Whittle v Victorian WorkCover Authority
[2013] VCC 411
•16 April 2013
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00357
| MIKEAL GLENN WHITTLE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 9 and 10 April 2013 | |
DATE OF JUDGMENT: | 16 April 2013 | |
CASE MAY BE CITED AS: | Whittle v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 411 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury - injury to lumbar spine in the course of employment – pain and suffering and economic loss – issues of credit – whether pain and suffering consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Arnold Dallas McPherson |
| For the Defendants | Mr A Moulds SC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 The plaintiff suffered injury to his lower spine in the course of his employment with Keech Castings Australia Pty Ltd (“Keech”) in September 2008. He has not worked since that date, says he suffers constant pain in the lumbar spine which requires the consumption of significant quantities of pain relieving medication and claims a range of recreational, domestic, social and employment activities are curtailed or lost as a result of the injury.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with Keech on 25 September 2008. The body function said to be lost or impaired is the lumbar spine.
3 The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.
4 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, affidavits of the plaintiff, various medical, radiological and vocational reports were tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather to those parts of his evidence which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known, and it is unnecessary for me to revisit the various relevant sections.
Relevant background
5 The plaintiff is now forty-four years of age. Until recently, he lived in a de facto relationship, and has two young children.
6 He left school in Year 9 and worked in various areas of employment, largely as a labourer and in unskilled work. His employment history has been somewhat fractured and, according to the history obtained by the vocational consultant, Mr Radley,[1] the longest period of employment in which he was engaged was three-and-a-half years.
[1]Plaintiff’s Court Book (“PCB”) 46
7 He has no particular qualifications, training nor trade skills.
8 He has an extensive criminal history which was explored in the course of cross-examination.[2] He has been convicted on a number of occasions for drug-related offences. In 2000, he was convicted for trafficking in heroin and served a sentence of three years’ imprisonment. He admitted in evidence[3] that he had used and become addicted to a range of drugs including methylamphetamine, heroin and marijuana. In addition to the drug offences, he has been convicted of a range of dishonesty offences, including theft and handling stolen goods. He said that he has been clean from drug use for nearly two years, although on one recent occasion he was convicted for methylamphetamine use while driving and lost his licence for six months.[4]
[2]T (“Transcript”) 11 ff
[3]T50
[4]T50, L26
9 The plaintiff was released from gaol in about 2004. It was accepted by the parties that his employment history from that time was as follows:
Year Ended Employer Income from Employment Social Security Benefit 30 June 2005 Victoria Carpets $6,800.00 $8,390.00 30 June 2006 Victoria Carpets $11,200.00 $7,100.00 30 June 2007 No employment - $10,906.00 30 June 2008 Keech $6,373.00 $10,395.00
10 As indicated above, the plaintiff commenced employment with Victoria Carpets as a general labourer for a period of about ten months in 2005 and 2006. He then worked as a fencer for about three months. There were gaps in his employment. He commenced work with Keech in late 2007/early 2008. He described the work as heavy manual labour.
11 Of more recent times, the plaintiff was convicted of a number of charges of theft, including of a generator, an outboard motor and some alcohol. In the Bendigo Magistrates’ Court in March 2012, he was sentenced to three months’ imprisonment.
12 In May 2008, before the subject incident, the plaintiff was admitted to the Bendigo Hospital with a neurological problem concerning his left thigh, diagnosed as meralgia paraesthetica.[5]
[5]Report of general practitioner – PCB 28
13 Save as above, the plaintiff was otherwise in good health before September 2008 and in particular had no significant pain nor restriction in his lumbar spine[6].
[6]Although note the history to Mr Dayananda – PCB 34 – of ‘many episodes of low back pain (prior to the incident) and has been out of work for periods extending to 3 to 4 weeks’. I am of the view this history is inaccurate.
The incident and its consequences
14 On 25 September 2008, in the course of his employment, the plaintiff was required to lift a heavy plate weighing approximately 50 kilograms. He felt what he described as a “twitch” of pain in his lower back and tingling into both feet. The next day when he woke, the pain had increased and he found it difficult to bend. He went to see his general practitioner, Dr Sheringham, who referred him for physiotherapy and arranged a CT and MRI scan of the lumbar spine which she said showed bulges at the lower levels, and a previously undiagnosed Grade 1 mild spondylolisthesis at L5-S1. Dr Sheringham said that the plaintiff’s symptom complex was clouded by the pre-existing meralgia paraesthetica.[7] According to a report of another doctor at the same clinic, Dr Botros, of October 2008,[8] he said the plaintiff was totally incapacitated for his work. At that time, the plaintiff was prescribed Tramal.
[7]PCB 28
[8]PCB 32
15 Dr Sheringham referred the plaintiff to Mr Brendan O’Brien, neurosurgeon, who he saw in February 2009.[9] The plaintiff described ongoing lower back pain with pins and needles into both legs. Mr O’Brien noted a decreased right ankle jerk. From the MRI scan which had been undertaken, he said there was a loss of disc space at L4-5 consistent with disc desiccation and a small annular tear. He diagnosed two-level lumbar disc desiccation associated with the spondylolisthesis at L5-S1. He suggested the plaintiff attend a rehabilitation program at the Anne Caudle Rehabilitation Unit of the Bendigo Base Hospital.
[9]PCB 22
16 The plaintiff attended the program in June 2009 and was assessed by a physiotherapist and occupational therapist. It was noted the plaintiff complained of high levels of pain, limited mobility and significant secondary stressors. Physiotherapy and occupational therapy advice was provided and following this program, Mr O’Brien was of the view that the plaintiff’s prognosis was good. He said the following:
“I would recommend that he continues to employ careful restricted practices for the lumbar spine. In particular he should not:
1 Lift anything heavier than 15 kilograms by himself.
2 Avoid recurrent bending, lifting, twisting or straining.
3 Avoid working below the level of the waist or above the level of the shoulders.
4 Be employed in some form of core muscle strengthening, Pilates-type program.
5 Continue with intermittent remedial muscle massage and physiotherapy for maximal functional improvement.”[10]
[10]PCB 24
17 It would appear this recommendation is not an assessment of work capacity, but rather general advice. In any event, it is now somewhat dated.
18 In January 2010, the plaintiff was referred to Mr Dayananda, orthopaedic surgeon.[11] He noted that the spondylolisthesis at L5-S1 had “caused impingement of the L5 nerve root”. He noted that Dr Sheringham had arranged a CT-guided injection to the L5 nerve. He diagnosed an L5 bilateral pars defect spondylolisthesis impinging on the bilateral nerve root, clinically more on the left L5 nerve root.[12] He said the plaintiff’s condition of low-back pain and numbness into the foot was liable to remain chronic although would fluctuate. He said this would affect him working as a manual labourer.
[11]PCB 34
[12]PCB 35
19 As stated, the plaintiff attended the Anne Caudle Rehabilitation Unit over the period from March to September 2009. It was noted that he missed a number of appointments and that his back pain was complicated by anxiety and depression. A diagnosis of multiple degenerative disc disease, including discs in the cervical and thoracic spine, with Grade 1 anterolisthesis at L5. His prognosis as to capacity for manual work, was said to be poor.[13]
[13]PCB 38
20 The plaintiff continued to see Dr Sheringham, and was prescribed Endep and Lyrica for muscle relaxation, and pain-relieving medication, Tramadol, OxyContin and Panadeine Forte. He also took Diazepam to assist with sleeping.
21 In July 2010, he was referred to Mr Travis Perera, orthopaedic surgeon, and was first seen on 30 July 2010. Mr Perera noted a treatment history of acupuncture, hydrotherapy, physiotherapy and the attendance at the Pain Management Program. He noted the plaintiff had problems with reading and writing. Having observed the radiology, he suggested the plaintiff’s treatment should remain conservative and that he should not return to any manual labouring work. Surgical treatment was unlikely. He diagnosed the pars defect at L5, with no associated spondylolisthesis, as well as a degenerate L4-L5 disc. He thought the prognosis overall was reasonable and that the plaintiff should lose weight, regain fitness and remain active. He said the plaintiff should re-train, in particular to increase his reading and writing skills. He said the plaintiff was likely to have a minor degree of incapacity into the future.
22 In approximately 2001, the plaintiff moved to Warrnambool, which he said was to remove himself from criminal elements with whom he had associated in Bendigo. He commenced treatment with Dr McKellar in Warrnambool, who has continued to treat him through to the present time. He presently prescribes Endep, Panadeine Forte, Fenac, Lyrica, Tramadol and Panadol Osteo, all of which he takes on a regular basis. Dr McKellar said he would require these medications indefinitely.[14] By his report of 12 February 2013,[15] Dr McKellar said the plaintiff was incapacitated for any physical labour but could be re-trained to do non-physical work, despite his criminal history.
[14]PCB 73
[15]PCB 83
23 The plaintiff has not done any work since the incident. He states that because of his lack of reading and writing skills, he would be unable to do a desk job. He has some modest computer abilities, although has a Facebook page.
24 He is registered with a re-training organisation in Warrnambool, although it was not clear from the evidence the name of that organisation, or what services can be provided. He says he is waiting for an assessment.
25 On 14 March 2013, a letter was sent from Drake International, an employment provider who had arranged his employment originally with Keech, to his doctor which suggested that light work in the nature of sorting clothes with the Salvation Army was available. The general practitioner was requested to advise whether the plaintiff would be able to undertake such work in his current condition.[16] In evidence, the plaintiff said that he had discussed the matter with his general practitioner, although it was not clear what the outcome of that discussion was. The plaintiff said that he had worked for the Salvation Army before, knew the duties which were referred to and said he would be unable to undertake them. In my view, his evidence in this regard was somewhat unsatisfactory. It was put by Mr Mighell that it was no coincidence this letter went on the eve of the Court hearing, and without any evidence from Drake or the defendant as to how and in what circumstances this claimed offer of employment came to be made, I should have little regard to it. For reasons which I shall subsequently detail, I am not satisfied the offer of employment, if indeed that is what it is, makes any significant difference when considering the plaintiff’s work capacity.
[16]DCB 64a
26 In the course of cross-examination, the plaintiff disclosed that he fished regularly from Warrnambool, and on occasions from Portland. This year, he had been out in a boat on about five occasions and had fished from the breakwater or pier at Warrnambool about as regularly. In fact, he had recently been successful in landing a large fish.[17] He said that on the occasions he fished from a boat, he would lie on the boat from time to time because of back pain, and he was restricted in the hours he could spend fishing from land.
[17]See photograph in his face book page at DCB 64c
27 At the present time, he is certified as being unfit for any employment duties by his general practitioner.[18]
[18]PCB 85a
28 As to the consequence the plaintiff says have resulted from injury, according to his affidavits, he suffers constant lower back pain which radiates into his left thigh. The pain becomes worse if he sits for more than half-an-hour or stands for more than an hour. He says he regularly walks with a limp. The pain affects his sleep, and he becomes tired during the day. His personal relationship with his de facto partner has been significantly affected, and that relationship has now broken up, although they still live under the same roof. Activities of daily living take longer because of his lower back pain. He no longer mows the lawns and says his social life is significantly affected. He has a friend, Mr Fowler, who he met playing poker in hotels. He goes fishing and camping with him on occasions and still plays poker, although less regularly than he previously enjoyed. Mr Fowler was involved in the theft of the outboard motor, although the plaintiff denied lifting either it or the air-conditioning unit which was also the subject of theft charges.
29 The plaintiff says that he still drives, although not for long distances. This stands in some contrast to his acceptance in cross-examination that he had driven to a number of towns, including Maryborough, Echuca and Portland. He says he can no longer play with his younger children in the manner he would like. Any activity or employment which requires him to bend, twist, turn or sit or stand for longer periods would be difficult. He says he would be unable to work full-time as he would be in too much pain.
Consultant Medical Opinions
30 I referred to the opinions of the various treating practitioners. The plaintiff was examined by Dr David Murphy, rehabilitation specialist, in July 2012 and March 2013.[19] Most recently Dr Murphy obtained a history that the plaintiff had suffered constant low-back pain to the left-hand side with some referred pain to the left leg. The plaintiff said the pain was constant and disturbed his sleep. On examination, he noted a range of restrictions in movement of the lumbar spine. He diagnosed the plaintiff as suffering an aggravation of spondylolisthesis at the L5-S1 level, with some left L5 radiculopathy. This, he said, was an underlying condition which had been aggravated in the workplace incident. He said the plaintiff’s capacity for employment was extremely limited and he should not undertake any employment which involved lifting more than 5 kilograms, or any repetitive lifting, bending, twisting, sitting or standing in one position for more than an hour.
[19]PCB 74, 83A
31 The plaintiff was examined by Mr Michael Shannon, orthopaedic surgeon, on behalf of the defendant in May 2010. Mr Shannon said there was no true sciatica. In his opinion, the plaintiff was suffering from pre-existing lumbar disc degeneration, and spondylolisthesis at the lumbosacral junction. This was related to the heavy lifting at his work. He said the pain was essentially mechanical without evidence of nerve root impingement, either clinically or radiologically. He said his symptoms were so widespread that he was not an appropriate candidate for surgery. He noted the plaintiff was taking substantial doses of medication but this was not unreasonable, and would be required indefinitely. He said he was relatively inactive and did require a pain management/rehabilitation program.[20] As to work capacity, Mr Shannon said the plaintiff was incapable of performing his previous heavy work as a labourer or for any other form of employment which required significant bending or lifting. He said:
“Given his pain syndrome, I really think that he has no realistic work capacity noting his skills and qualifications. … I cannot think of any light duties with restrictions which would suit his physical capacity. … I do not think he is capable of returning to work until his pain is appropriately managed whether this is by a pain management program or less likely by surgery.”[21]
[20]PCB 91
[21]PCB 92
32 The plaintiff was examined again for the purposes of this application by Mr Perera, orthopaedic surgeon, who had earlier treated him, in August 2012.[22] Mr Perera said that the overall prognosis for the plaintiff was reasonably stable providing he did not aggravate his lumbar spine with activities, including repetitive heavy lifting, bending, twisting et cetera. He said the degenerative changes in his lumbar spine were likely to worsen as he got older. The plaintiff had no capacity for his previous heavy employment and he may have a limited capacity essentially for office or clerical work if he was able to be re-trained. He said that even in such a role, his work hours would be restricted.[23]
[22]PCB 78
[23]PCB 81
33 The plaintiff was examined by Dr David Barton, on behalf of the WorkCover insurer in April 2009.[24] He was the only practitioner to find significant symptoms of functional overlay. He thought the plaintiff had the capacity for suitable employment, including returning to general labouring. Given he is the only practitioner to come to this view, and because of the age of the report, it is of little assistance.
[24]DCB 3
34 The plaintiff was examined by Mr Keith Elsner, orthopaedic surgeon, in November 2010. The opinion is limited as it was obtained for the purposes of an AMA assessment. He considered the plaintiff had suffered an aggravation of lumbar degenerative changes, including pre-existing spondylolisthesis, although without verifiable radiculopathy.
35 Mr Geoffrey Klug, neurosurgeon, provided an extensive report, having examined the plaintiff in February 2013.[25] He received a history of the onset of lumbar symptoms, and their persistence despite conservative treatment, as did the other practitioners. On examination, he noted substantial restriction of all lumbar movements. He examined all of the radiology, including the MRI scan of 2010, which he said showed a degenerative L4-5 disc with the Grade 1 spondylolisthesis at L5-S1, and some flattening of the L5 nerve roots. He said the spondylolisthesis was present, although asymptomatic prior to the relevant incident. He said most likely the incident led to an aggravation of this condition, although could not find any impairment of neurological function. He found it difficult to explain why the plaintiff had displayed no sign of improvement despite extensive conservative treatment. He concluded the plaintiff was suffering from a physical disorder involving his lumbar spine and given the lack of improvement, his prognosis was very guarded. He saw no role for surgery. As to the prospects of employment, he said the following:
“This person has remained unemployed for an extended period of time. I feel it would be genuinely not possible for him to return to his previous types of employment which obviously were of a physical nature and would have placed undue and repetitive strain on his back. It appears that he has not had any other training and in view of his background it would be difficult for this person to try and undertake a suitable type of employment at the present time. … Possibly with some training he could undertake some activities of a non-physically demanding nature. I did note various suggested employments in a vocational report dated 08-11-10. Again I could only state that in view of his background it would probably be difficult for him to undertake activities of the defined type.”[26]
[25]DCB 27A
[26]DCB 27f
36 The defendant tendered a vocational assessment report of Konekt.[27] This report analysed various medical opinions, and provided a range of employment options which it said were suitable for the plaintiff. These included:
[27]DCB 28
· Customer service[28]
[28]DCB 32
· Vehicle spare parts sales[29]
[29]DCB 33
· Cashier[30]
[30]DCB 34
· Sales representative/parts and hardware[31]
[31]DCB 35
· Shelf fillers[32]
[32]DCB 36
· Counsellor/community worker[33]
· Courier driver (light freight).[34]
[33]DCB 37
[34]DCB 38
37 That report described the various activities involved in each of the areas of employment. Having heard the plaintiff in evidence, and having regard to his limited education and lack of literacy skills, work as a salesman, in customer service or as a counsellor would be well beyond his capacity.
38 On behalf of the plaintiff, Mr Radley of Job Options Consulting provided a report of 7 July 2011.[35] Mr Radley professes expertise as a psychologist and vocational assessment specialist. He undertook a range of psychological and vocational testing and concluded that the plaintiff had no capacity for previous employment, and no capacity for any alternative employment. He noted that the plaintiff had poor articulation and a limited vocabulary. There were restricted interpersonal and social communication skills. He said the plaintiff had poor numeracy and language skills and struggled when testing tasks became complex. He noted he was suffering significant physical and psychological deconditioning as a result of his chronic pain. The plaintiff’s only skills were in manually-based activities which required physical strength, speed and flexibility. He said any employment in these areas required general good physical fitness and the capacity to perform repetitive and strenuous work.
[35]PCB 42
39 Mr Radley assessed the plaintiff’s capacity for occupational re-training. He considered this was not a viable option given his limited education, poor literary skills, low level of general intelligence and physical restrictions. Also, he said, the plaintiff suffered general mental confusion and significant impairment of concentration. This coincides with my assessment of the plaintiff in evidence. The only recommendations he could make was for him to enrol in a literary and numeracy course, be referred to a psychologist to deal with mood and adjustment disorders and to undertake a multi-disciplinary pain management program.
Conclusions
40 A significant attack upon the credit of the plaintiff was made by Mr Moulds, in particular because of the plaintiff’s convictions for the various dishonesty offences. Further, he said aspects of the plaintiff’s evidence were unsatisfactory, in particular that he would not admit he knew the outboard motor, the subject of one of the charges, was stolen at the time he took it. He suggested the plaintiff was only prepared to admit matters, particularly in cross-examination, which suited the purposes of his application. He suggested that I ought not accept the plaintiff’s evidence, save as was corroborated by other evidence. In particular, I should not accept the plaintiff suffers the levels of pain and restriction he claims. Necessarily, the opinions of the medical practitioners were dependent upon the accuracy of the history he provided. Mr Moulds further referred to the fact that the plaintiff fished on a regular basis, was able to drive significant distances and had given an incorrect history to Mr Dayananda about the onset of back pain before the incident.
41 Mr Mighell, in response, said that there were, aside from the plaintiff’s criminal history, no significant issues of credit put to the plaintiff in cross-examination. For example, there was no surveillance film, nor any clear inconsistencies in the plaintiff’s evidence. He said that the mere fact the plaintiff had a criminal history ought not be a basis to reject his evidence.
42 I did find some aspects of the plaintiff’s evidence unsatisfactory. I was not impressed by his lack of pursuit of the recent offer of employment. Further, given his fishing activities, and capacity to drive longer distances, I formed the view that he was somewhat more active than his affidavit and the histories to the various doctors would have it. That aside, I do not see a basis to reject all of the plaintiff’s evidence simply because he has a long criminal history, including for dishonesty offences. There is no suggestion from any of the doctors, with the possible exception of Dr Barton, that they saw the plaintiff as exaggerating his symptoms, or attempting to mislead them. While I do have some reservations about the plaintiff’s complaints, generally I accept that he suffered the injury in September 2008 which has led to significant lower back symptoms which have not been relieved by any conservative treatment, and have required, in particular, the prescription of large quantities of pain-relieving and other medication.
43 The balance of the medical evidence is to the effect that the plaintiff had an underlying degenerative condition in his lumbar spine, in particular a spondylolisthesis at L5-S1 which was previously largely asymptomatic. I accept that the incident aggravated that underlying condition and that he has suffered mechanical back pain as a result, through to the present time. Although there is reference by some practitioners to referred pain in the nature of radiculopathy, I prefer the opinion of Mr Klug, that the complaints of pain into his thigh and leg are widespread, and that there is no sufficient clinical nor radiological evidence of radiculopathy.
44 The plaintiff’s treating practitioners largely accept the plaintiff complaints of pain. Even although at the outset, a number of practitioners considered the plaintiff had a capacity for some lighter duties, most of the practitioners at the present time consider that capacity is very limited. There is universal acceptance that he would be unable to return to his physical strenuous labouring duties.
45 In particular, I was impressed with the opinions of Mr Shannon, and Mr Klug, both of whom were retained by the defendant. Each are experienced specialists. Mr Shannon considered that the plaintiff could not perform his former duties, and he could not think of any light duties for which he would be suited. Although Mr Klug was unable to explain why the plaintiff’s condition had not improved, he said that realistically he had little capacity for any other type of suitable employment.
46 Mr Moulds said that the plaintiff had not met the onus imposed by s134AB(38)(g), which required him to establish that he had made reasonable efforts to participate in rehabilitation and re-training, and that an assessment of employment capacity could only be made after that rehabilitation or re-training had been undertaken. Mr Moulds said that in the light of the plaintiff’s registration with a rehabilitation agency in Warrnambool, and reference by the various medical practitioners to re-training in literacy and numeracy, the plaintiff had not met his onus. However, it is clear that the plaintiff did participate in a rehabilitation program at the Anne Caudle Rehabilitation Centre without significant improvement. Further, Mr Radley addressed the plaintiff’s prospects for re-training in his report.[36] He said that because of, in particular the plaintiff’s education, poor literary skills and low level general intelligence, the options for significant re-training are extremely limited. With respect, I agree with the opinion of Mr Radley. Having seen the plaintiff give evidence, and having regard to the plaintiff’s lack of any employment skills or qualifications, in my view, the realistic prospects of re-training as to lead to any significant increase in the breadth of employment open to him, is low to the point of being negligible.
[36]PCB 56
47 There was some debate as to the appropriate “without injury earnings” figure to be adopted for the purposes of s134AB(38)(f). Mr Moulds submitted an appropriate figure was $850.00 gross per week, which was the medium gross earnings in his employment both with Keech, and the earlier employer, Victoria Carpets. Mr Mighell submitted the appropriate figure was $1,000.00 gross per week, which he was earning with Keech at the time of injury. I prefer the submission of Mr Moulds in that regard, although, because of the conclusion I have reached in respect of the plaintiff’s working capacity, it is a moot point.
48 As stated, I accept the opinions of Mr Klug and Mr Shannon as to the plaintiff’s work capacity. He has no capacity for his previous employment, and only a very limited capacity for alternative duties. Regard must be had to the definition of “suitable employment” contained in s5 of the Act. In assessing work capacity, the Act requires the following matters to be taken into account:
· The nature of the worker’s incapacity, taking into account any certificate for work capacity. In that regard it is noted that the plaintiff’s general practitioner is certifying the plaintiff as unfit for any work duties.
· The nature of the worker’s pre-injury employment.
· The worker’s age, education, skills and work experience.
· The worker’s place of residence.
49 Taking all of these matters into account, I am satisfied that the plaintiff has proven he has little, if any, work capacity at the present time by reason of his workplace injury. I accept that he suffers ongoing pain in his lower spine which requires the prescription of considerable amounts of medication. He has limited education and no work qualifications nor particular skills. He is effectively illiterate and his prospects of re-training are very modest. In all these circumstances, I accept that he meets the test of 40 per cent of loss of work capacity in accordance with the legislation.
50 For the reasons expressed in Advanced Wire & Cable Pty Ltd v Abdulle,[37] it is not necessary for me to determine pain and suffering consequences given my determination in respect of work capacity.
[37][2009] VSCA 170 at paragraphs 63-64
51 The plaintiff’s application thus succeeds.
52 I shall make consequent orders.
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