Lowrie v Victorian WorkCover Authority
[2016] VCC 1109
•9 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03819
| MARK LOWRIE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 August 2016 | |
DATE OF JUDGMENT: | 9 August 2016 | |
CASE MAY BE CITED AS: | Lowrie v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1109 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment of the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram with Mr J Valiotis | Arnold Thomas & Becker |
| For the Defendant | Mr A Saunders | Thomson Geer |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with R & F Plumbing Pty Ltd, trading as Laser Plumbing (“the employer”), in particular, on 16 February 2012 (“the said date”).
2 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function;”
3 The body function relied upon in this application is the lumbar spine.
4 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
5 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
6 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, “when judged by comparison with other cases in the range of possible impairments, [can be] fairly described, at the date of the hearing, as being “more than significant or marked, and as being at least very considerable”.
7 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
8 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
9 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
10 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
11 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
12 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
13 The plaintiff relied upon three affidavits and gave viva voce evidence and was cross-examined. His partner, Carla Pomare, swore an affidavit on 16 June 2015. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
14 The plaintiff is presently aged fifty-three, having been born in March 1963.
15 Having completed Year 11, the plaintiff became an apprentice roof-tiler and then worked as a roof-tiler. He subsequently did an adult apprenticeship and became a qualified plumber, and thereafter worked in that field.
16 On 26 September 2011, the plaintiff commenced work as a plumber with the employer. Prior thereto he had been living and working in Cairns, where he had worked for Raymond Plumbing for about a year, and did other plumbing work. The plaintiff worked regularly as a plumber for various employers on various sites and had a good work record. About 90 per cent of his plumbing work was done on larger building projects.
17 On the said date, the plaintiff suffered an injury to his right hip at Camberwell Grammar whilst working on a scissor lift with an apprentice. Whilst working on the lift, as the plaintiff turned to take some of the weight of the pipe the apprentice was struggling to hold, he felt acute pain in his right hip region (“the incident”).
18 The plaintiff initially attended Emergency at the Austin Hospital and was then treated at Bacchus Marsh Hospital, where an x‑ray was performed. Following discharge, he attended the Hospital for physiotherapy, which did not help his hip pain.
19 The plaintiff then attended his general practitioner, Dr Madhanpall, at Bacchus Marsh Medical Centre, who has continued to treat him since that time.
20 The plaintiff had further physiotherapy in Bacchus Marsh and was then referred to Mr Chia, orthopaedic surgeon, who operated on his hip on 2 April 2012 at the Epworth Freemasons Hospital (“the surgery”). Thereafter, the plaintiff had further physiotherapy.
21 The plaintiff was unable to work for about four months as a result of his injury, and then returned to work on reduced hours and restricted duties. His symptoms flared up again after about two months and he had to go off work. The employer did not offer him any further light work.
22 Prior to that flare-up, the plaintiff was initially allowed to use a lift to get to various levels of the workplace, and his position was a protected one. However, as time went on, he was required to use stairs when carrying things, and during that time he had the flare-up and required medical treatment. He had difficulty carrying his toolbox, which weighed around 30 kilograms, whereas before the incident, he could pick it up as if it was cardboard.
23 As at March 2014, the plaintiff’s general practitioner had certified him fit for 15 hours’ light duty a week.[3] The plaintiff would then have liked to have returned to the workforce, but the effects of his injury had so far made that impossible. He then thought he certainly could not return to plumbing work which involved going up and down ladders and steps, squatting, kneeling, bending and heavy lifting, and being on his feet all day.
[3]The hourly rate for a plumber was then $38 plus allowances
24 Work Able Consulting, engaged by WorkCover, helped the plaintiff for 26 weeks to try and get back to work, but could not find him any suitable employment.
25 During that time, the plaintiff obtained an excavator’s driver’s licence, but could not find any work in that area. He may have applied for 15 to 20 jobs and Work Able Consulting might have also applied for more jobs in that field. None of these applications were successful.[4]
[4]Transcript (“T”) 13
26 The plaintiff applied for work as a salesperson with plumbing suppliers with no success, but did not believe he could work on a sustained full-time basis in that role because of the heavy lifting involved and having to be on his feet all day.
27This plaintiff applied for a salesperson job with Bunnings at Melton. He was advised the job application was unsuccessful and was not offered a position.[5]
[5]T15
28The plaintiff agreed that he had the knowledge to work at Reece or another plumbing supply shop by virtue of being a fully qualified plumber and, before that, a roof tiler, but he did not have the physical capacity to do so.[6]
[6]T14
29The plaintiff has applied for about ten other jobs in plumbing supplies, recently with IPAR and before that with WorkAble, but “no-one would give him a look-in.” A number of possible employers did not want “the responsibility of an injury.”[7]
[7]T14
30The plaintiff has also given his resume to Masters at Melton and also the local Mitre 10 in Bacchus Marsh maybe two years ago, but he did not have any record of those applications. He would have tried these jobs if he had been offered a job part time, if not full time.[8]
[8]T16
31In around Easter 2014, the plaintiff had tried driving a bus via MatchWorks though Centrelink. He was required to drive very disabled adults in a bus, collecting them in the morning from their homes and driving them to a community centre. At 3.00pm, he collected them from the centre and drove them home, finishing work at about 6.00pm.
32The plaintiff did this job for about six weeks and was paid for the hours worked. He thought the hourly rate was $18-$22 and he cleared $600 per week which he declared.[9]
[9]T20
33The plaintiff had great difficulty with hip pain whilst seated driving the bus. He had to lie down and walk around in the middle of the day to be able to go back to work at 3.00pm. When he got home he was “buggered” until he had to go back and drive again.[10] The job was too hard for him because of his hip.[11]
[10]T18
[11]T21
34The plaintiff was shown a letter dated May 2014 from Merrimu, the disability employer involved with the bus driving job. The plaintiff denied that company had any concerns about his job performance or that his employment was terminated because of poor performance.[12]
[12]T22
35The plaintiff had told Merrimu before the meeting described in the letter that he could not keep driving the bus because of his hip pain and that by the end of work his pain was worse. The meeting took place but the matters referred to in the letter were not discussed.[13]
[13]T20
36Merrimu never raised any concern about the plaintiff’s work performance. He agreed he was paid a week in lieu of notice, but denied that was because his employment was terminated.[14]
[14]T20
37The plaintiff has looked for work since. If there is a job available to suit his physical abilities or disability, he will apply for it. There is nothing available for him to do. He disagreed he was not serious about working.[15]
[15]T24
38 The plaintiff completed a two-day traffic stop sign course via MatchWorks which he paid for himself. However, he did not think he could do that work due to his hip injury, because he had problems standing in one position for an extended period. His ticket has expired but he would have no difficulty completing the course again.[16]
[16]T17
39The plaintiff had tried his best to get WorkCover to retrain him in an alternative role, but that had not been forthcoming. A security course through IPAR was approved by Allianz but the plaintiff was advised the training was too physical for him to undertake and they would not take the risk of the training with him because of his hip injury.[17]
[17]T18
40 The plaintiff loved working in plumbing, and missed not being able to work as a plumber. He worried about realistically alternate work he could do.
41 As of June 2015, the plaintiff had applied for about six or eight jobs via the internet, but had not been successful in getting an interview. He wanted to work, but, bearing in mind his vocational and educational background and his injuries and limitations and ongoing pain, he did not know what suitable employment there was for him.
Future work
42The plaintiff agreed he might be able to work as an excavator driver if given the opportunity. He wanted to try a job to see what he could do because he wanted to work.[18]
[18]T13
43 The plaintiff did not think now he would be able to sit in the excavating machine, because it is a very tight confined space and shook a lot when driven.[19] Excavator work could involve driving over anything from flat to mountain terrain and the roughness of the ground would impact on his ability to do that sort of job.[20]
[19]T26
[20]T25
44 The plaintiff would not be able to stand on his feet all day showing customers around Bunnings or a similar trade supply shop job because of his pain. He did not think he could stand for more than an hour in such a job.[21]
[21]T26
45The plaintiff would have a problem working all day as a stop/go sign man. He would not be able to stand up for eight hours. He thought his capacity to stand in the one spot was about half-an-hour or three-quarters of an hour doing a job like a stop/go sign holder. Any such jobs are not part time. If there was a part time job, he probably could do it. He was seeking that sort of work through MatchWorks when his ticket was valid.[22]
[22]T17
46The plaintiff has no real problems driving short distances. He can drive to the shops and visit his mother locally.[23] However, his hip slows him down when he wants to drive further distances. He can drive his car, but he does not drive his partner’s car because it has totally different seating.[24]
[23]T11
[24]T12
47The plaintiff would not be able to do another driving job because he could not sit in a bus or a car for a long time. He now has a lot more pain and a lot less movement in his hip. He would be probably lucky to last half-an-hour now in a driving role before experiencing increased hip pain.[25]
[25]T27
48 The plaintiff agreed he had recently had a Total and Permanent Disablement (“TPD”) payment and denied he was quite happy to live on that money until his case settled.[26]
[26]T24
The pain
49 In his most recent affidavit sworn 25 July 2016, the plaintiff described continuing to suffer ongoing pain and disability in his right hip, which varied in severity but was never pain free. He thought his right hip was gradually deteriorating, and had been advised there was a bony growth which would require surgery to trim. He had also been advised by a number of doctors that he was looking at a right hip replacement down the track, but should persist with pain as long as he could because of his young age.
50 Whilst the plaintiff has had a right ankle injury in 1994 and had fusion surgery, right ankle pain is no longer an issue for him.
Current treatment
51 The plaintiff sees his general practitioner, Dr Madhanpall, regularly, usually monthly. He continues to certify the plaintiff unfit for all work. Since the Medical Panel decision on 11 March 2015, the plaintiff continues in receipt of weekly payments.
52 Dr Madhanpall also continues to prescribe medication, in particular Tramadol 50 milligrams, depending on the plaintiff’s pain level. The plaintiff takes four tablets a day, and on a bad day can take up to eight tablets. He ceased Temazepam for fear of addiction. He also used to take Tramal, but it caused him to vomit and suffer intestinal pains.
53 The pain-relieving medication provides the plaintiff with only limited and temporary relief from the severe symptoms of constant but variable pain.
54 The plaintiff’s pain restricts him in almost every aspect of his life. His ability to walk is restricted, and he tends to walk with a limp. Walking a longer distance is more painful, and thus he limits himself to about half a kilometre where possible.
55 Because of his hip injury, the plaintiff has to avoid bending and also lifting heavy weights, and squatting is difficult. He cannot go up and down a ladder more than once without a lot of pain, and going up and down stairs is difficult and causes a marked increase in right hip pain. The situation is similar if he bends for more than 10 minutes, and he is very restricted in what he can do.
56 The loss of mobility has also meant the plaintiff has difficulty controlling his weight, and he believes he now weighs about 135 to 150 kilograms. The more weight he carries, the greater the strain on his hip, and the deteriorating condition of his hip means his capacity to walk and exercise to reduce weight is increasingly limited.
57 The plaintiff’s sleep is affected virtually nightly by pain. He no longer uses Temazepam, and therefore has interruptions to his sleep pattern. When awake, he feels tired, lethargic and unrefreshed.
58 Because of his hip problems, the plaintiff’s intimate relations with his partner have been adversely affected.
Activities
59 The plaintiff still has a motorbike, which he previously enjoyed riding; however, he now finds it too painful and has had to greatly limit his riding.
60The plaintiff has not been on his Triumph America 865cc motorbike for about three months. It is a 2007 model cruising motorbike on which he can sit comfortably upright and straight. His hip slows down his riding and also his ability to go but it has not stopped him riding completely.[27]
[27]T10
61The plaintiff used to ride his motorbike three or four times a week. He did not tell Dr Entwisle that was still the situation in July this year.[28] He told him he goes for an occasional ride.[29]
[28]T9
[29]T25
62 The plaintiff likes to do tinkering with his bike and car in the shed at home. He could be in the shed every day; not necessarily working on the motorbike but always doing something like making small timber cupboards or something for his partner.[30]
[30]T10
63The plaintiff used to restore old cars but it is twelve months since he had one at home.[31] He had problems crawling around to do restoration work and often has to stop what he is doing because of hip pain and have a rest. He cannot spend a day working on a car or motorbike like he used to, and now can do so only 15 minutes to probably three-quarters of an hour, because he has hip pain and he cannot concentrate on what he is doing.[32]
[31]T11
[32]T25
64 Until about eight months ago, the plaintiff assisted his partner on a regular basis at swap meets, where she sold motorbike accessories and clothing. These meets took take place in country football ovals or Rotary clubs in places such as Lancefield, about three-quarters of an hour away from Bacchus Marsh. When attending such meets, the plaintiff would spend five hours or so sitting helping his partner.
65 The plaintiff used to enjoy playing golf, having played since the age of five and being from a golfing family. He played a lot of golf in Cairns, regularly playing 18 holes about every fortnight, and walked the course, with a handicap of 11. After returning from Cairns and before the incident, the plaintiff had not played golf, because he had not organised himself to get into a regular game, but he intended to do so.
66 Before the incident, the plaintiff enjoyed walking very much, frequently going with his partner, fossicking for gold or other things.
67 Pre-injury, the plaintiff occasionally went fishing, particularly in a boat. This activity is no longer available to him as a recreational pursuit. He has tried to go fishing with his partner but it was too difficult because of his pain walking on rocks and uneven ground. He also now avoids camping, which he previously enjoyed.
68The plaintiff enjoys spending time watching motor sports on television. He does most things around the house as he has no choice, but suffers afterwards. He lives in a unit with not much of a garden to speak of, but if he did a bit of light gardening, he would suffer afterwards with pain and soreness and then have to sit down and have a rest.[33]
[33]T13
69 The plaintiff continues to be considerably disabled by reason of his right hip condition. He believes, having regard to his age, vocational skills, and persisting and deteriorating injury status, his capacity to return to work is looking increasingly bleak. He remains certified unfit for all work.
Summary of taxation returns
Year Ending 30 June Gross Income from Personal Exertion 2008 $11,143 2009 $60,523 2010 $37,396 2011 $68,877 2012 $46,648 2013 Nil 2014 Nil 2015 Nil
Lay evidence
70 The plaintiff’s partner, Carla Pomare, swore an affidavit on 9 June 2015. Ms Pomare confirmed that she and the plaintiff have been together since about October 2011 when he returned from Cairns.
71 Ms Pomare confirmed that prior to the incident, the plaintiff was a happy, outgoing, and very strong man. They did all sorts of activities outdoors together, including long motorbike rides, fishing, and fossicking for gold in the bush. Further, the plaintiff loved his job as a plumber, and he is very upset that he can no longer work in this role.
72 Since the incident, the plaintiff is moody and often in pain. She sees him lie down around the house. Although he is not one to complain, he complains about pain every day. He is awake in the middle of the night in bed, and she gets woken up by him moving due to his hip pain. Since the incident, their intimate life has been impacted. It is now virtually non-existent, having previously been regular. This situation upsets them both.
73 The plaintiff does not like sitting around the home doing few activities. His mood has deteriorated following the incident.
74 The plaintiff has developed a bad limp since the incident and his weight has increased greatly. Their social life has been affected, with the plaintiff much slower doing things. Prolonged sitting or walking is hard for him. She sees him take regular medication, and when he takes his night-time medication he is drowsy and quite drugged the next day.
Treaters
75 The plaintiff’s general practitioner, Dr Madhanpall, has diagnosed the plaintiff’s condition as musculoligamentous tear and bony avulsion involving the right hip.
76 Dr Madhanpall is presently of the view that the plaintiff is unfit for work. He certified on 1 June 2016 that the plaintiff is unable to perform any functions without modifications, and he is 100 per cent incapacitated for plumbing or any physical work as per Mr Kossmann’s report. On that certificate, the diagnosis was soft tissue injury of the right hip.
77 In May 2016, Dr Madhanpall reported that he thought the plaintiff had a very poor prognosis with regard to returning to pre-injury duties, and that he should have a reasonable to satisfactory prognosis with regard to general lifestyle restrictions.
78 Dr Madhanpall considered the plaintiff’s condition had stabilised and he needed regular analgesia and Tramal 50 milligrams, and he certainly experienced flare-ups in his pain.
79 Dr Madhanpall thought the plaintiff’s injuries most likely susceptible to further deterioration, and noted the plaintiff would experience post-traumatic related arthritis at an earlier age.
80 In Dr Madhanpall‘s view, the plaintiff would have wanted nothing more than to be back into the workforce. He had had to deal with his pain, his change, and restriction in his abilities to perform work at home and daily duties, and he had also had to deal with his slow progress in an attempt to return to some sort of work a few years ago.
81 On 2 April 2012, Mr Chia, orthopaedic surgeon, performed a right hip arthroscopy, performing a labral repair, cam resection, ligamentum teres debridement, chondroplasty, and removed the intracapsular ossification.
82 On the last review post-surgery in September 2012, Mr Chia noted the plaintiff had gradually increased his work capacity from light to full-time work a month earlier. Initially, he was progressing well without any problems, but in the last few weeks, the plaintiff had noticed increasing right hip pain.
83 Mr Chia recommended the employer alter the plaintiff’s work practices to avoid deep squatting and bending over to carry weight.
84 Mr Chia diagnosed a femoroacetabular impingement with a cam lesion, a torn acetabular labrum, and a partial ligamentum teres tear. He thought the lesion could be caused or aggravated by work, and that the injury sustained during the course of employment was consistent with the acute injury seen during the surgery.
Medico-legal examiners
85 Dr James Rowe, specialist occupational physician, examined the plaintiff on the defendant’s behalf in September 2012.
86 Dr Rowe then considered the plaintiff would never return to pre-injury duties, and might resume normal hours but not normal duties.
87 Dr Rowe thought there were no psychosocial factors.
88 Dr Rowe noted that the plaintiff had not been offered any work in suitable duties. He did not have a job to go back to, but was actively seeking employment.
89 Dr Rowe thought that if the plaintiff could find permanent full-time employment he would return to it immediately, noting the plaintiff may have to consider retraining or education and/or working in some other aspect of the plumbing business, maybe in a plumbing supply, teaching, or some other aspect of that occupation.
90 Mr Peter Scott, senior consultant surgeon, examined the plaintiff on the defendant’s behalf in May 2013 for the purposes of an AMA assessment.
91 Mr Scott thought the plaintiff was genuine and keen to return to the workforce. He did not comment on the plaintiff’s capacity for employment.
92 Mr Clive Jones, orthopaedic surgeon, examined the plaintiff in December 2013, January 2014, and most recently in July 2016.
93 Mr Jones considered the condition affecting the plaintiff was femoroacetabular impingement resulting in early degenerative change affecting the right hip. He thought the prognosis was reserved, and that it appeared a hip replacement will be the long-term outcome, but it was not considered to be necessary at the present time.
94 Mr Jones considered that the plaintiff was not fit for his pre-injury duties as a plumber. Even after successful arthroplastic surgery, he thought it doubtful whether the plaintiff would be able to return to plumbing work, and he did not believe he was fit for full-time alternate duties. He did not think the plaintiff was capable of consistently working between 16 and 32 hours or more per week.
95 From a physical point of view, Mr Jones did not think the plaintiff was currently capable of carrying out any of the employment options in the NES June 2015 report, but may be able to do so after successful hip surgery had been carried out. He noted the plaintiff’s use of Tramal had increased in quantity since he was last seen. He also noted the plaintiff did obtain part-time work driving a bus but found that too fatiguing, and he resigned after a short time.
96 Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in June 2015.
97 Mr Kossmann diagnosed pain and movement restriction of the right hip, on the basis of degenerative changes of the right hip joint and heterotopic ossification along the gluteal tendons.
98 Mr Kossmann thought the plaintiff’s prognosis was poor and that he seemed to be developing symptoms of an advancing osteoarthritis in his right hip joint. He recommended referral to an orthopaedic surgeon with a view to removing the large ossification on the right side of the hip, and in the long term, thought it most likely the plaintiff would require a total hip replacement.
99 Mr Kossmann considered the plaintiff had no work capacity to return to work as a plumber on the work site. He was not able to walk for long distances on uneven ground, up and down stairs, or on inclines, declines, or climb up and down stairs, kneel, squat, or carry heavy items weighing more than 5 kilograms. He was not able to sit for more than one to one-and-a-half hours. Mr Kossmann regarded the plaintiff as 100 per cent incapacitated.
100 Dr Grant Ramage, consultant occupational physician, examined the plaintiff in June 2015.
101 Dr Ramage noted the plaintiff’s right hip injury was quite complex, and he would leave the exact diagnosis to the skill of a qualified orthopaedic surgeon.
102 Dr Ramage confirmed the plaintiff certainly has no capacity to perform the full duties of a plumber at present.
103 Dr Ramage would agree with Dr Madhanpall that the plaintiff’s current capacity for work was probably correct, in that he may be able to commence a graduated return to work again, three days a week for four hours, as long as he was not doing repetitive duties or prolonged sitting for more than an hour, including driving time. He thought the plaintiff could also not walk on uneven surfaces, climb stairs or ladders, or lift more than 10 kilograms from ground, or 20 kilograms from waist level.
104 Dr Ramage considered the plaintiff’s future prognosis would be largely dependent on any surgical procedures that could be undertaken to remove the calcification lateral to his right hip joint and prevent it from rapidly recurring. He suggested obtaining Mr Chia’s advice in that regard.
105 Dr Ramage did not believe the plaintiff’s condition had stabilised, and, if anything, it was worsening since the surgery. Any future outcome would depend on any further surgical techniques available to assist in removing the extensive calcification. Given the extent of recalcification since surgery, he thought there was a likelihood of further deterioration.
106 Mr Bruce Love, orthopaedic surgeon, examined the plaintiff in July 2016.
107 Mr Love thought the plaintiff had now developed ongoing symptoms and there was associated pathology, demonstrated principally by way of calcification of the capsule, but there was undoubtedly ongoing pathology within the right hip following the incident.
108 Mr Love thought the only further treatment that could be offered would be a hip joint replacement, but that would not be recommended at this stage because of the plaintiff’s age and body mass.
109 In summary, Mr Love thought the plaintiff had intra-articular hip pathology on the right which was a consequence of the incident. In his view, the plaintiff is not capable of working as a plumber and would have difficulty working even in a sedentary role.
110 The prognosis in Mr Love’s view was such that the plaintiff would almost certainly come to hip joint replacement. He did not consider the plaintiff’s condition stable in view of anticipated future surgery.
111 The Medical Panel determined on 10 September 2013 that the plaintiff had a 4 per cent whole person impairment resulting from the accepted right hip injury.
112 On 11 March 2015, the Panel determined the plaintiff was suffering from aggravation of early osteoarthritis of the right hip joint relevant to the claimed injury, and that he had an incapacity for his pre-injury work.
113 Dr Michael Epstein, psychiatrist, examined the plaintiff in July 2016.
114 Dr Epstein thought as a result of the incident, persisting symptoms, and inability to work, the plaintiff had developed a Major Depressive Disorder of moderate severity. He considered the plaintiff’s mental state would make it difficult for him to return to work in any capacity because he was unmotivated, irritable, fatigued, and had problems with memory and concentration.
The Defendant’s medico-legal evidence
115 The only orthopaedic opinion relied upon by the defendant was that of Mr Polke, orthopaedic surgeon, who examined the plaintiff in April 2016.
116 Mr Polke thought the plaintiff had some work capacity for alternative work but not his pre-injury duties. He considered that the plaintiff would be able to work in alternative duties, avoiding climbing stairs and ladders, working in confined spaces, and prolonged standing and walking. He thought that capacity for alternative or modified duties was for full-time work.
117 Mr Polke concurred with the Medical Panel’s opinion. He did not believe the plaintiff’s condition had improved or there had been a change in his work capacity since he was examined by the Panel: in fact, the plaintiff had since developed heterotopic ossification in the abductor tendons.
118 Having perused the August 2012 IPAR report, Mr Polke concurred the plaintiff could be employed as a motorbike driving instructor as he had considerable motorbike driving skills, a ticket inspector, or as a sales assistant.
119 The plaintiff was examined by psychiatrist, Dr Entwisle, in July 2016.
120 Dr Entwisle noted the plaintiff spoke of his strong motivation to return to work.
121 Dr Entwisle thought the plaintiff did not present with a psychiatric condition, and from a psychiatric perspective alone, he was fit for pre-injury duties and had a capacity to perform the duties set out in the NES vocational assessment report.
Merrimu letter
122 The letter from Merrimu dated 19 May 2014 reads:
“This is to confirm the outcome of the meeting with you, Merrimu Campus manager, Russell Arandt and myself on Wednesday 14 May 2014.
The meeting was to discuss issues raised around your poor performance and unacceptable behaviour together with risks for Merrimu. It was determined that braches of Merrimu policies and procedures had occurred. Taking this into consideration along with your performance and your responses, your employment was terminated on 14 May 201 within your probationary period. You will be paid one week’s pay in lieu of notice.”
The Defendant’s vocational evidence
123In a NES vocational assessment report of 28 August 2012, identified suitable employment options in order of priority were:
·plumber maintenance
·foreman, plumbing
·sales representative, plumbing
·mobile plant operator
·truck driver.
124In the NES vocational assessment report of 2 June 2015, identified suitable employment options in order of priority were:
·trade counter sales, plumbing
·sales representative, plumbing industry
·motorcycle postman
·plumbing estimator
·foreman, plumbing industry (commercial).
125In the IPAR 130-week vocational assessment report of 29 February 2016, identified suitable employment options assessed as being suitable for the plaintiff were:
·customer service
·sales assistant
·sales representative
·security officer (retraining required).
Overview
126There is no dispute that the plaintiff suffered a compensable injury to his right hip on the said date.
127The condition is complex having been diagnosed by treating surgeon, Mr Chia, as a femoroacetabular impingement with a cam lesion, a torn acetabular labrum, and a partial ligamentum teres tear. In more recent times, there has been the development of ossification which may require surgery, and ultimately a right hip replacement appears likely.
128The plaintiff is presently in receipt of weekly payments following a Medical Panel decision in March 2015 opinion that he has no capacity for his pre-injury duties.
Credit
129As Maxwell P said, in Haden Engineering Pty Ltd v McKinnon:[34]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[34](2010) 31 VR 1 at paragraph [12]
130 Save for the plaintiff’s evidence as to the circumstances of the cessation of his employment with Merrimu, there was no attack on the plaintiff’s credit. However, the plaintiff denied his employment was terminated due to poor performance and there was no affidavit evidence relied upon by the defendant in this regard.[35]
[35]T35
131I found the plaintiff to be a truthful, genuine witness who, in my view, has made genuine attempts to get back to the workforce and was upset he no longer had his former trade as a plumber. Further, he gave a straightforward account of his pain and disability relating to his hip injury.
132The defendant admitted having conducted surveillance on four occasions for fifteen hours between March 2014 and July this year of which there was a total of 30 minutes film, no film was shown during the hearing.[36]
[36]T36
Pain and restriction
133 Maxwell P, in Haden Engineering Pty Ltd v McKinnon,[37] set out that the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain both in court and to doctors.
[37](supra) at paragraph [11]
134 I accept, despite surgery in 2012, the plaintiff has continued to suffer significant hip pain, varying in intensity and with activity. Of recent times, his condition has deteriorated and medical opinion is that it will continue to do so. Surgery for the ossification has been suggested and I accept that a hip replacement will be the likely long term outcome as Mr Jones and others opined, despite the lack of operating surgeon Mr Chia’s opinion in this regard.[38]
[38]T31
135 However as counsel for the plaintiff submitted, the longer the plaintiff has to wait for replacement surgery, the longer he will experience significant ongoing pain.[39]
[39]T33
136As a result of his hip injury, the plaintiff is limited in his ability to stand or sit for prolonged periods and he is unable to climb ladders or walk on uneven ground.
137 Whilst counsel for the defendant submitted the plaintiff’s hip impairment could not be considered serious as he has retained the ability to enjoy a range of activities such as motor bike riding and tinkering with cars and bikes and he can still do things around the house,[40] counsel for the defendant conceded the plaintiff no longer has the capacity to work in his trade as a plumber[41] and that there could not be any argument that this was not a serious pain and suffering consequence.[42]
[40]T30
[41]The consensus of medical opinion is to this effect
[42]T30
138 I am satisfied that this interference with employment resulting from the plaintiff’s pain and restrictions is a serious consequence.
Loss of earning capacity
139Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a)at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b)after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
140The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
141The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
142“Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
143It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
144 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. See Barwon Spinners Pty Ltd & Ors v Podolak.[43]
[43](supra) at paragraph [70]
145 The parties agreed that the “without injury” earnings figure was 60 per cent of $1,331.15, namely $799 being the PIAWE figure set out in the Conciliation Outcome Certificate dated 3 May 2016.[44]
[44]T5
146 Counsel for the defendant freely conceded that the plaintiff is not fit for pre-injury duties, but it was submitted that he had a capacity for suitable employment in one or two areas: working as a bus driver, and also in a plumbing supply store.[45]
[45]T29
147 It was submitted that the plaintiff was eminently qualified to do bus driving, and had the capacity to do so, and was doing so until he lost the job for reasons that had nothing to do with his work capacity.
148 Further, the plaintiff is qualified to work as a sales assistant in a store such as Bunnings and he freely conceded in cross-examination he could do that job, although his evidence in that regard changed somewhat in cross-examination.[46]
[46]T29
149I am satisfied that the plaintiff, whilst attempting bus driving over six weeks, had difficulty with prolonged sitting because of his hip pain and needed to lie down in the middle of the day and at the end of the day. Because of these difficulties, he was unable to continue in that job.
150In the absence of any affidavit evidence in this regard and the plaintiff’s denial of the matters set out in the correspondence from Merrimu, I am not satisfied that his plaintiff’s employment was terminated because of any misconduct or failure to comply with that organisation’s policies.
151The plaintiff’s general practitioner presently certifies him totally unfit for all physical work, a view shared by Mr Kossmann. Professor Love thought the plaintiff would have difficulty even in a sedentary job. Mr Polke is alone in the view that plaintiff has a capacity for alternate duties on a fulltime basis.
152Mr Jones upon whom the defendant relies, does not consider the plaintiff has the capacity to work full time alternate duties and presently does not have a work capacity in terms of hours.[47]
[47]T32 – described by counsel for the plaintiff as a “suicide bomber in the defendant’s camp”
153In my view, the plaintiff’s present sitting tolerance is such that he would be only able to work a couple of hours in a driving role without having to stop and rest because of hip pain and discomfort.
154I am also satisfied that whilst the plaintiff has applied for jobs at Bunnings and other plumbing supply stores and is willing to try this type of work, he would be unable to perform those duties on a sustained basis because of his inability to stand for longer than an hour. Further, he would be unable to engage in lifting of heavy items in a store.
155Whilst a number of other jobs were suggested by IPAR and vocational experts, the plaintiff was not cross examined as to his suitability for such roles.[48]
[48]T32
156 The plaintiff is now fifty-three. His hip is declining in terms of functionability and the pain he is enduring in relation thereto.[49] I accept in those circumstances that his capacity is for very limited part-time work such that he would be unable to earn anywhere near $799 a week in any suitable position.
[49]T32
157Taking into account all the evidence, I am satisfied on a permanent basis that the plaintiff does not have the capacity to work hours where he would earn in excess of $799 per week, and he therefore has suffered the requisite loss of 40 per cent.
158 Clearly, if a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd[50] and Advanced Wire & Cable Pty Ltd v Abdulle.[51]
[50][2009] VSC 454 at paragraph [147]
[51][2009] VSCA 170
159I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
160 In terms of rehabilitation and retraining onus, it was submitted that if the plaintiff had a job then lost it due to some misconduct he could not be said to have satisfied the requirements under (g).[52]
[52]T30
161Counsel for the defendant submitted the plaintiff had not discharged the onus in this regard as he was fit to work as a bus driver and had ceased that work because his employment was terminated, not because of any hip problem doing his duties. As stated earlier, I do not accept this submission.
162In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
163Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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