Whiteman v Victorian WorkCover Authority
[2017] VCC 11
•9 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-14-02793
| PETER WHITEMAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 January 2017 | |
DATE OF JUDGMENT: | 9 February 2017 | |
CASE MAY BE CITED AS: | Whiteman v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 11 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the spine – aggravation of pre-existing degenerative changes – pain and suffering – loss of enjoyment of life – pecuniary disadvantage
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; R J Gilbertson v Skorsis [2000] VSCA 51; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Harris v DJD Earthmoving Pty Ltd [2015] VSCA 188; Poholke v Goldacres Trading Pty Ltd & Ors [2016] VSCA 232; Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Nightingale with Mr L Allan | Arnold Thomas and Becker |
| For the Defendant | Mr R Stanley | IDP Lawyers |
HER HONOUR:
Preliminary
1.The plaintiff worked as a delivery driver for Pace Farm Distribution Pty Ltd (“Pace Farm”), delivering eggs to customers. During the course of his employment in 2010, the plaintiff suffered an aggravation of a pre-existing lower back injury.
2.This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) and the plaintiff seeks leave to claim damages for both pain and suffering and loss of earning capacity. The body function said to be impaired is the functioning of his spine.
1Mr M Nightingale and Mr L Allan of counsel appeared for the plaintiff and Mr R Stanley of counsel appeared for the defendant.
2Only the plaintiff was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my Judgment.
Background
3 The plaintiff is 57 years of age. He lives with a number of housemates, on a rural property owned by a friend in the Bendigo area.[1] The plaintiff attended school until Year 10, at which time he left to undertake an apprenticeship in carpentry. After qualifying, the plaintiff obtained employment with the Commonwealth of Australia, as a maintenance worker within the Department of Defence.
[1]Plaintiff’s Court Book (“PCB”) 19-20
4 On 20 July 1994, during the course of his employment with the Department of Defence, the plaintiff suffered an injury to his lower back when loading a compressor onto the tray of a truck (“1994 injury”).[2] Following this incident, the plaintiff attempted to continue on light duties, but was forced to cease work after two weeks as his pain was so severe.[3] The plaintiff was then referred to orthopaedic surgeon, Mr Miron Goldwasser. He performed a CT scan, which demonstrated the plaintiff was suffering left-sided L5-S1 disc protrusion.[4]
[2]PCB 1
[3]Defendant’s Court Book (“DCB”) 36
[4]DCB 36
5 On 21 November 1994, Mr Goldwasser performed a surgical decompression of the plaintiff’s left S1 nerve root, which involved a partial L5-S1 laminectomy and a partial facetectomy of the L5-S1 facet joint.[5]
[5]DCB 40
6 Approximately one month after the surgery, the plaintiff returned to work on light duties and, after a second month, was able to resume his pre-injury duties as a maintenance carpenter. [6] On the advice of Mr Goldwasser, however, he tried to avoid undue heavy lifting, bending and stooping in such work.[7]
[6]PCB 1-2
[7]DCB 50 and Transcript (“T”) 18, Line(s) (“L”) 3-12
7 Mr Goldwasser continued to review the plaintiff on an occasional basis in 1995 and 1996, and noted some residual discomfort in the plaintiff’s back and at times a numbness and pain in the right thigh.[8] While the plaintiff accepted the history recorded in Mr Goldwasser’s contemporaneous medical reports, he could not recall suffering on the right side being a problem at that time.[9]
[8]DCB 41 and 48
[9]T17, L2-16
8 The plaintiff sought compensation in relation to the 1994 injury and, as part of the assessment of that claim, was examined by orthopaedic surgeon, Mr Ian Shumack, in February 1997. In his report dated 12 March 1997, Mr Shumack noted that the plaintiff continued to experience lower back pain and left lower limb aching pain, particularly with prolonged standing or when fatigued.[10] Mr Shumack also noted the plaintiff had experienced numbness in the front of his right thigh, usually when his back pain was worse.[11] The plaintiff said he could not recall such right-sided pain, but he accepted the report as correct.[12]
[10]DCB 33
[11]DCB 33
[12]T20, L21-31
9 The plaintiff continued working as a maintenance carpenter for the Department of Defence until he was made redundant in approximately 1997.
10 The plaintiff then obtained work as a truck driver for numerous employers. In 2004, he obtained a placement as a delivery driver with Pace Farm through labour hire company, Adecco. He continued in such employment until April 2008, at which time he became a direct employee of Pace Farm.[13]
[13] PCB 2
11 Prior to suffering further injury to his lower back in February 2010, the plaintiff had suffered some intermittent lower back problems, which he described as minimal.[14] He accepted that, while such problems were ongoing, they did not cause him any problems at work nor require him to take any significant time off. The only recorded date for which the plaintiff’s pre-existing lower back injury caused him to be absent from work was 2 December 2009, when he was certified unfit for work “as a result of ongoing stiffness in his back”.[15]
[14]PCB 1
[15]PCB 7
12 After the 1994 injury, the plaintiff ceased playing recreational activities such as volleyball and cricket.[16] However, he still enjoyed playing golf and generally played 18 holes approximately every two weeks.[17] He also played pool at a competition level approximately six days per week.[18]
[16]DCB 27
[17]PCB 8
[18]PCB 15
13 The plaintiff also has a long history of high blood pressure and diabetes, for which he receives treatment from a local general practitioner in Bendigo. The plaintiff said that both these conditions are controlled with medication, and that neither has affected his work capacity. No report was tendered from this general practitioner.
14 The plaintiff was also diagnosed with a renal condition, for which he took medication for a period of time. He no longer takes such medication and no longer suffers any renal complaints.[19]
[19]T63, L6-13
Injury and its consequences
15 On 18 February 2010, during the course of his employment, the plaintiff was required to clean out a blocked drain. Whilst lifting one of the steel grates, the plaintiff felt a click in his lower back which caused him to experience lower back pain.[20]
[20]PCB 2
16 The following day, the plaintiff attended upon general practitioner and specialist occupational physician, Dr Joseph Slesenger. He obtained a history from the plaintiff that after lifting a grate, he had developed low back pain radiating to his right buttock and right upper leg.[21] Dr Slesenger provided the plaintiff with analgesics and anti-inflammatory medication and referred him for physiotherapy treatment.
[21]PCB 24
17 After approximately one week, the plaintiff returned to work on light duties.[22] As part of his alternate duties, the plaintiff was required to drive a van and make light deliveries to retail customers. The plaintiff said he would deliver one, two or three boxes of eggs to such customers, with each box containing 15 dozen eggs and weighing approximately 15 kilograms.[23]
[22]PCB 29
[23]PCB 3
18 In approximately May 2010, the plaintiff suffered further lower back pain when he was required to deliver a box containing 15 dozen eggs to a customer, and had to squeeze through a narrow space at the customer’s premises. After that incident, the plaintiff was put on truck driving duties and was provided with a jockey to do the heavy lifting.[24] The plaintiff said this initially involved him driving a truck with a hydraulic tailgate. However, after it broke down and was sent for repairs, the plaintiff was required to drive a replacement truck, which did not have a hydraulic tailgate.
[24]PCB 3
19 On 10 September 2010, the plaintiff was working alone, as the jockey assigned to work with him had called in sick. Whilst delivering a pallet of eggs to a customer, the plaintiff again experienced an increase in lower back pain.[25]
[25]PCB 4-5
20 The plaintiff then had a few days off work, before returning on light duties, working about two hours a day, five days a week.[26] On 20 September 2010, while at work, the plaintiff then suffered a further increase of lower back pain. He had a week off work and, upon returning on 27 September 2010, he was told to go home. The following day the plaintiff was advised that his employment was terminated.
[26]PCB 5
21 Prior to the plaintiff’s termination of employment, he said that he felt he was being harassed by his employer.[27] He discussed his concerns with Dr Slesenger, who referred him to psychologist, Brian Lowe, for some counselling.[28]
[27]T24, L30-31
[28]PCB 38
22 After ceasing work, Dr Slesenger continued to review the plaintiff and provide him with certificates of capacity.
23 On 15 July 2016, an MRI scan was taken of the plaintiff’s lumbar spine. It demonstrated disc bulges at L3-4, L4-5 and L5-S1, and noted that at L4-5 there is contact with the L5 right and left nerve roots, and that at L5-S1 there is a disc protrusion impressing the left S1 nerve root.[29]
[29]PCB 171 and 170B
24 In late January 2013, after being trained in security work, the plaintiff obtained casual employment with MSS as a security guard. His first job involved working at a music festival at Flemington Racecourse, where he was required to sit on a chair near the horses’ stables, in order to prevent concert visitors from entering that area. He later worked at the Grand Prix, as well as at Flemington Racecourse for race meets. At such events, the plaintiff was required to direct pedestrian traffic and search bags.[30] The plaintiff said that when the Grand Prix was on, he was not able to work every day of the event due to increased lower back pain.[31] Such security work was casual and irregular, in that such events were not held on a daily, or even weekly basis.
[30]PCB 12
[31]T32 ,L9-11
25 MSS later placed the plaintiff at the Maribyrnong Detention Centre (“Detention Centre”) to work as an overnight security guard. The plaintiff said each shift ran for 12 hours, and that while this required him to walk a 25 minute lap of the Detention Centre every hour, he was otherwise able to sit down and rest.[32] From January to April 2014, the plaintiff worked regular night shifts at the Detention Centre, working between 48 and 72 hours a fortnight. The ordinary rate of pay was $18.95 per hour, but with weekend and overnight penalty rates, the plaintiff earned an additional sum each shift.[33] Over this period, the plaintiff worked an average of 29.14 hours per week and earned on average $925 per week.[34]
[32]T33, L 22–31, T34, L1-12
[33]DCB 165-173
[34]T96, L4-13
26 The plaintiff lived in Bendigo throughout the time he worked at the Detention Centre and said that it took approximately two hours to drive to and from work each day. The plaintiff said he would sometimes stay with his cousin, who lived in Melton, to minimise the long travel.[35]
[35]T38, L14-17
27 The plaintiff said that although the work was easy, he found it difficult to frequently work the 12 hour shifts. In April 2014, the plaintiff said he was having difficulty keeping up with the work due to his back pain.[36]
[36]PCB 12
28 Changes were made in the requirements of security staff at the Detention Centre, such that the guards were required to undergo further training, including training in batons and hand cuffs, to enable the physical restraint of detainees when required.[37] The plaintiff felt that he would be unable to perform such work and so did not undergo the further training. He did not discuss this with any of his doctors, but made the decision based on his own assessment of his lower back pain at that time.[38]
[37]PCB 13
[38]T42, L25-28
29 The plaintiff last worked for MSS in about March 2015, during the Autumn Carnival at Flemington Racecourse. Over the course of this eight hour shift, the plaintiff was required to stand and check peoples’ bags. The plaintiff said that at the end of the shift his back was “killing”[39] him, and that he had severe lower back pain with pain radiating into his right leg.[40]
[39]PCB 13
[40]PCB 13
30 The plaintiff said that, at this time, his security licence was suspended and that this was, in part, the reason he did not obtain further work with MSS. The plaintiff said he subsequently renewed his licence, but has still not obtained any further security work.
31 Centrelink arranged for CVGT and Axis Employment to assist the plaintiff in finding employment.[41] He applied for numerous jobs, including as a taxi driver and bus driver,[42] but has not obtained any such employment.
[41]PCB 13
[42]T49, L24-27
32 In late 2016, Dr Slesenger certified that the plaintiff was unfit to undertake any work. This has been accepted by Centrelink such that, for a six month period, the plaintiff does not need to apply for any jobs. This situation is to be reviewed in April 2017.[43]
[43]T76, L5-11
33 The plaintiff has difficulty sleeping due to his lower back pain. He said he finds it difficult to get comfortable, and that he frequently wakes at night and then has difficulty getting back to sleep.[44] In addition to the sleeping difficulties related to his lower back pain, the plaintiff was also diagnosed as suffering from sleep apnoea about 18 months ago. The plaintiff said he seldom wakes up refreshed after a good night’s sleep, and that this impacts upon his ability to engage in employment.[45]
[44]PCB 14
[45]PCB 14
34 The plaintiff said that he has some degree of lower back pain all the time, but that the level of pain varies in intensity.[46] He said he frequently experiences flare-ups of pain, which can be either associated with activity or can come on for no reason at all. He said the variation in his level of symptoms is unpredictable and he believes this would affect his reliability as an employee.[47]
[46]PCB 14
[47]PCB 14
35 The plaintiff no longer plays golf,[48] and now only plays pool twice a week.[49]
[48]PCB 8
[49]T58, L6-8
36 The plaintiff said that he takes Panadol, approximately six per week, and that he also uses Voltaren Gel. He said he tries to avoid taking medication as he finds that it constipates him.[50]
[50]PCB 20
Plaintiff’s medical evidence
37 Dr Slesenger provided numerous reports in relation to his ongoing treatment of the plaintiff. In his most recent report dated 12 January 2017, Dr Slesenger stated that in his opinion, as a consequence of the incident in February 2010, the plaintiff suffered a mechanical injury to his lumbar spine with chronic lower back pain with radicular symptoms, but no evidence of radiculopathy.[51]
[51]PCB 62
38 In commenting on whether the plaintiff was able to return to work, Dr Slesenger noted that the following restrictions would be required:[52]
[52]PCB 63
·No prolonged sitting;
·No prolonged standing;
·No prolonged walking;
·No repetitive bending and twisting; and
·No lifting greater than five kilograms.
39 Dr Slesenger considered the plaintiff was unfit to return to his pre-injury duties. Further, given the plaintiff’s age, his current residential location in Bendigo, his past occupation and experience, his qualifications, his current symptoms and functional limitations, Dr Slesenger was of the opinion that the plaintiff could not return to work in a role for which he had suitable training and expertise.[53] Dr Slesenger was of the opinion that it was unlikely there would be a significant alteration in the plaintiff’s functioning in the foreseeable future.[54]
[53]PCB 63
[54]PCB 64
40 Associate Professor Goldwasser re-examined the plaintiff for the purpose of this claim in September 2013 and March 2016. He noted the plaintiff’s past history, including the 1994 injury, which he had surgically treated. Associate Professor Goldwasser noted that the episode of back injury in February 2010 was quite severe, and that the plaintiff had not been able to return to his pre-injury duties since that time.[55] He considered that the plaintiff suffered an aggravation of his back condition in that incident, with the development of more symptoms, including pain and reduced function, and an inability to return to pre-injury activities.[56]
[55]PCB 96
[56]PCB 105
41 In September 2013, Associate Professor Goldwasser noted that the plaintiff was working as a security guard and that he appeared to manage to the extent of 20 hours a week, when required to do so.[57]
[57]PCB 96
42 Upon review in March 2016, Associate Professor Goldwasser noted that the plaintiff had worked approximately 10 days in the previous 12 months.[58] He was of the opinion that the plaintiff should avoid prolonged sitting, standing and walking, as well as activities associated with repeated stooping, and repetitive lifting, bending and/or twisting. He considered the plaintiff was unlikely to cope with lifting more than five to eight kilograms repetitively.[59] Associate Professor Goldwasser considered the plaintiff would be suited for part-time employment, estimated to be 20 hours a week.[60]
[58]PCB 102
[59]PCB 105
[60]PCB 106
43 The plaintiff’s solicitors arranged for the plaintiff to be examined by occupational health and rehabilitation consultant, Dr David Middleton, in January 2012, August 2013, July 2015 and May 2016. In each of his reports, Dr Middleton detailed the plaintiff’s history, the plaintiff’s current symptoms, treatment and activities, together with his findings on examination and his assessment as to the plaintiff’s current capacity for employment. In his most recent report dated 3 June 2016, Dr Middleton noted that the plaintiff suffered an L3-4 disc derangement that impacted on the right L3 nerve root, resulting in discogenic pain, from which the plaintiff has never fully recovered.[61]
[61]PCB 166
44 Dr Middleton was of the opinion that as a consequence of the injury suffered in February 2010, the plaintiff was precluded from prolonged sitting, standing, walking, driving and stooping, as well as repetitive bending and twisting, and with a lifting restriction of five kilograms on an occasional basis and three kilograms on an intermittent basis.[62]
[62]PCB 167
45 Dr Middleton considered that the plaintiff was restricted to sedentary, non-manual work and that he had the capacity to work in security as before, with the exclusion of crowd control. Dr Middleton was of the opinion that in order for the plaintiff to reliably attend work of this limited nature, it should be on a part-time basis, with the plaintiff working four to five hours a day, three to four non-consecutive days, with a maximum of 16 hours per week.[63]
[63]PCB 167
Defendant’s medical evidence
46 The defendant arranged for the plaintiff to be examined by consultant surgeon, Mr Edward Schutz, in October and December 2010. In his first report dated 22 October 2010, Mr Schutz referred to the plaintiff’s 1994 injury and noted that the plaintiff had reported to him that:
“Over the years he had a tendency to low back discomfort which he regarded as normal, and with that he also had a tendency to left buttock discomfort.”[64]
[64]DCB 56
47 Mr Schutz noted that at the time of examination, the plaintiff described his lower back pain as being three out of ten.[65]
[65]DCB 55
48 In his subsequent report dated 15 December 2010, Mr Schutz noted that the plaintiff continued to report lower back pain but that there had been some improvement.[66] Mr Schutz noted that the plaintiff believed he could be working in light driving duties, provided no manual work was required.[67] When this comment was put to the plaintiff in cross-examination, he agreed that he would have liked to have still been able to do light driving duties at Pace Farms.[68]
[66]PCB 63
[67]DCB 63
[68]T28, L11-31
49 In December 2011, the defendant arranged for the plaintiff to be examined by rheumatologist, Dr Geoffrey Littlejohn. In his report dated 2 December 2011, Dr Littlejohn referred to the 1994 injury and noted that, after surgery the plaintiff considered that his pain had settled to “90 per cent”.[69] Dr Littlejohn then noted that after the incidents in 2010, the plaintiff suffered further lower back pain but that he was basically about “70 per cent better”.[70]
[69]DCB 67
[70]DCB 68
50 At the time of the examination, Dr Littlejohn considered the plaintiff had suffered an exacerbation of lower back pain in the context of the work activities in 2010, and that he had been left with persisting pain, such that he had not returned to viable work activity.[71]
[71]DCB 71
51 The defendant also arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Ian Jones, in March 2015 and September 2016. In his first report dated 16 March 2015, Mr Jones noted the plaintiff’s 1994 injury and the incidents of February 2010 and September 2010.[72] Mr Jones considered the plaintiff had suffered an aggravation of his pre-existing condition, and that such aggravation had not ceased.[73]
[72]DCB 75-77
[73]DCB 82
52 Mr Jones considered the aggravation to the plaintiff’s lower back affected his capacity to work, such that he should avoid frequent bending, lifting or prolonged static standing.[74] Mr Jones then stated that in his opinion, while the plaintiff was unfit to return to his pre-injury employment, he was capable, within those restrictions, of returning to full-time duties.[75]
[74]DCB 82
[75]DCB 83
53 In his most recent report dated 15 September 2016, Mr Jones noted that, since his last examination of the plaintiff, there had been a deterioration in the range of spinal movements, and that the effects of the aggravation continued.[76]
[76]DCB 83F
54 Mr Jones considered that the plaintiff had the capacity for suitable employment, which was sedentary or semi-sedentary, with the exclusion of repeated bending or the lifting of significant weights. He was of the opinion that the plaintiff could perform such suitable employment on a part-time basis,[77] but did not state the maximum number of hours he considered the plaintiff capable of working each week.
[77]DCB 83G
Credibility
55 I consider the plaintiff to be creditworthy and reliable. He gave frank evidence, and I do not consider he attempted to embellish his answers. When asked about his pre-existing lower back condition, he readily accepted the contemporaneous medical reports. He also conceded that his current pain levels were similar to his pre-existing pains, in that they were not unbearable, just annoying.[78]
[78]T55, L31 & T56, L1
56 The plaintiff had a strong work ethic, as demonstrated by his attempts to return to work, soon after the 1994 surgery, and after each incident in 2010. I also consider the plaintiff made all reasonable efforts to obtain work with MSS and that, whilst so employed, he sometimes worked beyond his capacity. I accept that, at times, the long shifts and prolonged standing caused him a significant increase in his lower back pain.
57 The plaintiff remained positive regarding the suitability of possible jobs, and I accept that he would like to work now, if he could obtain suitable employment consistent with his restrictions. I consider the plaintiff’s evidence regarding possible employment prospects further reflected the plaintiff’s honesty and candour, and I have no hesitation in accepting the plaintiff’s evidence in whole.
Aggravation
58All of the doctors accept that the plaintiff’s employment in 2010 caused an aggravation of the degenerative condition in his spine.
59As an aggravation of the pre-existing degenerative condition in his spine, it is now necessary for me to compare the plaintiff’s pre-existing condition prior to the 2010 employment, with the aggravated state. I must consider only the consequences arising from the aggravation, in accordance with the principles enunciated in Petkovski v Galletti,[79]
[79][1994] 1 VR 436
60 Chernov JA, in R J Gilbertson v Skorsis,[80] summarised the task before me:
“In determining whether an injury which is an aggravation of a pre-existing injury is a ‘serious injury’, it is necessary first to make a comparison between the applicant’s condition before the accident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.”[81]
[80][2000] VSCA 51
[81]Ibid at [40]
61 I accept that prior to 2010, the plaintiff had intermittent lower back pain, which restricted him in some recreational activities, such as volleyball and cricket, and restricted him from performing his profession as a carpenter. However, the plaintiff did not receive any ongoing medical treatment for his pre-exiting lower back condition and, save for one known day off on 2 December 2009, he did not require time off work, and was able to work full-time as a delivery driver. The plaintiff was able to engage in recreational pursuits such as golf and pool.
62 Although it was not entirely asymptomatic, I am satisfied that, for the decade prior to 2010, save for the modest restrictions noted above, the plaintiff’s lower back condition resulted in minimal impairment, particularly in relation to his work capacity.
63 In assessing the plaintiff’s claim, I will disregard the modest impairment arising from his pre-existing lower back condition.
Permanent
64 In order to satisfy the definition of serious injury, the plaintiff must prove that the injury and its consequences are both serious and permanent. The authorities have defined the latter to mean “likely to last for the foreseeable future”.[82]
[82]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [34]
65 I am satisfied that the aggravation of the plaintiff’s lower back injury and the consequences which flow are permanent. No surgical treatment is recommended. The doctors accept the lower back injury is stable, and unlikely to improve given his symptoms have persisted for over six years.
Loss of earning capacity
66 To succeed in his application, the plaintiff has the onus of satisfying me that, as at the date of hearing, that as a consequence of the aggravation of his lower back injury, he has sustained a loss of earning capacity of 40 per cent or more; and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what the plaintiff is capable of earning, whether in suitable employment or not.
67 The definition of suitable employment is an objective test which looks at the plaintiff’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether or not the work is a reasonable distance from the plaintiff’s place of residence.[83]
[83]Ibid at [25] and [28]
68 In undertaking this task, I must compare what the plaintiff is currently earning, or capable of earning in suitable employment, with his pre-injury earning capacity. To determine his pre-injury earning capacity, I must decide which of the following scenarios most fairly reflects the plaintiff’s earning capacity, had he not suffered the injury:
(a) the gross income that the plaintiff earned (or was capable of earning) from personal exertion in the three years before the injury;
(b) the gross income the plaintiff would have earned (or was capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.[84]
[84]s134AB(38)(f)
69 In the financial year ending 30 June 2009, the plaintiff’s gross earnings were $51,414. The parties accepted that this was the figure which most fairly reflected the plaintiff’s pre-injury earning capacity. This equates to a weekly amount of $989.
70 Applying the statutory test, I must be satisfied the plaintiff is incapable of earning no more than $593 gross per week, and that such a restriction on his earning capacity will be permanent.
71 In assessing the plaintiff’s claim for loss of earning capacity, I am obliged to do so realistically, by reference to the plaintiff’s physical limitations, and by reference to what might or might not amount to “suitable employment” in the foreseeable future.[85] This is a test of physical capacity, not employability, and it involves a consideration of what the plaintiff might, in the foreseeable future, be able to do on a regular and consistent basis, allowing for such improvement as might be thought likely or possible after undertaking vocational education.[86]
[85]Harris v DJD Earthmoving Pty Ltd [2015] VSCA 188 at [48]
[86]Ibid [49]
72 The plaintiff himself remained hopeful of obtaining suitable employment, but considered it would need to be part-time hours only, as he had struggled to work both the long shifts and the consecutive shifts with MSS.
73 I accept the plaintiff has ongoing pain in his lower back, which varies in intensity. I accept that he needs to avoid prolonged standing, sitting, walking, bending and twisting and that he should avoid lifting weights of more than five kilograms. I also accept his evidence that he had difficulties working consecutive days during the Grand Prix, that his last eight hour shift, during which time he was on his feet all day, resulted in his back “killing him”[87] and that by April 2014, he was not able to sustain the hours of work he was undertaking at the Detention Centre.
[87]PCB 13
74 The doctors accept that the plaintiff cannot perform his pre-injury duties as a delivery driver.
75 However, all the doctors, save for Dr Slesenger, considered the plaintiff has the capacity to perform alternate duties, on a reduced capacity.
76 Dr Middleton considered that the plaintiff is capable of performing sedentary, non-manual work, and that in order to attend reliably, the plaintiff should work a maximum of four to five hours per day, on three to four non-consecutive days per week. Dr Middleton considered that the plaintiff’s maximum capacity is 16 hours per week.
77 Associate Professor Goldwasser was of the opinion that the plaintiff could work in suitable employment, for up to 20 hours per week. However, in expressing that opinion, he did not comment on the difficulties encountered by the plaintiff when required to work consecutive days or long hours.
78 In March and September 2015, Mr Jones had considered that the plaintiff could work full-time in suitable employment, in occupations such as truck driver (with restrictions), or transport and dispatch clerk. However, following his re-examination of the plaintiff in September 2016, Mr Jones considered the plaintiff capable of suitable employment, on at least a part-time basis. Mr Jones did not state the number of hours he considered to constitute such part-time work, but his change of opinion regarding the plaintiff’s capacity for working hours, seemed to reflect his assessment that there had been a deterioration in the plaintiff’s range of spinal movements.
79 Dr Slesenger, who has treated the plaintiff regularly since February 2010, considered that due to his experience, qualifications, symptoms and functional restrictions, the plaintiff has no current capacity for suitable employment. I note that, although Dr Slesenger has treated the plaintiff as a general practitioner, he is also a specialist occupational physician. I therefore give considerable weight to Dr Slesenger’s opinion, although, considering the plaintiff’s desire to obtain work, it may be that his opinion is too pessimistic.
80 The Court of Appeal recently observed in Poholke v Goldacres Trading Pty Ltd & Ors [2016] VSCA 232 that an assessment, as to whether a plaintiff has established the requisite loss of earning capacity, need not be determined solely by reference to the medical evidence, but instead “on a full and proper consideration of all of the evidence in the application.”[88] As was the situation in Poholke, the plaintiff’s evidence of the physical difficulty he experienced working modified duties and hours after suffering his 2010 back injury, was an important matter for me to consider in assessing the plaintiff’s capacity for suitable employment.
[88]Poholke v Goldacres Trading Pty Ltd & Ors [2016] VSCA 232 Paragraph 131
81 I have ultimately concluded that the plaintiff is capable of performing a maximum of 16 hours per week in suitable employment. I consider that for the plaintiff to be a reliable employee, he could not work consecutive days, and that he should work a maximum of five hours per shift. This would enable him to work reduced hours and reduced days, such that he would have time to recover between shifts, so as to ensure he could attend on a regular and consistent basis. This finding is consistent with the opinion of Dr Middleton and, to a degree, that of Mr Jones. I consider the 20 hours a week proposed by Associate Professor Goldwasser is beyond the plaintiff’s capacity, given my acceptance that he needs to work short shifts on non-consecutive days.
82 I note that there are numerous potential jobs which may constitute suitable employment. The plaintiff gave evidence that he considered he could work as a taxi driver, bus driver or security officer.
83 The defendant relied upon employment capacity analysis reports prepared by Recovre. These reports outlined a range of jobs including truck driving (with restrictions), transport and dispatch clerk, receiving and dispatch work, stock work, rental salesperson, and meter reader.[89]
[89]DCB 96-150
84 Given my finding that the plaintiff could not work more than 16 hours per week, it is not necessary for me to assess the suitability of each of these proposed jobs, as based upon the average earnings for each such occupation, the plaintiff will suffer the requisite 40 per cent loss of earning capacity as a consequence of his aggravated lower back injury.
85 I am satisfied this loss of earning capacity will be permanent.
86 Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the “very considerable” test.[90] Given my acceptance that the plaintiff’s aggravated lower back injury restricts him to only part-time work, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as at least, very considerable.
[90]s134AB(38)(c)
87 As the plaintiff has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his aggravated lower back injury, it is not necessary for me to consider separately his pain and suffering consequences.[91]
[91]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
88 I am satisfied that the plaintiff suffers a serious injury to his aggravated lower back, arising as a consequence of his employment with Pace Farms, and the consequences are such that he should be granted leave to commence proceedings for pain and suffering and loss of earning capacity damages.
89 I will make the consequent orders.
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