Armstrong v Fenner Dunlop Australia Pty Ltd
[2018] VCC 1066
•30 May 2018 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-05938
| ANDREW ARMSTONG | Plaintiff |
| v | |
| FENNER DUNLOP AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 May 2018 | |
DATE OF JUDGMENT: | 30 May 2018 (Revised) | |
CASE MAY BE CITED AS: | Armstrong v Fenner Dunlop Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1066 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the left shoulder – pain and suffering conceded – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: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; The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Forbes QC with | Shine Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahony Lawyers |
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 the defendant on 4 June 2014 (“the said date”).
2 The application is brought pursuant to s134AB(37)(a) of the Act. The relevant body function is the left shoulder.
3 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, pain and suffering having been conceded prior to the date of hearing.[1]
[1]Transcript (“T”) 1
4 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
5 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
6 In this 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.
7 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
8 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
9 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
11 The plaintiff relied upon two affidavits and he was cross-examined. The defendant relied on an affidavit sworn by its HR Systems and WC Adviser, Natasha Richardson, on 17 May 2018. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
12 The plaintiff is presently aged fifty, having been born in January 1968. He is married and has two children who do not live at home.
13 The plaintiff is right handed, but ambidextrous, writing with his right hand and throwing a ball with his left. This has always been pretty much the case.[4] Predominantly, he does work duties with his right hand.[5]
[4]T15
[5]T25
14 In 1984, the plaintiff finished Year 11. He then completed a multiple trade course at Sunshine Technical School which involved welding, mechanics and fitting and turning. Over the following years, he worked in a variety of roles including dockhand, storeman, picker and packer, trades assistant and pizza delivery.
15 From 1992 to 2002, the plaintiff worked as a trade assistant machine installer at S.I. Engineering Pty Ltd, but the majority of his work was for Olex in Tottenham. From 2002 to November 2003, he worked directly for Olex as a leading hand, machine operator and forklift driver.
16 The plaintiff transferred to work directly for Olex as they had a contract to install machines. In-house at Olex, he obtained a Certificate III in Warehousing Operations and a Certificate III in Competitive Systems and Practices which involved simplifying the system.[6] He also obtained a Certificate III Warehouse and Lean Manufacturing. He could understand what he learned in these courses.[7]
[6]T13
[7]T14
17 There were a number of retrenchments at Olex in Tottenham towards the end of the plaintiff’s employment. Manufacturing then partially moved to New Zealand and the remainder went to Lilydale. The plaintiff was earning good money at Tottenham working as a machine operator and he worked considerable overtime.[8]
[8]T6
18 With the end of that employment, the plaintiff agreed his era of earning good money out of manufacturing at Tottenham had come to an end. He received a package of about $65,000. He looked for work in the next year, initially getting some work from recruitment agencies through a family friend.[9]
[9]T6
19 The plaintiff worked for a short period through the agency Downer EDI Ltd as a casual storeman and forklift driver. It was stores work, relocation work from New South Wales to Victoria. He had previously done this type of work which was necessarily temporary work.[10]
[10]T7
20 The plaintiff commenced work with the defendant on 1 May 2014 as a machine operator on a permanent casual basis, working about thirty-eight hours a week. His work was manual in nature and was often heavy and required him to apply force.
21 The role was similar to that which the plaintiff performed at Olex, but on different rubber machinery. He was hoping to become a permanent with the defendant. The plan was to work three months’ casual, three months’ trial and at six months, then be put on full time. Once that had happened, he was hoping to rise within the defendant to the role of leading hand, as he advised when he was interviewed for the job.[11]
[11]T7
22 On the said date, the plaintiff felt pain in his left shoulder when, while pulling rubber through a roller, the rubber got stuck, causing a wrenching feeling in his upper limb, shoulder and arm (“the incident”).
23 Initially, the plaintiff was reluctant to complain about his injury. He had only been with the defendant for a few weeks and was afraid he might be let go, or his hours reduced. He continued to work, despite ongoing pain. When he got home from work, he applied ice and heat to his left shoulder.
24 As his shoulder pain did not improve over the following weeks, the plaintiff attended a physiotherapist, Richard McGlynn. The plaintiff also reported the injury to the defendant.
25 In June 2014, Dr Tan, general practitioner, recommended a continuation of physiotherapy and put the plaintiff on light duties with restrictions not to lift above 5 kilograms and to avoid pushing and pulling movements.
26 Following investigations of his left shoulder in July 2014, the plaintiff was referred for a left shoulder biceps sheath injection, which took place on 29 July 2014. This procedure provided some temporary pain relief only.
27 On about 28 July 2014, the plaintiff completed and lodged a WorkCover claim form for his injured left shoulder. His claim was subsequently accepted.
28 On about 3 September 2014, Dr Tan referred the plaintiff to Mr Csongvay, orthopaedic surgeon, who recommended left shoulder surgery. On about 14 October 2014, the plaintiff had a left shoulder arthroscopy/biceps tenotomy and tenodesis performed by Mr Csongvay (“the operation”).
29 After the operation, the plaintiff’s left arm was put in a sling, and he was discharged with medication, and instructed to engage in gentle exercises.
30 The plaintiff’s pain and mobility in the left shoulder improved for a short time after the operation.
31 In about May 2015, the plaintiff started attending Kealba Family Practice, where he has been regularly seeing Dr Govender, general practitioner, for treatment and WorkCover Certificates since.
32 Dr Govender referred the plaintiff for further investigations and sent him back to his surgeon for further opinion.
33 In about mid-October 2015, the plaintiff saw Mr Csongvay again. He reviewed the recent investigations and recommended another ultrasound-guided injection and further conservative treatment. However, he considered that if his pain persisted, the plaintiff should consider a total left shoulder replacement. Mr Csongvay was against this surgery, given the plaintiff’s age, and encouraged him to try and remain active with strengthening exercises.
34 The plaintiff had a further shoulder injection on 10 November 2015 but that did not resolve his pain.
35 In about December 2015, Dr Govender referred the plaintiff to Mr Price, orthopaedic surgeon, for a second opinion. When he saw Mr Price in February the following year, the plaintiff was told he should try and avoid surgery for as long as possible. Conservative treatment was recommended, including medication, gentle exercise and avoiding pain aggravating activity.
36 An MRI scan of the plaintiff’s left shoulder was carried out on 4 November 2016.
37 As a result of his left shoulder injury and pain, and activities modification to undertake more daily activities using his right arm, the plaintiff developed pain in that area. The onset of symptoms in his right arm seemed to coincide with him doing a lot of gym work to try and rehabilitate his left arm. He underwent investigations of his right shoulder in late 2016.
38 As a result of his injuries, the plaintiff had become anxious and depressed, and in early 2017, he started psychological counselling sessions with Dr Morrell to help try and manage his emotions and reaction to his injuries.
39 In the plaintiff’s first affidavit sworn on 16 August 2017, he described his ongoing constant left shoulder pain, which resulted in restrictions on everyday activities and household duties.
40 The plaintiff’s left shoulder injury and pain had significantly affected his hobbies and interests, including gardening and attending car shows, and also caused him significant sleep problems. At that stage, he was attending gym a couple of times a week to perform a range of motion and light exercises. He was also having chiropractic treatment and acupuncture sessions.
41 The plaintiff was then not keen to take medication, so he tried to manage pain with the use of ice and heat packs, but when his pain was really bad, he took Nurofen tablets. He understood he may need left shoulder replacement surgery in the future, but that he should wait as long as possible.
42 The plaintiff’s injuries had had a significant effect on his mental state and his marital relationship.
43 Following the incident, the plaintiff was placed on modified duties. After the operation, he did not work for about four to five weeks, then resumed modified duties with restrictions, limiting manual handling and lifting above shoulder height.
44 In about March 2015, the plaintiff’s employment was terminated, and he has not worked since due to his left shoulder injury and pain.
45 When working on light duties, the plaintiff attended work regularly and reliably. He agreed he told Dr Jager he was doing a good job at the time his employment ceased. He was not retrenched. He was sacked by the defendant when told it had classified his injury as not work related.[12] Before that time, he was aware a doctor had said his shoulder problem did not have anything to do with work anymore.[13]
[12]T16
[13]T17; Dr Boys’ report dated January 2015
46 At the time the plaintiff’s employment was terminated, he was working a full ten hours, four days a week, mainly assisting on light duties. For a period he had worked five hours a day, and then built up to full time.[14] There were periods until the time he was sacked when he did not work full time after the operation.[15]
[14]T18
[15]T30
47 Before he was sacked, the plaintiff was doing log in work on the computer, like data entry. He was shown how to do it by another worker on light duties. He picked it up all right.[16] He was then put on a maintenance job.[17]
[16]T18
[17]T19
48 When doing the computer data entry, the plaintiff was inputting from log sheets using his right hand. Computer use undertaken by the plaintiff at Olex was just using a keyboard to run the machine. It was simplified.[18]
[18]T19
49 As at the date of the incident, the plaintiff’s gross pre-injury average weekly earnings were about $1,054 for a thirty-eight hour week. He did not know, and really could not say, whether the pay rates Natasha Richardson deposed to were correct.[19]
[19]T8; as at said date, machine operator $27.75 per hour, leading hand $29.31 per hour. Current hourly rate for leading hand $30.19 per hour.
50 The majority of the plaintiff’s work experience had been as a machine operator, forklift driver and leading hand, and he relied on his physical fitness and unimpeded use of his arms and shoulders to perform manual handling work. He enjoyed working, and earned a reasonable wage. He remained keen to work, but did not know what he could do which would not aggravate his injuries or be at the expense of his health. Overall, while he wanted to work, he did not believe he was an attractive candidate for employment in the “real world”.
51 The plaintiff swore a further affidavit on 21 May 2018.
52 The plaintiff last worked for Olex around 29 November 2013. In the two months prior to that, he took about six weeks off to get married and go on his honeymoon. He did not work overtime during those periods. He believed he was paid about $39,285 for his work at Olex from 1 July 2013 to November 2013. He also got a significant redundancy payment when he finished in that job.
53 Despite getting that money, the plaintiff “did not want to sit on his backside,” so after Christmas, he tried to get back to work as quickly as he could through recruitment agencies, including Jobs Force and Recruitment Place.
54 Even though the plaintiff had been made redundant, he was very keen to get on with his career and get back to earning good money, like he had done at Olex.
55 The work with the defendant had a lot of overtime. They worked a four-day week of ten shifts and often would be asked to work on a Friday or Saturday as overtime. It was expected, if the machine on which you were working was to run, that you would be available to do the overtime.
56 In the time the plaintiff worked for the defendant he was asked to do overtime two or three times. He was paid at time and a half for the first three hours and, thereafter, double time. On that basis, the plaintiff could earn an extra $500 a week or more in overtime, in addition to his basic wage. He observed that, most weeks, the factory operated on a Friday and sometimes also a Saturday.
57 The plaintiff underwent further investigations of his left shoulder in August 2017 and saw his specialist again. During the rest of that year, he attended regular exercise physiology classes and had a home-based exercise program. He also used Voltaren gel on his shoulder and went to hydrotherapy regularly.
58 When the plaintiff saw Mr Carey for the insurer, he recommended the plaintiff have right shoulder investigations, which were undertaken in February 2018. A nerve conduction study also showed the plaintiff had some left-sided Carpal Tunnel Syndrome.
59 In March 2018, Mr Csongvay advised the plaintiff that there was not much he could do for his right shoulder pain and he would just have to manage it as best as he could. He told the plaintiff he would need left shoulder surgery one day and should delay it for as long as possible.
60 The plaintiff is very worried about having to have this surgery. Mr Csongvay recommended self-managed exercise and physiotherapy, and did not want the plaintiff to do gym work, so he stopped it.
61 The plaintiff currently attends hydrotherapy about three days a week and does self-managed exercises regularly. He uses Voltaren gel on his shoulder frequently. He sees his general practitioner around once a month about his injuries and also about blood pressure and cholesterol. A couple of times a week, the plaintiff takes Nurofen, but does not like taking it, as he is averse to taking medication.
62 The plaintiff confirmed he takes medication occasionally, but he does not take strong medication that might affect his mental functioning.[20]
[20]T16
63 The plaintiff’s current situation has not changed much since he swore his first affidavit.
64 The plaintiff continues to have constant aching pain in his left shoulder. Whenever he does anything strenuous or repetitive with his left shoulder, or tries reaching overhead, out in front, or down low, the pain in that area just gets worse. He feels like the symptoms in his left shoulder are slowly getting worse as time goes by.
65 The plaintiff experiences flare ups of his left shoulder pain, which can come on because of specific activity, or sometimes randomly. When they occur, he has to stop what he is doing and rest, sometimes for more than an hour.
66 The plaintiff still struggles to sleep because of left shoulder discomfort. He feels tired and sore in the mornings, like he has not had good sleep, and he often naps during the day.
67 The plaintiff has a lesser degree of aching pain in the right shoulder. The problem is that because of how bad his left shoulder is, he has to use his right arm much more than previously. He believes that is what has brought about right shoulder pain, and it means it is very hard for him not to do things that aggravate his right shoulder.
68 The plaintiff agreed his surgeon told him to stop doing gym and instead do hydrotherapy, and he had followed that advice. His right shoulder was a bit better because he was not relying on it as much.[21]
[21]T15
69 The plaintiff confirmed ongoing problems with domestic heavy housework and gardening, not being able to resume his hobby of detailing prestige cars and attending car shows, which he previously enjoyed.
70 The plaintiff has gained about 20 kilograms, partly due to being inactive and also due to depression. He confirmed his emotional reaction to his shoulder injuries. He continues to see a psychologist.
71 The plaintiff believes he has done his absolute best to get back to work, but he has become very discouraged by his lack of success. He complied with all the sessions and programs that IPAR offered him. He tried to find work and had applied for heaps of jobs.
72 IPAR put the plaintiff through a basic computer course at Kangan TAFE. He attended for two hours at night over six weeks. It was of some help, but he found it hard to remember the things they were trying to teach him. He understood the majority of the basic skills he was taught.[22]
[22]T19
73 The plaintiff was looking for very light customer service sort of work. He wanted to try part-time hours, if they were available, but he applied for full-time work because he was desperate. He had no idea whether he would be able to manage the work physically, but wanted to get back to work and needed money, so he did his best to find a job.
74 Unfortunately, despite his best efforts, the plaintiff only heard back on two jobs, one of which was through an agency. When they rang back, he told them he had a shoulder problem, and because of that he was trying to get out of manual labour. He never heard anything further.
75 The plaintiff became very discouraged by about August-September last year, and did not think he had looked for work since. The knockbacks were really impacting his mental health, and he felt very down about his situation and upset he was not working, and he had lost a lot of self-esteem.
76 The plaintiff agreed he was essentially looking for light manual work after being retrenched and continued to do so for some time until recently giving up his search for work.[23]
[23]T10
77 Dr Govender certifies the plaintiff fit for light work.[24] If he could find some part-time, very light work, then the plaintiff would certainly give it his best shot, but he does not really know how he would go being a consistent and reliable employee. He is concerned that the flare ups of left shoulder pain, in particular, mean he will have trouble turning up to work every day or remaining there for the full shift.
[24]T9
78 The plaintiff has been a manual worker all his life and does not have any real qualifications. He does not have computer skills that can translate into a work setting. He can browse the internet and send emails, but that is about it.
79 Unfortunately, it seems very unlikely the plaintiff will get back to any manual work, which he has done all his life. He was good at it, and got paid well for his skills.
80 When the plaintiff’s shoulders were good, he consistently had the capacity to earn over $100,000 gross per year while at Olex. Although earning less with the defendant when he was injured, he had only really just started there. He wanted to stay in that job and would have been content to stay there until a better opportunity presented itself.
81 After his injury, the plaintiff became aware, through his brother-in-law who worked at Mobil in Altona, that positions were being advertised there. Had he not been injured, that sort of work opportunity would be something that interested him. The jobs were as control operators, and he understood workers earned similar money as he had been earning at Olex. He believed if he had not been injured, then he would have been an attractive candidate and would have been able to earn something like his Olex wage.[25]
[25]T20 – in cross-examination, the plaintiff did not seem to know much about this role
82 In cross-examination, the plaintiff was shown a copy of his résumé which he used to get his job with the defendant. He agreed he had skills in warehousing. He had been shown how to use SAP – a software system that showed the work process had been completed, tracking a cable from the start of the manufacture through to the end product. He was not formally trained in this system. He did it as a relief job for two weeks. He partially coped with it.[26]
[26]T11
83 At times, the plaintiff had to get help using SAP when he made mistakes. It is not a system that he has ever come across as having a use outside manufacturing.[27]
[27]T24
84 The plaintiff confirmed that pre injury, he had worked in store work, warehousing and stocktake. He had been a leading hand, machine operator and forklift driver with Olex, and managed floor staff on rotating shifts.[28] He followed operating procedures via process cards which was a step by step process of the job, signing off on a machine when a cable had completed the process. He was trained, and he was able to understand the training.[29]
[28]T11
[29]T12
85 The plaintiff disagreed that his role as a trades assistant involved any customer contact. He was then doing work for Olex, who was the customer.[30]
[30]T12
86 If nothing had gone wrong, the plaintiff was hoping to become a leading hand with the defendant and aimed to get where he was at Olex.[31]
[31]T20
87 As to future work, it would depend on what was required of a machine operator whether the plaintiff could do the job. He knew it could be quite physically demanding and could be quite light.[32] He could picture light assembly work, but did not know whether he could do that work standing at a bench, assembling light products. He did not know if he would be able to do customer service work or trade sales, machinery hire assistant, or guardhouse control room operator. He did not know how he would cope with the role of storeman dealing with light products. His problem is he has trouble with repetitive lifting, which he has discussed with his doctors, predominantly with his left arm, and becoming a problem with his right.[33]
[32]T21
[33]T22
88 The plaintiff agreed the major restriction on light duties with the defendant was no overhead reaching or work with his left arm. He would be reluctant to take on any job that involved a lot of that type of work.[34]
[34]T22
89 The plaintiff did not discuss with Dr Baynes the job of order picker and despatch clerk in any detail. The plaintiff could not answer whether he could do the picking and packing job as described, because repetitive movements caused his shoulder to grind.[35]
[35]T22
90 The plaintiff said that he did not know how he would go with a number of the jobs suggested by Dr Baynes as he was not 100 per cent familiar with the requirements of the jobs.[36]
[36]T30
91 The plaintiff did not know if he could work as a despatch clerk in a role involving tracking by computer and no heavy lifting or physical work, with in-house training for computer skills.
92 The plaintiff had worked as a picker and packer at CIG Medical, picking and packing medical products for hospitals, with products of various sizes, from very light to very heavy.[37]
[37]T23
93 The plaintiff could not do the CIG job now because of the repetitive movements involved and the reaching from above head height to the ground. The job also involved forklift driving. He did not think he could drive a forklift now because of problems using his left hand to steer.[38]
[38]T24
94 The plaintiff was shown photographs of the work involved as an order picker suggested by Recovre. He would not be able to do the above shoulder height lifting required or any repetitive work. He would also have problems with bending in the manner shown in photographs attached to the Recovre report.[39]
[39]T24
95 The plaintiff confirmed he had been looking, at least earlier, for light stores work or picker and packer work.[40] He did so because it was a familiar field that he had worked in. He was being advised by his surgeon to be careful what he did at work.[41]
[40]T24
[41]T25
96 The plaintiff has not been looking for customer service work because it is not an area he is familiar with. He does not really like working with large groups of people, and he has never dealt with the public before. In the past, Olex was the customer. The plaintiff has never had to work in a job interacting with the public.[42]
[42]T25
97 The plaintiff had trouble finding work when he left Olex. It was a different world to what it was twenty years ago when he started there. He had a casual job at Downer and after he applied for quite a few jobs, he applied with the defendant. He has kept in minimal contact with people he had worked with at Olex since being retrenched. He had not applied for a job at Pirelli which was in a similar role to that he performed at Olex because Pirelli is located on the other side of town in Nunawading.[43]
[43]T27
98 The plaintiff was aiming with the defendant to get where he was at Olex by being a leading hand. He knew probably about 90 per cent of the machines. He was paid as much as he was able to earn at Olex. There they had the cluster system, which meant, as you learnt the machines you got paid a higher pay rate. He was the leading hand, the first aider and also a responder. He thought, when he finished at Olex, he was being paid about $33 an hour as a leading hand, and in the last two years there, earned over $100,000 a year.[44]
[44]T27
99 The plaintiff was able to earn these amounts as he did roughly two days a week overtime. Overtime was open when he started with the defendant, and it would be nearly asking every day if you could work. If overtime had been available, he would have worked it.[45]
[45]T28
100 One of the plaintiff’s payslips in February 2015 showed gross earnings in one week of $1,790. During that week, in error, he had been given overtime while on light duties. The majority of his duties, at that stage, were assisting, “more for safety purposes”.[46] He was observing and did some manual tasks, depending on the job. He was observing a co-worker rewinding a belt.[47] Someone else would be coming in to do the job when he left.[48]
[46]T28
[47]T29
[48]T30
Summary of the Plaintiff’s income from personal exertion
Financial year Source Gross payment 2009 – 2010 Olex $89,426.00 2010 – 2011 Olex $93,992.00 2011 – 2012 Olex $109,119.00 2012 – 2013 Olex $104,307.00 2013 – 2014 Olex
Jobs Force Australia
The Recruitment Place
Fenner Dunlop
$39,285.00
$7,238.00
$2,316.00
$6,181.00
2014 – 2015 Fenner Dunlop $38,432.00 2015 – 2016 Fenner Dunlop $27,713.00
Medical evidence regarding work capacity
101 Dr Govender, the plaintiff’s general practitioner, currently certifies him as having a capacity for suitable duties, not pre-injury duties.
102 In his most recent report, Dr Govender confirmed he thought the plaintiff had an incapacity for employment but did not give further details or comment on the hours per week he thought the plaintiff was able to work.
103 The plaintiff’s treating orthopaedic surgeon, Mr Csongvay, in his most recent report of May 2018, simply concluded the plaintiff would have difficulty managing with even minimally physical work.
104 Mr Csongvay advised the plaintiff against undertaking any physical activities, even with his right shoulder, in order to minimise progressive wear of his shoulder joint and progressive irritation of his inflamed rotator cuff.
The Plaintiff’s medico-legal evidence
105 Following re-examination in April 2018, Mr Miller, orthopaedic surgeon, concluded the plaintiff had a light work capacity. He did not comment on the hours the plaintiff was capable of working or the jobs suggested by Dr Baynes and Recovre.
106 Dr Slesenger, occupational physician, re-examined the plaintiff in March 2018.
107 With regard to the plaintiff’s left shoulder impairment alone, Dr Slesenger advised him against returning to pre-injury duties. With regard to suitable duties, he thought the plaintiff now has the capacity to return to work with restrictions, namely avoiding sustained forward reaching, sustained over shoulder reaching, avoiding push, pull, carry or lift over 5 kilograms, and avoiding repetitive shoulder tasks. However, Dr Slesenger remained of the opinion there were barriers to the plaintiff returning to work on a consistent and reliable basis.
108 Dr Slesenger suggested similar restrictions in relation to the plaintiff’s right shoulder.
109 Dr Slesenger concluded that the plaintiff would be an unreliable and inconsistent employee. He thought the plaintiff lacked the physical capacity and computer skills to undertake the roles suggested by Dr Baynes and Recovre.
110 While in both reports Dr Slesenger concluded the plaintiff had capacity for employment within a range of restrictions, he thought it was difficult to suggest a job the plaintiff was able to perform as you had to look holistically in terms of the plaintiff’s age, his past experience and the variability in his symptoms. Dr Slesenger thought the plaintiff did not have a capacity for any of the suggested jobs within these restrictions. Dr Slesenger was unable to find a “job fit”.[49]
[49]T36
111 Dr Slesenger confirmed the plaintiff had basic computer skills and that he would be able to send emails but not work on Excel spreadsheets.[50] Whilst he did not know of any earlier in-house training undertaken by the plaintiff, he knew the plaintiff had no qualifications.[51]
[50]T37
[51]T38
112 Dr Slesenger agreed the plaintiff was literate and gave a clear consistent account, and there was no particular difficulty in taking a history and interacting.[52]
[52]T38
113 Dr Slesenger denied he might have been hasty in dismissing the suggested jobs, because of the plaintiff’s inability to learn and his lack of computer knowledge.
114 Dr Slesenger explained that the Certificate III’s held by the plaintiff were a fairly basic level entry certification, and were obtained in-house. That sort of training may have been to ratify existing skills. He was always slightly wary of those types of qualifications because of the standards involved and it is often a “box ticking exercise”. Those certificates did not fundamentally change his opinion of the plaintiff’s capacity to work in an office environment.[53]
[53]T44
115 Dr Slesenger explained the plaintiff is a fifty-year old man with no office experience and no experience of more complex computer skills required within a modern office environment. He thought the plaintiff lacked the ability to manage and interact with personnel within an office environment and did not think his qualifications, as such, really indicated the plaintiff could transition into that environment, and the skills that were required therein.[54]
[54]T41
The suggested jobs
116 Dr Slesenger advised the plaintiff against returning to work as a customer service assistant. This could not be regarded as suitable employment as the plaintiff had no experience within this role nor did he have the computer skills to perform it. Dr Slesenger agreed that this role could mean many, many things, but he did not think the plaintiff had the experience or skills mix, or computer skills, to do the job.[55]
[55]T45
117 Dr Slesenger had reservations with regard to the plaintiff’s capacity to perform work as a counter concierge as he would be required to receive incoming deliveries and there may well be some manual handling with baggage.[56]
[56]T46
118 In addition, the plaintiff would be required to operate switchboards or consoles, and Dr Slesenger thought this was likely to be outside his capacity limits given his lack of computer skills.
119 Dr Slesenger advised the plaintiff against returning to work as a warehouse supervisor. In his experience, this role usually required a significant degree of computer literacy to operate entry systems. Warehouse supervisors were often required to assist staff performing manual tasks, for example covering for staff shortages. Dr Slesenger also thought that the plaintiff did not have the skills or experience to perform this role.
120 Dr Slesenger explained that the job of a warehouse supervisor was different to having warehouse experience. It had a much higher level of management and involved managing staff. The inflow had to be managed, as did repairs to equipment. A supervisor would be also required to liaise with the company as a whole, depending on the type of warehouse, and often have to deal with customers and their complaints.[57]
[57]T47
121 Dr Slesenger had not seen anything to indicate the plaintiff could be up-skilled to learn that sort of information.[58] The certification he had did not take him to the next level as a diploma or advanced diploma may indicate. Dr Slesenger had not seen any evidence that indicated to him that the plaintiff could go to a much higher level in a different industry.[59]
[58]T47
[59]T48
122 In Dr Slesenger’s experience, parking officers are usually required to operate computerised ticketing equipment and may be required to perform manual handling tasks while servicing and maintaining automated ticketing equipment. In addition, such workers are usually required to drive vehicles and they are also required to perform cleaning tasks. Dr Slesenger thought some of those tasks were likely to be outside the plaintiff’s capacity limits and he also did not have the experience to perform some of those tasks.
123 Dr Slesenger seemed to think this suggested job was one of a car park attendant, and commented on this role in his report. A worker in that role, in his experience, is required to do substantially more than just inspect cars and make sure they were all ticketed. Taking the job as a whole, he thought the plaintiff was going to have difficulty with the aspects involved.[60]
[60]T50
124 Dr Slesenger advised the plaintiff against returning to work as a station attendant as, in Dr Slesenger’s experience, the job demands were likely to require manual handling outside the plaintiff’s capacity limits.
125 Dr Slesenger advised the plaintiff against returning to the role of order picker suggested by Recovre. That job was repetitive and required a worker to maintain sustained forward reaching, undertake over shoulder reaching, and manoeuvring boxes weighing up to 5 kilograms.
126 Dr Slesenger was taken to the suggested job as an order picker role where there was an effective pick height range between 250 and 1,600 millimetres. Dr Slesenger measured the plaintiff at 185 centimetres, and thought that upper end of the pick height range was going to be at his shoulder level or just above.
127 Dr Slesenger pointed out that the photograph of the job duties indicated that items were packed, not just at the front of the shelves, but also behind, so the plaintiff was going to have to forward reach, straining above shoulder level. In addition, he would be dealing with multiple small items repetitively.[61]
[61]T56
128 Dr Slesenger thought the repetitive nature of the job demands were going to exclude the plaintiff’s ability to perform the tasks because they were going to aggravate his symptoms.[62]
[62]T57
129 Dr Slesenger also advised the plaintiff against returning to work as a despatch clerk. He noted the plaintiff had no experience in this role and did not have the computer skills to perform it.
130 In Dr Slesenger’s experience, workers were often required to go beyond the job description that Recovre provided, and were often required to be involved in other duties.[63]
[63]T51
131 Although the job was stated to be largely computer work, Dr Slesenger thought there would be some manual handling required.[64] While in that job description workers were provided with on-the-job training to master aspects of in-house computer systems, Dr Slesenger was not confident about the plaintiff’s capacity to re-enter this role. The plaintiff had not demonstrated any skills within an office administrative environment, it was coming up to four years after the injury and Dr Slesenger had not seen any evidence of the plaintiff returning into this role.
[64]T52
132 In Dr Slesenger’s experience, given the plaintiff’s past occupational experience and the focused nature thereof, he did not think this would represent suitable alternative employment.[65]
[65]T53
133 Dr Slesenger explained that data entry work in a supported alternative duties environment is a very different situation to entering a new work environment where you are expected to meet the demands of that role and be able to perform as another suitable candidate would have performed.[66]
[66]T54
134 Dr Slesenger did not think the plaintiff demonstrated administrative skills and computer skills to be able to return to work in the role of a despatch clerk. He thought the plaintiff was a very unattractive prospect for a potential employer at the age of fifty, with no administrative experience, no demonstrated skills or qualifications within this area. The plaintiff would not be suitable to work as a despatch clerk, which is a full time, predominantly administrative role.[67]
[67]T54
135 Dr Slesenger thought the further training in the despatch role involving payroll and bookkeeping would be very difficult for the plaintiff unless he had a background and understood systems behind Excel spreadsheets, and how the systems worked to be able to utilise payroll and accounting systems. They were quite complex. That was always his concern about despatch, “because you do not just sit there in isolation. You are working with inventory systems, you are working with accounting systems,” and he did not think the plaintiff had those skills to be able to transition into the despatch role.
136 When it was suggested that Dr Slesenger was effectively saying the plaintiff was a write off, Dr Slesenger responded, unfortunately, that was the conclusion he had come to. Where the plaintiff was at the moment, he did not have a capacity for suitable alternative duties.[68]
[68]T55
137 Dr Slesenger explained the plaintiff had to be taken as a whole. When his age, his work experience, his application experience, his past roles, and his qualifications, even with in-house training, were considered, and you look at what an attractive prospect he is to a potential employer, the plaintiff does not have the capacity to return to work. By this stage in his life, he is an unattractive proposition to a potential employer in an administrative role because of lack of skills, expertise and ongoing impairment and disability.[69]
[69]T57
138 With regard to the left shoulder impairment, Dr Slesenger thought there were opportunities for further treatment, such as pain management, and that with such further treatment, the plaintiff was likely to see some improvement in his pain control. Dr Slesenger noted the outcome of such intervention at this stage was uncertain, and he remained cautious as to the plaintiff’s likely residual capacity with further treatment. However, he was also of the view that the plaintiff had not reached the position of maximum medical improvement.
139 With regard to the right shoulder, Dr Slesenger thought the plaintiff could retain the capacity for work with restrictions. He noted the relatively well preserved range of right shoulder movements, and was optimistic the plaintiff may see some improvement in his overall presentation to be able to return to pre-injury duties.
140 Dr Slesenger agreed that having re-examined the plaintiff earlier this year, hydrotherapy had resulted in some improvement, and right shoulder symptoms which had developed between examinations had improved after the plaintiff stopped gym.[70]
[70]T34
141 When it was suggested by counsel for the defendant that the plaintiff could attend reliably and consistently when he was on light duties, Dr Slesenger explained the plaintiff had a degenerative condition that was likely to deteriorate hereon in. He had recently developed a right shoulder impairment due to the overuse of the that side, and he is not doing any active work. There was also surgery anticipated in the future. Dr Slesenger was also concerned the plaintiff was undertreated and pain management had to be properly considered.[71]
[71]T59
142 Dr Slesenger confirmed, in the long term, the plaintiff was going to have some deterioration. He disagreed he was an advocate for the plaintiff rather than providing a realistic assessment of the plaintiff’s actual work capacity.[72]
[72]T59
143 In re-examination, Dr Slesenger confirmed, with pain management, there may be better pain control, but did not think the plaintiff’s functional limitations were going to change.[73]
[73]T61
144 Dr Slesenger clarified his earlier view about the plaintiff’s difficulties, pains and transitioning from one industry to another. He compared the plaintiff’s situation to an apprentice who became qualified, had a high degree of skill and used that in a different area, like a panel beater who had done an apprenticeship, gone into maintenance, then gone into construction, and then gone on to be a supervisor and trainee assessor. He did not see that in the plaintiff’s case. He saw somebody who had pretty well worked at the same level, had not done an apprenticeship and had the qualifications everybody had. The certificates were in-house and validated the plaintiff’s work experience. They did not take him up to a new level of expertise that he could then use as a training assessor or in another industry.[74]
[74]T62
The Defendant’s medical evidence
145 Having last seen the plaintiff in January 2015, Dr Boys’ views as to the plaintiff’s incapacity are somewhat outdated. In any event, at that time, he considered any work contribution to the plaintiff’s left shoulder condition had ceased, a view not shared by any other practitioner in this case.
146 Mr Gale, who carried out an AMA assessment in February 2017, simply commented that the plaintiff’s work was compromised by his left shoulder condition.
147 On examination in September 2017, orthopaedic surgeon, Mr Carey, focused on the need for shoulder replacement in the future and did not really comment on the plaintiff’s work capacity.
148 Dr Baynes, occupational physician, most recently examined the plaintiff in April 2018. He then confirmed his 2017 view that the plaintiff was fit for various types of light work with restrictions.
149 Dr Baynes considered appropriate restrictions were physical activity with no lifting greater than 5 kilograms and no lifting greater than 2.5 kilograms with the left arm. He thought the plaintiff should not lift above shoulder height and should not undertake any forceful or pushing or repetitive actions across the left shoulder.
150 Dr Baynes believed the plaintiff was fit to work full-time hours per week with an initial return to work of twenty-five hours with a progressive increase to full-time hours with work hardening. He should also have restrictions of no repetitive forceful actions across the right shoulder, particularly above shoulder height.
151 Dr Baynes believed the plaintiff would be fit to work as a light machine operator and light assembly worker. He would also be fit to work in customer service and in trade sales or as a hire controller/rental officer. Further, he would be fit to work as a gatehouse or control room operator and as a storeman restricted to handling light products.
152 Dr Baynes believed the plaintiff was still fit to undertake the roles of order picker and despatch clerk, with picking limits limited to around one kilogram for product and 5 kilogram for boxes to be put onto a conveyor. Work as a despatch clerk undertaking computer-based tasks and filing was appropriate.
Vocational evidence
153 Janette Ash, occupational therapist, from Recovre provided a suitable employment report of 22 November 2017. She had available Dr Baynes’ 2017 report.
154 Ms Ash noted that Dr Baynes suggested that the plaintiff may be suited to employment in the following occupations, namely, machine operation, light assembly, customer service, retail trade or rental officer and storemen, with restricted manual handling capacity.
155 Two work assessments of actual job roles that existed in the open labour market were detailed in this report.
156 The first, as a picker, was with a distribution warehouse located in Somerton. The second, as a despatch clerk, was with a manufacturing business and located at Campbellfield.
157 Wage details of the suggested positions were as follows:
· order picker job, $23.90 per hour
· despatch clerk, $55,000 to $60,000 per annum, based on experience.
· packer, $902 a week
· despatch clerk ranging between $1,089 and $1,050 per week.
Overview
158 It is accepted that the plaintiff suffered an injury to his left shoulder in the incident on the said date.
159 Following left shoulder bicipital rupture, the plaintiff underwent left biceps tenodesis and arthroscopic surgery. Thereafter, he developed left shoulder glenohumeral osteoarthritis, in association with generalised rotator cuff tendinopathy, including severe biceps tendinopathy.[75]
[75]Mr Csongvay
160 All medical practitioners who have recently examined the plaintiff consider that he will ultimately have to undergo left shoulder replacement but that he should put this surgery off as long as possible.
161 The defendant, having conceded serious injury for pain and suffering, accepts the plaintiff has significant ongoing left shoulder pain and restrictions despite surgery in October 2014.
162 I found the plaintiff to be a credible witness and there was no real attack on his reliability. Cross-examination focused on his previous work experience and training, with it being suggested to him that could do a range of jobs that were suggested.
163 There was surveillance undertaken but no film shown. Further, no examiner has suggested that the plaintiff is exaggerating his symptoms, with Mr Carey commenting that the plaintiff was extremely straightforward and indeed stoic in his description of his shoulder problems.
164 I accept the plaintiff is a hardworking, motivated man whose employment capacity has been significantly affected by his accident injury.
165 The consensus of medical opinion is that the plaintiff is no longer fit for heavy, unrestricted manual work, such as his pre-injury role as a machine operator, involving the use of his upper limbs, particularly the left.
166 The issue is whether the plaintiff has the requisite loss of earning capacity of 40 per cent.
167 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).
168 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.
169 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
170 “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.
171 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.
172 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. Barwon Spinners Pty Ltd & Ors v Podolak.[76]
[76](2005) 14 VR 622 at paragraph [70]
173 I am therefore required to determine a “without injury” earnings figure.
174 There was some dispute as to how the “without injury” earnings figure should be calculated.
175 Counsel for the plaintiff submitted the figure should be based on what the plaintiff was earning from personal exertion – his demonstrated capacity in the three years before the incident.[77] On this basis, $109,000 was suggested as being the plaintiff’s gross earnings in the 2011-2012 financial year. His high level of earnings the following year of $104,000 was also relied upon.[78]
[77]T69, Herald & Weekly Times Ltd & Anor v Jessop [2014] VSCA 292 at paragraph [42]
[78]T69
176 Sixty per cent of those figures is $65,400 per annum or $1,257 per week and $62,400 per annum and $1,200 per week.
177 Further, it was submitted that the plaintiff had only recently started work with the defendant, having only been there for three weeks before the injury, and that ultimately he hoped to build up to a similar position to that in which he worked at Olex.
178 Whilst the hourly rate was only $33 at Olex, the plaintiff was able to earn in excess of $100,000 for two consecutive years given the large amount of overtime that was available. Working on a similar basis with the defendant, he could earn approximately $90,000 per annum.
179 Counsel for the defendant submitted that the days of highly paid work at Olex were gone and did not fairly reflect what the plaintiff would have earned but for injury.[79] In these circumstances, an appropriate figure would be more in line with what the plaintiff was earning with the defendant on an hourly rate of about $30.
[79]T65
180 Had the plaintiff not been injured, counsel for the defendant submitted he would have become a leading hand after two years and earned $29.31 per hour. Working a 38-hour week, he would earn $1,114. Sixty per cent thereof is $668 per week. Working full time as a picker ($908 per week) or despatch clerk ($1,057 per week or $55,000 per annum), the plaintiff would earn clearly in excess of that amount.[80]
[80]T67
181 However, counsel for the defendant conceded that if the higher Olex figures were accepted as the “without injury” earnings figure, “that would put the defendant in difficulties”.[81]
[81]T68
182 Clearly, the plaintiff has a demonstrated capacity to earn in excess of $100,000 in two of the three years before the incident. Alternatively, working forty hours a week at $30 an hour plus overtime of some $500, his “without injury” earnings figure could have reached almost that Olex amount after a full year with the defendant. Had the plaintiff worked on this basis for a year as his February payslip indicated, he would have earned $88,400. Sixty per cent thereof is $53,040 or $1,020 per week.
183 In these circumstances, as counsel for the plaintiff submitted, the era of good money was not over and the plaintiff still had the capacity to earn nearly $90,000 per annum with the defendant, working the available overtime as he had done at Olex.[82]
[82]T68
184 In my view, the figure that most fairly reflects the plaintiff’s “without injury” earnings in those circumstances is in the range of $100,000. Sixty per cent thereof is $60,000 or $1,153 per week.
185 A number of jobs were suggested by Dr Baynes. He did not however provide any description of the tasks involved in the various roles. Ms Ash from Recovre also suggested two other jobs as a despatch clerk and a picker/packer. A worksite assessment was conducted of two specific roles and photographs and commentary were provided which described the duties involved.
186 Dr Slesenger, however, thought that whilst the plaintiff had the capacity for employment with various restrictions on his duties, there were no jobs he could realistically perform taking into account these restrictions, his age, work experience and inability to retain.
187 Whilst Dr Slesenger’s report indicated that the plaintiff’s lack of computer skills was the main barrier to him taking up these roles, in cross-examination, he explained there were a number of other relevant factors which led him to conclude the plaintiff effectively did not have a capacity for suitable employment.
188 Dr Slesenger thought the in-house training the plaintiff had undertaken did not provide him with additional skills or indicate an ability to be retrained. These certificates were not of a high level and were more of a ratification of the plaintiffs existing skills, not new skills which increased his employability.
189 Further, whilst the plaintiff was able to attend work consistently and reliably and undertake some data entry whilst working 40 hours per week on light duties, Dr Slesenger explained that was not a situation that would be replicated in a normal employment scenario where the plaintiff competed with fully fit co-workers.
190 Whilst, in my view, Dr Slesenger was not an advocate for the plaintiff, as suggested by counsel for the defendant,[83] I do not accept Dr Slesenger’s view that the plaintiff has no capacity for suitable employment. Clearly, the plaintiff was able to work on light duties until his employment was terminated, and would have continued to do so had his employment continued with the defendant.
[83]T66
191 Dr Baynes, on the other hand, who did not analyse any of the duties involved in the various jobs, thought the plaintiff could start off working twenty-five hours per week and progress to full-time duties when he became work hardened.
192 In my view, a return to full-time duties is somewhat optimistic given the plaintiff’s ongoing pain, the degenerative nature of his condition and the ultimate need for shoulder replacement, as a number of doctors, including his treating surgeon, have indicated.
193 I accept, however, the plaintiff would be capable of working up to about 25 hours per week perhaps on alternate days in very light duties involving minimal manual handling.
194 In my view, the plaintiff would be unable to attend work on a consistent, reliable basis and I accept that he was only able to do so whilst on light duties because tasks he was required to perform were minimal in a protected environment.
195 I accept that the two jobs where worksite assessments were carried out involved a level of manual handling for which the plaintiff is unsuitable, both by virtue of his left shoulder problem and, in more recent times, his right shoulder condition.
196 The order picker role is unsuitable for the plaintiff as it involves bilateral reaching and repetitive work.[84] In addition to the manual duties necessarily involved in despatch, in my view, the plaintiff also would have difficulty completing the full-time six-month course required to take up this position.[85]
[84]T71
[85]T72
197 The plaintiff is now aged fifty. He has never undertaken an administrative or clerical job, nor has he worked with contact with the public. As Dr Slesenger explained, the plaintiff would have difficulty transitioning into new industries which require retraining in completely new skills, as distinct from building on experience and skills already acquired.[86]
[86]T72
198 At this stage of his life, with his limited work skills and his bilateral upper limb restrictions, I do not accept the plaintiff would have the capacity to perform work in the other suggested roles on other than a part-time basis.
199 I am satisfied, in all the circumstances therefore, that the plaintiff has suffered the requisite loss and is unable to earn in excess of $1,153 for the foreseeable future.
200 No medical practitioner considered there was any change or significant improvement on the plaintiff’s left shoulder condition, with the consensus being he will ultimately come to replacement surgery.
201 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
202 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
203 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity, pain and suffering having been conceded.
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