Pittorino v VWA
[2023] VCC 1913
•30 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No.CI-23-00478
| CHRISTIAN PITTORINO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 August 2023 | |
DATE OF JUDGMENT: | 30 October 2023 | |
CASE MAY BE CITED AS: | Pittorino v VWA | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1913 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Workplace accident – Serious injury application –– Whether alternative employment proposals represent suitable employment – credibility – whether video surveillance consistent with plaintiff’s claimed incapacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited: Abbas v Transport Accident Commission [2015] VSCA 217
Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: The plaintiff’s application is granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | G Chancellor & C Shambrook | Maurice Blackburn |
| For the Defendant | A Saunders | Hall and Wilcox |
HER HONOUR:
1The plaintiff, Mr Christian Pittorino, alleges he suffered a back injury on 29 September 2017 while at work. He says on that day he was carrying heavy mirrors for installation as part of a team. The mirrors were awkward to carry and had to be carried down three flights of stairs. Due to his position, he bore the brunt of the weight of the mirrors. He felt pain in his lower back.
2Although he was able to continue to work that day, his pain worsened. He had some time off and then returned to work on modified duties. His condition continued to worsen and by mid-2019 he was working only 12 hours a week on light duties. He was subsequently terminated in September 2019.
3He makes a claim for leave to bring proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for a serious injury certificate for pain and suffering and pecuniary loss. He brings the claim under ss(a) and (c) of the definition of “serious injury” on the basis of both his physical injury, which is a loss of function of the spine, and psychiatric injuries.
4The plaintiff must establish that he has suffered physical injuries that amount to a permanent serious impairment or loss of a body function that satisfies the test of being “more than significant or marked”, and as being “at least very considerable” when judged by comparison with other cases in the range of possible impairments or losses of body function.[1] Alternatively, or in addition, the plaintiff must establish that he has suffered a severe mental or behavioural disturbance or disorder which, when compared with other cases, may fairly be described as being more than serious to the extent of being severe.[2]
[1] Humphries & Anor v Poljak [1992] 2 VR 129 at 140
[2] Section 325(2)(d)
5The plaintiff relies on his affidavits sworn 14 September 2022 and 21 July 2023, as well as the opinions of various treating and medical experts. He also relies on an affidavit of Vincent Pittorino dated 21 July 2023 and Matthew Ferretti dated 27 July 2023.[3]
[3] Plaintiff’s Court Book (“PCB”) 5-23
6The defendant relies on the reports of a number of medico-legal experts[4] which will be dealt with in greater detail below. I have read all the material tendered but will refer to it only so far as it is necessary to explain these reasons.
[4] Defendant’s Court Book (“DCB”) 9-34
7The plaintiff attended in person and was cross-examined. None of the medical witnesses were required for cross-examination and no other witness was called.
8The plaintiff’s credibility was in issue. The defendant submitted that the plaintiff was unreliable, that his account could not be accepted, and that the objective evidence must be preferred over his evidence. The defendant further submitted that the plaintiff has exaggerated the consequences of his injuries, and that these exaggerations have infected the medical opinions upon which he relies.
9The defendant concedes that Mr Pittorino can no longer work fulltime as a carpenter. However, it says Mr Pittorino retains a capacity to work fulltime in similar employment where he would earn 60% or more of his “without injury” earnings.
10The issues in this case are:
(a) Whether Mr Pittorino’s “with injury” earning capacity is 60% or more of his “without injury” earning capacity; and, if not
(b) Whether the consequences of Mr Pittorino’s physical or psychiatric injury amount to a serious injury.
11For the reasons that follow, I am satisfied that Mr Pittorino does not have capacity to work full time or part time in an occupation that would result in him earning at least 60% of his “without injury” earnings. The loss of his capacity to work in a field that would enable him to earn at least 60% of his “without injury” earnings is a consequence for him that meets the test of serious injury. Accordingly, he is granted leave to commence common law proceedings for damages for serious injury and pecuniary loss.
Background
12There is no significant dispute in relation to Mr Pittorino’s background and medical history.
13He has worked as a carpenter since about 2004. He did not complete his final module of his apprenticeship and therefore does not have formal qualifications. Nevertheless from about 2006 to 2012 he ran his own building business. He started with NRG Projects in 2012 as a subcontractor and subsequently became an employee.
14In his mid 20’s he was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). He took Ritalin for this for about seven years. He has otherwise had a problematic elbow and knee in the past.
15After the incident in September 2017, he hoped his back would get better with rest. He did not improve and saw his doctor in December 2017. X-ray and subsequent MRI showed aggravated lumbosacral spondylosis and central L5/S1 disc prolapse.[5][JC(1] There is no dispute between the parties about the diagnosis.
[5] DCB 9-23; PCB 25-28
16Since his injury he has been prescribed Tramal for pain, but experienced negative side effects. He was then prescribed THC to help with pain. He has struggled with the impact of his ADHD and has recently recommenced Ritalin. In the context of recommencing that medication, he has temporarily ceased THC. This means he is currently taking no medication for his back pain.
17He describes his back pain as constant, daily pain.[6] He has flare ups which he experiences as a burning pain down his spine into his hips. Lifting weights over five kilograms worsens his pain.[7]
[6] Transcript (“T”) 48 Line (“L”)1
[7] PCB 9
18A few times a week he gets worsening pain down his left leg into his toes. He has moments of loss of sensation in his back. Standing for too long, particularly on a hard surface, walking for long periods and sitting for long periods all worsen his back pain.[8] He has disturbed sleep. He wakes with a stiff, sore back every day.
[8] T70 L4
19He says his mental health has significantly deteriorated as a result of being in pain and being unable to work.[9] His ADHD is worse and his mind is constantly racing because he no longer has the physical outlet his employment previously provided.
[9] T73 L8
20At the time of his injury the parties agree that his earning capacity was $148,029 per annum.[10]
[10] T6 L2; T6 L11
21Since the injury Mr Pittorino has not engaged in any paid work. He has helped out his cousin who runs a joinery business on a number of occasions and he also goes to his cousin’s workplace for company and to pass the time. He has helped out a friend in a similar fashion. He has applied for a vast number of jobs, but has been unsuccessful. He has completed two short courses of four days each in Computer Aided Design (“CAD”), through Holmesglen TAFE.[11]
[11] PCB 16
Credit
22Mr Pittorino’s credit was put squarely in issue. The defendant submitted that Mr Pittorino was unmotivated to find paid work because he was in receipt of income protection payments, and he has been engaged in “work-like” activity for his cousin which he has underplayed in his affidavits.
23The defendant relied on surveillance reports and footage shown in Court, which showed Mr Pittorino riding a motorbike and sitting in a chair for 26 minutes, without getting up. The defendant submitted this was at odds with his evidence that sitting for extended periods caused him pain.
24Mr Pittorino gave his evidence in a straightforward, frank manner. There was no attempt to dissemble, argue or refuse to make appropriate concessions. He agreed he had been somewhat surprised by the evidence of the extent of involvement he had with his cousin’s business. This was largely in the form of references to that involvement in medical records of his attendances on doctors.
25However, I do not consider any of these matters damaged Mr Pittorino’s credibility. His evidence about what he was doing while minding his cousin’s business does not contradict his evidence about the limitations he experiences as a result of the injury.
26The assistance he has provided his cousin, and another friend, Mr Rogic, included:
(a) taking deliveries;
(b) sending and receiving emails;
(c) printing out plans and providing them to his brother and nephew who also help out in the cousin’s business; and
(d) overseeing the general running of the business for relatively short periods of time.
27From the medical records it is apparent that even this level of assistance caused him a significant degree of stress and worry.
28The surveillance footage did not undermine his credibility. It was put to him that the chair he was sitting on caused him to sit in a slouched position of the type which he had said caused him pain. He disagreed and it was apparent that the seated position was a reclined position at an approximate 45-degree angle rather than a slouched position. He said he had bought the chair specifically because it had airbags and a reclined position which alleviated his back pain.[12] His explanation was logical and believable and I accept it.
[12] T47 L3
29It was put to him that he had done carpentry work for which he had received payment. His bank records were tendered for this purpose. Mr Pittorino denied doing carpentry work and explained the payment was for the raw materials which he had bought, from his own funds, and was merely a re-imbursement, and that his brother had done the actual joinery work.
30He denied the receipt of income protection had caused him to not be motivated to look for work. I accept that, in circumstances where he had applied for numerous jobs without success and where a previously interested potential employer ceased being interested in engaging him after he disclosed his work limitations, it would be difficult to continue to apply for jobs. I do not consider this is a factor that diminishes his credibility.
31I am satisfied that Mr Pittorino was a credible witness, doing his best to answer questions frankly and honestly. I have no reason to doubt the reliability of his evidence.
Current work capacity
32The dispute in this case is primarily whether the plaintiff has a current work capacity that would enable him to earn 60% or more of his without injury earnings, being at least $88,817.
33The defendant says if I am satisfied that Mr Pittorino does not meet the test for loss of earning capacity, I should also find that he does not meet the test for pain and suffering consequences, given he is currently taking no medication for his pain, has had no surgery and requires no active treatment.
34The defendant says Mr Pittorino is fit for full time work albeit not in his former occupation.
35Mr Pittorino was assessed for the defendant by occupational physician Dr Umberto Boffa.
36Dr Boffa considered Mr Pittorino fit for a graduated return to work, commencing with 4-hour shifts on 3 non-contiguous days per week, in duties that allow him free movement, and avoid repetitive bending, twisting, pushing, pulling, lifting, and carrying more than 10kg.[13]
[13] DCB 22
37The defendant identified four roles it said represented suitable employment for Mr Pittorino, having regard to Dr Boffa’s opinion of his limitations.[14] These were:
(a) Architectural Draftsperson;
(b) Facilities Administrator;
(c) Motor Vehicle Parts Interpreter; and
(d) Hire Controller.
[14] Report of vocational consultant Robyn Willett, DCB 35
38In addition, the defendant’s occupational physician, Dr Umberto Boffa, considered Mr Pittorino had capacity to work as a Weighbridge Operator and as a Security Gatehouse attendant.[15][JC(2]
[15]DCB 23
39Of the jobs identified by Ms Willett as representing “suitable employment”, only one would potentially attract a salary that could represent 60% or more of Mr Pittorino’s without injury earnings, being the role of an architectural draftsperson. Neither of the roles as a weighbridge operator or a security gatehouse attendant would attract salaries in the vicinity of 60% of Mr Pittorino’s “without-injury” earnings.
40According to Ms Willett, the average gross weekly wage for an architectural draftsperson is $1,751 which amounts to an annual income of $91,052. The defendant says the average weekly earnings is the appropriate figure to consider, given that Mr Pittorino is a relatively young man of 43 and would be expected to increase his earning capacity during the remainder of his working years.
41Although Ms Willett has identified architectural draftsperson as suitable employment for the plaintiff, it appears her assessment that this is suitable employment is based on the fact that Mr Pittorino has completed two short CAD courses. She says:
“Mr Pittorino possesses sound mechanical knowledge which he could use in administrative and/or customer service roles which accommodate his physical tolerances. Mr Pittorino has more recently completed training in AutoCAD (Computer Aided Design) which gives rise to roles which fall under the occupation of Architectural Draftsperson. Specifically, roles in kitchen and cabinet making design also fall under this occupation and a review of job advertisements on Seek.com identify vacancies within this current labour market. Based upon Mr Pittorino’s education, work history, transferable skills and based on opinions that Mr Pittorino retains a capacity for suitable employment, the following work options have been identified as suitable for Mr Pittorino”[16]
[16]DCB 41
42However, apart from this general assessment, she has provided no detailed analysis of the work involved or qualifications required to fulfill the job of architectural draftsperson. The defendant nevertheless maintains Mr Pittorino is qualified for this work because he applied for a number of jobs as an architectural draftsperson and did this work for his cousin, albeit on a very limited basis.
Is the role of architectural draftsperson “suitable employment” for Mr Pittorino?
43Vocational assessor Ms Suzanne George also assessed the position of architectural draftsperson as potential alternative employment for the plaintiff. She said Mr Pittorino would need to undertake further study to be qualified for such a position and that the skills required for the job were equivalent to an Australian Qualification Framework Advanced Diploma of Building Design[17]. She considered he would struggle to participate in higher-level study due to both his injury and his underlying ADHD diagnosis.
[17]PCB 86
44Mr Pittorino says he tried to do some CAD design work for his cousin, but struggled due to the limitations of his skill set. It was put to him that the courses he had done were sufficient to do work for his cousin. He said:
“Not really. He allowed me to practice because the course that I did was extremely basic so he allowed me to practice some of his stuff to get more experience.”[18]
[18]T15 L7
45He explained that his cousin had given him already completed jobs and allowed Mr Pittorino to redraw them in a similar way using CAD. He did these tasks at his own pace with reference materials. This seems to me to be a far cry from using CAD to design from scratch under deadline.
46The defendant submitted that Mr Pittorino had applied for numerous jobs, including jobs as a joinery draftsperson, and that he would not apply for a job that he was unable to do. Mr Pittorino said
“Well, at the time I was asked to apply for anything and everything that I thought was related to anything that I've ever done.”[19]_
[19]T17 L10-12
47He denied that he was qualified for all the jobs he had applied for and tendered an advertisement for an architectural draftsperson which would attract a salary of $90,000 - $95,000 per year. That job required experience in construction technical details – cabinetry, working drawings, REVIT, Enscape and CAD as well as the capacity to apply construction code, and knowledge of regulations around timber framing, windows, waterproofing, electrical and fire rating, acoustics, ventilation and energy efficiency. Mr Pittorino said he did not have the skill set for such an architectural design role. He was unsure of the full skill set required but said:
“I just know that the training involved, because I think architectural design you have to know all the legalities and the council permits and so on, that side of things, it's not just drawing something. You have to know engineering side of things, how to draw things. You can't just do that basic course and draw something, you have to know how things are built”.[20]
[20]T48 L17-23
48He thought that to be properly qualified was a four-year course, he was unsure whether this was a TAFE or University course. [21] He[JC(3] said that he is “not good” with computers and struggles to focus on computers and with the sustained siting required. He describes himself as a manual worker who has not worked in an office.[22]
[21] T 48 L28
[22]PCB 12-13
49Given that the defendant accepts that Mr Pittorino cannot return to his former occupation of carpenter, it is for the defendant to establish that the role of architectural draftsperson represents suitable alternative employment.
50The report of Ms Willett does not set out the necessary qualifications for an architectural draftsperson, and does not satisfy me that Mr Pittorino has those qualifications or could readily obtain those qualifications.
51I am not persuaded on the evidence that Mr Pittorino has the skill set to be an architectural draftsperson. His experience is limited to a few weeks trying to re-create drawings of joinery for his cousin, done purely for practice. He has done short courses of four days in 2D and 3D CAD. He applied for, but did not get, a number of architectural draftsperson jobs. I do not accept that applying for jobs is evidence that he is qualified for, or has, the required skill set for those jobs.
52The defendant has failed to discharge its obligation to establish that an architectural draftsperson is suitable current or future employment for the plaintiff.
What is the appropriate salary to attribute to Architectural Draftsperson
53However even if the defendant had satisfied me that Mr Pittorino could work as an architectural draftsperson, I am not persuaded that the appropriate salary to compare for the purposes of establishing pecuniary loss would be the average salary for an architectural draftsperson. Mr Pittorino would be entering the industry at the age of 43 with no experience in drafting and with limited computer skills.
54I accept Mr Pittorino’s submission that the appropriate salary for him in those circumstances would be the entry-level salary of $60,426.[23] This is less than 60% of Mr Pittorino’s without-injury earnings.
[23]PCB 117
Does Mr Pittorino have capacity for full time employment?
55I am not persuaded that Mr Pittorino has capacity for full time employment.
56The defendant submits that I should prefer the opinions of Dr Boffa and Dr Doig as being more realistic and more reflective of the true position given the great deal of “work-like” activity Mr Pittorino has engaged in.
57The defendant says Mr Pittorino’s treating general practitioner, Dr Pienkos, thought there was a high likelihood that Mr Pittorino’s symptoms would improve and his assessment as to work capacity is overly pessimistic given that, at the time of Mr Pittorino’s termination, he was working 12 hours a week and has been engaged in a good deal of “work-like” activity since then.
58On the other hand, Dr Awad, occupational physician, says Mr Pittorino has a work capacity of less than 25 hours a week.[24] Dr Lewis considers his work capacity is limited to three days a week and Dr Pienkos considers he is currently unable to work, but could have potential to return to work on three non-contiguous days a week.[25]
[24] PCB 103
[25] PCB 26
59I do not accept that the evidence discloses Mr Pittorino has been engaged in a “great deal of work-like activity”.[26] On his evidence which I accept, he has engaged in periods of unpaid work for his cousin which has been intermittent, has not involved manual labour, and has not been close to full time hours.
[26] T56 L16
60The work he has done on these occasions has not been anything like that required for a fulltime supervisor, factory manager, draftsperson or carpenter. It has essentially consisted of odd jobs, printing out documents, taking deliveries and, from time to time, ensuring that his brother and nephew were completing the work required.
Has Mr Pittorino suffered a pecuniary loss that meets the test?
61I am satisfied that Mr Pittorino has suffered a pecuniary loss that meets the test because his “with-injury” earnings are less than 60% of his “without injury” earnings. Accordingly, this amounts to a serious consequence for him and he is entitled to pursue a claim for damages for pain and suffering as well as pecuniary loss.
Does Mr Pittorino have a severe psychiatric injury
62There was no real focus on Mr Pittorino’s psychiatric injury during the hearing. There is some evidence of pre-existing psychiatric difficulties in the context of an earlier redundancy, though this was not explored in any detail by either party. Mr Pittorino also has an underlying diagnosis of ADHD and it is unclear how this interacts with his mental health.
63On the basis of the material before me, I could not be satisfied that Mr Pittorino meets the test for a severe psychiatric injury.
Is his inability to work as a carpenter a loss that is a serious consequence for Mr Pittorino?
64For completeness I will briefly deal with the argument made by the defendant that the loss of Mr Pittorino’s capacity to work in his former occupation as a carpenter is not a serious consequence for him as he retains the capacity to transition into work in the same or a related field which significantly lessens the pain and suffering consequences.
65The loss of work in one’s chosen field may represent a significant consequence for a worker and, even if alternative work can be found that does not meet the pecuniary loss test imposed by the legislation, the loss of a particular career may be such a significant consequence that it meets the serious injury test. I consider this to be such a case. Mr Pittorino gave evidence, which I accept, that before the injury, he would build things for family and friends, that he got a lot of enjoyment out of creating and building and home improvement.
66It has been accepted that the loss of a career or potential career in an occupation that provided enjoyment can be a significant consequence for a worker.[27]
[27] Abbas v Transport Accident Commission [2015] VSCA 217; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
67I consider the loss of the satisfaction of building and creating things with ones hands is a consequence of significance to Mr Pittorino and is not readily replaced by other work, however lucrative.
68Further, I am satisfied that, even if Mr Pittorino could work as an architectural draftsperson and earn $91,052 a year, he would still be experiencing a loss of nearly $57,000, a not insignificant loss to him that would go to the seriousness of the consequences for him.
69Accordingly, I am satisfied that, even if Mr Pittorino had not sustained pecuniary loss that meets the test, he would satisfy the criteria for serious injury.
70Mr Pittorino has leave to commence common law proceedings for damages for pain and suffering and pecuniary loss.
[JC(1]Whenever I put something in brackets like this I want it to be in the footnotes. Also look up the reports and date them
[JC(2]If this court book reference refers to Dr Boffa’s report that is fine. Please check. If it refers to the recover report then put that in the footnote.
[JC(3]Transcript references should be in footnotes
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