Ciardulli v Victorian WorkCover Authority
[2018] VCC 630
•10 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-04464
| ELISEO CIARDULLI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 April 2018 | |
DATE OF JUDGMENT: | 10 May 2018 | |
CASE MAY BE CITED AS: | Ciardulli v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 630 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to bilateral shoulders – rotator cuff tear – pain and suffering conceded by defendant – loss of earning capacity – suitable employment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; Accident Compensation Act 1985
Cases Cited:Lu v Mediterranean Shoes Pty Ltd & Ors [2000] VSCA 65; Woolworths Ltd v Warfe [2013] VSCA 22; Carbone v Toyota Motor Corporation Australia Ltd [2017] VSCA 249; Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Darnley v Victorian WorkCover Authority [2016] VCC 289; Zammit v McIntyre Steel Industries (Vic) Pty Ltd [2018] VCC 115; Jurokouski v Windsor Caravans Pty Ltd [2015] VCC 1800
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms M Tait | Zaparas Lawyers |
| For the Defendant | Mr D Churilov | Hall & Wilcox |
HER HONOUR:
Preliminary
1 Mr Ciardulli suffered injuries to his left shoulder, right shoulder and right elbow whilst working for the defendant as a car detailer from August 2013 until late 2014. He has since underdone two surgical procedures to his right shoulder, and has been unable to return to his pre-injury duties. Mr Ciardulli is currently working 20 hours per week in alternative, office-based duties, which he claims, due to his ongoing pain, is his maximum work capacity.
2 The defendant accepts that Mr Ciardulli suffered these injuries during the course of his employment. At the commencement of the hearing, the defendant conceded that Mr Ciardulli suffers serious pain and suffering consequences as a result of both his left shoulder impairment and his right shoulder impairment. However, the defendant disputes that these impairments have caused Mr Ciardulli to suffer serious consequences in respect of his loss of earning capacity. Further, the defendant disputes that Mr Ciardulli can aggregate his left and right arm injuries so as to be assessed as the one body function.
3 In order for Mr Ciardulli to be entitled to claim pecuniary loss damages at common law, he must satisfy the requirements contained within s325(2)(e) of the Workplace Injury Rehabilitation Act 2013 (“WIRC Act”). That is, based upon his pre-injury earning capacity, Mr Ciardulli must establish that he presently suffers a loss of earning capacity of at least 40 per cent, and that this loss will continue on a permanent basis.
4 Mr Ciardulli was called to give evidence and was cross-examined. Also in evidence was an affidavit from his wife. Medical reports and other material were also tendered. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
5 For the reasons which follow, I am satisfied that, as a consequence of the impairment from his left and right shoulder injuries, Mr Ciardulli suffers a permanent loss of earning capacity of at least 40 per cent, such that he should be granted leave to commence common law proceedings for both pain and suffering and pecuniary loss damages.
The plaintiff’s working life prior to suffering his shoulder injuries
6 Mr Ciardulli initially left school at 16 years of age and thereafter completed a painting and decorating apprenticeship. He then worked as a painter and decorator for a short time, before returning to school to complete his Year 12 studies.
7 Upon completing Year 12, Mr Ciardulli enlisted in the Australian Army, where he worked for several years, including on overseas postings. Mr Ciardulli was medically discharged on the basis that he was suffering Post-Traumatic Stress Disorder (“PTSD”).
8 In approximately 2006, Mr Ciardulli commenced employment with Vodafone as a part-time sales consultant. He was subsequently promoted to assistant store manager. Mr Ciardulli said that most of the work he undertook at Vodafone comprised sales work, but that his role also involved, amongst other things, assigning duties to other team members, assisting with stocktakes, maintaining proficient knowledge of telecommunications products, rostering and banking. After approximately six years in this role, Mr Ciardulli was made redundant.
9 In approximately 2011, Mr Ciardulli sought to establish his own car detailing business, Radiant Rides. He said that he performed car detailing for family and friends. In cross-examination, Mr Ciardulli initially said that his business did not make any sales and that he had not kept any business records. However, upon being shown his taxation returns for the financial years ended 30 June 2012 and 30 June 2013, Mr Ciardulli conceded that he had earned some income from this business. Mr Ciardulli said that he had not kept receipts, and was unable to explain the basis upon which he derived the gross income he then claimed to have earned from this business in his taxation returns. Mr Ciardulli said that he was of the understanding that he was not required to pay GST to the government, as his business had not earned enough money.
10 I considered the evidence Mr Ciardulli gave in relation to his business to be vague, and I found him to be uncooperative in the questions he answered in cross-examination.
11 Mr Ciardulli said that he stopped running Radiant Rides at about the time he commenced his employment with the defendant, as the business had not been successful.
12 From approximately 2012 until 2013, Mr Ciardulli worked for MLN as a sales and technical manager. He said that his duties included troubleshooting all computer-related problems, maintaining an accurate log of maintenance and resources, installing software, setting up hardware equipment and maintaining a high level of customer support.
The plaintiff’s injuries and the consequences to him
13 On 13 September 2013, Mr Ciardulli commenced his employment with the defendant as a car detailer. He said that he worked full-time with the defendant, and was also offered and subsequently undertook overtime shifts.
14 Mr Ciardulli said that his work with the defendant was fast-paced and repetitive, and that it involved the use of both his arms in carrying equipment and operating machines on vehicles at and above shoulder level.
15 On 21 August 2014, Mr Ciardulli was using a rotary polisher to detail a car and said that, whilst trying to control the polisher, he suffered an injury to his left shoulder.
16 The following day, Mr Ciardulli said that his left shoulder pain worsened, such that he consulted his general practitioner at the Coolaroo Clinic, and was prescribed anti-inflammatories.
17 Mr Ciardulli said that he was only off work for one week, before subsequently returning on restricted duties. However, Mr Ciardulli said that he was still required to perform many of his normal duties, including washing and drying large SUVs, which often involved him working at and above shoulder height.
18 Mr Ciardulli consulted occupational physician, Dr Joseph Slesenger, who was also at the Coolaroo Clinic. In October 2014, Dr Slesenger referred Mr Ciardulli to orthopaedic surgeon, Mr James Chiu. Imaging was subsequently performed and Mr Chiu diagnosed Mr Ciardulli as suffering significant tendinopathy within the left long head of his biceps tendon. Mr Chiu then arranged for Mr Ciardulli to undergo cortisone and local anaesthetic injections into his left shoulder.
19 After approximately four months, Mr Ciardulli said he began to experience aching in his right shoulder and right elbow. He consulted Mr Chiu in relation to these symptoms, who arranged for Mr Ciardulli to undergo injections into his right shoulder and right elbow.
20 In late 2014, Mr Ciardulli was certified as unfit to work. However, in February 2015, he returned to work on light duties in the defendant’s office. He initially worked four hours per day, three days per week, before increasing to four hours per day, five days per week in 2016. Mr Ciardulli said that, at this time, his work restrictions also included that he not drive for more than 30 minutes, that he take breaks as needed and that he only perform desk work. He said that much of his time was spent removing staples from documents in order to then scan them, but that he also assisted in the organisation of warranties provided to customers.
21 On 26 February 2016, Mr Chiu performed a right shoulder arthroscopic subacromial decompression and biceps tenodesis on Mr Ciardulli, due to the persistent pain he was experiencing in his right shoulder.
22 Following the surgery, however, Mr Ciardulli continued to experience pain and stiffness in his right shoulder. On 24 May 2016, upon review, Mr Chiu noted that Mr Ciardulli’s external and internal rotation was poor and that he had not regained his forward flexion and abduction. Mr Chiu therefore considered it appropriate to perform further surgery on Mr Ciardulli.
23 On 21 July 2016, Mr Chiu performed a manipulation under general anaesthetic, together with an arthroscopic capsulectomy.
24 Following the second surgical procedure, Mr Ciardulli received further physiotherapy treatment, as well as pain management advice.
25 In his post-operative reviews, Mr Chiu noted an improved range of motion, such that, by 1 December 2016, he described the range of motion in Mr Ciardulli’s right shoulder as “excellent”. When this comment was put to him in cross-examination, Mr Ciardulli agreed that his shoulder had improved considerably following the second surgery. However, he did not entirely agree that his range of motion, as at December 2016, was excellent.
26 In approximately October 2016, Mr Ciardulli attempted to work in an IT position for the defendant for about three weeks. During this period, he said that he increased his working hours to 25 hours per week. However, Mr Ciardulli said he was not able to cope with the job responsibilities in this role, as his computer skills were inadequate. Mr Ciardulli also said that he could not physically cope with the extra hours, due to increased arm pain.
27 In February 2017, Mr Ciardulli’s employment with the defendant was terminated on the basis that there were no more light duties available to him. At that time, he was working 20 hours per week in the defendant’s office.
28 In addition to his ongoing right shoulder pain, Mr Chiu also treated Mr Ciardulli for his right elbow lateral epicondylitis. In June 2017, Mr Ciardulli underwent an ultrasound-guided cortisone local anaesthetic injection into his right elbow which provided him with some temporary relief.
29 In mid-2017, Mr Ciardulli also participated in a pain management program, which resulted in an increase in his pain medication. In approximately early May 2017, Mr Ciardulli was offered an opportunity to work with his friend, Mr Antonio Massari, who owns an on-line store, selling car detailing products and appliances to professional detailers. In his second affidavit sworn 20 March 2018, Mr Ciardulli said that he commenced with Mr Massari in August 2017, and that, as it was initially a trial period, he was not paid until October 2017. However, at the commencement of his oral evidence, Mr Ciardulli corrected himself and said that he was first paid in August 2017, prior to which he had worked for a few months without getting paid.[1]
[1]I note that at a medico-legal examination in July 2017, Dr Doig obtained a history from Mr Ciardulli that he had not worked since being made redundant in February 2017, and that he was then looking for work. It is difficult to reconcile Mr Ciardulli’s oral evidence with this aspect of Dr Doig’s report. I note that this matter was not put to Mr Ciardulli in cross-examination.
30 In his second affidavit, Mr Ciardulli said that he earned $300 per week and that his wage is paid to him in cash. However, in cross-examination, he said that he initially earned $450 or $440 per week. Mr Ciardulli said that he was unable to recall when his pay had reduced to his current rate, but that it had happened gradually over time, with one reduction, possibly, at Christmas time. Mr Ciardulli said that he understood Mr Massari’s business was not going well and that his friend could not afford to pay him anything greater.
31 Mr Ciardulli said that he did not keep a record of the amount he earned each week, and that, as he was not provided with payslips and did not always bank his salary, he was unable to determine the amount by checking his bank records. Mr Ciardulli said that, in the event he earned over the tax-free threshold and needed to lodge a taxation return, it would be “a bit of a challenge” to declare the exact amount that he has been earning.
32 In his second affidavit, Mr Ciardulli stated that his current employer was not prepared to come to court to give evidence in his case. He stated that he did not know the reason for his refusal. However, in cross-examination, Mr Ciardulli stated that he had not asked Mr Massari to give evidence as to his working arrangements. It is difficult to reconcile this discrepancy in his evidence.
33 In giving evidence as to his current financial remuneration, I found Mr Ciardulli to have been evasive and, at times, uncooperative. As such, I have reservations regarding this aspect of his evidence.
34 Mr Ciardulli said that his present work duties are mainly computer-based and that they involve replying to customer inquiries by email and phone, printing out orders, ensuring the website’s payment platform is operating, installing software updates and writing reviews, which he subsequently places on the company’s Facebook page.
35 Mr Ciardulli said that he works four hours per day, five days per week, and that his job is very flexible. He said that he can take breaks when required and that he works at his own pace.
36 Mr Ciardulli said that whilst his duties are office-based and do not involve any lifting or the strenuous use of his arms, he does not believe that he can work more than four hours per day. By the end of a four hour shift, Mr Ciardulli said that he has increased shoulder pain, and that when he gets home from work, he lies down on the couch or in bed and takes Endone or Panadeine Forte.
37 Mr Ciardulli said that he suffers pain in his right shoulder, left shoulder and right elbow on a daily basis. He said that the pain he experiences in his right shoulder is the worst but that, on some days, his left shoulder pain is just as bad. Mr Ciardulli said that his shoulder pain is aggravated by excessive or repetitive use of his arms. He said that he has good and bad days and that, on the bad days, his shoulder pain is severe and he can do very little. Mr Ciardulli said that his pain levels are unpredictable.
38 Mr Ciardulli said that whilst his right elbow pain persists, it does not cause him any restriction of movement nor any significant restrictions in his activities of daily living.
39 Mr Ciardulli last attended Mr Chiu in November 2017. At that time, Mr Chiu noted that Mr Ciardulli maintained a range of motion in his right elbow and right shoulder, but with discomfort. Mr Chiu noted that conservative management had been “working to maintain his current level of function and his current modified work duties”. Mr Chiu considered that, as a consequence of his ongoing symptoms, Mr Ciardulli would be unable to return to his pre-injury duties, but would be able to perform modified work duties, including desk work.
40 Mr Ciardulli’s current general practitioner is Dr Minh-Ha Nguyen. In a report dated 9 June 2017, Dr Nguyen noted that Mr Ciardulli suffered right shoulder adhesive capsulitis, left shoulder subacromial bursitis and right lateral epicondylitis. Dr Nguyen was of the opinion that Mr Ciardulli was not fit for his pre-injury duties, but that he could work four hours, five days per week, with driving up to 30 minutes. Dr Nguyen agreed with Mr Chiu’s certification that Mr Ciardulli was fit to perform desk work. Dr Nguyen was also of the opinion that Mr Ciardulli should avoid any lifting over five kilograms, any reaching forward, any above shoulder work, and that he should keep his arms close to his body whilst avoiding repetitive elbow movements.
41 In a subsequent report dated 4 April 2018, Dr Nguyen noted that Mr Ciardulli was continuing to experience pain whilst in his current employment. He then agreed with the work restrictions identified by Dr Slesenger in his report dated 9 February 2018.
42 Mr Ciardulli said that he takes two to three Endone daily, one to two Panadeine Forte most days, and three to four Nurofen per week for his shoulder pain. He also takes Nexium to manage the constipation and stomach pain which he relates to the strong pain-killing medication that he is taking.
43 Mr Ciardulli said that his sleep is interrupted, and that he will wake up if he rolls on to his right shoulder. He said that he typically wakes four to five times a night, that he gets on average five to six hours of sleep a night, and that this causes him to feel fatigued in the mornings.
44 In support of his claim, Mr Ciardulli relied upon an affidavit of his wife, Mrs Neslihan Ciardulli. In her affidavit, Mrs Ciardulli detailed the restrictions her husband experiences in terms of household and domestic duties, as well as playing with their young son. Mrs Ciardulli confirmed that her husband often wakes in the night, and that he appears drowsy from his medication.
45 Mrs Ciardulli confirmed that her husband is now working four hours a day, five days a week. She stated “he usually brings home $300 in cash per week”. I note that Mrs Ciardulli did not state whether or not her husband had always been paid $300 a week, whether it had ever been $450 a week, or whether any or all of it was ever deposited in their bank account. As such, I consider this aspect of her evidence to be vague and of little assistance to me.
Medico-legal evidence
46 Although Mr Ciardulli consulted occupational physician, Dr Slesenger, for treatment purposes, his solicitors requested that he examine Mr Ciardulli for the purpose of providing medico-legal reports in February 2017 and February 2018.
47 In his report dated 14 February 2017, Dr Slesenger noted that Mr Ciardulli was suffering adhesive capsulitis in his right shoulder, with restricted movements and reduced function. He also noted that Mr Ciardulli suffered ongoing left shoulder pain, with restricted movements and reduced function, together with lateral epicondylitis in his right elbow.
48 Dr Slesenger was of the opinion that Mr Ciardulli was unable to return to his pre-injury duties, given the inherent manual handling and postural requirements. In relation to alternative duties, Dr Slesenger considered the following restrictions were required:
· no overhead shoulder reaching;
· no push, pull, carry or lift over five kilograms;
· no repetitive shoulder or elbow work;
· four hours a day, five days a week.
49 In February 2018, following a re-examination, Dr Slesenger provided a report dated 6 February 2018. He noted that Mr Ciardulli continued to suffer residual right shoulder pain, which was worse than the pain on his left side. Dr Slesenger also noted that Mr Ciardulli had difficulty with forward reaching, over shoulder reaching and lying on his right side. In relation to his right elbow pain, Mr Ciardulli had a restricted range of movement and difficulty turning, gripping, pushing and pulling.
50 Dr Slesenger noted that Mr Ciardulli was presently taking Endone, Panadeine Forte and Nurofen. Dr Slesenger stated that his medication caused drowsiness and sleepiness.
51 Dr Slesenger then detailed the work Mr Ciardulli was performing with his current employer. He noted that such job tasks were desk-bound and computer-based. Dr Slesenger noted that Mr Ciardulli travelled 30 minutes between his home and work each day, and was of the opinion that whilst he was coping with the job tasks, he was unable to increase his hours due to his symptoms and the side effects from his medication. Further, Dr Slesenger noted that Mr Ciardulli was having difficulty completing job tasks, due to the persistence of his pain and the aggravation of symptoms he experienced as a result of performing the computer-based tasks.
52 As a consequence of his right shoulder injury in isolation, Dr Slesenger then stated that, in his opinion, Mr Ciardulli retained the capacity for alternative duties with the following restrictions, namely:
· avoid overhead reaching;
· avoid push, pull, carry or lift over five kilograms;
· avoid repetitive shoulder tasks;
· avoid sustained forward reaching.
53 Dr Slesenger considered that the same restrictions were required as a consequence of Mr Ciardulli’s left shoulder injury. In relation to his right elbow injury, Dr Slesenger considered that Mr Ciardulli needed to avoid repetitive elbow work, sustained forward reaching and lifting greater than five kilograms.
54 Dr Slesenger stated that he had advised Mr Ciardulli against increasing his work hours as, he considered it unlikely that Mr Ciardulli would be able to maintain his attendance on a consistent and reliable basis if his hours were increased.
55 Mr Ciardulli’s solicitors arranged for him to be examined by orthopaedic surgeon, Mr Ash Chehata, in July 2017. In his report dated 11 August 2017, Mr Chehata detailed the circumstances in which Mr Ciardulli suffered injuries to his left shoulder, right shoulder and right elbow, together with the treatment he had subsequently received. Following an examination of Mr Ciardulli, Mr Chehata diagnosed him as suffering the following injuries:
· In his right shoulder, a partial thickness tear at the supraspinatus, severe tendinopathy changes in the long head of biceps requiring a tenotomy, complicated by severe adhesive capsulitis.
· In his left shoulder, tendinopathy with impingement and subacromial bursitis.
· In his right elbow, common extensor tendinopathy/lateral epicondylitis.
56 Mr Chehata considered that, as a consequence of Mr Ciardulli’s right shoulder injury, his capacity for employment was reduced, in that he was unable to perform pre-injury employment. It was noted that Mr Ciardulli was able to perform administrative duties, but that he could not increase his hours due to ongoing right shoulder pain. Mr Chehata stated that, in his opinion, it would be ideal if Mr Ciardulli could work part-time, on alternate days, to allow for resting days off.
57 In a supplementary report dated 27 March 2018, Mr Chehata considered updated medical material and Mr Ciardulli’s further affidavit, before then agreeing with Dr Slesenger’s assessment that Mr Ciardulli’s levels of working hours and duties were appropriate. It was noted that Mr Ciardulli was currently able to work a maximum of four hours per day, by which time he was exhausted and unable to perform normal activities of daily living.
58 The defendant arranged for Mr Ciardulli to be examined by occupational physician, Dr Umberto Boffa, on numerous occasions between April 2015 and March 2018. In his first report dated 16 April 2015, Dr Boffa detailed the circumstances in which Mr Ciardulli suffered his injury, and the treatment he subsequently received, before noting that, at that time, Mr Ciardulli was working four hour shifts, three days per week. Dr Boffa considered that Mr Ciardulli should be reviewed over time, to determine whether or not he would be able to return to full-time hours.
59 On 24 April 2015, Dr Boffa attended Mr Ciardulli’s work site with the defendant to assess alternative duties. Dr Boffa considered that Mr Ciardulli was not fit to return to his pre-injury duties, but thought that he was fit for alternative office-based duties, which involved staple removal, scanning documents and inputting data regarding warranties. Dr Boffa recommended that Mr Ciardulli could increase his hours over a six week period, so as to eventually work eight hours, five days a week. Dr Boffa then recommended that over a further six week period, Mr Ciardulli could undertake the gradual reintroduction of detailing duties, such that by week 12 he would have returned to full-time work, performing his pre-injury duties.
60 In August 2015, Dr Boffa re-examined Mr Ciardulli. In his report dated 5 August 2015, Dr Boffa noted that Mr Ciardulli was then working five to six hour shifts, four to five days per week, and that he was performing alternative office-based duties. At that time, Dr Boffa diagnosed Mr Ciardulli as suffering bilateral work-related frozen shoulders and mild right elbow lateral spondylitis. Dr Boffa doubted whether or not Mr Ciardulli would return to his pre-injury duties and said that he would need to remain on duties in which he avoided repetitive shoulder elevation, pushing, pulling, lifting or carrying more than five kilograms.
61 In March 2018, Dr Boffa examined Mr Ciardulli, noting that, at that time, he was performing computer-based website work for 20 hours per week. Dr Boffa noted that Mr Ciardulli complained of ongoing bilateral shoulder and right elbow pain. He considered that Mr Ciardulli suffered bilateral post-surgical painful shoulder rotator cuff injuries, with resolved capsulitis. It was also noted that he suffered right lateral elbow epicondylitis. Dr Boffa was of the opinion that Mr Ciardulli was currently fit for the work that he was doing, but that he would also be fit for “full time office-based duties not involving prolonged computer use”.
62 The defendant also arranged for Mr Ciardulli to be examined by orthopaedic surgeon, Dr Graeme Doig, in July 2017. In his report dated 1 August 2017, Dr Doig detailed the circumstances in which Mr Ciardulli had suffered his injuries at work, and the treatment he had subsequently received. Dr Doig noted that Mr Ciardulli had worked light duties until February 2017, but that he had not worked since being terminated by the defendant.
63 Dr Doig diagnosed Mr Ciardulli as suffering bilateral subacromial bursitis/impingement/rotator cuff syndrome requiring surgical intervention on the right side, with the post-operative development of a frozen shoulder requiring further intervention. It was also noted that Mr Ciardulli suffered lateral epicondylitis in his dominant right elbow. Dr Doig then considered that Mr Ciardulli was capable of undertaking suitable employment, but said that he would require a five kilogram lifting, pushing and pulling restriction at or below waist height with no more than 10 kilograms when using both arms. Dr Doig also stated that Mr Ciardulli would have limited use of his arms overhead, that he would need breaks from long distance driving and that he would find it easier to drive a vehicle with automatic transmission.
Credibility
64 The defendant made extensive submissions regarding Mr Ciardulli’s credibility. In closing submissions, I was referred to numerous aspects of Mr Ciardulli’s evidence, which were said to be demonstrative of the evasive, non-responsive or inconsistent manner in which he gave his evidence.
65 As stated above, I had reservations as to Mr Ciardulli’s evidence in relation to the record-keeping in his former car detailing business, and also in relation to his current earnings.
66 Mr Churilov invited me to draw an adverse inference from Mr Ciardulli’s failure to tender evidence from Mr Massari regarding his current working arrangements. There is clearly an inconsistency between Mr Ciardulli’s affidavit, in which he said that Mr Massari was not prepared to give evidence, and his oral evidence, in which he said that he had not asked Mr Massari to give evidence. In circumstances where Mr Massari is paying Mr Ciardulli’s wage in cash, I do not find it surprising that Mr Massari, if asked, would be reluctant to provide an affidavit in legal proceedings. I am therefore unwilling to draw an adverse inference from the absence of any evidence being adduced from Mr Massari.
67 Save for those reservations, I otherwise accepted Mr Ciardulli as a reliable witness.
68 The defendant admitted that video surveillance had been obtained of Mr Ciardulli, none of which it then relied upon. I can infer that such surveillance would not have assisted the defendant’s case.
69 I also note that, at the commencement of the proceedings, the defendant conceded that Mr Ciardulli suffered serious pain and suffering consequences in respect of both his right shoulder and left shoulder injuries.
70 None of the doctors have suggested that Mr Ciardulli has exaggerated his symptoms and complaints, and findings on examination have been consistent with him suffering an ongoing restriction of movement in his shoulders.
71 In view of the above, I accept Mr Ciardulli’s evidence as to his current pain levels and the restrictions he suffers.
Can the plaintiff aggregate his right and left arm injuries as one body function?
72 The plaintiff submitted that his right shoulder, left shoulder and right elbow injuries could be combined to constitute the one body function – that is, the body function of manual dexterity.
73 The defendant disputed this submission, and relied upon the Court of Appeal authority of Lu v Mediterranean Shoes Pty Ltd & Ors.[2] In that case, the plaintiff had suffered a right elbow injury during the course of his employment, in approximately July or August 1995, before subsequently injuring his right shoulder, in an incident which occurred on 4 September 1995.
[2][2000] VSCA 65
74 The Court of Appeal ultimately held:
“… that the two injuries in question impaired two separate body functions, namely, the plaintiff's right shoulder area and his right elbow respectively. Consequently, they cannot be relevantly aggregated.[3]
[3]Ibid at [23]
75 I note, however, that Buchanan JA and Chernov JA, both suggested that an injury to the shoulder and an injury to the elbow could be aggregated if they were the result of the one event or incident. [4]
[4]Ibid at [4], [27]
76 In Lu’s case, the separate injuries arose in two separate causes of action. In such circumstances, I consider that Lu is distinguishable from this case, on the basis that the plaintiff claims the right shoulder, left shoulder and right elbow injuries came on over the course of employment, as a consequence of the repetitive and fast-paced nature of his car detailing duties. I consider that the Court of Appeal left open the possibility of aggregating two or more injuries, provided they arose in the same cause of action, and together caused the same impairment of the one body function.
77 The defendant referred me to the Court of Appeal decisions in Woolworths Ltd v Warfe[5] and Carbone v Toyota Motor Corporation Australia Ltd[6]. In Warfe, the plaintiff suffered left and right elbow injuries and, in Carbone, the plaintiff suffered left and right shoulder injuries. However, I note that in neither of these claims did the plaintiff seek to combine both arm injuries on the basis that together they constituted the body function of manual dexterity.
[5][2013] VSCA 22
[6][2017] VSCA 249
78 In circumstances where the plaintiff worked in a manual job as a car detailer, I am satisfied that the functioning of both arms is an essential element of his job, such that it is therefore appropriate to combine them as the one body function. I have previously adopted this approach in the judgments of Darnley v Victorian WorkCover Authority[7] and Zammit v McIntyre Steel Industries (Vic) Pty Ltd[8] It is also in accordance with the decision of his Honour Judge Jordan in Jurokouski v Windsor Caravans Pty Ltd.[9]
[7][2016] VCC 289
[8][2018] VCC 115
[9][2015] VCC 1800
79 Notwithstanding the defendant’s submission that it was impermissible for Mr Ciardulli to rely upon manual dexterity as the one body function, the defendant conceded that it would not change the outcome of the case if Mr Ciardulli’s left arm and right arm were assessed separately, on the basis that the doctors agree that the restrictions in Mr Ciardulli’s right and left arm are essentially the same.
Loss of earning capacity
80 To succeed in his application, Mr Ciardulli has the onus of satisfying me that, as at the date of hearing, as a consequence of his bilateral arm injuries, he has sustained a loss of earning capacity of 40 per cent or more, and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what Mr Ciardulli is capable of earning, whether in suitable employment or not.
81 In determining Mr Ciardulli’s claim for loss of earning capacity, I must compare what he is currently earning, or capable of earning in suitable employment, with his pre-injury earning capacity. To determine his pre-injury earning capacity, I must decide which of the following scenarios most fairly reflects Mr Ciardulli’s earning capacity, had he not suffered the injury:
“(a)the gross income that Mr Ciardulli earned (or was capable of earning) from personal exertion in the three years before the injury;
(b)the gross income that Mr Ciardulli would have earned (or would have been capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.”[10]
[10]s134AB(38)(f) of the ACA and s325(2)(f) of the WIRC Act
82 Mr Ciardulli did not work with the defendant for a full financial year prior to suffering his work-related injuries. He claimed that when he worked full-time, and did overtime, he earned $1,039 gross per week. It was then claimed that with incremental increases in the following three years, in accordance with annual Fair Work Commission increases, the figure which best reflected Mr Ciardulli’s without injury earning capacity, was $1,118.00 gross per week.
83 The defendant did not dispute this amount.
84 Applying the statutory test to this gross weekly sum, for Mr Ciardulli to succeed in his application, I must be satisfied that he is incapable of earning more than $671.00 gross per week in suitable employment, and that such a restriction on his earning capacity will be permanent.
85 What constitutes “suitable employment” is an objective test, which looks at the worker’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience, and whether the work is a reasonable distance from the plaintiff’s place of residence.[11] In Barwon Spinners Pty Ltd & Ors v Podolak,[12] the Court of Appeal stated that such an assessment is concerned with a plaintiff’s physical capacity for work, and is not concerned with whether employment will or will not be obtained.[13]
[11]Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33 at [25] and [28]
[12]Ibid
[13]Ibid at [27]
86 In the Court of Appeal decision of Harris v DJD Earthmoving Pty Ltd,[14] it was noted that, under s134AB of the Accident Compensation Act 1985,[15] the court must consider what work the plaintiff might, in the foreseeable future, be able to do on a regular and consistent basis.[16]
[14][2016] VSCA 188
[15]The equivalent provision to that being considered in this case under s325 of the WIRC Act
[16]Harris, at [49]
87 In this case, all the doctors agreed that, as a consequence of his bilateral shoulder injury, Mr Ciardulli cannot return to his pre-injury duties as a car detailer. As such, the issue for me to determine is what the plaintiff is capable of earning in alternative suitable employment.
88 Mr Ciardulli is presently working as a website administrator for 20 hours a week. The duties he performs in this role are consistent with the restrictions identified by each of the doctors. I am therefore satisfied that this constitutes suitable employment.
89 The real issue is whether Mr Ciardulli is working to his maximum capacity.
90 I accept Mr Ciardulli’s evidence that, at the end of a four hour shift, he suffers increased shoulder pain. I note that he has to take relatively strong medication, including Endone, to assist him with pain relief. I accept that he has to lie down when he gets home from work. I am also satisfied that Mr Ciardulli’s sleep is interrupted due to shoulder pain and that he often feels fatigued.
91 Dr Slesenger is an experienced occupational physician, as well as one of Mr Ciardulli’s treating practitioners. In such circumstances, I attach significant weight to his opinion that Mr Ciardulli is working to his maximum capacity, and that any attempt to work beyond 20 hours a week, would compromise his ability to attend work on a consistent and reliable basis. I note that Dr Nguyen and Mr Chehata are also of the opinion that Mr Ciardulli is working to his maximum capacity.
92 Mr Chiu did not expressly state the number of hours he considered that Mr Ciardulli could perform desk work. However, I infer from his comment that conservative management has been working to maintain his current level of function and current modified work duties, that Mr Chiu is supportive of Mr Ciardulli working only 20 hours a week.
93 Dr Boffa also stated that Mr Ciardulli is able to perform computer-based duties for up to 20 hours per week.
94 Dr Doig did not expressly comment on the number of hours that Mr Ciardulli could perform in suitable employment, but it can be inferred from his report that there would be no restriction on hours, provided the physical restrictions he identified were met. However, I note that in his report, Dr Doig did not refer to Mr Ciardulli only working 20 hours per week in light duties prior to being made redundant. Further, Dr Doig has not re-examined Mr Ciardulli since he commenced in his current position, working 20 hours a week. In such circumstances, I therefore prefer the other medical opinions to that of Dr Doig. I am satisfied that 20 hours is the maximum number of hours that Mr Ciardulli can work per week, as a website administrator, on a consistent and reliable basis.
95 As stated previously I have reservations regarding the actual income Mr Ciardulli earns in his current position. Mr Mighell conceded that it is not a realistic commercial rate, and accepted that, in assessing Mr Ciardulli’s current earning capacity, I should have regard to the hourly rate identified in the earnings figures identified by Flexi Personnel in a report dated 3 April 2018 and email dated 6 April 2018.
96 Flexi Personnel stated that an employee performing website administrator and associated duties, would be remunerated under the “Clerks-Private Sector Award”. Under that award, a Level 2, year 1 employee, is paid $21.29 gross per hour. Accepting that Mr Ciardulli can work a maximum of 20 hours in such suitable employment, he is therefore capable of earning $425.80 gross per week.
97 The defendant sought a response to this opinion from vocational assessor, Recovre. However, due to the late service of material in this matter by both the plaintiff’s and defendant’s solicitors, Recovre indicated that they were not in a position to respond within time, as to whether or not such an award applied to website administrators. Recovre instead stated that, in its opinion, the role of website administrator came under the broader category of ICT support technician, for which the average gross weekly wage was $1,200 per week. For a 38 hour week, this would equate to $31.58 gross per hour. Accepting that Mr Ciardulli can work a maximum of 20 hours in such suitable employment, he is therefore capable of earning $631.60 gross per week.
98 At a maximum of 20 hours per week as a website administrator, regardless of whether the appropriate hourly rate is that identified by Flexi Personnel, or the higher figure identified by Recovre, Mr Ciardulli would earn less than $671.00 gross per week, and thus would suffer a loss of more than 40 per cent.
99 The defendant submitted, however, that on the hourly rate contained in the Recovre report, the current weekly loss of only $39.40 per week, was so “minuscule” that I could not be satisfied that Mr Ciardulli would continue to suffer the requisite pecuniary loss on a permanent basis. It was submitted that I could take judicial notice that wages generally increase over time and that it therefore followed that such a small loss was not likely to persist into the foreseeable future.
100 Mr Mighell submitted that such an approach would lead to uncertainty and speculation in the assessment of loss of earning capacity claims. I was specifically referred to the Second Reading Speech from the Minister for WorkCover, at the time the Accident Compensation (Common Law and benefits) Bill was introduced to the Victorian Parliament on 13 April 2000. In relation to the loss of earning capacity test which was first introduced in this legislation, the Minister said as follows:
“Loss of earning capacity is to be measured by firstly comparing the worker’s income from personal exertion or capacity to earn income on a before- injury and after-injury basis. The focus time period for determining the capacity to income on a before-injury basis is limited to 3 years before the injury and three years after the injury in order to remove open-ended enquiries which may have varying degrees of speculative judgment.”[17]
[17]Victoria, Parliamentary Debates, Legislative Assembly, 13 April 2000, 1001-1011 (Mr Cameron, Minister for Workcover)
101 I reject Mr Churilov’s submission in relation to this, as I consider it would involve much speculation. I also consider it would be contrary to the requirements of s325(2)(e) of the WIRC Act and inconsistent with the manner in which Judges of this Court, and the Court of Appeal have approached the loss of earning capacity test since the equivalent provision was introduced in 2000.[18]
[18]Initially under s134AB(38)(e)(i), the equivalent provision is now s325(2)(e)
102 The role of website administrator is not the only position which could constitute suitable employment for Mr Ciardulli. The positions of facilities manager, warranties manager, showroom sales person and IT desk helper were also proposed by Recovre as suitable employment. Dr Slesenger stated that such roles may constitute suitable employment, provided a job specific worksite assessment was conducted to ensure that job tasks were consistent with Mr Ciardulli’s restrictions.
103 However, whether or not any or all of these jobs constitute suitable employment, I am satisfied, for the reasons stated above, that Mr Ciardulli can only work a maximum of 20 hours per week. That is, I consider Mr Ciardulli’s ongoing shoulder pain, which increases at the end of four hours of desk work, together with his need for strong pain medication and interrupted sleep, to be such that he would not be able to perform more than 20 hours work, in suitable employment, on a reliable and consistent basis
104 Having reached this conclusion, it necessarily follows that, if there is any job, in suitable employment, which Mr Ciardulli can perform for 20 hours a week, where the hourly rate is less than $33.55 per hour, he will satisfy the requisite 40 per cent loss.
105 Accordingly, based on the Earnings Report prepared by Flexi Personnel dated 3 April 2018, the hourly rates for these jobs, each of which may possibly constitute suitable employment for Mr Ciardulli, are all less than $33.55 per hour. As such, based upon those hourly rates, if Mr Ciardulli was able to perform any of these jobs for 20 hours a week, he would still suffer the requisite 40 per cent loss.
106 A similar result would be obtained when applying the figures contained in the Recovre report, save for the job of facilities manager. Recovre stated that, based upon wage information obtained from the Job Outlook government website, the average gross weekly earnings for a facilities manager were $1,438. Based on a 38 hour week, this would equate to $37.84 gross per hour. I note, however, that an overview of this position from the Job Outlook website is broader than just facilities manager and also includes hospitality, retail and service managers.
107 Flexi Personnel stated that, according to payscales.com.au, the average wage for an entry-level facilities manager is $26.50 gross per hour.
108 In its supplementary report, Recovre then stated that the facilities manager could earn in the range of $60,000-$120,000 per annum, depending on experience. As Mr Ciardulli had no such experience, I consider an annual wage of $60,0000 to be realistic. This then equates to a gross weekly wage of $1,153.84, and, based upon a 38 hour week, a gross hourly rate of $30.36.
109 Therefore, I am also satisfied that, if Mr Ciardulli obtained employment as a facilities manager, for 20 hours a week, he would earn $612.60 gross per week. At that rate, Mr Ciardulli would still suffer the requisite 40 per cent loss of earning capacity.
110 I am satisfied that this pecuniary loss is permanent and that it will continue through the foreseeable future.
111 Once the threshold of 40 per cent reduction in earning capacity test has been met, it is still necessary for me to consider whether the consequences for Mr Ciardulli meet the “very considerable” test.[19] Given my acceptance that Mr Ciardulli’s bilateral shoulder injury restricts him to working, at best, only 20 hours a week in suitable employment, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as very considerable.
[19]s325(2)(c)
112 I am therefore satisfied that Mr Ciardulli suffers a serious injury to his right and left arms, arising as a consequence of his employment with the defendant, and that the consequences are such that he should be granted leave to commence common law proceedings for pain and suffering and loss of earning capacity damages.
113 I will make the consequent orders.
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