Holland v Victorian WorkCover Authority
[2024] VCC 807
•30 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-04581
| MARK STEWART HOLLAND | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 May 2024 | |
DATE OF JUDGMENT: | 30 May 2024 | |
CASE MAY BE CITED AS: | Holland v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 807 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the cervical spine – pain and suffering consequences conceded as “serious” – loss of earnings – residual capacity for employment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325
Cases Cited: Humphries and Anor v Poljak [1992] 2 VR 129; Acir v Frosster Pty Ltd [2009] VSC 454; Richter v Driscoll (2016) 51 VR 91; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139
Judgment: Leave granted to commence a proceeding for pain and suffering and pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Mr L Perilli | Zaparas Lawyers |
| For the Defendant | Ms K M Manning | Hall & Wilcox |
HIS HONOUR:
1The plaintiff, Mark Holland, commenced employment with JOII Limited (“JOII”) as a bricklayer in November 2018.
2On 15 April 2019, he was working at a site in Sunnyside Road, Mount Waverley where he was required to set up a new generator. While moving the heavy generator from the back of the tray of a work vehicle, it started to tip, and Mr Holland was injured when he tried to stop it from toppling over (“incident”).
3It is not in dispute that Mr Holland suffered injury to his cervical spine, ultimately requiring a C5-6 anterior cervical decompression and infusion performed by neurosurgeon, Dr Hazem Akil, in May 2022.
4Since the incident, Mr Holland made a number of unsuccessful attempts to return to employment, and has not worked at all since December 2022.
5Mr Holland seeks leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation Compensation Act 2013 (Vic) (“Act”) under paragraph (a) of the relevant definition of “serious injury” for pain and suffering and loss of earnings consequences, being for the permanent serious impairment or loss of a body function.
6The body function relied upon is the cervical spine.
7A claim under paragraph (c) of the definition of “serious injury” for a severe psychological injury was abandoned at trial.
8Appropriately, the Victorian WorkCover Authority (“VWA”) concedes that:
(a) the injury is compensable; and
(b) the pain and suffering consequences of his injury are “serious”.
9On the basis of this concession, I find that Mr Holland’s injury to the spine is productive of ongoing permanent impairment, and the pain and suffering consequences of that injury satisfy the statutory test.
10In my view, Mr Holland’s affidavit material and the medical evidence support a finding as to causation and of a persisting compensable injury to the cervical spine, the consequences of which are “at least ‘very considerable’”.[1]
[1] Humphries and Anor v Poljak [1992] VR 129 at 140
11The VWA submits, however, that the economic loss consequences to Mr Holland do not satisfy the statutory test and that he ought not be granted leave under s335 of the Act to bring common law proceedings to recover pecuniary loss damages.
12The VWA accepts Mr Holland has no capacity to perform his pre-injury employment as a bricklayer or other work involving heavy manual handling.
13The principal factual issue in dispute relates to Mr Holland’s retained capacity for employment, in particular, roles identified in a Recovre vocational assessment report dated 30 January 2024 of pathology courier or courtesy driver.
Evidence
14The plaintiff relied upon his three affidavits affirmed 23 March 2023, 23 May 2024 and 28 May 2024; and lay affidavits of his wife, Melanie Holland, sworn 28 May 2024, and bricklayer, Bryce Gray, affirmed 27 May 2024.
15Each party tendered various medical reports and other documents from their respective court books, and I have read all of the tendered material.
16There are no issues of credit, and I accept Mr Holland is an honest and frank individual who gave his evidence before the Court without equivocation and directly. There was no extraneous material such as video surveillance used to attack his credit, or any suggestion in the medical evidence that he attempted to exaggerate or embellish his situation, either consciously or subconsciously.
17The unchallenged evidence of his wife and Mr Gray confirmed and corroborated substantial parts of Mr Holland’s evidence including:
(a) his degree of pain and suffering;
(b) by his wife, the difficulty Mr Holland has with reading and writing, and his lack of computer skills; and
(c) by Mr Gray, as to unsuccessful attempts to return to work in 2022.
18I accept both Mr Holland’s oral evidence and what is contained in his affidavits.
The legal principles
19The plaintiff bears the onus of demonstrating his impairment is permanent and the economic loss consequences to him, when judged by comparison with other cases in the range of possible impairments or loss of a body function, are fairly described at least as “very considerable” and certainly more than “significant” or “marked” in accordance with the narrative test set out in s325(2)(a), (b) and (c) of the Act.[2]
[2] Humphries and Anor v Poljak (ibid) at 140
20To satisfy the requisite threshold in relation to pecuniary loss, I must also be satisfied that Mr Holland has suffered a permanent loss of earning capacity of 40 per cent or more as set out in ss325(2)(e), (f) and (g) of the Act.
21The measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) gross income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury” earnings); and
(b) the gross income that the plaintiff was earning or was capable of earning during that part of the period three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred (“without injury” earnings).
22Any such comparison should accord with the observations of J Forrest J in Acir v Frosster Pty Ltd,[3] that s134AB of the Accident Compensation Act 1985, the analogue provision to s325, is:
“… a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of learning capacity sustained by the worker.”
[3] [2009] VSC 454 at paragraph [171]
23I am required to assess Mr Holland’s capacity for employment as at the date of the hearing of this application.
24I must also consider whether Mr Holland has any realistic capacity to return to full-time employment which might otherwise be suitable, having regard to his age, education and skills, work experience or other matters.[4]
[4]Richter v Driscoll (2016) 51 VR 91 at paragraphs [74]-[97]; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188
Background
25By way of background, Mr Holland was fifty-two at the date of his injury, having been born at Terendak, Malaysia, at a United Kingdom military camp, in 1967. He is married with two adult children and lives with his wife, Melanie, and one of his children.
26Mr Holland grew up in Windsor, England, where he struggled at school. He has poor reading and writing skills, and left school after completing Year 10, at sixteen years of age. He is not able to operate a computer, and relies on his wife to read and write for him.[5]
[5] Second further affidavit of plaintiff sworn 28 May 2024, at paragraph [6]
27He completed a bricklaying apprenticeship in the United Kingdom and then worked in the industry as a bricklayer. Between 1994 and 2000, he worked as a baggage handler at American Airlines.
28Mr Holland returned to bricklaying after he moved to Australia in 2009, where he worked for various companies, including TJ Bricklaying, before commencing with JOII.
29Over the course of his life, he has had muscular aches and pains from time to time, no doubt a consequence of heavy manual labour, but no history of injury to the cervical spine.
Injury, treatment and consequences
30On the date of the incident, Mr Holland attended his general practitioner at the Casey Superclinic.
31On referral, he underwent a CT scan of the cervical spine on 14 May 2019, which showed degenerative changes at multiple levels of the cervical spine.[6]
[6] Plaintiff’s Court Book (“PCB”) 80
32His general practitioner, Dr Atif Mazhar, referred him to Precision Brain, Spine & Pain Centre (“Precision”) for opinion and management of worsening back pain with left-sided radiculopathy.
33On 28 May 2019, he consulted neurosurgeon, Dr Hazem Akil, following review by Dr Gavin Weekes, pain specialist, at Precision.
34Mr Holland underwent bilateral C6-C8 medial branch blocks on 22 September 2020.[7] He had some improvement following these, and, accordingly, underwent further bilateral C3-C5 medial branch blocks performed by Dr Weekes on 4 November 2020.[8] Dr Weekes then performed a bilateral C3-C5 medial branch block radiofrequency on 4 December 2020.[9]
[7] PCB 82
[8] PCB 83
[9]Affidavit of the plaintiff affirmed 23 March 2024 at paragraph [34]; Report of Dr Sean Low dated 28 March 2024, PCB 64 and 66
35Despite some improvement in pain, his general practitioner certified Mr Holland unfit for any type of work as at 24 March 2021.[10]
[10] PCB 31
36Mr Holland saw Dr Richard Sullivan, pain specialist, on 15 April 2021, who arranged a bilateral C3-C5 medial branch radiofrequency denervation on 18 May 2021.[11]
[11] PCB 85
37Mr Holland saw physiotherapist, Mark Eibl, at various times during this period, and was prescribed significant prescription pain medication throughout.
38On 16 February 2022, Mr Holland was again referred to Dr Akil; and on 28 May 2022, he underwent surgery on the form of a C5-6 section anterior cervical discectomy/decompression with interbody fusion and anterior fixation performed by Dr Akil.[12]
[12] PCB 90
39A CT scan of the cervical spine on 30 September 2022 showed the expected position of the C5-6 anterior fusion prosthesis.[13]
[13] PCB 92
40His pain continued, and in June 2023, Mr Holland was referred by his general practitioner, Dr Mazhar, to pain physician Dr Robert Gassin.
41Upon review by Dr Gassin on 10 August 2023, Mr Holland was referred for C3-4 and C4-5 facet joint radiofrequency neurotomy procedures which were performed on 12 September 2023.[14]
[14] PCB 93
42On 10 October 2023, he underwent further C3-4 and C4-5 facet joint radiofrequency neurotomy procedures.[15]
[15] PCB 94
43Upon review on 17 January 2024, Dr Sullivan recommended neuromodulation for his pain. Mr Holland decided against this treatment.
44I find Mr Holland suffered:
(a) a cervical disc injury by way of aggravation of cervical spondylosis, resulting in right-sided cervical radiculopathy, progressing to a C5-6 anterior cervical discectomy and decompression; and
(b) persistent pain following the cervical spine surgery, with cervicogenic headaches.
45This is an organically-based condition relevant to the work injury to his cervical spine.
46In his report dated 24 May 2024, Dr Gassin explained:[16]
“I formed the opinion that Mr Holland’s ongoing pain was due to a combination of mechanical pain arising from the cervical discs and facet joints as well as muscular pain due to involuntary cervical muscle guarding and also neuropathic pain from dysfunction of the nerves in the region of surgery.”
[16] PCB 123-124
47Mr Holland has daily constant pain, and remains subject to increased pain with minimal activity, requiring him to rest lying down for one to one-and-a-half hours most days.
48Before his injury, Mr Holland enjoyed working full time as a bricklayer, skiing, motorbike riding and playing golf.
Return to work
49Mr Holland’s evidence included:
“I have made numerous attempts to return to work since sustaining my neck injury because I loved working and have felt guilty about not working.”[17]
[17] Second further affidavit of the plaintiff sworn 28 May 2024, at paragraph [5]
50His attempts to return to work over time demonstrate he is a motivated and hard-working man.
51Initially, five months after the incident in September 2019, Mr Holland returned to work on a part-time basis with the employer, performing light duties with restricted hours three days a week until he was made redundant in around January 2020.
52After being made redundant, he sought work through a friend with a company called Masters of Masonry, as a bricklayer. It was a trial for a foreman’s job, supervising bricklayers, with a component of manual work, setting out machinery to do the job. Due to his neck pain and related symptoms, he was unable to cope and only lasted one day.
53During the course of 2020, with the encouragement of a WorkSafe Victoria rehabilitation consultant, IPAR, and occupational specialist Dr Kilner Brasier, Mr Holland obtained his heavy rigid truck licence, a forklift operator licence and also completed a traffic management course. Each involved successfully completing a two-day course, and was achieved for the specific purpose of obtaining alternative employment.
54IPAR was not able to obtain any work for Mr Holland as a traffic controller. The frequent prolonged standing would make this role unsuitable in any event as it does not comply with Mr Holand’s medical restrictions, to which I shall return shortly.
55The VWA’s specialist occupational physician, Dr Dominic Yong, considered the role of forklift operator to be unsuitable.[18]
[18]Report of Dr Dominic Yong dated 11 July 2023, Defendant’s Court Book (“DCB”) 64 and 76; and report dated 15 February 2024, DCB 88 and 100
56In about July 2020, with his heavy rigid driving licence, Mr Holland obtained part-time work at Casey Sand & Soil for 15 hours a week as a truck driver delivering gardening supplies. In addition to the driving component, there was some lifting of bags of cement and sand, which he found difficult, despite taking strong prescription medication at the time. Mr Holland resigned due to his neck pain after about six weeks, in August 2020.
57He then underwent treatment for his pain, as set out above, performed by Dr Weekes in September, November and December 2020.
58Later in December 2020, Mr Holland attempted a return to work as a driver with catering company, Astoria. His duties involved delivering light catering supplies and cartons of coffee cups, plates and aluminium trays in a Mercedes van. Some larger boxes were pushed on a trolley through shopping centres for delivery to vendors.
59The pain in his neck forced him to cease this work.[19] As Mr Holland explained in his oral evidence:
“I was positioned with a driver for two or three days, and he would show me … where the routes would be, and what to do – how to do the job. And then I did a day on my own, and I just – you know, the lifting, the driving – I just couldn’t do it because of the pain.”[20]
[19] Second further affidavit of the plaintiff sworn 28 May 2024 at paragraph [3]
[20] Transcript (“T”) 14, Line (“L”) 27
60In 2021, Mr Holland was offered a job with a builder undertaking basic office duties, including clerical tasks. He did not take the job because his reading and writing is terrible, and computer skills non-existent.[21] He has never worked in an office or in a job where he has needed to operate a computer, and does not use the computer at home.
[21] T17, L6
61Despite his injury, in early 2022, he approached PJ Bricklaying, a business he knew through his friend, Bryce Gray, for light bricklaying work. The role did not involve set-up of machinery or other heavier tasks.
62Mr Holland worked as a subcontractor for PJ Bricklaying a few hours a week until his neck surgery in May 2022. During this period, he also worked for Mr Gray laying bricks from time to time, depending on who had work. The payment records show he worked part time around 15 to 25 hours per week from February to May 2022.[22]
[22] DCB 119
63I accept Mr Holland’s evidence that since the decompression and fusion surgery, although his range of motion has improved, overall his condition has deteriorated.
64Seven months after his neck surgery, in about December 2022, Mr Holland again attempted to return to work as a bricklayer for Mr Gray. He worked a total of four days before and after Christmas, but could not continue with this work because of his neck pain and symptoms, and ceased.
65He kept going back to bricklaying work despite having had a neck fusion, “because I needed the money, I needed to work”.[23]
[23] T35, L8
66Mr Holland was cross-examined about the lack of disclosure in his first affidavit of part-time work as a bricklayer in 2022. To my mind, this is of no great moment. No doctor suggests he can return to work as a bricklayer, so it is of marginal relevance in this sense. Even if work he performed in early 2022 was consistent with some retained capacity, the abortive attempt in December 2022 after neck surgery is the true reflection of his capacity.
Loss of earnings
67Mr Holland has not worked in his pre-injury employment, or at all, since late 2022 when he ceased part-time bricklaying work as a subcontractor to Mr Gray.
68While the VWA accepts Mr Holland cannot return to his pre-injury employment, its counsel, Ms Manning, submitted that:
(a) he has capacity to work in suitable employment;
(b) he has capacity to work at least four hours a day, three days a week;
(c) his residual capacity, exercised in suitable employment options, means he cannot establish a greater than 40 per cent loss of earning capacity; and
(d) based on the report of occupational physician, Dr Dominic Yong, dated 15 February 2024, his capacity might increase over six to nine months to full-time employment.
69Mr Holland’s case is the medical evidence supports a finding that he is subject to significant employment restrictions; and as a consequence of those restrictions, there is no suitable employment available to him at all.
70In the alternative, Mr Mighell of King’s Counsel submitted that if Mr Holland has a retained capacity for suitable employment, he has nevertheless suffered a greater than 40 per cent loss of earning capacity.
Employment restrictions
71In her vocational assessment dated 30 January 2024, Recovre vocational consultant, Ms Robyn Willett, identified Mr Holland’s poor literacy, writing and computer skills, and that his wife completes all administrative tasks in the family, including all bill payments and banking. Further, Mr Holland does not have the confidence to attempt computer training.
72It is not in dispute that Mr Holland struggled at school with literacy skills.
73Mr Holland is now aged fifty-seven years. All of his employment history comprises roles involving manual handling and labouring skills, which also limits his opportunities for employment very significantly.
74In addition to these barriers for employment, Mr Holland’s injury has left him with significant physical restrictions:
75Occupational physician Dr Dominic Yong, recommended a reduction in working hours, and that Mr Holland avoid:
(a) repetitive neck movements;
(b) repeated awkward neck postures;
(c) repeated firm pushing and pulling tasks; and
(d) lifting more than five kilograms on a repeated basis.[24]
[24] Report dated 15 February 2024: DCB 95
76By way of example, against these restrictions, Dr Yong considered many roles involving very light manual work handling unsuitable, including as a product assembler.
77Neurosurgeon, Professor Richard Bittar, in his report of 18 April 2024, listed the following restrictions:
“… he is likely to be precluded in relation to employment or activities involving:
a) Repetitive pushing, pulling and lifting.
b) Overhead activities.
c) Gripping, holding and carrying of more than light objects.
d) Use of heavy tools or vibrating tools.
e) Prolonged sitting with his neck in a fixed position.
f) Craning of the neck.
In my opinion, this incapacity will continue for the foreseeable future.”[25]
[25] PCB 78
78Dr Gassin’s report of 24 May 2024 included his opinion that:
“… Mr Holland, as a consequence of his neck injury on its own, is likely to be significantly restricted in his ability to push, pull and lift repetitively push, pull and lift, reach, bend and twist, and any activity above shoulder height, for the foreseeable future.”[26]
[26] PCB 125
79Dr Hazem Akil’s report dated 11 May 2024 includes the following restrictions:
“… his ability to push, pull or lift, or repetitively push, pull, or lift, as well as his capacity for prolonged sitting, standing or walking, is severely reduced and, in my opinion, those incapacities will continue for the foreseeable future.”[27]
[27] PCB 51
80Occupational physician Dr Sean Low, in his report to the plaintiff’s solicitors dated 28 March 2024, identified very similar permanent restrictions, adding:
“○ Avoidance of working with any power tools or vibratory equipment.
○Avoidance of prolonged postural positions including sitting, standing or working for periods greater than 60 minutes with ability to alternate postures as required.
○Avoidance of working in any prolonged positions requiring working in a stooped position or with his head held in cervical extension.”[28]
[28] PCB 70
81Based on the opinion of the majority of the doctors including neurosurgeon Professor Bittar, and occupational physician Dr Low, Mr Holland’s prognosis regarding his cervical spine is guarded. In Dr Low’s opinion:
“Mr Holland’s prognosis is considered poor. He has ongoing symptoms despite the significant passage of time and treatment to date. He is at risk for adjacent segment disease noting that he has previously undergone cervical spine fusion surgery.”[29]
[29] PCB 69
82I find these significant restrictions to his prolonged bending, sitting, standing, postural manual handling and lifting capacities are permanent.
Capacity for employment
83I accept Mr Mighell’s submission that Mr Holland suffers from daily neck pain which very significantly limits his activities.
84I accept Mr Holland’s evidence that his days are spent walking the dogs in the morning, performing light household chores, such as mopping and vacuuming, and sitting or lying and resting in between.[30]
[30] T35, L17
85Mr Holland’s oral evidence was also to the effect that he has no capacity for work due to his neck pain. In cross-examination, Mr Holland confirmed he could still drive for about two hours, walk three or four kilometres, pushing himself with pain before he would need to lie down and rest.
86While his evidence also included that he was able to sit or stand for a couple of hours without resting, I observed he was clearly in pain in court after less than an hour’s cross-examination.
87All of the treating doctors, and those who examined him for the purpose of this proceeding, accept he cannot return to his pre-injury employment.
88In terms of suitable employment, the medical opinions ranged from total incapacity for all forms of employment to a present capacity for four hours a day, three or four days per week, in a role without any requirement for manual handling.
89The VWA’s occupational physician, Dr Dominic Yong, also expressed the view that there remained a possibility of increasing those hours to full time in a sedentary-based office environment, which would require significant vocational retraining.
90The medical evidence is as follows:
(a) treating general practitioner, Dr Atif Mazhar’s report dated 20 October 2021:[31]
[31] PCB 33
“He is currently deemed unfit for any type of work, and it seems unlikely that Mark will be able to return to his role as a bricklayer/ … [manual] labour[er] but further treatment should assist with returning to suitable duties in [the] future.
He has been deemed unfit for any type of work until further review. He is currently under management of [a] pain specialist.
He remained off work and has no capacity to [do] any type of work and I consider his incapacity to last for the foreseeable future.”
(sic)
(b) Dr Mazhar referred Mr Holland to pain specialist, Dr Richard Sullivan, for treatment and management in 2021. In Dr Sullivan’s view:[32]
[32] Report of Dr Richard Sullivan dated 19 November 2021, PCB 45 and 47
“Mr Holland currently has no capacity for re-employment. He needs appropriate time to convalesce and rehabilitate following his treatment at which time his capacity in the future for sedentary part-time … [work could] be re-evaluated. As such his long-term capacity for employment is guarded.”
(c) Dr Sullivan referred Mr Holland to neurosurgeon Dr Akil, who performed decompression and fusion surgery in May 2022. In Dr Akil’s opinion:
“… his ability to return to his pre-injury duties with the persistence of pain is significantly limited, and he is unable to return either at full-time or part-time.”[33]
[33] Report of Dr Hazem Akil dated 11 May 2014, PCB 49 and 51
Dr Akil did not provide an opinion in relation to suitable employment because he did not have available full details of the plaintiff’s education, skills and prior work experience;
(d) Dr Low, in his report of 28 March 2024, recorded his opinion that:
“Mr Holland is unfit to return to his pre-injury role working as a bricklayer. … .”[34]
[34] PCB 71
(e) Dr Low considered roles that are sedentary-based in an office environment might be suitable. In his opinion:
“In terms of the identified roles, working as a Production Clerk and Facilities Administrator, it is noted that Mr Holland does not have transferrable skills and would require significant vocational re-training. Working in a purely sedentary-based office environment, I consider that Mr Holland would struggle to sustain full-time work. This is due to his ongoing pain symptoms that prevent him from sitting for prolonged periods of time and also affect his ability to concentrate. I consider that the best case scenario would be working only 12 hours a week over three non-consecutive days in sedentary-based work without any requirement for manual handling.”[35]
[35] PCB 72
(f) Professor Richard Bittar, in his report of 18 April 2024, stated:
“In my opinion, he is incapacitated for his full pre-injury duties as a bricklayer, as a consequence of his workrelated cervical spine condition.
Taking into account his age, education, training, skills and work experience, as well as the nature and severity of his work-related cervical spine condition, it is my opinion that he has minimal capacity for suitable employment. In my opinion, he could work a maximum of three to four hours per day, three to four day per week in a very sedentary role, if such a role could be found.
In my opinion, his incapacity for work is permanent.”[36]
[36] PCB 77
(g) current treating pain management specialist, Dr Gassin, in his report of 24 May 2024, states that Mr Holland has –
“… a very limited capacity for work on account of his age, education, skills, and work experience. I expect this limitation to persist for the foreseeable future.”[37]
[37] PCB 126
(h) Dr Yong’s report of 15 February 2024 included his opinion that:
“With respect to working hours, I do note the nature of the neck condition, the progress, and the period of time out of the workforce. Therefore, a graduated return to work program would be indicated. This would initially involve undertaking reduced weekly working hours such as 4-hour shifts for 3 days per week. The aim would be to increase the working hours back to full time working hours, and this would be on a progressive basis, such as over a 6-9 month period.”[38]
(i) on 22 May 2024, treating physiotherapist, Mark Eibl reported:
“… it is my opinion that Mark is unlikely to return to any meaningful work in the foreseeable future. He would be unable to do pushing/ pulling or lifting with any loading at all as this would aggravate his condition.
…
… Mark has no capacity to perform suitable employment for the foreseeable future. I would say that he has a permanent incapacity due to his injury and the subsequent condition that has manifested. He is barely able to perform activities of daily living at home without aggravation, so any meaningful work would seem unrealistic.”[39]
[38] DCB 103
[39] PCB 121
Specific suitable employment options
91The VWA relied upon a vocational assessment report dated 30 January 2024 prepared by Recovre. Although Recovre identified a number of suitable roles, many involved a requirement for retraining or duties likely to exceed Mr Holland’s restrictions.
92At trial, two specific roles of pathology courier and courtesy driver were relied upon by the VWA as potentially suitable for Mr Holland.
93The duties of these roles were put to Mr Holland fairly in cross-examination and clarified in re-examination. While Mr Holland agreed he could probably perform some of the tasks, but not all of them, for a limited time, I accept his evidence he would not be able to cope with any of the duties on a full-time basis, and that due to his pain and need to rest, realistically he was unlikely to be able to work on a part-time basis either.
94The role of pathology courier involves attending hospitals or medical and testing clinics, and then driving in metropolitan Melbourne or further away to particular centres where those samples would be tested.
95Sitting and driving forms the bulk of the activities in the role, with up to 38 stops per shift, with some light manual handling.
96The role of courtesy driver is based at a car dealership collecting cars for service and dropping them off.
97Dr Low was asked about the roles outlined in the Recovre report. In his opinion, Mr Holland would not be fit for any of the roles requiring significant driving, including the roles of courier driver and chauffeur, since neck symptoms result in frequent discomfort when driving, and he would be unable to tolerate long periods of driving.
98Only Dr Yong considered the pathology courier and courtesy driver roles suitable for Mr Holland.
Findings
99I accept the opinion of Dr Low that Mr Holland is precluded from employment in a driving role such as the roles of pathology courier or courtesy driver because they are likely to be beyond Mr Holland’s capacity when assessed against the restrictions, and are productive of unacceptable pain.
100Duties of a courier involving sitting for long periods, hopping in and out of a vehicle for eight hours a day and lifting some heavier items would preclude him from full-time or part-time employment in that role.
101The majority of duties as a courtesy driver involve driving a vehicle.
102Mr Holland’s evidence included that because of the pain in his neck and shoulders, his headaches and his need to rest for one to one-and-a-half hours due to his pain most days, he could not perform this role either.
103While Mr Holland conceded he would be able to drive for 20 or 30 minutes for discrete trips, I accept his evidence that overall, his neck condition meant he would not be able to complete six hours of driving duties on alternate days as suggested to him in cross-examination.
104While some of the jobs he has tried since his injury have involved driving to worksites, it was only ever for half-an-hour, and while he has driven for two hours in one stretch since he suffered his neck injury, he was in significant pain at the end of that time.
105Mr Holland’s evidence included that trying to keep his head still while driving is painful. He did not consider himself able to drive for extended periods as the stress of driving makes his neck pain worse. Moving his head around is also painful and he has to lay down and rest.[40]
[40] T31
106Driving duties involving four or more hours would exceed his own tolerance of two hours before neck pain requires him to cease driving, lie down and rest.
107In re-examination, his evidence was:[41]
“… I have to try and keep my head still, so looking in mirrors, reversing, and just driving, checking, pulling out of junctions is very difficult, holding my head, looking one way for a long period of time to try and get out of junction. So driving is very difficult.”
[41] T 34, L 22
108I accept Mr Mighell’s submission that the aim to return to full-time employment is not an attractive proposition, and in all probability, Mr Holland has no capacity for suitable employment.
109In addition to the medical evidence referred to above, I base this finding on the following matters:
(a) Mr Holland’s limited education, poor reading and writing skills, and inability to operate a computer;
(b) his difficulties learning at school;
(c) his wife performs all computer-based tasks for him;
(d) as such, his capacity is limited to very light roles consistent with his experience, and which accommodate his very significant physical restrictions;
(e) Mr Holland’s evidence that he does not have capacity to perform many of the duties at all or otherwise on a part-time, let alone full-time basis, in roles that have been identified to him by rehabilitation providers;
(f) Mr Holland’s subjective assessment of his own capacity is consistent with the preponderance of the medical opinion;
(g) the return to work efforts of Mr Holland in 2019 performing light bricklaying duties only rose to three days a week, up to five hours a day, which is hardly surprising: no doctor suggests he has capacity for his pre-injury employment or any employment with a significant component of manual handling; and
(h) critically, despite his best efforts and desire to work, his efforts to return to work in other roles over a period of four years have been unsuccessful. Mr Holland was unable to return to work in his pre-injury employment performing lighter bricklaying duties or in alternative employment as a driver.
110I accept Mr Mighell’s submission that the return to work efforts of Mr Holland is the best evidence before the Court in terms of his capacity for employment. He is an otherwise motivated, hardworking man, who has attempted to perform various jobs and failed.
111Mr Holland is reticent to complete computer training as he finds it very difficult to concentrate with his pain and headaches, and to remember things. His evidence was:
“I struggled at school and my reading and writing skills were bad. And I just find it difficult to do that sort of thing.”[42]
[42] T24, L 23
112Looking at a computer screen to concentrate for too long, even just holding his head up during the day, causes his pain to increase.[43] I accept that evidence.
[43] T25
113I find that Mr Holland has no realistic capacity for retraining in computer or administration skills, having regard to his age, background and experience, and the ongoing symptoms and restrictions from his neck injury. Mr Holland is simply not suited for the significant vocational retraining required for him to perform a sedentary role involving any office-based literacy skills or computers. His neck pain and medical restrictions would prevent him for any task involving sitting for long periods and use of a computer screen where he needs to keep his neck prone for prolonged periods.
114The extent of his current daily routine – involving walking the dog and light household tasks which result in the need for him to rest, often lying down for an hour or an hour-and-a-half – is a factor against Mr Holland ever being able to return to meaningful employment in a reliable and consistent fashion.
115That his medication regime produces drowsiness and concentration problems[44] is yet another factor against a retained capacity for employment.
[44] See report of Dr Richard Sullivan dated 17 January 2024, PCB 127
116Based on his pain, medical restrictions and the other criteria of suitable employment, I find Mr Holland has no retained capacity to work.
117Even if he has retained a notional physical capacity to work 12 hours a week or more in an office-based sedentary role, I find that he is not suitable for the significant retraining he would require to work in such a role. This was effectively conceded by the VWA in abandoning reliance upon any such position.
118It is a matter of judgement of the Court as to how many hours a plaintiff is fit to work in the context of an assessment required to apply a gateway provision.
119My assessment of Mr Holland’s capacity for suitable employment is based on a consideration of the evidence, noting that assessing whether any such capacity is permanent is a matter of judgement involving an element of prediction into the future.[45]
[45]Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545 and Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139
120Applying a real-world approach to my assessment, I find that Mr Holland has no retained capacity to work in suitable employment.
Conclusion
121On the evidence as a whole, I am satisfied that Mr Holland suffers from chronic persistent pain and loss of function in his cervical spine as a consequence of injury to his neck, despite fusion surgery in May 2022. His condition is permanent and has resulted in total incapacity for employment.
122I am satisfied as to the following matters:
(a) Mr Holland suffered injury to his low back in the course of employment on 15 April 2019;
(b) the loss of earning consequences, including the loss of his vocation as a bricklayer, are at least “very considerable”; and
(c) the permanent loss of earning capacity will be productive of financial loss of 40 per cent or more in accordance with s325(2)(e) and (f) of the Act.
123I grant leave to the plaintiff to commence proceedings for damages for pain and suffering and loss of earnings.
124I will hear the parties on the question of the form of final orders and costs.
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