Faye Mounsey v Saltwater Investments Pty Ltd (WorkCover)
[2015] VMC 19
•19 JUNE 2015
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE E11440377
BETWEEN:
FAYE MOUNSEY Plaintiff
and-
SALTWAY INVESTMENTS PTY LTD Defendant
MAGISTRATE: GINNANE
DATE OF DECISION: 19 JUNE 2015
WHERE HEARD: MELBOURNE
CASE MAY BE CITED AS: FAYE MOUNSEY v SALTWAY INVESTMENTS PTY LTD
APPEARANCES:COUNSEL SOLICITORS
For the Plaintiff Mr Dimsey Hounslow
& Associates
For the Defendant Mr Dunstan IDP Lawyers
Catchwords: Accident Compensation Act 1985 – second entitlement period - expiry of weekly payments – whether plaintiff has capacity for suitable employment – s. 5 factors - observations as to shifting burdens – application of ‘degree of realism’ – finely balanced case – plaintiff’s application upheld – plaintiff has no current work capacity for suitable employment.
REASONS FOR DECISION
HIS HONOUR:
The plaintiff is 47 years of age. Her application is brought pursuant to the Accident Compensation Act (the Act) to review a decision of the defendant authorised insurer. By notice dated 29 November 2012 the insurer advised that the plaintiff that the second period for the receipts of weekly payments under the Act would cease from 16 March 2013. The defendant agrees that the plaintiff is not capable of returning to her pre-injury employment but says that the plaintiff has a current work capacity for suitable employment.
The core issue
What I need to assess is whether the plaintiff has no current capacity for suitable and if so whether it is likely to continue indefinitely.
The plaintiff says that in line with her physical limitations she has no current work capacity and that this is supported by the analysis undertaken by vocational assessment, medical evidence and her own evidence. The defendant says that the plaintiff has a capacity to undertake suitable employment and it also relies on vocational assessments. I will address the respective vocational assessments in the course of my discussion of the evidence.
In order to understand the matters that I have had regard to and those I have not, I mention that Mr Dunstan of counsel who appeared for the defendant acknowledged that whilst the defendant did not abandon reliance upon a 130 week vocational report undertaken by Ayres Management Services (AMS) (Ex D8) in which ten suitable employment options were identified, however if I was not satisfied that the plaintiff had a capacity to perform the employment identified in a another report compiled by Recovre dated 6 November 2014 (Ex P12), and specifically a job as a hand line packer, then the defendant would not ‘have Buckley’s chance’ in making good a capacity for the jobs identified in the AMS report. I agree with Mr Dunstan’s observation that amounted to a sensible acknowledgement of the realities of the case.
Personal background and prior employment of the plaintiff
The plaintiff was born on 16 March 1967. She was educated at St John's primary school, Frankston. School was difficult for her because of learning and literacy impediments. She was required to repeat year 4. She said that she was given special assistance through to year 6. She attended Ballan Park Technical School in Karingal. She said she found this difficult too and she said that she ‘just managed to pass each year’. She commenced year 11 but failed. She entered the workforce.
During the 1980s she worked in a variety of positions as a kitchen hand and as a barmaid. She is the mother to a son born in 1989, a daughter born in 1991 and another son born in 1992. Her youngest child still lives with her at home.
The plaintiff commenced employment with the defendant in September 2008. The defendant is in the business of producing pre-packaged foods. It is perhaps better recognised by the trading name, ‘Lite n’ Easy’. The plaintiff described her work in terms of packing foods into plastic bags and then placing them in a freezer. The employment was located at Braeside.
The plaintiff suffered injury when working for the defendant.
The work injury
On 11 November 2009 plaintiff crouched to pick up a frozen dinner from a low shelf and experienced a ‘click’ followed by pain in her right knee. The knee swelled immediately. She finished her shift and worked the following day and then attended Dr Brasier her local doctor who organised a CT scan which showed a joint effusion but no other apparent abnormality. She was treated with a painkiller and was certified unfit for work.
About a week later on 16 November 2009 the plaintiff was reviewed by Dr Brasier. She had been experiencing pain and she did not think it was improving. She was referred to Mr Rehfisch, an orthopaedic surgeon who examined her on 1 December 2009. He found she had a small effusion in knee and that she was unable to extend her right knee beyond 20° of flexion. He considered the knee was stable, but there was tenderness over the medial joint line. He considered an arthroscopy was warranted for a probable torn medial meniscus.
On 10 February 2010 Mr Rehfisch carried out an arthroscopy and identified a bucket handle tear of the medial meniscus and a deficient anterior cruciate ligament. The joint surfaces were however intact. The plaintiff was treated by partial medial meniscetomy but no treatment was carried out for the anterior cruciate ligament disruption. Post operatively the plaintiff was treated with physiotherapy.
In mid April 2010 the plaintiff returned to work having been cleared for alternative duties on modified hours comprising 4 hours a day, 4 days a week, initially working in the office of the defendant but eventually returning to work in the kitchen. Dr Brasier then cleared her for full time duties with restrictions and she was to wear a support stocking. It is noted in his reports that a brace for her knee was also arranged. There was however a further mishap to come.
On 21 May 2010 the plaintiff was pushing a trolley at a supermarket when she slipped. On 29 May 2010 Dr Brasier certified her fit to resume her normal hours on normal duties but excluding freezer work. Less than a month later, the plaintiff was to suffer a further injury when on 23 June 2010 she was walking on a wet floor in the kitchen at work and slipped causing her right lower extremity to splay outwards. She said she put her hands on the floor to prevent injuring her right knee. She said she was able to continue her work but thought her knee swelled following this episode. She attended her physiotherapist who recommended she see Mr Rehfisch. On 26 June 2010 Dr Brasier provided a referral back to Mr Rehfisch.
Mr Rehfisch saw the plaintiff on 7 July 2010. He requested an MRI which was performed on 15 July 2010. It revealed a possible lateral meniscal tear, an effusion, a disrupted anterior cruciate ligament and furthermore that the medial meniscus was truncated, but showed no tear. Mr Rehfisch recommended an anterior cruciate reconstruction.
The plaintiff endured a further mishap when on 27 September 2010 her right knee gave out from under her when she was getting out of bed which resulted in further pain.
On 28 March 2012 Mr Rehfisch carried out an arthroscopic anterior cruciate ligament reconstruction using a patellar tendon graft, with screws in the femoral and tibial condyles supplemented by a tibial staple. He identified chondral damage on the medial femoral condyle.
Post operatively the plaintiff was treated with physiotherapy and was on crutches both double and single for approximately 6 months. She did not return to work during the post operative period. She continued to be seen by Dr Brasier doctor on a monthly basis. There was little improvement in her right knee.
The plaintiff was reviewed by Mr Rehfisch on a number of occasions post surgery. Following on the referrals he reported back to the plaintiff’s treating doctors and four reports were received into evidence (Ex D10). On 1 November 2012 Mr Rehfisch expressed the opinion that the plaintiff’s incapacity in the right leg was because of ‘muscle weakness and minor scar and adhesions’. On 17 April 2013 Mr Rehfisch ordered an MRI to check on the status of the plaintiff’s right knee and he was satisfied it showed no evidence of further disruption.
On 28 August 2013 Dr Brasier reviewed the plaintiff after she slipped and injured her right knee again.
On 26 September 2013 and 23 October 2013 the plaintiff was seen by Dr Brasier who noted no significant improvement in her incapacity or symptoms. He also noted wasting of the muscles persisting in her right leg. On 30 September 2013 Dr Brasier made note of a report from the plaintiff’s physiotherapist that he was disappointed in the progress of the plaintiff’s recovery.
Dr Brazier in a report dated 11 November 2013 addressed to the plaintiffs solicitors expressed the opinion that the plaintiff’s prognosis given her ‘right leg in only slightly improved in recent years’. He went on to say that he regarded the plaintiff as unfit for preinjury duties and that she was likely to remain so in the future.
The plaintiff said she was last seen by Mr Rehfisch in April 2014 and that he referred her to a specialist concerning the wasting of her right thigh.
The plaintiff testified that she had swelling after her surgery and she said it got worse over time. She says she suffers from pain and swelling and has a lack of feeling. She says the pain is constant although it varies from time to time in intensity but when it is severe she is laid up for a day or two. She takes Panadeine Forte (6 per day on a bad day and 4 on a good day). She takes Panadol Max and she has an anti-inflammatory cream or liniment which she uses on the knee. As regards her functional capacity, the plaintiff reported that she cannot kneel and if she does so, she gets pain. She says she can stand for approximately 30 minutes but then begins to experience pain and requires medication. She said she can remain seated for a maximum of about 30 minutes. As to a walking capacity, the plaintiff says her leg is apt give way on her whilst walking. There is a park about five minutes away to which she can walk and she agreed that she can do the shopping sometimes but cannot carry greater than approximately 5 kg. She said she can manage stairs while hanging onto ramps or rails. She said that she cannot drive because her knee is not strong enough for use in operating the vehicle. She says she gets public transport as there is a bus close to her home. She also said she is driven to places by other people. As to how she spends her time during the course of the day she said that a considerable amount of time is spent on a computer and particularly on Facebook and she plays card games online. She says that she can read but that she has difficulty with big words. The plaintiff said that she has not been offered any retraining.
The plaintiff was retrenched by the defendant by letter dated 15 January 2013 with effect from 4 February 2013 (Ex P5).
Currently the plaintiff’s general practitioner is Dr Ronzon. He is located in Frankston and the plaintiff attends on him by way of consultation approximately once a month. She said that she also has physiotherapy once per month.
The plaintiff said that her role of grandmother has been diminished and that she is unable to go to the beach with her grandchildren and kick a ball with them as she once did.
The plaintiff was cross-examined. Video surveillance footage was received in evidence. A recording containing footage of the plaintiff was played. The footage that was shown included surveillance taken on 30 August 2012 (a date prior to the surgical intervention); 15 May 2014, 21 October 2014 and 28 October 2014. The plaintiff called for an admission by the defendant of the extent of surveillance footage obtained of the plaintiff and the defendant said that the dates that footage was obtained were 30 August 2011, 1, 3 and 5 September 2011, 23 October 2012, 1 and 6 November 2012, 10 and 21 December 2012, 15 May 2014, 21 and 28 October 2014 and 3 November 2014. The defendant said that a total of 66 hours and 7 minutes of footage was obtained from which only a very small amount was presented in the hearing.
The plaintiff accepted that the footage identified her. The surveillance identified the plaintiff prior to her surgery walking in a manner that appeared to be unencumbered. She is observed carrying what she agreed was a three litre plastic milk container with an estimated weight of approximately 3 kg.
Footage on 15 May 2014 identified the plaintiff lifting a grandchild out of a car and then carrying the child inside a house. The child at the time was approximately 11 months old and probably weighed in the order of 8 to 10 g. The plaintiff is also observed in the backyard of the house bringing in a basket of washing, something she said she does perhaps twice per week. Footage recorded on 21 October 2014 shows the plaintiff carrying three shopping bags inside her home. She is also observed bending. When asked about this, she said she was able to effect the movement by placing weight on her left leg.
On 28 October 2014 the applicant is shown smoking a cigarette after walking across the lawn at the rear of her home. There is nothing apparent by way of impediment or restriction. However, the plaintiff said that she recalled the day in question and said she was limping. This was not apparent to me from looking at the footage.
The plaintiff was shown a still image taken from her Facebook page posted in May 2014 in which she is pictured holding a small pig without any observable expression of difficulty on her the face. She said the pig was handed to her and placed in her arms to hold.
The plaintiff was asked about the reviews of her by Mr Rehfisch. She agreed that when she reviewed by him in about November 2012 he encouraged her to increase activity and told her that her knee was structurally sound.
When Mr Rehfisch examined the plaintiff again in April 2013 after she had undergone an MRI with a reported outcome that was good, she agreed that he continued to urge rehabilitation. In April 2014 when reviewed by Mr Rehfisch he reassured her that her knee was good and that he was at a loss to explain her symptoms. He suggested the plaintiff undergo an MRI of the lumbar spine which was performed in May 2014 and she was then reviewed by Dr Brasier.
The plaintiff is no longer being reviewed by Mr Rehfisch who I was told has determined that he has done all he can.
Dr Ronzon succeeded Dr Brasier as the plaintiff’s local treating doctor. He testified. His concessions were only grudgingly offered up in cross examination. He said that he commenced as the plaintiff's general practitioner on 19 March 2014. He said that he had seen the plaintiff on approximately seven occasions and that he continues to provide her with ongoing certificates of capacity. In determining ‘suitable employment’, s 5(a) (i) of the Act directs me among other matters to have regard to ‘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’. A Certificate of Capacity dated 10 November 2014 provided by Dr Ronzon certified the plaintiff as having no current work capacity and diagnosed ‘chronic pain syndrome right knee post right knee injury and ACL repair’ (Ex P2).
On 2 May 2014 the plaintiff was sent by her solicitors for a vocational assessment interview to Mr Bill Radley, Psychologist and Vocational Assessment Specialist. He prepared a report dated 18 May 2014 (Ex P4). Mr Radley noted that he had been asked to comment on the suitability or otherwise of the jobs suggested as suitable employment in the AMS report. This he did by way of a supplementary report dated 19 May 2014 (Part Ex P4).
The plaintiff also relied upon a report of Dr Ronzon dated 8 November 2014. Dr Ronzon noted that he had been supplied with the reports of Dr Brazier and Mr Radley by way of background information. Dr Ronzon reported that the plaintiff suffers a chronic pain syndrome of her right knee/leg which was caused by a work-related right knee injury and consequential medical meniscal and anterior cruciate tears with continuing pain despite surgery. Dr Ronzon wrote that the plaintiff suffered ‘a chronic pain syndrome of her right knee/leg’ that came to the fore ‘on a background of work related right knee injuries with consequential medical meniscal and anterior cruciate tears’. He wrote that ‘there is a direct relationship between her chronic pain and the workplace injury’.
Dr Ronzon after extracting parts of Mr Radley’s report wrote that the plaintiff has no capacity for ‘suitable employment’, and said that, ‘I agree with the following assessment results and conclusions from Mr Radley’ that:
· the plaintiff has no capacity to return to preinjury or similar occupation now or in this foreseeable future;
· the plaintiff has no capacity for any type of alternative employment for which she currently has the necessary skills, training and/or experience;
· the plaintiff has no capacity for any type of occupational retraining
As far as prognosis was concerned, Dr Ronzon reported that the plaintiff is likely to have no work capacity for any alternative employment in the future and is effectively unemployable. He said that the plaintiff’s ‘prognosis is poor considering there has been no improvement over the last two years and also due to the other factors as outlined in Mr Radley’s reports’. He concluded that, ‘It may be possible to improve her own management of her chronic pain and associated psychological impact by being assessed and managed by a multidisciplinary pain management program and a psychologist’.
In cross-examination, Mr Dunstan suggested to Dr Ronzon that he had done little other than adopt the vocational assessment report of Mr Radley. He responded by saying that he deferred to Mr Radley’s expertise in vocational matters although on cross-examination he appeared confused by Mr Radley’s qualifications. Dr Ronzon was also challenged about the reliability of his opinion of the plaintiff’s condition in light of Mr Rehfisch’s judgment that save for minor muscle weakness for which he had suggested increased activity and physiotherapy by the plaintiff he could not find anything structurally wrong with the knee.
It is unfortunate that there is no current report from Mr Rehfisch the treating orthopaedic surgeon about work capacity because of her knee. His reports to the plaintiff’s treating doctors were frankly that he was at a loss to comprehend her account of pain and his opinions as to the plaintiff’s progress can be seen in extracts from his reports to the plaintiff’s treating doctors.
In his report dated 9 April 2013, Mr Rehfisch wrote that:
She is now one year from the reconstruction and clinically the knee appears stable. She does complain of various areas of disk discomfort in the knee and I performed an x-ray to see if there were any obvious problems.
…I do not think the graft has failed. It seems to be quite stable, clinically and there are no other obvious indicators to say that there is a problem with it.
On 18 April 2013, Mr Rehfisch reported that:
The scan shows no other internal derangements of any significance although I do know that she's got some quantum lesions in the knee. The scan doesn't show any disruption of the ACL and I can readily find nothing structural to explain her symptoms.
I suspect the only explanation is some degree of muscle and I think she just needs to continue with her rehab program.
On 1 April 2014 Mr Rehfisch reported that:
She is now two years from the surgery and has ongoing symptoms of pain, instability and clicking. Symptoms are relatively non-specific, although she does describe hyperaesthesia on the lateral side of the scar, (quite a normal or routine finding after mid line knee incision) and her significant disability from her knee pain.
On examination there was no effusion but she did have wasted quadriceps and a very hypersensitive anterior region to the knee. She did not like me examining the patella or the scar. These findings do seem out of context with any specific mechanical problem but would appear more neurological.
I wonder if she has got a variant of complex regional syndrome as she was noted to have some similar changes at a review by Andrew Webber prior to my surgery.
At the same time her examination does show that her graft stretched slightly with a slight increase in the anterior posterior glide but her pivot shift test does appear to be negative. I think the graft is still working and I think a lot of her problems are due to a neurological basis for her symptoms.
I could not demonstrate any particular hip pathology but an MRI scan of the lumbar spine may be worth pursuing in light of neurological abnormalities.
It is evident in his reports to the plaintiff’s treating doctors that Mr Rehfisch could find no basis in the plaintiff’s pathology to account for the ongoing problems with the right knee. Whether it was neurological or not and back related is unknown. However, and any in any event, the question I am required to keep in mind is not what else might account for the plaintiff’s pain stemming from her accepted work injuries, but whether she has a capacity for suitable employment.
Mr Dunstan cross-examined Dr Ronzon by reference to the characteristic requirements of the hand line packing job identified in the Recovre report and principally relied upon as constituting ‘suitable employment’. Dr Ronzon agreed with Mr Dunstan that the plaintiff had not made a complaint to him of an inability to walk. He said that he was uncertain if she would have difficulty in using public transport. Dr Ronzon said that his advice to the plaintiff was ‘to be cautious’ and to do ‘what she can do within her limitations’.
Mr Dunstan also cross-examined Dr Ronzon regarding his opinion of the plaintiff’s capacity for the ‘suitable employment’ by reference to the video surveillance footage. Dr Ronzon said that the video surveillance footage did not cause him to alter his opinion of the plaintiff’s condition because as he put it, ‘they are only snippets I have seen’.
Dr Ronzon said that as a general practitioner he was not qualified to assess the functional aspects of any particular job, but he acknowledged, when asked by Mr Dunstan, that ‘from a medical point of view’ a job that freely allowed an alteration between sitting and standing ought not to cause a problem for the plaintiff.
Dr Ronzon was unaware until told by Mr Dunstan, that the plaintiff’s evidence had been that she spends a good proportion of her day at home seated and playing computer games.
Dr Ronzon agreed that the plaintiff was not limited in the use of her arms, was capable of using her upper body, suffered from quadriceps weakness and that her main problem was ‘managing her pain’.
Dr Ronzon remained of the opinion that the plaintiff had no current work capacity.
The tendered medical and other evidence
Other than Dr Ronzon, the medical evidence, some of which I have already referred to, was tendered between the parties without the necessity to call the authors.
Dr Polke is an orthopaedic surgeon and in a report to the defendants insurers dated 4 September 2012 following on an examination of the plaintiff, he set out a largely historical account about the plaintiff and that I need not repeat. He thought she had a ‘reasonable prognosis’ and that ‘she still suffers from some disability’. Furthermore, he noted in respect of other matters that:
I believe that she should be encouraged to undertake a return to work programme within her current capabilities and avoid excessive standing and sitting and the use of stairs and ladders; as her right knee improves and stabilises there is no reason why she should not be able to gradually return to normal pre-injury duties and hours.
Mr Hart is an Associate Professor of surgery and a consultant orthopaedic surgeon who examined the plaintiff, and in a report dated 23 July 2014 to the defendant’s insurer, also detailed a history taken from the plaintiff. Mr Hart said that the plaintiff complained to him of constant pain in the right knee anteriorly and posteriorly, and that the pain is worse in cold weather and with walking on uneven ground. He said the plaintiff told him that she cannot squat or kneel and that navigating stairs aggravates her pain. He reported her complaint of swelling and observed that the knee was swollen on the date of examination.
Mr Hart reported on the imaging he had been supplied with including x-rays and an MRI and he also gave consideration to the practitioner records from the Carrum Downs Medical Centre and the Primary Care Medical Centre Frankston. As to the plaintiff’s diagnosis he said:
The workers sustained an acute injury to the right knee in the initial episode of work on 11 November 2009. She developed immediate swelling following the injury and when she presented to the orthopaedic surgeon her knee was locked in 20° of flexion.
She was subsequently shown to have a bucket handle tear of the medial meniscus, which could have been responsible for the locking, but her limitation of extension may have been related to a complete tear of anterior cruciate ligament. The onset of swelling immediately following the initial event suggests that she sustained an anterior cruciate ligament injury at that time, although I note that Mr Rehfisch commented that the knee was stable when he assessed her on 1 December 2009. An MRI was not performed prior to the initial arthroscopy.
It is my opinion that she sustained a bucket handle tear of the medial meniscus and a tear of the anterior cruciate ligament in the initial injury on 11 November 2009 and that the injury on 23 June 2010 constituted an aggravation of a pre-existing condition. Her anterior cruciate deficiency was not addressed until after the second injury.
She has made slow progress, particularly since the knee reconstruction and complains of constant pain the knee. She has not been able to return to work.
…
Her prognosis is guarded because of the very prolonged recovery following the anterior cruciate reconstruction. It would be appropriate to refer her to a pain management consultant experienced in the treatment of Complex Regional Pain Syndrome Type I, but the prolonged time since the knee reconstruction will make treatment of that condition more difficult.
Mr Hart did not question that the plaintiff’s employment was a direct cause for alleged condition and he said that the plaintiff’s employment was then still contributing to her incapacity. He said that the plaintiff did not have the capacity for preinjury employment. He reported that she has a limited ability to sit and stand for more than 30 minutes. When responding to a question of the plaintiff’s capacity for suitable employment and the extent to which any type of work would require restrictions, Mr Hart said:
She may be able to perform some work where she could alternatively sit and stand, but has no computer skills and has only very limited office work following her first operation I do not consider should be suitable for work as an information clerk, car rental sales assistant or tourist information officer. If she were able to find a suitable job where she could alternatively sit and stand, which was compatible with a reasonable performance, she could theoretically work as a hand packer part assembler or product tester.
I do not consider that she would be able to work as a sale assistant or container filler because of the standing required.
The worker would have difficulty travelling to work because she has not been able to drive a car since the rear knee reconstruction because of her painful knee.
Dr Wendy Triggs is a Consultant Psychiatrist. She provided a report to the defendant’s insurer dated 23 October 2014. She assessed the plaintiff on 23 October 2014 for the purposes of the provision of an independent medical opinion. She reported on the plaintiff’s history of injury referable to the events of 2009 and 2010. She noted at the time of examination the plaintiff had not been at work for the last 2 ½ years and was continuing to complain of ongoing knee pain. The plaintiff reported experiencing a burning pain sensation in her knee and leg and that her sleep was poor due to being woken with pain. She reported a clicking and also from suffering headaches. Dr Triggs reported that the plaintiff ‘briefly had suicidal ideas a year ago’ and of having experienced ‘anxiety symptoms when on public transport because she is scared that her knee may be knocked’.
Dr Triggs also took a history of the plaintiff's personal circumstances and social history and diagnosed a mild Adjustment Disorder and a Persistent Pain Syndrome. She though that consideration may be given to a trial of antidepressant medication with the prospect of it assisting the plaintiff’s pain threshold. As to prognosis, Dr Triggs said that the plaintiff's capacity is only affected by any physical restrictions and not by reason of any psychiatric restriction.
Dr David Barton is an Occupational Physician and the defendant also relied upon a report from him dated 27 October 2014 that followed a consultation he conducted with the plaintiff on 23 October 2014. Dr Barton detailed the plaintiff's occupational history including the account of injury sustained on 11 November 2009 at work, the arthroscopic surgery performed on 10 February 2010, the return to work in which the plaintiff performed restricted duties on reduced hours and the subsequent injury to the knee on 23 June 2010. He also detailed surgical intervention by way of ligament repair. Dr Barton reported on the plaintiff's current symptoms and her assessment of her condition which she said was ‘worse following surgery’. Dr Barton reported that the plaintiff described pain in multiple areas including above the patella, behind the knee, a burning sensation centred on the front of the knee and pain that extended down the front of the tibia. In addition he noted the plaintiff's account of her knee clicking. She reported as well her knee having given away under her and having fallen over on ‘a few occasions’ and her belief that she cannot return to work.
On examination, Dr Barton reported that specific examination of the right knee showed some tenderness behind the knee and some tingling on light palpitation over the front of the knee near the surgical scar but there was no temperature increase in the right knee and no joint effusion. Movement was limited from +3 to 110°. There was full range of movement noted on the left side and the knee joint was stable on clinical examination. From a physical point of view he believed the plaintiff’s prognosis was quite good because the objective assessment of the knee showed little by way of pathology. He doubted the need for further treatment. He regarded the knee as a partial problem for which the plaintiff's employment can be seen as a materially contributing factor.
The defendant also relied on reports by Mr Kudelka, orthopaedic surgeon. On 7 November 2012, Mr Kudelka after noting that he had previously examined the plaintiff on 27 September 2012 reported that the operative procedures the plaintiff had undergone have ‘incompletely relieved her symptoms, which remain incapacitating for the physically demanding work she previously carried out as a Kitchen Hand for a period of two years’ with the defendant. He believed that the plaintiff’s then existing treatment, of physiotherapy exercises, simple analgesics and the application of liniment, was appropriate. He did not believe that the plaintiff’s condition would return to normal function in the future. He went on to say that the occurrence on 23 June 2010 was ‘a significant mechanical injury due to a fall’. He referred to the previous mechanical injury occasioned by the fall in 2009. He thought it was doubtful the plaintiff could regain sufficient strength and function in the right knee to return to preinjury duties. He did however express the belief that the plaintiff had a limited current work capacity and that implicitly, if not explicitly, addressed he factors that inform the meaning of ‘suitable employment’ under the Act when he said that:
She cannot perform any tasks involving prolonged sitting, standing, bending, stooping, lifting and carrying of weights as pain, weakness and restricted function of her right knee is her current incapacity. It is incompatible with the full range of preinjury duties as a Kitchen Hand.
Her age, education, skills and work experience would have to be investigated by a vocational assessment to see what areas of employment can realistically be achieved at her age 45.
The patient’s place of residence is Carrum Downs, a Melbourne suburb
There is no return to work plan
At the time of this report Mr Kudelka did not have any vocational assessment to hand. By 3 December 2012, Mr Kudelka did have occupational reporting available and commented on the AMS 130 Week Vocational Assessment Report. He said:
This suggests ten suitable employment options. As my recommendation is for no prolonged sitting, standing, bending, stooping, lifting or carrying, the report states that it will be possible to persuade an employer to provide what would essentially be a sedentary or part-sedentary occupation. It is suggested that her English literacy is doubtful and may require further examination but otherwise all positions appears suitable, from the orthopaedic point of view, provided the described restricted mobility is accommodated.
In addition to the medicine, Mr Dunstan referred to the extensive DVD surveillance and submitted that the surveillance footage is a more reliable indication of the plaintiff’s condition than her oral evidence and that her oral evidence represented an exaggeration of her limitation on use of the right knee. The defendant submitted that there was nothing by way of evidence from Mr Rehfisch or in the revealed pathology of the plaintiff’s condition to suggest that she cannot work because of the right knee injury.
The evidence relied on by the plaintiff consisted of a number of medical reports including reports from Dr David Middleton, Occupational Health and Rehabilitation Consultant dated 17 November 2014. Dr Middleton examined the plaintiff on 30 October 2014. He took a history of her injury at work including an account of the 23 June 2010 incident and the medical attendances that followed. He noted that he had referred the plaintiff to the WorkCover agency authority for a multi disciplinary pain management program requiring assessment specialist.
As recounted to Dr Middleton by the plaintiff, her main point of pain is at the back of the right knee. She described pain to him as a constant aching which varied in intensity but that was aggravated by prolonged posture and excessive walking. She also described pain behind the right patella which she characterised as a burning pain which was also aggravated by activities, ‘making it impossible to kneel, squat and having difficulty with steps and stairs and walking downhill’. The plaintiff also reported to Dr Middleton that the right knee has tended to collapse, that it is always swollen, with swelling increasing throughout the course of the day and settling overnight yet never resolving.
Dr Middleton had access to radiology comprising a CT scan of the right knee dated 12 November 2009, an operation report dated 10 February 2010, a plain x-ray of the right knee dated 7 July 2010, an MRI scan of the right knee dated 15 July 2010, an x-ray of the right knee dated 27 March 2013 and an MRI scan of the right knee dated 11 April 2013.
Dr Middleton expressed the opinion that the plaintiff's failure to fully recover from injury which he regarded as severely aggravated on 22 June 2010 had resulted in persistent pain which had progressed and developed as chronic pain with sympathetic aggravation. The consequence of this was the further surgery in the form of an anterior cruciate ligament repair that was undertaken on 28 March 2012. Dr Middleton said that that at no time had the plaintiff fully recovered.
Dr Middleton expressed the opinion that the plaintiff no longer has a capacity to safely return to her preinjury employment either on a full-time or part-time basis.
As to the plaintiff’s capacity to undertake suitable employment, Dr Middleton’s wrote that the plaintiff’s workplace experience is ‘totally reliant upon an excellent and reliable physical capacity that she no longer has’ and he made mention of the absence of vocational education afforded the plaintiff to date. He said as well that in his opinion the plaintiff’s physical capacity is restricted to certain sedentary, non-manual duties and that such duties would need to be performed in a self-paced manner with the provision for work breaks as required. He said that the plaintiff would need to be able to change posture on an as needs basis in order to circumvent the onset of increased pain. Accordingly, in his opinion she would need to avoid prolonged sitting, standing, bending, stooping, squatting and carrying weights, applying a maximum effective weight to 5 kg on an occasional basis and 2.5 kg on an intermittent basis, undertaking no repetitive activities involving the previously stated activities. He also stated that given the period of time that has passed since the plaintiff worked she would need to commence a graduated return to work plan, perhaps something in the order of 2 hours in any one day, 3 non-consecutive days in any one week.
Dr Middleton referred to the AMS 130 week vocational assessment and to each of the identified positions. He was critical of the vocational assessment undertaken and expressed the opinion that the plaintiff does not have the capacity to perform the job options identified as they would not conform to the restrictions and limitation he had identified.
Dr Middleton prepared a Supplementary Report to the plaintiff's solicitors dated 18 November 2014. It was penned by way of a response to the medical report of Dr Barton, dated 27 October 2014. Dr Middleton took exception with the mechanism by which Dr Barton had assessed the plaintiff as a person who appeared ‘calm and relaxed’ and the absence of disclosed reasoning to support his opinion that, ‘I believe the worker has a far greater capacity for work than she which is prepared to acknowledge’. Dr Middleton was as well critical of Dr Barton for not having documented the plaintiff’s postural endurance including her account that she had ceased to drive and for not having addressed her narrow work experience and lack of literacy and numeracy skills. Dr Middleton concluded that in his view, Dr Barton’s opinion that the plaintiff has a capacity to perform ‘simple packaging tasks’ is unrealistic.
Dr Middleton also expressed a view about the ‘Recovre ‘Employment Capacity Analysis’. His opinion is that all of the jobs nominated are process driven and as a result cannot be self-paced, something which he expressed to be contrary to the requirement contained in his report of recommended restrictions dated 17 November 2014.
Dr Middleton’s supplementary report commented on the lack of attention afforded by the authors of the report in assessing the medical evidence and restrictions particularly those that had been noted by Mr Kudelka that the plaintiff should not be involved in prolonged sitting, standing, bending, stooping, lifting, carrying weights and neither was there an indication that the authors had taken account of the plaintiff’s safe postural endurance.
As regards the hand line packing process manufacturing position, Dr Middleton said that the relevant indicia identified for the job would exceed the plaintiff’s physical capacity. Furthermore he commented that the question of her inability to drive to a job had not been addressed. Therefore, in his opinion, the job and like processing work identified in the Recovre report does not constitute suitable employment for the purposes of the Act.
The Law
The legislative framework is that an injured worker is entitled to receive weekly payments of compensation after the expiry of the second entitlement period (130 weeks) if she has ‘no current work capacity’ and she is likely to continue indefinitely to have no current work capacity. Payments of weekly compensation cease unless the plaintiff can establish that she has no current work capacity and that such a state of affairs is likely to continue indefinitely.
‘Current work capacity’ in relation to a worker, means 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.
‘No current work capacity’, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s preinjury employment or in suitable employment.
‘Suitable employment’ means as follows:
‘Suitable employment’, in 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;
A plaintiff need only establish a prima facie case that no suitable employment exists and in such an instance a plaintiff will then be entitled to succeed unless the Court is satisfied that the defendant has produced evidence sufficient to raise some specific alternatives for consideration as suitable employment. In my view, and being realistic, the defendant is required to adduce evidence sufficient to give rise to a real possibility that there are particular types of employment available in the community which the plaintiff is capable of performing. If I am not satisfied of that then the defendant will fail. Thus there exists an evidentiary onus on the defendant on this issue. This is really no differently put by me than it was by Smith J in Public Transport Corporation v Mervyn Pitts [2007] VSC 356. Largely speaking the matters will be factual in nature and fall to the defendant to adduce.
Dinatale v Sweeney Research [2013] VSC 414 concerned an appeal on a question of law from a decision of this Court in which an application to set aside a decision of the employer to terminate the worker’s receipt of weekly payments failed. The payments were terminated on the basis that the worker had been paid a total of 130 weeks and had a current work capacity or, alternatively, had no current work capacity but it was not likely that this would continue indefinitely. The Magistrate dismissed the workers claim. The Magistrate concluded that the worker had an ability to return to work in suitable employment and he was satisfied based on consideration of all the evidence including the worker's own admissions that she could perform the identified tasks of a position contained in a vocational assessment report provided by the employer and that she had not established that she did not have ‘no current work capacity’ at any stage since the cessation of the payments. A number of grounds of appeal were taken against the decision of Magistrate. Beach J (as he then was) considered the reasons below and the fact that a specific job was identified and that the worker been cross-examined about her ability to perform the work in the identified position of ‘inquiry officer’. The worker had been asked and answered a number of questions, the effect of which was that she agreed that she could perform all of the relevant duties and cope with all of the identified demands of the job.
The grounds of appeal asserted that the Magistrate erred in law in failing to hold that, the worker having established a prima facie case that no suitable employment as defined in the Act was available to her, an evidentiary onus passed to the employer to adduce evidence that there was employment available in the community which the worker was capable of performing. His Honour rejected that submission and said:
First, on the evidence to which I have already referred, the Magistrate was not bound to hold that the appellant had established a prima facie case that no suitable employment was available to her. Secondly, even if any relevant evidentiary onus passed to the respondent, this was discharged by the tendering of the vocational assessment evidence to which I have already referred. Again, the short point is that, on the evidence, the appellant failed to make out a case.
In ground five it is asserted that the Magistrate erred in law in treating the evidence that the appellant would be capable of performing some aspects of the job of inquiry officer, as establishing that there was suitable employment available in the community which the appellant was capable of performing.
This ground must also fail. The evidence of the appellant was that she was able to perform all of the identified tasks associated with the position of inquiry officer. To the extent of the appellants counsel submitted to the contrary below, that submission was what rightly rejected by the Magistrate. The evidence was that the appellant could perform each of the identified duties of an inquiry officer. Further, the vocational assessment evidence was that the appellant could perform the tasks associated with this position, and the position in fact existed and was relevantly available to the appellant.
It may be distilled from Dinatale, that where there is a ‘prima facie’ case that there is no suitable employment available to an injured plaintiff, then an onus shifts to a defendant, which will be discharged upon the provision of the vocational evidence from which facts the plaintiff then must prove a lack of capacity to perform suitable employment.
I am satisfied that the plaintiff has established a prima facie case of an incapacity to undertake suitable employment and I am also satisfied that the defendant has discharged its obligation in the provision of the vocational assessment evidence comprising AMS and Recovre reports such as to give rise to the possibility of the existence of suitable employment. Therefore, in light of the same, has the plaintiff discharged her obligation to establish on the balance of probabilities that she does not have the capacity to undertake the employment identified by the defendant therefore rendering it unsuitable?
The scope of the meaning to be afforded ‘suitable employment’ was addressed by the Court of Appeal in Barwon Spinners Pty Ltd v Podolack [2005] 14 VR 622 in which it was said:
The concept of ‘suitable employment’ will, of course, give rise to difficulties from time to time, but the thrust of the definition is plain enough. It looks to the possibility of employment after injury; and hence the reference to ‘work for which the worker is currently suited’. Age, education and experience are among the matters relevant, as are also the nature, and no doubt the extent, of the workers incapacity and, of course, preinjury employment. Obviously employment is not to be regarded as ‘suitable’ if situated too far from the worker’s place of residence; … The expression “whether or not that work is available” emphasises that the definition is looking at the capacity to work, meaning that physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, and that his ‘suitable employment’ whether or not the job is currently available.
In Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230 the Court of Appeal said when commenting on the proper ambit of ‘suitable employment’ introduced into the legislation with the comment of the relevant Minister that in effect that no regard is to be taken of whether work for the is a type or nature that is generally available in the employment market said:
I consider that the legislature intended that the worker is loss of capacity was to be determined having regard to work that is generally available in the employment market, rather than a position tailored to meet the particular needs of individual worker, who is incapable of his normal work.
In a decision of this Court in Manthopoulos v Spencwill Nominees [MMC 26 April 2012] His Honour Magistrate Garnett said:
It is still necessary for the court to determine whether the suggested employment exists, to analyse the employment requirements from the physical, and if necessary, a psychological aspect and to apply the relevant matters as set out in the definition of suitable employment in s 5. After undertaking this analysis, applying ‘a degree of realism’ and after disregarding industrial factors, a determination can be made as to whether the worker has a capacity for ‘suitable employment’. Furthermore, when considering whether a worker has a capacity for ‘suitable employment’, the suggested suitable employment needs to be analysed by specific reference to the particulars of the job, the medical restrictions and personal characteristics of the worker in addition to the factors set out in the definition.
It is also important to bear in mind the distinction between capacity for a return to modified duties and a work capacity for suitable employment: Sodexo Australia v Karen Rowe & Ors [2009] VSC 298.
The central question for me however is not to concentrate on one aspect of the evidence in isolation but to assess the whole of the evidence in order to determine if the defendant has discharged its burden in satisfying me that the plaintiff could undertake suitable employment having regard to the matters contained in the definition.
The plaintiff’s place of residence might be regarded as problematic. The plaintiff is unable to drive to the identified suitable employment and in light of this, she was asked by Mr Dimsey how she would go about attending for work to perform the hand line packing job located in Dandenong. She said she would presumably need to take a bus from her home to Frankston and from Frankston to Dandenong and then depending on the exact location of the job, take yet another bus. At the end of the day, she would need to do repeat the process. She said that she could not manage such a journey coupled with the duties of the job on a full time basis. I bear in mind that the plaintiff said that she manages to attend on Dr Ronzon in Frankston by bus from time to time and she does so by bus. However, in my view, this type of commute is by no means the same type of impost on her as attending the job would be. The plaintiff said that at the end of such a day after seeing her doctor she is in pain and needs to remain elevated.
In final address Mr Dunstan contended that ‘swelling can be iced’ and that ‘if every one can’t work because of a level of pain, there will be a lot of people who can’t work’. Whilst I comprehend the manner and purpose for which the contention was made by counsel when responding to matters raised by me in argument, nonetheless the degree of realism in expecting an injured worker to endure ongoing pain as a result of undertaking suitable employment should perhaps be better assessed in light of the statement by Judge GD Lewis in Holt v Kleyn Plant Hire Pty Ltd (unreported decision) of the elementary requirements of employment, when he said that:
However, employment, even of the lightest kind must involve punctuality, regular attendance at a consistent capacities to the work required. The plaintiff is adamant that on his ‘bad days’, which he experiences with regularity, he would not be able to cope with any realistic employment
In Dinatale, as was pointed out by His Honour, the appellant had agreed in cross-examination that she was capable of performing all of the identified tasks commensurate with the position of Inquiry Officer. So too, before me the plaintiff largely agreed with Mr Dunstan that she could undertake each of the physical requirements of the job of a hand line packer as they were put to her for comment by Mr Dunstan. I add that I found the plaintiff a woman who was willing to make proper concessions when warranted and, for example, she acknowledged that she experienced no problems with her arms and when asked about a capacity to stuff envelopes, invoices, brochures and the like, she said, ‘Yes I think I could do this, I don’t know’. She said when asked if she could ‘stuff and seal things in plastic sleeves such as brochures and heat seal them closed whilst seated or standing’, ‘I could do that’ and she agreed that she could use a ‘heavy duty stapler’ and use a roller to apply envelope glue. There were sundry jobs identified as well as part of the requirement for the job such as cleaning and maintenance of the general work area, which by and large the plaintiff appeared to acknowledge she could perform without expressly saying so.
However, it seems to me, that other factors bear consideration and evaluation as well. Whilst it is very relevant to keep in mind, as I have, the plaintiff’s concessions of her perceived capacity to discharge the constituent elements of a job, those concessions are not necessarily analogous to a concession that she has a capacity to do such a job when each of the elements of it are combined and are required to be performed on an ongoing and repeated basis and with the elementary expectations of a job of a type addressed by Judge GD Lewis in Kleyn’s case.
In my opinion the suggested ‘suitable employment’ is not realistic. I am satisfied by the plaintiff’s account in evidence of her condition such that she is not capable of the employment. This judgment is also informed by the plaintiff’s medical condition and the certificate of capacity issued by Dr Ronzon to which I have already referred.
Mr Dunstan submitted that a capacity may be satisfied by way of undertaking part time employment. I accept this is so but the job does not afford part time employment. Casual employment may be offered by the employer as referred to by Mr Dunstan, but that is something altogether different. Casual employment offers no guarantee of a minimum engagement and hence it is not known what hours, and whether regular or irregular could be made available, and in my view of the matter, this renders the job unsatisfactory because of the uncertainty when assessed against the plaintiff’s certified condition. Mr Dunstan suggested that the position the plaintiff would face need be no more than a return to work on a trial basis, to be assessed and that optimistically her hours of work and number of days could progressively increase from a low base. It is not readily discernible that a casual engagement would facilitate this in any event.
If I am wrong about the effect of casual employment, then in any event, I am satisfied by the evidence led for the plaintiff that the job requires a capacity to squat, if only occasionally, and this is something the plaintiff is not capable of in light of her operative medical restrictions and current work certificate. The plaintiff has restrictions in the right thigh that constitutes the main muscle required to push up from a squat position. I have had regard to the video surveillance evidence and there is nothing in it from which I could be satisfied that the plaintiff can squat.
The Recovre report on the job to which attention was focussed identified 15 generic packing benches of which 13 are seated and 2 permit standing and that a worker has the option to set up at either a seated or standing work bench in performing the work. Mr Dimsey submitted that the job did not offer the discretionary flexibility suggested by Mr Dunstan and that the situation was an either or requirement. The report provided of the position makes reference to the capacity to add a chair for workers who choose one. Thus Mr Dunstan submitted that the job can be performed by workers seated together and there is the option to stand and for a chair to be made available at which a worker may sit with an elevated footrest. Mr Dimsey submitted that the reality of the position is that a job will exist as contemplated under the Act when its functional features accommodate a worker’s restrictions whereas in this case, agreed accommodations need to be made which are at the discretion of the employer, and therefore, cannot be said to amount to work for which the plaintiff has a capacity. If this is the case then I regard it as an allowance that may be made to accommodate the ordinary performance of the work and not the provision of a job that in its ordinary discharge the plaintiff can perform.
The job requires a degree of lifting. Mr Dunstan submitted that just as the plaintiff had been observed on video surveillance picking up her grandson, there would be no reason to think that she could not lift 2 or 3 times per hour a tub that when full might weigh up to 6.7 kgs. Whilst I am satisfied by the defendant that the plaintiff has a capacity to lift such a tub I am also satisfied by the plaintiff’s evidence that the restrictions on weight lifting does not contemplate a capacity on her part to be engaged in multiple lifting in the course of each hour of a working day.
As to other factors such as the plaintiff’s age, education, skills and work experience, they are not such as to exclude her from the proposed suitable employment.
In endeavouring to make the proper assessment of the matter in accordance with s 5 of the Act I have endeavoured to apply a sensible approach to the evidence. I have borne in mind that the legislation under consideration is beneficial in nature. In approaching the matter of my assessment of the evidence and the application of the statute and whilst I think the matter is finely balanced and despite the defendant having discharged its requirements, I am also satisfied that the plaintiff has established on the balance of probabilities that she labours from a ‘no current capacity’ for the ‘suitable employment’ and that the same is likely to continue indefinitely.
100.In light of the above reasons the plaintiff is entitled to a declaration of no current work capacity and that the same is likely to continue indefinitely. She is entitled to an order to setting aside the decision dated 29 November 2012 to cease weekly payments with effect from 16 March 2013 and an order that she be paid weekly payments at a rate applicable for no current work capacity from the date of termination to date and to continue in accordance with the Act.
101.I direct that the parties file a minute of order to give effect to my decision within 7 days of today and I reserve liberty to apply.
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