Yirga-Denbu v VWA
[2018] VSCA 35
•23 February 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 103
| TILAHUN YIRGA-DENBU | Applicant |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Respondent |
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| JUDGES: | PRIEST, BEACH and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 February 2018 |
| DATE OF JUDGMENT: | 23 February 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 35 |
| JUDGMENT APPEALED FROM: | [2017] VCC 1171 (Judge Lauritsen) |
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ACCIDENT COMPENSATION – Appeal – Workplace injury – Serious injury – Serious injury application – Loss of earning capacity – Whether applicant would continue permanently to have loss of earning capacity of 40 per cent or more – Medical panels – Medical panel opinions – Relevance of medical panel reasons – Admissibility of medical panel reasons – Issue of permanence of particular incapacities falling to be dealt with upon whole of evidence – Evidence established that applicant would continue permanently to have loss of earning capacity of 40 per cent or more – Applicant granted leave to commence proceeding claiming pecuniary loss damages – Workplace Injury Rehabilitation and Compensation Act 2013, ss 272 and 313 – Accident Compensation Act 1985, ss 134AB(16)(b), (37) and (38)(e)-(f).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A D B Ingram with Ms C F Moore | Verduci Lawyers |
| For the Respondent | Mr M F Wheelahan QC with Ms B L Hutchins | Russell Kennedy |
PRIEST JA
BEACH JA
NIALL JA:
On 29 January 2011, in the course of his employment with Princes Laundry Services Pty Ltd, the applicant was lifting six blankets from one trolley to another when he suffered an injury to his lower back.
By an originating motion filed in the County Court on 18 September 2015, the applicant sought leave, pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the AC Act’) to commence a proceeding at common law claiming damages in respect of the injury he sustained on 29 January 2011. The applicant relied upon paragraphs (a) and (c) of the definition of ‘serious injury’ contained in s 134AB(37) of the AC Act.[1]
[1]The expression ‘serious injury’ is defined in paragraph (a) of its definition to mean ‘permanent serious impairment or loss of a body function’, and in paragraph (c) to mean ‘permanent severe mental or permanent severe behavioural disturbance or disorder’.
The physical injury relied upon by the applicant for the purpose of paragraph (a) of the definition was described in particulars provided by the applicant as:
(a) Injury to the lower back with radiation into the left leg;
(b) Impairment of the function of the lumbar spine.
The psychiatric injury relied upon for the purpose of paragraph (c) of the definition was described in the same particulars as ‘Psychiatric condition’.
The applicant’s application was heard in the County Court by Judge Lauritsen on 27 June 2017. In the course of the application, counsel for the applicant told the judge that, while the applicant sought leave to commence a proceeding claiming both ‘pain and suffering damages’ and ‘pecuniary loss damages’,[2] the claim in respect of pecuniary loss damages was only being pursued in respect of the applicant’s physical injury.
[2]As those expressions are defined in s 134AB(37) of the AC Act.
On 28 August 2017, the judge granted the applicant leave to commence a proceeding claiming pain and suffering damages. The judge, however, refused the applicant leave to claim pecuniary loss damages.[3] While the judge was satisfied that the consequences of the applicant’s low back injury were more than significant or marked and at least very considerable,[4] the judge concluded that he could not find that the applicant had suffered a permanent loss of earning capacity of more than 40 per cent as required by s 134AB(38)(e) in order for the applicant to be given leave to claim damages for loss of earnings and loss of earning capacity.[5]
[3]Yirga-Denbu v Victorian WorkCover Authority [2017] VCC 1171 (‘Reasons’).
[4]Ibid [56].
[5]Ibid [58].
The applicant seeks leave to appeal and (if leave is granted) to appeal the judge’s order refusing him leave to commence a proceeding claiming pecuniary loss damages. The applicant’s proposed grounds of appeal are as follows:
1.The learned trial Judge erred in admitting into evidence the Further Reasons for Opinion of the fourth Medical Panel dated 6 February 2017 where such reasons did not resolve, and did not purport to resolve, any ambiguity as to what number of hours exceeding 20 hours per week the Applicant could work as a process worker and/or hand packer or the time at which likely maximal hours of employment might be achieved.
2.The learned trial Judge erred, in circumstances where the fourth Medical Panel was not asked to determine what number of hours exceeding 20 hours per week the Applicant could work as a process worker and/or hand packer or the time at which likely maximal hours of employment might be achieved, at [57] in using the further reasons for opinion as a basis for finding that the Applicant failed to satisfy the statutory regime outlined in s 134AB(38)(b) and (e)–(g) of the Accident Compensation Act1985 for the grant of serious injury certification with respect to loss of earning capacity.
3.The learned trial Judge mis-stated at [57], and in consequence failed to properly assess in his reasons, the evidence tendered on behalf of the Applicant in the vocational assessment report of Paul Hartley dated 26 September 2016 in assessing the Applicant’s capacity to engage in ‘suitable employment’ as defined in s 5(1) of the Accident Compensation Act1985.
4.The learned trial Judge erred in failing to determine for himself upon the whole of the evidence, in particular a comparison of the terms ‘light’ and ‘medium’ employment referred to in the Recovre report dated 19 February 2016, the Applicant’s capacity to engage in ‘suitable employment’ as defined in s 5(1) of the Accident Compensation Act1985.
5.The learned trial Judge erred in failing to determine whether the Applicant in engaging in ‘suitable employment’ had sustained a financial loss in his earning capacity from personal exertion which, when compared with the Applicant’s gross income during that part of the period within 3 years before and 3 years after the injury as most fairly reflected his earning capacity had the injury not occurred, was 40 per centum or more.
6.The reason of the learned trial Judge are inadequate for the purposes of determining upon the whole of the evidence the basis upon which the Applicant’s claim for serious injury certification with respect to loss of earning capacity was dismissed, in particular:
(a)the extent to which the Applicant was capable of performing the work of a process worker and/or hand packer in particular having regard to the terms ‘light’ and ‘medium’ employment referred to in the Recovre report dated 19 February 2016;
(b)the Applicant’s capacity to engage in ‘suitable employment’ is defined in s 5(1) of the Accident Compensation Act1985;
(c)whether the Applicant in engaging in ‘suitable employment’ had sustained a financial loss in his earning capacity from personal exertion which, when compared with his gross income during that part of the period within 3 years before and 3 years after the injury as most fairly reflected his earning capacity had the injury not occurred, was 40 per centum or more.
The evidence generally
On the hearing of the application in the County Court, the applicant relied upon two affidavits that he swore on 2 February 2015 and 8 June 2017. The applicant was the only witness who gave evidence on the hearing of his application. In evidence, the applicant adopted his affidavits, was cross-examined and then re-examined. The cross-examination was relatively brief, occupying a little over 16 pages of transcript. At no stage was the applicant’s credit put in issue.
At the conclusion of the hearing, the parties tendered various documents from their respective court books. The documents tendered included:
·medical reports;
·vocational assessment reports;
·clinical records;
·certificates of the opinions of medical panels to whom medical questions had been referred under div 3 of pt 6 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the WIRC Act’);
·a written statement of reasons given by one of the medical panels to whom a medical question had been referred;[6]
·a one-page document headed ‘Summary of Gross Earnings’ setting out the applicant’s gross income and taxable income for the financial years ended 30 June 2008 to 30 June 2016;
·a 32-page computer printout of the applicant’s pay records covering his employment by Princes Laundry Services for the weeks ended 31 March 2009 to 22 March 2011; and
·a WorkCover claim form completed by the applicant, and a WorkCover employer’s report of injury completed by Princes Laundry.
[6]These were the reasons described in the applicant’s proposed ground 1 as ‘the Further Reasons for Opinion of the fourth Medical Panel dated 6 February 2017’.
Prior to trial, various medical questions relating to the applicant’s injury were referred, on different occasions, to a number of medical panels. Those medical panels provided certificates of their opinions as required by s 313 of the WIRC Act. Pursuant to s 313(4) of the WIRC Act, the opinions of the medical panels on medical questions referred to them were required to be ‘adopted and applied’ and ‘accepted as final and conclusive’ by ‘any court, body or person’.
While there was no dispute at trial about the admission of the opinions of the medical panels, on the application of the respondent to the primary judge, and over the objection of the applicant, the judge admitted the written statement of reasons of
the last of the medical panels to examine the applicant (‘the Panel Reasons’).[7] We will come back to this matter because, as we have said, the admission of this document is the subject of the applicant’s proposed ground 1.
[7]While the admissibility of parts of a number of the other documents tendered by the parties may have been capable of debate before the judge, apart from the issue of the admissibility of the Panel Reasons, there were no other admissibility issues raised before the primary judge.
The medical panel certificates of opinion
At the hearing of the application, four medical panel certificates of opinion were tendered. The certificates of opinion that are significant for present purposes are the third and fourth certificates, dated 29 August 2016 and 6 February 2017 respectively (’the third certificate of opinion’ and ‘the fourth certificate of opinion’).
In the third certificate of opinion, the medical panel to whom those questions were referred (‘the third medical panel’) gave the following answers to the following questions:
Question 1What is the nature of the Plaintiff’s current medical condition relevant to the injuries referred to in paragraph 6 of the draft statement of claim, namely:
(a)Injury to the lower back with radiation to the left leg?
(b)Impairment of the function of the lumbar spine?
(c)Psychiatric reaction, anxiety, depression? (herein referred to as the ‘alleged injuries’.
Answer:The Panel is of the opinion that the Plaintiff is suffering from mild residual dysfunction of the lumbar spine secondary to an L4–5 disc injury but without objective clinical evidence of radiculopathy or any neurologic compromise and an adjustment disorder with depressed mood, relevant to the ‘alleged injuries’.
Question 2Do any of the current physical or mental conditions identified in response to question 1 result from or are they materially contributed to by the injury allegedly sustained on 29 January 2011?
Answer:The Panel is of the opinion that the Plaintiff’s current low back and psychiatric condition are still materially contributed to by the injury allegedly sustained on 29 January 2011.
Question 3Does the Plaintiff have:
(a)A current capacity for his pre-injury duties as a laundry hand?
(b)A current capacity for work as a:
(i)Hand packer?
(ii)Process worker?
(iii)Product examiner?
(c)A current capacity for work in other suitable employment?
Answer:(a) No.
(b)(i) Yes
(ii) Not Applicable
(iii) Not Applicable
(c) No.
Question 4If yes to question 3(c) above, what constitutes suitable employment for the Plaintiff?
Answer:Not Applicable.
Question 5If yes to question 3(a), (b) or (c) above, for how many hours per week can the Plaintiff perform such duties or employment?
Answer:20 hours per week.
Question 6If no to question 3(a), (b) or (c) above:
(a)Does the Plaintiff’s incapacity for work result from or is it materially contributed to by any, and if so which, of the alleged injuries?
(b)Is any such incapacity permanent?
Answer:The Panel is of the opinion that the Plaintiff’s incapacity for work (pre-injury duties) is still materially contributed to by the physical injury to the Plaintiff’s low back and his incapacity for his pre-injury duties is permanent.
Because the third medical panel did not answers questions 3(b)(ii) and (iii), and consequently did not answer question 5 with respect to the occupations of process worker and product examiner, and because it also did not answer question 6 in relation to the applicant’s incapacity for other suitable employment, the matter was referred back to the third medical panel to answer further medical questions. The third medical panel then provided the fourth certificate of opinion in which the third medical panel gave the following answers to the following medical questions:
Question 1The Panel is requested to provide clarification, by providing either a yes or no response (whichever is appropriate), regarding its opinion in relation to Mr Yirga-Denbu’s current capacity for work as a:
(a)Process worker
(b)Product examiner.
Answer:(a) Yes
(b)No.
Question 2How many hours per week does Mr Yirga-Denbu have capacity to work as a process worker?
Answer:20 hours per week.
Question 3How many hours per week does Mr Yirga-Denbu have capacity to work as a product examiner?
Answer:0 hours per week.
Question 4Does Mr Yirga-Denbu’s incapacity for work as a process worker (if any) result from or is it materially contributed to by any, and if so which, of the alleged injuries?
Answer:In the Panel’s opinion the Plaintiff’s partial incapacity for work as a process worker results from and is still materially contributed to by the Plaintiff’s alleged lower back injury.
Question 5Is Mr Yirga-Denbu’s incapacity for work as a process worker (if any) permanent?
Answer:No.
Question 6Does Mr Yirga-Denbu’s incapacity for work as a product examiner (if any) result from or is it materially contributed to by any, and if so which, of the alleged injuries?
Answer:In the Panel’s opinion the Plaintiff’s incapacity for work as a product examiner results from and is materially contributed to by the physical injury to the Plaintiff’s low back.
Question 7Is Mr Yirga-Denbu’s incapacity for work as a product examiner (if any) permanent?
Answer:Yes.
Question 8Does Mr Yirga-Denbu’s incapacity for work in other suitable employment result from or is it materially contributed to by any, and if so which, of the alleged injuries?
Answer:The Plaintiff’s incapacity for work in other suitable employment results from and is materially contributed to by the physical injury to the Plaintiff’s low back.
Question 9Is Mr Yirga-Denbu’s incapacity for work in other suitable employment permanent?
Answer:Yes.
Question 10 Does Mr Yirga-Denbu’s incapacity for work as a hand packer result from or is it materially contributed to by any, and if so which, of the alleged injuries?
Answer:The Panel is of the opinion that the Plaintiff’s partial incapacity for work as a hand packer results from and is still materially contributed to by the alleged low back injury.
Question 11Is Mr Yirga-Denbu’s incapacity for work as a hand packer permanent?
Answer:No.
In summary, in its certificates of opinion, the third medical panel concluded that the applicant had a current capacity to work as a hand packer and a process worker for 20 hours per week; that this incapacity was materially contributed to by the physical injury to the applicant’s low back; but that this incapacity is not permanent. On the other hand, the third medical panel also concluded that the applicant has no capacity for his pre-injury duties as a laundry hand, no capacity to work as a product examiner and no capacity to work in other suitable employment. Moreover, the third medical panel concluded that these incapacities were materially contributed to by the physical injury to the applicant’s low back and were permanent.
The applicant’s evidence and background facts
Much of the relevant background to this application was not in dispute before the primary judge or in this Court. The applicant’s description of his background circumstances was uncontroversial. Such dispute as there was, and which is relevant in this Court, largely centred around the applicant’s description of the extent of his pre-injury working hours and pre-injury gross weekly earnings.
The applicant was born on 2 February 1968 in Ethiopia. He was almost 44 years of age at the time he suffered injury. He was 49 at the time of trial. The applicant attended school in Ethiopia, completing the equivalent of year 12. In Ethiopia, he worked in a family business assisting his father with bookkeeping duties for a family-run restaurant.
In December 2007, the applicant migrated to Australia. Upon his arrival in Australia, the applicant married. He and his wife subsequently had two children. After his arrival in Australia, the applicant obtained work as a packer in a warehouse, before working as a cleaner at a school. On 23 June 2008, the applicant obtained casual employment with Princes Laundry (his employer at the time he suffered injury on 29 January 2011). This employment became full-time in about March 2009.
The applicant’s evidence was that he performed work duties initially at the Sunshine and Footscray Hospitals for two months, and then at the Royal Melbourne Hospital for some 12 months. He then commenced work Monday to Friday at the Royal Children’s Hospital and on Saturdays and Sundays at the Royal Melbourne Hospital. The applicant deposed to working seven days a week, up to 60 hours per week including overtime. The applicant’s duties involved packing clean linen onto trolleys, delivering linen, preparing bundles of linen and blankets and collecting dirty laundry. The applicant’s evidence was that his duties involved lifting and moving laundry bags which could weigh up to 35 kilograms.
At approximately 8.45 am on 29 January 2011, while lifting six blankets in the course of his employment at the Royal Melbourne Hospital, the applicant felt a ‘crunch’ in his lower back. The applicant described his back ‘seizing up’ and that he could not move because of severe pain. He also felt weakness and numbness in his left leg at this time.
The applicant was taken, by a fellow employee, to the Royal Melbourne Hospital emergency department. He was admitted overnight for management and treatment of his pain, before being discharged home the following day. A CT-scan performed on 4 February 2011 demonstrated a significant broad-based posterior disc bulge at the L4–5 level causing spinal canal stenosis, indentation on the thecal sac ‘and most likely of bilateral descending L5 nerve roots’.
The applicant underwent an MRI-scan of his lumbar spine on 3 March 2011. This confirmed the presence of L4–5 posterior disc herniation with crowding of the cauda equina. On review at the Royal Melbourne Hospital outpatients clinic on 7 March 2011, the applicant’s treating neurosurgeon was concerned that, unless surgery was performed, the large disc herniation that was present would give rise to a ‘relatively high risk of cauda equina syndrome’. The applicant, however, declined a recommendation for surgery. Thereafter, the applicant was treated conservatively.
A follow-up MRI-scan of the applicant’s lumbar spine, performed on 5 September 2011, showed a slight decrease in the size of the L4–5 disc herniation. Another MRI-scan, performed on 26 November 2012 showed no change in the size of the L4–5 disc herniation.
At some time during 2012, the applicant’s wife ‘ordered him from their home’.[8] As the judge described it, ‘[the applicant] believes his irritability played a part in her action’.
[8]Reasons [13].
The applicant’s subsequent treatment was conservative in nature, involving physiotherapy, hydrotherapy, attendances at a pain management clinic and consultation with the applicant’s general practitioner, Dr Hagos, together with referrals provided by Dr Hagos.
In his first affidavit, the applicant described continuing to suffer ongoing pain in his lower back and left leg. He described the pain as constant and radiating down his left thigh and leg. He said his leg also felt weaker and he had poor balance as a result. Additionally, the applicant gave evidence that his lower back symptoms were exacerbated by prolonged walking, sitting, repeated bending and ‘even sneezing’.
In his second affidavit (sworn 8 June 2017) the applicant deposed that his current medication included Panadeine Forte, Panadol Osteo, Tramadol, Mobic, Prestic, Gabapentin, Nexium and Duodart. He said he continued to see his general practitioner monthly for ongoing treatment of his lower back and leg pain, he continued to see a psychologist and he also attended hydrotherapy four days a week. As to his working capacity, the applicant deposed:
I believe that my future earning capacity has diminished. My lower back and left leg pain is always there and I am uncertain about my future capacity to return to work in the foreseeable future. I have not worked since January 2011 and I certainly do not believe that I could work a full eight hour shift at any work or attend work on a reliable basis because of my pain and limitation. The medication which I take daily often makes me feel drowsy and I am easily confused.
…
I believe that my future earning capacity has been severely impaired if not destroyed because of the injuries, my background, limited sedentary skills and poor English language ability.
Much of the respondent’s cross-examination of the applicant before the primary judge was directed to the number of hours worked per week by the applicant before he suffered injury, and the amounts the applicant was paid for that work. In cross-examination, the applicant agreed that his normal working hours were eight hours per day. He said, however, that he ‘hardly ever work[ed] only eight hours’.
Evidence of the applicant’s gross income and pay records
As we have already said, on the hearing of the application, a summary of the applicant’s gross earnings for the financial years ended 30 June 2008 to 30 June 2016 was tendered. Relevantly, the summary showed that the applicant’s gross income for the financial years ended 30 June 2008 to 30 June 2011 was as follows:
Financial Year Ending
Gross Income
30 June 2008
$ 6,351
30 June 2009
$21,271
30 June 2010
$46,223
30 June 2011
$48,636
The pay records tendered at trial showed the gross weekly earnings paid to the applicant in the course of his employment with Princes Laundry from 31 March 2009 to 22 March 2011. At trial, counsel for the applicant produced, and then, relied upon a table headed ‘Extract of Pay Slips’. In this document, the gross amounts paid to the applicant for 24 of the weeks occurred between 13 October 2009 and 28 December 2010. The table showed that on these selected weeks the applicant’s weekly gross earnings ranged from $1,003.66 up to $1,283.85. It may, however, be observed that, during the period covering these weeks, there were weeks when the applicant’s gross weekly earnings were less than the amounts set out in the applicant’s counsel’s table. The pay records show that for the period of 12 months prior to 29 January 2011, with one exception, the applicant’s weekly gross pay ranged from $786.20 to $1283.85. The exception was the week ended 31 August 2010 when it would appear that for some part of that week the applicant was sick. In that week, the applicant’s gross pay was $656.56.
The medical evidence
In the course of summarising the applicant’s evidence and referring to the third medical panel’s certificates of opinion, we have already described some of the medical evidence that was tendered before the judge. The balance of the medical evidence tendered before the judge comprised medical reports, clinical records and the disputed statement of reasons given by the third medical panel. Having regard to the issues now in dispute, it is not necessary to summarise all of the medical evidence. We should, however, refer to the evidence that was given concerning the ultimate prognosis of the applicant’s physical injury and the question of what, if any, incapacity for work might be permanent.
In a report dated 26 June 2013, Mr Kane Nickles, a physiotherapist who treated the applicant, said:
The prognosis is very poor for Mr Yirga-Denbu. After this much time and treatment of a conservative nature, any potential for recovery should have become realised. I do not think with more time and conservative management that there will be much in the way of permanent improvement. I am sure that there may be some short term relief with conservative management and that may help improve the quality of life measure.
I think that the avenue for future improvement is most likely going to be via surgery. However I respect that it is solely up to Mr Yirga-Denbu to make the informed decision on whether he accepts the risks to potential benefits. …
Without any further treatment I do not think Mr Yirga-Denbu will be able to return to his pre-injury duties or employment. His function remains significantly reduced.
In a subsequent report (dated 8 July 2014), Mr Nickles expressed a similar conclusion stating again that the prognosis for the applicant was very poor and that he did not think that more conservative management would ‘help much in the way of permanent improvement’.
The applicant was examined on 16 February 2015 by an occupational and environmental physician, Dr Jurie Snyman. Dr Snyman appeared to accept that the applicant had no capacity for employment. In her report, Dr Snyman said:
The current incapacity now seems to be an established incapacity, with no results reported to convey an ability for any employment over the last four years.
The applicant was examined by Dr Robert Athey, a consultant psychiatrist, on two occasions in February and March 2016. Following his second examination, Dr Athey provided a report in which he stated:
Unless his physical problem improves, that is his back pain is reduced, I cannot see him being able to work in the future on both physical and psychiatric grounds combined.
…
Unfortunately, in reality Mr Yirga-Denbu has no job training, speaks very little English and is severely limited physically, as well as having significant psychiatric symptoms which would impair decision-making, concentration and focusing his mind on a particular topic, and it is going to be very difficult for him to find work.
Therefore, on the balance of probability his impairment is likely to be permanent.
The vocational assessment reports
The vocational assessment reports tendered on the hearing were largely concerned with identifying jobs that may or may not be within the applicant’s capacity. Having regard to the third medical panel’s certificates of opinion, the material in these reports that is of specific relevance is the information about the positions of hand packer and process worker.
In a report written by Mr Paul Hartley of Vocational Directions, dated 24 March 2016, it is stated that, as at August 2014, the average gross weekly full-time Australian wage was $677 for a process worker, and $805 for a hand packer. A little later in the report, Mr Hartley stated that ‘Payscale advises the range of hourly rates for packers in Australia is $16.19 to $24.95, with the average being $19/hour’. That said, in final submissions to the judge, counsel for the applicant submitted (without demur from counsel for the respondent or the judge) that the parties’ experts were ‘in agreement on the appropriate gross earnings for a [person] of the [applicant’s] age being $827 in the case of a hand packer and $758 in the case of a process worker’. From the figures put in argument by counsel to the primary judge, it appears that these figure were accepted as being the appropriate gross rates of pay for a 38 hour week.
Mr Hartley is an occupational rehabilitation consultant. At the time he wrote his report of 24 March 2016, he had 17 years’ experience working in the occupational rehabilitation industry. In his report, Mr Hartley expressed his opinion with respect to the applicant’s capacity for employment as follows:
It is my opinion there are currently no suitable employment options open for Mr Yirga-Denbu that he would be able to undertake by virtue of his work related injuries and their sequelae, and his persistent mechanical lower back pain, bilateral lower limb and associated reduced level of function and psychological symptoms. His pain and physical disability have been chronic and debilitating for five years, and his quality of life has been significantly diminished, not just by lack of employment, but also by the loss of his family as a result of his loss of income and work.
It is my opinion that even though Mr Yirga-Denbu’s pain and injury symptoms are currently severe and disabling, his symptoms may well increase should he return to work that requires duties that could exacerbate his lower back injury.
I believe that he is, and will on the balance of probabilities remain, unemployable due to his poor prognosis for improvement, his post injury level of incapacity, his injury related chronic severe pain and disability, emotional lability, poor English literacy skills, lack of digital literacy, his limited vocational history with a lack of work experience for other suitable roles, his lack of transferable skills, educational or qualifications, his protracted length of time from the workforce, his poor ability to undertake retraining, his advancing age, his geographical location and the paucity of occupational rehabilitation post injury.
It is my opinion that Mr Yirga-Denbu is not fit for ‘suitable duties’ and that he has no ‘current work capacity’ within the meaning of the Accident Compensation Act 1985. Furthermore, I am of the opinion that on the balance of probabilities Mr Yirga-Denbu will have no work capacity for the foreseeable future.
In a report dated 26 September 2016 (the contents of which is the subject of the applicant’s proposed ground 3), Mr Hartley expressed an opinion about the possibility of the applicant performing work for 20 hours or more in a packing job. Mr Hartley said:
Over the past four days, I have undertaken a comprehensive online search for light packer jobs across the Melbourne metropolitan region and could find none with direct employment, the vast majority of all such jobs being through recruitment/labour hire agencies, and no ‘light’ packing vacancies within his geographical region.
·In the case of labour hire agencies, who require pre-employment medicals and employment candidates who have previous relevant experience as they do not train their staff, I believe the issue would not be whether he would be able to increase his hours, rather:
·Would he be able to gain employment at all?
·Would he be able to work on a regular 20-hour per week basis, due to changing availability of work within the highly casualised manufacturing industry? It is most likely in my experience that there would be ‘downtime’ in which he would be unable to access employment, although I am unable to provide an estimate or percentage of ‘non-work’ time in these industries.
·He would most likely be required to work full days of work in such work conditions, thus he would have [to] commence work undertaking three full shifts per week (about 22.5 hours/week) at a minimum to sustain being offered shifts of work.
·If he was to be able to successfully access light packing employment as a direct employee, I believe that he would most likely be required to work on a full-time basis immediately (38/week) unless his employment was gained through an employer incentive scheme that would allow a graduated return to suitable work duties.
·In an ideal world where Mr Yirga-Denbu was able to commence work and graduate duties as tolerated, your client’s work capacity would be guided by his tolerance levels to work activities, and I am unable to prognosticate at what weekly rate of hours his symptoms may become such that he would reach his maximum tolerance. On the balance of probabilities I doubt that he would tolerate full-time duties, and I do not believe that he would be able to undertake regular overtime and work the reported seven days per week that he did pre-injury.
The respondent tendered a vocational assessment report from Recovre dated 19 February 2016. This is the report referred to in the applicant’s proposed grounds 4 and 6(a). The Recovre report identified the positions of ‘Hand Packer (within restrictions)’ and ‘Process Worker (within restrictions)’ as being potentially suitable for the applicant. The authors of the Recovre report then identified as ‘typical physical and physiological demands for packers’:
·Light to medium physical demand levels.
·Stands constantly when working.
·Stretching across is a frequent requirement for packers.
·Squatting or crouching movements may be required on an occasional basis.
·Bending is frequent where lifting or leaning over packing equipment is required.
·Twisting of the body or neck may be required on an occasional to frequent basis.
·Lifting and carrying is required when moving packed containers and when bringing product to be packed to the packing area.
As to the job of a process worker, the authors of the Recovre report observed that the physical demands of process worker roles typically fall within the ‘medium’ category. Medium work was then defined as ‘lifting 22.7 kgs maximum occasionally with frequent lifting and/or carrying of objects weighing 11.3 kgs’.
The Panel Reasons
In the hearing before the primary judge, the applicant’s counsel conceded (correctly in our view) that the Court was bound by the third medical panel’s certificates of opinion. Counsel for the applicant submitted that the third medical panel had concluded that the applicant had a physical capacity to undertake work as a process worker for 20 hours a week and also had the physical capacity to undertake work as a hand packer for 20 hours a week, and that those incapacities were not permanent. Counsel submitted that there was ‘room for improvement’ and that this was reflected in the third medical panel’s answer to question 11. Counsel then submitted:
What we opened and what we say in final address is that the medical panel has not addressed the question of the extent to which the plaintiff will improve and we say in those circumstances it remains open to the court to determine on all the evidence, including the plaintiff’s evidence and the medical evidence which is before your Honour as to what is a fair view of the likely improvement which the medical panel says on the balance of probabilities will occur.
Counsel for the applicant then made submissions to the judge about the whole of the evidence, concluding that the evidence tendered justified a finding that, whatever improvement might ultimately occur, there would remain a permanent loss of earning capacity which would be productive of a financial loss of 40 per centum or more as required by s 134AB(38)(e)(ii) of the AC Act.
In response to these submissions, the respondent’s counsel contended that the submissions made by the applicant’s counsel, about ‘improvement’, sought to interpret the third medical panel’s reasons. The respondent’s counsel then contended that the applicant’s attempt to interpret the third medical panel’s reasons had been done by reference to material which was said to have directly taken issue with those reasons. The respondent’s counsel went on:
So if there’s a point that is sought to be made by the plaintiff about the panel’s opinion and the extent to which that can stand for the proposition that there will be improvement, the best measure of that is in the reasons so we would renew that tender.
Having heard argument, the judge admitted the third medical panel’s written reasons that are the subject of the applicant’s proposed ground 1 (or, as we have referred to them, the Panel Reasons). The judge’s reasons for admitting the Panel Reasons were as follows:
I must say that the opinions of medical panels are, generally speaking, very useful insofar as statutory benefits claims are concerned, but every now and again — that’s been my area of general experience, every now and again you get this sort of issue. In this case it’s not the panel’s fault at all because they were asked specific questions, at least it would seem the fourth time around, or at least the fourth opinion insofar as they were asked in relation to, ‘Described occupations. Process worker, product examiner and hand packer’.
In relation to process worker and hand packer, firstly, that they were asked whether: ‘The plaintiff had a current work capacity for work in relation to a process worker’, and they said, ‘Yes’. Then they were asked specifically: ‘How many hours per week does the plaintiff have capacity to work as a process worker?’, and they answered that, ’20 hours per week’. In relation to a product examiner, the panel took the view he had no current capacity for work, but in relation to hand packer, which was apparently his pre-injury employment, they made the same answer as they gave in relation to process worker, firstly, that he has a capacity for work and, secondly, that the hours are 20 hours per week.
They were then asked a number of questions in relation to the permanency of the capacity or the incapacity for work, for example, in relation to other suitable employment, they were asked: ‘Is the incapacity for work in other suitable work permanent’, and the answer given was, ‘Yes’, but in relation to the hand packer and the process worker, they were asked, for instance, in relation to the hand packing employment: ‘Is his incapacity for work as a hand packer permanent’, to which they said, ‘No’, and they made that same answer in relation to process worker.
I got the impression, and I may be doing the defendant a disservice but his position tended to change a little over time. Certainly I was under the original understanding that the parties were agreed that the only way I could deal with those answers in relation to hand packer and process worker was to interpret that as meaning that the panel foresaw an improvement in the capacity of the worker in those employments to work more than 20 hours a week. I am not too sure whether the defendant is adhering to that position but even assuming that it is adhering to that position, I am still with this unusual circumstance that has been pointed out (indistinct) attachment presumably to the reasons given by the medical panel of all the documents that they were provided with, including, I am told, two of the three reports from Mr Hartley or Dr Hartley and one of the reports from Mr Snyman, which is an important consideration for me to understand how the plaintiff is putting its position.
It would seem to me that my seeing the reasons could well be important for me coming to an understanding of what precisely the medical panel meant when it gave that series of answers. You have got to remember that going through my mind is not merely the 20 hours per week and not permanent in relation to hand packing and process working, but also the narrower hours, if you like, in relation to one of the occupations, the product examiner, that’s no hours per week and that’s a permanent state of affairs, coupled with other suitable employment, ‘Is that permanent? Yes’, what precisely they meant by that if it’s explained at all in their reasons in respect of that particular answer.
So I, in theory at least, would see some benefit in having those reasons provided to me and over objection, I will admit them.
It is not necessary to set out all of the Panel Reasons. In his reasons for judgment (to which we will make more extensive reference below) the judge referred to two passages in the Panel Reasons as being relevant to the meaning of the panel’s negative answers to questions about whether incapacities found by the panel, as having been sustained by the applicant, for particular work, were permanent. The first passage was a passage in which the third medical panel noted that the applicant’s ‘mild low back dysfunction would limit employment options requiring any repetitive bending or lifting or manoeuvring of heavy weights’.[9] The second passage of the Panel Reasons to which the judge made reference was as follows:
As the Panel considered that any ongoing condition of the Plaintiff’s low back is mild he would be able to return to employment as a hand packer of light items or process worker in an environment where normal work practices of job/task rotation occurs initially starting on a part-time basis of 20 hours per week but gradually increasing his work hours over time.
The Panel therefore concluded that the Plaintiff has a current capacity as a hand packer (light items) and as a process worker initially for 20 hours per week but gradually increasing over time as he work hardens. The Panel further considered, based upon its own experience and expertise, that that (sic) there has been some resolution in the Plaintiff’s back injury and that this improvement in his physical status will continue and that he will be able to undertake additional hours as a hand packer (light items) and as a process worker. The Panel therefore concluded that the Plaintiff’s current partial incapacity for work as a hand packer (light items) and as a process worker results from and is still materially contributed to by the alleged low back injury but the worker’s partial incapacity for work as a hand packer (light items) and process worker is not permanent.[10]
[9]Ibid [41].
[10]Ibid [40].
The judge’s reasons
In his reasons for judgment, the judge commenced with a description of the proceeding, the circumstances of the case and the evidence.[11] The judge then referred to the fact that there had been four opinions given by medical panels, and then dealt in more detail with the medical panel opinions and reasons.[12] The judge then returned to a discussion of the applicant’s evidence and a report of Recovre (a vocational assessment report dated 19 February 2016). The judge observed that the identification of hand packer and process worker as suitable jobs had come from the report of Recovre. As the judge, however observed, the authors of that report qualified their references to those jobs using the expression ‘within limitations’.[13] The limitations were said to include the avoidance of heavy levels of manual handling; the avoidance of significant bending of the applicant’s trunk; and allowing the applicant opportunities to vary his posture at regular intervals.
[11]Ibid [1]–[36].
[12]Ibid [37]–[41].
[13]Ibid [42].
Having discussed the evidence tendered and called at the hearing, the judge summarised the relevant legal issues.[14] The judge then dealt with the applicant’s pain and suffering consequences arising from the applicant’s back injury. The judge concluded that the applicant satisfied the ‘very considerable’ test — giving the applicant an entitlement to commence a proceeding for pain and suffering damages.[15] In the course of so concluding, the judge noted that the applicant had ‘lost the capacity for his pre-injury job’ and that the applicant had ‘worked long hours in that job’.[16]
[14]Ibid [48]–[49].
[15]Ibid [55]–[56].
[16]Ibid [51].
The judge then turned to the issue of loss of earning capacity. The judge’s reasons for refusing the applicant leave to commence a proceeding claiming pecuniary loss damages were set out in his reasons at [57] and [58]. The judge said:
Where the Medical Panel speaks of ‘partial incapacity for work’ and ‘current partial incapacity for work’, it refers to his incapacity for work now. The expression ‘not permanent’ means he will work more hours in the future in those jobs than the 20 he could now work. Therein lies the difficulty with the opinion. It does not say he could in the future work full hours in those jobs but will work more than 20 hours due to two factors: work hardening; and the continued resolution of his back injury. The Panel does not say what are the most hours he could work in those jobs. Perhaps it could not say. Its Reasons give me no basis to infer. Only Mr Hartley was asked to say and he could not.
The opinion raised questions which have not been answered by the evidence. I cannot find where his maximum hours will sit permanently. They will sit above 20. Where they would sit ultimately, I cannot find. I cannot find a loss of earning capacity productive of a financial loss of 40 per cent or more. I cannot give leave under this head.[17]
[17]Ibid [57]–[58].
The parties’ contentions
While the applicant has identified six proposed grounds of appeal, in substance the applicant makes four complaints:
(1)The judge was wrong to admit the Panel Reasons. On the authority of Lianos v Inner & Eastern Health Care Network,[18] the Panel Reasons were inadmissible. While there might be an argument for admitting the written reasons of a medical panel in a case where this was necessary to resolve an ambiguity in the language of the certificate of opinion,[19] there was no ambiguity in the third medical panel’s certificates of opinion in this case.
(2)The judge erred in failing to examine and deal with the whole of the evidence to determine whether or not the applicant had sustained a permanent loss of earning capacity which would be productive of financial loss of 40 per centum or more as required by s 134AB(38)(e) of the AC Act.
(3)The judge misstated and/or did not deal appropriately with the evidence, and in particular the evidence of Mr Hartley and the evidence in the Recovre report.
(4)The judge’s reasons were inadequate.
[18](2001) 3 VR 136 (‘Lianos’).
[19]Ibid 143 [22].
In response to the applicant’s submissions, the respondent observed that leave was refused because the primary judge was not persuaded, on the evidence before him, as to the level of the applicant’s permanent loss of earning capacity and was, therefore, unable to conclude that it was productive of a financial loss of 40 per cent or more as required by s 134AB(38)(e)(ii) of the AC Act. The applicant bore the onus of positively satisfying the judge that he had a permanent loss of earning capacity of 40 per cent or more. This he failed to do.
As to the admissibility of the Panel Reasons, the respondent submitted that the judge made no error in admitting this document. The document was said to be admissible on three bases. First, the document contained relevant and admissible expert opinions which, if accepted, could rationally affect the assessment of the existence of a fact in issue in the proceeding, and was thus admissible pursuant to s 55 of the Evidence Act 2008[20] — the fact in issue being the existence of a permanent incapacity.
[20]See also, s 79 of the Evidence Act 2008.
Secondly, the Panel Reasons were admissible so as to give context to the certificates of opinion. By way of example, it was submitted that, in order to understand what was meant by the references to the positions of hand packer or process worker in the certificates of opinion, it was necessary to go to the documents the medical panel said that it relied upon in order to see what those positions entailed.
Thirdly, the Panel Reasons were admissible to resolve an ambiguity in the medical panel’s conclusion that the applicant had a present incapacity to work more than 20 hours per week as a hand packer or process worker, but that this incapacity was not permanent. The respondent relied upon what was said in Lianos about the possibility of tendering reasons for the purpose of resolving an ambiguity in the language of the certificate of opinion.[21] To the extent that Lianos might be thought to stand for the proposition that a medical panel’s reasons were inadmissible, the respondent submitted that it was distinguishable because, unlike the legislative regime in place at the time of Lianos, s 313(2) of the WIRC Act now requires a medical panel to ‘give a certificate as to its opinion and a written statement of reasons for that opinion’.
[21]Lianos (2001) 3 VR 136, 143 [22].
Next, the respondent submitted that, insofar as the applicant attempted to discharge the onus of establishing the requisite loss of earning capacity by relying upon his own affidavit evidence and the reports of Dr Snyman, Dr Athey and Mr Hartley, the applicant failed. Opinions relied upon by the applicant which suggested that the applicant had a complete and permanent incapacity for work were precluded by the medical panel opinions set out in the third and fourth certificates of opinion.
Finally, the respondent submitted that the judge did not misstate any of the relevant evidence. Moreover, his reasons adequately disclosed a path of reasoning. The reason why the applicant was unsuccessful before the primary judge was plain from his Honour’s reasons for judgment — namely that his Honour could not be satisfied on the evidence of the level of the applicant’s permanent incapacity.
The admission of the Panel Reasons
The judge admitted the Panel Reasons because he thought that they could be important in aiding his understanding of what the medical panel meant by the answers it gave to the medical questions (specifically, what the medical panel meant by its answers to the questions in which it said that the applicant’s incapacity for working more than 20 hours per week hand packing or process working was not permanent).
It may be doubted that this was a correct basis upon which to admit the Panel Reasons. The answers given by the third medical panel to the medical questions were not themselves ambiguous. Whatever difficulty was caused by the answers was a product of the failure to pose, as a medical question, a question directed to ascertaining the medical panel’s opinion of the likely level of permanent incapacity (in the sense of ‘likely to last for the foreseeable future’)[22] the applicant might suffer, if any, in performing work as a process worker or hand packer.
[22]Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, 638 [33].
Similarly, the necessity for the judge (or this Court) to admit the Panel Reasons, to give context to the certificates of opinion, may be doubted. While there may be circumstances where it is necessary to admit a medical panel’s reasons to give context to the answers given in a certificate of opinion, the answers given in the third and fourth certificates of opinion about the lack of permanence of the incapacities referred to do not, on their face, require the need for context to be given by the provision of the Panel Reasons. The admission of the Panel Reasons on the basis of a need for the provision of context has the capacity to give rise to a risk of a court determining that an issue dealt with in the reasons, but not as part of an answer to a medical question in the certificate of opinion, might be held to be final and conclusive within the meaning of s 313(4) of the WIRC Act, in circumstances where such a result could not be justified by the terms of the statute.
In our view, there is force in the proposition that, to the extent that the Panel Reasons contained admissible opinion evidence about a fact in issue, the reasons were capable of being admitted in accordance with ss 55 and 79 of the Evidence Act 2008. While that was not the basis upon which the Panel Reasons were admitted by the primary judge, we see no injustice in permitting the respondent to rely on those reasons, so far as they are otherwise admissible, for the purpose of determining the extent (if any) to which the applicant suffers from a permanent incapacity to perform work as a hand packer or process worker.[23]
[23]As to the admissibility of medical opinions about the suitability of particular employment for an injured worker, see Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120, 141 [96]–[97].
While ss 272(1) and (3) of the WIRC Act provide that members of medical panels are competent to give evidence in proceedings as to matters in a certificate, and in proceedings as to reasons for an opinion under div 3 of pt 6, given by the medical panel of which they are a member, such members cannot be compelled to give such evidence.[24] In some cases, the fact that members of a medical panel cannot be compelled to give evidence about their reasons might tell against the admission of those reasons. It might be submitted that, in such a case, the reasons should be excluded under s 135 of the Evidence Act 2008, because they are incapable of being tested by cross-examination, and thus the probative value of them is substantially outweighed by the danger of unfair prejudice.
[24]See also s 541 of the WIRC Act which confers on members of medical panels, in the performance of their duties, the same protection and immunity as is conferred on a judge of the Supreme Court in the performance of his or her duties as a judge.
There was no cross-examination of any medical witness before the primary judge. Both parties appeared to be content for there to be no testing of any of the medical evidence by cross-examination. It was thus not submitted by counsel for the applicant that the Panel Reasons should be excluded under s 135 of the Evidence Act 2008
. That said, for completeness we should say that the Panel Reasons were admissible because they contained admissible evidence, the probative value of which was not outweighed by the danger that the evidence might be unfairly prejudicial to the applicant, or misleading or confusing, or cause or result in some undue waste of time.[25]
[25]See s 135 of the Evidence Act 2008.
For these reasons, we would reject the applicant’s proposed ground 1.
It also follows that we would reject proposed ground 2 because, there being no error in the conclusion that the Panel Reasons were admissible, the judge was in fact entitled to look at the reasons, as part of the total evidence, in order to determine the loss of earning capacity issue. That said, proposed ground 2 must be rejected for the additional reason that it does not appear that the judge used the Panel Reasons in the way asserted by the applicant. The judge merely observed (after looking at the Panel Reasons) that the medical panel had not answered the question about the extent of the relevant permanent incapacities.
Did the judge err in failing to examine and deal with the whole of the evidence to determine whether or not the applicant had sustained a permanent loss of earning capacity of 40 per centum or more?
The judge commenced his analysis on the loss of earning capacity issue by examining the third medical panel’s answers to the medical questions referred to it. The judge (correctly in our view) noted that the expression ‘not permanent’ meant that the applicant would work more hours in the future in those jobs than the 20 hours he was able to work at the time the certificates of opinion were completed. The judge then noted that the applicant would have a capacity to work greater hours because of ‘work hardening and the continued resolution of his back injury’. The judge then observed that the medical panel ‘[did] not say what are the most hours [the applicant] could work in those jobs’.[26] He then said that the Panel Reasons gave him ‘no basis to infer’.
[26]Reasons [57].
Next, the judge referred to Mr Hartley’s evidence, observing that, while Mr Hartley had been asked a question about maximum hours, Mr Hartley ‘could not [say]’.[27] Then, without further reference to the evidence, the judge stated that the third medical panel’s opinion ‘raised questions which have not been answered by the evidence’ and that he could not find where, above 20, the maximum number of hours would ultimately sit.[28] The judge then said that he could not find a loss of earning capacity productive of a financial loss of 40 per cent or more and therefore could not give leave for the applicant to commence a proceeding claiming pecuniary loss damages.[29]
[27]Ibid.
[28]Ibid [58].
[29]Ibid.
The task for the judge in assessing whether the applicant suffered from a permanent loss of earning capacity productive of a financial loss of 40 per cent or more may have been a difficult one. That, however, did not relieve the judge of the obligation of examining the whole of the evidence and answering the relevant question upon a consideration of that evidence. With respect to the judge, it was not sufficient to say simply that the issue was not answered by the medical panel or the one witness who was asked the relevant question and that, as a result, he was unable to make a finding. At the very least, the judge was required to engage with all of the evidence tendered, before coming to a conclusion that the applicant had or had not satisfied the onus of establishing a relevant permanent loss of earning capacity.
In our view, in is plain from the judge’s reasons that the judge erred in failing to determine for himself upon the whole of the evidence whether there was a relevant loss of earning capacity of 40 per cent or more (proposed ground 4). Alternatively, if the judge did determine this issue by reference to the whole of the evidence, then the judge’s reasons were inadequate in that they did not disclose the path of reasoning that led to the conclusion that, on the whole of the evidence, the applicant had not established the relevant 40 per cent or more permanent loss of earning capacity (proposed ground 6). That said, having regard to our conclusion that the judge did not determine the loss of earning capacity question for himself on the whole of the evidence, we will grant leave to appeal on proposed ground 4 and allow the appeal on that ground.
In argument, we raised with the parties the issue of whether, in the event that one or more of the applicant’s arguments succeeded, this Court should embark for itself upon an assessment of the evidence to determine whether or not the applicant has sustained a permanent loss of earning capacity of 40 per cent or more, or whether the matter should be remitted to the County Court. Both parties agreed that this Court was in as good a position as the trial judge to determine for itself the ultimate issue of the extent of any permanent loss of earning capacity suffered by the applicant. We agree. Moreover, it would be wasteful to require another court to examine material with which we are already familiar. This Court’s determination of the question of whether the applicant has sustained a permanent loss of earning capacity that is productive of a financial loss of 40 per cent or more will, of necessity, involve a consideration of the issues raised by the applicant in his proposed grounds 3 and 5.
Did the applicant suffer a permanent loss of earning capacity that will be productive of financial loss of 40 per centum or more?
Section 134AB(38)(e)(i) of the AC Act requires a worker to demonstrate, as a condition precedent to obtaining leave to commence a proceeding claiming pecuniary loss damages, that, at the date of hearing of the application, he or she had a loss of earning capacity of 40 per cent or more ‘measured’ as set out in s 134AB(38)(f). As was said in Hayhill Pty Ltd v Hodge,[30] that measurement of the claimed loss of earning capacity, as prescribed in s 134AB(38)(f), necessitates a comparison of two matters:
(a)the gross income the worker is earning or is capable of earning in suitable employment at the date of the hearing (referred to in some authorities as ‘after injury earnings’); and
(b)the gross income that the worker was earning or was capable of earning ‘during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred’ (again referred to in some authorities as ‘without injury earnings’).
[30][2006] VSCA 194 [2] (‘Hayhill’).
In Acir v Frosster Pty Ltd,[31] J Forrest J summarised a number of principles relevant to the performance of the exercise required to measure loss of earning capacity as set out in s 134AB(38)(f). The principles identified in Acir were subsequently endorsed by this Court in the Herald & Weekly Times v Jessop.[32] In Acir, J Forrest J said:
[31][2009] VSC 454 (‘Acir’).
[32][2014] VSCA 292 (‘Jessop’).
First, and importantly, s 134AB(38)(f) is a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is a part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of earning capacity sustained by the worker.
Second (and a corollary of the first proposition), in determining without injury earning capacity, the Court is not required to make an assessment, at this stage, of loss of earning capacity as in a claim for damages. Rather, it compares the worker’s earning capacity, as defined, with the statutory formula for the assessment of after injury earnings (considered subsequently).
Third, the fixing of the gross income which most fairly reflects the earning capacity is a limited inquiry not to be confused with that made in a damages claim. It … is confined to those matters which go to the practical exercise of that capacity, not its diminution by outside events. In that regard I have in mind those matters referred to by the Minister in the Second Reading Speech, namely, increases/decreases in wages and other employment opportunities. The exercise is not to determine loss of earning capacity – which is a damages issue, but, rather, to focus on earning capacity in a limited context.
Fourth, the sub-section does not mandate a mathematical assessment of without injury earnings, such as a formula based upon the earnings of the worker over a particular period prior to the injury or at the time of injury.
Rather, it requires the Court to fix a figure which ‘most fairly reflects the worker’s earning capacity’ without injury.[33]
[33]Acir [2009] VSC 454 [171]–[174] (citations omitted) (emphasis in original).
In argument in this Court, counsel for the respondent conceded that there was no issue that as at the date of the hearing of the application before the primary judge the applicant suffered from a loss of earning capacity of 40 per cent as measured by s 134AB(38)(f). The issue was whether there was a permanent loss of earning capacity at the requisite level (40 per cent or more). Notwithstanding the respondent’s concession, in order to examine what (if any) permanent loss of earning capacity the applicant sustained, it is necessary to examine and determine the extent of the applicant’s loss of earning capacity as at the date of the hearing of the application, before proceeding to determine whether there was any permanent loss of earning capacity which would be productive of a financial loss of 40 per cent or more.
It is convenient to start with an examination of the applicant’s without injury earnings. Section 134AB(38)(f)(ii) deals with the without injury earnings. That section requires the court to determine the gross income (expressed at an annual rate) that the applicant:
·was earning from personal exertion; or
·was capable of earning from personal exertion; or
·would have earned from personal exertion; or
·would have been capable of earning from personal exertion,
during that part of the period within three years before and three years after the applicant suffered injury, as most fairly reflects the applicant’s earning capacity had the injury not occurred.[34]
[34]Acir [2009] VSC 454 [165]; Jessop [2014] VSCA 292 [42].
Both parties made submissions at first instance, and in this Court, about particular gross weekly amounts that they contended were the appropriate without injury earnings. Each side then submitted that the weekly figures for which they contended could then be converted into annual figures by a process of simple arithmetic.
During the hearing before the primary judge, the respondent contended that the appropriate weekly without injury figure was $935. This figure was calculated by dividing the applicant’s gross income as shown in his tax return for the financial year ended 30 June 2011 ($48,636) by 52. In this Court, the respondent accepted that the figure should be slightly higher on the basis that one could not simply divide the applicant’s gross income as shown in his tax return for the financial year ended 30 June 2011 to arrive at a without injury earnings figure because, while the applicant performed overtime before 29 January 2011 (and thus had a higher gross weekly income before that time), he performed no overtime after suffering his injury.
In the hearing before the primary judge, the applicant advanced a number of scenarios concerning without injury earnings. The applicant’s primary submission before the primary judge was that the weekly without injury gross figure should have been $1,141.66. This figure was the applicant’s gross weekly income for the week ended 24 August 2010. In this Court, the applicant advanced the figure of $1,283.85, being the applicant’s gross weekly earnings for the week ended 6 April 2010. It was submitted that this was the figure that most fairly reflected the applicant’s capacity to earn income from personal exertion before he was injured, and that the figure was justified on the basis that the evidence disclosed that the applicant was ‘a person who was prepared to exercise maximal capacity’.
In Jessop, this Court identified the matters required to be taken into account in calculating the without injury earnings as required by s 134AB(38)(f)(ii). The Court said:
[F]or the purposes of s 134AB(38)(f)(ii) of the Act, a worker’s earning capacity represents a capital asset which, when exercised, produces income from personal exertion. It follows that a worker’s ability to earn income through personal exertion depends on the nature and quality of the worker’s capital asset and his or her capacity and willingness to use it to earn income. Thus, the worker’s physical and mental capacities to work are relevant, as are the type of work the worker is able to perform, the remuneration for that work and the hours that the worker is willing to work.
The facts of each case and the manner in which the worker presents his or her case will influence which factors are relevant to the application of s 134AB(38)(f)(ii) of the Act and the relative importance of those factors. The availability of work at the worker’s pre‑injury place of employment will not necessarily be relevant to an assessment of a worker’s earning capacity for the purposes of s 134AB(38)(f)(ii). It may, however, have probative value in some cases. For example, it may inform an assessment of a worker’s willingness to work where, over many years, work has been plentiful but the worker has always refused to accept offers to work beyond a certain number of hours per week. Availability of overtime work at the worker’s pre‑injury place of employment may also be relevant where the worker seeks to include a particular level of overtime in his or her calculations of without injury earning capacity.
The actual hours worked by a worker and his or her actual earnings are not always the best evidence of the worker’s earning capacity for the purposes of sub‑para (ii) of s 134AB(38)(f) of the Act. They will be the best evidence under the first scenario — ‘the gross income … that the worker was earning’ — but they will not necessarily be the best evidence in relation to the other three scenarios. Under those scenarios, the court is required to fix a representative figure for earning capacity which may take into account the amount of income earned but will not necessarily equate to that amount. In Acir, J Forrest J succinctly summarised the position as follows:
In most cases, the inquiry will be relatively simple; the wages at [the] time of injury will be established (scenario (a)) and generally, as the Second Reading Speech makes clear, the only other question will be determining whether, pursuant to scenario (c), there has been an increase or decrease in wages and the prospects of promotion. However, at times, scenarios (b) and (d) may need to be considered, such as, where it is necessary to examine the capabilities or capacity of the worker in terms of wages which could have been potentially earned or were prospectively available post-injury (e.g., if he or she was not working full-time at the time of the injury).
The essence, then, of the inquiry is to fix a figure which ‘most fairly’ reflects the earning capacity of the injured worker, absent the subject injury.[35]
[35]Jessop [2014] VSCA 292 [53]–[55].
In our view, prior to suffering his injury, the applicant had a capacity to work in his pre-injury employment on a full-time basis and to perform the overtime that was offered to him as disclosed in the pay records. Remembering that s 134AB(38)(f) is a gateway provision that does not require an assessment of loss of earning capacity as in a claim for damages (but rather the application of a statutory formula) and that the section does not mandate a mathematical assessment of without injury earnings, it is our view that the evidence disclosed that the applicant, prior to suffering his injury, had a capacity to earn a gross weekly income of $1,100. Therefore, and having regard to the applicant’s evidence, the gross yearly amounts as disclosed in his tax returns and the pay records, we conclude that an appropriate figure for without injury gross income from personal exertion (expressed at an annual rate) is $57,200.
At the time of the hearing of the application before the primary judge, the applicant had a capacity that was limited to performing 20 hours per week as a hand packer or a process worker. Taking the higher earnings figure for a hand packer ($827 for a 38 hour week), the applicant’s earning capacity as at the date of the hearing before the primary judge (after injury earnings) was $436. At an annual rate, the applicant’s after injury gross earnings were $22,634.
It follows that, as at the date of the hearing of the application before the primary judge, the applicant had a loss of earning capacity of more than 40 per cent as required by s 134AB(38)(e)(i), the without injury earnings figure being $57,200 and the after injury earnings figure being $22,634. We turn now to consider what (if any) permanent loss of earning capacity the evidence disclosed the applicant would suffer as a result of his lower back injury.
In its certificates of opinions, the third medical panel determined that the applicant had the capacity to work as a process worker and as a hand packer, limited to 20 hours per week, but that those incapacities were not permanent. On the other hand, the panel also determined that the applicant had no capacity to work as a product examiner, no capacity to work in his pre-injury duties as a laundry hand and no capacity to work in other suitable employment. Those total incapacities, unlike the incapacities found for process work and hand packing, were said by the medical panel, in its certificates of opinion, to be permanent.
It is implicit from the medical panel’s answers given in the third and fourth certificates of opinion that the present incapacities to work more than 20 hours per week as a process worker or hand packer is not permanent, in the sense that at some time in the foreseeable future, the applicant will be able to work more than 20 hours per week in each of those two positions. A question then arises as to how many more hours the applicant might be capable of working in the foreseeable future in those two positions (remembering at all times that the onus is on the applicant to establish the requisite 40 per cent financial loss as being likely to last for the foreseeable future).
In the Panel Reasons, the medical panel state that there will be a capacity for a gradual increase in the applicant’s working hours over time due to ‘work hardening’ and a resolution in the applicant’s back injury that will continue to occur. The applicant sought to attack these conclusions in the Panel Reasons on two bases.
First, it was submitted that the work hardening scenario was unrealistic when one had regard to the evidence in Mr Hartley’s report dated 26 September 2016 about the fact that, in commencing employment, the applicant would likely have to either start by undertaking three full shifts per week, or start on a full-time basis. The evidence of Mr Hartley was said to cut directly across the Panel Reasons which appeared to contemplate a commencement of employment for a shorter number of hours per day, and then the building up those hours by the applicant.
Secondly, the applicant submitted that when the medical panel came to provide the third and fourth certificates of opinion, more than five years had elapsed since the applicant’s injury. While ordinary human experience might suggest that there was not likely to be much further improvement after such a length of time, in this case the balance of the medical evidence (that is, the medical evidence other than that contained in the Panel Reasons) did not suggest any realistic possibility of significant physical improvement in the applicant’s condition. In support of these contentions, the applicant relied upon the medical reports, to which we have already made reference, in which there are statements that ‘any potential for recovery should have become realised’ and ‘the current incapacity now seems to be an established incapacity’.
The respondent, however, submitted that it was not open to the applicant to rely upon evidence that cut across the third and fourth certificates of opinion. The Court, it was submitted, was bound to conclude that there would be some increased capacity to perform more than 20 hours work per week in the positions of hand packer and process worker. Evidence that suggested a total or permanent incapacity that conflicted with answers given in the third or fourth certificates of opinion could not sit with answers given by the medical panel in the certificates of opinion, and was thus required to be rejected.
To the extent that the respondent submitted that evidence tendered before the primary judge that was in direct conflict with an answer given by the medical panel in one of its certificates of opinion could not be relied upon for any purpose, that submission must be rejected. We accept that an opinion of a witness that conflicts with a certificate of the opinion of a medical panel cannot be used in any way to undercut the medical panel’s opinion as expressed in its certificate of opinion. That does not mean, however, that there may not remain admissible evidence of the relevant witness that is capable of bearing on a question not foreclosed by the medical panel’s opinion. In a case like the present, an expert’s opinion that there would be no physical improvement after a particular point in time (or at all) contains within it the opinion that if that opinion is not accepted then whatever improvement might ultimately occur will not be great. Consistently with what is said by trial judges to juries, when charging them about the acceptance or rejection of evidence, merely because the trier of fact might reject (or, as in this case, be required to reject) particular evidence from a particular witness does not mean that all of that witness’s evidence must be rejected in its entirety.
In the present case, an examination of the whole of the evidence discloses that, whatever increase there might be in the capacity of the applicant to engage in work as a hand packer or process worker in the future, that improvement is not likely to be substantial. This is all the more so when one remembers that the plaintiff has a permanent incapacity for performing even the smallest number of hours work as a product examiner, or in his pre-injury employment, or in any other occupation for which he would otherwise be suited. Those permanent incapacities suggest that, whatever improvement there may be in the applicant’s incapacities for process work or hand packing, such improvement is not likely to be great.
In the end, it is a matter of judgment — remembering again that one is conducting an analysis required by a gateway provision. That said, in our view the evidence discloses that the applicant has a permanent incapacity to perform work as a process worker or a hand packer beyond 25 hours per week. Consistently with the medical panel’s certificates of opinion, that conclusion admits of the possibility that the applicant’s capacity for employment will, years after he suffered injury, improve from its present level by up to 25 per cent. We should observe that, while no medical witness express that precise conclusion, no such express statement was necessarily required to be expressed. The question of the precise extent of the applicant’s permanent incapacity was one that fell to be resolved by a consideration of all of the evidence.
It follows that the applicant’s gross after injury earnings figure, required to be calculated in accordance with s 134AB(38)(f)(i), is $544 per week ($21.76 per hour x 25 hours per week) and, expressed at an annual rate, is $28,288. The applicant has thus established a permanent loss of earning capacity which will be productive of a financial loss of the difference between $57,200 and $28,288. This constitutes a permanent financial loss of slightly more than 50 per cent — more than the 40 per cent required by s 134AB(38)(e)(ii) of the AC Act.
Conclusion
The applicant will be granted leave to appeal. The appeal will be allowed. The order granting the applicant leave to commence a common law proceeding, in which he was limited to claiming pain and suffering damages only, will be set aside, and in lieu thereof the applicant will be granted leave pursuant to s 134AB(16)(b) of the AC Act to commence a common law proceeding claiming both pain and suffering damages and pecuniary loss damages in respect of the injury he sustained in the course of his employment with Princes Laundry on 29 January 2011.
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