Bodiyabaduge v Victorian WorkCover Authority
[2025] VCC 2
•24 January 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-00197
| NIROSHA BODIYABADUGE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 August 2024 | |
DATE OF JUDGMENT: | 24 January 2025 | |
CASE MAY BE CITED AS: | Bodiyabaduge v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 2 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering – loss of earning capacity – impairment to the function of the right arm – right shoulder and right elbow – impairment to the function of the left arm – left elbow – reliability
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Victorian WorkCover Authority v Brassington [2021] VSCA 236; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Popal v Transport Accident Commission [2023] VSCA 222; Johns v Oaktech Pty Ltd [2020] VSCA 10; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Richter v Driscoll [2016] VSCA 142; Akbari v Victorian Workcover Authority [2022] VSC 84; Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120.
Judgment: Application for leave to commence common law proceedings for loss of earning capacity damages and pain and suffering damages in relation to the right arm granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett KC with Mr Y-C Chen | Maxiom Law |
| For the Defendant | Ms S De Guio | IDP Lawyers |
HER HONOUR:
1Ms Nirosha Bodiyabaduge, the plaintiff, is a 56-year-old woman who alleges that she injured her right shoulder and both elbows in the course of her employment as a Sterilisation Technician for Affinity Health Pty Ltd (“the employer”).
2The plaintiff seeks leave to issue proceedings claiming damages for pain and suffering and loss of earning capacity pursuant to paragraph (a) of the definition of “serious injury” within the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
3The plaintiff relies on impairment to the function of the right arm, incorporating right shoulder and right elbow injuries.[1] She alternatively relies on the left arm, specifically injury to the left elbow.
[1]Victorian WorkCover Authority v Brassington [2021] VSCA 236
4At the hearing, Mr J Brett KC and Mr Y C Chen of Counsel appeared on behalf of the plaintiff, and Ms S De Guio of Counsel appeared on behalf of the defendant, the Victorian Workcover Authority (“the VWA”).
The issues in dispute
5The legal principles are well known and were not in issue.
6In relation to her right arm injury:
· in her pain and suffering claim, she must establish, on the balance of probabilities, that the impairment consequences of her right arm injury, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being more than significant or marked, and as being at least very considerable (“the narrative test”).[2]
· in her claim for loss of earning capacity, she must establish:
(a) her loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable (“the narrative test”); and
(b) she has a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Act (the current “loss of earning capacity” threshold); and
(c) after the date of the hearing, she will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more as set out in s325(2)(e)(ii) of the Act (“permanent loss of earning capacity” threshold).
[2]See s325(2)(b) and s325(2)(c) of the Act
7In relation to her left arm injury:
· in her pain and suffering claim, she must establish, on the balance of probabilities, that the impairment consequences of her left arm injury, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being more than significant or marked, and as being at least very considerable (“the narrative test”).[3]
· in her claim for loss of earning capacity, she must establish:
(a) her loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable (“the narrative test”); and
(b) she has a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Act (the current “loss of earning capacity” threshold); and
(c) after the date of the hearing, she will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more as set out in s325(2)(e)(ii) of the Act (“permanent loss of earning capacity” threshold).
[3]See s325(2)(b) and s325(2)(c) of the Act
8In opening, Mr Brett KC said that the plaintiff’s focus was on the right arm. The left arm claim was not formally abandoned.
9The VWA did not dispute that the plaintiff suffered compensable injuries to her right shoulder or elbows.
10In opening, the VWA said that it did not concede the pain and suffering claim but said its focus was directed to the pecuniary loss claim. However, in closing submissions, the VWA submitted the plaintiff’s pain and suffering consequences do not meet the “narrative test”.
11In relation to the pecuniary loss claim, the VWA contended the plaintiff was currently capable of working in suitable employment as a Medical Receptionist, a Receptionist or an Information Officer (“the roles”). It submitted the wages for these roles were above the requisite threshold to establish loss of earning capacity.
12The VWA did not assert that the plaintiff had the capacity to return to work as a Sterilisation Technician.
13The plaintiff argued the roles were unsuitable. One of the main reasons was her lack of fluency in English.
14The VWA challenged the reliability of the plaintiff’s evidence about her English abilities.
15For the reasons that follow, I find that in relation to the pecuniary loss claim, the impairment consequences of the plaintiff’s right arm injury are “serious” and satisfy the narrative test and the tests in s325 (2)(e)(i) and (ii) of the Act.
16Therefore, in relation to the right arm claim, the plaintiff has established an entitlement to commence a proceeding for loss of earning capacity damages and, as a consequence, she also has leave to commence proceedings for pain and suffering damages.[4]
[4]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
17Having found that the plaintiff is successful in relation to the right arm claim, it is not necessary for the Court to determine her application relating to the left arm. I refer to aspects of that claim for context.
Background
18The following facts were not in dispute.
19The plaintiff was born in Sri Lanka where she completed secondary school and a Diploma in Computer Science.
20She is right-hand dominant.
21The plaintiff is married but separated. She resides at the same address as her estranged husband. She has twin sons aged 21 years old who currently live in South Australia where they are studying. The plaintiff said that she intended to move to South Australia in the future.[5]
[5]Transcript (“T”) 36, Line (“L”) 2-4
22In 2009, she left Sri Lanka and moved to Perth. She worked for 18 months in an office complex as a coffee supplier.
23Whilst in Perth, she completed a Certificate III Sterilisation Technician course. The course was conducted in English.
24The plaintiff successfully completed a one-month placement with the employer as part of the Certificate III course. She obtained full-time work as a Sterilisation Technician, in Western Australia, with the employer in May 2013.
25Subsequently, the plaintiff moved to Melbourne. In February 2015 she commenced full-time work as a Sterilisation Technician at the Warringal Private Hospital which was part of the employer’s network.
26At the Warringal Private Hospital, she usually worked 3 x 10-hour shifts and 1 x 8-hour shift. She occasionally worked 10-hour shifts on Saturdays. She worked in the decontamination area, usually at night. Her job involved sterilising and preparing equipment which she then placed into surgical packs to be used in a variety of upcoming surgical procedures. She often worked alone.
27In addition to her full-time work with the employer, on her days off she often completed casual work shifts at other hospitals through Kemp Recruitment. When doing this work, she generally worked with one other person. If she worked on Saturdays, she worked alone.
The hearing
28The hearing proceeded in the usual way.
29The plaintiff was the only witness called. She gave evidence through an interpreter. She was cross-examined.
30The plaintiff tendered:
· two Affidavits affirmed by her;
· a notice of impairment benefit liability, assessment and entitlement dated 29 August 2023;
· two reports from her treating general practitioner (“GP”), Dr Prabath Watapaldeniya, together with a letter of instruction from the plaintiff’s solicitors;
· reports from her treating orthopaedic surgeon, Dr Gayan Padmasekara;
· a bundle of radiology reports of various dates;
· reports from medico-legal practitioners Dr Robyn Horsley, Occupational Physician and Dr Clayton Thomas, Pain Physician;
· a summary of taxation returns.
31The VWA tendered:
· two reports from Dr Joseph Slesenger, Occupational Physician;
· a Medical Panel Reasons for Opinion dated 13 March 2024;
· vocational assessment reports;
· a selection of the plaintiff’s academic records;
· a report of the plaintiff’s treating physiotherapist, Mr Lachlan Robinson, with a letter of instruction from the plaintiff’s solicitors;
· the plaintiff’s Workbook from the Certificate III Sterilisation Technician course;
· documents relating to various courses undertaken by the plaintiff;
· a worker’s injury claim form and a worker’s claim for impairment benefit form;
· emails from the plaintiff to the employer regarding a medical appointment and medical reports
The Injury
32The plaintiff says she first noticed bilateral elbow pain at work at some unspecified time in 2017. The pain started after pushing an empty trolley into a washer and filling it with trays of instruments. Her right shoulder pain developed later.
33The plaintiff underwent various radiological investigations and treatments including the following:
·Cortisone injection in the left elbow in around early 2018;[6]
·Ultrasound guided cortisone injection of the left elbow on 18 June 2020;[7]
·Ultrasound guided right AC joint injection on 7 May 2021;[8]
·Ultrasound guided cortisone injection in the left elbow on 12 May 2021;[9]
·Right shoulder hydrodilatation and contracture release on 3 July 2021;[10]
·Right shoulder arthroscopic capsular release, subacromial decompression, AC joint excision and rotator cuff repair on 22 March 2022;[11]
·Ultrasound-guided injection to the left elbow on 8 March 2023;[12]
·Right shoulder needle arthroscopy, capsular release and suprascapular nerve block on 30 March 2023;[13]
·Cortisone injection to the left elbow on 20 June 2023.[14]
[6]Plaintiff Exhibit 1, Plaintiff’s Court Book (“PCB”) 9 [15]
[7]Plaintiff Exhibit 1, PCB 10 [23]
[8]Plaintiff Exhibit 4, PCB 55; Plaintiff Exhibit 6, PCB 94
[9]Plaintiff Exhibit 1, PCB 12 [34]
[10]Plaintiff Exhibit 4, PCB 55
[11]Plaintiff Exhibit 4, PCB 56
[12]Plaintiff Exhibit 1, PCB 19 [14]; Plaintiff Exhibit 6, PCB 100; Plaintiff Exhibit 4
[13]Plaintiff Exhibit 4, PCB 57; Plaintiff Exhibit 4, PCB 64
[14]Plaintiff Exhibit 1, PCB 13 [43]
34At times she wore elbow braces.
35The plaintiff took time off work in 2020 due to anxiety and stress about the Covid-19 pandemic. She returned to work in 2021. She took annual leave early in 2021 due to bilateral elbow and right shoulder pain.
36The plaintiff started light duties in early 2021. In her Affidavit she described these as “computer duties”.[15] She says she developed neck pain as a result of these duties.
[15]Plaintiff Exhibit 1, PCB 11 [30]
37By early 2022, the plaintiff was working “light office duties”[16] for 2 hours per day, 2 days a week. She deposed that these duties were very difficult because of right shoulder pain.
[16]Plaintiff Exhibit 1, PCB 12 [38]
38Between around March and June 2023, she returned to work performing modified duties on restricted hours, which consisted of “some computer-based work”.[17] She deposed this work was difficult due to her right and left arm limitations and neck pain from having a fixed posture. She said that sorting documents and other clerical tasks caused pain in both of arms.
[17]Plaintiff Exhibit 1, PCB 22 [28]
39The plaintiff ceased work entirely in June 2023. She completed a 10-week pain management program which commenced in August 2023.
Current treatment
40The plaintiff’s current treatment involves:[18]
· Weekly physiotherapy with Mr Lachlan Robinson.[19]
· Periodic consultations with her GP. The frequency with which the plaintiff continues to see her GP is unclear.[20]
· Periodic reviews with Dr Hafezi, who managed her pain management program. The frequency with which she continues to see Dr Hafezi is unclear.
· Taking Panadol or Voltaren most days, with Panadeine Forte usually weekly but sometimes more if she has flare-ups.
· Nightly use of a heat pack.
[18]Plaintiff Exhibit P1, PCB 21 [23]-[24]
[19]T43, L28-31
[20]T44, L3-4
The plaintiff as a witness
The plaintiff’s Affidavit evidence
41The plaintiff tendered two Affidavits affirmed on 31 August 2023 and 14 August 2024[21] in which she deposed to the following impairment consequences.
Pain
· Right arm – constant daily pain which was worse at the end of the day and first thing in the morning and extended from her right shoulder down to her wrist. The pain sometimes radiated to the right side of her neck as well. In general, she struggled to lift, pull, push and perform repetitive overhead movements with her right arm. Reaching, repetitive or heavy lifting, and arm movements away from her body or above shoulder height caused flare-ups in the pain. She had limited range of movement and strength in her right arm.
· Left elbow – the pain was less than her right arm. She had discomfort after manual activity. She experienced flare-ups of pain in the elbow at times, as well as tenderness and occasional numbness in the left forearm.
· Pain impeded her in the following activities:
§Cooking – she was passionate about Sri Lankan cooking. It gave her joy to cook for her sons. She now cooked because of necessity.
§Cleaning – she avoided heavy cleaning tasks such as vacuuming and mopping.
§Gardening – was her main hobby prior to her injury. She was now very restricted with what she could do. She had lost the enjoyment of gardening because of right shoulder pain and restriction.
§Driving – she found it difficult to drive because of right shoulder and elbow pain. She tried to use her left hand when she had to drive. She had difficulty driving extended distances.
[21]Plaintiff Exhibit P1, PCB 7-24
Sleep
· Right shoulder – pain caused her to struggle to get to sleep on her right side. Right arm pain woke her up at night and she used a heat pack.
Activities of daily living
· Right shoulder discomfort arose from tasks like washing her hair in the shower or reaching behind her back to put on a bra. She had difficulty applying makeup and putting on blouses but did not say whether these consequences were attributed to her right or left arm.
· The plaintiff also claimed that she enjoyed the social aspect of her pre-injury work, and did not have many friends outside of work.
Capacity for suitable employment
· She was prevented from doing most manual roles because of her pain and the flare-ups associated with manual activity.
· She had basic computer skills, was a slow typist, and was quite slow with composing emails. She believed she would struggle with right arm and left arm pain if she had to consistently use a keyboard and mouse.
· Her English was not very good, and she lacked confidence especially with her written expression.
· She had attended some English classes but said that her treatment and participation in the pain management program had affected her attendance at the English classes and her progress had been slow.
The plaintiff’s oral evidence
42The plaintiff gave evidence through an interpreter. She answered the majority of questions in cross-examination through the interpreter.
43On one occasion during re-examination the plaintiff corrected the interpreter when the interpreter used the word “type”, and the plaintiff corrected him in English so that he then said “write”.[22]
[22]T63, L28-29
English abilities
44During cross-examination, Counsel for the VWA put to the plaintiff that her English language abilities were better than she had conveyed in the court room. The plaintiff denied this.[23] The plaintiff maintained that she found it difficult to communicate in English.[24]
[23]T32, L7-9
[24]T18, L16-21
45The plaintiff agreed that she had successfully completed a one-year Certificate III in Sterilisation Services Course on 13 February 2013.[25]
[25]Defendant Exhibit D7, Defendant’s Court Book (“DCB”) 280
46The VWA tendered coursework and documents from the plaintiff’s Sterilisation Course, including a “Student Personal Reflection” which had handwritten, daily diary entries from 19 November 2012 to 17 December 2012. The plaintiff’s evidence was that she would write her entries in Singhalese, a friend would translate it into English for her, and she would copy that translation in her own handwriting into the work book.[26]
[26]T17, L12-30
47The plaintiff completed two subsequent one-day courses as part of an HICMR workshop before coming to Melbourne.[27] The first course was in relation to flexible endoscopy and probes. The second was in relation to infection prevention and control, sterilisation.
[27]T23, L5-7 (HICMR was the acronym for “Healthcare Infection Control Management Resources”)
48The plaintiff said she did not understand approximately 75 per cent of those courses. She said she had a Singhalese friend who explained things to her later.[28] The plaintiff said she managed the courses by replaying a recording[29] many times, as well as asking her friends and sons to explain it back to her.[30]
[28]T23, L13-26
[29]It is assumed that the plaintiff was referring to a recording that she had made of the course
[30]T23, L29 – T24, L1-5
49The plaintiff agreed that when working in her Sterilisation Technician role in Perth, she was able to communicate sufficiently with her co-workers in English, and her level of English was sufficient for her to understand instructions.[31]
[31]T19, L29 – T20, L1
50When asked whether her English was sufficient for her to ask questions when she didn’t understand particular aspects of her job, the plaintiff responded, “I did have a lot of Singhalese speaking people with me.”[32]
[32]T20, L2-4
51In both of her Sterilisation Technician roles in Perth and in Melbourne, she managed reading the daily allocation of her work tasks which were in English.[33]
[33]T20, L23-24
52She said that her job was performed at night, and she worked mainly on her own. She was not challenged on these points.
53The plaintiff gave evidence about her sons composing emails for her. She said she knows how to send an email, but she cannot write.[34] She said, “because of my broken language and maybe will not understand I get the help of my sons to write or get them to write for me”.[35]
[34]T16, L15-16
[35]T17, L9-11
Computer skills
54During cross-examination, Counsel for the VWA put to the plaintiff that she had downplayed the true extent of her computer abilities when providing evidence to the Court. This was denied by the plaintiff.[36]
[36]T31, L11-14
55The plaintiff said that she hand wrote her assignments when completing her Sterilisation Technician course.[37] She used her sons’ laptops to access course reading material online.[38] She was able to use basic functions including internet browsing and sending and receiving emails.[39]
[37]T18, L26-27
[38]T22, L7-8 and L20-22
[39]T15, L24-31
56The Recovre Report was put to the plaintiff which referred to her use of computers to manage timetables and make electronic submissions during her course. The plaintiff denied this and repeated that her submissions were handwritten.[40]
[40]T22, L25 – T23, L1-4
57The plaintiff said that the light duties she performed at work in 2021 involved a specific computer program which displayed numbers on the computer screen, and her role was to check the numbers and find the corresponding papers.[41] She said she only had to go up and down on the program.[42]
[41]T27, L12-17 and T28, L2-3
[42]T28, L24
Capacity for retraining and suitable employment
58The plaintiff said she could not work as a Receptionist or Medical Receptionist because her neck became painful when looking at a computer for a while,[43] and that she had a problem with her shoulder where she could not raise her right arm and work.[44] She also finds it hard to write things because she has pain.[45]
[43]T41, L19-21
[44]T42, L3-10
[45]T63, L21-22
59The plaintiff said her English and computer skills are not presently good enough to meet either the Receptionist or Medical Receptionist roles.[46]
[46]T41, L11-16
60She said that she was willing to undertake a Medical Secretary course identified in the Recovre Report, but she said she would need to improve her English before she could undertake the proposed Introduction to MS Office course or any intermediate computer course.[47] She said that because of her age, she did not know how long it would take to successfully complete retraining for those roles.[48]
[47]T42, L15-27
[48]T41, L11-16
61In re-examination she said that she would have problems learning English because at her age she found it hard to memorise things.[49] She said that she found studying difficult because her mental status is not right at the moment.[50]
[49]T49, L30-31
[50]T63, L16-19
Was the plaintiff reliable?
62As has been said many times in serious injury applications, the reliability of a plaintiff will often be critical to the resolution of the application.[51] This case is no exception.
[51]Popal v Transport Accident Commission [2023] VSCA 222; Johns v Oaktech Pty Ltd [2020] VSCA 10
The VWA’s submissions
63The VWA submitted the plaintiff’s evidence as to her English language ability and computer proficiency was inconsistent with her prior employment or training.[52] She had been employed for 18 months in a café, followed by nine years in instrument sterilisation, having successfully completed the necessary training and qualifications for that job. The VWA emphasised that this was important specialised work in the medical field.[53]
[52]T72, L23-28
[53]T80, L3-4
64The VWA submitted that during her oral evidence the plaintiff exaggerated or downplayed her English-language and computer proficiency and did not make appropriate concessions.[54]
[54] T73, L9-14
The plaintiff’s submissions
65Senior Counsel submitted that there was nothing of concern in the plaintiff’s evidence which could not be explained by the fact that the plaintiff was giving evidence in an unfamiliar place, and that giving evidence in Court is a stressful experience.[55]
[55] T121, L18-20
Findings on reliability
66The plaintiff’s evidence is that her English capacity is limited. On the face it, this seems contrary to her completing a Certificate III in Sterilisation Services and securing a full-time role as a Sterilisation Technician and performing that role without issue for approximately 10 years.
67Neither party sought to test Ms Bodiyabaduge’s evidence without the assistance of an interpreter.
68The VWA did not produce evidence from the employer about the job requirements of a Sterilisation Technician. It was not suggested to the plaintiff during cross-examination that her ability to understand instructions regarding the surgical packs, working at night, mainly alone was inconsistent with her asserted lack of English. I accept her description of these activities. I find that she mainly worked alone and had little interaction with co-workers or superiors.
69The plaintiff’s treating doctors have not commented on her English proficiency. A number of medico-legal doctors have specifically commented on this.
70Whilst I have my doubts that the plaintiff’s English skills are as limited as she says, the evidence, as it stands, supports the plaintiff’s assertion.
71I find that the plaintiff has a limited proficiency in spoken and written English.
Radiology and operation notes
Right shoulder
72The plaintiff tendered the following radiology in relation to the right shoulder:
(a) MRI scan of Right Shoulder dated 26 March 2021;
(b) Report of Ultrasound-Guided Right AC Joint Injection dated 7 May 2021;
(c) MRI scan of Right Shoulder performed on 22 July 2021 and dated 23 July 2021;
(d) MRI scan of Right Shoulder dated 15 February 2023;
(e) MRI scan of Right Shoulder performed on 5 June 2023 and dated 7 June 2023.[56]
[56]Plaintiff Exhibit P6, PCB 88-110
73The initial MRI scan of 26 March 2021 was reported to show no gross rotator cuff tear, but did reveal subscapularis tendinopathy and tendinosis at the long head of the biceps.
74The MRI scan of 23 July 2021 was performed three months after a hydrodilatation. It was reported to show moderate acromioclavicular joint degeneration. Fluid was not noted in the joint capsule with adjacent oedema which was presumed to be secondary to the prior hydrodilatation. The radiologist noted that this made it very difficult to rule out the presence of any tendinosis.
75The MRI scan of 15 February 2023 was compared to the MRI scan of 23 July 2021 and it was reported that there was a longitudinal split tear of the intraarticular component of the long head of biceps tendon along with marked supra- and infraspinatus insertional tendinopathy, moderate right-sided pleural effusion, a thickened inferior glenohumeral ligament and anterior capsule, which could possibly account for symptoms of adhesive capsulitis in the appropriate clinical context. In addition, the scan was reported to show Grade 2 chondromalacia at the glenohumeral articulation with degenerative fraying of the glenoid labrum superiorly and marked degenerative change at the acromioclavicular articulation with interval disruption of the inferior acromioclavicular ligament of moderate joint effusion.[57]
[57]Plaintiff Exhibit P6, PCB 101-102
76The MRI scan of the right shoulder dated 7 June 2023 was reported to show bursitis with impingement as well as supraspinatus post-surgical changes/tendinopathy with mild enthesopathy supraspinatus.[58]
[58]Plaintiff Exhibit P6, PCB 106
Right elbow
77The plaintiff tendered two ultrasounds of the right elbow.
78An ultrasound dated 10 March 2021 was reported to show tendinosis with partial-thickness tear through the common extensor origin.
79An ultrasound performed on 25 January 2023 and dated 27 January 2023 was reported to reveal common extensor and common flexor tendinosis, with possible full-thickness tear of the radial collateral ligament.[59]
[59]Plaintiff Exhibit P6, PCB 97
Left arm
80The plaintiff tendered ultrasounds, MRIs of the left elbow and forearm, a procedure note regarding the left elbow, and a left shoulder x-ray and ultrasound.
81The ultrasound of the left elbow/forearm dated 14 June 2018 was reported to show common flexor and common extensor tendinitis. There was no joint effusion seen.
82The ultrasound of the left elbow dated 18 June 2020 was reported to show a 6 x 3 mm partial thickness intrasubstance tear in the common extensor origin with small to moderate sized posterior effusion present.
83In the ultrasound of the left elbow performed on 10 September 2020 and dated 11 September 2020, it was reported that the tear was noted to have decreased in size and measured 3 mm x 3 mm x 2 mm. Moderate lateral epicondylitis was demonstrated. Moderate medial epicondylitis was reported.
84An ultrasound of the left elbow performed on 13 February 2023 dated 14 February 2023[60] was reported to show no tendon or ligament tear. The common extensor and common flexor origins were described as “moderately thickened”. The conclusion was that there was common flexor and common extensor origin tendinitis.
[60]Plaintiff Exhibit P6 PCB 98
85On 8 March 2023, an ultrasound-guided left elbow injection took place. A mixture of Celestone and Xylocaine was injected into the left common extensor tendon origin.
86The ultrasound of the left elbow on 5 October 2023 was reported to show findings of a common extensor tendon partial thickness tear measuring 2 x 9 mm. There was no appreciable compression at the carpal tunnel. The radiologist recommended nerve-conduction studies and an MRI examination to exclude a neural-perineural lesion.[61]
[61]Plaintiff Exhibit P6, PCB 107
87The MRI of the left elbow performed on 20 November 2023 and dated 21 November 2023 was reported to show common extensor origin which demonstrated tendinopathy. A discrete tear was not detected. The common flexor origin appeared normal. There was minor full thickness fissuring in the patellar articular surface with subchondral oedema and full thickness chondral wear detected involving the coronoid/olecranon articular surface with subchondral oedema.
88An x-ray and ultrasound of the left shoulder dated 22 April 2024 were also tendered. The x-ray was reported to show mild degenerative changes in the glenohumeral joint and marked degenerative changes in the acromioclavicular joint. The ultrasound was reported to show a 4 mm partial tear and degenerative changes.
The vocational evidence
89In order to understand the medical opinions regarding suitable employment evidence, it is convenient to summarise the vocational material at this point.
90The VWA tendered reports from Konekt and Recovre.
91The plaintiff was accompanied by an interpreter to both interviews. It was noted in the Recovre report that the plaintiff frequently deferred to the interpreter during the interview. It was also noted that she was able to communicate in English to perform limited activities in the community. When undertaking more complex activities, such as dealing with a bank manager, she would take one of her children with her to interpret for her.
92Recovre had conducted Worksite assessments for each of the three proposed roles.
Information Officer
93Recovre conducted a Worksite assessment on 1 June 2023 at a shopping centre in Maribyrnong.
94The Recovre report described an Information Officer at a shopping centre as a first point of contact for members of the public seeking information about the services within the shopping centre.
95This role involved standing at an Information desk which was part of an Information Centre booth. Such Information Centres were located inside the shopping centre.
96The Information Officer would answer queries from customers, as well as answering inbound phone calls and emails from customers. It was said that customers mostly sought information regarding directions, store opening hours and other facilities available within the centre.
97In addition, the Information Officer would be required to perform some data entry work which included logging lost property and maintenance requests and processing bookings for wheelchairs and mobility scooters.
98The physical requirements of the role involved standing at an Information desk for the entire day, except during break periods. There is frequent walking within the immediate work area. Incidental minor reaching may be required passing papers to and from customers. This was not a significant feature of the role.
99Wheelchairs were generally stored in cupboards at the Information Centre booth. Manoeuvring the wheelchairs out of the cupboards involved less than 5 kilograms of force and the push distance was usually less than 5 metres. Mobility scooters were driven into place involving short duration sitting and operation of forward/backward levers.
100No formal education requirements were needed. It was noted that the role required excellent personal presentation skills and verbal communication skills. Basic computer skills and sound literacy skills were required sufficient to manage regular email communications with customers and data entry tasks into an industry specific application. The only reference to training referred to the use of the “ARC” system which was taught on the job. It was said that workers needed to be competent with mouse navigations to move between and within computer screens.[62]
[62]Defendant Exhibit D6, DCB 143
101An Information Officer could earn $940.88 gross per week for a 38-hour week on an hourly rate of $24.76 per hour.
Receptionist
102Recovre conducted a Worksite assessment on 5 May 2022 at a community centre in Carrum Downs.
103The Recovre Report described a Receptionist role in which the main tasks were to greet visitors to the centre, ascertain the visitors’ needs, provide information regarding services, take and change bookings, attend to payments processing, with some data entry and other administration tasks such as printing and photocopying. An example was given of a workplace within a community centre providing various services including childcare, education services, a café, library services and meetings/function room services amongst other services.
104In terms of physical demands, a sit/stand desk could be made available for the Receptionists at the example workplace. There was incidental forward reaching within around 450 mm of the body when passing papers to and from customers.
105In relation to education and training, it was said that the role could be offered as entry-level which meant that workers should possess sound customer service skills and sound skills in a range of basic computer operations such as email, Word and Excel.[63]
[63]Defendant Exhibit D6, DCB 146
106A Receptionist could earn $937.50 gross per week for a 37.5-hour week.
Medical Receptionist
107Recovre conducted a Worksite assessment on 22 March 2023 at a medical practice in Berwick.
108According to Recovre, a Medical Receptionist would be primarily required to manage patient appointments as well as performing data entry relating to new patients, general customer service tasks, document scanning and related tasks. They would not have to process payments. The Medical Receptionist took minutes at a monthly staff meeting.
109Ability to manage a computer-based appointments and patient records management application was required. A Medical Receptionist would need to be proficient in Word, CISCO telephone system and Webex for virtual meetings.
110Physical demands were similar to those in the Receptionist role. Tasks were mostly desk based. Bilateral hand use was required as tasks were primarily computer based with associated keyboard and mouse use. Incidental reaching with either arm, by choice of the worker, may arise when passing papers to and from patients. Medical Receptionists occasionally scanned hardcopy patient records to the patient’s electronic file, though most patient records were now electronic. It was said that the hardcopy documentation did not exceed 1 kilogram in weight.
111Sundry tasks involved setting up meeting rooms for training sessions, putting out light refreshments and jugs of water on tables and loading/unloading the dishwasher and wiping tables. Lifting and carrying of items up to around 3-4 kilograms may be required during meeting-related set-up.
112It was noted that there were no formal educational qualification requirements to work as a Medical Receptionist. It was said that workers should be competent with basic skills within the Microsoft suite of applications (excluding Excel) and that they should possess a calm nature and be able to show empathy and care towards patients. It was noted that the building which had been inspected was secure with patients only admitted by arrangement and at the discretion of staff and therefore workers were very unlikely to be confronted by agitated or aggressive visitors.[64]
[64]Defendant Exhibit D6, DCB 150
113A Medical Receptionist could earn $1232 gross per week when working 38 hours per week.
The plaintiff’s treating practitioners
Dr Prabath Watapaldeniya, GP
114The plaintiff tendered a letter from Dr Watapaldeniya dated 21 February 2024 and a report dated 6 August 2024, together with a letter of instruction from the plaintiff’s solicitors dated 19 July 2024.[65]
[65]Plaintiff Exhibit P3, PCB 48-53
115Dr Watapaldeniya’s letter dated 21 February 2024 dealt mainly with the plaintiff’s anxiety. Dr Watapaldeniya opined she had long term chronic anxiety “irrespective of the workcover injury”. He said that due to unspecified physical injury, she was unable to return to work.[66]
[66]Plaintiff Exhibit P3, PCB 48
116His report of 6 August 2024 together with the letter of instruction dealt more extensively with the injuries the subject of this application.
117Regarding the right arm, he said:
(a) Right shoulder – long term chronic pain due to adhesive capsulitis and recurrent bursitis with multiple previous steroid injection which failed and finally having shoulder arthroscopy with capsular release. Despite the surgery and multiple non-surgical interventions, she had ongoing shoulder pain due to bursitis and associated rotator cuff tear.
(b) Right elbow – common extensor chronic tendonitis and common flexor chronic tendonitis with associated tear of radial collateral ligament, again noting the limited response to multiple steroid injections and “years of physiotherapy.”
118Regarding the left elbow, he diagnosed common extensor and flexor chronic tendonitis with associated cartilage wear and tear of elbow joint.
119Dr Watapaldeniya was hesitant to comment on the impacts of the right arm and left arm injuries on work capacity in isolation of each other.
120In response to the following question from the plaintiff’s solicitors:
“Taking into account our client’s right shoulder and elbow injuries alone (excluding any other physical or psychiatric injury) do you consider our client has a capacity to perform suitable employment? Please state your reasons.”
He said:
“Due to multiple pathologies in all three joints involved its very unlikely she can return to any meaningful work in the foreseeable future.”[67]
(emphasis added)
[67]Plaintiff Exhibit P3, PCB 52
121He was also asked:
“In the alternative, taking into account our client’s left elbow injury alone (excluding any other physical or psychiatric injury), do you consider that she has a capacity for suitable employment? Please state your reasons.”
He responded:
“It’s hard for me [to] [sic] answer this question as I am unable to give an answer based solely on her left elbow, when I know clearly, she has pathologies in her right shoulder and elbow. But based on her left elbow pathology alone and provided she has a normal right shoulder and right elbow, she can work in office work environment. Based on her left elbow pathology alone she can’t do any heavy lifting and would not be able to return to her previous work.”[68]
[68]Plaintiff Exhibit P3, PCB 53
Dr Gayan Padmasekara, Orthopaedic Surgeon
122The plaintiff tendered two reports of Dr Padmasekara dated 11 September 2023 and 19 July 2024.[69]
[69]Plaintiff Exhibit P4, PCB 54-70
123Dr Padmasekara first reviewed the plaintiff on 12 April 2021. He performed the following procedures on the plaintiff:
Right arm
(a) Right shoulder hydrodilatation and contracture release for right shoulder adhesive capsulitis on 3 July 2021.[70]
(b) Right shoulder arthroscopic capsular release, subacromial decompression, AC joint excision and rotator cuff repair on 22 March 2022.[71]
Left arm
(c) Ultrasound guided left elbow injection on 8 March 2023. A mixture of Celestone and Xylocaine was injected.[72]
[70]Plaintiff Exhibit P4, PCB 62
[71]Plaintiff Exhibit P4, PCB 63
[72]Plaintiff Exhibit P6, PCB 100
124He confirmed that a right shoulder needle arthroscopy, capsular release and a suprascapular nerve block was performed at St John of God Hospital in Berwick on 30 March 2023.
125He opined that the plaintiff was unable to pull, push, lift or carry, and had a reduced range of motion. She had a driving capacity of up to 20 minutes. These restrictions applied to both the right arm and the left elbow independently of each other.
126In his second report, he opined the plaintiff was incapable of returning to the workforce. He considered that even employment as a Medical Receptionist, which needs repetitive upper limb movements (e.g. answering phones, typing etc) was likely to exacerbate her symptoms.
127Dr Padmasekara discharged the plaintiff from his care in February 2024, having formed the view that her injuries had stabilised, and recommended ongoing conservative management.
Mr Lachlan Robinson, Physiotherapist
128The defendant tendered a report from Mr Robinson dated 6 August 2024 and the letter of instruction from the plaintiff’s solicitors dated 24 July 2024.[73]
[73]Defendant Exhibit D 15, DCB 321-331
129It is unclear when Mr Robinson first began treating the plaintiff. Mr Robinson practises at Advance Healthcare in Dandenong. The plaintiff was referred to Advance Healthcare there for a pain management program under Dr Hafezi (Pain Specialist). The pain management programmed commenced on 26 August 2023. I have inferred that she commenced physiotherapy treatment with Mr Robinson as part of the program or shortly after completing the programme.
130In his report, Mr Robinson described her treatment as a graded activity and exercise program in a slow stream format following early discharge from her pain management program. It appears Mr Robinson treats the plaintiff without the assistance of an interpreter.
131Mr Robinson opined that full recovery was unlikely. He considered it likely that the plaintiff would experience ongoing pain and functional limitation but said that the situation might improve with appropriate physical and psychiatric/psychological management. Mr Robinson opined there was a possibility that her symptoms had been perpetuated by psychological factors but was been unable to comment on the degree of influence of those factors.
132Mr Robinson opined the following restrictions were applied to the right limb and left elbow injuries separately and independent of each other:
· Lifting and carrying limited to 2kg bilaterally combined with upper limbs and below shoulder height;
· Unable to repeatedly reach above shoulder height;
· Pushing/pulling limitations uncertain but likely below 5kg bilaterally combined with upper limbs; and
· Driving is limited to within pain tolerance but is able to be completed.
133Mr Robinson took a history that the plaintiff had been unable to continue working in 2023 due to cervical spine symptoms which developed whilst she was undertaking modified duties.
134Mr Robinson was asked to comment on the suitability of the roles proposed in the Konekt report dated 27 April 2023 and the Recovre Vocational Assessment Report dated 20 November 2023 taking into account the plaintiff’s right arm alone, and then taking into account the left elbow alone.
Right arm
In relation to the Sterilisation Technician role, this was not suitable because of the plaintiff’s right shoulder injury.
In relation to the roles relied upon by the VWA – it was his opinion that the roles of Medical Receptionist, Receptionist, and Information Officer might be suitable if the duties could be performed at a self-paced speed and if the plaintiff was allowed to commence work on restricted hours.
Left elbow
He expressed similar views regarding the suitability of the roles based on the left elbow alone.
Dr Pouya Hafezi, Pain Specialist
135The plaintiff attended Dr Hafezi for a 10-week pain management program in 2023. She continues to have periodic reviews with Dr Hafezi.
136There is no material before the Court from Dr Hafezi. No explanation has been provided to the Court to explain the absence of this material.
The plaintiff’s medico-legal evidence
Dr Robyn Horsley, Occupational Physician
137The plaintiff tendered two reports of Dr Horsley dated 10 July 2024 and 17 July 2024.[74]
[74]Plaintiff Exhibit P5, PCB 71-87
138The plaintiff attended Dr Horsley in person on 10 July 2024 with an interpreter.
139Dr Horsley opined the plaintiff developed right shoulder adhesive capsulitis, right elbow lateral epicondylitis and left elbow medial epicondylitis.
140Dr Horsley said that the following restrictions applied based on the right shoulder alone:
(a) Avoidance of repetitive overreaching;
(b) Avoidance of repetitive pushing and pulling;
(c) Avoidance of static postures involving the right shoulder girdle;
(d) Tasks should be undertaken at waist height;
(e) Avoidance of lifting items greater than 5-6 kg, except on an occasional basis;
(f) Avoidance of lifting items up to 5kg on a repetitive basis; and
(g) Avoidance of forceful activities involving the right shoulder girdle.
141The restrictions Dr Horsley recommended based on the left elbow alone were:
(a) Avoidance of repetitive flexion and extension of the left elbow;
(b) Avoidance of repetitive supination and pronation;
(c) Avoidance of prolonged grip;
(d) Avoidance of repetitive pushing and pulling;
(e) Avoidance of lifting items greater than 5kgs, except on an occasional basis; and
(f) Avoidance of lifting items up to 2kgs on a repetitive basis.
142Dr Horsley noted functional tolerances for intermittent right knee and back pain, unrelated to this application. She recommended a walking tolerance of 30 minutes, a dynamic standing tolerance of 30 minutes for the right knee, and a static standing tolerance of 10-15 minutes for back pain.
143Dr Horsley opined the plaintiff had no capacity for pre-injury duties as a Sterilisation Technician, based on both the right shoulder and the left elbow independently of each other.[75]
[75]Plaintiff Exhibit 5, PCB 86
144Dr Horsley noted that the plaintiff relied upon the interpreter for a large percentage of the interview. The plaintiff could communicate in simple English. Her literacy skills in English are poor. Dr Horsley was told that the plaintiff could read and understand about 30 per cent of the newspaper, that her emails were primarily completed by her sons, she had no access to a computer, and used a translator on her phone.
145Dr Horsely opined that the plaintiff’s working life had come to an end. Dr Horsley considered that the plaintiff was not a retraining or deployment candidate.
146Dr Horsley said:
“I believe that the suggestion that continued English language literacy training and computer skills upgrading to a level to be able to undertake roles of production clerk, information officer, receptionist and medical receptionist are completely unrealistic”.
147Dr Horsley said that she does not believe that any of the suggested roles are realistic when one considers the plaintiff’s right shoulder condition alone and to a lesser extent her left elbow condition alone.
Dr Clayton Thomas, Consultant in Rehabilitation and Pain Medicine
148The plaintiff tendered two reports of Dr Thomas dated 18 July 2023 and 14 December 2023.[76] An interpreter attended both examinations.
[76]Plaintiff Exhibit P7, PCB 111-122
149Dr Thomas noted that she communicated predominantly through the interpreter at both examinations. Dr Thomas remarked he was not able to assess her English communication skills.
150Dr Thomas diagnosed:
· Right shoulder capsulitis surgically treated with residuals.
· Right elbow epicondylitis with residuals which led to the development of a chronic pain syndrome with central sensitisation.
· Left elbow epicondylitis with degenerative changes suggestive of early osteoarthritis.
151Dr Thomas did not explain what he meant by “residuals” in his diagnosis.
152Initially, Dr Thomas recommended the plaintiff could perform “shoulder friendly” work with restrictions on lifting no more than 2.5 kg. She was not to put her right arm beyond 30 degrees forwards or sideways from her body in general. Pushing and pulling were also to be limited. Dr Thomas opined the plaintiff had the capacity to work with those limitations for five hours, five days a week.
153In the second report, Dr Thomas altered his opinion and stated he felt the plaintiff had no capacity for suitable employment.
154Dr Thomas reviewed the Konekt Report. He opined that whilst the plaintiff had the capacity to work as an Information Officer and probably as a General Clerk, his proposed restrictions meant that she could only work in such a role for a few hours a few times a week, and therefore such restrictions were not compatible with employment. The roles of Call or Contact Centre Operator were not suitable because of the repetitive nature of the work.
155Dr Thomas did not address the roles of Receptionist or Medical Receptionist, as he was not given the Recovre Report.
The VWA’s medico-legal material
Medical Panel
156The defendant tendered the Medical Panel Reasons for Opinion dated 13 March 2024.[77]
[77]Defendant Exhibit D4, DCB 3-81
157The plaintiff was examined with an interpreter present on 9 February 2024 by a Medical Panel consisting of Dr Hana Thompson, Dr Jennifer Harmer and Dr Christine Olesch.
158It appears that the matter was referred to the Medical Panel after the VWA agent terminated the plaintiff’s weekly payments from 7 October 2023. The plaintiff disputed the decision.
159The questions which had been referred to the Medical Panel and the Medical Panel’s Certificate of Opinion were not tendered.
160The Panel concluded the plaintiff was suffering from:
(a) Residual dysfunction of the right shoulder consequent to a soft tissue injury surgically treated.
(b) Persisting symptoms in the right elbow secondary to a soft tissue injury with no clinical evidence of lateral epicondylitis.
(c) Persisting symptoms in the left elbow secondary to a soft tissue injury with no clinical evidence of lateral epicondylitis.
161The Panel also concluded that any role undertaken by the plaintiff would need to avoid heavy lifting or any prolonged loading of the forearms, as well as avoid repetitive movements of the forearms. The plaintiff did not have the capacity to return to her pre-injury role as a Sterilisation Technician.
162The Panel considered the role of Information Officer and Call or Contact Centre Operator and opined it could identify no physical barrier to undertaking such a role. However, the Panel concluded the role would be potentially unsuited to the worker due to the likelihood that high-level English language communication skills in such a fast-paced environment, in both written and verbal form, would be required.
163The Panel concluded that the role of Sales Assistant would be suited to the worker but this was not a role relied upon by the VWA.
Dr Joseph Slesenger, Occupational Physician
164The defendant tendered two reports from Dr Slesenger dated 13 March 2023 and 15 December 2023.[78] The plaintiff attended each assessment with Dr Slesenger with an interpreter.
[78]Defendant Exhibit D5, DCB 31-71
165Dr Slesenger was told that the plaintiff had limited English language skills.
166At the time of his first report, the plaintiff was still working for the employer, on modified duties and reduced hours.
167By the time Dr Slesenger re-examined the plaintiff in December 2023, she reported that her left elbow symptoms had deteriorated. In December 2023, the plaintiff also reported that she had recently developed left shoulder pain and presented with restricted range of movements in the left shoulder.
168There were complaints of weakness and restricted range of movements in the right shoulder. Dr Slesenger noted an absence of wasting on clinical examination. On this basis, Dr Slesenger opined that there was a functional element to the plaintiff’s presentation.
169He diagnosed:
Right shoulder:
§Soft tissue injury;
§Adhesive capsulitis;
§Rotator cuff tear;
§AC joint arthropathy for which the plaintiff has undergone surgery in July 2021 and 22 March 2022.
§Chronic right shoulder pain with evidence of adhesive capsulitis.
Right elbow:
§Medial and lateral epicondylitis;
§Chronic elbow pain.
Left elbow:
§Lateral epicondylitis;
§Chronic elbow pain.
170In relation to the left elbow, while he noted that the plaintiff presented with evidence of left medial epicondylitis in December 2023, there was no evidence of these symptoms in March 2023, and he was therefore unable to attribute the left elbow symptoms to the injury under consideration.[79]
[79]Defendant Exhibit 3, DCB 61
171Taking into account the organic physical impairment alone, and excluding any functional element to the plaintiff’s presentation, Dr Slesenger recommended the following restrictions as a result of the right shoulder, right elbow and left elbow conditions:
· No pushing, pulling, carrying or lifting over 5kg;
· No sustained forward reaching;
· No over shoulder reaching;
· No fast repetitive shoulder or elbow tasks;
· Avoid firm pushing and pulling;
· Avoid firm torque movements.
172Dr Slesenger considered that the plaintiff was not capable of performing her pre-injury role. He considered that the plaintiff had capacity to perform suitable employment, presumably on a full-time basis, in accordance with the above restrictions.
173Dr Slesenger was provided with vocational materials which included reports that are not before the Court. He was given the Konekt report and the Recovre report – both of these have been tendered in this application.
174Dr Slesenger noted that there were two Information Officer role descriptions before him.
175Turning first to the Information Officer role in the Konekt report, Dr Slesenger noted:
· It was a sedentary role;
· Lifting, carrying, stretching, twisting or climbing were not a significant component of the job;
· Repetitive arm, hand, and finger movements are constant for data entry, word processing tasks and when using the phone;
· Use of hand-held objects such as pens, calculators and staplers, as well as computers and telephones, is frequent. Employees need to operate printers, copiers, and a range of other office equipment, and refill paper trays and ink supplies.
· Mental skills necessary include a sound level of recording, organisation and communication skills.
176Dr Slesenger opined that this role was suitable provided it remained within the restrictions he had recommended.
177Dr Slesenger opined that the Information Officer role in the Recovre Report was unsuitable as:
· Prolonged standing was a feature of the role;
· Carry/Push/Pull: there were no significant requirements to perform these actions. Push/pull actions were required when manoeuvring wheelchairs (empty) in and out of their storage cupboards involving forces in the vicinity of 5kg over less than 3m on a sporadic basis;
· Lifting was limited to handling of lost property items handed in by customers and stores. In practice, these items were lightweight (usually clothing items, phones, bags and the like) and would not normally exceed around 1-2kg.
· Fine manipulation: bilateral hand use was required to complete data entry and other computer-based tasks. There were no requirements to produce lengthy word-based documents and most data entry involves entering customer details and/or responding to email queries.
178Dr Slesenger did not explain why one Information Officer role was suitable and one was unsuitable.
179Dr Slesenger opined the Medical Receptionist and Receptionist roles as set out in the Recovre Report were suitable provided the plaintiff adhered to his recommended restrictions.
180Dr Slesenger recommended she commence on graduated hours, four hours a day, four hours a week, to pre-injury hours over 6-8 weeks.
Pecuniary Loss
181The fact that the plaintiff cannot return to her pre-injury employment, as conceded by the defendant, in my view justifies a conclusion of a “very considerable” consequence to her, such that the narrative test is satisfied.
Suitable Employment
182The Court must consider whether the plaintiff has the capacity to undertake “suitable employment”.
183“Suitable employment” is defined in s3 of the Act as follows:
“in relation to a worker, means employment in work for which the worker is currently suited—
(a)having regard to the following—
(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;
(ii)the nature of the worker’s pre-injury employment;
(iii)the worker’s age, education, skills and work experience;
(iv)the worker’s place of residence;
(v)any plan or document prepared as part of the return to work planning process;
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b)regardless of whether—
(i)the work or the employment is available; or
(ii)the work or the employment is of a type or nature that is generally available in the employment market;”
184The definition is an objective test which considers a worker’s current suitability for work taking into account the matters set out in (a)(i)–(vi) of the definition.
185Consistent with the reasoning in Harris v DJD Earthmoving Pty Ltd[80] the Court is required to consider what jobs the plaintiff might, in the foreseeable future, be able to do on a consistent and regular basis, allowing for such improvement as might be thought likely or possible after undertaking relevant programs, treatment and education.
[80][2016] VSCA 188 at [49]
186The Court also has to consider all of the plaintiff’s relevant circumstances.[81] Such circumstances include the plaintiff’s training and experience as well as whether the plaintiff has the potential to retrain and whether she has transferable skills.[82]
[81]Richter v Driscoll [2016] VSCA 142 at [106]
[82]Akbari v Victorian Workcover Authority [2022] VSC 84 at [58]-[61]
187It is clear that the definition of suitable employment requires a holistic enquiry. It is not merely an exercise in ticking boxes. In Akbari, the Court said there may be situations where a worker had only ever worked in one type of job but could no longer work in that capacity. It was said that a worker might nonetheless have a current work capacity for other employment despite having no previous experience in such a role, and the example was given of employment as a bank teller which might be suitable employment for a person who had worked as a real estate agent.[83]
[83]At [61]
188If the plaintiff does not have the capacity to engage in “suitable” employment, then there is no need to determine the plaintiff’s “without injury” earning capacity, or whether she establishes the loss of earning capacity threshold or the permanent loss of earning capacity threshold.
The Plaintiff’s evidence as to capacity, suitable employment and retraining
189The plaintiff’s evidence is set out above and will not be repeated here.
190In summary she said that she was physically incapable of working as a Receptionist or Medical Receptionist because of neck and right shoulder pain. She said that her English and computer skills were not good enough to meet either the Receptionist or Medical Receptionist roles and whilst she was willing to undertake a Medical Secretary course identified in the Recovre Report, she said she would need to improve her English before she could undertake any proposed courses.
191The plaintiff said in her oral evidence that her age, 56 years, would bar her from improving her English enough to retrain for and perform the Receptionist or Medical Receptionist roles.
192She did not directly address the Information Officer role.
The Plaintiff’s submissions
193Senior Counsel accepted the roles of Information Officer, Receptionist and Medical Receptionist were “pretty low-key jobs” in terms of physical requirements.[84]
[84]T114, L22-23
194Counsel for the plaintiff drew a distinction between the English-speaking environments and requirements of the Sterilisation Technician role and the other roles recommended by the VWA. It was said that the roles suggested by VWA as suitable employment were public facing roles which required dealings with a broad range of people who might have varying degrees of English proficiency themselves.
195With reference to Richter v Driscoll,[85] the plaintiff submitted that “suitable employment” traversed beyond matters of physical capacity and included a number of factors including the worker’s age, education, skills and work experience.[86]
[85][2016] VSCA 142
[86]T114, L16-17
196The plaintiff submitted that the Court should not look beyond the three roles put forward by the VWA when assessing whether the plaintiff has capacity for suitable employment.[87]
[87]T112, L7-9
197The plaintiff emphasised that the Recovre report said that the roles were suitable subject to rehabilitation and training[88] and stated that the plaintiff required continued English language and literacy training and computer skills refreshers.
[88]T108, L6-16
198The plaintiff referred to the role of Medical Receptionist which required English training and further medical receptionist training which would require the plaintiff to reach a good level of English proficiency.[89]
[89]T128, L21-23
199When taking into account the reasonableness of the worker’s attempts to participate in rehabilitation and retraining under s325(2)(g), it was submitted the Court should take into account that the plaintiff is 56 years old, is injured, has trouble with reading and writing, and is taking non-prescription medication.[90]
[90]T109, L 26-29
The VWA’s submissions
200The VWA relied upon the opinion of Dr Slesenger in his report of 15 December 2023, as he provided a detailed analysis of each of the proposed roles leading to the conclusion the plaintiff has capacity for them.
201The VWA also relied on the Medical Panel Opinion that there was capacity for suitable employment generally. Counsel acknowledged the Medical Panel did not comment specifically on the jobs relied upon by the VWA.[91]
[91]T86, L4-17
202The VWA placed emphasis on the importance of the opinion of the treating physiotherapist, Mr Robinson, as to work capacity. The VWA submitted Mr Robinson foreshadowed the potential for improvement in capacity restrictions,[92] such that “These may change with further treatment and graded activity and exercise however return to functional status to complete pre-injury duties appears unlikely at this stage”.[93]
[92]T87, L23-25
[93]Defendant Exhibit D15, DCB 323
203With regard to the plaintiff’s reports, the VWA submitted particular attention should be given to the issue of whether Dr Horsley and Dr Watapaldeniya had sufficiently delineated between left and right arm consequences, and whether any undue or excessive reliance had been placed on the “plaintiff’s self professed very low level of English proficiency.”[94]
[94]T90, L9-13
204The VWA effectively submitted that Dr Padmasekara had failed to disaggregate the various conditions when he opined that the plaintiff was incapacitated for work.[95]
[95] T91, L22-29
Findings on pecuniary loss
205It was not disputed that the plaintiff does not have the capacity to return to her pre-accident employment.
206The opinions of medical practitioners alone are not determinative on the issue of the plaintiff’s fitness for particular jobs or on the issue of loss of earning capacity more generally.
207I do not accept the VWA’s submission regarding Mr Robinson’s opinion on work capacity. It failed to take into account the fact that Mr Robinson qualified his opinion when he said that the degree of future improvement was uncertain and the prognosis for full recovery was unlikely.
208In relation to the plaintiff’s physical capacity to undertake the three jobs identified by the VWA, I prefer Dr Horsley’s analysis over that of Dr Slesenger.
209The roles identified are all “front facing” roles and require a high degree of English proficiency.
210I accept the plaintiff’s reports of ongoing pain with regular flare-ups. I accept that her levels of ongoing pain would prevent her from undertaking suitable employment due to her right arm impairment.
211The Recovre report identified three roles. It said that the plaintiff required continued English language and literacy training and computer skills refreshers. It was said the training information relevant to the outlined administrative role had been included in the appendices to the report. However, when one turned to the appendices section the following was noted: “Ms Bodiyabaduge is already engaged with and attending appropriate English language and literacy training thus these types of courses will not be outlined here.”[96]
[96]Defendant Exhibit D6, DCB 153
212The only courses attached or contained in the appendices were:
· a medical secretary course which dealt with medical terminology, the use of the medical package Genie – a software package for specialists and an audio-typing package. One purpose of the course was to explore at-home transcription work. The course also noted that a specialist’s medical secretary may also supervise reception staff and it was said that therefore a knowledge of reception duties as well as medical administrative skills was imperative.
· the other course was an “Intermediate Computers: Introduction to MS Office 2010 – Windows 7 course”. No details were included in the annexure other than to say it was to improve basic computer skills and covered Windows 7, Microsoft, basic Microsoft Excel, and basic Microsoft Publisher.
213It is difficult to see how either of those courses would be of any assistance to the plaintiff in this case.
214I accept the evidence that the plaintiff cannot be retrained for the three jobs relied upon by the VWA. Each of the jobs required intense face-to-face interaction with the public and required a high degree of English proficiency.
215I accept that the plaintiff has called credible evidence which establishes a prima facie case that she has no present capacity for suitable work. Consequently, the evidentiary onus shifts to the defendant to show the existence of “suitable employment”. I find that the defendant has not discharged that onus.[97]
[97]Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120 at [115]
216I find that the plaintiff does not have the capacity to return to work in any of the three jobs relied upon by the VWA. I accept the plaintiff’s evidence that she is unable to perform that work because of her right arm impairment. I also accept that she does not have the English language skills to perform the roles and does not have the capacity to retrain in English to the level of proficiency required for the three jobs.
217Whilst there may be a myriad of other jobs that could be considered suitable employment, the Court’s consideration is restricted to the three roles suggested by the VWA.
Disposition
218The plaintiff is successful in respect of her right arm claim. Leave will be granted to commence a proceeding for loss of earning capacity damages. She also has leave to commence proceedings for pain and suffering damages.[98]
[98]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
219Having found that the plaintiff is successful in relation to the right arm claim, it is not necessary for the Court to determine her application relating to the left arm.
220The parties are requested to provide minutes of consent, including Orders for costs, within seven days.
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