Plaintiff v Defendants

Plaintiff v Defendants - [2017] VSC 452 - VSC 2017 case summary — Zoe

[49]

iii. Brain injury;

iv. Left shoulder injury;

v. Scarring;

vi. Fractured ribs; and

vii. Chronic Adjustment Disorder, depression and anxiety?

Answer: In the Panel's opinion [the worker] is currently suffering from a persisting dysfunction of the thoracolumbar spine following compression fractures at T12 and L4, a surgically treated soft tissue injury at L4/5, an incompletely resolved, mild closed head injury, asymptomatic scarring of the scalp, both knees and lumbar spine region and from an adjustment disorder with anxious mood and mild features of traumatisation, attributable to the claimed injuries.

The Panel is also of the opinion that the bilateral multiple fractures of the ribs have resolved and [the worker] is not currently suffering from any intrinsic physical condition of the left shoulder.

Question 2: Was [the worker's] employment with [the employer] a significant factor to the following alleged injuries:

i. Brain injury;

ii. Left shoulder injury?

Answer: i. Yes.

ii. No.

Question 3: What is the extent to which any medical condition resulted from or was materially contributed to by the claimed injuries?

Answer: The Panel is of the opinion that [the worker's] current physical and psychiatric medical conditions of a persisting dysfunction of the thoracolumbar spine following compression fractures at T12 and L4, a surgically treated soft tissue injury at L4/5, an incompletely resolved mild closed head injury, asymptomatic scarring of the scalp, both knees and lumbar spine region and adjustment disorder with anxious mood and mild features of traumatisation resulted from and were materially contributed to by the claimed injuries.

Question 4: During the period from 4 February 2011 to the date of the Medical Panel examination did [the worker] have:

i. a current work capacity; or

ii. no current work capacity?

Answer: The Panel is of the opinion that during the period from 4 February 2011 to the date of the Medical Panel's examination [the worker] had no current work capacity.

Question 5: As of the date of the Medical Panel examination, does the Plaintiff have:

i. a current work capacity; or

ii. no current work capacity?

If [the worker] has no current work capacity, is that likely to continue indefinitely?

Answer: The Panel is of the opinion that as of the date of the Medical Panel's examination [the worker] had no current work capacity and this situation is likely to continue indefinitely.

[51]

[The worker] told Panel that in 1971, at the age of 16, he again lied about his age, forging papers which would enable him to immigrate, and he said that he came to Australia at that time. He told the Panel that over the subsequent years he had worked variously as a fruit picker, as a process worker in factories, as a laborer [sic] and as a forklift driver, and he said that he had "always done physical jobs". When asked whether he had run his own business at any time [the worker] initially completely denied this, but at a later time during the assessment he told the Panel that at some point he had managed a milk bar for two years, and concurrently had also a run golf driving range, and he said that after completing a Real Estate Certificate he had spent three months working in real estate. He told the Panel that he had also had other experience in the retail industry in the 1990s, at which time he said that he had been "selling photocopiers for a few months".

The Panel noted the information pertaining to [the worker's] occupational history contained in the "130 Week Vocational Assessment Report["] of WorkFocus, dated 29 March 2010, which was included with the Referral material. The Panel noted that [the worker] is said to have obtained an "IT Certificate IV at Swinbourne University"; that between 1990 and 1992 he is said to have been employed as a marketing and finance director with Parklake Pty Ltd; that between 1997 and 1999 he is said to have worked as a commercial business and finance manager for Stockdale & Leggo Real Estate; and that between 1996 and 2007 he is said to have been the owner and executive director of Exon Manor, where his duties were described as finance placement of mortgages, promotion and marketing, preparation of financials and executive summaries, business finance and procuring offshore venture capital.

The Panel asked [the worker] about this information, and [the worker] said that the document was a total fabrication. He told the Panel that he had never attended Swinbourne University, that he knew nothing about information technology, that he had "never heard of Parklake", and that although he had, at some stage, been employed by Stockdale & Leggo Real Estate, he had only worked there for three months. He told the Panel that he had owned a company named Exon Manor, but he said that this company had been established because he needed "to give someone something" and had never otherwise been active. He told the Panel that he had never worked in business finance, and when specifically asked about procuring offshore venture capital he said "what's that?"

He told the Panel that his computer skills are limited to "sending emails and googling stuff" on his mobile phone, and he said that he does not own a computer.

[57]

The Panel considered [the worker's] educational and occupational history, noting the discrepancies between the information provided by [the worker] and the information contained in the 130 Week Vocational Assessment Report, dated 29 March 2010. The Panel accepted [the worker's] history that he has no qualifications in information technology, no qualifications or experience in finance, and only three months' occupational experience in real estate. However the Panel also noted that [the worker] has extensive experience in retail, both when previously selling photocopiers in the 1990s and more recently when running a milk bar.

The Panel noted that [the worker] demonstrated a favourable personal presentation, with good English expression skills although he was quite vague at times, that he has adequate English literacy and numeracy skills but limited computer skills, that he holds a current driver's licence, and that his current work-related physical and psychiatric medical condition does not preclude him from driving, albeit he advised that he generally only drives locally and avoids driving on freeways, or from being able to use public transport.

The Panel also noted, and considered, the 130 Week Vocational Assessment Report, dated 29 March 2010, which was included with the Referral material and which identified the potential suitable employment options of a finance manager, a clerical and administrative worker, a credit or loans officer, a sales assistant, a customer service manager and a receiving/dispatching clerk for [the worker's] transferrable skills and physical and psychiatric medical condition.

The Panel asked [the worker] about his own perception of his capacity to work. [The worker] told the Panel that he considered that his lower back pain would probably preclude him from engaging in any employment duties, but he said that if he could secure a position where he was able to sit, stand and walk around at will, and for which he was qualified, he would be able to do the job.

The Panel specifically asked [the worker] about his perception of his ability to engage in the jobs identified by the occupational rehabilitation provider as being potentially suitable for him, and [the worker] said that whilst he had no qualifications in finance or management he could probably do administrative/clerical work if he could move around. He told the Panel that he also considered himself capable of the duties of a retail assistant, but he said that he "would detest" such a job.

The Panel considered all aspects of the definition of "suitable employment", "current work capacity" and "no current work capacity" as defined in the Victorian Workers Compensation Legislation. Specifically the Panel considered:

[59]

The Panel considered the functional and educational requirements of the vocational options of a finance manager, a clerical and administrative worker, a credit or loans officer, a sales assistant, a customer service manager and a receiving/dispatching clerk. The Panel noted that [the worker] lacks both qualifications and occupational experience which would enable him to engage in the duties of a finance manager or a credit or loans officer. The Panel also noted that the roles of a clerical and administrative worker and of a receiving/dispatching clerk would require computer skills which [the worker] does not currently possess, and the Panel further noted that the duties of a sales assistant and of a customer service manager could require heavy manual handling when handling/displaying stock and/or prolonged periods of weight-bearing activity when serving customers, which would be beyond [the worker's] physical ability. The Panel therefore concluded that the occupations of a finance manager, a clerical and administrative worker, a credit or loans officer, a sales assistant, a customer service manager and a receiving/dispatching clerk would not constitute suitable employment for [the worker].

The Panel considered that there is no work for which [the worker] is currently suited and which he could perform on a reliable and consistent basis, and the Panel also considered that this has been the case during the period from 4 February 2011 to the date of the Panel's assessment.

The Panel therefore concluded that [the worker] has no current work capacity, and the Panel also concluded that this has been the case during the period from 4 February 2011 to the date of the Panel's assessment.

The Panel noted that apart from a single Vocational Assessment in 2010 [the worker] has not been provided with any occupational rehabilitation services, that he has not participated in any form of occupational retraining, and that he has never received any formal psychiatric treatment.

The Panel considered that with the provision [of] appropriate psychiatric treatment and occupational rehabilitation services, including retraining, [the worker] could regain a current work capacity, but the Panel was unable to determine if or when this might occur. The Panel therefore concluded that [the worker] is likely to continue indefinitely to have no current work capacity.

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Judgment (179 paragraphs)

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Legislation Cited (3)

Cases Cited (7)