Singh v Victorian WorkCover Authority
[2024] VCC 727
•24 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-04627
| MANPUNEET SINGH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 April 2024 | |
DATE OF JUDGMENT: | 24 July 2024 | |
CASE MAY BE CITED AS: | Singh v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 727 | |
REASONS FOR JUDGMENT
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the spine – worker under 26 years of age – loss of earning capacity – pain and suffering conceded
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Jarvis v Woolworths Ltd [2012] VCC 1329; Sharma v Chandler Personnel Services Pty Ltd [2018] VCC 1658; Margriplis-Hampton v Spendwatt Pty Ltd [2022] VSCA 15; New South Wales v Moss (2000) 54 NSWLR 536; Bennetts v Central Highlands Group Training Incorporated, Alstom Australia Limited & VWA [2009] VCC 525; Luhan v Tailored Workforce Pty Ltd [2009] VCC 1458; Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015; Debono v Victorian WorkCover Authority [2022] VCC 1317; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; Berthelot v Fleetweld Pty Ltd [2015] VCC 1453; Richter v Driscoll & Ors (2016) 51 VR 95; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Acir v Frosster Pty Ltd [2009] VSC 454
Judgment: Leave granted for leave to bring proceedings for damages for loss of earning capacity.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Mr M Fogarty | Zaparas Lawyers |
| For the Defendant | Mr A J Mc Moulds KC with Ms V Katotas | Hall & Wilcox |
HIS HONOUR:
1The plaintiff, Manpuneet Singh, was twenty-five years old when he injured his lower back in the course of his employment in Bendigo as a machine operator with Elect Performance Group Pty Ltd (“the employer”).
2Mr Singh seeks leave to bring common law proceedings pursuant to ss335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“Act”), under subparagraph (a) of the relevant definition of “serious injury” for pain and suffering and loss of earnings consequences, being for the permanent serious impairment or loss of a body function.
3The body function relied upon is the lumbar spine.
4It is not in dispute that Mr Singh suffered a compensable injury to the lumbar spine, and no longer has capacity for employment in his pre-injury duties as a machine operator.
5The Victorian WorkCover Authority (“VWA”) also conceded at the outset of the hearing that his pain and suffering consequences are serious in the circumstances of Mr Singh requiring discectomy surgery on 5 April 2022, and his ongoing discogenic pain.
6The issue is whether the plaintiff has suffered, and will continue to suffer permanently, a sufficient loss of earning capacity to be granted leave to bring proceedings for loss of earnings.
7In serious injury applications, the credit of the applicant is of great importance.[1]
[1]Johns v Oaktech Pty Ltd [2020] VSCA 10
8There are no issues of credit in this case. I accept Mr Sigh as a witness of truth, who endeavoured to give his evidence in a frank and forthright manner, and I accept his evidence.
Statutory framework
9In order to be granted leave to commence proceedings for damages for economic loss, a worker must satisfy the requirements of the Act in relation to his loss of earning capacity. For a claim in relation to impairment or loss of a body function, ss325(2) provides:
“(a)…
(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c) an impairment or loss of a body function or a disfigurement is not to be held to be serious for the purposes of section 335(2) unless—
(i) the pain and suffering consequence; or
(ii) the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
…
…
(e) if a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (1), the Authority or self-insurer must not issue a certificate under section 335(2)(c), and a court must not grant leave under section 335(2)(d), on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i) at the date of a decision under section 335(2)(c) or at the date of the hearing of an application under section 335(2)(d), the worker has a loss of earning capacity of 40 per cent or more, measured (except in the case of a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and
(ii) the worker (including a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;
(f) for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing—
(i) the worker's gross income from personal exertion (expressed at an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii) the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;
(g) a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining—
(i) has; or
(ii) after rehabilitation or retraining, would have—
a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
… .”
10It is common ground that:
(a) pursuant to ss325(2)(e) of the Act, Mr Singh must establish:
(i)he has a loss of earning capacity of 40 per cent or more as at the date of the hearing;
(ii)he will, after the date of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;[2] and
[2] Section 325(2)(e) of the Act
(b) as Mr Singh was under the age of 26 years at the date of the injury, the formula for assessing loss of earning capacity in ss325(2)(f) does not apply.
11Mr Mighell KC, for Mr Singh, submitted that in the case of a worker under 26 at the date of injury, common law principles apply in the assessment of the probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life.[3]
[3]See Legislative Assembly, Accident Compensation (Common Law and Benefits) Bill, Second Reading Speech, 23 May 2000, the Honourable M M Gould, Minister assisting the Minister for WorkCover (“Second Reading Speech”)
12I accept that submission. Mr Moulds KC, for the VWA, conceded as much.[4] It is well established[5] that in determining whether a loss of earning capacity which will be productive of financial loss of 40 per cent or more has been established by a worker under the age of 26, common law principles are to be adopted.
[4] T66 L20
[5]See for example Sharma v Chandler Personnel Services Pty Ltd [2018] VCC 1658, at paragraphs [70] and [73]; Margriplis-Hampton v Spendwatt Pty Ltd [2022] VSCA 15, at paragraph [1]
13The usual common law principles have been expressed in successive County Court decisions since Jarvis v Woolworths Ltd[6] (“Jarvis”). In Jarvis, his Honour Judge Brookes referred to New South Wales v Moss[7] (“Moss”) where Heydon JA identified the common law principles used to assess the loss of earning capacity of a plaintiff injured in a school accident at the age of fourteen years.[8] I adopt Judge Brookes’ summary of those principles as follows:
(a) evidence of past economic loss is some, though not conclusive, evidence of reduced earning capacity;[9]
(b) it is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what he is likely to learn after it;[10]
(c) where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work he can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment on a percentage basis or otherwise of the value of the lost capacity;[11]
(d) the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss. It is an issue of calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities and not proof of probabilities;[12]
(e) the mere fact that the quantum of damage is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum;[13] and
(f) the task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.[14]
[6] [2012] VCC 1329
[7](2000) 54 NSWLR 536
[8] Moss at paragraphs [64]-[87]
[9] Moss at paragraph [64]
[10] Moss at paragraph [66]
[11] Moss at paragraph [69]
[12] Moss at paragraph [71]
[13] Moss at paragraphs [72] and [74]
[14] Moss at paragraph [87]
14What is required is not a simple assessment of loss obtained by applying common law principles; rather, common law principles are applied in determining whether or not a 40 per cent loss of earning capacity has been proven.
15The VWA submits that:
(a) as a matter of construction, Mr Singh must nevertheless satisfy ss325(2)(g) of the Act;
(b) the medical evidence establishes that Mr Singh is able to engage in “suitable employment” as defined in the Act at either full-time or close to full-time hours after engaging in retraining; and
(c) evidence as to the availability of employment is irrelevant to the Court’s assessment of Mr Singh’s retained capacity for “suitable employment”.[15]
[15] See the definition of “suitable employment” in s3 of the Act
16In turn, Mr Mighell submitted that:
(a) ss325(2)(g) of the Act does not apply. In other words, the usual common law position prevails, without restriction;
(b) insofar as loss of earning capacity is concerned, the usual common law position would include consideration of the availability of employment;
(c) in assessing loss of earning capacity, the Court should assess the probable income from personal exertion which the plaintiff would have earned over the worker’s probable earning life; and
(d) on all of the evidence, taking into account a limited retained capacity to work in part-time employment, Mr Singh’s loss of earning capacity is greater than 40 per cent having regard to his probable “without injury” earnings as an engineer over the course of his life.
Background
17Mr Singh relied on his affidavits affirmed 6 April 2023, 18 March 2024 and 15 April 2024; and the affidavit of his wife, Neerajpreet Kaur Gill, affirmed 18 March 2024. Together with the tendered material, this evidence establishes the following factual matters.
18Mr Singh was born and raised in Punjab, India, and moved to Australia in February 2015.
19Between 2015 and 2019, Mr Singh completed a Diploma of Engineering Technology (Chisholm) and his Bachelor of Engineering Technology (majoring in mechanical and manufacturing engineering).
20In addition to employment as an engineer, Mr Singh explained that he was qualified to work under a mechanical engineer as a technician responsible for plant in factories or as part of a manufacturing process.[16]
[16] Transcript (“T”) 29
21When initially offered employment with the employer, Mr Singh was told it was a graduate engineer role. At the time, he was enrolled in a diesel mechanic certificate course to enhance his skills in maintaining machinery.
22Mr Singh wanted to work as an engineer, and thought it was a good opportunity. Consequently, he moved from Melbourne to Bendigo to start the job. He was then informed that there were no graduate engineer positions available, and he would need to start in a lower paid position as a machine operator with a view to eventually moving into a graduate role. Although unhappy about this, Mr Singh needed to support himself, and commenced employment on 29 June 2020. He was never offered a graduate engineer role by the employer.
23His duties included operating and maintaining a bale cutting machine, and a strapping machine used to compress and strap bales of hay for export. The work was heavy and repetitive.
24On 31 May 2021, he developed back and right leg pain at work while working on a strapping machine, and ceased work.
25On 5 June 2021, he returned to work with the employer on light duties, ceasing work again due to back pain in August 2021.
26On 16 August 2021, a CT scan of the lumbar spine showed a disc bulge/protrusion at L4-5.[17]
[17]Plaintiff’s Further Amended Court Book (“PCB”) 93
27On 14 October 2021, Mr Singh again returned to work with the employer on a graduated basis, initially for two hours a day, two days a week.
28An MRI scan of the lumbar spine on 4 March 2022[18] showed a large L4-5 disc protrusion causing severe central canal stenosis.
[18]PCB 94
29Mr Singh consulted neurosurgeon, Mr Yagnesh Vellore, on 23 March 2022, who performed L4-5 MIS laminectomy/discectomy surgery on 5 April 2022.
30After a period recovering at his sister’s home in Cranbourne, Mr Singh moved back to Bendigo and returned to work with the employer on a graduated basis, initially for two hours a day, two days a week, progressing up to a total of 32.5 hours per week. It was a “made-up role”, providing assistance to the occupational health and safety officer at the company, one or two days in the office and the balance working from home at his own pace. There were many periods when there was nothing to do.[19]
[19] Affidavit of the plaintiff affirmed 6 April 2023 at paragraph [37]; T44-45
31Mr Singh was admitted to Frankston Hospital overnight due to severe lower back pain on 13 September 2022. On 27 September 2022, a further MRI scan of the lumbar spine disclosed an L4-5 laminectomy with moderate broad disc protrusion at the L4-5 level, which produced a moderate impression on the thecal sac. The disc protrusion impinged on the budding L5 nerve roots on both sides and “may be a source of symptoms”.[20]
[20]PCB 96
32Mr Singh was eventually made redundant on 19 April 2023 and has not been able to secure work since, despite his engagement with rehabilitation provider, Work Able.
33Mr Singh’s evidence included:
“I have been assisted since about April 2023 by Work Able Consulting. I was referred to them by the Workcover insurer. I have seen them in Bendigo and more recently in Broadmeadows. I am currently seeing them once a week. Each week they apply for jobs for me. I believe they apply for about 5 jobs per week and this has been over the last 10 months.
I have been successful in getting about 4 or 5 phone or zoom interviews. They are aware that I have a back injury. On one occasion I had to attend a medical examination. I have not been offered any of the jobs. The jobs are part-time light jobs or jobs in admin or in a call centre.
I believe I have got very few interviews because I have not worked for one year, I am on Workcover and I have restrictions associated with my low back condition.”[21]
[21]Exhibit “A”, Further affidavit of the plaintiff affirmed 15 April 2024, at paragraphs [2]-[4]
34The interviews Mr Singh obtained through Work Able were for casual or part-time light work or clerical jobs in administration for 20 hours per week; a camera operator for 16 hours per week; and a call centre job (working from home) for possibly up to 35 hours per week.[22] He was unsuccessful in obtaining interviews for other roles applied for including as a quality compliance coordinator, a quality control officer, inventory controller, production supervisor and graduate engineer.
[22] T14-17
35He attempted to retrain as a mortgage broker, but was unable to complete the six-month online Certificate IV course because of back pain-related issues with concentration. He ceased after about three months of studying for around one hour a day, three days a week.
36He attempted work as a security guard at Woolworths but only lasted one day, again, because of his back pain.
37There is no evidence of any psychiatric basis for flare-ups of his pain which occur from time to time.
38Mr Singh:
(a) suffers from L4-5 severe stenosis secondary to acute L4-5 disc prolapse with persistent post-operative pain and L5 radiculopathy;
(b) continues to be afflicted with constant daily pain requiring strong pain prescription medication for back spasms three times a week; and for pain three times a week, Norflex and Celebrex respectively. He has recently been prescribed Norgesic medication, as the Norflex and Celebrex do not seem to be working;
(c) needs to lie down in bed most days because of back pain for up to one hour; and
(d) is restricted in his ability to sit or stand for prolonged periods.
39None of this is in dispute.
40I accept the evidence of Mr Singh as to the extent of his ongoing restrictions and the difficulties he has experienced in obtaining work that would otherwise be suitable for him, including difficulty concentrating due to his back pain.
Loss of earning capacity
Does ss325(2)(g) apply to a worker under the age of 26 years?
41I was referred to a number of judgments of this Court which consider whether a worker under the age of 26 must satisfy the requirements in ss325(2)(g). Some judges have held that paragraph (g) does apply,[23] others that it does not.[24] If paragraph (g) applies, the Court is required to disregard whether the work or the employment for which the plaintiff is currently suited is available and is of a type or nature that is generally available in the employment market.[25]
[23]Bennetts v Central Highlands Group Training Incorporated, Alstom Australia Limited & VWA [2009] VCC 525; Luhan v Tailored Workforce Pty Ltd [2009] VCC 1458; Campbell v Forktorque [2011] VCC 1016; Jarvis (supra) (noting Judge Brookes’ finding that a court can have regard to the availability of employment, at paragraph [22](iii)); and Treloar v VWA [2023] VCC 2251
[24]Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015; Sanderson v Woolworths Limited [2019] VCC 106; Moslimyar v Victorian WorkCover Authority [2020] VCC 444; Debono v Victorian WorkCover Authority [2022] VCC 1317; Simpson v VWA [2023] VCC 963
[25] See paragraph (b) of the definition of “suitable employment” in s3 of the Act
42I reject the VWA’s submission[26] that paragraph (g) applies to import the definition of “suitable employment” into the assessment of loss of earning capacity, and that, accordingly, the Court may not take into account evidence as to whether employment for which the plaintiff is currently suited is available.
[26]Citing Luhan v Tailored Workforce Pty Ltd (supra), and Bennetts v Central Highlands Group Training Incorporated, Alstom Australia Limited & VWA (supra), where her Honour Judge K L Bourke applied a narrow construction of the analogue provision to s325(2)(g) in the Accident Compensation Act 1985
43In Capper v Munday Sales Pty Ltd & Anor,[27] Judge Millane considered the issue. Her Honour found:
“I am unable to accept the defendants’ submission that, properly construed, paragraph (g) was intended to and does apply to this plaintiff. To do so would require the Court to ignore the clear intention of Parliament that the usual common law position prevails in respect to this category of worker by reintroducing, via this provision, among other things, the statutory formula for the assessment of the loss of earning capacity of a worker under the age of 26 at the time of injury.
Furthermore, I was not persuaded that, having enlivened the common law test as it relates to the assessment of loss of earning capacity, Parliament had also evinced an intention to restrict the factors relevant to the determination of the loss of earning capacity of a worker under the age of 26 at the time of the injury.”
[27] Supra at paragraphs [144]-[145]
44I agree with that reasoning. I further adopt the reasoning of her Honour Judge Robertson in Debono v Victorian WorkCover Authority:[28]
“In my view, Mr Debono is not required to discharge the onus as to capacity for suitable employment found in s325(2)(g) of the Act. Nor is he required to establish the reasonableness of his attempts to participate in rehabilitation and retraining. This is because the intention of Parliament in enacting s325(2)(e) of the Act was not to restrict the factors relevant to the determination of the loss of earning capacity of a worker under the age of twenty-six at the date of injury. Instead, it was intended that the usual common law position as to the assessment of loss of earning capacity applies and the Court may have regard to the probable income from personal exertion which a worker would have earned, but for the injury, over the worker’s probable earning life.
Having determined that common law principles apply to s325(2)(e) of the Act, as her Honour Judge Millane noted, imposing a requirement that a worker under the age of twenty-six years establish that he would not have a capacity for ‘suitable employment’ which would result in him earning more than 60 per cent of gross income from personal exertion, as determined in accordance with paragraph (f), had the injury not occurred, would reintroduce, via s325(2)(g), the statutory formula in s325(2)(f) for the assessment of the loss of earning capacity of a worker under the age of twenty-six at the time of injury. It would also have the practical result of restricting the factors relevant to the determination of the loss of earning capacity of a worker under the age of twenty-six at the time of injury contrary to the intention of the legislature.
The result is that in assessing loss of earning capacity of a worker under the age of twenty-six, what a worker was earning, was capable of earning or would have earned during the three-year pre and post-injury period is not relevant. Nor is the concept of suitable employment. Instead, the usual common law position as to the assessment of loss of earning capacity applies and the court may have regard to the probable income from personal exertion which a worker would have earned but for the injury over the worker’s probable earning life.”
[28] Supra at paragraphs [149] to [151]
45To that reasoning I would add that the task of statutory construction begins and ends with a consideration of the statutory text. The text must be considered in its context, which includes legislative history and extrinsic materials. Understanding context has utility if, and insofar as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text.[29]
[29]Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at paragraph [39]
46The text of ss325(2) reveals:
(a) pursuant to paragraph (e), a court must not grant leave under ss335(2)(d) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes the requisite loss of earning capacity of 40 per cent or more;
(b) paragraph (f) introduces a formula for measuring a worker’s loss of earning capacity at the date of the hearing, including by reference to gross “income from personal exertion”[30] the worker is capable of earning in “suitable employment”;[31]
[30] Defined in ss325(2)(a) of the Act
[31] Defined in s3 of the Act
(c) paragraph (f) has no application to a worker under 26 (see paragraph (e)(i));
(d) paragraph (g) was introduced at the same time as paragraph (e)(i);
(e) paragraph (g) provides that a worker does not establish the loss of earning capacity required by paragraph (b) if the worker has a capacity for any employment, taking into account –
(i)the worker’s capacity for suitable employment; and
(ii)participation in reasonable rehabilitation or retraining,
which, if exercised –
“… would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred”;
(f) the phrases –
(i)“taking into account the worker's capacity for suitable employment after the injury”; and
(ii)“earning more than 60 per cent of gross income from personal exertion”
in paragraph (g) in relation to loss of earning capacity are references to criteria in paragraph (f), a proposition confirmed by the following words, “as determined in accordance with paragraph (f)”; and
(g) in my view, paragraph (g) operates in conjunction with paragraph (f), and, accordingly, has no application to a worker under 26 years of age at the date of injury.
47The context of the purpose of the Act and its antecedents of providing adequate and just compensation to injured workers, reflected in the separate provision for workers aged under 26 in paragraph (e)(i), and the Second Reading Speech only serves to reinforce this construction.
48I find that the assessment of Mr Singh’s loss of earning capacity should be in accordance with common law principles.
49Many other County Court decisions reflect that the Court’s task in assessing loss of earning capacity of a worker under 26 years of age at the time of injury includes consideration of whether the plaintiff can obtain and retain work on a reliable and consistent basis, and that evidence of available employment may be considered.
50I respectfully endorse Judge O’Neill’s analysis in Berthelot v Fleetweld Pty Ltd:[32]
“… the common law principles mean that … a realistic assessment of the prospect of an actual job be taken into account, …
Mr Berthelot’s capacity for employment in the real world is significantly reduced because of his injury. He will face the usual prejudice an injured person faces in attempting to return to the workforce. … Realistically, his capacity for work is significantly reduced. While it is impossible to impose any precise mathematical formula to this assessment, I am satisfied that, as a result of injury, he has suffered a loss of earning capacity of more than 40 per cent. … .”
[32] [2015] VCC 1453 at paragraphs [66] and [67]
Pre-injury capacity for employment
51I am satisfied that Mr Singh’s likely earnings over his probable working life, but for his injury, should be based upon his qualification as an engineer. He appeared to me to be a motivated individual, content to work in a lesser role to further his experience. Mr Singh even worked as a diesel mechanic in order to improve his skills as an engineer.
52Ms Mary Oliver, human resources consultant with Flexi Personnel, provided an earnings report for Mr Singh dated 26 March 2024. Her evidence included that a fully qualified and experienced mechanical engineer in Australia is paid a current average salary range of between a median of $115,000 up to $160,000 per annum for experienced engineers. A fully qualified and experienced manufacturing engineer in Australia is paid a current average salary range of between a median of $110,000 up to $142,750 for an experienced engineer.
53I find Mr Singh’s maximum yearly earnings to be $135,000 as the fairest figure to adopt in this application. In order to succeed, Mr Singh must satisfy me that he is incapable of earning $81,000 gross per annum, being 60 per cent of $135,000.
Identified roles
54The VWA relied upon the following evidence in relation to potential employment options for Mr Singh:
(a) a Work Able labour market analysis dated 1 February 2024 and vocational planning report dated 12 May 2023, prepared by vocational consultants; and
(b) Recovre Vocational Assessment reports dated 16 February 2024 and 12 April 2024 prepared by vocational consultant, Robyn Willett, and occupational therapist, Janette Ash.
Evidence as to capacity for employment
55Treating neurosurgeon Mr Vellore referred Mr Singh to Dr Stiofan Conghalie, pain specialist physician and anaesthetist, for specialist pain management. In March 2023, Dr Conghaile reported that Mr Singh:
(a) should avoid physically demanding tasks and repetitive bending, twisting, lifting, carrying, pushing, pulling and repetitive squatting;
(b) does not have capacity for his pre-injury duties;
(c) has capacity for suitable employment:
“Yes. Mr Singh does have capacity for employment currently. Mr Singh is working part time as a health and safety officer. However, it is possible that he may suffer a re-injury. Indeed, the most recent MRI suggests that Mr Singh has already suffered from a recurrent disc protrusion/extrusion.
It is likely, in my opinion, that Mr Singh will have exacerbations of his pain in the future which is likely to compromise the consistency/reliability of his attendance at work.”[33]
“… Mr Singh … is working 26 hours per week as a health and safety officer, albeit suffering from pain during the course of his work. In my opinion, he does not have capacity for hours and duties above those hours and duties of his current role. His current role, from my understanding, protects him from physically demanding duties.
On balance of probability, this residual incapacity will continue into the foreseeable future in my opinion.
It is likely that the degenerative disc disease will evolve over time and there is a significant possibility that his work capacity will be further negatively impacted.”[34]
[33] Report of Dr Stiofan Conghaile dated 29 March 2023 at PCB 44
[34]Ibid at PCB 41
56General practitioner, Dr Saravanan Shanmugam, opined that Mr Singh could work a maximum of 35 hours per week, including the possibility of working from home, with the following restrictions:
(a) not sitting or standing continuously for more than 90 minutes, requiring brief rest intervals every 90 minutes;
(b) minimal bending, limited to one or two times per hour;
(c) avoidance of lifting, pushing, or pulling objects heavier than 7 kilograms; and
(d) limiting repetitive back movements, necessitating rest intervals every 45 minutes.[35]
[35] Reports of Dr Saravanan Shanmugan dated 26 May 2023 and 3 February 2024, PCB 52 and 55
57In November 2023, Mr Ash Chehata, orthopaedic surgeon, reported that Mr Singh has permanent significant and severe restrictions in pushing, pulling and loading through any movements of the back. Mr Chehata’s opinions included that:
(a) “at such a young age” he “would expect for him to return back to some form of full-time work”. Mr Chehata did not identify any particular employment beyond “an administrative role”, undertake any analysis of the physical requirements of such a role or otherwise set out his reasoning in any further detail;
(b) Mr Singh was likely to require retraining, for which he “certainly has the capacity”;[36] and
(c) the prognosis “is undoubtedly guarded in such a young individual requiring operative intervention and a seemingly poor response to surgical intervention”.
[36]PCB 60
58Dr Eman Awad, occupational health specialist, reported that Mr Singh is permanently medically restricted from pushing, pulling, lifting, carrying above 10 kilograms, bending, twisting, repetitive movements through his lumbar spine, walking on uneven ground and exposure to whole body vibration. Dr Awad opined that Mr Singh:[37]
“… is likely to be able to work maximally 25 hours per week, needing [a] recovery day in between. The nature of his symptoms are such that he is likely to experience recurrent flares impacting negatively his ability to attend work, leading to a higher than average sickness absence rate. This will affect his ability to work in [a] reliable and consistent manner.”
[37]Report of Dr Eman Awad dated 1 December 2023, at PCB 66
59From the roles identified in the Work Able and Recovre reports, Dr Awad considered suitable employment options for up to 25 hours per week included:
(a) project management assistant;
(b) call centre operator (engineering related), subject to regular rest breaks and a workstation assessment;
(c) mortgage broker (however, Mr Singh does not have the necessary qualifications for this role);
(d) as a mechanical engineering draftsperson (however, Mr Singh does not have a CAD qualification);
(e) a sedentary role as a hire controller (classified under clerical and administrative workers); and
(f) largely sedentary role camera operations security officer.[38]
[38] PCB 68; and supplementary report of Dr Awad dated 19 March 2024, PCB 71
60Dr Awad reported that the roles of quality control officer (manufacturing), estimator (engineering, manufacturing), production clerk and warehouse administrator are not suitable since these roles go beyond Mr Singh’s medical restrictions. He considered the role of estimator highly unsuitable since it would require Mr Singh to go on site visits which would entail walking on uneven ground and climbing unfinished structures such as ladders and scaffolding.[39] A motor vehicle parts interpreter was not a “first-choice recommendation" due to the manual handling component, and standing requirements of the counter sales role.
[39] PCB 68
61In his supplementary report dated 19 March 2024, Dr Awad reiterated his opinion that although Mr Singh “has the capacity to undertake a sedentary role, the nature of his underlying condition is such that he is likely to continue to experience recurrent flares, which may impact on his ability to attend work in a relevant and consistent manner”.[40]
[40] PCB 71
62Mr Mohammad Awad, neurosurgeon, reported permanent restrictions on any pushing, pulling, bending, twisting, lifting, repetitive lumbar spine movement and any prolonged sitting or standing. In terms of capacity for suitable employment, Mr Awad opined:[41]
“… He does, in theory, have some capacity for sedentary work on a part-time basis if a suitable job was available. In practice, when taking into account multiple factors, including his age, education, training, skills, work experience, as well as the nature and severity of his ongoing spinal condition, it might be very difficult for him to procure alternative, suitable employment, and if he did, it is likely to be difficult for him to carry this out in a consistent and reliable fashion.
…
[41] Report of Mr Mohammad Awad dated 19 March 2024, at PCB 75
Noting the nature of his injury, I do believe that he is at increased risk of further degenerative changes and accelerated degenerative changes by way of his injury and subsequent surgery. He is likely to require further surgery … .”
63Ultimately, Mr Awad expressed the view that Mr Singh had not retained any residual capacity for suitable employment.[42]
[42] PCB 76
64In occupational physician Dr Michael Lucas’s opinion, Mr Singh has capacity to return to his pre-injury work hours in suitable duties, noting restrictions:
“I would recommend maintaining appropriate back care awareness - limiting prolonged sitting, prolonged standing, prolonged abnormal postures and the undertaking of unfamiliar loading tasks, both at home and at work. I would encourage maintenance of appropriate manual handling limitation awareness and the maintaining of a degree of cardiovascular fitness commensurate with a required/desired activity participations.”[43]
[43]Defendant’s Further Amended Court Book (“DCB”) 11
65Dr Clayton Thomas, consultant in rehabilitation and pain medicine, opined that Mr Singh had retained a capacity for suitable employment which is semi-sedentary for no more than 35 hours per week. Dr Thomas agreed with the restrictions reported by Mr Singh’s treating general practitioner, Dr Shanmugam, but stated:[44]
“I would add that all lifting be between waist and chest height. All back movements between waist and chest heights. Occasional bending would be to pick up objects which were not heavy and could be done in an ergonomic manner. … .”
[44] Report of Dr Clayton Thomas dated 29 November 2023, at DCB 33
66Of all the examining specialists and treating doctors, only Dr Ashish Jonathan, consultant neurosurgeon, believes that Mr Singh has a partial capacity to work in his pre-injury duties and hours. I reject that opinion. Mr Singh’s previous role as a machine operator involved heavy, repetitive duties. Mr Jonathan also stated that the plaintiff's back condition is non-compensable, being purely related to the degenerative disease in his lumbar spine. That evidence is against the preponderance of the medico-legal evidence. I prefer the evidence of the treating doctors, including surgeon Mr Vellore. I note the application was conducted by the VWA on the basis that the injury was compensable.
67In Dr Jonathan’s opinion, Mr Singh could work full-time with the following restrictions:
(a) lifting with knees (with a straight back) not more than 25 pounds [11 kilograms] up to 15 times per hour;
(b) squatting up to 16 times per hour;
(c) standing or walking with a 10-minute break at least every one to two hours;
(d) sitting with a 10-minute break every one to two hours;
(e) avoid extremes of flexion, extension or twisting; and
(f) driving car or light truck up to a full work day.[45]
[45] Report of Dr Ashish Jonathan dated 13 December 2023, at DCB 45
68Dr David Barton, consultant occupational physician, reported that Mr Singh has capacity to perform all of the jobs detailed in the vocational assessment reports of Work Able dated 12 May 2023 and 1 February 2024 and Recovre dated 16 February 2024, with only minor restrictions in weight lifting limits, and avoiding awkward or constrained postures.[46]
[46] Report of Dr David Barton dated 29 February 2024, DCB 47 and 50-51
69Mr Singh was cross-examined on the following roles that he might be capable of undertaking:
(a) estimator in engineering and manufacturing – Mr Singh agreed that subject to further training, he is suitably qualified for the role of estimator, however, he would have difficulty complying with the job requirements of standing, walking and frequent site visits. He would not be able to visit sites reliably, and would be unable to work at an office desk unless there was a bed where he could lay down and rest;[47]
(b) project management assistant – Mr Singh agreed that, with training, he could perform various aspects of the role of project management assistant, but would not be able to attend building sites since he is unable to walk on uneven surfaces,[48] and would need the ability to lie down at work if he is particularly having a bad day;[49]
(c) mortgage broker – Mr Singh has previously taken a mortgage broker course but was unable to complete its requirements due to concentration difficulties caused by his back pain; and
(d) spare parts interpreter – Mr Singh agreed that he was interested in the role of spare parts interpreter and could probably undertake its various duties, including the clerical aspects, once he was provided with training. He has previously applied for a role of this nature.[50] The issue he faces with this role, which has manual handling and standing requirements, is that he would be unreliable because of his back pain.[51]
[47] T32, L28-30
[48] T34, L14
[49] T34, L24
[50] T42, L29-30
[51] T43, L21-22
70I accept Mr Singh’s evidence, based on his unsuccessful efforts to retrain as a mortgage broker, that he has difficulty concentrating and is unlikely to be able to retrain if it involved certificate courses or the like because his back pain would prevent him from attending continuous classes.[52] The medical restriction, and increased back pain, upon prolonged sitting is also a barrier to further training even if he is able to self-manage his hours.
[52] T23
71Mr Singh was cross-examined carefully about the role of production engineer described in Recovre’s supplementary report dated 12 April 2024, prepared at the request of the VWA. The role in Laverton involved a 50/50 split between desk-based tasks and production floor tasks. Mr Singh agreed that he could perform the duties described for this role, and that standing between 30 to 60 minutes would be suitable for him. The only issue remained his unreliability due to his back pain, which would require he be able to lie down at work and take days off when necessary.[53]
[53] T41, L 8
72Work Able has not to date been able to obtain Mr Singh any interviews in any of the above roles.
Analysis
73I must consider whether Mr Singh has any realistic capacity to return to full-time employment which might otherwise be suitable, having regard to his age, education and skills, work experience or other matters.[54]
[54]Richter v Driscoll (2016) 51 VR 91 at paragraphs [74]-[97]; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188
74I accept Mr Singh is a resilient person, which is ably demonstrated by his relocation from Melbourne to Bendigo to pursue work related to his diploma and bachelor qualifications in engineering technology.
75Despite indications that he was to be employed in his capacity as an engineer, Mr Singh was in fact deployed to work on the factory floor as a machine operator. Nevertheless, he continued in that role in the expectation that, if he was not promoted to a more appropriate role, he would look for alternative employment after a year or two.[55]
[55] T26
76His resilience is also demonstrated by his multiple efforts to return to work since his injury; his attempt to retrain as a mortgage broker (albeit unsuccessful due to an inability to concentrate as a result of his back pain); his co-operation with Work Able since April 2023; and independently applying for work he considered appropriate.
77The medical evidence supports my finding that Mr Singh faces very significant workplace restrictions in relation to sitting, standing, bending, twisting, walking on uneven surfaces, prolonged abnormal postures (such as computer-based tasks, including related to retraining), lifting and all back movements between waist and chest height.
78I accept Dr Awad’s opinion that the role of estimator in engineering and manufacturing is highly unsuitable for Mr Singh.
79His daily back pain, with flare ups which would likely require time off work, and the need to lie down and rest during the day are also a very significant restrictions on employment.
80Most of the doctors say Mr Singh is only fit for part-time employment, between 25 and 35 hours per week, with a requirement to work from home to accommodate his back injury for some of those hours as recommended by his general practitioner.
81In terms of Mr Jonathan’s opinion as to a retained capacity for full-time hours in suitable employment, I prefer the opinions of others, based on my findings as to Mr Singh’s ongoing pain, daily need to lie down and rest, and the extent of his permanent employment restrictions.
82I also do not accept the evidence of Dr Barton.
83As is usually the case in applications of this type, I did not have the benefit of receiving oral evidence from either Mr Jonathan or Dr Barton to explain their opinions. I cannot reconcile their views concerning a retained capacity to work full-time hours with the evidence of Mr Singh in relation to the tasks required in the various roles identified by the vocational consultants, or the well-reasoned opinions of other consultants including occupational physicians in the context of Mr Singh’s back condition, which has had a poor response to surgical intervention.
84Nor does the succinct opinion of orthopaedic surgeon, Mr Chehata, in the absence of more detailed reasoning or consideration of the requirements of potentially suitable roles, persuade me that Mr Singh is capable of full-time employment.
85At the very least, significant doubt attends the proposition that Mr Singh has retained a capacity for retraining to obtain further qualifications to perform any particular sedentary role, such as CAD. I accept his evidence that he was unable to complete a mortgage broking course which involved limited hours of study on a computer at home, three days a week, because of his inability to concentrate. His medical restrictions also prevent him from sitting for significant periods of time. Should it be necessary to do so, I find that there has been no failure by Mr Singh to engage in reasonable retraining for the purposes of ss325(2)(g).
86There is no suggestion Mr Singh has failed to engage in reasonable rehabilitation, and there appears no basis on the evidence before me to make such a finding. He has been actively involved with Work Able for the past twelve months, and his medical treatment appears appropriate.
Current and future loss of earning capacity
87Section 325 is a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is a part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of earning capacity sustained by the worker.[56]
[56] Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [171]
88Any reliance on specific figures is consistent with an assessment of actual loss of earnings rather than the task of the Court in an application of this type to assess a present and future impairment of earning capacity, which is “a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters”.[57]
[57]Moss (supra) at paragraph [87]
89I find that Mr Singh has not retained a realistic capacity to work in his chosen profession as an engineer; alternatively, for the purposes of this application, even if he has retained some capacity to work as an engineer, he has still suffered a loss of earning capacity of more than 40 per cent because of the significant restrictions placed upon him and his inability to work full time on a reliable and consistent basis.
90If Mr Singh is to pursue his career as an engineer, he would be expected to be physically fit to perform the manual aspects of the role, not just desk-based duties. The Flexi Personnel report dated 10 April 2024 identified that the role of production engineer would require:
“… a physical capacity to perform unrestricted prolonged standing, bending, twisting, occasional lifting, working in confined spaces and working in around plant and machinery.”[58]
[58] PCB 99
91Acknowledging Mr Singh’s admirable enthusiasm concerning his future employment prospects, I accept the opinions of Mr Mohammad Awad and Dr Eman Awad, that Mr Singh has not retained any capacity to work as an engineering estimator or in a production or warehouse role because they exceed his workplace restrictions, particularly in relation to attendance on site. The role of engineer is more demanding than these alternative and lesser paid roles.
92Mr Singh’s affidavit affirmed 15 April 2024 sets out his unsuccessful attempts to obtain employment over a period of twelve months, including through Work Able. This evidence supports my finding that Mr Singh has suffered a greater than 40 per cent loss of earning capacity.
93Whether or not ss325(2)(g) of the Act applies to exclude this evidence from consideration, my findings as to the probable income but for his injury over Mr Singh’s probable earning life in paragraph 53 above are sufficient to dispose of the application.
94On the alternative basis that consideration of “suitable employment” applies to Mr Singh, the medical evidence referred to above establishes a retained capacity to work 25, possibly up to 35, hours per week in light work:
(a) as a call centre operator;
(b) in a sedentary role as a clerical or administrative worker; and
(c) camera operator.
95Based on Mr Singh’s inability to obtain work over the past twelve months, I factor into the analysis the likelihood that he may be unemployed for significant periods of time in between roles into the future.
96The evidence discloses a man who effectively cannot bend, twist, lift even moderate weights, reach for high objects, or sit or stand for any significant length of time, who needs to be able to lie down at work from time to time. Not working at present, he is still forced to lie down for up to an hour most days due to his pain. His ability to concentrate has been significantly compromised by his back pain. Although Mr Singh has a present capacity to work in very light or sedentary work, he is likely to require significant amounts of time off work during flare-ups, with the possibility of further deterioration requiring surgery.
97I am satisfied that Mr Singh has a capacity to work 25 hours in very light or sedentary work which can accommodate his restrictions.
98The medical restrictions on his employment set out above, taken together with Mr Singh’s actual retained capacity, demonstrated in his limited return to work with the employer, would likely preclude him from working more than 25 hours because beyond that he is not likely to be able to perform the duties required on a consistent and reliable basis.
99I accept the VWA’s submission that Mr Singh’s treating general practitioner[59] is in a very good position to assess his patient, and has recommended the requirement of flexibility to work from home. Such a flexible arrangement is common in today’s workplace, and my findings reflect the need for such flexibility to accommodate Mr Singh’s medical restrictions.
[59]See report of Dr Shanmugam dated 3 February 2024 at PCB 55-56
100I have considered all of the evidence in terms of loss of earning capacity. Despite three efforts to return to work with the employer, he was limited to very light duties in a role that does not reflect employment available on the open market. After concerted efforts, assisted by Work Able, Mr Singh has not been able to obtain any, let alone full-time, employment in suitable roles over the last twelve months, and he was unsuccessful in his efforts to retrain as a mortgage broker.
101Mr Mighell KC framed the question as: whether the plaintiff would be able to retain work on a reliable and consistent basis into the future? In my view, the answer is no, at least not on a full-time basis.
102He has a poor prognosis:
(a) Mr Ash Chehata, orthopaedic surgeon, opined that Mr Singh’s prognosis is “undoubtedly guarded” considering that he is a young man who has had a poor response to surgical intervention;[60]
(b) Dr Eman Awad, occupational physician, said that flare-ups of back pain impact Mr Singh’s ability to work, and that his prognosis was guarded;[61] and
(c) Mr Mohammad Awad, neurosurgeon, reported that:
"Noting the nature of his injury, I do believe that he is at increased risk of further degenerative changes and accelerated degenerative changes by way of his injury and subsequent surgery. He is likely to require further surgery, in my opinion …
…
… [Mr Singh is] likely to suffer the consequences of this injury in the form of ongoing pain and disability into the foreseeable future.”[62]
[60]PCB 60
[61]PCB 69
[62]PCB 75 and 77
103Even Mr Jonathan’s view as to prognosis was, “guarded”.[63]
[63] DCB 45
104The VWA relied upon the report of Recovre dated 16 February 2024, analysing suitable employment roles involving light work at between $25 to $35 per hour, annualised to between $48,750 and $58,500.[64]
[64]DCB 96
105The remuneration for these roles on a full-time basis is significantly less than the threshold figure of $81,000 for establishing a loss of earning capacity of 40 per cent or more.
106I am satisfied that Mr Singh has a loss of earning capacity which will continue permanently to be productive of a financial loss of 40 per cent or more. There is no indication Mr Singh’s back condition will improve.
107If Mr Singh’s loss of earning capacity was notionally based upon his lesser paid role of machine operator at the time of injury rather than as an engineer, a comparison with the figures from Flexi Personnel ($30 per hour[65]) or the Recovre report (between $25 to $35 per hour), might on its own support a finding that Mr Singh has failed to establish a 40 per cent or more loss of earning capacity. This, however, is not the end of the matter.
[65]PCB 87
108A precise monetary comparison based upon actual earnings is not required by the statute, nor is it appropriate in the present case.
109Having regard to his physical restrictions, his unsuccessful attempts to secure any form of employment over the previous twelve months and the extent of his employment history since his injury being limited to a manufactured occupational health and safety role with the employer, I find Mr Singh has suffered a greater than 40 per cent loss of earning capacity.
Conclusion
110I am satisfied as to the following:
(a) Mr Singh suffered injury to his low back throughout the course of his employment with Elect Performance Group Pty Ltd and/or in an incident on or about 31 May 2021;
(b) as at the date of the hearing, Mr Singh has suffered a greater than 40 per cent loss of earning capacity;
(c) the loss of earning consequences, including the impact on his vocation as an engineer, are “at least very considerable”; and
(d) he will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
111I grant leave to Mr Singh to commence proceedings for damages for pain and suffering and loss of earnings.
112I will hear the parties on costs.
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