Simpson v MAD Recruitment Pty Ltd

[2022] VCC 1301

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

 Revised
(Not) Restricted
Suitable for Publication

Case No. CI-17-02305

JOHNATHAN SIMPSON	Plaintiff
v
MAD RECRUITMENT PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 July 2022 and 15 July 2022
DATE OF JUDGMENT:	25 August 2022
CASE MAY BE CITED AS:	Simpson v MAD Recruitment Pty Ltd
MEDIUM NEUTRAL CITATION:	[2022] VCC 1301

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious Injury – Injury to left elbow – Plaintiff’s credit in issue  – Whether injury “significant” or “marked” - Dispute as to whether Plaintiff meets the threshold for loss of earning

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Cases Cited:Fox v Percy [2003] 214 CLR 118; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; Richter v Driscoll [2016] VSCA 142;

Judgment:                  Application granted for pain and suffering only

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Coldwell with Ms R Ayres	Maurice Blackburn
For the  Defendant	Mr L Howe	Wisewould Mahony

HIS HONOUR: [1]

[1]The transcript footnotes in this Judgment refer to the pagination of the electronic versions of the hearing transcripts provided at the hearing

1Mr Johnathan Simpson injured his left elbow in April 2013 while at work. He alleges that injury has caused pain and suffering consequences, which are “serious” in accordance with the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). In addition, he claims to have no work capacity, or such little work capacity that he satisfies the test to qualify for a loss of earnings determination. The Defendant concedes that Mr Simpson suffered an injury at work and that it is stable and permanent. However, it disputes that the consequences of that injury rise to the requisite level either in pain and suffering, or loss of earnings terms. On both fronts the Defendant argued that Mr Simpson was not a credible witness and his evidence should not be accepted. Specifically, it argued that he could return to work full time in static security roles.

Relevant chronology

2Mr Simpson was born in Australia in February 1983. In 1999 he finished Year 10, aged 16, and then began working as a factory hand and sales assistant before returning to manual work. He is married to his wife Nicole Simpson. They have four children; the first born in 2004, the second in 2008, and twins born in about 2010. In the years leading up to his injury in April 2013, he worked in a variety of  jobs including working as a forklift driver, a factory hand, in retail, and then as a truck driver. He joined a recruitment company, MAD Recruitment Vic Pty Ltd (‘MAD’), in early 2013. He was sent by MAD to work at Cleanaway Pty Ltd as a hard rubbish collector. His job involved working with another runner behind a rubbish truck, lifting items including bins, picking up, and throwing rubbish into the truck.[2]

[2]Defendant’s Court Book (“DCB”) 73; see Report of Dr Mpho Banda dated 31 August 2021

3About seven weeks into that job, he began experiencing pain in his left elbow on 24 April 2013. This condition worsened. He saw his treating doctor, Dr Greg Sendecki. He ceased work at this time and commenced physiotherapy which lasted for about three months. At that time, he had been working up to 60 hours per week. He was referred to Mr Thomas Robbins, a specialist. He underwent injections to the left elbow site with cortisone on two occasions in mid‑2013, but this had no effect. In August 2013, Mr Robbins performed surgery. The surgery was clinically successful. However, there was a complication with a wound infection. This required further surgical treatment for debridement and secondary wound closure in late 2013. There is a surgical scar about the site.

4After the second surgery, he continued to see Dr Sendecki every two to three months, and required Panadeine Forte, up to six tablets a day to control his pain. He also took Endep to help him sleep.[3]

[3]Plaintiff’s Court Book (“PCB”) 12, at paragraph [21]

5He then did two security training courses, and completed a traffic management course via a WorkCover rehabilitation consultant.

6In about 2016, he obtained casual work as a security guard through a recruitment agency, working up to about 20 hours per week.[4] He was placed at various venues such as clubs, the horse racing and exposition events. He gave evidence that he was concerned that if he became involved in a physical altercations while working as a security guard, he would re-injure his left arm. During the course of cross-examination, he gave evidence that he was involved in five or six such altercations. As a result, he ceased that type of security guard work. He also obtained some work at Haileybury College as a static security guard. He gave evidence that the job involved moving furniture and desks which he was unable to complete, and so ceased.

[4]        PCB 213

7In 2017, he attempted to work as a night stock filler for Coles between 10:00pm and 2:00am in the morning. [5]   He only lasted a few weeks in this role as he gave evidence that the job aggravated his condition. In 2018 he enrolled in two Certificate III courses, namely non-emergency transport and a health services assistant; Mr Simpson hoped to work as a hospital orderly upon completion of the health services assistants certificate. He did not complete these course as he became aware that once qualified, he would have substantial manual handling duties and he considered these would aggravate his left elbow injury.

[5]        PCB 70

8Since that time, he has not done any further retraining.

9Other than Dr Sendecki’s treatment, he came under the care of Dr Murray Taverner, a pain specialist. Under his guidance, he attempted a Ketamine infusion in February 2020. He reported to Dr Taverner that he had pain that was continuous and stabbing, and in the range of 4 to 8 out of 10.[6] That pain, he reported had a burning sensation, radiating from the elbow to the hand. While he could do most of his daily living activities, he is only able to do small shops and drive short distances. He could stand for 60 minutes and walk for 30 minutes. He gave evidence, and Dr Taverner recorded, that his sleep was affected and that he slept in four-hour blocks.

[6]        PCB 44

10In January 2020, he attempted work as a sanitary bin collector three days per week. He lasted only a short time as it involved significant manual handling and aggravated his left elbow injury. He ceased that work. He has not worked since.

11He ceased seeing Dr Sendecki when he retired in around mid-2021, and thereafter came under the care of his new treating doctor, Dr Pejman Hajbabaie in October 2021. Since October 2021, he has been seeing Dr Hajbabaie.

12In January 2022, he injured his right shoulder when attempting to lift multiple shopping bags on his right side. He was referred for physiotherapy and had five such sessions, and was also prescribed Panadeine Forte. Mr Simpson said in evidence that he was never prescribed Panadeine Forte for his right shoulder problems but rather it was for the left elbow. This became a source of contention between the parties and I will deal with it further below in my judgment.

13He had a pain management program through the Frankston Pain Management Centre, but he ceased this because he did not consider it was assisting his left elbow pain. He had further injections (five in total) of cortisone, and anaesthetic into the left elbow ceasing in mid-2021. They provided only short-term relief. He completed a six-week St John of God Hospital pain management course, also in 2021.

14Otherwise, he used capsaicin cream but ceased using it when he did not consider it to be helping. His current situation is that he takes Panadeine Forte, but only one to two tablets every few days to take the edge off his pain. Otherwise, he uses Endep to sleep at night.

15His mother began to suffer from dementia and in about 2020, he and his wife decided that he would move to care for her. He moved in with his mother and is currently in receipt of a Centrelink Carer’s Pension. The evidence is that he does no real physical caring for her but rather, is there to prompt her throughout the day as required to keep her safe.[7] He otherwise assists her with light shopping, bill paying and the like.

[7]PCB 280

Assessment of credit

16The Defendant’s position was that Mr Simpson was an unreliable witness who sought to unfairly bolster the consequences associated with his left elbow injury. Particularly this was submitted to be in regard to his ability to retrain and work. In coming to an assessment of Mr Simpson’s credit, I am mindful that not only is his manner of giving evidence relevant, but the overall inconsistencies and omissions must be considered in the context of all the evidence.[8]

[8]Fox v Percy [2003] 214 CLR 118

17I start by noting that Mr Simpson gave evidence in a combative and argumentative style. He frequently responded to counsel with a further question or an unwillingness to engage with what was being asked of him.[9] At times he was unreliable. For example, at one point he gave evidence that lifting 200 grams repetitively[10] or even three to four plates would hurt his left elbow.[11] Yet, all the doctors say that he has a lifting capacity of substantially more than that. His unreliability was more to the point when he gave evidence about his treatment during the course of this year. His evidence is that he had been seeing Dr Hajbabaie and obtaining prescriptions for Panadeine Forte during this time. His last Affidavit noted:

“I get right shoulder and upper back pain from time to time”.[12]

[9]        Transcript (“T”) 17, Line (“L”) 2-3; T 18, L 1-2; T 30, L 20-23; T 32, L 26-29

[10]        T 36, L1-2

[11]        T 36, L 25-27

[12]PCB 26, at paragraph [3]

18During cross-examination, Mr Simpson was taken to the notes from Dr Hajbabaie’s clinic which indicated that in January of this year, he suffered an injury to his right shoulder while attempting to lift shopping bags. Dr Hajbabaie had prescribed Panadeine Forte and referred him for five physiotherapy sessions. In fact, over the course of the next four months, he saw Dr Hajbabaie regularly for right shoulder and upper back pain. In evidence, Mr Simpson was adamant that Dr Hajbabaie’s notes between 14 January 2022 and 9 May 2022 were incorrect. He gave evidence that  on every one of those occasions, he had not attended for right shoulder pain but rather for left elbow pain. I find this was first an under reporting in his Affidavit of the true nature of the right shoulder condition, especially as Panadeine Forte was prescribed for it. Secondly, it was completely contradictory to the treating doctor’s notes on several occasions; this is because the doctor had clearly referred Mr Simpson to a physiotherapist for right shoulder treatment; who Mr Simpson  actually saw for treatment. This indicates a significant unreliability of Mr Simpson’s evidence on this point.

19His evidence was also unreliable as to the reasons for not being able to pursue security guard work. In his first Affidavit, he gave evidence that he could not pursue security guard work because of the fear of being involved in altercations. However, in his last Affidavit he suggested that he was not able to perform such work because of fatigue and unreliability problems. Similarly, in his first Affidavit, while he deposed to not being a strong student, it was only in his last Affidavit that he deposed to quite significant problems with reading and writing English. Up until the last Affidavit, which was the fourth one, there was no mention of English being a barrier to training either in any of his previous jobs; for instance, when he obtained his forklift licence or security licence. Nor did it feature as a barrier to undertaking either of the Certificate III courses. The inconsistency in Mr Simpson’s evidence suggested a pattern of shaping of evidence to combat a perceived argument that he had a capacity for work. He was also unreliable and combative when it was put to him that when he changed doctors to Dr Hajbabaie, he filled out an Adult Clinical Information form which did not identify that he had “chronic pain”. In cross-examination he quickly answered that he had “ticked no to everything”.[13]  When the form was examined, it was clear that he did not tick “no” for all the answers, but identified having problems with other areas of his body such as his teeth and gums.[14]

[13]        T 48, L 18

[14]        DCB 175

20Overall, I consider he was a witness whose evidence needs to be treated with some caution, particularly as to his capacity for work and to be retrained. While I accept his evidence in the main as to his physical injury and its pain and suffering consequences, I cannot accept all his evidence as to the impact his physical condition is alleged to affect his loss of earning capacity as of today and for the foreseeable future. This is also because his evidence on the pain and suffering consequences is largely buttressed by the witness evidence of his wife who was not cross-examined and stands unchallenged.

Assessment of the pain and suffering consequences

21Having made those findings as to credit set out above, I find that the pain and suffering consequences of Mr Simpson’s left elbow injury are more than significant and marked. I do so because, firstly, he has had a frank onset of organic injury in compensable circumstances. It occurs as a result of repetitive, often heavy, manual lifting work which was occurring in a situation where he was working up to 60 hours per week. Until that point in time, he had been physically well and had no significant injury. He had been in work, and was working to support his family as the primary breadwinner. His condition did not respond to two rounds of cortisone injections or rehabilitation therapy. He has required two rounds of surgery for the elbow and the subsequent infections. He has also had five cortisone injections to deal with pain and permanent muscle contracture; and an ongoing difficulty in using his arm. None of this has alleviated his pain or the fact that his left elbow swells and causes increasing pain with any prolonged use. Further, he has seen numerous treating doctors over eight years and none have commented on inconsistent signs on clinical examination indicating any abnormal illness behaviour. This is particularly important given that he was treated by Dr Sendecki for some eight years between 2013 and until Dr Sendecki retired in around mid-2021. The symptoms he reported were all consistent with Dr Sendecki’s reporting and the medico-legal reporting during this period. While Mr Damian Ireland, a medico legal expert for the Defendant suggests that there has  been improvement, this stands in contrast to the vast majority of other evidence which suggests that the clinical organic difficulties faced by Mr Simpson are accurately recorded. Mr Ireland then is an outlier and I do not accept his evidence.

22Second, the impact of the injury is significant for this particular Plaintiff. At the time of the injury and even now, he is a young man of only 39 years. The injury is to his left dominant arm. He is a man who has limited education and relied on his physical capacity. As such, injury to the left dominant arm for a manual worker is significant. This is even more significant given that he was the main breadwinner for his family. It is also significant that the injury has taken away his ability to work in a field which he enjoyed.

23Thirdly, the evidence of his wife is unchallenged. It speaks eloquently of the impact Mr Simpson’s injury has had on their married and intimate life. It also details and supports Mr Simpson’s evidence of how the injury has impacted his ability to play golf, which was both a social and family pursuit, and his ability to actively participate in household duties, performing domestic chores to assist his wife. This is strong supportive evidence as to the significant consequences that Mr Simpson deposes to in his Affidavit materials. I have considered Mrs Simpson’s Affidavit in light of the totality of the evidence and while it provides some corroboration of his pain consequences, this does not displace the findings I have set out above regarding his credibility.[15]

[15]        Siddel-Whipp v Transport Accident Commission [2020] VSCA 109, at [90]

24Turning to assess his pain. This is broadly at the level of 5 to 6 out of 10,[16] an almost constant situation. He takes Panadeine Forte one to two times every few days to take the edge off his pain.[17] That has been an ongoing situation for over eight years. The injury has also affected his sleep very significantly, and it is broken. As such he does not sleep the whole night through, but rather in blocks of perhaps four hours at a time.[18]

[16]        PCB 44

[17]        PCB 27, at paragraph [11]

[18]        PCB 14, at paragraph [36]

25As set out above, his current situation is that he is doing caring work for his mother, and otherwise plays little role in the domestic tasks at home. He does not cook because it involves using his left arm, or perform heavier manual tasks around the home such as mowing or making the beds.

26Overall, I consider the consequences on a pain and suffering basis to be more than significant or marked for Mr Simpson. I grant him a certificate in this regard.

Assessment of loss of earnings

27Mr Simpson submits that he is totally unable to work and, in the alternative, if he could work, it would result in less than 40 per cent of his gross earnings, in comparison to that which most fairly reflects what he was capable of earning in the three years before and three years after his injury.

28The  Defendant submitted that he was able to work in a number of static security guard roles such as a security concierge, a gatehouse worker or a security CCTV monitor. It was said that he could perform each of these roles on a full-time basis. In response to that, Mr Simpson submitted that while he may physically be able to do these jobs, he is unable to perform the computer tasks required, even with retraining, and could not work reliably and consistently in these jobs.[19] I reject Mr Simpson’s submissions.

[19]Richter v Driscoll [2016] VSCA 142

29Turning to make the initial assessment, of what the relevant figure that most fairly represents his earnings in the three years before and three years after should be. I consider this figure to be $48,212. This figure is calculated by looking at the period between April 2010 and April 2016. During this period, his earnings for the full financial year ending 30 June 2011 was $30,542, for the year ending 30 June 2012, it was $38,657, and for the year ending 30 June 2013, it was $48,212. This last figure includes  payments for the time he was injured. Mr Simpson’s Counsel submitted that a figure of about $91,000 most fairly reflects his earning capacity in the relevant period of three years before and three years after. This is based on an extrapolation of the seven weeks and four days of work that he did while employed with MAD, extrapolated to full time earnings with indexation. I would reject the use and adoption of that figure because it is completely inconsistent with the earning pattern that he had prior to his injury. Prior to his injury, he had worked in manual jobs obtaining overtime where he could. This was also during a time where he was the primary breadwinner, and was also trying to support a young family. Having deployed that capacity as best he could, his earnings were around $37,744 per annum with Polymarble. He had then obtained a better paying position through MAD. However, this position was neither full time nor permanent. As best as can be gleaned, it was a recruitment agency filled position, subject to the usual volatility associated with such roles. It also had earnings where Mr Simpson was working up to 60 hours per week. While it could be accepted that he would occasionally work this many hours, it is unlikely in the extreme that those would be his consistent hours year after year. I therefore consider that a figure of $48,212 represents most fairly his earning capacity in the three years before and three years after April 2013.

30Turning now to assess Mr Simpson’s capacity as at the date of the hearing. I make it clear at the outset that after the evidence in this matter, it became apparent that all parties agreed that Mr Simpson could not do any job which involved significant manual handling. This had been excluded by all the doctors. Similarly, jobs such as traffic controller and sales assistant were also ruled out both by the medical evidence and conceded by the Defendant as being inappropriate. All that was left in the Defendant’s case was its argument that Mr Simpson could perform static security roles. The parties joined issue in respect of these three roles. In coming to my finding that Mr Simpson has a capacity to perform these roles full time, I first note that he has a proven residual capacity for work. That much is evident in his history. He worked for six months in 2016 as a security guard – doing all types of work – up to 24 hours per week. He said in his Affidavit of 12 December 2016 that he had worked as a security guard but gave up because, (a) he was scared of altercations,[20] and (b) his job at Haileybury involved moving desks and the like,[21] and was too physically demanding. However, in respect of his job at Haileybury, without the lifting tasks (a concierge role), he deposed, “I can do lighter work”.[22] In cross-examination he accepted he could do the static guard work but ultimately retreated to saying he could not do it reliably and consistently. I note in his Affidavits, however, initially he did not make any mention of being unable to perform the suggested static concierge roles on a reliable and consistent basis, because the pain and fatigue would render him unable to attend to work. He simply noted in his first Affidavit, “I often feel tired during the day.”[23] In his Affidavit of 5 August 2019, he described the attacks of pain as occurring three times a week, which required him to rest.[24] However, he also deposed that this occurred when he “overdid it”.[25] Further, it was only 3 years later after his first Affidavit, and giving up his security jobs that he deposed in his second Affidavit, that he was concerned about not being a reliable and consistent employee.[26] This supports my finding that he has a residual capacity in a role where he does not have a great deal of physical exertion.

[20]        PCB 12, at paragraph [25]

[21]        PCB 12-13, at paragraph [28]

[22]PCB 13, at paragraph [32]

[23]PCB 14 at paragraph [36]

[24]        PCB 19, at paragraph [18]

[25]        Ibid

[26]        PCB 21, at paragraph [40]

31The  Defendant submitted that the fact that he was a personal carer for his mother supports the view that he has the capacity to work. Given his mother is largely independent with activities of daily living and the limited things he does for her, I consider this insignificant in demonstrating his capacity.

32Second, he is a young man. He has completed school to Year 10. He grew up in Frankston and his first language is English. He can read and write English. While he said in his first Affidavit that he did not enjoy school, it was only in his fourth Affidavit of 12 May 2022 that he deposed that his reading is “not crash hot”,[27] he is unable to “read fast”[28] and struggles to “read big words properly”.[29] He deposes “My writing is average.”[30] I record my finding that in cross-examination he clearly understood counsel’s questioning and responded clearly with a good command of English. It is also relevant that he previously worked as a sales assistant which must have involved some customer interaction. He has completed a forklift driver’s course and a security course successfully. In addition, he enrolled in two Certificate III courses as a care orderly and non-emergency transport, and only ceased because he became aware of the significant physical work he would have to do. He did not cease these courses because he could not read or review course materials. This is strong evidence that he has a capacity to improve his skills and cope with the training requirements of the static security roles. I find that while he may have only modest reading and writing English skills, I do not accept they are so poor as to prevent him from training to learn basic computer skills as required for the three static security positions. These are Microsoft Outlook, Excel and a security program named Milestone. I am reinforced in this finding because I find he already uses email – presumably Outlook or a similar operating system. I also rely on the opinions of Dr Peter Wilkins[31] and Dr Mpho Banda[32] as to Mr Simpson’s ability to do security roles and the training associated with them. I prefer their evidence to that of Dr Joseph Slesenger.  His opinion, when looked at closely, excludes the static security positions on two bases; namely, that Mr Simpson does not have experience in the suggested roles and that he does not have the necessary computer skills.[33] As I have set out above, I find that as a 39 year old man, educated to Year 10, with English as his first language and who has a history of being able to successfully upskill, he can train to obtain the necessary computing skills. The issue of having no experience is not a factor to be taken into account by me when assessing his capacity for employment. It is also important to note that Dr Slesenger did not have the report of Ms Janette Ash, who detailed the work task requirements required in each static security role. This was considered by Dr Banda in forming her opinion. Dr Slesenger’s failure to consider this report undermines his opinion further.

[27]        PCB 30, at paragraph [23]

[28]        Ibid

[29]        Ibid

[30]PCB 30, at paragraph [24]

[31]DCB 71; See Dr Peter Wilkins answer to question [7] in his report dated 26 July 2019

[32]DCB 84, See Dr Mpho Banda answers to question [b] and [g] of her report dated 9 March 2022

[33]        PCB 94

33I am further reinforced in this view, of accepting Dr Wilkins and Dr Banda, by the evidence of Dr Murray Taverner, the treating pain specialist. His report is very thorough, detailed and illuminating. He is the only treating doctor to report for some three years. He assessed Mr Simpson’s current work capacity in the following way:

“No easy fixes and vocational rehabilitation to help him find suitable work within his functional tolerances and allow him time to build functional capacity is desirable.”[34]

[34]        PCB 52

34I interpret this to be Dr Taverner stating that Mr Simpson has the capacity to retrain. The opinions of Mr Chehata do not touch on capacity for non-physical work and so are of no use on this point. Mr Simpson called in aid the opinion of Mr Paul Hartley, a vocational assessor. His report seeks to provide opinion of the “realistic employability” and “marketability”[35] of Mr Simpson’s residual work capacity. This is not the criteria established by the Act and I put Mr Hartley’s opinions to one side.

[35]PCB 330

35I also note, and consider significant, that there is no report from Mr Simpson’s treating doctor. This is despite the fact that this matter was adjourned some two months ago. Mr Simpson tendered material from Dr Sendecki who treated him from 2013 until he retired in around mid-2021. Thereafter, Dr Hajbabaie became his treating doctor. Dr Sendecki’s last report from 30 July 2019 postulated that it was hard to predict how long a recovery would take to allow re-entry into the workforce.[36] As noted above, since that report, now three years ago, there is no further treating doctor’s report. The only treating specialist to opine in that period has been Dr Taverner and I have set out his opinion above. This omission is even more surprising because during cross-examination, it was put that from 14 January 2022 to 9 May 2022, Mr Simpson had been suffering from a right shoulder injury, and had been treated by Dr Hajbabaie for this rather than anything to do with his left elbow injury. Mr Simpson was taken to the treating doctor’s notes which referred to the right shoulder and upper back problems. He gave evidence that not only were the notes wrong (because they should refer to left elbow not right shoulder), but he had spoken to Dr Hajbabaie about this, and also his solicitor to get it corrected. I was told from the Bar table that no report from Dr Hajbabaie had been produced. The first thing to note is that Mr Simpson’s Affidavits barely mentioned his right shoulder injury. Yet the notes clearly show he went to Dr Hajbabaie for it on numerous occasions, was prescribed Panadeine Forte and referred for five physiotherapy sessions in respect of the right shoulder. Further, Dr Hajbabaie was aware of the left elbow as a separate injury, as this was noted in his first consultation on 18 October 2021.[37] I consider then Dr Hajbabaie is unlikely to have made the mistake ascribed  to him. I do not accept Mr Simpson’s evidence and consider it was given in an attempt to bolster his complaints of ongoing severe left elbow problems. However, I also note that as of October 2021, Dr Hajbabaie was prescribing Panadeine Forte for left elbow pain and from late May 2022 that resumed. Thus, while this finding affects the reliability of Mr Simpson’s evidence on this point, it does not operate to completely undermine all his evidence, such as the fact that he does occasionally take Panadeine Forte for the left elbow injury. To summarise then, I find in respect of loss of earning capacity that:

·        Mr Simpson has a residual capacity to work in static security; he has a proven ability to retrain and upskill to obtain the relevant licences and computer skills. I accept the evidence of Dr Banda and Dr Wilkins that this capacity for static security work can be deployed full time after a short period of vocational training and scaling up of work hours.

·        This medico-legal opinion of specialist occupational physicians is broadly in line with the only treating doctor to have reported in the last three years, being Dr Taverner.

·        The unreliability of Mr Simpson’s evidence as to his capacity to retrain, particularly as to his English and ability to perform basic computer functions.

[36]PCB 34

[37]        DCB 161

36In the absence of a treating doctor’s report, I am reinforced in my view of accepting Dr Banda and Dr Wilkins.

37For all these reasons I deny Mr Simpson’s claim for a loss of earnings capacity certificate.