Hubeek v Victorian WorkCover Authority
[2017] VCC 1750
•6 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00214
| MICHAEL ALLAN HUBEEK | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 September 2017 | |
DATE OF JUDGMENT: | 6 October 2017 | |
CASE MAY BE CITED AS: | Hubeek v Victorian WorkCover Authority | |
| MEDIUM NEUTRAL CITATION: [First revision 27 November 2017] | [2017] VCC 1750 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – credit – impairment to the pelvis – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Roleff v Chubb Insurance Co of Australia Pty Ltd (2011) 31 VR 235; Poholke v Goldacres Trading Pty Ltd & Victorian WorkCover Authority [2016] VSCA 232; Richter v Driscoll [2016] VSCA 142; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Meldrum QC with Mr L Allan | Arnold Thomas & Becker |
| For the Defendant | Mr B McKenzie | Russell Kennedy |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Swire Cold Storage Pty Ltd (“the employer”) on 13 April 2011 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.
4 The body function relied upon in this application is the pelvis.
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
7 By s134AB(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 In this application where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
10 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
11 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
12 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
14 Counsel for the defendant indicated the primary focus was on the loss of earning capacity application but the issue of pain and suffering was still live.[3]
[3]Transcript (“T”) 1
15 The plaintiff relied upon four affidavits and was cross-examined. His wife, Maria Hubeek, also swore an affidavit on 15 July 2017. In addition, Craig Matthews, an employee of the employer, swore an affidavit on 7 September 2017. He was required for cross-examination. Both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
16 The plaintiff is aged fifty-six, being born in October 1960. He is currently in receipt of weekly payments at the current work capacity rate.[4]
[4]T112
17 The plaintiff was educated to about Year 9, and thereafter has worked without formal qualifications, generally as a labourer doing factory or store work.
18 The plaintiff started working as a leading hand for the employer in about 2002. His job involved doing a variety of tasks, including picking, packing, loading trucks and repairs,
19 On the said date, at the employer’s premises, when the plaintiff was walking towards a crane which he had to repair, he was struck by a forklift, suffering a badly crushed pelvis (“the incident”).
20 After the incident, the plaintiff was assisted by co-workers and an ambulance was called. He was inpatient at The Alfred Hospital for about five days, then discharged to Epworth Hospital, where he stayed for about a fortnight.
21 The plaintiff did not undergo operative treatment. On discharge, he was not able to weight bear on his left leg for about two months or so.
22 Since being discharged, the plaintiff has been under the care of his general practitioner, Dr Everitt, at Casey Medical Centre where he has attended since about 2004.
23 The plaintiff ceased physiotherapy in about December 2011, as it was not giving him any benefit. Since that time, he has had no active treatment, nor has any been suggested. He has continued to see Dr Everitt, who is aware of his significant ongoing problems.
24 As of August 2016, when he swore his first affidavit, the plaintiff was reluctant to take pain relief because he thought it would affect him at work, and he was worried if he masked the pain, he might do something which was unwise. He therefore generally put up with ongoing pain, although he took Panadol when it was really severe – about eight tablets a week.
Post-incident work
25 About four or five weeks after the incident, the plaintiff started doing some transport log work from home by computer. A couple of months later, he started to attend the employer’s premises, at first on very restricted hours and duties. His hours gradually built up and his duties slowly increased until he was working full time, but his overtime fluctuated.
26 The plaintiff was doing many of his pre-injury duties, but not all of them. He was no longer doing any picking and packing, and many other tasks had restrictions and difficulties associated with them. For example getting in and out of the forklift was difficult, as he could not climb up and down as he used to.
27 Before the incident, the plaintiff was employed full time as a store person by the employer and was leading hand on the afternoon shift – a very practical and physical role. While he was supervising employees, the plaintiff did not undertake any of the administrative tasks and was not involved in hiring or approving annual leave. It was his role to ensure fellow workers arrived on time and undertook the jobs on the factory floor properly.
28 As leading hand on the afternoon shift, the majority of the plaintiff’s tasks were physical. He spent a considerable amount of time operating a crane and also a forklift. He was also responsible for loading and unloading containers and trucks and performing basic maintenance.
29 After the incident, the plaintiff returned to work on what he would describe as light duties. These were not the type of duties he had ever seen anyone else undertake during his entire working life. They were considerably different from those he was able to undertake pre-incident.
30 The plaintiff was provided with a computer and undertook basic data entry in a program called AS/400. It was a basic menu-driven program that he had not seen anywhere outside his employment.
31 The plaintiff understands the employer had another computer program that was used for the inventory of the warehouse. He attempted to operate this program for about a month without success, and was told that he caused havoc when he tried to use it. As a result, following the incident, any work the plaintiff undertook on the computer was extremely limited.
32 In May 2015, the employer was in the process of relocating to a warehouse in Laverton. The plaintiff worked in that warehouse as instructed for about three months. At the end of that period, because he was restricted to light duties, the plaintiff was told there were no prospects of being employed at Laverton and his employment at the new warehouse ceased. He understood that his employment prospects would be restricted in any other type of logistics role within the warehouse industry due to his injuries.
33 When required to work in Laverton, the plaintiff had to drive for long periods from his home in Narre Warren. Sitting in the car significantly increased his spinal pain, and he would arrive at work in considerable pain. When driving home each day, he had to stop at the Clayton warehouse, and although doing so allowed him to take a break from the drive, he was still in significant pain once he got home.
34 Whilst undertaking light duties with the employer, the plaintiff was able to delegate many of his duties. As he had a very long history of working with the employer, his workmates understood his restrictions and his manager tolerated them. The plaintiff was able to self-pace and only undertake duties which did not cause pain. He did not believe he would have the luxury of self-pacing in any other type of employment.
35 The plaintiff swore a fourth affidavit on 6 September 2017 in response to the affidavit of Chris Harrison which was originally relied on by the defendant. In that affidavit, the plaintiff addressed a number of matters raised by Mr Harrison as to the nature of his post-incident duties.
36 There was only one suitable duties plan dated 13 July 2015 which was brought into existence for the plaintiff’s work, whereas he was informed there would be a monthly duties plan. That plan represents the sort of work he was doing until he was made redundant. He had no idea whether Dr Everitt was aware of this plan.[5]
[5]T41
37 The plan set out physical and other requirements of the job at that time were administration, office work, inventory checks, forklift work, staging orders, labelling, running stock in and out, and picking cartons weighing less than 5 kilograms.
38 The plaintiff responded to a number of matters deposed to on the employer’s behalf by Mr Harrison. The plaintiff explained that post incident, when working at home, he had to break up the periods worked to no more than 20 minutes to half-an-hour at a time, and he could only work for a total of three hours a day.
39 The plaintiff returned to work on about 17 June 2011, and most days remained at work for about five hours. However, he does not believe he ever worked on any day for more than a total of about three hours, and never for more than approximately half-an-hour at a time. He never worked on computers for six hours a day.
40 Whilst the certificates of capacity did not make reference to the plaintiff’s problems with prolonged sitting and standing, he had discussed this issue with Dr Everitt.[6]
[6]T34; T39
41 Although the plaintiff’s time at work increased to his pre-incident hours, he was not able to engage in work on any one day for a total of more than about six hours, and in an unbroken period for any more than 20 to 30 minutes.
42 By the time the plaintiff finished working for the employer, the periods he spent in any one day loading and unloading trucks using a forklift never exceeded a total of six hours, and not for more than 20 to 30 minutes at one time on a forklift. He required a break of 10 to 15 minutes or so before he could resume using the forklift.
43 The plaintiff would not be comfortable on a forklift for any longer than about 20 to 30 minutes at a time, and was very rarely occupied transferring stock between two buildings for longer than an hour-and-a-half. Rarely, it might occupy him for up to two hours a day.
44 The plaintiff’s use of the forklift was self managed and he did not necessarily complain to Mr Matthews about it or any other duties that he was doing at that time. He did not need a medical certificate.[7]
[7]T59
45 Cycle counting was conducted only on Thursday nights. The plaintiff would walk with a clipboard, counting and recording products, for no more than about 20 minutes on the day.
46 The plaintiff had only a minuscule involvement with COR declaration forms, which involved typing details into a computer. He only did transport bookings in 2011 and 2012. That involved inputting data into a computer, and did not take more than about two hours on any one day. Other computer work occupied no more than 30 minutes a week.
47 Training staff was a very minor part of what the plaintiff did. He tried to be good at training people.[8] Principally this training was limited to familiarising new staff with the geography and procedures of the workplace, and would occupy no more than half-an-hour per new employee.
[8]T57
48 It was extremely rare for the plaintiff to be involved in picking an order because his work never involved him lifting over 5 kilograms.[9]
[9]T46
49 In cross-examination, when it was suggested it was not a “made up” job, the plaintiff said he had nobody telling him what not to do.[10]
[10]T47
50 Whilst Mr Matthews described the plaintiff as proficient in operating a computer to carry out stock investigations, the plaintiff said “say so”. He denied he could get to the heart of the problems and sort it out – he could just highlight it.[11]
[11]T57
51 Mr Matthews knew about the plaintiff’s restriction, as did Donny Francis, the supervisor. Mr Francis was the one who rang the ambulance and knew everything from the time the plaintiff went through rehabilitation. He knew the plaintiff was on work certificates.[12]
[12]T58
52 Mr Matthews would ask the plaintiff how he was and the plaintiff would always say, “I'm awake”.[13] Their catch ups were few and far between.[14]
[13]T58
[14]T59
Further studies
53 While the plaintiff was undertaking suitable duties with the employer, he undertook further qualifications in an attempt to rehabilitate himself and try to make himself as employable as possible.
54 In 2015, the plaintiff completed a mandatory Certificate in Work Safely at Heights. This was more of an induction. He is not able to climb up and down any type of ladder or steps because of his current pelvic pain and restrictions. This was a one-day classroom based learning, and he did not believe anyone had difficulty passing the test.
55 The plaintiff also completed a Certificate IV in Transport and Distribution (Warehousing and Storage). He was able to complete this qualification because it involved one-on-one training with an assessor. The training took one hour per week and was undertaken over a year. There was no requirement to do any study at home. There was no computer-based assessment, and the plaintiff undertook a multiple-choice question and answer test which he was basically spoon-fed. He does not believe he would be able to undertake this type of retraining in any other employment or formal environment.
Redundancy
56 The plaintiff employment was terminated by letter dated 25 May 2016. He then received a termination payment of $106,000. He denied he had no imperative to look for work after he received this payment.[15]
[15]T36
57 The plaintiff agreed that he had not taken a lot of sick leave, with $14,500 of his termination payment being a refund of sick leave.[16]
[16]T43
58 The plaintiff agreed he was doing regular overtime the whole way through to being made redundant. His overtime was at the end of the shift. He worked anywhere up to four to five hours’ overtime. He agreed his timesheets showed in the last week before he ceased work that he worked seven hours’ overtime.[17]
[17]T35
59 The plaintiff agreed that his wages increased post incident, explaining this was probably due to the EBA.[18] It was possible he was being paid for a valuable job and his income was going up accordingly. He agreed he was not thrown on the scrap heap after a year from his injury. He was kept on for five years until the premises closed. He denied that was because he was a valued employee and that he was performing valuable work for the employer.[19]
[18]T48
[19]T50
60 The plaintiff agreed, as he told Dr David Barton in May this year, if he had not been redundant, he would still be in his old job doing the supervisory work.[20] It was possible, as Dr Barton noted, that he reluctantly acknowledged a capacity to do similar work in the logistics and warehousing area with a 5-kilogram weight limit as he had been certified since about 2011.[21]
[20]T32
[21]T32
Post-redundancy employment
61 The plaintiff sought employment after the redundancy, and for a brief time in June 2016, was employed by Australian National Couriers (“ANC”) as a courier.[22] He got this job through a friend, but it quickly became apparent he could not do the inherent requirements of the job as he was not able to lift and deliver packages of up to 20 kilograms, a weight much greater than he had been told was involved in the job.
[22]T36
62 The plaintiff was required to do between ten and fifteen deliveries a day on average. He worked about nine days in total, during which he was in very bad pain, in particular, as he was often required to get in and out of a car. The plaintiff was not able to keep up with the workload, and the type of work caused a significant increase in hip pain.
63 As of August last year, whilst the plaintiff had looked for other work, he had not been able to find any he could perform due to his physical restrictions and limitations, and he did not think he would ever be able to return to any work.
Pain and restrictions
64 As of August 2016, the plaintiff had pain in his pelvis, lower back and left hip. It was there virtually all the time, but it varied in severity. It was increased by lengthy sitting, standing or walking, and wet weather was bad. He had trouble with stairs and sloping ground, and felt he had some instability. He could no longer climb ladders, which affected his ability to do home maintenance tasks such as cleaning the gutters.
65 The plaintiff had difficulty getting comfortable in bed and that affected his sleep greatly. He doubted if he ever slept for more than an hour-and-a-half. If he rolled onto either side, he was woken by pain. Because of these problems, he bought a latex mattress so that when he tossed and turned, it did not disturb his wife. Despite the mattress, he was unable to sleep due to his ongoing hip and lower back pain. His marital relations had been affected by his pelvic injury.
66 The plaintiff was limited in lifting heavy items, and also bending to pick things up, particularly on the left. He had been told he limped. He had become a very slow walker.
67 At that stage, the plaintiff tried to do as much as he could, but generally, did things much more slowly than he used to and had to take account of his limitations. For example he no longer drove his car into the garage at home because there was no room to open the car door fully and he could not squeeze out of the car as he used to.
68 The plaintiff swore a further affidavit on 13 July 2017.
69 The plaintiff continues to suffer from considerable pain and restrictions as a result of his hip and lower back injury. He has not returned to any meaningful employment. He is currently unemployed and cannot work as a result of the restrictions resulting from his hip and lower back condition.
70 The plaintiff continues to rely on significant pain medication, taking about four Panadeine Forte a day, in particular for the pain in his pelvis and left hip. He continues to walk with a limp and he is considerably restricted. Although he has tried to rehabilitate himself as much as possible, including self funding a gym membership and also osteopathic treatment, the plaintiff’s pain and restrictions continue to have a debilitating effect on his life.
71 The plaintiff agreed, as Dr Weissman noted in August 2017, he was taking a total package of Panadeine Forte and Panadol Osteo, four tablets a day. However, he did not want to rely on medication.[23] He might have told Mr Kierce in May this year, he took two Panadeine Forte a day, three to four days in a row.[24]
[23]T17
[24]T18
72 The days the plaintiff does not take tablets for pain are few and far between. He goes without medication less than one day a week if he has had a good day.
73 The plaintiff currently sees the osteopath about once every three weeks. Physiotherapy stopped because the physiotherapist stopped it.[25]
[25]T19
74 The plaintiff confirmed he continues to walk with a limp and is considerably restricted. As he deposed in his first affidavit, he had been told he limped and he had become a very slow walker and that is now still the situation.[26]
[26]T19
75 The plaintiff agreed he told Dr Weissman that he could walk to the shop and back, a distance of 1.4 kilometres. It took him two to three hours to do so, because he took frequent extended breaks and he also sat on brick walls and fences. The plaintiff also thought it was possible he told Dr Weissman in May this year that he could walk for up to 700 metres, but that would usually take about three hours because he had to stop. When it was suggested this was an exaggeration, the plaintiff said it took him longer than three hours some days. He walked with a limp most of the day and most of the time. He still walks slowly.
Surveillance
76 There was a total of 15 days’ surveillance from December 2016, during which there was surveillance of 81.25 hours and a total video of two hours, 20 minutes.
77 On 21 April and 11 May this year, the plaintiff was shown walking for periods up to 40 minutes around a local shopping centre. Whilst clearly he was walking for longer periods than he told doctors he was capable of doing without taking a break, in my view, he was shown moving slowly and, at times, limping. The plaintiff denied he was walking around fairly normally.[27]
[27]T27
78 The plaintiff walked cautiously. He possibly told Dr Barton he had trouble standing and walking on heels and toes.[28] He could have told Dr Barton he could not put his weight on his left leg.[29]
[28]T27
[29]T28
79 It was put to the plaintiff that at one stage in the video he lifted his right leg to shake under his right shoe and he then put his weight on the left leg.[30] The plaintiff could not tell by looking at the video whether he had done this. He can take his weight on his left leg. He denied he “put on a show” for Dr Barton, walking slowly from his rooms. He denied he moved around fairly normally in the film and that there was no apparent limp apart from Dr Barton’s examination and when he walked up the driveway.[31]
[30]Film of 4 May 2017
[31]T28
Capacity for suggested jobs
80 It has been suggested to the plaintiff he could work as a purchasing supply logistics clerk. However, he did not think he would be successful in getting that type of work. The role would involve sitting for long periods, which would cause a significant amount of pelvic and left hip pain. He understood the role would include customer service and speaking on the phone. He had never done this type of work, and had actively avoided direct contact with the public because he did not feel comfortable dealing with people in a customer service environment.
81 The plaintiff finds working on a computer for long periods very difficult, as he has a glass eye and his vision is restricted. When he is required to work on a computer for a long time, his vision becomes blurred and he has headaches. Thus, he has never worked in an office, and he has always worked in physical type roles.
82 The plaintiff has never had any paid employment that involved working on a word processor using Microsoft Word or Excel – programs he is unable to operate. He has basic self-taught computer skills. He is unable to type with any speed or accuracy. While he can undertake basic typing using one finger, he does not believe his typing skills would be at the level required in any type of professional environment.
83 The plaintiff could not remember saying he had basic to intermediate Word and Excel skills. Possibly he told IPAR he had advanced emailing skills and that he could browse the internet.[32]
[32]T38
84 The plaintiff has also been told he could work as a despatch and receiving clerk. This is administrative and office-type work, which he has never undertaken in his career. When he had to work on a computer for long periods with the employer, he had been able to stand up and sit down and move around when required. He would often have to get up and walk away from the computer because of increased spinal pain. He did not believe he was overly competent at this job, and he certainly did not enter the data as quickly as his co-workers.
85 Provided the plaintiff did not have to lift or carry or transfer lower cartons or items greater than 5 kilograms, the work suggested by IPAR as a despatch and receiving clerk could fit his individual restrictions.[33] He would be able to cope if he was not required to push or pull cartons or items greater than 10 kilograms.[34]
[33]T54
[34]T55
86 The plaintiff would be able to cope with despatch and receiving jobs if he could have access to regular postural changes.[35]
[35]T55
87 The plaintiff does not believe he has the skills to be able to sustain this type of employment. He is now fifty-six and has never worked in an office, nor does he believe he would able to retrain in any type of office-based employment.
88 The plaintiff did not think he could work as a scissor lift driver for long, as he would have to climb stairs. Work as a forklift driver is work he could do and he had worked as a warehouse shift supervisor until he was made redundant.
89 The plaintiff agreed that pushing and pulling items greater than 10 kilograms is not required to operate a forklift. He would not have problems doing head checks because he had no neck problem.[36] If squatting was rare, he would be able to cope with the aspect of forklift driving which required him to assess lower items of stock on pallets on shelving. Provided he did not have to sit for a long time or stand for a long time, he would be able to do forklift driving if he had access to regular postural changes as required, to assure avoidance of prolonged postures.[37]
[36]T53
[37]T54
90 The plaintiff could not remember talking to Dr Everitt about working as a forklift driver but agreed, as far as Dr Everitt was concerned, he can drive a forklift. He did not recall discussing the scissor lift job with Dr Everitt but could remember talking to IPAR about it.
91 The plaintiff could not recall discussing with Dr Everitt whether he could work as a machine operator. He agreed Dr Everitt is keen for him to get back to work and continues to provide him with certificates.
92 The plaintiff would now be able to cope with courier driving if there was little squatting involved and there was a 5-kilogram lifting limit and pushing and pulling limit of 10 kilograms. If he could get out of the car and stretch his legs, that would overcome any problem with prolonged sitting.[38]
[38]T56
93 The plaintiff could not recall telling IPAR he had basic typing skills. He possibly told them he knew a lot about warehouse and distribution type work and that he had always progressed in his role. He would be open to pursuing a range of employment options within these areas, as long as they aligned with his physical restrictions and allowed flexibility between sitting and standing.[39]
[39]T39
94 The plaintiff probably last applied for jobs two weeks ago. He could not remember the jobs involved or the wage details thereof. IPAR was aware of these details.[40]
[40]T60
95 When the plaintiff told Mr Kierce in May this year he had two job interviews that were unsuccessful, one was for Mountain Harvest for a job in Gembrook arranged by IPAR. The plaintiff attended the interview but when he told the employer of his restrictions, “it all went downhill”[41] and they lost interest when he advised he was on WorkCover.[42]
[41]T61
[42]T63
96 The other interview was with Farm Pride Eggs in Keysborough as a production supervisor. Again, when the plaintiff told them about his light duties, “that fizzled”.[43] If he had been offered that job, he would have tried to see how he went and possibly he might be working there today.[44]
[43]T63
[44]T64
97 The plaintiff swore a further affidavit on 1 September 2017 in which he detailed the effect his injury has on his daily activities.
98 The plaintiff has not had any contact with his children for about three years. They are presently aged twenty-seven and twenty-one. His son has an intellectual disability and decided to live with his mother when aged eighteen. The plaintiff lost contact with his daughter shortly after hosting her twenty-first birthday.
99 The plaintiff continues to grieve the loss of contact with his children. Because of this situation, he filled his life with other activities. Work became particularly important and was a central part of his life. He was passionate about training and helping casuals maintain their employment. It was rewarding to see them become competent staff members.
100 The most significant and meaningful loss the plaintiff continues to experience as a result of his injury is his ability to attend work. This loss has caused him to become significantly depressed.[45]
[45]T45
101 The plaintiff’s lifestyle has been significantly impacted by his left hip and spinal injuries. Prior to the incident, he and his wife had upgraded their caravan because they planned to travel when he took annual leave and on weekends. They had a particular passion for camping in remote areas, so he undertook a significant amount of modifications to the caravan, including putting in further wiring and solar panels. He also added plumbing so a washing machine could be operated from the caravan.
102 However, since his incident injuries, the plaintiff has not been able to return to caravanning. He cannot set up camp because of ongoing hip pain. He cannot sit for long periods to be able to drive to the locations they used to enjoy, and he has not been on a caravan trip since.
103 On the few occasions the plaintiff has gone on holidays, he is restricted to staying at resorts, a situation he would never have contemplated previously as he enjoyed camping in remote areas. He and his wife had made plans to go around Australia at some point, and those plans have now been lost.
104 The plaintiff confirmed he had gone on a number of overseas trips to various places in Asia in recent years.[46]
[46]T29
105 Prior to injuring his left hip and spine in the incident, the plaintiff was extremely house proud. He decorated his house with Christmas lights each year and took a particular pride and enjoyment in this task.
106 As a result of his hip injury, the plaintiff cannot climb ladders, or set up the lights. He now approaches Christmas with dread, rather than looking forward to decorating the house. He experiences significant distress and does not go outside at that time of year to avoid seeing other decorated houses.
107 Pre incident, the plaintiff undertook a lot of handyman tasks around the home. He was particularly passionate about his garden and had built a pond. He had also developed a system of using rainwater to water the garden. His hip injury prevented him undertaking this work. The garden has become overgrown and the plaintiff no longer actively takes care of the fish or cares for the garden.
108 Pre-incident, the plaintiff rode a bike in order to keep fit and he enjoyed being in the fresh air. He can no longer do so because of his hip pain. His bike is disused and covered in bird droppings. The loss of his ability to exercise by bike riding has been an ongoing and significant loss for the plaintiff.
109 The plaintiff is able to drive a car and go shopping on his own.[47]
[47]T28
110 Pre-incident, the plaintiff had a bird aviary and was passionate about caring for birds. Since the incident, he no longer has the birds because he is not able to look after them. His hip and lower back restrictions made it difficult to carry the feed containers and water bowls, and he was not able to clean the aviary. Caring for the birds was important to the plaintiff and his inability to do so has been a significant loss for him.
111 The plaintiff’s house has a home cinema and he and his wife watched two to three movies a week prior to the incident. Now, due to his ongoing pain, the plaintiff cannot concentrate or sit for long. His wife refuses to watch films with him because he has to constantly stand up and walk around. It has been a significant loss for the plaintiff that he has been unable to enjoy a movie since his hip injury.
112 As a result of his ongoing pain and restrictions, the plaintiff has become significantly depressed. He now sits around the house all day thinking about what he has lost. He experiences particular depression when his wife goes to work or when he is reminded of his previous life. By nature, he is a private person and struggles to talk about his symptoms of depression, and he has only recently told people how he is feeling.
113 The plaintiff’s symptoms of depression are frightening. He often thinks life is not worth living. He is also struggling with the ongoing hip pain, and at times has made positive plans to commit suicide. He has thought of killing himself on many occasions and made plans in this regard. In his darkest times, he is resigned to the fact that he wants to take his own life.
114 The plaintiff continues to find it difficult to discuss his symptoms of anxiety and depression. He has only recently told his wife about his plans and sought treatment for his symptoms. He has recently been referred to a psychiatrist by his lawyers. He has suffered in silence with these thoughts, which he did not have pre incident. This is a new experience and has been absolutely devastating and frightening for him. He has pulled away from his wife and friends at times as he believes he has come to the conclusion that his life will shortly end. This has been a significant concern.
115 The plaintiff continues to experience significant pain and restriction as a result of the incident injuries to his pelvis, left hip and lower back. His main pain is in his hips, more the left in the back, a little off centre.[48]
[48]T15
116 The plaintiff is unable to return to any type of meaningful work, and he has been unable to find work of any type following the termination of his employment with the employer.
Summary of Plaintiff’s gross earnings from personal exertion
Year ending 30 June Gross income from personal exertion 2009 $47,505 2010 $49,356 2011 $53,116 2012 $44,714 2013 $52,385 2014 $75,238 2015 $97,732 2016 $48,427 2017 $559
Lay evidence
117 The plaintiff’s wife, Maria Johanna Hubeek, swore an affidavit dated 13 July 2017. They have been married since 2008.
118 Mrs Hubeek has observed, as a result of the incident injury, the plaintiff continues to suffer significant pain and restrictions, particularly in his lower back and left pelvis. She has observed his life has considerably changed as a result of those injuries.
119 The plaintiff has gained a significant amount of weight since the incident because he is unable to be as active as before. He tries to walk and keep as active as possible, although he does comfort eat at home at times. As a result, his appearance has changed.
120 Mrs Hubeek confirmed that post incident, the plaintiff has had problems with household tasks, gardening, camping and caravanning and intimate relations. His personality has changed. He has difficulty sleeping. He now relies on Panadeine Forte to reduce the pain. Prior to the incident, he did not rely on pain medication.
121 Mrs Hubeek has observed the plaintiff attempting to rehabilitate himself and trying to return to some form of work. She has seen he is only capable of undertaking light duties since the incident, and this has caused him to suffer distress and humiliation at times. His inability to work and provide for them both is a constant source of distress for him. She has observed the plaintiff continues to suffer from significant pain and restrictions, particularly in his lower back and also his left pelvis as a result of the work incident.
Treaters
122 The plaintiff was admitted to The Alfred hospital on 13 April 2011. He then gave a history of a work accident in which he was crushed by a forklift against a railing, with an impact to his right hip.
123 An X‑ray and CT scan of the pelvis confirmed the plaintiff had sustained an undisplaced fracture of the left superior and inferior pubic rami and undisplaced fracture of the left sacral ala.
124 The plaintiff was reviewed by the Orthopaedic Unit, and conservative management of the fractured pelvis was recommended. He received analgesia and was to remain non-weight-bearing on the left leg for six weeks.
125 The plaintiff was monitored in the Orthopaedic Outpatient Clinic where he attended on 16 May 2011. X‑rays showed good position of the fractures, and he was to continue non-weight-bearing.
126 The plaintiff was next seen on 3 June 2011, when his pain was settling. X‑rays showed the fracture was healing and he was able to commence weightbearing as tolerated.
127 The plaintiff was last seen at The Alfred hospital on 15 July 2011. X‑rays showed that the fracture position was unchanged. He was permitted to mobilise without restriction, and he was discharged from the Clinic.
128 The plaintiff was an inpatient at Epworth Hospital between 18 April and 2 May 2011 for rehabilitation.
129 Dr Jeanette Hofland, consultant in rehabilitation medicine, looked after the plaintiff in Epworth Rehabilitation between 18 April and 2 May 2011. She reported that the plaintiff was very motivated and attended all sessions on a daily basis.
130 The plaintiff presented to his general practitioner, Dr Everitt, on 5 May 2011 regarding the work injury.
131 Noting the treatment undertaken, Dr Everitt reported from 28 October 2011, the plaintiff was able to return to modified duties, not lifting in excess of 5 kilograms. As of June 2012, he had been involved in a gym program, and the lifting restriction continued. Dr Everitt then thought the restrictions would continue long term, as the plaintiff’s symptoms had been fairly stable for some time.
132 Dr Everitt next reported in May 2015. He then noted the plaintiff was now stabilised, with chronic pelvic pain, especially with cold/raining weather. The plaintiff had stabilised, such that he was fit for modified duties. The lifting restriction of 5 kilograms was likely to remain indefinitely.
133 Dr Everitt noted the plaintiff had a self-managed gym exercise program and had not needed prescribed analgesics. As he had been stable for a long period, he had not needed any recent radiological imaging or specialist referral. He noted the plaintiff had no other significant or relevant unrelated conditions.
134 In October 2016, Dr Everitt requested osteopathic treatment for the plaintiff’s work-related back pain.
135 When Dr Everitt reported in November 2016, he confirmed the plaintiff’s condition remained stable, as outlined in his earlier reports, with chronic pelvic pain related to the work injury, and that the plaintiff remained on modified duties indefinitely.
136 Dr Everitt noted there had been no gap in treatments, as the plaintiff attended monthly. His treatment was directly related to the incident injury, and Dr Everitt would expect his treatment plan to continue as previously outlined.
137 IPAR wrote to Dr Everitt in January 2017 advising it had been engaged to assist with the plaintiff’s rehabilitation, specifically to identify suitable alternative employment options. Dr Everitt was asked to endorse a number of job options to assist IPAR in their task.
138 Dr Everitt completed the questionnaire[49] and identified the jobs of warehouse shift supervisor, forklift driver, scissor-lift driver and machine operator light as suitable for the plaintiff. He thought the jobs of purchasing supply logistics, despatch and receiving clerk, and courier driver light were unsuitable because they involved too much sitting. He noted the plaintiff’s main functional restrictions were “can’t sit long, can’t stand still, struggles to lift, struggles to sleep so always tired”.
[49]Pre-appointment Questionnaire 7 January 2017
139 In his most recent, very short report of 20 April 2017, Dr Everitt confirmed the plaintiff was fit for modified duties with a lifting restriction of 5 kilograms, and that was likely to remain indefinitely.
140 The plaintiff had soft tissue treatment at Fountain Gate Physiotherapy from July to December 2011. He initially presented with a restricted range of left hip movement. He was then working full time and had started a gym program. At that time, he described pain at 2 to 3 out of 10.
141 In the long term, Mr Rodgers, musculoskeletal physiotherapist from that clinic, expected the plaintiff would not be able to undertake activities involving running, although if needed, he could run a short distance. He suspected the plaintiff would have difficulty with prolonged standing, and at work would struggle with repetitive lifting if required to do so. He assumed the plaintiff had full capacity to do the job he was employed in when last seen.
The Plaintiff’s medico-legal evidence
142 Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in October 2015. At that stage, the plaintiff was continuing to work full-time light duties.
143 The plaintiff then advised he had ongoing lumbar spine pain and pain in the left side of his pelvis. He could walk, but had problems with sitting, and he had difficulty sleeping.
144 Mr Kossmann noted the plaintiff suffered a severe crush injury to his pelvis, and was subsequently diagnosed with multiple fractures. The plaintiff continued to suffer from ongoing pain issues, in particular his lumbar spine.
145 Mr Kossmann thought the plaintiff’s prognosis was guarded, and that he required further treatment with pain medication. He considered the plaintiff had a work capacity, noting he was working full-time light duties in his pre-injury employment. The plaintiff seemed to cope with that work; however, time would tell if he could return to full-time duties again.
146 Mr Paul Kierce, orthopaedic surgeon, examined the plaintiff in May 2017.
147 Mr Kierce noted the plaintiff continued to suffer with hip and back pain as a result of the crushing injury to his pelvis. He was continuing to suffer with pain in the left buttock, identifying the general area of the left sacroiliac joint, with pain on the outer aspect of both hips and some pain and pins and needles on the front aspect of his left thigh, with some radiation of pins and needles on the inner aspect of his left calf.
148 The plaintiff indicated pain in both hips, which mainly referred to the iliac crest. There was constant left hip pain, aggravated by walking for more than 20 minutes or 700 metres. His sleep was interrupted by left hip pain after about five hours. He had left-sided low back pain, which was aggravated by sitting and standing for 20 minutes. He avoided bending. He walked without a limp, but tended to take short steps as he shuffled along.
149 Mr Kierce noted there was a significant crush injury to the pelvis and thought it was also likely the plaintiff aggravated pre-existing lumbar spondylosis.
150 Mr Kierce considered the plaintiff was no longer fit for heavy work and was only fit for sedentary type work for the foreseeable future, noting he does have computer skills.
151 In Mr Kierce’s view, the plaintiff is likely to suffer bilateral hip pain for the foreseeable future, as well as chronic low back pain related to the incident. He is permanently unfit for any manual handling work and only fit for sedentary type work. There was no physical therapy indicated, or operative therapy. However, Mr Kierce thought it most important that the plaintiff lost weight.
152 Dr Joseph Slesenger, occupational physician, examined the plaintiff in May 2017.
153 The plaintiff advised he then had ongoing low back pain that was constant and moderate in severity, and aggravated by activities such as sitting or standing for prolonged periods. He had ongoing severe pain in the left hip, aggravated by activity, radiating to the left sacroiliac joint. He had moderate to severe ongoing pain in the right hip.
154 In addition to the pelvic fracture, Dr Slesenger diagnosed mechanical injury to the lumbar spine, aggravation of degenerative disease of the lumbar spine, and Chronic Pain Disorder, noting a psychological impairment which was outside his area of expertise.
155 Taking into consideration the plaintiff’s current lumbar spinal and bilateral hip impairment, Dr Slesenger thought the following restrictions were appropriate: no sitting or standing for more than 10 minutes; no push/pull, carry or lift over 5 kilograms; no bending; limited walking; sedentary duties only (and stand as required), and car park facilities and toilet facilities to be located close to the work station.
156 Taking into account the plaintiff’s past occupation, his current symptoms and functional limitations, his age of fifty-six, his current residence at Narre Warren, his focussed occupational experience, Dr Slesenger thought the plaintiff has a residual capacity for work with these restrictions: limiting his return to work to four hours a day, four days a week.
157 Dr Slesenger noted that the plaintiff’s employment prospects will be heavily influenced by the transferability of his skills and experience, and that in turn will be heavily influenced by his computer skills, about which Dr Slesenger had some reservations, noting they were self-taught and untested in a commercial environment.
158 Dr Slesenger thought the plaintiff could do the warehouse shift supervisor role within the restrictions outlined. However, given his experience of workers in similar roles, there may be aspects of these tasks outside the plaintiff’s capacity limits, and Dr Slesenger recommended a worksite assessment.
159 Dr Slesenger advised the plaintiff against returning to forklift driving as there was a risk that he would be exposed to vibratory forces and may be required to perform some manual handling tasks. He also advised the plaintiff against returning to work as a scissor lift driver, as the job tasks would requiring lifting up to 9 kilograms (medium lift requirements) and were likely to be outside the plaintiff’s capacity limits.
160 Dr Slesenger advised the plaintiff against returning to work as a machine operator, as the job tasks were likely to require repetitive bending and twisting, with either hopper feeding or decanting products or pallet stacking. Further, he noted the majority of workers in this role are required to set machinery and intervene in breakdowns. The job required prolonged sitting and standing, and working in restricted spaces.
161 Dr Slesenger thought the plaintiff could work as a purchasing supplier, logistics stock clerk and despatching receiving clerk. However, some tasks may be outside the plaintiff’s capacity limit, and he recommended a job specific worksite assessment.
162 Dr Slesenger advised the plaintiff against returning to work as a courier driver, as the job tasks require medium lifting capacity, also noting the plaintiff’s driving limitations.
163 Dr David Weissman, consultant psychiatrist, examined the plaintiff in August 2017.
164 In terms of history, the plaintiff told Dr Weissman that it took him two-and-a-half to three hours to walk to the shops and back, a round trip of 1.4 kilometres. It took him this long because he took frequent extended rests and he also sat on brick walls and fences.
165 When the plaintiff was asked about his current psychological and emotional symptoms and progress, he was not particularly responsive to the questions. He said he was not depressed per se. He said he did not understand questions about his self-esteem and confidence, and what he thought about the future.
166 Dr Weissman concluded there was no clear pre-existing or unrelated psychiatric condition or impairment. He thought, overall, the plaintiff was suffering from slight residual traumatisation features directly due to the incident. However, he did not have a full-blown chronic Post-Traumatic Stress Disorder (“PTSD”). He thought the plaintiff was suffering from a mild Chronic Adjustment Disorder with anxious predominantly frustrated mood, consequential to the loss of his employment in late May 2016, and the original pain injury’s limitations and restrictions dating back to the incident.
167 Dr Weissman did not think the plaintiff required psychiatric or psychological counselling or anti-depressant medication. He thought the issue of work capacity should be better addressed by an orthopaedic surgeon and occupational physician, noting that on purely psychiatric grounds, there was no actual psychiatric incapacity for work. However, he noted that when one considers the definition of suitable employment, including the plaintiff’s relative lack of transferable skills outside of manual duties, his presumed capacity for only sedentary duties now, and his advancing age of fifty-six, his time away from work (it is more than a year now), the plaintiff is going to experience difficulty finding so-called suitable paid employment on the open labour marketplace.
168 Overall, Dr Weissman thought the plaintiff was currently suffering from only a mild group of work-related psychiatric conditions and mental injury. His overall psychiatric prognosis was fair.
The Defendant’s medical evidence
169 Certificates provided by Dr Everitt set out the plaintiff is fit for modified duties with the only work restriction listed being no lifting more than 5 kilograms.
Medico-legal evidence
170 The plaintiff was examined by Mr Bruce Love, orthopaedic surgeon, in November 2016.
171 The plaintiff then complained of pain present daily, for which he took Panadeine Forte.
172 Mr Love thought the plaintiff appeared to have principally suffered a crush injury of the pelvis and the injuries appeared to include the sacroiliac joints and pubic rami, with a probable aggravation of degenerative spondylosis of the lumbar spine. It was unlikely there would be any significant change in the plaintiff’s condition in the foreseeable future.
173 Mr Love noted the plaintiff’s current physical condition is that he appears significantly over an ideal body mass index and has significant impediment of function due to pelvic pain and gait disturbance. He considered the plaintiff’s residual disability was of a moderate severity.
174 Mr Love had not judged the plaintiff to have a Pain Disorder or significant functional overlay. He thought his symptoms were organically based and was not able to ascribe the plaintiff’s symptoms to any psychological condition.
175 In Mr Love’s view, if the plaintiff had pre-injury duties available to him, he would be capable of performing the tasks he was doing at the time of his redundancy. If he was to gain employment, it would need to be such where he could choose his posture at work, where he was not required to engage in prolonged standing, walking or repeated bending and stooping, and not being expected to lift more than the lightest of loads.
176 Mr Love noted that there had been no rehabilitation since the early post-operative period, and it was now more than four years since the incident. It was improbable that rehabilitation would have a great role to play, with the exception that encouragement with weight loss would be in the plaintiff’s interest.
177 Mr Graeme Doig, orthopaedic surgeon, examined the plaintiff in March 2017.
178 The plaintiff then complained of ongoing stiffness with lower back and pelvic pain.
179 Mr Doig noted the plaintiff sustained multiple pelvic fractures through the left side as a result of the crush injury, and had now developed secondary arthritis at the sacroiliac joints and lumbosacral spine.
180 Mr Doig thought the plaintiff was not fit for pre-injury status, but had a current work capacity. He was fit for alternative duties with a 10-kilogram lifting, pushing and pulling restriction, with limited bending, twisting and squatting through the spine. He would need breaks from prolonged sitting, standing and driving.
181 In Mr Doig’s view, there did not appear to be anything other than the work injury affecting the plaintiff’s recovery. His treatment was appropriate and he was simply using analgesics on an as-required basis.
182 Dr David Barton, occupational physician, examined the plaintiff in May 2017.
183 The plaintiff advised that while he was continuing to work, his problem was fairly stable. Over the last year, he felt, because he had been less active, his symptoms had worsened. He described three specific sites of pain, with two being around the lateral aspect of the left and right elbow, and one close to the left sacroiliac joint. The left-sided pain was constant and made worse with sitting and standing for more than 20 minutes. The pain was less severe around the right hip. He had twinges, with symptoms shooting down the left leg at times.
184 The plaintiff acknowledged that were he not to have been made redundant, he would still be doing his current supervisory job. He reluctantly acknowledged a capacity to do similar work in the logistics and warehouse area. He felt the 5-kilogram limit would need to be maintained and advised he had had some contact with the rehabilitation provider.
185 Dr Barton noted the plaintiff described fairly persistent and troublesome symptoms. Dr Barton was not aware of any other factors playing a part in the plaintiff’s condition.
186 Dr Barton accepted there is both an organic basis to the pain and some functional component. He noted on examination, there were several findings that did not fit with a straightforward physical problem, and suggested a degree of overlay was playing a part – a discrepancy between limited straight leg raising and postures noted at other times, an increase in reported symptoms with axial loading, and marked tenderness made little medical sense considering the time to recover since the original injury.
187 Dr Barton believed the plaintiff had physically mostly recovered from the pelvic fracture. He would accept there may be some minor, ongoing symptoms related to the original injury. Accepting the nature of the original injury and the plaintiff’s subsequent symptoms, Dr Barton believed the plaintiff possibly has a partial incapacity for all of his pre-injury duties.
188 Dr Barton, however, believed the plaintiff has a capacity for work, and noted he was able to return to work for a considerable period of time after the injury until retrenched. He believed the plaintiff could complete the various jobs in the IPAR report. He accepted that getting in and out of the car may present with some occasional difficulties, but he did not believe this was a contraindication to the plaintiff doing that work. He considered the plaintiff could work full time.
Vocational evidence
189 Occupational rehabilitation specialist, Ms Burmeister, provided a job-seeking services report on behalf of IPA in January 2017.
190 It was noted the plaintiff reported he had a vast range of knowledge within warehouse and distribution-based environments, and he always progressed in his role. He reported he would be open to pursuing a range of employment options within these areas, as long as they aligned within his physical restrictions and allowed flexibility between sitting and standing.
191 The plaintiff advised he had self-taught computer skills with basic to intermediate Word and Excel skills, advanced emailing skills, internet browsing and basic typing skills.
192 Mrs Burnside identified the following as suitable employment options – warehouse supervisor, forklift driver, scissor-lift driver, and machine operator (light – food), purchasing, supply, logistics (stock clerk, despatch and receiving clerk) and courier driver light).
193 These jobs were again mentioned in a Job Task Analysis Report of April 2017.
194 It was noted the plaintiff agreed with all the employment options, though he was unsure as to the suitability of a courier driver role, and its suitability would be impacted by the specific work requirement.
195 In the forklift driver role, the average weekly full-time income was $981, despatch and receiving clerk $1,100, and courier driver light $1,017.
196 IPAR produced a résumé on the plaintiff’s behalf and applied for a job with Nulac on 8 March 2017.
197 On 31 May 2017, IPAR assisted in locating and applying for the following roles: vendor scheduler FMCG, Six Degrees Executive Pty Ltd; supply planner, Vertical Talent.
198 On 22 June 2017, two further roles were located and applied for, with two on 6 July, one on 12 July and three on 20 July 2017.
199 There was a further Job Seeking Review Report compiled by IPAR on July 2017 which mentioned the Mountain Harvest job application.
Termination of employment
200 By letter dated 25 May 2016, the plaintiff was advised by the employer that his position of leading hand was redundant.
201 The employer advised that it had considered and explored redeployment options in preference to the separation of the plaintiff’s employment, but a suitable alternative position had not been found. This meant his employment would separate on the grounds of redundancy effective from 25 May 2016.
202 An employee termination report set out that the plaintiff received a net termination payment of $106,937, with sick leave payments of $14,501.
203 Pay records indicated that the plaintiff worked regular overtime, with seven hours’ overtime in the week he last worked before taking the redundancy.
The Defendant’s lay evidence
204 Craig Matthews is currently employed by the employer as customer service manager and managed the worksite from February 2013 to March 2016.
205 When Mr Matthews commenced in the role of site manager, he was not aware of any restrictions on the plaintiff’s duties. After about twelve to eighteen months, he was told the plaintiff was working on restricted duties due to his prior workplace accident.
206 Mr Matthews understood the only restriction on the plaintiff’s duties was that he could not lift more than 5 kilograms in accordance with the certificate of capacity signed by his doctor.
207 Mr Matthews understood the plaintiff performed restricted duties until March 2016. He believed the plaintiff’s duties included:
(a) loading and unloading trucks using a forklift;
(b)delegating work to other staff members;
(c)cycle counting;
(d)computer work (transport bookings, COR declaration forms, allocating work via Swim (AS/400 system);
(e)assisting stock investigations via Swim;
(f)training of staff;
(g)transferring of stock between two buildings (forklift);
(h)case picking – monitored to ensure no lifting over 5 kilograms.
208 For the period Mr Matthews managed the Clayton site, he was not aware of any specific time restrictions enforced in relation to the plaintiff’s use of manual handling equipment. No issues were raised by the plaintiff to himself or site supervisors at that time.
209 Mr Matthews and the plaintiff would have had intermittent catch-ups on the plaintiff’s overall health and condition. The plaintiff was constantly reminded out of care to ensure he worked within the restricted duties outlined in his certificate, and to advise in the event there were any tasks he was not able to perform.
210 In response to the plaintiff’s affidavit, Mr Matthews could not confirm either way if the plaintiff had elected to manage his time in specific increments on manual handling equipment.
211 Cycle count duration would be varied and would have likely exceeded 30 minutes when operating under normal circumstances.
212 Computer work was typically required, based on activity and/or when support was required. During Mr Matthews’ time managing the site, the plaintiff was called on at times for covering, and he also voluntarily assisted afternoon administrative staff in the compiling of the next day’s despatch time slots.
213 Stock investigations would require a varied level of enquiry at times to complete. The plaintiff was considered to be very proficient in the process, often pinpointing root causes and suggesting corrective actions.
214 Mr Matthews confirmed the duties the plaintiff was performing were a real job. He was a team leader for the afternoon shift and his contribution was valued. The plaintiff was well regarded by him.[50]
[50]T83
215 Mr Matthews confirmed that there were pay rises, according to overtime worked and an EBA.[51] Many people were made redundant at the same time as the plaintiff.[52]
[51]T84
[52]T85
216 In cross-examination, Mr Matthews confirmed he was responsible for the management of the site and also directing the leading hands on what to do day‑to‑day. He agreed he would be concerned about the work ability of anyone suffering from any form of disability.[53]
[53]T85
217 Mr Matthews confirmed that 30 to 40 per cent of the role of a leading hand would be operating a forklift and they would need two feet to do it.[54]
[54]T92
218 Mr Matthews agreed the plaintiff had a fair bit of autonomy in terms of choosing what tasks he would do to fill up his day, and he was left to his own devices as long as he was putting in a full day’s work.[55]
[55]T97
219 Mr Matthews did not think slip sheeting was a predominant part of the plaintiff’s shift and was not aware this task was not being done by him. He could not say whether or not the plaintiff was doing pallet stacking “out the back”. He disagreed the plaintiff was doing a light duties leading hand role but agreed he was doing the role with a 5-kilogram lifting restriction.[56]
[56]T98
220 Typically speaking, a leading hand would not pick a lot, and that task was typically delegated to agency employees.[57] Five to ten per cent of the leading hands’ time would be spent picking and packing, and the plaintiff was ruled out of any heavy lifting over 5 kilograms.
[57]T99
221 The plaintiff’s direct supervisor was Steven O’Brien, who is no longer with the employer, and would have left some months after the site closed down.[58]
[58]T101
Overview
222 There is no dispute the plaintiff suffered a crush injury to his pelvis in the incident on the said date. X‑ray and CT scans of the pelvis confirmed he had sustained an undisplaced fracture of the left superior and inferior pubic rami and undisplaced fracture of the left sacral ala.
223 Further, as Mr Love and others have described, the plaintiff suffered an aggravation of degenerative spondylosis in the lumbar spine.
224 The consensus of medical opinion is that the plaintiff’s present condition has a substantial organic basis. There is little suggestion otherwise save for a brief comment by Dr Barton of some inconsistent findings on examination and some psychological issues noted by Dr Slesenger.
Credit
225 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[59]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[59](2010) 31 VR 1 at paragraph [12]
226 Counsel for the defendant submitted the plaintiff’s affidavit evidence about his depressive condition was bewildering,[60] and ultimately, he should be seen to be an unreliable witness[61] as he did not report severe psychiatric symptoms to Dr Weissman and they were not noted by his general practitioner.[62]
[60]T106
[61]T107
[62]T108
227 Further, it was submitted it was strange the plaintiff could not remember details of a job application two weeks ago.[63]
[63]T108
228 Particular reliance was placed on the history given by the plaintiff to Dr Weissman and Dr Slesenger of the time it took him to walk a relatively short distance, a situation it was submitted was inconsistent with the plaintiff’s level of activity shown on film.[64]
[64]T109
229 These and other minor examples were relied on by counsel for the defendant, who submitted that credit remained a factor in terms of assessing the consequences under both heads.[65]
[65]T111; evidence about LinkedIn - T53 and recreational use of computers
230 As I indicated during the hearing, whilst the plaintiff was shown on film walking around shopping centres for extended periods, he was not walking particularly freely and at times he was moving slowly and limping a lot. The plaintiff was subject to extraordinarily thorough investigation which, in my view, showed little inconsistent with the plaintiff’s evidence of his pain and resultant restrictions.[66]
[66]T130
231 I accept that the plaintiff is not a man who discusses his emotions easily and he is not particularly articulate. This explains his failure to mention his deteriorating psychological condition to his doctor. As counsel for the plaintiff submitted, the plaintiff is a man who answers questions he is asked and is not a fellow who talks about himself much.[67]
[67]T131
232 I found the plaintiff to be a truthful witness who gave a very credible account of his ongoing problems since the incident, his difficulties obtaining further employment and the significant interference with a range of recreational activities as a result of his injury.
233 There was no real challenge to the plaintiff’s evidence as to the interference with daily and recreational activities deposed to.[68] His wife confirmed these restrictions in her affidavit. She was not cross-examined.
[68]T129
Pain
234 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[69] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain, both in court and to doctors.
[69](Supra) at paragraph [11]
235 The plaintiff has deposed to, and consistently complained to doctors of considerable pain and restriction in his hips, particularly the left, and the low back. The pain is in the general area of the left sacroiliac joint, with pain on the outer aspect of both hips and some pain and pins and needles on the front aspect of his left thigh, with some radiation of pins and needles on the inner aspect of his left calf.
236 The plaintiff continues to have difficulty bending and is unable to lift anything other than very light weights. His sitting and standing tolerances are limited by his pain. At times, he limps. Sleep is interrupted by left hip and back pain.
237 The plaintiff requires ongoing significant painkilling medication, taking up to four Panadeine Forte per day.
238 As Dodds-Streeton JA said in Kelso v Tatiara Meat Co Pty Ltd,[70] in a case where chronic pain was a prominent feature:
“… The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[70](2007) 17 VR 592 at paragraph [199]
239 Further, in terms of treatment, the plaintiff self funds a gym program and continues to attend an osteopath for treatment. He also had physiotherapy at an earlier stage.
240 A range of activities enjoyed by the plaintiff pre incident such as camping and caravanning, gardening and his home cinema are either no longer available to him or are now of limited enjoyment as a result of his incident injuries.[71]
[71]T124
241 Whilst all doctors agree the plaintiff has a capacity for work,[72] the consensus of medical opinion is that as a result of his ongoing pain and physical restrictions, the plaintiff no longer has the capacity to do unrestricted heavy work. Since the injury, a 5-kilogram lifting limit has been imposed and he has had continuing difficulty with prolonged sitting and standing.
[72]T111
242 In my view, this work restriction resulting from the incident injury is a serious consequence, as are the other consequences referred to above when considered in their totality.
243 I accept that the plaintiff’s home life and work life pre and post accident was chalk and cheese[73] and that there was a dramatic change in both his work and home life as a result of his incident injury.[74]
[73]T126
[74]T127
Loss of earning capacity
244 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
245 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
246 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
247 “Without injury” earnings consist of 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 had the injury not occurred.
248 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
249 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.[75]
[75]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [70]
250 Counsel for the defendant submitted that the figure that most fairly reflected the plaintiff’s “without injury” earnings was his earnings from the 2012-2013 financial year of $62,614 gross or $1,204.11 gross per week. Sixty per cent thereof is $722.47.[76]
[76]T117, Roleff v Chubb Insurance Co of Australia Pty Ltd (2011) 31 VR 235 at paragraphs [23] and [24]
251 No alternative figure was suggested by counsel for the plaintiff.[77]
[77]T132
252 Counsel for the defendant submitted the plaintiff had failed to establish the requisite 40 per cent loss.
253 It was submitted the plaintiff had demonstrated a capacity for full-time work whilst in his post-incident job with the employer. Had he not been made redundant, the plaintiff would have continued in this role, which it was submitted was a real, valuable job, as Mr Matthews confirmed.[78]
[78]T114, Poholke v Goldacres Trading Pty Ltd & Victorian WorkCover Authority [2016] VSCA 232 at paragraph [143]
254 Post incident, the plaintiff worked full time with regular overtime, working 7 hours overtime in the week before his employment ceased. He did not take much in the way of sick leave and his wages substantially increased over the period of employment.[79]
[79]T115
255 It was submitted this was not a case where the plaintiff was being targeted as lots of workers were made redundant at the Clayton site, as Mr Matthews confirmed.[80]
[80]T115
256 The plaintiff is still applying for work and it was submitted he has a reasonably formidable skillset, with basic to intermediate computer skills and a knowledge of warehouse and distribution jobs and experience in training others.[81]
[81]T116
257 It was submitted there had been a proper basis provided for the suggested jobs of forklift driver, despatch and receiving clerk and light courier driver.[82]
[82]Richter v Driscoll (2016) VSCA 142; T122
258 The only restriction that had ever been placed on the plaintiff’s duties in the years after the incident was a 5-kilogram lifting limit.
259 It was submitted Dr Barton’s line of reasoning that the plaintiff had a capacity for the suggested jobs on full-time basis should be preferred to Dr Slesenger’s inexplicable limiting of hours to 16 per week.[83]
[83]T121
260 Further, Dr Everitt, the general practitioner, thought four of the seven jobs were appropriate on a full-time basis.[84]
[84]T119
261 On the basis of Dr Barton’s view, largely shared by Mr Doig and Mr Love, who thought the plaintiff was fit for full-time light work, it was submitted the plaintiff could not establish the requisite loss.
262 There was no evidence of a deterioration in the plaintiff’s condition following the termination of his employment to explain why he could not continue to perform duties of a similar, valuable nature to those undertaken whilst working for the employer post incident.[85]
[85]T121
263 Working full time in all of the three suggested roles, the plaintiff would earn in excess of $742 per week:
§ forklift driver - $981
§ despatch and receiving clerk - $1,100; and
§ courier driver light - $1,017.[86]
[86]T123
264 Counsel for the plaintiff submitted the plaintiff’s case was pretty simple. He was doing modified work post incident that would not make him employable on the open market, and he is now unsafe and unfit to do work, particularly forklift work.[87]
[87]T124
265 Further, the plaintiff is not work shy, as he tried for the job as a courier soon after he left the other job. He was unable to continue for more than nine days because of the heavy lifting that was involved and difficulties getting in and out of the car.[88]
[88]T125
266 I accept that the plaintiff was only able to stay at work because the work was so modified and he had devised his own system.[89] Whilst Mr Matthews described the plaintiff performing a number of roles, on close examination, these were of a limited nature and carried out over short bursts.
[89]T126
267 Obviously the lifting of restriction of 5 kilograms is a very significant one and impacted on all the plaintiff’s activities.[90] Further, he was only able to drive a forklift for 20 to 30 minutes and then required a 15-minute break. His use of the computer was limited both by his lack of computer skills and also his inability to sit for prolonged periods as he described, confirmed by Dr Everitt in January this year.
[90]T125
268 I accept the plaintiff’s evidence that he knew of no one who had performed that role before and that there is no evidence that there is a like role in similar terms on the open market.[91]
[91]T127
269 Whilst the plaintiff agreed he could do a number of the suggested jobs with appropriate restrictions as to lifting and prolonged postures, I accept that he would not be able to reliably and consistently attend the workplace on a regular basis to perform those, given the severity of his ongoing pain. Further, once at work, he would need to regularly move around and would be significantly limited in the tasks he could perform in any event due to the 5-kilogram lifting restriction. He would not have the luxury of being able to self pace his work, as was the case with his duties at the employer prior to the termination of his employment.
270 The plaintiff is now aged fifty-six. He has no clerical experience and his computer skills are not such that he would make him an attractive employment candidate. Despite undertaking retraining and cooperating fully with IPAR, he has not been successful in obtaining further suitable employment.
271 As counsel for the plaintiff submitted, the plaintiff is restricted in what he does at home, he is restricted in his sleep, and accepting he is a credible witness, it just does not make sense that he has a capacity to earn in excess of the relevant figure.[92]
[92]T133
272 Taking into account all the evidence, I am satisfied that the plaintiff does not have the capacity to earn in excess of $742 per week and has, accordingly, suffered the requisite loss.
273 I am also satisfied this impairment is permanent, the plaintiff having experienced ongoing pain and restriction for nearly seven years without any significant improvement.
274 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
275 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
276 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, ie both for pain and suffering and loss of earning capacity.[93]
[93]See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [147] and Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170
277 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity.
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