Schaefer v Mellerick Plumbing Pty Ltd
[2023] VCC 554
•17 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-22-03102
| JACKSON DALE SCHAEFER | Plaintiff |
| v | |
| MELLERICK PLUMBING PTY LTD (ABN 14 293 589 539) | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 April 2023 | |
DATE OF JUDGMENT: | 17 April 2023 | |
CASE MAY BE CITED AS: | Schaefer v Mellerick Plumbing Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 554 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to left lower leg, ankle and foot – scarring and disfigurement – whether pain and suffering consequences are “serious” under the Act – psychological injury, anxiety and depression – whether “severe” under the Act – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s327 and s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave is granted to the plaintiff to bring common law proceedings to recover damages for pain and suffering and loss of earning capacity arising out of the physical injury to his left lower limb and disfigurement on 3 October 2017 in the course of his employment with Mellerick Plumbing Pty Ltd. The plaintiff’s application for pain and suffering and loss of earning capacity in respect of the psychological or psychiatric injury is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr Y C Chen | Carbone Lawyers |
| For the Defendant | Mr A W Middleton | Russell Kennedy Lawyers |
HIS HONOUR:
1This is an application brought by Originating Motion, whereby the plaintiff applied for leave pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages suffered by him arising out of his employment with the defendant, Mellerick Plumbing Pty Ltd. The plaintiff alleges he was injured in the course of his employment on 3 October 2017.
2The plaintiff seeks leave to bring proceedings to recover damages for pain and suffering and loss of earning capacity as a result of his injury at work. At the commencement of the proceeding, Mr Middleton, on behalf of the defendant, conceded that the plaintiff be granted leave to bring proceedings for pain and suffering damages only in respect of his physical injury to his left lower leg and the disfigurement to his left lower leg. The proceeding continued on the question of whether the plaintiff can establish leave pursuant to the definition of “serious injury” to recover damages for loss of earning capacity as a result of the physical injury to his left lower leg and his psychological/psychiatric injury.
3The following evidence was heard during the hearing:
· The plaintiff gave evidence and was cross-examined.
· The plaintiff tendered the following exhibits:
§Exhibit “A”, the Plaintiff’s Court Book (“PCB”), pages 7 to 69 inclusive, pages 70 and 158, and pages 218 to 227 inclusive.
· The defendant tendered the following exhibits:
§Exhibit 1, the Defendant’s Court Book (“DCB”), pages 7 to 15 inclusive and pages 25 to 108 inclusive.
4After the concession made by Mr Middleton, on behalf of the defendant, in respect of the pain and suffering certification, the following matters were identified as issues in this application:
(a) the plaintiff has not satisfied the psychological and psychiatric injury required to support leave for the grant of a serious injury certificate;
(b) the plaintiff has no ongoing treatment;
(c) the plaintiff has the capacity to engage in suitable employment but has not attempted to do so; and
(d) the plaintiff has failed to establish a 40 per cent loss of income under the common law as required for a worker under twenty-six years of age.
The statutory scheme
5The application is brought under the definition of “serious injury” contained in s325(1) of the Act, which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of body function”.
6The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 1 July 2014;[1]
(b) the injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
(c) the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) subsection 2(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being “more than ‘significant’ or ‘marked’”, and as being “at least very considerable”;
(e) subsection 2(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(g) in conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss2(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] See s1 of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[2] Barwon Spinners (ibid) at paragraph [33]
[3] ibid
7I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
8The plaintiff was born in 1999 and is now twenty-three years of age. The plaintiff has lived and worked in Australia for the whole of his life.
9The plaintiff attended school to Year 9 level.[4] The plaintiff was diagnosed with dyslexia, and experienced some difficulties engaging in formal education.
[4]PCB 7
10In 2016, the plaintiff completed a VCAL course at Melbourne Polytechnic and obtained a Certificate III in Plumbing.[5]
[5]PCB 7
11At the completion of his studies at Melbourne Polytechnic, the plaintiff obtained a full-time position as an apprentice plumber with Mellerick Plumbing Pty Ltd. At the time of his injury on 3 October 2017, the plaintiff had been an apprentice plumber with Mellerick Plumbing Pty Ltd for a little over one year. In the course of his employment as an apprentice plumber, the plaintiff also attended trades school in that period.
The Plaintiff’s injury in the course of his employment with the Defendant
12The plaintiff was employed full time as an apprentice plumber. His work hours were approximately 38 hours per week but on occasions, he would be required to work overtime.
13On 3 October 2017, the plaintiff attended at a worksite in Bunting Crescent, Kalkallo at 7.00am to begin his work duties. The plaintiff was required to bring tools to the site, as well as hooking up pipes and marking out the downpipe. He described the accident in the following terms:
“I made a call to Joel, one of the workers to get the plans off him that I needed for my job. At approximately 8:30 am, Joel was driving an excavator on site. Whilst performing my required work duties the excavator came very close to me. I recall shouting out to the (sic) Joel but he did not hear me due to the noise of the excavator engine. Next thing I knew the excavator tracks were on my left leg.
At first, I could not feel anything. My left leg felt numb. I called out to Joel to tell him of what happened. When the excavator backed up off my foot, from my shin downwards I could not feel anything. I tried to run off but fell over. I then began to suffer immense pain in my lower left foot and leg.
I sat down with the sparky and my workmate Joel was called over. Joel picked me up, took me to the car, and drove me to the Northern Hospital. On the car ride to the hospital, I called up my boss, Justin Mellerick, to tell him of what had happened at work.”[6]
[6]PCB 8-9
14The plaintiff reported the work accident on the day of the accident. The defendant clearly accepts that the plaintiff was injured in the course of his employment on 3 October 2017.
Medical treatment
15The plaintiff was taken to the Accident and Emergency section of the Northern Hospital from the scene of the accident.[7]
[7]PCB 9
16The plaintiff remained in hospital from 3 October 2017 until his discharge on 7 December 2017. In the course of his time in hospital, he had no less than ten separate surgeries to his left lower leg. The surgeries included open reduction and internal fixation to his left fibula, external fixation to his left tibia, a number of debridement procedures to his left lower leg and to the anterolateral right thigh transfer area of his body.
17The plaintiff subsequently had the metal plates and screws removed from his left leg on 15 February 2018.[8]
[8]PCB 10
18Since the plaintiff’s discharge from the Northern Hospital, his treatment has been managed by a general practitioner, Dr Theodore Vanderzeil. Dr Vanderzeil has recently retired.
19As part of the plaintiff’s treatment, he has been referred to a physiotherapist, Mr Brad Turner, for treatment to his left leg, ankle and foot injuries.
20The plaintiff has also been treated by Mr George Cotsanis, a podiatrist. The plaintiff has orthotics in both his left and right footwear.
21The plaintiff has had no active physical treatment since the final surgery in 2018.[9]
[9]Transcript (“T”) 13
22The plaintiff has initially been prescribed Lyrica, Cortisone, Endone and OxyContin to deal with the pain in his left leg. The plaintiff has successfully weaned himself off the heavy pain medications of OxyContin and Endone.[10] The plaintiff’s current regime of medication is Panadol, four per day, and Nurofen, four per day.[11]
[10]PCB 10
[11]T14
23The plaintiff had a period of time where he was not taking any medications but has resorted to medications due to the swelling in his leg getting worse.[12]
[12]T15
24The plaintiff initially attempted to return to work in July of 2018. The initial attempts were four hours a day for three days a week doing light duties.[13] The plaintiff continued to attempt a full return to work until 18 November 2018, when he was forced to stop work entirely due to the pain in his left leg. The plaintiff has not returned to his place of work since.[14]
[13]PCB 11
[14]PCB 11
25All of the medical practitioners who have assessed the plaintiff in this case agree that the plaintiff cannot return to work as a plumber due to his left leg injury.
26The plaintiff, by his own admission, has not attempted to obtain alternative employment since ceasing his return to work at his job with the defendant.[15]
[15]T18
The mental or behavioural disturbance or disorder of the Plaintiff as a result of the work accident
27The plaintiff has not received any psychological or psychiatric treatment for any mental or behavioural disturbance since the accident. He has not been prescribed any medication by his general practitioner for any psychological or psychiatric condition. The plaintiff has been referred to, and examined by, three separate psychiatrists for the purposes of this application.
Associate Professor Peter J Doherty, consultant psychiatrist
28The plaintiff was examined on behalf of the defendant insurer by Associate Professor Peter Doherty. Professor Doherty prepared a report dated 16 October 2019.
29Professor Doherty noted that the plaintiff had been referred to a psychologist, Richard Weld-Blundell, in April 2018 to assist with the increased frustration and change in mood of the plaintiff.[16] Professor Doherty noted that the plaintiff had not attended a psychiatrist or a psychologist.[17]
[16]DCB 11
[17]DCB 13
30In Professor Doherty’s opinion, the plaintiff had no incapacity for work as a result of his psychiatric condition.[18]
[18]DCB 13
31In summary, Professor Doherty stated as follows:
“From a psychiatric point of view, there is no incapacity for work. By way of personality, he is shy, introverted and reserved young man. There is no diagnosable psychiatric condition present. There is no incapacity for work.”[19]
[19]DCB 15
Dr Rasanjali Rathnayake, consultant psychiatrist
32The defendant also had the plaintiff examined by Dr Rathnayake for psychiatric assessment. Dr Rathnayake prepared a report dated 12 February 2019 for the purposes of this proceeding.
33Dr Rathnayake’s opinion was as follows:
“Mr Schaefer is not yet fit for pre-injury duties and hours. Returning to pre-injury duties could result in an exacerbation of posttraumatic stress symptoms. He does not have a current capacity for pre-injury duties and hours at an alternative employer.
…
Mr Schaefer has a current capacity for suitable employment and full hours. A graduated return to work plan is recommended.
…
Mr Schaefer has a capacity for delivery driver, sales representative building and plumbing supplies and site traffic management. He expressed a wish to work as an earthmoving plant operator or an excavator operator in order to ‘conquer fear’. However, I do not believe that he has a current capacity for the occupations of excavator operator and earthmoving plant operator. He may gain a capacity for those vocations when he fully recovers from posttraumatic stress disorder.”[20]
[20]DCB 59
34I note for completeness, the plaintiff when cross-examined about the “conquer fear”, denied that he told the psychiatrist that he wanted to do the excavator operator job to conquer any fear.[21] The plaintiff simply stated that he was interested in that type of work in the construction industry.
[21]T19
Dr Leon Turnbull, psychiatrist
35The plaintiff was referred to Dr Turnbull for the purpose of medico-legal reporting by the plaintiff’s solicitors. Dr Turnbull prepared two reports, dated 18 February 2022 and 19 January 2023.
36In his first report, Dr Turnbull stated:
“I do not think this man has suffered a severe psychiatric condition and that is a good thing, but he does have some depression and anxiety here and there, and he has some difficulty coping, and I think, diagnostically, that amounts to a mild Adjustment Disorder.”[22]
[22]PCB 50
37In his later report and the most current of all the psychiatric reports, Dr Turnbull stated as follows:
“My impression is, psychologically, he does have some work capacity, though I doubt he could do anything that would remind him of the initial experience of the excavator, and that work capacity, for at least part-time hours, relies on him being psychologically supported. As stated above, if left to his own devices, my anticipation is that he would barely last a few days.”[23]
[23]PCB 56
38Dr Turnbull’s opinion was that the plaintiff required some psychological support in order to get him back to a position where he could obtain employment which was suitable to his physical conditions.
39The plaintiff has failed to establish that he has suffered a psychiatric or psychological injury which can properly be described as “severe” as required under the Act. The application for serious injury certification in respect of psychological and psychiatric condition under sub-paragraph (c) of the definition in relation to pain and suffering and loss of earning capacity is dismissed.
The credit of the Plaintiff
40I have had the advantage of observing the plaintiff give his evidence in court. I also note that the medical practitioners noted the plaintiff as being a straightforward and accurate historian.
41In terms of the plaintiff’s intentions to re-engage with the workforce, Dr Mary Wyatt, occupational physician, who examined the plaintiff on behalf of the defendant, summed it up fairly accurately, when she stated:
“There does not appear to be a focus on re engaging with work, Mr Schaefer refers to having low motivation which he attributes to his mental state. He indicated waiting for his claim to be finalised at this stage, and this seems to be having an impact on return to work in suitable employment.”[24]
[24]DCB 54
42The assessment of Dr Wyatt is consistent with the evidence given by the plaintiff in relation to why he has not engaged with alternative suitable employment. In his evidence, he stated he was having trouble mentally trying to get himself to do things.[25] When queried about that issue by Mr Middleton, the plaintiff stated that his general practitioner advised him “to sit on it for the moment”.[26]
[25]T20
[26]T20
43I accept that the plaintiff is placing his life on hold until the determination of this proceeding in total. In making that statement, I do not say that he is doing that in a deceptive or dishonest way. The plaintiff is a young man who was actively engaged in his apprenticeship as a plumber and been subject to a very serious physical injury which has incapacitated him from continuing with his plumbing career. It was clear from his evidence, and he was not challenged on this, that he did make a genuine attempt to return to work as a plumber but, because of his physical limitations, was unable to successfully do so. All of the medical practitioners who have examined the plaintiff state that he is not suitable for a return to plumbing work as a result of his physical injuries.
44I accept that the plaintiff’s pain in his left leg has increased in more recent times, requiring him to ingest Panadol and Nurofen, four of each per day.[27] In simple terms, he describes the swelling and pain in his legs as “getting worse”.[28]
[27]T14
[28]T15
The Plaintiff’s loss of earning capacity due to the physical injury to his left leg
45At the time of the injury to the plaintiff and presently, the plaintiff is under the age of twenty-six years. The plaintiff is required to satisfy the Court, on the balance of probabilities, that he has lost the ability to earn 40 per cent of his income but for the injury to his leg. The assessment of the loss of income earning capacity is to be conducted on a common law basis.
46The plaintiff commenced his apprenticeship in 2016. The apprenticeship is a four-year position. At the time of this proceeding, he would be a third-year post apprenticeship plumber.
47The plaintiff relies upon the CEPU Plumbing Division Enterprise Agreement for the period 2019 to 2023.[29] As a registered plumber, the plaintiff’s total income would be $2,360.74 per week for a 36-hour week as at 1 March 2023.[30]
[29]PCB 70
[30] PCB 158
48The defendant relied upon a Fair Work Ombudsman pay calculator for a plumbing and mechanical services worker, level 1(a) (new entrant), of a weekly rate of pay of $894.61.[31] The defendant also relied upon a minimum weekly pay for a full-time employee of Advanced plumbing and mechanical services tradesperson/ Advanced sprinkler services fitter tradesperson Level 1 of $1,056.10 per week.[32]
[31]DCB 107
[32]DCB 104
49I find that the rates of pay relied upon by the defendant do not reflect the plaintiff’s “without injury” earning capacity as at this time. The plaintiff, in the ordinary course of events, would have now been a third-year tradesperson. On the balance of probabilities, I accept that as a registered plumber, the plaintiff, but for his injury, would have been able to earn an income in the order of $2,300.00 gross per week.
50I find that the plaintiff has a capacity to engage in suitable employment. To the present time, the plaintiff has not attempted any other alternative employment.
51The plaintiff would fail an application for loss of earning capacity certification for serious injury if his suitable employment capacity amounted to a gross income of greater than $1,380.00 per week.
What is the Plaintiff’s capacity for suitable employment?
Medical opinions
Dr Theo Vanderzeil, General Practitioner
52Dr Vanderzeil prepared two reports, dated 13 January 2022 and 15 May 2022 for the purposes of this proceeding, Dr Vanderzeil has been the plaintiff’s general practitioner both before and subsequent to the accident the subject of this proceeding.
53In his first report, Dr Vanderzeil stated that the plaintiff had an Adjustment Disorder with Depressed and Anxious Mood related to his work injury. He described the plaintiff as having a moderate limitation of his physical capacity due to his leg injury.[33] At the time of that report in January 2022, Dr Vanderzeil stated that the plaintiff was unfit to undertake any form of employment.[34] Dr Vanderzeil went on to state:
“… He will require psychological treatment (he has an upcoming appointment with his psychologist) and retraining as I feel he will not be able to return to his previous employment as a plumber. He could be suitable to work as a driver/operator of machinery.”[35]
[33]PCB 25
[34]PCB 26
[35]PCB 26
54In his report of May 2022, Dr Vanderzeil stated that when he last saw the plaintiff on 11 January 2022, the plaintiff’s leg condition had stabilised. He described it as swelling of his lower leg, and the plaintiff had a mild limp. Dr Vanderzeil noted that the plaintiff’s mood was significantly depressed, and he had low motivation and exhibited significant generalised anxiety.[36]
[36]PCB 27
55Dr Vanderzeil confirmed his earlier opinion that the plaintiff was incapacitated permanently for pre-injury duties as a plumber.[37] He went on to state that the plaintiff could, with appropriate training, work as a machine operator, and that the plaintiff could do this work on a full-time basis.
[37]PCB 28
Mr Raf Asaid, orthopaedic surgeon
56Mr Asaid prepared two reports, dated 20 December 2021 and 15 February 2023, for the purposes of this proceeding.
57In his last report, Mr Asaid stated as follows:
“… I do not believe that it is realistic that Mr. Schaefer will be able to return to his pre-injury role as a plumber. I note that he is only 23 years of age, and given his limited education and work experience, he is likely to require further education and retraining in order to find employment that may be deemed suitable given his injuries.”[38]
[38]PCB 39
Dr James Rowe, occupational physician
58Dr Rowe examined the plaintiff for medico-legal reporting purposes. He prepared a report dated 13 January 2022.
59Dr Rowe noted the plaintiff was unable to work due to the functional restrictions including:
· lifting;
· twisting;
· stooping; or
· pushing, pulling
· or walking for extended distances.[39]
[39]PCB 44
60In Dr Rowe’s opinion, the plaintiff could possibly work on a part-time basis in the future within his functional restrictions. He also noted that the plaintiff may be required to undergo further surgery to his ankle.
61Dr Rowe then stated as follows:
“I note he has already begun thinking about alternative long term career prospects. He should be referred to an experienced Vocational Counsellor for assistance developing his skill set and using those skills to explore long term sustainable suitable employment. This will not be a quick fix referral but the time and money it takes would be well worth expending on a young man who is after all only 22 years old.”[40]
[40]PCB 45
62Dr Rowe stated the plaintiff was unable to return to his pre-injury duties as a plumber.
Dr Joseph Slesenger, occupational physician
63Dr Slesenger examined the plaintiff on two separate occasions and prepared two reports, dated 27 June 2019 and 6 December 2019. Dr Slesenger saw the plaintiff on behalf of the defendant.
64Dr Slesenger advised the plaintiff against a returning to a work role as an earthmoving plant operator.[41] Dr Slesenger gave his opinion in respect of the proposed jobs set out in the vocational assessment report. He stated as follows:
[41]DCB 39
“I have been provided with a further Vocational Assessment Report, noting recommendations for Mr Schaefer to return to work in the following roles:
· Light Packer: I advise a cautious approach to him returning to work in this role as the job demands require medium manual handling capacity which would require a lift limit in excess of 9 kg.
· Product Assembler (light): I am generally optimistic that he could return to work in this role with the restrictions outlined above; however, I recommend a job specific worksite assessment to ensure that manual handling tasks meet his capacity limits.
· Call Centre Operator: I am of the opinion that he could return to work in this role with the restrictions outlined above.
· Customer Service Representative: I am of the opinion that he could return to work in this role with the restrictions outlined above.
· Car Detailer: I advise against him returning to work in this role as the job demands are likely to lie outside his capacity limits.”[42]
[42]DCB 44
65It was clear from Dr Slesenger’s report that he had some reservations about the plaintiff’s capacity to engage in the light packer, product assembler and car detailer jobs. The remaining jobs of call centre operator and customer service representative were not productive of an income greater than $1,380.00 gross per week.
Dr Mary Wyatt, occupational physician
66Dr Wyatt prepared a report dated 1 December 2022 on behalf of the defendant solicitors. Dr Wyatt’s report is the most up-to-date report in respect of medical examiners and the work capacity of the plaintiff.
67Dr Wyatt described the plaintiff as a pleasant, thinly framed twenty-three-year-old man. He walked with a limp, protecting his left leg.[43]
[43]DCB 50
68Dr Wyatt noted that the plaintiff had attempted to resume work on limited duties and then he said normal duties but indicated he struggled to cope with the physical demands of the job, which is understandable in the circumstances. There is a requirement for walking over uneven ground and squatting and awkward posture work in his role as a plumber.
69Dr Wyatt noted a history from the plaintiff that he had developed secondary mental ill health, which he said had improved a little bit, but he still described having low levels of motivation to re-engage with work and other life activities.[44]
[44]DCB 51
70Dr Wyatt noted that the plaintiff was taking Nurofen and Panadol only for pain relief.[45]
[45]DCB 51
71In Dr Wyatt’s opinion, she stated that there was a reasonable prospect that the plaintiff will require further surgery, though it is hard to be dogmatic about that.[46]
[46]DCB 52
72Dr Wyatt’s opinion was as follows:
“Mr Schaefer is permanently unfit to return to his pre-injury duties. He is permanently unfit for jobs that require him to be on his feet in a sustained fashion or to walk long distances, repeatedly walking over uneven ground, and repeatedly climbing steps or ladders or squatting.
In essence, Mr Schaefer requires a job where he is sitting for much of the day. This is not in line with his previous work experience.”[47]
[47]DCB 52
73Dr Wyatt then gave her opinion about the vocational assessment report from Nabenet which was dated 30 August 2022 which had set out five potential work options for the plaintiff. Dr Wyatt’s opinion was as follows:
“Medical Assembler. This role involves assembling small items, largely working at a bench. The work can be done sitting or standing, and there are short periods of walking required. This presents to be a suitable role for full-time hours of work.
Dispatch Clerk. The role is a computer-based role, sitting with occasional walking within the office and into the warehouse. This is a suitable role for full-time hours of work.
Customer Contact Officer. This role is in a call centre environment, dealing with customer queries.
This is again a seated job, and suitable for Mr Schaefer.
Weighbridge Operator. This role involves working in a small office at the entrance/exit of a quarry. The weighbridge operator needs to interact with truck drivers regularly. They move about the office to complete admin tasks. There is frequent standing when communicating with truck drivers.
As the amount of time the weighbridge operator would be standing over the course of a day is not clear, I do not recommend this role for Mr Schaefer. If the operator needs to be standing for most of the day, this would be problematic for Mr Schaefer’s ongoing foot and leg problem. If the role was not a busy one and it was only intermittent standing, then it would be suitable.
Pathology courier. This is a role that involves driving around Melbourne and collecting samples from doctors’ surgeries or hospitals. There is a requirement to load and unload eskies and transport to pathology labs. This role may require walking for longer periods than ideal for Mr Schaefer. If the run was confined to medical practices where there was easy access, the role may be suitable, but if collections from hospitals are needed, walking significant distances to access relevant pathology areas may require walking longer distances than ideal for Mr Schaefer and as such this role is not recommended.”[48]
[48]DCB 53
74The only role or potential work option that had a gross income greater than $1,380.00 per week was the role of a pathology courier. That income, according to the Nabenet report, was $1,656.40 gross per week.[49] Dr Wyatt did not give a resounding endorsement of the role as a pathology courier as being suitable for the plaintiff and I do not accept that it is a realistic suitable alternative employment for the plaintiff. The other four roles recommended by Nabenet in a report dated 30 August 2022 do not achieve an income greater than $1,380.00 gross per week.
[49]DCB 77
75Dr Wyatt’s opinion extended as follows:
“There does not appear to be a focus on re engaging with work, Mr Schaefer refers to having low motivation which he attributes to his mental state. He indicated waiting for his claim to be finalised at this stage, and this seems to be having an impact on return to work in suitable employment.”[50]
[50]DCB 54
Ms Emma Stephenson, occupational therapist
76Ms Stephenson prepared a report dated 30 August 2022 known as the Nabenet report. This report extends for some sixteen pages.
77In summary form, the Nabenet recommendations are as follows:
Proposed Occupation Gross Income Reference Medical assembler $1,115.00 DCB 72 Despatch clerk $1,223.00 DCB 74 Customer contact officer $1,026.00 DCB 75 Weighbridge operator $1,140.00 DCB 76 Pathology courier $1,656.40 DCB 77 78I note for completeness that the roles of medical assembler, despatch clerk, weighbridge operator and pathology courier do not have vacancies presently or, alternatively, are not hiring staff. The only role recommended by Nabenet in the report where there was a prospective job was the customer contact officer. This role has a gross income of $1,026.00 per week. The plaintiff would require considerable upskilling in order to perform this role, given the occupational requirements of the role in question.
79I find that the plaintiff would be able to perform a role similar to a customer contact officer or a despatch clerk after considerable retraining and support. Neither of these roles, on the evidence before this Court, would produce an income greater than approximately $1,200.00 gross per week.
80On the basis of the evidence in this case, I find that the plaintiff has satisfied that he has a permanent loss of earning capacity greater than 40 per cent as a result of the injury to his left leg which occurred on 3 October 2017.
Order
81I grant leave to the plaintiff to bring proceedings to recover damages for pain and suffering and loss of earning capacity as a result of the physical injury to his lower left leg and disfigurement arising from the injury on 3 October 2017.
82The plaintiff’s application for pain and suffering and loss of earning capacity in respect of the psychological or psychiatric injury is dismissed.
83I will hear the parties on costs.
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