Lepp v Victorian WorkCover Authority
[2023] VCC 905
•7 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-03870
| TIMOTHY LEPP | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May and 1 June 2023 | |
DATE OF JUDGMENT: | 7 June 2023 | |
CASE MAY BE CITED AS: | Lepp v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 905 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Roleff v Chubb Insurance of Australia Pty Ltd [2011] VSCA 21; State of New South Wales v Moss [2000] NSWCA 133; Abdulle v Advanced Wire & Cable [2009] VSCA 170; Hooley v Transport Accident Commission [2019] VSCA 263
Judgment: Leave granted to the plaintiff to commence common law proceedings for pain and suffering and pecuniary loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor with Ms C Shambrook | Maurice Blackburn |
| For the Defendant | Mr B McKenzie | Russell Kennedy |
HIS HONOUR:
Introduction
1The plaintiff in this proceeding, Timothy Lepp, is a now 29-year-old married man, with two primary school aged children. He completed Year 10 and then effectively went to work in labouring type employments. Thereafter, he remained employed in labouring and construction type employments.
2From 2015, he commenced working for MC Labour Services Pty Ltd (“the employer”) as a construction labourer. He worked on CFMEU building sites and undertook physical work. He was relatively well paid in that work. For the financial year ended 30 June 2019, he had gross earnings of $147,258.
3On 29 January 2020, the plaintiff was working on a building site in Queen Street, Melbourne. He was stripping plaster from a concrete column when a large glass panel fell and landed on him (“the incident”).
4This is a proceeding brought pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). The plaintiff claims that because of the incident he has suffered a “serious injury”. Specifically, he claims to have suffered a serious physical injury by way of a “permanent serious impairment or loss of a body function”, relying on the spine as the body function.
5There is no dispute in this proceeding that the incident occurred. There is no dispute that the plaintiff suffered a back injury and had an ongoing back condition[1] because of the incident.
[1]Transcript (“T”) 5, Line (“L”) 27.
6The plaintiff seeks the leave of the Court to commence a proceeding for both pain and suffering and loss of earning capacity damages. The defendant disputed that the plaintiff had suffered a serious injury either in respect to pain and suffering, or loss of earning capacity, but submitted that, while pain and suffering was not formally conceded, the focus of the defendant would be on economic loss consequences.[2]
[2] T 6, L 3-21.
7The proceeding was conducted in the usual manner. The plaintiff was required for cross-examination. He otherwise tendered affidavits and documents, including medical reports, relied upon by him. Similarly, the defendant tendered medical reports and documents relied on by it. I have considered all of the tendered evidence, together with the transcript of the plaintiff’s oral evidence, but I shall only refer to that material to the extent necessary.
8There was a particular focus during the hearing as to the calculation of the plaintiff’s “before injury” and “after injury” earnings, to which I shall return.
The plaintiff’s evidence
9The plaintiff swore an affidavit on 6 May 2022[3] containing evidence of his work history, injury, treatment and return to work. Relevant to issues in respect to work history and incapacity, he said –
“3.I completed school to Year 10 level. I then worked for Lend Lease and later Service Stream Maintenance working on emergency pipe and sewer bursts for Yarra Valley Water.
4.I commenced working for MC Labour Services Pty Ltd in about July 2015. I worked a labourer. I worked long hours including weekend work. My work involved considerable manual handling including bending, lifting and carrying items weighing up to 30-40kg. I was on my feet either standing or walking throughout the working day. I was regularly placed with the Delta Group to assist with demolition and machine work. I am a licensed excavator and bobcat driver. I attended the gym on a regular basis, mainly to perform body building and strengthening activities. I was fit and strong. Occasionally I did some work for an associated company, MC Traffic Management Pty Ltd. In the financial year ending June 2018 I earned $145,315 gross including allowances, and in the financial year ending June 2019, I earned $147,258 gross including allowances. In 2019 I did a diploma in ministry a one year on-line course involving biblical studies.
…
24.Eventually WorkCover agreed to fund a Boot Camp Certificate of Cyber Security. I did the course on-line through Monash University between August 2021 and February 2022. Since completing the course I have been applying for jobs in cyber security and in IT generally working at help desks. Nabenet have helped me with my resume. I am looking through Seek and LinkedIn. The jobs I am applying for seem to be paying about $50,000 to $80,000 gross per annum. I am hoping to find employment in those areas, but I obviously have a limited high school education and no experience, so it is difficult for me.
25.I continue to suffer from back pain and stiffness. My back aches most of the time, but is worse if I sit for too long or exercise awkwardly. I have regular flare ups of pain. My back is often very stiff. I continue to have numbness in the back of my left calf and on the bottom of my left foot. I take Melatonin to help with my sleep.
26.I attend the physiotherapist on a three weekly basis and the psychologist, now Azra Kamberovic, on a three weekly basis. There has been an improvement in my mental state with the ongoing assistance of the pain management psychologists. I was last reviewed by Dr Khan in late December 2021.
27.I swim on a regular basis and I do home exercises on most days. Prior to my injury I was able to dead lift up to about 200kg but now my physio has said that I should not lift more than 12-15kg from the floor. I have obviously been unable to return to body building which is something that I enjoyed very much prior to my injury. I also used to play regular golf, perhaps once or twice per month, with friends. I have tried to play four or five holes on the advice of my physio but I have found it very difficult because of the twisting and movement of my back. Prior to my injury I enjoyed hunting, for example for deer. I used to be able to carry a deer across my shoulders. I have tried some hunting more recently but cannot carry the deer and all I can really do is cut off some meat. I used to occasionally fill in for indoor cricket but I have been unable to return to that activity. I have had difficulty playing with my young children. Slaide is doing Aus Kick and I cannot be involved as I would like. My wife has had to return to work as a ward clerk at Northern Hospital because of my significantly reduced income on WorkCover payments.
28.I cannot sit or stand for prolonged periods. I have reduced capacity to bend and lift. I am no longer able to work in the manual work that I did prior to my injury. As a result of my back injury my earning capacity is very reduced.”[4]
[3]Plaintiff’s Court Book (“PCB”) 4.
[4]PCB 5; 10-12.
10The plaintiff then swore a further affidavit on 12 May 2023[5] containing evidence of his return to work and ongoing symptoms. He said –
[5]PCB 14.
“2.Since my previous affidavit, I have obtained permanent employment as a Penetration Tester. I work on a permanent, full-time basis. My work hours are flexible and I can choose the hours that I work, as long as I complete 38 hours per week. I have recently received a pay rise and my salary package is now $85,000 plus superannuation. My work duties involve completing online security checking of company websites. The work is online and I have an ergonomic setup. Nabenet came to my home to do an ergonomic check and make sure that my work station was appropriate for my back injury. Nabenet and the WorkCover insurer provided me with a sit/stand desk, and an ergonomic chair.
3. I usually start my day early, at about 5am. I work for about 3 hours, doing most of the work standing to take the pressure of [sic] my spine. I then take a break to walk and stretch. I then work for another 2 hours, before having a break for lunch and to have another walk. I then complete my last 2 hours of work.
4. By the end of my work day my back feels tight and sore. I do a light work out and stretch every day, in my home. I find the movement and stretching relieves my tightness and back pain.
5. I get pin [sic] and needles into my left leg, the left calf, and the underneath of my left foot by the end of the work week. I use a pillow under my knees while I sleep, to alleviate the pressure on my lower back. My wife, Taylah, uses a massage gun on my back and neck at the end of the week to alleviate the tightness and the pain.
6. Since starting my new job, Saturday needs to be a rest day for me. The kids do not have Saturday sport, so I take the opportunity to try and recover and sleep in. I feel that I am doing everything I can do [to] be well enough to do my job. At times it can feel that I am just existing to be able to work, and not able to extend myself outside of my job.
7. Financially things are tight. Whereas before my injury, we had the freedom to have holidays as we pleased and make extra mortgage repayment, we now have to scrimp and save. When we went to Queensland this year, we stayed with family to save on accommodation. When we took the kids to theme parks, I was worried about aggravating my back so I sat and watched while they went on rides with their Mum. When we went to Bali last year, it was a holiday that we had saved for, for almost 3 years. I had wanted to do treks and do 4-wheel adventuring, but I did not want to risk it with my back injury.
…
13. I am grateful for my new job. I love it. It has been a good surprise to find a role that I can manage with my back injury. However, I am financially in a difficult situation. I am earning significantly less than I had planned to. It is very difficult to see my friends and old workmates earning very high wages, and knowing that it is out of the question for me. My wife has had to find work since my injury. She currently works a 7-day fortnight. It has not been an easy adjustment for our family. She had not planned to work and I was happy to be the financial provider for our family. We felt that we had a plan that worked for us and our wishes, and my injury turned that upside down.
14. If I had not been injured, I had intended upgrading my qualifications and believe I would have been working right now as a CW3, Rigger. I would be earning at least $52.23 per hour, working 40 hours and doing at least 15 hours overtime a week. If I had not been injured, I would be earning at least $179,000 gross per annum.”[6]
[6]PCB 14, 15, 17.
11The plaintiff was cross-examined about the contents of his affidavits and other relevant issues. I consider that he presented as a witness of truth. He made concessions as appropriate. I am content that I can rely on his evidence.
12Relevant to the question of work capacity, he was cross-examined about what his intentions were before he was injured and whether he would have progressed from a labouring position to that of a rigger or dogman. He gave evidence of having applied to do the dogman’s course and during the cross-examination he produced a document dated 8 August 2018[7] that showed he had applied to do the course. However, he explained that sometime in mid to late 2019 he was offered a position in the course but had to defer it because work was too busy.[8]
[7]Exhibit P1.
[8]T 34, L 9-22.
13He was then cross-examined about his current employment as a penetration tester, which is a computer-based role that he performs from home. He had completed several relatively short courses before obtaining that employment. He is currently employed full time by Ionize Pty Ltd.[9]
[9]T 48, L 28.
14He was cross-examined about opportunities in this current field of employment and the further courses he had done with his current employer. One of the things put to him was that he could now work as a software tester:
“All of this involves software testing; is that right?---No.
I'm reading from defendant's court book 381, your Honour, and perhaps we might have that on the screen now. (To witness) Mr Lepp, you can see there, it says, "Software testers", the paragraph that's underlined, "Software testers specify, develop and write tests, plans and test scripts, produce test cases, carry out regression testing, use automated test software applications to test behaviour, functionality and integrity of computer software and document the results of tests in defect reports and related documentation". That is similar, I suggest, to, if not the same, to what you'd do as a penetration tester; what do you say?---Definitely not. Software testers usually have a background in software development, so they know how software actually is created and then they can find, um, I guess, weaknesses within the coding itself. I personally don't have any knowledge within actual computer languages. I've got a very basic knowledge of it. Penetration testers are a lot more of a broader spectrum of actually, you know, 90 per cent our work is a web application, so it's got nothing to do with the software itself.”[10]
[10]T 63, L 3-25.
15In re-examination, he explained how he was employed as a CW1 labourer at the time of the incident but was actually paid at the CW2 rate on a handshake agreement with the boss because he had turned down a job offer.[11] He was asked questions about job interviews and applications for employment before obtaining his current job as follows:
[11]T 66, L 26-28.
“You've been asked - well, no, you've said you made, I think someone you told said 150, someone 200 job applications; were they all for the same position effectively as the penetration tester?---Yes. There was a majority of penetration testers and then some people different names for them, but yeah, they were penetration testing jobs.
And did you get any feedback to why you were missing out on any of those jobs?---Yeah, I had probably three or interviews and they were all saying that, um, they had - you had to have a bachelors degree or at least three years tertiary to get a job.
And at the firm you're at now, are there other junior penetration testers?---Yes.
Are you aware of the qualifications that they hold?---Yes.
And what are they?---Um, I've got two others that are juniors me and they're both very similar; I've probably got more certifications in the testing side of things, but none of them have got bachelors, no.
If you were to a senior penetration tester, what would that require in terms of qualifications?---Going back and getting at least a bachelors in IT, but they prefer a masters.
Are you aware of the sort of pay that a senior penetration tester would get?---I'm not fully aware. I know it ranges high, but I think from my workplace it's 120,000, from what I can gather.
Just in terms of, you were asked questions about the bachelors degree and you thought from a mind perspective you might be able to cope. Can I just run you through past academic efforts of yours?---Yeah.
School, you got to Year 10. What school did you go to?---Plenty Valley Christian College.”
Was there any specialist reason you were there or?---Um, my mum worked there.
Were you involved in another school or another education institution at the time?---So, after I finished Year 10 I tried to join SEDA.
C-u-d-a. Can you tell us what that one is? What's that?---SEDA is Sports Education Development Australia. So, it was a new thing back then. It was based around a certain sport that you chose and they promised the world, and after a term I realised it was not very good at all.
And what sport were you involved in?---Football.
Was it a combination of sport and education, effectively, as well as schooling?---Yes.
So, was that called Year 11 that you might have started for a short time or?---I'd say so, yes.
When you did the boot camp course, can you just tell us what hours were involved in that?---It was two times a week of a two-hour session online; I think it was Monday nights and Thursday nights for two hours, and then the rest - I mainly completed all my work within those time periods, but if we needed to do some extra homework, there wasn't much extra.
I should go back and ask you. When you left school, did you ever consider further education or tertiary education?---No.
In terms of, if there was ever the prospect of doing a bachelors degree, did you make any enquiries as to how you sort of clear the jump between maybe one term of Year 11 with commencing at a university?---I'm pretty sure I'd have to do a year's jumper course, so to try and get - I don't know what they try and – what they call it, it's the course you have to do in between studying a bachelors if you haven't finished Year 12, so it's another year on top.”[12]
[12]T 67, L 21; T 69, L 26.
Medical evidence
16The medical evidence in this proceeding is relatively consistent. There is no need to discuss it in detail.
17First, the medical evidence in this proceeding broadly confirmed that the plaintiff suffered a back injury in the incident, which continued to trouble him.
18Second, the plaintiff’s treatment has essentially been conservative treatment. The evidence from treating health practitioners about that treatment is relatively limited. No medical witness suggested that there should be a need for anything other than conservative treatment. No doctor suggests that the plaintiff’s ongoing symptoms require any interventionist treatment or prescription medication.
The treaters
Dr Mohammad Almarashi
19The plaintiff tendered a report from Dr Mohammad Almarashi, his treating general practitioner, dated 13 May 2021.[13] Dr Almarashi noted treatment to that date and the plaintiff having persistent neck and occipital pain and persistent lower back pain.
[13]PCB 42.
20The plaintiff agreed in cross-examination he had not mentioned his low back condition now to Dr Almarashi for several years, although he had attended him for other health issues as needed, such as an infected tooth.[14]
[14] T 18, L 9-28.
Mr David de la Harpe
21Next, the plaintiff was referred by Dr Almarashi for an orthopaedic assessment with Mr David de la Harpe. He saw Mr de la Harpe on one occasion. In a report dated 20 April 2021 to the plaintiff’s solicitors Mr de la Harpe said –
“Treatment Recommendation”
I certainly did not feel that surgery should be considered and we needed to continue this year with Saleem’s pain management program, gradually escalating his active physiotherapy into a gym program. I left it with Saleem for consideration of such modalities as epidural, steroids etc.
In summary and in response to your specific questions:
1. The clinical history was that of a work related injury where a pane of glass fell on Mr Lepp and he spent the next six days in The Royal Melbourne Hospital for investigations, but no surgical treatment was instigated.
2. The diagnosis is that of degenerative and discogenic lower back pain without compressive radiculopathy or sensory or motor neuropathy.
3. The results of the pertinent test was that of an MRI scan consistent with degenerative change at the lumbar sacral disc with a small central prolapse without neural compression.
4. The treatment recommendation was that of continued conservative management with continued escalating physiotherapy, a gym program and ongoing consultations with his pain management specialist as well as the possibility of CT guided injections.
5. In my opinion the injuries are consistent with the stated cause.
6. My prognosis is extremely guarded as there has been a poor response to conservative management at the time of my review which had been ongoing for some 15 months from the accident. The estimate of future medical treatment at this stage does not involve surgical intervention but continued conservative management and pain management.
7. As of the time of my review of Mr Lepp for the one and only consultation I thought he was receiving appropriate treatment and it was unclear whether any other assistance may be of benefit to him. I would be happy to review his situation after a suitable period of time of conservative management with Dr Saleem Khan, pain management specialist from whom I have received no correspondence to date.”[15]
[15]Defendant’s Court Book (“DCB”) 34.
Dr Saleem Khan
22As noted in the report from Mr de la Harpe, the plaintiff’s treating pain specialist has been Dr Saleem Khan at Advance Health Care. The evidence from Dr Khan is limited and out of date. It is contained in correspondence to Dr Almarashi dated 7 August 2020 and 29 January 2021.[16] That treatment has been principally for assessment and pain management strategies. The plaintiff conceded during his oral evidence he no longer sees Dr Khan.
[16] PCB 25; PCB 31.
23The plaintiff has had physiotherapy treatment, but there is no evidence from a treating physiotherapist.[17] Not much turns on that, as I accept the plaintiff’s evidence that the advice was for him to perform self-managed exercise,[18] which he does, in addition to continuing to maintain some strength and fitness in his home gym.
Medico-legal evidence
[17] T 115, L 29-31.
[18] PCB 23.
Dr Mohammad Awad
24The plaintiff relied upon medico-legal reports from Dr Mohammad Awad, consultant neurosurgeon. In a report dated 26 November 2022, Dr Awad diagnosed traumatic aggravation of lumbar spondylosis and ongoing left S1 distribution permanent numbness.[19] In respect to work capacity, Dr Awad then said –
“Work capacity
In his current state, he does not have the capacity for his preinjury employment as a labourer and construction worker. It is unlikely that he will be able to ever return to this by way of his injury.
He does have some capacity for alternative work, which he is currently managing at the moment as an IT desk-based worker doing 40 hours a week.”[20]
[19]PCB 62.
[20]PCB 61.
25Dr Awad said further that –
“3. Details of what restrictions are imposed upon our client by reason of his back injury only and whether those restrictions can be considered as being permanent;
He would now have restrictions on any heavy pushing, pulling, bending, twisting, lifting and repetitive lumbar spine movement or any prolonged sitting or standing. These restrictions can be considered as being permanent.
4. Your views as to whether our client can return to full time, unrestricted work in his pre-injury position of employment when considering his back injury only;
I do not think he will ever be able to return to his full-time unrestricted work in preinjury position by way of this injury.
5. Your opinion about our client’s realistic capacity for work
He does have capacity for work, which he is managing at the moment in the form of IT. I do not think he will ever be able to return to his construction and labourer type work which he was doing prior.”[21]
[21]PCB 62.
Dr Andrew Miller
26Dr Andrew Miller is occupational health consultant who examined the plaintiff and provided reports to the WorkCover agent. In his first report dated 23 December 2020,[22] Dr Miller said that the plaintiff has sustained a chronic incapacitating back injury but that he expected further slow improvement. He said the plaintiff was then not capable of undertaking his pre‑injury duties but could undertake work with restrictions.[23]
[22]DCB 245.
[23]DCB 248.
27Dr Miller then provided a further report dated 6 January 2021[24] as part of a worksite inspection to ascertain if there were suitable duties for the plaintiff. Dr Miller said it was apparent that the plaintiff was not able to undertake his pre‑injury duties but that the alternate duties identified were recommended and within the plaintiff’s capacity.[25]
[24]DCB 250.
[25]DCB 252.
Dr Graeme Doig
28Dr Graeme Doig, orthopaedic surgeon, also assessed the plaintiff at the request of the WorkCover agent. Dr Doig provided a report dated 20 July 2021[26] in which he diagnosed a soft tissue injury to the lumbo-sacral spine with no obvious pathology identified on MRI scan or nerve conduction studies. Dr Doig said the prognosis must be guarded with respect to the plaintiff returning to physically demanding employment and activities.[27]
[26]DCB 264.
[27]DCB 267.
Dr Mary Wyatt
29Dr Mary Wyatt, occupational physician, examined the plaintiff at the request of the defendant’s solicitors and provided several reports. In her first report dated 11 August 2022,[28] Dr Wyatt said –
[28]DCB 313.
“32. Your diagnosis of the worker’s current physical condition and whether the alleged work incident materially contributed to the condition, and, if your answer is “Yes”, whether work is still a materially contributing factor to the worker’s current condition.
The diagnosis is chronic low back pain without radiculopathy. On all of the information available, the back problem has been caused through Mr Lepp’s work and the employment materially contributes to his current problems.
33Based on your findings at the time of your examination, is the worker currently capable of:
(a) returning to pre-injury duties? If the answer is “No”, will he in future be able to do so, and what is the likely timeframe for him to do so?
(b) returning to suitable employment, and if so, what are the applicable restrictions and/or modifications in relation to suitable employment? If the answer is “Yes”, is the worker capable of performing suitable employment on a full-time basis? If not on a full-time basis, how many hours a week is the worker capable of performing? If you are of the view that the worker is currently not capable of returning to suitable employment, will he in future be able to do so, and if so, what is the likely timeframe for him to do so?
(c) performing the duties detailed in the enclosed vocational assessment report of Nabenet dated 7 March 2022? If “Yes”, is he capable of performing these duties on a full-time basis? If not on a full-time basis, please comment as to how many hours a week the worker is capable of performing.
It is not sensible that Mr Lepp returns to pre-injury duties into the foreseeable future. There is a possibility that if he wished to and his problem continued to abate, he may be able to go back to manual work. On the whole, I think this is unlikely to be successful.
Mr Lepp is currently working in his new role. He trained in cybersecurity and has found work in that area. He is working full-time. He can change his position intermittently and the job is not physically taxing. He is enjoying the job, which is an added bonus.
With respect to the duties outlined in the Nabenet Vocational Assessment Report, with the report being completed on 7 March 2022, job options listed include:
(i)Customer Service Representative;
(ii)Administration Assistant;
(iii)Hire Controller/Rental Officer;
(iv)Postal Delivery Officer (Rural Mail); and
(v)Cybersecurity Consultant.
With respect to the mail delivery role, this involves sorting mail and parcels and delivering to customers’ premises. Noting that there would be reasonably regular bending and lifting and extended periods of driving, I do not recommend this role for Mr Lepp.
The other roles, doing customer service, administration, and cybersecurity consultant, are all similar in their physical demands. All of these roles are suitable for full-time hours of work, provided Mr Lepp can stand up and move around intermittently.
The hire controller/rental officer work is not physically taxing and there is regular change in position. This is also a suitable role for full-time hours of work.”[29]
[29]DCB 319-320.
30Dr Wyatt then re-examined the plaintiff and provided a further report dated 19 April 2023.[30] In respect to the progress since she last saw the plaintiff, Dr Wyatt recorded that –
[30]DCB 322.
“PROGRESS SINCE LAST SEEN:
Mr Lepp said his overall situation has not changed materially in the eight months since he was last seen. He continues to go to the physiotherapist about every three to four weeks. The physio checks on his exercise program and will sometime give him hands-on treatment such as massage or dry needling. He is exercising at home.
Mr Lepp said his pain is much the same. It is essentially in the left low back. The pins-and-needles he has at the back of his left calf at times are particularly painful. He said they will stay for about 20 minutes, and this happens a few times a week. There is nothing he can do to alleviate the symptoms, which settle by themselves.
He is also taking Nurofen infrequently and melatonin to help his sleep.
He continues to work in the same cyber security job, doing penetration testing. He works from home full-time. He takes a 30-minute lunch break and during that time will cook some lunch rather than go for a walk to move his back. He purchased a sit-stand workstation and alternates sitting and standing, but still needs to move around regularly.
He continues to use a foam roller and do stretches.
Mr Lepp said it has been difficult for him, living on a significantly reduced income. He was previously earning about $150,0000 a year and is now earning $80,000. His wife has entered the workforce and works a nine-day fortnight. Mr Lepp said it has still been financially difficult.
Mr Lepp said he is waking more often in the night since the cold weather has arrived. At home, he and his wife share the household duties and he said they have got into a pattern of him doing certain things and his wife doing the other tasks. He cooks most days as he is home, and he will put the washing in the machine and vacuum with a stick vac. His wife takes the clothes out of the washing machine and does many of the other chores.
Mr Lepp said he cannot afford to do any further studies as he does not have the time, and the workplace is not looking to advance his skills.”
31Dr Wyatt noted the plaintiff again attended as a straightforward, pleasant man.[31]
[31]DCB 324.
32Dr Wyatt said the diagnosis was best characterised as chronic spinal pain and that work is the cause of the condition.[32]
[32]DCB 326.
33In respect to current work capacity, Dr Wyatt said –
“8. Please obtain a history from the worker concerning the employment he has engaged in if any if any since your previous examination of the worker. What tasks and duties does/has he performed in that employment and has/is he performing those tasks and duties on a consistent and reliable basis?
Mr Lepp continues to work full-time in cyber security. He works from home and enjoys the role. Since last seen, he has purchased a sit-stand workstation and alternates a sitting and standing position. He also takes breaks so he can move around regularly.
In his work he conducts penetration testing. He is involved in meetings with his manager and will then work on a particular project with a private or public company, running through a series of tests to see if there are cyber security risks present. Results will be fed back to the company.
He is basically doing computer operation work and is managing this on a consistent and reliable basis.
9.Based on your findings at the time of your examination, is the worker currently capable of:
(a) returning to pre-injury duties? If the answer is “No”, will he in future be able to do so, and what is the likely timeframe for him to do so;
(b) returning to suitable employment, and if so, what are the applicable restrictions and/or modifications in relation to suitable employment? If the answer is “Yes”, is the worker capable of performing suitable employment on a full-time basis? If not on a full-time basis, how many hours a week is the worker capable of performing? If you are of the view that the worker is currently not capable of returning to suitable employment, will he in future be able to do so, and if so, what is the likely timeframe for him to do so;
I remain of the view that there is a possibility of Mr Lepp returning to more manual work in the future. He had a difficult time, physically and psychologically, after a traumatic work injury. He reports ongoing spinal pain. There are no structural problems in the spine and, as recommended above, Mr Lepp should be encouraged to gradually increase his day-to-day level of activity.
He may or may not be able to go back to construction activities in the future. I doubt this would be possible within the next two to three years, but possibly beyond that. There is a range of other options in construction that would be less physical, if he wished to do short-course training such as operating plant equipment or traffic management.
He is currently working in a different field, in cyber security. This is a sedentary role, and he is doing this full-time. He is fit to continue in this role and any other similar roles, in terms of the demands on his body.”[33]
[33]DCB 326-327.
34Dr Wyatt then provided a third report, dated 23 April 2023,[34] in which she was asked to comment on a vocational assessment. In short, Dr Wyatt endorsed some jobs and disapproved of other jobs as exceeding the plaintiff’s residual physical capacity.
[34]DCB 329.
35That is the extent of the medical evidence. It confirmed that the plaintiff injured his back in the incident. It confirmed he has had conservative treatment to manage ongoing low back pain. In respect to a diagnosis, the doctors use different language to describe the injury, all the doctors accept there is a persisting physical back problem and symptoms.
36If it was necessary to arrive at a precise diagnosis, I prefer the opinions of the specialists Mr de la Harpe and Dr Awad, who both broadly diagnose the aggravation of degenerative change in the spine, noting the plaintiff has no relevant past history of spine pain.
Legal principles – pecuniary loss test
37Before dealing with the relevant evidence of work capacity, it is convenient to set out the relevant legal principles.
38After some discussion with counsel, ultimately the legal principles in this proceeding were not in dispute.[35]
[35] T 90, L 1-10.
s325(2)(b) and (c) of the Act
39In order to establish an entitlement for leave to commence a proceeding for loss of earnings damages, the plaintiff must first establish that the loss of earning capacity consequences from the compensable injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being “more than significant or marked”, and at least “very considerable”, as per the narrative test set out in s325(2)(b) and (c) of the Act.
40The defendant conceded that the plaintiff cannot return to his pre-injury construction type work.[36] The inability to return to that employment obviously limits the job options now open to the plaintiff. In addition, he has lost earnings to date, and he will have a loss of earning capacity into the future because of his reduced job options. He has lost the ability to continue in relatively well-paid employment in the construction industry. He has lost the benefit of pay rises to date. He is losing over $50,000 gross per annum at present by comparing the pay from his current job with what he was earning at the time of the incident. All those facts, in my view, justify a conclusion of a “very considerable” consequence to him, such that the narrative test is satisfied.
[36] T 80, L 4-8.
s325(2)(e), (f) and (g) of the Act
41Returning to the legal principles, upon establishing “very considerable” loss of earning capacity consequences, as the plaintiff has, then next he must satisfy the statutory formula as contained in ss325(2)(e), (f) and (g) of the Act, namely, whether he has a loss of earning capacity of 40 per cent of gross earnings, measured as set out in s325(2)(f), and will permanently have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more of his gross earnings, as required by s325(2)(e)(ii).
42It is this aspect of the proceeding that is the real contest.
s325(2)(e)(i) and (f) of the Act
43To satisfy the statutory formula in s325(2)(e)(i) and (f), the measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) first, the gross income the plaintiff is earning, or is capable of earning, in suitable employment at the date of the hearing (“after injury earnings”); and
(b) second, the gross income the plaintiff was earning, or was capable of earning, “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred”[37] (“without injury earnings”).
[37]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraph [70].
44Based on the plaintiff’s taxation return for the financial year ended 30 June 2019, the defendant submitted that the plaintiff’s “without injury earnings” was $147,258 gross per annum ($2,831 gross per week). 60 per cent of that figure is $88,355 gross per annum ($1,699 gross per week).
45The plaintiff is currently working as a penetration tester for earnings of $85,000 gross per week. If I was to accept his current earnings as appropriate “after injury earnings” then the statutory formula is satisfied.
46The defendant placed reliance on earnings figures provided by Ms Sue Barbuto, occupational therapist, in a report by CoWork Pty Ltd dated 6 September 2022.[38] Ms Barbuto had referenced a jobs market database to obtain evidence of what penetration testers could earn. But as she noted “Penetration tester is a new ANZSCO classification – currently there is no available data for Penetration Tester on Jobs Market Australia or Labour Markets Insights”.[39] Next, she set out her understanding of what was involved in the role of a penetration tester, by reference to that of a software tester role, and then she estimated a range of earnings figures. The higher of her figures was $97,448 gross per annum.[40]
[38] DCB 360.
[39] DCB 381.
[40] Ibid.
47If I was to determine that $97,448 gross per annum was appropriate “after injury earnings”, then based on the “before injury earnings” of $147,258, the plaintiff would not satisfy the statutory formula.
48However, I am not prepared to accept the figures in the CoWork report. First, there is a clear element of estimation in the report and the figures. Second, it ignores the objective evidence that after 150-200 job applications, the plaintiff obtained his current job as a penetration tester for which he is now paid $85,000 gross per annum. In circumstances where he does not have a tertiary qualification and has restrictions from his back injury, such as the need to regularly change his posture, I consider that the best evidence of his “after injury earnings” is the evidence of the actual job and the actual earnings that he has, rather than speculation and guesswork involved in the CoWork analysis.
49Therefore, the statutory formula is satisfied.
50But, for completeness, I also accept the submission of the plaintiff that his “without injury earnings” should not be confined to the 2018/2019 tax return, because at the time of his injury he was earning a higher rate of pay. He produced a payslip dated 3 December 2019 that is evidence of earnings of $68,327 gross (or $3,105 gross per week) in the 22 weeks from 1 July to 3 December 2019. The plaintiff submitted that this figure should be multiplied by 48 weeks (to account for the Christmas shut down in the construction industry when overtime and the like would not be available to him), plus 4 weeks of ordinary base weekly wage of $1,796 gross per week. Those two amounts total $156,224 gross per annum.
51Next, and again for completeness, I also accept the submission of the plaintiff that in the relevant three-year window after injury, the plaintiff would have had the benefit of EBA wage increases. The plaintiff provided the relevant EBA that demonstrated a wage increase of 9.08 per cent across the relevant three-year period after injury.[41] Applying a 9.08 per cent increase to the figure of $156,224, produces a “without injury earnings” figure of $170,409 gross per annum. 60 per cent of that figure is $102,245 gross per annum. Obviously, the plaintiff’s “after injury earnings” of $85,000 gross per annum is well below $102,245.
[41] Exhibit P1.
52To complete a discussion of matters raised, the defendant submitted that the plaintiff’s current “after injury earnings” should be considered to be as much as $97,448 gross per annum as per the evidence in the CoWork report[42] as to the range of salary for a penetration tester. Two things can briefly be noted. First, the figure of $97,448 is below the threshold of $102,245 and so the plaintiff satisfies the formula. Second, I prefer the figure of $85,000 as the best evidence of the plaintiff’s “after injury earnings” as it reflects a real job as a penetration tester and is not an artificial figure involving guesswork and assumptions like the CoWork figure.
[42] DCB 381.
53In short, no matter how you slice it, the plaintiff satisfies the test contained in s325(2)(e)(i) and (f) of the Act.
s325(2)(e)(ii)
54The final – and some might say only – issue for determination on the question of loss of earnings is s325(2)(e)(ii) and the question of whether the plaintiff will “after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more”.
55This provision requires the Court to conduct a comparison in accordance with common law principles[43], to determine if the plaintiff has established a loss of earning capacity that will be productive of financial loss of 40 per cent or more.
[43] Roleff v Chubb Insurance of Australia Pty Ltd [2011] VSCA 21 at paragraph [30].
56The common law approach is not shackled to the statutory formula. As was said regarding the common law approach by Heydon JA (as he then was) in State of New South Wales v Moss –
Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347.[44]
[44][2000] NSWCA 133 at paragraph [71].
57I note that the common law approach has been modified to a degree in s325(2)(e)(ii) by the requirement that the loss of earning capacity must be productive of financial loss of 40 per cent or more.
58I consider that the plaintiff has made out the requisite loss using common law principles.
59First, he has lost the capacity to engage in full and unrestricted manual work, including for work in the construction industry, that he had before the incident.
60Second, he has lost the opportunity for promotion and advancement within the construction industry, such as by achieving a position as a dogman or rigger, with higher salary.
61Third, the fact he is now confined to lighter or sedentary type employment increases the risk of unemployment or underemployment. If he was to lose his current position then he is likely to take longer to find a position that fits his physical restrictions, consistent with the fact that he made 150-200 job applications before obtaining his current job with an employer who employed him knowing of his back condition.[45]
[45] T 58, L 28.
62Fourth, the plaintiff effectively left school in Year 10. He has completed sufficient courses to obtain his current role as a penetration tester, but I accept his evidence that in order to meaningfully advance his carer he would require a bachelor’s degree, which he does not hold. Future job opportunities and promotion will see him in competition with people who hold a bachelor’s degree. I accept his evidence that in order to be able to complete a Bachelor of IT would require him to take three or four years out of the workforce, which is not a viable option for him with a young family and a financial need to be employed.[46]
[46] T 58, L 5-26.
63Fifth, and as already discussed, the plaintiff has an actual financial loss of greater that 40 per cent at present in accordance with the statutory formula, which is more restrictive than the common law approach.
64Sixth, the defendant submitted that plaintiff’s loss at present may be greater than 40 per cent but that this loss was not permanent. As counsel for the defendant said more colourfully, the defendant’s submission was that where the plaintiff is at present is not the end of the road.[47] With more experience as a penetration tester and with the option to do further studies[48] then he may earn more money. In respect to earnings, the defendant again relied on the CoWork report and highlighted the job as an ICT Security Specialist with an average full-time salary of $117,364 gross per annum.[49]
[47] T 93, L 29-30.
[48] T 94, L 14-15.
[49] DCB 383.
65But, there is a flaw in the submission of the defendant because it conflates loss of earning capacity with loss of earnings. Even assuming that the plaintiff could find the time – such as taking several years off work – to gain a bachelor’s degree, or to complete the “vocational pathway” to obtain a position as an ICT Security Specialist, he will still have a concurrent loss of earning capacity that on the evidence set out and in accordance with common law principles will still, in my view, produce an actual financial loss of 40 per cent or more.
66Accordingly, I consider that the plaintiff has satisfied all the requirements in the Act and has established the requisite loss of earning capacity such that he is entitled to leave to commence a common law proceeding for loss of earning capacity damages.
67As a corollary to establishing an entitlement to commence a proceeding for loss of earning capacity damages the plaintiff is also entitled to leave to commence a proceeding for pain and suffering damages.[50]
[50] Abdulle v Advanced Wire & Cable [2009] VSCA 170.
Pain and suffering
68For the reasons given, it is unnecessary to say much specifically about the pain and suffering aspect of this proceeding, but as the parties each made submissions, I will say a few words directed specifically to this aspect of the proceeding.
69First, the plaintiff struck me as a straightforward and honest witness. He also struck me as well-motivated and someone who has attempted to get on with his life as best he can.
70Second, in considering the pain and suffering consequences, it is relevant to look at not only what has been lost, but what is retained.
71Third, I consider it a relevant consideration that the plaintiff is a relatively young man. While the pain from his back injury is not at a level that could be said to be excruciating or completely debilitating, nevertheless I accept his evidence that he does have constant low back pain, albeit in his words at a level that is ”manageable”.[51] His age is therefore a relative consideration as to the length of time that he will have to put up with the pain.
[51] T 23, L 30-31.
72Fourth, I accept the plaintiff’s affidavit evidence and what he said in the witness box that he is now precluded from the type of gym regime that he regularly undertook pre-injury.[52] I accept that he needs to change posture if he is in a static position for about 45-60 minutes and that he has reduced tolerances for physical activity such as hunting, playing golf or playing with his children.
[52] T 67, L 19.
73Fifth, I accept that the plaintiff cannot return to his pre-injury employment. There is a loss of enjoyment of life by not being able to earn the income that he enjoyed in his pre-injury employment. I accept his evidence that financially things are tight for him, and he has lost the financial freedom that he had before the incident. But this is a significantly more limited consequence and not one that considers the actual financial loss.[53]
[53] Hooley v Transport Accident Commission [2019] VSCA 263 at paragraph [41].
74Sixth, I also accept that the plaintiff is still able to engage in a range of day-to-day activities and to work full-time. He has been able to travel for family holidays. He still undertakes regular exercise in his home gym. He participates in activities with his wife and children. His ongoing treatment is confined to home-based exercises and the occasional use of over-the-counter medication such as Panadol or Nurofen. There is no great impact on his sleep and the evidence about any reduction in his intimate life is clouded by his medical history and his oral evidence.[54]
[54] T 67, L 14-20.
75Seventh, taking all things into account, in isolation, I am not satisfied that the pain and suffering consequences are “very considerable”. While they are not insignificant and might fairly be said to “marked” they do not equate to a “serious injury” keeping in mind the range of impairment and impairment consequences that must be considered and not just those that come before the courts. In what is very much a value judgment, I do not consider that the plaintiff has “very considerable” pain and suffering consequences from the compensable low back injury.
Disposition
76Therefore, for the reasons expressed, the plaintiff has the leave of the Court to commence a proceeding for both pain and suffering and loss of earning capacity consequences.
77I shall hear from the parties as to consequential orders.
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