Barnes v Country Care Pty Ltd

[2011] VCC 1101

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT SHEPPARTON
CIVIL DIVISION

DAMAGES AND COMPENSATION LIST

Case No. CI-10-02044

LEESA MEREE BARNES	Plaintiff
v
COUNTRY CARE PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE ANDERSON
WHERE HELD:	Wangaratta
DATE OF HEARING:	6 June 2011
DATE OF JUDGMENT:	10 June 2011
CASE MAY BE CITED AS:	Barnes v Country Care Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VCC 1101

REASONS FOR JUDGMENT

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Catchwords:  ACCIDENT COMPENSATION – Serious injury application – “Suitable
employment” – Plaintiff’s ability to perform tasks of employment
positions – s.134AB Accident Compensation Act 1985.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. McCredie	Faram Ritchie Davies
For the Defendant	Mr R.H. Stanley	Thomsons Lawyers
HIS HONOUR:

1           Leesa Barnes was working as an attendant carer on 28 July 2005. As part of her duties that day, Ms Barnes was required to transport a client to Melbourne for a medical appointment. Whilst manoeuvring the client in a wheelchair, Ms Barnes injured her right shoulder.

2           Ms Barnes was referred by her general practitioner to an orthopaedic surgeon, Mr Ian Critchley, in Shepparton. Mr Critchley has treated Ms Barnes since that time. The treatment has included two operations and other invasive procedures. In June 2007, Ms Barnes attended a three week intensive pain management program at the Wodonga Hospital. During the program, Ms Barnes injured her left knee and Mr Critchley subsequently performed two operations on her knee.

3           Ms Barnes still suffers pain in her right shoulder and has restricted movements. She has not worked since the accident in July 2005. She seeks leave to bring a proceeding for damages, both in respect of loss of earning capacity and pain and suffering. There is no issue that Ms Barnes suffered an injury to her right shoulder whilst carrying out her work duties, that she had no history of any pre-existing condition in her right shoulder and that the injury prevents her pursuing her pre-injury duties or similar work.

4           The issues for determination in the proceeding are:

a.	the nature and extent of her right shoulder injury;
b.	whether Ms Barnes satisfies the statutory test in respect of loss of earning capacity by reason of any ability to engage in “suitable employment”;
c.	alternatively, whether she satisfies the narrative test in respect of pain and suffering.

The right shoulder injury

5           Mr Critchley first saw Ms Barnes in August 2005. He noted that she had pain “all

over the shoulder which has failed to respond to non-steroidal anti-inflammatory

agents and Panadeine Forte”anaesthetic and steroid” which provided relief for only a few hours”. On 18 October 2005, Mr Critchley performed an arthroscopic right-sided subacromial decompression. Mr Critchley noted that following the operation Ms Barnes was “having very severe pain”. She made some progress over the following months. On 23 February 2006, Ms Barnes “had an ultrasound guided AC joint injection which made no difference”. On 4 April 2006, Mr Critchley performed an excision arthroplasty of the right AC joint. Ms Barnes’s pain continued and Mr Critchley wondered whether she had “developed a reflex sympathetic dystrophy”.

. No abnormality was revealed on x-ray examination.

6

In August 2006, Mr Critchley arranged for an anaesthetist to perform Stellate Ms Barnes’s right shoulder with local anaesthetic and steroid which gave “no help”. Mr Critchley thought that Ms Barnes had “a chronic pain syndrome” and referred her to a pain management clinic. In November 2006, an ultrasound guided subacromial bursa injection “made absolutely no difference” to Ms Barnes’s condition.

7 “essentially unchanged”

During early 2007, Ms Barnes remained . Between 4 and Hospital. Ms Barnes was reported as being “a motivated and positive member of the group who participated in all sessions”. During the program Ms Barnes “developed active pain coping techniques” and ceased using Panadeine Forte. Ms Barnes had a positive response to the program.

8           Unfortunately, whilst participating in the program, Ms Barnes’s left knee “gave way”. On 6 December 2007, Mr Critchley performed an arthroscopy and debridement of the left knee. In February 2008, Mr Critchley noted that, “Ms B. continues to have pain in

her right shoulder and her left knee and is still being followed up by the Wodonga

Pain Clinic”. On 14 April 2009, Mr Critchley performed a “left medial compartment knee replacement”. On 6 July 2009, Mr Critchley noted that Ms Barnes’s shoulder

9           On 21 March 2011, Ms Barnes again saw Mr Critchley about her “right shoulder problem”. Mr Critchley noted that “she has a positive impingement sign. She is

unable to achieve full elevation through abduction but has to do it through flexion. She is diffusely tender around the shoulder. She seems to have an impingement-

type syndrome”. Mr Critchley arranged x-rays which were “normal”. There did not
“appear to be a rotator cuff tear, but there may be some impingement”. In early April
2011, Mr Critchley gave Ms Barnes a subacromial injection which “significantly
increased her pain” and did not settle.

10         Upon examination, Mr Critchley said, “There is little specific to find apart from considerable pain on moving her shoulder”. Mr Critchley said he was “running out of options” but thought it may be worthwhile injecting the defect created by her AC joint resection. On 23 May 2011, “in desperation”, Mr Critchley arranged to have Ms Barnes’s AC joint injected as “this is where her symptoms seemed to have localised at the moment”. This was performed on 30 May with only a few hours of pain relief.

11         Although Ms Barnes will continue to see Mr Critchley, it seems that further treatment options are limited and would not include surgical intervention. Ms Barnes said that her level of pain fluctuates depending upon her level of activity. If she has been

using her shoulder she may suffer severe pain and will take Panadeine Forte. This happens about twice a week. Generally, she restricts her activities and can control the pain with Panadol. Ms Barnes averages six Panadol each day, although perhaps

three times a week when she does not do anything, she takes no medication.

Medico-legal examinations

12         Mr John O’Brien, an orthopaedic surgeon, examined Ms Barnes at the request of her solicitors for medico-legal purposes on 3 August 2010. He noted that her “clinical

signs certainly demonstrate persistent restriction of movement of the right shoulder
suggesting some ongoing active pathology in the acromioclavicular joint and what
also appears to be evidence of some mild capsulitis of the right shoulder … The
patient certainly continues to experience active right shoulder pathology controlled by
analgesic medication which is basically the only ongoing form of pain management
… The prognosis in relation to this patient’s right shoulder pathology I would suggest
is poor as I have little doubt there is now well established chronic pain and restriction

of movement which will now not improve”.

13         Mr O’Brien said that “this patient now presents with a significant disability in

association with restricted function of her right dominant shoulder. The patient domestic and recreational activities due to her shoulder pain and limited function, and
certainly is incapable of a return to her pre-injury occupation and indeed would be
incapable of undertaking any employment involving manual and indeed physical
duties. In fact, given the restricted movement of the right shoulder, I would suggest
from a physical perspective the patient would not be capable of even undertaking
modified duties if it did require repetitive use of the arm, even extremely light lifting or
any function at or above shoulder level. Thus, if the patient was to engage in any
employment it would have to be extremely limited in its functional component. Under
the circumstances, I think from a practical perspective this patient’s shoulder
pathology has basically resulted in the patient being considered as totally
incapacitated and I would suggest this is highly likely to be a permanent situation.

this is a permanent situation”.

14         Mr Steven Leitl, an orthopaedic surgeon, examined Ms Barnes as the request of the workers’ compensation insurer and the defendant’s solicitors for medico-legal purposes on 31 July 2006, 21 August 2007 and in December 2010. Mr Leitl’s most recent diagnosis was “mild, persisting, dysfunction of the right shoulder due to rotator cuff tendonitis”. Mr Leitl noted that Ms Barnes had “no capacity for pre-injury employment”, but that she did have “a capacity for suitable employment that avoids repetitive use of her right upper limit [sic] and avoids overhead work”. He noted that

“If a suitable position is found for her, that a graduated return-to-work program would
be appropriate”.

15         Dr Nathan Serry, a consultant psychiatrist, carried out a psychiatric assessment at the request of the workers’ compensation insurer on 25 July 2007. Dr Serry diagnosed Ms Barnes as having “a chronic adjustment disorder with anxiety and depression”. Dr Serry considered that Ms Barnes did not “have an incapacity for employment due to a work-related mental disorder”. He said that, “Any incapacity for

employment relates to the physical injury … and the prognosis effectively reflects that
of the underlying physical condition”.

Capacity for suitable employment

16         Ms Barnes has lived at Barmah with her partner since shortly after her injury. Barmah is about a 30 minute drive from Echuca and about 45 to 50 minutes from Shepparton and Nathalia. The recent amendments to the definition of “suitable employment” is s.5 of the Accident Compensation Act require the court, in relation to suitable employment, to disregard whether “the work or the employment is available” and “the work or the employment is of a type or nature that is generally available in the employment market”.

17         The defendant arranged for a vocational assessment report to be carried out on 20 July 2007 by the Commonwealth Rehabilitation Service and an employment capacity analysis by Healthe.work on 15 September 2010. The CRS assessment identified a range of positions, including as a pathology collector, call centre worker and hotel/motel reception, appropriate for Ms Barnes. Mr Leitl in his re-examination of Ms Barnes in August 2007, and in a series of reports in August and October 2007, discussed Ms Barnes’s suitability for a number of employment positions.

18         In his report dated 1 October 2007, Mr Leitl considered that employment options as a call centre worker, pathology courier and hotel/motel reception would be “suitable” for Ms Barnes, as “these would be within her physical capabilities because they would

involve minimal and [sic] repetitive use of the right upper limbs”.

19         Mr Leitl said he believed that the “positions of sales assistant (postal) and the data

entry operator would be unsuitable as these would require the repetitive use of her

right (dominant) upper limb which would exacerbate the right shoulder condition”. Mr Leitl had earlier rejected suggestions of positions for Ms Barnes as a retail assistant, food and drink, and console operator, as unsuitable. He said that the first role “would

be difficult to carry out one-handed and would be difficult not to move her right

shoulder which would therefore exacerbate her shoulder pain”. In relation to the
second suggestion, it would not be suitable for Ms Barnes “as it would require the

use of her dominant right upper limb”.

20         Mr Leitl thought Ms Barnes “would be capable of undertaking work as a call centre worker particularly as I note that hands-free operations are undertaken”. Mr Leitl noted that Ms Barnes had “expressed an interest” in employment as a pathology courier, noting that “she is able to drive for over an hour and a half on her own

admission and I believe that this [is] a low, physical demand job with which she would have a physical capacity to cope”.
Findings
21	of Ms Barnes. The Defendant’s Court Book index notes that the defendant had available to it, “video surveillance of the plaintiff”. No surveillance evidence was introduced upon the application. The positive approach of Ms Barnes to the intensive

Defendant’s counsel, Mr Stanley, conceded that no attack was made upon the credit Ms Barnes contemplated purchasing the general store at Barmah. She spent a day in the store attempting to do the tasks that were required of a person working there. She said that she found the work a lot harder than she anticipated because of the lifting required and the fact that she always needed to be “on the go”. Ms Barnes was not able to work in the store beyond the one day.

22         I am satisfied that Ms Barnes does not have a current work capacity in suitable employment and that she is able to satisfy the statutory test for loss of earning capacity. It was recognised that Ms Barnes’s pre-injury employment or any similar

manual work would be beyond her. A very limited range of jobs were suggested as
suitable for her. Mr Leitl rejected a number of the positions listed in the vocational
assessment. Mr Leitl is an orthopaedic surgeon. With his expertise and experience,
he can comment upon the types of tasks that Ms Barnes would have the capacity to
perform. It is important, however, to carefully consider the basis for Mr Leitl’s
opinions and his understanding of the requirements of the positions suggested as
suitable.

23         In the vocational assessment, the tasks of a call centre worker are listed as “typing” and “speaking to customers via a headset to answer enquiries”. Mr Leitl considers this employment would be suitable for Ms Barnes, “particularly as I note that hands- free operations are undertaken”. On the other hand, Mr Leitl considered that the

position of a data entry operator would be unsuitable because, it “would require the

repetitive use of her right (dominant) upper limb which would exacerbate the right

shoulder condition”. In her evidence, Ms Barnes said that although she operates a
computer at home to “create emails and go on Facebook”, she “cannot type very
well” and can “only do it with her left hand” and “only for one hour at a time”. She did
not think that she could perform this work for four hours a day, as “typing” is an
essential feature of the work of a call centre worker. It is unlikely that Ms Barnes
would, in the foreseeable future, have the capacity to perform that employment.

24         The duties of a pathology collector are said to be “some driving” and “walking to pick up pathology specimens”. Ms Barnes told Mr Leitl in August 2007 that she was only able to drive for “up to an hour and a half” and held the steering wheel low down to

protect her right shoulder. In her evidence, Ms Barnes repeated that she has
“problems if I drive for long periods” and, on one of her “bad days”, she probably
would not drive. She said that if she drives for longer than two hours at a time, she
“ends up with a lot of pain”.

25         The information in the vocational assessment about the employment position seems to be related to a general courier rather than the specific position of a pathology collector. The section of the report under the heading “industries with jobs” refers to “communication services, mainly Australia Post” as the largest industry employment sector and “health and community services” as having only seven per cent of the jobs. Other information contained in the analysis appears to confirm that the general position of a courier is being described.

26         Further, the actual tasks of a pathology collector are not described in detail; for example, the size of packs of samples collected and delivered and the physical operations necessary to pack them and remove them from the delivery van. It is

unclear whether the tasks of the position would involve inappropriate lifting, repetitive
movements or Ms Barnes raising her arms above shoulder height.

27         Ms Barnes lives at Barmah. To be employed as a pathology courier she would need to drive to work, at least to Echuca. This would involve one hour’s driving each day. It is unlikely, therefore, that she would have the capacity for the extended periods of driving that would be required of a courier. I consider that apart from driving to and from work, Ms Barnes would, at most, be able to carry out deliveries for three hours a

day, that is two periods of one and a half hours.

28         Assuming Ms Barnes were able to work, three hours a day, five days a week, at the suggested pay rate of $801 per 38 hour week, her likely remuneration would be $801 x (15/38 hours) = $316.18 or $16,442 gross per annum. Ms Barnes earned $30,114 gross in the year to 30 June 2005. Defendant’s counsel conceded that this sum represented Ms Barnes’s pre-injury earning capacity. Sixty per cent of $30,114 is $18,068. Accordingly, even assuming the most hopeful scenario, Ms Barnes’s earning capacity in the foreseeable future from employment as a pathology collector would be less than 60 per cent of her pre-injury capacity.

29 simply involve limited administrative tasks, such as taking reservations which

Mr Leitl appears to have assumed that the job of a hotel/motel receptionist would was not confident that she could manage the position if it involved continued use of her arm. Mr Leitl considered that the duties of a receptionist “would involve minimal and [sic] repetitive use of the right upper limbs”. However, Mr Leitl rejected the positions of retail assistant – food and drink, and console operator, as unsuitable because they would involve Ms Barnes using “her dominant right upper limb” and may involve her right shoulder “which would therefore exacerbate her shoulder pain”.

30         The vocational assessment lists the duty of the position of hotel/motel receptionist as

“greets clients and visitors and responds to personal telephone or written enquiries

and requests” and the “demands” of the position as being a “sedentary, seated and
standing role” requiring “use of upper limbs to use telephones and operate computer
re: bookings etc.” Applying the same logic as Mr Leitl used with other employment
positions, the latter task would be inappropriate for Ms Barnes and would be likely to
exacerbate her shoulder pain.

31         In the circumstances, I consider that Mr O’Brien’s conclusion that “from a practical

perspective this patient’s shoulder pathology has basically resulted in the patient
being considered as totally incapacitated and I would suggest this is highly likely to

be a permanent situation”, should be preferred to the opinions of Mr Leitl.

Pain and suffering

32

If I am correct in concluding that Ms Barnes satisfies the statutory test for establishing injury”. I note, however, that Ms Barnes has a long history of committed employment and return to work after workplace injury. Her education is limited and her experience has generally been with unskilled manual work. As a result of her injury, Ms Barnes’s pre-injury employment is not open to her and, even on the evidence of Mr Leitl, she would have a very restricted range of employment opportunities.

33         Ms Barnes was injured about six years ago. She has had two operations on her right shoulder and other invasive procedures including a ganglion block and a number of steroid injections. She participated positively in an intensive pain clinic and yet has continued to suffer regular debilitating pain which has affected her ability to enjoy a normal range of day-to-day activities. This disability arises in large part from her shoulder problems without taking account of any additional disability which results from the injury to her left knee.

34         In the range of impairments to body functions, Ms Barnes’s right shoulder injury and the consequences to her might in the circumstances be fairly described as “very considerable” and therefore satisfies the narrative test for “serious injury” entitling her to leave to bring common law proceedings for damages.

Order
35	Ms Barnes will have leave to bring a proceeding for damages for loss of earning capacity and for pain and suffering arising from the workplace accident on 28 July 2005.

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Certificate

I certify that these 10 pages are a true copy of the reasons for decision of His Honour Judge

Anderson delivered on 10 June 2011.

Dated: 10 June 2011

Caroline Dawes

Associate to His Honour Judge Anderson