Tournier v Alcoa Australia Limited
[2018] VCC 159
•9 March 2018
MMR
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-05746
| DARYL HARRY JAMES TOURNIER | Plaintiff |
| v | |
| ALCOA OF AUSTRALIA LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 14 and 15 February 2018 | |
DATE OF JUDGMENT: | 9 March 2018 | |
CASE MAY BE CITED AS: | Tournier v Alcoa Australia Limited | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 159 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the right shoulder – whether loss of earning capacity consequence are serious
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Acir v Frosster Pty Ltd [2009] VSC 454; Herald and Weekly Times v Jessop [2014] VSCA 292; Advanced Wire & Cable Pty Ltd [2009] VSCA 170; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Peak Engineering & Anor v McKenzie [2014 VSCA 67
Judgment: The plaintiff is granted leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Ms S Lean | Maurice Blackburn |
| For the Defendant | Mr G J Moloney | Hunt & Hunt |
HIS HONOUR:
Introduction
1 The plaintiff suffered an injury to his right shoulder in the course of his employment with the defendant from October 1999, and, in particular, on 3 September 2011. He submitted that the injury impaired the function of his right shoulder, with consequences which are “serious”, both in terms of pain and suffering and loss of earning capacity.
2 Mr A Macnab appeared with Ms S Lean of counsel for the plaintiff. Mr G J Moloney of counsel appeared for the defendant.
The Plaintiff’s background
3 The plaintiff was born in 1962. He is now fifty-five years of age. He lives with his domestic partner. He has two adult children by his previous relationship.
4 The plaintiff was last educated to Year 9 level at East Geelong Technical College. He worked in a number of jobs before obtaining employment with the defendant on 1 August 1988 as a pot room operator.
The compensable injury
5 The plaintiff commenced working as part of a rodding team at some unstated time. He described the work as very heavy and repetitive, and at times awkward. He was required to use a crowbar, jackhammers and impact guns. He was often required to occupy awkward positions in order to undertake this work.
6 One of the tasks which the plaintiff emphasised as being particularly heavy was having to manually push and pull the trolley on which an anode was positioned. It required a lot of force. He was doing that work on 3 September 2011 when he experienced pain in his right shoulder.
The Plaintiff’s medical treatment
7 There was nothing particularly controversial in the treatment which the plaintiff obtained subsequent to suffering the injury to his right shoulder. Therefore, it is only necessary to give a brief summary of it before turning to the central issue in this application.
8 The plaintiff saw Dr Snyman, general practitioner, on 5 September 2011 at the defendant’s medical centre. The entry in the defendant’s medical records dated 5 September 2011 records the plaintiff complaining of discomfort in his right shoulder. He attended the medical centre on two further occasions that day. On both occasions, ice was placed on his shoulder.[1]
[1]Defendant’s Court Book (“DCB”) 135
9 The plaintiff then saw Dr Jones, general practitioner, on 6 September 2011. Dr Jones was the plaintiff’s usual family medical practitioner. He referred the plaintiff to have an ultrasound which was performed on 6 September 2011. The radiologist reported that the plaintiff had developed an adhesive capsulitis. He recommended that he undergo a CT-guided shoulder hydrodilatation.[2]
[2]Plaintiff’s Court Book (“PCB”) 32
10 The plaintiff subsequently had the hydrodilatation on 9 September 2011, and also a steroid injection on 15 September 2011. He obtained some relief from the pain he was experiencing.[3] The plaintiff subsequently had physiotherapy from 30 November 2011.[4]
[3]PCB 22 and Dr Jones’ report dated 7 December 2015 at PCB 37
[4]PCB 46-49
11 Dr Jones provided two reports dated 7 December 2015[5] and 9 December 2015.[6] Mr Hayter, physiotherapist, provided three reports dated 16 September 2014,[7] 9 December 2015[8] and 31 October 2017.[9] Both Dr Jones and Mr Hayter record that the plaintiff’s right shoulder was initially a problem of some significance, but after treatment it improved.
[5]PCB 37
[6]PCB 38
[7]PCB 46-47
[8]PCB 48-49
[9]PCB 50-51
12 However, Dr Jones recorded that the plaintiff experienced a grabbing sensation in his right shoulder from time to time, and although he had obtained a reasonable level of recovery, he was likely to suffer intermittent aggravation of his right shoulder associated with sudden episodes of pain.[10]
[10]PCB 37-38
13 Mr Hayter appears to have observed a deterioration in the plaintiff’s right shoulder between treating him in 2014 and an evaluation of the state of his right shoulder on 18 November 2015. The deterioration was confirmed when he made a further evaluation on 21 December 2016. He conferred with the plaintiff by telephone on 31 October 2017, no doubt after he was requested by the solicitor for the plaintiff to provide a report. He recorded that the plaintiff was experiencing intermittent right shoulder pain and stiffness and was unable to lie on his right shoulder at night. He also recorded some details of the work the plaintiff was performing, which I will return to later. In the end, he was of the opinion that the plaintiff had a retained a capacity for work so long as he avoided overhead activity and heavy or repetitive lifting.[11]
[11]PCB 51
14 The plaintiff was subsequently treated by Dr Sohail, general practitioner. He referred the plaintiff to have a further ultrasound and x-ray of both shoulders which was taken on 31 May 2017. The ultrasound of the right shoulder did not demonstrate any significant abnormality.[12]
[12]PCB 35-36
15 Dr Sohail provided two reports dated 26 July 2017[13] and 22 November 2017.[14] At the time when he provided the second report, he understood that the plaintiff was working four days a week. He recorded that the plaintiff told him that he experienced a “hefty ache” in his right shoulder after a big day at work. He also recorded that the plaintiff suffered flare-ups of pain, and when that occurred, he would see Mr Hayter for physiotherapy treatment. He considered that the plaintiff could utilise his right shoulder and arm for work purposes with the following restrictions:
[13]PCB 41-42
[14]PCB 43
§ no lifting over 10 kilograms
§ no pushing or pulling of heavy machinery
§ some limitations undertaking overhead activities; and
§ avoidance of prolonged and repetitive use of his right arm.
16 He also considered that the plaintiff was likely to suffer flare-ups of pain in his right shoulder.[15]
[15]PCB 41
17 The plaintiff presently uses Nurofen and Panadol for pain relief. He also uses Voltaren gel which he applies to his right shoulder.[16] He was prescribed Voltaren, but stopped using it because of its side-effects.[17] Otherwise, he has intermittent physiotherapy when he suffers flare-ups of pain. He undertakes exercises which were demonstrated to him by his treating physiotherapist.[18]
[16]PCB 23 and 26.2
[17]Transcript 47
[18]PCB 26.2
Return to work
18 Dr Jones certified the plaintiff as fit for modified duties. His supervisor gave him lighter duties after he was made aware of the difficulties which the plaintiff was experiencing with his right shoulder. The plaintiff became reliant on his left shoulder, which I understand to mean that he performed more physical work with his left shoulder in order to accommodate the difficulties he was experiencing with his right shoulder.[19]
[19]PCB 23
19 The defendant closed its Geelong operations in August 2014. The plaintiff remained working for the defendant under some arrangement while it ran its operations down to the point where its operations closed down altogether. The medical records of the defendant do not record any further complaints of problems which the plaintiff was experiencing with his right shoulder between 22 September 2011 and the date of the closure of the defendant’s operations.[20]
[20]DCB 135
20 The plaintiff found temporary work as a driver with the Geelong City Council and as a cleaner and usher at Skilled Stadium. He then found full-time employment as a labourer and forklift driver with M B Pre-Fab Framing Pty Ltd (“M B”). He said that he struggled to perform that work.[21] He was then employed full time by MMR Transport Pty Ltd (“MMR”). He said that he also struggled with that work.
[21]PCB 23
21 Under cross-examination, the plaintiff described the work he performed with M B and MMR. The work he performed with M B involved driving a forklift. He used it to load packs of roof trusses onto trucks. He did some overtime when he went out with one of the truck driver’s on a job.[22]
[22]Transcript 25-26
22 In about April 2017, he commenced full-time employment with MMR. The work he performed with MMR involved driving a heavy rigid truck which was 2.4-metres wide with a 15-tonne gross tare. He delivered packs of prefabricated roof trusses to various localities, some of which were significantly distant from Geelong, for example along the Surf Coast, to Melbourne and as far as Gippsland. The roof trusses were loaded by a forklift. He would have to secure the load manually. The loads were unloaded by a crane fixed to the truck, but on some occasions he had to assist in manually unloading where the crane could not be used. He said the need for manual unloading was relatively rare and undertaken with assistance.[23]
[23]Transcript 29
23 The plaintiff reduced his days of work with MMR from five days per week to four days per week about four or five months ago. At present, he works from 6.30am to 3.00pm. Under cross-examination, he was taken to three wage slips. He said that before he reduced his hours of work he was probably working an average of 41 hours per week. Working four days per week has reduced his hours of work to an average of 34 to 35 hours per week.[24]
[24]Transcript 42
24 Under further cross-examination, the plaintiff said that he reduced his hours of work because he has been struggling to do his work. He has experienced pain and restriction of movement in his right shoulder and arm.
25 Under re-examination, the plaintiff described a number of problems which he currently has with his right shoulder. He has difficulty using his right shoulder and arm to work over head height. He can tolerate working at lower levels. He has difficulty with tasks which involve pushing and pulling. He tries to avoid lifting. If he works a long day and there is pushing involved, his pain level will increase to 6 to 7 out of 10. This occurs about once a month. If he is involved in manual unloading, then he experiences aching pain in his right shoulder. Driving the longer distances to make deliveries results in him experiencing soreness in his right shoulder.[25]
[25]Transcript 46-48
The medico-legal opinions
26 I will firstly turn to the medical evidence relied upon by the plaintiff.
27 Dr Slesenger, occupational physician, examined the plaintiff on 7 September 2017. He provided two reports dated 12 September 2017.[26] He obtained a full history of the work which the plaintiff performed with the defendant leading up to what occurred on 5 September 2011. He considered that the plaintiff had probably suffered right shoulder supraspinatus tendinitis, bursitis and possibly adhesive capsulitis, and probably suffered residual dysfunction in his left shoulder due to a rotator cuff tear.
[26]PCB 59-70
28 Dr Slesenger considered that the plaintiff had residual functional limitations resulting from his right shoulder injury and should avoid over shoulder reaching, pushing, pulling, carrying or lifting over 10 kilograms, sustained forward reaching and repetitive shoulder work. With his understanding of the work which the plaintiff performed prior to 5 September 2011, he considered that the plaintiff could not return to those duties. In relation to the work he understood he was performing with M B and MMR, he considered that they were outside the limits of his residual capacity for work, and he considered that his capacity to sustain work at that level was uncertain.[27]
[27]PCB 68-69 and 73
29 Mr Khan, orthopaedic surgeon, examined the plaintiff on 8 August 2017. He provided a report dated 17 October 2017.[28] Although the defendant submitted that Mr Khan was not provided with sufficient materials to express an opinion, and otherwise did not analyse the relevant facts adequately, I do not agree. I think the history he obtained from the plaintiff was very adequate. I think the documentation he was provided was also very adequate. Indeed, his treatment of the history and the documentation appears to me to have been very careful and thorough.
[28]PCB 76-85
30 Mr Khan considered that the plaintiff had suffered supraspinatus tendinopathy and tendinosis resulting from his work with the defendant. He considered that the plaintiff would be unable to perform work which involved repetitive elevation of his right shoulder above his head, and pushing, pulling or lifting unusually heavy weights with his right arm. He considered that he would be precluded from performing his pre-injury duties with the defendant.[29]
[29]PCB 83-84
31 Mr Doig, orthopaedic surgeon, examined the plaintiff for the defendant on 23 January 2016. He provided a report dated 23 January 2016.[30] The plaintiff relied upon his opinion. Mr Doig was provided with documentation said to be contained in a schedule attached to his report, but no such schedule was attached. The history he took is brief. Perhaps there was more in the documentation he was provided which by implication he incorporated into his report. He was provided with an MRI scan, and I presume it was an MRI scan of the plaintiff’s right shoulder.
[30]DCB 30-35
32 Mr Doig considered that the plaintiff had suffered “subacromial bursitis/impingement/rotator cuff syndrome” affecting his right shoulder. He considered that the plaintiff was fit to perform his normal pre-injury duties on the basis of the restrictions he would place on the plaintiff being observed – a lifting restriction of 15 kilograms at or below waist height with no repetitive use of his dominant right arm overhead.[31]
[31]DCB 33-34
33 The medical evidence relied upon the defendant is in stark contrast to the opinions relied upon by the plaintiff.
34 The first of those is Mr Baynes, occupational physician, who examined the plaintiff on 4 June 2015. He provided a report dated 4 June 2015.[32] He was aware that the plaintiff was working with M B at the time when he examined him. Dr Baynes recorded that the plaintiff told him that he had “no pain in the shoulder”. The plaintiff’s reaction to being told what Dr Baynes recorded was to say that he did not remember saying that. It was my impression that he did not agree that at around the time when Dr Baynes examined him, that he was pain free.[33] On examination, he found tenderness over the anterior shoulder joint, but otherwise no significant abnormality. He considered that the plaintiff had suffered an aggravation of degenerative changes in his right shoulder which had largely settled by 2012. He noted that his clinical examination demonstrated that the right shoulder was relatively normal, apart from slight discomfort at extremes of extension. Inherent in his opinion is a conclusion that the plaintiff was fit for his pre-injury work and the work he was performing at the time he examined him.[34]
[32]DCB 26-29
[33]Transcript 35
[34]DCB 29
35 Mr Jones, orthopaedic surgeon, examined the plaintiff on 2 November 2017. He provided a report dated 4 December 2017.[35] He was provided with documentation, but did not identify what it was. Otherwise, the history obtained from the plaintiff is very adequate. He considered that the plaintiff had suffered right shoulder capsulitis in the past, but he could not find any evidence of that condition at the time when he examined him. He considered that the plaintiff was suffering from non-specific right-sided shoulder discomfort, and that his disability was “of the very mildest”. He considered he had an excellent prognosis. Inherent in his opinion is a conclusion that the plaintiff was fit for his pre-injury work and the work he was performing at the time he examined him.[36]
[35]DCB 37-40
[36]DCB 39-40
The issues
36 The first issue is the identification of the injury suffered by the plaintiff.
37 The second issue is whether the plaintiff has recovered from the effects of that injury.
38 The third issue is whether the plaintiff was in fact incapacitated, to some degree, for his pre-injury work, even though Dr Jones cleared him to at least undertake modified duties.
39 The fourth issue is whether the plaintiff would have continued to be fit to perform his pre-injury work if the defendant had not closed down its operations.
40 The fifth issue is if the plaintiff was incapacitated for his pre-injury work, on what basis is the calculation of earnings within the three years before and the three years after injury to be undertaken which most fairly reflects the plaintiff’s earning capacity had the injury not occurred: s134AB (38)(f)(ii) of the Accident Compensation Act 1985 (“the ACA”).
41 The sixth issue is, if the relevant comparison involves the earnings of the plaintiff with the defendant compared with the earnings with M B, then is his loss of earning capacity consistent with what is required by s(38)(b) and (c) of the ACA?
42 The seventh issue is if the plaintiff fails to satisfy me that his loss of earning capacity is “serious”, then are the pain and suffering consequences of the impairment of the function of his right shoulder “serious”?
Findings
43 It is all too common in serious injury applications that a judge is faced with medical opinions which are in stark contrast. It is then for the judge to determine which body of evidence is more compelling than the other. Sometimes that is a difficult task.
44 The defendant submitted that if I cannot resolve the conflict in the evidence, then that must lead me to conclude that the plaintiff has failed to discharge the onus of proof that he bears.
45 I will deal with the first three issues together. After considering all of the evidence and the submissions of both the plaintiff and the defendant, I prefer the plaintiff’s evidence. My reasons for doing so are that it is plain that the plaintiff suffered an injury to his right shoulder. That led him to have, among other treatment, a hydrodilatation, a steroid injection, physiotherapy and the use of medication to treat the pathological process demonstrated in the first ultrasound.
46 The early diagnosis and treatment, together with the extensive radiology, was the basis upon which Dr Slesenger and Mr Khan considered that there was a pathological process capable of diagnosis which was the cause of the plaintiff’s pain and restriction of movement in his right shoulder.
47 Therefore, I prefer the evidence of Mr Khan, and in particular, his diagnosis of the pathological process resulting from the injury and which is responsible for the plaintiff’s pain and restriction of movement in his right shoulder.
48 I accept the plaintiff’s evidence that from the time that he suffered the injury to his right shoulder, he has been troubled by pain and restriction of movement. When that evidence is coupled with the medical evidence I prefer, I have no hesitation in concluding that it is the pathological process diagnosed by Mr Khan which is the cause of the plaintiff’s pain and restriction of movement at present.
49 The fourth issue – I accept the plaintiff’s evidence that he experienced difficulty performing his work with the defendant. I accept his evidence that his supervisor essentially accommodated his difficulties in performing his work.
50 I prefer the evidence of Dr Slesenger and Mr Khan that when they have reviewed all of the relevant documentation they were provided, that it is improbable that the plaintiff would have continued to be fit to perform his work with the defendant. I accept the plaintiff’s evidence that the work he was performing with the defendant was heavy work. I accept his evidence, by inference, that the work he subsequently performed with M B and MMR constituted lighter work, but nonetheless work which aggravates the underlying pathological process, making it difficult for him to perform his work.
51 On the basis of the plaintiff’s evidence and the opinions of Dr Slesenger and Mr Khan, I have concluded that it is unlikely that the plaintiff would have been capable of continuing his work with the defendant if it had not closed down its operations. Inherent in this conclusion is a rejection of the opinions of Dr Baynes and Mr Jones for reasons which I think are plain.
52 The fifth issue – this issue consumed the larger part of the defendant’s submissions. It is necessary to set out the relevant parts of s134AB(38)(f) in full before analysing the issue raised by the defendant:
“(f) for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing—
(i) the worker's gross income from personal exertion (expressed at an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii) the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred.”
53 The earnings of the plaintiff within the three years before and the three years after injury are not controversial. Both parties agreed that the taxation summary is an accurate summary of the plaintiff’s gross income from personal exertion for the financial years ending 30 June 2007 to 30 June 2017.[37]
[37]PCB 113
54 The defendant submitted that I should not use the income which the plaintiff earned from personal exertion with the defendant as one of the comparators in determining whether he satisfies the statutory test for loss of earning capacity. It submitted that the defendant was one of the highest paying employers in Geelong. The plaintiff would not have earned an income of that order with any other employer in Geelong.
55 The defendant did not adduce any evidence of wages payable by other employers in Geelong whose industry is comparable with the industry in which the defendant was involved. The simple fact is that there is no evidence upon which I can conclude that the defendant paid above the odds so to speak.
56 Otherwise, the parties submitted that the comparators are the income which the plaintiff earned before the defendant closed down its operations in Geelong and the income he is presently earning. For the financial year ending 30 June 2016, he had $42,763.00, and for the following financial year, $45,114.00.
57 The defendant submitted that I should not use the earnings and personal exertion which the plaintiff derived from his employment with the defendant as a comparator, because the defendant had closed its operations in Geelong. The focus of that submission was summarised by the defendant as follows:
“That whole enterprise ceased to be available to the worker, the worker was therefore in a work environment in Geelong and the surrounds for suitable employment that could not generate income like that but it could generate income of the type that the worker initially undertook, as his skills allowed him to become a forklift driver, a truck driver.”[38]
[38]Transcript 61
58 The defendant principally relied upon Acir v Frosster Pty Ltd[39] and Herald and Weekly Times v Jessop.[40] Neither decision supports the proposition contended for by the defendant. The relevant parts of each decision relied upon by the defendant concern the interpretation of the section. There is no statement in either decision which restricts the comparators to employment that remains available.
[39][2009] VSC 454
[40][2014] VSCA 292, and the recent decision of Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35
59 I think the section calls for the simple application of what the words demonstrate. Firstly, I must determine the gross income that the plaintiff was earning from personal exertion with the defendant during the three years before and three years after the injury. Secondly, the calculation must be what most fairly reflects the worker’s earning capacity had the injury not occurred.
60 The determination of the first part of the equation calls upon me to look into the plaintiff’s past working history. It does not call upon me to do anything more. The fact that an employer continues to function or not, is not to the point. If it were, then one would expect clear words to be incorporated into the section to make that clear.
61 The determination of what most fairly reflects the plaintiff’s earning capacity is to look at the manner and extent that the plaintiff exploited his capacity to work for the employer. It is common to see that some workers will have a rise and fall in their gross income from year to year. Is it a most fair reflection to take the lowest gross income in a particular year? Or is it a most fair reflection to take the highest gross income in a particular year? The answer will depend upon the peculiar relevant facts of each individual case.
62 The gross income in the three years before ranges between $87,000 and $94,000, and the three years after ranges between $100,000 and $105,000. What most fairly reflects earning capacity is what he was capable of earning, which is $105,550 for the financial year ending 30 June 2014.
63 I accept the plaintiff’s evidence that he has experienced difficulty in performing the work with M B and MMR. I also accept his evidence that his reason for reducing the hours of his work is entirely due to his right shoulder. I have already dealt with the opinions of Dr Slesenger and Mr Khan relevant to whether the plaintiff is fit to perform his pre-injury work, but I will repeat it briefly. I accept their opinions that he is not fit for his pre-injury work, but is fit for the work he is presently doing, although, with the rider made by Dr Slesenger that the plaintiff may be exceeding the limitations that he would put on his capacity to perform suitable employment.
64 It is, in these circumstances, that I have concluded that the relevant comparators are the gross income that the plaintiff was earning from personal exertion with the defendant in the years leading up to 2014 and within the six years referred to in the section. A comparison between that income on what the plaintiff has been capable of earning makes it abundantly clear that he easily satisfies the statutory test for loss of earning capacity.
65 Both counsel invited me to focus in on the plaintiff’s application for loss of earning capacity on the footing that a finding that he satisfied the statutory test would result in there being no necessity to separately consider his application for loss of earning capacity.[41]
[41]Advanced Wire & Cable Pty Ltdv Abdulle [2009] VSCA 170
The Plaintiff’s other impairments
66 In Peak Engineering & Anor v McKenzie,[42] the Court of Appeal observed that where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial.
[42][2014] VSCA 67
67 Under cross-examination, the plaintiff admitted that he has been troubled by both a lower back and right knee complaint which have interfered with his capacity to perform his work. There was no evidence which suggested that the interference is significant, but rather I was left with the impression that it is the opposite. The cross-examination did not demonstrate the impairment resulting from the lower back complaint on the right knee complaint, and if an impairment exists in a real sense, then whether it results in any pain and suffering consequences and/or loss of earning capacity consequences.[43] Under re-examination, the plaintiff said that he rates his lower back pain as one out of ten, and his right knee complaint is presently stable, which I understand to mean that it is not causing him any interference with his capacity to work.[44]
[43]Transcript 30-31
[44]Transcript 43
68 The defendant candidly conceded that it could not point to any evidence which demonstrated that the process of reasoning referred to in Peak Engineering[45] must be undertaken here.[46]
[45]Supra
[46]Transcript 77
69 To the extent that I am called on to make findings about the pain and suffering consequences and loss of earning capacity consequences resulting from the plaintiff’s lower back complaint and right knee complaint, then I accept the plaintiff’s evidence that in real terms, they are causing him marginal interference given the low level of rating of interference that he gave each of them in his evidence. I infer from the plaintiff’s evidence that if he was only troubled by the lower back complaint on the right knee complaint of that, they would not incapacitate him for the work he is presently performing with MMR.
Conclusion
70 It is for these reasons that I have concluded that the plaintiff’s loss of earning capacity consequences are serious, and I have reached that conclusion after having made the relevant comparison with like impairments as I am required to do.
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