Watson v MEGT Australia Pty Ltd
[2013] VCC 141
•5 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01207
| RICHARD WATSON | Plaintiff |
| v | |
| MEGT AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February 2013 | |
DATE OF JUDGMENT: | 5 March 2013 | |
CASE MAY BE CITED AS: | Watson v MEGT Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 141 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: Injury to the right shoulder – return to suitable alternative employment – whether the plaintiff's education, training and experience made him suitable for other forms of employment – whether the other forms of employment were “suitable employment” – whether the plaintiff should have pursued the other forms of employment – whether the loss of earnings consequences were “serious”
LEGISLATION CITED: Accident Compensation Act 1985, s134AB (38)(c), (e) and (f)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121.
JUDGMENT: Leave for the plaintiff pursuant to s134AB(16) (b) of the Accident Compensation Act 1985 to recover damages for the bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr C O’Sullivan | Slater & Gordon |
| For the Defendant | Mr B McKenzie | Herbert Geer |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 16 March 2012 by which the plaintiff applies for leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr J Mighell SC appeared with Mr C O’Sullivan of Counsel for the plaintiff, and Mr B McKenzie of Counsel appeared for the defendant.
4 The plaintiff submitted that he suffered a serious permanent impairment or loss of the function of his right shoulder.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· Dr Rillstone, general practitioner at the Casey Superclinic, gave evidence and was cross-examined;
· Dr Clayton Thomas, consultant in rehabilitation and pain medicine, gave evidence and was cross-examined;
· The plaintiff tendered an affidavit adopted by him in the witness box and signed by him in February 2013: Exhibit A;[1]
[1]The affidavit was not properly sworn. The place at which it was sworn and the date on which it was sworn were not endorsed as part of the jurat particulars. I required the plaintiff to adopt the affidavit while he was giving evidence, and required it to be separately tendered.
· The plaintiff tendered his Court Book (“PCB”), pages 4-9, 14-61: Exhibit B;
· The defendant tendered its Court Book (“DCB”), pages 9-49 and 177-195: Exhibit 1.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(c) of the Act which requires the plaintiff to prove that he has suffered a “serious permanent impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[2]
[2]Section 134AB(1); Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[3]
[3]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by ss(19)(a), ss(19)(b) and ss(38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity;
(d) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently;
(f) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined, save where the worker was under 26 years of when the injury was sustained. In those circumstances, ss(38)(e) applies.
(g) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application;
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[4] an approach which I intend to follow in the appropriate case;
(i) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[4]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
The Plaintiff's Background and the Injury
8 The plaintiff was born in December 1982 in the United Kingdom. He is now twenty-eight years of age. He migrated to Australia in 1998 when he was sixteen years of age. He is a married man.
9 The plaintiff completed Year 12 before entering the workforce. I will return to his working history later in these reasons. For the time being, it is relevant to refer to the work he was performing at the time he was injured.
10 In March 2008, the plaintiff commenced employment with the defendant as an apprentice carpenter. The system for training apprentices employed by the defendant was that it provided the training, and contracted the plaintiff out to various worksites, where I assume the plaintiff obtained his practical experience.
11 On 16 December 2008, the plaintiff was working at a building site on Burwood Road, Hawthorn. The building work comprised a unit development. The plaintiff was carrying what he described as a blue board. He tripped on rubbish/off cuts which had been left on the floor of the rear where he was working. He tripped and fell onto the concrete floor onto his right shoulder.
The Plaintiff's Medical Treatment
12 The plaintiff experienced pain in his right shoulder and a sensation of numbness extending down his right arm into his hand and fingers. He attended at the Epworth Hospital Emergency Department on 17 December 2008. He subsequently attended, and was treated by, medical practitioners at the Casey Superclinic.
13 It is not clear to me what treatment the plaintiff was provided with at the Epworth Hospital, nor initially by the medical practitioners at the Casey Superclinic. According to the plaintiff, he was referred to Mr Coulson, physiotherapist, and was later referred to Mr Evans, orthopaedic surgeon, by Dr Breger, general practitioner, who was one of the medical practitioners at the Casey Superclinic.
14 Mr Evans first saw the plaintiff on 11 February 2009. The plaintiff told him that he developed immediate pain in his right shoulder following the occurrence of the incident, and subsequently, a dead feeling in his right arm with intermittent sensory changes in his right index finger and thumb. On examination, Mr Evans found a limited range of movement in all directions of the right shoulder and a painful rotator cuff, but no abnormality was disclosed on plain x-rays or on ultrasound. However, Mr Evans considered that the plaintiff may have suffered a labral tear in his right shoulder.
15 Mr Evans referred the plaintiff to have an MRI scan which was undertaken on 18 February 2009. He then reviewed the plaintiff on 24 February 2009. He was of the opinion that the MRI confirmed good structural integrity of the right shoulder, but demonstrated marked subacromial bursitis. He gave the plaintiff an injection of cortisone and local anaesthetic into the subacromial space and referred him to have physiotherapy in order to improve his range of motion and strength.
16 Mr Evans reviewed the plaintiff on 6 May 2009. He recommended that the plaintiff undergo a hydrodilatation which was undertaken on 20 May 2009. The plaintiff was reviewed by Mr Evans on 20 July 2009. The plaintiff told him that the pain in his right shoulder had improved for some weeks, but it then returned. Mr Evans gave the plaintiff another cortisone injection into the subacromial space. The plaintiff reported no improvement. Mr Evans recommended that he undergo surgery.
17 On 28 August 2009, Mr Evans undertook a right shoulder arthroscopy and subacromial decompression. He found some abnormalities in the plaintiff's right shoulder which led him to perform a bursectomy followed by a resection of the coracoacromial ligament and a bony acromioplasty. Mr Evans reviewed the plaintiff, and then referred him back to Mr Coulson for further physiotherapy.
18 Mr Evans reviewed the plaintiff on 4 November 2009 and then again on 31 May 2010. He told him that he was experiencing ongoing pain in the superior aspect of his right shoulder and localised pain in his AC joint. Mr Evans referred the plaintiff to have a second MRI scan which was undertaken on 13 May 2010. It demonstrated inflammation and degenerative changes in the AC joint. Mr Evans advised the plaintiff to undergo further surgery to excise the AC joint in the hope that it would improve the plaintiff’s symptoms. That surgery was undertaken on 8 June 2010. At the operation, Mr Evans noted that the AC joint was visibly degenerated. The contents of the joint were exercised, along with 6 millimetres of the distal clavicle.
19 Mr Evans reviewed the plaintiff on 24 August, 9 November and 14 December 2010. The plaintiff continued to report pain and weakness in his right shoulder. Mr Evans gave the plaintiff another cortisone and local anaesthetic injection to try to settle the pain of his right shoulder. It improved the plaintiff’s symptoms significantly.
20 Mr Evans was ultimately of the opinion that the prognosis for the plaintiff's right shoulder was only fair. He suspected that the plaintiff had a predisposition to tendinitis in the right shoulder and that repetitive heavier overhead manual work might result in the condition of his right shoulder recurring. He suggested that the plaintiff undergo further physiotherapy and exercise to maintain strength his right shoulder and to minimise the risk of recurrence.
21 Mr Coulson provided the plaintiff with physiotherapy following the episodes of surgery. Despite the efforts of Mr Coulson, the plaintiff reported to him that he had a nagging ache and burning pain around the AC joint despite the surgery, and that the pain was fairly constant and was not responding to treatment. By June 2011, Mr Coulson reduced the plaintiff’s treatment to once a month to review his exercise program and his progress. He did not believe that physiotherapy could offer the plaintiff much, and I assume he meant in terms of improving his condition any further.
22 Dr Rillstone, a medical practitioner at the Casey Superclinic, became the plaintiff’s principal general practitioner at that clinic. He referred the plaintiff to Dr Clayton Thomas, who first saw the plaintiff on 7 July 2011. By the time the plaintiff saw Dr Thomas, he was in receipt of prescriptions for significant painkilling medication, namely, Tramadol and Endep to help him sleep, Celebrex and occasional Tramadol during the day for pain relief. On examination, Dr Thomas found the plaintiff's right shoulder movements were well preserved but he found marked mechanical allodynia.
23 Dr Thomas was of the opinion that the plaintiff was suffering from a centralised pain syndrome. The plaintiff told him that he was suffering from significant pain, aching and dysfunction around his right shoulder. Dr Thomas referred the plaintiff to the Victorian Rehabilitation Centre for pain management. He gave the plaintiff a trial of Gabentin, 300 milligrams at night initially. He increased the dosage to 900 milligrams at night. He reviewed the plaintiff on 18 August 2011, when the plaintiff told him that the dosage had improved his quality of sleep, but that he still had irritability around his shoulder during the day and as the day went on.
24 Dr Thomas reviewed the plaintiff on 21 February 2012. On that occasion, the plaintiff told him that his pain was worsening and that he had numbness in his index finger and thumb. On examination, Dr Thomas found some reduced sensation in the index finger and thumb and a weakly positive brachial plexus stretch test. He referred the plaintiff to have an MRI scan which was undertaken on 13 March 2012, and then he reviewed him on 29 March 2012. The MRI scan was normal.
25 At the time of writing a report dated 16 December 2012, having seen the plaintiff on 11 December 2012, Dr Thomas had prescribed the plaintiff Gabapentin, 600 milligrams in the morning, 600 milligrams at midday and 900 milligrams at night. The plaintiff told Dr Thomas that he was able to work with that dosage, and that it had settled down the pain in his right shoulder girdle. At that stage, the numbness in his right index finger was not a major issue. He was also prescribed Endep at night, and Tramadol slow-release twice daily.
26 Dr Thomas was of the opinion that the plaintiff had suffered an injury involving the nerves around his right shoulder, and that he was likely to be suffering from some form of centralised pain syndrome with a neuropathic component.[5] In his report dated 14 December 2012, Dr Thomas also noted that the plaintiff was suffering from marked mechanical allodynia with some wasting and dropping of his right shoulder when a comparison was made with his left shoulder.[6]
[5]PCB 33 and 36
[6]PCB 33
27 Before turning to the cross-examination of Dr Rillstone and Dr Thomas, it is relevant to describe the work which the plaintiff undertook following the occurrence of the incident. He returned to work in January 2009. He was unable to cope with his normal duties. He was given administrative work and he continued to attend trade school. He was then off work after having the first episode of surgery. He then returned to work in November 2009. He tried to return to work “on the tools”, but lasted two or three days because of an increase in right shoulder pain. He returned to undertaking administrative work. He was then off work again after the second episode of surgery. He returned to work in March 2011. He attempted to return to work “on the tools” again, but lasted only a few weeks.
28 The plaintiff completed his apprenticeship on 6 August 2011. He formed the opinion that he could not work as a carpenter. He also received advice from his treating medical practitioners that he should seek alternative work. He was able to obtain work as a trainee detailer/estimator for Company Truss in Pakenham. He is still employed by that organisation on a full-time basis. The work involves entering data into a computer which then designs trusses.
29 The preponderance of the medical opinions are to the effect that the plaintiff cannot return to work as a carpenter. That was the opinion of Dr Thomas[7] and medico-legal examiners, Dr Davison, occupational physician, who examined the plaintiff on 28 June 2011;[8] Mr Shannon, orthopaedic surgeon, who examined the plaintiff on 15 July 2011;[9] Mr Polke, orthopaedic surgeon, who examined the plaintiff on 21 June 2012;[10] Dr Middleton, occupational health and rehabilitation consultant, who examined the plaintiff on 17 January 2013,[11] and Mr O'Brien, orthopaedic surgeon, who examined the plaintiff on 22 January 2013.[12]
[7]PCB 32
[8]DCB 38
[9]PCB 28
[10]DCB 12
[11]PCB 48
[12]PCB 59
30 The most recent medico-legal opinions relevant to a diagnosis of the plaintiff’s injury have been provided by the following medical practitioners:
· Mr Polke was of the opinion that the plaintiff may be suffering from a suprascapular nerve entrapment syndrome. He was of the opinion that it was necessary to place significant restrictions on the plaintiff's capacity to undertake manual work.[13]
[13]DCB 11-13
· Dr Middleton was of the opinion that the plaintiff was suffering from a dysfunctional right rotator cuff with associated scapular instability and weakness and he also believed that he had residual neuropathic pain with involvement of the C7 nerve root and a Chronic Pain Syndrome centred around the right acromioclavicular joint.[14] He had a lot more to say about the restrictions on the plaintiff's capacity to work, which I will deal with later in these reasons.
· Mr O'Brien was of the opinion that the plaintiff showed signs of persisting adhesive capsulitis complicated by an ongoing active acromioclavicular joint inflammation. He, likewise, considered that the plaintiff needed significant restrictions placed on his capacity to undertake manual work.[15]
[14]PCB 53
[15]PCB 59
Cross-Examination
31 Mr McKenzie cross-examined the plaintiff, Dr Rillstone and Dr Thomas. One issue which Mr McKenzie raised through his cross-examination was that the plaintiff has education, training and experience sufficient to undertake one of the jobs referred to an NES Vocational Assessment Report which was completed by a rehabilitation consultant on 7 March 2011. The particular occupations are those of accountant, sales representative, accounts clerk and loans officer.[16]
[16]DCB 185
32 Furthermore, Mr McKenzie cross-examined Dr Rillstone and Dr Thomas on whether the use of Gabapentin would cause the plaintiff interference with his concentration, and he cross-examined Dr Thomas on a report he provided dated 14 December 2012 in which Dr Thomas proposed that the plaintiff had other treatment options. The purpose of that cross-examination was to establish that the consequences contended for by the plaintiff could be ameliorated by that treatment returning the plaintiff to a better level of functioning.
33 Before the plaintiff commenced his apprenticeship with the defendant, he completed an Advanced Diploma in Accounting at the Chisholm TAFE over two years. He subsequently obtained work with the Department of Education and Training for a few months carrying out auditing and office duties. He left that employment and worked for Krispy Kreme Donuts at the Fountain Gate Shopping Centre for about a year as a supervisor with a production team. In about May 2007, he worked for Ridley Agriproducts in Pakenham for a few months in accounts payable.
34 Mr McKenzie put to the plaintiff that he could work as an accountant, sales representative, accounts clerk and loan officer. The plaintiff said that he could not work in any of those forms of employment because he did not have the qualifications or experience, and because of the medication he presently takes, his concentration is impaired, and from time to time during the working day he momentarily nods off. The plaintiff said that he has suffered an impairment of his concentration and suffers the nodding off since his medication dosage was increased. The effect, apart from the impairment of his concentration and nodding off, was described by the plaintiff as a difficulty with focusing on tasks and the risk of making mistakes.[17]
[17]Transcript 13-14
35 Mr McKenzie challenged the plaintiff's evidence that the medication had an adverse effect upon him, and continued that challenge in his cross-examination of Dr Rillstone and Dr Thomas. Mr McKenzie made the point that neither doctor referred to the complaints made by the plaintiff of an impairment of his concentration or nodding off, but when the proposition was put to them directly, they both said that it was inevitable that there would be side-effects of the kind described by the plaintiff. Dr Thomas described the side-effects as causing sedation and cognitive clouding.[18] It was my impression that both doctors recalled the plaintiff mentioning the side-effects he was experiencing.
[18]Transcript 40, and Dr Rillstone at Transcript 59
36 Mr McKenzie cross-examined Dr Thomas that the treatment which Dr Thomas proposed in his report dated 14 December 2012 was likely to provide the plaintiff with an amelioration of his symptoms. Mr Thomas did not accept that the treatment options might lead to such a result. He described the treatment options as “crystal ball gazing” which I understood to mean that Dr Thomas was looking for options which, if utilised, might give the plaintiff some degree of relief and return to better functioning.[19]
[19]Transcript 50
37 I accept the plaintiff's evidence that due to his high level intake of medication, and in particular, Gabapentin, his mental functioning is impaired to the extent that he finds it difficult to concentrate on tasks in his present job, and momentarily nods off often enough for it to be a noticeable problem for him. I am fortified in reaching that conclusion by the evidence of Dr Rillstone and Dr Thomas, who both said that the medication the plaintiff is taking has inevitable side-effects consistent with the side-effects suffered by the plaintiff, and in particular, and interference with his concentration. I do not accept the fact that they did not record any complaints of the plaintiff in that respect in their reports is significant, because it was my impression that both were aware that the plaintiff was suffering from those side-effects.
38 I do not accept the submission made by Mr McKenzie that I should not be satisfied that the degree of the consequences presently endured by the plaintiff are permanent in the light of the report of Dr Thomas dated 14 December 2012 in which he proposed other treatment options. The prospect of any of those treatment options succeeding is brought into stark reality by the evidence of Dr Thomas that he is “crystal ball gazing” when endeavouring to determine what he might next be able to offer the plaintiff by way of treatment that might return to a better level of functioning. I hardly think that evidence supports the submission made by Mr McKenzie. I accept the evidence of Dr Thomas without question in that regard.
39 The cross-examination of the plaintiff that he could undertake other jobs of accountant, sales representative, accounts clerk and loans officer was based upon the NES Vocational Assessment Report and the opinion of Mr Polke. The hypothesis submitted by Mr McKenzie is that each of the occupations of accountant, sales representative, accounts clerk and loan officer constitutes suitable employment for the plaintiff. If that is so, the result is that when an assessment is made of the plaintiff's loss of earning capacity he is capable of earning a gross weekly sum which would see his application relevant to loss of earning capacity fail.
40 I think the plaintiff dealt with the propositions put to him by Mr McKenzie very fairly. It was my strong impression that the plaintiff’s work experience was regarded by him as being rather modest when compared with the tasks required of a person working as an accountant, sales representative, accounts clerk and loans officer. In relation to the work of a loans officer, the plaintiff said he would not know where to begin in a job of that kind. My overall impression of the plaintiff's evidence was that when a comparison is made between what he is doing now and what those jobs might involve, he did not have an understanding of what those jobs involved, and otherwise did not consider he could undertake them.[20]
[20]Transcript 25-29
41 I think there are some significant flaws in that hypothesis. Firstly, in relation to the submission that the plaintiff could be an accountant, the author of the NES Vocational Assessment Report operated on the assumption that the plaintiff has an accounting qualification. He does not. He has a Diploma in Accounting from a TAFE institution and has otherwise never worked as an accountant. It is common knowledge that to be an accountant one needs a degree and post-degree study to obtain the qualification of Certified Practising Accountant. There is no evidence adduced by the defendant which permits me to determine what the diploma entailed, and what extra study the plaintiff would need to undertake to obtain a degree in accounting and to become a Certified Practising Accountant.[21]
[21]The evidentiary onus rests with the defendant to adduce evidence that there are other jobs for which the plaintiff is suited: Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at paragraph 115-116. For reasons which will become plain, I am not satisfied that the evidentiary onus has been discharged.
42 Secondly, the plaintiff has no history in his education, training and experience as a sales representative in building supplies. His education, training and experience as a carpenter would very probably outfit him in understanding products and building supplies, but there are physical demands in that role referred to by the author, but not explained. Given that there are significant restrictions placed upon the plaintiff's capacity to undertake manual work by Mr Polke, Mr Middleton, Mr O'Brien, and also by Dr Rillstone,[22] I do not accept that the description of what the job entails permits me to determine whether it is suitable employment or not.
[22]PCB 26a
43 Thirdly, the plaintiff's qualification in accounting might well outfit him to be an accounts clerk. The job description is that the tasks involved are “monitor creditor and debtor accounts, and undertaking related routine documentation”. I do not understand what “undertaking related routine documentation” means, unless the word “monitor” should be read as preceding that sentence. Mr Mighell submitted that there was an obvious absurdity in the description of the income of an accounts clerk of $1,820 doing what appears to be simple accounts clerk work when the income relevant to an accountant is described as $1,316. However, the evidence was tendered without objection.
44 Fourthly, the plaintiff's qualifications do not appear to qualify him to be a loans officer. The job description is to “analyse, evaluate and process credit and loan applications”. It is not something the plaintiff is qualified to do by training, education and experience.
45 Fifthly, it would appear that the author of the report considered that obtaining the opinion of Dr Rillstone was of some importance, because at the end of each job description the author has recorded the following observation “Given that IPAR currently has no authority to contact Dr Rillstone, IPAR was unable to obtain the Doctor’s medical opinion on the suitability of this employment option”. No effort was made by the defendant to obtain such an authority or to have the plaintiff assessed by a medical practitioner expert in occupational health and rehabilitation to drill down into what each of those jobs involved to determine whether they are suitable forms of employment for the plaintiff, given the nature and extent of the restrictions placed upon him by Mr Polke, Dr Middleton, Mr O'Brien and also Dr Rillstone.
46 The jobs were referred to Mr Polke for him to offer an opinion as to whether any of them were suitable. Mr Polke considered that the plaintiff could work as an accountant after doing some refresher retraining, and otherwise he could work as a sales representative, accounts clerk and loans officer. To describe obtaining a degree and becoming a Certified Practising Accountant as refresher training is flawed, because it either means that Mr Polke was led to believe that the plaintiff has an accounting qualification consistent with that of a Certified Practising Accountant, and therefore, only needing refresher training, or he has completely misunderstood what qualifications an accountant requires.
47 Mr Polke does not appear to have interviewed the plaintiff to determine with more precision the nature and extent of his education, training and experience which would outfit him to be a sales representative, accounts clerk and a loans officer. He simply accepted those vocational options on face value.
48 I do not accept the opinion of Mr Polke:
· Firstly, I accept the evidence of the plaintiff that his education, training and experience are limited to the qualifications he obtained before commencing employment with the defendant, and also to the nature and extent of the jobs in which he worked both before and after he worked for the defendant.
· Secondly, I accept the plaintiff's evidence that the medication which he must use for pain relief does interfere with his concentration and does cause him to nod off. The plaintiff gave me the impression that the degree of interference with his concentration is a serious worry to him, and I gathered from the way in which he gave that evidence that it is a significant problem for him. I am fortified in accepting the plaintiff's evidence in that regard because of the evidence of Dr Rillstone and Dr Thomas of the inevitable consequences of taking that medication. Their evidence confirms what the plaintiff says about the effects of the medication completely.
· Thirdly, although Mr Polke obtained a history from the plaintiff of the use of medication when he last examined the plaintiff on 21 June 2012,[23] and, in particular Gabapentin, at the dosage prescribed by Dr Thomas, he does not appear to have ascribed to that dosage the inevitable consequence of interference with the plaintiff’s concentration. The history taken by Mr Polke on that occasion is very short. It may be that the plaintiff did not inform him of the adverse effects of the medication. However, it is a significant factor which Mr Polke did not have at his disposal when opining that some of the jobs referred to in the NES Vocational Assessment Report were suitable forms of employment for the plaintiff.
[23]DCB 9-11
49 Dr Middleton, on the other hand, obtained a very lengthy history from the plaintiff of his current medical condition, current symptoms, current treatment and current activities before undertaking an examination of the plaintiff with the use of the relevant radiology. He also had at his disposal the first affidavit of the plaintiff and the NES Vocational Assessment Report. Dr Middleton then dealt with each of the jobs which were referred to by Mr Polke. He was aware of the adverse effects upon the plaintiff of the medication prescribed by Dr Thomas. Dr Middleton considered the NES Vocational Assessment Report was seriously flawed because the author of the report had not obtained any medical advice from the plaintiff’s treating medical practitioners. Furthermore, he provided his understanding of the difficulties created by the use of Gabapentin. He said “Such medication is known to have side-effects, in particular central nervous system side-effects, including drowsiness and reduced mental performance”
50 It is clear from the lengthy report provided by Dr Middleton, and the attention he paid to the jobs which were referred to Mr Polke, that he did not consider any of them suitable for the plaintiff.[24] I accept the plaintiff's evidence that he would be fit to undertake those jobs as suitable employment, and I accept the evidence of Dr Middleton that they are not suitable.
[24]PCB 54-55
51 The submissions made by Mr McKenzie raise a point of interest. Essentially, Mr McKenzie submitted that even though the plaintiff is undertaking suitable employment, I should not stop there and use the gross weekly income earned by the plaintiff to determine whether he succeeds or fails in his claim for loss of earning capacity, but that I should look at the plaintiff's education, training and experience to determine whether there are other forms of employment which are also suitable. I agree with that submission, but it all depends on the particular facts of the case to hand.
52 I do not accept that the thesis underwriting the submission applies to the plaintiff. The plaintiff had set his mind to a career as a carpenter in the building industry. In the course of endeavouring to find alternative employment it is understandable why the plaintiff looked for employment through the prism of his qualifications and experience as a carpenter.
53 I do not accept that the approach taken by the plaintiff was anything other than utterly reasonable, proper and connected to the most recent and appropriate qualifications and experience which he had available to him to exploit in his endeavour to obtain suitable employment. I think the other forms of employment are not suitable for the reasons I have advanced. In summary, I think the description of the jobs in the NES Vocational Assessment Report are flawed for reasons which I have advanced. I prefer the evidence of Dr Middleton regarding their suitability given that he obtained a history of the adverse affects the medication taken by the plaintiff which I think is a critically important factor which must be included in an assessment of whether employment as suitable or not.
54 Furthermore, the author of the NES Vocational Assessment Report did not obtain, or indeed take any reasonable steps to obtain, medical advice from the plaintiff’s treating medical practitioners in relation to whether any of those jobs were suitable for the plaintiff. The flawed nature of the description of those jobs was then provided to Mr Polke, who did not enquire of the plaintiff in any degree of detail whether the plaintiff was in actuality fit to undertake those forms of employment given his education, training and experience, and the nature and extent of impairment caused by the injury to his right shoulder and the secondary consequences of using the medication prescribed by Dr Thomas.
Disposition
55 I propose to deal with the plaintiff's application relevant to loss of earning capacity first. Having considered the evidence and the submissions made by Mr McKenzie and Mr Mighell, I have concluded that the plaintiff must succeed with this part of his application.
56 I have dealt with the reasons why I consider that the jobs advanced by the defendant as suitable employment are not suitable. I have also dealt with my acceptance of the plaintiff's evidence of the impairment of function of his right shoulder, and the medical evidence relevant to the work restrictions which necessarily must be imposed upon the plaintiff given the nature and degree of the impairment of the function of his right shoulder. I have also dealt with why it is that I consider that the submission made by Mr McKenzie that whilst the plaintiff’s present employment is suitable employment, that the other jobs are not suitable.
57 On the basis of the findings I have made in favour of the plaintiff, I am led, therefore, to conclude comfortably that the plaintiff has suffered an impairment of his earning capacity which is at least very considerable. His present gross wage is $43,000 gross per annum ($826.92 gross per week). The plaintiff's “without injury” gross weekly wage is $1,598.11. A calculation of 60 per cent of his “without injury” gross weekly wage is $958.97. It can be seen, therefore, that the plaintiff has satisfied the statutory test relevant to loss of earning capacity.
58 I have already referred to Advanced Wire & Cable[25] which provides that a finding that an application for loss of earnings capacity consequences is serious does not necessitate a separate finding that the application for pain and suffering consequences is serious.
[25]supra
Conclusion
59 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the defendant.
60 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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