Durston v Bendigo Health Care Group
[2012] VCC 1475
•5 October 2012
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-00302
| DEBRA LEE DURSTON | Plaintiff |
| v | |
| BENDIGO HEALTH CARE GROUP | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 1 and 2 October 2012 | |
DATE OF JUDGMENT: | 5 October 2012 | |
CASE MAY BE CITED AS: | Durston v Bendigo Health Care Group | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1475 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: injury to the right shoulder – whether the pain and suffering consequences are serious – whether the loss of earning capacity consequences are serious – whether the plaintiff is fit for suitable employment
LEGISLATION: Accident Compensation Act 1985, s5(1) and s134AB(38)(c)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121
JUDG\MENT: the plaintiff have leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for pain and suffering and loss of earning capacity arising out of her employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Arnold Dallas & McPherson |
| For the Defendant | Mr A Moulds SC with Ms S Manova | Hall & Wilcox |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 16 January 2012 by which the plaintiff applies for leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by her arising out of or in the course of her employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr J Mighell SC appeared with Mr D Purcell of counsel for the plaintiff, and Mr A Moulds SC appeared with Ms S Manova for the defendant.
4 The plaintiff submitted that she suffered a serious permanent impairment or loss of the function of her right shoulder.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered her Court Book (“PCB”), pages 16 - 60: Exhibit A;
· The defendant tendered its Court Book (“DCB”), pages 5 - 28: Exhibit 1.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(c) of the Act which requires the plaintiff to prove that she has suffered a “serious permanent impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999;[1]
[1]Section 134AB(1); Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity;
(d) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently;
(f) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined;
(g) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application;
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case;
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
(i) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application;
(j) I am required by s134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background and the Injury
8 The plaintiff was born in 1957. She is a matter of days short of her fifty-fourth year. She is married. Her husband is not working due to a major lower back injury. Her children are all adults and are independent.
9 The plaintiff completed Year 9. She left school when she was sixteen years of age. She subsequently worked in unskilled employment. She worked in a supermarket; a fruit shop; at the Glen Eagles Nursing Home for nine years in the kitchen; and then commenced employment with the defendant on 16 October 1999 at the Golden Oaks Nursing Home as a personal services assistant.
The Plaintiff’s Injury
10 In September 2008, the plaintiff worked five days per week. Each shift was of six hours duration. The plaintiff worked 30 hours per week. On some occasions, and about once a month, she worked an extra shift of six hours bringing her total hours in such a week to 36 hours.
11 In her affidavit sworn 15 September 2011, the plaintiff described the manual work she was required to undertake which she said was the cause of pain which developed in her right shoulder in about September 2008.[4]
[4]PCB 18
12 The defendant admitted that the plaintiff suffered a compensable injury to her right shoulder.
The Plaintiff's Medical Treatment
13 The plaintiff saw Dr King, general practitioner, on 9 October 2008. The plaintiff told Dr King that she had suffered pain in her right shoulder over the preceding four weeks. Dr King referred the plaintiff to have an x-ray of her right shoulder, which was taken on 10 October 2008,[5] and an ultrasound of her right shoulder, which was taken on 20 October 2008.[6] Dr King agreed with the opinion of the radiologist who took the ultrasound that it demonstrated some deltoid bursitis with impingement.
[5]PCB 43
[6]PCB 44
14 Dr King referred the plaintiff to have her subacromial bursa injected with Depo-Medrol and Marcaine on 29 October 2008 under ultrasound control.[7] It did not resolve the plaintiff’s pain. Dr King referred the plaintiff to have physiotherapy. It, likewise, did not resolve the plaintiff's pain, nor did it improve her condition very much.[8]
[7]PCB 45
[8]PCB 28-29
15 Dr King referred the plaintiff to Mr Williams, orthopaedic surgeon. The plaintiff first saw him on 27 February 2009. Mr Williams formed the opinion that the plaintiff was suffering from an impingement syndrome. He agreed with the radiologist who took the ultrasound. He was of the opinion that because conservative treatment had failed to resolve the plaintiff's pain, that she should have surgery.
16 Mr Williams performed surgery on the plaintiff's right shoulder on 12 May 2009. He performed a subacromial decompression and excision of the lateral end of the clavicle. It is clear from Mr Williams’ reports dated 31 March 2011[9] and 10 July 2012[10] that the surgery did not succeed in returning the plaintiff's right shoulder to any degree of reasonable function. Indeed, in July 2012, Mr Williams considered that the plaintiff’s prognosis was poor and that her employment prospects were limited to employment in which she could avoid repetitive lifting and use of her right arm, particularly performing tasks above shoulder level.
[9]PCB 35-36
[10]PCB 37
17 Mr Williams has seen the plaintiff approximately monthly. In his oral evidence, he said he considered it was his role to monitor the plaintiff's progress and any offers of employment which might be made to her.[11]
[11]Transcript 71
18 A certificate of incapacity provided by Mr Williams to the plaintiff dated 12 September 2012 was tendered. It is for the period 24 September 2012 to 22 October 2012. It provides for employment restrictions that the plaintiff not lift more than 5 kilograms with her right arm; that she avoid repetitive lifting, and that she not lift above shoulder level. In his oral evidence, he confirmed that the certificate of incapacity was consistent with his opinion regarding the plaintiff's capacity to work and what restrictions he would place upon her employment.[12] It does not provide for any limitation on the hours of work which the plaintiff can work. It was a point made by Mr Moulds in his submissions. He submitted that the certificate can only be read as the plaintiff being fit for modified duties with those restrictions for full-time employment.
[12]Transcript 74
19 I do not accept that submission. I think the certificate must be read in the light of Mr Williams’ oral evidence. He was of the opinion that the plaintiff could not return to her pre-injury employment.[13] He said that he had been involved in the rehabilitation of patients over the years and on that basis, he considered that there would be a position available for the plaintiff in the workforce.[14] In relation to the hours which she could work, he said:
“Q.Yes, Your Honour. Mr Williams what hours do you think she could work?---
A.I think she'd be capable of work somewhere between three and four hours a day. I suggest she could probably work what I'd say is half a - half a normal shift but it would very much depend upon the type of job that she can do. I find that with patients who have sort of shoulder conditions or rotator cuff conditions such as this, that they often can work for short periods and then often need to rest, and work very much in a self-paced situation, in that if they try and do too much they get a lot of ache in their shoulder, a lot of weakness and then would have to stop.”[15]
[13]Transcript 72
[14]Transcript 73
[15]Transcript 75-76
20 Dr King continues to treat the plaintiff for the injury to her right shoulder. In his last two reports dated 23 January 2011[16] and 29 June 2012,[17] he essentially expressed an opinion consistent with that of Mr Williams regarding the plaintiff's capacity for employment, and also referred to the difficulties which the plaintiff has with domestic, family and general activities.
[16]PCB 28-30
[17]PCB 31
21 At present, the plaintiff continues to see Mr Williams about once a month. She uses medication to treat the pain she experiences in her right shoulder. She takes about four Nurofen and at least eight Panadol per day.[18] The plaintiff was taking medication prior to suffering the injury to her right shoulder. She has a long-standing condition affecting her lower back and right hip. I will return to the subject of that condition later in these reasons.
[18]Transcript 7
The Other Medical Opinions
22 Mr Grossbard, orthopaedic surgeon, examined the plaintiff on 3 July 2012. He expressed a different opinion to Mr Williams regarding the plaintiff's capacity for employment. He was of the opinion that the plaintiff could not return to her pre-injury employment. He said that any employment that the plaintiff should consider would need to be of a “very sedentary nature”, which would need to be undertaken at or below shoulder height, mainly using her non-dominant left hand. He forecast that the likelihood of such employment being available would be very small, and, in effect, he said that she was unemployable. He saw no likelihood of the plaintiff's condition improving.[19]
[19]PCB 39-40
23 Dr Murphy, consultant physician in rehabilitation medicine, examined the plaintiff on 14 September 2012. He also expressed a different opinion to Mr Williams regarding the plaintiff's capacity for employment. He was of the opinion that the plaintiff would be capable of undertaking very modified employment with employment restrictions consistent with the certificate of capacity provided to the plaintiff by Mr Williams. He considered that the plaintiff would only be capable of working up to a maximum of 15 hours per week. He also considered, given the plaintiff's education and vocational history, that it would be virtually impossible for her to obtain employment in the future.[20]
[20]PCB 40B-40C
24 Dr Barton, consultant occupational physician, examined the plaintiff for the defendant on 16 December 2010 and on 13 October 2011. In his first report, he expressed the opinion that the plaintiff had the capacity to undertake a variety of lighter forms of employment. He considered that it would be appropriate to impose restrictions upon her that she not lift weights of more than 5 kilograms away from her body, and work with her arms raised above chest height. Although he did not refer to her right arm, and referred to both arms, I assume that he meant to impose those restrictions only upon the use of her right arm.[21] In his second report he expressed doubt about whether the plaintiff needed to see Mr Williams as often as she was at the time of his second examination of her. He doubted the plaintiff’s motivation to return to employment, but it is not clear to me on what basis he expressed that opinion. Dr Barton considered that the plaintiff had a work capacity consistent with a variety of duties detailed in “the vocational assessment”,[22] but it is unclear what vocational assessment he was referring to unless it was the NES Vocational Assessment conducted by Mr Lucas of Konekt Ltd undertaken on 6 October 2011, reproduced in the defendant’s Court Book.[23]
[21]DCB 8
[22]DCB 12-13
[23]DCB 18-28
25 Mr Barton expressed his opinions regarding the plaintiff’s injury, her motivation for employment, and many other matters in a very perfunctory manner. His path of reasoning relevant to the expression of those opinions is absent.
26 Dr Fraser, rheumatologist, examined the plaintiff for the defendant on 14 November 2011. He was of the opinion that the surgery had not been successful. He considered that she would have some permanent impairment of the function of her right shoulder. He also considered that she would remain unfit for her pre-injury employment or for any work requiring lifting greater than 2 kilograms or any overhead or rapidly repetitive or forceful use of her right arm. He added that within the bounds of those restrictions that she was fit for suitable employment.[24]
[24]DCB 17
27 I do not accept Dr Barton's opinion regarding the plaintiff's capacity for employment for the reasons which I have already expressed, and in addition because his opinion in that respect is so out of keeping with the opinions of Mr Williams, Dr King, Mr Grossbard, Dr Murphy and Dr Fraser.
28 What is also apparent when a comparison is made regarding the plaintiff's capacity for employment between the opinions of Mr Williams, Mr Grossbard and Dr Murphy, is that Mr Grossbard and Dr Murphy have expressed a much poorer prognosis for the plaintiff and the likelihood that she cannot return to any suitable employment. Whilst Dr Fraser did not go as far as Mr Grossbard and Dr Murphy, he would place different restrictions on the plaintiff’s capacity to lift weights with her right arm, restricting her to 2 kilograms. Mr Williams considered the restriction should be 5 kilograms.
29 What strikes me as consistent in the opinions of Mr Williams, Dr King, Mr Grossbard and Dr Murphy is that they are all of the opinion that the plaintiff is not fit for her pre-injury employment; that she must have restrictions placed upon the employment that she might be able to engage in, and that they are not optimistic that the plaintiff will be able to find suitable employment when those restrictions are applied.
The Plaintiff's Prior Lower Back/Hip Condition
30 Mr Moulds submitted that I should be cautious in accepting the plaintiff's evidence because of the failure by the plaintiff to describe a serious problem which she has with her lower back and right hip. The only reference the plaintiff made to a prior lower back problem was in her first affidavit sworn 15 September 2011. She said no more than, in 2001, she injured her lower back and had some time off work, before returning to work on normal duties.
31 Mr Moulds cross examined the plaintiff from Dr King's clinical notes regarding a long-standing condition affecting her lower back and right hip. The plaintiff admitted that in April 2004, she saw Dr King, complaining of pain in her lower back and an ache in her right hip which woke her at night. She admitted that she has been troubled by that condition since.
32 The plaintiff said that she suffered a fall in 2002. It would appear that the condition affecting her lower back and right hip commenced around that time. The plaintiff saw Dr King for treatment. He prescribed her anti-inflammatory medication. She also used Panadol to treat the pain. She has been referred to Bendigo Radiology for ultrasound-guided injections into her right hip. She had the last injection about twelve months ago. She said they did not give her any relief. She takes very hot showers to obtain relief from the pain in her lower back and right hip.
33 The plaintiff said that her lower back and right hip condition wake her at night. The condition of her right hip is so bad that she cannot sleep on her right side, and has to sleep on her left side. She has suffered from leg weakness with pain in her right groin and right thigh going down to the right knee. Her right leg becomes agitated during the night and moves uncontrollably. The condition affects her capacity to rise up from a seated position and to walk up steps. She said that the condition is not always painful.[25]
[25]Transcript 18-24
34 Mr Moulds submitted that another basis upon which I should be cautious in accepting the plaintiff's evidence is because of her failure to describe a serious lower back condition which affects her husband, and the fact that she has been granted a Carer’s Pension to care for her husband.
35 The plaintiff's husband suffered a bilateral knee problem. He subsequently suffered a significant lower back injury for which he had surgery about six weeks ago. As far as the plaintiff is aware, the surgery comprised a laminectomy and a discectomy. He ceased working in October 2011.[26] The impression I obtained from the plaintiff's evidence is that her husband is disabled; however, she described him as a man with a high pain tolerance, who was independent, and who will not accept help unless he is desperate.[27]
[26]Transcript 24-25; 51-56; 62-63
[27]Transcript 62
36 Mr Moulds ultimately submitted that many of the consequences which the plaintiff has attributed to her right shoulder were also impacted upon by the conditions affecting her lower back and right hip.
37 Specifically, Mr Moulds referred to the plaintiff's use of medication. The plaintiff admitted that she took two to four Panadol per day to treat the pain in her lower back and right hip before she suffered the injury to her right shoulder, and she also took Nurofen and anti-inflammatory medication for those conditions as well.[28] He referred to some of the differences which the plaintiff said arose directly as a result of the impairment of function of her right shoulder; for example, interference with sleep when that was a pre-existing consequence of the condition affecting her lower back and right hip.
[28]Transcript 60-62
38 Mr Moulds then submitted that where there was a conflict in the evidence, that I should prefer the evidence relied upon by the defendant rather than the evidence given by the plaintiff. The submission was made on the basis that the plaintiff’s credit was so significantly affected by the omissions in her affidavits that I should take that dramatic step.
39 I have considered the submission, but I see no basis upon which I should take such a dramatic step. Firstly, Mr Moulds had the clinical notes of Dr King, so there was no surprise to the defendant, in the sense of evidence emerging during the trial which it was not able to be met.
40 Secondly, the plaintiff readily admitted that she suffered a fall in 2002 which resulted in her suffering the condition affecting her lower back and right hip; that it had affected her sleep and her ability to rise up out of a chair and climb steps, and that she had significant medical treatment over the years to treat the condition. The plaintiff's evidence was consonant with Dr King's clinical notes.
41 Thirdly, the real issue raised by Mr Moulds was limited to the failure of the plaintiff to set out these matters in her affidavits. He did not attack the truth of what the plaintiff said about those matters in her oral evidence.
42 I accept that the plaintiff should have said something more about the condition affecting her lower back and right hip; about her husband and her receipt of a Carer’s Pension, and the consequences attributable to the condition affecting her lower back and right hip in her affidavits. However, the evidence has been clearly exposed which enables me to determine what consequences are attributable to the condition affecting her lower back and her right shoulder.
43 Mr Moulds spent some time cross examining the plaintiff about her receipt of a Carer’s Pension. There was no evidence of the basis upon which the plaintiff was granted the Carer’s Pension, save that it is obvious that it was connected to her husband's disabilities, and was no doubt granted on that basis. What the terms and conditions are that apply to the Carer’s Pension are unknown to me, save that the plaintiff said that she was entitled to continue to receive it so long as she was absent from giving care to her husband for no more than 20 hours per week.
44 Mr Moulds did not take up the issue of the Carer’s Pension and whether it was of any serious importance to my consideration of the issues in this proceeding in his final address. Despite that, I do not see that it is a matter of any particular importance and I propose to ignore it.
Serious Injury
45 I propose to turn to the question of the plaintiff's application for leave relevant to loss of earning capacity consequences first.
46 The plaintiff returned to work after recovering from the surgery on 23 August 2009. She performed light duties, working 30 hours per week. The light duties were absent any mopping; sweeping; lifting; cleaning toilets; pushing trolleys or hanging up washing. She described her role as a “floater”. She was instructed to work where she was needed and within her restrictions. The work she did generally involved wiping down surfaces; light dusting; wiping trays; serving sweets in the kitchen; folding light laundry, and sometimes doing an audit in the kitchen to make sure that it had been cleaned properly.[29]
[29]PCB 19
47 In April 2010, the plaintiff was told by the defendant that her job was no longer available. She was re-assigned to Simkin House. The plaintiff spent about two hours answering telephones and filing papers and then four hours on other duties. She might make cups of tea for residents, take residents for walks or take them for short drives. She did not provide any hands-on care to any of the residents.
48 Ms Noonan, executive director of human resources with the defendant, wrote to the plaintiff by letter dated 7 October 2010.[30] The opening paragraph of the letter is as follows:
“On 12 April 2010 I wrote to you advising that as your injury had prevented you from returning to your substantive position for a period greater than twelve months, that your position would no longer be held for you.”
[30]PCB 57
49 It is clear from this that when the plaintiff returned to work on 23 August 2009 that the position she was employed in by the defendant pre-injury was no longer her designated job.
50 In the next paragraph, Ms Noonan informed the plaintiff of the following:
“Since that time Jenny Arnold from our Occupational Health and Safety team has worked with you and a number of different managers in an attempt to identify a suitable alternative role. Unfortunately no suitable alternatives have been able to be identified.”
51 Mr Moulds cross examined the plaintiff at some length regarding her return to work on 23 August 2009 and before she was reassigned to Simkin House. Essentially, the plaintiff repeated that she was a “floater”, working 30 hours per week.[31]
[31]Transcript 9-10
52 Mr Moulds also cross examined the plaintiff at some length regarding her reassignment to Simkin House. The plaintiff agreed that she was reassigned there in April 2010. During cross examination, the plaintiff elaborated on the work that she did at Simkin House. She was employed as a lifestyle assistant. There were two employees of the defendant employed as lifestyle workers at Simkin House. The work undertaken by the lifestyle workers involved playing games with residents; cooking with residents; taking residents for walks; taking residents for drives, and reading newspapers to residents.
53 The plaintiff said that the distinction between herself and the two lifestyle workers was that they were qualified. She said that to be a lifestyle worker one needed to obtain a certificate. She was not given a job description. She would only do work which she was told to do; for example, she might be told to read to a resident or take a resident for a walk. She did some filing and answering the telephone. She said that when the ward clerk went home at 3 o'clock she was asked whether she could answer the telephone, but invariably the nurses would keep the telephone with them because they needed to answer telephone calls from doctors.[32]
[32]Transcript 11-15
54 The plaintiff was then reassigned to another facility conducted by the defendant known as Stella Anderson. She worked there for two weeks.[33] The work she did there was clerical work. It also involved providing assistance because a move was being undertaken, presumably to other premises. She said that she was not trained to do any clerical work, and what she did was rather more like an assistant, in the sense that she was asked to get pens; chase down papers, and find persons who had received telephone calls.[34]
[33]Transcript 27
[34]Transcript 17-18
55 The plaintiff undertook a computer course which she considered to be wholly unproductive and uninformative. The computer course was over six weeks. It involved one attendance per week. The strong impression I gained from the plaintiff's evidence was that the instruction was at a higher level than she was able to take in, and that she found trying to understand the operation of the computer and putting it to use to be very difficult.[35]
[35]Transcript 18; 27-30
56 Mr Moulds essentially cross examined the plaintiff that she was quite capable of doing the work she was assigned to do when she first returned to work, at Simkin House and at Stella Anderson. The plaintiff agreed that she could do the work she was assigned, and that she could work 30 hours a week doing that work. However, the real issue, which I will deal with a little later in these reasons, was whether any of those alternatives were suitable employment.
57 Mr Moulds also cross examined the plaintiff at some length that she could undertake a number of forms of employment referred to in the NES Vocational Assessment. Each of the vocations referred to in the assessment are accompanied by a description of the tasks which each of those vocations would require of the person undertaking them. Mr Moulds put to the plaintiff that she was qualified by training and experience to undertake a number of those vocations on a full-time basis. The plaintiff disagreed.[36]
[36]Transcript 32-49
58 The basis of the plaintiff's disagreement was that the descriptions of the tasks in each of those vocations were cast in very general terms, and required some interpretation of the extent to which there might be the necessity, for example, for manual operations which might be beyond the restrictions placed upon the plaintiff by Mr Williams, or might involve tasks for which the plaintiff had no training, qualifications or experience.
59 I now return to the evidence of Mr Williams. What I found telling in his evidence were the qualifications he placed on his opinion that the plaintiff was capable of returning to work in suitable employment. He said that much would depend upon the type of work she returned to. He said that she would be able to work for short periods of time and would need to rest; she would need to work self-paced, and she would need to avoid doing too much, otherwise she would develop an ache in her shoulder and weakness which might well cause her to stop working, and I assume that he meant on the day when those symptoms develop.
60 I prefer the evidence of Mr Williams because I think he is in the best position to make an assessment of the nature and extent of the plaintiff’s injury and the degree to which it incapacitates her for suitable employment. His opinion is hardly a strong recommendation in favour of the plaintiff being able to realistically return to suitable employment.
61 Furthermore, I do not accept that when the plaintiff returned to work, and when she was reassigned to work at Simkin House and at Stella Anderson, that the tasks she undertook amounted to suitable employment, but rather a made up situation where the plaintiff was doing very little.
62 The plaintiff’s primary position is that she is unfit for suitable employment. I accept the plaintiff's evidence that she has a major injury to her right shoulder, which is her dominant upper limb. I think she is clearly unfit for her pre-injury work. It is for the defendant to advance some evidence that there is suitable employment for which the plaintiff is capable of undertaking.[37] It has not done so. I do not accept that the light duties which the plaintiff undertook when she returned to work amount to suitable employment, and as I have already observed, I consider each of them to have been made up to suit the plaintiff and the restrictions under which she was labouring.
[37]Giankos v Ardmona Operations Ltd [2011] VSCA 121
63 The plaintiff is a woman of limited education. She left school at an early time in her life. She has not obtained any further education and training. I think it is understandable that a person of such limited education, and lacking any particular sophistication in terms of education and training found exposure to computers intimidating, and would find exposure to work outside her experience to be likewise intimidating.
64 I have had regard to the submissions made by Mr Moulds, and in particular, to the NES Vocational Assessment, and the definition of suitable employment in finally arriving at the conclusion that based upon the evidence of Mr Williams, and supported by a number of other medical practitioners, that the limitations placed upon the plaintiff's capacity to return to employment are so significant that for all practical purposes she is unfit for suitable employment. In arriving at that conclusion, I have disregarded whether the forms of employment referred to in the NES Vocational Assessment are available, and I have had regard to the forms of employment referred to in that assessment and the types and nature of such work generally available in the employment market.
65 Therefore, it is unnecessary to me to separately consider whether the plaintiff's pain and suffering consequences likewise meet the statutory test.
Conclusion
66 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant.
67 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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