Ian Charlton v FCN Transport
[2008] VMC 17
•15 December 2008
IN THE MAGISTRATES COURT OF VICTORIA
AT LATROBE VALLEY
WORKCOVER
Case No. X00324863
| Ian Charlton | Plaintiff |
| v | |
| FCN Transport Pty Ltd | Defendant |
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| MAGISTRATE: | S Garnett |
| WHERE HELD: | LaTrobe Valley |
| DATE OF HEARING: | 8 October 2008, 1 December 2008 |
| DATE OF DECISION: | 15 December 2008 |
| CASE MAY BE CITED AS: | Ian Charlton v FCN Transport |
| REASONS FOR DECISION |
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Catchwords: “current work capacity” – “no current work capacity” – “degree of realism
required”
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Carson | |
| For the Defendant | Mr Batten | |
| HIS HONOUR: |
1. Mr Charlton is a 61-year-old interstate semi trailer driver who sustained significant back injuries because of an incident when he tripped and fell whilst alighting from his truck on 8 January 1994.
2. His claim was accepted and he has received weekly payments for all periods of incapacity until they were terminated on 1 December 2007 following a termination notice issued by the Agent dated 30 August 2007, which alleged he had a “current work capacity” within the meaning of the Act.
3. Mr Charlton has undergone numerous medical procedures because of the injury sustained. These include:
- 25 July 1996 – lumbar laminectomy performed by Mr Owen, Orthopaedic
Surgeon;- 2003-4 – lower lumbar facet blocks and radiofrequency neurotomy and L5
transforaminal epidural steroid injection;- 1 April 2005 – percutaneous disc decompression/nucleoplasty on the L5/S1
disc;- January 2006 – medial branch blocks; - 11 August 2006 – lumbar discography; - 16 October 2006 – L5/S1 decompression and instrumented fusion performed by
Mr Malham, Neurosurgeon4. Mr Charlton had approximately 18 weeks off work following the injury. He then returned to full time truck driving duties until a worsening of his condition led to the initial surgery, which was performed by Mr Owen on 25 July 2006. He was then off work for approximately 30 weeks and once again returned to full time truck driving duties, although he gave evidence that the actual duties were lighter in nature. In approximately 2002, he sold his truck and purchased a mini-mix but due to financial reasons subsequently returned to truck driving carting paper.
5. Mr Charlton gave evidence that throughout the period from when he first underwent surgery until he finally ceased work in November 2005, he tried various methods to manage his pain, including the various medical procedures to which I have referred. By November 2005, he said he just could not cope anymore nor bear the pain. At that stage, he was working 45-50 hours per week driving interstate. He told the court that he could not sit or stand for long periods, experiences pain in the back and down the right leg to his foot and experiences numbness in the foot. He regularly takes tramadol and panadol if the pain is bad.
6. In relation to his work history, he told the court that he left school at 15 years of age, worked on the family farm for 7-8 years, spent 2 years building bridges and 4 ½ years as a dairy share-farmer before working as a sub contract driver for a number of different employers. He then commenced work as a driver with FCN in 1986 and sustained the injury in 1994. He gave evidence that FCN sold out to Toll Holdings in 2001 for whom he worked for six months and then tried to work in his own business by purchasing a mini-mix but only lasted one year. He then worked with Brislan Transport as a paper carter/heavy combination driver until November 2005 when he had to give up work because, as he said in evidence, his back and leg pain, “finally got the better of me”.
7. Mr Charlton, under cross-examination vehemently denied he has “retired”. He gave evidence that he has not applied for any work because he does not know what he could do given his age and work-related injuries. Although he is participating in a basic computer course at TAFE six hours per week on the recommendation of Paul Hartley, rehabilitation consultant, he does not believe it will be of any use to him in being able to obtain employment. Mr Charlton gave evidence that he has been offered truck driving jobs and as a bulldozer/digger operator by friends but knows he cannot perform the duties required. In cross-examination he disputed, that he would be able to work as a taxi driver or courier because of his physical limitations and would need to be trained to be able to work in the truck management area.
Medical Evidence
8. On behalf of Mr Charlton, evidence was given by Dr Edwards and reports tendered from him and Mr Owen, Dr Verrills, Mr Malham, Mr Kudelka, Ms Angel Human Resource Consultant, Mr Hartley, Dr Wallin and Mr Jones, who examined Mr Charlton on behalf of the defendant.
9. The defendant tendered reports from Dr Baynes and Mr Malham.
10.The nature of Mr Charlton’s condition is not in dispute. He had a lumbar disc injury for which he has undergone a laminectomy and spinal fusion with associated degeneration. The issue to be determined is the extent of his incapacity for work.
11.Dr Edwards, who is Mr Charlton’s treating doctor, confirmed that he prescribes Mr Charlton a reasonably heavy dose of tramadol (which can cause drowsiness) and occasionally diazepam to relieve his pain. He gave evidence that Mr Charlton has a residual work capacity but that having regard to his age, education and pain level, he has no realistic prospect of returning to work. In cross-examination, he conceded that Mr Charlton could work as a taxi driver with appropriate restrictions but would find learning new skills such as computer work intellectually challenging.
12.Mr Malham opined in 2006 and 2007 that Mr Charlton was fit for a gradual return to work, the types of jobs, which would be best assessed by an occupational health physician. He noted in his report dated 5 July 2007 that Mr Charlton was limited in standing and walking to one hour.
13.Dr Baynes, Occupational Physician, examined Mr Charlton for the defendant on 10 May 2007 and 15 May 2008. He believed that in theory Mr Charlton would be able to undertake a sedentary office job, 20 hours per week, particularly in the transport industry where he was able to sit, stand and walk around as need be. He did not believe he could work as a truck driver or courier.
14.Mr Kudelka examined Mr Charlton for medico-legal purposes on 10 December 2007 and 4 August 2008. During the August 2008 examination, Mr Charlton told him that his tolerance for sitting and standing was twenty minutes, walking about 1km, lifting weights of 10kg, but not walking while carrying any weight and unable to lift weights above his head. In relation to Mr Charlton’s work capacity, Mr Kudelka stated: “I believe in a country town and with no experience except dairy farming and truck driving, this patient at the age of 61 is virtually unemployable. He has no education, training or qualifications which would make clerical, administrative or similar work a realistic possibility, unless special concessions are made in that he can avoid prolonged standing, sitting, bending, stooping or lifting weights and avoid car travel in excess of thirty minutes”.
15.Ms Angel from Flexi Personnel provided a report dated 13 August 2008. She expressed the opinion that hypothetically Mr Charlton might have some transferable skills but that with his disabilities it would be extremely difficult if not impossible for him to perform productively in the workplace, even with allowances being made for his restrictions. Mr Hartley, who provided a vocational assessment report for the workcover agent in 2007 believed that with suitable re-training Mr Hartley, may be able to return to a support role in the transport industry.
16.Dr Wallin examined Mr Charlton for the Agent on 15 June 2006 (prior to the spinal fusion performed by Mr Malham) and believed at that stage Mr Charlton had to be considered as being very marginalised in the workforce and having a quite restricted or minimal capacity for employment.
17.On 3 September 2008, Mr Clive Jones, Orthopaedic Surgeon, examined Mr Charlton on behalf of the defendant’s solicitors. He obtained details of Mr Charlton’s current complaints, which included ongoing back and leg pain, only being able to sit and stand for 45 minutes and walk for 30 minutes. He noted Mr Charlton is prescribed Tramal and Diazepam. He believed that Mr Charlton might be able to work in an office of a transport company if a suitable position could be found for him provided he could sit and walk around as needed. He noted that it would also depend on the hours he would be expected to work and the work situation. He dismissed the possibility of Mr Charlton working as a courier driver or console operator.
Conclusion
18.The defendant concedes that Mr Charlton is incapacitated for his pre-injury duties because of the effects of his work injury but contends he has a capacity for suitable employment. The defendant was particularly critical of Mr Charlton’s lack of effort in attempting to find suitable employment and suggested that he had effectively retired himself from the workforce.
19.I do not accept that there is any foundation to this criticism of him. He sustained what was obviously a very significant injury to his back in 1994. He continued to work despite suffering constant and sometimes disabling symptoms. He has undergone numerous medical procedures including a laminectomy in 1996 and spinal fusion in October 2006. After postoperative recovery, he returned to work until he was in too much pain to continue. I accept without reservation the evidence of Mr Charlton that he would like to return to employment but is unable to do so because of the severity and disabling nature of his symptoms. In view of his age, schooling and work history, residential location and the nature and extent of his injury, he has no realistic capacity for employment.
20.The suggested suitable jobs of working in the office of a trucking company, courier or taxi driver are unrealistic. As I stated in Bos v Safeway[1], Goodwin v Gallagher Bassett and Sanders v NAB[2] and past decisions referred to therein, a “degree of realism” is required when considering the issue of an injured workers capacity for suitable employment. This has been the test to apply in relation to work capacity as far back as the decision by Judge Higgins in Meehan v VWA on 12 April 1996.
[1] 19 December 2007[2] Decisions 3 July 200821.Since my decisions in Goodwin and Sanders, Mr Justice Ashley has also applied the application of the concept of a degree of realism in Jayatilake v Toyota Motor Corporation[3] where he said when considering an s 134AB matter, the “impact of such injury upon the appellant’s ability to work in a real life situation” and in the footnote to it said, “when regard is had to the circumstances mentioned in the definition of that term by s 5 of the Act, there was no suitable employment for him”.
[3] [2008] VSCA 167 at Para 16422.Judge Bowman referred to Mr Justice Ashley’s support for the concept in the matter of Alapanopoulos v E D Oates P/L on 31 October 2008 where he said:
“It may be that she possesses a theoretical capacity for suitable light work which, in some individuals, could result in the burden not being discharged. However, in accordance with the definition of “suitable employment” to be found in s.5 of the Act, and as reinforced by the decision in Barwon Spinners and more recently in Jayatilake, various factors pertinent to the individual plaintiff must be taken into account, and the reality of the situation examined”.
23.More recently in the matter of Smorgan Steel Tube Mills v Majkic[4], Buchanan JA (with whom Kellam JA and Robson JA agreed), said[5]:
[4] [2008] VSCA 230 (25 November 2008)[5] Para 10“In my opinion the phrase ‘in suitable employment’ applies equally to income the worker is earning and is capable of earning. The element to be ascertained is the worker’s loss of earning capacity, and requires comparison between what the worker was earning or was capable of earning at the date of the decision and what he was earning or would have earned had the injury not occurred. If the phrase ‘suitable employment’ qualifies only the income from personal exertion the worker is capable of earning, the work on one side of the comparison may be a contrived, adventitious, short-term occupation bearing little or no resemblance to the work for which the worker is suited. I consider that the legislature intended that the worker’s loss of capacity was to be determined having regard to work that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker, who is incapable of performing his normal work. In my opinion the phrase ‘in suitable employment’ applies equally to income the worker is earning and is capable of earning. The element to be ascertained is the worker’s loss of earning capacity, and requires comparison between what the worker was earning or was capable of earning at the date of the decision and what he was earning or would have earned had the injury not occurred. If the phrase ‘suitable employment’ qualifies only the income from personal exertion the worker is capable of earning, the work on one side of the comparison may be a contrived, adventitious, short-term occupation bearing little or no resemblance to the work for which the worker is suited. I consider that the legislature intended that the worker’s loss of capacity was to be determined having regard to work that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker, who is incapable of performing his normal work”.
24. After referring to the definition of “suitable employment” in s 5 of the Act he said[6]:
“The definition directs attention to the realities of the labour market”.
25.Mr Charlton does not have a “realistic” work capacity. He is 61 years of age, left school at aged 15, has no other formal qualifications, has mainly worked as a farmer or been involved in using heavy equipment or driving trucks, has not been re-trained, lives in Morwell, has a significant injury with disabling symptoms and which requires medication, the side effect of which may effect his mental alertness and/or co- ordination.
26.Although he has not formally applied for any employment position, he gave evidence that he has looked in the papers, discussed possible jobs for which he may be suited with his doctor and rehabilitation consultants, which, in my opinion, satisfies the requirements of s 93 CC (3).
ORDERS:
27.I therefore find that Mr Charlton has “no current work capacity” which is likely to last indefinitely. He is entitled to have his weekly payments re-instated from the date of termination.
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