Sudke v Victorian WorkCover Authority
[2021] VCC 1415
•12 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-03597
| GANESH SUDKE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne (via Zoom) | |
DATE OF HEARING: | 14 and 15 September 2021 | |
DATE OF JUDGMENT: | 12 October 2021 | |
CASE MAY BE CITED AS: | Sudke v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1415 | |
REASONS FOR JUDGMENT
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Subject:SERIOUS INJURY
Catchwords: Injury to the spine – pain and suffering conceded – pecuniary loss
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545
Judgment: Leave granted to commence a common law proceeding for pain and suffering and loss of earning capacity damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R H Stanley with Mr R Paoletti | Zaparas Lawyers |
| For the Defendant | Mr T Storey | IDP Lawyers |
HIS HONOUR:
Introduction
1This is a serious injury application in respect to a workplace injury. A brief snapshot of what is to follow is that this proceeding involves an assessment of the work capacity of an injured worker who “after injury” has retrained and has a residual capacity for “suitable employment”.
2The plaintiff, Mr Ganesh Sudke, suffered injury to his lumbar spine on 21 December 2017, when performing manual work as a spray painter for AFC Feature Coating Pty Ltd (“the incident”).
3For the purposes of this proceeding, the defendant accepts that because of the incident –
(a) the plaintiff suffered injury to his lumbar spine;
(b) the lumbar spine injury has caused pain and suffering consequences which are “serious”; and
(c) the plaintiff cannot return to his pre-injury employment.
4It is agreed that in his work as a spray painter the plaintiff had a “without injury” capacity to earn $67,184 gross per annum. 60 per cent of that figure is $40,310.40 per annum (or $775.20 gross per week). Therefore, if the plaintiff’s “after injury” earning capacity is $40,310.40 or more, then he fails to establish an entitlement to commence a proceeding for pecuniary loss damages.
5Next, it is accepted that the plaintiff has a residual capacity “after injury” for suitable employment but with restrictions. To put it crudely, he has a “light work” back. What is in dispute is the number of hours he is now fit to work and the types of jobs he could undertake. Broadly, if he is fit for full-time work, then he is not entitled to bring a common law proceeding for pecuniary loss damages. If, on the other hand, he is fit only for part time work – suggested by him to be no more than twenty hours per week – then, with one exception, he would be entitled to leave to bring a proceeding for pecuniary loss damages.
A brief background
6The plaintiff was born in India. He completed the equivalent of Year 11 and then completed an apprenticeship as a spray painter. He worked in India as a spray painter. He came to Australia in 2008 and found work as a spray painter. He commenced employment with AFC Feature Coating Pty Ltd in December 2017, as a full-time spray painter, primarily painting furniture. His general health is good, although he did have an episode of back pain in approximately 2016, which resulted in an orthopaedic referral to Mr Michael Khan but no specific treatment. That condition settled down and the plaintiff resumed full-time work without any ongoing back pain.
7The plaintiff is a married man. He has two daughters aged seventeen and six. He is currently unemployed.
The incident and injury
8Following the incident, the plaintiff first sought treatment for the injury in January 2018, from the general practitioner, Dr Soares. Then, from March 2018 he commenced attending Dr Qasim Hamimi as his general practitioner. He was referred again to see the orthopaedic surgeon, Mr Khan, who he attended on 21 June 2018. Mr Khan arranged an MRI scan which, according to him, demonstrated “mild discogenic type of pain in relation to the L4/5 disc area with degenerative changes”,[1] but no specific treatment was recommended.
[1]Plaintiff’s Court Book (“PCB”) 60
9The plaintiff resumed modified duties with his employer, but that arrangement came to an end in approximately December 2018. He has not worked since then. By way of retraining, he has obtained a forklift licence and a Certificate IV in Engineering Drafting from Chisholm TAFE. He has been looking for work relevant to his drafting qualification.
The plaintiff’s affidavit evidence
10The plaintiff swore two affidavits in support of this proceeding. In his first affidavit, he described injury consequences as follows:
“As a result of my work-related injury, I experience the following symptoms:
(a)Ongoing pain in my lower back. The pain is sometimes an ache and on other occasions, is a sharper pain. The pain varies depending on my level and type of activity.
(b)Numbness, pain and pins and needles in my right leg.
(c)Some pain in my left leg, although it is not as bad as the pain in my right leg.
(d)Stiffness in my back.
(e)Increased pain when I cough or when I sneeze.
As a result of my injury, I have difficulty:
(a) Bending.
(b) Lifting heavy items or lifting repetitively.
(c) Bending and lifting at the same time.
(d) Twisting.
(e) Sitting for long periods.
(f) Walking for long periods.
(g) Standing for long periods.
(h) Mowing the lawn. I find this causes increased pain, even though our lawn is not very big.
(i) Walking up and down stairs. I therefore do this slowly.
(j) Running. I therefore try to avoid this.
(k) Playing cricket. I used to enjoy playing cricket socially and did this regularly, however I have not returned to this since my injury.
(l) Sleeping. I often wake at night due to pain. As a result, I am often very tired during the day.
(m) Cooking, cleaning and shopping. I used to do a lot of these tasks, however my wife mostly does them now. I feel guilty being less able to contribute.
(n) Interacting with my children. I find it hard to be as active and involved with my children as I would like to be. I find it hard to play with my children, go for long walks with them and lift my youngest child. I find it upsetting not being able to be the father I would like to be to my children.
(o) Travelling. I travelled back to India to visit my parents, however I found the plane trip very difficult. I had to get up and pace the aisle and I was in a lot of pain when I arrived.
(p) Work. I do not feel capable of returning to the only work that I know. I find this distressing, as I used to enjoy my work. I also find it stressful not being able to work as I really want to be able to support and provide for my family.”[2]
[2]Affidavit of Plaintiff, sworn 27 March 2020, PCB 21ꟷ22
11In his second affidavit, the plaintiff broadly set out that his consequences remained the same. He described pain in his lower back, extending into the right hip and calf, with sharp pains from time to time. He described the ongoing need for Panadol Osteo and Lyrica. He set out restrictions for a range of day-to-day activity, including sitting, walking, standing in a static position, mowing the lawn, playing cricket, socialising with friends, engaging with his family and undertaking domestic tasks.[3]
[3]Plaintiff’s affidavit, sworn 31 August 2021, PCB 26ꟷ30
12Pausing here, the application proceeded in the usual manner. The plaintiff was cross-examined on the contents of his affidavits and by reference to other relevant material. The parties tendered relevant medical reports and vocational information. I have taken into account the transcript of the plaintiff’s oral evidence and the tendered evidence, but I shall only refer to it in these reasons to the extent necessary, particularly in light of the limited dispute in this proceeding.
13In respect to work capacity, the plaintiff said in his second affidavit:
“I refer to paragraph 14 of my first affidavit and say I remain unemployed. I completed my Certificate IV in Engineering Drafting at Chisholm TAFE in or about July 2021. While I was studying, I was required to attend on class on campus per week, which went from about 5:30pm to 8:30pm (though it sometimes went a bit later), and one online class per week. Though, during the COVID-19 lockdowns, both weekly classes were conducted online. I was also required to complete what I estimate to have been about nine or ten hours of coursework per week. I was able to take breaks during classes to walk around and stretch, and I could decide when I did my coursework.
Since completing my Certificate IV, I have been looking for work as a draftsperson. However, I do not know how I would cope with this work if I got a job. If I were working at a desk, I would have to concentrate and lean forward, which is more painful for my lower back than sitting in a relaxed position on the couch, and I would be under work pressure. I have not been looking for full-time work because I have difficulty sitting down for long periods of time, due to my lower back symptoms. As I mentioned above, if I have to sit in an upright position for a long time, I tend to have to get up, move around and stretch due to the symptoms in my lower back.
I have reviewed some proposed alternative job options in the Acumen Health Vocational Assessment Report dated 18 December 2019 and the Recovre Vocational Assessment Report dated 10 March 2021. In relation to those jobs, I say as follows:
a) Forklift driver - I do not feel that I could sit in a forklift. They have no suspension or shock absorption, so any jerking movement would be too painful for my lower back. I would also find it painful to sit in a forklift all day, and climb into and out of a forklift repeatedly, due to my lower back symptoms. It would also be painful and difficult for me to bend and reach repetitively for the gears. If I had to lift a gas bottle, that would be too painful for my lower back, and would also cause the symptoms that extend into my right leg to increase.
b) Product assembler, light items - As I have discussed above, I have difficulty sitting in an upright position and standing for long periods of time due to the symptoms in my lower back, and also due to the symptoms that extend into my right leg, particularly if my back is not supported. If I have to sit in an upright position for a long time, I tend to have to get up, move around and stretch due to the symptoms in my lower back. If I had to lift anything more than light items, that would be too painful for my lower back, and would cause the symptoms that extend into my right leg to increase. Even lifting light items repetitively would be painful for my lower back and would cause the symptoms that extend into my right leg to increase. As I mentioned above, repetitive bending or twisting is painful for my lower back.
c) Trade sales, paint - Lifting and carrying paint cans would be too difficult and painful for my lower back, and would also cause the symptoms that extend into my right leg to increase, because paint cans can be very heavy. Repetitive lifting and pulling is too difficult and painful. As I mentioned above, I have difficulty standing for long periods of time. If I had to drive a forklift, I repeat my comments above about that. I can speak English, but I do not feel that I have the English skills for a sales role, because you have to have the language skills to convince people to buy things. I also have no experience in a sales role.
d) Delivery driver - It would be difficult and painful for my lower back to drive a van for extended periods of time. As I mentioned above, even when I have to drive into the city just to see a doctor, I have to take a break due to my lower back symptoms. It would also be painful for my lower back to climb into and out of the van repeatedly, and it would cause the symptoms that extend into my right leg to increase It would be too difficult and painful for my lower back to load, unload, lift and carry the loads if they were anything more than light items. As I mentioned above, even lifting light items repetitively would be painful for my lower back and would cause the symptoms that extend into my right leg to increase. I struggle to bend over repetitively, and bending and lifting is particularly painful for my lower back, and it would cause the symptoms that extend into my right leg to increase.
e) Warehouse administrator - As I mentioned above, standing and walking for long periods of time tends to cause the symptoms in my lower back to increase, as well as the symptoms that extend into my right leg. I would also be required to spend a lot of time standing and walking on hard surfaces in a warehouse, like concrete floors. As I mentioned above, it would be too difficult and painful for my lower back to lift and carry items if they were anything more than light items. Again, even lifting light items repetitively would be painful for my lower back and would cause the symptoms that extend into my right leg to increase. I struggle to bend over repetitively, and bending and lifting is particularly painful for my lower back, and it would cause the symptoms that extend into my right leg to increase. Crouching and squatting can also cause the symptoms in my lower back to increase. I can use Word and Excel, but there are limits to my computer skills.
f) Customer service/ordering clerk - As I mentioned above, I can speak English, but I do not feel that I have the English skills for a customer service role and I do not feel that I have the vocabulary for it. Again, I have difficulty sitting in an upright position and standing for long periods of time due to the symptoms in my lower back, and also due to the symptoms that extend into my right leg, particularly if my back is not supported. If I have to sit in an upright position for a long time, I tend to have to get up, move around and stretch due to the symptoms in my lower back. As I mentioned above, If I were working at a desk, I would have to concentrate and lean forward, which is more painful for my lower back than sitting in a relaxed position on the couch. As I mentioned above there are limits to my computer skills.
g) Warehouse clerk - I repeat my comments above about my difficulty sitting in an upright position and working at a desk for long periods of time, and standing for long periods of time. Again, there are limits to my computer skills.
h) Packer - As I mentioned above, standing and walking for long periods of time tends to cause the symptoms in my lower back to increase, as well as the symptoms that extend into my right leg I repeat my comments above about the pain and difficulty I have lifting and carrying heavy items, and even repetitively lifting and carrying light items I also repeat my comments about the difficulty I have sitting for long periods of time in an upright position and working at a desk. It would be difficult and painful for my lower back to bend over and push tubs, and it would cause the symptoms that extend into my right leg to increase.”[4]
[4]Plaintiff’s affidavit, sworn 31 August 2021, PCB 30ꟷ33
The diagnosis of injury
14It is unnecessary to look at the medical evidence regarding the diagnosis of injury to the lumber spine in any detail because, broadly, there is a degree of consistency of diagnosis in the medical material. Briefly, Dr Hamimi, described the plaintiff having discogenic pain.[5] The plaintiff’s treating neurosurgeon, Professor Richard Bittar, described an L4-5 prolapse and aggravation of spondylosis.[6] The treating pain specialist, Dr Richard Sullivan, agreed with Professor Bittar that the injury was an L4-5 bulge and aggravation of spondylosis.[7] The treating physiotherapist, Ms Gaya Mahanama, agreed with Professor Bittar that the L4-5 disc was injured.[8] The medico-legal specialist, Dr Hazem Akil, neurosurgeon, diagnosed aggravation of lumbar spondylosis and an L4-5 disc bulge.[9] Medico-legal specialist occupational physician, Dr James Rowe, described disc derangement at L5-S1, and possibly at L4-5. Dr Clayton Thomas, pain specialist, in a report prepared at the request of the defendant, diagnosed “nonspecific lower backache”,[10] but otherwise accepted that the plaintiff had symptoms referable to his employment. Finally, Dr Joseph Slesenger, occupational physician, in a medico-legal report obtained by the defendant, diagnosed “mechanical injury to the lumbar spine and aggravation of degenerative disc disease”.[11]
[5]PCB 51
[6]PCB 64
[7]PCB 69
[8]PCB 81
[9]PCB 97
[10]Defendant’s Court Book (“DCB”) 50
[11] DCB 69
15The short point is that all the doctors accept that the plaintiff injured the lower lumbar spine in the course of his employment and that the injury persists.
16There is a difference in the language used by some doctors to describe the injury. Not much turns on that, but I prefer the diagnosis of the lumber spine injury to be as expressed by the treating neurosurgeon, Professor Bittar, to be an L4-5 disc prolapse with aggravation of spondylosis. This diagnosis is accepted by the majority of the treating and medico-legal examiners. Professor Bittar has also been involved in arranging and reviewing appropriate radiology. In that regard, he is at an advantage over some medico-legal examiners, such as Dr Thomas, who have not had the benefit of the more recent radiology.
Loss of earnings consequences – the statutory provisions
17It is accepted that the plaintiff has an “after injury” capacity for suitable employment. It is also accepted that he cannot return to the heavy pre-injury employment that he did as a spray painter. The inability to return to pre-injury employment is, in my view, a “very considerable” loss of earning capacity consequence for the purpose of s325(2)(c)(ii) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). Therefore, the plaintiff satisfies that part of the statutory provisions.
18The remaining and only issue in dispute is whether the plaintiff suffers the requisite 40 per cent loss of earning capacity as per the statutory formula contained in ss325(2)(e), (f) and (g) of the Act.
19To satisfy the statutory formula, the measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the worker is earning or is capable of earning in suitable employment at the date of the hearing (“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 3 years before and 3 years after the injury as most fairly reflected his earning capacity had the injury not occurred” (“without injury earnings”).[12]
[12]Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545, 573 [89]
20Before proceeding further, it is worth remembering the pain and suffering consequences the plaintiff suffers and how they equate into loss of earnings consequences. He sets out in his affidavits his restrictions for a range of daily activity, such as sitting, standing and walking, and equally those restrictions translate into restrictions for employment.
The plaintiff’s oral evidence – re-training
21The plaintiff was cross-examined about his residual capacity for work and, in particular, the TAFE course that he has completed, which has given him very specific skills and qualifications to be a draftsperson.[13] He described what was involved in the course as understanding technical instructions and software programs.[14] The object of the course was to train to be able to do different types of drawings for objects such as gears and the like.[15] An example of what he is now capable of drawing is the design of a cog or a bolt to be used in a piece of mining equipment, such as a CNC machine.[16]
[13]Transcript (“T”) 42, Lines (“L”) 14ꟷ28
[14]T45
[15]T46
[16]T50
22The plaintiff described applying for jobs with his drafting qualification, including with a company called Star Aluminium, who build big ladders or industrial platforms. He had an interview with Star Aluminium, but did not get the job, at least in part because they use different software to the software he had been trained on as part of his course.[17] In respect to that job application he was questioned as follows:
[17]T58
Q:“You gave evidence before to His Honour that you applied for the Star Aluminium job and you were interviewed for it. What I suggest is that clearly you believed that that was the sort of work that you could do. Do you agree with that?‑‑‑
A:Yes.
Q:And first you would start perhaps at just a few hours per week, but you would build up more days if you were going well. Do you agree with that?‑‑‑
A:Yeah.
Q:And your physio and your treating GP would monitor your progress with you, and again as I suggest, if all was going well you would slowly build up. Do you agree with that so far?—
A:Yes.
…
Q:Yes. If you started a job as a draftsperson and you were slowly increasing your hours, you would want to return to full time hours, you agree with that?---
A:Look, I can't say at the moment, this is like future and talking about the future and I don't know what will happen in the future.
Q: Sure?---
A:So, I can't predict that one what will happen with me in the future, I will be much better or much worse. So, it's really hard to answer this question.
Q: I guess you won't know until you try, is that fair to say?---
A: Yes.”[18]
[18]T60, L16ꟷT61, L17
23The plaintiff was next taken to various jobs as set out in vocational reports. He was cross-examined as to his capacity for those jobs. He did not suggest that the intellectual aspects were beyond him. He accepted that if he was offered a part-time job as a draftsperson, then he would accept it.[19] Broadly, it was put to him that he could work full time in a lighter job. He was taken, as an example, to a job suggested as warehouse administrator and the physical requirements of it. He said if it involved a long time walking, then he would “probably not” be able to do that job.[20] The thrust of his evidence can be summarised by reference to the following exchange in cross-examination:
Q:“You just gave evidence to His Honour earlier that if you got the job with Star Aluminium then you could have started on that day at least on a part-time basis. Doesn’t the same apply here? ‑‑‑
A: Yeah, but Star Aluminium – they didn’t offer me, so I didn’t ask them for any excuses. So ---
Q:Mr Sudke, could I ask you, is it your instinct to say that maybe you might not be able to do these jobs, or to cast negativity on these jobs because you think that may help your case?‑‑‑
A:No, sorry, I missed this one, sorry.
Q:Are you saying - are you hesitating to say yes, I believe I could do that, because you think that it could help your case?‑‑‑
A:Not it's about the case, but I'm worried about I can do because if I commit them, okay, I can do it and after that I start and if I can't do it, then it's really hard for them and hard for me as well. So if they say okay, we're looking for people like this one, then I told them this is the problem, I can't do full-time. If you offer me part-time I can do two, three hours or four hours a day, something like that, then I am happy to join you guys.”[21]
[19]T65, L16-17
[20]T70, L11
[21]T73, L7ꟷ26
24Returning to the Star Aluminium job, it was suggested that he would have accepted that job if it had been offered to him on a full-time basis. He disagreed and said that he would have explained his story, “my capacity, and if they accept then I will say, okay, we will go ahead”.[22]
[22]T76, L26ꟷ27
25In re-examination, the plaintiff was asked about jobs that involved sitting down and how he had fared sitting to give his evidence. He said:
A:“Today at the moment I'm in very painful at the moment I just lay down when we have a break, but it's very hard to get up but I have to continue with this meeting though I just sit again, yeah, it's a painful - - -
Q:When you say it's hard, what's happening to you, what's the problem?---
A:Ah, the pain irritate me and my concentration and sometime I get angry as well, but - - -
…
Q:And what do you say about your ability to do a job, that involves sitting, in the same manner that you've sat through today, that is, there have been breaks, but the predominant requirement is for you to sit; how do you think you'd go in a job?---
A:Because back pain can't (indistinct) me properly so it's very hard to get every day same time and sit upright in front of the computer and if – even if I have a break, but it's a – I have to continuously focus and it's very hard to concentrate on my work, so I have to start somewhere.”[23]
[23]T77, L14ꟷT78, L4
26Next in re-examination, the plaintiff gave evidence about the Star Aluminium job:
Q:“You were asked if Star Aluminium had offered you a job what would you have done and your response was along the lines of ‘I would have asked whether I could do it part-time,’ why? Why not full-time?---
A:Due to my capacity I don't want a commitment or a I don't want a false commitment to someone else, if I can't do it and I had to leave the job because my health is more important so if they accept me as a part-time then I will accept the job, otherwise, no.
Q:It was suggested to you that you were giving your evidence in a negative, a hesitant, way, with respect to your abilities to do the jobs posed. That is, that you were giving your evidence, not truly reflecting your capacity, but rather to help your case. Do you remember being asked that?---
A:M'mm, yeah.”[24]
[24]T83, L31ꟷT84, L13
The medical evidence regarding work capacity
The evidence from treating health practitioners
Dr Qasim Hamimi
27Dr Hamimi has provided a number of reports regarding the plaintiff. In his most recent report of 5 September 2021, he details the treatment to that point in time, and clinical and radiological investigations. Under the headings of “Opinion” and “Prognosis”, he said:
“The patient described an incident in which he developed chronic lower back pain .
the pain has persisted since that time .
surgical treatment is recommended by Neurosurgeon at present but work cover is not approved yet.
Ganesh condition is directly related to his work. There were no pre-existing injuries or conditions to explain his symptom.
He is currently fit for suitable employment
Prognosis:
The prognosis is positive
depend on surgical procedure he has been waiting for surgery.”[25] (sic)
[25]PCB 57
28Dr Hamimi was also asked,[26] “what restrictions” the plaintiff had by reason of his lower back injury alone. The doctor answered, “he has been fit for light duties no lifting more than 5-7 kg no repetitive bending not long standing”.[27]
[26]Referring letter from Zaparas Lawyers dated 2 August 2021
[27]PCB 58
29Dr Hamimi was asked whether the identified restrictions were likely to persist into the foreseeable future. His answer was “[d]epend on operation”.[28]
[28]PCB 58
30Next, Dr Hamimi was asked whether the plaintiff had the capacity to perform employment options, including as a draftsperson, storeperson/warehouse administrator and he said “yes I agree”.[29]
[29]PCB 58
Ms Gaya Mahanama
31Ms Gaya Mahanama is the plaintiff’s treating physiotherapist. She has provided two reports, the most recent of which is dated 12 September 2021.[30] It is a detailed report setting out issues to do with diagnosis and the treatment she had provided. But relevantly in respect to work capacity, she said:
[30]PCB 123
“3. Details of what restrictions our client has by reason of his lower back injury alone.
As mentioned above, it is not recommended that Mr Sudke return to his pre-injury duties if he does not resolve the L4-5 disc pathology which can cause neural contact or compression. Having observed the strength rehabilitation of Mr Sudke from November 2018, it is clear to me that although he may gain strength, function and some range of motion, Mr Sudke’s pain levels remain moderate to high (6-7/10) in his right leg even to this present date - over 2.5 years later. This is a strong indication for the need for further surgical intervention as recommended by Professor Bittar. Given the clear clinical and radiological evidence as described in Question 1, I am somewhat perplexed why the insurer has not yet approved this procedure.
In order to overcome these physical barriers to gainful employment since his injury, Mr Sudke has successfully applied for and completed his Forklift license in May 2019, and has commenced his Certificate 4 in Engineering Drafting. This will allow him to re-engage in a wider range of suitable duties with the help of Acumen Health Group.
During our most recent consultation on 10th September 2021, I performed strength tests with Mr Sudke using standardized and validated JTECH machinery for static evaluation. This information was processed using recommendations outlined in the Work Practice Guides for Manual Lifting © 1981, USA. Mr Sudke performed maximal capacity in common occupational positions like lifting from knee level (Leg NIOSH), lifting from floor level (Floor NIOSH), and pulling at waist height in a standing position. The results of these tests showed his maximal capacity in kilograms of force - which led to maximal lower back pain and leg pain symptoms reported during the test and thereafter …
…
Henceforth, the current restrictions and recommendations for Mr Sudke’s work capacity include, but are not limited to the following:
● Sitting for no longer than 30-minutes before getting up and walking.
● Working for no more than 4-hours before taking at least a 10-minute or longer lunch break for therapeutic exercise or rest.
● Strictly avoid frequent/repeated lifting of weights exceeding 5kg; occasional lifting of weights exceeding 10kg; and any lifting of weight exceeding 20kg, as tested and clinically recommended by 1m dimensions (i.e. width, height and/or depth).
● Avoid reaching above the head or below knee height for any weight or objects.
● Avoid sustained or repetitive movement of the back where possible e.g. arching upwards, deep bending, leaning forward, tilting to the side or turning.
● If possible, allow Mr Sudke to gradually increase his hours and duties over a 3-month period from 4 hours per day on 3 non-consecutive days per week, then adding 4-hours every fortnight as tolerated up to a maximum of 8-hours per day, 5 days per week.
4. Whether, in your opinion, the identified restrictions are likely to persist into the foreseeable future.
The restrictions discussed in the previous question are likely to continue if Mr Sudke. This is because the anatomical damage he sustained during the initial workplace injury cannot be changed by exercise and time alone. There is a likelihood however, that he may gradually increase his standing and walking endurance over time if he persists with his exercise therapy and Physiotherapy. Unfortunately this is unlikely to modify his lifting capacity or lower back pain, the latter of which has been shown to remain at 6-7/10 VAS throughout the time he has engaged in Physiotherapy, despite modest improvements in strength and range of motion.
5. Taking into account the lower back injury on its own, are you of the view that our client does not have capacity for pre-injury duties and if so, whether this incapacity is likely to persist for the foreseeable future.
As discussed in the previous question, Mr Sudke is unlikely to be able to return to his pre-injury duties, due to his condition and restrictions detailed above. However, as he has continued retraining courses in order to find suitable work, it is possible that he will be able to return to full-time work within his prescribed physical restrictions.
Having observed the strength rehabilitation of Mr Sudke since November 2018, it is clear to me that although he may gain strength, function and some range of motion, Mr Sudke’s pain levels remain moderate to high (6-7/10) in his right leg even to this present date - over 2.5 years later. This is a strong indication for the need for further surgical intervention as recommended by Professor Bittar. Given the clear clinical and radiological evidence as described in Question 1, I am somewhat perplexed why the insurer has not yet approved this procedure.
Therefore, Mr Sudke’s right leg pain and physical restrictions are likely to continue indefinitely, unless he is approved for the surgery his Neurosurgeon Prof Bittar has recommended. If the L4-5 level is decompressed, recovery may be expected for some or all of Mr Sudke’s leg pain. However, since the procedure has been postponed for over 2-years, the effect of decompression may be less noted for pain driven by Mr Sudke’s S1 neuropathy (see diagnosis in Question 1). However, there is a likelihood that Mr Sudke could progress his role to a more physically demanding job description than his current restrictions allow (see Question 3).
Mr Sudke has attempted to continue 2-3 x weekly sessions of self-managed leg strength and hydrotherapy exercises at Casey Leisure Centre. However, since March 2019, repeated COVID-19 gym closures have prevented this rehabilitation strategy. He attends Physiotherapy only occasionally to monitor the effects of his strength exercises through pain questionnaires, isometric strength tests and advice on exercise modification/progression. During recent gym closures, Mr Sudke has also travelled to Superspine to access exercise therapy for essential pain relief and to prevent deterioration of his condition, using the specialised core and leg strengthening machinery available during these visits.
The plan for this semi-independent program was aimed for complete independence by early 2021, which has now been postponed to mid 2022 due to multiple gym lockdowns per COVID-19 restrictions. We have also requested home equipment to facilitate a transition to fully self-managed exercise. As such, there have currently been positive changes in Mr Sudke’s strength, which shows that he is still in rehabilitation. Some of his physical limitations may diminish over the next 12-months, but his leg pain is likely to remain largely unchanged at moderate to high levels without surgical or other specialist-referred interventions.
6. Whether as a consequence of our client’s lower back injury on its own, and excluding any other physical conditions and/or any psychiatric condition, he has the capacity to perform the employment options listed in the Vocational Assessment Report dated 18 December 2019, on a permanent, reliable, consistent and sustained basis noting his age, education, skills, work experience, and any restrictions identified in point (3) and your opinion in point (4) above:
• Forklift Driver: Yes, however less likely to be tolerated by Mr Sudke’s condition in the long-term. He must be able to take up to 10-minute breaks whenever required for pain, in addition to restrictions detailed in Question 3.
• Product Assembler – Light Items: Yes, however, single items cannot exceed 5kg weight, and Mr Sudke must be able to change postures from sitting to standing at least every 10-minutes, in addition to restrictions detailed in Question 3.
• Trade Sales - Paint: Yes, and likely to be favourable for his condition if the restrictions detailed in Question 3 are followed.
• Delivery Driver: Yes, however single items cannot exceed 5kg weight, and Mr Sudke must be able to take up to 10-minute breaks whenever required for pain, in addition to restrictions detailed in Question 3.
• Store Person/Warehouse Administrator: Yes, and likely to be favourable for his condition if the restrictions detailed in Question 3 are followed.
• Draftsperson: Yes, and likely to be favourable for his condition if the restrictions detailed in Question 3 are followed.
i) If you are of the view that our client has a capacity for suitable employment, what is the maximum number of hours per week our client is able to work (if at all) in such suitable employment on a permanent, reliable, consistent and sustained basis without the risk of his lower back injury being aggravated and/or re-injured – also noting the factors listed in point (6) above;
For all the above mentioned prospective employment positions, Mr Sudke is advised (as detailed in Question 3) to gradually increase his hours and duties over a 3-month period from 4 hours per day on 3 non-consecutive days per week, then adding 4-hours every fortnight as tolerated up to a maximum of 8-hours per day, 5 days per week.”[31] (sic)
[31]PCB 132ꟷ137
Professor Richard Bittar
32Professor Bittar has provided two reports regarding the plaintiff. In his most recent report of 7 September 2020,[32] in respect to work capacity, he said:
“In my opinion, his work capacity is fairly limited, as detailed by Dr Kilner Brasier. In my opinion, he cannot undertake his full pre-injury duties. He is able to work three to four hours per day, three to four days per week in a very light physical role.”[33]
[32]PCB 64
[33]PCB 66
33Professor Bittar went on to say that he was of the opinion that the plaintiff did not have the capacity for pre-injury duties.[34] He was then asked about various jobs as identified in a vocational assessment report dated 18 December 2019, which he answered as follows:
[34]PCB 67
“Whether as a consequence of our client's lower back injury, and taking into account his age, education, skills (including English language) and work experience, he has the capacity to perform suitable employment as listed in the Vocational Assessment Report dated 18 December 2019:
• Forklift Driver
• Product Assembler
• Trade Sales -Paint
• Delivery Driver
• Store Person/Warehouse Administrator
• Draftsperson
i) If you are of the view that our client has a capacity for suitable employment, how many hours per week is our client able to work (if at all) in such suitable employment on a permanent, reliable and consistent basis without the risk of his lower back injury being aggravated and/or re-injured also noting the factors listed in point (7) above;
As a consequence of your client's lower back injury, and taking into account his age, education, skills (including English language) and work experience, your client could most likely work as a product assembler, trade sale (paint), delivery driver, warehouse administrator and draftsperson three to four hours per day, three to four days per week as long as the abovementioned restrictions were adhered to and he had the ability to change postures frequently. In my opinion, he could not work as a forklift driver. In my opinion, the maximum number of hours that he could work in any suitable role permanently, reliably and consistently would be three to four hours per day, three to four days per week.”[35]
[35]PCB 67ꟷ68
Dr Richard Sullivan
34Dr Sullivan is a pain specialist who has provided two reports regarding his treatment and opinions in respect to the plaintiff. The most recent report is dated 4 September 2021.[36] In that report, relevant to the issue of work capacity, he was asked:
[36]PCB 71.1
“3. Details of what restrictions our client has by reason of his lower back injury alone.
Restrictions caused by the back pain are noted above, and include his limitations pertaining to standing, walking, driving and lifting and bending.
4. Whether, in your opinion, the identified restrictions are likely to persist through the foreseeable future;
The restrictions noted in the body of this report will continue into the foreseeable future.
5. Taking into account the lower back injury on its own, whether you are of the view that our client does not have capacity for pre-injury duties and this incapacity is likely to persist for the foreseeable future, noting that our client instructs that he will not be undergoing the recommended surgery as he is too fearful of the risks associated with the surgery;
Your client cannot return to his preinjury employment as a consequence of his injuries now or into the foreseeable future.
In the context that your client does not undergo the recommended surgical treatment, I would consider his clinical situation now to be stable and permanent in so far as he is not likely to see any further improvement now or into the foreseeable future.
6. Whether as a consequence of our client’s lower back injury on its own, and excluding any other physical conditions and/or any psychiatric condition, he has the capacity to perform the employment options listed in the Vocational Assessment Report dated 18 December 2019, on a permanent, reliable, consistent and sustained basis, his age, education, skills, work experience and any restrictions identified in point (3) and your opinion in point (4) above:
• Forklift Driver
• Product Assembler – Light Items
• Trade Sales - Paint
• Delivery Driver
• Store Person/Warehouse Administrator
• Draftspersoni) If you are of the view that our client has a capacity for suitable employment, what is the maximum number of hours per week our client is able to work (if at all) in such suitable employment on a permanent, reliable, consistent and sustained basis without the risk of his lower back injury being aggravated and/or re-injured – also noting the factors listed in point (6) above, through the foreseeable future, further noting the point above regarding our client’s decision not to have surgery on account of his fear of the risks associated with the surgery?
As a consequence of your client’s back injury in isolation and excluding other physical conditions or psychiatric conditions, he is permanently precluded from undertaking the following job roles,
i. Forklift driver.
ii. Product assembler.
iii. Trade sales.
iv. Delivery driver.
v. Store person.
With regard to draughtsperson, my opinion is that he can only undertake such work if it was entirely sedentary in nature of a part-time basis perhaps a maximum of 12 hours per week 4 to 6 hours per day on nonconsecutive days and as long as he was given the opportunity to take frequent and regular breaks. However, he could expect that unpredictable pain flare as well as side effect of the medication may adversely affect his work performance and capacity to undertake such work in a stable and settled fashion.
The limitations described above can be considered permanent.”[37]
[37]PCB 71.3ꟷ71.4
Dr Kilner Brasier
35Dr Brasier is an occupational and environmental medicine specialist who has treated the plaintiff. In a report dated 20 May 2020[38] and relevant to the issue of work capacity, she said:
“I agree with yourself and with Professor Bittar's opinion regarding his limited work capacity in spite of him being well motivated. In my opinion, he would have work capacity for spray-painting, but limited hours and casual work would seem to be the best option short-term for him. I think unfortunately he is going to struggle to find casual employment as a spray-painter given his back condition.
He reports having sought casual spray-painting work unsuccessfully and I have advised him that were he to be able to successfully obtain work on a casual basis I would be happy to review a ‘documented’ return to work plan and job description to ensure that he has appropriate work capacity.
I feel he would struggle with forklift driving as there is usually a considerable amount of bending and twisting involved.
[38]PCB 72
We discussed his other employment options again for the future with regard to engineering/drafting course, which he is keen to undertake. He tells me this would commence full-time one day per week in the near future.”[39]
Medico-legal opinion
[39]PCB 73
Dr Hazim Akil
36Dr Akil is a neurosurgeon, who examined the plaintiff for medico-legal purposes and provided a report dated 31 May 2021.[40] Relevant to work capacity, Dr Akil said:
“Mr Sudke cannot stand or walk for longer than one hour without experiencing significant exacerbation of pain.
I have read the vocational assessment report dated 18 December 2019. Although in theory, he can do a warehouse clerk or order clerk given that both of them involved sitting. However, what I am not sure about these jobs taking into consideration his place of residence, his prior experience, and his age.
I disagree with the vocations that includes dispatching and receiving clerk, packer, product assembler and forklift driver.
In theory, he can have a mechanical engineering draft person should he have the right experience for that.”[41]
[40]PCB 95
[41]PCB 97
37Dr Akil was asked specific questions regarding restrictions from the plaintiff’s spinal injury and capacity for work. He answered those questions as follows:
“3. Details of what restrictions does our client have by reason of his spinal injury? In this regard please note the following regarding our client’s injury:
i) He has ongoing pain in his lower back with numbness, pain and pins and needles in his right leg;
i) He has difficulty with bending, lifting heavy items or lifting repetitively and bending and lifting at the same time.
ii) He has difficulties with sleeping and often wakes at night due to pain;
iii) He has difficulties doing household tasks like cooking, cleaning and shopping.
In my opinion, standing or walking as well as repetitive lifting, bending, pulling and pushing should be avoided. Those restrictions will continue for the foreseeable future.
4. Whether, in your opinion, the identified restrictions in (3) above are permanent, i.e likely to persist into the foreseeable future;
In my opinion, the restrictions are permanent and will persist for the foreseeable future.
5.Taking into account the spinal injury only, whether our client has the capacity for pre-injury duties and, if not, whether this incapacity is permanent, i.e likely to persist for the foreseeable future;
In my opinion, he does not have any capacity to return to pre-injury duties given that the mechanism of injury of lifting timber panels caused the problem from the beginning.
6. Taking into account the spinal injury only, whether our client has a capacity to perform the following suitable employment as listed in the Acumen Health Vocational Assessment Report dated 18 December 2019, noting his age, education, skills, work experience, and any restrictions identified in point (3) and your opinion in point (4) above:
• Despatching & Receiving Clerk
• Order Clerk
• Stock Clerk
• Production Clerk
• Forklift Driver
• Packers (general)
• Product Assembler
• Mechanical Engineering Draftsperson
Please find the answer in the body of the report under the header Work Capacity.
7. If you are of the view that our client has a capacity for suitable employment, what is the maximum number of hours per week our is client able to work in such suitable employment on a permanent, reliable and consistent basis and without the risk of re-injury – also noting the factors listed in point (3) and (6) above;
With regard to his warehouse clerk and order clerk as well as mechanical engineering draft person and should those jobs be appropriate for his previous experience as well as his place of residence and his age, then I would propose a start weekly hours between four to eight and to increase provided he does not have any aggravation of pain.”[42] (sic)
[42]PCB 98ꟷ99
Dr James Rowe
38Dr Rowe, specialist occupational physician, examined the plaintiff and provided a report dated 13 July 2021.[43] Relevant to the issue of work capacity, Dr Rowe said:
[43]PCB 100
“3. Details of what restrictions does our client have by reason of his spinal injury? In this regard please note the following regarding our client’s injury:
i) He has ongoing pain in his lower back with numbness, pain and pins and needles in his right leg;
ii) He has difficulty with bending, lifting heavy items or lifting repetitively and bending and lifting at the same time.
iii) He has difficulties with sleeping and often wakes at night due to pain;
iv) He has difficulties doing household tasks like cooking, cleaning and shopping.
As a result of his spinal injury, he is precluded and restricted from activities involving:
•.Bending
•.Twisting
•.Heavy lifting and prolonged sitting and standing
4.Whether, in your opinion, the identified restrictions in (3) above are permanent, i.e likely to persist into the foreseeable future;
The restrictions placed upon him are permanent and longstanding.
5.Taking into account the spinal injury only, whether our client has the capacity for pre-injury duties and, if not, whether this incapacity is permanent, likely to persist for the foreseeable future;
No, taking into account the spinal injury alone, Mr Sudke does not have the capacity for pre-injury duties. This incapacity is considered permanent and likely to persist for the foreseeable future.
6. Taking into account the spinal injury only, whether our client has a capacity to perform the following suitable employment as listed in the Acumen Health Vocational Assessment Report dated 18 December 2019, noting his age, education, skills, work experience, and any restrictions identified in point (3) and your opinion in point (4) above:
•. Despatching & Receiving Clerk
•. Order Clerk
•. Stock Clerk
•. Production Clerk
These 4 positions are possible with his restrictions borne in mind. No more than 20 hours per week.
•. Forklift Driver
This may be suitable but work over rough or uneven ground would not be suitable; nor would work on a forklift that was not in good repair with suitable seating. No more than 20 hours per week and less initially, I would suggest 3 days per week, 4 hours per day.
•. Packers (general)
•. Product AssemblerNot suitable. These positions require frequent twisting, bending, lifting and carrying and very often, prolonged standing.
•.Mechanical Engineering Draftsperson
Potentially the most suitable. He is currently undertaking training. Such a position is potentially one he could pursue as a self employed person, allowing him to undertake appropriate breaks and posture changes.
7.If you are of the view that our client has a capacity for suitable employment, what is the maximum number of hours per week our is client able to work in such suitable employment on a permanent, reliable and consistent basis and without the risk of re-injury – also noting the factors listed in point (3) and (6) above;
Noting the factors listed above it is my view that Mr Sudke cannot work any more than 20 hours a week, and less initially, in suitable employment on a permanent, reliable and consistent basis.”[44] (sic)
[44]PCB 104ꟷ105
Dr Clayton Thomas
39Dr Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff at the request of the defendant. In a report dated 1 February 2020,[45] Dr Thomas was asked questions to do with diagnosis, treatment and work capacity. He described his examination of the plaintiff as appropriate and that the plaintiff was cooperative.[46] He noted the plaintiff to be tender quite focally in the lumbar spine around L5.[47] In respect to specific questions, he opined that the plaintiff had:
“… nonspecific lower backache in the presence of reasonably unimpressive imaging. It is not possible to determine what underlying problem is. It is not possible to indicate that the abnormality seen on imaging at L4-L5 is implicated in his symptom complex or not.”[48]
[45]DCB 47
[46]DCB 49
[47]DCB 50
[48]DCB 50
40Pausing here, I have already mentioned that Dr Thomas did not have the benefit of the more recent imaging and has not commented upon it, as Professor Bittar and others have.
41In any event, in respect to work capacity, Dr Thomas said the plaintiff had a capacity for suitable employment. He said:
“Q6. The worker could return to modified alternate duties as a spray painter, primarily a job that did not involve lifting heavy objects through various ranges nor repetitive bending below waist height or above chest height.
Q7. The worker does not meet the definition of no current work capacity.
Q8. He has current work capacity. Review of this is unlikely to be required. The prognosis here is positive.
Q9. You have not enclosed a vocational assessment report.”[49]
[49]DCB 50
42Dr Thomas then provided a further report dated 19 March 2020,[50] in which he was asked to comment upon a vocational assessment report dated 18 September 2019 and jobs identified therein. Dr Thomas said:
“Thank you for your request for a supplementary report. This is further to my report to you dated 1 February 2020.
You have enclosed a vocational assessment report. This is dated 18 December 2019. In that report his general practitioner, Dr Hamimi, indicated options included customer service, product assembler (light items), warehouse administrator, trades sales, stock take.
Indicated restrictions were avoid prolonged standing for more than one hour. No repetitive bending of the back. No lifting more than 5 kg. Need to alternate between sitting and standing. To initially commence return to work three to four hours a day, three to four days per week.
The vocational assessment report identified a number of options including forklift driver, product assembler, trade sales/paint, delivery driver, storeperson warehouse administrator, draftsperson.
The options that l feel are reasonable would include product assembler light items. This could be performed within the restrictions outlined by his general practitioner in addition to my assessment for him.
l do not think he could work as trade sales paint as this would by necessity involve lifting heavy paint containers.
l think he could do a delivery driver light objects.
l do not think he could work as a storeperson but I do think he could work as a warehouse administrator. l think he could work as a draftsperson. I do not think he could work as a forklift driver as this can involve a lifting component, in addition a lot of forks do not have good suspension and if the terrain is uneven this could jar the back.”[51] (sic)
[50]DCB 53
[51]DCB 53ꟷ54
Dr Joseph Slesenger
43Dr Slesenger, specialist occupational physician, examined the plaintiff at the request of the defendant. In a report dated 31 March 2021,[52] Dr Slesenger answered questions regarding the plaintiff’s residual work capacity:
[52]DCB 58
“6.Have the worker’s injuries affected his capacity to work (and if so, how)? Specifically:g
a) Do you consider the worker has a current work capacity for pre-injury employment (whether with or without restrictions/modifications)?
I am of the opinion that Mr Sudke cannot return to his pre-injury role as the job demands lie outside his capacity limits.
b) Does the worker have a capacity for suitable employment (and, if so, what type of work and with what restrictions)?
I am of the opinion that Mr Sudke retains capacity for work with restrictions, namely:
● No push, pull, carry or lift over 5 kg.
● No repetitive bending or twisting.
● No prolonged static postures.
● No exposure to whole body vibration.
c) Can the worker perform the jobs listed in the 2 vocational assessments enclosed?
With regard to the vocational assessment report, I note recommendations for Mr Sudke to return to work in the following roles:
● Forklift Driver: I advise against him returning to work in this role as the job demands are likely to lie outside his capacity limits.
● Product Assembler (light items): I advise against him returning to work in this role as the job demands are likely to lie outside his capacity limits.
● Trade Sales: I advise against him returning to work in this role as the job demands are likely to lie outside his capacity limits.
● Delivery Driver: I advise against him returning to work in this role as the job demands are likely to lie outside his capacity limits.
● Warehouse Administrator: I am of the opinion that he can return to work in this role with the restrictions outlined above although I recommend a job specific worksite assessment as there are tasks underneath this job title that could lie outside his capacity limits.
● Draft Person: I am of the opinion that he can return to work in this role with the restrictions outlined above.
● Customer Service Ordering Clark: I am of the opinion that he can return to work in this role with the restrictions outlined above.
● Warehouse Clark: I am of the opinion that he can return to work in this role with the restrictions outlined above.
● Forklift Driver: I advise against him returning to work in this role as the job demands are likely to lie outside his capacity limits.
● Packer: I am of the opinion that he can return to work in this role with the restrictions outlined above.
7.To what extent (if any) are the worker’s symptoms or level of impairment due to functional overlay, exaggeration, psychological or psychosomatic factors?
There is no evidence of functional overlay. I did not identify any improvement of range of movements upon distraction. There were no nonorganic features identified at evaluation.
8 Whether you consider the worker’s employment was a significant contributing factor to the onset of his alleged condition.
I am satisfied that Mr Sudke’s employment was a significant contributing factor to his injury and his current impairment and associated disability.”[53] (sic)
[53]DCB 69ꟷ71
The credit of the plaintiff
44In this proceeding, the defendant does not make a submission that the plaintiff’s credit was seriously impeached or that he was an untruthful, or unreliable witness.[54] But, the defendant submitted that the plaintiff was perhaps careful with his answers in a way that caused him to cast his answers in a more negative light in respect to his residual work capacity.[55]
[54]T98, L24-28
[55]T99, L5
45I do not accept the submission that the plaintiff was being “careful” with his evidence of work capacity. It is relevant, in my view, that he gave his evidence in a consistent manner, bearing in mind that he was born overseas, English is a second language for him and bearing in mind his unfamiliarity with the court process. I am satisfied that I can rely on him as an accurate and reliable witness. He made appropriate concessions against interest. As has been said many times before, when it comes to an assessment of the “seriousness” of a claimed injury, the credit of the plaintiff is an important issue and an important starting point.[56]
[56]Johns v Oaktech Pty Ltd [2020] VSCA 10
The defendant’s submissions regarding work capacity
46The defendant appropriately identified that all doctors endorsed the plaintiff as having some sort of residual work capacity.[57] The defendant highlighted the opinions of the treating physiotherapist, Ms Mahanama, and the treating general practitioner, Dr Hamimi, to the effect that the plaintiff has a residual capacity for full-time work.
[57]T99
47In particular, the defendant highlighted the opinion of Ms Mahanama as especially important because she is the primary treater.[58] In that regard, it was submitted ―
“She sees him more than anyone, that is, she sees him weekly. And she is, in my submission, more closely in tune with his physical capabilities and tolerances and the trajectory of his progress than any other treater and certainly any other expert. From transcript p.52, the plaintiff confirmed as much, he confirmed the closeness of the treatment that she had provided to him. And at p.134 she sets out what she believes are appropriate restrictions for him and these are as to date as you can get. They're from three days ago.
And then on p.136 the treating physio endorses the suitability of six of the proposed jobs, with restrictions, but she lists them all there. Forklift driver, product assembler for light items, trade sales in paint, delivery driver, store person or warehouse administrator and of course draftsperson, which the defendant submits is the key job which the plaintiff is suitable for in the circumstances.
She goes further however than saying he has a capacity for those jobs with reference to her restrictions but over the page at p.137 she says, and this is the key comment from this key treater in the defendant's submission, ‘For all of the above mentioned prospective employment positions, Mr Sudke is advised to gradually increase his hours and duties over a three month period from four hours per day on three non-consecutive days per week and then adding four hours every fortnight as tolerated up to a maximum of eight hours per day, five days per week’.
So, what she is recommending and endorsing is 40 hours a week in the not too distant future. That is, full time work, full time work, in a range of jobs. So, that report, as I submitted, is a key report and a key opinion and it attracts considerable weight due to the nature of this treater and the closeness of her treatment regime with this plaintiff.”[59]
[58]T100, L22
[59]T100, L24-T101, L28
48It was further submitted that Ms Mahanama and Dr Hamimi were supported by the opinion of Dr Thomas, given that Dr Thomas did not put a limitation on the number of hours that the plaintiff could work. Dr Slesenger supported a return to full-time employment.
49In respect to jobs identified in the vocational reports tendered and relied on, to which I do not intend to make detailed reference, the defendant in closing submissions relied principally on the plaintiff having a residual capacity for jobs identified as a draftsperson. The defendant submitted that the plaintiff is a man who wants to work, has trained to be a draftsperson and could commence in that job tomorrow if it was there.[60]
[60]T109
50The defendant’s primary submission was that the plaintiff is now fit for full-time light work, as a draftsperson, or in other jobs identified by it in vocational assessments relied on, namely product assembler,[61] trades sales,[62] delivery driver,[63] and warehouse administrator.[64]
[61]DCB 78
[62]DCB 80
[63]DCB 81
[64]DCB 82
51Next, if the Court concluded that, contrary to the primary submissions of the defendant, the plaintiff was now fit for part-time work of no more than 20 hours per week, then based on a rate of pay of $1,574 gross per week as a draftsperson, as set out in the report from Acumen Health at DCB 83,[65] at 20 hours per week, that would equate to gross weekly earnings of $786 and the plaintiff would fail to satisfy the statutory formula.
[65]Apparently extracted by Acumen Health from plaintiff’s submissions regarding work capacity
52The plaintiff submitted that the evidence is “all one way” that he has restrictions in respect to his employment capacity, importantly in terms of hours and there should be a finding that he has a capacity for no more than part-time, 20 hours a week.[66]
[66]T118, L22-28
53In respect to the opinion of Ms Mahanama, the plaintiff submitted that when carefully considered, her reports were not as optimistic as the defendant suggested. The plaintiff submitted that Ms Mahanama placed a number of restrictions on a return to work, including restrictions for sitting, bending, lifting and the like. The plaintiff noted her opinion that the plaintiff should return to work on a part-time basis and then increase his hours. Notwithstanding Ms Mahanama’s comments that it was possible that the plaintiff would be able to return to full-time employment, it was submitted on his behalf that there ought to be a realistic outlook taken which is for part-time and not full-time work, based on acceptance of the plaintiff’s evidence.[67]
[67]T121, L14-24
54Similarly, in respect to Dr Hamimi, his report was perhaps one from an over-confident general practitioner “in the scheme of the overwhelming medical evidence supporting a somewhat more cautious approach”.[68]
[68]T125, L10-12
55In respect to a capacity for work as a draftsman, the plaintiff submitted that the appropriate figure was as set out in the report from Mandy Morgan of Flexi Personnel dated 9 August 2021,[69] at $27.09 gross per hour, which for a 38 hour week equates to $1,029.42. If that rate were selected and if it was accepted that the plaintiff could work for no more than 20 hours per week, then he would satisfy the statutory formula. It was submitted that Ms Morgan’s figure was the more reliable figure because it had been based on an adult employee paid under the Professional Employees Award, Classified Level 1, graduate engineering profession, rather than extracted from a website.[70]
[69]PCB 107
[70]T130, L14-20
56Further, if the Court accepted the plaintiff’s residual capacity at 20 hours per week and if the Court accepted Ms Morgan’s figure for a draftsperson, then the plaintiff noted that all of the jobs identified in vocational reports, if performed for no more than 20 hours per week, would see him satisfy the statutory formula.
57Finally, addressing the specific job identified by the defendant to work in a warehouse, the plaintiff accepted that he had the physical and intellectual capacity to perform that role. However, it was submitted again that his capacity was for part-time hours, no more than 20 hours per week, and in fact he would need to work approximately 27 hours per week in the warehouse role identified before he would fail to satisfy the statutory formula.[71]
[71]T147, L23
Resolution of the issues in dispute
58The first issue for resolution is whether the plaintiff is “after injury” fit for full-time or part-time work.
59If the plaintiff is now fit for full-time work, then issues such as rates of pay and types of jobs become irrelevant. If he is fit for full-time work, then the claim fails.
60A difficulty in resolving this issue is that the medical opinions do not all support the same conclusion. There is force in the submissions of the defendant that the treating physiotherapist and treating general practitioner endorse a residual capacity for full-time employment. However, a careful analysis of those reports makes it clear that both Ms Mahanama and Dr Hamimi have expressed an opinion on the assumption that the prognosis depends on the plaintiff undergoing surgery.[72]
[72]Dr Hamimi, PCB 57; Ms Mahanama, DCB 83
61To illustrate the point, Ms Mahanama comments in her recent report that “it is possible that he will be able to return to full-time work within his prescribed physical restrictions”.[73]
[73]PCB 83
62To some extent, the treating physiotherapist and general practitioner are expressing an opinion consistent with that expressed by Dr Akil, neurosurgeon. In his report of 31 May 2021, Dr Akil commented specifically upon the possibility of returning to work as a warehouse clerk, order clerk or mechanical engineering draftsperson. He said “I would propose a start weekly hours between four to eight and to increase provided he does not have any aggravation of pain”.[74]
[74] PCB 99
63The plaintiff gave clear, sensible and compelling evidence as to his day-to-day restrictions, as demonstrated by the difficulty he had sitting to give his evidence. On this topic of full-time or part-time “after injury” capacity, I accept his evidence that he would have difficulty with full-time employment, even in lighter employment as a draftsperson, or the other jobs identified by the defendant. He appeared in discomfort while giving evidence. His variable but constant levels of pain and the need to sit, stand, change posture and take breaks as required, tend to the conclusion that his is now fit at best for part-time employment.
64Pausing here, at the end of the day it is a matter of judgment by the Court as to how many hours the plaintiff is now fit to perform – remembering that I am conducting an analysis as required to apply a Gateway provision, which requires a judgment as to relative incapacity to be resolved after a consideration of the whole of the evidence.[75]
[75]Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545
65Returning to the whole of the evidence, the evidence from the treating neurosurgeon, Professor Bittar, is important. As at July 2020, Professor Bittar was of the opinion that the plaintiff should consider microdiscectomy surgery to relieve pressure on the L5 nerve root.[76] For reasons that are not important in this proceeding, that surgery has not occurred and there is no issue taken by the defendant as to the permanency of the plaintiff’s condition. In the more recent report of 7 September 2020, Professor Bittar repeated his treatment recommendation for a right L4/5 microdiscectomy.[77] Then, as already mentioned, in respect to work capacity, Professor Bittar stated the plaintiff was then able to work three to four hours per day, three to four days per week, in a very light physical role.[78]
[76]PCB 62
[77]PCB 66
[78]PCB 66
66Professor Bittar’s opinions fit nicely with those from the treating physiotherapist and general practitioner, namely that the plaintiff has some current residual capacity for part-time light work and that his prognosis for full-time work depends upon a result from surgery. But, as mentioned, surgery is not to occur and the issue of permanency is not raised by the defendant.
67Next, Dr Rowe, occupational physician, opined that the plaintiff’s current incapacity was permanent and likely to persist for the foreseeable future. His opinion was that the plaintiff “cannot work any more than 20 hours a week, and less initially, in suitable employment on a permanent, reliable and consistent basis”.[79] In that regard, to some extent, Dr Rowe’s opinion is similar to the treating physiotherapist and general practitioner, namely a return to work on limited hours and then an increase thereafter, albeit that Dr Rowe explicitly states he does not believe that will be for any more than 20 hours a week.
[79]DCB 105
68Again, as mentioned, for the purposes of a Gateway proceeding, and exercising a value judgment as I must, in my view, consistent with the submissions on his behalf, the plaintiff’s “after injury” capacity for employment is for no more than 20 hours a week.
What is the appropriate rate of pay for suitable employment?
69Having determined that the plaintiff can work “after injury” for no more than 20 hours a week, the remaining issue is the rate of pay for a job as a draftsperson. The other jobs identified by the defendant – leaving to one side whether they are suitable or not – all have rates of pay such that if the plaintiff undertook them at 20 hours per week, he would satisfy the statutory formula.
70The only evidence as to the rates of pay for a draftsperson is the evidence contained firstly in the Flexi Personnel report, being $27.09 gross per hour for an adult employee paid under the “Professional Employees Award 2020” and classified as a Level 1 graduate engineering professional ($27.09 gross per hour by 38 hours per week totals $1,029.42 gross) and the evidence in the Acumen Health report setting out a figure of $1,574, said to be the average gross weekly wage for a draftsperson extracted from issue is which figure is to be preferred.
72The figure given by Acumen Health is said to be the average gross weekly wage for a draftsperson, but I doubt very much that the plaintiff is now capable of achieving an average wage. Firstly, he has significant barriers to obtaining employment, including his injury, but also his background speaking English as a second language. He has a TAFE certificate and already when applying for jobs, such as the Star Aluminium job, he has found practical limitations of what that certificate has trained and equipped him to do.
73Doing the best I can on the available material, once again for the purposes of a Gateway provision, I prefer the rate of pay set out in the Flexi Personnel report for a Level 1 graduate engineering professional. That rate of pay, namely $1,029.42 gross per week, means that the plaintiff, now having a capability to work 20 hours per week as a draftsperson, has an “after injury” earning capacity of $541.80 gross per week or $28,173.60 gross per annum. As such, he has the requisite loss of 40 per centum or more and satisfies the statutory formula.
74Accordingly, for the reasons given, I am satisfied that the plaintiff has established an entitlement for leave to commence a proceeding for both pain and suffering and loss of earning capacity damages.
75I shall hear from the parties as to the appropriate orders, including the appropriate cost order.
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