Oge v Victorian WorkCover Authority
[2016] VCC 1664
•31 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Not Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-00849
| CEM OGE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25, 26 and 27 October 2016 | |
DATE OF JUDGMENT: | 31 October 2016 | |
CASE MAY BE CITED AS: | Oge v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1664 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the low back – loss of earning capacity damages – pain and suffering conceded
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted to the plaintiff to commence a proceeding claiming damages for both pain and suffering and pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Mr N Griffin | Maurice Blackburn |
| For the Defendant | Ms A Magee QC with Mr T Storey | Russell Kennedy |
HIS HONOUR:
1 The plaintiff was an apprentice plumber injured in 2013. This was his final year of a four-year apprenticeship. He was aged twenty-four at the time (born in July 1989). He would have completed his apprenticeship as a Certificate III plumber in February 2014.
2 He was working on a construction site in the city. The injury to and impairment of his low back is an admitted compensable injury suffered in the course of his employment with Liquid Vision Plumbing Group. The real issue in this leave application is whether the plaintiff satisfies the statutory test of proving a permanent loss of earning capacity of 40 per cent or more.
3 “Serious injury” in terms of pain and suffering consequences was not conceded initially. On the second hearing day it was conceded on the basis that the plaintiff had permanently lost his chosen career due to the impairment of his back.[1] Thus the defendant sensibly conceded the medical evidence proved the plaintiff has permanently lost his capacity to work as a tradesman plumber. He was only a few months away from completing the four years necessary to become qualified.
[1]Transcript (“T”) 87
4 The real question then is what is this young man’s residual earning capacity. It is admitted he retains some capacity for alternative employment but does it mean he fails to establish the 40 per cent or more loss required for leave with respect to pecuniary loss damages?
5 It is agreed that if he had completed his apprenticeship he would now be earning $101,433 per annum ($1,950 per week) as a qualified tradesman plumber. Sixty per cent of that is $60,859 per annum ($1,170 per week).
6 The plaintiff’s case is that these figures only reflect part of the earning capacity I should take into account. This is because, even as an apprentice plumber, he was doing additional weekend work on the side. Prior to his being injured he had worked in a partnership with a qualified plumbing colleague taking private jobs for cash in hand. The income was never declared. They worked under the business name “360 Degrees”.[2] They registered as a company in 2014 under that name. Clearly the income should have been declared for taxation. But it demonstrates both good work motivation and energy and importantly, an earning capacity beyond his Monday to Friday full-time work.
[2]Plaintiff’ Court Book (“PCB”) 23 and 29
7 When fairly judging the capacity of a man injured at such a young age, I accept on the probabilities, figures from his employee role need to be supplemented by this extra weekend work. Understandably the amount earned on weekends varied considerably. I accept his evidence that he and his partner would obtain such private domestic plumbing jobs on about two or three weekends out of four.
8 Between $200 to $500 per weekend was mentioned, so over two or three weekends the average is probably somewhere between $400 to $1,500 per month. In the end, a minimum of around $10,000 per year was mentioned which would equate to about $200 per week.[3] While no precise figure can be ascertained, on the probabilities I am prepared to accept a figure of about $200 per week, in addition to the $1,950 per week he received in wages, reflects his present earning capacity as a qualified plumber if he had not been injured. Thus the total is about $2,150 per week.
[3]T45
9 Given his age, the assessment of his loss of earning capacity is approached on common law principles. Such assessments are very commonly made and involve something of a broad brush, value judgment approach. The defendant referred to authority and submitted an approach more closely attentive to the statutory definition of “suitable employment” was open. There is good sense shown by the statutory exception to the three years pre and post-injury analysis, as it allows the broader approach for a worker really just at the threshold of a working career. Such a value judgment is a familiar task judges and juries in the common law jurisdiction have performed for generations.
10 After completing Year 12, his marks were mediocre and sufficient to get him into a diploma course as opposed to a degree. He studied at RMIT in a diploma in accountancy course but he could not cope academically. He failed a number of subjects at the end of semester 1 and left shortly into semester 2. He then looked toward a manual trade. It seemed a sensible decision given his good progress through nearly four years of his apprenticeship until that ambition was cut short by the back injury.
11 After suffering injury and trying some light duties for a time, there were no more of these made available to him. He ultimately accepted that his trade ambitions had come to an end. He could not qualify or ever work “on the tools” so he tried a diploma course with the Master Builders Association. His hopes were to get into a supervisory role in the building industry.[4] His credit was attacked in cross-examination for representing himself in that application as having a Certificate III in plumbing when he had never quite got to that stage, although he was within months of completing the apprenticeship.
[4]Exhibit 1
12 I accept his explanation for this was that it was because “… I really wanted to get into that course”.[5] In my view, that application did not impeach his credit and I accept his answer. In the circumstances it is consistent again with a motivated young man who wanted to keep working and maximise his chances of doing so. He did not get far in the course and I accept that was due to back pain causing problems with concentration.
[5]Transcript 66
13 Through the WorkCover rehabilitation group, Work Able Consulting, he has applied for a great number of jobs. In addition, through another agency, SEEK, he has also pursued many other employment opportunities. He has exhausted personal contacts by way of family and friends in pursuit of work opportunities. He has not even been able to obtain a single interview. When one looks at the permanent restrictions put on such a young man by doctors on both sides, this is little surprise when the realities of the open employment market in our community are kept in mind.
14 A lot of the focus in cross-examination was on a job offer the employer made to him on 18 November 2014.[6] There was some vagueness about the precise requirements involved in this offer with respect to trade certificates and completion of his apprenticeship. It seems that the position involved the plaintiff completing two courses while working. Firstly, there was a Certificate IV in plumbing that was said to take twelve months to complete. However, the documents state that in the case of the plaintiff it would only be six to seven months because of “the recent completion of his apprenticeship”.[7] This of course is just not true as he never completed his apprenticeship. Secondly, he would then undertake a twelve to fourteen-month course, being a Diploma in Hydraulic Services Design.[8]
[6]Defendant’s Court Book (“DCB”) 209-217
[7]DCB 200
[8]DCB 202
15 It was never made entirely clear whether he needed to complete his apprenticeship (Certificate III) before further studies such as Certificate IV could even be started. Some references to this proposed job appear to proceed on the assumption of the apprenticeship being completed yet that can never occur now since the injury.[9] Leaving aside this uncertainty about whether he could even pursue this path without finishing his indentures, there was good reason he did not take it up.
[9]DCB 60, 63,67 and 69
16 An affidavit from the employer set out in some detail what the position involved.[10] The plaintiff’s evidence is that he discussed this job offer with his general practitioner and his physiotherapist. He was advised that it was beyond his capacity. He showed the general practitioner the written documents in relation to the offer. I except he acted reasonably in following medical advice from his current treaters in not taking up the offer. It is consistent, in my view, that this very well motivated young man would only refuse an opportunity for good reason. Medical advice from those professionals charged with caring for his health was good reason.
[10]DCB 192-195
17 His efforts to obtain alternative work are very commendable. He was under the umbrella of Work Able Consultancy from February 2014 to April 2016 looking for and applying for jobs. The search started with those positions that might be suitable given the years he had worked in his apprenticeship. So the focus of the search was in the building and construction area. In spite of a similar pursuit with SEEK in that same direction, nothing came of these attempts.
18 He decided to cast the net considerably wider. The breadth of his job search became even wider again. Examples were applications as a travel consultant, TAB attendant, road safety camera operator, “office all-rounder”, pet care advisor, corrections officer, parking officer and office receptionist.[11] The documents indicate that in the vast majority of cases he was not qualified for any of these positions and had no experience in any of them.
[11]DCB 82, 85, 89, 92, 94 and 98
19 He summed it up: “To be honest I didn’t know any - anything in these but I just got desperate.”[12] In the end it could be said he was really trying for any type of possible position that did not involve heavy manual labour as: “Yes, essentially I got desperate to find a job.”[13] He candidly agreed, with respect to a number of jobs and duties that were put to him, he could or would try to do them, but optimism does not equal capacity. Sadly for him, I do not consider his positivity is matched by a realistic capacity when all the evidence is considered.
[12]T102
[13]T101
20 His endeavours are a testament to his motivation and willingness to really “have a crack” at anything after accepting he would never go back to his trade. Similarly, he indicated he was not closed to the idea of further studies. But it should be said his attempt at a Master Builders Association course gives little encouragement on the evidence about his capacity for any serious studies. I accept he has basic computer skills but no more than anyone of his generation.
21 I have had the considerable opportunity of both hearing and observing the plaintiff give evidence over some two days. I find he has always wanted to work and still does. Once the employer had no more on offer he immediately sought other qualifications and opportunities.
22 There was little attack on his credit really. There seemed to be some veiled suggestion that the fact that he had travelled overseas for some time with friends and not described difficulties with that to doctors was inconsistent with the symptoms he complains of but I do not accept that. Experience these days tells me that very often young single people in their 20s travel at every opportunity. This topic did not damage his credit.
23 I accept that there was some inconvenience to him in terms of travel with respect to back symptoms but he is not a plaintiff who presents himself as an invalid who cannot enjoy travel. The clinical notes show his general practitioner loaded him up with prescription drugs in the very week before he was to travel.[14]
[14]DCB 220
24 Similarly, the sparing use of Tramal on prescription was not anything he sought to shy away from when asked. He produced a tablet box that supported evidence he used it from time to time. I accept he also needs over-the-counter painkillers as set out in his affidavits and this topic also did not diminish his credit.[15]
[15]PCB 22 and 27
25 He presented as a man who did not exaggerate his impairment. I found him a very reliable witness and rather stoical for one who underwent major surgery so young. An admission was sought and given of video surveillance conducted. None was shown. Similarly, there was essentially no criticism from any of the doctors and vocational people of the genuineness or motivation of this worker. I found his credit unimpeached. The defendant found him a valuable employee. I accept he has tried every avenue reasonably open to him to get back into work once the gateway to his plumbing qualification was closed by the low back injury.
26 What was very clear in Court was his constant need to alter posture from sitting to standing and needing a break in proceedings. The transcript contains several references to such occasions. At one stage counsel for the defendant quite properly asked if he needed a break such was his obvious discomfort.[16] I accept back pain is the cause of this problem and it is relevant to capacity for work when looked at realistically.
[16]T63
27 After hearing and observing him I find he is quite a straightforward young man but with limitations. He had difficulty at times in Court even following fairly straightforward questions. When paperwork was presented to him he was not readily on top of matters he was directed to. He wrote an account in longhand in exhibit 1 that, in my opinion, adds to the overall conclusion I have that he is not an obvious candidate for any further serious studies with an academic component. He is basically a man suited to “hands-on” type work who was clearly not frightened of doing hard work all week and then taking on additional weekend work for some extra cash.
28 There is very little medical debate in this case so I do not need to deal with the doctors in any great detail. I am more assisted by the up-to-date medical opinions in judging the extent of residual earning capacity. The most recent material from his treating general practitioner, Dr Ahsan Hussain, described in September this year that the pain was chronic.[17]
[17]PCB 34
29 The general practitioner has never certified his patient as fit for anything more than 20 hours work per week. Perhaps even more to the point, those hours have very real limits on what he can do in terms of actual duties. The certification at the time the general practitioner advised the plaintiff not to take up the employer’s job offer in November 2014 is informative. For a very young man the perimeter fence as it were the doctor put around his activities was extensive:
“1. sit/stand no greater than 30 minutes
2. walking no greater than 60 minutes
3. lifting from waist height no greater than 5 kg
4. lifting from the floor no greater than 2 kg
5. rotate tasks every 30 minutes
6. rest breaks as needed
7. work 3 days a week at 4 hours/day.”[18]
[18]PCB 86-89
30 It is no surprise in view of the certification that when presented with the job offer from the employer dated 18 November 2014, the general practitioner advised his patient it was beyond his capacity. When the material from the treating physiotherapist is looked at, it is consistent with the plaintiff’s evidence that this practitioner also advised him not to take up that job offer because of the impairment of his low back.[19]
[19]T85-86
31 The treating physiotherapist knows the plaintiff very well. He has treated him for about some two-and-a-half years from 2014 and still does. He commented specifically on current work capacity and said only last month that his patient had a current capacity for 20 hours a week with modification of duties. He not only limited the hours but they were with some very real restrictions:
“He is to minimally lift no more than 10kgs, sit and stand no more than 30 minutes and walking 1 hours, rotate tasks as required and 4 hours per day.”[20]
[20]PCB 44
32 The physiotherapist thought these were permanent restrictions, and he stated:
“I also believe that his condition will limit and affect future work and work opportunities as it has limited many aspects of Mr Oge’s ADLs, work capacity and employability”.[21]
[21]PCB 44
33 He rather gloomily stated:
“Thus I believe Mr Oge’s prognosis is poor and his condition will worsen, and in the future will further restrict and incapacitate Mr Oge.”[22]
[22]PCB 44
34 Finally, the treating physiotherapist stated:
“In summary, Mr Oge’s condition will limit his capacity for work in the short and long terms. He will worsen with time and access to treatment is and will be ongoing. He will never and should not return to manual pre-injury moderate/heavy based plumbing work. If he does, then the likelihood of further deterioration and injury to other aspects of his lumbar spine are markedly significant.”[23]
[23]PCB 44
35 I accept this evidence from a practitioner who would know his patient well, having treated him on so many occasions. It is a very bleak picture painted for such a young well motivated man whose vocation was a physically-based trade. Unfortunately that bleakness is a permanent picture.
36 As well as reports, clinical notes from the general practitioner were tendered.[24] They are a timely reminder of the need for caution in reading too much into extremely brief computer-driven notes when the doctor was not called. The notes are so brief that each one can usually be read in about ten seconds or less. They cannot possibly record anything like what was said between him and his patient.
[24]DCB 219-226
37 The defendant relied on a note in regard to the plaintiff’s evidence that the general practitioner advised against the 18 November 2015 hydraulics job offer. Really the submission was I should not accept the plaintiff in regard to that advice because of the note. In fact the bare note reads in only twelve words: “no change in situation, has been offered some job, needs to assess it”.[25] I do not accept that this bald note is inconsistent with the plaintiff’s evidence that this job offer was discussed with the doctor who advised against it. The fact the plaintiff needed to “assess” the advice does not mean the advice was not given.
[25]DCB 224
38 As to whether he would be able to undertake the duties involved, the plaintiff said: “I was advised by my management team no.” He was then asked:
Q: “Well, who advised you no?---
A: My physio and GP.”[26]
[26]T85-86
39 This plaintiff has been a compliant patient. He has consistently followed treating medical advice even to the point of undergoing spinal surgery at twenty-four years of age. I accept he acted reasonably in following it again with respect to the 18 November 2014 job offer.
40 The reasonableness of the patient following his treaters’ advice is corroborated by the regular and frequent reliance on the opinions of those very same practitioners by the WorkCover vocational experts.[27]
[27]DCB 63, 64, 65, 66, 73 and 83 for example
39 The treating neurosurgeon, Mr P D’Urso, operated on the plaintiff on 7 May 2014. The surgery was major. It was designed to treat a condition of acute L5‑S1 disc prolapse. He performed an L5‑S1 laminotomy, discectomy and rhizolysis. Disc material was removed from around the S nerve root which was then decompressed. The plaintiff was in hospital for several days. He last reviewed his patient on 6 June 2014 when he suggested he could return to part-time light employment in August with a graded increase in hours.
40 However, this statement needs to be put in a context of very severe permanent restrictions that the surgeon put on his young patient:
“I placed permanent restrictions on Cem’s capacity to perform repetitive bending, twisting or lifting. I recommended that he do not lift weight in excess of 10 kg and he should not be required to lift weight from below the knee or above the shoulder. I recommended that Cem have the ability to ambulate freely in the workplace and avoid sitting and standing postures in excess of one hour.”[28]
[28]PCB 40
41 While the prognosis was considered likely to be satisfactory, there was some qualification in that from Mr D’Urso when he said there may be a degree of degenerative progression which was somewhat difficult to determine and predict. Looked at realistically, the permanent restrictions put on the plaintiff must of necessity impact on a very wide range of employments.
42 Taking the evidence of these treating practitioners, in my opinion they amount to a very significantly impaired earning capacity that is permanent for such a young worker. There are many other employments that will be significantly impeded in terms of him being able to take on any full-time, regular basis as is required out in the real world. Workers cannot just take rest breaks when they want to or walk around when they feel like it. Whatever the workplace they are in, workers cannot just refuse to lift anything below the knees or above the shoulders just to take a few of the permanent restrictions he has. If a boss wants something done as basic as these functions, then in the real world it has to be done.
43 A medico-legal opinion has been tendered from Professor R Bittar, consultant neurosurgeon. He reported in August 2016. He said:
“In my opinion he is permanently incapacitated for his preinjury duties as an apprentice plumber, or for any other type of work that has a significant physical/labouring component. In my opinion he is currently incapacitated for suitable duties, taking into account his level of education, qualifications, training and work experience. If he were to return to the workforce, he would require extensive retraining … .”[29]
[29]PCB 53
44 Professor Bittar set out a number of restrictions that he obviously had accepted. These were:
“His back pain and leg pain are aggravated by coughing or sneezing, bending, twisting, lifting more than 5 KG from below waist height, walking more than 30 to 40 minutes on flat ground, sitting for more than 10 to 15 minutes, and standing for more than 20 minutes.”[30]
[30]PCB 51
45 The surgeon examined the plaintiff only about two days after he returned from overseas. Professor Bittar found there was radiculopathy and the objective clinical sign of spasm.[31] This is objective evidence supporting the plaintiff’s account of how the travel caused aggravated symptoms.[32]
[31]PCB 52
[32]PCB 28
46 He ended on a very pessimistic note:
“In my opinion the identified restrictions are likely to be permanent. In my opinion he currently does not have any capacity to work in a suitable role in a realistic, reasonable and reliable manner. This total incapacity for work is a direct result of the organic injury to his lower back.”[33]
[33]PCB 53
41 I accept Professor Bittar’s opinion that when one looks at the skill set, work experience and the very real permanent restrictions on activities as simple as sitting and standing, his earning capacity is severely impaired.
47 The defendant relied on a report of Mr C Jones, orthopaedic surgeon. It is two years old. He felt at that time that the plaintiff had no current work capacity.[34] He was not asked by the insurer to see the plaintiff again.
[34]DCB 14
48 An occupational physician, Dr D Barton, also only saw the plaintiff once. That was in March 2015. I find him hard to follow. He thought the plaintiff was unfit for normal plumbing work. As to work generally, in terms of modified or alternative duties he said: “At this stage I doubt that he will get back to normal work.”[35] He then sent a letter in December 2015 about some vocational assessment job suggestions. Without seeing the plaintiff again he thought the plaintiff could do them.[36] Are these jobs not normal work? On what basis did the doctor have an apparent change of opinion? He set out no reasons for reaching this different, second view. It is noteworthy he found the objective signs of injury by way of leg wasting in both the left calf and thigh. I reject his second opinion. The reasons for it are not properly explained.
[35]DCB 19
[36]DCB 22-23
49 Another occupational physician, Dr U Boffa, saw the plaintiff twice at the request of the insurer. In September 2015, he reported that:
“The worker is unable to return to modified pre-duties. The worker is able to return to suitable alternative duties that allow change of posture and avoid the game repetitive bending, twisting, pushing, pulling, lifting and carrying more than 5 kg.”[37]
[37]DCB 27
50 In September 2016, he reassessed the plaintiff and repeated the same restrictions. This time he also commented on a number of job suggestions that were put to him from vocational assessment material. He thought the jobs as a rental and trade counter salesperson as well as a road traffic controller were unsuitable because of the manual handling and prolonged standing. He thought suggested roles as an electrical tester/tagger and dispatch clerical clerk were suitable for what he described as a “chronic condition”.[38] The defendant does not rely on the latter.
[38]DCB 35
51 Dr D Elder, consultant in occupational medicine, performed an AMA percentage assessment in 2015 and his report does not really assist in judging capacity. Interestingly this was post-surgery, yet he found the objective signs of leg wasting, absence of left ankle jerk and clinical evidence of radiculopathy.[39]
[39]DCB 38-39
52 The plaintiff tendered some 25 or so pages of vocational assessment documents. The defendant tendered closer to 120 pages. Parts are of little assistance and a lot are repetitive. There are a number of suggestions that are theoretical in terms of jobs and capacity when this young man’s situation is looked at realistically. It is not necessary to minutely go through all of it.
53 An assessment of capacity for suitable alternative employment has to be made with the realities of the employment market in mind. Theoretical suggestions that largely ignore those are of little use. The plaintiff has no completed qualifications. He could not even successfully complete even one semester of the RMIT diploma course before sensibly moving into the heavy manual trade of plumbing. The diploma course was just too challenging and too hard.[40] Also he did not get far with the MBA course.
[40]T60-61
54 On my assessment of him in Court he is not a promising candidate for studies of any complexity or length. The one written piece from him in the exhibits confirms he has limitations with even basic literacy that does not auger well for alternative non-manual work requiring retraining studies. He wrote in a very basic handwriting style:
“The workplace accident I have seen was a form worker result with a big cut on his calf … .”[41]
[41]Exhibit 1
55 What is not properly factored into any of these job suggestions is that the plaintiff suffers daily constant back pain, together with left leg pain at times.[42] He requires daily medication.[43] He must constantly alter his posture, as he did both in the witness box and in the body of the Court over three days.[44] For a strong young man to be limited to less than 5-kilogram lifting, or even 10 kilogram, is a severe restriction even in many clerical roles with lever arch files and documents. He needs rest breaks. These are major and very wide permanent restrictions that are most unusual for a man only twenty-seven years old.
[42]PCB 22, 24-25
[43]PCB 27
[44]PCB 26
56 These factors impact adversely, not only on a capacity to hold down any job but also to take on studies. I accept that he has problems with his concentration and focus due to his pain of which “I am still always conscious …”.[45] I find that when he attempted the MBA course he was unable to complete it because of that back pain impacting on his concentration and focus.[46] Successful studies are improbable looking at all the evidence and what I saw and heard in Court.
[45]PCB 26
[46]DCB 85
57 Reading through the long chain of reports in relation to his attempts to obtain work is very sobering. What stands out throughout the documents is his unfailing motivation and cooperation with Work Able, NES and Recovre over the years. These professional agencies have been involved in direct phone calls, cold calling employers, written job applications, preparation of appropriate résumés and even the engagement of the WISE scheme. It subsidises employers if they take on an injured worker but all to no avail. These documents are salutary reminders of what appellate authority points to by way of adopting a realistic approach to assessing residual earning capacity for an injured worker.
58 Just to give an example of the futility of all of these efforts, by 23 June 2016, after sustained and varied attempts by Work Able to assist the plaintiff, they in effect signed off on this client. His cooperation was never in question. Work Able had been constantly involved since February 2014. Last June, after constantly widening the net of possible employment opportunities, they noted how difficult it had been to source vacancies that comply with his injury and physical restrictions. Their farewell message was the plaintiff had to go on now as an independent job seeker and:
“Work Able Consulting notes the Job Seeking Service will now cease, and wishes Cem well in his future.”[47]
[47]DCB 99
59 The Recovre Group was the last provider to be engaged by the defendant. They offered the new suggestion of Electrical Tester/Tagger. Some typical demands can include standing or sitting at a workbench and on occasions squatting, crouching, kneeling, bending or crawling. Lifting and carrying or moving tools, fittings, appliances and equipment are also referred to.[48] On the evidence, all these tasks are either simply beyond the plaintiff or he has medical advice to avoid them. Also a Trade Certificate is the desired education requirement.[49] The plaintiff has no such certificate whatever the discipline this refers to.
[48]DCB 132
[49]DCB 132
60 The defendant submitted there were seven jobs the plaintiff had the present capacity to perform that would remunerate him to the extent that a 40 per cent loss was not made out. I reject them as being beyond his capacity when looked at realistically. They involve full-time hours. There is no evidence I accept that full-time hours, together with his very stringent physical restrictions will be within his capacity in the foreseeable future. They ignore his ever present pain. They ignore how that impacts on his concentration. They ignore he needs to take constant breaks and in the real employment world that is clearly relevant to holding down any job to an employer’s satisfaction. They ignore he is on daily medication even when he is not working.
61 In view of the findings I have reached, it is not necessary to discuss the reports of the vocational assessor, Katrine Green, in any detail. I simply say that after having regard to the reality of the employment market when judging his residual capacity, I agree with her opinion that the suggested alternative jobs sent to her were beyond the plaintiff’s capacity.
62 Considering all the evidence I am satisfied the plaintiff has discharged the onus of proving a permanent loss of earning capacity of 40 per cent or more. I grant the leave sought for both pain and suffering and pecuniary loss damages.
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