to 47 [12]
12His second affidavit concluded that he did not believe he could regularly perform work involving manual activities and had no confidence or capacity to perform office-type duties following his unsuccessful trial of a job in administration with the trailer company in Albury.[7]
[7]Exhibit A, JCB p 47 [13] to [14]
13When cross-examined I noted the following matters as relevant to the issues in dispute:-
· Mr Grant would do some maintenance type work on the property:
“Fencing, collection of wood, mowing for hay in the right season …”[8]
[8]Transcript (“T”) 17, Line (“L”) 7
· He was also assisting to replace an old shed with the help of other people.[9]
[9]T 17, L 4-31
· Mr Grant would rarely do any welding or fabrication these days, “it’s only when required.”[10]
· In relation to his work with Aurecon as a site surveillance officer, he described the work as compliance checking for capital works projects. It was work which required using a computer:
“They have pro formas so that we just pretty much the work was repetitive so you’d just bring up the document and just, if the work wasn’t being done, you’d just highlight it out and you know, it was pretty basic. Yeah, we took a lot of photos and uploaded them into the system.”[11]
· His work at Agfab Engineering required Mr Grant to manage a team of four or five other workers:
“I had a group of guys that I just supervised. I was hands-on, as well.”[12]
· Mr Grant had not consistently worked since suffering his injury. He had been involved with a vocational provider for about a year and a half which helped him develop a resume and skills to assist him to return to work.[13]
· Mr Grant explained in cross-examination that some roles would be difficult for him as he had trouble with reading and spelling.[14]
· Mr Grant agreed that his literacy skills would not preclude him from physical work, but he believed in other roles he would have trouble. In discussions with Nabenet he stated:
“I said from the outset with them that I had reading and spelling difficulties.”[15]
· He had left Aurecon as he and his wife had intended to move to the Sandy Creek property.[16]
[10]T 18, L 3-7
[11]T 18, L 8 to T 19, L 19
[12]T 19, L 20-30
[13]T 21, L 11 to T 22, L 9
[14]T 22, L 10-26
[15]T 23, L 23 to T 24, L 7
[16]T 24, L 8-10
14In cross-examination Mr Grant was specifically directed to jobs as trade sales assistant, quality controller, occupational health and safety adviser, despatch and receiving clerk and security gate attendant. He had considered the security gate position, but discovered that it involved a lot of walking.[17]
[17]T 25, L 3-19
· He agreed he had applied for a job at Bunnings, “back before the COVID.” He believed at the time he could do the job, but stated that there’d be a lot of walking, bending and twisting and he would find it difficult working long hours.[18]
[18]T 26, L 4-29
· Mr Grant stated in cross‑examination that he could comfortably stand or walk on the ankle for about an hour:
“ it generally gets very – starts to get very sore, I get a lot of pain, so I have to - to sit down.[19]
[19]T 27, L 18-20
· Generally the work on the farm would take somewhere between 20 minutes to an hour:
“… it generally doesn’t get much more than an hour and I have to sit down for – until the pain goes away and then it allows me to – to go back out and work until it stops me again.”[20]
[20]T 27, L 14-29
· Mr Grant agreed that a recent medical certificate placed lifting restrictions of 15 to 20 kilograms and a standing restriction of 60 to 120 minutes, or walking for up to a kilometre.[21]
[21]T 28, L 11-22
· Mr Grant did not believe those restrictions were realistic.[22]
[22]T 29, L 10 to T 30, L 3
· Mr Grant agreed that if he found a sedentary role there was no reason he couldn’t do it on a full-time basis.[23]
[23]T 30, L 7-10
· In his attempt to work at the trailer company he lasted two weeks and had difficulty cold-calling people and talking on the phone. He agreed that the ankle did not stop him from performing that role.[24]
[24]T 31, L 1-20
· Mr Grant agreed that he did have a limited work capacity and that he was not incapable of doing work. He applied for a job as a service station attendant but was unsuccessful. He believed that job also involved stocking shelves and attending to the pumps.[25]
[25]T 32, L 13-29
· Mr Grant was taken to a vocational assessment report prepared in October 2019 noting that his reading and writing abilities and numeracy skills were said to be at an average level.[26] Mr Grant disagreed with this:
[26]Exhibit 2, Defendant’s Additional Court Book (“DACB”) pp 19-31 at p 22
“… I’m positive I said it was below - below average.”[27]
[27]T 37, L 3-10
· Mr Grant agreed he had a smart phone and a desktop computer and could navigate Google, Facebook and YouTube. In relation to Microsoft Word and Microsoft Excel, he stated:
“I have some limited ability, but yes.”[28]
[28]T 37, L 29
· He agreed he did not play computer games and had stated to the vocational assessor that those skills were below average. He did not believe he had reported having intermediate skills.[29]
[29]T 38, L 4-14 & Exhibit 2, DACB pp 22-23
· When cross-examined about medical histories he agreed that with general maintenance on the farm he would have the capacity to do two to three hours of general farm or maintenance work on the property without breaks. He denied that he would do, on some days, a full day of maintenance work:
“Some days I can’t do it because of the leg’s quite painful so I just sit down and rest for a couple of days and – so I can get active again.”[30]
[30]T 38, L 15-29
· He did not believe he could do an occupational health and safety adviser role in a trade setting:
“… that requires a ticket … so you have to do a course (to) being an OH&S Officer or adviser. I’m not sure whether it’s Ticket 2 or Ticket 4.”[31]
[31]T 39, L 29 to T 40, L 1
· Mr Grant had “tickets”:
“I mean in welding and crane truck and forklifts and such.”[32]
· When further cross-examined concerning the occupational health and safety adviser position Mr Grant believed that role would require a lot of walking around sites:
“It’s not all office-based work, it’s – you have to get out on sites and check, you know, if the site is safe and people working safely…”[33]
· When asked about a role as a dispatch and receiving clerk, Mr Grant believed there would be a lot of walking and there might be some lifting involved, depending on the role. He believed it was difficult to find a job in a rural area that would be suitable.[34]
· Mr Grant agreed that it was not clear cut to say that he could definitely do or not do a particular job without trying it. He also agreed with the proposition that his doctors had been certifying him for suitable employment since September 2020, but he had not discussed any issues of literacy with them:
“I generally hide it for as long – as much as I can.
…
I’ve had this problem for – for years and years and years … that’s why I went down the path of being – working with my hands ‘cause I just didn’t have the skills – or confidence with the skills of – with literacy. So that’s – that’s why I’ve always been a - a physical worker.”[35]
[32]T 39, L 26 to T 40, L 4
[33]T 41, L 24-30
[34]T 42, L 15-27
[35]T 43, L 7 to T 44, L 2
· Finally Mr Grant accepted the proposition that there would be some work he could perhaps do.[36]
[36]T 44, L 22-27
15When re-examined Mr Grant was asked of his knowledge of the role of occupational health and safety adviser. He stated that he had seen people doing it and did not describe it as a sedentary office-based job.[37]
[37]T 45, L 10-15
16He gave further evidence of difficulties with his literacy when in past positions with Aurecon and Agfab.[38]
[38]T 45, L 25 to T 46, L 1
17Mr Grant agreed that his post accident employment with the trailer company was a sedentary job, but he had difficulty, particularly by experiencing mental blanks while talking on the phone:
“I just – just – the mind just goes blank basically.”[39]
[39]T 46, L 19 to T 47, L 30
18Mr Grant gave further evidence about his difficulties in walking and needing to take breaks. He stated that his realistic walking distance was less than a kilometre. He would struggle walking much shorter distances:
“I struggle walking to my front gate because it’s on a slope … It’s about 50 metres, Your Honour. It’s, um, on a, probably one and a half in 10 slope.”[40]
[40]T 48, L 4-28
19He also described difficulties with work boots or other closed footwear aggravating his injury.[41]
[41]T 49, L 30 to T 50, L 9
The medical evidence
20There was no dispute that Mr Grant had suffered an interarticular fracture of the right ankle in the workplace incident occurring on 6 February 2018.
21He came under the care of Mr Jeremy Kolt, orthopaedic surgeon, who initially operated to internally repair the fracture and remove loose cartilage fragments from the ankle joint. Three months later Mr Grant developed wound infection and underwent two further surgical procedures to remove the internal fixation and debride the wound. Unfortunately x-rays taken in late 2018 showed progressive ankle osteoarthritis and Mr Kolt performed an ankle fusion procedure in November 2018.
22Sadly for Mr Grant there were further problems with the ankle requiring yet another surgery to excise a granuloma found on the front of his ankle in February 2020. The wound broke down and he was then referred to Dr Queenie Chan, a plastic and reconstructive surgeon.
23He first saw Dr Chan in April 2020. Fortunately the non-healing wound was successfully treated following further surgical debridement carried out by Dr Chan in June 2020. In her report of 4 June 2021, Dr Chan stated:
“From a soft tissue point of view, my opinion is his last debridement surgery carried out by myself in June 2020 was successful and Malcolm now has a healed wound. He does have ongoing neurapraxia which will leave him with reduced and altered sensation to the anterior ankle. This will affect the footwear he wears and may have a flow-on impact to the type of work he is able to engage in due to workplace OHS guidelines. Repeated friction and pressure against the area in question is not advised for the foreseeable future. However, this does not preclude him from full time employment provided it is within Malcolm’s level of ability and comfort.”[42]
[42]Exhibit A, JCB p 88
24Numerous reports from Mr Kolt were tendered into evidence.[43] In his most recent report Mr Kolt described the extent of Mr Grant’s injury and expressed an opinion that employment opportunities were extremely limited for him:
“I believe employment opportunities are extremely limited for Malcolm in the future as a result of his physical restrictions. Furthermore he has come from a background of physical and manual employment rather than cognitive based tasks. His age of sixty one makes his opportunity for re‑training limited and also living in Sandy Creek at quite a remote location makes his retraining opportunities difficult.
I do not consider Malcolm capable of undertaking suitable employment in the future.
Malcolm’s incapacity for employment will continue for the foreseeable future given the permanent nature of his ankle fusion.”[44]
[43]Exhibit A, JCB pp 61-76
[44]Exhibit A, JCB p 76
25The plaintiff tendered into evidence five reports from a physiotherapist, Louise Humphrey[45] and a single report from another physiotherapist at the same clinic, Julia Rossiter[46], relating to treatment provided to Mr Grant between May and September 2018. This treatment pre-dated the ankle fusion and is of little assistance in the present application. Additionally two reports were provided by a podiatrist, Amanda Taylor, dated 20 March 2019 and 24 June 2019.[47] Once again Ms Taylor’s reports pre-date the treatment provided by Dr Chan following the wound breakdown in early 2020.
[45]Exhibit A, JCB pp 77-83
[46]Exhibit A, JCB pp 84-85
[47]Exhibit A, JCB pp 86-87
26Mr Morrow, who appeared with Ms Crock on behalf of the plaintiff, tendered into evidence report from three occupational physicians, Dr Philip Mutton, Dr Joseph Slesenger and Dr Majid Rahgozar.[48]
[48]Exhibit A, JCB pp 119-149
27Dr Mutton examined Mr Grant at the request of the WorkSafe insurer on 31 January 2020 prior to the recent treatment undertaken by Dr Chan. Dr Mutton noted the fusion procedure stating:
“The ankle is now solid with no movement at all. This has implications for return to work. He will be restricted to primarily sedentary work.”[49]
[49]Exhibit A, JCB p 122
28He believed Mr Grant may be able to return to full pre-injury hours in suitable employment. He regarded a series of suggested employment options as being largely sedentary, although he expressed some concerns with the positions of security gatehouse attendant and possibly trade sales assistant.
29Dr Mutton expressed the following opinion as to work capacity at that stage:
“The barriers relate to the fact that he will need to do sedentary employment only, but not driving.
He needs to protect the ankle. The ankle was quite solidly fused. He has no movement at all. He therefore cannot significantly walk for work purposes and would need to be restricted to no more than two hours standing or walking on an eight-hour working day. He does not have good strength in and does not have ability to manipulate the right lower limb. He would not be able to undertake driving tasks or operate machinery with the right foot. Restrictions will be permanent.”[50]
[50]Exhibit A, JCB p 122
30The reports prepared by Dr Slesenger and Dr Rahgozar post-date the most recent treatment provided by Dr Chan. Dr Slesenger examined Mr Grant on 21 December 2020 and reported to the plaintiff’s solicitors on 8 January 2021. He recorded an extensive history noting the most recent treatment provided by Dr Chan between April and June 2020.[51]
[51]Exhibit A, JCB pp 127-128
31Dr Slesenger noted the ongoing restrictions with Mr Grant’s right ankle and concluded that he had suffered a permanent impairment:
“… in particular, I note his inability to weight bear on the right side, to wear closed shoes, to squat and to climb.”[52]
[52]Exhibit A, JCB p 139
32He was of the opinion that Mr Grant would be unlikely to be able to return to work in a role for which he has suitable training and experience on a consistent and reliable basis.[53] He was not optimistic about the future prognosis expressing a view that there was potential for degeneration in the right knee and the lumbar spine and complicating factors including weight gain and a possible psychological reaction. Quite properly Dr Slesenger did not express an opinion in relation to any psychological issues as these were outside his field of expertise [54]
[53]Exhibit A, JCB p 140
[54]Exhibit A, JCB p 138
33Dr Rahgozar examined Mr Grant on 22 January 2021 at the request of the defendant’s solicitors. He provided a report dated 27 January 2021. He also recorded a detailed history noting the most recent treatment provided by Dr Chan around June 2020.[55]
[55]Exhibit A, JCB p 144
34Dr Rahgozar concluded that Mr Grant had a significantly restricted range of motion of the right ankle, wasting of the calf muscles, inability to squat and some impairment of balance likely related to proprioceptive deficiencies. He was not fit for pre-injury work.[56]
[56]Exhibit A, JCB p 147
35Nevertheless Dr Rahgozar noted that Mr Grant had been able to perform his normal activities of daily life:
“… as well as some activities in his farm, walking on uneven surface, attending to his cattle and operating a ride-on mower. He was able to drive a five-hour journey from his home to this clinic today and reports some capacity for using computers. He does not have cognitive dysfunction and appeared to have age-appropriate vision and hearing. In that sense in my opinion he has capacity for alternative work. Reviewing the attached vocational assessment report to this referral in my opinion Mr Grant has capacity for retraining, job seeking activities and new employment services and working as a trade sales assistant, quality controller, occupational health and safety advisor, despatch and receiving clerk and security gate house attendant.”[57]
[57]Exhibit A, JCB p 147
36Finally, although Dr Rahgozar saw no future surgery as likely, he expressed the view that with exercise and physiotherapy he was likely to experience some improvement in his pain, gait and balance.[58]
[58]Exhibit A, JCB p 148
37Mr Clarke, on behalf of the defendant, tendered into evidence a report from Dr Gary Davison, occupational physician, dated 18 July 2019.[59] Dr Davison’s report was of limited value, as his opinion as to capacity pre-dated the wound infection and the treatment provided by Dr Chan in early 2020. Mr Clarke also tendered the initial worker’s claim form dated 14 February 2018 and the employer’s injury claim report dated 21 February 2018.[60]
[59]Exhibit 1, JCB pp 103-111
[60]Exhibit 1, JCB pp 152-154
38Of far greater significance were the certificates of capacity provided by the general practitioner, Dr Padilla, relating to the periods 2 September 2020 to 21 January 2021.[61] Each of these certificates certified Mr Grant as fit for work with modifications, specifically that his standing was limited to between 60 and 120 minutes, and walking of up to one kilometre. There were various weight restrictions also set out in the certificates effectively limiting Mr Grant to weights in the range of 15 to 20 kilograms.
[61]Exhibit 2, DACB pp 4-16
39Mr Clarke also tendered into evidence a document described as “General Practitioner Standard Report” prepared by Dr Padilla on 15 May 2020.[62]
[62]Exhibit 2, DACB pp 17-18
40The report from Dr Padilla recorded the following comments:
“1.How is your patient progressing post his surgery for excision of soft tissue lump on right ankle, occurred on 4 February 2020?
According with specialist report, his soft tissue lump is improving but still having breakdown of the area. Lump is growing again.
2. Please state whether your patient has a current work capacity? If the worker does not have a current work capacity, what are the medical reasons/evidence to support this view?
He has capacity for suitable employment, his main problem is standing and walking.
3. Based on your physical assessment of worker, what are his functional tolerances for the following activities resulting from the compensable injury?
Sitting – no restriction
Standing – from 10 to 20 min before needing to sit
Walking – with regular rest
Bending – waist down with no kneeling
Lifting – 15 - 20 kg
Driving – non restriction
Pushing – 15 - 20 kilograms
Pulling – 15 - 20 kilograms
4. Please review the vocational assessment completed by Nabenet dated 31/10/2019, and comment on the suitability of each of the employment options contained therein. Please comment on the suitability of each of these options and provide your recommendations for any additional options that may be suitable.
Trade sales assistant – suitable
Quality controller/product examiner – less likely suitable as need to stand and walks frequently
Occupational Health and Safety adviser – suitable
Despatch and relieving clerk – suitable
Security gate house attendant – suitable.”[63]
[63]Exhibit 2, DACB p 17
41Finally Mr Clarke tendered into evidence the vocational assessment report provided by Nabenet on 31 December 2019, which had identified the various positions commented on by Dr Padilla.[64] This report set out an assessment date of 16 October 2019, noting that Mr Grant had attended at the Nabenet’s Wodonga office on that date for assessment. Once again this assessment pre-dated the most recent surgical intervention by Dr Chan.
[64]Exhibit 2, DACB pp 19-31
42In addition to the medical evidence the only other document tendered in the hearing was a schedule of earnings, which noted Mr Grant relevantly earning an annualised figure of $71,831 in the year ending 30 June 2017.[65]
[65]Exhibit A, JCB pp 150-151
Analysis
43The only issue in dispute concerns the extent to which Mr Grant retains a capacity for suitable employment. In final address, Mr Clarke referred to what he described as an overwhelming body of evidence to demonstrate Mr Grant’s capacity.[66] He referred in particular to the evidence of Dr Padilla, who had been certifying Mr Grant as fit for alternative employment since September 2020.
[66]T 60, L 20-30
44Mr Clarke also referred to the vocational assessment prepared in October 2019, which had identified a number of alternative duties and positions that were considered by Dr Padilla as suitable for Mr Grant.
45Mr Clarke referred to the opinions of Dr Davison, Dr Mutton and Dr Rahgozar as also tending to a conclusion that Mr Grant had a capacity for the positions identified in the vocational assessment.
46The submissions on behalf of the defendant also pointed to an absence of direct comparative earning material which would enable the court to make an assessment as required in s 325(2)(e) as to whether Mr Grant has a loss and will continue permanently to have a loss of earning capacity of 40 per cent or more.
47Mr Clarke also made reference to the acceptance in cross-examination that Mr Grant believed he could perform work at Bunnings and had actually obtained employment, albeit for a short time, with Perfect Trailers. Mr Clarke submitted that Mr Grant’s prior work history, including a lengthy career with Aurecon demonstrated that Mr Grant had shown a propensity to learn and develop his skills on the job which again tended to a conclusion that he retained a capacity for suitable employment and therefore the present application should be dismissed.
48Mr Morrow referred to the authority of Richter v Driscoll[67] which he submitted provided authority for the proposition that a concept of a worker having “no current work capacity” required a consideration of the worker’s ability to work in employment, taking into account the entirety of his personal circumstances:
“… these including the injury-caused capacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.”[68]
[67][2016] VSCA 142
[68]Ibid at [95]
49Mr Morrow submitted that in reality Mr Grant had no capacity to work in sedentary type employment. His experiences with the short-term position at Perfect Trailers and his admitted embarrassment concerning his literary deficits which had impeded him at times during his previous employments (particularly with Aurecon) led to a conclusion that he was unsuitable for sedentary employment.
50Mr Morrow was critical of the vocational assessment which had occurred prior to the most recent flare-up of Mr Grant’s ankle condition and the lack of specificity of the duties involved in the identified positions. He submitted that lack of detail should lead to a conclusion that in reality. Mr Grant had retained no real or saleable capacity in a labour market available to him. Such a conclusion was supported by the treating surgeon, Mr Kolt, and essentially by the occupational physicians. Mr Morrow submitted that the certificates from Dr Padilla, whilst certifying a capacity, noted restrictions in walking, crouching, bending and kneeling which effectively precluded Mr Grant from what had been described as “suitable employment.”
51It is well accepted that an applicant for leave bears the onus of proving entitlement in accordance with the statutory requirements relating to a loss of earning capacity. In the present case I assessed Mr Grant as an excellent witness who had demonstrated a strong work ethic and a willingness to seek employment, notwithstanding the protracted course of treatment following his 2018 injury. I concluded that Mr Grant’s admission in cross-examination that he believed there was some work that he could do, was more indicative of his level of motivation rather than his actual capacity.
52The tests to be applied are concisely set out by the Court of Appeal in Richter v Driscoll especially at paragraph 95 to 97. The court there directs that an employer is not required to guarantee the state of the labour market, nor should an inability to work in employment include a situation where an employer will not take on a worker as he has been in receipt of compensation payments:
“… they focus upon an assessment of the inhibitions which exist upon the worker’s ability to work in employment. ‘Employment’ is a relationship in which a prospective employee must have something – a capacity to work in employment – to sell. A prospective employer will not buy if the entirety of the circumstances personal to the worker, as outlined in these reasons, lead the employer to conclude that the worker has nothing to sell.”[69]
[69]Ibid at [97]
53Much of the focus of the defendant’s argument was directed towards the lack of support provided by Dr Padilla, the longstanding general practitioner. In my view such criticism is not warranted. The certificates of capacity completed by Dr Padilla and tendered in evidence note restrictions on Mr Grant’s ability to walk or stand for lengthy periods without the ability to rest. This accords with his own evidence of attempting activities on his farm in recent years. An analysis of the actual activities required in the vocational assessment must lead to a conclusion that without the ability to stand and walk for extended periods, Mr Grant effectively has little if anything to sell to any prospective employer.
54His application for employment at a Bunnings store truly flies in the face of reality. He has a fused ankle and cannot kneel properly. This impacts on his ability to bend and would in my assessment preclude him from any role that would involve him placing or retrieving items from low shelving or storage areas. Additionally his walking and standing tolerance is such that he would need a role essentially of a sedentary nature where he would not be required to be on his feet for periods in the order of one to two hours.
55I accept Mr Grant’s evidence from his own experiences on his farm property that when his ankle symptoms are aggravated in such a way, he must rest for an extended period to allow him to continue.
56Further, insofar as sedentary or office-based work is concerned, his own experience when working for Perfect Trailers highlight the difficulties he would necessarily face due to his poor literacy skills and, frankly, his lack of experience at 60 years of age in actually working in that type of role. The fact that he obtained that short period of employment through a family adds weight to the proposition that absent such a connection he held little appeal for a prospective employer.
57It cannot be overlooked that the very nature of the injury suffered by Mr Grant has led to a protracted course of treatment with a permanent fusion of the ankle joint and repeated episodes of wound breakdown and infection. His inability to wear closed footwear again provides a barrier to him working in any employment other than effectively sedentary or office-based work.
58The medical opinion from the treating surgeon, Mr Kolt, in my view most accurately describes the ongoing level of restrictions and concludes that the employment opportunities for Mr Grant are “extremely limited”.[70]
[70]Exhibit A, JCB pp 75 [4] -76 [7]
59I am satisfied that Mr Grant has established that he has no capacity for suitable employment and such incapacity will continue indefinitely into the future so as to satisfy the statutory requirement for permanency.
Conclusion
60I accept that Mr Grant has satisfied the statutory obligations upon him and should be granted leave to commence proceedings for the recovery of damages on the basis that he has satisfied me on the balance of probabilities that the injury to his right ankle is a serious injury with respect to both pain and suffering and loss of earning capacity.
61I will hear the parties in relation to the formal orders sought and on the question of costs.
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