Crabtree v Fonterra Australia Pty Ltd and VWA
[2010] VCC 1978
•10 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BENDIGO
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-04620
| HAYDEN SPENCER CRABTREE | Plaintiff |
| v | |
| FONTERRA AUSTRALIA PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 5 November 2010 |
| DATE OF JUDGMENT: | 10 December 2010 |
| CASE MAY BE CITED AS: | Crabtree v Fonterra Australia Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1978 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Serious injury application under s.134AB Accident Compensation Act 1985 – serious injury claimed for serious impairment to the function of the left shoulder – leave granted for serious injury for loss of earning capacity and pain and suffering.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with | Arnold Dallas McPherson |
| Mr D J N Purcell | ||
| For the Defendants | Mr M R Titshall QC with | Hall & Wilcox |
| Ms S Manova | ||
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the first defendant on 5 September 2005.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of body function.”
5 The body function relied upon in this application is the left shoulder.
6 The plaintiff relied upon two affidavits, sworn 18 May 2009 and 30 March 2010. The plaintiff, Mr Ian Critchley and Dr David Murphy were cross- examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1] S.134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities,
that:
(a)
“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the first defendant on or after 20 October 1999;[2]
(b)
the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) under s.134AB(38)(b) of the Act, the term “serious” is to be: [2] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3] Barwon Spinners (op cit) at paragraph [33]
“… satisfied by reference to the consequences to the worker of
any impairment or loss of a body function … with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of
possible impairments or losses of a body function … .”
(d) under s.134AB(38)(c) of the Act: “An impairment or loss of a body function … shall not be held to be serious … unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases … fairly described as being more than significant or marked, and as being at least very considerable.”
9 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[4]
“The emphasis in s 134AB (38((c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation — because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[5]
[4] [2009] VSCA 181
[5] at paragraph [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent,
by what has been retained.”[6]
[6] Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
12 The test for “serious” is set out in paragraphs (b) and (c) of s.134AB(38) of the Act and is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard.[7]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[8]
[7] S.134AB(38)(j) of the Act
[8] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issues
14 Counsel for the defendants submitted that the plaintiff has not sustained a “serious injury” as the consequences of the injury are not described as being more than significant or marked and not at least very considerable. Secondly, he does not satisfy the statutory requirements for loss of earning capacity, in that he has made no effort to re-train or seek alternative employment. Thirdly, his credit is in issue.
The Plaintiff’s Evidence
15 In his first affidavit, sworn 18 May 2009, the plaintiff deposes that:
•
He was born in Melbourne on 24 February 1973 and is thirty-six years of age. In 1989, he left secondary college halfway through Year 11 and began a shoemaking apprenticeship. He returned to study Year 12, but was unable to complete it and worked as a shoemaker. He later worked for an industrial dry cleaning and laundry business for approximately eighteen months to two years.
• In 1994, he moved to Rushworth with his parents. •
In 1996, he began full-time work as a cheesemaker for Bonlac (the former company of the first defendant) in Stanhope, Victoria. The work was physically demanding. He was regularly working with 20-kilogram blocks of cheese. He worked an average of 48 hours each eight-day period and was paid $26.86 per hour.
•
In 2001, he began a de facto relationship. He has a daughter who was born in 2005, and another who was born in 2007.
•
Prior to September 2005, he does not recall having any problems with his left shoulder and would have described himself as quite fit and healthy.
•
On 5 September 2005, he was operating a machine which packed 20- kilogram blocks of cheese into plastic bags. On this occasion, the automatic packing process was not working properly and he was required to complete the packing process by hand. He had to repeatedly lift and shake the plastic bags containing the 20-kilogram blocks of cheese until the blocks slid down so the bags could be properly sealed. In the process of lifting and shaking one of the bags containing a block of cheese, he felt his left shoulder “pop” or “click”. He had immediate and severe pain. He reported the injury and stopped working. He saw Dr Al-Hassani at the Rushworth Medical Clinic, who prescribed analgesics, and certified him unfit for work.
•
In October 2005, after rest and conservative treatment, he returned to work on modified duties and reduced hours. Whilst at work, he was in a great deal of pain and was taking Panadeine Forte and anti-inflammatory medication. On 10 October 2005, he had to stop working because the pain in his shoulder had become too severe to continue; he could not cope with the physical demands the job required.
•
Following his first attempt to return to work, he increased his medication to Tramadol and Codalgin Forte, commenced physiotherapy in Shepparton and had a second injection in his left shoulder. Around this time he was advised he had a “frozen shoulder”. His shoulder was not improving, so on or about 22 December 2005, he had a hydrodilatation of his left shoulder, which provided temporary relief.
•
In February 2006, he returned to work for a second time, this time on light duties for reduced hours. He was still taking significant amounts of analgesic medication. After two weeks at work he again had to stop because of the job’s physical demands.
•
By this stage, his general practitioner had prescribed him anti-depressant medication. He was anxious about his future financial prospects and was frustrated by his loss of physical capacity and lack of progress.
•
Despite the pain he was suffering, he managed to return to work for a third time, but this increased his shoulder pain and associated problems. Around this time he returned to see Mr Critchley.
•
His condition failed to improve, and on 27 February 2007, Mr Critchley performed surgery on his left shoulder.
•
After the surgery, he attempted to return to work for the fourth time. His condition did not improve.
•
In the latter part of 2007, he was managing to work 3 hours per day, five days per week undertaking light duties, mainly involving clerical and administrative duties. In March 2008, he tried to increase his workload to 4 hours per day, five days per week, but the symptoms of his left shoulder worsened. In April 2008, he was no longer able to cope with the physical demands of even light duties and his general practitioner certified him unfit for all work duties. Consequently, he ceased work and his employment was terminated on 30 May 2008.
•
In late 2008, he underwent a month-long computer training course, which he attended for 2 hours per week. This was funded by a rehabilitation provider, who have now closed his file.
•
In late 2008 and early 2009, he continued to look for employment in sedentary, non-physical employments, but to date has been unsuccessful.
•
He currently suffers from pain and stiffness in his left shoulder constantly, but with varying intensity; pain radiating down his upper left arm and the back of his shoulder and into his left shoulder blade; and pain travelling up into his neck, which on occasions causes headaches. He has difficulty lifting his arm above shoulder height and his shoulder is mainly aggravated by use of the shoulder.
•
His injury has affected his ability to sleep and as a result he is often tired during the day. He now grinds his teeth at night, for which he has had to receive dental treatment. He is now restricted in his social, domestic and recreational activities. If he does overdo things, he has to pay for it later with increased pain. Thus, his partner now does many of the chores, including heavier household chores. His partner also continues to work full-time hours in order to financially support the family, which he is ashamed she has to do. He finds it difficult to physically care for his children, for instance when lifting them to give them a cuddle or when playing physical games with them. He is still able to drive, but has difficulty with long distances. He is no longer able to continue the physical pastimes he enjoyed prior to the incident, such as camping, breeding budgerigars, gold-detecting and fishing (bay and freshwater).
•
He is saddened by his predicament and sometimes feels miserable about the physical capacity he has lost as a result of being injured. He is anxious about his future prospects, particularly the financial prospects for himself and his young family. He believes that his future employment prospects are very bleak.
•
In or about November 2008, he tried to wean himself off most medications, because of their negative side-effects. Currently, he mainly takes analgesic medication.
•
He continues to see his general practitioner and sees Mr Critchley when necessary.
16 In his second affidavit, sworn 30 March 2010, the plaintiff deposes that:
•
He has continued to experience problems with his left shoulder, as previously described. Since November 2008, he has tried to stop taking most of his medication, and is currently taking Panamax and Panadol when required, and often at night to assist with sleep.
•
He continues to suffer pain, with some days being better than others. He still avoids heavy housework, and his partner’s father generally does the heavy work, which makes him embarrassed. He has bought a ride-on mower so that he can mow the lawns when he feels up to it.
•
He has been unable to find suitable work and is currently on Centrelink payments. He continues to look for suitable jobs in newspapers, but has not found any he could do with his limitations.
•
He continues to be restricted in his recreational activities and cannot enjoy physical pastimes like he did prior to the accident. Before the injury he bought a fishing boat, which he has been unable to use. He has been fishing with his daughters once and used his gold-detector once since the injury.
•
His partner works part-time and he cares for his children; however, if he were able to find suitable work, his parents or his partner’s parents, who both live in Rushworth, could help look after the children.
Investigations
17 In September 2005, an ultrasound of the left shoulder showed:
“The biceps tendon sits normally in the bicipital groove. There is fluid
seen in the biceps tendon sheath but no subluxation of the tendon.
The supraspinatus is a little heterogeneous consistent with tendinopathy.
There appears to be a partial deep surface intrasubstance tear. This is associated with subacromial bursal thickening of 2.1mm. Dynamic assessment shows bursal bunching and blocking at 50o.
The subscapularis and infraspinatus are normal.
Conclusion:
Partial deep surface tear supraspinatus associated with tendinopathy and subacromial bursitis. This may benefit from subacromial bursal injection of Marcaine and steroid and we are happy to perform this under sonographic guidance if requested.”[9]
[9] PCB 58
18 In April 2006, an x-ray of the left shoulder showed no bony joint abnormality. An ultrasound of the left shoulder revealed:
“Sonographic examination of the left rotator cuff demonstrates a 5 x 6 humeral surface partial-thickness tear of supraspinatus tendon located 10 mm posterior to the biceps.
The remainder of the rotator cuff tendons are intact.
The sub acromial subdeltoid bursa is normal.
Dynamic assessment of abduction demonstrates failure of humeral head depression resulting in impingement of supraspinatus tendon against the outer edge of the acromion. (This is due to poor muscle coordination or weakness of supraspinatus muscle or tendon).
Conclusion: Partial thickness humeral surface tear of the poor humeral head depression during abduction resulting in impingement.”[10]
[10] PCB 61
19 In November 2006, an ultrasound of the left shoulder revealed:
“Sonographic examination of the left rotator cuff demonstrates the rotator
cuff tendons to be intact.
The previously identified partial thickness tear of supraspinatus tendon
cannot be identified on today’s examination.
The remainder of the rotator cuff tendons are intact.
There is marked thickening of sub acromial subdeltoid bursa which bunches on dynamic assessment of abduction.
The AC joint is normal.
Conclusion: Subacromial subdeltoid bursitis.
The previously identified partial thickness tear of supraspinatus tendon was not evident today.”[11]
[11] PCB 63
20 In September 2007, an MRI scan of the left shoulder revealed:
“Conclusion:
Signs of mild degree of rotator cuff disease with supraspinatus tendonopathy and accompanying bursal thickening. Minor labral findings. ?consideration for subacromial joint injection.”
(sic)
The Plaintiff’s Medical Evidence
21 At the request of the plaintiff’s general practitioner, Mr Ian Critchley, orthopaedic surgeon, saw the plaintiff from October 2005 until November 2007 on about sixteen occasions.
22 In October 2005, Mr Critchley was told by the plaintiff that he was injured at work and he had had a cortisone injection which gave him limited relief. Mr Critchley noted muscle wasting of the left shoulder. He had reviewed the ultrasound which he said showed an intrasubstance tear of his cuff only. Mr Critchley reported to the plaintiff’s general practitioner, Dr Israa Al-Hassasni, that he had examined the plaintiff, at his request, and diagnosed a soft-tissue injury to his left shoulder. He thought the plaintiff might be developing Reflex Sympathetic Dystrophy and referred him to physiotherapy in the first instance.
23 In December 2005, on review, Mr Critchley thought the plaintiff had an element of capsulitis which would benefit from hydrodilatation, which was organised.
24 In April 2006, he said that the plaintiff was having more pain, which he thought was unusual and thought it represented an impingement syndrome. He arranged for x-rays and an ultrasound.
25 In May 2006, Mr Critchley reported that the repeat ultrasound showed a very small tear of the deep surface of the rotator cuff. He thought the plaintiff’s restriction of range of motion was minimal and he suspected he had secondary impingement.
26 In October 2006, he said the plaintiff complained of a recurrence of his pain two months earlier. On examination, the range of motion of the shoulder was good, there was crepitus and there was quite gross overreaction. Mr Critchley said the plaintiff had a positive impingement sign and organised a new round of investigations. The x-rays confirmed a partial thickness cuff tear and marked subacromial impingement. He considered that the plaintiff should undergo an arthroscopic subacromial decompression, and wrote to Allianz seeking permission to fund the surgery.
27 In April 2007, seven weeks after the arthroscopic subacromial decompression, he reported that the plaintiff had very poor scapular rhythm which was being worked on by his physiotherapist. He thought the plaintiff would be able to return to work on light duties soon.
28 In June 2007, he noted that the plaintiff was doing well with his shoulder decompression and that he was on a return to work plan, and thought he could gradually increase that until he was back to normal duties.
29 In August 2007, he reviewed the plaintiff, and noted that he was having problems with his left shoulder. He was back at work on light duties but developed more left shoulder pain and by his own admission the pain was associated with increased sweating in his arm, and feelings of anxiety. Mr Critchley said the plaintiff was having episodes of shoulder instability and suggested a further MRI scan. He thought the plaintiff might need some Chronic Pain Syndrome treatment.
30 In September 2007, Mr Critchley reported to the plaintiff’s general practitioner that the repeat MRI showed little, and he injected the plaintiff’s subacromial space with local anaesthetic and steroid. He thought if this did not help, he should be referred to a pain management clinic.
31 Mr Critchley saw the plaintiff in November 2007 and suggested that he resume physiotherapy, but saw no indication for surgery.
32 In cross-examination, Mr Critchley said, by April 2006, there appeared to be a return of the impingement syndrome. He said that you need to have a good range of motion of the shoulder to assess the impingement properly. That is why it was not obvious when the plaintiff had the restricted range of motion due to the capsulitis. As the range of motion improved, the impingement syndrome became more obvious and he complained more about the pain. This resulted in the ultrasound which showed a small tear.
33 In re-examination, Mr Critchley said he was aware the plaintiff was lifting 20- kilogram blocks of cheese and that this was a possible cause of the tear in the rotator cuff. He said when he first saw the plaintiff there was possibly a component of anxiety related to the job or it could have been about anything. Subsequently, the plaintiff developed capsulitis which was slightly unusual in someone his age. His overall assessment was that the plaintiff’s physique was probably not appropriate to lifting 20-kilogram blocks of cheese. He developed a painful shoulder. Subsequently, he has developed a Chronic Regional Pain Syndrome. Attempts to treat the physical aspect have failed.
34 In November 2007, when last seen by Mr Critchley, the plaintiff had not recovered. Mr Critchley said the plaintiff had supraspinatus tendonitis which was persisting in the left shoulder which was a degenerative process which would have prevented him from doing full-time manual work. The plaintiff had started on anti-depressants. He thought he was fit for modified work on a part-time basis. He agreed pain management included physical and coping strategies.
35 In April 2006, Mr Peter Scott, surgeon, examined the plaintiff at the request of the defendants’ insurer. It was his view that the plaintiff was genuine and well-motivated. He had suffered a significant ongoing work-related organic disability in his left shoulder, a rotator cuff lesion with a partial tear of the supraspinatus tendon associated with tendinitis, subacromial bursitis and impingement. His diagnosis was based on a history, physical examination and assessing the radiological changes. He recommended an arthroscopy, rotator cuff repair and decompression. He noted some development of Regional Pain Syndrome, but hoped it would settle once the rotator cuff lesion had adequately been treated. He considered the plaintiff had no capacity for work at that time.
36 In April 2008, Dr Monzer Adba, the plaintiff’s general practitioner, said he had been treating the plaintiff on many occasions for nearly two years in respect to his left shoulder pain. Dr Adba said the plaintiff reported severe left shoulder pain limiting his left arm function, interfering with his sleep and life. In particular, the plaintiff was unable to lift his child and had become depressed. He prescribed anti-depressant medication, as well as providing counselling and support during his frequent visits to the clinic. He said the plaintiff was keen to return to work as he loved his job. He found being at home was boring and frustrating. He returned to work on modified duties and limited hours, which was not going well, so he referred him back to Mr Critchley. He also referred the plaintiff to Mr Lynch, orthopaedic surgeon, in Melbourne, for a second opinion. He said the plaintiff had attended physiotherapy treatment and was receiving the following medications: Panadol Osteo, Celebrex, OxyContin and Lexapro. He said that the plaintiff had a chronic shoulder pain due to an injury; the impairment was permanent but would fluctuate in intensity over time.
37 In July 2008, Mr Bernard M Lynch, orthopaedic surgeon, reported that he had reviewed the plaintiff in December 2007. Mr Lynch diagnosed left scapular thoracic interface inco-ordination with secondary subacromial impingement. He said the plaintiff’s left shoulder condition had not stabilised and he thought there was potential for ample improvement with appropriate physiotherapy. He thought the improvement would be slow. At that time, Mr Lynch said the plaintiff should avoid doing repetitive forward reaching movements and above shoulder level activity. He did not recommend any further surgery and he thought that the plaintiff might need pain management in addition to physiotherapy.
38 In February 2009 and March 2010, Dr David Murphy, consultant physician in rehabilitation medicine, examined the plaintiff at the request of the plaintiff’s solicitor. It was his view that the plaintiff had suffered a rotator cuff tear and impingement. He had developed a secondary muscular dysfunction of the shoulder movements, particularly involving the scapular stabilising muscles. He had also developed secondary depression. He accepted that the plaintiff had injured himself at work whilst in the process of bagging a box of cheese in September 2005.
39 In March 2010, Mr Murphy said that the plaintiff was keen to obtain employment. He had been involved with vocational counselling to determine what jobs were suitable for him. Mr Murphy considered he had a limited capacity to complete activities of daily living, his condition is permanent and the prognosis will be permanent pain and disability due to his left shoulder injury, which will continue to cause considerable impact on his ability to undertake activities of daily living and to work.
40 Mr Murphy said the plaintiff had a significant incapacity for work and was unable to undertake work which involved the use of the left upper limb above the shoulder or below waist height. He said he should not lift objects of more than 5 kilograms with the left upper limb, and avoid pushing and pulling activities with the left upper limb. He said that if he could obtain employment with those restrictions, he thought he could work for up to 15 hours a week. He did say that he thought it would be difficult for him to work more than those hours because of reliance on the right upper limb for any repetitive activities.
41 In cross-examination, he agreed 15 hours was an arbitrary figure. He said that experience shows that people who are on a limited program of return to work are able to sustain the work for a longer period. If they return to full-time work, they often end up with secondary problems.
42 In re-examination, he said when he saw the plaintiff in March 2010 he did not think he was severely depressed. His assessment was based on the plaintiff’s physical symptoms.
43 Dr Robyn Horsley, occupational physician, saw the plaintiff at the request of his solicitors in March 2009 and March 2010. She accepted that the plaintiff’s work had been a significant contributing factor in his condition. She imposed work restrictions which involved:
• avoidance of repetitive overreaching involving the left shoulder girdle; •
avoidance of repetitive pushing and pulling involving the left shoulder girdle;
•
avoidance of repetitive above shoulder activities involving the left shoulder girdle;
•
avoidance of static postures involving the left shoulder girdle – he should ideally work between shoulder and waist height.
•
avoidance of lifting items greater than 10 to 12 kilograms on a permanent basis; and
• avoidance of lifting items up to 8 kilograms on a repetitive basis. 44 Those restrictions also applied to his social, domestic and recreational activities.
45 Dr Horsley said the plaintiff was permanently unfit for his employment as a cheesemaker. She believed he had a capacity for work, but his options were limited by his geographic location in Rushworth. Her prognosis for his redeployment was guarded. She said his prognosis would be improved with an upgrade of skills, particularly in the use of computers, and possibly consideration of a retail certificate to enable him to work in a customer service role, and access to the WISE Scheme. She said there was an ongoing disability.
Vocational Assessment by Evidex
46 In March 2010, Ms Judith Long of Evidex said that the plaintiff no longer has the capacity to work in other occupations for which he is qualified or has work experience. She said the plaintiff had very few transferrable skills for a new occupation with low physical demands. He has no real experience of administrative duties, basic computer skills, with no useful word processing skills. She said his few transferrable skills, combined with his reduced functional capacity, were found to severely restrict his employment opportunities. No alternative occupation was found where the inherent job requirements are within the plaintiff’s functional capacity. She considered that further occupational rehabilitation and/or re-training in the future is unlikely to lead to suitable paid employment in the open labour market for the plaintiff given the extensive re-training required to qualify him for an occupation with low physical demands.
47 She concluded there was no commercially viable occupation in the open labour market for which the plaintiff is likely to qualify that meets the definition of “suitable employment”, and this will continue for the foreseeable future.
The Defendants’ Medical Evidence
48 Dr David Ho, occupational health consultant, examined the plaintiff on behalf of the defendants’ insurer in October 2005 and in April 2006, and conducted worksite assessments. It was his view that the plaintiff had suffered a workplace injury. In April 2006, he did not believe the plaintiff was fit for his pre-injury duties and provided work restrictions of:
• avoiding heavy lifting greater than 5 kilograms; • avoiding excessively repeated use of his left arm; • avoiding left arm movement above shoulder level; • work at his own pace. 49 Dr Ho considered the plaintiff’s current treatment with medications, physiotherapy and self-exercise at home were appropriate, and said that, should the plaintiff’s shoulder condition worsen, an arthroscopy may be appropriate.
50 In respect to the worksite inspection, he said that duties such as light bench work, clerical and administrative tasks, starter room training in the chief production area and assisting in the laboratory were well within his current capabilities. He considered he could upgrade or increase his hours at two- weekly intervals to 8 hours a day, five days a week. As his hours are increased, he is able to rotate or upgrade to include butter re work and drum and bucket/tin filling in the AMF department.
51 Professor Vernon Marshall, surgeon, examined the plaintiff in June 2007, July 2009 and March 2010 at the request of the defendants’ solicitors. It was Professor Marshall’s view that the plaintiff had sustained a shoulder soft- tissue strain injury at work. He had arthroscopic surgery to the left shoulder for a partial rotator cuff tear. He developed post-operative adhesive capsulitis and a frozen shoulder affecting the left shoulder which has persisted with impaired movements and pain on movement. Professor Marshall said the plaintiff had a stable partial impairment and has capacities for light duties only. He considered he was likely to be permanently impaired from his previous employment and duties, and thought that further rehabilitative training may be appropriate to aid return to the workforce. He said future treatment is best by self-management strategies. He considered that he was incapacitated for his pre-injury duties and this was likely to be permanent. He said that he was capable of suitable employment but may require rehabilitative help to achieve this. He noted that there were no rehabilitation services currently being provided.
52 In October 2009, Professor Marshall commented on a Vocational Assessment from Recovré Pty Ltd (“Recovré”) dated 20 March 2008. He noted the Assessment identified suitable employment options, in order of priority, of truck driver, forklift driver, store person, console operator, parking attendant, product quality controller, bus driver, delivery driver (light), and sales assistant. It was his view that the plaintiff was capable of suitable employment with minimum use of the left arm and minimal overhead work with the left arm, with restriction of weight lifting to 5 kilograms or less on the left side. Professor Marshall said that provided the above restrictions are complied with, the plaintiff would be capable of performing the occupations listed in the report.
53 In March 2010, Professor Marshall was forwarded the NabEnet report on work options, which included site services officer for the Department of Sustainability and Environment and office administration workforce on-tap, Shepparton. Professor Marshall said the report constituted suitable employment which the plaintiff could undertake, initially part-time, increasing to full-time, over the course of two to three weeks.
54 In June 2010, Professor Marshall qualified his March 2010 report and said that the work options would need to take into account the restrictions of no lifting over 5 kilograms and minimal use of the left arm and minimal use of the arm above shoulder height.
55 In April 2010, the plaintiff was examined by Mr Rodney Simm, orthopaedic surgeon, at the request of the defendants’ solicitors. Mr Simm diagnosed a chronic adverse pain response following a soft-tissue strain injury to the right shoulder as a result of lifting at work on 5 September 2005. He expected the impairment and loss of function to persist for the foreseeable future. He said treatment will continue to be ineffective and that the plaintiff’s condition should now involve self-regulation of activities. He accepted that the plaintiff’s chronic left shoulder pain would confine him to relatively light activities with his left arm below shoulder height. Mr Simm said the job options identified in the enclosed report were of a non-physical nature and included site services officer and office administration. He said these occupations were suitable. He considered the plaintiff’s incapacity for employment would persist for the foreseeable future. He said the plaintiff’s apparent incapacity for employment may relate to psychological factors, and a full evaluation of the plaintiff’s capacity should involve psychiatric assessment.
Vocational Assessments
Recovré
56 Recovré conducted an assessment of the plaintiff in January 2008. At that time it was considered the plaintiff did not have the capacity to complete his pre-injury duties and that this was unlikely to alter in the foreseeable future. It was recommended the plaintiff be referred for a vocational assessment to identify alternative forms of employment more suitable for him to perform given his ongoing left shoulder symptoms.
57 In March 2008, Recovré identified the following suitable employment options in order of priority: truck driver, forklift driver, store person, console operator, parking attendant, product quality controller, bus driver, delivery driver (light), and sales assistant.
58 It was recommended that the plaintiff enter into job seeking assistance (JSA) with Recovré in order to further enhance and refine his independent job seeking skills. It was recommended he complete a medium rigid truck licence and forklift licence in order to enhance his employment options.
59 In April 2008, Recovré reported that the plaintiff had commenced job seeking assistance.
60 In July 2008, Recovré noted that the plaintiff had fully complied with job seeking assistance. He had been actively job seeking, without success, and would be encouraged to continue.
61 In October 2008, Recovré reported that the plaintiff had complied with the NES job seeking plan and that he had further developed and refined his independent job seeking skills. It was recommended that he focus on job seeking and a WISE program.
62 In January 2009, it was noted that the plaintiff had completed the NES job seeking plan and that he had further developed and refined his independent job seeking skills. The plaintiff had been actively job seeking, without success, and had promoted the WISE program in order to attract prospective employers.
NabEnet
63 In March 2010, Ms Chua, psychologist, of NabEnet, performed a vocational assessment and labour market analysis in relation to the plaintiff at the request of the defendants. Taking into account physical restrictions of no lifting with the left arm greater than 5 kilograms, minimal use of the left arm and minimal overhead work with the left arm, she identified, in the region of Shepparton, Echuca and Bendigo, three employment options, namely a site services officer with the Department of Sustainability and Environment in Bendigo, a receptionist and office administration. All required competency in computer skills. She suggested the plaintiff undertake further training to build on his computer skills.
Cross-Examination of the Plaintiff
64 In cross-examination, the plaintiff said there were four hundred jobs, or thereabouts, at the first defendant’s and just about all of them were on the factory floor, that the computer course did not qualify him to work in administration at the first defendant’s and that those who held jobs in administration had been in their jobs for some time.
65 Since May 2008, the plaintiff has not made application to work with any employer other than the first defendant. The plaintiff said he had made enquiries through newspapers and Centrelink for jobs. He has looked in Shepparton and Bendigo, and in the Herald-Sun. He said there has been no job suitable in the Bendigo, Shepparton, Mooroopna and Tatura area for someone with his abilities and work limitations.
66 The plaintiff said he did exercises regularly, prescribed by his physiotherapist. He said he started on anti-depressant medication in February 2006 for a couple of months. He is currently taking milder medication, like Panadol and Panamax.
67 He said he can drive for a good hour without stopping and getting out for a break. He said his shoulder gets worse when he sits down. He is currently looking after his children.
68 In re-examination, the plaintiff agreed that he could not do production line work which involved the repetitive use of his left shoulder and arm. He agreed he could not lift weights with his left arm using his left shoulder. He agreed he has seen his general practitioner from time to time in the last couple of years about his shoulder. He said that when he stopped work from time to time, that was a decision made in consultation with his doctors and upon medical certificates. He has not been able to identify any job he thought he could do. He said during the period he worked with the first defendant, when he was on restricted duties, no other job was offered to him in that period.
Credit of the Plaintiff
69 The plaintiff was consistent in reporting the injury and its causes to doctors whom he saw. A number of the doctors who examined the plaintiff described him as genuine, open and co-operative. The evidence was that he followed the advice of medical practitioners, he had a good work history, he was a long-term employee and worked at a high level within the company. He enjoyed his job. He participated in return to work plans and only ceased working with the first defendant with an appropriate medical certificate. On the advice from a vocational assessor, he underwent re-training to try to broaden the jobs for which he could apply. He answered all questions put to him in a direct and frank manner and made appropriate concessions. Overall, the plaintiff impressed me as a credible witness.
70 I note that there was no surveillance of the plaintiff.
Analysis of the Evidence
71 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course, of his employment with the first defendant. All of the medical witnesses accepted the injury was work- related.
72 Under s.134AB(38)(h) of the Act, the Court, in assessing pain and suffering consequences of a physical injury, must exclude the psychological or psychiatric consequences of the injury.[12]
[12] S.134AB(38)(h)
73 Where, such as in this case, a plaintiff makes a claim based upon a physical injury (a serious injury application under paragraph (a) of the definition of s.134AB(37), a court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically-based: see Barwon Spinners Pty Ltd & Ors v Podolak.[13]
[13] (supra) at paragraph [70]
74 The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering; and (b) loss of earning capacity. 75 The provisions of s.134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[14] The subsection then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[15] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[16]
[14] S.134AB(38)(b) and (c)
[15] S.134AB(38)(e), (f) and (g)
[16] Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170, at [63]
76 Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff.
The Narrative Test
77 I shall consider the narrative test first. Section 134AB(38)(b) of the Act requires the term “serious”:
“… to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to-
…
(ii) loss of earning capacity- when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.”
78 Section 134AB(38)(c) then provides:
“An impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless … the 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, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
79 The Court of Appeal has emphasised that the task of a Judge in making a serious injury determination involves a “fact, degree and value judgment”.[17] In determining whether the narrative test is met, a court is required to evaluate the consequences of the impairment not the injury itself. A court must evaluate the consequences of the particular impairment and then make an objective determination, by comparing the consequences with other cases in the range of possible impairments. In addition, the court must be satisfied that the consequences are “more than significant or marked”.
[17] Humphries v Poljak (1992) 2 VR 129, 167; Dwyer v Calco Timbers Pty Ltd (2006) VSCA 187 ([41]
80 The plaintiff has sustained an injury to his left shoulder. The consequences of that impairment are that he can no longer return to his pre-injury employment, nor can he engage in employment which requires him to perform his pre-injury duties. He now has to avoid heavy lifting in excess of 5 kilograms, avoid excessive use of his left arms, avoid left arm movements above mid-chest level and work at his own pace. A number of the doctors said he could only engage in work with the above restrictions, and indicated the restrictions would be permanent. Before the injury, the plaintiff had been in full-time employment with the first defendant for many years.
81 The plaintiff tried to maintain his employment with the first defendant before he was dismissed from that employment. He provided a history of continuing to work despite problems and difficulties and working on modified duties for limited hours until such time as he was dismissed. Subsequent to his dismissal, he underwent re-training, undertaking a computer course. He underwent assessments by vocational assessors. His evidence was that he was living in Rushworth looking for jobs in the Rushworth, Bendigo and Shepparton areas but to date had not found suitable employment.
82 The plaintiff is aged thirty-seven. He has lost the ability to be a cheesemaker, a job for which he trained and for which he had worked in for many years, and a job he enjoyed. Further, the evidence is that the plaintiff can no longer perform manual work, the only work for which he is qualified or has work experience. He has very few transferable skills. This represents a significant loss to this plaintiff, both with respect to his enjoyment of life, and self-esteem.
83 I am satisfied that it is fair to describe the consequences of the plaintiff’s loss of earning capacity as being more than significant or marked and properly regarded as serious when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test.
84 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
The Statutory Test – Loss of Earning Capacity
85 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i); and (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 86 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i) “without injury earnings”; and (ii) “after injury earnings”. 87 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
88 “Without injury earnings” consist of the gross income (expressed at an annual rate) that the plaintiff was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
89 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity.
90 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) of s.134AB(38) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.[18]
[18] (supra) at paragraph [70]
91 In terms of timing, the comparison between “without injury earnings” and “after injury earnings” is not necessarily consistent. The “after injury earnings” are calculated as at the date of trial (s.134AB(38)(e)), whilst the “without injury earnings” are calculated by reference to the six-year period specified in s.134AB(38)(f). So if the hearing to determine the question of serious injury takes place more than three years after the date of injury, it would not necessarily be an equivalent or parallel comparison: see Acir v Frosster Pty Ltd.[19]
[19] [2009] VSC 454 at [157]
92 The plaintiff’s current earnings from personal exertion are nil.
93 I am therefore required to determine a “without injury” earnings figure based on a six-year period specified in s.134AB(38)(f).
94 The years not in dispute are as follows:
Year Ending Gross Annual Earnings 30 June 2003 $50,097.00 30 June 2004 $56,107.00 30 June 2005 $55,185.00
95 For the years ending 30 June 2006 to 30 June 2008, the plaintiff submitted that consistent with the figures on page 17 of the Certified Agreement,[20] read in conjunction with DCB 386 to 389, together with increases of 3 per cent on 1 June and 1 September for 2006 and increases of 4 per cent on 1 June 2007, with the further increase in wages of 4.5 per cent on 1 June each year from 2008, are as follows:
[20] DCB 448
1st date Base rate 42 hourly Hours to Annual Weekly
rate be worked income
01.07.05 $754.32 $26.86 2,184 $58,662 $1,128.12 3% increase $776.95 $27.67 2,184 $60,431 $1,162.14 from 1.1.06 3% increase $800.26 $28.50 2,184 $62,244 $1,197.00 from 1.9.06 4% increase $832.27 $29.64 2,184 $64,733 $1,244.88 from 1.6.07 4.5% increase $869.72 $30.98 2,184 $67,667 $1,301.15 from 1.6.08 96 The plaintiff submitted that the rate applicable for (e)(i), applying (f), is $67,667 per annum or $1,301.15 per week, of which 60 per cent is $40,600 per annum, that is $780.69 per week or $20.54 per hour for a 38-hour week.
97 In respect to the contested period of 1 July 2005 to 30 June 2008, the defendants submitted that the plaintiff’s “without injury” earnings were as follows:
Year Ending Gross Annual Earnings 30 June 2006 $59,309.00 Year Ending Gross Annual Earnings 30 June 2007 $61,030.00 30 June 2008 $63,776.00[21] [21] Comparable earner records for year ending 30 June 2008 are not available, but the EBA allows for an increase of 4.5 per cent ($63,776.00)
98 The defendants contend, that on the basis of the above earnings, a fair figure representing the plaintiff’s “without injury” earning capacity is $63,776.00. The defendants’ submission was that the plaintiff must establish that on a permanent basis he does not have a capacity to earn in excess of $38,265.00 gross per annum – a figure representing a permanent loss of 40 per cent.
99 There is a difference of $2,335.00 per annum between the respective submissions.
100 Counsel for the plaintiff submitted that the plaintiff’s capacity for suitable employment was for 15 hours a week with restriction of:
• the use of the left upper limb above the shoulder or below waist height; • not lifting objects of more than 5 kilograms with the left upper limb; and • avoiding pushing and pulling activities with the left upper limb. 101 This was consistent with Dr Horsley’s recommendation; however, she did not impose a 15-hour limit. She said the plaintiff’s redeployment was guarded. She thought his prognosis would be improved with an upgrading of skills, particularly in the computer area, and a possible consideration of a retail certificate to enable him to work in a customer service role. She said his Year 10 education limits his working options.
102 The defendants submitted that the plaintiff had a capacity for suitable employment on a full-time basis in accordance with Dr Horsley’s report.
103 The Evidex Assessment prepared by Ms Long concluded there was no commercially viable occupation in the open labour market, for which the plaintiff is likely to qualify, that meets the definition of “suitable employment” and this will continue for the foreseeable future.
104 The defendant submitted that suitable employment for the plaintiff would include the following positions:
• Site services officer[22] $759.24 to $861.00 gross per week
($39,480 to $44,766 gross per annum)
[22] DCB 55e
• Receptionist[23] $730.74 to $769.12 gross per week ($37,998 to $39,994 gross per annum) • Office administration[24] $$869.08 gross per week (($45,191 gross annually) • Bus driver[25] $800.00 gross per week ($41,600 gross per annum) • Truck driver[26] $865.00 gross per week ($44,900 gross per annum). [23] DCB 55f
[24] DCB 55f
[25] DCB 564
[26] DCB 561
105 The plaintiff attempted to return to work on four occasions and in particular, on the last occasion he increased his hours from 15 hours a week, that is 3 hours per day, to 4 hours per day, five days a week, which was unsuccessful. I accept the evidence of Dr Murphy, who said experience shows that people who are on a limited program of return to work are able to sustain the work for longer periods than if they return to work full-time, as they often end up with secondary problems.
106 Given the evidence of Dr Horsley, Dr Murphy, and Ms Long of Evidex, I consider that for the foreseeable future, realistically the plaintiff has a working capacity of 20 hours per week in one of the suitable employments identified by the defendants.
107 Based on the submissions of both parties, the plaintiff satisfies the arithmetical formula established by the Act.
108 I am also required to consider issues of re-training and rehabilitation pursuant to subsection (g) of the Act. The defendant submitted the plaintiff had not undertaken the further computer training recommended by NabEnet. I was referred to the Recovré report of January 2009. The plaintiff was being supervised by Recovré for twelve months. At no time did Recovré suggest he undertake further computer training, such as was suggested by NabEnet. Further, no such suggestion was made by Evidex. The submission of the plaintiff was that the plaintiff had done everything that had been asked of him and he was self-motivated. I accept that he has done so and, accordingly, has complied with the statutory requirement.
109 I accept that the consequences of the injury are permanent within the relevant section, that is, for the foreseeable future. There is no medical opinion that any treatment will alter the current course.
110 The above position is reached purely by reference to the plaintiff’s physical condition. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s.134AB(38)(h) of the Act.
111 Accordingly, I am satisfied that the plaintiff has established that he has the requirements of paragraph (f).
112 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering and loss of earning capacity is successful.
113 Finally, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law against the defendants seeking damages for pain and suffering and loss of earning capacity as a result of his employment with the first defendant.
114 I will hear the parties as to the precise form of orders sought and on the issue of costs.
- - -
0
7
0