Schulz v Bluescope Steel Limited
[2023] VCC 370
•16 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-00006
| MARK SCHULZ | Plaintiff |
| v | |
| BLUESCOPE STEEL LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 February 2023 | |
DATE OF JUDGMENT: | 16 March 2023 | |
CASE MAY BE CITED AS: | Schulz v Bluescope Steel Limited | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 370 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – loss of income earning capacity – date of injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Hettiarachchi v Transport Accident Commission [2023] VSCA 27
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Storey with Mr P Santamaria | Maurice Blackburn Lawyers |
| For the Defendant | Mr P Bourke | Hall & Wilcox |
HER HONOUR:
1In 1987, at the age of about twenty-three, Mark Schulz commenced working as an ironworker at the Bluescope Steel Limited (“Bluescope”) industrial complex in Hastings, Victoria. He was to work for Bluescope for the next thirty-four years.
2From around 2000 until August 2014, one of Mr Schulz’s main duties was working on the coil temper mill roller machine (“CTM roller”). This required Mr Schulz to track a moving piece of flat steel through the CTM roller as it was tempered, repeatedly rotating his head to the left. At one point in this process, Mr Schulz had to look back over his shoulder, holding his head in a fixed position, while watching the finished steel. Mr Schulz would repeat these movements hundreds of times over the course of a twelve-hour shift.
3From as early as 2000, Mr Schulz reported intermittent issues with neck pain and stiffness after working long shifts on the CTM roller. However, he continued his normal duties, including work on the CTM roller.
4On 8 August 2014, while working on the CTM roller and rotating his head to the left, Mr Schulz experienced a popping sensation in his neck, followed by severe pain (“the incident”).
5Since the incident, Mr Schulz has experienced ongoing neck pain and other related symptoms, such as shoulder and back pain, headaches, and numbness in the fourth and fifth fingers of his left hand. As a result, he:
(a) underwent bilateral C5-6 medial branch nerve blocks on 5 February 2016;
(b) underwent bilateral C5-6 radiofrequency neurotomies on 22 March 2016;
(c) underwent bilateral C4-5 and C5-6 radiofrequency neurotomies on 24 May 2016;
(d) underwent further radiofrequency treatment at C4-5 and C5-6 on 3 March 2017;
(e) underwent spinal surgery in the form of a C6-7 decompression and anterior fusion on 14 November 2017;
(f) completed a pain management course in about October 2020;
(g) underwent left greater occipital nerve, third occipital nerve, lesser occipital nerve and C3 medial branch blocks on 10 August 2021;
(h) underwent further occipital nerve blocks in September 2021;
(i) underwent further occipital nerve blocks on March 2022;
(j) undertook regular physiotherapy treatment, as well as chiropractic treatment and massage; and
(k) takes significant pain medication, including Lyrica, Norgesic and Baclofen.
6Mr Schulz contends that he has suffered an impairment of his spine which is serious as to both its pain and suffering and loss of income-earning capacity consequences. Accordingly, he seeks leave to bring proceedings for pain and suffering and economic loss damages under s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRCA”).
7Bluescope conceded that Mr Schulz had suffered a serious injury with respect to pain and suffering consequences. Accordingly, Mr Schulz is entitled to leave to sue for damages for pain and suffering under s335(2)(d) of the WIRCA.[1] However, Bluescope claimed that:
[1] See also s335(3) of the WIRCA.
(a) Mr Schulz’s injury arose out of the discrete incident on 8 August 2014, not from the entire course of Mr Schulz’s employment (which did not conclude until January 2021). As I will explain in more detail later, Bluescope submitted this had relevance to the date of injury for the purpose of calculating Mr Schulz’s without injury earning capacity;
(b) Mr Schulz’s evidence that he was not capable of employment should not be accepted given he had withheld relevant information and given misleading evidence about his capacities, particularly in relation to fishing trips;
(c) Mr Schulz had demonstrated capacity to work in full-time employment, notwithstanding his injury, given he continued to be employed full time by Bluescope after the incident, from August 2014 to January 2021;
(d) Mr Schulz could earn more than 60 per cent of his without injury earning capacity by performing any of the following roles on a full-time basis:
(i)community worker;
(ii)disability services officer;
(iii)youth worker;
(iv)road traffic controller;
(v)road safety camera operator;
(vi)production clerk;
(vii)information officer;
(viii)customer services assistant; and
(ix)OH&S officer;
(e) accordingly, the Court should not be satisfied that Mr Schulz had suffered a serious injury with respect to loss of earning capacity consequences and should not grant him leave to bring proceedings for economic loss damages.
What is the date of injury for the purposes of s325(2)(f)(ii) of the WIRCA?
8To establish that he has a serious injury with respect to loss of income-earning capacity consequences, Mr Schulz must demonstrate:
(a) that the loss of earning capacity consequence of the impairment of his spine is, when judged against other cases in the range of possible impairments or losses of a body function, “fairly described as being more than significant or marked, and as being at least very considerable”;[2]
(b) that he has suffered a current loss of earning capacity of 40 per cent or more;[3] and
(c) that he will, after the date of the hearing, continue, permanently, to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[4]
[2] Definition of serious injury in s325(1) of the WIRCA.
[3] Section 325(2)(e)(i) of the WIRCA.
[4] Section 325(2)(e)(ii) of the WIRCA.
9Section 325(2)(f) provides a statutory formula for calculating current loss of earning capacity. Under this formula, the Court is required to compare:
(a) the gross income that Mr Schulz was earning, or was capable of earning, or would have earned, or would have been capable of earning, during that part of the period within three years before and three years after the injury “as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earning capacity”); and
(b) Mr Schulz’s gross income that he is earning (whether in suitable employment or not), or is capable of earning in suitable employment (“with injury earning capacity”).
10Bluescope contended that Mr Schulz’s injury arose as a result of the incident on 8 August 2014, rather than as a result of the entire course of his employment.[5] Bluescope contended that the date of injury for the purposes of the statutory formula was, therefore, 8 August 2014. Mr Schulz, on the other hand, contended that his injury arose out of the entire course of his employment and, accordingly, the date of injury should be the last day of his employment with Bluescope, that is, in January 2021.
[5] Although Bluescope accepted that Mr Schulz could claim to have suffered a “course of employment” injury when bringing proceedings for damages, even if, for the purposes of this proceeding, the Court found that his injury arose out of the incident on 8 August 2014.
11As will be seen from the statutory formula described above, the available gross income figures for without injury earning capacity are delineated by the period from three years before and three years after the date of injury. No indexing is permitted by the statutory formula. If, as contended by Bluescope, the date of injury was August 2014, the Court may only look to income for the period from 2011 to 2017 when determining the without injury earning capacity. On the other hand, if the date of injury was January 2021, the Court may consider income (including potential income) up to the present date.
12Bluescope placed particular reliance upon a medical panel decision and reasons dated 19 September 2016, in which the Medical Panel concluded that Mr Schulz’s “residual neck dysfunction” was materially contributed to by injuries sustained on 8 August 2014, but not materially contributed to by injuries sustained throughout the course of Mr Schulz’s employment.
13Against this:
(a) Mr Schulz gave evidence of reporting intermittent neck pain after using the CTM roller on and from around the year 2000;
(b) Mr Schulz’s treating general practitioner (“GP”), Dr Chanaka Amarasinghe diagnosed “chronic degeneration probably due to chronic repetitive strain injury, exacerbated by the injury on 8th August 2014”;[6]
[6]Plaintiff’s Court Book (“PCB”) 40
(c) Mr Szhulz’s treating physiotherapist noted that:
“… highly repetitive tasks can accelerate and worsen the amount of spinal degeneration.
As Mark has worked at Bluescope Steel for 35 years performing tasks of a highly repetitive nature including being a machine operator for a period of 12-15 years in which he had to feed metal strips into a tension reel and having to look up and in one direction up to 900 times per shift. It is logical to conclude that this level of repetition has had a significant contribution to his current condition.”[7]
[7]PCB 44
(d) Mr Schulz’s treating general practitioner, Dr Astrid Richards, records that:
“In my opinion this injury likely occurred as a result of the nature of Mr Schulz’s employment, which involves repetitive neck movements, awkward positioning of the head and neck and lifting heavy loads … It is likely that many years of working under these conditions caused repetitive strain to Mr Schulz’s neck and was the causative factor to his C3/4 degeneration.”[8]
[8]PCB 46
(e) Dr Hazem Akil, medico-legal neurosurgeon, records that:
“The type of activities that [Mr Schulz] used to perform at work where he used to use his arms with his head in a flexed position and rotate his head towards one side or the other on a repetitive way is the main contributing factor to his current condition.”[9]
(f) Dr James Rowe, medico-legal specialist occupational physician, records that:
“I am satisfied that the nature of the work he performed at BlueScope, (sic) over many years, is a significant contributing factor to the development of his neck injury and to his ongoing state of disability.”[10]
[9]PCB 51
[10]PCB 68
14The Medical Panel Decision and Reasons are admissible, but not binding, upon me. I prefer the views of the treating and medico-legal practitioners extracted above to those of the Medical Panel. While it is undeniable that there was a dramatic worsening of Mr Schulz’s symptoms on 8 August 2014, there is nothing to suggest Mr Schulz did anything other than perform his usual duties at the CTM roller on that date. I accept it is likely that it was the repetitive performance of neck movements over many years that caused the injury which manifested in a dramatic worsening of the symptoms experienced on 8 August 2014.
15Having said that, I am unable to find any persuasive evidence that Mr Schulz suffered further injury after 8 August 2014. Mr Schulz’s duties dramatically changed after the 8 August 2014 incident ꟷ he did not work on the CTM roller again. There was evidence that his symptoms worsened in 2018 (while still employed by Bluescope). But there was also evidence that his injury worsened in 2022 (after he ceased employment with Bluescope). There is no evidence that, after 8 August 2014, he continued to perform the types of repetitive neck movements relied upon by the experts quoted above as providing a pathway to injury.
16On the evidence before me, it is more likely than not that Mr Schulz’s injury was suffered over the course of Mr Schulz’s employment up to and including 8 August 2014, rather than as a result of a discrete incident on 8 August 2014. Regardless, I accept Bluescope’s submission that the most appropriate date of injury to use for the purposes of calculating without injury earning capacity is 8 August 2014.
What is Mr Schulz’s without injury earning capacity?
17Section 325(2)(f)(ii) provides that:
“…a worker's loss of earning capacity is to be measured by comparing—
…
(ii) the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;”
18The parties agreed that, in the relevant period, Mr Schulz earned the following amounts:
FINANCIAL YEAR ENDING EARNINGS
Year
Amount
2012
$71,070
2013
$77,671
2014
$98,655
2015
$88,946
2016
$98,074
2017
$116,632
19The statutory formula requires the selection of a gross income, expressed as an annual rate, from a part of the relevant period which “most fairly reflects the worker’s earning capacity had the injury not occurred”.
20Bluescope submitted that the Court should adopt the rate Mr Schulz was paid in the year he was injured ($98,655). Alternatively, Bluescope submitted that the rate Mr Schulz was paid in 2016, or an average of the six years should be utilised. It submitted that this would be fair to Bluescope as well as Mr Schulz and the Court ought not simply select the highest rate in the window.
21The statutory formula expressly contemplates and permits the selection of a rate from both the three years pre-injury and the three years post-injury. The rate Mr Schulz was paid when he was injured is only one of the available rates. The rate selected must be the rate which most fairly reflects Mr Schulz’s earning capacity had the injury not occurred. Of the rates available to the Court under the statutory formula, the rate Mr Schulz earned in 2017 is the most proximate to the current year, and so provides the fairest reflection of Mr Schulz’s current without injury earning capacity. I accept that Mr Schulz performed significant overtime in this year, and that this is likely to have increased his income. However, it is reasonable to assume that he would have performed a similar amount of overtime, if not more, if not injured. Indeed, it is reasonable to assume that, if anything, Mr Schulz’s value to Bluescope as an employee would have been greater had he not been injured, rather than less.
22I find that the available rate which most fairly Mr Schulz’s earning capacity had the injury not occurred is the rate he earned in 2017, namely $116,632 per annum.
Has Mr Schulz suffered a current loss of earning capacity of 40 per cent or more?
Credibility of Mr Schulz’s evidence
23Mr Schulz presented as a straightforward, stoic witness. He answered questions frankly and made appropriate admissions in relation to his capacities and activities. I observed no indication of any play-acting or exaggeration. To the contrary, Mr Schulz had the appearance of someone who was silently battling significant pain. I am conscious of the dangers of relying too heavily on observations of courtroom demeanour; however, my impression as to the genuineness of Mr Schulz’s experience of pain in the courtroom is consistent with observations of the medical experts whose reports were tendered in evidence. For example, Dr Ashish Jonathan, a consultant neurosurgeon retained by Bluescope, stated “[i]n my opinion Mr Schulz to the best of my knowledge was not exaggerating his symptoms or restrictions”;[11] and Dr Simone Scovell, an occupational physician retained by Bluescope, when asked if she considered that Mr Schulz exaggerated his symptoms and restrictions at any time during the examination, stated “[d]efinitely not”.[12]
[11] Defendant’s Amended Court Book (“DACB”) 25
[12] DACB 42
24Bluescope submitted that Mr Schulz’s affidavits “lacked detail” about the nature and duties of his employment with Bluescope after the incident; his work for family and friends; his attempts to retrain or seek work; and his skills and experience, and that this impacted upon the credibility or reliability of his evidence. However, assessments performed by occupational therapist, Ms Suzanne George, showed that Mr Schulz had middle-primary school level reading and spelling.[13] He was clearly a man of few words. Although Mr Schulz bears the onus of establishing his case, I do not accept that there was any deliberate withholding of relevant evidence by Mr Schulz, nor that the lack of detail in his written affidavits impacts upon the credibility or reliability of the evidence which he did give.
[13] PCB 74
25In Mr Schulz’s first affidavit, sworn on 25 August 2021, he stated:
“Fishing – I have always been passionate about fishing. Prior to my injuries, I would go fishing 4 times a week and could be out on the water for 12 hours on a weekend. I would take fishing trips out to Portland with mates. Nowadays I can only manage short local trips. I still try to take the boat out a couple of times a month, but I need extra medication to get through the day. It is not as enjoyable as what it used to be.”[14]
[14]First affidavit at paragraph [30](n)(i)], PCB 15
26It was submitted that Mr Schulz had crafted this paragraph to give the impression he could no longer take fishing trips to Portland with his mates when, in fact, he had taken at least one fishing trip to Portland in May or July 2021, and another in 2022.
27The question of whether Mr Schulz goes on fishing trips, and the extent to which he can participate in activities such as game fishing while on board a boat, is not directly relevant to Mr Schulz’s with injury earning capacity. There is not sufficient evidence before the Court for an inference to be drawn that Mr Schulz’s capacity to go on fishing trips demonstrates a capacity for employment. However, it was put that Mr Schulz’s evidence in relation to fishing trips demonstrated a generalisable lack of credibility and reliability, which undermined the credibility and reliability of his evidence as to his capacity for employment.
28Mr Schulz was cross-examined at some length about his fishing trips to Portland. He recalled going on a fishing trip to Portland in 2022. He lacked a clear recollection of if, and when he went to Portland in 2021. However, when asked, admitted that it was possible he had gone to Portland in 2021. It was put to him that there were references to two fishing trips in the clinical notes in 2021 – one in May 2021 and one in July 2021. He maintained that it was possible he may have gone to Portland once in that year, however, was adamant he had not gone more than once. I accept this evidence. Care must be taken with relying too heavily on clinical notes.[15] In the present case, the clinical notes may be explained either because the May 2021 fishing trip was cancelled due to a COVID-19 lockdown, or because the “fishing trip” described in July 2021 was, in fact, no more than a short fishing trip out of Westernport, of the kind which Mr Schulz readily admitted still taking.
[15] Hettiarachchi v Transport Accident Commission [2023] VSCA 27 at paragraphs [57]-[58]
29Mr Schulz explained that his trips to Portland (post-incident) involved towing the boat to Portland and then boat trips from there over the next few days. He also explained that, if the weather conditions were too rough, he was unable to go.
30Paragraph 30(n)(i) of Mr Schulz’s first affidavit may give the impression that Mr Schulz is no longer able to take fishing trips to Portland with his mates. However, having regard to Mr Schulz’s limited literacy skills, I am not prepared to infer that this was due to a deliberate attempt to mislead by Mr Schulz. Nor am I prepared to infer that any lack of reliability in his evidence in this particular paragraph is generalisable to his other evidence, particularly his oral evidence.
31Finally, Bluescope submitted that Mr Schulz had a demonstrated capacity for full-time employment in view of his ongoing employment with Bluescope from the date of the incident until January 2021.
32I accept that (with the exception of a return-to-work transition period and time off for surgery) Mr Schulz worked full time for Bluescope from the date of the incident until January 2021. This included the performance of twelve-hour shifts and significant overtime.
33However, after the incident, Mr Schulz was allocated special light duties. He described it as like a “sheltered workshop” and gave evidence of:
(a) relying upon support from his co-workers with physical tasks;[16]
(b) having significant periods of downtime – up to one or two hours – when waiting for the “line” to proceed;[17] and
(c) being able to take a break whenever he needed (up to eight twenty-minute breaks per day on a bad day).[18]
I accept this evidence.
[16] First affidavit at paragraph [25], PCB4
[17] Transcript (“T”) 35, Lines (“L”) 27-28
[18] T47, L10-13; T69, L13-17; T73, L19-T74,L19
34That the role performed by Mr Schulz for Bluescope in the years following the incident was not comparable to employment which could be obtained on the open market, is confirmed by the fact that, in January 2021, Bluescope terminated Mr Schulz’s employment. The letter advising Mr Schulz of his employment stated as follows:
“Considering the above and having regard to the nature of your role, the fact that you work in a heavy industry environment and the potential for future injury, we are regrettably of the opinion that your current physical restrictions creates a major risk to your health and safety and that you are not fit for usual duties in the workplace.
Ongoing employment
In addition, it is our view that there are no reasonable adjustments we could make to your role to a level where you would be of no risk to yourself, we are of the view that you are unable to safely perform the inherent requirements of your role.
…
On the basis of the above, we maintain the view that you will not be able to perform the inherent requirements of the role of a Process Operator without risk of further exacerbating your condition and we have met with you today to confirm that we are left with no alternative than to terminate your employment effective immediately.”[19]
[19]Plaintiff’s Supplementary Court Book (“PSCB”) 16-17
35The role with Bluescope is no longer available to Mr Schulz – Bluescope has terminated his employment. I have found that the role was not comparable to employment which is available on the open market. Mr Schulz’s performance of this role does not undermine his evidence as to his current income earning capacity.
36In any event, I also accept Mr Schulz’s evidence that his symptoms have worsened since 2021.[20] Accordingly, his capacity to perform work duties in the period from 2014 to 2021 is not a reliable indicator of his current income earning capacity.
[20] T68, L14-24
37Having considered all of the above matters, I accept Mr Schulz’s evidence as to the symptoms and physical restrictions imposed upon him by the impairment of his spine; and the manner in which those symptoms and restrictions impact upon his capacity to perform work duties. I find that Mr Schulz is highly stoic and motivated to return to the workforce but has, to date, been unable to find suitable employment. I accept that:
(a) he feels pain in his neck virtually every day, which is more prominent on the left side. The pain can be “pinchy”, a dull ache or sharp pain;[21]
(b) he has frequent bad headaches (up to four times per week), which he finds exhausting;[22]
(c) he has difficulty gripping things with his left hand;[23]
(d) he suffers significant impacts on his capacity for sleep and is regularly sleep deprived;[24]
(e) any activity and repetitive motion aggravates his neck pain;[25]
(f) holding his head in a fixed position also aggravates his neck pain;[26]
(g) prolonged sitting, and particularly working at the computer, aggravates his neck pain;[27] and
(h) driving more than thirty minutes aggravates his neck pain.[28]
[21] First affidavit at paragraph [30(a)], PCB 14; second affidavit at paragraph [3], PCB 18
[22] First affidavit at paragraph [30(a)], PCB 14; second affidavit at paragraph [4], PCB 18
[23] First affidavit at paragraph [30(d)], PCB 14; second affidavit at paragraph [6], PCB 19
[24] First affidavit at paragraph [30(p)], PCB 16, second affidavit at paragraph [15], PCB 20
[25] First affidavit at paragraph [30(a)], PCB 14 ; second affidavit at paragraph [3], PCB 18
[26] Second affidavit at paragraph [3], PCB 18; T66, L6-15
[27] T54, L14-23; T55, L2-3; T66, L7-15; T73, L2-6
[28] Second affidavit at paragraph [14], PCB 20; T46, L17-19
Expert evidence on current income earning capacity
38Bluescope relied upon a number of roles as suitable employment for Mr Schulz, which were identified in:
(a) an IPAR Vocational Assessment Report, dated 27 April 2021;
(b) a Recovre Vocational Assessment Report, dated 29 April 2022; and
(c) a Recovre Vocational Assessment Report, dated 18 January 2023.
39Bluescope also relied upon:
(a) the opinion of medico-legal consultant neurosurgeon, Dr Jonathan, that Mr Schulz was capable of performing modified duties and, in particular, would be capable of performing roles as a packer, road traffic controller, road safety camera operator, engineering production worker, production clerk, community worker, disability services officer or youth worker; and
(b) the opinion of medico-legal occupational physician, Dr Scovell, that Mr Schulz was capable of performing full-time hours on modified duties and that he would specifically be suited for work as a road traffic controller (with support and ergonomic safety in lifting and carrying set-up and pack-up), road safety camera operator (if a worksite assessment was conducted to ensure Mr Schulz’s ergonomic safety in undertaking set-up and take-down) and production clerk.
40Mr Schulz relied principally on a report prepared by Ms George, an occupational therapist. She considered that, if a suitably-recognised occupation could be identified for Mr Schulz, he was likely to be capable of working for a maximum of four hours a day, three days per week.[29] However, having considered each of the roles proposed by IPAR and Recovre, she concluded that there was “no unrestricted recognised occupation for which he is likely to qualify”[30] that was suitable for Mr Schulz.
[29] PCB 80
[30] PCB 72
41Mr Schulz also relied upon the following more general comments in the expert reports:
(a) treating GP, Dr Shaun Zail, who stated that:
“I think [Mr Schulz] has some work capacity though it is limited. He is not able to perform pre injury activities, but he may be capable of modified activities and limited hours per day. He may be able to do light manual activities that did no (sic) involve neck flexion or rotation, he could do administrative work, perhaps sales / retail. Initially his hours would be limited as he gets fatigued after a few hours of work and would need to build up hours over time.”;[31]
[31]PCB 21
(b) occupational and environmental medicine specialist, Dr Kilner Brasier, who stated, “[w]ith respect to his work capacity at the moment, I would restrict his work to four hours per day”;[32]
(c) neurosurgeon, Dr Akil, who stated:
“Looking at his educational history and taking into consideration that Mr Shultz has been working with BlueScope (sic) Steel since 1987, I do not think that it is realistic to ask a 59-year-old man to re-train in a job that is completely alien to him and I therefore do not see him returning to the workforce any time soon.”;[33]
(d) specialist occupational physician, Dr Rowe, who stated:
“I would consider based on his neck injury alone, his vocational options are very limited and it is not likely that reliable and ongoing employment that meets his physical restrictions could be found.”;[34]
[32]PCB 33
[33]PCB 51
[34]PCB 70
(e) Mr Schulz’s own evidence that he could not work more than two hours per day.[35]
[35] T70, L18-20
42I prefer the expert evidence relied upon by Mr Schulz to the evidence of Dr Jonathan and Dr Scovell. I found the detailed and careful report of occupational therapist, Ms George, particularly compelling. I have noted that she is not a medical doctor. However, it seems to me that the practical expertise of an occupational therapist puts her in a good position to assess Mr Schulz’s capacity for employment, particularly bearing in mind that I have accepted his evidence in relation to his symptoms. Mr Schulz’s treating practitioners are also in a better position to assess the hours he is capable of working than Dr Jonathan and Dr Scovell, both of whom assessed Mr Schulz on a single occasion by videoconferencing. Dr Scovell also relied on Mr Schulz’s previous employment with Bluescope as demonstrating his capacity for full-time employment. As I have already found, this was not employment which was comparable to employment which could be obtained on the open market and, in any event, Mr Schulz has worsened since he ceased employment with Bluescope.
43I have accepted that Mr Schulz is highly stoic and motivated to work. Notwithstanding this, he has found himself unable to complete a Certificate II course online and notes significant increase in his pain with physical activity, prolonged sitting, prolonged driving and computer-based work. He also complains of sleep deprivation as a result of the interruption to his sleep due to neck pain.
44Pain is exhausting. It is distracting. Attracting and retaining work on the open market requires both reliability and efficiency in performance of tasks. In this context, it is not reasonable to expect Mr Schulz to work full time, given the significant daily neck pain and other symptoms that he experiences. In all the circumstances, I accept that Mr Schulz would not be capable of regularly working more than four hours per day.
45This suffices to satisfy the requirements of a current loss of earning capacity of 40 per cent or more. However, for completeness, I will consider each of the roles proposed by Bluescope as suitable employment for Mr Schulz.
Community worker
46This role requires at least a Certificate IV qualification for entry level,[36] if not a diploma[37] or bachelor degree[38]. I do not consider this is reasonable retraining for Mr Schulz bearing in mind:
(a) his low level of literacy skills, as assessed by Ms George;[39]
(b) his evidence that he was unable to complete an online Certificate II course, as computer use aggravates his neck pain; and
(c) his basic computer skills.
[36] DACB 76
[37] DACB 133
[38] PCB 83
[39] PCB 74
47The role also appears likely to require significant computer-based work which will aggravate Mr Schulz’s neck pain.
48I find this is not suitable employment for Mr Schulz.
49In any event, the median (not entry level) salary for this role is $1,328 per week[40]. I have found that Mr Schulz’s without injury earning capacity is $116,632 per annum, which equates to $2,242.92 per week. Sixty per cent of this amount is $1,345.75 per week. Even if Mr Schulz could perform this role full time and could earn the median wage in that role, he would still have suffered a loss of earning capacity of 40 per cent or more.
[40]DACB 74. Recovre puts forward an approximate salary figure of $1,363 for those aged forty-five plus, however I do not consider this would be a reasonable estimate of Mr Schulz’s salary in this role, given his lack of experience and clear unsuitability for more advanced qualifications, such as a diploma or bachelor degree.
Disability services officer
50This role requires a Certificate III or IV qualification. This is not reasonable retraining for Mr Schulz for the reasons given in relation to that of a community worker. The role also requires “mental skills”, such as assessment, computing and report writing.[41] This is not suitable employment for Mr Schulz in light of his limited literacy skills. In any event, the approximate salary guide reported for a disability services officer for a forty-five-plus year old, is $1,289 per week. Even if Mr Schulz could perform this role full time, he would still have suffered a loss of earning capacity of 40 per cent or more.
[41]DACB 135
Youth worker
51This role requires a Certificate III or IV qualification. This is not reasonable retraining for Mr Schulz for the reasons given in relation to the community worker role.
52The role also requires “mental skills”, such as assessment, computing and report writing.[42] This is not suitable employment for Mr Schulz in light of his limited literacy skills. In any event, the approximate salary guide reported for a disability services officer for a forty-five-plus year old is $1,321 per week. Even if Mr Schulz could perform this role full time, he would still have suffered a loss of earning capacity of 40 per cent or more.
[42] DACB 137
Road traffic controller
53Dr Scovell’s endorsement of this as a role which was suitable for Mr Schulz was qualified by a requirement that he had support and ergonomic safety in lifting and carrying the set-up and pack-up of the roadside environment. I accept Ms George’s evidence that, in fact, this role is likely to require driving for prolonged periods and lifting and carrying moderate to heavy signs, bollards and devices, which would be beyond Mr Schulz’s physical capacities.
54In any event, the approximate salary guide reported for a road traffic controller for a forty-five-plus year old is $1,233 per week. Even if Mr Schulz could perform this role full time, he would still have suffered a loss of earning capacity of 40 per cent or more.
Road safety camera operator
55Dr Scovell’s endorsement of this as a role which is suitable for Mr Schulz was qualified by a requirement that he had support and ergonomic safety in lifting and carrying the set-up and pack-up of the roadside environment. I accept Ms George’s evidence that, in fact, this role is likely to require driving for prolonged periods, and that it would also require prolonged sitting (with few opportunities to break), frequent neck movements and data entry into a laptop, which would be beyond Mr Schulz’s physical capacities.
56The Recovre Assessment Report, dated 29 April 2022, states that a road safety camera operator is classified under “[i]nspectors and regulatory officers”. The approximate salary for an “inspector and regulatory officer” for a person who is forty-five-plus is stated, by Recovre, to be $1,560.[43] However, this is not the likely salary specifically for a road safety camera operator. Recovre conducted a worksite assessment of an actual role as a road safety camera operator with a specified salary of $25 to $33.34 per hour, depending upon experience. Even at the highest rate in this band, the weekly salary on a forty-hour week would be $1,333.60. Even if Mr Schulz could perform this role full time, he would still have suffered a loss of earning capacity of 40 per cent or more.
[43] DACB 101
Production clerk
57This role requires significant computer-based tasks, including data entry. I accept Ms George’s evidence that this would not be suitable employment for Mr Schulz, having regard both to his limited literacy and computer skills, and his physical limitations.
58According to the Recovre report dated 29 April 2022, this role requires a minimum of an HSC/senior-secondary education.[44] Mr Schulz did not complete Year 10 and was assessed by Ms George as being able to read and spell at middle-primary school level. This is not suitable employment for Mr Schulz.
[44] DACB 103
59Further, the role of production clerk, which was subject to a worksite assessment by Recovre, had a maximum salary of $853.40 per week for a thirty-eight hour week. This is less than 60 per cent of Mr Schulz’s without injury earnings.
Information officer
60This role requires constant sitting at a workstation and computerised data entry. I accept the evidence of Ms George that it would not be suitable employment for Mr Schulz, having regard both to his limited literacy and computer skills, and his physical limitations.
61In any event, the expected wage for this role on a full-time basis is $1,192, according to the IPAR report dated 27 April 2021.[45] This is less than 60 per cent of Mr Schulz’s without injury earnings.
[45] DACB 78
Customer services assistant
62This role requires constant sitting at a workstation and computerised data entry. I accept the evidence of Ms George that it would not be suitable employment for Mr Schulz, having regard both to his limited literacy and computer skills, and his physical limitations.
63In any event, the expected wage for this role on a full-time basis is $1,192, according to the IPAR report dated 27 April 2021.[46] This is less than 60 per cent of Mr Schulz’s without injury earnings.
[46] DACB 80
Occupational Health and Safety officer
64This role requires completion of at least a Certificate IV in Work Health and Safety. According to Ms George:
“The ANZSCO states that an Occupational Health and Safety Officer develops, implements and evaluates risk management policies and programs, trains employees in occupational health and safety procedures, monitors and audits the workplace, and records and investigates incidents to ensure safe and healthy working conditions. This occupation has a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).”[47]
[47]PCB 86
65I do not consider that this is reasonable retraining for Mr Schulz for the reasons given in relation to a community worker.
66I also accept the evidence of Ms George that this is not a suitable role for Mr Schulz given his limited literacy skills.
Conclusion on current loss of earning capacity
67Mr Schulz is not completely incapacitated from employment. He will work again. His motivation, maturity and experience is likely to be of value to the right employer, notwithstanding his limited literacy skills and physical restrictions. However, I am satisfied that Mr Schulz cannot work more than four hours per day in any occupation on a regular basis. I am also satisfied that none of the roles relied upon by the defendant are suitable employment.
68I am satisfied that Mr Schulz has a current loss of earning capacity of 40 per cent or more.
Will Mr Schulz continue permanently to have a loss of earning capacity of 40 per cent or more?
69None of the medical experts predict a significant improvement in Mr Schulz’s condition. To the contrary, the preponderance of opinion is that Mr Schulz’s prognosis for significant improvement is poor.[48] I am satisfied that Mr Schulz will continue permanently to have a loss of earning capacity of 40 per cent or more.
[48] Eg: Dr Gavin Weekes’ report, PCB 29; Dr Akil’s report, PCB 51 and Dr Rowe’s report, PCB 70
Does Mr Schulz satisfy the narrative test with respect to loss of earning capacity consequences?
70In addition to satisfying the statutory formulae in s325(2)(e) and s325(2)(f), Mr Schulz must also establish that the loss of earning capacity consequence of the impairment of his spine can be, when judged against other cases in the possible impairments or losses of a body function, “fairly described as being more than significant or marked, and as being at least very considerable”.[49]
[49] Definition of “serious injury” in s325(1) of the WIRCA.
71Mr Schulz has gone from being able to earn a comfortable and reliable income at Bluescope to being able to work limited hours with significant physical restrictions, which greatly narrow his available employment options. It is likely that these restrictions are permanent. I am satisfied that this is a loss of earning capacity consequence which may fairly be described as being “more than significant or marked” and “at least very considerable”.
Conclusion
72I will grant Mr Schulz leave to bring proceedings for damages for both pain and suffering and economic loss and hear from the parties on the question of costs.
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