Adjemian v Victorian WorkCover Authority
[2017] VCC 1890
•15 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-02770
| CHAKE ADJEMIAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 December 2017 | |
DATE OF JUDGMENT: | 15 December 2017 | |
CASE MAY BE CITED AS: | Adjemian v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1890 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to left shoulder and left elbow occurring over the course of employment as a bus driver – disentanglement from other physical and psychological injuries – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity – meaning of “income from personal exertion”
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Roleff v Chubb Insurance Co of Australia Pty Ltd (2011) 31 VR 235; Richter v Driscoll [2015] VSC 457; [2016] VSCA 142; Harris v DJD Earthmoving [2016] VSCA 188; State of Victoria v Rattray [2006] VSCA 145; Alter v Alcon Laboratories (Australia) Pty Limited [2008] VCC 713; Guthrie v Campion Education (Aust) Pty Ltd [2009] VCC 1141; Howell v Border Express Pty Ltd [2012] VCC 1612; Martinson v Transport Accident Commission [1996] VCAT 142; Peoples v I & C Hunt Pty Ltd [2005] VCC 1138; Thompson v Concept Hiring Services Pty Ltd (unreported, VCC, 14 November 2006); Boskovic v Road Maintenance Pty Ltd [2006] VCC 51; Caratozzolo v Metroll Pty Ltd & Anor [2007] VCC 1006; Glazebrook v Accident Compensation Commission (1998) VR 454; Accident Compensation Commission v Alger [1993] 1 VR 379; Abram Coal Co Ltd v Southern [1903] AC 306
Judgment: Application succeeds as to pain and suffering consequences, but fails as to loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr E Makowski | Arnold Thomas & Becker |
| For the Defendant | Mr B McKenzie | Russell Kennedy |
HIS HONOUR:
Preliminary
1 Ms Adjemian suffered injury to her left shoulder and left elbow over the course of her employment as a bus driver with Moorabbin Transit Pty Ltd (“the employer”). She alleges she was required to work in awkward positions, operate a large steering wheel, and change posture to provide tickets and change to customers. She had a period off work, returned on alternative duties, and her employment ended in August 2012 as a result of her injuries.
2 Ms Adjemian resumed employment as a car-driving instructor in 2016, and has continued in that role on a full-time basis to the present time, although earning significantly lower income. She claims a range of domestic, recreational and social pastimes, and activities have been affected or lost.
3 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of her employment from 2007 until 2011 with the employer.
4 The body function said to be lost or impaired is the left upper limb, including the left shoulder, elbow and wrist. The application is brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act, and leave is sought in respect of both pain and suffering and loss of earning capacity.
5 Ms Adjemian and her treating orthopaedic surgeon, Mr Ash Chehata, were the only witnesses called to give evidence and be cross-examined. In addition, several affidavits of the plaintiff, medical, radiological and vocational reports, clinical notes, surveillance video and wage material, was tendered into evidence. I shall not refer to all that material in the course of this Judgment but, rather, those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to in this Judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
6 Ms Adjemian was born in 1969, and is now forty-eight years of age. She finished Year 12, although did not pass the end of year exams. She worked in customer service for a short period, and between 1991 and 2003, worked as a call centre operator. At the same time, and until 2007, she worked as a driving instructor.
7 She commenced work with the employer in January 2007.
8 She was involved in a range of pastimes, and enjoyed knitting and cross stitching, in addition to a range of domestic activities, in particular cooking.
9 She was married in 2014, but divorced in 2015.
10 In order to carry out work for the employer as a bus driver, Ms Adjemian obtained a “heavy vehicle licence”. She also achieved various certificates to enable her to work as a driving instructor.[1]
[1]Defendant’s Court Book (“DCB”) 120
11 In about April 2009, Ms Adjemian complained to her general practitioner of problems with her hands, which was diagnosed as Carpal Tunnel Syndrome. The symptoms included numbness and tingling. Those symptoms have persisted through to the present time and occur, in particular, when she overuses one or other hand, or one hand remains stationary for a period of time. Sometimes she has cramping in both hands, including when gripping a steering wheel. Those symptoms affect her capacity to do needlework and knitting.
The injury and its consequences
12 Ms Adjemian is right handed. Over a period of several months in 2011, she developed pain and stiffness in the left shoulder region. It came about as a result of her activities as a bus driver, including gripping large steering wheels, changing position to give change to passengers when they purchased a ticket, and lifting a coin box. The pain in the shoulder fluctuated.
13 In July 2011, she noticed pain in her left elbow when she awoke one day, which made it difficult to move her arm. The symptoms radiated to her neck and hand.
14 She saw her general practitioner, Dr Henry Monkus of the Chadstone Road Clinic, and initially, Ms Adjemian was off work for about two months with pain and restriction in the shoulder and elbow. She returned on restricted duties and then had periods on and off work. When she attempted to drive a bus again, the pain increased. For a period, she attempted to return to work, but was affected by fumes in an enclosed area. On another occasion, she undertook surveys of passengers over a number of weeks, but suffered pain in the left arm when using a clipboard. There were some disputes with her employer. Her employment was finally terminated in August 2012.
15 From that time, Ms Adjemian was off work over a considerable period and resumed employment as a driving instructor in February 2016 for the RACV Drive School. It was a requirement of her relationship with the RACV that the services would be provided by a company, Cjemian Enterprises Pty Ltd (“Cjemian”), of which she is sole director and shareholder. She currently works full time, five to six days a week, and takes students for either an hour or a forty-five-minute lesson. She owns the vehicle, and pays for all of the expenses associated with the work.
16 The parties have agreed that over the period from 1 July 2017 to 1 December 2017 (twenty-two weeks), the company had gross earnings of $35,028.00, or $1,592.00 per week.
17 As to treatment, Ms Adjemian has been treated largely conservatively. She first saw Dr Monkus, complaining of problems with her elbow. He arranged a left elbow ultrasound of 21 July 2011, which showed a partial tear along the common flexor tendon.
18 In October 2011, Dr Monkus referred her to Mr Chehata, a specialist shoulder and elbow orthopaedic surgeon. He noted the partial thickness tear of the extensor carpi radialis brevis (“ECRB”) tendon, consistent with lateral epicondylitis, or “tennis elbow”. He also arranged nerve conduction studies which he said showed moderately severe Carpal Tunnel Syndrome at the wrist. Subsequent left elbow ultrasounds confirmed the partial thickness tear of the ECRB tendon.[2] He further arranged a left shoulder ultrasound,[3] which showed evidence of bursitis with the rotator cuff intact.
[2]Plaintiff’s Court Book (“PCB”) 93-96
[3]PCB 97
19 In November 2012, Ms Adjemian underwent an autologous blood injection into the tendon, which provided no lasting relief. An ultrasound-guided left shoulder injection was also performed in February 2013, again, without significant long-term improvement.
20 Dr Monkus arranged an MRI scan of the left shoulder in September 2013, which showed:
“1. Complex subscapularis tear with a small full thickness component as described.
2. Tendinosis of the intra-articular biceps.
3. Mild subacromial bursitis.”[4]
[4]PCB 104
21 This full thickness tear was confirmed by ultrasound of the left shoulder of 5 March 2015, and was said to measure 11 millimetres x 11 millimetres axially and 5 millimetres superoinferiorly.[5]
[5]PCB 107
22 A further MRI scan of the left shoulder undertaken on 9 November 2017, ordered by Mr Chehata, concluded:
“Very technically suboptimal study due to patient body habitus and discomfort.
Potential mild subacromial bursitis. No other abnormality.”[6]
[6]PCB 109
23 Although this finding was not referred to in Mr Chehata’s most recent report, he was cross-examined on the issue and said that he had failed to set out the detail of the MRI scan, but had examined it, and said that it was a suboptimal investigation and unreliable for that reason.[7] He concluded that Ms Adjemian had suffered a full thickness tear to the tendon of the left shoulder, as evidenced by the earlier investigations.
[7]Transcript (“T”) 115-117
24 Through to the present time, Ms Adjemian has continued under the care of Dr Monkus. She has had physiotherapy. She currently takes up to six Panadol Osteo per day, but no other prescription medication. She says she has pain in her left elbow and shoulder every day. Her left arm feels “heavy”. She has problems with sleeping, in particular when she turns on the left side. She undertakes most of her own domestic duties, but at a slower pace than before. She says that if she walks for more than five or ten minutes, she gets aching in the left elbow and shoulder.
25 She has developed problems in her cervical spine and has aching in that area. An MRI scan of the cervical spine of November 2017 showed mild degenerative changes at a number of levels.
26 Ms Adjemian is able to carry out her work as a driving instructor, although says that she becomes tired and the job is difficult towards the end of the day. She works up to forty hours per week, which includes travel between appointments. She has difficulty washing her car, and sometimes when she has to intervene when a student is driving.
27 She struggles undertaking knitting and cross-stitching, which she enjoyed before her injury. This is because of problems with her elbow and shoulder, but also with her left and right hands.
28 Ms Adjemian said she would have difficulty with any area of employment which required repetitive or prolonged use of her left arm. She could not return to her work as a bus driver, which she enjoyed.
29 She has developed a psychological reaction to her injury, and has been depressed. Her concentration and memory have been affected.
30 Ms Adjemian has also developed problems with her right shoulder.
Medical opinions
31 The treating general practitioner, Dr Monkus, provided reports which set out the detail of his clinical attendances upon Ms Adjemian over the years. He diagnosed Ms Adjemian as suffering:
·left tennis elbow, including a partial thickness insertional tear of the ECRB tendon;
·left Carpal Tunnel Syndrome;
·right tennis elbow with tendinopathy;
·left shoulder injury shown to be bursitis and bursal impingement with the rotator cuff intact with a tear in the subscapularis tendon.
32 Dr Monkus considered these injuries related to her employment as a bus driver. He noted she also suffered occasional pain in the neck, in particular, when instructing drivers.
33 Despite Ms Adjemian claiming that she had some difficulties working as a driving instructor, nothing in the more recent clinical notes of Dr Monkus would indicate any complaint to him about her capacity to keep doing that work.
34 As stated, Mr Chehata provided an extensive report, and gave evidence. He examined the radiology in respect of the left shoulder and found subacromial bursitis and a partial tear of the left subscapularis tendon. He described her symptoms as quite severe and painful.[8] He said she had adhesive capsulitis or frozen left shoulder[9]. He noted her psychological state had deteriorated, in particular, after she was made redundant by her employer. He said the pins and needles she was suffering in the hands was consistent with Carpal Tunnel Syndrome, but she was reluctant to undertake release surgery. He said repeat imaging in the left elbow area showed tears to the ECRB tendon. He said there were both physical and emotional components to her presentation and that she suffered “central sensitisation” which, he explained, was caused by a constant loading of pain upon her system, although he accepted that there was a substantial organic basis for her symptoms, both in terms of the radiology and the chronicity of pain.[10]
[8]T110, L28
[9]T112, L19
[10]T138, L26
35 Mr Chehata said that it was commendable that Ms Adjemian had returned to work as a driving instructor. He said many patients in her position would not be able to do so.[11]
[11]T132, L21
36 Mr Chehata considered the various alternate areas of employment as suggested by WorkStreams, the vocational assessor. He considered she had the capacity to undertake work as a radio despatcher and an enquiry clerk, but not as a sales assistant, nor in hospitality.[12]
[12]T134–135
37 In December 2014, Ms Adjemian was examined by Dr Jurie Snyman, occupational physician. He received a history of the onset of left shoulder and elbow problems in the course of her employment in 2011. Ms Adjemian complained of dull pain in the left shoulder and pain using her right arm. She complained that her activities of daily living were very limited. Dr Snyman diagnosed left tennis elbow with moderately severe Carpal Tunnel Syndrome in the left wrist and left rotator cuff tendinosis. There was significantly reduced left shoulder movement with tenderness. There was pain in the left elbow and in the cervical spine. He thought that the Carpal Tunnel Syndrome had resolved. The Subacromial Impingement Syndrome in the left shoulder, he thought, was likely to continue and deteriorate. The left tennis elbow had a better prognosis.
38 Dr Snyman thought Ms Adjemian would not be able to return to work as a bus driver because of the pain. He thought she would have difficulty with any job which involved driving, but would have the capacity for alternative employment, starting on a part-time basis. He did not consider Ms Adjemian would have the capacity to work as a courier, hospitality worker, or a sales assistant. His report appears to indicate that Ms Adjemian would have at least some capacity to work as a radio despatcher or enquiry clerk. Further, Dr Snyman indicated that with a graduated return, work as a despatcher or as a sales enquiry person would not be something he would advise against. At the time of Dr Snyman’s examination, Ms Adjemian had not returned to work as a driving instructor.
39 Ms Adjemian was examined by Dr David Fish, occupational physician, in June 2014. He received a history of the onset of left shoulder and left elbow problems in the course of her employment as a bus driver. He noted numbness in the left hand. He noted mild tenderness in the cervical spine and diffuse tenderness over the right shoulder, right elbow, and left elbow. He diagnosed her as suffering left lateral epicondylitis, which he described as mild. He said there was a degree of soft-tissue injury to the left shoulder. The left carpal tunnel had resolved. He described her as having a “heightened pain state”. He said that there was no total loss in respect of those injuries.
40 Ms Adjemian was examined by Professor Geoffrey Littlejohn, rheumatologist, in April 2015. He received a similar history as to the onset of symptoms in the left arm, as was provided to the other medical practitioners. He also noted neck stiffness and discomfort. She complained to Professor Littlejohn of not being able to sit for more than one to two hours, and of the need to move around regularly. She said she could do the cooking, shopping and light cleaning duties, and was able to drive her car, provided it was for less than sixty minutes. He concluded that there was constitutional degenerative tendinopathy of the shoulder and elbow regions, which had been exacerbated by her work as a bus driver. He said there were also degenerative changes in the right elbow. He thought that the symptoms would improve over time. He said she could not return to her employment as a bus driver, but would probably be able to return to alternative duties where her left shoulder and elbow symptoms would not be aggravated. This included work which involved minimal overhead tasks, minimal repetitive gripping, and limitation of lifting less than 5 kilograms. He thought that she could return to work as a radio despatcher, courier, enquiry clerk, hospitality worker or sales assistant, provided she underwent rehabilitation and retraining.
41 Finally, Ms Adjemian was examined by Dr Tony Kostos, rheumatologist, in March 2017. He noted that she had been working as a driving instructor since February 2016, taking up to forty lessons per week, but that she had dropped back to twenty or thirty lessons per week. He examined the radiology and concluded the plaintiff had objective evidence of left shoulder adhesive capsulitis and osteoarthritis at the base of her left thumb. He considered the diagnosis of injury to other areas of her body as incorrect. He thought MRI examinations were unreliable to establish diagnoses to these areas. He thought that she did not have left lateral epicondylitis, but had a Chronic Pain Syndrome to explain the symptoms. To the extent that there was a problem with carpal tunnel, he said this was an idiopathic condition frequently seen in middle-aged women with obesity. He did not think any of the injuries were related to her employment.
Credibility of the Plaintiff
42 I assess the plaintiff is an intelligent person, giving a reasonable account of her injuries, and the effect those injuries have upon her activities of daily living and her capacity for employment. Aside from some minor issues, there were no other significant credit issues put to her in cross-examination. Her credibility is enhanced by her return to full-time work, even notwithstanding ongoing pain and restriction in the left arm.
43 In evidence, Ms Adjemian did say that she had some difficulty continuing in her work, although according to clinical notes of Dr Monkus in 2016 and 2017,[13] she said that she loved to work as a driving instructor, and was able to cope with it. Further, according to her application to renew her authority to work as a driving instructor, signed in September 2016, she met the relevant medical criteria to undertake the work.[14]
[13]Part of Exhibit 3
[14]Exhibit 4
44 Surveillance video of 21 and 22 November 2017 was shown and tendered into evidence[15]. Ms Adjemian was shown to be moving her left and right arms and hands; however, I detected no particular discrepancy between the movements depicted on the video, and her evidence and the histories to the various practitioners. Mr Chehata was shown the surveillance film. He did not suggest there was any significant inconsistency between what was shown and his examination. I do not see this surveillance video having affected the plaintiff’s credibility.
[15]It was agreed the plaintiff had been subjected to 72.5 hours of video surveillance
Analysis – medical evidence
45 I reject the opinion expressed in the report of Dr Kostos. It is at the extreme end of the range and entirely out of keeping with the reports of all of the other practitioners. Most practitioners accept Ms Adjemian suffered a soft-tissue injury to both her left shoulder and elbow, which are work related. I accept she suffers from left lateral epicondylitis or tennis elbow, with tears at the ECRB tendon. Despite conservative treatment, that condition has persisted, and continues to trouble her with pain and restriction in the left elbow.
46 I further accept that Ms Adjemian suffers soft-tissue injury to her left shoulder, including adhesive capsulitis or frozen shoulder, with radiological confirmation of a partial thickness tear to the supraspinatus tendon.
47 I further accept that Ms Adjemian has some degenerative change to the cervical spine, although this, in the scheme of things, is not particularly significant. Likewise, she has evidence of Carpal Tunnel Syndrome, both to the left and right wrists, but I do not regard this as a significant complaint, save that it does restrict her, to some extent, in her pastimes of knitting and cross-stitching.
48 I was impressed by the evidence of Mr Chehata. He is Ms Adjemian’s treating surgeon, and his opinion should be respected. He spoke of the central sensitisation that the pain in the various areas of her body had caused, although accepted that there was a significant physical cause, in particular, arising from the left shoulder and left elbow.
49 As amongst the various practitioners, Dr Monkus, Mr Chehata, Dr Snyman, Dr Fish and Professor Littlejohn, there are no major differences of opinion as to Ms Adjemian’s physical state; all accept soft-tissue injuries to the left elbow and left shoulder, and that they are work related, although there is some difference in opinion as to the extent to which she is affected by those injuries.
50 Having heard the evidence of Mr Chehata, and read his report of November 2017, his opinion is significant and the one upon which I place most emphasis.
Pain and suffering consequences
51 There is no issue that given the injuries to Ms Adjemian’s left shoulder and elbow arose out of the course of her employment as a bus driver, that the two injuries can be aggregated. I ignore the right shoulder injury save to the extent that she is a person with some restrictions in her right shoulder, thus making it harder for activities involving the left and right upper limbs. I do not consider there is a significant disentangling exercise, either in respect of her other injuries or psychological consequences. I accept that she has degenerative change in the neck, but it is not of major significance. I accept that she has issues with her right shoulder but, again, do not regard it as significant. The real problem, from a physical perspective, is the pain and restriction in her left shoulder and left elbow[16].
[16]See Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraphs [24]-[28]
52 I accept that Ms Adjemian requires ongoing conservative treatment from her general practitioner, which is limited, but that is because there is little that can be offered other than management and monitoring. She does not now see Mr Chehata, but that is because he has no surgical option to offer her.
53 The pain in those areas requires her to take a significant quantity of Panadol Osteo each day. I accept that there is a restriction on her domestic and recreational activities, in that while she is able to undertake most of her activities of daily living, regularly, things such as heavier cleaning duties and cooking take a longer time. I accept her evidence that her sleep is affected, in particular, when she sleeps on her left side.
54 I accept that she suffers ongoing pain to the elbow and shoulder in the nature of an ache and heaviness, aggravated, depending upon the activities in which she is involved. In particular, she has difficulties with any activity above shoulder height, or when she is required to lift weights, placing pressure upon her left wrist and elbow. There is no practitioner suggesting there is any particular relief in sight, and the condition is likely to continue into the foreseeable future.
55 There is radiological confirmation of her symptoms, although there was no surgical option open to her. I accept that in relation to her activities of knitting and cross-stitching, which she enjoyed prior to her injury, to some extent, her capacity to undertake these is affected by problems in her right wrist and hand, although, in addition, also her left elbow and shoulder.
56 In these circumstances, I am satisfied that the consequences to Ms Adjemian meet the “very considerable” test as the legislation requires. The consequences to Ms Adjemian are more than significant or marked.
Loss of earning capacity
57 For the purpose of the formula as set forth in s134AB(38)(e) and s134AB(38)(f) of the Act, I am required to calculate Ms Adjemian’s “without injury” earnings. That is a figure which “most fairly reflects” the plaintiff’s earning capacity within the period of three years before or after injury. Each party sought to rely upon comparable employee earnings obtained from the employer.[17] Mr McKenzie urged I should rely upon the 2012 figures of the comparable employees. Mr Brett urged I should average the figures for the 2013 and 2014 years.
[17]Exhibit “C”
58 I am satisfied it is appropriate to have regard to these earnings in assessing “without injury” gross earnings. They are as follows:
Year Ending Employee 1 Employee 2 2012 $28,217.00 (30 weeks) $29,401.00 (30 weeks) 2013 $81,837.00 $85,721.00 2014 $75,449.00 $86,080.00
59 There was no evidence as to whether these employees performed the same bus-driving work as did Ms Adjemian, or worked the same hours. Nor was there any explanation as to why, in respect of Employee 1, there was a lower gross income for the 2014 year than the previous year. As with any employee, income may fluctuate year to year. There may be promotions or demotions, overtime worked or benefits obtained. The Act does not make any provision for the calculation of an inflation-adjusted comparison.[18] Given the 2014 figures are the closest in time, they, in my view, most fairly reflect Ms Adjemian’s “without injury” earning capacity.
[18]See Roleff v Chubb Insurance Co of Australia Pty Ltd (2011) 31 VR 235 at paragraph [23]
60 This leads to a figure of $1,553.16 gross per week. This figure is calculated by averaging the gross income from two comparable employees of the employer for the year ended 2014. Sixty per cent of this figure is $932.00 gross per week. The onus is thus upon the plaintiff to prove that she has suffered a loss of income-earning capacity as a result of her injuries, such that she is not capable of earning this sum in suitable employment.
61 It is then a matter to calculate the “post-injury earning capacity”.
62 I accept the evidence of the various medical practitioners, in particular, Mr Chehata, that in addition to her capacity to work as a driving instructor, Ms Adjemian has the capacity to work as a radio despatch operator, or as an enquiry clerk.[19] According to the report of WorkStreams,[20] those respective areas of employment command a gross weekly wage of $1,262.00, and $940.00. Thus, Ms Adjemian fails to establish a 40 per cent loss of earning capacity, although in relation to the enquiry clerk position, only just.
[19]Reports of Dr Snyman, PCB 40; Professor Littlejohn, DCB 104; Mr Chehata T134-135
[20]DCB 121-123
63 Mr Brett noted Ms Adjemian had no experience either as a radio despatch operator or as an enquiry clerk. He said it was fair to assume that the work as a radio despatcher would require the capacity to work at speed and under stress. He said it was not simply a matter of whether a worker had the capacity to undertake various physical tasks. All of the matters referred to in the definition of “suitable employment” must be examined.
64 The definition of “suitable employment” is, relevantly:[21]
[21]Section 3, Workplace Injury Rehabilitation and Compensation Act 2013
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to the following—
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii)the nature of the worker's pre-injury employment;
(iii) the worker's age, education, skills and work experience;
(iv) the worker's place of residence;
(v) any plan or document prepared as part of the return to work planning process;
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b) regardless of whether—
(i)the work or the employment is available; or
(ii)the work or the employment is of a type or nature that is generally available in the employment market;
… .”
65 In Richter v Driscoll,[22] the Court of Appeal examined the question of “current work capacity” and “suitable employment” in the context of an opinion provided by a medical panel. Ashley and Kaye, JJA, noted that consideration of suitable employment meant more than a simple physical capacity to engage in a range of stated tasks.[23] An inability to return to work must encompass the various matters referred to in the definition of “suitable employment”, although is not confined to those matters.[24] It was appropriate to consider the entirety of a worker’s relevant personal circumstances.[25]
[22][2016] VSCA 142
[23](Supra) at paragraph [76]
[24](Supra) at paragraph [77]
[25](Supra) at paragraph [106]
66 The test for work capacity does not rely upon market factors, such as whether a job actually exists.[26] In Harris v DJD Earthmoving Pty Ltd,[27] Warren CJ and Cavanough AJA noted the test for suitable employment was one of “physical capacity” and not “employability”.[28]
[26]State of Victoria v Rattray [2006] VSCA 145 at paragraphs [16]-[18]
[27][2016] VSCA 188
[28]Harris v DJD Earthmoving Pty Ltd (supra) at paragraphs [49]-[59]
67 As stated, Ms Adjemian is an intelligent woman with good communication skills, and with a range of employment qualifications and experiences. She is forty-eight years of age and lives in the Melbourne area. She has been in full-time employment now for some time. On the one hand, it may be said Ms Adjemian’s age would tell against the prospect of employment. On the other hand, with age comes experience and wisdom. I do not see her age as being a particular barrier to work capacity. Generally, as to Ms Adjemian’s personal characteristics, I see no impediment to employment. As to any other injuries or conditions from which she suffers, including the right shoulder, right elbow, neck and hand, I am not satisfied they constitute any significant medical restriction which would reduce her work capacity. She had the wherewithal and drive to return to full-time employment as a driving instructor after her injury. The same would apply to work as a radio despatcher.
68 According to the WorkStreams’ Vocational Assessment,[29] Ms Adjemian’s transferrable skills were said to include:
[29]DCB 121
“• Industry experience: Ms Adjemian has excellent skills in the Bus industry, driving industry and has also gained skills within hospitality
•Licences/Certificates: Victorian Driver’s License and Bus license
•Communication skills: Ms Adjemian has very good communication skills
•English reading/writing skills: Ms Adjemian has very good reading and writing abilities
•Computer skills: Ms Adjemian has very good computer skills
•Customer service skills: Ms Adjemian has very good customer service skills
•Money handling skills: Ms Adjemian has money-handling experience
•Telephone skills: Ms Adjemian has very good telephone skills
•Clerical skills: Ms Adjemian has good clerical abilities
•Problem solving skills: Ms Adjemian has good problem solving skills
•Time management skills: Ms Adjemian has very good time-management skills
•Attention to detail – Ms Adjemian has very good attention to detail
•Ability to work autonomously: Ms Adjemian is able to work unsupervised
•Ability to work as part of a team: Ms Adjemian is able to work effectively within a team environment
•Ability to supervise/train staff: Ms Adjemian would be able to Supervise staff.”[30]
(sic)
[30]DCB 121
69 Again, according to the WorkStreams’ report, a radio despatcher performs the following tasks:
“• receive and relay radio or telecommunications messages from operational units, customers, the public or organisations such as the police, ambulance and fire services
• coordinate radio or network communications between the operational units
• record critical information from emergency, routine and administrative calls
• relay information to enable mobilisation of appropriate resources and personnel
• start up and maintain communications during emergency situations and guide callers until emergency services arrive at the scene
• prepare accurate and detailed reports of communications traffic handled
• coordinate the movements of mobile units.”[31]
[31]DCB 121
70 Job prospects were said to be good. There was work as a despatch operator in the transport sector, within which Ms Adjemian is familiar. The physical requirements of the position were said to be:
“Job markets Australia outlined that the physical requirements of this role as being ‘sedentary’. Sedentary is classified as having the following criteria:
• Exerting up to 4.54 kilograms of force occasionally [occasionally is defined as any activity or condition that exists up to 1/3 of the time]; and/or
• Exerting a negligible amount of force frequently [frequently is defined as any activity or condition that exists from 1/3 to 2/3 of the time] to lift, carry, push, pull or otherwise move objects, including the human body.
Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and the other sedentary criteria are met.
Given the aforementioned physical requirements, this vocation option is presently in line with the medical opinion of Ms Adjemian’s Treating Medical Practitioner, Dr Monkus.”[32]
[32]DCB 122
71 A similar assessment was made in respect to the position of enquiry clerk. The tasks were set out, labour market analysis examined, and the physical requirements were assessed as “sedentary”.[33]
[33]DCB 123-124
72 In my assessment, Ms Adjemian has the capacity to retrain and adapt into work either as a radio despatch operator or as an enquiry clerk. While, undoubtedly, aspects of the work in these areas may cause some difficulties for her left arm, I am of the view that the perseverance she has shown in returning to employment could be applied equally to these areas of work. I note she previously worked in a type of call centre. Taking account of the matters referred to in the definition of “suitable employment”, she has the capacity for employment in these areas and thus I am not satisfied Ms Adjemian satisfies the statutory test.
73 Although it is not strictly necessary, given my findings in relation to alternative work capacity, it is appropriate to consider the parties’ submissions in respect of Ms Adjemian’s income as a driving instructor. As stated, the earnings of the company, Cjemian, from 1 July 2017 to date, is $1,592.00 gross per week. From this amount, the company has to pay various expenses associated with the business of a driving instructor, including the costs of the vehicle involved and various administrative expenses.
74 For the year ended 30 June 2017, Cjemian earned $80,102.00 gross.[34] The expenses, including motor vehicle expenses, when deducted, left a modest net profit for the year of $1,287.00.[35] To this should be added the salary as having been paid to Ms Adjemian. That is a total of $25,287.00, or $486.29 per week. Mr Brett urges I should consider this figure as “the worker’s gross income from personal exertion” for the purposes of s135AB(38)(f). Mr McKenzie urges I ought to accept the gross figure of Cjemian of $1,592.00 per week, taken from the current year. If the first figure is assumed, the statutory test for loss of earning capacity is met. With the latter figure, it is not.
[34]Exhibit “A”
[35]See “Profit and Loss Statement” – part of exhibit “A”
75 Section 134AB(38) provides that “income from personal exertion” has the same meaning as s6(2) of the Transport Accident Act 1986.
76 Section 6(2) of the Transport Accident Act 1986 provides:
“(2) In this section—
…
income from personal exertion in relation to a person means—
(a)the amount that is the income of that person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered; and
(b)the proceeds of any business carried on by that person either alone or in partnership with any other person;
… .”
77 Sub-paragraph (b) is relevant to the present case. The question is then whether the phrase “the proceeds of any business carried on by that person” ought to mean the gross income of the business (in this case that of Cjemian) without deduction for expenses, or whether it should mean before tax earnings of the business, having deducted expenses.
78 I was taken to a number of authorities of judges of this Court who have considered the issue, including Alter v Alcon Laboratories (Australia) Pty Limited,[36] Guthrie v Campion Education (Aust) Pty Ltd,[37] and Howell v Border Express Pty Ltd.[38] In my respectful view, the decision of his Honour Judge Coish in Guthrie is the appropriate analysis to be undertaken in a case of this nature.
[36][2008] VCC 713, his Honour Judge Misso
[37][2009] VCC 1141, his Honour Judge Coish
[38][2012] VCC 1612, his Honour Judge Bowman
79 In Guthrie, his Honour Judge Coish considered other authorities, including Martinson v Transport Accident Commission,[39] where President Galvin said:
“In my view, the proceeds of a business is the profit of the business in a particular financial year and needs to be equated with the income from personal exertion for that year. It is in effect the applicant’s pre-tax profit for that year. That is not only consistent with the wording of the Act, it is consistent with the object of providing suitable and just compensation. It is not an object of the Act to provide compensation which would exceed what the applicant would actually have earned after deduction of expenses and before payment of income tax. In any year, in any business, there may well be various expenses reducing gross profit to profit or taxable income, some of which may be of a recurring nature and some of a non-recurring nature. In pursuit of fair and reasonable compensation, it is the Tribunal’s task to discover the taxable earnings and not to assess compensation by reference to gross income … .”
[39][1998] VCAT 142
80 His Honour Judge Coish referred to other decisions which supported his conclusion that “the proceeds of any business” meant income after deduction of expenses, including Peoples v I & C Hunt Pty Ltd[40] and Thompson v Concept Hiring Services Pty Ltd.[41] He referred to other authorities of this Court which came to a different conclusion.[42] He, appropriately in my view, cautioned against the interpretation of “income from personal exertion” as was referred to in Glazebrook v Accident Compensation Commission,[43] given the entirely different statutory scheme under consideration in that case.
[40][2005] VCC 1138
[41]Unreported, County Court of Victoria, her Honour Judge Lewitan, 14 November 2006
[42]His Honour Judge Strong in Boskovic v Road Maintenance Pty Ltd [2006] VCC 51; her Honour Judge Wilmoth in Caratozzolo v Metroll Pty Ltd & Anor [2007] VCC 1006 and his Honour Judge Misso in Alter v Alcon Laboratories (Australia) Pty Limited (supra)
[43](1998) VR 454
81 To ignore expenses, properly incurred, in the running of a business such as a driving instructor, would result in potentially significant unfairness to a plaintiff. It would lead to unbalanced comparison between an employee on a fixed wage working as a driving instructor, and one who had a corporate structure where the expenses were not taken into account. The Act is legislation intended to provide benefits to injured workers and should be given wide and beneficial interpretation[44].
[44]See Accident Compensation Commission v Alger [1993] 1 VR 379 at 385 and reference to Abram Coal Co Ltd v Southern [1903] AC 306
82 There may be some cases where expenses claimed as part of a business are either artificially inflated or constructed by innovative accounting practices to increase expenses and decrease before-tax earnings. Each case should be treated on its own facts, but where such expenses are included, they may well form part of gross earnings from personal exertion. In the present case, Ms Adjemian was not cross-examined on whether or not there was any inflated or inappropriate calculation of expenses. She acknowledged that she had to pay a commission to the RACV in order to conduct her business, and the item “depreciation” presumably relates to the vehicle she uses. So far as one can consider a profit and loss statement on its face, the expenses claimed appear legitimate and appropriate.
83 For all these reasons, I am satisfied that, even accepting there may be some beneficial income of a personal nature which should be credited to Ms Adjemian from the gross income of the company, including superannuation, phone and internet expenses and the like, nonetheless, a figure of $500 to $600, approximately, gross per week is appropriate as her current gross income from personal exertion. If one adopts this method of calculation of after-injury earnings, the plaintiff meets the statutory test.
Conclusions as to loss of earning capacity
84 It is clear from the provisions of s134AB(38)(e) and (f), that in assessing a worker’s loss of earning capacity, the test is concerned with not only a worker’s actual post-injury earnings, but what a worker is “capable of earning in suitable employment” as at the date of application. If one were to adopt Ms Adjemian’s actual current earnings from suitable employment, then she meets the statutory test and her application as to loss of earning capacity should succeed. However, given I have determined that she has the capacity to work as either a radio despatch operator or as an enquiry clerk, it is not to the point that other areas of employment suggested by WorkStreams include tasks which I am satisfied she does not have the capacity to undertake. The language of the Act does not require a balancing exercise of areas of employment that can or cannot be undertaken. Setting aside, for present purposes, work as an enquiry clerk, given the gross salary is almost equivalent to 60 per cent of “without injury” earnings, I am satisfied that Ms Adjemian has the capacity to work as a radio despatch officer, and given the gross salary of that job, she does not meet the statutory test. In those circumstances, her claim in respect of loss of earning capacity fails.
85 I shall make appropriate orders.
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