Crumplin v Inter Industrial Services Pty Ltd
[2014] VCC 1491
•11 September 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-03728
| ANDREW CRUMPLIN | Plaintiff |
| v | |
| INTER INDUSTRIAL SERVICES PTY LTD | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 September 2014 | |
DATE OF JUDGMENT: | 11 September 2014 | |
CASE MAY BE CITED AS: | Crumplin v Inter Industrial Services Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1491 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – compensable injury to the left shoulder – concession that the pain and suffering consequences meet the statutory test – whether the loss of earning capacity consequences meet the statutory test – whether the plaintiff was fit for suitable employment – whether another non-compensable impairment contributed to the plaintiff’s loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB; Civil Procedure Act 2010 Judgment: The plaintiff has leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh | Nowicki Carbone |
| For the Defendants | Mr A Middleton | Lander & Rogers |
HIS HONOUR:
Introduction
1 By an Originating Motion filed on 3 August 2011 the plaintiff seeks the leave of the Court pursuant to section 134AB of the Accident Compensation Act 1985 (“the Act”), for leave to bring a proceeding to recover damages for pain and suffering and loss of earning capacity.
2 The plaintiff claimed that he suffered an injury to his left shoulder that resulted in pain and suffering consequences and loss of earning capacity consequences which meet the statutory test. The defendants conceded that the plaintiff had suffered a compensable injury. They also conceded that the pain and suffering consequences of the injury met the statutory test. They denied that the loss of earning capacity consequences of the injury met the statutory test.
3 Mr M Walsh of Counsel appeared for the plaintiff. Mr A Middleton of Counsel appeared for the defendants.
4 The following evidence was adduced at the trial of the proceeding:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”) pages 9-25, 28-29, 35-146: exhibit A;
· The plaintiff tendered a medical certificate provided by Dr McColl, general practitioner: exhibit B;
· The plaintiff tendered a letter of Allianz Australia Workers’ Compensation (Victoria) Ltd dated 26 August 2014: exhibit C;
· The defendants tendered their Court Book (“DCB”) pages 10-74a, 75-82, 83-85, 93-95, and from the plaintiff’s Court Book, pages 167-174: exhibit 1;
· The defendants tendered an extract of Dr McColl’s clinical notes: Exhibit 2.
The Plaintiff’s background
5 The plaintiff was born in March 1968. He is now 46 years of age. He was born in England. He migrated to Australia with his family in 1971. He recommenced his schooling on arrival in Australia. He completed Year 10.
6 Between leaving school in 1986 and March 2009, the plaintiff worked in factories. He worked as a machine operator and as a storeman. In March 2009, he was employed by the first defendant. The first defendant is a labour-hire organisation. It placed him with Ward McKenzie Pty Ltd on a production line. The work involved packing bags of dried foodstuffs into cardboard cartons.
The Plaintiff’s injury
7 On 18 May 2009, the plaintiff was assaulted by a fellow worker. As a result of the assault, he fell heavily against a wall on his left shoulder.
The Plaintiff’s medical treatment
8 The plaintiff saw a medical practitioner at the Rosanna Medical Group on 2 June 2009. He was referred to have an ultrasound of his left shoulder which was performed on 4 June 2009.[1] The radiologist reported that there was a focal tear of the subscapularis tendon, which was 10 to 12-millimetres wide, and also of the anterior portion of it, which was 6-millimetres wide. There was also a moderately large effusion in the subacromial bursa. The plaintiff first saw Dr McColl at that practice on 10 June 2009.
[1]PCB 35
9 Dr McColl injected the plaintiff’s shoulder with corticosteroids and local anaesthetic on 10 June 2009. On review, the plaintiff complained he was no better. He was then referred to have physiotherapy. He was also prescribed analgesics and anti-inflammatory medication. On review on 1 July 2009 and 5 August 2009, the plaintiff admitted to some improvement. On the latter occasion, Dr McColl gave the plaintiff another injection of corticosteroid and local anaesthetic. It is not clear whether that second injection improved the plaintiff’s level of pain or not. Dr McColl continued to prescribe the plaintiff with analgesics and anti-inflammatory medication. The plaintiff also continued to have physiotherapy.
10 Mr Miller, orthopaedic surgeon, then took over the plaintiff’s treatment. The plaintiff was referred to him by Dr Ganesvaran, general practitioner, of the Viewbank Family Medical Group. The plaintiff first saw Dr Miller on 18 January 2010. Mr Miller was of the opinion that the plaintiff had suffered an injury to the rotator cuff of his left shoulder. He considered that because the plaintiff had a poor response to conservative treatment, that surgical intervention was warranted.
11 Mr Miller operated on the plaintiff’s left shoulder on 10 March 2010. At surgery, he found the following:
“… There was a large overhanging acromial beak and sub-acromial decompression was performed. There was a large thickened subacromial bursa which was excised. There was a full thickness tear of the rotator cuff involving both sides of the bicipital groove that is involving the subscapularis and supraspinatus tendon. The biceps tendon was grossly inflamed and partially torn. It was subluxing.
The rotator cuff was repaired. Good repair was achieved. Given the problems with the biceps tendon the biceps tendon tenodesis was performed.”[2]
[2]PCB 58
12 Mr Miller reviewed the plaintiff on a number of occasions following the surgery. The plaintiff continued to complain of problems with his left shoulder. Mr Miller referred the plaintiff to have an MRI scan, which was performed on 7 July 2011.[3] Mr Miller interpreted the MRI scan as demonstrating post-operative changes in the rotator cuff, a split in the biceps tendon and a partial thickness tear of the anterior supraspinatus. He reviewed the plaintiff on 29 July 2011. He considered that the plaintiff may well have developed capsulitis and tendinopathy in his left shoulder. He referred the plaintiff to have another MRI scan which was performed on 12 September 2012.[4] His interpretation of that MRI scan was that it revealed biceps tendon tenodesis and possible attritional tearing of the rotator cuff.
[3]PCB 36-37
[4]PCB 39-40
13 Mr Miller advised the plaintiff to undergo further surgery. He performed it on 24 January 2013. At surgery, he found the following:
“… He underwent a repeat subacromial decompression and the area was debrided. There was partial breakdown of the sub-scapularis tendon and this was repaired. There was hypertrophic impinging osteophytes in the acromio-clavicular joint and these were excised.”[5]
[5]PCB 64
14 Mr Miller reviewed the plaintiff on “multiple further occasions”. According to his report dated 20 August 2014, he last reviewed the plaintiff on 19 August 2014. After examining the plaintiff, his diagnosis and prognosis was as follows:
“… He suffered a rotator cuff injury with injury to the biceps tendon and subluxation of the tendon. He has undergone two surgeries for this with rotator cuff repair, biceps tendon tenodesis and subacromial decompression.
He has significant ongoing problems with post-operative capsulitis, and he has had a poor response to surgery. I am now of the view that the prognosis for the left shoulder is fair/poor.”[6]
[6]PCB 66
15 Mr Miller was asked a series of questions which are directly relevant to whether the plaintiff has any residual capacity for suitable employment:
“11.On the information available to me your client will have considerable difficulties returning to work on any significant full-time or part-time basis. He will not be fit for pre-injury work.
12.Given my understanding of his limited education, work experience and employment skills a return to work will be highly problematic in this case.
13.I do not have detailed notes in relation to his lifestyle, but it is reasonable to conclude that he will have a significant reduction in his capacity for heavy domestic and gardening activities and physical leisure and recreational activities. These are likely to be permanent.”[7]
[7]PCB 67-68
16 Dr McColl provided a number of medical reports. It is very evident that he was of the opinion that the plaintiff has no capacity to return to work. In his last, albeit very short report, built upon his preceding five reports, he said:
“His ongoing left shoulder pain and disability and his educational and vocational background will make it impossible for him to work again in any capacity”.[8]
[8]PCB 55
17 Additionally, Dr McColl provided the plaintiff with a Certificate of Capacity which is undated. However, I assume it was provided by Dr McColl to the plaintiff on 4 September 2014. Dr McColl certified that the plaintiff was unfit for work from 4 September 2014 to 2 October 2014.[9] The defendants conceded that Dr McColl had provided the plaintiff with certificates of capacity in the past, all of which were consistent with the Certificate dated 4 September 2014, that is, that the plaintiff was unfit for work.
[9]Exhibit B
The medico-legal examinations
18 I propose to only analyse the medico-legal opinions of those medical practitioners who examined the plaintiff after the second episode of surgery.
19 Professor Myers, consultant general surgeon, examined the plaintiff on 18 June 2012 and 30 January 2013. He was of the opinion that the plaintiff had suffered damage to the rotator cuff structures of his left shoulder, and from adhesive capsulitis. He considered that the plaintiff “will never” get back to regular full-time or part-time pre-injury employment. He considered that his educational and vocational background was such that he would have great difficulty in obtaining any form of employment in the future. He added that the pain in the plaintiff’s left shoulder would make it impossible for him to resume any form of physical activities. He considered that because of the plaintiff’s educational and vocational background, that he would not be suited to undertake sedentary office activities.[10]
[10]PCB 83-84
20 Dr Sutcliffe, occupational physician, examined the plaintiff on 8 November 2012 and 17 April 2014. She was of the opinion that the plaintiff had suffered a rotator cuff tear, aggravation of degenerative changes in the acromioclavicular joint, and the onset of subacromial bursitis. She was of the opinion that the plaintiff had “no capacity” for full-time or part-time employment as a sales assistant, store person or animal attendant.[11] She considered that the plaintiff might have a limited capacity to undertake work as a forklift driver for one to two hours per day, three to four days per week. She considered that employment of that kind was unrealistic because it is rarely available.[12]
[11]Each were proposed forms of suitable employment by the defendants through a report of NES Vocational Assessment Report at DCB 75-82
[12]PCB 113-115
21 Mr Kudelka, orthopaedic surgeon, examined the plaintiff on 10 June 2014. He appears to agree with the diagnosis and prognosis of Mr Miller. He considered that the plaintiff had been left with a significant impairment of his left shoulder. He considered that the plaintiff had no capacity to work in his pre-injury employment as a process worker. He considered that employment as a sales assistant, pest controller and animal attendant were too physically demanding for the plaintiff. He considered the plaintiff’s level of education for clerical, administrative and office work. He did not consider that he was fit for any of those forms of employment. He also considered the plaintiff’s retraining as a road traffic controller, and noted that the plaintiff had not been able to obtain work in that occupation.[13]
[13]PCB 116-118
22 The plaintiff was examined by two medical practitioners for the defendants following the second episode of surgery. The first of those was Dr Yong, occupational physician, who examined the plaintiff on 28 May 2012 and 11 June 2014. Dr Yong’s diagnosis of the plaintiff’s injury is consistent with the diagnosis made by Mr Miller. He considered that the plaintiff had a work capacity, so long as he worked within the following restrictions: avoid left arm repeated above shoulder height tasks or reaching duties; avoid left arm repeated firm pushing and pulling, and avoid lifting more than 5 kilograms on a repeated basis. He was provided with the NES Report, which referred to the duties required of a sales assistant, store person, pest and weed control and animal attendant.
23 Dr Yong very fairly considered that the employment options of sales assistant, store person, pest and weed controller and animal attendant would require an individual assessment of the role and the plaintiff’s capacity to undertake the tasks involved. He considered that the employment option of sales assistant in a sports store or fitness centre was reasonable, and I take that to mean that he considered it was suitable employment for the plaintiff.
24 I have looked at the job description of sales assistant. It is a very curious description because it is an aggregate of the tasks of a sales assistant in the fabric, clothing and footwear industry, and also in a sports store or fitness centre. Most of the duties are relevant to the fabric, clothing and footwear industry. Very few seem to be relevant to a sports store or fitness centre. For example, the only tasks relevant to a sports store or fitness centre would be:
· selling footwear and clothing;
· operating cash registers, accepting payment in preparing sale invoices;
· stacking and displaying sale items and wrapping and packing goods which have been sold;
· taking customer measurements in selecting correct sizes of goods; and
· checking stock and participating in stocktakes.
25 I will return to this subject later in these reasons. I do not accept that the employment option which Dr Yong thinks is suitable is suitable employment for the plaintiff.
26 Mr Buzzard, general surgeon, examined the plaintiff on 23 October 2013. He described the injury as left shoulder rotator cuff pathology. On examination, he considered that the plaintiff had a good range of movement, but appeared to have pain in excess of what he would have expected in the circumstances. He considered that the plaintiff could work as a forklift driver and would be capable of carrying out his pre-injury employment.[14]
[14]DCB 73-74
The Plaintiff’s evidence
27 The plaintiff last worked for the first defendant on 16 October 2010. He was employed at its Melbourne office. He worked one four-hour shift. During that shift, he was given the task of shredding documents. He was told that if there was any other work available for him, that he would be contacted. No contact has been with him since.
28 The plaintiff obtained employment with an organisation known as Licensing Essentials in mid 2012. He was employed as a forklift driver. He worked about four or five days for 7.5 hours per day. After some time, his working days were reduced down to two days. He struggled to keep up with the work. That led to his resignation.[15] Since undergoing the second bout of surgery, he has been certified as being unfit for any duties.[16]
[15]PCB 20 and Transcript 13
[16]Exhibit B
29 Mr Middleton cross-examined the plaintiff relevant to his transferable skills, and what residual capacity he retains to return to suitable employment.[17] I do not accept that the plaintiff can return to work in any of the occupations which he has worked in before he was injured, nor the occupations he has worked in since he suffered injury, and before he was operated on for the second time. Those forms of employment appear to me to be entirely out of keeping with all of the medical evidence, except for Mr Buzzard, whose opinion I will deal with later in these reasons. What I am left with to consider, is whether the plaintiff is totally incapacitated, or whether he can work as a sales assistant in a sports store or fitness centre.
[17]Transcript 11-16
30 What is of particular relevance is that the plaintiff is presently taking a very large volume of medication prescribed by Dr McColl. He takes Mobic, 15 milligrams (an anti-inflammatory), and OxyContin, 30 milligrams, and OxyNorm (both painkillers).
31 Before turning to whether I accept that the plaintiff has suffered a loss of earning capacity which meets the statutory test, I must deal with a number of issues raised by Mr Middleton.
Other issues
32 Mr Miller considered that the plaintiff had also developed a Chronic Pain Syndrome. The question posed by Mr Middleton was whether that was physically based or psychologically/psychiatrically based.
33 I do not accept that even if the plaintiff has developed a Chronic Pain Syndrome that it is an issue of any importance at all. It is very clear to me that Mr Miller has based his opinions regarding the plaintiff’s capacity for suitable employment on the impairment resulting from the injury to the plaintiff’s left shoulder. The evidence of an emerging Chronic Pain Syndrome is an additional problem. Mr Miller has not said that the emerging Chronic Pain Syndrome has clouded his ability to express a clear and unequivocal opinion on capacity for suitable employment arising from the injury to the plaintiff’s left shoulder.
34 The next issue is the diagnosis made by Dr McColl, that some of the pain experienced by the plaintiff in and around his left shoulder might have been related to a thoracic impingement syndrome. He referred him to the Austin Hospital Outpatients Clinic on 31 October 2013. According to the entry in Dr McColl’s clinical notes dated 14 November 2013, he was waiting on the opinion of a vascular specialist regarding whether the plaintiff was suffering from a thoracic outlet syndrome.[18] The plaintiff said that he attended the Austin Hospital. He was seen by a vascular specialist. He was not given any treatment, nor any recommendations for treatment. He was told he was stuck with his situation.[19]
[18]Exhibit 2
[19]Transcript 16-17
35 I do not accept that the thoracic outlet syndrome is of any real relevance to whether the impairment of the function of the plaintiff’s left shoulder has resulted in a total incapacity for suitable employment. Quite evidently, the diagnosis was made in October/November 2013, when it is clear that Dr McColl and Mr Miller considered that the plaintiff had a very poor prognosis, and in particular, was unfit for suitable employment. Furthermore, there is nothing in any of Dr McColl’s reports to suggest that the thoracic outlet syndrome is of any significance relative to the plaintiff’s left shoulder injury.
36 Lastly, it was submitted that the plaintiff fails in his application for leave because he has not undergone any relevant rehabilitation or retraining, and therefore, s134AB(38)(g) means that he has not established the requisite degree of loss of earning capacity. I do not accept that is the case. The plaintiff attempted to continue working. He returned to work after the first episode of surgery. He attempted to qualify for alternative work. The fact is that he took steps, which in the end were fruitless, because the nature and extent of the impairment of the function to his left shoulder has reduced his capacity for employment to practically nothing.
37 It must be remembered that the plaintiff has a very good working record. That is demonstrated by what he said in his first affidavit. Between 1986 and March 2009, when he commenced employment with the first defendant, he was fully employed. That is a period of 23 years. He strikes me as a man who has been committed to obtaining work, and holding onto it. His evidence demonstrated that very same ethic. Following the occurrence of the injury, he attempted to return to employment and to obtain alternative and suitable employment. I reject the submission.
Conclusion
38 I find that the plaintiff suffered the injury to his left shoulder described by Mr Miller. I accept Mr Miller’s opinion on all issues relevant to this application in preference to the opinion of any of the other medical practitioners who have examined the plaintiff. In any event, there is widespread acceptance that the plaintiff has suffered a major injury to his left shoulder, which has very seriously impaired his capacity to work in his pre-injury employment, or in any suitable employment.
39 Therefore, I find that the loss of earning capacity consequences contended for by the plaintiff meet the statutory test. In reaching that conclusion, I have made the relevant comparison with other impairments of a light kind as I am obliged to do.
Orders
40 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages.
41 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
Afterword
42 I reject the opinion of Mr Buzzard. Firstly, Mr Buzzard is not an orthopaedic surgeon. The injury to the plaintiff’s left shoulder is within the specialty of orthopaedics, not in the area of general surgery, which was the province of Mr Buzzard. Secondly, his opinion is extraordinary because it must be that the plaintiff has suffered a relatively modest injury if it is to be the case that he can return to his pre-injury employment. It compares very poorly with the opinions of the other surgeons who have been retained in this proceeding, all of whom are undoubtedly surgeons of the highest rank.
43 Serious injury applications are a major part of the work of the Court in the Damages and Compensation List. I would have thought by now that the parties would be far more assiduous to ensure that they engage specialists who have the particular and current expertise in the area relevant to the injury which is said to cause an impairment of body function and relevant consequences. The retention of specialists who are outside the particular field of enquiry is pointless. The retention of specialists who the parties believe will give opinions favourable to their side is also pointless. The need for independent and impartial opinions is absolutely necessary, and I would have thought consistent with the overarching obligation of the parties pursuant to the now well-known provisions of the Civil Procedure Act 2010.
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