Ryan v Victorian WorkCover Authority
[2023] VCC 2300
•15 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-00881
| THERESE RYAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 September 2023 | |
DATE OF JUDGMENT: | 15 December 2023 | |
CASE MAY BE CITED AS: | Ryan v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2300 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – application for leave to issue proceedings to recover damages for pain and suffering and loss of earnings – defendant conceded pain and suffering consequences were “serious” – whether plaintiff satisfies loss of earnings test
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s313, 325 and 335(2)(d)
Cases Cited:Masters v McCubbery [1996] 1 VR 635; Guppy v Victorian WorkCover Authority [2010] VSCA 164
Judgment: Leave granted to the plaintiff to bring a proceeding at common law to recover damages for pain and suffering and damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Tim Connor Law |
| For the Defendant | Mr B McKenzie | IDP Lawyers |
HER HONOUR:
1This is an application for leave to bring common law proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2The plaintiff, Therese Ryan, seeks leave to commence a common law proceeding in respect of physical injuries allegedly suffered by her in the course of her employment with Jasper Coffee Caffeine Dealers Pty Ltd (“the employer”) for both pain and suffering and loss of earnings (pecuniary loss) damages.
3This application is brought pursuant to paragraph (a) of the definition of “serious injury”, as that term is defined in s325(1) of the Act.
4The impairment of body functions relied upon are the left lower limb (including left hip) and the right lower limb.
5At the hearing on 28 September 2023, Mr Valiotis of Counsel appeared on behalf of the plaintiff, and Mr McKenzie Of Counsel appeared on behalf of the defendant.
6At the commencement of the hearing, Mr McKenzie informed the Court that the defendant accepted the plaintiff satisfied the serious injury test for pain and suffering.
7I have considered all the tendered evidence, and the oral and written submissions of Counsel, but I shall only refer to the materials to the extent necessary in these reasons.
8For the reasons that follow, I am satisfied that the plaintiff has met the serious injury test for loss of earnings.
Background
9The plaintiff is forty-eight years old. She has two children ꟷ one aged twenty-one and the second aged fifteen.
10She completed Year 12 and commenced, but did not complete, an arts degree, and, later, a public relations degree. She subsequently completed a Diploma in Retail Management.
11In the past, she worked as a counterhand at Hungry Jacks, a cashier at Crown Casino, operated her own confectionery and gift store, and worked in retail.
12In 2006, she commenced employment in retail with the employer.
13She worked on a full-time basis in various stores run by the employer until May 2019.
14Over time, she developed pain in both knees and in the left hip. She completed a Claim for Compensation in November 2017, which was accepted.
15Apart from a three-day period in August 2019, when helping a friend at a trade fair, the plaintiff has not been engaged in any employment since ceasing work with the employer in May 2019.
What is in dispute?
16Prior to the matter proceeding to hearing, there was a referral from a judge of this Court to the Medical Panel.
17The Medical Panel was asked to answer a series of medical questions regarding the plaintiff, including the nature of the plaintiff’s injuries and her work capacity.
18The Medical Panel provided a Certificate of Opinion dated 1 May 2023.[1]
[1] Exhibit 5, Joint Court Book (“JCB”) 38-44
19Section 313(4) of the Act provides:
“(4)For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel—
(a)is to be adopted and applied by any court, body or person; and
(b)must be accepted as final and conclusive by any court, body or person—
irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.”
20In summary, the Medical Panel found that the plaintiff has a permanent capacity to work in suitable employment as a social media manager,[2] sales and marketing manager, retail buyer’s assistant, and showroom salesperson for twenty hours a week (four hours a day, five days per week).
[2] Also referred to as a “Social Media Marketer”
21The Court is bound by the Medical Panel determinations.[3]
[3]Masters v McCubbery [1996] 1 VR 635
The hearing
22The hearing did not proceed in the “usual way”, as the plaintiff was not required for cross-examination.
23The parties prepared a Joint Court Book and jointly tendered the following documents:
· Exhibit 1, letter of termination of weekly benefits, dated 22 June 2023.
· Exhibit 2, affidavit sworn by the plaintiff, dated 22 October 2021.
· Exhibit 3, affidavit sworn by the plaintiff, dated 31 August 2023.
· Exhibit 4, Workers Injury Claim Form, dated 2 November 2017.
· Exhibit 5, Medical Panel Certificate of Opinion, dated 1 May 2023.
· Exhibit 6, Medical Panel Reasons for Opinion, dated 1 May 2023.
· Exhibit 7, income tax return summary (undated).
· Exhibit 8, Nabenet Vocational Assessment Report, dated 29 October 2020.
· Exhibit 9, Recovre Vocational Assessment Reports, dated 14 January 2022, 7 August 2023 and 10 August 2023.
· Exhibit 10, Flexi Personnel earnings report, dated 13 June 2023.
24Both parties provided written submissions.
Has Ms Ryan satisfied the “serious injury test” for pecuniary loss?
25The only question remaining for the Court to determine is whether the plaintiff has suffered a reduction in her earning capacity which satisfies the requirements of s325(2)(e) of the Act.
26Section 325(2)(e) has two requirements:
· s325(2)(e)(i) requires Ms Ryan to show that, at the date of the hearing, she has a current loss of earning capacity of 40 per cent or more, as set out in s325(2)(f) (the current “loss of earning capacity” threshold).
· s325(2)(e)(ii) requires Ms Ryan to show that she will continue permanently to have a loss of earning capacity of 40 per cent or more (the “permanent loss of earning capacity” threshold).
27The parties agreed that the figure which best reflects the plaintiff’s “without injury” earnings is the figure earned in the 2014/2015 financial year of $61,767 gross/$1,187.82 gross per week.
28It is agreed that 60 per cent of that figure is $37,060 gross per annum /$713 gross per week.
29In accordance with s325(2)(f)(i) of the Act, to assess the “without injury” earning capacity, the Court has to consider the greater of:
(a) the amount Ms Ryan is earning (whether in suitable employment or not); and
(b) the amount Ms Ryan is capable of earning in suitable employment.
30As Ms Ryan is not working, I must determine the amount Ms Ryan is capable of earning if she worked twenty hours per week in the four jobs found to be suitable employment by the Medical Panel.
31The defendant submits that the plaintiff is capable of earning in excess of $37,060 gross per annum/$713 gross per week in three of the four positions identified by the Medical Panel – that is, social media marketer, sales and marketing manager and showroom salesperson.
32The plaintiff submits that the plaintiff is not capable of earning in excess of $37,060 gross per annum/$713 gross per week in the any of the four positions identified by the Medical Panel.
33For the reasons that follow, I am satisfied that Ms Ryan meets the serious injury test for pecuniary loss.
34I find that she satisfied the test in relation to each of the four jobs identified by the Medical Panel.
Social media marketer
35The defendant submits that the plaintiff is capable of earning either $901.57 gross or $748.94 gross, working twenty hours per week as a social media marketer.[4]
[4]Defendant’s Statement of Calculations at page 2
36The defendant relies upon figures set out in two reports:
(a) a report of Nabenet, dated 29 October 2020,[5] and
(b) a report of Recovre, dated 7 August 2023.[6]
[5]Exhibit 8
[6]Exhibit 9
37The plaintiff says that the appropriate rate for twenty hours work as a social media marketer is $523 gross per week, based on an hourly rate of $26.15 per hour.
38The plaintiff relied upon figures set out in a report of Flexi Personnel, dated 13 June 2023.[7]
[7]Exhibit 10, JCB 118-121
39The plaintiff’s figure is based on the “Clerks – Private Sector Award 2020”.
40The defendant’s figures are based on a combination of what is asserted to be the average weekly full-time income of $1,737 for a twenty-five to twenty-nine year old (bearing in mind that the plaintiff is currently aged forty-eight) and an alternative full-time figure of $1,423 per week.[8]
[8]Defendant’s Statement of Calculations at page 2
41The defendant then divided the weekly wages by 38, to come up with an hourly rate of $45.07 and $37.44 respectively.[9]
[9](Ibid)
42The plaintiff’s figures are preferred, as:
· The defendant’s figures lack clarity.
· The defendant did not provide an explanation for the discrepancy between the Nabenet figures and the Recovre figures.
· The methodology adopted by the defendant of simply dividing a weekly rate by 38 to arrive at an hourly figure, may not be an accurate reflection of a part-time hourly rate.
· The defendant’s figures ignore the important qualification in the Nabenet report, that its estimates did not take into account the impact of COVID-19 and may not reflect the current job market and should be “used and interpreted with extreme caution”.[10]
· The plaintiff’s figures are clear, and based on an hourly rate which was exclusive of any applicable penalty rates or allowances.
[10]Exhibit 8, JCB 73
Sales and marketing manager
43The defendant submits that the plaintiff is capable of earning either $1,170.52 gross, or $733.68 gross, working twenty hours per week as a sales and marketing manager.[11]
[11]Defendant’s Statement of Calculations at page 2
44The defendant relies upon figures set out in two reports:
(a) a report of Nabenet, dated 29 October 2020[12] and
(b) a report of Recovre, dated 7 August 2023.[13]
[12]Exhibit 8
[13]Exhibit 9
45The plaintiff relies upon the figure of $571.60 gross per week working 20 hours applying the hourly rate of $28.58 gross per hour based on the Flexi Personnel report, dated 13 June 2023.
46The plaintiff’s figure is based on the “Clerks – Private Sector Award 2020”.[14]
[14]Exhibit 10
47The defendant’s figures appear to be based on a combination of what is asserted to be the average weekly full-time income of $1,394 gross for a twenty-five to twenty-nine year old (bearing in mind that the plaintiff is currently aged forty-eight) and a full-time figure of $2,224 gross per week.[15]
[15]Defendant’s Statement of Calculations at page 2
48The defendant adopted the same methodology as it did for the social media marketer position, by dividing the weekly wage by 38 to come up with an hourly rate of $36.68 and $58.52 respectively.[16]
[16]Ibid
49The plaintiff’s figures are preferred, as:
· The defendant’s figures lack clarity.
· The defendant did not provide an explanation for the discrepancy between the Nabenet figures and the Recovre figures.
· The methodology adopted by the defendant, of simply dividing a weekly rate by 38 to arrive at an hourly figure, may not be an accurate reflection of a part-time hourly rate.
· The defendant’s figures ignore the important qualification in the Nabenet report, that its estimates did not take into account the impact of COVID-19 and may not reflect the current job market, and should be “used and interpreted with extreme caution”.[17]
· The plaintiff’s figures are clear and based on an hourly rate which is exclusive of any applicable penalty rates or allowances.
[17]Exhibit 8, JCB 73
Retail buyers assistant
50The plaintiff submits that the plaintiff is capable of earning $495.20 gross per week working 20 hours a week as a retail buyer’s assistant in accordance with the figures set out in the Flexi Personnel report which sets out an hourly rate of $24.76 gross per week based on the “General Retail Industry Award 2020”.[18]
[18] Exhibit 10
51The defendant accepted that this job met the threshold for economic loss and put no higher figures.
Showroom salesperson
52The defendant submits that the plaintiff is capable of earning between $526.31 gross and $910.80 gross working twenty hours per week as a showroom salesperson.[19]
[19]Defendant’s Statement of Calculations at page 3
53The defendant’s figures were based on figures contained in the first Recovre report, dated 14 January 2020,[20] which provided a base salary of $52,000, plus commission, with an indication that “[f]irst year workers are reported to typically earn $85000 - $90000 including commissions”.[21]
[20]Exhibit 9, JCB 107
[21]Exhibit 9, JCB 107
54The defendant then divided the range of figures from $52,000 to $90,000 by 38 to come up with an hourly rate ranging from $26.31 to $45.54.[22]
[22]Defendant’s Statement of Calculations at page 3
55There is nothing in the first Recovre report which explains how a base wage of between $52,000 to $90,000 was assessed or paid.
56The subsequent reports of Recovre, dated 7 August 2023 and 10 August 2023, do not deal with the position of showroom salesperson.
57The plaintiff has submitted that the figures relied upon by the defendant are uncertain and do not indicate what an hourly rate would be, or what an annualised rate would be.
58The plaintiff submits that the appropriate rate for a showroom salesperson is $467.60.
59The plaintiff’s figure is based on an hourly rate of $23.38 under the “General Retail Industry Award 2020” for a Retail Employee Level I classification.
60I prefer the plaintiff’s figure for the following reasons:
· The defendant’s range of figures are uncertain and so broad as to be meaningless.
· It is not clear how the higher figures of $85,000 to $90,000 were achieved – there was reference to workers potentially earning these sums, but it was not clear whether the reference to first-year workers meant workers in their initial year of work, or workers who had completed one year of such work.
· The methodology adopted by the defendant of simply dividing a weekly rate by 38 to arrive at an hourly figure, may not be an accurate reflection of a part-time hourly rate.
· The plaintiff’s figure is clear and based on an hourly rate payable under an award.
· The plaintiff’s figure had a degree of certainty compared to the wide range of figures submitted by the defendant.
Findings
61Accepting the Medical Panel Opinion, I find that the plaintiff does not have the capacity to return to her pre-accident employment and I further find that the plaintiff has the capacity to work twenty hours per week as a social media manager, a sales and marketing manager, a retail buyer’s assistant, and a showroom salesperson.
62I accept the plaintiff’s evidence and find that the plaintiff has the capacity to earn the following gross amounts:
· $523 per week as a social media manager/marketer.
· $571.60 per week as a sales and marketing manager.
· $495.20 per week as a retail buyer’s assistant.
· $467.60 as a showroom salesperson.
63I reject the defendant’s evidence for the reasons set out above.
64Having considered all the evidence, I find that the plaintiff’s capacity, at its highest, is to earn $571.60 gross per week as a sales and marketing manager.
65I therefore find that the plaintiff has satisfied the provisions of s325(2)(e)(i) and(ii) of the Act, as she has sustained a loss of capacity of 40 per cent or more, and this loss is permanent.
66I refer to the observations of the Court of Appeal in Guppy v Victorian WorkCover Authority.[23] Considering the plaintiff has lost over 40 per cent of her earning capacity, I further find the loss of earning capacity consequences are fairly described as being “more than significant or marked” and are “at least very considerable”. Therefore, the plaintiff has met the narrative test set out in s325(2)(c) of the Act.
[23] [2010] VSCA 164 at paragraph [51]
67Accordingly, the application is granted.
68I will hear the parties on the question of costs.
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