Grbin v VWA
[2024] VCC 770
•29 May 2024 (ex tempore)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-00094
| Glen Grbin | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | Her Honour Judge Sanger | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2024; 23 and 27 May 2024 | |
DATE OF JUDGMENT: | 29 May 2024 (ex tempore) | |
CASE MAY BE CITED AS: | Grbin v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 770 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – pecuniary loss – credit and reliability – injury to right upper limb – injury to left upper limb – whether capacity for suitable employment – plaintiff living in rural Queensland
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335
Cases Cited:De Bono v Victorian WorkCover Authority [2019] VSCA 85; Weldemichael v ID Sales & Repairs Pty Ltd [2019] VSCA 86; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121; 34 VR 120
Judgment: Leave granted to commence a proceeding for pain and suffering and pecuniary loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Macnab SC with Ms S. Bailey | Zaparas Lawyers |
| For the Defendant | Mr L. Allan | Russell Kennedy Lawyers |
HER HONOUR:
Introduction
1Mr Grbin is a forty-four year old right-hand dominant former woodturner and fitter who has suffered a significant injury to his right elbow and shoulder and to his left elbow. He makes an application for leave to proceed pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 for pain and suffering and pecuniary loss, relying on subparagraph (a) for the definition of serious injury.
2The application was made for impairment to the right upper limb and separately the left upper limb. Though reliance was placed on both, I have only found it necessary to consider the right arm injury and the impairment and the resulting consequences.
3The fact there has been an injury to the right elbow and right shoulder, and that these injuries have arisen in compensable circumstances, was not in dispute.
4The issues to be decided in the case were:
(a) was Mr Grbin's credit in issue?
(b) did Mr Grbin establish, on the balance of probabilities, that the consequences of his right upper limb impairments were explained by an organic in jury?
(c) if yes, were the consequences rom those impairments disentangled from other consequences?
(d) does Mr Grbin have capacity for suitable employment?
5In relation to the last question, the parties conceded that it was binary: that is, he either had a capacity for suitable employment or he did not. This was not a case of a worker having a residual partial capacity for employment calling for examination of whether the worker had an economic loss of 40 per cent or more. It was an all or nothing case.
6The parties agreed that if I found that Mr Grbin was entitled to leave based on pecuniary loss, he would also be entitled to be granted leave to proceed with respect to pain and suffering.
7I have considered the affidavits and viva voce evidence of Mr Grbin, the evidence tendered at the hearing and the submissions of counsel in arriving at my decision today. While I do not propose to refer to all the evidence in providing my reasons, I shall refer to it to the extent necessary to explain my reasons.
8For the reasons set out, I find that by reason of the injury to the right upper limb, Mr Grbin has lost the capacity to work in suitable employment. I will make determinations for leave to proceed for both loss of earning capacity and pain and suffering.
Mr Grbin’s background and history of the injury
9The plaintiff's background and history of injury. No issue was taken with the background of Mr Grbin nor his history of injury. His background is set out in his two affidavits.[1]
[1] Mr Grbin’s first affidavit, affirmed 25 August 2022, Plaintiff’s Further Amended Court Book (“PFACB”)
7–8 at paragraphs [3]–[9]; Mr Grbin’s further affidavit, affirmed 29 April 2024, PFACB 18 at paragraphs [1]–[5]
10In July 2013, Mr Grbin commenced working with the employer, initially as a general labourer but progressed to working as a sandsaw operator and forklift driver. Mr Grbin deposed that as part of his duties, he would move and manoeuvre large quantities of timber on a regular basis. This subsequently led to Mr Grbin experiencing an onset of pain in his arms in 2017 which further increased in mid-2017 as his work duties and demands increased.
11Mr Grbin sought initial treatment for his pain form his general practitioner and underwent some radiological investigations. Mr Grbin ultimately ceased work in or around October 2017 and has not returned to work since.
Credit
12I had the opportunity to observe Mr Grbin in the witness box. I considered his answers against the evidence he provided in his affidavits, the histories to his treating practitioners and experts he has seen throughout his case.
13While his answers in the witness box were at times gruff and argumentative, they were consistent with the other relevant evidence.
14Counsel for the defendant drew my attention to Mr Grbin's evidence regarding the following with respect to challenges with his credit:
(a) job applications;
(b) social medial use regarding crypto currency;
(c) previous loss of licence;
(d) dealings with Konekt; and
(e) oral opinion of his GP on capacity.
15I have considered this evidence and the defendant's submissions regarding it. For the most part, I will address the issues that weighed on my considerations in my reasons below.
16Regarding his previous loss of licence, I have considered the answers he provided. While his answers were imperfect, I accept he was not trying to conceal either his use of cannabis nor his loss of licence, nor did his answers to these questions cast doubt on his reliability as a witness regarding the matters relevant to my decision.
17Overall, I did not find that any of his evidence impugned his ability and reliability as a witness. I therefore find that Mr Grbin's credibility was not impugned at the hearing of this matter.
Organic injury and disentanglement
18The defendant did not dispute that Mr Grbin suffered a repetitive strain injury to each of his left and right upper limbs resulting in ulnar nerve dysfunction. The defendant submitted that while the injuries were the subject of successful operative interventions, I should not, and in fact could not, find the persisting symptoms had a substantial organic basis based on the evidence.
19The defendant relied on the history of opinion provided by Mr Grbin's treating neurosurgeon, Dr Cochrane, and the tendered material in support of their submission. It was submitted that Dr Cochrane's view changed from optimism for significant recovery[2] to pessimism with respect to ongoing symptoms in the report he provided for Mr Grbin's solicitors.[3]
[2] Report of Dr Cochrane, dated 10 May 2021, PFACB 76–77; Report of Dr Cochrane, dated 22 June
2021, PFACB 81–82; Report of Dr Cochrane, dated 23 November 2021, PFACB 90; Report of Dr Cochrane, dated 28 January 2022, PFACB 96
[3] Report of Dr Cochrane, dated 26 September 2022, PFACB 100
20Counsel for the defendant took me to extracts of Dr Cochranes' material which showed he had concern about the likely prognosis for Mr Grbin's right and left upper limb impairments because of his psychological condition.
21I have reviewed the opinions provided by Dr Cochrane. I do not accept that there is an inconstancy between the progression of opinion and the reports of Dr Cochrane. The views expressed and the opinion provided by Dr Cochrane are consistent with a finding there is an organic basis for Mr Grbin's right upper limb impairment.
22I have formed this view because:
(a) the surgeries were undertaken to improve Mr Grbin's symptoms arising from the organic injuries as identified in the nerve conduction studies;
(b) the histories that Dr Cochrane has taken throughout the course of treating Mr Grbin as outlined in the various correspondence and clinical reports reveals some, but not complete, improvement of those symptoms;
(c) he noted in his report of 26 September 2022 that the surgeries assisted with the dysaesthesia Mr Grbin experienced distally in his upper limbs and hands, but Mr Grbin remained with significant forearm pain; and
(d) Dr Cochrane’s ultimate opinion, as expressed in his report of 26 September 2022, is that Mr Grbin has been left with residual symptoms based on and consistent with the organic injury. He has not suggested the ongoing symptoms are inconsistent with the ongoing injury.
23
The opinions of the other treating practitioners also support a finding that
Mr Grbin's right upper limb symptoms arise from an organic injury:
(a) while Dr Thomas diagnosed Mr Grbin as suffering from chronic pain syndrome, he also identified an ulnar nerve problem at the right elbow for which Mr Grbin has had successful surgical treatment. He agreed it was appropriate that the procedure also be undertaken on the left side;[4]
(b) Dr Gillett found that he had a right elbow forearm injury associated with ulnar never symptomology and right shoulder soft tissue injury associated with subacromial impingement;[5]
(c) Dr Wyatt said Mr Grbin's arm problems were best characterised as overuse condition presumably with an element of ulnar neuritis;[6]
(d) having reviewed the opinion of Dr Cochrane regarding the favourable response Mr Grbin had to surgical treatment on his right elbow, Dr Burke agreed that the request for surgery on the left side was reasonable.[7]
[4] Report of Dr Thomas, dated 4 November 2021, at Defendant’s Further Amended Court Book (“DFACB”)
112
[5] Report of Dr Gillet, dated 7 August 2023, PFACB 147
[6] Report of Dr Wyatt, dated 10 June 2023, DFACB 132
[7] Report of Dr Bourke, dated 22 March 2021, DFACB 91
24While there is reference in the opinions to non-organic symptoms, that is a psychological impairment, I was satisfied that the medical experts were, for the most part, clear that their answers related to either the right upper limb or the left upper limb. Thus, I was satisfied that the expert evidence sufficiently disentangled the consequences arising from each of the right and left upper limbs separately for the purpose of the questions I needed to address. I will outline this further below as I address the consequences as they pertain to suitable employment.
25I therefore find that Mr Grbin has an organic injury to the right elbow and shoulder, resulting in an impairment to the right upper limb.
Right upper limb impairment
26Mr Grbin is right-hand dominant. His evidence was his right arm causes him the most problems.
Pain
27He experiences significant and constant pain in his right upper limb. He said that his right arm was worse than his left. He was not challenged on the extent of his pain in cross-examination.
28He stated he is bedridden because of increased pain at least once a month.[8] He manages his pain with medicinal cannabis, having found other medication unsuitable due to their side-effects. The cold weather aggravates his symptoms. He wears thermal tops and gloves to keep his upper limbs warm.[9]
[8] Konekt report, dated 26 July 2023, DFACB at 26; Transcript (“T”), dated 23 May 2024, at Lines (“L”)
29–31
[9] Report of Dr Awad, dated 19 July 2023, PFACB 134
29He described the pain his right elbow to Dr Awad as having a background score of four to five out of 10, which increased to 10 out of 10 on aggravation.[10] His sleep is disturbed by the pain.[11]
[10] Ibid
[11] Ibid
Restrictions
30Turning to restrictions, Mr Grbin has lost strength in his arms and grip strength. His pain is aggravated by activity which involves use of the right hand.
31In his further affidavit, he states that the following aggravates his pain:
(a) pushing and pulling movements;
(b) twisting or turning movements;
(c) lifting of light weights;
(d) trying to hold or touch anything that vibrates; and
(e) driving.[12]
[12] Mr Grbin’s further affidavit, affirmed 29 April 2024, PFACB 19–20 at paragraph [11]
32This is consistent with the findings and opinions of the medical experts who expressed an opinion on his restrictions.
33Dr Sullivan,[13] Dr Awad[14] and Dr Gillett[15] all find that Mr Grbin is unfit for work involving repetitive movements and manual handling because of the right upper limb alone.
[13] Report of Dr Sullivan, dated 13 July 2023, PFACB 128
[14] Report of Dr Awad, dated 19 July 2023, PFACB 137
[15] Report of Dr Gillet, dated 7 August 2023, PFACB 149
34Dr Sullivan found that he had a pushing, pulling and lifting capacity incidentally of around three to five kilograms, and in a repetitive fashion, no meaningful capacity (less than one kilogram of repetitive pushing, pulling or lifting). He noted that he had reduced capacity for gripping, holding and carrying of around three kilograms or less. He had reduced capacity for typing, writing and use of tools.[16]
[16] Report of Dr Sullivan, dated 13 July 2023, PFACB 128
35Dr Awad found that he was permanently medically excluded from the following activities:
(a) pushing, pulling or lifting;
(b) repetitive pushing, pulling or lifting;
(c) overhead activities;
(d) gripping, holding, carrying;
(e) typing, writing, use of tools;
(f) other physical functions or motions; and
(g) working with arms outstretched or prolonged writing, typing, by manual tasks that require force or fine dextrous movements.[17]
[17] Report of Dr Awad, dated 19 July 2023, PFACB 135–136
36Dr Gillett found that he was not able to undertake involving repetitive use of the right arm in its own right. Manual handling tasks with the right arm would be problematic. He said he required light work and suggested retraining to workplace health and safety would be appropriate. In that type of work, he said he would have issues with typing and writing, but with good ergonomics he would be able to undertake those activities but be slower than an able-bodied person.[18]
[18] Report of Dr Gillet, dated 7 August 2023, PFACB 149
37Dr Cochrane found that Mr Grbin had the same restrictions, although he did not confine his opinion to the right upper limb alone[19] (and thus he could be said to have failed to disentangle the consequences).
[19] Report of Dr Cochrane, dated 26 September 2022, PFACB 102
38While Dr Wyatt did not go as far as the other practitioners, she too found that Mr Grbin was permanently unfit to return to the repetitive manual handling tasks he was doing, including repeated gripping and grasping, and that he should not be required to flex and extend the elbows repeatedly.[20]
[20] Report of Dr Wyatt, dated 10 June 2023, DFACB 132
39
Dr Lloyd-Morgan defers to relevant specialists and hand therapists regarding Mr Grbin's work capacity. While Mr Grbin was asked about whether
Dr Lloyd-Morgan believed he had a capacity for employment arising from the discussions that he had had with him, I was satisfied that the answers Mr Grbin gave were consistent with the opinion expressed by Dr Lloyd-Morgan. I was also satisfied that the evidence was reliable and credible in light of the admission made by the Defendant regarding payment of weekly payments.
40On balance, I prefer the weight of the opinion as outlined by Dr Sullivan, Dr Awad and Dr Gillett on the question of Mr Grbin's restrictions and residual work capacity. That is, I find that Mr Grbin is unfit for work involving repetitive movements and manual handling due to the right upper limb alone.
Rehabilitation and retraining
41Mr Grbin gave evidence about his attempts at participating in rehabilitation and retraining.
42There seems to have been a great deal of time and effort put into obtaining approval for an occupational health and safety course from the WorkCover agent. Mr Grbin said that he was keen to undertake the course. However, once the approval came through, he discovered that the course needed to be completed online. He made enquiries about whether the course could be printed out so he could complete it without a computer. He was told it could not be printed. Thus, he said he was unable to attempt the course due to his low level of computer literacy.
43However, even if he had the skills, I note that he does not own a laptop computer. The computer that he had been using belonged to his partner. She moved out of his home some time after late July 2023 when their relationship ended. From that time, he has not had access to a computer, nor to a person to assist him to use a computer, both of which he required to meaningfully use the computer.
44I have turned to the records of Konekt to piece together what they believe happened at this time. The note from Konekt of 24 July 2023 states as follows:[21]
"Mr Grbin stated he had not received his new laptop charger in the mail. Mr Grbin noted he attended several medical and legal appointments over the preceding two weeks which had left him bedridden since. Mr Grbin stated he was experiencing an increase in his pain symptomology due to the cold change in weather and all of the required travel. Mr Grbin sounded despondent with slurred, slow speech and rambling content. Mr Grbin noted a change in medication last week and his deteriorating medical and psychosocial situation to have caused high stress, anxiety and worry. Mr Grbin stated he was reconsidering whether he would be able to complete the course, as his symptoms were so high."
[21] Konekt report, dated 26 July 2023, DFACB 26
45On the basis of the Konekt records, counsel for the defendant asked Mr Grbin whether he was reconsidering doing the course at this time. Mr Grbin said that he wasn't reconsidering doing the course. He had waited six months to do the course, only to find out that “no-one had done their work properly”.[22]
[22] T58, L1–23
46Mr Grbin was also asked whether he told Konekt that he did not complete the course because of his stress, anxiety and worry. Mr Grbin said that Konekt knew about all of his problems but did not tell Konekt that he could not complete the course because of his stress, anxiety and worry.[23]
[23] T58, L25–27
47While it seems unlikely to me that they would have recorded that he was stressed, anxious and worried unless he told them that he was, I found the overall answers that Mr Grbin provided in answer to these questions, together with the earlier records of Konekt documenting his interest in completing the course, consistent and reliable. The record from Konekt of 24 July 2023 is not inconsistent with an inability to complete the course online, if, or when, his symptoms improved.
48There does not appear to be any further entries relating to Mr Grbin's challenges in commencing this course. Mr Grbin's evidence was that he tried to find another course with Konekt but he “lost them”,[24] and “the people just stopped helping”[25] him. Thus, no other rehabilitation or retraining options were or have been recommended for him.
[24] T62, L24
[25] T62, L26
49Taking all the evidence regarding his attempts at participating with the occupational health and safety course into account and his dealings with Konekt, Mr Grbin’s credit and reliability as a witness regarding his attempts at participating in rehabilitation or retraining were not impugned.
50Counsel for the defendant submitted that reasonable attempts at retraining, either now or in the past, would likely have led to an increase in Mr Grbin’s skills; for example, computer skills, and would open entirely new job options up, such as in OHS or in real estate.[26]
[26] De Bono v Victorian WorkCover Authority [2019] VSCA 85, [55]; Weldemichael v ID Sales & Repairs
Pty Ltd [2019] VSCA 86, [74]
51Taking his current place of residence first, Mr Grbin would find it very difficult to participate in rehabilitation and retraining options given the remoteness of Kumbarilla, his inability to drive, his reliance on somewhat ad-hoc carers, his negligible computer literacy, and the absence of a computer.
52If any suitable retraining options were to be identified, counsel for the defendant conceded they would likely have to be undertaken by correspondence or by phone. I doubt this is realistic. While many courses are now available to be undertaken remotely, I am not aware of courses that can be completed remotely without a computer and without computer literacy skills. Thus, in the absence of a computer and computer literacy skills, Mr Grbin is not realistically going to be able to undertake a rehabilitation or retraining course remotely.
53Turning to his prior places of residence, counsel for the defendant said Mr Grbin could have made efforts to participate in rehabilitation or retraining when he lived in Gladstone and other regional centres, which I note included Minden, Dalby and Tara. Had he done so, he would have been in a better position today to identify and obtain suitable employment.[27]
[27] Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121; 34 VR 120, [115]
54Mr Grbin's evidence was that he looked for work while in these towns. He contacted former employers to see if there were any jobs available that would be suitable for him. These efforts did not result in employment. Counsel for the defendant submitted that Mr Grbin's evidence was vague and unconvincing on this point. I did not find it so. I thought it was logical that a worker with Mr Grbin's background would turn to former employers on his return to Queensland to look for work, particularly given the absence of computer skills that would no doubt have otherwise been required to apply for jobs. I found his evidence reliable on this point.
55Thus, Mr Grbin was making efforts to return to suitable employment while residing in these towns. While he could also have attempted rehabilitation or retraining, presumably because there were more options available in those towns than elsewhere, his challenges with getting around would not have been eliminated. His evidence was that he lived on the outskirts of town when living in Gladstone. The other towns he has lived in are larger than Kumbarilla but smaller than Gladstone. While he may have had access to more transportation options in Gladstone and other regional centres, and potentially more access to rehabilitation and retraining, there was no evidence led that this would be so. In addition, the other barriers to identifying and sourcing suitable rehabilitation options remain the same.
56Counsel for the defendant did not submit that the plaintiff had refused other rehabilitation or retraining options offered to him. I thus infer he was not offered any other rehabilitation or retraining while residing in these towns.
57Because of the absence of evidence of failing to participate in rehabilitation and retraining requests, the efforts made by Mr Grbin to complete the occupational health and safety course and to engage with Konekt, and the attempts Mr Grbin has made to find alternative employment, I find Mr Grbin has made all reasonable efforts to participate in rehabilitation or retraining.
Suitable employment
58Counsel for the plaintiff submitted that Mr Grbin did not have the capacity for suitable employment because of his:
(a) place of residence;
(b) inability to drive a motor vehicle;
(c) ongoing pain;
(d) restricted activities; and
(e) his education and work experience.
59A desktop review was undertaken by Ms Reynolds, senior rehabilitation consultant from Recovre, on 21 and 22 May 2024. She was asked to provide recommendations of vocational options which would be suited to Mr Grbin based on the medical documentation she was provided with and the availability of jobs within those options with a 60-minute drive from Kumbarilla. She completed her report in line with Mr Grbin's functional capability, age, education, skills and experience, preferences and interests.
60Ms Reynolds identified two positions that were suitable: those being automotive parts interpreter and console operator.
61Counsel for the defendant abandoned reliance on the automotive parts interpreter in their closing submissions. Thus, the only position that the defendant submitted that met the definition of suitable employment was that of console operator. I will thus confine my findings and reasons to consideration of that role.
62While Ms Reynolds commendably went to great lengths to identify suitable employment options for Mr Grbin, I find her analysis fell short of establishing the role of console operator was suitable for Mr Grbin for the following reasons:
(a) Ms Reynolds identified Mr Grbin as having experience communicating with customers, providing customer service, experience performing the day-to-day running of a small business, cash handling, taking cash payments, giving the correct change and processing EFTPOS payments. She has not provided a basis for making those assertions. She may have been relying on Mr Grbin's time running a scrap and salvage business that he had for two to three years between 2004–2007 to find that he had these transferrable skills. That skills required in that kind of business are very different to those required of a console operator with respect to customer communication, customer service, cash handling and processing of EFTPOS payments. There is a frequency of contact and a degree of professionalism required with customers and colleagues as a console operator that is not required in a scrap and salvage business. The requirements are also likely to be different as an employee rather than as a self-employed business person. There was no evidence that Mr Grbin used EFTPOS technology in his scrap and salvage business, but if he did, it is likely to have been primitive compared to the technology used in service stations today.
(b) If the extensive cross-examination of Mr Grbin regarding his trading in cryptocurrency had led me to believe he had at least basic computer skills, I might have formed a different view. However, I concluded he did not have the requisite computer skills to engage in that trading without the assistance and knowledge of another person, together with their computer. Therefore, it did not lead me to believe that he had basic computer skills that would be transferrable in the workforce. Further, his credit and reliability with respect to the matters relevant to my decision were not impugned through this cross-examination.
(c) Given the absence of explanation about how Ms Reynolds arrived at these conclusions about Mr Grbin's transferrable skills, together with the evidence relied on at the hearing, and Mr Grbin's evidence, these skills are not transferrable to the role of a console operator.
63The consequence of this finding is sufficient to make a finding that the position of console operator is not suitable for Mr Grbin, however, there are further issues that I wish to address in relation to this role:
(a) Ms Reynolds acknowledged that Mr Grbin would not be suitable for all the roles within the occupation of console operator. She noted that the roles which required heavy manual handling such as receiving and storing deliveries of stock would not be suitable for Mr Grbin.[28] She said that she reviewed numerous roles from across Queensland and not all roles required heavy manual handling. This leads to a conclusion that at least some, and perhaps many, of the roles do. Based on the medical evidence from all practitioners, any role that required heavy manual handling would not be suitable for Mr Grbin.
(b) Ms Reynolds spoke with the representative of BP Service Stations who she reported as saying that the role at BP could be completed without heavy lifting. The heaviest items to be lifted were two-litre bottles of soft drink. Ms Reynolds said that the task of restocking soft drink was non-repetitive and broken up with customer service. While I acknowledge that she said that not all staff were required to help move items over five kilograms into the storeroom, that means that at least some staff are. No evidence was provided about how staff would obtain an exemption from having to lift the items weighing over five kilograms, and thus whether it was really possible to do this role if you were not lifting items weighing over five kilograms.
(c) Ms Reynolds said there were two console operator roles advertised on Seek and three roles advertised on Jora at the time of writing her report, neither of them being at BP. Freedom Fuels and United Petroleum were among the employers advertising at the time of the search. Ms Reynolds was unable to gain suitable labour market information from the staff at those stores. Given Ms Reynolds' acknowledgement that the requirements of the console operator role varies across the state, that some roles require heavy lifting and manual handling, and the absence of evidence about what the roles at Freedom Fuel and United Petroleum might require, I was unable to form a view about the suitability of those roles. Therefore, I do not place any reliance on those roles or those vacancies.
(d) To the extent that the information was supplied by GP, I do not know whether a representative from BP was located (for example, in the head office or at a local BP Service Station). This is important. Lifting and manual handling requirements of a console operator are likely to be more onerous in a service station in a smaller town as there are likely to be fewer staff to share duties with. What would Mr Grbin be expected to do, for example, if a delivery of multiple boxes of two-litre bottles of soft drink arrived at the beginning of his shift and he were the only person on shift for eight hours? It seems unlikely that his employer would be content with him leaving the boxes where they were placed by the delivery driver for another worker to move at a later point.
[28] Labour market analysis report of Ms Reynolds, dated 3 May 2024, DFACB 423
64I thus find on the analysis provided by Ms Reynolds the role of console operator is unstable for Mr Grbin. However, there are other grounds on which I found that the role of console operator was unsuitable.
65Mr Grbin does not have the capacity to drive himself to and from work. This is a substantial barrier for suitable employment for an unskilled worker who lives in a remote town in Queensland.
66It was asserted at the hearing that Mr Grbin's carer could drive him to and from work. This is not realistic. His carers appear to have been friends or family of Mr Grbin or the adult children of friends or family. The arrangements appeared to be ad-hoc. The kind of driving that Mr Grbin described them doing for him were things like trips and to and from the shops, to and from medical appointments or to and from a local town to attend to other business such as catching a plane to come down to Melbourne for this hearing.[29]
[29] T45, L27–31; T48, L1–7; T49, L5–27
67Although these driving trips were regular, they were not daily, and did not involve the carer waiting for Mr Grbin for a long period of time while Mr Grbin attended to his other duties (such as would be required with full time duties). There was no evidence regarding the availability of a carer to drive Mr Grbin regularly and reliably to and from employment.
68While there was evidence that his current carer, Zane, was making an application for a carer's pension, there was no evidence that the pension would cover reimbursement for fuel, time, use of the vehicle or maintenance costs of the vehicle. Nor was there evidence about what would be done if the carer was sick, on holidays or otherwise unavailable.
69When it was put to him cross-examination that he could get a carer to drive him to and from employment, Mr Grbin expressed concern about how he would get home,[30] supporting the proposition that the nature of the arrangement was not one that involved on-call driving duties to and from work, five days a week.
[30] T64, L21–25
70For all these reasons I find that the position of console operator does not constitute suitable employment for Mr Grbin. I therefore find that Mr Grbin does not have a capacity for suitable employment.
Conclusion
71Mr Grbin has suffered a significant injury to his right elbow and shoulder. He has few transferable skills. His capacity to obtain suitable employment and participate in rehabilitation and retraining is further reduced by reason of his place of residence and his inability to drive. Taking all factors into account relevant to the definition of suitable employment I found that Mr Grbin does not have the capacity for suitable employment.
72I therefore find that Mr Grbin has a permanent serious impairment of the right upper limb arising from his pecuniary loss. The parties agreed that in the event I was to so find, I would not be required to separately consider the pain and suffering consequences to Mr Grbin before making my final orders.
73I therefore grant leave to Mr Grbin to proceed with common law damages for pecuniary loss and pain and suffering.
74I will now hear from the parties on the question of costs.
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