Barrow v Regal Cream Products Pty Ltd

[2019] VCC 207

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-17-06039

KERRIE JEAN BARROW	Plaintiff
v
REGAL CREAM PRODUCTS PTY LTD	Defendant

---

JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Warrnambool
DATE OF HEARING:	19 February 2019
DATE OF JUDGMENT:	5 March 2019
CASE MAY BE CITED AS:	Barrow v Regal Cream Products Pty Ltd
MEDIUM NEUTRAL CITATION:	[2019] VCC 207

REASONS FOR JUDGMENT
---

Subject:ACCIDENT COMPENSATION

Catchwords:          Serious injury application – impairment of the left shoulder – pain and suffering – loss of earning capacity

Legislation Cited:   Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)

Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Peak Engineering v McKenzie [2014] VSCA 67; Acir v Frosster Pty Ltd [2009] VSC 454, Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Giankos v SPC Ardmona Operations Pty Ltd [2011] VSCA 2011, Richter v Driscoll [2016] VSCA 142

Judgment:Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Brett QC with Mr G Pierorazio	Stringer Clark
For the Defendant	Mr A Clements QC with Ms K Manning	Thomson Geer

HER HONOUR:

Preliminary

1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an injury by the plaintiff suffered during the course of her employment with the defendant up to and including 16 September 2014 (“the said date”).

2       There was a specific incident on the said date where the plaintiff was lifting a rubbish bin lid.  In the course of her employment, she was removing icy poles that were jammed in the machine due to malfunctioning.[1]

[1]Transcript (“T”) 1

3The body function said to be impaired is the left shoulder.

4The plaintiff bears an overall burden of proof upon the balance of probabilities.

5By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:

“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”

6I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

7Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

8       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.

9       Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.

10      Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.

11I 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

12The plaintiff swore two affidavits and was cross-examined.  Further, she relied on an affidavit sworn by her daughter Jemma on 15 February 2019. Also in evidence were medical reports and other material.  I have read all the tendered material.

The Plaintiff’s evidence

13The plaintiff is aged fifty-seven, having been born in May 1961 in Colac. She left Colac Technical School at about Year 9, aged fifteen. 

14The plaintiff then worked at Foley’s Bakery and Jelly’s Café. When she was eighteen, she was put off work and moved to Geelong where she was employed as a kitchen-hand in a wedding reception facility for six or seven years. 

15      The plaintiff then returned to Birregurra with her first child. After her other two children were born, she obtained part-time employment in a hotel kitchen and worked at the Cumberland Resort in Lorne as a housekeeper/cleaner for about one to two years.  She then separated from her husband and obtained employment at Fonterra on a part-time basis for twelve months. 

16      The plaintiff commenced work for the defendant (“Bulla”) in 2007.

Lifestyle prior to work injury

17      Before suffering injury to her left shoulder, the plaintiff enjoyed an active and healthy life.  She was living in Colac with her daughter, now aged twenty-six. 

18      The plaintiff was very active, performing many of the domestic duties, including sweeping, mopping, washing and hanging out washing, vacuuming and cooking.  Outside was an area of garden.  She had no restrictions performing all of the gardening duties including mowing, digging, planting, pruning and weeding.  A very physical activity which she enjoyed was wood gathering.  She and her son regularly went in to the bush with a chainsaw and gathered wood which she then split at home.  These activities kept her very fit.

19      Prior to her work injury, the plaintiff had always been a very outdoors person.  She enjoyed fishing at a particular spot on the Gellibrand River in the Otway Ranges and from time to time, she travelled to the Murray River to enjoy fishing with her partner. 

20      On many weekends in winter, the plaintiff went to the football and watched her son play in the local league.

Work injury with the Defendant

21      The plaintiff suffered injury at work as a result of a long-term malfunctioning of the manufacturing process of icy poles.  The problem was the robot arms of the machine were not picking the product up correctly and the icy poles remained stuck in the moulds. 

22      Prior to 2014, there was an occasional icy pole stuck, but over a four to five-month period prior to September 2014, the problem became chronic.  When the icy pole was not automatically lifted up by the machine, the plaintiff was required to manually reach in and remove the product from the mould.  This involved going up two steps and reaching across at full extension to lift the product out.

23      The work of repetitively pulling out the product put extreme pressure on the plaintiff’s hands, arms and upper limbs.  At no stage did the defendant cease production to fix the malfunction properly, although aware of the problem with the machine.

Injury

24      About three months before the said date, the plaintiff started to experience left shoulder pain.  She advised Cameron Woods, the occupational health and safety officer, and was sent to Rahni Buchanan, chiropractor from whom she received treatment including acupuncture.  Bulla paid for the treatment. 

25      After the first bout of treatment, the plaintiff went back to normal duties until the said date, after which she got some more treatment.[4] 

[4]T6

26      Throughout that time, the plaintiff reported regularly to Cameron Woods that “[she] was not right”.  She needed help from colleagues.  She also informed her bosses, including Tegan.

27      On the said date, whilst still suffering pain in her left shoulder, the plaintiff lifted the lid of a large industrial bin in order to empty the contents of a wheelie bin in to the industrial bin.  The action of lifting the industrial bin lid caused her to experience an increase in pain in her left shoulder (“the incident”).  She reported the incident which occurred toward the end of her shift.  She went home and applied ice packs to her shoulder.

28      The following day at work, the plaintiff reported the incident and was advised to return to the chiropractor.  She recommenced treatment with Rahni Buchanan on a regular basis from then on.  Whilst Rahni Buchanan noted a complaint of right shoulder problems in September 2014, the plaintiff’s ongoing complaints were always of left shoulder problems.[5]

[5]T7

29      As her left shoulder pain persisted, the plaintiff attended Dr Ahmed at the Otway Medical Clinic on 23 October 2014.  He prescribed medication and provided a WorkCover certificate. 

30      The plaintiff lodged a Claim for Compensation on 22 October 2014.  She did not complete the form herself.[6] 

[6]T8

31      At work, in the period prior to lodging a claim, the plaintiff was put on light duties which included filling in jobs such as putting up rosters or basically standing, talking and watching. 

32      The plaintiff’s general practitioner sent her for a left shoulder ultrasound which took place on 24 October 2014.  When she returned to the clinic after the scan, she was told it had shown damage in her shoulder and her certificates were continued. 

33      On 18 November 2014, the plaintiff had the first doctor-guided cortisone injection in her shoulder. She initially received some benefit from the injection, but that gradually wore off.

34      The defendant’s WorkCover officer insisted on attending the plaintiff’s consultations with her general practitioner, Dr Cavill, after she continued to be provided with certificates. 

35      The plaintiff was prescribed Mobic and Panamax for the pain. By the end of 2014, her general practitioner was discussing with her the need for advice from a surgeon.  In January 2015, she was referred to the Corio Bay Sports Medicine Clinic and she began treatment on 22 January 2015 with physiotherapist, Manas Moholkar.  This treatment continued every few days.  In addition, the plaintiff was given exercises to perform at home.  She continued to have physiotherapy throughout the first half of 2015. 

36      The plaintiff could recall getting to the stage where she was discharged by Mana Moholkar to go back to pre‑injury duties on the basis of a return to work program.  She agreed she was discharged fit for pre‑injury duties on 4 June 2015.

37      The plaintiff disagreed that over the first six months of 2015 she slowly improved with physiotherapy to the point where she was fit for her old job.  She agreed Manas had certified her as such but she told him she was not.  Cameron Woods was at the physio visit and said in front of Manas, they would work her through work; however, that afternoon, the plaintiff was called into the office at work and told her contract was not going to be renewed.[7]  She then worked out a week of notice.[8]

[7]T2

[8]T13

38      The plaintiff had returned to work on restricted duties.  During that time, she continued to inform her return to work officer, Cameron Woods, that her left shoulder was still not right.  She had ongoing pain and restrictions. She was having difficulty reaching behind her back to do up her bra.

39      After the said date, on light duties, the plaintiff attended work every day. She was not doing much at all.  She was just taking around the rosters.  She did not operate the machine or lift anything heavy.[9] She never went back to her old sort of job.  She did lighter tasks with no lifting.[10]

[9]T9

[10]T9

40      Before her injury, the plaintiff had worked every year on an annual contract with the defendant involving a full year’s work save for a few weeks when it was off season.  Every year in about June she would be told whether she was going to be offered a contract or not.[11]  She agreed the reason she stopped working for the defendant was it did not renew her contract.[12]

[11]T13

[12]T14

41      After the plaintiff was put off work by the defendant, the defendant was advertising in the local media for workers.  She again applied for a job, but the defendant would not employ her, she believed, due to her ongoing work injury.  She kept looking for work, as she had no alternative. 

42      The plaintiff eventually obtained work through Better Facility Services cleaning for four to six hours per week at Trinity College in Colac.  She continued in receipt of Centrelink benefits. As part of her job application she disclosed her ongoing shoulder injury and advised there were tasks where she would be restricted including using back pack vacuum cleaners.  She lasted in the job for six to eight weeks, maybe to November, but found it too difficult with her pre-existing shoulder injury.[13]

[13]T14

43      The plaintiff denied this cleaning work caused the deterioration of her left shoulder pain.  She could never put a backpack on.  She denied she stopped this job because her shoulder was hurting a lot more after the cleaning than before.  She just put up with it because she needed the money but then she could do so because her left shoulder was getting worse.  This could have been because of the cleaning job.  She did not know.  This was her last job.[14]

[14]T15

44      The plaintiff returned to her general practitioner and was sent to the Orthopaedic Outpatients Department at Geelong Hospital in October 2015.  An MRI scan was performed on 14 November 2015.  The plaintiff’s medical expenses were not covered by WorkCover as she was told she had recovered from her work injury, although at no stage had she made a recovery from the initial injury or had she ceased experiencing symptoms. 

45      On 16 November 2015, the plaintiff saw Mr Adam Watson, orthopaedic specialist, at Geelong Hospital.  He recommended she undergo surgery which was performed on 29 January 2016 (“the surgery”). Thereafter, she commenced physiotherapy at Geelong Hospital and then at Colac Area Health with Andrew Rank and Katelan Walklate.  That treatment continued until July 2016.

46      The plaintiff agreed as a result of the surgery she had improvement in her left shoulder symptoms.  She thought she had a better range of movement in her shoulder.[15]

[15]T16

47      The plaintiff denied, as Dr Horsley reported in December 2018, that for quite a while after the surgery she had no pain in her shoulder, and started getting discomfort again in 2018.  She told Dr Horsley she was getting more pain.  She has always had pain.[16]

[16]T29

48      As at March 2017,[17] the plaintiff continued to experience pain at the top of her left shoulder and on the left side of her neck. The pain radiated into her left bicep and down to her left hand where she also experienced pins and needles and numbness.  The surgery had given her a little more movement and she could now manage to do up her bra.  Nevertheless, her left arm movement was severely restricted and she used a long handled brush to wash her back.  She tried to work around her restrictions and manipulated a towel to dry herself.

[17]First affidavit

49      At home, the plaintiff struggled with many activities including cleaning cupboards.  Her daughter helped by performing much of the household work including vacuuming and cooking. 

50      The plaintiff continued to perform home exercises daily. At night, her left shoulder pain caused her great difficulty. She woke with pain and struggled to get in a comfortable position.

51      The plaintiff’s injury had had a huge impact upon her life.  The recreational activities she once loved were no longer possible for her to undertake without pain.  She had avoided fishing since her injury.  She continually hoped she could return to that activity which gave her so much pleasure. 

52      The plaintiff avoided driving a manual car as using her left arm to change gears caused the pain to worsen.  At home, she had difficulty lifting her eight-month old granddaughter, Eloise.  As the baby’s parents worked, the plaintiff had always looked after her up to three times per week.  It upset the plaintiff greatly that she could not be the active grandmother she would like to be.

53      The plaintiff would look after Eloise on her own for a few hours, a few days a week.[18]  Sometimes her other daughter would also be there and she would not be looking after the child alone.[19]

[18]T23

[19]T24

54          The plaintiff was then worried about the future.  Throughout her life, she had been proud of the fact that she could work hard and earn a good living.  Work gave her a great sense of pride and achievement.  After being injured in her employment, she had been unable to return to performing manual work which was all that she had ever known.  Her injury had also taken from her the enjoyment she once had from her many outdoor recreational interests and her ability to look after her home.

55      As at 1 February 2019,[20] the plaintiff’s left shoulder injury has not improved. She continues to suffer from ongoing pain at the top of her left shoulder in addition to pins and needles in her left hand.  She suffers from ongoing loss of strength in the left arm.

[20]Second affidavit

56      About six or seven months ago, the plaintiff started suffering from some tingling in her middle ring and index fingers of her left hand.  This continues, sometimes three times a week, and if it happens at night, it wakes her up.[21]

[21]T26

57      The plaintiff has also suffered a loss of grip in her left hand, which came on a bit before the pins and needles some time last year. That impacts on her ability to lift.  She does not carry heavy shopping bags.  She would not be able to because of her left hand problems.  She does not really have pain in that hand.  No doctor has suggested she has carpal tunnel, and she has not had any tests for that condition.[22]

[22]T27

58      Currently, the plaintiff is relying on an anti-inflammatory, Meloxicam, to help deal with her pain although she finds that it can aggravate her hiatus hernia and therefore she only takes it when she really has to.  Otherwise, she applies iced gel on her left shoulder to try and get some symptom relief. She also does exercises at home pushing her hands up against a wall and also using a rubber band.

59      The plaintiff is prescribed Meloxicam which she takes on average once a week if she needs it.[23]  She denied she took it because her back is playing up.  She takes it for shoulder pain.  She does not take it more frequently because she does not like taking it, but takes it because Panadol does not work.[24]

[23]T27

[24]T28

60      The plaintiff can take Panadol up to three times a day, nearly every day.  If her back pain is playing up she takes Panadol or she rubs gel on her back.[25]

[25]T29

61      The plaintiff agreed the reason she did not take Meloxicam daily was because the pain was not significant or she ended up doing nothing.  On the other days she just puts up with the pain.  She agreed on those days she might have some annoying or minor pain.[26]

[26]T29

62      The plaintiff cannot afford to see a physiotherapist although she recently saw an osteopath which cost her $67.  The osteopath recommended further treatment which the plaintiff will discuss with her general practitioner, Dr Pojani.

63      Dr Pojani continued to certify the plaintiff fit for restricted duties only up until her weekly payments were terminated following a period of 130 weeks effective 24 July 2018.  The plaintiff will be seeking to challenge that decision on the basis she does not believe she is suited to any work because of her left shoulder injury.

64      Once her weekly payments stopped, the plaintiff had to go onto Newstart. She currently receives $565 a fortnight, a significant drop from her pre-injury wage of approximately $1,000 per week.  Accordingly, she finds it difficult to make ends meet and currently owes about $40,000 on her home mortgage.

65      The plaintiff has taken steps to try and get work even though she does not believe she is fit for work.  She obtained a Certificate in the Responsible Service of Alcohol (“the RSA course”) .  She also attempted to obtain a Gaming Licence.  Whilst she completed the theory, she was not able to do the hands-on component of the course and did not complete it.[27]

[27]T23

66      In any event, the plaintiff applied to the Colac Bowling Club and managed to get an interview.  She was told that she was going to get a trial, however, she was subsequently contacted by the Club and told that she was not suitable.  She has applied to other pubs and bowling clubs in the Colac area without any luck.  She also applied for a part-time position at the new Coles Supermarket in Colac, again without any success.

67      Even if the plaintiff was successful in obtaining employment, she did not know how she would be able to cope on a consistent, reliable basis because of her left shoulder pain and restrictions.

68      The plaintiff is only fifty-seven years of age.  She always enjoyed working.  But for her injury, she would have continued to work until the normal retirement age.  The defendant had other workers roughly that age when the plaintiff was working there.

69      In terminating the plaintiff’s weekly payments, the defendant relied on a number of positions, including work as a gas meter reader.  That position requires a “good level of fitness” and an ability to “walk approximately six hours each day”, something which the plaintiff would simply not be able to do because of her deconditioning.

70      The plaintiff was cross examined at some length as to her post injury courses, her subsequent job applications and her suitability for those and other positions. She was also asked about her computer competency.

71      The plaintiff has a laptop at home and owns a mobile phone.[28] She knows how to use her Samsung phone to a certain extent.  She knows how to google on her phone and receive emails, and she has got an email address.  She has never replied to an email on the phone.  Her daughter has shown her how to do so, but she cannot remember, and she does not get emails that often.  She knows how to send text messages from her phone.  Everything she knows, her daughter has taught her.[29]

[28]T32

[29]T33

72      The plaintiff has had her laptop for probably five years.  She uses the internet only to do things like look up the phone number of a caravan park where she might want to stay.[30]

[30]T33

73      The plaintiff does not bank online.  The bank showed her how to do so, but she does not actually use it without help.  She does not like computers, and she prefers paying bills the old-fashioned way.[31]

[31]T34

74      The plaintiff is on Facebook and was shown by her daughter how to use it.[32] Her daughter usually uses eBay, and the plaintiff rarely does.[33]  The plaintiff cannot keep up with her daughter on the computer.[34]

[32]T34

[33]T34

[34]T35

75      Post injury, the plaintiff completed a basic food safety practices course through Centrelink in Colac.  She was taught matters of hygiene in food services. The course went for probably half a day, after which she was given a food handling certificate.[35]

[35]T17

76      The course was Centrelink’s idea to try get the plaintiff certificates to get her back into the workforce.  It was not suggested because of her earlier experience working in a bakery and a café. She liked cooking. She was hoping to find a job using that certificate; anywhere like pubs, restaurants or cafés.[36] She applied for jobs in these sort of roles in pubs.[37]

[36]T17

[37]T18

77      The plaintiff applied for work and attended at Baker’s Delight in Colac after this course.  She did not know if she would be physically capable of doing the job but she applied because she was trying whatever she could.  She would not have problems just standing at the counter all the time at a bakery or in a café.[38]

[38]T18

78      The plaintiff applied for job at The Lemon Tree Café in the Safeway Colac complex.  She put in a resume and just asked if there were any jobs available. She was told there were none. She denied she applied because she felt confident she could work in a café environment with her left shoulder.  She applied because she was required to look for work by Centrelink.[39]

[39]T19

79      The RSA course went for a day and did not involve any computer use.  After obtaining that certificate, the plaintiff applied for the bar job at the Colac Bowls Club.  She was told she would not be suitable.[40] 

[40]T20

80      If the Colac Bowling Club rang her tomorrow and offered her a job starting behind the bar, the plaintiff would not say yes, because there would be lifting involved. When offered the trial she was pleased, but she was very apprehensive.  She did not think to herself she would not be able to do it because of her left shoulder.[41]

[41]T36

81      The plaintiff went to other pubs and clubs, put in her resume, and just asked if there were any jobs. She was not confident that she would be capable of serving behind a bar because she had never worked behind one.  She did not know what would stop her serving at a bar.  She did not know all of what the job would entail.[42] 

[42]T20

82      The plaintiff then agreed she could not say she could not do this type of work because she had never tried.  She agreed she thought she could do it and that is why she applied for jobs at multiple facilities.  She denied the only reason she is not working behind a bar is that she has not been offered a job and that it has got nothing to do with any incapacity from her injury.[43]

[43]T20

83      The plaintiff did not suggest her shoulder was so bad she could not pass a pot of beer or a glass of wine to a customer or take cash out of the cash register.  She could probably do those things.[44]

[44]T21

84      The plaintiff had applied for work at Coles Supermarket in in Colac which opened in September last year.  She applied for a bakery job behind the cash register.  She also indicated to Coles she would like to work at the deli.[45]

[45]T21

85      The plaintiff agreed there was a lot of interest in people getting a job at the new supermarket, and that a lot of them would not have been successful.  She was not offered a job, but if she had been she would have given it a try; however, she has thought her left shoulder would stop her being a checkout person at Coles or in the bakery, because “you are not always standing at the checkout.  You have always got to do other jobs.  You do not just stand there.”  She knew that because she had a friend who worked there.[46]

[46]T22

86      The plaintiff applied for checkout work because she had to go for jobs.  She was on Centrelink –“otherwise, you do not get it”.  It was a possibility, as long as she was not doing any heavy lifting, that she would be fine in this type of work.[47]

[47]T22

87      The plaintiff probably has not applied for a job since early last year. The Coles job would have been the last.  This is because there is nothing that has been there for her.[48]

[48]T35

88      “Maybe, yes or no,” the plaintiff could work in a retail position like a newsagency.  She could stand behind the counter at a newsagency “if that was all it was.”[49]  Maybe she could serve in a clothing shop, but she did not know any reason she could not be a retail sales assistant in such a shop.[50]

[49]T35

[50]T36

89      The plaintiff was asked about being a driveway attendant at McDonald’s.  She could do that job at the window.[51] However, working in the McDonald’s drive through, she would not handle difficult clients very well.  She would have problems cleaning the toilets in the store or breaking up any fights. She would have difficulty recording the orders very quickly on a computer without her daughter’s help.[52]

[51]T36

[52]T43

90      If Bakers Delight rang her and offered her a job, the plaintiff would probably give it a go, and there was no reason she could not serve customers if she just stood at the counter.[53]

[53]T37

91      The plaintiff thought she could not work at Specsavers because she did not have the computer skills. It takes her a while to learn how to do something on the computer. Someone had to show her, how to use like Google and Facebook. There was no reason she could not be shown.[54]

[54]T37

92      There is no car-rental company in Colac. The plaintiff would not be able to go to Geelong and do that job, because it would involve driving every day.[55]

[55]T38

93      The plaintiff would be unable to do the meter-reader job but then asked what was involved.  Walking so many hours a day and hanging onto the device for six hours would cause her a problem.[56]  When asked could she not build up her fitness a bit to have a go at the job, she asked, “at her age?” She could not do a lot of walking, but she does walk for fitness when the weather is fine.  She is prepared to give anything a go if she can.[57]

[56]T38

[57]T39

94      However, at the moment the plaintiff has a certificate from a doctor at Centrelink that she does not have to look for work because of her shoulder.[58]

[58]T40

95      The plaintiff confirmed she applied for jobs because she had to when on Centrelink.  She had to apply for 20 jobs a fortnight, which she did.  She did not think she could perform all the tasks she had applied for, but she applied because she had to.[59]

[59]T41

96      The plaintiff does not know what someone at Bakers Delight actually does for the whole of the shift.  She would have difficulty getting bread or loaves from racks that could be quite high up or off the top shelf.  She is not a very tall person.[60]

[60]T42

97      The plaintiff could not mop the floors in cafés.  She could wipe down benches with her right arm.  It would depend how heavy tubs of food were, whether she could carry them.  She would have problems stretching to get things in a low fridge.[61]

[61]T42

98      There is more to bar work than handing someone a glass. The plaintiff has seen bar staff carrying around stacks of glasses, and she would not go well doing that sort of thing.  She would not be able to wipe down bars regularly and do regular reaching and mopping floors.[62]

[62]T44

99      The plaintiff did not know what was involved in a car-rental officer’s job.  She had never done a clerical job or worked in an office.  She has only worked in a café and the Cumberland twenty years ago.[63] 

[63]T44

100     As a result of her relative inactivity arising from her injury, the plaintiff has put on a fair few kilos and has gone up a couple of clothes sizes.

101     The plaintiff’s injury also continues to affect her ability to sleep at least a couple of times a week.  Both the pain and pins and needles in her left hand tend to wake her in the middle of the night.

102     The plaintiff continues to be restricted doing household chores. Fortunately, her daughter returned to live with her in about June last year.  She does most of the gardening including mowing the lawns.  She also helps with other chores such as cleaning out the cupboards.  They take it in turns to do the vacuuming.  They each do their own washing although when the plaintiff has to peg out her clothes, she brings the line right down.  She finds it difficult making the bed, for example, stretching the bottom sheet out and shaking and putting in the doona.  Her left shoulder tends to play up if she mops the floor.

103     The plaintiff agreed she told Dr Horsley her shoulder tended to play up if she was doing housework, but she did not tell her the pain went away when she stopped. However, when she stopped the activity the pain lessened.  She denied she told Dr Horsley she could be pain-free if she did nothing.  She was not pain-free.  She agreed if she was doing nothing she had minimal pain, and that her pain varied on activity.[64]

[64]T30

104     The plaintiff agreed that when she could not do housework it might be because of her back or her shoulder.  She could still wash clothes and hang them out.  She still made her bed and mopped the floors.[65]

[65]T31

105     The plaintiff continues to be restricted in her ability to go fishing and has only probably gone about once in the last twelve months when she went with her partner to Mildura. He fished and she just watched.[66]

[66]T32

106     Pre-injury, the plaintiff the plaintiff went fishing with her partner two or three times a year.  She would now have problems trying to reel in the line and hang onto the rod, but she has not tried.[67]

[67]T32

107     The plaintiff can no longer gather or split the firewood and her son now arranges this for her.

108     The plaintiff remains restricted in her ability to interact with her grandchildren.  Her oldest grandchild, Eloise, is now about three and the plaintiff has difficulty in engaging in any other than the lightest of activities with her. There are now two further grandchildren who are about a year old.  The plaintiff is asked to look after them about once a fortnight and could do so more often if required.[68]

[68]T24

109     The plaintiff finds sitting difficult driving for prolonged periods of time, for example from Colac to Warrnambool.  Also, vibration when she is travelling in a car can cause increased pain, particularly when going over bumps.

110     Fortunately, the plaintiff’s car is an automatic.  Her partner has a manual vehicle which she was able to drive in the past without any difficulty.  Now, she rarely drives his car as she finds it difficult to change the gears.  She also tends to use her right arm when putting on her seat belt.

111     The plaintiff agreed she could drive an automatic for two or three hours.  She does not often need to drive that far.[69]

[69]T31

112     The plaintiff still has difficulty reaching above head height.  She has difficulty putting on her bra and tends to do it up from the front.  She finds the pressure of her shoulder bag on her left shoulder increases her symptoms and she tends to put her bag on her right shoulder.  She tends to do the shopping in small lots to make it more manageable. She and her daughter each do their own shopping.

113     At home, the plaintiff’s son often leaves his Rottweiler and in addition, her partner has a Labrador Retriever.  The plaintiff would not be able to cope with walking either dog on a leash with her left arm.

114     The plaintiff considers she has been seriously injured as a result of her injury due to her past loss of wages, her future loss of earning capacity and the effects of the injury on her lifestyle and enjoyment of life.

Back and left hip pain

115     The plaintiff has had back pain for a while.  She “did” her back when she worked at the Cumberland.  She redid it again working with the defendant.  She got it fixed but it still plays up from time to time.[70]

[70]T25

116     The plaintiff’s back sometimes stops her lifting and interferes with housework like vacuuming.  Lifting firewood and carrying it is sometimes hard because of her back.  She still lifts one or two bits of wood at a time.[71]

[71]T25

117     The plaintiff then said her back does not prevent her from doing vacuuming and carrying firewood.  Those activities are affected by her shoulder.[72]

[72]T44

118     The only treatment for the plaintiff has had for her back is using ice gel.  She does not have physiotherapy or chiropractic treatment or take tablets for her back.[73]

[73]T25

119     Sometimes the plaintiff’s back causes her problems sitting for long periods.[74]  That would be less often than once a week.  It could be twice a month.  Her back causes her problems with long drives.[75]

[74]T25

[75]T26

120     The plaintiff’s back is not a problem every day of her life.  It “went” twice on her last year, and she was probably laid up for a week.[76]

[76]T43

121     When the plaintiff was working for the defendant, she once had to take some time off work because of her low back. After that, she was fit to go back to work.[77]

[77]T44

122     The plaintiff also has left hip pain, which came on about the time of her back pain and interferes with her activities in a similar fashion.[78]

[78]T26

123     The plaintiff has not had any investigations of her hip or back.

Summary of the Plaintiff’s taxation returns

Financial Year	Taxable Income
2010-2011	$41,409
2011-2012	$51,948
2012-2013	$53,540
2013-2014	$52,889
2014-2015	$53,317

Lay evidence

124     The plaintiff’s twenty eight year old daughter, Jemma Barrow, swore an affidavit on 15 February 2019.  She lived at home with the plaintiff until about October 2016 and moved back in about June last year.

125     Jemma confirmed the plaintiff was a happy, hardworking person before her shoulder injury, undertaking a full range of household activities, loading and moving and also chopping up firewood, a range of gardening activities and keeping a tidy house.

126     Further, pre-injury, the plaintiff enjoyed activities such as socialising with friends and fishing. She struggled to do any fishing now because of her injury and was more likely to attend with family or friends and sit and watch.

127     When Jemma moved back home, she noticed the plaintiff had not been able to keep up with looking after the house. It was a lot dirtier on the inside and the garden was overgrown. 

128     Post injury, Jemma had had to provide a greater level of help with household tasks, with the plaintiff having problems doing a large shop.

129     The plaintiff was worried about losing her house, given her lack of income and the fact she had taken out a loan to do renovations before the injury in the expectation she would be able to continue to work.

130     As a consequence of the plaintiff’s injury, Jemma now undertakes a lot more of the domestic tasks around the house, mainly doing the vacuuming and mopping, loading the wood and putting a lot of work into the garden to getting it back to where it was before the plaintiff’s injury.  The plaintiff just cannot do the pruning, weeding and mowing like she used to, nor can she manage moving the wood around because of her injury.

131     The plaintiff does not socialise like she used to. Her injury has really affected her mood and she has withdrawn from activities with friends.  She is frustrated with her inability to work and is constantly worried about her finances.  The shoulder injury has had a huge effect on the plaintiff financially and on her mental wellbeing.

The Plaintiff’s treaters

132     The plaintiffs attends Otway Medical Clinic (“the Clinic”), where she initially saw Dr Cavill.

133     In his first report of September 2015, Dr Cavill diagnosed left shoulder pain due to left subacromial bursitis and a small 2mm tear in the left supraspinatus tendon.

134     At that stage, Dr Cavill thought the plaintiff was capable of working on modified duties including work involving modest use of the left shoulder.  Such work could be full-time.

135     Dr Cavill then thought the plaintiff’s social, domestic and recreational activities could be restricted by pain depending on the nature of the activity and how much it involved use of her shoulder.

136     Dr Cavill considered the prognosis was gradual sustained improvement, and he thought future treatment involved physiotherapy, self-help, and simple analgesics.

137     As of May 2016, Dr Pojani at the Clinic had seen the plaintiff three times.  She was showing some improvement and was happy with the progress.

138     The plaintiff had had surgery performed by Dr Watson on 29 January 2016 involving a subacromial decompression and SST repair.

139     Dr Pojani believed the plaintiff’s injury had had a significant impact on her life.  Prior to the surgery, she was presenting as stressed and unhappy because she was unable to work, and she had to apply for financial support from Centrelink.

140     Dr Pojani advised that he would be guided by the recommendations of an OT for the plaintiff’s future work options.

141     Dr Pojani most recently reported in December 2018. He then noted that the plaintiff continues to suffer ongoing pain and movement restrictions in her left shoulder joint.

142     Dr Pojani thought the plaintiff was unfit for pre-injury duties, and again suggested an OT would be best to comment on future work options.

143     In Dr Pojani’s view, the plaintiff had left shoulder limitations, not being able to lift more than 5 kilograms, and that reduced her ability to perform domestic and recreational activities.  It was four years since the injury, and she still had episodes of pins and needles in her arms and hands, and she also had lateral neck pain.  Shoulder abduction was limited to 60 degrees.

144     Dr Pojani thought further treatment included pain medication, anti-inflammatories and physiotherapy.  He considered it most likely the plaintiff would develop osteoarthritis in the injured area.

145     The plaintiff first had chiropractic treatment at Buchanan Family Chiropractic, Colac on 2 July 2014.  She then presented with a strain of the left rotator cuff tendon which came on at work.

146     Rahni Buchanan reported that after five treatments and some light duties on 24 July, the plaintiff’s left arm was 90 per cent better; however, she was advised to keep up with her rehabilitation, stretches, and exercises.

147     The plaintiff continued to complain of right shoulder problems when again seen on 29 September 2014.[79]  As at 22 October 2014, Rahni Buchanan thought the plaintiff was unfit for any duty.

[79]T7- this was an error as the plaintiff always complained of left shoulder problems

148     The plaintiff had physiotherapy from Manas Moholkar at Corio Bay Sports Treatment Clinic.

149     The plaintiff first attended for review of her work-related shoulder injury on 22 January 2015, having had an ultrasound-guided corticosteroid injection the week before.

150     Manas Moholkar noted that until 4 June 2015 the plaintiff progressed with her return to work, until she was discharged from physiotherapy management with ongoing home exercises and to return to pre-injury duties.

151     In September 2015, Manas Moholkar thought it would be ideal if the plaintiff visited for a consultation to see how she was going at work.

152     At that stage, Manas Moholkar thought, considering the plaintiff’s physical capacity, which included her age and height, it would be ideal if she sought or was given an opportunity to change her field of work, as repetitive lifting, repetitive reaching out, and repetitive overhead activities could be a contributing factor for her left shoulder impairment to recur, and if she persisted with a similar kind of work, there was a possibility her left shoulder impairment may worsen.

153     The plaintiff attended for a review on 28 September 2015.

154     The plaintiff then advised that after she was discharged with pre-injury duties the defendant never gave her an opportunity to commence or do pre-injury duties.  She was given alternative light duties for a week, following which her employment was terminated.

155     The plaintiff had been getting left shoulder pain for the previous four months doing housework.  She was then employed in a commercial cleaning job with four hours’ a week paid employment, and she was having difficulty getting more substantial work.

156     Manas Moholkar advised the plaintiff to get her left shoulder reviewed by a specialist to explore management options and ideal recovery, return to functional capacity.

157     The Barwon Health records indicate the plaintiff was taken to theatre by Dr Watson on 29 January 2016:

“Preoperative diagnosis was a full thickness complex supraspinatus tear noted on MRI, with a two year history of increasing left shoulder pain, starting post a fall at work – acute injury on a background of a chronic injury”.

158     The plaintiff had further physiotherapy at Colac Area Health from Katelan Walklate from March 2016, following the surgery.  She was treated on a number of occasions until July 2016. It was noted she progressed well during the course of her treatment.

159     Throughout the plaintiff’s rehabilitation she reported steady improvements in the function of her shoulder.  She reported experiencing very minimal pain at full range of movement, and was able to complete all usual daily activities with no issues and complete all required exercises with no difficulties. 

160     The plaintiff reported on 14 July 2016 that a WorkCover claim was in process and she would be looking for new employment.  She was discharged based on her presentation stabilising and being able to complete all relevant functional activities with no issues.

161     At operation, there was significant subacromial bursitis and a 10 millimetre partial thickness supraspinatus tear.  The labrum and biceps tendon were intact.

Investigations

162     Ultrasound – Left Shoulder dated 10 March 2015:

“Subacromial impingement, bursitis and small, partial thickness intrasubstance tear of the supraspinatus.”

163     MRI – Left Shoulder dated 14 November 2015:

“Moderate sized full thickness tear of the distal anterior supraspinatus measuring up to 12 mm anterior-to-posterior x 6 mm medial-to-lateral with moderate underlying tendinopathy of the supraspinatus tendon. There is no atrophy or fatty replacement of supraspinatus. Infraspinatus demonstrates tendinopathy distally with some low-grade intrasubstance tearing but no high grade or full thickness tear. Subscapularis appears intact. There is tendinopathy of the proximal long head of biceps. Mild/moderate AC joint arthropathy is noted with thickening of the subacromial subdeltoid bursa consistent with a degree of bursitis/impingement. There is a Type II acromion but no other specific features predisposing to impingement are identified.”

164     Following the surgery, the Barwon Health Discharge Summary 31 January 2016 read:

“# Left shoulder scope, subacromial decompression and SST repair.

- uncomplicated stay in hospital

- Physiotherapy and OT input

- pain pump with catheter into left shoulder placed, removed before discharge.”

Medico-legal evidence

165     The plaintiff was first examined by Mr Thomas Kossmann, orthopaedic surgeon, in July 2017.

166     The plaintiff then complained of left shoulder pain.  She could lie on the shoulder, but got pins and needles in her left hand.  She could not reach above her head height, was limited in reaching, and could not do up her bra.

167     Mr Kossmann diagnosed left shoulder pathology with full thickness tear of the supraspinatus tendon, tendinopathy of the infraspinatus tendon, with low grade intrasubstance tearing, tendinopathy of the proximal long head of biceps, a mild to moderate acromio­clavicular joint arthropathy, and subacromial-subdeltoid bursitis with impingement.  He also noted there was ongoing pain and movement restrictions in the left shoulder joint.

168     Mr Kossmann then thought the plaintiff had no capacity to return to pre-injury duties. This would continue for the foreseeable future.  He also thought that permanently, she had no capacity to perform suitable employment.

169     Mr Kossmann considered the plaintiff’s prognosis was guarded, and she would require further treatment with pain medication and anti-inflammatories, physiotherapy, hydrotherapy, and possibly acupuncture.  He believed her chances to undergo further surgery were small.  She was at risk she may develop osteoarthritic changes in her left shoulder joint.

170     Mr Kossmann re‑examined the plaintiff in November 2018.

171     The plaintiff then complained she continued to have ongoing pain in her left shoulder.  She could lie on it, but continued to get pins and needles in her left hand.  She had similar difficulties as described on the earlier examination.

172     Mr Kossmann confirmed his earlier views as to the plaintiff’s incapacity for employment.

173     Mr Kossmann was still of the opinion that the plaintiff was not able to return to her pre-injury employment. She was not able to work constantly with her upper extremity, work above shoulder or head height and lift items weighing more than two to five kilograms. She was working throughout her life in physically demanding work with her upper extremities. She then had significant restrictions regarding her upper extremities and therefore he believed that she has no work capacity.

174     The plaintiff was examined by occupational physician, Dr Robyn Horsley in December 2018.

175     Dr Horsley noted the plaintiff had had a good response to the surgery.  The plaintiff had told her, this year, she had begun to experience some discomfort.  The shoulder tended to play up if she was mopping the floor, overreaching to clean cupboards, or repetitive lifting, such as making the bed.  She then had to stop the activity.  If she did, the pain resolved.  However, if she continued with the activity, the discomfort could continue for some hours.  The plaintiff then treats her discomfort with an anti-inflammatory.

176     Dr Horsley noted the plaintiff can be pain free if she is doing nothing.  When she does experience pain, it depends upon the activity, from 3/10 up to 8-9/10.  The pain is located over the anterior aspect of the left shoulder and can radiate into the left biceps area.

177     On examination of the left shoulder, there was no significant wasting.  There was some restriction of left shoulder movement.

178     Dr Horsley concluded the plaintiff presented with residual left shoulder disability.

179     In Dr Horsley’s view, the plaintiff was disadvantaged.  She is fifty-seven and has been out of the workforce for two years.  She presented in an unsophisticated manner:  she has comprehension and literacy issues, and her opportunities for redeployment are very limited.

180     Dr Horsley believed the plaintiff’s work had been a significant contributing factor in terms of her current clinical presentation.

181     Dr Horsley noted the plaintiff presented with fear avoidance behaviour and reduced range of motion.  On history, she experienced intermittent left shoulder discomfort with repetitive activities, including any repetitive overreaching, pushing, pulling and lifting.

182     Dr Horsley believed the following work restrictions apply to the plaintiff’s left shoulder:

·        Avoidance of repetitive overreaching.

·        Avoidance of repetitive pushing and pulling.

·        Avoidance of above shoulder activities, and she should work between shoulder and waist height.

·        Avoidance of working in awkward and confined spaces.

·        Avoidance of static postures involving the left shoulder girdle.

·        Avoidance of lifting items greater than 10 kilograms, except on an occasional basis.

·        Avoidance of lifting items up to 8 kilograms on a repetitive basis.

·        Good manual handling technique, even when lifting light items.

183     Dr Horsley noted the plaintiff’s functional tolerances were impacted by low grade mechanical back pain and left hip discomfort that have not been investigated at this point.

184     Dr Horsley thought the plaintiff’s opportunities for redeployment outside of the manual area within the restrictions suggested were very limited.  She noted the plaintiff’s comprehension/literacy issues, and her very low grade computer skills and low grade qualifications.

185     On the plaintiff’s presentation that day, Dr Horsley thought, in an open and competitive marketplace, she would find it difficult to find appropriate work within the suggested restrictions.  She was likely to remain off work into the foreseeable future and her career had been truncated by her left shoulder disability.

The Defendant’s medico-legal evidence

186     Dr Gale Curtis, orthopaedic surgeon, examined the plaintiff in March 2018.  The plaintiff then complained of 24/7 pain in her left shoulder, with modest loss of efficient use of the left upper limb.

187     On examination, there was minor wasting of the plaintiff’s deltoid and spinati.  The rotator cuff was still tender.  Active movements of forward flexion and abduction were 130 degree. Rotations were restricted.  The peripheral neurology was normal, and there was some evidence of minor impingement remaining following surgery.

188     Dr Curtis diagnosed right rotator cuff pathology with Type 2 acromion aggravated by employment and treated surgically.  He thought the plaintiff had made good improvement following the surgery, although she still had some residual symptoms.

189     On the basis of that examination, Dr Curtis thought there was no indication of any further surgery, and future treatment should be conservative.

190     Dr Curtis considered the plaintiff had a work capacity for lighter working duties such as those identified by occupational rehabilitation. He thought she would be unwise to return to her pre-injury duties now, as she would risk further injury.  However, he thought she had a current work capacity.  Jobs would require lifting restrictions of 5 kilograms, push/pull the same, and the plaintiff would need some five‑minute breaks each hour, and preferably no overhead work. 

191     Dr Curtis was sure there were other forms of employment available for the plaintiff of a similar nature, as identified by occupational rehabilitation, such as meet and greet and reception work.

192     Dr Curtis considered the plaintiff’s current conservative treatment should remain, and that she now was largely fit to transition now to self-management.  The important issue was that she avoid employment options which engage a degree of risk such as repeated overhead work and repetitive twisting and lifting and load.

193     Dr Joseph Slesenger, occupational physician, examined the plaintiff in May 2017 and December 2018.

194     On the first occasion, the plaintiff reported ongoing pain in the left shoulder and noticed difficulty with forward reaching as well as over-shoulder reaching.  The pain was mild to moderate.  She tended to be more reliant on the right side, and advised pain was aggravated by sleeping on the left.

195     The plaintiff was then taking Panadol as required, seeing her general practitioner, and had stopped physiotherapy in 2016.  She had seen Mr Richard Page in 2015 and 2016, and had surgery under his care.

196     The plaintiff advised that she ceased work in June 2015, and in August that year was able to secure employment as a cleaner at Trinity College in Colac, where she worked four hours a day, two days a week, for six weeks, as a vacuum/backpack cleaner.  Subsequently, she had undergone retraining for RSA, a food handler’s certificate, and a Responsible Service of Gaming certificate.

197     On examination, palpation of the left shoulder was normal.  Flexion was to 140 degrees, extension 40 degrees, internal and external rotation 70 degrees, and abduction 140 degrees.  The lift-off test was weak, and the impingement test was negative.  There was no wasting.

198     Dr Slesenger noted that this clinical examination demonstrated a moderate restriction to the plaintiff’s range of left shoulder movements.

199     Dr Slesenger was then of the view the plaintiff had a residual restriction.  She could not return to her pre-injury duties with their manual handling and postural requirements.  However, he thought she did have a capacity for employment with restrictions, namely no over-shoulder reaching, no push, pull, carry or lift over 7.5 kilograms, and no repetitive shoulder work.  He thought she had a capacity for full-time work.

200     On re‑examination, the plaintiff advised her left shoulder symptoms had persisted with ongoing pain over the lateral and superior aspect of the shoulder.  The pain radiated to the left side of the neck, neck symptoms having been present for about six months.  She also advised in the last six months she had developed tingling in the middle, ring and index fingers of the left hand, and had noticed a loss of grip strength.

201     The plaintiff advised she had not returned to work and had not undergone retraining since her last assessment.

202     Dr Slesenger noted since the last evaluation, the plaintiff’s range of movements had improved, and also that she was not engaged in any further treatment.  He was therefore of the opinion that whilst she was likely to have residual left shoulder impairment and associated dysfunction, that was likely to be limited.  He thought she should continue to engage in a self-managed exercise program and take anti-inflammatories or analgesia as required.

203     Dr Slesenger advised against the plaintiff returning to her pre-injury duties, and remained of the opinion that she should adhere to the restrictions he had suggested following the earlier examination.

204     Dr Slesenger was generally optimistic the plaintiff would have the physical capacity to perform the role of retail sales assistant, optical dispenser at Geelong City Centre.  However, he noted her lack of computer skills, and advised against her returning to work in that role.

205     Whilst Dr Slesenger thought the plaintiff had the capacity to perform the inherent demands of rental customer service officer in Preston, he noted the computer skills required in that role, and advised her against returning to work in that job.

206     Dr Slesenger thought the plaintiff had the physical capacity to perform the role of customer service officer-ordering clerk in Springvale, but again made similar comments about her lack of computer skills.

207     Dr Slesenger advised the plaintiff against returning to work as a gaming attendant in Mulwala, as the job demands would require her to perform over-shoulder reaching (whilst manoeuvring the gaming machines and refilling the bar area).  He thought the job demands could also require computer skills as part of a cashier role, and they may require heavy manual handling whilst cleaning and restocking the bar area, which would lie outside her capacity limits.

208     Dr Slesenger thought the plaintiff could return to work in the role of a meter reader in Thomastown with the restrictions he suggested.  He considered she could return to work performing suitable alternative duties on a full-time basis.

209     Dr Slesenger provided a supplementary report, having been sent the plaintiff’s general practitioner’s clinical notes.

210     The general practitioner had noted that post injury, the plaintiff was treated with anti-inflammatories.  She also had a steroid injection in the left shoulder.  This resulted in some improvement in the symptoms. She was engaging with her return-to-work coordinators, and by December 2014 there had been some improvement, although the plaintiff’s symptoms had not resolved.

211     Throughout 2015, the plaintiff attended her GP, noting ongoing functional limitation, for which she received advice and certification.  She was referred to the orthopaedic department at Barwon Health in mid-2015, where she was regularly reviewed.

212     By March 2016, it was noted the plaintiff was struggling with ongoing left shoulder impairment, and had an arthroscopy, including an arthroscopic subacromial decompression and supraspinatus tendon repair.

213     By August 2016, it was noted the plaintiff had recovered well from surgery and was willing to progress to returning to work on a full-time basis.  By the end of the year, she required ongoing certification and had been advised to receive a sick note on a monthly basis.  It was also noted the plaintiff was not working, although was due to undergo re‑evaluation of her capacity.

214     By February 2017, it was noted there was a dispute with regard to the plaintiff’s capacity.  By April, there was a concern with regard to her liver function testing and the use of alcohol.  Throughout 2017, the plaintiff attended her GP for certificates.  In particular it was noted she had no residual capacity.

215     In March 2018, it was noted there had been some improvement with regard to the plaintiff’s left shoulder range of movements.

216     Dr Slesenger concluded the records disclosed document the injury as disclosed to him and confirm ongoing treatment.  Nevertheless, he remained of the opinion, based on the history of the examination and review of documentation, that the plaintiff could not return to unrestricted pre-injury duties, although she retained a capacity for work with the restrictions he had previously suggested.  His opinion with regard to her capacity for alternative duties remained unchanged.

Vocational assessment

217     Janette Ash and Nikki Burden, Recovre vocational consultants, prepared an assessment in December 2018.

218     Documents available for the preparation of that report were the plaintiff’s affidavit, her claim for compensation, Dr Slesenger’s 2017 report, a WorkAble vocational assessment report of 22 February 2018, and Dr Curtis’ March 2018 report.

219     The following physical tolerances were noted : lifting less than 5kgs with the left arm, potentially more with the right; pushing-pulling: favours right arm for pushing-pulling tasks; and driving up to three hours in an automatic vehicle.

220     Based on the plaintiff’s education, work history, and transferable skills, the following work options were identified as suitable for her to consider: retail sales assistant, $850 gross per week; rental sales person, $1,095 gross; order clerk, $1,150 gross; gaming worker, $1,188 gross; and meter reader, $925 gross per week.

Overview

221     There is no dispute the plaintiff suffered an injury to her left shoulder, involving a full thickness supraspinatus tear, during the course of her employment in 2014.  

222     The plaintiff’s claim was ultimately accepted, and weekly payments were made for 130 weeks (until July 2018). The 2016 surgery was funded by the insurer.

223     In this application, there is no suggestion of any relevant pre incident left shoulder problem or any issue as to the organic basis of the plaintiff’s present impairment.

224     Counsel for the defendant submitted the pain and suffering consequences were not serious but there would be “quite a focus” on economic loss with reliance on the opinions of Dr Curtis and Dr Slesenger.[80] 

[80]T3

Credit

225     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[81]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[81](2010) 31 VR 1 at paragraphs [12] and [11]

226     During the hearing, I indicated I thought the plaintiff was extraordinarily candid. In those circumstances, counsel for the defendant did not make any credit submissions.[82]

[82]T49

Pain

“The evidentiary basis of the pain assessment will ordinarily comprise the following:

(a)  what the plaintiff says about the pain (both in court and to doctors);

… .”[83]

[83]Haden (supra)

227     Since the said date, the plaintiff has continued to complain of pain at the top of her left shoulder, radiating into her left arm. Whilst there appeared to be some improvement in 2015, the plaintiff ultimately came to surgery in January 2016. Although there has been improvement since this procedure, the plaintiff’s left shoulder problems have continued. Her complaints to doctors have been in similar terms.

228     Although the plaintiff does not describe her pain as severe,[84] at times it is as high as 8 out of 10, depending on the activity, as she recently reported to Dr Horsley.

[84]T59

229     Whilst it may be said the plaintiff’s medication intake is to the lower end of the spectrum,[85] she requires regular Panadol and occasional Mobic. Her intake is limited however due to side effects with stomach problems and a hiatus hernia.[86]

[85]T59

[86]T68

230     The plaintiff underwent physiotherapy treatment at various times and also chiropractic treatment for her shoulder injury. She had a cortisone injection in her shoulder in 2015 and ultimately came to surgery in January the following year.

231     As a result of her shoulder pain, the plaintiff’s shoulder movements are restricted as a number of examiners have noted. Above shoulder and repetitive left arm activities are particularly difficult for her.

232     A range of the plaintiff’s activities are affected by her shoulder pain including looking after her grandchildren and doing the heavier housework and gardening as her daughter confirmed.[87] However, the plaintiff still manages to do most domestic activities.[88] 

[87]T68

[88]T60

233     Further, whilst the plaintiff can no longer go fishing because of her shoulder problem, it was an activity in which she engaged infrequently pre incident, going fishing only two to three times a year.[89]

[89]T60

234     The main consequence of the plaintiff’s shoulder pain and restriction however is her inability to do unrestricted manual work- a view shared by all medical examiners. 

235     Whilst the plaintiff still has a capacity for light work,[90] the range of jobs now available to her is significantly limited by her shoulder injury as she has worked all her life in manual work.  Further, she has now been out of work for in excess of four years. 

[90]T58

236     As counsel for the plaintiff submitted, if she does find work, the plaintiff is going to be “living on a precipice in case something goes wrong.  Either the job folds, or her body folds: one of the two.”[91]

[91]T67

237     The plaintiff’s only attempt at work post injury was short lived and she was unable to cope with even a few hours cleaning per week in 2015.

238     The plaintiff is an uneducated, unsophisticated woman who has worked in manual jobs her whole life. She enjoyed working and the financial independence working gave her. That has now been lost. In my view, this is a serious consequence.

239     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, she has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also

(b)    after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).

240     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.

241     The former must be calculated by reference to the six-year period specified in s325(2)(f).

242     “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.

243     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.

244     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.[92]

[92]Barwon Spinners Pty Ltd v Podolak (supra)

245     I am therefore required to determine a “without injury” earnings figure.

246     There was some debate as to what was the appropriate “without injury” earnings figure in this case although there was little difference in the suggested figures.

247     Counsel for the plaintiff based the figure on the plaintiff’s gross earnings of $52,889 in the 2013-2014 financial year with 2 per cent annual increases making a total of $56,126. That is a weekly amount of $1,079, 60 per cent of which is $647.[93]

[93]T46

248     Further, counsel for the defendant relied on a PAYG group certificate for what was said to be a comparable employee who earned $54,510.[94]  Sixty per cent of that figure is $32,706 or $629 per week.

[94]T47

249     As I have no details of the comparable employee save for the group certificate I prefer the figure suggested by counsel for the plaintiff. However, given my ultimate finding in relation to loss of earning capacity, the plaintiff would clearly suffer the requisite loss on either figure.

250     Counsel for the defendant submitted the plaintiff retains a capacity for light work that does not involve pushing, pulling, carrying or lifting over 7½ kg or any overhead reaching. Both Dr Slesenger and Dr Curtis were of this view and it was submitted they should be preferred over Dr Horsley and Mr Kossmann.[95]

[95]T52

251     Counsel for the defendant submitted that Dr Horsley focused on the wrong issue, namely an assertion that the plaintiff was going to find it hard to get work, which is not the test.[96]

[96]T48

252     Dr Horsley’s opinion was also criticised on the basis of her finding that the plaintiff had comprehension and literacy issues in the absence of any testing, based only on the plaintiff’s ability to read the paper and the assertions made by her.  It was submitted there was nothing in the plaintiff’s affidavit or any oral evidence in this regard. Dr Horsley was relying on something that had not been proven, and that weakened her conclusion.[97]

[97]T51

253     Further, counsel for the defendant submitted Mr Kossmann came to the conclusion that the plaintiff had no work capacity without providing a path of reasoning.  He just did not analyse whether she had any capacity for light work.  He jumped from a comment that the plaintiff could not do strenuous work with her arms to her having no work capacity, without considering whether she had a capacity for light work.[98]

[98]T52

254     On the other hand, Dr Slesenger thought the plaintiff was physically capable of performing a wide range of jobs, including retail sales assistant.[99]

[99]T52

255     Whilst the suggested retail job was at an optical shop, retail covered a wide field and it was not suggested that was the only retail assistant job the plaintiff could perform.[100]

[100]T52

256     It was submitted Dr Slesenger did not knock out all retail work on the basis of computer skills, confining his opinion to an optical shop.[101]

[101]T54

257     It was submitted the plaintiff did not lack computer skills for this job.  She has basic computer skills at least, having her own phone and laptop.  Secondly, many retail sales assistants’ jobs do not require any more than basic computer skills.  Very few employees are going to turn up at a new job and already be familiar with that particular employer’s computer system, and they can then be taught. That was relevant here because the plaintiff had demonstrated a capacity to learn things about computers when she was taught.[102]

[102]T53

258     Counsel for the defendant emphasised that Dr Slesenger thought the plaintiff had the physical capacity to perform the various suggested roles.[103]

[103]T54

259     It was submitted the plaintiff’s applications to employers such as Bakers Delight and Coles were consistent with her recognising she had a capacity to perform that type of work.  The application for the Coles’ job was well and truly after the plaintiff commenced receipt of weekly payments and she was no longer a Centrelink recipient who was required to seek work. – “she applied for that job because she wanted to work and gets credit for it.”[104]

[104]T55

260     It was submitted the plaintiff was confident she could work in the bakery or as a checkout cashier.  Work as a retail assistant attracted a wage of $850 gross per week.  As Dr Slesenger thought the plaintiff could work full-time, in this role she would not suffer the requisite loss.[105]

[105]T55

261     As the vocational report detailed, there are plenty of retail sales assistants’ jobs in Colac, so it is not a situation similar to that in Giankos v SPC Ardmona Operations Pty Ltd[106] where there were no suitable jobs available in the local area.

[106](2011) VSCA 2011 at paragraph [33]

262     It was submitted it ought not be assumed every single bar-person has to do heavy lifting. The suggested job in this field pays $1,095 a week, 60 per cent of which is well over $647.[107]

[107]T56

263     It was submitted the plaintiff has the capacity for the meter-reading job.[108] In response to my query about the suitability of this role for a woman of the plaintiff’s age, counsel for the defendant responded that she is only fifty-seven, not seventy-seven.  It was submitted there are a lot of fifty-seven‑year-olds who manage that sort of continuous walking.[109]  It would not be too far for the plaintiff to drive to Geelong to do this job. If she worked full time in this role, she would not suffer the requisite loss.[110]

[108]T56

[109]T57

[110]T58

264     In response, counsel for the plaintiff was critical of the defendant’s suggestion the plaintiff could do a range of jobs that were not endorsed by the vocational assessor because there was no detail of what was required in the particular job, such as Bakers Delight.[111] 

[111]T61

265     In those circumstances, it was submitted that the suggested jobs should be focussed on as they had been selected by the vocational assessors as the best possible option. If it was accepted those options are not open or do not constitute suitable employment, then it could be inferred there is no suitable employment for which the plaintiff is suited, and therefore she has established the requisite loss.[112]

[112]T61

266     Counsel for the plaintiff went through the factors in the s3 definition of suitable employment.[113]

[113]T61

“Suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—

(a)     having regard to—

(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; and

(ii)     the nature of the worker's pre‑injury employment; and

(iii)     the worker's age, education, skills and work experience; and

(iv)     the worker's place of residence; and

(v)any plan or document prepared as part of the return to work planning process; and

(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker; and

(b)     regardless of whether—

(i)     the work or the employment is available; and

(ii)the work or the employment is of a type or nature that is generally available in the employment market.”

267     It was submitted that just because someone is physically capable of, for example, being a sales representative, they are not necessarily suited to doing that job.  A lot of skills are nothing to do with physical ability.  A sales representative would need to be able to sell and deal with people. Further, a work history is an excellent guide to what a person’s strengths and weaknesses are.  That is why it is important in the “suitable employment” definition.[114]

[114]T62

268     In this case, since at least 1996, the plaintiff has basically worked as a cleaner and factory worker.  When she was very young, she worked as a sandwich-hand and in a café, but that was all when she was in her teens.[115]  She was then out of the work having a family, and from then on has basically been a cleaner and factory worker, with the sole exception of working for a short time at the Cumberland Hotel.[116]

[115]T62

[116]T63

269     Addressing the criticism of Dr Horsley’s report, counsel for the plaintiff relied on the Court of Appeal’s comments in Giankos[117] stressed the importance of an occupational physician’s report.[118] 

[117]Supra

[118]T63;  Giankos (ibid) at paragraph [30]

270     Further, the plaintiff was not challenged about her literacy skills. It was submitted that her evidence about her problems with computers is clear.  She really struggles.  While she has been shown how to do things, she does not really remember how to do them, and has to be told again.  What she can do is no real indicator of computer skills.[119]

[119]T64

271     It was submitted that the optics job would appear to be more computer-based clerical-type work, which Dr Slesenger says, rightly, the plaintiff is not up to.[120]

[120]T64

272     Further, it was submitted the more physical a retail sales job is, and the less computer involvement, the more difficult it is for the plaintiff.  For example, if she worked in a sandwich bar there would be a lot of carrying of food and cleaning up the shop and not much computer work.[121]

[121]T64

273     The plaintiff has not worked in any role dealing with the public since 2003.  It was submitted there is no reason to suspect she has sales skills.  She might be able to do a job as a sandwich-hand, but she would not be able to cope physically with it.[122]

[122]T64

274     The rental assistant role is very plainly a clerical job, and the plaintiff has no clerical experience whatever, and has never worked in an office, nor is there any reason that she would have the capacity to do what is required.  Indeed, she did not even fill out her own WorkCover form.[123]

[123]T65

275     Whilst not pressed by the defendant, it was submitted the job of order clerk was unsuitable, as it was very plainly extremely clerical.[124]

[124]T65

276     Counsel for the plaintiff submitted the meter-reader job was also unsuitable.  There are no jobs available in Colac. The ad for the particular job included the following:

“About you:

·     Comfortable working in an outdoor and physically demanding environment in all weather conditions.

·     Good level of fitness, able to walk approximately 6 hours each day.

·     High attention to detail, and have a very strong work ethic.

·     Are reliable, punctual and able to meet strict deadlines.

·     Hold a current valid driver’s licence and have a reliable motor vehicle.”

277     There is nothing to suggest the plaintiff is suited to physically demanding work of this nature.[125]

[125]T66

278     It was submitted the suggested jobs were not suitable, as Dr Horsley concluded.[126]

[126]T66

279     On that basis it was submitted, tying all that together, the plaintiff has established she meets the 40 per cent loss.  She has no capacity, and it does not matter whether the figure is $627 or $647.[127]

[127]T67

280     Taking into account all the evidence, I am satisfied the plaintiff has suffered the requisite loss.

281     The plaintiff is an uneducated, unsophisticated manual worker and there is no reason to think why, now, post injury, she would be suitable for clerical or retail work when, in my view, her computer skills are very basic and would not be improved by any training and she has no work experience in these fields.

282     I accept Dr Horsley’s view about the plaintiff’s literacy and comprehension issues, having observed the plaintiff in the witness box.  It is not necessary for there to have been formal testing to come to this conclusion.

283     Clearly, it is not a question of whether the plaintiff would find work in an open market, it is a question of capacity, that is relevant for my consideration.  However, in deciding this issue, the factors set out in the definition of “suitable employment” in s3 of the Act are relevant when considering this.[128]

[128]Richter v Driscoll [2016] VSCA 142 at paragraph [26]

284     Given the plaintiff’s age of fifty-seven, her limited work experience, mainly of a manual nature, and the injury suffered by her and with its ongoing pain and restrictions, I am satisfied she does not have a capacity for suitable employment in any of the jobs suggested or any other job on a regular, consistent basis as a result of her left shoulder injury alone, excluding any problems she may have with her back.  Accordingly, the plaintiff has established the requisite loss being unable to earn in excess of either suggested figure.

285     Given the duration of her symptoms despite a range of treatment, including surgery, I am satisfied the plaintiff’s left shoulder impairment is permanent.

286     I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).

287     In light of my findings as to the plaintiff’s impairment and her 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 she 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 her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g). 

288     If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, ie both for pain and suffering and loss of earning capacity.[129]

[129]See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph 147 and Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdulle  [2009] VSCA 170

289     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.

- - -