Pointer v Victorian WorkCover Authority
[2022] VCC 876
•20 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-02155
| KYLIE ANN POINTER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2022 | |
DATE OF JUDGMENT: | 20 June 2022 | |
CASE MAY BE CITED AS: | Pointer v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 876 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering not in dispute – assessed by Medical Panel as having capacity of 20 hours per week – willingness to work – plaintiff part-time worker at time of injury – whether earlier period working longer hours is appropriate measure of pre-injury earning capacity – whether plaintiff has satisfied onus of proof in relation to loss of earning capacity.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Acir v Frosster Pty Ltd [2009] VSC 454; Wright v Latrobe Regional Hospital [2018] VCC 2327; De Bono v Victorian WorkCover Authority [2020] VCC 1342
Judgment:Application for leave to pursue a claim for loss of earning capacity dismissed. Application for leave to pursue a claim for pain and suffering granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram QC with Mr B Cooper | Maurice Blackburn Lawyers |
| For the Defendant | Mr S A Smith QC with Mr A Saunders | Hall & Wilcox |
HER HONOUR:
1The plaintiff, Ms Kylie Pointer, makes application pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for leave to bring common law proceedings for pain and suffering and loss of earning capacity in respect of a serious long-term impairment to her upper right limb incurred as a result of her employment at Star Track Express Pty Ltd (“Star Track”).
2The defendant, the Victorian WorkCover Authority, conceded at the hearing that the plaintiff meets the test for leave to pursue a common law claim in relation to the pain and suffering consequences of her injury.
3However, the defendant disputes the plaintiff’s claim that she has suffered a loss of earning capacity that meets the relevant test.
4A court must not grant a worker leave to bring proceedings on the basis that the worker has established a loss of earning capacity unless the worker has a loss of earning capacity of 40 per cent or more.[1]
[1] Section 325(2)(f) of the Act
5For the purposes of establishing a 40 per cent loss of earning capacity, the court must compare:
“(i)the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at the date, whichever is the greater, and—
(ii)the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred.”
6The defendant did not seek to cross-examine the plaintiff. Counsel for the plaintiff did not seek leave to call the plaintiff to elicit any additional evidence. Accordingly, the plaintiff’s evidence comprises her two affidavits, sworn 5 December 2019 and 7 March 2022. The parties tendered, without objection, the documents they each sought to rely on, and the matter proceeded to closing submissions.
7The plaintiff has been assessed by the Medical Panel as having a current work capacity of 20 hours per week. Pursuant to s313 of the Act, I am required to adopt and apply the assessment of the Panel.
8The Medical Panel has identified four positions as constituting suitable employment given the plaintiff’s injuries. Those positions are:
(a) despatch receiving clerk;
(b) optical assistant/dispenser;
(c) pharmacy sales assistant; and
(d) teacher’s aide.
9
As the defendant has conceded leave should be granted in relation to pain and suffering, and as the Medical Panel has determined the plaintiff’s
“with injury” earning capacity and has identified suitable employment, there are only two issues for determination in this case.
10The first is the gross income which most fairly represents the plaintiff’s earning capacity had the injury not occurred.
11The second is whether her current earning capacity is productive of a loss of 40 per cent or more when compared to her “without injury” earnings.
12For the reasons set out below, the plaintiff’s application in relation to pecuniary loss is dismissed; however, she is granted leave to pursue a claim in relation to pain and suffering.
Education and employment history
13The plaintiff left school halfway through Year 12. She worked as a chicken boner in a nearby factory for about three years. She then did a hospitality course. After this, she worked in a catering job for AVS Catering in Essendon for about two years.
14The plaintiff had her first child in 1996 and her second child in 1998. She did not work for most of the time between 1996 and 2000, aside from a few odd jobs at factories.
15In about 2000, she went back to work as a magazine distributor for Inline Media. She worked there for about two years. She left Inline Media to take a better paying full-time job at Autotext in about 2002. She stayed there for about three years until the birth of her third child in 2006. After she had her third child, she did not work in paid employment again until 2012.
16In 2012, she worked for a short period as a cleaner.[2] In about June 2013, she obtained work at Star Track through an agency, Australian Personnel Solutions, working variable hours. Her base rate of pay was $29.60, and she was paid overtime. Her weekly hours depended on the work available, but she would often work 30 or more hours per week.
[2] Recorded in the CoWork report in the Defendant’s Court Book (“DCB”) 45
17However, she was seeking a permanent part-time role[3] and left Australian Personnel Solutions to become a permanent employee at Star Track in May 2014. She worked a five-hour afternoon shift, starting at 4.00pm or 5.00pm, five days a week. The base pay rate was lower as a permanent employee, but she was also paid overtime.
[3] DCB 44
18The plaintiff told the Medical Panel that she tried to find employment that allowed her to work an afternoon shift as this was manageable with her family routine and allowed her to provide safe care for her children.[4]
[4] DCB 8
19In her affidavit she says:
“At first I wanted to work as much as possible and took what hours were available. I would commonly work 27.5 hours per week and sometimes over 30.”[5]
[5] Plaintiff’s Court Book (“PCB”) 22
Employment at Funded Learning
20In July 2014, the plaintiff also started doing some call centre work from home for Funded Learning. For around four months, she worked at both Funded Learning and Star Track.
21She says:
“I always enjoyed working and was able to cope well with the two jobs, but decided in the end that I wanted to ease things back and focus more on my family. My daughter has a history of serious health issues and I wanted to be more available as a parent. I therefore let the Funded Learning work go, and then in early 2015 I scaled my hours at Star Track back to 25.”[6]
[6] PCB 22
22At the time she ceased working for Funded Learning in 2014, her children would have been about eighteen, sixteen and eight years old. Aside from this reference to serious health issues, there is no other information available to the Court as to the daughter’s health, or whether those health issues have resolved or worsened in the intervening years. There is a single reference in the report of Dr Nigel Strauss dated 28 April 2021 who notes “her daughters are well”.[7]
[7] PCB 50
Injuries at Star Track
23In about January 2015, the plaintiff noticed some pain in her right wrist and forearm. She told her supervisor, and she was put on lighter work in the video coding department for a week or two, before returning to her usual duties. There is no evidence that this wrist and forearm pain persisted beyond the two weeks.
24In about mid-2015, she again noticed soreness in her right elbow while lifting the satchels. This lasted a couple of weeks.
25On a particular day in July 2015, the plaintiff was throwing a satchel bag onto a conveyor belt when she felt a sudden burning pain in her right elbow. She alerted Star Track and attended her general practitioner. She had an ultrasound and a CT scan, and her right arm was placed in a sling. She took Mobic and Panadol.
26The plaintiff went back to work a few days later. She was placed on light duties doing video coding. She continued taking her medication. After about six months she was cleared to return to normal duties. On about 26 February 2016, the plaintiff was lifting heavy boxes when she felt a sudden pain in her right elbow. This pain continued and worsened.
27In late 2016, the plaintiff had an ultrasound-guided injection to her right elbow.
28In March 2017, she had surgery to repair tendons in the elbow with an orthopaedic surgeon, Dr Jason Harvey. She subsequently had cortisone injections, and in mid-2018, she began a pain management program.
Return to work
29The plaintiff returned to light work in July 2015 and was transferred back to full duties in about early 2016. After the February 2016 aggravation, she was off work for about four to six weeks. She then returned on light duties until her surgery in March 2017. She returned to light duties in about May 2017, until September 2017, when she was told that Star Track did not have any suitable duties and her employment was terminated.
30She has not returned to any form of employment since working at Star Track.
“Without injury” earning capacity
31The plaintiff submits her “without injury” earning capacity is most fairly represented by the period during which she was working at both Star Track and Funded Learning. During the period 9 July 2014 to 14 October 2014, she worked variable hours. Her payslips demonstrate the variability of her hours. Some weeks she worked as few as 13.5 hours at Funded Learning (see for example PCB 212); in other weeks she worked 20 hours (see PCB 211). Her hours at Star Track during this period varied from 31.05 hours (PCB 193) to 25 hours. Her combined hours from both jobs exceeded 25 per week during this period.
32These records accord with the plaintiff’s evidence that when she first became a permanent employee at Star Track she wanted to work as much as possible.
33The plaintiff submits that, although the exact hours worked during this period varied, the evidence supports a finding that her “without injury” earning capacity was significantly greater than her actual earnings at the time of her injury. During this fourteen-week period of employment with both Funded Learning and Star Track, her average weekly earnings were $1,225.21, which would give her a gross annual pre-injury earning capacity of $63,710.92. The plaintiff submits that this is the figure that most fairly represents her earning capacity had the injury not occurred.
34The plaintiff relies on The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop.[8] In that case, Ms Jessop worked variable hours. The average number of hours she worked was 19.95 hours a week. If that average had been used to calculate her gross annual income, she would not have satisfied the pecuniary loss threshold test. Ms Jessop gave evidence at the hearing that she was always available when needed and, had she been offered 38 hours of work a week, she would have taken that work. The trial judge accepted her evidence that, prior to the injury, Ms Jessop was “ready, willing and able” to work up to 37 hours a week. The Court of Appeal held that s134AB(38)(f)(ii) of the Act is intended to be read as follows:
“[T]he gross income (expressed at an annual rate) that the worker:
· was earning from personal exertion; or
· was capable of earning from personal exertion; or
· would have earned from personal exertion; or
· would have been capable of earning from personal exertion,
[8] [2014] VSCA 292 (“Jessop”)
during that part of the period within three years before and three years after the injury, as most fairly reflects the worker’s earning capacity had the injury not occurred.”[9]
[9] Jessop (ibid) at paragraph [42]
35The Court of Appeal went on to say:
“… It follows that a worker’s ability to earn income through personal exertion depends on the nature and quality of the worker’s capital asset and his or her capacity and willingness to use it to earn income. Thus, the worker’s physical and mental capacities to work are relevant, as are the type of work the worker is able to perform, the remuneration for that work and the hours that the worker is willing to work.”[10]
[10] Jessop (ibid) at paragraph [53]
36The Court noted that the actual hours worked, and the worker’s actual earnings will only be the best evidence under the first scenario, the “gross income” scenario, but will not necessarily be the best evidence in relation to the other three scenarios.[11]
[11] Jessop (ibid) at paragraph [55]
37In the present case, counsel for the plaintiff submitted that the plaintiff’s capital asset – that is, her ability to earn income through personal expenditure – was demonstrated by her ability to work at both Funded Learning and Star Track as many as 57.5 hours a week. Counsel for the plaintiff submitted the plaintiff ceased the Funded Learning work in October 2014 to have time available for her oldest daughter and was forced to scale back her Star Track hours in January 2015 because she began to develop symptoms in her right wrist and forearm at that time.
38However, the submission in relation to the reason she scaled back her hours at Star Track is not supported by the evidence.
39The plaintiff’s evidence was that she gave up the Funded Learning work because she wanted to “ease things back and focus more on my family. My daughter has a history of serious health issues and I wanted to be more available as a parent” and that she scaled back her work at Star Track to 25 hours in early 2015. There is no other evidence that I have been able to find, or that I have been directed to, in relation to the serious health issues or whether they persist or have resolved.
40There is no suggestion in the plaintiff’s evidence that she scaled back her work at Star Track because of her injuries, as submitted by counsel for the plaintiff. Indeed, while she did have a short period of wrist and forearm pain at the beginning of 2015, this did not appear to affect her work hours. Her payslips demonstrate that she worked overtime on occasions during January and February 2015. In the week ending 20 January 2015, she worked 29 hours;[12] in the week ending 17 February 2015, she worked 29.03 hours;[13] in the week ending 24 February 2015, she worked 31 hours, and in the week ending 3 March 2015, she worked 26 hours.[14] The precise dates of her sore wrist and forearm are not known, other than that it was a two-week period in early 2015. She continued to work overtime in early 2015 during the period of her sore wrist and forearm. It then resolved. Thereafter, there is no evidence that she worked overtime.
[12] PCB 152
[13] PCB 156
[14] PCB 158
41Careful examination of her payslips in weeks where she was paid for more than 25 hours’ work revealed that the additional hours were in fact personal leave.[15] This is consistent with her evidence that she scaled back her hours at Star Track to 25 hours a week in early 2015. There is no mention anywhere, other than in counsel’s submission, that she reduced her hours to 25 per week in early 2015 because of her injury.
[15] PCB 145, 159, 160
42Her affidavit suggests she scaled her hours at Star Track back to 25 hours for the same reason she gave up the Funded Learning work; that is, to be more available to her family.
43The report of Dr Amanda Sillcock, consultant occupational physician, dated 23 July 2021, records:
“She worked permanent part-time, five hours per day five days per week. She worked afternoon shift and started at 4-5 PM. She said there was some overtime in busy periods.”[16]
[16] PCB 60
44The plaintiff told the Medical Panel that she tried to find employment that allowed her to work an afternoon shift so that she could provide safe care for her children and so that her work would be manageable with the family routine.[17]
[17] DCB 8
45In relation to her work at Star Track, she told occupational therapist, Ms Katarina Clarke, “I was there to do a job and pay my bills at home” and that she enjoyed working with others and “earn[ing] my own money”.[18]
[18] DCB 48
46On the evidence available, I am satisfied that the plaintiff took the job at Star Track because she was attracted to the permanent part-time nature of it. She took a reduced hourly pay rate for the certainty afforded by a permanent part-time position. For a period of fourteen weeks, she worked two jobs and considerably longer hours than her base hours of 25. For family reasons, she gave up her extra job and by the end of February 2015, she was no longer taking any overtime and was working only her base hours of 25 per week.
47There is no evidence as to the plaintiff’s intention to work more hours if and when her family circumstances changed. There is only very limited evidence provided about those family circumstances, which is that she had three children and a daughter with serious health issues. At the time she scaled back her work at Star Track, her eldest daughter would have been eighteen or nineteen. I am left to guess as to what the plaintiff’s intentions were in relation to her family responsibilities into the future. She has given no evidence about it.
48In Acir v Frosster Pty Ltd,[19] J Forrest J said:
“Section 134AB(38)(f) of the Act requires the Court to examine a variety of scenarios to determine which most fairly reflects the worker’s earning capacity …
…
[19] [2009] VSC 454
The Court must then determine which of these scenarios (if more than one is applicable on the evidence) most fairly reflects the earning capacity of the worker without injury.”[20]
[20] (ibid) at paragraph [165]
49The plaintiff had demonstrated a capacity to work up to 57 hours in a week, prior to her injury. This does not mean that her “without injury” earning capacity is most fairly reflected by that week of work. In Jessop,[21] the Court held that relevant considerations in assessing “without injury” earning capacity include the physical and mental capacity to do the work, the type of work the worker is able to perform, the remuneration for that work and the worker’s willingness to work. In that case, the Court, having regard to all these considerations, found Ms Jessop worked fewer hours than she would have been capable of, had the injury not occurred. She had demonstrated a willingness to work overtime hours and gave evidence, which the Court accepted, that she would have worked additional hours if they were available.
[21]Supra
50In the present case, the evidence does not support a finding that, had the injury not occurred, the plaintiff would have worked more hours. Unlike Jessop, it appears that more hours were available, but the plaintiff decided to scale back her hours for family reasons.
51It is not for the Court to speculate that the plaintiff would have increased her hours once her family circumstances changed, or her daughter’s health issue resolved. The onus is on the plaintiff to put forward all the evidence to support her claim as to what amount most fairly reflects her “without injury” earnings.
52I do not accept that she scaled back her hours at Star Track as a result of her injury. This is contrary to her own evidence. I do not accept the submission of counsel for the plaintiff, that her “willingness [to work]” is “answered … by reference to the medical panel. She medically has been certified unfit to work the hours to maximise the use of her capital asset. That’s determined by the medical panel. She can’t work the hours she used to work.”[22] If that submission is correct, then there would be no requirement to consider the factors set out in Jessop which include a worker’s willingness to work.
[22] Transcript 18
53Counsel for the plaintiff submitted that the Court did not need to consider the reasons why the plaintiff was not exercising her capacity at the time of the injury as the relevant consideration was that pre-injury, she could work up to 57.5 hours a week and, post-injury, the Medical Panel has determined her working capacity is 20 hours a week. Counsel for the plaintiff did not submit that 57.5 hours a week most fairly represented her capacity but rather demonstrated she had the capacity to work those hours and an average of her earnings over the period she was working two jobs most fairly reflected her “without injury” earning capacity.
54Applying the various factors that make up a capacity to work as outlined in Jessop, I am satisfied the plaintiff had the physical and mental capacity to work additional hours, the plaintiff was able to perform the type of work, and there was such work available. On the evidence, I am not satisfied that the plaintiff was willing to work more than 25 hours per week.
55Nor am I satisfied that the plaintiff would have exercised, or been capable of exercising, a capacity to work in excess of 25 hours per week, but for her injury. I consider “capable of exercising” in this regard to include consideration of the plaintiff’s willingness to work.
56In Wright v Latrobe Regional Hospital,[23] the plaintiff had been in full-time work and then had a period off work while travelling. When she commenced work with the employer, she did so on a part-time basis. The judge noted that prior to the accident the subject of the application, the plaintiff had “opted to engage in part-time work only”. He noted “the move to part-time employment seems to have been entirely of her own choosing and doubtless fitted in with her occasional work on the farm, for which work no income is attributed”.[24] He noted her decision to engage only in part-time work was not based on her injury or health and there was no evidence that the plaintiff had any intention of returning to work on a full-time basis. In contrast to the plaintiff in Jessop, the plaintiff in Wright “was, and wanted to be, a part-time worker with the defendant”[25] and: “There is no indication or evidence that, but for the accident, she would have been anything other than a part-time worker performing approximately the same number of hours of work during the upcoming years.”[26]
[23] [2018] VCC 2327 (“Wright”)
[24] Wright (ibid) at paragraph [45]
[25] Wright (ibid) at paragraph [51]
[26] Wright (ibid) at paragraph [53]
57In De Bono v Victorian WorkCover Authority,[27] the Court noted:
“In the circumstances of this matter, the plaintiff probably had the capacity to perform full-time work and according to those acting for the plaintiff, a concession was made in the previous hearing that full-time work was generally available. However, the critical aspect of this matter, in distinction to Jessop, is that the plaintiff was only willing to work the number of hours he did because of his responsibility of looking after his daughters. In this sense, and in the particular circumstances of this matter, the plaintiff neither sought nor worked hours beyond about twenty hours a week … .”[28]
[27] [2020] VCC 1342 (“De Bono”)
[28] De Bono (ibid) at paragraph [182]
58The judge in De Bono noted the submission that the Court should infer that “it is probable” the plaintiff would have increased to full-time work as his parenting commitments became less demanding.[29] However, the Court noted the plaintiff’s evidence by way of affidavit provided an insufficient foundation for such an inference to be drawn. The plaintiff had deposed that it was his intention to work greater hours as his children got older and more independent and that he was hopeful that when his younger child went to school, he would increase his work to full-time hours. The judge noted there was inconsistent evidence about when his child commenced school or how old his children were at the time.
[29] De Bono (ibid) at paragraph [184]
59In the present case, there was no evidence at all as to the plaintiff’s future intention, nor was there any submission that I should draw an inference that, but for the injury, she would have increased her hours at some future point. Counsel for the plaintiff instead submitted that I could not draw an inference on the evidence that she would have continued to work part time for the rest of her working life.
60In fact, there is insufficient evidence for me to draw any inference as to what, but for the injury, the plaintiff would have done in the future.
61The evidence does not support a finding, as in Jessop, that the plaintiff had a capacity to work greater hours and would have exercised that capacity if the work was available.
62Rather, like the plaintiffs in Wright and De Bono, the plaintiff made a choice for family reasons not to exercise her ability to work to its fullest. For entirely understandable reasons, she wanted to be more available to her family. Her work history demonstrates that she had long periods of time when she did not work after having her children and, when she did work, she sought to obtain work that could fit in with her family, for example working an afternoon shift as her husband worked a day shift.
63The evidence suggests there was additional work available at Star Track, as demonstrated by her payslips prior to March 2015. After early 2015, she elected to not take that additional work. She has given no evidence as to her future intentions and there is no evidence upon which I can infer her future intention.
64There is no evidence that her circumstances would have changed, or what her intention was in relation to her family responsibilities. I cannot be satisfied that without injury, she would have earned, or would have been capable of earning, any additional income from her personal exertion than her earnings at the time of her injury.
65I find that the gross earnings from personal exertion that most fairly represents the plaintiff’s “without injury” earning capacity is $33,388.20.
66I have calculated this, based on her working capacity of 25 hours per week, at the 2015 rate of $23.50 per week, which gives annual gross earnings of $30,550. This is a lower figure than her actual gross earnings in the 2015 financial year of $37,601 because those earnings included her earnings during the six or so months before she scaled back her hours at Star Track, when she was working 27 and sometimes 30 or more hours a week at Star Track.
67According to the report of the plaintiff’s human resources expert, Ms Katherine Rintoule, the Enterprise Agreement in place at Star Track resulted in a 3 per cent pay increase per annum between 2016 and 2021. The plaintiff is entitled to those pay increases until 2018, three years after the date of her injury. This produces the following figures:
2016 $30,550.00 + 3% ($916.50) = $31,466.50
2017 $31,466.50 + 3% ($944.00) = $32,410.50
2018 $32,410.50 + 3% ($972.32) = $33,382.82
Has the Plaintiff suffered a 40 per cent loss of earning capacity?
68The plaintiff has a “without injury” earning capacity of $33,382.82. To meet the 60 per cent threshold, she must have an “after injury” earning capacity of $20,029.69 gross per annum or less.
69As set out above, the Medical Panel has determined the plaintiff’s working capacity is 20 hours a week in four occupations.
70Different methodologies were proposed for calculating the applicable pay rate for these four positions. Ms Rintoule identifies the applicable award rate for an adult employee at an entry level position, given the plaintiff’s lack of experience with the identified positions.[30] Ms Katarina Clarke proposes a pay rate based on the Australian and New Zealand Standard Classifications of Occupations rates.[31]
[30] PCB 72
[31] Transcript 10; DCB 60
71These different methodologies produce significant differences in the amounts that, according to the Medical Panel opinion, the plaintiff has a current capacity to earn. The plaintiff’s methodology provides a lower hourly rate than the defendant’s methodology.
72I accept that it is appropriate to use an entry-level rate for the plaintiff’s current income earning capacity. She has no previous experience in any of the roles, and there is no evidence that wages above the award rate are the norm in any of these occupations. Accordingly, I accept Ms Rintoule’s evidence of the applicable pay rates for each of the occupations the plaintiff is capable of undertaking.
73These rates are as follows:
Despatch receiving clerk $23.12 per hour $24,044.80 gross per annum
Optical assistant/dispenser $23.39 per hour $24,325.60 gross per annum
Pharmacy sales assistant $22.33 per hour $23,223.20 gross per annum
Teacher’s aide $20.92 per hour $21,756.80 gross per annum
74Working in any of these occupations for the limit of the plaintiff’s “with injury” work capacity of 20 hours a week would produce income from personal exertion in excess of 60 per cent of her “without injury” earnings.
75Accordingly, the plaintiff has not made out a loss of earning capacity of 40 per cent or more and her application for leave to pursue a claim for loss of earning capacity is dismissed. The plaintiff is granted leave to pursue a claim for pain and suffering.
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