Wilson v Tabro Meats
[2017] VMC 23
•4 DECEMBER 2017
| IN THE MAGISTRATES COURT OF VICTORIA |
AT LATROBE VALLEY
WORKCOVER DIVISION
Case No. H10348328
| CRAIG WILSON | Plaintiff |
| v | |
| TABRO MEATS PTY LTD | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 9 NOVEMBER 2017 |
DATE OF DECISION: | 4 DECEMBER 2017 |
CASE MAY BE CITED AS: | WILSON V TABRO MEATS |
MEDIUM NEUTRAL CITATION: | [2017] VMC023 |
REASONS FOR DECISION
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Catchwords: 49 year old Knocker/Slaughterman – Back injury - Termination of weekly payments at the expiration of 130 weeks on grounds he has the capacity for suitable employment as a Factory Hand, Delivery Driver or Spare Parts Interpreter.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Horner | John McCristal Injury Lawyers |
| For the Defendant | Mr Middleton | Minter Ellison |
HIS HONOUR:
1 Mr Wilson is aged 49 years, resides in Korumburra and was employed as a knocker/slaughterman with the defendant from 12 March 2013. He sustained injuries to his back in the form of a L4/5 disc prolapse with L5 nerve root radiculopathy as a result of an incident on 10 June 2014.
2 Mr Wilson lodged a WorkCover claim for which liability was accepted and he received weekly payments of compensation until 10 December 2016 when they were terminated on the grounds that he had a current work capacity or that if he had no current work capacity it was not likely to continue indefinitely.
3 In particular, Allianz Australia alleged that Mr Wilson had the capacity to perform the following suitable employments; Warehouse Assistant/Supervisor, Production Supervisor, Factory Hand, Delivery Driver, Sales Representative, Forklift Operator, Machine Operator, Tanker Driver or Spare Parts Interpreter.
4 Mr Wilson gave evidence and the parties tendered numerous medical and vocational reports.
5 Mr Wilson told the court that he completed year 11 at school and has performed various types of work over the years which has included; labouring in a chocolate factory, completing 2 years of a four-year electrical apprenticeship, establishing and working in a fishing lure business, working at a crocodile farm, working at an abattoir, packing cheese, a yard man at a car yard, a garage and workshop attendant, carpet laying, car detailing, a machine operator and a supervisor at a milk factory.
6 Mr Wilson said that when working with the defendant he was required to use a pneumatic gun or sledgehammer to stun or kill cattle. He told the court that on 10 June 2014 he was leaning over when using a pneumatic gun to stun an animal when he twisted and felt low back pain. He told the court that he sought medical treatment and was incapacitated for work for approximately 2 to 3 months and then unsuccessfully attempted to return to work 3 to 4 hours per day, with restrictions over a period of 6 months. Mr Wilson gave evidence that he has been treated by Dr Toohill at Leongatha Healthcare who referred him to Mr Goldschlager, Neurosurgeon who did not recommend surgery. He told the court that he had previously received psychological treatment.
7 Mr Wilson gave evidence that he continues to experience low back pain and left leg pain which varies in intensity. He told the court that he is prescribed the following medications; Lyrica, Tramadol, Panadeine Forte, Avanza (an anti-depressant) and he occasionally uses Panadol and other medications to help him sleep. Mr Wilson said he experiences increased pain when bending or sitting for long periods and has difficulty when required to ascend or descend stairs. He said that he currently provides certificates which indicate that he is fit for suitable employment with no lifting more than 5 kg, modifications for sitting, standing, kneeling and bending. He said that he would like to find suitable employment as he has a young family to provide for but has not really looked for light work or sought re-training as he does not consider that he would be a good employee. He told the court that he is considering moving back to Darwin.
8 In cross examination, he conceded that he may be able to perform light process work, fishing lure work or manage an auto service outlet and has inquired about undertaking training in the Human Resources and OHS fields but would need to enrol at Tafe or complete the courses online which would cause difficulty as he does not own a computer and has never received computer training.
9 The defendant tendered a number of reports authored by Ms Carlos, Senior Vocational Consultant from Counselling Appraisal Consultants. In a Transferable Skills Analysis Report dated 10 February 2016, Ms Carlos noted that Mr Wilson has completed Year 12 at Darwin High School, that he had a working knowledge of MS Word, Excel and the Internet and had considered returning to work in self-employment once his claim is settled. Whilst identifying suitable employments as being; Warehouse Assistant/Supervisor, Production Supervisor, Factory Hand, Delivery Driver, Sales Representative, Forklift Operator, Machine Operator, Tanker Driver and Spare Parts Interpreter, she noted that he only had some of the transferable skills necessary to perform the roles of Warehouse Assistant/Supervisor, Production Supervisor, Sales Representative, Forklift Operator and Tanker Driver. For those suggested suitable employments she noted that Mr Wilson would need to; obtain a forklift or truck licence or obtain on the job training.
10 Ms Carlos stated that Mr Wilson has all the necessary transferable skills and experience to work as a Factory Hand, Delivery Driver and Spare Parts Interpreter. She reported that Mr Wilson was unable to find suitable employment within the medical restrictions imposed on him and he indicated to her that he might re-locate to Darwin or Queensland and may wait for a settlement payout before considering undertaking a basic business management course to pursue self-employment. In December 2016, Ms Carlos recommended that no further vocational services should be provided.
11 Mr Wilson tendered a Vocational Assessment Report of Ms Schneider, Director of Australian Vocational Link, dated 3 October 2017. Ms Schneider noted that Mr Wilson is a single parent raising 2 children aged 7 and 5 who resides in the economically depressed dairy town of Korumburra, 120 km south-east of Melbourne and 70 minutes’ drive from the nearest metropolitan train station. Ms Schneider was specifically asked to provide comment on the suggested suitable employments as set out in the report of Ms Carlos dated 10 February 2016. She reported that Mr Wilson would benefit from participating in vocational retraining and noted that he is restricted to work of a sedentary nature for which he has no functional computer knowledge, skills or experience for office-based, telephone based, computer-based, customer service and people orientated occupations. She stated that he would not be a suitable candidate for vocational retraining because of his physical limitations and even if he could overcome the physical, psychological and cognitive barriers, his prospects in succeeding in retraining and returning to work are thwarted by his age, his residential location and his inability to drive beyond 30 minutes to access public transport or a workplace.
12 Ms Schneider noted that his current certificate indicates that he has a lifting limit of 5 kg and is to avoid bending, squatting, kneeling and lifting. Ms Schneider stated that Mr Wilson lacks usable transferable work skills and that his past work experience involved heavy work, predominantly outdoors, self-directed, autonomous and in male dominated industries. She noted that he has no experience in counter sales, wholesale and sales representation work or in office-based, telephone based, computer-based, customer service and people orientated occupations. She further noted that he is 49 years of age and has not engaged in any voluntary, casual, full-time, part-time or self-employment since ceasing work in March 2015.
13 In response to the suggested suitable employment identified by Ms Carlos, she made the following comments; Factory Hand: Mr Wilson has no forklift licence and has limited factory based work experience; Delivery Driver: Mr Wilson lacks functional computer skills and proficiency; Spare Parts Interpreter: Mr Wilson has not been trained in Spare parts interpreting (Certificate IV), he does not use computers and is functionally computer illiterate. Ms Schneider suggests that irrespective of medical improvement, he will require extensive vocational retraining.
14 Mr Wilson gave evidence that he does not believe he could do the suggested suitable employments as he has no past experience in the role of a Factory Hand, his difficulty in sitting for prolonged periods and his place of residence would make it difficult for him to work as a Delivery Driver and he has not had experience, any training, nor does he possess the necessary skills, to work as a Spare Parts Interpreter.
Medical Evidence
15 Dr Toohill reported on 20 October 2015 that Mr Wilson has disc degeneration and a prolapse at L4/5 and L5/S1. He considered that he would be fit for light duties with no lifting, bending and restricted to working no longer than a 4 hour shift. He noted that Mr Wilson was taking Voltaren, Lyrica, Avanza, intermittent Paracetamol and Panadeine Forte. In October 2016, he reported that Mr Wilson has chronic pain with intermittent sciatica which has improved following a lumbar nerve root injection and considered he would be fit for part-time work with restrictions including no lifting more than 5 kg, no bending and performing 6 hours work each day alternating with a day off for recovery time. He considered that Mr Wilson was fit for a desk job, an administrative job or a supervisory job in his area of expertise and would be fit for work as a spare parts interpreter or as a sales representative. Dr Toohill reported in September 2017, that Mr Wilson was ready for a retraining program.
16 Mr Goldschlager reported that he first saw Mr Wilson on 30 July 2015 and following an MRI scan and x-ray which demonstrated degenerative changes, particularly at L4/5 and L5/S1 and a protrusion at L4/5 compressing the left L5 nerve root that a nerve root injection should be performed which subsequently occurred on 19 October 2015. He reported that when reviewed on 14 January 2016, Mr Wilson indicated to him that he had benefited from the injection. Mr Goldschlager stated that if Mr Wilson experienced a further recurrence of pain, consideration should be given to further injections or surgery as a last resort.
17 Dr Slesenger, Occupational Physician assessed Mr Wilson on behalf of his lawyers on 29 September 2017. Mr Wilson told him that he experienced ongoing lower back pain which is constant, moderate to severe and aggravated by activity. Mr Wilson also complained of associated intermittent left leg pain and said that he had become depressed and anxious. Dr Slesenger suggested that Mr Wilson attend Mr Goldschlager for review or be referred to a Pain Clinic and that he should engage in a self-managed exercise program and receive psychological treatment. He did not consider that his condition had stabilised and opined that his residual restrictions included; avoiding pushing, pulling, carrying or lifting over 5 kg, avoid repetitive bending and twisting and avoiding sustained static postures including sitting or standing for longer than 20 to 30 minutes.
18 Dr Slesenger stated that Mr Wilson is unfit for pre-injury duties and after taking into consideration his current symptoms, functional limitations, past occupational experience, residential location, lack of qualifications and limited computer skills, did not anticipate that he would be able to return to work in a role for which he has suitable training and experience.
19 Associate Professor McInnes assessed Mr Wilson on behalf of the Agent on 24 August 2015 and 23 May 2016. He diagnosed that Mr Wilson had early degenerative disease of the lumbosacral spine, mainly involving intervertebral disc pathology at L4/5 and L5/S1 and he could not find any evidence of radiculopathy. He considered that Mr Wilson could do suitable modified pre-injury duties which would not involve any extensive bending, twisting or turning and pushing or pulling. In his report dated 23 May 2016, he noted that Mr Wilson had slightly improved since his previous examination and considered that he was fit to return to suitable modified duties and eventually would be fit to return to work full-time without any repeated heavy lifting, turning or twisting and pushing or pulling. He considered that the suggested suitable employment options as contained in the report of Ms Carlos would be suitable with the exception of work as a Factory Hand.
Conclusion
20 I accept the evidence of Mr Wilson and prefer the opinions of Dr Toohill and Dr Slesenger than that expressed by Associate Professor McInnes, who has not examined Mr Wilson for over 18 months, that Mr Wilson continues to experience low back pain and intermittent left leg pain as a consequence of the injury on 10 June 2014.
21 I find that Mr Wilson is restricted in the activities he can perform and that the suggested roles as a Factory Hand, Delivery Driver or Spare Parts Interpreter are not ‘suitable employment’. I make this finding for the following reasons;
a. He is 49 years of age;
b. His place of residence;
c. His physical restrictions as indicated by the certificates provided by his treating doctor and the opinion of Dr Slesenger who assessed him as recently as 29 September 2017;
d. His medication intake which would inhibit the safe operation of machinery and prolonged driving of a motor vehicle or forklift;
e. His lack of experience in performing the suggested roles;
f. His lack of office based skills and computer skills;
g. His lack of the necessary Forklift licence and qualifications;
h. The absence of re-training and rehabilitation necessary for him to acquire the appropriate qualifications and skills to perform the suggested ‘suitable employment’.
22 These factors result in a conclusion that Mr Wilson does not have a ‘realistic capacity’ for suitable employment.
23 Accordingly, I find that Mr Wilson has no current work capacity which is likely to last indefinitely. He is entitled to weekly payments from 10 December 2016 in accordance with the provisions of the Act.
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