Varsamidis v Victorian WorkCover Authority
[2022] VCC 1145
•26 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-04158
| JOHNATHAN NOEL VARSAMIDIS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 May 2022 | |
DATE OF JUDGMENT: | 26 July 2022 | |
CASE MAY BE CITED AS: | Varsamidis v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1145 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the neck – pain and suffering and pecuniary loss – pain and suffering conceded
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s327
Judgment: Leave granted to the plaintiff to bring proceedings for the recovery of loss or earning capacity and pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Mr L Allan | Maurice Blackburn Lawyers |
| For the Defendant | Mr L Howe | Wisewould Mahony |
HER HONOUR:
Introduction
1This is a “serious injury” application brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) by the plaintiff, Mr Jonathan Varsamidis, in which he seeks the leave of the Court to commence a common law proceeding for pain and suffering and pecuniary loss.
2At the commencement of the proceeding, Counsel for the defendant accepted the plaintiff had suffered a serious injury and consequences with respect to the pain and suffering application.
3The issue in this case is whether the plaintiff satisfies the statutory requirements of a permanent loss of earning capacity of 40 per cent or more pursuant to s325(2)(e), (f) and (g) of the Act. The burden of proof is on the plaintiff.
4The plaintiff must establish he has sustained a loss of earning capacity of 40 per cent or more pursuant to s325(2)(e)(i) of the Act and after the date of the decision will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more pursuant to s325(2)(e)(ii) of the Act.
5To satisfy the statutory formula, the measure of the claimed loss of earning capacity requires the comparison of two matters:
(a) the gross income the plaintiff is earning whether in suitable employment or not or is capable of earning in suitable employment at the date of the hearing (“after injury earnings”) (s325(2)(f)(i)) of the Act; and
(b) the gross income that the plaintiff was earning or was capable of earning “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” (“without injury earnings”) (s325(2)(f)(ii) of the Act).
6The plaintiff and the defendant agreed that his “without injury earnings” figure is $123,591.35. Sixty per cent of which is $74,154.81 ($1,426 gross per week).
7The remaining issue in the case relates to the “after injury earnings” figure. In dispute is the plaintiff’s capacity for work and whether his loss of earning capacity is permanent.
Background
8The plaintiff is forty years old and grew up in Australia and New Zealand. He completed Year 11 and then completed a carpentry apprenticeship. He described himself as very active prior to his neck injury. He enjoyed skiing, diving, 4 x 4 rugby and martial arts.
9From 2006 to 2009, he worked for Volcom as a production coordinator, manufacturing surf-wear and accessories. Between 2009 and 2011, he worked as a contract carpenter for Metricon. In 2011, he commenced work for DP World as a straddle crane driver.
10On 19 June 2015, he suffered an injury to his neck whilst driving the straddle crane over a large pothole. He went to Epworth Hospital Emergency Department and was given Endone and then saw his general practitioner, Dr Fernando. He had an MRI scan on 23 June 2015 and his neck was put in a soft collar.
11On 15 July 2015, he saw a neurosurgeon, Mr Myron Rogers, who recommended Voltaren and physiotherapy. He had a couple of months off work, during which he took Voltaren, Panadeine Forte and Diazepam, as well as having physiotherapy and undertaking home exercises.
12He initially went back to work doing office duties, however this hurt his neck, so he stopped. In September 2015, he went back to work on light duties, avoiding straddle crane driving. He had two aggravations of his neck injury: on 1 June 2017 in a ute when he was bounced on a speed hump and his head hit the roof, and on 1 March 2018, he suffered more neck pain when he pulled himself up a slippery ladder to his straddle crane.
13He had continuing neck and arm pain and started getting pain in his right arm. On 4 June 2018, Mr Rogers diagnosed right brachialgia as a result of C6 nerve root compression, and recommended surgery. Owing to the upcoming surgery in June 2018, he finished working at DP World.[1]
[1] Plaintiff’s Further Amended Court Book (“PCB”) 16
14On 29 June 2018, the plaintiff had a nerve conduction study, and on 16 August 2018, he had surgery, known as a spinal fusion, being an interior decompression with anterior body grafting at C5-6.
15Following surgery, his arm pain improved, however he continued to experience significant neck pain.
16Post-surgery, his treatment included weekly physiotherapy. His general practitioner prescribed medication which at the time was Palexia, 50 milligrams, four times a week; Norflex, two to three times a week; Zopiclone for sleep and Effexor, 37.5 milligrams, for depression and anxiety. He attends the gym four times a week and does a program recommended and regularly adjusted by his physiotherapist.
17In 2020, the plaintiff started a business selling water free soap, which was unsuccessful due to the low volume of sales.
18On 17 October 2021, he commenced work at Coco Healthcare as a casual warehouse worker, but he struggled with working 24 hours a week and resigned after three weeks. In November 2021, he commenced work with East Coast Canning as a mobile canning assistant. Initially as a casual he was doing full-time hours and has since reduced his hours to approximately 25 hours a week.
The Plaintiff’s evidence
19The plaintiff filed two affidavits dated 28 May 2021 and 21 April 2022.
20Despite his surgery, the plaintiff stated:
“… I continue to have aching neck pain that gets worse the more I move my neck, or after keeping it in the one spot for too long. It just gets worse and worse throughout the day the more I move my neck. I can’t avoid it. I am unable to exercise the full range of motion in my neck.”[2]
[2] PCB 17
21The plaintiff also described disrupted sleep, waking up at least once a night, most nights. Further, he has flare ups of neck pain, often occurring randomly, and when these occur, he has to lie down and take medication and “I am pretty useless for a few hours. They are unpredictable and happen at least 2-3 times a week.”[3]
[3] PCB 17
22The plaintiff stated he cannot perform physical work anymore and has looked for light office and administrative jobs. He also started a diploma in business and logistics to reskill into jobs of a less physical nature.
23He does not feel he can work full time, with his neck and the flare ups. “Something part-time seems a lot more realistic.”[4]
[4] PCB 18
24In his second affidavit, the plaintiff stated he is seeing his general practitioner once or twice a month and is seeing a new psychologist. He does daily exercises at home and goes to the gym, doing a prescribed physiotherapy program four times a week.
25In terms of medication, he is taking Palexia, which is now increased to 100 milligrams three or four times a week and Norflex two or three times a week. He alternates these medications daily but takes more on the days he is working. He takes Zopiclone to help him sleep three or four times a week, and Effexor for his mental health which has been increased to 75 milligrams. He also takes Orphenadrine, 100 milligrams twice daily.
26He did not complete the diploma studies as his neck pain and medication made it difficult to concentrate and he was not enjoying it.
27In October 2021, the plaintiff started work at Coco Health care. He had to input stock into a computer as well as light lifting in the warehouse and forklift driving, doing four six-hour shifts a week and stated: “I found this way too hard on my neck.”[5]
[5] PCB 21
28He now has a new job at East Coast Canning, a mobile canning service. He drives to breweries in Melbourne to help them can their beverages and operates the machinery. He loads empty cans onto a conveyer belt and monitors the machine. Once the cans are filled and closed by the machine, brewery staff load and pack the cans. He helps set up the machinery, and with winches and other aides, it is not heavy work. The job involves walking or standing so he can “rotate [his] posture quite a bit once the machine is up and running…”.[6]
[6] PCB 21
29In cross-examination, the plaintiff clarified that at East Coast Canning he worked with a trained operator, and they went to sites together. He was closely questioned about the exact nature of his work: he explained the machinery is removed from the van via a cable which lowers it onto the ground, and as it is on wheels it is pushed into place. When it is packed up, a special cable pulls it up and lowers it with a winch which the operator connects and uses a control to lower it back into the van. He described the machine as easily guidable. Once the machine is set up, he puts the empty aluminium cans on the conveyor belt “and they go down”.[7] He alternates each hour-and-a-half with the operator between putting empty cans on the conveyer belt and monitoring the machine. He agreed it was repetitive arm work, when putting the cans on the conveyer belt, but otherwise he was watching the machine, checking for jams or blockages. Each shift was between five and eight hours.
[7] T12
30As a casual, he was originally working full time and his general practitioner advised dialling his hours back as it was “hell on my neck”. He now works twenty to thirty hours, averaging twenty-five hours a week. Whilst his neck will still ache and be sore at the end of the day, “it’s much better for my neck than the warehouse job”.
31Although the plaintiff had some computer skills in Excel and Microsoft, he had tried administrative work and with his neck pain, had not been able to tolerate it. Administrative duties require his neck to remain in a fixed position, an issue not solved by a stand-up desk. He stated:
“Sitting at a desk and being in the one posture and using a computer is really not good for me. … It’s better to be up and moving and doing light jobs if possible, although even then as I said the pain will build and build and I need to have a rest after a day’s work if possible.”[8]
[8] PCB 22
32The plaintiff was taken through the job specifications in the Recovre Vocational Assessment Report.[9] He denied being able to meet the physical requirements of a full-time rental salesperson.[10] Likewise, as a despatch supervisor at a manufacturing plant, as he said would not be able to manage the forklift operations, and as an asset protection officer he would not be able to shovel, as it is a lifting action is neck driven. Further, he could not do the job requirements of a laboratory technician or product tester because of the manual handling involved.
[9] Defendant’s Court Book (“DCB”) 52
[10] Transcript (“T”) 39
33He stated he still suffers from “flare ups” in his neck several times a week which makes full-time work “really difficult”.[11] If he worked more than twenty-five hours, he had increased pain and discomfort and had to increase his medications, Palexia and Norflex, which means he cannot function, and said he passed out because it is a high-strength opiate.
[11] PCB 22
34His sleep is still disrupted two or three times a night, he gets numbness in his right arm and his grip and strength in the right arm is reduced. He has not been able to “get back into” sports and activities such as rugby, snow sports, boxing, martial arts, diving, four-wheel driving, and camping.
35The defendant’s counsel did not attack the plaintiff’s credit but submitted his evidence should be treated with some caution.
36Particularly, he put the plaintiff was steadfast and fixed in his position that he can only work twenty-five hours a week and had “put the cue in the rack” workwise.[12] The defendant’s counsel put there is “a fundamental disconnect” between completing an eight-hour shift and going to the gym and lifting barbells. He put the plaintiff was positional, for example that a stand-up desk would not assist him, and he refused to grapple with possible options.
[12] T66
37I found the plaintiff to be a credible witness. He explained his gym regime as part of his treatment which is a program prescribed by his physiotherapist.[13] He was steadfast regarding his capacity to do a twenty-five-hour a week capacity, however he based this on his experience with full-time work, and the aggravating results it had on his neck, such as flare ups and having to increase his medication. His opposition to the potential remedial effects of a stand-up desk was in response to his experience in an office-type administrative job which he has attempted twice.
[13] T62
38Rather than his evidence being about types of work he liked to do, or was interested in doing, in my view, his evidence recognised he knew his own capacity and what he could and could not tolerate. He previously had an outdoor working life of hard physical work where his fitness and strength were his currency. I accept his evidence his neck pain is aggravated by movement as well as stasis. A sedentary administrative role in office confines does not offer the opportunity to be up and moving around as a job such as his current employment does. Dr Baynes opined, “He should not work with constrained postures of the neck …”.[14]
[14] DCB 44
Medical evidence
The Plaintiff’s medical evidence regarding work capacity
39The plaintiff’s treating general practitioner, Dr David Blumberg, has assessed the plaintiff’s capacity for work at ten hours a week.[15] In his report dated 24 February 2020, he described the plaintiff’s prognosis as “complicated,” although he regained limited and partial neck rotational range on a lateral plane, “this is, in my opinion a permanent disability”.[16]
[15] PCB 111
[16] PCB 39
40Dr Hazem Akil, neurosurgeon, assessed the plaintiff on 15 December 2021 and his prognosis was that the plaintiff’s neck pain was not going to improve, and he had reached maximum treatment and had a poor prognosis.[17]
[17] PCB 63
41He noted the plaintiff’s current role in “line assistance” was dependent on analgesia and he was working four to five days for long hours. He noted the jobs in the Recovre report were “similar” to his current employment and he was concerned the plaintiff could only perform his current job on significant analgesics, “Whether this necessarily means that he is suitable for this employment or not is something I actually doubt and disagree with”.[18]
[18] PCB 63
42Dr Joseph Slesenger, specialist occupational physician, assessed the plaintiff on 28 January 2022. In respect of his cervical and lumbar spine impairment, he recommended the following work restrictions:
· no push, pull, carry or lift over 5 kilograms
· no repetitive neck postures
· no sustained forward reaching
· no over shoulder reaching
· no exposure to whole of body vibrations
· no repetitive bending or twisting; and
· no prolonged static postures.
43At the time of his assessment, the plaintiff had recently been working at East Coast Canning between twenty to forty hours a week and had noted an increase in his neck symptoms and his daytime fatigue. Dr Slesenger noted the plaintiff’s previous employment at Coco Healthcare had aggravated his symptoms.
44Dr Slesenger advised against the plaintiff returning to work in the roles of hire controller, despatch supervisor, asset protection officer and product tester.[19]
[19] PCB 78
45With respect to his cervical spine impairment, Dr Slesenger expressed reservations about the plaintiff’s work capacity and was of the opinion “he is unlikely to be able to attend work consistently and reliably performing suitable alternative duties”.[20]
[20] PCB 79
46In his second report dated 24 April 2022, Dr Slesenger noted his previous reservations:
“Taking the evidence as a whole, should he choose to remain in this role despite ongoing symptoms, I recommend that he be limited to working 4 hours and day, 4 days per week.”[21]
[21] PCB 84
47With respect to the proposed roles in the Recovre report, Dr Slesenger recommended both the hire controller role and product tester role with restrictions, for sixteen hours a week. He did not recommend the role of despatch supervisor, noting the forklift driving requirement, or the asset protection role, noting manual handling of up to 3 kilograms and repetitive bending.
48Dr Slesenger was of the opinion the plaintiff had a number of significant negative prognostic indicators, namely adjacent segment disease (arising from spinal surgery) and his psychological comorbidity. He also suggested the plaintiff undergo a pain management program to address his medication use.
49The Flexi Personnel employment assessment report by Ms Mary Oliver, a recruitment specialist, referred to the medical opinions, noting the plaintiff is currently working in a limited physical capacity on a casual basis so he can refuse a shift. She stated:
“… From a recruitment view, when performing commercial employment even work of the lightest demands requires a consistent capacity to productively perform the assigned duties. … .”[22]
[22] PCB 92
The Defendant’s medical evidence regarding work capacity
50Dr Baynes is an occupational physician who saw the plaintiff for a medical assessment on 22 March 2022.
51In his first report dated 22 March 2022, in Dr Baynes’ opinion, the plaintiff is fit for alternative duties where there is no lifting greater than 10 kilograms and no repetitive lifting greater than 5 kilograms. He should not lift above shoulder height or below knee height. He should not work with constrained postures of the neck and should avoid jarring and whole-body vibration. Dr Baynes believed him to be fit for full-time work with rotation of duties.[23]
[23] DCB 44
52Dr Baynes believed the plaintiff was fit to undertake full-time work in his present employment on a canning company production line, as well as work as a warehouse administration clerk, in retail sales and trade sales. With re-training, he would be fit to work as an OH&S officer.[24]
[24] DCB 44
53In his second report dated 19 April 2022, Dr Baynes was requested to consider the vocational assessment report from Recovre dated 20 September 2021. He further believed the plaintiff had the physical capacity to work in a hire controller role at a forklift and related equipment rental services business. He believed the plaintiff was fit for full-time hours, although would require on-the-job training. He was also of the view the plaintiff was fit for full-time work in a despatch supervisor role at a cardboard manufacturing and processing plant, apart from the forklift operation requirement. The plaintiff also had the capacity to be a full-time asset protection officer and would require a “good computer ergonomic set up at the office”.[25] He was also of the view the plaintiff was fit for full-time work in a quality tester/lab technician role undertaking quality testing procedures and would require a “good ergonomic set up”.[26]
[25] DCB 49
[26] DCB 47
54Dr Rahgozar, a consultant occupational physician, examined the plaintiff on 29 June 2020. He was asked to assess his condition and capacity for work. In his report dated 30 June 2020, he stated:
“… the likelihood of Mr Varsamidis being able to return to unrestricted pre-injury work in logistics, warehousing and as a stevedore is not high. However he has capacity for restricted duties subject to being able to avoid frequent bending and twisting of his neck, lifting, pulling, pushing and carrying heavy objects. …”[27]
[27] DCB 27
55Dr Rahgozar noted the plaintiff had capacity for suitable employment such as –
“… administration assistant, terminal operator, sales in shipping industry, retail, and logistics coordinator.
… light delivery driver, light pick packing and pathology courier.”[28]
[28] DCB 29-30
56He does not express an opinion as to whether the plaintiff has the capacity to work full-time hours.
57Dr Simon Cohen, a consultant pain specialist physician, examined the plaintiff on 1 September 2020. Dr Cohen’s opinion was the plaintiff had work capacity in employment that was relatively sedentary and protective of his neck and repetitive physical lifting.[29] He was of the view the plaintiff had capacity to work in the following roles:
· Administrative assistant
· Rental salesperson
· Sales representative, retail, but not warehouse person.
[29] DCB 37
58He stated “I think Mr Varsamidis has capability of starting alternative duties in a gradual process at this point of time”.[30] He does not offer an opinion as to whether the plaintiff can work full-time hours in the roles considered in the Recovre report.
[30] DCB 38
59Dr Janaka Seneviratne, neurologist and clinical neurophysiologist, in his report dated 1 June 2020, noted the plaintiff was not fit to go back to his pre-injury duties. He opined the plaintiff “has the capacity to perform modified duties starting at reduced hours and gradually increasing the hours to pre-injury duties with time”.[31] Whilst Dr Seneviratne was of the opinion the plaintiff could return to modified pre-injury duties, he noted “not more than 20 hours a week to commence with. His work hours can be gradually increased with time depending on the tolerance.”[32]
[31] DCB 20
[32] DCB 21
60Dr Umberto Boffa, occupational physician, and Dr David Barton, occupational physician, both proposed a graduated return to pre-injury hours, noting the plaintiff is unable to return to pre-injury duties. I note their reports from 2015 and 2018 respectively are not current.
61An assessment via Zoom on 5 August 2021 by Ms Robyn Willett, vocational consultant from Recovre, sought to determine suitable employment options for the plaintiff, having regard to his physical tolerances described in the medical reports. The reports of Doctors Blumberg, Seneviratne, Rahqozar and Cohen all agreed the plaintiff was not capable of returning to his pre-injury employment.
62The report identified four roles recommended for the plaintiff:
· Hire controller – full-time basis (annual salary base wage $70,000 up to $85,000, 90 per cent of work day is desk based or office administration activities);
· Despatch supervisor – morning (6.00am – 4.30pm) or afternoon 4.30pm – 3.00am) shifts (salary $78,000 gross plus 2 per cent increase 2020 – requires forklift driving);
· Asset protection officer – full-time basis (salary is $34 – $39 per hour, depending on experience, requires some onsite bending/sweeping); and
· Product tester – full-time worker ($1,442 gross weekly wage).
Loss of earning capacity
63In relation to the pre-injury earnings, as noted, the parties agree the plaintiff’s pre-injury gross income is $123,591.35 per annum. To establish the requisite 40 per cent loss, the plaintiff must show he is incapable of earning a sum greater than $74,154.81 per annum, which is $1,426 per week.
64His “with injury” earning capacity is assessed on what the plaintiff is earning, whether in suitable employment or not (s325(2)(f)(i)(A) of the Act) or capable of earning in suitable employment (s325(2)(f)(i)(B) of the Act) as at that date, whichever is greater.
65Suitable employment requires an objective test which looks at the worker’s suitability for work, taking into account matters such as age, education, experience, and residence.
66Relevant to this application, with respect to rehabilitation, pursuant to s325(2)(g) of the Act, the plaintiff must establish that retraining or rehabilitation in an employment sense has nothing to offer him in the future that would give rise to the 40 per cent loss.
67The defendant’s counsel submits the plaintiff has capacity for full-time employment and relies on Dr Baynes’ report where he states, “I believe he is fit to work for full-time hours and where there is rotation of duties”.[33]
[33] DCB 44
68The plaintiff gave evidence about two jobs he had started full time. The first was at Coco Health care, a job that involved inputting stock data in a computer, light lifting and forklift driving where he could not cope with the full-time hours and “quit” the job after three weeks. The second was his current employment at East Coast Canning, which he started as a casual on 40 hours a week and had to reduce to his current 25 hours a week. I accept the plaintiff’s evidence that he gave the full-time hours a “go” only to find the after effects on his neck pain too difficult to tolerate.
69The Recovre report identified roles the plaintiff could perform on a full-time basis. The defendant contends the plaintiff can work full time, and yearly or weekly gross figures are to be preferred.
70The plaintiff has told doctors he is not interested in further study. He started a course, a Diploma of Logistics and a Diploma of Business (Procurement), however, he found it too difficult to concentrate and study and did not complete it. I do not accept the submission that there are rehabilitation and retraining options the plaintiff could do which he has not exhausted. After three-and-a-half years of not working, the plaintiff attempted a course but found it too difficult given his pain, and medication regime which affects his concentration. In my view, this diminishes the likelihood of him successfully completing future studies or re-training.
71The only medical report in favour of the plaintiff working full time is from Dr Baynes. Dr Rahgozar, although asked, does not provide an opinion and neither does Dr Cohen, other than stating the plaintiff has the capacity for work. I discount the opinions in the reports of Doctors Boffa and Barton as not current, being from 2015 and 2018, as I must decide this application based on the evidence at the time of hearing.
72I am disinclined to accept Dr Baynes’ opinion: his opinion is inconsistent with the plaintiff’s treating general practitioner, as well as Dr Rahgozar and Dr Cohen. I note his report also includes the opinion the plaintiff could be working full time at his current employment with East Coast Canning.[34] This is at odds with the plaintiff’s evidence that he tried full-time hours and was not able to cope. Dr Baynes’ reference to ‘rotation of duties’ is not explained, nor is it clear how that is realised in practical effect.
[34] DCB 44
73I prefer the evidence of the plaintiff, from his direct experience. The medical evidence supports whilst his arm pain reduced after surgery, his neck pain is unabated. As well as constant pain, he has disrupted sleep and unexpected pain flare ups which are random in nature. He is on opioid medication, Palexia, and Norflex, three to four times a week, always one or the other in a day, as well as Percolone to relax his neck, more when he is working. The medication manages his pain and affects his concentration. Dr Slesenger, noting his medication regime, is of the opinion the plaintiff should be working sixteen hours a week, and notes, “he is unlikely to be able to attend work consistently and reliably”.[35]
[35]PCB 78
74He has tried full-time work and to pursue study and appears motivated to be active. Full-time work requires consistent attendance five days a week. The evidence of his flare ups, which occur randomly throughout the week when he has to lie down and take medication, is uncontested. He has tried full-time work and could not cope which is a good guide as to his capacity. He also tried to start his own business in 2020 which was ultimately unsuccessful.
75Considering this evidence, I have reached the conclusion the plaintiff is not capable of working on a full-time basis and is only capable of working approximately 25 hours a week.
76He is currently employed approximately 25 hours a week and is paid a casual hourly rate of $25.41.
77I note the discrepancy in earning figures calculated in positions between the Recovre report and the Flexi Personnel report. Recovre use an annual figure and Flexi Personnel has provided the hourly award rates for full-time, part time and casual. It is not clear from the Recovre report how the annual salaries are calculated, whether by reference to the award or relevant to the size and position of the company in the relevant industry. In respect of determining what the plaintiff is capable of earning, I prefer to apply the industry hourly rate which is an independent, transparent and referable figure. At 25 hours per week, the part-time hourly rate is applicable, noting the Flexi Personnel report states that generally, people are not employed in a casual capacity for these roles.
78Taking my finding regarding 25 hours per week, and my preference to use the hourly rates, I have applied this to the proposed roles the defendant has suggested (without accounting for the objections of the plaintiff and some of the medical opinions regarding both suitability and his capacity for some of the roles). The following analysis reveals:
· Hire controller and rental salesperson – the part-time gross hourly rate is $22.33, at 25 hours, gross per week is $558.25.
· Despatch clerk – the part-time gross hourly rate is $23.12, at 25 hours, gross per week is $578.00.
· Asset protection officer/facilities administrator – the part-time gross hourly rate provided for a facilities administrator is $23.33, at 25 hours, gross per week is $583.25.
· Product tester/lab technician – no award rates were provided. The Recovre report nominates the gross weekly wage of $1,442 which calculates at and hourly rate of $36.05, at 25 hours, gross per week is $901.25.
79In considering those positions, even if they were all suitable (which is contested) and calculated at the higher casual hourly rate, they are all under the threshold of the agreed “without injury” earnings figure, sixty per cent of which is $1,426 gross per week.
Is the loss of earning capacity permanent?
80The plaintiff must satisfy the Court he will continue permanently to suffer a loss of earning capacity of 40 per cent or more (s325(2)(e)(ii) of the Act).
81The medical opinions of Dr Akil, Dr Slesenger and the plaintiff’s treating general practitioner, Dr David Blumberg, accepted the plaintiff’s neck pain was not going to improve, and he had reached maximum treatment, had a poor prognosis and had negative prognostic indicators.
82Dr Blomberg is of the opinion his disability is permanent. The medical opinions support the position the plaintiff’s prognosis is poor and his condition has remained the same for the last three-and-a-half years.
83I accept this will remain so for the foreseeable future and I find the plaintiff will continue to permanently suffer a loss of earning capacity of 40 per cent or more.
84I note it is not in issue the plaintiff has a serious injury with respect to pain and suffering.
85I grant leave for the plaintiff to bring proceedings for the recovery of loss or earning capacity and pain and suffering.
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