Corkill v Victorian WorkCover Authority

[2021] VCC 1179

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-19-05579

MARTIN JOHN CORKILL	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2021
DATE OF JUDGMENT:	31 August 2021
CASE MAY BE CITED AS:	Corkill v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2021] VCC 1179

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Damages – serious injury – injury to the left shoulder –  opinion of the Medical Panel – binding nature of the opinion – opinion that the plaintiff has a residual capacity for a number of forms of suitable employment – calculation of what most fairly reflects the plaintiff’s earning capacity had the injury not occurred – comparison between what the plaintiff can earn in the exercise of his residual capacity in suitable employment against what most fairly reflects his earning capacity had the injury not occurred – concession that the pain and suffering consequences are “serious”

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s313(4)(a) and (b)

Cases Cited:Masters v McCubbery [1996] 1 VR 635

Judgment:                  The plaintiff has leave to bring a proceeding for pain and suffering.  The plaintiff’s application for loss of earning capacity is refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Cjveticanin	Maurice Blackburn
For the Defendant	Mr R H Stanley	IDP Lawyers

HIS HONOUR:

Introduction

1The plaintiff is a 54-year-old man who suffered injury, principally to his left shoulder, in the course of his employment with the Masters Home Improvement.

2At the commencement of final addresses, the defendant conceded that the pain and suffering consequences of the impairment of function of the plaintiff’s left shoulder was “serious”.  The remaining issue was whether the loss of earning capacity consequences of the impairment of the function of the plaintiff’s left shoulder is “serious”.

3The evidence relied upon by the plaintiff and the defendant was greatly restricted by reason of the Certificate of Opinion of the Medical Panel dated 25 September 2020.[1]  I will return to what issues remain for me to determine shortly.

[1]        Plaintiff's Court Book (“PCB”) 18-23

4Mr M Cvjeticanin of counsel appeared for the plaintiff.  Mr R H Stanley of counsel appeared for the defendant.

Some background facts

5The plaintiff commenced employment with Masters Home Improvement in about January 2012 at its Northland store.  He was employed as a department manager.  He was responsible for all of the trade sales specialists and floor staff within the trade and timber areas.  On 27 June 2014, he was assisting another employee to fill an order which included timber packs, cement bags, timber beams and similar building materials.  It was in the course of doing that work that he experienced what he described as a dead left arm and pain in his upper back.

6The plaintiff reported the incident to Masters Home Improvement’s safety and asset manager.  She took him to a medical practitioner.  The initial diagnosis was strained and torn muscles.  The plaintiff was provided with a certificate entitling him to take a few days off work, and he was prescribed painkilling medication.  The plaintiff experienced pain in a number of areas of his upper body, namely, his left shoulder, left arm, upper back and neck.  The pain he experienced did not improve.

7The plaintiff returned to the same medical practitioner, who referred him for an ultrasound, which was taken on 2 July 2014.  He was referred to physiotherapy.  He was prescribed further medication to treat pain.  He was eventually able to return to work just before Christmas of 2014, but with restrictions placed on him by his treating medical practitioner.  He continued to experience pain in his left shoulder, left arm, upper back and neck, and additionally, he experienced headaches, particularly in the morning.

8In late January 2015, the plaintiff suffered a serious onset of pain in his left upper limb when engaged in a relatively benign activity.  A wasp or bee landed on his right hand.  He swiped at it with his left hand, which resulted in him experiencing immediate excruciating pain in his left upper limb.  He returned to his treating medical practitioner, who referred him for an MRI scan which was taken on 3 February 2015.  He was advised that he had suffered a bad tear in his left shoulder, and he was referred to Mr Shane Blackmore, orthopaedic surgeon.

9Mr Blackmore operated on the plaintiff’s left shoulder on 20 April 2015.  At surgery, he found left shoulder impingement, a partial-thickness rotator cuff tear, biceps tendinitis and acromioclavicular joint osteoarthritis.  He performed an arthroscopy, during which he performed a bursectomy, rotator cuff repair, sub-pectoral biceps tendinitis, acromioclavicular joint excision and subacromial decompression.[2]  The plaintiff described his recovery as being extremely painful.  He eventually returned to work on the shop floor, performing light duties.

[2]        PCB 87

10On 11 November 2015, the plaintiff was assisting another worker to lift and carry sleepers.  As a result of engaging in this work, he suffered a flareup of left shoulder and arm pain.  He returned to his treating medical practitioner, who referred him to have an ultrasound and prescribed him medication to treat pain.  The condition of his left shoulder and arm did not improve.  He was referred to have an MRI scan of his left shoulder.  He was off work again.  He made an attempt to return to work without success at the defendant’s Sunbury store, performing light duties.

11The plaintiff was referred back to Mr Blackmore, who performed a hydrodilatation on the plaintiff’s left shoulder in around May 2016.  Mr Blackmore noted that the plaintiff did not have a very positive response to the hydrodilatation.  He regarded that as being a disappointing result.  He considered, at that stage, that the plaintiff required further manipulation and potentially further surgery.[3]

[3]        PCB 91

12Mr Blackmore performed further surgery on the plaintiff’s left shoulder on 4 July 2016.  At surgery, he found left shoulder stiffness with partial-thickness subscapularis tearing.  He performed a left shoulder manipulation under anaesthetic and a synovectomy and a coracoid osteotomy.[4]  Despite some improvement in the range of motion in his left shoulder, the plaintiff described persisting pain, and pins and needles in his left upper limb.

[4]        PCB 92

13As a result of a concern that the plaintiff might have suffered damage to intervertebral discs in his neck, he was referred to Mr Nicholas Hall, neurosurgeon.  The plaintiff first saw him on 19 September 2016, and it would appear he last saw him in the early part of 2017.  Mr Hall recorded that the plaintiff told him that he had a cold feeling radiating down his left arm, with numbness in his hand.  He referred the plaintiff to have a targeted transforaminal nerve root injection which gave him relief from the pain.  That led Mr Hall to consider that the plaintiff had pathology at C5-6.  He also referred him to have nerve conduction studies which did not demonstrate any peripheral neuropathy or compressive neuropathy within the left arm.  He diagnosed C6 radiculopathy secondary to C5-6 foraminal stenosis.  He advised the plaintiff to undergo a C5-6 anterior cervical decompression.[5]

[5]        PCB 94-97      

14The plaintiff did not return to work with Masters Home Improvement after the  incident which occurred on 11 November 2015.  He was made redundant by the company on  2 July 2016.

15The plaintiff did not have the surgery as advised by Mr Hall.  It would appear that he pursued conservative treatment, having physiotherapy and using painkilling medication.  The Medical Panel disagreed with the diagnosis made by Mr Hall and the need for surgery, as will be seen from my summary of its opinion later in these reasons.

Return to work

16The plaintiff obtained employment with Snowden Developments (“Snowden”) as a construction manager in April 2017.  He was able to tolerate the duties he performed in that employment quite well.  It was not physical work, and was work well within the range of his experience, skills and abilities; however, he said that there were times when he had to leave work early, and there were occasions when he was not able to go to work due to pain, presumably in his left shoulder, arm and neck.  The salary package associated with that employment was a handsome one.  The plaintiff was paid $135,000 gross per annum, together with a fully maintained car, payment of petrol, and the provision of a phone and laptop, and a credit card, presumably for the payment of expenses associated with the discharge of his duties in that employment.

17The plaintiff retained that employment for about seventeen months.  He resigned from that employment on 16 August 2018.  It would appear that it was the aggregate of his need to leave work early, and inability to go to work on some occasions due to pain, that led him to find that he was unable to cope with the pain he was experiencing in his left shoulder, arm and neck.  He was also experiencing debilitating migraine headaches.

18The foregoing summary is derived from the plaintiff’s three affidavits and from the reports of his treating medical practitioners.  Whilst the summary is short, its content is sufficient to outline the occurrence of the plaintiff’s injuries, and his return to work post injury.  The plaintiff and the defendant agreed that because of the questions posed for the consideration of the Medical Panel, and its subsequent binding answers, that there is no need to summarise the evidence in any greater detail.  I think that will become patent when I turn specifically to what questions the Medical Panel was asked to answer, and the content of its answers to those questions.

The Medical Panel

19A series of questions were referred to the Medical Panel on 25 June 2020.  The plaintiff and the defendant agreed that the answers to the series of questions are binding on the Court. 

20I do not doubt that the answers are binding because s313(4)(a) and (b) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) make that abundantly clear. The opinion (that is, the answers to questions referred to the Medical Panel) are to be adopted and applied by the Court and must be accepted as final and conclusive by the Court.[6]

[6]Masters v McCubbery [1996] 1 VR 635 in which the Court of Appeal explained the purpose of referral of medical questions to a Medical Panel and the binding nature of questions posed to it on the Court

21I will summarise the relevant questions posed to the Medical Panel and its answers. 

22Question 1 asked the Medical Panel to determine the nature of the medical condition to the plaintiff’s left shoulder, left arm and cervical spine.  Its opinion in relation to the plaintiff’s left shoulder is:

“In the Panel’s opinion Mr Corkill is suffering from:

a)    persistent dysfunction of the left shoulder following a soft tissue injury treated surgically including bursectomy, rotator cuff repair, subpectoral biceps tenodesis, an acromio-clavicular joint excision, subacromial decompression, synovectomy and coracoid osteotomy.”

23Its opinion in relation to the plaintiff’s left arm is:

“In the Panel’s opinion Mr Corkill is suffering from:

b)    referred pain to the left arm from the left shoulder but no intrinsic condition of the left arm.”

24Its opinion in relation to the plaintiff’s cervical spine is:

“In the Panel’s opinion Mr Corkill is suffering from:

c)    a soft tissue injury of the neck with an acute exacerbation of cervical disc degeneration which is now resolved, on a background of radiological evidence of degenerative changes in the cervical spine.”

25Question 2 was directed to whether  the plaintiff’s employment with Masters Home Improvements from 2012  to 27 June 2014 was a significant contributing factor to any injury to the plaintiff’s cervical spine, and whether the incident on 27 June 2014 was likewise a significant contributing factor to any injury to the  plaintiff’s cervical spine.  Its opinion is that neither the period of employment nor the plaintiff’s work on the specific date were a significant contributing factor to any injury to the plaintiff’s cervical spine.  Additionally, its opinion is that the plaintiff has no current condition affecting his cervical spine resulting from “the now resolved soft tissue injury to his neck and exacerbation of cervical spine degeneration of his neck on 27 June 2014”. 

26Additionally, Question 7 asked whether the plaintiff’s cervical spine condition resulted in, or materially contributed to, him having either a current work capacity or no current work capacity as defined in the Act.  Its opinion is that the plaintiff has no current incapacity for work resulting from any claimed condition of his cervical spine.

27Question 2 also asked whether the plaintiff was suffering from any medical condition to his left arm materially contributed to by any medical condition of the plaintiff’s cervical spine or left shoulder.  The Medical Panel’s opinion is that the pain the plaintiff experiences in his left arm “was/is materially contributed to by the left shoulder condition, but has no current intrinsic condition of his left arm”.

28Thus far, it is clear that I am bound by the opinion of the Medical Panel that the plaintiff suffered the injury to his left shoulder defined by the Medical Panel in answer to Question 1 a), that the referred pain in his left arm is not an intrinsic condition, but referred pain from the plaintiff’s left shoulder, and that the plaintiff’s claimed injury to his cervical spine is essentially of no consequence.

29With that background, the Medical Panel was asked a number of questions relevant to the plaintiff’s capacity for work. The relevant questions are Questions 4 and 5. Question 4 asked whether the plaintiff has either a current capacity or no current work capacity relevant to his left shoulder dysfunction. Its opinion is that he has an incapacity; however, in Question 5, the Medical Panel was asked to provide an opinion on whether any and which of nine forms of employment constituted “suitable employment” as defined in the Act. Its opinion is:

“In the Panel’s opinion:

a)Employment that does not demand heavy, repetitive lifting or use of the left arm above shoulder level would be suitable for Mr Corkill;

b)Mr Corkill has a capacity for a graded return to work program leading to full-time employment;

c)Work as a Customer Service/Ordering Clerk, Despatch Clerk or Despatch Supervisor constitute suitable employment for Mr Corkill, and he has the capacity for a graded return to work program leading to full-time employment in these roles.”

30Accompanying the Medical Panel’s Certificate of Opinion are the Reasons for its Opinion dated 25 September 2020.[7]  In arriving at the opinion relevant to the three forms of employment which the Medical Panel considered constituted suitable employment, it was provided with a vocational assessment report of Recovre dated 16 March 2020.  Each of those three forms of employment were described in significant detail.  I will return to why this is of importance later in these reasons.

[7]        PCB 177-193, and a schedule of attachments at 194-197

A fair reflection

31The plaintiff submitted that I should conclude the plaintiff’s employment with Snowden falls within what the legislature contemplated in s325(2)(f) of the Act; that is, that the gross income he earned from personal exertion in the three years after he suffered injury most fairly reflects his earning capacity had the injury not occurred.

32The plaintiff submitted that the actual gross earnings which the plaintiff earned through his employment with Snowden is $130,000  per annum, and after a calculation of 60 per cent, it produces $78,000  gross.

33The defendant submitted that it would be artificial to conclude that the gross income he earned from personal exertion with Snowden most fairly reflects his earning capacity had the injury not occurred.  Essentially, it submitted that there were a number of factors why I should reach that conclusion.

34The defendant submitted that the plaintiff had a number of pre-existing injuries which, of themselves individually, and collectively, incapacitated the plaintiff to some degree and had the effect of reducing his capacity for various forms of employment.  I do not agree. 

35The plaintiff developed a disabling problem with his left hip.  He underwent a left total hip replacement at the Royal Melbourne Hospital in April 2013.  Under cross-examination, the plaintiff denied that his left hip subsequently caused him any particular difficulties in performing work, save for the period of his convalescence.  He denied that he changed tack with his employment by working with Masters Home Improvements due to any incapacity resulting from his left hip problem, but because of the downturn in the building industry.  He said it was the downturn which was the driver behind his decision to take up employment with Masters Home Improvements.[8]  I accept the plaintiff’s evidence that he recovered from the left hip problem, and sought alternative employment for reasons relating to the downturn in the building industry.

[8]        Transcript 18-22

36The defendant submitted that the plaintiff also suffered from other medical problems affecting his neck, headaches,[9] mid back,[10] lower back[11] and left wrist.[12] Under cross-examination, it became clear that the plaintiff suffered from each of these medical problems at various times, but it was my strong impression that he did not consider any of those medical conditions to be particularly disabling.  I accept the plaintiff’s evidence.  I am fortified in reaching that conclusion because he then worked for a significant period of time with Snowden which, of itself, demonstrates that his left hip, neck, headaches, mid back, lower back and left wrist, however they may have been symptomatic, were not individually or collectively disabling.

[9]        Transcript 33-34 and 42-46

[10]        Transcript 52-53

[11]        Transcript 19, 33-34 and 43

[12]        Transcript 52-53

37The purpose behind the cross-examination of the plaintiff about those medical conditions was to demonstrate that those medical conditions, together with the incapacitating nature of his left shoulder injury, rendered him unsuitable for work such as the work he ultimately obtained with Snowden.  Furthermore, the defendant submitted that the fact that the plaintiff obtained work with Snowden was rather more a fluke than a real demonstration of his retained capacity for work.

38The defendant’s reference to the plaintiff obtaining work with Snowden being a fluke was based upon some sound reasoning, but, however sound, it was not applicable in any respect at all to the plaintiff.  I accept in theory that if an injured worker were to obtain employment clearly beyond the worker’s retained physical capacity and/or clearly beyond the worker’s vocational transferable skills, then that employment might not pass the test of being employment which most fairly reflects that worker’s earning capacity had that worker not suffered the claimed disabling injury.

39The plaintiff struck me as being something of a stoic.  My impression of his application to work and his resolve to overcome the adversity of suffering injury and persisting with employment is a clear demonstration of that.  The fact that he sought out work and obtained employment with Snowden is consistent with his attitude, and for him to have been able to work in that employment for seventeen months is not consistent with him fluking the job, but to the contrary, a demonstration that he was physically able and had the vocational and transferable skills to do the job.  But after seventeen months, the impairment of the function of his left shoulder just got the better of him.

40I consider that there is little in the defendant’s submissions that the employment with Snowden is not employment which most fairly reflects the plaintiff’s earning capacity had the injury to his left shoulder not occurred.  I should add the following - that the defendant submitted that if I considered that the fact of the plaintiff obtaining employment with Snowden was a fluke, then what most fairly reflects his earning capacity is his employment with Masters Home Improvements of $77,464 – 60 per cent gives $46,478.40.  The latter would result in the plaintiff failing to establish the requisite degree of loss of earning capacity.

Loss of earning capacity

41The defendant submitted the opinion of the Medical Panel that employment as a despatch supervisor is suitable employment, and the gross income first advised by Recovre is $78,000 gross per annum.  The defendant asked Recovre for a current gross income for that employment.  In a supplementary report dated 13 July 2021, it advised that the gross income per annum with the same employer is $79,560.

42The issue that then arose was whether it follows that the Medical Panel’s binding opinion that the employment as a despatch supervisor is suitable employment also means that the gross income per annum capable of being earned from that employment is also binding.  Whether it is or not does not matter in this case for reasons I will now turn to.

43The employment of despatch supervisor is very specific, in that it is with a manufacturing plant in Dandenong South.  The hours of work, the working environment, the equipment provided and the tasks involved in performing that employment are set out in very significant detail.[13] The Medical Panel was assessing a real job which it determined to fit within what constitutes “suitable employment” as defined in the Act. As a matter of logic and common sense because it has assessed a real job, then the actual gross income per annum that a worker is capable of earning from that employment is a very precise indication of what a worker can earn in the exercise of a residual capacity for suitable employment.

[13]        DCB 196-203

44The supplementary report relates to the same employer, but obviously the current gross income per annum has risen from the first advised rate of gross income per annum from $78,000 to $79,560, which means that the plaintiff has failed to demonstrate the requisite degree of loss of earning capacity.

45The plaintiff sought to undermine the employment of despatch supervisor as being suitable, and submitted that I should accept an alternative position. I do not propose to set out much of the plaintiff’s submission in that respect, because it runs against the grain of the binding nature of the opinion of the Medical Panel. It was asked to consider a real job, and it did so. On the basis of s313(4)(a) and (b) – that is, the opinion of the Medical Panel and the evidentiary substrata on which it expressed that opinion – there is no discretion vested in me to depart from giving effect to the relevant opinion of the Medical Panel that the employment of despatch supervisor is suitable employment, and, in my opinion, it must follow that the gross income per annum which the plaintiff can earn from that employment is, as a matter of logic and common sense, the gross income per annum which I should apply in the determination of the issue whether the plaintiff has established the requisite degree of loss of earning capacity.

Conclusion

46For the reasons set out above, I will grant the plaintiff leave to bring a proceeding to recover damages for pain and suffering consistent with the concession made by the defendant.  I will refuse the plaintiff’s application relevant to loss of earning capacity.

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