Singh v Polar Fresh Cold Chain Services Pty Ltd
[2019] VCC 1242
•23 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-02301
| MANVIR SINGH | Plaintiff |
| v | |
| POLAR FRESH COLD CHAIN SERVICES PTY LTD | Defendant |
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JUDGE: | His Honour Judge Misso | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2019 | |
DATE OF JUDGMENT: | 23 August 2019 | |
CASE MAY BE CITED AS: | Singh v Polar Fresh Cold Chain Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1242 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – lower back injury – concession that the pain and suffering consequences are “serious” – whether the plaintiff had a capacity to return to suitable employment – whether his capacity to return to suitable employment was for part-time or full-time work – identification of the occupation which constituted suitable employment – calculation of income which the plaintiff could earn in suitable employment
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: The plaintiff is granted leave to bring a proceeding for both pain and suffering and loss of earning capacity
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J N Purcell SC with Mr P A Czarnota | Shine Lawyers Pty Ltd |
| For the Defendant | Mr B R McKenzie | Minter Ellison |
HIS HONOUR:
Introduction
1 The plaintiff suffered an injury to his lower back in the course of and within the scope of his employment with the defendant on 24 August 2015.
2 The defendant conceded that the pain and suffering consequences of the impairment of the function of the plaintiff’s lower back are “serious”. It denied that the loss of earning capacity consequences are “serious”. The focus of the application was directed to the plaintiff’s retained capacity for suitable employment.
3 Mr D Purcell SC appeared with Mr P Czarnota of counsel for the plaintiff. Mr B McKenzie of counsel appeared for the defendant.
Some relevant background
4 The plaintiff was born in India in January 1978. He is now forty-one years of age. He is a married man with two children, who are about eight and three years of age.
5 He completed his secondary schooling in India. He entered a university and obtained a Bachelor of Arts degree. He migrated to Australia in 2002. He entered Latrobe University and completed a Diploma of Business in 2002. He then entered Central Queensland University and obtained a Masters in Accounting.
6 The plaintiff was interviewed by Mr Janides of AMS Consulting Group (“AMS”) for the purpose of his preparation of a vocational assessment report dated 11 October 2018. Mr Janides obtained a history from the plaintiff of his employment prior to 24 August 2015:
· 2002-2005 – work as a farmhand, security guard, warehousing assistant and kitchenhand.
· 2005-2007 – work as a picker and packer at a distribution centre.
· 2011-2012 – work as a tax accountant with TaxSmart accountants preparing taxation returns, lodging them electronically, undertaking data entry and customer service.
· 2013-2015 – work as a tax accountant with IQ Tax accountants working on an on-call basis preparing taxation returns, lodging them electronically, undertaking data entry and customer service.
7 This is in contrast to what the plaintiff deposed to in his first affidavit sworn 30 November 2017. He said that after he completed his last level of university studies that he had applied for numerous jobs in the accounting field, “but was knocked back because I had no experience”. That is clearly wrong, and the plaintiff conceded as much under cross-examination. His previous experience in working in the accounting field became relevant for reasons I will refer to later.
The injury and its consequences
8 There was little in the medical evidence which was at all controversial. Indeed, neither the plaintiff nor the defendant referred me to any of the medical evidence except the evidence of medical practitioners who expressed opinions relevant to the plaintiff’s retained capacity for suitable employment. It is for that reason I propose to only give a short summary of the medical evidence.
9 The plaintiff sought medical treatment, complaining of pain in his lower back and right leg. He underwent some conservative treatment before having an MRI scan which demonstrated a large right-sided paracentral L5-S1 disc prolapse. He was referred to Mr Wong, neurosurgeon, who made that diagnosis, and recommended that the plaintiff undergo surgery.
10 Mr Wong performed surgical amelioration of the disc prolapse, performing a right-sided L5-S1 laminectomy, discectomy and rhizolysis. The plaintiff obtained relief from the lower back pain and right leg pain from the surgery; however, he continued to experience lower back pain, and then a return of right leg pain. He returned to see Mr Wong, who referred him to have another MRI scan in July 2017. He considered that it did not demonstrate any neural compression. He advised the plaintiff to have nonsurgical treatment in the form of physiotherapy and treatment for chronic pain.
11 The plaintiff has been examined by a number of medico-legal consultants expert in the treatment of spinal conditions. There is little controversy in their evidence. Mr Wallace, neurosurgeon, Mr Carey, orthopaedic surgeon, and Mr Dooley, orthopaedic surgeon, accepted that the plaintiff had suffered a large right-sided paracentral L5-S1 disc prolapse which required surgical amelioration. Where there is some difference in opinion is whether there had been a recurrence of the prolapse, and whether the plaintiff was suffering from frank sciatic pain.
12 Mr Wallace considered that there may have been a recurrence of the prolapse. Mr Carey was uncertain, and Mr Dooley does not appear to have accepted that a recurrence occurred. What Mr Wallace and Mr Carey appear to accept is that their examination results demonstrated some neurological deficit consistent with the plaintiff suffering sciatic pain. At first Mr Dooley appeared to doubt that, but when confronted by the examination results adduced by Mr Carey, he appears to have agreed that the neurological deficit he found was probably associated with the prolapse.
13 The plaintiff complains of an actively symptomatic lower back condition accompanied by right-sided sciatic pain. The medical evidence confirms that there is an organic basis for the complaints he makes of lower back pain, and I think there is sufficient evidence to satisfy me that it is more likely than not that he has a neurological deficit responsible for his right-sided sciatic pain.
The Plaintiff’s return to work
14 Following surgery, the plaintiff returned to work in May 2016 on light duties, comprising clerical work. He returned to what he described as “floor work”. He stopped work altogether in late 2017 because of the pain he was experiencing in his lower back and right leg.
15 The plaintiff undertook a training course through an organisation known as IPAR. He returned to alternative work in about May 2018 with H&R Block, working four hours per day over five days per week. He worked as an accountant. He stopped working with that employer in September 2018 because he had to drive from where he lives in the suburb of Truganina to Mitcham. It took about ninety minutes each way to get to and from work. The work was in a sense seasonal. The plaintiff expected that his time with that employer would have come to an end after the demand for end of year taxation returns reduced.
16 The plaintiff then obtained employment with TTS & Associates in late September 2018. He worked as an accountant. He expected to earn $50,000 gross per annum. He was searching for other employment at the same time. He understood that another job option with another accounting firm would have paid him $45,000 gross per annum.
17 The plaintiff persevered with his work with TTS & Associates. He was not coping with full-time work because of lower back pain and right leg pain, and in particular, he was struggling to sit for long periods of time. He then set out to find work which was more suitable. He stopped working altogether in October 2018, and has not returned to any gainful employment since.
18 The plaintiff submitted that he could probably work part-time in accounting and clerical work. I will return to what the plaintiff said about that later.
Pain and suffering consequences
19 The plaintiff submitted that it is relevant to assess his capacity to return to suitable employment through the lens of the pain and suffering consequences of the impairment of the function of his lower back.
20 The following is a synthesis of the pain and suffering consequences which the plaintiff has referred to in his four affidavits:
· Significant ongoing lower back pain.
· Right leg pain extending to the right ankle. With numbness in the right leg, cramping in the calf and swelling in the ankle.
· Interference with sleep.
· Interference with sexual activity.
· An inability to go jogging, attend the gym and engage in fitness activities.
· Interference with the ability to play with his children.
· Interference with the ability to travel to his homeland of India.
· Interference with engaging in social activity with friends and family.
· Limitation on driving to about 45 minutes.
· Limitation on sitting and standing to 30 to 45 minutes before the onset of increased lower back pain.
· Limitation on dressing, for example putting on jeans and socks.
· Limitation on undertaking domestic tasks such as cooking, cleaning, caring for his garden and doing general work around his home.
· The need for medication – use of 300-milligrams of Lyrica – 100 milligrams in the morning and 200 milligrams at night; use of a Norspan seven-day duration patch, and medication to assist him with sleep.
· Interference with concentration due to the consumption of medication.
21 The defendant submitted that the plaintiff’s limitations on sitting, standing and with his general mobility were as not bad as portrayed by the plaintiff. Furthermore, the defendant submitted that the plaintiff could work as an accountant, if not full time, at least for a significant number of hours per week, permanently.
Capacity for suitable employment
22 Mr Carey, orthopaedic surgeon, baulked at offering any opinion on the plaintiff’s capacity for suitable employment. He considered that those questions were better dealt with by an occupational physician. Neither Mr Wallace nor Mr Dooley felt constrained in offering an opinion on the plaintiff’s capacity for suitable employment.
23 I think the better approach is to pay due regard to the opinions of Mr Wallace and Mr Dooley, but to be guided by the opinions of the occupational physicians.
24 Although, Dr Ali, general practitioner, is not an occupational physician, he nonetheless occupies an important position in the treatment of the plaintiff. He is a general practitioner at a practice which the plaintiff has attended from a time not long after he first suffered the injury. He would, therefore, be very well acquainted with the injury suffered by the plaintiff, the treatment he has had, and his progress.
25 Dr Ali provided the plaintiff with medical certificates. Two of them were tendered into evidence. The first is dated 6 November 2018. He certified the plaintiff as having a capacity of suitable employment from 29 October 2018 to 26 November 2018. In a further certificate dated 4 July 2019, he certified the plaintiff as having no capacity for employment from 1 July 2019 to 29 July 2019. The background circumstances to the provision of that medical certificate are noted as being a recent flare up of pain and a reduction in the plaintiff’s mood. In the latter certificate, he described the plaintiff’s physical function as follows:
· Can sit with modifications
· Can stand/walk with modifications
· Cannot bend
· Cannot squat
· Cannot lift.
26 Dr Ali’s treatment plan, referred to in the last medical certificate, included physiotherapy treatment, exercises and stretches, and pain relief as needed.
27 Mr Wallace’s opinion was similarly pessimistic. He understood that the plaintiff was not working at the time when he last examined him on 25 June 2019. The plaintiff informed him of his accounting qualifications and an interest in being an Uber driver. He considered that the plaintiff would be able to return to some form of light duties; however, he considered that the plaintiff was at a higher risk than normal of having to cease doing that sort of work because of an anticipated deterioration in his condition. He also considered that there was a possibility that the plaintiff would require further surgery.
28 Mr Dooley understood that the plaintiff was working with an accounting firm in Ascot Vale (TTS & Associates) when he examined him on 24 September 2018. He considered that the plaintiff was fit to continue working in that capacity. He was subsequently provided with a vocational assessment. He was asked whether the jobs identified in that assessment of accountant, accounts clerk, customer service officer and administrator were suitable employment for the plaintiff. He considered that the plaintiff had the physical capacity to undertake each of those forms of employment full time. He repeated that opinion after re-examining the plaintiff on 2 July 2019.
The Defendant’s case – capacity for work
29 The logical starting point is to set out the high point of the defendant’s case, which is that the plaintiff is capable of working full time in one of four occupations. The occupations and the income are set out in the following table:
Occupation Gross Earnings Accountant $55,839 to $83,410 gross per annum
OR
$27.28 to $42.44 per hour
Accounts Clerk $45,935 to $59,570 gross per annum
OR
$23.79 to $28.96 per hour
Customer Service Officer $48,593 to $60,917 gross per annum
OR
$23.13 to $28.50 per hour
Administrator $48,000 to $60,000
OR
$21.00 to $26.08 per hour
30 The occupations and the income ranges were extracted from a report of AMS. The defendant also extracted the actual income earned by the plaintiff with former employers set out in the following table:
Occupation Gross Earnings H&R Block Assuming a 40-hour week at $26.61 gross per hour = $1,064.40
Annualised = $55,348.80
OR
Assuming a 38-hour week = $1,011.18
Annualised = $52,581.36
TTS & Associates Assuming a 40-hour week at $25.57 gross per hour = $1,022.80
Annualised = $53,185.60
OR
Assuming a 38-hour week = $971.66
Annualised = $50,526.32
31 The defendant submitted that I should accept the evidence of Dr Yong, occupational physician, that the plaintiff is now capable of full-time employment. Dr Yong last examined the plaintiff on 15 May 2019. He was specifically asked to consider whether the plaintiff had the capacity to work as a bookkeeper, accounts clerk, taxation accountant, customer service representative, administration assistant, forklift driver and pick-packer. Of those occupations, the defendant chose only the four referred to in the first table as amounting to suitable employment.
32 Dr Yong considered that the plaintiff could initially work half of full weekly hours, and after three to four months he could aim at increasing his hours to full-time hours. The anticipated three to four months would take the plaintiff to August/September 2019.
The Plaintiff’s creditworthiness
33 The defendant submitted that there were aspects of the plaintiff’s evidence which were so unsatisfactory that they undermine his credit to the extent that I should be disinclined to accept his evidence that he has a significantly reduced capacity for suitable employment.
34 There were three issues in particular relied on by the defendant. They were – the plaintiff’s evidence that his weight had increased since he suffered injury; steady reduction in his reported capacity to sit, stand and to otherwise be mobile, and a dramatic reduction in his stated capacity to work from a partial capacity to no capacity as evidenced in the last medical certificate provided by Dr Ali.
35 Under cross-examination, it was put to him that his evidence was contrived in order to give the appearance that he is significantly incapacitated for work to suit the case he wanted to present to the Court. The plaintiff denied engaging in that conduct. I will deal with each of those attacks on his creditworthiness in the same order that I have summarised them.
36 I am not persuaded that there is much in the issue relevant to the plaintiff’s weight. The defendant relied upon the plaintiff’s weight recorded by Mr Troy of 99 kilograms. It also referred to history recorded by Dr Yong that the plaintiff told him that his weight increased by 30 kilograms since he suffered injury. Under cross-examination, the plaintiff said that he was around 80 to 82 kilograms before he suffered injury, and is presently 110 kilograms.
37 There is obviously a difference between the plaintiff’s recorded weight, the history taken by Dr Yong and his own evidence. On the evidence of Mr Troy and Dr Yong, the plaintiff has increased his weight by about 10 kilograms, but on the plaintiff’s evidence, it is close to 30 kilograms. I do not accept that the plaintiff set out to embellish his case by referring to significant weight gain. I rather think that this is a product of the plaintiff giving estimates when asked, which inevitably carry an inherent likelihood of miscalculation. I think that is probably the same relevant to the plaintiff’s estimate of his physical tolerances.
38 I am not persuaded that the different estimates of the plaintiff’s physical tolerances are significantly different when a comparison is made of the occasions when he has been asked by examining medical practitioners to give estimates. As I have already observed, these are estimates given by the plaintiff which inevitably carry an inherent likelihood of miscalculation.
39 The defendant submitted that I should accept the plaintiff’s tolerances recorded by Dr Yong, which are as follows:
· Sitting - 25-30 minutes
· Standing - 25-30 minutes
· Walking - 30 minutes
· Driving - 30 minutes.
40 The plaintiff was asked how he made estimates of these tolerances. He gave an example of his method of making such estimates. He stood in a train on the morning of the hearing for about 45 minutes before needing to sit for 45 minutes. What I think all of this amounts to is that the plaintiff has probably given unreliable accounts of those tolerances, but what is certain is that he has reduced physical tolerances. None of the medical practitioners who asked the plaintiff to make such estimates has doubted that the plaintiff has such a reduced physical tolerances.
41 Lastly, what needs to be said about the medical certificate declaring that the plaintiff is unfit for work is that it was provided in the setting of the plaintiff having suffered a flare up, resulting in Dr Ali certifying that the plaintiff had no capacity for work for a defined period of time. It is not a medical certificate declaring that the plaintiff has no capacity for suitable employment for the foreseeable future. It must be seen in the context in which it was provided.
42 I am not persuaded that the attack on the plaintiff’s creditworthiness has any merit. I think the plaintiff gave his evidence in a reasonably straightforward and credible way. I accept his evidence relevant to his pain and suffering consequences, and also in relation to his physical tolerances.
Capacity for suitable employment
43 I will now turn to the competing evidence relevant to the plaintiff’s capacity for suitable employment.
44 The plaintiff was referred to Advance Healthcare. Dr C-Ong is the medical director of Advanced Healthcare. He first saw the plaintiff on 22 January 2019. He recommended that the plaintiff participate in a multidisciplinary pain management program. The plaintiff entered the program in March 2019 and was discharged on completion of it in June 2019.
45 Dr C-Ong considered that the following restrictions applied to any work which was considered suitable for the plaintiff:
· lifting under 5 to 7.5 kilograms
· no prolonged positions
· no repetitive duties
· no overhead or floor level floor work; and
· no bending or twisting duties.
46 Dr C-Ong concluded that the plaintiff had a capacity for office-based or sedentary-type duties or light manual duties three to five days per week at 4 to 6 hours per day with breaks. That gives a range of 12 hours at a minimum and 30 hours at a maximum, per week.
47 Dr Slesenger, occupational physician, examined the plaintiff on 21 January 2019 and again on 1 July 2019. On the first occasion he examined the plaintiff, he was asked to consider whether any of the forms of employment referred to in the first table amounted to suitable employment.
48 Like Dr Yong, Dr Slesenger was provided with a significant volume of medical reports which enabled him to understand the nature and extent of the injury suffered by the plaintiff. It was his overall impression that the plaintiff’s prognosis was guarded. He considered that the plaintiff was likely to be left with a residual impairment which would impact negatively on his capacity to return to suitable employment. In addressing the forms of employment referred to in the first table, he noted that the plaintiff’s symptoms were variable and unpredictable. When accompanied by the side effects of medication and the plaintiff’s residual functional limitations, he concluded that it was unlikely that the plaintiff would be able to return to any role for which he has suitable training and experience. That must include all of the forms of employment referred to in the first and second tables.
49 Dr Yong considered that the plaintiff could work within the following restrictions:
· avoidance of repeated bending and twisting of the back
· avoidance of repeated firm pushing and pulling tasks
· avoidance of lifting more than 5 kilograms on a repeated basis
· varying posture regularly between sitting, standing and walking; and
· commencing work on an initial reduction in working hours.
50 It was on the basis of what he understood the plaintiff’s tolerances to be (summarised above), and the restrictions which he thought were appropriate, that he considered that the plaintiff could work in each of the occupations referred to in the first table.
51 The proviso Dr Yong put on the plaintiff’s return to work was that he have a graduated return to work program, initially working half of weekly working hours and then increasing to full time over three to four months. Dr Yong was asked to reconsider his opinion, and in particular, after he was provided with reports of Dr C-Ong and Dr Slesenger. He saw nothing in their opinions which drove him to reconsider his initial opinion of the plaintiff’s capacity to return to suitable employment.
52 I prefer the opinion of Dr C-Ong over the opinions of Dr Slesenger and Dr Yong for the following reasons.
53 Firstly, the plaintiff has had invasive surgery. I accept that he suffers persisting pain; reduction in his capacity to function; reduction in his capacity to engage in social, domestic and recreational activities, and needs a significant load of medication to treat his experience of daily pain.
54 Secondly, there is a strong body of evidence of surgeons who specialise in spinal treatment who accept that there is a sound basis to conclude that the complaints made by the plaintiff are verifiable by the nature and extent of the injury, and in particular, the neurological deficit evident in his right lower limb. That body of evidence fortifies me in concluding that I can accept the plaintiff’s evidence of the consequences of the impairment of the function of his lower back and right leg.
55 Thirdly, the plaintiff’s history is one of involvement in a fairly basic level of accounting. My impression is that it was largely unsophisticated accounting work, largely limited to the preparation of taxation returns and associated accounting. Historically, that is the work he had undertaken both before he suffered injury, and subsequently, and therefore, I accept that it is the type of work which constitutes suitable employment.
56 Fourthly, Dr C-Ong, as the medical director of Advance Healthcare, has observed the plaintiff over a significant period of time while the plaintiff was participating in the multidisciplinary pain management program. I think that puts him in a particularly good position to make a judgement about the nature and extent of the plaintiff’s lower back pain, and right leg pain; the extent of the impairment of the function of his lower back and right leg; the plaintiff’s resulting incapacity for work, and, most importantly, what residual capacity the plaintiff has which he can exploit in suitable employment.
57 Therefore, I prefer the opinion of Dr C-Ong, that the plaintiff could return to suitable employment between 12 hours at a minimum and 30 hours at a maximum. The plaintiff submitted that I should apply Dr C-Ong’s assessment to the forms of employment referred to in the two tables with those forms of employment representing suitable employment.
The arithmetic calculations
58 The defendant submitted that the comparator in the arithmetical formula is $81,779 which is the gross earnings for the year ending 30 June 2015. The plaintiff submitted that it should be $86,451 for the year ending 30 June 2017. Both are within the three years “without injury” and the three years “with injury”.
59 The only form of employment which would see the plaintiff fail is if full-time employment as an accountant is suitable employment. The highest hourly rate contended for by the defendant is $42.44 per hour. When annualised and based on 38 hours per week, this is $83,861.44. When reduced to 60 per cent, is $50,316.86.
60 The plaintiff submitted that I should not work on the basis that the plaintiff could work as an accountant, but in the forms of employment which historically were what he had pursued both before he suffered injury and subsequently. If the figures are calculated in that way at 30 hours per week, then the plaintiff has succeeded in proving the requisite degree of loss of earning capacity.
61 To demonstrate the latter conclusion with certainty I think it is fair to make a comparison with the work the plaintiff undertook with H&R Block. The gross hourly rate is $26.61. For a 30-hour week annualised is $41,511.60. The other occupations followed by the plaintiff, and those provided by AMS approximate to that annualised figure.
62 I have undertaken the relevant comparison by reference to $81,779.00. The plaintiff, on the other hand, submitted that I should make the relevant comparison by reference to $86,451.00, which it submitted most fairly reflects the plaintiff's earning capacity. The same result is achieved whichever figure is used, but obviously the plaintiff more easily succeeds using $86,451.00. I should add that I consider the latter figure to be entirely reasonable as most fairly reflecting the plaintiff's earning capacity.
Conclusion
63 Therefore, I grant the plaintiff leave to bring a proceeding at common law for pain and suffering and for loss of earning capacity.
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