Johnsen v Blowflex Mouldings Pty Ltd
[2014] VCC 365
•3 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-02123
| JUSTIN JOHNSEN | Plaintiff |
| v | |
| BLOWFLEX MOULDINGS PTY LTD | First Defendant |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 March 2014 | |
DATE OF JUDGMENT: | 3 April 2014 | |
CASE MAY BE CITED AS: | Johnsen v Blowflex Mouldings Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 365 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the right eye and head – detached retina – depression – anxiety disorder – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242
Judgment:Leave granted to the plaintiff to commence a proceeding at common law seeking damages for pain and suffering and economic loss consequences as a result of his employment with the first defendant on 14 August 2001.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC with Mr C S O’Sullivan | Maurice Blackburn Pty Ltd |
| For the Defendants | Ms V Nadj | Minter Ellison |
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 in his employment with the first defendant on 14 August 2001.
2 The plaintiff brings this application pursuant to paragraphs (a) and (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
3 There, “serious” is defined as meaning:
“ (a) permanent serious impairment or loss of a body function.
(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
4 The body function relied upon in this application is injury to the right eye and head with a detached retina. The mental or behavioural disturbance or disorder relied upon is depression and an anxiety disorder.
5 The plaintiff relied upon two affidavits, sworn 7 December 2012 and 26 February 2014. The plaintiff was cross-examined. I have not summarised the plaintiff’s evidence or affidavits. I will refer to the plaintiff’s relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Issue
6 Counsel for the defendants conceded that the plaintiff satisfied the test for a serious injury in respect to pain and suffering. What was in issue was whether the plaintiff satisfied the test for loss of earning capacity.
7 Counsel for the plaintiff submitted that the case is primarily about the physical injury; accordingly, I shall consider the physical injury and whether the plaintiff satisfies the test for loss of earning capacity.
Relevant legal principles
8 In view of the concession made by the defendants, I will only address the relevant legal principles in respect to loss of earning capacity.
9 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
10 In order to succeed, the plaintiff must prove, on the balance of probabilities that “the consequences” to the plaintiff of his impairment to the right eye and his head and detached retina in relation to “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[2]
[2]Section 134AB(38)(b) and (c) of the Act
11 In addition, to the “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[3]
[3]Section 134AB(19)(b) and 38E of the Act
(a) that at the date of hearing, he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[4]
[4]Section 134AB(38)(e)(i) of the Act
(b) that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more,[5] and
(c) that even with rehabilitation and retraining, he will still sustain a loss of 40 per cent or more.[6]
[5]Section 134AB(38)(e)(ii) of the Act
[6]Section 134AB(38)(a) of the Act
12 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, both pain and suffering and loss of earning capacity.[7]
[7]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]
13 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
14 The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
15 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard; and[8]
(b) notes that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[9]
[8]Section 134AB(38)(j) of the Act
[9] See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
16 Section 134AB(38)(h) of the Act requires that psychological consequences are to be wholly disregarded in relation to s134AB(37)(a) cases.
The medical reports
17 In March 2012, Dr Robert Henderson of the Royal Victorian Eye and Ear Hospital certified in relation to the superannuation/insurance claim that the plaintiff would be unlikely to work in a job for which he is reasonably qualified by education, training or experience because of a giant retinal tear in the right eye and macula off retinal attachment resulting in permanent loss of vision in his right eye.
18 In March 2012, Dr Magdy Massaud, general practitioner, provided a similar certificate.
Dr William G Campbell
19 In August 2013, Dr Campbell, vitreo-retinal specialist, confirmed that the plaintiff underwent right cataract surgery in March 2011 and subsequently, developed a retinal detachment in that eye, for which he underwent four surgical procedures over a six-month period. He said the plaintiff’s vision remains poor.
Associate Professor Justin O’Day
20 In October 2013, Associate Professor O’Day, ophthalmologist, examined the plaintiff at the request of the plaintiff’s solicitors and confirmed that on 14 August 2001, the plaintiff was struck in the temple by an industrial cardboard cone which caused him to lose vision in his right eye for three days. His vision gradually improved and he returned to pre-injury work.
21 In 2008, his vision slowly deteriorated and became blurred. By 2010, he was noted to have a cataract which was causing significant visual disturbance. He underwent a right cataract extraction and lens implantation on 24 March 2011. After the surgery, his visual acuity improved and he returned to work. He subsequently noted flashing lights and reduced vision in his right eye and was diagnosed with a retinal detachment and underwent a retinal detachment surgery in September 2011. He made a much poorer visual recovery than after the cataract surgery, and his vision remained reduced in his right eye. He had approximately five operations on the right eye. He has not returned to work.
22 The plaintiff complained of constant soreness in his right forehead immediately above his right eye, and bright lights causing migraine in his right frontal and temporal area. He develops migraines twice per week and these may last a few hours.
23 Associate Professor O’Day said the plaintiff has lost binocular vision and as a result, it would be difficult for the plaintiff to drive heavy roadwork machinery, which he was operating prior to his most recent surgery, and otherwise work in situations where stereo acuity is important. In addition, he said the visual disturbance, together with the development of migraine, would impede the plaintiff’s ability to return to his employment as a maintenance fitter. He said it was difficult to determine how many hours the plaintiff could work, and to know at what point soreness or headache may develop and interfere with his work. He recommended a workplace assessment. He considered the vocational assessment reports from Ayres Management Services Pty Ltd dated May 2012 and 18 March 2013 (“the Ayres Reports”), and agreed with their recommendations.
Dr H Sutcliffe
24 In December 2013, Dr Sutcliffe, occupational physician, examined the plaintiff at the request of the plaintiff’s solicitors. Dr Sutcliffe examined the medical reports and obtained an occupational history from the plaintiff. She reviewed the Ayres Reports.
25 It was her opinion that the plaintiff has no capacity for pre-injury employment now or into the foreseeable future. He has no capacity for any occupation he previously performed. Further, the plaintiff cannot return to working with heavy plant or machinery or using hand or power tools. He cannot perform prolonged or repeated use of computers or use of screens.
26 In addition, he cannot perform any of the occupations listed in the Ayres Reports now or into the foreseeable future due to his incapacity of limited visual acuity, blurred vision and intolerance to screen-based activity. She disagreed with the conclusions reached by Associate Professor O’Day that the plaintiff has a capacity for the jobs listed in the Ayres Reports.
27 Dr Sutcliffe said the plaintiff’s prognosis is poor. She did not believe he could perform any of the occupations in the Ayres Reports on a permanent, sustained, consistent and reliable manner now or into the foreseeable future, taking into account his age, education, past work experience and incapacity. She concluded that the plaintiff had no realistic capacity for employment as a result of his physical injuries, in either pre-injury employment or suitable employment.
Vocational assessment reports
Flexi Personnel
28 In January 2014, the plaintiff’s solicitor engaged Ms Mary Oliver, recruiter, of Flexi Personnel to prepare an employment assessment of the plaintiff. Ms Oliver reviewed medical reports, interviewed the plaintiff and read the plaintiff’s affidavit. Ms Oliver said the plaintiff’s pre-injury employment was in manual work and he had very limited alternative work-ready transferable skills.
29 Ms Oliver concluded, from an employment perspective, and in her opinion as a recruiter, taking into account the plaintiff’s right eye injury, associated symptoms and headaches, the medical opinions, his pre-injury work experience and restricted work-ready transferable skills, the plaintiff has a major barrier to overcome when presenting himself to perform to a standard equalling industry expectations in an alternative commercial work environment.
30 Ms Oliver said, from a recruitment perspective, the plaintiff carries a significant injury that prevented his successful return to the workforce for almost two and a half years, and which demonstrates the negative impact the injury had on his ability to undertake alternative employment, regardless of industry. It was her view that the right eye injury alone would hamper his work prospects. She further said the plaintiff has a theoretical capacity to undertake a retraining or study program based on successful pre-injury training and relevant trade studies.
31 She said the plaintiff rated his computer knowledge and skills at an intermediate level, but that this was useless as he was unable to consistently or reliably operate a computer for more than 20 minute periods, depending on the extent of his headaches and blurred vision. She concluded he was most unlikely to manage to retrain and perform sedentary office-type work or work in any role that required extensive reading, writing or computer use.
Katrine Green Consulting Pty Ltd
32 The plaintiff relied on a report dated 5 February 2014 prepared by Ms Katrine Green, a psychologist with expertise in organisations. Ms Green reviewed medical reports, interviewed the plaintiff and reviewed the Ayres Reports and the report by Ms Oliver of Flexi Personnel. Based on the plaintiff’s education, vocational training, work history, transferable skills and occupational knowledge, she identified the following occupations for which the plaintiff could be considered:
§ production supervisor
§ die and tool setter
§ production machine operator
§ factory process worker
§ product quality controller
§ store person/warehouse assistant
§ road maintenance traffic controller
§ sales representative
§ logistics and delivery clerk, and
§ receiving and despatch clerk.
33 She considered the core duties of each occupation. She concluded that none of the occupations were suitable employment options for the plaintiff within the foreseeable future, having regard to the medical opinions provided, the analysis of the occupations, the plaintiff’s right eye injury and his current physical capacity.
34 She considered the suitable employment options identified by the Ayres Reports and said that some of those occupations do not match the plaintiff’s level of education, work history and transferrable skills, including production manager, account manager and warehouse administrator. She considered that some of the clerical jobs reported are similar in role and tasks and that the main difference is job title rather than a difference in occupation per se.
35 She concluded that, having regard to the medical opinions provided, the analysis of the occupations, the physical demands of the core duties, the plaintiff’s right eye injury and current physical capacity, the plaintiff was unable to perform the inherent duties of his previous occupation or the inherent duties of any suitable employment within the foreseeable future. She said due to the plaintiff’s right eye injury, the plaintiff is not a suitable candidate for retraining or re-education within the foreseeable future.
The Defendants’ medical reports
Dr David Gale
36 In February 2014, Dr Gale, ophthalmologist, said the plaintiff had a capacity for work, not in his pre-injury duties, but in the alternative duties as outlined by the Ayres Report dated 18 March 2013. He questioned the plaintiff’s motivation. He said the jobs identified were roles which were within the plaintiff’s scope despite the loss of vision of his right eye.
Dr Andrew Shaw
37 In December 2012, Dr Andrew Shaw, vitreo-retinal fellow, said the plaintiff’s eye condition would not prevent him from undertaking the duties outlined in the Ayres Report of 9 May 2012.
Vocational assessment
Ayres Management Services Pty Ltd
38 In May 2012, Mr Greg Bishop, rehabilitation consultant, met with the plaintiff, obtained a history of the plaintiff’s current education/qualifications and prepared a report identifying job options. An attempt had been made to communicate with Dr Massaud and Dr Henderson without success. The pro forma document forwarded to Dr Henderson was returned completed by Dr Jamieson from the Victorian Eye and Ear Hospital, stating that the plaintiff was fit to return to work on a graduated basis without restrictions.
39 In January 2013, when interviewed by Mr Fitzsimmonds the plaintiff reported that his employment with Citywide was terminated owing to work performance issues. More particularly, the plaintiff was making continual mistakes with computer operation and invoicing.
40 In May 2013, a further assessment report was prepared by Ms Heferen. She identified the following job options:
§ order clerk
§ receiving and despatch clerk
§ logistics clerk
§ internal sales person
§ sales representative – selected environments
§ warehouse administrator
§ production manager/supervisor manufacturing (selected environment).
41 Ms Heferen said the plaintiff had good computer knowledge and skills to utilise in his job seeking activities, but he is required to take regular breaks, as using a computer for more than 20 to 30 minutes strains his good eye. Ayres Management Services Pty Ltd was to work with the plaintiff for a sixteen-week period, with the aim of the plaintiff becoming an independent job seeker.
Video surveillance
42 I was informed that the plaintiff was subject to surveillance on two occasions. The first film was taken on 4 February 2014 and was approximately 27 minutes in duration, although I was shown approximately 10 minutes of the film. The film showed the plaintiff in his garage and garden. He was walking around. He agreed he was doing some gardening.
43 The second film of 27 July 2013 was of particularly poor quality, and there were various jumps in the film. It showed the plaintiff at the local football with his sons and nephew. He was the only person shown wearing sunglasses. He agreed he was showing his nephew how to kick a torpedo, but he could not remember kicking the ball. He agreed he could have mucked around with the football. I did not see the plaintiff kick the football, only holding the ball. He agreed he would have been at the football for approximately six hours but would not have been outside for the entire time. He agreed he would have been outside while the game was being played. Otherwise he was in the function room. He said when he was going to be outside he dosed up on medication.
44 He agreed he carried a clipboard with a stopwatch attached. He said the stopwatch was to record time if someone is “red carded”. He said the figures on the stopwatch were large. He said the need to use the stopwatch may have occurred one or two times per season, and he rarely performed that job. He was also required to record the players’ numbers that sat on the interchange. He said he recorded the numbers from the jumpers. The person who normally performs the recording was sick.
45 I concluded the films did not show the plaintiff performing any activity inconsistent with his evidence. Accordingly, I accept the films did not assist the defendants’ case.
Credit of the Plaintiff
46 The plaintiff’s credit was not in issue. He answered all questions put to him directly; he made concessions. He impressed me as being genuine. The plaintiff, aged thirty-eight years, had worked since the age of fourteen or fifteen. He had limited education, having completed Year 9, and leaving school during Year 10. His evidence was that he had worked long hours to provide for his family. He reported to Ms Green that he had always been a good provider for his children. He worries about his financial situation and is fearful he will not be able to keep his house. Currently, he is a single parent. He is the father of five children, three of whom live with him, aged fourteen, sixteen and nineteen. They are all students.
Analysis of the evidence
47 Given the concessions that the plaintiff suffered a serious injury in respect to pain and suffering and that this is primarily a physical injury restriction, I shall first consider the physical impairment; namely, the right eye and head with detached retina and whether or not the plaintiff satisfied the test for loss of earning capacity.
48 In March 2012, the plaintiff’s treating medical practitioners, Dr Robert Henderson and Dr Magdy Massaud, certified that the plaintiff was unlikely ever to be able to work in a job for which he is reasonably qualified by education, training or experience because of the right retinal detachment and macular degeneration. Those doctors were not requested to update their opinions.
49 In determining the plaintiff’s impairment, I must make the assessment at the time of hearing the application. Accordingly, I place greater weight on the most up-to-date medical evidence of Associate Professor O’Day, Dr Sutcliffe and Dr Gale. All examined the plaintiff in the past nine months.
50 Of the most up-to-date medical evidence, all doctors agreed the plaintiff had no capacity for pre-injury employment. Accordingly, I accept that the plaintiff has no capacity for pre-injury employment.
51 The issue was whether the plaintiff could perform suitable employment. All medical witnesses considered the Ayres Reports dated 9 May 2012 and 18 March 2013.
52 In February 2014, Dr Gale had examined the plaintiff on three occasions. He thought the plaintiff had a capacity for work. He said the plaintiff could perform the duties of the job options outlined in the Ayres Reports. He said they were within the plaintiff’s capacity despite the loss of vision of his right eye. Dr Gale questioned the plaintiff’s motivation for work. I was influenced by the plaintiff’s evidence on this point. He said he had been in employment continuously since aged fifteen. He had worked long hours to provide for his family, working nightshifts, weekends and public holidays. He said he would like to be working. His treating psychiatrist said of him “He has been a hard compassionate worker right throughout his work career”.[10] I do not accept the plaintiff lacked motivation for work.
[10]Plaintiff’s Court Book, page 40
53 Associate Professor O’Day agreed with the recommendations in the Ayres reports. However, he said it was difficult to determine the number of hours the plaintiff could work and at what point the soreness or headache may develop and interfere with his work. I accept that Associate Professor O’Day considered that the plaintiff could perform suitable employment but on a part-time basis.
54 Dr Sutcliffe said the plaintiff could not perform the duties of the job options outlined in the Ayres Reports because of his incapacity of limited visual acuity, blurring vision and intolerance to screen-based activity. Further, she said he could not perform the occupations in a permanent, sustained and consistent and reliable manner. She believed he had no realistic capacity for employment, either pre-injury or suitable employment. Dr Sutcliffe did not consider the reports of Ms Oliver (Flexi Personnel Pty Ltd) and Ms Green (Katrine Green Pty Ltd).
55 I accept the medical evidence is that the plaintiff cannot return to pre-injury duties because of his injury to the right eye and head with a detached retina. Dr Gale and Associate Professor O’Day said the plaintiff could perform suitable work. However, Associate Professor O’Day qualified his view, as he said it was difficult to determine the hours the plaintiff could work. Neither Associate Professor O’Day nor Dr Gale had the opportunity to review the reports of Dr Sutcliffe, occupational physician, and the vocational assessment reports of Flexi Personnel and Katrine Green Pty Ltd. Dr Sutcliffe said the plaintiff had no realistic capacity for employment, either pre-injury or suitable employment.
56 The jobs identified in the Ayres Reports were put to the plaintiff. The plaintiff said most of those jobs required computer work or reading labels. He said he was not a good reader at the best of times. He lacks concentration and his vision blurs after using the computer for 15 or 20 minutes. Further, he said his employment was terminated with Citywide due to work performance issues; namely, constant mistakes he was making with computer operation and invoicing due to his eye condition. The plaintiff said most of the jobs required data entry.
57 Ms Green, of Katrine Green Consulting Pty Ltd said that some of the suitable job options identified by the Ayres Reports did not match the plaintiff’s level of education, work history and transferrable skills, in particular production manager, account manager and warehouse administrator. Further, she said that some of the clerical jobs reported are similar in role and tasks, and that the main difference is job title rather than a difference in occupation per se.
58 Ms Green said that the job options identified in the Ayres Reports which were most relevant to the plaintiff’s work history and transferrable skills were included in the occupations analysed by her in her report. Ms Green concluded, having regard to the medical opinions provided, the analysis of the occupations and the physical demands of the core duties, the plaintiff’s right eye injury and current physical capacity would prevent him from performing the inherent duties of his previous occupation and the inherent duties of any suitable employment within the foreseeable future.
59 Further, she concluded that due to the plaintiff’s right eye injury, he was not a suitable candidate for retraining or re-education within the foreseeable future. This view was supported by Ms Oliver. Accordingly, I accept that vocational retraining and re-education will not assist the plaintiff.
60 Ms Oliver said the plaintiff’s pre-injury employment now was in manual work and he had limited work-ready transferrable skills. As a recruiter, she said taking into account the plaintiff’s right eye injury, associated symptoms and headaches, the medical opinions, his pre-injury work experience and restricted work-ready transferrable skills, the plaintiff has a major barrier to overcome when presenting himself to perform to a standard equalling industry expectations in an alternative commercial work environment.
61 Dr Sutcliffe’s expertise is understanding the requirements of the labour market. Given the evidence of Dr Sutcliffe as to the reality of workers being expected to perform when, as in this case, they have significant eyesight problems, concentration difficulties and headaches, I am persuaded by her opinion. Furthermore, her opinion is supported by the vocational experts. Accordingly, I accept that the plaintiff has no realistic capacity for employment either pre-injury or suitable employment.
62 Given the medical and the vocational evidence, in particular the report from Ms Green, and having observed the plaintiff and his disability, I am satisfied the plaintiff cannot return to work. He reported it was difficult living on a disability pension and paying a mortgage. The plaintiff is aged thirty-eight years. He told the Court that he would like to work. I accept that his inability to return to work represents a significant loss to this plaintiff. Given the length of time the injury has persisted and the medical evidence as to permanency, I am satisfied that the plaintiff’s impairment is permanent.
63 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. The plaintiff therefore satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments. No element of the 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.
64 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
65 Given the medical evidence of Dr Sutcliffe and the vocational evidence of Ms Green and Ms Oliver, and that the plaintiff’s injury has continued since 2011, I find the plaintiff is effectively out of the workforce for any suitable employment as a result of the impairment to the right eye and head with a detached retina. Accordingly, there is no need to go into an analysis of wage rates, as I do not accept that he has any residual capacity when the medical restrictions placed on him by the medical witnesses are considered, together with the vocational reports of Ms Green and Ms Oliver, in the context of the real commercial world.
66 I accept that the plaintiff would not be able to complete vocational training. Accordingly I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
67 In view of the matters I have described, the plaintiff has discharged the onus with respect to his impairment of the right eye regarding his loss of earning capacity. In view of my findings in respect 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.
68 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages.
69 Having made these findings, it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for pain and suffering and economic loss consequences as a result of his employment with the first defendant.
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