Black v ISS Hygiene Services Pty Ltd (Revised)
[2012] VCC 1962
•14 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04350
| BRIAN BLACK | Plaintiff |
| v | |
| ISS HYGIENE SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 November 2012 | |
DATE OF JUDGMENT: | 14 December 2012 | |
CASE MAY BE CITED AS: | Black v ISS Hygiene Services Pty Ltd (Revised) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1962 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the left shoulder – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd v Podolak & Ors (2005) 14 VR 622
Judgment: Leave granted to bring proceedings for pain and suffering. Application in relation to loss of earning capacity dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with Ms M Bylhouwera | Zaparas Lawyers |
| For the Defendant | Ms M Britbart | Wisewould Mahony |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant, in particular on 5 December 2006 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the left shoulder.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, sub-s(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By sub-section (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
9 I 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.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
11 Sub-sections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Sub-section (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
13 Sub-section (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 in reaching my conclusions.
15 The defendant concedes the plaintiff suffered an injury to his left shoulder on or about 5 December 2006, but does not concede that such injury meets the requirements of sub-paragraph (a) of the definition of “serious injury” referred to above.
Compensable Physical Injury
16 It is common ground that a compensable injury occurred in the course of the plaintiff’s employment as truck driver and washroom services technician, and in particular, on 5 December 2006, when he lifted a heavy nappy bin to load it onto a trolley, he felt a click and sharp pain in the left shoulder.
17 The injury has been identified as an aggravation of the supraspinatus or rotator cuff tendon, described as tendinopathy or tendinosis, which in turn has resulted in a subacromial impingement syndrome. Further, or alternatively, there is a subacromial and subdeltoid bursitis and infusion of the left head of the biceps. Further, or alternatively, there is a tear of the infraspinatus tendon with or without a level of aggravation of the acromioclavicular joint arthritis.
18 It is common ground that the injury has caused left shoulder pain and limitation of movement, and it has fluctuated in severity.
19 It is further common ground that the plaintiff has suffered from a psychiatric state, both before and after the physical injury. There is no claim for this state in this proceeding, either by way of initiation or aggravation.
20 The plaintiff had suffered pain to both shoulders at various times prior to the subject injury. However, prior to 5 December 2006, he was in full-time employment and had no appreciable time off work in the years preceding the injury.
21 Following the episode on 5 December 2006, he was off work until 2 April 2007. Thereafter, he returned to work essentially on light duties but suffered a number of aggravations to the left shoulder, resulting in periods off work. He last returned to work with the defendant on 1 October 2007 and, by 11 October 2007, he decided to resign the employment.
22 In November 2007, he obtained alternative employment as a forklift driver with an organisation called Lindsay Brothers. He had obtained a forklift licence some years prior to being employed with the defendant. He remained in this employment for some eighteen months. Apart from driving a forklift, he had to regularly do some manual handlings of boxes and items. He said he enjoyed the work and he earned much more money in this employment. However, he said he was struggling with left shoulder pain and he was assisted with the paperwork involved in the job by his brother, who was also employed with this organisation. The plaintiff himself is largely illiterate.
23 The plaintiff remained in this employment until April 2009 and thereafter, received a part disability pension.
24 According to the treating general practitioner, Dr Kabourakis, before and after his left shoulder injury, the plaintiff had been dealing with severe Depression with psychotic features and suicidal attempts.[1] Prior to the injury, he had been reviewed by Psychiatry in Emergency at his local hospital and was referred to counselling and Pine Lodge Psychiatric Facility. He had been on medication of multiple varieties over the years. He had told his general practitioner he could not recall any period of his life where he felt happy for a few days in a row. While under the care of a psychiatrist, Dr Hogan, in or about 2004, he had started with heavier drinking to try and forget his problems. He tried cutting his wrists and on occasions the police and CAT were involved. By March 2006, he had lowered mood, and panic attacks had reappeared. He also had some suicidal ideations. He was amotivated, lay around the house when he was at home, and was generally not happy at work. It was at around March 2006 that he was placed again on anti-depressants and started to feel significantly better.[2]
[1]Exhibit A, page 44
[2]Exhibit A, page 45
25 In 2007, the plaintiff was referred to orthopaedic surgeon, Mr Patrick Byrne. Mr Byrne made a diagnosis of left subacromial impingement and left rotator cuff tendinopathy. He offered the plaintiff an arthroscopic subacromial decompression operation. This offer was declined on the basis that a guarantee could not be given of improvement. When last seen on 24 October 2007, he was advised to return to normal duties at work to see if he could cope.
26 The general practitioner also referred the plaintiff to another orthopaedic surgeon, Mr Douglas Li, in 2007. He recommended surgery and referred him back to Mr Byrne as the best possible person to perform the procedure.
27 It would appear that there was no other specialist referral for the left shoulder injury thereafter.
28 As previously stated, the plaintiff commenced an alternative job as a fork lift driver in late 2007. According to his general practitioner, he definitely improved mentally. He felt the job was relatively stress-free and it did not aggravate his shoulder “too much”. He worked more hours, including overtime. Money became more available. He managed to lose some weight and he was taking his antidepressants.[3]
[3]Exhibit A, page 46
29 Unfortunately, the general practitioner reported that by June 2008, the plaintiff “had gone backwards”. He had not taken his medication for four months. He had done this because he felt good and did not feel he needed to take anything. He was working, was kept occupied and felt that his overall mental state was good enough that he could deal with it on his own without the help of medicines.
“His mood started to drop. He started drinking more again. He drank more and more to the point where it became his main priority for the day.”[4]
[4]Exhibit A, page 46
30 Dr Kabourakis reported that the plaintiff found his mood was more volatile if he did not drink, and found the drinking calmed him down.
“Ultimately this proved to be a failed concept as it so often does.”[5]
[5]Exhibit A, page 46
31 At this point he attempted self harm by cutting his forearms and was taken to Emergency at his local hospital, where he was eventually calmed down and sent back home. The plaintiff was adamant he would not stop drinking completely and the general practitioner compromised in this regard.
32 By July 2008, the plaintiff complained of hearing voices behind him. He reported enjoying the process of cutting himself and, on more than one occasion, his children found him in the garage covered in blood from such activities. His cutting seems related to periods of drinking alcohol, which he refused to cease.[6]
[6]Exhibit A, page 47
33 The plaintiff was admitted to hospital as an involuntary patient in March 2009. He had locked himself in his garage and had smashed his beloved car with a sledge hammer. He was also cutting himself and had expressed to the police that he wanted to kill himself. He was treated at this time with anti-depressants, anti-psychotics and an alcohol withdrawal program. He recommenced seeing a psychiatrist, Dr Lowey, and a psychologist. Unfortunately, he was shortly thereafter sacked by his employer as being unable to attend at work.
34 Dr Kabourakis reported that the rest of 2009 was spent with poor motivation, difficulty getting much done, not going out much at all and minimal socialising outside his immediate family. He had to be pushed to attend the psychologist appointments and although he took his medications, he reported erratic sleep.
35 In early 2010, Dr Kabourakis diagnosed the plaintiff with diabetes. He stated that this was a result of gaining weight, past alcohol abuse, poor diet and lack of activity.[7]
[7]Exhibit A, page 47
36 As at October 2010, Dr Kabourakis reported that the plaintiff’s mood was fairly under control. He did have some lowered mood and poor concentration. He occupied himself with taking care of his birds, dabbling with restoring the car that he had smashed “when he feels up to it and his shoulder is not bothering him too much”.[8] At that stage, he was finding it difficult to sleep with early morning waking, then difficulty falling asleep again. (It was not asserted that this was because of left shoulder pain).[9] As at October 2010, it was said that his current mix of medications and regular reviews seemed to be keeping him under reasonable control. Dr Kabourakis reported that the shoulder problem:
“… although present, has not been too onerous. He lives within his restrictions and avoids doing too much that can aggravate it. Unfortunately that also means he cannot spend too much time doing the one thing he loves which is restoring cars. This does irritate and frustrate him but I feel he has learnt to accept this limitation better than previous years which has helped his mental state. He is dabbling around the house though getting things done slowly, like building a fish pond and tending to his birds.”[10]
[8]Exhibit A, page 47
[9]Exhibit A, page 48
[10]Exhibit A, pages 48 and 49
37 Further, Dr Kabourakis considered that the plaintiff was unfit for any gainful employment because of his volatile mental health, combined with his physical limitations.[11]
[11]Exhibit A, page 49
38 In his updated report of 25 July 2012, Dr Kabourakis stated the plaintiff had, on a number of occasions, mentioned his ongoing left-sided shoulder and upper limb problems. Apparently he:
“… has had issues with ongoing pain, weakness in the left hand grip with intermittent dropping of items and he cannot reach above shoulder height due to pain.”[12]
[12]Exhibit A, page 59
39 Further:
“He is taking appropriate psychiatric medications which control his mood but it would appear that he has is not taking any medication with respect to the shoulder.”
40 He further recorded:
“He does get pain but he is not completely incapacitated all the time. He can function around the house and do some minor manual work when he can.”[13]
[13]Exhibit A, page 59
41 In terms of employability, Dr Kabourakis considered that the plaintiff cannot use his left arm for any meaningful or productive length of time. He considers he would be off work too often and could only ever perform limited duties.[14] In terms of future treatment for the shoulder, he stated:
“He will also need to take care of his left shoulder and upper limb and will require intermittent intervention in the future when it flares … with respect to his shoulder I feel he has a chronic problem that is not fixable but is manageable. When used the problems flare so long term issues will remain ever present.”[15]
[14]Exhibit A, page 60
[15]Exhibit A, page 60
Loss of Earning Capacity Consequences
42 Given that the plaintiff was able to work as a forklift driver for some eighteen months prior to ceasing employment with Lindsay Brothers, and given that he enjoyed the work to the extent that he was able to work overtime and earn higher sums of money until he stopped taking his psychiatric medication in or about the middle of 2008, and given that his employment thereat was terminated following his hospitalisation for psychiatric reasons in March of 2009, I am not able to discern from Dr Kabourakis’s evidence that the plaintiff would be unable to perform such a job at the date of hearing, based solely on the physical consequences of the left shoulder injury.[16]
[16]See s134AB(h) of the Act
43 The plaintiff’s instructing solicitors had him examined by orthopaedic surgeon, Mr Justin Hunt, on 25 October 2010 and 2 October 2012.[17] Unfortunately, Mr Hunt took a history on both occasions that the plaintiff was unable to continue working after his injury on 5 December 2006. On neither occasion does he have a history that the plaintiff was able to perform work as a forklift driver in the manner and for the period described above. Accordingly, when he gave his opinion on this occasion, that it was unlikely that the plaintiff would be able to perform any alternate duties due to the ongoing disabling nature of the pain in his left shoulder, that opinion is based on a false premise.[18]
[17]Exhibit G
[18]Exhibit G, page 80
44 In his second report, Mr Hunt took a history that the plaintiff returned to his employer, ISS Hygiene Services Pty Ltd (“ISS”) in approximately December 2007 performing restricted work. This ceased, however, in December 2009 when he was terminated. He then recorded the plaintiff had not worked since that time. This history is, of course, more accurate but apart from not identifying the correct employer, which in itself is not that significant, he failed to outline the nature of the duties that the plaintiff was able to perform as a forklift driver in the relevant eighteen-month period.
45 The plaintiff has been examined on behalf of the defendant by orthopaedic surgeons, Mr Michael Dooley and Mr Rodney Simm. Mr Dooley saw the plaintiff in August 2011 and October 2012.[19] Mr Simm saw the plaintiff in August 2012 and October 2012.[20] Mr Dooley did not have a history of the interaction of the shoulder injury with the psychiatric condition as outlined above, however, he considered that the injury in December 2006 aggravated an underlying degenerative rotator cuff disease of the left shoulder.
[19]Exhibit 1
[20]Exhibit 2
46 Clinical examination revealed a restriction of motion of the left shoulder greater than one would expect to see for the underlying condition and for any aggravation of it. In his view, the plaintiff’s psychiatric condition, that is his depression/anxiety, was playing a part in his ongoing symptomatology and was a significant ongoing factor in his presentation. Further, he believed that the restriction of shoulder motion and inability to have the shoulder move passively was, in his view, related to his psychological condition rather than to his physical condition. However, he considered, as a consequence of injury to the left shoulder, he would not be able to carry out heavy physical work or work that involved a lot of activity at and above shoulder level. He believed he would have the physical capacity to work as a forklift driver.[21]
[21]Exhibit 1, page 7
47 Mr Simm, in his latest report dated 29 October 2012, essentially agreed with Mr Hunt’s findings and diagnosis. However, where Mr Hunt stated that it was unlikely the plaintiff would be able to return to any alternate work duties due to the unremitting pain in his left upper limb, Mr Simm took a different view. This was based on the fact that the plaintiff was able to work with the defendant until November 2007 and then work as a forklift driver until April 2009. He agreed, however, that he should avoid repetitive work with the left upper limb, in particular avoid lifting and overhead reaching.[22]
[22]Exhibit 2, page 40
48 In my view, the plaintiff’s ability to work as a forklift driver including associated manual handling activities during the eighteen-month period from November 2007 to March or April 2009 is most telling in regard to discharging the onus of proof with respect to loss of earning capacity. I find that he has failed to discharge that onus.
Pain and Suffering Consequences of the Left Shoulder Injury
49 Prior to injuring his left shoulder in December 2006, the plaintiff was suffering from an underlying mental illness, the nature of which is described above. Apparently he was not happy in the job prior to December 2006, but this was probably a function of his underlying mental disorder. In any event, the injury rendered him partially incapacitated for the duties associated with that job, so that he never returned to the full duties prior to resigning in or about October 2007.
50 The job as forklift driver with Lindsay Brothers provided him not only with extra income, but also a means of ameliorating his underlying psychological condition. Although his employment thereat was terminated not as a result of the shoulder injury, the ongoing pain and restriction of the left shoulder injury has made him less able to cope with the consequences of his underlying medical condition. He is frustrated at not being able to perform physically in the manner that he was enabled prior to the injury.
51 Although not taking any current medication for pain relief, I accept that he is permanently restricted physically in the way described by Mr Simm and Mr Dooley on behalf of the defendant in this case.
52 The physical consequences of this injury have clearly reduced the plaintiff’s opportunities for physical employment, although not establishing the 40 per cent loss of earning capacity in this case. The loss of the ability to perform worthwhile work has impacted upon his pre-existing psyche in such a way that it is a particularly serious consequence for him, when viewed objectively.
53 Both the treating surgeons in 2007 recommended that he undergo surgery but accepted that his refusal of same was reasonable.
54 The physical limitations resulting from the left shoulder injury are particularly significant for this plaintiff in obtaining any alternative duties because of his underlying illiteracy.
Conclusion
55 In my view, the pain and suffering consequences to the plaintiff pursuant to the injury are more than “significant” or “marked” and are “at least very considerable” in comparison with other cases in the range of possible impairments.
56 Leave will be granted accordingly.
57 I will hear the parties on the question of costs.
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