McMaster v Cornonero Pty Ltd
[2019] VCC 1903
•14 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
CI-19-02748
| McMaster | Plaintiff |
| v | |
| Coronero Pty Ltd & VWA | Defendant |
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JUDGE: | Murphy | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 12 , 13 November 2019 | |
DATE OF JUDGMENT: | 14 November 2019 | |
CASE MAY BE CITED AS: | McMaster v Cornonero Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1903 | |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION
Subject: serious injury application – chronic back pain – whether injury permanent – pain and suffering and loss of earning capacity – whether residual work capacity – suitable employment - Whether the plaintiff has suffered the relevant 40 per cent reduction in work capacity
Legislation: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases: Petkovski v Galletti [1994] 1 VR 436 - Cardoso v Staff Australia Payroll Services [2019] VSCA 139 - Richter v Driscoll [2016] 51 VR 95 - Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
Judgment: For the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Ingram QC with Mr A. Hill | Dellios Lawyers |
| For the Defendant | Dr J. Plunkett | Minter Ellison |
HIS HONOUR:
1 The plaintiff seeks serious injury certificates for loss of earning capacity and pain and suffering damages arising out of an incident on 22 March 2017 when he injured his back in the course of his duties as an OH&S representative and labourer with the defendant, a building company. The defendant resists the application on the basis that the plaintiff has not discharged his burden that the injury he has suffered is permanent in the sense of for the foreseeable future.
2 The defendant also contests that the plaintiff has discharged his burden that he has suffered at least a 40 per cent loss of earning capacity as a result of the injury. The defendant also submits that the pain and suffering consequences of the injury do not meet the test of being within the range of possible consequences at least very considerable, and as set out in section 323 of the Workplace Injury Rehabilitation and Compensation Act 2013.
The injury and its aftermath:
3 The circumstances of the occurrence of the plaintiff's back injury were not the subject of substantial contestation and are contained in his affidavits and in a statement signed by him for the insurance investigator[1]. On 22 March 2017 the plaintiff, who at that point was aged 59, had been working for the defendant and a predecessor business since 2006 as an OH&S representative/shop steward/labourer. The company was building an apartment complex in Brunswick East and was somewhat short-staffed as well as under financial pressure.
[1] Plaintiff’s Court Book (CB) 1-11 (affidavit)
4 The plaintiff was assisting another worker to clean up the site by emptying wheelie bins containing building rubble and putting them in a skip. As he was lifting one of the bins with the other employee, he felt a stabbing pain to his lower and upper back and told his fellow worker that he had hurt his back. He reported this to the site manager, Mr Peacock. He finished the day's work without doing any further heavy work.
5 He was in a lot of pain as he drove home and took Panadeine Forte and had trouble sleeping that night. The pain got progressively worse and travelled down his leg. The following day he rang his employer and did not go to work. On the Friday although his back was still sore he took painkillers and went to work. He walked up a set of stairs and stopped on the roof for 20 minutes and was only able to stand on one leg. Around 1 pm he was called to the lunchroom and told by the project manager that the site was closing down and all employees were terminated.
6 At that time he told the project manager, Mr Cameron, that he wished to officially report the incident that happened two days previously. He was referred to Mr Peacock who then completed an incident report which was signed by the plaintiff. The plaintiff had told Mr Peacock at that stage that he intended to see a doctor. The plaintiff subsequently saw a doctor the following week. He saw his local doctor, Dr Ali, on 27 March and x-rays were performed on 29 March.
7 Dr Ali diagnosed the injury as 'ongoing lower back pain due to bulging discs'. He was seen by Mr Buzzard for the insurer on 19 April 2017, who diagnosed the injury as 'an aggravation of pre-existing degenerative disease in his lumbar spine'. Mr De La Harpe notes in a report that the plaintiff probably:
'has degenerative and discogenic lower back pain without significant neural compression.[2]’
[2] Plaintiff Court Book (CB) 34
8 In a report dated 30 September 2019, Dr Silcock’s for the defendant, describes the plaintiff as suffering from mechanical back pain,
'While there are some discogenic features there is no evidence of neural compression.[3]'
[3] Ibid 39
9 In closing address, Senior Counsel for the plaintiff stated that this was not an aggravation case. He conceded that there was some degenerative change in the spine but this had been largely asymptomatic and thus this was a frank injury. He submitted that the clinical records tendered by the defendant supported this. Thus it was not an aggravation case and in any event under the principles of Petkovski v Galletti[4] it was for the defendant to separate out or disentangle any prior injury, which the law would require.
[4] [1994] 1 VR 436
10 In his report dated 27 September 2019, Dr Low’s diagnosis is “spondylolisthesis workplace aggravation, ongoing lower back pain and left leg pain with most likely L5 nerve root pain from the L5-S1 spondylolisthesis with a degenerative disc at L5-S1.” A physiotherapist in plaintiff's court book opines that the injury is 'disc injury at L5-S1 and a left sacroiliac joint pain.[5]' Mr Bruce Love, opines that the plaintiff's 'lumbar spine condition is that of moderately severe lumbosacral disc degeneration with a disc protrusion at that level.[6]' He concluded that employment was a significant contributing factor.
[5] CB 32
[6] Ibid 49
Conclusion
11 The consensus of the medical opinion would indicate that the plaintiff had underlying degenerative spinal problems. It would appear that following the event the plaintiff, however, had significant lower back pain with nerve root involvement thus the injury could be described as a frank injury. The plaintiff's evidence was that while he had been to the doctor a couple of times previously for back pain this had never caused him any significant lost time.
Post injury events
12 The plaintiff has not worked since his employment was terminated, consequent upon the closure of the business. In his affidavit he indicates that he was referred to Mr De La Harpe, who indicates that he was not a candidate for surgery. He had physiotherapy and was prescribed Panadeine Forte medication. He also undertook hydrotherapy and continues that to this date. In his affidavits and in his evidence the plaintiff indicated that as a consequence of the pain that he was suffering as a result of the injury, it had had a major impact on his day to day living and his enjoyment of life.
13 He was strongly pressed in cross-examination as to his prior use of medication. He accepted that on previous occasions he had been prescribed Panadeine Forte and Valium. He maintained, however, that since the accident his consumption of Panadeine Forte had increased considerably. The medical records seemed to support his evidence on this point, and they also support the only occasion attendances for back pain. In his affidavits the plaintiff details the significant impact on his day to day life as the result of the pain and the restrictions consequent upon his injury.
14 He has taken Panadeine Forte, Indocin, Valium, and more recently Prednisolone. He uses a back brace when his pain is bad. He cannot play with his grandchildren. He has difficulty using his ride-on mower and sleeping. The pain varies from moderate to severe at times and keeps him awake two to three times a week, and he struggles to sleep without taking Valium. Driving and sitting for extended periods aggravate his pain and the consequences of his disability have caused him to cease intimacy with his 40 year of wife.
Is the injury permanent?
15 The defendant put in issue as to whether the plaintiff's condition was permanent in the sense of being long term. That requires the plaintiff to satisfy the Court that the condition will persist through the foreseeable future without mending or repairing to any significant extent. The onus of proving permanence is on the plaintiff. The defendant referred to answers given by the plaintiff in cross-examination where he indicated that he may return to see Mr De La Harpe about possible surgery.
16 The plaintiff indicated that he was not going to take any action until the claim was over. The defendant referred to Cardoso[7] where the court indicated that in circumstances where the plaintiff was going ahead with treatment that Court in that case were not satisfied that it was really going to make a material difference. Here the defendant put on the basis of the plaintiff's evidence that surgery might be on the cards and the court should infer that if surgery were to go ahead, the plaintiff could not establish that it would not make any material difference. On that basis the plaintiff had not discharged his burden that the condition was permanent.
[7]Cardoso v Staff Australia Payroll Services [2019] VSCA 139.
17 In his affidavits the plaintiff does not refer to the possibility of surgery. Dr Ali the GP, on 14 August 2018 indicates that from his surgeon's communications, the plaintiff was not a good candidate for surgery[8]. He confirmed this in a report dated 3 October 2019. Mr De La Harpe in his report dated 20 August 2017 indicated that surgery was not indicated[9]. Mr Love indicates that the option of surgery could be considered but there is no certainty of a positive outcome[10].
[8] Plaintiff CB 23
[9] Ibid 34
[10] Ibid 51
18 Dr Low, indicates that he would not be a good candidate for fusion surgery[11]. The medical reports on the above basis indicates that this is not a case where surgery is unequivocally indicated. The statements of the plaintiff under cross-examination do not alter that position. On that basis I accept the plaintiff's submission that his condition is permanent in the sense that it is likely to persist for the foreseeable future.
[11] Defendant CB 81
19 This is also supported by the medical opinions, which is that the plaintiff's condition is unlikely to improve. The evidence from Dr Ali is that the plaintiff will require continuing ongoing pain management in order to cope with his back pain, and this will continue in the long term. He indicated,
'Mr McMaster's injury is still causing ongoing pain and he is not a prospective candidate for surgery. As he is not a prospective candidate for surgery, it is likely that these pains will continue long term'. He regarded the plaintiff’s prognosis as fairly poor.[12]
[12] Plaintiff CB 26
20 He also says in a report dated 3 October this year, 'This is due to the combined factors of not being a good candidate for surgery, the worsening of his pain and the prolonged period of unsuccessful recovery which has caused psychological depression and lack of motivation in his daily activities.':
'On recent review Mr McMaster appears unable to work even modified duties due to his back pain. He will require ongoing pain management in order to cope with this.'
'Despite the fact Mr McMaster is still independent in his movement and personal activities, his physical injury has impacted heavily on both his social life and his mental state.'
'Mr McMaster's back injury has placed long term restrictions on his domestic, recreational and employment capabilities as he will always have to limit his lifting and heavy duties. As to the social restrictions, this will be dependent on his psychological recovery and may take quite some time to regain his confidence.'
21 Dr Lowe indicates that Mr McMaster has no capacity for work at the moment.[13] Certificates from his treating doctor show that, dated 27 September 2019. He also indicates that his condition would not allow him to go back to work in construction, and he also notes that his mechanical pain prevents him doing the only work he was trained in. A physiotherapist, Ms Wilkinson, indicates that when she last saw the plaintiff, it was her view that there would be long term restrictions.[14]
[13] Defendant CB 81
[14] Plaintiff CB 63
22 Dr Silcock, opines that the plaintiff 'was indefinitely incapacitated for his pre-injury work.[15]' She indicates that the consequences of his injury would continue, for and throughout the foreseeable future and the pain was likely to continue on a long term basis. The plaintiff is unlikely to improve significantly in the foreseeable future. Mr Love, indicates that the consequences of the plaintiff's work injury are likely to continue throughout the foreseeable future.[16]
[15] Paintiff’s CB 40
[16] Ibid 51
Conclusion
23 On the basis of the material that I have just referred to, I am satisfied that the consequences of the plaintiff's lower back injury are likely to continue for the foreseeable future and thus I do not accept the defendant's submission that the plaintiff has failed to discharge his burden that his injury and incapacity is permanent in the sense described in Barwon Spinners[17].
[17]Barwon Spinners Pty Ltd v Podolak; St Laurence Community Services (Barwon) Inc & Ors v Gledhill; Stojanovski v Bartter Enterprises Pty Ltd & Ors; Pausak v Barwon Health & Ors [2005] 14 VR 622
The pain and suffering consequences
24 In his two affidavits, the plaintiff as I have noted gives evidence of the impact of the pain on the plaintiff’s day to day activities and on his ability to work. In particular as a result of the injury he now has significantly increased consumption of his prescription medication. He conceded that he had been prescribed Panadeine Forte and Valium in the past.[18] A perusal of the medical records in evidence confirms this. However, while he has been prescribed Panadeine Forte for back pain previously it was for a relatively short period and episodically.
[18] Transcript (T) 42.14-23
25 Significantly he was not challenged in his evidence that any prior occasions of back pain caused him any loss of employment. The plaintiff's evidence as to the consequences of the injury was that it had a major impact on his daily activities, including gardening, playing with his grandchildren, cleaning out his chicken coop and assisting his wife in domestic duties. He states that driving and sitting for extended periods aggravates his pain. He is slower doing things now and the pain fluctuates.
26 The injury has affected his recreational activities. He has also put on a significant amount of weight. There is consistency in the complaints made by the plaintiff as to the impact of the injury on his day to day activities and his mobility. That is consistent with what he has told doctors in the histories. His use of medication is significant and that is a relevant factor in determining the pain and suffering impact of the injury. The plaintiff's complaints of pain and suffering as a consequence of the injury are relevant to the central matter in this dispute in the hearing which was his loss of earning capacity, if any, as a result of the injury.
The plaintiff's work capacity
27 The central issue in the proceeding was whether the plaintiff could satisfy the Court that he had sustained at least a 40 per cent reduction in his earning capacity. It was common ground that the plaintiff was earning in excess of $115,000 per annum in the previous year of his cessation of employment, and he had to satisfy the Court that as a consequence of the injury he was unable to earn at least 60 per cent of the pre-injury earning, which amounted to $1,770 per week.
28 In evidence there were a number of certificates of capacity that had been provided by his general practitioners. The certificates indicated that the plaintiff has a capacity for suitable employment with specific restrictions on activities such as sitting and standing. He is unable to sit or stand for a long period and there were restrictions on his ability to lift and move weights. The certificate dated 18 April 2019, in the Defendant's CB11 indicates that the plaintiff had had a flare-up of his back and leg pain.
29 The earlier certificates indicated consistent modifications required that affected his work capacity. In his affidavits the plaintiff indicated that he left school at 14. He attempted unsuccessfully to establish his own business after the accident by purchasing a forklift. That involved purchasing a forklift and hiring it out. He has ceased that business as it was unsuccessful. He is “no good” at computer skills, although he did a short course. He had to stop mowing the lawn in recent times due to the back pain.
30 With his limited education he does not believe that he has a work history in sedentary type jobs. He does not believe anyone would employ him. It was the defendant's position that the plaintiff had the capacity to perform a position identified by a vocational assessment as an occupational health and safety advisor/coordinator[19]. Much of the cross-examination of the plaintiff sought to establish that the plaintiff's long experience as an OH&S representative and union representative and labourer in the construction industry was such that the plaintiff had the skills that met the job criteria set out.
[19] Defendants CB 123
31 In evidence-in-chief the plaintiff essentially denied that he was able to undertake the bulk of the duties set out. When the various duties were put to him in cross-examination he made some concessions against interest that he may be able to perform some of the duties. The thrust of his own evidence was that in his role as an OHS elected representative he was reactive.
32 This is set out in paragraphs 22 and 23 of the statement the plaintiff made to his employer[20] where he said that his employment included inducting workers at the site, speaking to subcontractors, being responsible for introducing subcontractors on to the site, making sure contractors had their safe working methods statements and ensuring that all safety procedures and policies are in place and discussing any issues arising from OH&S. 'I am normally supervised/answer to the job foreman/supervisor on the job site that I am working on at any given time.'
[20] Defendants CB 141
33 He indicated in evidence that he had never been specifically employed by an employer in an OH&S role, rather his role was as an elected representative of the workers in the OH&S field. His role then was effectively to police OH&S policies on the site. Those policies and procedures had been generated by others. The duties involved in the subject position clearly envisaged that the position required that the incumbent generate various policies, plans and programs. As indicated the plaintiff is now aged 61 and left school at 14, that is year 8 or 9.
34 Dr Silcock in her report is of the opinion that the plaintiff is indefinitely incapacitated for his pre-injury work. In terms of his capacity for suitable employment she opines:
'I do not believe he has a capacity for suitable employment in the open labour market. His injury precludes him from doing the sort of work he has done in the past. He also has several barriers to finding work, namely his low level of education, his past work experience as a labourer and his age, 61. I do not believe he has a capacity for suitable employment.[21]'
[21] Plaintiff CB 40
35 She then considers the jobs that were set out as suitable employment in the Nabenet assessment and says, 'None of these are applicable as I do not believe that Mr McMaster is fit to undertake suitable employment.' She goes on to say she does not believe he is suitable to undertake any retraining. In an assessment done by Ms Wilkinson, the plaintiff was found to have average reading, writing and numeracy abilities.
36 Ms Wilkinson opines in a report, and I incorporate the whole of p.645 of the report into my reasons where she indicates:
‘Mr Mc Master reports a number of physical restrictions which will impact significantly on him in pursuing employment. He is restricted in sitting for long periods, standing or walking. He is unable to push, pull, climbing, twist, bend or lift heavy items. He would be unable to perform any task that was repetitive-based and required long periods of standing, twisting and lifting. Mr McMaster’s physical limitations will prevent him from returning to his pre-injury employment as an OH&S Representative/labourer for which he is reasonably trained and has over 25 years of experience.
Mr McMaster reports significant and impacting pain, which affect his capacity for employment. Mr McMaster reports pain in his lower back causing sciatic pain radiating into his left leg. Mr McMaster states that the pain is constant although varying in intensity and he relies on medication and rest (usually lying down) to manage pain.
Mr McMaster presents with psychological sequelae such as poor sleep, irritability and low mood. He stated that at times he struggles to cope with his pain levels as well as the impact his injury has had on his social and family life. In addition, Mr McMaster is 61 years of age and this is a significant barrier for him.
Overall given the information provided from my assessment with Mr McMaster it is my opinion that given the barriers that he faces, including his age, physical restrictions, pain, lack of appropriate skills and experience and reduced reliability and productivity that Mr McMaster does not have a current capacity for a labour market reasonably accessible to him. Furthermore it is reasonable to say that no employer would knowingly and willingly hire him over other equally qualified and skilled candidates.[22]'
[22] Plaintiff CB 64
37 Dr Lowe says in his opinion,
'Referring to the OH&S advisor position. An OH&S advisor/coordinator, health and safety planning, inspecting and auditing workplace processes and plants for chemical and physical hazards for compliance.[23]'
'Theoretically he could do this but in reality with back and leg pain and all the medication that he is on with an inability to concentrate and his ongoing complaints I believe he would find this job difficult to fulfil in a financially viable manner suitable for both himself and any potential employer.'
[23] Defendant CB 80
38 He then goes on to indicate that he has been in construction all his life:
'This is all he knows. He has various tickets all related to construction and he was a union representative and health and safety officer before he did his back. He did not have back pain before he injured his back. He now has back and left leg pain. He has to take medication to relieve the pain. It has had a huge effect not only on his work but on his social life and his home life.'
39 Dr Slesenger is of the opinion that the plaintiff could undertake the OH&S advisor/coordinator role, and also could undertake positions as a forklift driver and a Manitou operator, with restrictions on pulling, lifting and repetitive bending and no prolonged static positions.[24] Dr Wilkins, at was of the opinion that he could undertake part-time work, sedentary work, probably not on building sites but he needs a review subsequently.[25]
[24] Defendant CB 79
[25] Defendant CB 44
40 Mr Buzzard, was of the opinion the plaintiff was capable of work on the basis that he had a light work back. He was of the opinion that he could work in modified duties full-time.[26] The plaintiff maintained in his evidence that he would be unable to discharge a duty that required long periods of sitting, such as driving a forklift.[27]
[26] Ibid CB 18, 34
[27] Ibid 35
Consideration.
41 In assessing where the weight of the evidence is in relation to the plaintiff's employment capacity, the credit of the plaintiff is highly relevant. There is a conflict to some extent in the medical opinions. The defendant urged me to accept the opinions of Mr Buzzard and Mr Wilkins over the opinion of Ms Wilkinson as to the plaintiff's capacity to undertake alternative employment. The plaintiff reminded the Court of the definition of suitable employment.
42 The defendant on the other hand reminded the Court that the plaintiff gave evidence that he had undertaken a union OH&S course around 20 years ago, and had a number of occupational licences and a certificate in OH& S, although the contents of that certificate were not clear. He had worked in the industry for many years and thus had transferrable skills. The plaintiff's counsel contested that the plaintiff was in a position to discharge the skills required in the position identified by the defendant.
43 The details of the duties required cover a wide range of duties. Taking the plaintiff's current duties as those set out in paragraphs 22 and 23 of the statement, then he is clearly capable of some of the duties listed. Having considered the opinion of Ms Wilkinson, however, and the responses of the plaintiff under cross-examination as to the duties, I am satisfied that essentially he has been a reactive employee and not involved in high level advising and planning and coordinating and training that are set out in the duties required as set out in the defendant's court book[28].
[28] Defendant CB 123
44 While the specific job at Woolworths was only one example of a position of that nature, it is clear even from the list of duties there that they are a much higher level than what the plaintiff has ever undertaken and he would struggle to be qualified for many of those duties. In assessing the response of the plaintiff to the challenges as to his work capacity under cross-examination, his credit is important. I have had regard to the responses where he was frank enough to indicate that he had some transferrable skills but that he did not have wider skills that involved preparation of reports and development of company policies.
45 The example he used most was safe working methods. His role was to ensure that they were complied with but it was not his job to develop safe working methods policies. Further, even though he may have been involved with workers returning to work, he was not responsible for planning such activities or for supervising those employees. He indicated that he had never been involved solely in an OH&S role as opposed to incorporating that with other aspects or duties as part of his broader role.
46 In considering whether the plaintiff is capable of suitable alternative employment, his very basic level of education and current age are both significant considerations in whether the plaintiff would have the flexibility to redeploy skills that he had acquired over the years to the tasks set out from the generic position of an OH&S advisor.
47 As Ms Wilkinson said:
'In my opinion Mr McMaster does not have the experience or skills to pursue employment as an OH&S advisor/coordinator with his skills limited to those of an OH&S representative. He has no office or computer skills and no experience in planning or writing policy. Mr McMaster would not have the skills required to pursue those roles. In my opinion Mr McMaster would not be suited to any employment options noted above due to the repetitive physical requirements of these positions.[29]'
[29] Plaintiff CB 63
48 And she noted that while there are some sedentary roles for the OH&S representative there were no computer skills required in the jobs that he had discharged. I was urged to prefer the opinions of Mr Buzzard and Dr Slesenger over that of Ms Wilkinson. I prefer her evidence as she has undertaken a more elaborate analysis of the plaintiff's past experience and sought to match it against the requirement of the position identified in the defendant's court book[30]. Thus I find her opinion more cogent and I prefer it.
[30] Defendant CB 123
49 I have also had the opportunity to consider the responses of the plaintiff under intense cross-examination of Dr Plunkett, and found him a frank witness who was prepared to admit his limitations but also concede his prior experience. Also in assessing the credit of the plaintiff in relation to his physical capacity I give regard to the general consistent opinions by doctors that they have observed him as providing a genuine presentation. This is supported by the video surveillance which did not undermine the credit of the plaintiff.[31]
[31] Exhibit 2
50 I also take into account my own observations of the plaintiff in the witness box and it is clear that he appears to have genuine difficulties in remaining seated for any extended period. He also appears to have general mobility impediments and this is confirmed by the video. In Richter v Driscoll, which was referred to by both counsel, Justice Osborn said,
“Ability to return to work in employment is not simply dependent upon capacity to undertake physical - undertake a particular task. The concept of return to work in employment necessarily engages the question of the worker's employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension the object of providing just and adequate compensation to workers will be defeated. The object of containment of cost is not intended to prevent this from being achieved.[32]”
[32]Richter v Driscoll [2016] 51 VR 95, [143]
‘A worker may have no ability to return to work if the combination of his or her personal characteristics, such as age, lack of qualifications and lack of employment experience, together with his or her physical limitations render him or her in reality unable to obtain employment. This is not to equate ability to return to work with able to find work - obtain work or able to find work as the respondent submits, but simply to acknowledge that ability to return to work and employment must be addressed holistically.[33]'
[33] Ibid 144
These comments have some relevance here. The plaintiff also submitted that the defendant carried an evidentiary onus on the question of suitable employment and relied on the case of Giankos[34] where in that case it was held that the company bore an evidentiary onus as to other jobs in that area. The Court in Giankos stated:
[34]Giankos v SPC Ardmona Operations Ltd [2011] 34 VR 120, [115]
Finally, although the Act required the appellant to prove, on the balance of probabilities, that no suitable employment existed, in which he could earn 60 per cent or more of his pre-injury earnings, we consider that SPC bore an evidentiary onus to adduce evidence that there were other jobs in the Mooroopna area for which the appellant was suited. In Public Transport Corporation v Pitts, a Magistrate had held that the worker’s employment capacity was limited because of the disabling effect of his injury and his poor reading and writing skills. In those circumstances, Smith J said that:
The case was one where it was plainly open to the learned magistrate to conclude that the plaintiff had established a prima facie case that no suitable employment as defined in the legislation existed and so was entitled to succeed in his case unless the defendant produced evidence sufficient to raise some specific alternatives for consideration. In my view, the reality was that the defendant had to adduce evidence sufficient to raise as a real possibility that there were particular types of employment available in the community which the plaintiff was capable of performing. If it did not it would lose.[35]
In this case the evidence of the Woolworths job that is in the Nabenet report would not discharge the evidentiary onus on the defendant because on any view the plaintiff was not qualified for that job.
[35] Ibid (citations omitted, emphasis supplied)
51 Returning to the generic position, I accept the submissions of the plaintiff that due to his age and lack of qualifications and prior work experience that position would not meet the requirements of suitable employment for him. I have also had regard in reaching that opinion, the opinion of Mr Brue Lowe[36]. I have already referred to that paragraph. In essence the gist of the defendant's submission was that there was no great gulf between the duties that the plaintiff had been undertaking as an OH&S representative and the duties in the position identified as an OH&S coordinator.
[36] Defendant’s CB 80
52 Having carefully considered the plaintiff's responses to the defendant's questioning as to the duties he was undertaking and his qualifications, age, educational background and experience, I do not accept the essence of the defendant's submission. I am of the opinion that the plaintiff's transferrable skills, notwithstanding a union training course some years ago, an OH&S certificate along with his on the job training and experience over the many years, leaves him very much short from the standard to be able to viably discharge the duties set out in the generic job identified by the defendant.
53 This leaving aside the reservations of a number of medical practitioners as concerning the plaintiff due to his continuing pain and need to change his position on a regular basis, as well as the fact that he had become deconditioned as a result of being out of the workforce for two and a half years. All of this particularly for a man of his age, is such that I am satisfied that as a result of the injury the plaintiff has sustained a more than 40 per cent loss of earning capacity in suitable alternative employment and for those reasons I find that he has discharged his onus and is entitled to a certificate for loss of earning capacity.
54 As the plaintiff indicated, under the case of Sumbul[37] that would also entitle him to a certificate for pain and suffering consequences.
[37]Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
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