Thompson v Fernbail
[2020] VMC 3
•8 APRIL 2020
IN THE MAGISTRATES’ COURT OF VICTORIA
AT LATROBE VALLEY
WORKCOVER DIVISION OF COURT
Case No. K10835118
| CRAIG THOMPSON | Plaintiff |
| v | |
| FERNBAIL PTY LTD | Defendant |
---
MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 26 FEBRUARY 2020 |
DATE OF DECISION: | 8 APRIL 2020 |
CASE MAY BE CITED AS: | THOMPSON v FERNBAIL |
MEDIUM NEUTRAL CITATION: | [2020] VMC003 |
---
CATCHWORDS – Workplace Injury Rehabilitation and Compensation Act 2013 -Termination of weekly payments of compensation on basis that worker has a ‘current work capacity’ or if ‘no current work capacity’ it is not likely to continue indefinitely.
---
APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Mr Horner | Slater & Gordon |
| For the Defendant | Ms Kusiak | Minter Ellison |
HIS HONOUR:
Mr Thompson is aged 35 years having been born on 25 January 1985 and was employed by the defendant as a timber grader and sustained injuries to his back on 1 May 2014 and a subsequent psychological condition arising out of or in the course of his employment. He lodged a WorkCover claim on 8 January 2015, for which liability was accepted. By way of a Notice dated 26 July 2018, the Agent sought to terminate his weekly payments of compensation as from 3 November 2018, on the grounds that he had a ‘current work capacity’ or if he had ‘no current work capacity’ it was not likely to last indefinitely.
Mr Thompson gave evidence that he completed year 9 schooling in New South Wales and was assessed as having difficulties with reading and writing. After leaving school he obtained employment as a labourer in a sawmill and then commenced employment with the defendant, situated in Bairnsdale, in September 2006 as a labourer. He progressed to be classified as a timber grader and also obtained his forklift driving licence. He told the court that in May 2014, he sustained injuries to his back as a result of lifting timber. He said that he initially took painkilling medication but was then taken by ambulance to the Bairnsdale hospital and underwent radiological investigation which indicated a lumbar disc injury for which he underwent surgery on 6 February 2015 performed by Mr Goldschlager, Neurosurgeon. He gave evidence that prior to undergoing surgery he experienced right leg pain but after that surgery he developed left leg pain.
Mr Thompson told the court that he returned to work part-time in April 2015, initially three hours per day three days per week on light duties performing console operating duties. He said that by September 2015 he was working full-time on modified duties and continued performing modified duties until his services were terminated by the employer on 23 June 2017. Mr Thompson gave evidence that he has not worked since that date and has been under the care of Dr Christelis, Pain Specialist and has undergone radiofrequency treatment. Mr Thompson also told the court that he is prescribed numerous forms of medication including Lyrica 300mg which he takes twice per day, Duloxetine 60mg twice per day, Naprosyn and Palexia 150mg twice per day, some of which cause drowsiness. Mr Thompson gave evidence that he feels depressed and drained and “struggles to be strong”. He told the court that the Agent has given approval to him to have a spinal cord stimulator implanted but Dr Christelis is currently reviewing the need for that procedure. Mr Thompson also told the court that he can only sit for a period of 45 minutes without experiencing an increase in pain, that he is able to stand for long periods but suffers increasing pain if he is required to bend or twist.
Mr Thompson gave evidence that the defendant is based in Bairnsdale where he used to live but approximately two years ago he moved to Maffra with his wife and two young daughters. He told the court that he is now separated from his wife and has sole custody of his daughters aged 5 and 3 respectively for whom he takes care, including their school and pre-school attendances.
Mr Thompson told the court that his pain level is 5/10 on a good day and 8/10 on a bad day. He said that everyday physical activity makes his pain worse and that he also suffers from sleep disturbance because of it. He told the court that CGU arranged for him to be assisted by ipar, an Occupational Rehabilitation Service, who arranged for him to complete a Responsible Service of Alcohol Course and Responsible Service of Gaming Course and he obtained the necessary Certificates in 2017. Mr Thompson said that subsequent to obtaining those certificates he applied for a job at the RSL, but his application was declined on the basis that the work would be too heavy for him. He also told the court that he completed An Introduction to Computers Course in 2018 over a two-month period. When questioned about his capacity for the suggested suitable employment as a Dump Truck and Line Haul driver, he said that he would not be able to perform that job as he does not have an endorsed licence. When asked about his capacity to work as a trade Sales Assistant or Customer Services Officer, he told the court that he has no experience in that type of work. Mr Thompson gave evidence that he has not looked for work as his job prospects are limited, there are not many jobs available in his area and he has two young children to care for.
During cross examination, Mr Thompson agreed that the Agent approved payment of the spinal cord stimulator in March 2019 and that he will proceed with the implant if it is recommended by his doctor. He also agreed that he performs all of the household duties including; cleaning, grocery shopping and cooking. He agreed that if he was offered a suitable job which did not finish until 5 PM he would be unable to accept that job because of his family responsibilities. He told the court that he has basic computer skills and has an interest in engraving wood. Mr Thompson said that he has an automatic car and that it would take him 90 minutes to drive from Maffra to Morwell and approximately 45 minutes from Maffra to Bairnsdale. He said that he experiences back stiffness in the morning and more recently constant back pain which is aggravated by any pushing or pulling movements. He said that he thought he would be able to perform work which involved packing bags of salad into boxes, greeting customers, answering telephone calls and, working as a parking meter inspector.
Medical and Vocational Evidence
A report from the Maffra Medical Group dated 9 October 2018 indicated that Mr Thompson suffers from chronic low back pain secondary to a previous L4-5 disc prolapse and radiculopathy, with past L4-5 laminectomy and microdiscectomy in February 2015. It was noted that he is being managed primarily by a pain management specialist, Dr Christelis.
In a report from Dr Young at the Maffra Medical Group dated 18 February 2020, Dr Young noted that Mr Thompson was awaiting a spinal cord stimulator implant and is currently receiving physiotherapy treatment and prescribed medication in the form of Duloxetine 60mg-twice per day, 300mg of Pregabalin-twice per day, 500mg of Naproxen-twice per day, 150mg of Tapentadol-twice per day and paracetamol. Dr Young also reported that Mr Thompson experiences severe acute exacerbations of lower back pain and is unable to care for his feet and lower legs without exacerbating his pain. Dr Young opined that Mr Thompson is not suitable for full-time or part-time employment and is unable to fulfil his domestic duties.
Mr Goldschlager, Neurosurgeon, provided a report dated 21 January 2015 and diagnosed that Mr Thompson suffers from severe L4-5 canal stenosis secondary to disc prolapse which was confirmed by an MRI scan dated 15 December 2014. He confirmed that he performed an L4/5 laminectomy and bilateral microdiscectomy on 6 February 2015. At review on 30 March 2016, he noted that Mr Thompson continued to complain of back pain and increasing right L5 radicular pain. Mr Goldschlager reported that a further MRI scan performed on 15 March 2016 suggested a generalised disc bulge at L4/5, narrowing the lateral recess bilaterally, worse on the right and abutting the traversing L5 nerve roots. Mr Goldschlager reported on 22 June 2017, that he had discussed with Mr Thompson the option of undergoing a laminectomy or fusion and recommended he undergo a facetectomy which would best decompress the L5 nerve root and then fusion but authority to proceed was denied by WorkCover on 29 July 2016 and Mr Thompson removed himself from the public waiting list on 6 September 2016. He noted that he last saw Mr Thompson on 30 March 2016. Mr Goldschlager reported that he had been subsequently notified that the Medical Panel were of the opinion that surgery was not indicated because of improvement in Mr Thompson’s condition and that he would be best managed with multidisciplinary pain management and weight loss. He also noted that a subsequent MRI scan dated 18 January 2017 demonstrated improvement with less compression of the L5 nerve root.
Mr Thompson tendered medical reports of Dr Christelis, Pain Specialist and Anaesthetist, dated 2 August 2017, 25 September 2017, 31 May 2018, 13 January 2019 and 22 July 2019. In his initial report, Dr Christelis noted that he first saw Mr Thompson on 18 May 2017 on referral from Dr Kaushik and presented with postsurgical neuropathic pain in the L5 distribution, preceding and following an L4-5 right-sided discectomy. At that time, Mr Thompson complained of neuropathic lower leg pain in the L5 distribution which was mild to moderate and neuropathic lower back pain. Dr Christelis recommended an increase in Lyrica and Duloxetine medication and that he should switch from Targin to Palexia. At that time he opined that Mr Thompson was precluded or restricted in relation to employment activities involving; bending, lifting, twisting, stooping, pushing, pulling or lifting; repetitive and/or prolonged use of the back; overhead activities; kneeling, squatting or crouching; prolonged sitting, walking or standing; walking up inclines or down declines; using steps or ladders; fine and manipulative use of the back; and, manual dexterity.
In September 2017, Dr Christelis wrote to the Agent requesting authority to trial an epidural injection (performed 16 March 2018) and in May 2018 he requested authority to perform radiofrequency of the cuneal nerve and lumbar plexus (performed 7 September 2018). In January 2019, he sought approval for a spinal cord stimulator, subject to Mr Thompson suitability following a psychological assessment, as other treatment had failed to provide any meaningful pain reduction or functional improvement. Dr Christelis anticipated that the implant would reduce Mr Thompson’s pain and then he would try to reduce Mr Thompson’s deconditioning and increase his physical capacity so as to aim for a return to work. In his final report dated 22 July 2019, he noted that the hydrodilation/epidural injection and radiofrequency did not improve Mr Thompson’s condition. He stated that WorkCover approved a spinal cord stimulation trial, but it is yet to be performed as Mr Thompson has not chosen to proceed with it. He stated that he last saw Mr Thompson in December 2018 and at that stage his condition was not stable.
Mr Thompson was assessed for medico-legal purposes by Mr J O’Brien, Orthopaedic Surgeon, and a report from him dated 15 July 2019 was tendered. On examination, Mr O’Brien noted that Mr Thompson demonstrates quite marked restriction of lumbar movements with some signs suggesting persistent nerve root irritation in addition to motor and sensory signs predominantly right-sided L5 nerve root dysfunction with some sensory deficit in the right S1 distribution. He diagnosed that Mr Thompson has chronic post-operative back and left leg pain with continuing evidence of right side L5 and S1 radiculopathy. In his opinion, the implant of a spinal cord stimulator is reasonable. He opined that Mr Thompson’s prognosis is poor and that he is incapacitated for his preinjury employment and is incapable of undertaking employment involving manual duties or suitable employment having regards to his employment background and clinical situation. Mr O’Brien is of the opinion that Mr Thompson’s incapacity is likely to be permanent and that he is unlikely to return to any form of gainful employment.
Dr J Rowe, Specialist Occupational Physician, assessed Mr Thompson on behalf of his lawyers on 30 July 2019 and a report from him was tendered. Dr Rowe is of the opinion that Mr Thompson’s condition has not stabilised and that he continues to suffer from back and leg pain. In his opinion, Mr Thompson may require further surgery in the form of a disc replacement at L4/5 or L5/S1 and should be referred for psychiatric assessment.
Mr Thompson tendered a medicolegal report from Dr J Gill, Consultant Psychiatrist, dated 24 October 2019. On the basis of his clinical assessment and the medical reports provided to him, he expressed an opinion that Mr Thompson has an adjustment disorder with anxiety and depressed mood which has developed secondary to his back injury and his chronic pain. Dr Gill does not consider his condition has stabilised and suggests that he would benefit from a formal pain management program where he would receive multidisciplinary input including assistance from a psychologist. Dr Gill is also of the opinion that if Mr Thompson proceeds with a spinal cord stimulator and it gives him significant benefit, he would expect from a psychiatric viewpoint, an improvement in his mood and anxiety.
The defendant tendered reports from Dr Barton, Consultant Occupational Physician, dated 27 April 2017 and 8 March 2018. At the time Dr Barton initially examined Mr Thompson he had returned to work on reduced hours and restricted duties. Dr Barton expressed an opinion that based on Mr Thompson’s reported response to surgery it appears to have been of no sustained benefit and he was getting worse. He was concerned that based on his examination of Mr Thompson there were several findings that suggested that he was developing a chronic pain type problem superimposed on his “failed” back surgery. Dr Barton expressed an opinion that Mr Thompson had a limited capacity for work and doubted that he would ever be able to return to normal work again or do more hours than he was currently performing. He also doubted that Mr Thompson would be able to secure any other employment in view of his limited skills. Following his second assessment of Mr Thompson on 7 March 2018, Dr Barton reported that Mr Thompson presented with some features he considered pointed towards a degree of functional overlay. He considered that the impediments of him returning to work were; the lack of a job to go to, the chronic pain problem, his illness belief and motivational factors. He did not consider that Mr Thompson was fit to return to pre-injury hours and duties but was of the opinion that he had the capacity to undertake suitable limited duties with bending and lifting restrictions and no lifting of weights of more than 5 kg. He therefore considered that Mr Thompson had a capacity for light work including the suitable employment options listed in the ipar reports dated 1 December 2017 and 15 February 2018 and also had the capacity to participate in NES or retraining courses.
Dr Shan, Consultant Psychiatrist, assessed Mr Thompson on behalf of the defendant’s lawyers on 1 July 2019. He also diagnosed that Mr Thompson suffers from an adjustment disorder with mixed depression and anxiety that is of mild proportions. He stated that Mr Thompson psychiatric symptoms are mild and difficult to distinguish from normal emotions for a person in his situation and that he is anxious about aggravating his condition should he return to work. Dr Shan stated that from a psychiatric viewpoint there would be no work restrictions and noted that he is taking antidepressant medication in the form of Duloxetine and receiving counselling from his general practitioner.
The defendant tendered numerous Job Seeking Services Reports from ipar between 28 July 2017 and 11 May 2018. The author identified a number of employment options including; bar attendant, gaming operator, console operator, sales assistant (trade counter sales), customer services officer and future suitable employment options as being; truck driver (line haul), dump truck operator and quality assurance (timber and hardware). In a report dated 28 September 2017, the author noted that Mr Thompson had been an active participant in the job seeking program and had contributed to the ongoing tailoring and development of his resume. It also noted that Mr Thompson had been encouraged to source identified suitable roles via newspapers, online, cold canvassing and networking methods. A report dated 31 October 2017, noted that Mr Thompson had obtained Certificates for the Responsible Service of Alcohol and Responsible Service of Gaming. In a report dated 1 December 2017, it was noted that Mr Thompson had attended all appointments however was lacking the skills and confidence to apply for advertised roles online. IPAR also noted that the labour market for the Gippsland region is poor, with a large number of candidates applying for a limited number of employment opportunities. Following a Return to Work Case Conference on 15 February 2018, attended by a representative from ipar, Mr Thompson and his general practitioner, Dr Fenner, it was reported that Dr Fenner endorsed the type of retail roles that Mr Thompson had recently applied for, noting that his restrictions from his assessment are still in place but he could safely perform the duties of employment in retail but would require flexibility of posture and avoid lifting and sitting/standing for long periods and monitoring of his pain symptoms closely while at work. In an email from ipar to the Agent dated 19 July 2018, it is reported that ipar conducted an online job search and found vacancies as a retail Customer Service Officer with Australia Post in Sale and a Watch Room Operator with Broadspectrum in East Sale. Apparently, Mr Thompson informed ipar that the Australia Post vacancy required constant lifting of mail bags of up to 16 kg which was beyond his certified capacity and requested that ipar assist him with completing the application for a job as a Watch Room Operator. Mr Thompson also informed ipar that he had completed his computer skills retraining and received a Certificate of Completion. Mr Thompson also informed ipar that he had been cold canvassing local cafés and restaurants for employment but was unsuccessful.
The defendant tendered a comprehensive Vocational Assessment Report from Recovre authored by Janette Ash, Occupational Therapist/Injury Management Consultant, dated 23 November 2019. In preparing her report, she was provided with reports of Dr Bloom dated 12 August 2019, Dr Shan dated 1 July 2019, a Job Seeking Services report dated 28 July 2017, a Joint RTW Job Seeking Plan dated 28 September 2017 and a Retraining Outcomes Report dated 31 October 2017. On the basis of the information provided to her and the medical opinions of Dr Bloom and Dr Shan, Ms Ash identified the following occupations as being suitable;
• bar attendant
• gaming worker
• console operator
• trade sales assistant
• customer service
• truck driver; dump truck and line haul (upon licensing)
Ms Ash provided details of four worksite assessments of actual job roles that existed within the open labour market, those being; a packer with a food processing plant situated in Bairnsdale; a sales assistant/order clerk with a retail chain situated in Bairnsdale and Sale; a meter reader with a utilities meter reading service based in Melbourne and a traffic controller with a traffic management business based in Melbourne. The specific roles and tasks of each of these jobs was detailed in her report as was the availability of these jobs in the labour market.
Dr Bloom, Occupational and Environment Physician, examined Mr Thompson on behalf of the defendant’s lawyers on 12 August 2019 and reports from him dated 12 August 2019 and 3 December 2019 were tendered. He was provided with numerous medical reports (some of which were not tendered), x-ray reports and rehabilitation reports. In his initial report dated 12 August 2019, he noted that Mr Thompson was consuming a considerable amount of medication as well as cannabis to relieve his pain. He obtained a history from Mr Thompson that he believed surgery had improved his pain and symptoms by approximately 70%. However, Mr Thompson told him that he still experiences intermittent low back ache the intensity of which he estimated at 4/10. Mr Thompson also told him that he experiences constant sensations down his right leg to the sole of his right foot and that he has become anxious, has low mood and feels quite frustrated. Dr Bloom noted that the loss of his job opportunity represents a major blow to him, particularly in view of the fact that he has only worked in physically demanding labouring type occupations and now has little or no realistic job opportunity in the area in which he lives. Dr Bloom noted that Mr Thompson had been providing certificates of capacity for suitable restricted duties on a part-time basis. Dr Bloom diagnosed that Mr Thompson’s presentation could be described as a chronic pain state/failed back surgery syndrome and that currently there was an emphasis on pain management rather than functional restoration. He agreed with an opinion apparently expressed by Dr Wood in a report dated 29 June 2016 (not tendered), that Mr Thompson would benefit far more from a functional restoration/strengthening exercise program than conventional pain management.
Dr Bloom stated that Mr Thompson will never be considered suited to heavy physical demanding labouring type occupations because of the degenerative and congenital changes in his low back and also due to his chronic back pain with referred symptoms that has been treated surgically with residual radiculopathy. Dr Bloom did not consider him to be totally disabled and stated that he should be encouraged to be as active and mobile as possible within reasonable limits. He considered that Mr Thompson does have a capacity for suitable work provided that he functions and works within the following conditions and constraints; avoiding prolonged static posture; avoid repetitive bending and twisting whilst under load; limit repetitive manual handling to loads of about 8 kg, with occasional excursion to approximately 12 kg, provided that all manual handling occurs between mid-thigh and chest height and with elbows relatively close to his sides. He also suggested that pulling and pushing should be confined to the exertion of forces no greater than about 12 kg and he should avoid ladders. Dr Bloom also noted that because Mr Thompson has been out of the workforce for a prolonged period of time and because his levels of tolerance are relatively low, a graduated reintroduction to suitable work duties would be preferable, commencing four hours per day three days per week with an incremental increase in hours towards full-time over a three month period.
Dr Bloom noted that Mr Thompson has the following physical tolerances; sitting up to 60 minutes at a time; standing limited to 60 minutes; walking for at least 30 minutes; driving limited to 45 to 60 minutes; an ability to climb/descend stairs/inclines with support of a hand rail; repetitive bending or bending under load should be discouraged; lifting up to 8 kg with occasional excursions of up to 12 kg; and, avoidance of walking on uneven ground. When assessing the initial suggested suitable employment options in the Job Seeking Services Report dated 28 July 2017, Dr Bloom offered the following opinions: Bar Attendant - as the activities vary from light to moderate and sometimes physically demanding, some but not all bar work duties are within his capacity; Gaming Worker - the duties are variable and some aspects are within his capacity; Console Operator - the requirement to replenish stock can involve heavy manual handling and working in awkward postures and positions which might prove challenging; Sales Assistant - the physical demands vary quite considerably and its suitability would be dependent on the particular job; Customer Service Assistant - this is generally a sedentary role and the physical demands would be within his capacity; Truck Driver (linehaul) - this role involves prolonged periods of sitting whilst driving, manual handling of tarpaulins and ropes and chains which would be unsuitable; Dump Truck Operator - dump trucks often operate on very uneven surfaces and on occasions the operators need to use a shovel to help empty the truck tray and would therefore be unsuitable; and, Quality Assurance (Timber & Hardware) - as the report indicates the physical demands are light and require standing and walking and therefore it would be within his capacity.
Dr Bloom opined that Mr Thompson would be suited to light work but ideally not sedentary. He noted that consideration had to be given to the fact that Mr Thompson has very limited formal education, limited level of literacy and numeracy and a lack of occupational experience in anything other than physically demanding occupations. He expressed the opinion that it is unlikely that Mr Thompson would have the capacity to retrain into anything but low skilled occupations. He suggested the type of occupations that may be suitable include; traffic management, light process work and meter reading. Dr Bloom also noted that Mr Thompson has a severe paucity of transferable skills, a low level of literacy and numeracy and lives in a rural area where job opportunities are limited. On that basis, he was of the opinion that there are considerable barriers to rehabilitation to suitable paid employment. In his opinion, Mr Thompson’s functional work capacity would be improved if he were to enthusiastically engage in a comprehensive functional restoration program if this were coupled to a suitable return to work.
Dr Bloom provided a supplementary report dated 3 December 2019 following receipt of the report from Ms Ash (Recovre) dated 23 November 2019 where he was asked to specifically consider four identified suitable employment options being; Packer, Customer Service/Ordering Clerk, Meter Reader and Traffic Controller. Dr Bloom expressed the following opinions in relation to each of the suggested suitable employments as follows:
Packer: he noted that the job was identified following an actual worksite assessment on 16 September 2019 at a food processing plant located in Bairnsdale. He noted it is a facility that processes and pack salads into bags for sales in supermarkets and the role involves a packing process and palletising and whilst packing, constant standing is required with the worker working at a rotating conveyor, receiving salad bags, performing quality control checks and placing them into boxes. He also noted the palletisers receive packed and sealed boxes and replace them onto pallets and once loaded, the workers then move the pallet to the dispatch area and complete administrative paperwork. He noted that the pallets are moved using a manual pallet jack that requires a push/pull force of approximately 10 kg; that the salad boxes weigh between 1.2 and 3 kg; the manual handling involved is up to 7 kg; and loading of boxes is at at 700 mm height, approximately once per 10 minutes on average. Finally, Dr Bloom noted that there was no requirement for significant bending and twisting, particularly under load and the changes in posture are frequent. In his opinion, Mr Thompson is fit to undertake such duties given a period of adjustment and work hardening.
Customer Service/Ordering Clerk: he noted that this job was identified following a worksite assessment on 1 April 2019 at a homewares supply retail chain. He noted that the physical demands are essentially sedentary/semi-sedentary with some sitting required but not exceeding 15 to 20 minutes at a time. He noted that heavy manual handling is not involved, and the lifting of brochures and binders does not exceed 2 to 3 kg. Dr Bloom expressed the opinion that Mr Thompson has the capacity to undertake these duties without significant risk of further injury or aggravation.
Meter Reader: he noted this job was identified in a worksite assessment on 6 December 2017 and confirmed on 21 February 2019. He also noted that tasks include travelling to and from sites; driving variable distances and using a meter reader weighing less than 1.5 kg. He noted that there is a significant amount of walking which can cover a period of six hours and 15 km per day. Dr Bloom expressed the opinion that from a purely physical perspective, Mr Thompson would not be placed at risk of further injury or aggravation if he undertook these duties with the only limiting factor being his level of tolerance for the walking required but in his opinion this would be therapeutic for him.
Traffic Controller: this position was identified by a worksite assessment on 23 May 2019 and the tasks involve set up and pack up of traffic control zones and stop/slow baton operations. Dr Bloom noted that weights involved are less than 6 kg and the role involves significant standing and walking during set up and pack up periods and driving to and from sites. In his opinion, Mr Thompson has the capacity to undertake this job and would not be placed at significant risk of further injury or aggravation.
Dr Bloom concluded that Mr Thompson has the capacity to undertake each of the jobs identified as the physical demands are light to moderate and he would not be placed at significant risk of further injury or aggravation of his low back condition and a return to any of these jobs would be beneficial to him.
Mr Thompson tendered reports from Paul Hartley, Senior Occupational Rehabilitation Consultant at Vocational Directions dated 12 December 2019 and 13 January 2020. Mr Hartley reported that he assessed Mr Thompson on 25 November 2019 and was provided with and reviewed all relevant medical reports, Job Seeking Reports and the report of Ms Ash (Recovre) dated 23 November 2019 together with the supplementary report of Dr Bloom dated 3 December 2019 which necessitated him providing a supplementary report dated 13 January 2020. Mr Hartley recorded that Mr Thompson left school after unsuccessfully completing year 9, that he did not study computers, was a poor student with limited learning outcomes and had reading and writing problems due to dyslexia. He noted that Mr Thompson has never undertaken any form of vocational study and although he obtained Certificates for the Responsible Service of Alcohol and Responsible Service of Gaming, he has not utilised the Certificates and as they have a three-year validity period he will need to complete an online refresher course by the end of this year for them to be valid. Mr Hartley also noted that Mr Thompson has poor learning, literacy and numeracy skills and has only basic computer/technological skills. Mr Hartley also noted that Mr Thompson has no capacity for manual duties, or his preinjury employment based on the medical opinions obtained. He expressed the opinion that Mr Thompson’s poor level of overall education and foundation skills are considerable barriers to him obtaining suitable employment and even undertaking online job seeking. In his opinion, Mr Thompson’s highly restricted employment profile as an unskilled timber mill worker over eight years prior to his injury where he performed heavy, manual duties based on observational learning combined with his poor foundation skills provide him with a poor baseline for further study towards less physically demanding jobs or the attainment of such jobs. In Mr Hartley’s opinion, Mr Thompson will require enhancement of his foundation skills (learning skills, literacy, numeracy and digital literacy) but any form of retraining will be difficult for him until the causes of his limited educational outcomes are assessed by a relevant professional and strategies put into place to rectify these deficits. He noted that whilst being engaged with occupational rehabilitation, he has received minimal retraining.
Mr Hartley questioned the availability of suitable employment as set as set out in the ipar labour market analysis dated 20 April 2018. In his opinion, residing in Maffra is not only a barrier to employment but a barrier for Mr Thompson in receiving effective treatment in the form of a multidisciplinary pain management and rehabilitation program and possibly a barrier to him being able to access appropriate educational assessments and remediation of his learning deficits. Mr Hartley also considered the further barriers are; his lack of a diverse work history; poor foundation and vocational skills and lack of any customer service skills or experience; long-term marijuana use for pain management; poor suitability for vocational retraining due to his poor literacy and numeracy and lack of computer skills; living in a regional area where there is high unemployment; his lack of occupational rehabilitation, and his inability to provide a recent relevant employment reference.
In relation to the suggested suitable employments referred to in the ipar report and supported by Dr Bloom, he made the following comments;
Packer/Light Process work: Mr Hartley noted that Dr Bloom recommended a specific worksite assessment to gauge Mr Thompson suitability for such work and stated that Mr Thompson has no experience in light manufacturing and his skills base is in the practical domain not in mechanical, technical or technological fields of work which is most often required for light product assembly roles. He stated that to the best of his knowledge there is no light mechanical or electrical/electronic assembly industry in Sale, Maffra or Bairnsdale. Based on his research, he stated that so-called “light processing” is confined to salad and vegetable packing with two main employers in Bairnsdale and Maffra. He stated that these specific employers require experience in the food industry and require prospective employees to undertake a pre-employment medical and are loath to take on workers with a pre-existing injury and specifically will not take on workers who require restricted duties or have ongoing injury symptoms or a workers’ compensation history. Mr Hartley expressed the opinion that Mr Thompson would be unable to meet the physical requirements of these employments and would not meet the criteria for having experience and therefore concluded that he would not be considered a realistically saleable/marketable employment candidate.
Customer Service/Ordering Clerk: Mr Hartley noted that Dr Bloom considered this occupation to be sedentary with the ability to change posture frequently and therefore physically suitable for Mr Thompson. However, Mr Hartley did not believe that he would be considered a viable employment candidate for this skill level 4 clerical role as it requires good English and digital literacy as well as sound keyboarding skills. He also noted that for those lacking the relevant skills and experience, vocational retraining would be required such as a Certificate III or IV in Business or Business Administration although in some cases a Certificate III in Customer Contact may be sufficient. In his opinion, Mr Thompson lacks the education to undertake this type of study and notwithstanding his completion of an introductory computer course, this alone would not make him employable in this role. He concluded that Mr Thompson does not meet the inherent requirements of this particular occupation and therefore he would not be realistically saleable/marketable for the occupation.
Meter Reader: Mr Hartley noted that there were no such advertisements for this type of job across Gippsland although by reference to advertisements in Melbourne, employers advise that the challenges of the role include it being “physically demanding-extensive walking and bending and squatting; fast paced environment; working in most weather conditions” and required applicants to have a “good fitness level and ability to walk long distances for extended hours; prior meter reading experience is not required, however experience in a similar physically demanding role is ideal with daily travel of up to, or more than 45 minutes each way”. Other responsibilities included; “accurately reading allocated meters in a timely, efficient and safe manner; understand and ensure efficiency targets are met; and, upload-download route information to-from handheld computer”. Mr Hartley also noted that the inherent requirements of the job would require repetitive bending and after taking all of these matters into consideration, he considered that Mr Thompson would be unable to fulfil the inherent requirements of this job in a safe, consistent and reliable manner. Accordingly, he does not believe that Mr Thompson’s residual capacity is realistically saleable or marketable for this job.
Traffic Controller: In Mr Hartley’s opinion, (whilst acknowledging Dr Bloom has stated that he has assisted many workers in this occupation), the inherent requirements of this role involve traffic controllers repetitively lifting signs, which can weigh up to 15 kg or more. He also noted that Mr Thompson would require training and any prospective employment would first require an individual worksite assessment. He also noted that an inherent requirement of the job was consistent concentration and alertness to ensure road safety and his complaints of poor sleep, chronic pain, opioid analgesia and marijuana use would make him a risky employee. Accordingly, he does not believe that Mr Thompson could meet the inherent requirements of the occupation and that his labour would not be realistically saleable/marketable for this job.
Conclusion
I found Mr Thompson to be a credible and reliable witness. He has sustained a significant spinal injury for which he has undergone surgery and requires a significant amount of ongoing medication for pain relief, which causes drowsiness. It has been recommended that he have a spinal cord stimulator and that he participates in a formal pain management program (Dr Gill) or a functional restoration program/strengthening exercise program (Dr Bloom).
Of considerable importance is the fact that Mr Thompson has a limited formal education and a limited level of numeracy and literacy. Furthermore, he has only ever performed labouring type duties, has limited work experience and his personal circumstances are such (living in Maffra and being the sole carer of two young children) that it will make it very difficult for him to engage in the programs recommended by Dr Gill and Dr Bloom or to obtain the necessary qualifications as suggested by Mr Hartley.
I do not consider the suggested suitable employments as a Packer, Customer Service/Ordering Clerk, Meter Reader or Traffic Controller are realistic having regards to the matters already referred to and the opinion expressed by Mr Hartley in relation to each of these occupations. When considering whether Mr Thompson has a ‘current work capacity’ or ‘no current work capacity’ which is likely to last indefinitely, it is not simply a question of whether Mr Thompson can or cannot perform the duties and hours of the suggested suitable employments. The court must consider whether Mr Thompson, as a consequence of his compensable injury, is unable to regain his former employment and unable to obtain any other suitable employment.[1] I find that his capacity to obtain the identified ‘suitable employment’ is negligible. On the basis of his limited education, limited experience, lack of qualifications, medical restrictions and place of residence, his ‘attractiveness to a prospective employer’ is minimal.
[1] See Richter v Driscoll & Ors [2016] VSCA 142 and Lang v Spendless Shoes P/L & Ors [2019] VSC 376.
Hopefully, if Mr Thompson proceeds with a spinal cord stimulator implant as recommended, his pain level will improve which will then allow him to undergo appropriate treatment leading to an increase in his capacity to return to work in suitable employment as suggested by Dr Christelis and after undergoing a pain management program as recommended by Dr Gill or a functional restoration program as recommended by Dr Bloom and completing the courses to enhance his foundation skills as suggested by Mr Hartley.
After considering the nature and extent of his physical and psychiatric conditions, his personal circumstances, his lack of education and training, his limited work experience, his place of residence and the recommended treatment and programs he should undertake, I find that Mr Thompson has ‘no current work capacity’ which is likely to last indefinitely.
Accordingly, he is entitled to weekly payments of compensation from 3 November 2018 to date and to continue in accordance with the provisions of the Act.
0
2
0