Mason v VWA

[2015] VCC 134

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY

Case No. CI-14-03598

MR WAYNE MASON	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Ballarat
DATE OF HEARING:	6, 9, 10 February 2015
DATE OF JUDGMENT:	19 February 2015
CASE MAY BE CITED AS:	Mason v VWA
MEDIUM NEUTRAL CITATION:	[2015] VCC 134

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION; serious injury application      
Catchwords:             Whether hip injury caused permanent loss of 40% of earning capacity
Legislation Cited:     Accident Compensation Act 1985, s134AB
Cases Cited:            
Judgment:                for Plaintiff

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Seccull with Mr N Dubrow	Slater & Gordon
For the Defendant	Mr P Scanlon QC with Ms F Ryan	IDP Lawyers

HER HONOUR:

1 Mr Wayne Mason suffered injuries at work on 15 April 2010 when he fell from the top of a ladder. He applies for leave to bring a claim in respect of his injuries for damages for both pain and suffering, and loss of earnings and earning capacity. To obtain leave he must satisfy the Court that he suffered at least one “serious injury” within the definitions and requirements of s134AB of the Accident Compensation Act 1985 (“the Act”).

2          The case was opened on the basis that Mr Mason suffered several injuries as a result of his fall, four of which should be found to satisfy the definition of a serious injury[1]. The defendant conceded that the injury to the plaintiff’s right hip (but none of the other injuries assessed separately) satisfies the definition of “serious injury”, but only in respect of pain and suffering.  In light of that concession, the plaintiff did not pursue the application in relation to injuries to his right knee, low back and right leg length[2].

[1]The case was to be an application for findings that each of injuries to his right hip, right knee, low back, and shortening of length in right leg, constituted a separate serious injury.

[2]For this reason I make no finding as to whether any of the other injuries additionally and separately satisfies the definition of a “serious injury”.

3          The remaining issue in this case, therefore, is whether the plaintiff should be granted leave to claim pecuniary loss damages for loss of earnings and earning capacity.  He must satisfy the Court that for the foreseeable future his loss will be serious when judged by comparison with other cases in the range of possible impairments or losses of a body function[3], and that his loss of earning capacity is of at least 40 per cent, measured in the manner set out in the statutory formula[4], and taking into account his capacity for suitable employment after reasonable attempts to participate in rehabilitation or retraining[5]. 

[3]s 134AB(38)(2)(b)

[4]s 134AB(38)(f)

[5]s 134AB(38)(g)

The evidence

4          The evidence consisted of the documents set out in the attached schedule, and oral evidence from the Plaintiff who was the only witness required by the defendant to attend for cross-examination.

5           As in most cases of this nature, the credibility and reliability of the plaintiff’s own evidence is important because not only the Court, but doctors whose opinions are in evidence, are reliant on the plaintiff’s own account of the history of the occurrence, timing, extent and duration of symptoms and their impact on the plaintiff’s life.

6           The defendant did not challenge the plaintiff’s credit in this case.  It argues that Mr Mason clearly has been a very hard-working, determined man, well-motivated to look after his children, and that he remains so, and the court should find that he will be able to achieve whatever he pursues in the future. 

7           My impression was that he was a credible and reliable witness, answering candidly and honestly to the best of his recollection.  While careful to correct or qualify some propositions put to him, I am satisfied that he was not prevaricating.  I am satisfied that he was not embellishing or exaggerating his symptoms at all.  He impressed me as genuinely trying to maximise his recovery from his injuries, displaying considerable stoicism and determination in those efforts.  When he says he believes that certain roles would be beyond his abilities, or that he suffers increased pain as a result of certain activities, I have no hesitation in accepting his answers on those issues.

Plaintiff’s personal circumstances and background

8           Mr Mason is now aged 57.  After completing Year 11 of secondary school he undertook an apprenticeship in plumbing and gas fitting, and has worked in the plumbing industry his entire working life.   Over nearly 40 years he has gained experience in a very wide range of plumbing and gas fitting work, of both industrial and domestic nature.

9           In 1979 Mr Mason had a motorcycle accident in which he suffered serious injuries to his right leg.  He underwent five operations on that leg and the injury and his recovery was complicated by a golden staph infection.  He concedes that it took a while and that he was off work for approximately two years overall, but eventually he made a good recovery from that injury and was able to return to full plumbing work in the early 1980s.  In particular, after that injury, he specialised in roof restoration of heritage homes which involved a lot of work in and on roofs. 

10As a result of the injury and surgery to his right leg following the 1979 accident, his right leg had shortened compared with the left, although there are differing estimates on the precise length of that shortening. Nevertheless, that leg shortening did not interfere with his ability to perform a full range of plumbing duties, including climbing onto roofs, and nor did it interfere with his general lifestyle and many other activities, although he did cease riding motor cycles.

11Since approximately 1999 he has worked as a sub-contractor.  This began when a company called “Woodside Mechanical” offered him work but wanted  him to provide it through sub-contracting rather than direct employment. He undertook that work, and in fact did not work for anyone else.  When that company split into two in 2003, he was directed to the section called Superior Systems Pty Ltd, and continued to work for it as a sub-contractor but working effectively solely for that company. He engaged in a range of commercial and domestic air-conditioning work, such as upgrades, installation and repair of ducted and extraction systems, hydronic heating systems and the installation, maintenance and repairs of boilers. 

12For Superior Systems he worked over 40 hours per week, and often away from home in rural Victoria and interstate.  He was paid an hourly rate which varied depending on the job.  He limited his availability to perform this work to the extent that he took leave during half of each school holidays to look after his children whose custody he shared.  On occasions he did some other jobs for family or other people, sometimes unpaid.  If paid he included the income in his tax returns, but these jobs did not form any significant part of his income.  At the time of his injury he was earning an average of approximately $1200 gross per week from Superior Systems Pty Ltd.

13Mr Mason was married but had divorced before the subject injury.  He has two teenage children, a son now aged 17 and daughter now aged 15, both still dependent, and they live with him at least half of the time[6].

[6]It was unclear whether he still shares custody of them or they live mainly with him.

The injury

14On 15 April 2010 the plaintiff was performing work for Superior Systems at a site in Melbourne where he was required to stand on a ladder to cut through a roof beam with a handsaw.  As he did this the ladder buckled and he fell from a height of between two and a half to three metres onto a concrete floor, landing on his right side.  He experienced immediate pain in his right hip and knee and was unable to get up. 

15He was taken by ambulance to the Alfred Hospital where x-rays disclosed a comminuted fracture of his pelvis extending to a fracture of the right acetabulum and a fracture of the right iliac wing.  He came under the care of orthopaedic surgeon Associate Professor Max Esser, who recommended initial conservative management of the fracture without weight-bearing for a minimum of 12 weeks.  After six days he was discharged from the Alfred Hospital to the Queen Elizabeth Centre in Ballarat where he remained an inpatient for some further weeks until discharged home on crutches and then monitored in the orthopaedic outpatient clinic. 

16When he was eventually mobilised to weight bearing, his right hip was very painful, and scans showed marked post traumatic arthritis in the hip joint, and Mr Esser recommended a hip joint replacement.  That surgery was performed in February 2011 during which, whilst replacing the hip joint, Mr Esser reconfigured the joint to compensate for some of the noticed leg shortening. 

17The surgery was successful and relieved Mr Mason of much but not all of his right hip pain.  During his recovery from the hip surgery, discomfort and pain in his right knee came to prominence.  He had complained of knee swelling and discomfort after the fall, but the pelvis and hip fractures had dominated.  Mr Esser performed arthroscopic repair of the right knee, in July 2011.  The knee has caused him some ongoing problems, but his hip and low back have been his predominant ongoing problems.

18For the remainder of 2011 Mr Mason remained unable to work.  He underwent all recommended rehabilitative treatment aimed at strengthening his right leg, from physiotherapy and hydrotherapy to home managed exercises. He attended the Queen Elizabeth Centre in Ballarat for rehabilitation.  His general medical supervision fell to his general practitioner, Dr Kathryn Oliver, who reported in July 2012 that he was continuing with his physiotherapy exercises as instructed and maintaining good movement, but is often in pain and his movement was restricted at times, and he had been told that he would not get back to his pre-injury fitness, and would be left with some weakness and inability to squat or crawl and bend down.  He was taking prescribed pain medication when needed. 

Work history since accident

19The defendant does not dispute that the plaintiff has been well-motivated to return to income producing work, and has expressed willingness to undertake retraining or further training if realistically likely to assist him to return to full-time productive work.  No specific retraining was recommended nor job search assistance apparently offered by the defendant’s claims agent.

20While completing his physiotherapy at the Queen Elizabeth Centre in Ballarat, and obtaining his own orthotic aide, Mr Mason learnt of a job opening for a trainee prosthetics technician.  He thought it would interest him by utilising technical skills, and he enquired about and applied for the position.  I accept his evidence that he spoke with the manager of that department, who asked him whether he thought he would be able to stand for long periods, and indicated she saw that as a concern because of the injuries he had sustained.  He applied for the job but was not successful.

21In cross-examination it was put to him that he applied for the job because he believed he could do it.[7]  His response was as follows.

[7]Transcript (“T”) 49, L11-12

“At that time, I was at the end of my physiotherapy and I was what I believed at my peak of what my fitness was - had become .… And I spoke to her about what was involved.  That’s why she did question me about the standing for long periods on hard surfaces .… I thought I’d give it go; that’s why I applied …. In the workshop, I only saw the area without people in it, without it operating, and I didn’t know what length of time you may stand for, I didn’t know what length of time you may sit for, but I applied .… I was hoping I would be capable … I applied for the job and it was because I believed that I may be capable of doing it.  If I wasn’t, well, at least I tried.”[8]

[8]T49, lines 14-19,21-22,25-28;  T49, lines 3-4,8-10

22Although Mr Hart’s report indicates that he had applied for three such jobs, I accept Mr Mason’s explanation of how this might have been misunderstood.  I accept his evidence that he only applied for one such position, and that he had believed there were another two “in the air” that may come available, but they did not so he could not apply for any others.  The position for which he did apply was to be a trainee for two years as a prosthetic technician.  He was not sure that he ever knew the actual salary, but thought it was in the “low 30s”, and accepted that if successful after a traineeship ongoing employment could be expected to be at higher rates than that.

23Also of his own volition, Mr Mason made enquiries about the possibility of light courier work, in that he made enquiries about UFS Dispensaries, that being near his home and he thought all of their work would be light, that is small packaging, being pharmaceuticals.  However he was told by courier drivers employed by UFS Dispensaries that some of the packages are small and light but quite a lot of the work involves heavy boxes, which could be 20 to 25 kilograms or so.  On learning that, he ceased enquiries about courier work as the lifting and bending to load vans, and carrying heavier items including upstairs, would be beyond his capacity due to his low back and right hip conditions. 

24In the absence of other alternatives, and seeking to return to work, Mr Mason decided to try to return to plumbing work.  He approached a former employer, Wight Plumbing, explained his medical situation, and it was agreed that initially he would work 3 days a week for about 20 hours a week, on restricted tasks within his capacities and medical restrictions.  This was work that Wight Plumbing had through a contract with the local Council, doing maintenance work, and he was doing the smaller items of maintenance, such as replacing taps and washbasins in council amenities, and other light plumbing work.  He commenced in about October 2012, but over time the employer’s expectations became greater and the hours increased to 22 or up to 25 hours per week, and Mr Mason found he could not cope with that much.  Also he was aware that he was not working at his pre-injury pace, so it was taking him longer to complete work than he had taken before his injury, he was taking regular breaks, and even then having to rest by lying down when he got home. In about March 2013, Mr Wight told him that the work had dried up and he would no longer be required.  The plaintiff believes that he was told that because he was not up to the work at the appropriate pace anymore. 

25After leaving Wight Plumbing, Mr Mason decided to try working for himself, taking only jobs that he could space out over a number of days in order to cope with them and not place too much strain on his hip and back.  He started on 12 to 15 hours a week when the work was available.  At times he works about 20 hours a week when the work is available, but as some of that is at a reduced pace or with regular breaks, he is not necessarily as productive as  he would have been before his injury.  He has still found that he must go at his own pace, regularly goes home at night and needs to rest to ease his right hip and lower back, and has refused some work offered because he just could not cope with working more hours than about 20 per week.  Indeed, according to his latest affidavit, he found by the middle of last year, 2014, that his hip was causing him more pain and he needed to reduce his hours and took on fewer jobs.

26The plumbing work which Mr Mason has been performing since April 2013, is offered to him by licensed plumbers who know him or of him, and who pass on some work to him by sub-contracting to him.  He does not negotiate for the work with the property owners or developers.  He assesses each job offered to him as to whether he can cope and does not accept them all. 

27It is agreed that his income tax returns indicate that his gross total income from personal exertion over relevant years has been as follows:

Year	Amount
2007	$27,476
2008	$55,804
2009	$62,690
2010	$39,183*
2011	$63,795*
2012	$64,205*
2013	$24,311*
2014	$23,084

The asterisked figures include some weekly payments of compensation.

28The plaintiff’s gross earnings from 1 July 2014 to 5 January 2015 (a month before the hearing commenced), without taking into account business expenses, are estimated at $11,266.75, or approximately $417 gross per week.

Permanent loss of earning capacity of at least 40 per cent

29Whether there has been a loss of earning capacity of at least 40 % must be determined under ss134AB(38)(f) taking into account the requirement of ss134AB(38)(g) and definitions of “suitable employment”[9] and income from personal exertion.

[9]S 5

30This requires a comparison of current capacity to earn income from personal exertion (being whichever is the greater of actual earnings or earnings which the worker is capable of earning in suitable employment), compared with pre-injury earning capacity.  Pre-injury earning capacity is to be assessed from the gross annual income that the worker was earning or was capable of earning from personal exertion during that part of the period of 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred. 

31Further, a worker does not establish the loss of earning capacity required  where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred[10].

[10]Ss134AB(38)(g)

Pre-Injury earnings

32The plaintiff submits that I should assess his pre-injury earning capacity at $62,690, being the gross annual income from personal exertion in the last completed financial year prior to his injury.  That was considerably more than the preceding two years, and also than the earnings for 2010 in which he suffered the injury.

33In relation to the 2010 figure, which would have included some 6 weeks of WorkCover payments, the plaintiff said that there was a considerable period of work not invoiced at the time of his injury on 15 April 2010 and which was not paid until much later.  His bank statement for February 2014 shows that on 3 February 2014 he was paid the sum of $9,318 by Superior Systems.  He explained that this amount was a back payment representing the period from January to mid-April 2010 for work he had performed for Superior Systems but had not yet invoiced to them when he had his fall, and the reason for the lateness of the payment was that his workbook, recording his work times, had been left in the company’s vehicle which he had been using, but because of his hospitalisation and others using the vehicle, the book became mislaid and there was a much later reconstruction between him and relevant personnel at Superior Systems to calculate the amount owed to him in payment for that period.  I believed and accept this explanation for that payment and its timing. 

34Even with the back payment of 2014 added to the amount in his tax return for the 2010 financial year, he appears to have earned less in that financial year.  However, the figure of $62,690, as gross pre-injury earnings, is consistent both with his own and the “employer” figures provided in reports of his injury, namely that his average weekly earnings were approximately $1,200 per week.  The figure of $62,690 equates to gross weekly earnings averaging $1,205, and the coincidence of that figure with what the employer reported was his usual weekly earnings from it, satisfies me that that is the appropriate figure that fairly represents his pre-injury earnings. I further note that the WorkCover payments for the two years after his injury appear to reflect acceptance of that figure, with CPI adjustments.

35Therefore, to establish a permanent loss of earning capacity of at least 40 per cent, the plaintiff must prove that his post- injury earning capacity is no more than $37,614 annually (or $723.35 gross per week).  In my view that figure should have a modest increase for CPI, but I shall use it without that allowance for the balance of these reasons, because 2012 prospective alternative employment wages were used for comparisons during the hearing, and in light of my findings the slight difference in more recent figures would not alter the decision.

The plaintiff’s post injury earnings, and earning capacity for the foreseeable future.

36Excluding Workcover payments, the plaintiff’s actual gross earnings from personal exertion since his injury have been below $37,614 per annum.  The remaining issue is whether he has had or in the foreseeable future is likely to have the capacity to earn more than that amount in suitable employment, including alternative employment, or would have that capacity after rehabilitation or retraining and taking into account the reasonableness of his attempts to participate in rehabilitation or retraining.  

37The defendant accepts that as a result of his hip injury, Mr Mason has permanently lost his capacity to work on roofs or under buildings or at other physically awkward or demanding tasks as a plumber.  It also accepts that he has suffered a permanent loss of capacity to work full-time as a plumber, even at lighter or restricted plumbing duties.  The defendant accepts that he is in effect working presently to his full capacity as a plumber, in that he cannot cope with more than about 20 hours per week, and is working at duties which are moderated within his restrictions, and self-paced.  

38The defendant’s case, however, is that the plaintiff has the capacity to earn more than 60 per cent of his pre-injury earnings (more than $37,614 annually) if he moved into alternative work, which might or might not require retraining but only retraining of which he would be capable. 

39I turn to consider the evidence relevant to this specific issue.

40The Plaintiff’s own evidence is that he experiences hip pain every day which increases in its intensity the more physically active he becomes.  He can ease it by lying down.  His general tolerances in his activities are that he can only stand comfortably in the one place for 5 to 10 minutes, longer if able to move around, that he can sit 45 to 60 minutes before discomfort, but he told one doctor that would be provided he could stand after 30 minutes.  In oral evidence he said driving was about the same as sitting, but also said that once seated it is not so bad but the hip gets very aggravated long-term driving, and twisting and stepping out all the time he believes would aggravate the hip.  He can walk for up to a kilometre but less some days. Household tasks such as vacuuming similarly aggravate his pain.

41When working for Wights plumbing he could not tolerate as much as 22 hours a day of plumbing duties, and was also not able to working as quickly as would normally be expected of a plumber performing those duties.  This was at relatively light duties with restrictions according to his particular medically advised restrictions.  He also says, and has told examiners since mid-2014, that he has been finding that his work tolerance has been decreasing, and over the last six months or so he has not been able to maintain as much as 20 hours per week, with more days and even weeks when he cannot work at all.  His overall tolerance depends on the day and his level of activities, but most days if he has engaged in plumbing work he finds his pain increasing as the day progresses and he often needs to lie down to rest when he gets home.    I am satisfied that Mr Mason was not exaggerating and that in fact he has been pushing himself to do as much work as he can tolerate.

Medical evidence relating to the plaintiff’s work capacity and restrictions

Dr Kathryn Oliver , GP

42The plaintiff’s long-term general practitioner, in her most recent report, says that the plaintiff continues with some right hip pain and decreased power in his right leg, worsened with increased activity.  She also notes that he suffers continued moderate/severe back pain and intermittent pain with use of his right knee, although that has improved.  She considers that his hip and knee condition are unlikely to change and that he has no capacity to return to pre-injury work.  Asked as to his capacity to return to “work in general and future restrictions”, she stated that he can do any plumbing work that does not require ladder work, squatting, working in confined spaces, heavy lifting or any job which lasts longer than 90 minutes without a break or any job where he has to stand still for more than 20 minutes.  The number of hours he can work per week she put at 20 hours. 

43The defendant does not dispute the restrictions which Dr Oliver places on the plaintiff’s capacity to work at plumbing work, nor the number of hours of which she considers him capable in that work, but argues that as Dr Oliver has not addressed the plaintiff’s capacity in alternate work rather than plumbing, her report is not useful. In cross-examination Mr Mason confirmed that he has not discussed alternative job possibilities with Dr Oliver.  The plaintiff’s counsel submit that Dr Oliver’s opinion as to the limitation on the number of hours that he can work should not be read as limited to plumbing, because her previous answer, which responded in relation to plumbing, was to a question as to his capacity to return to work in general and future restrictions.

Associate Professor Max Esser, treating orthopaedic surgeon

44Professor Esser’s reports have mainly discussed the injury, its treatment and the plaintiff’s ongoing condition.  As at May 2012, before Mr Mason had in fact returned to any work, Professor Esser’s view of the plaintiff’s prognosis, with respect to his hip was “that of a person who has had a hip replacement”.  He did not think any further treatment was required with respect to the hip in the near future, but it was possible further surgery may be required in the future in the form of a revision of the socket for wear.  That report made no comment about Mr Mason’s capacity for work. 

45In a recent report of 24 December 2014, Professor Esser noted that when he saw the plaintiff in October 2013 Mr Mason said he could only work four to six hours without being aware of symptoms, and he needed to have a rest after that, and was only doing half to two-thirds of his previous maintenance-type plumbing work.  On examination, Mr Mason walked with a slight limp due to the leg length discrepancy, but, when reviewed for the report in December, he had a barely detectable limp and full range of movements of his right hip.  He was aware of some buttock discomfort with activity-related pain. 

46Mr Esser’s latest report expresses the opinion that the plaintiff has done extremely well following an acetabular fracture treated initially conservatively and subsequently with a right hip replacement, and he thought the prognosis was good.  He thought Mr Mason able to do most work, but heavy manual work and working in confined areas would be difficult for him to achieve.  Mr Esser thought the current situation is permanent. 

Mr Stephen Doig, orthopaedic surgeon (medico-legal opinion for plaintiff’s solicitors)

47In September 2014, Mr Doig took a history from the plaintiff in relation to his activities and work, that at that stage he still got some pain and ache related to activity, had to rest regularly,was alright when he started off in the mornings but gets slowly and steadily worse during the day. Stairs were said to be okay, his sitting tolerance was about an hour, and he could walk for about a kilometre.  He was driving occasionally but found it hard to do so.  

48Mr Doig’s opinion in relation to the plaintiff’s work capacity was that as a consequence of the physical injury he is likely to be restricted in pushing, pulling, lifting, carrying or doing these activities repetitively.  He will have difficulty in using steps and ladders to a marked extent and that will continue into the foreseeable future.  As a consequence of that, he does not have the capacity to perform his pre-injury duties and, in particular, he does not have the capacity to do any roofing.  As a consequence of that, he does have the capacity to perform suitable employment and, in fact, was doing so at that stage.  He was working about 20 hours a week but was very careful of the jobs he takes and Mr Doig considered that appropriate and proper.  That incapacity for full-time full duties was likely to last into the foreseeable future.  Mr Doig went on to also note restrictions in his social, domestic and recreational activities.

Dr David Middleton, occupational health and rehabilitation consultant (medico-legal requested by plaintiff’s solicitors)

49Dr Middleton assessed the plaintiff in July 2014.  He noted the plaintiff’s main then current pain was in his lower back extending into the right hip, with shooting pains down the right leg associated with cramping, the leg felt weak, and although it didn’t collapse he was unable to squat or do normal lifting. On walking, pain progressively increased after between 500 metres and one kilometre, depending on the day.  His then current treatment was Voltaren tablets as an anti-inflammatory, and Panadeine Forte on an as-needs basis, usually taking one a day. 

50At that time Mr Mason was doing light plumbing work in a self-paced manner, ranging between 15 to 20 hours per week but that equating to a fit plumber’s work of 10 to 12 hours a week. Dr Middleton thought important that Mr Mason said there were some days when he was unable to do any form of work. His sitting tolerance was said to be 15 minutes before becoming uncomfortable; standing between 5 and 10 minutes before becoming uncomfortable; driving between 45 and 60 minutes; walking twice a week between 15 and 20 minutes; and lifting limited to between 10 and 15 kg depending on the day, and for this he wore a back brace to help.

51Dr Middleton’s opinion was that Mr Mason needs to restrict bending, lifting, twisting, stooping, pushing, pulling and lifting, walking up inclines and down declines,  such that he avoid aggravating his ongoing conditions. He believed a maximum effective weight to be manually handled was limited to 10 kg on an occasional basis and 5 kg on an intermittent basis. He considered Mr Mason should avoid repetitive pushing, pulling or lifting, bending, lifting and twisting, prolonged sitting, walking and standing. Mr Mason should restrict the those activities to within his manageable levels of discomfort and would be best to avoid using steps or ladders. He considered that this level of incapacity will continue for the foreseeable future.

52His opinion was that Mr Mason no longer has the safe physical capacity to undertake his pre-injury duties on a full or part-time basis.  He thought Mr Mason does have the capacity to perform suitable employment within the mentioned restrictions, on a part-time basis where the work is self- paced, and where he also was able to take rest breaks on an as-needs basis.   He noted that although Mr Mason has returned to plumbing in lighter areas of his trade there were some days when his symptoms prohibited him from undertaking any work at all, and thought this unreliability resulted in him no longer having a safe physical capacity to gain paid employment even when he was provided with lighter plumbing duties.  He thought Mr Mason able at best to attend to restricted plumbing work between two and four hours in any one day, 3 to 4 non-consecutive days in any one week, where maximum attendance at work would be limited to 15 hours in any one week. He believed Mr Mason would benefit from training in a niche area of plumbing where the physical requirements of such work is minimal and falls within the recommended physical restrictions.  He considered the overall prognosis guarded as there is known to be a limited lifespan for a hip prosthesis, and there was an increased risk of developing arthritis as a result of a changed gait including right leg shortening and a dysfunctional right knee.

Associate Professor John Hart, consultant orthopaedic surgeon (medico-legal for defendant’s solicitors)

53Professor Hart examined the plaintiff in August 2014.   He confirmed the injury to the plaintiff’s right hip, and treatment.  Much of his report deals with issues not still relevant in this application, especially issues as to the origins and extent of the plaintiff’s right leg shortening, and of the right knee condition.  At the time he saw him Mr Mason was still doing hydrotherapy (self-funded), and taking Panadol Osteo – one at night and Fenec, one to three a day.

54Mr Hart’s prognosis in relation to the right hip was that as all total hip replacements are subject to wear and tear and Mr Mason was relatively young when his was performed, he may require revision at some stage in the future although low body weight and reduced usage would decrease the wear factor.

55As to work restrictions, in relation to the right hip he noted Mr Mason complained of pain in the hip on standing, walking and lifting, with standing tolerance of 20 minutes and walking only one kilometre.   He felt there was no obvious cause for this although the femur appeared undersized.  The right knee limited his standing and walking tolerances and his ability to kneel and squat. The low back pain was relatively minor compared to his hip and knee pain, but aggravated by standing and walking.  The combined effects of these symptoms had resulted in an approximate 50% reduction in his work capacity, in that he was only able to work approximately 20 hours a week at that time, as a plumber.

56Professor Hart was asked as to the plaintiff’s capacity to perform each of the jobs listed in the Konekt report. He apparently discussed each with the plaintiff, and has reported his views on each. I shall refer specially to some of those, but note that he accepted the plaintiff’s view on whether he might be able to perform each of those, and concluded that he would not be suited to being a construction manager or courier, but would be suitable, subject to restrictions to being a sales representative, sales person in plumbing supplies, or a motor vehicle parts interpreter if retrained for it. He concluded that a teaching or sales position would appear to be most suitable. He did not comment on whether Mr Mason was capable of full-time work in any of those positions for which he considered himself capable. He did not that Mr Mason’s age and geographical location would hamper him in efforts to find such work.

Vocational Assessments

57The defendant relied on a vocational assessment report it obtained in March 2012, the report being provided by Ms Tamsyn White of Konekt Australia Pty Ltd in Ballarat. At the time this report was compiled the plaintiff had not yet completed his rehabilitation and was acknowledged to be still totally incapacitated for all work. That meant that all recommendations were prospective, and untested by any actual experience of his ability to return to work. After reviewing his work history, injuries and treatment, current symptoms and anticipated restrictions, the report set out from his work history what were said to be transferable skills, and provided a list of possible alternative occupations , with then current expected (gross) wages.

The jobs suggested were:

Construction Manager ($1500 per week);

Couriers and Postal Deliverers ($950 per week);

Sales Representative ($1100 per week);

Salesperson – plumbing supplies ($750 per week);

Motor Vehicle Parts Interpreter ($900 per week).

58The plaintiff relied upon a recent report from Ms Katrine Green, Vocational assessor and psychologist, dated 29 January, 2015.  Taking into account the history of his injuries and treatment, his tolerances for activities as he related them to her, and his vocational history before and since the injury, she  considered his transferable skills, noting these were based on his experience as a plumber. He had been reliant on his physical capacity for employment, being by her description computer illiterate, and having undertaken very basic and limited administration work, she concluded that he does not have sedentary transferable skills, and overall has limited transferable skills.

59 She noted that he said he continues to experience right hip pain which increases in intensity and his level of discomfort increases with weight bearing.  She also concluded that he was a very motivated man wanting to return to and remain in the workforce albeit with many modifications and not full time, and that he has endeavoured to undertake vocational redirection but to date without success.

60Ms Green addressed  several occupations and Mr Mason’s capacity for them.  She started with Plumber, concluding it will not be a suitable employment option for Mr Mason for the foreseeable future, then considered the occupation of Roof Plumber for which she also found him unsuitable.  She then considered Building Construction Supervisor, Building Construction Labourer, Handyperson, Product Assembler, Retail Sales Assistant, Sales Representative, Driver-Courier.  She concluded that none of these would be suitable for him on a full-time basis, and that his demonstrated partial capacity as a plumber on reduced hours, no more than fifteen to 20 per week.  She considered he could also undertake duties as a product assembler, although only for 15 to 20 hours per week and nor always on a consistent basis, and may require weeks of rest breaks or reduced hours in some weeks. She considered his incapacity for these duties was for the foreseeable future.

61The defendant challenges the reliability of Ms Green’s conclusions, asserting that she put up initially ridiculous propositions of the possibility of the plaintiff  returning to full-time plumbing or roof plumbing, or builder labourer, only to find him unsuitable for those.  It also points out that she was not provided with the most recent report of the plaintiff’s treating surgeon, Mr Esser even though that report, being dated December 2014, predates her report, and so she relied upon his next most recent report which was as old as May 2012. 

62It would have been preferable for Mr Esser’s last report to have been forwarded to Ms Green before she gave her report, but I do not infer anything adverse in that omission taking into account the timing and usual closure of offices over the Christmas/New Year period.   I do not regard the report of May 2012 as likely to have been misleading in that it made no specific comment about work capacity, although it was written when his rehabilitation had not reached the stage of his being capable of return to any work.     Indeed, neither the May 2012 nor December 2014 reports of Mr Esser were available to Ms White who assessed the plaintiff in March 2012 when he was being certified as still totally incapacitated for work, so his actual experience and endurance on return to work had not yet been tested.

63I do not find surprising that Ms Green commenced by considering the plaintiff’s suitability to work full-time in his pre-injury type work.  She may have been stating what is now obvious in considering separately the role of a roofing plumber, and also of a labourer on building sites, but I do not consider that that approach totally undermines the views expressed in her report as was argued for the defendant. I have weighed up her opinions together with all of the others in this case, including those of Professor Hart.

Has the plaintiff proved a permanent loss of earning capacity of at least 40% of pre-injury earning capacity?

64The medical opinion least favourable to the plaintiff appears to be that of his treating surgeon, Associate Professor Esser.  Notwithstanding that he accepted from the plaintiff in October 2013 that he was only capable of working between half to two thirds of a plumber’s hours, in December 2014 he did not note that the plaintiff by then was working no more than 20 hours per week and sometimes less or not at all.  The only qualification he put on Mr Mason being able to do most work, was difficulty with heavy manual work and working in confined areas. In that no reference was made to restriction in hours of work, the implication from his latest report might be that Professor Esser considered there were no such limitations on the plaintiff’s working capacity, even as a plumber.  If that is what Professor Esser meant, then I cannot accept that opinion in light of all of the other opinions, including from Dr Oliver who has been his primary treater since discharge from hospital and who has seen him consistently and regularly over the time since his injury, the opinions of Mr Doig, Dr Middleton, and also Professor Hart, and indeed the concession by the defendant that Mr Mason has been working at his full capacity as a plumber even at restricted or light duties, that being no more than about 20 hours per week.

65There is overall consensus between doctors and vocational assessors (where they considered the specific activities) that Mr Mason is incapacitated by his hip injury for duties requiring sustained standing, repetitive bending or lifting of items heavier than 10 kg (some thought 5kg), sitting for long periods, climbing or use of ladders, carrying weights up stairs, walking or driving for long distances.  There is generally consensus that he needs to be able to self-pace his work, and to have rest breaks as needed.   Further, I am satisfied from his own evidence that he has been finding over the last six months that there are times when he cannot work at all because of his pain, and that prospect is accepted by Dr Middleton and Ms Green as likely to occur for the foreseeable future.

66I also take into account that while the plaintiff has very considerable experience in the plumbing industry and at various types of plumbing work, his experience has not been at an entrepreneurial or managerial level.  He has always worked for others who have obtained the work and delegated or sub-contracted it to him.  He does have the undoubted experience to then perform that work independently, but that is not the same as dealing with project owners directly or co-ordinating or managing a larger project than just his own part of it.  He has only limited experience in account keeping, or the administration of building contracts or projects.  In my view the Konekt report overstated some of the transferable skills it listed flowing from his  experience, as wide as it has been.

67As for his supervision of other staff, he agreed in cross-examination that he was well capable of working independently without supervision, but he demurred from the suggestion he was good at working with and supervising others, saying he worked best alone.

68I accept that he has very limited ability on computers, and finds their use difficult to grasp.   He was willing to do a further computer course but it was not approved for him by the defendant’s agent.

69Taking these findings into account, I find it more probable than not that even at alternative jobs away from building sites, he would be unable to sustain duties for much more than the average 20 hours he has achieved since his injury, as that has been at restricted plumbing duties.  Further I am satisfied that any alternative job in which he was able to self-pace, move between postures or positions, perform very limited lifting and take rest breaks as needed would be unlikely to earn him the equivalent wage to a full-time job in whatever that job may be, or close enough to full-time to earn him more than 60% of pre-injury earnings.

70Whilst it is for the plaintiff to satisfy the Court on the balance of probabilities that he is unfit for any alternative suitable better paid work, I shall discuss each of the alternative jobs proposed by Ms White (Konekt).

71The job of a Construction Manager (with expected wage of $1500), was described in the Konekt report as including duties of interpreting architectural drawings and specifications; coordinating labour resources, and procurement and delivery of materials; consulting with architects, engineering professionals and other professionals, and technical and trades workers; negotiating with building owners, property developers and subcontractors involved in the construction process to ensure projects are completed on time and within budget; preparing tenders and contract bids; arranging submissions of plans to local authorities; overseeing the standard and progressive subcontractors work.

72This position was discussed by Mr Hart with the plaintiff and Mr Hart accepted the plaintiff’s view that he could not perform the work of a construction manager because it would require him to walk on uneven ground, climbing on roofs and upper floors to carry out inspections, and this would be incompatible with his condition. In my view that discussion overlooked that it was also unsuitable because despite his long experience in plumbing work including working on construction sites, Mr Mason does not have experience in composing tenders, negotiating with owners, builders and personnel, assessing costs of projects or negotiating with architects, professional engineers and others.  In my view Mr Mason does not have the present skills and nor is he likely to be able to obtain through retraining the skills to perform those roles. I am also satisfied that he does not have the physical capacity to climb, squat or go into awkward or confined spaces to inspect works on site as a supervisor or manager.

73The next suggested alternative occupation is that of couriers and postal deliveries. This was apparently initially discussed as the role of a postie on a motor scooter. I accept, as did Mr Hart, that to road ride a motor cycle or scooter would be very dangerous from him. Mr Hart mentioned that ascending stairs at some sites may create problems. I accept the plaintiff’s estimate that his sitting tolerance at most is 45 minutes to an hour, with intervals of standing every 30 minutes. I am satisfied that driving for most o the day, either for long distances, or with frequent need to get in and out of a vehicle, each time taking weight onto his right leg and hop, possibly with time pressures, and also having to carry parcels of varying size and weights is not suitable employment for him. I am satisfied that as a result of his physical injury he is unlikely to be able to engage full-time or on a sustained basis in delivery work.

74The next suggestion was sales representative with an expected wage of $1100. The duties for such a position were described as including promoting and selling their company’s goods and services, such as building and plumbing supplies; acquiring and updating knowledge of employer’s and competitor’s goods and services and market conditions; compiling lists of prospective business clients; visiting clients and retail outlets to establish selling opportunities; quoting prices and credit terms; recording orders and arranging deliveries and following up with clients; and business recording.

75Mr Hart reports that the plaintiff agreed that he would be able to perform this work and Mr Hart agreed with him that he would. In my view this interpretation of the job is likely to have overlooked the extent of driving and travelling to visit clients and prospective clients, and to carry samples or deliver stock which if plumbing supplies could well include some large and heavy items. Further, sales representatives’ earnings are usually reliant to a considerable extent on sales commissions, and it is unclear what proportion of the expected wage of $1100 would be regular and guaranteed as opposed to dependent on achieving sales.

76The reason this job seems to have been recommended was because of Mr Mason’s knowledge of product supply in the plumbing industry and it was said he has an established professional contact network that would be of benefit to him in this role. Mr impression of Mr Mason’s contacts in the plumbing industry is not of them being prospective purchasers from him. On the contrary, he explained that although a registered plumber he does not hold a plumbing licence. There is a great different between his type of contact with others in the industry and turning them into prospective purchasers of plumbing supplies from him. Finally, I note that in Ms Green’s opinion such a job was not suitable for Mr Mason.

77The next prospective job suggested by Konekt was that of a salesperson in plumbing supplies with an expected wage of $740 per week for a full time position. Mr Mason would need to be capable of working full-time in such a job to exceed 50% of his pre-injury earnings. He was cross-examined about working as a salesperson for Reece or other plumbing supplies stores in Ballarat. He agreed that if he could really work at his own pace and sit and stand at will, and was not required to left or stack racks of stock, or stand for long periods on concrete floors, he might be capable of such work. However, he ws aware that at Bunnings stores sales staff needed to stand for long periods on concrete floors, and were also required to regularly restack racks some of which were high and required use of ladders, and he expected that at Reece he would also need to lift stock quite often. He also said that the size and weight of stock sold depended on the types of plumbing supplies, and involved the salesperson carrying items to the purchaser’s vehicle.

78Ms Green considered this type of job but excluded it from suitability as sales staff often need to spend long periods on their feet, are often required to carry stock and restock shelves, and also at times are under considerable time pressures.

79Despite telling Mr Hart that he would be limited in his ability to do this work if he needed to stand for prolonged periods, carrying out lifting or to squat, Mr Hart considered that if a position was found with these restrictions it would be feasible. I do not agree that he could carry out this type of work on anywhere near a full-time  basis, and I am satisfied that if only working about 20 hours a week at it he could not exceed 60% of his pre-injury earning capacity.

80While I agree with the defendant’s submission that Mr Mason’s long experience in plumbing including in so many aspects of the plumbing trade would make him a most useful source of information for a plumbing supplies store, even the job description in the Konekt report includes assisting with the ongoing management of stock such as product inventory, and participating in stock takes, and stacking and displaying goods for sale, and wrapping and packing goods sold. I am satisfied that Mr Mason is unlikely to have the physical capacity to perform that job on a sustained full-time basis.

81The Konekt report also recommended the job of a vehicle parts interpreter, apparently because of the plaintiff’s interest in vintage cars. The duties apparently include test-driving cars. The suggestion was not addressed by Professor Hart (nor Ms Green). In cross-examination the plaintiff said his knowledge of car parts is of vintage cars, although he agreed that he might be able to learn about new cars and their parts. Despite that candid concession by Mr Mason, I am satisfied that he is unlikely to be capable of sustaining the physical requirements of such a job on a full-time basis, or a near full-time basis, or taking into account needing to self-pace at work duties, and some days being unable to attend work at all.

82Through cross examination, although not in final submissions, the defendant suggested that Mr Mason could undertake further training to obtain a full plumber’s licence thereby enabling himself to run a plumbing business which could advertise for more work. His answer was that even if he could obtain the licence – which he had never held – he would need to employ one o more other people to do the work, and he does not have the financial means to pay such wages. The defendant did not include this suggestion in its final submissions and in my view quite rightly. Even though the definition of income from personal exertion including income from a business run by the worker, I am satisfied that the restraint on his present earning capacity is not through being unable to advertise for or attract more work. The restraint is on his own physical capacity to perform more plumbing work himself as a result of his injury. I do not accept hat reasonable efforts to find suitable alternative work would require him to undertake unsustainable expenditure to debt to employ others.

Conclusions

83Overall, I am satisfied from the preponderance of medical opinion and my acceptance of the plaintiff’s own evidence, that he is permanently incapacitated for full-time work not only as a plumber at light duties, but at any alternative job for which he is suited or could become suited by retraining. I am satisfied that he is permanently limited to part-time work, probably no more on average than 20 hours a week and possibly less depending on the exertion required for his tasks, with prospective days or weeks of total incapacity, would be of no more than an average of 20 hours per week. He is unsuited to work in roles requiring periods of standing still of any more than 10 minutes, long periods of sitting, or any duties requiring climbing, squatting, repeated bending and lifting, walking on un even surfaces, or forward flexion. I am satisfied that there is no work for which he is suited at present, or could become suited by reasonable further training, that would earn him more than 60% of his pre-injury earnings for that limited period of time.

84I am satisfied that Mr Mason has undertaken all rehabilitation recommended for him, and maintains that at his own expense by personally exercising and through paying himself for hydrotherapy. I am satisfied that he has been and remains willing to undertake retraining if there were any such training reasonably likely to equip him for suitable alterative employment.

85I am satisfied that he could not be better motivated or more determined to find and engage in work earning greater income than he has been able to achieve since his injury. However, even the most stoic and determined person can only be expected to achieve what is within his capabilities, and it is his capacity for full-time work – or closer to full-time work than barely 20 hours per week – which is the real issue in this case, and which I am satisfied he is unlikely to be capable of sustaining for the foreseeable future.

86I am therefore satisfied that in a fall at work on 15 April 2010 the plaintiff suffered injury to his right hip which constitutes a serious injury not only as to pain and suffering damages, as was conceded by the defendant, but also as to loss of earnings and earning capacity within the definitions and requirements of the Act. According I propose to grant him leave to bring a claim for damages for both pain and suffering and pecuniary loss damages.

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Mason -v- Victorian Workcover Authority

SCHEDULE OF DOCUMENTS EXHIBITED

Number and Identifying Mark on Exhibit	Short Description of Exhibit	Court Book Reference
A	Affidavits of the Plaintiff sworn 24 March 2014 and 28 January 2015	CB 5-12, 13-17
B	Page 104 of the Plaintiff’s bank statement for February 2014
C	Report from The Alfred Hospital 15 May 2012	CB 18-19
D	Reports of Dr Oliver dated 26 October 2010, 3 July 2012, 24 March 2014 and 15 January 2015	CB 20-21, 22-23,24-25, 26-29
E	Reports and operation notes of Associate Professor Mr Max Esser dated 8 November 2010, 14 February 2011, 9 May 2011, 30 May 2011, 11 July 2011, 21 July 2011, 16 May 2012 and 24 December 2014.	CB 30-44
F	Report from Mr Daniel Moore dated 27 June 2011	CB 48
G	Report from Dr David Middleton dated 21 July 2014	CB 49-66
H	Report of Mr Stephen Doig dated 25 September 2014	CB 67-69
J	Radiological reports of Trauma series dated 15 April 2010	CB 70-71
CT Chest Abdomen Pelvis and Thoracic Lumbar Spine dated 15 April 2010	CB 72-73
CT Brain and Cervical Spine dated 15 April 2010	CB 74-75
Pelvis Judet Views dated 19 April 2010	CB 76
X-Ray Pelvis and Right Hip dated 11 January 2011	CB 77
X-Ray Right Hip and Femur dated 11 January 2011	CB 78
Pelvis, Right Proximal Femur dated 16 February 2011	CB 79
Pelvis and Right Hip dated 9 May 2011	CB 80
MRI Right Knee dated 30 May 2011	CB 81-82
X-Ray Pelvis / Right Hip dated 13 March 2012	CB 83
CT scan of Spine dated 27 March 2014	CB 84
CT Scanogram Leg Length and Femoral Rotation dated 13 August 2014	CB 85
Pelvis Right Hip scan dated 29 October 2014	CB 86
K	Report from Ms Katrine Green dated 29 January 2015	CB 86A-86O
L	Incident report dated 15 April 2010	CB 87
M	Worker’s injury claim form 19 April 2010	CB 88-89
N	Employers injury claim form dated 20 April 2010	CB 90-91
Report of Mr John A L Hart dated 15 August 2014	CB 129-149
NES Vocational Assessment report dated 19 March 2012	CB 158-168
NES Week 8 report dated 27 September 2012	CB 169-172