COUNTY COURT OF VICTORIA 250 William Street, Melbourne
!Undefined Bookmark, I
IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION
Revised Not Restricted
Suitable for Publication
SERIOUS INJURY LIST Case No. CI-17-00214
MICHAEL ALLAN HUBEEK Plaintiff v VICTORIAN WORKCOVER AUTHORITY Defendant
---
JUDGE: HER HONOUR JUDGE K L BOURKE
WHERE HELD: Melbourne
DATE OF HEARING: 8 September 2017
DATE OF JUDGMENT: 6 October 2017
CASE MAY BE CITED AS: Hubeek v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION: [2017] VCC
REASONS FOR JUDGMENT
--- Subject: ACCIDENT COMPENSATION Catchwords: Serious injury – credit – impairment to the pelvis - pain and suffering –
loss of earning capacity Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38) Cases Cited: Humphries v Poljak [1992] 2 VR 129; 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; Poholke v Goldacres Trading & Anor [2016] VSCA 232; Roleff v Chubb Insurance Company of Australia Pty Ltd [2011] VSCA 21; Richter v Driscoll [2016] VSCA 142
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of loss of earning capacity.
---
APPEARANCES:
Counsel Solicitors
For the Plaintiff Mr R Meldrum QC with Mr L Allan
Patrick Robinson & Co
For the Defendant Mr B McKenzie Russell Kennedy
VCC:LM/DC/AS/LW/LP 1 JUDGMENT
Hubeek v Victorian WorkCover Authority
HER HONOUR:
1 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 Swire Cold Storage
Pty Ltd (“the employer”) on 13 April 2011 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both
pain and suffering and loss of earning capacity. These discrete heads of
damage require the application of different statutory tests, as mandated by
s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of
“serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is
defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.
4 The body function relied upon in this application is the pelvis.
5 The impairment of the body function must be permanent, in the sense that it is
likely to continue into the foreseeable future.
6 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.
7 By s134AB(38)(c) of the Act, the impairment must have consequences in
relation to each of pain and suffering and loss of earning capacity which, when
judged by comparison with other cases in the range of possible impairments,
fairly described, at the date of the hearing, as being more than significant or
marked, and as being at least very considerable.
8 I am required to consider the consequences to this particular plaintiff, viewed
objectively, arising from the injury. Comparison must also be made of the
VCC:LM/DC/AS/LW/LP 2 JUDGMENT
Hubeek v Victorian WorkCover Authority
impairment arising from the injury in this particular application with other cases
in the range of possible impairments or losses of body function, mental or
behavioural disturbances or disorders.
9 In this application 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.
10 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity
is to be measured.
11 Subsection (38)(g) requires questions of rehabilitation and retraining be
considered in determining whether the 40 per cent loss has been established.
12 Subsection (38)(h) provides consequences which are psychologically based
are to be wholly disregarded in paragraph (a) cases.
13 I have applied the principles identified by the Court of Appeal in Barwon
Spinners Pty Ltd & Ors v Podolak1 and Grech v Orica Australia Pty Ltd & Anor2
in reaching my conclusions.
14 Counsel for the defendant indicated the primary focus was on the loss of
earning capacity application but the issue of pain and suffering was still live. 3
15 The plaintiff relied upon four affidavits and was cross-examined. His wife, Maria
Hubeek, also swore an affidavit on 15 July 2017. In addition, Craig Matthews,
an employee of the defendant swore an affidavit on 7 September 2017. He was
required for cross-examination. Both parties relied on medical reports and other
material which was tendered in evidence. I have read all the tendered material.
1 (2005) 14 VR 622 2 (2006) 14 VR 602 3 Transcript “T”1
VCC:LM/DC/AS/LW/LP 3 JUDGMENT
Hubeek v Victorian WorkCover Authority
The Plaintiff’s evidence
16 The plaintiff is aged fifty-six, being born in October 1960. He is currently in
receipt of weekly payments at the current work capacity rate.4
17 The plaintiff was educated to about Year 9, and thereafter has worked without
formal qualifications, generally as a labourer doing factory or store work.
18 The plaintiff started working as a leading hand for the employer in about 2002.
His job involved doing a variety of tasks, including picking, packing, loading
trucks and repairs,
19 On the said date, at the employer’s premises, when the plaintiff was walking
towards a crane which he had to repair, he was struck by a forklift, suffering a
badly crushed pelvis (“the incident”).
20 After the incident, the plaintiff was assisted by co-workers and an ambulance
was called. He was inpatient at the Alfred Hospital for about five days, then
discharged to Epworth Hospital where he stayed for about a fortnight.
21 The plaintiff did not undergo operative treatment. On discharge, he was not able
to weight bear on his left leg for about two months or so.
22 Since being discharged, the plaintiff has been under the care of his general
practitioner, Dr Everitt, at Casey Medical Centre where he has attended since
about 2004.
23 The plaintiff ceased physiotherapy in about December 2011, as it was not giving
him any benefit. Since that time, he has had no active treatment, nor has any
been suggested. He has continued to see Dr Everitt, who is aware of his
significant ongoing problems.
24 As of August 2016, when he swore his first affidavit, the plaintiff was reluctant
to take pain relief because he thought it would affect him at work, and he was
worried if he masked the pain, he might do something which was unwise. He
4 T112
VCC:LM/DC/AS/LW/LP 4 JUDGMENT
Hubeek v Victorian WorkCover Authority
therefore generally put up with ongoing pain, although he took Panadol when it
was really severe – about eight tablets a week.
Post incident work
25 About four or five weeks after the incident, the plaintiff started doing some
transport log work from home by computer. A couple of months later, he started
to attend the employer’s premises, at first on very restricted hours and duties.
His hours gradually built up and his duties slowly increased until he was working
full-time, but his overtime fluctuated.
26 The plaintiff was doing many of his pre-injury duties, but not all of them. He
was no longer doing any picking and packing, and many other tasks had
restrictions and difficulties associated with them. For example, getting in and
out of the forklift was difficult, as he could not climb up and down as he used to.
27 Before the incident, the plaintiff was employed full-time as a store person by the
employer and was leading hand on the afternoon shift – a very practical and
physical role. While he was supervising employees, the plaintiff did not
undertake any of the administrative tasks and was not involved in hiring or
approving annual leave. It was his role to ensure fellow workers arrived on time
and undertook the jobs on the factory floor properly.
28 As leading hand on the afternoon shift, the majority of the plaintiff’s tasks were
physical. He spent a considerable amount of time operating a crane and also a
forklift. He was also responsible for loading and unloading containers and
trucks and performing basic maintenance.
29 After the incident, the plaintiff returned to work on what he would describe as
light duties. These were not the type of duties he had ever seen anyone else
undertake during his entire working life. They were considerably different from
those he was able to undertake pre-incident.
VCC:LM/DC/AS/LW/LP 5 JUDGMENT
Hubeek v Victorian WorkCover Authority
30 The plaintiff was provided with a computer and undertook basic data entry in a
program called AS/400. It was a basic menu-driven program that he had not
seen anywhere outside his employment.
31 The plaintiff understands the employer had another computer program that was
used for the inventory of the warehouse. He attempted to operate this program
for about a month without success, and was told that he caused havoc when
he tried to use it. As a result, following the incident, any work the plaintiff
undertook on the computer was extremely limited.
32 In May 2015, the employer was in the process of relocating to a warehouse in
Laverton. The plaintiff worked in in that warehouse as instructed for about three
months. At the end of that period, because he was restricted to light duties, the
plaintiff was told there were no prospects of being employed at Laverton and
his employment at the new warehouse ceased. He understood that his
employment prospects would be restricted in any other type of logistics role
within the warehouse industry due to his injuries.
33 When required to work in Laverton, the plaintiff had to drive for long periods
from his home in Narre Warren. Sitting in the car significantly increased his
spinal pain, and he would arrive at work in considerable pain. When driving
home each day, he had to stop at the Clayton warehouse, and although doing
so allowed him to take a break from the drive, he was still in significant pain
once he got home.
34 Whilst undertaking light duties with the employer, the plaintiff was able to
delegate many of his duties. As he had a very long history of working with the
employer, his workmates understood his restrictions and his manager tolerated
them. The plaintiff was able to self-pace and only undertake duties which did
not cause pain. He did not believe he would have the luxury of self-pacing in
any other type of employment.
VCC:LM/DC/AS/LW/LP 6 JUDGMENT
Hubeek v Victorian WorkCover Authority
35 The plaintiff swore a fourth affidavit on 6 September 2017 in response to the
affidavit of Chris Harrison which was originally relied on by the defendant. In
that affidavit, the plaintiff addressed a number of matters raised by Mr Harrison
as to the nature of his post incident duties.
36 There was only one suitable duties plan dated 13 July 2015 which was brought
into existence for the plaintiff’s work, whereas he was informed there would be
a monthly duties plan. That plan represents the sort of work he was doing until
he was made redundant. He had no idea whether Dr Everitt was aware of this
plan.5
37 The plan set out physical and other requirements of the job at that time were
administration, office work, inventory checks, forklift work, staging orders,
labelling, running stock in and out, and picking cartons less than 5 kilograms.
38 The plaintiff responded to a number of matters deposed to on the employer’s
behalf by Mr Harrison. The plaintiff explained that post-incident when working
at home, he had to break up the periods worked to no more than 20 minutes to
half an hour at a time, and he could only work for a total of three hours a day.
39 The plaintiff returned to work on about 17 June 2011, and most days remained
at work for about five hours. However, he does not believe he ever worked on
any day for more than a total of about three hours, and never for more than
approximately half an hour at a time. He never worked on computers for six
hours a day.
40 Whilst the certificates of capacity did not make reference to the plaintiff’s
problems with prolonged sitting and standing, he had discussed this issue with
Dr Everitt.6
5 T41 6 T34; T39
VCC:LM/DC/AS/LW/LP 7 JUDGMENT
Hubeek v Victorian WorkCover Authority
41 Although the plaintiff’s time at work increased to his pre-incident hours, he was
not able to engage in work on any one day for a total of more than about six
hours, and in an unbroken period for any more than 20–30 minutes.
42 By the time the plaintiff finished working for the employer, the periods he spent
in any one day loading and unloading trucks using a forklift never exceeded a
total of six hours, and not for more than 20–30 minutes at one time on a forklift.
He required a break of 10–15 minutes or so before he could resume using the
forklift.
43 The plaintiff would not be comfortable on a forklift for any longer than about 20
to 30 minutes at a time, and was very rarely occupied transferring stock
between two buildings for longer than an hour and a half. Rarely it might occupy
him for up to two hours a day.
44 The plaintiff’s use of the forklift was self-managed and he did not necessarily
complain to Mr Matthews about it or any other duties that he was doing at that
time. He did not need a medical certificate.7
45 Cycle counting was conducted only on Thursdays nights. The plaintiff would
walk with a clipboard, counting and recording products, for no more than about
20 minutes on the day.
46 The plaintiff had only a minuscule involvement with COR declaration forms,
which involved typing details into a computer. He only did transport bookings in
2011 and 2012. That involved inputting data into a computer, and did not take
more than about two hours on any one day. Other computer work occupied no
more than 30 minutes a week.
47 Training staff was a very minor part of what the plaintiff did. He tried to be good
at training people.8 Principally this training was limited to familiarising new staff
7 T59 8 T57
VCC:LM/DC/AS/LW/LP 8 JUDGMENT
Hubeek v Victorian WorkCover Authority
with the geography and procedures of the workplace, and would occupy no
more than half an hour per new employee.
48 It was extremely rare for the plaintiff to be involved in picking an order because
his work never involved him lifting over 5 kilograms.9
49 In cross examination, when it was suggested it was not a “made up” job, the
plaintiff said he had nobody telling him what not to do.10
50 Whilst Mr Matthews described the plaintiff as proficient in operating a computer
to carry out stock investigations, the plaintiff said “say so.” He denied he could
get to the heart of the problems and sort it out - he could just highlight it.11
51 Mr Matthews knew about the plaintiff’s restriction, as did Donny Francis, the
supervisor. Mr Francis was the one who rang the ambulance and knew
everything from the time the plaintiff went through rehabilitation. He knew the
plaintiff was on work certificates.12
52 Mr Matthews would ask the plaintiff how he was and the plaintiff would always
say, “I'm awake.”13 Their catch ups were few and far between.14
Further studies
53 While the plaintiff was undertaking suitable duties with the employer, he
undertook further qualifications in an attempt to rehabilitate himself and try to
make himself as employable as possible.
54 In 2015, the plaintiff completed a mandatory Certificate in Work Safely at
Heights. This was more of an induction. He is not able to climb up and down
any type of ladder or steps because of his current pelvic pain and restrictions.
9 T46 10 T47 11 T57 12 T58 13 T58 14 T59
VCC:LM/DC/AS/LW/LP 9 JUDGMENT
Hubeek v Victorian WorkCover Authority
This was a one-day classroom based learning, and he did not believe anyone
had difficulty passing the test.
55 The plaintiff also completed a Certificate IV in Transport and Distribution
(Warehousing and Storage). He was able to complete this qualification
because it involved one-on-one training with an assessor. The training took
one hour per week and was undertaken over a year. There was no requirement
to do any study at home. There was no computer-based assessment, and the
plaintiff undertook a multiple-choice question and answer test which he was
basically spoon-fed. He does not believe he would be able to undertake this
type of retraining in any other employment or formal environment.
Redundancy
56 The plaintiff employment was terminated by letter dated 25 May 2016. He then
received a termination payment of $106,000. He denied he had no imperative
to look for work after he received this payment.15
57 The plaintiff agreed that he had not taken a lot of sick leave, with $14,500 of his
termination payment being a refund of sick leave.16
58 The plaintiff agreed he was doing regular overtime the whole way through to
being made redundant. His overtime was at the end of the shift. He worked
anywhere up to four to five hours overtime. He agreed his times sheets showed
in the last week before he ceased work he worked seven hours overtime.17
59 The plaintiff agreed that his wages increased post-incident, explaining this was
probably due to the EBA.18 It was possible he was being paid for a valuable job
and his income was going up accordingly. He agreed he was not thrown on the
scrap heap after a year from his injury. He was kept on for five years until the
premises closed. He denied that was because he was a valued employee and
15 T36 16 T43 17 T35 18 T48
VCC:LM/DC/AS/LW/LP 10 JUDGMENT
Hubeek v Victorian WorkCover Authority
that he was performing valuable work for the employer.19
60 The plaintiff agreed as he told Dr David Barton in May this year, if he had not
been redundant he would still be in his old job doing the supervisory work.20 It
was possible as Dr Barton noted, that he reluctantly acknowledged a capacity
to do similar work in the logistics and warehousing area with a 5 kilogram weight
limit as he had been certified since about 2011.21
Post redundancy employment
61 The plaintiff sought employment after the redundancy, and for a brief time in
June 2016 was employed by Australian National Couriers (“ANC”) as a
courier.22 He got this job through a friend, but it quickly became apparent he
could not do the inherent requirements of the job as he was not able to lift and
deliver packages of up to 20 kilograms, a weight much greater than he had
been told was involved in the job.
62 The plaintiff was required to do between 10 and 15 deliveries a day on average.
He worked about nine days in total during which he was in very bad pain, in
particular, as he was often required to get in and out of a car. The plaintiff was
not able to keep up with the workload, and the type of work caused a significant
increase in hip pain.
63 As of August last year, whilst the plaintiff had looked for other work, he had not
been able to find any he could perform due to his physical restrictions and
limitations, and he did not think he would ever be able to return to any work.
Pain and restrictions
64 As of August 2016, the plaintiff had pain in his pelvis, lower back and left hip. It
was there virtually all the time, but it varied in severity. It was increased by
19 T50 20 T32 21 T32 22 T36
VCC:LM/DC/AS/LW/LP 11 JUDGMENT
Hubeek v Victorian WorkCover Authority
lengthy sitting, standing or walking, and wet weather was bad. He had trouble
with stairs and sloping ground, and felt he had some instability. He could no
longer climb ladders, which affected his ability to do home maintenance tasks
such as cleaning the gutters.
65 The plaintiff had difficulty getting comfortable in bed and that affected his sleep
greatly. He doubted if he ever slept for more than an hour and a half. If he
rolled onto either side, he was woken by pain. Because of these problems, he
bought a latex mattress so that when he tossed and turned, it did not disturb his
wife. Despite the mattress, he was unable to sleep due to his ongoing hip and
lower back pain. His marital relations had been affected by his pelvic injury.
66 The plaintiff was limited in lifting heavy items, and also bending to pick things
up, particularly on the left. He had been told he limped. He had become a very
slow walker.
67 At that stage, the plaintiff tried to do as much as he could, but generally did
things much more slowly than he used to and had to take account of his
limitations. For example, he no longer drove his car into the garage at home
because there was no room to open the car door fully and he could not squeeze
out of the car as he used to.
68 The plaintiff swore a further affidavit on 13 July 2017.
69 The plaintiff continues to suffer from considerable pain and restrictions as a
result of his hip and lower back injury. He has not returned to any meaningful
employment. He is currently unemployed and cannot work as a result of the
restrictions resulting from his hip and lower back condition.
70 The plaintiff continues to rely on significant pain medication, taking about four
Panadeine Forte a day, in particular for the pain in his pelvis and left hip. He
continues to walk with a limp and he is considerably restricted. Although he has
tried to rehabilitate himself as much as possible, including self-funding a gym
VCC:LM/DC/AS/LW/LP 12 JUDGMENT
Hubeek v Victorian WorkCover Authority
membership and also osteopathic treatment, the plaintiff’s pain and restrictions
continue to have a debilitating effect on his life.
71 The plaintiff agreed as Dr Weissman noted in August 2017 he was taking a total
package of Panadeine Forte and Panadol Osteo, four tablets a day. However
he did not want to rely on medication.23 He might have told Mr Kierce in May
this year, he took two Panadeine Forte a day, three to four days in a row.24
72 The days the plaintiff does not take tablets for pain are few and far between.
He goes without medication less than one day a week if he has had a good day.
73 The plaintiff currently sees the osteopath about once every three weeks.
Physiotherapy stopped because the physiotherapist stopped it.25
74 The plaintiff confirmed he continues to walk with a limp and is considerably
restricted. As he deposed in his first affidavit he had been told he limped and
he had become a very slow walker and that is now still the situation.26
75 The plaintiff agreed he told Dr Weissman that he could walk to the shop and
back, a distance of 1.4 kilometres. It took him two to three hours to do so
because he took frequent extended breaks and he also sat on brick walls and
fences. The plaintiff also thought it was possible he told Dr Weissman in May
this year that he could walk for up to 700 metres, but that would usually take
about three hours because he had to stop. When it was suggested this was an
exaggeration, the plaintiff said it took him longer than three hours some days.
He walked with a limp most of the day and most of the time. He still walks
slowly.
23 T17 24 T18 25 T19 26 T19
VCC:LM/DC/AS/LW/LP 13 JUDGMENT
Hubeek v Victorian WorkCover Authority
Surveillance
76 There was a total of 15 days’ surveillance from December 2016, during which
there was surveillance of 81.25 hours and a total video of two hours, 20 minutes.
77 On 21 April and 11 May this year, the plaintiff was shown walking for periods
up to 40 minutes around a local shopping centre. Whilst clearly he was walking
for longer periods than he told doctors he was capable of doing without taking
a break, in my view he was shown moving slowly and at times, limping. The
plaintiff denied he was walking around fairly normally.27
78 The plaintiff walked cautiously. He possibly told Dr Barton he had trouble
standing and walking on heels and toes.28 He could have told Dr Barton he
could not put his weight on his left leg.29
79 It was put to the plaintiff that at one stage in the video he lifted his right leg to
shake under his right shoe and he then put his weight on the left leg.30 The
plaintiff could not tell by looking at the video whether he had done this. He can
take his weight on his left leg. He denied he “put on a show” for Dr Barton
walking slowly from his rooms. He denied he moved around fairly normally in
the film and that there was no apparent limp apart from Dr Barton’s examination
and when he walked up the driveway.31
Capacity for suggested jobs
80 It has been suggested to the plaintiff he could work as a purchasing supply
logistics clerk. However, he did not think he would be successful in getting that
type of work. The role would involve sitting for long periods, which would cause
a significant amount of pelvic and left hip pain. He understood the role would
include customer service and speaking on the phone. He had never done this
27 T27 28 T27 29 T28 30 Film of 4 May 2017 31 T28
VCC:LM/DC/AS/LW/LP 14 JUDGMENT
Hubeek v Victorian WorkCover Authority
type of work, and had actively avoided direct contact with the public because
he did not feel comfortable dealing with people in a customer service
environment.
81 The plaintiff finds working on a computer for long periods very difficult as he has
a glass eye and his vision is restricted. When he is required to work on a
computer for a long time, his vision becomes blurred and he has headaches.
Thus, he has never worked in an office, and he has always worked in physical
type roles.
82 The plaintiff has never had any paid employment that involved working on a
word processor using Microsoft Word or Excel – programs he is unable to
operate. He has basic self-taught computer skills. He is unable to type with any
speed or accuracy. While he can undertake basic typing, using one finger, he
does not believe his typing skills would be at the level required in any type of
professional environment.
83 The plaintiff could not remember saying he had basic to intermediate Word and
Excel skills. Possibly he told IPAR he had advanced emailing skills and that he
could browse the internet.32
84 The plaintiff has also been told he could work as a despatch and receiving clerk.
This is administrative and office type work, which he has never undertaken in
his career. When he had to work on a computer for long periods with the
employer, he had been able to stand up and sit down and move around when
required. He would often have to get up and walk away from the computer
because of increased spinal pain. He did not believe he was overly competent
at this job, and he certainly did not enter the data as quickly as his co-workers.
85 Provided the plaintiff did not have to lift or carry or transfer lower cartons or
items greater than 5 kilograms, the work suggested by IPAR as a despatch and
32 T38
VCC:LM/DC/AS/LW/LP 15 JUDGMENT
Hubeek v Victorian WorkCover Authority
receiving clerk could fit his individual restrictions.33 He would be able to cope if
he was not required to push or pull cartons or items greater than 10 kilograms.34
86 The plaintiff would be able to cope with despatch and receiving jobs if he could
have access to regular postural changes.35
87 The plaintiff does not believe he has the skills to be able to sustain this type of
employment. He is now fifty-six and has never worked in an office, nor does he
believe he would able to retrain in any type of office-based employment.
88 The plaintiff did not think he could work as a scissor lift driver for long, as he
would have to climb stairs. Work as a forklift driver is work he could do and he
had worked as a warehouse shift supervisor until he was made redundant.
89 The plaintiff agreed that pushing and pulling items greater than 10 kilograms is
not required to operate a forklift. He would not have problems doing head
checks because he had no neck problem.36 If squatting was rare, he would be
able to cope with the aspect of forklift driving which required him to assess lower
items of stock on pallets on shelving. Provided he did not have to sit for a long
time or stand for a long time, he would be able to do forklift driving if he had
access to regular postural changes as required, to assure avoidance of
prolonged postures.37
90 The plaintiff could not remember talking to Dr Everitt about working as a forklift
driver but agreed as far as Dr Everitt was concerned, he can drive a forklift. He
did not recall discussing the scissor lift job with Dr Everitt but could remember
talking to IPAR about it.
91 The plaintiff could not recall discussing with Dr Everitt whether he could work
as a machine operator. He agreed Dr Everitt is keen for him to get back to work
33 T54 34 T55 35 T55 36 T53 37 T54
VCC:LM/DC/AS/LW/LP 16 JUDGMENT
Hubeek v Victorian WorkCover Authority
and continues to provide him with certificates.
92 The plaintiff would now be able to cope with courier driving if there was little
squatting involved and there was a 5 kilogram lifting limit and pushing and
pulling limit of 10 kilograms. If he could get out of the car and stretch his legs
that would overcome any problem with prolonged sitting.38
93 The plaintiff could not recall telling IPAR he had basic typing skills. He possibly
told them he knew a lot about warehouse and distribution type work and that he
had always progressed in his role. He would be open to pursuing a range of
employment options within these areas, as long as they aligned with his
physical restrictions and allowed flexibility between sitting and standing.39
94 The plaintiff probably last applied for jobs two weeks ago. He could not
remember the jobs involved or the wage details thereof. IPAR was aware of
these details.40
95 When the plaintiff told Mr Kierce in May this year he had two job interviews that
were unsuccessful, one was for Mountain Harvest for a job in Gembrook
arranged by IPAR. The plaintiff attended the interview but when he told the
employer of his restrictions, ”it all went downhill 41 and they lost interest when
he advised he was on Workcover.42
96 The other interview was with Farm Pride Eggs in Keysborough as a production
supervisor. Again, when the plaintiff told them about his light duties, “that
fizzled.”43 If he had been offered that job, he would have tried to see how he
went and possibly he might be working there today.44
38 T56 39 T39 40 T60 41 T61 42 T63 43 T63 44 T64
VCC:LM/DC/AS/LW/LP 17 JUDGMENT
Hubeek v Victorian WorkCover Authority
97 The plaintiff swore a further affidavit on 1 September 2017 in which he detailed
the effect his injury has on his daily activities.
98 The plaintiff has not had any contact with his children for about three years.
They are presently aged twenty-seven and twenty-one. His son has an
intellectual disability and decided to live with his mother when aged eighteen.
The plaintiff lost contact with his daughter shortly after hosting her twenty-first
birthday.
99 The plaintiff continues to grieve the loss of contact with his children. Because
of this situation, he filled his life with other activities. Work became particularly
important and was a central part of his life. He was passionate about training
and helping casuals maintain their employment. It was rewarding to see them
become competent staff members.
100 The most significant and meaningful loss the plaintiff continues to experience
as a result of his injury is his ability to attend work. This loss has caused him to
become significantly depressed.45
101 The plaintiff’s lifestyle has been significantly impacted by his left hip and spinal
injuries. Prior to the incident, he and his wife had upgraded their caravan
because they planned to travel when he took annual leave and on weekends.
They had a particular passion for camping in remote areas, so he undertook a
significant amount of modifications to the caravan, including putting in further
wiring and solar panels. He also added plumbing so a washing machine could
be operated from the caravan.
102 However, since his incident injuries, the plaintiff has not been able to return to
caravanning. He cannot set up camp because of ongoing hip pain. He cannot
sit for long periods to be able to drive to the locations they used to enjoy, and
he has not been on a caravan trip since.
45 T45
VCC:LM/DC/AS/LW/LP 18 JUDGMENT
Hubeek v Victorian WorkCover Authority
103 On the few occasions the plaintiff has gone on holidays, he is restricted to
staying at resorts, a situation he would never have contemplated previously as
he enjoyed camping in remote areas. He and his wife had made plans to go
around Australia at some point, and those plans have now been lost.
104 The plaintiff confirmed he had gone on a number of overseas trips to various
places in Asia in recent years.46
105 Prior to injuring his left hip and spine in the incident, the plaintiff was extremely
house proud. He decorated his house with Christmas lights each year and took
a particular pride and enjoyment in this task.
106 As a result of his hip injury, the plaintiff cannot climb ladders, or set up the lights.
He now approaches Christmas with dread, rather than looking forward to
decorating the house. He experiences significant distress and does not go
outside at that time of year to avoid seeing other decorated houses.
107 Pre incident, the plaintiff undertook a lot of handyman tasks around the home.
He was particularly passionate about his garden and had built a pond. He had
also developed a system of using rainwater to water the garden. His hip injury
prevented him undertaking this work. The garden has become overgrown and
the plaintiff no longer actively takes care of the fish or cares for the garden.
108 Pre-incident, the plaintiff rode a bike in order to keep fit and he enjoyed being
in the fresh air. He can no longer do so because of his hip pain. His bike is
disused and covered in bird droppings. The loss of his ability to exercise by
bike riding has been an ongoing and significant loss for the plaintiff.
109 The plaintiff is able to drive a car and go shopping on his own.47
110 Pre-incident, the plaintiff had a bird aviary and was passionate about caring for
birds. Since the incident, he no longer has the birds because he is not able to
46 T29 47 T28
VCC:LM/DC/AS/LW/LP 19 JUDGMENT
Hubeek v Victorian WorkCover Authority
look after them. His hip and lower back restrictions made it difficult to carry the
feed containers and water bowls, and he was not able to clean the aviary.
Caring for the birds was important to the plaintiff and his inability to do so has
been a significant loss for him.
111 The plaintiff’s house has a home cinema and he and his wife watched two to
three movies a week prior to the incident. Now, due to his ongoing pain, the
plaintiff cannot concentrate or sit for long. His wife refuses to watch films with
him because he has to constantly stand up and walk around. It has been a
significant loss for the plaintiff that he has been unable to enjoy a movie since
his hip injury.
112 As a result of his ongoing pain and restrictions, the plaintiff has become
significantly depressed. He now sits around the house all day thinking about
what he has lost. He experiences particular depression when his wife goes to
work or when he is reminded of his previous life. By nature, he is a private
person and struggles to talk about his symptoms of depression, and he has only
recently told people how he is feeling.
113 The plaintiff’s symptoms of depression are frightening. He often thinks life is
not worth living. He is also struggling with the ongoing hip pain, and at times
has made positive plans to commit suicide. He has thought of killing himself on
many occasions and made plans in this regard. In his darkest times, he is
resigned to the fact that he wants to take his own life.
114 The plaintiff continues to find it difficult to discuss his symptoms of anxiety and
depression. He has only recently told his wife about his plans and sought
treatment for his symptoms. He has recently been referred to a psychiatrist by
his lawyers. He has suffered in silence with these thoughts, which he did not
have pre incident. This is a new experience and has been absolutely
devastating and frightening for him. He has pulled away from his wife and
VCC:LM/DC/AS/LW/LP 20 JUDGMENT
Hubeek v Victorian WorkCover Authority
friends at times as he believes he has come to the conclusion that his life will
shortly end. This has been a significant concern.
115 The plaintiff continues to experience significant pain and restriction as a result
of the incident injuries to his pelvis, left hip and lower back. His main pain is in
his hips, more the left in the back, a little off centre.48
116 The plaintiff is unable to return to any type of meaningful work, and he has been
unable to find work of any type following the termination of his employment with
the employer.
Summary of plaintiff’s gross earnings from personal exertion
Year ending 30 June Gross income from personal exertion
2009 $ 47,505
2010 $ 49,356
2011 $ 53,116
2012 $ 44,714
2013 $ 52,385
2014 $ 75,238
2015 $ 97,732
2016 $ 48,427
2017 $ 559
Lay evidence
117 The plaintiff’s wife, Maria Johanna Hubeek, swore an affidavit dated 13 July
2017. They have been married since 2008.
118 Mrs Hubeek has observed as a result of the incident injury, the plaintiff
continues to suffer significant pain and restrictions, particularly in his lower back
and left pelvis. She has observed his life has considerably changed as a result
of those injuries.
48 T15
VCC:LM/DC/AS/LW/LP 21 JUDGMENT
Hubeek v Victorian WorkCover Authority
119 The plaintiff has gained a significant amount of weight since the incident
because he is unable to be as active as before. He tries to walk and keep as
active as possible, although he does comfort eat at home at times. As a result,
his appearance has changed.
120 Mrs Hubeek confirmed that post incident, the plaintiff has had problems with
household tasks, gardening, camping and caravanning and intimate relations.
His personality has changed. He has difficulty sleeping.. He e now relies on
Panadeine Forte to reduce the pain. Prior to the incident, he did not rely on pain
medication.
121 Mrs Hubeek has observed the plaintiff attempting to rehabilitate himself and
trying to return to some form of work. She has seen he is only capable of
undertaking light duties since the incident, and this has caused him to suffer
distress and humiliation at times. His inability to work and provide for them both
is a constant source of distress for him. She has observed the plaintiff continues
to suffer from significant pain and restrictions, particularly in his lower back and
also his left pelvis as a result of the work incident.
Treaters
122 The plaintiff was admitted to the Alfred Hospital on 13 April 2011. He then gave
a history of a work accident in which he was crushed by a forklift against a
railing, with an impact to his right hip.
123 X-ray and CT of the pelvis confirmed the plaintiff had sustained an undisplaced
fracture of the left superior and inferior pubic rami and undisplaced fracture of
the left sacral ala.
124 The plaintiff was reviewed by the orthopaedic unit, and conservative
management of the fractured pelvis was recommended. He received analgesia
and was to remain non-weight-bearing on the left leg for six weeks.
VCC:LM/DC/AS/LW/LP 22 JUDGMENT
Hubeek v Victorian WorkCover Authority
125 The plaintiff was monitored in the orthopaedic outpatient clinic where he
attended on 16 May. X-rays showed good position of the fractures, and he was
to continue non-weight-bearing.
126 The plaintiff was next seen on 3 June 2011 when his pain was settling. X-rays
showed the fracture was healing and he was able to commence weight-bearing
as tolerated.
127 The plaintiff was last seen at the Alfred Hospital on 15 July 2011. X-rays
showed that the fracture position was unchanged. He was permitted to mobilise
without restriction, and he was discharged from the clinic.
128 The plaintiff was an inpatient at Epworth Hospital between 18 April and 2 May
2011 for rehabilitation.
129 Jeanet Hofland, consultant in rehabilitation medicine, looked after the plaintiff
in Epworth Rehabilitation between 18 April and 2 May 2011 – she reported that
the plaintiff was very motivated and attended all sessions on a daily basis.
130 The plaintiff presented to his general practitioner, Dr Everitt, on 5 May 2011
regarding the work injury.
131 Noting the treatment undertaken, Dr Everitt reported from 28 October the
plaintiff was able to return to modified duties, not lifting in excess of 5 kilograms.
As of June 2012, he had been involved in a gym program, and the lifting
restriction continued. Dr Everitt then thought the restrictions would continue
long-term, as the plaintiff’s symptoms had been fairly stable for some time.
132 Dr Everitt next reported in May 2015. He then noted the plaintiff was now
stabilised with chronic pelvic pain, especially with cold/raining weather. The
plaintiff had stabilised such that he was fit for modified duties. The lifting
restriction of 5 kilograms was likely to remain indefinitely.
VCC:LM/DC/AS/LW/LP 23 JUDGMENT
Hubeek v Victorian WorkCover Authority
133 Dr Everitt noted the plaintiff had a self-managed gym exercise program and had
not needed prescribed analgesics. As he had been stable for a long period he
had not needed any recent radiological imaging or specialist referral. He noted
the plaintiff had no other significant or relevant unrelated conditions.
134 In October 2016, Dr Everitt requested osteopathic treatment for the plaintiff’s
work-related back pain.
135 When Dr Everitt reported in November 2016, he confirmed the plaintiff’s
condition remained stable as outlined in his earlier reports, with chronic pelvic
pain related to the work injury, and that the plaintiff remained on modified duties
indefinitely.
136 Dr Everitt noted there had been no gap in treatments, as the plaintiff attended
monthly. His treatment was directly related to the incident injury, and Dr Everitt
would expect his treatment plan to continue as previously outlined.
137 IPAR wrote to Dr Everitt in January 2017 advising it had been engaged to assist
with the plaintiff’s rehabilitation, specifically to identify suitable alternative
employment options. Dr Everitt was asked to endorse a number of job options
to assist IPAR in their task.
138 Dr Everitt completed the questionnaire.49 and identified the jobs of warehouse
shift supervisor, forklift driver, scissor lift driver and machine operator light as
suitable for the plaintiff. He thought the jobs of purchasing supply logistics,
despatch and receiving clerk, and courier driver light were unsuitable because
they involved too much sitting. He noted the plaintiff’s main functional
restrictions were “can’t sit long, can’t stand still, struggles to lift, struggles to
sleep so always tired.”
49 Pre-appointment Questionnaire 7 January 2017
VCC:LM/DC/AS/LW/LP 24 JUDGMENT
Hubeek v Victorian WorkCover Authority
139 In his most recent, very short report of 20 April 2017, Dr Everitt confirmed the
plaintiff was fit for modified duties with a lifting restriction of 5 kilograms, and
that was likely to remain indefinitely.
140 The plaintiff had soft tissue treatment at Fountain Gate Physiotherapy from July
to December 2011. He initially presented with a restricted range of left hip
movement. He was then working full-time and had started a gym program. At
that time, he described pain at 2 to 3 out of 10.
141 In the long term, Mr Rodgers, musculoskeletal physiotherapist from that clinic,
expected the plaintiff would not be able to undertake activities involving running,
although if needed, he could run a short distance. He suspected the plaintiff
would have difficulty with prolonged standing, and at work would struggle with
repetitive lifting if required to do so. He assumed the plaintiff had full capacity
to do the job he was employed in when last seen.
Plaintiff’s medico-legal evidence
142 Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in October
2015. At that stage, the plaintiff was continuing to work full-time light duties.
143 The plaintiff then advised he had ongoing lumbar spine pain and pain in the left
side of his pelvis. He could walk, but had problems with sitting, and he had
difficulty sleeping.
144 Mr Kossmann noted the plaintiff suffered a severe crush injury to his pelvis, and
was subsequently diagnosed with multiple fractures. The plaintiff continued to
suffer from ongoing pain issues, in particular his lumbar spine.
145 Mr Kossmann thought the plaintiff’s prognosis was guarded, and that he
required further treatment with pain medication. He considered the plaintiff had
a work capacity, noting he was working full-time light duties in his pre-injury
employment. The plaintiff seemed to cope with that work, however, time would
tell if he could return to full-time duties again.
VCC:LM/DC/AS/LW/LP 25 JUDGMENT
Hubeek v Victorian WorkCover Authority
146 Mr Paul Kierce, orthopaedic surgeon, examined the plaintiff in May 2017.
147 Mr Kierce noted the plaintiff continued to suffer with hip and back pain as a
result of the crushing injury to his pelvis. He was continuing to suffer with pain
in the left buttock, identifying the general area of the left sacroiliac joint, with
pain on the outer aspect of both hips and some pain and pins and needles on
the front aspect of his left thigh, with some radiation of pins and needles on the
inner aspect of his left calf.
148 The plaintiff indicated pain in both hips, which mainly referred to the iliac crest.
There was constant left hip pain, aggravated by walking for more than 20
minutes or 700 metres. His sleep was interrupted by left hip pain after about
five hours. He had left-sided low back pain, which was aggravated by sitting
and standing for 20 minutes. He avoided bending. He walked without a limp,
but tended to take short steps as he shuffled along.
149 Mr Kierce noted there was a significant crush injury to the pelvis and thought it
was also likely the plaintiff aggravated pre-existing lumbar spondylosis.
150 Mr Kierce considered the plaintiff was no longer fit for heavy work and was only
fit for sedentary type work for the foreseeable future, noting he does have
computer skills.
151 In Mr Kierce’s view, the plaintiff is likely to suffer bilateral hip pain for the
foreseeable future, as well as chronic low back pain related to the incident. He
is permanently unfit for any manual handling work and only fit for sedentary type
work. There was no physical therapy indicated, or operative therapy. However,
Mr Kierce thought it most important that the plaintiff lost weight.
152 Dr Joseph Slesenger, occupational physician, examined the plaintiff in May
2017.
153 The plaintiff advised he then had ongoing low back pain that was constant and
moderate in severity, and aggravated by activities such as sitting or standing
VCC:LM/DC/AS/LW/LP 26 JUDGMENT
Hubeek v Victorian WorkCover Authority
for prolonged periods. He had ongoing severe pain in the left hip, aggravated
by activity, radiating to the left sacroiliac joint. He had moderate to severe
ongoing pain in the right hip.
154 In addition to the pelvic fracture, Dr Slesenger diagnosed mechanical injury to
the lumbar spine, aggravation of degenerative disease of the lumbar spine, and
chronic pain disorder, noting a psychological impairment which was outside his
area of expertise.
155 Taking into consideration the plaintiff’s current lumbar spinal and bilateral hip
impairment, Dr Slesenger thought the following restrictions were appropriate-
no sitting or standing more than 10 minutes, no push/pull, carry or lift over 5
kilograms, no bending, limited walking, sedentary duties only (and stand as
required) and car park facilities and toilet facilities to be located close to the
work station.
156 Taking into account the plaintiff’s past occupation, his current symptoms and
functional limitations, his age of fifty-six, his current residence at Narre Warren,
his focussed occupational experience, Dr Slesenger thought the plaintiff has a
residual capacity for work with these restrictions: limiting his return to work to
four hours a day, four days a week.
157 Dr Slesenger noted that the plaintiff’s employment prospects will be heavily
influenced by the transferability of his skills and experience, and that in turn will
be heavily influenced by his computer skills, about which Dr Slesenger had
some reservations, noting they were self-taught and untested in a commercial
environment.
158 Dr Slesenger thought the plaintiff could do the warehouse shift supervisor role
within the restrictions outlined. However, given his experience of workers in
similar roles, there may be aspects of these tasks outside the plaintiff’s capacity
limits, and Dr Slesenger recommended a worksite assessment.
VCC:LM/DC/AS/LW/LP 27 JUDGMENT
Hubeek v Victorian WorkCover Authority
159 Dr Slesenger advised the plaintiff against returning to forklift driving as there
was a risk that he would be exposed to vibratory forces and may be required to
perform some manual handling tasks. He also advised the plaintiff against
returning to work as a scissor lift driver, as the job tasks would requiring lifting
up to 9 kilograms (medium lift requirements) and were likely to be outside the
plaintiff’s capacity limits.
160 Dr Slesenger advised the plaintiff against returning to work as a machine
operator, as the job tasks were likely to require repetitive bending and twisting,
with either hopper feeding or decanting products or pallet stacking. Further, he
noted the majority of workers in this role are required to set machinery and
intervene in breakdowns. The job required prolonged sitting and standing, and
working in restricted spaces.
161 Dr Slesenger thought the plaintiff could work as a purchasing supplier logistics
stock clerk and despatching receiving clerk. However, some tasks may be
outside the plaintiff’s capacity limit, and he recommended a job specific worksite
assessment.
162 Dr Slesenger advised the plaintiff against returning to work as a courier driver,
as the job tasks require medium lifting capacity, also noting the plaintiff’s driving
limitations.
163 Dr David Weissman, consultant psychiatrist, examined the plaintiff in August
2017.
164 In terms of history, the plaintiff told Dr Weissman that it took him two and a half
to three hours to walk to the shops and back, a round trip of 1.4 kilometres. It
took him this long because he took frequent extended rests and he also sat on
brick walls and fences.
165 When the plaintiff was asked about his current psychological and emotional
symptoms and progress, he was not particularly responsive to the questions.
VCC:LM/DC/AS/LW/LP 28 JUDGMENT
Hubeek v Victorian WorkCover Authority
He said he was not depressed per se. He said he did not understand questions
about his self-esteem and confidence, and what he thought about the future.
166 Dr Weissman concluded there was no clear pre-existing or unrelated psychiatric
condition or impairment. He thought, overall, the plaintiff was suffering from
slight residual traumatisation features directly due to the incident. However, he
did not have a full-blown chronic post-traumatic stress disorder (“PTSD”). He
thought the plaintiff was suffering from a mild chronic adjustment disorder with
anxious predominantly frustrated mood, consequential to the loss of his
employment in late May 2016, and the original pain injury’s limitations and
restrictions dating back to the incident.
167 Dr Weissman did not think the plaintiff required psychiatric or psychological
counselling or anti-depressant medication. He thought the issue of work
capacity should be better addressed by an orthopaedic surgeon and
occupational physician, noting that on purely psychiatric grounds, there was no
actual psychiatric incapacity for work. However, he noted that when one
considers the definition of suitable employment, including the plaintiff’s relative
lack of transferable skills outside of manual duties, his presumed capacity for
only sedentary duties now, and his advancing age of fifty-six, his time away
from work (it is more than a year now); the plaintiff is going to experience
difficulty finding so-called suitable paid employment on the open labour
marketplace.
168 Overall, Dr Weissman thought the plaintiff was currently suffering from only a
mild group of work-related psychiatric conditions and mental injury. His overall
psychiatric prognosis was fair.
The Defendant’s medical evidence
169 Certificates provided by Dr Everitt set out the plaintiff is fit for modified duties
with the only work restriction listed being no lifting more than 5 kilograms.
Medico legal
VCC:LM/DC/AS/LW/LP 29 JUDGMENT
Hubeek v Victorian WorkCover Authority
170 The plaintiff was examined by Mr Bruce Love, orthopaedic surgeon, in
November 2016.
171 The plaintiff then complained of pain present daily, for which he took Panadeine
Forte.
172 Mr Love thought the plaintiff appeared to have principally suffered a crush injury
of the pelvis and the injuries appeared to include the sacroiliac joints and pubic
rami, with a probable aggravation of degenerative spondylosis of the lumbar
spine. It was unlikely there would be any significant change in the plaintiff’s
condition in the foreseeable future.
173 Mr Love noted the plaintiff’s current physical condition is that he appears
significantly over an ideal body mass index and has significant impediment of
function due to pelvic pain and gait disturbance. He considered the plaintiff’s
residual disability was of a moderate severity.
174 Mr Love had not judged the plaintiff to have a pain disorder or significant
functional overlay. He thought his symptoms were organically based and was
not able to ascribe the plaintiff’s symptoms to any psychological condition.
175 In Mr Love’s view, if the plaintiff had pre-injury duties available to him, he would
be capable of performing the tasks he was doing at the time of his redundancy.
If he was to gain employment, it would need to be such where he could choose
his posture at work, where he was not required to engage in prolonged standing,
walking or repeated bending and stooping, and not being expected to lift more
than the lightest of loads.
176 Mr Love noted that there had been no rehabilitation since the early post-
operative period, and it was now more than four years since the incident. It was
improbable that rehabilitation would have a great role to play, with the exception
that encouragement with weight loss would be in the plaintiff’s interest.
177 Mr Graeme Doig, orthopaedic surgeon, examined the plaintiff in March 2017.
VCC:LM/DC/AS/LW/LP 30 JUDGMENT
Hubeek v Victorian WorkCover Authority
178 The plaintiff then complained of ongoing stiffness with lower back and pelvic
pain.
179 Mr Doig noted the plaintiff sustained multiple pelvic fractures through the left
side as a result of the crush injury, and had now developed secondary arthritis
at the sacroiliac joints and lumbosacral spine.
180 Mr Doig thought the plaintiff was not fit for pre-injury status, but had a current
work capacity. He was fit for alternative duties with a 10 kilogram lifting, pushing
and pulling restriction, with limited bending, twisting and squatting through the
spine. He would need breaks from prolonged sitting, standing and driving.
181 In Mr Doig’s view, there did not appear to be anything other than the work injury
affecting the plaintiff’s recovery. His treatment was appropriate and he was
imply using analgesics on an as-required basis.
182 Dr David Barton, occupational physician, examined the plaintiff in May 2017.
183 The plaintiff advised that while he was continuing to work, his problem was fairly
stable. Over the last year, he felt, because he had been less active, his
symptoms had worsened. He described three specific sites of pain, with two
being around the lateral aspect of the left and right elbow, and one close to the
left sacroiliac joint. The left-sided pain was constant and made worse with
sitting and standing for more than 20 minutes. The pain was less severe around
the right hip. He had twinges, with symptoms shooting down the left leg at times.
184 The plaintiff acknowledged that were he not to have been made redundant, he
would still be doing his current supervisory job. He reluctantly acknowledged a
capacity to do similar work in the logistics and warehouse area. He felt the 5
kilogram limit would need to be maintained and advised he had had some
contact with the rehabilitation provider.
VCC:LM/DC/AS/LW/LP 31 JUDGMENT
Hubeek v Victorian WorkCover Authority
185 Dr Barton noted the plaintiff described fairly persistent and troublesome
symptoms. Dr Barton was not aware of any other factors playing a part in the
plaintiff’s condition.
186 Dr Barton accepted there is both an organic basis to the pain and some
functional component. He noted on examination there were several findings
that did not fit with a straight forward physical problem, and suggested a degree
of overlay was playing a part – a discrepancy between limited straight leg raising
and postures noted at other times, an increase in reported symptoms with axial
loading, and marked tenderness made little medical sense considering the time
to recover since the original injury.
187 Dr Barton believed the plaintiff had physically mostly recovered from the pelvic
fracture. He would accept there may be some minor, ongoing symptoms related
to the original injury. Accepting the nature of the original injury and the plaintiff’s
subsequent symptoms, Dr Barton believed the plaintiff possibly has a partial
incapacity for all of his pre-injury duties.
188 Dr Barton, however, believed the plaintiff has a capacity for work, and noted he
was able to return to work for a considerable period of time after the injury until
retrenched. He believed the plaintiff could complete the various jobs in the
IPAR report. He accepted that getting in and out of the car may present with
some occasional difficulties, but he did not believe this was a contraindication
to the plaintiff doing that work. He considered the plaintiff could work full-time.
Vocational evidence
189 Occupational Rehabilitation specialist Ms Burmeister provided a job-seeking
services report on behalf of IPA in January 2017.
190 It was noted the plaintiff reported he had a vast range of knowledge within
warehouse and distribution-based environments, and he always progressed in
his role. He reported he would be open to pursuing a range of employment
VCC:LM/DC/AS/LW/LP 32 JUDGMENT
Hubeek v Victorian WorkCover Authority
options within these areas, as long as they aligned within his physical
restrictions and allowed flexibility between sitting and standing.
191 The plaintiff advised he had self-taught computer skills with basic to
intermediate Word and Excel skills, advanced emailing skills, internet browsing
and basic typing skills.
192 Mrs Burnside identified the following as suitable employment options –
warehouse supervisor, forklift driver, scissor-lift driver, and machine operator
(light – food), purchasing, supply, logistics (stock clerk, despatch and receiving
clerk) and courier driver light).
193 These jobs were again mentioned in a Job Task Analysis Report of April 2017.
194 It was noted the plaintiff agreed with all the employment options, though he was
unsure as to the suitability of a courier driver role, and its suitability would be
impacted by the specific work requirement.
195 In the forklift driver role, the average weekly full-time income was $981,
despatch and receiving clerk $1,100, and courier driver light $1,017.
196 IPAR produced a resume on the plaintiff’s behalf and applied for a job with
Nulac on 8 March 2017.
197 On 31 May 2017, IPAR assisted in locating and applying for the following roles:
vendor scheduler FMCG, Six Degrees Executive Pty Ltd; supply planner,
Vertical Talent.
198 On 22 June 2017, two further roles were located and applied for, with two on 6
July, one on 12 July and three on 20 July 2017.
199 There was a further Job Seeking Review Report compiled by IPAR on July 2017
which mentioned the Mountain Harvest job application.
VCC:LM/DC/AS/LW/LP 33 JUDGMENT
Hubeek v Victorian WorkCover Authority
Termination of employment
200 By letter dated 25 May 2016, the plaintiff was advised by the employer that his
position of leading hand was redundant.
201 The employer advised that it had considered and explored redeployment
options in preference to the separation of the plaintiff’s employment, but a
suitable alternative position had not been found. This meant his employment
would separate on the grounds of redundancy effective from 25 May 2016.
202 An employee termination report set out that the plaintiff received a net
termination payment of $106,937, with sick leave payments of $14,501.
203 Pay records indicated that the plaintiff worked regular overtime, with seven
hours’ overtime in the week he last worked before taking the redundancy.
Defendant’s lay evidence
204 Craig Matthews is currently employed by the employer as customer service
manager and managed the work site from February 2013 to March 2016.
205 When Mr Matthews commenced in the role of site manager, he was not aware
of any restrictions on the plaintiff’s duties. After about 12 to 18 months, he was
told the plaintiff was working on restricted duties due to his prior workplace
accident.
206 Mr Matthews understood the only restriction on the plaintiff’s duties was that he
could not lift more than 5 kilograms in accordance with the certificate of capacity
signed by his doctor.
207 Mr Matthews understood the plaintiff performed restricted duties until March
2016. He believed the plaintiff’s duties included:
(a) loading and unloading trucks using a forklift;
(b) delegating work to other staff members;
VCC:LM/DC/AS/LW/LP 34 JUDGMENT
Hubeek v Victorian WorkCover Authority
(c) cycle counting;
(d) computer work (transport bookings, COR declaration forms,
allocating work via Swim (AS/400 system);
(e) assisting stock investigations via Swim;
(f) training of staff;
(g) transferring of stock between two buildings (forklift);
(h) case picking – monitored to ensure no lifting over 5 kilograms.
208 For the period Mr Matthews managed the Clayton site, he was not aware of any
specific time restrictions enforced in relation to the plaintiff’s use of manual
handling equipment. No issues were raised by the plaintiff to himself or site
supervisors at that time.
209 Mr Matthews and the plaintiff would have had intermittent catch-ups on the
plaintiff’s overall health and condition. The plaintiff was constantly reminded out
of care to ensure he worked within the restricted duties outlined in his certificate,
and to advise in the event there were any tasks he was not able to perform.
210 In response to the plaintiff’s affidavit, Mr Matthews could not confirm either way
if the plaintiff had elected to manage his time in specific increments on manual
handling equipment.
211 Cycle count duration would be varied and would have likely exceeded 30
minutes when operating under normal circumstances.
212 Computer work was typically required based on activity and/or when support
was required. During Mr Matthews’ time managing the site, the plaintiff was
called on at times for covering, and he also voluntarily assisted afternoon
administrative staff in the compiling of the next day’s despatch time slots.
VCC:LM/DC/AS/LW/LP 35 JUDGMENT
Hubeek v Victorian WorkCover Authority
213 Stock investigations would require a varied level of inquiry at times to complete.
The plaintiff was considered to be very proficient in the process, often
pinpointing root causes and suggesting corrective actions.
214 Mr Matthews confirmed the duties the plaintiff was performing were a real job.
He was a team leader for the afternoon shift and his contribution was valued.
The plaintiff was well regarded by him.50
215 Mr Matthews confirmed that there were pay rises, according to overtime worked
and an EBA.51 Many people were made redundant at the same time as the
plaintiff.52
216 In cross-examination, Mr Matthews confirmed he was responsible for the
management of the site and also directing the leading hands on what to do
day-to-day. He agreed he would be concerned about the work ability of anyone
was suffering from any form of disability.53
217 Mr Matthews confirmed that 30-40 per cent of the role of a leading hand would
be operating a forklift and they would need two feet to do it.54
218 Mr Matthews agreed the plaintiff had a fair bit of autonomy in terms of choosing
what tasks he would do to fill up his day, and he was left to his own devices as
long as he was putting in a full day’s work.55
219 Mr Matthews did not think slip sheeting was a predominant part of the plaintiff’s
shift and was not aware this task was not being done by him. He could not say
whether or not the plaintiff was doing pallet stacking “out the back”. He
disagreed the plaintiff was doing a light duties leading hand role but agreed he
was doing the role with a 5kg lifting restriction.56
50 T83 51 T84 52 T85 53 T85 54 T92 55 T97 56 T98
VCC:LM/DC/AS/LW/LP 36 JUDGMENT
Hubeek v Victorian WorkCover Authority
220 Typically speaking, a leading hand would not pick a lot, and that task was
typically delegated to agency employees.57 Five to ten per cent of the leading
hands’ time would be spent picking and packing, and the plaintiff was ruled out
of any heavy lifting over 5 kilograms.
221 The plaintiff’s direct supervisor was Steven O’Brien, who is no longer with the
employer and would have left some months after the site closed down.58
Overview
222 There is no dispute the plaintiff suffered a crush injury to his pelvis in the incident
on the said date. X-ray and CT scans of the pelvis confirmed he had sustained
an undisplaced fracture of the left superior and inferior pubic rami and
undisplaced fracture of the left sacral ala.
223 Further, as Mr Love and others have described, the plaintiff suffered an
aggravation of degenerative spondylosis in the lumbar spine.
224 The consensus of medical opinion is that the plaintiff’s present condition has a
substantial organic basis. There is little suggestion otherwise save for a brief
comment by Dr Barton of some inconsistent findings on examination and some
psychological issues noted by Dr Slesenger.
Credit
225 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:59
“… 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.”
226 Counsel for the defendant submitted the plaintiff’s affidavit evidence about his
depressive condition was bewildering,60 and ultimately he should be seen to be
57 T99 58 T101 59 (2010) 31 VR 1 at paragraph [12] 60 T106
VCC:LM/DC/AS/LW/LP 37 JUDGMENT
Hubeek v Victorian WorkCover Authority
an unreliable witness61 as he did not report severe psychiatric symptoms to Dr
Weissman and they were not noted by his general practitioner.62
227 Further, it was submitted it was strange the plaintiff could not remember details
of a job application two weeks ago.63
228 Particular reliance was placed on the history given by the plaintiff to Dr
Weissman and Dr Slesenger of the time it took him to walk a relatively short
distance, a situation it was submitted was inconsistent with the plaintiff’s level
of activity shown on film.64
229 These and other minor examples were relied on by counsel for the defendant
who submitted that credit remained a factor in terms of assessing the
consequences under both heads.65
230 As I indicated during the hearing, whilst the plaintiff was shown on film walking
around shopping centres for extended periods, he was not walking particularly
freely and at times he was moving slowly and limping a lot. The plaintiff was
subject to extraordinarily thorough investigation which in my view showed little
inconsistent with the plaintiff’s evidence of his pain and resultant restrictions. 66
231 I accept that the plaintiff is not a man who discusses his emotions easily and he
is not particularly articulate. This explains his failure to mention his deteriorating
psychological condition to his doctor. As counsel for the plaintiff submitted, the
plaintiff is a man who answers questions he is asked and is not a fellow who
talks about himself much.67
232 I found the plaintiff to be a truthful witness who gave a very credible account of
his ongoing problems since the incident, his difficulties obtaining further
61 T107 62 T108 63 T108 64 T109 65 T111; evidence about LinkedIn - T53 and recreational use of computers 66 T130 67 T131
VCC:LM/DC/AS/LW/LP 38 JUDGMENT
Hubeek v Victorian WorkCover Authority
employment and the significant interference with a range of recreational
activities as a result of his injury.
233 There was no real challenge to the plaintiff’s evidence as to the interference
with daily and recreational activities deposed to.68 His wife confirmed these
restrictions in her affidavit. She was not cross examined.
Pain
234 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon, the evidentiary
basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff
says about the pain, both in court and to doctors. 69
235 The plaintiff has deposed to and consistently complained to doctors of
considerable pain and restriction in his hips, particularly the left, and low back.
The pain is in the general area of the left sacroiliac joint, with pain on the outer
aspect of both hips and some pain and pins and needles on the front aspect of
his left thigh, with some radiation of pins and needles on the inner aspect of his
left calf.
236 The plaintiff continues to have difficulty bending and is unable to lift anything
other than very light weights. His sitting and standing tolerances are limited by
his pain. At times, he limps. Sleep is interrupted by left hip and back pain.
237 The plaintiff requires ongoing significant pain killing medication taking up to four
Panadeine Forte per day.
238 As Dodds- Streeton JA said in Kelso v Tatiara Meat Company Pty Ltd,70 in a
case where chronic pain was a prominent feature -“the endurance of permanent
daily pain requiring frequent medication, must, according to ordinary human
experience, raise a real prospect of a ‘very considerable’ consequence.”
68 T129 69 (Supra) at paragraph [11] 70 (2007) 17 VR 592 at para 199
VCC:LM/DC/AS/LW/LP 39 JUDGMENT
Hubeek v Victorian WorkCover Authority
239 Further, in terms of treatment, the plaintiff self funds a gym program and
continues to attend an osteopath for treatment. He also had physiotherapy at
an earlier stage.
240 A range of activities enjoyed by the plaintiff pre incident such as camping and
caravanning, gardening and his home cinema are either no longer available to
him or are now of limited enjoyment as a result of his incident injuries.71
241 Whilst all doctors say agree the plaintiff has a capacity for work,72 the
consensus of medical opinion is that as a result of his ongoing pain and physical
restrictions, the plaintiff no longer has the capacity to do unrestricted heavy
work. Since the injury, a 5 kg lifting limit has been imposed and he has had
continuing difficulty with prolonged sitting and standing.
242 In my view, this work restriction resulting from the incident injury is a serious
consequence, as are the other consequences referred to above when
considered in their totality.
243 I accept that the plaintiff’s home life and work life pre- and post-accident was
chalk and cheese 73 and that there was a dramatic change in both his work and
home life as a result of his incident injury.74
Loss of earning capacity
244 Having satisfied 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).
71 T124 72 T111 73 T126 74 T127
VCC:LM/DC/AS/LW/LP 40 JUDGMENT
Hubeek v Victorian WorkCover Authority
245 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.
246 The former must be calculated by reference to the six-year period specified in
s134AB(38)(f).
247 “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.
248 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.
249 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. I am therefore required to determine a “without injury” earnings
figure, and submissions were made by counsel in this respect.75
250 Counsel for the defendant submitted that the figure that most fairly reflected the
plaintiff’s without injury earnings was his earnings from the 2012/13 financial
year of $62,614 gross or $1,204.11 gross per week. Sixty per cent thereof is
$722.47.76
251 No alternative figure was suggested by counsel for the plaintiff.77
75 Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [70] 76 T117, Roleff v Chubb Insurance Company of Australia Pty Ltd (2011) VSCA 21 at paragraphs [23] and
[4] 77 T132
VCC:LM/DC/AS/LW/LP 41 JUDGMENT
Hubeek v Victorian WorkCover Authority
252 Counsel for the defendant submitted the plaintiff had failed to establish the
requisite 40% loss.
253 It was submitted the plaintiff had demonstrated a capacity for full time work
whilst in his post incident job with the defendant. Had he not been made
redundant, the plaintiff would have continued in this role which it was submitted
was a real, valuable job as Mr Matthews confirmed.78
254 Post incident, the plaintiff worked full time with regular overtime, working 7
hours overtime in the week before his employment ceased. He did not take
much in the way of sick leave and his wages substantially increased over the
period of employment.79
255 It was submitted this was not a case where the plaintiff was being targeted as
lots of workers were made redundant at the Clayton site as Mr Matthews
confirmed.80
256 The plaintiff is still applying for work and it was submitted he has a reasonably
formidable skill set, with basic to intermediate computer skills and a knowledge
of warehouse and distribution jobs and experience in training others.81
257 It was submitted there had been a proper basis provided for the suggested jobs
of forklift driver, despatch and receiving clerk and light courier driver.82
258 The only restriction that had ever been placed on the plaintiff’s duties in the
years after the incident was a 5 kg lifting limit.
78 T114, Poholke v Goldacres Trading P/L & Victorian Workcover Authority (2016) VSCA 232 at para
[143]. 79 T115 80 T115 81 T116 82 Richter v Driscoll (2016) VSCA 142; T122
VCC:LM/DC/AS/LW/LP 42 JUDGMENT
Hubeek v Victorian WorkCover Authority
259 It was submitted Dr Barton’s line of reasoning that the plaintiff had a capacity
for the suggested jobs on full-time basis should be preferred to Dr Slesenger’s
inexplicable limiting of hours to 16 per week.83
260 Further, Dr Everitt, the general practitioner, thought four of the seven jobs were
appropriate on a full-time basis.84
261 On the basis of Dr Barton’s view, largely shared by Mr Doig and Mr Love who
thought the plaintiff was fit for full time light work, it was submitted the plaintiff
could not establish the requisite loss.
262 There was no evidence of a deterioration in the plaintiff’s condition following the
termination of his employment to explain why he could not continue to perform
duties of a similar, valuable nature to those undertaken whilst working for the
employer post incident.85
263 Working full time in all of the three suggested roles, the plaintiff would earn in
excess of $742 per week- forklift driver $981, despatch and receiving clerk
$1,100, and courier driver light $1,017.86
264 Counsel for the plaintiff submitted the plaintiff’s case was pretty simple. He was
doing modified work post-incident that would not make him employable on the
open market, and he is now unsafe and unfit to do work, particularly forklift.87
265 Further, the plaintiff is not work shy as he tried for the job as a courier soon after
he left the other job. He was unable to continue for more than 9 days because
of the heavy lifting that was involved and difficulties getting in and out of the
car.88
83 T121 84 T119 85 T121 86 T123 87 T124 88 T125
VCC:LM/DC/AS/LW/LP 43 JUDGMENT
Hubeek v Victorian WorkCover Authority
266 I accept that the plaintiff was only able to stay at work because the work was so
modified and he had devised his own system.89 Whilst Mr Matthews described
the plaintiff performing a number of roles, on close examination, these were of
a limited nature and carried out over short bursts.
267 Obviously the lifting of restriction of 5 kilograms is a very significant one and
impacted on all the plaintiff’s activities.90 Further, he was only able to drive a
forklift for only 20-30 minutes and then required a 15 minute break. His use of
the computer was limited both by his lack of computer skills and also his inability
to sit for prolonged periods as he described, confirmed by Dr Everitt in January
this year.
268 I accept the plaintiff’s evidence that he knew of no one who had performed that
role before and that there is no evidence that there is a like role in similar terms
on the open market.91
269 Whilst the plaintiff agreed he could do a number of the suggested jobs with
appropriate restrictions as to lifting and prolonged postures, I accept that he
would not be able to reliably and consistently attend the workplace on a regular
basis to perform those given the severity of his ongoing pain. Further, once at
work, he would need to regularly move around and would be significantly limited
in the tasks he could perform in any event due to the 5 kilogram lifting restriction.
He would not have the luxury of being able to self pace his work as was the
case with his duties at the employer prior to the termination of his employment.
270 The plaintiff is now aged 56. He has no clerical experience and his computer
skills are not such that he would make him an attractive employment candidate.
Despite undertaking retraining and cooperating fully with IPAR, he has not been
successful in obtaining further suitable employment.
89 T126 90 T125 91 T127
VCC:LM/DC/AS/LW/LP 44 JUDGMENT
Hubeek v Victorian WorkCover Authority
271 As counsel for the plaintiff submitted, the plaintiff is restricted in what he does
at home, he is restricted in his sleep, and accepting he is a credible witness, it
just does not make sense that he has a capacity to earn in excess of the
relevant figure.92
272 Taking into account all the evidence, I am satisfied that the plaintiff does not
have the capacity to earn in excess of $742 per week and has accordingly
suffered the requisite loss.
273 I am also satisfied this impairment is permanent, the plaintiff having
experienced ongoing pain and restriction for nearly seven years without any
significant improvement.
274 I am also required to consider issues of retraining and rehabilitation pursuant to
ss(g).
275 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 him 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).
276 If a worker satisfies the test laid down by the Act in relation to loss of earning
capacity, then he or she is at large to make a claim for damages, ie both for
pain and suffering and loss of earning capacity.93
277 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for
both pain and suffering and loss of earning capacity.
- - -
92 T133 93 See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [147] and Advanced Wire & Cable
Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170