Heald v Victorian WorkCover Authority
[2021] VCC 1474
•8 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-00200
| GILLIAN HEALD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 13 September 2021 | |
DATE OF JUDGMENT: | 8 October 2021 | |
CASE MAY BE CITED AS: | Heald v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1474 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – pecuniary loss – left foot injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Acir v Frosster Pty Ltd [2009] VSC 454; Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Barwon Spinners & Ors v Podolak (2005) 14 VR 622
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith QC with Mr A Dimsey | Zaparas Lawyers |
| For the Defendant | Mr L Allan | IDP Lawyers |
HER HONOUR:
1The plaintiff, Ms Gillian Heald, is a fifty-eight-year-old woman. She makes this application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”) for a serious injury certificate for pain and suffering damages and pecuniary loss damages for injuries she sustained to her left foot on 17 October 2017 while employed by Hi Chem Paint Technologies Pty Ltd (“Hi Chem”).
2The defendant has conceded that Ms Heald satisfies the criteria for leave to pursue a claim in relation to pain and suffering damages. The dispute in this case is whether she is entitled to pursue a claim for pecuniary loss.
3Section 325(2)(e)(i) of the WIRC Act requires that the Court must not grant leave to pursue such a claim unless the worker has established that the loss of earning capacity as at the date of the decision is 40 per cent or more. Section 325(2)(e)(ii) of the WIRC Act requires that the loss will continue permanently. Section 325(2)(f) of the WIRC Act requires that the loss of earning capacity is to be measured by comparing –
“…
(i)the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii)the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred.”
4There was no real challenge to Ms Heald’s evidence in relation to the degree of pain and restriction that she suffers because of her foot injury. There was no dispute that Ms Heald would not be able to return to her previous employment. The case was really about whether she retained at least 60 per cent of her pre-injury earning capacity.
5Ms Heald swore two affidavits dated 11 August 2020 and 11 August 2021. She also relied on an affidavit of her daughter, Danielle Heald, sworn 8 August 2021 and an affidavit of her partner, Leslie George Edwards, sworn 9 August 2021. Neither Danielle Heald nor Leslie George Edwards were required for cross-examination.
6Ms Heald otherwise relied on various treating doctor reports and medico-legal opinions.
7The defendant relied on two reports of consultant occupational physician Dr Tim Hwang dated 10 August 2021 and 2 September 2021 and a report of Nikki Burden, vocational consultant and Larissa Griffiths, physiotherapist (“the Recovre report”).
Background
8Ms Heald was employed as a store person/packer when, on 17 October 2017, her left foot was struck by a forklift, causing an amputation of the big toe, and fracture and dislocation of the second and third metatarsals. She had a surgical amputation shortly after and a forefoot reconstruction in June 2019.
9She returned to work at Hi Chem in January 2018 on light duties. At that time, she required a walking stick to ambulate and this made carrying and lifting tasks very difficult. Ultimately, she was terminated from her employment in November 2018 on the basis that she was unfit for the work. She remained unemployed until November 2020, when she obtained work with an organisation called Gelflex which manufacture contact lenses. She is described as a laboratory assistant or a laboratory technician. She got the job through an acquaintance who worked there, and she was particularly attracted to it because it was described to her as a casual job working two or three days a week. She felt that this would suit her “to the ground”.
10For the first few weeks at Gelflex she worked just under thirty hours a week, as she needed to undergo training. Her role at that time involved cleaning the contact lenses after manufacture and sterilising, packaging, invoicing and packing them up for delivery. After the first few weeks of employment her hours reduced significantly. She had regular work at least one day a week, but would frequently be asked to work more often than that. She generally, but not ubiquitously, acceded to those requests.
11At some point in 2021, the employees were informed that the manufacturing aspect of their work would be transferred to Western Australia. From about July 2021, this has resulted in significantly less work being available in Victoria. Ms Heald has continued her job with Gelflex doing similar tasks, but involving trial contact lenses that get sent out to optometrists and subsequently returned. There is less work available and she has only been getting one day a week on average, and sometimes less.
12There is no dispute that she has sustained a loss of earnings, given that prior to her injury she was working 35 hours per week with some weekend overtime work, and she is now working between four and seven-and-a-half hours a week.
13The fundamental dispute in this case is whether Ms Heald’s current employment represents the extent of her capacity, or whether she has in fact retained a greater earning capacity.
The injury
14There is no real dispute in this case as to the extent of Ms Heald’s injury and the pain it causes her. She has constant pain in her left foot. At times the pain is severe with a burning feeling. She has pain in the bone at the base of her foot which hurts when she weight bears. The pain worsens with increased use, so standing or walking for prolonged periods is difficult. However, sitting for long periods is also uncomfortable. She has numbness and tingling when she sits for too long without the foot elevated. When her foot goes numb she tries to alleviate this by moving the foot, shaking it and sometimes standing up if the foot is not completely numb and she is able to stand. This does not happen as much if the foot is elevated in a recliner chair, but does happen with sitting on a normal chair, even with a footrest.
15At night, she sleeps with a bedframe to lift the bed covers off her foot. She does not sleep well and is often tired. She can drive, but due to the foot injury, the limit of her driving is approximately 20 minutes. Spending too much longer in her manual car causes increased pain.
16She now rarely uses a walker or a walking stick.
Expert material on work capacity
17Counsel for Ms Heald relied on a number of expert reports in relation to her working capacity. In particular, she relied on the report of Dr Myat Aung dated 29 July 2021, in which Dr Aung opines that:
“… [a]s her current job as lab technician involves long standing all day, she get[s] foot pain during and at the end of the work day, I believe that 7.5 hours per week represents the limit of Miss Gillian Heald’s work capacity.”[1]
[1]Plaintiff’s Court Book (“PCB”) 30
18Dr Hazem Akil, neurosurgeon, examined Ms Heald for medico-legal purposes on 22 May 2021 and opined that “the 7½ hours a week that she is currently performing are the maximum limits that I would recommend for her”.
19Dr Symon McCallum, pain physician and specialist anaesthetist, formed the view that Ms Heald needs to have limited episodes of prolonged standing and walking and will not be able to do a manual job that involves any prolonged heavy bending, lifting or twisting. He formed the view that she was unable to return to her pre-injury employment as a packer and process worker and that she could do one day a week in her current job. He opined that “She has done more but then the pain has increased and she struggled when she has got home. My concern is that she would not be able to do more hours on a regular reliable manner”. He considered that her current level of hours and duties represents the limit of her work capacity.
20Dr Peter Wilkins, consultant occupational physician, formed the view that the current hours Ms Heald reported as working (that is seven-and-a-half hours a week) represents the limit of her work capacity. He says “I based this conclusion on Ms Heald’s reported symptomatology and confirmed by her treating practitioner and numerous other specialists who have previously examined her”.
21The defendant criticises these opinions as being based on an erroneous assumption by each expert that Ms Heald had only been working one day per week at Gelflex. The defendant says this assumption is plainly incorrect as an assessment of Ms Heald’s payment summaries shows that she has worked more than seven-and-a-half hours almost every week since she commenced at Gelflex. When she has not worked more than seven-and-a-half hours, there is no evidence that this was because her injury prevented her from working longer hours, and there is also no evidence that she turned down work. The reason she worked fewer hours was because of the availability of work, not her injury.
22The defendant says the erroneous assumption by the experts and her treating doctor must significantly undermine the opinions expressed in the reports of those practitioners as to her capacity for work.
23The defendant relies on the opinion of Dr Tim Hwang, consultant occupational physician, who noted that she had worked “up to 30 hours a week or so at maximum but described that there is not much work available now and she is working on average once a week”. He forms the view that her capacity for work is “limited” by her injury and that suitable duties would involve a mixture of sitting/standing duties. “If such duties are available she can undertake these duties on a full-time basis.”
24The defendant says Dr Hwang’s opinion is supported by Ms Heald’s treating orthopaedic surgeon, Professor Ton Tran, who opined in July 2019 that her prognosis was “very favourable” for her to return to full capacity. I pause here to note that his remarks appear to relate to the structural limitations of her partial amputation and he is careful to note that:
“As is the case in crush injuries to the distal aspect of limbs, the possibility of pain from the soft tissue discomfort remains.
In a general sense, this would be the main restricting factor for her being able to resume normal personal, recreational and vocational duties.”[2]
[2]PCB 32-33
25As I understand it, Ms Heald does not suggest that it is the physical deformity of her foot that limits her work capacity, but rather the pain and discomfort she experiences.
26Based on Dr Hwang’s assessment, the defendant relies on the Recovre report dated 9 August 2021. Three positions are identified which the defendant submits would comprise suitable employment for Ms Heald: a packer of medical supplies in Dandenong South, a product tester/lab technician for insultation products in Dandenong, and a production clerk/labeller in Knoxfield.
27The defendant submits that any one of these three jobs is more suitable to Ms Heald’s limitations than her current position at Gelflex, which involves a significant amount of standing and walking, and that part-time employment at a level of three days per week would be entirely suitable for her limitations.
Analysis
28When calculating a worker’s “without injury” earning capacity, the Court is to have regard to the whole of the evidence including:
(a) the hours that the worker had demonstrated a capacity to work, including overtime when offered;
(b) the worker’s own evidence;
(c) the gross yearly amounts disclosed in tax returns; and
(d) the worker’s pay records.[3]
[3]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraph [73] citing Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [165] and Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292 at paragraph [42]
29Ms Heald deposes that her pre-injury earnings were $954 gross per week. She was working as a packer and process worker, earning $27.25 per hour and working occasional overtime. With indexation pursuant to an enterprise agreement which increased the hourly rate applicable to Ms Heald, her counsel submits that the appropriate pre-injury earning capacity figure is $51,087 per annum, or $982.45 gross per week. The defendant submits that the appropriate pre-injury earning capacity, having regard to all the evidence, including that the factory where Ms Heald worked closed in 2020 and the industry rate for her job is significantly lower, is $50,000 per annum, or $962 gross per week.
30For the purposes of the assessment that I make, I must be satisfied that Ms Heald has sustained a loss of earning capacity that would, on her case, be at least $393 per week and, on the defendant’s case, be at least $385 per week.
31I consider that the calculation of Ms Heald’s earning capacity submitted by her counsel is appropriate. The defendant submits that the hourly rate Ms Heald was paid was well in excess of the industry standard, but I have no information about why she was paid this rate, or whether she could have expected, because of her experience, training or particular skill, to continue to expect this rate of pay into the future. Although the Hi Chem factory closed in 2020, I have no information as to why Ms Heald would not have expected to obtain employment in a similar job at a similar rate of pay, had she not been injured. I am bolstered in my view by the fact that her current role pays $27 per hour. Certainly, but for her injury, her earning capacity pre and post the factory shut down would not have changed, and therefore I am satisfied that I can assess her pre-injury earning capacity based on her actual earnings, plus appropriate indexation.
32For Ms Heald to be granted leave to pursue a claim for pecuniary loss, she must establish that she has sustained a loss of earning capacity of $393 gross per week.
33Ms Heald submits that she easily meets this threshold, as her capacity to work is limited to one or two days per week. Although at times she has worked longer hours, including when she first started in the role, she found that caused increased pain and was not sustainable. On 7 January 2021, she attended her general practitioner, Dr Aung, who noted that she had started working a few days a week since Christmas and one week worked four days, but “she might have overdone it”, and that she started having pain in her foot around the cuboid region. She was prescribed Naprosyn and Tramadol.
34Her payment summaries from Gelflex provide that her hours of work varied significantly. Between 21 November 2020 and 19 December 2020. she was working an average of 29.33 hours per week. She says this was while she was being trained. In the period between 19 December 2020 to 2 July 2021, when Gelflex moved its manufacturing operations to Western Australia, her hours varied between 19.12 hours per week and 3.75 hours per week, with an average of 11.7 hours per week. She readily agreed she accepted additional work when it was available, although not all the time. Since 3 July 2021, she has averaged only three hours per week.
35The defendant submits Ms Heald’s work history demonstrates that she can work around 30 hours per week, particularly if the work did not involve extensive walking and standing, which her current role does. At a minimum, the defendant submits she has capacity to work three seven-and-a-half hour shifts per week, especially if they are broken up so that she had a day off in between.
36Ms Heald was taken at length through the various jobs identified in the Recovre report. She readily agreed to propositions put in relation to her capacity to undertake most aspects of those jobs.
37The defendant submits that only Dr Hwang has considered and assessed the jobs proposed by Recovre for suitability, and he is the only expert to have obtained an accurate history of her working capacity. Based on that, the Court ought to accept his opinion that she could work full time in suitable sedentary work and reject the opinions of the other doctors. The defendant says the other doctors were basing opinions on incorrect facts about the number of hours Ms Heald was working. There consequently is no expert evidence before the Court that she has suffered the requisite 40 per cent loss of earning capacity, albeit that she might have an earning capacity greater than one day per week.
38Counsel for Ms Heald submits that Dr Hwang has failed to set out any reasoning for his opinion that she could work full time, as she has not worked in a full-time capacity since the injury. He has not addressed the pain and difficulty she has while seated, which would make a sedentary job unsuitable.
39Counsel submits that the opinions of her treating doctor, Dr Aung, and the occupational physician, Dr Wilkins, ought to be preferred. Regardless of whether they were correctly instructed as to her actual working hours, Dr Aung is best placed to form a view about her work capacity and Dr Wilkins is an occupational physician who is best placed to determine her capacity for different jobs.
40On 8 February 2021, Dr Aung notes:
“she has been worki[ng] 1-2 days a we[e]k
previously tried three days a week
but it is too much
has to be making contact lenses and she is on feet all day long and it is too much”[4]
(sic)
[4]PCB 100
41On 27 July 2021, Dr Aung notes:
“… she is struggling with work mainly due to left foot pain around base of second metatarsal head region where the bone is protru[ding] and there is the metal side; also feeling numbness around the site of the amputate[d] toe region as wel[l]; …
she is doing thi[s] job 7.5 hrs per day; but she cannot take anymore extra hour[s]
going to work mean[s] she has to put on the happy face in the work place and it is hard to do it when she is upset and in pain.”[5]
(sic)
[5]PCB 102
42Ms Heald gave evidence that she wanted the position at Gelflex because it was two to three days which she thought she could manage. It was put to her that when more hours were made available to her, she could do those hours. She agreed that “At that stage” she could. She said she now only felt comfortable doing four hours, though she agreed that had more work been available she would have liked to do more, “depending on the hours”. She disagreed that she would be able to work three days if she had a break in between, for example Monday, Wednesday, Friday. She felt that the limit that she could probably do each week would be about 12 hours, broken down into part days. She said this is:
“Because of feeling so run down after not having a sleep, you know, having a sleepless night, and then I don’t like taking any medication before I go to work as in Panadol to help relieve the pain in the duration of the day because I don’t feel that’s correct anyway. But I mean, if I was able to take Panadol that would probably soothe the pain while I was at work, but I don’t feel I should do that because Panadol I use of a night-time to soothe the pain when I got to bed, because it relaxes me as well and helps me nod off to sleep a bit better, if you understand what I mean.”[6]
[6]Transcript 102, Lines 5-16
43She explained that the effect of Panadol on her is to relax her body and that this can make her feel “really tired and weak and fatigued”. She felt that at work she needed to always be cautious of things around her and she did not think that she was allowed to take any medication at work, without letting a first-aid officer know about it.
44She readily made concessions in relation to the jobs proposed in the Recovre report, agreeing that by and large they seemed like suitable employment and she felt that she could manage them, although she had not previously been a product tester and thought that Knoxfield was further than she could comfortably drive. The defendant submitted that these were all jobs that were as suitable, or more suitable, than her current work, and which she could manage three days a week.
45She agreed that standing and walking are the main restrictions in terms of employment capacity, but that stretching and elevating her foot could help relieve her pain. However, the elevation required to alleviate her pain is quite significant, essentially having the leg out straight in front of her body, a position that would be difficult to accommodate in a workplace. And while she agreed that the job as packer seemed “perfect” in terms of the postural rotation it allowed, she did not agree that she would be able to perform any of the jobs three days a week on a regular basis.
46The defendant submitted that her hesitancy around full-time employment was predominantly psychologically based and should be disregarded. Further, the defendant submitted that her hesitancy to engage in full-time work is likely to be influenced by her experience at Gelflex, which has walking and standing requirements in excess of the roles proposed by Recovre.
47However, I formed the impression that Ms Heald was an experienced worker who had undertaken similar jobs in the past, and had a good understanding about the sort of work that would be involved. She was candid about her restrictions and abilities, and in no way tried to exaggerate what she could or could not do. She was an extremely credible witness and was clearly doing her utmost to be straightforward and honest in her answers at all times. There was not a hint of exaggeration in her evidence. To the contrary, I formed the view that she was a stoic person who put up with considerable pain without complaint. I am satisfied that she accepted additional work when it was available but that, on a long-term basis, the sort of hours she worked initially at Gelflex were not sustainable, as evidenced by her attendances on Dr Aung in January and February 2021.
48While the medical opinions in support of Ms Heald were predicated on somewhat incorrect instructions that she was only working seven-and-a-half hours a week, which tends to weaken the conclusion that these hours equate to her work capacity, Dr Hwang’s opinion suffers from the assumption that she was able to work 30 hours a week on an ongoing basis, and was not doing so only because the work was not available. In fact, it is clear that the intention was never that Ms Heald would work 30 hours on an ongoing basis, and this short period cannot be considered representative of her capacity. It is not obvious how Dr Hwang arrives at his conclusion that, having worked 30 hours a week for a short period, she would have capacity for full-time employment in a sedentary job. It appears that he assumes that she will not experience pain while sitting down and would therefore have no restriction on her working hours. He does not appear to have considered the pain she suffers when sitting for prolonged periods, nor the impact that constant pain and disrupted sleep would likely have on her work capacity.
49I am satisfied, based on Ms Heald’s evidence, that she could not manage full-time work in a sedentary occupation. I am satisfied that the types of jobs identified in the Recovre report represent suitable alternative employment for her.
50The parties agree that Ms Heald has a retained work capacity and consequently the onus is on her to establish that she has suffered the requisite permanent loss of earning capacity.[7]
[7] Barwon Spinners & Ors v Podolak (2005) 14 VR 622 at paragraph [114]
51I accept her evidence about her pain, discomfort, her limitations and her restrictions. Although the expert opinions Ms Heald relies on are based on incorrect information in relation to her work capacity, and therefore somewhat understate her actual work capacity, I nonetheless am satisfied that she has established her loss of earning capacity by the persuasive evidence she gave and by a careful examination of her medical records, which support her evidence that working longer hours is not sustainable.
52I find that Ms Heald has a current work capacity of around 12 hours a week, spread over two or three days, and certainly no more than 15 hours a week spread over two or three days, which would amount to two seven-and-a-half hour days or three five hour days.
53Even in the highest paid job identified in the Recovre report ꟷ as a product tester earning $38.00 per hour ꟷ Ms Heald would not be able to work sufficient hours to exceed 60 per cent of her pre-injury earning capacity.
54Accordingly, she has sustained a loss of earning capacity that entitles her to pursue a claim for pecuniary loss. I grant leave to pursue a claim for damages for both pain and suffering and loss of earning capacity.
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