Morrison v Rubicon Systems Australia Pty Ltd
[2019] VCC 1511
•20 September 2019
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-05421
| WYNTON JAMES MORRISON | Plaintiff |
| v | |
| RUBICON SYSTEMS AUSTRALIA PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 4 and 6 June 2019 | |
DATE OF JUDGMENT: | 20 September 2019 | |
CASE MAY BE CITED AS: | Morrison v Rubicon Systems Australia Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1511 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – contact dermatitis – paragraph (a) of the definition of “serious injury” – leave sought for “pain and suffering” damages and “pecuniary loss” damages – whether plaintiff satisfies the pecuniary loss test
Legislation Cited: Workplace Injury Rehabilitation & Compensation Act 2013, s325
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd [2009] VSC 454; Hunter v Transport Accident Commission [2005] VSCA 1; Petkovski v Galletti [1994] 1 VR 436; Giankos vSPC Ardmona Operations Limited (2011) 34 VR 120; Public Transport Corporation v Pitts [2007] VSC 356; Weldemichael v ID Sales & RepairsPty Ltd [2019] VSCA 68; Aluthgamage v Select Care Personnel Pty Ltd (2012) 35 VR 494; State of Victoria v Rattray [2006] VSCA 145; Richter v Driscoll [2015] VSC 457; [2016] VSCA 142; Harris v DJD Earthmoving [2016] VSCA 188; Lang v Spendless Shoes Pty Ltd & Ors [2019] VSCA 376
Judgment: Leave to the plaintiff to bring common law proceedings for both “pain and suffering” damages and “pecuniary loss” damages in respect of the skin condition suffered by him arising out of or in the course of his employment with Rubicon Systems Australia Pty Ltd.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M J Walsh with Ms M Crowe | Barbante Personal Injury Lawyers |
| For the Defendants | Mr P A Scanlon QC with Mr S D Martin | Lander and Rogers |
HIS HONOUR:
1 By way of Originating Motion, Mr Wynton James Morrison (“the plaintiff”) seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation & Compensation Act 2013 (as amended) (“the Act”) to bring common law proceedings for a dermatitis injury (“the injury”) said to have occurred during the course of his employment with Rubicon Systems Australia Pty Ltd (“the employer”).[1]
[1]The plaintiff has issued the Originating Motion against Rubicon Systems Australia Pty Ltd (the first defendant) and the Victorian WorkCover Authority (the second defendant). For present purposes, I will refer to Rubicon Systems Australia Pty Ltd as “the employer” of the plaintiff in or about December 2015.
2 The plaintiff seeks leave to bring proceedings for “pain and suffering” and “pecuniary loss damages” within the meaning of s325(1) of the Act in respect of such injury.
3 The plaintiff was the only witness to give evidence and be cross-examined. Both parties tendered a number of documents.[2]
[2]Refer to Annexure “A”
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s325(1) of the Act.[3]
[3]See s335(5)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act. That paragraph reads:
“‘serious injury’ means—
(a) serious long-term impairment or loss of a body function;
… .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the skin of the plaintiff.
7 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)The “injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the employer on or after 1 July 2014;[4]
[4]See s1 of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
(b)The “injury” and the resulting impairment under paragraph (a) must be “permanent”, that is, permanent in the sense that it is “likely to last for the foreseeable future”;[5]
(c)The “consequences” to the plaintiff of injury in relation to “pain and suffering” and “pecuniary loss” must be “serious”. That is:
“… when judged by comparison with other cases in the range of possible impairments … as the case may be … [can be] fairly described as being more than significant or marked, and as being at least very considerable;
… .”[6]
This is sometimes referred to as the “narrative” test.
[5]See Barwon Spinners Pty Ltd & Ors v Podolak (op cit) at paragraph [33]
[6]See s325(2)(b) and (c) of the Act
8 Section 335(3) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies sub-paragraph (i) of s325(2)(b) but not sub-paragraph (2) of that subsection, is entitled to bring proceedings in accordance with s335(2)(d) for the recovery of damages for pain and suffering only. A worker who satisfies the loss of earning capacity requirements of s325 of the Act is entitled, as a “matter of statutory construction”, to have leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages”.[7]
[7]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]; Acir v Frosster Pty Ltd [2009] VSC 454
9 In addition, in relation to establishing the loss of earning capacity, a court must not grant leave under s335(2)(d) on the basis that a worker has established the loss of earning capacity required by s325(2)(e) unless the worker establishes, in addition to the requirement of paragraphs (c) or (d) of s325(2) of the Act (as the case may be), that:
(a)as at the date of the hearing of an application under s335(2)(d), the worker has a loss of earning capacity of 40 per cent or more measured (subject to certain irrelevant exceptions) as set out in s325(2)(f) of the Act; and
(b)the worker will, after the date of the hearing, continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[8]
[8]See s325(2)(e) of the Act
10 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of the “injury” for the purposes of paragraph (a) of the definition of “serious injury”. These can only be taken into account for the purposes of the disturbance or disorder within the meaning of paragraph (c) of the definition of “serious injury”;[9]
(b)must make the assessment of “serious injury” at the time the application is heard (unless s348 and or s358 of the Act apply);[10]
(c)must give reasons that disclose the pathway of reasoning in dealing with the evidence, and the issues raised by the application.[11]
[9]See s325(2)(h) of the Act
[10]See s325(2)(j) of the Act
[11]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[36]
The issues
11 When Senior Counsel for the defendant was queried by the Court as to what were the issues, I was informed that there was no issue as to “compensable injury”, “causation” and, furthermore, that there were “no credit issues in this case”.[12] Furthermore, Senior Counsel informed the Court that “pain and suffering consequences” suffered by the plaintiff “will not be our focus”.
[12]See Transcript (“T”) 11, Line (“L”) 17-23
12 In particular, Senior Counsel went on to state:
MR SCANLON:
Q:“We add further to our concessions an acceptance that he could not return to his previous employment. So what is the issue? Your Honour’s identified it. Does he satisfy [134AB]? Can he discharge his onus of establishing his inability to be retrained or rehabilitated to undertake suitable employment? On that issues, pre-existing (indistinct) earnings 2013, 57.3; 14, 59.006; 15, 63.572. Say allow 63.572, 60 per cent is 38,143. That represents 733 a week. I think ultimately Mr Walsh would agree with your suggestion, Your Honour, that that doesn’t become an issue in terms of the maths. He’ll earn that.”
HIS HONOUR:
A: “No, it seems to me it’s not that sort of case, is it?---.”
MR SCANLON:
Q:“So what, then, can he earn? There’s job identified. We’ll just raise one other preliminary issue and that is we will take Your Honour to the pre-existing dermatitis from which the plaintiff was suffering and being treated, but we do not raise it as a Petkovski v Galletti point, we raise it as a comorbidity in relation to his future employment and no more.”[13]
[13]T12, L3-22
The evidence of the Plaintiff
13 The plaintiff relies on affidavits affirmed by him on 27 July 2018 (“the first affidavit”) and on 9 May 2019 (“the second affidavit”).[14]
[14]See exhibit 1 at pages 1-14 Plaintiff’s Court Book (“PCB”)
14 During his evidence-in-chief, the plaintiff gave evidence that he had read these affidavits and that they were “true and correct”.[15]
[15]T15, L3-4
15 I refer to the following salient evidence in the first affidavit:
· The plaintiff is fifty-five years of age, having been born in September 1963. At the time of affirming his first affidavit, he was living with his wife, Michele, and two children, Chyla, who was approximately sixteen years of age, and Jay, who was approximately twenty years of age, in the Shepparton area.
· During the course of his employment with the employer in December 2015, he sustained injury to his skin as a result of coming into contact with a potent chemical named “StressKote”, which caused “significant rashes on both hands, forearms, face including cheeks, nose and forehead”.[16]
[16]See paragraph 2 of the first affidavit at page 2 PCB
· At that time, he was employed as a fitter and turner and was required to make prototype parts for irrigation gates for the canals around Shepparton and in the Goulburn Valley region area. When cleaning the StressKote with Epposolve, the plaintiff was wearing latex gloves on both hands, and also wearing safety glasses. When the Epposolve came into contact with the StressKote, the latex gloves he was wearing commenced to melt and he experienced burning and tingling in both hands, face, arms, upper chest and neck. At that time, he attempted to wash those areas but that did not help.
· The reaction that the chemicals caused became worse overnight, leading to him developing severe rashes all over his face, arms, hands, chest and neck. Since that time in December 2015, he has continued to suffer from significant rashes and has been diagnosed with contact dermatitis.
· On 18 December 2015, he submitted a Claim for Compensation, which was accepted, and he has received weekly payments of compensation, together with the payment of medical and like expenses.
· He was born in Shepparton and attended local schools until he completed Year 10, after which he commenced a motor vehicle apprenticeship with Merrigum Motors, which was completed in 1982. Since that time, he has performed the following jobs:
§ In 1982, he commenced work as a mechanic with Numurkah Mazda
§ Between 1983 to 1984, he worked as a motor mechanic at the Big W service centre in Shepparton
§ Between 1984 to 1987, he worked as a motor mechanic at Halsall Honda
§ Between 1987 and 1996, he worked as a motorcycle mechanic at Harley-Davison Development in Lonsdale Street in Melbourne
§ Between 1997 to 2011, he worked in his own business, trading as the Shepparton Harley-Davison store. In 2011, he sold the business
§ He commenced employment with the employer in January 2012.
· His health prior to his injury in December 2015 had been quite good, although he had suffered dermatitis, mainly to his hands, prior to December 2015, but the condition was well treated with medication and ointments and did not cause him any loss of employment. To the best of his knowledge, he was substantially free of dermatitis over the period leading from July 2015 until December 2015.
· He has also suffered from prior medical conditions, including stress, depression and lower back pain, all of which have been “well managed and did not cause me any significant loss of time off work”.[17]
[17]See paragraph 9 of the first affidavit – exhibit 1 at page 5 PCB
· On or about 10 December 2015, he attended the Nixon Street Medical Clinic in Wyndham Street, Shepparton and was seen by Dr Perera, who prescribed Novasone ointment, and certified him to be unfit for work.
· On 18 December 2015, he returned to the Nixon Street Medical Clinic and was seen by Dr Jose Saprid, and informed him that he continued to suffer from ongoing significant problems of dermatitis on his hands and face, and Dr Saprid provided him with a Certificate of Incapacity.
· Between January and February 2016, he continued to attend Dr Saprid with ongoing problems with his hands. He attended Dr Gan for opinion and treatment in April 2016 and was recommended a treatment plan, including introducing medication for his condition and a referral to the Skin and Cancer Foundation for testing.
· In about July 2016, he attended Dr Adriene Lee, dermatologist, for treatment at the Skin and Cancer Clinic in Drummond Street, Carlton. The plaintiff notes that Dr Lee recommended a series of tests, after which she diagnosed that he was suffering from allergic contact dermatitis as a result of being exposed to hazardous materials at work.
· From July 2016, he has continued to see Dr Lee on a regular basis for treatment. Dr Lee continues to monitor his condition, prescribes medication and liaises with his general practitioner.
· At the time of affirming his first affidavit, he was taking prednisolone, 5 milligrams a day orally, with mycophenolate mofetil, 2,500 milligram per day. He was continuing to use Novasone ointment four to five times a day with a moisturiser, and was advised to use QV Gentle Wash and QV Cream for hand cleaning. He continues to attend the Wyndham House Clinic, where he consults Dr Sheldon Hall, who monitors his condition and prescribes prescription medication, ointments and creams for his hands. He notes that Dr Hall also continues to monitor his psychological condition since the injury and that, he, in about 2016 to 2017, recommended antidepressant medication and prescribed escitalopram. At that time, he continued to take the antidepressant medication daily.
· He describes that his “injury” has had a significant impact on his social, recreational and domestic capacity. He has constant problems with rashes on his hands, face and arms, and finds that his arms and hands are easily cut and injured and he constantly has scabs in that area. As a result of taking the prednisolone, his skin is very thin and very easily injured, and he has to be very careful not to cut or bruise his hands and arms as it causes an open wound.
· Since the injury, he has become socially reclusive and tends to avoid crowds and being in a public place. Furthermore, he has developed a self-consciousness regarding the appearance of his hands, arms and face. He has suffered financial difficulties because of being forced to cease work, and this has put significant stress and strain on his marriage, causing him to currently live, at the time of the first affidavit, in the bungalow in the back of the house, due to increasing marital tension.
· Over the years, he has been a keen motorbike rider and has always ridden Harley Davison motorbikes. He finds it difficult to go riding as a result of his injury, as the rubber handgrips cause a flare up of his injury and he has to be very careful with touching rubber, and has been advised against motorbike riding.
· Domestic tasks have also been affected by his “injury” and he has been advised to be careful being exposed to chemicals and, in particular, rubber and plastic. He has been advised against wearing rubber gloves which are made from latex, and to be very careful going to places which requires the touching of any materials. He notes that he easily suffers flare ups if he comes into contact with any latex or rubber products.
· In particular, his condition is easily irritated from exposure to dust, heat and cutting fluids, and he is allergic to contact with colophony, abietic acid, rubber accelerations and methylisothiazolinone.
· He attempted a return to work following “his injury”, but such was unsuccessful as his condition deteriorated and flared up significantly as a result of contact with chemicals.
· He has been stressed and psychiatrically unwell since the injury and has suffered from sleep disruption on a regular basis. He tends not to do much at home as he constantly needs to apply creams and ointments to his hands, arms and face.
· Dr Hall has certified him totally unfit for work from September 2017. He is allergic to a wide range of industrial chemicals, all of which make it extremely difficult to return to the workforce. Recovrè has had difficulty coming up with any job that would not put him at risk of accelerating his symptoms.
· At the time of his injury, he was earning approximately $65,000 gross per week.
16 I refer to the following salient evidence in his second affidavit:
·He continues to receive medical treatment as a result of his injury.
·His long-term general practitioner, Dr Sheldon Hall, who has clinically examined the plaintiff, has decided that all WorkCover patients would be seen by Dr Liow, and he has attended Dr Liow on a couple of occasions in February/March 2019 in Shepparton. In March 2019, Dr Liow moved his practice to Ivanhoe in Melbourne and he has attended Dr Liow on a couple of occasions in March/April 2019 at her Ivanhoe clinic.
·Dr Liow continues to monitor his condition, monitor his medication needs and provide Certificates of Incapacity for work. He continues to take mycophenolate, up to three tablets per day, depending on the severity of his condition. He also takes prednisolone on a daily basis for his skin condition, together with Novasone cream, which is a cortisone ointment, used up to two times a day. He also continues to use QV Gentle Wash and QV Hand Cream on a daily basis.
·He ceased seeing Dr Liow in late 2018 as she told him that there was “not much more she could do for me”.[18] She advised him to continue taking medication for his condition and use creams and ointments, and continue to moisturise his skin.
[18]See exhibit 1 at paragraph [5] of the Plaintiff’s second affidavit at PCB 11
·From late 2018, he has attended a skin specialist who consults out of the Wyndham House Clinic on one day a month [Dr Ryan De Cruz].
·He still takes medication for Depression, being Escitalopram, on a daily basis.
·He continues to suffer from:
“… significant problems with my skin including the following …
o Scarring in my arms, hands and face.
o A break of the skin causing scabbing, blisters and scarring.
o Facial dryness.
o Alteration of colour in my skin of my face and arms.
o Itching to my chest and back.
o Occasional rashes to my chest region.”[19]
[19]See exhibit 1 at paragraph [8] of the Plaintiff’s second affidavit at page 12 PCB
·In particular, the plaintiff states:
“… I continue to be easily irritated from exposure to any dust, fluids, rubber products and acid products. Further any contact with dust causes irritation of my skin. I have to be extremely careful not to come into contact with these substances. I also have to be careful not to be exposes (sic) to heat and the sun because it irritates my face and neck.”[20]
·He separated from his wife in 2018 due to ongoing stress of his medical condition, and lack of employment prospects and financial issues.
·He has been unable to return to the workforce since his “injury” and continues to receive weekly payments of compensation for total incapacity. In particular, he states:
“… I am currently 55 years of age and have no qualifications or previous experience in alternative duties. Since I was a young man I have only worked in the motor vehicle industry. I have worked as a motor mechanic for a period of well in excess of 39 years. I have no formal qualifications or certificates to enable me to obtain work outside this industry.
My injury has caused me a total loss of earning capacity as any exposure to any substances or contaminants in the environment will cause significant irritation of my condition … .”[21]
[20]See exhibit 1 at paragraph [9] of the Plaintiff’s second affidavit at page 13 PCB
[21]See exhibit 1 at paragraphs [13]-[14] of the plaintiff’s second affidavit at pages 13-14 PCB
The medical treatment of the Plaintiff
17 The plaintiff relies on a medical report from his current general practitioner, Dr Gwendolyn Liow, dated 9 May 2019.[22] In that report, Dr Liow describes being the general practitioner of the plaintiff since “late 2018”. The plaintiff initially gave a history to Dr Liow of the circumstances in which his “injury” occurred (consistent with his affidavit material).
[22]See exhibit 2 at pages 26-27 PCB
18 Dr Liow notes that on initial examination, the plaintiff presented with red and lichenified skin on his cheeks, with redness and scaling of skin on his forehead. The skin on his hands bilaterally were dry, lichenified, which extended to his elbows. Examination of the skin on his chest also revealed dryness and scaling of skin covering the anterior portion of his torso.
19 The plaintiff was diagnosed to be suffering from a mixed allergic and irritant contact dermatitis of the hands and face secondary to the workplace exposure to the chemicals identified as StressKote. He was treated with topical corticosteroids and systematic corticosteroids after exposure, and in February 2007, he was given oral methotrexate by his then general practitioner, Dr Sheldon Hall. This was ceased and then he was commenced on oral mycophenolate by a “health professional” in August 2017 and has been on that, as well as on topical corticosteroids, to the present day.
20 Dr Liow noted that the plaintiff will require:
“… the long term use of topical steroid- based preparations on affected skin with the likely continuation of oral mycophenolate which should be prescribed under the guidance of a dermatologist.”[23]
[23]See exhibit 2 at page 27 PCB
21 In particular, Dr Liow stated:
“6. He is unable to continue his usual duties and to fulfil the role he was employed to do, mainly from restrictions associated with ongoing exposure to the allergens and continued morbidity in that circumstance. He requires the frequent application of topical corticosteroid preparations which makes any job requiring the use of hands quite difficult. He was trialled as a bartender recently and was unable to avoid streak marks on the cutlery and glassware from the steroid preparations applied on his hands. Other employers (namely an interview with a driving role) have declined him from his appearance as the skin on his face is evidently unhealthy.
7. At the present time, he has no work capacity and I do not foresee his condition to improve.
8.His prognosis remains poor given the continuation of post exposure dermatitis to the present day.
9.He has a permanent impairment to the skin on his hands, face and chest resulting from allergic and irritant dermatitis to an allergen (StressKote). This condition has unfortunately not been cured, it has reached a stable state, and is resulting in permanent impairment to the normal function of his hands.”[24]
[24]See exhibit 2 at page 27 PCB
22 The plaintiff also relies on the reports of the consultant rheumatologist, Dr Desmond Gan, dated 8 April 2016 and 21 May 2019.[25]
[25]See exhibit 2 at pages 44-50 PCB
23 Dr Gan examined the plaintiff in or about April 2016 on referral from his treating doctor, Dr Jose Saprid. Dr Gan obtained a history that the plaintiff had suffered severe hand dermatitis on both hands up to his forearms since December 2015. The plaintiff also gave a further history of a rash on both hands over the years, but that usually resolved with one or two days of Novasone ointment. The current rash was severe and not responding to treatment. In particular, the plaintiff gave a history to an incident of exposure in December 2015. Dr Gan recommended that he undergo a patch test as soon as possible. Dr Gan subsequently saw the plaintiff on 22 September 2017.
24 In his last report, Dr Gan sets out his answers to various questions posed by those acting for the plaintiff. In particular, Dr Gan diagnosed the condition to be “hand dermatitis”.
25 Dr Gan did refer the plaintiff for patch testing and, in particular, to the Skin and Cancer Foundation Sub-Specialty Clinic (“ODRC”) for further assessment and confirmation of diagnosis. Dr Gan notes that the patch testing indicated allergic contact dermatitis to abietic acid, colophony (found in StressKote brittle coating), methylisothiazolinone (found in Deb hand wash), thiuram mix and mercapto mix (found in nitrile gloves), fragrance mix (may be found in hand wash). Dr Gan notes that the report also indicated possible irritant contact dermatitis of hands and face due to exposure to dust, cutting fluids, including Epposolve cleaning agent.
26 The plaintiff also relies on the reports of the consultant dermatologist, Dr Adriene Lee, dated 18 July 2016, 17 October 2016, 8 March 2017, 7 August 2017 and 22 April 2018.[26]
[26]See such reports at exhibit 2 at pages 28-43 PCB
27 Dr Gan referred the plaintiff to the consultant dermatologist, Dr Adriene Lee at the Skin and Cancer Foundation Clinic, who initially assessed the plaintiff on 11 July 2016. Dr Lee arranged for the plaintiff to undergo the patch tests already referred to. In her final report dated 22 April 2018, Dr Lee confirmed her initial diagnosis was allergic contact dermatitis and a degree of irritant contact dermatitis. Dr Lee also noted that a known history of endogenous eczema in the hands will make the skin “more susceptible to the development of irritant contact dermatitis from exposure to irritants in the workplace or at home”.[27]
[27]See exhibit 2 at page 39 PCB
28 When queried about his capacity for employment, Dr Lee stated:
“The client has the capacity for any full time employment in an occupation in which there is no exposure to irritants, either directly or airborne. Duties which would be appropriate include administration and office work. Any role which requires exposure to irritants, frequent hand washing or wet work would likely flare his dermatitis and may not be sustainable in the longer term.”[28]
[28]See exhibit 2 at page 41 PCB
29 The plaintiff also relies on medical reports from the dermatologist, Dr Alan Segal, dated 26 October 2016, 13 December 2016, 29 November 2017 and 7 November 2018.[29] Dr Segal examined the plaintiff on behalf of the insurer of the employer, with the initial consultation on 28 October 2016.
[29]See exhibit 3 at pages 55 to 66 PCB
30 When last seen on 7 November 2018, Dr Segal confirmed that the plaintiff had developed a chronic allergic dermatitis due to contact with irritant and allergenic substances in his workplace when working for the employer. Furthermore, Dr Segal noted that the plaintiff continues to have severe eczematous eruptions on his face, hands and right elbow. He has also developed further eczematous eruptions on his back, upper chest and ears.
31 At the time of his last consultation on 7 November 2018, Dr Segal obtained a further history that included:
“He intermittently sees a dermatologist in Shepparton (Dr De Cruz).
Over the last year he has been taking significant amounts of Mycophenolate and has been using low dose oral Prednisolone intermittently. He finds that despite taking the Mycophenolate flares of the condition still occur but relatively short periods of treatment with Prednisolone seem to settle this. He uses a strong topical corticosteroid on the hands, face and elsewhere. He also uses a number of moisturisers.
He finds hot periods in the summer causes him irritation on the exposed areas where eczema is present.
The eczema causes him itch most of the time and often interferes with his sleep. He is currently taking an antidepressant and tablets for his blood pressure.
He describes being very frustrated due to the constant itch and his inability to carry out some of the activities of daily living.
He finds managing the chores around the house can be quite difficult at times.
I understand he is regularly interviewed by Recovre and has actively tried to obtain work. He obviously cannot carry out work in areas where irritant or allergenic substances are present.
He has shown interest in becoming a mechanical supervisor but despite ongoing efforts a suitable employer has not been found.
… .”[30]
[30]See exhibit 3 at page 65 PCB
32 At the time of that last examination, Dr Segal observed chronic eczema around the eyes, nose and forehead, as well as some areas of the ear. Also a moderate degree of eczema was present on the upper chest and quite severe eczema was present on the upper back. Chronic eczema was also present on the dorsal aspect of the hands and wrists, and some mild eczema on the palms.
33 Dr Segal expressed the opinion that the plaintiff suffers from an ongoing chronic eczematous condition due to irritation to allergic substances in his previous work environment with the employer.
34 Dr Segal is of the opinion that the plaintiff clearly could not undertake his previous duties or hours and is unlikely to be able to do that in the future. Furthermore, he noted that the plaintiff has a limited work capacity and should avoid allergenic and irritant substances coming in contact with his skin. He should also avoid sunlight and physical trauma to his skin.
35 The plaintiff also relies on a report from the consultant physician, Dr John Weiner, who examined the plaintiff on behalf of the solicitors for the employer on or about 18 February 2019.[31]
[31]See exhibit 3 at page 67 PCB
36 In particular, Dr Weiner noted that the plaintiff, when queried as to what work he could do, stated:
“… that anything involving heat, sun, or sweating, or certainly chemicals, would immediately aggravate his dermatitis, and other work was limited because of his continuous applications of creams on his hands then covered with Glad Wrap.”[32]
[32]See exhibit 3 at page 69 PCB
37 Dr Weiner ultimately diagnosed that the plaintiff had had an episode of severe allergic contact dermatitis which has resulted in continuing ongoing sensitisation, a predisposition to further irritant contact dermatitis and as a result, a persisting post-occupational dermatitis.
38 When asked to comment on his work capacity, Dr Weiner stated:
“I discussed this at length with him, asking him what he could possibly do, if anything. The main restriction is the requirement for frequent applications of topical corticosteroids, despite, one or two short courses of prednisolone per month and continuous mycophenolate, and this entails wrapping his fingers and hands in Glad Wrap which would make it extremely difficult for any sort of employment. I feel that Mr Morrison’s condition impacts greatly on his work capacity and it would be difficult to envisage any restrictions on his work such that he may be able to continue working. The only exceptions would be work such as counselling other workers, or mentoring, if that were at all possible. That is the sort of work that he could carry out.”[33]
[33]See exhibit 3 at page 72 PCB
39 It is convenient to also refer to other medical reports further relied on by the defendant. I refer to the medical report of the dermatologist, Dr Ryan De Cruz, dated 1 November 2018, which is addressed to the former treating general practitioner of the plaintiff, Dr Sheldon Hall.[34] Dr De Cruz attends Shepparton on a regular basis and is the intermittent treater of the plaintiff.
[34]See exhibit “B” Defendant’s Court Book (“DCB”)
40 In that letter, Dr De Cruz informs Dr Hall that the plaintiff’s eczema still fluctuates from time to time and he definitely finds that the heat of the summer months is a major aggravant. Dr De Cruz considered the eczema to be less than it had been in the past and that his skin is much improved since commencing mycophenolate.
41 Other material relied on by the plaintiff are the following:
(a) the résumé of the plaintiff;[35]
(b)report of the psychologist and vocational assessment specialist, Mr Bill Radley, dated 17 May 2019;[36]
(c)summary of the plaintiff’s taxation returns.[37]
[35]See exhibit 4 at pages 78-82 PCB
[36]See exhibit 5 at pages 105-111 PCB
[37]See exhibit 6 at pages 134-135 PCB
42 I have read all these documents. In particular, I refer the report of Mr Bill Radley and in particular, to his opinions on work capacity. Mr Radley states:
“Present and Future Work Capacity: With his existing qualifications, skills and experience and injury physical limitations, my assessment is that Mr Morrison:
o has no current capacity to return to his pre-injury employment or to any similar employment. He has no current capacity for work
o has no current work capac1ty to return to any type of alternative employment.
o has no capacity to undertake any type of occupational retraining
o has no capacity for any type of employment in the future
o … .”[38]
(my emphasis).
[38]See exhibit 5 at page 107 PCB
Material relied on by the Defendant
43 The defendant tendered:
(a) the Wyndham medical records running from 12 November 2007 to 28 May 2016;[39]
[39]See exhibit “A”
(b) Recovrè vocational assessment report dated 1 May 2019;[40]
(c) Further Recovrè documents referred to as Recovrè CCS Report dated 20 May 2016; Recovrè Joint Return to Work Job-Seeking Plan dated 14 August 2018; Recovrè Job-Seeking Review 8 Weekly dated 14 August 2018 and Recovrè Retraining Request signed by Dr J Hall.[41]
[40]See exhibit “D” at pages 23-64 DCB
[41]See exhibit “E” at pages 65-93 DCB
44 I have read all these documents and, in particular, refer to the report from Recovrè. That report notes that in April 2018, the plaintiff was referred to Recovrè for job-seeking services. Recovrè obtained a history of the employment background of the plaintiff, and there was access to various medical opinions from Dr Segal, Dr Lee and Dr John Weiner.
45 Ultimately, the report authored by Ms Nikki Burden, vocational consultant, and Ms Janette Ash, occupational therapist, opined:
“Mr Morrison presents with extensive experience as a qualified motor mechanic and a strong mechanical aptitude, however his condition now precludes him from working within manufacturing, warehousing, workshop or other similar environments in which there is likely to be exposure to irritants. Roles, such as meter reading or truck driving, may offer the best chance of re-entry into the workforce as there is likely to be less or no exposure to harsh chemicals and irritants and specific qualifications are not required to obtain employment (beyond holding a HC licence for truck driving positions).
Mr Morrison may also benefit from vocational redirection to seek employment outside of his professional skill set. Computer training would open up his opportunities to more clerical based work as suggested by Dr Adriene Lee (April 2018), with roles in the office of a manufacturing or warehouse business being the most likely avenue of employment. Such positions are generally entry level in nature with no inherent qualification or training requirements beyond basic computer skills.
Alternatively, undertaking a course in drone operation may provide Mr Morrison with an opportunity for self-employment. As such, based upon Mr Morrison’s education, work history and transferable skills, the following work options have been identified as suitable for him to consider. The average weekly gross wages are also noted and are taken from joboutlook.gov.au:
1. Meter Reader $925 gross per week
2. Truck Driver $1,300 gross per week
With training:
3. Despatch Clerk $1,100 gross per week
4. Logistics Clerk $1,150 gross per week
(classified under Purchasing & Supply Logistics Clerk)
5. Commercial Drone Operator Average weekly wage unknown.”
46 It should be noted that according to the Recovrè report, it “typically requires” between $100,000 and $120,000 capital in order to set up a National Drones franchise.
The cross-examination of the Plaintiff
47 The plaintiff was initially cross-examined about the extent of any skin condition prior to the advent of the subject “injury”. I do point out that Senior Counsel for the defendant made clear that there would be cross-examination as to the “pre-existing dermatitis from which the plaintiff was suffering and being treated, but we do not raise it as a Petkovski v Galletti[42] point, we raise it as a comorbidity in relation to his future employment and no more”.[43] No objection was taken by those acting for the plaintiff.
[42] [1994] 1 VR 436
[43]T12, L17-22
48 Indeed, as already stated by Mr Scanlon, there was no suggestion of a Petkovski v Galletti[44] argument during address or any “causation” issue.
[44]ibid
49 Such an approach was consistent with most of the medical evidence which would suggest that the condition suffered by the plaintiff commencing in about December 2015 was brought about by the episode occurring at or about that time rather than an aggravation of a pre-existing condition.
50 I do set out the evidence in relation to his pre-existing condition:
Q:“And the entry on 25 November 2014 is this: ‘History: eczema with parmakeratosis’, that is the condition. ‘Novasone’, that’s the cream, ‘works but the supply is limited’. That’s the entry in the medical record. So in November 14, you were there, were you not, for the prescription and the application of creams for a problem that you had with your hands, is that right?‑‑‑
A: … (No audible response.)
Q:Yes. And it was noted that you also were using moisturisers and you were prescribed and using Novasone, N‑o‑v‑a‑s‑o‑n‑e, ointment?‑‑‑
A:Basically, yes.
Q:Yes. And then on 9 April 2015, at your next attendance - so remember this, we’re now in the year of your injury - 9 April 2015 notes that on the - having a rash over your face over the last 12 months, ‘very itchy, works with machines, normally uses Novasone’. Would that be a fair entry?‑‑‑
A:Novasone and other creams, yeah.
Q:Yes. Well, the entry is, ‘having a rash at the face over 12 months, very itchy, working with machines’, that’s how it was then in April 2015?‑‑‑
A:Um, come again? I didn’t get - understand the question.
Q:Yes, sure. That’s how it was in April 2015, nine months, eight months before this exposure?‑‑‑
A:It was a fairly on and off type thing back then.
Q:Sure. And at this examination in April 2015, in terms of your facial - you had some ‘red scaly marks’ around your face, and also on your forearm and on your hands?‑‑‑
A:Must be, could have, yeah.
Q:Yes. And then on 20 April 2015, later in that same month, you had a review of the skin on your hand and it says in the note: ‘Improving a lot.’ And the management was: ‘Add on BOZ’, B-O-Z, ‘appointment, Betnovate nightly for one month and then reduce it weekly thereafter’. Would that be how it was, as you recall it?‑‑‑
A:Not exactly sure as to how long I used it for.
Q: Okay?‑‑‑
A: But as soon as it started to come good.
Q: Yes?‑‑‑
A: I was right.
Q:Then on 13 May 2015, remembering that this is only two or three weeks later, the history notes that full review of your hand dermatitis, ‘needs Betnovate cream, hand good, explained to avoid using chemicals on the hands’. So as at that date, we’re now remembering - just to remind you, we’re at mid-May 2015, the year of this exposure, there was advice that you would need to avoid using chemicals on the hands, is that right?‑‑‑
A:That’s correct.
Q:And so your employment/exposure was already noting that you needed to keep yourself away from chemicals because of - unfortunately for you because of the reaction it was having to your hands?‑‑‑
A:Yes, I had to wear PPE.
Q:Yes.”
HIS HONOUR:
Q: “Had to wear - sorry?‑‑‑
A: PPE, personal protection equipment.”[45]
[45]T16, L12 – T18, L1
51 When queried, the plaintiff gave evidence that he thought he ceased work with the employer approximately twelve months after December 2015. During those twelve months, he gave evidence that he made some attempts at returning to work but such attempts resulted in further exposure and therefore difficulty for him.
52 The plaintiff confirmed that he has been off work from about late 2016 when he finished with the employer and this has continued in 2017, 2018 and so far into 2019.
53 When queried by the Court as to the type of work that he returned to with the employer over those twelve months leading to his cessation of employment in December 2016, the plaintiff gave the following evidence:
A:“They [the employer] explained that I’d probably be better off out of the factory away from the chemicals that they used in the factory, so they gave me a ute an sent me out into the field to go around and service the gates. Part of the problem was that, ah, the material they had in the - the utes was probably as bad, if not worse, than what was in the - ah, the factories.
Q:In the utes like in cans or just (indistinct) in the ute and this sort of thing?‑‑‑
A:Nah, they had, like, pressure packs full of this and that and, like, glues. Like, all that sort of thing was in that, in the ute. And then I was working with contractors out there, and they were using, um, Bostik products, which is, ah, like a - a glue-type product.
Q: And were you wearing gloves at this stage?‑‑‑
A: Yeah, yeah.
Q:And the contact with the substance, whatever it may be, does that have to be - as far as you’re concerned, in your knowledge and observations - does that have to be on your skin or is it just the vapours or what is it?‑‑‑
A:Could be vapours.
Q:I see?‑‑‑
A:It could be vapours. I was explained to by a Dr Lee that any airborne products - any airborne, um, product would - could possibly, you know, um, affect me.”[46]
[46]T19, L24 – T20, L15
54 When queried about trying to obtain work, the plaintiff said, in part:
“I’ve looked very hard, and I can’t find a job that will suit.”[47]
[47]T20, L29-30
55 The plaintiff also described how he has applied “off my own bat” for two jobs in the food industry, and the responses to those applications for employment was that the food industry involved issues of hygiene and was not probably appropriate for the plaintiff with his skin condition.
56 The plaintiff also confirmed under cross-examination that Recovrè have been looking for jobs for him and had arranged some interviews. The plaintiff described that the last job for which he had been interviewed was for the position of a service manager of a Mitsubishi new car dealership. Although the plaintiff accepted that many aspects of the job would be well known to him, such employment would involve being exposed to grease and oils, which would cause him significant problems.
57 When pressed about doing that type of work in general – that is, dealing with parts and spare parts – the following evidence was given:
Q:“Yes. And so you’re armed with this ability to transfer your knowledge into this particular job. Now you’ve seen - you’ve been to these auto parts places no doubt because you’ve bought things, is that right?---
A: Yeah.
Q:And all of the chemicals as it were are contained, that is, they’re in containers, aren’t they?---
A:Supposed to be.
Q:Yes, and there’s not loose oil or loose petrol or those solvents, they’re all - people buy things in containers?---
A:Yes, but I’ve seen like, ah, spills and stuff like that. There’s plenty of that around.
Q: Yes, sure. Okay.”
HIS HONOUR:
Q:“I’m sorry, what did you say then? Um, in places like that, there’s always spills, broken boxes, ah, customers bringing parts in, dumping them on the counter and saying, ‘(indistinct) that’, covered in oil, that sort of thing.
So the bring the part in and show you, taking it out of the bike or their car and bring it in?---
A: A lot of them do, yes.
… .”[48]
[48]T26, L21 – T27, L8
58 During the course of the cross-examination, it was suggested to the plaintiff:
(a)that he could get a job with something like Repco Auto Parts, or a like organisation in this town,[49] to which the plaintiff answered “Possibly, yeah.”;[50]
(b)Could work as a truck driver in a light van, doing some work, say, for Australia Post, delivering parcels and the like,[51] and also work driving a light commercial vehicle,[52] to which the plaintiff responded “As long as I didn’t have to go into areas where there was contaminants in the environment”.[53]
[49]T28, L27-28
[50]T29, L3
[51]T29, L4-9
[52]T29, L18-19
[53]T29, L27-29
59 I also refer to a significant part of the cross-examination which involves propositions being put to the plaintiff in relation to various driving duties:[54]
[54]T30, L1-33
Q:“Yes, I understand that. But to make a difference between not going into areas of contaminants that’s got nothing to do with work because that happens in your life, sadly?‑‑‑
A:It happened.
Q:Yes, so leave that aside because your life goes on. You can, I suggest to you, obtain employment as a driver doing light – well, not light. Just normal driving in a light commercial truck is what I meant to say because you have the physical capacity to do that if you’re not delivering chemicals. Is that fair to say?‑‑‑
A:It’s fair to say, but the back of the truck is considered to be too hot. They get very hot on the back of them trucks and that’s where it’s all sorted out.
Q:But is it? I mean you open the back of a truck and you reach in and you get things out and you close the truck and you put things back in?‑‑‑
A:No, you [are] required to get in the back of the truck, sort it all out, find the parcel - - -
Q: But are you?‑‑‑
A: Yeah.
Q: How do you know?‑‑‑
A: I – I’ve spoken to a friend of mine who does exactly the same job.
Q: And who’s that?‑‑‑
A: His name is Peter Clark.
Q: Yes?‑‑‑
A: Used to work for G B (indistinct.)
Q: Have you applied for this job?‑‑‑
A: Pardon?
Q: Have you applied for this job?‑‑‑
A:No, I spoke to him about a job in case it – you know, I was just interested in jobs, you know.
Q:All right, well, what about, then, as an Uber driver in town?‑‑‑
A:I don’t even know what Uber is, mate.
Q: Don’t you? Well, what about a taxi driver?‑‑‑
A: Pardon?
Q: Taxi driver?‑‑‑
A: Possible.
Q:Yes, you see, that’s not going to expose you to – I’ll put it another way. Not just is it possible. A job as a taxi driver in this town gives you the opportunity to go about your work. You’re fully licensed and not be exposed to contaminants. Is that fair to say?‑‑‑
A:If I, you know, didn’t have to do anything with the vehicle, I would probably be okay, yeah.
Q:Yes, sure. And an Uber driver is a private drive sharing arrangement or driver that does exactly the same job, but he’s not employed by the taxi company. It’s another organisation that provides service to people and passengers?‑‑‑
A:I can’t see meself (sic) being a taxi driver, mate. It’s just not in my, ah, abilities.
Q: No, I understand – because what?‑‑‑
A: It’s just not in me, ah – it’s not me. I wouldn’t be - - -
Q:No, no, I’m asking you about your capacity, not what you – I’m not saying that’s what you want to do. I’m talking about your capacity. Look at the job, you know what a taxi driver does. It’s something you could do?‑‑‑
A:(Indistinct.)
Q:Yes, and I’ll just need to go through this formally with you. Because they put it up, I need to put it up too, but a job as a meter reader. Now, this is not necessarily the traffic meters in town. I’m talking about having a – you’re provided with a modem or a piece of equipment which you keep in your home and your car and you go and read things like people’s gas and electricity so that the machine does the reading and you drive around town, visiting certain premises. That’s also just like taxi driving, something you could do?‑‑‑
A: No, I don’t believe so, I can’t - - -
Q: Why’s that?‑‑‑
A: Ah, sunlight.
Q: Sorry?‑‑‑
A: Sunlight and heat.
Q: But you’re in a car?‑‑‑
A: You can’t read the meter from the car, mate.
Q: No, what you can’t get out for two or three minutes?‑‑‑
A: I struggle in bright sunlight.
Q:I’m talking about two or three minutes, wearing a hat and a full length shirt – sleeves?‑‑‑
A:Well, if it – look, if it took ten - two minutes it’ll probably be right, but you know, like, you can’t always guarantee that.
Q: No, what I’m suggesting to you is that if you wear a sun hat- - -?‑‑‑
A: Yeah.
Q:- - - and full length sleeves on your shirt, which is the appropriate thing to do in summer anyway, and long pants, then, you could be in the sun for ten, 20 minutes, whatever time you like?‑‑‑
A:No.
Q: But you’re not exposed to the sun. You’re covered?‑‑‑
A:Yeah, it’s the heat. As soon as I start sweating I’m finished pretty much.
Q:Well, that, then, makes, does it not, the position of a driver in a truck or a car, then, really ideal, isn’t it? ‑‑‑
A:Ah, air-conditioned, sir – air-conditioned areas or conditions aren’t ideal either, they dry me out too much.
Q:Yes, but you have a balance between you’re out of the sun‑‑‑?
A:--- I know, mate, I know.
Q:Listen, you have a balance. You’re out of the sun. You’re in a car. You have either floats of air or some air-conditioning. Forget about the job. That’s what happens in your life?‑‑‑
A:It’s not good.
Q:Yes, so driving a truck or a vehicle, taxi or a normal car, is something that is within your capability?‑‑‑
A:Dunno how long it’d last – last, mate. I dunno if it’s capable or not.
Q:That’s not my question to you. My question is it’s a job that you can do?‑‑‑
A:Well, you’re telling me I can do it, but I dunno if I can.
Q:Yes, but you agree with me that you could drive a taxi?‑‑‑
A:I can drive, but I dunno how long it’s gonna take before I flare up or anything.
Q:Yes, okay. I suppose you’ll never know until you have a try?‑‑‑
A:That’d be right, yeah. It’s like anything.
Q:So until you tried, you’ll never know the permanency of that job, will we?‑‑‑
A:Fair enough.”[55]
(my emphasis).
[55]T30, L1 – T33, L9
60 Before re-examination, the plaintiff, in answer to a question from the Court, confirmed that he had been with Recovrè for two to three years, to the extent that he has been sent to any jobs he has been “unsuccessful”.
61 Under re-examination, the plaintiff was asked, in relation to his capacity to be a taxi driver, to which he responded:
A:“I’ve always worked in a (indistinct) situation. Um, it’s what I do. Um, taxi driving, um, I don’t know how I go at that.”
Q:What about the exposure to different people, and perfumes, and odours - does that‑‑‑?
A:That’s what I mean. I don’t know how I go - that’s what I mean by I don’t know how I’d go with that, you know? I don’t know what would happen. Um.
Q:Is there an issue with perfumes and odours, et cetera? ‑‑‑
A:Possibly could be. From time to time, new things crop up all the time. You know?”
HIS HONOUR:
Q:“If your hands - the other thing I just wasn’t clear about, you touched on this. If your hands get sweaty, you know, whether it’s because you’re grabbing onto a steering wheel, or you’re in a car which warms up, is that an issue for you, if your hands get sweaty?‑‑‑
A:Any type of sweating is, yes.
Q:Any time (sic) of sweating’s an issue, is it?‑‑‑
A:Yeah, face, hands. Yes.
Q:And that, from your experience, can give rise to a breakout, can it?‑‑‑
A:Can do, yes. Has in the past, yes.” [56]
[56]T36, L1 – T36, L22
62 Furthermore, when queried about his capacity to do the meter-reading job, the plaintiff noted that was ruled out by Recovrè because basically of the weather conditions involving being exposed to the sun for six plus hours a day. The plaintiff gave evidence that he could just not cope being out in the sun for that period of time.
63 Furthermore, when queried about his capacity to be a truck driver and helping with rubbish and the like, the following evidence was given:
HIS HONOUR:
Q:“… The Recovre, one of the jobs they’ve suggested here for you is driving a - a truck driver, and the truck driver, leaving aside the number of hours in the truck, but it would also - when it’s a rubbish pickup truck, it may well be that bins tip over, you’d have to assist in cleaning up the rubbish?‑‑‑
A:That’s correct. That’s correct. And also breakdowns, and things like that.
Q:Yes. And also the other thing is you’d have to, according to this, if you did the Recovre recommended job, you’d have to check oil levels in the truck and all this sort of thing. How would you go with all that?‑‑‑
A:Ah, probably shouldn’t be doing it.”[57]
[57]T36, L18-30
Conclusion
64 At the commencement of this proceeding, Senior Counsel for the defendant informed the Court – appropriately, in my view, given the evidence in this proceeding – that there was “no issue” as to compensable injury and causation. Furthermore, Senior Counsel informed the Court that there were “no credit issues in this case” and, indeed, I also accept that such is an appropriate submission after having the advantage of hearing the plaintiff give his evidence and be cross-examined.
65 In particular, I found the plaintiff to be an impressive witness, who gave his evidence in a straightforward manner, without attempting to “over yolk” the consequences of what I consider to have been a devastating injury suffered by him.
66 Such evidence was delivered in a flat tone – perhaps reflecting a mental state which has required an antidepressant medication – escitalopram, initially commenced by his then treating general practitioner, Dr Hall, and later prescribed by his general practitioner, Dr Liow, up until late 2018.
67 I do make the following findings of fact:
(a)The plaintiff has recently turned fifty-seven years of age, having been born in September 1963, and has been separated from his wife since 2018 due to ongoing stress of his medical condition and lack of employment prospects, and associated financial issues;
(b)He completed Year 10 schooling in Shepparton, after which he commenced and completed a motor vehicle apprenticeship with Merrigum Motors, which was completed in 1982. He was then employed as a motor mechanic with various companies until 1987;
(c)Between 1987 and 1996, he worked as a motorcycle mechanic at Harley-Davison Development in Lonsdale Street, Melbourne, and thereafter, from 1997 to 2011, he worked in his own business trading as the Shepparton Harley-Davison Store. He sold such business in 2011;
(d)In January 2012, he commenced employment with the employer, and for part of that employment he was employed as a fitter and turner and required to make prototype parts for irrigation gates for the canals around Shepparton and in the Goulburn Valley regional area;
(e)In December 2015, he suffered injury to his skin as a result of coming into contact with a chemical named “StressKote”, which caused significant rashes on both hands, forearms and face, including cheeks, his nose and forehead. In particular, he gave evidence, and I accept, when cleaning the StressKote with Epposolve, he was wearing latex gloves on both hands and also wearing safety glasses. When the Epposolve came into contact with the StressKote, the latex gloves he was wearing commenced to melt and he experienced burning and tingling in both hands, face, arms, upper chest and neck. At that time, he attempted to wash those areas, but that did not help him;
(f)The reaction to the chemicals became worse overnight, leaving him to develop severe rashes all over his face, arms, hands, chest and neck. Since that time in December 2015, he has continued to suffer from such rashes, and has been diagnosed with “contact dermatitis”;
(g)On 18 December 2015, he submitted a Claim for Compensation, which was accepted, and he has received weekly payments of compensation, together with a payment of medical and like expenses in relation to such condition.
68 The evidence is overwhelming that he suffered a contact dermatitis arising out of or in the course of his employment with the employer in or about December 2015. I do find that such contact dermatitis is a “compensable injury” within the meaning of the Act.
69 Although the medical evidence does suggest that he had suffered bouts of dermatitis prior to December 2015, any such conditions were treated with medication and did not cause him any loss of employment or any particular difficulty. The Court also notes Senior Counsel for the defendant expressly disclaimed any reliance on the principles enunciated in Petkovski v Galletti[58] and that to the extent that there was any cross-examination in relation to his pre-existing condition, such was said to be as to identifying a “comorbidity in relation to his future employment and no more”. In this respect, any evidence in relation to any pre-existing difficulties with eczema and/or dermatitis is set out at Transcript 16, Line 12 to Transcript 18, Line 1, and it is clear enough that the plaintiff was able to continue to work using personal protection equipment.
[58]Op cit
70 I also make the following findings of fact in respect to the nature and extent of the “injury”. In particular, I find:
(a)That after the onset of his contact dermatitis in December 2015, the plaintiff initially attended the Nixon Street Medical Clinic at the recommendation of his employer. When at that clinic, he consulted Dr Perera and Dr Jose Saprid with significant problems of dermatitis on his hands and face. He was prescribed various treatments including Novasone ointment, and certified unfit for work.
112 In relation to what was suggested by Senior Counsel for the defendant that the plaintiff would be capable of driving a taxi or an Uber vehicle, it must be borne in mind that this man has a significant skin condition, primarily located on his hands, but extending over his arms, chest and part of his back. It requires regular treatment on a daily basis which makes his hands vulnerable through thin skin, involves the requirement to have plastic bags over his hands after various creams are administered a couple of times a day, and that exposure to heat, dust, chemicals, sweating, vapours – for example perfumes – can all result in exacerbations of his condition. Taxi driving and being an Uber driver would be likely to involve handling bags, suitcases and the like, all of which has to be considered in the context of what I have just described as to be his situation.
113 Also, although the plaintiff with his background could be a light truck driver, the evidence given by him made it clear from his own knowledge of what he understands the job to be, it could not in any way be described as “suitable employment”. It involved having to manoeuvre things in the back of the truck, take different parcels to different places, being exposed to heat, dust and the like, all of which exacerbates his condition.
114 When one stands back from the circumstances of this matter, the medical evidence would suggest that chemicals, wetness, heat, sweating, vapours, and dust, can all give rise to exacerbations of his condition. Of course, to this must be added the circumstances of his day-to-day living which causes the administration of creams and the like, together with medication, which impact directly on how much he can use his hands and in what circumstances.
115 As the matter now stands, I consider the plaintiff has little realistic capacity, and none of the jobs proffered either by Recovrè or Senior Counsel for the defendant, give rise to him to be able to work on a “regular and consistent basis”.
Conclusion
116 I grant leave to the plaintiff to bring common law proceedings for both “pain and suffering” damages and “pecuniary loss” damages in respect of the skin condition suffered by him arising out of or in the course of his employment with Rubicon Systems Australia Pty Ltd.
117 I will hear the parties on issues of costs.
- - -
Annexure “A”
1 The plaintiff tendered the following documents:
Exhibit 1
– Two affidavits of the plaintiff affirmed on 27 July 2018 and 9 May 2019
(Such documents are found at pages 1-14 of the Plaintiff’s Court Book (“PCB”)).
Exhibit 2
– Medical report of Dr Gwendolyn Liow, dated 9 May 2019
– Reports of Dr Adriene Lee, dated 18 July 2016, 17 October 2016, 8 March 2017, 7 August 2017 and 22 April 2018
– Medical reports of Dr Desmond Gan, dated 8 April 2016 and 21 May 2019
– Occupational dermatology clinic patch test, dated 11 July 2016
– Report from the Goulburn Valley Health, dated 21 March 2014
(All such reports are found at pages 26-54 of the PCB)
Exhibit 3
– Medico-legal reports of the dermatologist, Dr Alan Segal, dated 26 October 2016, 13 December 2016, 29 November 2017 and 7 November 2018
– Medico-legal report of the physician, Dr Weiner, dated 18 February 2019
(All such reports are found at pages 55 to 73 of the PCB)
Exhibit 4
– Résumé of the plaintiff
(Such résumé found at pages 78-82 of the PCB)
Exhibit 5
– Report of the psychologist and vocational assessment specialist, Mr Bill Radley
(Such report is found at pages 105-111 of the PCB)
Exhibit 6
– Summary of plaintiff’s tax returns
(Such tax returns found at pages 134-135 of the PCB)
The defendant tendered the following material:
Exhibit “A”
– Wyndham medical records running from 12 November 2017 to 28 May 2016
Exhibit “B”
– Medical report of the dermatologist, Dr Ryan De Cruz, dated 1 November 2016
Exhibit “C”
Report of the consultant dermatologist, Mr A Lee, dated 26 February 2018
Exhibit “D”
– Recovrè Vocational Assessment Report, dated 1 May 2019
(Such report found at pages 23-64 of the DCB
Exhibit “E”
– Further Recovrè documents referred to as “Recovrè CCS Report”, dated 26 May 2018; Recovrè Joint Return-to-Work Job-Seeking Plan, dated 14 August 2018; Recovrè Job-Seeking Review 8 Weekly, dated 14 August 2018 and Recovrè Retraining Request signed by Dr J Hall
(Such material found at pages 65-93 DCB).
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