Halls v VWA

[2021] VCC 1893

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-21-01304

DAVID HALLS	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2021
DATE OF JUDGMENT:	1 December 2021
CASE MAY BE CITED AS:	Halls v VWA
MEDIUM NEUTRAL CITATION:	[2021] VCC 1893

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious Injury – Injury to lumbar spine – Defendant conceded injury is permanent and that pain and suffering threshold is met – Dispute as to whether Plaintiff meets the threshold for loss of earning

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Judgment:                  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr I McDonald QC with Mr L Allan	Henry Carus & Associates
For the Defendant	Mr R Middleton QC with Ms K Manning	IDP Lawyers

HIS HONOUR:

1Mr David Halls started work with Ambulance Victoria as a paramedic in 2008. He suffered injury on 4 December 2017 during the course of his employment. The issue in this case is whether or not Mr Halls has suffered a loss of earning capacity of the requisite level needed to satisfy s 325(2)(e)(i) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

2This is because the issues in dispute had narrowed considerably by the time of Trial. It is useful to set out those matters which are not in dispute between the parties. The following matters were agreed, or not really in contention, by the time the Trial concluded:

(a)   the Plaintiff suffered injury at work on 4 December 2017;

(b)   the injury was to the lumbar spine, being a left paracentral intervertebral L5-S1 disc extrusion, which required surgical decompression, microdiscectomy and rhizolysis, performed on 17 March 2018;

(c)   the injury is permanent; and

(d)   the pain and suffering impairment consequences meet the definition of being a serious injury.

3The dispute in this case is over whether Mr Halls can demonstrate a loss of earning capacity of the requisite level. That dispute is narrowed further because the following matters are also non-contentious:

(a)   at the time of the injury occurring, Mr Halls was employed full time as an Ambulance Victoria paramedic;

(b)   the figure that most fairly reflects his earnings for the amount he was capable of earning in the three years before and three years after the injury is $107,610.47. I interpolate that though the Plaintiff gently suggested a higher figure of some $112,000 was more appropriate, having considered the matter, I accept the Defendant’s submission on this point. That is the figure shown in the standard payslip fairly reflects the correct figure that he was capable of earning in the three years before and three years after the injury;[1]

(c)   he cannot return to work as an Ambulance Victoria paramedic;

(d)   he can only return to sedentary administrative positions that do not involve lifting and carrying of weights more than 5 to 10 kilograms;

(e)   the parties agree that the dispute is whether Mr Halls can return to the sedentary positions on a full-time basis or a part-time basis of 15 to 20 hours per week. The Defendant concedes that if the Court accepts that he can only return on a part-time basis of 15 to 20 hours in these suitable sedentary administrative positions, then he will have satisfied the Court as to the relevant test, and a loss of earning capacity determination in his favour must follow.[2]

[1]        Plaintiff’s Court Book (“PCB”) 242.

[2]        Transcript (“T”) 10, Line (“L”) 5

4Turning to the parties’ contentions. Mr Halls argues that he can only work in sedentary positions on a part-time basis of 15 to 20 hours per week. This is primarily because he has attempted such work on a full-time basis, at his wife’s veterinary practice as the practice manager between November 2020 and February 2021, and found that he was unable to cope. His evidence is that he can only work 15 hours per week in such a role. This submission is supported by the affidavit of his wife, and medical evidence which I will set out below.

5The Defendant argues that Mr Halls can work in sedentary positions on a full-time basis. This is said to be supported by medical evidence and the Defendant’s allied submission which is that the Plaintiff has not tried as hard as he might and has downplayed his capacity to work.

6Before addressing each of the Defendant arguments, it is necessary to say something about the evidence of Mr Halls. Mr Halls credit was never challenged. He gave evidence in a very direct, concise and clear manner. He spoke eloquently of his attempts to return to work as an Ambulance Victoria paramedic and the love that he had for the role. He gave detailed answers when required. His evidence was consistent with other contemporaneous records and, particularly, the medical evidence in the case. Overall, he presented as a forthright, honest witness and I accept his evidence. To the extent it conflicts with medical opinion as to his capacity for work, I would prefer his evidence, supported by that of his wife and other relevant medical practitioners which I will detail below.

7By itself, that is sufficient to dispose of the case. This is because, once his evidence is accepted that he has attempted to work more than 15 hours per week, but has been unable to, in relevant suitable sedentary work, it follows that he is unable to earn more than 40 per cent of his earnings of $107,610.47. The Defendant conceded that proposition.[3]

[3]        T10, L5

8However, turning now to analyse each of the Defendant’s arguments in greater detail.

Background history

9Mr Halls was born in Victoria and left school in Year 12. He completed a health science degree as a podiatrist and worked in this role for six years. He then returned to Australia and completed a further degree in health science (paramedic) in Melbourne. He began working for Ambulance Victoria as a paramedic in 2008.

10He married his wife, Kelly, in February 2008, and they have two daughters, one who is twelve and the other who is nearly ten. Mrs Halls works as a qualified veterinary surgeon. In 2015, Mrs Halls established a private veterinary clinic. The Plaintiff assisted with some minor handyman work and occasionally did casual administration duties, but he was otherwise engaged full time at Ambulance Victoria.

11On 4 December 2017, he sustained an injury at work to his lower back. The details of that are set out above. He attempted to remain at work, but by early February he had not recovered. Consequently, Mr Halls filed a worker’s injury claim form, which was accepted. He was shortly afterwards referred by his general practitioner for MRI scanning and then onto Dr Ales Aliashkevich, a neurosurgeon. He recommended surgery that was conducted on 17 March 2018. The surgery was a left hemilaminectomy, L5-S1 decompression of the lateral and subarticular spinal stenosis, microdiscectomy and rhizolysis. He had approximately six months off work and then returned to work on light duties 3 days a week for 5 hours a day. At this stage he gave evidence that he was planning on a return to his old job as an paramedic.

12He had a return of pain by about December 2018 and had a further review with Dr Aliashkevich. The pain was in his lower back and into the left leg. He describes the pain in the lower back as being tightness, but the pain in the left leg as being much more significant. He gave evidence that the surgery had alleviated some of the footdrop problems, but had not taken away the left leg pain. Dr Aliashkevich trialled a CT guided nerve root injection. This did not appear to alleviate the left leg problems and Dr Aliashkevich referred him onto Dr Murray Taverner, a pain specialist. The Plaintiff, during this time, continued to attempt limited work with Ambulance Victoria. This was doing purely administrative duties. He trialled some driving work for a friend, but this was unsuccessful. Dr Taverner attempted epiduroscopic adhesiolysis in December 2019. This had only limited effect.[4] A steroid injection was then trialled in December 2019, similarly with little effect.[5]

[4]        PCB 89

[5]PCB 16, at paragraph [17]

13He was then trialled with a variety of pain-relieving patches and had TENS treatment.

14Dr Taverner attempted nerve blocks in the ankle which did not have success and in June 2020 further nerve treatment titled PENS was trialled.

15In July 2020, an ultrasound-guided left nerve block was performed. Once again, this had very little effect on the ongoing problems in the back and left leg.

16The Plaintiff had taken long-service leave at the beginning of 2020. He gave evidence that this was to try all the treatment suggested to him, with the hope that it would improve his condition so he could go back to Ambulance Victoria. As set out above, he trialled those different treatments as suggested by Dr Taverner, but they did not have the effect he desired. As a result, at the end of 2020, Ambulance Victoria and he came to the view that he would not be able to continue with his employment at Ambulance Victoria and he thus, on their urging, applied for an ESSS superannuation pension.

17In about November 2020, he decided to attempt to take on more work at his wife’s veterinary practice as the practice manager. He gave evidence that this was a flexible environment, where he could move about and stretch as necessary. However, he gave evidence that the full-time hours were too much for him. He gave evidence of his pain and discomfort increasing significantly during the course of the day as he was required to sit and stand. He gave evidence that it became impossible to complete full-time work and he and his wife realised this was the case by February 2021. His wife’s evidence, in her affidavit, was consistent with this and not challenged.

18As a result, the Plaintiff determined that his working capacity was only about 15 hours per week. This was, of course, consistent with the work that he had been doing while with Ambulance Victoria and of very similar hours.

The Defendant’s contentions

19The Defendant submits, firstly, that Mr Halls has a capacity to work in sedentary positions on a full-time basis. It relies primarily on the opinion of Dr Clayton Thomas, who provided a report dated 28 September 2021. That report opines that the Plaintiff has a capacity to return to full-time hours. In support of that contention, the Defendant relies on the reporting of Dr Majid Rahgozar, from September 2018, in which he expressed optimism that the Plaintiff would be able to return to work on a full-time basis. The obvious limitation of his opinion is that Dr Rahgozar was not aware of the treatment which would be trialled by Dr Taverner to deal with the worsening pain condition and that had no substantial effect. Dr Rahgozar’s opinion, then, is conditional and uninformed by later developments prior to the Trial. It is not informed by Dr Taverner’s or Dr Aliashkevich’s interventions after his reporting. I put it to one side. The Defendant also relies on the report of Dr Joseph Slesenger, who reported in March 2020. Dr Slesenger’s report is that of an occupational physician. Dr Slesenger’s report is also uninformed by the fact that the Plaintiff attempted to return to work full time from November 2020 to February 2021, but he was unable to complete full-time hours. This is a significant limitation of Dr Slesenger’s report. However, Mr Hall’s limitations exposed during his work at the veterinary practice are entirely consistent with Dr Slesenger’s finding that Mr Halls can only work on restricted hours. While he does not specify how many hours this might be, he quite clearly was of the view that the Plaintiff would not be able to work full-time hours. When looked at closely then, Dr Slesenger does not support the Defendant’s submission, or for that matter, Dr Thomas’ opinion. This is significant coming from an occupational physician when this case revolves around Mr Halls’ capacity to return to work. Next, the Defendant relied upon the report of Mr Roy Carey, an orthopaedic surgeon who had provided an opinion in January 2020. Mr Carey does not provide an opinion as to the Plaintiff’s capacity for employment. It is thus of limited value to the Defendant in support of its contention. However, it is to be noted that Mr Carey considered the Plaintiff to be a direct and genuine person, who reported his symptoms with no embellishment. Furthermore, Mr Carey’s assessment of the Plaintiff was entirely consistent with his depiction of his symptoms. This supports my finding, firstly as to the Plaintiff’s credit, but also supports the Plaintiff’s primary argument that he has only a capacity for 15 hours of work per week. The Defendant also sought to rely on the opinion of Dr Jennifer Harmer, an occupational physician.[6] However, this report is limited in its utility, given that it was given before the Plaintiff had attempted to return to work full time in late 2020. It must also be said that when looked at closely, Dr Harmer’s opinion is that Mr Halls only had a potential to return to work and she was uncertain whether that would ever come to pass. The fact is that this is only extremely cautious support for the Defendant’s proposition and has in fact been overtaken by factual events of the Plaintiff attempting to return to work full time and being unable to complete it. The Defendant also called in aid the reporting of Mr Russell Miller, an orthopaedic surgeon, from September 2021.[7] However, that report notes that the development of the chronic pain syndrome will impact the Plaintiff’s capacity for work. There is no particular indication from Mr Miller that the Plaintiff has a capacity for full-time work at all. I find that it does not support the Defendant’s contention. The Defendant also sought to call in aid the occupational physician, Dr Peter Wilkins.[8] However, his supplementary report clearly indicates that the Plaintiff only has a capacity for, at best, 50 per cent of full-time hours.[9]

[6]        PCB 176

[7]PCB 117

[8]PCB 124

[9]        PCB 139

20It can be seen by that brief survey that the opinion of Dr Thomas is really an isolated one. I do not accept it. It goes against the majority of the medical evidence in this case, particularly that of the occupational physician, Dr Wilkins.

21Turning to the second contention of the Defendant that Mr Halls has simply not been trying as hard as he could to utilise his capacity for work. This was said to be shown in three different ways. The first was that Mr Halls obtains a distribution from the trust company that operates the veterinary business. It was argued that in actual fact the trust distribution was a recognition of significant work done by Mr Halls for the veterinary business. I reject this contention. Mr Halls gave evidence, and his wife’s affidavit was wholly supportive of this, that the trust distribution was made on a 50/50 basis between himself and his wife irrespective of work done. This arrangement had been in place since 2015, well before the subject accident. It was an arrangement established by the accountant and each of Mr Halls and his wife took an equal share whenever the trust recorded a profit. There is no evidence that Mr Halls was providing significant assistance for the veterinary business. I do not accept that the trust distribution was reflective of him deploying his work capacity at the veterinary business. In support of this argument, the Defendant noted that superannuation was being paid to Mr Halls by the trust company, but that no wages were shown. It was argued this was a way of concealing his work for the trust. I reject this argument. The Plaintiff gave evidence that this was an arrangement set up by his accountant and in no way reflected the fact that he was working at the business. His wife’s evidence broadly supports this. I accept that evidence. I reject the Defendant’s contention. Secondly, the Defendant argued that because Mr Halls was receiving large amounts of income from ESSS and AMP, he had no incentive to work and deploy his physical capacity. Mr Halls gave poignant and eloquent evidence about the importance of work to him. He gave evidence that work was much more than about money for him and that he valued his work, he had studied very hard to obtain it and he considered work to be a contribution towards his community. In all those circumstances, he said he had endured and undergone every form of treatment that he possibly could in order to return to work because he valued it so much. In that circumstance, he gave evidence that he was not a person to shirk work, but rather someone that welcomed it and would work if he could. I accept that evidence and I reject the Defendant’s argument. Thirdly, the Defendant argued that Mr Halls had deployed his work capacity by establishing a number of companies with his wife in order to purchase properties. The Defendant argued this was good evidence of a work capacity and countered Mr Halls’ affidavit evidence that he could not work more than 15 hours a week. Mr Halls explained that the property purchases were primarily to expand his wife’s business. He freely admitted to, at times, spending a few hours per week assisting with paper work, but his evidence was that it went no further than that. It was certainly not regular and consistent work of a full-time worker, or even occupying 15 hours per week. Accepting Mr Halls’ evidence, I reject the Defendant’s submission in this regard.

22Having considered the totality of the evidence, I find that Mr Halls has a capacity for work of around 15 hours per week. It was suggested by Dr Bruce Love that he has a capacity of up to 20 hours per week. Even if I was to accept this, it would not alter the ultimate determination that there has been a loss of earning capacity to the requisite degree.

23Given the Defendant’s concession that if I were to accept Mr Halls’ evidence and find he only had a capacity to work 15 hours per week, he would satisfy the relevant test in the Act,[10] I do not need to go further.

[10]        Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

24I formerly record my findings, then, that Mr Halls has satisfied me that he has pain and suffering impairment consequences which satisfy the terms of s 325[11] and I will make a determination accordingly. I further find that he has suffered a loss of earning capacity of the requisite level on the basis that he can only return to work for 15 hours per week in sedentary administrative roles.

[11] Ibid s 325

25I will hear the parties on the formal orders and costs.

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