in the county court of victoria revised at melbourne ... · impose specific burdens in relation to...

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION SERIOUS INJURY LIST

Revised Not Restricted

Suitable for Publication

Case No. CI-16-04898

KEVIN CONYERS Plaintiff

HIGHWAY TYRE SERVICE PTY LTD Defendant

JUDGE:

WHERE HELD:

DATE OF HEARING:

DATE OF JUDGMENT:

CASE MAY BE CITED AS:

MEDIUM NEUTRAL CITATION:

HER HONOUR JUDGE K L BOURKE

Melbourne

10 April 2017

12 May 2017

Conyers v Highway Tyre Service Pty Ltd

[2017] VCC 553

REASONS FOR JUDGMENT

Judgment:

For the Defendant

ACCIDENT COMPENSATION Serious injury — impairment to the lumbar spine — pain and suffering conceded — loss of earning capacity Accident Compensation Act 1985, s134AB Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Richter v Driscoll [2016] VSCA 142 Leave granted to bring proceedings for damages for loss of earning capacity.

Counsel Solicitors

Mr A Clements QC with Shine Lawyers Mr E Makowski

Mr W R Middleton QC with Minter Ellison Ms S Gold

Subject: Catchwords:

Legislation Cited: Cases Cited:

APPEARANCES:

For the Plaintiff

COUNTY COURT OF VICTORIA 250 William Street, Melbourne

HER HONOUR:

i This is an application for leave to bring proceedings for damages pursuant to

s134AB(16)(b) of the Accident Compensation Act 1985 ("the Act") for injury

suffered by the plaintiff in the course of his employment with the defendant on

4 October 2013 ("the said date").

2 The plaintiff seeks leave to bring proceedings for damages in relation to loss

of earning capacity only, pain and suffering having been conceded on the

morning of the hearing.1

3 The relevant body function pursuant to s134AB37(a) is the lumbar spine.

4 The impairment of the body function must be permanent, in the sense that it is

likely to continue into the foreseeable future.

5 The plaintiff bears an overall burden of proof upon the balance of probabilities.

Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act

impose specific burdens in relation to a claim for loss of earning capacity.

6 In this case, where there is a claim for loss of earning capacity, that loss of

earning capacity must be to the extent of 40 per cent or more, both at the date

of hearing and permanently thereafter.

7 Subsections (38)(e) and (f) recite the formula by which loss of earning

capacity is to be measured.

8 Subsection (38)(g) requires questions of rehabilitation and retraining be

considered in determining whether the 40 per cent loss has been established.

9 Subsection (38)(h) provides consequences which are psychologically based

are to be wholly disregarded in paragraph (a) cases.

1 Transcript ("T") 2

VCC:DC/LM/AS 1 JUDGMENT


10 I have applied the principles identified by the Court of Appeal in Barwon

Spinners Pty Ltd & Ors v Podolak2 and Grech v Orica Australia Pty Ltd &

Anor3 in reaching my conclusions.

11 The plaintiff relied upon two affidavits and gave viva voce evidence. He was

cross-examined. The plaintiff also relied on an affidavit sworn by his wife,

Jeanette, on 7 April 2017. In addition, both parties relied on medical reports

and other material which was tendered in evidence. I have read all the

tendered material.

The Plaintiff's evidence

12 The plaintiff is presently aged fifty-six, having been born in April 1961

13 After leaving school at sixteen or seventeen, the plaintiff had a number of

casual manual jobs. He worked in various places as a tyre services fitter prior

to working for the defendant. He also worked as a truck driver, mainly

delivering concrete.

14 The plaintiff believed he commenced work for the defendant in 2001 as a tyre

fitter for trucks and cars. His duties included lifting tyres by hand, operating

machinery and tools such as rattle guns.

15 In cross-examination, the plaintiff agreed he worked for the defendant in 1999

and then started again in March 2000 as a casual truck driver, delivering tyres

and picking up scrap, mostly by car, but sometimes by truck. He may have

had that role until August 2003.4

16 The plaintiff then said he initially started with the defendant as a truck driver in

2001 and eventually became a "warehouse manager" and later went to the

Mordialloc store where he stayed until 2005. He then described this role as

"2IC" at Dandenong.5

2 (2005) 3 (2006) 4 T13 5 T13

14 VR 622 14 VR 602

VCC:DC/LM/AS 2 JUDGMENT Conyers v Highway Tyre Service Pty Ltd

17 The plaintiff had this role for months, picking orders and making sure the

trucks got out. He handled tyres all the time and did tyre fitting only on

Saturdays.6

18 In about 2005, the plaintiff worked as a truck driver for Dandy Premix for two

years, operating a ready mixed and pre-mixed concrete truck. He then

returned to the defendant's employ.7

19 As at the said date, the plaintiff was earning $17.20 an hour or $653.60 per

week.8

20 Whilst the plaintiff had episodes of lower back pain in 20049 and also in mid-

2009 and 2010,19 these were relatively minor and it was not suggested this

was an aggravation case.

21 On the said date, the plaintiff was working for the defendant fitting a tyre truck

and, while lifting the tyre, he felt extreme pain ("the incident").

22 After having seen his general practitioner, the plaintiff returned to work on

modified duties and hours but then required further time off. His Claim for

Compensation dated 7 October 2013 was accepted.

23 In mid-2014, the plaintiff was scheduled to undergo back surgery with Mr

Maartens. The surgeon called off the procedure on the day thereof when the

plaintiff was in hospital awaiting surgery. The plaintiff agreed that as Mr

Maartens reported, he had been asymptomatic for two weeks prior thereto.

The surgery was cancelled and when he got worse, the plaintiff returned to his

doctor, who referred him to Mr Wong.11

6 T14 7 T11 8 Claim for Compensation dated 7 October 2013 9 T29

T32 11 T27

VCC:DC/LM/AS

3 JUDGMENT Conyers v Highway Tyre Service Pty Ltd

24 In about July 2014, the plaintiff returned to work and tried to push on with

modified duties and hours but even doing so caused his back pain to

increase. In about September that year, he tried working five hours, three

days a week and doing normal jobs without restriction. However, the following

month, he found it difficult coping with five hours per day and had some

further time off work.

25 After conservative treatment, the plaintiff had surgery performed by Mr Wong

on 6 February 2015 ("the surgery").12

Post-surgery

26 The plaintiff did not regard the surgery as successful. It was not a "quick fix."

He did not discuss his work future with Mr Wong before or after the surgery.

All Mr Wong cared about post surgery was whether the plaintiff had burning

pain down his leg. The surgery relieved the plaintiff's leg pain a little bit and

but he still suffers with it today.13 The plaintiff disagreed when last examined

by Mr Wong on 15 July 2015, he told him that post-surgery he continued to

improve.14

27 The plaintiff's condition has worsened since the surgery. Whilst he is a man

who goes to the doctor if he has a problem, the plaintiff has not returned to Mr

Wong as he "let him go". He did not need to see Mr Wong again and Mr

Wong did not need to see him anymore.15

28 The plaintiff has told Dr Gunawardana that he was not improving after the

surgery but his doctor "was just there to fill out his medical certificates".16 The

plaintiff did not ask for a further referral to Mr Wong because of his previous

advice.17 The plaintiff guessed he was his own worst enemy in putting up with

the pain and not seeking further specialist referra1.18 He was "too busy being

12 Left L5-S1 laminectomy, discectomy and rhizolysis, PCB 31 13 T19 14 T22 15 T25, 127 16 T28 17 T27 18 T67


good at what [he] was good at ... tyre fitting". He just wanted to work. He did

not complain and he just "put [his] head down and backside up".19

29 The plaintiff believes he recommenced working on modified duties and hours

in June 2015, eight weeks after the surgery. During that year, he was doing

his best to stay at work but it was always a struggle. He is not a complainer

and he tried his best to cope with his back and leg pain.

30 On returning to work, the plaintiff started on reduced hours and modified

duties and tried to build up the hours he worked, as he did before the surgery.

He got to 30 hours per week but then had a setback when he fell over at work.

However, he knew there would be problems lasting long term, even on

modified duties, because lifting, bending and twisting of the back movements

were still required, which increased his back and leg pain. He was hoping that

the defendant would re-train him so he could move away from the factory

floor, but no retraining was provided.

31 In 2015, the plaintiff was based at the defendant's Doveton store, which was

closer to his house, because driving longer distances caused back and leg

pain. He was given a driving job for a day at Mitcham but did not last long as

the Range Rover provided was too high and prolonged driving increased his

back pain. Therefore, he returned to work at Doveton.

32 After the surgery, the plaintiff also took days off from time to time due to back

and leg pain. He had regular flare ups of pain, but some days were better

than others.

33 The surgery assisted the plaintiff's leg pain for a period, but as at April 2017

when he swore his most recent affidavit, the pain was at the same level that it

had been before the surgery and was constant.

19 T29

VCC:DC/UWAS 5 JUDGMENT


34 As 2015 progressed, the plaintiff felt he was being pushed to increase his

hours, even though he was finding it hard to cope because of his pain. He

regularly sat down during the day and was in constant pain when he tried to

do modified work.

35 In November 2015, the plaintiff had to take some time off due to increased

back and leg pain. By late 2015, he was doing his best to work about 25

hours a week but was not coping properly. In any event, he was told his role

was not one which could be provided on an ongoing basis until he could do

full-time hours.

36 During that time, Dr Gunawardana was providing certificates with lifting limits

of up to 30 kilograms.20 The plaintiff ended up with a lifting limit of 25

kilograms, working 5 hours per day.21 He never complained and agreed he

was coping with his work.22

37 The plaintiff has never been able to return to pre-injury duties or work full time

since the incident.23 His pain did not resolve when he was seeing Mr

Maartens and it has always been present in hi § back and left leg in particular

since the incident.

38 The plaintiff was advised by letter from the defendant dated 22 January 2016

that as he was unable to perform his modified role in a full-time capacity, thus

his employment was terminated. He has not been able to return to any paid

employment since that date.

39 In further correspondence to the plaintiff dated 3 February 2016, the

defendant advised that as the plaintiff had no current or future capacity to

perform the full-time inherent requirements of his present role or the role he

20 T18 21 T19 22 T24 23 T20

VCC:DC/LWAS 6 JUDGMENT Conyers v Highway Tyre Service Pty Ltd

was originally employed to perform, the company had no alternative but to

terminate his employment.

40 The plaintiff was retrenched on 29 January 2016. At the time he ceased work,

the plaintiff was fitting car tyres only and was on modified duties.

41 The plaintiff started some voluntary work for the Salvation Army in about

March 2016, which he did for about two to three days a week for about four

hours. In about April 2016, he stopped that work on the recommendation of

his general practitioner.

• 42 The voluntary work involved driving a van to collect furniture and other items

and the plaintiff was not required to do any lifting.24 He was not based in a

warehouse sorting goods.26 He started this work as a back up to returning to

the workforce as his doctor had told him he was unfit for work. This voluntary

work finished in about April 2016.26

43 Whilst doing voluntary work, the plaintiff was driving short distances in a role

that was nothing like a real job. He had not been told by Centrelink that he

was required to apply for jobs.27

44 For most of his working life, particularly in recent times, the plaintiff had been

a tyre fitter working in that role for thirty-seven years.28 He had always

preferred to get his hands dirty. He was not a motor mechanic and does not

have those qualifications. He has a certificate as a tyre fitter. He also has a

very outdated welding certificate, but is not a welder and is not very good at

welding. He also has a car-detailing certificate which he obtained a long time

ago, but he is not a car detailer.

24 138 25 T42 26 T39 27 T40 28 T101



45 The plaintiff's back and left leg pain is now constant but fluctuates. The more

he does, the more pain he has in these areas. If he tries to do the mowing, it

takes him longer than before the incident.29 He only does it slowly once a

month and suffers increased pain thereafter. He does these types of

activities, as he needs to try and do at least something, otherwise he fears his

health and mental wellbeing will decline.

46 The plaintiff tries to stay active. That does not mean he is not in pain. He is in

pain all the time even though he is no longer working. Even the simplest

activity causes an increase in pain.30

47 The plaintiff is not frightened to have a go at physical activities such a moving

light metal sheets on a trailer and taking them to the scrap-yard with his

stepfather.31

48 The plaintiff has ongoing problems with sleep due to pain.

49 The plaintiff avoids taking medication as he has, in the past, tried stronger

pain medication and it has not helped him and negatively impacted on his

mental state. He uses anti-inflammatories now and then and overall, just puts

up with the pain as best he can.

50 The plaintiff last took some form of anti-inflammatory the week before the

hearing and prior thereto, had not taken them for a while. He continues to

have the occasional anti-inflammatory such as Voltaren and also Panado1.32

51 The plaintiff has physiotherapy once a fortnight with funding due to cease later

in the month.33 That treatment helps for a couple of days but sometimes the

plaintiff feels worse after it. He also continues to see Dr Gunawardana.

29 T34 30 T33 31 T36 32 T24 33 T45


52 The plaintiff has difficultly with prolonged driving, causing increased back and

left leg pain after 40 minutes to an hour. His pain is unpredictable and he

does not know when he will have a bad day or when he is limited to not doing

much, and just trying to lie down or sit down and reduce movement as much

as possible.

53 The plaintiff has not applied for any jobs since ceasing work with the

defendant in January 2016.

54 The plaintiff would like to work but he worries that realistically there is no

suitable work for him which he could do reliably or regularly due to his pain.

The plaintiff did not know who would take him on:

"I'm nearly 56 years of age. I have been in the traps and I have seen what goes on. I would not last- I have no computer skills or anything. I haven't got a high paying job just as yourself has, I'm just an honest bloke trying to do the right thing and I'm sorry ... There's nothing out [there] that I'm good at, there's nothing else I can do."34

55 The plaintiff would attempt jobs and put up with pain and do them.35

56 The plaintiff has never really thought about doing a computer course. He had

"screamed out for help and been pushed back every time". Whilst still with the

defendant there was not an offer, but a suggestion by NES in 2015 of a

course. He "agreed and followed the rules" but nothing ever eventuated so he

gave up.36 He was willing to give it a go. They told him they would get back

to him but no one ever did.

57 The plaintiff would be willing to attend the computer course at Narre Warren

suggested by NES but there is no guarantee he could complete it.37

58 The plaintiff was unsure as to who would fund the $214 computer course at

Narre Warren. He would give it a go but with a view to getting work, "good

34 T47 35 T67 36 T17 37 T66



luck to that one". He would have a crack at it if he knew there was a chance

of getting work. He was not trying to be negative about it.38

59 The plaintiff gets increased back and leg pain from prolonged sitting or

standing. Bending and twisting increases pain and even moreso if he has to

do it repetitively. The plaintiff agreed, as the vocational assessor Mr Janides

noted earlier this year, that his standing and sitting tolerance was less than 30

minutes.39

60 Whilst Mr Janides thought the plaintiff had very good interpersonal and

communications skills, the plaintiff did not understand what that really meant:

"Obviously I've got a good communication - I've never been praised like that

before."4°

61 The plaintiff started using a walking stick about six to eight months ago

because of balance problems as a result of pain down his lower back and left

leg. He uses it just when he goes out. He has had a couple of falls.41 No

doctor has suggested he use a stick.42

62 Bearing in mind the plaintiff's chronic back and leg pain, his vocational and

educational background, his very limited computer skills and lack of customer

service skills or experience, the unpredictability of his back and left leg pain,

and the fact that even when he is doing modified work he is still in constant

pain and struggling despite trying to do his best, he fears his earning capacity

has realistically been destroyed and at least very significantly compromised.

63 The plaintiff would now be unable to do the duties he undertook as the 2I0 as

he does not have the qualifications. He was given that role when the

warehouse manager left. Things would now be run differently. He could not

38 T63 39 T57 40 T59 41 T12 42 T36


do the job if tyre fitting was not required. He lacked the necessary computer

skills.43

64 The plaintiff does not recall telling doctors or vocational providers of his work

in this role." He initially agreed he could physically do this job provided he

had the proper skills but then said he did not know if he was physically

capable.45

65 The plaintiff has never been the boss of anyone. His only experience with

customer needs was in the tyre fitting side, not the office. He did not do much

paperwork in the 210 role. He had the help of the office staff and all he did

was organise stock:48 His trade skills are in tyres, not the auto field itself.47

66 In re-examination, the plaintiff explained that it was towards the end of 2001

when he worked in the warehouse when he "took it upon [himself]" to be a

210.48 This role lasted for under a month. During that time, he helped the

office staff pick the orders. He had nothing to do with the office side of

things.49

67 If the job he was doing at the time of retrenchment was still available, the

plaintiff would give it his best shot but there was no guarantee how long he

would last.5°

68 Whilst the plaintiff still holds an endorsed licence, he could not do a job similar

to his role at Premix because of the bouncing of the truck and his problems

with prolonged sitting, driving, even a car.51

43 T16 44 T48 45 T49 46 T59 47 T60 48 T69 49 T71 50 T32 51 T54



69 The plaintiff was cross-examined at length as to the roles suggested as

suitable for him in the 2017 vocational report. Whilst the plaintiff explained he

had no experience working in these roles and lacked the necessary computer

skills for some of the jobs, the plaintiff would try to do these jobs.

70 The plaintiff could probably do a number of the tasks of a service advisor in

the tyre auto field but was not too sure whether he could assess and estimate

damage and costs.52

71 The plaintiff would be prepared to try working as a donation. sorter.53

72 The plaintiff did not think he would be "trained too well" in taking samples of

grain, a task included in the role of a weighbridge officer, but he would be

willing to try that job.54 He thought he could do the work duties of a storage

consultant.55

73 The plaintiff does not have any sales experience. He would not know how to

look up stock, quantities, price and GST on the computer.56

74 In re-examination, the plaintiff had some doubts as to his ability to do the jobs

suggested. In terms of service advisor, the plaintiff has never been involved

in ordering parts and liaising with external organisations. He has never used

computer systems to produce invoices.57 He did not know what data

management involved. He has never been involved in vehicle repair.58

Lay evidence

75 The plaintiff's wife, Jeanette, swore an affidavit on 7 April 2017. She and the

plaintiff have been married since June 1986 and they have two children.

52 T61 53 T64 54 T65 55 166 56 156 57 171 58 T72


76 Jeanette confirmed that the plaintiff was a hardworking, non-complaining man

pre incident and his difficulties thereafter with constant pain, limping and

reduced input to housework, shopping and gardening. He has also had

problems with sleep, frustration and anger and difficulty sitting for prolonged

periods.

Treaters

77 Dr Gunawardana, the plaintiff's general practitioner from Doveton Medical

Centre, has reported on a number of occasions. He diagnosed an L5-S1 disc

prolapse with associated Si nerve root compression.

78 Dr Gunawardana referred the plaintiff to Dr Mark Patrick, rheumatologist.

79 Dr Patrick reported that he first saw the plaintiff in November 2014 because of

persistent back pain and the plaintiff's inability to maintain himself at work.

There had been two failed attempts to return to work, and the plaintiff was

suffering increasing pain with function radiating to the left leg with a burning

sensation down that leg, leaving him unable to continue.

80 Dr Patrick noted the plaintiff's symptoms improved in October 2014 after he

left work, but he described a constant pressure sensation in the left lumbar

spine, with some discomfort and heaviness into the left leg and down to the

knee, worse with standing and walking. Back, rather than leg symptoms,

were more troublesome, and the left leg moreso than the right.

81 Dr Patrick thought the plaintiff had mechanical symptoms, with left leg nerve

root compromise likely from recess stenosis. Given the plaintiff's ongoing

difficulties with a return to work, and back into leg pain, he thought a multi-

disciplinary restoration and functional capacity assessment was required, and

the plaintiff was referred to the Epworth and Dr Palit for assessment.

82 When he last saw the plaintiff on 14 September 2015, Dr Patrick thought his

prognosis would be guarded in terms of longer term requirement for modified



lifting, sustained back posture, standing and the like, given the multi-level

degenerative problems noted on the December 2013 MRI.

83 Dr Gunawardana also referred the plaintiff to Mr Maartens, neurologist.

84 Mr Maartens saw the plaintiff in April 2014, four weeks after his left L5-S1

epidural injection. Following this procedure, there was three hours' alleviation

of pain, but then it returned, possibly more severely, and at that stage, the

plaintiff complained of bilateral leg pain.

85 As the plaintiff did not want a repeat block, Mr Maartens offered him an L4-5

microdiscectomy, after which Mr Maartens thought he would be able to

consider returning to work within six weeks. The plaintiff was reluctant to

consider surgery, despite not wanting interventional pain therapy, and was

going to think about how to proceed.

86 The plaintiff was then seen on 9 July 2014, four weeks after the surgery was

cancelled. Mr Maartens asked him to recommence normal activities. The

plaintiff then maintained he had not suffered any leg pain and only had mild

stiffness in his low back.

87 At that stage, Mr Maartens advised he would support the plaintiff in being able

to return to work on restricted hours to see how he would cope, and the hours

could be increased in incremental fashion depending on his progress.

88 Mr Maartens would suggest the plaintiff return to work for four-hour stretches

starting three days a week, and then gradually build up, depending on his

progress. A review in three months was suggested.

89 On 29 October 2014, Mr Maartens reported that he arranged to see the

plaintiff routinely three months after the surgery was cancelled due to his

symptoms having resolved.


90 Mr Maartens then noted the plaintiff had apparently been doing very well until

recently, when in the course of his normal responsibilities, he developed a

recurrence of lower back and bilateral leg pain, mainly on the left, with burning

radiating down both thighs.

91 A repeat MRI scan was arranged to ascertain whether the plaintiff should be

considered for surgery. Mr Maartens noted obviously this was very

disappointing, given the plaintiff's improvement.

92 The plaintiff was last seen on 10 December 2014 with the results of the MRI

scan. Mr Maartens noted that scan really illustrated the value of

contemporaneous radiological investigation, as the L2-3 and L4-5 prolapse

appeared to have resolved, or was not apparent, and the plaintiff had a

significant prolapse at L5-S1 on the left which appeared to be catching the S1

nerve.

93 On examination, the plaintiff was complaining of leg and no back pain. The

left ankle jerk was absent, and there was same subjective weakness of

plantar flexion. Under these circumstances, Mr Maartens felt it important to try

to get confirmation of this pathology, and had arranged for an Si nerve root

block.

94 Dr Gunawardana referred the plaintiff to neurosurgeon, Mr Michael Wong,

who undertook a left L5-S1 laminectomy discectomy and rhizolysis on

6 February 2015.

95 On review on 15 July 2015, Mr Wong noted since he had last seen the plaintiff

he continued to improve. His left leg pain and dysesthesia had completely

resolved. However, the plaintiff complained of mild intermittent low back pain,

especially after heavy lifting. He noted the plaintiff did not require any

analgesic medication. Once again, Mr Wong advised the plaintiff to be careful

with heavy manual work. He also advised him to continue with physiotherapy



for at least six to twelve months to further improve his low back pain. No

further appointment was made.

96 Mr Wong thought the prognosis was good with further physiotherapy

treatment.

97 Dr Gunawardana has commented a number of times on the plaintiff's capacity

for work.

98 In July 2015, Dr Gunawardana reported he thought the plaintiff would never

be able to return to his pre-injury duties.

99 In February 2016, Dr Gunawardana noted the plaintiff had a series of returns

to work on modified duties, working two days a week, two hours a day, from

31 May to 1 July 2015, and thereafter six hours, five days a week, until 9

November 2015. The plaintiff then told him he could only work 45 minutes,

and he had time off until 18 December 2015.

100 Dr Gunawardana noted the plaintiff had been getting modified duties five

hours a day, five days a week, until then, but unfortunately, he was unfairly

retrenched on 29 January 2016.

101 At that stage, Dr Gunawardana considered the plaintiff had sustained a

serious and permanent back injury and was currently fit for modified duties,

with certificates to that effect.

102 In his report dated 11 July 2016, Dr Gunawardana confirmed he thought the

plaintiff sustained a permanent serious back injury and he would never be

able to do any job due to his injuries and education.

103 In his report of 3 April 2017, Dr Gunawardana simply stated the plaintiff was

unfit for pre-injury duties, either part or full time.


104 Further, in a report of 7 April 2017, Dr Gunawardana stated the plaintiff had a

permanent serious back injury and was unfit for any further employment, part

or full time.

105 The plaintiff's physiotherapist, Mr Ngo, from Endeavour Hills Physiotherapy,

most recently reported in April 2017.

106 Mr Ngo thought the plaintiff did not have any capacity for any form of work due

to ongoing recurrent lower back re-aggravation with his ADLs. In his view, the

plaintiff was unable to return to his previous employment due to his chronic

ongoing lower back pain, noting he had attempted to remain active at work on

light duties until his employment was terminated.

Certificates

107 On 2 November 2015, Dr O'Leary at Doveton Medical Centre certified:

"No lifting bobcat and truck tyres weighing 25 with regular breaks, and stretches. Advised 5 hours a day, 5 days a week, as per RTW plan."

108 On 7 March 2016, Dr Gunawardana certified the plaintiff as fit to work five

hours, five days a week, with a 25-kilogram lifting limit.

109 In an MLC total and permanent disability form following this examination on

7 March 2016, Dr Gunawardana answered "No" to the question whether the

patient would ever be able to return to any gainful employment, providing the

following reasons: "severe injury, had maximum injury, has chronic pain and

restricted movement."

Investigations

110 Following an x-ray of the lumbar spine in June 2009, it was reported alignment

was satisfactory. There were small osteophytes seen at several levels below

L3 associated with moderate disc space reduction.

111 Mr Ngo organised a CT scan of the lumbar spine in July 2009.

112 It was reported there was posterior annular bulging of the L3-4 and L4-5

intervertebral discs, and prominent left posterolateral margin osteophyte



formation at L5-S1 with associated narrowing of the exit foramen. Those

appearances had not altered significantly since the previous examination on 9

August 2004.

113 There was a CT scan of the lumbosacral spine organised by Dr Gunawardana

in October 2010. It was reported there was a broad-based disc bulge at L3-4

and L4-5 disc spaces, causing flattening of the thecal sac. There was

spondylosis at L5-S1 level, with a prominent left side osteophyte formation

causing severe narrowing of the left neural foramen and a suggestion of

pressure on the left exiting L5 nerve root.

114 Further CT scans were organised by Dr Gunawardana in October 2013 and

November 2013.

115 The most significant finding was the presence of a large extruded disc

fragment arising from the posterior aspect of L2-3 extending superiorly

beyond the midpoint of the L2 vertebral body.

116 Mr Maartens organised an MRI scan of the plaintiff's lumbar spine in

December 2013. The relevant finding was a L3-4 broad-based disc bulge

leading to marked spinal canal narrowing and contacting the exiting left L3

nerve root. At L2-3, there was a paracentral disc extrusion which extended

superiorly for 1.3 centimetres and caused right subarticular recess narrowing,

displacing the right traversing L3 nerve root.

117 Dr Gunawardana arranged a CT local anaesthetic injection in February 2014.

118 Mr Maartens organised an MRI scan of the lumbar spine in December 2014.

It was reported there was posterior displacement of the budding left Si nerve

root in the subarticular recess at L5-S1 secondary to the left lateral disc

protrusion. There was no gross neural foraminal stenosis at any level, and no

evidence of central canal stenosis at any level.


119 Dr Gunawardana organised a CT scan of the plaintiff's cervical spine in

December 2015.

120 It was reported there were prominent localised degenerative changes present

on the left posterolateral margin of the L5-S1 disc level with prominent lateral

marginal osteophyte formation and associated left posterior protrusion of the

L5-S1 intervertebral disc. Those features were causing some compression of

the adjacent thecal sac and left S1 nerve root. It was noted if this

corresponds with the level of the patient's symptoms, then it would be

amenable to a CT-guided epidural injection of steroid and local anaesthetic if

required.

Medico-legal evidence

121 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff in

January 2017.

122 The plaintiff complained to Mr Brownbill of low back pain that was present all

the time, with fluctuations sometimes being very severe. He had left leg pain

going down the side of the thigh and calf to the top of the foot, present all the

time, with fluctuations, and not helped by surgery. He also had a burning pain

in the front of his left thigh, which he was unsure when it started, but it comes

and goes.

123 Examination showed restriction of thoracolumbar spinal movements with

absence of the left ankle reflex.

124 Mr Brownbill thought that in the incident, the plaintiff sustained aggravation of

pre-existing degenerative changes, giving rise to back pain and, by nerve root

irritation, left leg pain.

125 Mr Brownbill considered in the future the plaintiff should avoid activities

involving heavy lifting, forced spinal mobility, repeated bending, or prolonged

sitting or standing. He thought the plaintiff would not be able to return in the

future to his described pre-injury employment.



126 Noting the described ongoing back and left leg pain, with activity exacerbation

and demonstrated multi-level lumbar spine degenerative changes, with his

work experience having always involved heavy physical activity, Mr Brownbill

considered it likely the plaintiff would not be able to continue with employment

for which he was suited in an ongoing or reliable fashion. If he were able to

find employment avoiding the activity restrictions referred to, the number of

hours the plaintiff could work would be dictated by his progress.

127 Mr Kenneth Brearley, general surgeon, examined the plaintiff in February

2017.

128 The plaintiff told Mr Brearley his symptoms are gradually worsening. There

was some radiation of back pain down the left leg to the toes, present most of

the time, as was back pain.

129 The plaintiff advised he was quite unfit for any work because of his back pain,

noting his employment had been always driving trucks or fitting tyres, and he

certainly could not do that type of work now. Further, he could not sit long

enough to do a sedentary job.

130 On examination, there was marked restriction of lumbar movements, and

generalised tenderness. The deep reflexes were present but weak, and

sensation was normal. Straight leg raising was 70 degrees on the right and

50 degrees on the left.

131 Mr Brearley diagnosed mechanical lumbar back pain and left leg pain

resulting from damage and prolapse of the L2-3 intervertebral disc and

aggravation of pre-existing degenerative changes, particularly at L5-S1. He

noted that unfortunately, symptoms have to a large extent continued since the

surgery.

132 Following the very specific incident injury there had been a serious

deterioration of the plaintiff's condition, with ongoing low back pain and also


intermittent but frequent left leg pain. As a result, Mr Brearley thought the

plaintiff was quite unable to do any work.

133 Mr Brearley noted the plaintiff is accustomed to doing heavy work only, and in

particular tyre-fitting. He has no experience at all in office or administrative

type work, and there is no work which would be suitable for him, given his

chronic low back pain. Mr Brearley did not think the plaintiff would be able to

work again in the future and was not suitable for rehabilitation or retraining.

134 Mr Brearley commented there was no work which would be suitable for the

plaintiff either part time or full time. He thought the plaintiff completely

incapable of any work. The plaintiff could not work within restrictions because

of the severity of his back condition. Certainly, in Mr Brearley's view, the

plaintiff was not suitable for rehabilitation or retraining.

135 Dr Joseph Slesenger, specialist occupational physician, examined the plaintiff

in April 2017.

136 The plaintiff then described ongoing lumbar spine pain at a level of five to six

out of ten, and occasionally to eight. He described the pain as being

pulsating, sharp, and a background ache. His leg pain was similar. There

was a tingling in his left leg and it was prone to collapsing.

137 The plaintiff described a sitting and standing tolerance of 20 to 30 minutes,

walking on even ground for 30 to 40 minutes, and driving between 20 to 30

minutes. He advised his symptoms were variable and unpredictable,

sometimes aggravated by activity, but at other times, could deteriorate

spontaneously. On the whole, he had more bad than good days.

138 On examination of the lumbar spine, there was tenderness and restriction of

movement. The plaintiff walked with a mild left-sided limp, using a walking

stick in his left hand.

VCC:DC/LWAS 21 JUDGMENT


139 Dr Slesenger diagnosed mechanical injury of the lumbar spine, aggravation of

degenerative disease of the lumbar spine resulting in surgery, and chronic

lower back pain with left radicular symptoms and evidence of radiculopathy.

140 Dr Slesenger thought occupational exposures in the form of the 2004 fall, the

incident injury, and the general manual handling requirements of the plaintiff's

job, were a plausible cause of the impairment and remained a significant

contributing factor to his current incapacity and disability.

141 Taking into account the plaintiff's current symptoms, his functional limitations,

his age of fifty-five, his residential location of Doveton, the unpredictable

nature of his residual impairment and disability, his past employment history,

his qualifications and his computer skills, Dr Slesenger had reservations about

the plaintiff returning to work as suggested by HealtheWork in its March 2017

report. He noted the plaintiff's current level of symptoms, his functional

limitations, and the unpredictable nature of his symptoms were relevant in this

regard.

142 Dr Slesenger thought the plaintiff could not do his pre-injury role as a tyre

fitter, quoting the manual handling and postural requirements of this role.

143 In Dr Slesenger's view, the plaintiff could not return to work as a service

provider, tyre/auto field, as the job would require inspecting vehicles, thus

requiring him to stand for prolonged periods, and bend and squat while doing

so. Further, the job would require good computer skills, and, whilst the

plaintiff has experience in tyre fitting, he does not have experience in general

auto repairs or bodywork.

144 Dr Slesenger thought the job of a donation sorter would require sorting of

clothes, receiving, packing, and racking of stock and involve manual handling

outside the plaintiff's limits.


145 Further, the job of a recycle attendant/weighbridge officer was likely to require

computer skills and also prolonged standing, and may require the plaintiff to

climb in and out of trucks to inspect them. He may also be required to operate

a console. Dr Slesenger noted the plaintiff has no experience in this role, and

the postural demands are likely to be outside his capacity. Further, manual

handling is likely to be required.

146 As a storage consultant, the plaintiff's job would include administrative tasks

including EFTPOS, computer, and would also require inspection of storage

areas that may require him to stand for prolonged periods and to bend and

twist while carrying out inspections. Dr Slesenger noted the plaintiff does not

have experience with this role, nor does he have the necessary computer

skills.

147 Dr Slesenger considered the plaintiff would not be able to work as a sales

assistant, as the job tasks are likely to require manual handling of incoming

deliveries or customer purchases that are likely to be outside his capacity.

148 Dr Slesenger noted work as a spare parts interpreter would require the

plaintiff to access computerised databases, prepare invoices, and pack and

despatch ordered parts. He thought the job tasks are likely to lie outside the

plaintiff's capacity, and the postural demands would also pose a problem.

149 Dr Slesenger noted the job of service adviser involves customer service in the

service department of a motor vehicle dealership. This would require

overseeing a team of advisers and mechanics. The plaintiff has demonstrated

no capacity to manage teams of autoworkers. He has no experience in

general auto repair, and is limited to tyre fitting, and he does not have the

appropriate computer skills.

150 The job of an information clerk would require the plaintiff to access information

about products via a computer database, to communicate with members of



the public, and to respond to written or telephone enquiries. He has no

experience in this role and lacks the necessary computer skills.

151 As a ticket collector/usher, the plaintiff is likely to be required to stand for

prolonged periods and also likely to be required to clean the theatre. He also

may be required to receive incoming deliveries and restock storage areas. He

has got no experience within this role.

152 The job of a mail clerk would require manual handling of bags of letters and

other deliveries and was likely to be outside the plaintiff's capacity.

153 Work as a filing clerk would require the plaintiff to access databases and

storage areas to access documents and files. He may be required to

repetitively bend and twist while working in the filing records area. He may be

required to manually handle boxes of file documents which may be outside his

capacity. He does not have any experience in this job, nor any computer

skills.

154 Dr Slesenger thought the plaintiff should be referred to a pain specialist to

consider whether he is a candidate for a more holistic approach to his

impairment and stability.

The Defendant's medical evidence

155 Mr Matthew Hope, orthopaedic surgeon, examined the plaintiff in September

2015.

156 The plaintiff then reported lower lumbar back pain, predominantly left sided,

rated as four out of ten at rest. It was associated with numbness in the back,

or burning sensations in the left leg.

157 At that stage, the plaintiff reported he was not working at his full capacity,

although completing full duties. Lifting gear had been provided and had

helped, and he avoided any heavy lifting. He experienced back pain when

bending.


158 Mr Hope thought the continuation of physiotherapy was unlikely to affect the

plaintiffs eventual outcome.

159 Mr Hope diagnosed lumbar degeneration and intervertebral disc disease

requiring L5-S1 left nerve root decompression.

160 Mr Hope noted the plaintiff had returned to full duties but not full hours. He

thought it likely the current hours would be required to be maintained, in view

of the fact the plaintiff felt he was not functioning at 100 per cent.

161 Given the nature of the plaintiff's pre-existing disease, recent injury, and the

requirements of his occupation, maintenance at the current hours would be

appropriate. Mr Hope thought increasing hours was likely to result in

increasing symptoms and likely to be detrimental to the plaintiff's ongoing

ability to maintain work.

162 Mr Hope noted a return to work program indicated by 31 August 2015 the

plaintiff would be completing 20 hours, five hours over four days, with no work

on Wednesdays. He had progressed beyond that to complete work on five

days a week.

163 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff in

December 2015.

164 The plaintiff reported his back was uncomfortable and sore. He had pain

down both legs, and a hot feeling in the right foot. His legs ached

intermittently. He acknowledged the left-sided sciatica had disappeared after

the surgery but now seemed to be recurring. He had good and bad days, and

recently had a week off work. His only medication was the occasional

Panadol.

165 On examination, there was moderate restriction of thoracolumbar movements,

with definite spasm. There was 2 centimetres of wasting on the left thigh.

Both ankle reflexes were inactive.



166 Mr Shannon thought the prognosis was the back would be vulnerable to

further injury.

167 Mr Shannon thought the clinical findings would certainly be consistent with a

lumbosacral disc prolapse and radiculopathy. As the examination was for the

purposes of an AMA assessment, he did not comment as to the plaintiff's

work capacity.

168 Dr Dominic Yong, occupational physician, examined the plaintiff in March

2017.

169 The plaintiff then complained of constant low back pain. His left leg felt weak.

He felt he had a hot feeling in his upper leg, and numbness and ache in his

foot. He was not taking any medication.

170 The plaintiff told Dr Yong he had to vary his posture regularly between sitting

and standing. He walked for 30 minutes with a walking stick when out of the

house, and could drive for 30 minutes.

171 Dr Yong thought there was the presence of lumbar dysfunction with a reported

increase in symptoms, including having had a fall. In his view, the plaintiff

required further assessment, including an MRI scan of the lumbosacral spine

to exclude a recurrent neuropathic condition.

172 Dr Yong considered the work-related injury has not ceased, and still requires

further investigation and treatment.

173 Dr Yong thought the plaintiff would have the capacity to perform the jobs

suggested in the AMS of 13 July 201559 within the following restrictions:

O avoid repeated bending and twisting to the back

* avoid repeated firm pushing or pulling tasks

59 See paragraph 183 of this Judgment

VCC:DC/LM/AS


• vary posture regularly between sitting, standing, and walking

• avoid lifting more than 3 kilograms on a repeated basis; and

• reduction in working hours.

174 In this regard, the following factors were relevant:

• the current diagnosis

• the period of time since surgery

• the requirement to have further investigations

• the requirement to be as active as possible within the limit of pain while having

further scans; and

• the ability to work restricted duties and hours until employment was

terminated in January 2016.

175 Dr Yong thought the job of sales assistant would require individual

assessment to determine if it complied with the recommended restrictions. He

did not think work as a spare parts interpreter was suitable for the plaintiff, nor

was the job of mail clerk.

176 In Dr Yong's view, the service adviser/information clerk, ticket collector/usher,

and filing clerk roles would be suitable.

177 Dr Yong provided a supplementary report dealing with the jobs suggested in

the March 2017 vocational report.

178 Dr Yong noted the job of service adviser required minimal manual handling

and complied with his recommendations, and would be considered suitable.

179 Dr Yong thought the donation sorter job would require individual assessment.

He considered the role of a recycle attendant/weighbridge officer was suitable,

as was that of a storage consultant.



180 Dr Yong thought a graduated return to work program was indicated. This

would initially involve working reduced hours such as three-hour shifts, three

days a week. The initial aim would be to return back to working hours at the

time of ceasing employment, namely five-hour shifts for five days. The aim

would be for that to happen over three to four months, then the plaintiff would

require reassessment, and he could have the further investigations that were

necessary.

Treaters

181 Mr Maartens wrote to Dr Gunawardana in June 2014 advising that the plaintiff

had been asymptomatic for a fortnight before the proposed surgery and as

such the surgery was cancelled or at least delayed.

182 The notes from the Doveton Medical Centre indicate the plaintiff attended six

times with back complaints following termination of his employment in

February 2016.

Vocational evidence

183 An NES vocational report of 13 July 2015 identified suitable employment

options in order of priority as follows:

• sales assistant ($908 per week)

• spare parts interpreter ($1,087 per week)

• service adviser/manager (no figures)

• enquiry/customer service officer/ desk clerk ($1,077 per week)

• ticket collector or usher ($833 per week)

• mail clerk ($925 per week)

• records clerk ($1,214 per week).

184 Mr Janides, vocational/occupational rehabilitation consultant from Healthe

Work provided a vocational labour market analysis report of 10 March 2017.

185 When interviewed, the plaintiff reported his pain level at seven out of ten. He

had a standing and sifting tolerance of half an hour. He walked slowly, and

VCC:DC/L WAS 28 JUDGMENT Conyers v Highway Tyre Service Pty Ltd

bent and squatted with care. He drove locally. He was not then taking any

medication.

186 The plaintiff agreed that his reading, writing and speaking skills were above

average, and his computer skills were below average.

187 Mr Janides noted the plaintiff's current transferable skills were in tyre

fitting/auto, communication, computers, supervision/management, customer

service, admin/clerical and trade skills.

188 The following jobs were suggested as suitable for the plaintiff:

• service adviser, tyre/auto field ($50 to $60,000 per annum)

• donation sorter (an hourly rate of $21 to $31.37, or $39,324 to $63,744 per

annum)

• recycle attendant/weighbridge operator ($18 to $22 per hour)

• storage attendant ($21 to $26.08 per hour).

Overview

189 As counsel for the plaintiff submitted, by conceding pain and suffering,

indirectly the defendant has acknowledged that the plaintiff suffers ongoing

back and left leg pain and that the consequences of his lumbar impairment

are more than significant or marked.66

190 It is difficult in those circumstances for the defendant to argue that the

plaintiff's pain is not significant, relying on his lack of medical treatment and

medication and be critical of the plaintiff's failure to seek further treatment

from Mr Wong after the surgery had been of little assistance.61

191 The issue in dispute is simply whether the plaintiff can establish the requisite

loss of earning capacity of 40 per cent on a permanent basis.

60 T100 61 T83; T109



Counsel for the plaintiff also submitted that the plaintiff should not be regarded

31 VR 1 at paragraph [12]

198

62 (2010) 63 T85 64 T94 65 T99

192 Whilst pain and suffering was conceded, there were some credit issues raised

by counsel for the defendant in terms of the plaintiff's motivation to return to

work and his real capacity for suitable employment.

Credit

193 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:62

"... the weight to be attached to the plaintiff's account of the pain experience will, of course, depend upon an assessment of the plaintiff's credibility."

194 It was submitted by counsel for the defendant the plaintiff had the capacity to

embellish, saying the first thing that came into his head rather than think about

the question and answer in a truthful and proper fashion. There were many

times when the plaintiff wanted to tell the Court something completely different

rather than answering the question.63

195 It was submitted the plaintiff always had some excuse for propositions that

were put to him and that he knew full well he was not answering the questions

he was asked, and acknowledged that was the case.64

196 Particular examples relied upon were the plaintiff's evidence as to why he

ceased voluntary work with the Salvation Army and also, as to the

cancellation of surgery by Mr Maartens.

197 Counsel for the plaintiff accepted there were a number of occasions when the

plaintiff's answers did not directly respond to the question asked, but it was

submitted that was not a credit point. The plaintiff was cross-examined for

about two hours and it was hardly surprising during that time he felt under

attack and wanted to say something to defend himself, which was often the

case with plaintiffs. However, that did not mean the plaintiff was dishonest or

exaggerating 65


as an embellisher, trying to overstate his symptoms or disability. This was not

suggested by any doctor. Further, the index to the Defendant's Court Book

referred to surveillance which was undertaken, but no film was shown. In

those circumstances, an inference should be drawn that the film would not

have assisted the defendant's case.

199 It was also submitted the plaintiff's effort to continue working for about two and

a quarter years after the injury was impressive, and entirely inconsistent with

him being an exaggerator or a person trying to maximise any return from his

injury. Quite the contrary, despite his injury, the plaintiff just wanted to keep

working .66

200 In my view, the plaintiff was a truthful, although somewhat anxious witness.

His lack of response to some questions did not indicate a lack of candour on

his part but a nervousness being in the witness box. I consider the plaintiff is

a motivated, hardworking man whose work ethic was clearly demonstrated by

his attempts to continue work post injury and also after the surgery.

Loss of earning capacity

201 In addition to satisfying the narrative requirements to obtain leave in relation to

loss of earning capacity, the plaintiff must also establish that —

(a) at the date of the hearing, he has a loss of earning capacity of 40 per

cent or more — s134AB(38)(e)(i); and also

(b) after the date of hearing, the relevant loss of earning capacity will

continue permanently — s134AB(38)(e)(ii).

202 The measurement of loss of earning capacity is set out in paragraph (f) which

requires a comparison between:

(i) "without injury" earnings; and

(ii) "after injury" earnings.

66 T100



203 The former must be calculated by reference to the six-year period specified in

5134AB(38)(f).

204 "Without injury" earnings consist of the gross income (expressed at an annual

rate) that the worker was earning or was capable of earning from personal

exertion or would have earned or would have been capable of earning from

personal exertion had the injury not occurred.

205 It is to be calculated by reference to that part of the period within three years

before and three years after the injury as most fairly reflects the worker's

earning capacity.

206 The plaintiff carries the onus of proof in relation to economic loss and

particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and

(g) therein.67

207 I am therefore required to determine a "without injury" earnings figure, and

submissions were made by counsel in this respect. The parties agreed the

"without injury" earnings figure is $928.00, 60 per cent of which is S556.00.

208 The plaintiff's case is that he has no capacity for suitable employment. If that

was not accepted, it was submitted the Court should not be satisfied the

plaintiff has the capacity to work more than nine hours a week as Dr Wong

opined 68

The Plaintiff's view of his work capacity

209 The plaintiff does not consider he has the capacity to return to work because

of his chronic back and left leg pain and related restrictions. His skills are

limited, having worked predominantly in tyre fitting work. He struggled whilst

even performing modified duties. Further, his back pain is unpredictable, thus

making him a potentially unreliable employee, as Mr Brownbill confirmed.69

67 Barwon Spinners & Ors v Podolak (supra) 68 T112 69 T104

VCC:DC/LM/AS


210 The plaintiff's views as to his ability to perform the jobs suggested by

Healthework discussed later.7°

Treaters' views

211 Whilst it is unclear why, following examination stated to be on 7 March 2016,

Dr Gunawardana set out in the MLC Total and Permanent Disability Claim

Form of June 2016 that the plaintiff was unable to ever return to any gainful

employment and in a WorkCover certificate, relating to that examination, he

certified the plaintiff was fit for work five hours a day, five days a week,71 since

at least July 2016, Dr Gunawardana has considered the plaintiff does not

have a capacity for suitable employment as he confirmed in his April 2017

reports.72

212 I accept that the general practitioner's current opinion should be given

considerable weight given his extensive and long involvement with the

plaintiff." Leave was not sought to cross-examine Dr Gunawardana to clarify

any uncertainty about his certificates.

213 Whilst some criticism was made by counsel for the defendant as to the lack of

a path of reasoning in Dr Gunawardana's reports explaining his conclusion

that the plaintiff is now totally disabled having not worked since January 2016

and being certified fit for modified duties at that time, 74 I accept that the

plaintiff's condition has progressively deteriorated as counsel for the plaintiff

su bmitted .75

214 It was apparent from November 2015 that the plaintiff's condition was

deteriorating when he told his general practitioner he could only work for 45

minutes.76 He was not, in fact, managing well at work until he ceased in

January 2016, as supported by a number of the clinical entries up to

70 Paragraph 242 of this Judgment 71 T78 72 T110 73 T110. In his July 2016 report, Dr Gunawardana stated the plaintiff will never be able to work 74 T80; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 75 T105, T126 76 T108



December 2015.77 His job was a made up one of part-time modified hours,

indicated by the letter of termination in which the defendant advised that those

duties were no longer available to him and there was no other suitable work

available.78

215 By the end of 2015, the plaintiff just was not able to cope working any more

than five hours, five days a week, and in those circumstances, the following

year, Dr Gunawardana certified him totally unfit for work.79

216 The plaintiff continued to attend his general practitioner complaining of back

pain during 2016 as the notes indicated.

Medico-legal evidence

217 Whilst Mr Brownbill and Mr Brearley did not specifically assess the suggested

jobs,8° they both considered the plaintiff has no capacity for suitable

employment, given his ongoing back and left leg pain and his limited work

experience having always been involved in heavy physical activity.81

218 Having carried out an assessment of all the suggested jobs, Dr Slesenger

thought they were unsuitable for the plaintiff for a variety of reasons.

219 Whilst counsel for the defendant criticised Dr Slesenger's opinion on a

number of grounds,82 his view that the suggested jobs were unsuitable for the

plaintiff was explained clearly and comprehensively.

220 Having considered the suggested jobs, Dr Yong noted the job of service

adviser required minimal manual handling and complied with his

recommendations, and would be considered suitable as would the role of a

recycle attendant/weighbridge officer and a storage consultant. The donation

sorter job would require individual assessment

77 T102 78 T103 79 T108 80 T91, T93 81 T111 82 T91, T93

VCC:DC/LIWAS 34 JUDGMENT Conyers v Highway Tyre Service Pty Ltd

226

83 T99 84 T83 85 T113

VCC:DC/LM/AS

221 In relation to the suitable roles, Dr Yong thought a graduated return to work

program was indicated, commencing with three-hour shifts for three days,

hoping to get to 25 hours, being the working hours at the time the plaintiff's

employment ceased.

222 Importantly, Dr Yong never actually said the plaintiff could go back to full-time

work, nor that he could go back to working 25 hours. No doctor, in this case,

is currently of the view the plaintiff is able to work 25 hours per week.83

The plaintiff's capacity for the suggested suitable jobs

223 Counsel for the defendant submitted the plaintiff had simply not looked for

work despite agreeing with Mr Janides from Healthework ,that he had a

number of transferable skills.84

224 Counsel for the plaintiff submitted that all factors set out in s5 of the Act as to

suitable employment weighed against any of the jobs proposed by the

defendant as being suitable.85

225 As s5 sets out, suitable employment, in relation to a worker, means

employment in work for which the worker is currently suited—

(a) having regard to the following—

(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;

It was submitted the fact that the plaintiff could do one or more of the aspects


of the physical aspects of a particular job did not, of itself, mean the job

became suitable employment. This was the case with a number of suggested

jobs. One must consider the entirety of the applicant's relevant personal

circumstances and not just focus on the particular physical tasks of generic

Jobs •86

227 Counsel for the defendant submitted, at the very least, the plaintiff could do

the service adviser job in the tyre field, for which retraining was very limited —

a computer course costing $214. It was submitted there were no earth-

shattering skills or earth-shattering tasks to be performed in that role, and they

were pretty straightforward.87

228 Sixty per cent of either figure in the suggested range of salary for this role —

$50,000 or $60,000 — exceeded the threshold.88

229 Further, it was submitted the plaintiff could do the job of a warehouse

manager or 2IC, and that there were no qualifications required for that role.89

230 Counsel for the plaintiff submitted these roles were unsuitable for the plaintiff

in a number of respects. The plaintiff's demeanour was relevant to whether

he could do jobs of this nature requiring people skills. It was submitted the

plaintiff presented as an unsophisticated man with limited interpersonal and

communication skills and who, on any view, had always been heavily reliant

on his physical fitness and skills for his employability.99

231 The plaintiff had worked for thirty-seven years in his trade of a tyre fitter, and

of his thirteen years with the defendant, more than twelve were on the shop

floor changing tyres, and the balance was in the warehouse picking orders.

232 It was submitted that if the plaintiff had the capacity to move up to the office

86 T114, Ashley JA said in Richter v Driscoll (supra) 87 T84 88 T90 89 T93 90 T101


into an administrative or managerial role it would have happened years ago at

some point in the thirty-seven years before he was injured.91 The chances of

it happening now are totally unrealistic because of his injury and the fact he

does not have the appropriate capacity, skills or aptitude for that sort of

promotion.92

233 Further, the plaintiff has never done any assessing and estimating damages

and costs, ordering parts, liaising with external organisations, producing

invoices, debt collection, and administrative tasks such as database

management and maintaining customer information. He does not have the

appropriate computer skills, nor could he acquire them by training. He lacks

the interpersonal communication skills required for the job.93 In addition work

as a service advisor/warehouse supervisor involved standing and walking

around the work site, which is a problem, given the plaintiff's back pain and

balance problems.94

234 Counsel for the plaintiff submitted that the Healthework report provided no

evidence that such a job exists in the tyre industry or is available part time in

that industry. This was the sort of generic information which Richter v

Drisco1195 said the Court had to be so careful about.96

235 Further, it was submitted the two actual jobs that were described in the

Healthework report were plainly unsuitable, as they required a knowledge of

vehicle mechanics and repair which the plaintiff did not possess.97

236 In my view, these jobs involving administrative and management roles are not

suitable employment for the plaintiff for the reasons advanced by counsel for

the plaintiff.

91 T101 92 T102 93 T116 94 T117 95 Supra 96 T117 97 T118



237 Counsel for the plaintiff submitted the job of donation sorter was not suitable

because of the plaintiff's postural problems. There was no guarantee that he

would only have to handle light items, and it was also a job that required good

communication skills. In any event, Dr Yong did not think the role was

suitable and the Healthework report described it as involving "physical

demands".98

238 In terms of the range of wage rates provided for this job, $39,324 to $63,744

or $21.00 to $30.37 per hour for a casual, counsel for the plaintiff submitted it

was appropriate to look at the earnings of a part-time worker on casual rates.

It would have to be assumed that when someone has never done the job

before, they would come in at the lower end.99

239 It was submitted the role of weighbridge operator was unsuitable, as the

plaintiff had no experience in that field, and it was not clear what sort of

manual handling would be involved. Again, in the Healthework report, the

notation that the worker would have to be able to cope with the "physical

demands" of the job made it hard to conclude it was a very light job.1°9

240 The same comments were made in terms of the unsuitability of the job as a

storage consultant.191

241 Taking into account all the evidence, given the plaintiff's chronic back and left

leg pain, his difficulties performing lighter work after the incident both pre and

post surgery, the factors set out in s5 of the Act and the plaintiff's presentation

in the witness box of a relatively unsophisticated man as his counsel

described,192 I am not satisfied the plaintiff has the capacity to work in any of

the suggested jobs or any other suitable employment where he would earn in

excess of $556 per week on a permanent basis.

98 T120 99 T120 100 T121 101 T122 102 See paragraph 229 of this Judgment

VCC:DC/LM/AS


242 In these circumstances, I find the plaintiff has suffered the requisite loss of

earning capacity of 40%.

243 I am also required to consider issues of retraining and rehabilitation pursuant

to ss(g).

244 Counsel for the defendant submitted the plaintiff had failed to discharge the

onus under ss(g), because he had not availed himself of the computer

course.1 03

245 I do not accept however that a $214 computer course would give the plaintiff

the skills he needs to perform the suggested jobs involving database

management, stock control on the computer and other related computer

tasks. I accept there was simply no evidence that it was realistic or possible

for the plaintiff to be trained up to do duties of this nature.104

246 Further, Mr Brearley commented specifically that the plaintiff was not suitable

for rehabilitation or retraining.

247 In light of my findings as to the plaintiff's impairment and his incapacity for

employment, I am satisfied there is no rehabilitation or retraining that would be

appropriate to be undertaken by the plaintiff which would alter the situation

that he has a permanent loss of earning capacity of 40 per cent or more. As

rehabilitation and retraining have nothing to offer the plaintiff in terms of his

capacity for employment, the plaintiff has satisfied the requirements of

s134AB(38)(g).

248 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for

loss of earning capacity.

103 T96 104 T114


in the county court of victoria revised at melbourne ... · impose specific burdens in relation to...

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