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County Court of Victoria |
Last Updated: 4 February 2016
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Revised
Not Restricted Suitable for Publication |
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury application – Pain and Suffering – Economic loss –
Nature of employment relationship – Current capacity for work -
Suitable employment.
Legislation Cited: Accident Compensation Act 1985 s134AB
Cases Cited: Hollis v Vabu [2001] HCA 44; (2001) 207 CLR 21; Elazac Pty Ltd v Shirreff [2011]
VSCA 405; Advanced Wire and Cable Pty Ltd v Abdulle [2009]
VSCA 170.
Judgment: Leave granted in respect of economic loss and pain and suffering.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Maurice Blackburn
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Ms M Pilipasidis
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For the Defendant |
Russell Kennedy |
1 This is an application pursuant to s134AB(37)(a) of the Accident Compensation Act 1985 (“the Act”) by the Plaintiff for leave to commence a proceeding for damages in respect of the economic loss consequences and pain and suffering consequences of an injury suffered by the plaintiff whilst working as a team leader for AJ & EA Berry Pty Ltd (“AJ Berry”), a synthetic turf installation company, on 17 June 2010. The injury relied upon by the plaintiff is an injury sustained to his lumbar spine, in particular a disc bulge/protrusion at L5/S1. The body function relied upon by the Plaintiff is his spine.
2 It is convenient to deal at the outset with an issue that arose in the proceeding regarding whether the Plaintiff was at the time of injury an employee of AJ Berry or an independent contractor. In its submissions regarding the Plaintiff’s earning capacity, the Defendant submitted that the Plaintiff was an independent contractor.
3 In support of this submission, the Defendant relied on the tax returns of the plaintiff for the financial years 2008, 2009, 2010 and 2011. It was submitted that the income earned by the Plaintiff was described as business income in the tax returns and that the level and nature of the deductions claimed by the Plaintiff demonstrated that he was in fact an independent contractor.
4 In Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21, the High Court of Australia concluded that to determine whether or not a worker is an independent contractor or employee, it is necessary for the Court to consider both the control test as previously understood by the Courts and further it is necessary to examine the totality of the relationship between the parties.[1]
5 In this proceeding, the Plaintiff gave the following uncontested evidence –
(i) He was paid a fixed hourly rate that was non-negotiable.[2]
(ii) AJ Berry paid the public liability insurance.[3]
(iii) AJ Berry provided all the equipment and materials for the work carried out by the Plaintiff.[4]
(iv) AJ Berry directed him which jobs to attend and their location.[5]
(v) The Plaintiff wore an AJ Berry uniform.[6]
(vi) All of the Plaintiff’s work was for AJ Berry.[7]
(vii) Allan Berry was the owner of AJ Berry and he dealt with all of the customers.[8]
(viii) The Plaintiff had no employees of his own.[9]
(ix) All of the work performed by the Plaintiff was manual work.[10]
(x) The Plaintiff did not choose the jobs he worked on.[11]
(xi) The Plaintiff was not paid for sick leave or superannuation.[12]
(xii) The Plaintiff did not charge AJ Berry GST but did pay his own income tax.[13]
6 In my opinion, it is clear from an examination of the totality of the relationship between the Plaintiff and AJ Berry (hereinafter “the employer”), that the Plaintiff was an employee at the time that he was injured.
7 It is not in issue in the proceeding that on 17 June 2010, the Plaintiff sustained an injury to his lumbar spine whilst lifting a roll of synthetic turf during the course of his duties with the employer. The particular injury relied upon is a lumbosacral disc prolapse at L5/S1 and as I have already observed the body function relied upon by the Plaintiff, in the application, is his spine.
8 It is accepted by the parties that in the event that I am satisfied that leave ought to be granted to commence a proceeding for the economic loss consequences of the Plaintiff’s injury, I do not have to further consider whether to grant leave in respect of the pain and suffering consequences of the impairment of his bodily function.
9 In the proceeding, the Plaintiff has filed two affidavits sworn by him on 7 May 2014 and 19 October 2015 respectively. In addition, the Plaintiff attended the hearing of the matter, gave evidence and was cross-examined. Otherwise the parties relied upon the medical and vocational material tendered by them.
10 At the time of his injury, the Plaintiff was employed as a team leader installing synthetic turf at various sporting facilities throughout Australia. His duties involved rolling and lifting heavy pieces of synthetic turf, shovelling sand and lifting and moving other building materials.
11 Prior to commencing employment with the employer on 5 June 2006, the plaintiff had worked as a warehouse manager for five years and in a café and a pizza shop. He had only been educated to Year 10 level and currently has limited literacy and numeracy skills. His computer skills may properly be described as rudimentary.
12 Immediately following his injury, the Plaintiff consulted his general practitioner, Dr Gary Silver, and had a CT scan of his lower back on 18 June 2010. That scan revealed:
“Focal disc protrusion extrusions to the right of the mid line are seen at the L5/S1 level with marked displacement of the right S1 nerve root sheath.”
And further:
“Conclusion:Large extruded sequested disc fragment arising from the L5/S1 disc to the right of the mid line with marked compromise of the right S1 nerve root sheath.”
13 A CT scan conducted on 3 March 2011 revealed:
“Conclusion:Fairly large central disc bulge/protrusion at the L5/S1 level with central thecal sac displacement. The right sided disc extension/protrusion seen on the previous study of 18 June 2010 has partially resolved. However there is still mild displacement of both S1 nerve root sheaths at this level.”
14 An MRI scan conducted on 6 June 2011 revealed:
“Disc desiccation L5/S1 associated with minor central disc bulging and annular disruption.”
15 An MRI scan conducted on 29 August 2012 revealed:
“Desiccation of the L5/S1 disc is associated with minor reduction in disc space height, minor central disc bulging, minimal thecal encroachment, no definite nerve root compression. The remaining disc levels are relatively normal.”
16 Finally, an MRI scan conducted on 26 August 2015 revealed:
“The L5/S1 disc is degenerate without significant compromise to the central canal. No extruded or sequested disc fragment is detected at any level and there are no features of lateral research or exist foramen compromise on either side of the mid and lower lumbar regions. No nerve compromise beyond the exit foramen is seen on the right side.”
17 The results of the final MRI scan further reveal:
“No clear cause for the right sided sciatic symptoms is seen.”
18 On 14 November 2012, Mr Craig Timms, Neurosurgeon, prepared a report in respect of the Plaintiff’s condition, having examined him on three occasions and also having examined the results of the CT and MRI scans that had been conducted up to that date. Mr Timms concluded the following:
“My final conclusion regarding Mr Jeremy Marotti is that he injured his back whilst at work. A lifting type mechanism which has caused his low back pain and right leg sciatica with leg weakness. He has an L5/S1 disc injury with bulge at this level which I believe is most likely the cause of his symptoms. Currently he has been treated with physiotherapy and steroid injections. However, his symptoms have not improved; if anything, in fact have worsened. He has persistent disc bulge at L5/S1 and if his symptoms do not improve or worsen further, he may require further surgical intervention. Mr Marotti remains completely incapacitated.”
19 On 23 November 2015, Mr Timms reached the following conclusion after reviewing the plaintiff and the most recent MRI scan of his injury:
“He has a lumbar L5/S1 disc injury on MRI imaging. It is my opinion that he does not require at this stage any neurosurgical operative intervention but prolonged courses of physiotherapy, massage and regular intermittent use of epidural cortisone injections. Mr Marotti remains incapacitated due to his symptoms. Mr Marotti’s condition has stabilised.”
20 Dr Gary Silver, the Plaintiff’s General Practitioner, has treated him since the injury and prescribed painkilling and sleeping medication for him. A number of medical reports of Dr Silver were tendered in evidence setting out the Plaintiff’s symptoms following the injury. I do not propose to summarise all of those reports. They, however, demonstrate the ongoing nature of the Plaintiff’s incapacity.
21 On 15 June 2015, Dr Silver reported as follows:
“He has consistent lumbar back pain which is present all the time and has right lower leg pain some of the time. About 70 per cent of his pain experienced is in the back and 30 per cent in the right lower limb. He uses pain relief, usually Mersyndol Forte, for this on about one occasion a week when the pain gets more severe but otherwise tends to stay away from pain relief. His sleep is affected with him waking on multiple occasions each night and losing about 50 per cent of his normal sleep each night as a result of the exacerbation of his pain with movement. His general function is that he can lift about 10 kilograms two to three times a day and he can lift 5 kilograms on a semi-regular basis. He is not able to lift more than this and he needs to take a lot of care if he is getting something off the ground. He is unable to run or kick a ball. He is unable to do such things as going fishing, because of the movement of the boat, and riding a bicycle or motorcycle. He can also not drive a manual car or play golf but can do limited amounts of mowing lawns or vacuuming. Jeremy at this stage could cope with about four hours per day, three days a week, based on his abilities when he was last working in 2011 and his abilities then are very similar to his current abilities.”
22 In a report dated 10 June 2015, Mr Paul D’Urso, a Neurosurgeon, after reviewing the Plaintiff and the medical reports of Mr Timms and Dr Silver, concluded that:
“Jeremy Marotti sustained a lumbosacral disc prolapse as a result of employment activity performed on 17 June 2010. The disc prolapse appears to have largely resolved. Jeremy has been left with chronic back pain and sciatic symptoms. There is evidence of degenerative change, mainly located at the L5/S1 disc level.”
And further, that:
“Jeremy would have capacity to return to employment at the present time. Jeremy would require a greater return to work plan, initially starting with part time light employment activity with a graded increase in hours and intensity over a period of three to six months. Vocational retraining and assistance would be appropriate to facilitate a return to work for Jeremy. Currently Jeremy would not have capacity to work more than 16 hours per week.”
23 The Defendant relied upon a medical report of Dr Michael Baynes, an Occupational Physician, dated 18 July 2012 which stated as follows:
“Mr Marotti is suffering from chronic lower back pain, mainly right-sided, with referred pain intermittently into the right leg. This is associated with intermittent pins and needles and numbness in the right leg. This is in association with disc desiccation at L5/S1. There did not appear to be any significant nerve root impingement on clinical examination.”
Further:
“I do not believe the worker can return to pre-injury duties or hours.”
24 In relation to the Plaintiff’s current capacity for work, the Defendant relies upon the contents of a report of Dr Dominic Yong, a specialist Occupational Physician, dated 28 July 2015. Dr Yong examined the Plaintiff, received the results of the CT and MRI scans conducted and the reports of Mr Timms and Dr Silver. Dr Yong concluded as follows:
“Mr Marotti is a man who has had a discal injury to his lower back with initial radiological features of a neurocompressive condition on the right. This was treated conservatively and with back injections. There are current clinical features suggesting the presence of a neurocompressive condition. This would require confirmation with an upcoming MRI scan.”
And further:
“Mr Marotti’s current complaint includes pain in his lower back, also on the right, which radiates into his right buttock. He stated it also radiates down his right foot. He reports intermittent numbness in most of his right leg. He stated that at the time of the onset of the condition his pain in his back on a visual analogue scale was 10/10. He stated that it has improved to 7/10 since this time.”
Further:
“Taking into account the following factors relating to the physical condition only, current diagnosis, current functional capacity, current requirement to participate in an activity-based program, Mr Marotti has a current capacity for work. Mr Marotti has a current capacity to perform tasks within the following restrictions: avoid repeated bending and twisting the back; avoid lifting more than 5 kgs on a repeated basis; avoid repeated firm pushing or pulling; vary posture regularly between sitting, standing and walking.”
25 Dr Yong further concluded that the “Plaintiff does not have a current capacity to return to his pre-injury duties.” Dr Yong did not express an opinion as to how many hours per week the Plaintiff is currently capable of working.
26 In a further report dated 8 October 2015, Dr Yong stated that he believed that:
“I believe he has a capacity to undertake suitable employment.”
27 Dr Yong does not express an opinion as to the hours the Plaintiff was then capable of performing in respect of work.
28 The two reports relied upon by the Defendant of Dr Yong do not in any way quantify what capacity for work the Plaintiff has and counsel for the Defendant submitted that despite this, I should infer from those reports that Dr Yong meant that the Plaintiff has a current capacity for full time work; that is, approximately 38 hours per week.
29 In the two reports of Dr Yong, a number of job options for the Plaintiff are identified. The jobs encompass a wide range of tasks, yet no attempt is made by Dr Yong to identify what hours the Plaintiff has a capacity to work in respect of each of those tasks.
30 Plainly, it would have been open to the Defendant to seek from Dr Yong an opinion as to the hours the Plaintiff is currently capable of working.
31 The Plaintiff relies on the medical reports of Dr Silver and Mr D’Urso in relation to his current capacity for work. He also relied on a report of Dr Helen Sutcliffe, an Occupational Physician, that the Plaintiff has:
“No capacity for work when his age, education, skills and work history, together with his incapacity are taken into account.”
32 Dr Silver states that the Plaintiff has the current work capacity of 12 hours per week and Mr D’Urso assesses that capacity at 16 hours per week.
33 The Plaintiff gave evidence that he does have a current capacity for work and I accept that this is the case. However, I do not accept on all of the evidence before me that the Plaintiff has the current capacity for full time work.
34 The medical evidence establishes that the Plaintiff is suffering from ongoing intense pain, significant sleep disturbance and an impaired capacity to sit or stand for extended periods. He is currently taking medication for pain management and sleep disturbance.
35 Given the Plaintiff’s evidence as to his ongoing symptoms, which I accept, I find the opinion of Mr D’Urso as to the Plaintiff’s capacity for work, namely that that capacity is limited to 16 hours per week in suitable employment to be persuasive. I am further satisfied, given the period during which the Plaintiff’s symptoms have persisted since the injury, that his capacity for work has stabilised.
36 In my opinion, the Plaintiff is currently capable of working for approximately 16 hours per week, as stated by Mr D’Urso.
37 Section 134AB(38)(g) provides as follows:
“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;”
38 It was submitted on behalf of the Defendant that the Plaintiff had not undertaken any attempt to retrain himself and that his decision not to engage in any employment of any nature was “a lifestyle choice” and that the Plaintiff was, in effect, performing the duties of a stay-at-home parent whilst his wife was engaged in full-time employment. Accordingly, it was submitted that the Plaintiff had failed to establish that the absence of any attempt by him to retrain was not unreasonable.
39 As I have already observed, the Plaintiff gave evidence and was cross-examined on the hearing of the application. I am satisfied that he was a truthful witness and, furthermore, no attack on his credibility was mounted.
40 The Defendant relied upon two CDs containing film of the Plaintiff taking his daughter to day care and school and refuelling his vehicle and operating an air pump to inflate one of the tyres. The film does not contradict the testimony of the Plaintiff or the conclusions of the medical practitioners in any material way.
41 In my opinion, the Plaintiff’s very limited education, literacy and numeracy skills and limited computer skills means that any retraining that he did undertake would only enable him to perform unskilled light employment.
42 The Plaintiff did return to part-time work with the employer between August 2010 and January 2011, but left that employment when his duties exacerbated his injury.
43 The Plaintiff relied upon a vocational assessment report dated 24 August 2015, Katrine Green, a Vocational and Organisational Psychologist, which concludes:
“In concluding this report having regard to the medical opinions provided, the analysis of the above occupations and physical demands of the core duties, it is concluded that due to Mr Jeremy Marotti’s lower back injury and current physical capacity, he is unable to perform the inherent duties of his previous occupation or the inherent duties of any suitable employment within the foreseeable future. In concluding this report, it is considered that Mr Marotti is a suitable candidate for retraining. However, given his low educational background and the physical restrictions he needs to adhere to in any future employment he undertakes, it is considered that he needs to participate in further education including English and mathematics prior to embarking on vocational training. Due to his limited sitting tolerance such as education and retraining, it is likely to have to be undertaken on a part-time basis.”
44 The occupations considered by Ms Green in arriving at this opinion were: general labourer, café worker, retail sales assistant, delivery driver, store person, hand packer and factory process worker.
45 The Defendant relied upon vocational assessment reports of Workstreams and Cowork Pty Ltd. The reports deal with a range of occupations that the Defendant submits the Plaintiff is suitable to undertake.
46 Having regard to the Plaintiff’s very limited educational qualifications and literacy and numeracy skills, together with the nature of his pre-injury employment, I am satisfied that the retraining the Plaintiff is capable of would be in respect of low skilled, lighter duty employment that allows him to sit, stand or move around, as stated in the report of Mr Timms of 30 October 2012.
47 Accordingly, I am satisfied that, in the circumstances of this case, the plaintiff’s failure to undertake retraining is not unreasonable. Furthermore, having regard to the Plaintiff’s current physical capacity, education, limited skills and work experience, I am satisfied that his current work capacity would be in respect of occupations such as a car park attendant, caretaker or other like occupation.
48 The Plaintiff relied upon a report of Flexi Personnel in relation to the car parking attendant award rate and caretaker award rates payable to persons performing duties of that type. The gross hourly rate of pay for a worker performing those duties is $19.65 per hour.
49 As I am satisfied that the Plaintiff is currently capable of working only 16 hours per week and that his post injury earning capacity has stabilised, I am satisfied that he is capable of earning $314.40 per week or $16,348.80 per annum.
50 It is agreed by the parties that for the purposes of determining the Plaintiff’s pre injury gross income I should proceed on the basis that the figure is $59,280 per annum.
51 For the reasons set out above, I am satisfied:
(i) that the Plaintiff has established that by the reason of the impairment of function arising by reason of the injury the subject of this application, he has sustained a loss of earning capacity which meets the statutory threshold fixed by the Act:
(ii) that the consequences of that loss of capacity are fairly described as being more than significant or marked and as being at least considerable;
50 It follows that the Plaintiff is entitled to the orders sought in this application namely leave to commence a proceeding claiming damages for both pain and suffering consequences and the loss of earning capacity consequences of the injury sustained by him the subject of this application.[14]
51 I will hear the parties as to the precise form of the orders sought in the matter and also upon the issue of costs.
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[1] See also: Elazac Pty Ltd v Shirreff [2011] VSCA 405 at para 30.
[2] Transcript 123
[3] T123
[4] T123 – 124
[5] T124
[6] T124
[7] T124
[8] T124
[9] T125
[10] T125
[11] T125
[12] T125
[13] T125
[14] See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
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URL: http://www.austlii.edu.au/au/cases/vic/VCC/2016/45.html