Williams v Victorian WorkCover Authority
[2019] VCC 1945
•29 November 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-04994
| SARAH WILLIAMS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August 2019 | |
DATE OF JUDGMENT: | 29 November 2019 | |
CASE MAY BE CITED AS: | Williams v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1945 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – permanent serious impairment to the function of the left leg – pain and suffering consequences and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Weldemichael v ID Sales and Repairs Pty Ltd [2019] VSCA 68; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Application successful. Leave is granted in respect to pecuniary loss damages and pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr S Jurica | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr M Clarke | Wisewould & Mahony |
HIS HONOUR:
Introduction
1 The plaintiff pursued an application by way of Originating Motion dated 27 October 2017 for the grant of a certificate to commence common law proceedings for pain and suffering damages and pecuniary loss by reason of a permanent serious impairment to the function of the left leg. For the reasons that follow, I am satisfied the plaintiff is entitled to the grant of leave.
The issue in dispute
2 Despite substantial medical material having been generated in relation to the plaintiff, at the hearing of the motion, the issue in dispute was refined to the question whether she has established a loss of earning capacity under the Accident Compensation Act 1985 (“the Act”). Both parties conducted the proceeding on this basis.
3 It was not contended by the plaintiff that she does not have a current work capacity. It would have been contrary to the medical evidence for her to have argued otherwise. The controversial question is the extent to which the plaintiff has a capacity for suitable employment, and the onus falls to her in those circumstances, if suitable employment has been identified, to prove that she does not have a capacity to undertake the same. Has the defendant identified the existence of suitable employment? For the reasons that I will explain, I am not persuaded that it has. If I am wrong about that, then I am satisfied that the plaintiff has proved that she does not have the capacity for the suitable employment. I am therefore satisfied that she has established a loss of earning capacity. My reasons for arriving at such a finding follows.
4 The plaintiff must satisfy the Court that the consequences of the injury she has suffered is serious with respect to a loss of earning capacity. Because she asserts that she has sustained a serious injury by reference to a loss of earning capacity, she must show that, at the date of the decision on whether to grant leave, that she has sustained a loss of earning capacity of 40 per cent or more, and she will, after the date of the decision, continue, permanently, to have a loss of earning capacity which produces a financial loss of 40 per cent or more. The Court must determine the plaintiff’s preinjury and post injury earning capacity as part of the exercise to determine whether there is a 40 per cent loss due to the injury.
5 When determining preinjury earning capacity, the Court is required to choose a methodology that most fairly reflects the plaintiff’s earning capacity if the injury did not occur.
6 The parties agreed that the plaintiff’s without injury earnings were $42,364 and that, therefore, to make good the contention that she has suffered a loss of earning capacity that is serious, she must establish that she has lost, and will continue to, suffer a loss of earning capacity of 40 per cent or more of her preinjury earning capacity. The threshold figure of $489 per week, was the agreed sum arrived at between the parties.[1]
[1]Transcript (“T”) 53
7 The plaintiff relies on the function of the left leg and, in particular, the left knee and hip. Although the plaintiff had a prior injury connected to her lower back, neck and left shoulder, there were no previous problems with her left knee. Neither party sought to make an issue of the matter of the plaintiff’s previous injury and medical history.
8 Mr McGarvie QC, together with Mr Jurica of counsel, appeared for the plaintiff, and Mr Clarke of counsel appeared for the defendant.
The evidence
9 The plaintiff swore three affidavits in support of her application.[2]
[2]Dated 12 April 2017, 23 April 2018 and 1 August 2019, Exhibit P1, Plaintiff’s Courtbook (“PCB”) 10-25
10 In some short additional evidence adduced orally from the plaintiff, she made reference to her third affidavit and to having commenced an 18 month Diploma course in mental health in July 2018. She said the course occupied her for four-and-a-half hours on Mondays.[3]
[3]T12
The medical and like evidence
11 The plaintiff tendered the following evidence:
·Three affidavits sworn by the plaintiff 12.4.17, 23.4.18 and 1.8.19[4]
[4]Exhibit P1, PCB 10-25
·Report of Dr Melissa Soares (General Practitioner) dated 1.4.16[5]
[5]Exhibit P2, PCB 52
·Reports of Dr Ariane D’Argent (General Practitioner) dated 31.3.17 and 8.7.19[6]
·Report of Mr Joseph Robin (Orthopaedic Surgeon) dated 10.9.14[7]
·Reports of Dr Neels Du Toit (Pain Specialist) Operation Report (left knee genicular nerve block) dated 14.6.19 and 22.7.19[8]
·MRI left knee dated 31.10.13[9]
·Report of Mr Sam Patten (Orthopaedic Surgeon) dated 24.11.15[10]
·Reports of Dr Siva Chandrasekaran (Orthopaedic Surgeon) dated 5.3.18, 19.3.18, 16.4.18 and 15.4.19[11]
·Reports of Dr Dominic Yong (Occupational Physician) dated 28.3.18, 16.4.18 and 17.4.19[12]
·Report of Mr Michael Troy (Orthopaedic Surgeon) dated 6.4.16[13]
·Earnings reports of Flexi Personnel dated 17.2.17 and 11.5.18[14]
[6]Exhibit P3, PCB 59, 203
[7]Exhibit P4, PCB 64
[8]Exhibit P5, PCB 81-82
[9]Exhibit P6, PCB 87
[10]Exhibit P7, PCB 101
[11]Exhibit P8, PCB 109-116
[12]Exhibit P9, PCB 141-164
[13]Exhibit P10, PCB 183.1-183.6
[14]Exhibit P11, PCB 196-198
12 The defendant tendered the following evidence:
· Reports of Mr Clive Jones dated 14.4.15 and 16.4.15[15]
[15]Exhibit D1, DCB 1-5
· Reports of Dr Michael Baynes dated 5.9.17, 18.4.18 and 16.5.19[16]
[16]Exhibit D2, DCB 6-22
· Reports of A/Professor Max Esser dated 24.6.19 and 1.7.19[17]
[17]Exhibit D3, DCB 23-36
· Suitable Employment Report dated 11.4.18[18]
[18]Exhibit D4, DCB 37-71
· Report of Mr Kunashe Parwada dated 22.3.18[19]
[19]Exhibit D5, PCB 76
The plaintiff’s circumstances
13 The plaintiff arrived in Australia from Sierra Leone as a refugee in 2009. She commenced with her employer in 2010 as a casual cleaner and laundry worker, and then graduated to the role of personal care attendant in January 2012. She undertook an aged care course that qualified her with a Certificate III in Aged Care. While in the employ of the defendant, she undertook further studies and obtained a Certificate IV in Disability.
14 It was while working as a personal care attendant with the defendant that she was injured. She was kicked by a patient suffering Dementia. The date of injury was 14 May 2013.
15 She attended upon her general practitioner, Dr Melissa Soares, and although there was a report that the injury was to the plaintiff’s right knee and right shin, there was no dispute between the parties that this was an error on the part of the doctor and no point was taken by the defendant in regard to it.
The Plaintiff’s course of medical treatment
16 Dr Soares ceased to be the plaintiff’s general practitioner, and the plaintiff’s general medical care was taken over by Dr Ariane D’Argent, who continues to treat the plaintiff, and who diagnosed the injury to the left knee as a medial meniscal tear with femoral condyle damage.[20]
[20]PCB 59
17 The plaintiff underwent surgery by way of an arthroscopy on 3 July 2014. Mr Michael Khan, orthopaedic surgeon, organised an MRI scan that identified the injury, but the surgery was undertaken by Mr Joseph Robin. Since the surgery was performed, the plaintiff has experienced the development of ongoing hip problems and has continued to suffer from left knee pain.
18 The plaintiff came to be assessed by a Medical Panel on two occasions and two Medical Panel reports issued; the first in 2016, when it was determined that the plaintiff was suffering residual left knee dysfunction and residual left hip symptoms, and in 2017, when the plaintiff was assessed with a 6 per cent whole person impairment.
19 The plaintiff was engaged in a return to work program undertaking light duties. During the return to work the she logged hours that ranged between 9 hours per week and graduated to 15 hours, although there was a brief period of time when she managed 23 hours a week, however, that proved too difficult and she reverted to 15 hours a week, before she was terminated by her employer in December 2016.
20 Since being terminated, the plaintiff has participated in courses by way of further education, only some of which she has completed.
Medical opinions
21 I have read all of the medical material relied on by the parties and received in evidence. I do not intend to refer to all of it but, rather, I will address such of it as is warranted as relevant to the issues in dispute between the parties.
Mr Siva Chandrasekaran
22 Mr Chandrasekaran is an orthopaedic surgeon. He assessed the plaintiff at the request of the plaintiff’s solicitors for medico-legal purposes on 5 March 2018, and in his opinion[21] the plaintiff would not be able to effectively carry out her preinjury employment as a personal care attendant, but he thought that she may be suitable for alternative sedentary-type employment, although he considered that it would be realistically difficult for the plaintiff to secure employment in an open labour market and said that:
“… the left knee would make it difficult for her to perform manual tasks, such as bending, lifting and squatting, leading to pain restriction, disability and incapacity derived from the organic injury to her left knee.”[22]
[21]PCB 112
[22]PCB 112
23 Mr Chandrasekaran, in the second of two supplementary reports dated 16 April 2018, wrote that the plaintiff required a gradual return to duties and that she may be able to perform duties three hours a day, three times a week, and increasing the same, dependent upon her pain threshold.[23] He noted the plaintiff “would [require] frequent breaks of 30 mins every 2 hours.”[24]
[23]PCB 115
[24]PCB 115
24 In his report dated 15 April 2019, Mr Chandrasekaran noted that “the left leg injury most likely will continue within the foreseeable future, particularly as her left knee chondral pathology worsens and she develops further arthritic symptoms in the left knee”.[25] He considered the plaintiff’s prognosis as “guarded”.[26]
[25]PCB 119
[26]PCB 120
25 The plaintiff has been seen by occupational physicians.
Dr Dominic Yong
26 Dr Yong is a specialist occupational physician who examined the plaintiff, initially on 28 March 2018, and subsequently. He produced three reports. His first report bears the date of his initial examination.
27 On examination, the plaintiff presented with complaints of pain in her left knee, which she described as present all the time, as well as pain in her left hip, radiating around her left buttock. She was taking Lyrica, but that had caused side effects, and she was taking Panadol Osteo (six tablets a day) and Somac tablets (three a day), as well as having participated in hydrotherapy once a week for a total of 31 sessions.
28 Dr Yong had been provided with x-rays of the left and right knee, as well as of the pelvis and left hip, and the lumbar spine. He summarised the plaintiff as suffering left knee dysfunction following surgery for a meniscal injury and left hip dysfunction following an initial left hip soft-tissue injury. She reported that following the left knee arthroscopy, she experienced difficulty ambulating. She described trouble moving her left knee, and was using her lift hip more to ambulate and to do work at various heights. She said that, shortly after the left knee arthroscopy, she had the onset of her left hip symptoms.
29 Dr Yong assessed the plaintiff as capable of undertaking tasks with restrictions but avoiding squatting or kneeling tasks, firm pushing or pulling duties, prolonged standing and walking, climbing duties, lifting more than 5 kilograms on a repeated basis, and that her tasks should be initially reduced in working hours.
30 He assessed the various roles identified by the defendant as suitable employment, in a Nabenet 130 Week Vocational Assessment Report, namely:
·product quality controller
·product assembler (light items)
·light packer (confectionery)
·light food process worker
·customer services inquiry clerk.
31 In his opinion, none of the positions were suitable employment. The jobs of product quality controller, product assembler and light packer and light food process worker positions, he anticipated, would involve prolonged standing tasks and the handling of bulk products and, thus, could exceed his recommended restrictions. As to the customer services clerk role, he thought this would generally involve sedentary work, and he noted that the plaintiff had not previously worked in an office or customer service-based role and he would, therefore, not consider it suitable. Moreover, he wrote that the plaintiff would not have a current capacity to undertake alternative suitable employment on a reliable and consistent basis.
32 In a supplementary medical report, dated 16 April 2018, Dr Yong, addressed the Recovre Suitable Employment Report, dated 11 April 2018, that identified the following employment options:
· call centre operator
· receptionist
· community support worker
· justice officer
· admissions clerk.
33 Concerning the customer service officer (that Dr Yong described as the call centre operator job), he had regard to a worksite assessment that had been undertaken for the role, which described working in an office environment to create orders and utilising a phone and computer, as well as responding to emails and customer service duties, and tasks including loading paper and ink cartridges.
34 With respect to the role of a receptionist, he noted that a worksite assessment had been conducted at a neighbourhood community centre and the assessment described undertaking reception duties, including customer service tasks. It described working at a computer screen, and operating a computer and a cash register. It described manning the telephones.
35 He had regard to the community support worker position, for which a worksite assessment had been undertaken, and that included performing office-based duties, such as computer-based tasks. It described doing outreach tasks, involving meeting with clients out of the office, as well as working on telephones.
36 He had regard to the position of justice officer, for which a worksite assessment had been undertaken. He noted it was an office-based working environment, with front desk customer service duties. It described the undertaking of back-office administrative tasks and computer-based activities, as well as mail-related tasks.
37 With regard to the admissions clerk’s role, a worksite assessment had been undertaken, to which Dr Yong had regard, and that described the job as one performed in an office-based environment. It involved undertaking computer-based duties utilising operating system applications, such as Microsoft Outlook, Word and Excel. It described customer service duties, including face-to-face meetings with prospective residents and families, as well as filing duties.
38 Dr Yong reported that all duties proposed in the list of suitable alternative employment were office-based roles, with components of computer-based duties, and all involved customer service, for which the plaintiff had no previous experience, and he reiterated his earlier opinion that the plaintiff lacked the ability to perform these roles on a consistent and realistic basis in an open job market.
39 In a third report, dated 17 April 2019, Dr Yong recorded on examination that the plaintiff’s left knee and hip pain remained the same in terms of severity of pain to when he had reviewed her on 28 March 2018. He noted the plaintiff said her doctor had referred her to a pain management specialist who, in turn, had referred her to a pain management program in Dandenong. The plaintiff told Dr Yong she had the first assessment with the Pain Management Program in November 2018, and she commenced the program soon after. She said she was also doing an exercise program, but it had resulted in increased pain. She said the exercise program was due to finish in a few weeks. The plaintiff had not seen any new specialist, nor had she had any new treatment in the period between examinations. She told Dr Yong her left knee and hip pain was largely unchanged. She described her symptoms as left knee pain, which worsens with exercise. She said that her left knee locks and makes noises. She said there is reduced movement. She said she was experiencing persisting left hip pain, which increases after exercises.
40 The plaintiff’s treatment had been limited to Deep Heat, the use of hot packs, Panadol Osteo, four to six tablets a day; Nortriptyline, 10 milligrams at night; Lyrica, 75 milligrams three times a day; Somac, 40 milligrams a day and a pain patch worn 12 hours at night time. She was attending a multidisciplinary pain management program and undertaking home exercise on a daily basis, and attending a spa twice a week, where she finds respite by sitting in hot water.
41 The plaintiff told Dr Yong she had completed her Diploma in Community Services, including a placement as part of the Diploma, which involved her attendance for five hours on a Monday and Wednesday. She said that she performed customer service duties and casework-related tasks. She said she did not find it easy, and was experiencing pain that persisted. She stated she had suffered from absenteeism during her placement due to her pain.
42 The plaintiff told Dr Yong, she was attending class from 5.30pm to 9.00pm on a Monday night. She said her homework is mostly done by hand, but there can be some computer-related tasks which she performs at her own pace on her iPad, and she does about 20 minutes at night, where she can start and stop at her own pace.
43 The plaintiff said she lives alone. She attends her Church regularly, but it has proved necessary to change her place of worship, as she was struggling to travel the distance required. She said people come to visit her and they sometimes provide her with assistance in domestic activities. She said as long as she paces herself and takes regular breaks, she can clean, launder and cook.
44 Dr Yong identified the plaintiff’s reported functional capacity as comprising:
· sitting – 25 minutes
· standing – 25 minutes
· walking – 25 minutes
· driving – 15 minutes.
45 Dr Yong summarised the plaintiff as suffering the following conditions:
·left knee dysfunction following surgery for a meniscal tear
·left hip dysfunction following an initial left hip soft-tissue injury.
46 Dr Yong determined after taking into account the plaintiff’s left hip injury, that his previous recommended restrictions remained apt. Taking into account the left knee condition only, he said that his previously recommended limitations also remained applicable.
47 Dr Yong also reiterated his opinions in regard to each of the identified suitable employment options relied upon by the defendant.
Dr Neels du Toit
48 Dr du Toit is a sports and exercise physician to whom the plaintiff was referred by her general practitioner. Dr du Toit reported that the plaintiff presented for consultation on 8 August 2018 with a longstanding history of left knee, left thigh, hip, back and buttock pain. Dr du Toit prepared a report, dated 22 July 2018, at the request of the plaintiff’s solicitors. He noted that, on presentation, the plaintiff was concerned about constant left knee pain, despite having had arthroscopic surgery. He noted that the knee had been subjected to a medial meniscus tear, in combination with medial joint degenerative changes. He observed that, prior to her presentation, she also had undergone a left lateral hip trochanteric bursa injection that improved her lateral hip symptoms to some extent. She complained of experiencing pain in the knee constantly, made worse with weight bearing, and the pain in the hip was worse when sleeping on her left, affected side.
49 On examination, his finding was of left knee irritability on knee provocative testing. She had difficulty actively flexing the knee more than 90 degrees, and passive knee flexion was not much better whereupon she experienced severe anterior and medial knee pain. He found examination of the hip revealed irritability and reduced range of motion, and that she had very poor strength around the hip and knee joint. In his clinical opinion, the plaintiff presented with mostly left knee medial compartment osteoarthritis. She also presented with left lateral hip pain, which he thought was most likely due to trochanteric bursitis and gluteal tendon insertional tendinopathy.
50 He diagnosed the plaintiff as having suffered left medial knee compartment osteoarthritis and left lateral hip pain, most probably secondary to trochanteric bursitis and gluteal tendon insertional tendinopathy. He found chronic overriding neuropathic pain causing widespread pain and symptoms, together with signs of Allodynia, hypersensitivity and fear avoidance behaviour.
51 In response to a request for an opinion whether the plaintiff’s pain was organic in origin, he referred to her left knee medial compartment osteoarthritis, and that her degenerative changes were contributing to her medial knee pain. He found the gluteal tendon insertional tendinopathy and overlying trochanteric bursitis was contributing to her lateral hip pain. He noted her overriding neuropathic pain caused more widespread pain to the knee, legs, back, buttocks, thighs and hips. He commented that neuropathic pain develops from chronic pain, secondary to an injury to the small nerve endings.
52 In his opinion, the plaintiff has no current capacity to perform duties requiring pushing, pulling, or lifting. He also noted she has no capacity to perform repetitive pushing, pulling or lifting. She has a restricted ability to bend, reach forward and twist. She would require regular breaks in order to interrupt a prolonged sitting or standing posture.
53 He wrote that the plaintiff’s injuries result in her having difficulty in bending, lifting, twisting or stooping, and she is unable to kneel, squat or crouch. Her walking is restricted due to her knee pain, as well as hip, back, buttock and leg pain. Her ability to use stairs and steps is limited, and she has no capacity to perform work on ladders.
54 Dr du Toit said that his understanding of the plaintiff’s current social, domestic and recreational activities is that they are severely restricted due to her knee and hip pain, and she is unable to perform the usual domestic duties, and is not able to perform any recreational activities.
55 He wrote that, in his opinion, the plaintiff’s current incapacity and disability is mostly due to the knee and hip injury, and he considered her left hip pain was likely to continue for the foreseeable future. Although he had not treated her left leg pain, he was of the opinion, generally speaking, that it was a pain presentation secondary to neuropathic pain. He thought that further treatments may include knee replacement surgery. He thought her prognosis was guarded and that she would not have a capacity to return to duties that require pushing, pulling, lifting, bending, squatting or kneeling. Finally, he added that the plaintiff may have the capacity to return to sedentary duties, with the proviso that she has regular walking and standing intervals to break prolonged sitting postures. But she would not have a capacity to return to preinjury duties.
Dr Michael Baynes
56 Dr Baynes is an occupational physician who provided three reports, dated 5 September 2017, 18 April 2018 and 16 May 2019, at the request of the defendant’s solicitors. By contrast to Dr Yong, on his examination of the plaintiff and after his consideration of roles identified by the defendant as amounting to suitable employment, he considered the plaintiff had a full-time light work capacity, and this was despite the fact that the plaintiff had not, since the date of her injury, returned to full-time work.
57 As part of his consideration of the plaintiff, he had available to him, her affidavit dated 12 April 2017, together with the x-ray of the pelvis and the left hip, an x-ray of the lumbar spine and ultrasound of the left leg veins, dated 18 September 2014, and an x-ray of the plaintiff’s left knee, dated 7 December 2016. He also had been provided with the medical reports of Mr Khan dated 18 September 2013, Mr Joseph Robin, dated 10 September 2014, Mr Sam Patten, dated 24 November 2015 and Dr Soares, dated 1 April 2016.
58 In his first report, Dr Baynes recounted the circumstances of the plaintiff’s injury. He reported that the MRI scan revealed a medial meniscal tear and following the referral to Mr Robin, an arthroscopy of the knee was performed in July 2014. He noted the plaintiff had been worse following surgery and that she had undertaken physiotherapy as well as hydrotherapy, however her pain radiated up to her left leg and into her left hip and, as well, she reported lower back pain, for which she was referred for x-ray. In May 2015, she had a cortisone injection into the left hip, but this only helped marginally and she continued with physiotherapy, and after it ceased, she maintained hydrotherapy and attending a gym once or twice a week. He noted she had returned to work on a day shift approximately three months after surgery on limited hours, and gradually increased her hours, but was unable to cope, and stopped work for a while. She returned in mid-2015, gradually increasing her hours to 15 hours a week, before she was terminated in December 2016. She told Dr Baynes that she had undertaken some office work shortly before the consultation and that she had begun a Diploma in Community Services to become a case manager, that course being due to finish in April 2018. She told him that she had only the previous week, undergone a management placement as part of her course, working some five hours.
59 The plaintiff reported a continuation of pain over the anterior medial aspect of her knee, together with restricted movement. She reported pain radiating up into the left hip and of experiencing difficulty bending over. She said that standing was limited to around half an hour, and she could sit for 30 minutes, but needs to have her leg extended. She can walk for 20 minutes. She said that she comes down the stairs leading with her right leg, one at a time. She advised that she does not drive and does not have a licence.[27] She reported disturbed sleep due to the pain in her knee. She noted she can cope with personal grooming, but is somewhat restricted with house work, and obtains some assistance from friends.
[27]At T 15 the plaintiff was asked in cross-examination if she had a driver’s licence and she said that she did. The matter was not further explored.
60 Dr Bayne’s assessment of the plaintiff’s condition is that she is suffering from chronic knee pain as a result of a traumatic injury by way of a severe kick to the knee in which she sustained a medial meniscal tear, causing chondral injuries to the left knee. The arthroscopy reported little benefit, and she has continued to complain of knee pain with referred pain up into the left hip, as well as some low-grade back pain in association with the degenerative change in the lower lumbar spine. He found no objective evidence of radiculopathy on examination.
61 Dr Baynes wrote that the plaintiff is not fit for her preinjury duties, but he regarded her as fit for sedentary-type work, with no heavy lifting of more than 5 kilograms. She would not be fit to work where there is a requirement to repetitively squat, use stairs or climb ladders. She should be able to frequently change postures. She should not work where there is restricted extensional flexion of the knee. He said that she would be fit to undertake full-time hours and fit to undertake office-type, or receptionist-type, work. She would be fit to undertake light processing work and packing work, where she can sit, stand and walk. He thought she was ideally suited to undertake case-management work after completion of her course.
62 In a report dated 18 April 2018, Dr Baynes answered a request by the defendant’s solicitors to consider the suitability of roles identified in the Recovre Suitable Employment Report, dated 11 April 2018, and that identified:
·call centre operator
·receptionist
·community support worker
·justice officer
·admissions clerk.
63 Dr Baynes observed that the customer service role entailed office work with other members of an office team, and taking inbound phone calls, and receiving orders, enquiries and complaints, as well as computer-based tasks, including sending emails. He noted access to a sit/stand desk, with the use of a computer, and taking telephone calls using a hands-free system. Other tasks involved filing, printing and occasionally replacing paper and ink cartridges in a printer. He thought the role would fit within restrictions of not lifting more than 5 kilograms, there being no requirement to repetitively squat, use stairs or climb ladders, and with the ability to frequently change postures. The plaintiff would be able to extend her legs. He said she would be able to undertake full-time hours in such a job. Based on his previous examination, Dr Baynes said she could perform all tasks other than squatting to access low shelves, and that she would need to bend. He did not think she would need special flexibility apart from the ability to use the sit/stand desk. He thought she would need to learn the business work practices and computer software programs, but she was capable of learning them.
64 In the position of a receptionist in a neighbourhood community centre, he found the role would fit within the plaintiff’s restrictions. Dr Baynes noted the ability to rotate posture between sitting, standing and walking, was important. He considered she was capable of learning the work practices and computer software programs, and she would not need to gradually increase her hours because he thought she could return to full-time hours.
65 Dr Baynes reported that the community support worker position involves education, employment and settlement assistance to migrant populations. He noted half the role is working in an office at a standard or sit/stand workstation, and attending meetings and having discussions with case managers, along with telephone calls. The other significant work component is outreach work to people’s homes or meeting points, using public transport or driving with distances of around 20 kilometres. He noted stair climbing and the carrying of documents and laptops would be required. He thought the office component of the role would fit her restrictions, however the outreach component was uncontrolled and may require extensive use of stairs, which would not be appropriate, and in that respect, the job would not be suitable.
66 Dr Baynes observed that the justice officer role involves administration duties with face-to-face contact with clients, telephone tasks, all data entry and payment processing, together with meeting and greeting visitors to the centre. He noted workers rotate between front-desk duties and back-office administrative tasks, and that sit/stand desks are supplied on a hot-desk arrangement. All banking runs occurred twice a day, involving about 500 metres worth of walking or driving, but that weights, in terms of handling, were below the plaintiff’s maximum limitation. He thought the role would fit within her restrictions, although the bank run may be difficult, given her limitation to walking 20 minutes and the necessity, to be able to rotate postures between sitting, standing and walking.
67 Dr Baynes commented that the admissions administration support role with an aged care provider was one involving ensuring patient finances, records, contracts and other information is up-to-date. The worker meets with residents and families to provide information and undertake administration tasks including filing, archiving, data entry and computer tasks. Computer tasks take around four to five hours a day, and face-to-face meetings occur in offices, with tours of the facility taking in the order of 10 minutes. There is no occasion to access low shelving. He thought the role would meet the plaintiff’s restrictions, including the ability to change postures and extend her leg at a desk as needed.
68 In a report dated 16 May 2019, Dr Baynes said that the plaintiff told him she had experienced some improvement since she last saw him. By the date of this report, the plaintiff had seen Dr du Toit, the pain specialist, and she had been referred to pain management, undertaking that program in November 2018. She told Dr Baynes there had been progressive improvement, particularly with the exercise component of the pain management program, and she had learned how to deal better with her pain. She told Dr Baynes that she completed the main part of her advanced pain management program and was being reviewed monthly, and she was attending a gym seven days a week. She advised she has greater mobility, and is able to squat and lift 4-kilogram weights. As to her left knee, she told him that she suffers continuous pain over the knee, which tends to be worse with activity. She advised that she has an altered gait, with pain into the left hip and back. She said she has pain over the medial aspect of the knee, but there has been decreased tenderness over the past year. She said, occasionally the knee will lock, but will not give way. As to the left hip, she said she has pain around the hip region into the left buttock. When she sits, she tends to take weight off her left buttock. She advised she has lower back pain on and off, which has not been too bad, but tends to increase after exercise, only to settle thereafter, some half an hour later. In terms of postural tolerances, she said she is able to go to community meetings and stand and talk during the period of their duration, and that she can sit for 25 to 30 minutes, but does need to straighten out her leg on occasions. She can walk for 15 minutes before she will sit and rest. She can drive for 20 minutes. She said that her sleep has improved, but she still gets up twice a night.
69 The plaintiff told Dr Baynes that although she has not returned to work, she is looking for work, and had completed a Diploma in Community Services and completed her placements, undertaking five hours twice a week, which included computer work, interviewing clients and counselling. She told him she was currently undertaking a certificate course in mental health studies.
70 Dr Baynes assessed the plaintiff as suffering from a chronic pain syndrome, associated with chronic left knee pain after suffering a traumatic injury causing a medial meniscal tear and chondral injuries to the knee. He remained of the opinion she was fit for work as a community social worker and work in administration, as well as reception. She was also fit for work undertaking light processing duties, and packing work where she could sit, stand and walk, and that she would be fit to counsel clients and provide support to them. He noted the suitable employment report from Recovre, dated 11 April 2018, identified several job options, including call centre operator, receptionist, community support worker, justice officer and admissions clerk. He adopted his earlier expressed opinion that she has a capacity, from a physical point of view, to undertake such roles.
Associate Professor Max Esser
71 Associate Professor Esser is an orthopaedic surgeon, who in a report dated 24 June 2019, following examination of the plaintiff, noted that, she had a great deal of difficulty getting on and off the examining couch. He said she wore a glove and stocking for loss of sensation to the entire left leg and that she moved excessively slowly, particularly walking into the examination room and walking out. He thought there was some evidence of illness behaviour.
72 He reported on the indications of the medial meniscal tear and that she presented with lower back pain.
73 He thought that the plaintiff could do most tasks but that there may be difficulty doing so for protracted periods of time and he thought she could almost certainly work on a part time or half time basis, i.e. four to six hours per day. He referred to the Recovre Suitable Employment Report, dated 11 April 2018. He said his impression of the plaintiff was that her education was basic and her English expression adequate, but that she was somewhat difficult to understand at times. That assessment accords broadly with my own after having carefully listened to the plaintiff testify. He thought a customer service officer role may be possible but “I wonder whether she has the education or comprehension to actually be able to [fulfil] this with a confident and competent manner”.[28] He said he was unsure whether she has typing skills to perform these tasks, but as it was mostly a sedentary task, he thought should she should be able to do it from a physical point of view. He said it would be difficult for her to squat or stand for protracted periods of time. He said “[i]t is possible she would be able to cope with this position”.[29]
[28]Defendant’s Court Book (“DCB”) 32
[29]DCB 32
74 The job of a receptionist in a neighbourhood community centre was described as including customer service duties and manning of telephones, as well as computer operation functions. He said he was unsure whether the plaintiff would be adequately educated to be able to fulfil this job requirement and he noted the community guide support worker described in the report requires communication and computer skills, which he was not sure she possessed. He thought the physical demands appropriate, but his concern was whether her education and training was sufficient for the position. He said she “does not have good English language skills”.[30] He thought that, similarly, front desk positions, as well as the administrative support positions, would be difficult for her to manage. He thought the job “probably requires educational skills which I doubt this lady has”.[31] He concluded that the plaintiff has had “a significant articular cartilage, and meniscal injury to her left knee, which has been caused by an injury consistent with the history she has given me”.[32] He thought she has very basic education and probably would not be able to fulfil the work requirements as documented in the report. He thought any job should not require a significant amount of physical activity.
[30]DCB 32
[31]DCB 33
[32]DCB 33
75 In a subsequent report, dated 1 July 2019, and following the provision to him of the three reports from Dr Baynes, who had documented the plaintiff’s retraining by way of a Diploma of Community Services, “with adequate English language capacity and computer skills”,[33] he noted Dr Baynes’ opinion that the plaintiff would be able to perform the job of justice officer and the admissions and administrative support role in an aged care facility, and be fit to work as a community social worker, working in administration as well as reception. He said that as a result of the reports from Dr Baynes he understood the plaintiff was undertaking studies in mental health. Therefore, because it had been reported to him by Dr Baynes that her English language capacity and computer skills were adequate for study, he altered his opinion and agreed with the assessment from Dr Baynes concerning the suitable employment.
[33]PCB 35
76 In my judgment, I am not satisfied that the there is an evident and sufficient disclosed path of reasoning for Dr Baynes’ ultimate opinion regarding the plaintiff’s work capacity. Dr Baynes considered the various jobs that had been posited as suitable and thought that while some of them were suitable, others were not and, in particular, he failed to explain the reasoning why he regarded the plaintiff as fit to undertake full time hours on consecutive days.
The Plaintiff’s cross-examination
77 The plaintiff was cross-examined by Mr Clarke. Predominantly, the cross-examination focused on the plaintiff’s tolerances to undertake ongoing employment, and with specific attention directed to the identified positions relied upon by the defendant as constituting suitable employment.
78 The plaintiff was questioned about the extent of the suite of duties she performed during her return to work on light duties with her employer following her injury. She agreed that during this time she continued to undertake some of the duties associated with the position of a personal care attendant.
79 It would appear from the plaintiff’s evidence,that I accept, that a list of modified duties was prepared by her manager. The plaintiff described the duties, in cross-examination, as including pushing a wheelchair, helping “the lifting machine, helping the standing machine, and showering the easier one”,[34] and that she said her doctor refused to approve these duties on the basis that he did not regard them as modified jobs. The plaintiff, in cross-examination, described the light or modified duties she was doing before she was terminated as:
“… activities on the table with them. I was cutting their fingernails and polish their nails, and I was massaging their hands on the table and doing the easy activities on the table with them, and I also walked-short walk in the facility area when they perhaps want to walk around, just a short distance, I follow them a little bit then we come back”.[35]
[34]T17
[35]T16
80 The evidence I have already mentioned discloses that the plaintiff has undertaken additional study since her employment was terminated in December 2016. She said that in April 2017 she commenced a Diploma of Community Services at a job training institute located in Dandenong. She completed the course. She said the classes were undertaken on a Friday.
81 The plaintiff also undertook a voluntary placement with “Carers of Africa,” a facility that supports African refugees in living in communities. She said the work was office based and included helping clients perform research on the internet,[36] as well as helping them with issues they might encounter in rental properties. She agreed that her role had been that of essentially a “problem solver for people who are facing difficulties in their community”.[37] She said, however, she did not believe she was capable of presently performing that type of work.[38] She said that, in the course of performing that work, she encountered difficulties with Information Technology (“IT”) and that she had been told that unless she could undertake an IT course, she would not be suitable to continue in the position. She said, despite undertaking the course, she had not improved her computer skills.[39] She denied that she had told doctors, to whom she had been sent, that she had “good computer skills”. She said that she does not own a computer, but she does own an iPad. She agreed that she can search the internet, send emails and type a written document if required,[40] something self-evident, I would have thought, given her description of the duties she undertook at “Carers of Africa”. However, the reports from Dr Baynes identify a requirement for the plaintiff to learn various computer programs and although he contended that the plaintiff is capable of learning them, the relevant question is whether the extent of the imposition of her pain would amount to an impediment to the same. I am satisfied by the plaintiff’s evidence that it would.
[36]T17
[37]T18
[38]T18
[39]T18
[40]T18
82 When asked by Mr Clarke why she had ceased to apply for jobs, she said:
“I have difficulties at the moment … My sitting down - I’ve had a procedure, I’m in trouble. I can’t sit down for long, and also my knee pain and the hip pain was disturbing me. So Centrelink give me some break to stop looking for work for about nine months, to take care of myself. So it’s just resume on the July”.[41]
[41]T20
83 The plaintiff explained that the difficulty she has with sitting down is that she encounters pain that extends from her hip and the knee. She agreed having told doctors that she could sit for 20 to 30 minutes before feeling the need to stretch her knee or change position.[42] She agreed, once able to change positions, she can return to a seated position.[43] She said, referencing classes she has attended, that on some occasions she needs to stand “at the back of the class”.[44]
[42]T20
[43]T20
[44]T20
84 When asked if a job that involved her sitting at a desk was something which she could physically manage, she said “no”.[45]
[45]T20
85 The plaintiff was asked questions concerning the job at a community neighbourhood centre identified by the defendant in the Recovre report. The job is described as a sedentary role, with the primary duties being carried out while seated at a desk. The plaintiff said she has the capacity to sit at a desk during the course of a working day if she is able to change position approximately every half hour.[46]
[46]T21
86 The plaintiff was questioned about the 12-week pain management program she undertook in November 2018. She said it had not improved her ability to manage her pain, despite Dr Baynes reporting the opposite. The plaintiff said she told Dr Baynes that it had helped her “move with the pain” and to deal with the “aggression” she suffers as a result of pain. When pressed by Mr Clarke that it has improved her ability to manage her pain she said, “[j]ust a little bit. Not much”.[47]
[47]T22
87 The plaintiff was questioned by Mr Clarke concerning the frequency of her gym attendances. She said that initially she had attended every day for a period of one week, but she now is restricted by pain to attending twice a week, and walks on a treadmill and rides a bike.[48] As to Dr Baynes’ report that she told him she was not restricted in being able to stand, she said she does indeed “have a problem”. She said, “[w] hen I stand I feel pain. I feel pain from maybe - from maybe 20 minutes. I need to sit down for a while”.[49]
[48]T23
[49]T23
88 She agreed she told Dr Baynes that she can sit for 25 to 30 minutes, but would need to straighten out her leg on occasions.[50]
[50]T24
The capacity to undertake hours of work
89 The plaintiff said that when she was terminated she had managed to work 15 hours as a personal care attendant on restricted duties,[51] but when it was suggested to her that if she was performing sedentary work, in office-based duties, she could work full time, she denied she could.[52]
[51]T24
[52]T24
90 The work the plaintiff performed over the 15 hours as a personal care attendant on restricted duties was not undertaken on consecutive days. The 15 hours were spread over three days.[53]
[53]T25
91 The plaintiff said that by undertaking a Diploma in Mental Health she hoped to obtain employment as a caseworker.[54]
[54]T25
92 The plaintiff was examined about the job of a customer service officer.[55] She was told that the job was largely sedentary and involved receiving orders over the telephone. She said:
“I’m not good of the communication on the phone, because I speak - I speak English okay, but sometimes when I’m on the phone, people repeat that – ‘Could you please repeat yourself, could you slow’ - I’m not really good for doing that, such a job.”[56]
[55]T28
[56]T28
93 The plaintiff said she was unable to receive orders via email and that she is “not good to do the commercial job either”.[57] She agreed she could read an email and send an email.
[57]T28
94 Another role that was identified by the defendant as suitable employment was a receptionist with a neighbourhood community centre, and in such a role, acting as the first point of contact in assisting members of the public with events and programs conducted at a centre, and managing bookings. The plaintiff said this was not something she believed she could do because of the difficulty she has with IT.[58] She said it would also depend upon the hours associated with the work and the ability to be able to sit and stand.[59]
[58]T29
[59]T29
95 The plaintiff denied the proposition put to her by Mr Clarke that she had closed her mind to working again, and said that the reason she was unable to look for work was because she was “in pain”.[60]
[60]T30
96 The plaintiff denied that because she was undertaking a Diploma in Mental Health, she could also undertake an IT course, and said that as matters presently stood, she was not attending her Diploma course because of her experience of pain.
97 The plaintiff was re-examined by Mr McGarvie. He directed her to the type of work she had been doing with “Carers of Africa”, which was described as light work performed two days a week, but not on consecutive days, and undertaking five hours on each day.[61]
[61]T33
98 The plaintiff said that since she ceased work she had not undertaken anything greater than five hours. The mental health worker course entailed four-and-a-half hours, one day a week.
99 She was directed to the position of customer service officer and to a photograph of a worker squatting to access a filing system at floor level, which she said she would be unable to undertake.[62] Another aspect of the position involved the use of Microsoft Outlook, which required reading skills and Word-based keyboard activity, which she said she was unable to do.[63]
[62]T33
[63]T33
100 The plaintiff said she was unfamiliar with Excel and the spreadsheet functions required as part of a skill set so as to record complaints.[64] She said that she would not be able to navigate stairs,[65] and neither would she be able to perform the full-time hours the position carried with it, namely 9.00am to 5.00pm Monday to Friday, with a 30-minute lunch break.[66]
[64]T34
[65]T34
[66]T34
101 In regard to the position of a receptionist in a neighbourhood community centre, the hours offered were either full-time or part-time hours, three or four days a week. The plaintiff said she could not work part-time three or four hours, three or four days a week.[67] The plaintiff said that she had no knowledge of the workings of a cash register or EFTPOS machines. Insofar as the customer service duties would require her to speak on the telephone, and use a computer keyboard and mouse, she said that required a level of dexterity she could not manage.[68]
[67]T34
[68]T34
102 The requirements of retrieving paperwork, by squatting or kneeling at a low-level, was not something she believed she could perform, nor could she bend, another requirement identified for the position.[69]
[69]T35
103 I accept the plaintiff’s evidence on all of these matters. I was not satisfied there existed any issue on which her credibility was undermined. I regarded her as a genuine historian.
The Defendant’s submissions
104 The defendant submitted that I should be satisfied that the plaintiff presents with a capacity to undertake sedentary employment. The defendant referred to the plaintiff’s acknowledgement, in cross-examination, that her left knee injury does not prevent her from sitting so long as, from time to time, she is able to change her posture, or to stretch her leg. Therefore, it was argued by the defendant that such a limitation, when coupled with the plaintiff’s proved ability to undertake further education, should lead me to be comfortably satisfied that she has a work capacity for suitable employment.
105 Mr Clarke referred to the opinion of Dr Soares in April 2016,[70] who reported that the plaintiff may need to look for sedentary employment with no prolonged standing, no repetitive kneeling, and no repetitive climbing of stairs or carrying heavy weights, as appropriate limitations. Mr Clarke submitted that such restrictions, as identified by Dr Soares, were consistent with the jobs that the defendant identified in the Recovre report, and with the opinion of Dr Baynes.
[70]PCB 54
106 Mr Clarke also referred to the report of the plaintiff’s treating physiotherapist, Mr Kunashe Parwada, dated 22 March 2018,[71] and his observation that the plaintiff was fit to undertake sedentary work. He listed restrictions and reported that the plaintiff could perform full-time hours within the restrictions he had outlined.
[71]PCB 76-80
107 Dr du Toit’s opinion was that the plaintiff has the capacity to return to sedentary duties, but with restrictions.
108 Mr Clarke submitted that Dr Yong’s report that the plaintiff has no capacity for alternative suitable employment in the jobs identified by the defendant should be rejected because his opinion flies in the face of the body of medical evidence that supports the proposition that these job options identified are suitable. Furthermore, Mr Clarke submitted that the opinions of Dr Yong were unhelpful in the sense that, having rejected the plaintiff’s capacity to undertake the identified positions in the Recovre report, he went no further, and did not identify restrictions and tolerances that might be accommodated in the guise of suitable employment. Mr Clarke submitted that Dr Baynes, however, in contrast to Dr Yong, expressed the view that the plaintiff is fit for full-time alternative duties,[72] and he endorsed a number of the specific roles identified by the defendant.
[72]DCB 21
109 Mr Clarke submitted that the limitation of 15 hours a week as the outside maximum in terms of sedentary work is an artificial figure, and is a figure derived absent any evidence that the plaintiff would be unable to exceed 15 hours in sedentary employment.
110 Mr Clarke referred to the opinion of Mr Patten, that the plaintiff is “fit for alternative duties … desk-based work only”.[73]
[73]PCB 106
111 Mr Michael Troy, orthopaedic surgeon, examined the plaintiff in April 2016.[74] He reported that the plaintiff was fit for normal working hours and modified duties. The duties Mr Troy was referring to, at that stage, related to the personal care attendant restricted duties and Mr Clarke submitted, that being so, there was no good reason his opinion would not be equally applicable to sedentary employment.
[74]PCB 183.1-183.6
The Plaintiff’s submissions
112 Mr McGarvie submitted that it was not an accurate state of affairs to contend the plaintiff had an unproved capacity to not exceed 15 hours performing sedentary work. He made two submissions addressing this point. First, he argued that through no fault of her own, the plaintiff was not provided the opportunity to perform sedentary work with her employer prior to being dismissed, but her ability to undertake the work of a personal care attendant had established her inability to work greater than 15 hours (although there was a momentary period in which she worked for 21 hours) because of pain. Second, since then, the plaintiff had occasion to perform office-based tasks, although not involving any significant use of computers, when she was working for “Carers of Africa”, but described not being able to do that on any two consecutive days, and not being able to do it for more than two five-hour shifts per week.
113 Mr McGarvie submitted that the reality of employment is a critically important consideration. I agree.
114 Mr Chandrasekaran, in 2018, when asked about the plaintiff’s work capacity said, it would be best approached in an incremental fashion and by way of a gradual return to duties. He said she may be able to perform duties three hours a day, three times a week, and increase them based on her pain threshold. Thus, the plaintiff, when she last worked, was at a maximum capacity of 15 hours when working as personal care attendant and has not worked since, and she should not be treated as able to launch herself into full-time employment without a graduated return to work. The plaintiff is in the position in which she needs to find suitable employment where she can commence working three hours day, three times a week, or at least on some form of limited hours, and then build up by a return-to-work plan. No such job has been identified by the defendant.
115 Mr McGarvie submitted that no consideration should be given to the position of admissions or administration support, as it was not a position put to the plaintiff and, in fact, she was cross-examined about only two jobs, and in the plaintiff’s submission, only the receptionist position could have any possibility of being suitable employment, given that it is available three days a week on five to seven hours a day but that this would, nonetheless, be in excess of what the plaintiff has demonstrated a capacity to do by reference to her volunteer work with “Carers for Africa”, and by way of her coursework in further education.
116 Therefore, the plaintiff submitted that the defendant had not discharged its onus of demonstrating a role which the plaintiff could properly perform as suitable employment.
Analysing suitable employment
117 In Weldemichael v ID Sales and Repairs Pty Ltd,[75] the Court of Appeal said that:
“… The proper consideration of the applicant’s capacity to perform light assembly work did not require some minute consideration of every aspect of a particular position that might or might not have been suitable for the applicant”.
[75] [2019] VSCA 68 at paragraphs [93]-[94]
118 Moreover, the Court added that the “proper analysis, and one which was carried out by the judge, involved a broader consideration of all of the evidence”. I have endeavoured to adopt this approach to the question.
119 Consistent with the dicta in Weldemichael, I must have regard to “suitable employment”, which is defined to mean:
“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 re-education.”
120 The plaintiff must also show, and it is she who bears the onus in this regard, that she has suffered a permanent loss of earning capacity of at least 40 per cent after any reasonable rehabilitation and retraining.
Analysis of suitable employment
121 I have already expressed my lack of persuasion as to the findings by Dr Baynes of the plaintiff’s capacity to undertake full time employment in the identified suitable employment. I am not satisfied that Dr Baynes has identified a basis of reasoning why the plaintiff has a capacity for full-time hours. Indeed, in my judgment, it is contradicted by the empirical evidence.
122 As well, I have some difficulties accepting the ultimate analysis conducted by Associate Professor Esser in his second report. Certainly the opinions he expressed in his first report were very cautious of a realistic ability by the plaintiff to be able to undertake the identified suitable employment. In his second report he adopted the opinion of Dr Baynes that the plaintiff was suited to the identified jobs because Dr Baynes had mentioned that the plaintiff had been able to undertake some studies and volunteer work. I am not satisfied that amounts to a sufficiently reasoned explanation why Associate Professor Esser altered his view expressed in his first report of the disadvantage of plaintiff’s facility with language or, moreover, how her studies and limited volunteer placement caused him to alter his previously expressed opinion that the identified positions did not amount to realistic employment options for the plaintiff in the real world.
123 The requirements that call for a capacity for suitable employment are not on all fours with a period of study or a limited volunteer placement. I do not accept the validity of the defendant’s criticisms of Dr Yong that his opinions concerning the plaintiff’s capacity for suitable employment are undermined due to a failure by him to address any residual capacity the plaintiff might possess to perform the proposed suitable employment in something less than full time hours. Dr Yong specifically addressed the question of something less than full time hours in the event he assessed her as possessing a work capacity but he reported that because he determined she did not, the question did not arise. I am inclined to the view that the defendant’s criticisms of Dr Yong are predicated on a false premise.
124 I have had regard to the meaning of “suitable employment.” I have considered the nature of the plaintiff’s incapacity as well as the empirical evidence of her past maximum hours of light duties that she was able to perform, although not undertaken on consecutive days. I have had regard to the additional activities the plaintiff has since undertaken to determine if they provide a sound and reliable inference to establish a capacity for hours that would need to be at least 22 hours a week (the receptionist position) to thereby defeat the claim for a loss of earnings. The additional application of the plaintiff to studies and volunteer work is not sufficient evidence to satisfy me of that result sought by the defendant. Indeed the plaintiff said she has encountered an unreliability in her consistency of study obligations due to absenteeism caused by her experience of pain. I have also taken into account the prognosis for the plaintiff which is less than favourable on the preponderance of medical evidence. The fact that the plaintiff has endeavoured to improve herself educationally and undertaken volunteer placement, is not evidence to establish a capacity for suitable employment in the positions identified by the defendant on hours that would eliminate her claim under the Act for loss of earnings of more than 40 per cent.
125 On balance, I am satisfied that the best evidence is that the plaintiff has a maximum capacity to work no more than 15 hours per week on non-consecutive days. That capacity has, contrary to the submission of the defendant, been to some extent, tested in the real world more recently, by her work placement and study. But I am not satisfied it is evidence that the plaintiff can exceed 15 hours of work per week.
126 I have taken into account the nature of the plaintiff’s pre injury employment and whilst none of the positions identified by the defendant are comparable to the work the plaintiff has performed since arriving in Australia, her application and proved capacity to study in order to improve herself with the hope of future employment, is indicative that it is her physical limitations and experience of pain that is the significant inhibiting factor to the hours she can work on a reliable and consistent basis in suitable employment for the foreseeable future. Whereas her age, and educational advancement are positives, her lack of skills and experience in IT and her lack of a team based office work experience and, to a lesser extent, my assessment of her possessing a functional but not fluent command of English, would be disadvantageous to her. Her domicile is not a disadvantage to her ability to otherwise undertake suitable employment.
127 I am also satisfied the plaintiff has proved, on the balance of probabilities, that the loss of 40 per cent or more is permanent, and is not remediated by, or in consequence of, any reasonable retraining, as I am satisfied, by the evidence, that the limitations applicable to her capacity to earn a sum sufficient to eliminate the loss of earning capacity is due to the functional and organic consequences of her compensable injury which is permanent.
128 I am satisfied that the plaintiff having established a loss of earning capacity that the same, itself, is a serious consequence.
129 Mr McGarvie submitted that I should be satisfied by the plaintiff’s claim to an entitlement to a serious injury certificate for both loss of earnings and for pain and suffering. That submission is supported, of course, by the decision of the Court of appeal in Advanced Wire & Cable Pty Ltd v Abdulle.[76]
[76][2009] VSCA 170
130 I will grant the plaintiff the relief sought in her Originating Motion and grant leave to the plaintiff for a serious injury certificate.
131 I will hear the parties on the matter of costs.
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