Rouget v Wurth Australia Pty Ltd
[2024] VCC 1494
•4 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-00836
| DAVID ERIC ROUGET | Plaintiff |
| v | |
| WURTH AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 & 3 September 2024 | |
DATE OF JUDGMENT: | 4 October 2024 | |
CASE MAY BE CITED AS: | Rouget v Wurth Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1494 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – workplace injury – whether loss of earning capacity meets threshold – right arm injury – whether plaintiff reliable
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Fox v Percy (2003) 214 CLR 118
Judgment: The plaintiff granted leave to proceed for pain and suffering only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Dunstan | Shine Lawyers Pty Ltd |
| For the Defendant | Ms M Cameron | Russell Kennedy Lawyers |
HIS HONOUR:
1 The dispute in this case centres on whether the plaintiff can satisfy the Court that he has sustained more than a 40 per cent loss of the gross income that most fairly reflects his earning capacity had the injury he sustained in May 2019[1] not occurred. At that time the plaintiff was employed as a salesman with Wurth Australia Pty Ltd (“Wurth”).[2] His injury was diagnosed broadly as carpal tunnel syndrome, with a right ulnar neuropathy to the right elbow region.[3]
[1] Plaintiff’s Amended Court Book (“PACB”) 16 at paragraph [13]
[2] PACB 15 at paragraph [9]
[3] PACB 17 at paragraph [19]
2In this case, the parties agree that the plaintiff has sustained a compensable injury to the right arm in the course of employment. It is further agreed the injury constitutes a serious injury within the meaning of paragraph (a) of the relevant definition contained in the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). It is further agreed the medical evidence demonstrates clearly that the plaintiff cannot return to his old position. Thus, the issue is narrowly focused on two matters:
(a) What is the figure that most fairly reflects his without injury earning capacity?
(i)Is it $120,000, which he earnt as a restaurant manager in 2022; or
(ii)Is it $72,229, which is what he was earning with the defendant?;
(b) What is his retained earning capacity; and
(i)if it were deployed, what sum of money on an annualised basis could he earn?
The defendant put into issue the reliability of the plaintiff’s evidence on both key issues. It was submitted that if his evidence were not reliable then no findings could be made in respect of what his retained earning capacity was. If that occurred then his application must fail. I accept that is the situation here and the plaintiff’s case on this aspect of his application fails.
Background
3The plaintiff was born in France in 1974.[4] He trained as a chef in London and worked in a large variety of hospitality roles thereafter.[5] He gave evidence he worked in kitchens, as a waiter, and also as a restaurant manager, across a variety of different venues.[6] In about 2008, he went to the Swiss Alps and worked at a resort before the global financial crisis struck and he returned to the United Kingdom.[7] He picked up his hospitality work again until about 2012.[8] At that time, he and his wife relocated to Australia.[9] He gave evidence he worked at a number of restaurants in Melbourne over several months and then began working for Le Creuset as a salesman at Myer Emporium.[10] He did this for a few years before beginning to work for a company called “Sell Your Cars Fast”.[11] Once again, this was sales work.[12] During his employment there, he applied for and was successful in obtaining a position with the defendant as a sales representative in car parts.[13] He began there in January 2019.[14] His base salary was $48,000 plus car, phone and laptop, and he made commissions.[15] I will come to detail the exact earnings of the plaintiff further on.
[4]PACB 14 at paragraph [2]
[5]PACB 15 at paragraph [4]
[6]Transcript (“T”) 35, Line (“L”) 25 ꟷ T36, L31
[7]PACB 15 at paragraph [4]
[8]Ibid
[9]PACB 15 at paragraph [5]
[10]Ibid
[11]Ibid
[12]Ibid
[13]PACB 15 at paragraph [9]
[14]Ibid
[15]PACB 15-16 at paragraph [10]
4As the injury is not greatly in dispute, I will pass over the relevant medical chronology briefly. His job with the defendant involved him having to manually carry heavy manuals which described the goods for sale.[16] The plaintiff began experiencing sharp pains in the wrist in about May 2019.[17] It was the carrying of the manual and catalogue to which the plaintiff attributes his condition.[18]
[16] PACB 16 at paragraph [12]
[17]PACB 16 at paragraph [13]
[18] PACB 17 at paragraph [17]
5He informed his employer, went to his general practitioner and then began physiotherapy.[19] He was referred for neurophysiological testing by Dr Janaka Seneviratne, who diagnosed his condition.[20] He had ultrasound-guided right carpal tunnel injections and was then referred to see Associate Professor Michael Leung, plastic and reconstructive surgeon.[21] He came to surgery on the right carpal tunnel with associated decompression of the ulnar nerve at the right elbow in October 2019.[22] He unfortunately continued to experience difficulties with the right arm. He was referred to a pain specialist and then a specialist orthopaedic surgeon, Mr Matthan Mammen, for a second opinion.[23]
[19] PACB 16 at paragraph [15]
[20]PACB 34
[21]PACB 76
[22]PACB 77
[23]PACB 88
6He attempted a return to work in May 2020, but it was not successful.[24] He ultimately came to have further surgery in July 2020, being a right carpal tunnel release and right ulnar nerve release, performed by Mr Mammen.[25] He continued to have numbness and tingling in the hand in his ulnar nerve distribution.[26] He was referred to a neurologist for further diagnosis, but that was inconclusive, as he considered there had either been a recurrence of the carpal tunnel and ulnar nerve dysfunction, or the onset of a complex regional pain syndrome.[27] He had a trial of Gabapentin in respect of his pain, but discontinued it due to the side effects.[28] He came under the care of Dr Nick Christelis at Pain Specialists Australia in about May 2021 and it was suggested that he might trial a spinal-cord stimulator inserted in the cervical spine (known as an “implantable pain treatment” (IPT”).[29] A trial of the IPT was performed by Dr Christelis in October 2021,[30] with a good result.[31] The plaintiff had full implantation of the IPT on 30 November 2021.[32] The plaintiff resigned from his role with the defendant toward the end of 2021.[33] Shortly after resigning, he took a position with PTW, a car parts sales firm, in January 2022.[34] This company was much smaller than the defendant and he described it as being in the same type of business.[35] He was paid a salary of about $65,000 per annum.[36] However, he ceased this work after about three months because he alleges his symptoms were being aggravated.[37]
[24] PACB 18 at paragraph [29]
[25]PACB 49-50
[26]PACB 100 and 102
[27]PACB 107-108
[28] PACB 18 at paragraph [34]
[29]PACB 116
[30]PACB 51
[31] PACB 19 at paragraph [38]
[32]PACB 19 at paragraph [39]; PACB 52
[33] PACB 21 at paragraph [52]
[34] PACB 21 at paragraph [53]
[35] T42, L6-11
[36] PACB 21 at paragraph [53]; T42, L12-15
[37]PACB 21 at paragraph [53]; T42, L21-25
7There was much focus placed on events which occurred during 2022 and for that reason I will detail them now.
8He worked at PTW for some three months, that is, until early March 2022 and, on his evidence, was unable to continue. However, on 13 January 2022 the plaintiff consulted Dr Rajiv Chawla at Pain Specialists Australia, who recorded he was “doing pretty well”.
9On review, in Dr Christelis’s rooms on 2 March 2022,[38] he was recorded as having a “95 per cent benefit” with the IPT, but was struggling with a tingling sensation in the right arm during long periods of sitting. He was reported to be able to manage activity well.
[38]Defendant’s Amended Court Book (“DACB”) 131
10On 28 March 2022, he was reported by his treating doctor to have “pain under excellent control”.
11I interpolate to add that, after that consultation with his treating doctor, he did not see him again, save for a vaccination, until 17 May 2023.[39] I consider this important, because if he was in pain or functionally compromised, it is likely he would have consulted his treating doctor or specialist. The fact he did not see his treating doctor implies he was not in pain, nor so functionally impaired that he needed to see his doctor.
[39] T65, L28-30
12The plaintiff commenced working[40] at the Third Wave Café in Albert Park on 19 March 2022.[41] It is here he was employed as a restaurant manager and was on a salary of $120,000 per annum.[42] In his first affidavit, he deposed to having to leave that job because of problems with his right arm.[43]
[40] PACB 175 at paragraph [1]
[41] PACB 21 at paragraph [54]
[42] PACB 21 at paragraph [54]
[43] PACB 21 at paragraph [54]
13On 14 June 2022,[44] the Medical Panel saw the plaintiff and examined him. It recorded his symptoms in the following terms:
“He currently complains of intermittent pins and needles in the right arm at night, with occasional symptoms in the right hand, particularly involving the middle, ring and little fingers of the right hand. He also complains of triggering of the ring and little fingers of the right hand. … .”[45]
[44]PACB 166
[45] PACB 168
14In his first affidavit, sworn 8 September 2022, he deposed hat he believed he would not be able to return to work “indefinitely”.[46] Relevantly however, he registered an ABN number five days later and began driving for Amazon Flex (“Amazon”) and Uber.[47] At Amazon, he worked for five days and then for Uber, he worked for about four months.[48] It is relevant to note the details of his Uber and Amazon work were not contained in his supplementary affidavit sworn 5 August 2024.[49] It was only when the plaintiff began giving evidence-in-chief that he sought to amend his affidavit to include reference to both the Uber and Amazon work and the registration of an ABN number.[50]
[46] PACB 21 at paragraph [55]
[47] DACB 88, 100 and 294
[48]T32, L3-12
[49] PACB 23-27
[50] T31, L2-31
15He saw Dr Chawla on 14 September 2022 and was recorded as being pain free and not on any medication.[51]
[51]PACB 145
16After ceasing work with Amazon and Uber, he then began working as a chauffeur driver in February 2023 for a company called Unity.[52]
[52] PACB 24 at paragraph [6]
17On 26 May 2023 he had a revision of the IPT performed to more deeply locate the stimulator device. He continues working with Unity as a chauffeur.
Was the Plaintiff’s evidence about his capacity for work reliable?
18The defendant put in issue whether the plaintiff had given accurate evidence about his capacity to work historically and also his current work capacity. Particularly, this related to the period after the IPT was inserted. I first note it is agreed the plaintiff cannot return to his old position with the defendant. This matter was conceded by the defendant, and, in fact, the evidence on this point is all one way.[53]
[53]See the reports of Dr Joseph Slesenger at DACB 49 and Dr David Ho at DACB 13
19Starting with the plaintiff’s evidence. The plaintiff gave evidence he returned to work after the implantation of his spinal-cord stimulator, with PTW, as a sales representative.[54] He worked full time five days per week in that position; three to four days per week in the office, with one or two days on the road.[55] This position commenced in early January 2022 and ceased in early March 2022.[56] Those dates are important for reasons I will come to. The plaintiff gave evidence he had to stop work because of the problems he was having with his right wrist and arm.[57] It is important to understand the chronology surrounding his commencement and his cessation of work with PTW, because it illuminates what I consider to be the plaintiff’s improving physical condition which led him to work with PTW and gave him the confidence to take on more ambitious roles, such as at the Third Wave Café. The sequence of events strongly suggests his evidence as to why he left PTW and the Third Wave Café was unreliable and further that his occupational capacity was greater than that deposed to.
[54]T42, L6-11
[55]T42, L6-20
[56]T43, L6 and T46, L7-8
[57]PACB 21 at paragraph [53]
20That chronology begins in early 2021, when the plaintiff was under the care of Mr Mammen. By March 2021, Mr Mammen had concluded there was unlikely to be a structural problem in the right arm causing the ongoing symptoms and so was considering a diagnosis of chronic regional pain syndrome.[58]
[58]PACB 112
21As a result, Mr Mammen referred the plaintiff to a pain specialist at Pain Specialists Australia. He was trialled on Gabapentin, but due to side effects, the pain specialist, Dr Christelis (at the same clinic), suggested either radiofrequency denervation or the implantation of an IPT.[59] The plaintiff proceeded to the trial of the ITP on 13 October 2021.[60] Almost immediately, it was noted there was significant improvement from the IPT.[61] No pain was noted at all approximately a week later.[62] In particular, it was recorded by the nurse that the plaintiff was “fully mobile and active once again, able to use hands without any pain or wekness (sic), able to drive with both hands again and do activities with ease”.[63] It was in that setting Dr Christelis recommended the plaintiff have a permanent IPT implanted.[64] That implantation occurred on 30 November 2021.[65] Once again, there was almost immediate improvement after implantation.[66] The notes record the plaintiff “is able to be mobile and active successfuly (sic) and with no restraints”.[67]
[59]PACB 116
[60]PACB 19 at paragraph [37]
[61]PACB 130
[62]DACB 133
[63]Ibid
[64]PACB 132
[65]PACB 19 at paragraph [39]
[66]T66, L22-27
[67]DACB 132
22This chronology clearly indicates the plaintiff was having both a high degree of pain relief and a substantial resolution of his functional mobility problems as a result of the IPT. In that setting, the plaintiff came to commence work at PTW. The plaintiff’s evidence was that this was similar work to the work he was performing with the defendant.[68] It will be recalled the medical evidence was that the position with the defendant was incompatible with the plaintiff’s injury and the plaintiff himself deposed as such. To then take a similar position with the defendant suggests the plaintiff had the opinion that his condition after the IPT was improved to such an extent that he could perform these similar duties. PTW appears to be a job which he sourced for himself and commenced on a full-time basis at the start of January 2022. Two weeks later his pain specialist, Dr Chawla, recorded that he was “doing pretty well”.[69] So much so that the next review was booked in for some three months later. I have commented above that this suggests that, in terms of pain and functional capability, the plaintiff was coping with his position. When he did come to see his pain specialist again for review on 2 March 2022, he was recorded as having a 95 per cent benefit from the IPT and he was managing activities well, but was struggling in front of the laptop for long periods.[70] His specialist at the time recorded again that he was “doing really well”.[71] I have set this out because it stands in contrast to the plaintiff’s affidavit which deposes he had to cease work at PTW because of the problems he was having with his right wrist/arm.[72] This is nowhere recorded in the treating doctor notes, the nursing notes, nor the recordings of the pain specialists themselves, Dr Chawla and Dr Christelis.
[68] T42, L6-7
[69]PACB 141
[70]DACB 131
[71]PACB 144
[72]PACB 21 at paragraph [53]
23As I have set out, there is no recording from the treating doctor that the plaintiff attended during this period of time complaining of pain in the right wrist and arm. It seems entirely unclear why, at the very time when he was ceasing work with PTW, no complaint was made to Dr Christelis at the review on 2 March 2022 and Dr Christelis, in fact, had a recording that the plaintiff was doing really well. I consider this to be a very significant inconsistency. In cross-examination, when taken to these various entries, the plaintiff said, every time he went to consult with the pain specialists there was a reprogramming of the IPT and this indicated his ongoing problems.[73] His evidence was to the effect that this is why no specific complaints were recorded as to his difficulties at work.
[73]T74, L23-24
24I do not accept this explanation as to why there is an absence of recording in the Pain Specialist Australia notes and the reports of the specialists. Rather, I consider it more likely that they specifically asked about his pain and his functional capacities and recorded what he said. Reprogramming was no doubt to seek improvement on that situation. But this is not to imply that there was anything functionally wrong or overwhelming in respect of his pain. I reject this evidence of the plaintiff.
25Then, turning to the plaintiff’s employment at the Third Wave Café. The plaintiff gave evidence this commenced on about 19 March 2022 and ended in July 2022 because “[he] simply could not continue because of the pain [he] was getting”[74] The timing of his commencement with the Third Wave Café does not fit with the plaintiff’s evidence as to why he ceased at PTW. The plaintiff described feeling pain when his work at PTW would exceed twenty to twenty-five hours a week.[75] Conversely, the Employment Agreement with the Third Wave Café required a fifty-hour working week and the plaintiff gave evidence of working over fifty hours some weeks.[76] This is a further reason why I would reject his evidence in respect of why he ceased at PTW; if it was the case the plaintiff was struggling at PTW as a salesperson, where he had minimal lifting and carrying tasks, and less hours,[77] it is inconsistent with him then taking a job at the Third Wave Café, where he had to do a large amount of lifting and carrying of plates and other items around the restaurant.[78] Rather, this strongly suggests the plaintiff was, in the words of Dr Christelis at the start of March 2022, “doing pretty well”[79] and had decided he was functioning so well that he could cope with the Third Wave Café position. This is also consistent with the consultation he had with his treating doctor on 28 March 2022, some ten days after starting at the Third Wave Café. The notes record “pain under excellent control”.[80] Of course, the position at the café was attractive because it offered a salary around $120,000 per annum, and in cross-examination he accepted he was motivated to earn well.
[74]PACB 21 at paragraph [54]
[75] T43, L9-14
[76] PACB 179; T51, L24
[77] T42, L6-20 – he described the work as in the office, at home and on the road one to two days per week.
[78]T55, L 0-13
[79]PACB 141
[80]DACB 123
26I accept completely that the plaintiff was motivated by a financial need to improve his earnings. Where that opportunity presented itself and his physical condition had improved so markedly since the trial of the IPT, it is entirely rational he would take up the position at the Third Wave Café.[81] I consider the overwhelming inference to be drawn from the objective facts is that he took up this position and worked in it because it was within his physical capacity.
[81] Fox v Percy (2003) 214 CLR 118 at 129, paragraph [31]
27The plaintiff gave evidence, as I have set out, that he ceased work at the Third Wave Café because of the physical requirements and the worsening of his condition. During cross-examination, however, he gave somewhat conflicting evidence, which was he left due to disagreements with the employer and a situation of being “micromanaged”.[82] Nowhere in his affidavit material, despite there being three affidavits, is there any mention of this as a reason for leaving the Third Wave Café. However, in the context of what I have set out in dealing with his capacity for work, this seems highly relevant. There were also other matters which lead me to conclude that his evidence in respect of why he left the Third Wave Café was inconsistent and unreliable.
[82]T58, L23
28First, his affidavit sworn on 8 September 2022, deposed that, at the time when he left the Third Wave Café, he considered he was incapacitated and that this was “likely to continue indefinitely”.[83] However, five days later he registered an ABN, indicating he was going to begin working as a subcontractor.[84] I consider this to be inconsistent behaviour. The plaintiff’s explanation in cross-examination was that this occurred because he realised he could not do nothing and needed an income.[85] While this can be accepted, the speed of that realisation raises a real doubt in my mind as to the accuracy of his affidavit. It strongly suggests the affidavit was exaggerated, or embellished, and not an accurate representation of his situation.
[83]PACB 21 at paragraph [55]
[84]DACB 294
[85]T71, L4-5
29Further, he began working as a delivery driver for Amazon for a few deliveries and then for Uber for nearly four months. However, the Amazon and Uber work did not find their way into the plaintiff’s second or third affidavits sworn in the month before trial. It was only when the plaintiff was sworn in for examination-in-chief did he seek to elaborate on this affidavit evidence. I consider these were glaring omissions from his affidavit material. They were matters which were substantial (Uber work of four months) and relevant to the issue of the capacity to work. It is relevant at this point to note that Dr Symon McCallum, the plaintiff’s medico-legal pain specialist, who opines on the plaintiff’s capacity for work, was not given this history either. The implications for that omission will be dealt with later.
30However, it is also relevant to note that, despite swearing his affidavit on 8 September 2022 and making a comment he considered he was “indefinitely” unable to work on review with his pain specialist, Dr Chawla on 14 September 2022 (some six days later), he was recorded as being pain free in respect of his arms.[86] Further, on 6 December 2022, he was reviewed by Dr Chawla and did not mention working at Uber or Amazon and, in particular, made no mention of the fact the Amazon work was too difficult because it increased the pain in his arms. This is a matter which he only gave evidence about in his examination-in-chief; it was not contained in any of his affidavits, nor recorded by any medico-legal practitioner who examined him.
[86]PACB 145
31His evidence as to his capacity more generally was also inconsistent with three recordings of Dr Chawla during June 2023, where the plaintiff was recorded as being 100 per cent pain free and doing really well.[87] Nursing notes around this time also record “[the plaintiff] very happy with how things are going”.[88] All this tends to paint a picture that the plaintiff was being examined by his pain specialists and providing histories to them of essentially being pain free with good functional capacity. It is important to note that the plaintiff ceased seeing his pain specialists after June 2023. The final recording of Dr Chawla on 26 June 2023 states “his pain relief is excellent. He will be reviewed in due course”.[89] No further review was conducted following this date. He stated, in cross-examination, he would return to the pain specialists whenever he was in pain, to be reprogrammed.[90] No further reprogramming has been had since June 2023 and this suggests his pain was at a minimal level that did not require him to return to his pain specialists. In contrast, his affidavit evidence and evidence to this Court was otherwise; that he remained in constant pain with a tingling sensation and had significant functional limitations. So, for example, in Dr McCallum’s report, after examination in July 2024, he was of the opinion the plaintiff had a limited capacity for work of twenty to twenty-five hours per week.[91]
[87]PACB 155 – 1 June 2023 – “doing really well”; PACB 156 – 8 June 2023 – “100% pain free”; PACB 157 – 26 June 2023 – “doing really well”.
[88]DACB 125
[89] PACB 157
[90] T74, L24-26
[91]PACB 58
32I do not accept Dr McCallum’s opinion for the following reasons. I have set out above why I do not accept the reasons that the plaintiff gave for leaving PTW and the Third Wave Café. Dr McCallum did not have that correct history. Further, Dr McCallum did not have the history of the plaintiff working at Uber and Amazon. Further still, while Dr McCallum had the notes and letters of doctors at Pain Specialists Australia, where Dr Chawla and Dr Christelis worked, he made no mention of them. They were long-term treating specialists in the same field as Dr McCallum. Their recordings were highly relevant to any assessment he was called on to make. He did not explain, in any way, how the plaintiff’s version of ongoing pain at work and the clinical recordings were consistent. Similarly, he made no mention of whether the ongoing adjustment of the IPT was a reflection of poor pain control. This would have been some corroboration of the plaintiff’s evidence with clinical practice, but he made no such comment.
33His failure to have due consideration to that material significantly compromises his ultimate opinion. I do not accept his opinion accurately establishes the plaintiff’s capacity for work.
34Overall, I do not consider the plaintiff’s explanations as to why he left the Third Wave Café to be consistent with the medical reporting or his own evidence. I do not accept he left the Third Wave Café for the reasons deposed to in his affidavit.
35Turning back to the central questions to be answered. I find the figure that most fairly reflects his earning capacity had the injury not occurred to be $120,000.
36As to the second question regarding the retained earning capacity in accordance with s325(2)(f)(i) of the Act.
37Given the very significant inconsistencies I have set out above in relation to the plaintiff’s capacity for work, I am not in a position to make any findings as to the plaintiff's current earnings, nor that which he is capable of earning as at the date of trial. The plaintiff’s case is that he can only work between twenty and twenty-five hours in a position as a chauffeur.
38Given my findings above, I cannot accept this evidence. In summary this is because:
(a) his affidavit material was deficient, embellished and not accurate;
(b) the deficiencies in the affidavit material were such that the plaintiff’s evidence on the issue of his occupational capacity was unreliable;
(c) the apparent logic of the plaintiff’s occupational history since 2022, in combination with the Pain Specialists Australia recordings, suggests an occupational capacity considerably more than what was deposed to;
(d) the opinion of Dr McCallum could not be accepted, given it is based on a deficient occupational history and fails to properly engage with the clinical notes of Pain Specialists Australia.
39In these circumstances, the plaintiff’s case must fail.
40I will otherwise make the Orders granting the plaintiff a certificate in respect of pain and suffering.
41As to costs, I consider the Notice to Produce filed by the defendant, and agitated by the defendant in correspondence, are clearly covered in the documents ultimately produced by the plaintiff on the first day of trial. For this reason, the plaintiff’s conduct delayed the start of the trial.
42I will make the Orders consistent with the following matters:
(a) the plaintiff be granted leave to proceed in respect of pain and suffering only.
(b) the plaintiff is to pay the defendant’s costs of trial on 2 September 2024.
(c) The defendant will otherwise pay the plaintiff’s costs of the proceeding.
43Parties are to file proposed orders to give effect to the above findings.
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