Lebehen v Victorian WorkCover Authority
[2015] VCC 1841
•17 December 2015
| IN THE COUNTY COURT OF VICTORIA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05442
| TROY JAMES LEBEHEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 9 and 10 December 2015 | |
DATE OF JUDGMENT: | 17 December 2015 | |
CASE MAY BE CITED AS: | Lebehen v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1841 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – loss of earning capacity consequences of an injury to the hand – whether the plaintiff has established a loss of earning capacity of 40 per cent or more
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; State of New South Wales v Moss [2000] NSWCA 133; Ammerlaan v DC Roof Tiling Pty Ltd and Victorian WorkCover Authority [2015] VCC 1421
Judgment: Leave to the plaintiff to commence proceedings claiming damages for pain and suffering and loss of earning capacity in respect of injuries suffered by him in the course of employment on or about 26 May 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Forbes QC with Mr M Belmar | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr A Moulds QC with Mr A Saunders and Mr N Dunstan | IDP Lawyers Pty Ltd |
HIS HONOUR:
1 Troy Lebehen suffered an injury to his right hand in the course of his employment on or about 26 May 2009. He seeks the leave of this Court to issue proceedings to recover pain and suffering and loss of earning capacity damages in respect of that injury.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a) of the Act
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is that of Mr Lebehen’s right hand, his dominant hand.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622 at paragraph 18
6 The impairment or loss of a body function shall not be held to be “serious” for the purposes of this application unless the pain and suffering consequences or the loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked, and as being at least very considerable.[3]
[3]Section 134AB(38)(b) and (c) of the Act
7 In this matter, the defendant concedes that the pain and suffering consequences of Mr Lebehen’s injury are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being “more than significant or marked and as being at least very considerable”.
8 The dispute between the parties concerns the loss of earning capacity consequences of Mr Lebehen’s injury. Leave is not to be granted by the Court to bring a proceeding claiming loss of earning capacity damages unless Mr Lebehen establishes that, in addition to the requirement described in ss(38)(c) of the Act, at the date of the hearing of this application he has suffered a loss of earning capacity of 40 per cent or more calculated in accordance with ss(38)(e). It is this issue that falls to be determined by the Court.
Background
9 Mr Lebehen is currently twenty-five-years old. He was aged twenty at the time of his accident. He was brought up and educated near Bacchus Marsh. He left school after Year 10. Initially, he worked with a panel beater and later, doing landscaping work.
10 In 2007, he commenced an apprenticeship as a roof tiler. By May 2009, he had completed all of the school-based units of his apprenticeship and there were approximately eight months’ practical work remaining before he completed that apprenticeship.
11 Mr Lebehen had intended to remain in employment as a roof tiler and later, intended to commence his own roof tiling business.
The accident
12 On or about 26 May 2009, Mr Lebehen slipped whilst on the roof of a house. As he fell, he grabbed hold of some steel framing and suffered a significant cut across the base of his right middle finger.
13 It was not in dispute that, in the accident, he suffered a laceration of his right middle finger, with a 100 per cent division of the flexor digitorum profundus tendon and almost complete division of the flexor digitorum superficialis tendon. This was complicated by rupture of the primary repair and rupture of the tendon graft. It was further complicated by the development of bow stringing following a second tendon grafting procedure requiring pulley reconstruction.
Post-accident
14 Following the accident, Mr Lebehen was taken to the Bacchus Marsh Hospital and was then transferred to the Western Hospital in Sunshine.
15 He underwent the first of a number of surgical procedures that day in an attempt to repair the damaged tendons.
16 Soon after, he was referred to Mr Mark Baldwin, plastic surgeon.
17 In all, Mr Lebehen has undergone some eight surgical procedures:
(a) 26 May 2009 at the Western Hospital – repair of tendon;
(b) January 2010 – repair of further rupture of the tendon involving a two-stage grafting procedure, the second stage of which was completed by Mr Baldwin in May 2010;
(c) February 2011 – reconstruction of the tendon by Mr Baldwin;
(d) February 2011 – further surgery on the tendon following a further rupture;
(e) May 2011 – further surgery to counter infection of sutures;
(f) October 2011 – a further reconstruction of the tendon by Mr Baldwin;
(g) November 2011 – grafting a tendon from his left leg and using it to reconstruct the tendon in his right middle finger.
18 These surgical procedures are described in appropriate detail by Mr Baldwin in his reports of 8 November 2011 and 13 March 2013. I note Mr Baldwin’s comment in the earlier of those reports that:
“Ordinarily, an injury like his initial injury would have resulted in minimal long term sequelae, but in his case, it’s more or less crippled his hand.”
19 He has had a good deal of hand therapy since the accident.
Consequences of injury
20 The defendant has conceded that the pain and suffering consequences of injury are such as to satisfy the provisions of s134AB(38)(c) of the Act. Nevertheless, it is appropriate that I summarise these briefly.
21 I consider that as a consequence of the injury:
(a) Mr Lebehan has lost the ability to work in his chosen trade, a trade I consider he was likely to have enjoyed as an employee and one in which he might have continued on a self-employed basis. The range of jobs open to him is, on any view, greatly reduced;
(b) His right middle finger is fixed in a bent position and is virtually immovable;
(c) He suffers pain in his hand daily. The pain is worse in cold weather;
(d) His grip power is much reduced;
(e) He is unable to handle fine or small objects with his dominant right hand;
(f) He is unable to lift objects of any significant weight with his right hand;
(g) He regularly gets painful blisters and calluses around the base of the middle finger;
(h) He is unable to make a fist with his right hand;
(i) He is restricted in the way he can ride a motorbike. He cannot handle the vibrations associated with rough terrain;
(j) He has difficulty holding cutlery with his right hand;
(k) He has difficulty holding or carrying large objects even if they are not heavy;
(l) He cannot mark or properly hold a football;
(m) He is limited in the activities he can do at a gymnasium;
(n) He has difficulty performing a range of household tasks including food preparation, opening jars, turning taps off and on, and the like;
(o) His sleep is disturbed by pain;
(p) He suffers pain if he uses his right hand to drive a motor vehicle for a substantial time. Handling a steering wheel causes development of calluses on his right middle finger, palm and the underside of his wrist. If he was required to travel to Melbourne from his home near Ballarat, he would generally only be able to drive one way. His hand and wrist become stiff and sore. His girlfriend will drive home.
Loss of earning capacity
22 It was common ground that Mr Lebehen had no capacity to return to his pre-injury employment as a roof tiler nor to any occupation involving the regular use of his right hand.
23 However, the defendant submitted that there were occupations which were suitable for him that did not involve such use of his right hand.
24 In order that leave be granted to Mr Lebehen to commence a proceeding claiming damages for loss of earning capacity, I must be satisfied that, in addition to the requirement set out in ss(38)(c), he has suffered a loss of earning capacity of 40 per cent or more as required by ss(38)(e).
25 Generally, in an application under s134AB(16), such loss of earning capacity is measured by reference to ss (38)(f).[4]
[4]See s134AB(38)(e)(i) of the Act
26 However, at the time of the accident, Mr Lebehen was under the age of 26. As a consequence, ss(38)(f) has no application.
27 The Act provides little guidance as to how the loss of earning capacity is to be calculated or measured save for the direction contained in ss(38)(e)(ii) which requires a worker under the age of 26 years at the date of the injury to establish:
(a) that he has suffered a loss of earning capacity of 40 per cent or more; and
(b) that he will, after the date of the decision, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
28 Senior counsel for the defendant conceded that ss(38)(g) had no application in the circumstances of this case.
29 It was common ground between the parties that a loss of earning capacity was not the same as loss of earnings.[5] It was conceded that a person might suffer a loss of earning capacity without necessarily suffering any loss of earnings or income at all. However, in an application such as this, such loss must also be productive of “permanent financial loss” of 40 per cent or more.
[5]State of New South Wales v Moss [2000] NSWCA 133
30 In Ammerlaan v DC Roof Tiling Pty Ltd and Victorian WorkCover Authority,[6] the plaintiff (aged under 26 at the time of injury) had returned to work and was earning more than 60 per cent of the earnings of a roof-tiler of twenty years’ experience. The defendant there submitted that the plaintiff had not established a 40 per cent loss of earning capacity. Judge Dyer however, was satisfied that the plaintiff’s injury had destroyed his capacity to work in his chosen field and had impacted to a very considerable extent on his present and future earning capacity. He said that a precise monetary comparison, based upon actual earnings, is not required by the statute. Applying his judgement, and making an assessment as best he could, he found that the plaintiff was then suffering a present loss of earning capacity in excess of 40 per cent of his pre-injury capacity for earning.[7] As I understand his Honour’s reasoning, notwithstanding that the plaintiff was currently not suffering a financial loss of 40 per cent, he had suffered a loss of earning capacity which was more than 40 per cent.
[6][2015] VCC 1421
[7]Ammerlaan (supra) at paragraphs 38 and 39
31 Notwithstanding, I consider that the words in ss(38)(e)(ii) direct that there must be –
· a loss of earning capacity productive of financial loss of 40 per cent or more; and
· that loss must continue permanently.
32 Senior Counsel for the plaintiff submitted that the Court should look at the plaintiff’s probable financial loss over the whole of his working life – that is, from the date of his injury.
33 She submitted that:
· At the date of the injury, the plaintiff was aged 19 years;
· At that time, he therefore had an anticipated working life of about 46 years (to age 65);
· In the 6.5 years since the injury he has had no capacity for employment and has, in that period suffered a total or 100 per cent loss of earning capacity.
· 6.5 years is, in round figures, about 15 per cent of his anticipated working life.
· He has therefore already lost approximately 15 per cent of his earning capacity as at the date of the decision.
· He only had to establish a further loss of some 25 per cent of his earning capacity to establish a loss of earning capacity productive of a financial loss of 40 per cent.
34 The reference to and reliance on the 6.5-year period between the injury and the hearing date is, I consider, misconceived. The requirement in ss(38)(e)(i) is that the plaintiff must establish a loss of earning capacity of 40 per cent or more at the date of the decision. Ss(38)(e)(ii) requires the plaintiff to establish that, after the date of the decision, he will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
35 A loss of earning capacity prior to the date of the decision appears to have no relevance.
36 In the present case, Mr Lebehen is not working and has not worked since the accident save for a short unsuccessful attempt to return to work.
37 The defendant alleges that he is fit to work in three specific jobs:
· motor rental salesperson
· motor vehicle parts interpreter; and
· forklift driver.
38 The duties associated with those positions are described in a report of an entity known as “Recovre” dated 5 August 2015 tendered by the defendant. The authors of that report are Robyn Willett (described as “an employment placement consultant”) and Janette Ash (described as “an injury management consultant/occupational therapist”). Their formal qualifications are unknown although, somewhat intriguingly, it is said in their report that they hold “suitable qualifications and experience to undertake the requested assignment”. In any event, the plaintiff did not dispute the qualifications of the authors or the admissibility of the report.
39 In the report, it is said that Mr Lebehen, based upon his education, work history, transferrable skills and medical opinions, retains a capacity for suitable employment.
40 The nature of the duties associated with each of the three suggested jobs are set out in the report. I shall deal with each of them.
Rental sales person (car hire)
(a) This position is said to involve frequent to constant repetitive hand and finger movements to operate electronic tills, cash handling and operation of a computer. The job is said to involve necessary mental skills, writing skills, numerical skills, analysis, sales and customer service skills.[8]
[8]Defendant’s Court Book (“DCB”) 120
(b) I consider that the requirement for constant or frequent hand and finger movements alone is likely to render the job unsuitable for him.
(c) The report states that –
“Mr Lebehen reports to possess a good level of English literacy and ‘OK’ numeracy skills … [he] reports to have a good basic understanding of computer functions ….”
I had the opportunity of watching Mr Lebehen give his oral evidence. My opinion is that he displayed the characteristics of a poorly educated person with few, if any, communication skills. Dr Bloom said he appeared to be a relatively poor communicator.[9] It is not apparent to me how he could possibly be described as having any customer service skills, or analysis or service skills. Mr Lebehen’s own report that he had good English literacy skills is hardly to be relied upon. The authors themselves express no view as to his literacy skills.
[9]DCB 62
(d) He described his writing skills as poor. Given that his formal schooling ended at Year 10 (and arguably after Year 9), his numerical and cash handling skills are likely to be poor.
(e) He has no computer skills. Neither he nor his family own a computer.
(f) It is difficult to see how anyone could have considered that he was suitable for such a position.
Motor vehicle parts interpreter
(a) This position is said in the report to involve dealing with customers, repetitive hand and finger movements to operate electronic tills and computers, driving for vehicle deliveries and the moving of vehicles in the yard and test drives, preparing contracts of sale, searching lists of parts to identify part numbers, price and availability, and mental skills, including communication, memory, recording and calculating.[10]
(b) Again, it is difficult to see how anyone would suggest that this occupation was suitable for the plaintiff given his limited education, his lack of communication skills and lack of numerical or computer skills.
[10]DCB 124
Forklift driver
(a) The report states that he would be required to lift objects of up to 9.1 kilograms and frequently to carry/lift objects weighing up to 4.5 kilograms.
(b) It was not disputed that he would have to operate, with his right hand, controls of the forklift tynes (up, down, left, right, move in or out, or tilt left or right). I consider that, in order to do so safely and on a full-time basis, he would need a pain-free and dextrous right hand.
(c) Dr Bloom described Mr Lebehen’s right hand as dysfunctional due to loss of movements of the finger and specifically, the third metacarpophalangeal and the two interphalangeal joints. He described him as having a “very severe dysfunction of the third digit”.[11]
[11]DCB 63-4
(d) I accept that the finger is permanently bent and regularly gets in the way. Dr Bloom states that the right-hand control levers of a forklift are generally light and do not involve heavy gripping. I accept that is so. However, those movements would obviously have to be careful and precise movements. An accidental knock of such controls would be likely to move the tynes of the forklift in one direction or another with potentially disastrous repercussions.
(e) The suggestion that Mr Lebehen has transferable skills consisting of customer service skills, good communication skills or manual dexterity[12] is unsupported by the evidence and by my own observations of him. Those comments appear quite inconsistent with those of Dr Bloom in his report of 7 September 2015.[13]
[12]DCB 115
[13]DCB 64
41 For the reasons expressed above, I reject the opinions of Mr Ireland and Dr Bloom that any of the positions described by Recovre are suitable for Mr Lebehen now or in the foreseeable future.
Conclusion
42 Taking all of the evidence into account, I do not consider that any of the three employment positions submitted by the defendant are suitable employment for Mr Lebehen.
43 There is no suggestion in the evidence that his right hand/finger/wrist condition is likely to improve in the foreseeable future in the absence of an amputation of his right middle finger. He does not want to go down that path. In view of what happened with previous surgical procedures, I am not surprised by that reluctance and do not consider it unreasonable. His reticence is not only understandable but probably justified.
44 For the reasons expressed above, I am satisfied that the pain and suffering consequences of Mr Lebehen’s injury can fairly be described as more than significant or marked and as being at least very considerable.
45 With regard to loss of earnings consequences of his injury, I am satisfied that he has satisfied the requirements of ss(38)(c) and that he has suffered a 40 per cent loss of earning capacity when calculated in accordance with s134AB(38)(e). I am satisfied that such incapacity is permanent, in the sense that it is likely to continue in the foreseeable future.
46 Even if ss(38)(f) had been applicable, I would have been satisfied that a loss of 40 per cent or more had been suffered when measured in accordance with that sub-section.
47 Accordingly, there will be leave to Mr Lebehen, pursuant to s134AB(16)(b) of the Act, to commence proceedings claiming pain and suffering damages and loss of earning capacity damages in respect of injuries suffered by him in the course of employment on or about 26 May 2009.I shall hear the parties with regard to costs and any other ancillary orders sought.
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