Summerfield v Bgis Pty Ltd
[2021] VCC 332
•31 March 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00672
| DARYL GORDON Summerfield | Plaintiff |
| v | |
| BGIS Pty Ltd | Defendant |
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JUDGE: | Her Honour Judge Tran | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 and 26 March 2021 | |
DATE OF JUDGMENT: | 31 March 2021 | |
CASE MAY BE CITED AS: | Summerfield v BGIS Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 332 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – aggravation of pre-existing degenerative condition of spine – pain and suffering and loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325(1), s325(2)(e), s335
Cases Cited:Petkovski v Galletti [1994] 1 VR 436
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Ms J Frederico | Fittipaldi Injury Lawyers |
| For the Defendant | Mr P D Elliott QC with Mr S Scully | Minter Ellison |
HER HONOUR:
1Daryl Summerfield is fifty-eight years old. In 2014, he commenced working as a maintenance technician and apprentice electrician at the Latrobe Regional Hospital. Upon completion of his apprenticeship, he intended to work as an A‑Grade electrician for the remainder of his career.
2On 7 February 2018, Mr Summerfield was clambering from joist to joist through the roof space of the hospital, which he had accessed to repair a refrigerator condenser. He lost his balance while stretching and stepping from joist to joist, doing the splits (“the incident”). He felt immediate pain in his lower back. Over the next few days, the pain became more severe. Ultimately, he stopped work.
3It is not in dispute that Mr Summerfield is now incapable of performing the full duties of a maintenance technician and will never complete his adult apprenticeship.
4Mr Summerfield seeks leave to bring common law proceedings for both pain and suffering and pecuniary loss damages. He claims to have suffered a serious injury, in the form of either a permanent serious impairment of his spine or a permanent severe mental disorder. Mr Summerfield’s application raises the following issues:
(a) whether Mr Summerfield suffered a spinal impairment, in the form of aggravation of degenerative changes in his lumbar spine, as a result of the incident;
(b) whether the pain and suffering consequences of any such spinal impairment may fairly be described as being more than significant or marked and at least very considerable;
(c) whether the loss of earning capacity consequences of any such spinal impairment may fairly be described as being more than significant or marked and at least very considerable;
(d) whether Mr Summerfield will, after the date of the decision or the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;[1] and
(e) whether, as a result of the incident, Mr Summerfield suffered a mental disorder with either pain and suffering consequences or loss of earning capacity consequences which were more than “serious” to the extent of being “severe”.
[1]Section 325(2)(e)(ii) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”)
5For the reasons which follow, I have concluded that Mr Summerfield has suffered an impairment of his spine which satisfies the requirements of a serious injury with respect to both pain and suffering consequences and loss of earning capacity consequences. This makes it unnecessary to determine Mr Summerfield’s alternative claim that he has suffered a permanent severe mental disorder. However, for completeness, I record that I am not satisfied that Mr Summerfield suffers from a permanent severe mental disorder.
Did Mr Summerfield suffer a spinal impairment as a result of the incident?
6Senior counsel for the plaintiff submitted that as a result of the incident, Mr Summerfield suffered an aggravation of a pre-existing degenerative condition of his lumbar spine. This aggravation lead to a dramatic worsening of Mr Summerfield’s symptoms and a need for urgent spinal surgery. Unfortunately, the spinal surgery was only partially successful and Mr Summerfield continues to suffer serious ongoing symptoms, including pain in his back and left leg and cramping in his left leg.
7Senior Counsel for the defendant submitted that I should not be satisfied that Mr Summerfield’s spinal impairment resulted from the incident, as opposed to:
(a) Mr Summerfield’s pre-existing degenerative condition of the spine; and
(b) a subsequent fall Mr Summerfield suffered during the course of a return to work program after the incident.
Mr Summerfield’s pre-existing degenerative condition of the spine
8Mr Summerfield did not disclose any prior history of back problems in his undated first affidavit or in his second affidavit of 11 August 2020. Further, no history of back problems was recorded in the histories provided to:
(a) the consultant occupational physician, Dr Amanda Sillcock, at an assessment on 18 June 2020;
(b) the vocational assessor, Mr Peter Hartley, at an assessment via Google Duo on 1 July 2020;
(c) the orthopaedic surgeon, Mr Russell Miller, at an assessment via WhatsApp on 28 May 2020;
(d) the general surgeon, Mr Kenneth Brearley, at an assessment on 19 June 2019; or
(e) in his initial appointment with specialist occupational physician, Dr Joseph Slesenger, on 17 June 2019 or second appointment on 19 February 2020.
9However, in his third affidavit sworn 22 February 2021, Mr Summerfield gave the following history:
“I strained my back in 2006. I cannot recall making a worker’s compensation claim, but I did have a few days off work and I remember returning to work on light duties for about 1 week and then returned to normal duties thereafter.
I am told that there is a record of x-rays being taken of my spine on 13 January 2012, when I attended the chiropractor with pain in my back which I had been suffering for about one year. I am told the x-ray showed disc narrowing at L5/S1. I am not able to recall same.
I have attended a chiropractor from about March 2014 up until 11 January 2018. I have been shown the records and it appears I attended on approximately 15 occasions during this period, very often for my back, but also for my neck and my knee. I had a physical job, and I did suffer some general aches and pain, both in my back and other areas of my body. I attended the chiropractor for the purposes of maintenance so I was able to continue working, which in fact, I did.”
10The clinical notes of Latrobe Chiropractic and general practitioner, Dr Charles Luiz, were tendered in evidence. The clinical notes of Latrobe Chiropractic reveal that Mr Summerfield attended numerous consultations between March 2014 and March 2018. There are frequent references in these notes to lower back pain as well as other pain and issues, such as neck pain and foot pain.
11It appears from the clinical notes of Dr Luiz that Mr Summerfield complained of lower back pain to Dr Luiz on only one occasion, on 3 May 2016.[2]
[2] Plaintiff’s Second Further Supplementary Court Book (“P2FSCB”) 63
12No explanation was provided by Mr Summerfield for his failure to disclose his prior history of back pain in his first two affidavits or to the medico-legal specialists listed above. On the documents tendered in evidence, it appears likely that Mr Summerfield was aware of his prior history of back pain, given:
(a) he continued to see his chiropractor up to and after the date of the incident;
(b) on 21 February 2018, Dr Luiz records (apparently in the context of a discussion about WorkCover) “Previous back injury about 2006 while [working] for active electrical distributors”;[3]
(c) on 27 March 2018, his chiropractor, Ms Christina Dryden, records:
“controversy with W/C – bc hx of seeing chiro, querying existing LXB injury. CD review of records, initial presentation there is mention of left LxB and ref pain into the left leg, and then rough/o hx recurrent mention and episodes of lower back, r/l side, so yes existing LxB – 2012 XR illustrate L5/S1 IVD narrowing.” [4]
[Emphasis added]
[3]P2FSCB 59; see also report of Dr Joseph Slesenger dated 23 February 2021, Defendant’s Further Supplementary Court Book (“DFSCB”) 20
[4]DCB 39; see also report of Dr Joseph Slesenger dated 23 February 2021, DFSCB 16
and
(d) the defendant’s vocational assessor, Ms Joanne Bryant, also noted prior lumbar back pain in 2006, which she appears to draw from a referral by Mr Summerfield’s general practitioner, Dr Charles Luiz, dated 29 October 2018.[5]
[5] DCB 74 and item 3 at DCB 65
13On the other hand, Mr Summerfield was not cross-examined in relation to his failure to disclose this history to the medico-legal practitioners listed above and only briefly in relation to his failure to disclose that history in his first two affidavits. It was not put to him in cross-examination that he knowingly failed to disclose this history.
14Mr Summerfield also consulted Latrobe Chiropractic in the days after the incident. The clinical notes for 8 February 2018, the day after the incident, record:[6]
“3-4d left SI pain, ref into the left glut and down to the lat post thigh left, no obv trigger?? could have been - lifting in shed, half hr later noticed it… not heavy but awkward.
eva this arvo to follow thru,
did settle but being v.careful…
yday walking wide legged over struts in roof,”
[sic]
[6] Defendants Court Book (“DCB”) 38
15The clinical notes for 13 February 2018 record:
“lower back is painful, but not too bad
tramadol last night and fisiocrem on area, and reasonably comfortable,
lying flat and painfree, main issue ref pain into post lat thigh, left side,
not past the knee,
sitting the worst, and aggravates,
lying flat on back,
stand up and within a min pain returns.”
[sic]
16Mr Summerfield was cross-examined about his chiropractor’s notes of 8 February 2018 and 13 February 2018. He denied any memory of having attended the chiropractor in relation to the incident. He also denied any memory of having hurt his back in a “shed” or having three to four days of pain in the days prior to the incident. At one point he even appeared to deny knowledge of whether or not he had a shed at his house, although perhaps he misunderstood the question.[7] The contrast between his very clear and detailed memory of the incident, of receiving the results of his CT scan from his general practitioner and of the resultant surgery, and his refusal to admit any recollection of visiting the chiropractor at all at around the same time, was stark.
[7] Transcript (“T”) 36-37
17Senior Counsel for the defendant submitted that in light of the above, I ought not be satisfied that Mr Summerfield had suffered a permanent aggravation of the pre-existing degenerative changes in his spine as a result of the incident. He relied particularly on the opinion of Dr Slesenger who, once he had been provided with Mr Summerfield’s history of lower back pain and the chiropractor’s notes, expressed the opinion that:[8]
“This is an exceptionally difficult question to answer … Taking the evidence as a whole, I am of the opinion that the mechanism of the accident, namely walking over wide spaced roof trusses is a plausible cause of a brief aggravation of his lumbar spinal impairment. However, the cause of the initial deterioration appears to be activities performed in a shed as well as constitutional degenerative disease of the lumbar spine.”
[8] DFSCB 20
18It appears that the only medico-legal practitioners to have been provided with the chiropractor’s notes and a complete history of Mr Summerfield’s lower back pain are Dr Slesenger, an occupational physician retained by the defendant, and Mr Aliashkevich, a neurosurgeon retained by the plaintiff. In that context, Dr Slesenger and Mr Aliashkevich are the only medico-legal practitioners who can provide reliable opinions as to causation. Both express relatively tentative conclusions in relation to causation. Dr Slesenger (whose conclusions are extracted above) accepts that the incident caused an aggravation of Mr Summerfield’s lumbar spine condition but opines that it was only temporary. Mr Aliashkevich states:[9]
“Although the possible lifting episode 3 – 4 days before 8/2/2018 requires further clarification, it would appear that on the balance of probability, the incident on 7/2/2018 was a materially contributing factor to exacerbation of a pre-existing degenerative condition of the lumbosacral spine to a degree greater than minimal.
Based on the provided history, my examination findings on 4/12/2020 and results of the lumbosacral MRI on 12/11/2018, suggestive localised irritative neuritis, your client was unable to achieve good functional and neurological recovery from the stated incident on 7/2/2018, despite L5/S1 discectomy surgery on 27/2/2018. Hence, I believe it would be appropriate to say that, on the balance of probability, his current condition is still materially connected to the aggravation of his pre-existing degenerative lumbar spine condition in the incident on 7/2/2018.”
[9] Supplementary Report of Dr A Aliashkevich dated 25 February 2021, PCB 159-160
19I do have concerns about the credibility and reliability of Mr Summerfield’s evidence, given his apparent failure to disclose his pre-existing symptoms and his lack of memory of attending his chiropractor immediately after the incident. However, with some allowance for exaggeration, I accept his reports of his symptoms after the incident, given:
(a) the absence of cross-examination on Mr Summerfield’s failure to disclose his prior history of back pain to the medico-legal practitioners or any sustained attack on his description of his current symptoms;
(b) the contrast between the radiology immediately post incident, which evidences a large left L5-S1 disc prolapse,[10] and an x-ray taken in 2012 demonstrated only “Minor disc space narrowing L5/S1”;
(c) the consistency of the symptoms reported by Mr Summerfield with the objective observations of neurosurgeon, Dr A Aliashkevich, who was provided with a full history and prepared a very comprehensive and detailed report on Mr Summerfield. For example Dr Aliashkevich recorded some left calf wasting and “diminished sensation … on pinprick testing in the distribution of the left S1 more than L5 dermatomes”.[11] On this issue, insofar as Dr Aliashkevich’s objective observations are inconsistent with those of specialist occupational physician, Dr Slesenger (who recorded an absence of wasting in the left lower limb),[12] I prefer the opinion of a specialist neurosurgeon; and
(d) the acceptance by the other medico-legal and treating practitioners whose reports were tendered in evidence that Mr Summerfield’s reported symptoms were consistent with his clinical presentation. With the exception of Dr Slesenger (who raises concerns that there may be a non-organic basis for Mr Summerfield’s reported symptoms in his second report of 25 February 2020), the medico-legal and treating practitioners are remarkably consistent in accepting Mr Summerfield’s reported symptoms.
[10] PCB 191 and 193
[11] Report of Dr Ales Aliashkevich dated 4 December 2020, PCB 140cf
[12] Report of Dr Joseph Slesenger dated 25 February 2020, DCB 20
20I also accept that Mr Summerfield suffered a dramatic and distinct worsening of his symptoms following the incident. Prior to the incident, he was able to perform the duties of a maintenance technician full time, albeit with occasional complaints of lumbar back pain to a chiropractor. The lumbar back pain that Mr Summerfield experienced prior to the incident was only significant enough to be recorded on one occasion in Dr Luiz’s notes in over eight years of clinical records. It was not significant enough to justify prescription painkillers.[13] It was not significant enough to require large periods of time off work. It was not significant enough to require referral to a neurosurgeon or for surgery to be considered. There is no evidence of a significant worsening of his symptoms over the many years of chiropractor attendances. By way of contrast, within a few days of the incident Mr Summerfield had stopped work; consulted his general practitioner; and been prescribed significant painkilling medication. Less than three weeks after the incident, Mr Summerfield’s symptoms had deteriorated to the extent that he required urgent lumbar surgery.
[13]There is a reference to “tramadol last night” in the chiropractor’s notes of 13 February 2018; however, there is no record of this being prescribed in Dr Luiz’s notes until 13 February 2018. Given Mr Summerfield states that Dr Luiz was his only general practitioner, this is puzzling. It may be a typographical error or misunderstanding by the chiropractor. In any event, there is no evidence that Mr Summerfield took Tramadol prior to the incident.
21In this context, I am satisfied that the dramatic and distinct worsening of Mr Summerfield’s symptoms after 7 December 2011 is more likely than not to have resulted from a specific episode on or around 7 December 2011, rather than being a mere continuation of existing degenerative changes.
22The question, then, is whether the aggravation of Mr Summerfield’s pre-existing degenerative condition resulted from the incident on 7 December 2011 or the lifting episode in the shed three to four days earlier, which is referred to in the chiropractor’s notes.
23The chiropractor’s notes, as with any clinical notes, must be treated with due caution, particularly in the absence of evidence from the chiropractor in relation to their comprehensiveness or meaning. The chiropractor’s notes of 8 February 2018 appear to refer to three to four days’ pain which “?? could have been” caused by a lifting episode in the shed. However, the notes appear to go on to state that that pain had “settled” by the time of the incident. The note itself also seems to suggest that there was no obvious trigger (“no obv trigger”) for the three to four days’ pain.
24There is nothing in these notes to suggest that the three to four days of pain was any more serious than Mr Summerfield’s previous reports of pain, which did not prevent him from continuing to work as a maintenance technician. The tentative nature of the causal connection between the lifting in the shed which was “not heavy but awkward” and the experience of three to four days’ pain which subsequently settled can be contrasted with the incident in the roof space and the dramatic worsening in symptoms which followed that incident. Unfortunately, the chiropractor’s notes in relation to the incident itself seem to be incomplete, ending with a comma.
25It is possible that a lifting episode in a shed contributed to a worsening of Mr Summerfield’s symptoms. However, in a context where there is nothing to suggest that lifting episode in a shed was anything particularly out of the ordinary nor so significant as to explain the dramatic and distinct worsening of symptoms; where the causal link between Mr Summerfield’s symptoms in the notes of the chiropractor is tentative in nature; and where there is reference to the pain having “settled”, I am satisfied that it is more likely than not that the dramatic and distinct worsening of Mr Summerfield’s symptoms on and from 7 February 2018 was as a result of the incident, rather than a lifting episode in a shed three to four days prior.
Fall during return to work program
26In February 2019, Mr Summerfield returned to work under a return to work plan, initially working two 3-hour shifts per week. On 4 April 2019, during the course of one of those shifts, he says he tripped on a divot and fell, injuring his right knee and aggravating his back pain.
27The preponderance of the medical evidence was to the effect that the injury to Mr Summerfield’s right knee was a soft tissue injury. Mr Summerfield gave evidence that the right knee injury had resolved. I am satisfied that the right knee does not cause significant ongoing pain or reduce Mr Summerfield’s future capacity for employment.
28In relation to his spinal impairment, although the fall appears to have temporarily aggravated Mr Summerfield’s pain, there is no evidence that it resulted in any dramatic and significant worsening of symptoms of the kind experienced by Mr Summerfield after the incident. A review of Dr Luiz’s clinical notes of his appointments with Mr Summerfield in the period between the incident and his attempted return to work reveals that Mr Summerfield’s capacities remained very limited and, in particular, he struggled with spasms and cramps in his left leg. Dr Luiz’s clinical notes of Mr Summerfield’s consultations after the fall do not disclose any obvious ongoing worsening of these symptoms. Mr Summerfield gave evidence that his back had gone back to a similar condition to prior to the fall.[14] I accept this evidence.
[14] T26
29I am satisfied that the fall has not permanently aggravated Mr Summerfield’s lumbar spine condition.[15]
[15] T25
Can the pain and suffering consequences of Mr Summerfield’s spinal impairment be fairly described as being “more than ‘significant’ or ‘marked’ and at least very considerable”?
30As this is an aggravation case, I am required to perform a Petkovski v Galletti[16] comparison. I must compare the extent of impairment of Mr Summerfield’s spine before the injury with the extent of impairment of Mr Summerfield’s spine after the injury.
[16] [1994] 1 VR 436
31Prior to the injury, Mr Summerfield had occasional back pain, including lumbar spine pain. He attended a chiropractor approximately fifteen times between March 2014 and 11 January 2018 and often complained of lower back pain. However, aside from a strained back in 2006, which led him to take a few days off work, and a single complaint of lower back pain to his general practitioner in 2016, there is no evidence that the back pain he experienced was significant enough to require time off work, treatment from a qualified medical practitioner (as opposed to a chiropractor) or significant medication; or was serious enough to justify surgery.
32After the incident, as I have already noted in relation to causation, there was a distinct onset and worsening of symptomology. This culminated in a need for urgent surgery on 27 February 2018. Even after surgery, I accept Mr Summerfield’s evidence[17] that he is:
[17] Taken together with the largely supportive reports of the medico-legal practitioners.
(a) incapable of performing the duties of his previous occupation;
(b) incapable of completing his apprenticeship;
(c) suffering ongoing pain in his back and left leg of varying degrees of intensity and frequency;
(d) suffering spasms and cramps in his left leg which are unpredictable in onset and duration;[18]
(e) taking significant medication in the form of Tramadol SR, 100 milligrams each night, and Tramadol, 50 milligrams each day, plus Panadol as required;[19]
(f) with the exception of a period during the COVID-19 lockdown, receiving regular physiotherapy and hydrotherapy;
(g) living with the constant anxiety that he will aggravate his pain or cramping and, as a result, severely limited in activities involving bending, flexing, stooping and turning or twisting and struggles to walk distances of more than a few hundred metres;
(h) restricted in his capacity to perform household and gardening tasks other than very light tasks;
(i) somewhat restricted in his capacity to drive, although he gave evidence he was able to drive from the Latrobe Valley to Melbourne;[20] and
(j) enduring ongoing impacts on his sleep and his intimate relationship with his wife.
[18]I accept that the left leg symptoms are radiculopathy resulting from the impairment of Mr Summerfield’s spine and properly viewed as a consequence of that impairment.
[19] T58
[20] T28; T49, L9-10; T68
33It is possible that further surgery or spinal injection will be warranted in the future or that a pain management course would assist Mr Summerfield with the management of his symptoms. However, I am satisfied that Mr Summerfield has to date acted reasonably in following the advice of his treating practitioners in relation to possible treatments. I am also satisfied on the balance of probabilities that the consequences listed above are permanent.
34Having regard to the above, I am satisfied that the pain and suffering consequences to Mr Summerfield of his spinal impairment are very considerable and certainly more than significant and marked.
Can the loss of earning capacity consequences of Mr Summerfield’s spinal impairment be fairly described as being more than significant or marked and at least very considerable?
35I will consider loss of earning capacity in more detail in the next section. However, I record for completeness that I am satisfied that the narrative test in s325(2)(c) of the WIRC Act has been satisfied with respect to loss of earning capacity. Mr Summerfield has lost his capacity to work as a maintenance technician and the chance to complete his apprenticeship and qualify as an A-Grade electrician. Even if Mr Summerfield has some retained work capacity, the incident has resulted in a dramatic restriction on his flexibility and employability in the workforce which I am satisfied can fairly be described as “very considerable”.
Will Mr Summerfield, after the date of the decision or the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more?
36In order to meet the requirements of s325(2)(e)(ii) of the WIRC Act, Mr Summerfield must establish that he 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 a financial loss of 40 per cent or more.[21]
[21]It was not entirely clear whether Mr Summerfield, as an apprentice, also had to meet the requirements of s325(2)(e)(i); however, nothing turns on this on the facts of this case, as, for the reasons which follow, I am satisfied that he satisfies s325(2)(e)(i) in addition to s325(2)(e)(ii), based on the agreed “without injury” earning capacity of $85,000 per annum.
37The defendant accepted that Mr Summerfield could no longer perform the full duties of his previous occupation but maintained that Mr Summerfield had a capacity to work full-time hours in an alternative role. In support of this submission, the defendant relied principally upon:
(a) a vocational assessment and labour market analysis report dated 20 July 2020 prepared by Joanne Bryant which proposed positions as sales representative, test and tag inspector, security officer, automotive service manager and driving instructor for Mr Summerfield;[22]
(b) the report of Dr Slesenger dated 25 February 2021 in which Dr Slesenger considered Mr Summerfield’s suitability for these roles and imposed no limitation on the hours which Mr Summerfield could work;[23]
(c) the reports of the plaintiff’s consultant occupational physician, Dr Amanda Sillcock, who accepted that Mr Summerfield could work in testing and tagging, albeit for no more than 20 hours per week;[24]
(d) the evidence of his treating practitioners, particularly his general practitioner and treating physiotherapist, that Mr Summerfield had a capacity to perform alternative duties;[25] and
(e) the plaintiff’s previous return to work under a return to work plan for six hours per week.
[22] DCB 62-94 and D2FSCB 4-23
[23] DFSCB 19
[24] PCB 47-54 and 40-46
[25] See PCB 163; PCB 169; see also Dr Luiz’s clinical notes, for example at P2FSCB 11
38In relation to the job of sales representative, Dr Slesenger notes that the role requires lifting of up to 10 kilograms which is outside Mr Summerfield’s current lifting limits, although he suggests that some of the tasks of the role could be within Mr Summerfield’s capacities. The role also is likely to require significant walking, which Mr Summerfield finds particularly difficult due to the risk of cramping. This is not a suitable occupation for Mr Summerfield.
39In relation to the job of security officer, Dr Slesenger records that he is “optimistic” that Mr Summerfield could return to work in this role, although he recommends a job specific worksite assessment be performed. Although the suggested role does seem to be largely sedentary, the role of security officer is one of significant responsibility. The role necessarily requires a capacity to concentrate and react appropriately to any security issues, even if physical attendance at any incidents is not required. This is not consistent with Mr Summerfield’s symptoms of unpredictable episodes of pain and cramping and the requirement to change position and lie down at times to relieve those symptoms. It is also not consistent with his taking significant pain medication and experiencing interrupted sleep. This is not a suitable occupation for Mr Summerfield.
40In relation to the position of automotive service advisor, Dr Slesenger records that “the job demands were described as varying and … Whilst I am optimistic that he could return to work in this role, I recommend a job specific worksite assessment … to ensure that the job demands lied within his capacity limits”. Neither Mr P Hartley nor Dr A Sillcock were of the view that Mr Summerfield had the necessary skills to be an automotive service advisor. This is not a suitable occupation for Mr Summerfield.
41In relation to the position of driving instructor, Dr Slesenger was “optimistic” that he could return to work in this role and said that the job demands would fit within the sedentary capacity. Dr A Sillcock did not think the role was suitable, as it meant sitting in a car for a significant period. Mr P Hartley also raised concerns in relation to the requirement for sitting and noted that to gain the necessary authority to teach driving, Mr Summerfield would need to meet the Medical Standards for Commercial Driving.
42Mr Summerfield has given evidence that he is able to drive and continues to do so. It is possible Mr Summerfield could cope with the physical requirements of this job with frequent rest breaks and greatly shortened hours (no more than 20 hours per week). However, driving instructor is not a suitable occupation for him from a public safety perspective given the significant pain medication he is taking; the possible distracting effect of unpredictable episodes of pain and cramping, and his interrupted sleep.
43Finally, in relation to the job of tester and tagger, Dr A Sillcock thought that Mr Summerfield could perform this role, although she thought he could do so for no more than 20 hours per week. Dr Slesenger noted that it would require a lift limit of up to 9 kilograms, which was outside the limitations placed by him. However, he went on to say that there were “tasks underneath this job title that could lie within his capacity limits and there are work locations where he would be able to return to work with the restrictions outlined above”. Mr P Hartley noted that for every related job over the past 31 days he was able to access, testing and tagging was only one part of a broader job. He also noted that the role invariably involved driving to varied locations and undertaking testing work at desk and floor level, climbing behind desks to access power points, computers and cord and moving computers and other heavy electrical goods. Mr Summerfield also gave evidence from his own experience of performing testing and tagging in the course of his role as a maintenance technician. He said that it involved frequent bending and crawling to access power points, for example under desks, which he just could not do because it caused him too much pain.[26]
[26] T45-46
44I accept the evidence of Mr P Hartley and Mr Summerfield that the role is likely to involve walking to varied sites and bending and crawling to access power points. I am unable see how testing and tagging of appliances could be effectively performed onsite without such actions. These actions are likely to be difficult and at times painful for Mr Summerfield. I accept that Mr Summerfield could nevertheless perform such a role on a part-time basis, with frequent breaks, permission to pace himself and strict lifting limits.
45Dr Slesenger appears to suggest[27] that Mr Summerfield could work full-time hours, although it is not clear whether this opinion applies to the role of tester and tagger. In any event, I prefer the evidence of Dr A Sillcock that Mr Summerfield could work as a tester and tagger for no more than 20 hours per week. Dr Slesenger does not provide any explanation or path of reasoning for his apparent conclusion that Mr Summerfield can work full-time hours. In view of Mr Summerfield’s symptoms, I accept that he would require shorter shifts, frequent breaks and permission to pace himself so as to cope with any flare-ups of pain or cramping. Dr Sillcock’s evidence is also supported by:
(a) the views of Mr Miller, an orthopaedic surgeon retained by Mr Summerfield, that a return to work will be difficult to achieve;[28]
(b) the views of Dr G Wilson, that “the only work he would be able to do would be of a very sedentary nature and then not on a fulltime basis”;[29] Dr K Brearley that “He does not have a current work capacity because of his back and left leg symptoms”,[30] and Dr Michael Baynes that the plaintiff does not have a capacity for alternative duties at this point.[31] Each of these medical practitioners were originally retained by the defendant.
[27] Through his failure to include any restrictions on the number of hours Mr Summerfield works.
[28] PCB 120
[29] PCB 179
[30] PCB 187
[31] Plaintiff’s Supplementary Court Book (“PSCB”) 6
46In conclusion, I am not satisfied that Mr Summerfield is totally unable to work. It seems to me that he remains capable of making a meaningful contribution in the workforce. It is regrettable that he has made no attempt to apply for any jobs since the incident. However, I am satisfied that he is unable to work more than 20 hours per week in sedentary or very light duties’ employment and will remain under these restrictions permanently.
47It was agreed by the parties that Mr Summerfield’s “without injury” earning capacity was $85,000 per year. For Mr Summerfield to satisfy s325(2)(e)(ii) of the WIRCA Act, he must show a permanent loss of earning capacity of 40 per cent or more. This translates to an earning capacity of no more than $51,012 per year. I am satisfied that if Mr Summerfield worked 20 hours per week as a tester and tagger he would earn $431,40 per week or $22,433 per year.[32] Even using the much higher figures proposed by the defendant’s vocational assessor, Joanne Bryant, Mr Summerfield would earn $840 per week or $43,680 per year. This is less than the required threshold of $51,012 per year.
[32] Flexi Personnel Earnings Report dated 17 February 2021, PCB 150
48I am satisfied that Mr Summerfield has, and will continue permanently to have, a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
Has Mr Summerfield suffered a mental disorder with either pain and suffering consequences or loss of earning capacity consequences which were more than “serious” to the extent of being “severe”?
49It is not necessary for me to determine this issue as I am satisfied that Mr Summerfield has suffered a serious injury, with respect to both pain and suffering consequences and loss of earning capacity consequences, by reason of his spinal impairment. However, for completeness, I will briefly state my conclusions.
50Mr Summerfield’s treating psychologist supports a diagnosis of anxiety, depression and Post-Traumatic Stress Disorder. However, she goes on to state:
“It would be ideal if Daryl were to be able to work again. It is not actually his psychological injury which is holding him back. He wants to work. He is motivated to work. He enjoys work and is a good team player … it is not Daryl’s psychological functioning here providing the major barrier to employment. It is his [physical injury] … capacity.”[33]
[33] Report of Ms L Dalton dated 27 May 2020, PCB 166-167
51Dr G Schutz, the plaintiff’s medico-legal psychiatrist, diagnoses a moderate Adjustment Disorder with Anxious and Depressed Mood. Dr Schutz records that Mr Summerfield –
“… appeared mildly restricted in affect. He had no thought disorder. He had no manic or psychotic signs or symptoms. His cognition was … grossly intact and he provided a clear and comprehensive history. He had reasonable insight and judgment.”[34]
[34] Report of Dr G Schutz dated 13 June 2020, PCB 110
52Dr Schutz concludes that given his lowered stress tolerance, Mr Summerfield could cope with working approximately 25 to 30 hours per week.
53To the extent there is a conflict, I prefer the views of Mr Summerfield’s treating psychologist in relation to Mr Summerfield’s capacity to work. I am not satisfied that Mr Summerfield suffers a severe mental disorder within the meaning of s325 of the WIRC Act, either with respect to pain and suffering consequences or loss of earning capacity consequences.
Conclusion
54I will grant Mr Summerfield leave to bring an action for damages for both pain and suffering damages and pecuniary loss damages. I will hear from the parties on the question of costs.
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Certificate
I certify that these 19 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 31 March 2021.
Dated: 31 March 2021
Jane Le
Associate to her Honour Judge Tran
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