Ferguson v Victorian WorkCover Authority
[2019] VCC 636
•3 May 2019
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-03692
| Wayne Leslie Ferguson | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 May 2019 | |
DATE OF JUDGMENT: | 3 May 2019 | |
CASE MAY BE CITED AS: | Ferguson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 636 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – injury to the right shoulder
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:Rosemary Anne Richter v Ian Malcolm Driscoll & Ors [2016] VSCA 142.
Judgment: Leave Granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Seccull QC with Mr S Jurica of Counsel | Slater & Gordon |
| For the Defendant | Mr R Middleton QC with Ms F Spencer of Counsel | Minter Ellison |
HIS HONOUR:
1 The plaintiff makes application to commence a proceeding claiming damages for the pain and suffering and pecuniary loss consequences of injuries sustained to his right shoulder in the course of his employment with the defendant.
2 The relevant period of employment is between 2008, the time at which the plaintiff commenced employment with the defendant, and 2017, the date upon which the plaintiff last worked for the defendant.
3 There is no issue that as the result of repetitive work, the plaintiff sustained an injury to his right shoulder in respect of which he underwent an arthroscopic decompression in the course of which:
(i) his right acromio-clavicular joint was excised;
(ii) a long headed biceps tenotomy was performed;
(iii) the labrum of the shoulder was repaired;
(iv) a transverse tear measuring 1.5 cm x 1 cm in the supraspinatus was also repaired.
4 The injury the subject of this application involves the above injury to the right shoulder and the impairment of function relied upon is that of the right dominant arm.
5 It is appropriate, given the plaintiff’s medical history, that I record the relevant chronology in this instance in respect of which there is no issue:
(i) the plaintiff commenced employment with the defendant in November 2008 on a full-time basis as a building facilities and maintenance worker;
(ii) in 2011 the plaintiff suffered a significant injury in which he twisted his right knee which required the plaintiff to undergo three operations including a knee replacement;
(iii) in early 2015 the plaintiff presented to his general practitioner, Dr Pope, complaining of increasing right shoulder pain;
(iv) Dr Pope referred the plaintiff to Mr Byrne, an orthopaedic surgeon, who obtained a history of insidious pain to the shoulder which had commenced two years earlier. Upon investigating the shoulder, Mr Byrne undertook the surgery on 26 May 2015 which I have described in paragraph 3 above;
(v) after a period of recuperation from the surgery the plaintiff in late 2015 returned to employment with the defendant. Whilst the plaintiff commenced on light duties he subsequently undertook full-time hours on duties which were recorded as being normal and unrestricted (whilst there is an issue about the precise work activities the plaintiff undertook in performing those duties I will make specific findings as to that issue in the course of my reasons);
(vi) the plaintiff suffered injury to his left knee on 16 January 2017 when he struck his knee in the course of carrying shelves down some stairs. That injury has been treated by the performance of replacement surgery.
(vii) whilst the plaintiff remains employed by the defendant he has not worked since his knee replacement surgery and continues to receive payments of compensation with respect to that injury.
6 Given that the plaintiff presents with a comorbidity in his left knee which clearly operates to incapacitate him from employment and at the same time he asserts that the condition in his right shoulder also incapacitates him from employment, in this application I am required to identify the discrete impact of the injury with which the plaintiff presents in his right shoulder in so far as that injury operates to cause him pain, to restrict the activities in which he engages and to restrict his capacity for work.
7 In making my findings in this instance I will do so on the basis that the findings are made having excluded any influence which any injury or condition, other than the compensable condition with which the plaintiff presents in his right shoulder, has upon the finding in question.
The credit issues and other furphies raised by the defendant
8 In his first affidavit, the plaintiff described his return to work following his right shoulder surgery involving building up to normal duties on full-time hours by late 2015. At the same time he qualified that statement with the words “I tried to avoid any duties that were too difficult”.
9 In his second affidavit, dated 13 December 2018, the plaintiff referred to the evidence in his previous affidavit and deposed in paragraph 7 of that affidavit:
“I went back to my so-called ‘normal duties’ and full-time hours by late 2015, I tried to avoid any duties that were too hard with using my right arm due to my shoulder pain. I generally got a couple of blokes under me to do the hard work and lifting.”
10 The plaintiff went on to describe the work which he was unable to perform by reason of his right shoulder in paragraph 8 of that affidavit.
11 It is asserted that the further description of the work undertaken by the plaintiff in his second affidavit involves recent invention. I do not accept that position. It is not uncommon for witnesses to explain and amplify statements attributed to them in affidavits prepared by their solicitors.
12 In the present case, given the lack of formal education and literacy in the plaintiff it makes it more likely, in my opinion, that a statement in an affidavit may require explanation and that this provides a very innocent explanation for the process which has taken place.
13 Further, if the subject statement were not true, I consider it unlikely that it would have been made given that the additional evidence serves little purpose in the context of my obligation in this case to assess any incapacity in the plaintiff’s right shoulder with which he presents today, and not in 2016 or 2017.
14 It is clear that the plaintiff made a good recovery from his injury and the surgery to his right shoulder.
15 In October 2015 his physiotherapist commented that the plaintiff’s overall recovery was fantastic and that it was his plan to progress the plaintiff to full duties.
16 On 29 October 2015, five months post operatively, Mr Byrne commented that the plaintiff was coping well, he felt strong and that his pain had improved a lot on its preoperative status, as had the movement in his shoulder, and that he considered the plaintiff fit to return to normal duties and would review the situation in the future on an as-needed basis.
17 It is the plaintiff’s evidence that upon returning to work he continued to have symptoms in his right shoulder. That evidence is not supported by any consultation between the plaintiff and any medical practitioner absent a medical certificate dated 12 October 2016 prepared by Mr Byrne in which he certified the plaintiff as having no capacity for employment between 12 October 2016 and 11 November 2016 by reason of his right shoulder cuff tear and acromio-clavicular joint arthritis.
18 The defendant points to a report by Mr Byrne to the plaintiff’s general practitioner, Dr Pope, on the same day which related to his recovery from knee surgery undertaken some six weeks earlier, and asserts that the medical certificate of the same date must have been issued by mistake by Mr Byrne confusing the injury to the plaintiff’s right shoulder with that to his knee.
19 In the absence of evidence by Mr Byrne confirming that fact, given:
· the plaintiff’s evidence that on the occasions that he presented to Mr Byrne for treatment to his right knee he regularly complained of symptoms which were present in his right shoulder;
· the confirmation of that practice by the plaintiff in the report of Dr Pope dated 25 March 2018 in which he comments:
“He was recently reviewed by Mr Byrne (regarding a non-related matter i.e. knee replacement) and Wayne reported to me that Mr Byrne indicated that he was likely to be looking at a shoulder joint replacement presumably due to advancing osteoarthritis within the next few years. There was no comment on this matter by Mr Byrne in his latest letter and I do not have a record of any recent x-rays of the shoulder.”
· the fact that I consider it extraordinarily unlikely that Mr Byrne would confuse the plaintiff’s right knee with his right shoulder; and
· the particularity with which Mr Byrne described in the certificate the condition in the plaintiff’s right shoulder which gave rise to his incapacity for work;
I am satisfied, on the balance of probabilities, that the certificate relates to the incapacity described in the certificate, namely an incapacity to the right shoulder.
20 It is put on behalf of the defendant that Mr Byrne does not record in his reports, any consultation between he and the plaintiff between late 2015 and 2018 with respect to the condition in his right shoulder, and for that reason Mr Byrne must have mistaken the plaintiff’s right shoulder for his left knee when issuing the certificate.
21 It seems to me that the likelihood is much greater that Mr Byrne may have forgotten the issuing of the certificate by reason of a complaint made by the plaintiff as to his right shoulder symptoms in the course of an examination predominantly for the plaintiff’s left knee condition, than the likelihood that Mr Byrne would issue a certificate for the plaintiff’s right shoulder when he meant to provide a certificate for the plaintiff’s right knee.
22 Finally, the evidence is that the plaintiff exacerbated the condition in his shoulder at some stage after returning to his employment when he wrenched his shoulder whilst opening a car door. That may well account for the issuing of the relevant certificate.
23 For all these reasons, I am satisfied that I should take the certificate of Mr Byrne at face value and not draw the inference contended for by the defendant.
24 In any event this issue is largely irrelevant.
25 I am satisfied that the absence of:
· any complaint by the plaintiff of the presence of pain; or
· treatment with respect to his right shoulder following his return to work in late 2015;
would have had no influence upon the opinions expressed by Dr Pope and Mr Byrne that the presentation to them by the plaintiff with increasing symptoms of shoulder pain in 2018 was materially caused by the progression of the condition which was surgically treated in 2015.
26 I make that statement given the uniformity of medical opinion in this instance that the condition with which the plaintiff presented in 2018 to Dr Pope and Mr Byrne and which was investigated by the performance by Mr Byrne of an MRI, had its initiation in a relevant causal sense by the condition and injury which was responsible for the surgery undertaken to the right shoulder in 2015.
27 It is put that the plaintiff, in providing his history as to his incapacity to Dr Scott in 2011 and Dr Sharp in 2016, made no mention of any problems he was having with his shoulder and for that reason the evidence which the plaintiff gave as to his being selective and seeking assistance in the performance of his work duties should not be accepted.
28 Given that these doctors were retained to undertake an examination of, and express an opinion as to, the plaintiff’s right knee condition, and that such an examination would most probably have proceeded upon the basis of the plaintiff providing answers to their enquiries as to the condition which they were engaged to report upon, I am of the opinion that this position is devoid of any merit.
29 Essentially, it is the defendant’s position that the plaintiff is an unreliable and untruthful witness who has sought to exaggerate the severity of the condition with which he presents in his right shoulder for personal gain.
30 In support of that proposition, the defendant points to the evidence given by the plaintiff at the various transcript references provided by the defendant.
31 I do accept the defendant’s position that the plaintiff:
· was inaccurate in describing the totality of his current pain relief as being prescribed by reason of the presence of the condition in his right shoulder; and
· most probably tended to minimize to some extent the extent of the disability with which he continues to suffer in his left knee given the fact that he continues to receive certificates certifying his total incapacity for employment by reason of the condition present in his knee.
32 The defendant also asserts there is a discrepancy between the plaintiff’s evidence as to his incomplete recovery from the surgery undertaken by Mr Byrne to his right shoulder and the certificates provided by Mr Byrne to allow the plaintiff to return to work.
33 I do not accept that position.
34 In his report of 29 October 2015 Mr Byrne described the plaintiff’s pain as having improved a lot on its preoperative status and made similar comments as to the plaintiff’s movement. In my opinion those comments as to the plaintiff’s recovery are not inconsistent with the plaintiff’s evidence as to the way in which he managed his returned to work in the context of his incomplete recovery.
35 I have considered carefully the totality of the plaintiff’s evidence in light the passages in the transcript identified by Mr Middleton QC as raising issues as to the plaintiff’s reliability.
36 I am not satisfied that this evidence, or for that matter any other evidence given by the plaintiff in the course of cross examination, in any way:
· influences the probity of the medical opinions relied upon by the parties as to the current level of the plaintiff’s disability arising by reason of the condition in his right shoulder, or the cause of that condition; or
· persuades me that the plaintiff is not a generally truthful and reliable witness as to that issue.
37 My opinion in that regard is supported by:
· the fact that not one medical practitioner who has opined in this instance has called in to question the plaintiff’s honesty or reliability; and
· the plaintiff’s long history of employment with the defendant in the course of which he had undergone significant surgery to his left knee and surgery to his right shoulder and had never the less returned to work.
38 Given these facts, I am satisfied that the plaintiff presents as a man who is most probably more interested in leading a productive working life than in seeking to maximise his entitlement to compensation and I accept his evidence that he returned to work notwithstanding the presence of some symptoms in his shoulder because:
(i) he wanted to work; and
(ii) he was able to manage the physical duties in his work in the presence of symptoms in his right shoulder by delegating those duties as he required.[1]
[1]The findings I have made as to the accuracy of the medical certificate provided by Mr Byrne in October 2016 also support this position.
The medical evidence
39 Dr Pope, in a report dated 25 March 2018, describes the plaintiff as presenting to his practice (on a date in 2018 which is unclear) with a history of gradually increasing symptoms of ache in the shoulder over the past two years. He opined that the injury sustained by the plaintiff in 2015 would have operated to accelerate and exacerbate pre-existing arthritis in the plaintiff’s shoulder joint and that while the plaintiff continued to have the capacity to perform suitable employment on a full-time basis, he would nevertheless experience gradually increasing restriction in work capacity and social and personal activities over the next 2 to 3 years to the point where he would be unable to continue in his work.
40 In a further report dated 14 December 2018 Dr Pope opined that the plaintiff, at that time, had no capacity for his pre-injury work which involved a lot of lifting, elevation of the shoulders and climbing and crawling around.
41 He described the plaintiff’s capacity for work as being limited to involving nonphysical work such as office work.
42 In my opinion, it is appropriate to interpret that comment by Dr Pope to be referring to the incapacity caused by reason of the condition present in the plaintiff’s right shoulder but to be equally and independently applicable to the condition present in the plaintiff’s knees.
43 In his report of 22 February 2019, Dr Pope made his position as to the incapacity in the plaintiff’s right shoulder clear, commenting:
“Looking at the recent MRI, there is evidence of the prior surgery and some ongoing degenerative change in the subscapularis muscle. The repair is intact and I believe that Mr Byrne will probably elect not to operate further at the moment although I would strongly advise getting Mr Byrne’s opinion on this as this is only my opinion and not that of an orthopaedic surgeon…My prognosis and opinion on Mr Ferguson’s work capacity is unchanged is that he has not (sic) work capacity in relation to the shoulder injury and is unlikely to have significant improvement.”
44 The above position is reinforced by medical certificates authored by Dr Pope relevant to the plaintiff’s incapacity in his right shoulder, which certify his incapacity for employment from 8 October 2018 to date.
45 Whilst the defendant points to what I accept is a clear inconsistency between:
· First, the issuing by Dr Pope of the above medical certificates and the comments made by Dr Pope consistent with the issuing those of those certificates in his report of 22 February 2019; and
· Second, the comments made by Dr Pope in the questionnaire appearing at DCB 132;
the duration of the period during which Dr Pope has provided his medical certificates, and the consistency between those reports and the opinion authored by him in February 2019, in my opinion reinforces the validity of both the certificates and that opinion.
46 Mr Andrew Byrne has provided a number of reports as to the outcome of the surgery he undertook in 2015. The content of those reports is summarised, in the report by Mr Byrne dated 5 July 2018 in which he described:
· the plaintiff as presenting with significant damage to his right shoulder in 2015;
· the performance of a successful right shoulder arthroscopy;
· his review of the plaintiff in October 2015 at which time the plaintiff:
(i) presented with pain which was now a lot better than prior to the surgery and a significant improvement in his movement; and
(ii) reported feeling strong and coping reasonably well.
47 As to the plaintiff’s presentation in 2015, Mr Byrne commented that the plaintiff had minor articular damage to the glenoid of the shoulder which increased the risk that he may develop degenerative arthritis over time but that it was nevertheless highly likely that the plaintiff would be able to continue working.
48 In a report dated 19 March 2019, Mr Byrne commented that he consulted with the plaintiff on 28 November 2018 at which time the plaintiff told him that whilst his shoulder had come good following the arthroscopy, it had worsened of late and that he was using Endone for pain control.[2]
[2]Whilst the defendant points to the fact that Endone was being prescribed to the plaintiff for the control of the plaintiff’s knee pain I accept the plaintiff’s evidence that it was his belief that it was also being prescribed for and was efficacious in managing his shoulder pain. I am further satisfied that the symptoms in the plaintiff’s shoulder were significant enough at that time, notwithstanding plaintiff's use of that medication, to warrant his consulting Mr Byrne.
49 On examination, Mr Byrne confirmed the presence of a painful arc in abduction and forward flexion and presence of evident muscle wasting. He noted focal tenderness in the subacromial region to a significant degree and the presence of some weakness of external rotation.
50 Mr Byrne advised the plaintiff that he should undergo an MRI examination of the shoulder, which was undertaken on 15 December 2018 and which reported the presence of an intact rotator cuff repair with evidence of a small intra delamination tear of subscapularis.
51 Mr Byrne expressed the opinion that:
· surgery was not warranted notwithstanding the presence of the delamination tear;
· at age 62 it was likely that Mr Ferguson would have difficulty returning to his work as a building maintenance worker;
· ongoing issues in the plaintiff’s shoulder would be difficult to manage;
· the fact that the plaintiff was taking significant pain control suggested that pain would be ongoing for him; and
· his impression with respect to ongoing issues was that the plaintiff would be best suited avoiding any heavy labouring activity including overhead work.
52 On 5 November 2018 Dr Graham Doig, a general surgeon, opined that the plaintiff’s right shoulder imposed the following restrictions upon his capacity for work;
“Mr Ferguson is currently restricted with respect to his employment. He has been unable to return to pre-injury status as a result of his dominant right shoulder injury. He will currently have a 5 kgs lifting, pushing, pulling restriction at or below waist height with the dominant right arm. He has difficulty lifting his arm overhead, let alone lifting any weight overhead. He will require breaks from long-distance driving. He will struggle to lift any more than 15 kgs with both arms at or below waist height...
Mr Ferguson is unable to return to his pre-injury employment and he will not do so in the future...
Mr Ferguson does have the capacity to return to suitable employment with the above restrictions in place, however in view of his age education and previous work experience which involved physically demanding work, it may prove difficult for him to return to fruitful employment in the foreseeable future.”
53 In a further report dated 26 March 2019, Dr Doig in no way qualified the above opinion that report being prepared in the absence of any further examination of the plaintiff.
54 On 7 March 2018 Dr Malcolm Brown, an occupational physician, opined that the plaintiff presented with chronic pathology in his right shoulder which affected his capacity to do heavy, physically demanding tasks and to work above shoulder level, there being no prospect for improvement of this condition at the present time.
55 Given the fact that Dr Brown appears to have been undertaking an examination of the plaintiff’s capacity for work, taking into account both his shoulder and right knee, I have difficulty identifying whether any other comments made by Mr Brown as to the plaintiff’s capacity for work related activity are expressed on the basis of the presence of the plaintiff’s combined disability or that of his right shoulder.
56 On 17 December 2018 Dr Robyn Horsley, an occupational physician, expressed the opinion that the plaintiff presented with a significant right shoulder disability and should not undertake work involving:
· Overreaching, pushing, pulling in static postures involving the right shoulder girdle;
· the use of tools with a vibratory component;
· lifting items greater than 5 kg on the right side, except on an occasional basis;
· static postures involving the right shoulder girdle.
57 In her report of 17 December 2018, Dr Horsley opined that the plaintiff, on the basis of his right shoulder disability alone, presented with no capacity for work and was not a realistic candidate for retraining.
58 In a further report dated 19 February 2019 Dr Horsley made a similar comment. Finally, on 26 April 2019 Dr Horsley commented when considering the plaintiff’s capacity for work as a product assembler:
“A pre-placement assessment would determine his level of his physical disability and appropriate restrictions, which would be a significant can barrier to Mr Ferguson being considered the best candidate, in an open and competitive marketplace. This would be compounded by his significant literacy issues and lack of computer skills and no qualifications outside of the manual arena.”
Dr Horsley concluded that report with the following opinion:
“Putting aside Mr Ferguson’s significant bilateral knee disability and just considering his right shoulder disability alone, I do not believe that he is a realistic retraining or redeployment candidate into a less manual role, with barriers including his age 62 years, significant literacy issues, no computer based skills, no qualifications outside of the manual arena and the significant restrictions required to accommodate his right shoulder disability. He has come to the end of his working life.”
59 I am satisfied, taking into account these statements, that Dr Horsley was expressing the opinion that the plaintiff’s presentation to the labour market is such that were the plaintiff to offer his services to a prospective employer the entirety of his personal circumstances as listed by Dr Horsley would be such as would lead any prospective employer to conclude that the plaintiff had nothing to sell.
60 In my opinion, the analysis as to this issue by Dr Horsley is compelling and persuasive given the combination of various employment factors and personal factors identified by Dr Horsley in the concluding paragraph of her report. Whilst Dr Brown also practices as an occupational physician, in so far as there is any discrepancy between the opinion expressed by Dr Horsley and Dr Brown, I prefer the opinion of the former given that Dr Brown expressed his opinion in the absence of attaining a history from the plaintiff as to his level of education, his literacy, or his computer skills.
61 Notwithstanding my finding above, namely that the plaintiff now presents to the labour market with “nothing to sell" by reason of the disability in his right shoulder when combined with his:
· his age;
· poor level of literacy;
· history of employment only in physical work;
· absence of any computer skills;
which is sufficient to entitle the plaintiff to the leave which he seeks in this instance,[3] I will nevertheless for the sake of certainty go on to consider the evidence as to the plaintiff’s capacity for work relied upon by the defendant in its position that the plaintiff retains a capacity for suitable employment.
The effect of the condition with which the plaintiff is presenting in his right shoulder upon his capacity for theoretical suitable employment
[3]See the comments made by Ashley JA and Kaye JA in Richter v Driscoll [2016] VSCA 142 at 93- 97.
62 I turn now to assessing the plaintiff’s ability to undertake four occupations identified in the Recovre report at DCB 119.
63 In undertaking that assessment I am satisfied that, insofar as there is, within the medical opinions to which I have referred above, some disagreement as to the range of activities which the plaintiff is now fit to undertake by reason solely of the condition with which he presents in his right shoulder, the field of specialty within which Dr Horsley practices, in combination with the persuasive and detailed analysis as to this issue as set out in her various reports, places her in the best position to express an opinion upon the plaintiff’s continued capacity for suitable employment.
64 Although the plaintiff’s general practitioner has expressed a difference of opinion to that of Dr Horsley as to the plaintiff’s capacity for a number of the employment activities to which I referred above, given the expertise of Dr Horsley in this area I prefer her evidence to that of the plaintiff’s general practitioner.
65 Further, whilst it is put on behalf of the defendant that the opinion of Mr Byrne is more robust as to the work of which the plaintiff is capable by reason of the condition in his right shoulder, I am satisfied that the detailed analysis of the plaintiff’s capacity for employment undertaken both by Dr Horsley and Dr Doig should be preferred on that issue.
66 For that reason, insofar as there is any disagreement in any of the medical evidence as to this issue, I prefer the evidence of Dr Horsley which is in turn consistent with that of Dr Doig.
67 Whilst it is put on behalf of the defendant that the plaintiff is still employed by the Council and could return to work there in his previous capacity, that submission has no merit for the following reasons:
(i) each of the medical practitioners who have opined in this instance have expressed the view that the condition of the plaintiff’s right shoulder makes him unfit for his previous duties;
(ii) in his affidavit of 13 December 2018 the plaintiff described the activities involved in his employment with the Council which were beyond him by reason of the condition in his right shoulder, and he was not challenged on that issue; and
(iii) the bulk of those activities are recognised as being beyond the plaintiff’s capacity by reason of the condition of his right shoulder, when the totality of the medical evidence to which I have referred is considered.
68 In considering the issue of whether the plaintiff retains the capacity by reason of the injury to his right shoulder to undertake any of the occupations identified in the Recovre report at DCB 119, I am satisfied that the approach that I should focus upon is one which starts with the identification of the term “suitable employment” which is defined by reason of the provisions of Accident Compensation Act 1985 (“The Act”).
69 In the course of their joint reasons in Rosemary Anne Richter v Ian Malcolm Driscoll & Ors[4], Ashley JA and Kaye JA made the following comments as to the definition of the terms “suitable employment” and ”no current work capacity” as employed by the Act:
[4][2016] VSCA 142 at 93- 97.
Twelfth, the construction which we place on the definitions under consideration can be expressed in either of two ways. One is to say that whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances—these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce. Viewing the matter in that way, these observations of Buckley LJ in Cardiff Corporation v Hall, are in point:
The two following propositions are of course distinct: First, that owing to incapacity for work arising from the accident the condition of the workman is such that his labour is not saleable or is saleable only at a reduced figure, and, secondly, that his labour is saleable or is saleable at the same figure as before the accident but that he has failed to find a purchaser. The former and not the latter is the relevant proposition in the question of compensation. ...
It is difficult, no doubt, to draw the line. Physical incapacity is not necessarily alone to be considered. In some employments personal disfigurement may preclude employment when physical capacity is just as good as before. In such case personal disfigurement is an element to be taken into consideration. The circumstances under which labour can command employment in the market being all taken into consideration, the question is whether the accident has produced in the workman some incapacity for work personal to himself which prevents his obtaining employment.
The other, closely allied, way in which the matter may be put is shown in the passage of the judgment of Fletcher Moulton LJ in the same case, where his Lordship referred to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’
Neither of those ways of looking at the matter is at odds with the settled law that an employer does not guarantee the state of the labour market. Nor do they mean that inability to work in employment covers the situation in which—addressing the reality of what may occur—an employer will not take on a worker only because the latter has been off-work and in receipt of compensation payments. Rather, they focus upon an assessment of the inhibitions which exist upon the worker’s ability to work in employment. ‘Employment’ is a relationship in which a prospective employee must have something—a capacity to work in employment—to sell. A prospective employer will not buy if the entirety of the circumstances personal to the worker, as outlined in these reasons, lead the employer to conclude that the worker has nothing to sell.
70 Further, as Osborn JA observed in the same case:[5]
Ability to return to work in employment is not simply dependent upon capacity to physically undertake particular tasks. The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated. The object of containment of cost is not intended to prevent this from being achieved.
A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.
This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.
In my view, the definition of suitable employment does not change the governing nature of these concepts. Suitable employment means employment in work for which the worker is currently suited. The Act then provides for factors which must be considered in assessing whether the worker is able to return to employment in work for which the worker is currently suited. The factors listed in paragraphs (a)(i) to (iv) go to characteristics of the worker bearing on his or her employability and are not limited to physical capacities. The factors listed in paragraphs (a)(v) and (vi) go to factors related to processes intended to facilitate a return to work either by way of work plans or rehabilitation services. The significance of return to work is emphasized in the objects of the Act. The outcome of these processes may or may not have been successful, but, for present purposes, these factors are relevant in that they go to the capacity of the worker to return to work in employment in the broad sense that I have sought to explain.
[5][2016] VSCA 142 at 143-145.
71 On the basis of the statements made by the court in Richter, I am satisfied that I should have regard to both to the plaintiff’s personal characteristics and also the continuing effect of the incapacity with which he presents in his right shoulder in assessing the plaintiff’s capacity to undertake the work involved in the occupations identified in the Recovre report at DCB 119.
72 Specifically in this instance, I am satisfied that this assessment must be undertaken on the basis of the plaintiff’s current personal characteristics, including the comorbidities which arise independently of the condition with which he presents in his right shoulder which may be listed as follows:
· the plaintiff has been assessed as having poor reading, writing and spelling skills. The extent of the plaintiff’s disability in this regard was demonstrated in the course of his cross-examination during which the plaintiff was unable to read simple words or understand their meaning;
· the plaintiff was educated to approximately 14 years of age and has worked in physical type work most of his life;
· the plaintiff has no computer skills and no experience in using a computer. Given the plaintiff’s age and his lack of education, I am satisfied it is unlikely that he will develop computer skills;
· the plaintiff has undergone two knee replacements.
73 In her report dated 17 December 2018, Dr Horsley describes the plaintiff as presenting with persistent left knee disability such that he has a walking tolerance limited to 10 to 15 minutes, a static standing tolerance involving a few minutes before he has to change legs and a dynamic standing tolerance of 10 to 15 minutes.
74 In his report of 7 March 2018, Dr Brown describes the plaintiff’s standing tolerance as being limited to one hour, commenting that if he was to return to full-time employment he would “need to have some of his shift seated”.
75 Although in the course of his evidence the plaintiff said that the condition in his knee had significantly improved, in my opinion, that evidence needs to be viewed in the context of the fact that the plaintiff is not working and that in reality his tolerance for static standing or dynamic standing on a continued basis as would be required in full-time employment is not currently being put to the test.
76 Further, the severity of the condition with which the plaintiff presents in his left knee further is demonstrated by the fact that he continues to be certified as unfit for work by reason of that condition.
77 In including within the list of the plaintiff’s comorbidities the condition with which he presents in his lower limbs, I have taken into account the submissions made on behalf of both the plaintiff and defendant upon this issue.
78 I do not accept the defendant’s submissions upon this issue as being an accurate analysis of the law and I reject those submissions.
79 It is clear that the task required of me is to firstly isolate, and then assess, the impact which the impairment with which the plaintiff presents in his right shoulder has upon his capacity for suitable employment as at the present time.
80 In my opinion that task involves the necessity to make separate and discrete findings which can be described sequentially as follows:
(i) the first involves the fixing of the effect of the discrete incapacity with which the plaintiff presents by reason of the compensable condition in his right shoulder. That task must, in turn, be undertaken by reference only to the consequences caused by that injury;
(ii) the second involves the identification of occupations which are appropriately characterised as suitable for the plaintiff within the definition of “suitable employment” as employed by the Act. In my opinion, that task is to be undertaken by applying to the definition of suitable employment in Section 3 of the Act the methodology of analysis described by the Court of Appeal in Richter;
(iii) the third involves an analysis of the plaintiff’s capacity (or for that matter incapacity) by reason of the discrete impairment with which he presents in his right shoulder, to perform the various duties required in any activity which might arguably constitute suitable employment for him at the present time.
81 I am satisfied that the statements by the Court of Appeal in Richter require me to take into account the plaintiff’s present comorbidities when identifying which of the mooted employment activities relied upon by the parties as giving rise to suitable employment for the plaintiff as at the date of my determination, do so.
82 In my opinion, it makes no sense to suggest that an analysis of the plaintiff’s capacity for suitable employment by reason of the incapacity with which he presents in his right shoulder as at the date of this hearing should, at the same time, ignore the existence of a comorbidity which renders a particular occupation patently unsuitable for the plaintiff as at the date of this hearing.
83 Given that my analysis of the law relevant to the meaning of suitable employment is contested by the parties, for the purpose of avoiding any doubt in this instance, I will adopt the following approach in making my findings in this instance:
(i) first, examining each of the mooted employment activities taking into account all of the plaintiff’s comorbidities to which I referred above, including the condition with which he presents in his knees, to determine whether any of those activities represent suitable employment for the plaintiff;
(ii) second, notwithstanding any finding that one or other of those activities did not represent suitable employment for the plaintiff on the basis of the analysis which I have referred immediately above, I will make findings as to the plaintiff’s physical capacity to be employed in each of the occupations relied upon by the defendant in the Recovre report at DCB 119 onwards, by reason solely of the incapacity with which he presents in his right shoulder. In so doing, I will:
· take into account only the issues specifically identified by the definition of suitable employment as it appears in section 3 of the Act; and
· exclude the effect of any comorbidity with which the plaintiff presents by reason of the condition in his lower limbs.
84 I consider it appropriate in this instance to adopt the above approach to my analysis by reason of the fact that, for the reasons set out below, each of the alternate analytical approaches results in an outcome in which the plaintiff has established his entitlement to the leave sought in this instance.
Are the various jobs identified in the Recovre report suitable employment for the plaintiff as defined by the provisions of the Act taking into account the totality of his comorbidities including those in his lower limbs?
Sales Assistant (i)
I am satisfied that this work could not be considered to be suitable employment for the plaintiff given that the work is described as predominantly standing and working at sales counters with the occasional ability to sit, and involving some bending, squatting or crouching. In my opinion, each of those activities combined with the presence of the plaintiff’s comorbidities in his knees operate to exclude this work from being suitable employment for the plaintiff.
Forklift driver(ii)
I am satisfied that this work could not be considered as being suitable employment for the plaintiff given the repetitive movements required of his legs and in particular his knees in undertaking this task and climbing onto and off the vehicle. In my opinion, those activities combined with the presence the plaintiff’s comorbidities in his knees operate to exclude this work from being suitable employment for the plaintiff.
Packer(iii)
I am satisfied that this work could not be considered as being suitable employment for the plaintiff when account is taken of the comorbidity with which the plaintiff presents in his lower limbs and the fact that the work involves constant static standing. In my opinion, that activity operates to exclude this work from being suitable employment for the plaintiff
Delivery driver(iv)
I am satisfied that this work could not be considered as being suitable employment for the plaintiff when account is taken of the comorbidity with which the plaintiff presents in his lower limbs and the fact that the work involves the necessity to frequently walk or run when delivering parcels and goods. In my opinion those activities combined with the presence the plaintiff’s comorbidities in his knees operate to exclude this work from being suitable employment for the plaintiff.
Alternative Analysis
Assuming that each of the identified employment activities are not excluded as suitable employment for the plaintiff by reason of the comorbidity with which he presents in his knees, and ignoring any influence of that comorbidity, does the impairment of function in the plaintiff’s right shoulder alone preclude him from undertaking the tasks required in each of the mooted occupations ?[6]
[6]In undertaking this analysis, I do give appropriate weight to the factors identified in section 3 of the Act when defining suitable employment.
Sales Assistant (i)
The duties of the sales assistant/salesperson as described at DCB 119 and DCB 121 involve:
The employment of memory skills involving recording and calculating skills.The plaintiff has no experience in this work and his lack of literacy in my opinion would be so likely to undermine his recording skills as to render this work unsuitable for the plaintiff on that basis.
Further, I am satisfied of the likelihood, even in the absence of specific evidence as to this issue that the plaintiff’s age and work history would operate so that he would present to a prospective employer as a candidate for employment who had “nothing to sell.” That finding is in turn supported by the opinion expressed by Dr Horsley at PCB 107 that the plaintiff’s age; his presentation as being an unrealistic candidate for retraining or redeployment; his significant literacy issues; his absence of computer skills; his lack of qualifications outside the manual arena combine with the significant restrictions present in his right shoulder so as to cause his working life to come to an end.
Given the absence of any expert evidence other than that of Dr Horsley on this issue, I accept that evidence as excluding this occupation as being suitable employment for the plaintiff.
Forklift driver(ii)
This work involves frequent repetitive arm movements which are described as stretching down and across to operate controls and frequent repetitive arm, hand and leg/foot movements involving pushing and pulling to operate controls, leg and foot movements and pushing and pulling together with constant driving. It also involves accessing the vehicle via steps[7] and the use of hand tools or equipment to undertake machine maintenance. In my opinion, this form of employment is excluded by the condition in the plaintiff’s right shoulder.
[7]Although the precise movements involved in that activity are not described, this must involve the use of the plaintiff’s upper limbs to support him as he ascends and descends the vehicle.
Further, Dr Horsley specifically excludes this work as being suitable employment for the plaintiff by reason of the condition in his right shoulder alone. Insofar as the work involves constant driving, this occupation is also excluded by Dr Doig.
Packer(iii)
This work is described as involving constant standing and frequent stretching across, lifting, and carrying when moving packed containers; bringing product to be packed to the packing area; constantly requires repetitive hand and arm movements. I interpret that work to involve repeated stretching with arms and shoulders.
In my opinion, the analysis undertaken by Dr Horsley relevant to the activities involved in working as a product assembler are most probably apposite to this form of employment and operate to preclude it as being suitable for the plaintiff by reason of the condition in his right shoulder alone. The absence by the assessor as to any mention of the weights involved raises a further issue as to whether this occupation could in theory be within the plaintiff’s capabilities having regard to the opinion expressed by Dr Doig.
Delivery driver(iv)
This work involves frequent lifting and carrying of loads which are unspecified, and loading and unloading activities. It further involves the completion of delivery documentation and organisational skills including record-keeping.
In my opinion, the performance of this work cannot be guaranteed to exclude the restrictions in movement and activity identified by each of the medical practitioners, including Dr Horsley, who have opined are now excluded to the plaintiff by reason of the condition present is right shoulder. In particular, in my opinion, the activity of loading and unloading items from a delivery van could not be said to be an activity which could be guaranteed not to require the lifting or handling of items of varying weights and dimensions above the waist, or for that matter shoulder level.
For that reason alone, I am satisfied that this activity is precluded as being suitable employment for the plaintiff by reason of the presence of the condition in his right shoulder. That finding is further reinforced by the opinion expressed by Dr Doig.
Further, I rely on and repeat my previous comments as to the opinion expressed by Dr Horsley at PCB 107 to which I referred above, which has equal application in excluding this field of employment.
85 For the reasons set out above I am satisfied that the plaintiff, by reason of his right shoulder disability alone, has lost his capacity for suitable employment as that term is employed by the Act and accordingly, that he is entitled to the leave which is sought in this instance.
86 If necessary I will hear the parties as to the form of the order and as to costs, otherwise I would ask the parties to prepare orders by consent as to these issues.
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