Truong v Victorian WorkCover Authority

[2022] VCC 161

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-01717

PHUOC THANH TRUONG

v

VICTORIAN WORKCOVER AUTHORITY

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JUDGE:	HER HONOUR JUDGE TRAN
WHERE HELD:	Melbourne
DATE OF HEARING:	08 February 2022 (via Zoom)
DATE OF JUDGMENT:	22 February 2022
CASE MAY BE CITED AS:	Truong v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2022] VCC 161

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – loss of earning capacity

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s325

Cases Cited:Masters v McCubbery [1996] 1 VR ; Richter v Driscoll (2016) 51 VR 95; Corkhill v Victorian Workcover Authority [2021] VCC 1179

Judgment:                  Leave granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Morrow with Ms F Crock	Slater and Gordon Ltd
For the Defendant	Ms B McKenzie	IDP Lawyers

HER HONOUR:

1      On 31 January 2017, Phuoc Thanh Truong suffered fractures to his spine, pelvis and right collarbone in a workplace accident.

2 It is not in dispute that Mr Truong has suffered a serious injury with respect to the pain and suffering consequences of this accident. It is also not in dispute that, as a result of his injury, Mr Truong is only able to work four hours a day, five days per week in suitable employment, to a maximal total of 20 hours per week. The only issue remaining for the Court to decide is whether, given Mr Truong can work up to 20 hours per week, he has suffered a reduction in his earning capacity which satisfies the requirements in s325(2)(e) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCA”).

3 Section 325(2)(e) imposes two requirements. First, s325(2)(e)(i) requires Mr Truong to show that, at the date of the hearing, he has a current loss of earning capacity of 40 per cent or more as set out in s325(2)(f) (the current “loss of earning capacity” threshold). Second, s325(2)(e)(ii) requires Mr Truong to show that he will continue permanently to have a loss of earning capacity of 40 per cent or more (the “permanent loss of earning capacity” threshold).

4 For both current loss of earning capacity and permanent loss of earning capacity, loss of earning capacity is determined by comparing with-injury earning capacity against without-injury earning capacity. However, s325(2)(f) of the WIRCA prescribes special methods of calculation for determining both with-injury earning capacity and without-injury earning capacity for the purposes of the current loss of earning capacity threshold.[1]  These special methods of calculation require the Court to use:

[1]That the special methods of calculation in s325(2)(f) of the WIRCA only apply to current loss of earning capacity is made clear by the reference to s325(2)(f) in s325(2)(e)(i), but not s325(2)(e)(ii); and the complementary reference to s325(2)(e)(i) in s325(2)(f).

(a)   for with-injury earning capacity, the greater of:[2]

[2] Section 325(2)(f)(i) of the WIRCA

(i)the amount Mr Truong is earning (whether in suitable employment or not); and

(ii)the amount Mr Truong is capable of earning in suitable employment;

(b)   for without-injury earning capacity, the gross income that Mr Truong:[3]

(i)was earning;

(ii)was capable of earning;

(iii)would have earned; or

(iv)would have been capable of earning,

from personal exertion during that part of the period within three years before and three years after the injury, as most fairly reflects the worker’s earning capacity had the injury not occurred.

[3] Section 325(2)(f)(ii) of the WIRCA

Has Mr Truong suffered a current loss of earning capacity of 40 per cent or more?

With-injury earning capacity

5      There was no evidence that Mr Truong is currently earning any relevant income.  Accordingly, I must determine the amount that Mr Truong is capable of earning in suitable employment.

6      By an opinion dated 18 June 2021, a medical panel has determined that Mr Truong is capable of working four hours a day, five days a week, to a maximal total of 20 hours per week in suitable employment.  The Medical Panel has also determined that working as a hand packer (where lifting is less than 5 kilograms), data entry operator, help desk operator, assembler (medical kits, electronic components), production clerk or despatch clerk, would constitute suitable employment for Mr Truong.

7      I am bound by these determinations.[4]

[4] Section 313(4)(a) and (b) of the WIRCA; Masters v McCubbery [1996] 1 VR

8      Counsel for Mr Truong submitted that it was nevertheless open to me to determine that Mr Truong was not capable of earning any income in suitable employment.  Counsel submitted that no evidence had been led by the defendant that there was an actual position – within a reasonable distance of the plaintiff’s place of residence – which met the Medical Panel’s requirements of being four hours a day, five days a week.

9      In my view, it is not open to the plaintiff to seek to reagitate the issues decided by the Medical Panel in this proceeding.  The Medical Panel has determined that Mr Truong is capable of working four hours a day, five days a week in the various specified roles in suitable employment.  As is clear from Richter v Driscoll,[5] such a finding encompasses a consideration of Mr Truong’s age, previous experience, education, skills and place of residence – more than merely physical capacity.  

[5] [2016] VSCA 142

10    The critical issue is not whether Mr Truong is capable of earning income, but how much Mr Truong is capable of earning by working four hours a day, five days a week to a maximum total of 20 hours per week, in the roles identified as suitable employment by the Medical Panel.

11    Counsel for the Victorian WorkCover Authority (“VWA”) submitted that I was bound by the figures provided for these roles in the two Vocational Assessment Reports provided to the Medical Panel.  He relied upon Corkhill v Victorian Workcover Authority,[6] in which Judge Misso held that, given a medical panel opinion that the role of despatch supervisor was suitable employment, he was bound to apply the gross income per annum that the Vocational Assessment Report stated was earned from the role of despatch supervisor.

[6] [2021] VCC 1179

12    In my view, the decision in Corkhill turns upon the particular facts of that case.  As Judge Misso put it, the Medical Panel had determined the worker was capable of performing a specific “real job” referred to in a vocational assessment report.[7]  In the present case, the Medical Panel has not determined that Mr Truong is capable of a specific job contained in a vocational assessment report, but rather employment in a number of possible roles, so long as his hours are limited to four hours a day, five days a week.

[7]         Corkhill v Victorian Workcover Authority [2021] VCC 1179 at paragraph [45]

13    The first of the Vocational Assessment Reports relied upon by the defendant, a 130 Week Vocational Assessment Report prepared by Workable consulting, provides a figure for “weekly earnings” for each of assembler, hand packer, data entry operator and help desk operator.  However, it does not specify whether this is an award wage, an average wage, an entry-level wage, or something else entirely.  It also does not specify how many hours are worked to earn these weekly earnings.  Counsel for the VWA submitted that it could be inferred that it was a 38-hour week and that the amount that could be earned by Mr Truong could be calculated by dividing this wage by 38 hours and multiplying it by twenty.  However, there is nothing express in the report that says that this is the appropriate calculation to be made.

14    In the second assessment report, a vocational assessment report prepared by Recovre, several specific roles are described, and hourly rates provided.[8]  However, each of those roles is a full-time position, rather than the limited-hours’ role that the Medical Panel found was suitable employment for Mr Truong.

[8]        DCB 21, DCB 30, DCB 35

15    Better evidence of the amount that Mr Truong is capable of earning is provided by the two reports of Mary Oliver from Flexi Personnel Pty Ltd, which were tendered by Mr Truong.  In those reports, Ms Oliver specifically considers the roles which the Medical Panel has determined constitute suitable employment, that is, working four hours per week, five days a week as a hand packer (where lifting is less than 5 kilograms), data entry operator, help desk operator, assembler (medical kits, electronic components), production clerk or despatch clerk.  

16    In her initial report, Ms Oliver provides an hourly rate for each of those roles based on her opinion as to the applicable Award rate.  In her supplementary report, Ms Oliver explains her reason for selecting the Award rate for an entry-level role.  

17    I accept that it is reasonable to use an entry-level rate for Mr Truong’s current income earning capacity, given he has no previous experience in the nominated roles.[9]  I do not accept that there is a basis to increase that rate for, for example, weekend or public holiday rates, in the absence of any evidence that this is appropriate.

[9]        See Transcript (“T”) 22, Lines (“L”) 1

18    The highest rate Ms Oliver provides for any of the suitable roles is $23.12 per hour (despatch clerk).  I accept this rate as the basis for calculating Mr Truong’s with-injury earning capacity.  This would result in a sum of $24,044.80 per year for Mr Truong’s with-injury earning capacity.[10]

[10]        $23.12/hour x 20 hours per week x 52 weeks

Without injury earning capacity

19    Counsel for Mr Truong submitted I should also rely upon Ms Oliver’s reports when determining Mr Truong’s without-injury earning capacity.  Ms Oliver provides a figure of $28.71 per hour for a process worker working in meat processing in Victoria as at 24 January 2022 ($56,730.96 per year).  However, 24 January 2022 is not within the three years prior to injury and three years after injury required by the special method for calculating without-injury earning capacity.  Accordingly, I do not accept it is an appropriate rate to apply.

20    The only available figure, on the evidence, of the income which Mr Truong was earning, was capable of earning, would have earned, or would have been capable of earning in the three years prior to injury and three years after injury, is the amount which Mr Truong actually earned in the 2015/2106 financial year.  This was $41,185.

Conclusion on current loss of earning capacity

21 Mr Truong’s current with-injury earning capacity ($24,044.80) is 58 per cent of Mr Truong’s without-injury earning capacity ($41,185). Accordingly, I am satisfied that he has a current loss of earning capacity of at least 40 per cent, calculated in accordance with the special method in s325(2)(f) of the WIRCA.

Has Mr Truong suffered a permanent loss of earning capacity of 40 per cent or more?

22    Mr Truong must also satisfy the Court that he will continue permanently to suffer a loss of earning capacity of 40 per cent or more.

23    The Medical Panel determined that Mr Truong’s reduced capacity for employment (that is, no more than 20 hours per week) was permanent.  I am bound by that decision.

24    Counsel for the VWA submitted I should use higher rates for with-injury earning capacity as, while Mr Truong would currently be an entry-level employee in each of the suitable roles, this would not continue through the foreseeable future.  However, Mr Truong was also an entry-level process worker before his injury – having only worked one full financial year as a process worker, for which he earned $41,185.  Had he not been injured, he would have also expected to earn an increasing salary in this role.  

25    Self-evidently, the permanent loss of earning capacity test cannot require that Mr Truong never earn more than 60 per cent of $41,185.  Given the inexorable nature of inflation, that would be a nearly impossible hurdle for any worker with a work capacity to overcome.  The critical question is whether Mr Truong’s current reduced earning capacity will continue through the foreseeable future.  It follows from the determination of the Medical Panel that it will.

26    I am satisfied that Mr Truong will continue permanently to suffer a loss of earning capacity of 40 per cent or more.

Conclusion

27 Mr Truong satisfies the threshold for the loss of earning consequences of injury in s325(2)(e) of the WIRCA. I will grant leave to bring proceedings for both pain and suffering and pecuniary loss damages.

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Certificate

I certify that these 7 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 22 February 2022.

Dated: 22 February 2022

Coco Weston     

Associate to her Honour Judge Tran