Hankinson v ITI (Vic) Pty Ltd
[2021] VCC 554
•25 June 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-03632
| DAVID HANKINSON | Plaintiff |
| v | |
| ITI (VIC) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 April 2021 (via Zoom) | |
DATE OF JUDGMENT: | 25 June 2021 | |
CASE MAY BE CITED AS: | Hankinson v ITI (Vic) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 554 | |
REASONS FOR JUDGMENT
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Subject:WORKPLACE ACCIDENT
Catchwords: Serious injury – Pecuniary loss consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Giankos v SPC Ardmona Operations Ltd (2011) VR 120; The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545, 573
Judgment: Leave granted for pain and suffering and economic loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr G Pierorazio | Arvia Lawyers |
| For the Defendant | Mr C A Miles | Wisewould Mahony |
HIS HONOUR:
Introduction
1This is a serious injury application in respect to a workplace injury. The issue in dispute is whether the plaintiff is entitled to the leave of the Court to commence a proceeding for loss of earning capacity damages in circumstances where he has a residual capacity for employment. The relevant legal principles are not in dispute. The resolution of this application essentially involves the determination of a factual dispute, namely the plaintiff’s “after injury” earning capacity.
2The plaintiff, Mr David Hankinson, is a now fifty‑year-old man. In April 2013 he commenced working with ITI (Vic) Pty Ltd (“the defendant”) as a yardman at a wholesale timber business operated by the defendant in Altona. He was initially employed on a casual basis and then a full-time arrangement, although the hours did vary. He obtained a forklift licence, and forklift driving was added to his duties.
3On 9 July 2014, while assisting a co-worker to move a large piece of timber at the defendant’s timber yard, the plaintiff tripped over packs of timber stacked on the ground, stumbling and falling (“the incident”).[1] He immediately developed pain in his back. He attended a general practitioner close to his work, Dr Klaus Oppenheimer, and was referred for a CT scan, which was performed at the Western Private Hospital the same day, and reported as demonstrating an undisplaced fracture through the right transverse process of L3 with hairline fractures through the right L2 and L4 transverse processes.[2]
[1]Plaintiff’s Court Book (“PCB”) 10
[2]PCB 53
4The defendant accepts that the plaintiff suffered injury to his spine because of the incident. The injury has been described as fractures of the right sided transverse processes of the second, third and fourth lumbar vertebrae with some aggravation of underlying degenerative disc disease.[3] Because of that injury the defendant concedes that he has ongoing pain and suffering consequences that are “serious”. It is also conceded that because of the injury he cannot return to his pre-injury employment.
[3]Mr Michael Dooley, orthopaedic surgeon, Defendant’s Court Book (“DCB”) 46
5The inability to return to pre-injury employment is, in my view, a “very considerable” loss of earning capacity consequence for the purposes of s325(2)(c)(ii) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), and therefore the plaintiff satisfies that part of the statutory provision.
6The remaining and only issue in dispute is whether the plaintiff suffers the requisite 40 per cent loss of earning capacity as per the statutory formula contained in s325(2)(e), (f) and (g) of the Act.
7The plaintiff is currently employed at Beacon Lighting as a part-time sales assistant. There is no argument that he has a residual work capacity. His counsel, Mr Tobin SC, submitted in final address that the real question in this case is whether or not the plaintiff is at present exercising his earning capacity at Beacon Lighting to the extent of his retained capacity and whether that is likely to continue into the future. It was conceded that if in fact the plaintiff has a capacity at present to work greater than 20 hours per week then he will not satisfy the statutory formula.[4]
[4]Transcript (“T”) 115, Lines (“L”) 19−28
8To satisfy the statutory formula, the measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the worker is earning or is capable of earning in suitable employment at the date of the hearing (“after injury earnings”); and
(b) the gross income that the worker was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earnings”).[5]
[5]Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545, 573 [89]
The Plaintiff’s pain and suffering consequences
9As mentioned, the defendant concedes that the plaintiff has pain and suffering consequences from the compensable injury that are “very considerable”.
10I will briefly deal with some of the evidence in respect to the plaintiff’s treatment and pain and suffering consequences, to provide some context to the disputed issue of residual work capacity.
11The plaintiff has required various forms of conservative and invasive treatment, including referral to pain-management specialists and for a pain-management program. He has undergone several injections and related procedures into his low back. The most recent of those procedures was a CT-guided right L5/S1 facet joint steroid injection arranged by Dr Jamie Young and performed on 8 April 2021.[6] That injection provided some improvement in the plaintiff’s symptoms, particularly his standing tolerance, but the improvement is temporary and will only be obtained by repeat procedures.[7]
[6]PCB 60
[7]T17−18
12More recently the plaintiff has attended Dr Simon Benson as his general practitioner. The most recent report from Dr Benson is dated 16 April 2021.[8] In that report, Dr Benson diagnoses multi-level transverse process fractures, aggravation of lumbar spondylosis, and renal contusions, as directly related to the fall at work. Dr Benson further diagnoses conditions that have been contributed to by the primary back injury, including gastric conditions.[9] Dr Benson notes the ongoing prescription of strong painkillers including tramadol and other medications to manage the plaintiff’s gastric conditions. He notes that the plaintiff’s injury occurred almost seven years ago, and the symptoms are unlikely to change, with the plaintiff likely to continue to suffer from ongoing pain and disability into the future.[10]
[8]PCB 101
[9]PCB 103
[10]PCB 105
13The plaintiff tendered two affidavits sworn by him in support of this application. This is not a case in which credit is raised as an issue. The plaintiff was not challenged in respect to the evidence of the ongoing pain and suffering consequences from his back injury. I accept his affidavit evidence.[11] In particular, I accept his evidence that he requires ongoing medication to manage his back pain; that the medication has caused side-effects including gastric complications; and that the back injury interferes with his sleep, personal life, and ability to engage in a range of day-to-day and recreational activities such as driving, engaging with his children, exercising and the like.
[11] PCB 8-18 and 37-46 inclusive
14There is no doubt that the ongoing pain and lifestyle restrictions, when combined with the need for ongoing strong painkillers and the inability to return to full and unrestricted duties, are such so as to produce a “very considerable” pain and suffering consequence. The issue of his residual capacity for work must be seen in the context of the impairment consequences he has for daily activity referable, to the extent that they translate to similar impairment consequences for paid work.
What was the plaintiff’s “before injury” earning capacity?
15The plaintiff commenced employment with the defendant in April 2013 as a yardman and forklift driver. He had been unemployed, and a single Dad raising two children, before he got the job with the defendant.[12] He was initially employed on something less than full-time hours, but he increased his hours generally to full time (37 hours per week).
[12]T19, L9−13
16Mr Mark McFarlane, a manager of the defendant, provided an affidavit dated 9 March 2021.[13] Mr McFarlane’s evidence is that in the 12 months prior to the incident the plaintiff worked an average of 32.49 hours a week, at an average rate of pay of $702 a week. As at the date of the incident the rate of pay was $22.55 per hour, but that would have increased to $22.9785 in 2015, $23.33 in 2016, and $23.91 in 2017.
[13]DCB 5
17Counsel for the defendant, Mr Miles, submitted that the plaintiff’s “before injury” earning capacity should be for 32.49 hours per week in accordance with the evidence of Mr McFarlane. I reject that submission. The plaintiff gave evidence that he had increased his hours to effectively 38 hours per week leading up to the incident. He conceded that some weeks he worked less than 38 hours, but there were many weeks when he worked more than 38 hours.[14] As at the date of the incident his usual hours were from 6.30am until 2.30pm. Those hours suited him, as he was living with his sister at the time and she would help with the children in the morning, and then he could do school pick-up.[15] The plaintiff put in evidence two payslips from the defendant which confirmed that he was working, at least at times, 38 hours a week.[16] I accept his evidence that he had adjusted his hours to full-time hours as at the incident.[17]
[14]T23, L2−4
[15]T63
[16]PCB 21
[17]T20, L22−24
18As has been mentioned,[18] for the purposes of measuring “before injury” earning capacity, it needs to be approached on the basis that the plaintiff’s earning capacity represents a capital asset which, when exercised, produced income from personal exertion. The evidence is that the plaintiff had the capacity and willingness to exercise that earning capacity for at least full-time hours with the defendant, when such hours were offered to him, before he was injured. Whilst the actual hours as recorded in Mr McFarlane’s affidavit may be accurate, I do not accept that evidence as the best evidence of the ability of the plaintiff to exercise his “before injury” earning capacity. Mr McFarlane confirms that the rate of pay was for full‑time employment. He says that the hours varied, but he does not suggest that the plaintiff was not working full-time hours as at the date of injury. His evidence, in fact, supports the plaintiff’s evidence and a conclusion – which I make – that it was effectively a 38‑hour-per-week job and that the plaintiff worked those hours when offered to him.
[18]The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292 at [53]
19The plaintiff, via his counsel, went further, and suggested that but for being injured the plaintiff could have achieved a better paid position as a full-time forklift driver with the defendant. The plaintiff’s evidence is that his yardman duties included some forklift driving, and he obtained his forklift licence whilst employed by the defendant. In his first affidavit he said:
“Based on my increasing experience it was my intention to continue working at ITI and aim to do more forklift driving work and/or seek the position of 2IC, both of which are remunerated at a higher rate.”[19]
[19]PCB 14
20Mr McFarlane refuted the plaintiff’s suggestion of achieving higher duties with the defendant. In his affidavit he dealt with the second in charge (2IC) position and said:
“Based on the Plaintiff’s performance up to the time of his claimed injury, there was nothing to indicate to the defendant that the Plaintiff would have progressed beyond the role he was then doing.”[20]
[20]DCB 6
21The plaintiff’s evidence is vague as to his aspiration to do more forklift-driving work and/or seek a position of 2IC. No time frame was provided for one or the other of those events occurring. I am not satisfied that there is a sufficient evidentiary basis for a conclusion that the plaintiff would have achieved a position as a forklift driver or 2IC in the relevant three year period post injury.
$28,347.70 is the 60% threshold
22Therefore, I conclude that the plaintiff’s “before injury” earnings should be calculated on the basis of full-time employment at 38 hours per week, as a yardman with the defendant, at the 2017 rate of $23.91, which equates to a “before injury” figure of $908.58 gross per week,[21] or $47,246.16 gross per annum. Sixty per cent of the gross figure of $47,246.16 is $28,347.70.
[21]The figure of $908.58 was put by the plaintiff as the “but for injury” figure for the job the plaintiff was performing pre-injury and I accept that submission. The plaintiff, however, multiplies that weekly figure by 52.2 weeks per annum, or 26.1 fortnightly pay periods, to calculate the annual figure. I have used 52 weeks and 26 fortnightly periods in my calculations, as per conventional thinking that there are 52 weeks in a year or 26 fortnightly periods. The calculations differ by small amounts but ultimately the outcome remains the same.
The return to work and Beacon Lighting
23Following the incident, the plaintiff performed a return to work plan with the defendant but did not progress past 12 hours a week of light duties, before his employment was terminated on 20 July 2015. The defendant does not suggest that the plaintiff could return to pre-injury employment as a yardman and forklift driver.
24In 2017 the plaintiff obtained a casual sales assistant position with a company called First Choice. But he was unable to cope with that employment, particularly when he had to sit in a van to make deliveries and then when required to increase to full-time hours.
25He subsequently found a casual sales assistant position with Beacon Lighting at the Maribyrnong store. In August 2019, he was offered a permanent part-time position at the Craigieburn store for a fortnightly roster of 37.5 hours. Then, from 24 February 2020,[22] his employment was transferred to the Essendon store, where still works on a permanent part-time basis pursuant to an employment contract of 37 hours per fortnight. The contracted hours in the first week are to work from 10am until 6pm on Monday, and from 11am until 5pm on Wednesday. Then, in the second week, he works from 10am until 6pm on Monday, 11am until 5pm on Wednesday, 11am until 5pm on Saturday, and 11am until 5pm on Sunday.
[22]PCB 27
26The plaintiff’s rate of pay at Beacon Lighting, Essendon, varies depending upon the day of the week that is worked. The base rate is $21.86 per hour. On Saturdays the rate is $24.92 per hour, and on Sundays the rate is $34.54 per hour. On a public holiday the rate is approximately $42 per hour.[23] I shall return to the issue of the appropriate hourly rate of pay later in these reasons.
[23]T31, L16−26
27The duties at Beacon Lighting were said by the plaintiff to be the limit of his capacity. In his first affidavit the he said:
“Like First Choice, I did not inform Beacon Lighting of my back problem as I was fearful of not getting the job. Fortunately, there is no heavy lifting involved in the job and most of the work consists of floor work. I also find that having day/s off in between work days gives my back a chance to rest to enable me to better manage the pain and my work going forward. Assuming I am able to change my roster to move working on the Monday after working on the weekend, I think I will be more manageable going forward albeit with difficulty. I have tried to work longer hours for Beacon Lighting in the past especially when I was a casual, but found when doing more hours consistently, it became too much in terms of my increased back pain and symptoms. My base level of pain simply became more than I could reasonably manage. Given the significant period of trial and error I have explored with my work hours, I am confident that currently I am working to the maximum of my capacity but I am still doing this with a level of duress. I am uncertain if this will be a suitable job for me long term due to the difficulties I continue to suffer, but I committed to working and want to continue on. I find when returning home from work I really struggle at home because of back pain and fatigue. I will struggle to be able to sit down for an extended period. Even sitting on the couch for periods over 20 mins becomes difficult and I need to lie down to rest my back. I find that I will then need to increase medication to cope.
In my current job, I get paid $21 per hour for weekdays, $25 per hour for Saturdays and $35 on Sundays. If rostered to work on a public holiday I am paid double time, being $42 per hour. With my current permanent part time job at the Essendon store, when working my standard normal roster of 37 Hours per fortnight, and without any additional allowances for things such as working on public holidays, I am earning around $904 gross per fortnight ($452 weekly gross). This can vary sometimes such as if we need to swap shifts with other staff which may have different days and pay rates or pick up an extra hours or shift/s due to staff absences. Now produced and shown to me and marked with the letters “DH 4” is a copy of the 8 payslips provided to me for the current calendar year outlining wages at both the Craigieburn and Essendon stores.”[24]
[24]PCB 13−14, paragraphs 26−27
28In his more recent affidavit he said:
“In terms of my hours of work, I am currently working 37 hours per fortnight. I work 8.30am to 4.30pm on Monday and 11.00am to 5.30pm on Wednesday. Every second weekend I also work on the Saturday 11.00am to 5.00pm and the Sunday 11.00am to 5.00pm. I find that this is my absolute limit. There have been occasions when I have been asked to perform extra hours when, for example, filling in for a worker who is away ill or on leave. This is very seldom and has probably occurred only six times or so over the last year. However when I have attempted those extra hours, I found it a struggle and I have informed my general practitioner, Dr Benson, of this. There have been some occasions in the past where my payslips have indicated periods of leave without pay, which have by and large been driven by the employer with its reductions to shifts and hours throughout various periods of Covid lockdowns. I have tried very hard over the years to increase my work capacity over the years, I believe I initially worked myself up from 10 hours, to 15 hours to my current capacity.
Moreover when I do work the Saturday and Sunday followed by a Monday, I find that I am laid up for most of the following Tuesday. I have asked my employer to change the Monday to a Thursday although this has yet to happen. I have in the past with Beacon tried different variations of my roster to try and find a way that the hours I work are more manageable. For instance at one stage I trialled 1 full day working, 1 day recovery, 1 full day, 1 day recovery and then 2 smaller shifts. I also tried 2 work days, 1 day off and 2 work days again. I found that it was simply to difficult to maintain and the latter of having 4 days with 1 days break in between created some serious worsening of my back pain by the end of the 4th day. I vividly recall finding it very difficult to drive home after that last shift. I have no doubt that I am currently working to the absolute maximum of my physical capacity. I enjoy working and due to my difficult financial position, If I could reliably increase my hours then I would.
I feel I am able to generally cope ok at work with the current hours but it isn’t easy for me. There is no heavy lifting involved. Although sometimes I am assisting with the lifting of large carton boxes, the contents of same are typically relatively light. Moreover, I spend perhaps up to 80% of my time standing and being able to walk around. If it were the other way around, that is 80% of the time sitting, I simply would not be able to cope. Even when standing, the bulk of the time I am able to move about freely whilst talking to customers and attending to tasks around the store. On the occasions where I may be dealing with a busy period and attending to tasks where I am standing still or static at the counter for instance, I find that this becomes difficult for me to tolerate for longer periods. Thankfully, I do have considerable flexibility to move around in this role. I am fortunate enough to be working in a job where there is significant flexibility in standing, walking around, resting on a stool, sitting on a chair, and I can pace myself. There is always a manager or assistant manager around to help. I am able to sit down, or lean back against a stool. I find being able to walk around, rather than stand in a static position is most comfortable. I find myself sometimes standing in unnatural positions to compensate for pain and strains in my back. This has in turn affected my balance and it is easy for me to stumble or trip if I am not careful. I have specifically bought different walking footwear to help with this and am currently wearing hiking type shoes at work. I am lucky to have found this job. I have worked at other places in the past, such as JB Hi Fi, seven years as a manager and I know that that is a job where it would simply be too much for me constantly having to get up and down. Nor could I guarantee any other employer with that type of a job that I would be able to actually perform work on any given day given how my symptoms fluctuate. In my past experience, it is unlikely to find manager or supervisory roles which are not fulltime.”[25]
[25]PCB 42−43, paragraphs 31−33
How many hours per week can the plaintiff work “after injury”?
29The plaintiff is currently working at Beacon Lighting pursuant to a contract for 37 hours per fortnight, but some fortnights he works more than the 37 hours, and some fortnights he works less. Explanations are hard to come by but appear to be unrelated to his back injury. There is no evidence that reduced hours in any fortnightly pay period was because the plaintiff’s back injury meant he was unable to accept a shift, or unable to complete a shift. The lesser hours in some fortnightly pay periods in the last twelve months may relate to COVID-19, or some other reason. The periods when he worked more than 37 hours in a fortnight may be occasions when the plaintiff tried to test his capacity to do more hours; or may simply be occasions when he has worked more hours because his employer asked him to do so. A recent example was for the fortnight ended 4 April 2021[26] when he worked 41.5 hours (and was paid $1,168.13 gross, which equates to the equivalent of $30,371.38 gross per annum, which if accepted as his “after injury” earning capacity would mean that part of this application would fail). The plaintiff agreed that that fortnight is an example of a pay period where the boss asked him to do more hours.[27]
[26] PCB 229
[27]T32, L5
30Dr Benson has provided certification for return to work purposes. He continues to certify that the plaintiff is fit to work 20 hours per week, which is obviously 40 hours per fortnight and 3 hours more than the current employment contract. In his most recent report of 16 April 2021, Dr Benson said:
“He is limited to twenty hours per week and I note that he has tried to increase his hours on multiple occasions but the increases resulted in a flare up of his symptoms which have rendered them to be less manageable.”[28]
[28]PCB 104
And that -
“Mr Hankinson is currently able to do twenty hours per week, as you note he has tried to increase his hours and based upon the assessments that I have undertaken throughout the last seven years and in line with my current certification I do believe that twenty hours per week is a current reasonable reflection of Mr Hankinson’s maximum work capacity.”[29]
[29]PCB 104
31Mr Tobin SC submitted that Dr Benson, with the benefit of seeing the plaintiff over an extended period, has been actively involved in attempts to return the plaintiff to work, to test and assess what hours represent the level of his current work capacity and is in a unique position to opine as to residual capacity for work.[30] There is force in that submission. As Dr Benson sets out in his reports, he has been involved in the testing of the plaintiff’s capacity by the issue of certificates as appropriate when the plaintiff had sought to increase his hours. Ultimately Dr Benson has settled upon 20 hours as the residual capacity for work. I don’t understand that to mean it would be impossible for the plaintiff in any particular week to do more than 20 hours. I understand it to mean that based on trial and assessment, 20 hours per week is the reliable limit of the plaintiff’s “after injury” earning capacity assuming it to be exercised regularly on an ongoing basis.
[30]T29, L6−7
32But there is medical evidence before the Court that is different to the opinion of Dr Benson. In particular, the defendant relies on medical opinions from Mr Michael Dooley, orthopaedic surgeon and Dr Michael Baynes, occupational physician, as the “high point”[31] of it’s case. Based on those medical opinions, the defendant submitted the plaintiff “after injury” has a capacity to work at least 30 hours per week and as much as full time hours.
[31] T111, L3
33I pause to note that both Mr Dooley and Dr Baynes place restrictions on the type of work activities that the plaintiff can now undertake, consistent with the acceptance by the defendant that the plaintiff could not return to his pre-injury employment as a yardman, which must also equate to an inability “after injury” to return to similar full and unrestricted manual work.
34Mr Dooley expressed the opinion that currently the plaintiff “would not be able to carry out regular heavy physical work or work that involved a lot of bending, lifting and manoeuvring. He has a physical capacity to carry out light physical work and clerical duties. Such work would include his retail sales work with Beacon Lighting. From an orthopaedic point of view, I believe that Mr Hankinson would have a physical capacity to carry out this sort of work at least four days per week.”[32]
[32]DCB 48
35Dr Baynes has provided several reports. His opinion in those reports can be summarised as initially of the view that the plaintiff is currently fit for a range of jobs, namely those relied on by the defendant in the Recovre report, for up to 30 hours per week, with similar physical restrictions to those suggested by Mr Dooley.[33] However, having seen the video surveillance, he is then a little more optimistic, and in his last report says that the plaintiff can progressively build up to full-time hours over the next six months.[34]
[33]DCB 57
[34]DCB 66
36Balanced against those opinions is obviously the opinion of Dr Benson. In addition, the plaintiff relies on medical opinions from Professor Richard Bittar, neurosurgeon, and Dr Craig Mills, orthopaedic surgeon.
37Professor Bittar examined the plaintiff on one occasion and provided a report dated 7 January 2021,[35] in which he opined that the plaintiff has a capacity for suitable employment and is currently employed in such a role. He said “in my opinion his maximum work capacity is 15−20 hours per week in a very sedentary role with the ability to change postures frequently and to avoid bending, twisting or lifting more than very light weights”[36] and that his “current hours and duties with Beacon (typically 37−28 [sic] hours per fortnight) are a reasonable reflection of your client’s maximum work capacity”.[37]
[35]PCB 139
[36]PCB 143
[37]PCB 144
38Dr Mills provided three medical reports regarding the plaintiff. His first report is dated 31 March 2021. It is identical to his second report of 27 April 2021, save for one important change to the answer he gave to specific question number six.[38] That is a question seeking Dr Mills’ opinion regarding how many hours of work the plaintiff could currently perform. In the second report the answer was “probably up to 30 hours or so per fortnight at maximum seems likely and sustainable ongoing”, whereas in the first report the answer was “up to 30 hours or so per week”.[39]
[38]PCB 154
[39]Exhibit P1
39In part to seek to clarify the circumstances in which Dr Mills altered his first report, the defendant was given leave to cross examine Dr Mills. Dr Mills explained that the first report contained an error and had to be read in the context of the whole of the report and the other answers given by him, in particular his answer to question number seven,[40] being a question whether the hours at Beacon Lighting were a reasonable reflection of the plaintiff’s maximum work capacity. Dr Mills answered that question (in both reports) as “yes, this is probably his maximum capacity at the moment”.[41]
[40]T73, L30−31; T74, L1−3
[41]PCB 154
40I accept Dr Mills’ explanation of an error having unfortunately crept into the first report. It is understandable that the defendant wanted to test the circumstances of the altered report. At the end of the day a fair reading of the whole of the reports tends to the conclusion that the first report contained an error and Dr Mills had intended to answer the work capacity question as 30 hours per fortnight.
41Having said that, Dr Mills’ opinion that the plaintiff could work 30 hours per fortnight is, in isolation, also difficult to understand given that he was aware that the plaintiff had a contract for 37 hours per fortnight with Beacon Lighting. In response to a question from me as to how he arrived at 30 hours per fortnight he said it was really a “ballpark”[42] figure and his answer had to be taken in the context of the rest of the report.
[42]T87, L19−23
42Dr Mills was challenged in cross examination about his acceptance of what the plaintiff told him about his current symptoms and the work he undertakes at Beacon Lighting. This was particularly in the context of his examination findings of very little movement in the spine, despite Dr Mills having the benefit of the video surveillance[43] that showed the plaintiff at 5pm on 24 June 2020 assisting a customer of Beacon Lighting to load some large boxes into a car.
[43]Exhibit D1 – video surveillance of the plaintiff taken 24 June 2020
43Pausing here, the video surveillance does not show the plaintiff lifting heavy weights or doing anything that he says he cannot do. The boxes were of a size that made them awkward to be loaded into the customer’s car and the plaintiff is seen to bend and twist to try and load them into the car. In isolation, the video is not particularly remarkable. It is a not video that impacts on his credit and the defendant did not submit otherwise. Rather, the video was used to challenge the acceptance by Dr Mills of what the plaintiff had told him, in circumstances where Dr Mills acknowledged that the plaintiff’s range of movement in the video was greater than on his formal examination.[44]
[44]PCB 152; T77−78
44Dr Mills said in his oral evidence that the plaintiff presented in a straight-forward manner and he accepted what he had told him, in the context of the other material that he had been provided. He considered the video on the basis that the plaintiff has good days and bad days. He did not consider it indicated an inconsistency as such.[45] He also said of the video that “to be fair, it is actually not lumbar spine in that video and it’s from a lateral view, so I don’t think, to be fair, that it actually does show significant inconsistency with what he showed me”.
[45]T78, L24−31
45At the end of the day I consider that Dr Mills made appropriate concessions during his oral evidence. His evidence regarding the video surveillance included the concession that the plaintiff demonstrated a great range of movement in the video than he did on formal examination, as he had already noted that in his report. I accept his evidence that there was ‘no red’ flag, as it were, in any of the material he was provided to suggest that the plaintiff was an unreliable historian. The video does not demonstrate the plaintiff doing anything he says he cannot do. It is consistent, in my view, with the formal examination findings of basically all the doctors, that being of moderate restriction. I accept Dr Mills’ interpretation that the video is mostly demonstrative of movement of the thoracic spine. The cross examination was effective in testing the opinions expressed by Dr Mills, but it did not give me reason to reject Dr Mills’ opinions as to residual work capacity, bearing in mind that even if I was to reject his evidence about the range of movement, it does not mean that I cannot accept other aspects of his evidence, especially where there is corroborating medical opinion.
46Ultimately, I accept the combined opinions of Dr Benson, Professor Bittar and Dr Mills and their conclusions regarding the plaintiff’s residual capacity for work to be consistent with the hours the plaintiff is contracted for at Beacon Lighting. Those opinions are in many ways not dissimilar to the opinions of Mr Dooley and Dr Baynes, save for the question of residual hours of work. As mentioned, all the doctors place restrictions on the tasks that the plaintiff can now perform. The differences of opinion boil down to the number of hours the plaintiff can now work.
47Pausing again, at the end of the day it is a matter of judgment by the Court as to how many hours the plaintiff is now fit to perform – remembering that I am conducting an analysis as required to apply a gateway provision, which requires a judgment as to relative incapacity to be resolved after a consideration of the whole of the evidence.[46]
[46]Yirga-Denbu (op cit)
48In my judgment, the plaintiff’s permanent “after injury” work capacity is for no more than 20 hours per week (40 hours per fortnight) in the job he currently has at Beacon Lighting. This conclusion is arrived at based in particular on the medical opinions of Dr Benson, Professor Bittar and Dr Mills, which are consistent with the plaintiff’s evidence – which I accept – of his own experience of his work at Beacon Lighting, that when working the current hours he suffers pain and that when he has tried to work more hours he has had more pain and that impacts on his recovery.[47]
[47]T60
What about other jobs?
49This brings me to the next issue in dispute in this application, namely the alternate jobs that the defendant puts forward as “suitable employment” for the plaintiff and the rates of pay in those jobs.
50The defendant relies on four reports prepared by Recovre.[48] Those reports are described as “Suitable Employment Reports” prepared by Ms Janette Ash, an occupational therapist/injury management consultant. Those reports in combination set out five jobs (“the Recovre jobs”) said to be “suitable” employment for the plaintiff, taking into account his injury and restrictions, for various rates of pay. The jobs are as follows (together with the rate of pay):
(i)Radio (Logistics) Clerk – salary $68,000 including superannuation
(ii)Radio Clerk (Operations Support) – salary $30.77−$33.34 gross per hour depending upon experience
(iii)Customer Service/Ordering Clerk – salary $950 per week
(iv)Building Concierge/Information Officer – salary $65,000 gross per annum
(v)Production Clerk – salary $25 per hour gross.
[48]DCB 74−107 inclusive
51The defendant submitted that the Recovre jobs are within the plaintiff’s intellectual capacity. Broadly, in cross examination the plaintiff agreed that the intellectual and educational aspects of those jobs were all within his capability. For example, he was asked about the role of a production clerk and that being a role that intellectually he could easily perform. The plaintiff said:
“Yes, I’d say it’s similar to the previous three you’ve shown me; it looks, like I said, an office environment.”[49]
[49]T51, L7−12
52The sole issue, therefore, is whether the plaintiff is physically capable of undertaking those jobs. In all of the identified jobs, save for customer service/clerk, based on the nominated rates of pay, if the plaintiff undertook one of those jobs at 20 hours per week then he would fail to satisfy the statutory formula. In other words, working 20 hours per week in four of the jobs nominated by the defendant would mean that the plaintiff now fails to establish a loss of earning capacity of 40 per cent or more.
53In respect to the jobs identified by the defendant, the plaintiff’s counsel said in submission that:
“Looking at the range of alternative employments we say that those alternative employments all have components in them which would be an aggravator on the plaintiff’s evidence of his symptoms.
HIS HONOUR: So, does that mean, Mr Tobin, that none of those alternate employments, even say for 37 hours a fortnight, would be suitable employment?
MR TOBIN: No, it doesn’t say that. What we say is, they all have aggravates, but the plaintiff has been exercising his earning capacity in a particular employment and he knows the range of it. Those other employments are a range of theoretical exposures that he would have and which all contain aggravating factors.
None of those employments, if modified to suit him, would appear to be any different in a significant way to his current employment. His current employment, to the extent that he’s exposed to various factors, is an employment which limits him to those hours.
We say the court should accept his current employment rather than the theoretical capacity he may have in another employment where the restricting capacity is not the intellectual involvement but his pain endurance.”[50]
[50]T129, L8−31
54The plaintiff’s counsel said further in submission:
“We just urge the court that his retained earning capacity as he has been exercising it over the last three years is something that the court should accept and, upon the basis of the figures that exist, the court should accept that being, we say, the best evidence you could possibly have for the court, you should accept that that retained earning capacity is a capacity that does not enable him to earn 60 per cent of his pre-injury earning capacity.”[51]
[51]T131, L15−23
55The plaintiff’s submissions require an analysis of his evidence during cross examination regarding the jobs identified by Recovre as now suitable for him. The plaintiff gave evidence that in order to perform those jobs he would need a sit-and-stand desk and the ability to alternate his posture and position.[52] He said he could not stand in the one position, as it makes him really uncomfortable.[53] He said the problem he has is more with the sitting side of things, and so he would need to move around quite often.[54] He said:
“I could do the work at the desk if needed be but I’d still need to move around, so I don’t think they have that as an option on any of these jobs. They seem to be desk-based jobs.”[55]
[52]T44, L4−15
[53]T46, L8
[54]T46, L18
[55]T46, L26−29
56He said further:
“Well, I’m doing that at my current job now. So, a lot of these tasks that are in these jobs, this is what I’ve been doing at my current job but I have the added benefit of being able to move around. So, would I try these jobs? Well, yes, I’ve tried them, I’m trying them now. ... These are the jobs – these are the tasks I’m doing at work now when I’m at Beacon, sit and stand.”[56]
[56]T47, L1−9
57He said that in his current employment “I don’t work at a desk, so that’s a big difference.”[57] In respect to the desk-based jobs, he said:
“Once I’ve been sitting past that – past that 45 minute mark I really start to struggle.”[58]
[57]T53, L5−6
[58]T53, L11−13
58In re‑examination he said:
“ From your understanding of those employments compared with what you are currently doing now, insofar as accommodating your restrictions do any of those employments accommodate your restrictions any better than your current employment?---I’d say accommodating, no; if anything it’s either equal to or less than.
Have you, since you have started work with Beacon or even before that, looked at jobs that would be more accommodating of your capacity or incapacity?---Yes. The idea of driving initially was somewhat, I thought, and that’s why I tried the driving job with First Choice; that was the initial to see what I was capable of doing and what I wasn’t capable of doing, and that definitely pointed out that driving wasn’t for me.
Have you made applications or given considerations to a range of employments over the last seven years as to what you can and can’t do?
---I’ve applied for numerous appointments/positions.
Have you identified any employment that you think you could do with greater hours or greater income than what you’re currently doing with Beacon?---I think working at Beacon has showed me my limitations, so it would have to be similar to what I’m doing now, I don’t know (indistinct).
Have you identified anything that is better than what you’re doing at Beacon now as far as you’re capacity to do it and the earnings you could make?---The job examples provided, there’s issues with all of those positions. As far as me looking for other work goes, I do still look for other positions, I’ve not seen anything that’s similar to what I’m doing now really.”[59]
[59]T61, L1−31
59The plaintiff bears the evidentiary onus to establish the requisite 40 per cent loss for the purposes of this statutory formula. However, in respect to the Recovre jobs, the defendant bears the evidentiary onus to establish the existence of those jobs and that they are within the plaintiff’s “after injury” capacity.[60]
[60]Giankos v SPC Ardmona Operations Ltd (2011) VR 120 at paragraph [115]
60I conclude that a consideration of the whole of the evidence, including the plaintiff’s own evidence, establishes that the Beacon Lighting job is the best evidence of his “after injury” work capacity and the Recovre jobs are not. I have arrived at that conclusion because:
(a) This is not an application in which it is necessary to delve into theoretical considerations of residual capacity for employment. The plaintiff attempted a return to work with the defendant and was unable to progress beyond twelve hours of modified duties. Further, he next attempted a return to work at First Choice, but could not cope with prolonged sitting to drive the van and could not cope with full-time hours. Finally, the plaintiff, to his credit, has obtained a job at Beacon Lighting, in which he has attempted various hours, in consultation with his general practitioner, before arriving at a contract for thirty-seven hours per week;
(b) The plaintiff’s current employment at Beacon Lighting is in my opinion the best evidence when it comes to a job for which the plaintiff is now physically suited. He has a degree of flexibility to sit, stand and move around. It does not involve heavy lifting. There is a limit to the number of consecutive days that he is required to work. It is an ideal “after injury” job for him.
(c) All doctors agree that the plaintiff has residual physical restrictions for the type of work that he can now perform;
(d) Dr Benson’s opinion is particularly informative in circumstances where he has liaised with the plaintiff in respect to a return to work and the hours of work at Beacon Lighting;
(e) Even in his current employment the plaintiff suffers pain and needs time to recover between shifts;
(f) I take into account the opinion of Professor Bittar that the plaintiff does have “very limited capacity for suitable employment and is currently employed in such a role” and that his maximum work capacity is “15-20 hours per week in a very sedentary role with the ability to change postures frequently and to avoid bending, twisting or lifting more than very light objects”.[61] I also note the opinion of Professor Bittar[62] as to why, in his opinion, the plaintiff does not have a realistic capacity for the jobs of radio (logistics) clerk, radio clerk/operations support or for customer service/ordering clerk; and
(g) I take into account the opinion of Dr Mills[63] in which he also excludes the Recovre jobs for the reasons given.
[61]PCB 143
[62]PCB 144
[63]PCB 155 and 156B-156C
61I accept the submission of the plaintiff that regardless, it is unnecessary in this application to consider theoretical job options, all of which I conclude are in fact more onerous than the actual employment that he has managed to obtain. He is, in my opinion, engaged in “suitable employment” at Beacon Lighting at the limit of his capacity. The Recovre jobs are seemingly “real jobs” but, some of them are for full-time positions and there is no evidence that an employer would accommodate the plaintiff in a part-time position, or with the restrictions that he currently has. Once again bearing in mind that I am dealing with a gateway provision, in my view, the plaintiff has satisfied his evidentiary onus by obtaining and undertaking the jobs at Beacon Lighting, a job that is more suitable than any of the Recovre jobs. I do not accept the plaintiff can perform any of the Recovre jobs, because those jobs are either theoretical jobs (for example, whether the full- time jobs would be offered at part-time hours) or are simply physically beyond his capacity.
The earnings at Beacon Lighting?
62I have concluded that the current job at Beacon Lighting most fairly reflects the plaintiff’s “after injury” capacity for suitable employment.
63I have also concluded that the plaintiff has an “after injury” capacity of 20 hours per week.
64The next question to be answered is what are the gross annual earnings if the plaintiff was working 20 hours per week at Beacon Lighting?
65For the full financial year ended 30 June 2019, the plaintiff earned $30,121 gross in his employment with Beacon Lighting. If I accept that figure to reflect his “after injury” earning capacity, then the application fails. But I do not accept that figure as it relates to a period where the plaintiff attempted to increase his hours – in conjunction with Dr Benson – as reflected in the payslip summary.[64]
[64] PCB 227-228.
66I was told, and the defendant accepted, that for the financial year ended 30 June 2020, the plaintiff earned $27,930 gross with Beacon Lighting, which figure would have him approximately $417.70 below the threshold for the purposes of the statutory formula and the application would succeed.
67The plaintiff tendered his pay slips in summary form for the current financial year up to 4 April 2021.[65] By reference to that summary, from 15 June 2020 to 4 April 2021 covers 21 fortnightly pay periods in which the plaintiff earned $20,209.98 gross,[66] which equates to weekly earnings of $481.19 gross, $962.38 gross per fortnight, or gross annual earnings of $25,021.88, which is also below the sixty per cent threshold. But, that pay period/summary does not reflect the plaintiff working 37 hours each fortnight. There are several fortnights of no hours worked, probably due to the COVID-19 lockdown, when there was less sales work[67] and several fortnights of less than 37 hours worked. Out of the 21 fortnightly pay periods, 14 are for 37 hours. The balance is no hours or less hours.
[65] The pay summary at PCB 299 in fact commences 15 June 2020
[66]PCB 229
[67]T33, L29
68Therefore, it is difficult to calculate the plaintiff’s current “after injury” earning capacity at Beacon Lighting, on an annual basis, because his pay fluctuates due to the variables associated with the higher rate of pay for weekend work and public holidays, together with the fact that his hours have varied despite the contract for 37 hours per fortnight, probably due to the COVID-19 lockdown.
69The payslip summary[68] demonstrates the variable nature of his hours and pay. In the current financial year, on the occasions when he worked a 37‑hour fortnight, the plaintiff was paid as little as $903.81 and as much as $1,043.53, probably due to whether or not he worked a public holiday. The lower figure of $903.81 equates to gross annual earnings of $23,499.06. The higher of $1,043.53 equates to gross annual earnings of $27,131.78. An average of those two figures is $973.67 which equates to $25,315.42. Any of those figures are below the threshold and he would satisfy the statutory formula.
[68] PCB 229
70The plaintiff submits that in his current employment and based on the payslips for the year to date, if it is accepted as the evidence of the limit of his “after injury” earning capacity, then he satisfies the statutory formula.[69] But that fails to take into account the fact that I have concluded that 20 hours per week is his “after injury” capacity.
[69]Mr Tobin’s mathematics was a little different to mine, but the end result is the same
71If the amount of $973.67 – being the average rate of pay this year for a 37 hour fortnight - is divided by 37 hours, that produces an average hourly rate of pay of $26.3154. I adopt that figure as the hourly rate of pay based on an averaging of the plaintiff’s more recent pay slips. To do so, bearing in mind again that this is a gateway provision, it is in my view the appropriate way to arrive at a figure that most fairly reflects the residual earning capacity in circumstances where the plaintiff is required to undertake some weekend or public holiday work to earn that level of income. It would not be appropriate to pick the lowest rate of pay based on week day hours and equally I do not consider it appropriate to simply select the highest hourly rate based on weekend or public holiday rates of pay, bearing in mind also that the calculation is required to be converted to an annual rate of pay.
72If $26.3154 per hour is accepted, as I do, as the figure that “most fairly reflects” the “after injury” hourly rate of pay and if that is then multiplied by 40 hours per fortnight, that equates to $1,052.616 per fortnight, or $27,368.016 gross per annum if multiplied by 26 weeks (or $27,473.2776 gross per annum if multiplied by 26.1 fortnightly periods in a 12 month period) and is below the threshold figure of $28,347.70.
73Accordingly, I am satisfied that the plaintiff has the requisite 40 per cent loss for the purposes of the statutory formula, as his “after injury” earning capacity is, on my calculations, no more than $27,473.2776 and that is (just) below the threshold figure.
74Therefore, leave will be granted to the plaintiff to commence a proceeding for both pain and suffering and economic loss damages.
75I will hear the parties as to the question of costs.
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