Peters v VWA
[2020] VCC 256
•12 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-03287
| DENIS PETERS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 13 February 2020 | |
DATE OF JUDGMENT: | 12 March 2020 | |
CASE MAY BE CITED AS: | Peters v VWA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 256 | |
REASONS FOR JUDGMENT
---
Subject:
Catchwords:
Legislation Cited: Accident Compensation Act 1985;
Cases Cited:Richter v Driscoll [2016] VSCA 142; De Bono v Victorian Workcover Authority [2019] VSCA 85; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622
Judgment:
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Fitzpatrick and Ms A Smietanka | Zaparas Lawyers |
| For the Defendant | Mr B McKenzie | Minter Ellison |
HIS HONOUR:
Introduction
1 Originally, Denis Peters sought leave to start proceedings for damages relying on paragraph (a) of the definition of “serious injury” in s134AB(37) of the Accident Compensation Act 1985 (the Act) and asserting consequences with respect to pain and suffering and loss of earning capacity. However, at the start of the hearing before me, the defendant conceded the consequences were “serious” in relation to pain and suffering, leaving the consequences with respect to loss of earning capacity in dispute. The impairment or loss of body function is to the spine, more particularly the cervical spine.
2 There are two affidavits of Mr Peters and one from his wife, Gillian. As is usual, each party tendered a court book containing many documents.
Circumstances
3 Mr Peters is now 54.[1] Educated to Year 9 level,[2] he has worked for the last 30 years as a storeman. In truth, he has had an almost continuous history of employment since leaving school. In 2007, he started with Radio Frequency Systems Pty Ltd (Radio Frequency) as a storeman. He worked at its warehouse and factory premises in Kilsyth. For the first two years his employment was casual then he became a permanent employee.
[1]Born 9 September 1965.
[2]He attempted Year 10 but did not pass. He started but did not finish a “VOP” Arts course. He has completed a first aid course.
4 Radio Frequency designs and makes cables, antenna and large outdoor communication towers. Mr Peters picked, packed and despatched items involved in its manufacture. His work involved carrying heavy boxes of parts and lifting them to and removing them from overhead shelves. The boxes could weigh more than 30 kilograms. Lifting was a significant part of his daily work. Apart from boxes, he lifted tubes and parts up to 3 metres long. He pushed and pulled heavy trolleys carrying parts and other stock around the warehouse. He would stack and unload pallets.[3]
[3]See description in the report of Workable Consulting dated 20 March 2019 at p 3.
2012
5 Mr Peters traces the origin of the problems with his neck and right shoulder to Friday, 8 June when he was lifting heavy boxes from an overhead position. He experienced pain in his neck and right arm. He tried to continue working but could not and went home. He rested on the weekend. On the following Tuesday, he saw a general practitioner who diagnosed a strain and prescribed Voltaren Rapid. On 19 June, he returned to work on modified duties. Although modified, he struggled. He lodged a claim for compensation, which was accepted. The claim related to the right shoulder. However, one of his duties was photocopying. Looking down for three hours caused neck pain and pain in his left shoulder and arm.
6 During that year, there were a series of radiological or other investigations: 22 June -- x-rays on neck; 23 June -- nerve conduction studies; 12 September -- CT scan of neck; 5 November -- ultrasound of left shoulder; and 6 December -- MRI scans of cervical and thoracic spine.
7 In December, Mr Peters lodged a second claim for compensation relating to his left arm with his employer.
2013
8 In 2013, Mr Peters was transferred to Radio Frequency’s warehouse in Bayswater. He was in charge of receiving goods. Other employees did some of the lifting of items which he would otherwise have done. He held the position for three years until the warehouse closed and then resumed his original duties at Kilsyth.
2014
9 Mr Peters’ general practitioner referred him to a neurosurgeon, Greg Malham, whom he saw on 7 March and 10 April. Mr Malham recommended conservative treatment.
2016
10 Until 2016, Mr Peters was on modified duties or less onerous duties than his pre-injury duties. During the year, Radio Frequency required him to return to his normal duties.
2017
11 Mr Peters persisted in those duties until 12 December when he stopped work for, as it turned out, the next 11 months. He described his position:[4]
“By December 2017, I was struggling to continue to work. I had been having trouble doing data entry on the computer because sitting in that position and the posturer caused my symptoms to flare up temporarily. I also stood at times but still experienced trouble. I was continuing to get shooting pains from my neck to my arms, headaches and experiencing weakness in my arms and numbness in my right arm. I had to continuously alter my posture to relieve the shooting pains going down my arm.”
[4]Affidavit sworn 14 March 2019 at [44].
2018
12 Following MRI scans, Mr Peters saw a neurosurgeon, Yagnesh Vellore, who, on 21 May, performed a discectomy on two cervical discs and fused his cervical spine at two levels.
13 On 5 November, Mr Peters returned to work. His duties and hours were modified. He performed office duties. His weekly hours started low but rapidly increased. In his first week, he worked 8 hours, second, 12, fourth, 12.5 and fifth, 16.5. Thereafter, the aim seemed to be 16.5. By the end of the year, he had returned to the warehouse in its receiving area with a 5 kilogram lifting restriction, which his employer did not always observe.
14 Towards the end of the year, his physiotherapist, Cameron Brown, noted:[5]
“…as his hours increased and tasks involving looking down became more often. He was unable to tolerate any increase in loading without an increase in upper limb pain and headache particularly on the right side. This also resulted in numbness in the right upper limb.”
[5]Report dated 17 December 2019 at p 2.
2019
15 Work Able Consulting provides occupational rehabilitation services.[6] In March, it started working with Mr Peters. It arranged several meetings with him and others developing return to work programmes. Although such a programme had Mr Peters working four days a week with each day of five hours between 25 February 2019 and 21 March 2019, in fact, only once did he work 20 hours. He came close in other weeks, falling short because of sick leave and, on one occasion, a public holiday.
[6]Report dated 20 March 2019.
16 Work Able Consulting proposed a gradual return to work. By the week starting 15 July 2019, it proposed he would be working a 40 hour-week over five days.
17 Until early 2019, Mr Peters worked 16.5 hours each week. He worked on Monday, Wednesday and Thursday between 8.00am and 2.00pm with 30 minutes for lunch and rest breaks when required. At the request of an authorised agent, he increased his hours to 20 each week, five hours daily over four days. He struggled with the increase, persisting for about a month before returning to his earlier hours. Even the 16.5 hours, he found difficult, going home at lunch for a rest.[7] His duties were about half data entry and about half receiving goods. The latter included unpacking goods from deliveries, labelling them and putting them onto shelves.
[7]His home was 500 metres from the warehouse.
18 On 18 June, Mr Peters, Dr Rizk, a representative of the authorised agent, an exercise physiotherapist, a representative of Workable Consulting and four representatives of his employer met. The meeting was held at Dr Rizk’s clinic with four of the participants on the phone. A summary of discussion appears in the recent report of Dr Rizk:[8]
“We have discussed work duties and restrictions that Mr Peters could and could not do. The plan was for him to go on trial of work and review the pain control and capacity. Restrictions were as follows: no lifting overhead; lifting no more than 5 kg between shoulder and knee height; no lifting off the floor; no reaching with any weight outside of 1 m from his body; he should alternate between his left and right unpacking boxes. He has been advised to stretch and use hot packs when feeling sore. Can do 5 hours daily 5 days a week.”
[8]Report dated 11 February 2020.
19 These restrictions were earlier recommended by the physiotherapist, Cameron Brown.[9] The 25 hours a week was meant as a trial with the restrictions identified by Dr Rizk and the continuation of physiotherapy.
[9]See report dated 20 March 2019.
20 Unfortunately, shortly afterwards, Mr Peters’ employer said it could not continue to provide him light duties. Until then, he worked in the inwards goods section of the warehouse:[10]
“I was counting stock and also doing some data entry. It involved me using both arms repetitively during the day including to do data entry on a computer. I also had to twist my head throughout the day to look at boxes and labels on packages. When I was doing data entry, I had to hold my neck in a fixed position which was awkward. I was getting headaches every day after work. My arms would ache and were sore. Luckily, we only live about 500 metres away from work so I didn’t have far to get home. During my shift, my pain would become worse and my arms would get heavier and heavier. I would have to rest every day after work. I struggled to do anything after work because of my symptoms.”
[10]Affidavit sworn 6 February 2020 at [20].
21 On 10 September, Mr Peters told Dr Rizk physiotherapy had stopped, which was against his recommendation.
22 Between 5 November 2018 and 9 June 2019, Mr Peters worked between 6 and 20 hours a week. On one week he worked 20 and on another week only one. The most usual number was 16.5. However, there were four occasions, he worked 19.5 or 19.75 hours coupled with the intriguing figures of 0.25 or 0.50 hours for sick leave. He never reached five days a week and struggled with five hour shifts.
23 Mr Peters described the seven months of his working until June 2019:[11]
“…I worked three and then four days a week, and my hours fluctuated in that time. I did feel that this was beyond my capacity and I was exhausted for the rest of the day. I felt my headaches increased and I did not have the energy to do much at home after work. Ideally, I would have worked 12 hours a week as I felt I could manage this when I was doing it in late 2018, but I was too scared to lose my job and I was trying to give working a go. I was pushing myself to try and get back to full-time work, but I couldn’t.”
[11]Affidavit affirmed 6 February 2020 at [18].
24 Gillian Peters said of this period:[12]
“Based on my observations, when Denis was trying to return to work from November 2018 until June 2019, he was much more irritable. He would complain of increased headaches in the evenings as well as sore and aching arms. I would see him resting in the evenings and not doing much else. I used to hate how exhausted it made him. I felt he was pushing himself beyond his capacities.”
[12]Affidavit sworn 6 February 2020 at [7]:
25 Dr Rizk was recommending Mr Peters retrain for a different job.
26 On 20 March 2019, Dr Rizk saw Mr Peters. His note reads:[13]
“Recurrent severe headaches. Pulsating in the neck. Panadol didn’t ease. Lyrica helped him sleep. More pins and needles when he does more than he should. Feels tingling in right ear. Discussed duties, hours and retraining.”
[13]Defendant’s Court Book at p 167.
27 Since March 2019, Mr Peters has worked with a rehabilitation provider called Work Able Consulting and, in particular, Tim Denholm.
28 During the week commencing 25 February, Mr Peters started on 20 hours per week. In fact, that was the only week where he actually worked 20 hours. In the subsequent weeks, he worked less, sometimes slightly, with the balance made of sick leave, annual leave and a public holiday.
29 On 19 March 2019, Mr Brown and Dario Vidackovic, a Work Able consultant, developed a more appropriate work plan.
30 This plan appears in the Defendant’s Court Book.[14] It sets out his duties: cycle counting in the stores area; bin audits; opening boxes and labelling parts; using scales to measure weight of parts; placing parts away on shelves; and data entry on computer. Below these duties, this commentary appears: “The above duties require Mr Peters to constantly sit/stand/walk around, use both hands, grasp parts and lift up to 2-3 kg of parts out of boxes (standing), place parts away on shelves shoulder height (no bending, kneeling and overreaching).”
[14]Pages 70-71.
31 The plan sets out hours and days of work. For the three weeks starting 25 March, he would work five hours on each of Monday to Thursday, a weekly total of 20 hours. The next five weeks would be taken as annual leave. Then on the week starting 20 May, he would work six hours on each of Monday to Wednesday and five hours on Thursday, giving a weekly total of 24 hours. However, Dr Rizk altered the six hours on Thursday to five and wrote beneath these proposed hours: “6 hours is still too much in fact. ATM[15] we are discussing retraining.” I suppose he meant to alter the hours of each of the days that week, altered only one, saying six hours were too much.
[15]At the moment?
32 Under various headings, the plan refers to current certificates of capacity for restrictions. Although the material does not disclose a then current certificate, an idea of the restrictions emerge from Mr Brown’s letter to Dr Rizk on 20 March 2019. He proposed these restrictions: no lifting overhead; lifting no more than 5 kilograms between shoulder and knee height; no lifting off the floor; and no reaching with any weight outside of one metre from his body. These restrictions were coupled with an ability to alternate between his left and right arms when unpacking boxes and to stretch and use hot packs when sore. These restrictions were included in the Dr Rizk’s certificate of capacity until 17 April.
33 On 11 July, Mr Denholm reported to the authorised agent. After noting Mr Peters’ work history, qualifications and job interests, he examined six employments: despatching and receiving clerk; warehouse administrator; stock clerk; production clerk; parking inspector; and meter reader. He recommended the funding of a Small Business Basic MYOB course for Mr Peters to attend. This course would enhance the chances of employment in the first four occupations.
34 That month, Mr Peters enrolled in the course. I do not know the duration of the course but it involved a three-hour class once a week. There was a textbook, which Mr Peters describes as “big”. After three weeks, he stopped attending. He could not understand the text:[16] “I kept trying to but nothing sunk in. Things have never sunk in for me…I was so embarrassed. I had to drop out.”
[16]Affidavit sworn 6 February 2020 at [22].
35 On 30 September, Mr Denholm wrote to the authorised agent. Although Mr Denholm stated Mr Peters completed the course, that was not so. He noted Mr Peters’ comments: “Mr Peters stated he found the course very difficult and he feels this type of work will not really suit him. The course was strongly focussed on book work and theory.”
36 On 17 October, Mr Denholm prepared a JSS Report, which he sent to the authorised agent. He quoted from Dr Rizk and Associate Professor Boffa. He now considered there were five employment options: car park attendant; customer service representative; booking clerk; parking inspector; and meter reader. Mr Denholm retained the mistaken view Mr Peters completed the MYOB course. He noted Mr Peters’ comment: “Denis believes these job options match his experience and skills provided he can reduce the potential physical requirements of the work. Despatching and receiving clerk positions can be considered as Denis (scil Denis’) rehabilitation progresses.”
37 Mr Denholm prepared other reports: 130 week vocational assessment; and joint RTW job seeking plan. The last, dated 19 December 2019, planned steps for Mr Peters to obtain other employment, including car park attendant and parking officer.
Current position
38 In his second affidavit, Mr Peters experiences pain and discomfort most of the time. Since the operation, relaxing his shoulders increases his pain and symptoms. He tends not to relax his shoulders, carrying them higher, which he finds exhausting during the day.
39 Mr Peters sees his general practitioner regularly. He did so with his physiotherapist until August 2019. He takes non-prescription medicines, Advil and Panadol, four to six tablets daily. He avoids stronger medicines because of their side effects.
40 In late 2019, he was diagnosed with Chronic Obstructive Pulmonary Disease.
41 He lives in Kilsyth which is 36 kilometres from the centre of Melbourne. He drives a 2018 Nissan with automatic transmission. He can drive for up to 90 minutes. He drinks too much, up to six cans of alcohol daily.
Medical and other evidence
Rizk
42 Rany Rizk is a general practitioner, who has treated Mr Peters since 5 December 2017, taking over from another practitioner in his clinic. On that day, Dr Rizk thought Mr Peters had signs and symptoms of cervical radiculopathy after twisting his neck at work. He arranged MRI scans of the neck. The radiologists concluded[17]:
“Diffuse cervical spondylosis, most severe at C5/6. Central canal stenosis, moderate to severe at C5/6 and moderate at C6/7 with cord compression. No cord oedema or myelomalacia.
High grade right C3/4, C4/5, C6/7 and C7/T1 foraminal stenosis with corresponding neural compression. Moderate to high grade right C5/6 foraminal stenosis also compresses the right C6 nerve. On the left, is high grade C5/6 and C6/7 foraminal stenosis with compression of the left C6 and C7 nerves.”
[17]Report dated 21 December 2017.
43 “Diffuse” encompasses disc bulges at each of C2-3 to C6-7 discs and foraminal disc protrusion at C7-T1. All bar C5-6 were mild.
44 Dr Rizk now considered surgery the only viable solution and referred Mr Peters to a neurosurgeon, Yagnesh Vellore, who agreed. On 21 May, Mr Vellore performed a C5-6 and C6-7 anterior cervical discectomy and fusion with plate fixation.
45 Dr Rizk sees Mr Peters regularly, every three or four weeks. Despite returning to work, Dr Rizk considers Mr Peters is restricted in what he can do: he should not lift, pull, push, both occasionally or repetitively or rotate his neck or repetitively move it.
46 Curiously, Dr Rizk issued two certificates of capacity on the same day, 10 February 2020. One covered the period 25 January to 29 January 2020 and the other, 10 February to 3 March 2020. Both contained the same physical limitations while one said “Can do 5 hours daily 5 days a week” and the other, “A trial of 3 hours 3 days a week to assess his capacity further”.
47 Dr Rizk did not give oral evidence but his latest report shows his reasoning:[18]
“Mr Peters was previously cleared for 5 hours of work 5 days a week as a trial, but after cessation of physiotherapy and offering no modified duties his pain is much worse. Mr Peters also has learning issues. So I fail to see him going back to work without proper support. He can do a trial of 3 hours 3 days a week on modified duties. The consequences of his injury and surgery will always restrict him from labouring duties especially that needs: lifting, pulling, pushing, neck rotation and repetitive neck movements. These include both occasional and repetitive. These restrictions are mostly permanent.”
[18]Report dated 11 February 2020.
48 In the certificate specifying three days, Dr Rizk added some other detail -- no lifting overhead, no lifting more than 5 kilograms between shoulder and knee height, no lifting off the floor, no reaching with any weight outside of 1 metre from his body with the opportunity to alternate between his left and right arms in unpacking boxes and to stretch and use hot packs when feeling sore. This constitutes his present view of Mr Peters’ capacity for work.
Vellore
49 Following the operation, Mr Vellore reviewed Mr Peters twice with the last on 25 October 2018.[19] Then, Mr Peters had some minor cervicogenic headaches while the bulk of his neck and arm symptoms had gone. Mr Vellore recommended physiotherapy and, if needed, pain management. He considered the injuries stable.
[19]Report dated 13 February 2019.
50 As to Mr Peter’s capacity for employment, Mr Vellore said:
“As a result of Dennis’ injury, he is likely to be precluded or restricted in relation to employment activities involving repetitive pushing, pulling or lifting, bending, reaching, twisting or stooping, prolonged sitting, standing or walking, gripping, holding, carrying, typing, writing and use of tools. The extent and duration of these are somewhat unpredictable; however, it is likely that it will extend into the foreseeable future, ie, it is likely his condition has stabilised.
As a consequence of Dennis’ injury, it is unlikely he has a capacity to perform his pre-injury duties. Limitations imposed on him include avoidance of activities involving heavy lifting, bending, twisting or any activities that is likely to play (sic) on his neck. It is quite possible that his incapacity will be permanent, that is last into the unforeseeable future.” (scil Denis)[20]
[20]No doubt he means “foreseeable future”. The report was dictated by Mr Vellore but not seen by him in its typed state.
51 In a later report, he said:[21]
“It is likely that Mr Peters will not be able to perform his usual occupation. His capacity for any form of duties at this stage would be precluded by restrictions including avoidance of heavy lifting, bending, twisting, pushing, pulling, stooping, prolonged sitting, standing, driving, avoidance of activities involving neck strain, spending long periods in front of a desk or computer or any other activities that are likely to exacerbate his neck symptoms. Based on his qualifications of never having finished school and being relatively computer illiterate and having these restrictions imposed on him, it is unlikely that he will be able to participate in gainful employment or occupation at this stage. It is likely that this is going to be the case for the foreseeable future. This is likely a consequence of his work-related neck injury.”
[21]Report dated 10 February 2020.
52 Although Mr Vellore had not seen Mr Peters since October 2018, Mr Peters’ solicitors gave him copies of Mr Peters’ affidavit affirmed on 6 February 2020, the CoWork Vocational Assessment and Labour Market Analysis Report dated 28 January 2020 and the 130-week Vocational Assessment Report dated 24 October 2019.[22]
[22]Letter dated 7 February 2020.
Brown
53 Cameron Brown is a physiotherapist. He first treated Mr Peters in mid-July 2018 and the last time on 28 August 2019 after funding was stopped.[23]
[23]Report dated 17 December 2019.
54 Mr Brown considered the delay between surgery and the original injury caused long term damage to the nerves in Mr Peters’ arms “far greater than if it was performed immediately”. This was due to atrophy in the arms, worse with the right and was consistent with nerve compression over months. With the neck, there was stiffness in rotation and with lateral flexion to the right. There was weakness in grip strength, biceps and triceps movements.
55 Over their involvement, Mr Brown saw only a slight improvement in the pain levels in the arms. He made good gains in muscle bulk and strength but did not reach pre-injury levels. Mr Peters struggled with his posture and frequency of task with the computer. This necessitated some modification of the set-up of his computer.
56 During May, Mr Peters was required to work outside the plan causing increased arm pain, headache and weakness in the hands.
57 At their last meeting, Mr Peters was not working. Nevertheless, he had pain in his neck and arms and weakness in his hands.
58 Mr Brown gave Mr Peters exercises which he did but also saw the need for more formal physiotherapy.
59 Mr Brown did not see him returning to his pre-injury employment as a storeman:[24]
“I do not anticipate that he will ever regain full function. He is unlikely to be able to lift any more than 5 kg when required to do this on a regular basis. Regular lifting will irritate the nerves into his upper limb (sic.) and places him at further risk of additional disc injury due to the instability in his neck. He will not be suitable for jobs involving frequent turning of the head, lifting and manipulation of the arms.
[24]At p 4.
60 Mr Brown thought there would be deterioration in Mr Peters’ cervical and thoracic spines. He was at greater risk of arm and shoulder injuries due to muscle wasting and weakness and postural issues with increasing pain and disability in the spine due to progressing osteoarthritis.
CoWork
61 Among other things, CoWork Pty Ltd provides vocational assessments. One of its assessors, Rebekah Raftopoulos, provided a detailed report.[25] Based on the contents of seven medical reports, she assumed an incapacity for his pre-injury work but a capacity for suitable work which would not aggravate his neck and the condition of his arms. After meeting with Mr Peters, she proposed as examples of suitable alternative occupations -- warehouse administrator/supervisor; independent courier/delivery driver/take-away food, pharmacy, pathology; and a youth worker. Aspects of her assessment appear in other parts of these reasons.
[25]Dated 28 January 2020.
Slesenger
62 Joseph Slesenger is an occupational physician. He examined Mr Peters twice, on 20 May 2019 and 15 January 2020.
63 At his first, Dr Slesenger recorded Mr Peters telling him of residual neck pain, particularly when relaxing his shoulders, pain in both shoulders, occasional pain in both forearms, numbness in the left thumb and index finger with activity, residual numbness in his left forearm and residual right-sided headaches. He was seeing his general practitioner, taking up to two tablets of Lyrica daily and Ventolin for asthma and attending a physiotherapist twice weekly. He can drive an automatic car for up to 60 minutes.
64 Dr Slesenger diagnosed a mechanical injury to cervical spine and aggravation of degenerative disease of the cervical spine, followed by C5-6 and C6-7 anterior cervical discectomy and interbody fusion, rhizolysis C6 and C7 nerve roots and intersegmental fixation C5–C7. Following surgery, Mr Peters was left with chronic neck pain, bilateral radiating symptoms and radiating symptoms into right occiput. Mr Peters was nearing maximum medical improvement with the risk of deterioration with the development of degenerative change above and below the site of the fusion. He retained a capacity for work with restrictions -- no pushing, pulling, carrying or lifting over 5 kilograms; no sustained forward reaching; and no repetitive neck tasks.
65 Dr Slesenger considered Mr Peters was working outside his capacity because the return to work arrangements were not adhered to. If they were adhered to, he could increase his hours to pre-injury levels but could not return to pre-injury duties. He had the capacity for modified and alternative duties and suggested Mr Peters consider alternative employment (for example, light packing or light assembly work).
66 At his second examination, Dr Slesenger considered he now reached maximum medical improvement with the risk of degenerative changes distal to the site of the fusion.
67 Mr Peters was unlikely to return to his pre-injury job. He had a capacity for work, adopting the same restrictions as before, but adding no repetitive shoulder tasks and qualifying the neck tasks, particularly repetitive flexion and rotation. He advised against forklift driving. There was no evidence of functional overlay.
68 Dr Slesenger provided a third report.[26] He was given the Vocational Assessment & Labour Market Analysis Report dated 28 January 2020 and Mr Peters’ affidavit sworn 14 March 2019.
[26]Dated 31 January 2020.
69 He considered three suggested jobs and commented on each:
(a) warehouse administrator/supervisor – “I am generally optimistic that he could return to work with the restrictions outlined above. There are job tasks underneath this job title that could lie outside his capacity limits (in smaller warehouse facilities workers performing this role are often required to multitask and perform general warehouse duties) and I recommend a worksite visit.”
(b) independent courier/delivery driver (Take-Away, Food, Pharmacy, Pathology) – “I am generally optimistic that he could return to work in this role; however, I recommend a worksite visit to ensure that he is not required to perform tasks outside his capacity limits (manoeuvring multipacks).”
(c) youth worker – “he could return to work with restrictions outlined above”.
70 Dr Slesenger said he could take up these roles immediately, starting at four hours a day, five days a week rising to his pre-injury hours provided there was adherence to the restrictions.
Dooley
71 Michael Dooley is an orthopaedic surgeon who examined Mr Peters on 10 December 2019.
72 Mr Dooley diagnosed an aggravation of the underlying degenerative disc disease of the cervical spine region during the course of his work. With the natural evolution of the underlying condition caused significant arm pain in relation to foraminal stenosis and nerve root compression. Orthopaedically, his condition had stabilised. He will experience some intermittent neck and arm pain but his orthopaedic condition will not deteriorate over and above the natural evolution of his underlying degenerative disc disease.
73 Orthopaedically, he could not carry out his pre-injury duties. He has the physical capacity to carry out light physical work and clerical duties. He cannot carry out regular heavy physical work or work that involved a lot of activity at and above head level.
74 Mr Dooley considered Mr Peters a genuine historian.
75 In a subsequent report,[27] the defendant’s solicitors gave Mr Dooley a copy of the Work Able vocational Assessment Report, dated 24 October 2019, and asked him whether Mr Peters had the capacity to perform certain employments. Mr Dooley considered he had the capacity to carry out the duties of car park attendant, customer service representative, booking clerk in a warehouse and a parking inspector. He ruled out meter reading as this often involved the reader having to bend into awkward postures and twist and turn their neck regularly. A return to suitable work needed to be graduated but, ultimately, Mr Peters has the physical capacity to work full-time.
[27]Report dated 28 January 2020.
76 In another report, Mr Dooley commented on another vocational assessment.[28] He considered Mr Peters had the physical capacity to carry out the duties of warehouse administrator/supervisor and independent courier/delivery driver. He was uncertain about the job of youth worker:
“His ability to work as a youth worker would depend on whether or not residential duties would need to be undertaken in terms of supervising clients after hours and in home facilities etc. My experience with these types of activities is that physical dispute/intervention can be required in these jobs. Mr Peters would not have the ability to work in such a situation.”
[28]Report dated 4 February 2020.
77 Again, Mr Dooley said any return to work needed to be on a graduated basis. However, he modified his earlier expectation of a physical capacity to work full-time ultimately to:
“I believe that it would be very difficult to estimate how many hours per week Mr Peters could ultimately work until he did return to suitable work and his progress could be observed on a graduated basis.”
Barton
78 David Barton is an occupational physician. He examined Mr Peters twice in 2018.
79 At the time of the first examination, in February, Mr Peters had stopped working about six weeks earlier due with problems in his left shoulder and arms. His general practitioner referred him to Mr Vellore.
80 By comparing MRI scans, Dr Barton saw degenerative changes in the neck, which were deteriorating. He tentatively related those changes to his work but could say little else until the outcome of the neurosurgeon’s examination.
81 Dr Barton re-examined Mr Peters on 21 November.[29] By then, he had had his neck surgery and had returned to work, four hours a day, three days a week doing a range of lighter work, mainly with a computer at a standing desk.
[29]Report dated 22 November 2018.
82 He had a near full range of neck movements with normal muscle power and reflexes in his arms. There was a small area of reduced sensation in the right forearm and around the tips of his left thumb and index finger.
83 Although there were persisting symptoms following the surgery, Dr Barton expected continued improvement and the ability to reach more normal hours and duties. He could not say when. He considered the return to work plan as reasonable and said Mr Peters should avoid lifting heavy weights and avoid looking and reaching overhead.
84 Subsequently, without a further examination, the defendant’s solicitors asked Dr Barton to comment on at least two questions.[30] His response to one:
“When I saw the worker in 2018 he was working for four hours three days a week doing a variety of computer duties at a standing desk. I would have expected, based on his improvement that he would have over the next few months been able to increase to full-time hours continuing the same duties. I would have expected him to have been able to do a bit more around the warehouse where he worked. Accordingly, assuming he has continued to improve and participated in a return to work program he should be able to do full-time work at present. However I note that the other jobs listed included youth work and independent courier delivery driver. I do not consider him to have the training to work as a youth worker. Also doing courier work could be quite challenging in regards to lifting and handling delivery items in and out of the back of a van and into various shop locations. This may involve a trolley or a degree of awkward manual handling. Accordingly I would see him being able to currently work full-time as a warehouse administrator and supervisor but not the other jobs.”
[30]Report dated 4 February 2020.
Boffa
85 Umberto Boffa is an occupational physician. He examined Mr Peters on 16 October 2019. The defendant’s solicitor provided him with several documents including a report from Work Able entitled “Transferable Skills Analysis” (Analysis report).
86 Mr Peters told Associate Professor Boffa of neck pain, right sided occipital and periorbital headaches. The pain in his arms had improved but had altered sensation in the right thumb and left flexor forearm. The examination revealed some reduction in the range of neck movements. The arms were normal.
87 He considered Mr Peters capable of returning to work at his pre-injury hours but not his pre-injury duties. Referring to the Analysis report, he was fit for the roles of parking inspector and meter reader but not the other production and warehouse roles. He also considered Mr Peters fit for security gatehouse, concierge and control room duties. Without more, I do not consider fitness for those last three roles as translating into suitability for carpark attendant, customer service representative or booking clerk.
88 To a question asked by the solicitor, he said:
“Neck pain and limited functional tolerances, training and experience are barriers to return to suitable work to be overcome by medical restrictions and retraining.”
Legal considerations
89 Since the disputed issue in this case is now confined to loss of earning capacity consequence, the legal considerations are also confined. The granting of leave is governed by:
(a) fundamentally, Mr Peters must be a “worker”, which he is. He must be entitled to compensation in respect of an injury arising out of or in the course of employment with Radio Frequency. Again, he is. The injury is the aggravation of a pre-existing injury, namely, degenerative disc disease of the cervical spine. Despite the view of Mr Dooley, the effect of the aggravation continues and will do so for the foreseeable future;
(b) I must consider the loss of earning capacity consequence separately from the pain and suffering consequence;
(c) 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, must be fairly described as being at least very considerable;[31]
[31]S134AB(38)(c).
(d) additionally, Mr Peters must prove he suffered a loss of earning capacity of 40 per cent or more, measured as set out in s134AB(38)(f) and he would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per cent or more.[32] “Permanent” means “likely to last for the foreseeable future”;[33]
[32]See De Bono v Victorian Workcover Authority [2019] VSCA 85 at [47].
[33]Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 at [33].
(e) I must ignore any psychological or psychiatric consequences of the injury;[34]
(f) I must consider the possibility of rehabilitation or retraining and in assessing the amount Mr Peters is capable of earning in suitable employment. I must take into account what he would have been able to earn if he made reasonable attempts at rehabilitation and retraining.[35]
[34]S134AB(38(h).
[35]S134AB(38)(g).
90 Mr Peters’ counsel drew my attention to passages from Richter v Driscoll[36] where Ashley and Kaye JJA examined the meaning of “no current work capacity”. First, their Honours noted the definition of that expression in the Act focusses upon an injured worker’s inability to engage in employment. Second, the word “employment” involves returning to work as a settled or established member of the wage earning workforce, in a meaningful way so as to obliterate a continuing need for weekly payments of compensation.[37]
[36][2016] VSCA 142.
[37]At paragraph 75.
Discussion
91 Mr Peters is a truthful and reliable witness. There was nothing in his evidence or the way he gave it which raised a doubt about his truthfulness or reliability. In this case, reliability extends to his capacity for self-assessment.
92 Sadly, Mr Peters has been left with little physical capacity for work. He tried 16.5 hours a week and could not do the duties required of him. He persisted because he did not want to lose his job. I have earlier quoted his description of his duties. At the time of stopping work, his 16.5 hours were spread across Monday, Wednesday and Thursday between 8.00am and 2.00pm with 30 minutes for lunch and other breaks when required. He took breaks but they consisted of rising from his seat and walking around.
93 Mr Peters did say he would have continued with Radio Frequency if his job remained open. To remain open, the job needed to be scaled back to nine hours per week initially and not 16.5 hours per week.
94 Mr Peters has limited formal education. He left school as soon as he could. Whether due to his limited education, he can read but is unable to write what he means and spell the words he does use. He does not retain what he has been taught. He tried the MYOB course and failed comprehensively. He has not worked outside the warehouse environment. He has tried retraining since 2017.
95 Mr Peters cannot return to his pre-injury duties. On that, the medical and other practitioners are agreed except for Dr Barton. Radio Frequency provided him with employment. It never rose above 20 hours per week and was usually much less. His work was subject to significant limitations but still left Mr Peters in a bad way at the end of his working day. Work is unsuitable if its performance has that effect on the worker. However, Mr Peters says he could manage 12 hours per week in that employment, which was what he did after returning to work in 2018. This brings one back to what he was doing in 2019. He was counting stock and entering data into a computer. These tasks included holding his head in a fixed position, twisting his head to read information on labels and typing on a keyboard.
96 These are tasks involving little physical work for any lifting involves lightweight objects. Nevertheless, they profoundly affected him physically as well as his experience of headaches. He persisted because he did not want to lose his job. His self-assessment may be optimistic while Dr Rizk is cautious in suggesting nine hours a week as a trial. Whether it is 9 or 12 or lies somewhere between, it represents a very diminished capacity for work.
97 Pausing there, the figure of 12 hours is not “plucked out of the air”, Mr Peters said more than once, they were the hours he worked when restarting in 2018 and, with restrictions, he coped.
98 Dr Slesenger, Associate Professor Boffa and Mr Dooley suggested a graduated return to work. The first two considered Mr Peters could return pre-injury working hours as did Dr Barton. Mr Dooley would wait and see. Mr Peters has already gone through a graduated return to work starting in 2018 and it did not work. A return to work on 9 hours, rising to 12 would be feasible but 12 would be the upper limit. A return to pre-injury hours, in the light of past experience, is unrealistic.
99 The loss of earning capacity consequence is very considerable where someone has gone from the fully functional to the barely functional.
Meter reader
100 A meter reader reads electric, gas or water meters, records their usage, inspects the meters and their connections for defects and damage and reports irregularities.[38] Associate Professor Boffa says he can do this job. Mr Dooley says he cannot as the job often involved bending into awkward postures and twisting and turning the neck regularly. In effect, Mr Peters echoes that view by saying he would struggle because “it involves a lot of crouching, bending and looking at meters including stooping”. Based on seeing meter readers he added “twisting past bushes”. He has seen the person who reads his meter and believes he struggles to reach their meter.[39] Mr Peters is unsuited for this job.
[38]Defendant’s Court Book at p 109.
[39]Transcript at p 36.
Car parking attendant
101 Mr Dooley says Mr Peters can do this job. Mr Peters says he cannot. One of the duties for this job is “park and retrieve automobiles for customers in parking lots, storage garages, or new car lots”.[40] He says that duty requires getting in and out of cars to move them. He finds turning his head to park his own car hurts his neck, which is the reason he bought a new car. There are other aspects to this job. An inability to park and retrieve cars is important. I accept that Mr Peters could not do those tasks repetitively.
[40]Defendant’s Court Book at p 104.
102 Another aspect of the job is receiving payment. That involves “light stretching and/or twisting movements are likely to be required frequently when receiving payment and giving change”. Mr Peters did not think he could do this. Given the effect of his duties until June 2019, these movements, done repetitively, would cause him increased pain. His assessment is likely to be correct. Overall, Mr Peters is unsuited to this job.
Customer service representative
103 Mr Dooley says he can do this job physically. Physically, Mr Peters does not say he cannot do it, at least part-time. However, he is regularly moody and irritable because of pain and this is in the context of not working. Gillian Peters mentions his greater irritability when working in 2018 and 2019 on light work and reduced hours. Since he would deal with all sorts of clients for his employer where pleasantness is essential, moodiness and irritability are disqualifying attributes. I doubt answering phones is beyond him but doing so appropriately on a consistent basis is. His inability to write what he means may make preparing sales reports problematic. His inability to study would rule out acquiring one or other of the certificates needed in the absence of occupational experience. I consider he is unsuitable for this job.
Booking clerk
104 Mr Dooley says he can do it. Mr Peters gives the same reasons for his inability as he gave for customer service representative: doing paperwork, answering phones, taking file notes. Its duties are sedentary with some examining of the contents of containers.
105 When making those comments, I suspect Mr Peters saw this job as somewhat similar to the job he did with his employer in 2018 and 2019, but the list of demands places it beyond his physical capacity.[41] The concept of “booking clerk” covers a range of particular jobs involving stretching, twisting, climbing, lifting, bending, squatting and couching from the occasional to the frequent. No doubt, any particular job would involve one or more of those activities frequently. Apart from the writing side and his mood, the physical side would be more than he could cope with. Overall, it is unsuitable.
[41]Defendant’s Court Book at p 107.
Parking inspector
106 Mr Dooley and Associate Professor Boffa say Mr Peters can do this job. Physically, Mr Peters says[42]:
“I would struggle with this job especially full time because it involves twisting my head too much including to look up at traffic signs and under cars, as well as lifting my hands above head regularly to take photos of signs and things. I’d be using my arms a lot. When I have to do things that involve twisting my head, it causes me pain and my concentration becomes bad. I have to try to remember to turn my whole body now, and not just my head…”
[42]Affidavit affirmed on 6 February 2020 at [26c].
107 The combination of stretching, twisting, bending squatting and crouching, even if individually and occasionally, would be beyond his physical capacity on all but a part-time basis.[43]
[43]For duties and demands see defendant’s court book at p 108.
Warehouse Administrator/Supervisor
108 The typical duties of this job are described in the CoWork report: counting incoming stock and reconciling the count with requisitions; updating inventory and stock location records; and establishing and coordinating the operating procedures for receiving, handling, storing and shipping goods. The report attaches an advertisement for a distribution centre warehouse supervisor in a “fast moving consumer goods” retail business, managing at least 10 employees. Although the list of key responsibilities does not mention “hands on” work”, it is implicit in the statement that a forklift licence would be beneficial.
109 Dr Slesenger was “generally optimistic” about Mr Peters doing this job with two qualifications: subject to the physical restrictions he outlined; and the tasks involved vary with workplaces and some tasks could lie outside his capacity. He recommended a worksite visit to determine whether this was so. Mr Dooley expressed no reservations. Dr Barton thought he could now work full-time as a warehouse administrator and supervisor. Associate Professor Boffa said he was unfit for warehouse roles.
110 Mr Peters believed he could not:[44] “Working as a supervisor requires you to do hands on work. The actual job description says that a forklift licence is beneficial, but I’m not allowed to drive one as it is beyond my restrictions…”. It is noteworthy that Mr Peters cannot now drive a forklift truck because of the “bouncing” and the need to twist his neck to be aware of everything around him.
[44]Affidavit affirmed 6 February 2020 at [28].
111 Although Mr Peters has extensive experience in warehouses and several years in charge of a section, I accept his understanding of the reality of such positions as involving hands-on work. The CoWork author commented: “Mr Peters is encouraged to identify (usually found in larger organisations) which do not require the Warehouse Administrator/Supervisor to perform the hands-on role of Storepersons from time to time”.
112 Between 2013 and 2016, Mr Peters managed a section despite his injury. Even if he avoided any of the physical work of a store person, it leaves the clerical work which he could not do in 2018 and 2019 except on very restricted hours. I will return to the issue of hours.
Courier/delivery driver
113 Mr Dooley thought he could do it. Dr Barton did not. Associate Professor Boffa was not asked. Dr Slesenger was generally optimistic but recommended a worksite inspection to ensure he was not required to perform tasks outside his capacity.
114 Mr Peters said:
“I also don’t believe that I could work in anything involving driving. This job says I would have to drive between 150-300 km a day. I struggle with driving after about half an hour, my hands become sore. I couldn’t drive for a full day like the Medical Courier job advertisement says. The Medical Courier job advertisement also says I need three years’ experience as a courier to get the job, and I have no experience as a courier. The index courier job says I need a clean driving history – I have previously lost my license for drink driving.”
115 The 150-300 kilometres per day comes from the CoWork assessment of a particular medical courier employed by Gribbles Pathology. The courier, aged 60, was watched on her third run of the day, lasting about two hours. The assessment looked at the physical requirements of the job. The driver needs to be alert for driving 150-300 kilometres per day. Driving in Melbourne requires alertness as well as the turning of the head regularly, especially for Mr Peters to the right; he avoids driving in heavy traffic. Mr Peters could not turn his head regularly or remain alert even if the period was far shorter and the distances travelled were far less.
Youth worker
116 I daresay the idea of a youth worker came from Mr Peters saying he is good with children, has a Koori background and wants to help the children in the Mullum Mullum Youth Program.
117 Mr Dooley and Dr Barton thought he could not do this role. Mr Dooley raised the possibility of physical intervention. The failure of the CoWork report to mention this aspect is just that, a failure. Youth work covers many roles and Mr Dooley is appropriately identifying one.
118 Dr Slesenger thought he could but with the physical restrictions he outlined. A prerequisite for the job is a Certificate IV in Youth Work. Looking at the syllabus from the Chisholm TAFE,[45] Mr Peters would not successfully complete this 12 month course for he failed at his attempt learning a form of MYOB and now cannot retain what he reads or is taught. As he said in cross-examination[46]:
“…So, that’s the reason why I’m a storeman because things just don’t stay there, they just sort of go in and straight out, so.”
[45]Defendant’s Court Book at p 160.
[46]Transcript at p 41.
119 I doubt his inability is due to a reason where he could obtain disability support.[47] He was a poor student when young, leaving school as soon as he could. He remains one many years later. He is unsuited to the job of a youth worker for he would never obtain the basic qualification.
[47]See Defendant’s Court Book at p 157.
120 Overall, I have identified aspects of these various jobs which would give Mr Peters most difficulty. There are other aspects of each which would cause him pain and discomfort even over shorter periods.
Retraining and rehabilitation
121 Mr Peters has made reasonable attempts at rehabilitation and retraining. He underwent the discectomy and fusion. He returned to work in 2018 and 2019. Apart of working with the rehabilitation specialist, Work Able, he tried the MYOB course, unsuccessfully. It was suggested he undertake a literacy course. His problem is partly that. It is also retaining what he has been taught. As he said in the passage quoted above, things go in and straight out. Similarly, there would be no point in approaching the Authority to fund his undertaking a Certificate IV in Youth Work for it would be a futile exercise. If funded, he would fail.
COPD
122 Mr Peters was diagnosed with chronic obstructive pulmonary disease in May 2019. The condition does not affect his ability to walk. It would affect his ability to do heavy jobs but that work is beyond his physical capacity anyway. There was an earlier diagnosis of emphysema. Its effect on his activities is marginal.
Calculations
123 Adopting the defendant’s calculations, the average of Mr Peters’ gross income for the financial years of 2012, 2013 and 2014 is $50,873. This figure most fairly represents Mr Peters’ earning capacity had his injury not occurred. Sixty per cent of that figure is $30,524 or $587 gross per week.
Serious injury
124 As to the first stage of the test, Mr Peters has very little capacity for work left. Although not satisfying the definition of “no current work capacity”, he is close. Mr Peters harked back to his weekly hours: 12 on modified duties when he returned to work in 2018. Even Dr Rizk is not so bold, certifying nine hours per week as a trial. Mr Peters satisfies the test of at least very considerable.
125 As to the second stage, adopting 12 hours per week in relation to a delivery courier and warehouse administrator/supervisor, then the amount he could earn is between $254.04 and $378.96 for the former and between $266.04 and $440.16 for the latter. This is less than the figure of $587 gross per week. He will continue permanently to have this loss of earning capacity which will produce a financial loss of 40 per cent or more.
126 Although the role of a “lollipop” person was raised in evidence, I doubt it was a serious suggestion. There was no evidence of what it pays or the hours available.
127 Mr Peters satisfies the second stage.
Conclusion
128 I am satisfied Mr Peters has a serious injury where the loss of earning capacity consequence is concerned and will grant him leave to bring a claim for damages. The pain and suffering consequence is conceded.
0
3
0