Macdonald v Marriott Tree Equipment
[2021] VMC 3
•6 APRIL 2021
IN THE MAGISTRATES’ COURT OF VICTORIA
AT LATROBE VALLEY
WORKCOVER DIVISION
Case No. L10282488
| Matthew Macdonald | Plaintiff |
| v | |
| Marriott Tree Equipment | Defendant |
MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY OMC |
DATE OF HEARING: | 25 & 26 FEBRUARY 2021 |
DATE OF DECISION: | 6 APRIL 2021 |
CASE MAY BE CITED AS: | Macdonald v Marriott Tree Equipment |
MEDIUM NEUTRAL CITATION: | [2021] VMC 003 |
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CATCHWORDS – Termination of weekly payment after 130 weeks on the grounds that the worker has a ‘current work capacity’ and if he has ‘no current work capacity’ it is not likely to continue indefinitely – Workplace Injury Rehabilitation and Compensation Act 2013.
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr Haddad | John McCristal Injury Lawyers |
| For the Defendant | Ms Kusiak | Minter Ellison |
HIS HONOUR:
This matter proceeded via the Online division of the court on 25 and 26 February 2021. Mr Macdonald gave evidence and his lawyers tendered a Court Book comprising 158 pages. The defendant tendered a Court Book comprising 197 pages together with three surveillance investigation reports from Elite Investigations dated 22 February 2018, 19 July 2018 and 15 June 2020.
The issue for the court to determine is whether, as a consequence of back and right hip injuries and an asserted psychiatric injury sustained by Mr Macdonald in the course of his employment with the defendant on 16 May 2016, he has a ‘current work capacity’ or ‘no current work capacity’ which is likely to continue indefinitely. Liability for Mr Macdonald’s claim was accepted by QBE Workers Compensation on 8 June 2016 and he received weekly payments for all periods of incapacity until they were terminated on 25 January 2020 in accordance with a 130-week termination notice dated 18 October 2019 issued by Xchanging Integrated Services Victoria Pty Ltd.
Mr Macdonald gave evidence that he is 50 years of age, married and has 15 children, 8 of whom are still living at home. He told the court that he was born and raised in NSW, only completed Year 7 schooling, left school when aged 14 years and has no formal qualifications. He gave evidence that he has a driver’s licence and heavy articulated truck licence and has previously worked in sawmills, abattoirs, a milk factory and as a furniture removalist. He said that these jobs involved labouring and maintenance type roles.
Mr Macdonald told the court that he commenced employment with the defendant in 2011 as a workshop manager. He said the role involved mainly managerial duties, but he was required to set up jobs for the mechanics, maintain and service the machines and perform basic maintenance work. He estimated that 80% of his duties involved maintenance work and 20% management. Mr Macdonald confirmed that he lodged a Workcover Claim Form dated 26 May 2016 alleging that he had sustained injuries to his right hip and lower back as a result of “loading tool box on Ute – when getting off back of Ute stepped on tow hitch – slipped and fell on hip and back”. He told the court that despite suffering pain he continued to work but his condition worsened which resulted in him attending a doctor who certified him unfit for work. He said that he managed to return to work on restricted duties for a few months but was unable to continue because of the pain and subsequently resigned because of a “management issue”.
Mr Macdonald gave evidence that he subsequently obtained employment with Global Machinery Sales as a Manager but ceased work in November 2017 after 12 months because of increasing leg, hip and back pain and has not worked since. He gave evidence that he is unable to work because of the pain he continues to experience in his back and hip, that he suffers from anxiety and depression and is prescribed medications including, Panadol Osteo and Pristiq by Dr Elsamman. Mr Macdonald told the court that he was referred to Mr Tang, Orthopaedic Surgeon for his hip problems and Dr Wong, Neurosurgeon for his back pain and has previously received physiotherapy and hydrotherapy treatment. He said that he continues to experience constant back pain, which is aggravated by twisting, walking on uneven ground, sudden movements, sitting and laying straight in bed. He told the court that he rates his pain level as 6/10 and on average his pain level is “very bad” at least 3 days per week. Mr Macdonald rated his hip pain as 4/10 but stated it varies depending on his body position. He told the court that sitting, twisting and sideways movements can aggravate his pain and that on average he experiences real problems with his hip 2 to 3 days each week. Mr Macdonald told the court that as a result of his back and hip pain he suffers from sleep disturbance, needs assistance in dressing, cannot do a number of household chores that he used to do and can only walk for 10 minutes without experiencing pain. He said that he does not believe he would be able to return to work on a consistent and reliable basis because of his back and hip pain.
During cross examination, the court was shown surveillance footage taken on 12 July 2018, 30 July 2018 and 11 June 2020 and as previously indicated, the defendant tendered surveillance reports from Elite Investigations dated 22 February 2018 (surveillance conducted on 7, 8, 11 & 13 February), 19 July 2018 (surveillance conducted on 12 & 13 July) and 15 June 2020 (surveillance conducted on 11 & 12 June). The court was shown 17 minutes of surveillance footage taken on 12 July 2018. The Investigation Report indicated that surveillance was conducted between 11.45 am and 5.30 pm that day. The film indicated Mr Macdonald having a discussion outside his home with two other people around a Harley Davidson motorbike, Mr Macdonald bending forward over a car bonnet signing a document and later on depicting him lifting the bike off its stand and moving it a short distance in the front yard. Mr Macdonald told the court that he purchased the bike with the intention of riding it if his condition improved but that did not eventuate, so he sold it. He confirmed that on that date he was wearing long pants but could not recall if his wife helped dress him that morning. He agreed that the video depicted him standing for a period, taking backward steps with his legs apart and standing on uneven ground. He agreed that; he lifted and moved the motorbike, was able to stand for a period of 10 minutes and bend forward, tilt the motorbike (estimated weight 250-300 kg), walk on uneven surfaces and step backwards. He disputed that he did not demonstrate that he was in pain over this period. He told the court that the video depicted him putting his hand on his back to help ease the pain and the video showed him putting his hand in his pocket which he would regularly do to poke his fingers into his groin area to ease his hip pain.
The court was shown approximately 2 minutes of surveillance footage taken on 13 July 2018. The Investigation Report indicates that surveillance was conducted between 7 am and 1.45 pm that day. The footage depicted Mr Macdonald getting into a car, walking inside and outside a car yard in Warragul and then driving to his home. The final surveillance footage shown to the court was taken on 11 June 2020 and depicted Mr Macdonald’s activities over a 12-minute period. The Investigation Report indicates that surveillance was conducted on that date for a period of 10 hours and 30 minutes. The footage depicted Mr Macdonald getting into and manoeuvring a Toyota 4WD by reversing it out of a driveway, leaning and twisting whilst in the driver’s seat to look over his shoulder whilst reversing the vehicle. He agreed that he was able to twist whilst sitting in the driver’s seat, was able to put his right arm out the driver’s side window, lean his head out the driver’s side window, get out of the vehicle and walk to his house without being in obvious pain. Mr Macdonald disputed that he has or is exaggerating his level and complaints of pain. He conceded that he is able to drive but told the court he is limited to approximately 15 minutes otherwise he experiences foot numbness. He conceded that he has told some of the doctors that his driving tolerance is between 10 and 30 minutes.
The defendant tendered a Suitable Employment Report of Ms Ash from Recovre dated 10 August 2020 indicating that Mr Macdonald would be capable of performing work as an Asset Protection Officer with a local Council situated in Drouin where he resides or as an Automotive Service Advisor with a car dealership located in Traralgon which is approximately 65 km or a 45 minute drive from his home. It should be noted that Ms Ash did not interview Mr Macdonald when completing her report and it appears that she only had access to the medical opinions of Dr Baynes and Assoc Prof Varma. She did note that Mr Macdonald had attended a basic computer skills course in December 2019. In summary, the role of an Asset Protection Officer would require him to assess Council assets being footpaths, crossways and storm water drains to determine whether they have been damaged during planned construction and related works. He would be required to visit site locations, take photos and complete checklist paperwork and then be required to upload the photos into a database. This job would require him to drive up to 75 minutes per trip (with the typical drive time being in the vicinity of 30 minutes), stand and walk short distances, sweep areas in order to take accurate photos, shovel small piles of debris and be competent to perform data entry on the computer system. It was noted that incidental stair climbing may be required at times, the climbing of ladders is not typically required, but manual handling in the vicinity of 3-5 kg may be required. She reported that prospective employees should have basic computer operation skills with the customer records system being taught on the job. Ms Ash reported that Mr Macdonald’s basic computer skills would most likely be sufficient for this role. When questioned about the suggested suitable employment as an Asset Protection Officer, Mr Macdonald told the court that the Baw Baw Shire is a large area and he may have difficulties in performing that role as it involves driving up to 75 minutes, shovelling, sweeping, climbing stairs and computer tasks with which he has little knowledge. He also stated that the requirement to bend whilst using a tape measure could cause him some difficulty and he would not be able to perform that job five days a week.
The role of an Automotive Service Advisor requires attendance between 7.30 am and 5 pm Monday – Friday to greet customers and complete check-in paperwork detailing servicing repair requirements and the costs associated with those repairs. Standing, walking and sitting for periods of up to 30-40 minutes is required as well as driving the vehicles for short distances. Advisors are also required to use computers for invoicing and spare parts. It is noted in the report that there are no formal qualifications required for the role but ideally workers should have completed Year 12 and have basic computer skills including keyboard and mouse functions and possessing email related knowledge. It was also reported that workers can choose to bend, squat or kneel when retrieving binders from lower level shelves and that climbing of stairs, ladders and overhead reaching is not typically required. In relation to the suggested suitable employment as an Automotive Service Provider, Mr Macdonald also doubted whether he would have the ability to work from 7 am to 5 pm five days a week, drive for long periods, including to and from his home, and cope with the amount of paperwork and computer tasks involved in the job.
Plaintiff’s Medical & Other Evidence
Dr Elsamman, General Practitioner, provided reports dated 28 August 2019, 20 September 2019, 8 January 2020 and 11 February 2021. He diagnosed that Mr Macdonald was suffering from chronic back pain, right hip pain and stress due to his work injury. He referred Mr Macdonald to Mr Tang, Orthopaedic Surgeon and Mr Wong, Neurosurgeon, for further opinion and treatment if necessary. Dr Elsamman reported that an MRI Scan indicated Mr Macdonald had mild spondylosis and a minor L3-4 disc prolapse without any significant neural compression. He prescribed medication in the form of Panadol Osteo 665mg and Pristiq 100mg and noted that Mr Macdonald may require a right hip replacement operation.
Mr Tang provided reports dated 8 April 2019, 8 July 2019 and 6 November 2020. He diagnosed that Mr Macdonald has osteoarthritic changes in his right hip, evidence of labral pathology (degenerate) and some femoro-acetabular impingement. In his opinion, whilst his condition may have predated the accident, it aggravated his condition. Mr Tang noted that when he last examined Mr Macdonald in July 2019, his symptoms had resolved to a large extent following an injection of local anaesthetic and cortisone into his right hip and that he would have been able to return to work of “some sort”. However, he noted that Mr Macdonald may potentially require a hip replacement to deal with the osteoarthritic change in his hip.
Mr Wong provided reports dated 3 September 2019, 15 October 2019 and 10 December 2019. He reported that an MRI and Bone Scan in September 2019 dated that Mr Macdonald at a small broad-based disc bulge at the L2-3 and L3-4 level causing mild central canal and lateral recess stenosis. He arranged for Mr Macdonald to have; an L3-4 epidural injection to improve his pain; analgesic medication and physiotherapy/hydrotherapy. He did not recommend that Mr Macdonald undergo surgery.
Dr Fish, Occupational Physician examined Mr Macdonald on behalf of his lawyers on 2 September 2020. Mr Macdonald told Dr Fish that he was still experiencing ongoing pain over the right groin which radiated down the anterior thigh to his knee and that he continued to experience persistent lower back pain radiating to his left hip, buttock and down his left leg to his foot. Mr Macdonald also told Dr Fish that; he is able to walk for up to 10 minutes and is limited by back and hip pain; sitting is limited to 10 to 15 minutes: he is slow on stairs and must use a handrail; driving causes back and right hip pain after 10 minutes; and, he suffers from sleep disturbance and wakes every two hours due to his pain. Mr Macdonald also told Dr Fish that he takes Palexia SR 50mg twice daily, on average 8 Panadol Osteo per day and Pristiq. Dr Fish concluded that Mr Macdonald has an aggravation of bilateral arthritis and lumbar spondylosis as a result of the fall. After reviewing the Recovre Suitable Employment Report dated 10 August 2020, the medical report of Dr Baynes, Occupational Physician dated 3 June 2020, the IPAR 130 Week Vocational Assessment Report dated 23 July 2019 and the report of Mr Paul Hartley, he stated that;
- Mr Macdonald’s age places him within an employable age-group;
- his place of residence (Drouin) limits his employment options particularly due to his limited driving ability;
- he has limited education;
- his physical impediments would limit his ability to perform mechanical and labouring work;
- his English language skills would limit his ability to perform report preparation or writing;
- he has limited computer skills;
- he has limited vocational experience in supervision or customer service;
- he is limited to sedentary work and is unable perform any work that requires repetitive bending, lifting or carrying and he would have limited capacity to perform long-distance walking, driving or sitting for long periods.
In relation to the suggested ‘suitable employment’ as an Asset Protection Officer, Dr Fish opined that it is “possible” that Mr Macdonald may be able to perform the role if he was provided with on-the-job training. He did not consider that Mr Macdonald could perform the role of an Automotive Service Advisor due to his lack of computer skills, English language skills and customer service skills. Dr Fish is of the opinion that Mr Macdonald will eventually require a total hip replacement and that currently he has no ‘current work capacity’.
Mr Macdonald tendered a comprehensive Vocational Assessment Report from Mr Paul Hartley, Occupational Rehabilitation Consultant, dated 29 September 2020. Mr Hartley reported that Mr Macdonald’s employment history indicates that his knowledge, training, experience and skill base has developed from four main fields; being an unskilled labourer in a variety of heavy manual industry including; sawmilling, abattoir and factory work; truck driving for three years; equipment maintenance work for 11 years; and workshop manager/unqualified mechanic and a tree lopping business. He also noted that Mr Macdonald does not have any qualifications or trade certificates as he is a self-taught mechanic/equipment maintenance man and that he has always worked low skilled forms of employment which were reliant upon his physical capacity and stamina for laborious work duties. Mr Hartley stated that having regards to the medical opinions that indicate that Mr Macdonald is unfit for manual employment and that he has no post-secondary education that would lend itself to office-based, telephone based, computer-based, sales based, customer service and people orientated occupations he has significant barriers to obtain employment. Mr Hartley also noted that Mr Macdonald has limited computer-based technological skills and his capacity to attain commercially viable digital literacy is extremely low. In his opinion, Mr Macdonald lacks the foundation skills to be considered a viable candid for vocational retraining in less physically demanding work and his lack of customer service skills and experience would be a further barrier to employment. Mr Hartley stated that in order to be a candidate for re-employment, Mr Macdonald will need to enhance his foundation skills, being learning skills, literacy, numeracy and digital literacy. He suggested that he requires comprehensive and substantive training assistance to enhance his foundation skills such as the General Certificates of Education and then the provision and successful completion of appropriate vocational training. In his opinion, without this training Mr Macdonald’s ability to fulfil the inherent requirements of suitable, lighter, and permanently restricted employment within his residual functional capacity is very likely to remain bleak.
Mr Hartley expressed the opinion that he was unable to suggest any suitable employment occupations where Mr Macdonald would be able to fulfil the inherent job requirements in a safe, consistent and reliable manner or for which he would be realistically marketable as an employment candidate. In relation to the suggested suitable employment as an Asset Protection Officer, he stated that Mr Macdonald’s residual capacity is not realistically saleable or marketable for this role as he would not be able to fulfil its inherent requirements. He also noted that the role of an Automotive Service Advisor requires the completion of a Diploma of Automotive Management according to the appropriate government website. Mr Hartley commented that although the duties may be within his functional capacity if he was provided with a sit/stand desk and computer tasks are self-paced, he has not completed the compulsory minimum level high school nor has he attained basic computer skills which would enable him to fulfil the inherent requirements of the role.
Defendant’s Medical & Other Evidence
The medical reports tendered from Dr Soliman, Dr Low, Dr Wilson and Assoc Prof Damodaran are dated and do not assist the court when determining whether or not Mr Macdonald has a ‘current work capacity’ or ‘no current work capacity’. Dr Slesenger, Occupational Physician examined Mr Macdonald on behalf of the defendant on 10 May 2019 and provided reports dated 20 May 2019, 30 September 2019, 16 October 2019 and 16 November 2020. After obtaining a history from Mr Macdonald and reviewing X Ray reports, a CT Scan and medical reports from Dr Elsamman, Dr Wilson, Dr Low and a report from IPAR dated 19 November 2018, Dr Slesenger opined in his initial report that Mr Macdonald was fit to perform alternative duties notwithstanding his right hip and lumbar spine impairment due to the fact that his symptoms were still being investigated and he may require further treatment. In his second report he diagnosed that Mr Macdonald sustained a lumbar spine mechanical injury and aggravated the degenerative disease in his lumbar spine. He noted that his work restrictions included: no push, pull, carry or lift over 5kg; avoid prolonged standing; avoid squatting; avoid repetitive bending and twisting; and, avoid exposure to whole body vibration. After reviewing the 130 Week Vocational Assessment Report from IPAR dated 23 July 2019, he was of the opinion that Mr Macdonald could perform work as a Call Centre Operator (although he may require the provision of a sit/stand desk) but he would not be capable of performing the roles of a Car Sales Rental Assistant, Sales Assistant, Car Salesperson, Truck Allocator or Spare Parts Interpreter. He suggested that Mr Macdonald could return to work in a light assembly or light packing role with restrictions. After being provided with details of Mr Macdonald’s computer skills (being able to turn a computer on and off, being able to use the internet and email, sending an open reply to emails and being able to use Gumtree and eBay), he opined that with onsite job training Mr Macdonald could return to work as a Call Centre Operator (with a sit/stand desk), a Car Sales Rental Assistant (after retraining), an Automotive Sales Assistant (after retraining), a Car Salesperson (after retraining), and a Truck Allocator (after retraining).
In his final report and after being provided with a Suitable Employment report from Recovre dated 10 August 2020, Dr Slesenger expressed the opinion that he had some reservations as to whether Mr Macdonald had the capacity to return to work as an Asset Protection Officer as he would be required to bend whilst performing field tasks and the tasks required to be performed would be beyond his capacity. He considered the role of an Automotive Service Advisor to be suitable with the restrictions as outlined in his second report.
Dr Doig, Orthopaedic Surgeon assessed Mr Macdonald on 24 February 2020. Mr Macdonald complained of ongoing lower back and buttock discomfort pain in his right groin and occasional dysesthesia in his foot and told Dr Doig that he was taking medication in the form of Palexia 100mg, Panadol Osteo for his back pain and Pristiq for depression. Dr Doig opined that Mr Macdonald’s prognosis was poor with respect to returning to preinjury employment and that he had a combined whole person impairment of 9% pursuant to the AMA Guides.
Assoc Prof Varma, Consultant Psychiatrist assessed Mr Macdonald on 16 June 2020. He opined that Mr Macdonald suffers from a secondary psychiatric condition due to his physical injury and that from a purely psychiatric perspective he had the capacity to do some work. He reported that Mr Macdonald has symptoms of low self-esteem, self-confidence, flat mood and irritable. According to the DSM-5 diagnostic criteria he diagnosed that Mr Macdonald suffers from an adjustment disorder with mild anxiety and depression secondary to his lower back pain. In his opinion, Mr Macdonald would be able to work in his preinjury role with a different employer and would be fit to work in all of the suggested suitable employment options identified in the Job Seeking Review report dated 19 November 2018 and in the roles of an Asset Protection Officer and Automotive Service Advisor as outlined in the Recovre report dated 10 August 2020.
Dr Baynes, Occupational Physician examined Mr Macdonald on behalf of the defendant’s lawyers on 3 June 2020. After conducting an examination and reviewing the various medical reports and diagnostic reports he diagnosed that Mr Macdonald is suffering from a chronic pain syndrome associated with chronic lower back pain related to age-related degenerative changes in the lumbar spine. He reported that there is no objective evidence of radiculopathy on examination nor was there evidence of nerve root impingement seen on radiology. He also noted that Mr Macdonald was suffering from chronic right hip pain associated with pre-existing femoroacetabular impingement and labral tears as seen on radiology. In his opinion, Mr Macdonald’s injuries were still related to the work incident which aggravated pre-existing degenerative changes. He considered that Mr Macdonald has the capacity for alternative duties of a sedentary type nature where there is no lifting greater than 5 kg and no lifting from below knee height or above shoulder height. He noted that Mr Macdonald should be able to frequently rotate posture between sitting, standing, walking and that he should not be required to kneel or squat, or work with constrained postures. In his opinion, Mr Macdonald would be fit to return to work on a limited hours basis of 25 hours per week with a progressive increase in hours with work hardening. Dr Baynes indicated that Mr Macdonald’s physical tolerances were: sitting-10 minutes, standing-10 minutes, walking-10 to 15 minutes, driving-around 30 minutes, climbing/descending stairs/inclines-restricted to one at a time and difficulty on slopes, reaching-unrestricted, bending-restricted, lifting weights-5 kg and walking on uneven ground-restricted.
After referring to the Job Seeking Review Report dated 19 November 2018 and the 130 Week Vocational Assessment Report dated 23 July 2019, Dr Baynes opined that Mr Macdonald could perform the roles of a Sales Assistant, light Packer, Sales Representative, Call Centre Operator, Car Sales Rental Assistant, Truck Allocator, Spare Parts Interpreter, Gatehouse Keeper and light Machine Operator with appropriate restrictions. After being provided with the report from Recovre dated 10 August 2020, Dr Baynes opined that Mr Macdonald would have difficulty performing some of the roles required as an Asset Protection Officer and in particular, the possibility of being required to drive for up to 75 minutes and undertaking full flexion postures as indicated in the photos attached to the report. Dr Baynes is of the opinion that Mr Macdonald would have the capacity to perform the role as an Automotive Service Advisor as it would fit within his physical capacity and restrictions particularly in terms of the ability to rotate postures.
Conclusion
It is not in dispute that Mr Macdonald continues to suffer from the effects of the work-related injury sustained during the course of his appointment with the defendant on 16 May 2016. The central issue to determine is whether or not he has the capacity to return to work in the suggested suitable employments as either an Asset Protection Officer or Automotive Service Advisor as suggested by the defendant.
In determining this issue, the court must not only consider the evidence given by Mr Macdonald as to his capacity perform those roles but also the medical opinions provided and the various factors set out in the definition of ‘suitable employment’ contained in s3 of the Act. These include;
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate capacity supplied by the worker;
(ii) the nature of the worker’s pre-injury employment;
(iii) the worker’s age, education, skills and work experience;
(iv)the worker’s place of residence;
(v) any plan or document prepared as part of the return to work planning process;
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker.
As stated in Richter v Driscoll[1], the Act requires a holistic view of the suitability of the suggested suitable employments and not a narrow focus on physical capacity alone. The Court of Appeal also stated that it is not simply a matter of the physical ability to perform duties or work but rather the combination of the worker’s personal characteristics together with the physical limitations (and possibly psychological limitations), which are relevant in whether or not a worker has ‘no current work capacity’ i.e. whether ‘he has something of value to sell’ in the labour market.[2] I found Mr Macdonald to be an honest and credible witness. I did not find that the surveillance footage affected his credibility as to his stated physical restrictions and his level of pain. When deciding, the court is required to not only consider his physical limitations but also his level of education, literacy level, occupational skills, work experience and his ability to learn new tasks. A ‘degree of realism’ is required as to whether or not Mr Macdonald has the capacity to perform the suggested ‘suitable employments’.
[1] [2016] 51 VR 95.
[2] Also see recent decision of Quigley J in Yildirim v A & L Windows Pty Ltd & Ors [2021] VSC 139.
I find that Mr Macdonald has ‘no current work capacity’ which is likely to last indefinitely. He is 51 years of age, left school aged 14 years after completing Year 7 and has no formal qualifications. His employment history consists of heavy manual work, his place of residence limits his employment opportunities, he has low self-esteem and confidence and has been diagnosed as suffering from an adjustment disorder with mild anxiety and depression. I accept his evidence as being truthful that he experiences ongoing and constant lower back and hip pain which restricts his everyday living activities. I also accept his evidence that he suffers from significant sleep disturbance because of his pain. As stated, he has had a limited education and has limited knowledge and understanding of computer-based technology which severely restricts his employability.
I do not consider that Mr Macdonald could perform the role of an Asset Protection Officer as suggested by the defendant having regards to his physical limitations, pain level and lack of computer-based skills. I therefore accept the conclusions reached by Dr Slesenger, Dr Baynes and Mr Hartley in relation to this suggested suitable employment option.
Additionally, and for the same reasons, I do not consider that Mr Macdonald could perform the role of an Automotive Service Advisor. This finding is consistent with the opinions expressed by Dr Fish and Mr Hartley with Dr Slesenger providing conditional support for such a role albeit with restrictions.
Accordingly, Mr Macdonald is entitled to have his weekly payments of compensation re-instated as from 25 January 2020 on the basis that he has ‘no current work capacity’ which is likely to last indefinitely.
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