Begg v G4S Australia Pty Ltd
[2019] VCC 1501
•19 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03857
| LYNETTE BEGG | Plaintiff |
| v | |
| G4S AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 June 2019 | |
DATE OF JUDGMENT: | 19 September 2019 | |
CASE MAY BE CITED AS: | Begg v G4S Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1501 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the right shoulder – paragraph (a) of the definition of “serious injury” – loss of earning capacity – whether consequences of injury to the right shoulder are serious in nature – relevant principles
Legislation Cited: Workplace Injury Rehabilitation Act 2013, s335(2)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission& Avalanche [2005] VSCA 1; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr C O’Sullivan | Slater & Gordon |
| For the Defendant | Mr P b Jens QC with Ms F Crock | Minter Ellison |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation & Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff while employed by G4S Australia Pty Ltd (“the employer”), on 12 June 2015, while loading a patient into an ambulance at Knox Private Hospital (“the accident”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
Relevant legal principles
3 The application for leave to bring proceedings for damages is brought pursuant to s(a) of the definition of “serious injury” as that term is defined in s325(1) of the Act, namely:
“‘Serious injury’ means –
(a)permanent serious impairment or loss of a body function … .”
4 The impairment of body function relied upon is the right shoulder.
5 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury”, by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer on or after 1 July 2014. As set out in s325(1), the impairment of the body function must be permanent.
6 The plaintiff has the burden of proof on the application. The standard of proof is the balance of probabilities.
7 By s325(2)(c) of the Act, it is the “consequences” of the bodily impairment which produce the “pain and suffering” or “loss of earning capacity,” which must be “serious” – that is, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of body function results in relevant “consequences” that are “when judged by comparison with other cases in the range of possible impairments fairly described as being more than significant or marked, and as being at least very considerable”. This has been referred to as the “narrative” test. It has been held that this task is largely a question of impression or value judgment.[1]
[1]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67].
8 Sections 325(e) and (f) set out the statutory formula by which the Court must measure the plaintiff’s loss of earning capacity prior to any grant of leave. This formula provides that the plaintiff must establish a loss of earning capacity of 40 per cent or more, as measured in accordance with s325(f) of the Act.
9 In determining the application, the Court:
(a)must assess whether the injury is a “serious injury” as at the time the application is heard;[2]
(b)must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[3]
[2]s325(2)(j) of the Act.
[3]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26].
10 Section 325(2)(h) requires me to disregard all psychological or psychiatric consequences in determining an application which relates to a physical impairment.
11 By s325(2)(b), in determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the impairment arising from the injury the subject of this application and the range of possible impairments or losses of body function.
12 In reaching my conclusions in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and Grech v Orica Australia Pty Ltd & Anor.[5]
[4](2005) 14 VR 622.
[5](2006) 14 VR 602.
13 The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined.
14 In addition, both parties relied upon medical reports and other materials which were contained in the Court Books.[6] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[6]The Plaintiff’s Court Book (“PCB”) was marked as Exhibit P1. The Defendant’s Court Book (“DCB”) was marked as Exhibit D1.
The Plaintiff’s background
15 The plaintiff was born in July 1953 and is presently 66 years of age.[7] She is married. She has five adult children and seven grandchildren. She is right-hand dominant.[8]
[7]Exhibit (“Ex”) P1, p 11.
[8]Ex P1, p 11.
16 The plaintiff completed Year 9 at school. She worked as a sewing machinist for several months and then commenced an apprenticeship as a hairdresser. She did not complete her apprenticeship. She then worked as a cashier in a supermarket.[9]
[9]Ex P1, p 12.
17 She got married and spent the next twenty years raising her five children. In the middle of the 1990s, she returned to work as an integration aide with the Education Department. She worked in that role for about six years. In about 2002, she became the owner/manager of a hairdressing salon. Her role was managerial in nature, and she employed several hairdressers.[10]
[10]Ex P1, p 12.
18 In mid-2009, the plaintiff commenced employment with G4S Health Services as a part-time patient transport officer (“PTO”). Her hours gradually increased, and in 2011 she sold her hairdressing business.[11]
[11]Ex P1, p 12.
19 Her work as a PTO involved considerable manual handling. The work involved her loading and unloading stretchers the vehicle. The stretchers weighed between 50 and 60 kilograms. The plaintiff worked with the assistance of another PTO. The patients would often be heavy and had medical conditions which meant that they could not assist the PTOs to get onto the stretcher.
20 The work involved regular bending, stretching, reaching, pushing, pulling, lifting and carrying. There was generally no lifting equipment, but occasionally it would be available at a nursing home or a hospital, when not being used for other patients. At times, the stretchers had to be pushed across rough and uneven ground. The plaintiff and her partner generally moved between eight to ten patients per shift. The work placed stress on the plaintiff’s shoulders and spine.[12]
[12]Ex P1, pp 12-13.
21 In December 2014, the plaintiff and her husband moved to Lake Tyers Beach. She changed her working hours. She worked sixty hours per fortnight, doing six ten-hour shifts in a row, staying with her parents in Gembrook, and then spending eight days off, living with her husband in Lake Tyers. Her husband had retired, so it was important that she continued to earn a good income.[13]
[13]Ex P1, p 13.
22 In 2015, the plaintiff became aware that G4S Health Services had lost its contract and that she was likely to be made redundant. A lot of experienced employees left when they had the opportunity to obtain work with other private ambulance services or with Ambulance Victoria. After this time, the plaintiff was often working with inexperienced staff.[14]
[14]Ex P1, p 13.
23 From about April 2015, the plaintiff began to develop some pain in her right shoulder and neck region due to the physical nature of the work. The pain in her right shoulder gradually increased and she started using Voltaren gel to ease the pain. By the end of her six-day shift at work, the pain would become troublesome. Her sleep was disturbed by the pain. Her pain would ease a bit when she had eight days off work.[15]
[15]Ex P1, p 13.
24 The only relevant injury which the plaintiff had sustained in the past was an injury to her right biceps tendon which occurred in 2006. She took some anti-inflammatory medication at that time and had some physiotherapy. Her injury “settled.”[16]
[16]Ex P1, p 12.
25 A summary of the income tax returns for the plaintiff was included in the Plaintiff’s Court Book.[17] The plaintiff submitted that the appropriate without injury gross earnings figure is $57,164 per annum, as per her 2013 financial year tax return. Sixty per cent of that figure is $34,298 or $659.58 per week.[18] The defendant agreed that this figure was appropriate.[19]
[17]Ex P1, p 75.
[18]T38 L29.
[19]T38, L29-31.
The accident
26 On 12 June 2015, the plaintiff was working with an inexperienced partner. At around midday, they were loading a patient who was on a stretcher into the back of the vehicle in the ambulance bay at the Knox Private Hospital. The ambulance bay area was crowded, so the plaintiff and her partner were not able to open the doors fully to the sides. As they were pushing and lifting the stretcher into the vehicle, her partner pushed the stretcher in a way which caused the plaintiff’s right shoulder to come into contact with the leading edge of the right back door of the vehicle. She felt a sharp pain in her right shoulder at this time. She continued working.[20]
[20]Ex P1, pp 13-14.
27 Over the coming days, her right shoulder pain continued and she attended Dr Krawitz at Casey Hospital on 17 June 2015. She advised him of her increasing right shoulder pain over the past two months. He prescribed Mobic and she had a day off work. She then resumed her normal duties.[21]
[21]Ex P1, p 14.
28 The work which the plaintiff was doing continued to aggravate her right shoulder pain. She had an x-ray and ultrasound of her right shoulder on 25 June 2015. This showed evidence of chronic disruption of the bicep tendon, a full thickness tear of the supraspinatus, and subacromial bursitis. She saw Dr Hussain at Casey Hospital on 26 June 2015, and told him that her right shoulder pain was getting worse. She was prescribed Tramadol and Panadol, and given a few days off.[22]
[22]Ex P1, p 14.
29 She was referred to an orthopaedic surgeon, Mr Patrick Byrne, and saw him on 30 June 2015. She confirmed to Mr Byrne a two-month history of gradually increasing shoulder pain, worsening with her continuing work as a PTO. On the same day, she had an ultrasound-guided injection into her right subacromial bursa. This significantly reduced her pain for a few days. She returned to work, but by 11 July 2015she was struggling with her heavy work duties, and her pain became severe. That was the last day she had at work.[23]
[23]Ex P1, p 14.
30 Up until this time, the plaintiff had avoided making a WorkCover Claim, as she wanted to “soldier on [at] work and avoid a fuss”.[24] She completed a WorkCover claim form on 17 July 2015.[25]
[24]Ex P1, p 14.
[25]Ex P1, p 14.
Evidence concerning the consequences of the injury
31 The plaintiff swore two affidavits, the first dated 16 April 2018 and the second dated 3 May 2019.
32 In summary, her evidence as to the pain and suffering consequences which she presently experiences is as follows:
Experience of pain and treatment
(a)she had a repeat ultrasound-guided injection into the right subacromial bursa on 30 July 2013. This “helped a bit”;[26]
[26]Ex P1, p 15.
(b)she went on a pre-arranged overseas holiday for six weeks from 1 August 2015. She had continuing shoulder pain and this impacted on her ability to lift and carry, and to engage in physical activity. Her pain gradually worsened as the effect of the injection wore off;[27]
[27]Ex P1, p 15.
(c)she had an MRI scan of her right shoulder on 21 September 2015. This showed multiple problems, including full thickness tears of the supraspinatus and infraspinatus tendons, a superior labral tear from anterior to posterior (known as a SLAP tear), subacromial bursitis, degenerative glenohumeral joint changes, degenerative A/C joint changes and the chronic tear of the long head of the biceps. It was recommended that she have surgery;[28]
[28]Ex P1, p 15.
(d)on 22 October 2015, arthroscopic surgery was performed involving subacromial decompression and a major rotator cuff repair. The pain she experienced following the surgery required pain-relieving medication;[29]
[29]Ex P1, p 15.
(e)she made a very poor recovery from the surgery. By December 2015, her pain levels were worse than they had been prior to the surgery and her right shoulder was extremely stiff and sore. A further MRI scan was performed on 30 December 2015. This showed no intact supraspinatus or infraspinatus tendons, severe wasting of the associated muscles and a markedly abnormal greater tuberosity with bony fragmentation and fluid, indicating possible avascular necrosis. This indicated that the surgery had failed;[30]
[30]Ex P1, p 16.
(f)she underwent revision surgery on 18 February 2016. She was placed in an “aeroplane” abduction splint for six weeks following the surgery. She had strapping around her chest and abdomen in order to support the splint, which had her arm raised and out in a fixed position. She could not lie down to sleep and had to sleep sitting up. She required nursing assistance to shower and to clean her after toileting. She could not do anything around the house;
(g)the plaintiff experienced various complications as a result of the position of the splint and participated in various therapies and treatments to try to address these issues. Despite all the treatment and medication, by January 2017, she still had very limited movement of her right shoulder and right hand. Apart from the ongoing physiotherapy and hydrotherapy, at this time she was doing a lot of exercises at home, using elastic bands, and also engaging in aqua therapy;[31]
[31]Ex P1, p 17.
(h)the plaintiff continues to suffer from constant pain in her right shoulder and hand. She has difficulty gripping with her right hand and often drops things. She experiences a loss of sensation in her right hand. She has difficulty reaching with her right shoulder and she is restricted when trying to reach forward, to the side, and above her head;[32]
[32]Ex P1, pp 18-19.
(i)she no longer has regular physiotherapy.[33] She does self-managed hydrotherapy and self-managed hand exercises;[34]
[33]Ex P1, p 22.
[34]Ex P1, pp 19, 22
Medication
(j)the plaintiff takes Celebrex, 100 milligrams, and Panadol Osteo, generally six per day. She has to take Nexium, 20 milligrams, because of the side effects of the Celebrex;[35]
[35]Ex P1, p 22.
(k)As a result of her injury, her ongoing pain, her poor sleep and the restrictions that places upon her, she has become anxious and depressed. She takes Zoloft, 100 milligrams;[36]
[36]Ex P1, pp 19, 22.
Sleep
(l)the plaintiff sleeps poorly because of the pain.[37] On some nights she gets very little sleep at all. Sometimes she takes a nap in the afternoon. Her pain and tiredness makes it very difficult to concentrate;[38]
[37]Ex P1, pp 19, 22.
[38]Ex P1, p 22.
Activities of Daily Living
(m)she has difficulty doing household chores such as ironing and cleaning. She has difficulty with personal hygiene and with dressing because of the weakness in her right hand. She needs assistance with cooking, ironing and bed-making;[39]
(n)in late March 2017, the plaintiff fell at home when assisting her husband to clean the shower screen. She landed on her left side and injured her left hip;[40]
(o)she always had an interest in netball, both playing and coaching. She is now restricted in what she can do.[41] But for her injury she believes that she would still be coaching one of the junior netball teams.[42] She has tried some kayaking, as the physiotherapist suggested that it may assist her recovery.[43] She no longer does this as it was too difficult to carry, handle and manage the kayak;[44]
(p)prior to her injury, the plaintiff loved swimming at the pool and at the beach. She is now limited to breast stroke. Things like fishing and boating are difficult for her;[45]
(q)the plaintiff does not entertain as much because of the problems that she has with cooking;[46]
(r)she has difficulty driving for prolonged periods due to shoulder and hand pain;[47]
(s)she travelled overseas twice in 2018. She had to be careful with her luggage. Both trips were cruises which she can cope with “as I am able to sit back, relax and do what I can within my limitations;”[48]
[39]Ex P1, p 19.
[40]Ex P1, p 18.
[41]Ex P1, p 19.
[42]Ex P1, p 22.
[43]Ex P1, p 19.
[44]Ex P1, p 22.
[45]Ex P1, p 19.
[46]Ex P1, p 19.
[47]Ex P1, p 19.
[48]Ex P1, p 22.
Loss of earning capacity
(t)in late October 2015, the plaintiff was made redundant, together with a large number of her co-workers. Many of her co-workers had arranged new employment with other patient transport services, especially National Patient Transport Service;[49]
(u)given her experience, and the quality of her work, the plaintiff believes that she would have obtained such employment, but for her injury. Alternatively, she had made enquiries with Ambulance Victoria to perform non-emergency ambulance transfers, working out of Bairnsdale. She believes that she could have earned up to $70,000 gross per annum doing that work, as she would have been able to work longer hours, being closer to home;[50]
(v)the plaintiff had always intended working up until her late sixties. Apart from her shoulder injury, she was otherwise fit and well.[51] But for her injuries she would still be working as a patient transport or ambulance officer;[52]
(w)in early 2017, it was suggested that the plaintiff attempt to return to part-time light duties. The rehabilitation agency, on her behalf, applied for a number of jobs. Realistically, she did not think she was capable of working in those jobs. For example the jobs applied for included working as an integration aide, which would involve manual handling to assist children with disabilities, and customer service work at a supermarket, which would involve pushing and pulling products and lifting bags;[53]
(x)the plaintiff’s weekly WorkCover payments were stopped in 2018. She is now in receipt of a Newstart payment. The plaintiff thinks that the chances of her finding work are “minimal” given the ongoing consequences which she experiences in her right shoulder, arm and hand;[54]
(y)in 2018, she was doing fifteen hours of volunteer work per week in order to qualify for the Newstart payment. This work involved her spending five hours per week at a four-year-old kindergarten, five hours per week at the Tourist Information Bureau talking to tourists, and five hours per week at the Senior Citizen’s Club where she assisted in preparing meals;[55]
(z)she has reduced the hours that she volunteers and now only does 5 hours per week at the Senior Citizen’s Club. She stopped volunteering at the kindergarten because she “was not of much use.” It was for similar reasons that she stopped volunteering at the Tourist Bureau;[56]
(aa)her right shoulder and arm fatigue quickly with any activity. At best she believes that she could only work part-time on very reduced hours.[57]
[49]Ex P1, p 15-16.
[50]Ex P1, p 16.
[51]Ex P1, p 16.
[52]Ex P1, p 21-22.
[53]Ex P1, pp 17-18.
[54]Ex P1, p 18.
[55]Ex P1, p 18.
[56]Ex P1, p 21.
[57]Ex P1, p 22.
33 Under cross-examination, the plaintiff gave the following evidence:
(a)prior to taking on her own hairdressing salon, she worked part time as an integration aide. She worked at the Emerald Secondary College, with students from Year 7 to Year 12, with a variety of disabilities. She loved that work;[58]
[58]T13-14.
(b)prior to sustaining her injury, in mid-2015 she was aware that the G4S contract would come to an end and had been looking around for other potential work. She had looked in the Bairnsdale and Lakes Entrance area, but had not been successful prior to the injury in obtaining any alternative employment;[59]
[59]T14-15.
(c)she is no longer applying for jobs because she is now in receipt of the Aged Pension and there is no requirement from the Department of Social Security for her to make applications for jobs;[60]
[60]T16, L14-19.
(d)she agreed that earlier this year she saw Dr Joseph Slesenger. She agreed that she had told him that she can walk for 15 kilometres, that she can stand without restriction, that she can climb up and down stairs, and that she can squat.[61] She agreed that she also told Dr Slesenger that she has difficulty typing for more than five minutes and has difficulty cutting food with her right hand. She has difficulty utilising cooking utensils and has adapted a toothbrush in order to clean her teeth.[62] She has no difficulty sitting;[63]
[61]T17, L8-16.
[62]T17, L17-30.
[63]T18, L1-3.
(e)she said that she did not think that she would be able to work as an integration aide now because she cannot assist the students in the way she would need to. For instance, she would have difficulty with cooking, woodworking, sewing or art classes. In addition to the difficulties with her shoulder and hand, she said that in this type of position, she would be assisting kids with disabilities, so “they could actually injure me.” She thought it would be unwise to put herself in that position;[64]
[64]T18, L4-16.
(f)she agreed that in 2018 she went overseas with her husband twice, the first time to Japan and the second time to Europe. Both of those trips involved a cruise. She said that she can cope with the cruising because “Somebody makes the bed, does the cooking, does the cleaning. I just enjoy myself;”[65]
[65]T19, L15-26.
(g)she agrees that she does continue to drive herself from time to time. She said that if she has to drive for any distance she gives herself a break;[66]
[66]T21, L8-11.
(h)in her work at the Gippsland Community Health Service Centre, she can start anytime between 9.00am and 10.30am. She said that she can “leave or start whenever I want”.[67] She said “it’s volunteer [work], but I enjoy doing it. I volunteer because it’s good for my brain to get out of the house … If I sit and talk to these elderly people, then it’s very nice. They have a lot to give and a lot to offer. So we play little memory games with them…;”[68]
[67]T22, L3.
[68]T22, L3-8.
(i)her home in Lake Tyers Beach is a small three-bedroom home. She said that it has a “very small garden in the front and a vegetable garden in the back that I enjoy - I do … some work in the vegetable garden;”[69]
[69]T23, L11-16.
(j)she said that when she goes shopping she can “push the trolley, I can pick up small things off the shelves”. She said that she can do little things, but cannot do anything big, and her arm tires very fast. She said that she cannot lift her arm up too high as it hurts;[70]
[70]T23, L18-24.
(k)she said that her arm hurts, is weak and does not work very well. When she has to extend her arm out, it only goes a certain way which is “a bit of a nuisance”. She said that she had a scarf on in Court because when her arm gets cold, it aches. She said that when her hand gets cold she cannot make a proper fist and has no grip, so that she has to be very careful when she picks things up, for instance, a cup of coffee;[71]
[71]T23-24.
(l)she said that she wanted to work “until I couldn't work anymore.”[72] She said that she enjoyed her job and intended to work “as long as I could in the industry.”[73] When asked how old the oldest worker was doing the work that she had been doing, she said that there are “still people working there that are about 73, 74”;[74]
[72]T25, L5-6.
[73]T25, L7.
[74]T25, L11-12.
(m)she was shown some film of activities she undertook on an outing to Bairnsdale, where she attended Centrelink, had lunch, and then went to Bunnings to buy “some annuals to put in my garden.”[75] When asked about those activities, she said that she has no trouble pushing a trolley. She pointed out that the pot plants were small pot plants and not very heavy. She said that “whatever was in that bag [that she was carrying in the film] obviously wasn't very heavy either because it was just in a little bag.”[76] She said that if an item is under a kilo and a half, she is fine with it. She said she cannot carry such an item for long, and pointed out that she had swapped the bag from her right hand fairly quickly into her left hand when she was walking along.[77] She also said that she carries a backpack: “It's a little backpack … And my physio has recommended that that's what I use … because it doesn't impact on my shoulder so much;”[78]
[75]T27, L13-14.
[76]T27, L29-31.
[77]T27-28.
[78]T28, L10-14.
(n)she said, in relation to using her right arm, “I can use it. Anything that's down low, I can do. I can't do anything very well going up high, it doesn't work. But I can get on my hands and knees and I can weed the garden for 15, 20 minutes;”[79]
(o)when asked about her work capacity, the plaintiff said “I'm not totally useless, but I don't think anybody would want to pay me to work, because it would probably take all day to do nothing;”[80]
(p)she was specifically asked about particular jobs, namely, working as a beauty salon manager, a receptionist, a door greeter and a shop assistant. In respect of the work as a beauty salon manager, the plaintiff said “It depends. If it's computer based and it's assisting clients in and out of chairs, which is what I would have done when … I had my salon, no, I couldn't do that.[81] In respect of working as a receptionist, the plaintiff said: “if it's anything that is repetitive or using a computer or anything like that, I really can't do it for very long;”[82]
(q)in respect of working as a shop assistant, the plaintiff said:
“… I can't do that, because if you work in … the retail industry, I can't fold the clothes and then put them back up on the shelf, or make them nice and tidy. Or you know, hang clothes up … I can't do that. I've had to change all of my own household for all my linen now. I have to roll and put [it] in the cupboard because if I try and put it in flat, I can't do it … So I've had to adapt. So I don't think shops would want their clothes all rolled up and put in the shelving;”[83]
(r)the plaintiff was not cross-examined in respect of the proposed work as a door greeter or as a mystery shopper.
[79]T30, L21-25.
[80]T30, L27-30.
[81]T29, L7-10.
[82]T29, L13-15.
[83]T31, L1-10.
The medical evidence
34 There were numerous medical reports contained in the tendered material.
35 Both sides filed reports from medico-legal experts. A precis of the relevant medical material is set out below.
The Plaintiff’s medical evidence
36 Dr Hiew Tran, the plaintiff’s general practitioner, provided a report dated 18 May 2017. In that report, Dr Tran confirmed the existence of the plaintiff’s right shoulder and arm injury as reported by the plaintiff, stating that her diagnosis is a “full thickness tear of her right supraspinatus muscle”.[84] Dr Tran thought that the plaintiff was unlikely to improve at that time, stating “She is over a year from her most recent surgery and she has yet to get pre-injury function.”[85] Dr Tran thought that the plaintiff’s current capacity for pre-injury work was restricted due to the restriction of activities using her right shoulder. He thought that she still did have capacity for other employment. He noted that she is “unable to lift her right arm overhead and does have weight restrictions.”[86]
[84]Ex P1, p 41.
[85]Ex P1, p 41.
[86]Ex P1, p 41.
37 In a report dated 15 May 2017, Mr Parivesh Kumar, physiotherapist, diagnosed the plaintiff as suffering from “Rotator cuff tear, decompression surgery + repair and revision repair, currently stiff and weak right shoulder.”[87] Mr Kumar recommended that the plaintiff avoid heavy manual tasks/lifting, and thought therefore, that she would not be suitable to return to “pre-injury duties in patient transport at this stage.”[88] Mr Kumar was of the view that the plaintiff could participate in light activities or work that excludes heavy lifting and “above shoulder height tasks.”[89] He said that the plaintiff is right-hand dominant and having issues with her right hand and fingers leaves her weak in gripping actions, as well as persistent pain after repetitive use of her right side. He thought that the plaintiff would require a return-to-work consultation for any future employment options to establish what roles she could perform in a light duty capacity, given ongoing symptoms which were still being experienced by her in her right shoulder, hand and fingers.[90]
[87]Ex P1, p 42.
[88]Ex P1, p 43.
[89]Ex P1, p 43.
[90]Ex P1, p 43.
38 Ms Danielle Thomson, occupational therapist, provided a report dated 26 May 2017. Her diagnosis of the plaintiff’s injury was:
“Complications post 2nd surgery for right shoulder injury. After the 2nd surgery, Lynette wore an aeroplane splint with her right hand positioned over a ball shape for 8 weeks post operatively. When the splint was removed she was unable to move her hand/wrist or fingers freely due to oedema, stiffness and pain.”[91]
[91]Ex P1, pp 44-45.
39 In Ms Thomson’s view, the plaintiff was at “high risk for long term deterioration due to the nature of her injury and the post operative complications that continue to cause pain, swelling and restrict functional use of her upper body.”[92] She thought that the plaintiff was not physically able to return to her previous roles. She thought that the plaintiff would require a return-to-work program for any employment option, to establish what roles she could perform in a light duty capacity, given the significant ongoing symptoms which the plaintiff experiences in her right shoulder, hand and fingers. Based on her conversations with the plaintiff, she thought that “an administration or concierge position with infrequent right hand use may be worth investigating.”[93]
[92]Ex P1, p 45.
[93]Ex P1, p 47.
40 Dr Sale Useni, general practitioner, working at the Gippsland Lakes Community Health, provided a report dated 5 June 2019. He diagnosed the plaintiff as suffering from a “Right rotator cuff injury which included focal full thickness tear of the supraspinatus tendon, chronic [disruption] of [the] biceps belly and subacromial bursitis”.[94] Dr Useni observed that the plaintiff had undergone two surgeries and long periods of rehabilitation. He said that the plaintiff has a limited range of movement for active abduction and forward flexion of the right shoulder. He noted that there was reduced ability for internal and external rotation of the right shoulder. He said that the plaintiff has reduced grip strength in the right hand. He noted that this has limited her ability to drive for prolonged periods of time and to engage in activities that require strength or fine motor skills “like writing.” He also observed that the plaintiff had developed depression during the period, for which she was on treatment.[95]
[94]Ex P1, p 48.
[95]Ex P1, p 48.
41 Mr Thomas Kossmann, orthopaedic surgeon, provided a medico-legal report to the plaintiff’s solicitor, dated 15 February 2019. In that report, Mr Kossmann diagnosed the plaintiff as suffering from:
(a)failed right shoulder surgery for right shoulder rotator cuff pathology with full thickness tears of the supraspinatus and infraspinatus tendons, SLAP tear extending from the 11 to 2 o’clock position and degenerative glenohumeral joint changes; and
(b)degenerative acromioclavicular joint changes to the right shoulder joint.
42 Mr Kossmann could not exclude the possibility that the plaintiff may require a total shoulder replacement at some stage in her life. He was unable to say in what timeframe, if any, this may occur. He observed that the plaintiff suffers from significant movement restrictions in her right hand, which has affected all aspects of her life, including activities of daily living such as dressing, taking care of her hair, and taking care of the household chores, as well as the garden. He said that the plaintiff has broken a significant number of dishes and glasses, as she cannot hold onto these items. He considered that the plaintiff’s restriction, disability and incapacity derived from her injuries, will remain for the foreseeable future.[96] In Mr Kossman’s opinion, the plaintiff had no work capacity to return to her pre-injury work as a PTO. He doubted that she will ever be able to return to work in any physically-demanding work. Therefore, he believed that she remained 100 per cent incapacitated for employment. He did not believe that the plaintiff had any prospects of undergoing vocational rehabilitation.[97]
[96]Ex P1, p 58.
[97]Ex P1, p 57.
43 Dr Catherine Bones, consultant occupational physician, saw the plaintiff during 2019 in relation to her capacity for ongoing work. Dr Bones has provided three reports to the Court, dated 25 February 2019, 27 March 2019 and 19 June 2019. In Dr Bones’ opinion, the plaintiff does not have capacity for her pre-injury employment. Generally, Dr Bones considered that the plaintiff’s physical capacity ought be limited to part-time employment with the following modifications:
(a)avoidance of repetitive, jarring or forceful use of the upper-right limb and shoulder;
(b) avoidance of the use of the right arm at or above shoulder height;
(c)avoidance of sustained or repetitive forward reaching in front of the body with the upper right limb;
(d)maximum weight lift of 2 kilograms at waist height only;
(e)avoidance of prolonged driving; and
(f)work limited to 12 hours per week, with the above restrictions.
The Defendant’s medical reports
44 Dr Graeme Doig, orthopaedic and trauma surgeon, examined the plaintiff for medico-legal purposes on behalf of the defendant. Dr Doig provided five reports, the two most recent of which are dated 17 January 2019 and 17 April 2019. In the report dated 17 January 2019, Dr Doig diagnosed the plaintiff as suffering from a “rotator cuff tear at the dominant right shoulder.”[98] Dr Doig thought the prognosis for the plaintiff’s right shoulder “must be guarded.”[99] He thought that the plaintiff should be subject to restrictions involving no more than 5 kilograms in lifting, pushing, pulling at or below waist height with the right arm. He noted that she has problems using the right arm overhead. He noted that the plaintiff requires breaks from long-distance driving.
[98]Ex D1, p 25.
[99]Ex D1, p 25.
45 Dr Doig was of the opinion that the plaintiff does have a current work capacity, but not for pre-injury employment. He thought that she did have a capacity for suitable employment with the restrictions outlined above. He said that “In view of her time out of the workforce, restricted hours initially would be advisable, perhaps 4 hours per day, 3 days per week with alternate days off to recover and upgrade the hours as tolerated.”[100]
[100]Ex D1, p 26.
46 Dr Joseph Slesenger, specialist occupational physician, examined the plaintiff for medico-legal purposes on behalf of the defendant on 18 February 2019. He diagnosed the plaintiff as suffering from:
(a)right shoulder soft-tissue injury;
(b)rotator cuff tear, for which the plaintiff underwent a repair in the form of right shoulder open subacromial decompression and rotator cuff repair;
(c)subsequent re-tearing, for which she underwent further repair; and
(d)residual right shoulder pain and dysfunction.[101]
[101]Ex D1, p 67.
47 Dr Slesenger was of the opinion that the plaintiff was likely to have residual pain and dysfunction in the right shoulder. He also said that there was a risk of her developing degeneration of the right shoulder and this should be addressed by an expert in the relevant field.[102] He was of the opinion that based on the right shoulder impairment, the plaintiff retained a capacity for work with the following restrictions, namely:
[102]Ex D1, p 67.
(a) no push, pull, carry or lift over 5 kilograms;
(b) no sustained forward reaching;
(c) no over-shoulder reaching;
(d) no repetitive shoulder tasks;
(e) no forceful gripping; and
(f) no prolonged typing.
48 Dr Slesenger was of the opinion that the plaintiff could return to work six hours a day, five days per week.
Expert evidence in relation to suitable employment
49 A Vocational Assessment Report from AMS Consulting Group Australia was provided by Mr Nicholas Janides, a Vocational and Occupational Rehabilitation Consultant, on behalf of the defendant, dated 22 February 2019. That report identified four jobs that were said to constitute “suitable employment” for the purposes of the Act, namely: door greeter, shopping centre concierge, mystery shopper and information desk clerk.[103]
[103]Ex D1, pp 93-105
50 There was no information provided by the defendant in relation to an applicable hourly rate for part time work during the week as a door greeter.[104] The weekly wage figures set out in the report began at a “Level 4” rate.[105] No reason was given for commencing the analysis of the applicable weekly wage for this job at a Level 4 rate, rather than any other applicable rate. I note that there were no roles of any description (either part-time, full-time or casual) for this job type offered within a 10km radius of the plaintiff’s home address.[106]
[104]Ex D1, p 98. Note, hourly rates were provided only for weekend work.
[105]Ex D1, p 98.
[106]Ex D1, p 99.
51 The applicable hourly rate for a shopping centre concierge was said to range from $22.38 to $29.80 per hour.[107] No information was provided upon which the Court could discern at which end of this range the plaintiff might be paid upon commencing such a role. I note that there were no roles of any description (either part-time, full-time or casual) for this job type offered within a 10km radius of the plaintiff’s home address.[108]
[107]Ex D1, p 99.
[108]Ex D1, p 100.
52 There was no applicable hourly rate said by the defendant to exist for a Mystery Shopper, as the payment is made per assignment.[109] I note that there were no roles for this job type offered within a 10km radius of the plaintiff’s home address.[110]
[109]Ex D1, p 100.
[110]Ex D1, p 100.
53 The applicable hourly rate for an Information Desk Clerk was said to range from $21.00 to $26.08 per hour.[111] No information was provided upon which the Court could discern at which end of this range the plaintiff might be paid upon commencing such a role. I note that there were no roles of any description (either part-time, full-time or casual) for this job type offered within a 10km radius of the plaintiff’s home address.[112]
[111]Ex D1, p 103.
[112]Ex D1, p 103.
54 Dr Catherine Bones, consultant occupational physician, saw the plaintiff during 2019 in relation to her capacity for suitable employment. Having considered the report from AMS Vocational Assessment, Dr Bones was of the opinion that the four jobs identified as potentially constituting “suitable employment” for the plaintiff, did involve duties that were suitable for the plaintiff to engage in, subject to a limitation of performing no more than 12 hours per week in any of these roles.[113]
[113]Ex P1, pp 65-71.
55 An expert report dated 19 June 2019 was provided on behalf of the plaintiff by Ms Katherine Rintoule of Flexi Personnel. That report addressed the hourly rate at which a person could expect be paid in the first year of performing each of the jobs that had been identified as constituting “suitable employment.” The hourly rates set out in Ms Rintoule’s report were based on the applicable Industry Award for each type of job. Ms Rintoule was not required to attend for cross examination.
56 The applicable rates were as follows:
(a) Door Greeter: $20.79 gross per hour;[114]
[114]Ex P1, p 72.
(b) Shopping Centre Concierge: $20.79 gross per hour;[115]
(c) Information Desk Clerk: $20.12 gross per hour;[116] and
(d) Mystery Shopper: $20.12 gross per hour.[117]
[115]Ex P1, p 72.
[116]Ex P1, p 72.
[117]Ex P1, p 72.
57 In assessing the applicable rates of pay for each of the roles that are said to constitute “suitable employment” for the plaintiff, I prefer the evidence provided in the report of Ms Rintoule, since it specifically addresses what the award rate of hourly pay would be for a person commencing in the first year of performing those roles. Given the plaintiff’s lack of previous experience and skill in each of these roles, I find on the balance of probabilities, that the plaintiff would commence on a salary commensurate with the figures provided by Ms Rintoule.
The issues
The Plaintiff’s credit
58 No serious attempt was made to discredit the plaintiff during cross-examination. While the plaintiff was shown film of her activities in Bairnsdale in January 2019, at no stage was it suggested by counsel for the defendant that she was engaging in activities which she had said that she was unable to do. My observation of the plaintiff was that she demonstrated the same restrictions on the video clips as she had deposed to in her evidence and her affidavits.
59 Having had the benefit of observing the plaintiff while she was giving evidence to the Court, I formed the view that she was a cooperative witness who appeared to be doing her best to give accurate responses to the questions asked of her. During cross-examination, she gave her evidence openly and without embellishment. She made concessions where necessary.
60 Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period in which she has seen her treating medical practitioners, consulted with the medico-legal assessors, and provided evidence to this Court.
61 After a consideration of all the evidence, particularly the evidence of the plaintiff, I consider that she was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that she was attempting to mislead the Court or exaggerate her symptoms.
Stoic Plaintiff
62 I also formed the view that the plaintiff is extremely stoic in relation to her condition. An analysis of the evidence demonstrates that she has suffered constant pain suffered since 2015, and has endured extensive medical treatment which has caused her additional pain and disability. Despite this, I find that she has continued trying to contribute to society by way of volunteer work and to undertake domestic activities, albeit in a modified manner, even though she is often unable to avoid activities which cause her pain.
Compensable injury
63 The details and occurrence of the injury are not in dispute.
64 Having considered all of the medical evidence from the plaintiff’s treating doctors as well as the medico-legal experts on both sides, I am satisfied that as a result of the accident, the plaintiff suffers from the consequences of a right sided soft tissue injury to her shoulder, in the form of a rotator cuff tear for which she underwent surgery in the form of a right shoulder open subacromial decompression and rotator cuff repair.
65 It is not disputed that this injury is organic in nature.
Is the compensable injury permanent for the purposes of the Act?
66 Having considered the relevant reports, in particular the reports from Dr Tran,[118] Mr Kossman,[119] Dr Doig[120] and Dr Slesenger,[121] I find that the plaintiff is likely to suffer from the injury she sustained in the accident, for the foreseeable future. Given this, I find that this injury is permanent for the purposes of the Act.
[118]Ex P1, p 41.
[119]Ex P1, p 58.
[120]Ex D1, p 25.
[121]Ex D1, p 67.
Conclusions as to economic loss
67 It was agreed as between the parties that 60% the plaintiff’s pre-injury earning capacity was $34,298, or $659.58 per week.
68 The weight of the medical evidence satisfies me that as a result of the injury she sustained in the accident, the plaintiff’s residual work capacity is presently no more than 12 hours per week. I note the opinion from Dr Slesenger that the plaintiff has a residual capacity for work with restrictions of 6 hours, 5 days per week. This assessment of the plaintiff’s capacity to work suggests that she could work almost full time, albeit with restrictions. I find that this opinion is at odds with the weight of the medical evidence, which is to the effect that the plaintiff has a capacity for light duties and only restricted hours. I note that Dr Doig for the defendant is in agreement with Dr Bones for the plaintiff, that the plaintiff’s capacity for work at this time is about 12 hours per week. Dr Doig went further than Dr Bones and suggested that the plaintiff have “alternate days off to recover…” In those circumstances, I reject Mr Slesenger’s opinion as to the plaintiff’s residual work capacity and accept the opinions expressed by Drs Bones and Doig.
69 Based on the applicable rates of earning for each of the four jobs which were said to constitute “suitable employment”, assuming the plaintiff can work for 12 hours per week, she would not earn more than $250.00 per week. This figure is well below the figure of $659.58 per week, being an amount that most fairly reflects 60% of the plaintiff’s pre-injury earnings.
70 I am also required to consider issues of retraining and rehabilitation pursuant to s325(g) of the Act.
71 In light of my findings:
(a) as to the extent of the consequences of the plaintiff’s injury to her right shoulder;
(b) that the plaintiff’s prognosis is best expressed as being “guarded;”
(c) that there is a risk of further deterioration in the plaintiff’s right shoulder condition; and
(d) that the plaintiff presently has only a limited capacity for suitable employment
I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the fact 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 s325(g) of the Act.
Conclusion
72 Accordingly, pursuant to s335 of the Act, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity in respect of the injury that she suffered to her right shoulder on 12 June 2015.
73 I will hear the parties on the question of costs.
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