Sepe v Victorian WorkCover Authority
[2024] VCC 366
•27 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-01379
| LOLITA SEPE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16 and 19 February 2024 | |
DATE OF JUDGMENT: | 27 March 2024 | |
CASE MAY BE CITED AS: | Sepe v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 366 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application - aggravation of spinal injury – plaintiff’s credibility and reliability – whether plaintiff had retained sufficient earning capacity to meet threshold – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer S.C. with Mr C Sidebottom | Maurice Blackburn |
| For the Defendant | Ms S Manova | Lander & Rogers |
HER HONOUR:
1Ms Sepe seeks leave to bring a common law proceeding pursuant to s325(1)(a) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRCA”) for pain and suffering and pursuant to s325(1)(c) for pecuniary loss damages.
2The injury she claims is to her back, specifically to the lumbar spine, the intervertebral discs at L2-3, L3-4, L4-5 and L5-S1, and associated musculoligamentous structures.
3It is not in dispute that Ms Sepe has suffered an aggravation of degeneration to her lumbar spine in the course of her employment and as a result of specific incidents during her employment.[1]
[1]Transcript (“T”) 2, Lines (“L”) 16-22
The issues
4Ms Sepe must establish that she has an injury that is a permanent serious impairment or loss of a body function that, when judged by comparison with other cases in the range of possible impairments, is fairly described as being “more than ‘significant’ or ‘marked’” to the extent of being “at least very considerable”.[2]
[2]Humphries & Anor v Poljak [1992] 2 VR 129
5She must also meet the legislative test set out at s325(2) of the WIRCA, which requires her to establish that, as a consequence of the injury, she has a loss of earning capacity of 40 per cent or more, measured by comparing the gross income she is capable of earning in suitable employment with the gross income that most fairly reflects her earning capacity had the injury not occurred.
6There was no real dispute between the parties as to the nature of Ms Sepe’s injury and the medical treatment she received, nor that she was unable to resume her pre-injury duties.
7The dispute in this case was whether Ms Sepe had retained a capacity for suitable employment that would mean she was capable of earning at least 60 per cent of her without injury earnings.
8If Ms Sepe has sustained a loss of earning capacity of at least 40 per cent of her without injury earning capacity, she is also entitled to pursue a claim for damages for pain and suffering.[3]
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
9However, if I am not satisfied that she has sustained the necessary loss of earning capacity, the defendant, the Victorian WorkCover Authority (“VWA”), contends that Ms Sepe’s pain and suffering consequences do not meet that test and that she ought be refused leave to proceed in relation to both pain and suffering and loss of earning capacity.
10Ms Sepe was challenged on her current work capacity and her credit and reliability. The VWA contends that Ms Sepe is not reliable and I cannot accept her account of her current work capacity.
11The issues are:
(a) whether Ms Sepe meets the test for pecuniary loss, having regard to:
(i)her credit generally and in particular in relation to the documentary evidence about her current employment;
(ii)her current work capacity.
(b) whether, if Ms Sepe does not meet the test for pecuniary loss, she nevertheless meets the test for pain and suffering consequences.
12For the reasons set out below, I am satisfied that Ms Sepe has a serious injury and has a loss of earning capacity that meets the test.
13Accordingly, she will be granted leave to commence common law proceedings for pain and suffering and loss of earning capacity.
Background to injury
14Ms Sepe was born in the Philippines in 1970. She completed the equivalent of Year 12 at school and commenced a degree in psychology, which she did not complete. She became pregnant at about the age of eighteen, and while pregnant undertook a six-month secretarial course.
15She gave birth to her son in 1989.
16She then worked in retail and hospitality jobs until moving to Australia in 1998. She worked in various hospitality jobs for many years. She had time off work when her daughter was born in 2005 and when her second son was born in 2010. She subsequently resumed hospitality work for about two years.
17In 2014, she commenced work with Sutton Park (“the employer”) as a cleaner. She also did laundry. She regularly worked 7.00am to 2.00pm, but also worked overtime.
18The work involved mopping and dusting; cleaning toilets, sinks and showers; vacuuming carpets, emptying bins, loading and unloading bedding, clothing and towels into the washing machine and dryer; and folding laundry. Ms Sepe describes the work as physical work that had to be done quickly.
19In November 2014, she attended her general practitioner for lower back pain after lifting a bucket of water[4] and was referred for an x-ray, which was normal, and showed no visible spondylolysis, fractures or reduction in disc space heights. She does not believe she had any time off work arising from that incident.
[4]General practitioner notes records she was lifting a bucket of rice. She says this is incorrect and she was lifting a bucket of water.
20In January 2016, she again attended her general practitioner for mid-back pain after mopping floors at work. She says she commonly had aches and pains in her back from work, but only saw her doctor when it was “unusually bad”.[5]
[5]Plaintiff’s affidavit, sworn 11 September 2023, paragraph [9] at Plaintiff’s Court Book (“PCB”) 9
21In December 2016, she attended her doctor for back pain and had a day or two off work. In 2017 and 2018 she attended her doctor with shoulder pain. She had a short period off work and some physiotherapy. She returned on light duties, but after two or three months was able to resume normal duties.
22In June 2019, she attended her doctor and obtained a medical certificate. She returned on 15 July 2019 with worsening pain, which had spread to her left leg. She was given a certificate for time off work and referred for physiotherapy. On 22 July 2019, she submitted a claim for compensation. She remained off work until 26 August 2019. She returned on light duties. This involved light cleaning of rooms; primarily dusting and folding laundry. She started on limited hours and slowly increased.
23Ms Sepe says she wanted to get back to her normal hours, but it was taking longer than expected and she felt that other staff members were not happy that she was on light duties. She found this upsetting and stressful. She felt that being on Workcover was “too much trouble”. She tried to increase her work duties but found her back got worse.
24On 14 November 2019, she returned to her general practitioner, who prescribed Tramadol and gave her a certificate for a week off work. She had a CT scan on 15 November 2019, which showed a minor disc bulge at L4-5 and mild facet degeneration at L5-S1.
25She says her pain was significant and she was having trouble walking. She had pain in her back and left leg, and was using a stick to walk.
26Gradually her pain improved. The leg pain resolved and she wanted to return to work. She was told she could do light laundry work, and she resumed doing so in June 2020. She had intermittent flare-ups of pain which required time off work, but gradually increased her hours. However, she says she was criticised by her team leader, who felt she could do more than the doctors had assessed. This caused her stress and was very upsetting.[6]
[6](Ibid), paragraph [17] at PCB 12
27She was then given light dusting work to do, which required her to reach up high to dust. She found this aggravated her back pain and that was stressful. She went off work in November 2020 and had an MRI scan of her back on 14 December 2020, which showed mild disc bulges at L5-S1, L4-L5 and L3-L4, but no definite neural impingement.
28She resigned from her employment in December 2020 and her employment officially ended on 6 January 2021. She said:
“… I just could not cope anymore. I wanted to get better and get back to work. I was happy to do light duties and to increase my duties. Whatever I did was not enough for my supervisors. I could not stand it anymore. … .”[7]
[7](Ibid), paragraph [22] at PCB 13
Medical treatment and medical reports
29Ms Sepe has had medication and physiotherapy, but has not had any interventional treatment or surgery for her back pain. I have considered all the medical material provided and I summarise the medical material relied on, only to the extent required to explain these reasons.
Dr Kishore Parboo ꟷ general practitioner
30Ms Sepe has attended her general practitioner Dr Parboo since 2007. He considers she has lower back pain and her work duties, which involved bending, crouching and kneeling, materially contributed to her condition.[8]
[8]Report dated 7 December 2021 at PCB 36
31In his report of 8 August 2023, Dr Parboo noted that she has daily pain, is unable to drive or walk for long distances, and has limited bending capacity and reduced lifting capacity, which inhibit her capacity for work. He notes that she is “still trying to complete” her beauty therapy course and says that, if she completes it, she will still face limitations on her work capacity. He suggests an “initial trial” of four-hour shifts, three days a week, but notes that this may require occupational therapy assessment.[9]
[9]PCB 40
Dr Michael Wong ꟷ neurosurgeon and spinal surgeon
32Dr Wong saw Ms Sepe on 1 February 2021 for assessment. He reviewed her MRI scan of December 2020 and diagnosed a minor lumbar spondylosis with disc degeneration, but no significant neural compression.
33He did not recommend surgery and outlined her non-surgical treatment options, including analgesic medication and physiotherapy. He arranged an L4-5 epidural injection to improve the back pain, but Ms Sepe did not pursue this option.[10]
[10]PCB 33
Dr Hazem Akil – neurosurgeon
34Dr Akil assessed Ms Sepe for medico-legal purposes on 17 July 2023. He diagnosed an aggravation of lumbar spondylosis, which he considered was contributed to by her work duties.
35He considered she could perform work that allowed her to alternate between sitting and standing every thirty to sixty minutes, and did not involve bending, lifting more than 5 kilograms, or pulling or pushing objects heavier than 10 kilograms. He considered she had a work capacity up to twenty hours a week in suitable employment “in theory”. He did not consider beauty therapy work doing eyelashes or work as a hairdresser was suitable. He did not consider that pain management was likely to change her restrictions.
Dr Dominic Yong – specialist occupational physician
36Dr Yong diagnosed a lower back soft-tissue injury and aggravation of a degenerative back condition. He considered the employment was a cause of her injury and that her symptoms were unlikely to resolve.
37He considered Ms Sepe did not have capacity for her pre-injury duties and has a capacity for work for six hours per week.[11]
[11]PCB 74”)
38He did not consider the jobs identified by the VWA were suitable employment for Ms Sepe, on the basis that she would not be able to perform them on a consistent, reliable or permanent basis without risk of re-injury.
Dr Joseph Slesenger – specialist occupational physician
39Dr Slesenger considered Ms Sepe had capacity for suitable employment four hours a day, four days a week, graduating back to pre-injury hours over twelve to fourteen weeks. He did not consider work as a commercial cleaner, food preparation worker, laundry worker or commercial housekeeper were suitable employment. He was “generally optimistic” that work as a beauty therapist would be suitable, depending on a job-specific worksite assessment. He considered she could continue her work as an eyelash technician and could increase her hours of work to her pre-injury employment. He considered she could also work in an “administrative role”.
Dr Louise Barberis – occupational physician
40Dr Barberis considered Ms Sepe was fit for suitable employment.[12] She considered work as a beauty therapist was suitable employment and that work in food preparation may be suitable, depending on shifts and ability to move and have seated breaks. Work as a commercial housekeeper was likely to be unsuitable due to the need to vacuum and mop. She considered commercial cleaning and laundry work as unsuitable.[13]
[12]Defendant’s Amended Court Book (“DACB”) 62
[13]DACB 63
41She noted retail assistant, hairdressing apprentice, pharmacy assistant, front of house receptionist, retail sales assistant, general clerk, hotel receptionist, customer service officer, and sales assistance roles were all suitable employment.[14]
[14]DACB 65
Mr Michael Dooley ꟷ orthopaedic surgeon
42Mr Dooley considered Ms Sepe had the physical capacity “[f]rom an orthopaedic point of view only” to carry out the duties of an eyelash technician or a beauty therapist, provided she was able to alter her posture as required,[15]. He considered she could work as a general clerk, or a hotel or motel receptionist. He considered she had potential to increase her working hours “towards full-time”, but it would be necessary to “wait and see” how she coped.[16] He considered she could work in food preparation.[17] Although, in his report he says she also has capacity to carry out the duties of a sales assistant, he goes on to say he does not believe that she would be able to “easily lift stock, set up displays etc”.[18] He considered she did not have capacity to work as a checkout operator, as the role usually involves manoeuvring and lifting heavy goods.[19] He considered she did not have the capacity to work as a commercial cleaner, laundry worker or commercial housekeeper.[20]
[15]DACB 69-70
[16]DACB 71
[17]DACB 69
[18]DACB 71
[19]Ibid
[20]DACB 68-69
Without injury earning capacity
43The parties agreed that Ms Sepe was earning $47,584 in the year prior to her injury.
44The parties agreed that, at the time of her injury, she was earning a base hourly rate of $22.17 and that this hourly rate increased to $24.55 within three years of her injury.
45Ms Sepe submits her without injury earning capacity, adjusted for the increase in hourly rates, would be $52,676 per year or $1,013 per week. Sixty per cent of that amount is $607.80 per week.
46The VWA submitted that the figure that “most fairly” represents Ms Sepe’s without injury earnings is $48,000, which is $923 a week. Sixty per cent of that amount is $553.84.
47Multiplying her hourly rate by her hours worked does not align with her income recorded on tax returns. An explanation may be that her hourly rate attracted penalty loading at times and that, at times, her work hours exceeded her normal hours.
48There was some discussion about what constituted her “normal hours”. She agreed that her normal hours were approximately seven hours a day, four days a week.[21] However, she also said that her earnings depended on what hours were available, and when more hours were available, she took them.[22]
[21]T39, L30 ꟷ T40, L4
[22]T146, L8-26
49It was not submitted by Ms Sepe that her “without injury” working capacity exceeded the actual hours she was working.
50Multiplying the hourly rate that the parties agree was the applicable rate three years after the injury, which is $24.55, by twenty-eight hours a week, gives a yearly salary of $35,744.80. This is well below Ms Sepe’s actual earnings in the years prior to her injury and well below the figure submitted by either party as the amount that most fairly represents her without injury earning capacity. The VWA’s proposed figure does not apply any real increase to her salary to account for any pay increase in that time, despite agreeing that there was such an increase. Ms Sepe’s proposed figure applies a 10.73 per cent increase based on the hourly rate increase, notwithstanding that the hourly rate does not reflect her actual earnings.
51The state of the evidence makes it difficult for me to determine the figure that most fairly represents her without injury earning capacity. It is appropriate to make some allowance for an increase in her earning capacity in the three years after the date of injury, to reflect wage increases. I am not persuaded that a blanket increase of 10.73% is appropriate given the lack of clarity around how her actual income prior to her injury was derived in terms of the applicable hourly rate. Doing the best I can, I consider that a figure of $50,000 is reasonable. In order to meet the relevant test, Ms Sepe must have a current earning capacity of $577 per week or less.
With injury earning capacity
52There is significant dispute between the parties as to Ms Sepe’s “with injury” earning capacity. To a large extent, that dispute revolves around credit and reliability issues.
Ms Sepe’s credit
53The VWA says Ms Sepe is not a credible or reliable witness because of the following matters:
(a) she registered a business on 27 February 2019, prior to her injury, and thereafter obtained qualifications and certification within the beauty and hairdressing industry, while simultaneously working for the VWA;
(b) at the time she ceased work with the employer, she was working twenty-four hours a week doing light cleaning and laundry tasks, while also studying a Certificate III in hairdressing and doing six hours a week practical training for that qualification;
(c) on her own evidence, she was happy to continue with those work hours and increase her duties;[23]
(d) she ceased work, not because of her injury, but because of anxiety;[24]
(e) After she ceased work with the employer, and throughout 2021, she received weekly payments from WorkCover while operating her beauty business “Alfa Beautique”. She made declarations on numerous certificates of capacity that she had not engaged in any voluntary work, or any form of employment or self-employment for which she received, or had been entitled to receive, payment in money or otherwise. This declaration was false, because during the period in which she was submitting certificates of capacity, she had been operating Alfa Beautique, providing lash services and selling product;[25]
(f) She gave misleading and incorrect histories to various medical experts, including her treating general practitioner, about the course work she was undertaking. For example, in Dr Parboo’s report, he noted, in August 2023, that she was “still trying to complete her Beauty Therapy course”, when in fact she had completed it. The VWA submits that her incorrect and misleading history to doctors was an attempt to bolster her case, and that this renders the opinions upon which they have based their assessments unreliable.
(g) In her first affidavit, she made no mention of Alfa Beautique and the Court should infer that she has not been frank and open about her business.
(h) She gave evidence that she wrote a “false invoice” for marketing services at the request of a client, when she had actually provided beauty services.[26]
(i) Her evidence about transactions that appeared on her bank statement was not credible. In particular, she said she remembered a particular transaction for $150 well, and that it was paid by her sister-in-law for a “cut and colour”, but then said that transaction would have represented reimbursement for a family dinner.[27]
(j) Her summary of earnings understates her actual earnings and does not include some cash transactions, some PayPal transactions and transactions for friends and family, for whom she said she did not write invoices. The Court ought to accept that she has been performing more beauty services than the documents suggest.
[23]Plaintiff’s affidavit, sworn 11 September 2023, paragraph [22] at PCB 13
[24]T48 - 49
[25]T121, L30 ꟷ T122, L3
[26]T83
[27]T88
54The VWA says that Ms Sepe is not a reliable witness and that the history she has provided to doctors of her injury and limitations is also not reliable, and therefore their assessment of her work capacity must be doubted.
55A great deal of time was spent during the trial going through the various records Ms Sepe kept for her business. By and large, these comprised handwritten entries in an exercise book with a name, date and amount noted.[28] There were a handful of computer-generated invoices, which Ms Sepe explained were templates produced by her husband and filled in by her.[29] There were also invoices completed from a carbon-copy invoice book which identified the date, the treatment provided, the price and the customer.[30] There were also bank accounts with various payments received.
[28]See, for example, DACB 512
[29]See, for example, DACB 203
[30]See, for example, DACB 349-406
56It is apparent from a careful analysis of the documents that there are some payments received that do not correspond with invoices or records in the exercise book. There are some invoices which do not appear to be sequential, giving rise to the appearance of missing invoices.
57In particular, there are computer-generated invoices numbered 100, 102 and 110. Each of these is to Bright Care.[31] Ms Sepe said that Bright Care was a business owned by a friend. She said she provided beauty services to the owner of Bright Care, as well as clients and family members of the owner. She said she had produced three invoices for Bright Care only, notwithstanding that they have non-sequential invoice numbers. She said she had provided services such as haircuts and facials to Bright Care. She marked one of the invoices as “Marketing” because she was asked to do so by the owner of Bright Care. The amount billed to Bright Care for marketing was $450. Two other invoices for $500 and $90 were billed as “Misc” and “Services (haircut and hair colour)” respectively. The VWA put to her that she had fraudulently written an invoice for “Marketing”, when she knew that she was not providing marketing services. Ms Sepe conceded she was not providing marketing services.
[31]See DACB 202, 203 and 204
58The VWA submitted this was a significant mark against Ms Sepe’s credit. I do not accept that submission. Ms Sepe marked the invoice “Marketing” at the request of her friend, the owner of her company. Ms Sepe was not providing marketing services and presumably should have marked the invoice as she did for other invoices. However, what use the owner of Bright Care was making of the service is unknown. It is possible that part of Bright Care’s marketing was to provide beauty services to clients or potential clients. It is not apparent to me that Ms Sepe knew, or ought to have known, that she was doing something inappropriate by marking an invoice as “Marketing”.
59Ms Sepe said she sometimes did not write up an invoice for customers because she did not charge them anything for her services, and they only paid the cost of the products she used.
60She said that, in relation to the capacity certificates, during that period, she was practising her treatments on family members and friends and was not charging them any fee for her services, but only receiving payment for the cost of the products used. She said she had not fully understood the obligation to report any activity she was doing that could be considered work, including voluntary work for family members.
61I do not accept that Ms Sepe’s work capacity declarations significantly impugn her credit. I accept her explanation that she did not understand that providing services to family members “for cost” and essentially practising her newly-acquired skills on them, amounted to “work”. In particular, I do not think her incorrect understanding in this regard means that her evidence is unreliable to such an extent that I ought not accept it more generally.
62Ms Sepe said she sometimes forgot to write up invoices and would go through her bank statements and identify payments received.[32] When that happened, she would usually be able to identify the service the payment was for and would write up a note in her exercise book.[33]
[32]T71
[33]T72, L1-5
63She said most people paid directly to her account via a payment transfer App called PayID.[34] She accepted that she occasionally received payment in cash, and occasionally received payments via PayPal, another fund-transfer payment system.
[34]T71, L21-26
64She said she did not know much about bookkeeping, but just tried to do it herself.[35]
[35]T71, L4-5
65What was apparent when comparing the documentary evidence from her business, her bank accounts and her tax returns, is that there was a discrepancy between the invoices and transaction documents, and the amount received.
66However, what was also apparent was that, in at least the financial years 2020, 2021, 2022 and 2023, she reported more income on her tax returns than was recorded by her other documents, including her exercise book, invoice book and computer invoices.
67For example, in 2020, she had records for $1,232.40 received from her business, but declared $2,841 on her tax return. In 2021, her records showed $2,001 in receipts, but she declared $2,563; in 2022, her records showed $1,020 in receipts, but she declared $3,904; and in 2023, her records showed $5,630 in receipts and she declared $5,914.
68She explained that, in preparing her tax return, she would identify transactions related to receipts for her business on her bank statements, as well as invoices and transaction records.
69It is difficult to conclude that Ms Sepe was trying to hide a significant cash business. If this was her intention, I would have expected her declared income to adhere more closely, if not be identical to, the income for which she had documentary records.
70It is possible that Ms Sepe declared some, but not all, cash receipts on her income tax returns. However, it is unlikely that, if this is the case, the undeclared cash is significant, given her evidence that most of her customers did not use cash, the declining use of cash generally, and what I accept as her sincere efforts to provide the VWA with tax, bank and other records relating to her business.
71Ms Sepe impressed me as someone with no experience running a business, who is providing services to family members, friends and other word-of-mouth referred customers, from her home. She does not have sophisticated bookkeeping systems and, on occasion, those systems have been inadequate. The discrepancies are in the hundreds or low thousands of dollars per year, and the fact that her declared income exceeded the amount she had documented receipts for in four out of five years, suggests she was doing her best to properly declare her business operations to the tax department. There is no evidence that she was hiding income from the tax department.
72I do not find her accounting discrepancies to significantly impugn her credit, nor am I persuaded that they demonstrate that she is likely to have engaged in significantly more work than she says, or has recorded.
73The records generally accord with her evidence that she is providing, at most, a few services a week to family and friends.[36]
[36]T71
74In relation to the timing of registering her business and undertaking various courses, I am not satisfied that the history recorded by various doctors accurately reflects Ms Sepe’s instructions, nor that I ought to conclude she has deliberately dissembled or misled those doctors. Ms Sepe attended her doctors and medico-legal appointments without an interpreter. While she has reasonable English and has lived in Australia for many years, it is possible that incorrect use of tenses, or incorrect understanding, led doctors to record that, for example, she was still undertaking a course, when she had completed it.
75If Ms Sepe was intending to mislead her doctors, I would expect she would have devised a consistent story and stuck to it. Instead, they appear to have recorded varying accounts of what courses she has undertaken, or intends to undertake.
76For example, Dr Parboo who wrote on 8 August 2023, that Ms Sepe was “still trying to complete her Beauty Therapy course”,[37] but Ms Sepe is adamant that she had discussed with Dr Parboo her course before she resigned. She said she could not remember whether she had discussed with Dr Parboo whether being a hairdresser was suitable given her injury, but she knows he knew that she was a doing hairdressing work.[38] I accept her evidence about that, as it is inherently unlikely she would tell him, in 2023, that she was yet to complete her hairdressing course, knowing that he was a doctor from whom reports for her legal case had been and would be obtained, and knowing, also, that the dates of her completion of that course and her certificates for that course had been discovered to the VWA. Her course had been delayed by COVID-19 and it may be that he did not have updated information when he prepared his 2023 report.
[37]PCB 40
[38]T60, L5-11
77In relation to Dr Slesenger, it was put to Ms Sepe that she did not tell Dr Slesenger about her hairdressing course or her business when she consulted him. She said that, though she could not recall precisely the content of their consultation, if she had not told him, it was probably because she was answering questions he asked and he did not ask about the business. She said that, at the time of her first consultation with Dr Slesenger in May 2020, she had not finished her course and probably had not provided any hairdressing or other beauty services. She had done her lash-tinting and lash-lifting course at the end of 2019, but was unable to provide services for money until she was good at it. COVID-19 restrictions then came into effect and she could not develop her skills, other than by practising on family members.[39]
[39]T64-65
78At the time of her consultation with Dr Slesenger, which occurred via telehealth during COVID-19 restrictions, I am satisfied that Ms Sepe would not have had a full understanding of the importance of informing him that she had undertaken a two-day course in lashes and was enrolled in a course in hairdressing.
79While these are obviously relevant matters, I am not persuaded that her failure to mention them was because of a deliberate attempt to keep that information from Dr Slesenger in order to bolster her case. It is more likely that she answered his questions and did not appreciate her obligation to disclose matters beyond those questions.
80In relation to her evidence under cross-examination and attacks on her credit made in relation to that, particularly that she was changing her recollection of events to suit her case, I do not accept that her credit was significantly impugned. I formed the impression she was doing her best to give evidence to the best of her recollection, and to explain why she was able to recall some transfers on her bank statements. Whether, for example, a transaction of $150 derived from a hair service or was reimbursement for a family meal, makes little difference to her post-injury income and there would be no benefit to Ms Sepe from changing her story about it, other than because she realised that she had made an error.
81She was also able to plausibly and immediately explain some of the large transactions that appeared on her bank statements as transfers or cash payments.
82In summary, although there are discrepancies in the medical histories obtained, I am not persuaded that the reason for those discrepancies is an attempt by Ms Sepe to dissemble or to bolster her case. Nor am I persuaded that her inadequate accounting systems represent a significant blow to her credit. I am not persuaded that her evidence was evasive or designed to bolster her case.
83I do not consider her credit to have been significantly impugned and generally accept her as a credible witness. While her evidence is somewhat unreliable due to the passage of time and her imperfect memory, I do not consider that on key aspects, such as her pain, restrictions and capacity for work, her evidence ought to be rejected.
Suitable employment
84The VWA says Ms Sepe’s work capacity is best reflected by her capacity at the time she ceased work, which was for twenty-four hours a week on light duties, plus six hours undertaking the practical component of her studies. The VWA says there is little radiological support for the extent of incapacity Ms Sepe alleges, and she is having little current treatment and taking only non-prescription medication.
85The VWA submits that Ms Sepe’s reports of her pain and limitations ought not be accepted, given the unreliability of her evidence.
86In addition to the medical reports, the VWA relies on a report of Nicholas Janides, senior vocation consultant and occupational rehabilitation consultant, from AMS Consulting Group (Aust) Pty Ltd, dated 19 September 2023.
87Mr Janides’ report provides an analysis of the tasks required for various jobs which the VWA says represent suitable employment, and the wage that such jobs attract.
88The VWA submits that Ms Sepe has capacity for a range of jobs which attract salaries that exceed 60 per cent of her without injury earning capacity working twenty or twenty-four hours a week. In particular, the VWA submits the following jobs are suitable employment and attract wages that exceed 60 per cent of her “without injury” earning capacity:
(a) a general clerk working twenty hours a week earns $643.29 per week;
(b) a hotel/motel receptionist working twenty hours a week earns $443.60 and working twenty-four hours a week, $648;
(c) an information officer working twenty hours a week earns $505.20 and working twenty-four hours a week, $606.24;
(d) a beauty therapist working twenty hours a week earns $509.80 and working twenty-four hours a week,$611.76; and
(e) an eyelash technician working twenty hours a week earns $860.20.
89Ms Sepe acknowledged that she has a current work capacity, and says she is working to the extent of her capacity, which amounts to about three hours a week providing beauty and hair services. She said she might have told Dr Yong she could do six hours a week, but if she did, that was at the “very, very start”[40] and she does not work six hours a week now.
[40]T97
90She says, although she can provide services such as eyelash tinting, lash extensions, haircuts and colouring and facials, she would not be able to work in a commercial salon because, due to her injury, she is slow. She says generally an eyelash extension should take only one hour, and this would be the expectation at a commercial salon.[41] An eyelash extension takes her three hours, as she has to alternate between standing and sitting and take breaks. She would not be able to do this work 20 or 24 hours a week, due to her pain and restrictions.
[41]T68-69
91She says her skills are not transferable into a commercial setting and that homebased work, at the rate and pace that she is able to set, is suitable employment.
92Even the limited work she does causes her back to flare-up and increases her fatigue.
93She says she does not have the skill set, training or English language skills to work in an office environment, and that reception work is likely to require language skills she does not have, as well as prolonged sitting.
94She submits that the more appropriate rates attracted by the jobs identified by the VWA as “suitable employment” are set out in the report of Belinda Iatrou of Flexi Personnel, dated 21 September 2023.[42]
[42]PCB 84
95Based on these rates, Ms Sepe says she would earn as follows:
(a) beauty therapist working twenty hours a week, $523;
(b) general clerk working twenty hours a week, $479;
(c) hotel receptionist working twenty hours a week, $481;
(d) customer service officer working twenty hours a week, $494; and
(e) salon assistant working twenty hours a week, $494.
96All of these rates fall below $553.84, which is the figure submitted by the VWA as 60% of her without injury earning capacity and fall well below the figure of $607.80 which she submits is 60% of her without injury earning capacity.
Findings on suitable employment
97There was no consensus between the experts as to suitable employment for Ms Sepe, nor the hours she could work.
98Dr Akil considered she had some work capacity “in theory”, but did not consider work as a beauty therapist or eyelash technician was suitable.
99Dr Parboo expressed an opinion as to her capacity to increase her work hours, but modified his assessment by noting it was not his area of expertise.
100Dr Barberis considered a number of roles were suitable, including retail assistant, hairdressing apprentice, pharmacy assistant, front of house receptionist, retail sales assistant, general clerk, hotel receptionist, customer service officer and beauty therapist.
101Dr Barberis provided scant reasoning for her assessments and considered Ms Sepe able to work in a number of occupations not deemed suitable by anyone else. She had not assessed Ms Sepe since 2021, more than three years ago. For those reasons, I do not find Dr Barberis’s opinion persuasive.
102Dr Slesenger considered Ms Sepe had capacity for work as a general clerk, hotel/motel receptionist and information officer/administration officer, provided various restrictions were observed. Dr Slesenger was cautious about work as a beauty therapist or eyelash technician. He considered that she could gradually return to her pre-injury work hours over a twelve-to-fourteen-week period.
103Mr Dooley considered Ms Sepe could work as an eyelash technician, beauty therapist, general clerk, information officer/administration officer, hotel/motel receptionist and sales assistant (with some reservations). He noted that his assessment was based solely on his expertise as an orthopaedic surgeon, and he was not commenting about her capacity more generally.
104Dr Yong considered none of the tasks identified by Mr Janides were appropriate for Ms Sepe, but did consider she had capacity for about six work hours a week, providing beauty services from home.
105Dr Yong, who assessed Ms Sepe in November 2023, has provided a careful and helpful analysis of each of the jobs identified by Mr Janides and provided detailed reasons for forming his view as to the suitability of employment.
106Likewise, Dr Slesenger has also carefully analysed the roles outlined by Mr Janides, and, based on the information about the tasks each role requires, formed his opinion as to Ms Sepe’s suitability for these roles.
107Many of the roles identified by Mr Janides required computer, office and language skills. It is not apparent, on the evidence available to me, that Ms Sepe possesses these skills. As a result, I am not persuaded that a role as a general clerk, hotel/motel receptionist or information/administration officer is suitable employment. Ms Sepe has no experience in an office. She undertook a short secretarial course in the Philippines at the age of eighteen, when she was pregnant and trying to conceal her pregnancy from her parents. She says she can remember little of the course and that she types with two fingers. She did a four-week accounting course for “non-accountants” in 2000. I do not think that either of these courses provides her with the practical experience or skills to be employable in an office environment in Australia, with English as a second language, at the age of fifty-three. Accordingly, I am not persuaded that the roles of general clerk, information/administration officer or hotel/motel receptionist, represent suitable employment for Ms Sepe.
108She retains a work capacity as an eyelash technician or beauty technician, but I accept her evidence that she would not be employable in a commercial salon, given her slow work and the modifications required. Friends and family members may be prepared to spend three hours having a treatment that would typically take one hour. However, customers at a commercial salon are unlikely to be prepared to do so, and an employer is unlikely to be prepared to engage a technician who takes considerably longer than industry standard times to perform a task.
109I am also not persuaded that she would be able to do this work twenty hours a week or more at home. I do not accept that her credibility has been significantly impugned to the extent that her evidence about pain and restrictions is unreliable.
110I accept her evidence that working three hours a week causes back flare-ups and pain. Any additional working capacity she has is likely to be modest, in the order of around six hours a week, as opined by Dr Yong.
111Although she was working twenty-four hours as a cleaner at the time she resigned, I accept that this was causing her pain and difficulty. None of the experts consider that this work represents suitable employment.
112Therefore, I do not accept that she has a working capacity of 20 hours a week.
113However, if I am wrong about that, I turn now to consider what her earning capacity would be if she did retain an earning capacity of 20 hours a week.
114I have already found that the amount that most fairly represents her “without injury” earnings is $50,000 a year, which is $961.53 a week. Sixty percent of that amount is $577 per week.
115Of the jobs identified as suitable employment by the VWA, only the position of general clerk or eyelash technician attracts a salary above $577 a week, on the wage rates submitted by the Ms Janides. None of the positions attract a salary above $577 per week on the rates submitted by Ms Iatrou.
116Where there is a distinction between the wage rates identified by Ms Janides, and Ms Iatrou, I prefer the evidence of Ms Iatrou. Her assessments are based on industry awards or enterprise agreements which provide a clear base for a determination of the hourly rates that various roles attract.
117By contrast, Mr Janides’ report indicates that:
“The labour market has indicated that full-time employees can earn:
From $55,000 to $70,000”[43]
[43]DACB 113
as a beauty therapist.
118This provides me with little information about average industry salary or the likelihood of Ms Sepe attracting this salary.
119He opines that the “national average yearly wage” for an eyelash technician “can be: $85,000”.[44] It is not clear on what he based this assessment, as he noted that there was no labour market information available through the “Job Markets Australia data”. However, he went on to note that eyelash technicians “can make between $30 to $1500 a day”.[45] This is a significant variation and there is no information to enable me to identify at what end of that scale Ms Sepe is likely to fall, and no explanation by Mr Janides as to where he considers Ms Sepe sits on that scale.
[44]DACB 116
[45]Ibid
120In relation to the role of general clerk, Mr Janides says the:
“labour market has indicated that full-time employees can earn:
From $63,568 to $80,380”[46]
[46]DACB 117
He places Ms Sepe at the lower end of this salary range, based on an assumption that she has “1 year of office experience”.[47] I am not satisfied that Ms Sepe has one year of office experience, and accept her evidence that she has no office experience.
[47]Ibid
121It is not apparent form Mr Janides’ report whether, in considering what comprises the “labour market” he has considered industry awards, which would appear to have a lower hourly rate than the rate he cites of $33.84 to $42.08. The job advertisement he attaches attracts a salary of $50,000 to $55,000, which is significantly below the $63,568 figure he opines that Ms Sepe could attract.
122Similar deficiencies apply to the other salary ranges he has attached to the identified roles.
123For those reasons, even if:
(a) I am wrong about Ms Sepe’s capacity to work as a general clerk, hotel receptionist or information officer;
(b) I am wrong that Ms Sepe does not have capacity to work twenty hours a week; and
(c) I accept the VWA’s assessment of her without injury earning capacity as $923 gross per week;
she has still sustained a loss of earning capacity of more than 60 per cent of her without injury earnings.
124In order for the VWA to establish that Ms Sepe does not meet the test for pecuniary loss, I would have to be persuaded that Mr Janides’ figures were more appropriate, or that her working capacity is at least twenty-four hours a week. For the reasons set out above, I am not persuaded of this.
125Therefore, I find that Ms Sepe has established that she has loss of earning capacity of at least 40% of her “without injury earnings”.
126As set out above, because Ms Sepe meets the test for loss of earning capacity, she also satisfies the requirement to establish that her injuries have consequences that are “at least very considerable”.
127Accordingly, Ms Sepe has leave to commence common law proceedings for damages for pain and suffering and pecuniary loss.
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