Nouroozi v Victorian WorkCover Authority
[2023] VCC 180
•17 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-20-03625
| MOHAMAAD NOUROOZI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2022 (The defendant was ordered to file written submissions with the Court and serve such written submissions on the solicitors for the plaintiff by the close of business on 11 August 2022; the plaintiff was ordered to file written submissions with the Court and serve such written submissions on the solicitors for the defendant by the close of business on 18 August 2022; if appropriate, leave was given for the defendant to file and serve a Reply) | |
DATE OF JUDGMENT: | 17 February 2023 | |
CASE MAY BE CITED AS: | Nouroozi v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 180 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – lower back injury – ultimately paragraph (a) of the definition of “serious injury” – concession that plaintiff was entitled to bring proceedings for “pain and suffering” damages – issues as to whether plaintiff could discharge his onus to establish an entitlement to bring a claim for “pecuniary loss damages” – whether the plaintiff was working pursuant to a contract of service or a contract for services – issues about the calculation of the “without injury” earnings
Legislation Cited: Workplace Injury and Compensation Act 2013, s325; s335; Transport Accident Act 1986
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; De Bono v Victorian WorkCover Authority [2019] VSCA 85; Hunter v Transport Accident Commission [2005] VSCA 1; State of Victoria v Rattray (2006) 154 IR 346; De Bono v Victorian WorkCover Authority [2019] VCC 1342; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Richter v Driscoll & Ors (2016) 51 VR 95; Alter v Alcon Laboratories (Australia) Pty Limited [2008] VCC 713; Caratozzolo v Metroll Pty Ltd & Anor [2007] VCC 1006; Boskovic v Road Maintenance Pty Ltd [2006] VCC 51; Tonkin v Leo Force Pty Ltd [2017] VCC 740; Hodge v Victorian WorkCover Authority [201991] VCC 932; Guthrie, Shane v Campion Education (Aust) Pty Ltd [2009] VCC 1141; Saitoski v G J & K Cleaning Services Pty Ltd [2022] VCC 299; Acir v Frosster Pty Ltd [2009] VSC 454; Herald & Weekly Times Ltd & Victorian WorkCover Authority v Jessop [2014] VSCA 292; Nicholson v Victorian WorkCover Authority [2016] VSCA 146
Judgment: Judgment for the plaintiff. Leave to the plaintiff to bring common law proceedings for both “pain and suffering” and “pecuniary loss” damages in respect to a lower back injury which occurred during the plaintiff’s employment with Jaggers Corporation Pty Ltd and in particular on 13 March 2018.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P D Elliott QC with Ms A Bannon | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr A W Middleton with Mr S Pinkstone | Lander & Rogers |
HIS HONOUR:
1By way of Originating Motion, Mr Mohammad Nouroozi (“the plaintiff”) seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (as amended) (“the Act”) to bring common law proceedings for a lower back injury (“the injury”) which occurred during the course of his employment with Jaggers Corporation Pty Ltd (“the employer”) and, in particular, on 13 March 2018.[1]
[1]The Originating Motion issued in this matter was against the Victorian WorkCover Authority, whereas the various affidavits relied on by the plaintiff name the defendant to be “Jaggers Corporation Pty Ltd”. If the plaintiff was working pursuant to a contract of service or, indeed, a contract for services, there was no issue that the relevant entity was Jaggers Corporation Pty Ltd. For practical reasons I am, when referring to the “defendant” in this proceeding, making reference to Jaggers Corporation Pty Ltd. As I would understand the position of the parties, no issue turns on that.
2The plaintiff sought leave to bring proceedings for “pain and suffering” damages and “pecuniary loss” damages within the meaning of s325(1) of the Act in respect of the injury. At the commencement of the proceeding, counsel for the defendant informed the Court that it was conceded that the plaintiff should be permitted to bring a proceeding against the defendant for “pain and suffering” damages.[2] Following the defendant’s concession, the issue that remained between the parties is whether the plaintiff should be given leave to bring a proceeding against the defendant claiming “pecuniary loss” damages.[3]
[2]See Transcript (“T”) 1, Lines (“L”) 23-24
[3]“Pecuniary Loss” damages is defined in s325(1) of the Act to mean “… damages for loss of earnings, loss of earning capacity, loss of value of services or any other pecuniary loss or damage”.
3The plaintiff was the only witness to give evidence and be cross-examined. Both parties tendered their respective Court Books.[4]
[4]The Plaintiff’s Amended Court Book (“PACB”) dated 25 February 2022 was tendered and marked as exhibit 1; the Plaintiff’s Supplementary Court Book (“PSCB”) dated 29 February 2022 was tendered as exhibit 2; the Amended Defendant’s Court Book (“DACB”) dated 9 June 2022 was tendered as marked as exhibit “A”.
Relevant legal principles
4The 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.[5]
[5]See s335(5) of the Act
5The plaintiff initially relied on paragraphs (a) and (c) of the definition of “serious injury” contained in s325(1) of the Act. However, during the opening delivered by Senior Counsel for the plaintiff, it was made clear that the plaintiff was no longer relying on paragraph (c).[6]
[6]See T2, L1-3
6Paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act states that:
“serious injury means:
(a) permanent serious impairment or loss of a body function.”
7The part of the body said to be impaired for the purposes of paragraph (a) is the lower back.
8In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) the “injury” must be a compensable injury with the employer suffered on or after 1 July 2014;[7]
(b) the “injury” and the resulting impairment under paragraph (a) of the definition of “serious injury”, must be “permanent” – that is, permanent in the sense it is “likely to last for the foreseeable future”;[8]
(c) the consequences to the plaintiff of the injury under paragraph (a) of the definition of “serious injury”, in relation to “pecuniary loss” and “pain and suffering” (if this issue was still alive) must be serious, that is:
“… when judged by comparison with other cases, in the range of possible impairments or losses of a body function … as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”[9]
[7] See s1 of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[8] (Op cit) at paragraph [33]
[9]See s325(2)(b) and s325(2)(c) of the Act
Sometimes these words are referred to as the “narrative test”.
9In addition, in relation to establishing the loss of earning capacity in relation to the organic injury – a court must not grant leave under s335(2)(d) of the Act on the basis that the worker has established the loss of earning capacity required by s325(2)(c) or s325(2)(d) of the Act, unless the worker establishes that:
(a) as at the date of the hearing of an application under s335(2)(d) of the Act, the plaintiff 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;[10] and
(b) the worker will, after the date of the hearing, continue to permanently have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[11]
[10]See s325(2)(e)(i) of the Act
[11]See s325(2)(e)(ii) of the Act
10I refer to the Victorian Court of Appeal decision of De Bono v Victorian WorkCover Authority,[12] wherein the Court upheld an appeal by a worker in relation to a judge at first instance rejecting the worker’s application to commence a common law proceeding claiming pecuniary loss damages. At first instance, the defendant in that proceeding also conceded that the applicant had suffered a compensable injury to his lower back and that the pain and suffering consequences of the impaired functioning of his lower back injury were “serious”. Although dealing with s134AB of the Accident Compensation Act 1985, the predecessor to the subject Act, the legislation in respect to this aspect is in similar terms.
[12][2019] VSCA 85
11The Court of Appeal (consisting of Priest, Beach and McLeish JJA) stated:
“[47]As the respondent correctly submitted, in order to succeed in his application for leave to commence a proceeding claiming pecuniary loss damages, the applicant had to establish that:
(d)his 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 at least very considerable; and
(e)he suffered a loss of earning capacity of 40 per centum or more, measured as set out in s 134AB(38)(f); and
(f)he would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.
[48]A failure by the applicant to establish any one of these three matters would, by the terms of the Act, require the dismissal of his application to commence a proceeding claiming damages for pecuniary loss.”
12Of course, it must be borne in mind that, given the concession by the defendant that the plaintiff was entitled to bring proceedings for “pain and suffering” damages, there can be no issue that the plaintiff has suffered a compensable lower back injury, that such injury is permanent within the meaning of the Act and that any organic “pain and suffering” consequences were sufficient to satisfy the narrative test.
13It is to be noted that:
(a) s325(2)(h) of the Act provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise;
(b) s325(2)(i) of the Act provides that the physical consequences of a mental or behavioural consequence or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise;
(c) s325(2)(j) of the Act provides that the assessment of “serious injury” must be made at the time the application is heard by the Court, subject to some irrelevant exceptions.
14The Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.[13]
[13]See, in particular, Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[26]
The issues
15When queried as to what were the issues in the matter, leading counsel for the defendant stated:
(a) that it was not the position of the defendant that the plaintiff was capable of performing his pre-injury employment – that is, a painter – but, rather, he had a capacity to perform “suitable employment” within the meaning of the Act;
(b) whereas as Senior Counsel for the plaintiff had said that the facts surrounding the relationship between the plaintiff and the employer would suggest a Contract of Employment (that is, a Contract of Service), leading counsel for the defendant noted that the taxation returns would indicate the income declared by the plaintiff was from a business;
(c) leading counsel for the defendant submitted that the fundamental issue was whether the various jobs identified by the defendant were jobs that the plaintiff was capable of performing and, as such, “suitable employment”, and jobs that generated more than 60 per cent of his pre-injury earnings;
(d) counsel for the defendant, in their written submissions, also made reference to s325(2)(g) of the Act, which states:
“(g)a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker’s capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining—
(i) has; or
(ii) after rehabilitation or retraining, would have—
a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred.”
The evidence of the Plaintiff
16The plaintiff relies on two affidavits sworn by him – the first affidavit being sworn, with the assistance of an interpreter, on 4 December 2019[14] ꟷ the second affidavit being sworn, with the assistance of an interpreter, on 10 February 2022.[15]
[14]See affidavit of the plaintiff sworn on 4 December 2019 at pages 18-22 of exhibit 1, PACB 18-22
[15]See further affidavit of the plaintiff sworn 10 February 2022 at pages 23-28 of exhibit 1, PACB 23-28
17Senior Counsel for the plaintiff, in evidence-in-chief, led from the plaintiff that he had sworn both affidavits and he had seen them. Senior Counsel referred the plaintiff to his second affidavit and, in particular, to paragraph 20 at page 26 of exhibit 1. In that paragraph, the plaintiff asserts, inter alia, that his back injury has had a detrimental effect on “[his] relationship with [his] partner which has since ended”.[16] The plaintiff gave evidence that he has resumed a relationship with his partner, although they do not live together, but she is his “girlfriend”.[17]
[16]PACB 26
[17]T24, L16-28
18I refer to the first affidavit and note the following salient matters:
· He was born in September 1983 in Tehran, Iran, and is presently thirty-nine years of age.
· He completed Year 10 schooling in Tehran and thereafter worked in Tehran as a furniture upholsterer, followed by compulsory army service over the period from 2003 to 2004, after which he again worked in Tehran as a sewing machinist.
· He left Iran in 2010 and went by boat to Indonesia and, ultimately, to Christmas Island, where he was detained for about twelve months, and was later then detained in Darwin for about six months. He was granted a bridging visa and then came to Melbourne in 2012.
· He undertook an English course for about a year and was in receipt of Centrelink payments, although, during 2016, he worked for about a week as a sewing machinist at a factory in Brunswick.
· In December 2016, he began working as a painter for the defendant and his work involved painting new houses in Melbourne and surrounding areas.
· In particular, he was provided with the employer’s uniform, he would pick up paint from paint shops and was provided with instructions from his supervisor, Mr Dariusz (“Darek”) Rutkowski, as to where to go and what to do. He was paid at the rate of $30 per hour, including any superannuation allowance.
· He described his work duties of a painter as being “very physical, involving a lot of bending, twisting and lifting”[18] and that he was often required to work in “awkward positions and postures for extended periods”.[19]
[18]Exhibit 1, plaintiff’s first affidavit dated 4 December 2019, paragraph 4 at PACB 19
[19]Exhibit 1, plaintiff’s first affidavit dated 4 December 2019, paragraph 4 at PACB 19
· On the morning of 13 March 2018, he picked up paint from the Painters Pot and then went to work at a house in Stanhope Road, Tarneit, where he commenced working with a co-worker. During the morning, he had been working for about two hours painting walls with a roller, with a lot of “repetitive bending and working from above head height to floor level”.[20] When doing this, he felt severe pain in his lower back.
[20]Exhibit 1, plaintiff’s first affidavit dated 4 December 2019, paragraph 4 at PACB 19
· He was taken by ambulance to Footscray Hospital, where he was given medication and then discharged. He then came under the care of the general practitioners at the Sunshine City Medical Centre.
· In addition to back pain, he was getting shooting pains down both of his legs, with his left leg worse than his right leg.
· He was referred for a CT scan of his lumbar spine on 26 March 2018 and also referred for physiotherapy treatment, which commenced in April 2018 at “Back in Motion” situated in Braybrook.
· Due to his back pain, he had to return to the Footscray Hospital on 7 May 2018 and, at that time, he was also having trouble with his bladder and bowel function. At the hospital, he had a further MRI scan of his lumbar spine.
· He was referred to the Precision Brain and Spinal Centre and in May 2018, he was assessed by the pain specialists, Dr Richard Sullivan and Dr Husam Al-Harafi.
· He was having trouble coping with pain and limitations and in May 2018, he was also referred to, and assessed by, the psychiatrist, Dr Katherine McQuillan, at the Precision Brain and Spinal Centre.
· He underwent a weight-bearing scan of his lumbar spine on 28 May 2018 and was later assessed by a neurosurgeon, Professor Richard Bittar, in August 2018.
· On 5 February 2018, he underwent epidural injections into his spine, which were performed by Dr Sullivan, and was also assessed by a neurologist, Dr Ali Kian Mehr, and understood that nerve conduction studies were undertaken on 1 November 2018.
· During 2018 and early 2019, he had further reviews with Dr Sullivan and in January 2019, he was assessed by another neurosurgeon, Dr Hazem Akil. During 2019, he continued managing ongoing symptoms with medication and hydrotherapy.
· At the time of his first affidavit, he was suffering from constant pain in his lower back, with the pain going up and down during the day and night, but the pain is always there and gets “worse” with activity. He finds the best position for his pain is to lie flat down on his back.
· In addition to the pain in his lower back, he continues to suffer from shooting pains going down both of his legs and these pains “come and go”. He gets the shooting pains on a daily basis, and it can change from day to day as to whether his right leg or left leg is worse than the other.
· The pain in his lower back gets worse if he sits or stands in one position for any length of time and the tingling in his legs also gets worse with sitting and standing. He has to shift positions and move around to try and get comfortable.
· Due to his back pain he has to now avoid any activities which involve heavy lifting or repetitive, strenuous use of his back. He has to be careful that he does not put too much strain on his back, and he has to be careful with bending and twisting movements. If he pushes himself too hard, it can flare up his back pain and the pain and tingling in his legs as well.
· His back symptoms interfere with his ability to do the normal chores around the home and garden – now he avoids gardening because he does not want to make his back pain worse. He only does the lighter cleaning jobs, and this depends upon his pain levels from day to day.
· Prior to suffering his back injury, he enjoyed a normal active lifestyle and enjoyed going to the beach, swimming, bushwalking and going on long walks. Due to his back symptoms, he is now restricted with all of these activities, and he is limited with his walking. He avoids waves at the beach because he does not want to hurt his back and get worse. His back symptoms also interfere with the intimacy of his relationship with his partner.
· He takes Endep, turmeric and Joint Mobility for his symptoms. He also feels that he is suffering on the mental side and getting angry and frustrated very easily. He feels tired and concerned about his future.
· Since the back injury, he has not performed any employment since 13 March 2018.
· As a painter, he was usually working six days per week and earning income of at a rate of about $1,300 gross per week.
· Due to his ongoing symptoms, he does not believe he is capable of work.
19I refer to the second affidavit of the plaintiff and note the following salient matters:
· He is currently under the care of his general practitioner, Dr Iman Tahmasebi, who he consults with monthly. He continues to use the medications Endep and turmeric and understands from his doctors that the Endep assists him with his depression and back pain and that the turmeric helps with his facet joint pain and lower back.
· He commenced to receive chiropractic treatment on 11 March 2020 from Dr Benjamin Apap.
· His general practitioner, Dr Tahmasebi, referred him for an MRI scan, which was performed on 11 June 2020, and on 30 August 2020, Dr Tahmasebi referred him back to Dr Mehr, who he consulted on 3 September 2020. Dr Mehr recommend he undergo a SPECT/CT scan and he also prescribed the strong painkilling medication, Norflex, at the dose of 100 milligrams twice a day, which the plaintiff understood was to help ease his back pain.
· He underwent a SPECT/CT scan on 7 September 2020 and on 30 September 2020, he was reviewed by Dr Mehr, who advised him that he thought the plaintiff should undergo a facet joint block to help his lower back pain. Furthermore, Dr Mehr advised him to have physiotherapy treatment. He did not undergo the facet joint block, as the employer’s worker’s compensation insurer refused to pay for it.
· He was also assessed for a pain management program at the Precision Brain and Spinal Centre, and found to be suitable for such a program, but such program did not proceed, as the employer’s worker’s compensation insurer refused to pay for such treatment, and he could not afford to pay for it privately.
· His general practitioner, Dr Tahmasebi, referred him to the psychiatrist, Dr Ehsan Ramikia, and he underwent a consultation with Dr Ramikia by Telehealth on 24 October 2020. Dr Ramikia advised him to increase the dose of Endep to 100 milligrams a day.
· Dr Tahmasebi arranged for him to have a further MRI scan of his lumbar spine, which was performed on 1 December 2020.
· He was reviewed by Dr Mehr on 6 September 2021 and was informed there was very little he could do for the plaintiff and that he was advised to continue with exercise and avoid heavy physical activity with repetitive bending, lifting and carrying.
· In relation to the consequences from his injury, he has asserted:
§He continued to experience constant pain in his lower back, with the pain varying in intensity. At times the pain is more severe and for example it reached a point in about January and February 2021, where he was struggling to walk and leave the house. He was advised to take Vitamin D supplements, and this did reduce his pain, although it was still present and constant.
§He continues to experience a shooting pain, which goes down both legs, and it goes down to the soles of the feet, although it is not as intense as it used to be. At times, he would experience a tingling sensation in his feet.
§He continues to struggle to sit for long periods of time and, on average, can sit for about thirty minutes, depending on what he is sitting on. When standing, he has to keep moving around to relieve his discomfort.
§He has been advised by doctors to avoid activities which involve heavy or repetitive lifting and repetitive strenuous use of his back. He still has to be careful that he does not put strain on his back and, accordingly, he has to be careful with twisting and bending movements. If he does overexert his back, the pain flares up and the tingling in his legs becomes worse.
§He lives in a share-housing arrangement at the moment, but is still limited in the chores he can perform, both inside and outside the house. He continues to avoid gardening where possible, because he is worried about his back pain, and he does lighter cleaning jobs, depending on the pain in his back.
§He continues to avoid activities which he used to enjoy, such as going to the beach, swimming, bushwalking and long walks.
§He continues to take Endep and turmeric for his back pain and he understands the Endep also helps with his depression.
§He continues to suffer from depression and continues to get easily angry and frustrated, and is very concerned about his future.
§He has difficulty sleeping because of his back pain and the pain makes it difficult to get to sleep at night. The pain wakes him up at night and rarely does he get a good night’s sleep. As a result, he is tired all the time.
§He has not performed any employment since 13 March 2018.
· In relation to performing alternative employment, the plaintiff stated:
“I understand that it has been suggested that I could work as a factory process worker, packer, product assembler, sewing machinist, uber driver, product examiner, store person (order picker) and quality / production clerk. I do not believe I would be able to work in these roles for more than [a] few hours a week because I would have difficulty standing for extended periods of time. Even if I were provided with a chair to sit on, I would have trouble sitting for more than 30 minutes at a time. I would have difficulty leaning forward for extended periods or repetitively because of the pain this would cause me. I have difficulty bending over as it causes a flare up of pain. I would have difficulty working from either a standing or sitting position for extended periods of time because of the pressure and strain this would place of my back and my lower back symptoms.
I have very basic computer skills. I have very little experience with computers, nor have I undergone training in the use of computers. I would struggle to undertake training in computers because of my difficulty with sitting for extended periods.
I have no experience working in an office. My only employment in Australia has consisted of sewing work and painting. I have very limited experience with sewing in Australia. My experience is limited to one week when I once worked in a factory when I was sewing gymnastic equipment together.
I would like to find some sort of work, but I am not sure what I could do.”[21]
[21]See exhibit 1, further affidavit of the plaintiff sworn 10 February 2022, paragraphs 25-28 at PACB 27-28
The Defendant’s material
20I believe it to be helpful to have an understanding of the jobs which have been nominated by the defendant to be “suitable” for the plaintiff to return to work full time, together with the various doctors who the defendant relies on in support of such return to work in certain jobs – particularly the specialist occupational physician, Dr Joseph Slesenger, who initially examined the plaintiff on 27 May 2020[22] and on 12 July 2021.[23]
[22]See exhibit “A”, report of same date, at DACB 45
[23]See exhibit “A”, report, dated 20 July 2021, at DACB 63
21Initially, I refer to the various reports obtained by the defendant – or its insurer – pertaining to what is purported to be “suitable employment” for the plaintiff. These documents consist of the following:
(a) a report from Nabenet, headed “Transferable Skills Analysis”, dated 22 May 2018, following an assessment of the plaintiff on 18 May 2018;[24]
(b) a report from Recovre, headed “Vocational Assessment Report”, dated 24 June 2020, following an assessment of the plaintiff on 9 June 2020;[25]
(c) again, from Recovre, a document headed “Supplementary Vocational Assessment Report”, dated 18 August 2021.[26]
[24]See exhibit “A”, at page 116 DACB
[25]See exhibit “A”, at page 128 DACB
[26]See exhibit “A” at page 156 DACB
22In the document from Nabenet, it is noted that the plaintiff first ceased work on 13 March 2018 and his “pre injury hours” (excluding overtime/penalties) was thirty-eight hours per week. Furthermore, it was noted that the plaintiff had a history as a painter with the defendant and earlier worked as a sewing machinist, and a general hand manufacturing chairs and the like.
23In particular, the plaintiff reported he completed Year 10 school education in Iran and rated his English reading ability at a “basic level”, and his writing abilities to be at a “low level”, and his numeracy skills to be at an “average level”. The plaintiff reported that he possesses no computer skills and has no formal qualifications, but did hold a current driver’s licence.
24It was reported the plaintiff had an interest in obtaining a role as a driver, but would also consider returning to a role as a sewing machinist – however, his sitting tolerance may be restricted.
25Thereafter, he set out what is referred to as “future employment options”, together with the “function” requirements of the role of:
(a) Sewing machinist:
·Light demand work levels.
·Sits constantly at sewing machines.
·Occasionally walks about the work area to collect materials and other supplies.
·Stretches out and across on a regular basis to adjust and check sewing machine operations and adjust material being sewn.
·Does not usually squat, crouch or kneel.
·Twisting of the body or neck is unlikely to be required.
·Substantial contact with water or chemical substances is not required.
·Light lifting is occasionally required.
·Bends frequently over work table in order to carry out the required tasks.
·Machine sewing requires constant repetitive hand and arm movements.
·Driving is not required.
·Uses a range of hand sewing equipment or operates a commercial sewing machine.
·Uses pins, needles and a variety of other minor sewing equipment items.
·Mental skills necessary include sewing and other practical skills as well as problem-solving design and organisational skills.
(b) Tailor:
·Physical demand is light.
·Standing or sitting is constantly required at drawing boards and pattern tables.
·Walking is occasionally required about the work area to facilitate the use of various tables, pieces of equipment and materials.
·Sitting is frequently required at sewing machines and over-lockers.
·Stretching out and across is frequently required to mark out, lay out and cut out patterns from designs.
·Squatting, crouching or kneeling is required on an occasional basis.
·Twisting of the body or neck is not a significant component of this job.
·Lifting of a light physical demand is occasionally required.
·Bending is occasionally required.
·Repetitive movements of the hands and arms are frequently required.
·Driving is not required.
·There is a requirement for the use of a range of hand and electric measuring, marking and cutting tools, some may be electronic (computer assisted design software).
·Mental skills necessary include practical sewing, design, draughting, organisational, problem-solving and measuring skills.
(c) Light assembler:
·Typically, a light physical demand level.
·Stands frequently on concrete floors and walks about work areas to move equipment and carry out assembly tasks.
·Sitting is not required.
·Stretches both up and across frequently to weld, bolt, rivet or otherwise join and fit mechanical components in place, or carry out finishing tasks such as grinding.
·Occasionally squats, crouches or kneels for some assembly tasks.
·Bending is occasionally required.
·Occasionally twists the body or neck.
·Frequently handles welding and general light engineering tools and metals that may damage skin or hands.
·Frequently lifts and carries engineering materials, components and equipment about the factory, or operates overhead lifting equipment to lower or move items into the assembly position.
·Repetitive tasks are frequent especially in the use of hands and arms for holding welding, soldering, brazing, riveting or grinding equipment.
·Driving is not required.
·Uses a wide range of engineering and mechanical hand, power and machine tools.
·Mental skills include practical, metal and/or woodworking and technical skills;
(d) Quality controller:
·Typically, light physical demand level.
·Stands and walks frequently about processing areas collecting samples, measuring and determining conformity to specifications.
·Sitting is occasionally required when studying product specifications and creating reports.
·Stretching out and across may be required for inspecting some products and the carrying out of tests.
·Bending is occasionally required when checking certain products, lifting items, or inspecting production machinery and procedures.
·Squatting, crouching or kneeling movements may be required when inspecting machinery and some products.
·Twisting of the body or neck is not a component of the job.
·Substantial contact with water or skin irritants is not a component of the job.
·Lifting is occasionally required when obtaining samples or weighing products.
·Driving is not required.
·Use of computers and general office equipment when creating reports and general administrative work is occasionally required.
·Employees may also use grading labels and tags, knives, weighing scales and other testing equipment.
·Mental skills include communication, concentration, observation, analysis and decision-making;
(e) Courier:
·Light physical demand levels.
·Driving is a frequent to constant requirement.
·Frequent repetitive hand, arm and leg and foot movements are required for the operation of van or car controls.
·Uses upper limbs, feet and body to stretch down and across to operate controls and to place and retrieve items from load compartments.
·May squat, crouch or kneel occasionally when loading or unloading vehicles and checking off loads.
·Twists body or neck when reversing vehicles and for some loading and unloading activities.
·Frequently required to lift and carry.
·Bends frequently to facilitate loading and unloading.
·Sits in a vehicle operating a cab frequently and walks or runs frequently to deliver parcels/goods.
·May climb up a step to enter and to exit a van cab.
·Hand tools or equipment such as pens or electronic slates may be used to complete pick-up and delivery documentation requirements, and may be occasionally used if maintaining or cleaning the vehicle.
·Significant contact with water or skin irritants does not occur.
·Mental skills necessary include practical, organisational, record-keeping and decision-making skills.
26It was noted by the Nabenet author that the plaintiff was currently certified for no work capacity and, therefore, no further services were recommended at that time.
27In the later report from Nabenet, it was determined that current suitable options for the plaintiff would include sewing machinist, tailor, light assembler, light packer, quality controller and/or courier would be suitable employment.
28The plaintiff was first assessed by Recovre on 9 June 2020, via telephone, in order to assist in identifying relevant vocational information pertaining to the completion of the first “Vocational Assessment Report dated 24 June 2020. At that stage, Nabenet had various reports from treating doctors and medico-legal experts relied on by the defendant.
29At that assessment, the plaintiff reported that he had the following physical tolerances:
· Sitting, twenty to thirty minutes
· Standing – less than two hours
· Walking – one to two hours
· Driving – he has his own car and can drive up to an hour
· Lifting and carrying – restricted.
30In the report dated 24 June 2020, it is asserted that the plaintiff would be assisted in a transition to a more sedentary role if he had training in basic computer applications and, indeed, there were details of various courses which could be attended – for a fee – to enable that to be done.
31Ultimately, the authors of the report dated 24 June 2020 – Ms Robyn Willett, employment placement consultant, and Ms Janette Ash, occupational therapist – identified the following job options, said to be based upon the plaintiff’s educational achievements, transferable skills and work experiences:
(a) product assembler;
(b) quality/production clerk;
(c) Uber driver.
32Furthermore, in such report, the authors have set out the appropriate gross weekly earnings of such jobs. I refer to the following:
(a) factory process workers ꟷ $758 (selected roles);
(b) packers (general) ꟷ $879 (selected roles);
(c) product assemblers ꟷ $987 (selected roles);
(d) sewing machinists ꟷ $1,038 (selected roles);
(e) Uber driver (specific wage information not available).
33In a supplementary vocational assessment report dated 18 August 2021, various jobs were identified which are said to be in the geographical distance of approximate travel times from where the plaintiff was residing. Those jobs were described as:
(a) product assembler;
(b) quality/production clerk;
(c) order/online picker;
(d) tester/assembler.
34Furthermore, the authors of that report – again, Ms Willett and Ms Ash ꟷ also set out the average gross weekly wage for these jobs, which was taken from Jobmarkets.com.au reports, relevant for the 2020/2021 period. I set out the following roles and gross earnings:
(a) factory process workers – $843 gross per week;
(b) packers (general) – $1,001 gross per week;
(c) product assemblers – $895 gross per week;
(d) product examiner – $1,373 gross per week;
(e) storeperson – $1,100 gross per week.
35I now refer to the medical evidence relied on by the defendant:
(a) the agent of the defendant arranged for the plaintiff to be examined by the consultant psychiatrist, Dr Richard Prytula, on 15 August 2019;[27]
(b) the agent of the defendant arranged for the plaintiff to be examined by the consultant rheumatologist, Dr Roy Karna, on 15 August 2019;[28]
(c) the agent for the defendant arranged for the plaintiff to be examined by the occupational medicine consultant, Dr Sam Soliman, on 3 October 2018;[29]
(d) the agent of the defendant arranged for the plaintiff to be examined by the occupational physician, Dr Michael Lucas, on 15 February 2019;[30]
(e) the solicitors for the defendant arranged for the neurosurgeon, Professor Gavin Davis, to give an opinion “on the papers”.[31]
[27]See exhibit “A”, report of same date, at page 3 DACB
[28]See exhibit “A”, report of same date, at page 17 DACB
[29]See exhibit “A”, report of same date, at page 21 DACB
[30]See exhibit “A”, report dated 25 February 2019, at page 30 DACB
[31]See exhibit “A”, report of Professor Davis, dated 14 May 2022, at page 91 DACB
36In his report, the psychiatrist, Dr Prytula, stated that the plaintiff appeared “generally pleasant and co-operative” and “he gave a clear and direct history”.[32] Ultimately, Dr Prytula was of the opinion the plaintiff had developed a mild Adjustment Disorder with Mixed Anxious and Depressed Mood, but this had now almost resolved.
[32]DACB 7
37The rheumatologist, Dr Karna, ultimately expressed the view that the plaintiff had residual symptoms and dysfunction as a result of a lumbar disc injury, with variable referred pain to the legs, but no evidence of radiculopathy. Dr Karna saw the plaintiff for the purposes of making an “impairment assessment” and did not express any opinion as to capacity for employment.
38The occupational medical and medicine consultant, Dr Soliman, was of the opinion that the plaintiff had a “simple mechanical back pain” and, in Dr Soliman’s view, the plaintiff had the capacity to return to work. In his opinion, he was fit to gradually return to work doing suitable duties, but suggested that he start with four hours a day, five days a week, then gradually increased over the following six weeks. In particular, Dr Soliman noted he needed to avoid bending, stooping and back reaching, and then progress to normal duties over the following two to three months.
39The occupational physician, Dr Lucas, only had reports available from Dr Soliman (an occupational physician retained by the defendant) and reports from one of the treating specialists, Dr Richard Sullivan, dated 16 August 2018 and 5 September 2018. Dr Lucas obtained a history, made an examination, and had available some of the radiology undertaken by the plaintiff. Various questions were posed to him by the insurer, to which he gave a variety of answers. In particular, I refer to the following:
“1. What injury or medical condition does the worker have? (Include your clinical diagnosis where you can provide one. If the worker’s injury or medical condition has resolved please provide your clinical opinion on what injury or medical condition the worker’s history and examination was consistent with.)
Mr Nouroozi presents a history considered consistent with a diagnosis of mechanical low back pain.
Diagnostic studies indicated L4/5 disc pathology of potential incident significance - Whilst a longstanding component to indicated findings has not been excluded, an acute/incident related contributory component to indicated prominent left paracentral disc protrusion may reasonably be supported in the absence of prior lower limb symptom concerns. EMC studies are considered supportive of a left LS nerve root compromise component to lower limb symptom concerns.
Mr Nouroozi reports significant improvement in his lower limb symptom concerns, also considered consistent with an acute contributory component to nerve root compromise considerations.
2. In your clinical opinion, what has caused the worker’s injury or medical condition? ff there are multiple causes please list all of these. Please give specific consideration to whether the worker’s employment is still a cause.
Reported factors associated with symptom awareness have been outlined.
Objective clinical indications of significant current neural compromise are considered limited. Electro-diagnostic evidence of left L5 root irritation in November 2018 is noted. Lower limb symptom improvement of significance is indicated.
Current lower back discomfort concerns are viewed as dominantly attributable to current mechanical and postural factors in association With imaging indicated degenerative spine changes.
At approaching 12 months post incident event, employment contributory components to Mr Nouroozi’s current symptom concerns may reasonably be considered as limited.
3. In your clinical opinion, is the worker’s current incapacity still materially contributed to by the claimed injury? If so, what do you consider are the timeframes for resolution of the incapacity for work.?
In essence, no. Whilst acknowledging indicated residual radiculopathy concerns, objective clinical indications of significant current neural compromise are limited.
Confidently attributing current lower back discomfort concerns to the events of 13.03.2018 is considered challenging. Current lower back discomfort concerns may reasonably be considered as attributable to current mechanical and postural factors in association with imaging indicated degenerative spine changes.
4. In your clinical opinion can the worker return to work in their pre-injury duties and hours? If so, when can this start?
In my opinion, there is no contra-indication to Mr Nouroozi maintaining a usual presence either at home or in a workplace. Based on current review, encouragement towards activity normalisation may reasonably be supported.
I would not restrict Mr Nouroozi from undertaking his usual home or work activity participations maintaining appropriate back care awareness, manual handling limitation awareness and a degree of cardiovascular fitness commensurate with his desire and required activity participations.
In my opinion, Mr Nouroozi may reasonably be considered as capable of returning to his usual work participations, graduating heavier and more active components in keeping with development of suitable activity tolerances.
Mr Nouroozi has indicated limited motivation to return to his former work role. In the absence of suitable motivation, achieving a favourable return to work outcome may be challenging.
In my opinion, alternate RTW goals may reasonably be considered.
5. If in your clinical opinion the worker cannot return to their pre-injury duties and hours does the worker have a current work capacity (Please answer yes or no. A definition of current work capacity is below.)?
‘Current work capacity’ is a term used in Victorian workers’ compensation legislation. It is defined as ‘a present inability arising from an Injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.’
‘Suitable employment’ is also defined. It means ‘work for which the worker is currently suited (whether or not that work is available) having regard to the following:
•the nature of the worker’s incapacity and pre-injury employment
• the worker’s age, education, skills and work experience
• the worker’s place of residence
• the details given in medical information including the medical certificate supplied by the worker
• the worker’s return to work plan, If any, and
• if any occupational or rehabilitation services are being provided to or for the worker.’
Yes. In my opinion, Mr Nouroozi may reasonably be considered as having a current work capacity.
I would not restrict Mr Nouroozi from currently maintaining a usual work or home presence, maintaining appropriate back care awareness, manual handling limitation awareness and a degree of cardiovascular fitness commensurate with his desire and required activity participations.
6.Do you agree with the suitable employment recommendations made in the attached Transferrable Skills Analysis report? The employment options are:
• Sewing Machinist
• Tailor
• Light assembler
• Light packer
• Quality controller• Courier
If you do not agree with the recommendations, please explain why and provide your recommendations.
Yes. Indicated alternate work options appear reasonable.
Mr Nouroozi has indicated limited motivation to return to his former work role. In the absence of suitable motivation, achieving a favourable return to work outcome may be challenging.
I would recommend encouraging Mr Nouroozi to maintain appropriate back care awareness, manual handling limitation awareness and a degree of cardiovascular fitness commensurate with his desire and required activity participations.
7.If the worker can return to work in modified duties and/or hours, or alternative pre-injury duties and/or hours, what is/are your recommended (sic):
• duties (can be by reference to particular duties restrictions),
• hours,
• length of time for the duties/hours to remain in place,
• and review timeframe?
When providing your opinion please consider and detail the following:
• hours/breaks
• sitting/standing restrictions bending/lifting restrictions
• pushing/pulling restrictions
• any restrictions on use of any particular parts of the body
As previously discussed. In my opinion, there is no contra-indication to Mr Nouroozi maintaining a usual presence either at home or in a workplace. Based on current review, encouragement towards activity normalisation may reasonably be supported.
I would not restrict Mr Nouroozi from undertaking his usual home or indicated work activity participations maintaining appropriate back care awareness, manual handling limitation awareness and a degree of cardiovascular fitness commensurate with his desire and required activity participations.
In my opinion, in the presence of suitable motivation, Mr Nouroozi may reasonably be considered as capable of participating in indicated work options, graduating heavier and more active components in keeping with development of suitable activity tolerances.
8. When can the worker return to work whether it is in their pre-injury duties, modified pre-injury duties or alternative duties? (Please provide a date or a time frame.)
Now.
9. …
10. …
11. …
12. …
13. …
14. …
15. … .”[33]
(My emphasis.)
[33]DACB 34-38
40The specialist occupational physician, Dr Slesenger, initially examined the plaintiff on 27 May 2020 with the assistance of the interpreter. He had available to him earlier reports from both treating doctors and medico-legal specialists, various radiology and rehabilitation reports.
41In particular, Dr Slesenger made an examination, noting that the plaintiff “interacted well” and had a “reasonable” affect. In particular, Dr Slesenger made the following observations:
· The plaintiff sat during the course of the narrative for thirty minutes without obvious discomfort.
· He was able to dress and undress.
· He was able to climb on and off the couch.
· He was able to climb in and out of the chair.
· He was able to climb onto his tiptoes.
· He was able to climb onto his heels.
· He was able to perform a 1/3 squat.
· He was able to mobilise from seated to supine and from supine to a prone position
Gait
· He walked with a normal gait.
Lumbar spine
· Inspection revealed no trophic changes and no scarring.
· Palpation: There was no tenderness.
· Range of movements:
ꟷ flexion: 90 degrees
ꟷ extension: 20 degrees
ꟷ right rotation: 70 degrees
ꟷ left rotation: 70 degrees
ꟷ right lateral tilting: 20 degrees
ꟷ left lateral tilting: 20 degrees.
· Tests:
ꟷ axial loading: positive
ꟷ truncal rotation: negative.
42The solicitors for the defendant posed various questions to which Dr Slesenger gave responses. I refer to the following:
“1.Diagnosis/description of present condition and your findings on examination;
· Lumbar spine:
o Mechanical injury to the lumbar spine.
o Aggravation of degenerative disease of the lumbar spine.
o Chronic lower back pain with radiating features, but no confirmed evidence of radiculopathy.
· Psychological impairment, although this is outside my area of expertise.
2. Has the … [plaintiff’s] employment with the employer been a significant contributing factor to the condition or its recurrence, aggravation, acceleration, exacerbation or deterioration? In considering whether employment has been a significant contributing factor, would you please take into account the following:
a) the duration of the … [plaintiff’s] current employment;
b) the nature of the work performed;
c) the particular tasks of the employment;
d) the probable development of the injury occurring if that employment had not taken place;
e) the existence of any hereditary risks;
f) the life-style of the [plaintiff]; and
g) the activities of the [plaintiff] outside the workplace.
Taking into consideration the pre-injury job demands, in particular the manual handling, the postural demands, the repetitive nature of these tasks and the length of … [the plaintiff’s] employment, I am satisfied that the job tasks in general are causal with regard to the development of acute lower back pain during the course of his employment. I note evidence of degenerative disease of the lumbar spine; however, I also note that prior to the injury, he was asymptomatic.
He denied a history of sports or hobbies prior to the injury.
3.If you consider employment was a significant contributing factor to the … [plaintiff’s] condition or its recurrence, aggravation, acceleration, exacerbation or deterioration as at the date of injury, do you consider the recurrence, aggravation, acceleration, exacerbation or deterioration has now ceased?
I am of the opinion that … [the plaintiff] suffered an aggravation of pre-existing degenerative disease of the lumbar spine; the aggravation persists.
4. Do you believe the … [plaintiff’s] condition/incapacity remains materially contributed to by the alleged injury suffered with the employer?
I am satisfied that [the plaintiff’s] current condition is materially contributed to by the injury.
5. Details of any employment, volunteering and/or study the … [plaintiff] has undergone since ceasing with the employer.
Please ascertain his motivation to return to work and whether he has received any government benefits, such as Centrelink, Newstart or a disability pension.
Subsequent to the injury, … [the plaintiff] has not returned to work. He is not engaging in volunteer activities. He is not engaging in any retraining. He is in receipt of Centrelink benefits.
6.Do you believe the … [plaintiff] is fit for his pre-injury duties, even if with another employer?
I am of the opinion that … [the plaintiff] cannot return to unrestricted pre-injury duties and in support of this, I note the manual handling and the postural demands associated with his pre-injury role.
7.If not, do you believe he has a current work capacity? If so, please detail what restrictions, including duties, weights and hours, you would recommend and how many hours per week you believe the … [plaintiff] could work;
I am of the opinion that [the plaintiff] retains capacity for work with restrictions, namely:
· No push, pull, carry or lift over 5 kg on a repetitive basis and 7.5 kg on an occasional basis.
· Avoid prolonged static postures.
· Avoid repetitive bending or twisting.
· Avoid exposure to whole body vibration.
I recommend that he commences work 4 hours a day, 4 days per week, increasing to pre-injury hours over 8 weeks.
8.Do you consider the vocational options, as identified by Nabenet in their reports of 22 May 2018 and 19 March 2019 represent suitable employment for the … [plaintiff] from a physical perspective? If so, please detail what restrictions, including duties, weights and hours, you would recommend and how many hours per week you believe the [plaintiff] could work;
I have reviewed the vocational assessment report, noting recommendations for … [the plaintiff] to return to work in the following role.
·Sewing Machinist : I advise a cautious approach to him returning to work in this role as the job demands require a light manual handling capacity (which could require lifting up to 9 kg). In my experience, the workers are often required to manoeuvre heavy items and I recommend a job specific worksite assessment.
·Tailor : I am more optimistic with regard to his capacity to return to work as a Tailor, performing duties with the restrictions outlined above. However, once again, I note the job demands requiring a light lift limit and I recommend a job specific worksite assessment.
·Light Assembler : I advise a cautious approach to him returning to work in this role as there are tasks underneath this job title that could lie outside his capacity limits.
·Light Packer : I advise against him returning to work in this role as the job demands would lie outside his capacity limits.
•Quality Controller : I am generally optimistic that he could return to work in this role. However, I note the light physical demands and I recommend a worksite visit to ensure that the job demands lie within his capacity limits.
· Courier : I advise against him returning to work in this role as, in my experience, the job demands will require manual handling outside his current capacity limits.
9.Details of all treatment, including medication. Do you consider this reasonable and/or would you recommend any alternate treatment?
Currently, Mr Nouroozi is in receipt of the following treatment:
i.GP: he sees his GP for review and medication
ii.Medication: he is currently taking:
· amitriptyline 150 mg at night.
· Panadol.
· Turmeric.
iii.Chiropractor: he has seen a chiropractor on 3 occasions and is due to see him shortly.
iv.Psychologist: he has seen a psychologist in the past.
v. Physiotherapy: he ceased physiotherapy treatment.
vi.Injection: he has undergone an injection on one occasion.
vii.Prof Bittar: he saw Prof Bittar who advised against surgery.
viii.Mr Akil: he saw Mr Akil who advised against surgery.
ix.Pain management program: he has been recommended to engage in a pain management program; however, funding has not been forthcoming.
x.Self-managed exercise program: he continues to perform exercises as demonstrated by his physiotherapist infrequently.”[34]
(My emphasis.)
[34]See exhibit “A”, report of Dr Slesenger, dated 27 May 2020 pages 54-57 DACB
43Subsequently, Dr Slesenger was requested to give a supplementary report based on him now being provided with the Vocational Assessment Report by Recovre dated 24 June 2022 for which reference has already been made. In particular, such report refers to jobs as “Product assembler in Laverton North”, a “Quality/Production Clerk in Broadmeadows” and an “Uber Driver” to be suitable employment. In response to various questions posed by the solicitors for the defendant, Dr Slesenger responded.
“1.Do you consider the vocational options as identified by Recovre in their report of 24 June 2020 represent suitable employment for the [plaintiff] from a physical perspective?
I have been provided with a vocational assessment report, noting recommendations for … [the plaintiff] to return to work in the following roles:
● Product Assembler in Laverton North : I note the manual handling and the postural requirements and I am of the opinion that these fall within his capacity limits. I recommend that he returns to work with the restrictions outlined above and I also recommend that he rotates through the various workstations in order to avoid prolonged static postures.
● Quality/Production Clerk in Broadmeadows : I am of the opinion that he retains capacity to work performing these duties with the restrictions outlined above. I recommend that he rotates through the various workstations to avoid prolonged static postures and he will require retraining to utilise the computerised equipment.
● Uber Driver : in my experience, the job demands may require him to assist customers with their luggage (although this is likely to be an infrequent occurrence and I note the job description also indicates that this is unlikely). I also note his driving limitations and taking the evidence as a whole, I advise against him returning to work in this role.
2. If so, please detail what restrictions, including duties, weights and hours, you would recommend and how many hours per week you believe the [plaintiff] could work;
As noted above, I am of the opinion that … [the plaintiff] could return to work with the restrictions outlined above, initially commencing work 4 hours a day, 4 days a week, increasing to pre-injury hours over the course of 8 weeks.”[35]
[35]See exhibit “A”, supplementary report of Dr Slesenger dated 14 July 2020, at page 61-62 DACB
44Dr Slesenger re-examined the plaintiff on 12 July 2021 and again, had available various reports from treating doctors and medico-legal specialists, together with copies of the radiological reports.
45In particular, Dr Slesenger performed a further examination of the plaintiff and noted, amongst other things, the following:
“Observations:
· He was able to climb in and out of the chair.
· He was able to climb on and off the couch.
· He was able to perform a 1/3 squat.
· He was able to stand on his tiptoes.
· He was able to stand on his heels.
· He was able to sit with his legs extended over the edge of the couch.
Lumbosacral spine:
·Inspection: revealed no trophic changes, no scarring.
·Palpation: there was mild tenderness over the lower lumbosacral junction and the paraspinal musculature.
·Range of movements:
oFlexion: 90 degrees.
oExtension: 20 degrees.
oRight rotation: 70 degrees.
oLeft rotation: 70 degrees.
oRight lateral tilting: 20 degrees.
oLeft lateral tilting: 20 degrees.
Hands:
·Inspection: there was evidence of extensive callosities on both hands, more noticeable on the right. There was no evidence of ingrained dirt.”[36]
[36]See exhibit “A”, report of Dr Slesenger, dated 20 July 2021, pages 71-72 DACB
46Again, questions were posed by the solicitors for the defendant. In this respect, I refer to the following:
“1. Diagnosis/description of present condition, your findings upon examination and any noted changes since your last examination.
·Lumbar spine:
o Mechanical injury to the lumbar spine.
o Aggravation of degenerative disease of the lumbar spine.
o Chronic lower back pain with radiating features, but no confirmed evidence of radiculopathy.
·Psychological impairment although this is outside my area of expertise.
2.The [plaintiff’s] history as to his usual daily activities and any noted restrictions.
… [The plaintiff] spends his days watching TV, visiting friends or playing games.
3.If you consider employment was a significant contributing factor to the [plaintiff’s] condition or its recurrence, aggravation, acceleration, exacerbation or deterioration as at the date of injury, do you consider the recurrence, aggravation, acceleration, exacerbation or deterioration has now ceased?
I am of the opinion that … [the plaintiff’s] employment was a significant contributing factor to an aggravation of pre-existing degenerative disease of the lumbar spine and I am of the opinion that the aggravation has in part resolved.
In support of this, I note evidence of manual tasks currently being performed (which contrasts with his daily activities outlined at evaluation).
4.Do you believe the … [plaintiff’s] condition/incapacity remains materially contributed to by the claimed injury suffered with the employer?
I am satisfied that [the plaintiff’s] current condition is materially contributed to by the injury sustained during the course of his employment although this is now a limited contributing factor.
In support of this I note:
· The reassuring nature of the most recent imaging findings.
· His well-preserved range of lumbosacral spinal movements.
· Minimal tenderness around the lumbosacral spine.
· Evidence of manual tasks currently being performed.
5.Details of any employment, volunteering and/or study the [plaintiff] has undergone since ceasing with the employer. Please ascertain his motivation to return to work.
Currently, … [the plaintiff] is not engaging in employment, not volunteering and has not undergone retraining.
He does not appear to be motivated to return to work although I note evidence of manual tasks currently being performed (which contradicts the statements made at evaluation).
6.Do you believe the [plaintiff] is fit for his pre-injury duties, even if with another employer? If not, do you believe he has a current work capacity? If so, please detail what restrictions, including duties, weights and hours, you would recommend and how many hours per week you believe the[plaintiff] could work.
I am of the opinion that [the plaintiff] cannot return to unrestricted pre-injury duties with his pre-injury employer or another employer as these tasks lie outside his capacity limits.
I am of the opinion he retains capacity for work with restrictions, namely:
·No push, pull, carry or lift over 15 kg on an occasional basis and 7.5 kg on a repetitive basis.
·Avoid prolonged static postures.
·Avoid exposure to whole body vibration.
I recommend that he commences work 4 hours a day, 4 days a week, increasing to pre-injury hours over 6-8 weeks.
7.If you consider the … [plaintiff] does not have a current work capacity, is it likely to continue indefinitely?
Not applicable.
8.Do you consider the vocational options, as identified by Recovre in their report of 24 June 2020, represent suitable employment for the [plaintiff] from a physical perspective; If so, please detail what restrictions, including duties, weights and hours, you would recommend and how many hours per week you believe the [plaintiff] could work.
I have reviewed the transferable skills analysis report by Nabenet dated 22 May 2018, noting recommendations for … [the plaintiff] to return to work in the following roles:
·Sewing Machinist: I am of the opinion that he could return to work in this role with the restrictions outlined above.
·Tailor: I am of the opinion that he could return to work in this role with the restrictions outlined above.
·Light Assembler: I am of the opinion that he could return to work in this role with the restrictions outlined above.
·Light Packer: I am of the opinion that he could return to work in this role with the restrictions outlined above.
·Quality Controller: I am of the opinion that he could return to work in this role with the restrictions outlined above.
·Courier: I would recommend that a works site visit is performed to address job specific work demands, as there are tasks under this job title that could lie outside his capacity limits.
9.Details of all treatment, including medication. Do you consider this reasonable and/or would you recommend any alternate treatment?
… [The plaintiff] advised the following treatment:
i.GP: he sees his GP for certification and medication purposes.
ii.Medication: he is currently taking:
· Endep 25 mg at night.
· Panadol occasionally.
· Turmeric.
iii.Hot water bottle: he is using a hot water bottle.
iv.Chiropractor: he has not seen a chiropractor.
v.Psychologist: he has not seen a psychologist.
vi.Physiotherapist: he has not seen a physiotherapist.
vii.Dr Ali Kian Mehr: he has been seen Dr Ali Kian Mehr who recommended a nerve block; however, funding has not been forthcoming.
viii.Prof Bittar: he has not returned to Prof Bittar.
ix.Mr Akil: he has not returned to Mr Akil.
x.Pain management program: he has not engaged in a pain management program.
xi.Self-managed exercise program: he continues to engage in a self-managed exercise program.
I advise against interventional treatment. I am of the opinion that he could continue with a self-managed exercise program. He will also require further review under the care of his GP. I advise against further physical therapy.”[37]
(sic)
(My emphasis.)
[37]See exhibit “A”, report of Dr Slesenger dated 20 July 2021, pages 75-77 DCB
47Dr Slesenger was asked by the solicitor for the defendant to provide a supplementary report dealing with the further vocational assessment report from Recovre dated 18 August 2021.
48In a supplementary vocational assessment report dated 18 August 2021, various jobs were identified which are said to be in the geographical distance of approximate travel times from where the plaintiff was residing. Those jobs were described as:
(a) product assembler located at Laverton North;
(b) quality/production clerk in Broadmeadows;
(c) order/online picker in Keilor Park;
(d) tester/assembler in Laverton North.
49Furthermore, the authors of that report – again, Ms Willett and Ms Ash ꟷ also set out the average gross weekly wage for these jobs, which was taken from Jobmarkets.com.au reports, relevant for the 2020/2021 period. I set out the following roles and gross earnings:
(a) factory process workers – $843 gross per week;
(b) packers (general) – $1,001 gross per week;
(c) product assemblers – $895 gross per week;
(d) product examiner – $1,373 gross per week;
(e) storeperson – $1,100 gross per week.
50Again, in response to various questions posed by the solicitors for the defendant, Dr Slesenger responded as follows:
“1. Do you consider the vocational options, as identified by Recovre in their report of 18 August 2021, represent suitable employment for the … [plaintiff] from a physical perspective?
I have been provided with a vocational assessment report dated 18 August 2021, noting recommendations for … [the plaintiff] to return to work performing the following duties:
●Product Assembler – Laverton North: I note the following job demands:
o Sit: opportunities to sit are available at all workstations. Workstations 1 and 4 require sitting for intervals up to 30 minutes before an opportunity to stand and stretch arises (stretch breaks are encouraged by this employer).
o Stand: standing is available at all workstations for at least brief intervals of around five minutes per 30 minutes if desired. Workstation five is currently set up for standing work and involves standing/walking for intervals in the vicinity of 30 minutes. It is feasible to use an elevated office chair for seated work in this role if desired.
o Walk: not typically required beyond movements within the immediate work area.
o Squat/bend/kneel: not typically required.
o Climb stairs/ladders: not required.
o Overhead reach: reaching to around 400mm above bench height is required in some workstations. This typically places the hand at or around shoulder height, however the elbow is bent meaning that there is limited shoulder movement beyond 45 degrees during these lifting manoeuvres.
o Forward reach: forward reaching within around 500mm of the body is required constantly at and around bench height and below 400mm from the benchtop.
o Carrying: not typically required. The line is stocked by other workers meaning that workers handle items in their immediate workstation area.
o Lift: one workstation requires handling of boxes weighing in the vicinity of 3kg at bench height on an occasional basis. All other handling involves weights of less than 200gm on a constant basis.
o Push/Pull: not typically required. Workers in workstation one may push a small four wheel trolley around 1m with less than 5kg (approx) force when positioning it near the workstation on an occasional basis.
o Fine manipulation: bilateral fine pinch grip is required constantly but involves very light forces (sufficient to hold small screws for example). Gross light grasp sufficient to handle components weighing 200-300gm on a constant basis.
o Driving: not required.
o Education and training: there are no qualification or education requirements. Language – there are no requirements for workers to possess spoken English. Tasks can be demonstrated with no language requirements and testing tasks are automated with pictorial results displays (smiley green face for pass; red angry face for fail).
I am of the opinion that he could return to work in this role as these tasks fall within the restrictions outlined above. I recommend a graduated return to work plan, commencing work 4 hours a day, 4 days a week, increasing to pre-injury hours over 6 weeks. I anticipate that he would require retraining before return to work in this role.
● Quality/Production Clerk – Broadmeadows: I note the following job demands:
o Sit/stand: opportunities to sit are available when completing office based tasks. In practice, workers have some freedom over the structure of their day and can elect to perform shorter, but more frequent periods of administration across the work day, or can perform longer, but less frequent intervals at their discretion. Workstations are currently set up for seated work however the option to install a sit/stand desk exists if desired or required
o Walk: walking is required when inspecting the lines. In practice, walking is required frequently across the work day and is performed on level concrete surfaces. Safety boots are required at all times. Distances covered can rise to around 200m per circuit.
o Squat/bend/kneel: not typically required.
o Climb stairs: a single flight of stairs is present to access upper storey offices however these are not routinely accessed by quality clerks. The bulk of activities are performed at ground level.
o Climb ladder: not required.
o Overhead reach: not typically required, tasks are performed at or below 900mm height
o Forward reach: incidental forward reaching within around 500mm of the body may arise, particularly when inspecting the lines however reaching demands are momentary and can be performed with either arm at the discretion of the worker.
o Carrying: workers carry a clipboard when inspecting the lines however this has negligible weight. Workers may carry a bag of product from the production areas to the office area. Distance can be up to 100m however weights are less than 3kg at all times, with a more typical carry weight of less than 700gm
o Lift: there are no lifting requirements associated with the role beyond handling of binders and the like within the office area. Binder weight is unlikely to exceed 2kg.
o Push/Pull: not typically required.
o Fine manipulation: bilateral finger use is typical when performing data entry; however, these tasks are very elementary and could be performed using one hand if required.
o Driving: not required.
o Education and training: there are no formal education requirements associated with this role. Workers should have an eye for detail and possess basic email and Excel data entry skills. Knowledge of food production standards is favourable, but not essential as tasks are taught on the job. This role is an entry level administration role with on the job training provided. Basic literacy and spoken English are required for this role
I am of the opinion that he could return to work in this role as these tasks fall within the restrictions outlined above. I recommend a graduated return to work plan, commencing work 4 hours a day, 4 days a week, increasing to pre-injury hours over 6 weeks. I anticipate that he would require retraining before return to work in this role.
● Order Picker - Keilor Park: I note the following job demands:
o Sit/stand: required when performing desk based tasks for intervals of around 10-15 minutes before breaking for 15-20 minutes to perform walking type duties. Workstations are currently set up for standing work; however, it was stated that the option to install an elevated chair exists and this would allow for seated work if desired.
o Walk: walking is required on level concrete surfaces when picking for intervals of around 15-20 minutes across the work day. In practice, workers can alternate between walking (15-20 minutes) and sitting (10-15 minutes) across the work day.
o Squat/Bend/Kneel: not required for desk based tasks.
o Climb stairs: not typically required. There are office areas located on a second floor however these areas are not routinely accessed by pickers.
o Climb ladder: step ladders are provided to access upper shelves in picking areas if desired/required. In practice, any ladder use would be occasional or less and would involve 1-2 steps only.
o Overhead reach: unilateral (either arm) reaching may be required to 1850mm if picking from upper shelves and not using the provided step ladders. Reaching of this nature is likely to be occasional or less across the work day as the bulk of tasks are performed between 900 – around 1300mm heights.
o Forward reach: bilateral forward reaching is required when picking but can be limited to around 300mm distance from the body if required.
o Carrying: not typically required
o Lift: not typically required beyond handling of stock items and packed despatch bags weighing less than 3kg at all times, and more typically involving weights around 300gm.
o Push/Pull: workers push a four wheel plastic trolley across level concrete following on a constant basis when picking. Intervals of picking are in the vicinity of 15-20 minutes across the work day. Push forces for laden trolleys are minimal. In practice workers were observed to manoeuvre laden trollies using only 1-2 fingers.
o Fine manipulation: fine gross grasp and pinch grip is required to handle stock items. It is feasible to rely more heavily upon one arm if required as items handled are light weight.
o Education and training: there are no formal education requirements to perform this role. Basic spoken English is desired but not essential to the role. Literacy requirements are limited to recognition of letters and numbers when picking. Computer skill requirements are limited to use of an RF scanner only. There are no requirements for keyboard use, email or other computer based functions.
I am of the opinion that he could return to work in this role as these tasks fall within the restrictions outlined above. I recommend a graduated return to work plan, commencing work 4 hours a day, 4 days a week, increasing to pre-injury hours over 6 weeks. I anticipate that he would require retraining before return to work in this role.
● Tester/Assembler- Laverton North: I note the following job demands:
o Sit: the option to sit is available for much of the work day. Workers tend to move between workstations at least once per hour and thus there is typically option to sit for at least 30 minutes per hour on average.
o Stand: standing and walking are required when performing tasks one and three. As noted, workers regularly rotate meaning that workers are not typically required to stand/walk for intervals in excess of 15-30 minutes before an opportunity to sit arises. All walking is conducted indoors on level concrete flooring.
o Squat/bend/kneel: not typically required. If a worker is particularly tall they may be required to shallow bend (to access items at 750mm height) during task one however this tasks occupies only around 15 minutes per hour. All other tasks are completed on benchtops.
o Climb stairs/ladders: not typically required
o Overhead reach: current set up requires workers to reach to 1420mm height 24 times per hour and 1200mm height 24 times per hour using either arm.
o Forward reach: forward reaching within 600mm of the body is required during task one on a repetitive basis for 15 minutes per hour. Benchtop assembly tasks involve forward reaching within 400mm of the body and task three does not involve significant forward reaching.
o Carrying: not typically required.
o Lift: when performing benchtop tasks, workers lift meters weighing 2.2kg from bench to bench height at a rate of around one per minute. Workers performing task three lift meters weighing 2.2kg below 1200mm height around three times per five minute interval.
HIS HONOUR:
Q:“Can I just ask you this, Mr Nouroozi, it’s important I understand this, the film shows you, as I think you’ve accepted, bending down and bending under your car?---
A:Yeah.
Q:And of course, we don’t know what’s going through your mind or your body but it did look as though you could do it quite easily; what do you say about that?---
A:Sorry, I don’t understand exactly. You know, even 2018, once I’ve got injury, I was bending that I show you in the physio - - -
Q:Just before?---
A:Yes.
Q: Yes, I understand that?---
A:Physio prompt.
Q:I think you’re being asked at this time about the episode of 12 July 2021, on that day it would appear on the evidence, as I understand it, that you saw Dr Slesenger on that day, just by probably coincidence and here you told him that you had moderate to severe back pain but on the same day, you seem to be able to bend down reasonably freely, that’s what I’m - - -?---
A:Now I understand.
Q:You don’t look fearful, you don’t look to have difficulty doing that type of thing?---
A:The bending was about the standing, not sitting, you know, because sitting is different with the bending when you are standing. Even now, if I want to stand and bend, I am scared I will put my hand on the knees, so don’t damage it because I see it gets worse but sitting is different. I was just sitting down.
Q:You seemed to be, as I think you agreed, in a position where resting on your knees and bending forward and you put your head under, or you looked under the car for the GPS, is that right?---
A:Yeah, I was looking for GPS because I see people is all the time following me.
Q:I understand what your reasons were but I’m just really asking you, you seemed to be doing what you were doing reasonably easily. As I said, I wasn’t in your skin or in your mind?---
A:Yeah.
Q:But looking at the film, it looked like it was pretty easy; what do you say about that?---
A:I don’t know what should I - how should I explain it?
Q:You tell me what you think, that’s all I’m asking you. I want you to make your comments about what I’ve just said. Do you remember that episode?---
A:Yeah, yeah, yeah, I remember I was - - -
Q:No, I mean do you remember the actual day? Not the film now, do you remember the actual day of that incident?---
A:Yes, yes, I remember.
Q:What do you say it felt like when you were doing it?---
A:As I said, the pain is always in my back but I cannot (interpreted) I cannot pretend. (Direct) Pretend like, oh, killing me, you know. I have pain, pain is inside, but if like, now you see I sometimes stand up. If I go just oh, eeh, that’s just pretending, but the pain is inside.”[111]
(sic)
[111]T44, L12 ꟷ T46, L12
137I should add that, during the course of his explanation, the plaintiff demonstrated the movement by getting down on his knees and hands, similar to a prayer position.
138In answer to various questions from the Court, the plaintiff described sexual intercourse causing aggravation of his back pain in the past and, indeed, in answer to whether he continues to engage in sexual activity now, he responded:
A:“Yes, honestly I am doing this.
Q: Sorry?---
A:Yes.
Q:I understand?---
A:Sorry, but it’s part of life, no-one can escape it, until end of our life.”[112]
[112]T48, L7-10
Analysis of the evidence
139Both parties made written submissions in support of their respective positions.
140As I have already recorded, it is for the plaintiff to prove, as a matter of probability, the following matters, in order to obtain leave to commence a proceeding claiming pecuniary loss damages. He has to establish that:
(a) any loss of earning capacity consequences, when judged by comparison with other cases in the range of possible impairments or loss of body function, are fairly described as being “at least very considerable”;
(b) that at the date of hearing of an application under s335(2)(d) of the Act, the plaintiff has a loss of earning capacity of 40 per cent or more, measured, for present purposes, as set out in paragraph (f) of s325(2) of the Act; and
(c) the plaintiff will, after the date of the decision 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.
141I set out paragraph (f) of s325(2) of the Act, which states:
“(f) for the purposes of paragraph (e)(i), a worker’s loss of earning capacity is to be measured by comparing—
(i) the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii) the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred.”
142Section 325(2)(a) of the Act states that the phrase “income from personal exertion” has the same meaning as in s6(2) of the Transport Accident Act 1986. Section 6(2) of the Transport Accident Act 1986 states:
“income from personal exertion in relation to a person means—
(a) the amount that is the income of that person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered; and
(b) the proceeds of any business carried on by that person either alone or in partnership with any other person; and
(c) any amount received as bounty or subsidy in carrying on a business; and
(d) the income from any property where that income forms part of the emoluments of any office or employment of profit held by that person; and
(e) any profit arising from the sale by that person of any property acquired by the person for the purpose of profit-making by sale or from the carrying on or carrying out of any profit-making undertaking or scheme—
but does not include—
(f)interest, unless that person’s principal business consists of the lending of money, or unless the interest is received in respect of a debt due to that person for goods supplied or services rendered by the person in the course of the person’s business; or
(g) rents or dividends; or
(h) any employer superannuation contribution.”
143The term “suitable employment” is defined in s3 of the Act to mean:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to the following—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker’s pre-injury employment.”
144The definition of “suitable employment” is an objective test that looks at the plaintiff’s current suitability for work (including alternative work), taking into account matters such as the plaintiff’s age, education and experience, and whether the work is a reasonable distance from the plaintiff’s place of residence.[113] The test looks at the plaintiff’s capacity for work which, in fact exists, but does not look at job market factors, such as whether there are vacancies for those jobs, and care must be taken not to confuse evidence of lack of availability of suitable jobs with evidence that suitable jobs do not exist.[114]
[113] See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [25] and [28]
[114]See State of Victoria v Rattray (2006) 154 IR 346 at paragraphs [16]-[18]
145I refer to the Court of Appeal decision of Harris v DJD Earthmoving Pty Ltd,[115] which was an appeal by a worker following a dismissal by the trial judge of his application for leave to commence proceedings and recover pecuniary loss damages. Factual issues raised at the first instance involved “suitable employment” and permanency of loss of earning capacity. The worker was successful in the appeal and the matter was ultimately remitted to the County Court for rehearing.
[115][2016] VSCA 188 (“Harris”)
146In talking about “suitable employment”, the Court of Appeal stated:
“… Rather, in the particular circumstances of this case, it was incumbent on the judge to demonstrate by his statement of reasons that he had considered in detail what, if any, specific job or jobs Mr Harris might, in the foreseeable future, be able to do[116] on a regular and consistent basis, allowing for such improvement as might be thought likely or possible after a pain management program and/or a drug treatment program and/or the undertaking of vocational education … .”
[116]“We have used the expression ‘be able to do’ (as distinct from, say, ‘be able to get’) advisedly. During the oral hearing, the Court raised with senior counsel for the respondent (at Transcript 52-53) whether ‘employability’ was relevant, having regard to what was said in Barwon Spinners, especially at (2005) 14 VR 622, 652 [74]. Senior counsel’s response, in substance, was that the test was one of physical capacity, not employability: Transcript 53. In his reply, senior counsel for the applicant mentioned ‘employability’ in passing (Transcript 59), but did not develop an argument against, or otherwise take issue with, the respondent’s position in that respect. Since the hearing, this Court (Ashley and Kaye JJA, Osborn JA agreeing) has decided Richter v Driscoll [2016] VSCA 142. That case related to a claim for statutory benefits under the Act in respect of a worker said to have ‘no current work capacity’ (as defined), a statutory concept that involved the same definition of ‘suitable employment’ as applied in the present case. In Richter v Driscoll, at [106], their Honours held that the definition of ‘suitable employment’ was such that the medical panel dealing with the matter in that case was ‘required to consider whether the entirety of the applicant’s relevant personal circumstances — that is, her injury caused incapacity and other relevant personal circumstances which we have discussed — meant that she would likely be unsuccessful in obtaining employment because she had nothing ‘merchantable’ to sell’. Further, there are indications in Richter v Driscoll, especially at [80], that their Honours did not consider that Barwon Spinners required that a different approach be taken to the question of ‘suitable employment’ in serious injury applications. However, for the avoidance of doubt, we confirm that, in the present case, in fairness to the respondent, we have assumed the correctness of the position advanced by the respondent (and not squarely contradicted by the applicant), namely that the test is one of physical capacity, not employability, in serious injury applications. However, the outcome would be the same in the matter before us regardless of the proper approach to be taken to the questions of statutory construction involved. Accordingly, it has not been necessary for us to form any view for ourselves on those questions, and we have not done so.”
147Obviously enough, the concept of employability or “merchantability” broadens the concept of what is “suitable employment”. Although the decision of Richter v Driscoll[117] dealt with statutory benefits, whereas Harris[118] was dealing with “suitable employment” as used in serious injury applications, there would appear to be no good reason why the same words constituting “suitable employment” should be interpreted in different ways. However, the definition of “suitable employment” makes clear that it refers to employment in work in which the worker is “currently suited”, having regard to a number of matters, and in particular, the worker’s education, skills and work experience.
[117][2016] VSCA 142
[118]Op cit
148The first issue to determine is what is said to be the “without injury” earnings of the plaintiff to be employed in paragraph (e)(ii) of s325(2) of the Act. The evidence does establish that the plaintiff had an ABN and, consistent with his tax returns, he ran a business of “painting”. When one looks at his taxation returns, there is significant reduction in gross income by various expenses. I highlight the following evidence in relation to this particular issue:
(a) I have already made reference to the first affidavit of the plaintiff, wherein he deposed that he began working for the defendant in December 2016 and was engaged to paint new houses in Melbourne and surrounding areas. He was provided with an employer’s uniform, would pick up paint from paint shops, and was provided with instructions from his supervisor as to where to go and what to do. He was paid at the rate of $32 an hour, including any superannuation allowance;
(b) I also refer to the Claim Form signed by the plaintiff on 13 April 2018.[119] In that Claim Form, the following information is gleaned:
[119]See exhibit 1 at pages 146-152 PACB
·The box marked “full time” has been ticked as relevant to the plaintiff.
·In response to the question as to when the plaintiff started working with the employer, there is a handwritten entry, “22,12,16”.
·When queried whether the plaintiff had any other employment at the time he was injured, there is handwriting that is unclear, but may suggest that he had other work at that time.
·Under the heading “WORKER’S PRIMARY EARNING DETAILS”, there are various sub-questions including:
§How many standard hours did you work each week before being injured?, with the answer being “48 hrs”.
§What were your usual working hours?, with the handwritten answer stating, “Mundey To Seturday (sic) 7:30 to 4:30”.
§What was your usual pre-tax hourly rate?, which is answered “27 $ ABN”.
§What were your usual pre-tax weekly earnings?, to which the plaintiff answered “1296$ ABN”;[120]
[120]See exhibit 1 at page 147 PACB
(c) The section of the form completed by the employer, was completed by Mr Dariusz (“Darek”) Rutkowski, described as a “Director of Jaggers Corporation Pty Ltd”. In that document, he described the plaintiff as performing the tasks of “PAINTING DOMESTIC NEW RESIDENCES” and, in particular, inserted crosses in boxes for “Casual” and “Contract” work. He also confirmed the plaintiff commenced work with Jaggers on 22 December 2016. Importantly, part of that document refers to questions which I will set out, and the responses by Mr Rutkowski:
· “How many standard hours did the worker work each week before being injured?”, to which he answered “40 hrs”.
· “What were the worker’s usual working hours?”, to which he answered “MONDAY TO FRIDAY 7.30-4.00PM”.
· “What was the worker’s usual gross hourly rate”, to which he answered “$27-00”.
· “What was the worker’s usual gross weekly earnings?”, to which he answered “$1080-00”.
· “Please provide details of any over time or shift work … Average weekly overtime”, to which he responded “7 hrs”; $189-00”.[121]
[121]See exhibit 1 at page 149 PACB
149Some of the evidence suggests there are indices supporting the relationship between the plaintiff and the defendant to be one of a contract of employment, rather than a contract for services. In this respect, I refer to the evidence that the plaintiff had to wear a uniform, was under the direction of a supervisor as to where he was to paint on any particular day, and was paid at an hourly rate for such job, which included an amount for superannuation – rather than being paid a lump sum for work for a contract to be executed.
150I should add that, if the plaintiff was conducting his own business, he can still be deemed a “worker” under certain provisions of the Act and “Jaggers Corporation Pty Ltd” deemed the employer – that is to say, the distinction in this case, does not impact on the compensability of the injury.
151As both counsel pointed out, there has been a line of authority, perhaps commencing with Alter v AlconLaboratories (Australia) Pty Limited,[122] wherein Judge Misso determined that the phrase “income from personal exertion” meant the “gross income from personal exertion without deducting expenses incurred in generating that income”.[123]
[122][2008] VCC 713
[123]See Alter v Alcon Laboratories (Australia) Pty Limited (op cit) at paragraph [80]
152As pointed out by those acting for the plaintiff, decisions of this Court, which are to the same effect as Alter, are as follows:
(a) Caratozzolo v Metroll Pty Ltd & Anor;[124]
(b) Boskovic v Road Maintenance Pty Ltd;[125]
(c) Tonkin v Leo Force Pty Ltd;[126]
(d) Hodge v Victorian WorkCover Authority.[127]
[124][2007] VCC 1006 at paragraphs [97]-[99] (per Judge Wilmoth)
[125][2006] VCC 51 at paragraph [73] (per Judge Strong)
[126][2017] VCC 740 at paragraphs [108]-[110] (per Judge Macnamara)
[127]2019] VCC 932 at paragraphs [85]-[89] (per Judge Dyer)
153However, in Guthrie, Shane v Campion Education (Aust) Pty Ltd,[128] Judge Coish stated:
“In my opinion, the expression ‘… the worker’s gross income from personal exertion (expressed at annual rate) which the worker is earning …’ in the context of a self-employed person conducting his own business means the plaintiff’s pre-tax earnings less expenses.
…
I am therefore satisfied that the plaintiff’s income from personal exertion refers to the proceeds of business which is the profit of the business, the earnings less expenses.
The word ‘gross’, which occurs twice in paragraph (f) in connection with both after injury and without injury earnings is a reference to the worker’s pre-tax income.”[129]
[128][2009] VCC 1141 (“Guthrie”) at paragraphs [41]-[43]
[129]Some other decisions of recent times have followed Guthrie and reference was made to the most recent case of Saitoski v G J & K Cleaning Services Pty Ltd [2022] VCC 299 (per Judge Tran)
154Again, as pointed out by those acting for the plaintiff, most of these cases (including Guthrie), in a broad factual sense, largely concern employed persons who, post injury, then become self-employed or started up their own business (often to accommodate their injury). The comparison, therefore, between before and after injury earnings is not straightforward. Guthrie and other cases caution that the Court needs to allow for pre/post injury comparison of “like for like” when examining the worker’s earnings. Of course, the factual circumstances of this case are just the opposite. The plaintiff was a painting contractor pre-accident and a deemed worker pursuant to the Act.
155I refer to, initially, the decision of Acir v Frosster Pty Ltd,[130] wherein Forrest J stated that, when determining pre-injury earning capacity on a non-prescribed worker, the Court is required to choose from one of the following four scenarios, as most fairly reflects the plaintiff’s earning capacity had injury not occurred:
(a) the gross income that the worker was earning during the period of pre-injury;
(b) the gross income that the worker was capable of earning from personal exertion in the three years before the injury;
(c) the gross income that the worker would have earning in the three years after the injury, if the injury did not occur;
(d) the gross income the worker would have been capable of earning from personal exertion in the three years after the injury, if the injury did not occur.[131]
[130][2009] VSC 454
[131]See Acir v Frosster Pty Ltd (ibid) at paragraph [165]
156In particular, scenario (b), I consider relevant to the determination of “without injury” earnings in this matter.
157I also refer to the Herald & Weekly Times Ltd & Victorian WorkCover Authority v Jessop,[132] wherein the Court of Appeal stated that:
“… a worker’s earning capacity represents a capital asset which, when exercised, produces income from personal exertion. It follows that a worker’s ability to earn income through personal exertion depends on the nature and quality of the worker’s capital asset and his or her capacity and willingness to use it to earn income. Thus, the worker’s physical and mental capacities to work are relevant, as are the type of work the worker is able to perform, the remuneration for that work and the hours that the worker is willing to work.”[133]
[132][2014] VSCA 292
[133](ibid) at paragraph [53]
158I also refer to the Court of Appeal decision of Nicholson v Victorian WorkCover Authority,[134] where it was held that the worker’s gross income is not reduced by reference to deductions made for the purpose of income tax for work-related expenses.[135]
[134][2016] VSCA 146
[135]See Nicholson v Victorian WorkCover Authority (op cit) at paragraphs [33] and [36]
159Accordingly, I note that those acting for the plaintiff refer to the Income Tax Return for the year ending 30 June 2017 and note that the gross income of the plaintiff was $44,138, while his tax income (that is with deductions made) was $28,578. Of course, given the date of the injury, those acting for the plaintiff “annualised” the sum of $44,138 to allow for the plaintiff only working 36.5 weeks of the 2017 tax year.
160The annualised figure is $62,882, 60 per cent of which is $37,729 (or, alternatively, $726 gross per week).
161I again refer to the employer document accompanying the claim for compensation, wherein it is recorded by a director of the company that the plaintiff’s usual gross hourly rate was $27, the plaintiff’s usual gross weekly earnings were $1,080, and that his average weekly overtime was seven hours – amounting to $189 (that is, seven hours at $27 per hour). Adding those amounts together gives rise to a figure of $1,269 gross per week which, in turn, amounts to an annualised amount of $65,988, which is only $3,000 more than the figure proposed by the plaintiff. Given that the plaintiff, being a contractor, most probably was not paid for holidays or sick leave, it may be appropriate to take the figure of $62,882 rather than $65,988 to be the “without injury” earnings.
162Insofar as the defendant submits that the “without injury” earnings are the gross amount, less expenses, I consider that to be the wrong approach in all the circumstances.
163It is now necessary to determine the annualised amount the plaintiff was able to earn “post injury”. There is a range of medical opinions extending from the one extreme, that the plaintiff has recovered from any back injury and could return to work as a painter;[136] and, notwithstanding that the plaintiff continued to have some back symptoms, could also return to work as a painter.[137] At the other extreme, there was medical opinion that the plaintiff had no capacity to return to his pre-injury work and effectively had no capacity to return to any type of suitable employment because of ongoing back problems.[138]
[136]See exhibit “A”, report of the neurosurgeon, Professor Gavin Davis, dated 14 May 2022 at page 91 DACB
[137]See exhibit “A”, report from the occupational physician, Dr Lucas, dated 25 February 2019 at page 30 PACB
[138]See exhibit 1, reports of the neurosurgeon and spinal surgeon, Mr Awad, dated 6 August 2019 and 23 November 2021 at pages 102 and 107 PACB
164However, the vast consensus of opinion among doctors was that the plaintiff had no capacity to perform his old job as a painter, but had a capacity for light work which did not over-stress his back. This case largely turns on what is considered to be an appropriate job and perhaps, more particularly, for how many hours per week could the plaintiff perform such work.
165After a consideration of all the evidence, I consider the opinion expressed by the occupational physician, Dr Brasier, best reflected the situation. Dr Brasier medico-legally examined the plaintiff on 28 November 2019, 29 July 2021, 3 September 2021 and finally on 16 December 2021. Dr Brasier accepts that the plaintiff had previously suffered a large acute L4-5 disc prolapse impinging the left L5 nerve root, with irritation subsequently confirmed on nerve conduction studies conducted on 3 June 2018. Indeed, the initial clinical evidence and radiological studies overwhelmingly support the proposition that the plaintiff did suffer a disc prolapse at the L4-5 level.
166Dr Brasier also notes that, following more recent MRI investigations of the lumbar spine suggesting that the plaintiff’s condition had improved over time, as he would expect of a man of his age, Dr Brasier considered that the plaintiff did have a capacity for suitable duties, but considered that such duties would be subject to the following restrictions:
(a) no pushing, pulling and lifting more than 5 kilograms from waist level;
(b) no repetitive pushing, pulling or lifting;
(c) no repetitive twisting or stooping;
(d) no prolonged sitting, standing or walking;
(e) opportunity to self-pace without demands of piece work; and
(f) the opportunity to be rotated through different economic demands.
167Dr Brasier was also of the opinion that the prognosis for the plaintiff was “guarded” and he regarded his situation as stable and would likely remain so for the foreseeable future. He also confirmed that, as a result of his lower back injury, the plaintiff was at increased risk of further degenerative changes in his lumbar spine, possibly requiring specialist intervention.
168Ultimately, Dr Brasier thought the plaintiff had a work capacity to perform work as:
(a) a product assembler;
(b) product examiner;
(c) light assembler;
(d) swing machinist; and
(e) quality/production clerk.
169In particular, Dr Brasier was of the opinion that the plaintiff’s hours should be limited to four hours non-consecutive days to a maximum of twelve hours per week. He considered that such incapacity will continue for the foreseeable future.
170I have come to such view for the following reasons:
(a) As I have noted, Dr Brasier has examined the plaintiff on four occasions leading up to the hearing of this matter and on all of those occasions, has made examinations of the plaintiff, has considered all the jobs proposed by those acting for the defendant, and has applied his expertise to determining what would be suitable employment;
(b) Two of the treating doctors – the pain specialist, Dr Mehr and Dr Sullivan – agreed that twelve hours per week would be the maximum the plaintiff could perform in suitable employment. In particular, Dr Sullivan noted that the plaintiff would be at high risk of re-injuring himself if he were to return to pre-injury employment and, furthermore, commented that a number of jobs recommended by the defendant would cause the plaintiff to extend himself beyond his physical capabilities and would highly likely result in aggravation of his condition;
(c) It is to be noted that the occupational physician, Dr Slesenger, examined the plaintiff on 27 May 2020 and on 12 July 2021. On both occasions, Dr Slesenger was of the opinion that the plaintiff had suffered mechanical injury to his lumbar spine, aggravation of degenerative disease of the lumbar spine, chronic lower back pain with radiating features, but no confirmed evidence of radiculopathy. On the first occasion, he was of the opinion that the plaintiff retained a capacity for work with restrictions, namely:
·No push, pull, carry or lift over 5 kilograms on a repetitive basis and 7.5 kilograms on an occasional basis.
· Avoid prolonged static postures.
· Avoid repetitive bending or twisting.
· Avoid exposure to whole-body vibration.
On the second occasion, Dr Slesenger was of the opinion that the plaintiff retains capacity for work with restrictions consisting of:
·No push, pull, carry or lift over 15 kilograms on an occasional basis and 7.5 kilograms on repetitive basis.
·Avoid prolonged static postures.
·Avoid exposure to whole-body vibration.
At the time of the second examination, Dr Slesenger was of the view that the plaintiff had a capacity to work four hours a day, four days a week, increasing to pre-injury hours over six to eight weeks;
(d) It must also be remembered that, although the general practitioner considered the plaintiff fit for sedentary duties – without stipulating whether they be full time or part time – he has also been prescribed, for some period of time now, the medication Endep, which is, in part, to help the lower back pain which he experiences;
(e) In his evidence, the plaintiff made plain that he has generally improved over time, but when his back is stressed by an activity involving lifting, reaching out and the like, he has increased back pain, and he is fearful of his back being made much worse if he is exposed to that risk;
(f) Again, I refer to the report of Dr Slesenger, dated 20 July 2021, in respect of his last examination, where he noted that the plaintiff had “extensive callosities on both hands, more noticeable on the right”.[139] As pointed out by those acting for the plaintiff, this finding was not replicated by any other medical practitioner and was denied by the plaintiff in cross-examination and taken no further.[140] In his report, dated 20 July 2021, Dr Slesenger seems to put some weight on that finding that the employment injury is now a “limited contributing factor”. Given the lack of findings by other doctors and the denial by the plaintiff, I put little weight on that finding to gauge the present capacity for employment of the plaintiff.
If one applies the hourly rate for any of the jobs identified by Dr Brasier to be suitable employment and then calculates what twelve hours per week would earn, each of those jobs would generate income far less than the 60 per cent figure of $37,729. For example, if one takes the largest-earning job, which Dr Brasier and, indeed, Dr Slesenger thought the plaintiff capable of performing, is that of product examiner, the gross wage is $1,373 per week. Assuming a week is thirty-eight hours, this gives rise to an hourly rate of $36.13.
Accordingly, twelve hours of work would amount to $433.56 per week, which, on an annualised rate would be $22,545.12, substantially less than the 60 per cent annualised amount of $37,729.
[139]See exhibit “A”, report of Dr Slesenger dated 20 July 2021 at page 72 DACB
[140]See T36, L7-16
171Finally, I refer to two issues – the first being the submission that the plaintiff was an “unreliable witness” and the second issue being the relevance of paragraph (g) of s325(2) of the Act.
172In relation to the first issue, it was submitted that the video surveillance generally of the plaintiff and, in particular, on 12 July 2021, was said to create “significant issues of doubt about the extent of any current condition of the Plaintiff’s lower back”.[141] In particular, it was submitted that the plaintiff was seen to move in a:
“… generally free and unrestricted manner with no overt signs of pain or restriction.”[142]
[141]See Defendant’s Submissions, dated 11 August 2022 at page 7
[142]See Defendant’s Submissions (ibid)
173Furthermore, it was submitted that he:
“… demonstrated and excellent range of movement of his spine including the ability to bend, twist and fully squat.[143]
[143]See Defendant’s Submissions (ibid)
174Such observations, so it was submitted, were at odds with the plaintiff’s complaints of constant pain and limited ability to perform household chores. In particular, those acting for the defendant compared the plaintiff’s presentation to the occupational physician, Dr Slesenger, who examined the plaintiff on 12 July 2021 with that shown in the surveillance footage, also taken on 12 July 2021.
175At that time, the plaintiff reported to Dr Slesenger that he was suffering “severe pain in the lower back, radiating into both legs (to the level of his feet)” and that he was spending his day at home, watching a movie or walking with friends. Such presentation to Dr Slesenger was compared to him being able to walk, seemingly in a free and unrestricted manner, with no outward signs of pain at all, able to bend down on his hands and knees, seemingly to look underneath his vehicle, and briskly perform a full squat.
176It was submitted by those acting for the plaintiff that the vast majority of the video shown was completely “innocuous footage” of the plaintiff variously eating a sandwich in a motor vehicle, transporting groceries and walking and talking on a mobile telephone.
177In respect to the “very short footage” on 12 July 2021, those acting for the plaintiff submitted:
(a) Given that the date of injury is now some four-and-a-half years ago, one to two minutes of footage is “hardly representative of the plaintiff’s daily activities, pain and limitations over that length of time”;[144]
(b) In relation to the comparison about the surveillance footage and the medical history given to Dr Slesenger, it was noted that the plaintiff said he was checking for a GPS tracker having been placed on his vehicle. Those acting for the plaintiff referred to the questioning of the plaintiff by the Court in respect of the activities captured by the video which did show him performing, and the plaintiff indicated that the pain is always in his back, but he does, nonetheless, do activities and cannot pretend otherwise. It was put that such an answer was a perfectly reasonable explanation;
(c) Furthermore, it was submitted that, in re-examination, the plaintiff admitted he knew he was being watched on the day of the filming and, notwithstanding, he performed the manoeuvre under the car which, it was submitted, readily demonstrates no attempt by the plaintiff whatsoever to limit his activities or otherwise exaggerate his limitations, even when conscious he was under surveillance.
[144]Plaintiff’s submissions dated 18 August 2022, at page 2
178When one goes to the report of Dr Slesenger in respect to the examination on 12 July 2021, it is to be noted the plaintiff has an excellent range of movement and, in particular, flexion to 90 degrees, right rotation to 70 degrees, left rotation to 70 degrees and right lateral tilting 20 degrees and left lateral tilting 20 degrees. Furthermore, he was able to stand and climb in and out of the chair, he was able to climb on and off the couch, he was able to perform a one-third squat, he was able to stand on his tiptoes, he was able to stand on his heels and he was able to sit with his legs extended over the edge of the couch. In my view, such would suggest reasonable movement of the back.
179Regarding, the complaint of the plaintiff, although he complained of pain, he made the point that increased activity, does give rise to severe pain symptoms. Furthermore, he has obviously not tried to underplay his physical movements, as he was prepared to demonstrate his ability to look under the car, well believing that he was observed at that time. The other matter is, on a variety of occasions, the plaintiff accepted he had improved, although he did speak of exacerbations sometimes through sexual activity.
180All in all, I do not accept the plaintiff’s credit was unduly impugned.
181Turning to the second issue, I again refer to the Court of Appeal decision of De Bono v Victorian WorkCover Authority,[145] and in particular to paragraph 35, wherein the Court of Appeal discussed paragraph (g) in s134AB(38) of the Accident Compensation Act 1985, as amended. Paragraph (g) in the current act is largely similar words. The Court of Appeal stated that, in attempting to describe the way in which such paragraph operates, is not without difficulty. The Court of Appeal did note that the paragraph does not, however, provide that, unless a worker has taken the steps referred to, then he or she has not established the loss of earning capacity required by s134AB(38)(b) of the Act.
[145]Op cit
182In any event, I do not consider this paragraph to have a role, bearing in mind the following:
(a) The plaintiff has, at all times, pursued the treatment and suggestions given by his treating doctors;
(b) I note that it was recommended by his treating pain specialists that he undergo a pain management scheme, which he was willing to do, but no funding was forthcoming from the insurer;
(c) At no time, on his evidence, has it been recommended that he look for work but, rather, time should be allowed for the pain to improve;
(d) I do consider, also, that the plaintiff has a certain degree of fear that if he does anything that unduly stresses his back, he could end up in a worse situation and once or twice during evidence he made the comment that it was only him who was going to look after him after that.
183When one plays this into the reasonableness, or otherwise, of his actions, I consider that the paragraph has no application and, even so, if there was some application, what does it mean, given the Court of Appeal’s earlier comments.
184Accordingly, I do find that the plaintiff has satisfied the narrative test, given the dramatic drop in what he was capable of performing prior to his injury, to what he is capable of doing now; that on a comparison between his “without injury” earnings to what he is now capable of earning in suitable employment, he has discharged the onus of establishing that he is under 60 per cent of his “without injury” earnings and, furthermore, based on the evidence of Dr Brasier and, indeed, all the treating doctors, the condition is going to be ongoing and, accordingly, “permanent” within the meaning of the Act.
Disposition
185There will be judgment for the plaintiff and leave for him to bring common law proceedings for both “pain and suffering” and “pecuniary loss” damages in respect to a lower back injury suffered by him during the course of performing work with Jaggers and, in particular, on 13 March 2018.
186I will hear the parties on the question of costs.
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