Miller v Visy Packaging Pty Ltd
[2014] VCC 1121
•17 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01314
| BRENDA MILLER | Plaintiff |
| v | |
| VISY PACKAGING PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 14 July 2014 | |
DATE OF JUDGMENT: | 17 July 2014 | |
CASE MAY BE CITED AS: | Miller v Visy Packaging Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1121 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the right knee – loss of earning capacity damages, pain and suffering damages conceded
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Acir v Frosster Pty Ltd [2009] VSC 454; Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave granted to bring proceedings to recover pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick | Slater & Gordon Ltd |
| For the Defendants | Ms R Kaye | Wisewould Mahony |
HIS HONOUR:
1 This application for leave to bring proceedings pursuant to s134AB(16) of the Accident Compensation Act 1985 (“the Act”) relies on a paragraph (a) injury to the right knee. Pain and suffering consequences have been conceded as serious. The single issue for determination by the Court is whether or not the plaintiff has discharged the onus of proving a permanent loss of earning capacity of 40 per cent or more.[1]
[1]Section 134AB(38)(e) of the Act; Transcript (“T”), T21
2 The plaintiff is aged forty seven years and lives with her partner and two children. She worked as a packer/machine operator for the first defendant (“Visy)” and was injured when she suffered a fall at work on 5 April 2008.
3 The plaintiff is a lady of very limited education for a native of this State and was only educated to Year 9 level. She has no tertiary or significant work related qualifications and only limited computer skills.[2]
[2]Plaintiff’s Court Book (“PCB”) 25
4 The plaintiff’s work history encompasses basically factory work involving packing and machine operating type of tasks.[3] That work history embraces a period of 1986 right through to the current time. She worked with Visy from 2005 up until August 2011 when she was dismissed. I accept that dismissal was probably due to her only ever returning on restricted duties with reduced hours. The evidence is clear Visy’s attitude changed when she could not work as well as she used to after injury.[4]
[3]PCB 25, 39
[4]PCB 28-29; T41-45, 82-85, 89, 93
5 I note the repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading speech that accompanied the repeal. Clear, proper and adequate reasons are still required, but it is not necessary in an application such as this to go into all the medical evidence in great detail. I must judge the plaintiff’s earning capacity now, more than six years after the accident. A lot of the medical material is so dated that it is of little or no use in that task.
6 The plaintiff was in a great deal of pain following the incident and she was taken to the emergency department of a public hospital. She was also seen by a company doctor, Dr Nguyen and she underwent physiotherapy and hydrotherapy at that company doctor’s clinic.[5] In addition, on the day after the fall, she attended at her usual general practitioners’ practice where a number of doctors practice. She had been a patient there since at least 2005. Her current general practitioner at that group is Dr J Davidson.
[5]PCB 27
7 The evidence indicates that the plaintiff had suffered some right knee problems in 2005 but on all the evidence I find they had long passed. They play no part in the impairment of her right knee that she suffers at the present time. I accept that whatever happened in 2005, it was not impeding her in any material way in terms of her ability to undertake long hours of factory work nor was it impacting on her life outside work, at home or recreationally.
8 The plaintiff’s treatment has been complicated by the fact that she has had unfortunate side effects in terms of abdominal symptoms from certain medications. Strong painkilling medication in particular results in side effects that hamper her ability to use certain medications.[6] She resorts to Panadol at two tablets three to four times a day.[7]
[6]PCB 30
[7]PCB 38
9 I accept that in spite of her treatment that has involved her being referred to at least two surgeons, there is really nothing she can do except put up with her pain and take some limited medication.
10 I accept she has constant pain. While it fluctuates in severity, she is never pain free. Certain activities, such as prolonged standing, cause a sharp pain through the kneecap and an aching.[8]
[8]PCB 36–37
11 In addition to seeing her general practitioner from time to time and taking Panadol, the plaintiff also attends a pool and exercises on a cross trainer in order to maintain her levels of activity.[9]
[9]PCB 38
12 The plaintiff’s work record demonstrates a woman who has a very commendable work ethic. Not only has she worked virtually all her life apart from some time off for each of her two children, now aged twenty three and sixteen, but after the plaintiff started working with Visy she was working 12 hour shifts over a seven day fortnightly period. As I understand her evidence, this meant she did 84 hours a fortnight or 42 hours a week without overtime. However, there was overtime that she often did. I accept her willingness to do overtime whenever it was available.[10] Some confusion in the witness box meant it is not clear just how much overtime was worked but I accept the base hours without overtime were 84 hours per fortnight.[11] There was no contest in this case about this lady’s motivation for what would have been very tiring constant work. She was in a production line situation where she was responsible for walking and running up and down to various machines to ensure the work process continued as well as performing other duties.
[10]T33-34, 86-87
[11]PCB 11; T33-35
13 It emerged in cross-examination that at times she also worked a second job with a netball association, attending to registrations and other duties involved in running netball competitions. It also emerged in terms of her work history that in the 12 hour shifts that she had when working for Visy, there were only short breaks. This evidence and her past history demonstrates that, on any view, she had a capacity to work very long hours in a physically demanding job that at times indicated both a stamina and a capacity to be on her feet that were quite considerable. None of this evidence has been the subject of any challenge. I accept this lady will work if work is available, whatever the hours, and will push herself up to and past her absolute limit.
14 Following her injury, she continued to work on until August 2011 but always with restrictions. Those restrictions included not squatting, kneeling, not going up steps, not running and limitations on turning. In addition, she had 10 minute rest breaks every hour. She initially got back to the 12 hours by seven shifts per fortnight but there was a change then required to the hours worked. Her hours were rejigged so it meant she did five days by 8 hours per week when the others worked 12 hour shifts.[12] I accept her evidence that she could not do overtime post injury and this had been another component of her obvious work capacity pre injury. I accept her evidence that at one stage, the employer was keen for her to do six days a week in order to pick up some overtime demands when no other worker would do the overtime. She was not able to do the extra and after one attempt at doing six days, it became clear she was no longer capable of working to that extent.[13]
[12]T43
[13]T44
15 It is clear from her evidence that, on the probabilities, the employer had a somewhat different attitude to this worker after she was injured and unable to work to the capacity she worked before. She described an incident in which one of the management personnel even followed her out to her car in the car park, telling her that she should not go to a WorkCover conciliation that was obviously part of the necessary WorkCover process.[14] I accept she was even struggling to walk at work. She told the employer and complained. She just could not do the job in the end.[15]
[14]T44-45, 82-85
[15]PCB 29; T89-93
16 The plaintiff was not really given any satisfactory reason why her duties were withdrawn in August 2011. I accept that once her capacity had been limited in the way described, the employer was no longer prepared to employ this worker whose record had obviously been faultless. She had worked on in the face of symptoms, accommodating the treatment advised of her and taking very little time, if any, off work apart from the initial period after she was injured.
17 This case is a timely reminder of the requirement of a Court to look at the realities of the labour market when considering the capacity of an injured worker for suitable alternative duties.[16]
[16]Acir v Frosster Pty Ltd [2009] VSC 454 at paragraphs [186] and [188]; Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230 at paragraph [11]
18 The realities of the labour market are reflected in the fact that a worker with this plaintiff’s motivation and reliability was put off a factory job in private industry that she had held for years. This was due to her right knee injury impeding her previously unlimited capacity. The evidence is that Visy is an organisation working three shifts and yet the likelihood is this plaintiff was probably considered by those in management not worth employing in a position she had held there successfully for years. Capacity for employment, while it has to be looked at from the medical viewpoint and not the job market, still requires a realistic assessment of that capacity.
19 After losing this job the plaintiff was not deterred. In spite of suffering constant pain, she registered with about 30 employment agencies. She got all the jobs herself.[17] She has managed to get casual work at various factories.[18] She tried a number of different jobs of this nature and found the majority of the roles involved too much walking, heavy lifting, bending or twisting and she was not able to last very long in such positions.[19] She was required to get in and out of a forklift at one of these jobs but she only lasted about half a day on forklift duties because of her knee.
[17]T90-91
[18]PCB 37
[19]PCB 37
20 In November last year, the plaintiff obtained a job carrying out factory work at a conveyor belt but it required her to stand all the time. She ceased this employment in late March 2014 and her knee was much sorer after a day’s work. Still undeterred, she then obtained work in April 2014 at Baxter’s Laboratory. It is factory work again. She stands at a conveyor belt set-up and she finds, by the end of a shift, she is left with a very stiff and sore knee that throbs at night with pain.[20]
[20]PCB 37
21 This current job entailed four days a week with a total of 30.4 hours per week with 7.6 hour shifts. I find she was unable to cope with those hours and they aggravated her pain but she struggled to keep going. There was an occasion when she just could not go to work at all due to pain. About a month ago, she sensibly asked to have her shifts reduced to three days per week so she could keep working. Since then she has been working 22.8 hours over three days. Her knee still suffers constant pain and when she is working she finds that the pain levels are of greater severity than when she is not.[21]
[21]PCB 38, T91
22 On the probabilities this highly motivated worker keeps extending herself beyond what her real capacity is and attempts to keep going as long as she can with constant symptoms. She then is reduced to trying something that puts lesser demands on her knee. This is to see whether or not she can cope with that. She has decided to undergo a driving instructor’s course and completed such a course with a view to looking at less demanding physical work. However, again her determination and optimism do not match her capacity. She has trouble getting in and out of a car for example, so she had to move to a larger car, which she did. She finds sitting for too long makes her leg go numb. She has to massage the knee and try and get some relief of pain. It is worth noting that in court, she massaged her knee on a number of occasions, sufficient even for it to be commented upon.[22]
[22]T50 and 57
23 I have had the advantage of hearing the plaintiff give evidence in this case. She was a very nervous witness who tended to answer sometimes more quickly than she should have in the sense of her comprehension of a question not being complete. I found her totally reliable in terms of her honesty and her description of her symptoms as well as her efforts and motivation to work. If anything, this lady is very stoical. She does not complain very much about a clearly demonstrated pathological knee joint. I accept her evidence.
24 She made candid admissions about what she could do at work and what she would try. She said she would still be working with Visy if she had not been terminated but that was an example of her keen desire to stay rather than of her real capacity. She could not in fact do the Visy job any longer.[23] She was candid about what she thinks her capacity would be to work as a driving instructor and was generally very forthcoming in cross-examination. However, her optimism does not equal capacity when one looks at the realities of the labour market.
[23]T82-83, 89, 93
25 The plaintiff has no significant qualifications to speak of. The six-week driving instructor’s course that she passed does not mean she could do the job other than part time. She is to be commended for trying another option but she has to sit in a car with driving students if she is going to make money. She needs to operate the brake pedal in the car for periods of time that will depend, no doubt, on the capacity of the student. The driving lessons go from 45 minutes to an hour. Given her presentation in court and her post injury work history, I do not accept that she would be able to work as a driving instructor for anything more than on a limited part time basis. She needs breaks when she sits in a car for any length of time. As well as the non-driving component I do not need evidence to establish that a driving instructor earns a living from being in a car driving with students as they log up the hours necessary to present themselves for the compulsory road test. At this stage it is a theoretical job. I accept her view that three to four lessons per day for no more than four days realistically gauges this job capacity.[24]
[24]T92
26 I also accept her evidence when she summed up her work future.
“I remain very concerned about my future. I am worried about my ability to remain in gainful employment given my injury and my limited transferrable skills as I have always done factory or manual type work. If not for the injury, I would still be happily working full time with regular overtime and doing nightshifts.”[25]
[25]PCB 39
27 That concern is corroborated to an extent by the plaintiff’s partner. His affidavit related the soreness of her knee and her tiredness after coming home from a day’s work. Nearly every day he gave evidence of complaints of knee pain and her taking analgesics. He has witnessed her rubbing her knee when she sits and her crying at night when the knee pain is bad.[26]
[26]PCB 41-42
28 There are some facts I find that are very clear. Her knee condition is worsening. She has been on a downhill slide that is really uncontested. She had about four weeks off work at Visy and she was struggling with it. She used to do 42 hours per week in a very active job plus overtime. The overtime became out of the question. She worked on with multiple restrictions her doctors put her on.[27] Other workers did 12 hour shifts but she was doing eight hour shifts.[28] In the end she was literally struggling even to walk.[29] Then she got to the stage at Visy where the knee was worsening and then: “I found that I just couldn’t do it”.[30] She obtained other jobs. She did not last long. She could not cope. Another job she held for about five months but her knee was sorer even only doing a day here and there.[31] Determinedly, she obtained her current position. Even at only 30.4 hours she battled, could not work at all at one time and it was a struggle to cope.[32] She has now gone down to a three day week of 22.8 hours. Symptoms continue to worsen. On the probabilities she has just kept pushing herself beyond her real limits as her condition goes further downhill. Every milepost over the last six years has meant a turn for the worse in terms of work capacity.
[27]PCB 28; T41
[28]T43
[29]PCB 29
[30]T89
[31]PCB 37
[32]PCB 38
29 Looking at all the evidence in this case, I accept that this plaintiff has continually tried to exercise her capacity to work even beyond the real extent of that capacity. She has only ever done manual factory, packing process type work over the last twenty eight or so years.[33] She has no other realistic capacity for work in view of her limited skills. I find, on all the evidence, that even the 30 hours a week that she has been performing over the last four weeks is not a true reflection of her capacity. Her symptoms are worsening and she is pushing herself beyond what her real capacity is for any work that she has had experience in or is suitable for. She is probably only capable of about 20 or so hours a week. In any event, on the probabilities, I find that she has lost more than 50 per cent of her capacity for suitable duties as a result of the impairment of her right knee. She can no longer work a 42 hour base week let alone overtime on top of that. On the probabilities, the 22.8 hours she is currently working is too much for her to be able to continue when one takes into account her condition is worsening.
[33]PCB 25
30 I will deal with the medical evidence in this case briefly as it is really the up to date reports in relation to capacity that are the most useful and some of the material is quite dated. The current opinions about work capacity are the most helpful.
31 The longstanding general practitioner Dr J Davidson noted daily pain from the diagnosis of significantly aggravated chondromalacia of the right knee. [34] Her last report in May 2014 is very bleak indeed. Significantly the degree of pain had increased as the condition slowly deteriorated. The doctor recorded a list of very real limits on her capacity to work for a manual worker. The plaintiff is unable to repeatedly twist or bend her knee, to do repeated lifting or stooping that bends her knee, to do repetitive pushing or pulling, repetitive use of her knee, unable to kneel, squat or crouch, unable to do prolonged sitting (more than two hours), nor prolonged walking or standing for (more than 30 minutes), unable to walk up or down inclines, repeatedly using steps or ladders and is unable to climb more than 15 steps if more than three times per day. These restrictions are permanent.[35] For a factory manual worker these are extreme restrictions. In addition even with those restrictions the plaintiff could only do part time work. She finally said, rather gloomily, that her patient will continue to suffer daily knee pain with limited knee capabilities and she was also at risk of long term deterioration.
[34]PCB 53
[35]PCB 56-57
32 I accept all this evidence. This doctor knows the plaintiff best of all the doctors having seen the patient multiple times over many years. I find that probably the plaintiff can do very limited work she is suitable for, only a few hours at a time and that even the 22.8 hours she is on at the moment is not realistic. The condition is worsening. It has to be remembered and I accept this evidence, she always has pain in her knee.[36]
[36]PCB 36, T91
33 The first treating surgeon was Mr I McLean who saw her on the referral from the company doctor in 2008. Even back then he found significant crepitus[37] and diagnosed significant patellofemoral pathology in the right knee.[38] He spoke of a prognosis for continued progression of degenerative changes.[39] When he last saw her in August 2010, four years ago, he said that she was limited for work and the “… capacity for work in the future may become more restricted with the passage of time”.[40] Time has proved him accurate on this, as well as on the condition worsening and the progressive degeneration.
[37]PCB 74
[38]PCB 77
[39]PCB 76 and 78
[40]PCB 77
34 The second treating surgeon was Mr A Trivett. He took up her specialist care in 2010. He encouraged conservative treatment over the next few years and last saw her in October 2013. He recorded improvement but she still needed to continue a program of gym, exercise and hydrotherapy even though it was nearing six years since the injury.[41] He did not say anything specific about work restrictions and given his attention was directed to treating her I do not draw any adverse inference from his failure to comment on that.
[41]PCB 63
35 A report was tendered from a physiotherapist that is quite dated. In 2010, it was recorded that in June 2010 the plaintiff was unable to complete a full week of work at Visy. It said little else except the condition had flared up and destabilised due to the insurer withdrawing payment for hydrotherapy. Uncertainty about current work capacity was expressed.[42]
[42]PCB 86
36 Dr A Sillcock, occupational physician, reported in August 2012 that this plaintiff had a capacity for suitable employment with certain restrictions but 20 hours per week was her limit.[43] She thought this condition would gradually deteriorate with an increased risk of arthritis. Total knee replacement was likely but on account of her then being 45 years old it was probably 10 to 15 years away.[44]
[43]PCB 110
[44]PCB 111
37 In 2014, she saw the plaintiff again and the plaintiff told her the knee had worsened. Importantly Dr Sillcock now reported osteoarthritis of the patellofemoral joint.[45] It had become more than a risk. The plaintiff had a permanent work capacity of 20 hours per week for suitable employment.[46] The condition would gradually deteriorate.[47] I accept this was a realistic assessment. I also noted the driving instructor suggestion appeared in the documents she had amongst the other suggested suitable jobs.[48]
[45]PCB 118
[46]PCB 119
[47]PCB 120
[48]PCB 122, DCB 64
38 Mr R Miller, orthopaedic surgeon, reported very recently for the plaintiff. In March 2014, he measured Grade 1 quadriceps wasting and effusion in the knee. Significantly he said:
”There was marked and severe patella-femoral [sic] joint crepitus which was audible and palpable”.[49]
[49]DCB 100
39 In my view these were objective signs of a worsening condition when viewed against earlier medical examinations. He recorded deterioration since 2012 when he had seen her previously and slow deterioration would continue with a poor prognosis.[50]
[50]PCB 101
40 Regarding work he noted even when working part time she has significant symptoms. This was the job before her current position that she found in late April 2014. He stated:
“I do not believe that ongoing work on any significant part time basis will be achievable in the long term”.[51]
[51]PCB 102
41 He thought the retraining as a driving instructor appropriate and consistent with her injury but did not specifically say how much she could work in that job. She would probably require a total knee joint replacement or patella-femoral joint replacement in the future. He then listed about eight dot points that on balance preclude her from any factory work when taking a realistic view of capacity and the open market.[52]
[52]PCB 103
42 I read his opinion in the context of her working only eight hours per week in March 2014. Thus his opinion, as best I can interpret it, was that by limiting her to work less than on a “significant part time basis” he was probably referring to something like the eight hour basis she was then performing albeit with significant symptoms. On the balance of probabilities I accept this is a realistic appraisal of her capacity for alternative suitable employment given her work experience, age and history. It is a capacity for very limited part time work.
43 The defendants’ medical material starts with Dr D Barton, consultant occupational physician. He reported on her downward spiral at Visy in September 2010. She said to him that a few months ago she had to drop down to 4 hours per day because symptoms flared up and had lost about five days because of symptoms.[53] Overall he recorded her saying she was a bit worse since he saw her in 2009. He also recorded crepitus.[54] He then reported in 2013 when she again told him “… her problems have got a little bit worse of late”.[55] Crepitus was noted again. He did not record the circumstances of her Visy job ending but did note two of her later jobs were only brief because there was too much twisting and movement.[56] He thought four different factory jobs identified in a NES vocational assessment report were consistent with her physical capabilities.[57] These are four of the jobs the defendants relied on in submissions as appropriate,[58] together with the additional job of driving instructor. He did say she should work modified duties with limits on not being required to squat, limit or spend prolonged periods on her feet.[59] Some of the jobs he thought suitable from the NES reports do not properly delineate the physical requirements to make Dr Barton’s opinion sound and I reject it.
[53]DCB 26-27
[54]DCB 27
[55]DCB 60
[56]DCB 59
[57]DCB 61, DCB 132
[58]T141-142
[59]DCB 61
44 Similarly he wrote a short letter in October 2013 about suggested jobs.[60] Again these are not properly described in regard to the physical requirements. Furthermore, his opinions on work capacity are flawed in regard to not having anything like a full history of the problem at Visy, the circumstances in which that job ended nor the difficulties I accept on the evidence she had with hours of work, overtime and different duties and jobs since 2008. Also he does not comment on her suitability for these alternative jobs in the sense of how many hours per week she could do. His opinions on work capacity are limited in their thoroughness. I do not accept them when all the evidence is viewed.
[60]DCB 70 and 157
45 Associate Professor J Hart, orthopaedic surgeon, reported to the defendants in January 2013 that she told him she lost her job at Visy as knee pain was increasing and she was dismissed.[61] She described to him several other agency jobs she obtained but was unable to do them.[62] He thought her symptoms had persisted and were significantly worse than when he had seen her in 2011.[63] He thought a psychological reaction had developed on top of what he clearly accepted was an organic chondromalacia patella based on MRI imaging. [64] He still described physical restrictions on the work she could perform.[65]
[61]DCB 53
[62]DCB 53
[63]DCB 55
[64]DCB 56-58
[65]DCB 58
46 He saw her in 2014 and thought her condition much the same. Her pain was consistent with pathology affecting the patellofemoral joint. He did not see “a significant deterioration” so without hearing from him or indeed any doctor, it is not clear whether he meant there was some deterioration or not.[66] This time he said:
“I did not feel there was a major psychological reaction to her physical condition. She has certainly shown evidence of motivation … .”[67]
[66]PCB 77-78
[67]DCB 79
47 Curiously he was asked whether he changed his earlier views expressed and said he had no reason to do so.[68] I do not follow this. It seems he did change his views in regard to the extent of any psychological reaction as described. When looking at the 2013 and 2014 reports in commenting on Mr Miller, he impliedly thought she could continue her work as an assembler but he took no history of the problems she was having at work.[69] Nor could he know of course that she has had to reduce her weekly hours since from 30 to about 22.
[68]DCB 80
[69]DCB 74
48 His opinions do not help in assessing her capacity now. The reports are unclear and his reasoning not easily followed. They also suffer from inadequate histories of difficulties she had at work at Visy and in her current job. Strangely the solicitor asked him to answer ten specific questions and none of them are directly related to the single issue in this case, namely residual earning capacity.[70]
[70]DCB 77-81
49 Dr M Bloom, occupational physician, examined the plaintiff in September 2013. He recorded how from eighteen years of age she had worked continually in various factories other than time off for children.[71] He seemed to understand from her expressed desire to still be working at Visy that her retrenchment was not related to her knee injury.[72] I find in this case she lost her job at Visy not due to retrenchment but to a dismissal due to her not being able to satisfy the demands of her job and thus of her employer. Dr Bloom recorded marked patellofemoral crepitus and irritability.[73] He thought it possible she had developed an adverse psychological reaction but he had no doubt the mechanism of injury had caused organic patellofemoral joint degeneration.[74]
[71]DCB 64
[72]DCB 65, 68-69
[73]DCB 66
[74]DCB 67
50 In the end he placed physical restrictions on her work capacity but said she could work full time in suitable duties. However his reasoning is fundamentally flawed. He appeared to base that opinion on the fact that she had worked full time up to a retrenchment by Visy. She was also under medical restrictions at work from the day she was injured.[75] He has misinterpreted her desire to keep working at Visy now as indicating a physical capacity to do so. I accept she does not have this capacity and Visy obviously thought the same. Dr Bloom’s evidence about her capacity for full time work at different jobs including driving instructor goes against the overall weight of the evidence in this case, both lay and medical. I reject his opinion in this regard. It was also not founded on a solid factual basis of her real problems at work since her injury.
[75]DCB 68
51 In this application various vocational assessments have been tendered by both parties. These do not assist in the task at hand as much as the medical opinions. Some are too old to assist in judging earning capacity now in June 2014. The medical reports the assessors relied on are not complete. Also the assessments I have are not based on sufficient information to be reliable.
52 For example, the 2011 NES report did not give an adequate description of the physical demands of the jobs. The time requirements for the particular physical demands are not properly set out.[76] Some of the descriptions are so vague as to be meaningless. The product tester job gave no idea of the size, type or number of “products”. A packer “… packs materials and products that is produced in factories”. [77] It was said the plaintiff “… could manage it by finding work within her restrictions”.[78] These read as theoretical jobs some website produced without any real analysis of what is involved and over what periods of time. The most up to date report for the defendants was June 2013. It is still out of date. The plaintiff has been unable to perform the duties and/or the hours of several jobs since then. To suggest the plaintiff could be a delivery driver with the requirements of getting in and out of a van or car with parcels or goods is on the evidence just unrealistic.[79] While the defendants in argument did not rely on this NES suggestion the fact that it suddenly appeared in only the third of the three NES reports really makes no sense. What aspect of her condition has changed to make delivery driver an option in 2013 is not explained. Overall these reports do not assist. They did not involve on site job inspection nor any real assessment of the precise duties involved and the physical requirements.
[76]DCB 112
[77]DCB 113
[78]DCB 133
[79]DCB 137 and 139
53 The vocational assessment of Flexi Personnel the plaintiff relied on is far more up to date, comprehensive and detailed than the NES ones. For example, the detail of the plaintiff’s complaints, tolerances and capacities involving a two hour interview is more extensive. The defect in this report is that its focus is largely on job availability rather than the plaintiff’s capacity and that is not the approach the Court must take.[80]
[80]PCB 130, 132-133, 135
54 In the end the defendants submitted $65,669 is the highpoint figure that “… most fairly reflects the worker’s earning capacity had the injury not occurred”.[81] The 60 per cent figure is $39,401 per annum and $757.72 per week is the bar.[82]
[81]Section134AB(38)(f) of the Act; T102-103; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[82]T114
55 I do not agree it is the high point or indeed the appropriate figure for this highly motivated worker who did the overtime when available.[83] This figure is her 2007-2008 gross earning. The three year period post injury revealed one of the equivalent employees the defendants provided earned $70,139 ($1,348.82 per week) in 2010-2011.[84] I reject the defendants’ submission that $60,000 ($692 per week bar) is a more representative figure I should use.[85] It ignores her actual earnings in the last year she worked pre injury and for no good reason.[86]
[83]T34, 86-87
[84]PCB 140D and I; T177-179
[85]T103, 114
[86]T121-123
56 Even taking the figure the defendants suggest, I find the plaintiff has a permanent loss of earning capacity that is 40 per cent or more. I find her current 22.8 hours per week is not her real capacity in terms of hours in any suitable job, including driving instructor. She has a worsening condition. Her capacity keeps going downwards. On balance I would accept 20 hours per week with breaks and restrictions on duties as a realistic assessment. Even with the 22.8 hours, if the plaintiff worked as a driving instructor at $30.92 per hour, she would earn $704.97 per week or $36,658.87 per annum. In any of the five alternative jobs the defendants relied on in submissions,[87] at 22.8 hours per week I find she still has suffered a loss of more than a 40 per cent.
[87]T128, 141
57 The plaintiff has discharged the onus of proving a permanent 40 per cent or more loss of earning capacity. I find on the probabilities she could not regularly work 22.8 hours per week in any suitable employment. I also find to peg her earning capacity at the 2007-2008 figure of $65,699 does not “most fairly reflect” her earning capacity without injury. It is too low.
58 For the reasons mentioned I grant leave to issue proceedings for the recovery of pecuniary loss damages.
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