Meredith v Victorian WorkCover Authority
[2019] VCC 604
•10 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Restricted Suitable for publication |
| SERIOUS INJURY LIST |
Case No. CI-18-04172
| DANIEL MEREDITH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February 2019 and 1 March 2019 | |
DATE OF JUDGMENT: | 10 May 2019 | |
CASE MAY BE CITED AS: | Meredith v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 604 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the low back – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Giankos v SPC Ardmona Operations Limited (2011) 34 VR 120; Public Transport Corporation v Pitts [2007] VSC 356
Judgment:Leave granted to the plaintiff to bring proceedings for pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Ms J Frederico | Maurice Blackburn |
| For the Defendant | Mr B R McKenzie | IDP Lawyers |
HER HONOUR:
1 In March 2013, the plaintiff commenced working with Regency Plaster Proprietary Limited (“the defendant”) as a truck driver and labourer. He was required to engage in repetitive lifting, bending and twisting movements and carrying heavy loads of recyclable plaster off-cuts.
2 On 24 March 2015, the plaintiff was injured at work. He was working on a building site returning to his truck, carrying recycled plaster off-cuts, when his foot became caught in a pink string line, and he fell to the ground, landing on his behind. The plaintiff suffered a physical injury to his low back.
3 As a result, the plaintiff suffered pain, attended his general practitioner, and underwent an MRI scan which showed stenosis and multi-level nerve root impingement, particularly at the left S1 level. He was referred to an orthopaedic surgeon, Mr David de la Harpe, who performed back surgery in the form of an L5-S1 microdiscectomy. The plaintiff underwent physiotherapy and chiropractic treatment.
4 Between September and November 2015, the plaintiff returned to work on light duties with the assistance of a jockey.
5 The plaintiff’s back condition did not improve. On 7 December 2015, he underwent a further MRI scan, which disclosed an L5-S1 disc protrusion, touching the left S1 nerve root.
6 Mr de la Harpe performed further surgery in February 2016 which was a revision, being a left L5-S1 microdiscectomy.
7 The plaintiff underwent further physiotherapy and hydrotherapy, and attended a gym.
8 The plaintiff returned to work, but was unable to cope, and his employment was terminated in May 2016. He has not returned to work since.
The application
9 This is a serious injury application brought by the plaintiff for injury suffered by the plaintiff in the course of his employment with the defendant on 24 March 2015. Leave is sought for damages in relation to pain and suffering and loss of earning capacity.
10 In order for the plaintiff to be entitled to claim damages, his injury must satisfy the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“the Act”). There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of body function.”
11 The body function relied upon is the low back.
12 The plaintiff relied upon three affidavits: two affirmed by the plaintiff on 30 April 2018 and 25 February 2019 and one affirmed by his wife, Wendy Meredith, on 25 February 2019. I have not summarised the plaintiff’s or his wife’s affidavits, nor the plaintiff’s evidence; however, I will refer to their relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered. I have read all the tendered material.
13 I was informed that the defendant conceded that the plaintiff has suffered a permanent serious impairment or loss of body function for the purposes of a certificate for pain and suffering damages. Accordingly, I am only required to consider loss of earning capacity.
The issue
14 The issue is whether the plaintiff satisfied the criteria for economic loss. Counsel for the defendant submitted that the plaintiff has retained a capacity for suitable work, and relied upon the jobs identified in the Vocational Assessment Report of Recovre dated 4 December 2018 (“the Recovre report”), and the IPAR Rehabilitation Capacity Support Services Report dated 27 September 2016 (“the IPAR report”). The jobs identified as suitable were:
· pathology/medical courier or light courier driver
· traffic controller (with training)
· security officer (with training)
· automotive sales clerk/administrator
· gaming worker
· ticket seller
· spare parts interpreter
· sales assistant;
· speed camera operator.
15 The defendant’s medical evidence is that the jobs are appropriate.
16 Counsel for the plaintiff submitted that the plaintiff has no capacity for suitable employment and that his “with injury capacity” is in fact nil, whereby he clearly suffers the 40 per cent pecuniary loss.
Credit of the Plaintiff
17 The plaintiff completed Year 10 at school. He had very limited education and had difficulty expressing himself. He was not articulate and his use of language was basic. In Court he presented as unsophisticated. His work history was mainly as a truck driver/labourer.
18 The defendant made no attack on the plaintiff’s credit. I accept him as a straightforward man who attempted to answer all questions as best he could. He made concessions. I did not detect any exaggeration nor affectation.
19 I accept the plaintiff as a witness of truth.
20 The plaintiff conveyed to the Court his attempts to obtain employment, particularly when he was being assisted by IPAR, and more recently with Axis Employment Services. He impressed me as a man who wished to return to work.
The medical evidence
21 The current medical evidence as to the plaintiff’s capacity was expressed by Dr Robyn Horsley, occupational physician; Dr Ales Aliashkevich, neurosurgeon and spinal surgeon; Dr Michael Baynes, specialist in occupational medicine, and Dr Graeme Doig, general orthopaedics and trauma specialist.
22 Counsel for the defendant submitted that in accordance with Giankos v SPC Ardmona Operations Limited,[1] I should place greater weight on the opinions of the occupational physicians, Dr Horsley and Dr Baynes; however, in this case, the other medical witnesses, namely Dr Aliashkevich and Dr Doig, did not express an opinion as to the plaintiff’s capacity for employment, which was outside their area of expertise. Accordingly, there is no reason to place greater weight on the opinions of the occupational physicians, Dr Horsley and Dr Baynes, with regard to the plaintiff’s capacity for employment.
[1](2011) 34 VR 120
23 All of the current medical witnesses accepted that the plaintiff could not return to pre-injury employment as a truck driver/labourer. All said the plaintiff could return to employment with restrictions. The issue was whether the occupations identified by the defendant in the Recovre and IPAR reports were suitable.
24 A number of the medical witnesses imposed restrictions.
25 In December 2018, Dr Horsley imposed the following work restrictions in respect to the plaintiff’s lumbar spine:
(a) avoidance of repetitive over reaching;
(b) avoidance of repetitive pushing and pulling;
(c) avoidance of working in awkward and confined spaces;
(d) avoidance of truncal rotation;
(e) avoidance of static forward flexion involving the lumbar spine;
(f) good manual handling techniques, even when lifting light items;
(g) avoidance of lifting items greater than 12 kilograms except on an occasional basis; and
(h) avoidance of lifting items up to 8 to 10 kilograms on a repetitive basis.
26 Dr Horsley noted the plaintiff’s tolerances as follows:
(a) a sitting tolerance in a standard chair is twenty to thirty minutes;
(b) a driving tolerance of ninety minutes;
(c) a static standing tolerance of thirty minutes;
(d) a dynamic standing tolerance for most of the day;
(e) no limitations on walking.
27 Dr Horsley said the plaintiff had a capacity for work. His return to work will need to be in a graduated fashion, initially fifteen to twenty hours per week, gradually increasing, depending upon the critical physical demands of the job, within the restrictions as outlined above.
28 In February 2019, Dr Aliashkevich had read the reports of Dr Horsley, Dr Baynes, Dr Doig and Mr de la Harpe, who indicated the plaintiff had some capacity for modified duties in different roles, including pathology courier, traffic controller with training, and security officer with training. Dr Aliashkevich said, theoretically, he would agree that the plaintiff has some capacity for modified duties, starting with part time, probably around twelve to sixteen hours per week after extensive retraining with the restrictions he imposed. He was unsure whether suitable employment options would be available for the plaintiff in a current competitive job market, which he accepted was outside his area of expertise. He said the plaintiff was restricted in the following work activities:
(a) lifting and carrying weights over 5 to 10 kilograms above the waist height;
(b) regular or vigorous pushing/pulling;
(c) using heavy tools;
(d) heavy dragging and carrying;
(e) extensive turning and twisting;
(f) repetitive squatting;
(g) driving over forty-five minutes;
(h) stooping, bending, kneeling and crouching;
(i) climbing steps or ladders;
(j) walking on uneven ground;
(k) prolonged sitting, standing, or walking over forty-five minutes;
(l) tolerating static postures for longer than thirty minutes;
(m) exposure to vibrational jarring forces; and
(n) repetitive or sustained bending to reach below the knees.
29 In July 2018, Dr Baynes said the plaintiff has a capacity for suitable employment with restrictions of no lifting greater than 10 kilograms and no lifting from below knee height or above shoulder height. The plaintiff should not work with constrained postures and should be able to rotate postures. The plaintiff is fit for full-time hours.
30 In July 2018, Dr Doig said the plaintiff’s prognosis will be guarded and he will have some ongoing restrictions with respect to his spine. He imposed a 15-kilogram lifting, pushing and pulling restriction, with limited bending and twisting through the low back. He said the plaintiff will require breaks from prolonged sitting, standing and driving.
31 In Court, the plaintiff’s evidence was that in the last few months he suffered numbness in his feet. He cannot feel the surface on which he walks. In his most recent affidavit of February 2019, he said that his left foot is particularly affected, so much so that if he put a lit cigarette to his foot he would not feel it. He said he stood on a drawing pin and did not notice. The plaintiff was not cross-examined on this aspect of his evidence. The plaintiff said that Axis was aware of the issue. He was told that he could not drive for more than forty minutes to an hour.[2]
[2]Transcript (“T”) 45, Lines (“L”) 17-23
32 The plaintiff reported the numbness in his feet to a number of medical witnesses, including Dr Aliashkevich. Dr Aliashkevich noted that on examination, the plaintiff’s right foot had reduced sensation.[3]
Suitable employment
[3]Plaintiff’s Court Book (“PCB”) 109
33 The defendant accepts that the plaintiff cannot return to pre-injury employment but submitted that he has a retained capacity for suitable employment.
34 In assessing the plaintiff’s capacity for work to which he is suited, regard must be given to the plaintiff’s:[4]
[4]Giankos v SPC Ardmona Operations Limited (supra) at paragraph [101]
· age
· place of residence
· education
· skills
· experience.
35 Further, in determining whether there is a capacity for suitable employment, the defendant bears an onus to establish that there are other jobs in the plaintiff’s area of residence, Ballan/Ballarat, to which he is suited.[5]
The IPAR Report
[5]Giankos v SPC Ardmona Operations Limited (supra) at paragraph [115]
36 The IPAR Report identified roles which could be suitable for the plaintiff; however, the report did not identify any available jobs and did not identify the physical demands of the roles.
37 The roles identified by the report as suitable employment included:
· ticket seller
· spare parts interpreter
· courier driver (light)
· sales assistant (general)
· speed camera operator.
38 The defendant’s medical witnesses, Dr Baynes and Dr Doig, commented on the roles listed in the IPAR Report. Dr Horsley considered the roles identified in the IPAR Report in her first report.
39 The roles identified in the IPAR Report were put to the plaintiff. The plaintiff’s evidence was that a number of the roles were outside his restrictions. Of those (he “cold called” various employers within the Ballarat area including V/Line and Dorevitch Pathology), some of which he thought were within his restrictions, the plaintiff said that he received no responses or was told there were no available vacancies.
40 Given the IPAR report dated 2016 did not outline the available jobs in the market or the inherent physical demands of the roles, and the plaintiff’s evidence that his restrictions have increased, the report is of limited value.
The Recovre report
41 The plaintiff was cross-examined in relation to the roles outlined in the current Recovre report dated 2018. It was the defendant’s submission that the roles were suitable employment for the plaintiff. The Recovre report listed roles which currently exist within the open market and were outlined with their inherent physical demands. The job roles included:
(a) medical courier
(b) traffic controller (with training)
(c) security officer (with training)
(d) automotive sales clerk/administrator
(e) gaming worker.
42 The only medical witnesses to consider the jobs listed in the Recovre report were Dr Horsley and Dr Aliashkevich, both of whom imposed driving restrictions on the plaintiff.
43 It was accepted between the parties that the plaintiff lives in Ballan, a country town approximately 78 kilometres from Melbourne. The plaintiff estimated it was approximately one hour’s drive to Melbourne. He commuted to Court on the V/Line train which ran from Ballarat to Melbourne. Ballan is approximately 39 kilometres east of Ballarat.
44 The plaintiff’s evidence was that he thought he could drive for a period of forty minutes to one hour at a time. He said he finds it difficult to drive more than thirty to forty minutes without a break and he did not believe he could drive more than thirty to forty minutes to get to work. He said, when he travelled from Ballan to Melbourne to attend a medical appointment with Dr Horsley, he had to stop, otherwise the drive would wear him out. In relation to this, the plaintiff said:
“I start getting fidgety and the top half starts getting real tired, so I need to stretch it out.”[6]
[6]T51, L20-21
45 In re-examination, the plaintiff was asked what the consequences of driving for a period of forty minutes to an hour are. He said:
“Yeah, just tiredness, need to sit down, lay down, actually not really sit.”[7]
[7]T51, L25-27
46 Further, the plaintiff was not sure whether, if he had to commute from Ballan to Melbourne on a regular basis, he would realistically be able to work after the commute. I note that Dr Doig was of the opinion that the plaintiff would require breaks from prolonged driving.
47 I will now consider each of the jobs outlined in the Recovre report. I note that all of the jobs outlined in the Recovre report are full-time roles.
Medical courier
48 The role of medical courier is with a business which offers medical imaging services, with its head office located in Brandon Park, in the south-eastern suburbs of Melbourne. The role is a mobile full-time role, with typical hours of work being from 5.00am to 1.00pm.
49 The business employs seven couriers, and each courier covers regions such as the city and surround, north and north-west, eastern and the peninsula. The report outlined that additional couriers perform crossover duties throughout Melbourne. The report does not identify what area is “north and north-west”. There is no indication in the report that Ballan would be in proximity to the north and north-west area covered by the medical couriers. The author of the report described Ballan as a “residential suburb”.
50 Counsel for the defendant conceded that the description of the role identifies that in urban areas, driving periods do not exceed twenty minutes.
51 In respect to the medical courier role, Dr Horsley said the work is light work and the physical demands of the role are likely to be appropriate, provided the role does not require prolonged periods of driving. She limited the plaintiff to driving up to ninety minutes. Dr Aliashkevich said the plaintiff is restricted to driving up to forty-five minutes. Dr Doig said that the plaintiff would require breaks from prolonged sitting and driving.
52 I note the plaintiff’s evidence that when driving from Ballan to Melbourne, he had to stop for a break, otherwise the drive wears him out. In cross-examination, the plaintiff said if he had to drive an hour to work, he did not think that realistically he would be able to work.
53 The role of medical courier primarily involves driving. When regard is had to the plaintiff’s physical restrictions, the medical evidence, the plaintiff’s residence and the driving limitations imposed, I am not satisfied that a medical courier role as described in the Recovre report is suitable employment for the plaintiff. I note that there is no evidence as to the area covered by the description north/north-west and its proximity to Ballan.
54 I also take into account that the hours of work are typically 5.00am to 1.00pm. For the plaintiff to travel in excess of one hour to commence work at 5.00am and work in a role where he is primarily driving all day with his physical restrictions, is unrealistic. Further, I rely upon the opinion of Dr Horsley, who said the plaintiff could commence work, working fifteen to twenty hours, gradually increasing to full-time work, and of Dr Aliashkevich, who said that the plaintiff should start on part-time work twelve-sixteen hours per week with the restrictions he imposed.
Traffic controller
55 In relation to the role of traffic controller, the Recovre report states that the business is based in Boronia, in the south-eastern suburbs of Melbourne; however, the duties are based in various locations in and around Melbourne and regional Victoria, therefore travel time will vary and cannot be estimated for the purpose of the Report. The hours of work can vary, as they are largely dependent upon jobs, and there may be weekends and night work required at times. The Recovre report states that traffic controllers complete their duties in high risk environments such as roads, freeways and the like, and strict occupational health and safety procedures apply.
56 In respect of the position of traffic controller, the plaintiff said if the work requirements were reasonable, he thought he could work in the role; however, he could not see himself being able to do the heavy lifting elements of the work. The plaintiff said that he discussed the role with Axis, who said the position was unsuitable. The description of tasks of the role include traffic control set-up which would require the worker to lift bollards which have a maximum weight of 12 kilograms.
57 The plaintiff’s general practitioner has restricted him to lifting weights of up to 10 kilograms. The plaintiff said that the weight restriction had not been lifted. This limit is consistent with the limit imposed by Dr Baynes.
58 Dr Horsley said the work can involve lifting bollards and signage. She said the plaintiff would need to work within the restrictions she imposed. She noted his static standing tolerance is only thirty minutes. She believed that it is likely he would have difficulty with the prolonged static standing required in traffic control. She said his capacity would be for a part-time role.
59 I also note that Dr Aliashkevich imposed limitations of not lifting more than 5 to 10 kilograms. Further, Dr Doig said that the plaintiff would require breaks from prolonged standing.
60 Given the lifting and static standing restrictions and requirements for breaks, and the fact that the plaintiff would be required to travel to varying locations in Melbourne and regional Victoria to where the work is being conducted, from Ballan, I am not satisfied that the role of traffic controller is suitable employment.
Security officer
61 The role of security officer is based in the Melbourne CBD. The role is a security guard which supplies building security to a large multi-storey office building, approximately sixty minutes’ drive from Ballan. The service operates twenty-four hours a day, seven days per week, with shifts as follows: 6.30am to 3.30pm, 3.00pm to 11.0pm and 11.00pm to 7.00am.
62 The role of security officer was in a large multi-storey office building which requires the security staff to:
(a) perform customer service
(b) screen-based security monitoring
(c) undertake building patrols
(d) undertaking computer tasks to attend to any trouble-shooting, building-related issues and maintenance
(e) walk up to one kilometre to conduct building patrols.
63 The plaintiff gave evidence that he would be unable to walk up to one kilometre in one session, as this would not be within his physical capacity. The report outlined that lifts are present, but that workers must be able to check stairwells and climb stairs on an occasional basis. The plaintiff said that he could not walk up and down stairs on an occasional basis.
64 The plaintiff did not impress me as a person who had the experience and skills to attend to trouble-shooting building-related issues. The plaintiff said that he could not use a computer, as he did not feel he was smart enough. His requirement to sit and stand at regular intervals, basic computer skills, inability to walk up and down stairs or to walk distances of up to one kilometre mean that the plaintiff would not be suitable for the role. I also note that the plaintiff has difficulty in articulating himself and has no experience in working in a customer service-based role.
65 Dr Horsley said security officer work could be appropriate. She said the role included the worker being located at a security desk in the entry lobby, which would be appropriate. Further, she said that the plaintiff would need to return to work in a graduated fashion, initially working 15 to 20 hours per week, gradually increasing depending upon the critical physical demands of the job, working within the restrictions she imposed. I formed the view that Dr Horsley did not consider the inherent physical requirements of the role with regard to the plaintiff’s restrictions.
66 Given the requirement of shift work in this role, at times the plaintiff would have to drive to work. The plaintiff said if he qualified as a security officer after travelling for at least one hour, there would be no realistic prospect of him performing a day’s work.
67 Further, the plaintiff resides in Ballan and could not drive from Ballan to the Melbourne CBD without a break. He said, after travelling such a distance, he would have great difficulty completing a day’s work. I consider it to be unrealistic that the plaintiff could travel from Ballan to Melbourne for work with his physical restrictions.
68 Before being eligible for the role, the plaintiff would need to qualify and retrain as a security officer. I note that the defendant has not offered the plaintiff retraining as a security officer.
69 The plaintiff would be required to complete a seventeen-day course to obtain a Certificate II in Security Operations. Completion of the Certificate II in Security Operations would typically lead to job roles including shopping centre security, construction site/industrial security and nightclub security.
70 The plaintiff would also require an additional eight-day course to obtain a Certificate III in Security Operations which is required for a supervisory role to advance into different security industry employment roles such as armed guard, cash in transit, being employed by companies requiring persons to carry batons and handcuffs and bodyguard.
71 There was evidence that a seventeen-day full-time course in security operations was available at Broadmeadows, commencing at 8.30am and finishing at 5.00pm, and a part-time night course is also offered at Broadmeadows campus over thirty-four nights. There was no evidence of the hours of the part-time night course. The prerequisites for the courses are satisfactory numeracy and literacy skills or sufficient work experience to successfully undertake the course.
72 The plaintiff’s evidence was that he has never completed any sort of Certificate II or III courses. He has not studied since he left school after Year 10 and believed that he would struggle to complete any such courses. In the past, when he completed courses for his work, his wife assisted him with any online testing. The plaintiff gave evidence that when he sends an email, his wife checks the spelling and grammar in the email and that he is sending it to the correct email address.
73 Given the plaintiff’s physical restrictions, I accept that the plaintiff would not be able to commence a course in security in Broadmeadows. The plaintiff’s evidence was that the hours he could devote to the course would be dependent on his health. I consider that the plaintiff would have difficulty in retraining as a security officer as he would have difficulty in attending classes in Broadmeadows with the travel time required from Ballan when regard is had to his physical restrictions of driving and static sitting or standing. The plaintiff has not completed any study since leaving school in Year 10 and has limited computer skills. He would be reliant in seeking assistance from his wife in retraining.
74 I consider that even if the plaintiff was able to retrain as a security officer, I do not find the role of security officer to be suitable for the plaintiff when regard is had to the inherent requirements of the role and the physical restrictions imposed upon the plaintiff.
Sales clerk/administrator
75 In relation to a sales clerk/administrator, the role is at Keilor East and requires computer data-based tasks which occupy the bulk of the work day. The role is full time. Further, workers in the office area share responsibility for reception duties in the event of walk-in customer/contractor.
76 Though the travel time for the plaintiff would be forty minutes from his place of residence in Ballan, the plaintiff said he could not work a thirty-eight hour week. Both Dr Aliashkevich and Dr Horsley were of the opinion that the plaintiff would have to return to work in a graduated manner and with physical restrictions.
77 The position involves computer-based tasks which occupy the bulk of the work. The plaintiff said he was not able to undertake such a job as he does not have the necessary skills to work with a computer. He gave evidence that he could not use a computer as he did not feel he was smart enough and does not have the necessary computer navigation skills required. He did not think that he could work all day at a computer but, at best, half an hour at a time, and that was once he knew what was required. He said he had never worked in an office nor had he performed administrative work.
78 Dr Horsley said that from a physical perspective, the office-type work is likely to be appropriate. The plaintiff would benefit from a sit/stand workstation to allow variations in postures. Dr Horsley said the plaintiff had never worked in an office-based environment. She did not believe his computer-based skills would be adequate to work in such a role to be competitive in the marketplace. I accept Dr Horsley said that the plaintiff is unsuited to the role.
79 The plaintiff was an unsophisticated man who had only worked as a truck driver and labourer. He has never worked in an office environment or in a computer-based administrative role. He has limited computer skills and he types with one finger. He is able to send an email and complete a Google search. The plaintiff is unable to use programs such as Word, Excel or PowerPoint to a standard which would be required in such a role. He told Dr Horsley he could read the newspaper. In Court, he said he did not understand all he read and he struggles with spelling. The plaintiff gave evidence that when sending emails, he is reliant upon his partner to check the accuracy of his spelling and grammar and the email address.
80 In cross-examination, the plaintiff was asked whether he has looked at any courses in computers to retrain. The plaintiff said he had not. The defendant has not offered the plaintiff retraining in a computer-based course. In re-examination, the plaintiff said that he did not think he could undertake a role where the bulk of the tasks were computer based. He said:
“Don't know my way well enough around a computer to jump straight into that environment.”[8]
[8]T54, L5-6
81 Accordingly, I do not consider the role of sales clerk/administrator as suitable employment for the plaintiff based upon his education, prior skills and experience, his evidence and the evidence of Dr Horsley.
Gaming work
82 The plaintiff’s evidence was that he made enquiries about gaming work. He made enquiries about what the role required. He did not believe he could work in such a role as he would have difficulties with:
· the lifting involved; he could not lift the cash trays that fill up the poker machines or a tray of glasses
· performing the duties of a gaming dealer, as they are required to stand, walk around the gaming table and stretch across tables.
83 The plaintiff was asked about his organisational, counting and communication skills, which he assessed as fair to average. He said he could add up, but he is not the greatest.
84 I was informed that the plaintiff has been offered retraining in the responsible service of alcohol, which he completed; however, the gaming work was considered unsuitable by Dr Horsley. Dr Horsley said gaming work is unlikely to be suitable because of the prolonged static standing.
85 I accept that the role of gaming worker is not suitable work given the lifting, stretching and static standing involved. I accept that the plaintiff does not possess the required skills for this position.
Rehabilitation and re-training
86 Counsel for the defendant submitted that the plaintiff bears the onus of proving any inability to be retrained or rehabilitated.
87 I accept that the plaintiff was offered retraining in the responsible service of alcohol, which he has completed. I am of the view that retraining as a traffic controller and security officer would not be suitable for the plaintiff, as he would be unable to work in these roles due to his physical restrictions. In relation to re-training in his computer skills, I am of the view that a computer course would not be beneficial to the employment prospects of this plaintiff when regard is had to his limited education, skills and experience.
88 I accept that the plaintiff has complied with his obligations in respect to rehabilitation and retraining.
Conclusion
89 It was accepted between the parties that the plaintiff cannot return to pre-injury employment.
90 I am satisfied that the plaintiff is unsuited for all the positions suggested by the defendant as outlined in the Recovre report. I rely upon the medical opinions of Dr Horsley and Dr Aliashkevich, who commented on the Recovre report.
91 I accept the explanation as to the difficulties the plaintiff would face in the areas of employment set out in the Recovre report. None of the positions identified were “suitable employment” when realistic regard is had to the plaintiff’s physical restrictions, education, skills, experience and place of residence, Ballan in country Victoria. Most jobs were Melbourne based, although traffic controller had limited work in country areas.
92 I rely upon the Court of Appeal decision in Giankos v SPC Ardmona Operations Limited,[9] where the Court said:
“First, the worker’s capacity for work for which he is currently suited must be assessed by reference to the appellant’s age and place of residence, as well as his education, skills and work experience.
…
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.”
[9](supra) at paragraphs [101] and [115]
93 I am satisfied that the defendant has not discharged the onus that there are other jobs in the Ballan and surrounding area for which the plaintiff is suited.
94 Having regard to the fact that the plaintiff has worked in physical labour for most of his life, was educated to Year 10,[10] has limited knowledge of using a computer, has physical restrictions of lifting, limitations of static standing and driving, and his resides in Ballan, I am of the opinion that the plaintiff has no residual capacity for suitable employment.
[10]PCB 14
95 The plaintiff told the Court and medical witnesses that he wanted to return to work. He gave evidence that between April 2016 and October 2017, he attended IPAR on a fortnightly basis and sent resumes to companies in Ballarat without success. He was offered a job interview at Ballarat Go-Karts but after he told the potential employer about his back injury, his application was rejected. He said even if he were offered the position, he could not accept it, as he physically could not push the go-carts because of his injury. He also considered a job which involved maintenance at the Ballan Primary School but was required to climb ladders and get onto a roof, which he did not believe was appropriate, given his injury.
96 The plaintiff said he attempted to cold call V/Line but was told it was almost impossible to get a job. In more recent times, the plaintiff has been working with Axis Employment Services. He was cross-examined about looking for courier jobs in the Ballarat area. The plaintiff said he had written to a number of companies including Dorevitch Pathology, Australian Red Cross and St John of God in relation to driving jobs enclosing his résumé. The plaintiff said he did not receive a reply and had not been offered an interview. He said that he continued to look for work, as this was a requirement of the Job Start Allowance that he is currently receiving. He said if he was offered a job and it complied with his restrictions, he would attempt the work.
97 I accept that the plaintiff is motivated to work within the restrictions imposed upon him and has attempted to find suitable employment without success. I accept that the plaintiff has been working with Axis Employment Services in order to find suitable employment which is within his restrictions. I accept that his inability to return to work represents a significant loss to this plaintiff.
98 I rely upon what Smith J said in Public Transport Corporation v Pitts:[11]
“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. Thus there was an evidentiary onus on the defendant on that issue.”
[11][2007] VSC 356 at paragraph [17]
99 I accept that the plaintiff cannot return to pre-injury employment, and all medical witnesses agree upon this. I have accepted that none of the jobs identified in the Recovre and IPAR reports constitute suitable employment for the plaintiff.
100 The plaintiff is now forty-two years of age. The plaintiff’s working life has been in physical labour work. The plaintiff is a man who has derived his livelihood from the strength of his body throughout his life. He has always been a manual worker. He has no capacity to return to any employment for which he is suited. The plaintiff impressed me as a man who wanted work. Given the plaintiff’s age, I accept that this injury represents a significant loss to the plaintiff.
101 Given the plaintiff’s injury has persisted since 2015, and the medical evidence, I am satisfied that the plaintiff’s impairment is permanent and he is effectively out of the workforce for any suitable employment as a result of the impairment to his low back and the consequences flowing from that. I am satisfied that it is fair to describe the consequence of the plaintiff’s loss of earning capacity as being “more than significant or marked”, and properly described as being “at least very considerable” when judged by comparison with other cases in the range.
102 No element of the mental component is taken into account in this assessment. Indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
103 The plaintiff has actively sought employment and been unsuccessful. Accordingly, there is no need to go into any analysis of wage rates as I do not accept that he has any residual capacity, when the medical restrictions placed on him by the medical witnesses are considered in the context of the real commercial world.
104 Therefore, the plaintiff satisfies the narrative test and the statutory test for loss of earning capacity.
105 In view of the matters I have described, the plaintiff has discharged the onus with respect with his impairment of the low back regarding his loss of earning capacity.
106 Accordingly, I grant leave to the plaintiff to bring proceedings for pecuniary loss damages in respect of the low back.
107 I will hear the parties on costs.
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