McClelland v Victorian WorkCover Authority
[2017] VCC 1922
•20 December 2017
G12
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-06067
| MICHAEL McCLELLAND | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 November 2017 | |
DATE OF JUDGMENT: | 20 December 2017 | |
CASE MAY BE CITED AS: | McClelland v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1922 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to cervical spine – where pain and suffering consequences conceded by defendant to be “at least very considerable” – whether plaintiff has established a 40 per cent loss of earning capacity – suitable employment.
Legislation Cited: Accident Compensation Act 1985, s134AB; Workplace Injury Rehabilitation and Compensation Act 2013, s274
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Humphries & Anor v Poljak [1992] 2 VR 129; Sherlock v Lloyd & Ors [2008] VSC 450; Richter v Driscoll [2016] VSCA 142
Judgment: Leave to the plaintiff to commence a proceeding claiming damages in respect of pain and suffering and loss of earnings relating to injuries to his spine suffered in the course of his employment on or about 4 November 2011.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Ms J Frederico | Maurice Blackburn Lawyers |
| For the Defendant | Mr R Stanley | Wisewould Mahony Solicitors |
HIS HONOUR:
1 On about 4 November 2011, Michael McClelland suffered injury in the course of his employment with the City of Whitehorse when he was struck by a branch of a tree. He seeks leave to commence a proceeding claiming damages in respect of the injuries suffered by him in that accident. His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”).
2 In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a) of the Act
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application as:
“(a) permanent serious impairment or loss of a body function;”
4 It can be seen that the definition does not specifically refer to any physiological injury as such, but to an impairment or loss of a body function.
5 The body function relied upon in this application is that of Mr McClelland’s cervical spine.
6 The term “permanent” is to be interpreted as meaning “likely to persist into the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18]-[19]
7 With regard to pain and suffering damages, the impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering consequences are, when judged by comparison with other cases, in the range of possible impairments or losses, “fairly described as being more than significant or marked, and as being at least very considerable”.[3]
[3]Section 134AB(38)(c) of the Act
8 In this application, the defendant concedes that Mr McClelland suffers from a “serious injury” as defined, such as to enable him to commence a proceeding claiming pain and suffering damages. It follows that the defendant concedes that the pain and suffering consequences of Mr McClelland’s injury are, when judged by comparison with other cases in the range of possible impairments or losses, “fairly described as being more than significant or marked and as being at least very considerable”.
9 With regard to pecuniary loss damages, leave is not to be granted by the Court to Mr McClelland unless he has established that, in addition to the requirements of s134AB(38)(c) of the Act, he has suffered, as at the date of the hearing of his application, a loss of earning capacity of 40 per cent or more when calculated in accordance with the provisions of s134AB(38)(e), (f) and (g).
10 The defendant denies that Mr McClelland has suffered such a loss of earning capacity. It is this issue which falls to be determined in this application.
Background
11 Mr McClelland is aged thirty-seven. He was brought up and educated in Melbourne. He completed Year 12 at school.
12 Post-school, he obtained a Certificate in Arboriculture, Certificate IV in Business (Frontline Management), Certificate II in Arboriculture and a Diploma in Horticulture (Parks and Gardens).
13 He worked as a process worker in a factory while he was still studying. From about 2002, he has worked as an arborist, initially with Citywide Tree Care, and since November 2007, with the City of Whitehorse. His duties involved inspection of trees, driving trucks and heavy machinery, operating a cherry picker and wood chipper, and the use of a variety of hand tools and power tools.
14 On 4 November 2011, in the course of his employment, Mr McClelland was using a wood-chip machine. He alleges that a branch struck him with force in the area of the left shoulder and the side of his jaw. He was struck at a level below the helmet he was wearing. He felt dazed, but worked on in pain. On the following day, he saw his general practitioner, Dr Atta, and was referred for a CT scan of his brain and neck. He developed numbness of his left arm, and pins and needles in his left hand. Shortly after, he was referred for an MRI scan of his neck.
15 Mr McClelland was referred to a neurosurgeon, Mr Paul Smith, in December 2011. He underwent an injection into his neck which gave him some pain relief, but only for about two to three weeks.
16 Mr McClelland returned to work performing light alternative duties. There were restrictions as to what weights he could lift. Pins and needles in his hand built to a level where he had difficulty holding things.
17 Mr McClelland underwent MRI scans of his cervical spine in April and November 2012; MRI scans of his left shoulder in May and June 2013 and again in June 2014; an ultrasound examination of his left shoulder in February 2013; a CT-guided left C7 nerve root block in December 2011, and a CT-guided left C7 nerve sheath injection to his neck in May 2012.
18 Mr McClelland ceased work in April 2012 and has not worked in the five and a half years since.
19 In September 2012, Mr Smith performed a fusion of the vertebrae at the C6-7 level of his cervical spine. This resulted in an improvement for a short period, but his pain, weakness and pins and needles returned.
20 In September 2013, an orthopaedic surgeon, Mr Justin Hunt, performed an arthroscopic subacromial decompression of the left shoulder, together with a bursectomy.
21 In February 2014, Mr Smith performed a second neck fusion. On this occasion, fusing the C5-6 vertebrae.
22 Mr McClelland has attended a pain physician, Dr Hamza. Unsurprisingly, he developed depression and was referred to psychiatrists Dr Vadasseri and Dr Williamson. Mr McClelland did not allege that he had suffered a non-physical serious injury as defined in part (c) of the definition of that term in the Act.
23 Mr McClelland attended a pain management program in July 2015 for six weeks.
24 By August 2015, he was not receiving any active treatment. The previous year, he had suffered a severe reaction to medication and was taken off all medication. The only medication he takes at present is Panadol Osteo.
25 Mr McClelland has been in receipt of a Disability Support Pension since September 2014.
26 Mr McClelland had not suffered from any neck or shoulder injury prior to the accident in question.
27 I am satisfied that, in the accident, Mr McClelland suffered injury to one or more of his cervical discs, resulting in neck and left shoulder pain and restriction of movement.
Pain and suffering consequences of injury
28 In his affidavits sworn in support of his application, Mr McClelland alleged, and I accept, that the pain and suffering consequences of his injury were:
(a)He has constant neck pain, particularly to the left side of his neck. There is pain present all of the time and this flares up a number of times each day. Increased neck pain is associated with headaches;
(b)Any sudden movements or jarring of his neck causes significantly increased pain. Even coughing can bring on quite intense pain in his neck;
(c)He suffers numbness in the fingers of the left hand and some pins and needles in the middle three fingers of his left hand. His grip lacks strength. He is now quite clumsy, frequently dropping things;
(d)If he sits for about twenty minutes, he suffers from increased neck pain. He is then required to get up and stretch his neck and back. After about twenty minutes of walking, his left shoulder becomes increasingly painful;
(e)Pain makes it difficult for him to sleep;
(f)He was previously a keen fisherman, but now finds it painful to hold and cast a fishing line;
(g)He finds lifting and holding his baby child to be painful and this upsets him;
(h)The level of his pain requires him to take medication – two Panadol Osteo tablets four times each day;
(i)He sweats a lot since his injury. He takes medication on a daily basis to try and control that sweating;
(j)He finds it difficult to write. He is left handed and cannot grip properly. He has difficulty holding objects in his left hand. When holding a coffee cup, he can frequently lose his grip and drop the cup;
(k)His relationship with his wife has been detrimentally affected. What he describes as “intimate relations” has been affected. Further, he suffers pain and is frustrated because he cannot work, leading to arguments with his wife. He describes himself as emotionally fragile;
(l)He has difficulty lifting his child in and out of the car;
(m)If he travels for a long period of time by car or by train, his neck becomes sore from sitting;
(n)He suffers from pain in his left shoulder, which is aggravated by repetitive activities or overhead activities;
(o)He used to enjoy playing games such as Xbox. He is now unable to sit for a long period without developing neck pain and cannot partake in this;
(p)Although he is able to do light housework, he is not able to do any gardening or home maintenance, which he previously did;
(q)His concentration and memory are affected detrimentally;
(r)He is unable to work in his chosen profession as an arborist;
(s)He has difficulty getting in and out of cars.
29 Mr McClelland was not significantly challenged about these matters in cross-examination.
30 As previously noted, the defendant concedes that these consequences are sufficient to constitute an impairment or loss of a body function which is, when judged by comparison with other cases in the range of possible impairments or losses, “fairly described as being more than significant or marked, and as being at least very considerable”.
Loss of earning capacity
31 It was not in issue that Mr McClelland was, as a consequence of his injuries, not able to work in his pre-accident capacity as an arborist. Further, it is conceded that he was not able to work in any job involving heavy lifting, or which involved strenuous use of his arms, shoulders or spine.
32 However, the defendant argued that there were light jobs that Mr McClelland could perform, notwithstanding his injuries.
33 For the financial year ended 30 June 2011, Mr McClelland’s gross income was $53,206.00, and I accept that had he not been injured, he had a capacity to earn $61,055 in the financial year ended 30 June 2014. For the purposes of s134AB(f)(ii), I accept that the gross income that he was capable of earning from personal exertion during the period within three years before and three years after his injury, most fairly reflecting his earning capacity had the injury not occurred, was $61,055 per annum, or $1,174 per week.[4]
[4]Plaintiff’s Court Book (“PCB”) 194
34 Senior Counsel for Mr McClelland conceded that, in order for him to succeed in this aspect of his application, he must establish that, as a consequence of his injuries, he is not capable of earning, from personal exertion, $36,633 (that figure being 60 per cent of $61,055). He submits that he has proved that that is the case. The defendant submits that he is capable of earning such an income performing light work.
35 On 21 October 2016, in this proceeding, a number of questions were referred by Judge Wischusen of this Court to a Medical Panel pursuant to s274 of the Workplace Injury Rehabilitation and Compensation Act 2013. Amongst those questions were the following:
“Question 2. Does the Plaintiff’s medical condition relevant to his … neck and/or cervical spine injury … result in him having:
(a)‘a current work capacity’ within the meaning of the Accident Compensation Act 1985 …
(b) ‘no current work capacity’ within the meaning of the Act?
Answer:(a) Yes.
(b)No.
Question 3:If ‘yes’ to question 2(a) hereof, what employment would or would not constitute suitable employment within the meaning of the Act?
Answer:The Panel is of the opinion that employment as a ‘Car park attendant’ would constitute suitable employment within the meaning of the Act.
Question 4: If yes to question 2(a) hereof, would employment as a:
(a)Trades assistant;
(b)Assembly worker;
(c)Car park attendant;
(d)Product sorter;
(e)Hire controller/rental officer;
(f)Trade sales assistant;
(g)Electrical apprentice;
(h)Despatch clerk; or
(i)Traffic controller –
constitute suitable employment within the meaning of the Act and, if so, for how many hours and days per week?
Answer: (a) No.
(b) No.
(c) Yes, for 35 hours over five days per week.
(d) No.
(e) No.
(f) No.
(g) No.
(h) No.
(i) No.”[5]
[5]Defendant’s Court Book (“DCB”) 22-23
36 It follows that the Medical Panel opined that Mr McClelland was fit to work as a car park attendant for 35 hours over a five-day week. It also follows, in my opinion, by reference to the Panel’s answer to Question 3, that there were no other jobs constituting suitable employment identified by the Panel.
37 Counsel for the defendant submitted that the Medical Panel opinion had to be read broadly and that I could draw an inference that what the Panel meant by its answers to Questions 3 and 4 was that, in addition to its opinion that work as a car park attendant was suitable employment for Mr McClelland, so was other sedentary work. He submitted that I should not consider that the Panel was restricting its opinion only to work as a car park attendant, but to any similar employment and, in particular, any sedentary employment.
38 I do not agree. The wording of Question 3 was part and parcel of the referral sought by the defendant. I was informed by counsel that each of the questions put to the Panel were composed by the defendant. The wording of Question 3 is wide. It enquires as to what employment would or would not constitute suitable employment. It would have been a simple task for the Panel to respond, if it meant to, by answering that any sedentary employment would constitute suitable employment for him. The Panel did not do so. It restricted its answer solely to employment as a “car park attendant”. Further, in its answer to Question 4, the Panel specifically stated that employment as a trades assistant, assembly worker, product sorter, hire controller/rental officer, trade sales assistant, electrical apprentice, despatch clerk or traffic controller, was not suitable employment for him. Again, the Panel responded that employment as a car park attendant did constitute suitable employment for him. I consider that the opinion of the Medical Panel states no more and no less.
39 Section 313(4) of the Workplace Injury Rehabilitation and Compensation Act 2013 (deemed by s622 of that Act to be a re-enactment of s68 of the Act) provides as follows:
“For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel –
(a) is to be adopted and applied by any court, body or person; and
(b)must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.”
(My emphasis).
40 Given the wording of s313(4), I see no reason to give the section any wider interpretation than is necessary. What the section says in effect is that, regardless of other evidence before the Court, if a particular question has been referred to and answered by a Medical Panel, the Panel’s opinion is binding upon the Court, regardless of what other evidence in the case is to the contrary. I do not consider that the legislature intended that Medical Panel opinions were to be interpreted other than by reference to their plain words.
41 Here, the opinion of the Medical Panel is that employment as a car park attendant would constitute suitable employment for Mr McClelland. Other suggested jobs put to the Panel were, in its opinion, not suitable employment for him. There are no other relevant opinions proffered by the Panel.
42 I reject the defendant’s submission that the Medical Panel’s opinion should be interpreted as meaning that any or a wide range of sedentary employment would be suitable employment for Mr McClelland.
43 The principal submission put on behalf of Mr McClelland was that he was not fit for any employment – car parking attendant or otherwise. Evidence as to this issue was:
(a) Dr Ales Aliashkevich, neurosurgeon, who said:
“When taking into account your client’s level of pain, medication requirements, functional limitations, his skills, education and training and his failure to respond to previous neck and shoulder surgeries with the development of chronic pain syndrome, not amenable to a multidisciplinary pain management program, I do not think that he has any realistic capacity to work on a reliable, permanent and consistent basis.
…
Having regard to the factors listed [above], I consider your client’s total incapacity for work as a (sic) being permanent. I do not see any realistic treatment options available that may restore his work capacity to the level when he will be able to work on a reliable, permanent and consistent basis.”[6]
[6]PCB 123
(b)Mr Russell Miller, orthopaedic surgeon, referred to the Medical Panel opinion concerning work as a car park attendant in the following terms:
“… This would be theoretically possible provided it meets with the criteria in terms of the work restrictions as outlined in my report dated 25/8/2016 … .”[7]
[7]PCB 126
In that earlier report, Mr Miller said:
“The client will have ongoing work restrictions in terms of the left upper extremity. He could not undertake work that involves repetitive left arm actions, use of the left arm in the above shoulder position or lifting of weights more than 5 kg. He will not be safe to work at heights. He will not be safe to climb. I note the client is left hand dominant. He is really effectively now only suitable for sedentary type duties and a return to work will be problematic in this case due to the ongoing effects of the work related injury.”[8]
[8]PCB 136-137
(c) Dr Robyn Horsley, occupational physician, opined in October 2017:
“… I felt that he was permanently unfit for the critical physical demands of his role as an arborist. … I felt that he would benefit from considerable assistance to encourage him to consider return to work options, at least on a part-time basis. I felt that he had capacity for work in a sedentary role in the vicinity of 15 to 20 hours per week initially. The area of retraining and upgrading of skills would determine his overall capacity into the longer term.”[9]
[9]PCB 159
(d)Ms Katrine Green, psychologist, opined in September 2015 that work as a labourer (general), a delivery driver, a factory process worker or a retail sales assistant were not physically suitable for Mr McClelland. Further, she went on to say that:
“… it is concluded that due to Mr Michael McClelland’s neck [cervical spine C5/6] injury and current physical capacity, he is unable to perform the inherent duties of his previous occupation or inherent duties of any suitable employment within the foreseeable future.”[10]
(e)Dr Helen Sutcliffe, occupational physician, opined in July 2015, that Mr McClelland was not fit for retraining into any occupation that requires manual handling or repeated use of his upper limbs.[11] She came to the conclusion that he was unfit for suitable retraining;
(f)Ms Mary Oliver, human resources consultant, opined in October 2017 that Mr McClelland said as follows:
“From a recruitment view, the duties of a car park attendant have multiple aspects. Firstly, they may be required to park a vehicle for clients in tight and/or awkward spaces, which involves an ability to turn your head as needed for clear vision to avoid damage to vehicles. Secondly, a car park attendant may work in a pay station and therefore long periods in a seated position and repetitive use of arms when operating computer terminal and handling cash are required and dictated by the traffic flow. This may not make allowance for postural changes or breaks on an as needed basis, especially in peak trading periods … I cannot envisage from a recruitment perspective that he could adequately perform even the basics of a car park attendant role to commercial standards. Taking all factors into consideration, in my opinion as a recruiter, I believe due to Michael’s neck and left shoulder injury and consequential aggravated pain and symptoms, he would be detrimentally inhibited in meeting the requirements to perform the duties of a Car Park Attendant in a reliable, consistent and productive capacity and especially if placed under pressure in busy times. Therefore this position would not be viewed as suitable alternative employment for him.”[12]
[10]PCB 154
[11]PCB 183
[12]PCB 195
44 In addition, l was referred by Counsel to the definition of “suitable employment” in s5 of the Act to which the Medical Panel had been referred. The definition requires having regard to:
(a)The nature of the worker’s incapacity and the details provided in medical information, including, but not limited to, the Certificate of Capacity supplied by the worker – referred to above.
b)The nature of the worker’s pre-injury employment – referred to above.
(c)The worker’s age, education, skills and work experience – referred to above.
(d)The worker’s place of residence – in this case, Traralgon. (My emphasis)
(e)Any plan or document prepared as part of the return-to-work planning process – none was tendered other than the medical and vocational reports referred to above.
(f)Any occupational rehabilitation services that are being, or have been, provided to, or for, the worker – there was no evidence of such.
45 The definition further provides that suitable employment is to be considered regardless of whether the work or the employment is available, or whether the work or employment is of a type or nature that is generally available in the employment market.[13]
[13]Section 3 of the Workplace Injury Rehabilitation and Compensation Act 2013 and Section 5 of the Act
46 Mr McClelland resided in Pakenham until last August. I accept his evidence that, as a consequence of his injuries and the need for further support for his wife, they moved to Traralgon where Mrs McClelland’s parents and other family members reside. I consider that the reasons for the move to Traralgon were bona fide.
47 The evidence of Mr McClelland is that there are no cark parks requiring a car park attendant in Traralgon, or in the Traralgon area. I am aware and take judicial notice that Traralgon is a relatively small town in Gippsland but nevertheless is the major town in the area and that smaller towns in the vicinity of it are even less likely to have car parks requiring car park attendants. Further, I note that Ms Oliver, in her report, notes that her searches revealed no car park attendant jobs available in Traralgon or within a 50-kilometre radius of it.
48 The non-existence of jobs involving a car park attendant in Traralgon and the surrounding district was not challenged by the defendant at the hearing of the application.
49 I have taken into account the evidence of Dr Michael Bloom, occupational and environmental physician, who opined in April 2016 that Mr McClelland had the capacity to work as a despatch clerk and as a traffic controller. He reached this conclusion, notwithstanding acknowledging that the physical demands of work as a traffic controller included manual handling (lifting and dragging) of bollards and cones weighing up to 12 kilograms. He understood that large and awkward signage was handled by two workers. Notwithstanding Dr Bloom’s approval of work as a despatch clerk as being suitable for Mr McClelland, I am bound by the opinion of the Medical Panel that such work is not suitable employment for him.
50 I note the evidence of Ms Oliver:
“… I am not confident that due to the distraction of his constant pain, symptoms such as headaches, ‘shocking’ memory and poor to average concentration and impairments he would have a realistic capacity to succeed in an administrative environment, undertake light bench type work or undergo structured retraining. As a recruiter, I noted that Michael was unsuccessful in his return to work attempt at City of Whitehorse when performing modified traffic management duties due to aggravation of his pain and injuries.”[14]
[14]PCB 193-194
51 I consider that it is difficult to come to any positive finding as regards Mr McClelland’s suitability to work as a car park attendant without knowledge of the full duties that he would be required to perform during the course of each working day. It seems likely to me that such work would involve manoeuvring of vehicles within the car park, at least from time to time.
52 However, I do not consider that it matters, in the context of this particular claim, whether Mr McClelland might be able to perform such duties. The evidence before me is clear. There are no car park attendant jobs in the area where he resides, or in the surrounding area. Further, if it be relevant, I accept Mr McClelland’s evidence was that there were no such jobs in Pakenham, a larger town where he previously resided.
53 The definition of “suitable employment” in s5 of the Act expressly directs me to take into account his place of residence. Those words must have some meaning. I consider that the issue as to whether there is suitable employment for a particular applicant might be determined by the place or region where he or she resides. If the applicant lived in a large city such as Melbourne, various jobs might exist there. If he was capable of working in such a job and earning more than the 60 per cent figure calculated in accordance with s134AB(38)(f) (ii), his application would be likely to fail. If he lived in a smaller town, the evidence might be that no such suitable employment existed there or nearby.
54 I am satisfied that, in Traralgon and in the general area in which he resides, there are no car park attendant jobs in existence. Hence, there is no suitable employment for him, having regard to his place of residence.
55 In Sherlock v Lloyd & Ors,[15] the Medical Panel had said that, from its own knowledge, jobs constituting suitable employment did exist near to the plaintiff’s residence in “outer suburban Melbourne”.[16]
[15][2008] VSC 450
[16]Sherlock at paragraph [9]
56 The reasons of the Medical Panel for their opinions in this case were not tendered and not the subject of submissions before me. I infer that the Panel made no similar statement concerning its own knowledge of the existence of suitable jobs as the Panel had done in Sherlock.
57 In Sherlock, Kyrou J said:
“The question of whether book-keeper and administrative assistant jobs exist near the plaintiff’s place of residence in Mornington is relevant to the question of whether the plaintiff has a current work capacity, as the definition of ‘suitable employment’ in s 5(1) of the ACA lists the worker’s place of residence as one of the factors that the panel had to take into account. However, in Barwon Spinners Pty Ltd v Podolak and State of Victoria v Rattray, the Court of Appeal made it clear that what is relevant is the existence of work near the worker’s place of residence rather than the availability of such work. In other words, if the plaintiff is capable of working as a book-keeper or administrative assistant and such jobs exist near her place of residence, the definition of ‘suitable employment’ is satisfied whether or not there are vacancies for such jobs. The Court of Appeal also indicated that the concept of proximity to a job is relative. If a worker lives in Melbourne, a job in Mildura is not near. Also, if a worker lives near a country town, proximity must be determined by reference to the relevant region. It follows that if a worker lives in a Melbourne suburb and jobs exist within commuting distance in other parts of Melbourne, proximity is satisfied.”[17]
[17]Sherlock at paragraph [14] (citations omitted)
58 Similarly, in Richter v Driscoll,[18] Ashley and Kaye JJA (with whom Osborn JA agreed), said:
“… whether a worker has ‘no current work capacity’, according to the definition, depends in the first place upon whether the worker has an inability to work in his or her pre-injury employment. It would be contradictory if, in determining that question, one was confined to an examination of the worker’s physical capacity to perform a particular task or tasks in that employment. For if it was concluded that there was such capacity in a particular case, one would never get to the question whether the worker was able to return to work in ‘suitable employment’, which specifically requires consideration of matters travelling beyond physical capacity to perform a task. In our view, inability to return to work in pre-injury employment must encompass consideration of circumstances akin to, but not necessarily limited to, the matters set out in paragraphs (a)(ii), (iii) and (iv) of the definition of ‘suitable employment’. A simple example will illustrate the point. Suppose that a worker was adjudged physically able to perform the tasks required by his or her pre-injury employment, but that the employer’s place of business was so far distant from the worker’s place of residence that the continuing level of incapacity precluded travel to and from that workplace. If inability to return to work in pre-injury employment began and ended with consideration of a worker’s physical capacity to perform the tasks required by the job, then the worker would be held to have the ability to engage in his or her pre-injury employment. But if the question was whether the worker had the ability to work in ‘suitable employment’, the worker’s place of residence would be relevant — either because there was simply no ‘suitable employment’ in the area where the worker resided — the ‘Melbourne residence/Mildura work’ situation — or else because the area in which ‘suitable employment’ must have existed was confined by incapacity-caused limits upon the worker’s ability to travel.”[19]
[18][2016] VSCA 142
[19]Richter at paragraph [77]
59 Likewise, in Barwon Spinners, the Court said:
“The concept of ‘suitable employment’ will, of course, give rise to difficulties from time to time, but the thrust of the definition is plain enough. It looks to the possibility of employment after injury; hence the reference to ‘work for which the worker is currently suited’. Age, education and experience are among the matters relevant, as also are the nature, and no doubt extent, of the worker’s incapacity and, of course, pre-injury employment. Obviously employment is not to be regarded as ‘suitable’ if situated too far from the worker’s place of residence; and so a specialist factory in Mildura will not ordinarily be regarded as providing ‘suitable employment’ for a worker resident in Melbourne. The expression ‘whether or not that work is available’ emphasises that the definition is looking to the capacity to work, meaning the physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is ‘suitable employment’, whether or not the job is currently available.”[20]
[20]Barwon Spinners at paragraph [25]
60 Mr McClelland has satisfied me, on the balance of probabilities, that his injuries prevent him from engaging in suitable employment. Accordingly, I am satisfied that he has established a loss of earning capacity of more than 40 per cent when calculated in accordance with s134AB.
61 Accordingly, there will be leave to Mr McClelland to commence a proceeding claiming damages in respect of pain and suffering and loss of earnings relating to injuries to his spine suffered in the course of his employment on or about 4 November 2011.
62 I shall hear the parties in relation to any consequential orders sought.
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