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[2019] VSCA 68
General information, not legal advice.
Court of Appeal (Vic)
2019-04-01
Ms J, Mr J, Beach JA, Niall JA
Original judgment source is linked above.
[2018] VCC 1022 (Judge Cohen)
ACCIDENT COMPENSATION - Application for leave to appeal - Workplace injury - Serious injury application - Loss of earning capacity - Whether applicant suffered permanent loss of earning capacity of 40 per cent or more - Suitable employment - Failure to undertake reasonable rehabilitation - Relevance of failure to undertake reasonable rehabilitation - Judge's reasons - Whether judge's reasons adequate - Appeal having no real prospect of success - Application for leave to appeal refused - , and 38(e)-(g).
WORDS AND PHRASES - Suitable employment - Accident Compensation Act 1985, s 5(2)(b) - Workplace Injury Rehabilitation and Compensation Act 2013, s 3.
1 Between September 2002 and July 2006, the applicant was employed by the respondent as a trailer mechanic, carrying out mechanical repairs and servicing semi-trailers. His work involved him performing many strenuous tasks over long working hours and, as a result, he began to develop pain, initially in his left groin and abdominal area, and later in his right abdominal, groin and hip area.
2 By an originating motion filed in the County Court on 19 September 2016, the applicant sought leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 ('the Act') to commence a proceeding at common law claiming damages for the injuries he alleged he sustained in the course of his employment with the respondent. The applicant relied upon paragraphs (a) and (c) of the definition of 'serious injury' contained in s 134AB(37) of the Act.[1] He sought leave to commence a proceeding claiming both 'pain and suffering damages' and 'pecuniary loss damages'.[2]
3 In relation to his claim under paragraph (a) of the definition of 'serious injury', the applicant initially identified a number of different body functions which he alleged were serious injuries. Those body functions included the right hip (with associated right abdomen, buttock and groin), the left hip (with associated left abdomen, buttock and groin), the lumbar spine, the right shoulder, and the left and right knees.
4 The applicant's proceeding was heard in the County Court by Judge Cohen over nine days in April and June 2018.[3] At the commencement of the hearing, the applicant limited his case under paragraph (a) of the definition of serious injury to his 'right hip and groin area, with what might be associated symptoms in his right abdomen and right buttock or lower back'.[4]
5 On 9 July 2018, her Honour granted the applicant leave to commence a proceeding claiming pain and suffering damages only in respect of the injuries to his right hip and groin area suffered as a result of his employment with the respondent. The judge, however, refused the applicant leave to claim pecuniary loss damages, concluding that the applicant had not established a permanent loss of earning capacity of at least 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] The judge also rejected the claim under paragraph (c) in respect of a mental or behavioural disturbance or disorder.[6]
6 The applicant now seeks leave to appeal the judge's order refusing him leave to commence a proceeding claiming pecuniary loss damages. In his three proposed grounds of appeal, the applicant makes the following complaints.
7 In ground 1, he contends that the judge erred because she did not consider whether the applicant had a capacity for 'suitable employment' as that expression is defined in the Act.
8 In ground 2, the applicant contends that the judge erred in finding that the applicant had not satisfied the requisite loss of earning capacity test. Moreover, in finding against the applicant, the judge erred in failing to make findings about the applicant's level of capacity for suitable employment on a full-time or part-time basis.
9 In ground 3, the applicant contends that the judge did not provide an adequate statement of reasons for her conclusion that the applicant could undertake suitable employment on a full-time basis.
10 On the hearing of the application in the County Court, the applicant relied upon three affidavits sworn by him on 8 April 2016, 7 March 2018 and 26 March 2018. The applicant, who was unrepresented at the hearing, gave evidence and was cross-examined.
11 The only other witness to give oral evidence was an employment placement consultant, Ms Robyn Willet. Ms Willet was a co-author, with Ms Janette Ash (an injury management consultant), of a vocational assessment report dated 19 June 2017, and the sole author of a supplementary report dated 16 November 2017, which reports were commissioned on behalf of the respondent.
12 The balance of the evidence consisted of documents tendered by the parties, including numerous medical reports, certificates, assessments and other vocational assessment documents.[7]
13 The applicant was born in July 1958. He was 48 when he ceased employment with the respondent, and 59 at the time of the hearing of his application. He was born in Eritrea, where he completed 12 years of school and started training and work as a motor mechanic.
14 In about 1980, the applicant left Eritrea and moved to Germany. There he did further motor mechanic training and achieved qualifications which were subsequently recognised when he moved to Australia. His particular qualifications were in relation to heavy vehicles, and he worked for several years in companies involved in the motor vehicle industry in Germany.
15 In approximately 1998 the applicant, who had previously travelled to Australia and obtained a residency visa, commenced permanent residency in Australia. On arrival in Australia, he worked first as a factory hand for a few months, and then in truck assembly.
16 In September 2002, as we have already said, the applicant commenced work with the respondent as a trailer mechanic, carrying out mechanical repairs and servicing semi-trailers. His duties involved considerable physical exertion and required him to work under trailers, lift heavy items, use large manual jacks to elevate the trailers from their ground position, and push and pull them into position. Some of his duties involved kneeling and working in that position. He worked long hours. He said that he usually worked 90 hours per week during the first couple of years, and that he did many hours of overtime, working a six-day week.
17 By July 2006, the applicant was married and had a young child. Another child was born subsequently. The judge said that she accepted that the applicant led an active life, not only working long hours to provide for his family, but also walking for general exercise, and enjoying swimming and cycling.[8] Additionally, the applicant enjoyed functions in his community, including dancing.
18 The judge accepted that the applicant's duties included many strenuous tasks over long hours.[9] The evidence was that during 2005, the applicant gradually developed pain in his left groin and abdominal area. He consulted a general practitioner, Dr Ilahee, but kept working. In September 2005, he consulted Dr Ilahee about similar pain developing on the right side.
19 The applicant was placed on alternative duties for a short time during 2005, but then returned to his full duties. In March 2006, he attended his doctor due to further pain in his right abdominal, groin and hip area. Dr Ilahee thought the applicant's pain was associated with his strenuous work duties. The applicant took three days sick leave.
20 In mid-July 2006, the applicant returned to Dr Ilahee, with worsening pain in his right groin, hip and lower abdomen. On 25 July 2006, Dr Ilahee recommended time off work to rest and recover, and certified the applicant unfit to work until 2 August due to 'right abdomen and right groin pain from heavy work'.
21 On 27 July 2006, the respondent sent the applicant a letter saying there would be no position available to him from 1 August 2006. The applicant has continued to complain of pain and discomfort in his right hip and groin, reaching into his right buttock, lower back and lower abdomen ever since.
22 In the 12 years from the time he first suffered symptoms arising out of his employment and the hearing before the judge, the applicant was under the care of three successive general practitioners or their clinics.
23 He attended Dr Ilahee from when he first suffered symptoms until about August 2008, but became dissatisfied with her because she did not recommend him ceasing his heavy work in 2005, which might have prevented the pain worsening in his right hip and groin, and because he was under the impression that she was being pressured by WorkCover to change her certificates.
24 The applicant came under the care of Dr Charles Castle from August 2008. Dr Castle was an orthopaedic physician who acted as the applicant's general practitioner. The applicant remained under the care of Dr Castle until he retired in 2012, whereupon he came under the care of Dr Andrianakis.
25 From time to time, the applicant was referred by his treating general practitioners for diagnostic tests, and also to various specialists. In November 2006, he was referred to Cedar Court to be assessed for possible rehabilitation through a multidisciplinary program. However, that assessment was not completed because, as the judge put it, the applicant:
objected to parts of the assessment including functional testing as he expected only direct treatment of his injury, and refused to discuss matters he did not consider directly related to his injury.[10]
26 Over the years the applicant has received treatment for, and been investigated in relation to, hip pain, lower abdominal pain, groin pain, low back pain, bilateral knee pain and right shoulder pain. His treatment has been basically conservative, including physical therapies, analgesics, topical heat rubs, rest and various medications including Naprosyn and Panamax. He underwent injections into his groin (both sides), and one (or possibly two) injections into his right hip. None of these provided any significant relief. The possibility of hip replacement surgery has been canvassed from time to time, as has the possibility of arthroscopies of his knees.
27 In his last report (March 2018), Dr Andrianakis noted the applicant's continued complaints of right hip pains and discomfort, made worse when standing, sitting and walking; a pronounced limp caused by the applicant's hip injury as well as the applicant's groin injury; pains in the applicant's knees (especially the right); and complaints of ongoing pain and stiffness in the applicant's right shoulder and lower back. Dr Andrianakis believed that the right shoulder and right-sided hip, groin and knee pains were what were preventing the applicant from returning to work. At that time the applicant was being managed with Panamax, Naprosyn and deep heat topical rubs. His condition was stable, but not improving.
28 Before describing, and setting out necessary parts of, the judge's reasons, we should say that the application to this Court was much assisted by the comprehensive reasons of the judge which clearly exposed and analysed the relevant evidence and issues in dispute between the parties. While the dispute in this Court is limited to the issue of loss of earning capacity flowing from the applicant's right hip and groin injury, it is necessary to describe in some detail the judge's reasons relating to the injury sustained and pain and suffering consequences in order to put her Honour's reasons in relation to loss of earning capacity in their proper context.
29 The judge commenced her reasons for judgment with a description of the procedural background of the application, the basis of the application and the issues that were then between the parties.[11] She then turned to the evidence, noting that in most cases of the present kind the credibility and the reliability of the applicant's own evidence is important because both the Court, and doctors whose opinions are in evidence, are reliant on the applicant's history and the impact of any claimed symptoms.[12]
30 In relation to the applicant's reliability, the judge said:
It was not my impression that Mr Weldemichael was deliberately lying about any of the matters covered in his evidence. However, I have had considerable doubt about the reliability of some of what he says. I find that there has been much reconstruction in his thinking about the timing and extent of his symptoms and their impact on his life. It is now almost 12 years since he suffered the injuries the subject of this application, and since he ceased work. The passage of time, intervening events and ongoing disputes in relation to his injuries, payment for medical treatment, and with the whole 'WorkCover system' have, in my view, interfered with the reliability of his recall of relevant details over the intervening period. He has dwelt for a long time on grievances against many people in the Workcover system, including attributing some of their actions or attitudes towards him as based on racial prejudice. I do not find that he was deliberately exaggerating, but his focus on his grievances has in my view impacted the reliability of his description of the extent of pain and interference with daily living activities. I have therefore looked for other evidence to evaluate the extent of his symptoms and their impact on his life.[13]
31 The judge then dealt with the only other witness who was called, Ms Willet, saying that, like the applicant, it was not her impression that Ms Willet was deliberately lying in any of her evidence. The judge, however, said that she found some aspects of the report co-authored by Ms Willet to be unsatisfactory, and she was not convinced by some of Ms Willet's explanations that the conclusions in that report were reliable.[14]
33 Next, the judge carefully analysed the medical evidence in relation to the applicant's right hip and groin, concluding that as a result of the strenuous nature of the applicant's work duties, he suffered an injury to his right hip and groin area. The judge noted that while the diagnosis had varied at different times, an MRI scan of the applicant's right hip conducted in September 2007 reported a labral tear and adjacent full thickness chondral loss of the acetabula and femoral head chondral surfaces, consistent with manifestations of femoral acetabula impingement.[18]
34 The judge said that she was satisfied that the preponderance of the medical opinion since the 2007 MRI attributed the basis of the applicant's ongoing complaints of pain and discomfort in the hip and (at least to a degree) the right groin and buttock areas to the pathology found in that MRI.[19] The judge also noted that a subsequent MRI of the right hip performed in 2015 indicated further deterioration, and that this was consistent with earlier opinions from a number of medical practitioners (Mr Robin, Dr Castle and Mr Brearley) that there would likely be deterioration and eventually hip replacement surgery might be required.[20]
35 The judge then analysed whether the consequences of the applicant's right hip and groin injury 'constitute[d] a serious injury as to pain and suffering'.[21] In the course of this analysis, the judge identified as key issues in determining whether the consequences of the applicant's injury could fairly be described as 'at least very considerable',[22] the following matters:
36 The judge then said that she had already explained why she did not consider the applicant's own account of the extent of his symptoms and the impact from his hip and groin injury to be wholly reliable. As the judge then put it:
He often talks of pain from all of his injuries and not just the right hip area. He is heavily focused on his pain and grievances, at times to the exclusion of logical limits.[24]
37 The judge then dealt with a submission made by the respondent that the applicant was not able to disentangle the psychological effects of his condition from the physical, as required by s 134AB(38)(h) of the Act.[25] After further analysis, the judge said:
I am satisfied that there is sufficient overall medical confirmation that he has suffered an organically based injury to his right hip area, which has not been repaired, not resolved, will continue to deteriorate, and continue to cause him symptoms of pain and discomfort. In these circumstances, while I have considered that his pre-occupation with pain may be inflating his perception of that pain, I am satisfied that the primary cause of his ongoing pain continues to be organic injury in his hip.[26]
38 In so concluding, the judge said that she placed less weight on some of the reports, saying they should be discounted because they 'entered upon advocating' a particular party's case. The medical practitioners to whom the judge made reference in this part of her reasons were Mr Weaver and Dr Davison (whose reports had been tendered by the respondent), and Dr Andrianakis, Dr Castle and Mr Brearley (whose reports had been tendered by the applicant).[27]
39 Next, the judge looked at the question of whether the consequences of the applicant's right hip and groin injury could be 'fairly extracted from the consequences of other subsequent injuries'.[28] The judge said that she was able to extract those consequences, because it was clear that it was the right hip and groin injury that caused the applicant to be put off work for rest, prescribed medication, and sent for physical therapies before other complaints of pain emerged.[29]
40 Finally (on the issue of pain and suffering consequences) the judge concluded:
I have decided on the balance of probabilities, that taking into account the circumstances of his life, his age, the continuing pain and discomfort from his right hip and groin injury and their limiting of his everyday activities as well as of most social activities of enjoyment, the loss of the satisfaction of working in a field for which he trained and had worked for much of his adult life, and the overall consistency of complaint to doctors over many years that the worst of his symptoms came from his right hip and groin area, when compared with other cases of impairment of body functions, can fairly be described as consequences to him which have been at least very considerable. I am also satisfied that having been entrenched over almost 12 years, and as the degenerative change is likely to deteriorate rather than improve, the consequences from that injury to him are likely to last for the foreseeable future. I am therefore satisfied that he has satisfied the test for a serious injury as to pain and suffering in respect of the injury to his right hip and groin area.[30]
41 The judge then turned to the question of pecuniary loss damages and whether the applicant should be granted leave to bring a claim for loss of earnings and loss of earning capacity. She commenced her analysis by observing that there were two aspects of the case which raised particular complications: first, the fact that the applicant claimed to have suffered injuries to several parts of his body - which created the need for him to establish that his claimed loss of earning capacity consequences were attributable to his right hip and groin area, rather than some other injury; and secondly, the fact that it was almost 12 years at the time of hearing since the applicant suffered injury - requiring the Court to compare current pay rates with rates in place many years earlier during the period three years before and after the injury.[31]
42 The judge then said that she was satisfied that since 25 July 2006 the applicant has been effectively incapacitated from his pre-injury job as a truck trailer mechanic. She said that she made that finding based on all of the medical evidence except for the opinion of Mr Weaver.[32] The judge then found that 'even if no other injuries had emerged, the right hip and groin injury alone would have continued to cause some incapacity for work, and in particular, to restrict him from returning to the full duties of a motor mechanic, whether on truck trailers or lighter vehicles'.[33]
43 The judge was, however, 'not satisfied that absent the onset of knee and right shoulder conditions, [the applicant] would not have been capable of engaging in some modified employment duties'.[34]
44 Next, the judge dealt with the reports of Dr Castle and Dr Andrianakis which were to the effect that the applicant, throughout the time that they treated him, was incapacitated for all work for which he was reasonably suited. Echoing something she said in relation to pain and suffering consequences, the judge said:
Even apart from both of them entering into advocacy for [the applicant] to an extent which in my view limits the weight I should place on their opinions, the greater problem for [the applicant's] case with those opinions is that they do not differentiate the contribution of his right hip and groin condition from the contribution of the bilateral knee problems, right shoulder, and, to a lesser extent, left groin and hip and back.[35]
The chronological emergence of those other conditions and their impact on his ability to work was unable to be disentangled by those doctors who did not commence to treat him until all such conditions were the subject of his complaints. I do not overlook that the right hip was frequently referred to as causing the greatest problem, but ability to adapt to alternative work duties was not separately addressed by these doctors by reference to the different injuries.
Mr Brearley's opinion in 2012 did support the total incapacity for employment of the plaintiff. However, his report was focussed on the causative link between each of the injuries of which [the applicant] complained and his former work duties, and also failed to consider whether the incapacity for all employment was attributable to the hip and groin injury.[36]
46 Next, the judge dealt with s 134AB(38)(g) of the Act. Section 134AB(38)(g) provides:
a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred; .
47 In relation to s 134AB(38)(g), the judge found that there were 'several aspects' of the applicant's approach to potential rehabilitation which were unreasonable. The judge set these out as follows:
First, he developed a view quite early (late 2006) that he would not attempt any return to work until his injuries were fully cured. He articulated that to the WorkStreams assessors in December 2006. He argues, and I can understand, that he perceived the main focus of the defendant's claims agent sending him for various assessments to be to get him back to work rather than to treat his health problems.
However, it was also treating doctors who recommended he undergo rehabilitation, starting with a referral for assessment for a Cedar Court program. Mr Weldemichael's attitude totally failed to accept, a sad reality of life, that many people who are injured in various ways do not fully recover from their injuries. It is also fundamental to most rehabilitation programs that total cure of conditions and symptoms is often not possible, and there are measures that can be taken and methods learnt to ease impairment of functioning by undergoing various types of programs and also by adapting life and work activities to minimise the occurrence and impact of symptoms.
I find that the plaintiff was unreasonable in his attitude at and abandonment of the Cedar Court assessment for a multi-disciplinary program. He seems to have abandoned that assessment partly because he had believed he was attending for a physical therapy session, and also because he was being asked questions which he felt intrusive and did not believe relevant to his injury. I accept from the report that the reasons for the assessment were explained to him at the time, and find that even though he was upset at the time, he was unreasonable in not subsequently returning.
Further, and even more starkly, I find that his refusal to undergo an assessment for a pain management program at Epworth in 2008 was unreasonable. He was referred for this assessment by doctors to whom he had been referred for treatment - Mr Johnson referred him to Dr De Graaf, and Dr De Graaf clearly explained the purpose of the assessment. Indeed Mr Weldemichael himself wrote to the claims agent complaining that funding had not been approved and the delay was impacting his health. Funding was granted, but he then refused to undergo an assessment for the program he knew had been recommended for him, because he learnt that Epworth now owned Cedar Court, and the programs were similar. In my view his refusal to undergo that assessment was unreasonable on any objective basis.
Finally, he seems to have avoided the pain management referral to the Barbara Walker Centre, becoming wholly focussed on the failure of the defendant's insurer to pay for the supportive shoes recommended by a therapist.[37]
48 The judge then acknowledged that concluding that the applicant had unreasonably failed to engage in rehabilitation programs did not mean that his application for leave to commence a proceeding claiming pecuniary loss damages must fail. Section 134AB(38)(g) required the Court to take into account what the applicant would have been able to earn from personal exertion had he made reasonable attempts at rehabilitation.[38]
49 The judge turned next to the vocational assessment evidence and the oral evidence of Ms Willet. The judge referred to this evidence in significant detail.[39] The judge rejected various employment options suggested in the evidence as unsuitable. Specifically:
50 On the other hand, having rejected these positions, the judge accepted that jobs involving the assembly of light articles, where the applicant could move between sitting and standing, were within his capacity so far as his hip and groin injury was concerned. Specifically, the judge accepted that the applicant had a capacity to perform the role of a product assembler - one of the suggestions made by Recovre (the organisation which employed Ms Willet).[42]
51 With respect to jobs involving the assembly of light articles, the judge went on to say:
I am satisfied that it is more likely to be the condition of his knees or his right shoulder that would interfere with his ability to perform such jobs, especially light assembly work, and I note the need to distinguish those injuries from the injury the subject of this application (sic). Those were not conditions pre-existing the subject injury, but which manifested after it, so his right shoulder or knees did not prevent him being able to work at the time that the hip injury reached a stage of preventing him from being able to continue in the heavy mechanical repairs job he had been performing.[43]
52 In reaching her conclusion that the applicant had a capacity to engage in light assembly work, the judge rejected an opinion given by Employment Professionals (an organisation commissioned to provide a report by the applicant's former solicitors) that the applicant had no realistic capacity for work. She said she placed little weight on their conclusion for three reasons:
First, the history of injury on which it was based was clearly and significantly wrong, in that it recorded that injuries to the plaintiff's knees, right shoulder and back were pre-existing, and that on each occasion he had returned to working normal duties. It also records that he has medication dependence, and poor memory and concentration, which adversely impact employment prospects from a health and safety aspect, such as working near machinery. Secondly, the report fails to differentiate between the effects of the other injuries than that to his right hip. Thirdly, it addresses the realistic prospects of his being acceptable to prospective employers. The law I must apply requires consideration of his capacity to perform jobs rather than the realistic prospects of his obtaining such jobs on the employment market.[44]
53 Ultimately the judge concluded that she was not satisfied that the applicant's right hip and groin injury had since September 2006 incapacitated him for a variety of light assembly type roles or supervision or trade sales in mechanical parts.[45] The judge said that she was then required to consider whether the applicant had satisfied the requirement to prove a permanent loss of earning capacity of at least 40 per cent.
54 The method by which that assessment is made has been described before, and the relevant principles are not in dispute in this case.[46]
55 The judge held that the 'without injury earnings'[47] was a gross annual figure of $61,132. In order to succeed in his application in respect of pecuniary loss damages, the applicant had to persuade the judge that the gross annual income from personal exertion which he was capable of earning in suitable employment as at the date of the hearing was no greater than 60 per cent of this figure ($36,679). Ultimately, however, the judge accepted that light assembly work, paying an average of $27.50 per hour, for an average 38 hour week, over a minimum 44 week period, produced a figure of approximately $45,900.[48] Thus, the judge concluded that the applicant had not established the requisite 40 per cent loss of earning capacity entitling him to commence a proceeding for pecuniary loss damages.
57 Under ground 1, the applicant contended that the trial judge erred because she did not consider whether any of the light assembly roles, supervision or trade sales in mechanical parts duties that she concluded the applicant could undertake,[51] constituted 'suitable employment'. The Act defines 'suitable employment', in relation to a worker, to mean employment in work for which the worker is currently suited having regard to:
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker's pre-injury employment;
(iii) the worker's age, education, skills and work experience;
(iv) the worker's place of residence;
(v) any plan or document prepared as part of the return to work planning process;
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker.[52]
58 The applicant submitted that, in considering the suitable employment issue, the judge wrongly confined her consideration to whether the applicant had the physical capacity to perform the duties involved in light assembly, supervision or trade sales in mechanical parts jobs. The judge was required to take into account the other matters referred to in the definition of 'suitable employment'.
59 Additionally, the applicant submitted that the jobs proposed in reports compiled in 2006 and 2007 could not in any event have been logically considered 'suitable employment', as those jobs were 'over a decade old'. In support of that submission, the applicant relied upon a statement by Smith J in Public Transport Corporation v Pitts,[53] where his Honour said:
In my view, the reality was that the defendant had to adduce evidence sufficient to raise as a real possibility that there were particular types of employment available in the community which the plaintiff was capable of performing. If it did not it would lose. Thus there was an evidentiary onus on the defendant on that issue.[54]
60 Under ground 2, the applicant contended that, in reaching her conclusion that he had not satisfied the requisite loss of earning capacity test, the judge erred when she failed to make findings as to the applicant's level of capacity for suitable employment. The applicant submitted that the judge 'used a full-time equivalent salary, without explaining why she had relied on a full-time salary as opposed to a part-time figure'.
61 The medical evidence as to the applicant's capacity for suitable employment was varied. The applicant relied upon an opinion expressed by Dr Yong in 2013. Dr Yong said that there had been a reduction in the applicant's work capacity from an earlier examination in 2007, in part due to 'deconditioning' and 'age contributing to the degenerative condition'.
62 The applicant also relied, in part, upon an opinion expressed by Dr Davison in 2017. In that opinion, Dr Davison 'prescribed limitations on the nature of work activities that could be undertaken and imposed a limitation on work hours, commencing at four hours per day thereafter incrementally increasing'. The applicant did not, however, totally embrace Dr Davison's opinion - noting that it was based on a view that the applicant 'had a greater physical capacity than he is prepared to admit', a view not shared by the judge who was satisfied that the applicant had 'not been living a much more active lifestyle than he describes'.[55]
63 Ultimately the applicant submitted that if Dr Yong or Dr Davison's opinion as to limited hours of work were accepted, then the applicant would have demonstrated the requisite 40 per cent loss of earning capacity.
64 Under ground 3, the applicant contended that the judge did not provide an adequate statement of reasons for her conclusion that he could undertake suitable employment on a full-time basis. Indeed, the applicant went further to say that the judge 'failed to provide any reasoning for her conclusion that the applicant could undertake suitable employment on a full-time basis'.
65 In oral argument, the applicant concentrated on ground 3. In summary, the applicant made the following submissions:
(1) The judge's analysis of the loss of earning capacity issue (and her unfavourable conclusions to the applicant) had to be assessed by reference to earlier findings at Reasons [93], [95], [97], [102], [103] and [106]. In those paragraphs, the judge:
(2) Notwithstanding the relevance of the findings in Reasons [93], [95], [97], [102], [103] and [106], they 'did not feature' in her Honour's analysis of the loss of earning capacity issue (that analysis being contained in Reasons [107]-[146]).
(3) The judge's reasons were deficient in four specific respects:
(4) The judge failed to grapple with, and explain in her reasons, why she concluded that particular jobs identified by Recovre were suitable in light of the medical evidence tendered. It was submitted that, when properly analysed, these particular jobs were not in fact suitable. Moreover, the provision of adequate reasons about these jobs would have revealed that they were not suitable.
66 The respondent commenced its written case noting that the task of identifying the consequences of the applicant's impairment was complicated by three factors:
67 Under ground 1, the respondent submitted that the judge was correct to conclude that the applicant's injury did not preclude him from working in suitable employment including in light assembly type roles. The respondent relied upon opinions expressed by Dr Wilk and Dr Ilahee in 2006, an opinion of Dr Yong expressed in 2007, an opinion of Mr Weaver expressed in 2008, and the 2017 opinion of Dr Davison. Contrary to the applicant's submission, the respondent contended that the judge did not focus the entirety of her reasoning on the applicant's physical restrictions; nor did she fail to have regard to the various matters contained in the definition of 'suitable employment'.
68 In submitting that the judge did not fail to have regard to matters contained in the definition of suitable employment, the respondent made the following points:
(1) In her reasons, the judge used the term 'suitable employment' eight times.[58] She also used the 'shorthand' expression, 'suitable jobs', twice.[59] In addition, on two occasions during the hearing, the judge provided the applicant with a document containing the definition of 'suitable employment' and explained to him that the definition set out the various factors that had to be taken into account in deciding what constituted suitable employment.
(2) In her reasons, the judge expressly relied on the applicant's limited English language skills and limited computer skills to exclude particular jobs[60] - showing that her Honour did not limit her consideration to the applicant's physical capacity.
(3) The judge expressly recorded in her reasons that the applicant was about to turn 60 years of age.[61]
(4) The judge detailed the applicant's educational and work history in her reasons for judgment.[62]
(5) In her reasons, the judge stated that almost 12 years had passed since the applicant last worked, and that this raised a particular complication for the applicant's claim because of the use of pay rates in force at different times.[63]
(6) The applicant did not submit to the judge that his age, or his education, skills and work experience, or place of residence, or his time out of employment precluded him from working in a light assembly type role that he was otherwise physically capable of performing; rather, the applicant's case before the judge was that the physical injury to his right hip and groin precluded him from all work. The judge dealt with that case and rejected it.
69 In relation to the applicant's reliance upon Smith J's statement in Pitts,[64] the respondent contended that the evidentiary onus upon the defendant in that case only arose, as was observed by this Court in Giankos v SPC Ardmona Operations Ltd,[65] when the worker established a prima facie case that no suitable employment, as defined in the Act, existed.[66] The present was not such a case because the applicant never established a prima facie case that no suitable employment existed in relation to him.
70 Under ground 2, the respondent submitted that the applicant did not present a case to the effect that he would be limited in the hours he could work in suitable employment. The argument now put on behalf of the applicant formed no part of the case below.
71 The respondent went on to contend that, in any event, there was no error in the judge's finding that the applicant had the capacity for full-time hours for 44 weeks per year. Four points were made in support of that contention:
(1) The judge was required to consider whether the applicant would continue permanently to have a loss of earning capacity of 40 per cent or more. It was therefore immaterial that Dr Davison imposed an initial restriction on the applicant's return to work hours. Properly understood, his opinion was that the applicant had the capacity to return to work on a graduated basis that would increase to full-time in weekly increments of 2.5 hours.
(2) Contrary to the applicant's submission, the judge's finding that the applicant was an unreliable witness indicated she shared Dr Davison's view that the applicant had a greater physical capacity than he was prepared to admit.
(3) Dr Yong's 2013 opinion was that the applicant's work capacity was 'unchanged' for his back and bilateral hip conditions. Dr Yong's opinion that the applicant could only work 20 hours could not assist in the resolution of the current issue because it impermissibly aggregated the right hip and groin injury with the back, left hip, bilateral knee and right shoulder conditions.
(4) None of the other medical practitioners whose opinions were relevant to the applicant's work capacity - namely, Dr Wilk, Dr Ilahee and Mr Weaver - suggested that the applicant was incapable of working full-time hours.
72 Under ground 3, the respondent submitted that the judge could not be criticised for failing to deal with an argument about fitness limited to part-time work - an argument that formed no part of the applicant's case at the hearing, and for which there was no real basis in the evidence in any event. Read as a whole, the judge's reasons were detailed and dealt with every issue raised in the hearing before her. The reasons disclosed a path of reasoning showing why her Honour concluded that the applicant had not established that his right hip and groin injury had been productive of a loss of earning capacity of 40 per cent or more.
73 In order to succeed in his application for leave to commence a proceeding claiming pecuniary loss damages, the applicant had to persuade the judge that he had sustained a permanent loss of earning capacity of 40 per cent or more, measured in the way prescribed by s 134AB(38)(f) of the Act. That task required the applicant to establish that the amount he was capable of earning in suitable employment as at the date of hearing was no greater than $36,679 gross per annum.
74 Moreover, as s 134AB(38)(g) provided, in assessing the amount the applicant was capable of earning in suitable employment, the Court was required to take into account what the applicant would have been able to earn in suitable employment had he made reasonable attempts at rehabilitation. We turn specifically to ground 1.
75 The applicant's submission that the judge confined her analysis of the suitable employment issue to the question of whether the applicant had the physical capacity to perform the jobs she found suitable must be rejected. The central issue before the judge on the loss of earning capacity question was the applicant's physical capacity to perform various activities. In those circumstances, it is understandable that the judge's reasons deal with that issue in some detail. That is not to say, however, that her Honour ignored or failed to take into account the other matters required to be considered by the terms of the statutory definition of 'suitable employment'.
76 A fair reading of the judge's reasons as a whole, and of that part of her judgment dealing specifically with the loss of earning capacity issue, discloses that her Honour was well aware of, and took account of, the matters required to be taken into account in the definition of 'suitable employment'. The judge expressly referred, in a number of parts of her reasons, to the applicant's age, his less than perfect ability to communicate in English, his educational background and his work history.[67]
77 Next, the applicant's submission that the judge was not permitted to consider jobs referred to in reports compiled in 2006 and 2007 must be rejected. Those reports formed part of the evidence which the judge was required to consider, and entitled to act upon. Remembering that it was the applicant who was required to prove the requisite loss of earning capacity, it was also for him to adduce whatever evidence he might have been capable of adducing that might have called into question whether positions described in reports in 2006 and 2007 were still positions available to be taken up in 2018.
78 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.
79 First, as was said in Giankos,[68] 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.
80 Secondly, even if there was a relevant evidentiary onus on the respondent in this case, in our view that onus was discharged by the tendering of the vocational assessment reports that were ultimately relied upon by the judge in coming to her conclusion that the applicant had failed to establish the loss of earning capacity required by s 134AB(38)(e) of the Act.
81 For these reasons, ground 1 must be rejected. We turn now to ground 2. Like the issues raised by the applicant under ground 1, ground 2 needs to be considered in the light of the fact that it was for the applicant to establish the necessary loss of earning capacity required by the Act.
82 The case before the judge was conducted by the applicant on the basis that he was totally disabled for all types of employment. It was not conducted on the basis that, in the alternative, he was partially disabled to an extent that satisfied the statutory loss of earning capacity test. In the circumstances, it is not surprising that the judge did not conduct some analysis of a case not put to her by the parties.
83 The judge conducted a very careful review of all of the evidence and came to the conclusion that the applicant had not satisfied her that he was permanently incapacitated for a variety of light assembly type roles, on a full-time basis. The evidence permitted that finding. The judge explained why she came to that finding. And the judge was not then required to conduct some analysis of a case based upon the applicant being fit to perform part-time work only.
84 Moreover, the judge's analysis and conclusion in respect of the loss of earning capacity issue must be understood in the light of the three factors referred to by the respondent, namely the considerable doubt the judge had about the reliability of the applicant's account; the existence of the applicant's other medical conditions; and the fact that the applicant had unreasonably refused to participate in rehabilitation programs.
85 In such circumstances, the opinions of the medical practitioners alone could not be determinative on the issue of the applicant's fitness for particular jobs or the loss of earning capacity issue more generally. All of the evidence had to be taken account of before the judge could make a conclusion that she was either satisfied or not satisfied that the applicant had suffered a 40 per cent loss of earning capacity. This is what the judge did, and we are not persuaded that there was any error in her Honour's analysis or conclusion.
86 Indeed, the applicant's failure to undertake reasonable rehabilitation, and an admission he made in cross-examination that he had not even looked for work since 2006, only made the applicant's task of attempting to persuade the judge that he had suffered a permanent loss of earning capacity of 40 per cent that much more difficult. There may have been greater strength in his case had the position been that he had engaged in all the rehabilitation recommended by his doctors and also attempted (unsuccessfully) to return to employment.
87 For these reasons, ground 2 must be rejected. We turn now to the complaints made by the applicant under ground 3.
88 Notwithstanding the very able presentation of the applicant's argument by Ms Forbes QC, we are unable to conclude that there was any inadequacy in the judge's reasons. Indeed, the reasons are a model of detail and clarity, and more than adequately disclose the path of reasoning that led to her Honour's conclusion that the applicant had not made out his case on loss of earning capacity.
89 First, we reject the applicant's submission that, in analysing the loss of earning capacity issue, the judge was required to explain how her findings in Reasons [93], [95], [97], [102], [103] and [106] had been taken into account in arriving at her ultimate conclusion. A fair reading of the reasons discloses that the analysis of the loss of earning capacity issue was made in the light of her Honour's earlier findings. Moreover, the earlier findings and the loss of earning capacity analysis were well capable of standing together without her Honour going into further detail or providing any further explanation.
90 Secondly, we reject the applicant's contention that the reasons were deficient in the four specific respects identified by the applicant in oral argument.
91 As we have already observed, the judge made a number of references to the applicant's level of English and the deteriorating nature of the applicant's right hip condition. As to the applicant's specific tolerance for sitting or standing for particular periods of time, it is plain that the judge took into account all of the evidence on this topic. It was not necessary for the judge to make specific findings about specific periods of time in circumstances where the applicant's evidence was not entirely reliable, and he had unreasonably refused to participate in rehabilitation programs.
92 In relation to the applicant's complaint that the judge failed to provide any reasons for her conclusion that it was 'more likely to be a condition of [the applicant's] knees or his right shoulder that would interfere with his ability to perform ... light assembly work',[69] further reasons were unnecessary. The judge's conclusion was one that was not essential to her reasoning process that the applicant had not satisfied her that he had a permanent 40 per cent loss of earning capacity caused by his right hip and groin condition. The judge's statement that is now sought to be impugned was not a necessary part of the judge's reasons that led to the ultimate conclusion. As such, no further elaboration of it was required.
93 Thirdly, contrary to the applicant's submission, it was not necessary for the judge to set out a detailed analysis of each of the particular jobs that had been the subject of evidence and which the judge found that she was not satisfied that the applicant was incapacitated from performing. To do so would have imposed an unnecessary burden in the circumstances of this case where, as we have already observed, the reliability of the applicant's evidence and his failure to engage in reasonable rehabilitation would have made any such analysis problematic at best. The proper consideration of the applicant's capacity to perform light assembly work did not require some minute consideration of every aspect of a particular position that might or might not have been suitable for the applicant.
94 The proper analysis, and one which was carried out by the judge, involved a broader consideration of all of the evidence. Upon that broader analysis, the judge determined that she was not satisfied that the applicant had made out his case in respect of pecuniary loss damages.
95 The application for leave to appeal must be refused. Before doing so, however, we wish to acknowledge the great assistance provided to the Court, and to the applicant, by counsel who appeared pro bono on his behalf. They addressed, clearly and cogently, all of the arguments which could properly be advanced. In doing so, they upheld the highest standards of the Bar.
[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'.
[2] As those expressions are defined in s 134AB(37) of the Act.
[3] The matter was adjourned from April to June to enable the applicant to seek legal advice before making his final address.
[4] Weldemichael v ID Sales & Repairs Pty Ltd [2018] VCC 1022 [13] ('Reasons').
[7] A full list of exhibits was annexed by the judge, as a schedule, to her reasons for judgment.
[12] Ibid [20]. See further Mobilio v Balliotis [1998] 3 VR 833, 836; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 448; Gjorgovska v AFM Cleaning Services Pty Ltd [2006] VSCA 104 [27]; Veljanovska v Verduci [2014] VSCA 15; (2014) 42 VR 222, 231-2 [39]-[40]; Fenton v AIA Australia Ltd [2017] VSCA 331 [91]; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 [74].
[25] As to the need to disentangle in a particular case, see Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; (2007) 15 VR 649, 660-61 [43]; Jayatilake v Toyota Motor Corporation Aust Ltd [2008] VSCA 167; (2008) 20 VR 605, 612 [24]; Meadows v Lichmore Pty Ltd [2013] VSCA 201 [18]-[22]; Zhang v Joy Foods Aust Pty Ltd [2016] VSCA 199 [56]-[62].
[31] Ibid [108]-[109]. As to the difficulty of comparing rates at times that are years apart, see Roleff v Chubb Insurance Co of Australia Pty Ltd [2011] VSCA 21; (2011) 31 VR 235, 238-244 [16]-[31] ('Roleff'); Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 [70]-[78] ('Yirga-Denbu').
[43] Ibid [141]. The parties agreed in argument that the word 'if' that appears after the fourth word in [141] was a typographical error, and we have deleted it from the extracted passage.
[44] Reasons [142] (footnote omitted).
[46] See Roleff [2011] VSCA 21; (2011) 31 VR 235, 238-244 [16]-[31]; Yirga-Denbu [2018] VSCA 35 [70]-[78].
[47] See Yirga-Denbu [2018] VSCA 35 [70](b).
[52] See s 5(2)(b) of the Act and the definition of 'suitable employment' in s 3 of the Workplace Injury Rehabilitation and Compensation Act 2013.
[53] [2007] VSC 356 ('Pitts').
[58] Ibid [16], [17](iii), [90], [120], [130], [131], [133], [144].
[60] Ibid [137]-[138], [140], [143].
[65] [2011] VSCA 121; (2011) 34 VR 120 ('Giankos').
[67] Reasons [25]-[28], [106], [137]-[138], [140], [143].
[68] [2011] VSCA 121; (2011) 34 VR 120, 144-5 [115].
Weldemichael
ID Sales & Repairs Pty Ltd [2019] VSCA 68
(2014) 42 VR 222
(2011) 31 VR 235
(2007) 15 VR 649
(2008) 20 VR 605
(2011) 34 VR 120