Robson v Victorian WorkCover Authority
[2013] VCC 1978
•12 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-13-00199
| STUART ROBSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 21 November and 10 December 2013 | |
DATE OF JUDGMENT: | 12 December 2013 | |
CASE MAY BE CITED AS: | Robson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1978 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury – injury to the left knee
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a)
Cases Cited:Phelan v Transport Accident Commission [2013] VSCA 306; Smorgon Steel Tube Mills Pty LtdvMajkic [2008] VSCA 230; Acir v Frosster Pty Ltd [2009] VSCA 454; Sodexho Australia Pty Ltd v Rowe [2009] VSCA 298
Judgment: Leave granted to the plaintiff to bring proceedings for the recovery of pecuniary loss and pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh | Hounslow & Associates |
| For the Defendant | Mr P B Jens | Thomsons Lawyers |
HIS HONOUR:
1 This is an application for leave pursuant to s134AB(16) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for pain and suffering and pecuniary loss damages. The injury relied on is to the left knee and the impairment is to the left lower leg. The definition in s134AB(37)(a) of “serious injury” is relied on. The paragraph (c) application did not proceed.[1]
[1]Transcript (“T”) 1
2 The defendant concedes a compensable injury was suffered to the left knee. The only issue for determination is whether the plaintiff has suffered a permanent loss of earning capacity of 40 per cent or more.[2] Pain and suffering consequences are conceded as meeting the definition of “serious”.[3]
[2]T22 and s134AB(38)(e)(i) and T125 and T134
[3]T22
3 I note the recent repeal of s134AE of the Act and the Explanatory Memorandum and Second Reading Speech that accompanied the repeal. Nevertheless, clear, proper and adequate reasons are required. It has been said often that some serious injury applications involve a substantial amount of “value judgment” which does not, of itself, admit detailed reasoning that is explicit. To some degree elements of fact, degree and value judgment are often involved in these assessments.[4] Nevertheless, the plaintiff has the onus of proving the necessary percentage loss on the balance of probabilities.
[4]Phelan v Transport Accident Commission [2013] VSCA 306 at paragraphs 3 and 58
4 The plaintiff is aged forty-five years and started working for Bev Marks Beds (Australia) Pty Ltd (“the employer”) in July 2005 as a furniture removalist. He suffered his injury on 31 January 2007 when a tallboy piece of furniture fell on his left knee.
5 He has had considerable treatment since, including three operations at the hand of Mr C Mills, orthopaedic surgeon. These occurred on 11 February 2008, 7 July 2010 and 19 November 2010. The third was a total knee replacement. The plaintiff has not worked since 17 November 2010. He has been certified as totally unfit for any duties by his general practitioner since that date and he continues to receive WorkCover at that total incapacity rate.
6 The medical material on both sides supports the impairment precluding the plaintiff from his heavy pre-injury duties as a furniture removalist. The issue then is really what residual capacity the plaintiff has for alternative “suitable employment”.[5]
[5]T22-23 and s5 of the Act
7 The plaintiff has generally been in heavy physical work for much of his life.[6] Years ago he had also worked in selling spare parts in the motor vehicle industry but this stopped due to a lengthy prison sentence.
[6]Plaintiff’s Court Book (“PCB”) 27
8 He is a man whose work experience is basically that of a labourer and driver, save for his work in motor vehicle spare parts. He only went to Year 10 at school.[7] He did a short computer course in 2012 which did not improve his computer ability.[8] It is really the only retraining he has been provided with since the subject injury. Funding for other retraining has been refused.[9] I find he has no real computer skills and no upskilling to speak of has occurred.
[7]PCB 27
[8]T87
[9]T87
9 He has a criminal history that included sentences of 20 months in prison in about 1995. He then served three years in prison from about 2000.
10 By way of previous medical history, he had some left knee problems from a football injury in 1997. His recollection of this is vague but it is clear that Mr Mills carried out some arthroscopic procedure at about that time. Mr Mills did not have access to archival records from the 1990s.[10] I accept that the plaintiff recovered fully from that injury before this injury on 31 January 2007.
[10]T103
11 I had the considerable advantage of hearing the plaintiff in cross-examination. He was a witness of credit.[11] I found him to be very frank and forthright. He was extremely candid about his previous criminal record, both in his affidavit and oral testimony.[12] Similarly, with respect to work that he does around home, including using a wheelbarrow, carting wood, carting soil, carrying timber and handyman work, he willingly described it.[13] I find that he has regularly worked around his house and maintained it very well. However, I accept he can only do 15 to 30 minutes of such work and then needs a half-hour break because of his knee.[14] The defendant is still paying for some help he needs at home. It also paid for adjustments to his residence on account of his disability.[15]
[11]T134
[12]PCB 34−35 and T35, T46-48
[13]T37-39, T41, T70-71
[14]T86
[15]T95-96
12 Similarly, he was refreshingly candid about his competence in selling spare parts in the motor industry in the early 1990s. He informed the Court how he had received an award and that he was highly regarded in that field by employers. He said he was able to present himself to the public and communicate with them readily. He agreed that he was highly skilled in that area and it was his imprisonment that brought that aspect of his working career to an end.[16]
[16]T44-45, T68-69
13 He found that in truck driving and furniture removalist-type work he was basically working on his own. He did not have to confront his prison record, in that he was barely dealing with people for any length of time. He was in some ways his own boss.[17]
[17]T46-47, T83
14 I also found him very reliable and honest with respect to his problems with alcohol.[18] He described the considerable issues he had in readjusting to life outside prison. The notes from the Gisborne Medical Practice described him being even suicidal.[19] A note on 21 February 2004 is very illustrative of the real problems for a man coming back into the community after three years’ imprisonment. He required a referral to a Bendigo psychiatric unit to assist in this regard.[20]
[18]PCB 34-35
[19]Defendant’s Court Book (“DCB”) 106 and T48
[20]DCB 107
15 His intake of alcohol at about that time was exceedingly heavy. He was having as much as twenty four heavy beers a day. He even admitted to drinking heavily while he was truck driving and described drinking eight to ten beers a day and then another ten to fifteen or so at night. He admitted he could be unsteady on his feet as a result of alcohol and had a fall on some steps. In the notes from Dr Aboud of 9 February 2010, this incident is referred to.
16 The plaintiff did not hesitate to agree that he had the capacity for a number of jobs in a shop or sales area. However, he did put a caveat on those matters in relation to standing for any length of time and lifting heavy objects. He admitted that he could do a bicycle repair type course, once it was explained to him that this did not involve anything at university level. He reiterated his inability to achieve any computer skills in spite of an eight-week course that was funded by WorkCover in that area. He does not have a computer. He does not know how to operate a computer and the course did not improve him in that regard. Already the relevance of his lack of computer skills has been demonstrated as it led to him being put off by the employer.[21]
[21]T87, T89-90
17 It is difficult to comprehend many jobs in the sales area that would not involve some computer skills these days. The plaintiff clearly felt that was a significant impairment to him working in those areas and I accept that evidence.[22] His temperament also limited him in a shop environment.[23] With the significant prison record that he has, he has the additional problem in not being comfortable in a job that has a public face about it.
[22]T66, T68, T87, T89-90, T91, T96
[23]T96
18 The impairment of his earning capacity was manifest early. After his first operation, he was off work for some weeks and then worked on light duties and reduced hours. After the second operation, he was also off work for some time and then on reduced hours and duties before getting back to full duties at some stage. By the time of the third operation, he had been on a regime of eighteen hours a week, being six hours by three days, performing light duties. Since then, he has had his knee replaced. After the knee replacement procedure, he has continued to experience ongoing pain in his knee that he would describe, he says, as a “constant ache”.[24] He describes how the pain is worse in cold weather and he uses a walking stick when confronting stairs and walking in heavy traffic in the city. He has difficulty walking on uneven ground. He requires a walking stick at times.[25] He needs to sit and stand.[26] He currently takes Endone, Panadeine Forte and Cymbalta.
[24]PCB 30
[25]PCB 30
[26]T65-66, T84
19 In the plaintiff’s up-to-date second affidavit, he describes that he still suffers constant pain as referred to in his first affidavit. Medication helps to a certain extent.
20 Turning to the medical evidence on earning capacity, it is the recent material in terms of judging his capacity that is most useful.
21 His general practitioner, Dr E Aboud, at the Gap Road Clinic in Sunbury, has continued to give the plaintiff certificates of total incapacity. In the Court Books, there are numerous letters and reports from this doctor, but his last word on the subject is on 27 October 2013.[27] While he there referred to a possible resurfacing of the patella by Mr Mills, it could not be clearer what this general practitioner thought about his patient’s earning capacity. He said:
“Mr Robson has no current capacity for any duties. His current incapacity is predominantly the result of the physical injury he suffered to his left knee on 31st January 2007.”[28]
[27]PCB 72
[28]PCB 72
22 He described how the plaintiff had quite a limited physical capacity for any manual duties and he got no significant benefit from a recent computer course. He considered that he was not sufficiently knowledgeable to work in any alternative employment with his limited education and narrow scope of experience over the years.[29] He thought that the plaintiff’s prognosis was not promising and he would need another knee replacement in the near future. This carried the risk of further complications and further incapacitation.[30] He commented on the job options provided by CoWork and he thought that all the duties therein described were not suitable for the plaintiff. He did not consider that his patient had any capacity to perform any of those duties currently or in the foreseeable future.[31]
[29]PCB 73
[30]PCB 73
[31]PCB 72
23 I accept the general practitioner’s evidence in relation to his patient as amounting to a total and permanent incapacity for suitable employment, taking into account his age, education, skills, work experience and his pre-injury employment, as well as the physical incapacity.[32] I find also this doctor is best placed of all the medical practitioners to judge residual work capacity having had contact now for nine or so years with the plaintiff.
[32]Section 5 of the Act
24 Mr Mills similarly provided a number of reports. Mr Mills noted, as far back as September 2010:
“Stuart is determined to return to work and do what he can.”[33]
[33]PCB 52
25 Following the knee replacement surgery, he thought that by November 2011, the situation was stable.[34] In his last report on 25 June 2013, while he said the knee replacement was very good, there was soreness in the patella, and he raised the prospect of it being resurfaced in the future.[35] He did not really comment on any residual earning capacity.
[34]PCB 54
[35]PCB 55
26 Mr Mills alone was required for cross-examination. His evidence was clear and well reasoned. In his view, the plaintiff was very young to have had the total knee replacement he had at age forty-two years.[36] The average age was sixty-five or seventy.
[36]T119
27 In regard to the suggestion of patellar resurfacing surgery, he did not advise it. The plaintiff is too young. It would give him about a 50 per cent prospect of improving pain[37] but he should put it off for as long as he can.[38] It involves complications. In ten years or so he thought the plaintiff will need to have it, but really the better view is that it is surgery that should be had only once in a lifetime.[39] While it may improve pain management, it would lead to more restrictions than he has presently.[40] After a resurfacing procedure a return to work in fact means –
“… he has a very great risk of suffering patellar button wear and ultimate failure of his extensor mechanism earlier than would otherwise be the case.”[41]
[37]T107-108, T110
[38]T109, T113, T118-119
[39]T124-125
[40]T110, T117
[41]T109
28 With respect to capacity for suitable employment, his view was agreed as being a very pessimistic one.[42] He supported the opinions of the general practitioner in that regard.[43] Both doctors saw the plaintiff numerous times. Mr Mills pointed to the problems with posture, climbing ladders, lengthy walking, lengthy standing, kneeling and carrying over 10 kilograms.[44] The motor spare parts job suggestions were not suitable.[45] He felt an occupational therapist assessment would be advisable.[46] His final opinion was that this patient was not “… a realistic employment prospect”.[47] I agree.
[42]T128
[43]PCB 72
[44]T110-111, T116
[45]T116
[46]T114, T118, T120, T121
[47]T124
29 The physiotherapist, M Murcott, reported on 3 May 2011 that following the total knee replacement −
“He has had a poor recovery with significant delays in strength recovery. Stuart has full range of movement but still has reduced quadriceps strength. I believe the delay in recovery is largely contributed to by the patella (knee cap) being replaced as well as the femur and tibia joints. As a result this has caused many occasions for the leg to collapse when walking or using stairs. This has caused added delay in recovery.”
He goes on to say:
“I have witnessed Stuart’s knee collapse causing him to almost fall at his physiotherapy sessions, similar to his reports at home.”
And he says on the same topic:
“… I remember this happening on at least three separate occasions.”[48]
[48]PCB 74
30 He commented on the incident that is recorded in the medical notes of the plaintiff’s knee giving way when he was using an angle grinder at home in April 2011, which caused severe lacerations to his hand. In spite of some cross-examination about the absence of reference to the knee giving way in the ambulance and the Royal Melbourne Hospital notes, I accept the plaintiff’s evidence that this was the cause of his hand accident. There is some reference to the knee condition in those hospital documents.[49] The account in the general practitioner’s notes on 12 April 2011 is entirely consistent with what the plaintiff has described both in his affidavit and oral evidence.[50] I accept that evidence.
[49]Exhibit D
[50]Exhibit C, DCB 126-127, PCB 31
31 The medico-legal material is limited in its use on the issue for determination. For example, Dr A Miller, who the plaintiff relies on, does not give any opinion after the knee replacement surgery.[51] The limitations that he puts on the plaintiff’s capacity for work, which are very significant, were before the major surgery in November 2010.[52] He thought that the plaintiff was totally incapacitated for his pre-injury duties when he last saw him in October 2010, but this is a month or so before the knee replacement. He noted:
“Mr Robson is keen to explore other options with regard to his employment and I suggest every effort be made to facilitate an upgrading of his current tasks.”[53]
[51]PCB 56-65
[52]PCB 60
[53]PCB 74
32 Associate Professor J Hart, orthopaedic surgeon, examined the plaintiff on 10 January 2012. He noted that the total knee replacement procedure had –
“… resulted in some improvement in his knee, but he still has moderate, intermittent pain and is using a stick for walking.”[54]
[54]PCB 82
33 He thought that the prognosis meant the condition would not resolve and he also considered stability had been achieved. This was essentially an AMA percentage impairment report and does not really assist on residual earning capacity, other than reflecting a permanent condition.
34 Mr Owen Deacon, orthopaedic surgeon, examined the plaintiff on 20 May 2013. He thought that the operation had been successful to a limited degree and was somewhat surprised that the patella had not been resurfaced. He thought the plaintiff needed that further surgery to resurface the patella now or in the near future.[55] He agreed with virtually every other doctor that the plaintiff –
“…will never again be able to return to full-time pre-injury duties as a truck driver delivering and fitting furniture.”[56]
[55]PCB 105
[56]PCB 106
35 He thought, with respect to certain vocational job options, including radio despatch operator/fleet controller, weighbridge operator and despatch clerk, that these were all possibilities. However, he noted that the plaintiff left school early and after two courses, was relatively unskilled with computers. Mr Deacon seemed to be saying that with respect to lack of education –
“… that is a problem that may be insoluble but I agree in principle with the employment options isolated.”[57]
[57]PCB 107
36 He noted how it was likely that the plaintiff would require further surgery in the form of a revision, as well as patellar resurfacing. In that sense, he did not think the plaintiff’s condition was entirely stabilised as the arthroplasty of the patella was indicated.[58]
[58]PCB 107
37 A very lengthy report from Dr David Middleton, occupational health and rehabilitation consultant, followed an examination in October 2013. This report dealt with virtually every other medical report, radiological investigation, as well as the rehabilitation and vocational assessment reports. Dr Middleton said, after assessing the CoWork report and other documentation, that essentially that report failed to address the physical requirements of each and every proposed occupation and that they exceeded the plaintiff’s safe physical capacity.[59] With respect to the suggestion of the clerk and bicycle mechanic jobs, he pointed to the plaintiff’s lack of qualifications.
[59]PCB 132
38 This rehabilitation doctor takes into consideration the following postural endurances that he clearly accepted the plaintiff has:
“● Sitting in a confined space Mr Robson states he can sit for 3 minutes before he must move. If he is able to stretch out the left knee to full extension, his endurance is up to 60 minutes, provided the left leg can be moved about during that period.
● Standing in one position the endurance varies between 45 and 60 minutes, again provided he is able to move about.
● Walking, Mr Robson assessed his capacity at around 500 metres which would take him 30 minutes to complete, equating to one km an hour.
● Driving, Mr Robson can only operate vehicles that don’t require the use of his left leg as this is weak and unreliable.”[60]
[60]PCB 132
39 I accept these limitations are very real indeed in terms of virtually any unskilled occupation in the real world of commercial employment. Dr Middleton also states the following limitations apply:
“Having examined Mr Robson, it is my opinion that he no longer has a reliable physical capacity and that he would require the provision of rest breaks as required and have the ability to change posture on an as‑needs basis.
Mr Robson is no longer capable of lifting heavy weights and needs to avoid repetitive lifting. It is my opinion that Mr Robson’s lifting should be confined to a maximum effective weight of 5 kgs, limited to between hip and mid-chest height on an occasional basis and 3 kgs on an intermittent basis.
Mr Robson is unable to squat or kneel, has difficulty even climbing a few steps to the front door of his residence, preferring to walk around the house to the back door where there are is (sic) no stepping required.
Mr Robson should not attempt to climb ladders. When it comes to walking, the pavement needs to be smooth and he needs to have the provision to use his walking stick. Traversing uneven terrain in my opinion in an occupational sense is unacceptably risk (sic) for Mr Robson to be expected to perform.
It is my opinion Mr Robson is unable to attend work on a full-time basis and that he could attend work between 3 and 4 hours in any one day, 2 or 3 non-consecutive days in any one week.”[61]
[61]PCB 132−133
40 I read these restrictions as effectively putting the plaintiff out of any suitable employment on a permanent basis as a result of his impaired leg function. This rehabilitation consultant goes on to say that the NES and CoWork reports should not be relied on as they do not identify “suitable” job options, bearing in mind the definition in s5 of the Act. He thought the prognosis was poor and he saw no likelihood of any significant improvement in the plaintiff’s physical capacity. He concluded by saying, “It makes the probability of Mr Robson returning to the workforce highly improbable” when commenting on the only attempt at any vocational re-education, which he noted had failed.[62]
[62]PCB 134
41 Three very lengthy reports from Mr Bill Radley, psychologist and vocational assessment specialist, are dated 23 May 2013, 24 May 2013 and 7 August 2013. These reports deal with the CoWork and NES suggested job options in some considerable detail. CoWork and NES were engaged by the defendant. Mr Radley conducted detailed testing that embraced vocational, intellectual and recognised psychological tests.[63] His test results saw him conclude that the plaintiff was:
“… a very reserved and suspicious person with limited social and interpersonal skills … .”[64]
[63]PCB 148-9
[64]PCB 139
42 His presentation in the witnessbox was consistent with limitations in relation to interpersonal skills. It was also consistent with what he said about the advantages of being out on his own driving a truck.[65]
[65]T46, T83, T96
43 Mr Radley said, in his first report:
“I believe that as a result of his left knee injury Mr Robson should be regarded as having no current work capacity to return to his pre-injury employment or in any similar employment.”[66]
[66]PCB 153
44 He thought also that he had no capacity to return to any type of alternative employment, nor for any type of occupational training and that applied to the future.[67] When sent some further vocational job options that were suggested, he said:
“As a result of the injury related physical impairment arising from his left knee injury alone, I do not believe that Mr Robson will be able to obtain or perform any full-time or paid part-time employment in the future. He is effectively unemployable.”[68]
[67]PCB 154
[68]PCB 175
45 It is worth noting that after the testing was carried out, Mr Radley again commented that the plaintiff had:
“… poor social and interpersonal skills and is only suited to work of a more task oriented manual – practical nature.”[69]
[69]PCB 149
46 Thus he stated the plaintiff was not fit for jobs in interpersonal, organising, supervisory or enterprising occupations.[70] I find he is unsuitable for sales type work. I accept the plaintiff was accurate when, in spite of keenness to work, he said of himself that he has not got the temperament to work in a shop environment.[71]
[70]PCB 152
[71]T96-97
47 In August 2013, further job options were sent to Mr Radley. He considered these suggestions and repeated again quite unequivocally:
“I do not believe that Mr Robson will be able to obtain or perform any full-time or paid part-time employment in the future. He is effectively unemployable.”[72]
[72]PCB 189
48 I accept Mr Radley’s opinions. His reports are comprehensive and the reasoning is clear.
49 Looking at the plaintiff’s medical evidence overall, it is clear that the total knee replacement that took place, at best, has only had limited success. The plaintiff is left with constant and significant symptomology that it was hoped surgery would resolve. This has not happened. It is only a 50 / 50 chance, patella resurfacing would improve pain. I accept Mr Mills, when he says it is some ten years away in any event and would not necessarily improve function. The procedure has its own complications for a man likely to live for forty years.[73]
[73]T104
50 Turning to the defendant’s medical material, Dr A Sillcock, occupational physician, saw the plaintiff once in April 2012. She then reported after receiving the NES vocational assessment report with its suggested seven suitable job options. Her opinion was:
“Mr Robson does not have a current work capacity because he needs re-training before a return to work can be considered.”[74]
[74]DCB 73
51 His lack of current work capacity would remain until he was considerably retrained.[75] She agreed with other doctors that the total knee replacement surgery had not produced a very good result. Dr Sillcock expressed a rather gloomy view:
“He will never re-gain full capacity and he will only ever be fit for sedentary duties.”[76]
[75]DCB 71
[76]DCB 74
52 With regard to the NES suggested jobs, she wrote back saying:
“Mr Robson does not have a capacity for work until he undergoes retraining. This has also been noted in the vocational assessment. I believe that he is physically capable of doing the jobs of radio despatch operator/fleet controller, weighbridge operator and despatch clerk but he needs retraining to do so. The other jobs identified are mostly performed standing and so are not suitable.”[77]
[77]DCB 77−78
53 The only retraining that this man has been offered is the computer course that has not improved his work skills. Accordingly, I read Dr Sillcock’s reports as saying that, unless some other course out there that the plaintiff could cope with was a realistic suggestion and open to him, he is effectively unemployable. It goes without saying that the jobs of radio despatch operator/fleet controller, weighbridge operator and despatch clerk these days would all involve some sort of computer-based tasks.
54 Mr M Shannon, orthopaedic surgeon, also only saw the plaintiff once. In March 2013, he agreed that the total knee replacement had “…only been partially successful and he does have ongoing problems …”.[78] He noted there was no exaggeration by the plaintiff.[79] He found objective signs of knee damage with crepitus and wasting.
[78]DCB 91
[79]DCB 92
55 His opinion on work capacity was:
“His knee condition has significantly influenced his work capacity
(a) He does not have a capacity for pre-injury employment or modified pre-injury employment.
(b) He does have a capacity for suitable employment predominantly sedentary with the avoidance of kneeling, squatting, climbing and heavy lifting .”[80]
[80]DCB 92
56 He thought he could probably perform the NES job suggestions but with the above restrictions. I do not accept that view. Mr Shannon takes no history of the plaintiff’s education, skills or work experience. The histories he takes are very brief. He does not list in any detail what medical material he was sent. He does not explain how this man, who he clearly accepts walks outdoors using a walking stick and yet could perform the duties in these NES jobs.
57 The vocational assessment reports have suggested a number of possible jobs.[81] These reports are nowhere near as comprehensive and thorough as Mr Radley’s. They do not include his extensive testing of the plaintiff. There are a number of other deficiencies in the NES and CoWork documents. The 30 May 2012 report from NES bases its view on only one medical report – that of Dr Miller dated 7 October 2010.[82] This was before the total knee replacement on 19 November 2010. Its Re-education Assessment Report of 16 July 2012 refers only to Dr A Sillcock’s report of 23 May 2012 by way of additional material.[83] This is a grossly inadequate medical basis to work from in attempting to comment on a worker in terms of a vocational assessment and his retraining capacity.
[81]DCB 231-263, 275-292
[82]DCB 276
[83]DCB 291
58 The CoWork report is difficult to follow in some respects. It suggests four potentially suitable occupations.[84] It has a long list of medical enclosures[85] which, on any view, point to a number of physical restrictions. In spite of this, the report suggests a forklift driver job is one of the potentially suitable options. The report ends with a forklift driver job vacancy advertisement.[86]
[84]DCB 232
[85]DCB 234
[86]DCB 263
59 That advertisement lists the daily duties as including “handling stock/ deliveries, pick and pack orders, general warehouse duties and using [a] computerised system”.[87] It also says:
“The successful candidate must possess the following:
·Be physically fit and able to lift heavy products if needed
·Intermediate computer skills.”[88]
[87]DCB 263
[88]DCB 263
60 The CoWork report is not credible in reconciling these required attributes with the medical opinions it purports to have reviewed.[89]
[89]DCB 234
61 On all the evidence, it is clear that the plaintiff has had a disappointing result from his total knee replacement and faces further surgery. There is really little cause for any optimism in the medical reports in relation to his prognosis being substantially improved. For the foreseeable future, the medical evidence points to a man with permanent restrictions. These are very considerable when one looks at any suitable employment for this plaintiff, given his age, education, limited skills and lack of any sedentary work experience in the market place.
62 The plaintiff has no qualifications for sedentary work. He has worked in jobs where he has been on his feet. Even spare parts work in an automotive workplace involves standing, fetching requested products, and a degree of lifting that at times can be heavy. It is far from sedentary.
63 Accordingly, when one looks at the plaintiff’s experience in the workplace, he has effectively had none that could be described as sedentary. Looking at the realities of the labour market and the terms of s5 of the Act,[90] the plaintiff is effectively out of the workforce for the foreseeable future. The commercial world and the realities of the labour market will not accommodate a worker who needs a half-hour break every half-hour or so.[91] A knee that collapses from just standing and turning and requires ambulance conveyance to an emergency department is consistent with an incapacity for any suitable employment for this worker.[92]
[90]Smorgon Steel Tube Mills Pty Ltdv Majkic [2008] VSCA 230; Acir v Frosster Pty Ltd [2009] VSCA 454 at paragraphs 186 and 188
[91]T86
[92]PCB 31 and T62, Exhibit C and DCB 126-127
64 As well as the plaintiff’s physical incapacity for suitable employment, it is noteworthy that he has a significant record of imprisonment. It is an additional impediment to reemployment when one takes “…a realistic approach to the question” of capacity for suitable employment.[93] He agreed with counsel for the defendant that some “sort of checks” might be done in regard to this aspect of his background.[94]
[93]Sodexho Australia Pty Ltd v Rowe [2009] VSCA 298 at paragraph 16
[94]T46
65 I accept the plaintiff is well motivated to find work.[95] This is consistent with him finding full-time jobs after release from prison. He expressed some hope and expectation with respect to his capacity to work[96] and doing a bicycle mechanic’s course.[97] However, optimism does not equate to capacity.
[95]T39-40, T81
[96]T68, T83-84
[97]T99
66 Given the physical problems he has, such as his need to sit and stand[98] and to take the breaks I have described when carrying out even self-paced work at home,[99] his optimism is not well founded. His actual physical and medical capacity does not match it.
[98]T47, T65-66, T84
[99]T86
67 For the reasons mentioned, I grant leave to the plaintiff to bring proceedings for the recovery of damages for pecuniary loss. In accordance with practice, I also grant leave with respect to pain and suffering damages.
68 I will hear the parties as to costs.
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