Lockwood v VWA
[2018] VCC 524
•24 April 2018
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-05408
| Roen Vincent Lockwood | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | Saccardo | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 9, 11 and 12 April 2018 | |
DATE OF JUDGMENT: | 24 April 2018 | |
CASE MAY BE CITED AS: | Lockwood v VWA | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 524 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – bilateral injury to upper limbs
Legislation Cited: Accident Compensation Act 1985
Judgment: Leave Granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Seccull QC and Mr K Mueller | Stringer Clark |
| For the Defendant | Mr W R Middleton QC and Ms F Spencer | IDP Lawyers |
HIS HONOUR:
1 In this application the plaintiff seeks leave to commence a proceeding claiming damages both with respect to pain and suffering and pecuniary loss stemming from injury sustained by him to both his upper limbs as the result of a traumatic incident which occurred in the course of his employment with the Defendant on 9 August 2011 in which each of his limbs were caught in a conveyor belt.
2 In the application of the parties rely upon:
· two affidavits sworn by the plaintiff and an additional affidavit sworn by the plaintiff’s partner;
· medical and like records tended by them;
· the viva voce evidence given by the plaintiff in the course of the proceeding; and
· surveillance material of the plaintiff.
3 The affidavit evidence of the plaintiff, his viva voce evidence and the content of the medical evidence is self-explanatory, I do not propose in the course of my reasons to set out the content of that material, I will however refer to it as necessary in order to disclose my path of reasoning.
4 An issue arises in this instance as to the nature of the condition with which the plaintiff now presents by reason of his injuries.
5 Mr Kenneth Brearley has described the injury as involving microscopic damage to the forearm structures which is not identified on investigation, commenting that the absence of investigative findings is typical of crush injuries in which pain is ongoing.
6 Mr Clayton Thomas has described the plaintiff as presenting with the aftermath of a crush event causing residual pain which has a neuropathic genesis. He described the injury as being solely organic in nature.
7 Mr Csongvay, the plaintiff’s treating orthopaedic surgeon, opines that the plaintiff had experienced a severe crushing injury to both his forearms which had caused a significant soft tissue and very likely neurological trauma with a resultant chronic pain syndrome.
8 Mr Ralph Popenbeek describes the plaintiff as presenting with the residual effect of a severe crush injury to both forearms with some features of functional compartment syndrome.
9 Dr Roy Karna in October 2014 diagnosed the plaintiff as presenting with a soft tissue injury to both forearms and essentially agreed with the diagnosis of Dr Thomas as to the nature of that injury.
10 Dr Michael Bloom in October 2017, accepted the fact that the plaintiff presented with crush injuries to both forearms and presented as a straightforward man without any attempt to embellish his symptoms, commenting that the precise cause of his symptoms was somewhat unclear but not inconsistent with the compartment syndrome and as such there was an organic basis for his presentation which was consistent with his injuries.
11 In my opinion there is a consistency between each of these doctors as to the nature of injury sustained by the plaintiff which in turn is supported by the findings of the medical panel in this instance, which on 2 July 2015 reported the plaintiff as presenting with persisting bilateral forearm and wrist dysfunction due to unresolved crush injury of the soft tissues of the forearms with evidence of dynamic compartment syndrome.
12 Given the consistency of the above opinions from medical practitioners who have treated the plaintiff and examined him in the course of medico legal assessments arranged by both the plaintiff and the defendant, I am well satisfied that the weight of the evidence establishes that the plaintiff suffers from the consequences of crush injury to each of his forearms, the disability associated with that injury being organic in nature, stabilised and producing the ongoing symptoms with which the plaintiff presented to the above mentioned medical practitioners.
13 I am further satisfied that the bilateral condition of the plaintiff’s upper limbs is such that they preclude him from engaging in activities which involve the repetitive use of his upper limbs on a constant or for that matter regular basis.
14 Having made that comment it is appropriate to succinctly explain my reason for finding the opinions expressed by Dr Miller and Dr Frazier to lack persuasion.
15 In his first report in 2013 Dr Miller, having examined the plaintiff, opined that the plaintiff had sustained a severe contusion injury to his upper limbs with possible neurological damage to the left with the result that the plaintiff was not fit to return to pre-injury duties.
16 When Dr Miller re-examined the plaintiff in March 2016 and essentially made identical findings on examination, he expressed the opposite opinion. For this reason I find his opinion to lack any persuasion.
17 Whilst Dr Kevin Fraser, in 2013, considered the plaintiff’s injuries to have resolved completely there is a considerable body of medical evidence which postdates his opinion which expresses an opinion to the contrary. Further the medical panel which considered the opinion of Dr Fraser found it not to be persuasive. For each of these reasons I do not find the opinion of Dr Fraser to be persuasive.
18 In this case issues have arisen as to the reliability of the plaintiff as an historian and as to his credibility.
19 Essentially those issues have their basis in the surveillance evidence which reveals the plaintiff in moving and relocating items employed by him in his then part-time occupation as a disc jockey.
20 There is no issue that the plaintiff has engaged in his part-time occupation of a disc jockey since having suffered his work-related injury. The plaintiff has never denied having had the capacity to do so but has maintained that the way in which he has undertaken that work since suffering his injury has involved alterations in his system in an attempt to accommodate his disability. Essentially those alterations have involved the creation of rolling platforms to reduce the lifting involved in the movement of the equipment which the plaintiff uses in this work and further the employment by the plaintiff of an assistant on each occasion in which he is undertaking the work.
21 At no time has the plaintiff suggested that he is incapable of undertaking physical activity on a one-off basis. The plaintiff’s complaint has consistently been that repetitive activity involving his upper forearms exacerbates his symptoms.
22 The plaintiff’s partner describes him as always having been physically strong and has since the accident continued to exacerbate his symptoms by attempting to perform tasks which are now beyond him.
23 When considered in that context I am of the opinion that the surveillance evidence has no relevance in diminishing the plaintiff’s reliability or credibility as a witness.
24 Whilst the defendant presses the position that the plaintiff’s post-accident involvement in the business he had operated for many years as a disc jockey suggests the presence of a capacity for activity inconsistent with that identified by the plaintiff I do not accept that position.
25 In my opinion a balanced analysis of the plaintiff’s continued employment as a disc jockey and his reasons for giving up that work, is as follows:
(i) Firstly, he was able to continue with that activity notwithstanding the fact that it exacerbated to some extent his symptoms by reason of the fact:
· that it was not an everyday occurrence; and
· that not only had he modified his systems so as to reduce the lifting involved in the transport of his equipment but he had employed, without exception, the assistance of either his partner or someone else to enable him to do the work;
(ii) Secondly, that he had abandoned the activity by reason of the combined effect of the fact that that it was not remunerative[1] and was no longer enjoyable for him.
[1]As to the statement that it was not remunerative, whilst I was urged by Senior Counsel for the defendant to take the view that the poor performance of the business was in no way related to the plaintiff’s capacity to perform the activity with his previous regularity there is no evidence that this one way or another and it is not an inference which I am prepared to draw. As to the plaintiff’s loss of enjoyment, is clear given his long history of undertaking the work and his attempt to continue to do so after being injured that his loss of enjoyment was related to the physical toll which the activity placed upon him.
26 While it was asserted that the plaintiff’s capacity to continue in his pre-injury duties immediately following this injury demonstrated a capacity to do that work, as I have said the absence of that capacity is attested to by the fact that the plaintiff upon being no longer able to cope with the continued aggravation of his condition by the work consulted his general practitioner and was certified for light duties. It is further attested to by the preponderance of the medical evidence which confirms that the plaintiff is not fit for his pre-injury duties.
27 Finally, that issue in my opinion is definitively put to rest by the plaintiff’s long history of employment with the defendant and his affidavit evidence and that of his wife, which is unchallenged, as to his wish to continue in employment and the social and emotional loss suffered by him by reason of the fact that he was retrenched. Given that history I am well satisfied that if the plaintiff had the capacity to continue to perform his pre-injury duties with the defendant he would have done so and that the reason for his failure to do so stems from the incapacity caused by the accident related condition with which he now presents in both his upper limbs.
28 In my opinion the process of assessing both the plaintiff’s reliability and credibility should have it’s starting point with the plaintiff’s exemplary history of employment with the defendant which extended for over 20 years; his return to employment initially undertaking unrestricted duties when those duties were clearly beyond him having regard to the medical evidence subsequently generated by his treating general practitioner which resulted in the plaintiff being allocated restricted duties.
29 That history when considered in the context of the fact that the plaintiff:
· continued in light duties for the defendant until he was terminated after serving the defendant faithfully for some 27 years;
· spent 18 months or so seeking alternative employment after his termination by the defendant;
· found suitable employment with the assistance of his rehabilitation provider which does not involve in any real sense the use of his upper limbs; and
· has continued in that employment,
in my opinion speaks both eloquently and definitively upon the plaintiff’s attitude towards attempting to rehabilitate himself into employment and minimising the effect of his work-related injuries upon his life and level of income.
30 It was suggested in the course of cross examination that the plaintiff has not made, and does not continue to make, diligent and appropriate attempts to maximise his income. Essentially, that criticism of the plaintiff was based on the fact that he has not sought more remunerative employment than that in which is currently engaged. In my opinion that suggestion lacks any merit whatsoever.
31 When account is taken of the plaintiff’s history of:
· remaining in one job with the defendant for over 27 years;
· upon being retrenched being unemployed for a significant period of time until the current job was found for him with the assistance of his rehabilitation provider;
any sensible analysis of his current position would not question the fact that he may well be reluctant to chance the security which exists for him in the work in which he is now engaged and which he knows he can cope with by attempting to engage in some other job in respect of which his capacity is uncertain and unproven.
32 I do not find it unlikely or unreasonable that the plaintiff should prefer, in so far as his employment is concerned, to maintain the security of a position with which he is familiar rather than chasing the possibility of more remunerative employment which he may not be able to cope with.
33 It is put on behalf of the defendant that the plaintiff’s ability to continue with restricted duties following his injury attests to his ability to perform unrestricted activity with his arms on a long-term basis. I do not accept that position.
34 The evidence as to the plaintiff’s duties in employment with the defendant is that the plaintiff was not generally required to perform repetitive movements in the course of his employment with the defendant but was called upon to do so when issues arose with the breakdown of machinery in the room in which he was required to work.
35 Whilst the plaintiff gave evidence that those breakdowns occurred on a regular basis, I consider it not unlikely that given the nature of his duties the plaintiff may well have been able to continue to perform his work notwithstanding the fact that his symptoms were aggravated by that work for some period of time until the organic nature of his condition intervened to prevent him from doing so. In reality this is the history of the plaintiff’s presentation to his medical practitioners and in particular his general practitioner.
36 It is put that the plaintiff’s ability to continue to work as a disc jockey on a regular basis in the 12 months or so following his injury suggests that he was capable of undertaking repetitive activity. In my opinion there is no real merit in that position, given the relatively isolated nature of the physical activity involved in that work in combination with the fact that the plaintiff explained that his ability to do the work was dependent upon the fact that after suffering his injury he was always assisted in the work by his wife or some other person.
37 There is no suggestion in any of the medical evidence that the plaintiff has any tendency to either exaggerate his symptoms or the level of disability with which he presents. In fact there is a consistent opinion by the medical practitioners to the contrary.
38 Whilst various positions have been expressed by the doctors as to the plaintiff’s capacity for activity there is in my view an abundance of probative and persuasive evidence that the plaintiff retains only a restricted capacity for activity.
39 Given the nature of the condition with which the plaintiff presents which is nebulous to some extent as to the severity of the symptoms which it produces, it follows that if the plaintiff is a reliable and truthful historian he is probably the best judge of his true capacity for activity as that capacity is dependent upon the way in which activity aggravates his symptoms and the duration and level of any such aggravation.
40 In making that statement I wish to make it clear that whilst I give due weight to the medical evidence relied upon by the parties which details the expectation of the medical practitioners as to the plaintiff’s tolerance for repetitive activity, I am satisfied that if the plaintiff is a reliable historian the best evidence as to that tolerance comes from the plaintiff himself.
41 Given the plaintiff’s:
(i) history as the faithful servant of the defendant for some 20 years before his injury;
(ii) return to employment with the defendant after his injury which employment he maintained until it was retrenched by reason of the defendant’s acceptance that he no longer retained his pre-injury capacity;
(iii) subsequent attempts to find employment which were unsuccessful until his eventual return to full-time suitable employment which was effectively found for him by the defendants rehabilitation provider; and
(iv) the maintenance thereafter by the plaintiff of that employment;
I am satisfied that the plaintiff is entitled to call upon this history in support of the proposition that he is not in this instance engaged in a process which has been designed to deceive anyone as to his retained capacity for activity or the effect of his ongoing condition upon his ability to undertake repetitive functions with his arms.
42 In reality the plaintiff has acted to his detriment in the current application by finding work which demonstrates that he has retained capacity for real work and generates an income which at the very least has the potential of arming the defendant in its assertion that the plaintiff’s retained capacity for suitable employment is such that it precludes him from obtaining leave to commence a claim with respect to pecuniary loss.
43 For the reasons set out above, I am satisfied that I should accept the plaintiff as a truthful and reliable historian, as did the bulk of the medical practitioners who have assessed him, and apply primary weight to the plaintiff’s own evidence as to his capacity for activity when assessing the employment fields which now constitute suitable employment for him in the theoretical sense, and that I should do so unless I find evidence to the contrary to be more persuasive for some reason.
The current medical evidence as to the plaintiff’s capacity for suitable employment.
44 Dr Pickavance is the plaintiff’s treating general practitioner.
45 Whilst is put on behalf of the defendant that Dr Pickavance has opined that the plaintiff is fit to perform the work of the security operator on a full-time basis that opinion should be seen in the context of his report dated 9 March 2018 in which he:
· opined that the plaintiff remains permanently unfit for his pre-injury duties solely by reason of his injury; and
· accepted, without qualification, that the plaintiff was no longer able to ride a bicycle, to play squash, to mow his lawns or to play the occasional game of golf by reason of the fact that involvement in such activity exacerbate his symptoms.
46 He further expressed the opinion that the incapacity associated with his injury has stabilised.
47 In reality when the totality of the opinion of Dr Pickavance is considered, in my opinion he is doing no more than expressing an opinion of the plaintiff as fit to carry out the full-time work which he currently performs which in turn places no pressure on his arms or requires the repetitive movement of his arms.
48 A similar conclusion can be drawn with respect to the opinion expressed by Mr Brearley in his report dated 22 June 2018 as to the plaintiff’s capacity for activity.
49 In his report of April 2015 Mr Brearley had commented that the plaintiff was fit for forms of work which did not involve significant lifting or much pulling and pushing with the arms. He concluded his March 2018 report with the following comment as to the plaintiff’s capacity for employment:
“he is fit to continue with his job as a security officer, however if he were to lose this job he would have difficulty in finding suitable work outside the security area for he is not fit to do any manual labour as a result of the forearm injuries”.
50 Whilst in March 2015 Dr Thomas expressed the opinion that the plaintiff had a capacity for suitable employment, he did so recognising that the plaintiff would be restricted in his ability to function socially, domestically, and recreationally by reason of the condition in his arms, commenting that the plaintiff gave a very accurate account of what he was and was not able to do and that Mr Thomas accepted that account without hesitation.
51 The opinion of Mr Thomas gives support to the process which I have indicated I should adopt in assessing the plaintiff’s capacity for activity namely to do so on the basis that he is a truthful historian and the best judge of his level of capacity for activity.
52 Dr Poppenbeek as at March 2018 acknowledged that the plaintiff was fit for his current duties as a security guard which were full-time but involved minimal upper limb use commenting that:
· if the plaintiff had to exercise his arms frequently or repeatedly he would have to reduce his working hours; and
· the plaintiff was unable to undertake any work which involve strenuous or repetitive activity of either arm.
53 Dr Poppenbeek opined further that the plaintiff would have to be very careful in using vibrating equipment and that it was inappropriate to specify a lifting limit for the plaintiff because the combination of handgrip and rotation of wrist were relevant factors.
54 Dr Michael Bloom opined that the plaintiff was physically capable of undertaking a large range of employment occupations in which the physical demands were light and fitted within appropriate physical restraints.
55 When one examines the analysis by Dr Bloom of the various occupations dealt with in each of his reports, it is clear that he expresses caution in opining as to the range of work for which the plaintiff would be fit, essentially on the basis that the plaintiff should not be exposed to work involving repetitive activity with his arms.
56 Whilst Dr Bloom comments that the plaintiff had a safe capacity for full-time work in the vast majority of roles considered by him he did so on the basis that the demands involved in the various occupations fell within the following constraints fixed by Dr Bloom namely:
· Limit repetitive manual handling, pulling or pushing to loads or forces in excess of about 5 kg with the exposure of occasional exertions requiring 10 to 12 kg;
· prolonged heavy gripping;
· avoiding tools that transmit vibration.
57 Nowhere does Dr Bloom explain the methodology by which he set the restrictions identified by him above.
58 As I interpret the opinion of Dr Bloom, the first condition imposed by him certifies the plaintiff’s capacity to undertake repetitive manual handling involving pushing or pulling as a constant feature of his employment so long as the forces involved do not exceed 5 kg.
59 Employment of that nature involves activities more onerous than those which the plaintiff was required to undertake whilst carrying out his pre-injury unrestricted duties with the defendant. Whilst those duties did involve limited reasonably regular manual handling of weights of up to approximately 5 kg they did not involve constant repetitive manual handling.
60 It is clear that the plaintiff has proven his present, post-injury, theoretical capacity for work fixed by Dr Bloom to be beyond him in reality by reason of his experience in the defendant’s workplace.
61 The preponderance of the medical evidence to which I have referred earlier also satisfies me that the plaintiff is not fit for his pre-injury work.
62 It follows that I am satisfied that the analysis by Dr Bloom of the plaintiff’s capacity for the various employment activities described by him in each of his reports is based upon an inappropriately robust assessment of the plaintiff’s retained capacity for activity, and for that reason I should accord little weight to the opinion expressed by Dr Bloom as to this issue.
63 There is a general consistency in the medical evidence which I consider probative in this instance, namely that of Mr Brearley, Dr Thomas, Dr Pickavance and Dr Bloom upon the issue as to whether the plaintiff is a truthful historian who does not exaggerate his symptoms.
64 It was my strong impression of the plaintiff as a witness that he was truthful and reliable.
65 That impression is reinforced by the matters which I have previously referred as to the plaintiff’s working history and his behaviour in obtaining and maintaining employment since his retrenchment.
66 Given the position taken by each of these medical practitioners as to the reliability of the plaintiff in describing his symptoms I am satisfied that I should approach my analysis of the plaintiff’s retained capacity for employment on the basis that the plaintiff is reliable, not only as to his symptoms but also as to his capacity for activity by reason of the presence of those symptoms.
67 Dr Bloom accepted that the plaintiff was a truthful historian who did not exaggerate his symptoms. It is clear that the opinion expressed by Dr Bloom is probative on this issue. For the reasons which I have earlier referred however, I am satisfied that the opinion of Dr Bloom as to the plaintiff’s capacity to engage in the various activities which have been identified as giving rise to potential suitable employment is not really probative of anything other than the fact that the plaintiff is fit for appropriate work which is within his true capacity.
68 As to the measure of that capacity, as I have said earlier, I am satisfied that the plaintiff is probably the best judge given his experience as to his tolerance for activity.
Finding as to the plaintiff’s without injury earnings pursuant to the provisions of the act
69 It is agreed by the parties that the plaintiff’s without injury earnings in employment with the defendant should be fixed at $82,483.
70 It is put on behalf of the defendant that no allowance should be made for the plaintiff’s part-time employment as a disc jockey having regard to the history of his earnings in undertaking that work during the relevant window period in which the only year in which he generated a substantial income was the 2012 financial year in which he made $4,228 after tax.
71 It is put on behalf of the plaintiff that lack of profitability in the plaintiff’s business was not associated with his takings but rather with the expenses which were generated to allow those takings.
72 Is it is further put that the trend between 2009 and 2012 revealed that the expenses were diminishing at the rate of about $2000 per annum over that period.
73 The profitability of the business and the way in which the expenses were being incurred in the operation of the business was not explored in evidence in any detail.
74 It was the plaintiff’s evidence that it was his habit to plough back profits in order to grow his business.
75 Given the nature of the business, I consider it safe to draw the inference that primary expenses must have involved the purchase of capital items necessary to undertake the operation such as:
(i) equipment to allow the playing of music such as turntables or other music players;
(ii) speakers and other items of that nature;
(iii) an appropriate vehicle fitted to transport his equipment which is what the plaintiff had obviously purchased;
the expense associated with the purchase of which, once incurred, would not have been required to be repeated unless the item of equipment required updating.
76 It seems to me that this is the probable explanation for the reduction in expenses between the financial years 2009- 2012.
77 Given the longevity of the plaintiff’s business and the equipment which he had accumulated to allow him to perform his work, I have no doubt that the plaintiff’s business was important to him.
78 Having regard to the fact that the plaintiff has now disposed of the vehicle which he employed in the business, I am satisfied that the plaintiff has abandoned the business and that I should make an allowance for the potential profit available to the plaintiff by reason of the operation of the business had his injury not intervened.
79 In my view taking account of the operation of the business during the three year pre-accident window established by the Act, I am satisfied that that period demonstrated a pattern of marginally increased earnings and decreasing expenses. I am satisfied it would be appropriate to fix a figure of $1,500 as being the net without injury earnings available to the plaintiff in the operation of that business.[2]
[2]In fixing this figure I have not taken into account the pattern of post injury earnings by the plaintiff as I am satisfied that the plaintiff’s level of activity in the business was likely to have been adversely affected by reason of the combination of his symptoms and the need for the plaintiff make use of an assistant on each occasion upon which he attended a venue. Whilst I am satisfied that the combination of these factors may not have combined to adversely influence the plaintiffs earnings in the nine months which followed his injury, I am equally satisfied that they eventually would have done so, and in fact did so having regard to the plaintiff’s abandonment of the business.
80 On the basis of these findings I am satisfied that I should fix the plaintiff’s relevant without injury level of earnings for the purpose of the formula to be applied under the Act in the sum of $83,983 which, when reduced by 60% as required generates a figure of $50,389.80.
Which of the employment activities identified by the parties for my consideration constitute suitable post injury employment for the plaintiff.
81 As I discussed in the course of closing submissions with the parties I propose to give no weight to the opinions expressed by Mr Radley as to the plaintiff’s capacity for activity but merely to employ his report to deal with issues within his expertise, namely:
(i) those relating to the activities involved in the various occupations which I am required to consider; together with
(ii) any other statement within his relevant expertise.
82 I accept the opinion expressed by Mr Radley when referring to the concept of current work capacity that a number of criteria should be established as to any employment position in question namely:
(i) that the plaintiff must possess the minimum educational entry requirements and the necessary skill level requirements for the job;
(ii) that the plaintiff must be able to physically perform all of the work duties involved in the occupation on a full-time basis;
(iii) that the occupation must be reasonably available within the area in which the plaintiff might reasonably be expected to seek and attend employment on a full-time basis;
(iv) that the plaintiff must be able to attend the work on a regular and reliable basis.
83 I am satisfied in assessing suitable employment for the plaintiff that I should exclude activities involving continued driving. The plaintiff’s evidence is unequivocal that he does not retain the capacity for that sort of activity.
84 In so far as any mooted employment activity involves substantial continuous driving the plaintiff gave evidence that that activity was beyond him.
85 In October 2014 the plaintiff described to Dr Karna his capacity for driving as involving a capacity to drive for no more than 10 minutes without having to take one or other of his hands off the wheel to rest.
86 Dr Karna took no issue with the fact that the organic condition with which the plaintiff presented at that time operated so as to limit the plaintiff’s capacity for driving in a manner described by him and further expressed his opinion that the plaintiff’s condition had stabilised.
87 Whilst the plaintiff in his viva voce evidence suggested that his capacity for managing relatively isolated periods of significant driving may have increased since his assessment by Dr Karna he made it equally clear that he did not consider he retained a capacity for full-time work as a driver.
88 There is no other evidence as to the plaintiff’s capacity for driving other than that by Dr Bloom.
89 At the time of his examination of the plaintiff Dr Bloom obtained a history from him that in order to attend that examination the plaintiff had travelled by car for approximately one and three quarter hours.
90 The plaintiff told Dr Bloom that during the journey he had to rest one of his hands every 10 to 15 minutes and effectively drove with one hand on the steering wheel.
91 In commenting that he had formed “the strong impression that this man presents in a very straightforward manner without any attempt to embellish his symptoms or clinical signs and his history and clinical signs are consistent with the ongoing activity dependent forearm and risk pain secondary to a significant soft tissue crush injury in 2011,” Dr Bloom clearly accepted and took no issue with the history provided by the plaintiff as to his capacity and difficulty with driving.
92 I find Dr Bloom’s assertion to the effect that the plaintiff would, in these circumstances, be fit to drive a forklift or a truck on a full-time basis to be an expression totally inconsistent in logic when compared to the statements made in his report to which I have referred, and to confirm my previous comments as to the lack of persuasion by Dr Bloom in his analysis and identification of work which give rise to suitable employment for the plaintiff.
93 I am satisfied, given my previous comments as to the opinion of Dr Karna, when considered in the context of:
· the current opinion of Pickavance that the plaintiff is unfit even to ride a bicycle; and
· the plaintiff’s own evidence as to the difficulty that he has in driving long distances even on a casual basis;
that the bilateral condition with which he now presents in his upper limbs precludes him from engaging in any employment activity which involves any aspect of regular or significant driving as constituting suitable employment for the plaintiff.
94 It follows for these reasons that I am satisfied that the plaintiff does not have the capacity for employment as a forklift driver, which activity has been identified by Dr Bloom as requiring the plaintiff to manoeuvre continuously the forklift with one arm as he controls the forklift times with the other making it impossible for him to rest one arm in order to deal with his symptoms in the manner in which he had described to Dr Bloom.
95 As to the mooted work of a recycling truck driver a similar analysis applies. In addition to constant driving this work involves the dealing with weights of up to 20 kg or be with it infrequently.
96 It is clear that the plaintiff retains the capacity to work as a security guard in employment of the type in which he is now engaged which is essentially supervisory in nature and does not involve that any substantial or repetitive use.
97 I am satisfied that the plaintiff would probably possess the capacity to work as a control room monitor which appears to involve only light sedentary work and would not expose his upper limbs to any significant pressure.
98 The activities involved in work as security guard generally in my opinion fall into a completely different category to those currently required of the plaintiff.
99 Mr Radley describes a security guard engaging mobile patrolling as being required to drive a vehicle for extended periods of time to check doors windows and gates for unauthorised entry and to maintain order at venues. He describes the work involved as not being in the category of light in nature.
100 For the reasons which I have previously set out I am satisfied that the driving involved in this form of work operates to preclude that employment as being suitable for the plaintiff.
101 In addition Mr Radley opines that the performance of patrol work may involve the need to check numerous properties in the course of the shift.
102 I am satisfied that the totality of the medical evidence when viewed in conjunction with the plaintiff’s own evidence demonstrates that it is beyond the plaintiff’s capacity to perform the work required of a security guard in a general sense if any aspect of patrol work is required of him.
103 In the course of his evidence the plaintiff was taking to each of the activities required of a gatehouse keeper as disclosed in the Recouvre report and conceded when those activities were considered intellectually that he most probably had the capacity to undertake them.[3]
[3]See the plaintiff's evidence at T 77 – 79.
104 Patrolling the premises must involve the possibility of having to confront the presence of unauthorised persons upon the premises and such in circumstances having the physical capacity to deal with any situation which arises.
105 When the specifics of the job description were put to the plaintiff which involved a large volume of trucks passing the gatehouse which had to be logged via a keyboard and checked, I am satisfied when considered in its totality[4] was such that the plaintiff did not consider it had the capacity to do the tasks required of him unless he was accorded appropriate job rotation and rest.
[4] See plaintiff's evidence at T 80 – 85.
106 I am further satisfied taking into account:
a) my analysis of the medical evidence is set out above;
b) the evidence of the plaintiff it transcript 80 – 85;
that having regard to the description of the work involved, namely operating a gatehouse which received vehicles ;
(i) exiting the facility 24 hours per day seven days a week on the basis of a typical frequency of at least one per 10 minutes;
(ii) each of which had to be logged via computer and checked to ensure the security of load seals:
that the bilateral activity required of the plaintiff in performing those duties during a period of and during the period of an eight hour shift would be beyond him.
107 In so far as the defendant now seeks to rely upon the work assessment of a Gatehouse Security guard in Ballarat which is described as involving comparable physical demands to those to which I have referred above, I am satisfied that that work would be beyond the plaintiff.
108 Even were the plaintiff fit to undertake such duties I am satisfied for the reasons set out below that the income generated by that employment would be similar to that which the plaintiff currently receives and would disentitle him from commencing a proceeding claiming damages for pecuniary loss.
109 I make that statement being satisfied I should take a realistic view of the income which would be available to the plaintiff by way of overtime.
110 In my opinion the access of worker to overtime is always at the discretion of an employer not only as to its primary availability but also as to the level of which might be available.
111 It is beyond argument that the level of overtime which may be available to a particular employee or within a particular workforce:
(i) may alter in accordance with the level of industrial activity or the number of workers available to do a given task;
(ii) may be offered to a particular worker by reason of the presence of an exceptional capacity of a given worker;
(iii) may alter from week to week or month to month.
112 In circumstances in which, in my opinion, when fixing the income level which can be generated in post injury suitable employment, that level of income should be fixed on the basis of evidence which contains a degree of industrial security, not only as to the hourly rate in question but also as to the hours available to be worked.
113 In the absence of evidence which establishes that overtime payments are a secure and constant feature of the particular work which meets the definition suitable employment, I am of the opinion that the fact that overtime is available at any given moment in time should be ignored in assessing the income available in such work.
114 Even were I to be misguided in that approach, it is the plaintiff’s evidence that whilst overtime was available to him in his employment with the defendant his practice was for lifestyle reasons to work regular overtime commenting that he did so, “probably once a month”- “whenever he felt like it.”
115 In his current work the plaintiff is employed on the basis that he works a 40 hour week. Although there is no direct evidence on this issue, my strong impression of the evidence is that the plaintiff is probably working more hours now than he was in his employment with the defendant and in my opinion this again attests to the attitude of the plaintiff in attempting to minimise the effect of his injury upon his level of income.
116 Given both the plaintiff’s history and current practice as to the hours which he works in full-time employment, if overtime should be taken into account I am satisfied that no more than two hours per week of overtime should be factored into the theoretical wage available to the plaintiff in employment as a gatehouse keeper as that accords with the plaintiff’s current practice of working 40 hours a week.
117 It follows that the wage available to the plaintiff on that basis would be calculated as follows:
$41,7601. 20 -for 52 weeks with no overtime
$3043 -if working two hours overtime per week at $31.70 per hour for 48 weeks;
$44,804 per annum.
118 On the basis of the above analysis a range of income available to the plaintiff as a Gatehouse Security Officer is between $41,761.20 gross per annum without overtime and $44,804. gross per annum with overtime.
119 In the absence of any specific evidence as to this issue, I am satisfied that the same rate should be applied to the security work associated with the job description Control Room Monitor, which in my opinion most probably falls within the award description of Security Guard without overtime.
120 The occupation of production supervisor, as described by Mr Radley essentially involves the ability, if called upon, to undertake similar duties required of the plaintiff in his pre-injury employment with the defendant in which he was required to “fill in” for workers or to engage in manual handling if there was a breakdown in machinery.
121 It is clear that this description by Mr Radley of the duties required of a production supervisor are now beyond the plaintiff given not only his evidence but the preponderance of the persuasive medical evidence to which I have referred previously.
122 The occupation of a warehouse clerk as described by Mr Radley requires the plaintiff to have the capacity to engage in the regular handling of product of weights ranging from between 11.3 kg and 22.7 kg as products are moved handle stacked also involve repetitive keyboard activities.
123 I am satisfied that any occupation which requires the plaintiff to undertake the combination of these activities as an aspect of the plaintiff’s work duties (or one or other of them separately) would now be physically beyond the plaintiff given the combination of the plaintiff’s own evidence as to his retained physical capacity and the medical evidence which I have referred.
124 Even were the activities required of the plaintiff in this type of employment to be limited to continual keyboard activity:
(i) the Plaintiff’s evidence as to his tolerance for computer type activity on a persistent basis; and
(ii) my findings as to the relevant medical evidence;
satisfies me not only that continued computer work is likely to exacerbate the condition in the plaintiffs upper limbs but also that work involving activity of that nature does not give rise to suitable employment for the plaintiff.
125 It follows from my analysis above, that I am satisfied that the plaintiff is fit to undertake security work of the type which he currently undertakes and that involved in the activities required of a control room monitor and/or gate housekeeper assuming that the latter activity does not involve the significant use of his upper limbs or an obligation to undertake patrols of premises.
126 In reality I am satisfied that the plaintiff’s physical incapacity operates to largely preclude him from most aspects of work in the real world and that it is only by reason of his own diligence and the assistance given to him by his rehabilitation provider that he has been able to find employment of which he is capable.
127 In making that statement I find myself in agreement with the opinion of Mr Brearley expressed as at 22 March 2018, namely that the plaintiff is fit to continue in his current occupation, however should he lose this job he would have difficulty finding suitable employment as he is not fit generally for manual work.
128 For the reasons set out above I am satisfied that the plaintiff has established that the effect of the organic bilateral injury to his upper limbs the subject of this proceeding has been to occasion an economic loss which meets the definition of serious pursuant to the provisions of the Accident Compensation Act and accordingly that he is entitled to the leave which is sought in this instance.
129 I will hear the parties as to the precise order which should be made and also upon the issue of costs.
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