Dickman v Nestle Australia Ltd
[2008] VMC 13
•14 November 2008
IN THE MAGISTRATES COURT OF VICTORIA
AT WORKCOVER
WORKCOVER
Case No. W02468994
| Dickman | Plaintiff |
| v | |
| Nestle Australia Ltd | Defendant |
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| MAGISTRATE: | P Lauristen |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6, 7 November 2008 |
| DATE OF DECISION: | 14 November 2008 |
| CASE MAY BE CITED AS: | Dickman v Nestle Australia Ltd |
| REASONS FOR DECISION |
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Catchwords: Accident Compensation Act 1985 – extent of incapacity to work - reasonable
effort to participate in return to work plans or return to work
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | ||
| For the Defendant HIS HONOUR: |
Introduction
1. The plaintiff seeks weekly payments of compensation from 23 February 2007 at the rate applicable for no current work capacity. She does so under the Accident Compensation Act 1985 (the Act). She also seeks a declaration of a compensable injury in relation to her left shoulder[1].
[1] This relief was not part of the plaintiff’s statement of claim. In his brief opening, the plaintiff’s counsel advised
Issues
2. This proceeding raises these issues: (a) the extent of the plaintiff’s incapacity for work;
[2] See paragraph 10(b) of the defendant’s notice of defence filed 4 October 2007.
(b)
whether the plaintiff failed to make every reasonable effort to participate in return to work plans or return to work in suitable employment[2];
(c) whether a declaration should be made in relation to the plaintiff’s left shoulder. The circumstances
3. The plaintiff commenced employment as a process worker with the defendant in 2001 at its factory in Broadford. She worked in that capacity on a part-time basis until 2005 when she became a full time employee. The plaintiff is now 46. She lives with her husband in Broadford.
4. The defendant’s Broadford factory manufactures non-dairy confectionary including jellied items such as snakes, jelly beans and chicos.
5. At about 1.05 pm on 15 February 2006, the plaintiff was banging a tray in order to loosen the lollies inside when she felt her right shoulder “ping”. The lollies were sticky and stuck to themselves as well as the side of the tray. Her shoulder swelled immediately. She attended first aid where her shoulder was “iced”. She was referred to a general practitioner, Ian Reynolds. He saw her on 16 February. He arranged an ultrasound and certified her fit for light duties. She underwent physiotherapy. He injected her shoulder with hydro-cortisone on 22 February and 23 March 2006. A MRI was arranged, which disclosed a rotator cuff muscle injury. Thereafter, she attended her own general practitioner, Geetha Venkatram (Venkatram).
6. The plaintiff made a claim for compensation on 16 February 2006. Her claim was accepted. Nevertheless, she continued to work. The plaintiff is right handed.
7. In September 2006, she was told to do a job she felt unable to do. It involved lifting. After 20 minutes, she experienced a massive pain in her right shoulder. She went to first aid. She has not returned to work since.
8. Venkatram referred the plaintiff to an orthopaedic surgeon, Anita Boecksteiner (Boecksteiner).
9. In February or March 2007, the plaintiff started experiencing sharp pain in her left shoulder. Owing to the condition of her right shoulder, the plaintiff had favoured her left arm when performing her household duties. These duties included vacuuming, cleaning and making beds. She estimated that she used her left arm 80% of the time when performing these duties as opposed to 20% to 30% prior to the injury.
10.A MRI was performed on her left shoulder and revealed degenerative changes in the supraspinatus tendon with bursitis. No tear was demonstrated.
11.The plaintiff received a number of documents entitled “offers of suitable employment” from the defendant. Three were exhibited. The first of the exhibited offers is dated 17 January 2007. It specifies certain duties – sorting sweets without lifting sweet boxes onto the sorting table; using the “B.T transporter; roll wrapping (packing duties only); Line A and D Machine Operation duties only; Line B Machine operation only where the Pallecon is used. There were a number of restrictions applicable to these duties – avoid manual handling of any filled shippers, sweet trays or refilling the shipper stacking machine; request assistance for any non-repetitive lifting, greater than 2 kg; no repetitive manual handling; 30 minute rotation of duties; avoid over use of left hand/arm; and work with the plaintiff’s medical restrictions at all times. The plan covered a period of 7 days when it would be reviewed.
12.The second exhibited offer is identical with 17 January offer except for different dates. It also covered a 7 day period when it would be reviewed.
13.The third exhibited offer, which was the subject of most attention during the hearing, is dated 12 February 2007. It proposes a commencement date of 19 February and a finishing date of 30 March. She is described as a “supernumerary”, which meant that she was an extra person to a particular crew. It provided for restrictions on the work to be performed:
(a) no handling with either arm of items greater than 2 kgs in weight;
(b) no repetitive work on process lines;
(c) an ability to adjust posture as required.14.Her proposed duties would include but were not limited to:
(a) sorting sweets at a bench;
(b) completing tasks at the roll wrapping machine;
(c) quality checking bags.
15. What the other, unspecified, duties could have been did not emerge in the evidence.
16.Each of these duties is described in the document. In relation to (a), it is stated – “This will enable [the plaintiff] to sit/stand as required. [The plaintiff] will not be required to lift any bulk boxes of stock”. In relation to (b) – “This involves picking lollies using tweezers in a sitting or standing position prior to the lollies being wrapped and packing the rolls into boxes. Full boxes of stock are not able to be handled by [the plaintiff] at this stage in her recovery”. And in relation to (c) – “..this involves handling single bags at any one time at waist level. The bags are checked for bag integrity, seal integrity, coding line integrity and hole punch integrity. It is understood that the machine is also checked for metal detector integrity. There is nil carrying bulk stock at this site.”
17.The plan proposed 9 hours work per week over a period of 11 days, followed by 12 hours per week in the next 11 days and 20 hours per week in the final 11 days. Presumably, a review would on or after 30 March.
18.Each of the three duties was depicted in short films. These films were shown several times in court but were not formally tendered into evidence. Two of the three duties were described by an occupational physician, Dominic Yong (Yong)[3]. “Sorting sweets” is performed either sitting or standing. The employee removes sweets of inappropriate quality from a tray and places them in a scrap bin. It is a self-paced task. The “roll-wrap” machine packs circular sweets such as “Lifesavers”. A number of persons are involved in different tasks. One task is the removal of defective sweets from the conveyor belt using tweezers. Yong also described the use of a motorised trolley (BT or battery trolley) and the tasks of the direct feed line.
[3] See report dated 14 August 2008 (exhibit 10).19.Acting on the advice of her surgeon and general practitioner, the plaintiff rejected this offer. Her weekly payments ceased on 23 February 2007 following a notice dated 21 February. The notice asserted a failure to comply with s 93CB(3)(b) of the Act. It particularised the grounds of the failure:
(a) her failure to participate in a return to work plan; and
(b) her failure to make every reasonable effort to return to work in suitable employment at her place of employment in co-operation with the defendant and the authorised agent. 20.The notice contains descriptions, with dates, of a number of contacts with various persons including a “rehabilitation” representative. None of this was the subject of evidence except to a very minor extent in the evidence of Jordan O’Neill.
Boecksteiner
21.Boecksteiner saw the plaintiff on 29 May 2006. She injected into the subacromial space of the shoulder with Kenacort to help reduce the swelling. Three weeks later, Boecksteiner again injected the shoulder with Kenacort. She saw the plaintiff again on 26 July and 23 August 2006.
22.Boecksteiner saw the plaintiff again on 12 February 2007. Boecksteiner “rejected” the return to work plan sent to her by the defendant “because it has repetitive process line activities described in it”. She added in a report to Venkatram:
“…they [the defendant] do not seem to understand that the repetitive nature of arm movements is what [is] worrying her. Moving sweets around with the tweezers requires the shoulder to be held up and moved in space and this is quite irritating for her rotator cuff.”
23.MRI of both shoulders were undertaken on 17 February 2007. To Boeksteiner, these showed active inflammation and swelling in both shoulders with the right shoulder showing thinning, which she noted is sometimes called partial tearing[4].
[4] The radiologist’s conclusion in relation to the right shoulder was – “tendonosis of anterior supraspinatus with
24. She returned to this point in a report dated 15 March 2007[5]:
“Mr Brian Davey (sic) has written he thinks that she can carry out this work because there are restrictions to avoid symptoms in the right and left shoulder. Last time I looked at sorting sweets at a bench that needed to be done with the shoulders positioning the arms in front of you between the breast and waist height and the sweets needed to be lifted and moved from side to side. This is repetitive work that requires the shoulder muscles to lift and hold the hands in a position in space. It is not doing work with the arms by the side. I do not really understand how process worker[s] can work with their arms by their side.”
25.According to Boeksteiner, the pain experienced by the plaintiff is due to the active inflammation and not a partial or full thickness tears in the rotator cuff. The recurring comment made by Boecksteiner to the defendant and the plaintiff’s solicitor and in her evidence is the plaintiff’s inability to perform manual, repetitive work without causing pain to her arms. In a report to the authorised agent, she said[6]:
[6] Report to Cambridge Integrated Services dated 11 November 2007.“I understand it is frustrating for one’s business when a person has an injury from oversuse but the natural history of the condition that Jane [the plaintiff] has is that it will flare up when any repetitive movements which use this muscle are resumed. If a patient continues to do these things while the muscle is inflamed, then obviously the pain will continue.”
26.Boecksteiner was shown short films of the three duties in the 12 February 2007 offer. She considered each was unsuitable for the plaintiff because of the repetitive movements involving the shoulder.
Kudelka
27.The plaintiff has been examined by an orthopaedic surgeon, Peter Kudelka (Kudelka) at the request of the authorised agent and the defendant on several occasions. His first examination occurred on 25 May 2006. He took a history of 38 hour working week and duties which avoided strains to her shoulder. light duties. Her symptoms were not improving. His examination revealed restricted movement in the shoulder. He diagnosed a rotator cuff muscle injury with some swelling. He felt she was unfit for her pre-injury duties since she could not lift her right arm above the horizontal and could not lift weights greater than 5 kilograms. By 9 June 2006, he had seen a return to work plan and considered it suitable because it contained those limitations.
28.Kudelka re-examined the plaintiff on 21 September 2006. This examination occurred after the aggravation of her symptoms when she was transferred from office duties to the manually repetitive work of the factory floor. His examination revealed restricted movement in the shoulder and these were somewhat greater than those found on his first examination. He felt she was fit for modified duties. She was unlikely to return to her pre-injury employment but was capable of working 38 hours per week in an office capacity.
29.A copy of a return to work plan, dated 2 October 2006, was provided to Kudelka for comment. It provided for a mixture of factory and office work. Subject to further inquiry, he felt that the “office and administrative training” aspect was suitable but repetitive manual work as a machine operator was not.
30.The plaintiff was again re-examined by Kudelka on 2 April 2008. By now, she was suffering from anxiety due to the financial consequences of the termination of her employment in January. She was taking an anti-depressant, Efexor. She complained of pain and he found limitation of shoulder movement, although the details of the limitation are not disclosed in his report.
31.Finally, the defendant’s solicitors sent Kudelka some written material and five DVDs. He viewed the DVDs, which took 80 minutes. Among other things, the DVDs depicted the type of work which the plaintiff was being offered. Kudelka did not think that she was capable of the duties depicted. He felt her refusal to attempt repetitive manual duties was not unreasonable given the damage to her shoulder. In view of the declaration sought by the plaintiff in relation to her left shoulder, Kudelka did not think that her employment was a significant contributing factor to her left arm or shoulder symptoms.
32.During his evidence, Kudelka was shown excerpts of DVDs depicting the three forms of duties specified in the job offer dated 12 February 2007. He re-affirmed his view that those duties were unsuitable for the plaintiff.
Yong
33.Dominic Yong (Yong) specialises in occupational medicine. He examined the plaintiff on 10 January 2007 at the request of the authorised agent. He considered that the plaintiff had suffered right shoulder supraspinatus tendinopathy, subacromial bursitis and impingement. He found restricted movements in each shoulder with greater restriction in the right. He considered that she could return to work in alternate or modified duties. The extent of those duties would be restrained by certain restrictions – no overhead tasks; no reaching tasks; aim to have the majority of the work close to the body; avoid repeated pulling and pushing with the arms; and avoid lifting more than 5 kg on a repeated basis. If the left shoulder was excluded from consideration, Yong felt the same restrictions would apply.
34.Yong was asked to comment on the 31 January 2007 offer and thought that it was reasonable subject to an additional time restriction on BT driving. There should be a maximum of three 20 minute sessions of BT driving per day.
35.After reading Boecksteiner’s letter dated 15 March 2007, Yong commented – “Despite the arms being beside the body, the individual can still be able to perform bench work as long as their work is performed close to the body. Therefore there is a capacity to do light sorting work, sub-assembly tasks or office duties”.
36.Yong re-examined the plaintiff on 14 August 2008. He saw her very shortly after she had undergone a right shoulder arthroscopic decompression and bursectomy. He could not examine the right shoulder because the arm was in a sling and was not moved during the examination. The surgery occurred on 5 August. Yong considered the plaintiff unfit for work for 8 weeks after surgery. Significantly, Yong inspected the plaintiff’s workplace on 14 August and observed the various duties mentioned in the offers (see above).
37.During his oral evidence, Yong viewed the films depicting the proposed duties and conceded that each was unsuitable for the plaintiff to perform in all or in part.
38.Yong’s last report, dated 20 August 2008, set out his comments after viewing surveillance films and surveillance logs of the plaintiff between October 2007 and February 2008. Neither these films nor the logs were shown to the court or shown or put to the plaintiff or any of the other medical witnesses except, perhaps, Kudelka. I have no means by which to evaluate the views expressed in that report insofar as they relate to the plaintiff’s ability to undertake the duties contained in the offers and, especially that of 12 February. However, since Yong’s reports were tendered by consent, I cannot disregard its contents. The opinions expressed in the 20 August report bear on the issue of the plaintiff’s capacity to work.
Davie
39.Brian Davie (Davie) is an orthopaedic surgeon. He examined the plaintiff on 20 February 2007 at the request of the authorised agent. On examination, he also found restricted movement in the right shoulder but none in the left. There was forward flexion of 110 degrees and abduction of 90 degrees. He did not think that she could resume her previous duties as a process worker but:
“could do work with the arms mainly to the side, such as at a bench and she could do clerical duties. She wouldn’t be able to do pulling and pushing activities with the upper limbs with the arms away from the side above shoulder or waist height.”
40.Davie was provided with a “return to work program” (presumably the offer dated 12 February 2007) and thought the plaintiff could carry out the duties “as there are restrictions to avoid symptoms in the right and left shoulders”. He re-affirmed this view after being provided with a copy of a report from Boecksteiner in light of his findings of forward flexion and abduction.
41.I did not hear from Davie. His reports were tendered into evidence. He did not have the opportunity of viewing the films. His views were not tested in cross-examination.
42.I heard from Venkatram. She has treated the plaintiff in relation to the right shoulder from shortly after 15 February. She saw the films of the proposed duties. She thought that they were inappropriate for the plaintiff. Previously, the plaintiff had described the duties to her. On the basis of the descriptions, Venkatram advised the plaintiff not to undertake the duties. However, it is fair to say that Venkatram’s opinion of the inappropriateness of the duties is drawn largely from Boecksteiner for she has great confidence in Boecksteiner’s views. Nevertheless, Venkatram affirmed Boecksteiner’s view of the inappropriateness of the duties to the plaintiff.
Relevant provisions
43.For the purposes of this proceeding, since 1997, a worker’s entitlement to weekly payments has been divided into two periods – a first entitlement period; and a second entitlement period. The first entitlement period encompasses an aggregate period of 13 weeks of weekly payment or entitlement to such while the second entitlement period encompasses an aggregate period of 130 weeks including the first period. An important difference between the periods is the rate of weekly payment. It is higher during the first period than the second.
44.The entitlement of a worker to weekly payments in either period is dependent upon that person doing certain things. The nature of those things varies according to the extent of a worker’s incapacity for work and whether the worker’s employer offers suitable employment. For example, if a worker has a current work capacity, then there is an entitlement to receive weekly payments only if he or she:
(i) participates in an occupational rehabilitation service or a return to work plan; and (ii) makes every reasonable effort to return to work in suitable employment at the worker’s place of employment in co-operation with the employer and the Authority or with the self-insurer (as the case may be); (iii) makes every effort to return to work in suitable employment at another place of employment; (iv) participates in assessments of the worker’s capacity, rehabilitation progress and future employment prospects when required by the Authority or self- insurer.
45.In this proceeding, the burden of proofing each of the above matters lies on the defendant[7]. Where an assessment of “reasonableness” is required, one looks at the worker’s behaviour objectively[8].
[7] Cox v TCC Corporation and anor., 16 November 2000 at p 6 per Judge Lewis.[8] T & G Industries Pty Ltd v Randjelovic [2006] VSC 316 at [16] per Osborn J.46.A “return to work plan” is defined in s 5 as “a return to work plan under Part VI”. Part VI includes s 160 and sub-s (1) sets out the contents of a return to work plan. An essential content is an offer of suitable employment[9]. The expression “suitable employment” is defined as employment in work for which the worker is currently suited having regard to a number of factors[10].
[9] S 160(1)(a)(iii).[10] S 5(1).47.Whether a worker participates in a return to work plan must be seen in the context of a particular return to work plan. If the plan contains work that is unsuited to the worker then the act of seeking advice from a medical practitioner may be participation for the purposes of the provision. If the plan contains suitable work then seeking advice and undertaking the work may amount to participation.
48.Similarly, making every reasonable effort to return to work in suitable employment at the worker’s place of employment, etc., may be satisfied in the case of unsuitable work by seeking medical advice in respect of it.
Discussion
S 93CB(3)49.None of the exhibited offers contained an offer of suitable employment. Each described work which was unsuited to the plaintiff given the nature of the injury to her right shoulder. They were unsuited because of the repetitive nature of the work. The activities would have led to further injury to the plaintiff.
50.In reaching that conclusion about the injury, I rely on the opinions expressed by Boecksteiner and Kudelka. Both are experienced orthopaedic surgeons. Boecksteiner is the plaintiff’s treating surgeon. She has more knowledge and understanding of the plaintiff’s shoulder condition than anyone else. Kudelka is a highly respected and experienced orthopaedic surgeon. In this instance, he has examined the plaintiff on a number of occasions. Yong largely agrees with the view that the duties described in the 12 February offer were unsuitable. Davie is also an experienced orthopaedic surgeon. He has seen the plaintiff once in 2007. He did not view the films of the three activities. His opinion must pale when compared to those of Boecksteiner and Kudelka because of their greater contact with the plaintiff.
51.The plaintiff sought the advice of her medical practitioners in relation to the exhibited offers, especially that of 12 February. They advised her against engaging in the activities contained in them. She accepted that advice. It was reasonable for her to accept that advice and act on it. She was a patient and they were her medical advisers. In the absence of a compelling reason, acting contrary to their advice would have been unreasonable. The reasonableness of her action in accepting and acting on that advice is emphasised by the fact that the advice was medically correct.
52.The defendant has not established a relevant failure of the plaintiff under s 93CB(3)(a) or (b).
Degree of incapacity
53.In relation to the degree of the plaintiff’s incapacity for work, she contended that she had no current work capacity since 23 February 2007. Save for the period of 8 weeks following her operation on 5 August 2008, I do not accept that contention. She had the capacity to undertake clerical duties. Unfortunately, the defendant would not offer her such work even though she had performed it previously.
Declaration
54.Although not part of the relief sought by the plaintiff in her statement of claim, the plaintiff sought a declaration in these terms – that she had sustained an injury to her left shoulder arising out of or in the course of her employment with the defendant. The defendant did not disagree with my consideration of this issue. Such a declaration was said to be relevant to the plaintiff’s claim for compensation under s 98C.
55.I am satisfied that the injury to the left shoulder arose out of or in the course of her employment because the plaintiff favoured her left arm extensively owing to the pain in her right arm. This favouring when using led to the pain she experienced in that shoulder. This is so even though some time separated the cessation of her work with the defendant and the onset of pain in the shoulder.
ORDERS:
56.The plaintiff is entitled to the following:
(a)
an order for weekly payments of compensation from 23 February 2007 to the present as for a person with a current work capacity except for a period of 8 weeks starting on 5 August 2008 when she had no current work capacity (amount reserved);
(b)
a declaration that the plaintiff suffered an injury to her left shoulder arising out of or in the course of her employment with the defendant.
57. I will seek the parties submissions on the questions of interest and costs
me that this declaration was sought. The defendant did not argue against the consideration of the
issue.
probable partial thickness undersurface tear and bursal odema, probably from impingement”.
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