Duricic v Feltex Australia Pty Ltd
[2010] VCC 1735
•30 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-03046
| KATICA DURICIC | Plaintiff |
| v | |
| FELTEX AUSTRALIA PTY LTD | First Defendant |
| and | |
| CAMBRIDGE INTEGRATED SERVICES VICTORIA PTY LTD | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 and 31 August 2010 and 1 September 2010 |
| DATE OF JUDGMENT: | 30 November 2010 |
| CASE MAY BE CITED AS: | Duricic v Feltex Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1735 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.82, s.93, s.98C, s.102 and s.103.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A M Malpas | Victorian Compensation Lawyers |
| For the Defendant | Ms H Donmez | Minter Ellison |
| HIS HONOUR: |
Introduction
1 Katica Duricic (“the plaintiff”), who I shall refer to as “the worker”, claims compensation against Feltex Australia Pty Ltd (“the first defendant”), who I shall refer to as “the employer”, pursuant to the provisions of the Accident Compensation Act 1985, as amended (“the Act”). The employer denies that the worker is entitled to any type of compensation.
The Evidence
2 The worker, Dr A Sheriff (the treating general practitioner of the worker), Mrs Staka Jeftic (a workmate of the worker), and Mr Mark Allan Blight (a representative of the employer), all gave evidence and were cross-examined.
3 The plaintiff tendered the following material:
(i) Reports of Dr Sheriff dated 26 January 2008, 28 July 2008 and 15 March 2010, found respectively at pp.30, 34 and 37 of the Plaintiff’s Court Book (“Exhibit A”); and (ii) Pages 20–45 and 83–204 of the Plaintiff’s Court Book (“Exhibit B”). 4 The defendant tendered the following material:
(a) Two DVDs dated August 2009 and July 2010 (“Exhibit 1”); (b) Pages 46–82 of the Plaintiff’s Court Book (“Exhibit 2”); (c) Application for leave dated 23 January 2003 (“Exhibit 3”); (d)
Reference dated 15 August 2005 from Feltex addressed “To whom it may concern” (“Exhibit 4”);
(e)
Letter from Cambridge to the worker dated 16 November 2007 (“Exhibit 5”); and
(f)
Letter from Compensation Lawyers in respect of an examination by Dr F Laska posing various questions, together with report from Dr F Laska dated 29 March 2009 (“Exhibit 6”).
The Proceeding
5 By way of Amended Statement of Claim, the worker alleges, amongst other things, that:
(a)
She was employed by the employer as a machine operator from about 9 September 1985 to 28 August 2005;
(b)
Pursuant to ss.82 and 5 of the Act, she suffered injury to her left arm (including the shoulder), her right arm (including the shoulder), her cervical and lumbar spine, and psychological injuries including but not limited to stress, anxiety and depression;
(c)
Such injuries were suffered during the course of her employment from 20 October 1999 to on or about 28 October 2005, and in particular in February 2003;
(d)
On or about 29 October 2007, she lodged a claim form pursuant to the provisions of the Act in relation to a left arm and shoulder injury occurring in or about February 2003 (“the first claim”). The first claim was rejected by the agent of the employer on or about 16 November 2007;
(e)
On or about 29 November 2007, she lodged a claim pursuant to s.98C of the Act seeking compensation for permanent impairment in relation to the left arm, right arm, the cervical spine, and psychological-psychiatric injury arising in or about February 2003 (“the second claim”). Such claim was rejected by the agent of the employer on or about 21 December 2007;
(f)
On or about 4 September 2009, she lodged a further claim for compensation pursuant to the provisions of the Act claiming benefits in relation to the lumbar and cervical spine, right arm, and psychological- psychiatric injury arising in or about February 2003 (“the third claim”). On or about 8 October 2009 the agent of the employer rejected the third claim; and
(g)
All the claims have been referred to conciliation pursuant to the provisions of the Act.
6 In such circumstances, the worker seeks weekly payments of compensation and the payment of medical and like expenses in respect of the injuries the subject of the first and third claims, and a declaration that the injuries listed in the second claim arose out of or in the course of her employment with the employer so as to enable her to claim lump-sum compensation pursuant to s.98C and/or s.98E of the Act.
7 By way of their defence, the employer and the second defendant admit the employment of the worker, deny injury, admit that the various claims for compensation were made and denied, and in particular assert the following:
(a)
The worker’s claimed injuries did not arise out of or in the course of her employment with the employer;
(b)
The worker is deemed not to have made a claim against the employer by virtue of s.103(5) of the Act;
(c) The worker is no longer incapacitated; (d)
Any incapacity now suffered by the worker no longer results from or is materially contributed to by any injury arising out of the course of her employment with the employer;
(e)
In any event, the worker is not entitled to receive weekly payments for a period in excess of 130 weeks on the ground that she has a current work capacity, and, if she has an incapacity (which is denied), such incapacity is not likely to persist indefinitely.
8 For completeness I point out that the Amended Defence did contain a defence based on “notional earnings”. I was informed by counsel for the defendant that her client did not rely on such defence (see T240 L7–T241 L20). Furthermore, although s.102 was not pleaded in their Defence, it was effectively common ground that s.102 was relied on as a defence to the matter as early as the letter of rejection. Accordingly, I allowed the employer and the second defendant to rely on a Defence pursuant to s.102 and a Further Amended Defence setting out the reliance on such section.
The Evidence of the Worker
9 The worker gave the following pertinent evidence:
• She is a sixty-year-old (born 23 December 1949) woman who was born in Croatia and is now on a disability support pension. • She is naturally right-handed. • In the past she has been married, and later was involved in a de facto relationship, and has four children ranging from twenty-nine to forty-one. • Prior to commencing work with the employer, she had been in employment on a full-time basis since the age of sixteen, save for those periods when she gave birth to her children, when she was off work for about twelve months each time. • When asked to describe the nature of her work with the employer, the worker stated: “I was working on a machine, so from stillage to machine I was putting tubes with that left hand, with the right hand I have to cut the string on the bottom which was oily, so doesn’t go through the carpet, and the tubes weigh four, four and a half, sometimes to five kilos, and that was eight hours a day every day.”
(See T16 L17–22.)
• She sometimes worked on Saturdays and overtime, but “not very often” (see T16 L23–27.) • She performed the same job with the tubes over the time that she was with the employer. • When asked what happened in February 2003, the worker stated: “Well, I wasn’t sure actually what happened. I started getting pain in my left hand and going right up to the shoulder, which I thought was just a muscle. I did report it and I put it in a book twice at work.
HIS HONOUR: Sorry, you did what?---I did report, make a report in the book at work.
Did a report in book at work?---Yes.
What book was that?---That was like an injury book we had at work.
What date did you say this was approximately?---I’m not sure –
January, February - - -
Of 2000 and - - -?---2002, 2003, about that.”
(See T16 L30–T117 L11.) (my emphasis)
•
When asked to describe what she did with her left and right hands when performing such work, the worker stated:
“[Question] Perhaps if you could stand up and show?---Yes. Well,
I kind of grab the tube with the left hand.
The tube is what, a tube of what?---Of wool.
A tube of wool?---Wool for carpet.
What size was that. Just hold up so everybody can see you. Perhaps just step outside so we can all see. Just turn slightly side on so everyone can see in the court?---(Witness demonstrating.)
From one side to the other side how wide?---(Off microphone.) About that wide, they were round.
Right so what do we say the diameter is?
MS MALPAS: 12 inch or - - -
HIS HONOUR: More than 12 inch to me, I though it was close to about 15 inches but - - -
MS MALPAS: Yes, Your Honour. was it?---(Off microphone.) Yes, all wool.
And it was like that?---(Off microphone.) Yes.
I think you’ve told me it weighed anything between four and a half to five kilograms?---(Off microphone.) Yes.
Where did you pick it up from?---(Off microphone.) From the stillages.
And the stillages were brought to you?---(Off microphone.) Yes.
By a forklift?---(Off microphone.) Yes.
What did you do once you picked it up?---(Off microphone.) Grab it from the stillage.
With what hand?---(Off microphone.) Left hand.
Yes?---Right hand. You’ll see this cut the (indistinct).
Yes?---(Off microphone.) And put on the machine.
How did you put it on the machine?---(Off microphone.) With the left hand as well.
At waist level like you’re showing or did you have to reach up or bend down on this one?---(Off microphone.) I have to bend down and I have to reach up real high because (indistinct) they both go on the cones.
(my emphasis)
It goes on the cones?---(Off microphone.) On the cones.
Felt – this wool, what did the machine make?---(Off microphone.)
Carpet.
Carpet. And how many times in a day did you have to lift the wool?---
(Off microphone.) I would maybe - - -
Well, in an hour maybe?---(Off microphone.) Under 400.
An hour?---(Off microphone.) Yes.
Yes.
MS MALPAS: Could you show His Honour the height you would have to put the cones to put them on the machine?---(Off microphone.) Very high.
Could you indicate anything in the court room which is approximately the level if you look around you?---(Off microphone.) Yes, about the camera.
About the camera?---(Off microphone.) Yes.
Can you reach your left arm up to that level?---(Off microphone.)
I can’t.
...Now, when you had to put the wool on the machines was it always that high or was it different times different heights of the machine? ---(Off microphone.) It’s always the same height.”
(See T17 L18–T19 L13) (my emphasis)
•
She initially treated herself with painkillers and did not attend her doctor “straight away” (see T19 L15-19).
•
After telling her employer, she was told to put it in a book, and nothing else was done.
•
There was a change in her work when she asked for it, and she believes that she asked for changes every couple of weeks. She asked for such changes because she realised it was getting “worse and worse” (see T19 L30).
•
She did go and see her doctor, she believes, a couple of months later, and was prescribed painkillers.
•
She was asked about whether she thought about making a compensation claim, and she gave the following evidence:
“Did you think about making a compensation claim?---(Off
microphone.) No.
HIS HONOUR: Why not?---(Off microphone.) Because I wasn’t
(indistinct) sometimes I thought was best to solve myself.Did you think it might get better in time?---(Off microphone.) That’s what I thought.
Tell me at that time back in 2002 or 2003 when this problem started to become bad for you, who was at home at that stage?---(Off microphone.) My son was at home.
That is the son who is now 29?---(Off microphone.) Yes.
Was he working at the stage?---(Off microphone.) Yes.
Were you in a relationship at that stage or just you and your son?
---(Off microphone.) Just me and my son.”
(See T20 L11–23.)
• She continued working with the employer until October 2005. •
Although she is “not so sure”, she believes that she was informed of the factory closing “a couple of days” prior to it closing (see T20 L27–29).
•
She performed the same work on the machine up until the closing of the factory, earning $1300 gross per fortnight.
•
When she was performing the light duties she was working on a machine with no heavy lifting (see T21 L21–30).
•
On the factory closing, she was offered alternative employment performing the same type of work. She did not accept such offer of employment because of “my shoulder and my arm I could not accept it, my injury” (see T22 L6–7).
• She did not tell the employer why she refused such job. • She received a redundancy payment of $70,000 from the employer. •
In June 2006 she commenced working for Thornbear Cleaning at an aged care centre, involving cleaning various offices and other parts of the centre.
•
At Thornbear she did have problems with her shoulder, and in particular was asked:
“Any problems with anything else?---(Off microphone.) My shoulders,
neck, even my back, my right shoulder (indistinct).”
(See T23 L14–15.)
•
She resigned from Thornbear in July 2007 “because I couldn’t take it any more” (see T23 L18–19).
•
She resigned because of the pain, and in particular her left shoulder was “off and on the same, sore” (see T23 L22).
•
She was asked some questions about when she commenced to suffer pain in other parts of the body, and the following evidence was given:
“Did the right shoulder and the neck and the back – sorry – did the right shoulder – when did that start giving you trouble?---(Off microphone.) Right from the start, the same pain, I noticed it.
As the left shoulder?---Yes.
When did the neck start giving you trouble?---It started the same time and the shoulder.
And the back?---And the back as well.
But the left shoulder was the worst pain?---Yes.
MS MALPAS: Did these conditions all come on while you were working for Feltex?---(Off microphone) Yes.
(See T23 L23–T24 L2.)
•
She was referred by her general practitioner to Dr Frank Laska, who gave her four cortisone injections into the left shoulder.
•
She believes that the injections “helped”, but a referral to physiotherapy “made me worse” (see T24 L10–13).
• Dr Laska did discuss with her having an operation on her left shoulder. •
She has treatment from Dr Sheriff in the form of painkillers, and sees him about once a month.
• She takes tablets to make herself sleep and to help with her pain. • She does not think she could do any type of work now. •
She does a bit of walking and reading, and her sister comes in once a week to do the housework.
•
She takes the painkillers for pain in her shoulder and neck and back, and does not take any tablets for her “nerves”. She also takes tablets for blood pressure.
•
She made a claim for compensation in relation to her left shoulder on 27 December 2007 (see p.20 of Exhibit B).
•
She did not seek any legal advice between October 2005 (when ceasing with the employer) and when she started with Thornbear.
•
When asked was there any particular reason that she did not try to get compensation after she ceased work in October 2005, the following evidence was given:
“What is that?---Cause I been working since I was 15 in this country. I never ever been on the WorkCover, I was always healthy and I – I didn’t think anything of – that was serious.
At that time?---At that time, which I was treating myself.
So you thought it would either stay the same or indeed get better or something?---That’s right yes.
Just on that I was going to ask you how old when you came to
Australia?---I was 14.
Did you go to school here?---No, I haven’t.
You started work when you were 15?---Yes.”(See T27 L5–L15.)
• Before working with the first employer, she worked at a factory making Guest biscuits and also in a clothing packaging factory, and earlier still in a cafe making sandwiches and coffees. At all times her work involved the use of both arms. • When asked why she made a claim for compensation in October 2007, the following evidence was given: “How did you come to make that claim form at that time, what happened for you to do that?---I knew I was entitled to it and I knew I got hurt at work in Feltex, but I still try my best to work and I try my best.
That’s at Thornbear?---Yes.
But what did you think after Thornbear?---I went to see my doctor, had an X-ray done. I just couldn’t do any more work.
Because the X-ray and the ultrasound they were taken at that time, weren’t they?---Yes.
Did you have any legal advice at the time you put the claim form in; the October 2007 claim form, had you gone to solicitors at that time? ---Yes, I went to a solicitor - - -
The claim form?---Yes.”
(See T28 L3–17.) (my emphasis)
• When asked why she only claimed in relation to the left shoulder in the claim form dated 29 October 2007, she answered “because the left shoulder was the worse” (see T28 L28–30). • She acknowledges that in that claim form, she records that she reported her left arm injury to Mark Blight and John Chave (or Cave). • Again, when asked the reason that she put in the claim form in October 2007, she answered “Because it was getting worse and worse that I couldn’t work any more” (see T29 L13–14). (my emphasis) 10 Under cross-examination she gave the following pertinent evidence:
•
From about May 2001 she was appointed a leading hand, but still operated a machine.
• Sometimes there would be 50 to 100 spindles an hour. • She is “Four nine, five foot” tall (see T32 L12). •
She denied the proposition that she did not have to perform work above shoulder height.
•
Although different machines make different types of carpet, it was always at that high level.
•
She denied being told that the factory was going to close down a few weeks or a few months prior to it actually occurring.
•
She accepted that she made reports of injury with the employer on 30 October 2001 (when she hit her head), 26 June 2003 (injury to the back of her left hand), and on 4 June 2004 (a cut and bump on the top of her forehead).
•
She accepted that she gave her copies of the three injury reports to her solicitors. She asserted she had a copy of her left-arm report of injury, but gave evidence:
“I had it but I lost – I throw it after.”
(See T39 L2–4.)
•
She disagreed with the suggestion that she only ever performed light duties from 10 August 2004 to 24 August 2004.
•
In respect of the plain medical certificate of Dr Sheriff dated 10 August 2004, at p.195 of Exhibit B, the shoulder pain referred to therein is left shoulder pain.
•
She disputed that after the two weeks of light duties she went back to normal duties, and asserted that every time she asked for light duties she received them from the company.
•
She commenced with Thornbear on 9 June 2006, about seven months after ceasing work with the employer.
•
The work was full-time, and she was employed as a cleaner at an aged care facility.
•
Such cleaning work involved some dusting, mopping and vacuum cleaning.
• She was not required to clean toilets or showers or things like that. • She ceased with which Thornbear on 29 June 2007. (my emphasis) •
Although her duties required her to use her arms, her right arm was used far more than the left, and she performed her duties with painkillers.
•
She does not recall requesting a reference dated 15 August 2005 from Rhonda Murphy, who was employed by the employer.
•
When she submitted the claim for compensation dated 29 October 2007 in relation to her left arm-shoulder, she was getting legal advice at that time.
•
She did take some long service leave from 10 February 2003 to 24 February 2003 because she had moved house and needed a break.
•
Her injuries in relation to the right arm, neck and back were also noticed in about February 2003 (see T56 L29–T57 L1).
•
On it being put to that she attended her general practitioner about fourteen times in 2003 and made no complaint on any of the subject injuries, she stated:
“Because like I said I didn’t actually know what was going on with my arm, I just thought a bit of muscle and I was treating myself with ABC plaster, those hot bandages, hot water bottles.”
(See T59 L1–4.)
•
It was put to her that during 2004 she attended Dr Sheriff on about nine occasions, and on one occasion – 10 August 2004 – she complained about her shoulder, which gave rise to the ordinary medical certificate already referred to.
•
She was referred to an attendance on Dr Sheriff of 16 March 2006 where he has recorded seemingly “hip pain and shoulder pain”, and also on that date “works as a cleaner”.
•
Prior to the work at Thornbear, she did perform some casual cleaning work, she believed for a solicitor, two hours every Friday, for about a month.
• She also worked for two hours a week for about a month at another house. • In about 2001 she had nosebleeds for what she believed to be “stress”. •
She has had no counselling or treatment from a psychologist or psychiatrist.
•
She believes that she has been prescribed some anti-depressants by Dr Sheriff.
•
The worker was shown DVDs filming her in July and August 2009 and again in July 2010, and she accepted that she was the central person shown in the video material.
11 In re-examination, the worker gave the following pertinent evidence:
• She was transferred to the South Road factory in or about 2000, 2001. •
She became a full-time machinist at that time, but continued to be a leading hand.
•
Prior to moving to Park Street she was a leading hand, but not performing machinist’s work all the time, only filling in when required.
The Evidence of Mrs Staka Jeftic
12 Mrs Staka Jeftic gave evidence that she is presently employed as a factory worker, but was employed by the employer as a machine operator. She met the worker in approximately 2002, and both she and the worker did the same job.
13 She was asked to describe the type of activity undertaken by the worker, and she gave the following evidence:
“Can you describe what you and Katica had to do when you were at work?---We were feeding the machines when they needed to be fed, then they were taking off things as well.
What did you feed the machine with?---I’m sorry, I’m not quite clear on the question.
HIS HONOUR: You told the court that part of your duties was to feed removing the empty tubes when they were empty and that’s what we were doing, you know.
the machine?---Yes.
MS MALPAS: How much did the full tubes weigh approximately?---Four to five kilos.
Could you describe the movements you had to use to take the tubes and put them on the machine?---First we were taking the tubes from the stillage and we were loading them onto the machine guard. From stillage, then we had to stick the wool – then they would be rolled, the wool will be rolled on some other tubes and that’s, we had to remove when the rolls were full. When we were feeding the machine we used both arms, hands and when we were removing the tubes we would use the left hand because we had to cut with the right hand.
Can you describe the level in relation to something – anything in the court room, can you describe the level at which the tubes were to be put on the machine and taken off the machine?
HIS HONOUR: Just before you answer that, how tall are you?---177 approximately. Because I’m tall, it would be somewhere my height as I’m demonstrating something like that; you had to bend your back as you were feeling this.
Can you point out anything in the court room which is approximately you think the same level as the machine you had to put the tubes on?---(No audible response.)
HIS HONOUR: You just hold your hand up?---It was a height which would’ve been somewhere – a little bit above my head, something like that where you fed the machine with four tubes, that’s what she’s saying.
(T139 L8–T140 L13.) (my emphasis)
14 When she was working with the worker, she noticed that the worker had pain in the neck and in the shoulder. She also noticed that the worker had plaster on the left shoulder.
15 Under cross-examination, Mrs Jeftic stated that she worked approximately 2-3 days a week as a partner with the worker at the premises of the employer. Furthermore, she did notice that she had problems with her left shoulder and her neck, and that she was “sort of touching it” (see T145 L1).
16 Mrs Jeftic said she was good friends with the worker when working with her at the premises of the employer, but after the premises closed down in October 2005 she has only seen the worker from time to time.
The Evidence of Mr Mark Allan Blight
17 Mr Allan Blight was called on behalf of the employer, and gave the following pertinent evidence:
•
He is presently employed by the Godfrey Hirst Group as the group company manager, and that organisation had bought out the employer.
•
He was employed by the employer as the production manager, then mill manager.
•
He worked with the worker, but there was a chain of command from him to a senior supervisor and then to a supervisor and then to the worker. He believed that the names of the supervisors were John Jan and Joseph Pipsach, both of whom he believed to be retired.
•
The worker originally worked in north Sunshine and was transferred to Braybrook in 2001, and the Braybrook factory closed down in October 2005.
•
When working at the North Sunshine plant, she was employed as a leading hand, twisting operator.
•
When she transferred to Braybrook she was a leading hand, machine operator, but she essentially worked as a finishing operator.
•
In the finishing department there were predominantly four sections within that department, and 90 per cent of each of the operations were the same. “It was just a matter of how – either you fed the machine with material or doffed the machine with material. We had what we call hank-to-cone machines, winding machines, hanking machines and automatic winding machines.” (See T151 L15–18.)
•
He described the various machines and the activities undertaken by the workers, which he emphasised involved the use of four types of machines, and that 90 per cent of the operation involved either feeding a machine or doffing the material from the machine. (See T152 L7–12.)
•
Although there was a requirement to reasonably regularly feed the machine and remove material from the machines, Mr Blight considered that any amount of reaching was “limited”, and also indicated that the loading of the machine could vary from 30 per hour to 50 to 60 per hour. The worker did not complain to him about any “injury”, but Mr Blight noted that the protocol was that she would go to a leading hand about injury, and he would not be involved at that point. However, the supervisors would ultimately have to report to him about any injuries.
•
He cannot recall the worker ever seeking an alteration of her duties, but accepts that on a more casual basis workers would approach supervisors and ask to have something “lighter” because of a particular painful situation.
•
There was a protocol for injury reporting, and it was well documented throughout the factory that any injury had to be reported to a supervisor straight away.
• He could not recall whether the worker sought any alteration in her hours. •
He had made enquiries of various injury reports, and had found those which the worker had already produced. In particular, he could find no injury report in relation to a left arm-shoulder injury (or any other injuries). When a report of injury was made, the employee kept a copy, a copy was given to the human resources office, and a final copy was stored in the human resources office.
•
He remembers that the workers were advised of the termination of the factory on 28 October 2005, approximately one month earlier, as management wanted to get some indication of which employees would transfer to other factories.
•
Of the 180 employees at the Braybrook factory, only 15 transferred to new premises. He was presently the only current existing full-time staff person out of the operation as it was run in Braybrook.
•
The equipment used in the Braybrook factory was either relocated, stored or scrapped.
18 Under cross-examination, Mr Blight gave the following pertinent evidence:
•
If a report of injury had been made by the worker in 2002 or 2003 in respect to her left arm-shoulder, it would not have been lost as the protocol was in effect and the factory continued to be operational until 2005.
•
Although he does not recall giving the worker light duties, he may have referred her to the WorkCover officer or a rehabilitation officer for reassignment, but in any event it would have been necessary to fill out an incident report.
•
He accepted that most of the worker’s work was on the winder machine, which was “repetitive”, and that the tubes to feed that winder machine would vary in weight between approximately 100 grams to five kilos, but most in the vicinity of about three kilos. (See T174 L6–T174 L3.)
•
He believes that a worker (such as the worker) would handle 50 to 60 tubes an hour.
Medical Evidence from the Treaters
19 The worker’s treating general practitioner has been Dr Aejez Sheriff, who has supplied three reports dated 26 January 2008, 28 July 2008 and 15 March 2010 (see respectively pp.30, 34 and 37 of the Plaintiff’s Court Book marked as “Exhibit A”). In his evidence-in-chief, Dr Sheriff adopted such reports and gave further oral evidence.
20 Dr Sheriff through his reports states:
•
The worker has been a patient of his practice since 3 September 2001. When attending the practice, the worker has sometimes consulted with Dr Sheriff’s wife, who also practises as a general practitioner.
• The Clinic’s notes reveal:
ƒ The worker has been complaining of pain “in the shoulders as far back
as August 2004”.ƒ
The worker consulted the Clinic in relation to her “back with radiating left thigh pain as far back as 2003 and documented neck pain since 2007”.
•
The worker consulted Dr Sheriff on 25 June 2007, complaining of pain in her left shoulder and left deltoid and clinical examination revealed restricted movement of the left shoulder. Dr Sheriff arranged for an ultrasound and an x-ray to be undertaken of the left shoulder.
•
On 6 August 2007, because of continuing severe pain, the worker was referred to the rheumatologist, Dr Frank Laska, who prescribed Mobic and the worker was given sick leave for four weeks.
•
Plain x-ray of the left shoulder revealed no recent bony abnormality, but there was mild to moderate degenerative changes at the left ACJ.
•
The ultrasound of the left shoulder revealed some abnormality with the radiologist concluding
“1. No recent bony abnormality nor malalignment of the left
shoulder region is seen.2. Mild to moderate degenerative changes of the left ACJ. 3.
Left biceps tendinosis is noted, with some hyperechoic structure seen within the bicipital groove, ? debris.
4.
Small full thickness tear at the insertion of the left supraspinatus tendon is identified, measuring 5mm maximally. No further rotator cuff tendon abnormality is demonstrated.
5.
Left subacromial bursitis is identified, with associated bursal impingement. Ultrasound guided steroid injection can be performed for further management.”
•
A CT scan of the cervical spine was undertaken on 28 November 2007 with the radiologist concluding:
“1. Moderate posterior C4-5 disc prolapse causing mild canal
stenosis, indenting the spinal cord, similar very small posterior C5-6
disc prolapse.2. Left posterior C6-7 disc bulge narrowing of the lateral recess and intervertebral foramen. Further assessment of these findings with MRI of the spine is recommended to assess any nerve root compression.”
21 In his final report dated 15 March, 2010 (Exhibit A), Dr Sheriff states, in part:
“Progress:
Has been one of pain and weakness in her left arm, left shoulder and neck. Dr F Laska trialled her with cortisone injection and a few weeks later repeated the same. He also expressed a view that if things did not improve she would require hydrodilation of the left shoulder.
Apart from restricted left shoulder movements Mrs Duricic had significant weakness and there was also proximal muscle wasting of the left shoulder ultrasound confirmed a tear of the supraspinatus tendon on the left shoulder. There is also associated with a bicipital tendinosis, subacromial bursitis with impingement and degenerate left AC joint. The CT demonstrates a C6, C7 disc prolapse into the left lateral recess.
An MRI of the cervical spine will delineate the cervical lesion further, she has significant spinal pain radiating to legs.
It appears years of manual type work has been precipitous Mrs Duricic developing the above problems. The findings are that of a person who has worked as a machine operator for several years.
Cortisone injections have failed to resolve her symptoms. Although hydrodilation of the left shoulder is recommended, I do not believe it will give her complete relief until such time the disc lesion in the neck is addressed …. ” (my emphasis)
22 In his evidence-in-chief, Dr Sheriff expanded on the contents of his reports and gave the following pertinent evidence:
•
The examination in 2003 was in relation to pain in her thigh and the examination had been “pretty cursory”, but in hindsight believes such complaint of pain had an “element of radicular symptoms” resulting from “extensive problems both in relationship with the entire spine, both to the neck and to the lower spine”. (see T99 L15–T100 L5)
•
Dr Sheriff considered that such condition was probably a “combination of the nature of the work she has performed and probably the degenerative change that often occurs in people of that age”. (see T100 L6–9)
•
When asked what he considered to be the “cause of the pain in her left shoulder”, Dr Sheriff gave the following evidence:
“I believe this is often seen in people who work labour orientated jobs, particularly as a machinist or people who do a lot of repetitive type of work, people who do a lot of lifting above shoulder work involving lifting, pulling, twisting, pushing, that kind of work. They often develop these kind of problems symptomatically and it would be – it’s most often related to develop shoulder injury that they might get in the way of a supraspinatus tear or a strain. It could relate to some of the shoulder problem that they can get in wear of the capsule of the joint itself in form of an adhesive capsulitis, or it can even go right to the neck itself where they can get radicular symptoms related to any discal lesion that they can develop, so that they can get kind of radicular symptoms in the arms. I believe that in my clinical examination I formed the view that she may have a combination of such lesions in herself, but in the way of some discal compromise in the neck as well as a possibility of – not as a possibility, but clear cut soft tissue strain at the top of the shoulder.”
(see T100 L13, T101 L1)
• On or about 27 November 2009, Dr Sheriff referred her to a clinical psychologist, Ramsay Mohamed, and in reply he received a note from the psychologist which read: “Thanks for referring Mrs Duricic with who has experienced a bout of depression and anxiety. Cognitive behaviour therapy was provided to increase her coping skill. Relaxation skills are employed to ease her sense of tension and promote a positive outlook. She was informed that I would be happy to provide further counselling if required.”
(see T101 L23–28)
•
The treatment of the worker has been limited as analgesic use has caused gastro-oesophageal reflux. She tends to rely on natural therapy and to do exercise programs, but on occasion will come to the doctor to get further medication for pain relief (such as Brufen or Tramadol).
• When asked about her capacity for work, Dr Sheriff stated: “Well, given the circumstance, the situation now, probably very, very minimal to zero really. I mean considering her educational background and considering her physical state of chronic pain, and the way she has given the history, and how the activities of daily living being affected, I think the prospects of employment are virtually minimal, I think, or zero.”
(see T103 L16–21)
23 Under cross-examination, Dr Sheriff gave the following pertinent evidence. In relation to the consultation on 10 August 2004, the worker was seen by his wife and it was recorded:
“Complaining of both shoulders pain. Related to work, being a machine operator, working with machine. Unable to abduct. 10/8 to 24/8. ...
The worker was also prescribed at that Vioxx.”
• Dr Sheriff also referred to a clinical note he made on 18 May 2006, which states: “Left shoulder pain with numbness in – on the left side with painful joints. Worked as a cleaner, part time and was prescribed Celebrex at the time.”
• Leaving aside the August 2004 complaint of shoulder pain, the next complaint of pain in her right shoulder was in November 2007, with the note being: “The right wrist is swollen, quite – quite swollen in fact and painful. Dorsiflexion of the right wrist is restricted and painful. Painful neck. Radiating left shoulder, left arm pain and now into the right shoulder as well.”
(see T113 L8–12)
• When asked about her first complaint in relation to her neck, Dr Sheriff’s notes indicate that was in December 2007 where it is stated: “Neck symptoms and arm symptoms was explained by the CT findings with insomnia. Analgesics were producing gastritis, and Miralax 30 milligram, half at night. No ethanol use.”
•
When asked about her first complaint in relation to her back, the following evidence was given:
“In relation to the back, when was the first complaint?---I think the
initial complaint goes back to 2003 I believe.
Yes?---Relating – and 1st of the 3rd when she developed left thigh pain with tenderness in – in the left thigh, and pulse were checked at that time as well. There was a history of smoking.
What was that date, Doctor?---1/7/2003.
…
Dr Sheriff, where in your notes do you mention “back”?---No, it’s not mentioned, in fact they’re not my notes at all. They’re my wife’s notes.
Can you read out what it says for us?---‘Chest clear, left thigh pain, pulses okay. Tenderness left thigh. SLR, straight leg raising test normal. Celebrex 200 milligrams, 1 b.d. aspiring and Methyl Salicylate cream.’
…
So on 1 July 2003 there’s no notation made about the back, and you’re suggesting to His Honour that that relates to the back problem?---A: It appears – given the – it appears, given the history, it is possible it might be related to that in hindsight, yes.”
(see T113 L19–T114 L14) (my emphasis)
• In relation to the reference on 18 May 2006, that she was working as a “cleaner”, the doctor did not know where she was working at that stage. • When questioned about any psychiatric problem, the following evidence was given: “When was the first time complained about any psychiatric problem?--- There was no psychiatric problem per se. I think it was like a general deterioration of the functional state of someone who lives in chronic severe pain for a long period of time and you find that their functional state generally deteriorates both in function of their upper limbs and their lower limbs and then their domestic problems set in because they are not able to do their domestic work.
…
In relation to any psychiatric problems or complaints?---There is no psychiatric complaint in form or any major psychiatric illness. All that I was trying to make was that this lady shows mild evidence of depression which was more secondary to pain and that is what I was trying to emphasise, that she needed chronic pain management.
When was that?---I think that had been coming on for a period of time yes.”
and that is when I made that referral to see a psychologist for her.
(see T117 L14–T118 L4) (my emphasis)
• Dr Sheriff continues to see the worker on a regular basis, depending on whether she requires help and the extent of her symptoms. 24 I refer to the reports of Dr Laska dated 11 September 2007 (at page 41 of “Exhibit B”) and a further report dated 29 March 2009 (forming part of “Exhibit 6”). Dr Laska initially examined the worker on referral from Dr Sheriff on 11 September 2007 and thereafter on 22 December 2007, 1 April 2008, and 29 July 2008.
25 At his first examination, Dr Laska records the following history:
“There has been onset of painful restriction of left arm at shoulder level. Apparently there has been four-year history of episodic left upper limb discomfort. Three months back, there was flareup without obvious trigger apparently and since then, there has been progressive problem of restriction of movement. Sleep is disturbed and capacity to cope with general activities of daily living reduced. There are no systemic features.
(my emphasis)
26 Examination at that time revealed normal right shoulder movement, but on the left there was marked restriction of movement in each plane and Dr Laska noted that ultrasonagraphic assessment from a couple of months back revealed degenerative changes of supraspinatus tendon and in association, bursal thickening and impingement.
27 In his report dated 11 September 2007, Dr Laska states, in part:
“The clinical features at present are those of significant adhesive capsulitis, probably the consequence of reduced usage and movement of shoulder in setting of degenerative changes of supraspinatus tendon with impingement. Clearly, there was no point in trying to assess strength since movement wasn’t present.
...
I have explained to Mrs Duricic, findings. We have discussed treatment options and after consideration, Mrs Duricic was happy to proceed with injection of steroid to shoulder joint and capsule. I have used Depo- Medrol and local anaesthetic.” (my emphasis)
28 In his later report dated 29 March 2009 (“Exhibit 6”), Dr Laska records that at review on 22 December 2007 the worker continued to have painful restriction of shoulder movement and was reinjected with corticosteroid and local anaesthetic. On review on 1 April 2008 the pain was less but the restriction continued, and she also had some right shoulder discomfort. On his final review on 29 July 2008, Dr Laska records that there had been little improvement, and the worker was using analgesics to assist with the control of her discomfort. Examination at that time revealed that there had been no improvement in the range of movement in the left shoulder, and consideration was given to upgrading treatment to hydrodilation.
29 In responding to a series of questions posed by the solicitors acting on behalf of the worker, Dr Laska states, in part:
“Mrs Duricic presented with the clinical features of adhesive capsulitis of left shoulder, with it having been established that she had degenerative changes of the supraspinatus tendon together with thickening of the subacromial bursa and impingement having been noted during movement.
I was given no history of specific direct injury to shoulder only a suggestion that there had been episodes of possible muscular strains over a preceding four-year time period but with significant exacerbation three months prior to presentation without a specific trigger factor being reported. It had been established by ultrasonographic assessment that there were degenerative changes of supraspinatus tendon and associated thickening of subacromial bursa with impingement. In part these are constitutional features associated with ageing but could equally have been created by significant trauma. In many instances, adhesive capsulitis is idiopathic in nature but can be generated by arthritic processes, diabetes, and immobilisation due to various initiating factors, of the shoulder.
As at the time I last saw Mrs Duricic, she did not have capacity for unrestricted manual or preinjury duties of employment.
I can only comment in respect to left shoulder since I have found no specific problems in relationship to anatomy and potential function capacity of right shoulder or neck. In respect to left shoulder restrictions, one would require duties of employment to be modified in order to assist Mrs Duricic to remain in employment given that her skills primarily enable Mrs Duricic to undertake manual tasks.
...
... I can make no comment as to whether duties of employment undertaken during the time period you indicate had any role in the current circumstance. Further you will note that there is a two-year gap as a minimum from the end of time period you indicate to the time of presentation.” (my emphasis)
30 I also refer to the report of the general surgeon Mr Peter Mangos dated 30 November 2009 (see p.43 of Exhibit B).
31 This report is curious, as it commences by saying that the worker was examined by Mr Peter Mangos at the request of the local general practitioner on 30 November 2009, but the report of the same date is addressed to the solicitors acting on behalf of the worker. Furthermore, the report reads far more like a medico-legal report than a treating specialist’s report.
32 In any event, Mr Mangos is of the opinion that the employment of the worker by the employer has either caused or significantly aggravated cervical spondylosis, bilateral shoulder tendonitis (left worse than right), and anxiety with stress and depression. Furthermore, Mr Mangos is of the opinion that, when examined by him, the worker was “totally and permanently incapacitated for work”.
33 The employer relies on the following medico-legal reports:
(a) Report of the psychiatrist Dr Timothy Entwisle, who examined the worker on 19 October 2009 (see report dated 26 October 2009 at p.46 of Exhibit 2); (b) Report from the occupational physician Dr Mary Wyatt who examined the worker on 17 October 2008 (see report dated 18 October 2008 at p.57 of Exhibit 2); (c) Report of the orthopaedic surgeon Mr Rodney J. Simm who examined the worker on 26 October 2009 (see report dated 27 October 2009 at p.50 of Exhibit 2). 34 Dr Entwisle obtained a history that the worker had “injured her shoulder in February 2003 when working with the employer”. Dr Entwisle was of the opinion that the worker did not describe any psychiatric symptoms and gave no history of receiving any treatment in that respect. He is of the opinion that the worker has no psychiatric injury.
35 Dr Wyatt obtained a history of the worker performing repetitive work with the employer involving placing large bobbins which weighed about 4 kilograms onto a machine at shoulder height. She further obtained a history that the worker suffered “soreness in her shoulder” and reported the problem at work. Dr Wyatt notes that examination findings were fundamentally non-physical, and such non-physical findings made any meaningful assessment of her clinical situation impossible. In those limited circumstances, Dr Wyatt considered that it was probably unlikely that the employment at Feltex was a contributing factor to any of the complaints made by the worker.
36 After obtaining a full history, Mr Simm stated in part:
“Left shoulder:
She presented virtually no movement of the left shoulder and resisted gentle attempts at movement. It was not possible to determine if there were rotator cuff signs. There are some minor changes on x-rays and ultrasound of the left shoulder. The changes reported are extremely common and probably present in over half the population of her age. Therefore, very little can be made of the fact these abnormalities were found. Nevertheless, the combination of her left shoulder pain and these changes raises the possibility that she has symptomatic age related rotator cuff tendonitis of the left shoulder with a small rotator cuff tear and some secondary reactive subdeltoid bursitis. I could not relate this condition in any way to employment with Feltex Australia. Although she did repeated lifting with her left arm, there were no particularly strenuous reaching or overhead activities required. The symptoms in the left shoulder were reported in 2004 but were transient and were treated with light duties. She was able to resume her normal duties with no further complaint recorded. ...
The marked restriction of movement which was inconsistent was not typical of a physical condition of the cervical spine. She does have multilevel degenerative changes on investigations of the cervical spine and she may have some pain and restricted movement as a result of these changes. It is also possible these degenerative changes are now responsible for referred pain to the shoulder girdles which could explain her rather non-specific bilateral shoulder pain. The pathology in the cervical spine is age related and there was nothing in the history provided to suggest that this age related change has been influenced by factors arising out of employment.
I was unable to establish a diagnosis for her right shoulder pain other than the possibility it was referred pain from degenerative cervical pathology. Physical examination as with the other areas was largely unhelpful with marked restriction of movement. The pain response precluded meaningful evaluation of rotator cuff signs. The investigation shows some minor changes which are extremely common in people of her age and not necessarily of any clinical relevance. She does not have obvious rotator cuff pathology on investigations but rather changes which are interpreted as mildly active bursitis.” (my emphasis)
37 Mr Simm also considered that there was no evidence to suggest that factors arising out of her employment with the employer are responsible for any incapacity for work. Although her presentation would suggest she was unfit for work, the various investigation findings and the anticipated clinical cause for such underlying conditions would lead to the view that she is probably fit to return to some suitable employment, being confined to light work using her arms close to her body and below shoulder height.
Issues 38
The first issue is what injury or injuries did the worker suffer arising out of or in the course of her employment with the employer.
39 Section 5(1) of the Act defines “injury” to mean: “any physical or mental injury and, without limiting the generality of that
definition, includes—
(a) industrial deafness; (b) a disease contracted by a worker in the course of the worker’s employment (whether at, or away from, the place of employment); (c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease.”
Section 259 of the Act provides that this definition of “injury” only applies to injuries that occur on or after the date of commencement of s.3 of the Accident Compensation and Transport Accident Acts (Amendment) Act 2003 – to wit, on 3 December 2003.
40 The definition of “injury” applicable prior to 3 December 2003 was in a similar form, save that paragraph (b) of the definition had the added words “and to which the employment was a significant contributing factor”, and paragraph (c) of the definition had the added words “where the worker’s employment was a significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration”.
41 Section 5(1B) of the Act also states the following:
“In determining for the purposes of this Act whether a worker’s
employment was a significant contributing factor to an injury—
(a) the duration of the worker’s current employment; and (b) the nature of the work performed; and (c) the particular tasks of the employment; and (d)
the probable development of the injury occurring if that employment had not taken place; and
(e) the existence of any hereditary risks; and (f) the life-style of the worker; and (g) the activities of the worker outside the workplace— must be taken into account.”
42 After a consideration of all the evidence, I am satisfied as a matter of probability that the worker did suffer a left-shoulder injury arising out of or in the course of her employment with the employer, and to the extent that it occurred prior to 3 December 2003 I am satisfied that the employment was a significant contributing factor.
43 The injury to the left shoulder is a rotator cuff tendonitis with a small rotator cuff tear complicated by adhesive capsulitis and aggravation of degenerative changes in the left shoulder.
44 After consideration of all the evidence, I am not satisfied that the worker suffered any injury to her neck, right shoulder or psychiatric injury arising out of or in the course of her employment with the employer.
45 Before setting out my reasons for making such findings, it is perhaps appropriate to comment on some of the evidence given in the hearing.
46 I did not find the worker to be a particularly satisfactory witness, as on occasion I doubted the veracity of her evidence and her reliability as a witness. For example:
(a)
The worker believes that she was only informed of the factory closing on 28 August 2005 “a couple of days” prior to that date. Such an assertion seems inherently unlikely; more so when one considers the evidence of Mr Blight, who considered that workers were given about one month’s notice, and the reference dated 15 August 2005 obtained by the worker from Feltex (see Exhibit 4);
(b)
Although the worker accepted that she made reports of injury for relatively minor events on 30 October 2001, 26 June 2003, and 4 June 2004, she never made a claim for any pain in her low back, neck and right shoulder at least, although she maintained that such symptoms had been ongoing from about the time that she suffered her left shoulder injury. I will return later in these reasons for decision to the issue of whether the worker made an injury report in relation to her left arm injury;
(c)
The first claim was submitted on 29 October 2007, at a time when, according to the worker, she had legal advice. Such claim only made reference to the left arm and shoulder injury, and it was only in the later claims that reference was made to the other alleged injuries;
(d)
At p.201 of Exhibit B is a letter from Thornbear confirming that the worker was employed on a full-time basis from 9 June 2006 to 29 June 2007 as a cleaner working in an aged-care facility. According to the records of Dr Sheriff, the worker was working as a part-time cleaner as at 18 May 2006. Under cross-examination, the worker, when confronted with such history, gave evidence that she had done some work as a cleaner on a domestic basis for an uncertain period of time;
(e)
Video material taken on 18 August 2009, 25 August 2009, and 5 July 2010 was shown to the worker. Such material revealed the worker driving her vehicle, shopping, carrying bags in her right hand, using her right hand to open the car door, and taking clothing off hangers in shops. I consider the video to show reasonably good use of the right arm (albeit not above shoulder height), good mobility of the neck, and indeed, on one occasion, the worker leant into the rear of her vehicle and held such bend while placing material in the back seat. When driving the vehicle, both hands were on the steering wheel. Although there was some use of the left arm, such use was far less frequent than the right arm, and certainly there were no activities above shoulder height with the left arm. I gained the impression, at least, that such videos revealed that she had reasonably good use of her neck, low back and right arm, and could not really draw any conclusions in relation to the left arm;
(f)
I was also concerned that the worker attended Dr Sheriff on apparently fourteen occasions in 2003, and at no time did she make reference to any problems in her shoulders, neck and/or back. In a similar way, she attended Dr Sheriff on nine occasions during 2004, and other than the reference to shoulder pain on 11 August 2004 there was no other reference to any of the other “painful areas”.
47 In circumstances where the court has concerns as to the credibility of a plaintiff, it is incumbent on the court to assess any independent or objective evidence said to support the case of a plaintiff (see Forder v Hutchinson [2005] VSCA 281, and in particular at paragraph [42] per Nettle JA; see also Barneveld v Hume City Council [2004] VSC 350, wherein at paragraph [24] Redlich J discussed the evaluation of other evidence in coming to a determination of a factual matter where the credibility of a plaintiff is in issue).
48 I turn to the evidence of the general practitioner Dr Sheriff. I have come to the view that I must treat his evidence with a degree of caution, as I consider that he bordered on being an advocate for the worker in establishing that her “injuries” were work-related. In particular, I refer to his evidence set out in his reports that the worker had been suffering a back injury with radiating left thigh pain as far back as 2003. When cross-examined, the date of consultation was 1 July 2003, and rather than the consultation being undertaken by Dr Sheriff it was undertaken by his wife, and the notes read:
“Chest clear, left thigh pain, pulses okay. Tenderness left thigh. SLR, straight leg raising test normal. Celebrex 200 milligrams, 1 b.d. aspiring and Methyl Salicylate cream.”
Ultimately Dr Sheriff gave evidence that it was “possible” that such complaints were related to her low-back injury.
49 Leaving aside that consultation (with his wife), the worker consulted Dr Sheriff in relation to the subject injuries as follows:
(a) On 10 August 2004, when it was noted: “Complaining of both shoulders pain, related to work, being a machine
operator, working with machine. ...”
(b) 18 May 2006: “Left shoulder pain with numbness in – on the left side with painful joints.
...”50 Significant treatment in relation to her left shoulder commenced after the worker consulted Dr Sheriff on 25 June 2007 (after ceasing working with Thornbear). Her first complaint of pain in the right shoulder was in November 2007. Her first complaint in relation to her neck was in December 2007. Her first complaint in relation to her back (leaving aside the consultation on 1 July 2003) was after ceasing work with Thornbear.
51 I also make reference to the report from Mr Mangos which I consider to be essentially a medico-legal report based on the history given to him, with little analysis as to the real causation of her problems.
52 However, in considering all the evidence, I have formed the view that it is probable that the worker suffered a left-shoulder injury arising out of or in the course of her employment with the employer, for the following reasons:
(a)
Although the evidence of the worker, Mrs Jeftic and Mr Blight was not totally consistent as to weights and frequency of activity, I formed the view that the type of work that the worker was required to perform involved reasonably constant use of her left arm, lifting tubes on and off machines. Such tubes were of varying weights, and the work was repetitive.
(b)
Mrs Jeftic gave direct evidence that she recalls the plaintiff had problems with her left shoulder and neck, and she was “sort of touching it” (the left shoulder). Furthermore, she recalled the worker having plaster on the left shoulder. I found Mrs Jeftic to be a frank witness, and, although she was friends with the worker at the factory, I see no reason to reject such evidence.
(c)
Importantly, when the worker initially consulted Dr Laska on 11 September 2007 he obtained a history of painful restrictions of the left arm and shoulder level over the last four years, which of course would extend back to 2003. However, it is to be noted that there were no complaints of any other problems in her body, and indeed in his report dated 29 March 2009 Dr Laska notes that he found “no specific problems in relationship to anatomy and potential function capacity of right shoulder or neck”.
(d)
Dr Laska makes “no comment” as to any work relationship between the left shoulder and her employment with the employer. However, he does note that her left shoulder condition, although consistent with constitutional features associated with ageing, “could equally have been created by significant trauma”. In a similar way, although Mr Simm considered that there was no relationship between her left shoulder condition and her work with the employer, he did state:
“Although she did repeated lifting with her left arm, there were no
particularly strenuous reaching or overhead activities required.”I consider that the type of work which the worker performed, involving reaching up with her left arm on a regular basis with various weights, probably falls into the category of “strenuous reaching or overhead activities” or indeed amounts to “significant trauma” being the constant use of the left arm above head height. It is also to be noted that the plaintiff is small in stature, and any reaching or extending of the left arm would be exacerbated by her short height.
53 Accordingly, based on the general proposition that work activities can exacerbate such a condition as suffered by the worker in her left shoulder, I find as a matter of probably that the left shoulder injury arose out of the course of her employment with the employer, and that the employment was a significant contributing factor.
54 However, the complaints in relation to her back, neck and right shoulder seem to have come on well after her cessation of employment with the employer, and I find that the worker fails in discharging her onus in establishing that such injuries arose out of or in the course of her employment with the employer. I do not accept the evidence of the worker that the pains in these areas of her body commenced at the same time as her left arm-shoulder complaints. In this respect, I stress that I am also not satisfied that any psychiatric injury has arisen out of or in the course of her employment with the employer, notwithstanding the reference by the general practitioner to a psychologist and his prescription of some anti-depressant medication late last year.
55 The next issue is the extent and duration of any incapacity resulting from or materially contributed to by the left shoulder injury.
56 Section 93 of the Act provides that:
“If a worker’s incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation, the compensation shall be in the form of weekly payments subject to and in accordance with this Part.”
57 Section 31 of the Accident Compensation Amendment Act 2010 (Act No 9 of 2010) substituted new sections from s.93A to 93CA of the Act, and came into operation on 5 April 2010. Given the operation of s.4A of the Act, s.93A(2) of the Act entitles the worker to weekly payments of compensation during the so- called “first entitlement period” at a certain rate if she has “no current work capacity”, or, if she does have a current work capacity, a rate calculated in part on her “current weekly earnings”.
58 Section 93B of the Act provides that the worker is entitled to weekly payments during the so-called “second entitlement period”.
59 Section 93B(2) of the Act provides for the payment of weekly payments during the so-called “second entitlement period” again based on whether or not the worker has “no current work capacity” or has a current work capacity.
60 Section 93C(1)(a) states:
“Subject to section 93CD, a worker’s entitlement to compensation in the form of weekly payments under this Part ceases upon the expiry of the second entitlement period unless the worker—
(a) is assessed by the Authority or self-insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity ...”
61 Section 91E of the Act defines “first entitlement period” to be an aggregate period not exceeding 13 weeks (whether or not consecutive) and also defines “second entitlement period” to be an aggregate period of 117 weeks (whether or not consecutive) after the expiry of the first entitlement period.
62 Section 5(1) of the Act defines “current work capacity” to mean:
“[I]n relation to a worker, a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.”
Section 5(1) defines “no current work capacity” to mean:
“... a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.”
Section 5(1) also defines “suitable employment”. Such definition was amended by s.74(3) and (4) of Act No 9 of 2010, and such amendments came into operation as from 1 July 2010 (see s.2(8) of Act No 9 of 2010). The definition reads relevantly:
“[I]n relation to a worker, means employment in work for which the worker
is currently suited—”
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and (ii) the nature of the worker’s pre-injury employment; and (iii) the worker’s age, education, skills and work experience; and (iv) the worker’s place of residence; and
(v) any plan or document prepared as part of the return to work planning process; and (vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and (b) regardless of whether—
(i) the work or the employment is available; and (ii) the work or the employment is of a type or nature that is generally available in the employment market.”
63 After a consideration of all the evidence, I find that at all material times since 29 June 2007 (the date from which the incapacity is claimed) the worker has had “no current work capacity” in that she has been unable to return to work in her pre-injury employment with the employer or indeed in suitable employment. Given her age, her industrial background which involves manual work, and the extent of her injury in her left shoulder, with the consequential pain and restriction of movement, I have formed the view that she is not suited for any employment. In forming such a view, I have taken account of my concerns as to the veracity and reliability of the worker.
64 I also note the power given to the court pursuant to s.39(1AA) of the Act. That sub-section states:
“If the County Court is exercising the jurisdiction conferred by subsection (1) in a proceeding relating to the entitlement of a worker to weekly payments, the County Court has the jurisdiction in the proceeding to inquire into, hear and determine any question or matter under this Act relating to any termination or alteration of any entitlement to weekly payments by virtue of this Act.”
65 Pursuant to that power, and consistent with my earlier finding in relation to capacity, I further find at the end of the second entitlement period (that is, at the expiration of 130 weeks after 29 June 2007) the worker had no current work capacity and was likely to continue indefinitely to have no current work capacity.
66 Evidence was given by the plaintiff that she received a pay “redundancy” payment of $70,000 from the employer. The court has no further evidence in relation to this sum paid to the worker by the employer, but notes, any weekly payments of compensation for incapacity are subject, of course, to the operation of s.96 ff. of the Act.
67 The next issue is whether the operation of s.102 and/or s.103 of the Act provide any defences to the employer.
68 The employer relies on s.102 which states relevantly:
“(1) Notice of an injury that may entitle a person to compensation under this Act must be given by the person to the employer within 30 days after the person becomes aware of the injury. (2) Notice of an injury must—
(a) be given in a manner and form approved by the Authority; and (b) include such particulars as are required by the Authority. (3) Notice of an injury is deemed to have been given to an employer if the particulars of the injury as required under section 101(3) are entered in the register of injuries. (4) The employer must acknowledge in writing the giving of notice of
an injury.(5) Subject to subsection (6), a person is not entitled to recover compensation under this Act unless notice of the injury has been given to the employer within the time specified in subsection (1).
(6)
The Authority or self-insurer may waive or extend the time limit specified in subsection (1), if the Authority or self-insurer is satisfied that–
(a)
it was not reasonably practicable for the person, or another person on his or her behalf, to have given notice in accordance with subsection (1); or
(b)
the failure to give notice of the injury in accordance with the time limit specified in subsection (1) did not unfairly prejudice the employer; or
(c)
to rely on subsection (5) would result in a serious injustice to the person.
(7)
Without limiting the generality of subsection (6)(a), it is to be taken not to have been reasonably practicable to give notice of the injury in accordance with the time limit specified in subsection (1) if the failure to give notice was due to—
(i) ignorance or a mistake; or (ii) undue influence or duress; or (iii) being absent from Victoria.” (my emphasis)
69 Accordingly, s.102 of the Act provides a complete defence in that a person is “not entitled to recover compensation under this Act” unless notice of injury was given within 30 days after the person becoming aware of the injury.
70 A factual issue arose as to whether or not the worker did give notice of injury by entering it into the register of injuries as she alleges, or indeed, consistent with the evidence of Mr Blight, no such report of any injury can be located. Such a factual issue is difficult to resolve. On the one hand, the worker was quite adamant in her evidence about entering her left-shoulder injury (although not any other of the alleged injuries) in an injury book, and asserted that the copy of the injury book given to her in relation to that injury had been lost over a period of time. In this context, the worker was able to produce three extracts for other unrelated injuries, and Mr Blight was adamant that if a report of injury had been made, it would have been documented and capable of production before the court.
71 Although the worker most probably carries the onus of establishing this fact, I tend to the view that the worker did report the left-arm injury, notwithstanding my reservations about her reliability as a witness. In support of such view, I refer to the first claim dated 29 October 2007 where she nominates Mr Blight and another supervisor as persons to whom she reported the injury. Furthermore, although she maintains that she suffered injuries to other parts of her body, she has not asserted that she gave notice of those injuries. I should add that in no way do I doubt the credibility of Mr Blight, but do note that the factory has been closed for some period of time, and can only speculate that such document has been misplaced, although I do consider it curious that both the employer and the worker are unable to produce copies of the document.
72 In any event, the saving provisions of s.102(6)(b) and (c) are probably apposite. In particular, I am of the view that in the event that no notice was given of injury, such requirement should be waived as otherwise a “serious injustice” would occur to the worker. The serious injustice is that she has a claim to weekly payments and associated benefits extending back to 29 June 2007 and into the future. Such claim is of some significance, and in my view the worker would suffer serious injustice if she were prevented from exercising that right.
73 Furthermore, it may well also be that the employer is not unfairly prejudiced by the failure of the worker to report the injury (if that be the case). However, the evidence in relation to this aspect may well be equivocal, as the evidence did establish that the factory where the worker was working has closed down, many workers did not transfer to alternate employment, supervisors other than Mr Blight have retired, and the machines in question have been sold or broken down. However, against this, Mr Blight was available and clearly was very knowledgeable about the duties of the worker and the operation of the employer. No evidence was led by the employer as to the failure to locate appropriate witnesses or the difficulties brought about by the late notice of the claim.
74 In any event, I am of the opinion that at the very least, the saving provision set out in s.102(6)(c) saves the worker from the defence relied on by the employer.
75 Section 103 of the Act was substantially amended by Act No 9 of 2010, but such amending provisions only apply in respect to the claim first given after the commencement date, and have no operation to the present proceeding. Section 103, as set out in Reprint No 15, states relevantly:
“(1) ... (2) ... (3) ... (4) ... (5) If—
(a) a claim for compensation is made in respect of an injury to a worker arising out of or in the course of, or due to the nature of, employment with a particular employer; and (b) the claim is made after the worker ceases to be employed by that employer— the claim is deemed not to have been made unless the claimant satisfies the Authority or self-insurer that he or she could not reasonably have made the claim while employed by that employer.
(6) ...
(7) Subject to subsection (8), a claim for compensation must be given, served or lodged under this section or section 106 or Part 5 of the Accident Compensation (WorkCover Insurance) Act 1993—
(a) in the case of a claim for compensation in the form of weekly payments, as soon as practicable after the incapacity arising from the injury becomes known; (b) ... (c) ... (d) ... (8) If the Authority or self-insurer is satisfied that a person making a claim for compensation had a special excuse for not making the claim within the relevant applicable time limit, the Authority or self- insurer may waive or extend the time limit to enable the claim for compensation to be made. (9) ... (10) ...
(11) ... ” (my emphasis)
76 There is no issue that the claim form relied on by the worker in relation to her left-shoulder injury was lodged at or about 29 October 2007. Again, there is no issue that she ceased employment with the employer on 28 August 2005. Seemingly, s.103 would only have relevance to a claim for weekly payments, as the ambit of s.103 does not extend to claims under s.98C of the Act. Furthermore, the third claim lodged on or about 4 September 2009 no longer becomes relevant given my findings that any compensable injury is confined to the left shoulder.
77 Whereas s.103(5) of the Act has to be read in conjunction with s.103(7) of the Act, in this sense the words “could not reasonably have made” contained in sub-s.(5) would not, in my view, be limited to reasons such as someone being in a coma or the like. If incapacity from an injury only becomes known at some time after the cessation of employment, I consider that it would be “reasonable” that a claim be lodged when such incapacity be known, as long as it was lodged “as soon as practicable” after the incapacity becomes known. Furthermore, overarching these provisions is that if a worker has a “special excuse” for not making the claim within the relevant applicable time, the authority (and thus the court) may waive or extend the time to enable the claim for compensation to be made.
78 The evidence of the worker as to why she did not make a compensation claim was essentially that she considered that her injury might get better over time. She had to support herself, her son being the only one at home with her, and she had never been on WorkCover since being in Australia. It was only when she ceased work with Thornbear that she appreciated the incapacitating effects of her left-shoulder injury, causing her to seek legal advice and submit the claim for compensation. It is, of course, to be noted that it was in 2007 after ceasing with Thornbear that the plaintiff underwent investigations with her general practitioner to ascertain the extent and cause of the pain in her left shoulder.
79 I tend to the view that the plaintiff satisfies s.103(7)(a), in that she lodged her claim as soon as practicable after “the incapacity arising from the injury becomes known”. Up to that time, she considered the pain would improve and she would recover, and that she was able to do some work. It was only from her cessation of work with Thornbear that she accepted that she was incapacitated as a result of her left-shoulder injury. In this sense, I am of the opinion the worker acted in a “reasonable” way.
80 Furthermore, if I am wrong in my interpretation of s.103(5) and (7), I am of the view that s.103(8) is made out, in that the worker did have a “special excuse” in not making a claim when employed with the employer, given that she had no legal advice, had never made a compensation claim before, considered that the injury was transitory, and had the need to work because of her single status. In such circumstances, I consider it appropriate that the time limit to lodge a claim for compensation be waived.
81 Accordingly, I find that on a consideration of all the evidence the operation of s.102 and/or s.103 of the Act avails the employer of no defence to the claim for weekly payments in this matter.
Conclusion
82 Accordingly, I find that the plaintiff suffered a left-shoulder injury arising out of or in the course of her employment with the employer, and that such injury has resulted or materially contributed to incapacity for both pre-injury employment and suitable employment from 29 June 2007 to date and continuing.
83 I will hear the parties on the form of the order sought (bearing in mind the potential operation of s.96) and the question of costs.
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