Hoang v Envotec Pty Ltd
[2012] VCC 1167
•15 August 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-03778
| Thu Hoang | Plaintiff |
| v | |
| Envotec Pty Ltd (under external administration) | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 & 15 August 2012 | |
DATE OF JUDGMENT: | 15 August 2012 | |
CASE MAY BE CITED AS: | Hoang v Envotec Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1167 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 (Vic) – s134AB(16)(b) – permanent impairment of a body function – injury to right wrist – loss of earning capacity and pain and suffering – residual work capacity – suitable employment
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N. Horner | Ellis Palmos & Co |
| For the Defendant | Mr M. Hooper | Lander & Rogers |
HER HONOUR:
1 The plaintiff applies under s 134AB (16)(b) of the Accident Compensation Act1985 (Vic) (the Act) for leave to issue proceedings for the recovery of damages for loss of earning capacity and pain and suffering in respect of an injury to the right wrist[1] sustained during the course of her employment as a packer with the defendant, particularly from around February 2005. The injury relied upon is that diagnosed by the treating plastic surgeon, Mr Damon Thomas, as tenovaginitis of the right wrist affecting the flexor carpi radialis tendon and also the 1st dorsal extensor compartment.[2] The impairment relied upon is a loss of function in the right hand.
[1]Mr Thomas diagnosed bilateral tenovaginitis affecting the flexor carpi radialis tendon and also the 1st dorsal extensor compartment, with the condition being worse in the right hand. The plaintiff is right-handed. Her case at the hearing before me focused on the right wrist.
[2]Plaintiff’s Court Book (PCB) p69.
2 The plaintiff says that she is permanently incapacitated for her pre-injury employment by virtue of her right wrist impairment. She says that she has tried to improve her English and has applied for hundreds of jobs[3] but does not have the necessary skills or level of English to obtain suitable employment for which she is physically capable. In this regard she relies on the vocational assessment report of Ms Louise Meilak.[4]
[3]Transcript p41.
[4]PCB p126.
3 In relation to pain and suffering, the plaintiff says that she suffers right wrist pain and swelling most weeks, lasting three or four days. The pain and swelling are brought on by repetitive activity of any kind, and occasionally comes on by itself. When she has pain, she takes Panadol. When she has pain, her sleep is interrupted. She avoids repetitive activities which are likely to aggravate the pain. This means that she has limited the cleaning, shopping, cooking and gardening activities which she used to undertake. She is also limited in the activities she can do with her daughters, such as playing games. Her driving tolerance is now limited. She cannot carry heavy weights and has difficulty writing. She has lost the ability to work in the occupation to which she was suited having regard to her work experience, skills and level of English. She says that the pain and suffering consequences of her right wrist impairment are more than considerable when compared with other cases in the range of impairments of the function of the right upper limb.
4 The defendant agrees that the plaintiff has suffered a permanent impairment of the function of the right wrist[5] and is permanently unfit for her pre-injury duties. However, the defendant relies on the opinion of occupational physician Dr Dominic Yong[6] to the effect that the plaintiff is physically capable of working as a food demonstrator, shop assistant, administration assistant, receptionist, “sales assistant-light items”, general clerk (entry level), school crossing supervisor and market researcher/interviewer, and that these positions comply with the restrictions he imposed on her. The defendant also says that the plaintiff’s English has improved and continues to improve and that she is highly motivated to find work. For this reason the defendant says that the plaintiff has not discharged the onus she bears to establish a permanent loss of working capacity. The defendant also says that the pain and suffering consequences of the right wrist impairment are significant but not more than considerable when compared with other cases in the range of impairments of the function of the right upper limb.
[5]Liability for the right wrist injury, among others, was accepted by the defendant by letter to the plaintiff dated 25 November 2010: PCB 120.
[6]Defendant’s Court Book (DCB) p20.
5 For the reasons set out below, I consider that the plaintiff has made out her case in relation to the impairment of the right wrist.
The hearing
6 The plaintiff gave evidence and was cross-examined. No other witnesses were called. The parties each tendered a court book containing the material upon which they relied. I have considered all of the evidence relied upon by the parties.
Plaintiff’s evidence
7 The plaintiff is 42 years old and right-handed. She was educated to Year 12 level in Vietnam and worked as a machinist and in quality control before marrying and coming to Australia in 1998. She worked as a casual bench hand until she started work for the defendant. Her work for the defendant involved packing envelopes into boxes, without rotation, all day each day. She experienced pain in both wrists in early 2005 and in August 2007 her wrists became particularly painful and she saw a general practitioner, Dr Arnold Schmerling, who put her on modified duties. She had some radiological investigations and a cortisone injection into the right wrist in 2008, some further scans in 2009, and then right wrist surgery (a decompression of her flexor carpi radialis tendon) by Mr Thomas in January 2010. After the surgery, she returned to work on modified duties for 25 hours per week (five hours each day) in what the parties agree was a made-up job. She continued to perform those duties until 30 June 2011 when the factory closed. Since that time, she has made over 250 job applications, all of them unsuccessful.
8 I found the plaintiff to be a most impressive witness. She had the assistance of an interpreter at the hearing. She was able at times to understand basic questions and to answer them in English. However, her English was limited, halting and quite difficult to understand. Whenever the questions were more complex, she required the assistance of the interpreter. It was clear from her evidence that she has been highly motivated to obtain suitable employment. She has made over 250 job applications for various positions, including for some positions for which she clearly lacks the relevant training, experience or English skills. Her evidence was that she can write with her right hand but can only type slowly and for short periods. If she types for longer, her right wrist hurts. She then has to switch to a non-repetitive task. She uses a computer at TAFE in her English course, but only for short periods of time. She has a computer at home and knows how to access the internet. She has applied for many office jobs, including jobs requiring the Vietnamese language, but has not obtained any such position. She says on many occasions the feedback to her from employers or recruitment agencies in relation to her application for office or administrative work has been that her English is not good enough. However, she agreed in cross-examination that she had applied for many jobs as an administrative assistant or as a general clerk, and would like to perform such a job if it given the chance.
9 In the light of my reasons below, it is not necessary for me to canvass her evidence concerning the pain and suffering consequences of her right wrist injury.
Other lay evidence
10 The plaintiff’s husband, Mr Van Binh Bui, provided an affidavit[7] in which he confirmed that since the work-related wrist injury he has helped her with heavy tasks, such as carrying the laundry basket, and that she has difficulty sleeping when she has pain.
[7]PCB p25.
Medical evidence
11 There appears to be some difference of opinion between the surgeons and the rheumatologists as to the precise diagnosis of the plaintiff’s right wrist condition. The difference of opinion is not significant in this case because the defendant has conceded for the purposes of the hearing that even if the plaintiff’s right wrist condition is an inflammatory condition rather than a synovitis or tenovaginits, the condition became symptomatic in the course of repetitive duties at work and has resulted in a permanent incapacity for pre-injury duties.
12 For the sake of completeness, however, I refer briefly to the medical material relied on by the parties.
Radiology
13 X-ray of both wrists on 9 January 2008 was normal.[8]
[8]PCB p30.
14 A bone scan of both wrists on 4 February 2008[9] was reported as showing “low grade diffuse synovitis of the wrists”.
[9]PCB p31.
15 Bilateral wrist ultrasound on 19 March 2009[10] was reported as showing findings “consistent with mild bilateral flexor carpi radialis tenosynovitis, more marked on the right”.
[10]PCB p33.
16 MRI of the right wrist on 28 July 2009[11] was reported with the following conclusion:
Mild right wrist joint effusion. Cause not evident however the possibility of an underlying arthropathy is raised. There are no erosions. Patchy marrow oedema of the trapezium and to a lesser extent trapezoid and base of 2nd metacarpal noted although joint space preserved. No tendinopathy/tenosynovitis.
[11]PCB p34.
17 MRI of the right wrist[12] on 5 August 2011 was reported with the following conclusion:
1. ECU subluxation and split tear on background of teninosis and tenosynovitis.
2. Fraying of the central portion of the TFC and oedema at its dorsal band, with positive ulnar variance and distal radioulnar joint effusion.
3. Chronic incomplete tear of the volar band of the scaphounate ligament.
4. No synovitis.
[12]PCB p36.
18 MRI of the right wrist on 18 January 2012[13] was reported with the following conclusion:
The appearances are consistent with low grade synovitis. Full thickness tear membranous and volar portions scapholunate ligament. The other ligaments are intact. No evidence of tenosynovitis.
Medical reports
[13]PCB p37.
19 The plaintiff’s treating general practitioner, Dr Arnold Shmerling, reported on 17 May 2010 that her symptoms and condition were aggravated by her packing work and flared up every time she would be returned to her regular duties. He noted that Mr Thomas was supervising her graduated return to work.
20 Dr Kevin Fraser, rheumatologist, provided a report dated 29 January 2010 to the defendant’s insurer[14] in which he opined that that the plaintiff probably has FCR tenosynovitis, worse on the right than on the left, related to her activities at work packing envelopes. He left it to her treating hand surgeon to determine when she would be fit to return to work to her previous part-time light duties.
[14]DCB p67.
21 Dr Mark Patrick, rheumatologist, reported on 22 September 2010 a diagnosis of “bilateral right greater than left repetitive wrist synovitis with right De Quervain’s tendonitis also noted”. He felt that she should not return to her pre-injury repetitive work but could do office work without restrictions, although he recommended assessment by an occupational physician.
22 Mr Damon Thomas, plastic and reconstructive surgeon, reported on 18 May 2010[15] that after surgery on the right wrist in January 2010 the plaintiff had symptomatically improved with pain but had had “intermittent flares of tenovaginitis affecting other areas of the same wrist which is limiting her function”. He noted that she was having hand therapy. He felt that her right wrist condition was related to the repetitive duties performed at work. He felt that she was permanently incapacitated for pre-injury duties but was able to work “in a modified role avoiding repetitive activities which cause aggravation”, and should be retrained for such alternative work.
[15]PCB p69.
23 On 6 October 2010 Mr Thomas reported[16] that the plaintiff was suffering from work-related “chronic bilateral wrist tenosynovitis affecting the flexor carpal radialis, abductor pollicis longus and extensor pollicis brevis tendons”. He felt that she could not return to her pre-injury duties. He imposed restrictions of “light activities with both hands incorporating the ability to wear wrist splints and lifting weights less than 0.5 kgs and avoiding repetitive activities”.
[16]PCB p71.
24 On 13 October 2010, Dr Sim Aung, general practitioner, reported[17] that the plaintiff was on alternative duties using a right hand splint. He stated that she could not use her right wrist to perform repetitive tasks like packing boxes, and could not return to her pre-injury duties. Dr Aung referred the plaintiff to Mr Stephen Tham, plastic surgeon.
[17]PCB p73.
25 On 10 November 2011, Mr Tham, plastic surgeon, reported[18] that he found the plaintiff’s symptoms “quite non-specific and in view of the unremarkable radiological findings” he elected to treat her with hand therapy. He suggested review by a rheumatologist. He concluded that in the light of her ongoing wrist symptoms the plaintiff should not return to her pre-injury work. He imposed restrictions precluding repetitive flexion/extension of the wrist or repeat flexion/extension of the fingers, repetitive lifting, lifting of more than 1kg, repetitive typing, dishwashing, cash register operation or data entry. However he felt that these tasks could be performed if it was not on a repetitive basis. In a supplementary report dated 1 June 2012,[19] Mr Tham opined that the plaintiff’s diffuse symptoms were “likely aggravated by her employment activities as an envelope packer”.
[18]PCB p76.
[19]PCB p78.
26 Mr Donald Marshall, plastic surgeon, reported on 16 November 2010[20] that the plaintiff was suffering from work-related tenosynovitis and was permanently incapacitated from returning to her pre-injury duties, but could continue doing light duties “while protecting the wrist”.
[20]DCB p4.
27 On 2 May 2012, Dr Tony Kostos, rheumatologist, reported[21] that he was satisfied that the MRI of January 2012 established a diagnosis of synovitis without any evidence of tenosynovitis. However, he concluded that her condition was “a seronegative inflammatory arthritis which is an autoimmune condition, not related to her employment in any way”.[22]
[21]DCB p12.
[22]I note that the defendant relied on this report only insofar as it was consistent with Dr Pun’s diagnosis of inflammatory arthritis, and conceded that the plaintiff’s condition was aggravated by her negative repetitive work duties: Transcript p50.
28 On 18 July 2012, Dr Yvonne Pun, the plaintiff’s treating rheumatologist, reported that she initially diagnosed low-grade synovitis resulting from repetitive work as a packer, the persistence of the condition raised the possibility of an inflammatory arthropathy which could be treated with Methotrexate and Folic Acid. A trial of those medications began in May 2012 and is still ongoing. Dr Pun concluded that regardless of whether the plaintiff’s condition was properly diagnosed as inflammation secondary to physical strain or as an inflammatory arthropathy “that has either arisen de novo, or has developed in the wrists which have been predisposed to by previous physical strain”, her employment activities as a packer have contributed to the development of the condition.
29 Mr Stanley Schofield, orthopaedic surgeon, provided two medico-legal reports. In his first report dated 25 March 2011,[23] he diagnosed bilateral de Quervain’s tenosynovitis affecting the wrist joint, which is more severe on the right side despite surgery. He felt that the condition was likely to be permanent, but that the plaintiff had the capacity for the part-time suitable employment she was then doing, five hours per day. In his second report dated 3 June 2012,[24] Mr Schofield diagnosed work-related post-traumatic synovitis and tendinosis. He felt that to the extent that her condition was an inflammatory one, it was not spontaneous but rather a post-traumatic condition. In this regard, he disagreed with the opinion of Dr Kostos.
[23]PCB p83.
[24]PCB p89.
30 Dr Yong, occupational physician, reported on 20 July 2012[25] that the plaintiff had a current capacity to perform employment which did not involve repetitive right hand gripping tasks, repetitive wrist movement tasks or repetitive lifting of more than 6kgs. He considered that a number of employment options identified in vocational assessment reports would comply with these restrictions: food demonstrator, shop assistant, administration assistant, receptionist, “sales assistant – light items”, general clerk (entry level position), school crossing supervisor and market researcher/interviewer. As none of the vocational assessments or other evidence revealed the existence in the market place of a position entitled “sales assistant-light items”, I will ignore this so-called option in the balance of these reasons.
[25]DCB p15.
English skills
31 The plaintiff underwent a standardised international English test[26] on 4 December 2010. The test rated the plaintiff on listening, reading, writing and speaking English. She achieved an overall score of 4.5 out of 9. Her individual scores were 4.0 for listening, 3.5 for reading, 4.0 for writing and 5.5 for speaking. The explanation of scores in the Test Report[27] reveals that a score of 9 indicates an “expert user”. A score of 3 indicates an “extremely limited user” (“Conveys and understands only general meaning in very familiar situations. Frequent breakdowns in communication occur”). A score of 4 indicates a “limited user” (“Basic competence is limited to familiar situations. Has frequent problems in understanding and expression. Is not able to use complex language”). A score of 5 indicates a “modest user” (“Has partial command of the language, coping with overall meaning in most situations, though is likely to make many mistakes. Should be able to handle basic communications in own field”). A score of 6 indicates a “competent user” (“Has generally effective command of the language despite some inaccuracies, inappropriacies and misunderstandings. Can use and understand fairly complex language, particularly in familiar situations”).
[26]The International English Language Testing System (IELTS).
[27]PCB p120b.
32 The plaintiff’s evidence was to the effect that she successfully completed Certificate II in English at TAFE and is currently undertaking Certificate III studies in English at TAFE, where she is attending five hours per day, five days per week. She said she did not know if she was likely to finish the Certificate III this year, and this would depend on the assessment of her teachers.
Vocational assessment reports and labour market information reports
33 Mr Troy O’Brien of IPAR Rehabilitation Pty Ltd prepared a vocational assessment report dated 26 October 2010[28], a vocational assessment refresher report dated 8 May 2011[29], and a job seeker plan dated 27 June 2011.[30]
[28]DCB p57.
[29]DCB p22.
[30]DCB p41.
34 In his more recent vocational assessment refresher report, he noted that the plaintiff was currently certified by Dr Aung as fit for light duties five hours per day with no repetitive activity with the right wrist. The plaintiff indicated her desire to work in an office but felt that her English was a weakness. Mr O’Brien noted the results of an English language test which indicated that she has limited to modest English skills in the areas of listening, reading, writing and speaking. According to Mr O’Brien, the plaintiff told him she was confident in using computers.
35 Mr O’Brien identified a number of positions which he felt constituted suitable employment options for the plaintiff. As the defendant relied on the opinion of Dr Yong concerning physical capacity for suitable positions, it is only necessary to canvass Mr O’Brien’s opinion insofar as it relates to the positions considered by Dr Yong. These included food demonstrator and general clerk.
36 In relation to the option of general clerk, Mr O’Brien opined:
At the time of assessment Ms Hoang expressed motivation to work in this role. Employment in this role would allow Ms Hoang to exercise care in avoiding repetitive wrist movement. Current labour market information indicates that the prospects of obtaining employment in this role are “not too hard”. Prior to seeking employment in this areas Ms Hoang would need to complete a short office administration course, however this should be done after completing further English classes.
37 In relation to the option of food demonstrator. Mr O’Brien opined:
Ms Hoang has the physical capacity to succeed in this role. The physical demands of this option are generally light. No formal qualification is required to work as a Food Demonstrator, and training related to product development is generally provided upon commencement of employment.
38 In the job seeker plan, Mr O’Brien noted that the plaintiff had attended a number of appointments with the provider and was continuing to apply for jobs. He noted the plaintiff’s concern that “her major barriers to employment are her spoken and written English skills, and also her lack of computer literacy”. He noted that “these will be the focus of the program together with preparing her to actively and effectively job seek for the employment options identified in the vocational assessment”. He identified a number of “key job seeking gaps to target”: English language barrier; basic computer skills; and “actively cold canvassing suitable employers”. He noted that the plaintiff was attending English classes five hours per day, five days per week.
39 Ms Meilak, human resources consultant, of Flexi Personnel, provided a vocational assessment report dated 11 January 2012.[31] She considered a number of employment options. Relevantly, in the light of the defendant’s submissions, these positions were those of general clerk, food demonstrator, shop assistant, administrative assistant and receptionist.
[31]PCB 128
40 In relation to the position of food demonstrator, Ms Meilak wrote:
Duties – Market product and promotional information to shopping centre customers and provide free product samples.
As a food demonstrator, Thu would generally be required to carry heavy items such as boxes of the goods being promoted, frying pans, promotional stands etc. If she was required to carry these items, I do not believe Thu would be able to perform this role. She may also have problems assisting customers, due to her average English verbal communication skills. She may be able to perform the role however if she did not have to carry heavy items, set up promotional stands or use her wrists/fingers on a repetitive basis.
41 In relation to the positions of shop assistant, Ms Meilak noted:
Duties: Determining customer requirements, advising on the product range, price, delivery, etc; demonstrating and explaining to customers the goods and services; operating a cash register and stacking and displaying goods for sale, and wrapping and packing goods sold.
Given the often heavy nature of this role and the necessity to constantly be using her hands, and given her restrictions, Thu would not be able to perform this role to an acceptable level. She may also have problems assisting customers, due to her average English verbal communication skills.
42 In relation to the position of administrative assistant, Ms Meilak noted:
Duties – recording, preparing, sorting, classifying and filing information; receiving letters and telephone messages; photocopying and faxing documents; typing business letters and reports; may provide customers with information about services and may perform other duties such as banking, credit control or payroll functions.
Depending on the level of requirements for this role, Thu may be able to perform this role if her restrictions were able to be accommodated and she could perform regular tasks on a regular basis. She could not however be able to perform this role unrestricted.
43 In relation to the position of receptionist, Ms Meilak noted:
Duties – greeting and welcoming visitors, and directing them to the appropriate person; answering, connecting and transferring telephone calls; answering inquiries and providing information on the goods, services and activities of the organisation; and may perform other clerical tasks such as word processing, data entry, filing, mail despatch and photocopying.
For this role, a high level of verbal communication skills are essential. Given Thu’s average English verbal communications skills, I do not believe she would be able to perform this role to an acceptable level.
44 Ms Meilak concluded:
In summary, in my opinion as a recruitment consultant, I do not believe that Thu has the capacity to perform all of the elements of any of the job options listed on an unrestricted basis, either full time or part time. Even with those positions of a less manual nature, the physical work duties usually require the full use of both arms/hands. Thu’s pain and dominant right arm/hand restrictions would be barriers to Thu successfully performing all of the required key performance indicators for these roles.
45 I note the defendant’s submission that little weight should be attached to the report of Ms Meilak because she may have expertise and/or experience in occupational health and safety, human resources and recruitment but is not an expert qualified in occupational therapy or medicine; and, secondly, that she does not properly articulate where the job descriptions in her report are sourced from
46 Mr Nicholas Janides, occupational rehabilitation consultant at Healthe.Work, provided a report dated 12 January 2012[32] in which he set out the English competencies required for the positions of food demonstrator, sales assistant, administration assistant and receptionist. According to his report, the position of food demonstrator requires “good” English competency in all four elements: speaking, listening, reading and writing. The position of sales assistant requires “average (upper range)” competency in speaking and listening but “average (lower range)” competency in reading and writing. The position of administration assistant requires “Average-Upper range” English competency in speaking, reading and listening, but only “good” competency in writing. The position of receptionist requires “average-upper range” competency in all four elements.
[32]DCB p45.
47 In a further report dated 9 July 2012,[33] Mr Janides provided what he described as “wage information” in relation to the job options he “recommended”: sales assistant – light items; general clerk- entry level position; schools crossing supervisor; and market researcher/interviewer. However, his analysis of the options appears to be a hypothetical construct in which the plaintiff would be employed by Vietnamese small business owners, or do market research with Vietnamese speaking individuals.
[33]DCB p51.
Legal Principles
48 In order to make out the serious injury within paragraph (a) of the definition in s 134AB(37) of the Act, the plaintiff must establish that she has suffered a permanent serious impairment or loss of a body function, and that the consequences to her in terms of loss of earning capacity and pain and suffering 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.[34] The Court must consider the impairment of a body function suffered by the particular applicant, but the test also requires an objective comparison between the impairment suffered by the applicant and the range of possible impairments.[35]
[34]Accident Compensation Act 1985 (Vic) s 134AB(38)(c).
[35]Sabo v George Weston Foods [2009] VSCA 242, [66]; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [42].
49 On the authorities, decisions as to whether an injury is serious involve elements of fact, degree and value judgment.[36] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[37]
[36]Fleming v Hutchinson (1991) 66 ALJR 211.
[37]Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172, [58].
50 The whole of the evidence before the court should be considered, not just the medical evidence.[38]
[38]Ibid [85]. See also Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, [170].
51 Where loss of earning capacity is alleged, leave to issue proceedings is not to be granted unless the plaintiff establishes that, as at the date of the hearing, as a result of the injury she has suffered a permanent loss of earning capacity of 40 per cent or more.
52 Section 134AB(38)(g) of the Act requires the plaintiff to establish that she would not, given her capacity for suitable employment[39] after the injury and, where applicable, the reasonableness of her attempts to participate in rehabilitation or retraining, have the capacity for any employment which, if exercised, would result in her earning more than 60 per cent of her earnings, “as determined in accordance with paragraph (f) had the injury not occurred”.
The definition of “suitable employment” was amended by s 74(3) of the Accident Compensation Amendment Act 2010 (Vic). It means employment in work for which the worker is suited regardless of whether the work or the employment is available or whether the work or the employment is of a type or nature that is generally available in the employment market.
53 Where a plaintiff claiming to have suffered serious injury consequences in terms of both pain and suffering and loss of earning capacity satisfies the loss of earning capacity requirements of s 134AB, that plaintiff is entitled to claim damages for both loss of earning capacity and pain and suffering. It is therefore not necessary for the Court in those circumstances to determine whether the plaintiff has established the pain and suffering limb of the application.[40]
See Advanced Wire & Cable Pty Ltdand Victorian WorkCover Authority [2009] VSCA 170, [63]; Aluthgamage v Select Care Personnel Pty Ltd [2012] VSCA 111.
54 Expert opinion evidence concerning whether an injured person is able to do a particular job should only be given by a medical practitioner if he or she has specialist occupational health and safety qualifications or experience.[41]
[41]Paul Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 [36]
Findings and reasons
55 I consider that, as a specialist occupational physician, Dr Yong is in the best position to give an expert opinion concerning the plaintiff’s physical capacity to undertake the jobs identified by the defendant as suitable employment options. Dr Yong considered the plaintiff to be physically capable of performing work as a food demonstrator, shop assistant, administration assistant, receptionist, general clerk, school crossing supervisor and market researcher/interviewer. I prefer his evidence as to the plaintiff’s physical capacity to do these positions over any evidence to the contrary, particularly over any conclusions reached by Ms Meilak (who lacks the necessary expertise to opine in this regard) concerning the plaintiff’s physical capacity.
56 I therefore accept that the plaintiff may be physically capable of performing the roles outlined in the previous paragraph. However, that is not the end of the matter. Section 5 of the Act provides that determination of “suitable employment” requires consideration not just of the worker’s incapacity but also, relevantly, of the worker’s age, education, skills and work experience.[42]
[42]See sub-paragraph (a)(iii) of the definition of “suitable employment” in s.5 of the Act
57 The evidence relevant to these considerations is evidence concerning the competencies required for the proposed positions and evidence concerning the plaintiff’s English language skills, as well as her education, skills and work experience.
58 I turn to the reports of Mr Janides. In his first report, he outlined the English language competencies required for the options advanced by the defendant. I find that when comparing the competencies required with the standard achieved by the plaintiff when she was tested in December 2010 or even with the arguably improved level of English demonstrated at the hearing, the plaintiff clearly lacks the relevant English competencies for each of the proposed positions. I note that by the time of his second report, it appears that Mr Janides has accepted that the plaintiff lacks those competencies, because each of the options is then recast as one in which, hypothetically, the plaintiff would be either employed by Vietnamese small business owners, presumably because this would relieve her of the need for good working English, or do market research interviewing people in Vietnamese (thereby hardly needing any English at all). I found his second report to be of no assistance, particularly in the light of the compelling evidence from the plaintiff concerning the job applications she has made, unsuccessfully, for administrative and clerical positions advertised in Vietnamese language newspapers by Vietnamese speaking employers. Her evidence was to the effect that the feedback to her from such prospective employers is that she lacks the necessary English skills to do the duties required.
59 I also consider that, in spite of the fact that in her made-up job with the defendant she performed some administrative duties such as simple data entry, filing, using printers and photocopiers, she has no work experience as a sales assistant, food demonstrator, administration assistant, general clerk, market researcher, or school crossing supervisor. I note that even Mr O’Brien felt that she would need to do an office administration course after completing her further English classes, before working as a general clerk. He also felt that she needed to acquire basic computer skills.
60 I accept the defendant’s submission that the plaintiff is an intelligent, highly motivated woman who is continuing to study English at her own expense and has shown herself able to apply for many jobs.
61 The plaintiff arrived in Australia at the age of 28 with no English and worked in repetitive manual handling positions until her injury. The medical consensus is that as a result of her work-related injury she is permanently unable to undertake repetitive manual work and should be retrained into non-repetitive sedentary or administrative work. I am satisfied that she has done everything possible to improve her English and to look for work. She is paying her own way in the Certificate 3 course.
62 However, I am satisfied on the evidence before me that notwithstanding these efforts and her high level of motivation, given her age, experience and poor English, the plaintiff’s work capacity has been entirely extinguished by her right wrist impairment. It follows that I am satisfied the loss of earning capacity consequences of her impairment are more than considerable when compared with other cases in the range of permanent impairments, and that the plaintiff has made out the requirement to establish a permanent loss of earning capacity of 40 per cent or more. As leave is granted on this basis, it is not necessary for me to determine the pain and suffering limb of the application.
Conclusion
63 Leave is granted to the plaintiff to bring proceedings for the recovery of damages in respect of an injury to the right wrist sustained during the course of her employment with the defendant, particularly from around February 2005. I reserve the question of costs.
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