Pelogidis v Mohammed Mustaq Khan T/A MMK Panels &

[2010] VCC 459

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-09-02498

Adam Pelogidis	Plaintiff
v
Mohammed Mustaq Khan T/A MMK Panels &	Defendant
Smash Repairs

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	12 & 13 May 2010
DATE OF JUDGMENT:	21 May 2010
CASE MAY BE CITED AS:	Pelogidis v Mohammed Mustaq Khan T/A MMK Panels & Smash Repairs
MEDIUM NEUTRAL CITATION:	[2010] VCC 0459

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134AB(16)(b) – injury to the left leg – permanent serious impairment of or loss of a body function – pain and suffering and loss of earning capacity

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Curtain SC	Zaparas Lawyers
with Mr S. Jurica
For the Defendant	Mr R. Meldrum QC	Hall and Wilcox
with Ms A. Ryan
HER HONOUR:

1 The plaintiff applies under s.134AB of the Accident Compensation Act 1985 for leave to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of a permanent serious impairment of the function of the left leg sustained during the course of his employment as a panel beater with the defendant on 15 May 2007, when he was pushing a car out of the work shop. The injury giving rise to the impairment is an injury involving a complex tear of the left meniscus; horizontal cleavage tear of the body of the lateral meniscus with associated cyst; precipitation and/or aggravation of degenerative changes; pain; left quadriceps wasting, instability and restriction of movement of the left knee.

2          The defendant concedes that an organic injury to the knee occurred on that date, in the form of a meniscal tear which was subsequently resected during arthroscopy, and agrees that due to his knee condition, the plaintiff is permanently unfit to return to his pre-injury duties as a panel beater. However, the defendant says that the plaintiff is not a credible witness because he has exaggerated his disability to those who have examined him and because of some inconsistencies in relation to his evidence about his family business, his use of a walking stick, and his ability to drive a manual car. The defendant also says that the persistent knee symptoms complained of are largely non- organic in nature, and reflect the fact that he has developed a chronic pain syndrome which has not been adequately disentangled from his organic injury. The defendant says that looking only at the organic knee injury and its consequences, the plaintiff is physically fit for suitable employment at least 25 hours per week as an estimator, a production scheduler, a motor vehicle assessor or a mobile camera operator. In this regard the defendant relies on the Co Work report dated 8 April 2010 (“the Co Work report”). For these reasons, the defendant says that the plaintiff must fail on both limbs of his application.

3          The plaintiff is 42 and came to Australia in 1981 at the age of 13. He spoke no English. He left school at the age of 19, while repeating year 10, and obtained an apprenticeship in panel beating, which he completed 4 years later. He commenced work with the defendant as a panel beater in 2005, working 40 hours per week and earning approximately $40,000.[1] On 15 May 2007 he suffered an injury to the left knee while pushing a car out of the workshop.

[1]             The parties filed different figures in relation to the plaintiff’s without injury earnings. The plaintiff submitted that this figure is $48,979 per annum or $941.90 gross per week. The defendant submitted that this figure is $789.00 per week. On the plaintiff’s figures, he must establish that he is incapable of earning at least 60% of $941.90 which is $565.14 per week. On the defendant’s figures, the plaintiff must establish that he is incapable of earning more than $473.00 per week.

4          He reported the incident to his employer but kept working in spite of increasing pain. His symptoms continued and MRI indicated a meniscal tear. He was referred by his treating doctor, Dr Tang, to an orthopaedic surgeon, Mr Gerard Bourke, who performed a left knee arthroscopy on 15 November 2007 and discovered a large posterior horn tear consistent with the MRI finding as well as a small lesion on the medial femoral condyle, again consistent with the MRI finding.[2]

[2]             See Plaintiff’s Court Book (“PCB”) p. 41

5          In spite of physiotherapy and exercises, and a cortisone injection in May 2008, his knee symptoms have persisted; with problems reported of pain in the left knee with squatting, crouching, climbing stairs; as well as a feeling of instability. He returned to work on light duties after the injury but his employment was terminated in July 2007 when the defendant said it did not have any light duties for him. In November 2007 he completed a three-day computer course, which he paid for himself. The insurer did not provide him with any retraining. He felt that he might be able to work as a vehicle assessor, and on his own initiative, in March 2008 he persuaded the manager of a smash repair shop to give him a trial as a vehicle assessor by offering to work for nothing. He was given the chance to quote on one vehicle but could not kneel or squat under the car to inspect it fully. He was upset when he realised that he would not be able to work in this occupation.

6           He has had a few falls since the injury. As at the date of the hearing, he continues to see Dr Tang about once per month, who prescribes him Panadeine Forte and Endep. He takes 3-4 Panadeine Forte tablets per day and 1-2 Endep tablets per day to help him sleep. The medication makes him drowsy and affects his memory and concentration. He sees his psychologist fortnightly.

7          Before his injury he worked full time, maintained his own car, went jogging, enjoyed fishing for flounder and socialising on weekends. He would cut the grass and had painted the inside of the house where he lives with his parents. He said he is no longer able to do any of those things.

8          At the hearing, he agreed that he had not mentioned the second-hand goods business he has run with his family over the past 15 years in his affidavit but explained that he was not asked about it. He said that Ms Schneider asked him a specific question and he answered it. His father runs the business but did not speak English when the business began and it was registered in the plaintiff’s Australian Business Number (“ABN”). The plaintiff said he has not played a role in the business other than looking after the paperwork. He forwards the invoices to the accountant, who prepares the tax returns.

9          He said he used to use a walking stick a lot because of his falls and feelings of instability in the knee but no longer uses it except at shopping centres. He said he was a panel beater for 23 years and loved the job. He said he tried to do what Mr Bracy suggested, namely, walk a bit further every day, use an exercise bike and trying kneeling, but all of these activities aggravated his knee pain.

10        His WorkCover payments were terminated early this year. Two months ago, he was assessed by Centrelink and put on a disability pension.

11        He viewed video surveillance taken of him on 24 July 2009, mainly of him inside a local TAB, and agreed that he spent some hours most days of the week there, betting and passing the time. He said it became an escape for him. He agreed that on the video he was walking, sitting and only limped briefly, but said he walked slowly. He denied not being in pain at the time and said that he was always in pain. He agreed that he can drive a manual car and has driven his father’s manual van on occasions. He agreed that he suffers from depression.

Plaintiff’s medical reports

12        The plaintiff’s treating doctor, Dr Tang, reported in April 2010[3] that the plaintiff suffers a “high degree of disability relating to the original work related injury – which is left quadriceps wasting, torn fibres, chronic left knee and patella pain secondary to damaged articular cartilage of the medical femoral condyle and tearing of the left lateral meniscus. Depression is an ongoing issue. Needs multiple painkillers to control symptoms and this caused drowsiness”. Dr Tang concluded that he could not do accident-assessing jobs because of the need to bend and crouch but could work four hours per day, initially three days per week, provided he was not required to remain in any position for more than 15 minutes at a time.

[3]             PCB p. 40

13        Mr Gerard Bourke, the treating orthopaedic surgeon, reported in February 2008 that he found marked wasting in the quadriceps but that the left knee joint was “not unduly unstable and not irritable”[4]. He concluded that the plaintiff’s meniscal problem has been solved but “he is still left with his longstanding patellofemoral joint pain and instability”[5] and that the wasting significantly contributes to his ability to get full function in knee. Mr Bourke referred him for aggressive quadriceps exercises. In May 2008 he noted the complaint of ongoing pain and gave the plaintiff a cortisone injection.[6] In July 2008 he reported that the ongoing pain is probably attributable to patellofemoral joint symptoms which is best treated with quadriceps strengthening and anti-inflammatories.[7] He felt that most of these symptoms did not relate to the work injury but to more longstanding patellofemoral joint problems. [8] In August 2008 he reported that the joint pain was not amenable to surgery and recommended a rehabilitation doctor.[9] In September 2008 he again recommended that the plaintiff strengthen the knee.

[4]             PCB p. 43

[5]             ibid

[6]             PCB p. 44

[7]             PCB p. 45-46

[8]             PCB p. 46

[9]             PCB p. 47

14        Mr Bracy, surgeon, reported in August 2009 that that plaintiff had a pain syndrome and needed pain management. In April 2010 Mr Bracy reported that the plaintiff had a significant organic injury and appropriate treatment but that the “widespread pain since then doesn’t fit with continuing organic injury”[10]. He felt that the reported tenderness in many areas around knee is consistent with chronic pain syndrome. He concluded that the plaintiff “probably still has a small amount of pain which is due to the organic underlying problem” but that the majority of his symptoms were due to chronic pain syndrome. However, he concluded that due to his knee injury the plaintiff was “suited to sedentary employment”.[11]

[10]           PCB p. 50b

[11]           PCB p. 49-50

15        Dr Stockman, rheumatologist, reported in March 2009[12], that while the plaintiff did have some instability in his left knee, “his symptoms seem out of proportion to the signs and MRI findings” and the constant and burning nature of the pain suggested a pain syndrome. In April 2010, he felt that the instability in knee could be due to meniscal damage and the pain could be due to persisting lateral meniscal injury and early osteoarthritis of the knee as well as an “element of pain syndrome” [13]. He felt that leaving aside any mental aspect, the organic injury had to some degree affected his capacity for pre- injury employment but that the plaintiff was fit for alternative suitable employment with restrictions on squatting or prolonged walking or standing. He felt that the plaintiff may need anti-inflammatories, further steroid injections, and maybe repeat arthroscopy. He concluded that the plaintiff’s pain and incapacity “are to a large degree related to the effect of the organic injury to the knee” and these effects would be permanent.

[12]           PCB p. 51

[13]           PCB p. 53

16        In May 2010, Dr Stockman reported that the plaintiff could undertake part-time employment if there is prolonged standing or kneeling, but could work full time if the job is largely sedentary.[14] He felt that the plaintiff could do part-time alternative duties for up to 25 hours per week provided he avoided keeling, squatting, repeated use of stairs and constant weight bearing.

[14]           PCB p. 54a

17        In April 2008, Mr Flanc, orthopaedic surgeon, found that the work incident caused the tear of lateral meniscus and concluded that the plaintiff could not return to his pre-injury work.[15] In September 2009, he noted that the plaintiff’s condition had not improved; that he limped and used a walking stick; and that he reported continuous pain and difficulty walking.[16] He found significant wasting of the left thigh muscles. He felt that the continuing pain in spite of surgery may indicate a degenerative condition of the patello-femoral joint which was previous asymptomatic but which was rendered symptomatic by the work incident.[17]. He felt that the plaintiff probably had a pain syndrome but concluded that “some of his pain is probably caused by the degenerative condition affecting his patello-femoral joint”.[18] He concluded that the plaintiff had very limited mobility and may need training to be an assessor. He felt that any attempt at a lighter occupation would need to be “part time and adjusted to his symptoms” and that the plaintiff could possibly work four hours per day on alternate days.

[15]           PCB p. 57-62

[16]           PCB p. 63-69

[17]           PCB p. 68

[18]           PCB p. 69

18        In September 2009, Professor Afif Hadj, orthopaedic surgeon, reported that the incident caused the plaintiff’s current problems; that he could do sedentary work where he can change positions at will, but that he was more likely to develop arthritic changes in the knee.[19]

[19]           PCB p. 79

19        In May 2005, Mr Hunt, orthopaedic surgeon, reported that the organic injury suffered by the plaintiff was: a chondral injury to the surface of the lateral aspect of the medial femoral condyle; a complex tear of the posterior horn and body of the lateral meniscus of the left knee; and symptomatic chondromalacia patella. He felt that the prognosis was for ongoing knee pain resulting from these conditions, and that in the future his symptoms would deteriorate further. He concluded that the organic injury alone prevented the plaintiff from returning to his pre-injury employment and from obtaining alternative suitable employment, including any sedentary or light physical work. He noted that the plaintiff’s left knee symptoms affected “every facet of his life”, interfering with his sleep, his ability to squat or kneel, and his ability to sit, stand or walk for significant times. He did not feel that the plaintiff could work the hours suggested by Mr Flanc or Dr Tang, nor that the plaintiff could perform the jobs suggested by the Co Work report. He felt that the plaintiff’s physical restrictions (including the inability to sit for long periods) precluded work in any of the four jobs, and that in addition, his lack of experience precluded work as a production scheduler.[20]

Defendant’s medico-legal reports

[20]           PCB p. 81

20        In March 2009 Dr Brown opined that there was little objective evidence of ongoing physical incapacity and that the plaintiff was physically fit for alternative full time suitable employment, including the 4 positions identified in the Co Work on 8 April 2010 – estimator; production schedule/coordinator in a vehicle body shop; motor vehicle assessor; mobile speed camera operator. He felt he could do these positions without specific restrictions because they are not strenuous physically.[21]

[21]           DCB p. 7-10

21        Mr Rodney Simm opined in March 2009 that the plaintiff had appropriate arthroscopic treatment for the torn segment of the lateral meniscus, but that his “clinical course has been of a chronic pain syndrome with an associated depressive illness”.[22] He felt that apprehension in relation to left knee symptoms had led to withdrawal of use of left limb and secondary quadriceps wasting and that he has symptoms of patello-femoral dysfunction but no clinical signs of this condition[23]. Mr Simm concluded that he has a “significant impairment and loss of function of the knee but that the degree of impairment has been considerably amplified by his chronic pain syndrome and emotional disturbance”. He felt that the plaintiff could work at bench and for periods sitting or standing but not long standing and that the position of insurance assessor would be suitable but the plaintiff would need retraining.

[22]           DCB p. 12-19

[23]           PCB p. 16

22        In April 2010 Mr Simm noted the employment options identified by the Co Work report, but felt that the plaintiff could not get under cars to inspect them and was not physically capable of using a stool and a long-handled mirror for this purpose. He felt that the plaintiff was physically capable of doing the work of a mobile speed camera operator. [24]

[24]

23        Mr Reid provided a number of reports. In 2007 he expected the plaintiff to get back to work in a few months. In February 2008, he reported that the plaintiff was fit for a non-physical job, not involving lifting or squatting or walking more 15 minutes, and could work as an assessor or in customer service. He repeated this opinion in September 2008 and recommended no lifting over 7 kgs. By August 2009, however, Mr Reid felt that the main feature of his presentation was his depression, and that his left knee injury was only contributing to a minor extent to his current presentation, and that he could be fit for his pre-injury duties when his psychological condition resolved. In April 2010, Mr Reid reported that while he had not seen the plaintiff since September 2008 he felt that the plaintiff was fit to do the four jobs identified in the Co Work report.

24        Dr Fraser, rheumatologist; did not examine the plaintiff. The defendant relied on his report merely to contradict Dr Blombery’s opinion concerning the origin of the plaintiff’s pain. Given my findings below, it is not necessary to refer further to either of these reports.

Vocational Reports.

25        A number of vocational assessment reports were tendered as part of the defendant’s court book, but the defendant relied only on the last of these, a report from Co Work dated 8 April 2010, which analysed the tasks involved in each of four positions: estimator, motor vehicle assessor, mobile camera operator and production scheduler.

Serious Injury - Legal Principles

26 In order to make out a “serious injury” within paragraph (a) of the definition in section 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function whose consequences to him in terms of loss of earning capacity and pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function[25], fairly described as being more than significant or marked, and as being at least very considerable.[26]

[25]  

[26] See section 134AB(38)(c) of the Act

27        Decisions as to whether an injury is serious involves elements of fact, degree and value judgement.[27] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[28] On the authorities[29], the proper analysis involves: establishing that the plaintiff suffered compensable injury after 20 October 1999; establishing what that injury was; determining the consequences which the plaintiff alleges have resulted and that those consequences were “materially contributed to” by the compensable injury; and determining whether those consequences meet the “very considerable level” in terms of pain and suffering and/or loss of earning capacity.

[27]           Fleming v Hutchinson (1991) 66 ALJR 211

[28]           See Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58].

[29] Ibid, [80]

28        The whole of the evidence before the court should be considered, not just the medical evidence.[30]

[30] Ibid, [85]. See also Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 at

29        The psychological or psychiatric consequences of a physical injury are not to be taken into account in an application confined to paragraph (a) of the definition of “serious injury”.[31] Accordingly, so far as the evidence allows, the Court must identify and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or physical basis. This requires exclusion of any pain and suffering consequences which result from or are a manifestation of any recognised psychiatric condition (such as depression, adjustment disorder); chronic pain syndrome or disorder; functional overlay; exaggeration of symptoms, whether conscious or unconscious; or any other aspect of the plaintiff’s psychological response to the physical injury.[32]

[31]

[32]           Mutual Cleaning and Maintenance Pty Ltd v Anastasia Stamboulakis [2007] VSCA 46 per Maxwell P at p4-5

30        However, the Court may be satisfied that on the probabilities the plaintiff has suffered an organic impairment which satisfies the statutory test even though identification of the precise quantum of a supervening functional or psychological overlay has not been attempted, or is not possible.[33]

[33]           Biserka Zivolic v Hella Australia Pty Ltd – BC200705132, 3750 of 2006, per Redlich JA at [19]; Shock Records Pty Ltd & Anor v Matthew James Jones [2006] VSCA 180 per Bell, A.J.A. at [68-[72];

31        Where the plaintiff relies on impairment comprising the aggravation of a pre- existing condition, the plaintiff must establish that the impairment constituted by the aggravation amounts to a “serious injury”.[34]

[34]  

32        Where loss of earning capacity is alleged, leave to issue proceedings is not to be granted unless the plaintiff establishes that, as at the date of the hearing, as a result of the injury he has suffered a permanent loss of earning capacity of 40% when a comparison is made between his without injury earnings in the three year period before and after period as best reflects his earning capacity, and his earning capacity at the present time from suitable employment.[35] The plaintiff will not establish the requisite loss of earning capacity if, after taking into account his physical or mental capacity for suitable employment after the injury and his attempts to participate in rehabilitation or retraining, he has a capacity for any employment which, if exercised, would result in him earning more than 60% of his pre-injury earnings as determined in accordance with paragraph (f) of section 134AB(38) of the Act.[36]

[35]           Barwon Spinners Pty Ltd & Ors v Podolak [2002]VSCA 33; Petkovski v Galletti (1994) 1 VR 436

[36] See Section 134AB(38)(g) of the Act.

33        The worker’s loss of earning capacity is to be determined “having regard to employment that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker who is incapable of performing his normal work”.[37]

[37]           See Smorgon Steel Tube Mills Pty Ltd v Miliovj Majkic [2008] VSCA 230 per Buchanan JA at [10].

34 Where a plaintiff claiming to have suffered serious injury consequences in terms of both pain and suffering and loss of earning capacity satisfies the loss of earning capacity requirements of s.134AB, that plaintiff is entitled to claim damages for both loss of earning capacity and pain and suffering. It is therefore not necessary for the Court in those circumstances to determine whether the plaintiff has established the pain and suffering limb of his application.[38]

Findings and reasons

[38]           See Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority [2009] VSCA 170 per Redlich JA and Beach AJA at [63]

35        A number of doctors (Mr Bracy, Dr Stockman, Dr Brown, Mr Simm and Mr Reid), have commented on the psychological features of the plaintiff’s recent presentation. Dr Tang opined that the plaintiff is suffering from depression, for which he is being treated, but that he was suffering a high degree of disability relating to the original work injury, and needed multiple painkillers to control his symptoms. Mr Simm agreed that the plaintiff had suffered a significant organic impairment and loss of function of the left knee which was amplified by his chronic pain syndrome and depression. Dr Stockman and Mr Bracy felt that the plaintiff was suffering from a pain syndrome. Mr Bracy felt that only a small amount of pain was due to the organic knee problem and that the majority of his symptoms were due to a chronic pain syndrome. Dr Stockman acknowledged the presence of a pain syndrome but concluded that the plaintiff had some instability in the knee and that his pain and incapacity related to a large extent to the organic injury to the knee. Mr Reid concluded “there were no reliable signs of persistent injury and there were definite signs of exaggeration”.

36        Mr Reid also noted in August 2009[39] that the plaintiff walked into the consultation room with a walking stick, and walked slowly, but walked without a limp when not using it. He noted again that at the end of the consultation he walked to his car without a limp, “at normal speed and not really bearing any weight on the walking stick”. The defendant relied on this comment as indicating that the plaintiff was exaggerating his disability.

[39]           Defendant’s Court Book (“DCB”) p. 38

37        I found the plaintiff to be a straightforward witness, and I accept his evidence that he uses the walking stick to help his confidence, and not because he cannot walk without it. I do not consider that the comments of Mr Reid detract from the weight of the evidence concerning the existence of an organic injury with permanent sequelae in terms of restriction of movement and pain. I do not consider that the video surveillance material on 24 July 2009 which shows the plaintiff walking (without a walking stick), sitting and standing at a hotel or TAB detracts from his evidence about his pain and restrictions.

38        There is clear evidence of an organic injury to the knee and of a permanent impairment to its function. Some doctors (Dr Stockman) documented an instability in the knee that he has reported. Others (Dr Tang, Mr Bourke, Mr Flanc) noted the significant wasting of the thigh muscles. Mr Flanc opined that the continuing knee pain in spite of surgery may indicate a degenerative condition of the patellofemoral joint that was rendered symptomatic by the incident. Mr Simm also found symptoms of patellofemoral dysfunction.

39        More importantly, there is general consensus (apart from the opinion of Mr Reid) in the medical evidence that, leaving aside any psychological overlay, due to his organic impairment of the function of the left knee in spite of surgery, the plaintiff is permanently incapacitated for his pre-injury employment.

40        There is a range of opinions, however, as to extent of the plaintiff’s residual physical capacity for employment. Mr Hunt, who assessed the plaintiff in 2010, was alone in concluding that due to his physical restrictions and limitations he could not undertake any of the four employment options identified in the Co Work report. Mr Simm felt he could not do the work of an assessor. On the other hand, Dr Brown felt that the plaintiff was fit to work full time in each of the positions identified in the Co Work report and Mr Bracy felt he could work full time in a sedentary job with restrictions on bending, kneeling, stooping, walking and standing. The weight of medical opinion lay in between these two opinions, with most doctors (Mr Tang, Mr Flanc, Dr Blombery and Dr Stockman) concluding that the plaintiff could work part-time (between 12 and 25 hours per week) with restrictions including no stooping, squatting or kneeling or using stairs and limited standing or walking. I consider, consistent with the weight of medical opinion, that the plaintiff does have a residual physical capacity for light employment part-time in a sedentary position not involving kneeling or stooping or using stairs and with limited periods of walking and standing.

41        The Co Work report analysed the tasks involved in each of the four position identified as suitable employment options for the plaintiff. The report suggested that a job vacancies existed for a motor claims consultant for $62,500 per annum and a motor assessor for $55,000. The author of the report did not interview the plaintiff. Ms Schneider interviewed the plaintiff and provided a vocational assessment report dated 29 April 2010 which concluded that, having regard to the plaintiff’s education, training, work experience, transferable skills and physical restrictions, he could not perform any of the positions identified in the Co Work report. In particular, she noted that he could not perform the physical tasks involved in being an assessor. I note that Mr Simm also felt this job was unsuitable for the plaintiff in the light of his physical restrictions. As similar physical capacities are required for the position of Estimator or Assessor, I consider that he does not have the physical capacity to undertake these positions.

42        Ms Schneider concluded that the plaintiff would not be able to obtain a job as a mobile speed camera operator because he did not have the necessary skills for the position and would not pass the stringent medical examination that is required for the position, given his pain, physical restrictions, medication needs, and the impact of the medication on his level of functioning. Ms Schneider also concluded that he would be unable to undertake the training required in any event for such a position given his poor postural tolerances, pain and the impact of medication on his concentration. I accept Ms Schneider’s conclusion in this regard, as she is the only person who has properly assessed the requirements of the position against the plaintiff’s skills and limitations.

43        Finally, Ms Schneider concluded that the job of Production Scheduler/Coordinator was a full-time position and that the plaintiff would be unable to perform this position given his physical restrictions, lack of experience with office-based work involving the use of computers and a customer service orientation, and the physical constraints on his ability to engage in the extensive retraining needed. She concluded that he had no work capacity and that without literacy training and vocational retraining that was compatible with his significant work restrictions he would remain unemployable for the foreseeable future.

44        Having considered all the evidence, but leaving aside any psychological consequences of his physical injury, I find that due to the permanent impairment of the function of the left knee there is no employment for which the plaintiff is suited when regard is had to the definition of suitable employment in s.5 of the Act.

45        I note that the plaintiff is 53 years old and has limited education and skills of relevance to any proposed light sedentary employment. He also has no work experience apart from panel beating. I note that his employment was terminated because his employer did not have light duties for him, but that no alternative positions have been found for him, nor has he been offered any rehabilitation or retraining by the defendant. I also note that he attempted to find work in 2008 by offering to work for nothing on a trial as a vehicle assessor, but that he was unable to complete the quotation due to his inability to get under the car to conduct a full inspection. I accept the opinions of Mr Simm and Ms Schneider that he is physically incapable of performing the positions of assessor and estimator. I accept the evidence of Ms Schneider that the plaintiff lacks the skills and physical tolerances to perform the position of mobile speed camera operator. I accept the evidence of Ms Schneider that he has no experience with office-based work involving the use of computers and a customer service orientation and that he is not a candidate for retraining in this regard because of the extensive retraining (in literacy as well as in occupation) required and his physical limitations in undertaking such retraining. As at the date of the hearing, he is in receipt of disability support benefits.

46 It follows from the above that, as at the date of the hearing, the plaintiff has established the requisite loss of earning capacity required by s.134AB(38)(e)(i) and (g) of the Act, and that the loss of earning capacity consequences of his permanent impairment are, when judged in comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.

Conclusion

47        Leave is granted to the plaintiff to issue proceedings for the recovery of damages in respect of the injury to the left knee sustained on 15 May 2007 during the course of his employment with the defendant as a panel beater.

48        I reserve the question of costs.

DCB p. 20-21
See section 134AB(38)(b) of the Act

[170].
See section 134AB(38)(h) of the Act

Jayatilake v Toyota Motor Corporation [2008] VSCA 167 at [17]-[29],[170], [171] and [173].

See section 134AB(38)(e)(i) and (38)(f) of the Act.