Vassallo v Intermotor Sales
[2017] VMC 16
•13 September 2017
| IN THE MAGISTRATES' COURT OF VICTORIA |
AT MELBOURNE
Case No. F11418975
| ADAM VASSALLO | Plaintiff |
| v | |
| INTERMOTOR SALES (DEER PARK) PTY LTD | Defendant |
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MAGISTRATE: | Magistrate B R Wright | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22, 23 and 24 August 2017 | |
DATE OF JUDGMENT: | 13 September 2017 | |
CASE MAY BE CITED AS: | Vassallo v Intermotor Sales | |
MEDIUM NEUTRAL CITATION: | [2017] VMC016 | |
REASONS FOR JUDGMENT
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Catchwords: Workers Compensation – Accepted Left Shoulder Injury Claim – Return To Work – Whether Primary Psychiatric Injury After Return to Work – Alleged Failure To Make Reasonable Efforts To Return To Work In Suitable Employment – Effect Of Termination Of Employment For Misconduct – Jurisdiction To Consider Other Grounds For Termination Of Weekly Payments Without Formal Notice – Workplace Injury Rehabilitation and Compensation Act 2013 ss. 104, 105, 114, 163, 185(1)(d) and 264(2).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Mactiernan | Slater and Gordon |
| For the Defendant | Mr D Oldfield | Russell Kennedy |
HIS HONOUR:
1 Mr Vassallo, presently aged 27 years old, was formerly employed as a full time car detailer for exactly one year by the defendant trading as Le Mans Toyota (“Le Mans”). Le Mans is a new and used car dealership in Deer Park
2 He injured his dominant left shoulder and arm when he slipped and fell at work on 23 July 2014. Liability was admitted under the Workplace Injury Rehabilitation and Compensation Act2013 (“the Act”) and he began to receive weekly payments.
3 The first issue in this case is that, after his return to work with Le Mans on a return to work plan, his weekly payments were eventually terminated on the basis he had not made reasonable efforts to actively participate and co-operate in planning for return to work.
4 The second issue is that on 16 December 2014, his last date at work, his employment was summarily terminated on the grounds of misconduct. Le Mans states that is a further ground for termination of his weekly payments pursuant to s.185 (1)(d) of the Act.
5 Weekly payments were terminated as of 7 November 2014. Of course, both provisions do not entitle the VWA to terminate reasonable medical and like expenses, which have not been terminated separately.
6 The third issue is that on 11 April 2017 Mr Vassallo lodged a further claim form under the Act for an alleged primary psychiatric injury, being stress, anxiety and depression on the basis of alleged bullying and harassment on his return to work. That claim was rejected by Le Mans.
7 There was a fourth issue relating to cessation of his entitlement for payment for physiotherapy expenses which was withdrawn in the course of the proceeding.
8 It was common between the parties that he has a “current work capacity” as at present. I note that pursuant to s.163 of the Act any 130 week weekly payments period for the shoulder injury would have ceased as at 23 January 2017, and for any primary psychiatric injury as at 16 May 2017, unless there had been “no current work capacity likely to last indefinitely”. There was no evidence called or submission made on this aspect by either party.
9 Mr Vassallo called his mother and two general practitioners to give evidence. Le Mans called three of its staff to give evidence. Otherwise, a number of documents were tendered by both parties.
10 Mr Vassallo's job as a car detailer involved the preparation of new and used cars, the fitting of accessories and general cleaning of vehicles. This involved washing of vehicles, both manual and automatic, vacuuming and polishing of vehicles and the use of various hand tools and cleaning equipment. Both hands were required for almost all tasks. He was employed on a full time basis initially for three months and then on a contract.
11 Previously, he had partially completed a spray painting apprenticeship over a number of years and had worked in the construction industry as well.
12 After his injury on 23 July 2014 he said he went to his GP, had a CT scan and had his left arm put in a sling. He returned to work on about 27 August 2014 operating an automatic car wash and driving cars about three days per week for four hours per day. After about three to four weeks his manager, Victor Agius (“Victor”), said he should try his old job working with his non-dominant right arm only. This was about late September 2014.
13 He was unable to remember dealing with “Konekt”, apparently an employer rehabilitation adviser. However, it was common that this was done around about 14 October 2014. Effectively, he continued doing his previous job trying to use his non-injured right arm only.
14 He said he was on painkillers and having difficulty sleeping. He was slower in his job. One of the other detailers, Raniel Lugto (“Raniel”), was having to do more work and work longer. He said Raniel was not happy with this and heard him say that he (Mr Vassallo) needed crutches and was useless.
15 He was asked by Julius Cancan (“Julius”), a supervisor, to mop the floors of the workshop. He said Raniel would not talk to him and would walk away and make faces at him.
16 He had a return to work plan dated 14 October 2014. He said he was having physiotherapy after work. He was served with a Reminder Notice dated 20 October 2014 pointing out that he had been leaving work early for medical appointments. It further stated that in accordance with his doctor's certificate after the meeting with Konekt that he should return to full hours from 3 November 2014.
17 A medical certificate was tendered from Dr Duong, his GP, dated 15 October 2014 setting out the need for light duties, no lifting greater than three kgs and no work above shoulder level or repetitive movements with the left arm. He was to increase his hours from four hours three days a week for one week, to four hours five days per week for one week, six hours per day for one week and then full time thereafter.
18 Despite the stated restrictions he said he had to use both hands for tasks such as polishing which increased the pain to the left shoulder. He was having difficulty sleeping on the left side, having only about three to four hours per night. His GP was not giving him sleep medication, at least for a while.
19 He returned to his GP and got a medical certificate dated 24 October 2014 giving him that day off work and then to return to four hours per day, three days per week on light duties. He said he still had difficulty in sleeping and being able to perform his duties.
20 On 7 November 2014 the authorised agent issued a Suspension Notice on the basis he had only worked four hours on 6 November 2014 instead of the full eight hours as previously endorsed by Dr Duong. The Notice did not refer to the medical certificate of 24 October 2014.
21 Later, on 8 December 2014 the authorised agent served a Notice terminating his weekly payments on the same basis as the Suspension Notice, again not referring to the 24 October 2014 medical certificate.
22 On his last day at work on 16 December 2014 he was washing a new Corolla. When he finished he said he got into the car. He said the engine was running in neutral gear, that he had wet boots and his foot slipped on the accelerator. The engine revved loudly, but the car did not move because it was in neutral. He saw Raniel nearby who shook his head. He reversed and then drove the car to another area, giving it to another employee by the name of “Shannon”. He said Julius told him to go home. He had worked about four hours that day and was due to go home soon anyway.
23 When he got home he was telephoned by the General Manager, Mr Bailey, who told him he had been doing “burn-outs” on the premises and speeding and this was misconduct. He told him Raniel had seen him do this. He told Mr Vassallo that he was sacked immediately and he should never put a foot on the premises again.
24 Mr Vassallo said he told him the allegations were untrue but Mr Bailey would not listen. He told Mr Bailey he was only being sacked because he was useless to the company.
25 Mr Vassallo said he was suspicious because on the previous day he had been telephoned by “Helen”, another employee, and asked where the keys and a manual for a particular car were. He told her he had put them in a box and then given it to Raniel who took it to Helen. He later checked and found the keys and manual at the top of a rubbish dumpster. He believed that someone had been “setting him up”.
26 He had been involved in a previous incident with Raniel on about 13 November 2014 when he was criticised for using a particular rag to clean a car. Raniel told him the rag was his own rag and that Mr Vassallo should not use it. There was a heated argument and Mr Vassallo left early stating he felt “useless”.
27 His mother went to the workplace the next day or so because he was upset. He returned to work the day after that. He said he was supposed to clock on and off each day at work but sometimes forgot to do so.
28 Between 15 November and 16 December he thought he worked about three to four days per week for about three to four hours per day. He said he did not work any longer hours because of the effects of his injury and being subjected to “bullying”.
29 After being sacked he received in the mail a document headed "Second Warning" dated 16 December 2014 about two months later. It was signed by his manager, Julius. It said that he had, (1) “been doing burnouts on the new vehicle” and (2) “performing excessive speed around the premises” (emphasis added). It noted, "Adam said that he would not do it again". It said the consequences of further infractions (emphasis added) would be "Termination". Mr Vassallo denied ever speaking to Julius about the alleged incident on 16 December (“the alleged incident”) at all.
30 After being sacked he went to Centrelink for benefits and was told they needed a separation certificate from the employer. He requested this and later received it about one month after being sacked. It noted he had been terminated for "end of season or contract" and "gross misconduct endangering safety of staff and public, total disregard for management and staff, total disregard for rules and procedures". In evidence to me, Mr Vassallo denied the alleged misconduct and related allegations in both documents.
31 After being sacked he continued to see Dr Duong until 24 March 2015 when Dr Duong told him he did not want to be involved in workers compensation matters. He started to see a Dr Sheriff, another GP.
32 He had been referred to a Dr Kim Marshall, a rheumatologist, by Dr Duong on 9 October 2014 but did not see him until 16 February 2015. He arranged for an ultrasound guided injection to the left shoulder and he had a second injection at a later stage. He has not had any surgery and is currently on Nurofen and Endep, which is an opiate for pain.
33 He was on Cymbalta for anxiety and depression for a period. He also returned to see a psychologist, Mr Ramzi Mohammad, whom he had seen in the past for injuries received in a motor vehicle accident. He had also seen a psychiatrist, Dr Ibrahim, once who increased his dosage of Endep.
34 In cross-examination Mr Vassallo agreed that he had received a First Warning Notice on 25 June 2014 for "Substandard work - scratching car". He said the car had a pre-existing paint defect which was the reason for the scratch removal of the paint.
35 He did not remember seeing a physiotherapist, Mr Phu, for treatment in the mornings but remembered he had advised return to work, but limiting above shoulder work with his left arm.
36 On his return to work after his left shoulder injury he had worked on an automatic car wash for a while. Victor wanted him to do some normal work. He said he would try but his physiotherapist said he should limit above shoulder work. He was asked to mop the whole floor of the workshop but could only do about a quarter of it. He was not able to work fast and needed to take short breaks because of pain. He said Julius and Victor were trying to find jobs he could perform with restrictions.
37 He thought they were testing him out. He starting working on larger cars. He felt like an old man. People there were laughing at him and made fun of him. They could not believe he could not mop floors or polish car windows. They did not support him. He said he could not work on high cars as he could not pull himself into the cars with his right arm as the pain was "travelling from the left side to right side". The other workers did not help him and he had to do every car by himself. He said Raniel and Shannon had to work harder because he was not able to do the same amount of work as he did before his injury.
38 Raniel told him one day that he, Mr Vassallo, should buy crutches and not sunglasses. He was facing away at the time. He said that he was "constantly" bullied by Raniel who said he was useless. He would walk away at times and not answer Mr Vassallo. He would not talk to Mr Vassallo. Raniel and another Filipino worker were talking to each other in their own language (Tagalog) which he believed was about him.
39 He said Julius and Raniel "were always pissed off and angry at him". He agreed he was frustrated by his injury but was "bullied" as well. He did not remember whether he told Dr Duong or any other doctor about being “bullied”. Later, he said he told a psychologist, Mr Ramzi Mohammad, about it. He did not remember when he told his own solicitor about the bullying. He had seen Mr Ramzi Mohammad previously for anxiety and depression received as a result of a car accident.
40 After the rag incident he said Raniel told him not to use his rag which upset Mr Vassallo as he said all the rags were available for use by everybody and it did not have Raniel's name on it. He went to the manager and complained. His mother later came in and saw Victor. After the incident he returned to work and worked separately to Raniel. He said there was no other incident involving Raniel apart from the crutches incident. Raniel would ignore him.
41 As to the alleged incident on the last day, he specifically denied speeding, screeching the car tyres or leaving skid marks. He said he drove the car and left it with Shannon. Nobody, including Victor, spoke to him about his driving that day on the premises. He abided by the five kph speed limit on the premises and always drove carefully.
42 He said that when he drove the car Raniel was to his right side. About 20 minutes after he got home Mr Bailey rang him and sacked him over the phone for "dangerous driving". He denied that and said that he would now be "out on the street" and would be "taking the sacking further". There was a delay in Centrelink payments as he did not receive a separation certificate for some time.
43 He agreed that after he returned to work at the start after his surgery, he would leave early to see his physiotherapist. Victor told him to organise his physiotherapy outside his work hours which he did. On 20 November and 21 November 2014 he denied leaving work early and said that he was "resting in his car" at the back of the premises. They were the only two days he "left early or rested in the car" and he was not spoken to about that issue later.
44 He agreed that he sometimes "forgot" to clock on and off at the premises. He agreed Victor told him once to tell somebody if he was leaving early and he could take a five to ten minute rest break if he needed it. He denied ever receiving or seeing a Second Warning Notice dated 23 November 2014 alleging "leaving work early without telling anybody". I note that that Notice was not signed by him.
45 He said he told Victor about the rag incident. He then arranged for Mr Vassallo and Raniel to come to his office and told them to "get on with each other". He was later recalled for further cross-examination which went over his hours on return to work again.
46 Mr Vassallo said that he increased his hours to four hours for five days per week in the last week he worked. He agreed he had a medical certificate from Dr Duong certifying four hours for four days per week as at 7 November 2014 and a further medical certificate dated 27 November 2014 again for light duties. It specified "no lifting greater than three kilos, no work above shoulder height, no repetitive movement of left arm" for five hours per day, four days per week up until 20 December 2014. He agreed he never returned to full time work and could not increase his hours because of the pain.
47 In re-examination he said he had no further contact with Ryan Wheeler from Konekt after the meeting with Dr Duong to agree on a return to work plan in October 2014. However, he did speak to him once by phone to tell him he was having trouble building up his hours because of the pain.
48 That completes my summary of his evidence. Before dealing with the medical evidence I will summarise the other lay evidence first having regard to the two major issues in this case involving ss.114 and 185 of the Act.
49 The only witness called by Mr Vassallo was his mother, Irene Vassallo. She said one day he came home in tears and was upset "how they had been treating him at work". He had complained about somebody at work whom she thought was Vietnamese. She went to Le Mans and asked to see Victor. She complained that her son was going to work in pain and under pressure. She told Victor about her son's reaction the day before and asked to see the Vietnamese man. Victor refused that request and said he would handle it. She said her son was depressed about the incident for a week and he later returned on light duties.
50 Counsel for Le Mans called three lay witnesses to give evidence. Mr Stephen Bailey, General Manager, gave evidence. He knew Mr Vassallo before the incident but did not deal with him directly except for discrete issues such as the "driving recklessly" incident. Mr Vassallo's direct manager was Julius. There were about 105 workers on the premises.
51 Mr Bailey said he was told that Mr Vassallo had been in a car at the back of the premises and had been seen with the “wheels spinning" on the car. There were five kph speed signs there and staff and customers were normally in the area. The car had gone out of control. Somebody could have been hurt. He was told "the wheels were spinning" and tyre residue was left on the road. He said the car must have been speeding for the wheels to be spinning. Safety was important and he would not tolerate dangerous driving or speeding. He spoke to Julius who showed him some photos of the marks on the road. Interestingly, Mr Bailey thought it had been raining that day.
52 He made a decision to terminate Mr Vassallo's employment and told Victor to terminate the employment. However, he (Mr Bailey) rang Mr Vassallo himself later that day at home and in a short call told him that he was terminating his employment for misconduct for "reckless driving and endangering life".
53 In cross-examination he said the incident took place at the rear of the pre‑delivery building. He said Mr Vassallo did not try to explain what happened and did not tell him his foot slipped on the accelerator. He said there was no coincidence with his one year contract finishing on that same date. He said the photos that he saw showed five metre long skid marks which were dark. He said Julius and Raniel told him of the skid marks. They were about five to six metres from the building and about four metres from the bay. Otherwise, he repeated a number of other matters I have already discussed.
54 He was shown the 16 December 2014 Warning Notice and said it was prepared by Julius and "this was given to Mr Vassallo". He believed Victor told Mr Vassallo that he was sacked. He did not ask for any explanation from Mr Vassallo as "he was trying to do what he did". He did not know of any issues between Mr Vassallo and Raniel.
55 The next witness was Raniel Lugto who was another car detailer at Le Mans. He remembered Mr Vassallo's last date of employment. He said he was in a car bay at the back of the workshop when he heard a car engine and saw a Corolla hatch go by travelling at about 20 kph. It braked very hard and left skid marks which he initially said were one metre long. There was hard braking of the vehicle and a screech of tyres as it did so.
56 He went outside and saw Mr Vassallo get out of the car and said to him that he "was testing the brakes". He went back inside. Victor, Julius and another man, Alan, came out and took photos of the skid marks. They asked him to explain what happened. He explained that the tyres screeched when Mr Vassallo was in the car. He said the skid marks had not been there before the incident.
57 He was taken through four photos which showed the general area. Despite Mr Bailey's evidence the photos which were tendered to the court did not show skid marks on the road. Raniel marked them with a pen in the witness box as running between him and the other person, Alan, shown in one of the photos. Although it is hard to estimate the marks they would appear to be more than five metres long.
58 He said that Mr Vassallo had come from a fuel bowser near the back of the workshop which is nearby but not shown in the photos. This would be about twenty metres or so to the start of the skid marks. He identified five kph speed signs in the area as well as other signs stating “Authorised Personnel Only” in the detailing and wash bays and the workshop.
59 He was taken through his evidence about the rag incident. He said he had a personal rag which he only used for final polishing and Mr Vassallo had grabbed it for normal cleaning. Raniel was upset as the rags were expensive, though they were purchased by Le Mans, and could only be used for a limited period of time for final polishing. He told Victor of this who told them both to calm down. There was no further talk between he and Mr Vassallo. He denied speaking in Tagalog to others about Mr Vassallo. He said that he, Raniel, took his job "very seriously".
60 After Mr Vassallo's injury he worked the same hours but had to work harder as there were more cars and that was more stressful. He denied being upset by this and said that he "just dealt with it".
61 In cross-examination he was taken through the photos and the alleged speeding incident in some detail. Largely, this did not take the issue any further except for a couple of points. He now said the skid marks were four metres long and agreed it was possible Mr Vassallo had actually taken the car from the car wash. The photos do show water and wet tyre marks very near to the car wash. The fuel bowser was just past the workshop door next to the work bay. He believed Mr Vassallo would have filled up the car with petrol before driving it away. Importantly, he said he did not remember any wheels spinning.
62 He remember Mr Vassallo's mother coming into work but did not speak to her. He denied making any comment about crutches to, or about, Mr Vassallo. He said there were days he would not speak to Mr Vassallo or not reply as he was "just working".
63 The final lay witness was Victor Agius who was the service pre-delivery manager. He said that he managed Mr Vassallo and both were managed by Julius. Mr Vassallo reported a shoulder injury to him on the date of the initial incident. On his return to work he was responsible as the return to work coordinator to give Mr Vassallo suitable duties on limited hours, three days per week for five hours per day and not lifting above head height. He was told the restrictions by somebody he did not remember.
64 Initially, Mr Vassallo worked on an automatic car wash in which he only had to push buttons and drive a car in and out of the car wash. He did not remember telling Mr Vassallo to go back to the car detailing work but would have discussed those issues with his manager, Julius. He said that Julius was no longer employed by Le Mans. He said he did know where Julius was now.
65 He was not aware of any bullying allegation by Mr Vassallo but said that there was some misunderstanding between him and Raniel over a rag. He had called one or both of them into his office and told them to "move on". He remembered Mr Vassallo's mother coming into work one day but did not remember what it was about.
66 He said that Mr Vassallo's attendance after his injury was "all over the place". One week he would work five hours and others he might work one day or not at all. He believed if Mr Vassallo had asked to take a rest he would have agreed.
67 He was asked about the written warning dated 21 November 2014 as to leaving early and not telling anybody. This was specified as a "First Warning Notice". He said it was signed by Julius and believed it would have been given by him to Mr Vassallo. He actually gave the other First Warning Notice dated 25 June 2014 for sub-standard work to Mr Vassallo. He had nothing to do with Mr Vassallo's dismissal on 16 December 2014.
68 Mr Bailey told him that he would terminate Mr Vassallo’s employment and he passed that message on to Julius. He did not observe the alleged speeding incident but saw some skid marks on the ground which had not been there before. He believed that Mr Vassallo did do burn-outs and/or left skid marks. He said that Alan Rudd had told him of this.
69 He said Julius wrote the Second Warning Notice dated 16 December 2014. He agreed that Mr Vassallo should have signed the 21 November and the 16 December Notices. If he refused to sign then that should have been noted on the Notices which was not done. He noted Mr Vassallo had signed the 25 June 2014 Notice. He had nothing to do with the issue of the separation certificate and did not know whose writing it contained.
70 He knew Mr Vassallo was on a 12 month contract and would have told that to Ryan Wheeler from Konekt. He agreed that the job had to be kept open for 12 months after Mr Vassallo's injury. He did not remember why he signed the return to work plan on 20 October 2014. He did not know at what date the automatic car wash stage was to finish and/or the stage two detailing car work was to commence.
71 He did not specifically remember seeing the 20 October 2014 medical certificate specifying three hours a day for four days per week but had seen some of the medical certificates handed in by or on behalf of Mr Vassallo. He never spoke to Dr Duong and did know whether Mr Wheeler had told him that Mr Vassallo had increased pain in the left shoulder at work.
72 As for suggested changes to the hours of work, he did not remember any such conversation with Ryan Walker and said he would have told Mr Vassallo to work the hours that he was told to give him. He had limited memory of the rag incident or its aftermath. He remembered Mr Vassallo's mother attending work and did not know the reason. He agreed there were strict rules as to speed limits on the premises. Signs were everywhere and workers told at meetings about those rules.
73 That completes the lay evidence in this matter. Before I discuss the medical evidence I should make a few observations on the lay evidence, or more particularly its lack.
74 In opening Counsel for Mr Vassallo said she would be calling the workmate, Shannon. Later in the course of the evidence she said that he would not be coming to court and she would show a letter from him to opposing Counsel.
75 Counsel for the Defendant did not call the manager, Julius, or Ryan Wheeler from Konekt or indeed any other evidence as to the hours worked by Mr Vassallo. Mr Alan Rudd, the other man shown in the photos, was also not called.
76 Pursuant to the Return to Work Plan, apart from some vague “guesstimates” from Dr Duong and Mr Agius, I note there was very little evidence concerning the number of hours Mr Vassallo worked. I note the evidence was that Julius had now left Le Mans’ employment. Also, there was evidence that at times Mr Vassallo did not clock on or off.
77 Neither party made any Jones v Dunkel–type submission in this case. However, as can be seen from the evidence so far evidence from those witnesses may well have been helpful in resolving the issues in this case.
78 Mr Vassallo called two GPs and a psychologist to give evidence and tendered reports prepared by them. It is convenient to summarise Dr Duong's evidence first as he treated Mr Vassallo prior to Dr Sheriff. I will only go into the medical evidence insofar as it is relevant to the three remaining issues in this case.
79 Dr Duong has treated Mr Vassallo since July 2014. He acknowledged compiling four reports which were tendered in evidence. He examined Mr Vassallo's left shoulder on 23 July 2014 after a fall at work. There was no abnormality on X-ray or CT and there was a diagnosis of soft tissue and/or musculo-ligamentous sprain.
80 In a report to the authorised agent on 9 January 2015, he advised Mr Vassallo could work up to five hours per day four days per week and that he had difficulty coping with modified duties and increasing hours prior to his dismissal. He had had sleep difficulties associated with left shoulder pain and stiffness. He said "Mr Vassallo was upset and depressed and concerned about the future employment tasks as he had no income as at that date".
81 A later report dated 1 September 2015 to Mr Vassallo's solicitors, he explained that Dr Marshall, the rheumatologist, had diagnosed a regional pain syndrome. There had been an ultrasound guided steroid injection and a trial of Meloxicam and NSAIDS. He later prescribed Cymbalta for anxiety and depression. As at 25 March 2015 Mr Vassallo was fit for modified duties and hours as previously discussed. He last saw him on 25 March 2015.
82 I note that on 10 November 2014 Dr Duong faxed a report of the same date to “Virginia” at Gallagher Bassett, the authorised agent in this matter. He noted Mr Vassallo's pain to the left shoulder and neck had become worse on 23 October 2014 and he had left work early.
83 On 24 October 2014 he had presented with exacerbation of pain and a lack of sleep. A consultant at Konekt had advised him to see the GP for further assessment. He gave him a small dosage of Valium as a muscle relaxant then. He summarised "Mr Vassallo is keen to continue with the return to work plan with a gradual increase in hours at a slower pace".
84 In his evidence before me Dr Duong agreed the initial X-ray report stated no abnormality was detected. He had put him on various painkillers and anti‑inflammatories. He said Mr Vassallo had a low threshold pain tolerance and the pain was not well controlled in October 2014. He was complaining of insomnia.
85 Mr Vassallo complained of not being treated fairly because he was being sacked without warning on light duties with "not enough support from his company". He also had lack of support from people at work. He did not know when stage two under the return to work plan was to start, though there was pressure on him to increase hours.
86 As at 24 October 2014, Dr Duong thought that he should continue on light duties at less hours. On 17 February 2015 he thought that he was unfit for work at all.
87 In cross-examination he said the medical certificate of 7 November 2014 indicated three hours per day for four days per week and to increase slowly on light duties. He thought that Mr Vassallo got up to five hours per day. He was unable to remember whether Mr Vassallo complained of working five hours per day.
88 Dr Sheriff, his next GP, was also called. He began treating Mr Vassallo on 27 March 2015. Five of his reports and his clinical notes were tendered to the court. Initially, he thought Mr Vassallo had “no current work capacity” as at that date because of the shoulder.
89 Dr Duong had referred him to Dr Kim Marshall. Mr Vassallo was apprehensive about the suggestion of regional pain blocks after having two previous cortisone injections.
90 Mr Vassallo had an incident in February 2016 when he fell from his bike and aggravated both neck and shoulder pain. He had been seen Dr Ibrahim, a psychiatrist, whose report I will refer to later.
91 An ultrasound on 24 May 2016 showed supraspinatus tendinopathy and impinging subacromial bursitis. At that stage Mr Vassallo had developed "well entrenched features of chronic regional pain syndrome with features of sympathetic changes". As it was not possible to get total pain relief he had significant psychological impact. In March 2016 he thought in his current state and with his educational background and given his psychological state he was unfit for any employment.
92 In his oral evidence before me he thought that Mr Vassallo was fit for alternative light duty from July 2016. He still treats him. He was concerned about pain and the lack of mobility to the left shoulder and queried whether there was rotator cuff tear because of the pain radiculopathy to the neck and arm. Mr Vassallo was also depressed.
93 Dr Marshall had also suggested pain management besides nerve blocks. He referred Mr Vassallo to Dr Ibrahim, psychiatrist, in May 2016 because he was more depressed and also referred him to Mr Ramzi Mohammad, a psychologist. He thought that Mr Vassallo had been "bullied at work" on return to work because "restrictions were not complied with and his pain levels".
94 Two reports from Kay Nickles, physiotherapist, were tendered. She treated Mr Vassallo from 27 August 2014 to 20 March 2015 for the left shoulder. When last seen he had “current work capacity” with limitations to lifting, pushing and pulling, not above shoulder height and repetitive work using his left arm. He said he also had a deterioration of his mental state making comments which I will not go into as the physiotherapist as no relevant expertise in that regard.
95 A number of reports were tendered from Dr Marshall, rheumatologist, who treated Mr Vassallo between 16 February 2015 and June 2015. He had access to X-ray, CT and ultrasound reports that I have set out before. He gave Mr Vassallo the two injections into the shoulder that I have set out as well. He believed that Mr Vassallo had a left shoulder regional pain syndrome "without significant underlying structural damage" and that he needed multi-modal input from a psychologist and pain management. Meanwhile, he did not believe at that stage Mr Vassallo was capable of full-time employment as a car detailer because of the level of pain.
96 Mr Ramzi Mohammad, psychologist, was called to give evidence and had two reports tendered. In the reports he said he had treated Mr Vassallo from 19 June 2015 for those injuries and continues to treat him. Mr Mohammad had previously treated him in respect of injuries in an earlier motor vehicle accident that I have referred to.
97 In March 2016 he performed a Beck Depression Index (BDI) assessment at a level of 51. He stated Mr Vassallo had a reactive mixed anxiety and depression manifestation due to chronic pain from a work related injury, that is the shoulder injury, at Le Mans. Mr Vassallo complained of being "exposed to bullying at work", was given duties beyond his physical capacity and upon his dismissal developed his manifestation compounded by lack of income which affected his mood negatively.
98 In August 2017 his BDI assessment had improved to 43 and he gave a similar diagnosis noting "he continues to deal with chronic pain that is causing him functional limitations as a result of his work injury". He believed his working capacity had reduced greatly by his chronic pain that was compounding his mood quality and other social factors that had arisen as a consequence of his injury. He thought him highly unlikely to participate in any pre-injury type of gainful employment.
99 In his oral evidence he was asked for the expressed basis of Mr Vassallo's anger at his employer which he said was the employer not appreciating his injury and overburdening him. There was no complaint of personal problems with others. The employer pushed him, belittling him on occasion and making negative comments. Otherwise, he confirmed the contents of his reports.
100 Two reports were also tendered from the treating psychiatrist, Dr Ibrahim, who only examined him once on 11 November 2016 on referral from Dr Sheriff. Mr Vassallo complained of not being able to do light duties because he was on medication and he had missed many medical appointments. He asked for help from work colleagues. He had recounted many stories of how he was picked on by colleagues as being disabled and he needed help to achieve his jobs. He was mocked by them and felt very demeaned, triggering sadness and anger.
101 He was terminated for the stated reason he had "revved a car" and he was sacked on the same day. He felt devastated because he lost his income and ability to do activities of daily living. He was physically limited by the injuries and had "constant pain". He could not drive for moderate or long distances or even be a passenger.
102 Dr Ibrahim referred him for psychological treatment and prescribed anti‑depressants. Mr Vassallo did not turn up for his second appointment in April 2017 and he had not seen him since. Dr Ibrahim noted he described symptoms of depressed mood, feelings of guilt, helplessness and hopelessness and disturbed sleep. He had an adjustment disorder with mixed symptoms of anxiety and depression following the described work-related incidents.
103 He made no comment on Mr Vassallo's capacity for work at all in his reports. It should be noted the summary of the work incidents was much wider and expansive than that Mr Vassallo gave to me. He did not describe asking others for help at work. He only related two specific incidents of alleged bullying, being the crutches incident and the rag incident. Otherwise, he said the bullying was people, especially Raniel, not speaking to him or ignoring him.
104 His restricted activities of daily living were not given in evidence before me and his inability to drive or even being a passenger in a car for long was not given to me in evidence. Apart from the mopping of the floor he did not relate being pushed by his employer. He was allowed to, and did in fact, take breaks. The only complaint by the employer was that he should go to appointments outside work hours and tell people if he was going early or taking a break.
105 Certainly, he did complain of difficulties performing his work on his return to work and coping with the hours. Also, he did complain of treatment by others at work in his evidence. However, this was much more limited than the apparent history taken by Dr Ibrahim, on the one occasion, or even Mr Ramzi. I note that he saw Dr Ibrahim some two and a half years after ceasing work at Le Mans.
106 That completes my summary of the evidence on behalf of Mr Vassallo. Counsel for Le Mans tendered three medical reports in support of its case together with some medical certificates, photos of the site and two earlier warning notices allegedly given to Mr Vassallo.
107 There is a report from Michael Troy, general surgeon, dated 10 March 2016. He did not examine Mr Vassallo for the purposes of that report. Apparently, he did examine him on 3 February 2015 and prepared a report dated 9 February 2015, which was not tendered to the court. The March 2016 report was to comment on the return to work plan dated 14 October 2014 and the later return to work plan of 26 November 2014 which was not seen by me at all or tendered in court either. Mr Troy said he was given “extracts” of the clinical records of Dr Duong.
108 In his March 2016 report, Mr Troy thought that Mr Vassallo was capable of performing the work and the hours set out in the return to work plan dated 14 October 2014. In his February 2015 examination of Mr Vassallo he had noted that he had restricted movements of his left shoulder as identified in that report and thus was not able to use his left arm to shoulder height or lift five kgs with the left upper limb in the two Return to Work Plans.
109 He was examined by Associate Professor Buffa, an occupational physician, on 14 November 2016. He had limited background material but had Mr Troy's first report. He took a short but adequate history from Mr Vassallo. He found considerable restriction of all movements to the left shoulder. There was some reduction of power in the shoulder muscles. He thought that the injury had not resolved and employment remained a "materially" contributing factor to the unresolved injury, his current condition and incapacity although he did not state what that incapacity was. He needed hydrotherapy two to three times per week. He noted Mr Vassallo's condition "has reportedly worsened over the last two and a half years despite physiotherapy and hydrotherapy". Interestingly, he saw no difficulty with Mr Vassallo's activities of daily living or driving or using public transport.
110 Finally, he was examined by Dr John Douglas, a psychiatrist, on 17 May 2017. He had a number of reports for the purposes of examination, but that list was not included in the report tendered to me in court.
111 He took a short history but at least noted that Mr Vassallo was left-handed. He also noted he returned to work on restricted duties after the fall at work and washed cars. He was later given other duties using his right hand only. This caused extra pain and "his bosses bullied him" (emphasis added). They said "he was useless". He kept working and tried to increase his hours and the output. However, he said that he was put off work in December 2014.
112 He was agitated at that time because he "had been bullied at work and then sacked". He had "put up with the bullying through 2014". He complained of continuing depression and unhappiness, inability to sleep because of pain, night panic attacks and irritability. He diagnosed an adjustment disorder with anxiety. He believed it arose after his return to work following a work incident in 2014. It had continued because of persistent pain and further stress and also being unable to find suitable employment. His psychiatric symptoms did not prevent him from returning to pre‑injury employment, but not at the previous place of employment.
113 That completes my summary of the defendant's evidence. After being called upon to do so, Counsel for Le Mans admitted that Mr Vassallo had been examined by Mr Robert Wilks, a psychologist, on 25 September 2015.
114 In her submissions, Counsel for Mr Vassallo submitted that he had a primary psychiatric injury because of bullying and other difficulties he had when he returned to work. She referred to the evidence and reports, in particular of Dr Duong and Dr Ibrahim, in this regard. As for the Suspension and Termination Notices, she said they had a fatal error in that the VWA and/or Le Mans had not complied with the provisions of ss.104 and 105 of the Act. There should have been further discussion between Konekt, Dr Duong and the employer as to a return to work program beyond the one only consultation. She submitted the requirement was that such consultations and necessary adjustments should continue over the course of the return to work plan.
115 The Termination Notice was predicated on the failure to return to work on full time hours which would never be appropriate for him using his non-dominant right arm only. There was no time demarcation in the job offer between stages one and two. Further, there was no hard evidence as to the actual hours worked by Mr Vassallo, in particular, after the later limitation of hours set out by Dr Duong in his medical certificates of 7 November and 20 November 2014. The hours were to increase from three hours for four days per week to five hours for four days per week.
116 Finally, as to the termination of employment for misconduct issue based on s.185, she submitted there was no jurisdiction to deal with the issue as there had not been any formal Notice of Termination. She presumably relied on s.183(2) as to the requirement for such a Notice and s.188 for the need to include reasons in the Termination Notice.
117 She said that if the court upheld there was jurisdiction to consider the s185 issue, based on s.264(2) of the Act, then I should consider the severity of the injury, his treatment, Dr Duong's evidence and Mr Vassallo's low pain threshold. She also pointed to the lack of service, or late service, of the two Warning Notices dated November 2014 and December 2014 by Le Mans.
118 Counsel for Le Mans admitted that Mr Vassallo had a continuing “current work capacity” within the meaning of the Act and agreed that Cox v TCC [2000] VCC 42 set out appropriate principles to apply in determining whether there had been a failure to make every reasonable effort to participate in a return to work plan.
119 He submitted Dr Duong had agreed to the relevant return to work plan and he had indeed encouraged Mr Vassallo to continue to increase his hours when he attended on 23 October 2014. Mr Vassallo had not complied with working the hours set out in Dr Duong's medical certificates of 7 November and 22 November 2014.
120 As for the primary psychiatric claim, he said that there was no evidence of bullying, save for the return to work pressure and the rag incident. His psychiatric condition was secondary to his physical injuries, referring to Dr Ibrahim's and Dr Douglas's opinions.
121 Finally, he submitted that it was open pursuant to s.264(2) of the Act to consider the issue of the termination of weekly payments because of the termination of his employment for misconduct pursuant to s.185 of the Act. He referred in particular to Kerridge v Monsfelt [2009] VCC 154 at para 80. Also, he referred to two matters in the Magistrates' Court in which the court dealt with a similar issue namely Parry (per O’Brien M) and Tuimaseve (per Ginnane M).
122 He considered that this court is "at large" in exercising its discretion to affect weekly payments as set out in Jarvis v Salvation Army [2016] VSCA 175. He submitted the conduct of Mr Vassallo in accelerating, revving and braking was serious and wilful misconduct having regard to the likely close proximity of people and other traffic in the area.
123 I now proceed to make my findings on the three remaining issues in this case. It is appropriate to deal with the issue of whether Mr Vassallo has a primary psychiatric injury first as any such finding will affect the two bases of terminating his weekly payments.
124 Counsel for Mr Vassallo points to a number of factors such as bullying and harassment on return to work by Raniel and others and being pushed to increase his hours and duties. She also refers to the opinions of Drs Ibrahim and Duong supporting her submission as to a primary psychiatric injury.
125 Counsel for Le Mans does not dispute a psychiatric injury but says it is secondary upon his physical injury to the dominant left shoulder.
126 As I have pointed out, there have been considerable variations to the history of alleged bullying and harassment given to the various doctors and that given to the court. At times, he referred to bullying by his bosses and at times by one workmate only. In his evidence before me he did not complain that he was being forced to increase his hours or duties by his managers or supervisors though he did to some of the doctors in this case.
127 Rather he complained to me of Raniel's conduct in the crutches incident and the rag incident and said Raniel would not speak to him and ignore him. Certainly, his history to Dr Ibrahim two and a half years later is much more expansive in this regard.
128 I accept that it is open for me to conclude that he was upset at the time of the rag incident at least. I believe that any reaction by him to any perceived harassment or bullying was of a very limited nature and duration. The constant issue for him has been the after effects of his injury. It has been the pain and related considerable restrictions, namely the loss of income, future prospects and the overall situation he finds himself in that has lead to his psychiatric problems.
129 I have referred to the reports of Mr Mohammad, Dr Douglas and even Dr Duong in this regard. I am unable to accept that he has ever had a frank primary psychiatric injury at any time. Rather there may have been flare ups in his secondary adjustment reaction with anxiety and depression at times, which do not amount to a separate primary psychiatric injury as such.
130 I now turn to consider the termination of his weekly payments on the basis he did not make reasonable efforts to actively participate and cooperate in planning for return to work. In particular, the Termination Notice referred to the failure to follow the return to work plan dated 15 October 2014 and increase his hours to full hours accordingly. It referred to the medical certificate of Dr Duong dated 15 October 2014 which referred to an increase to full hours but it did not refer to later medical certificates of 24 October 2014, 7 November 2014 and 27 November 2014, all of which limited his hours to a maximum of five hours per day for four days per week. I point out that the latter two medical certificates were, in fact, tendered by Counsel for Le Mans though they were not referred to in the Termination Notice.
131 The return to work plan of 15 October 2014 was signed off by Dr Duong initially. It allowed for a two stage process from largely sedentary work on an automatic car wash to his pre-injury job as a car detailer. There was no detail of any date for him to progress to the stage two pre-injury duties. Stage one was to run from 13 October to 9 November 2014 and would be at eight hours per day by then. This is what the Termination Notice highlights.
132 Stage one sets out that he is to restrict cleaning of vehicles with his right arm, polishing, vacuuming, shining vehicles and hubcaps with cloth and wash windows with his right arm. He was to avoid the use of the left arm above shoulder height, repetitive tasks with the left hand and avoid lifting above five kgs with his left arm.
133 As I have no evidence from Konekt I do not know whether any other doctor supported the terms of the Return to Work Plan apart from Dr Duong initially. I note the return to work plan does not refer to any other doctors.
134 One of the major problems I have with the Return to Work Plan is that, as far as I can see, no doctor refers to him being left handed, except for Dr Douglas. In any event, I query how realistic it would be for him to return to full-time car work as a car detailer, as described, with limited use of his dominant left hand in such tasks.
135 Also, the Return to Work Plan should not be seen as being "written in stone". The fact that a GP agrees at the start a worker should increase his hours to full time is not a fixed requirement. Obviously, as a Return to Work Plan progresses adjustments may well have to be made having regard to any difficulties a worker may have on return to work. This is exactly what happened in this case when the three later medical certificates in this case are considered.
136 I believe that this is what ss.104 and 105 considers when referring to consultation with the doctors. That is, return to work plans may need to be adjusted from time to time, though I doubt the need for formal consultation. There should be at least consideration of any later medical certificates supplied by doctors, including any treating doctor.
137
The defendant accepted the analysis by His Honour Judge G Lewis in
Cox v TCC(supra) as to what needs to be considered in deciding whether there have been reasonable efforts to participate in a return to work plan. There needs to be consideration of (1) the evidence of the worker and his GP; (2) medical evidence as at the time of the return to work plan; (3) the medical treatment being received and (4) the difficulties as to pain and capacity sustained by the worker at the time.
138 There is very little detail or evidence as to the dates or hours worked by Mr Vassallo from the start of the return to work plan on 15 October 2014 and his dismissal on 16 December 2014. I realise the Mr Vassallo gave evidence that sometimes he "forgot to clock on and off". However, there was no real hard and fast evidence as to the hours worked put to him, or in evidence to me, in this case. Certainly, there was some evidence that he did leave work early to go to medical appointments early in the period and did miss days at work from time to time.
139 He gave evidence that he was working up to five hours per day by four days per week until around 16 December 2014, in accordance with his GP's medical certificate of 27 November 2014. The only evidence tendered to me that he should be able to work in accordance with the 14 October 2014 return to work plan is from Mr Troy in his report of March 2016 based on an examination some 13 months before. Again, I was not supplied with a copy of his earlier report so I am unable to examine the original basis for his later opinion. Associate Professor Boffa was apparently not asked for his opinion on this issue.
140 Although Mr Vassallo did miss days of work while on the Return to Work Plan and may not have worked the strict hours required by that plan from time to time, I am satisfied that for all of the above reasons that he did make reasonable efforts to accord with his obligations under the Act as provided.
141 I accept Dr Duong's evidence as to the difficulties Mr Vassallo had in performing the return to work plan because of the pain and sleep difficulties amongst other problems. In any event, I have difficulty in accepting the return to work plan of 14 October was ever a suitable Return to Work Plan in all the circumstances for the reasons I have set out as well, both initially and after Mr Vassallo attempted to work on as required.
142 The idea that after four weeks of part-time duties he could work full-time returning to his old job with restrictions to the use of his dominant left arm, I believe was speculative at best.
143 Finally, I have to deal with the final ground for termination pursuant to s.185(1)(d) the Act, that is on the grounds of misconduct. Firstly, there is the issue as to whether the defendant can simply raise this in the Defence rather than issuing a formal notice pursuant to ss183(2) and 188 of the Act.
144 Counsel for Le Mans submits other grounds for termination of weekly payments can be considered by a court pursuant to s264(2) of the Act, if it is considering other issues as to entitlement of weekly payments.
145 In the present case, the termination based on an alleged failure to participate or co-operate in a return to work plan is properly before the court. If, in fact, a formal notice had been issued pursuant to s185(1)(d) then there is no dispute the court could have dealt with that as well.
146 To my mind, s.264(2) must be given some meaning. It allows the parties, more particularly the VWA, to have a court deal with issues that may not be the subject of consideration in isolation, for example because of the lack of a formal Notice by the VWA. Provided there is appropriate notification, it allows the parties to argue and the court to consider “any matter… relating to any termination or alteration of any entitlement to weekly payments..”.
147 I believe that this has been done in the present case. Thus, I determine that I can deal with the s.185(1)(d) issue raised in this case. I respectfully agree with the decision in Kerridge v Monsfelt (supra) at para 80.
148 Pursuant to the judgment in Jarvis v The Salvation Army (supra), I must hear all the evidence called and tendered by the parties and after receiving any relevant submission determine afresh the application for reinstatement of his weekly payments. I refer to the judgment (at p33) :-
"Consistently with ss.39 and 43 of the Act the magistrate was required to determine for himself whether or not compensation in the form of weekly payments should be paid to the applicant having regard to the objects and purposes of the Act.”
149 The Court of Appeal in that case declined an invitation to preserve the finding of termination for misconduct and remit the balance of the case back to the Magistrates' Court for determination. The Court of Appeal thought that the better view was that the relevance of the misconduct, and the weight to be attached to it, needs to be considered when the court determines whether or not to pay weekly payments. Thus, I believe that I exercise this discretion in weighing up all the evidence, especially the alleged actions constituting the misconduct, as opposed to the severity of terminating weekly payments in the circumstances of the individual case
150 The objectives of this Act are set out in s.10 of the Act which I will not repeat in detail. However, s10 (d), (e), (d) and (f) would appear to be particularly relevant to the circumstances of such a termination and probably (a) if we consider the alleged misconduct in this case.
151 Mr Vassallo's employment was summarily terminated, that is without notice, by Mr Bailey for what he said was misconduct being "reckless driving endangering life". He did not observe the alleged driving by Mr Vassallo. He said he saw the tyre marks in the photos. I do not know whether he had the same photos that I had as the parties could not identify any skid marks in the photos tendered to this court.
152 He also said it had been raining that day. The photos show a dry road except in the immediate vicinity of the car wash bay. He was told that Mr Vassallo had been seen with the "wheels spinning" on the vehicle, that is doing burn-outs sufficient to leave tyre residue on the asphalt. He said the vehicle must have been speeding for the wheels to spin. The conduct alleged in the second Warning Notice of 16 December 2014 by Julius was "doing burn-outs" and “performing excessive speed around the premises” (emphasis added).
153 However, there was only one alleged eye witness called, that is Raniel, who said he actually witnessed the driving. He said the car sped over a relatively short distance about 20 metres or so at about 20 kph and then braked suddenly, leaving the skid marks. Mr Bailey said he did not ask for, and did not receive, any version by Mr Vassallo when he telephoned him.
154 Mr Vassallo denied being asked or told about any alleged bad driving at work during that day. He denied in particular telling Julius that he "won't do it again", as alleged in the Second Warning Notice of 16 December 2014. As stated, Julius was not called to give evidence.
155 The photos tendered to the court do not show any skid marks on the ground. The court is therefore reliant on Raniel's evidence as to their placement, length and even their existence. His evidence varied from initially one metre to later four metres and then probably five metres plus according to his markings on the photos. Mr Vassallo firmly denied any speeding, spinning of wheels or sudden braking. Rather, he said that his foot slipped on the accelerator when the car was in neutral causing it to rev.
156 I have some reservations about Raniel's evidence. He stated that his work had become more stressful and with a heavier workload when Mr Vassallo was on light duties. He said he “just dealt with it” and got on with his work. However, he did agree that there was a dispute with Mr Vassallo over the rag incident. The real issue I have with his evidence is that he agreed he did not speak to Mr Vassallo after the rag incident because he was "too busy with his work” and not because of any resentment. I believe that he was not being frank in giving that evidence to me.
157 Bearing in mind the variations in his evidence as to the length of the skid marks as well as the other factors I have outlined, I am uncertain as to the credibility of his evidence. His statement that Mr Vassallo told him that he had been testing the brakes did not appear in any other evidence before me or indeed was put to Mr Vassallo.
158 At first blush I have reservations in accepting that a car braking severely from 20 kph could leave significant skid marks on a dry road, let alone five metres plus. The manner in which Le Mans failed to abide by normal HR principles of procedural fairness do not help with this issue either.
159 On the evidence before me the allegations of speeding and/or skid marks were not put to Mr Vassallo at any time prior to his dismissal. Mr Bailey said "there was no need to". Thus, the doubts as to what Mr Vassallo actually did while driving the vehicle are at least partly due to this failure on the part of Le Mans.
160 I accept Mr Vassallo's evidence that he did not receive the Warning Notice of 16 December 2014 until weeks later. The retention of warning notices on an employee's personal file without signed acknowledgement or the dates and time of attempted service is not an appropriate way of dealing with such notices.
161 I agree with the general attitude of Le Mans expressed in this case that speeding or reckless driving on its premises is a very serious issue and should lead to summary dismissal in appropriate cases. However, in the present case there was no injury to any person or damage to property alleged. The only direct evidence called by Le Mans was that of Raniel. Even if I accept his evidence on face value, there was no other person or any other property close by as to which the alleged skid put in danger.
162 Raniel said he was inside the work bay. On his evidence the driving and braking was over a relatively short distance and in a straight line. If Mr Vassallo had, in fact, been doing burn-outs the question of potential damage would have been much more significant. Thus, even if I accept Raniel's evidence at face value, any misconduct by Mr Vassallo was more towards the lower end of the scale.
163 As I said, Mr Bailey sacked him for doing “burn-outs”, that is spinning the wheels, which he did not do according to the evidence of the only claimed eyewitness.
164 The lack of evidence that I have outlined, as well as the handling of the driving issue by Le Mans, does not allow me to make any findings as to Mr Vassallo's conduct and/or driving on the day which would amount to misconduct. I do not necessarily accept Mr Vassallo's evidence in this regard. I am unable to say on the evidence before me to how and in what manner he did so drive the vehicle on 16 December 2014.
165 I now must also consider the employer's finding of misconduct having regard to the objective set out in s10 of the Act, more particularly as to his entitlement as to weekly payments.
166 In the present case Counsel for Le Mans properly conceded that Mr Vassallo has a “current work capacity”, that is he is not fit for pre-injury duties but is fit for suitable employment. Counsel for Mr Vassallo did not seek to argue that he had “no current work capacity” and certainly not lasting indefinitely.
167 Mr Vassallo has not had any surgery but has had various types of conservative treatment involving steroid injections and opiate prescriptions. He needs continuing treatment to manage his injured dominant left arm and shoulder. It is now more than three years since he injured his left shoulder. It seems to me that the questions of nerve block injections, pain management and psychiatric treatment, need to be considered further. I highlight the evidence of Associate Professor Boffa's findings as to continuing injury and the need for continuing treatment some considerable time after his termination.
168 Despite the termination of his employment for misconduct, I do not believe it appropriate to reduce or terminate his entitlement to weekly payments on all the evidence before me or, even if I accept the evidence of Raniel, on face value. His weekly payments should be reinstated having regard to s10(d) of the Act, that is for there to be appropriate compensation.
169 The uncertainties as to his driving allegedly constituting serious misconduct are further grounds for reinstatement of his weekly payments in the circumstances, even taking into account the other arguable relevant parts of s10.
170 Weekly payments are to be reinstated from the date of termination, that is 7 November 2014. He has had a “current work capacity” I believe from that time to now, save for occasional limited periods of “no current work capacity”. Pursuant to s.163 of the Act he cannot obtain weekly payments beyond the 130 week period which ceased on 27 January 2017, as I set out at the start of this decision.
171 He is entitled to an order accordingly.
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