Sozer, Jake v Gough Bay (Vic) Pty Ltd
[2009] VCC 1460
•2 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-05731
| JAKE SOZER | Plaintiff |
| v | |
| GOUGH BAY (VIC) PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 September |
| DATE OF JUDGMENT: | 2 October 2009 |
| CASE MAY BE CITED AS: | Sozer, Jake v Gough Bay (Vic) Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1460 |
| (First Revision 11 November 2009) |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the right ankle – staphylococcus – psychiatric impairment – pain and suffering – loss of earning capacity – causation.
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| APPEARANCES: | Counsel | Solicitors |
| For the Defendant | Ms K McMillan SC with | Lander & Rogers |
| Ms A Ryan | ||
| For the Plaintiff | Mr R J Stanley QC with | Zaparas Lawyers |
| Mr D W Podger | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 4 June 2006 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by Section 134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning “a permanent serious impairment or loss of a body function”.
4 The plaintiff also brings this application pursuant to clause (c), claiming a permanent severe mental or permanent severe behavioural disturbance or disorder.
5 The body function relied upon in this case is the right ankle, the infection affecting the plaintiff’s whole body and psychiatric impairment.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable”, and “more than significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172 in reaching my conclusions;
6 The plaintiff relied upon one affidavit and gave viva voce evidence. He was cross-examined. The plaintiff’s wife, Carla James, swore an affidavit on 17 September 2009.
7 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
8 The plaintiff is aged thirty-seven, having been born on 23 August 1972 in Melbourne. He has two children from his first marriage and he has the custody of his fifteen year old son.
9 The plaintiff was educated to Year 10 and then worked at Ford Australia on the assembly line for about two years.
10 In 1991, the plaintiff moved to New South Wales, where he worked as a store assistant, machine operator and a profile cutter. In 1996, he came back to Melbourne and worked as a profile cutter.
11 In 1998, the plaintiff returned to New South Wales and worked for Drake Labour Hire and performed process work until about 2002.
12 In the course of his employment at Aristocrat in that year, the plaintiff hurt his right shoulder and neck and had to stop work. His compensation claim in relation to that injury was settled in New South Wales for $160,000.
13 The plaintiff had a good outcome with his treatment in New South Wales but he is left with restrictions as to lifting above his shoulders, and repetitive work. He suffered some depression after this shoulder injury but he had no problems in this regard for some time before the said date.
14 Despite his shoulder problem, the plaintiff was able to return to work as a night shift cleaner with the defendant in May 2006. The plaintiff worked from 6.00 pm to 2.30 am. At times he worked six days a week, earning approximately $1,100 gross per week. In the weeks leading up to the said date, he worked five days a week and earned $890 gross per week.
15 The plaintiff worked by himself at his own pace, mopping and polishing floors and cleaning toilets. He did not have to do any overhead work.
16 On the said date, as the plaintiff was pulling a mop through the squeezer, the squeezer became jammed and he pulled hard to free the mop. The squeezer suddenly gave way, releasing the mop, causing the plaintiff to lose balance and fall when his right foot was struck by the pedal as it suddenly rose. The plaintiff fell forwards and his right foot was knocked off the pedal, hit the floor and his right ankle was twisted (“the incident”).
17 The incident occurred at about 1.00 am. The plaintiff completed an incident report and then went to the Northern Hospital where his ankle was x-rayed and he was kept in hospital for a few hours.
18 After three days, the plaintiff attempted to return to work with the defendant on nightshift. He worked for two days but found any pressure on his ankle caused pain and swelling.
19 The plaintiff attended his general practitioner, Dr Baglar, who gave him further time off work and sent him for another x-ray and then for a CT scan and ultrasound which were performed on 12 July 2006.
20 Thereafter, the plaintiff was sent for physiotherapy which he had three days a week for about three months and was given a lace-up brace for his right foot and ankle which he wore daily.
21 The plaintiff first saw Mr Owen, orthopaedic surgeon, on 11 September 2006. Mr Owen examined his ankle and suggested the plaintiff needed an operation which was performed at Latrobe Hospital on 22 October 2006 where the plaintiff was an inpatient for four days (“the surgery”).
22 After the surgery, the plaintiff recommenced physiotherapy three times a week in late January 2007 but only attended on three occasions before Mr Owen suggested he do home based exercises wearing a CAM Walker - a brace involving his lower leg.
23 After the surgery, the plaintiff’s ankle remained painful, tender and swollen and it continued to feel unstable as if it was going to give way. He was not able to return to work.
24 In examination in chief, the plaintiff said that the plaster came off at about Christmas time in 2006. There was then a suggestion he go onto a CAM Walker. However, the plaintiff could not use the brace because it put too much pressure on his leg. He was having problems and his ankle was tender on the sides.
25 After the plaster was taken off, the plaintiff noticed a whole lot of pimples on the front of his shins. When he mentioned this to Mr Owen, Mr Owen said he believed it could be sweat pimples and suggested the plaintiff take it up with his general practitioner.
26 The plaintiff overlooked this problem for about a month because he thought they were pimples. By February 2007, he had further skin problems. The skin condition did not look like pimples. It was filled with yellow pus and was breaking out in various other parts of his leg, initially on his right thigh. He attended Dr Baglar and was prescribed antibiotics.
27 In cross examination, the plaintiff agreed that the first time he had spoken about pimples was in court and he had not mentioned it in his affidavit. He said the pimples were on his shin and there were visible scars. He might have overlooked putting it in his affidavit.
28 The plaintiff said he did mention this problem to Mr Owen in January 2007. When the plaintiff attended Mr Owen in May 2007, Mr Owen was quite upset why the surgery was not so successful and he advised the plaintiff to use the Cam walker.
29 Over the next few months, the boils started to show up on the plaintiff’s buttocks, thighs and his chest, and he was referred by Dr Baglar to the Northern Hospital on 19 May 2007. Blood tests were carried out and swabs were taken. A major infection of Methicillin Resistant Staphylococcus Aureus (“MRSA”) was diagnosed. Clyndamycyn was prescribed.
30 In June 2007, the plaintiff attended a meeting at Dr Baglar’s surgery with representatives of QBE concerning a return to work. It was agreed the plaintiff would try to return to work on 25 June 2007, working three hours a day, three days a week picking up papers using a stick. He attempted this work but fell ill during the second week when he had an outbreak of boils and he went back to the Northern Hospital on 2 July 2007.
31 The plaintiff was told at this meeting that he would be called again in six months time but he has heard nothing further from these rehabilitation people.
32 The plaintiff was admitted to the Northern Hospital on 2 July 2007 for surgery. At that stage the plaintiff had about eight sores in one area covering at least twelve centimetres. He described how he could pretty much put half his hand in the hole in his right thigh and to the side of his backside. He was kept in Emergency for eight hours until it was decided what further treatment would be undertaken.
33 At the last minute, it was decided surgery was unsafe and the plaintiff was put on Vancomycin and was given morphine. Just prior to the proposed surgery, the plaintiff was asked to sign a statutory declaration acknowledging there was about a ninety per cent chance of getting a bone infection or further infection. Not surprisingly, the plaintiff did not sign the document and the procedure did not go ahead.
34 The plaintiff was hospitalised for three to four days and given a course of Vancomycin to control the infection and he was also given morphine to control the pain. He was too weak to return to work after being discharged.
35 The plaintiff continued to get a lot of infections and suffered a flare up in November 2007. He again returned to the Northern Hospital for a day and was prescribed further Vancomycin. At that time he was told that hospital was a dangerous place with his lowered immune system and he was only kept there for a day.
36 For some months thereafter, the plaintiff attended the Northern Hospital about once a month in the infectious diseases section where his condition was monitored by Dr Aboltins.
37 The plaintiff explained the only time he goes to hospital is when his pain becomes unbearable. If he had three or four boils, the Hospital did not want him to come in and would send him away to manage the condition at home.
38 In cross examination, the plaintiff disagreed that he had told Dr Aboltins in April 2008 that the aches and pains associated with the infection were not so much of a problem.
39 The plaintiff was not happy with Dr Aboltins because he kept changing his medication and he got the plaintiff quite frustrated towards the end because Dr Aboltins lacked knowledge about the infection.
40 In re examination, the plaintiff confirmed that he has definitely complied with all medication prescribed and that he did have problems and got frustrated with Dr Aboltins who was a young doctor with insufficient knowledge.
41 The plaintiff explained there was no real reason to see anyone further for treatment because the response was that there was not much that could be done about it.
42 In early 2008, the plaintiff suffered joint pain which he was told was a side effect of the Vancomycin. Dr Baglar arranged for x-rays of the plaintiff’s hands and feet on 11 February 2008.
43 The plaintiff had a further worsening of the infection on 23 April 2008 and he was again treated with Vancomycin for the day at the Northern Hospital.
44 Two days later the plaintiff suffered very bad nausea with vomiting and he could not control his balance. He also had a particularly severe headache. He was taken back to Hospital by ambulance and placed in quarantine, where he was held for two days and a CT scan of his brain was arranged on 27 April 2008.
45 Whilst in Emergency, the plaintiff was advised that the hospital was more of a threat to him than a good place to be and he was sent home in the afternoon.
46 When he got home, the plaintiff had a lot of problems walking and could not get out of bed due to a stiff neck, vomiting and dry retching and he went back to hospital via ambulance. He was given Pethidine and had a brain scan and a lumbar test. There was a query whether he was suffering Toxic Shock Syndrome.
47 It was noted at the Hospital that at that stage the lesions were about three centimetres in diameter and some had a dry scabby core. There was a three centimetre erythematous lesion and other skin lesions. The plaintiff described the lesions were between the size of a five and a twenty cent piece
48 Until recently, the plaintiff was taking Clyndamycyn three times a day to control the infection, and Effexor, which was increased to 300 milligrams a day, for his nerves. That medication has been recently changed to Arapax. Further, the plaintiff takes either Tramal slow release, 150 milligrams, one in the morning and one in the evening, or Panadeine Forte, four tablets a day for pain. In addition to his other painkilling medication, the plaintiff takes Mersyndol every day.
49 When he attended Northern Hospital the plaintiff was given Methicillin Vancomycin – a backup antibiotic with side effects - when the infection was worse.
50 The plaintiff continues to have some right ankle pain around the outside of his ankle and to the top of the foot, as well into the little toe and two toes next to it. Sideways movements of his right foot are painful. It remains swollen to some degree all of the time and is worse if his foot is under stress, such as when standing for more than thirty minutes.
51 When the swelling is worse, the plaintiff has to wear larger shoes. He prefers shoes with a firm heel providing ankle support. He cannot wear thongs or slippers.
52 The plaintiff’s right ankle feels unstable. He cannot run or jump because any jarring of his ankle increases pain. He has particular difficulty walking on sideway slopes, and balancing in that situation is very painful. He can walk on a flat surface with breaks but he has increased discomfort after about half an hour.
53 The current situation with his ankle is that it is no better than it was before the surgery. He experiences instability, swelling, extreme pain and a lot of clicking almost every time he moves around. It becomes more swollen if he stands for an hour or so.
54 The plaintiff can drive a car but only an automatic. He uses his right foot for the accelerator and his left for the brake.
55 When the plaintiff is resting, he usually finds it more comfortable to elevate his foot, which seems to ease the discomfort, but if he rests it on the heel it is painful.
56 As a result of the infection, the plaintiff never feels well. He feels tired all the time and can easily get out of breath. Most days he has headaches and feels nauseous.
57 The plaintiff has recurrent break outs of boils on his body all the time. The boils usually last for about two to eight weeks and tend to leave an indented scar, usually about five centimetres in diameter. They are painful and itchy and they discharge pus and blood for the first few days before they scab up. The boils mostly occur on his buttocks and leg, although in more recent times he has had them on his abdomen and chest and his most recent flare up involved his nose. The plaintiff has to keep the boils covered and he has been instructed how to treat them and clean them with Dettol.
58 The plaintiff self manages, having a hot shower, softening the boil and squeezing it and applying Dettol and then a bandage.
59 Sitting and placing any pressure on the boils produces a lot of pain and discharge and the plaintiff has to be careful in bed not to roll onto them or knock them.
60 The plaintiff’s son became infected in September 2007 and as such the plaintiff has to be very careful with physical contact. He and family members each have their own set of plates, cutlery and cups and wash their hands regularly.
61 The plaintiff’s wife also became infected which upset them both very much. Their sexual relations had already stopped after he found out about his infection. Her infection led to arguments between them and she left on 21 May 2008 because she could not cope.
62 Since that time, the plaintiff has had recurrent attacks of the infection. It is very unpredictable, but on average four to eight times a year, the severity of which varies but most likely it is just the same. Mainly his legs are infected but the infection has come as far as his underarm and his chest.
63 The plaintiff last had an infection about nine days ago, after which he went to see Dr Fuller, who had said to him at a medico-legal assessment earlier this year to come and see him if he had a further outbreak.
64 In the most recent outbreak the plaintiff had a problem with his nostril being totally closed and he had a further abscess on his right thigh. Dr Fuller took swabs and bled the plaintiff’s nose out. He changed the plaintiff’s medication from Clyndamycyn to Rifampicin and Fusidic Acid.
65 It is unpredictable how many boils the plaintiff might have at one stage, having had up to as many as fifteen, essentially grouped together. The actual area of inflammation could be up to the size of a football.
66 In addition to the visible signs of the boils, the plaintiff gets very lethargic and needs extended sleep for up to eighteen hours a day and he sometimes sleeps through the whole day. He is also taking a lot of painkillers to deal with the pain from the boils and at times gets blurred vision. He gets hot and cold chills.
67 The plaintiff has to be very careful showering because of the risk of spreading infection. He has to dress carefully and he wears a gown at home most of the time as clothing irritates his skin.
68 The plaintiff carries a hand sensitiser, Dettol hand cleaner, to reduce the risk of infection. He uses it after he eats and after he goes out in public places.
69 When he has a flare up there is not really much he can do. Initially, he gets very anxious, he cannot sleep and when the sores take full effect they drain his immune system.
70 Before his ankle injury, the plaintiff used to enjoy working on cars. He had a Commodore Club Sport which he had built up before selling it and he had bought a Ford Tickford which he had started to build up. The plaintiff had to sell the Tickford in 2007 because of financial pressure. He could not keep working on it because he could not squat because of his ankle and he felt too tired with the infection.
71 Prior to the incident, the plaintiff used to maintain his house and garden. He had to leave the house when his wife left as she was looking after him. In August 2008, when he swore his affidavit, he was living in a granny flat as he could not maintain his property.
72 When the plaintiff has the infection he becomes very withdrawn. He is worried about his appearance. He does not go to the pool and he does not wear shorts. He is worried about infecting others. When he infected his wife he felt very bad.
73 Since the infection the plaintiff’s social and sexual life has finished. He used to go to restaurants and for drives with his family, going to Sydney to see his daughter every few months but he cannot do that now. The plaintiff has not seen his daughter since January 2007, although that has also been because of his marital problems.
74 The plaintiff used to host and attend barbeques most Sundays with his family but does not feel like socialising now because of the infection and worries about the risk to others. He feels down on himself and feels very depressed and isolated.
75 The plaintiff sees Ms Durmaz, psychologist, once a fortnight and more often if needed. He also gets counselling from Dr Baglar.
76 The plaintiff has become very mentally unstable within himself. He had been having suicidal thoughts at times but he has been quite good for the last month or two because of the Arapax, which has mellowed him.
77 The plaintiff feels discouraged about his future and feels like a total failure. He is still quite young and he would like to try and commit himself to some sort of work and support his family but with his infection he finds it very unpredictable and he does not know what the future holds. He suffers anxiety, over which he has no control.
78 The plaintiff explained that there had been problems with his relationship, in that he took out his frustration on his wife and that he put pressure on her so that she and the child would leave. The plaintiff also explained he had some problems with gambling.
79 In cross examination, the plaintiff confirmed the history given to Dr Kenny of essentially no psychiatric problems before the incident. The plaintiff said, however, that he had taken drugs, probably in his younger years, namely, ten or fifteen years ago when he probably used to smoke a joint. He agreed there had been an Intervention Order taken out against him by his ex partner and that he had been with his current partner for about ten years.
80 The plaintiff was shown a blog which he agreed he had written on the ‘Herald Sun’ site some days before the hearing. He said what was set out there was not true and correct; it was all a lie – “Who writes the truth on the internet?”
81 It was also a lie that he was involved in lots of activities with his son.
82 The plaintiff explained he wrote the blog to attract some attention. He hoped some people would take the story seriously. He commented that it was just sad to see what parents were doing to their children so he thought if he wrote a heart warming story, something to grab awareness, people might take that into consideration.
83 In re examination, having read the story in the ‘Herald Sun’, the plaintiff said he felt compassionate towards the children mentioned in the article and thought he might just write a story. He confirmed the contents of that blog, insofar as they related to him, were not correct. He had a pretty much broken relationship with his fifteen year old son of whom he had gained custody in a contested application with his former wife. His daughter had stayed with the plaintiff’s former wife as she, unlike the plaintiff’s son, had not been abused by the stepfather.
84 The plaintiff was informed by Konekt in August 2008 that he was unemployable as there was a risk his infection may spread to others.
85 The plaintiff would be prepared to return to work but he believes it would be a risk to others working with him using the same toilet, cutlery or kitchen. He had discussed this issue with Dr Fuller earlier this year.
86 The plaintiff has attended all appointments with rehabilitation providers and he is willing to go back to work if suitable employment is found or if someone is prepared to employ him.
87 The plaintiff cannot see himself as capable of getting a job and holding one down. Firstly, the only industry he had known was working in the labouring field and he would find it a struggle to go back to that type of work due to his physical restrictions from his shoulder and ankle injuries. He could not return to work involving long periods of standing.
88 Secondly, he did not have the knowledge to work in an office, not having done that work before. He was not good with numbers. Thirdly, due to the infection, he did not know what reliability he would be able to offer another employer. He proposed to tell employers of his infection, but he was advised not to by his rehabilitation provider because it would affect his chances of getting a job. The plaintiff thought it was wrong not to disclose his condition.
Lay Evidence
89 The plaintiff’s wife, Carla James, swore an affidavit on 17 September 2009. She and the plaintiff have been in a de facto relationship since January 2002, having met in Sydney the previous year.
90 They moved to Melbourne in late 2005 with her daughter and son from a previous relationship and the plaintiff’s son came to Melbourne with them.
91 Before the incident, they enjoyed going for long walks, taking the children to school and walking together. They regularly walked four to five kilometres around a park near their house on most weekday mornings, and also went for long walks with the children.
92 In January and February 2007, she noticed a large number of painful red pussy sores on the plaintiff’s legs and buttocks and his ankle was swollen and he frequently complained of pain.
93 By February 2007, the plaintiff had many boils from the infection and spent his time asleep, leaving her to run the household and look after the children.
94 After he developed the infection, the plaintiff became very abrupt and demanding towards her and the children and he would get angry and he experienced unpredictable mood swings. The plaintiff told her he felt useless and could not do anything anymore. Finally it got too much for her and she left the plaintiff and returned to Sydney, taking her children with her.
95 She and the plaintiff reconciled towards the end of July 2007, at which time she found the plaintiff to be very quiet and timid. At that stage he was seeing Ms Durmaz, psychologist. The plaintiff told her he felt ashamed of the way he treated her and the children. At that time she saw that the plaintiff had a number of painful open sores mainly on the outside of his thighs.
96 In October 2007, she became infected with the plaintiff’s infection in the form of a boil in her thigh. Her whole thigh became very swollen, hot and intensely painful and felt as if it was burning. Contact with her thigh was excruciatingly painful and she went to see Dr Baglar.
97 Dr Baglar put pressure on her wound and put a gauze bandage on it and told her to clean the boil with Dettol everyday and to squeeze pus out of it. Treating the infection that way was extremely painful. Dr Baglar prescribed Clyndamycyn, which she took for a week, and the boil left a scar on her thigh about the size of a twenty cent piece.
98 She separated from the plaintiff again in late May 2008 and went to Sydney. In the months before that, the plaintiff told her he felt useless because he could not work with his ankle pain and infection. They tried to go for a walk a few times but after a while the plaintiff’s ankle would start clicking and get painful and he would need to go home to rest.
99 Up until this separation, she was working twelve hour shifts at the airport. The plaintiff would often be late to pick her up because he had been sleeping. In the months leading up to May 2008, the plaintiff had become increasingly depressed and rude and demanding towards her. They were under financial pressure as the plaintiff’s WorkCover payments had stopped.
100 The plaintiff’s behaviour became strained, as he did not care about living. He was driving recklessly and rode his motorbike recklessly and she was worried he might hurt himself.
101 They fought often. The plaintiff accused her of cheating on him and abused her and threw things at her. At one stage he punched a hole in the bathroom wall. He was anxious and often slept poorly and said his mind was going a hundred miles an hour.
102 She returned to Melbourne in September 2008 to live with the plaintiff. At that stage he seemed mellow and he was polite and considerate to her.
103 The plaintiff’s ankle is still swollen and he cannot go for walks with her or the children. He complains of pain on most days and on a good day he comes shopping with her. He can manage an hour or two of walking or standing but he will have a very bad ankle the next day and need to rest.
104 The plaintiff had three or four outbreaks of boils over the past year. Those outbreaks lasted from three to four days to eight to ten days, when he has open sores with pus in them somewhere on his body. The plaintiff’s last outbreak was at the end of August when he had a sore on his nose and another small sore on his thigh.
The Plaintiff’s Medical Evidence
105 Dr Baglar, from the Dalton Village Medical Centre provided a number of reports. He noted, in July 2007, the plaintiff had recently contacted him with severe abscesses on his thigh and buttocks and he referred him with a putative diagnosis of staphylococcal skin infection which was later confirmed.
106 Dr Baglar considered that, based on the information given to him by the plaintiff, for a person to suffer hospital grade MRSA the patient had to be an inpatient and that case was more likely if the patient had any artificial material, like screws or plates inserted into their body. He noted the only occasion when the plaintiff was admitted to hospital and had surgery with screws was when he had his ankle surgery.
107 In Dr Baglar’s view, considering all those facts, it was likely that the plaintiff’s staphylococcal infection was the result of the ankle surgery.
108 In a later report, Dr Baglar noted the plaintiff presented one day to the clinic with severe abscesses on his thigh and buttocks.
109 Dr Baglar confirmed a flare up on 20 November 2007, at which time he thought the plaintiff was unfit for work, and Dr Baglar noted at that date that the plaintiff’s wife had had similar lesions.
110 Dr Baglar reported he was monitoring the plaintiff’s convalescence which went smoothly until one day the plaintiff contacted him with severe multiple boils on his buttocks. The plaintiff attended the Emergency Department at the Northern Hospital on 27 April 2008.
111 Dr Baglar thought that it seemed the plaintiff would have these attacks of infection with an unpredictable frequency and he had to learn to live with it.
112 The plaintiff at that stage was still complaining of ankle pain and he felt unsafe in terms of it giving way. His ankle pain was worse at the time of infections.
113 Dr Baglar considered the plaintiff was not fit for any work where he was expected to stand and walk for any reasonable length of time. Because of his smouldering infection, he thought the plaintiff was not fit for any work environment which could challenge his immune system.
114 Dr Baglar noted the word “treatment” was an overstatement since it was not possible to treat the infection. What the medical profession could do for the highly infectious disease was to contain it and suppress the exacerbations as they occur, otherwise it was not possible to be treated.
115 Dr Baglar believed, just on the basis of the infection, the plaintiff was not employable at all. He thought the plaintiff’s condition was permanent and irreversible. It was non treatable and prone to exacerbation.
116 In his view, the second reason for the plaintiff being unemployable was based on the contagious potential of the condition. As Dr Baglar commented, he could not think of any employer who would be happy to employ the plaintiff.
117 He did not consider the plaintiff fit for any form of physical employment which needed walking and standing for long periods.
118 In June 2009, Dr Baglar reported he had lost track of the number of recurrences and due to recurrent infection, the plaintiff naturally developed an adverse emotional reaction to his injury and to its dramatic sequel. The plaintiff was placed on anti-depressant medication and referred to a psychologist because of his reactive depression and Adjustment Disorder.
119 Dr Baglar noted, with the realisation there is no end to his recurrent infection and due to the unpredictability of its recurrences, the plaintiff’s initial reactive depression took the form of Chronic Major Depression and led to an effect on his social life and relations with other people, leading to separation from his wife.
120 He noted the plaintiff still complained his ankle felt unstable and his pain was worse at times of infection.
121 The diagnosis of the initial injury was traumatic peroneal and tibialis posterior tendonopathy of the right ankle. The infection which developed due to the surgery was hospital acquired MRSA. In the absence of no one in the plaintiff’s close social proximity having had the infection, Dr Baglar was convinced it was highly likely the plaintiff acquired it in the hospital. Therefore, nobody could convince him that it was a community acquired infection. In his view, if the plaintiff had not had the ankle surgery, he would not have had the infection.
122 Mr Owen first saw the plaintiff on referral from Dr Baglar on 11 September 2006. The plaintiff told him of the incident when his foot rolled into plantar flexion injuring his ankle.
123 Having seen the CT scan and an ultrasound of the plaintiff’s ankle which showed the peroneal tendons and possible split in the peroneus brevis tendon, Mr Owen arranged for the surgery.
124 At Latrobe Private Hospital on 22 October 2006, Mr Owen explored the peroneal tendons and noted there was a tear of some six centimetres in the peroneus brevis tendon which was debrided. The unstable ankle was confirmed and standard Broström reconstruction was performed.
125 The plaintiff was in a below knee cast for six weeks after the surgery and then mobilised in a CAM Walker. Mr Owen noted by late January the plaintiff was having physiotherapy and he was slowly getting to the point where a return to work plan in February was possible.
126 Mr Owen reported he last saw the plaintiff on 27 February 2007 when his physiotherapy had stopped. The plaintiff was having trouble with footwear and his foot was tender. The ankle reconstruction was stable. Mr Owen noted the plaintiff did not attend his next appointment on 22 March 2007.
127 In February 2007, Mr Owen thought, whilst the recovery from injury had been slow, he suspected the plaintiff was capable of returning to work as a cleaner in March 2007. He thought the plaintiff’s long term prognosis was good and that he had a very low probability of developing any secondary problems, such as osteoarthritis. He considered the ankle problem would have a very low probability of interfering with the plaintiff’s normal working life and, indeed, the plaintiff should be capable of returning to any recreational activity he should choose to pursue.
128 It is unclear when the plaintiff first saw Ms Durmaz, psychologist. The plaintiff’s wife deposed that the plaintiff was seeing Ms Durmaz in late 2007. There is no mention by the plaintiff in his affidavit of August 2008 to this treatment nor does Dr Baglar note when the referral to her was made.
129 In her only report of July 2009, Ms Durmaz noted the plaintiff told her that he was healthy physically and psychologically until the incident and there was no family history of psychological disturbance or psychiatric illness. The plaintiff told her about the incident and his subsequent ankle injury and development of the infection.
130 Ms Durmaz commented the plaintiff was a decent, genuine and honest person who did not try to exaggerate or overdramatise his problems. She noted his presentation throughout his sessions in reporting his pain, anxiety and depression was consistent.
131 The plaintiff complained to her of ongoing problems with his right ankle and also frequent headaches. He was concerned about his skin infection which had occurred about eight times to date. He was worried about infecting other people. He avoided public places and he had no sexual intercourse with his wife because he was afraid he would infect her as well.
132 Coupled with his physical injury, the plaintiff also complained of a range of psychological symptoms. His mood was usually very low. He had become disappointed and depressed after the surgery, especially when he acquired the infection. He felt anxious since he had contracted it and was worried all the time that it would return again. He frequently expressed his frustration about the hospital and the surgery and was afraid he was going to break his wife and son’s heart. He told Ms Durmaz that when he was angry he threw things in the house and that his wife had separated from him for three months because of those problems.
133 The plaintiff reported that since developing the infection he had problems with paying attention to people or finishing an activity. He had poor memory. He had no sleeping pattern and when he had infections he was sleeping up to sixteen hours a day. His appetite had fluctuated significantly and at times he could gain up to twelve kilograms and lose a similar amount thereafter.
134 Ms Durmaz noted that the plaintiff’s results on the Beck Depression Inventory on 3 July 2009 fell into the upper range which suggested a severe subjective level of distress and the endorsement of symptomatology which would suggest the existence of depression. Other testing suggested the plaintiff had clinically significant levels of depressive symptomatology and anxiety.
135 Ms Durmaz concluded that the results of the psychometric assessment indicated that the plaintiff was currently experiencing a severe level of anxiety, depression and chronic pain.
136 She thought the injury and its consequences had had a powerful psychological impact on the plaintiff and in her view, the anxiety and depression from which he had been presenting were directly related to the incident and its consequences.
137 Ms Durmaz considered if the plaintiff received appropriate treatment he could learn to reduce his anxiety, depressive symptoms and anger. However, his prognosis regarding his high level of anxiety about his infectious disease recurrence was guarded and he continued to retain some residual psychological symptoms. She thought the plaintiff required further counselling to change his negative way of thinking and to increase his self esteem.
138 Dr Brand from the Northern Hospital provided a report detailing the plaintiff’s various attendances at the Hospital.
139 The plaintiff first attended on the said date after the incident. An x-ray of the ankle reported three views had been obtained of the right ankle, demonstrating normal alignment. There was no fracture of focal bone lesion. There was soft tissue swelling present of the lateral malleolus, in keeping with a soft tissue injury.
140 The plaintiff attended the Emergency Department on 2 July 2007 on referral from his general practitioner. The plaintiff had a boil on his left buttock which was two days old, fluctuant and discharging blood and pus. He was on Erythromycin and there was also an abscess over the left greater trochanter. It was noted he had apparently had ankle surgery and had developed a staphylococcus infection. Further, there was a number of healing abscesses. The plaintiff was discharged on 5 July 2007.
141 The plaintiff attended the Emergency Department on 27 April 2008 with a four day onset of skin lesions (“the April flare up”). At that stage he had a lumbar puncture and a number of blood tests.
142 The plaintiff was seen in the Infectious Diseases Outpatients on 19 May 2008 after the April flare up. At that stage the plaintiff mentioned that his wife and son had been infected. It was noted that was a typical scenario for a family colonised with community acquired MRSA. Oral Clyndamycyn was prescribed.
143 The plaintiff had a number of attendances in the Outpatients, the last being on 19 May 2008.
144 The plaintiff attended the Emergency Department on 31 August 2008 because of boils over his legs and he was advised to increase the Clyndamycyn.
The Defendant’s Medical Evidence
145 Mr Owen wrote to Dr Baglar on 13 November 2006. He advised he had seen the plaintiff that day and his plaster slab was removed and the wound had healed well.
146 Mr Owen wrote to Dr Baglar again on 25 January 2007. He noted the plaintiff was making slow but steady progress recovering from the surgery. He thought the plaintiff should be fit to return to work in about three to four weeks.
147 Mr Owen wrote to Dr Baglar again on 1 March 2007. Mr Owen noted he saw “poor Jake who was panicking about having some pain in his right ankle”. He noted the plaintiff was tender over his peroneal tendons. Mr Owen considered the plaintiff needed to have more intense physiotherapy.
148 He noted if the plaintiff’s pain persisted, he may inject him with some steroids but he certainly did not think that there was anything major happening and noted it was a pity the plaintiff had not made the effort to return to work.
149 Mr Owen wrote to Dale Hawkes, Physiologist, on 17 May 2007 advising the plaintiff had an excellent prognosis to return to work and he should have alternative light work offered to him.
150 Mr Owen wrote to QBE on 5 September 2007 advising he had no idea the plaintiff had a buttock abscess. Mr Owen thought the likelihood of a link between the surgery in October 2006 and the abscess was remote.
151 Mr Owen noted he had not seen the plaintiff to discuss what his theory was about how the two were linked, and that it was always worth keeping an open mind but he found it hard to imagine how they could be possibly related.
152 In a detailed report, Mr Owen noted he saw the plaintiff post operatively on 24 January 2007, and in February 2007, and the plaintiff did not attend in March 2007. In May 2007, the plaintiff returned to see him, saying he found work difficult mainly because he could not get light duties. The plaintiff was symptomatic in his ankle and said he had an inability to tolerate sudden movements. The plaintiff told him about the infection he had in his right leg which Mr Owen thought sounded like a cutaneous sepsis.
153 As far as Mr Owen was concerned, when he last saw the plaintiff, although he was symptomatic, he thought the plaintiff should have been capable of returning to work.
154 Mr Owen assumed the infection was between February and May 2007, some months after the surgery. He noted no doctor looking after the plaintiff’s limb had reported to him that the ankle wound had been infected.
155 He commented that it would be very interesting to get a report from the infectious diseases doctors as to what they thought was the likely source of the plaintiff’s infection.
156 In Mr Owen’s view, the ankle wound was not infected post operatively. He did not think, therefore, the problem that the plaintiff had with the infection of his skin related to the surgery. He thought the fact that the ankle was tender post operatively did not mean it was infected.
157 Mr Owen considered had there been an infection, the plaintiff would have been quite unwell and unable to move his ankle and would have been admitted to hospital straightaway for washout and intravenous antibiotics. In such circumstances, he thought Dr Fish’s contention relating the two was unlikely or improbable.
158 Dr Aboltins, from the Northern Hospital Infectious Diseases Clinic, wrote to Dr Baglar on 19 May 2008.
159 He noted the plaintiff had had a flare up of his skin lesions approximately two to three weeks ago, at a time when he had stopped his prophylactic antibiotics.
160 Dr Aboltins reported that the multiple arthralgias and aches and pains the plaintiff was experiencing during his last visit in January did not seem to be causing as much of a problem anymore. However, the plaintiff advised him that his wife, son and daughter all had had problems with sub-acute furunculous. Dr Aboltins noted that was a typical scenario for a family colonised with Community Acquired MRSA and that, unfortunately, it could be a very difficult situation to rectify.
161 Mr Clive Jones, orthopaedic surgeon, examined the plaintiff on 24 May 2007.
162 The plaintiff told him after the surgery the results had been unsatisfactory. His ankle remained painful with activity, particularly on the lateral side and in the area of the surgery scar. The ankle clicked constantly.
163 Mr Jones noted that recently the plaintiff had developed an inflammatory type rash involving his buttocks and thighs, together with some fascial swelling.
164 On examination, there were small areas of skin inflammation, there was a little skin loss noted over the thighs and buttocks, the largest of which was less than one centimetre in diameter. There was a full range of ankle movement and it was clinically stable.
165 In Mr Jones’ view, the plaintiff had sustained a straining injury to his ankle which had not resolved despite surgery. He considered the precise cause of the plaintiff’s ongoing symptoms was not clear. He also noted the development of some anxiety and depression.
166 Mr Jones did not believe that at that stage the plaintiff could undertake cleaning work involving standing and walking on a constant basis and that lighter employment of a more sedentary nature was possible.
167 Mr Jones re examined the plaintiff on 23 July 2008. The plaintiff said his ankle was certainly no better and probably worse than last year. The plaintiff complained of recurrent staphylococcal infections which had increased his anxiety levels considerably
168 Examination findings were identical to those on the earlier date.
169 Mr Jones noted the surgery had not fully resolved the plaintiff’s problem. Mr Jones did not think the plaintiff could undertake cleaning duties and confirmed his view as to capacity for lighter employment.
170 The plaintiff was examined by Dr Fish, consultant occupational physician, on 12 November 2007. The plaintiff told him of the incident and subsequent surgery.
171 The plaintiff told him post operatively he was in a plaster cast for four weeks and then a fibreglass cast for a further six weeks. He was due to go into a CAM Walker but did not do so because of continuing pain and swelling around his right ankle.
172 The plaintiff told Dr Fish that at that time he felt very unwell, weak and sweaty. The plaintiff noticed the development of redness and inflammation around the scar and later the development of boils over his thigh and calf.
173 A week later, the plaintiff consulted his doctor who prescribed Erythromycin. Cultures were taken and the plaintiff was referred to the Infectious Diseases Unit at the Northern Hospital.
174 On examination, Dr Fish noted there was pain over the anterior and posterolateral ankle and instability with a tendency to inversion. The plaintiff’s extension was restricted and there was clicking in the ankle, particularly with inversion, and there was numbness over the anterior foot. On further examination, there were multiple inflamed crusting pustules over the upper thighs and some over the left lower anterior abdominal wall.
175 Dr Fish considered the plaintiff suffered a rupture of tendons in the right lateral ankle following the incident. The development of MRSA with the attached sensitivity pattern was, in his view, highly indicative that the infection was acquired in hospital. He noted the pattern of pustule infection was consistent with septicaemia and had arisen as a result of the surgery.
176 In a supplementary report dated 2 February 2008, Dr Fish advised that the ankle impairment was permanent and stable but he did not consider that the staphylococcal infection was permanent and stable and therefore could not be assessed at that stage.
177 Dr Barry Kenny, psychiatrist, examined the plaintiff on 7 August 2008. The plaintiff told him of the incident and the break out of the infection thereafter.
178 The plaintiff told Dr Kenny of pain in his right ankle and the fact he could not run and walk properly. His ankle was swollen and felt unstable. The plaintiff told him about the problems associated with the infection and his embarrassment in terms of contact with other people.
179 The plaintiff told Dr Kenny he cries and feels tired all the time. He does not sleep well and he has mood swings. He lacks confidence.
180 On mental examination, the plaintiff gave the impression of being of average intelligence. He spoke fairly slowly and deliberately and was not hallucinated, deluded or thought disordered and there was no obvious impairment of memory, concentration or cognition. His slow speech was normal and content appropriate. Dr Kenny noted the plaintiff certainly seemed to be distressed and worried about his situation and was indeed close to tears. The plaintiff showed him his swollen right ankle and the scars on both legs from the infection.
181 Dr Kenny noted he had no reason to consider the plaintiff had any significant pre existing problems, save for a shoulder injury.
182 From a psychiatric point of view, Dr Kenny thought the plaintiff had a significant degree of Adjustment Disorder with depressed mood and anxious mood being his response to his situation. Contributing to that disorder were persistent symptoms in the right ankle, the sores and his concerns about them, the restrictions on his lifestyle, the breakup of his relationship, financial stresses and uncertainties about the future. Dr Kenny concluded it was not at all surprising the plaintiff has a significant degree of Adjustment Disorder.
183 Dr Kenny noted just the same from a purely psychiatric perspective, the plaintiff would be capable of some appropriate alternative work but it might be difficult to find anything suitable for him at that stage.
184 Having noted the plaintiff was seeing a psychologist on a regular basis and taking anti-depressant medication, Dr Kenny considered one might argue for an increase in the dose of anti-depressant medication or perhaps psychiatric treatment, but he did not believe that would make a great deal of difference to the issue of return to work because the plaintiff had persistent residual symptoms.
185 Dr Andrew Fuller, infectious diseases physician and clinical microbiologist, examined the plaintiff for medico-legal purposes in March 2009.
186 Dr Fuller noted that from information received, the plaintiff did not have the infection prior to the surgery which he had undergone after the incident.
187 When the plaster was removed, the plaintiff remarked there were infected areas under it that sounded like a staphylococcus aureus infection and subsequently in February 2007, the plaintiff broke out in boils on his thighs, buttocks and chest.
188 It was noted treatment with standard antibiotics did not work and no swabs were taken at that time to confirm the nature of the infection. It was not until a swab was taken on 19 May 2007 which revealed the plaintiff had a heavy growth of staphylococcus areus. The isolate was also subsequently identified on 2 July 2007.
189 Dr Fuller commented that this strain of MRSA is not the hospital variety but it is called Community Acquired MRSA. It came to Australia from the Polynesian Islands in the 1990s and has now spread through the major capital cities and it is seen in both the community and also in hospitals. It is different from the Hospital Acquired MRSA that has been in Melbourne since the 1970s which is highly resistant.
190 This Community Acquired MRSA or Non-Multiresistant MRSA is also sensitive to Erythromycin and Clyndamycyn, which are the two antibiotics that the plaintiff had received to date that had been effective. Dr Fuller noted it was also sensitive to Rifampicin and Fusidic Acid.
191 Dr Fuller concluded that the plaintiff, from the history, acquired his infection in his leg for the first time when the plaster was removed and the skin lesions were underneath the plaster.
192 Dr Fuller, therefore, thought it was likely that the plaintiff acquired the infection in hospital, as at that point of time there was no evidence of anyone else with boils at home or at work, so if the plaintiff had not injured his ankle and then had surgery then he probably would not have acquired his infection and therefore his employment was at least a factor.
193 In Dr Fuller’s view, the plaintiff was not contagious in March 2009 and therefore was not unemployable. Dr Fuller noted it was possible the infection would recur and he suggested treatment would be appropriate with Rifampicin and Fusidic Acid.
The Blog
194 The plaintiff posted a blog in response to an article in the ‘Herald Sun’ eleven days before the hearing. The article dealt with parents using cannabis and the adverse effects on their children.
195 In the blog, the plaintiff set out that he had behavioural problems as a child when he was abused by his father. He also had a history of drug use, resulting in job loss and marriage breakdown, ending up in a psychiatric ward. He detailed a change in his life over the last ten years. Since that time he had been straight, he had remarried and had custody of his children. He loved his sixteen year old son and did all sorts of sports and activities with him.
196 The plaintiff concluded the blog by warning others not to ignore their children.
Vocational Evidence
197 Advanced Personnel Management organised a return to work program for the plaintiff. On 21 June 2007 a case conference was held with the plaintiff and Dr Baglar in attendance and the program was approved.
198 The program was to commence on 25 June 2007. The proposed work involved the plaintiff spotting rubbish to be cleaned or removed using a long handled pick up stick. In the first two weeks the plaintiff was to work three days, three hours per day, and then gradually increase to working five days per week for three hours per day.
199 However, having commenced the program, the plaintiff had to go to hospital on 2 July 2007 with a case of golden staphylococcus. Thereafter, throughout 2007, the plaintiff was unable to work because of the infection.
200 A vocational assessment was carried out by Konekt on 27 August 2008. The jobs of general clerk, registry and filing clerk and inventory and supply officer were suggested as suitable jobs for the plaintiff. The weekly gross wage for these jobs was in the range of $700 to $800.
201 Konekt noted however, that there were barriers at that time that would impact on the plaintiff currently returning to the workforce. These included the fact the plaintiff was certified as unfit for any duties; he could only work in an hygienic environment due to the infection; he was legally unable to drive and could not use public transport; he was depressed and anxious and his physically challenging employment history and limited education would impact upon employment options open to him without undergoing a period of retraining.
Overview
202 Section 134AB(1) of the Act permits the bringing of proceedings only in respect of compensable injuries “arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999”.
203 Thus, it is incumbent on the plaintiff to establish by probative evidence and with some specificity:
(a) what injury is relied upon; (b) further, that that injury is referable to employment on or after 20 October 1999. 204 It is not disputed in this case that the plaintiff suffered a compensable injury to his right ankle in the incident involving a tear of the peroneus brevis tendon.
205 Section 134AB(37) defines “serious injury” as a permanent serious impairment or loss of body function.
206 To satisfy the test under the Act, the impairment in relation to each of pain and suffering and loss of earning capacity must have consequences that when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
207 The impairment must be permanent, in that it is likely to last into the foreseeable future.
208 The statutory test requires a judgment based on an evaluation of all the evidence.
209 The term “serious” requires the impairment and its consequences to this particular plaintiff to be reviewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26: see in particular Chernov JA at para 29.
210 I accept that the plaintiff has suffered right ankle pain since the incident and has required painkilling medication. His foot remains swollen all the time and the swelling and pain worsens if he stands for more than half an hour. He cannot wear shoes without ankle support. He has difficulty walking on uneven ground and his ankle feels unstable.
211 The plaintiff is no longer able to enjoy his hobby working on cars as he cannot squat because of his right ankle. He cannot go for long walks with his partner and children. His ability to engage in gardening and jobs around the house is also restricted. He is unable to drive a manual car.
212 The plaintiff was not really challenged as to his reported level of disability and there was no evidence inconsistent with his complaints. Further, the plaintiff’s wife confirmed the plaintiff’s evidence.
213 Prior to the incident, the plaintiff had not had any problems with his lower limbs. He had suffered a significant injury to his right shoulder whilst working in New South Wales in the early 1990s, as a result of which his ability to do manual work was limited.
214 As a result of the incident, the plaintiff’s employment capacity is further restricted. This view is supported by a number of doctors who thought the plaintiff could not resume his old job but was more suitable for light sedentary work.
215 Taking these matters into account, I accept that the plaintiff suffered a permanent serious injury to his right ankle in the incident.
216 Whilst it was conceded by counsel for the defendant that Dr Fuller accepted there was a link between the surgery and the infection, it was submitted he did so on a false premise – namely an inaccurate history given by the plaintiff as to the onset of the infection.
217 However, I accept the plaintiff’s evidence that he noticed what were thought to be sweat pimples when the plaster was removed. In the absence of any other cause for the infection, and the medical opinion of Dr Fuller, Dr Fish and Dr Baglar, I am satisfied that the infection resulted from the surgery.
218 As a result of infection, the plaintiff would be unable to undertake even sedentary work. There is a real threat of infection of fellow workers being exposed to the plaintiff and, secondly, because of regular recurrences of the infection, the plaintiff would be absent from work for significant periods of time.
219 The infection itself has other serious consequences. When the infection flares up, the plaintiff suffers extreme pain, requiring additional painkillers. The condition is extremely embarrassing and interferes with his contact with other people. It prevents sexual activity and generally affects the plaintiff’s ability to do most activities. The self treatment regime required is painful and disgusting.
220 I accept that at all times the plaintiff has been compliant in terms of his medication and continues to require treatment as evidenced by the recent outbreak and his attendance on Dr Fuller.
221 The plaintiff has experienced eight flare ups in the last two years and there is no evidence that the condition can be cured. In these circumstances, I accept the condition is permanent.
222 Whether the infection is a consequence of the ankle injury or is considered a separate impairment, I am satisfied that the infection is a serious injury.
223 Having made that finding, and also accepted that the ankle injury itself is serious, I am not required to consider the application for a psychiatric impairment pursuant to sub-s.(c).
Loss of Earning Capacity
224 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing he has a loss of earning capacity of forty per cent or more – S.134AB(38)(e)(i); and also (b) after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 225 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 226 The former must be calculated by reference to the six year period specified in s 134AB(38)(f).
227 “Without injury” earnings consist of 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 had the injury not occurred.
228 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
229 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
230 I am therefore required to determine a “without injury” earnings figure and also an after injury earnings figure. At the time of this hearing the plaintiff’s gross earnings from personal exertion are nil.
231 There were no submissions directly on this issue as it was submitted by counsel for the plaintiff that the plaintiff is totally incapacitated for employment due to his ankle injury and or infection and psychiatric condition.
232 Counsel for the defendant submitted that the plaintiff has a capacity to work full time in a number of sedentary positions which involved gross weekly wages in the range of $700 to $800, and as such the plaintiff could not establish a permanent loss of earning capacity of forty per cent or more.
233 Having found that the plaintiff does not have a capacity for his pre injury manual work, the next enquiry is what the plaintiff is capable of earning in suitable employment as defined in Section 5 of the Act.
234 Taking into account the plaintiff’s evidence as to his restrictions caused by his ankle injury, I do not accept that the plaintiff has a capacity for suitable employment. The ankle injury has impacted on an already restricted capacity for manual employment due to the shoulder problem
235 Further, the plaintiff’s ability to do even sedentary work as I have noted would be severely compromised by the infection and its consequences. One would not be the least bit surprised if a potential employer would not risk taking on a highly infectious employee, risking the condition being passed on to others in the workplace.
236 Also the problems with pain and lethargy experienced by the plaintiff at the time of flare ups would make him a very unreliable worker.
237 The plaintiff has shown some motivation in returning to the workforce. He tried to return to work in July 2007 following the case conference, but ended up in hospital only after a short time with a flare up of the infection.
238 Whilst a number of jobs were suggested by Konekt in July 2008, it was accepted that there were a number of barriers to the plaintiff’s return to work.
239 I am satisfied that because of the ankle injury alone and or the infection, the plaintiff has an incapacity for employment, resulting in loss of earning capacity of forty per cent or more which is likely to continue into the foreseeable future.
240 I do not believe that the plaintiff has the capacity to earn, in suitable employment, sixty per cent or more of his gross income as determined by the formula in sub section (f).
241 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
242 In light of my findings as to the plaintiff’s impairment and incapacity for employment, I am not satisfied there is any retraining or rehabilitation that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
243 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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