Techane v Request Personnel Pty Ltd
[2015] VCC 1301
•22 September 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-01611
KEBROM TECHANE
| Plaintiff |
| v |
| Defendant |
REQUEST PERSONNEL PTY LTD (ACN: 093 665 377)
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 & 21 August 2015 | |
DATE OF JUDGMENT: | 22 September 2015 | |
CASE MAY BE CITED AS: | Techane v Request Personnel Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1301 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application
Catchwords: Application for the recovery of pecuniary loss damages only – entitlement to leave for pain and suffering damages conceded – whether plaintiff permanent loss of earning capacity productive of a financial loss of 40% or more – suitability of alternative employment – whether reasonable attempts to rehabilitate or retrain
Legislation Cited: Accident Compensation Act 1985
Cases Cited: The Herald & Weekly Times Limited v Jessop [2014] VSCA 292
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Oldfield | Zaparas lawyers |
| For the Defendant | Ms R. Kaye | Hall & Wilcox |
HER HONOUR:
Introduction
1 The plaintiff, Kebrom Techane, is 35 years of age. He is single with one child, who resides with her mother. At age 15, the plaintiff migrated from Ethiopia to Australia where he completed his education to Year 11 level.
2 Since leaving school, the plaintiff has worked either as a delivery driver or in labouring duties. In 2007 he obtained heavy truck licences.
3 The plaintiff was employed as a truck driver by Request Personnel Pty Ltd (the employer) from July 2011. He was placed with Linfox delivering alcohol to restaurants and bars in Melbourne.
4 On 20 October 2011 whilst making a delivery to a store in Richmond the plaintiff’s left hand became stuck when closing the truck’s tailgate causing a crushing injury to his dominant left hand (the injury). The injury involved fractures of the proximal phalanx of the left thumb and of the middle phalanges in both the middle and ring fingers.
5 The plaintiff is a musician, who said that prior to the injury his interest and passion had been in playing, writing and recording music. He played bass guitar, drums and keyboard, he created his own music using turntables, he provided other musicians with sound technician support at live venues and, in the past, he had earned money working as a DJ and playing live music.
6 By his account, when he was not working as a truck driver the plaintiff’s time was spent pursuing his interest in music, which he had hoped would become a full-time career. In the meantime, the plaintiff drove trucks to support himself financially and to support his ambition to become a full-time musician.
The application
7 The plaintiff sought leave under section 134AB(16)(b) of the AccidentCompensation Act (the Act) to institute common law proceedings for pecuniary loss damages only. It follows from the defendant’s concession that the plaintiff was entitled to leave in respect to pain and suffering damages, that the defendant had also conceded permanent serious impairment or loss of body function in respect to the plaintiff’s dominant left upper limb.
8 The plaintiff was required to prove various matters. Under section 134AB(38)(c) of the Act, he was required to prove loss of earning capacity consequences of the injury that, when judged by comparison with other cases in the range of possible impairments or loss of body function, could be fairly described as at least very considerable.
9 The plaintiff was required to discharge the burden imposed by section 134AB(38)(e)(i) and (ii) of the Act, by establishing a permanent loss of earning capacity, productive of financial loss of 40% or more and, under sections 134AB(19) and 134AB(38)(g) of the Act, to establish any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.
10 The plaintiff would not establish the requisite loss of earning capacity if, after taking into account his physical capacity for suitable employment and his post-injury attempts to participate in rehabilitation and training, he had a capacity for any employment which, if exercised, would result in him earning more than 60% of pre-injury earnings as determined in accordance with section 134AB(38)(f) of the Act (the without injury earnings figure).
11 Section 5 of the Act defines “suitable employment” such that the plaintiff’s capacity to earn from suitable employment must be taken into account, regardless of whether the suitable employment is available and is of a type or nature that is generally available in the employment market.
12 In assessing the consequences of the impairment or loss of function of the plaintiff’s left upper limb as a result of the injury, psychological or psychiatric consequences were disregarded.
The dispute
13 The defendant’s contentions are summarised in the following paragraphs.
14 Firstly, the defendant submitted the plaintiff had not discharged the onus of proving a permanent loss of earning capacity productive of a financial loss of 40% or more because:
· he had a retained capacity, which if exercised in suitable employment indicated an earning capacity of 60% or more of the without injury earnings figure as determined under section 134AB(38)(f);
· the plaintiff had not made sufficient attempts to participate in rehabilitation and retraining and had not thereby established an inability to be retrained and to undertake suitable employment;
· any loss of earning capacity was not permanent.
15 Secondly, whilst the plaintiff’s credit had not been directly challenged, the defendant submitted the Court should find the plaintiff had not been forthcoming when giving evidence and that some aspects of his evidence had been unreliable and inconsistent.
16 As to the plaintiff’s evidence, among other things I noted a tendency to answer in a non-responsive fashion. I attributed this to a number of factors:
· the nature of the questions asked. At times I was left with the impression that counsel and the plaintiff were at cross purposes;
· at times a lack of understanding of the question as a whole, such that the plaintiff answered only part of the question;
· at times some difficulty on the part of the plaintiff in articulating his answers;
· at times a reluctance to concede matters adverse to his case, as for example when the plaintiff denied receipt of correspondence from the insurer threatening termination of payments of compensation. I concluded it was likely that some or all of the correspondence tendered had been received at the address at which the plaintiff agreed he was residing at the time. My reasons for making this finding are set out in my discussion of the correspondence in due course.
17 These observations aside, my overall impression was that, more often than not, the plaintiff had tried to answer questions to the best of his ability.
The evidence
18 The plaintiff attested to the accuracy of two affidavits sworn on 20 November 2013 and 20 August 2015. He was cross-examined.
19 Both parties tendered extracts from their respective Court Books.
20 The materials tendered by the plaintiff comprised multiple reports from his treating general practitioner, physiotherapist and medico-legal specialists[1].
[1] Exhibit P1
21 The material tendered by the defendant from its Court Book comprised several medico-legal reports; two NES Vocational Assessment Reports from Nabenet dated 23 February 2013 and 17 July 2014; a Nabenet NES Job Seeker Plan dated 19 July 2013; a Nabenet NES Worker Independent Job Seeker Plan dated 22 November 2013 and Payroll Advice documents for the plaintiff for the period 20 July 2011 to 30 January 2014.[2]
[2] Exhibit D1
22 Additional documents tendered by the defendant from its Court Book comprised an affidavit of John Webb sworn 18 August 2015, a Financial Controller with the employer; a Notice of Review of Ongoing Entitlement dated 20 August 2013 and two Notices of Termination of Weekly Payments dated 10 October 2013 and 13 March 2014 respectively.
23 A Statement of Calculation of Loss of Earning Capacity was submitted by the plaintiff. The defendant also submitted its figures on loss of earning capacity. Neither document was tendered.
Treatment and diagnoses before the plaintiff ceased employment in October 2012
24 On 20 October 2011 the plaintiff was taken by ambulance to St Vincent’s Hospital where orthopaedic specialist in hand surgery, Mr Thomas, openly reduced and internally fixed the left thumb fracture and applied K-wires to the ring finger fracture. At the time, the middle finger fracture was considered stable.
25 After being discharged from hospital, from 4 November 2011 the plaintiff attended for weekly hand therapy with physiotherapist and specialist in hand therapy, Ms Campbell-Smith. This therapy continued for about a year during which time the plaintiff underwent several further procedures.
26 On 24 November 2011 the K-wires were removed and on 15 May 2012 Mr Thomas removed the plate from the left thumb and performed an extensor tenolysis to free the extensor tendons.
27 On 3 January 2012 the plaintiff returned to light office duties at the Linfox depot for about four hours per day. Following further surgery on 19 June 2012 the plaintiff again returned to light office duties for about four hours per day with lifting restricted to 1 kg. The hours worked were increased to 6 hours per day from about 16 July 2012.
28 Ms Campbell-Smith’s report dated 11 September 2012 relevantly noted the following matters:
· within days of the return to work on 3 January 2012, but before the further surgical procedures, the plaintiff reported difficulties in performing even light office duties. He said that within three hours of commencing these duties he experienced tiredness in the hand and a tingling sensation in the thumb;
· post-operatively, the plaintiff continued with weekly hand therapy the emphasis being on improving the range of motion and strengthening the thumb and improving joint flexion in the middle and ring fingers;
· following the second return to work on 16 July 2012, the plaintiff reported ongoing considerable pain in the thumb and reliance on a thumb splint during the day to avoid drooping;
· on 13 August 2012 the plaintiff expressed concern about his inability to straighten his thumb. The plaintiff apparently reported he was managing work but had been frustrated by the number of shifts he was getting. It was not clear from the evidence whether this frustration had been caused by having too many or too few shifts;
· whilst there had been some improvement detected in joint flexion in the middle finger and in the bend in the ring finger and in grip strength, pain and hypersensitivity remained an ongoing problem. This prompted further consultation with Mr Thomas on 20 August 2012 and prescription of medication to relieve pain. In his only report dated 14 March 2013, Mr Thomas said, on this occasion, he noted persistent thumb IP joint extensor lag as well as some signs of radial nerve irritability on the dorsal aspect of the thumb. He recommended the medication, Amitriptyline in an attempt to settle the nerve irritability symptoms;
· when seen on 9 September 2012, the plaintiff continued to complain of pain in his left hand. This reportedly interfered with domestic activities involving lifting, cleaning or washing up and with the plaintiff’s ability to hold a drum stick for any length of time, play guitar and write music;
· as to his work capacity, in September 2012 the specialist for hand therapy considered the plaintiff fit to continue performing light office-type duties with lifting restricted to 5 kg. As to driving and delivery work, the hand therapist, ruled out repetitive entering or exiting trucks where this required use of both hands and, as had been required in the past, lifting in excess of 20 kg on a regular basis;
· as to his ongoing treatment, the plaintiff required further treatment to improve strength and decrease sensitivity around the scar and sensitivity due to radial nerve irritability. Ms Campbell-Smith thought the plaintiff could require fusion of the thumb IP joint in the future to help alleviate pain. Current medical evidence has not recommended this further procedure;
· as to the prognosis, this was explained in the following words –
The lag at the IP joint of Kebrom’s thumb is unlikely to change. Therefore he will be left with an inability to fully straighten his left thumb. The pain, tenderness and hypersensitivity on the dorsum of the thumb should settle with time and treatment. The tenderness in the DIP joints of the middle and ring fingers should decrease with time but he may always be left with a slight deficit in the ability to bend these joints. Kebrom’s grip strength should slowly improve but has plateaued presently due to persisting pain in his hand. His ability to pinch and perform fine motor activities with his left thumb will be reduced. The biggest problem appears to be ongoing pain in his hand which is preventing a progression of strengthening exercises. The pain is not only preventing Kebrom from returning to his previous work duties but also interfering with his daily home activities and preventing him from participating in various hobbies. It is difficult to foresee when and if Kebrom’s pain will settle and thus enable him to return to normal work duties and his hobbies outside work (sic).[3]
[3] PCB 53
29 I have already mentioned Mr Thomas’ only report. This report relevantly recorded the following further matters:
· when reviewed for the last time on 8 October 2012 the surgeon had also observed persistent extensor lag in the thumb joint, although at the time he anticipated that further hand therapy might achieve some minor further improvement;
· on 8 October 2012 Mr Thomas considered the plaintiff fit for modified duties on reduced hours, with restrictions on lifting to 5 kg. Whilst Mr Thomas appeared to have anticipated a return to the plaintiff’s pre-injury duties as a truck driver, at hearing it was not contended that the plaintiff’s pre-injury duties represented suitable employment for the purposes of the Act.
30 The plaintiff’s evidence was that the return to work had not been successful due to ongoing pain. He believed his contract with Linfox was terminated in October 2012 because he had not been capable of performing even light administrative duties productively.
31 As I understood the evidence, when the plaintiff returned to work his duties with Linfox were minimal. They consisted of assisting the dispatch clerk by answering telephone enquiries from customers about how far drivers were from making a delivery and collecting drivers’ worksheets, which the plaintiff said he placed in a tray. The plaintiff strongly rejected any suggestion that his duties had involved hands-on tasks such as using any of the computers in the office or assisting in carrying or arranging stock for drivers.
32 It was common ground that, in or about October 2012, a representative of the employer and the plaintiff had a discussion about the plaintiff performing alternative duties for the employer.
33 The employer alleged the plaintiff was offered a permanent position as a transport scheduler. The offer was subject to a three month probationary period. The parties agreed the plaintiff declined the offer made. According to the plaintiff he did so because he had already trialled similar duties with Linfox and by that stage believed himself to be physically unfit to perform these duties.
34 The plaintiff further agreed he had received an alternative proposal from the employer to pay for training as a Heavy Combination driver. However, the plaintiff said this proposal was communicated to him after he underwent surgery in late 2011 and before the first return to work on 3 January 2012. Essentially, the plaintiff denied refusing this offer. Rather he said he had agreed to retrain because at the time the offer was made he had expected to recover.
35 At no stage since October 2012, has the plaintiff’s treating general practitioner, Dr Andrianakis, certified him fit to perform the tasks evidently contemplated by the position the employer said had been offered. Moreover, as my discussion of the evidence shows in due course, I formed the view that the plaintiff was probably unfit to drive any type of vehicle which required sustained use of both hands to operate the steering wheel.
36 These matters and the medical evidence of ongoing disability and restriction, satisfied me that the plaintiff had acted reasonably in declining the offer to trial a period in the position offered and, subsequently, in not pursuing any earlier offer to retrain as a Heavy Combination driver.
The plaintiff’s current complaints
37 These are presented in a summary form as follows:
· there is little or no function in the plaintiff’s thumb and fingers. He can partially bend only his left index finger but can’t clench his left hand to create a fist;
· the hand is especially stiff and sore in the mornings;
· the plaintiff suffers constant burning pain in the left hand. This is worse in the thumb and on the back of the hand. He suffers from hypersensitivity to cold and touch. The former at times involves shocks of pain from the hand up the arm. As was apparent from the plaintiff’s presentation in court he tends to keep his left hand in his pocket evidently to reduce its exposure to temperature change. During re-examination the plaintiff explained that cold weather aggravated the level of his pain which, in turn, affected his ability to concentrate on or perform activities;
· the plaintiff said he had noted excessive sweating in his left arm pit;
· currently the plaintiff takes a range of medications. He takes 2 Tramadol and 2 Lyrica tablets daily in the treatment of pain as well as Nexium, the latter to manage gastric upset caused by the plaintiff’s use of the painkilling medication. At hearing the plaintiff said he was also taking Temazepam nightly to aid sleep;
· the plaintiff commenced seeing a physiotherapist, Ms Pennas in early 2015. Ms Pennas has taught him hand strengthening exercises, which the plaintiff said he performs daily. She has recommended exposure of the hand to cold water, which the plaintiff said he found too difficult because of the pain this caused;
· pain disrupts the plaintiff’s sleep at night, such that he usually only sleeps for about four hours and, as a result, during the day he experiences tiredness and difficulty with concentration;
· disability and pain has forced the plaintiff to change the way he does almost everything. He can no longer braid his hair or perform all of his own cooking and cleaning. Where he continues to perform tasks, such as shaving, these take much longer. The plaintiff said he was no longer able to play musical instruments such as the guitar, bass guitar, keyboard or drums and could not operate equipment used in production or recording of music or carry and set up instruments and equipment used in playing concerts or recording music;
· driving is difficult. The plaintiff avoids this. He relies mainly on public transport, although the plaintiff still owns a manual vehicle and acknowledged there were times when he needed to drive, as when he went to see his doctor. However, changing gears and steering were problematic. At hearing the plaintiff told the Court that he did not use his left hand. Rather when driving he used his right hand to change gears and to steer. The latter was particularly difficult and potentially dangerous when driving through a roundabout using only the non-dominant right hand. My impression, after reviewing all of the evidence, was that the plaintiff was not physically capable of safely operating even an automatic vehicle;
· writing was a problem. Depending on how well he slept the night before, temperature changes or the level of his pain, the plaintiff said he could write but could only use his right hand to operate a keyboard.
38 In my view, the various matters summarised above would likely restrict the plaintiff’s physical capacity to retrain for and to undertake alternative employment in the future.
39 At hearing the plaintiff agreed he had not applied for alternative employment after the placement with Linfox was terminated in October 2012. He receives Centrelink benefits and professes a desire to return to work (“I would love to be able to go back to work and earn a living but have been unable to because of the pain that I experience as a result of my injury”[4]) but said pain had prevented this.
[4] PCB 14
40 As to any post injury work in the music industry, at hearing the plaintiff told the Court he still owned and used a computer on which he had stored music software. He also owned a mobile telephone and, whilst he was capable of using the Internet and email, the plaintiff said he did not have an account.
41 As I understood the evidence, prior to the injury and until last year the plaintiff had been a member of a band, Royalty Noise. The membership of the band varied between six and twelve members, depending on the need for extra instrumentation for a gig.
42 The band had been involved in a project recording an album and making a CD which it had itself produced in 2014.
43 Prior to the injury, the plaintiff had produced and recorded about four of the songs on the album. In addition to writing the songs the plaintiff’s involvement in making the album had included using computer music software and playing whatever instrumentation was required, such as bass, drums, keyboard or guitar.
44 The plaintiff’s evidence was that he had been obliged to leave the band because he was unable to fulfil his commitment to it. However, before he left last year, the plaintiff had toured with the band to Byron Bay and the Blue Mountains in the role of an MC only.
The medical treatment and diagnoses since October 2012
45 The medical evidence largely confirmed the following matters.
46 The plaintiff has been treated by general practitioner, Dr Andrianakis since 22 October 2012 and, on referral, by consultant physician and pain specialist, Dr Blombery since 12 December 2012.
47 Treatment has been conservative and as mentioned by the plaintiff a combination of the analgesic medication, Tramadol and the antineuropathic agent, Lyrica continues to be prescribed with Nexium to manage the side-effects of the strong pain killing medication and Temazepam to manage problems with sleep.
48 As mentioned, the plaintiff has attended physiotherapist, Ms Pennas since early 2015 with treatment focused on improving his grip strength and decreasing the level of hypersensitivity to cold.
49 Since treatment of symptoms of nerve irritability was commenced in the latter part of 2012, from time to time the plaintiff has presented to treating doctors and/or medical-legal specialists on either side with symptoms of autonomic disturbance in the left hand. For instance, on examination:
· in February 2014, an occupational physician retained by the defendant, Dr Davison noted an increased perspiration pattern and additional hair growth over the dorsum of the fingers of the left hand;
· in October 2014 a general surgeon retained by the plaintiff, Mr Mangos, noted, among other things, hypersensitivity and “a good deal of swelling”;[5]
· in November 2014, an occupational physician retained by the plaintiff, Dr Slesenger noted, among other things, trophic change with reddening of the palm and increased sweating; and
· in March 2015 Mr Blombery noted the palm of the left hand was 1.5 degrees warmer than the right palm and there was tenderness to pressure over the hand and fingers.
[5] PCB 60
50 Two of the defendant’s specialists, pain and hand surgeon, Mr Buntine in May 2013 and occupational physician, Dr Brown, in March 2013 and June 2015 had not reported clinical findings suggestive of autonomic disturbance. However, as the above-mentioned summary confirms, at one time or another most doctors, including, Mr Thomas, Dr Andrianakis, Dr Blombery, Mr Mangos, Dr Davison and Dr Slesenger have. This evidence and the diagnoses reported since 2014 have persuaded me that the plaintiff likely suffers from a physical condition: a chronic pain syndrome with features of automatic disturbance. Dr Blombery explained it thus:[6]
Mr Techane continues to have features of a pain syndrome affecting the left hand. He has minor autonomic disturbance but it is my opinion that this is in the nature of a non-specific pain syndrome, where there is sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. This process is also termed central sensitisation.
[6] PCB 48
51 Moreover, based on recent medical examinations and reports submitted during 2014 and 2015, doctors, including the treating physiotherapist, have identified ongoing injury-related functional deficits affecting the plaintiff’s dominant left hand due to various factors such as reduced strength and/or loss of dexterity and/or pain and/or hypersensitivity.
Loss of Earning Capacity Consequences
52 I have already mentioned some aspects of the plaintiff’s evidence concerning his earning capacity and his attempts to return to the workforce.
The without injury earnings figure
53 The concern in this case was whether the plaintiff had a physical capacity for work which, if exercised in suitable employment, would result in him earning more than 60% of the without injury earnings figure where the latter was determined in accordance with the formula contained in section 134AB(38)(f) of the Act. This formula required the Court to measure the plaintiff’s loss of earning capacity by comparing his gross after injury earnings with the gross income expressed at the annual rate the plaintiff was earning or was capable of earning from personal exertion or would have been capable of earning from personal exertion during that part of the period within three years before and three years after the injury as most fairly reflected the plaintiff’s earning capacity had the injury not occurred.
54 In the present case, the period over which the without injury earnings figure was to be calculated was between October 2008 and October 2014.
55 For the reasons summarised below, I was satisfied the plaintiff’s gross annual income should be calculated by reference to the highest grouping of hours worked as a truck driver during the period of employment with the employer prior to the injury.
56 Both parties cited the recent Court of Appeal decision in The Herald & Weekly Times Limited v Jessop.[7] Among other things, Jessop established the following.
[7] [2014] VSCA 292
57 Firstly, section 134AB(38)(f)(ii) of the Act required the Court to ascertain the plaintiff’s gross annual income as most fairly reflected his earning capacity had the injury not occurred.[8]
[8] Ibid [42]-[44]
58 Secondly, for the purposes of the section, the plaintiff’s earning capacity was to be treated as a capital asset which, when exercised produced income from personal exertion. The plaintiff’s ability to earn income through personal exertion depended on the nature and quality of his capital asset and his willingness to use it to earn income. The plaintiff’s physical and mental capacities to work were relevant, as was the type of work he had been able to perform, the remuneration for that work and the hours the plaintiff had been willing to work.
59 Thirdly, the availability of work in the plaintiff’s pre-injury employment with the employer was a factor in informing the assessment of the plaintiff’s willingness to work.[9]
[9] Ibid [53]-[54]
60 Lastly, the actual hours worked by the plaintiff or his actual earnings were not necessarily the best evidence of his earning capacity when fixing a representative figure for the plaintiff’s earning capacity.[10]
[10] Ibid [55]
61 In the present case, as mentioned, in the years after leaving school the plaintiff worked in various positions as a courier driver or labourer. The history obtained during the vocational assessment on 7 July 2014 indicated that prior to 2011 the plaintiff had worked as a truck driver for eight months with Kennards delivering construction equipment and for eight years before that with Toll as a driver sorting and delivering freight. In the months preceding the injury he had been employed as a truck driver by the employer. As the plaintiff deposed, he drove trucks to support what he anticipated would eventually become a full-time career in the music industry.
62 The plaintiff’s Statement of Calculation of Loss of Earning Capacity (the Statement) indicated that no tax returns were submitted in the financial years ending 30 June 2009, 30 June 2010 and 30 June 2011. Tax returns submitted for the financial years ending 30 June 2007 and 2008 apparently disclosed gross income of $13,910 and $11,887 respectively.
63 The failure to mention tax returns for the three financial years subsequent to the injury suggests that these returns have not been submitted. Moreover, there was no direct evidence of what, if any, remuneration was earned from working in the music industry in the three years before or after the injury. The submissions made on behalf of the plaintiff, nonetheless, assumed that the plaintiff’s work as a musician during the relevant period had not been remunerative.
64 The Statement and the Payroll Advice documents, the latter tendered by the defendant contained details of the plaintiff’s pay records between 25 July 2011 and 30 October 2011.
65 The Payroll Advice documents showed that in the nearly 3 months prior to the injury the hours worked and the gross income earned each week from truck driving and delivery work varied from 8.25 hours and $222.27 gross for the week commencing 25 July 2011 to 54.5 hours and $1778.36 gross for the week commencing 12 September 2011 or 55.25 hours and $1579.64 gross for the week commencing 15 August 2011.
66 In four of the 11 full weeks worked prior to the injury, the plaintiff worked 44.25, 45.25, 45.5 or 47.25 hours. In the other five weeks, the plaintiff worked 55.25, 51.5, 54.5, 52.25 or 51 hours.
67 Whilst the defendant appeared to accept that the period worked as a truck driver prior to the injury most fairly reflected the plaintiff’s earning capacity had the injury not occurred, it was submitted that the representative figure should be calculated by averaging the gross amounts earned between 25 July 2011 and 23 October 2011. If adopted, this approach produced a without injury earnings figure of $1385.36 gross per week or $829.42 gross per week.
68 By way of contrast, the plaintiff submitted that, in the circumstances of this case, the approach contended for by the defendant would produce an unfair result. Counsel submitted, in my view correctly, that the plaintiff had demonstrated a capacity and willingness to regularly work as a truck driver for more than 50 hours per week and, whilst he was not remunerated for additional work as a musician, this activity nevertheless indicated the extent of his willingness to work and his capacity for work. Counsel submitted the sum of $1778.36 gross per week, namely the highest amount earned in the 11 weeks prior to the injury most fairly reflected the plaintiff’s earning capacity had the injury not occurred.
69 On the facts of this case, I was satisfied that any representative figure should make allowance for the fluctuations in the gross hours worked and in the gross income received from personal exertion from week to week and for the evidence that, more often than not, the hours worked exceed 50 hours per week. With these matters in mind I determined the representative figure by averaging the gross income earned by the plaintiff in the weeks in which he worked more than 50 hours. Using this approach, I formed the view that a representative figure of $1654.25 gross per week most fairly reflected the plaintiff’s earnings capacity had the injury not occurred. Based on this figure, the plaintiff was required to establish an ongoing financial loss of $661.70 gross per week. Alternatively, an inability to earn $992.55 gross or more per week for the foreseeable future.
Medical and capacity for suitable employment evidence
70 Under section 5 of the Act ‘suitable employment’ is defined as:
employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following –
a) the nature of the worker’s incapacity and pre-injury employment;
b) the worker’s age, education, skills and work experience;
c) the worker’s place of residence;
d) the details given in medical information including the medical certificates supplied by the worker;
e) the worker’s return to work plan, if any;
f) if any occupational rehabilitation services are being provided to or for the worker.
71 It was common ground that the plaintiff was not fit to return to his pre-injury employment. As mentioned the defendant did not press the point that with retraining the plaintiff was physically capable of working as a Heavy Combination driver.
72 The opinions of treating doctors, Dr Andrianakis and Dr Blombery and the physiotherapist, Ms Pennas varied.
73 Dr Andrianakis’ correspondence with the insurer during 2013 and his report to the plaintiff’s solicitors dated 13 August 2015 indicated that at no stage had he considered the plaintiff physically fit to return to work. Rather, during 2013 and 2014, he consistently resisted attempts by the insurer through occupational rehabilitation provider, Nabenet to orchestrate a return to alternative employment.
74 In his report dated 13 August 2015, Dr Andrianakis explained his patient’s progress since August 2013 in the following words:[11]
[11] PCB 36-37
Mr Techane was not fit for work due to his pain, left hand (dominant) disability and depression but was constantly hassled by Nabenet despite advice contrary to this complicating his rehabilitation further.
By April 2014 Mr Techane complained of pains in his left hand especially in cold weather or when he washes it in cold water. He describes needing to constantly wear a glove to protect it and then he still needs to place it in his pocket.
Mr Techane described the pain getting worse when he used his hand. He could no longer ride his bike because he could not properly grip the handlebars and use the brakes. He could not write and needed to retrain his right hand to do this. He also struggled using a keyboard.
…
Mr Techane was unable to get further rehabilitation of his left hand when his insurer ceased funding his injury and he was required to depend on minimal assistance from Medicare funded care plans.
Mr Techane could not afford further treatment since being placed on Centrelink sickness benefits….
75 It is convenient to deal with the insurer’s correspondence addressed to the plaintiff’s residential address and variously dated 20 August 2013, 10 October 2013, 11 November 2013 and 13 March 2014. The first of these letters informed the plaintiff that his entitlement to weekly payments of compensation was under review due to non-attendance with the occupational rehabilitation provider, Nabenet on 1 August and 15 August 2013. Among other things, the letter notified the plaintiff he was required to attend further appointments on 12 and 26 September 2013 and 10 October 2013.
76 The letter dated 10 October 2013 notified the plaintiff his weekly payments were suspended from 10 October 2013 for 28 days due to his failure to attend the appointments on 26 September and 10 October 2013. Among other things, the plaintiff was required to attend appointments on 24 October 2013 and 7 November 2013.
77 The next letter dated 11 November 2013, complained that the plaintiff had failed to attend the appointment on 24 October 2013 and, on 7 November 2013 he had advised Nabenet’s consultant he would not attend any further appointments. This letter notified the plaintiff his weekly payments would cease as at 7 November 2013.
78 The final letter dated 13 March 2014, among other things, notified the plaintiff that pursuant to section 114 of the Act, weekly payments of compensation would cease from 14 June 2014. Evidently, the insurer had determined the plaintiff had a current work capacity for suitable employment on the open market.
79 As I understood the evidence, during 2012 the plaintiff had been assisted in his return to work by the rehabilitation provider Recovre. From early 2013 he commenced attending Nabenet. Reports from this organisation indicated various attendances during 2013 and 2014 either for vocational assessments or job seeking support.
80 There were two vocational assessments, on 12 February 2013 and 7 July 2014.[12]
[12] DCB 73-79 and 95-103
81 In mid-2013 the plaintiff commenced a 26 week New Employer Services (NES) program under the auspices of Nabenet. [13] According to the NES Job Seeker Plan dated 18 July 2013, at the time, the plaintiff’s general practitioner had certified him unfit for any duties and the plaintiff had himself indicated that a return to work was not feasible until his functional capacity and pain levels had improved. He had also indicated that his medication regime caused fatigue and poor concentration and, as a result, negatively impacted his ability to return to work.
[13] DCB 80-82
82 Notably, the Job Seeker Plan contained a timetable of appointments for meetings between the plaintiff and Nabenet consultants on 1, 15 and 29 August 2013 and 12 September 2013.
83 The next Nabenet report (the NES Worker Independent Job Seeker Plan[14]) was submitted on 22 November 2013, subsequent to the insurer’s correspondence addressed to the plaintiff in August, October and November 2013 which warned the plaintiff of termination of weekly payments of compensation due to an alleged failure to attend various appointments.
[14] DCB 91-94
84 Among other things, this Nabenet report noted the following matters:
· in a letter dated 24 September 2013 Dr Andrianakis had indicated the plaintiff remained unfit to work;
· the plaintiff had only attended one of the scheduled NES appointments;
· the plaintiff had not attended the appointment on 26 September 2013. He had apparently reported that he did not intend to attend any further NES appointments and would send by fax medical information to explain his condition;
· at a meeting attended by the plaintiff on 7 November 2013, he continued to report that he was not capable of working due to his injury and had stated that he attended the NES appointment because this had been required by the insurer;
· on 7 November 2013, having discussed various job options with the rehabilitation consultant, the plaintiff nevertheless indicated that he was unlikely to attend further NES appointments and advised that he did not: “know how he supposed to work when the medications he takes make him drowsy. He said he struggles to undertake daily general living tasks” (sic).[15]
[15] DCB 93
85 Accepting for the moment the accuracy of the matters recorded in the two NES reports, in mid-2013 Nabenet had arranged appointments with the plaintiff for August, September and October as part of the NES job seeking assistance program. Throughout this period both the general practitioner and the plaintiff had consistently reported to Nabenet that by reason of his injury the plaintiff was not fit for any duties. The Nabenet reports indicate that, despite this, job seeking assistance was pursued with the plaintiff by reference to Dr Brown’s report dated 27 March 2013 in which, subject to restrictions on heavy lifting and fine dextrous movements with the left hand, the doctor had approved a list of job options to which the vocational assessment report obtained in February 2013 referred.
86 Under cross-examination the plaintiff was taken to the warning letters sent by the insurer during the latter part of 2013 and to various sections of the Nabenet reports.
87 As mentioned earlier, on this occasion, I formed the view that the plaintiff had been unwilling to concede likely receipt of the insurer’s correspondence or any failure to attend some or all of the appointments mentioned in the insurer’s correspondence and the last of the NES reports. The plaintiff insisted he had attended all appointments he had been required to and denied receiving the correspondence from the insurer, which the plaintiff agreed was appropriately addressed to his residential address. The plaintiff said he only received a telephone call advising him that payments would be terminated, at which time he advised the caller he had attended the appointment. According to the plaintiff, he went to an appointment after which, as he left, he was advised his payments were suspended.
88 The plaintiff claimed he could not recall telling the Nabenet consultant on 7 November 2013 that he would not be attending any further appointments. He did, however, recall giving the consultant a letter, which I understood was probably from his doctor confirming the plaintiff was unfit for work.
89 My reasons for finding the plaintiff’s evidence on this issue implausible, are briefly summarised in point form below:
· the three letters from the insurer were all correctly addressed. In my view it was unlikely that none of these letters were received by the plaintiff;
· whilst the plaintiff said he could not recall receiving the letter dated 24 October 2013, he, nonetheless, indicated he had attended the appointment with Nabenet on 7 November 2013. The NES report dated 7 November 2013 reiterates the defendant’s position that the plaintiff failed to attend appointments mentioned in the insurer’s correspondence and further indicates that there was discussion of attendance at future appointments at the meeting held on that date. Even if the plaintiff had not, as claimed, received correspondence from the insurer it is likely that at the meeting the insurer’s concerns were raised along with discussion of future compliance with the requirements of the program;
· based on his responses, the plaintiff confirmed that payments had been suspended: “on and off”.[16] Indeed he said, this turn of events had prompted him to consult lawyers;
· the plaintiff did not specifically deny advising the Nabenet consultant that he would not attend appointments in the future (“… I don’t recall saying I won’t be coming to an appointment”[17]). Rather he appeared to prevaricate and, ultimately, failed to provide any satisfactory explanation for the problems Nabenet reported in arranging appointments and providing job seeking services during the latter part of 2013.
[16] TN 45
[17] TN 47
90 In summary, based on both the documentary and oral evidence, my impression was that in 2013, bolstered by the general practitioner’s view that he remained unfit for alternative employment, the plaintiff had, as recorded by Dr Andrianakis, felt constantly hassled by Nabenet. Until suspension of payments of compensation, he had relied on his doctor’s certificates of incapacity and had not attended all of the appointments notified.
91 Whilst I have rejected some aspects of the plaintiff’s evidence, I was nonetheless satisfied that the plaintiff’s belief at the time that he was not physically fit for alternative employment was probably genuine and well-founded. This helps explain his response to attempts by the rehabilitation provider to pursue the job seeking program but not his reluctance at hearing to acknowledge that he had not attended all of the appointments notified.
92 The last mentioned finding is not intended to suggest that the plaintiff had not, on the evidence taken as a whole, discharged the onus of proving an inability to be retrained or rehabilitated to undertake suitable employment that would result in him earning more than the without injury earnings figure.
93 In a further report dated 14 August 2015 Dr Andrianakis clearly indicated a poor prognosis in respect to the plaintiff’s work capacity by reporting: “he has a severe permanent disability in his left (dominant) hand and has no capacity for pre injury work duties or alternative duties.”[18]
[18] PCB 38
94 Dr Blombery’s report dated 30 March 2015 tells us that when he re-examined the plaintiff on 16 March 2015 the plaintiff had reported no improvement in the condition of his hand. He complained of constant pain extending from the fingertips towards the shoulder, sleep disturbance due to pain, hypersensitivity to cold, excessive sweating of the hand and weakness.
95 Dr Blombery considered the prognosis for recovery was poor and predicted no significant change in the level of disability in the foreseeable future or change in the treatment regime for chronic pain.
96 Whilst Dr Blombery considered the plaintiff unfit for his pre-injury employment he did not exclude the possibility that, with retraining, the plaintiff could return to alternative part-time duties where these only required the use of the plaintiff’s right hand. In other words, Dr Blombery saw no capacity for any employment involving duties which contemplated use of both hands or for full-time employment.
97 I have already mentioned the physiotherapist’s evidence. Whilst in August 2015 Ms Pennas appeared confident that, with ongoing treatment, the plaintiff could improve strength and reduce hypersensitivity in his left hand, she was not able to predict the extent of this. As to the plaintiff’s capacity for work, Ms Pennas said:[19]
I don’t believe at this stage he is capable of returning to his pre employment duties. He may be physically able to commence some light or alternative work duties. I would recommend duties that don’t involve repetitive hand/finger movements or work that is reliant on gripping or lifting (sic).
(i) Medico-legal assessment of capacity on behalf of the plaintiff
[19] PCB 41-42
98 When on 6 October 2014 Mr Mangos reviewed the plaintiff, he was met with similar complaints of chronic pain in the left hand in association with “heavy use”; loss of strength necessitating the use of the plaintiff’s right hand; difficulty with gripping, more so with pincer actions and hypersensitivity.[20]
[20] PCB 60
99 Mr Mangos concluded the plaintiff had been left with a definite functional disability, which severely interfered with his pre-injury employment and life as a keen musician.
100 Whilst Mr Mangos’ evidence indicated permanent incapacity for the plaintiff’s pre-injury employment, he, nonetheless, saw scope for undertaking alternative employment. Mr Mangos said:[21]
There is no reason why this man cannot perform alternate suitable employment avoiding heavy work with the left hand which is hypersensitive. Work such as regular gripping, twisting, pulling and pushing. Physical work of all kinds should be avoided and I think he should attempt to train in other fields. He appears to be reasonably intelligent. I see no reason why he could not be retrained in some form of computer work or organising work with logistics and security (sic).
[21] PCB 61
101 I propose to deal with the question of suitable employment separately. However, it is appropriate to note at this juncture that, without more, I could not be satisfied that Mr Mangos had been qualified to express an opinion about the suitability of the particular occupations to which his report generally referred. Ultimately, I gave greater weight to Dr Slesenger’s opinion concerning suitable employment options because his evidence established he was qualified to provide an opinion on occupations in which the plaintiff could reliably work and explained why, even with retraining, particular occupations would be unsuitable.
102 Dr Slesenger provided a detailed report dated 28 January 2015 following assessment of the plaintiff on 26 November 2014.
103 In response to specific questions Dr Slesenger relevantly reported as follows:
· the manual handling requirements both with regard to loading and unloading trucks and driving requirements precluded a return to the plaintiff’s pre-injury duties;
· the plaintiff had a theoretical capacity to perform alternative duties with his right (non-dominant) hand on the proviso that he not push/pull/carry/lift more than three kilograms; he not use his left hand; he avoid repetitive shoulder, elbow or wrist work and he restrict his hours to 4 hours per day on three non-consecutive days per week.
104 Having read the balance of the report, in my view the meaning of the doctor’s statement concerning the plaintiff’s capacity to perform alternative duties with his right hand was plain. After reviewing Dr Davidson’s comments on the plaintiff’s capacity Dr Slesenger stated as follows:[22]
[22] PCB 71
Dr Davison advises that Mr Techane can use his left hand as tolerated. In my opinion, Mr Techane has no meaningful capacity to use his left hand and in reality would be performing unilateral duties only. I would counsel against unrestricted use of the right (non-dominant) hand, as it is likely that Mr Techane would overuse the right hand to compensate for his incapacity on the left.
I agree with Dr Davison’s restrictions to avoid exposure to cold or abnormal atmospheric conditions. I would advise that all activity with the left hand should be avoided, rather than restricting his capacity to perform repetitive work.
I would also add weight lifting restriction as identified above.
105 In summary, the treating and medico-legal evidence submitted on behalf of the plaintiff, particularly Dr Slesenger’s evidence indicated, firstly, likely permanent restrictions on the use of the plaintiff’s dominant left hand in any alternative employment; secondly, little or no meaningful capacity for use of the left upper limb in alternative employment; and, lastly, likely significant restrictions on the safe use of the right upper limb in any alternative employment.
(ii) Medico-legal assessment of capacity on behalf of the defendant
106 I gave little weight to the report dated 16 May 2013 from Mr Buntine. In this report he emphasised the role of non-organic factors in the plaintiff’s presentation and concluded the plaintiff’s physical capacity for work was essentially unrestricted (“I do not believe that work of any type would further injure his hand”[23]).
[23] DCB 21
107 Firstly, Mr Buntine’s report was made after a single assessment more than two years prior to the hearing. Secondly, his opinion on the plaintiff’s physical capacity for alternative employment was against the weight of the evidence as a whole. Lastly, accepting for the moment that Mr Buntine had not reported clinical evidence of autonomic disturbance, the plaintiff’s evidence and the clinical findings of other specialists, particularly the treating specialist, Dr Blombery, indicated to the contrary. As earlier mentioned, between late 2012 and the date of hearing, other doctors found evidence of autonomic disturbance. Some doctors had also reported objective evidence of disuse of the dominant left upper limb. The latter finding pointed to lack of use due to pain and/or functional deficits.
108 Two occupational physicians assessed the plaintiff on behalf of the defendant, Dr Davison and Dr Brown. I have already mentioned in passing Dr Davison’s assessments in February 2014 and March 2015.
109 Dr Davison’s initial clinical findings in February 2014 suggested to him that the plaintiff had developed chronic regional pain syndrome subsequent to physical injury.
110 On re-examination in March 2015, the plaintiff reported his condition was largely unchanged. His condition was, he said, unpredictable; pain affected the hand and forearm up to the level of the elbow; he described agonising and shooting pain aggravated by exposure to cold temperatures and by use of his hand; he reported persistent weakness in the hand and an inability to undertake a range of fine-motor activities such as tying shoelaces or doing up buttons.
111 Apparently, on this occasion, clinical examination revealed measurable evidence of disuse of the left upper limb and evidence of generalised weakness of the limb; impaired grip strength, impaired fist making and impaired functioning at the distal interphalangeal joint of the thumb without there being clinical evidence of chronic regional pain syndrome type 1.
112 Dr Davison offered a guarded prognosis. He envisaged ongoing treatment with analgesia in association with permanent impairment of the plaintiff’s dominant left upper limb. In short, Dr Davidson appeared to accept the likely continuance of a pain syndrome in part characterised by hypersensitivity.
113 Subject to one important rider, Dr Davison assessed a physical capacity to perform a range of employment options described in vocational assessment report dated 17 July 2014 prepared by a psychologist and an occupational therapist working with Nabenet.
114 Dr Davidson’s report had indicated a capacity for suitable employment subject to the following physical restrictions:[24]
[24] DCB 42
i. Unrestricted use of the right hand.
ii. Use of the left hand as tolerated.
iii. Avoid forceful and/or repetitive gripping, pushing, pulling, lifting or carrying a with the left hand.
iv. Avoid exposure to cold or abnormal atmospheric conditions.
115 I will discuss whether the employment nominated in the vocational assessment report constituted suitable employment for the purposes of the Act shortly. Two points need to be made at this juncture. The first is, the plaintiff submitted, as it turned out correctly, the rider that the employment described in the vocational assessment report should comply with the physical restrictions noted in Dr Davison’s earlier report was important because the Nabenet report had not discussed whether the job options identified complied with these restrictions. The second is, I was not persuaded the plaintiff was, as Dr Davison said, capable of unrestricted use of the right hand in alternative employment. I found Dr Slesenger’s caution against the use of the plaintiff’s right upper limb in an unrestricted fashion and his reasoning process both logical and persuasive.
116 The last doctor to comment on the plaintiff’s physical capacity for employment was Dr Brown. He assessed the plaintiff on 27 March 2013 and again on 29 June 2015.
117 In March 2013, Dr Brown, considered the plaintiff fit for full-time duties not involving heavy lifting or fine dextrous movements with the left hand.
118 When re-examined in June 2015, among other things, the plaintiff reported ongoing pain radiating to the elbow worsened by cold weather; an ability to sign his name (“he said he had no reason to write but can sign his name”[25]); an extremely poor grip strength; an ability to drive; an inability to carry shopping with his left hand and an inability to dress without assistance although the plaintiff said he used his right hand to manage zips and buttons.
[25] DCB 13
119 As earlier mentioned, one factor that distinguished both Mr Buntine and Dr Brown’s assessments from those of other doctors was that they had not reported clinical evidence of autonomic disturbance. This difference probably explains, at least to some extent, the defendant’s doctors’ focus on what they perceived to be the likely role of non-organic factors in producing, for example, a significantly reduced grip strength.
120 In June 2015, Dr Brown again reported having found no clinical evidence of muscle wasting in the left upper limb. His report, however, provided no clue as to whether his clinical assessment had involved visual inspection or actual measurement of the musculature of the left upper limb. On this issue I have preferred the evidence of Dr Slesenger and Dr Davison, each of whom reported the discrepancies in measurements they obtained for the right and left upper limbs in November 2014 and March 2015 respectively.
121 Essentially, Dr Brown’s opinion in June 2015 was unchanged. Whilst acknowledging the presence of some impairment of range of movement affecting the thumb, Dr Brown had not considered this a significant functional incapacity for many jobs where the plaintiff could avoid very heavy lifting and fine dextrous movements involving the left hand. He approved of the jobs listed in the Nabenet vocational assessment report dated 17 July 2014 apparently because none of these jobs involved heavy manual tasks or fine dextrous movement of the fingers and thumb.
122 Notwithstanding his area of expertise, Dr Brown’s evidence, particularly his approval of the positions listed in the most recent vocational report was not as helpful as it might otherwise have been. Firstly, there was a clear conflict between the diagnosis and evidence of capacity of Dr Brown and the other two occupational physicians. Dr Slesenger and Dr Davison have accepted the likely presence of a chronic pain syndrome and, as my discussion of the medical evidence has so far shown, most doctors have found permanent impairment due to both functional deficits and a likely pain syndrome substantially mediated by organic factors. Secondly, neither of Dr Brown’s reports contained analysis of the tasks required by reference to the plaintiff’s physical capacities for any of the positions he generally approved.
Suitable employment in accordance with the Act
123 The assessment of the plaintiff’s physical capacity has indicated that he is now likely restricted to occupations where he is not required to use his dominant left hand and, even with retraining to improve the functionality of his right hand, where he is able to avoid overuse of the right upper limb.
124 The plaintiff’s pre-injury employment, education, skills and work experience have generally equipped him for occupations involving driving, manual handling of heavy loads and exploitation of his training and talent as a musician.
125 It is unnecessary to repeat the range of restrictions to which the doctors reports referred. I have accepted that both chronic pain and functional deficits affecting the plaintiff’s grip strength and dexterity and hypersensitivity to cold environments likely restrict the plaintiff’s ability to retrain for or engage in a range of occupations.
126 The Nabenet vocational assessment dated 12 February 2013 in part relied on medical evidence obtained by the insurer on 19 April 2012, before the plaintiff underwent additional procedures in 2012 and before he had commenced treatment of nerve pain. Dr Andrianakis’ certification of the plaintiff as unfit for any duties appears to have been the only other medical evidence available to the assessor.
127 On that occasion, the assessor identified as suitable employment options working as a Retail Sales Assistant, a Sales Representative, a Delivery/Courier Driver (light) or as an Enquiry Clerk/Customer Service Officer.
128 In a letter dated 7 March 2014, Dr Davison advised all of these options were suitable for the plaintiff: “subject to the compliance of all the physical restrictions outlined in my response to question 5 on page 5 of my report. Mr Techane would not be able to undertake handwriting activity but could operate a computer using the non-dominant right upper limb in a self-paced manner. His reduced capacities when operating a computer, however, would probably restrict his ability to undertake employment option number four.”[26]
[26] DCB 45
129 Dr Davison’s observation in the same report that the plaintiff was still able to drive a manually-geared vehicle may have been an accurate statement when made. However, given Dr Davidson’s observations in his earlier report that the plaintiff’s practice of driving his manually-geared vehicle one-handed was inappropriate from a road safety perspective, I was surprised by the statement made in the later report and by the indication that positions involving delivery/or courier work represented suitable employment.
130 In my view, any suggestion that the plaintiff could safely engage in an occupation which required him to drive a vehicle of any sort or contemplated driving himself to and from work by car, was untenable. Furthermore, I was surprised by the suggestion that employment requiring computer skills, even where the plaintiff could be trained to use a computer with one hand could represent suitable employment. Dr Davison’s final statement appears to concede as much.
131 The sales positions described by the vocational assessor involved tasks such as writing and/or lifting or stacking goods. The medical evidence suggests that the plaintiff would not be able to reliably perform employment involving these tasks on a full-time basis.
132 The most recent vocational assessment on 7 July 2014 relied on a range of medical reports submitted to March 2014, including reports from Mr Thomas, Ms Campbell-Smith, Mr Mangos, Dr Brown, Dr Andrianakis, Dr Blombery and Dr Davison.
133 Relevantly, when preparing the report the assessors relied on the restrictions recommended by Dr Davidson in the report dated 10 February 2014 and on Dr Davidson’s approval on 4 March 2014 of the first three positions mentioned in the earlier vocational assessment.
134 As stated in the vocational assessment report, the assessors identified employment options which they said took into account the plaintiff’s driving skills and related to basic customer service occupations.[27]
[27] DCB 103
135 The positions recommended as suitable employment were: Meeter and Greeter, Melbourne Cheapest Cars; Car Park Attendant, Arts Centre Melbourne; Pharmacy Delivery Assistant; Fleet driver, Logical Staffing Solutions, Sales Consultant, Telstra and Store Concierge, Telstra.
136 In his report dated 24 March 2015, Dr Davison approved the positions recommended, again subject to compliance with the physical restrictions outlined in his earlier report. He did not undertake an analysis of the inherent job tasks involved in each position.
137 It is unnecessary to repeat my comments about the plaintiff’s physical capacity to return to any form of employment that either required him to drive himself to and from work or involved duties requiring him to drive a vehicle. As mentioned, in my view none of the three positions identified in the further vocational assessment involving driving a vehicle (Car Park Attendant, Pharmacy Delivery Assistant and Fleet Driver) represent suitable employment where, as in this case, this task could not be performed in a safe manner.
138 I have preferred Dr Slesenger’s evidence regarding the suitability of each position primarily because his report contains analysis of the inherent job tasks involved in each position as well as his reasons for rejecting each position as suitable employment.
139 As to the position as a Meeter and Greeter, Dr Slesenger explained:[28]
… Dr Davison advised that Mr Techane could not work in extreme climates. The job requirements require both indoor and outdoor work. The vocational assessment has advised that Mr Techane be provided with a pair of gloves. In my clinical experience, this is unlikely to avoid aggravating Mr Techane’s symptoms, given the length of the exposure to extremes of climate that would be required in this role. I am personally aware of the layout at Melbourne’s Cheapest Cars and have witnessed the length of time that employees are required to remain exposed to extremes of temperature. I am of the opinion that Mr Techane would not be able to perform these tasks. In addition, I note Mr Techane would be restricted in his capacity to travel to work each day.
[28] PCB 71
140 As to the sales consultant position, Dr Slesenger explained:[29]
Mr Techane would be required to demonstrate products. Given the complexities of modern technology handsets, I am of the opinion that Mr Techane would not be able to perform these tasks with one arm. I’m also mindful that he will be required to spend considerable amount of time entering data into a computer, which is likely to aggravate his left (dominant) hand symptoms. I am of the opinion he could not perform the inherent job tasks.
[29] PCB 71
141 The plaintiff was not cross-examined about the inherent requirements of a position as a Store Concierge. Dr Slesenger did not comment separately on this position. I nonetheless formed the view that the plaintiff was unlikely to reliably sustain employment in a full time position, the inherent requirements of which included recording the names of customers either by hand or with a computer tablet, the latter carried in either hand.
142 The plaintiff was cross-examined specifically with regard to the tasks involved in working as a Car Park Attendant, Pharmacy Delivery Assistant or Fleet Driver and Dr Slesenger’s report contained his reasons for rejecting these positions as unsuitable. In view of my earlier finding that any position involving driving a vehicle probably does not represent suitable employment, it has not been necessary to repeat their evidence regarding these positions.
143 At hearing, the plaintiff acknowledged an interest in teaching music. He said he could teach a person how to play an instrument yet had not applied for a job in teaching because, in his words: “I’m in pain and when – I don’t – I’m not 100 per cent, so it is – feel like I’m sort of going to be doing a half-job and – you know…”.[30]
[30] TN 71
144 I formed the view that, even if he were capable of retraining as a one-handed music teacher, the plaintiff was unlikely to reliably sustain full time, a position the inherent requirements of which probably included playing musical instruments with his left hand, writing and/or regular recourse to music software.
145 In his affidavit evidence, the plaintiff deposed he had been required to perform job seeking through Centrelink without having been able to identify any job that accommodated his physical limitations and pain. As earlier mentioned, at hearing the plaintiff has not applied for alternative employment since leaving Linfox in October 2012. He currently receives Centrelink benefits.
146 The plaintiff’s evidence at hearing was that, having been sent by Centrelink to Max Solutions, the current focus of this was on rehabilitation rather than job seeking. This involved appointments once or twice a week. In effected he denied job seeking: “We weren’t looking for a job, we were just going through that to get me back to – it’s like a rehabilitation kind of.”[31]
[31] TN 36.
147 My impression was that, this was an occasion on which the plaintiff had difficulty properly articulating his response, rather than as submitted, an issue of credit. My impression was that the plaintiff had difficulty distinguishing between the activity ‘rehabilitation’ and the activity ‘job seeking.’ All the plaintiff appeared to be saying was that he was being assisted with returning to work. This included vocational and job seeking advice as well as discussion of participation in a pain management program in the future.[32]
[32] TN 36.
148 These matters notwithstanding, the plaintiff’s evidence and, particularly, Dr Slesenger’s evidence, suggests that even with retraining the plaintiff was unlikely to improve his physical capacity to reliably work more than four hours per day on three non-consecutive days per week for the foreseeable future.
Conclusions
149 The plaintiff has satisfied me that he has a permanent loss of earning capacity productive of financial loss of 40% or more because any retained capacity (theoretical or otherwise) and/or his likely unreliability in performing suitable employment probably would not take him over the statutory threshold for the foreseeable future.
150 While I have accepted that at the comparatively young age of 35, the plaintiff’s disability would not preclude further occupational rehabilitation or retraining for alternative suitable employment, allowing for the evidence summarised above, the plaintiff satisfied me that for the foreseeable future, any rehabilitation or retraining was unlikely to improve his physical capacity or increase his reliability for any employment to which he may otherwise be suited in accordance with the definition contained in section 5 of the Act.
151 Accordingly, applying the test under the Act, by reason of likely permanent work-related impairment of the plaintiff’s left upper limb, he has established a loss of earning capacity of 40% or more which is likely to continue permanently and he has satisfied me that when judged by comparison with other cases in the range of possible impairments or loss of body functions, loss of earning capacity is fairly described as being at least very considerable.
152 I propose to make an order granting leave to the plaintiff to commence proceedings in respect of pain and suffering and loss of earning capacity damages for injury to his left upper limb arising out of or in the course of his employment with the employer on or about 20 October 2011.
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