Tomass v Victorian WorkCover Authority
[2015] VCC 675
•26 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-06563
| DAVID TOMASS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 May 2015 | |
DATE OF JUDGMENT: | 26 May 2015 | |
CASE MAY BE CITED AS: | Tomass v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 675 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the cervical spine – pain and suffering and economic loss damages
Legislation Cited: Accident Compensation Act 1985 (as amended), s134AB
Cases Cited: Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr D Myers | IDP Lawyers |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering and economic loss consequences to him of an injury he sustained in the course of his employment with Rail Road Transport Pty Ltd and BJ Oliver Transports Pty Ltd (“the employer”).
2 In the proceeding, the plaintiff relies upon two affidavits sworn by him on 22 August 2013 and 5 May 2015 respectively. In addition, the plaintiff gave viva voce evidence in the application and was cross-examined. Otherwise, the parties rely upon medical reports and like material tendered by them.
3 In the application, the defendant concedes that the plaintiff has suffered an injury to his cervical spine, the consequences of which are such that they meet the definition of “serious injury” as employed by the Accident Compensation Act 1985 (as amended) (“the Act”).
4 The matter for my determination in these circumstances involves the issue as to whether the economic loss consequences arising by reason of the plaintiff’s injury meet the statutory threshold as established by the Act.
5 Having regard to the concession made by the defendant as to the fact that the injury to the plaintiff’s cervical spine is appropriately described as constituting a serious injury, much of the evidence contained in the plaintiff’s two affidavits was not the subject of challenge.
6 Whilst the content of the plaintiff’s two affidavits is a matter of record, as is the plaintiff’s viva voce evidence in the application, and no real point is served in setting out in specific detail that material, it is appropriate that I record the following matters in order to give context to my findings in this matter:
(i)In paragraph 33 of his first affidavit, the plaintiff described his current condition in the following terms:
“All movements in my neck are restricted and I experience pain in my neck towards the limits of the movement that I have or if I move my neck too often. This pain is at the sides and the back of my neck. The pain can spread into my shoulders. The pain is worse in cold weather. I have a limited capacity for sitting. I can drive for a maximum of about 1 to 1½ hours and then I need to get out, stretch and move about. I can sit for about an hour, then the pain builds up and I have to move about. I can stand for about 1½ hours, but then the pain builds up and I have to move and stretch to reduce the pain.”
This evidence by the plaintiff was not challenged in the course of his cross-examination. Having regard to the fact that the injury suffered by the plaintiff involved significant trauma to his cervical spine, such that he underwent surgery in the form of a discectomy at the C3-4 level and a fusion at that level, and a discectomy at the C4-5 level, which was required to deal with a disc that was described as being very collapsed, and thereafter a fusion at that level, I am satisfied that the plaintiff’s evidence describes symptoms within the range of those which would be consistent with being occasioned by the trauma to the plaintiff’s cervical spine, to which I have referred.
(ii)Following his injury on 21 February 2012, the plaintiff returned to work in October 2012, at which time he underwent a graduated return to employment, his duties being rotating such that the total of his work hours were applied approximately equally between driving a forklift and undertaking light administrative duties.
(iii)Between the date of his return to work and 4 July 2013, the plaintiff had increased his hours of work to some 22 hours per week, during which he undertook the activities to which I have previously referred for eight hours a day each Monday and Wednesday and for six hours a day each Friday.
(iv)On 4 July 2013, the plaintiff’s employment was terminated by reason of an altercation which occurred between the plaintiff and a fellow worker, the nature of which is described by the plaintiff in a letter written to his employer at Defendant’s Court Book (“DCB”) 124.
(v)Since his dismissal, the plaintiff has applied for a number of part-time jobs, most of which involved aspects of significant physical activity in the form of either welding or forklift driving, but has not been successful in obtaining any employment.
(vi)The plaintiff has not undergone any retraining in order to develop skills which may be used by him in employment involving light physical work. The plaintiff’s education and work history relevantly involves his leaving school without completing Year 11 and having thereafter been engaged in manual labour as a welder, forklift driver or like employment.
(vii)The plaintiff gave evidence, about which no issue was taken and which I accept, that he has no real interest in operating a computer and has no skills in that area. He said that he was open, however, to receive training in the operation of a computer, that he had made an application to undergo such training, but that to date, the training had not eventuated.
(viii)In the course of his evidence, the plaintiff said:
·He had no computer skills and on occasions when he had accessed the computer, his ability to operate it had been frustrating for him by reason of his poor spelling skills. He said he was willing to do a computer course to improve his computer skills and had asked Dr Reid to make enquiries of his rehabilitation provider that they arrange for him to attend such a course.
·In the course of a typical day in order to manage his pain, he would use varying amounts of Panadeine Forte which he occasionally supplemented with Anaprox.
·Following his surgery, his shoulder and left arm pain had completely resolved, but he continued to experience neck pain but “I never complain about pain”.
·Upon returning to employment with the employer, he spent approximately 50 per cent of his time driving a forklift truck, namely, four hours in an eight-hour day, explaining:
“That four hours would be broken down in, you know, like I drive for a little while, when I felt like I needed a break I would go and do the con notes, finish with the con notes and get back on the forklift so it wasn’t sitting on it for four hours and driving.”
(sic)
·He wished to work full time and was hoping that an employer would invite him to:
“… have a go, and if they can see that I can do the job but I haven’t had that opportunity as yet. Everyone shutting the door before you even get your foot in there.”
7 My very strong impression of the plaintiff as he gave evidence was that he was a truthful witness who, without hesitation, made repeated concessions potentially against his interest, but did so because his approach to giving his evidence was to tell the truth.
8 In my view, no issue arises in this instance as to the truthfulness of the plaintiff or his reliability as a witness, and I accept the evidence which he gave, both in the course of the application and as set out in his affidavits.
9 In particular, I am satisfied that the plaintiff continues to suffer from symptoms of considerable significance in his cervical spine and that whilst those symptoms vary in intensity, they are such that he is required to employ significant, although varying, levels of prescription-strength pain management in the form of Panadeine Forte and Anaprox in management of his symptoms on a daily basis.
10 In the application it is the defendant’s position –
(i) that the plaintiff was, at the time he was dismissed by the employer by reason of matters unrelated to his injury, in the process of being rehabilitated to take up his pre-injury employment as a forklift driver and that with appropriate rehabilitation, work of that type may have represented suitable employment for the plaintiff; and further
(ii) that the plaintiff’s failure to undertake any retraining precludes him from establishing that he has suffered the requisite economic loss to entitle him to the relief he seeks in this application
11 I am satisfied for the reasons I will develop in the course of my judgment:
· That the work as a forklift driver, or for that matter as a welder, is beyond the plaintiff’s physical capacity given the condition of his cervical spine; and
· That the plaintiff’s perseverance in undertaking forklift duties with the employer speaks as to his stoicism and wish to rehabilitate himself and not to his capacity for activity;
· That notwithstanding the plaintiff’s failure to undertake any retraining, the effect of any such retraining would not have been to equip the plaintiff with the ability to be engaged in suitable employment in which he would earn a level of income which exceeds the statutory threshold applicable in this instance.
Does the Plaintiff retain the capacity to work as a forklift driver?
12 Whilst the plaintiff’s general practitioner had encouraged the plaintiff to return to his pre-accident duties with the employer, I am satisfied that the evidence establishes that the plaintiff had no real prospect of ever returning to full-time work as a forklift driver.
13 Although the plaintiff, at the time at which his employment was terminated with the employer, was in the course of establishing his tolerance for work as a forklift driver, the evidence establishes that, as at July 2013, he had demonstrated a capacity only to work for some 11 hours a week as a forklift driver, in circumstances in which his work process was structured so that his work duties were alternated so as to limit any continuous obligation upon the plaintiff to drive a forklift.
14 As to this issue and the plaintiff’s capacity for post-injury employment generally, the defendant points to the description by the plaintiff’s treating surgeon, Mr Wong, in December 2012, as to the recovery achieved by the plaintiff from the surgery he had undergone as being indicative of the plaintiff’s level of recovery and capacity for suitable employment.
15 Whilst Mr Wong’s report contains a statement to the effect that at that time, the plaintiff did not report the presence of significant neck or arm pain, the task for me is to assess the plaintiff’s presentation at the current time.
16 In this regard I note:
· The comment of the plaintiff’s treating general practitioner, Dr Reid, in March 2015 that the plaintiff currently presents with an ongoing need for analgesics and non-steroidal anti-inflammatory medication, rest periods and the use of a neck brace, that his condition had stabilised with virtually no hope for any significant improvement and that his symptoms would most probably be exacerbated by a return to part-time work as a forklift driver;
· The history provided by the plaintiff of the presence of pain requiring him to employ the medication to which I have previously referred, which history was given to each of the medical practitioners who have assessed him and opined as to his presentation between November 2013 and April 2015, none of whom have suggested that plaintiff has in any way overstated his symptoms.
17 For these reasons I am satisfied that I should accept the plaintiff’s evidence as to his current levels of symptomology and employ that evidence as the basis upon which to assess his capacity for employment in preference to the historical evidence of Mr Wong.
18 Mr Peter Battlay, orthopaedic surgeon, who examined the plaintiff on behalf of the defendant and reported in November 2013, was clear that the plaintiff had no ability to return to his pre-injury work duties and hours.[1]
[1]DCB 40g
19 Mr Dominic Yong, specialist occupational physician, who reported upon the plaintiff’s capacity for employment on behalf of the defendant on 16 February 2015, expressed an opinion that the plaintiff had a current capacity to perform work within the following restrictions:
·avoid repetitive neck movements
·avoid repetitive awkward neck postures
·avoid repeated firm pushing or pulling
·avoid lifting more than 5 kilograms on a repeated basis.
20 Whilst Mr Yong was, in his initial report, guarded as to the plaintiff’s ability to return to forklift driving for pre-injury hours given the potential exposure to repeated and prolonged awkward postures in this forklift driving role, in his subsequent report, Mr Yong ruled out forklift driving as being suitable employment for the plaintiff
21 Mr David Brownbill, consultant neurosurgeon, in a report dated 8 August 2015, opined that the plaintiff had no capacity to return to his pre-injury employment.
22 Mr John O’Brien, orthopaedic surgeon, assessed the plaintiff on 17 February 2015, and Dr Joseph Slesenger, a specialist occupational physician, reported on the plaintiff’s capacity for work on 27 April 2015. Each of these medical practitioners expressed opinions as to the plaintiff’s capacity for work which clearly excluded a capacity for his pre-accident employment.
23 Given the consistency in this large body of medical opinion, I am satisfied that forklift driving could not be considered as being suitable employment for the plaintiff
The relevance of the Plaintiff’s failure to undertake rehabilitation
24 It is not in issue that the plaintiff has not undergone any relevant rehabilitation for the purpose of developing skills which would equip him for light work.
25 Given the repeated attempts by the plaintiff to find work as a labourer, forklift driver or welder, I am satisfied that the plaintiff wants to work but that he holds a genuine misconception as to the effect of his injury upon his capacity to work.
26 Equally, I am satisfied that the plaintiff has the onus in this instance of establishing that the effect of his injury has been such that, in the presence of appropriately structured rehabilitation, he would still be precluded from earning a level of income which exceeds the statutory threshold set by the Act.
27 It is agreed by the parties that the threshold income level is $805.11 per week or $41,865 per annum.
Assuming the Plaintiff had undergone appropriate rehabilitation, what fields of employment would be open to him?
28 As to the range of employment opportunities now within the plaintiff’s physical capacity, the defendant has commissioned an expert report from the Recovre organisation which was jointly authored by:
· an occupational therapist/injury management consultant; and
· an employment placement consultant.
29 These consultants, employing their combined expertise, were able to identify only three potential areas of employment for the plaintiff when account was taken of the plaintiff’s:
· Physical tolerance for activity
· Transferable skills; and
· Capacity to be trained to use a computer at a skill level described by the consultants as being likely to be basic.
30 The three potential areas of employment identified by the Recovre consultants were:
·Despatch clerk:
·Warehouse clerk:
·Packer.
31 I am satisfied, given:
· the expertise of the Recovre consultants; and
· the failure by those consultants to identify fields of employment other than those referred to in their report as representing potentially suitable employment for plaintiff were he to undergo suitable retraining
that these three occupations represent the limited range of employment opportunities now available to the plaintiff given the serious nature of his disability, his limited education and his employment history.
32 Relevantly, the defendant has abandoned any reliance upon the occupations of warehouse clerk or packer as representing suitable employment for the plaintiff.
33 I am satisfied, given the structure of the fact, that I should undertake my analysis as to the plaintiff’s current capacity for employment on the basis that the plaintiff will develop, with retraining, the basic computer skills necessary to undertake the duties required of a despatch clerk, this being the only work assessed as being potentially suitable for the plaintiff by Recovre in which the income available to the plaintiff would exceed the agreed statutory threshold in this instance.
34 In the course of his evidence, the plaintiff said that his spelling was poor and that this factor impacted upon his ability to construct emails and operate a computer. I am satisfied, having regard to the note penned by the plaintiff at DCB 124, that his evidence upon this issue is reliable.
35 As I commented to counsel in the course of the application, however, I am not satisfied that the plaintiff’s:
· difficulty with spelling; and
· current lack of capacity when it comes to the operation of computers
are factors which would necessarily tell against the plaintiff’s ability to attain, with suitable training, the skills required to manage a computer to the level required of a person employed as a despatch clerk. It is my impression of that work that it involves a basic ability to operate a computer, generate emails and make computer entries.
36 I am satisfied, however, having regard to the plaintiff’s:
· history of employment in physical work
· level of education
· his unsophisticated nature (this being the strong impression I formed of the plaintiff); and
· difficulty with spelling
that even with appropriate rehabilitation, the plaintiff would be unlikely to gain a level of computer operating skills which would enable him to undertake work involving computer skills more significant than those typically required by a despatch clerk.
Does the Plaintiff retain the capacity to work as a despatch clerk?
37 It is the position of the defendant that the plaintiff retains the capacity to work as a despatch clerk and that such employment would generate an income which exceeds the level which would entitle him to leave to maintain a proceeding claiming damages in respect of loss of earning capacity in this instance.
38 For reasons which I will set out below, I am satisfied that the medical evidence establishes the position to the contrary.
39 In assessing whether or not the plaintiff possesses the physical tolerance to undertake the work of a despatch clerk, I do so on the basis of the descriptions of the tasks involved in that activity, which are described as computer-based tasks occupying 90 per cent of the work day which are typically completed whilst seated and involve extensive mouse clicking.
40 Mr Battlay, in his report dated 28 May 2014, opined that the plaintiff would have the capacity to work as a despatch clerk. It is clear however that, at the time Mr Battlay expressed this opinion, he did so without any consideration of the tasks involved in the duties of a despatch clerk, Mr Battlay having expressed the relevant opinion prior to the commissioning of the Recovre report which identified the relevant activities and in particular, the proportion of time which the plaintiff would have to spend seated in front of a computer screen.
41 For this reason I regard Mr Battlay’s opinion as to that capacity to be uninformed and for that reason to be unpersuasive.
42 In the course of his examination of the plaintiff, Dr Yong obtained from the plaintiff a history that he had a tolerance for sitting for 15 minutes, which history Dr Yong did not appear to question.
43 It is beyond argument that the role of a despatch clerk involves predominately computer-based tasks which are undertaken in a seated position. I find it surprising in these circumstances that Dr Yong would express the opinion that the plaintiff currently has the capacity to undertake the work involved as a despatch clerk.
44 Further, notwithstanding Dr Yong’s statement that the plaintiff should avoid lifting more than 5 kilograms on a repetitive basis, Dr Yong was prepared to recommend the plaintiff as being fit to work as a packer when the Recovre report described that work as the manual loading of boxes typically weighing between 6 to 8 kilograms and, on occasion, up to 13 kilograms.
45 For the above reasons, I find Dr Yong’s analysis of the plaintiff’s capacity for employment to be superficial and unpersuasive
46 I further note the opinion of Dr Yong that the plaintiff’s capacity to undertake any of the work the subject of the Recovre analysis was subject to the plaintiff being able to do so on the basis of a graduated return to work in the course of which his hours of work would be increased over a four to six-month period from a base level of work involving three four-hour shifts per week.
47 In my opinion, that position is appropriately described by the Court of Appeal in Smorgon Steel Tube Mills Pty Ltd v Majkic[2] as bearing no relationship to the commercial job market in which the plaintiff currently finds himself.
[2](2008) 21 VR 193
48 As to the balance of the current medical evidence, it is put on behalf of the defendant that:
· Mr O’Brien obtained an inaccurate history as to the reason for the plaintiff ceasing his employment with the employer; and
· Mr Slesenger assessed the plaintiff on an occasion in which his capacity for movement was unusually restricted, having regard to the plaintiff’s symptoms having been aggravated by reason of the nature of his journey to Mr Slesenger’s consulting rooms
and for this reason the opinions expressed by each of these medical practitioners as to the plaintiff’s retained capacity for employment should be accorded reduced weight.
49 Whilst I accept the force of that position with respect to the report of Dr Slesenger, given my finding that the plaintiff does not possess the capacity to work as a forklift driver, I am of the opinion that the incorrect history recorded by Mr O’Brien in no way diminishes the weight which should be accorded to his opinion on this issue.
50 Whilst the weight of the opinion expressed by Dr Slesenger may be diminished having regard to the matters relevant to the expression of opinion to which I have previously referred, it could not be suggested that Dr Slesenger has expressed an opinion which in any way supports the plaintiff as having a capacity to work as a despatch clerk.
51 It is clear that Mr O’Brien regards the plaintiff as being incapacitated for all forms of employment.
52 Whilst in his report of March 2015, Dr Reid opined that the that the plaintiff may have the capacity for work as a forklift driver, given the findings I have made as to forklift driving not falling within the range of the plaintiff’s retained physical capacity, I do not find Dr Reid’s opinion to be informative one way or the other upon the issue as to whether the plaintiff has a capacity to undertake the duties involved in employment as a despatch clerk.
53 In his report of 8 April 2014, Mr David Brownbill opined that the plaintiff should avoid work which required forced cervical mobility or holding his neck in a flexed position to a marked extent.
54 Although Mr Brownbill does not express an opinion specifically on the issue as to the plaintiff’s capacity to undertake the duties of a despatch clerk, his comment that the plaintiff was unfit for work which required him to hold his neck in a fixed position, in my opinion, clearly precludes the plaintiff from carrying out the work required of a despatch clerk.
55 Given the consistency between my findings as to the level of the plaintiff’s symptoms and the opinions expressed by Mr Brownbill, Mr O’Brien and Dr Slesenger[3] as to the plaintiff’s retained capacity for work, I am satisfied that the evidence of these doctors is persuasive upon the issue as to whether the plaintiff has the physical capacity to work as a despatch clerk.
[3]In making this statement I apply caution as to the weight I apply to the report of Dr Slesenger for the reasons set out earlier. I pay due regard however to the consistency between the opinion expressed by him on this issue and that expressed by Mr Brownbill and Mr O’Brien.
56 The statements by:
· Mr Brownbill that the plaintiff’s incapacity for work will continue into the foreseeable future;
· Mr Battlay that the plaintiff’s condition is stabilised and is unlikely to change;
· Mr O’Brien that the plaintiff’s restriction for employment is permanent; and
· Dr Slesenger that it is unlikely the plaintiff’s symptoms will improve in the foreseeable future
all satisfy me that the plaintiff’s current capacity is likely to persist and that no aspect of rehabilitation is likely to have a positive influence upon his tolerance for physical activity.
57 Given:
· The plaintiff’s evidence as to his tolerance for sitting, his level of pain and the medication he must employ to manage his symptoms, evidence I accept for the reasons which I have referred to; and
· The medical evidence as to the plaintiff’s capacity for activity which I have identified as being persuasive;
I am satisfied that the plaintiff, to all intents and purposes, does not possess the capacity to be employed in the one activity identified by as generating a level of income in full-time employment which would exceed the statutory threshold in this instance namely that of a despatch clerk.
58 For these reasons, I am satisfied that the plaintiff is entitled to the leave which he seeks in this application.
59 I will hear the parties as to the order which should be made in the application and also upon the issue of costs.
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