Wiggins v Victorian WorkCover Authority
[2018] VCC 406
•9 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-04307
| JOHN JAMES WIGGINS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 March 2018 | |
DATE OF JUDGMENT: | 9 April 2018 | |
CASE MAY BE CITED AS: | Wiggins v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 406 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION/WORKPLACE INJURY REHABILITATION AND COMPENSATION ACT 2013
Catchwords: Serious injury – physical injury – injury to the lumbar spine – injury to the thoracic spine – pain and suffering damages and loss and earning capacity damages – whether the plaintiff is unable to work in suitable employment – whether the plaintiff satisfies the threshold test for serious injury in respect of loss of earning capacity and pain and suffering damages.
Legislation Cited: Accident Compensation Act 1985, s134AB; Work Injury Rehabilitation & Compensation Act 2013, s325
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hayhill Pty Ltd v Hodge [2006] VSCA 194; Harris v DJD Earth Moving Pty Ltd [2016] VSCA 188; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121
Judgment: The application of serious injury certificate for pain and suffering damages and loss of earning capacity damages in respect of the injury to the plaintiff’s lumbar spine on 2 March 2015 is granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr M Garnham | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr N Rattray | Wisewould Mahony |
HIS HONOUR:
1 The plaintiff brings this application by way of Originating Motion dated 18 September 2017. The plaintiff applies for leave in respect of two injuries received in two separate accidents. The first injury was to the thoracic spine in December 2013 and the second injury was to the plaintiff’s lumbar spine on 2 March 2015. Both of these injuries are said to have occurred in the course of the plaintiff’s employment with Norwood Agriculture Pty Ltd, known as Godings (“Godings”), in Whittlesea as a diesel mechanic.
2 The application in respect of the December 2013 injury requires the plaintiff to satisfy the test set out in s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application in respect to the injury on 2 March 2015 requires the plaintiff to satisfy the requirements of s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRC Act”). The provisions set out in both sets of legislation are identical, and hence the considerations to be made by this Court are the same in respect of each alleged injury.
3 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages in respect of the injuries to his back. The Court is required to determine the consequences of each individual injury to be satisfied that leave be given in each case.
4 The following evidence was adduced in the course of the hearing:
·the plaintiff gave evidence and was cross-examined
·the plaintiff tendered the following documents:
§Exhibit “A”, the Plaintiff’s Court Book (“PCB”), pages 2 to 9 inclusive; pages 25 to 30 inclusive, pages 32 to 69 inclusive, pages 71 to 72 inclusive, pages 84 to 88 inclusive, page 90 and page 114
§Exhibit “B”, the Defendant’s Court Book (“DCB”), pages 32 to 60 inclusive
·the defendant tendered the following documents:
§Exhibit 1, the DCB, pages 22 to 31 inclusive, and pages 61 to 146 inclusive.
5 Mr Rattray, on behalf of the defendant, identified the issues in this application as follows:
(i)The main issue in respect of this application is the plaintiff’s loss of earning capacity and his ability to engage in suitable employment subsequent to his injury on 2 March 2015;
(ii)Pain and suffering certification is not conceded, as the plaintiff has had no real treatment and takes little medication to relieve his symptoms;
(iii)The injury to the plaintiff’s spine and, in particular, the T12 vertebra, said to have occurred in December 2013, is a “distraction” in respect of this proceeding;
(iv)The plaintiff has not had surgery, and surgery to his lower back is not recommended.
6 The plaintiff’s credibility during the course of this case was not called into question. I note that in the course of this proceeding, the plaintiff impressed me as a person who is of stoical disposition and eager to advance any prospect he had of obtaining employment in the future. The plaintiff was a frank, realistic and sensible witness.
The injury to the Plaintiff in December 2013
7 The plaintiff, in his affidavit dated 29 March 2017, sets out that he injured his back as a result of lifting a trolley jack onto the back of a ute at an onsite job. When he lifted the trolley jack, he felt pain in his back. He stated he was off work for approximately one week. He did not make any WorkCover claim at that time, as the pain largely went away and he managed it by taking Panadol. He then resumed his normal duties.[1]
[1]PCB 3
8 The plaintiff worked his normal duties until 2 March 2015, when he had his second injury. There was no medical treatment as a result of the injury to his back in December 2013. It was not until after his second injury in March 2015 that the plaintiff was then referred for an MRI scan, where a fracture to his T12 vertebral body was discovered. The MRI scan was performed on 28 April 2015 and the report in respect of the T12 vertebral body was as follows:
“… There is a chronic compression fracture of the T12 vertebral body, with approximately 50% height loss anteriorly. There is no convincing hyperintensity in this vertebral body on the STIR sequence to indicate any acute component.
There is no significant retropulsion. The distal thoracic cord shows normal signal and volume … .”[2]
[2]PCB 48
9 The plaintiff, in his evidence, consistently said that the problem in his back was to his lower back. He did not describe any difficulties that he suffered with his mid or upper back. I dismiss the application for serious injury both on the basis of pain and suffering and loss of earning capacity in respect of the injury to the thoracic spine, in particular, the T12 vertebra, which is said to have arisen in December 2013 in the course of the plaintiff’s employment.
The injury to the Plaintiff’s back on 2 March 2015
10 This injury occurred after 1 July 2014 and hence the appropriate legislative scheme applicable to this application for serious injury is pursuant to s325 of the WIRC Act.
The statutory scheme
11 The application is brought under the definition of “serious injury” contained in ss(1) of s325 of the WIRC Act, which requires the plaintiff to prove that he has suffered a permanent serious impairment or loss of body function.
12 The relevant considerations which apply to such an application are as follows:
(a)The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment with Godings on or after 1 July 2014;
(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;
(c)The plaintiff bears the onus of proof to be determined upon the balance of probabilities;
(d)Sub-section (2)(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 a 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)Sub-section (2)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(f)Sub-section (2)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing, and permanently;
(g)In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[3] 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(2)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[3](2005) 14 VR 622
13 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, disclose my pathway of reasoning in dealing with the evidence and the issues raised by this application.
14 I have read the exhibited material and taken into account the evidence of the plaintiff in this case in making this decision.
The Plaintiff’s background
15 The plaintiff was born in 1962 and is now fifty-five years of age. The plaintiff is a married man and does not have dependent children.
16 The plaintiff was educated to Form 5.[4] Upon the completion of his formal education, the plaintiff then commenced and completed a diesel mechanic apprenticeship. He worked on farm machinery at Cobden Tractors and Machinery until 1994. The plaintiff then changed his employment as a mechanic to Windmill Ag, which was in Terang, for a number of years. He then again transferred his employment as a diesel mechanic to Gilberts Trucks & Tractor Service at Camperdown.[5] In 2001, the plaintiff commenced running his own business known as Speedway Spares in Cobden. He maintained that business for approximately six years. The business was not a great financial success and he then returned to employment as a welder in 2009 at All Lifting & Safety Pty Ltd in Campbellfield.[6]
[4]PCB 2
[5]PCB 2 – 3
[6]PCB 3
17 The plaintiff commenced employment with Godings on a full-time basis as a diesel mechanic in February 2010. The plaintiff remained in full-time employment until 2 March 2015, when he injured his back. He returned to work for a short period of time on modified duties, doing very light duties, which he described as answering the telephone. On 8 December 2015, the plaintiff was made redundant by Godings.[7]
[7]PCB 4
The Plaintiff’s injury with Godings in March 2015
18 The plaintiff set out in his affidavit the circumstances of the injury to his lower back which occurred on 2 March 2015 in his affidavit dated 29 March 2017. He stated as follows:
“I had [a] further significant episode of back pain in the course my work for Godings on 2 March 2015. This occurred when I was at the depot in Whittlesea and was lifting a large and heavy lawnmower onto a workbench to carry out welding work on it. I was not able to use the overhead crane to assist in getting the mower onto the workbench because at the time it was not working. As I was lifting the mower onto the bench I felt a lot of back pain.”[8]
[8]PCB 3-4
19 The defendant accepts that the plaintiff was injured in the manner described, and has accepted the claim made by the plaintiff in respect of the injury to his lower back.
20 After the injury to his back, the plaintiff attended his general practitioner, Dr Shameen Jahan, at the Craigieburn Super Clinic. He was referred for treatment by the physiotherapist, Ms Pamela Teoh.[9] The plaintiff continued with physiotherapy and hydrotherapy treatment and was prescribed Panadeine Forte for pain relief. The plaintiff ceased taking Panadeine Forte due to the side effect of constipation.[10]
[9]PCB 4
[10]PCB 4
21 On 5 March 2015, the plaintiff was referred for a lumbosacral CT scan. The CT scan report of 5 March 2015 noted the following:
“Mild changes of osteoarthritis affect the facet joints between L3 to S1 with the process more pronounced inferiorly. The other facet joints have a normal for age appearance.
…
No evidence of neural impingement. Mild spondylitic changes in the inferior lumbar spine as outlined above.
60% - 70% compression fracture of the T12 vertebral body as outlined above.”[11]
[11]PCB 68
22 I note, for completeness, this is the first time that any diagnosis was made in respect of the plaintiff’s T12 vertebral body.
23 The plaintiff was then referred to see orthopaedic surgeon, Mr Ishfaq Hussaini. Mr Hussaini first saw the plaintiff on 2 April 2015. Dr Hussaini noted the CT scan report, and stated as follows:
“He has had a CT scan of the lumbar spine, which had been reported to show an old compression fracture of the 12th thoracic vertebra. …
Clinically the compression fracture of T12 did not appear to be an acute one, however he appeared to have an acute disc protrusion possibly at L4/5, L5/S1 level.
… .”[12]
[12]PCB 46
24 Mr Hussaini then diagnosed the plaintiff as suffering from a chronic compression fracture of the T12 vertebral body and an acute disc protrusion at L5-S1.[13] Mr Hussaini’s prognosis for the plaintiff was as follows:
“At his last review on 14 May 2015, Mr. Wiggins had ongoing low back and radicular type of pain from acute disc protrusion at L5-S1. His prognosis was guarded as he was awaiting further investigation in the form of a bone scan and had to arrange a consultation with a spinal or a neurosurgeon for acute disc protrusion.”[14]
[13]PCB 47
[14]PCB 47
25 Mr Hussaini ordered an MRI scan of the plaintiff, which took place on 28 April 2015.
26 The MRI scan report of 28 April 2015 noted the following in respect of the plaintiff’s lumbar spine:
“AT L5-S1, there is a central – left paracentral proximal foraminal disc protrusion, which contacts the traversing left S1 nerve in the lateral recess but does not clearly compress it. The L5 nerve exits normally.
…
Central – left paracentral – proximal foraminal left L5-S1 disc protrusion, which contacts the traversing left S1 nerve, but it does not clearly compress it.”[15]
[15]PCB 48
27 The plaintiff was then referred to Mr David de la Harpe, orthopaedic surgeon, who reviewed the plaintiff on 24 July 2015. Mr de la Harpe, in his report, concentrates on the injury to the T12 crush fracture and connects it to the plaintiff’s work injury in December 2013. Mr de la Harpe’s opinion was that the plaintiff is not an appropriate candidate for surgery, and recommended physiotherapy and hydrotherapy programs to alleviate his symptoms. Mr de la Harpe’s opinion was that the plaintiff was not to engage in heavy manual labour as it will aggravate his current condition.[16]
[16]PCB 38
28 The plaintiff’s current treatment regime is that he does exercises predominantly at home. He takes Cymbalta and Nurofen medication to alleviate his pain symptoms.[17] He stated that in respect of the Court hearing day, he gave evidence that he had taken Indocin tablets and Nurofen in the morning in order to get through the day.[18] The plaintiff stated that he was booked into see Dr Clayton Thomas, a pain management specialist, in April 2018, and was hoping that he would get some positive relief from that treatment.[19]
[17]Transcript (“T”) 31
[18]T33
[19]T31
29 The plaintiff was off work for approximately ten weeks after his initial accident and then resumed light duties at Godings. He remained in the light-duties role until he was made redundant on 8 September 2015. The plaintiff described his light duties at Godings as “just filling in time”.[20]
[20]T47
30 The plaintiff has not worked since that time. The plaintiff had made efforts to try and obtain employment, citing applications as an Uber driver, and other truck-driving-related activities. The plaintiff has been unable to obtain employment. In the course of his evidence, the plaintiff was asked the following questions:
Q: “Retail jobs. That’s sales, customer service; that kind of thing?---
A: Yes. That kind of thing, yes.
Q: Collecting light stock, that kind of thing?---
A:Yes. Even one was a delivery driver but as soon as I said I had a bad back it didn’t go any further.
Q:These positions were full-time?---
A:Some were full-time, some were part-time. Mostly part-time.
Q:You were prepared to work as many hours as you could in part-time employment?---
A:Yes. I want to work again.
Q:Are you prepared to work more than 20 hours a week if someone gave you a job?---
A:I have got to try something.
Q:If someone gave you a job for 40 hours a week would you try that?---
A:I would certainly try it, yes.
Q:Thirty hours?---
A: I would try anything.”[21]
[21]T24, L18-31
31 I accept the plaintiff’s evidence in this regard and, in particular, that he is willing to try any type of employment that is suitable for him in order to earn a living.
Loss of earning capacity
32 The contest in this serious injury application focused on the plaintiff’s ability to return to work in suitable employment and, thereafter, to determine the level of loss of earning capacity he has suffered as a result of the injury to his lower back in March 2015.
33 In order to establish that the plaintiff be given leave to bring proceedings in respect of loss of earning capacity, he must establish that:
(a)at the date of the hearing, the plaintiff has a loss of earning capacity of 40 per cent or more pursuant to s325(1)(e)(i) and;
(b)after the date of the hearing, the relevant loss of earning capacity will continue permanently: s325(1)(e)(i).
34 The measurement of loss of earning capacity is set out as a comparison between “without injury” earnings and the capacity of “after injury” earnings that the plaintiff has if engaged in suitable employment. The former must be calculated by reference to the six-year period specified in s325(1)(f). These earnings consist of a gross income expressed at an annual rate that the worker was capable of earning from personal exertion, or would have earned, or would have been capable of earning from personal exertion had the injury not occurred.
35 In the calculation of the “without injury” earnings capacity of the plaintiff, the summary of income taxation returns was set out in the Plaintiff’s Court Book at page 114. In the financial year ending 30 June 2012, the plaintiff had a gross income of $62,690. The evidence in this case was that the plaintiff achieved that income as a result of him being a supervisor at Godings. I accept that the plaintiff has proven, on the balance of probabilities, that he had a “without injury” earning capacity of $62,690 per annum. Therefore, despite the fact that at his place of employment he was required to return to work “on the tools” and, consequently, his income was reduced for the two subsequent years, I find that the higher figure of $62,690 is a demonstrated capacity of the plaintiff to earn that level of income from his personal exertion as a gross figure per year.
36 Since the plaintiff was terminated and made redundant in September 2015, he has not worked and has not been employed in any capacity whatsoever.
37 Based on that finding in respect of “without injury” earnings, the 60 per cent gross per annum figure for the plaintiff is $37,610. In the event that a court found that the plaintiff was capable of earning, in suitable employment, a gross annual income greater than $37,610, his application for serious injury certification in respect of loss of earning capacity would fail. The onus is upon the plaintiff to prove he has a 40 per cent loss of earning capacity and that that loss of earning capacity is permanent in the sense that it is for the foreseeable future.
Medical evidence
38 The plaintiff has consulted two general practitioners since the time of his injury in March 2015.
Dr Shameem Jahan, General Practitioner
39 Dr Jahan prepared two reports, dated 6 March 2015 and 3 February 2016, in respect of this application. Dr Jahan was involved in the early treatment and referral to specialists for the plaintiff’s back condition. Dr Jahan has certified the plaintiff as being fit for suitable employment from the period of 31 December 2016 until 14 September 2017.[22]
[22]DCB 104-123
40 In her report dated 6 March 2015, which was directed to Mr de la Harpe, Dr Jahan noted that the plaintiff attended her on 2 March 2015. The plaintiff was complaining of lower back pain. She prescribed Brufen and Panadeine Forte for management of his condition.
41 In a later report dated 3 February 2016, Dr Jahan noted, in respect of the plaintiff’s work capacity, as follows:
“Early Sept’15 Mr. John was assessed by an independent medical examiner Associate Professor Dr. Bruce Love, Orthopaedic specialist. In his view, Mr. John will permanently have a work restriction where he will not be able to engage in tasks that involve repeated bending and stooping or lifting of objects of more than 10 Kg. If he is to obtain alternate employment, it ideally should be work that does not involve prolonged standing and repeated bending and stooping along with restriction of heavy lifting. He cannot return to pre injury duties and hours. He will permanently require alternate duties.”[23]
[23]PCB 30
Dr Fred Low, General Practitioner
42 The plaintiff transferred his medical care from Dr Jahan to Dr Fred Low in December 2017. Dr Lowe prepared a medical report dated 6 March 2018 for the purposes of this application. Dr Lowe noted that the general consensus of the medical specialists was that the injury to the plaintiff on 2 March 2015 “had made symptomatic the degenerative lumbar spine and exacerbated a previous fracture of T12”.[24]
[24]PCB 66
43 Dr Low noted that the plaintiff suffers from chronic back pain radiating to his left buttock.[25] Dr Low prescribed the plaintiff with the antidepressant, Cymbalta, in January 2018, which is also indicated for chronic pain, with some report of symptomatic improvement in his mood and lower back pain.[26] Dr Low noted that he had referred the plaintiff to Dr Clayton Thomas, as pain specialist, and that the plaintiff was waiting for that appointment to take place.
[25]PCB 66
[26]PCB 67
Mr David de la Harpe, orthopaedic surgeon
44 The plaintiff was examined by Dr de la Harpe on 24 July 2015. Dr de la Harpe diagnosed the plaintiff as suffering from an old T12 wedge fracture and degenerative change in the lumbar spine without neural compression, myelopathy or radiculopathy.[27] Mr de la Harpe did not recommend any surgery for the plaintiff’s lower back condition. Mr de la Harpe’s opinion in relation to the plaintiff’s ability to return to work is as follows:
“The prognosis of Mr Wiggins’ condition is reasonable however I do not think it is appropriate for him to return to work involving heavy manual labour as this may aggravate his degenerative condition. My prognosis is still somewhat guarded as I have not reviewed him following his progression through a rehabilitation program.”[28]
[27]PCB 37
[28]PCB 38
Mr Ishfaq Hussaini, orthopaedic surgeon
45 Mr Hussaini prepared a report dated 25 July 2016 in respect of this proceeding. Mr Hussaini diagnosed the plaintiff as suffering from an acute disc protrusion at L5-S1. He noted as follows:
“At his last review on 14 May 2015, Mr. Wiggins had ongoing low back and radicular type of pain from acute disc protrusion at L5-S1. His prognosis was guarded as he was awaiting further investigation in the form of a bone scan and had to arrange a consultation with a spinal or a neurosurgeon for acute disc protrusion.”[29]
[29]PCB 47
Mr David Brownbill, consultant neurosurgeon
46 The plaintiff was seen by Mr Brownbill on 21 November 2017 for the purposes of medico-legal reporting in this proceeding. Mr Brownbill noted the plaintiff had not returned to any work. He then noted that the plaintiff was not receiving any physical treatment. The plaintiff gave a history of taking allopurinol, Indocid, prednisolone, Nurofen, and four tablets of Panamax a day. Mr Brownbill reviewed the MRI scan of the lumbar spine which was performed on 28 April 2015. He noted the findings as reported by Dr Arhanghelschi, radiologist, in the MRI scan conducted on 28 April 2015, as follows:
“… ‘old fracture of T12 vertebral body. No canal or neural compromise. Central left paracentral proximal foraminal left L5-S1 disc protrusion which contacts the traversing left S1 nerve but does not clearly compress it’.”[30]
[30]PCB 56
47 Mr Brownbill then reported:
“I have reviewed those films and agree with the report, noting also the annular tear at L5-S1.”[31]
[31]PCB 56
48 Mr Brownbill set out his opinions as follows:
“1/. I consider this man has sustained soft tissue injuries to structures about the lower back with likely aggravation of lumbar spine degenerative changes most probably at L5-S1.
… .”[32]
[32]PCB 57
49 Mr Brownbill’s opinion was that the plaintiff’s condition had stabilised.[33] Mr Brownbill then went on to say:
“4/. As a consequence of the physical injury and impairment of this man’s back I consider he is likely to be restricted in relation to employment or activities involving heavy lifting or forced spinal mobility in a moderate to marked extent and I consider such incapacity will continue for the foreseeable future.”[34]
[33]PCB 57
[34]PCB 57
50 Mr Brownbill then went on to state that he did not consider that the plaintiff had the capacity to perform his pre-injury duties and that he considered that incapacity was permanent. Mr Brownbill’s opinion was that the plaintiff had a capacity to attempt a return to work performing suitable employment, avoiding the activity restrictions referred to above, and the number of hours he could work would be dictated by his responses to the work.[35] Mr Brownbill accepts that the plaintiff was suffering pain in his lower back which would fluctuate in severity from time to time.
[35]PCB 58
Dr David Kennedy, sports and industrial physician
51 Dr Kennedy examined the plaintiff for the purposes of medico-legal reporting on 9 November 2017. He prepared a report dated 22 November 2017. Dr Kennedy’s opinion is as follows:
“Mr Wiggins had previously injured his lower back at work in 2013 and this probably led to the compression fracture of the vertebral body at T12 and, following that incident, Mr Wiggins had had some intermittent but minimal pain in his mid to lower back until the incident at work on 2 March 2015 and, on the balance of probabilities, that incident resulted in an acute exacerbation and further compression of the vertebral body at T12 and damage to the intervertebral discs at L4/5 and L5/S1 with a left central paracentral disc protrusion contacting the traversing left S1 nerve root.”[36]
[36]PCB 63
52 Dr Kennedy went on to state, in relation to the plaintiff’s abilities to engage in employment in the future, as follows:
“… Mr Wiggins will have difficulty returning to any occupational duties and this is likely to be permanent and last for the foreseeable future because of the significant incapacities involving his lumbar spine, and to some extent, his left lower extremity.”[37]
[37]PCB 64
53 I do not accept Dr Kennedy’s opinions in totality. The other medical practitioners who have seen and examined the plaintiff agree that he has a significant lower back injury. However, they do not go as far as to say that the plaintiff has no capacity for any employment.
Associate Professor Miron Goldwasser, orthopaedic surgeon
54 Associate Professor Goldwasser examined the plaintiff for the purposes of legal-medico reporting on behalf of the defendant. He prepared a report dated 25 November 2016. His opinion was as follows:
“The injury on 2 March 2015 appeared to affect the lower lumbar spine, probably aggravating pre-existing degenerative changes at the L5/S1 disc level.”[38]
[38]DCB 27
55 This report by Associate Professor Goldwasser was for the purposes of an impairment assessment and not directly related to the plaintiff’s capacity for employment in the future.
Dr Peter Boys, orthopaedic surgeon
56 Dr Boys prepared two reports for the purposes of this proceeding dated 17 December 2015 and 15 August 2017. In his second report, Dr Boys set out the plaintiff’s current work capacity as follows:
“Mr Wiggins does suffer limitation of his capacities to ambulate associated with an unrelated inflammatory condition of the ankles and feet (gouty arthropathy). This gentleman’s lower back condition does limit his capacities for prolonged seated and standing posture and necessitates limitation of lifting activities, at this time, to light weights only (approximately 5 kg).
I believe this gentleman would be capable of light suitable duties employment limiting requirements for repetitious low level bending, heavy low level lifting and protracted ambulatory activities.”[39]
[39]DCB 49
57 Mr McGarvie, on behalf of the plaintiff, relied upon part of this report to indicate that Dr Boys thought that the plaintiff could only perform twenty hours of work per week. I think that was a misinterpretation of the manner in which Dr Boys was answering questions put to him by the defendant’s solicitors.
Dr Philip Mutton, consultant occupational physician
58 Dr Philip Mutton has prepared two reports in respect of his examination of the plaintiff dated 26 July 2017 and 17 January 2018. In his first report, Dr Mutton sets out the capacities of the plaintiff to engage in employment as follows:
“… he should avoid heavy physical work putting stress across the back. This involves lifting no more than 10 kg on a regular basis, avoiding bending at the back, in particular at the waist, and avoiding pushing, pulling, and straining.
He can transfer his skill base into a sales area. He has competence in terms of sales having run his own shop for a period of time and having done some small business training. … .
He can do light bench work such as light container filling or light packing work in a factory situation. He can do some light process work. He can do work such as a weighbridge operator or he can do work such as a surveillance room operator. He can do administration work and/or call centre work. He should avoid professional driving tasks with associate[d] prolonged sitting.”[40]
[40]DCB 56
59 Dr Mutton goes on to state that the plaintiff would require specific training to perform the tasks which he identified as possible employment for the plaintiff.[41]
[41]DCB 56
60 Dr Mutton, in his later report in January 2018, had the advantage of having received a report from Recovre, dated 18 December 2017, in respect of the plaintiff’s capacity for suitable employment.
61 Dr Mutton stated that the plaintiff was restricted to sales work, light bench work, factory work and administration work, and that he needed to avoid repetitive lower back bending or lifting more than 5 to 10 kilograms, and he should avoid prolonged sitting. Dr Mutton then noted the report from Recovre and he discussed those three positions set out in that report with the plaintiff. While the plaintiff stated to Dr Mutton that he thought he could undertake those duties, Dr Mutton’s opinion was that the plaintiff could not perform the tasks of a rental sales person, as he did not believe that the plaintiff was able to move motor vehicles, even if it was once per day. Dr Mutton noted that the plaintiff suffered from degenerative change in his lower back and suffers predominantly from chronic lower back pain, which was managed with medication. He was of the opinion that the plaintiff would have absences from employment due to his chronic back pain, and that they would need to be accommodated.
62 Dr Mutton noted that the plaintiff was applying for full-time and part-time jobs. In Dr Mutton’s opinion, the plaintiff would not be able to work full time. Dr Mutton had noted that the plaintiff was uncomfortable in the short period of time that he was examining the plaintiff on the second occasion. Dr Mutton’s recommendation was that the plaintiff start a job at two to three days for half days, with a view to increasing to full-time employment, depending upon his capacity. Finally, Dr Mutton went on to state:
“I think that it will be difficult for him to work more than half time even in the longer term.”[42]
[42]DCB 60
63 The plaintiff has not worked since being retrenched in September 2015. He has been examined by numerous medical practitioners, all of whom, in general, agree that the plaintiff is only suitable for light duties. The plaintiff has not been engaged in a return-to-work program, or any retraining program, since the time of his retrenchment. Dr Mutton, who is a specialist in the field of occupational health, has formed the opinion that the plaintiff would not be able to work more than half time in the longer term. This was employment of light duties where the plaintiff would have the capacity to interchange between sitting and standing as he wished.
64 I find that, based on the medical evidence and on the evidence of the plaintiff that he is willing to engage in employment, he does have a capacity for suitable light work employment to the extent of half time. That is, I accept that he may be able to work, in the future, up to as many as twenty hours per week. Given the length of time he has been out of work and the fact that he has not even been trialled on a graduated return-to-work program, the twenty hours of part-time employment would be the maximum that the plaintiff would be able to achieve into the future. The medical opinion readily accepted of all doctors is that the plaintiff is incapacitated, yet motivated to work.
Occupational therapists
Vocational Directions Pty Ltd report
65 The plaintiff filed and relied upon a report of Vocational Directions Pty Ltd dated 16 January 2018. That report was forty-four pages in length. Mr Paul Hartley is the author of that report and his qualifications are that of a social worker and qualifications in psychiatric social work. Mr Hartley also has a Bachelor of Applied Social Science in the United Kingdom. After reviewing the IPAR and Recovre reports, Mr Hartley formed the view that the plaintiff did not have the capacity to fulfil any of the requirements of the roles set out in those reports. He went on to say that he was unable to find any role that would be suitable for the plaintiff to do in order to obtain employment. He noted that the plaintiff required comprehensive computer retraining, enhancement of his writing skills and vocational training in order to be able to access physically suitable employment. Mr Hartley concluded that the plaintiff had no realistic prospect of being able to find employment in the current labour market given his current incapacity for employment as a result of his work injury.[43]
[43]PCB 72
IPAR Report
66 Ms Elizabeth Hall prepared a report dated 28 February 2017. In that report, Ms Hall identified the roles as follows:
·automotive service advisor
·spare parts interpreter
·warehouse administrator
·sales assistant
·product quality controller
·console operator.[44]
[44]DCB 81
67 I note that when Ms Hall was preparing her report, she did not have in her possession the two reports of the occupational physician instructed by the defendant to examine the plaintiff; that is, Dr Mutton. When the plaintiff was being cross-examined about these particular jobs, it was clear he had extremely limited capacity to even engage in such employment due to his lack of skills and training. These issues were outside the physical capacity for him to do the work.
68 In respect of the automotive service advisor role, I accept the plaintiff’s evidence that his computer skills were not up to the standard required to perform that task.[45]
[45]T42
69 In respect of the role of spare parts interpreter, the plaintiff gave evidence that he had been to Repco in order to obtain employment as a spare parts interpreter, and was unable to get a start due to his lack of computer skills and the systems contained within that business.[46]
[46]T52
70 The plaintiff was asked about the warehouse administrator position and, again, it was a role that he had not performed, nor was he suitably trained for it. In respect to the console operator position, the plaintiff initially thought he was able to do it, but having made enquiries of a friend, discovered that he would be required to restock fridges and wheel gas bottles around on pallets for that part of the business. He stated he could not, and would not, be able to physically do those tasks.
71 In respect of the product quality controller role, the plaintiff stated to Ms Hall that he was not suitably trained or appropriately qualified for employment of that kind.
72 Ms Hall’s report does not take into account the opinion of Dr Mutton that the plaintiff would require a graduated return-to-work program commencing with part-time work with a gradual increase of those hours. Dr Mutton’s opinion, of course, was that the plaintiff would not be able to work more than half normal hours.
Recovre report
73 Ms Janette Ash, occupational therapist, prepared a report dated 18 December 2017 on behalf of Recovre. It is to be noted at the outset that Ms Ash never met with the plaintiff and relied upon the instructions of the defendant’s solicitors and the first report of Dr Mutton dated 26 July 2017. It was clear from her report that she was never given an opportunity to consider the second report of Dr Mutton, which was dated 17 January 2018.
74 Ms Ash sourced three roles that, in her view, the plaintiff could perform. The first role was one of a sales assistant/customer service operator which was in a retail construction homewares chain.
75 The second role identified by Ms Ash was a rental sales person in a vehicle hire business. This was the job that Dr Mutton said the plaintiff could not perform due to his physical injuries.
76 The third role was that of a warehouse transport clerk in a distribution warehouse which was based in Somerton. The customer service ordering clerk role was located in Springvale. The evidence in the proceeding was that the travel time between the plaintiff’s place of residence and employment at Springvale would be approximately one-and-a-half to two hours in either direction. Given the opinion of Dr Mutton in respect to the amount of time that the plaintiff could be seated and driving a vehicle, this job was not a realistic option for the plaintiff. While the Recovre report states that this same business had retail stores across Melbourne and regional Victoria, the only one position Recovre could identify which was available, was in Springvale. I do not accept that this was a realistic or suitable option for employment of the plaintiff.
77 The one task or role which could be suitable employment for the plaintiff was a warehouse transport clerk. This role was within a short distance of the plaintiff’s place of residence so it passed the Giankos v SPC Ardmona Operations Limited (No 2)[47] test of being in a reasonable distance from the plaintiff’s place of residence and available to him. In the course of the plaintiff’s evidence, he stated that he was prepared to give this job a try and thought he could do it. Over the luncheon adjournment I organised for him to have a copy of a full set of requirements for that job.[48] The plaintiff was subsequently asked questions relating to the tasks required of him to perform that particular job. In particular, the plaintiff was unable to do the computer work related to the Outlook, Scale, Matrix and Excel programs.[49] The plaintiff was unable to walk the distance of 100 metres on any regular basis at the place of employment.
[47][2011] VSCA 121
[48]Which were set out at pages 96 to 98 of the DCB
[49]DCB 97
78 I find that, at the very best, the plaintiff would have been able to work, at a maximum, half time in this particular employment. This assumes, of course, that the employer would have been able to find a suitable role for a part-time employee, such as the plaintiff, in that job.
79 The test for suitable employment, as it is defined under the Act, is as follows:
“35. The term ‘suitable employment’ is defined as:
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited–
a. having regard to the following–
i. the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
ii. the nature of the worker’s pre-injury employment;
iii. the worker’s age, education, skills and work experience;
iv. the worker’s place of residence;
v. any plan or document prepared as part of the return to work planning process;
vi. any occupational rehabilitation services that are being, or have been, provided to or for the worker;
b. regardless of whether –
i. the work or the employment is available; or
ii. the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes–
c. employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
d. employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
e. suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational education.”[50]
[50] into account the considerations applicable for suitable employment, I am not satisfied that the plaintiff has received the occupational rehabilitation services that are required, at this stage, to equip him to complete the computer aspects of this warehouse position. Nevertheless, he is someone who is prepared to undergo further pain rehabilitation with Dr Clayton Thomas, and this may ameliorate some of his pain difficulties.
81 I accept the evidence of Dr Mutton, a highly qualified and experienced occupational physician, when he says that the plaintiff would not be able to work more than half time in the longer term. In the course of argument in this case, the solicitor for the defendant very helpfully prepared a two-page schedule of economic loss calculations for this case. In that schedule, the warehouse transport clerk job nominated by Recovre was said to earn $23.28 per hour. Taking that figure as the per hour rate, and multiplying it by twenty hours per week for a fifty-two-week year would achieve a gross annual income of $24,200, approximately. I have previously stated that the pre-injury earnings, based on the evidence in this case, is $62,690 gross per annum. The 60 per cent threshold of those gross annualised earnings is $37,614. On those findings, the plaintiff has fallen in excess of $13,000 short of the threshold required to establish his 40 per cent loss of earning capacity as a result of the injury to his lower back.
Conclusion
82 I find that the plaintiff has suffered a loss of earning capacity in excess of 40 per cent of his pre-injury earnings. The loss of earning capacity is permanent. I have found that the plaintiff is willing to engage in employment of any jobs that could be offered to him. I also find that he is not able to perform at the level that is required to achieve a gross annual income greater than 60 per cent of his pre-injury earnings.
83 The plaintiff is granted leave to bring a claim for damages for pain and suffering and loss of earning capacity as a result of an injury to his lower back on 2 March 2015 in the course of his employment with Godings.
84 I will hear the parties on costs.
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