Latham v Cladding Systems (Aust) Pty Ltd
[2018] VCC 562
•1 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-05680
| COLIN JOHN LATHAM | Plaintiff |
| v | |
| CLADDING SYSTEMS (AUST) PTY LTD & VICTORIAN WORKCOVER AUTHORITY | Defendants |
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JUDGE: | DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 & 7 February 2018 | |
DATE OF JUDGMENT: | 1 May 2018 | |
CASE MAY BE CITED AS: | Latham v Cladding Systems (Aust) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 562 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: Serious injury; pecuniary loss; capacity
Legislation Cited: Accident Compensation Act 1985 section 124AB(38)(f)
Cases Cited: Herald and Weekly Times & Anor v Jessop [2014] VSCA 292
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Mighell QC with Mr G. Coldwell | Slater & Gordon |
| For the Defendant | Ms R. Annesley QC with Mr G. Worth | IDP Lawyers |
HIS HONOUR:
Introduction
1 Colin Latham suffered injury in the course of his employment as a carpenter/labourer on 1 March 2012 when a panel fitted to a machine fell on his foot causing him to twist his back. Mr Latham also suffered injury to his left knee as a result of the same incident.
2 Mr Latham is presently 47 years of age and was employed by Cladding Systems (Aust) Pty Ltd (“the employer”) at the Melbourne Market’s relocation project in Epping at the time of his injury. Although he was working as a construction labourer at the time of his injury, Mr Latham’s background in terms of employment includes clerical work and an extensive period in the hospitality industry. He was also self-employed for a time as a personal trainer. I was told in the opening that Mr Latham had been incarcerated in prison on occasions in the past, the last being in 2008. The reason for the incarceration was not related to dishonesty or fraud-type offending.
3 Leave is sought in the present application to claim damages for pecuniary loss on the basis that the plaintiff has suffered a serious injury as defined by section 134AB(37) of the Accident Compensation Act 1985 (“the Act”).
4 Mr Mighell QC, who appeared with Mr Coldwell on behalf of the plaintiff, indicated at the commencement of the hearing that the plaintiff would rely upon paragraph (a) of the serious injury definition and would rely principally on the back as the body function relevantly loss or impaired. There was also a secondary claim in relation to the left knee. Ultimately the application focused on the consequences of the plaintiff’s back injury.
5 As a consequence of his injury Mr Latham had a variety of conservative treatments and a short period away from work up until June 2012. Thereafter he ceased employment and was referred to a surgeon in late 2012 following an MRI scan of his lumbar spine.
6 He persisted with conservative treatment and attempted to find some light work during 2013 and eventually had further investigations and was referred to another orthopaedic surgeon in late 2013. Following further investigation and at least two epidural injections he underwent surgery at the Epworth Hospital on 8 May 2014.
7 That surgery resulted in some improvement in Mr Latham’s back and leg symptoms, but in 2014 he began to suffer increasing problems with his left knee. He was referred to a further orthopaedic surgeon and underwent arthroscopic surgery in August 2015.
8 As a result of a Medical Panel opinion the defendants raise no dispute as to the issue of causation of the left knee injury.
9 Mr Latham managed to return to the workforce in May 2015, although that was interrupted initially because of the impending knee surgery and subsequently because the warehouse closed. He then obtained similar work through a labour hire agency in April 2016, and further work of a similar nature in January 2018. At the time of his application for leave he was employed on a casual part‑time basis working on average something less than 20 hours per week.
10 The parties were in agreement that if the plaintiff had a capacity for employment of less than 24 hours per week on a permanent basis, he would satisfy the statutory requirement for a grant of leave.
11 Ms Annesley QC, who appeared with Mr Worth on behalf of the defendants, accepted that the plaintiff was entitled to leave in respect of pain and suffering, but disputed leave in respect of pecuniary loss damages. The defendants took issue with the adoption of the plaintiff’s earnings only limited to those with the employer as the basis for the calculation of his “without injury earnings” and further disputed that his actual earnings subsequent to the spinal surgery represented the true extent of his after injury earning capacity.
12 Ms Annesley QC indicated that Mr Latham’s credit was in issue in the present application. She required only Mr Latham for the purposes of cross‑examination.
The lay evidence
13 Mr Latham relied upon three affidavits in support of his application. These were sworn on 25 July 2016, 29 January 2018 and 6 February 2018.[1] He was the only witness to give oral evidence and be cross-examined in this application.
[1]Exhibit A, p36-43K
14 The defendants relied upon an affidavit sworn by Damian Hogan, a director of the employer, on 1 February 2018.[2] Mr Hogan was not required for cross‑examination.
[2]Exhibit 1, p86-88
15 Much of the plaintiff’s first affidavit refers to the circumstances of his injury and the initial treatment. Given the limited issues in dispute before me it is unnecessary to refer to the substance of that affidavit material, save noting that Mr Latham is 47 years of age, was educated until Year 11, and has worked largely in the hospitality industry up until 2011.[3]
[3]Exhibit A, p36-37[1] to [4]
16 Mr Latham then deposed to obtaining work in April 2016 through a labour hire company stating:
“I have been performing work as a machine operator at these two companies (Kraft and Pampa). The availability of work is unpredictable from week to week. I generally get about two shifts of work per week, which is good for my injuries because I can cope with that workload and it gives me plenty of rest time. I do not believe that I could cope with full‑time work on a day to day basis given my ongoing back and knee problems.”[4]
[4]Exhibit A, p41-42[20]
17 Mr Latham’s first affidavit went on to describe his treatment and ongoing symptoms impacting on other aspects of his life.
18 The second affidavit sworn 29 January 2018 described ongoing symptoms and treatment in respect of the back condition. Mr Latham went on to describe his work at that time stating:
“During 2017 I have worked mainly for Murray Goulburn or Bega. I generally am only able to cope with no more than 20 hours per week. These hours are essentially all I can do on an ongoing and reliable fashion. However, I do require medications in order to perform such hours. Having tried various working hours per week, 15 hours per week would be ideal.”[5]
[5]Exhibit A, p43C[10]
19 Mr Latham went on in the affidavit to give examples of working longer hours than referred to and the impact on his back condition.
20 Mr Latham also described difficulty in learning new skills stating:
“The pain is such that I find it hard to concentrate and try to learn new skills so I cannot see myself changing my work situation. Given the extent of my symptoms I believe I am very restricted in the type of work I can perform.”[6]
[6]Exhibit A, p43E[15]
21 The final affidavit sworn by Mr Latham was largely in response to the matters raised on behalf of the defendants by Mr Hogan. In essence Mr Latham deposed to being told that the job with the employer was:
“… a full-time job and that there was plenty of work and that the work would be ongoing. My understanding was that I was employed on a permanent basis.”[7]
[7]Exhibit A, p43F[2] & 43G
22 In that affidavit he exhibited a letter confirming his employment and a pay slip from February 2012. He also deposed to speaking with a fellow employee who had remained in that employment as at 2017.
23 When Mr Latham was cross-examined I noted the following matters as relevant to my determination:
· Mr Latham agreed that his affidavit gave an impression of continuous employment up until moving back to Melbourne in 2011.[8]
[8]Transcript (“T”) 17, Line (“L”) 23 to T 18, L 18
· Between 2002 and 2010, in hospitality, his responsibility included ordering some alcohol, but not food, but rostering and similar matters were the responsibility of his partner who was the actual licensee of the premises. Mr Latham had never applied for a liquor licence.[9]
[9]T 18, L 26 to T 19, L 20
· He had been a qualified personal trainer and trained clients individually or in small groups whilst in Victoria.[10]
[10]T 20, L 11-16
· He had initially done a course to become a personal trainer but had done no refresher courses since 2001.[11]
[11]T 21, L 22-28
· In Tasmania, from 2002, Mr Latham was involved in overseeing the operation of the Victoria Tavern and Heat Nightclub, which involved dealing with matters concerning staffing and management.[12]
[12]T 23, L 1-27
· He described his role as very limited, in an executive role, and not a hands‑on position. He did not use computers, these were done by his partner. He did not pay invoices but was involved in discussions about promotional activities with his managers.[13]
[13]T 24, L 13-30
· Mr Latham agreed that he had been incarcerated in 1992 for six months, 1998 for 12 months, and 2008 for four months. He agreed he had made no mention of incarceration in his affidavits.[14]
[14]T 35, L 30 to T 36, L 28
· He agreed that he had been involved in a legal dispute with the landlord in relation to the Heat Nightclub from about 2006 to 2008. He could not remember working only two nights a week in May 2007 as recorded by his general practitioner.[15]
[15]T 37, L 21 to T 38, L 14
· He agreed he had given evidence to the licensing authorities in Tasmania in November 2006 in relation to his partner’s licence application. He had also accepted that he had given a media interview in August 2007 talking about the nightclub industry and Melbourne’s underworld.[16]
[16]T 39, L 25 to T 40, L 19
· Mr Latham agreed that he had not lodged a tax return in 2009 because he did not draw a wage and the business lost money.[17]
[17]T 41, L 26-31
· In 2010 he did not draw a wage and in 2011 he had claimed some Centrelink benefits. In 2011 he was working doing part-time casual labouring work on various building sites.[18]
[18]T 42, L 1-15
· He was not in regular employment and was earning anything from $180 to $250 per day.[19]
[19]T 43, L 2-5
· Mr Latham agreed he was on Centrelink payments from approximately April 2011 until commencing work with the employer.[20]
[20]T 45, L 21-30
· Mr Latham did not recall that he had told a general practitioner in July 2011 of a number of issues, including back pain. He agreed that he was suffering from some mental health problems at the time.[21]
[21]T 46, L 4-8
· He agreed he had had a knee operation in about October 2011, being an arthroscope, and was off work for about five days.[22]
[22]T 46, L 13-16
· He disagreed with the proposition that he was employed on a short‑term basis to complete cladding work and stated that he was initially employed to do a specific job at Holmesglen TAFE where he took the position of two qualified tradesmen.[23]
[23]T 46, L 28 to T 47, L 4
· He agreed he had no trade qualifications in carpentry, but maintained that he was employed doing a full-time job.[24]
[24]T, 47, L 13-23
· Mr Latham had first worked at the Holmesglen TAFE, then at the Sunshine Hospital and started at the Melbourne Markets in February.[25]
[25]T 48, L 2-23
· Mr Latham did agree that he was in effect filling gaps in the employment force, and if there was suddenly too many men and not enough work he wouldn’t have a job.[26]
[26]T 49, L 5-11
· When further pressed Mr Latham maintained that he had been employed in a permanent full-time position, and did not accept that he had been subject to a three month probationary period.[27]
[27]T 52, L 9-16
· He disagreed that he had ever seen a letter dated 22 November 2011 stating that his employment was subject to a three month trial period.[28]
[28]Exhibit 3 & T 52, L 26 to T 53, L 14
· Mr Latham maintained that the only letter he had received, which was a letter from the employer dated 24 November 2011, which had been mailed to him.[29]
[29]Exhibit A, p43I & T 53, L 22-31
· Mr Latham agreed that he was on Centrelink at the time he was offered this job, but was doing casual work for a bricklayer and needed to give some period of notice. He was not in regular employment before commencing with the employer.[30]
[30]T 55, L 2-26
· As well as doing casual work for the earlier employer, Mr Latham had to obtain various licences prior to commencing the work at Holmesglen:
“That’s what filled in … the two weeks.”[31]
[31]T 57, L 14-20
· When working for the bricklayer he was receiving somewhere around $230 a day which he had mentioned to Centrelink.[32]
[32]T 58, L 11-16
· In the 11 month period prior to commencing with the employer Mr Latham would work one, two or three days a week usually, and might work five days very rarely. On average he was working one to two days per week.[33]
[33]T 59, L 13-31
· Mr Latham agreed that the date of his injury in March 2012 was within three months of commencing employment with the employer, but did not accept that he had no guarantee of employment with the employer.[34]
[34]T 60, L 20-26
· He did not accept that he had only been retained on light duties in April 2012 because he had been injured. He stated that he attempted to return to full-time duties, but, “it would only have been a week, a couple of days.” He ceased working in June 2012. Additionally, he had some time off with family law proceedings which were causing him considerable stress and anxiety throughout 2012 and 2013.[35]
[35]T 62, L 4-21
· He disagreed with the proposition that he didn’t look for any work in 2012 or 2013. He maintained he had applied for a number of jobs with Bunnings, on-line betting agencies and call centres.[36]
[36]T 63, L 16-20
· Following surgery in May 2014 he recalled having a discussion with his surgeon about returning to work, but not specifically about returning to truck driving. He agreed he passed a forklift course and examination.[37]
[37]T 64, L 5-20
· Mr Latham had done a pain management course in July 2014, which was very helpful.[38]
[38]T 65, L 27-31
· Mr Latham agreed that by approximately October 2014 his general practitioner had restricted him to avoid bending, twisting and lifting more than 15 kilograms. That had remained a fairly consistent restriction following that time.[39]
[39]T 66, L 5-12
· With those restrictions he returned to work in about April 2015 working for Metal Products as a forklift/general hand. He believed he worked there from April until about November 2015.[40]
[40]T 66, L 26 to T 67, L 6
· Mr Latham had knee surgery in August 2015.[41]
[41]T 68, L 25-26
· Mr Latham subsequently agreed that he had worked in this role between April 2015 and August 2015 when he had his knee operation, working most weeks 38 to 40 hours, some weeks 24 hours, and some weeks at 16 hours.[42]
[42]T 70, L 4-20
· Following the knee operation he had approximately two months off work and then returned at the beginning of October 2015. He believed he had built up to full-time hours by November.[43]
[43]T 70, L 26-30
· He disagreed that he had ceased that work as the factory closed down, maintaining that he could not manage the full-time hours.[44]
[44]T 71, L 1-3
· Up until August 2015, when he underwent knee surgery, Mr Latham had been working on full-time hours.[45]
[45]T 72, L 29-32
· He was still having difficulty with his left knee when he ceased work with Metal Products in November 2015.[46]
[46]T 74, L 3-10
· He disagreed that he had left employment with Metal Products because of pressure or conflict with his employer, rather than problems with his back or his knee.[47]
[47]T 74, L 19-22
· He continues to have problems with the left knee, “some days are better than others,” but constantly has back pain with flare-ups, “just about every day of the week.”[48]
[48]T 75, L 2-10
· In 2016 Mr Latham obtained employment through a labour hire company with three companies. He agreed that his base rate was roughly $35.80 per hour.[49]
[49]T 76, L 2-31
· In that work in 2016 he would receive higher hourly rates for various types of shifts.[50]
[50]T 77, L 1-11
· Mr Latham agreed that his recorded hours varied between approximately 30 hours per week and three hours per week, but disagreed that this was due to the availability of the work and unrelated to his capacity.[51]
[51]T 77, L 17 to T 78, L 2
· His treating general practitioner, Dr Esfahani, had recommended that he do two to three shifts per week.[52]
· He had continued to do approximately two shifts per week until he broke down in January as he was taking too much medication.[53]
· Mr Latham had not yet returned to work, but believed his back pain had improved following an injection and ongoing medication.[54]
· Mr Latham had some right hip pain whilst working at Pampas in 2016, but believed it had settled down.[55]
· The hip was a problem when Mr Latham worked at Pampas on the factory floor doing eight hour shifts. It was not as bad while doing forklift driving.[56]
· He agreed he had completed a CV with a consultant in 2014, but disagreed as to the accuracy of some of the work he had previously done, such as “managing accounts and invoices, banking.”[57]
· When involved in business as the owner of a restaurant his partner worked hands-on five days a week:
“… for me it was purely an investment, I know nothing about restaurants.”[58]
[52]T 78, L 13-28
[53]T 79, L 19 to T 80, L 17
[54]T 81, L 8-31
[55]T 84, L 1-17
[56]T 86, L 18-25
[57]T 87, L 3-15
[58]T 87, L 23-31
24 When re-examined I noted the following matters as relevant to my determination:
· After working a number of hours in April 2016 Mr Latham had returned to see Mr Johnson because his back pain was “through the roof, and I wasn’t coping.”[59]
· In January 2018 Mr Latham’s general practitioner prescribed new medication for him, after he had worked some weeks for more than 20 hours prior to Christmas.[60]
· Flare-ups in back pain were triggered by:
“Any repetitive twisting or bending – that’ll – that’ll do it for sure. But even the slightest bending – reaching to a certain – to a side, reaching down low, picking up the washing basket. It can happen any time.”[61]
· Mr Latham believed in the last 12 months his back condition had become worse.[62]
[59]T 89, L 26 to T 90, L 3
[60]T 90, L 12-24
[61]T 91, L 6-12
[62]T 91, L 20-23
25 The defendant’s lay evidence was set out in an affidavit from Damian Hogan, sworn 1 February 2018.[63] Mr Hogan was not required for cross-examination.
[63]Exhibit 3, p86-88
26 The substance of this affidavit concerns the basis upon which the plaintiff was employed with Mr Hogan stating that Mr Latham was employed on a full‑time casual basis, but;
“… there was no guarantee at the time of his employment that he would continue to be employed by Cladding Systems after the Melbourne Market project was completed.”[64]
[64]Exhibit 3, p86-87[3]
27 Other matters deposed to by Mr Hogan concerned the extent of Mr Latham’s injury and his ability and/or motivation to return to employment with Cladding Systems.
28 Notwithstanding Mr Hogan was not required for cross-examination, I do note the reference to the two letters concerning the commencement of the plaintiff’s employment dated 22 November 2011[65] and 24 November 2011.[66] The apparent contradiction between these two letters in terms of the nature of Mr Latham’s employment was ultimately irrelevant to my determination.
[65]Exhibit 3
[66]Exhibit A, p43I
The medical evidence
29 Mr Mighell QC, who appeared with Mr Coldwell on behalf of the plaintiff, tendered into evidence four reports from the treating general practitioner, Dr Esfahani. The first of these brief reports was dated 24 May 2016.[67] There were two almost identical reports sent on 8 January 2018.[68] Finally, a brief letter was sent to the plaintiff’s solicitor on 10 January 2018.[69]
[67]Exhibit A, p59
[68]Exhibit A, p60 & 61
[69]Exhibit A, p62
30 The substance of Dr Esfahani’s reportage was that the plaintiff had undergone surgery on both the lower back and left knee and was continuing with treatment and limited in his activities in January 2018. Dr Esfahani commented that the plaintiff had a capacity for suitable employment “for both injuries.”[70] He also expressed a view that the suitable employment would be up to a maximum of 20 hours per week.[71] He did not distinguish between impairment or incapacity being linked specifically to either injury, although in his initial report he had commented:
“Colin has gone back to work and his left knee has been fine but gets sore low back from time to time and still needs to take NSAID and Analgesia on & off as well as Endep at night time.”[72]
[70]Exhibit A, p61
[71]Exhibit A, p62
[72]Exhibit A, p59
31 Mr Mighell QC also tendered a detailed report from the treating surgeon, Mr Michael Johnson, who had operated on the plaintiff’s spine on 8 May 2014.[73] In the report dated 30 January 2018 Mr Johnson sets out a history of his consultations and treatment given to Mr Latham since November 2013. Significantly Mr Johnson initially saw Mr Latham on at least three occasions up until 5 November 2014 following the spinal surgery that he had performed in May of that year. He noted in relation to the back at that stage:
“He told me that from the point of view of his back he was managing reasonably well although he did experience some intermittent discomfort.”[74]
[73]Exhibit A, p79A-E
[74]Exhibit A, p79D
32 Mr Johnson also noted a complaint relating to the left knee on that occasion and suggested he should consult a knee surgeon in relation to that particular issue. He did not see Mr Latham again until 18 May 2017. At that time he noted:
“He had been working as a part-time contract labourer and he struggled if he worked full time or had to do duties that involved repetitive bending and lifting.”[75]
[75]Exhibit A, p79D
33 He believed his condition was worsening and Mr Johnson arranged for up‑to‑date x-rays and an epidural injection.
34 He continued to review Mr Latham up until most recently on 25 January 2018 and noted ongoing problems with the back and also discomfort in the right hip.
35 Mr Johnson noted that ongoing treatment would probably be of a conservative nature, but noted:
“… if he continues to be significantly disabled there may be a place for further surgery involving a lumbar sacral fusion.”[76]
[76]Exhibit A, p79E
36 He commented in relation to work capacity:
“Without surgery I suspect he will be incapable of performing work of a heavy physical nature although he may be able to cope with work of a lighter nature.
I suspect his problem will persist indefinitely.”[77]
[77]Exhibit A, p79E
37 Mr Mighell QC tendered medico-legal opinions from Mr Mohammed Awad, neurosurgeon and spinal surgeon and Dr Joseph Slesenger, specialist occupational physician.
38 Mr Awad examined Mr Latham on 27 October 2017 and reported to the plaintiff’s solicitors on the same day.[78] Mr Awad noted the plaintiff’s ongoing symptoms as constant low back pain varying between three to four out of ten and flaring up to levels of eight out of ten. He noted a maximum sitting time of around 30 minutes, but no significant restriction either in sleeping or walking. Mr Awad noted the conservative treatment involving hydrotherapy, massage, analgesia and various exercises. He diagnosed Mr Latham as suffering from “acute aggravation of lumbar spondylosis causing disc prolapse.”[79]
[78]Exhibit A, p91-94
[79]Exhibit A, p93
39 Mr Awad expressed an opinion as to employment capacity stating:
“He definitely has the capacity to perform suitable employment as he is doing at the moment. He would not however be able to perform full time work regularly and consistently although this may change as time goes on. In his current state he is probably likely to be reliable in working on a casual and part-time basis which he is doing. I would state that he is not capable of being a truck driver as this required long periods of sitting and if he has to, stop every half an hour or so to get out of the truck.”[80]
[80]Exhibit A, p93
40 He went on further to state in relation to other occupations (which were not described in his report) that Mr Latham would require periods of break between sitting and standing on a regular basis and any occupation that he does embark upon would:
“… require in the first instance not working more than two to three days per week for a maximum of four to five hours per day. He should build on this slowly to see if indeed he can perform reliability and consistently.”[81]
[81]Exhibit A, p93-94
41 Finally Mr Awad also considered that Mr Latham may require a spinal fusion in the future. He was otherwise guarded about the prognosis.
42 Dr Slesenger examined Mr Latham on 26 October 2017 and reported to the plaintiff’s solicitors on the following day.[82] Dr Slesenger noted Mr Latham’s symptoms in relation to the back at that time as follows:
“He has ongoing moderate to severe pain in his lower back. The pain is variable. The pain is dull and sharp in character.
The right leg pain is less intense, but is associated with numbness around his right foot and weakness in the right leg. He advised that the symptoms are aggravated by activity, particularly standing in one position for prolonged periods and driving for more than 20-30 minutes. He can walk for up to 2 hours.”[83]
[82]Exhibit A, p95-113
[83]Exhibit A, p98
43 Dr Slesenger also noted pain in the left knee and the treatment involving arthroscopic repair given by Mr Andrew McQueen in August 2015. In relation to this condition Dr Slesenger noted:
“He advised that the surgery was successful in relieving some of his symptoms; however, he has been left with residual left knee pain, stiffness, occasional swelling, but no locking. He advised of general weakness in the left leg. No further treatment is being considered at this stage.”[84]
[84]Exhibit A, p99
44 Dr Slesenger also noted a history of Mr Latham returning to work in April 2016 noting that he was performing warehousing, forklift driving and some factory hand work at that time. He also noted:
“He has been working on a casual basis, working between 10 and 35 hours per week (but generally working around 10-15 hours per week). He advised that he is struggling to perform these tasks, as the job tasks will require repetitive bending and twisting and lifting of weights of up to 25 kg (however, the majority of the weights are light).”[85]
[85]Exhibit A, p100
45 Dr Slesenger set out in some detail the results of his own examination findings and his review of other medical opinions which had been provided to him. He diagnosed Mr Latham’s back injury as follows:
“· Soft tissue injury.
· Aggravation of degenerative disease of the lumbar spine, for which Mr Latham has undergone surgery in the form of L5/S1 discectomy.
· Chronic lower back pain with right radicular features (but no evidence of radiculopathy).”[86]
[86]Exhibit A, p106
46 He also noted, in relation to the left knee:
“· Aggravation of pre-existing degeneration of the left knee, requiring arthroscopic repair in the form of arthroscopic chondroplasty, open patella stabilisation and removal of loose bodies.
· Residual left knee dysfunction.”[87]
[87]Exhibit A, p106
47 Dr Slesenger also noted a resolved soft tissue injury to the left foot, ongoing right hip impairment, which was still being investigated, and a psychological condition which was outside his area of expertise. He also noted treatment at that stage which was similar to that noted by Mr Awad.
48 Dr Slesenger had been asked to comment on Mr Latham’s work capacity in relation to his back injury excluding any psychological or psychiatric condition. He stated:
“With regard to Mr Latham’s lumbar spinal impairment alone … I am of the opinion he has capacity to work with restrictions as outlined above and could return to work, working 4 hours a day, 3 days per week.
I note that he is currently working longer hours; however, is struggling to cope with his current symptoms and functional limitations and I am of the opinion that based on the lumbar spinal impairment alone, his current work activity is probably not sustainable.”[88]
[88]Exhibit A, p109
49 Dr Slesenger then went on to consider particular employment options that had been outlined in a vocational assessment performed in April 2014. I note this assessment took place prior to the spinal surgery in May 2014. The opinion given by Dr Slesenger some three years later is of little relevance.
50 For completeness I should state that Dr Slesenger made reference to the uncertain nature of Mr Latham’s right hip condition and also raised issues concerning the actual nature of the duties involved in those particular employment tasks.
51 The final tranche of medical material relied upon by the plaintiff were the clinical records of Dr Esfahani which were tendered in evidence.[89] Extracts from these records were referred to in final submissions and I will make reference to them where necessary later in these reasons.
[89]Exhibit B
52 Ms Annesley QC, who appeared with Mr Worth, on behalf of the defendants, tendered in evidence a report from Mr Johnson dated 9 August 2014.[90] She also tendered a medico-legal report from Mr Russell Miller, orthopaedic surgeon, dated 25 September 2017.[91] Finally, Ms Annesley QC tendered a report from Dr Peter Boys dated 19 November 2014.[92] Dr Boys was the only orthopaedic surgeon to examine Mr Latham subsequent to his spinal surgery.
[90]Exhibit A, p73
[91]Exhibit A, p84-90
[92]Exhibit 3, p48-57
53 Ms Annesley QC also tendered and NES vocational assessment report dated 25 January 2013.[93]
[93]Exhibit 3, p70-76
54 Mr Miller examined the plaintiff on 18 September 2017 at the request of his solicitors. He reported on 25 September 2017 setting out a detailed recording of the history of injury, both to the back and the knee, and recording examination findings. He expressed an opinion that the prognosis was only fair in relation to both the lumbar spine and the left knee, further commenting that the current clinical status is, “satisfactorily explained by defined organic disease,”[94]
[94]Exhibit A, p88
55 He set out restrictions on the plaintiff’s working capacity separately in relation to both the lumbar spine and the left knee. In relation to the lumbar spine he stated:
“His restrictions for the lumbar spine will include no repetitive bending, no repetitive lifting, no lifting of weights of more than 5kg, and will have a requirement to shift his posture on a regular basis.”[95]
[95]Exhibit A, p89
56 He did not set any limitation on the number of hours to be worked by Mr Latham.
57 Dr Boys had examined Mr Latham on 13 November 2014 and provided a report to the insurer on 19 November 2014.[96] Dr Boys noted Mr Latham’s description of “excellent relief of right sciatica following surgery.” He also noted a rehabilitation program up until September 2014 and rehabilitation enabling Mr Latham to complete a forklift driver’s course.[97]
[96]Exhibit 3, p48-57
[97]Exhibit 3, p50-51
58 At the time of his report Dr Boys expressed the opinion that Mr Latham has had described, “well preserved functional capacities.”[98] He also noted that notwithstanding some discomfort, Mr Latham was seeking employment as a forklift driver and believed he “would be able to maintain full time employment with appropriate postural changes in the course of his working day to relieve lower back strain symptoms.”[99]
[98]Exhibit 3, p54
[99]Exhibit 3, p54
59 The vocational assessment prepared by nabenet on 25 January 2013 identified employment options at that stage as follows:
“1. Hire Controller
2. Fitness Centre manager
3. Restaurant Manager
4. Maintenance Coordinator.”[100]
[100]Exhibit 3, p70
60 Suitability for these positions was raised during Mr Latham’s cross‑examination. Nevertheless they were recommendations made several months prior to Mr Latham’s spinal surgery and are now more than five years old. They are therefore of very little value to my assessment of the present application.
Analysis
61 In final address Ms Annesley QC essentially submitted that the plaintiff’s earnings with the employer did not fairly reflect his pre-injury capacity, but rather represented “a windfall for the plaintiff”.[101] She further submitted that the work with the employer was on a full-time casual basis for a particular project and that Mr Latham would not have been retained after that work had been completed. This was consistent with the evidence in Mr Hogan’s affidavit, noting that Mr Hogan had not been cross-examined.
[101]T 102, L 16-19
62 Taking into account periods of unemployment, and the declared earnings in the 2011 and 2012 financial years, the appropriate without earning figure for the plaintiff was $1,295. In order to succeed in his application he would need to show that his capacity was permanently restricted to the extent that he could not earn $777 which was 60 per cent of that amount.
63 Ms Annesley QC then referred to Dr Esfahani’s report dated 8 January 2018 which did not limit the plaintiff’s hours in any way. This was contrasted with the statement made in his report of 10 January 2018 limiting the plaintiff’s hours to a maximum of 20 per week. Ms Annesley QC submitted that this change in opinion from the treating general practitioner was unexplained and should not be relied upon.[102] She further submitted that the report provided by the treating spinal surgeon, Mr Johnson, was equivocal and did not assist in relation to the restrictions placed upon Mr Latham.
[102]T 108, L 4 to T 109 L 8
64 Ms Annesley QC referred to the evidence of the other medico-legal examiners in support of the proposition that there was little support for any limitation of hours of employment as opposed to general limitations as to the nature of duties the plaintiff could perform. She concluded the submissions with a reference to the hourly rates that were agreed for both a labourer and a carpenter arguing that Mr Latham could work on a full-time basis and earn between $1,450 and $1,500 per week.
65 Mr Mighell QC referred me to the authority in Herald and Weekly Times & Anor v Jessop[103] in support of the proposition that the availability of work with the employer in the future was not central to the assessment of the plaintiff’s earning capacity for the purpose of section 134AB(38)(f)(ii).
[103][2014] VSCA 292
66 Mr Mighell QC also submitted that caution should be taken in relying simply on the figures set out in the plaintiff’s taxation returns when it was noted in the 2012 financial year that he had ceased work on 20 June 2012, but it was unclear as to whether the figures in that year’s tax return included holiday pay, sick pay or workers compensation payments which had been made after the date of injury.
67 Mr Mighell QC submitted that the actual earnings by the plaintiff, as set out in his claim for compensation, modified to take into account an EBA increase and a weekly shift allowance, would provide a fair measure of Mr Latham’s without injury earnings. As an alternative to the figure in the claim form, Mr Mighell QC submitted that the plaintiff’s last actual pay in the employment could also form the basis of assessment. I note that the figure based on the claim form would be $1,777 whereas the figure based on the last pay received by the plaintiff from the employer would be $2,108.
68 If the higher figure were accepted as the appropriate without injury earnings, then the 60 per cent mandated by the statute would be $1,264. If the lower figure were used, then the 60 per cent figure would be $1,066.
69 Mr Mighell QC’s submission continued noting that the actual pay records in 2016 and 2017 showed a maximum of $1,014 in the pay period ending 20 September 2016 based upon the plaintiff working no more than 20 hours. In that pay period he had in fact worked 19.6 hours. The submission continued pointing out all other occasions when the plaintiff had worked 20 hours per week he had earned usually less than $800 gross per week.
70 The final thrust of the plaintiff’s submissions was based upon the court being satisfied that he had a permanently restricted after injury capacity for employment of less than 20 hours. An outline of the plaintiff’s submissions pressed for a finding that the capacity was limited to approximately 17.5 hours. However, even if it was found to be 20 hours, it would equate to an earning capacity of less than $1,000 gross per week.
71 Underpinning this submission was a reference to the evidence of the plaintiff and the records of both Dr Esfahani and Mr Johnson to show that the plaintiff’s condition had actually deteriorated in the year preceding this application, which was consistent with a finding that he was in fact working at or above his post injury retained capacity.
72 Mr Mighell QC made reference to the fact that there had been no challenge to the plaintiff’s credibility by way of any video surveillance, nor was there any suggestion by any of the medical practitioners that the plaintiff was attempting to exaggerate or embellish the consequences of his injuries in a clinical setting.
73 I accept the plaintiff as a frank and reliable witness, particularly taking into account his returns to employment following both the spinal surgery and the knee surgery. It was clear from the matters raised in cross-examination that he has had difficulties in the past, including periods of incarceration. Nevertheless he impressed me as a person who has genuinely attempted to maximise his employment capacity, particularly in the attempts he has made since 2016 to remain in the workforce.
74 An assessment of retained capacity as required by the Act clearly does not depend on the availability of suitable employment. Nevertheless, the actual history of the plaintiff’s employment over approximately a two year period, as in this case, must be carefully considered by a court together with the actual medical evidence and any opinions expressed by the medical practitioners concerning limitations of hours or activities.
75 I accept the submission made by Ms Annesley QC that there is little justification on the face of it for the apparent change in the opinion given by the treating general practitioner in January of this year where he has made no mention of limited hours in one report, and then without apparent basis, referred to a limitation of not more than 20 hours in the subsequent report.
76 Any finding as to the limitation of the plaintiff’s working hours must be based upon the whole of the relevant evidence adduced in a proceeding. I have had the opportunity to review the actual records tendered into evidence on behalf of the defendant showing a record of the plaintiff’s earnings and hours from 1 October 2015 to 6 January 2018.[104] From those figures it can be seen that for the majority of those pay periods the plaintiff did work for less than 20 hours.[105]
[104]Exhibit 3, p91-95
[105]From the records between 1/10/15 and 1/9/17 the plaintiff worked 20 hours or more in 31 of 66 recorded pay weeks. In the records for the pay periods 26/6/17 to 6/1/18 the plaintiff worked 20 hours or more in 12 of 22 weeks.
77 I accept the plaintiff’s evidence to the effect that his condition has worsened as the necessities of actual employment have required him, not only to perform duties which are unsuitable, but to work in excess of hours which his current spinal condition would reasonably permit him to perform on a regular basis.
78 I have also taken into account the pre-tax earnings that are recorded in the records to which I have been referred. Whilst there are significant anomalies no doubt reflecting penalty rates or similar entitlements, I am comfortably satisfied that the plaintiff would not have a capacity to earn more than $1,000 per week based upon a capacity limited to not more than 20 hours. Indeed the hourly earning rates referred to by both counsel in their final addresses showed base figures in the order of $35 to $40. The claim form at the time of the injury showed figures of slightly less than $34 per hour.
79 The statutory comparison required for leave to be granted necessitates a calculation of the present after injury earnings with the without injury earnings as found within the period of three years pre and post the date of injury as most suitably reflects the plaintiff’s without injury earning capacity.
80 I am satisfied that the figure set out in the claim form does fairly reflect the plaintiff’s pre-injury earnings as at the date of injury. Added to this must be a shift allowance and relevant EBA increases as set out in Exhibit C. Accepting the method used by Mr Mighell QC to calculate these amounts, I fix a figure of $1,777 as the plaintiff’s without injury earnings. Sixty per cent of that figure is $1,066. I see no reason to conclude that the earnings actually received from the employer should be regarded as a windfall.
81 I am further satisfied that the plaintiff is currently, and has been for the period set out in the records to which I was referred, working at least to the level of his post-injury work capacity. Indeed as I have previously stated, the occasions where he has worked in excess of 20 hours per week, particularly in consecutive periods, have resulted in deteriorations of his spinal condition. I have therefore determined that he is limited to no more than 20 hours per week. Accepting the parties agreed figure of the plaintiff’s hourly entitlement as at March 2015, he would have earned $39.31 per hour. The parties were in agreement as to the operation of this enterprise bargaining agreement.
82
I therefore find that the plaintiff’s after injury capacity is permanently reduced to somewhere in the order of $800 gross per week and certainly well below the statutory threshold which would preclude a grant of leave being given.
Conclusion
83 I am satisfied that the plaintiff is entitled to leave in respect of pecuniary loss. I propose to make orders accordingly.
84 I will hear the parties in relation to the formal orders required and any questions of costs.
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