Ioannidis v Victorian WorkCover Authority
[2021] VCC 2062
•23 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-00678
| JOHN IOANNIDIS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 October 2021 | |
DATE OF JUDGMENT: | 23 December 2021 | |
CASE MAY BE CITED AS: | Ioannidis v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2062 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – pecuniary loss – lumbar spine injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Acir v Frosster Pty Ltd [2009] VSC 454; Richter v Driscoll [2016] VSCA 142; Sidigi v Kotsios (2021) VSCA 187; Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC | Arnold, Thomas & Becker |
| For the Defendant | Ms F Ryan | Thomson Geer |
HER HONOUR:
1Mr Ioannidis makes application pursuant to section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 for a serious injury certificate for pain and suffering and pecuniary loss. He alleges that he sustained a serious injury whilst making timber moulds and ramps for Enviro Rubber Pty Ltd (“Enviro Rubber”) between 19 May 2014 and 24 November 2016.
2He claims loss of function of the spine, with symptoms in the back, neck, legs, hips and knees. He relied on two affidavits and was cross examined.
3The defendant relied on one affidavit of Raewynne Perry, the former owner and director of Enviro Rubber, who was not required for cross examination.
4Various medical reports and records were tendered, but no doctors were required for cross examination. I have reviewed the medical material and summarise it here only to the extent necessary to explain my reasons.
Background
5Mr Ioannidis was born in December 1969 and left school after completing Year 10. He has had many jobs, including as a cabinet maker, carpenter, security officer, managing a fish and chip shop and as a restaurant manager and waiter. He has also worked as a machine operator and forklift driver.
6In May 2014 after an extended period out of the workforce, he started work with the defendant, initially making timber moulds and later making and constructing ramps. This work required him to drive to a customer’s premises, take measurements and then return to the employer to construct the timber mould for the ramp. Other workers would pour rubber into the moulds he had made. Once the mould had set, the ramp would be loaded onto his ute and transported to the customer. Sometimes he loaded the ramps, sometimes other workers did this task. He drove the ramps to the customer, unloaded and installed them.
7He says that over the course of his employment, he began to notice he was having increasing pain, particularly in his lower back, right groin and right hip. His back hurt when he went over bumps when driving. He says he asked for help and reported that his back was hurting because of the work but was treated in an aggressive, insulting and degrading way. He was told to “man up’. He made himself a wheeled ramp to help him unload the ramps from his ute but he was still required to do a lot of manual lifting which was painful and difficult. He says he persevered until he “could no longer handle it” and he left the job at the end of 2016. Since then, and aside from a period of about four hours’ work a few weeks ago, he has not been in the workforce.
The evidence
8The plaintiff’s evidence was that he had left his work because of his increasing back pain. He told occupational physician Dr Catherine Bones on 14 March 2017 that his worsening back pain was “one of the reasons” he left work, but also that he felt unable to keep his boss happy, that he had safety concerns as he had experienced an eye injury and a nail injury to his foot, and that he was humiliated when asked “What have you done for four hours?” in front of other staff which he felt was inappropriate.
9In her affidavit Raewynne Perry says Mr Ioannidis disclosed a pre-existing “bad back” at his interview. She said that on the 22 November 2016, she felt he had spent excessive time on an afterhours task. She queried him which resulted in him coming to her office where he “began to rant and swear at me about how unhappy he was with me not giving him enough work”. When she said she had no additional work to give him she says he told her to “take your job and shove it”. She annexes to her affidavit a note that she says is a “copy of a letter I wrote at the time confirming the circumstances of the plaintiff’s resignation on 23 November 2016”. This letter is dated 23 November 2016. However, it refers to contact she made with him on both 24 November 2016 and the following week. It is unclear when this letter was in fact written. Ms Perry was not required for cross-examination.
10Mr Ioannidis rejects this account of his departure. However he does agree that he was not being given enough hours and had asked for more hours around the time of his departure. Mr Ioannidis said that prior to leaving his employment he had been in “so much pain for so long that I slowly but surely reached a point where I simply couldn’t go on at work and that is why I left”. He said in oral evidence that by November 2016 he had been in this level of pain for about six months but that it could have started earlier. He said “I didn’t notice. There could’ve been likely pains. I didn’t think much of it. But then when it got – when it increased, my pain, that’s what I – I started trying to do something about it or trying to work it out”.
11He told various medico-legal experts that, prior to finishing at Enviro Rubber in November 2016, he was often “bed-ridden” with pain.
12He saw Dr Garrow on 16 August 2016, approximately three months before he finished work. He came in to do a Vic Roads check regarding his chronic fatigue, which he passed. At that time, he reported that he was working between 20 and 40 hours and has no complaints. He reported that he was taking no medication.
13In cross examination Mr Ioannidis said that this attendance was “before” his pain flared up, and that he must have “got the dates wrong”, or that the doctor must have got the dates wrong in his report. This latter explanation is highly implausible and it is more likely that in fact Mr Ioannidis was not in significant pain at the time of this attendance.
14He told Dr Catherine Bones that he attempted to see Gr Garrow after leaving Enviro Rubber but he was on holiday. In his affidavit material he says he tried to attend Dr Garrow at Central Bayside Community Health Service but could not do so because Dr Garrow was on leave. He had difficulty making an appointment because Dr Garrow was “booked out”. He did not see Dr Garrow until 27 January 2017, more than two months after he ceased work.
15In cross examination he said, “On the third day I went and saw my local GP because Dr Garrow was not available”. The local GP he was referring to was a doctor in Mentone.
16However, the only evidence of a medical attendant on a GP in Mentone, a Dr Arkhon, was on 23 December 2016, nearly a month after he ceased employment. He agreed that was probably the date he had seen Dr Arkhon.
17The note of this attendance records “depressed, anxious has sleep problems all to do with current poor work relationship”. There is no mention of back or groin pain or any physical ailment. Dr Arkhon prepared a mental health plan and referred him to a psychologist.
18It was put to him that he attended his general practitioner for depression and anxiety due to what he considered a poor work relationship, and not because of back pain. He said “I can’t remember fully, 100 per cent. I was disoriented. I didn’t know where I was at that stage”.
19He said that he was “bedridden for weeks after that, yeah. I couldn’t get out of bed”. It was put to him that if he had really been bedridden for weeks he would most certainly have mentioned it to his doctor. The following exchange occurred:
“Mr Ioannidis: Well he wasn’t my doctor. He even told me, he goes ‘I can’t do anything for you. You need to see your own doctor’, so the conversation was cut short. There was no – I could not say anything else to him.
Counsel: Mr Ioannidis, you gave evidence before that your back was so bad that you needed to see a doctor, you couldn’t get into your own doctor, Mr Garrow, so instead you saw a different doctor at Mentone, do you remember giving that evidence?
Mr Ioannidis: Yes
Counsel: What you told Her Honour was that you needed to see a doctor at that time because of your back?
Mr Ioannidis: Yes, Well…
Counsel: What you’re now saying, I suggest, is that in fact, maybe you didn’t tell the doctor about your back pain because he wasn’t your doctor. Is that your evidence now?
Mr Ioannidis: Yeah, well he told me he couldn’t do anything for me. My conversation was cut short. I needed money, I needed a certificate as well, so he gave me a certificate, and he suggested that I go see my doctor, my general doctor, so the conversation was cut short. I could not complain to him about my back or anything else.
Counsel: You’re now saying you remember this conversation pretty well then?
Mr Ioannidis: Well, I do remember it, yeah.
Counsel: Are you now saying you wanted to tell him about your back, but you couldn’t because he cut you off?
Mr Ioannidis: Yeah. He cut me short. He goes ‘Mate, what are you here for?’. He goes, ‘You need to see your doctor’, or – you know I started raving on, and he goes, ‘No, well, I’m not your doctor. You need to see your general doctor’, and I said ‘Well, I can’t get in because he’s on holidays, also I’m here for a certificate. I’ve got no money, I’m depressed’, and he goes, ‘Mate’ – just cut it short, leave it at that, so…
20As counsel submitted, Mr Ioannidis’ account is at odds with the fairly comprehensive notes taken by Dr Arkhon in relation to Mr Ioannidis’ mental state. Dr Arkhon made a mental health plan for Mr Ioannidis and referred him for psychological treatment. It is implausible that a doctor would refuse to treat an apparently severe back condition of recent onset on the basis that the patient should see his usual practitioner who was unavailable.
21I do not accept Mr Ioannidis’ account of this attendance and conclude that he attended Dr Arkhon for his mental state and to obtain a certificate for Centrelink.
22This exchange was just one example of the unreliability of the plaintiff. Whilst he had a tendency to give answers that suggested he was quite certain of his evidence, on a number of occasions he resiled from his position or was forced to accept that his account could not be correct.
23For example, his evidence about his work history prior to his employment with the defendant was not supported by his tax and Centrelink records, even though he was adamant that he had not received Centrelink benefits to which he was not entitled. If he is correct in this evidence, then his evidence about the dates and/or length of his previous employment must be wrong.
24Similarly, his evidence that he was “bedridden” for days at a time, and that he was “bedridden a lot of times” in the two months before he stopped work was simply implausible. During that period, he was working as much as forty six hours a week, was requesting additional work and had complained that he was not being given enough hours. He had attended Dr Garrow in August 2016 and made no complaints about his back or about any pain. There is no medical material supporting his assertion during this period that he was bedridden with pain.
25Counsel for Mr Ioannidis submitted that a more appropriate interpretation of what the plaintiff meant when he described himself as bedridden as being someone who needed to lie down to get rid of the pain.
26However, I specifically questioned him as to what he meant when he described himself as being “bedridden”. He said, “It was that sore I couldn’t get out of bed.”
27It was put to me that the plaintiff’s evidence was so implausible that it should be rejected.
28The examples noted above cause me to have reservations about the reliability and credibility of the plaintiff. However, I do not reject all of his evidence. His unreliability has caused me to look for objective confirmation of his ]evidence where possible.
Medical background
29Mr Ioannidis has a complicated medical history. He first made a claim in relation to this injury on 30 January 2017, having left the workplace on 24 November 2016.
30His past medical history includes illicit drug use including of methamphetamine, chronic marijuana consumption, and severe iron deficiency anaemia that kept him out of the workforce for many years. He was sexually abused as a child and has had psychological sequelae from that, although he says that at the time he was employed by the defendant he was “in a good place psychologically”.
31The plaintiff says that he had an extended period of feeling unwell, dizzy and fatigued, but that this resolved after a needle was removed from his foot. He said that he did not know he had this needle in his foot, or how it got there and that when it was removed, “[the symptoms] all went away”. There was no further exploration or explanation of this matter and I am uncertain what to make of it.
32He has consulted a chiropractor, Mr Sam Liveriadis, sporadically since 2001. His chiropractor reports occasional episodes of pain and discomfort arising from a musculoligamentous type spinal injury. Prior to the subject employment, Mr Ioannidis most recently saw Mr Liveriadis in 2012. He next saw Mr Liveriadis in September and October 2016. Mr Liveriadis notes that “the diagnosis was always relating to spinal joint malfunction resulting in spinal nerve irritation and muscle spasm that was making him temporarily symptomatic and affecting his overall mobility. Spinal manipulation in the form of specific chiropractic spinal adjustments of the affected spinal segments, along with some soft tissue treatment and trigger point therapy was beneficial and enough to correct his problem”.
33On 4 January 2011, he attended his general practitioner with severe low back pain after mowing the lawn.
34On 27 June 2011, he presented to Monash Medical Centre with back pain. He left after about twenty minutes without treatment. The medical record notes “I informed Mr Ioannidis that I suspected that he was seeking opiates. Patient told he can wait to be seen and I am happy to refer to pain team for management of his chronic pain or he can attend his GP. Mr Ioannidis chose to leave”.
35The ambulance record from that attendance notes “Pt reported that he has ongoing back problems for the past year. Worsened over the past 4 days”.
36On 5 September 2011 he was again noted by his general practitioner to have pain in lower back. During this period, he was also noted to be depressed and was prescribed an antidepressant, Cipramil, with good effect.
37On 2 May 2012, he attended his GP after apparently being hit in the back with a hammer following an altercation over money. He was noted to have bruising over his upper back and upper thigh.
38On 30 September 2012, he attended Monash Medical Centre with severe back pain requiring ambulance attendance and the administration of Penthrane 3ml at the scene. His hospital record notes “old workplace injury. Recent patient in drug rehab at Dandenong but self-discharged 2/7 ago”. He left several hours after his attendance “at own risk” with no treatment having been administered. The ambulance note of this attendance records “aggressive patient/bystander PT had been known to get violent” and reported that the patient was “lying supine on garage floor rolling around”. He stated that he wanted to be sedated because of back pain. He was noted to have a history of cannabis, amphetamine and methamphetamine use. The ambulance assessment was of back pain and psychiatric episode.
39On 17 June 2014, his general practitioner reported “lower back pain which is relieved with paracetamol and has no associated bowel, bladder or neurological symptoms.”
40On 22 July 2014, he is noted to have a chest infection with wheeze and “back aches”.
41On 16 August 2016, he attended his general practitioner for a Vic Roads check. On that occasion he said that he had no complaints, was not doing drugs and was a “new man” because of regular work which he enjoys.
42On 25 January 2017, he attended Dr Garrow with back pain which he says was caused by lots of bending and lifting at work. He denied a past history of back pain.
43On 20 March 2017, he attended his general practitioner complaining of back pain.
44In March 2017 he presented to Dr Garrow with groin pain radiating to the back, which he then stated was the pain that had caused him to stop working. Investigation demonstrated inguinal hernia and he had surgical repair in April 2017 with good results. On 23 May 2017, he attended Dr Garrow who has recorded “says he is much better and ready for work. Exploring options but should not do heavy lifting work.” He was given a certificate for return to work.
45On 25 August 2017 he attended his general practitioner complaining of low back pain but on 26 March 2018 his general practitioner recorded that he is moving without back pain.
46On 13 November 2017, he reported to his general practitioner that he had had a bad week with back and groin pain but was “ok now”.
47On 12 May 2018 he had his first consultation with his current treating general practitioner Dr Olaniyi. At that time, he was on Zoloft and Temazepam.
48On 25 September 2018, he attended his general practitioner with right sided lower back pain, radiating to the right leg with pins and needles at times. He was prescribed Celebrex and advised to attend emergency if his symptoms failed to improve.
49He has had few medical attendances specifically for back pain, though his radiological condition remains unchanged. Various medical records and reports were tendered to the Court.
50CT scan of January 2017 showed bulges at L4/5 and L5/S1 with mild central canal stenosis at L4/5 and mild bilateral L4/5 foraminal stenoses.
51Mr Ioannidis’ treating chiropractor, Mr Sam Liveriadis in a report dated 21 January 2021 notes that when seen in September and October 2016, Mr Ioannidis reported that his symptoms had built up gradually whilst lifting at work. Mr Liveriadis had not seen him during the previous four years as he had responded well to treatment and his condition had stabilised. After the consultation in October 2016, he was still symptomatic and returned in January 2017. However, despite remaining symptomatic in January 2017 he could not afford the chiropractic fees and ceased attending.
52CT scan of 30 June 2021 note degenerative disc changes, moderate sized left disc herniation at L5/S1, moderate disc bulging and thickening of the ligamenta flava at L4/5 level resulting in moderate to severe canal stenosis, small left sided disc herniation at L3/4 and a small right sided disc herniation at the L4/5 level.
53Mr Grossbard, orthopaedic surgeon, reports Mr Ioannidis has back pain in relation to degenerative lumbar disc disease and facet joint arthropathy, which became symptomatic following increased work activity. He considers that the injury has been aggravated by his work in the presence of underlying degenerative change.
54Dr John O’Brien, orthopaedic surgeon, notes X-rays of the lumbar spine are reported as demonstrating significant lumbar spondylosis affecting the lower two motion segments of the lumbar spine.
55Dr O’Brien opines that Mr Ioannidis has symptomatic lumbar spondylosis, which is aggravated by heavy physical activity and therefore, employment has been an aggravating factor.
56Dr Hazem Akil, neurosurgeon, notes in his report dated 15 July 2021, that Mr Ioannidis has some restrictions in the extension and forward flex of his lumbar spine
57Dr Akil states that the injury as described by Mr Ioannidis is consistent with the stated cause and that:
“Mr Ioannidis does have the diagnosis of aggravation of lumbar and cervical spondylosis caused by the type of activities that he used to do at work. Driving truck and doing loading and unloading of heavy objects is the major contributing factor to the presence of his symptoms.”
58Dr Akil considers that the injuries and the symptoms identified in his lower back are permanent.
59Dr Sam Soliman in a report dated 22 September 2021 notes chronic degenerative disease with intermittent flare up since 2002.
60Mr Ioannidis’ current treating general practitioner, Dr Isaac Olaniyi opines that the repetitive and heavy nature of the plaintiff’s work contributed to and possibly caused his lower back pain, which he describes as ‘mild to moderate’ in June 2021.
61Dr Catherine Bones, in a report of 14 March 2017, notes the radiological findings and considers that:
“The degenerative conditions of right hip and lumbar spine are constitutional in nature, however, based on my examination and the history provided to me, I consider that Mr loannidis has experienced an exacerbation of a pre-existing degenerative and asymptomatic condition of the lumbar spine and the right hip.” (DCB 61)
62However, Dr Michael Dooley, orthopaedic surgeon, considers that Mr Ioannidis has age related degenerative disc change affecting his lumbar spine and notes episodic low back pain that predates his employment.
63Similarly, Dr Tony Kostas, rheumatologist, in a report dated 9 November 2017 did not consider that Mr Ioannidis had an injury, but rather needed an exercise program to improve his general physical fitness. He says “(t)he problem here is that the worker perceives himself to be injured, but there are clearly many other non-physical factors impacting upon his presentation.”
Submissions
64The defendant submits that Mr Ioannidis had a pre-existing back problem which on two occasions required him to call an ambulance and attend hospital in 2011 and 2012. His back problems since that time are, it is submitted, a continuation of a pre-existing degenerative disorder.
65The defendant says that Mr Ioannidis is so unreliable that his evidence as to the extent of his pain should be rejected and that, because the medical assessments are based on his report as to the degree of pain, they too are unreliable.
66The defendant showed the court video evidence which showed Mr Ioannidis walking, bending and lifting without any apparent impairment, and submitted that this supports its argument that Mr Ioannidis simply does not meet the threshold for a serious injury certificate.
67Further the timing of the first attendance with complaints of back pain after ceasing work raise a real question as to the timing of the onset of his pain. He did not seek treatment for back pain until nearly two months after he left work, he attended a general practitioner within a month of leaving work but did not mention back pain, and he did not seek medical treatment or mention back pain to his treating doctors in the six months prior to his departure, when on his evidence he was in severe pain and was often bedridden.
68Finally, the defendant says that the plaintiff’s evidence about his increasing pain whilst at work is inconsistent with his evidence that he was unhappy with the number of hours he was getting and wanted more work.
69The plaintiff submits that, though he had occasional back problems which had required treatment, including chiropractic treatment, these had well and truly resolved by the time he commenced work with the employer.
70His evidence was that his back had “come good” by 2014 and was not causing him any significant problems until his work aggravated his underlying degenerative condition.
Findings
71As noted above, I have reservations about the reliability of the plaintiff’s evidence. However, the medical material supports a finding that, although he did have pre-existing occasional back pain, this generally resolved after chiropractic treatment. It did not require investigation or medication. His two attendances at hospital with apparent back pain are both well prior to the commencement of his employment, and also in circumstances where there is at least the possibility that the attendance and back pain was impacted by psychiatric components, or drug seeking behaviour. Despite his attendance at hospital, on both occasions he left without treatment and there is no suggestion in the material that he was assessed as having any back injury of significance.
72The timing of his first complaints of back pain after leaving his employment raise a question as to the timing of the onset of his pain and consequently the cause of that pain. This is an aspect of the plaintiff’s claim that may more appropriately be explored at trial, noting that this application is merely a gateway and all the evidence has not been tested before the Court.
73As is often the case, the video surveillance footage was not definitive one way or the other. It showed the plaintiff undertaking a limited array of tasks. He said he was having a “good day” when the footage was taken. That might be so. I give the video surveillance little weight in assessing this application.
74Ultimately I am satisfied that the plaintiff’s back injury is connected to his work because of the following matters:
(a) he had no complaints of back pain or attendances of any medical practitioner for back problems for four years prior to his employment;
(b) he has consistently complained of back pain since leaving work;
(c) the radiological findings support a finding that he has a degenerative condition that is consistent with a work related aggravation;
(d) the balance of the medical experts support a conclusion that his work was at least a contributing cause of his symptoms.
Serious Injury
75I turn now to consider whether the plaintiff has sustained a serious injury that is “more than significant or marked” and is at least “very considerable”.
76A plaintiff who has sustained a loss of earning capacity necessarily has a serious injury for the purposes of the test. Therefore, I shall first consider whether the plaintiff has sustained a loss of earning capacity that meets the relevant threshold.
Work Capacity
77The plaintiff says that he has not worked since leaving his employment, apart from a very recent attempt to undertake some “light labouring work”. He says that after about four hours of work, which involved carrying fairly light building materials, he was unable to continue and had to stop due to his back pain.
78The plaintiff says that his pre-injury earning capacity should be assessed on the basis that, in March 2016 he was working up to 53 hours a week and grossing $1128.90. In the alternative, if the Court does not accept that his pre-injury working capacity was 53 hours a week, the plaintiff submits that the evidence demonstrates that his pre-injury earning capacity was at least $1,000 a week. It is not entirely clear how the plaintiff arrives at this figure.
79His gross earnings in the 2016 financial year were $748 per week. Prior to his employment with the defendant there were many years where he was out of the workforce. He says that the hours that he was able to work were not always available to him, and his payslips show that some weeks he worked 46 hours, while other weeks he only worked 17 hours. The plaintiff submits that, if the Court does not take his highest earning week, that is, the week he worked 53 hours, as representative of his earning capacity, nor should it take the lowest earning week as the representative week.
80The defendant submits that his pre-injury earning capacity was the capacity at which he was actually earning, that is an earning capacity of $748 per week. In order to succeed in his application for leave to pursue pecuniary damages, Mr Ioannidis would have to satisfy the Court that he currently has an earning capacity of no more than sixty per cent of his pre-injury earnings.
81Various medical reports were tendered in relation to Mr Ioannidis’ work capacity. Many are out of date and of little assistance to the Court. For example, Dr Garrow formed the view in March 2017 that Mr Ioannidis had returned to his pre-injury status as regards his back, but that tells me nothing about his current condition.
82Dr Akil, neurosurgeon, opines that his ability to walk for less than 10 minutes and stand for more than 30 minutes, together with his age, work experience, previous education level and place of residence, mean his return to the workforce will be “very challenging and difficult”.
83Mr Dooley forms the view that Mr Ioannidis does have a work capacity on a graduated return to work program, and that work should not be regular heavy physical work or work that involved a lot of bending, lifting or manoeuvring.
84Mr Grossbard opines that Mr Ioannidis has a work capacity for simple sedentary duties not involving bending or lifting.
85Dr Slesenger, occupation physician, says that he has a work capacity of four hours a day, four days a week, in occupations that required no pushing, pulling, carrying or lifting over 5 kilograms, or that require repetitive bending or twisting, or whole body vibration.
86Dr Bones, occupational physician, says he is not suitable to return to his pre-injury duties, but retains a work capacity that restricts his exposure to factors that would aggravate his underlying condition, such as jarring and jolting.
87Mr Hartley, vocational assessor, says that Mr Ioannidis has no current prospects of obtaining work in the labour market. He says he would be restricted to light or sedentary work, with no, or restricted bending, twisting and exposure to vibratory forces. His capacity would be for part time work only.
88Mr O’Brien says that, although Mr Ioannidis is not totally incapacitated for work, he is highly unlikely to find suitable employment given his experience largely involves heavy physical work. Employment of this type would likely aggravate his condition.
89In contrast, Mr Soliman considers that Mr Ioannidis is fit for fulltime suitable work duties where there is no repetitive heavy lifting over 8-10 kilograms. He considers such suitable employment would include sales representative, restaurant or venue manager or concierge.
90In Acir v Frosster Pty Ltd[1] J Forrest J summarised a number of principles relevant to the exercise required to measure loss of earning capacity. They are:
“First, and importantly, s 134AB(38)(f) is a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is a part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of earning capacity sustained by the worker.
Second (and a corollary of the first proposition), in determining without injury earning capacity, the Court is not required to make an assessment, at this stage, of loss of earning capacity as in a claim for damages. Rather, it compares the worker’s earning capacity, as defined, with the statutory formula for the assessment of after injury earnings (considered subsequently).
Third, the fixing of the gross income which most fairly reflects the earning capacity is a limited inquiry not to be confused with that made in a damages claim. It … is confined to those matters which go to the practical exercise of that capacity, not its diminution by outside events. In that regard I have in mind those matters referred to by the Minister in the Second Reading Speech, namely, increases/decreases in wages and other employment opportunities. The exercise is not to determine loss of earning capacity – which is a damages issue, but, rather, to focus on earning capacity in a limited context.
Fourth, the sub-section does not mandate a mathematical assessment of without injury earnings, such as a formula based upon the earnings of the worker over a particular period prior to the injury or at the time of injury. Rather, it requires the Court to fix a figure which ‘most fairly reflects the worker’s earning capacity’ without injury. (at [171] – [174]) Citations omitted.”
[1] [2009] VSC 454
91The defendant says that the evidence, at its best for the plaintiff, supports a finding that he has back pain once or twice a week, that is mild to moderate in nature, that clinical signs are minimal and that he retains a significant work capacity. The defendant submits that the only impediment to work is the plaintiff’s purported pain, and that because his evidence is implausible, internally inconsistent and in some instances simply nonsensical, his evidence ought to be rejected. The defendant points to the plaintiff’s evidence that, on the one hand, he had a working capacity of more than 50 hours a week, whilst also saying that during the same period he was bedridden for days. There is little substantiable evidence for the claimed severity of his pain which means that there is little support for his claimed work incapacity.
92Further the defendant says that the plaintiff has a knee injury that requires him to wear a brace at least twice a week and a left hip injury that is not part of his back injury. To the extent that he does have a work incapacity, there is a significant disentangling issue.
93The defendant says that Mr Ioannidis has failed to establish on the medical evidence that he has pain and restrictions that impact on his ability to work at all. The onus is on the plaintiff to establish a prima facie case that he is unfit for suitable employment and only then does the defendant need to establish that such suitable employment exists.
94Nevertheless, the defendant did put to Mr Ioannidis various occupations that it submitted would be suitable employment for Mr Ioannidis. These included:
(a) restaurant manager; and
(b) sales representative of industrial products and building supplies.
95In addition, Mr Ioannidis mentioned that he had at one stage wanted to get his security licence and he was questioned as to whether he could undertake work as a security guard.
96Mr Ioannidis was taken through the tasks required of a restaurant manager. Whilst he agreed that he had the skill set necessary for such a job, given his previous experience, he did not consider that he was currently capable of this job. He said his past experience did not require him to arrange or order stock, or do payroll or any of the accounts. He was “good with his hands and bad with paperwork” and he had only very limited computer literacy. The job as outlined was not one that he considered he would be able to do on an ongoing basis.
97In relation to the sales representative job, he agreed that he could “probably” promote and sell building and construction material to customers, but it would “depend(s) on the hours and what is required of me, you know? Coming and going, you know, to companies, how long am I travelling”. He has never worked in sales and there were aspects of the job requirements that were not clear. He said that he did not know much about computers and that he certainly did not want to work with forklifts, as he had a lot of negative experiences with forklifts and would not be in a position to demonstrate the operations of a forklift. He said that for any job he would have to see what was involved and whether, after working one day, he would be available the next or whether he would be bedridden and would let his employer down.
98In relation to being a security guard he said that although he had previously been interested in this job, his back was now worse, so sitting on a chair watching screens “I don’t think I could do that either”. He says he is using more pain medication “I’m eating these Lyrica like they’re lollies.”
99He said that he felt his work capacity was “three or four hours a day, two hours a day, depending”. He said “What happens when my back plays up and I’m bedridden? I’m going to let my employer down. No way full-time. I can’t even cut the grass without having problems”.
100The plaintiff submits that he has only a very restricted work capacity and certainly not more than 16 hours a week.
101His 2016 earnings reflect an average of just over 35 hours a week, which is close to a full time working week.
102Aside from the occasional week here and there where long hours were worked, I am not persuaded that Mr Ioannidis’ pre-injury earning capacity should be assessed as greater than fulltime earnings. There is no evidence that he could or would have sustained a working week of 53 hours, particularly given he had a range of prior health problems and a significant period of absence from the workplace.
103I find that Mr Ioannidis’ pre-injury earning capacity was for full time work, that is 38 hours per week, earning $809.40. To satisfy the test, Mr Ioannidis must have a current earning capacity of no more than $485.64.
104The medical material is almost unanimous in finding that Mr Ioannidis has a retained work capacity, although Mr Hartley considers he has no current prospects in the labour market.
105For the purposes of this application, I am required to consider his work capacity only by reason of any limitation placed upon it due to his work related injury, but also considering his personal circumstances.
106I have expressed my reservations about the reliability of Mr Ioannidis’ evidence and consider some of his evidence is not credible. Specifically, his complaints of being bedridden with pain for days or weeks whilst still seeking additional hours at work, and his account of his conversation with his general practitioner.
107I also have some concerns about the reliability of his account of the onset of his symptoms, not because I consider Mr Ioannidis is trying to mislead or deceive the Court, but because he now considers that the root of his problems lies in his work with the defendant and attributes his pain to his employment.
108However, I do accept that Mr Ioannidis is a person who is experiencing significant and ongoing pain, and that this is aggravated by bending, lifting, standing or sitting for long periods or walking for long periods. I have made my own assessment having seen him in Court and heard his evidence. I note the comments of the court in Richter v Driscoll[2] that the worker’s work capacity:
“requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances – these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment but to work in that employment as a settled member of the workforce”. (at 95)
[2] [2016] VSCA 142
109As it was put in Sidigi v Kotsios[3] the “mere fact” that a worker may be physically capable of performing work duties does not always mean that the worker has the ability to undertake work in the employment. The entirety of the worker’s circumstances must be considered.
[3] (2021) VSCA 187 at 85
110I am satisfied that he has a loss of earning capacity and have considered all the medical material and his evidence, as well as his evident discomfort after sitting for several hours in court, the fact that he was wearing and frequently wears a back brace and requires pain medication. It is unlikely that he could work more than 50 per cent of a full time position. That is, I find his working capacity is limited to no more than 20 hours per week, over four or five days.
111The sorts of jobs proposed by the defendant seem highly unlikely to be employment for which Mr Ioannidis would be suitable. Notwithstanding his previous experience as a restaurant manager, the tasks involved in a job of that type in 2021 are likely to have at least a component of them that requires a significant degree of computer literacy and other skills that Mr Ioannidis does not have.
112He has no experience in sales and this job would not appear to be suitable employment having regard to his “relevant personal circumstances”, which include his pre-existing psychological condition and his level of education.
113There is nothing in the evidence before me to suggest that, even if he was able to find suitable employment, his hourly rate would be substantially more than he was earning with the defendant, that is about $21 per hour. With a work capacity of no more than 20 hours per week on a similar salary as his pre-injury work, he would meet the threshold of having sustained a loss of earning capacity of at least forty percent of his pre-injury earnings.
114Accordingly, I am satisfied that the plaintiff has sustained a loss of earning capacity and consequently has sustained a serious injury for the purposes of the legislation.
115As I am satisfied that he has a pecuniary loss that is at least forty percent of his pre-injury earning capacity, it is not necessary to consider the other consequences. His pecuniary loss is a consequence that is, by its very nature, more than significant or marked and is at least “very considerable”.[4]
[4] Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833
116Leave shall be granted to the plaintiff to issue common law proceedings for pain and suffering and pecuniary loss.
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