Stephens v Victorian WorkCover Authority
[2019] VCC 1414
•11 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-04875
| ANTHONY GERARD STEPHENS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8 and 10 May, 2019 | |
DATE OF JUDGMENT: | 11 September 2019 | |
CASE MAY BE CITED AS: | Stephens v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1414 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right shoulder – pain and suffering conceded – loss of earning capacity – plaintiff was a sub-contractor – loss of earning capacity assessed by reference to number of hours the plaintiff was capable of working “without injury” and “after injury”, taking into account his hourly rate of pay and his business expenses – whether the plaintiff’s employment after injury was in the nature of “protected employment”
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; De Bono v Victorian WorkCover Authority [2019] VSCA 85; Hayhill v Hodge [2006] VSCA 194; The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Acir v Frosster Pty Ltd [2009] VSC 454; Guppy v Victorian WorkCover Authority [2010] VSCA 164; Ryan v The Grange at Wodonga Pty Ltd & Ors [2015] VSCA 17; Pisano v Precision Solid Plasterers Pty Ltd [2012] VSCA 226; Hamidi v KAB Seating Pty Ltd [2007] VSCA 151; Poholke v Goldacres Trading Pty Ltd & Victorian WorkCover Authority [2016] VSCA 232
Judgment: The plaintiff is granted leave under s335 of the Act to bring common law proceedings to recover pecuniary loss damages for injuries he sustained in the course of his employment with his employer on 15 December 2014.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram SC with Mr M A Nightingale | Arnold Thomas & Becker Solicitors |
| For the Defendant | Mr A Middleton | Lander & Rogers |
Table of Contents
Background
The application
The hearing
The issues
Overview of the Plaintiff’s case
Overview of the Defendant’s case
Summary of findings and orders
Statutory framework
The evidence
What is the most appropriate method of calculating and comparing the Plaintiff’s “without injury” earnings and “after injury” earnings?
First method – comparison of taxation returns for the three years before and the three years after injury
Second method – comparison of hours worked (or capable of working), together with the hourly rate capable of earning
Calculation of business expenses
“Without injury” earnings
(Before the injury, what was the Plaintiff’s capacity for employment? How many hours per week was he capable of working? What was he capable of earning per hour, week, or year?)
Discussion – “without injury” earning capacity
Summary of findings – “without injury” earning capacity
“After injury” earnings
Dr Zhang, the Plaintiff’s general practitioner
Mr Jacobson, treating orthopaedic surgeon
Ms Libby Gobbart, physiotherapist
Mr Chehata, orthopaedic surgeon
Dr Hwang, occupational physician
Dr Majid Rahgozar, occupational physician
Should a further adjustment be made to account for the periods that less work is available?
Comparison of the “without injury” earning capacity with the “after injury” earning capacity
Has the Plaintiff established a loss of earning capacity of 40 per cent or more?
Is the 40 per cent loss of income permanent?
Is the loss of earning capacity fairly described as being “more than significant or marked”, and as being “at least very considerable”?
Conclusion and Orders
HER HONOUR:
Background
1 Anthony Stephens, the plaintiff, worked as a houseboat repairer for Kalari Constructions Pty Ltd (“the employer”). That business has since gone into liquidation. On 15 December 2014, whilst working for the employer on the flybridge of a twin deck houseboat, “the Sojourner”, the ladder upon which the plaintiff was standing slipped or gave way. The plaintiff fell to the deck, striking his right upper arm on the way. He landed heavily, sustaining multiple fractures.
2 The plaintiff was taken by ambulance to the Maroondah Hospital, where he was admitted to the Emergency Department. He was diagnosed with fractures to the right humerus and through the left pubic ramus and the left sacral ala. All fractures were treated conservatively. His arm was placed in a brace.
3 Following his discharge from hospital, the plaintiff was transferred for inpatient rehabilitation to the Peter James Centre in Burwood where he remained between 19 and 22 December 2014. Because he lived alone, the focus of his treatment was to provide him with independent living skills. Following his discharge from the rehabilitation centre, the plaintiff’s rehabilitation continued at Wantirna Health and Hydrotherapy, where he attended on a regular basis.
4 The plaintiff continued to receive treatment from a number of healthcare practitioners, including from a surgeon, a general practitioner and from a physiotherapist. He underwent a number of diagnostic tests about which I need not now elaborate.
5 It is not in dispute that the plaintiff has suffered ongoing problems with respect to the right shoulder injury sustained in the fall. He has suffered rotator cuff tendinosis with a delamination tear of the infraspinatus tendon, chronic superior labral anterior posterior (“SLAP”) tear, subacromial bursitis and chronic acromioclavicular (“AC”) joint arthropathy.[1]
[1]See exhibits S, W1, W2, W3 and W4
6 Before sustaining the injury, the plaintiff worked as a subcontractor for the employer. He worked at least 40 hours per week, earning $40.00 per hour, gross. Following his injury, the plaintiff returned to work with the employer, although he was performing lighter duties. When the employer ceased operation, the plaintiff was initially unable to find suitable alternative employment; however, he was able to find work with RS Painting Services (“RS Painting”), domestic house painters, as a subcontractor performing duties tailored to accommodate his physical limitations. The duties he performs have been specifically modified so that he can avoid any tasks that impact negatively on his shoulder. He is always rostered to work with a co-worker who performs those tasks that the plaintiff is incapable of performing. The plaintiff can only paint the lower parts of walls, leaving his co-worker to paint the upper parts and ceilings. He cannot handle certain tools and equipment, such as a heavy sander. His movements are restricted. I shall elaborate on the circumstances of the plaintiff’s current employment a little later.
7 When working for the employer, the plaintiff had the capacity to earn $40 per hour; however, with RS Painting, he is only able to earn $30 per hour. The plaintiff states that he is unable to work for the number of hours that he was able to work prior to his injury. He is unable to tolerate more than approximately 30 to 32 hours per week, although his average hours of work per week are less than 25 hours.
8 By way of education and employment history, the plaintiff was born in 1960 and at the date of hearing, he was aged fifty-nine years. He completed Year 11 at age seventeen. After leaving school, the plaintiff joined the Royal Australian Navy, where he remained for approximately four years. His subsequent working career has largely involved work on houseboats, where he has performed tasks including fibre-glassing, sanding, welding, drilling, painting and carpentry work. He also spent a short time working in the construction of domestic sheds.
The application
9 The plaintiff claims that he has sustained serious injury, both in terms of pain and suffering and in terms of loss of earning capacity.
10 By Originating Motion dated 1 November 2018, the plaintiff seeks:
(a)A declaration that the plaintiff has a “serious injury” within the meaning of Division 2 of Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”);
(b)An order that the plaintiff be granted leave pursuant to s335 of the Act to institute proceedings for damages against the defendant in respect of injuries he sustained in the course of his employment with Kalari Constructions Pty Ltd; and
(c)Costs.
The hearing
11 The hearing commenced before me on 7 May 2019 and continued on 8 and 10 May 2019. Mr A Ingram SC appeared with Mr M Nightingale on behalf of the plaintiff. Mr A Middleton appeared on behalf of the defendant.
The issues
12 At the commencement of the proceedings, on behalf of the defendant, Mr Middleton conceded that the plaintiff should be granted a certificate in respect of his application to be granted leave to bring common law proceedings to recover pain and suffering damages for the right shoulder injury that he sustained in the fall.[2]
[2]See also defendant’s written submissions, exhibit 9, paragraph 2: “The defendant has conceded a Certificate for Pain and Suffering”
13 The defendant does not dispute that the plaintiff has been unable to return to his pre-injury duties. It does not appear that he could gain “unprotected”[3] employment in the houseboat industry.
[3]For example working full hours in unrestricted or unmodified duties
14 The plaintiff does not assert that his income earning capacity has been obliterated, rather he submits that the work he has been able to find for himself does not reflect the realities of being a house painter because without assistance, he cannot work on a complete job performing all the tasks inherent in such a job. Nor can he work the number of hours that he previously did, and he does not receive the same rate of pay as he previously did. Put another way, the plaintiff submits that the work he is currently undertaking is in the nature of “protected employment” – a job modified to accommodate his particular needs. The work offered by RS Painting is seasonal in nature, with less work being available in the winter months. He is unable to perform “unprotected” duties at all, and for this reason, he is effectively unemployable during the periods that RS Painting work is unavailable.
15 The plaintiff lives in Merton, which he claims is a remote area with few employment opportunities. The defendant denies this, contending that the plaintiff has a greater capacity for work than he has claimed. The defendant submits that the unavailability of work in the winter months does not mean that the plaintiff lacks the capacity to work if work was available.
16 With regard to his application for leave to bring common law proceedings to recover damages for loss of earning capacity, the parties have defined the sole issue for determination in this case as whether the plaintiff has established, on the balance of probabilities, that he has sustained a permanent loss of earning capacity of 40 per cent or more.[4]
[4]See for example exhibit 9, paragraph 4
Overview of the Plaintiff’s case
17 The plaintiff submits that the following factors combine to establish that the plaintiff has sustained a permanent loss of earning capacity of 40 per cent or more:
(i)The plaintiff’s physical injury must be taken to be “serious” in terms of pain and suffering, meaning that the statutory thresholds must be taken to have been satisfied in that regard;
(ii)Ever since the injury, effectively the plaintiff has worked in protected employment;
(iii)The plaintiff has limited academic or trade qualifications – he has only ever worked in manual labouring jobs;
(iv)The plaintiff’s physical restrictions are such that he is incapable of working unrestricted hours with unmodified duties in manual labouring jobs;
(v)The plaintiff’s employment options are severely limited by the fact he lives in a relatively isolated town; and
(vi)When averaged out, the number of hours of work that the plaintiff is capable of earning per annum demonstrates a loss of earning capacity of 40 per cent or more.
Overview of the Defendant’s case
18 In summary, the defendant submits that the plaintiff has failed to establish that he has sustained a permanent loss of earning capacity of 40 per cent or more because:
(i) The plaintiff has found suitable alternative employment;
(ii) The plaintiff is not working in effective “protected employment”;
(iii) Even if the plaintiff’s work duties are regarded as “protected employment”, the plaintiff has evinced a capacity to work up to 32 hours per week; and
(iv) Whether calculated by reference to the number of hours worked or the dollar value of those hours, when compared with the “without injury earnings”, the plaintiff has not established a 40 per cent loss of earning capacity.
Summary of findings and orders
19 For the reasons explained in this judgment, I find as follows:
(i) It is not in controversy that as a result of his injury, the plaintiff has suffered a loss of earning capacity. The issue is whether he has demonstrated that he has suffered a loss of earning capacity of 40 per cent or more.
(ii) I agree with the plaintiff’s counsel that the period immediately prior to sustaining the injury, that is in the financial year commencing 1 July 2014 until the date of injury (15 December 2014), most fairly represents the plaintiff’s “without injury” earning capacity.
(iii) Sixty per cent of the plaintiff’s “without injury” earning capacity is not less than $514.15 per week, or annualised in the amount of $26,735.80.
(iv) The plaintiff’s “after injury” earning capacity is no greater than $289.96, or $15,077.92.
(v) The plaintiff has suffered a loss of earning capacity of at least 40 per cent.
(vi) The plaintiff will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
(vii) The loss of earning capacity consequence of the injury is fairly described as being “more than significant or marked”, and as being “at least very considerable”.
20 Leave will be granted to the plaintiff under s335 of the Act to bring common law proceedings to recover pecuniary loss damages for injuries he sustained in the course of his employment with Kalari Constructions Pty Ltd.
Statutory framework
21 For present purposes, s325(1) of the Act defines “serious injury” as follows:
“serious injury means—
(a)permanent serious impairment or loss of a body function … .”
22 Section 325(2) provides:
“For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—
(a)the following definitions apply—
…
income from personal exertion has the same meaning as in section 6(2) of the Transport Accident Act 1986;
(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, …. 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….;
(c)an impairment or loss of a body function …. 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, …. fairly described as being more than significant or marked, and as being at least very considerable;
…
(e)if a worker relies upon paragraph (a) … of the definition of serious injury in subsection (1), … 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) …. that—
(i)at the date of a decision under section 335(2)(c) … the worker has a loss of earning capacity of 40 per cent or more, measured … as set out in paragraph (f); and
(ii) the worker … 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. … .”
23 “Suitable employment” is defined in s3 of the Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a)having regard to the following—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker’s pre-injury employment;
(iii)the worker’s age, education, skills and work experience;
(iv)the worker’s place of residence;
(v) any plan or document prepared as part of the return to work planning process;
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b)regardless of whether—
(i) the work or the employment is available; or
(ii) the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes—
(c)employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
(d)employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
(e)suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education.”
24 The applicable principles arising from provisions in almost identical terms in the Accident Compensation Act 1985[5] were explained in Yirga-Denbu v Victorian WorkCover Authority:[6]
[5]Accident Compensation Act 1985, s134AB(38)(b), (c), (e), (f) and (g)
[6][2018] VSCA 35; See also De Bono v Victorian WorkCover Authority [2019] VSCA 85
“[70]Section 134AB(38)(e)(i) of the A[ccident] C[ompensation] Act requires a worker to demonstrate, as a condition precedent to obtaining leave to commence a proceeding claiming pecuniary loss damages, that, at the date of hearing of the application, he or she had a loss of earning capacity of 40 per cent or more ‘measured’ as set out in s 134AB(38)(f). As was said in Hayhill Pty Ltd v Hodge,[7] that measurement of the claimed loss of earning capacity, as prescribed in s 134AB(38)(f), necessitates a comparison of two matters:
[7][2006] VSCA 194 [2] (“Hayhill”‘).
(a)the gross income the worker is earning or is capable of earning in suitable employment at the date of the hearing (referred to in some authorities as ‘after injury earnings’); and
(b)the gross income that the worker was earning or was capable of earning ‘during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred’ (again referred to in some authorities as ‘without injury earnings’).
[71]In Acir v Frosster Pty Ltd,[8] J Forrest J summarised a number of principles relevant to the performance of the exercise required to measure loss of earning capacity as set out in s 134AB(38)(f). The principles identified in Acir were subsequently endorsed by this Court in the Herald & Weekly Times v Jessop.[9] In Acir, J Forrest J said:
[8][2009] VSC 454 (“Acir”)
[9][2014] VSCA 292 (“Jessop”)
‘First, and importantly, s 134AB(38)(f) 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.
Second (and a corollary of the first proposition), in determining without injury earning capacity, the Court is not required to make an assessment, at this stage, of loss of earning capacity as in a claim for damages. Rather, it compares the worker’s earning capacity, as defined, with the statutory formula for the assessment of after injury earnings (considered subsequently).
Third, the fixing of the gross income which most fairly reflects the earning capacity is a limited inquiry not to be confused with that made in a damages claim. It … is confined to those matters which go to the practical exercise of that capacity, not its diminution by outside events. In that regard I have in mind those matters referred to by the Minister in the Second Reading Speech, namely, increases/decreases in wages and other employment opportunities. The exercise is not to determine loss of earning capacity – which is a damages issue, but, rather, to focus on earning capacity in a limited context.
Fourth, the sub-section does not mandate a mathematical assessment of without injury earnings, such as a formula based upon the earnings of the worker over a particular period prior to the injury or at the time of injury.
…. ‘
[77]In Jessop, this Court identified the matters required to be taken into account in calculating the without injury earnings as required by s 134AB(38)(f)(ii). The Court said:
‘[F]or the purposes of s 134AB(38)(f)(ii) of the Act, a worker’s earning capacity represents a capital asset which, when exercised, produces income from personal exertion. It follows that a worker’s ability to earn income through personal exertion depends on the nature and quality of the worker’s capital asset and his or her capacity and willingness to use it to earn income. Thus, the worker’s physical and mental capacities to work are relevant, as are the type of work the worker is able to perform, the remuneration for that work and the hours that the worker is willing to work.
The facts of each case and the manner in which the worker presents his or her case will influence which factors are relevant to the application of s 134AB(38)(f)(ii) of the Act and the relative importance of those factors. The availability of work at the worker’s pre‑injury place of employment will not necessarily be relevant to an assessment of a worker’s earning capacity for the purposes of s 134AB(38)(f)(ii). It may, however, have probative value in some cases. For example, it may inform an assessment of a worker’s willingness to work where, over many years, work has been plentiful but the worker has always refused to accept offers to work beyond a certain number of hours per week. Availability of overtime work at the worker’s pre‑injury place of employment may also be relevant where the worker seeks to include a particular level of overtime in his or her calculations of without injury earning capacity.
The actual hours worked by a worker and his or her actual earnings are not always the best evidence of the worker’s earning capacity for the purposes of sub‑para (ii) of s 134AB(38)(f) of the Act. They will be the best evidence under the first scenario — ‘the gross income … that the worker was earning’ — but they will not necessarily be the best evidence in relation to the other three scenarios. Under those scenarios, the court is required to fix a representative figure for earning capacity which may take into account the amount of income earned but will not necessarily equate to that amount. In Acir, J Forrest J succinctly summarised the position as follows:
‘In most cases, the inquiry will be relatively simple; the wages at [the] time of injury will be established (scenario (a)) and generally, as the Second Reading Speech makes clear, the only other question will be determining whether, pursuant to scenario (c), there has been an increase or decrease in wages and the prospects of promotion. However, at times, scenarios (b) and (d) may need to be considered, such as, where it is necessary to examine the capabilities or capacity of the worker in terms of wages which could have been potentially earned or were prospectively available post-injury (e.g., if he or she was not working full-time at the time of the injury).
The essence, then, of the inquiry is to fix a figure which ‘most fairly’ reflects the earning capacity of the injured worker, absent the subject injury.’”[10]
[10]Jessop (ibid) at paragraphs [53]–[55]; Yirga-Denbu v Victorian WorkCover Authority (ibid) at paragraphs [70], [71] and [77]
The evidence
25 The plaintiff was the only witness to be called to give viva voce evidence. The defendant did not attack the plaintiff’s credit or challenge his credibility.
26 Otherwise the parties relied on documentary evidence, most of which was not in dispute. I shall summarise the evidence relative to the topics below.
What is the most appropriate method of calculating and comparing the Plaintiff’s “without injury” earnings and “after injury” earnings?
27 Section 325(2)(f)(ii) of the Act –
“… requires the court to determine the gross income (expressed at an annual rate) that the applicant:
· was earning from personal exertion; or
· was capable of earning from personal exertion; or
· would have earned from personal exertion; or
· would have been capable of earning from personal exertion,
during that part of the period within three years before and three years after the applicant suffered injury, as most fairly reflects the applicant’s earning capacity had the injury not occurred.”[11]
[11]Acir (supra) at paragraph [165]; Jessop (supra) at paragraph [42]; Yirga-Denbu v Victorian WorkCover Authority (supra) at paragraph [73]
28 “Gross income from personal exertion” is not defined in the Act; however, as mentioned earlier, s325(2) of the Act provides that “income from personal exertion” has the same meaning as in s6(2) of the Transport Accident Act 1986.
29 Section 6(2) of the Transport Accident Act provides:
“earnings means such amount as, in the opinion of the Commission, the person concerned would have received by way of income from personal exertion but for the transport accident;
income from personal exertion in relation to a person means—
(a)the amount that is the income of that person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered; and
(b)the proceeds of any business carried on by that person either alone or in partnership with any other person; and
(c)any amount received as bounty or subsidy in carrying on a business; and
(d)the income from any property where that income forms part of the emoluments of any office or employment of profit held by that person; and
(e)any profit arising from the sale by that person of any property acquired by the person for the purpose of profit-making by sale or from the carrying on or carrying out of any profit-making undertaking or scheme—
but does not include—
(f)interest, unless that person’s principal business consists of the lending of money, or unless the interest is received in respect of a debt due to that person for goods supplied or services rendered by the person in the course of the person’s business; or
(g)rents or dividends; or
(h)any employer superannuation contribution.”
30 As mentioned, the plaintiff was engaged by the employer as a subcontractor. His business expenses must be calculated, then deducted from his earnings, as I shall explain a little later.
31 The plaintiff worked the hours of the day and the days of the week as directed by the employer. The hours and days of work would most likely have been governed by the availability of the work to be performed, together with the plaintiff’s willingness to undertake the work.
32 The evidence demonstrates that the plaintiff was a good and willing worker. There was no suggestion that before the injury he ever refused to work for the employer when the work was offered.
First method – comparison of taxation returns for the three years before and the three years after injury
33 The plaintiff’s taxation returns for the financial years ended 2012,[12] 2013,[13] 2014,[14] 2015,[15] 2016,[16] 2017[17] and 2018[18] were tendered in evidence. A summary of the plaintiff’s taxation returns for the years 2012 to 2018 was also tendered.[19]
[12]Exhibit D
[13]Exhibit H
[14]Exhibit J
[15]Exhibit K
[16]Exhibit L
[17]Exhibit One
[18]Exhibit 2
[19]Exhibit V
34 Neither party contended that a simple comparison of the pre and post injury taxation returns was a fair method of comparing the plaintiff’s “without injury” and “after injury” earning capacity. On the one hand, the plaintiff submitted that either the taxation return for the financial year ended 2012, or that part of the financial year commencing 1 July 2014 until the date of the injury (15 December 2014), should be used to assess the plaintiff’s “without injury” earning capacity. On the other hand, the defendant submitted that “the more reflective years of the plaintiff’s without-injury earning[s] are 2012 and 2014 and for the post injury earnings are 2015 and 2017. The 2016 income year is predominantly weekly payments of compensation.”[20]
[20]Exhibit 9, paragraph 30
35 I agree with counsel. A simple comparison of the plaintiff’s taxation returns for the three-year period before the injury and three-year period after the injury will not produce a fair representation of either the plaintiff’s “without injury” earnings or his “after injury” earnings.
Second method – comparison of hours worked (or capable of working), together with the hourly rate capable of earning
36 Both parties sought to rely on a comparison of the hours that the plaintiff was capable of working both before and after the injury, the hourly rate of pay, and taking into account his business expenses.
37 I agree with counsel. The fairest method of calculating the plaintiff’s “without injury” and “after injury” earning expenses is by reference to the number of hours he was capable of working, the rate of pay he was capable of earning per hour and his business expenses.
Calculation of business expenses
38 The parties agreed that to arrive at the correct figure that most fairly represents the plaintiff’s earning capacity, I should deduct the plaintiff’s business expenses from his gross pay.
39 The defendant prepared a table setting out the plaintiff’s income and expenses for the period 2012 to 2018:[21]
[21]Exhibit 9, paragraph 29
Year
EndedBusiness Income Less Business Expenses Plaintiff’s Gross Income 2012
$58,658
$17,175
$41,483
2013
$47,412
$18,547
$28,865
2014
$48,480
$7,253
$41,227
DECEMBER 2014 INJURY
Year
EndedBusiness Income Less Business Expenses Plaintiff’s Gross Income 2015
$42,680
$12,274
$30,406
2016
$40,720
$8,926
$31,794
2017
$47,310
$11,603
$35,707
2018
$22,360
$9,454
$12,906
40 I note that the injury occurred approximately midway through the financial year ended 30 June 2015, not in the year ended 30 June 2014. Also, as mentioned earlier, the defendant concedes that relying on the taxation return for the year ended 30 June 2016 is apt to mislead, because the plaintiff’s main source of income that year was in the form of compensation. Despite this, the plaintiff incurred business expenses, the legitimacy of which are not in doubt.
41 Using the above table, the ratio of income to expenses is as follows:
Year Ended Business Income Less Business Expenses % of expenses to income 2012
$58,658
$17,175
29%
2013
$47,412
$18,547
39%
2014
$48,480
$7,253
15%
2015
(Year of injury)
$42,680
$12,274
29%
2016
(Year where majority of income is compensation)
$40,720 $8,926 22% 2017
$47,310
$11,603
25%
2018
$22,360
$9,454
42%
42 Averaging out the ratio of expenses to income for the financial years ended 2012, 2013 and 2014, the average ratio of expenses to income (without injury) was 27.6 per cent (29 + 39 + 15 divide by 3).
43 In the financial year in which the injury occurred, the ratio of expenses to income was approximately 29 per cent.
44 In the financial year ended 2017, the ratio of expenses to income was approximately 25 per cent. Up until January 2017, the plaintiff was still working for the employer, earning $40 per hour. He was unemployed for approximately four to five months thereafter, until about May or June 2017.
45 In the financial year ended 2018, the plaintiff worked as a subcontractor for RS Painting, earning $30 per hour. The ratio of expenses to income that year was 42 per cent.
46 It is not possible to say precisely what the ratio of expenses to income was in the three years prior to the injury. I consider that the figure that best represents the ratio is 27.6 per cent, using the average of the ratios for the financial years ended 2012, 2013 and 2014. It is not possible to be accurate about the ratio for the period 1 July 2014 to 15 December 2014, because the plaintiff was off work for part of the period. He was on restricted duties for a part of the financial year ended 30 June 2015 yet the expenses relate to the whole financial year.
47 For the period post injury, I consider it appropriate to disregard the financial year ended 2016 for the reasons explained by the defendant, namely because the bulk of the plaintiff’s income that year was comprised of compensation. The financial year ended 30 June 2017 straddled two periods of employment – with the employer until January 2017, and thereafter, perhaps for one month with RS Painting. The plaintiff did not work for the full year: until January, he was earning $40 per hour and from approximately May or June, with RS Painting, he was earning $30 per hour.
48 For the entire financial year ended 30 June 2018, the plaintiff worked for RS Painting, earning $30 per hour. The ratio of expenses to income was 42 per cent. In my view, this ratio is a fair representation of the ratio, taking into account the number of hours worked during that financial year, together with the business expenses incurred.
49 In short, before the injury, the plaintiff’s average ratio of expenses to income was 27.6 per cent, and after the injury, the ratio of expenses to income is 42 per cent. In other words, before the injury, the plaintiff was capable of earning $40 per hour as a subcontractor, with business expenses of 27.6 per cent. The plaintiff is now capable of earning $30 per hour, with business expenses of 42 per cent.
50 An alternative means of assessing the plaintiff’s earning capacity is to average out his business expenses more generally. Many of the plaintiff’s business expenses were constant, such as motor vehicle expenses, depreciation and the like, regardless of the income derived or the hourly rate of pay. Using this method, the plaintiff’s business expenses average out to $12,176 per annum. This figure is close to the one proposed by the defendant at $12,000 per annum.[22] I consider this to be the simplest and fairest method of calculating the plaintiff’s business expenses. Accordingly, I propose to use the figure of $12,176 to deduct from the plaintiff’s gross income earning capacity in my assessment of “without injury” earnings.
[22]Exhibit 9, paragraph 32, although suggested in respect of business expenses “after injury”
“Without injury” earnings
(Before the injury, what was the Plaintiff’s capacity for employment? How many hours per week was he capable of working? What was he capable of earning per hour, week, or year?)
51 Apart from the summary prepared by the plaintiff’s counsel of invoices sent by the plaintiff to the employer for the period 1 July 2014 to 15 December 2014, and the select bundle of invoices covering the period 16 November 2016 to 28 January 2017,[23] no other business records were tendered referable to the three-year period pre-injury identifying the actual number of hours that the plaintiff worked for the employer during an average week, or for how many weeks that he worked each year.
[23]Exhibit 4
52 When cross-examined before me, the plaintiff testified that before the injury, he worked at least 40 hours per week.[24]
[24]Transcript (T) 43
53 The defendant’s submissions seem to support by implication the plaintiff’s evidence about his pre-injury capacity to work in excess of 40 hours per week. The defendant submits that in respect of his post-injury work capacity, when the plaintiff was still working for the employer, he was working for 42.5 hours per week.[25] Accordingly, on the defendant’s case, the work was both available and the plaintiff had a capacity to work for 42.5 hours (albeit on restricted duties). It is reasonable to infer that if the plaintiff was able and willing to work post injury for the employer for 42.5 hours per week, he had the capacity to do so without injury.
[25]Exhibit 9, paragraph 28
54 The plaintiff submits that there are two possible sources from which to draw when calculating his pre-injury earning capacity:
(i) The plaintiff’s 2011-2012 taxation return;[26] or
(ii) The summary prepared by the plaintiff’s counsel of the plaintiff’s earnings from 1 July 2014 to 15 December 2014.[27]
[26]Exhibit D
[27]Exhibit F
55 The plaintiff’s taxation return for the financial year ending on 30 June 2012 shows gross earnings of $58,658 with expenses of $17,175 (approximately 29 per cent of gross earnings), leaving $41,483 in profit for that financial year. This equates to average weekly earnings of $797.75 for that financial year. Sixty per cent of this net amount is $478.65 per week.
56 The alternative method proposed by the plaintiff for calculating the plaintiff’s average earning capacity before the injury is based on counsel for the plaintiff’s summary of the plaintiff’s earnings from 1 July 2014 to 15 December 2014, Exhibit F. This summary shows that during this period, the plaintiff’s gross earnings were $32,840, less expenses of $12,274 (approximately 37 per cent of gross earnings), resulting in a net income of $20,566 for the 24-week period. According to the plaintiff, the weekly figure of $856.91 is derived, 60 per cent of which is $514.15. I note that this method applies income for approximately six months, but expenses for the whole year. At any rate, the plaintiff argues that his average weekly earnings from 1 July 2014 to 15 December 2014, $856.91, is the preferable figure on which to base his “without injury” earning capacity.
57 That said, in final submissions, counsel for the plaintiff referred to a third method of determining the plaintiff’s “without injury” capacity for employment. This method focussed on the number of hours that the plaintiff was ready, willing and able to work, rather than the actual hours he did work.[28]
[28]Following the reasoning in Jessop (supra); Yirga-Denbu v Victorian WorkCover Authority (supra); Guppy v Victorian WorkCover Authority [2010] VSCA 164; Transcript (“T”) 127-130
58 On the other hand, the defendant argues that an accurate calculation of the plaintiff’s earning capacity before the injury is best achieved by reference to the plaintiff’s taxation returns for the financial years ended 2012, 2013 and for the relevant part of the financial year commencing 1 July 2014, up to the point of injury.
59 The defendant submits that the “without injury” income earning capacity is most fairly reflected in the financial years 2012 and 2014. The defendant submits that plaintiff’s annual earnings for 2012 was $41,483 (after deduction of expenses) and $41,227 (after deduction of expenses) for 2014. Averaging out those two years results in an annual income of $41,355, or $795.29 per week, 60 per cent of which is $477.17.[29]
Discussion – “without injury” earning capacity
[29]Exhibit 9, paragraph 30
60 I am satisfied that before the injury, the plaintiff was capable of performing all of the duties inherent in working as a houseboat repairer.
61 The plaintiff worked as a subcontractor capable of earning $40 per hour.
62 The plaintiff was capable of working at least 40 hours per week, and most probably 42.5 hours per week, if not 45 hours per week. At any rate, he was willing to work 42.5 hours per week post injury and there is nothing to suggest that he was not willing to work that number of hours before injury. In his evidence before me, the plaintiff testified:
Q: “Thirty-eight hours [working week] I believe is the norm?---
A: … Sorry, I haven’t done 38 hours since I’ve started work.”[30]
[30]T43
63 The taxation returns for the three-year period prior to injury do not assist in identifying the precise number of hours per week that the plaintiff was capable of working. They show the sum total of all hours worked over 52 weeks.
64 It is possible to gain insight into the plaintiff’s capacity and willingness to work by reference to exhibit F, counsel’s summary of the plaintiff’s invoices for the period 1 July 2014 to 15 December 2014. In fact the first invoice refers to the period 14 July to 18 July 2014. I have prepared a table based on exhibit F:
Invoice
Dates worked
Days in the week
Hours
636341
14/7 – 18/7
5
35
636342
19/7 - 25/7
6 if count Saturday, or 7 if also count Sunday[31]
44
636343
28/7 – 1/8
5
40
636344
4/8 – 8/8
5
40
636345
11/8 – 15/8
5
24
636346
18/8 – 22/8
5
40
636347
25/8 – 29/8
5
40
636348
30/8 – 5/9
6 if count Saturday, or 7 if also count Sunday
45
636349 8/9 – 12/9 5 40 173551
18/9 – 24/9
6 if count Saturday, or 7 if also count Sunday
45
173552
22/9 – 26/9
5, but I note that there appears to be a double counting of 22, 23 and 24 September
40
173553
30/9 – 3/10
4
40
173554
6/10 – 10/10
5
40
173555
13/10 – 17/10
5
40
173556
23/10 – 31/10
8 if count Saturday, or 9 if also count Sunday
55
173557
5/11 – 7/11
3
24
173558
10/11 – 15/11
6 (15/11 was a Saturday)
40
173559
17/11 – 20/11
4
32
173560
21/11 – 28/11
7 if count Saturday, or 8 if also count Sunday
40
173561
1/12 – 5/12
5
32
173562
6/12 – 12/12
6 days if exclude Sunday, or 7 if include Sunday. 6/12 was a Saturday
45
[31]The plaintiff stated he sometimes worked on a Saturday but there is no evidence that he also worked on Sundays
65 In the period covered by the abovementioned invoices, from 14 July 2014 to 12 December 2014, there were 152 days including the first and last dates. This equates to 21.7 weeks. In that period, the plaintiff worked on some weekends. The total hours invoiced for that period was 821 hours, divided by 21.7 weeks = 37.83 hours on average. The average number of hours does not reflect the fact that the plaintiff was willing and able to work up to 45 hours per week, as is evident from the invoice covering the period Saturday, 30 August to Friday, 5 September 2014.
66 The plaintiff’s contention that I should find that the plaintiff’s pre-injury hours are most fairly represented by an average of 40 hours per week is a safe, reasonable and sensible position in my view. At any rate, the defendant does not suggest otherwise.
67 I consider the reason why the fairest approach is to determine the number of hours that the plaintiff was capable of working per week is because the plaintiff was engaged as a sub-contractor. He worked when the work was available, on the days it was offered. So much is clear form his evidence, which is supported by exhibit F. This approach is consistent with authority.[32]
Summary of findings – “without injury” earning capacity
[32]Jessop (supra); Yirga-Denbu v Victorian WorkCover Authority (supra); Guppy v Victorian WorkCover Authority (supra)
68 For the reasons set out above, I consider that before the injury, the plaintiff was capable of working without physical restrictions or limitations for no fewer than 40 hours per week. There is no dispute that he was capable of earning (and did earn) $40 per hour.
69 I agree with the defendant that allowance should be made for holiday and/or sick leave. I consider that the defendant’s contention that 48 weeks should be the multiplicand is fair and reasonable.[33] This allows four weeks’ leave per annum.
[33]Exhibit 9, paragraph 32
70 I consider it appropriate to apply an average annualised deduction for business expenses in the amount of $12,176.
71 Assuming the plaintiff was capable of working for 48 weeks of the year, allowing four weeks’ leave, and after deducting business expenses, the annualised figure that the plaintiff was capable of earning is $64,673, 60 per cent of which is $38,744 or $746.22 per week:
40 hours per week x $40 = $1,600 (per week) $1,600 x 48 weeks = $76,800 (per annum) Less business expenses $12,127 (per annum) = $64,673
(or $1,243.71 per week)
$64,673 x 60% = $38,804 $38,804 ÷ 52 = $746.22
72 If I were to average the plaintiff’s business expenses that were incurred prior to the injury (for the financial years ended 2012, 2013 and 2014), the calculations would be as follows:
$17,175 + $18,547 + $7,253 = $42,975 ÷ 3 = $14,325.
73 The figures in the above table would therefore be adjusted as follows:
40 x $40 = $1,600 $1600 x 48 weeks = $76,800 Less business expenses $14,325 = $50,348
(or $968.23 per week)
$50,348 x 60% = $30,209 $30,209 ÷ 52 = $580.94
74 The above calculations notwithstanding, the plaintiff submits that figure that most fairly represents the plaintiff’s “without injury” earning capacity after the deduction of business expenses is $856.91 per week, 60 per cent of which is the amount of $514.15. In view of my own calculations, I consider it fair and reasonable to hold that the figure that most fairly represents the plaintiff’s “without injury” earning capacity is not less than $856.91 per week.
“After injury” earnings
75 In his first affidavit, sworn 30 April 2019,[34] the plaintiff stated:
“… [M]y hours of work in my present employment [with RS Painting] are not nearly those which I was previously able to work. Particularly in the winter months, my hours of work are quite limited, sometimes not working for a number of weeks in a row, and beyond this my hours of work are limited year round because of my inability to physically handle more than about 30-32 hours. … .”[35]
[34]Exhibit C
[35]Exhibit C, paragraph 2
76 The defendant submits that I should assess the plaintiff’s “after injury” earning capacity by reference to the work in which he was engaged with the employer when he returned to work. It is not in controversy that the plaintiff returned to work for the employer after the injury and that he continued to work there until January 2017. As mentioned earlier, the employer went into liquidation not long after that. It is therefore also not in controversy that the plaintiff cannot return to work for the employer as that job no longer exists.
77 During the period between his return to work and the termination of his services, the plaintiff was working 42.5 hours per week. The defendant submits that this number of hours’ work per week fairly represents the plaintiff’s capacity.[36]
[36]Exhibit 9, paragraphs 24-25
78 On the other hand, the plaintiff submits that the work performed by the plaintiff for the employer after the injury does not represent the plaintiff’s true capacity for employment because for that entire period, the plaintiff was on light or restricted duties, meaning that he was engaged in “protected employment”. The plaintiff also observes correctly, in my view, that the law does not require a worker to perform duties that would expose the worker to the real risk of aggravating injury.[37]
[37]Ryan v The Grange at Wodonga Pty Ltd & Ors [2015] VSCA 17, particularly at paragraphs [69]-[71]
79 The defendant denies that the plaintiff’s duties with the employer following the injury should be regarded as a period of “protected employment”. The defendant submits that the medical evidence establishes that the plaintiff has a capacity for full-time employment performing his pre-injury duties or, at the very least, the duties he is currently performing for RS Painting. The defendant however concedes that “restrictions relating to overhead work” should be imposed on the plaintiff’s work duties.[38]
[38]Exhibit 9, paragraph 23
80 When assessing a worker’s capacity for employment, the nature of the worker’s duties in the period post injury must be examined carefully to determine whether they demonstrate a true capacity for employment. In other words, whether that period of employment can properly be regarded as “suitable employment”.[39] When the worker is capable only of performing light or restricted duties, a serious question arises as to whether the worker is engaged in suitable employment.
[39]Pisano v Precision Solid Plasterers Pty Ltd [2012] VSCA 226, particularly at paragraph [26]; Hamidi v KAB Seating Pty Ltd [2007] VSCA 151, particularly at paragraphs [40] and [43]; Poholke v Goldacres Trading Pty Ltd & Victorian WorkCover Authority [2016] VSCA 232, particularly at paragraphs [83]-[87]
81 There is no doubt that prior to the injury, the plaintiff was working in an unrestricted fashion. He was not limited to the number of hours of work or the nature of the work. After the injury, he returned to work on light duties, and ever since, limitations have been imposed on the performance of some of the physical aspects inherent in his work.
82 I now turn to the medical evidence relevant to the question of whether the plaintiff’s periods of employment after the injury should be regarded as “protected employment”:
Dr Zhang, the Plaintiff’s general practitioner[40]
[40]Exhibit P
83 Dr Zhang issued certificates of capacity to work (none of which were tendered in evidence), subject to restrictions.[41] In her report of 19 February 2016, Dr Zhang reported:
“(c) Present capacity for employment:
The last consult I had with Mr Anthony Stephens was on 3rd July 2015 when he could return to full time work as he had a capacity for pre-injury employment.”[42]
[41]T22-25
[42]Exhibit P, page 2
84 In view of the fact that Dr Zhang placed restrictions upon the plaintiff in the certificates of capacity that she issued, I do not take this to mean that the plaintiff performed his normal duties, that he was capable of performing his normal duties, or that his work was unrestricted.
Mr Jacobson, treating orthopaedic surgeon[43]
[43]Exhibit S
85 Mr Jacobson last reviewed the plaintiff on 16 February 2016. He reported:
“c) Present capacity for employment
Mr Stephens at his last review had a capacity for employment. His right shoulder range of motion and strength had improved. He still had residual symptoms associated with his shoulder and ulnar nerve irritation.
At his last review, he could perform light to moderate duties. … He should avoid heavy lifting ˃30kg, reaching forwards with weight ˃10kg in hand or repetitive overhead activities. He has capacity to drive and climb ladders.
d) Prognosis
Mr Stephens has had improvement with time and physiotherapy. I feel that his shoulder prognosis is good for future capacity to work and recovery. There remains a possibility of some residual shoulder symptoms which may require some ongoing activity restrictions. I would be hopeful that surgery won’t be required.
….
e) Has our client’s condition stabilised and if not, anticipated date of stabilisation?
I feel that Mr Stephen’s condition has stabilised.
f) The likelihood of further deterioration
There remains a moderate chance that Mr Stephens will experience residual shoulder or ulnar nerve related symptoms. While I would advise an ongoing course of non-operative management at this stage future surgery may still be required – this would take the form of a right ulnar neurolysis (release) and a shoulder biceps tenodesis +/-rotator cuff surgery.
Deterioration, if it were to occur, may happen over a period of years.”[44]
[44]Exhibit S, page 3
86 I do not consider that Mr Jacobson’s report should be interpreted as an endorsement to the effect that the plaintiff was cleared for full-time, unrestricted work in his pre-injury employment.
Ms Libby Gobbart, physiotherapist[45]
[45]Exhibits Q1, Q2, Q3 and Q4
87 In her first report, dated 26 February 2016, Ms Gobbart stated:
“c) Present capacity for employment:
Anthony has been working 3 days a week, and this week he is increasing to 4 days per week. He has modified duties: avoiding prolonged elevation of the right arm and he is to take frequent rest breaks. He is able to manage all work tasks but he needs to rotate work tasks to enable him to come off the heavy sander for a rest break. He reports he cannot use the large sander for longer than 4 hours continuous. He reports he can manage the large sander with 30 minute intervals, however, this makes the work task difficult to complete, so he prefers to use the smaller sander to complete the task.
d) Prognosis
I feel Anthony has a good prognosis for recovery and return to pre-injury work duties.
e) Has our client’s condition stabilised and if not anticipated date of stabilisation:
Anthony has not yet stabilised in his recovery. I anticipate stabilisation by December 2016.
f) The likelihood of further deterioration:
There would be a risk of deterioration if Anthony does not maintain the strength of his right shoulder complex, as the ability of the stabilising mechanism of his upper limb to withstand repeated overhead forces would be adversely affected. The likelihood of this happening would be low if he maintains his strength.”[46]
[46]Exhibit Q1, pages 1-2
88 In her second report, dated 5 December 2016, Ms Gobbart stated:
“c) Present capacity for employment:
Anthony is currently working full time at his preinjury duties.
d) Prognosis
Anthony continues to suffer right trapezius and medial scapula[r] pain with driving longer than 1 hour. He also gets some right shoulder pain after working overhead continuously. He can manage these symptoms with stretches and heat and it eases by the next day. He has reduced the number of overhead tasks at work to assist in self managing this. I feel he will continue to get some level of aggravation depending on the amount of overhead tasks and driving he performs.
e) Has our client’s condition stabilised and if not anticipated date of stabilisation:
I feel Anthony’s condition has now stabilised. His outcome measures show no detectable change over the past 6 months.
f) Likelihood of further deterioration:
There would be a risk of deterioration if Anthony does not maintain the strength and stability of his right shoulder region. He requires a strong shoulder to withstand repeated overhead forces/ movements.”[47]
[47]Exhibit Q2, pages 1-2
89 At the time of writing these reports, the plaintiff was still working for the employer, and he was having regular physiotherapy sessions. Although Ms Gobbart described the plaintiff as working full time at his pre-injury duties, she went on to explain that he was doing so with difficulties, with modifications to his work practices and with resulting symptoms.
90 In her third report, dated 24 October 2017,[48] Ms Gobbart made it clear that the plaintiff was no longer receiving physiotherapy treatment from her practice, Alexandra Physiotherapy. His final session was conducted on 19 December 2016. Accordingly, Ms Gobbart emphasised that she could not comment on the plaintiff’s current status. Ms Gobbart made similar observations in her fourth report, dated 30 November 2018.[49] She confirmed that she had not seen the plaintiff since his final discharge from Alexandra Physiotherapy.
[48]Exhibit Q3
[49]Exhibit Q4
91 I do not consider that Ms Gobbart’s report should be interpreted as clearing the plaintiff for full-time unrestricted duties in his pre-injury employment.
Mr Chehata, orthopaedic surgeon[50]
[50]Exhibits T1 and T2
92 In his first medico-legal report, dated 14 December 2017, Mr Chehata noted that the plaintiff was working “2 – 3 days [per week]”.[51] At this time, the plaintiff was working at RS Painting.
[51]Exhibit T1, page 1
93 Mr Chehata described the plaintiff’s current symptoms as follows:
“Mr Stephens currently presents with ongoing ache in the right shoulder, coupled with pins and needles and numbness in the little finger, and ulna side of the ring finger. He has diffuse pain radiating from the shoulder up into the cervical spine, coupled with medial scapulothoracic border pain, and olecranon fossa pain on the right elbow.
He requires anti inflammatories, including Advil which he takes every day and finds that he is unable to sleep on that side. He is a right handed painter that was employed to paint house boats. The necessity for overhead activity, coupled with axial repetitive loading whilst working has become a significant factor in his change of employment. He finds that overhead activity causes fatigue pain with any weight or load, and is now forced to split his occupation with another person, where the other partner performs the overhead activities, while he performs the lower levels.
Although Mr Stephens was able to return to full time employment with his previous employer, the employer then went into liquidation and closed his business and he is currently working two to four days a week self employed and he relies on another person to split the work load.
…
Present capacity for employment?
Mr Stephens has a capacity for employment, but it is the overhead activities, especially as a painter that is the major issue. He is able to perform duties below the level of the shoulder, in an unrestricted fashion, but it is the overhead activity that is the major hindrance to his re employment, and return to pre injury duties.
Prognosis
Mr Stephens’ prognosis is guarded, as there is some delamination elements, this certainly bodes well for his below shoulder activity, but obviously the above shoulder activity will be limited due to the fatigue style pain due to delamination tears of the infraspinatus and the SLAP tearing.
Has our client’s condition stabilised and if not anticipated date of stabilisation?
Yes, the condition has stabilised.
The likelihood of further deterioration?
There is no likelihood of glenohumeral joint arthritis, or deterioration in terms of the joint, but unfortunately the MRI scan confirming delamination means overhead activity is likely to be limited and weakness is driven by the tearing and SLAP tear. He is certainly likely to be permanently restricted in his ability to perform overhead activity which impacts directly onto his long term employment prospects.”[52]
[52]Exhibit T1, pages 3, and 5-7
94 In his updated report of 27 March 2019,[53] Mr Chehata noted that the plaintiff had had an ultrasound guided Cortisone injection with minimal relief. He also recorded that the plaintiff was suffering ongoing shoulder pain at the end ranges, as well as ongoing cervical spine pain, and radiating trapezial muscular spasm. The plaintiff was then working two to three days per week. Mr Chehata stated:
“… [The plaintiff] has continued to push through his pain to continue working and painting. He finds the vibrations using a sander irritating and aggravates the ulna nerve symptoms in his right hand.”[54]
[53]Exhibit T2
[54]Exhibit T2, page 3
95 Mr Chehata recorded that the plaintiff had an improved range of movement[55] although he was suffering from ongoing fatigue pain, as well as generalised pain across the shoulder, with radiating pain down the back of the triceps, and stinging pain along the medial aspect of the right elbow.[56]
[55]Exhibit T2, page 3
[56]Exhibit T2, page 4
96 Mr Chehata considered that the plaintiff’s capacity for employment has been significantly reduced:
“… with an inability to perform continuous hours, and he is now subcontracting 3-4 days per week.
…
His prognosis at best is guarded. This has not changed since the time of the injury from 2014.
…
The condition has stabilized, and it is unlikely to deteriorate in the future.”[57]
Dr Hwang, occupational physician[58]
[57]Exhibit T2, page 5
[58]Exhibit 7
97 The defendant submits that the plaintiff provided a history to Dr Hwang that is inconsistent with the plaintiff’s submission that the plaintiff can only work, at best, 20 hours per week. Rather, so the defendant submits, the history taken by Dr Hwang is more consistent with the plaintiff’s evidence as set out in his second affidavit,[59] where he deposed that he could not “physically handle more than about 30 to 32 hours.”[60]
[59]Exhibit C
[60]Exhibit C, paragraph 2
98 Dr Hwang reported:
“Upon questioning Mr Stephens indicated that he does small amounts of ceiling painting but this is very limited. He described generally working a total of about four days a week which may be four continual days or four days separated by a day in between or sometimes two half days and three full days. On occasions he pushes to full-time work five days a week but he finds this too much to sustain regularly.”[61]
[61]Exhibit 7, page 2
99 Under the heading “Current Status”, Dr Hwang stated:
“… Mr Stephens continues to undertake normal duties having been able to find alternate [scil. alternative] employment as a painter after closure of his previous workplace. He described that at rest he is aware of some degree of discomfort in the right shoulder, right side of neck and right arm.
He is able to manage his normal day to day activities …
… [H]e avoids overhead work and at work painting he tends to paint the lower sections whereas his work mate paints the higher areas in general. … .”[62]
[62]Exhibit 7, page 4
100 Dr Hwang considered that the plaintiff –
“… has the capacity to undertake full-time duties as a painter but acknowledge that he may have increased pain after a period of painting. Nevertheless, it appears that he has formed an arrangement whereby he can undertake most of the painting at a lower level to avoid significant amounts of ceiling painting. I consider this to be helpful.
I do not consider that ongoing painting duties will be to the detriment of his health. … .”[63]
[63]Exhibit 7, page 8
101 When cross-examined, the plaintiff denied that he was performing normal duties at the time he was assessed by Dr Hwang.[64] There is merit in the plaintiff’s evidence in this regard, as Dr Hwang acknowledged that the plaintiff relied on a workmate to perform the overhead painting tasks. The defendant does not challenge this evidence. To the contrary, the defendant submits that because there is someone available to assist the plaintiff to perform his work duties, he should be regarded as being engaged in suitable alternative employment.
Dr Majid Rahgozar, occupational physician[65]
[64]T65, L19-21
[65]Exhibit 5
102 In his report dated 24 November, 2015,[66] tendered on behalf of the defendant, Dr Rahgozar considered that the plaintiff did not have a capacity for unrestricted employment:
[66]Exhibit 5
“4. In your clinical opinion, based on the work-related injury/ies (if applicable) does the worker have a capacity for his pre-injury hours and duties?
In my opinion, considering the multiple natures of conditions Mr Stephens is suffering from namely:
· right shoulder pain
· right wrist and hand pain and numbness
He does not have capacity for pre-injury duties. He however has capacity for alternative duties with gradual increase in the number of hours of work. He can gradually increase his hours from 16 hours per week to 24 and 32 hours over the next month or two. He however should avoid using his right hand for forceful grasping of heavy objects, activities that induces vibration of the hand and arm as well as using his hand at or above shoulder level for lifting, pulling, pushing heavier than 5kg.
5.In your opinion, based on the work-related injury (if applicable) can the worker returned to work in:
· modified pre-injury duties and/or hours?
· Alternative duties and/or hours with the worker’s current or another employer?
If so, what are your recommended:
· modified/alternative pre-injury duties? …
· modified/alternative pre-injury hours?
· length of time for the modifications to remain in place?
· review timeframe?
Mr Stephens can return to gradually increasing hours of alternative duties as per above mentioned restrictions.
…
7. In your clinical opinion, if the worker remains incapacitated from some or all of his pre-injury hours and duties, could you please advise if you anticipate the worker to be able to eventually return to his pre-injury hours and duties and accordingly, if return to work with his pre-injury employer should remain the goal?
Considering his age, degenerative changes of the shoulder, as well as the inherent requirement of his job the likelihood of Mr Stephens returning to full pre-injury duties in the next six months or so it not high.
…
12. How satisfied are you that the worker has provided an honest and accurate account of his injury and presented in a genuine manner? Please detail if you would be assisted by any further information.
Mr Stephens appeared to be a straightforward historian. In my opinion there was no illness behaviour or functional overlay present in his clinical presentation.”[67]
[67]Exhibit 5, pages 7-9
103 In is affidavit sworn on 30 April 2019,[68] the plaintiff deposed:
[68]Exhibit C
“4. My main problems continue to be in my right shoulder extending down through my right upper limb and into my right little finger. I am right hand dominant so these restrictions in consequence affect me in virtually every activity that I attempt to undertake. Additionally, the pain extends up through the right side of my neck and the right side of my face and continues to cause some watering of the right eye and also I suffer from headaches.
5.I continue to find that the degree of pain which I suffer is fairly directly linked to the strains which I place upon my right shoulder and upper limb. The more active I am, the more pain I am in.
…
8. … I am in a situation where I simply have to live with the pain.”[69]
[69]Exhibit C, paragraphs 4, 5 and 8
104 When cross-examined before me, the plaintiff confirmed that after the injury when he returned to work for the employer, he only did so with restrictions:
MR MIDDLETON:
Q:“… Now, after your accident in December of 2014, it was about six months before you got back to any work. Is that correct?---
A:About the middle of 2015, I think so, yes.
Q:And when you went back, you went back on a graduated return to work on modified duties?---
A:Yes, yes.
Q:And up until that time, you had been certified unfit for any duties by either Dr Zhang, or Mr Jacobson, or the physiotherapist Gobbart?---
A:Yes.
Q:Is that correct? And the restrictions, when you went back, you were on graduated hours to start with, then you were increased, over time?--
A:Yes. Yes.
Q:And the restrictions were, if I can read the certificates properly, some of them are hand written, that there was no above shoulder work, above shoulder height work?---
A:Yes.
Q:And there were lifting restrictions of about 7 and a half kilograms. Is that right?---
A:Yes.
Q:And the restrictions did not - after you got back - you eventually got back to full time employment, full hours. Didn’t you?---
A:Full-time and perm[anent] employment with restrictions.
Q:Restrictions, yes?---
A:Yes.
Q:Yes. And the certificates, after you got back to full-time, the certificates did not impose any time restrictions on you, you know, six hours a day, three days a week or that, after you got back to full duties, but with restrictions?---
A:With restrictions.
Q:Yes. And, as at ‑ ‑ ‑.”
HER HONOUR:
Q:“So, you agree with that? The hours of work were not restricted, it was the physical activities that were ‑ ‑ ‑?---
A:Physical activities.
Q:Is that fair?---
A:Yes.”
MR MIDDLETON:
Q:“And those physical activity restrictions were working above shoulder height, and no lifting of 7.5 kilograms?---
A:And power tools. Working with power tools, yes. And sanders, which is the main tool of my trade.
Q:Now, I have here a bundle of certificates, from when you got back to restricted duties in about June of 2015, it was Mr Jacobson who provided the certificates, initially, Dr Zhang, on one occasion, and the physiotherapist, Elizabeth Gobbart who provided your certificates. Is that correct?---
A:Yes.
Q:Would you have a look at these, this bundle of certificates. They start, Your Honour, on 20 May 2015, and go through to 20 February 2016.
… .”
MR MIDDLETON:
Q:“They’re not in the court book, Your Honour.
… .
Q:Could you have a look at those, and have a look at the first one, in particular. Is that your signature on the second page?---
A:Yes.
Q:And that’s Mr Jacobson who issued that certificate?…. it looks like Mr Jacobson?---
A:Yes, Anthony Jacobson.
Q:Right. Now, will you go to the last one in that bundle, I think there’s two - they’re two-page ones, Mr Stephens. Is that your signature?---
A:Yes.
Q:And is that a certificate that was done by Ms Gobbart, the physiotherapist?---
A:Yes, (indistinct) physio.
Q:Yes. And is there anything on the restriction page, on the second page, up the top, it’s got - it’s got some dates and it says, doesn’t it, that you’re fit for suitable employment?---
A:Capacity to for suitable employment. Yes.
…
Q:In the column there [of the Certificate of Capacity], it says, ‘Increase to four days a week,’ doesn’t it, in that square? On the right hand side, in the square?---
A:Increase hours to four days a week.
Q:Yes. And what are the other restrictions in that box?---
A:‘Limits or - on duration, weight, handling capacity, repetitive or sustained postures, movement, or forces, avoid prolonged elevation of arm, frequent rest breaks’.
…
Q:No mention of power tools there?---
A:No.
Q:And when you did go back to work and got back to working a full week on restricted duties, you were using power tools from time to time, weren’t you, sanders?---
A:No, I was - I was using a battery sander, not my original big sander that is my job.
Q:But you were using the sander, weren’t you?---
A:A small sander.
Q:Yes. Now it meant you took a bit longer than normal to do the sanding job than with the big sander?---
A:No, it meant that that sander wasn’t a suitable sander for the job and I didn’t do mainly - the main work that I would’ve with that big sander.
Q:You did do sanding work though, didn’t you?---
A:With the small battery sander.
Q:Yes. Now ‑ ‑ ‑?---
A:Probably with my left arm.
… .”
HER HONOUR:
Q:“What work were you doing with the sanders?---
A:Well, the bigger sander, sanding fibreglass, sanding fascia, sanding anything. With the little sander, it didn’t do the job of that, so I would’ve been probably sanding cedar or something like that.
Q:So, you sanded the external hull with the big sander or, what, were using the big sander on in the ‑ ‑ ‑?---
A:Fibreglass roofs, fascia, now and then hulls, gunnels. With the little sander it doesn’t do the job that the big sander does so it’d be just um, finer stuff like cedar or something like that, where you don’t have to put pressure on it as much and it’s like that compared to that type of thing.”
MR MIDDLETON:
Q:“The last certificate, you will probably have it in that bundle - but the last certificate of Dr Zhang was on 3 July 2015 and that’s the last time he says you saw him. Is that your understanding, do you agree with that?---
A:Ah ‑ ‑ ‑
Q:July of 2015?---
A:That was a female and that’s probably when I moved back home. She was in Wantirna South.
Q:That’s right and you didn’t see him after that, did you?---
A:Her.
Q:Dr Zhang?---
A:No, I didn’t see her after that I don’t think.
…
Q:At the time, Dr Zhang had been treating you up until that time, along with Mr Jacobson?---
A:Mainly Mr Jacobson.
Q:Yes and in her report, Dr Zhang in her report states that - I will take Your Honour to it. At p.23 of the plaintiff’s court book, Your Honour: ‘Under present capacity for employment - and this is the report of 19 February 2016, that the last consultation that Dr Zhang had with you was on 3 July 2015: ‘When he could return to full-time work as he had a capacity for pre-injury employment.’ Now is that what Dr Zhang told you at the time, back in July of 2015, that you were fit for full-time pre-injury duties?---
A:I don’t know, as far as yet but I still obviously had the SLAP tear didn’t I - was that in 2015?
Q:You returned to work around June or July of 2015, didn’t you, on restricted duties?---
A:Restricted hours, restricted duties.
Q:And you gradually increased them?---
A:Yes.”[70]
[70]T21 - 25
105 The plaintiff went on to explain that he was only able to cope with the hours of work because he was having physiotherapy and he was “pushing himself”:
MR MIDDLETON:
Q:“[Questioning the plaintiff about the income referred to in the tax return for the financial year ended 2017] ... That was the income you earned working for this Sewell chap, correct, Ross Sewell[71] in 2017?---
[71]Ross Sewell of RS Painting
A:If it was the end of - it was June 2017 tax return?
Q:Yes?---
A:So, I had half of Kalari in it still, yes, is that right?
Q:Yes?---
A:So, there wouldn’t be hardly any of RS Painting in it.
Q:All right, so there’d be some of the RS Painting and some of the Kalari Construction?---
A:I think so, yes, I ‑ ‑ ‑
Q:You were able to earn after deductions, your business deductions, a taxable income of $35,758?---
A:That was mainly with Kalari, I think.
Q:Right but you were capable of earning that during that financial year, that amount of money?---
A:I wasn’t capable because I was still going to the physio once a week when I was working with Kalari.
Q:But you were still doing the work and earning income, weren’t you?---
A:On a restricted basis.
Q:Yes but you were able to achieve that income in that financial year?---
A:Because I was pushing myself trying to get back to normal working capacity.”[72]
[72]T29 - 30
106 The plaintiff emphasised that even with physiotherapy and restricted duties, he was “still in pain” when working with the employer.[73]
[73]T33
107 Regarding the work with RS Painting, as mentioned, the plaintiff works with overhead restrictions, and he can only do so when he feels well enough. The plaintiff acknowledged that the work is not always available:
Q: “The amount of work you are doing in the second part of 2017 and in 2018, right through until today, it is dependent upon the amount of work available in the area. Is that right?---
A:No, it’s that and also, it’s depending on how I feel – how I – how I feel to work.
Q:Has there ever been a situation where you’ve been offered work by Ross Sewell [RS Painting] and you haven’t taken it?---
A:There’s been situations where there is work and I haven’t been to work because I’m in pain.[74]
[74]T33-34
… .”
MR MIDDLETON:
Q:“So, the reason for 2018 you’re not doing as much work, are you saying it’s totally because you were unable to do it physically or is it a combination of there wasn’t enough work in the area that you wanted to work, closer to home, and a combination of being sore at times?---
A:Mainly sore, but during the winter he has got less work.
…
Q:I think we went through before lunch paragraph 2 of your affidavit. You say you have an inability to work or handle more than about 30 to 32 hours a week. Is that the case all the time?---
A:Yes.
Q:In 2018 financial year, were there weeks where you worked 30 to 32 hours and maybe even more …?---
A:Yes - maybe less.
Q:Yes. So, at times - would you be able to, at times, work 40 hours a week?---
A:Not usually, no I don’t think I have.
Q:If you have a look at your - these are extracts from your invoice book…. The first invoice on top of that numbered 473375?---
A:Yeah.
Q:Is that one that you invoiced to RS Services?---
A:Yes.
Q:Yes and is that for a period 3 December 2018 to 11 December 2018?---
A:Yes.
Q:Do you work weekends?---
A:Maybe a Saturday, maybe, it depends on what’s happening. In December I might have.”[75]
[75]T35-36
108 A clearer picture of the number of hours that the plaintiff has been working with RS Painting emerges from the invoices summarised in exhibit E, covering the period 11 July 2018 to 29 March 2019, a total of approximately 38 weeks.[76] The accuracy of the summary is not in dispute. Unfortunately, the summary does not indicate precisely which days the plaintiff worked in any one period, or for how many hours on any given day he worked. In the table below, I have set out the period covered in the respective invoices, the number of weeks covered in the billing period and the total number of hours worked during that period. In the final column I have attempted to calculate the number of hours per week, although where more than one week is covered in the relevant invoice, I have simply worked on the basis of an average.
[76]Invoices 473375 to 473383 were tendered as exhibit 3
Invoice
Dates worked
Days in the week
Hours
473366
11 (Wed) and
12 (Thurs) July
2 days - Wed and Thurs over 1 week
12
473367
16/7 (Mon) –
13/8 (Mon)
29 days over 4 weeks, including weekends – or 21 week days[77]
38 (÷ 4 = 9.5)
There is no invoice for the two weeks between 14/8 and 28/8
2 weeks
0
473368
28/8 (Tues) –
7/9 (Fri)
11 days over 2 weeks, including weekends – or 9 weekdays
37 (÷ 2 =18.5)
473369
10/9 (Mon) –
21/9 (Fri)
12 days over 2 weeks, including the weekend – or 10 weekdays
40 (÷ 2 = 20)
473370
24/9 (Mon) –
5/10 (Fri)
12 days over 2 weeks, including the weekend – or 10 weekdays
28 (÷ 2 = 14)
473371
8/10 (Mon) – 19/10 (Fri)
12 days over 2 weeks, including the weekend – or 10 weekdays
40 (÷ 2 = (20)
473372
22/10 (Mon) – 26/10 (Fri)
5 days over 1 week
18
473373
1/11 (Thurs) – 16/11 (Fri)
16 days over 3 weeks, including weekends, or 12 weekdays
43 (÷ 3 = 14.3)
473374
19/11 (Mon) – 30/11 (Fri)
12 days over 2 weeks, including the weekend – or 10 weekdays
46.5
(÷ 2 = 23.25)
473375
and
473376
3/12 (Mon) – 11/12 (Tues);
12/12 (Wed) – 20/12 (Thurs)
18 days over 3 weeks, including weekends, or 14 weekdays
40.5 +
40 = 80.5
(÷ 3 = 26.8)
There is no invoice for the period between 21 December and 6 January
17 days over 2 weeks
0
473377
7/1 (Mon) – 11/1(Fri)
5 days over 1 week
28
473378
14/1 (Mon) –
17/1 (Thurs)
4 days over 1 week
25
473379
21/1 (Mon) –
25/1 (Fri)
5 days over 1 week
20
473380
and
473381
29/1 (Tues) –
4/2 (Mon);
5/2 (Tues) –
15/2 (Fri)
18 days including the weekends, or 14 weekdays over 3 weeks
25 + 40 = 65
(÷ 3 = 21.7)
There are no invoices for the period 16/2 – 7/3
2 weeks
0
473382
and
473383
8/3 (Fri) –
19/3 (Tues);
20/3 (Wed) – 29/3 (Fri)
22 days including weekends, or 16 weekdays over 4 weeks
40 + 40 = 80 ÷ 4 = 20
38 weeks
($18,005 was earned during this entire period)
[77]The plaintiff testified that he worked some Saturdays but gave no evidence about working on Sundays – T36
109 For the 38 weeks covered by the above table, the plaintiff did not work for approximately six weeks. He worked for approximately 32 weeks. Counting only the weeks that the plaintiff worked, he averaged 18.8 hours per week. Counting the total number of all weeks (38) covered by the table, the plaintiff worked an average of 15.8 hours per week.
110 Applying the above calculations in both scenarios, the plaintiff’s “after injury” earnings are assessed at either $15,072 (or $289.86 per week) for the first scenario or $12,648 (or $243.23 per week) for the second scenario:
111 In the first scenario, I did not count the weeks that the plaintiff did not work. I calculated an average of 18.8 hours’ work per week:
18.8 hours x 48 weeks = 902.20 hours
902.20 hours x $30 per hour = $27,072
$27,072 ÷ 52 = $520.61 per week before deduction of business expenses.
112 The defendant has conceded a fair allowance for expenses to be $12,000 per annum. Applying that deduction, the figures in the first scenario must be adjusted:
$27,072 less $12,000 = $15,072 (or $289.86 per week).
113 In the second scenario, I counted the weeks that the plaintiff did not work. I calculated an average of 15.8 hours’ work per week. Because the plaintiff did not work in this period for six weeks, I have not deducted anything further for leave:
15.8 hour x 52 weeks = 821.6 hours
821.6 hours x $30 per hour = $24,648
$24,648 ÷ 52 = $474 per week before deduction of business expenses.
114 Allowing $12,000 for expenses, the figures in the second scenario must be adjusted:
$24,648 less $12,000 = $12,648 (or $243.23 per week).
Should a further adjustment be made to account for the periods that less work is available?
115 It will be recalled that the plaintiff testified that there were occasions that he did not work. Sometimes this was because the work was not available in the colder months, and sometimes because he was in too much pain to cope with work.
116 I am satisfied that there was an element of stoicism in the plaintiff’s attitude. He did not give up on the idea of work. He pushed himself to get on with doing the best he could to earn an income.
117 I agree with the plaintiff’s counsel that the plaintiff is currently working in a job that represents “protected employment” for the reasons stated earlier. The fact that less work is available in that protected employment does not mean that the plaintiff has the capacity to work in those periods when that form of employment is not offered to him. In this regard, the defendant offered no evidence to support a contention that there are other jobs within a reasonable distance of the plaintiff’s home that the plaintiff has the physical capacity to perform. In fact, the defendant offered no evidence whatsoever that there is any other form of work that the plaintiff has the capacity to perform wherever that work may be. I note that the defendant did not rely upon any vocational assessments.[78]
[78]A vocational assessment appeared in the defendant’s court book, but it was not relied upon. It was not tendered in evidence.
118 It must also be remembered that the plaintiff lives in a small community where there are few job opportunities within a reasonable distance of his home. When questioned by his counsel, the plaintiff described the amenity of his area:
Q: “Just in relation to Merton, just so we can clarify this, where is it in relation to Melbourne in kilometres, say to the city, how many kilometres to the city?---
A:Oh, probably 180 or so. 200, I’m not sure off hand but about 180Ks from here I’d say.
… .”
MR INGRAM:
Q:“And the nearest largish towns are Alexandra and Mansfield?---
A:Mansfield, yes.
Q:How many kilometres away is Alexandra?---
A:About 35, I think, I’m about in the middle of Mansfield and Alexandra. It’s about 32, 35 either way.
Q:… I think that you don’t have a school or a pub, just a general store?---
A:No, there’s a service station which is a general store.”[79]
[79]T18
119 The subject was further explored in cross-examination:
Q: “The painting that you do now with RS Painting Services, how far away from Merton does it take you?---
A:Usually around Alex.
Q:Usually but what’s the farthest you’ve done work?---
A:40 minutes.
Q:So, you’ve not been into the Eildon boat harbour area or Bonnie Doon or any of those places to do painting?---
A:No.
Q:Does Ross Sewell live in Merton or in that area?---
A:No, he lives nearer, closer to Alex.
Q:Closer to - where, what town does he live in or what ‑ ‑ ‑?---
A:Around Taggerty.
… .”
MR MIDDLETON:
Q:“Have you ever done work at Taggerty, down that way?---
A:Maybe. Ah ‑ ‑ ‑
Q:When you working for Kalari, you used to travel about 50 minutes every day to work and from work?---
A:Yes.
Q:And that didn’t bother you even after your injury?---
A:Yes. It did bother me.
Q:Didn’t prevent you working?---
A:It bothers me coming to Melbourne because I – the thing is I’ve got to drive with – I drive a lot with my – my left hand now.
Q:But what I’m saying is, when you went back to work and were working full hours with Kalari, from about some time in 2016, the trip ‑ ‑ ‑?---
A:Yes, it bothered me.
Q:- - - about 50 minutes a day ‑ ‑ ‑?---
A:Yes, it bothered me.
Q:- - - it didn’t prevent you from doing the work, did it?---
A:It gave me pain both ways, like I said, I used – been using me left arm, been driving with me left arm.”[80]
[80]T46-47
120 I also asked the plaintiff about Merton:
HER HONOUR:
Q:“Just so far as Merton is concerned, you said the two closest towns are Mansfield and Alexandra?---
A:Yeah.
Q:So, what are the industries, if any, within 30 or 40 kilometres of where you live, is it mainly farms or ‑ ‑ ‑?---
A:Mansfield’s um tourist probably with the snow, Mount Buller and the lake. Alexandra is – no main industry there anymore. It was logging, they’ve got their um truss joint which makes housing frames where the original mill was but otherwise Alexandra has got no main industry.
Q:Is there work around your area for a handyman or a gardener?---
A:Um, there might be. I don’t ‑ ‑ ‑
Q:Presumably a handyman’s got to lift more than 7.5 kilos and ‑ ‑ ‑?---
A:Gardener as well.
Q:What about truck driving, those sorts of things?---
A:I drive down to here and my arm’s sore - and like I said before, I’ve been using my left hand to drive ever since this happened and I’m right-handed.
Q:You drive an automatic?---
A:No, no.
Q:Where is ‑ ‑ ‑?---
A:Like you know, change gears and then it’s sort of back like this.
Q:Where is the closest supermarket?---
A:Alexandra or Mansfield.”[81]
[81]T67-68
121 I am satisfied that the plaintiff is working to maximum capacity in the only job available to him.
Comparison of the “without injury” earning capacity with the “after injury” earning capacity
Has the Plaintiff established a loss of earning capacity of 40 per cent or more?
122 I have accepted the plaintiff’s counsel’s submission that the figure that most fairly represents the plaintiff’s without injury earning capacity is not less than $856.91 per week, 60 per cent of which is $514.15 per week.
123 Taking the scenario most favourable to the defendant in the scenarios referred to above, I find that figure that most fairly represents the plaintiff’s “after injury” earning capacity to be $289.86 per week.
124 Accordingly, the plaintiff has established that as a result of the injury, he has suffered a 40 per cent or more loss of earning capacity as measured in accordance with the legislation to which I have referred.
Is the 40 per cent loss of income permanent?
125 There is common ground in the medical evidence. The plaintiff’s condition has stabilised. There is no suggestion of the prospect of considerable improvement such that the plaintiff will be able to engage in unrestricted employment in the future.
126 I am satisfied on the whole of the evidence that the plaintiff will continue permanently to have a loss of earning capacity that will be productive of a financial loss of 40 per cent or more.
Is the loss of earning capacity fairly described as being “more than significant or marked”, and as being “at least very considerable”?
127 The defendant did not suggest that if I were to find that the plaintiff has suffered a 40 per cent or more loss of earning capacity I should not also be satisfied that the loss satisfied the narrative test.
128 I am satisfied on the whole of the evidence that the plaintiff’s loss of earning capacity arising from the injury is fairly described as being “more than significant or marked”, and as being “at least very considerable”. He has lost the capacity to work in an unrestricted fashion in his pre-injury occupation as a houseboat repairer. He has also lost the capacity to work in an unrestricted fashion as a house painter.
Conclusion and Orders
129 For the reasons explained in this judgment, I am satisfied that the plaintiff has established that he has a serious injury by reference to his loss of earning capacity.
130 The plaintiff is granted leave under s335 of the Act to bring common law proceedings to recover pecuniary loss damages and pain and suffering damages[82] for injuries he sustained in the course of his employment with Kalari Constructions Pty Ltd.
[82]The defendant had not issued the certificate in respect of pain and suffering at the date of judgment. Accordingly, by consent the plaintiff is granted leave to bring common law proceedings to recover pain and suffering damages in addition to pecuniary loss damages.
131 I shall hear the parties on the form of the orders and on the question of costs.
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