Harborne v Victorian WorkCover Authority
[2024] VCC 378
•28 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-01397
| ROBERT HARBORNE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 September 2023 | |
DATE OF JUDGMENT: | 28 March 2024 | |
CASE MAY BE CITED AS: | Harborne v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 378 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – paragraph (a) and (c) – whether work capacity – suitable employment – whether loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 107; Aluthgamage v Select Care Personnel Pty Ltd [2012] VSCA 111; Barwon Spinners v Podolak (2005) 14 VR 622; Capper v Munday Sales Pty Ltd [2013] VCC 1015; Collins v Australian Milling Group Pty Ltd [2020] VCC 1103; Dundar v Bas [2019] VSCA 315; Dwyer v Calco Timbers Pty Ltd (No 2) [2018] VSCA 260; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Hayhill Pty Ltd v Hodge [2006] VSCA 194; Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1; Lepp v Victorian WorkCover Authority [2023] VCC 905; Richter v Driscoll [2016] VSCA 142; Roleff v Chubb Insurance Co of Australia Pty Ltd [2006] VSCA 21; State of Victoria v Rattray [2006] VSCA 145; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35.
Judgment: Application granted for pain and suffering and loss of earnings under paragraph (a) and paragraph (c)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G. Chancellor Ms M. Lang | Maurice Blackburn |
| For the Defendant | Mr R. Kumar | Wisewould Mahoney |
HIS HONOUR:
Introduction
1Pursuant to section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) the plaintiff seeks the grant of a Serious Injury Certificate to permit him to commence common law proceedings to recover damages for both pain and suffering and economic loss. The plaintiff was represented by Mr Chancellor of counsel, leading Ms Lang of counsel. The defendant was represented by Mr Kumar of counsel.
2The application is brought pursuant to paragraphs (a) and (c) of the definition of “serious injury” as that term is defined in section 325(1) of the Act. Specifically, in regard to paragraph (a), the impairment of body function relied upon by the plaintiff is the left foot and/or left ankle. The Particulars of Injury relied on the following:
(a) Left foot, including:
i. Markedly comminuted moderately displaced fracture to the mid to proximal shaft and base of the fifth metatarsal bone. Subluxation dislocation of the articulation between the cuboid and the fifth metatarsal bone base. Pain and swelling in the left foot. Restriction in movement of the left foot.
And/ or
(b) Left ankle, including:
i. Fracture fragments subjacent to the tip of the medial malleolus. Multiple tiny bony fragments. Intra-articular fracture of the medial talar head. Damage to the tibialis posterior tendon sheath. Damage to the flexor retinaculum. Pain, swelling and restriction in movement of the left ankle. Surgical scarring.[1]
[1] Particulars of Injury filed 11 May 2023.
3In respect of paragraph (c), the plaintiff claims “permanent severe mental or permanent severe behavioural disturbance or disorder” by way of psychological injury.
4In addition to his claim under paragraphs (a) and (c) of the definition of serious injury, the plaintiff alleges that he has suffered a permanent loss of earning capacity of 40 per cent or more.
5The defendant did not contest the plaintiff’s reliance on paragraphs (a) and (c) of the definition of serious injury, and although it did not concede pain and suffering, Mr Kumar submitted that the defendant’s principal focus was the question of economic loss.[2]
[2] Transcript (“T”) 7, Line (“L”) 14.
Relevant Legal Principles
6The following statements represent settled law. The Court must not grant leave to commence common law proceedings unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in section 325(1) of the Act.[3]
[3] Section 335(5) of the Act.
7The definition of “serious injury” contained in section 325(1) of the Act reads:
“Serious injury” means –
(a) permanent serious impairment or loss of a body function; or
…
(c) permanent severe mental or permanent severe behavioural disturbance or disorder…
8To establish a serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by him arose out of, or in the course of, or due to the nature of employment;[4]
[4]Section 327 of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622 (“Barwon Spinners”).
“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[6]
[5] Barwon Spinners (2005) 14 VR 622, 638 [33].
[6] Section 325(2)(c) of the Act.
9The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
10The question of whether an injury satisfies the narrative test is largely one of impression or value judgment.[7]
[7]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628; see also Sabo v George Weston Foods [2009] VSCA 242, [67].
11In determining the “consequences” of the injury, the Court is required to consider them to this plaintiff, viewed objectively, arising from the injury.
12In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[8]
(b) must assess whether “the injury” is a “serious injury” as at the time the application is heard;[9]
(c) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[10]
[8] Section 325(2)(h) of the Act.
[9] Section 325(2)(j) of the Act.
[10] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
13In TTB SMS Pty Ltd v Reading,[11] Tate and T Forrest JJA, had occasion to emphasise the essential aspects to which consideration is to be given in a serious injury application in a pain and suffering case which are:
(a) serious injury means permanent serious impairment or loss of a body function;[12]
(b) an impairment shall not be held to be serious unless the pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;[13]
(c) in assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[14]
[11] [2020] VSCA 203.
[12] Section 325 of the Act.
[13]Section 325 of the Act. This formulation picked up the language in Humphries, which concerned similar provisions in the Transport Accident Act 1986.
[14]Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181, [44] per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] per Ross AJA, quoting Dwyer [2008] VSCA 260, [27]).
14When a plaintiff asserts he has suffered a serious injury by reference to a loss of earning capacity, the additional threshold he or she must establish is at the date of the decision:
(a) he or she has sustained a loss of earning capacity of 40 per cent or more; and
(b) he or she will, after the date of the decision, continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more.
15As these reasons will later address, a substantial argument arose between the parties as to the method of determining permanence. Ultimately, however, as I will explain, the resolution of the question is moot, because I am satisfied the plaintiff has no work capacity for suitable employment.
The Documentary Evidence
16The plaintiff relied on the following evidence:
(a) Two affidavits of the plaintiff dated 13 October 2021 and 30 August 2023;[15]
[15] Exhibit P1, Plaintiff Court Book (“PCB”) 3-14.
(b) Two reports of Dr Kira Turlakow (general practitioner) dated 30 January 2023 and 10 July 2023;[16]
[16] Exhibit P2, PCB 15-30.
(c) Report of Daniel Droscher (physiotherapist) dated 16 January 2020;[17]
[17] Exhibit P3, PCB 31-34.
(d) Letter of Mr Gerard Bourke (orthopaedic surgeon) dated 27 February 2019;[18]
[18] Exhibit P4, PCB 35.
(e) Report of Dr Amy Touzell (orthopaedic surgeon) dated 7 April 2020;[19]
[19] Exhibit P5, PCB 36-39.
(f) Letter of Dr Anthony Prendergast (anaesthetist) dated 28 November 2019;[20]
(g) Report Ms Jeni Kousoulinis (psychologist) dated 2 June 2023;[21]
(h) Report of Dr Eman Awad (occupational physician) dated 18 January 2023;[22]
(i) Report of Dr Justin Lewis (psychiatrist) dated 15 May 2023;[23]
(j) Report of Dr William Edwards (orthopaedic surgeon) dated 13 April 2023;[24]
(k) Report of Ms Suzanne George (occupational therapist) dated 16 July 2023;[25]
(l) Summary of the plaintiff’s earnings;[26]
(m) Flexi Personnel earnings reports dated 12 September 2023 and 14 September 2023;[27]
(n) Certificate of capacity dated 21 August 2023;[28] and
(o) Summary of jobs applied for by the plaintiff after the injury.[29]
[20] Exhibit P6, PCB 40.
[21] Exhibit P7, PCB 41-42.
[22] Exhibit P8, PCB 43-48.
[23] Exhibit P9, PCB 49-57.
[24] Exhibit P10, PCB 58-68.
[25] Exhibit P11, PCB 69-84.
[26] Exhibit P12.
[27] Exhibit P13, PCB 88-93.
[28] Exhibit P14, PCB 94-95.
[29] Exhibit P15, Defendant Court Book (“DCB”) 22-28.
17The defendant relied on the following evidence:
(a) Two reports of Dr Sean Low (occupational physician) dated 16 June 2023 and 30 August 2023;[30] and
(b) Nabenet Suitable Employment Report dated 11 July 2023.[31]
[30] Exhibit D1, DCB 1–13.
[31] Exhibit D2, DCB 31-41.
18I have read and had regard to the lay and medical evidence relied on by the parties together with the affidavit evidence and the cross-examination of the plaintiff, as well as the final addresses of counsel. At the conclusion of the oral hearing, the parties sought the opportunity to serve written submissions further addressing the economic loss claim, which I have also considered.
The Plaintiff’s Affidavits
The Plaintiff
19The plaintiff was born in 1964. He is married. He has an extended family from a first marriage who reside in the United Kingdom. In addition, his wife has two adult children, and grandchildren. He completed schooling to the age of 16 and was involved in a variety of work before migrating to Australia in 2012. Prior to coming to Australia, he was an exponent of karate and owned a karate club in Birmingham, England, where he taught at night.
20In Australia, the plaintiff worked for Thorn Australia, and later Five Ways Food Services, as a delivery driver. Prior to his injury, he described his general health as good, and he continued to engage in the practice of karate. He deposed that although he suffered a back strain in May 2016, with physiotherapy, it settled quickly.
21He commenced employment with Leek Enterprises as a delivery driver on 21 September 2016. He made deliveries to The Cheesecake Shop each day. He drove a medium rigid truck.
22The plaintiff opened a karate club in 2017, but it proved unsuccessful, nonetheless, he continued his practice of karate.
The Incident of Injury
23On 2 November 2018, the plaintiff was attending to his last delivery for the day to The Cheesecake Shop in Werribee. He parked outside the shop. His truck was leaning slightly to the left due to the camber of the road. He was using a pallet jack to pull a pallet that was stacked with bags of flour and sugar high above his head height. Using the pallet jack he pulled the pallet straight back to the tailgate. He then pulled it to the left so that it would fit onto the tailgate. However, the pallet gained momentum, kept rolling and pushed him off the side of the tailgate. He said he fell about one and a half metres off the tailgate and landed heavily in the gutter on his left foot. He rolled onto his body and ended up on the pavement. He says that he experienced severe pain in his left foot and ankle and could not stand. He sat on the ground for some time in a great deal of distress. Eventually, he managed to lower the tailgate and complete the delivery, but he was limping and in a lot of pain. He said that he had severe pain when he was pushing in the clutch of the truck, but returned to the factory where he dropped off the truck. When he got home, he took off his boot. His left foot and ankle were severely swollen.
Diagnosis of Injury and Treatment
24That night, the plaintiff’s wife drove him to Frankston Hospital. His left foot was swollen and bruised, and he could not bear weight. He had an x-ray of his:
(a) left ankle which he believed showed fracture fragments sub adjacent to the tip of the medial malleoulus, and marked soft tissue swelling over the lateral malleoulus; and
(b) left foot which he believed showed a markedly comminuted moderately displaced fracture to the mid to proximal shaft and base of the fifth metatarsal bone, with likely subluxation/dislocation between the cuboid and fifth metatarsal bone base.
25The plaintiff’s left foot and ankle were put in a plaster back slab, and he was given Endone and paracetamol. He remained in a great deal of pain.
26On 16 November 2018, the plaintiff attended Frankston Hospital. The plaster was removed and his left foot and ankle were put in a CAM walker. He said that his left foot and ankle remained very sore and swollen.
27On 27 November 2018, he had a CT scan which he believed showed multiple tiny bone fragments adjacent to the medial malleolus, and intra-articular fracture of the medial talar head, a severely comminuted fracture of the left fifth metatarsal, a small flake fracture of the tip of the calcaneum and a calcaneum spur.
28On 8 December 2018, the plaintiff attended his general practitioner (“GP”), Dr Kira Turlakow who referred him to Mr Gerard Bourke, orthopaedic surgeon. He saw Mr Bourke on 12 December 2018. Mr Bourke performed surgery on 17 December 2018 by way of an arthroscopic removal of loose bodies, removal of loose fracture fragments of the talar head, open reduction and internal fixation of the fifth metatarsal, debridement within the ankle of a distal ankle tibial osteochondral lesion and repairs of the tibial posterior tendon sheath and flexor retinaculum.
29The plaintiff said that he experienced a lot of pain following the surgery and was taking Palexia and Oxycodone. He was in plaster for two weeks, and then in a CAM boot. He was referred for physiotherapy with Mr Daniel Droscher.
30The plaintiff had an x-ray on 25 January 2019, which he believed showed remnant bony fragments around the talas.
31The plaintiff was reviewed by Dr Turlakow on 18 February 2019, at which time he said he was still unable to weight bear, and his left foot and ankle remained stiff and painful.
32On 27 February 2019, Mr Bourke diagnosed complex regional pain syndrome and commenced the plaintiff on Endone and Targin. He had a cortico-steroid injection into his left ankle region, but said that this did not help. He commenced hydrotherapy. However, he had continuing pain, sensitivity, swelling and skin colour changes, especially in the ankle region. He said he was limping.
33Mr Bourke moved interstate, and so the plaintiff was referred to another orthopaedic surgeon, Ms Amy Touzell, whom he first saw on 26 May 2019, at which stage she reported that he was still wearing a CAM boot and taking Targin and Endone. Ms Touzell thought that some of the plaintiff’s pain may have been due to metalware left in his little toe. She performed surgery on 17 June 2019 to remove the plates and screws, and washed out bony fragments from the left foot region. The plaintiff commenced on Valium and resumed physiotherapy. He also took Targin, a combination of ibuprofen and paracetamol, and Nuromol, a prescribed opioid.
34The plaintiff was reviewed by Ms Touzell on 9 September 2019. At that time, he was undertaking both physiotherapy and hydrotherapy twice a week. He said that he was continuing to experience bad flareups of pain, but his mobility was improving.
35In early October 2019, the plaintiff said he experienced increased pain, and his physiotherapist, Mr Droscher, strapped his left ankle and foot. He took Endone in addition to Targin and Nuromol. He said that he began to experience ankle pain, and a stabbing pain in his foot.
36The plaintiff was reviewed by Ms Touzell on 19 November 2019. He presented with some pain, swelling and vasomotor changes in his left foot and ankle. He was still limping and he said his foot was very sensitive, for example, to running water in the shower. He was unable to stand or to walk for more than 30 minutes, due to increasing pain.
37The plaintiff was referred to a pain specialist Dr Anthony Prendergast, whom he saw on 28 November 2019, and who recommended that he continue with physiotherapy and hydrotherapy.
38In early 2020, the plaintiff’s physiotherapist Mr Droscher, recommended a gym and swim program. However, the plaintiff’s WorkCover payments had ceased. The plaintiff said that WorkCover had also stopped his medical expenses and would not pay for counselling. He said that he was experiencing increasing anxiety and stress and was drinking too much due to pain and worry.
39In February 2020, the plaintiff commenced on Pristiq. He also came to attend on a psychologist whom he continued to see on a regular basis. He said he was having difficulty sleeping, and if he knocked his foot or ankle, or his partner knocked it, he experienced sharp pain. He often was required to sleep in another bed and this occasioned stress to his relationship.
Retraining and Employment
40In September 2020, the plaintiff commenced an online Certificate IV Disability Support Worker course with an on organisation called ‘Inspire Education’. He said his involvement in the online course improved his self-esteem, and he started to feel more himself, such that he “tried to mow the lawns” but as a result he suffered bad stabbing pain in his foot.[32] Since then, his partner’s grandson has done the mowing.
[32]Exhibit P1, PCB 8, paragraph 25.
41The plaintiff continued with his online course and he managed a one-day CPR and first aid course. He said he continued to suffer from persistent pain and sensitivity in his left foot, as well as swelling, if he did too much, and his sleep was disturbed.
42In his first affidavit, the plaintiff deposed that he completed the syllabus for his online disability support worker course in August 2021. He applied for disability support worker jobs on a part-time and casual basis. At that time he thought he could work perhaps up three days a week, four hours per day. He put it this way:
if I am on my left ankle and foot for too long it becomes very sore and swollen. Half days would be my maximum and I would need days off in between to recover. My left foot and ankle continue to be sore and swollen. I need to rest and elevate on a regular basis.[33]
[33]Exhibit P1, PCB 8.
43In his second affidavit, the plaintiff deposed that Inspire Education collapsed financially, and he was unable to submit his outstanding modules, or obtain his results. He said that he did not possess the financial wherewithal to finish the course with another provider.
44The plaintiff has not obtained any work in the disability support area, however, he deposed that he had applied for many part-time administrative assistant and customer service jobs, but had been wholly unsuccessful in them all.
45The extent of any medical certificates of capacity exhibited as evidence in the hearing was the most recently issued certificate by Dr Turlakow, that certifies the plaintiff fit to work up to 20 hours per week, in a job where he can sit or stand as may be required.[34]
[34] Exhibit P14, PCB 94-95.
46The plaintiff said he has received job seeking assistance from ‘Workforce Australia’ who had recently applied for a driving job on his behalf, but he had to tell the prospective employer that he was unfit for such work. He said that he does not know how he would cope with administrative assistant or customer service work, as he only possesses basic computer skills, and he types slowly.
Consequences of injury
The First Affidavit
47In October 2021, the plaintiff was taking Targin, perhaps one tablet every four days or so, and Nuromol most days. He said he usually slept in a separate bed to his partner. He said he continued to attend his psychologist on a regular basis because, as a result of his injury, he was struggling with motivation, and some level of anxiety and depression. He was taking Valium on occasions and would go out shopping with his partner in order to “get out of the house.”[35]
[35]Exhibit P1, PCB 9.
48The plaintiff said he has been unable to resume karate, which he described as a major loss, as it has been his passion since his 20s. He said he used to jog 3 kms about twice per week but can no longer do so. He said it is very difficult for him to drive a manual car for more than a short period. He cannot play soccer, football or basketball with his partner’s grandchildren because of his lack of mobility. He said he no longer bike rides and he is restricted in his ability to help in the garden. He said he has tried some vacuuming and mopping, but this puts a lot of stress on his foot. Kneeling or squatting is also very difficult, as is climbing or traversing uneven surfaces.
49The plaintiff said that he flew to England to visit his children and grandchildren in 2019, but suffered a lot of pain and swelling in his left ankle and foot.
The Second Affidavit
50In his second affidavit, the plaintiff mentioned a trip to England in October 2022 to attend his nephew’s wedding. He said that as a result of his foot and ankle swelling on the flights, on arrival he had a lot of difficulty walking. He said he was unable to drive a hire car and he could not dance at the wedding reception.
51The plaintiff says that his mental state remains poor with a lowered mood, mood swings, irritability, agitation and at times, anger, reduced confidence, lack of motivation and reduced memory and concentration. He has difficulty getting to sleep because of worry and anxiety. He believes he is socially withdrawn. He rarely attends restaurants because of anxiety and feeling uncomfortable, and sometimes he will not attend with his wife to visit grandchildren because he does “not feel up to it.”[36]
[36] Exhibit P1, PCB 12, paragraph 5.
52The plaintiff said he has gained about 10 kgs in weight since his injury which he attributes to reduced activity. He has limited mobility and at times he limps. He has difficulty with prolonged walking, going up and down stairs, and climbing in and out of the bath, or shower, or a car. He is unable to assist his wife with household duties as he would like. He says that due to his tossing and turning and waking with pain, they generally sleep in separate beds to the understandable detriment of their intimate relationship.
53The plaintiff said his symptoms have remained consistent and he believes that at best, he could only work part-time. He described suffering from pain in his left foot and ankle most of the time, made worse by activity and accompanied by a stabbing pain and tingling in the region. His ankle and foot swell during the day and remain stiff and painful. His sleep is regularly disturbed by pain.
Current Treatment
54The plaintiff continues to attend his GP monthly. He takes Targin Slow Release once per day, Nuromol twice per day, and Endone for more severe pain on average about every second day.
55He continues to see his psychologist on about a monthly basis, and earlier in 2023, he was prescribed Escitalopram 10 mg for his anxiety and depression which he continues to take.
Plaintiff Medical Evidence
Dr Kira Turlakow
56The plaintiff’s GP, Dr Turlakow, provided two reports dated 30 January 2023 and 10 July 2023.[37]
[37]Exhibit P2, PCB 15-30.
57In her first report, Dr Turlakow expressed the opinion that the plaintiff’s prognosis was poor, as he has “essentially not improved since surgical intervention dealt with the initial accident in 2018 and 2019.” She went onto say that “CRPS is a chronic, indolent condition which is only minimally responsive to any treatment. Considering the length of time between diagnosis and the present day I believe Mr Harborne’s condition will not ameliorate or improve into the future. At best he will learn to live with his disability.”[38]
[38] Exhibit P2, PCB 18.
58In her report dated 10 July 2023, Dr Turlakow noted that the plaintiff’s complex regional pain syndrome had been “reviewed and supported by a number of specialists both orthopaedic surgeons and consultant physicians,” and that the plaintiff had gone “on to trial a variety of conservative and innovative treatments with minimal improvement despite maximum effort.”[39]
[39] Exhibit P2, PCB 29.
59Dr Turlakow added:
As a result of the chronic nature of his physical condition and the constant pain he experiences, Mr Harborne has also been diagnosed with a psychiatric disorder.
- Disorder with mixed anxiety and depressed mood - Persistent.[40]
[40] Exhibit P2, PCB 29.
60In Dr Turlakow’s opinion:
From a physical point of view Mr Harborne’s conditions are in the severe range of impairment. He is in constant intractable pain. The pain is both neuropathic and nociceptive. He has with [sic] a decreased capacity for easy mobility, and he has a clear uneven gait.[41]
[41] Exhibit P2, PCB 29.
Ms Jeni Kousoulinis
61The plaintiff’s treating psychologist, Ms Kousoulinis, provided a report to his solicitors dated 2 June 2023.[42]
[42] Exhibit P7, PCB 41-42.
62Ms Kousoulinis noted that Dr Simone Ryan, a consultant occupational physician, in a report dated 28 March 2022, confirmed a diagnosis of complex regional pain syndrome, and the plaintiff’s various interventions had included corticosteroid injection, but it had not helped.[43] Ms Kousoulinis went on to say that the plaintiff’s “conditions are permanent and his symptoms significantly compromise his daily living, including work capacity.” She reported that the plaintiff was experiencing “significant psychological distress and meets the criteria for a DSM-5 diagnosis of adjustment disorder, with mixed anxiety and depressed mood - Persistent (Chronic). Consistent with presentation, his functioning is significantly compromised by his symptoms.”[44] Ms Kousoulinis also said that the plaintiff’s:
…adjustment disorder, specifically his symptoms of anxiety and depression, are due to the direct physiologic effects of his physical injury. There are multiple complex bio-psychosocial factors which impact his ability to cope with pain. The perceived negative association of chronic pain, combined with chronic anxiety, result in unhelpful behaviours which restrict his daily functioning. Specifically, multiple interventions to correct his physical injury, have not ensued recovery, with minimal diminution of symptoms. Consistent with persistent chronic adjustment disorder, health concerns, specifically pain, have assumed a central role in his life. The distress experienced, is principally focused on his levels of pain and its significance on his lifestyle, specifically his daily functioning.[45]
[43] Exhibit P7, PCB 41.
[44] Exhibit P7, PCB 41.
[45]Exhibit P7, PCB 41-42.
Dr Eman Awad
63Dr Awad is a consultant occupational medicine physician who performed a clinical assessment of the plaintiff on 18 January 2023.[46] Dr Awad reported that the plaintiff suffers from intermittent pain in his left ankle. The plaintiff reported experiencing periods of time when he is pain free, however, pain is elicited with any level of activity of any intensity. He told Dr Awad he experiences a stabbing pain in his foot the severity of which he assessed as 8-9/10. He described a tingling sensation in the lateral aspect of his foot, and allodynia, with any normal touch provoking pain. He said his foot was stiff and was worse in the mornings and after prolonged inactivity.
[46] Exhibit P8, PCB 43-48.
64On the matter of the plaintiff’s functional capacity post injury, the plaintiff told Dr Awad that:
…he can walk approximately 20 minutes and does not have a walking aid. He walks at a slower pace than his wife. His sleep is disturbed and his wife stated that she is no longer able to sleep in the same bed as him due to his frequent wakes, now having to sleep in the spare room. He indicated he is able to stand for approximately 10 to 15 minutes. Climbing stairs is particularly challenging and he avoids this where possible. He can no longer able [sic] to climb a ladder. He tells me that he has had recurrent falls, and that he has had to change his vehicle to an automatic to enable him to continue to drive. With respect to household chores, he tells me is no longer able to undertake these, especially activities such as gardening with the burden of falling towards his wife.
From a mental health perspective, he tells me that he has low mood, irritability and anger, which he states his psychiatrist diagnosed him with an adjustment disorder. He tried an antidepressant and/or diazepam to aid his symptoms. He reflected he has become socially withdrawn, but denied any form of self-harm or suicidal ideation. He tells me that his motivation is low and he is saddened that he cannot participate in his previous hobbies which he enjoyed. He tells me he feels that he is no longer able to contribute to the marriage or the household causing him increasing levels of guilt which negatively compounds his mental health…[47]
[47] Exhibit P8, PCB 45.
65The plaintiff told Dr Awad that he had reduced interaction with his grandchildren, and that he had previously been “physically active with many hobbies including bike riding, running and paragliding and being fifth dan in karate all of which he has been required to stop.”[48]
[48]Exhibit P8, PCB 46.
66The plaintiff further reported that since the accident, his alcohol consumption had markedly increased.
67On clinical examination, Dr Awad observed that the plaintiff was unable to wear shoes due to allodynia, with the lateral border of his foot being painful. He walked with an antalgic gait. There was mild swelling of the foot. He had bilateral scars on the lateral and medial aspect of his foot that were well healed and clean. There was a reduced range of motion in the ankle joint.[49]
[49] Exhibit P8, PCB 46.
68Addressing work capacity, Dr Awad referred to the plaintiff’s restricted movement in his left ankle, resulting in him being no longer able to operate a clutch safely. She thought that he was “medically unfit to return to his preinjury duties of vocational driving. Pain is a distractor and therefore he is likely to experience reduced concentration, impacting his ability to drive safely.”[50]
[50] Exhibit P8, PCB 47.
69Dr Awad commented that for licensing requirements, vocational drivers are held to a high medical standard. She said that when taking into consideration the plaintiff’s age, lack of qualifications, symptoms of chronic pain and reduced functional capacity, in combination, these factors precluded the plaintiff from undertaking any form of employment. She did not believe that he would be able to do full-time or part-time work. She wrote that given the chronicity of his symptoms, and lack of change despite treatment, “it is likely that he will have a pain syndrome for the foreseeable future. This will affect his ability to undertake any employment in a reliable and consistent manner, meaning he would have a higher than average sickness absent rate.”[51]
[51] Exhibit P8, PCB 47.
Dr Justin Lewis
70Dr Lewis is a psychiatrist who provided an independent medicolegal report to the plaintiff’s solicitors following an examination conducted on 15 May 2023.[52]
[52] Exhibit P9, PCB 49-57.
71Dr Lewis related the plaintiff’s symptoms as a “flat” mood, and frequently feeling irritable and agitated with “uncharacteristic ‘anger episodes.’”[53] He complained of significantly disturbed sleep, secondary to pain, as well as mild cognitive difficulties. He expressed some loss of confidence and feelings of anxiousness when he left the house. Dr Lewis recorded that the plaintiff was prescribed Escitalopram 10 mg daily.[54]
[53]Exhibit P9, PCB 53, paragraph 51.
[54] Exhibit P9, PCB 53.
72Dr Lewis diagnosed a chronic adjustment disorder with depressive features. In his opinion, there was a clear temporal relationship between the workplace injury and the subsequent development of mood and adjustment difficulties, “in the context of chronic pain, physical restrictions, occupational limitations and poor response to treatment.”[55]
[55]Exhibit P9, PCB 54, paragraph 67.
73As a result of the plaintiff’s condition, Dr Lewis said that he remains “socially isolated in the context of depressed mood, poor motivation, and pain symptoms. The marital relationship has been impacted secondary to lowered libido and irritability.”[56] In addition, the plaintiff had described significant difficulties in a domestic sense, secondary to poor motivation and pain and Dr Lewis thought that this state of affairs could be regarded as permanent, in accordance with the chronic nature of the underlying medical condition.[57]
[56] Exhibit P9, PCB 56.
[57] Exhibit P9, PCB 56.
74Dr Lewis said that the plaintiff “does not have the capacity to undertake pre-injury duties from a very narrow psychiatric perspective. Pre-injury duties as a truck driver require high levels of sustained concentration and focus, Mr Harborne described ongoing cognitive difficulties consequent to chronic sleep disturbance.”[58]
[58] Exhibit P9, PCB 56.
75Dr Lewis also said:
If one was able to hypothetically separate the psychiatric condition from the underlying medical condition, Mr Harborne has a capacity to work up to 20 hours per week from a very narrow psychiatric perspective.
Mr Harborne is unable to work in excess of 20 hours per week consequent to lowered mood, poor motivation, sleep disturbance, cognitive difficulties and loss of confidence.
In reality, Mr Harborne would be at significant disadvantage in the open labour market relative to able-bodied individuals.[59]
[59] Exhibit P9, PCB 57.
Mr William Edwards
76Mr Edwards is a foot and ankle orthopaedic surgeon who provided a medicolegal report at the request of the plaintiff’s solicitors dated 13 April 2023.[60] Mr Edwards proffered the following diagnosis:
it is clear that this man has neurogenic pain and I believe it fits with the diagnosis of CRPS. He suffered a malunited fifth metatarsal which underwent osteotomy and fixation; that fixation was later found to be prominent inpingeing [sic] on a joint and was hence removed. He was initially diagnosed with a plafond osteochondral lesion as well as a loose talar fragment. He was also noted to have a fracture of the anterior process of the calcaneum. He underwent surgery with ankle arthroscopy. He now has limited ankle and very limited subtalar movement. I believe he most likely has subtalar joint or ankle joint arthritis.[61]
[60] Exhibit P10, PCB 58-68.
[61] Exhibit P10, PCB 67.
77Mr Edwards believed that the plaintiff was suited to “sedentary or work that is semi sedentary,” for limited hours of work.[62] He said that a workplace would need to “accept that he wears different shoewear.” [63] Mr Edwards said, “this man from the viewpoint of the foot and ankle is suitable for sedentary or semi sedentary work he thinks he can work up to 20 hours a week; I suspect that this is optimistic.”[64]
[62] Exhibit P10, PCB 67.
[63] Exhibit P10, PCB 67.
[64] Exhibit P10, PCB 68.
78Mr Edwards considered the plaintiff’s prognosis as “very bad.” He believed pain management would be required but he was “dubious” whether the plaintiff was suitable for surgery.[65]
[65] Exhibit P10, PCB 68.
Plaintiff Vocational Evidence
Ms Suzanne George
79Ms George is an occupational therapist who prepared a vocational report dated 16 July 2023.[66] Ms George did not have available to her the Nabenet report prepared by Ms Donnelly (nee Stephenson) dated 11 July 2023, on which the defendant relies, and that I will discuss in greater detail below.
[66] Exhibit P11, PCB 69-84.
80Ms George said that she had been instructed to consider the plaintiff’s individual circumstances with regard to his “injury and the nature of his functional capacity, his preinjury employment, age, education, skills and vocational training,” together with his work experience and his place of residence. Ms George said she excluded any effects of the plaintiff’s secondary psychological condition for the purpose of assessing possible suitable vocational options.[67]
[67]Exhibit P11, PCB 69.
81Ms George addressed the plaintiff’s capacity for hours of work. At section 3.4 of her report she said that:
My opinion regarding suitable employment for Mr Harborne has been outlined in Section 3. A suitable recognised occupation notwithstanding, Mr Harborne is likely to be capable of attending work and sustaining employment for a maximum of six hours a day, three days per week.
My opinion is based on information included in the medical reports, my experience matching a worker’s capacity with the demands of employment and information provided by Mr Harborne regarding his post-injury work history. It has been four and a half years since Mr Harborne last worked in paid employment and he would have lost conditioning for regular work. His experience of increased left lower leg stiffness and pain with sitting in a vehicle would impact on his capacity to drive and regularly commute to work. His incapacity for prolonged walking, sitting and standing would also impact on his ability to use public transport. Mr Harborne would need to work alternate days to allow time to manage his injury and recover from the effects of work tasks.[68]
[68] Exhibit P11, PCB 77.
82Mr Kumar in the course of his final address would contend that Ms George impermissibly rendered a medical opinion about the plaintiff. As I will come to explain later in these reasons, I disagree that she did, or that if she did, the worth of her opinion is invalidated as a result.
Flexi Personnel Reports
83The plaintiff’s solicitors obtained two earnings reports authored by Ms Katherine Rintoule, a human resources consultant from Flexi Personnel, dated 12 September 2023 and 14 September 2023.[69]
[69] Exhibit P13, PCB 88-93.
84In her first report, Ms Rintoule said that she had been provided with both of Dr Low’s reports referring to the possibility of certain types of work that might prove suitable for the plaintiff, and that she was aware of the plaintiff’s enrolment in the Inspire Education course, along with Ms Donnelly’s Nabenet report dated 11 July 2023 in which she identified particular jobs that endeavoured to match Dr Low’s opinion contained in his first report.
85Ms Rintoule noted that gross hourly rates of pay for the following type of roles mentioned by Dr Low in his reporting were as follows:
a) Disability Support Worker $24.49 gross per hour
Based on an adult employee paid under the ‘Social, Community, Home Care and Disability Services Industry Award 2010’, and classified as a Social and Community Services Employee Level 1, Pay Point 1, performing disability support worker and associated duties on a permanent full time or part time basis and exclusive of any applicable penalty rates and allowances.
b) Administrative Office Worker $23.97 gross per hour
Based on an adult employee paid under the ‘Clerks - Private Sector Award 2020’ and classified as a Level 1 – Year 1 employee, performing administrative office worker and associated duties, working on a permanent full time or part time basis and exclusive of any applicable penalty rates and allowances.
c) Process Worker $23.23 gross per hour
Based on an adult employee paid under the ‘Manufacturing & Associated Industries & Occupations Award 2020’, and classified as a C13, performing process worker and associated duties working on a permanent basis, and exclusive of any applicable penalty rates and allowances.
d) Mail Sorter $23.97 gross per hour
Based on an adult employee paid under the ‘Clerks - Private Sector Award 2020’ and classified as a Level 1 – Year 1 employee, performing mail sorter work and associated duties, working on a permanent full time or part time basis and exclusive of any applicable penalty rates and allowances.
e) Medical Product Assembler $23.23 gross per hour
Based on an adult employee paid under the ‘Manufacturing & Associated Industries & Occupations Award 2020’, and classified as a C13, performing medical product assembler work and associated duties working on a permanent basis, and exclusive of any applicable penalty rates and allowances.[70]
[70] Exhibit P13, PCB 88-89.
86In her second report dated 14 September 2023, Ms Rintoule set out what she believed the plaintiff “would currently be earning as a Delivery Driver had he not been injured and was able to continue in his pre-injury employment and hours to 2 November 2021.”[71] Ms Rintoule reported that:
To calculate the potential gross annual income that Mr Harborne may have earned working in his pre-injury employment had he not been injured, I noted that his gross payment from his employer in the financial year ending 30 June 2018 was $47,569. To ascertain his potential income thereafter, I then added the Fair Work Australia minimum wage increases to this figure:
2017/2018 $47,569.00
2018/2019 $47,569.00 + 3.50% = $49,233.92
2019/2020 $49,233.92 + 3.00% = $50,710.93
2020/2021 $50,710.93 + 1.75% = $51,598.37
2021/2022 $51,598.37 + 2.50% = $52,888.33
Mr Harborne’s potential earnings as of 2 November 2021: $52,888.33 gross per annum.
Please note: Mr Harborne would also have been eligible for the minimum 9.5% employer Superannuation contribution up until 1 July 2021 when it increased to 10%. Superannuation is based on ordinary time earnings only.[72]
[71] Exhibit P13, PCB 91.
[72] Exhibit P13, PCB 91.
Defendant Medical and Vocational Evidence
Dr Sean Low
87Dr Low is an occupational physician who provided two reports to the defendant’s solicitors dated 16 June 2023 and 30 August 2023.[73] Dr Low examined the plaintiff via teleconference on 16 June 2023. His second or supplementary report was conducted on the papers and was provided in response to a request by the defendant’s solicitors for him to comment on the suitable employment report prepared by Ms Donnelly of Nabenet dated 11 July 2023.
Dr Low’s First Report
[73] Exhibit D1, DCB 1-3.
88In his first report, Dr Low recounted the circumstances of the plaintiff’s injury and history of treatment. He said that the plaintiff continued to report ongoing symptoms following the surgery performed by Ms Touzell, and he had been referred to pain physician, Dr Prendergast. Dr Low referred to a letter written to Dr Turlakow from Dr Prendergast dated 28 November 2019, in which he said that “he may have very early changes of CRPS but his major problems appear to be in the area of his surgery. Maintaining physiotherapy and re-assessment of his surgical site would give him his best chance of eventually being able to return to work.”[74]
[74] Exhibit P6, PCB 40.
89The plaintiff explained to Dr Low that he had received physiotherapy and hydrotherapy sessions, but this had ceased around mid-2021. Since then, his treatment had consisted of attendances on his GP, prescribed analgesia, and monthly psychology sessions.
90At the date of Dr Low’s first report, the plaintiff was taking Paracetamol, Ibuprofen, Targin, Escitalopram and Atenolol.
91The plaintiff told Dr Low that he experienced ongoing left foot and ankle pain (that he rated at 4-10 out of 10). Dr Low reported that:
(a) he is limited to walking for 20 minutes, however, he does not require the use of a walking aid;
(b) pain can wake him at night, and his ankle can swell and change colour; and
(c) he is able to stand for around 15 minutes and negotiates stairs and inclines slowly.
92Dr Low said that on examination, there was no obvious swelling or deformity of the left foot, as compared with the right foot. However, movement of the dorsiflexion and plantar flexion was restricted to 50% of normal.
93Dr Low considered that the plaintiff presented with chronic ankle pain. However, by reference to Dr Prendergast’s opinion, Dr Low was not sure that the plaintiff would meet the diagnostic criteria for CRPS, but believed he would benefit from a face-to face assessment with a pain physician.
94Dr Low noted the history provided by the plaintiff that he had been asymptomatic prior to the subject injury, but that subsequent to the injury he had been unable to return to his pre-injury employment as a truck driver.
95Dr Low thought that the plaintiff would have a capacity for sedentary-based work that allowed him to occupy a seated position only, including undertaking administrative office-type work. However, he noted that the plaintiff had minimal work or education experience in this field of endeavour, having worked predominantly as a truck driver prior to the incident. Dr Low also thought the plaintiff would be fit for “unskilled manual work that would allow him to work in a seated position. This could include working as a process worker or working as a mail sorter.”[75]
[75] Exhibit D1, DCB 8.
The Nabenet Report
96Ms Emma Donnelly is a registered occupational therapist who prepared a suitable employment report, at the request of the defendant’s solicitors, dated 11 July 2023.[76] The plaintiff was not spoken to for the preparation of the report, but instead, Ms Donnelly’s opinions were based upon documents provided to her.
[76] Exhibit D2, DCB 31-41.
97The extent of the documentation Ms Donnelly received was the report by Dr Low dated 16 June 2023, together with a letter of instruction from the defendant’s solicitors dated 27 June 2023. Ms Donnelly said her report “was conducted following a referral dated 27/06/2023 in accordance with Dr Sean Low’s… recommendations.”[77]
[77] Exhibit D2, DCB 40.
98Ms Donnelly understandably had no knowledge from reading Dr Low’s first report of any other medical conditions affecting the plaintiff, because in his first report, Dr Low did not refer to other doctors who had seen the plaintiff and who had commented, inter alia, on his physical and mental limitations to a return to employment.
99Ms Donnelly identified three “actual” job roles which the plaintiff might be suited to perform, based on Dr Low’s first report in which he recommended the need for essentially sedentary work. In fact, Dr Low stipulated work would need to be sedentary by accommodating the plaintiff working in a seated position only. The jobs identified and assessed by Ms Donnelly were:
Administrative Assistant at an employer located in Seaford, approximately 4.4 kilometres (9 minutes) one way via car from where Mr Harborne resides in Carrum Downs.
Process Worker (Medical Product Assembler) at an employer located in Knoxfield, approximately 29.6 kilometres (28 minutes) one way via car from where Mr Harborne resides.
Mail Sorter at an employer located in Mitcham, approximately 37.1 kilometres (33 minutes) one way via car from where Mr Harborne resides.[78]
[78] Exhibit D2, DCB 33.
100Ms Donnelly referred to the critical demands and required tolerances associated with the three suggested suitable employment job options as follows:
Administrative Assistant[79]
[79] Exhibit D2, DCB 33-34.
Sitting Constant
Standing Occasional
Walking Occasional to walk about the office
Stairs Not an inherent requirement of the role
Bending Not an inherent requirement of the role
Squatting/kneeling Not an inherent requirement of the role
Lifting/ Carrying Not an inherent requirement of the role
Reaching Not an inherent requirement of the role
Push/pull Not an inherent requirement of the role
Fine motor skills Constant
Driving Not an inherent requirement of the role
Education and training
requirements (if any)Previous experience in a similar role is desirable.
Good computer skills a must, therefore Mr Harborne would require further computer training to ensure he has the skills to complete the duties. On the job training provided.Process Worker (Medical Product Assembler)[80]
[80] Exhibit D2, DCB 36-37.
Sitting Frequent sitting on chair or stool whilst completing some tasks (with ability to regularly alternate with standing tasks)
Standing Frequent standing (with ability to regularly alternate with seated tasks)
Walking Frequent walking
Stairs Not an inherent requirement of the role
Bending Rare bending
Squatting/kneeling Not an inherent requirement of the role
Lifting/ Carrying · Frequent lifting up to 1kg
· Occasional lifting up to 2kg
· Occasional bilateral carrying up to 2kg
Reaching Frequent reaching forward and repetitive arm/hand movements.
Push/pull Not an inherent requirement of the role
Fine motor skills Frequent
Driving Not an inherent requirement of the role
Education and training
requirements (if any)No formal qualifications are required to perform this role. On the job training is provided to employees
Mail Sorter/Operator [81]
[81] Exhibit D2, DCB 39.
Sitting Constantly sits at sorting benches or desks, the employer noted the role has 3 stations whereby 2 of the stations are in a seated position the third station requires the operator to stand to use the machine.
Standing Occasional standing to operate a machine, however if unable to stand this is not a requirement of the role and requires additional training
Walking Occasionally walks around the warehouse
Stairs Not an inherent requirement of the role
Bending Bending, squatting or crouching has not been identified as an inherent requirement of the role
Squatting/kneeling Lifting/ Carrying Lifting and carrying movements will be within a light weight range (the weight of paper and credit cards)
Reaching Stretching, twisting and climbing activities are not typically significant component of the job
Push/pull Pulling is within a light weight range
Fine motor skills Repetitive arm hand and finger movements will be required when sorting the mail and when working on the machinery
Driving Driving is not a significant component of the role
Education and training
requirements (if any)There are no formal education requirements for this role
On the job training provided
Dr Low’s Second Report
101In his second report Dr Low commented on Ms Donnelly’s suitable employment report. He mentioned that the plaintiff had enrolled in a Certificate IV in Disability. He wrote that although the plaintiff would be fit for “sedentary based work that allows him to utilise this certification however this typically requires computer-based skills which he appears to lack.”[82] Dr Low thought that an assessment from an occupational therapist, “may be useful to explore the extent of his computer skills and transferable skills.”[83] However, Dr Low went on to say that secondary to the plaintiff’s work injury, “he would be unfit to perform the manual duties typically associated with disability care including assisting clients with personal cares, domestic duties or attendance to appointments.”[84]
[82] Exhibit D1, DCB 11.
[83] Exhibit D1, DCB 11.
[84] Exhibit D1, DCB 11.
102Of the three jobs that had been assessed as suitable options by Ms Donnelly, Dr Low considered that each of them appeared to fit the plaintiff’s physical restrictions identified in his first report. He considered that the plaintiff possessed the physical capacity to undertake the duties and tasks involved in each role, and that the physical requirements of them each, should be within the plaintiff’s physical tolerance.[85] However, Dr Low said that the plaintiff would require “some ability to self-pace and alternate his posture as required” in addition to “parking near the work site to allow him to manage his left ankle condition.”[86] Dr Low said that he would defer to the opinion of an occupational therapist if the plaintiff was capable of negotiating appropriate flexibility in employment, or whether employers were willing to provide such flexibility.
[85] Exhibit D1, DCB 11-12.
[86] Exhibit D2, DCB 12.
103Dr Low was asked if the plaintiff had expressed any perceived difficulty attending to each of the suggested roles for the number of hours identified by Nabenet. However, because Dr Low prepared his second report on the papers, he explained that the opportunity to discuss the job roles and duties with the plaintiff did not arise.
104Dr Low said he thought the plaintiff would benefit from a graduated increase in hours, noting his time absent from the workforce. He also said that:
If the physical restrictions I have recommended are observed he does retain the possibility of returning to full time work however his working tolerance can only be assessed once he starts employment.[87]
[87] Ibid.
The Plaintiff Cross-Examined
105Mr Kumar directed the plaintiff to the state of his current treatment regime, which the plaintiff explained consists of him attending on his GP, Dr Turlakow, on about a monthly basis and attending psychologist, Ms Kousoulinis, whom he commenced seeing in February 2020, also about once a month. He agreed that he had not been referred to a psychiatrist.[88]
[88] T 8, L 20 – T 9, L 7.
106The plaintiff said he had last attended a specialist for treatment in late 2019, when he saw the pain specialist Dr Anthony Prendergast. He had previously been seen by the orthopaedic surgeons Mr Bourke and Ms Touzell, and had received one injection. The plaintiff agreed that he has been discharged from the care of each specialist.[89]
[89] T 9, L 8-31.
107The bulk of Mr Kumar’s cross-exanimation was directed to the plaintiff’s efforts to upskill, and to potential employment options.
108Mr Kumar questioned the plaintiff about his efforts in his online course for a Certificate IV in Disability Support with Inspire Education, funded by the WorkCover insurer, Allianz. The plaintiff agreed that he had enjoyed the course, and that it had improved his self-esteem and emotional state. The plaintiff said he commenced the one year course in August 2020, but had not completed the last three modules when he learned that Inspire Education no longer existed.[90]
[90] T 10, L 1 - T 11, L10.
109Mr Kumar directed the plaintiff to his second affidavit, in which he deposed that he “did not have the finances to re-start and finish the course elsewhere.”[91] Mr Kumar asked the plaintiff why he had not told Allianz about the situation that had occurred with Inspire Education, given it had funded the course. The plaintiff said he had little to do with Allianz, but he agreed with Mr Kumar, that he had not sought funding from the insurer with the aim of undertaking a different course or of retraining.[92]
[91] Exhibit P1, PCB 12, paragraph 3.
[92] T 11, L 7-24.
110Mr Kumar questioned the plaintiff concerning the extent of his job seeking activities. He confirmed, consistent with the contents of his second affidavit, that in line with his obligations to receive Centrelink benefits, he attends WorkForce “about every two to three weeks.”[93] He said he is assisted in looking for jobs, but it falls to him to make job applications.
[93] T 12, L 1-2.
111Addressing the plaintiff’s current capacity for work, Mr Kumar directed him to his second affidavit where he deposed that, “I am not sure how I would cope with administrative assistant or customer service work as I only have basic computer skills and type slowly.”[94] However, the plaintiff said he would be willing to give that kind of work “a go”, and that this sort of work had been among the types of roles he had applied for.[95]
[94] Exhibit P1, PCB 13, paragraph 7.
[95] T 12, L 23.
112The plaintiff agreed with Mr Kumar that if it helped him find work, he would be willing to undertake re-training to gain computer or clerical skills, as was suggested in the Nabenet report. He said that he had discussed the prospect of upskilling with WorkForce, but matters had not progressed.
113The plaintiff agreed with Mr Kumar that the type of work he thought he might be able to try, would be mostly seated, sedentary work.
114The plaintiff was not questioned about the duties attendant the three jobs identified by Ms Donnelly in her report.
Defendant submissions
115Mr Kumar submitted that the principal issue in contest is the plaintiff’s residual capacity for employment. Mr Kumar submitted that to determine residual capacity, two issues call for consideration, and they are first, assessing the plaintiff’s appropriate without earnings figure, and the second, ascertaining the plaintiff’s capacity for employment in accordance with the structure of the Act.
Without or pre-injury earnings
116The plaintiff had provided pre-injury earnings figures; however, these were contested by the defendant. Mr Kumar submitted that neither the figure contained in the plaintiff’s 2016 tax return for the financial year 1 July 2015 to 30 June 2016 in the sum of $57,651,[96] and which preceded the incident of injury on 2 November 2018 by two years, nor the alternative figure advanced by the plaintiff of $52,888 (that is, plaintiff’s 2018 earnings but then “indexed” by Ms Rintoule, to achieve a hypothetical earnings figure for the 2022 financial year)[97] fairly reflected the plaintiff’s without injury earnings capacity within period dictated by the Act.
[96] Exhibit P12.
[97] Exhibit P13, PCB 91.
117Mr Kumar submitted that the plaintiff’s higher earnings for the 2016 financial year were achieved prior to the commencement of his employment on 21 September 2016 with the employer with whom he suffered his injury, and that there was “no evidence as to why some figure in a job that he left is the figure that most fairly reflects his earning capacity.”[98] Mr Kumar referred to an absence of evidence to suggest, for example, that the plaintiff was intending to leave his role as a delivery driver with the defendant employer, when he suffered his injury in November 2018 and return to earlier and more lucrative employment. Bearing this in mind, Mr Kumar submitted that it would be inappropriate to use a figure that predated the plaintiff’s injury, but yet produced a higher amount than was earned in the employment in which the plaintiff was injured.
[98] T 20, L 6-8.
118As concerns the alternative figure derived by Ms Rintoule, and the indexing of earnings as part of her exercise, Mr Kumar submitted that there is no basis to apply minimum wage increases to the actual income that the plaintiff earned in the 2018 financial year. In support of his submission, Mr Kumar referred to the decision in Collins v Australian Milling Group Pty Ltd.[99] Mr Kumar submitted that in Collins, a simple and nominal increase to the plaintiff’s actual earnings figure had been applied on behalf of the plaintiff, but which approach was not accepted by his Honour Judge O’Neill.
[99] [2020] VCC 1103 (“Collins”).
119Mr Kumar submitted that it would be an error to apply minimum wage increases to the plaintiff’s earnings, without evidence of what had actually occurred in the role or industry, and he also noted, that the three year period in question included a time in which Covid-19 closed down all but essential employment, and one could only speculate if Fair Work increases to the minimum wage would necessarily have applied to the plaintiff’s job.
120The crux of Mr Kumar’s submission was that the figure which most fairly reflects the plaintiff’s without injury earnings, are those derived in 2018, that is the full financial year preceding the plaintiff’s injury, being the sum of $47,569 of which 60% is $28,541, or $549 per week.[100]
[100] Exhibit P12.
121Mr Kumar alternatively submitted, that if I regarded it as appropriate to index the plaintiff’s earnings from 2018 in order to calculate his pre-injury earnings, then I ought to index the plaintiff’s earnings at most three times, in accordance with the three-year window prescribed by the Act. To index the plaintiff’s earnings four times, as Ms Rintoule had done, was in Mr Kumar’s submission, unwarranted. In addition, the period of time that Ms Rintoule had taken into account (from the 2018 financial year onwards) included a period outside of the six-year window prescribed by the Act.
Plaintiff’s Capacity for Employment and Post Injury Earning Capacity
122Having submitted that the plaintiff’s without injury earnings in the three years before and the three years after injury should be assessed in the sum of $47,569, of which 60% is $28,541 or $549 per week, Mr Kumar next addressed the evidence he relied on to establish the plaintiff’s post earning capacity.
123Mr Kumar relied on Dr Low’s opinion that the plaintiff was “fit for sedentary-based work which allows him to sit in in a seated position.”[101]
[101] Exhibit D1, DCB 8, paragraph 10.
124Mr Kumar referred to the jobs Ms Donnelly identified as fitting within the nature of restrictions referred to by Dr Low in his first report, and to which Dr Low offered his “medical approval” in his second report.[102]
[102] T 23, L 18-19.
125Mr Kumar also relied on Dr Low’s comment expressed in his second report that the plaintiff “would benefit from a graduated increase in hours.”[103] Mr Kumar contended that this observation supported Dr Low’s proposition that “the plaintiff retains the possibility of returning to full-time work but that’s something which can only be assessed once he starts employment.”[104] Mr Kumar submitted that Dr Low struck a sensible position that the plaintiff could commence on a return to work, “and effectively graduate as he is able to tolerate.”[105] Although, Dr Low did not suggest a starting point from which the plaintiff could extend his hours beyond 20 hours a week, or over what period of time a hardening to a full time capacity might be capable of being achieved, Mr Kumar argued that Dr Low’s view was essentially that a return to full-time hours could not “be clinically ruled out.”[106] Mr Kumar described this as “significant evidence” in an application where the plaintiff bears the onus of proof.[107]
[103] Exhibit D1, DCB 12,
[104] T 23, L 24-26.
[105] T 24, L 1-3.
[106] T 25, L 31.
[107] T 26, L 1.
126I raised with Mr Kumar a concern that Dr Low had not examined the plaintiff for the purposes of his second report, but that he had referred to the certificate of capacity from the plaintiff’s treating general practitioner that the plaintiff is fit for suitable employment for “20 hrs per week only,” together with some functional restrictions and “no driving in commercial capacity.”[108] I was concerned to understand the basis for Dr Low’s opinion of work hardening, with a possibility of a return to full-time work. Moreover, in neither of his reports, was Dr Low in a position to be able to respond to other opinions that had been obtained but were pessimistic about the plaintiff returning to work, because they had not been supplied to him. Nonetheless, Mr Kumar submitted that Dr Low’s opinion was consistent with the certificate from the plaintiff’s treating GP to which Dr Low had referred, that is, he could presently return to work for 20 hours per week, but with the difference being, that on Dr Low’s analysis, there was a potential to increase the plaintiff’s earning hours to full-time, as he proved able to tolerate. I accept that Dr Low’s opinion is consistent with the hours identified by the plaintiff’s GP, at least for the period of time embraced by that medical certificate, nonetheless, there is no exposition of reasoning by Dr Low for the potential of a return to full time work by the plaintiff.
[108] Exhibit P14, PCB 94.
127Mr Kumar in any event submitted that Dr Low’s assessment is not inconsistent with the opinions of other treating doctors concerning the plaintiff’s capacity for employment and he relied on Dr Touzell, who in April 2020, thought that the plaintiff could perform “seated duties that do not involve standing more than 10 minutes.”[109]
[109] Exhibit P5, PCB 23.
128Mr Kumar submitted that Dr Low’s inability to canvass with the plaintiff whether he perceived any difficulty in attending each of the identified jobs for a specified number of hours, is inconsequential in circumstances where the plaintiff’s GP on whom he has attended regularly, had certified him fit for 20 hours of work per week, but that at any rate by the plaintiff’s own admission, he had applied for part time work.
129Mr Kumar also referred to the plaintiff’s treating physiotherapist, Mr Droscher, whose opinion in January 2020, included that the plaintiff “could tolerate reduced hours and modified duties,” and “he would be able to tolerate/office admin-based duties” or drive an automatic car/truck.[110] Mr Droscher’s advice was for the plaintiff to “return to 3 half days a week initially, with his hours and duties to be reviewed after two weeks,” if he was able to find work with suitable duties.[111] Mr Droscher also said that “hopefully he can find work and reduce physiotherapy in the next 3 months and discharge to self-management in approximately 6-12 months, once Robert is back working and tolerating full time hours.”[112]
[110] Exhibit P3, PCB 32-33.
[111] Exhibit P3, PCB 33
[112] Exhibit P3, PCB 33
130Mr Kumar addressed the more current report of Dr Turlakow dated 10 July 2023. Mr Kumar observed that although in July 2023 Dr Turlakow considered that the plaintiff “will never return to gainful employment,”[113] that opinion, pre-dated her most recent certificate of capacity, in which she certified the plaintiff fit for suitable employment of up to 20 hours per week. Mr Kumar highlighted an absence of explanation by Dr Turlakow for her change of opinion.
[113] Exhibit P2, PCB 30.
131Mr Kumar addressed Dr Awad’s opinion in which she said that:
Given the chronicity of his symptoms in my opinion, and lack of change despite treatment, it is likely that he will have a pain syndrome for the foreseeable future. This will affect his ability to undertake any employment in a reliable and consistent manner, meaning he would have a higher than average sickness absence rate.[114]
[114]Exhibit P8, PCB 47.
132Mr Kumar characterised Dr Awad’s opinion as “probably the highpoint of the plaintiff’s case”[115] but that nonetheless, Dr Awad stopped short of suggesting that the plaintiff could not undertake work on a reliable and consistent basis but instead “Just that he'd have a higher than average sickness absent rate…”[116]
[115]T 28, L 23-24.
[116]T 28, L 26-29.
133Mr Kumar addressed the evidence of the plaintiff’s psychiatric condition and its impact on employment. Mr Kumar submitted that Dr Lewis’ qualification as a psychiatrist, and his opinion, should be preferred to the opinion expressed by the plaintiff’s treating psychologist Ms Kousoulinis. Mr Kumar emphasised that Dr Lewis thought that “from a very narrow psychiatric perspective” the plaintiff has capacity to work up to 20 hours per week and that his “psychiatric prognosis would be improved with ongoing psychological therapy.”[117] Hence, in Mr Kumar’s submission, there is added scope for improvement in the plaintiff’s capacity for employment, coupled with continued psychological treatment.
[117]Exhibit P14, PCB 57.
134Mr Kumar submitted that Ms Kousoulinis appeared to have taken into account the plaintiff’s pain symptoms, and with the result he contended, that she had engaged in “an impermissible aggregation of both the physical and psychiatric consequences of injury.”[118] In her report dated 2 June 2023, Ms Kousoulinis said that “despite treatment, his symptoms and psychosocial impairment have persisted. As such, he is not likely to achieve the level of remission required to obtain or sustain employment in the foreseeable future.”[119]
[118] T 30, L 11-14.
[119]Exhibit P7, PCB 42.
135In furtherance of the submission that the plaintiff’s employment capacity expressed by Dr Lewis ought to be preferred, Mr Kumar argued that Dr Lewis had provided some explanation for his assessment of 20 hours of work capacity per week, and he had taken into account the plaintiff’s lowered levels of motivation and concentration.
136In addressing the opinion expressed by Dr Edwards, Mr Kumar submitted that he had not excluded the prospect of the plaintiff working, but said of him that “from the viewpoint of the foot and ankle is suitable for sedentary or semi sedentary work he thinks he can work up to 20 hours a week; I suspect that this is optimistic.”[120]
[120] Exhibit P10, PCB 68.
137Mr Kumar addressed the hours of work that Ms George suggested and, in particular, her opinion that the plaintiff was “likely to be capable of attending work and sustaining employment for a maximum of six hours a day three days a week.”[121] Mr Kumar submitted that Ms George had only provided an opinion on the plaintiff’s starting point for a return to work and had not offered an opinion in the event the plaintiff work hardened in the foreseeable future.
[121] Exhibit P11, PCB 77.
138Mr Kumar submitted that, in any event, Ms George lacked medical expertise and it was impermissible for her to have expressed “her own purported medical opinion as to whether the plaintiff would have capacity for particular roles.”[122] He submitted that Ms Donnelly as a vocational assessor had identified potential roles, and that it did not fall to Ms George to provide opinion “as to the clinical suitability for the roles.”[123] Mr Kumar submitted that Ms Donnelly by contrast, had taken into account the medical restrictions on the plaintiff’s employment that had been identified by Dr Low, and then provided suitable employment options based on those parameters.
[122] T 34, L 1-2.
[123] T 33, L 27-30.
139Mr Kumar submitted that it would have been inappropriate for Ms Donnelly to be furnished with all of the medical reports in existence at the time of the preparation of her report, so as to have formed an opinion of appropriate restrictions and then to have identified suitable employment options because the provision of a medical diagnosis lay outside her expertise. However, Mr Kumar submitted that it was entirely appropriate for Ms Donnelly as an expert vocational assessor, to report on and to suggest, suitable employment options based on Dr Low’s clinical opinion.
140Mr Kumar submitted that that the jobs identified by Ms Donnelly satisfy the sedentary type of work that the plaintiff could reasonably be regarded as capable of performing. Mr Kumar suggested that employers regularly make modifications and accommodations for their employees, and that it was necessary for the plaintiff to show that any accommodation he required, was not capable of being met by potential employers.
141Mr Kumar submitted that the jobs assessed by Ms Donnelly were administrative roles and by their nature akin to jobs that the plaintiff had applied for with the help of WorkForce and, as well, the plaintiff’s evidence had included him being open to considering upskilling.
142Mr Kumar next submitted that the wage rates contained in the Flexi Personnel report, were minimum rates under relevant awards, and were exclusive of any potential applicable penalty rates or allowances. He also argued that minimum rates do not “reflect the true extent of the retained capacity if exercised and productive of financial benefit.”[124]
[124] T 43, L 8-9.
143Mr Kumar acknowledged that if I found the plaintiff had a capacity for suitable employment in the jobs identified up to a maximum of 20 hours of work per week, then the role of a process worker would not produce earnings that would exceed the statutory threshold for a loss of earnings claim, and whether or not the job of mail sorter did, depended on whether the lower or higher end of the average per hour wage rate referred to by Ms Donnelly in her report was adopted. Mr Kumar submitted that an hourly wage rate of $28 or $29 met the threshold for a retained capacity of 20 hours of work per week. Mr Kumar otherwise relied on his earlier and allied submission that that the amounts comprised present figures, and even if I was persuaded to adopt Ms Rintoule’s amounts with the result that the plaintiff satisfied the statutory test at the present time, I could not be satisfied that the loss would continue into the foreseeable future.
Plaintiff Submissions
Without or Pre-Injury Earnings
144Mr Chancellor first addressed the question of the plaintiff’s “without injury earnings.” He submitted that for the purposes of the determination required by subsection 325(2)(e)(i) of the Act, subsection 325(2)(f)(ii) expressed gross income at an annual rate that the worker “was earning” or “was capable of earning” from personal exertion in the past, that is, within three years before, and three years after the injury, that most fairly reflects the worker’s earning capacity had the injury not occurred.
145Mr Chancellor submitted that in the context whereby a “worker has to compare what he might have been earning in 2021 with what he could be earning today in 2023”[125] and, bearing in mind the test for loss of earning capacity is applied in the context of beneficial legislation, the requirement should be interpreted from a “generous and sensible perspective.”[126] In a similar vein, Mr Chancellor argued that earning capacity should be assessed “broadly”, and not just through the prism of what the plaintiff might have earnt if he had continued working with the defendant employer.
[125] T 48, L 30 – T 49, L 4.
[126] T 48, L 30-31.
146Mr Chancellor submitted that the figure which most fairly reflects the plaintiff’s earning capacity is represented in the 2016 financial year in the sum of $57,651, of which the 60% figure equates to $34,590 per annum.[127] Mr Chancellor sought to reinforce his argument that this is the figure that most fairly reflects the plaintiff’s pre-injury earnings, because the “bulk” of the figure was derived within the three year period prior to the plaintiff’s injury, as is contemplated by the Act, and that it reflected the plaintiff’s earnings for a full financial year. Furthermore, Mr Chancellor submitted that the plaintiff had proved his capacity to earn this figure, having done so in 2016.
[127] Exhibit P12.
147Mr Chancellor suggested that had the plaintiff, for whatever reason, lost his job with the defendant employer, he may well have chosen to return to the work which had contributed towards his earnings in the 2016 financial year and which represented a higher figure than his earnings with the defendant employer.
148Mr Chancellor submitted that an alternative method of assessing the plaintiff’s pre-injury earnings, is to apply the mechanism adopted by Flexi Personnel whereby the Fair Work minimum wage increases had been applied to the plaintiff’s actual earnings at the incident date, and in the 2018 financial year. Mr Chancellor submitted that the appropriate figure after applying minimum wage increases was $52,888.33 of which 60% equates to $31,732.[128]
[128] Exhibit P13, PCB 91.
149Mr Chancellor submitted that applying minimum wage increases was warranted. He submitted that the plaintiff was not paid an “award rate” (however, the evidence in the application did not address if the plaintiff had been paid under an award or not), and so the sensible approach, Mr Chancellor argued, was to apply real minimum wage increases. He submitted, that based on Flexi Personnel’s report, it was open for me to accept the figure of $52,888.33 as accurate as of 2 November 2021, particularly so, in circumstances where the defendant employer had not provided information of what may or may not have happened to the plaintiff’s employment with it, regardless of the injury and it had not produced any evidence to contradict the Flexi Personnel figures.
Current Earning Capacity
150Having addressed pre-injury earnings, Mr Chancellor next turned to the question of what the plaintiff’s earning capacity (expressed as gross income) at the present time is, and whether the plaintiff has suffered a 40 per cent loss of earning capacity as a result of the injury. I observe that because the plaintiff is not earning, the question to be asked is reduced to, what if at all, the plaintiff is capable of earning in suitable employment.
151Mr Chancellor submitted that the restrictions on the plaintiff’s work capacity when considered against the test in Richter v Driscoll,[129] are such that he should reasonably be assessed as effectively unable to sell his labour on the open market. Mr Chancellor argued that good evidence that the plaintiff’s labour does not represent a merchantable asset includes and is reflected in his efforts in having applied for multiple jobs over a long period of time but without success.
[129] [2016] VSCA 142.
The Medical Evidence
152Mr Chancellor referred to the plaintiff’s evidence of his assessed capacity expressed in his second affidavit, that “I continue to believe that, at best, I could only work on a part-time basis as my symptoms remain the same.”[130] The plaintiff said later in his affidavit, “I am required to look for work. I have applied for many part-time administrative assistant and customer service jobs. Dr Turlakow certifies me to work up to 20 hours per week in work where I can sit or stand as required.”[131]
[174] Exhibit P2, PCB 30
211I also appreciate that Dr Low relatively recently, and the plaintiff’s physiotherapist a number of years ago, expressed some hope of a possible return by the plaintiff to tolerating full time hours, and that Dr TouzelI back in April 2020, thought the plaintiff could perform seated duties that do not involve standing more than 10 minutes. Although respectful and mindful of these opinions, upon a consideration of the whole of the evidence, for the purposes of a gateway provision, I do not accept that the plaintiff has a capacity for employment and that the same is permanent in the sense of for the foreseeable future.[175] Certainly the plaintiff’s pain and limitation and disturbances to concentration because of pain and pain reliving medication and the effects of the same and that have persisted for some considerable time have not dissipated to a degree that would comfort me in thinking the situation is otherwise than one that satisfies me that there exists a permanent loss of earnings.
[175] Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188.
212In the event I am wrong in my principal finding and I should have concluded that the plaintiff has an “after injury” work capacity of up to, but not more than 20 hours per week, then I would have nonetheless, have been satisfied that the plaintiff had proved that such capacity was not in the proposed suitable employment identified by the defendant.
213I consider that the value of the Nabenet report identifying jobs amounting to possible suitable employment for the plaintiff was diminished by the non-provision to Ms Donnelly of other available medical evidence beyond the opinion of Dr Low, who identified some restrictions relevant to employment. I am not persuaded by Mr Kumar’s argument that it would have been inappropriate had Ms Donnelly been provided with medical reports, other than the two opinions of Dr Low. To the criticism made by Mr Kumar that it was not a matter for Ms Donnelly to form medical opinions, but instead to fit the restrictions and capacities that Dr Low had identified with real jobs that would comport with his identified restrictions and capacities, it seems to me the answer to the criticism is straightforward enough, and it is, that it cannot sensibly be known if any of the jobs identified permit the plaintiff to perform the work not only just seated as Dr Low recommended, but with his left leg elevated as it appears may also be required. Mr Kumar submitted that “the types of restrictions which have been identified by Dr Lo [sic] are concordant with the opinions expressed by others and that’s a matter of significance.”[176] Whilst there may be some coincidence in some of the reporting, for the reasons I have earlier explained, I prefer the alternative body of medical and occupational opinion. Furthermore, it strikes me there was a risk of insufficiency of reasoning underpinning the vocational reporting because whereas on the one hand it was considered appropriate for Ms Donnelly to be furnished with the report by Dr Low, it was not thought necessary or beneficial for her to be supplied with other opinions.
[176] T 38, L 30 – T 39, L 2.
214I also do not accept the absolutism inherent in the submission made by Mr Kumar that “it goes too far to say that the appropriate course is, in terms of the identification of suitable employment, is for the vocational assessor to be provided with every medical report, and the vocational assessor to then form views about what the roles - what are the medical restrictions that might apply to any job.”[177] It seems to me that although it is not the task of a vocational assessor to render medical opinions or reach medical conclusions based on medical opinions, a knowledge of relevant health conditions and restrictions would better inform identification of a suitability in possible employment. For example, I note that Ms Donnelly reported that “further investigation may be required to determine whether all roles advertised are within seated positions,”[178] a relevant consideration referred to by Dr Low. However, the fact of the plaintiff performing work duties with his affected leg elevated was not a consideration addressed by Ms Donnelly, because the potential need for the adoption of the same in a workplace was not known to her, because she had not been provided reporting other than by Dr Low, who did not canvass the contents of other medical reports.
[177] T 39, L 10-16.
[178] Exhibit D2, DCB 38.
215Mr Kumar submitted that nonetheless, employers regularly accommodate employees, and that it would fall to the plaintiff to adduce evidence to the contrary that he could not be accommodated. I do not accept the submission as advocated as it is one of uncertain application. Also, it is unclear what is intended by the assertion that employers regularly accommodate employees. I do not know the extent to which employers accommodate employees, or the extent to which they accommodate employees where to do so may conflict with the method in which the duties associated with a proposed job are required to be performed or are expected to be regularly performed. This is relevant having regard to the critical demands and tolerances set out in the suggested suitable employment. Thus, the requirement for constant sitting in the Administrative Assistant job but with occasional standing satisfies me as being unsuitable for at least this reason. The frequent sitting for the job of a Process Worker is equally unsuitable. The constant sitting but discordance in that one machine requires standing in the job of a Mail Sorter, makes it unsuitable.
216I accept there is some force in Mr Chancellor’s submission that a requirement for the plaintiff to elevate his foot during the work day, is an adaptation in going about the performance of the suggested suitable employment identified by Ms Donnelly, that is of a qualitative difference to an accommodation of alternating between sitting and standing in the execution of the identified range of duties associated with the proposed suitable employment.
217I also accept the opinion of Dr Edwards, who in April 2023, considered the plaintiff’s assessment of his own capacity of up to 20 hours a week, as “optimistic.”[179]
[179] Exhibit P10, PCB 68.
218I would not have been satisfied that a capacity for up to 20 hours of work is one that the plaintiff possesses or would likely be able to acquit on a consistent and reliable basis in the proposed jobs. I have also taken account that in the plaintiff’s first affidavit he deposed that if he worked three days a week, four hours per day, that half days would be his maximum and he would require days off in between in order to recover. I see no reason to doubt the genuineness of the same. I am not satisfied that the plaintiff’s physical injury and impairment of function equips him to be capable of discharging on a reliable and consistent basis the requirements for the performance of the duties identified and required of the suitable employment. The matter of the plaintiff’s likely than greater than normal absenteeism because of his injury that would follow in its wake, is an additive factor in me arriving at my conclusion. I also adopt my earlier comments concerning the plaintiffs reduced concentration and use of pain relieving medication.
219I have also considered the plaintiff’s evidence expressed in his second affidavit that “I am not sure how I would cope with administrative assistant or customer service work as I only have basic computer skills and type slowly.”[180] Consistent with the favourable opinion I formed of the plaintiff, when asked by Mr Kumar if he would be willing to give that kind of work “a go” given that this had been among the types of roles he had applied for, he said he would.[181] The plaintiff also agreed with Mr Kumar that if it would help him to find work, he would be willing to undertake retraining to gain computer or clerical skills and that he had discussed the prospect of upskilling with WorkForce, although, the discussions had not progressed. I have had regard to the plaintiff’s evidence in which he agreed with Mr Kumar that the type of work he thought he might be able to try, would be mostly seated, sedentary work and he had been looking for that kind of work. As I adverted to earlier in these reasons, it seems to me that the plaintiff’s answers to this tranche of questions put to him by Mr Kumar, although reflecting well on the plaintiff’s genuineness and desire to work, is better understood in that light, and not as evidence of a capacity in suitable employment on a consistent and reliable basis. As to the criticism of Ms George, I do not regard her as having impermissibly expressed her own medical opinion of the plaintiff’s clinical suitability for the identified proposed suitable employment. I consider that she set out findings by those with the relevant expertise who had reported on the plaintiff and had applied that information to her skill set and expressed her view of the matter.
[180] Exhibit P1, PCB 13, paragraph 7.
[181] T 12, L 23.
220I am satisfied and find that the plaintiff’s physical impairment is permanent and in consequence of the same, that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more, as required by subsection 325(2)(e)(ii) of the Act.
221Accordingly, for the reasons given, based on the claimed “serious injury” relied on pursuant to paragraph (a) of the definition of injury, the plaintiff is entitled to the leave of the Court to commence a proceeding for loss of earning capacity damages.
222In addressing the plaintiff’s claim for pecuniary loss under paragraph (c) of the definition of injury, I am separately satisfied that the plaintiff presents with a severe mental disorder, and that the consequences from the same are such that he has no capacity for employment or in suitable employment. I accept the veracity of the plaintiff’s account of his symptoms and of the ongoing treatments to which he deposed, including, his taking of psychotropic medications that he detailed at paragraphs 5 and 6 of his second affidavit.[182] Dr Lewis diagnosed a chronic adjustment disorder with depressive features. There was no contradictory psychiatric reporting. Dr Lewis endeavoured to “hypothetically separate the psychiatric condition from the underlying medical condition” and having done so, he said the plaintiff “has a capacity to work up to 20 hours per week from a very narrow psychiatric perspective.”[183] However, he also said that he did not regard Mr Harborne as able to work in excess of 20 hours per week consequent to lowered mood, poor motivation, sleep disturbance, cognitive difficulties and loss of confidence. In my judgment, I adopt the observation offered by Dr Lewis, that in reality, the plaintiff would be at significant disadvantage in the open labour market relative to able bodied individuals because of his psychological symptomology.[184] That symptomology was reported on by Dr Lewis, and the manifestation of the same, when taken in conjunction with the plaintiff’s evidence on the issue, is in my assessment incompatible with a consistent and reliable capacity for work or in the performance and discharge of the application required for the suggested suitable employment. Because the injury under paragraph (c) is attendant with a requisite loss of earning capacity that itself is a sufficient basis for the grant of a certificate for very considerable consequences both under paragraph (a) and (c).
[182] Exhibit P1, PCB 12-13.
[183] Exhibit P9, PCB 57.
[184] Exhibit P9, PCB 57.
223If contrary to my findings, I have been satisfied that the plaintiff has a current work capacity in the proposed suitable employment identified by the defendant and despite the contentions between counsel about how to calculate the earnings for the jobs, I would have concluded and based on the figures used by Ms Donnelly that the plaintiff would not have satisfied the statutory threshold for a loss of earnings in at least one of the three proposed suitable employment positions. Given the arguments that were advanced by counsel for the parties, I should explain why I would have reached that conclusion and why I would have adopted Ms Donnelly’s calculation, in preference to Ms Rintoule’s.
224The earnings in the proposed suitable employment positions identified by Ms Donnelly of Nabenet were:
(a) Job One - Administrative Assistant/Office Support
A 38 hour per week full time position Monday to Friday.
Nabenet identified the “average” salary for this position as “approximately” $1,153.85 to $1346.15 gross per week or between $60,000 to $70,000 gross annually depending on experience for a 38 hour week. The gross hourly rate equates to between $30.36 and $35.42.
Therefore, on the basis of a 20 hour week the plaintiff’s earning would assess at between:
·$607.20 weekly or $31,574 gross per annum; or
·$708.40 weekly or $36,837 gross per annum.
Flexi Personnel reported the earnings for the job of an Administrative Office Worker as $23.97 gross per hour based on an adult employee paid under the ‘Clerks - Private Sector Award 2020’ and classified as a Level 1 – Year 1 employee, performing administrative office worker and associated duties, working on a permanent full-time or part-time basis and exclusive of any applicable penalty rates and allowances.
A 38 hour week produces:
·gross weekly salary of $910.86 or $47,364 gross per annum.
A 20 hour week produces:
·gross weekly salary of $479.40 per week or $24,928.80 gross per annum.
Thus, using Nabenet figures the plaintiff would earn greater than the threshold required for a loss of earnings claim irrespective of the lower or upper range figures identified, but he would not if the Flexi Personnel figure is applied.
(b) Job Two - Medical Product Assembler
The job is a permanent full-time position 38 hours per week: Monday to Thursday, 7:30am to 4:30pm; and Friday 6am -12:10pm
Nabenet reported the wage rate for the role is $21.61 gross per hour, which on a 38 hour week equates to:
·$821.18 gross per week for a 38 hour week and $42,701 gross annually.
On the basis of a 20 hour week it would produce a gross weekly salary of $432.20 or $22,474.
Flexi Personnel reported on the job of Medical Product Assembler and based on an adult employee paid under the ‘Manufacturing & Associated Industries & Occupations Award 2020’, and classified as a C13, performing medical product assembler work and associated duties working on a permanent basis, and exclusive of any applicable penalty rates and allowances the wage is paid at $23.23 gross per hour.
Based on a 38 hour week this would amount to:
·$882.74 gross per week, or $45,902 gross per annum.
Based on a 20 hour week this would amount to:
·$464.60 gross per week or $24,159 gross per annum.
Thus, whether using the Nabenet figures or Flexi Personnel figures, the plaintiff would satisfy the test for a loss of earnings claim if he was able to undertake 20 hours a week.
(c) Job Three - Mail Sorter
Casual employment.
Nabenet identified that the average salary for this position is between $28 to $30 gross per hour.
Assuming a “casual” position can be regarded as employment that is productive of regular and consistent hours whether by way of a 38 or 20 a week, this would result in the following:
Based on a 38 hour week:
·$1,064 to $1,140 gross per week, or $55,328 to $59,280 gross per annum.
Based on a 20 hour week:
·Between $560 to $600 gross per week, or $29,120 to $31,200 gross per annum.
Flexi Personnel reported that a Mail Sorter position is paid $23.97 gross per hour based on an adult employee paid under the ‘Clerks - Private Sector Award 2020’ and classified as a Level 1 – Year 1 employee, performing mail sorter work and associated duties, working on a permanent full-time or part-time basis and exclusive of any applicable penalty rates and allowances.
Based on a 38 hour week:
·$910.86 gross per week, or $47,364 gross per annum.
Based on a 20 hour week:
·$479.40 per week, or $24,929 gross per annum.
Thus if the lower range on the Nabenet calculations is applied, the plaintiff would satisfy a loss of earnings claim but he would not if the higher sum of the range was applied. He would satisfy the threshold for a loss of earnings claim if the Flexi Personnel figure were used.
225My reasoning of the calculations supplied follows.
226Mr Kumar submitted that the figures for each job identified by Ms Donnelly were provided in two ways: first, the provision of a salary associated with each job and second, the identification of more generalised figures for each role on a “median” or “average” basis. By comparison, Mr Chancellor submitted that the figures relied on by the plaintiff based on the Flexi Personnel report, utilised rates paid under particular awards in the various type of jobs that correlated to the specific roles identified by Nabenet. Mr Chancellor argued that I could take judicial notice that the Flexi Personnel figures reflect minimum award amounts. Mr Kumar noted that the Flexi Personnel report said that in each instance the rates excluded any applicable penalty rates and allowances.
227Mr Chancellor argued that Ms Donnelly failed to take into account that the actual jobs suggested are dependent on experience. Furthermore, to overcome what Mr Chancellor submitted gave rise to such potential unfairness, he argued that if the figures are applied, that the lower sum in the range should be adopted. Ultimately, I am satisfied that Ms Donnelly’s earnings were associated with identified and proposed suitable employment. Had I been persuaded that the plaintiff has the capacity for earnings in suitable employment, then the matter of the criticism of “averages” could have been overcome by the use of the lowest of the range referred to by Ms Donnelly for the jobs identified, but yet still would have resulted in the plaintiff not discharging his burden of establishing such loss in at least one of them.
The Legislative Interpretation Argument
228In anticipation that I might find that the plaintiff has a work capacity in suitable employment that has resulted in a requisite loss of earnings, the parties agitated a competing set of submissions about the applicable test for a Court to be satisfied not just of the proof of a loss of earnings of the requisite extent at the date of hearing, or of the decision, but that the same is permanent.
229Mr Chancellor submitted that the formula provided under subsection 325(2)(f) of the Act has no application to the assessment under subsection 325(2)(e)(ii), and the matter calls to be determined in accordance with common law principles.
230Mr Chancellor relied upon the decision of Lepp v Victorian WorkCover Authority,[185] in support of a submission that the formula expressed in subsection 325(2)(f) has no application to the test for permanence, and the assessment required under subsection 325(2)(e)(ii) is to be conducted in accordance with common law principles.
[185][2023] VCC 905 (“Lepp”).
231Mr Chancellor observed that in Lepp, his Honour Judge Purcell cited Roleff:
The final – and some might say only – issue for determination on the question of loss of earnings is s325(2)(e)(ii) and the question of whether the plaintiff will “after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
This provision requires the Court to conduct a comparison in accordance with common law principles, to determine if the plaintiff has established a loss of earning capacity that will be productive of financial loss of 40 per cent or more.
The common law approach is not shackled to the statutory formula. As was said regarding the common law approach by Heydon JA (as he then was) in State of New South Wales v Moss…
…
I note that the common law approach has been modified to a degree in s325(2)(e)(ii) by the requirement that the loss of earning capacity must be productive of financial loss of 40 per cent or more.
I consider that the plaintiff has made out the requisite loss using common law principles.[186]
[186]Lepp [2023] VCC 905, [54]-[58].
232Consistent with Roleff,[187] Mr Chancellor submitted that section 325(2)(f) does its work with the formula at section 325(2)(e)(i) which states: “…for the purpose of paragraph (e)(i) …”
[187] [2006] VSCA 12.
233Mr Kumar submitted that there is at the least, considerable doubt as to the correctness of the plaintiff’s proposition.
234Mr Kumar acknowledged the absence of reference in subsection 325(2)(e)(ii) to the formula contained in subsection (2)(f); nor is there a reference in subsection 325(2)(f) to subsection (2)(e)(ii). Nonetheless, Mr Kumar argued that subsection 325(2)(e)(ii) requires the worker to “continue” to have the requisite loss of earning capacity. Fairly read, Mr Kumar submitted, it is the loss measured at the date of hearing which must “continue permanently” in order for a worker to satisfy the requirement of subsection 325(2)(e)(ii). Mr Kumar contended that in the present case (and for all workers who were not apprentices, or under the age of 26 years at the date of injury), that loss is measured in accordance with the formula expressed in subsection 325(2)(f).
235Mr Kumar submitted that the approach is consistent with Barwon Spinners in which Phillips JA (for the Court) stated:
Paragraph (e) expressly casts upon the worker the burden of establishing that he or she has, at the date of the hearing of the application, “a loss of earning capacity of 40 per centum or more” and that the loss will “continue permanently”. As we have seen, para (f) then explains how to measure the loss…[188]
[188]Barwon Spinners (2005) 14 VR 622, 637 [29].
236Mr Kumar’s point was that the plaintiff’s interpretation would require two different methodologies for the assessment of loss of earning capacity, but, in respect of the loss after the date of hearing, it would exclude the concept of “suitable employment”. Mr Kumar submitted that such exclusion is difficult to justify, particularly in light of subsection 325(2)(g), which requires consideration of “the worker’s capacity for suitable employment after the injury”.
237Mr Kumar also submitted that an assessment in accordance with common law principles as relied on by the plaintiff would raise concepts such as “employability”. In Barwon Spinners, Phillips JA stated:
Accordingly, we would reject the argument that paras (e)-(g) of subs (38) are concerned with anything but the physical or mental capacity of the injured worker to work again.
That appears consistent, too, with the expression found in para (b) of subs (38), and as well para (c) – namely:
… when judged by comparison with other cases in the range of possible impairments or losses of a body function …
That describes an objective test, not a subjective one, and it supposes a wide spectrum of cases which, if the argument about non-employability by reason of the making of the claim were accepted, would be very significantly reduced – and reduced without sufficient justification.[189]
[189]Ibid, 637 [28].
238Mr Kumar had recourse to the Second Reading Speech and in particular, that:
…in order to ensure the measure of economic loss required to be found as a serious consequence is consistent with that found in Humphries v. Poljak and Petkovski v. Galletti the bill provides an objective criterion of a loss of earning capacity measured at the date of the application as a loss of earning capacity of 40 per cent or more and also continuing to be a permanent loss of earning capacity of that degree.
The loss of earning capacity is to be measured by firstly comparing the worker’s income from personal exertion or capacity to earn income on a before-injury and after injury basis. The focus time period for determining the capacity to earn income on a before-injury basis is limited to three years before the injury and three years after the injury in order to remove open-ended enquiries which may have varying degrees of speculative judgment…[190]
[190]Hansard, Legislative Assembly, 13 April 2000, page 1003 (emphasis added).
239By reference to the Second Reading Speech, Mr Kumar submitted that the intention of parliament can be gleaned, and that intention is that the formula in subsection 325(2)(f) is applicable in respect of the assessment of loss of earning capacity as at the date of hearing, and into the foreseeable future. Mr Kumar emphasised that the Second Reading Speech made plain that “the usual common-law position prevails” only in respect of workers under the age of 26 years at the date of injury.
240Mr Chancellor contended that the defendant’s submissions invite a “novel interpretation of the statute”, the workability of which is unclear as there is no logical way to apply subsection 325(2)(f) test to future loss of earning capacity.
241Mr Chancellor disputed the defendant’s submission that the parliamentary intention is plain, but that in any event, he contended the argument fails to address subsection 325(2)(f), where there is no such requirement in connection with the application of paragraph (2)(e)(ii). Thus, Mr Chancellor argued that the language is plain and that subsection 325(2)(f) does not apply to codify the formula economic loss into the foreseeable future.
242In Roleff,[191] Ashely JA on behalf of the Court of Appeal, accepted that determination of whether a loss of earning capacity of 40 per cent or more will continue permanently, requires a comparison as on a common law trial. By way of obiter his Honour said:
I accept the submission for the respondent that determination whether a loss of earning capacity of 40 per cent or more will continue permanently requires a comparison as on a common law trial, in which it is proper for the plaintiff to rely upon what he or she would be earning at time of trial. So to conclude is consistent with the text of s 134AB (38)(e), because the task for the purposes of paragraph (i) requires recourse to sub-s (38)(f), whereas there is no such requirement in connection with the application of paragraph (ii).[192]
[191] [2006] VSCA 12.
[192]Ibid [30].
243Lastly, Mr Chancellor contended that subsection 325(2)(g) is specifically linked to subsection 325(2)(f), and therefore also has no application to future loss of earning capacity and that a consideration of suitable employment is irrelevant.
244Ultimately, the question does not arise for determination but had it proved necessary to decide the point, then I would have preferred the submissions advanced by Mr Chancellor and would have applied the reasoning of Ashely JA in Roleff[193] and the approach adopted by his Honour Judge Purcell in Lepp.[194]
[193] [2006] VSCA 12.
[194] [2023] VCC 905.
Conclusion
245I accept the plaintiff’s account of the very many physical activities and pursuits that he was able to perform and engage in, but which are now lost to him or are severely restricted as a result of his organic injury that is accompanied by chronic pain.
246I am satisfied that the plaintiff suffers a severe mental disturbance or behavioural disorder under paragraph (c) of the definition of serious injury, such that in isolation it is sufficient to justify a certificate for pain and suffering consequences. I am also satisfied that in respect of a loss of earnings claim, that the effects of his injury under paragraph (c), have themselves been sufficiently and separately identified as to preclude a capacity for work or in suitable employment and that being so, the loss is a matter of very considerable consequence and also entitles the plaintiff to the relief claimed for a serious injury certificate.[195]
[195] Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170, [63].
247I am satisfied that the plaintiff’s pain and suffering under paragraph (a) of the definition of injury has resulted in very considerable consequences that are permanent and that he has proved his claim for a loss of earnings that is permanent and he is therefore entitled to a serious injury certificate on both heads.
248I will grant the relief sought in the application for certificates for both pain and suffering and loss of earning capacity under paragraph (a) and paragraph (c). I will hear the parties on the form of final orders.
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