Zaa Thang v Victorian WorkCover Authority
[2020] VCC 617
•29 May 2020
pcb
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CI-18-04884
| SANG ZAA THANG | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE P GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 February 2020 | |
DATE OF JUDGMENT: | 29 May 2020 | |
CASE MAY BE CITED AS: | Zaa Thang v Victorian Workcover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 617 | |
REASONS FOR JUDGMENT
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Subject: Workplace Injury
Catchwords: Work Injury - pain and suffering conceded in hearing - suitable employment - whether plaintiff established loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013;
Cases Cited:Barwon Spinners v Podolark [2005] VSCA 33; Giankos v SPC Ardmona Operations (2011) 34 VR 120; PTC v Pitts [2007] VSC 356; Wedlemichael v ID Sales & Repairs Pty Ltd [2019] VSCA 68; Richter v Driscoll [2016] VSCA 142; Philmac Pty Ltd v Asti (1980) 26 SASR 213; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Hayhill Pty Ltd v Hodge [2006] VSCA194; Acir v Frosster Pty Ltd [2009] VSC 454; The Herald & Weekly Times v Jessop [2014] VSCA 292
Judgment: Plaintiff granted leave for pain and suffering and loss of earning capacity
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | MR G. CHANCELLOR, with MS N. CROWE, | Maurice Blackburn |
| For the Defendant | MR P.A. CZARNOTA | IDP Lawyers |
HIS HONOUR:
Introduction
1 The Plaintiff commenced proceedings pursuant to section 325 (1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). He seeks the grant of a certificate for permanent serious impairment or loss of function of the back in consequence of a L5/S1 disc protrusion for which he has undergone surgery and revision surgery with referred symptoms into the buttocks and legs and right leg sciatic symptoms. The Plaintiff also claimed a permanent severe mental or permanent severe behavioural disturbance or disorder, consisting of stress, anxiety and depression but the paragraph (c) limb was not pursued at the hearing. Finally, the plaintiff pursued a claim for a loss of earning capacity.
2 The plaintiff was represented by Mr Chancellor of counsel together with Ms Crowe of counsel and the defendant was represented by Mr Czarnota of counsel.
3 In the course of the hearing counsel for the defendant conceded pain and suffering as a result of the plaintiff’s impaired function of the back but contested the plaintiff’s claim for a loss of earnings capacity.[1] It was therefore this question that remained to be determined and that occupied the hearing.
[1] Transcript (‘T’) 45.
4 A good deal of the medico-legal opinions consisted of commentary and opinions on a number of proposed suitable employment that had been identified in occupational and rehabilitation reports. However, from an evidentiary standpoint, the matter became even more refined because the defendant’s counsel conceded[2] that there were but two jobs upon which it relied. They had been identified in Vocational and Rehabilitation reports[3] that amounted to “suitable employment” if, as it contended, I was satisfied that the plaintiff has a work capacity, and these are:
·Data Entry Operator,[4] and
·Warehouse Clerk.[5]
[2] T 1-2.
[3]Exhibit D3, Defendant’s Court Book (‘DCB’) 123-134 and Exhibit D4, DCB 135-165.
[4]Exhibit D3, DCB 132-133.
[5]Exhibit D4, DCB 162.
5 I note that had it been otherwise than by reason of the defendant’s concession, I would not have been satisfied that the other jobs identified, in any event, amounted to “suitable employment” as that concept is understood, and my conclusion about them is, in any event in the main, supported by medical opinions obtained by the parties.
6 Furthermore, and also because of the helpful concessions made by the defendant, it proved unnecessary for me to address a substantial amount of the treating medical material, but instead to confine my consideration to the contextual and probative worth of them when assessing if the plaintiff has a work capacity to undertake “suitable employment” and whether the plaintiff established a claim for a loss of earnings capacity.
7 In undertaking my task I have read and considered all the documentary evidence relied on by the plaintiff and the defendant, and as well, I have had regard to the plaintiff’s cross-examination and re-examination and the oral closing addresses of both counsel[6].
[6]As well the parties subsequently provided respective calculations relating to the loss of earnings exercise.
8 Because the plaintiff’s ability to undertake employment was the principal issue for determination, it has been necessary for me to address some of the factual background including treatments and procedures he has undergone as well as evidence of his likely prognosis.
The plaintiff
9 The plaintiff’s evidence in chief was contained in two affidavits sworn on 15 June 2018[7] and 4 February 2020[8].
[7]Exhibit P1, Plaintiffs Court Book (‘PCB’) 7-13.
[8] Exhibit P2, PCB 14-17.
10 The plaintiff was born in Myanmar on 18 September 1989 and was educated to Year 10. He completed a zoology course. He moved to Malaysia. He arrived in Australia in March 2008. He is married with two young daughters.
11 He attended Swinburne Croydon where he undertook an English course and gained a Certificate II as a car mechanic. He worked at ARB Corporation for approximately three months and then moved to Yarra Ranges Steel doing factory work including grinding. He next undertook a range of factory and labouring jobs through the labour hire company, Adecco. In November 2011, he recommenced employment with ARB Corporation, and for the first couple of years, worked mainly packing nuts and bolts. He also assisted with some assembly work and this involved him in bending, lifting and reaching activities. His medical records note an attendance on Dr Tan, his general practitioner on 29 August 2012 with low back pain and aching legs after lifting heavy objects at work. His symptoms settled.
12 Subsequently he obtained a forklift driver’s licence and then worked mainly as a forklift driver. He said he would experience an ache in his back by the end of a working day after prolonged periods sitting in a forklift. In March 2015, he attended his GP with a sore back, aggravated by the forklift driving. He was referred for a CT scan, but no significant abnormality was identified. His symptoms again gradually settled with medication and chiropractic treatment. He continued performing full time duties as a forklift driver and he continued to have a bit of an ache in his back by the end of a day’s work.
The Injury
13 At the time of the injury the plaintiff had been employed as a forklift driver with his employer for approximately seven years. He injured his back on 26 February 2016. He said he had been asked to retrieve from a pallet a roll of plastic bags about 2 metres long and that weighed about 60 kg. He bent down and heard a “click” in his back and he could not get up. He was taken by ambulance to Maroondah Hospital where he remained overnight and was discharged.
Investigations subsequent to injury and periods of light work duties
14 The plaintiff returned to light duties on 15 March 2016, but by the end of the day because of pain he was put off work. He made another return to work on 29 March 2016, undertaking work three days a week of four hours each. His pain persisted.
15 He was referred to a neurosurgeon, Mr Vellore, whom he saw on 28 April 2016 and who on 7 June 2016 performed a bilateral laminotomy, right L5/S1 microdiscectomy for a large right sided disc prolapse and right and left S1 nerve root rhizolysis surgery. The plaintiff improved a little following the surgery. He was taking Tramadol for pain.
Unremitting symptoms of pain
16 The plaintiff once again returned to work on 22 August 2016, undertaking 12 hours work a week spread over three days each of four hours duration. He performed light duties. He was reviewed by Mr Vellore on 24 August. He underwent a further MRI scan on 29 August 2016 that identified that the L5/S1 disc was mildly protruding and that there was evidence of post-surgical scar tissue. Mr Vellore diagnosed a recurrent right sided disc protrusion and the possible need for more surgery.
17 The plaintiff continued working light duties.
18 He persisted with Tramadol and Targin to manage his pain. He obtained more opinions in relation to possible further surgery. He was trialled on Lyrica and then Mobic. He consulted Mr Rogers, neurosurgeon, on 29 November 2016 who recommended rehabilitation and pain management.
19 The plaintiff saw Professor Bittar, neurosurgeon, on 4 January 2017 with ongoing low back pain and right sciatica, however, at that stage surgery was not recommended.
20 He had a CT-guided right S1 nerve root block injection on 7 March 2017 performed by Dr Weekes, Pain Specialist, but he said it left him feeling worse.
21 He was reviewed by Professor Bittar on 9 May 2017 who recommended revision surgery, and that was performed on 31 August 2017 by way of extending the prior L5/S1 partial hemilaminectomy, removing significant scar tissue and decompressing the S1 nerve root and performing a nerve root rhizolysis. The plaintiff said he did not feel that there had been any improvement in his symptoms.
22 On 8 September 2017 he commenced a week of rehabilitation at Donvale Rehabilitation Centre and subsequently regular out-patient physiotherapy but once again he said that his symptoms did not improve.
23 He underwent a further MRI scan on 20 November 2017 that showed some disc narrowing and protruding at the L5/S1 level together with a mid-line annular fissure. Dr Tan was prescribing Celebrex and Lyrica. His right leg symptoms seemed to have improved a little, but his back pain remained severe.
24 Professor Bittar referred the plaintiff to Dr Brasier, an occupational physician, whom he saw on 15 December 2017 and who in turn referred the plaintiff back to Dr Weekes on 17 February 2018. Dr Weekes administered bilateral sacroiliac joint injections and a week later administered three injections into the plaintiff’s back but which the plaintiff said aggravated his symptoms.
25 By about August 2018 the plaintiff was continuing to experience low back pain that went into his right leg. By now, he had increased the hours worked each week from 12 to 16 hours, although he appears to have to incrementally increased his hours beyond 16 hours a week. Despite having said that he was struggling to work, in about November 2018, he attempted to return to work full time “performing the work I did before I was injured. My job was modified so that I supervised about half the number of staff.”[9] He continued to experience low back pain with shooting pain down his right leg. Dr Tan was prescribing Naprosyn for pain relief.
[9]Exhibit P2, PCB 15.
26 In about February 2019, the plaintiff’s lower back pain intensified, and he experienced pain going down his right leg and foot. Dr Tan certified him unfit for work. The plaintiff has not returned to work since.
27 By the end of March 2019, Dr Tan was prescribing Prednisolone and Endone in response to the plaintiff’s complaints of difficulty with sleep because of the intensity of the pain he was experiencing.
28 In early April 2019, Dr Tan raised with the plaintiff the possibility of further surgery.
29 He returned to see Professor Bittar in June 2019 who recommended that he attend a pain management program and he discussed trialling a spinal cord stimulator and raised the possibility of a fusion of the plaintiff’s lower back.
30 The plaintiff returned to see Dr Weekes in August 2019 who also recommended a pain management program. He prescribed Norflex, however, the plaintiff said it was of no help.
31 On 6 January 2020 the plaintiff commenced a six-week pain management program with Precision Ascent.
The plaintiff’s primary contention
32 At the hearing of the application Mr Chancellor submitted that the “primary position is that there is no suitable employment for the plaintiff because even if he has a capacity to work for some hours with a lot of flexibility and the ability to lie down or rest or do whatever he has to do during the course of a working day, that that is not something that is – that a prospective employer in the realistic market is likely to accept.”[10]
[10] T 48-49.
What must the plaintiff prove?
The legal test and burdens of proof
33 The onus rests with the plaintiff to establish the existence of a relevant loss of earning capacity: Barwon Spinners v Podolark [2005] VSCA 33. Where a plaintiff calls credible evidence that establishes a prima facie case that he has no present capacity for suitable work, there is an evidentiary onus on the defendant to show the existence of “suitable employment”: Giankos v SPC Ardmona Operations (2011) 34 VR 120; PTC v Pitts [2007] VSC 356 at [17]. This was elaborated on in Wedlemichael v ID Sales & Repairs Pty Ltd [2019] VSCA 68 as follows:
“Similarly, the submission by the applicant that the respondent failed to discharge an evidentiary onus on it to raise as a real possibility the existence of particular types of employment available in the community which the plaintiff was capable of performing must be rejected.
First, as was said in Giankos,[11] such an evidentiary onus could only arise if the applicant had established a prima facie case that no suitable employment existed in relation to him. The present is not such a case.
[11](2011) 34 VR 120 at 144–5 [115].
Secondly, even if there was a relevant evidentiary onus on the respondent, it our view that onus was discharged by tendering the vocational assessment reports that were ultimately relied on by the judge in coming to her conclusion the applicant had failed to establish the necessary loss of earning capacity required by the Act.
The case before the judge was conducted by the applicant on the basis that he was totally disabled for all type of employment. It was not constituted on the basis that, in the alternative, he was partially disabled to the extent that satisfied the statutory loss of earning capacity test…”[12]
[12][2019] VSCA 68 at [78]-[82] per Priest AP, Beach and Niall JA.
34 The plaintiff has not been able to establish a prima facie case that no suitable employment exists in relation to him. Vocational reports relied on by the defendant put paid to that contention. The question moved on to whether or not the plaintiff established by evidence that the jobs identified by the defendant are not “suitable employment” as that expression is understood both as expressed in the Act and explained in law.
The medical evidence of restrictions and limitations as to a permanent loss of earning capacity
35 It was not disputed that the plaintiff has a permanent incapacity for performing work in his pre-injury employment as a forklift driver. Professor Bittar reported on the plaintiff’s history that included him having been rehabilitated sufficiently after his injury to increase his work hours with his employer to eight hours a day, five days a week as a forklift driver.[13] The return to work and what it entailed was expanded upon by Dr Slesenger who in his report dated 24 April 2019 wrote:
“Mr Zaa-Thang advised that after the second surgery, he was able to return to work, performing modified duties, working restricted hours. He advised that his hours increased up to 3 hours a day, 5 days a week. He remained at work performing light pick packing and light assembly tasks with a 2-3-kg lift limit.
He advised that in early 2019, changes were made to his return to work plan. He was requested to return to pre-injury hours and to return to forklift driving duties. He did not return to pallet stacking and ceased the assembly tasks. He advised that he spend up to 8 hours a day forklift driving and this aggravated his symptoms, resulting in a significant deterioration and cessation of employment on 26 February 2019. He has not returned to work since.”[14]
[13] Exhibit P8, PCB 49.
[14]Exhibit P10, PCB 60.
36 Therefore, it is plain enough, that the plaintiff’s efforts at a return to full time hours and the requirement for him to perform his pre injury work duties proved unsustainable in a reasonably short period of time between about November 2018 and April 2019.
A summary of the evidence recommending hours able to be worked by the plaintiff
37 The only medical opinion put into evidence at the hearing of the Application that plaintiff has no work capacity was that of Dr Tan, but his opinion is open to scrutiny because of some discordance between his most recent certificate of capacity and his written medical opinion dated 28 January 2020 about which I will comment further later in these reasons.
38 In June 2019, Professor Bittar considered that the plaintiff had a “theoretical ability to work up to 24 hours per week in a very sedentary role.”[15]
[15] Exhibit P8, PCB 51.
39 Dr Weekes thought that the plaintiff is “Most likely going to struggle to obtain and maintain employment on a reliable and consistent basis.”[16]
[16] Exhibit P8, PCB 53.
40 Dr Slesenger made two reports at the request of the plaintiff’s solicitors following on an examination of the plaintiff. In the first report dated 24 April 2019,[17] he wrote of the plaintiff’s limited capacity to read and write in English with poor spelling and grammar although he was capable enough in Burmese. Other limitations he identified included poor computer skills. He did not believe that the plaintiff could return to unrestricted pre-injury duties, working his pre-injury hours. In addition, and taking into account his background, age, injuries, his current symptoms and functional limitations, education, skills, work experience and place of residence, his computer skills and his literacy skills, and his past employment history, Dr Slesenger thought that the plaintiff was unlikely to be able to return to work in a role for which he has suitable training and experience on a consistent and reliable basis.
[17] Exhibit P10, PCB 56-66.
41 Dr Slesenger’s second report dated 5 January 2020[18] addressed a number of relevant issues, including the prognosis for the plaintiff’s lumbar spine and his capacity for suitable employment. He wrote that due to the plaintiff’s lumbar spinal impairment alone he was unlikely to see a significant alteration in his presentation into the foreseeable future. He mentioned that the plaintiff was undergoing a pain management program, and whilst he anticipated it would result in some benefits in the plaintiff’s adaptation to his disability, nevertheless, he thought it just as likely he would be left with residual lumbar spinal and right leg impairment that would continue to impact on his functional capacity and his ability to engage in occupational, domestic and recreational activities. He considered that there was a risk of deterioration due to progression of degenerative disease of the lumbar spine, but he deferred to an expert in the relevant field. Dr Slesenger also noted a number of other negative prognostic indicators including the plaintiff’s current job detachment and, taking the evidence as a whole, thought that whilst there may be some variation in his symptoms in the course of the next 18 to 24 months, his symptoms were unlikely to vary significantly.
[18] Exhibit P10, PCB 67-77.
42 Dr Slesenger wrote that after taking into consideration the plaintiff’s age (and I note that he plaintiff is a relatively youthful 30 years of age), his current symptoms and functional limitations, his computer skills, his past employment history, his qualifications, his literacy limitations and the variable and unpredictable nature of his symptoms, he did not anticipate the plaintiff able to return to work, performing suitable alternative duties.
43 When Dr Slesenger was asked to consider if the plaintiff was presently capable of undertaking the employment of a Checkout Operator (within his local ethnic community) and Data Entry Operator, these being the two positions identified in a “Nabenet Vocational Assessment” report dated 21 December 2017 and had been identified as “suitable employment” by Dr Simon Journeaux in his report dated 16 January 2020,[19] Dr Slesenger considered that, “in his experience” the proposed duties of a Checkout Operator required operators to sit or to stand for prolonged periods and to manoeuvre customer purchases across a register and that the job demands of such a position also required lifting of weights of up to 16 kg. Therefore, he considered it unlikely for the plaintiff to be able to return to work in this role consistently and reliably.
[19] Exhibit D1, DCB 37-52.
44 As to the job of Data Entry Operator, Dr Slesenger mentioned that the plaintiff had no relevant experience in such a role, and he did not have the computer skills to perform the role. He also anticipated that the plaintiff would likely have difficulty sitting at a workstation for prolonged periods of time and so he did not regard the plaintiff as likely to be able to return to work in that role on a consistent and reliable basis.
45 Dr Slesenger also reported on the variable nature of the plaintiff’s symptoms which he wrote were aggravated by cold weather. He reported that the plaintiff’s symptoms were prone to deteriorate spontaneously. He identified that one way the plaintiff managed his symptoms was by adjusting his posture and by lying down two to three times a day for up to one to two hours and, therefore, he considered it unlikely that an employer could accommodate these restrictions.
46 Dr Weekes in a report to the plaintiff’s solicitors dated 8 November 2019,[20] noted that he had first reviewed the plaintiff on 11 March 2017 and performed a right S1 nerve root block. He next reviewed the plaintiff on 29 March 2017 and the plaintiff’s account of pain appeared to have worsened. He made no relevant contribution to the question of the plaintiff’s work capacity or of a capacity for suitable employment. Of course, in the period of time since his examinations, the plaintiff did make returns to work.
[20]Exhibit P9, PCB 52-54.
47 Dr Rahgozar provided the defendant with two reports. The first report dated 18 January 2018 was not tendered but a supplementary report dated 29 March 2018 was.[21] Dr Rahgozar was furnished with a copy of the Nabenet Vocational Assessment report dated 22 December 2017 and a Return to Work Plan prepared in February 2018. Dr Rahgozar thought that the plaintiff exhibited a capacity for gradually increasing the hours of performance of such duties and that he could “safely and efficiently and without risk of aggravation of his condition perform the following duties safely and efficiently without risk of aggravation of his condition;
[21]DCB 34-36.
· Delivery Driver (Light items)
· Shuttle Bus Driver,
· Checkout Operator (within his local ethnic community)
· Data Entry Operator”.[22]
[22]DCB 35.
48 It is worth noting that at the date of Dr Rahgozar’s report the plaintiff was under rehabilitation and was engaged in return to work programs with his employer including, as I have mentioned, his return to full time duties but that ultimately proved unsustainable.
49 Dr Journeaux examined the plaintiff on 11 January 2020 and provided a report of examination and findings to the defendant dated 16 January 2020.[23] He did not believe that the plaintiff could perform any of the jobs identified in the Recovre report dated 2 April 2019,[24] which were those of Product Assembler, Packer, Despatch Packer, Forklift Driver, Warehouse Clerk (with retraining) and Courier. However, he believed the plaintiff could perform the jobs of Checkout Operator and Data Entry Operator that were identified as suitable employment in the Nabenet Vocational Assessment report, so long as the plaintiff is “pain tolerant and motivated”.[25] He cautioned, however, that in his opinion the “worker does have a work capacity but at a somewhat limited level and most likely would only be suitable for part time work in a sedentary role.”[26]
[23]Exhibit D1, DCB 37-52.
[24]Exhibit D4, 135-165.
[25]Exhibit D1, DCB 49.
[26]Exhibit D1, DCB 50.
50 Dr Yong is Specialist Occupational Physician who examined the plaintiff and reported his findings on examination to the defendant in a report dated 30 January 2020.[27] Dr Yong considered that the plaintiff’s prognosis of his back condition should not be “unreasonable with further medical treatment”[28] and he noted the previous recommendation for a fusion by the plaintiff’s surgeon. He thought that in the interim, the plaintiff should be participating in an activity-based recovery program focusing on performing a range of active physical therapy modalities, whilst avoiding aggravating factors. He considered that the plaintiff should do the following:
[27] Exhibit D2, DCB 63-78.
[28] Exhibit D2, DCB 71.
·a daily walking program;
·continuing with the multidisciplinary pain management program;
·consideration of an independent exercise program in a gym or swimming pool;
·performing domestic tasks at home;
·aiming to be as active as possible within the limits of pain.[29]
[29]Exhibit D2, DCB 72.
51 After taking into account the plaintiff’s back condition only and ignoring the psychological comorbidity, and noting the plaintiff’s current diagnosis, current functional capacity, the period of time elapsed since the surgery and the requirement to participate in a graduated activity-based recovery program, he believed that the plaintiff was able to perform tasks within the following restrictions:
·Avoiding repeated bending and twisting of the back.
·Avoiding repeated firm pushing and pulling tasks.
·Avoiding lifting more than 5 kg on a repeated basis.
·Varying posture regularly between sitting, standing and walking.
·A reduction in working hours.[30]
[30] Exhibit D2, DCB 72. It is unclear what Dr Yong intended by this recommendation and if he meant a reduction in his preinjury hours or his modified hours that he was working before he ceased work.
52 Dr Yong considered the plaintiff to have a capacity to perform tasks within the restrictions he outlined. He had been provided with the Vocational Assessment report by Nabenet completed on 21 December 2017 that described the following employment options:
•Truck Driver
•Delivery Driver (Light items)
•Shuttle Bus Driver
•Checkout Operator (within his local ethnic community)
•Data Entry Operator[31]
[31]Exhibit D2, DCB 73.
53 Of the first three jobs, Dr Yong dismissed them as amounting to suitable employment. As to the position of Checkout Operator, in similar vein to Dr Slesenger’s, but in less determinative language, Dr Yong expressed concern that the weights involved may be excessive and, therefore, its suitability would warrant an individual assessment.
54 With respect to the Data Entry Operator role, the duties he described included the following:
·Entering data and codes required to process information.
·Retrieving, confirming and updating data in storage and maintaining records of data input.
·Taking verbatim records of proceedings in rapid shorthand using computerised equipment and shorthand-writing machines.
·Transcribing information recorded in shorthand and on sound recording equipment and proofreading and correcting copy.[32]
[32]Exhibit D2, DCB 75.
55 Dr Yong assessed the position as requiring minimal manual handling. He regarded the job as meeting his recommended restrictions and suitable to perform. He did, however, note that because of the plaintiff’s description that he possessed poor computer-based skills, he would require further retraining to assist him to return to this type of role. Thus the plaintiff was not currently equipped with a necessary skill required for the job.
56 Dr Yong was also asked to address the job of Warehouse Clerk (with retraining) that was one of the jobs identified as “suitable” in the Recovre report. After addressing the functional requirements for that job identified by Recovre in its worksite assessment, he assessed the role as complying with the plaintiff’s recommended restrictions and, therefore, regarded it as suitable to perform.
57 Dr Yong added a caveat, that the plaintiff should commence working 16 hours a week being four hours a day, four days a week with the aim to return the plaintiff “back to pre-injury hours over a 6 to 9 – month period.”[33]
[33]Exhibit D2, DCB 77.
The plaintiff cross-examined
58 The plaintiff confirmed the contents of his affidavit and his reference that he could not drive for too long and nor could he sit, stand and walk for too long. He also confirmed it to be true that he experienced pain if he sat or stood and that he had a need to constantly alter his position so as to obtain some pain relief. His estimated his tolerance for standing was in the order of about 10 minutes and he said that: “Like if I sit for too long then I’ve-I’ve gotta get up myself, and if I stand for too long here, maybe like more than 10 minutes I won’t be able to walk again”.[34]
[34]T 11.
59 He was asked about comments attributed to him by the authors of vocational assessment reports including that he was able to sit for approximately 15 to 20 minutes. He agreed that was the case. He agreed too that he could stand for approximately 10 to 15 minutes at a time and walk for 10 to 15 minutes at a time. He accepted that because he can sit for 15 to 20 minutes at a time he therefore can drive for 15 to 20 minutes.[35] He recounted an occasion when he was driving back from the city from a medical examination when his right leg went numb and he lost all sensation in it, and he needed to pull up, which he found “very scary”[36]. He agreed that if he drove for longer than 15 to 20 minutes he would need to get out of the car to stand and stretch but that after a few minutes of doing so he would be able to get back into the car drive again for a time.[37]
[35]T 13.
[36]T 13.
[37]T 13.
60 He agreed that when he was examined by Dr Slesenger, he was not taking any medications[38] and that this remained the position.
[38]T 14.
61 The plaintiff accepted that he can type into a computer and is able to use a mouse and can send and receive emails. He said he can surf the internet and use Google.[39] He said, however, he cannot use Microsoft Word, and said he was unaware of it.[40] The capacity of the plaintiff to perform rapid shorthand was not addressed.
[39]T 14.
[40]T 14.
62 The plaintiff was directed to the Recovre Vocational Assessment report of March 2019[41] and the attribution to him by the assessor as possessing “sound English literacy skills.”[42] The plaintiff said he speaks English and he could generally understand what is being asked of him. He agreed he could understand counsel’s questions asked of him.[43] However, he disputed the further observation by the vocational assessor that he could use Microsoft Word.[44] He said he does not own a computer and what browsing of the internet he does is undertaken on his smart phone.
[41]Exhibit D4, DCB 135-165.
[42]Exhibit D4, DCB 138
[43]T 15.
[44]T 15.
63 He agreed with counsel for the defendant that one method of managing his pain was by alternating between sitting and standing. He also agreed with counsel that it was a fair observation that he was likely capable of performing a job where, all other things being equal, he was not required to sit or stand for prolonged periods and could sit and stand as he wished.[45]
[45]T 16.
64 The plaintiff was taken by counsel to the jobs relied on as suitable employment and identified in the Recovre Vocational Assessment report of “Warehouse Clerk with retaining”- a job with responsibility for data entry and administration relating to the delivery of goods, including booking transport slots, delivery logistics and customer contact and the preparation of delivery paperwork.[46] The report identified that workers spend the bulk of the working day completing computer-based tasks within an office and entering data into various systems and monitoring and responding to email traffic. When it was suggested to the plaintiff that subject to the provision of some job training, he would be capable of monitoring email traffic, he agreed that he could.[47] He also agreed that to the extent the job involved typing information into a computer he could perform that task.[48] When told that he would work at a computer workstation with a desk height of 720 mm which despite the workstation currently being set up as a seated work station, had the option to install a sit stand desk, he said he believed that was work of a type he could perform.[49]
[46]Exhibit D4, DCB 162.
[47]T 17.
[48]T 17.
[49]T 17.
65 Furthermore, and to the extent it was a necessary concomitant of the job to move about an office environment and, for example, to use a photo copier and walk back-and-forth, he accepted he could do that task.
66 To the extent bilateral finger movements were required for performing keyboard activities at or near to a constant basis and whether he could type on a keyboard using both hands, the plaintiff said that he could, but he was mainly one handed.
67 To the extent he would need to check stock levels and visually inspect stock levels within a warehouse environment and that this might involve walking in the vicinity of 300 metres per trip up to three times a day, the plaintiff agreed that this appeared to be within his tolerances.[50]
[50]T 18.
68 The job included a small lifting component by way of picking up binders and he agreed that as that task was described, it was within his tolerances.[51]
[51]T 18.
69 The plaintiff, however, did not agree that he could perform the job full time but accepted that something in the order of 24 hours a week sounded reasonable.[52]
[52]T 19.
70 The plaintiff was next directed to the Data Entry job.[53] This job was described as sedentary and entailed sitting. However, it was pointed out to the plaintiff by counsel for the defendant that the job permitted an ergonomic assessment to be undertaken, and if a sit and stand desk was provided, he would be permitted to undertake the data entry by alternating sitting and standing. When he was asked if that proved to be the case and if he was able to take breaks to manage any flareups of pain he might encounter he could otherwise perform the work, he said he thought he could.[54] The tasks of the job also included that taking “verbatim records of proceedings in rapid shorthand using computerised equipment and short hand writing machines” and transcribing information recorded in shorthand and on sound recording equipment, and proof reading and correcting copy. I had no evidence on the plaintiff’s ability or capacity in such skills and they were not addressed by the author of the report or by the specialist opinion authors relied on by the defendant.
[53]Exhibit D3, DCB 132.
[54]T 20.
71 I referred earlier to Dr Tan who furnished the plaintiff with certificates of capacity, some of which were contained in the Defendant’s Court Book. I allowed the plaintiff belatedly to add to the evidence in support of his claim, and under objection from counsel for the defendant, by way of a certificate from Dr Tan dated 4 February 2020 for the period 3 February to 1 March 2020.[55] Mr Czarnota in response to the tender of this certificate, put into evidence certificates for the period 11 October 2018, 25 February 2019, 18 March 2019 and 30 April 2019. He submitted that all that could be said of the entirety of the certificates is that whereas, the late tendered certificate is that the plaintiff has no capacity for employment, others have certified a lack of capacity for pre-injury employment; and that there was a gap where no certificates were given until the period covered by the late tender by the plaintiff. He contended that “effectively there has not been a continuous certification of unfitness from the GP for about nine, ten months, Your Honour, and that is all I would say about it”.[56]
[55]Exhibit P6, PCB 31-36.
[56] T 48.
72 Moreover, in his report dated 28 January 2020,[57] that is, preceding the date of issue of the late tendered certificate, but by only a few days, Dr Tan wrote:
“In my opinion [the plaintiff’s] back injury is unlikely to change in the near future. He will not be able to return to his normal duties as a forklift driver. However, I do believe he is capable of doing light duties with flexible hours and he is keen to do so…”[58]
[57]Exhibit P6, 35-36.
[58]Exhibit P6, 35-36.
Capacity
73 The recent certificate from Dr Tan is not determinative, and I am satisfied overall, that the preponderance of the medical evidence is that the plaintiff does possess a work capacity. The question becomes whether the plaintiff has established that he lacks the ability to undertake suitable employment and to the extent that a claim for loss of earnings is made good or not.
Suitable employment
74 Even though Dr Yong’s opinion is that the jobs of Warehouse Clerk (with retraining) and Data Entry Operator comply with his suggested recommended physical restrictions, that is but one consideration among many, that informs the principle of “suitable employment”. The question whether “suitable employment” exists is not determined exhaustively by a finding that the plaintiff has a physical capacity for the indicium of particular jobs, but instead, the extent to which he has now, and might in the future, be capable of earning income from personal exertion in “suitable employment”.
75 The definition of “suitable employment” contained in the Act, commences by recognising that it must be “employment in work for which the worker is currently suited – having regard to the following – the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker”.[59]
[59]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 3.
76 Other non-exhaustive factors for consideration referred to in the definition of “suitable employment” for which consideration may be required include:
·the nature of the worker's pre-injury employment
·the worker's age, education, skills and work experience
·the worker's place of residence
·any plan or document prepared as part of the return to work planning process
·any occupational rehabilitation services that are being or have been, provided to or for the worker.[60]
[60]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 3.
77 Therefore, when regard is had by me to more than the plaintiff’s physical capacity to do tasks demanded by a particular job but in addition to whether he has a capacity for “employment in work for which the worker is currently suited …” I am satisfied the answer is “no”. My reasons follow.
Not “suitable employment”
78 The two positions relied on by the defendant are full time jobs. The defendant submitted that the plaintiff will soon have a reasonably likely capacity to undertake full time hours or at least greater than 24 hours.
79 The defendant’s submissions recognised naturally enough, that if I am satisfied by the medical opinion of Dr Yong that the plaintiff should reasonably be anticipated to reach a capacity to return to pre-injury, that is to say, full time hours of work[61], in the job of Warehouse Clerk, or Data Entry Operator within six to nine months,[62] then his claim for loss of earnings would necessarily fail because he would not have been capable of having proved a permanent loss of capacity to earn at least 40% of his earned or capable of earning figure.
[61] Dr Yong reported that the plaintiff worked Monday to Friday regular hours plus three hours per day overtime and an additional six hour shift on Saturdays. Exhibit D2, DCB 67.
[62]Exhibit D2, DCB 77.
80 In contrast to Dr Yong’s likely prognosis that the plaintiff should reasonably be anticipated to return to pre-injury full-time hours of work, Dr Slesenger in his report dated 5 January 2020,[63] said that:
“Based on the lumbar spinal impairment alone, I am of the opinion that [the plaintiff] is unlikely to see a significant alteration in his presentation into the foreseeable future. He is undergoing a pain management program and I anticipate that there will be some benefits in his adaptation to his disability. Nevertheless, I anticipate that he is likely to be left with residual lumbar spinal and right leg impairment that will continue to impact on his functional capacity and his ability to engage in occupational, domestic and recreational activities.”[64]
[63]Exhibit P10, PCB 67-77.
[64]Exhibit P10, PCB 75.
81 On balance, I consider Dr Slesenger’s reasoning concerning the likely future progress of the plaintiff more persuasive than Dr Yong’s analysis. However, I hasten to note, that a judgment regarding the plaintiff’s capacity for hours capable of being worked in suitable employment is to be arrived at by having regard to all of the evidence including, if relevant, any opinion formed by me of the plaintiff in the course of the giving of his evidence. The determination of the question is not to be made merely by preferring one medical expert opinion to another without explanation, but nonetheless, I find that Dr Slesenger’s opinion better accords with the conclusions I have reached having considered all of the evidence. My findings follow.
82 Firstly, I am satisfied that the plaintiff continues to present with ongoing lower back pain with pain radiating into his right leg some four years after his work injury.
83 Secondly, the plaintiff has undergone two surgical interventions. Although he has elected to not consider a fusion at present, it is something that has been recommended to him by Professor Bittar, who nonetheless has appropriately cautioned the plaintiff of the expected levels of improvement that would flow from the procedure.
84 Thirdly, despite surgical intervention and pain management treatments including multiple injections, the plaintiff remains impacted in his enjoyment of life (recognised and conceded by the defendant by way of pain and suffering).
85 Fourthly, the plaintiff proved himself committed to returning to work after his injury and tried full time work hours which he managed to do for a short period of time before the pain he suffered required him to surrender his employment altogether. I am satisfied that the plaintiff is a genuine and hardworking young man.
86 Fifthly, Dr Weekes in his report dated 8 November 2019[65] expressed the opinion that he thought “it highly likely he will continue to suffer pain and disability for the foreseeable future”.[66] I am satisfied that this prognosis from November 2019 remained apt at the date of hearing.
[65]Exhibit P9, PCB 52-54.
[66]Exhibit P9, PCB 53.
87 Sixthly, I am not satisfied there is a sufficient cogent and contrary path of reasoning to suggest the plaintiff is on a trajectory to return to a capacity for pre-injury full time hours.
88 Seventhly, the opinion expressed by Professor Bittar,[67] and upon which defendant placed some favourable reliance should, in my judgment, be understood in light of his language, which was that the plaintiff has a “theoretical capacity”[68] to work up to 24 hours a week in a very sedentary role.
[67]Exhibit P8, PCB 47-51.
[68]Exhibit P, PCB 49.
89 Eighthly, I accept the plaintiff’s evidence, and reported on by Dr Slesenger, that there are occasions of a day when the plaintiff is required to lie prostrate on the ground two to three times for up to one to two hours to alleviate his experience of back pain. I accept also that the plaintiff can be beset by pain spontaneously. These considerations also inform my judgment that the plaintiff lacks realistic prospects of sustainable and reliable employment in the identified jobs.
90 I am satisfied the plaintiff suffered an injury that has caused an inability to return to work in employment – that is in his preinjury employment or in suitable employment. I am satisfied for the reasons I have expressed concerning the necessary modification the plaintiff must make on a daily basis for extended periods of time to manage his pain that he, therefore, has no ability to return to work in either job or return to work in a meaningful way, as the Court of Appeal said in Richter v Driscoll[69] adopting King CJ in Philmac Pty Ltd v Asti,[70] “as a settled or established member of the wage earning workforce”.[71] In Richter v Driscoll the Court also said that one permissible manner in which to determine “whether a worker has ‘no current capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances - these including the injury caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment but to work in that employment as a settled member of the workforce”.[72]
[69][2016] VSCA 142.
[70](1980) 26 SASR 213 at 218.
[71][2016] VSCA 142 at [70] per Ashley and Kaye JA.
[72][2016] VSCA 142 at [95] per Ashley and Kaye JA.
91 I was referred in the course of addresses to Harris v DJD Earthmoving Pty Ltd[73] in which the trial judge refused the plaintiff leave to proceed for pecuniary loss damage. The Court said that it is incumbent on a judge in a serious injury application (as opposed to the conduct of a statutory benefits application):
“to demonstrate by his statement of reasons that he had considered in detail what, if any, specific job or jobs Mr Harris might, in the foreseeable future, be able to do on a regular and consistent basis, allowing for such improvement as might be thought likely….Given the evidence, the arguments (on both sides) and the findings in this case, we consider his Honour needed to identify at least one particular full time job which could be regarded as ‘suitable employment’ for Mr Harris and which Mr Harris has failed to show would be beyond him for the foreseeable future”.[74]
[73][2016] VSCA 188.
[74][2016] VSCA 188 at [49] per Warren CJ and Cavanough AJA.
92 I am satisfied that although the defendant identified the positions of Data Entry Operator and Warehouse Clerk (with retraining) and, so, in that sense identified the existence of real jobs. I am also satisfied that the plaintiff has shown they are beyond him for the foreseeable future and thus do not amount to “suitable employment” for which he has a capacity.
93 Neither of the jobs relied on by the defendant are part time jobs and it was not suggested by the defendant that the plaintiff would be able to commence work in the nominated positions for limited hours or that the jobs were ones that he could commence and with progression increase his number of hours to a point that equated to full time hours or at least as far as the threshold for a loss of earnings claim is concerned.
94 I have in any event already concluded that the plaintiff has no more than a theoretical capacity for work in suitable employment of up to 24 hours a week. I do not accept the opinion of Dr Yong that the plaintiff should be able to achieve full time hours soon. Nor do I accept that because the plaintiff could perform the duties of the two positions described that the jobs amount to suitable employment. It would require me to ignore or to reject the plaintiff’s evidence, about which he was not challenged, of a need to lie down on his back on perhaps more than one occasion each day and in each instance for at least an hour. Notably both Dr Journeaux and Dr Yong addressed the plaintiff attempting a graduated return to work. In particular, Dr Yong’s opinion is one that entailed the plaintiff commencing on a part time basis four hours a day and four days a week and then progressing over the next six to nine months to preinjury hours. The defendant did not identify the existence of jobs that would accommodate such progression.
95 The defendant submitted that it was relevant that Dr Tan addressed the need for light duties and flexible hours but had not placed restrictions such as full time work or part time work on the plaintiff but only that the hours worked would need to be flexible. The description by Dr Tan substantially answers itself on this point but nonetheless the omission to do so by the plaintiff’s general practitioner is one thing but such an omission is not positive proof of his agreement of actual hours to be worked.
96 Professor Bittar in his report[75] said:
“In my opinion, he does have the theoretical capacity to work up to 24 hours per week in a very sedentary role, if this was available …[76]
[75]Exhibit P8, PCB 47-51.
[76]Exhibit P8, PCB 49.
97 However, Professor Bittar added later on that:
“In my opinion, he could work up to 24 hours per week in a very sedentary role, however I doubt that he would be able to find such a role taking into account his age, education, skills, work experience, limited English, as well as incapacity and restrictions arising from his injury. He would need to be able to change postures frequently an alternate between sitting and standing…If he were able to find such a role, he could work up to 24 hours per week on a consistent, sustained and reliable basis”.[77]
[77]Exhibit P8, PCB 51.
98 The defendant relied on Professor Bittar’s opinion that if such a job could be found that met the required framework then the plaintiff could work up to 24 hours per week on a consistent, sustained and reliable basis. Understandably, the defendant submitted that it was Professor Bittar who provided the very architecture of the physical capacities of the plaintiff, and that in terms of meeting and complying with them, the jobs identified by the defendant did just that. Professor Bittar said that the plaintiff would need to avoid lifting more than very light objects and the defendant’s counsel pointed to the job position that described such lifting as might be required to be only very light weights and within his recommended tolerances as well as the plaintiff’s evidence that he could perform the task of lifting as when it was put to him in cross-examination. As to the need identified by Professor Bittar of avoiding bending and twisting, the defendant pointed to the absence of any indication that the job required bending or twisting.
99 There might be thought an internal contradiction existed between Professor Bittar’s comments that the plaintiff has a “theoretical” capacity of working up to 24 hours and an “actual” capacity to work up to 24 hours on a consistent, sustained and reliable basis. However, overall, I do not think the differences in expression adopted by Professor Bittar are fundamentally contradictory. The view that the plaintiff “could work up to 24 hours” is expressed to be necessarily constrained by various considerations Professor Bittar considered important, and these included, the plaintiff’s “incapacity and restrictions arising from his injury”. Although Professor Bittar did not advert to the plaintiff needing to lie down for hours of a day, Dr Weekes did. Having accepted that account of the plaintiff’s condition, the incapacities and restrictions mentioned by Professor Bittar, become even more telling in accurately characterising the reality of the plaintiff’s work capacity in suitable employment as “theoretical” and not actual or realistic.
The Loss of Earnings Exercise
Evidence of the applicant's gross income and pay records
100 In the event I am wrong in my finding that the plaintiff established that the jobs do not amount to “suitable employment” and I should have found he has a real capacity to perform suitable employment in the foreseeable future, up to, but for no more than 24 hours, then the question becomes if he would have a loss of earning capacity. In my judgment, he would.
101 On the hearing of the application, the plaintiff relied on a “Summary of Taxation” of his gross earnings for the financial years ended 30 June 2013 to 30 June 2019.[78] Relevantly, the summary revealed that the plaintiff’s gross income for the financial years ended 30 June 2008 to 30 June 2011 was as follows:
[78] Exhibit P12, PCB 83.
Year ended
2013 $43,686
2014 $40,403
2015 $46,729
2016 $57,576
2017 $42,296
2018 $33,742
2019 $28,580[79]
[79]Exhibit P12, PCB 83.
102 At the date of the hearing the worker must prove he has a loss of earning capacity of 40 per centum or more. In Hayhill Pty Ltd v Hodge [2006] VSCA 194, it was said that the measurement of the claimed loss of earning capacity, as prescribed 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').
103 In Acir v FrossterPty Ltd[80], 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 current statutory language not being different). These are:
·“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.”[81]
[80] [2009] VSC 454. Subsequently endorsed by the Court of Appeal in the Herald & Weekly Times v Jessop [2014] VSCA 292
[81][2009] VSC 454 at [171]-[174].
104 In Herald & Weekly Times v Jessop[82], the Court of Appeal 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.”[83]
[82] [2014] VSCA 292.
[83][2014] VSCA 292 at [53] per Neave, Kyrou JA and Ginnane AJA.
105 The facts of each case and the manner in which the worker presents his case will influence which factors are relevant to the application of s 325 (2) (f) (ii) of the WIRCA and the relative importance of those factors.
106 The actual hours worked by a worker and his actual earnings are not always the best evidence of his earning capacity for the purposes of sub-para (ii) of s 325(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 summarised the position as follows:
“In most cases, the inquiry will be relatively simple; the wage 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'…”[84]
[84][2009] VSC 454 at [166].
107 Mr Chancellor submitted that the figure which most fairly represents the plaintiff’s “earned or capable of earning” figure is the highest figure from the three years before and after his injury, and by reference to the plaintiff’s taxation summary, that is a figure of $57,576. Sixty per cent of that figure, or, the forty per cent threshold for a loss of earning capacity would, therefore, equate to $34,545. The plaintiff further submitted that the “gross income from personal exertion” that the plaintiff was capable of earning within the three years after the injury, and by allowing for a small increase, could fairly be settled upon as in the gross sum of $60,000, with the forty per cent threshold, therefore, amounting to a gross annual amount of $36,000.
108 The defendant contended, too, that the amount was $57,576 based on the 2016 tax year or $664.35 gross per week, however, the defendant made no allowance for any increase in the three years after injury.
109 I am not satisfied by the plaintiff’s submissions that I should adopt a generalised assumption of a 3% increase in the earnings the plaintiff was capable of obtaining in the three years after the injury. There is no evidentiary basis for the submission. Therefore, I have adopted as the appropriate sum that best represents the income the plaintiff was capable of earning within the three years after the injury the sum of $57,576, bearing in mind that s 325(2)(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. Therefore 60% of that figure is $34,546 annually or a gross weekly amount of $664.35.
The disputed wage rates for the two positions
110 The was no unanimity between the parties of the identification of hourly rates for the position of Warehouse Clerk identified in the Recovre report. I will address the various scenarios that might admit from the figures produced in evidence.
111 The Recovre report identified a job of Warehouse Clerk in Springvale working 6.30 am to 2.30 pm job Monday to Friday (ie 40 hours a week) with a gross annual salary of $60,000[85].
[85]Exhibit D4, DCB 162.
112 The Recovre report also identified that the average weekly gross wages for a Warehouse Clerk to be in the amount of $1,100[86].
[86]Assuming under this scenario average weekly wages are calculated on a 38 hours of ordinary time
113 I do not think it is as simple a matter as taking a fulltime job with an annual wage of $60,000 and assuming that the job could be performed at something less than full time hours or that an hourly part time rate would be merely 1/38th or 1/40th of the annualised wage for the job. However, if it were considered permissible to do so, and that such an analysis was reliable evidence, then by reference to average weekly wage rates for a Warehouse Clerk of $1,100, this would equate to an hourly rate $28.95 (based on a 38 hour week) and $27.50 (based on a 40 hour week). For a 24 hour working week capacity (based on the opinion of Professor Bittar[87]) the plaintiff would therefore earn by reference to:
[87]Exhibit P8, PCB 49.
Average wages: (based on a 38 hour week job) $695.00 per week
Average wages: (based on a 40 hour week) $660.00 per week
114 As can be seen from the average wages scenario for a Warehouse Clerk job of 38 hours, the plaintiff’s earnings would exceed the threshold and it would only be in the event that the average wage rates for a Warehouse Clerk’s job was derived for a 40 hour week that the plaintiff would meet the threshold requirement. However, average weekly earnings are normally calculated based on a 38 hour week and, therefore, if that be so, the plaintiff would have failed to satisfy the loss of earnings criteria.
115 By reference to the identified job of Warehouse Clerk in Springvale, referred to in the Recovre report, on an annual salary of $60,000, and the hours of work for the job being 40 hours, the hourly rate would be $28.85 but if it were measured on a 38 hour week, the hourly rate would be $30.37 per hour. The calculations would be as follows:
a) For a 24 hour working week (based on Professor Bittar[88]) the plaintiff would earn:
[88]Exhibit P8, PCB 49.
I. $692.40 (based on a 40 hour week)
II. $728.88 (based on a 38 hour week)
116 Once more, and under both scenarios, the plaintiff would not meet the necessary threshold for a loss of earnings claim.
117 An hourly rate for a Data Entry Operator job was identified in the Flexi Personnel Earnings Report obtained by the plaintiff.[89] The Flexi Personnel Earnings Report specified the hourly rate for a Data Entry Operator pursuant to the “Clerks – Private Sector Award 2010” to be $22.70 per hour.[90]
[89]Exhibit P11, PCB 78-80.
[90]Exhibit P11, PCB 78.
118 Mr Chancellor submitted that the calculations provided by the defendant for the identified job of Warehouse Clerk were unrealistic, because apart from anything else, they were annualised wages for full time work either as a 38 hour week referable to average wages or a 40 hour week for the annual salary of $60,000 for the job in Springvale.
119 Mr Chancellor submitted that a surer guide was to take the hourly rate identified in the Flexi Personnel Earnings Report for the Data Entry Operator job of $22.70 per hour and derived from the “Clerks – Private Sector Award 2010” or $23.12 (Level 2 entry rate). Mr Chancellor submitted that given the plaintiff’s lack of requisite experience in the Warehouse Role, and that he would need to work on a part time basis according to the opinion of Professor Bittar (whose opinion I have accepted), that a base Award Rate or a Level 2 employee rate was a fairer guide than the annual full time wage identified in the Recovre report. Therefore, the position that would flow would be as follows:
i. A base Award rate of $22.70 per hour x 24 hours = $ 544.88 per week or $28,329 per annum
ii. A Level 2 Award rate of $23.12 per hour x 24 hours = $ 554.88 per week or 28,854 per annum
120 As can be gleaned, both sets of figures are below the threshold of $34,546 to demonstrate a greater than 40% loss of earning capacity.
121 I have not engaged in a like process for the position of Data Entry Operator because the same calculations as relied on by Mr Chancellor for the Warehouse Clerk would derive for it (the award rates in fact relied on by Mr Chancellor for use in the Warehouse Clerk role being those award rates utilised in the Flexi Personnel Earnings Report for the Data Entry Operator job).
Preferable wage rates
122 On balance, and after taking into account that any work would be by way of part time hours, and that that the plaintiff would come to a return to employment without requisite experience in either of the two jobs identified by the defendant, had it been necessary for me to determine the matter, I would have adopted the submission of Mr Chancellor, and utilised the award rates as the fairer and surer guide in determining an hourly rate for work and this is especially the case when regard is had to the two jobs being paid as full time positions and no part time jobs having been identified.
Summary and Conclusion
123 For the reasons given, I am satisfied first, that the plaintiff has proved that the he does not have a capacity for suitable employment and the gross income which the plaintiff is capable of earning in suitable employment, therefore, is $ nil.
124 Second, in the event I am wrong in my finding and the plaintiff should have been found by me to have a capacity for suitable employment, then based on my finding that the plaintiff’s capacity for the foreseeable future is not greater than 24 hours, and based on my analysis of likely rates of remuneration, he would have otherwise established the threshold for a permanent loss of earnings claim based on $34,546.
125 The plaintiff is accordingly granted leave to commence proceedings for pain and suffering and economic loss.
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