Murphy v Victorian WorkCover Authority
[2023] VCC 740
•24 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-22-02276
| NATE MURPHY (aka NATHAN EVANS) | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 February 2023 | |
DATE OF JUDGMENT: | 24 May 2023 | |
CASE MAY BE CITED AS: | Murphy v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 740 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering consequences – pecuniary loss – injury to the spine – credibility
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Dordev v Cowan [2006] VSCA 254; Woolworths Ltd v Warfe [2013] VSCA 22; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Petrovic v Victorian WorkCover Authority [2018] VSCA 243
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram KC with Ms H Donmez | Verduci Lawyers |
| For the Defendant | Ms D Manova | Lander & Rogers |
Table of Contents
Introduction
What are the issues in dispute?
Background
The hearing
Mr Murphy’s evidence
Surveillance
Was Mr Murphy a credible or reliable witness?
Findings on credit
Lay evidence
Radiology
Treating doctors’ reports
Dr Lindy Kwok, Chinese medicine practitioner and acupuncturist
Dr Vera Ramasamy, general practitioner (The Clinic Footscray)
Dr Simon Benson, general practitioner (The Clinic Footscray)
Dr David Love, treating orthopaedic surgeon
Mr Anthony Hyett, consultant surgeon
Dr Ian Relf, general practitioner and medical acupuncturist
Associate Professor Mehrdad Nikfarjam, laparoscopic surgeon
Comment on treating doctors’ reports
Mr Murphy’s Medico-legal reports
Dr Umberto Boffa, consultant occupational and environmental physician
Mr Peter Wilde, orthopaedic surgeon
Defendant’s medico-legal reports
Mr Michael Dooley, orthopaedic surgeon
Dr Sam Soliman, occupational medical consultant
Dr David Merenstein, general surgeon
Vocational assessments
Evidex reports dated 21 July 2022
Recovre Report dated 16 November 2022
Economic loss
What is required by the Act?
Financial evidence
Plaintiff’s submissions on economic loss
Defendant’s submissions on economic loss
Can the Court determine Mr Murphy’s “without injury” earning capacity?
What is the amount which is 60 per cent of the plaintiff’s “without injury” earning capacity?
Has Mr Murphy proved that his “with injury” earning capacity is less than 60 per cent of his “without injury” earning capacity?
Does Mr Murphy meet the “serious injury” test for pain and suffering?
Plaintiff’s submissions
Defendant’s submissions
Findings on pain and suffering
Conclusion
HER HONOUR:
Introduction
1The plaintiff, Mr Nate Murphy (“Mr Murphy”), seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring common law proceedings for injury to the spine (“the injury”), said to have occurred throughout the course of his employment with Matthew’s Liquor Pty Ltd (“Matthew’s Liquor”) from January 2017 until April 2018 and, in particular, on 29 December 2017 and 5 January 2018.
2Mr Ingram KC and Ms Donmez of Counsel appeared on behalf of Mr Murphy and Ms Manova of Counsel appeared on behalf of the defendant at the hearing of the application on 13 and 14 February 2023.
3Mr Murphy alleges that he was required to undertake heavy, repetitive lifting and bending and that around the period of December 2017 and throughout early 2018, he experienced an onset of pain within his lower right back, right hip and groin.
4Mr Murphy 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 the injuries.
5Senior Counsel for Mr Murphy confirmed at the commencement of the proceedings that the application was limited to Mr Murphy’s spine as the relevant body function for the purposes of paragraph (a).[1]
[1] Transcript (“T”) 3, Line/s (“L”) 4-5
6It is for Mr Murphy to establish, on the balance of probabilities, that his injury is “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.”[2]
[2] See s325(2)(b) and s325(2)(c) of the Act
7In addition, in relation to establishing the loss of earning capacity, a court must not grant leave under s335(2)(d) unless Mr Murphy satisfies the statutory requirements of paragraph (c) and/or (d) of s325(2) of the Act.
8The legal principles are well known and not in dispute in this case.
What are the issues in dispute?
9The defendant submitted there were a number of key issues in dispute[3] including:
(a) Credit;
(b) Capacity – it was submitted that the plaintiff had, and continues to have, an ability to return to full-time suitable employment;[4]
(c) Whether the plaintiff could establish a 40 per cent loss of earning capacity; and
(d) Range.
[3] Defendant’s written submissions dated 14 February 2023; T6, L21-31
[4] T6, L23-27
10Credit is the primary issue in this case.
Background
11Mr Murphy is now aged forty-two. His birth name was Nathan Evans, and he used that name until he was thirty-eight when he changed his name to Nate Murphy.
12He left school at age eighteen and completed VCE. He then completed a Diploma of Business Studies and Occupational Health and Safety.
13Mr Murphy set out the following work history in his first affidavit sworn 3 February 2022.[5] He worked:
· As a Loans Assessor for AGC Credit Line after leaving school until about 2004.
· Between July 2004 and 2008, he worked with Allianz Hunter Premium Funding as a Team Leader and Client Manager and “managing top tier clients, liaising between clients and brokers”.[6]
· Between 2008 and 2012, he worked at QBE as a Risk Case Manager, managing workers’ compensation claims “managing a portfolio of high-risk claims from 0 to 130 weeks, determining liability of a claim, calculating PIAWE pre-injury average weekly earnings, participating in case conferences and face to face meetings”.[7]
· Between July 2012 until approximately December 2012, he worked with Aldi as a Return-to-Work Coordinator and Occupational Health and Safety Officer.
· Between December 2012 and approximately November 2014, Mr Murphy returned to work with QBE as a Service and Client Manager for “return-to-work claims from 0 to 78 weeks and managing a staff of 10 ensuring the implementation of claim management plans, handling complaints and ensuring targets were met”.[8]
· In November 2014, Mr Murphy moved to the Northern Territory and worked for the Territory Insurance Office in Darwin as an Operations Manager for WorkCover and motor accident compensation claims. Mr Murphy described this position as “Operations Manager for the workcover and motor accident compensation claims, managing a staff of 60 and reporting to the CEO”.[9]
· In 2015, the Territory Insurance Office was purchased by Allianz and Mr Murphy continued to work there until 2016.
· In 2016, Mr Murphy returned to Melbourne and commenced work with WorkSafe as a Project Coordinator. He worked in that position until November 2017.
· He worked in all these jobs under the name “Nathan Evans”.
[5] Plaintiff Exhibit P1, PCB 24-25
[6] Plaintiff Exhibit P1, PCB 24
[7] Plaintiff Exhibit P1, PCB 24
[8] Plaintiff Exhibit P1, PCB 25
[9]Plaintiff Exhibit P1, PCB 25
14The above demonstrates that Mr Murphy has had extensive experience in the insurance industry and worked at a reasonably senior level in that industry from 2004 until late 2017.
15Mr Murphy commenced work at Matthew’s Liquor in January 2017. From that time and until November 2017, Mr Murphy worked two jobs – one with WorkSafe under the name Nathan Evans and one with Matthew’s Liquor under the name Nate Murphy.
The hearing
16The application did not proceed in the “usual way”.
17In order to accommodate a request from Mr Murphy’s Senior Counsel, the order of final addresses was reversed, and Senior Counsel for Mr Murphy’s address was given first.
18Counsel for the defendant then addressed the Court, and Mr Murphy was granted a right of reply which was presented by experienced Junior Counsel.
19Mr Murphy tendered affidavits, medical records and medico-legal reports, and financial material from both the Plaintiff’s Court Book (“PCB”) and the Defendant’s Court Book (“DCB”) and tendered additional financial documents.
20The defendant tendered a medico-legal report, documents from the DCB, some surveillance footage and some additional documents.
21Only Mr Murphy gave viva voce evidence and was cross-examined.
22I have considered all the tendered evidence and Mr Murphy’s viva voce evidence and the oral and written submissions of Counsel, but I shall only refer to the materials to the extent necessary in these reasons.
Mr Murphy’s evidence
23Mr Murphy relies upon three affidavits, the first sworn on 3 February 2022,[10] the second sworn on 29 November 2022[11] and the third sworn on 10 February 2023[12] (three days before the hearing).
[10]Plaintiff Exhibit P1, PCB 23-28
[11] Plaintiff Exhibit P1, PCB 29-32
[12] Plaintiff Exhibit P1, PCB 246-248
24In his evidence-in-chief, Mr Murphy confirmed that he had re-read the affidavits again and the contents were true and correct.[13]
[13] T11, L9-13
25The following salient points emerge from Mr Murphy’s affidavits:
· He continued to work after the onset of pain in December 2017, as Matthew’s Liquor was understaffed. He then took a period of pre-planned leave and upon his return in early 2018, experienced further pain but continued working on modified duties.
· He ceased work with Matthew’s Liquor in April 2018, after his pain became too severe.
· He was the carer for his father and daughter, who both suffer from a variety of health conditions. He was in receipt of a carer’s allowance from Centrelink and that was his sole source of income.
· He is the sole director of a company called Hampshire Cellars Pty Ltd (“Hampshire Cellars”). Hampshire Cellars owns rigid trucks and is involved in delivering freight to locations around metropolitan Melbourne.
· He began driving trucks for Hampshire Cellars in about August 2018.
· By the time he swore his final affidavit, he was working 30 hours per week – usually 6 hours a day, five days a week, driving trucks for Hampshire Cellars but his hours varied depending on “job demands”.[14]
· He did not draw a wage from Hampshire Cellars as “it has not been returning a profit”.[15]
· He was unable to engage in employment involving heavy lifting and bending, and sedentary-type roles involving long periods of sitting were beyond his capacity, due to his injury.
· He continued to experience constant but varying levels of pain, depending on the activities he performed. He reported the pain emanated from his right hip, extended into his lower back and radiated to just below his buttocks.
· The injury made it difficult to fall and stay asleep and his sleep was often limited to 4 to 5 hours each night.[16]
· His capacity to perform domestic duties was affected, in that he paid someone to mow his lawns and purchased most of his groceries online; he placed his laundry washer and dryer on a bench which assists when loading/unloading washing, and purchased an electric mop/vacuum to assist with mopping and vacuuming.[17]
· The injury had impacted upon familial relationships, which caused him to be less patient with his father, and he could not partake in physical activities such as going to the park and playing kick-a-ball with his children as he would like.[18]
· He spent most of his time at home, whereas he previously enjoyed going on regular holidays, and catching up with friends to go out for dinner, to football matches, and the movies.[19]
· He might take approximately twenty Voltaren tablets and ten Panadol a week and is otherwise not undergoing any active physical therapies or treatment.[20]
[14] Plaintiff Exhibit P1, PCB 247
[15] Plaintiff Exhibit P1, PCB 247
[16] Plaintiff Exhibit P1, PCB 30
[17] Plaintiff Exhibit P1, PCB 30
[18] Plaintiff Exhibit P1, PCB 31
[19] Plaintiff Exhibit P1, PCB 31
[20] Plaintiff Exhibit P1, PCB 247
26During his evidence-in-chief, Senior Counsel for Mr Murphy applied for and was granted leave by the Court to lead viva voce evidence beyond that contained in his three affidavits.[21]
[21] T10
27The additional evidence was that Mr Murphy’s father’s residence in Sunshine had been used as security for a loan entered into by Hampshire Cellars in 2018, for the purchase of a truck.[22]
[22] T11, L14-23
28In the course of the hearing, Mr Murphy was granted a certificate under s128 of the Evidence Act in relation to his non-disclosure of income to the Australian Taxation Office (“ATO”).
Surveillance
29The defendant tendered 14 minutes of surveillance film of Mr Murphy taken on 26 August 2022.[23]
[23]Defendant Exhibit D1
30The film showed Mr Murphy dropping off his daughter at school and later attending a caryard where he and his wife took an Isuzu Ram tray utility vehicle for a test drive.
31I accept the submission made by Senior Counsel for Mr Murphy that the surveillance was not of any great significance insofar as it demonstrated relatively benign activities. It showed Mr Murphy engaging in mundane, physically undemanding tasks such as walking with a primary school-aged child along a road and attending a caryard.
32However, the significance of the film related to credit and emerged in the cross-examination about the funding and purchase of the Isuzu Ram tray utility vehicle.
Was Mr Murphy a credible or reliable witness?
33As has been said many times, in “serious injury” applications, the credit of the plaintiff will often be critical to the resolution of the application.[24]
[24] See for example Johns v Oaktech Pty Ltd [2020] VSCA 10
34Mr Murphy’s credit is central to the determination of this application.
35The defendant made a sustained attack on his credibility and reliability.
36The defendant referred to the following:
· His non-declaration of income to the ATO;
· The business address of Hampshire Cellars. An Australian Securities and Investments Commission extract listed Hampshire Cellar’s principal place of business as the address of another bottle shop which was also operated by the employer. Mr Murphy initially said he was not in control of Hampshire Cellars at the time and could not explain why that address had been listed. However, he later accepted he was in fact a joint director of Hampshire Cellars for a period whilst that address was listed, and was still unable to answer questions on this point.
· The circumstances of ceasing work in the insurance industry in 2017, where he was regularly paid in excess of $100,000 per annum and the commencement of work in a bottle shop where he earned “maybe” $45,000 to $50,000 per annum. No evidence was produced as to his actual earnings with the employer.
· Mr Murphy prepared and produced profit and loss statements for Hampshire Cellars. He gave evidence that he entered the relevant figures for the profit and loss into a computer program which then generated a report which he then provided to an accountant in preparation for lodging the necessary financial/taxation records. He said that the statements showed significant losses each year for the company, and this explained why he was not drawing a wage. However, Mr Murphy later admitted some of the amounts he had entered as losses were either amounts which had not been paid fully or were expenses incurred by another entity. As such, Mr Murphy conceded the losses of the company were likely to be far less than were listed in the profit/loss statements which he had prepared.
37The defendant submitted that Mr Murphy was an unreliable witness whose evidence ought not be accepted, save where it was corroborated from independent sources.
38For the reasons below, I accept this submission.
39Senior Counsel for Mr Murphy did not address the Court directly on Mr Murphy’s credit, other than to submit that Mr Murphy’s credit was intact in relation to pain and suffering consequences.
40Junior Counsel for Mr Murphy did not elaborate on credit in her reply submissions.
Findings on credit
41Having seen and heard Mr Murphy in the witness box, I formed an unfavourable impression of him.
42I have significant reservations about his credit and reliability.
43I do not accept that he gave genuine answers in cross-examination. I have formed the view that he was evasive and disingenuous and was prepared to give answers which were at best half-truths.
44There are a number of specific areas which caused me concern about his evidence. The following are some examples set out in no particular order of importance:
(a) Mr Murphy gave no satisfactory explanation as to why he had not declared any income from Matthew’s Liquor to the ATO or why he had not declared his earnings from the Victorian WorkCover Authority to the ATO.[25] He agreed that he withheld these earnings from the ATO deliberately.[26] I find such a deliberate act is significant and reflects poorly on Mr Murphy. As mentioned, he was granted a s128 certificate in relation to that evidence;
[25] Plaintiff Exhibit P16: 2017-2018 taxation return declared Centrelink income of $14,611, DCB 67-68
[26]T18 L30-31
(b) Further, he did not provide a plausible explanation as to why he left a well-paid job at WorkCover to work in a bottle shop earning initially $14 per hour. His explanation that he was helping a friend by working at Matthew’s Liquor simply was not plausible;
(c) His evidence as to his pre-accident earnings was most confusing, particularly given his nondisclosure of income to the ATO;
(d) Mr Murphy was evasive as to the number of vehicles owned by Hampshire Cellars. His initial evidence was that Hampshire Cellars had two trucks, one of which had been purchased by his father and the second by the company in 2021. He did not volunteer that the company had purchased a third vehicle in or about August 2022 until he was confronted with video surveillance footage of him test driving an Isuzu Ram utility in August 2022. He said the vehicle was worth between $130,000 to $140,000.[27] He initially said that he had used money from a WorkCover settlement and a loan from his wife’s family to fund the purchase of the vehicle, but then denied purchasing the vehicle (referred to as a “truck” in cross-examination) in the following exchange:
[27]T106 L8
Q: “Did you purchase the truck?---
A: Did I purchase the truck? No.
Q: Did you purchase it?---
A: I did not personally purchase.
Q: Did your wife purchase it?---
A: No.
Q: [From the Court] Did the company purchase it?---
A: Yes.”[28]
I find that Mr Murphy was deliberately attempting to mislead the Court when he gave this evidence;
[28] T106, L14-17
(e) He had not worked as a truck driver before injury. His evidence was that one of the trucks owned by Hampshire Cellars was mortgaged against his father’s house.[29] On this basis, it was put that he was somehow forced or constrained to continue working as a truck driver for Hampshire Cellars. A recent Certificate of Title showed no such encumbrance on the property.[30] The assertion that the property was used as “some form of security” against the truck was not borne out by any independent evidence;[31]
(f) In or around 2018 when aged thirty-eight, he changed his name from Nathan Evans to Nate Murphy.[32] The explanation for the change of name was an assertion that “I wanted to change my name back to my mother’s maiden name”.[33] There was no evidence of any disharmony or estrangement between Mr Murphy and his father which might explain the desire to change his name. In fact, the evidence was to the contrary, that there was, and continues to be, a close relationship between father and son. Mr Murphy lived with his father in Sunshine until relatively recently, and continues to be his carer. He is heavily involved in running Hampshire Cellars which was established by his father. The timing of the change of name appeared to occur at or around the time Mr Murphy was paying child support and at or around the time he left the employ of WorkCover and commenced working at Matthew’s Liquor and when he failed to declare his 2017-2018 income to the ATO;
(g) Mr Murphy impressed the Court as someone who was reluctant to concede any capacity for suitable employment or retraining. When pressed, he did not provide any credible explanation as to why he could not return to work in the insurance industry where he had been earning in excess of $100,000 per annum prior to working at Matthew’s Liquor.
[29] T11, L14-25; T56, L26-31; T57, L1-8
[30]Defendant Exhibit D4
[31]T11, L14-25; T174, L22-30
[32]T12, L13-15
[33]T12, L16-17
45Considering all these matters and the evidence as a whole, I have concluded that Mr Murphy was not a credible or reliable witness.
46I have therefore viewed Mr Murphy’s evidence as to the ongoing consequences of his low-back condition with caution and would only accept the asserted consequences if there was other objective evidence to support them.
47I am mindful of what was said by the Court of Appeal in Dordev v Cowan & Ors[34] in relation to the plaintiff’s credit in this type of case. As Chernov JA said in his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.[35]
[34] [2006] VSCA 254 (“Dordev”)
[35](ibid) at paragraph [14]; see also Petrovic v Victorian WorkCover Authority [2018] VSCA 243 at paragraph [74]
48Chernov JA went on to say in Dordev that the fact of pathology (such as MRI of the lumbar spine in this case) does not of itself establish consequences of any particular degree of gravity or its specific source. Doctors have to depend on the accuracy of the history given to them by the patient as to the true level of disability and impairment. His Honour therefore reasoned that medical opinion based on an account by a witness as to his or her symptoms may have little or no probative weight where the court determines that such a witness is not reliable.[36]
[36] Dordev at paragraph [19]
49Accordingly, in this case, where there are medical opinions which appear on their face to be supportive of Mr Murphy’s claim, such opinions must be looked at in light of my views as to credit and reliability and in the context of not overstating the relevance of pathology.
Lay evidence
50I consider that significant inroads were made into Mr Murphy’s evidence and, consequently, the usefulness of apparently corroborative evidence is largely negated.
51Having regard to my findings regarding the credibility and reliability of Mr Murphy, I place little weight on the evidence of Mr Murphy’s wife, Ms Nguyen, contained in her affidavit sworn 10 February 2023,[37] despite the fact that she was not cross-examined.
[37] Plaintiff Exhibit 17
52Ms Nguyen’s evidence was based on her observations of Mr Murphy and what he had told her about pain and restrictions. This evidence is only as reliable as Mr Murphy’s presentation and statements to her.
53In this case, the failure to cross-examine Ms Nguyen is not significant as I have formed the view that Mr Murphy’s credibility and reliability was so weakened in cross-examination that there was no real need to cross-examine her.[38]
[38]Woolworths Ltd v Warfe [2013] VSCA 22; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8 at paragraph [47]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 at paragraph [78]
Radiology
54Mr Murphy had an x-ray and an ultrasound of his right hip on 16 February 2019. The ultrasound revealed a small indirect inguinal hernia.[39]
[39] Plaintiff Exhibit P2, PCB 33-34
55Mr Murphy then had an MRI scan of the right hip on 19 February 2019 which suggested the presence of a small labral tear.[40]
[40] Plaintiff Exhibit P2, PCB 35
56An MRI scan of the lumbar spine was performed on 8 April 2021[41] The radiologist’s report stated that the MRI showed moderate disc space narrowing at L1-L2 and L2-L3; mild chronic endplate irregularities with no associated marrow oedema adjacent to the L1-L2 disc; no advanced facet joint arthropathy and no pars defect. Further, there were minor disc bulges at L1-2; L2-3 and L3-4. There were no disc bulges at L4-5 or L5-S1. The paravertebral soft tissues were noted to be unremarkable. The radiologist concluded that there was no high-grade central canal or foraminal stenosis and no nerve root compression.
[41] Plaintiff Exhibit P2, PCB 37
Treating doctors’ reports
Dr Lindy Kwok, Chinese medicine practitioner and acupuncturist
57No report was produced from Dr Kwok. Her clinical notes were tendered. According to those notes, Mr Murphy attended Dr Kwok on four occasions in December 2017 for acupuncture to his neck and shoulder.[42] Mr Murphy reported low-back pain to Dr Kwok on one occasion on 5 January 2018. There is nothing recorded in the clinical note as to the onset of the low-back pain or the circumstances in which it occurred. Dr Kwok treated the area with acupuncture.
[42] Plaintiff Exhibit 14, PCB 196-198
Dr Vera Ramasamy, general practitioner (The Clinic Footscray)
58Mr Murphy tendered extracts of clinical notes of The Clinic Footscray[43] and reports of Dr Ramasamy dated 4 June 2020 and 19 September 2021[44].
[43] Plaintiff Exhibit P3, PCB 40-47
[44] Plaintiff Exhibit P7 PCB 72-74
59Mr Murphy first attended The Clinic Footscray on 27 March 2018.
60Mr Murphy saw Dr Ramasamy on five occasions:
· 27 March 2018, when he reported a two-month history of increasing right groin pain and right lateral hip pain which was most severe when lifting boxes at work.[45] The clinical note of that attendance specifically recorded that there was no back pain at the time.[46]
· 27 March 2018, Dr Ramasamy referred Mr Murphy for a right hip x-ray and a right hip ultrasound[47] but no such imaging was obtained at the time.
· 9 August 2018 – the clinical notes recorded a complaint of worsening right groin pain. The plaintiff was again referred for a right hip x-ray and a right hip ultrasound.[48]
· 7 December 2019, where his condition remained unchanged.
· 24 June 2020 and 21 September 2020 – the clinical notes recorded that Mr Murphy was awaiting a hernia repair operation.
[45] Plaintiff Exhibit 7, PCB 72
[46] Plaintiff Exhibit 3 PCB 40
[47]Plaintiff Exhibit 3, PCB 42
[48]Plaintiff Exhibit 3, PCB 41
61Significantly, Dr Ramasamy was asked to comment on the medico-legal opinion of Mr Peter Wilde, orthopaedic surgeon, dated 21 December 2020.[49] She declined to do so, saying it was outside of her scope as a GP and adding she had not seen Mr Murphy in relation to any back pain and was unaware he had undergone imaging of his lumbar spine.[50]
[49]Plaintiff Exhibit P9, PCB 86-91
[50] Plaintiff Exhibit 7, PCB 73-74
Dr Simon Benson, general practitioner (The Clinic Footscray)
62Four reports of Dr Benson dated 23 May 2019, 6 September 2019, 5 August 2021 and 13 August 2021[51] were tendered.
[51]Plaintiff Exhibit P4, PCB 48-55 and 57-58
63Dr Benson first examined the plaintiff on 16 February 2019. The examination revealed tenderness in the right groin but no spinal tenderness. In his report dated 6 September 2019, Dr Benson noted that there had been no medical treatment provided, apart from the prescription of anti-inflammatory medication. He stated:
“His prognosis is uncertain; he has never received a specialist opinion on the cause of his pain. If the hernia is the cause, as would seem likely, he would need surgical repair of it and could then be expected to make a full recovery.”[52]
[52]Plaintiff Exhibit P4, PCB 53
64When Dr Benson reviewed Mr Murphy on 15 October 2020 (three days after the hernia surgery), Mr Murphy told Dr Benson that the pain he had experienced prior to the operation had “completely disappeared”.[53]
[53] Plaintiff Exhibit 4, PCB 54
65Dr Benson confirmed the plaintiff re-attended The Clinic and had been seen by another doctor (Dr Buckley) on 26 April 2021 which was the last attendance referred to in the reports.
66In a report dated 13 August 2021, Dr Benson was requested to comment on the medico-legal opinion of Mr Peter Wilde dated 21 December 2020. Dr Benson noted that he had not seen Mr Murphy since 15 October 2020. He agreed with Mr Wilde’s conclusion that Mr Murphy’s employment had contributed to his current pain but again noted that the ongoing symptomatology had not been definitively explained. He noted that Mr Wilde had diagnosed the plaintiff with a soft tissue injury of the lumbar spine and commented this was a “very vague diagnosis”.[54] Dr Benson did not record any complaints of back pain.
[54] Plaintiff Exhibit 4, PCB 58
Dr David Love, treating orthopaedic surgeon
67Five reports of Dr Love, dated 1 November 2019, 2 February 2021, 7 June 2021, 1 September 2021 and 12 December 2022 were tendered.[55]
[55] Plaintiff Exhibit P6, PCB 59-71
68In his report dated 1 November 2019, Dr Love confirmed that he had seen Mr Murphy for treatment purposes on one occasion. Mr Murphy reported to him that he had suffered injury to his right hip and right groin on 29 December 2017, after lifting heavy boxes of bottles at work and had, since that time, experienced sharp, stabbing pains in his right groin which radiated into his buttock. Mr Murphy was diagnosed with a hernia for which he had undergone surgical review. There was no recorded complaint of back pain. Dr Love was unable to provide a clear diagnosis or prognosis and considered alternate diagnoses including hip-related pathology or osteoarthritis not evident on the MRI or some spine-related pathology.
69He recommended the use of a local anaesthetic and corticosteroid injection into the right hip for both therapeutic and diagnostic benefit, a trial of physiotherapy and the use of a pain journal.
70In his report dated 2 February 2021, Dr Love noted that Mr Murphy had not returned to him for treatment review but had been referred by solicitors for a medico-legal review. None of Dr Love’s earlier recommendations had been implemented. Mr Murphy told him that his symptoms had changed and that he “now describes pain in his right groin and also in his right buttock but with no radicular symptoms”.[56] There was no recorded complaint of back pain. Dr Love was still unable to provide a diagnosis. He said there was a differential diagnosis “of either a pathology in the hip, for which I have very little evidence, or a pathology in his spine such as a disc prolapse”.[57] Dr Love was unable to provide any further details regarding pathology, natural history, prognosis or causation until there was an established diagnosis. He repeated the recommendation that Mr Murphy should have an injection to his right hip and an MRI scan of his spine.
[56]Plaintiff Exhibit P6, PCB 62
[57]Plaintiff Exhibit P6, PCB 63
71Dr Love next reviewed Mr Murphy via Telehealth on 31 May 2021, and prepared a report dated 7 June 2021. No clinical examination took place. By that time, Mr Murphy had undergone a steroid injection into the right hip which provided approximately four weeks of “near complete relief”. Mr Murphy reported symptoms of discomfort in the right hip with an occasional catching sensation. No complaint of back pain was recorded. Dr Love had access to the MRI of the lumbar spine dated 8 April 2021.[58] After reading the report, Dr Love concluded there was “no evidence of any significant spinal pathology that may account for pain in his right hip”. Given this, Dr Love concluded the best diagnosis was “mild or subclinical arthropathy affecting his right hip which is yet to show any significance on the MRI …”.[59]
[58]Plaintiff Exhibit P6, copy MRI scan dated 8 April 2021 annexed to Dr Love’s report at PCB 67 and Plaintiff Exhibit P2, PCB 37
[59] Plaintiff Exhibit P6, PCB 65
72Dr Love provided a further report dated 1 September 2021 in response to a request from the solicitors acting for the plaintiff for his comment on the report of Mr Peter Wilde dated 21 December 2020. Dr Love agreed with the “assessment in that work is a contributory factor” but that the “exact diagnosis between Mr Wilde’s opinion and mine may vary slightly”.[60] This appears to be a reference to the fact Mr Wilde diagnosed a soft tissue injury to the lumbar spine with somatic referral to the buttock and a small ganglionic cyst in the right hip, whilst Dr Love considered there was no evidence of any spinal pathology, and that the plaintiff was in fact suffering from a condition of the right hip.
[60]Plaintiff Exhibit P6, PCB 68
73Dr Love’s final report dated 12 December 2022 confirmed there had been no change in the plaintiff’s symptoms and no further treatment since his earlier review in 2021. He said that Mr Murphy’s hip was “the prominent problem”.[61] Despite not referring to any complaints of back pain in earlier reports, Dr Love stated that Mr Murphy “continues to describe pain in his back”.[62] Dr Love did not explain when these complaints had been made. Further, it appears that Dr Love’s opinion had changed after reading the medico-legal reports of Mr Wilde and Mr Dooley. He said that Mr Murphy was suffering “multiple pathologies”,[63] including degenerative change in his lumbar spine and osteoarthritis of the right hip, but he did not explain why he had changed his opinion. Dr Love accepted both the right hip and spinal conditions were attributable to employment and that it was likely that there would be further deterioration within his right hip and spine. Dr Love did not comment on work capacity in this report.[64]
[61] Plaintiff Exhibit P6, PCB 71
[62] Plaintiff Exhibit P6, PCB 70
[63] Plaintiff Exhibit P6, PCB 71
[64]Plaintiff Exhibit P6, PCB 69-71
Mr Anthony Hyett, consultant surgeon
74Mr Hyett was involved in the surgical decisions regarding the hernia. He noted that there was a complaint of back pain in his report of 24 September 2019, but Mr Hyett did not treat Mr Murphy’s back. His reports[65] do not address any matters relevant to this application.
[65] Plaintiff Exhibit P13, PCB 192-195
Dr Ian Relf, general practitioner and medical acupuncturist
75Dr Relf treated Mr Murphy for right groin pain on referral from Mr Hyett. His reports[66] do not address any matters relevant to this application.
[66] Plaintiff Exhibit P12, PCB 190-191
Associate Professor Mehrdad Nikfarjam, laparoscopic surgeon
76Mr Murphy ultimately underwent a laparoscopic hernia repair on 12 October 2020 performed by Associate Professor Nikfarjam. His reports[67] do not address any matters relevant to this application.
[67] Plaintiff Exhibit P8, PCB 75-83
Comment on treating doctors’ reports
77The only record of any treatment directed to Mr Murphy’s low back was in the clinical notes of Dr Kwok dated 5 January 2018 which revealed that some acupuncture was used on the low back on that one occasion.
78There were no recorded complaints of back pain made to the general practitioners, and Dr Love did not refer to any complaints of back pain in his first four reports.
79As mentioned above, Dr Love did not explain the circumstances surrounding his last report in which there was a reference to back pain.
80Dr Love’s final report accepted that Mr Murphy had degenerative changes in his lumbar spine but was silent as to consequences, treatment or work capacity.
81No material was tendered from any treating doctor about any treatment provided to Mr Murphy post 31 May 2021, which was the last time Dr Love saw him via Telehealth.
Mr Murphy’s Medico-legal reports
Dr Umberto Boffa, consultant occupational and environmental physician
82One report of Dr Umberto Boffa dated 5 January 2021 was tendered.[68] Dr Boffa noted that since the hernia surgery, Mr Murphy was experiencing less pain in his groin and scrotum but he continued to experience right gluteal iliac crest gluteal hamstring and occasional calf pain. There was no recorded complaint of back pain. Mr Murphy was working full time as a self-employed truck driver.
[68] Plaintiff Exhibit P10, PCB 107-110
83Dr Boffa’s opinion was that Mr Murphy had signs and mechanical symptoms of a right hip labral tear and piriformis syndrome associated with pseudo-sciatica. It was his view that Mr Murphy was unable to return to pre-injury duties as a bottle shop worker but that he was fit for pre-injury hours and duties that allowed changes in posture and that he should avoid prolonged standing, sitting, driving and walking and repetitive bending crouching, pushing, pulling, lifting and carrying more than 10 kilograms.
84Dr Boffa had been told about Mr Murphy’s office-based work experience but did not directly comment on his capacity to undertake such office-based work.
85Dr Boffa recommended treatment directed to Mr Murphy’s hip – in the form of ultrasound-guided piriformis corticosteroid injection with a Botox injection later if necessary and to an exercise physiologist for stretching and strengthening exercises appropriate to piriformis syndrome. He opined that right hip arthroscopic labral repair may ultimately be required. Dr Boffa was of the view that there was a fair prognosis for improvement in his condition and capacity following successful treatment.
Mr Peter Wilde, orthopaedic surgeon
86Three reports of Mr Peter Wilde, dated 21 December 2020, 24 August 2021 and 21 November 2022 were tendered.[69]
[69] Plaintiff Exhibit P9, PCB 86-106
87Mr Wilde first examined Mr Murphy on 21 December 2020 and obtained a history of pain in the buttock and right groin dating back to September 2017, whilst Mr Murphy was working in a bottle shop. Mr Murphy was not taking medication and was driving a truck for approximately 30 hours per week. Clinical examination revealed some tenderness in the right paraspinal region and tenderness over the lateral aspect of the right hip and groin; lumbar movements were restricted slightly, especially flexion. Mr Wilde diagnosed a soft tissue injury to the lumbar spine with somatic referral into the right buttock and a right labral hip tear with a ganglionic cyst and a right inguinal hernia. It was his view that the prognosis was good if Mr Murphy had appropriate treatment. Mr Wilde recommended an MRI scan of the lumbar spine which could be followed with a course of Pilates or hydrotherapy.
88Mr Wilde re-examined Mr Murphy on 24 August 2021, at which time he reviewed the lumbar MRI. Mr Wilde was told that Mr Murphy was not having any active treatment and would use over-the-counter medication (Panadol or Nurofen) when necessary. Mr Murphy was driving a truck which had an air seat, for 5 hours a day. Clinical examination was similar to the first examination but there were increased restrictions on lumbar movement due to slight discomfort. Despite his earlier opinion that there was a soft tissue injury, Mr Wilde altered his diagnosis to an aggravation of lumbar spondylosis without radiculopathy. He did not explain the basis of this altered diagnosis. Mr Wilde considered that Mr Murphy could not return to physical or manual work such as stacking shelves. He was able to work part time as a truck driver (25 hours a week) as he was not required to physically load or unload goods and was using a specialised air seat. Although Mr Wilde had been informed of Mr Murphy’s previous work in the insurance industry, he was not asked to comment on his capacity to undertake sedentary work. Mr Wilde noted that Mr Murphy could manage most activities about the house and was not particularly restricted in this regard. Mr Wilde said that the prognoses for both the low back and hip condition were fair. He encouraged Mr Murphy to lose weight, exercise more and attend a gymnasium for an exercise program or swim two or three times per week. He considered that Mr Murphy did not require other treatment such as physiotherapy for the back or hip.
89Mr Wilde further examined Mr Murphy on 21 November 2022. On this occasion, Mr Murphy complained of persistent pain across the right sacroiliac and right buttock region extending into the upper hamstrings. On clinical examination, lumbar movements were restricted, principally due to pain. Mr Wilde provided a different diagnosis on this occasion. He opined that Mr Murphy sustained a soft tissue injury of the lumbar spine (as he had said in his first report) and possibly a disc injury at L1-2 or L2-3 or L4-5 with persistent lumbar dysfunction and somatic referral into the right buttock, with no features of radiculopathy. Mr Wilde did not explain the basis of his new diagnosis of a possible disc injury,[70] but ultimately said that the most appropriate diagnosis was aggravation of pre-existing upper lumbar disc disease without radiculopathy. He repeated his opinion that Mr Murphy was prevented from returning to heavy, physical manual work. He was fit to work as a light task truck driver for 5 or 6 hours per day, four days per week (20 to 24 hours a week). Mr Wilde did not address the question of Mr Murphy’s capacity for sedentary work.
[70]The MRI showed minor disc bulges at L1-2 and L2-3 and no bulges at L4-5
Defendant’s medico-legal reports
90Mr Murphy was examined by Mr Michael Dooley, Dr Sam Soliman and Dr David Merenstein at the request of the defendant.
Mr Michael Dooley, orthopaedic surgeon
91Two reports of Mr Dooley dated 23 February 2021 and 9 November 2022 were tendered by Mr Murphy.[71]
[71] Plaintiff Exhibit 19, DCB 3-7 and 26-30
92In his first report, Mr Dooley noted, on physical examination, there was no deformity of the lumbar spine but there were complaints of tenderness of the right low lumbar region and sacroiliac joint areas with normal power, tone, sensation and reflexes. Mr Dooley noted that there was no radiology available for his review at that time. He diagnosed a soft tissue injury to his lumbar spine which involved some musculoligamentous damage and may have involved some aggravation of symptomatic degenerative disc change of the low lumbar spine, based on Mr Murphy’s history.
93Mr Dooley next examined Mr Murphy on 8 November 2022. Mr Dooley did not have access to the actual MRI scan of April 2012 but was able to review the radiologist’s report. Mr Dooley noted the scan reportedly showed “significant degeneration at the L1/2 and L2/3 levels”. He opined these were naturally occurring and degenerative in nature. He said that an aggravation of lumbar spine degeneration at such levels could cause low-back pain and could also cause referred pain in the lower abdominal, groin and upper thighs. Mr Dooley therefore accepted that spinal degeneration was the most likely explanation for the right groin pain Mr Murphy described. Mr Dooley expressed the opinion that Mr Murphy would struggle to carry out regular heavy physical work that involved a lot of lifting, bending and manoeuvring. However, he noted that Mr Murphy was working around 20 hours a week as a truck driver with seat cushioning in the truck and he was fit to continue in that employment.
94Mr Dooley was asked to specifically comment on whether the jobs identified in the Evidex Vocational Report dated 21 July 2022 constituted suitable employment for Mr Murphy and whether he had the capacity to work in such jobs. The jobs were:
(a) Hospitality, retail and service manager;
(b) Insurance consultant;
(c) Human resources manager;
(d) Health and welfare services manager;
(e) Corporate services manager;
(f) Corporate general manager; and
(g) Truck driver.
95From an orthopaedic point of view, Mr Dooley said Mr Murphy had a physical capacity to carry out light physical work and clerical type work which included jobs (b)-(f) above. In terms of job (a), Mr Dooley said it would depend on how much on the floor work was required. Mr Murphy was working as a truck driver and Mr Dooley accepted that he had the physical capacity to work as a truck driver but would need to avoid heavy loading and unloading.
96He said although it was very difficult to estimate the number of hours Mr Murphy could work, it was his opinion that Mr Murphy could work 28 to 30 hours a week in suitable employment.
Dr Sam Soliman, occupational medical consultant
97Dr Soliman’s report dated 23 August 2022 was tendered by the defendant.[72] He examined Mr Murphy on 23 August 2022. He recorded that Mr Murphy told him that he –
“… stopped working at the end of April 2018 and he has not worked since then. He stated that he is looking after his 68 year old father who had a couple of strokes as well as dementia, paralysis and heart failure.
Mr. Murphy stated that he has not undertaken any paid employment since he stopped working.[73] He is currently receiving Centrelink / Carer payment as he is looking after his father as well as his 7 year old daughter for 2 years … .”[74]
[72] Defendant’s Exhibit D2, DCB 8-18
[73] Mr Murphy denied providing such a history – T85, L28
[74] Defendant’s Exhibit D2, DCB 9-10
98Mr Murphy told Dr Soliman that he had worked for twenty years doing project work.[75] Dr Soliman noted the history of truck driving work set out in Mr Wilde’s report. Mr Murphy complained that his tolerances were limited to 30 to 40 minutes for walking, standing, sitting and driving. On examination, Mr Murphy complained of tenderness in his mid-back, buttock, thigh and right groin area, with pain on extension and lateral flexion. Dr Soliman opined that Mr Murphy’s presentation involved a degree of functional overlay and movement limitation considering the lack of pathology to explain the ongoing right groin and right buttock pain and their inconsistency with Dr Soliman’s direct observation. He considered that Mr Murphy was fit for full-time work, and was of the opinion that suitable duties for Mr Murphy included truck driving and sedentary work such as project work, and that the jobs identified by Evidex in its vocational assessment of 21 July 2022 were all suitable employment options and that Mr Murphy had the capacity to perform all the jobs on a full-time basis.
[75] Defendant’s Exhibit D2, DCB 11
Dr David Merenstein, general surgeon
99Dr Merenstein’s report dated 22 August 2022 was tendered by Mr Murphy.[76] He examined the plaintiff on 19 August 2022. Dr Merenstein noted what he described as a consensus of opinion from Dr Love, Mr Wilde and Mr Dooley that Mr Murphy had suffered a soft tissue injury to his lower spine due to employment which was an aggravation of degenerative changes. Dr Merenstein said there was “minimal pathology”[77] seen on the MRI imaging.
[76]Plaintiff’s Exhibit P20, DCB 19-25
[77] Plaintiff’s Exhibit P20, DCB 22
100Dr Merenstein was asked to comment on the Evidex vocational assessment of 21 July 2022. He expressed the opinion that Mr Murphy was capable of undertaking suitable employment, particularly in the fields that he has been previously trained such as insurance consultant, human resources manager, health and welfare services manager, corporate services manager and corporate general manager. Mr Murphy was also capable of truck driving. His capacity was limited by restrictions of avoidance of physical exertions such as lifting weights greater than 5 kilograms, pushing, pulling, bending, squatting and twisting. It was his opinion that suitable tasks should be office-type in nature and sedentary if possible. In relation to weekly hours of work, it was his opinion that Mr Murphy should initially start on reduced hours of 4 to 5 hours per day, and gradually increase as tolerated.
Vocational assessments
Evidex reports dated 21 July 2022
101Mr Murphy tendered an Evidex vocational assessment report dated 21 July 2022.[78] Parts of this report were inadmissible. Mr Murphy also tendered an Evidex report on earnings, also dated 21 July 2022.[79]
[78]Plaintiff Exhibit 11, PCB 111-173
[79]Plaintiff Exhibit 11, PCB 174-189
102The vocational assessor considered that Mr Murphy retained the skills to work in the seven roles referred to above in the discussion of Mr Dooley’s report dated 9 November 2022.
103The vocational assessor considered that Mr Murphy’s injuries (plural) to his “back, shoulders, neck, hips and psyche among others”[80] reduced his functional capacity, and that the likelihood of him returning to alternative employment, even with occupational rehabilitation and retraining, was poor.
[80] Plaintiff Exhibit 11, PCB 114 and 111-117
104The vocational assessor relied upon the combination of Mr Murphy’s injuries and what was described as “secondary psychological sequalae”[81] to form her opinions.
[81] Plaintiff Exhibit 11, PCB 120, 122, 136, 138, 139, 140, 141 and 142
105In this application, the Court is required to consider whether impairment to the claimed body function gives rise to pecuniary loss consequences.
106The Evidex vocational assessment does not assist the Court in this task as it considered other injuries and other alleged impairments, or restrictions caused by other body functions and psychological sequalae which cannot be considered in this application.[82]
[82] Section 325(1)(h) the Act
107The Evidex report on earnings merely sets out in further detail the value of earnings for the seven roles set out on the Evidex vocational assessment.
Recovre Report dated 16 November 2022
108The plaintiff relied upon a vocational assessment report prepared by Recovre dated 16 November 2022[83] which identified a number of alternative employment options and their full-time gross weekly earnings. This report was of little assistance as there was no corresponding medical material commenting on the suitability of the suggested options.
[83] Plaintiff Exhibit 21, DCB 31-57
Economic loss
What is required by the Act?
109In order to establish the relevant level of consequences in respect of loss of earnings, Mr Murphy must establish, at the date of the hearing, that:
(a) the relevant loss has satisfied the narrative test in s325(2)(b) and (c), namely that the loss of earning capacity consequences when judged by comparison with other cases in the range of possible impairments or losses of a body function, were fairly described as being more than significant or marked, and as being at least very considerable;
(b) that he has sustained a loss of earning capacity of 40 per cent or more, as set out in s325(2)(e)(i) equivalent to 40 per cent of gross earnings measured as set out in s325(2)(f); and
(c) pursuant to s325(2)(e)(ii), he will continue permanently to have such a loss of earning capacity.
110In summary, the appropriate sequence for the Court to follow is:
(i) determine Mr Murphy’s “without injury” earning capacity;
(ii) calculate the amount which is 60 per cent of the “without injury” earning capacity; and
(iii) determine whether Mr Murphy has proved that his “with injury” earning capacity is no greater than 60 per cent of the “without injury” earning capacity.
Financial evidence
111The following financial documents were tendered:
(i) summary of earnings (prepared by Mr Murphy’s solicitors);[84]
(ii) personal taxation returns for the financial years ending 2012-2022;[85]
(iii) draft profit and loss statements of Hampshire Cellars for the financial years ending:
·30 June 2020
·30 June 2021
·30 June 2022;[86]
[84] Plaintiff Exhibit P15, PCB 200
[85] Plaintiff Exhibit P16, PCB 240-245, DCB 61-92
[86] Plaintiff Exhibit P22, DCB 58-60
(iv) taxation return for Hampshire Cellars for the financial year ending 30 June 2018;[87] and
(v) taxation return for Hampshire Cellars for the financial year ending 30 June 2020.[88]
[87] Plaintiff Exhibit P23
[88] Plaintiff Exhibit P24
Plaintiff’s submissions on economic loss
112Senior Counsel for Mr Murphy opened the case on economic loss on the following basis:
· Using the 2015‑2016 taxation return, which indicated earnings at $132,068.00, it was said that 60 per cent of that figure is $79,248.80.
· It was not explicitly stated, but it appears that Mr Murphy asserts that the sum of $132,068 is the figure which “most fairly reflects” his pre-accident earning capacity.
· Based on the assessment of Mr Dooley, it was asserted that if the plaintiff had a capacity to work 30 hours a week as a truck driver, then the appropriate 60 per cent figure would be $58,968.[89]
[89]T4, L7-20
113Despite making these opening submissions, Senior Counsel then submitted that the Court should not approach this case in that manner.[90]
[90] T5, L4-5
114It was said that the plaintiff’s case was:
“Our case is that the plaintiff is exercising his earning capacity to the full working, driving trucks to the extent that his symptoms permit that owned by Hampshire Cellars Pty Ltd … That business is running at a loss and the most recent figures from 2021 are at defendant’s court book, p.59, shows that loss in that period was $317,267.16.”[91]
[91]T5, L5-8, 12-14; Plaintiff Exhibit P22, DCB 59, Profit and Loss statement for Hampshire Cellars Pty Ltd, July 2020 - June 2021
115Confusingly, in spite of the opening, later, in closing, Senior Counsel for the plaintiff repeated the claim based on a 30-hour week, as identified by Mr Dooley, and also asserted that the plaintiff was exercising his remaining earning capacity. It was said that the plaintiff’s earnings did not exceed $79,240.80.[92]
[92] T147, L4-14
116At no time did the plaintiff provide any evidence as to his current earnings.
117It appears that the plaintiff ultimately put two cases regarding pecuniary loss.
118The first was that if he had not been injured, he would have been capable of earning $132,068 per annum in the insurance industry.
119The plaintiff’s taxation return for the 2015/2016 financial year was tendered[93] which revealed declared income of $132,068 for the relevant period which included a ‘one off’ payment of approximately $22,000 from Allianz – which was a type of non-compete payment by which Mr Murphy could not work for another insurer for a period of three months.[94]
[93] Plaintiff Exhibit P16, PCB 240-242
[94] T19, L8-26
120Alternatively, it was put that had he not been injured, he would have been capable of earning at least some unidentified figure in his current business, performing all of the work for himself.
121The plaintiff submitted that the height of medical evidence regarding the plaintiff’s capacity was Mr Dooley, who considered the plaintiff had capacity for a total of 30 hours per week.
122The plaintiff further submitted, in taking the earnings of a truck driver, being the most well-paid position from the Recovre vocational assessment report dated 16 November 2022, and transposing 30 hours per week onto those figures, this left the amount of $58,968. The plaintiff submitted this was well below the 60 per cent figure (of $79,248.80) of the plaintiff’s earnings from 2015/2016.
123The plaintiff said he was exercising his earning capacity to the fullest extent that his symptoms permitted.
124Senior Counsel for the plaintiff otherwise submitted the plaintiff could not freely move into some completely different form of employment and ignore Hampshire Cellars, as this would have devastating financial consequences on the plaintiff’s father, whose residence was being used as security for a business loan.[95]
[95] T5, L20-25
125Prior to the injury, the plaintiff worked for a number of employers within the insurance/brokering industry. His roles varied but included claim manager, risk assessor, team leader and return to work coordinator.
126The plaintiff said this included assessing “high risk” workers’ compensation claims. The plaintiff said this referred to claims which involved a degree of complexity in relation to attempting to return an injured person back to the workforce. The plaintiff said he was at times required to attend conferences and liaise with the injured person’s general practitioner and the employer to manage the claim appropriately.
127The plaintiff said at one stage, he was employed within the insurance industry as an operations manager, which involved supervising a team of sixty staff who handled and assessed workers’ compensation and motor vehicle accident compensation claims.[96]
[96] T22, L25-31, T23, L1
128The plaintiff submitted that there was a need to sit for extended periods of time within the insurance industry and that his capacity to do this was significantly reduced.[97] The plaintiff submitted that his current role of truck driving allowed him to take regular breaks from sitting at the delivery points, were fairly regular and he could get out and stretch.[98]
[97] T109, L18-21
[98] T109, L28-31
129The plaintiff also gave evidence that he was unaware of any roles within the insurance industry that would allow him to work on a part-time basis of three to three-and-a-half days per week (as per Mr Dooley’s suggestion he had capacity of 28 to 30 hours per week) and that he had been out of the insurance industry for five years and that he had not done any further training in any developments within the injury since 2017.[99]
[99] T134, L9-16
130The plaintiff submitted he satisfied the requisite test for pecuniary loss, being that he had suffered a loss of earning capacity of 40 per cent or more as per s325(2)(f) of the Act and that he will continue to permanently to have such a loss of earning capacity.
Defendant’s submissions on economic loss
131The defendant, in response, submitted:
· The plaintiff had the capacity to undertake suitable employment.
· If there was any incapacity to return to suitable employment, it was wholly unrelated to the claimed injury.
132The defendant submitted that the plaintiff could return to insurance work and earn well above the 60 per cent but he had decided not to as he was currently focused on investing time and effort into the success of Hampshire Cellars.
133The defendant did not put any specific figures as to “without injury” earnings. The defendant submitted that Mr Murphy could earn the “kind of sums he earned in 2016”. [100]
[100]Defendant’s written submissions dated 14 February 2023, paragraph 16(d)
134The defendant submitted that in the absence of proper taxation returns, lodgements, notices of assessment and a true declaration of income and expenses, Mr Murphy had failed to establish the requisite economic loss.[101]
[101]T177, L16-21
Can the Court determine Mr Murphy’s “without injury” earning capacity?
135For the reasons which follow, I do not accept that the sum of $132,063 “most fairly reflects” his “without injury” earning capacity.
136First, it is a figure that is cherry picked out of a series of figures and relates to one financial year only – the financial year ending 30 June 2016 – and includes a termination bonus of $21,772 which was paid to the plaintiff by Allianz Australia Services Pty Ltd in effect as a “non-compete” payment.[102]
[102] Plaintiff Exhibit 16, taxation return 30 June 2015, PCB 241 and T19, L8-28
137Further, the legislation requires a consideration of the gross income that a worker was earning or capable of earning, or would have earned, or would have been capable of earning, during that period within three years before and three years after the injury which most fairly reflects the worker’s earning capacity had the injury not occurred.[103]
[103]Section 325(2)(f)(ii) of the Act
138The figures set out in the summary of earnings[104] reveals the following gross figures for that relevant period:
[104] Plaintiff Exhibit 15, PCB 200
Year ending 30 June 2014 $91,686
Year ending 30 June 2015 $94,886
Year ending 30 June 2016 $132,068
(Which needs to be adjusted given the above evidence. The adjusted figure is $110,296)
Year ending 30 June 2018 $14,645
(Which would need to be adjusted due to non-disclosure of income)
Year ending 30 June 2019 $21,334
Year ending 30 June 2020 $22,818.
139It is not appropriate to simply cherry pick the highest (or the lowest) figure out of that six-year period.
140The figures referred to above for the pre-accident period are unreliable, particularly in circumstances where the plaintiff conceded in cross-examination that he did not declare income in the 2017-2018 financial year to the ATO.
141Further, the figures produced for the post-accident period are unreliable as they relate to government allowances only (presumably the carer’s allowance Mr Murphy has been receiving) which are not earnings from personal exertion.
142The draft profit and loss records of Hampshire Cellars[105] prepared and produced by Mr Murphy are not accurate, as conceded by the plaintiff in cross-examination.
[105] Plaintiff Exhibit 22, DCB 58-60
143Even if one accepted the plaintiff’s assertion that the figure of $132,068 did reflect “without injury” earnings (which I do not accept for the reasons set out above), then the plaintiff would not establish the necessary 40 per cent loss.
· Based on the plaintiff’s own figure of $132,068, this equates to $2,539.76 gross per week. On the assumption that the figure was based on a 38-hour week in the insurance industry, that extrapolates to $66.83 per hour (in 2016).
· Senior Counsel for the plaintiff submitted the Court should accept that the plaintiff had a limited capacity of 30 hours a week (based on Mr Dooley’s assessment).
· Whilst I have formed the view that the plaintiff’s capacity for work is greater than 30 hours a week (see reasons below) on the plaintiff’s own submission, he would fail to establish the necessary 40 per cent loss. This is because, on my analysis, accepting, for the purpose of this calculation that the plaintiff had a capacity to work 30 hours a week in the insurance industry, even using dated figures, $66.83 per hour by 30 hours per week equals $2,005 per week, which, when annualised, amounts to $104,264 which is well above the 60 per cent figure of $79,240.80 contended by the plaintiff.
What is the amount which is 60 per cent of the plaintiff’s “without injury” earning capacity?
144Given the unreliability of the financial material presented by Mr Murphy, the Court is unable to ascertain what figure most fairly reflects Mr Murphy’s “without injury” earning capacity, and therefore the Court cannot determine the relevant 60 per cent figure.
Has Mr Murphy proved that his “with injury” earning capacity is less than 60 per cent of his “without injury” earning capacity?
145Having considered the whole of the evidence, and for the reasons discussed as follows, I find Mr Murphy has the capacity for full-time sedentary work.
146Mr Murphy did not satisfy me that he could not return to work in the insurance industry because of injury. He has chosen not to do so for his own reasons.
147Despite my reservations about Mr Murphy’s credit, I accept that there is sufficient medical evidence to establish that heavy manual labouring work is now beyond Mr Murphy’s physical capacity.
148He has demonstrated a capacity to work at least 30 hours a week as a truck driver with an air seat in his truck.
149The Evidex vocational assessor accepted that the plaintiff continued to have the skills to work in sedentary work, and considered that the plaintiff’s significant ongoing functional incapacities left him uncompetitive in the labour market, and noted that the plaintiff had physical and secondary psychological sequelae which underpinned their assumptions.[106]
[106]Plaintiff Exhibit 11, PCB 118
150Given my assessment of the evidence as a whole, I do not accept the conclusion within the Evidex vocational report that Mr Murphy’s functional restrictions prevent him from full-time employment and employment in all occupations for which he has qualifications and experience, given his work history and his significant background in the insurance industry.
151I do not accept the Evidex vocational assessor’s conclusion that Mr Murphy’s current employment as a truck driver is limited to part-time, 5 hours per day, five days a week[107] – it is contrary to Mr Murphy’s own evidence.
[107]Plaintiff Exhibit 11, PCB 137
152Further, none of Mr Murphy’s doctors have reviewed the Evidex vocational assessment which had been commissioned by the plaintiff.
153To that end, I prefer the evidence of Dr Boffa and Dr Soliman, that Mr Murphy is fit to work on a full-time basis, over Mr Dooley’s opinion that he was fit to work 28 to 30 hours per week, for the following reasons:
(a) Dr Boffa is an occupational physician and is well qualified to assess industrial capacity;
(b) Dr Soliman is an occupational medicine consultant. He is also well qualified to assess Mr Murphy’s capacity for employment and the appropriate number of hours he could work. Dr Soliman found that Mr Murphy had the following tolerances:
·Sitting/standing/walking/driving: all one hour
·Kneeling to be avoided
·Lifting: repetitive lifting over 6 to 8 kilograms to be avoided.[108]
[108] Exhibit D2, DCB 17
Dr Soliman took these restrictions into consideration and found that none of the sedentary roles identified required heavy manual handling, squatting or kneeling.
154Whilst Mr Dooley is also qualified to assess employment capacity, he provided a qualified opinion as to the number of hours which Mr Murphy could work when he said, “I believe it is very difficult for me to able to estimate the number of hours that Mr Murphy might be able to ultimately work”.[109]
[109] Exhibit P19, DCB 29
155The onus is on the plaintiff to establish a capacity for employment or an incapacity for employment pursuant to s325(1)(g). Mr Murphy has taken no steps to ascertain whether he could participate in rehabilitation or retraining to re-enter the insurance industry.
156Mr Murphy’s assertion that he was not aware of any part-time work in the insurance industry[110] lacked specificity. There was no evidence that he had made any enquiries or made any attempt to identify whether such work existed.
[110] T134, L9-11
157Mr Murphy conceded that he had no current knowledge of any developments in the insurance industry since ceasing working in the insurance industry five years ago or so, and had not undergone any further training in development of the industry since that time.[111]
[111]T134, L12-16
158Mr Murphy worked in the insurance sector over three decades. Although he tried to downplay his experience in his oral evidence, I find Mr Murphy has extensive experience in the insurance industry and in claims under the Act. He is not an unsophisticated person with no knowledge of the WorkCover system.
159It was significant that Mr Murphy was able to self-educate whilst working in his insurance roles and undertake research to prepare himself for his job in the Northern Territory.[112]
[112] T22, L5-21
160There is no logical reason why he could not return to work in the insurance industry. Indeed, Mr Murphy accepted that he could undertake such work in cross--examination “if they gave me an air seat maybe”.[113]
[113] T103, L17-18
161Mr Murphy has taken no steps to participate in rehabilitation or training. He has not discharged his onus under s325(1)(g).
162Mr Murphy asserts that his post-injury earning capacity is “nil” as a he is not receiving any income from Hampshire Cellars. I reject that submission.
163Mr Murphy did not provide a plausible explanation as to why he left a well-paid job at WorkCover, earning over $100,000 per annum, to work in a bottle shop for approximately $14 per hour. He did not explain why the change occurred at or about the same time he changed his name.
164Mr Murphy did not provide any satisfactory explanation as to why he did not return to the insurance industry after he was injured. His explanation that he commenced work as a truck driver for Hampshire Cellars because of some perceived need to service a truck loan was simply illogical in circumstances where there was no corroborative evidence regarding the truck loan and where he had demonstrated a past capacity to earn significant sums in the insurance industry.
165Mr Murphy has chosen to turn his back on what appeared to be a lucrative career in the insurance industry. The choice was exercised by him prior to sustaining injury.
166Given Mr Murphy’s capacity for full-time sedentary work, I further find Mr Murphy is able to return to such work in the insurance industry.
167Mr Murphy has not established, on the balance of probabilities, that his post-injury earning capacity is less than 60 per cent of his pre-injury earning capacity.
168As the 40 per cent loss has not been established, it is not necessary for me to consider its permanency pursuant to s325(e)(ii).
Does Mr Murphy meet the “serious injury” test for pain and suffering?
169An impairment shall not be held to be serious unless the pain and suffering consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, can fairly be described as being more than “significant or marked”, and as being at least “very considerable”.
Plaintiff’s submissions
170It was submitted by Senior Counsel that there had been no cross-examination of Mr Murphy as to the pain and suffering consequences claimed.[114] This submission was repeated by Junior Counsel in her reply. [115]
[114] T146, L11-13
[115] T184, L11-26
171Although it was not explicitly stated, implicit in that submission is the underlying proposition that Mr Murphy’s evidence as to pain and suffering consequences should be accepted unequivocally by this Court.
Defendant’s submissions
172The defendant disputed the assertion that Mr Murphy had not been cross-examined about pain and suffering consequences and pointed to the cross-examination about medical treatment.[116]
[116] T154, L7-29
173In written submissions, the defendant referred to Mr Murphy’s account of pain and its claimed consequences. The defendant submitted:
“The plaintiff claims that ‘pain’ prevents him from sleeping properly as he cannot get comfortable. It is not clear whether this is pain coming from the arthritis in the hip or his back … There is no evidence of regular or strong pain medications and no evidence of any attempts to seek treatment for this alleged pain.”[117]
[117] Defendant’s written submissions dated 14 February 2023, page 8 at paragraph 9
Findings on pain and suffering
174Ms Manova’s cross-examination of Mr Murphy was such that by the conclusion of his evidence, I considered Mr Murphy to be an entirely unreliable witness.
175As a result, it was not necessary for Ms Manova to cross-examine Mr Murphy on every claimed consequence despite the criticisms made by Senior Counsel and Junior Counsel for Mr Murphy in their closing addresses.
176I do not accept that criticism, and note that to allow long and wide-ranging cross-examination would be contrary to the Court’s Practice Note[118] where cross-examination is restricted to 2 hours (subject to the Court’s discretion to extend the time on application).
[118] Serious Injury Practice Note PNCLD SIA 1-2022, paragraph 11.5
177The objective evidence tends to the conclusion that whatever symptoms the plaintiff has in his spine, those symptoms do not prevent him from functioning well in a range of day-to-day and employment activities.
178He has not required any specialist referrals for his back.
179No material has been produced from any doctor who has treated Mr Murphy’s back, whereas he has required specialist referrals for his hip and hernia conditions.
180Dr Love had recommended the MRI investigation but did not provide any actual treatment other than recommending some physiotherapy, regular oral analgesia[119] and an assessment from a pain team specialist.[120]
[119]Plaintiff Exhibit 6, report of Dr Love dated 7 June 2021, PCB 65
[120]Plaintiff Exhibit 6, report of Dr Love dated 12 December 2022, PCB 71
181There is no evidence of physiotherapy or any assessment from a pain team specialist despite Dr Love’s recommendations.
182Doing the best I can, I find that Mr Murphy probably suffers from pain of a low to moderate intensity, which he manages adequately with non-prescription painkillers. He has not required any stronger painkilling medication for his back and when he took stronger painkilling medication, it was for his hip/hernia condition.
183Mr Murphy’s treatment regime is modest. He is not having any treatment other than the occasional use of over-the-counter painkillers. Such a treatment regime is what I consider to be at the lower end of a range of treatments.
184As noted above, I have accepted the independent medical evidence that Mr Murphy has lost the capacity to engage in heavy manual handling work.
185Mr Murphy has retained the capacity to engage in lighter manual work and in full-time sedentary work.
186There was no evidence in this case that the loss of the ability to perform heavy manual work constituted a pain and suffering consequence which, on its own, was serious. Nor were there any submissions made to this effect.
187The short answer to this part of the application is that in circumstances where the plaintiff is an unreliable witness, the objective evidence does not support a finding of “very considerable” consequences.
Conclusion
188Taking all the evidence into account, I am not satisfied that the plaintiff has suffered the requisite loss of earning capacity of 40 per cent as a result of any work-related impairment or that any employment consequences are “serious”.
189Accordingly, the application for leave to bring proceedings for damages for loss of earning capacity is dismissed.
190In relation to pain and suffering, I am not satisfied the consequences can fairly be described as more than significant or marked, and as being at least very considerable.
191The application for leave to bring proceedings for pain and suffering damages is also dismissed.
192I will hear from the parties on the question of costs.
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