Fikaris v Foster's Wine Estates Limited
[2013] VCC 19
•1 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-01952
| TODD FIKARIS | Plaintiff |
| v | |
| FOSTER’S WINE ESTATES LIMITED | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 January 2013 | |
DATE OF JUDGMENT: | 1 February 2013 | |
CASE MAY BE CITED AS: | Fikaris v Foster’s Wine Estates Limited & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 19 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to the right shoulder – pain and suffering – loss of earning capacity
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Pisano v Precision Solid Plasterers Pty Ltd [2012] VSCA 226.
JUDGMENT – Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Arnold Thomas & Becker |
| For the Defendants | Mr D Myers | Minter Ellison |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant in October 2005.
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the right shoulder.
5 The plaintiff relied upon three affidavits and gave viva voce evidence. He was cross examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
6 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
7 The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
13 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
14 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
Background
16 The plaintiff was born in 1979. He is now aged thirty three. He is a disability support pensioner and is the carer of his two-year old son.
17 The plaintiff completed Year 9 and last attended school towards the end of Year 10. In 1999, he completed a TAFE course in Retail Management whilst working at a petrol station.
18 After suffering injury, the plaintiff completed a Certificate 1 in Information Technology – a basic computer course, following which he described he could find his way around the internet “pretty good but nothing further.”[3]
[3]Transcript (“T”) 14
The Plaintiff’s Employment
19 The plaintiff commenced employment with the first defendant in September 2004, having been offered a permanent part time position as a warehouse hand Grade 2 by Beringer Blass Wine Estates. He worked as a forklift driver and picker/packer – duties that involved a lot of manual lifting and moving of boxes of wine.
20 In or about October 2005 whilst at work with the first defendant, the plaintiff dislocated his right shoulder on four occasions.
21 The plaintiff first hurt his right shoulder when he was getting into a forklift, pulling himself into the cabin with his right arm. Whilst doing so, he felt a strange sensation in his shoulder which he thought was a cramp, but now believes was a partial dislocation (“the first incident”). His shoulder seemed to move out of place and go back into place straight away and the cramp-like feeling went away very quickly.
22 The plaintiff did not report the first incident and did not recognise it as an injury. He had not previously dislocated his right shoulder.
23 Later that month, the plaintiff was carrying a box of a dozen bottles of wine and putting it into a partly laden pallet on his forklift. Whilst doing so, he felt his right shoulder move out of joint and he felt extreme pain (“the second incident”). The plaintiff popped his shoulder back into position, after which there was an immediate reduction of pain and then some aching for about two hours. The second incident was reported.
24 A third incident happened in a very similar fashion to the second. The plaintiff was lifting a carton of a dozen bottles of wine to put it onto a partially laden pallet on his forklift when he experienced similar pain to the second incident (“the third incident”). He then again relocated his shoulder. The third incident was reported.
25 On 27 October 2005 (“the last date”), the plaintiff was throwing a sheet of plastic over the top of a laden pallet which was on the shrink wrap machine to be wrapped. As he did so, his right shoulder dislocated (“the fourth incident”). He was in extreme pain and his right arm was just hanging by his side and his shoulder was completely dislocated.
26 The plaintiff has not worked for the first defendant since the last date. He took a redundancy package in the year after he ceased that employment.
27 The plaintiff made a claim for compensation which was accepted by the defendants. Weekly payments were made and the plaintiff’s medical treatment was paid for by the defendants. A s98C claim was also accepted by the defendants.
The Plaintiff’s Medical Treatment
28 Following the third or fourth incident, the plaintiff attended his general practitioner, Dr Buckley, who gave him three or four days off work.
29 Following the fourth incident, the plaintiff was driven to the Mildura Base Hospital (“the Hospital”) , where he was treated in the Emergency Department.
30 X‑rays of 28 October 2005 showed the plaintiff’s right shoulder was enlocated with some avulsion of the anteroinferior glenoid rim. A CT scan in November 2005 subsequently confirmed the presence of this lesion.
31 In November 2005, the plaintiff came under the care of orthopaedic surgeon, Mr Gardiner, at the Hospital.
32 Mr Gardiner sought permission to perform surgery, which was arranged for 11 January 2006; however, there was a further dislocation in the plaintiff’s sleep on 24 January 2006, which resulted in an avulsion fracture of the greater tuberosity of the humerus.
33 The plaintiff presented on 26 January 2006 at the Hospital’s Emergency Department, alleging sleeping on the couch and feeling his right shoulder slipping out. X‑ray findings then confirmed right humeral head dislocation into subcoracoid position and the fracture of the proximal humerus, greater tuberosity.
34 The plaintiff then underwent a reduction under sedation
35 Mr Gardiner operated on the plaintiff’s right shoulder on 8 February 2006 (“the first operation”). Mr Gardiner described that procedure involved an anterior deltoid femoral incision in the shoulder, exposing the anterior surface of the humerus in which there was a disruption of the rotator cuff with a comminuted fracture avulsion of the greater tuberosity of the humerus.
36 Mr Gardiner internally fixed the fracture with a screw and repaired the tear in the rotator cuff. The anterior capsule was attenuated and not specifically repairable. Mr Gardiner therefore refrained from reconstructing the anterior capsule for fear of causing more adhesions and greater stiffness.
37 The month after the first operation, Mr Gardiner thought the plaintiff was making a slow recovery from the combination of chronic recurrent instability and the more recent acute fracture dislocation. As of June 2006, he thought the plaintiff continued to progress with his significantly injured right shoulder, and noted the recent fracture of the proximal humerus had complicated the situation, meaning the result of surgery was a little bit unpredictable. He suggested continuing physiotherapy.
38 In September 2006, Mr Gardiner thought the plaintiff should be retrained in the future in a sedentary occupation for activities which did not require the vigorous use of his right upper limb.
39 Mr Gardiner considered the plaintiff had a permanent impairment due to the significant injury to the anterior aspect of his right shoulder which would never be normal. Further, he thought the plaintiff would have a permanent tendency for anterior dislocation of the right shoulder over and above had he never dislocated it in the first place.
40 On 5 October 2006, Mr Gardiner noted the plaintiff was doing a computer course to ease retraining. He confirmed the plaintiff would not be fit for the vigorous physical work he previously performed.
41 As of February 2007, Mr Gardiner thought the plaintiff was progressing satisfactorily with regard to stabilisation of his right shoulder, and he noted the plaintiff had no further instability, although there was restricted abduction. Mr Gardiner advised he would seek an update x‑ray and request permission to remove the screws. This procedure occurred on 18 April 2007 (“the second operation”).
42 In May 2007, Mr Gardiner reported the plaintiff attended at his clinic seeming drowsy with slightly slurred speech and had recent needle marks in both elbows and noted the plaintiff was involved in a Methadone program.
43 Mr Gardiner did not believe that the plaintiff’s physical disability was a significant reason for him to remain on WorkCover, and noted there were other social issues preventing the plaintiff from returning to a reasonable occupation. He certified the plaintiff to return to duties on 16 May 2007, and noted he hoped the plaintiff was able to successfully rehabilitate himself from his apparent substance dependence.
44 Following his shoulder injury, the plaintiff continued to see Dr Buckley. In September 2007, Dr Buckley noted the plaintiff looked and felt better, but a relapse was recorded in February the following year and he was charged with possession of morphine tablets in April that year. Dr Buckley recorded in October 2009 that the plaintiff had interrupted sleep and night sweats coming off Methadone.
45 By letter dated 1 February 2008, Dr Buckley advised the plaintiff’s solicitors that the plaintiff had been attending his Merbein clinic since September 2007 and advised he was looking for new employment.
46 When Dr Buckley saw the plaintiff in January 2008, the plaintiff told him he was currently working on his family’s fruit property helping with the harvest, and they discussed caution to avoid re‑injury of the shoulder. Dr Buckley advised he could not certify that the plaintiff had a total and permanent disability.
47 Dr Buckley noted the plaintiff requested Methadone to take away in the later half of 2008 whilst he was away from home working on a pipeline. Whilst the plaintiff requested Methadone to take away whilst working in the Tristate job, he did not work on the pipeline.
48 Dr Buckley most recently reported in January 2013, confirming he still treated the plaintiff. Whilst he noted Methadone had pain relieving qualities, Dr Buckley emphasised it was prescribed solely for the plaintiff’s addiction.
49 The plaintiff also had treatment from another general practitioner, Dr Meyer, in a different clinic in Mildura. Dr Meyer prescribed painkilling medication, including OxyContin, in late 2005 to March 2006, to which the plaintiff became addicted. He also prescribed Panadeine Forte in May 2006.
50 The plaintiff had physiotherapy from Mr Willman in Mildura between February 2006 and mid 2007. Mr Willman’s treatment notes indicated there were times when the plaintiff was feeling much better with increased movement. The plaintiff then started to look for work with transport companies and in the wine industry but was unsuccessful in obtaining employment.
51 The plaintiff was seen by Mr Holland, orthopaedic surgeon, on referral from Dr Shetty in July 2012, after having asked his solicitor to arrange an appointment.
52 On examination at that time, Mr Holland found there was no sign of ligamentous laxity. There was scarring, and the subacromial bursa was mildly tender. Forward elevation was to 90 degrees, and external rotation 60 degrees. Internal rotation was to the plaintiff’s back pocket, and there was no evidence of impingement. There was some mild weakness of the supraspinatus and infraspinatus. Subscapularis and biceps had normal power. There was grade 1 interior laxity only.
53 Mr Holland’s working diagnosis was then post-traumatic osteoarthritis, though that was not confirmed with imaging at that time. He thought that condition was likely to affect the repetitive use of the plaintiff’s right arm and using his head and arm in an overhead position. It could also have an effect on repetitive lifting and would interfere with the plaintiff climbing into a forklift, and from using his arm overhead.
54 Mr Holland thought the restricted range of shoulder motion would affect most activities of daily living, including the plaintiff reaching above his head and away from his body.
55 There was no further review, as the plaintiff cancelled his appointment in November. Mr Holland noted the purpose of that review was for him to have some shoulder x‑rays to confirm the working diagnosis of post-traumatic osteoarthritis. If that working diagnosis was correct, Mr Holland thought perhaps an arthroscopic debridement would be of benefit, and ultimately if the diagnosis was correct, the plaintiff may require a shoulder replacement or an arthrodesis.
Medico-Legal Examinations
56 Mr Paul Kierce, orthopaedic surgeon, examined the plaintiff in October 2012. He noted the plaintiff was then working in traffic control as a casual, fifteen to sixty hours a week. In his viva voce evidence, the plaintiff explained he may have worked these hours in a fortnight, not in a week.
57 On examination, Mr Kierce found definite wasting of the right shoulder girdle muscles. The plaintiff was tender anteriorly over the bicipital groove, but most tenderness was in the anterior aspect of the right shoulder’s rotator cuff. There was no crepitus, and the impingement test was negative. On testing, the joint did not subluxate and did not appear to make the plaintiff apprehensive.
58 Having measured the plaintiff’s level of shoulder movement, Mr Kierce concluded there was a significant restriction.
59 Mr Kierce reported that the plaintiff did not bring any medical imaging with him, but noted the contents of previous reports, and in particular the final pre-operative report.
60 Mr Kierce diagnosed recurrent dislocation of the right shoulder requiring operative stabilisation, noting the latest dislocation had been associated with a fracture of the right greater tuberosity which required internal fixation.
61 Mr Kierce thought the plaintiff was suffering pain as a result of work-related dislocations. He considered there would not be any restriction in relation to work involving prolonged sitting, standing, walking, driving and/or stooping, repetitive bending and/or twisting. He thought however the plaintiff would always have some restriction on lifting with his right arm, and should not lift more than five kilograms nor use his right arm above shoulder height for repetitive activity, avoiding also holding his arm out in front of him with any weight, certainly not more than five kilograms.
62 Mr Kierce considered the plaintiff was incapacitated for his pre-injury employment and no longer suited for manual work; however, he thought the plaintiff should be able to work in a sedentary occupation which did not put stress on his right arm, and given his ability to use a computer, it may have been worthwhile the plaintiff undertaking re-training to give himself a better chance of being re‑employed in some field. He considered the plaintiff would be capable of undertaking suitable employment full time if it was available, not putting stress on his right arm, if available. Mr Kierce thought these restrictions were permanent.
63 In Mr Kierce’s view, the plaintiff’s right shoulder injury would prevent the plaintiff from returning to taekwondo and he would not be able to return to playing squash, and it would be risky for him to return to water skiing. He thought the plaintiff had to be careful in handling his two-year old child, and carry him mostly in his left arm.
64 Mr Kierce reviewed the plain x‑rays of 19 December 2012, in which he noted the right glenohumeral joint was enlocated. He noted there was no sign of degenerative arthritis in either the glenohumeral joint or the acromioclavicular joint.
65 In his opinion, therefore, the plaintiff would now appear to have a stable right glenohumeral joint, but he had very significant limitation of movement, and significant wasting of right shoulder girdle muscles.
66 As it was not seven years since surgery, Mr Kierce thought it unlikely there was going to be any significant change in the plaintiff’s condition, which was now stable. He thought the plaintiff was certainly unfit for manual work and would need permanent restrictions in the type of work he did in the future.
67 Mr Kudelka, orthopaedic surgeon, examined the plaintiff in January 2012.
68 On examination, movements of the plaintiff’s right shoulder were restricted.
69 Mr Kudelka had available the 19 January 2012 x-ray which showed moderate degenerative changes in the glenohumeral joint but no abnormal soft tissue classification.
70 In terms of diagnosis, Mr Kudelka thought the plaintiff had suffered a recurrent dislocation of the right shoulder associated with his work, which resulted in partial permanent impairment, which would interfere with lifting and repetitive use of the right arm, stretching and reaching with the right arm of approximately fifteen per cent, as a result of his work, and caused him to be incapacitated for his pre-injury employment.
71 Mr Kudelka thought the plaintiff was however suited for alternative work not involving repetitive and forceful movements of the right arm, particularly at or above shoulder level. He noted the plaintiff’s work history was one of physically demanding work, and that the plaintiff did not appear to have any high level of education in office or clerical work; however, he noted the plaintiff was only thirty two, obviously had supporting parents, and should be able to undertake further study and obtain appropriate qualifications in the future.
72 Mr Kudelka thought the plaintiff was capable of undertaking modified or alternative employment, avoiding mechanical strains on his right shoulder. This may involve vocational guidance, re-training, further education, and lead to an occupation which may commence part time and then full time.
73 Mr Kudelka thought the plaintiff had a future prognosis of restricted function of the right shoulder, and that would interfere with his ability to carry out family activities, noting he had an eighteen-month old son, and would prevent him resuming his recreational activity of martial arts.
74 Mr Kudelka re‑examined the plaintiff in August 2012. Restriction of shoulder movement was again found on examination.
75 Mr Kudelka noted that there had been two attempted repair procedures but the plaintiff’s shoulder had not recovered to any significant degree, with pain, weakness, and restricted shoulder movement persisting.
76 Mr Kudelka thought the plaintiff had degenerative changes in the right shoulder which followed post-traumatic dislocations and had been incompletely relieved by physiotherapy and two operations. He considered that situation was work related, and caused the plaintiff to be incapacitated for his pre-injury work.
77 Mr Kudelka thought the plaintiff was only suited to physically restricted activities with respect to his right arm, and future employment would have to accommodate this restricted use. He considered clerical or office work only, which the plaintiff hoped to continue in future years, would be appropriate, but that would require re-training and further instruction courses. Once that qualification was achieved, Mr Kudelka thought the plaintiff would be capable of undertaking suitable employment in the accounting or office area. Whilst that would probably commence part time, Mr Kudelka thought it should enable the plaintiff in the future to remain in full-time employment.
78 Mr Kudelka considered the plaintiff was currently incapacitated for physical work, such as in a winery, which was associated with his injury, and that was a permanent situation. He thought the limited function due to pain and weakness would have a deleterious effect on the plaintiff’s social, employment and recreational activities.
79 Dr Middleton, occupational health and rehabilitation consultant, examined the plaintiff initially in November 2011, and more recently in October 2012.
80 On initial examination, Dr Middleton noted there was some loss of muscle bulk involving the right deltoid, and the right shoulder was depressed compared to the left. On both examinations there was restriction of shoulder movement and tenderness in the shoulder area. There was a loss of grip strength in the right hand of fifty per cent on the first examination and a forty per cent loss on the second.
81 Dr Middleton noted the x‑ray of 19 January 2012 which showed moderate degenerative changes in the glenohumeral joint and a normal acromioclavicular joint. He noted both the joints were enlocated. There was no acute bony lesion or fracture identified, and no evidence of abnormal soft tissue calcification.
82 In terms of diagnosis, Dr Middleton noted there was a fracture dislocation of the right glenohumeral joint, rendering the joint unstable, and followed by recurrent dislocations partially repaired by surgery, resulting in the development of traumatic osteoarthritis of the right glenohumeral joint. The recovery had been incomplete.
83 Dr Middleton thought the physical injury alone precluded the plaintiff from undertaking repetitive use of the right arm, stretching and reaching involving the right arm, on an ongoing basis.
84 In regards to lifting, Dr Middleton thought the plaintiff should limit the weight of objects to be lifted to two and a half kilograms on an occasional basis, and one and a half kilograms on an intermittent basis, avoiding entirely repetitive use. He thought activities with the right shoulder needed to be self paced, and rest breaks provided.
85 On a physical basis solely, Dr Middleton thought the plaintiff no longer had the capacity for his pre-injury work, modified duties on a full time or part time basis. In his view, applying such restrictions, the plaintiff would only be able to manage part time work, being two to four hours in any one shift, three to four non consecutive days a week. He noted the plaintiff no longer had a reliable physical capacity, and any employment would need to accommodate the fact that his attendance at work was likely to be unreliable.
86 Dr Middleton thought the plaintiff was currently unfit for any employment on the basis of his age, education, skills, work experience and place of residence. He thought the plaintiff’s capacity for employment was theoretical. He indicated that at most the plaintiff could attend work about fifteen hours in any one week. In real terms, unless and until the plaintiff was adequately retrained, Dr Middleton considered the plaintiff would remain unemployable, and this situation was permanent.
87 Further, on a physical basis alone, Dr Middleton considered the injury had a serious impact on the plaintiff’s life outside work, and he was limited in his role as a father and primary caregiver, and he was excluded from recreational or sporting activities that required even just a reasonable level of fitness, noting it involved, in particular, his right dominant shoulder, arm and hand.
88 Mr Michael Dooley, orthopaedic surgeon, saw the plaintiff in January 2012.
89 On examination, there was some generalised tenderness of the right shoulder girdle. There was a positive apprehension test for potential anterior instability of the shoulder and restriction of shoulder movement.
90 Mr Dooley noted the 2012 x‑ray again showed an enlocated shoulder joint with a large Hill-Sachs lesion. Further, on the axillary view there may be some narrowing of the glenohumeral joint.
91 Mr Dooley thought the plaintiff’s condition was difficult to analyse, noting he had recurrent anterior instability of his right shoulder. He noted the plaintiff’s drug history, commenting that certainly injuries could occur to the shoulder when under the influence of drugs or during withdrawal. Whilst it was well known that a patient with a history of recurrent dislocations may experience a dislocation whilst asleep, Mr Dooley considered it was very unusual for such a dislocation to be associated with fracturing of the proximal humerus.
92 Overall, Mr Dooley had difficulty correlating the overall clinical situation, but noted the diagnosis of recurrent anterior instability of the shoulder was not in doubt. Questions remained, however, about aetiology, past history, subsequent mechanisms of dislocations, et cetera.
93 Further, Mr Dooley found it very difficult to correlate all of the plaintiff’s ongoing symptoms post-operatively with the organic condition only, noting that the constancy and intensity of his ongoing pain and his described disability were greater than one would expect to see for his condition. Mr Dooley noted, given the surgeon’s comments, it was possible there was still symptomatic instability of the shoulder, and in that regard it would be sensible for the plaintiff to consult another orthopaedic surgeon.
94 Mr Dooley did not expect deterioration, and believed the plaintiff’s current condition could improve in terms of pain and function.
95 Mr Dooley considered the plaintiff would not be able to do all of his pre-injury duties, but was capable of carrying out at least light physical work and clerical duties, and he would need to avoid a lot of activity at and above shoulder level. He believed the plaintiff would have a physical capacity to carry out routine maintenance, but his ability to replace gas tanks would depend on their weight and the posture required. He thought the plaintiff may benefit from further specialist opinion.
96 On re‑examination in November 2012, there was some generalised wasting of the shoulder girdle musculature. There was restriction of shoulder movements. There was a positive apprehension test for potential anterior instability of the shoulder, and there was no apprehension when stressing the joint inferiorly or posteriorly.
97 Mr Dooley concluded, essentially, this diagnosis and clinical impression and opinion remained as previously outlined, with the plaintiff having had recurrent anterior instability of the right glenohumeral joint. From an orthopaedic view, he would expect the plaintiff to note some occasional right shoulder pain and have a reasonable range of active movement but still have some instability tendencies in the shoulder. He thought the plaintiff was at some risk of developing post-traumatic osteoarthritis of the shoulder joint in time.
98 From an orthopaedic view only, Mr Dooley thought the plaintiff had the physical capacity to carry out light physical work and clerical duties. The plaintiff would not be able to carry out very heavy physical work or work that involved a lot of activity at or above shoulder level.
99 Mr Dooley considered a return to work would need to be on a graduated basis, but from an orthopaedic point of view, Mr Dooley thought the plaintiff would have the capacity to increase his hours to full time. He considered the plaintiff would have the physical capacity to work as a traffic controller, real estate trainee, console operator and retail sales assistant. The plaintiff’s ability to work in merchandising and forklift driving would depend on the amount of physical work involved and posturing of the right upper limb.
100 Dr Entwisle, psychiatrist, examined the plaintiff in November 2012. He had a history that the plaintiff had become addicted to OxyContin before being placed on Methadone. He also diagnosed an Adjustment Disorder with Depressed Mood and also a history of substance abuse.
101 Dr Entwisle thought the plaintiff’s prognosis for improvement related as much to psychosocial factors as it did to issues involving his shoulder. He thought the plaintiff’s current presentation related to a combination of non-work and work-related matters. He thought the plaintiff required management and some counselling in respect to unresolved issues in regard to his relationship history. The plaintiff indicated he was well aware of the possible connection between those matters and the substance addiction, and once he dealt with those matters, Dr Entwisle believed the plaintiff would manage better with his shoulder.
102 Dr Entwisle thought the plaintiff had a capacity for pre-injury duties and/or alternative duties and would have the capacity to work in retail sales, as a console operator, real estate trainee, traffic controller, merchandiser and forklift driver. He had a capacity to perform some light duties, noting that the plaintiff had advised his focus was now very much on his son.
Summary of the plaintiff’s gross earnings from personal exertion
Year ending 30 June
Gross income
2001
$4,688
2002
$2,152
2004
$7,403
2005
$40,626
2006
$8,646
2007
Nil
2008
$2,356
Vocational Evidence
103 Margaret Leitch, occupational therapist, of Evidex, provided a vocational assessment on 19 December 2012 at the request of the plaintiff’s solicitors.
104 Leaving aside the psychological consequences of the right shoulder injury, she concluded, on a permanent basis, there was no unrestricted recognised occupation in the open labour market for which the plaintiff was likely to qualify that represented suitable employment.
105 Ms Leitch provided details of the average gross earnings details for a forklift driver – $966, order picker – $863, service-station console operator – $664, fruit packer – $703, sales assistant – $845, bar attendant – $801, and road traffic controller – not available.
106 Ms Leitch carried out clerical skills testing in which the plaintiff scored lower than 99 per cent of the norm of a group of applicants seeking employment as administrative officers and lower than 98 per cent of the norm of a group of employees in the retail industry in various components.
107 Ms Jones, occupational rehabilitation specialist from CRS, carried out a vocational assessment report in September 2006 in which she identified retail sales, console operator and forklift driver as suitable employment for the plaintiff.
108 Ms Jones noted Mr Gardiner had been contacted and he advised the plaintiff was suitable for sedentary work and could participate in a computer course. Ms Jones also noted that the physiotherapist had advised the plaintiff’s condition was improving, particularly in his range of movement.
109 When interviewed by Ms Jones, the plaintiff stated his English skills were very good, his arithmetic skills were adequate, but he could not manage complex mathematics. He had no knowledge of computers at that stage and expressed an interest in developing that skill. He had a current forklift licence and had completed a retail course at Sunraysia Institute of TAFE in 1994-1995.
110 At that stage, the plaintiff indicated he would like to return to forklift work, although he did appear to understand that might be unlikely, given the current condition of his shoulder. He also expressed an interest in gaining computer skills, as he had no knowledge in that field, and was aware he may require some working knowledge if he was unable to return to manual work.
111 Ms Jones suggested the plaintiff undertake a Certificate I in Information Technology through the MADEC Computer Learning Centre, commencing in October 2006.
112 In June 2007, Ms Jones suggested suitable employment option goals for the plaintiff were in retail sales, console operator, real estate trainee, merchandising and forklift operator. She noted the plaintiff had recently applied for an advertised position with a local real estate agent, and he had been registered with MADEC in Merbein.
113 Having completed sixteen weeks of JobSearch assistance, the plaintiff was considered to be an independent job seeker with skills to source suitable work. Ms Jones noted the plaintiff then continued to present as physically limited in his ability to fully utilise his right arm, although he did report a gradual improvement in shoulder movement.
114 A labour market analysis was provided by rehabilitation consultant, Ms Waltrowicz-Fumi, on 1 November 2012 of jobs available in the Mildura area. As of June 2012, the unemployment rate in Mildura was 7.5 per cent compared to the state average of 5.4 per cent and the national average of 5.2 per cent. The Mildura rate was 7.6 per cent in the week before Census night.
115 Wage rates for the following jobs were also provided – sales assistant - $17.53 per hour or $661 per week; console operator - $17.64 per hour or $670 per week; real estate agent trainee - $627 per week; traffic controller - $18.95 per hour or $720.10 per week; merchandiser - $17.30 per hour or $657.40 per week, and forklift driver - $17.64 per hour or $669.94 per week.
116 Ms Waltrowicz-Fumi concluded sales, retail assistant and retail and merchandising appeared to be options that could have a high likelihood of providing employment opportunities. She noted entry to those sorts of jobs did not require extensive training or experience, so a prospective job seeker could commence seeking suitable retail assistant positions immediately. Further, she noted console operator seemed to have less opportunity. Traffic management appeared to have jobs coming up regularly. Forklift jobs appeared to be limited and would require an applicant to link in with local labour-hire recruitment companies. Real estate sales may have some potential for someone with strong sales ability; however, the positions were not highly advertised, and tended to be accessed by general canvassing and networking.
Overview
117 There is no issue that the plaintiff suffered a compensable injury to his right shoulder whilst working for the first defendant in October 2005.
118 My analysis of the medical evidence is that that there is no significant difference in the medical opinions regarding the diagnosis of the plaintiff’s injury involving recurrent anterior dislocations of his right shoulder
119 Whilst post-traumatic osteoarthritic change may not have been later confirmed on x-ray, I accept Mr Kierce and Mr Gardiner’s views that the plaintiff has a permanent impairment of his right shoulder involving significant limitation of movement. Mr Gardiner also thought there was a permanent tendency for anterior dislocation.
120 Consistent with reduced use of the right arm was the finding of wasting by Mr Kierce and Mr Dooley.
121 Mr Holland thought there was a risk of surgery if the plaintiff developed post-traumatic osteoarthritis – a condition which Mr Dooley considered the plaintiff was at some risk of developing in time.
122 Although Mr Dooley thought the plaintiff’s condition was difficult to analyse, questioning the role played by the plaintiff’s drug habit, and he considered the constancy and intensity of the plaintiff’s complaints was not explained by his condition, he accepted the plaintiff had an organically-based injury and that the diagnosis of recurrent instability of the shoulder was not in doubt. Noting the incomplete surgical repair, he thought it possible there was still symptomatic instability of the plaintiff’s right shoulder.
123 On the basis of my analysis of the opinions of the plaintiff’s treating medical practitioners and medico-legal opinions, which I accept, the plaintiff suffered an injury to his right shoulder involving multiple dislocations and a fracture of the proximal humerus.
124 Furthermore, I accept the preponderant view expressed by these medical practitioners that the injury has impaired the plaintiff’s shoulder function and that it has in turn had the following consequences:
Pain and Suffering Consequences
125 The plaintiff has sworn three affidavits – 8 December 2010 and 30 January and 20 December 2012 – in which he deposed to the injury he suffered and the impairment caused by the consequences to him in terms of pain and suffering.
126 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon[4] at paragraph 12:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[4](2010) 31 VR 1
127 Whilst the plaintiff’s first two affidavits were inaccurate, in that he deposed there that he went on a Methadone program after his shoulder injury and that history was also given to some doctors, I found the plaintiff to be a truthful and credible witness who openly answered questions as to his drug addiction, and at times relapses, and other personal circumstances. In my view, he did not overstate or exaggerate the level of his physically-based pain and restriction.
128 There was no attack on the plaintiff’s evidence as to his pain and restrictions in cross examination. Further, there was no film or lay evidence inconsistent with the plaintiff’s description of his ongoing difficulties.
129 Whilst Mr Dooley commented on the plaintiff complaining of greater restriction than expected, he did not find any exaggeration on the plaintiff’s part nor did any other examiner make such findings or note inconsistencies on examination.
130 I have considered the submissions of Mr Ingram, for the plaintiff, and Mr Myers, for the defendants, and I have read the transcript of the plaintiff’s evidence, the vocational assessments and the medical reports.
131 On the basis of the foregoing, I am satisfied that the plaintiff’s pain and suffering consequences meet the statutory definition of “serious”.
132 My reasoning in making that finding is as follows.
133 I accept the plaintiff’s evidence that he suffers constant right shoulder pain which varies in intensity – despite lack of complaint to doctors other than in the early years after injury and receiving no treatment since 2007. In particular, he experiences aching in the outer side of the surgical scar and restricted movement particularly over the shoulder and behind his back, as he demonstrated in the witness box.
134 Whilst there was some initial improvement in the plaintiff’s shoulder condition in 2007 and 2008, he described that in the last two to three years his condition was “declining quite rapidly” with a nagging pain like it is in the nerves.[5]
[5]T16
135 I accept, as Mr Holland described, the plaintiff’s restricted range of shoulder movement will affect most activities of daily living including reaching above his head and away from his body.
136 Further, the plaintiff has weakness and impaired strength in his right shoulder extending into his upper arm. Particularly in cold weather, his arm aches and feels stiff when he wakes in the morning.
137 Whilst Methadone is not prescribed by Dr Buckley for pain relief, and the plaintiff was on the program before injury, the plaintiff relies upon it for this purpose. The prescription of Oxycontin by Dr Meyer in late 2005 led to a relapse in the plaintiff’s addiction and its use was short-lived. Panadeine Forte was also prescribed on two occasions.
138 I accept that the plaintiff has taken appropriate steps in terms of his pain control, taking what has been prescribed for him by his treating doctors. I accept that the plaintiff, when taking a higher dosage of Methadone such as 60 milligrams, had much less pain in his shoulder than on his present dosage of 16 milligrams, as he described in evidence[6] and on that higher dosage he was still in a little bit of pain but nothing like the present level.[7] I accept this is the situation despite there not being any mention in the plaintiff’s treatment notes of an increase in pain when the dosage is lowered.
[6]T61
[7]T63
139 The plaintiff is presently aged thirty three and was aged twenty six when he injured his shoulder.
140 In Stijepic v One Force Group Aust Pty Ltd,[8] Ashley JA and Beach AJA, at paragraph 43, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[8][2009] VSCA 181
141 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
142 After leaving school in Year 10, the plaintiff first worked in a petrol station, during which time he obtained the TAFE qualification in Retail which enabled him to obtain a job in a Melbourne clothing store from 1999 to 2001. Thereafter, on his return to Mildura, he worked as a forklift driver at Mildura Fruit until commencing work with the first defendant.
143 In performing the tasks required in these jobs, in particular with Mildura Fruit and the first defendant, the plaintiff was required to undertake heavy manual work which required unrestricted use of his dominant arm. As a result of his shoulder injury, the plaintiff no longer has the capacity to undertake such tasks.
144 The consensus of medical opinion is that the plaintiff is unable to carry out pre-injury duties and duties of the type he was performing when injured, and that he would need to avoid a lot of activity at or above shoulder level. Further, future work would require significant lifting restrictions.
145 In closing addresses, counsel for the defendants conceded there is an incapacity for unrestricted manual employment.[9]
[9]T84
146 This situation in itself is a serous consequence for a young man educated only to Year 9 whose condition has not improved despite surgery.
147 Before his injury, the plaintiff was extremely fit and active and enjoyed dirt bike riding, playing squash, water skiing and attending the gym on his return to Mildura in 2002. He had a black belt in taekwondo and enjoyed swimming in the pool.
148 As a result of his shoulder pain and restriction, the plaintiff is unable to ride a motorbike and water ski because of the force required to be used by his right hand. He is also unable to participate in gym activities involving his upper body.
149 At home, the plaintiff has difficulty caring for his two-year old son and has to carry him in his left hand because of pain and weakness in his right shoulder.
150 I am confident in accepting the plaintiff’s evidence as to the pain and suffering consequences because the medical evidence, which I accept, supports the conclusion that he suffered an injury which has so impaired the function of his right shoulder and is consistent with the plaintiff’s evidence that he has suffered the level of pain and suffering consequences summarised above.
151 As it is nearly six years since the second operation and the plaintiff continues to experience shoulder pain, increasing in recent years, I agree with Mr Kierce that it is unlikely there is going to be any significant change in the plaintiff’s condition, which is now stable, and he is left with wasting of the right shoulder girdle muscles and permanent limitation of movement.
152 In my view, the pain and suffering consequences meet the statutory test of seriousness, in that the degree to which the plaintiff suffers those consequences is more than significant or marked and in my value judgment, those consequences are deserving of the description of “at least very considerable”.
Loss of Earning Capacity Consequences
153 The main issue between the plaintiff and the defendants is whether the plaintiff is fit for suitable employment or, alternatively, if fit for suitable employment, whether he has permanently suffered a loss of forty per cent or more.
154 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of forty per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
155 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
156 The former must be calculated by reference to the six year period specified in s134AB(38)(f).
157 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
158 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
159 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein – See Barwon Spinners Pty Ltd & Ors v Podolak,[10] at paragraph 70.
[10]supra
160 I am therefore required to determine a “without injury” earnings figure. Limited submissions were made by counsel for the plaintiff in this respect which were accepted by counsel for the defendants.
161 Counsel for the plaintiff suggested the appropriate starting figure was $40,626, the amount the plaintiff earned in the 2004-2005 financial year. Sixty per cent of that figure is $24,255 or $466 per week.
162 A higher figure would be achieved taking into account the amount earned in the actual weeks worked. The plaintiff worked only forty weeks of that year, earning on average $1,010 per week – sixty per cent of which is $606.
163 Having considered the submissions of both counsel and read the transcript of the plaintiff’s evidence, the medical reports and vocational reports, I am satisfied the plaintiff has suffered a permanent loss of earning capacity of forty per cent.
164 As previously noted, I am satisfied that the plaintiff has lost the capacity to engage in his pre-injury employment. He is unable to engage in manual work requiring use of his right arm particularly above shoulder level and he is significantly restricted in his ability to lift.
165 The plaintiff’s capacity for “suitable employment” must then be considered.
166 Section 5 of the Act sets out the relevant factors:
“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.”
167 Significantly, the plaintiff has only completed Year 9. Save for the TAFE Retail qualification some fourteen years ago, the plaintiff had no further training before suffering injury. Whilst he completed a computer course in more recent years, I accept that was of a basic nature and one that did not involve the attainment of work skills such as creating spreadsheets or completing other complicated tasks.
168 Whilst re-training in sedentary employment such as clerical/ accountancy work or in the real estate field has been suggested by a number of doctors, I do not consider, with this academic background, that it is likely the plaintiff would successfully complete the level of further training required to reach the level of competency required to obtain work in those fields.
169 The plaintiff’s very poor results on clerical skills testing undertaken by occupational therapist, Margaret Leitch, supports this conclusion.
170 The plaintiff’s place of residence, Merbein, near Mildura in Regional Victoria, is also relevant when considering suitable employment with a higher unemployment rate in that area of 7.6 per cent compared to the state rate of 5.4 per cent as set out in the Labour Market Analysis from the Department of Human Services dated 1 November 2012.
171 The only occupational physician who has provided an opinion in this case, Dr Middleton, thought a lifting restriction of 2.5 kilograms was appropriate for the plaintiff. Further, he considered, with restrictions, the plaintiff would only be able to manage part time work, being two to four hours in any one shift, three to four non consecutive days per week – working around fifteen hours per week.
172 Dr Middleton noted it needed to be remembered that the plaintiff no longer had a reliable physical capacity and that any employment would need to accommodate the fact that his work attendance was likely to be unreliable. Thus, he thought the plaintiff would have difficulty gaining any employment.
173 A number of jobs have been suggested by the defendants including sales, console operator, traffic control officer and forklift driver.
174 Whilst the plaintiff had training and experience in retail some time ago, I accept that in addition to actual sales, a job in that field would require him to handle, pack and move stock, a task with which he would have difficulty with his right arm working more than on a part time basis.
175 Work as a forklift driver, although requiring little use of his right hand whilst driving, would involve the plaintiff using his right hand repeatedly getting in and out of the cabin – an activity which caused injury in the first incident and one which Mr Holland thought would cause the plaintiff difficulty.
176 Although the job at Mildura Fruit was purely driving, other forklift jobs would also require lifting and other stacking work. This turned out to be the case when the plaintiff was employed very briefly at Fishers Supermarket in early 2009. He only worked three days, as the job involved stacking and lifting which went beyond the job description as a forklift driver only.
177 A further difficulty for the plaintiff working as a forklift driver and also if he was engaged in any prolonged driving work would be his need to take Methadone whilst using machinery. This could be a long-term issue, as Dr Buckley explained the Methadone program has no time limitation.
178 The traffic control work the plaintiff undertook with Tristate was limited to some driving and holding a stop/go sign. In the absence of any documentation, it is unclear the usual hours worked by the plaintiff and the period during which he was employed. He explained that he worked anywhere between three to eight hours a day and could have worked three days a week, sometimes involving overnight stays on Telstra jobs. He worked for three or four months in that job until his employer lost the contract.
179 Whilst the plaintiff was employed by Tristate, because of his shoulder injury he was unable to perform the full range of required duties such as loading and unloading signs and barriers, setting them up on the roadside. The duties he did perform were very light and did not cause him any difficulty. However, I accept that such duties involved essentially a situation of protected employment – see Pisano v Precision Solid Plasterers Pty Ltd.[11]
[11][2012] VSCA 226
180 In my view, the plaintiff would have difficulty engaging in the wider range of traffic controller duties usually required for more than a few hours day.
181 Whilst the plaintiff helps out on his family block, his work is limited to pruning and other activities using his left hand. I accept that this, too, can be regarded as protected employment.
182 Whilst the plaintiff is presently engaged in full-time care of his son, he did not leave the workforce to take up this role. Prior to his son’s birth in mid 2010, the plaintiff had difficulty getting a job because of his shoulder condition and also having to disclose his criminal convictions when making job applications.
183 I accept that the plaintiff is not precluded from attending work regularly because of his need to attend the Methadone program four times a week. Participation in this program has been ongoing for over ten years. He agreed it was a full-time commitment, although not a full-time job. He considered his condition is presently under control without the need for assistance from Odyssey House and he is very conscious any relapse may jeopardise his custody of his young son.
184 I have analysed the plaintiff’s evidence and that of the medical practitioners who have offered opinions on the plaintiff’s employability in suitable employment. I find the plaintiff is not fit for suitable employment, accepting his evidence he would not be capable of undertaking the suggested tasks.
185 I accept the plaintiff’s evidence that the suggested employment is not suitable as defined in s5 of the Act because it infringes the limitations placed upon the plaintiff that he not engage in tasks which involve lifting, stretching or excessive use of his right shoulder.
186 Whilst Dr Middleton considered at best the plaintiff could work fifteen hours per week in very light duties, if this was the case, earning $19 per hour on the highest wage figures available, the plaintiff would still earn only $285 per week – far less than the threshold of $466 per week.
187 Taking into account all the evidence, I am satisfied the plaintiff has established that he has a loss of earning capacity of forty per cent within the meaning of s134AB(38)(e) of the Act. I also accept that this situation is permanent.
188 I am also required to consider issues of re-training and rehabilitation pursuant to ss(g).
189 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, despite the plaintiff’s hopes to re-train, I am satisfied there is no rehabilitation or re-training that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and re-training have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g) of the Act.
190 Accordingly, I grant leave to the plaintiff to bring proceedings in relation to loss of earning capacity, in addition to pain and suffering.
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