Ralph v Jordacey Pty Ltd
[2019] VCC 1862
•18 November 2019
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-02055
| DAVID JAMES RALPH | Plaintiff |
| v | |
| JORDACEY PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 30 September 2019 | |
DATE OF JUDGMENT: | 18 November 2019 | |
CASE MAY BE CITED AS: | Ralph v Jordacey Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1862 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the right foot – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Richter v Driscoll [2016] VSCA 142; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Cardiff Corporation v Hall [1911] 1 KB 1009
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC with Mr R Morrow | Nevin Lenne Gross |
| For the Defendant | Mr P Scanlon QC with Mr S Martin | Lander and Rogers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 3 January 2017 (“the said date”).
2 The application is brought pursuant to clause (a) of the definition of “serious injury” to be found in s325 of the Act. The relevant body function is the right foot.
3 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
4 Counsel for the defendant did not address the Court in relation to pain and suffering. While not conceding this issue, it was simply submitted the economic loss application must fail.[1] In those circumstances, I do not propose to deal in any detail with the pain and suffering consequences, and will focus largely on the plaintiff’s loss of earning capacity application.
[1]Transcript (“T”) 50
5 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
8 Sections s325(2)(e) and (f) of the Act recite the formula by which loss of earning capacity is to be measured.
9 Section 325(2)(g) of the Act requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established
10Subsection s325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[2] Grech v Orica Australia Pty Ltd & Anor[3] and Richter v Driscoll[4] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
[4][2016] VSCA 142
12 The plaintiff relied upon two affidavits and he was cross-examined. He also relied on affidavits sworn by John Billman and Paul Serra from W B Hunters (“Hunters”), his former employer. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is presently aged fifty-three, having been born in September 1966. He lives with his parents in Shepparton.
14 The plaintiff has been off work since the beginning of this year and is in receipt of a Centrelink/Newstart payment of just over $500 per fortnight. He is currently applying for a Disability Support Pension.
15 After completing Year 11, the plaintiff served in the Army for six years, mostly in Sydney with the parachute division as a rigger. He held the rank of private.
16 The plaintiff then worked as a police officer with Victoria Police from 1990, in Metropolitan Melbourne and later Wangaratta and Shepparton, until 2003. He reached the rank of Senior Constable. In that role dealing with offenders, he was required to prepare a brief and do significant input on police computers. He could not recall the computer system he used, but denied he was proficient in computer usage – he was adequate.[5]
[5]T21-22
17 The plaintiff then moved to Canada, where he worked as an investigator, and also did security work and some house-framing work. He returned to Australia and worked as a warehouse manager undertaking forklift duties and he also managed hotels. He commenced with for the defendant in September 2016.
18 Before the said date, the plaintiff led a very active and physical life. He was helping to care for his father, who had dementia. He was active around the house, including doing general repairs, mowing the lawns and general gardening duties. He also engaged in a range of sporting activities.
The incident
19 The plaintiff sustained a serious crush injury to his right foot on the said date when his foot was crushed between pallets and a pallet jack (“the incident”).
20 The plaintiff attended Shepparton Hospital, where a compression bandage was applied, and he was sent for an x-ray, but no fractures were seen. He then attended his general practitioner, Dr Albatat, who referred him for a bone scan and an ultrasound, which were carried out in January 2017. The x-ray revealed a fracture in the bones in his right mid foot. The ultrasound showed damage to the ligaments and tendons in his foot and ankle.
21 The plaintiff remained off work and had physiotherapy from Mr Marx. His right foot and ankle pain persisted, and he continued to see his general practitioner.
22 In February 2017, the plaintiff had a CT scan of his right foot and was given a moon boot and told to avoid weight bearing. He wore the boot for about five-and-half months, during which most of that time he was off work.
23 Despite treatment, the plaintiff’s right foot pain persisted, and he was unable to walk for more than a few minutes, or stand for more than ten minutes, without acute pain. He had difficulty sleeping and was unable to return to his previous hobbies.
24 Following the incident, the plaintiff was prescribed various painkilling medication. His general practitioner referred him to Dr Weekes, pain specialist, who prescribed Prednisolone and Lyrica. He suggested a branch block injection, which the plaintiff initially rejected.[6]
[6]Professor Boffa noted a sympathetic block has been carried out
Return to work
25 In July 2017, the plaintiff attempted a return to work on light duties but could not tolerate his tasks without worsening symptoms. He became increasingly frustrated and upset about his ongoing pain and inability to get back to work and a normal life, and was referred to a psychologist. His relationship with his girlfriend ceased, as she could not cope with his immobility.
26 The return to work plan was meant to be two days a week, two hours a day in the office. Instead, the defendant put the plaintiff in the flour shed, which involved him walking around.[7]
[7]T2 – worked there once for an hour
27 The plaintiff had difficulties on his return to work, with the defendant being very hostile to the fact he had been injured and being unable to do his normal duties. The plaintiff discussed this situation with his WorkCover case manager, who told him to go home. The plaintiff then went off work and continued in receipt of weekly payments.
28 The plaintiff understood WorkCover gave the defendant the option of whether they could re-hire him or he continue in his previous role. “They said no, it was not through (my) choice.” However, he could not have done his old job with his foot injury.[8]
[8]T36
29 The plaintiff was determined to try and re-enter the workforce and applied for a job at Hunters as a warehouse manager. He told that employer of his foot injury.
30 From July 2018, the plaintiff worked with Hunters. He initially worked eight-and-a-half hours, five days a week, but despite his determination, he struggled with his duties, in particular, getting on and off forklifts, driving forklifts and lifting bags, causing his right foot pain to worsen. He struggled from day one, and although he was allowed to take extra breaks, he could not continue with those hours.
31 In about October 2018, the plaintiff negotiated to reduce his work hours to three days, eight hours a day. His position with Hunters was re-advertised. He continued to help out there for a short period while they looked for a replacement. The bosses, otherwise, liked his work, and were hoping his condition would improve and he could continue with Hunters.
32 The plaintiff’s general practitioner reviewed his condition and imposed additional restrictions and, as a result, the plaintiff had to cease work this job. The plaintiff was told by his boss at Hunters that they would need someone who could do more work and he was not able to be kept on. He has not worked since.
33 While working at Hunters, the plaintiff worked eight hours a day, but had lots of breaks, so it was difficult to tell for how long during the day he actually worked. When asked whether he had worked very hard in that role, he said he “tried”.[9]
[9]T4
34 The plaintiff had breaks going and sitting down and putting his foot up when the pain became too much. He would have a smoke and have lunch. He would have a dozen different breaks during the course of the day, away from the office and the warehouse. His employer accepted that situation.[10]
[10]T35
35 The plaintiff had no idea that affidavits were going to be provided by his Hunters bosses, Mr Serra and Mr Billman. He agreed with the contents of their affidavits. He had not seen these documents until he gave evidence.[11]
[11]T15
36 The plaintiff agreed that he had to have his medical certificate amended so he could get the Hunters job. He was required to work 42.5 hours a week. The job involved forklift operating and lifting 20-kilogram product for loading.[12]
[12]T16
37 The plaintiff agreed that the Hunters’ job was extremely similar to his job with the defendant, “but not the product”. He was on his feet and lifting 20 kilograms from time to time. He agreed there was no prospect whatsoever he could continue to do his old job as a result of his foot injury, then said “no not necessarily”. He could have gone back to his old job, but they had no work for him or anyone anymore. This, however, was not why he stopped there, it was because of his injury.[13]
[13]T18
38 The plaintiff agreed, as a result of his injury, standing on his feet all day on a concrete floor and getting in and out of a forklift and working and picking and packing with weights of up to 20 kilograms, was beyond his capacity. He agreed, doing the work at Hunters was also going to be hard. It was always going to be problematic. He agreed that he would have to “amend”, as it were, the sort of work he would be able to do, and would need some advice from a medical practitioner.[14]
[14]T19
Pain and other consequences
39 As of December 2018, the plaintiff had ongoing pain on the top and both sides of his right foot and into his ankle. It was constant, and worsened if he tried to carry anything, walk or drive. In particular, vibrations from accelerators caused his pain to become acute.
40 The plaintiff had increasingly walked with a limp and had developed back pain, which had worsened. He was woken by foot pain at night. He was not able, now, to provide assistance for his parents at home in terms of shopping, general repairs and gardening.
41 The plaintiff’s ability to participate in outdoor recreational activities he had previously enjoyed had had been stripped because of his injury. Pre incident, his passion had been for water-based activities, including going to Melbourne and interstate to scuba dive with a friend. He enjoyed fishing and camping along the Murray with friends. He also derived great enjoyment riding his road motorbike on day and weekend trips to places such as Mansfield, Yea, Yarrawonga and Melbourne.
42 As a result of his pain, the plaintiff was not able to obtain an erection and had been prescribed Viagra.
43 The plaintiff greatly missed his career with the defendant, particularly the physical aspects of the work and his co-workers. Work was an important social activity for him, as well as giving him a great sense of pride and satisfaction.
44 Dr Albatat was providing disability support certificates and only gave the plaintiff a certificate last week for Centrelink, certifying he was unfit for all work. The plaintiff did not have that certificate, or a similar one from another doctor, with him at the hearing.[15]
[15]T9
45 The plaintiff had resumed seeing Dr Albatat only a couple of days ago. He had earlier been his treater, but then went to Melbourne and the plaintiff came under the care of Dr Mackeller at a different clinic.[16] It would have been several months since he had seen Dr Mackellar.[17] During the week before coming to court was the first available opportunity the plaintiff had had to see Dr Albatat.[18]
[16]T3
[17]T8
[18]T10
46 The only specialist the plaintiff has been sent to is Dr Weekes, pain specialist. He knew that doctor and his general practitioners have provided no certificates as to his current work capacity.[19]
[19]T20
47 The plaintiff’s foot pain continues to affect his gait. The pain is constant and not improving. He can develop a limp after about 100 metres as this pain becomes acute – even walking about half a block, he experiences this pain.
48 The plaintiff tries, and uses, a walking stick from time to time to take some of the pressure off his right foot, but he does not use it constantly. He tries to use it when he is suffering more pain or is likely to have to walk a longer distance.
49 With ongoing foot pain, the plaintiff has continued to suffer worsening back pain. He has problems with extended driving and has to take rests after long drives and put his feet up when he gets home.
50 The plaintiff agreed he told Mr Edwards he could not squat and that was one of the problems he had doing housework. He agreed he could not do the gardening or push a lawnmower. He had difficulty walking and he was “weak.”[20]
[20]T7
51 The plaintiff was shown a couple of minutes of surveillance film taken of him in February 2019, filling up a jerry can with petrol. He agreed he was shown in a full and prolonged squat and that he rose from that position with ease. He was wearing thongs and did not have a walking stick. While he said he could not squat, “he meant not without difficulty or pain”.[21] Squatting causes pain to his foot and ankle. He was filling up the petrol can for less in the film.[22]
[21]T12
[22]T36
52 The plaintiff’s pain is constant, and he is unable to differentiate between the pain with bending and the pain with squatting. There is no difference. When it was suggested the film showed a capacity to squat, he said “not without difficulty”. He did so with pain because he had to “move on” with his life.[23] When weight goes onto his foot, he has pain whether bending or squatting, or even sitting.
[23]T14
53 The plaintiff presently takes Panadol Osteo or Panamax. He prefers to avoid analgesic medication as, in the past, it has not really helped with his pain.
54 The plaintiff continues to be woken at night by foot pain and on a bad night can average about three hours of sleep. He generally remains in bed and tries to get back to sleep as best he can.
55 The plaintiff can manage dressing, unless his toe catches. When he puts a shoe on his right foot, he suffers worsening pain. He tries to wear boots which have side zips. He confirmed he wears moccasin type footwear at home, and when he leaves the house, he wears a boot or a shoe of some sort because they give his foot more support.[24]
[24]T11
56 It depended, on the day, what the plaintiff did. He is not receiving any medical treatment or physiotherapy. He does not do “the big shop”. He visits a friend who owns a hotel at Dookie and also goes to the RSL to play the pokies and visit people.[25] He could not say with what exact frequency he attended the RSL, as he did not go regularly.[26]
[25]T30
[26]T31
Current work capacity
57 The plaintiff could work seated at a workstation, but not without difficulty. He would be prepared to move on with his life and work in a seated sedentary position if he could do so without pain and difficulty. He agreed he is fit to sit and stand at home.[27]
[27]T14
58 The plaintiff confirmed, as noted by Recovre, that his computer skills were average and that he used various programs working with Victoria Police and as a warehouse manager.[28]
[28]T23
59 The plaintiff said it was incorrect that a warehouse manager role involved a lot of data entry, “not necessarily, each place is different”. He agreed he was intimately familiar with the data entry required when a truck arrived at warehouse with goods.[29]
[29]T23
60 Having been told a supply and distribution manager was someone who is required to plan, organise, direct, control and co-ordinate the supply, storage and distribution of goods, the plaintiff could not say whether he could do that role. Each job had a different description and he would have to read the key selection criteria to be able to answer that question correctly.[30]
[30]T23
61 The plaintiff agreed, in such a manager’s role, he would have to do some organising, some direction, some controlling co-ordination – depending on the work location. Those duties may include determining, implementing or monitoring purchasing, storage and distribution.[31]
[31]Plaintiff’s Court Book (“PCB”) 147
62 The plaintiff assumed a warehouse clerk would do similar tasks without the control role. He has never done that sort of job. Maybe he could learn to do it.
63 The plaintiff applied for a community services course at TAFE, but it was booked out. He then did not get approval for funding. He would not be prepared to fund training himself.[32]
[32]T25
64 Since working at Hunters, the plaintiff has not applied for other jobs because none were suitable. He looked on Seek on a regular basis, but not for any specific job. There is no job that he had found.[33]
[33]T26
65 The plaintiff agreed he was looking on Seek because he wanted to work and if he could find the right job that was sedentary, and he could sit and stand as he saw fit; that is the sort of job that he could do. If it involved no heavy lifting and being able to stand when he wanted to, and it involved a computer and pieces of paper and the like, then that sort of job is the job that he could do “with difficulty perhaps”.[34]
[34]T29
66 The plaintiff agreed he was earning approximately $50,000 a year with the defendant. He was not aware that the suggested jobs had wages well in excess of that figure.[35]
[35]T32
67 The plaintiff was taken to the description of a despatch clerk role. The job involved working at a computer workstation with a single screen display, a standard keyboard and a mouse. He was familiar with those tasks, and could operate each of those pieces of equipment.
68 Whilst counsel for the defendant suggested to the plaintiff that role allowed him to sit and stand as he wished, further in the job description, it was noted computer-based tasks took up 90 per cent of the workday.[36]
[36]T34
69 The plaintiff was asked about the suggested supply and distribution manager job. That was not presently a job within his capability and would not be with retraining because, in his experience, in all the places he had worked as a manager or a team leader, he had always been required to do lifting, and picking and packing.
70 Typing, like he had done at the police force, was “basically filling in the square and moving on.” He last used a computer in that role in 2009 or 2010.[37]
[37]T37
71 The plaintiff did not know any jobs in the community with no heavy lifting where he could sit and stand at will, and “use a computer and a piece of paper”.[38]
[38]T38
72 The plaintiff confirmed, in his role as a team leader for various warehouses, he was required, every day, to pick and pack like everybody else and use the forklifts every day, although that was not in the job description or the key selection criteria. It is “just about a given” that everyone in warehousing must assist in the warehouse.[39]
[39]T38
The Plaintiff’s earnings
Financial Year Employer Gross Earnings 2014 Euroa Hotel $39,373.00 2015 Trustee for Peppermill Inn Business Trust
Unilever Australia
Total:
$6,993.00
$27,165.00
_________
$34,158.00
2016 Trustee for Peppermill Inn Business Trust
Unilever Australia
Trustee for V Zurcas Unit Trust
Chandler McLeod Group Limited
Drake Australia Pty Ltd
Echo Facility Services
Total:
$1,816.00
$8,988.00
$16,698.00
$6,510.00
$885.00
$1,402.00
_________
$36,299.00
2017 Victorian WorkCover Authority
Jordacey Pty Ltd
Redi Workforce Pty Ltd
Total:
$1,446.00
$41,535.00
$9,414.00
_________
$52,395.00
2018 Victorian WorkCover Authority
Jordacy Pty Ltd
Total:
$48,465.00
$757.00
_________
$49,222.00
The Plaintiff’s lay evidence
73 John Billman, manager of Hunters in Shepparton, swore an affidavit on 26 September 2019.
74 The plaintiff applied through Seek for work at Hunters. Hunters found he had a pre-existing injury and he was trying to return to work. They decided to proceed with the program that was offered to them for injured workers returning to work under the Wise Program.
75 The plaintiff commenced as a full-time warehouse manager. His hours were 42.5 hours a week and he worked from about 7.00am to 4.30pm or 5.00pm daily, with 30 minutes for lunch.
76 The role, approved by Recovre, involved a mixture of forklift driving and manual handling. There was a lot of walking involved and it was necessary to be fairly fit.
77 The plaintiff’s role at Shepparton was managing a warehouse for seven other Hunters stores. He would pick and pack for the other stores with the assistance of another person who was about half a position in the warehouse.
78 At the start, the plaintiff was able to manage the job and he seemed to be handling it; however, Mr Billman noted, at about the six to eight-week mark, the plaintiff was tired at the end of the day and limping, and he spoke to him about it. The plaintiff confirmed he was taking breaks, but Mr Billman noticed he was getting quite fatigued. He did not physically supervise the plaintiff for the whole eight or nine hours a day, however, at the almost two-month mark, he noticed the plaintiff was finding it hard to complete picking and packing tasks and, in particular, was finding the walking and manual handling hard to complete.
79 At that stage, he could tell the plaintiff had an issue as he was limping, and obviously in pain, and the plaintiff advised him that he was struggling to get to sleep because of the pain.
80 As a result of the plaintiff producing a Certificate of Capacity for office work only, he decided to resign his employment with Hunters.
81 Paul Serra, Hunter’s general manager, interviewed the plaintiff for the job. The plaintiff was the best candidate, and he was offered a position on or about 12 July 2018, on the basis he was cleared by his doctor to perform the job.
82 The plaintiff advised he had been injured and therefore Hunters requested medical clearance. Initially, his doctor did not clear him, but two days later the plaintiff returned with a clearance from his doctor, so Hunters proceeded to employ him.
83 Mr Serra confirmed the plaintiff’s work was 42.5 hours a week, with forklift operating work and lifting 20-kilogram product for loading.
84 The plaintiff was a willing worker, however, over the course of his employment he gradually became more and more restricted. He ultimately failed in the job because his medical Certificate of Capacity did not allow him to fulfil the functions of the position description.
85 Mr Serra saw the plaintiff from time to time at work over a few months. He produced a Certificate of Capacity stating he could only work Mondays, Tuesdays and Thursdays, and that this would be reviewed in a month.
86 The plaintiff worked within the restriction of the Certificate for about three or four weeks. He then produced a further certificate, stating he only had capacity for office work.
87 It was clear that the plaintiff, due to his medical capacity, could not perform the job, and he subsequently resigned. He wanted to work. He made the effort to apply for the job and was the best candidate, but after about three months, he simply could not continue in the position because of his medical restrictions.
Medical evidence
Treaters
88 Physiotherapist, Ben Gidley, provided a report in April 2017 setting out a proposed management plan.
89 Dr Albatat, general practitioner, reported in August 2017 that he was unsure at that stage when the plaintiff was likely to be able to return to work as he needed more psychological review and was also awaiting an appointment with a pain management specialist.
90 The plaintiff was referred by his general practitioner, Dr Jallo, to Dr Weekes, pain specialist, in April 2017. At that stage, the plaintiff’s issues were pain right foot, Complex Regional Pain Syndrome (“CRPS”), some symptoms of depression and difficulties with function.
91 The plaintiff then described neuropathic-sounding pain with an average score of 5 out of 10. He described other symptoms of CRPS, including allodynia, swelling, colour changes, for example red, increased temperature and decreased range of motion.
92 On examination, there were signs that confirmed the Budapest criteria for the diagnosis of CRPS. The plaintiff, in particular, held his toes in dorsiflexion and found it hard to relax them.
93 Dr Weekes prescribed Prednisolone and also Lyrica, and emphasised the importance of physiotherapy. He applied to the insurer for funding for a right L4 sympathetic block with local anaesthetic and steroid. Endep was later prescribed.
94 Dr Weekes last reported in December 2017. He then noted the plaintiff had ongoing pain despite a healed crush injury. He had symptoms confirming the diagnosis of CRPS, including allodynia, swelling and colour change. He again suggested a lumbar sympathetic block.
95 Dr Weekes did not comment on the plaintiff’s work capacity in that report.
96 On 9 April 2019, the plaintiff’s general practitioner, Dr Mackellar, recommended the plaintiff be provided with a walking stick. Dr Mackellar has not provided a report as to the plaintiff’s current work capacity.
Medico-legal evidence
97 Mr Kenneth Brearley, general surgeon, examined the plaintiff on behalf of EML Vic Pty Ltd for the purposes of an AMA assessment in June 2018.
98 The plaintiff then complained of virtually constant pain in the right mid foot and particularly around his ankle. Pain was at a low level if resting completely, but as soon as he did any activity the pain became worse and often severe. It also interfered with his sleep. He did note there had been some improvement in the level of pain as time passed.
99 Mr Brearley described the plaintiff as suffering a crush injury to the right foot with fracture of the intermediate cuneiform. He had gone on to develop CRPS involving the injured right foot and he had been significantly disabled as a result.
100 Mr Brearley thought the plaintiff would not be able to do labouring work, or similar, for the foreseeable future, and he would be confined to management-type work for a trucking company, or manufacturing, or similar management role. He thought the right foot fracture had stabilised. The condition of CRPS was not yet stabilised, but the plaintiff was continuing to improve in that regard.
101 Mr Edwards, foot and ankle surgeon, examined the plaintiff in August 2019. The plaintiff then described pain that could be moderate to severe. The pain was throbbing, aching, heavy, hot and burning, and it woke him every night.
102 On examination, Mr Edwards noted there was calf wasting, with a 37-centimetre girth on the right, compared to 39.5 centimetres on the other side. There was no special swelling of the hindfoot. The plaintiff could just toe stand, but this was weak. The heel did not invert. He had a symmetrical too many toe sign. He walked with an antalgic gait pattern and could heel walk. When he attempted to tiptoe walk, he collapsed. He had increased tread along the lateral board of his foot.
103 To isolated testing, measured with a goniometer, the plaintiff’s hindfoot dorsiflexion was 5 degrees and plantar flexion 50 degrees. He had spasm of hindfoot evertors but no crepitus or irritability on attempted movement of the subtalar joint. To isolated testing, there was a jog of movement here.
104 Hindfoot inversion was measured at 10 degrees and eversion at 5 degrees, which Mr Edwards suspected was largely through the ankle. None of the toes engaged the ground. Great toe dorsiflexion was measured at 60 degrees and plantar flexion at 20 degrees, with neither crepitus or irritability.
105 The IP joint of the great toe had full extension to neutral and plantar flexion to 70 degrees. All of the NTP joints were end located and mobile. None of them were irritable or tender. The plaintiff had pain inhibition of long motors, but all long motors had full power. He had diffusely altered sensation below the distal third of the calf throughout the foot and ankle, but this was without allodynia. There was tenderness of the sinus tarsi. There was some tenderness of the ankle joint. There was much tenderness of the TMP joints and very significant irritability to piano testing.
106 Mr Edwards thought the plaintiff had suffered an injury to the TMT joints, as well as neurogenic pain, all a consequence of his injury at work. The injury was permanent. Mr Edwards noted the plaintiff told him his foot limited his standing to ten minutes and his walking to five or ten minutes, he was unable to run, and his ankle made it very difficult to walk on uneven or unstable ground.
107 Mr Edwards thought the plaintiff was suitable for sedentary work on limited hours. The plaintiff told him he had back pain and that would adversely affect his ability to sit.
108 While of the view the plaintiff was suitable for sedentary work, Mr Edwards understood the plaintiff’s problems with his back, which may make this impossible and would be best answered by an occupational physician.
109 The plaintiff was examined by psychiatrist, Dr David Weissman, in May 2019. The plaintiff then complained of a throbbing and burning ache and pain in his entire right ankle and foot. He also described lower back pain and ache and discomfort, which he attributed to his altered gait since his injury.
110 The plaintiff advised Dr Weissman he saw a psychologist once. He described being partially depressed, and it was the first time he had not been working, and it was hard being in constant pain all the time. He described sleeping difficulties. He did not know how he saw his future and advised that his payments were going to be terminated in July 2019. Future work depended on the job.
111 The plaintiff advised of his physical restrictions. His only prior experience was working in the military, in the police, in pubs and in warehouses. Physically, he could not do any of these jobs. He told Dr Weissman he would not be able to do any office work because he did not complete high school beyond Year 10, had no tertiary qualifications, and no past experience in that field.
112 Dr Weissman considered the plaintiff experienced mild mixed reactive anxiety and depressive symptoms, themes and features, with frustration, as a consequence of, or secondary to, his work-related pain, injury, disability, limitations and restrictions. He noted the plaintiff was allegedly reportedly treated poorly and bullied during his return to work period later on in 2017, and that had contributed to his emotional symptoms.
113 The plaintiff told Dr Weissman he had obtained a job through the Wise Program with Hunters, a rural merchandise firm, in 2018 as a warehouse manager doing restricted duties; however, he lasted only four months, because of an exacerbation of the pain and symptoms of his right ankle and foot, and he had not returned to any employment since.
114 Dr Weissman concluded the plaintiff was suffering from a Mild Chronic Adjustment Disorder with Anxious and Depressed Mood relevant to his employment. On purely psychiatric grounds alone, there was probably no actual psychiatric incapacity for work.
Vocational evidence
115 Paul Hartley of Vocational Directions Pty Ltd prepared a vocational assessment report in June 2019.
116 Mr Hartley noted the plaintiff’s attempts to return to work through Recovre, with an initial assessment in March 2017.
117 Mr Hartley reported the plaintiff had incomplete secondary education – Year 10 – and other than industrial licences for the operation of forklifts and trucks, as well as some brief short course hospitality training pertaining to gambling and serving of alcohol, his only vocational qualification pertained to vocational training he undertook at the Police Academy twenty-nine years ago.
118 Nevertheless, and despite his Year 10 education, the plaintiff considered his overall English literacy to be good. His numeracy was adequate and average, and his digital literacy had been adequate for the policing and other jobs he had undertaken but was not at a commercially functional level for clerical, administrative or higher management roles in Mr Hartley’s experience.
119 Having considered the roles suggested in the Recovre reports – parks and gardens cleaner, supply and distribution manager, intelligence officer/public relations officer, property manager, inspector and regulatory officer, probation officer, office manager – Mr Hartley concluded it was clear that the assessors who had provided these reports had substantially exaggerated or overestimated the plaintiff’s transferable skills whilst underestimating, minimising or negating the education, training and experience required to undertake each of the jobs suggested as “suitable employment”.
120 In his view, the plaintiff lacked the education, training and experience to be considered a viable candidate for any of the jobs suggested and they were, accordingly, not suitable employment, noting no training had been provided to the plaintiff since the injury.
121 For completeness, Mr Hartley set out a number of job options related to the plaintiff’s previous employing industries and vocational interests – store person, warehouse administrator, security/control room officer, despatching and receiving clerk, order clerk/internal sales clerk. For a variety of reasons, Mr Hartley concluded these roles were not suitable for the plaintiff.
122 In the absence of the provision and successful completion of the appropriate level of re-education to be able to fulfil the inherent requirements of alternative employment within his residual functional capacity, Mr Hartley was unable to suggest any jobs for which he believed the plaintiff had sufficient education, skills and experience to be considered a viable capacity.
123 Mr Hartley concluded the plaintiff’s residual capacities were not realistically saleable in the current employment marketplace.
The Defendant’s medico-legal evidence
124 The plaintiff was examined by psychiatrists, Dr Grant in 2017, and Dr Khalid in 2019. They both agreed that the plaintiff suffered from a Mild Adjustment Disorder with Depressed Mood that was not severe enough to incapacitate him from work. Dr Tagkalidis, psychiatrist who carried out an AMA assessment in 2018, agreed with this diagnosis.
125 The plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon, in September 2019.
126 The plaintiff told Mr Dooley that he experienced constant ongoing pain in his foot, which became less intense in time, but it was still significant. After walking 30 to 40 metres, he had an increase in his pain. He had to use a walking stick outside the home.
127 The plaintiff advised Mr Dooley he could not continue his new job as a warehouse manager because of increasing foot pain.
128 On physical examination, the plaintiff walked with an antalgic left-sided gait and was using a single point stick. On inspection, there was wasting of the calf musculature. There was no soft-tissue swelling, discolouration or sweating of the right foot and ankle areas. There was generalised tenderness over the dorsum of the foot and ankle.
129 In terms of active motion of the ankle, hindfoot and toes, the plaintiff’s movements were somewhat jerky, and it was difficult for him to achieve a fluent type movement. Passively, the ankle could be dorsiflexed to 5 degrees and plantar flexed to 25 degrees. The hindfoot could be inverted to 15 degrees and everted to 10 degrees. At times, the plaintiff struggled, but he was able to dorsiflex and plantar flex his toes. Peripheral pulses were present.
130 Mr Dooley noted that he was not provided with any radiological investigation or x-ray, thus making an accurate radiological diagnosis difficult. He did, however, note the report of the anteroinferior part of the intermediate cuneiform being fractured. In association with that, there may have been an injury to the tarsometatarsal ligament complex.
131 Mr Dooley noted the plaintiff’s recovery was difficult and slow. The fracture had healed. The plaintiff had been diagnosed with CRPS, a condition which was thought to relate to overactivity of the autonomic nervous system. Mr Dooley thought it related to an excessive neurovascular response to injury. It could be associated with pain greater than one would expect to see at the time of injury, and sweating and discolouration of the limb. There may be some associated stiffness of the adjacent joints. In his experience, the condition ran a natural course. On clinical examination that day, there were no features of the Syndrome.
132 Following the injury, Mr Dooley would expect a patient to note ongoing intermittent pain in the region of the hindfoot and difficulty with prolonged walking and prolonged standing on a hard surface. He would also expect a patient to note difficulty with impact leisure pursuits. It was his view, however, that the constancy and intensity of the plaintiff’s ongoing pain and his described disability were greater than one would expect to see for his organic condition, noting he had an understandable psychological reaction. Mr Dooley did not consider, from an orthopaedic point of view, any further treatment was appropriate.
133 From an orthopaedic point of view, Mr Dooley did not believe that the plaintiff would be able to carry out regular heavy physical work, or work that involved prolonged walking, prolonged stair use and prolonged standing in the one position. He believed the plaintiff had a physical capacity to carry out light physical work and clerical duties, noting the jobs suggested in the vocational reports dated 30 August 2019 and 27 March 2019 of:
(a) despatch clerk
(b) warehouse clerk
(c) warehouse manager
(d) accommodation and hospitality manager
(e) supply and distribution manager
(f) office manager
(g) inspector – regulatory officer; and
(h) parole officer.
134 Mr Dooley believed the plaintiff had a physical capacity to work as a despatch clerk, warehouse clerk and warehouse manager. He believed he would have a physical capacity to work as a supply and distribution manager, office manager, inspector and parole officer.
135 Associate Professor (“A/P”) Umberto Boffa, occupational physician, first saw the plaintiff in February 2018.
136 The plaintiff then had ongoing right foot stiffness and burning dorsal pain. He reported a 5 per cent improvement with colour changes and sweatiness, relieved by the sympathetic block. Sleep was disturbed. He avoided bending, squatting and crouching. Sitting was unrestricted, while standing was restricted to thirty minutes because of lower back pain. The plaintiff could walk with a limp for 300 metres and drove short distances.
137 On examination, the plaintiff was not able to stand on the right heel and toes. Right ankle and foot examination revealed 50 per cent ankle flexion and extension and 50 per cent subtalar inversion with no eversion. Movement of the toes was sluggish, with hypertension in the interphalangeal joints. The skin was dry with dorsal dysaesthesia over the foot and ankle. There was a centimetre loss of mid-calf circumference relative to the equivalent point on the left.
138 A/P Boffa diagnosed right lower limb CPRS caused by the accident at work.
139 A/P Boffa thought the plaintiff was fit for a graduated return to duties that allowed change in posture but to avoid prolonged standing, walking, driving and repetitive bending, crouching, squatting and lifting, and carrying more than 5 kilograms. He was not able to drive a forklift.
140 A/P Boffa thought the plaintiff required referral to an orthotist to fit a metatarsal bar to improve hyperextension of the toes. He also required an assessment for suitability for a pain management program, including mirror and CBT.
141 A/P Boffa was provided with Recovre’s report of 18 May 2018. He thought the plaintiff was not fit for parks and gardens cleaner or patient transport officer because duties involve prolonged standing, walking, driving and repetitive bending, crouching, squatting and lifting, and carrying more than 5 kilograms. He thought the plaintiff was fit for any of the other listed roles.
142 On re-examination in January 2019, the plaintiff had returned to full-time warehouse management in July 2018, but was not able to continue with the associated manual handling after reducing hours and shedding duties, and he ceased work after three months. At that stage, he was yet to return to work and was considering retraining in a change in career to community services. He remained certified unfit (COC 13 September 2018).
143 The plaintiff then complained of ongoing right foot stiffness and burning ankle and dorsal foot pain. Spontaneous colour changes and swelling still occurred. Sleep was disturbed. He avoids bending, squatting and crouching. Sitting and standing were restricted to 15 minutes and walking with a limp to 500 metres. He could carry up to 5 kilograms.
144 On examination, the plaintiff had a mildly right antalgic gait. He was unable to stand on the right heel and toes. Right ankle and foot examination again revealed dysaesthesia over the foot and ankle. There was 50 per cent ankle flexion and extension, and 50 per cent subtalar inversion with no eversion. Movement of the toes was sluggish, with hyperextension at the interphalangeal joints, with no signs of extensor surface pressure areas. The diagnosis of CRPS was confirmed.
145 A/P Boffa thought the plaintiff was able to return to pre-injury hours, but not duties. He noted the plaintiff was looking for suitable employment and had a current work capacity.
146 A/P Boffa thought the plaintiff’s medical conditions and limited training, experience, and local availability of suitable employment remained barriers to a return to work to be overcome by medical restrictions and retraining. He thought the plaintiff’s capacity would not alter in the foreseeable future and he did not require review.
The Defendant’s vocational evidence
147 A number of reports were provided by Recovre, initially in terms of return to work plans and later, suggesting suitable jobs for the plaintiff.
148 In early May 2018, Recovre suggested the following roles as being suitable for the plaintiff:
(i) non-emergency patient transport officer
(ii) supply and distribution manager
(iii) office manager
(iv) parole officer
(v) property manager
(vi) inspector and regulatory officer.
149 Current suitable employment options as at 18 May 2018 were identified as supply and distribution manager, officer manager, inspector and regulatory officer, parks and public gardens, cleaner, parole officer, patient transport officer and property manager.
150 In the context of those suggested jobs, A/P Boffa’s opinion was relied upon. It was also noted the Certificate of Capacity of 11 May 2018 provided by the plaintiff’s general practitioner, Dr Jallo, stated the plaintiff had “a capacity for suitable employment from 11 May 2018 to 8 June 2018”.
151 Recovre carried out an NES workplace assessment report to determine the critical physical demands of the plaintiff’s new position as a warehouse manager with Hunters.
152 In an NES outcome report later that year, it was noted the plaintiff’s capacity was downgraded to three days a week on 13 September 2018, due to “continued pain with injured foot”. Recovre would continue to work with the plaintiff in the job-seeking support phase in an effort to secure alternative employment within his medical restrictions to reach pre-injury hours.
153 It was noted, as of December 2018, Dr Mackellar thought the plaintiff had a capacity for suitable employment, with lifting not above 10 kilograms, driving required five-minute breaks after two hours of driving and he was suitable for office work only, not however, specifying the number of hours of work.
154 Janette Ash and Nickki Burden, vocational assessors, provided a report on behalf of Recovre in August 2019.
155 The authors described the plaintiff presenting –
“… with an incredibly varied skill set, having worked across multiple industries in both professional and unskilled roles. His most recent experience, however, consisted of working in the warehousing and hospitality sectors, which has included employment in a managerial and supervisory capacity. He presents with basic yet competent computer skills, and is noted to have used warehousing programs – systems in previous roles for various tasks, including stock management and the receipt of inward-outward goods. Therefore, based on his more recent experience, the plaintiff would be suited to clerical and managerial roles in warehousing and manufacturing environments, as well as managerial roles within the hospitality industry.”
156 Based upon the plaintiff’s education, work history and transferable skills, the following work options had been identified as suitable for him to consider:
(i)clerical roles in warehousing and manufacturing environments – despatch clerk, $1,356 gross per week; warehouse clerk, $12,051 gross per week;
(ii)warehouse manager, $2,519 gross per week;
(iii)accommodation and hospitality manager, $2,066 gross per week.
157 The authors noted, at that stage, the plaintiff was receiving Newstart and was currently exempt from job seeking, and was going to apply for a disability support pension. He reported he was motived to get back to work; however, he was unable to find a role that was suitable from a physical and/or vocational perspective, and he did not believe he could do any warehousing, security, policing or office work, and he was unable to think of any vocational interests or direction for the future.
158 The role suggested of despatch clerk was located at a manufacturing business in Dandenong with a salary of $55,000 to $60,000.
159 Computer-based tasks occupied 90 per cent of the work day, particularly completed while seated. There were opportunities to move around the office at regular hours if desired. Numerical data entry was more frequently used than word-based entry. There were also telephone based tasks, filing, photocopying and general administration.
160 General administration involved walking outdoors up to 150 metres to check pallet levels in the yard. This task arose less than once per hour on average. Walking outdoors was also required to monitor pellet conditions. There were no manual handling tasks required when completing these tasks.
161 In terms of the critical work demands of that despatch clerk role, the worker would be required to sit for the bulk of the work day; however, opportunities to stand and walk could be incorporated at regular intervals if desired. Static standing was not typically required when performing this role. Driving was not required to perform normal work duties.
162 The suggested job of warehouse clerk in a distribution warehouse in Springvale attracted a salary of $60,000 gross.
163 The warehouse clerk was responsible for data entry and administration relating to delivery of goods, including booking transport slots, delivery logistics and customer contact, and preparation of delivery paperwork.
164 The role involved computer-based tasks, the worker spending the bulk of the day completing those tasks within their office. Clerks were required to enter data into various systems and monitor and respond to email traffic. The role also involved checking stock levels. Walking in the vicinity of 300 metres per trip was required, with two to three trips typically performed per day. All walking was completed on level concrete flooring undercover, but with exposure to prevailing outdoor temperatures.
165 There were also manual administration tasks, with workers routinely printing and filing papers into binders and filing drawers.
166 The suggested role of warehouse (transport) clerk was based in a distribution warehouse in Somerton, with a salary of $23.38 an hour. The role was in a large distribution warehouse, with a high volume of despatch activity. Clerks were employed to manage the data entry aspect of despatch as well as booking transport slots, arranging load lists and truck packing plans, signing off on despatch paperwork and generation of activity reports for management interpretation and use. The role was entirely administrative, with no requirement for forklift driving or product handling at any time.
167 The job involved desk-based tasks, with computer-based tasks occupying the bulk of duties. There were also warehouse-based tasks, with workers on occasion walking into the warehouse and despatch areas to check pallets, measure the size of laden pallets and liaise with despatch staff. Filing and general administration was also involved.
168 There were no advertised vacancies for warehouse or despatch clerks in Shepparton as at 30 August 2019.
169 According to JobMarkets, there were fifty total estimated jobs for warehouse clerks in Greater Shepparton Council in 2019 to 2020.
170 The suggested job of supply and distribution manager involved planning, organising, direct control and coordinating the supply, storage and distribution of goods produced by an organisation.
171 A specific job was not identified. The physical requirements and mental demands of that role were generic and taken from acco.nz.
172 There were three advertised vacancies in this role in Shepparton as of 30 August 2019.
Surveillance
173 It was agreed there was 2.5 half hours of surveillance and 6 minutes and 20 seconds of film, of which about two minutes was shown.[40]
[40]T39; Exhibit 1 - film of 15 February 2019.
Overview
174 There is no dispute the plaintiff suffered a crush injury to his right foot with fracture of the intermediate cuneiform. Mr Edwards has also diagnosed neurogenic pain and injury to the TMT joints. In more recent times, the plaintiff has developed CRPS, although Mr Dooley thought that was a condition which would run a natural course.
175 The plaintiff’s claim for weekly payments and impairment benefits was accepted
Credit
176 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[41]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[41](2010) 31 VR 1 at paragraph [12]
177 Counsel for the plaintiff submitted the Court would be more able to accept the plaintiff’s case, and his evidence, “because of a stoic effort to go back to a job which ultimately, despite him giving it his best shot over a period of time, he could not perform”.[42]
[42]T57
178 It was submitted the plaintiff’s credibility had been reinforced by the fact he attempted to return to work in a role at Hunters which he should not have. That was a “pretty tough effort by the plaintiff to – an innovative and determined effort to try and get back into the workforce and probably, the only job he really knows, given the fact that in the last six or so years prior to suffering injury, that was the area in which he was employed”.[43]
[43]T57
179 In my view, the plaintiff is somewhat of a stoic, as his counsel submitted. As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd (No 2),[44] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[44][2008] VSCA 260 at paragraph [4]
180 There was no real attack on the plaintiff’s credit by counsel for the defendant. While there was very brief surveillance film shown, as I indicated during the hearing, it did not cause me any concern as to the plaintiff’s credit.[45]
[45]T57
Pain
181 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[46]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[46](Supra) at paragraph [11]
182 The plaintiff’s right foot pain and pain into his ankle is constant and worsens on weight bearing. As he recently described to Mr Edwards, the pain is throbbing, aching, heavy, hot and burning, and it woke him every night.
183 The right foot injury has resulted in significant difficulties with the plaintiff’s gait. At times outside the home, he has to use a walking stick for assistance. His altered gait has resulted in increasing back pain which he has reported to examiners.
184 Treatment has been conservative, with physiotherapy, use of a moon boot and a right L4 sympathetic block which was of little assistance. A range of medication was prescribed by Dr Weekes, including Lyrica and Endep, but this did not lessen the plaintiff’s CRPS complaints. At present, he takes Panadol Osteo or Panamax, but it has not really helped with the pain.
185 Pre incident, the plaintiff was very active in a range of physical activities including scuba diving, fishing, camping and motorbike riding. As a result of his foot injury, he is no longer to engage in these activities. As Mr Dooley noted, he would expect the plaintiff to have difficulty with impact leisure pursuits. Further, the plaintiff is unable to run and has difficulty with prolonged standing and walking.
186 A major consequence of the plaintiff’s injury has been the inability to resume unrestricted physical work. The consensus of medical opinion is to this effect. As Mr Dooley commented, from an orthopaedic viewpoint, he did not believe the plaintiff would be able to carry out regular heavy physical work, or work that involved prolonged walking, prolonged stair use and prolonged standing in the one position.
187 The plaintiff’s obvious difficulties on his return to work at Hunters confirmed this situation in circumstances where the job was described by his employer as warehouse manager.
188 Taking into account all the evidence and there being no submissions on the defendant’s behalf in relation to pain and suffering, I am satisfied the consequences of the plaintiff’s right foot impairment are “serious”. Given the longevity of his complaints and the lack of improvement, I am also satisfied this impairment is permanent.
189 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
Loss of earning capacity
190 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).
191 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
192 The former must be calculated by reference to the six-year period specified in s325(2)(f).
193 “Without injury” earnings consist of 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 from personal exertion had the injury not occurred.
194 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
195 The plaintiff carries the onus of proof in relation to economic loss, and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[47]
[47]Barwon Spinners & Ors v Podolak (supra) at paragraph [70]
196 I am therefore required to determine a “without injury” earnings figure.
197 Counsel for the defendant suggested $50,000 as the most appropriate figure; however, both the Worker’s Claim Form and the employer’s documentation set out weekly earnings of $1,130 a week – $58,760 (pre-tax hourly rate of $28.20/ 55 hours per week).[48] In my view, that is the appropriate figure. Sixty per cent thereof is $35,256 or $678 per week.
[48]T30
The Defendant’s submissions
198 Counsel for the defendant was critical of the plaintiff’s failure to provide any current documentation certifying the plaintiff is totally incapacitated as he claims. It was submitted there was no evidence from the plaintiff’s general practitioner in this regard, or any medical support whatsoever that the plaintiff is unable to engage in any work. Even Mr Edwards gave him a capacity for suitable sedentary work.[49]
[49]T43
199 Reliance was also placed on A/P Boffa’s view that the plaintiff was able to return to pre-injury hours, but not pre-injury duties, and that he had a current work capacity.[50]
[50]T44
200 While the plaintiff had a “red hot crack” at employment, it was submitted he went back to a job at Hunters that he should not have. It was conceded the plaintiff cannot return to work on hard, uneven and concrete surfaces with heavy lifting, so of course he was not going to be able to do the job at Hunters.
201 While the plaintiff said he could not do heavy lifting or be on his feet all day if the job was light, he conceded he could do it, “albeit with difficulty”.
202 Counsel relied on Ms Ash’s comments as to the plaintiff’s “incredibly varied skill set” and his computer skills.[51] Based on his more recent experience, she thought the plaintiff would be suitable for clerical and managerial roles in warehousing and manufacturing, and also within hospitality.
[51]See paragraph 157 of my judgment
203 It was submitted all the jobs suggested by Ms Ash were suitable, although only some were focussed on in cross-examination to “make the point” the plaintiff had the requisite capacity.[52] Further, the wages for those jobs obviously far exceeded the threshold. Even if the plaintiff could work 90 per cent or 60 per cent of the time as a despatch clerk, he would earn in excess of $678 per week.[53]
[52]T48
[53]T46
204 Counsel submitted the roles and relevant tasks had been identified. There are jobs available in the Greater Shepparton Council area for supply and distribution managers, “not that it is said that is necessarily part of the test”.[54]
[54]T46
205 It was submitted there are plenty of jobs that the plaintiff could do “sitting at a computer all day with paper”. That is, in a role in an office environment, of input and output within the despatch of a warehouse.[55]
[55]T47
206 It was submitted the reality was that people are not tied to the desk eight hours a day and it would be a nonsense to suggest otherwise. The suggested job of warehouse clerk involved sitting for about intervals of thirty minutes.[56] It was submitted it was not sufficient for the plaintiff to say, “I might have some difficulty doing that”. The fact was, he had a capacity.
[56]T47
207 It was submitted that Mr Dooley, in fact, did do an analysis of the suggested jobs, noting the plaintiff could not do heavy physical work. Mr Dooley had gone through the list of jobs suggested, having been provided with the job descriptions, and concluded they were appropriate for the plaintiff.[57]
[57]T49
208 Further, counsel for the defendant pointed out that any back injury “did not raise its head” in cross-examination, when the plaintiff had an opportunity to mention it.[58]
[58]T43
The Plaintiff’s submissions
209 Counsel for the plaintiff submitted it was a “joke” to say the plaintiff presented with an incredibly varied skill set.[59] It was conceded the plaintiff presents with basic computer skills, but counsel asked – “what job exists that you could work all day at a desk doing that”.[60]
[59]T50
[60]T51
210 It was submitted the plaintiff has had very limited experience in the workforce and has very limited skills. He had worked for about twenty or twenty-one years in the police and armed forces in security. Other than that, he had a few casual jobs here and there, and then warehouse managerial positions
211 Although the plaintiff went back to Hunters in a managerial warehouse position with a sympathetic employer who knew of his injury, there was still manual work involved. He experienced increasing symptoms, and his hours needed to be reduced, even though he had up to a dozen breaks during the day.[61]
[61]T51
212 Counsel for the plaintiff submitted the question of whether the plaintiff has the capacity to work in a sedentary role must be considered looking at the worker holistically[62] as the Court stated in Richter v Driscoll.[63]
[62]T52
[63]Supra
213 Further, while counsel for the defendant submitted there were a lot of the suggested jobs available, there were no advertised vacancies for despatch or warehouse clerks in Shepparton as of 30 August 2019.[64] Some of the jobs suggested were actually in Melbourne.[65]
[64]T52
[65]T53
214 Counsel for the plaintiff was critical of Mr Dooley’s lack of analysis of the suggested jobs – “just giving a tick” to all of them.[66]
[66]T50
215 While Mr Edwards deferred to the opinion of an occupational physician, he would limit the plaintiff to part-time employment.
216 It was submitted there was no such job that existed in the community that did not involve some or all of the restrictions Professor Boffa thought were appropriate for the plaintiff.[67]
[67]T56; paragraph 142 of my Judgment
217 Further, having carried out a detailed analysis, vocational assessor, Mr Hartley, thought all the suggested jobs were unsuitable for the plaintiff.[68]
[68]T56
218 It was also submitted Mr Edwards had conducted a more thorough, detailed clinical examination of the plaintiff’s lower foot and ankle compared to a fairly cursory examination by Mr Dooley.[69] Mr Edwards found very significant abnormalities on examination. His finding of injury to the TMT joints, as well as neurogenic pain, was emphasised, as was the effect that those issues would have on the plaintiff’s day-to-day activities.[70]
[69]T50
[70]T54
219 Finally, there was no dispute about the diagnosis of CRPS.[71] No treatment has been recommended for “this indefinite injury.”[72]
[71]T54
[72]T55
Overview
220 Given my findings as to the plaintiff’s credit and stoicism, I accept his evidence that while he would be prepared to try, he would have difficulty with various tasks within the range of jobs suggested. Ongoing pain in his foot would be aggravated by any weightbearing activities.
221 While practitioners such as Mr Brearley considered the plaintiff was confined to management-type work, I accept that warehouse managerial roles do involve hands-on work as the plaintiff has described, and was the case at Hunters, confirmed by Mr Billman and Mr Serra. In that role, the plaintiff experienced significant difficulties and was unable to continue to work on reduced hours, even with many breaks during the day.
222 I accept the plaintiff’s capacity for suitable employment is very limited, despite the absence of current certification from any general practitioner in these terms. The restrictions imposed by those who have examined the plaintiff are still quite significant. As counsel for the plaintiff submitted, it would be difficult to think of a job which complied with the restrictions imposed by A/P Boffa.
223 Further, I agree with Mr Hartley that the vocational assessors who have suggested various jobs have overstated the plaintiff’s transferable skills. I prefer his detailed analysis of the plaintiff’s capacity and his opinion as to the unsuitability of the suggested jobs
224 The plaintiff does not have any experience in office work, save for clerical duties in his role as a senior constable many years ago. He was educated to only Year 10 and has no tertiary qualifications. I accept his computer knowledge is somewhat outdated and is adequate, rather than having any proficiency. As Mr Hartley, commented, the plaintiff’s numeracy and his digital literacy was adequate for his previous jobs but was not at a “commercially functional level for clerical, administrative or higher management roles”.
225 While Mr Edwards, foot surgeon, conceded an occupational physician is the best to comment, after a very extensive physical examination, he suspected the plaintiff was only suitable for part-time employment.
226 Mr Dooley did not explain the basis of his view the plaintiff was fit for the range of suggested jobs, simply stating this was the case.
227 Mr Hartley, vocational assessor, concluded none of the jobs were suitable.[73]
[73]T56
228 As counsel for the plaintiff submitted, relying on Richter v Driscoll,[74] when considering loss of earning capacity, the plaintiff has to be looked at “holistically”.
[74]Supra
229 In that case, the Court of Appeal held the construction of no current work capacity was unduly narrow and that the Medical Panel’s earlier consideration of the “light process worker” option incorrectly focussed entirely upon the applicant’s physical capacity to undertake the duties described in the assessment.[75]
[75]Paragraph [103]
230 The Court reasoned that a return to work in employment requires more than a physical capacity to engage in a task or tasks. The employment must be “suitable employment”. That definition plainly shows the physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes “suitable employment”.[76]
[76]Paragraph [76]
231 The question whether a worker is able to return to work in “suitable employment”, according to the Court, specifically requires consideration of matters travelling beyond physical capacity to perform a task.[77]
[77]Paragraph [77]
232 The question whether a worker has an inability to return to work in pre-injury employment must encompass consideration of circumstances akin to, but not necessarily limited to, the matters set out in paragraphs (a)(ii), (iii) and (iv) of the definition of “suitable employment”.[78]
[78]Paragraph [77]
233 The construction which the Court placed on the definitions of “no current work capacity” and “suitable employment” was:
“… that whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances — these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce. … .[79]
…
The other, closely allied, way in which the matter may be put is shown in the passage of the judgment of Fletcher Moulton LJ in the same case, where his Lordship referred to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’.”[80]
[79]See Cardiff Corporation v Hall [1911] 1 KB 1009 at 1027 and Richter v Driscoll (ibid) at paragraph [95] citing Cardiff at 1009 and 1020
[80]Richter v Driscoll (ibid) at paragraph [96]
234 Osborne JA agreed with the Court that the appeal should be allowed and that the ability of a person to return to work in employment does not simply depend on the capacity of that person to physically undertake particular tasks. His Honour thought the ability to return to work in employment must be addressed holistically.[81]
[81]Richter (ibid) at paragraphs [143]-[145]
235 The Court also clarified that Barwon Spinners[82] did not decide the definition of “suitable employment” focussed solely upon a worker’s physical capacity to undertake a task.
[82] Barwon Spinners Pty Ltd & Ors v Podolak (supra)
236 In those circumstances, in addition to the plaintiff’s physical capacity, which I have found is significantly limited, and his lack of transferable skills, I am permitted to take into account his age of fifty-two and the fact he is coming towards the end of his work life. Further, he lives in Rural Victoria where employment opportunities are limited, with no vacancies for some of the suggested jobs as at August 2019.
237 Taking into account all the evidence, I am satisfied the plaintiff does not have the ability to earn in excess of $678 per week.
238 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
239 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements ss (g).
240 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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