Saricayir v Victorian WorkCover Authority
[2021] VCC 1192
•8 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-05722
| ERCAN SARICAYIR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14 and 15 July 2021 | |
DATE OF JUDGMENT: | 8 September 2021 | |
CASE MAY BE CITED AS: | Saricayir v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1192 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – prior injury to the neck with left upper limb symptoms – surgery to the neck and reduction of left upper limb symptoms subsequently – whether the plaintiff recovered significantly from the prior injury and surgery – plaintiff’s return to work as a cleaner in arduous work – whether the plaintiff suffered an aggravation of the prior neck injury – whether the aggravation of the prior neck injury of itself is “serious” – whether the plaintiff suffered an aggravation of a non-compensable right shoulder condition – whether the aggravation of the prior right shoulder condition itself is “serious” – whether the pain and suffering consequences and incapacity consequences of the neck and the right shoulder were aggregated – whether the pain and suffering consequences of the aggravation of the neck and the right shoulder are serious in terms of pain and suffering and loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s313(4)(a) and (b)
Cases Cited:Woolworths Limited v Warfe [2013] VSCA 22; Philippiadis v Transport Accident Commission [2016] VSCA 1; Petkovski v Galletti [1994] 1 VR 436; Pullicino v Burden’s Plumbing (Vic) Pty Ltd [2019] VSCA 88; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Transport Accident Commission v Zepic [2013] VSCA 232; Victorian WorkCover Authority v Brassington [2021] VSCA 236
Judgment: The plaintiff has leave to bring a proceeding both with respect to pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D Clements QC with Dr J C Plunkett | Slater & Gordon |
| For the Defendant | Ms M S Cameron | Wisewould Mahoney |
HIS HONOUR:
Introduction
1The plaintiff is a 43-year-old-man of Turkish origin who suffered injury to his neck and right shoulder on 22 December 2016 when, during the course of his employment, he was moving a heavy metal cage weighing about 100 kilograms up a ramp.
2The plaintiff submitted that either his neck or his right shoulder injuries have resulted in pain and suffering and loss of earning capacity consequences which meet the statutory test of seriousness. The defendant submitted that on an assessment of the whole of the evidence, that the plaintiff could not achieve that result.
3Mr A D Clements QC appeared with Dr J C Plunkett of counsel for the plaintiff. Ms M S Cameron appeared for the defendant.
4The plaintiff suffered injuries to both his neck and right shoulder resulting from a transport accident of 28 April 2011 (“the transport accident injuries”). Those injuries resulted in pain and suffering consequences and pecuniary disadvantage for which he obtained a serious injury certificate pursuant to the provisions of the Transport Accident Act 1986. He brought a common law claim which settled for a significant sum of damages.
5The plaintiff submitted that he recovered from the consequences of the transport accident injuries sufficient to return to his former domestic, social and recreational pursuits and, most importantly, to manual work. He submitted that the further injuries he suffered on 22 December 2016 to his neck and right shoulder resulted in pain and suffering and loss of earning capacity consequences which meet the statutory test of seriousness.
6The defendant submitted that its analysis of the evidence demonstrates that the impairment of function the plaintiff suffered to his neck and right shoulder resulting from what occurred on 22 December 2016 are the same, or very similar to, the impairment of function that he suffered resulting from the transport accident.
The transport accident
7The plaintiff swore an affidavit on 25 March 2013 in support of an application made to the Transport Accident Commission (“the TAC affidavit”) that the impairment consequences of the injuries to his neck and shoulders resulting from the transport accident met the statutory test of seriousness.[1]
[1] Defendant’s Court Book (“DCB”) 76-79
8On 28 April 2011, the plaintiff brought his car to a stationary position at an intersection. A car coming up from behind collided into the rear of the plaintiff’s car. The force of the impact caused his car to then collide into the car in front of him. The plaintiff’s body was thrust “violently forward and back”.
9The plaintiff was initially treated at the Royal Melbourne Hospital. He was conveyed there by ambulance. He then saw Dr Hakan Baglar, general practitioner. Dr Baglar referred the plaintiff to Associate Professor Richard Bittar, neurosurgeon. The plaintiff first saw him on 18 June 2011. He provided a courtesy letter to Dr Baglar dated 18 June 2011[2] in which he referred to a cervical spine MRI scan which was performed on 9 May 2011. He described it as demonstrating a large left C4‑5 disc prolapse with left C5 nerve root compression.[3] He diagnosed a left C5 radiculopathy secondary to a C4-5 disc prolapse. He obtained a history from the plaintiff which led him to conclude that the plaintiff was also suffering from left brachialgia which was a secondary consequence of the discal injury.
[2] DCB 81-82
[3] The MRI scan is at DCB 80
10On 15 November 2012, Associate Professor Bittar performed C4-5 anterior cervical decompression and fusion surgery on the plaintiff’s neck. In a report dated 1 November 2013,[4] Associate Professor Bittar described the surgery and reviews of the plaintiff on 30 January and 17 May 2013 subsequent to the surgery. It is clear from his post-surgical reviews of the plaintiff, that the plaintiff’s neck pain had improved and his left shoulder pain had resolved. He considered that the plaintiff’s long-term prognosis relevant to his neck was reasonably good. He added that he thought it was likely that the plaintiff would experience sustained benefit from his spinal fusion in terms of the neck and left arm pain. His prognosis was that the fusion would be solid for about twelve months post surgery.
[4] DCB 100-102
11At around the time when Associate Professor Bittar reviewed the plaintiff post surgery, he considered that he had a capacity to work full time on light duties. He considered that the plaintiff would need to avoid repetitive neck or arm movements, forceful pushing or pulling, maintaining his neck in a fixed posture for prolonged periods of time, as well as heavy lifting. He added that he thought the main problem experienced by the plaintiff was due to right shoulder pain, which he considered was unrelated to his neck injury.
12Associate Professor Bittar also obtained a history from the plaintiff that he was suffering from right shoulder pain. On examination of his right shoulder, he found that the range of movement at the right glenohumeral joint was restricted. He referred the plaintiff to have an MRI scan.[5] He considered that the MRI scan demonstrated significant pathology in the right shoulder joint, however, he noted that assessment and treatment of the right shoulder was beyond his area of expertise. He suggested that the plaintiff be referred back to Dr Baglar and to an orthopaedic surgeon.
[5] DCB 105
13Associate Professor Bittar provided two courtesy letters to Dr Baglar, dated 4 August 2014[6] and 28 August 2014.[7] At a review in August 2014, the plaintiff complained of persisting right-sided neck and shoulder pain. He was referred to have another MRI scan which was performed on 4 July 2014.[8] Associate Professor Bittar thought that there was the appearance of a small disc bulge and a tiny annular tear at C5-6, but otherwise no other abnormality.
[6] DCB 116
[7] DCB 117
[8] DCB 106
14Associate Professor Bittar referred the plaintiff to Dr Symon McCallum, interventional pain physician and specialist anaesthetist. In a courtesy letter dated 19 August 2014 to Associate Professor Bittar,[9] Dr McCallum considered that the surgery had significantly decreased the plaintiff’s neck and left shoulder pain. On examination, he found a good range of motion in the plaintiff’s neck. He considered that the plaintiff’s complaints of pain in his neck might have been muscular in origin. Of importance is his observation that the plaintiff seemed “extremely motivated in increasing his level of function”.
[9] DCB 121-122
15Dr McCallum obtained a history from the plaintiff of the subsequent development of right shoulder and arm pain around his right acromioclavicular joint. At that stage, he had seen a “shoulder specialist”, who provided him with a steroid injection. It would appear at that stage, that the plaintiff’s main problem was his right shoulder. Dr McCallum referred the plaintiff to have an MRI scan and x-ray of his right shoulder.[10] The radiologist reported that, in his opinion, the MRI scan demonstrated supraspinatus calcific tendinosis and associated thickening of the overlying subacromial bursa. He noted a previous tear of the anterior superior labrum as well. The x-ray demonstrated extensive circumscribed calcification within the supraspinatus muscle which may have been of long standing, but no other abnormality in the glenohumeral or acromioclavicular joints.
[10] DCB 107
16It was after the plaintiff saw Dr McCallum that he returned to Associate Professor Bittar, who agreed with the conclusions reached by Dr McCallum. By that stage, the plaintiff had undergone flexion extension cervical spine x-rays and a CT scan which Associate Professor Bittar considered demonstrated that the fusion was progressing with no evidence of complications. He then discharged him from his care.
17In addition to the courtesy letters and reports I have referred to already, the defendant tendered reports of other medical assessors who examined the plaintiff on a medico-legal basis:
· Mr David Brownbill, consultant neurosurgeon, who examined the plaintiff on 14 December 2012 and provided a report dated 5 December 2012.[11]
· Mr Murray Stapleton, plastic and hand surgeon, who examined the plaintiff on 24 October 2013 and provided a report dated 24 October 2013.[12]
· Mr Stephen Doig, orthopaedic surgeon, who examined the plaintiff on 13 November 2013, and provided a report dated 13 November 2013.[13]
[11] DCB 83-88
[12] DCB 89-93
[13] DCB 94-99
18Neither party referred to these examinations nor relied upon the content of the opinions of the medical assessors to any material degree. I do not think that they contain any observations or opinions inconsistent with the summary I have made so far of the attention given to the plaintiff by Dr Baglar, Associate Professor Bittar and Dr McCallum.
19The plaintiff described a number of consequences in his Transport Accident Commission affidavit. The following is a summary of those consequences:
· neck pain causing headaches
· the headaches interfered with his concentration
· continuing right shoulder and upper arm pain
· restriction of movement of the right shoulder and arm
· difficulty sleeping on his right side
· difficulty dressing because of the problems with his right arm
· concentration difficulties resulting in interference with studying English, anticipated entry into an accounting degree, and interference with the capacity to return to work
· interference with the capacity to engage in recreations – fishing, playing soccer with friends and swimming
· interference with the capacity to engage in writing due to interference with concentration
· interference with undertaking household chores such as vacuuming, mopping and cleaning the bathroom. Interference with the capacity to cook, do washing and go shopping.
· mood swings and angry outbursts which resulted, among other things, in the breakup of his relationship with his girlfriend
· overall, a reduction in the good health which he previously experienced, and his ability to engage in a variety of activities in an unrestricted way.
The Plaintiff’s common law claim
20The plaintiff brought a common law claim with respect to the transport accident. It settled on 20 December 2013 for $350,000. The plaintiff received a net sum of $324,000.
21I was not provided with the evidence the plaintiff and the Transport Accident Commission assembled on which they made an assessment of the plaintiff’s damages. What I do know is that under cross-examination, the plaintiff said that the damages were for his neck injury and its consequences. He said that no part of the damages included his right shoulder and arm and their consequences.[14]
[14] Transcript 37-38
22In any event, the fact that the plaintiff was compensated in damages is of limited relevance to the task which I have been set. I did not hear the defendant to suggest otherwise; however, the defendant cross-examined the plaintiff that around the time of the settlement and into 2014, the plaintiff continued to complain of significant neck and right shoulder problems. It relied on the medical treatment which the plaintiff obtained during that period to submit that the pain and suffering and loss of earning capacity consequences contended for now by the plaintiff bear a real resemblance to the very consequences which he deposed to in his Transport Accident Commission affidavit.
The Plaintiff’s recovery
23In his first affidavit in this application sworn 13 August 2020,[15] the plaintiff referred to the transport accident, a brief summary of the treatment provided by Dr Baglar, Associate Professor Bittar and Dr McCallum. He then referred to an important turning point:
“8.It took me some time to recover from this injury and I remained out of the workforce until about 2014. However, I did achieve a reasonable recovery in respect of my neck condition.”
[15] Plaintiff’s Court Book (“PCB”) 27-34
24At the time of the transport accident, the plaintiff was employed as a baker with Skewers Bakery on Lygon Street, Brunswick. He had worked there since 1 April 2011, working eight hours per day, four days per week.[16] He was incapacitated for that work as a result of the transport accident injuries. The significance of the opinions of Associate Professor Bittar and Dr McCallum, which they arrived at in the latter part of 2014, demonstrate clearly that the fusion was solid. The plaintiff’s recovery was progressing, and Associate Professor Bittar was convinced that the plaintiff would return to a capacity for full-time work, subject to certain physical limitations being placed upon him. What the plaintiff deposed to appears to me to be consistent with those medical opinions. Dr McCallum noted that the plaintiff was extremely motivated to increase his level of function, and what I will next turn to demonstrates that he succeeded with that ambition.
[16] PCB 78
25The plaintiff first returned to work in 2015. He worked at a friend’s café. He worked six days per week, three hours per day. He worked in that employment for about one-and-a-half to two weeks. He worked as a barista, making coffees. Under cross-examination, he said that the reason why he stopped performing that work was because his friend only called him to help out when needed. I understood that to mean that it was casual work which he performed on an ad hoc basis.[17]
[17] Transcript 44-45
26In 2015, the plaintiff obtained a Certificate III in Cleaning Services. He obtained employment as a cleaner with Spotless at Myer Highpoint Shopping Centre in about August 2015, working part time. He worked as a cleaner until 24 April 2016. Under cross-examination, he denied that he had any neck or right shoulder pain while working as a cleaner.[18]
[18] Transcript 45
27The plaintiff commenced employment with Ikon Administration Pty Ltd (“Ikon”) in September 2016. Again, and under cross-examination, he denied that he was having any neck or shoulder pain and was fit and well before he started work with Ikon.[19] He worked at Melbourne Airport, Tullamarine.
[19] Transcript 45-46
28Ikon required the plaintiff to undergo a pre-employment medical examination. On 19 April 2016, the plaintiff was examined by Dr Sam Youssef, general practitioner. Dr Youssef signed a doctor’s declaration that after examining the plaintiff, he was of the opinion that the plaintiff was fit to work as a cleaner. The document signed by Dr Youssef is described as a “FITNESS DECLARATION” bearing Ikon’s name.[20]
[20] PCB 68
29The declaration contains a general description of the physical requirements of the cleaning duties which the plaintiff was required to perform. The general description refers to eleven specific work tasks that a successful applicant would be required to perform. The plaintiff and Dr Youssef placed a tick against each specific work task indicating that the plaintiff could meet the physical requirements of each work task. Additionally, the declaration required Dr Youssef to specify whether the plaintiff had any “degenerative issues or any other underlying or ongoing medical issues that may not allow the applicant to perform any of the above mentioned duties”, Dr Youssef wrote “Nil known”.
30Also on 19 April 2016, Ikon required the plaintiff to complete a “HEALTH ASSESSMENT & MEDICAL DECLARATION FORM”.[21] Under cross-examination, the defendant pointed out to the plaintiff that there were a series of questions which he answered where the answers are plainly wrong:[22]
· he denied that he had any previous worker’s compensation claims
· he denied having any pre-existing injuries or conditions that could affect his ability to undertake the work offered to him to a satisfactory level
· he denied having current or past back pain/injury/sciatica
· he denied currently using any regular medications
· he denied that in the last five years he had any illnesses, operations or health investigations.
[21] DCB 165-168
[22] Transcript 64-66
31Under cross-examination, the plaintiff was taken through each of these answers. He was unsure whether he completed the form in the office of Ikon or with Dr Youssef, or had the assistance of someone to complete the form. As he read the form while being cross-examined, he said that he was having difficulty reading it and understanding it.
32Under cross-examination, he was asked why he did not inform Dr Youssef that he had neck surgery. He said that all Dr Youssef did was to test his body physically. He said that the topic of surgery was not raised, so he said nothing about it.[23]
[23] Transcript 66
33The defendant submitted that the plaintiff’s evidence that he had recovered from his neck and shoulder injuries was untrue. In summary, it submitted that the following additional evidence seriously contradicts the plaintiff’s evidence:
· the plaintiff underwent an MRI scan on 4 July 2014 relevant to ongoing neck pain.[24]
[24] DCB 106
· Associate Professor Bittar examined the plaintiff on 4 August 2014 and recorded a history that the plaintiff continued to be troubled by right-sided neck and shoulder pain.[25]
[25] DCB 116
· the plaintiff underwent an MRI scan and x-ray of the right shoulder on 6 August 2014. The clinical note of the radiologist was “right shoulder pain ? rotator cuff tear ? AC joint inflammation”.[26]
[26] DCB 107
· Dr Baglar examined the plaintiff on 11 August 2014. His clinical note of that day demonstrates that he certified the plaintiff as being unfit for work and prescribed him Panadeine Forte.[27]
[27] DCB 113
· Dr McCallum examined the plaintiff on 19 August 2014. He noted that the plaintiff described pain in his neck and intermittent numbness in pins and needles. The pain was made worse when driving. The pain occurred daily and would wake him. The pain was made worse when cleaning. He subsequently developed right shoulder and arm pain around his right acromioclavicular joint. He described that pain as being 6 out of 10 when severe.[28]
[28] DCB 121
· Associate Professor Bittar examined the plaintiff on 28 August 2014. At that stage, he considered that the plaintiff was totally incapacitated for work, and that his current treatment should comprise analgesic medication.[29]
· On 19 September 2014, the plaintiff was assessed to undergo a pain management program, with the planned start date of 7 October 2014 and a planned completion date of 18 November 2014. It appears to have been directed to his neck and right shoulder.[30]
· Dr Baglar examined the plaintiff on 6 November 2014. His clinical note of that day demonstrates that he certified the plaintiff as being unfit for work.[31]
· Dr Baglar examined the plaintiff on 6 February 2015. His clinical note of that day demonstrates that he certified the plaintiff as being unfit for work.[32]
· Dr Baglar examined the plaintiff on 8 May 2015 and 10 May 2016. His clinical notes of those days demonstrate that he certified the plaintiff as being unfit for work, and he prescribed him Panadeine Forte.[33]
· Dr Baglar examined the plaintiff on 12 January 2016. His clinical note of that day demonstrates that the plaintiff complained of neck pain. It would appear that it also refers to the plaintiff being unable to lift his right arm, and a referral to a neurosurgeon.[34]
· Dr Baglar wrote to the Transport Accident Commission on 12 January 2016 seeking approval for the plaintiff to be referred to Mr Gus Gonzalvo, neurosurgeon.[35]
· Dr Baglar may have examined the plaintiff on 16 February 2016. His clinical note is too cryptic to make much more than an appointment had been made for the plaintiff to see Mr Gonzalvo.[36]
· Mr Gonzalo wrote a courtesy letter to Dr Baglar dated 14 April 2016, noting that he examined the plaintiff on 12 April 2016. He noted that plaintiff continued to experience neck pain and experienced the recent onset of right shoulder pain with marked restriction of movement in the right shoulder.[37]
· Mr Victor Tran, AustralianSuper claims assessor, wrote a letter to Dr Baglar dated 19 April 2016 referring to the plaintiff’s lodgement of a total and permanent disablement claim against his membership of a superannuation fund. Mr Tran requested Dr Baglar to provide information for the purpose of assessing the plaintiff’s claim.[38]
[29] DCB 117
[30] DCB 156-162
[31] DCB 113
[32] DCB 113
[33] DCB 112-113
[34] DCB 112
[35] DCB 132
[36] DCB 112
[37] DCB 103
[38] DCB 163-164
34Under cross-examination, the plaintiff was referred to a letter by Dr Baglar to Unified Healthcare Group dated 30 May 2016 in which Dr Baglar informed Unified Healthcare Group that he did not know that the plaintiff was working in a cleaning job.[39] It would appear that Dr Baglar learnt that from the courtesy letter written by Mr Gonzalvo on 14 April 2016.[40] It is clear that the plaintiff informed Mr Gonzalvo that he was working as a cleaner. The plaintiff denied that he kept the fact that he was working as a cleaner from Dr Baglar for the purpose of improving his prospects of succeeding with his superannuation claim.[41]
[39] DCB 133-135
[40] DCB 103
[41] Transcript 67-68
35Under cross-examination, the plaintiff was referred to a number of medical certificates provided by Dr Baglar dated 12 January 2015,[42] 6 February 2015[43] and 12 January 2016.[44] The certificates refer to a C4-5 moderate large disc protrusion in the neck, shoulder and left upper limb pain. They certify the plaintiff was fit for suitable employment. The plaintiff made a declaration on each certificate that he had not engaged in any employment which is wrong because he had worked in the café and then in more substantive work as a cleaner from August 2015.
[42] DCB 140-141
[43] DCB 136-137
[44] DCB 138-139
36The plaintiff denied ticking the box which declared that he had not worked. He said that it was the receptionist at Dr Baglar’s clinic who did that. He denied that he intended to declare that he had not worked. He said he was provided with the completed medical certificate which he then signed.[45]
[45] Transcript 57-58, and re-examination at Transcript 78
37Under further cross-examination, the plaintiff said that he could not remember being prescribed Panadeine Forte by Dr Baglar in May 2016. It was at this point that the plaintiff qualified his earlier answer that he did not have any neck or shoulder pain and was fit and well. He said that he was about 80 to 90 per cent, was well and that his life had got back to normal.[46]
[46] Transcript 70
38The clear purpose in the defendant undertaking an analysis of the foregoing medical evidence was to demonstrate that the plaintiff was suffering from a persistence of symptoms affecting his neck and shoulders subsequent to the surgery and up to the time when he returned to substantive employment in August 2015. It was on the basis of this analysis that the defendant chose to challenge the plaintiff in a very direct way by putting to him that his evidence that he did not have any neck or shoulder pain and was fit and well, was simply untrue. The plaintiff responded that his evidence was true.[47]
[47] Transcript 70
39If the defendant’s analysis of the medical evidence is looked at in a vacuum, then the evidence of Dr Baglar and Mr Gonzalvo points to the plaintiff having persisting problems with his neck and shoulders at least around the time when Mr Gonzalvo saw the plaintiff in April 2016; however, the plaintiff’s response is that, despite what has been thrown up through the defendant’s analysis, it is impossible to reconcile the defendant’s submissions with the fact that the plaintiff worked for at least sixteen months from August 2015 to 22 December 2016.
40Furthermore, the plaintiff emphasised that the work he did over that sixteen-month period was heavy manual work. Not only did it involve pushing a 100-kilogram metal cage up a ramp on 22 December 2016, but under re-examination, the plaintiff elaborated on the work he was required to perform with Ikon.
41In the first six months that he worked with Ikon, his work involved cleaning toilets, cleaning the departure area and dealing with bins containing rubbish weighing between 15 to 20 kilograms. He described dealing with bins of that weight as occurring often. Additionally, he performed other tasks such as mopping and vacuuming. In the second six months, he said the heavy nature of the work changed. The weight of the bins increased to between 20 to 45 kilograms. The metal cages increased in weight to between 150 to 200 kilograms, and dealing with them was something he did about three times a day.
42It was the whole of this evidence of the work which the plaintiff performed with Ikon over sixteen months that the plaintiff submitted was simply not possible to reconcile with the defendant’s submission that the medical material it relied upon demonstrated that the plaintiff was suffering from persistent neck and right shoulder pain which incapacitated him in a significant way.
43There are two observations that I am driven to make at this point. Firstly, the Court of Appeal has sounded a caution to the trial judge when dealing with clinical notes and a patchwork quilt of medical material which may result in the trial judge giving the clinical notes and the medical material more weight than they deserve.[48] Secondly, the fact that the plaintiff has given evidence on oath and has been cross-examined at length cannot be underestimated and reduced in its weight and the force that it carries.
[48]Woolworths Limited v Warfe [2013] VSCA 22 at paragraph [112] and Philippiadis v Transport Accident Commission [2016] VSCA 1 at paragraphs [105]-[106]
44I have resolved the apparent conflicts in the evidence relevant to whether the plaintiff recovered from the transport accident injuries and their consequences as completely as he described in his evidence, or that he did not. I prefer the evidence of the plaintiff for a number of reasons.
45Firstly, I prefer the evidence of Associate Professor Bittar and Dr McCallum, who support the conclusion that the plaintiff made a very good recovery from the transport accident injuries, and very particularly, Associate Professor Bittar’s opinion that the plaintiff was fit to return to full-time work with restrictions, and the observation made by Dr McCallum that the plaintiff was very well motivated to return to a productive level of functioning.
46Secondly, I prefer most of the plaintiff’s evidence of his level of recovery and return to functioning, but what I do not accept is that it was as good a level of recovery as he initially described. What is undoubted is that he did return to Dr Baglar complaining of neck and right shoulder problems, and he needed a referral to Mr Gonzalvo to investigate the source of those problems, however, that episode of neck and right shoulder problem appears to have been relatively short lived rather than a demonstration of some more serious and long-term problem. The treatment which the plaintiff sought is consistent with what he said in his first affidavit, that after he obtained work with Spotless, his neck and right shoulder were intermittently symptomatic, which led him to see Dr Baglar and then Mr Gonzalvo.[49] Additionally, during the plaintiff’s oral evidence, he conceded that he was experiencing some levels of pain in his neck and right shoulder at around the time when he saw Dr Baglar and Mr Gonzalvo.[50]
[49] PCB 29
[50] Transcript 46, 63, 70 and 71
47Thirdly, and allied to the last point, I accept that the plaintiff was probably prescribed Panadeine Forte by Dr Baglar to treat the levels of pain that he was experiencing in either his neck and/or his right shoulder.
48Fourthly, I accept the plaintiff’s explanation for the production of the medical certificates provided by Dr Baglar declaring that he was not working as at the date when the medical certificates were given to him. I accept his evidence that they were completed by Dr Baglar, and perhaps someone else, and were given to him. It was very careless of him to simply then sign off on the medical certificates without reading them, but the additional difficulty faced by the plaintiff is his poor facility with the English language, which I accept would have made it difficult for him to understand the content of the medical certificates.
49Fifthly, the fact that the plaintiff was pursuing a superannuation claim does not of itself work against the plaintiff. He was advised to pursue the claim, and he obviously accepted that advice. It became clear through the process of the provision of supporting medical reports from Dr Baglar that the plaintiff was in fact working.
50Lastly, I can see the basis upon which the defendant collected the clinical notes, medical reports and other materials which contradict the position occupied by the plaintiff relevant to whether he recovered or not, but I do not accept that it goes anywhere near as far as the defendant would have it, that the plaintiff was suffering persisting problems with his neck and right shoulder, and, to some extent, his left shoulder, and that he was incapacitated to some significant degree, both in terms of his capacity for work and capacity to engage in non-working activities.
51However, and despite these findings, I prefer the plaintiff’s submission that the fact that he worked in what can only be described as heavy manual work with Ikon over a significant period of time is a very clear demonstration of the return to a full capacity for work. The fact that the plaintiff was performing that heavy manual work, and in particular, performing increasingly heavy work and moving heavy metal cages, points to him very probably suffering significant stress and strain on his body which I think goes some way to explain why he physically broke down on 22 December 2016.
52What this leads me to is that I accept the plaintiff’s evidence that he returned to a physical capacity to perform work with Spotless and then Ikon as a cleaner. I also accept his evidence that he returned to social soccer, swimming, social basketball, riding a bicycle, attending the gym, recreational fishing, and had a reasonable sitting, standing and walking tolerance. He was able to sleep well. He was not troubled much by pain and restriction of movement in his neck and right shoulder, and his resort to medical treatment was not significant.[51]
[51] PCB 33-34 and 37-39
The neck injury
53The plaintiff saw Dr Sharifuddin Sidik, general practitioner at the Dallas Clinic, on 22 December 2016. Dr Sidik obtained a history from the plaintiff that on 22 December 2016, he experienced pain in his lower back, right shoulder and neck “as he was pulling a rubbish bin”. He was referred to have an x-ray. It would appear that he was given a certificate to be off work for a week and then to be reviewed. The review occurred on 29 December 2016. Dr Sidik obtained a history that the plaintiff’s right shoulder was worsening and that he was at risk of suffering a frozen shoulder. He referred him to have physiotherapy. He proposed to have the plaintiff undergo an ultrasound. He prescribed him Mobic and Panadeine Forte.[52]
[52] PCB 206
54It would appear that the plaintiff then returned to the care of Dr Baglar. He referred the plaintiff to Mr Gonzalvo, and it would appear specifically for the purpose of Mr Gonzalvo determining the injury suffered by the plaintiff on 22 December 2016 and what treatment he needed. Mr Gonzalvo saw the plaintiff on 23 August 2017. He referred him to have an MRI scan of his neck, which was performed on 12 September 2017,[53] and then reviewed him on 13 September 2017. At the review, he considered that the MRI scan disclosed disc degeneration below the level of the previous fusion performed by Associate Professor Bittar. He recommended that the plaintiff undergo pain management, physiotherapy and hydrotherapy. He provided two courtesy letters to Dr Baglar, dated 25 August 2017[54] and 19 September 2017,[55] setting out the product of his examinations of the plaintiff.
[53] PCB 57-58
[54] PCB 90
[55] PCB 91
55Dr Baglar then referred the plaintiff to Associate Professor Bittar, who saw the plaintiff on 20 March 2018. He provided a courtesy letter to Dr Baglar bearing that date.[56] By the time Associate Professor Bittar saw the plaintiff, he had seen Mr Gonzalvo, had been sent to a pain management program at the Dorset Rehabilitation Centre, and had been referred to Mr Pullen, orthopaedic surgeon, who operated on the plaintiff’s right shoulder. Associate Professor Bittar reviewed an MRI scan dated 25 January 2018 obtained by Dr Baglar. He considered that the plaintiff’s symptoms in his neck were emanating from the C5-6 level, which is the level below that which he operated on in 2012. He recommended the plaintiff undergo a right C6 nerve sheath injection, which the plaintiff was reluctant to have. He also recommended that the plaintiff obtain some diagnostic confirmation of his right shoulder and arm problems by having nerve conduction studies, and he intended to refer the plaintiff to Dr Kilner Brasier, physician, for an opinion relevant to the plaintiff returning to work.
[56] PCB 92-93
56Dr Ali Kian Mehr, physical medicine and rehabilitation specialist, performed nerve conduction studies on the plaintiff on 10 May 2019.[57] He considered that there was electrode diagnostic evidence of mild right C6 nerve root irritation. Associate Professor Bittar then reviewed the plaintiff on 13 May 2019. He provided a courtesy letter bearing the same date.[58] He had the results of the nerve conduction studies. He considered that the nerve conduction studies revealed evidence of C6 nerve root irritation consistent with the plaintiff’s complaints of right arm pain. He advised the plaintiff that his treatment options were ongoing conservative treatment or further surgery at C5-6 comprising a C5-6 anterior cervical decompression and fusion.
[57] PCB 63-66
[58] PCB 94
57The defendant relied upon a Certificate of Opinion of the Medical Panel dated 23 January 2020. It was posed a rather curious question, but the answer is clear:
“Question 3Do you consider the following medical, personal and household or occupational rehabilitation service(s) or proposed medical, personal and household or occupational rehabilitation service(s) appropriate for the worker’s injury and/or condition:
(i) C5/6 Anterior Cervical Decompression and Fusion?
Answer:In the Panel’s opinion C5/6 Anterior Cervical Decompression and Fusion is not currently appropriate for Mr Saricayir’s cervical spine condition.”
58The Medical Panel’s Reasons for Opinion were tendered by the parties, both of whom submitted that the reasons are to be treated in the same way as any other tendered medical report.[59] The Medical Panel was provided with yet another MRI scan of the plaintiff’s neck performed on 6 June 2019.[60] It was also provided with the nerve conduction studies. After examining the plaintiff, the Medical Panel agreed with the opinion of the radiologist who performed the MRI scan, concluding that the plaintiff had suffered a soft tissue injury of the cervical spine on the background of multilevel cervical spondylosis and previous intervertebral fusion at the C4-5 level with no current clinical or radiological evidence of C6 radiculopathy and EMG evidence of mild right C6 nerve root irritation.
[59] PCB 14-25
[60] DCB 61
59The Medical Panel formalised its diagnosis in answering Question 1 in its Certificate of Opinion, describing the plaintiff’s neck injury as:
“A soft tissue injury of the cervical spine on the background of multilevel cervical spondylosis and a previous cervical spine injury treated with intervertebral fusion at the C4/5 level, with no current evidence of right C6 radiculopathy.”
60The balance of the medical evidence relevant to a diagnosis of the plaintiff’s neck injury is taken up in a number of medico-legal reports. I will now summarise them in chronological order.
61Associate Professor Umberto Boffa, consultant occupational and environmental physician, examined the plaintiff on 9 January 2018. He saw him in the context of a review of the plaintiff’s entitlement to weekly payments of compensation and medical and other health services. Notwithstanding the limited scope of his involvement, he considered that the plaintiff had suffered a post-surgical aggravation of cervical spondylosis without radiculopathy.[61]
[61] DCB 114-18
62Dr Slesenger, specialist occupational physician, examined the plaintiff on 26 June 2017, and provided a report dated 4 July 2017; however, that report was not included in the defendant’s Court Book. He re-examined the plaintiff on 14 November 2018, and provided a report dated 22 November 2018.[62] He provided a supplementary report dated 6 May 2019.[63] He reviewed the plaintiff again on 17 June 2021, and provided a report dated 22 June 2021.[64] After examining the plaintiff on 14 November 2018, Dr Slesenger addressed the question of causation relevant to what occurred on 22 December 2016. Rather than address the question of causation directly, he put it somewhat curiously in saying that he was satisfied “that the occupational exposures are a plausible cause of Mr Saricayir’s impairment”. He did not address the question of causation again when he re-examined the plaintiff subsequently. I think the manner in which he expressed his view is consistent with a guarded acceptance that the symptoms described to him by the plaintiff were the result of the plaintiff’s work on 22 December 2016.
[62] DCB 20-28
[63] DCB 29-31
[64] DCB 54-75
63Mr Ales Aliashkevich, neurosurgeon, examined the plaintiff on 22 February 2020, and provided a report bearing the same date.[65] He re-examined the plaintiff on 17 May 2021, and provided a report bearing the same date.[66] He provided a supplementary report dated 9 July 2021.[67] Mr Aliashkevich was provided with more medical reports than the parties provided in their respective Court Books; however, neither took any issue that his opinion was in any way skewed by what he was provided. His reports are extraordinarily lengthy and are largely taken up by unnecessary summaries of materials he was provided, however, after reading those materials, examining the plaintiff and examining relevant radiology, he reached a number of conclusions relied upon by the plaintiff.
[65] PCB 179-200
[66] PCB 131-155
[67] PCB 201-204
64Mr Aliashkevich considered that the plaintiff suffered an injury to his neck on 22 December 2016. In his second report, he provided a diagnosis that the plaintiff had suffered an aggravation of cervical spondylosis. In his supplementary report, he considered that if the plaintiff had not suffered the injuries to his neck and right shoulder that, on the balance of probabilities, the plaintiff would have been able to continue with his employment with Ikon had it not been for the injuries he suffered on 22 December 2016.
65Ms Jennifer Flynn, orthopaedic surgeon, examined the plaintiff on 9 April 2020, and provided a report dated 24 April 2020.[68] She considered that the plaintiff had suffered an aggravation of cervical spondylosis. Although, she obtained a history of the plaintiff suffering injury to his right shoulder, and was provided with radiology and reports of Mr Pullen, the questions directed to her were limited to the plaintiff’s neck, lower back and left shoulder.
[68] PCB 103-115
66Mr Graeme Doig, orthopaedic surgeon, examined the plaintiff on 14 May 2021, and provided a report dated 11 June 2021.[69] Mr Doig was not asked to express an opinion on causation, save by implication, and even in that setting, he said very little. The questions he was asked were more directed to the transport accident and the transport accident injuries.
[69] PCB 172-177
67Dr Horsley, occupational physician, examined the plaintiff on 15 June 2021, and provided a report bearing the same date.[70] She considered that the plaintiff had suffered an aggravation of his pre-existing neck condition.
[70] PCB 156-169
68I will now endeavour to draw together the threads of the medical evidence relevant to causation, and what injury the plaintiff suffered on 22 December 2016.
69Neither Dr Baglar nor Associate Professor Bittar directly addressed the question of causation of the neck injury, but inherent in the later reports of Dr Baglar, and in the reports of Associate Professor Bittar, they accept that the plaintiff’s work on 22 December 2016 resulted in the plaintiff suffering the neck injury, and I think it is a fair inference to draw that Associate Professor Bittar considered that the C6 nerve root irritation emanating from the C5-6 level of his neck resulted from the plaintiff’s work on that day.
70I do not think that the opinions of Associate Professor Boffa, Dr Slesenger or Mr Doig add very much; however, what they do not do is doubt causation and the plaintiff having suffered an injury on 22 December 2016. The opinions of the remaining medical practitioners support the conclusion that the plaintiff’s work on 22 December 2016 resulted in injuries to both his neck and right shoulder. Indeed, that issue is put to bed in any event by the Certificate of Opinion of the Medical Panel, because it expressed the opinion that the plaintiff had suffered an injury to both his neck and right shoulder.[71]
[71]Section 313(4)(a) and (b) of the Workplace Injury Rehabilitation and Compensation Act 2013 provides that the opinion of the Medical Panel is not only to be adopted and applied by me in this proceeding, but it is to be accepted as final and conclusive by me of the medical questions posed to it
The right shoulder
71Not all of the medical practitioners whose evidence I have summarised relevant to the causation of the plaintiff’s neck injury examined the plaintiff’s right shoulder and offered an opinion relevant to causation.
72Again, Dr Baglar did not directly address the question of causation of the right shoulder injury, but inherent in his later reports is an acceptance that the plaintiff’s work on 22 December 2016 resulted in the plaintiff suffering the right shoulder injury.
73Dr Baglar referred the plaintiff to Mr Pullen. The plaintiff first saw him on 15 February 2017. Mr Pullen considered that the plaintiff had suffered a full-thickness tear of his rotator cuff, and that he had the presence of a large calcific deposit in the supraspinatus tendon. He performed an arthroscopy on the plaintiff’s right shoulder which comprised a subacromial decompression, debridement and excision of the calcific deposit on 9 May 2017. Apart from a number of courtesy letters,[72] Mr Pullen provided a report to the plaintiff’s former solicitors dated 8 November 2017.[73]
[72] PCB 95, 96, 97 and 98-99
[73] PCB 100-102
74Otherwise, without going through all of the other medical reports, I think it is sufficient to say that none of the other medical practitioners who considered the plaintiff’s right shoulder injury expressed an opinion doubting the causal link with its occurrence and the plaintiff’s work on 22 December 2016. Furthermore, like the neck injury, the issue of causation is put to bed by the opinion of the Medical Panel.
Conclusions thus far
75I accept the plaintiff’s evidence that he returned to a high enough level of functioning to be able to return to work with Spotless and then with Ikon, and was capable of meeting the physical demands of his work with Ikon until 22 December 2016, when he was engaged in what can only be described as a palpably arduous task.
76I also accept the plaintiff’s evidence that in returning to that high enough level of functioning, he was able to return to social, domestic and recreational pursuits which had initially been lost to him after he suffered the transport accident injuries.
The neck – pain and suffering
77The plaintiff swore two affidavits in which he described the pain and suffering consequences of the neck injury and the right shoulder injury.[74] In summary, he said:
[74] PCB 27-34 and 35-40
· he suffers persistent neck and right shoulder pain
· he suffers headaches almost every day due to the neck
· he suffers worsening pain in cold weather
· sitting, standing and walking are restricted by neck pain. Although, the plaintiff now walks about 2 kilometres per day as his only exercise. Sitting is more affected by the neck injury limiting sitting to about 30 minutes because of pain and tingling in the neck
· he has interference with the ability to lift objects and to twist and turn due to the neck injury
· he has interference with sleep, waking a number of times during the night
· the interference with sleep will occur due to the right shoulder injury when rolling onto his right side, and in the neck when lying on his back for too long
· the interference with sleep results in him feeling tired during the day, lethargic and short tempered
· strain on his spine will increase the pain
· he has an inability to play social games of soccer
· he has an inability to go swimming at the local pool during winter and up to 3 kilometres at a time at the beach. Swimming is more interfered with by the right shoulder
· he has an inability to play social games of basketball, more due to the right shoulder injury
· he has an inability to ride his mountain bike
· he has an inability to go to the gym three or so times per week
· he has an inability to engage in recreational fishing
· he needs to take Panadeine Forte two to three times per day, and Panadol Osteo two to three times per day, to obtain relief from pain.
An aggravation/disaggregation and pain and suffering consequences
78Both parties accepted that the neck injury and the right shoulder injury constitute an aggravation of pre-existing pathology in the plaintiff’s neck and right shoulder.
79It is for the plaintiff to satisfy me that the aggravation has resulted in an injury which is a “serious injury”. It is for the plaintiff to firstly identify each injury, that is, the pre-existing injury and the injury resulting from the aggravation; secondly, to identify and separate the impairment consequences of each injury, and thirdly, to identify whether the additional impairment caused by the aggravation qualifies as a “serious injury”.[75]
[75]Petkovski v Galletti [1994] 1 VR 436 (“Petkovski”) and Pullicino v Burden’s Plumbing (Vic) Pty Ltd [2019] VSCA 88 (“Pullicino”)
80The defendant submitted that the plaintiff has aggregated the impairments of the neck and the right shoulder which is impermissible.[76] It follows that it is for the plaintiff to satisfy me that there is sufficient disaggregation for me to conclude not only that the plaintiff suffered an injury to the neck and the right shoulder, but that the consequences of each are such that they satisfy the legal principles relevant to what he must prove to demonstrate that the aggravation of the injuries to the neck and the right shoulder are serious injuries.
[76]Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 (“Lu”), and Transport Accident Commission v Zepic [2013] VSCA 232 (“Zepic”), however, since composing draft reasons the Court of Appeal delivered judgment in Victorian WorkCover Authority v Brassington [2021] VSCA 236 (“Brassington”) relevant to the troubling issue emerging from an interpretation of Lu whether aggravation is permissible
81The consequences of the impairment of the function the plaintiff’s neck are – persistent pain; headaches; restriction on sitting, standing and walking; interference with the ability to lift objects and twist and turn; strain on the spine; increasing pain in the neck, and interference with sleep when lying on his back for too long.
82The consequences of the impairment of the function of the plaintiff’s right shoulder are – persistent pain; interference with sleep when rolling onto his right side; swimming (although by inference, not entirely), and basketball.
83What is then clear is that all of the remaining consequences are contributed to by both the impairment of the function of the plaintiff’s neck and right shoulder. My overall impression of the medical evidence is that the plaintiff has not described that the impairment of the function of his neck and right shoulder is neither greater nor lesser than the other. What appears to me is that they are both approximately equal in their contribution to worsening pain in cold weather; interference with mountain bike riding, going to the gym and engaging in recreational fishing, and, very probably, the use of the medication is approximately equally required to treat all the pain which the plaintiff experiences.
84It would be remarkable if an analysis of the kind I have made was prohibited by the legal principles enunciated in Lu, Zepic, and Brassington, and indeed, I do not read the relevant judgements to suggest that to be the case. What I do consider is a proper way to analyse a case such as this is to identify whether the consequences which are individual to the particular impairment of body function and the contribution by both enables a realistic impression whether the consequences of the particular impairment of body function can meet the statutory test of seriousness.
85What this leads me to is that I am satisfied that the aggravation of the plaintiff’s neck injury has resulted in the consequences which I have referred to above. Additionally, it leads me to being satisfied that the aggravation of the plaintiff’s right shoulder injury has resulted in the consequences which I have referred to above. In both cases of the neck and the right shoulder, I am satisfied that the aggravation meets the Petkovski and Pullicino test. Additionally, I am also satisfied that when the impairment consequences of the neck and the right shoulder are judged in comparison with other cases in the range of possible impairments or losses of a body function, as the case may be, they can fairly be described as being more than significant or marked, and as being at least very considerable.
86If it is necessary to drill down even further than I have, then what appears to me is that the impairment of the function of the neck has consequences which interfere with practically every aspect of the plaintiff’s life. To be in pain, to have sleep interfered with, and to rely on a significant dosage of medication of itself speaks of consequences which meet the statutory test of seriousness. Add to that a level of interference with recreational activities, then I think it is beyond question that the consequences meet the statutory test of seriousness.
87I apply the same reasoning to the impairment of the function of the right shoulder, and I reach the same conclusion.
Loss of earning capacity consequences
88Before delving into an analysis of the evidence relevant to the plaintiff’s loss of earning capacity consequences, it is worth remembering that the plaintiff first returned to cleaning work in August 2015 with Spotless, and then to the more arduous and physical work with Ikon in September 2016. He made attempts to return to work after 22 December 2016 which were unsuccessful. He ceased work with Ikon altogether in July 2017. He has not worked since.
89The medical evidence relied on by the parties relevant to whether the plaintiff can establish the requisite level of loss of earning capacity consequences to meet the statutory test of seriousness are principally the opinions of Dr Horsley, Dr Slesenger and the Medical Panel.
90I incorporate the conclusions I have already reached in my summary of the relevant evidence thus far, and in particular, the medical evidence which underwrites the conclusions I have reached regarding the impairment of the function of the plaintiff’s neck and right shoulder and whether the impairment consequences of both meet the statutory test of seriousness.
91I will firstly turn to the conclusions reached by the Medical Panel. The Medical Panel, in answer to Question 2, whether the plaintiff has a work capacity, answered it by saying that, in its opinion, the plaintiff does have a current work capacity; however, it provided no opinion relevant to any jobs which the plaintiff could undertake. It did consider five jobs referred to in the report of Nabenet on 26 September 2018.[77] The jobs are:
· Supervisor (cleaning)[78]
· Customer Service Representative[79]
· Administration Support Officer[80]
· Car Park Attendant[81]
· Light Product Assembler (Seated).[82]
[77] DCB 169-181
[78] DCB 174-175
[79] DCB 175-176
[80] DCB 176-177
[81] DCB 178-179
[82] DCB 179-180
92The Medical Panel considered that the job as a Carpark Attendant was suitable. It excluded Supervisor (cleaning) and Light Product Assembler as exceeding the plaintiff’s physical capacity. It excluded Customer Service Representative and Administration Support Officer because of the plaintiff’s lack of facility with the English language, both spoken and written. It considered Carpark Attendant as suitable, both with respect to the physical capacity of the plaintiff to undertake it and the requirement for him to communicate in English.
93The defendant submitted that the plaintiff has an adequate facility with the English language, both spoken and written, to the extent that the jobs of Customer Service Representative and Administration Support Officer are suitable. It pointed to the fact that the plaintiff has attended medical examinations without an interpreter or with friends to assist him, and was considered by Dr Baglar as being proficient in English.[83] I do not doubt that the plaintiff has some degree of facility with English, both in a spoken and written form, however, I have no way of assessing whether it is crude, or is sophisticated to some degree.
[83] PCB 75
94The evidence disclosed that the plaintiff undertook two English courses after he arrived in Australia. One was in 2011 or 2012 and another was in 2015. He had no facility with the English language at all before engaging upon that course. Under cross-examination, the plaintiff doubted that he could engage in another English course due to his inability to sit for an hour before becoming uncomfortable and because of neck and shoulder pain and headaches.[84] Later, and under further cross-examination, he said that he does not have sufficient English to speak to a customer and to communicate with them regarding questions which the customer may have.[85] Under re-examination, the plaintiff said that he speaks in the Turkish language in his day-to-day life, and from that answer, I infer that English is something which he does not speak nor practice.[86]
[84] Transcript 28-29
[85] Transcript 72
[86] Transcript 79-80
95The defendant’s cross-examination that the plaintiff can engage in another English course and develop a more sophisticated capacity to speak and write in the English language underestimates the difficulty in learning a language. I also think it underestimates the difficulty now faced by the plaintiff that, with the superimposed problems he experiences with his injuries and their consequences, his capacity to learn in a classroom setting presents itself as a very real obstacle to him being able to reach a level of sophistication that would enable him to engage in the jobs which the Medical Panel excluded because of its opinion that his facility with English was an impediment to him undertaking those jobs.
96I add that the job descriptions of Customer Service Representative and Administration Support Officer suggest that they are tolerably sophisticated jobs, probably requiring significantly more than a language skill that the plaintiff will be able to acquire. Both require communication skills, and the ability to deal with written materials. Quite obviously this is beyond the plaintiff’s capacity now, and I do not accept that in some futuristic way I can forecast whether the plaintiff would be able to acquire the level of sophistication with English to be able to adequately cope with the demands of those jobs.
97Dr Horsley was asked to comment on the Nabenet report. She considered that the real impediment to the plaintiff being able to return to suitable employment was his neck injury. She referred to it as being the primary issue impacting upon his capacity to return to work. She considered each of the relevant jobs, and concluded that because of the physical requirements of some of the jobs, and the requirement to have a reasonable facility with the English language, that the only job which was suitable was the job as a Carpark Attendant, but not on a full-time basis. She expressed concern if the plaintiff had to repetitively climb in and out of motor vehicles, and whether his facility with the English language might also be an impediment, however, she considered that he could work part-time in the vicinity of 15-20 hours per week.[87]
[87] PCB 167-168
98Dr Slesenger was also asked to comment on the Nabenet report. He did so in his report dated 22 November 2018. He was specifically asked to consider Supervisor (cleaning), Administration Support Officer and Light Production Assembler jobs. He considered that the plaintiff could return to work as an Administration Support Officer. He said he was generally optimistic that the plaintiff could return to work as a Supervisor (cleaning) and as a Light Production Assembler; however, in relation to both of these jobs, he recommended a job specific worksite assessment to ensure that the job demands lay within the limits of the plaintiff’s capacity. Otherwise, he expressed a general opinion that the plaintiff retained a capacity for work with restrictions.
99In his report dated 22 June 2021, Dr Slesenger expressed some reservations about the plaintiff’s overall presentation, the product of his medical treatment, and whether he was in fact engaged in manual work. Despite those reservations, his first recommendation was that the plaintiff return to work as an administrator or in a supervisory role, commencing four hours a day, four days per week. I assume that he considered that jobs of Administration Support Officer and Supervisor (cleaning) were suitable. His second recommendation was that the plaintiff could consider returning to work as a Site Supervisor, or a Health and Safety Officer or an Onsite Manager in a cleaning role, however, he recommended that job specific worksite assessments needed to be undertaken, presumably for the same reason related to other jobs he considered, to ensure that the job demands lay within the limits of the plaintiff’s capacity.
100Dr Slesenger may have misunderstood the information he was provided, that the plaintiff had completed a Diploma in Building Construction. It would appear that Dr Slesenger considered that qualification together with the plaintiff’s education in Turkey as readily qualifying him for the jobs he referred to in his second recommendation. The Diploma was described by the plaintiff as involving tuition one day a week for four hours. He attended for three weeks only because COVID-19 prevented him from attending the course any further. The persons giving the instruction disappeared, according to the plaintiff, with the result that the Education Department intervened and granted the Diploma without the plaintiff having completed all the subjects necessary to properly qualify for the Diploma.[88]
[88] Transcript 25-26
101Interestingly, Dr Slesenger did not consider the job of Carpark Attendant at all, despite it being referred to in the Nabenet report and being central to the defendant’s submission that the plaintiff is fit for each of the jobs considered by the Medical Panel.
102Dr Horsley was asked to consider what work restrictions would apply to the plaintiff’s neck condition alone. She considered that an extensive level of restriction should apply, including avoidance of repetitive overreaching; avoidance of repetitive pushing and pulling; avoidance of above shoulder activities limiting work between shoulder and waist height; avoidance of static postures involving the neck; access to an ergonomically sound workstation; avoidance of lifting items greater than 8-10 kilograms on an occasional basis; avoidance of lifting items up to 8 kilograms on a repetitive basis, and the implementation of good manual handling techniques, even when lifting light items.
103With these restrictions in mind, Dr Horsley considered that the jobs of Customer Service Representative and Administration Support Officer were not suitable due to the plaintiff’s facility with the English language, and would not be unless he improved his skills in that respect considerably. She considered that the same impediment applied to the role of Supervisor (cleaning), however, she considered that he could work in that capacity for 15-20 hours per week if his lack of facility with the English language did not see him put into a hands-on supervisor role. She considered that the job of Carpark Attendant might be suitable on a part-time basis for 15-20 hours per week, but she cautioned again that his facility with the English language may impact on his capacity to see to any administrative component in that role. She discounted the role as a Light Product Assembler as being suitable because of the likelihood of the plaintiff aggravating the condition of his neck and right shoulder.
104What then underwrote the opinion of Dr Horsley was her general view that the plaintiff would have considerable difficulty returning to work in any capacity except on a part-time basis in the vicinity of 15-20 hours per week.
105Like so many serious injury applications, the judge is expected to determine which medical opinion to accept based upon medical reports. It is often not an easy task, and no less so here, except that I think Dr Horsley has undertaken a better analysis of the restrictions that would apply to the plaintiff’s neck only, and then with respect to his right shoulder. It would appear to me from the structure of her opinion that it was then the lens through which she looked in determining whether it was the neck which primarily would make some jobs unsuitable, and others suitable if the plaintiff was able to work limited hours and with the restrictions which she considered were appropriate. It is for these reasons that I prefer her opinion over that of Dr Slesenger, and while returning to Dr Slesenger, I think his opinion is couched in levels of uncertainty relevant to job specific worksite assessments which appear to me to never have been undertaken, leaving his opinion of limited utility.
Calculation of loss of earning capacity
106The parties agreed that the plaintiff’s “without injury” earnings are $932 gross per week, and 60 per cent of that figure is $559.20.
107The gross earnings in the three jobs which the defendant submitted are suitable are as follows:
· Car Park Attendant - $1,034 gross per week. The hourly rate is $27.21. 15 hours is $408.15. 20 hours is $544.20.
· Administration Support Officer - $1,000 gross per week. The hourly rate is $26.31. 15 hours is $394.65. 20 hours is $526.20.
· Customer Service Representative - $1,200 gross per week. The hourly rate is $31.57. 15 hours is $473.55. 20 hours is $631.40.
108The only job said to be suitable which will see him fail in proving the requisite degree of loss of earning capacity is the job as a Customer Service Representative if he is capable of working 20 hours per week.
109I am satisfied that the plaintiff has suffered the requisite degree of loss of earning capacity for the following reasons:
110Firstly, I prefer the opinion of Dr Horsley for the reasons which I have already expressed. I think her consideration of the plaintiff’s neck injury alone demonstrates very clearly why she considered that plaintiff’s neck injury is the primary issue impacting upon his capacity to return to work. I interpret that to mean that the impairment of the function of the plaintiff’s neck alone underwrites her opinion as to the suitability or otherwise of the jobs which the defendant proposes are suitable.
111Secondly, I am not satisfied that the plaintiff’s qualifications are as demonstrative of a transferable skill as suggested by Dr Slesenger, and I am not satisfied that the Diploma is of any real worth as a qualification given the manner in which the plaintiff obtained it. The reality is that the plaintiff worked in labouring/factory-type work, and his real qualifications and experience in Australia lie in those fields of endeavour. Furthermore, he left the work he did in Turkey behind him a long time ago, and would by simple dint of the effluxion of time have lost whatever skills he acquired through his tertiary education and subsequent work in Turkey.
112Thirdly, although the plaintiff has undertaken courses in English, they have not been successful in the plaintiff acquiring a skill level sufficient to undertake any realistic and sophisticated level of communication. Although, there are statements attributed to the plaintiff that he has a facility with the English language, that has to be seen in context. A rudimentary skill will allow communication at a basic level, but not at a more sophisticated level, and that is undoubtedly a very trite observation. To suggest that the plaintiff can raise himself to something more than a rudimentary skill I think is optimistic, and I am not satisfied that the evidence discloses that he has that capacity, and moreover, I prefer the plaintiff’s evidence in that respect, that his facility with the English language is inadequate to communicate at the level required in jobs proposed by the defendant.
113Fourthly, the opinion of Dr Slesenger is couched in the need for further consideration of whether any of the jobs are suitable. Dr Horsley was not as concerned, but what I think underwrites her opinion of the suitability of, for example, the job of Carpark Attendant, is a general opinion that the plaintiff has a capacity to return to work for 15-20 hours per week in suitable employment, but that there are aspects of the work as a Carpark Attendant which might make it not so suitable.
114Fifthly, Dr Horsley’s opinion is inevitably woolly when it comes to whether the plaintiff can work 15 hours a week or can work 20 hours a week, or somewhere in between. It is not possible for me to determine whether it is fair to work on the lower number of hours or the higher number of hours or somewhere in between.
115Sixthly, based upon my summary of the whole of the evidence relevant to loss of earning capacity, and my preference for the opinion of Dr Horsley, I have ultimately concluded that the plaintiff’s facility of the English language is inadequate, and likely to remain inadequate, for him to engage in work as an Administration Support Officer and as a Customer Service Representative. On balance, he is probably suitable to engage in work as a Carpark Attendant.
116Lastly, the necessary comparison demonstrates that at 20 hours per week means that he has succeeded in satisfying me that his loss of earning capacity consequences when judged in comparison with other cases, in the range of possible impairments or losses of a body function, as the case may be, can fairly be described as being more than significant or marked, and as being at least very considerable.
Conclusion
117I will grant the plaintiff leave to bring a proceeding both with respect to pain and suffering consequences and loss of earning capacity consequences.
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