Hussaini v Victorian WorkCover Authority
[2017] VCC 1173
•25 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00301
| ZIA HUSSAINI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 August 2017 | |
DATE OF JUDGMENT: | 25 August 2017 | |
CASE MAY BE CITED AS: | Hussaini v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1173 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lumbar spine – mental or behavioural disturbance – Chronic Adjustment Disorder with Depressed Mood and Anxiety – disentangling – pain and suffering and pecuniary loss damages
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b); Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Jarvis v Woolworths Ltd [2012] VCC 1329; State of New South Wales v Moss (2000) 54 NSWLR 536
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Ms B Hutchins | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr C Miles | Wisewould Mahony Lawyers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by him arising out of or in the course of his employment with Daniels Health Pty Ltd, known as Sterihealth (“the employer”). In particular, on or about 22 May 2014, when he was forcefully trying to pull a tray to unblock a machine and in the process, he felt a sharp pain in his back.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clauses (a) and (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of a body function; or
…
(c)permanent severe mental or permanent severe behavioural disturbance.”
5 The body function relied upon in this application is injury to the spine, in particular the lumbar spine, by way of aggravation of the degenerative changes in the lumbar spine. The mental or behavioural disturbance relied upon is a Chronic Adjustment Disorder with Depressed Mood and Anxiety.
6 The plaintiff relied upon three affidavits sworn on 22 August 2016, 29 May 2017 and 1 August 2017. I have not summarised the plaintiff’s affidavits or evidence; however, I will refer to the relevant evidence in my reasoning.
7 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all of the tendered material.
The issues
8 Counsel for the defendant submitted that there were a number of issues before the Court, which were:
(a) whether the plaintiff satisfies the statutory test for “serious injury” in respect to the lumbar spine, given that the plaintiff had a history of back pain prior to May 2014;
(b) the stability of the plaintiff’s condition, that is, whether the plaintiff would have surgery on his back in the future;
(c) an issue of disentangling based upon Dr MacBeth’s report. Dr MacBeth diagnosed persistent lower back pain and associated functional limitations, and said the plaintiff has developed a secondary Chronic Pain Disorder; and
(d) in respect to the psychological condition, that the plaintiff’s condition is not “severe”.
The Plaintiff’s evidence
9 The plaintiff is twenty-eight years of age. He is married and lives with his wife, daughter, parents, sister and brother in Hampton Park.[1] He was born and grew up in Afghanistan until he was approximately eight or nine years of age, when the family moved to Pakistan. He did not attend school in either Afghanistan or Pakistan. In Pakistan, he worked part time making carpets. His evidence is that he learnt some English in Pakistan.
[1]Transcript (“T”) 89
10 In November 2007, the plaintiff arrived in Australia with his family. He studied English in Noble Park for approximately one year. He undertook a pre-apprenticeship as an electrician at Chisholm TAFE. He looked for an electrical apprenticeship but was unable to find employment. He worked for Victorian Pallet Supply and received Centrelink benefits.
11 In 2011, the plaintiff started work at Sterihealth, a medical waste disposal company, through a labour-hire company. He was officially employed as a machine operator by Sterihealth on or around 10 April 2012. He worked a thirty-eight hour week with overtime of about eight hours per week. He operated a sharps machine, used to crush sharps and other medical waste. He was required to lift bins full of hospital waste and put it on a machine before the machine would empty it. On occasion, he lifted trays. He estimated he lifted weights between 5 and 20 kilograms and his job involved bending, lifting, pushing, pulling and twisting in confined areas. He also worked on the line. This job required him to wait until a machine washed the waste bins. He was required to grab the waste bin from the line, reach into it, clean it and dry it all the way to the bottom before putting it back on the transport. The job was not heavy but it was awkward and involved bending, reaching and twisting to clean the inside of the bins.
12 Around late 2013, the plaintiff was experiencing minor pain which would come on during or after a day at work.
13 The plaintiff consulted his general practitioner, Dr Farhana Islam. The plaintiff was referred for x-ray on 8 November 2013 and a CT scan on 22 November 2013. He had some physiotherapy and time off work. He felt better and returned to work. He had the odd ache and pain in his back over the next few months.
14 On or about 22 May 2014, he felt a sharp pain in his back while operating a machine. He was trying to pull on a tray to unblock the machine. His back was never the same after the incident and his pain increased. He started to experience pain going down into his thighs and feet.
15 The plaintiff consulted his general practitioner, Dr Islam, who referred him for physiotherapy treatment. He underwent an MRI scan of his spine on 30 May 2014 and was off work for approximately two weeks before he returned to light duties. When he worked light duties, he was working four hours per day, as that was all he could manage. The plaintiff continued on light duties until he was terminated in March 2016.
16 In July 2014, the plaintiff was referred to Mr Michael Pullar, neurosurgeon, who diagnosed regional back pain, probably related to lumbar disc degenerative changes seen on imaging. He said the degenerative changes were worse than one would expect of a person of his age. Mr Pullar recommended conservative treatment and said the injury was work related.
17 In July 2014, the plaintiff’s employer referred him to the company doctor, Dr Arnold Shmerling, general practitioner, for treatment. Dr Shmerling referred him to physiotherapy and hydrotherapy.
18 In November 2014, Dr Shmerling, referred the plaintiff to Dr Neels du Toit, a sport and exercise physician, at the Metro Spinal Clinic, who recommended a steroid injection into the back, which provided a brief period of respite.
19 In January 2015, the plaintiff made a claim on WorkCover in relation to his back injury, which was accepted.
20 In February 2015, the plaintiff underwent a medial branch block performed by Dr du Toit, which did not provide much assistance. The plaintiff underwent an MRI scan on 17 April 2015.
21 In May 2015, Dr Shmerling referred the plaintiff to Mr D’Urso, neurosurgeon.
22 In December 2015, Mr D’Urso said the plaintiff presented with a history of back pain and sciatic symptoms. Investigations revealed a central L4-5 disc prolapse with annular tear. Significant degenerative findings were identified. The workplace injury sustained in May 2014 precipitated the onset of symptoms which has contributed to the L4-5 disc prolapse with annular tear. Mr D’Urso recommended the plaintiff continue with conservative treatment of hydrotherapy and physical therapy, anti-inflammatory and analgesic medication.
23 In late 2015, the plaintiff was referred to pain management at Frankston Pain Management, which the plaintiff underwent.
24 In January 2016, Mr D’Urso referred the plaintiff for a further MRI scan of the lumbar spine which confirmed the previous findings.
25 In March 2016, the plaintiff was terminated from his employment with his employer on the basis that there were no light duties for him anymore.
The credit of the Plaintiff
26 The plaintiff answered questions directly, made concessions, gave his evidence without embellishment and was straightforward in his presentation. There was no suggestion in the medical evidence that the plaintiff’s credibility was in issue. The plaintiff gave his evidence without the assistance of an interpreter. On occasions, his English was difficult to understand. He told the Court that he could read English. However, he said he could not understand 60 per cent of what he read in the newspaper. The plaintiff conveyed to the Court his keenness to obtain some form of employment. Overall, the plaintiff impressed me as a believable and credible witness.
Legislative framework
27 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)The injury suffered by him arose out of, or in the course of, or due to the nature of, his employment with the employer;
(b)The injury, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[2]
(c)The consequences to the plaintiff of his impairment to the lower back in relation to loss of earning capacity consequences must be “serious”, that is, when judged by comparison with other cases in the range of possible impairments can fairly be described as being more than significant or marked, and as being at least very considerable.[3]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
[3]Section 134AB(38)(b) and s134AB(38)(c) of the Act
28 In addition, in relation to loss of earning capacity consequences, as the plaintiff was under twenty-six years of age at the date of injury, I accept that the formula in s134AB(38(f) of the Act does not apply. Further, I accept the position is as set out by his Honour Judge Brookes in Jarvis v Woolworths Ltd.[4] That is, the Court may have regard to the probable income from personal exertion, which the plaintiff would have earned but for the injury over the worker’s probable earning life. This means the usual common law position prevails. Accordingly, in considering a loss of earning capacity and whether the plaintiff has a permanent loss of earning capacity of 40 per cent or more after the date of hearing and into the future, the following applies:
[4][2012] VCC 1329. His Honour summarised the principles applicable concerning loss of earning capacity as set out by Heydon J (as he then was) in the State of New South Wales v Moss (2000) 54 NSWLR 536 at paragraph [10], items (i) – (vi)
(a) evidence of past economic loss is some, though not conclusive, evidence of reduced earning capacity;
(b) it is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what the plaintiff is likely to earn after it;
(c) where a plaintiff has suffered a significantly disabling injury which affects the range and nature of work the plaintiff can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity;
(d) the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss. It is an issue of calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of possibilities.
(e) the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum;
(f) the task of the Court is to form a discretionary judgment by reference to not wholly determine criteria within fairly wide parameters.
29 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages; that is, for both pain and suffering and loss of earning capacity.[5]
[5]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
Loss of earning capacity – the narrative test
The physical injury
30 The plaintiff’s claim is that he suffered injury over the course of his employment with the employer and, in particular on 22 May 2014, the date of the alleged exacerbation of the injury with the employer.
31 All of the medical witnesses who expressed a view as to the physical injury accepted the plaintiff’s injury was work related. Accordingly, I accept the medical evidence that the plaintiff suffered a work-related injury to his spine.
32 The injury was variously described by the medical witnesses as:
·regional back pain, probably related to lumbar disc degenerative changes (Mr Pullar)
·chronic low back pain (Dr Shmerling)
·lumbar back pain (Dr Islam)
·chronic lower lumbar musculoligamentous disc-related pain (Dr Shanmugan)
·chronic lower back pain most likely coming from an L4-5 disc injury (Dr du Toit)
·central L4-5 disc prolapse with annular tear (Mr D’Urso)
·L4-5 disc damage with discogenic pain and radiculopathy (Mr Vellore)
·aggravation of lumbar spondylosis (Professor Bittar)
·aggravation of his pre-existing lumbar spine degenerative disease, which was predominantly asymptomatic. He has developed a secondary Chronic Pain Disorder (Dr MacBeth).
33 Dr MacBeth was the only doctor who commented upon the plaintiff suffering a Chronic Pain Disorder. The medical witnesses who expressed a view on the psychiatric and psychological issues did not refer to a Chronic Pain Disorder. Further, Dr MacBeth’s expertise is as an occupational physician. Accordingly, I place less importance on that aspect of her diagnosis.
34 Counsel for the defendant submitted that the plaintiff had ongoing back pain throughout 2013 up until the incident in May 2014. The plaintiff returned to light duties for approximately two years. Counsel for the defendant referred me to the affidavit of Mr Daniel Gleeson, the State Operations Manager of the employer, who deposed that the plaintiff was kept on lighter duties from late November 2013 to May 2014.[6] I was also referred to clinical notes as further evidence of the plaintiff’s pre-existing back pain.
[6]Plaintiff’s Court Book (“PCB”) 109 – 110
35 However, the plaintiff’s evidence was that he suffered occasional back pain throughout the period of his employment with the employer. The plaintiff was required to perform heavy, strenuous and arduous duties that required him to perform on hazardous manual handling, heavy lifting, and awkward bending and twisting between 2011 and 2014, and in particular, on 22 May 2014. After 22 May 2014, the pain became significant as a result of the incident at work. I accept that this is not a single episode which occurred on 22 May 2014. Rather the injury relied upon is arising out of and in the course of his employment with the employer by reason of the physical stresses and strains, and in particular, the incident which occurred on 22 May 2014. The plaintiff’s complaints of back pain made before 22 May 2014 were in the period 2013 to 2014 and throughout the course of his employment with this employer. There was one complaint in November 2011, which was prior to the plaintiff’s employment. There is no evidence to suggest that this was a pre-existing lower back condition. Accordingly, I do not consider that this amounts to an aggravation injury.
36 Counsel for the defendant submitted that there is an issue as to whether the plaintiff will undergo surgery. The medical evidence was divided. Dr Vellore recommended an artificial disc procedure at L4-L5. Mr D’Urso was aware that the option of a minimal invasive treatment had been discussed. He recommended the plaintiff’s condition be managed conservatively and surgical intervention should be considered if symptoms were to persist or worsen. Professor Bittar said given the plaintiff’s young age as well as the multi-level nature of the lumbar spine condition, he did not believe spinal surgery would offer him a significant benefit. This was the opinion of Mr Pullar. Given the difference in the views of the neurosurgeons on the effectiveness of surgery, I accept that the plaintiff’s reluctance to undergo surgery is justified. Accordingly, I accept his injury is permanent.
37 In respect of loss of earning capacity, it is necessary for me to consider the plaintiff as at the present time.
38 The up-to-date medical evidence in respect to the plaintiff’s capacity for employment was expressed by Dr Saravanan Shanmugan, general practitioner; Dr Neels du Toit, pain specialist; Mr Paul D’Urso, neurosurgeon; Mr Yagnesh Vellore, neurosurgeon and spine surgeon; Dr Bruce Shirazi, rehabilitation specialist; Professor Richard Bittar, neurosurgeon; and occupational and environmental physicians, Dr Robyn MacBeth and Dr Peter Wilkins.
39 In June 2017, Professor Bittar, neurosurgeon, said that the plaintiff suffered or presented with an aggravation of lumbar spondylosis and that his pain was predominantly discogenic in origin. He said the plaintiff was permanently incapacitated for his full pre-injury duties, or for any other work that has a significant physical or manual component.[7] It was his opinion the plaintiff, in theory, could work up to three hours per day, three days a week in a very sedentary role.[8] He agreed with the restrictions outlined in the medical report of Dr MacBeth of March 2017.[9]
[7]PCB 85, paragraph 4
[8]PCB 85, paragraph 5
[9]PCB 85, paragraph 4
40 In May 2017, Dr Shanmugan, general practitioner, concluded that the plaintiff was not fit for pre-injury duties, he could perform alternate duties, but imposed restrictions of no lift/push/pull objects weighing more than 5 kilograms, especially above waist level, not for continuous sitting, and repetitive back movement more than thirty minutes, that is thirty minutes of sitting, with five to ten-minutes break intervals for rest/stretching exercises.[10] In June 2017, he said the plaintiff should be able to work approximately three to four hours per day for three days in a week for a month, thereafter increase his hours gradually upon further assessment, but within the above-mentioned restrictions.[11]
[10]PCB 46
[11]PCB 77, paragraph 1
41 In February 2016, Dr Neels du Toit, physician in pain management, diagnosed chronic lower back pain most likely coming from an L4-5 disc injury.[12] It was his view the plaintiff could not return to pre-injury duties. He may be able to return to alternative duties with restriction of no lifting any heavy loads, perform any pushing or pulling of more than 5 kilograms, and no repetitive bending. He recommended a graduated return-to-work plan, as guided by an occupational therapist, in an alternative position with reduced hours.[13]
[12]PCB 54
[13]PCB 55
42 In February 2017, Mr D’Urso, neurosurgeon, said the plaintiff was symptomatic from degenerative disc disease, particularly at the L4-5 level, where central prolapse with an annular tear had been identified. It was his opinion the plaintiff had a permanent incapacity of a partial nature, which will prevent him from performing unrestricted physical or manual employment activity in the future. He recommended that the plaintiff persist with outpatient therapy, with emphasis on core exercise and hydrotherapy exercise.[14]
[14]PCB 71
43 In April 2017, Mr Vellore, neurosurgeon and spine surgeon, said the plaintiff did not have fitness for pre-injury employment. He said alternative duties would depend on suitable employment being provided to him which would involve lifting of no more than 5 kilograms and avoiding bending and twisting.[15] He further said that the significant pain levels that the plaintiff is experiencing may preclude him from any suitable employment.[16]
[15]PCB 74
[16]PCB 74
44 Mr Carey, orthopaedic surgeon, examined the plaintiff in November 2016 and provided a report. He did not specifically address the plaintiff’s employment options and therefore was of limited value to the task I am required to undertake.
45 Dr Robyn MacBeth, occupational and environmental physician, examined the plaintiff in March 2017 and provided a subsequent report. In April 2017, her diagnosis was that the plaintiff sustained an aggravation of his pre-existing lumbar spine degenerative disease, which was predominantly asymptomatic, apart from a few short-lived episodes of work-related lower back pain.[17] The aggravation occurred on 22 May 2014. It was her opinion that the plaintiff would not be fit to return to his pre-injury employment as a plant/machine operator, based on the nature and extent of his lumbar spine injury, and perform the inherent requirements of his pre-injury role.[18] She thought he was fit for alternate duties of part-time sedentary work with the following restrictions:
·need to alter his position as often as required according to his symptom level
·no repetitive bending, stooping or rotation of his spine
·no manual handling and lifting greater than 5 kilograms
·only to perform lifting between shoulder and knee height.[19]
[17]PCB 96
[18]PCB 98
[19]PCB 98
46 In November 2016, Dr Peter Wilkins, occupational physician, examined the plaintiff. He concluded that the plaintiff was permanently unsuitable to return to his former type of labouring work. It was his opinion that the plaintiff requires retraining, specifically in computer use, to fit him for light retail or similar work, which should be of a sedentary nature, but with an opportunity for him to stand and stretch from time to time and permit him to work in a standing position, ideally in an office environment but, potentially, also in light retail.[20]
[20]Defendant’s Court Book (“DCB”) 56
47 I accept that the medical evidence is that the plaintiff cannot return to pre-injury work, which was manual physical work, which is permanent. A number of the medical witnesses said the plaintiff can perform alternate duties of part-time sedentary work. The occupational experts imposed restrictions on such work. Dr Macbeth said the plaintiff would:
·need to alter his position as often as required according to his symptom level
·no repetitive bending, stooping or rotation of his spine
·no manual handling and lifting greater than 5 kilograms
·only to perform lifting between shoulder and knee height.[21]
[21]PCB 98
48 Dr Wilkins said the plaintiff requires retraining, he suggested, in computer use, to fit him for light retail or similar work, which should be of a sedentary nature, but with an opportunity for him to stand and stretch from time to time and permit him to work in a standing position, ideally in an office environment but, potentially, also in light retail.[22]
[22]DCB 56
49 The plaintiff’s evidence was that he wanted to work and was keen to be retrained. He had attempted a computer course at Dandenong Neighbourhood Community Centre but had difficulty completing the course because of the difficulty in sitting for any length of time.[23] I observed that when the plaintiff was in the witness box, he alternated between sitting and standing throughout the period he gave evidence. I also observed that during submissions, he left the court room on a number of occasions. I raised this with counsel. I was informed that I should draw the conclusion that this was to accommodate his pain. My other observation was that while the plaintiff gave his evidence without the assistance of an interpreter, his English was poor and he was extremely difficult to understand. The plaintiff’s evidence was that he had difficulty making himself understood, particularly on the telephone.
[23]PCB 37, paragraph 2
50 The defendant relied upon a vocational assessment report from Recovre dated 21 February 2017, which identified the following as suitable employment options:
·Culling operator/quality inspector
·Packer
·Despatch clerk.
51 Dr MacBeth provided two supplementary reports dated 31 May and 7 June 2017. She considered the Recovre Suitable Employment Report dated 21 February 2017.
52 In relation to the culling operator/quality inspector, Dr MacBeth noted the role required constant standing, and the option to sit to perform the role only exists on certain baking lines, and bilateral forward reaching is required constantly to a maximum distance of 900 millimetres. She said it was likely that the plaintiff’s chronic back pain would be exacerbated or aggravated by constant forward reaching at this distance. It was her opinion that the culling operator/quality inspector role does not constitute “suitable employment” for the plaintiff. Based on his limitations, he would not be fit to safely and efficiently perform the inherent requirements of the role without exacerbation or aggravation of his lumbar spine condition.[24]
[24]PCB 98.2
53 In relation to the role of packer, she noted that there was no minimum education requirement for this role. Dr MacBeth said the position related to a particular job which required lifting of Australia Post tubs weighing 6.7 kilograms on an average once per twenty to thirty minutes from bench height. She said the plaintiff’s chronic back pain would be exacerbated or aggravated by lifting the tubs every twenty to thirty minutes from bench height and, in particular, from floor level. The requirement to lift greater than 5 kilograms did not fit within the medical restrictions recommended in her earlier report. Further, she noted that there were folding speed targets with allowances made for new or lesser practised workers. In her opinion, the plaintiff was unlikely to be able to consistently meet these targets due to his fluctuating level of back pain. She concluded that the packer role did not constitute suitable employment for the plaintiff based on his functional limitations.[25]
[25]PCB 98, paragraphs 2 and 3
54 In relation to the role of despatch clerk, it was Dr MacBeth’s opinion the plaintiff did not have the level of education and employment history, and did not possess the indicative school level required to perform this clerical and administrative role. The education and training requirements for the position are Year 10 level and the plaintiff did not attend school in his country of origin, Afghanistan. Further, the despatch clerk role involved seated computer-based tasks that occupy 90 per cent of the work day and that opportunities to stand and walk can be incorporated at regular intervals. The plaintiff would need to alter his position as often as required according to his symptom level. His sitting tolerance is between ten to twenty minutes, he will require frequent postural changes during his shift, which would impact on his ability to complete the required workload efficiently, and on a consistent basis. In her opinion, the despatch clerk role does not constitute suitable employment based on his education, skills and work experience. In addition, given the functional limitations and permanent medical restrictions, the plaintiff would not be fit to efficiently perform the inherent requirements of the role.[26]
[26]PCB 98, paragraph 3
55 It was Dr MacBeth’s opinion that if the plaintiff was able to better manage his back pain and improve his functional capacity in the future, it is possible for him to regain a capacity for retraining and work, and to successfully obtain employment of a sedentary nature that he can perform on a reliable and consistent basis. She said his incapacity for work is unlikely to be permanent if he can better manage his chronic pain and, in turn, improve his functional capacity in the future.[27]
[27]PCB 98, paragraph 4
56 In a further supplementary report dated 7 June 2017, Dr MacBeth reviewed the rehabilitation management NES 130-Week Vocational Assessment Report dated 28 February 2017. She re-stated that despatch officer and customer service officer did not constitute “suitable employment” roles. She concluded that the receptionist and call or contact centre operator roles do constitute suitable employment for the plaintiff, based on his education, skills, and work experience.[28] However, Dr MacBeth stated that given the plaintiff’s functional limitations, he is only fit to perform these roles provided he is able to comply with the medical restrictions.[29] In an email to the plaintiff’s solicitors dated 8 June 2017, she clarified that the plaintiff was only fit to undertake the roles of receptionist and call or contact centre operator for four hours per day on Monday, Tuesday, Thursday and Friday, namely, sixteen hours per week.[30]
[28]PCB 98, paragraph 6
[29]PCB 98, paragraph 7
[30]PCB 98, paragraph 8
57 In March 2017, Dr Wilkins was asked to consider the report dated 21 February 2017 from Recovre regarding suitable employment, and provide his opinion as to whether the plaintiff could perform the positions of culling operator/quality inspector, packer and despatch clerk. He said the job descriptions were generic but it was his opinion the plaintiff had the physical capacity to undertake work in these roles. Further, as identified by Recovre, that the plaintiff would benefit from the option to sit or stand while working. He recommended return to work should be undertaken on a graduated basis, monitored by his nominated treating doctor.[31]
[31]DCB 58-59
58 In May 2017, Dr Wilkins re-examined the plaintiff. Following re-examination of the plaintiff, it was still his opinion that, provided suitable accommodations were made for the plaintiff, he would be likely to have the capacity to undertake the employment as a culling operator/quality inspector, packer and despatch clerk. He said the plaintiff would need the ability to change between seated and standing postures frequently throughout the day in order to minimise his pain experience.[32] The plaintiff indicated that he would attempt such employment, but could not give an honest answer as to whether he could accomplish the work.
[32]DCB 65
59 As to the position of culling operator, Dr Wilkins opined that the plaintiff’s should be able to undertake this role provided he alternated between sitting and standing on a comfort-required basis. Dr Wilkins commented that he anticipated the plaintiff may have difficulty with the intermittently required bending component described for in the position.
60 In relation to the position of packer, Dr Wilkins said that the plaintiff would need the opportunity to change between sitting and standing postures on a comfort-dictated basis. He considered the plaintiff would be capable of envelope stuffing, bag stuffing and sealing, stapling and envelope gluing but may have difficulty in sundry tasks such as picking dropped materials off the floor.
61 In relation to the position of despatch clerk, it was his view the plaintiff would require considerable computer retraining in order to fit into this work. He thought the plaintiff could undertake the telephone component, photocopier and general administration tasks but thought the filing tasks would require bending to reach the lower-level arch files and may be difficult. He said the plaintiff would need the ability to move between sitting and standing positions. He thought he would have difficulty negotiating such flexibility or accommodation because of his language skills. He said employers varied in their ability to provide flexibility or accommodation.
62 Ultimately, Dr Wilkins concluded that the plaintiff would need to undertake any return to work on a graduated basis, with increases under the supervision of his nominated doctor. He said that apart from the plaintiff requiring additional computer-based training for certain of the despatch clerk tasks, the plaintiff did have the necessary skills to perform the tasks of the job. He did not think the plaintiff was capable of full-time performance but noted he appeared willing to try.[33] Dr Wilkins was not asked to consider the positions of receptionist and call or contact centre operator roles.
[33]DCB 67
63 As to the positions of receptionist and call or contact centre operator, I consider it is unrealistic to suggest that the plaintiff could perform such roles. This is due to the fact that when the plaintiff gave his evidence in Court, it was difficult to understand what he was saying. Furthermore, the plaintiff’s own evidence was that he struggles to make himself understood in ordinary telephone calls to English speakers. I formed the view that his English skills would restrict his ability to obtain employment in the open market. Accordingly, I think it unrealistic to accept that this plaintiff could obtain employment as a call centre operator. In respect to a receptionist, it is highly likely that the position would involve computer-based tasks. The plaintiff’s evidence was that while he had attempted a computer course, he was unable to create a document using Microsoft Word. Further, he was unable to complete the course because of the level of pain he suffered. I accept that the chances of him obtaining employment as a receptionist in the real world is highly unlikely.
64 The plaintiff’s evidence is that he has never attended school. He has only worked in physical employment. He can no longer work in pre-injury physical employment. To his credit, he has attempted retraining courses, but due to the pain, has been unable to complete those courses. I accept the plaintiff cannot return to pre-injury employment. Given his age of twenty-eight years, and the fact that there are restrictions imposed on the type of work the plaintiff can obtain, I consider this represents a loss to the plaintiff. The plaintiff impressed me as a man who wanted to return to work. This is what he told a number of the medical witnesses and the Court. I accept that his inability to return to work represents a significant loss to the plaintiff, both with respect to his enjoyment of life and his self-esteem.
65 I am satisfied that the plaintiff’s impairment is permanent given the medical evidence. I note that the impairment has remained since 2014.
66 I am satisfied it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by comparison with other cases in the range. This is particularly so given the plaintiff’s age and his non-existent education. The plaintiff, therefore satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairment. No element of mental component is taken into account in this assessment, indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
67 Pursuant to ss(g) of s134AB(38) of the Act, I am also required to consider issues of retraining and rehabilitation. The plaintiff has been offered and has attempted retraining but was unable to complete such courses due to his pain levels. I am satisfied that the plaintiff has complied with s134AB(38)(g) of the Act. Accordingly, I am satisfied that the plaintiff will have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
68 Therefore, I am satisfied the plaintiff has satisfied the 40 per cent requirement and has sustained an injury within s134AB of the Act.
69 The above position is reached purely by reference to the plaintiff’s physical condition; namely, his spine.
70 In view of my findings in relation to the physical injury, it is not necessary for me to consider the plaintiff’s claim under paragraph (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
71 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering and loss of earning capacity is successful.
72 I will now hear the parties on costs.
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