Filipowicz v AG Staff Pty Ltd
[2014] VCC 470
•15 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-06095
| STEFAN FILIPOWICZ | Plaintiff |
| v | |
| A G STAFF PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 June 2013 | |
DATE OF JUDGMENT: | 15 April 2014 | |
CASE MAY BE CITED AS: | Filipowicz v AG Staff Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 470 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – aggravation injury to shoulder – identity of injury – serious consequences
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Dalton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183; Guppy v Victorian WorkCover Authority [2010] VSCA 164; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to issue proceedings at common law for economic loss and pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Goldberg | Patrick Robinson & Co |
| For the Defendant | Ms A Sheehan | Wisewould Mahony |
HIS HONOUR:
1 This is an application by the plaintiff against his employer, AG Staff Pty Ltd (“AG”), pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) seeking leave to proceed at common law in respect of both pain and suffering and loss of earning capacity damages.
2 An earlier application[1] against Arnold Ribbon Co Pty Ltd relating to an injury to the plaintiff’s right shoulder which he sustained on 26 August 2003 in performing his duties as a fitter, turner and welder, has, I have been told, resolved (“the Arnold injury”).
[1](2012) 34 VR 309
3 This application against AG relates to an aggravation of the right shoulder condition which the plaintiff claimed he sustained due to employment work tasks between January 2006 and July 2006, due, it is said, to the heavy nature of his work (“the AG injury”). Pursuant to paragraph (c) of the definition of “injury” in s5(1) of the Act, an aggravation of a pre-existing injury is, itself, an injury.
4 It was not in dispute in this hearing that the plaintiff suffered compensable injuries in the course of his employment with Arnold and AG respectively. What was in contention was whether the plaintiff suffered a “serious injury” within the meaning of paragraph (a) of the definition of that term in s134AB(37) of the Act as a result of the AG injury. Paragraph (a) provides that a “serious injury” means “permanent serious impairment or loss of a body function”.
Facts
5 The defendant tendered in evidence the transcript from an earlier hearing (exhibit 4) and, to a large extent, the facts were not in issue.
6 The plaintiff was born in August 1962 and worked as a fitter, turner and welder in Poland, Germany and New Zealand before joining Arnold in 1999. Following the Arnold injury, the plaintiff returned to work in restricted duties in September 2003 and, after that time, he was on and off work until his employment was terminated in August 2004.
7 The plaintiff continued to complain of pain to his right shoulder and was prescribed pain-relieving medication. On 13 July 2004, an orthopaedic surgeon, Mr Michael Dooley, performed surgery on the plaintiff’s right shoulder. Mr Dooley found hypertrophy of the distal end of the clavicle and degenerative change affecting the acromioclavicular joint. He excised the outer rim of the clavicle.
8 Between September 2004 and January 2006, the plaintiff worked on a full-time basis and on unrestricted duties for six different employers. Although these jobs involved heavy work, at the time that he was employed, the plaintiff did not tell the various employers about any problems with his right shoulder.
9 On 16 January 2006, the plaintiff commenced work with AG without mentioning any problems with his right shoulder. The work that he performed for AG was full-time and very heavy, requiring lifting, carrying, manhandling and holding steel parts weighing up to 50 kilograms. Following the AG injury, the plaintiff ceased working for AG on 25 July 2006. He has not worked since that time.
10 On 8 August 2006, an orthopaedic surgeon, Mr Peter Kudelka, noted degenerative changes in the acromion process of the scapula. On 31 August 2007, an occupational health and rehabilitation consultant, Dr David Middleton, diagnosed right acromioclavicular joint subluxation.
11 In the financial years ending 30 June 2005, 30 June 2006 and 30 June 2007, the plaintiff’s gross annual earnings from personal exertion were $27,789, $30,380 and $2,200 respectively. In particular, in the period between 16 January 2006 to 30 June 2006, the plaintiff earned $16,450 gross, which was approximately $715 per week, or $18.82 per hour. It was further agreed that relevant evidence with respect to “without injury” earnings for the periods 30 June 2007, 30 June 2008 and 30 June 2009 were the sums of $31,291, $32,300 and $33,269 respectively. Thus, the threshold earnings at, say, 60 per cent of $30,000 would be $18,000 per annum which, at $18.82 gross per hour, represents approximately 19 to 20 hours per week. These figures would become relevant, for example, if the Court was to hold that the plaintiff would be capable of light work in suitable employment but for no more than 12 hours per week as a result of the AG injury.[2]
[2] See Dr D Middleton, exhibit J and Petkovski v Galletti [1994] 1 VR 436
12 At the hearing, there was contested evidence and competing submissions about the plaintiff’s capacity for employment in work for which he was suited, whether or not that work was available.[3]
[3]Section 5(1) of the Act
The template
13 As it was common ground that the plaintiff had suffered two separate compensable injuries on or after 20 October 1999, I am constrained to consider the application for leave to commence common-law proceedings against AG in the following manner:
(a) First, I must identify each injury;[4]
[4]Dalton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183
(b) Secondly, I must delineate the impairment consequences of each injury;[5]
[5]Dalton v Dandenong Scaffolding Hire Co Pty Ltd (supra) at paragraphs [14], [39], [47] and [49]
(c) Thirdly, the AG injury, although being an aggravation of the Arnold injury, must be treated as a separate injury and must, by itself, qualify as a “serious injury” under s134AB(37) of the Act as amplified by s134AB(38) of the Act;[6]
[6]Guppy v Victorian WorkCover Authority [2010] VSCA 164
(d) Fourthly, I am constrained to make a comparison between the plaintiff’s condition before the AG injury and his condition after the AG injury and thus, make an assessment of the additional impairment;[7]
(e) Fifthly, as the two injuries arose from separate incidents, they cannot be accumulated. The AG injury has to satisfy the requirements of a “serious injury” in its own right rather than in combination with the Arnold injury.[8]
[7]De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249 at paragraphs [9] and [11]
[8] Petkovski v Galletti (supra) at page 444
The Defendant’s submissions
14 Essentially, the defendant has argued that the plaintiff has not sufficiently identified the AG injury, because no medical practitioner is able to show radiologically what the pathological change is said to be. On the other hand, the plaintiff argues that it is sufficient for his purposes if he can demonstrate a clinical change and that that change can answer the statutory requirements of “serious injury”. There is near unanimity of all medical practitioners that the plaintiff has suffered an aggravation of the underlying post-operative condition but it is also true to say that no one in particular has identified a pathological change, radiologically, as submitted by defence counsel. Apart from the fact that it is common in these proceedings that evidence can often be acceptable that there has been an aggravation of an underlying pathological condition, say of the lumbar spine, where the proof of such change is in the rendering symptomatic of underlying degenerative change but without showing an actual radiological or pathological change.
15 The only medical practitioner to be cross-examined in this proceeding was Mr Dooley, who had performed the operation in 2004 and had re-examined the plaintiff in 2010, some time after the AG injury. At transcript 51 and 52, Mr Dooley was cross-examined about the lack of pathological change said to be occasioned by the AG injury. It was put to him that the x-ray report had effectively told him nothing with respect to this point. He replied:
“No, because one of the big problems we have in medicine is people rely on tests and really what you need here is a clinical assessment of the patient because you can pick instability of the acromioclavicular joint far better clinically than you can on x-ray. So unless I can correlate the x‑ray with a clinical finding the x-ray is not of relevance.”[9]
[9]Transcript 52, Lines 18-25
16 Given that there had been a clinical deterioration between 2004 and 2010, there is, in my view, prima facie evidence of an aggravation injury as described.
17 Defence counsel then submitted that the impairment consequences of the AG injury were hard to disentangle from the consequences emanating from the Arnold injury and, in any event, the onus of proof was not discharged. In particular, counsel points to similarities in restrictions and consumption of medication, such that the dramatic change after the Arnold injury meant there was a consequential minor change after the AG injury. There is some force in this argument. In particular, counsel points to the difficulties the plaintiff had in his return to employment in 2004 after the operation and leading up to his employment with AG in January of 2006. I accept that the plaintiff was having difficulties with his return to work in this period, which necessitated time off, apparently for as long as three weeks at a time. However, the evidence also discloses that between January 2006 and July 2006, the plaintiff engaged in employment of a heavy nature without taking any appreciable time off and which, on its face, is in keeping with the various medical examiners’ opinions that there has in fact been an aggravation of the pre-existing injury, such that by July 2006, the plaintiff is precluded from permanently returning to the heavy welding work he had performed in 2006.
18 In particular, the plaintiff was examined by orthopaedic surgeon, Mr Clive Jones, on behalf of the defendant on 30 August 2006. In his report dated 4 September 2006 (exhibit G), Mr Jones took the following relevant history:
“… He commenced working at AG Staff Pty. Ltd., in Campbellfield on 16/1/06 in a full-time capacity. The company makes trailers and truck chassis and the work is heavy. There is a good deal of lifting and bending.
There is a significant past history. Following an injury with a different employer, about two years ago, he underwent an operation on his right shoulder performed by Mr. M. Dooley. The outer end of the right clavicle was excised. There was a minor post operative infection, but he was off work completely for six weeks only and able to return to work on a light duties certificate and three months after the operation was back in normal work. However, the shoulder never settled completely and he continued to experience mild discomfort related to overuse or weather change.
Early in July this year (he was unable to remember the exact date), he was lifting square steel tubing to form up a drill bar. The weight was sixty kilograms, and no crane assistance was available. As he did so, he felt a click in the right shoulder and the shoulder joint became painful.
He said he did not think much of it at first, and continued working. Rather than improving however, the pain levels increased, and he saw his family doctor. The injury was reported on 25/7/06, the day he ceased work.
His doctor prescribed Panadeine and Mobic as an anti-inflammatory, and referred him to Mr. Kudelka. He was told the shoulder had been damaged, and was told that physiotherapy was necessary. This has not been possible so far as the claim has not been accepted and he is unable to afford this treatment.”[10]
[10]Exhibit G, Plaintiff’s Court Book, pages 64-65
19 Further, on examination, Mr Jones noted:
“The presentation was genuine. … The outer end of the right clavicle had been excised and there was a palpable defect beneath the scar. There was some local tenderness here. The shoulder was irritable, he could manage 80 degrees of abduction and 90 degrees of forward flexion. … .”[11]
[11]Exhibit G, Plaintiff’s Court Book, page 65
20 In his “Opinion” section, he wrote:
“There is a past history of previous surgery on the shoulder, with an acceptable result and the ability to work full-time in what sounds like reasonably heavy employment as a fitter and welder. A new injury was reported early in July this year, and so far has not resolved. Further investigation in [the] form of a shoulder MRI is probably necessary. … [The plaintiff] has not yet returned to his original treater, Mr. Dooley.
…
If the history is correct, then employment does appear to be a contributing factor to his on-going incapacity.”[12]
[12]Exhibit G, Plaintiff’s Court Book, page 65
21 Further, he stated:
“He is not fit for pre-injury duties at this point in time.
He would not be able to perform pre-injury duties in an alternative work environment.
… The presence of a previously documented injury to the shoulder, with surgery is also likely to be a non work related factor.
…
… The condition has not resolved and is contributing to his incapacity for work. Physiotherapy treatment would be appropriate.
… I believe the worker is unfit for work.
… .”[13]
[13]Exhibit G, Plaintiff’s Court Book, page 66
22 In my view, the history, examination and opinion afforded by Mr Jones at this point in time supports the plaintiff’s contention that there has been a new injury in the AG employment which is an aggravation of the underlying right shoulder pathology and a prominent consequence has been an inability to perform the work with AG at that point in time, or probably the work that he performed in late 2004 and throughout 2005. At this point in time, there appears to be no suggestion of psychological factors playing a part.
23 The defendant further submits that the plaintiff has not established that he, in fact, had a capacity for full-time welding work following the Arnold injury. In particular, defence counsel points to the shortened periods of employment in 2004 and 2005 and the six months of employment with AG. It would appear that there is no medical evidence which descends into detail as to what the natural course of the first injury would have been by way of impairment, had not the second injury occurred. In fact, Mr Shannon, who saw the plaintiff on behalf of the defendant, stated on 2 August 2010, that it was virtually impossible to so find.[14] In any event, this was the situation that pertained factually in Petkovski v Galletti.[15]
[14]Exhibit 8, Defendant’s Court Book, page 248
[15](supra) at page 440, paragraphs [1] to [3]
24 Accordingly, I consider that the plaintiff has discharged his onus with respect to the nature of the injury and its consequences as at the time he was assessed by Mr Jones in September 2006. The comparison in consequences with respect to the two injuries at that stage was that following the first injury, he was able to return to full-time heavy welding work, at least for the six-month period in 2006, and probably for substantial periods in 2005. I have no doubt that he had ongoing symptoms referrable to the first injury during the AG employment, but these symptoms did not result in an incapacity for work as outlined.
Physical consequences following the AG injury
25 The plaintiff was referred by his general practitioner to orthopaedic surgeon, Mr Peter Kudelka, on 8 August 2006. He was reviewed thereafter on 9 November 2006, 27 November 2006 and 7 September 2010. He provided four reports, dated 28 August 2006, 20 September 2010, 2 December 2010 and 21 December 2010 (exhibit E).
26 The histories that Mr Kudelka obtained were to the effect that the plaintiff’s job as a welder with Arnold was physically demanding, which resulted in the Arnold injury, which in turn resulted in a permanent impairment with respect to loss of function of the right shoulder. He noted subsequent difficulty with employment but that it was still that of a welder, which was physically demanding, although he considered that it was lighter work compared to the Arnold occupation.
27 He further considered that the AG injury aggravated the plaintiff’s previous symptoms in the right shoulder which had further restricted him in relation to employment and social and recreational activities. He believed that the employment with AG further aggravated his right shoulder condition and further reduced his chances of future employment.
28 He also considered that as at 2010, the plaintiff was incapacitated for his pre-injury employment as a welder and that he could only do work not involving repetitive use of the right arm, particularly at near or above the horizontal. His impression was that, with his age, education, skills and work experience, it was not suitable for him to work in clerical, office or similar employment. He also noted that his place of residence was Wallan, which is a rural area north of Melbourne. Although he considered him not totally incapacitated, he thought that it was difficult to envisage any future employment for him.[16]
[16]Exhibit E, Plaintiff’s Court Book, page 56
29 Given that Mr Kudelka considered that the AG injury further aggravated the right shoulder condition and further reduced his chances of future employment, I consider that the situation with respect to impairment noted by Mr Jones in 2006 was still persisting as at 2010.
30 I further consider that the basic measuring stick for the comparison would still be the plaintiff’s ability to carry out heavy welding work after the first injury and he had not recovered to that extent after the second injury. Further, Mr Kudelka considered that the plaintiff had a permanent impairment for his previous areas of occupation as a fitter, welder and forklift driver for the foreseeable future.[17]
[17]Exhibit E, Plaintiff’s Court Book, page 56
31 The defendant adduced evidence from orthopaedic surgeon, Mr Michael Shannon, who furnished eleven reports between 30 July 2008 and 30 May 2013 (exhibit 8). On the first occasion, he recited a relevant history and, in particular, found that the plaintiff had suffered a further injury with AG Staff and had had progressively deteriorating range of movement in his shoulder. He considered, on this occasion, that the plaintiff had also developed a Pain Syndrome with symptoms now involving his neck, where he had some degenerative change. In any event, he considered that the prognosis for resumption of employment at that stage was poor. He then stated:
“Although there are some non-organic features to this presentation, I think that he is not capable of work involving strenuous or repetitive use of the right arm, heavy lifting or work above shoulder level.”[18]
[18]Exhibit 8, Defendant’s Court Book, page 229
Further, he stated:
“His current condition is an aggravation of a pre-existing injury and the work component has not resolved.”[19]
[19]Exhibit 8, Defendant’s Court Book, page 230
32 Relevantly, on 1 September 2008, he stated:
“I have already indicated that he requires permanent restrictions on strenuous or repetitive use of the right arm, heavy lifting or work above shoulder level. These restrictions are likely to be permanent.”[20]
[20]Exhibit 8, Defendant’s Court Book, page 233
33 Mr Shannon again saw the plaintiff on 3 April 2009. The purpose of the examination was to assess any permanent impairment with respect to the AG injury. With respect to the right shoulder, he stated as follows:
“… The only information on physical findings that I have available for apportionment is a report of Mr Hooper who records a full range of movement of the right shoulder in 2005 which was subsequent to his original injury and prior to his employment with AG Staff.
On this basis, I think that the shoulder condition can be apportioned as follows:
The range of movement restriction is secondary to his second injury, but the acromioclavicular joint impairment is clearly pre-existing and the impairment to his elbow relates to the second injury.”[21]
[21]Exhibit 8, Defendant’s Court Book, page 240
34 Mr Shannon concluded:
“Therefore, he has 18% upper extremity impairment due to restricted movement following the second injury and 2% upper extremity due to the elbow condition leading to 20% upper extremity impairment which represents 12% whole person impairment.
Therefore impairment from the injury sustained on 17 July 2006 = 12%.”[22]
[22]Exhibit 8, Defendant’s Court Book, page 241
Further, he stated:
“I have disregarded the impairment from excision of the outer end of the clavicle because this relates to a pre-existing injury, but I am unable to make any other reliable apportionment.”[23]
[23]Exhibit 8, Defendant’s Court Book, page 241
35 When assessed on 30 June 2010, Mr Shannon considered that assessment of the plaintiff was difficult because of perceived considerable lack of cooperation with the examination. He no longer thought a diagnosis of adhesive capsulitis was relevant. He considered that he was still suffering from the effects of the physical injury and the prognosis was satisfactory. However, he thought that there was also a superimposed Pain Syndrome, the prognosis for which was uncertain. He considered that the injuries with Arnold had affected his capacity to perform work involving strenuous repetitive use of the arm, heavy lifting and work above shoulder level. On presentation, he did not have a capacity for pre-injury employment. However, he felt he was unable to separate the shoulder injury itself from the Pain Syndrome.[24]
[24]Exhibit 8, Defendant’s Court Book, page 246
36 In his last report dated 30 May 2013, Mr Shannon was asked his opinion on various matters but without further examination of the plaintiff. He disagreed with Dr Middleton as to whether the plaintiff had any residual work capacity but agreed with him to the effect that the plaintiff had an ongoing severely disabling injury to his right shoulder and he thought it fair to say that he did have a significant injury to the right shoulder and has required surgery.[25] The only reference to apportionment was as follows:
“The injury relates only in part to his employment with AG Staff as he had previous surgery to the shoulder.”[26]
[25]Exhibit 8, Defendant’s Court Book, page 264
[26]Exhibit 8, Defendant’s Court Book, page 266
37 In my view, Mr Shannon’s opinions do not essentially detract from the findings expressed in paragraphs 29 and 30 above.
38 As recorded earlier, Mr Dooley was the only medical witness to give viva voce evidence and be cross-examined. Under cross-examination, he stated that the examination he conducted in 2010 was to give an opinion as to whether further surgery on his shoulder might be indicated.[27] At that time, he thought that there may be some psychological factors influencing his presentation but that would be in the context of the plaintiff being anxious about possible future surgery.[28]
[27]Transcript 44, Line 28
[28]Transcript 45, Line 19
39 Further, when asked to comment upon the likely progress of the shoulder following the first injury, Mr Dooley stated:
“The majority of patients with that operation get a good result and by that I mean they get substantial relief of their pain and they can return to a range of activities. They will probably struggle with a lot of overhead activity or a lot of lifting overhead activity but many would get back to a range of physical work, light physical work, et cetera. They have some intermittent shoulder girdle pain but they function capably.”[29]
[29]Transcript 48, Lines 9-17
40 Mr Dooley was then asked:
Q:“When you saw him in 2010, did you believe that any part of his presentation was due to the injury [f]or which you had treated him in 2004?---
A:Look, as I said, I would expect that some of the presentation then I would have expected him to have noted some intermittent shoulder pain. So if his presentation at that time was, ‘Look, I note some shoulder pain, I note it with a lot of activity, heavy overhead,’ I would say, well, that could relate to the initial injury and subsequent surgery, et cetera. At the time I saw him in 2010, he was complaining of a constant pain in his shoulder and, as I said, quite marked limitation of motion. So I wouldn’t be able to correlate that presentation with his initial presentation six years previous.”[30]
[30]Transcript 49, Line 23 to Transcript 50, Line 5
However, he stated:
“Some of that pain that he had in 2010, yes, could relate to the initial injury and subsequent surgery.”[31]
[31]Transcript 50, Line 8
41 Mr Dooley was then asked whether, at the time he saw the plaintiff in 2010, was the examination in part the same injury for which he saw him in 2004. His reply was as follows:
“I think as far as I could tell there was no – this might be a strange way of answering it but trying to answer it – there was no direct connection. As I said before, I think anyone who has the original injury and has an operation, like anyone who sprains their ankle or whatever it might be, will get some ongoing intermittent pain that is part of the original event. But my dealing with Mr Filipowicz at the time and seeing him after his wound healed is that his pain improved and he was … going to do things and my comment was if you have trouble, if you have pain, if you run into difficulties please come back so I can review it. And so he hadn’t. When I saw him in 2010 he was complaining of constant pain, not specifically related to the acromioclavicular joint, generalised tenderness, marked restriction of motion, anxiety, depression and a whole lot of issues going on. So again I would try answer that at that stage, at that point in time, some of his shoulder pain, but a very small percentage overall, related to the intermittent pain I would have expected him to have over the last six years, but I don’t think his presentation to me in …[2010] was that of a patient who had had a acromioclavicular joint arthritis excision of the outer end of the clavicle and suddenly six years later presented with major pain related to that.”[32]
[32]Transcript 53, Line 15 to Transcript 54, Line 9
42 Thereafter, in re-examination, Mr Dooley was asked whether, when he had completed his treatment of the plaintiff in 2004, did he consider it necessary to impose any restrictions on his capacity for work, and he replied:
A:“No, no formal restriction. As I said, I think I usually advise patients and Mr Filipowicz presented as a sensible man, background, that sort of work, you say to patients – look, I generally tell them it’s – I tell them, ‘Follow your nose’. Like anything, start off slowly, build up. See how you go. Just pace yourself. If there is an issue, well, you will get around that. If you feel it is a significant issue, I am more than happy to review you any time,’ et cetera. But I don’t say, ‘You must not lift greater than five kilos,’ or ‘You must not move your arm above your head more than, you know, five minutes in an hour,’ or something like that.
Q:Do we take it from that that you saw no necessity to advise him back in 2004 that he should not return to work as a fitter/welder?---
A:Correct.”[33]
[33]Transcript 58, Line 26 to Transcript 59, Line 11
43 Once again, I consider that this evidence is substantially aligned with the findings referred to in paragraphs 29 and 30 above.
44 Further, this analysis would be consistent with the evidence of the treating general practitioner, Dr Saeed, who saw the plaintiff on 10 June 2005 when he had been offered a new job. At that time, he wanted a clearance certificate to be able to start full-time duties. Dr Saeed stated:
“Examination of his shoulder was unremarkable. He was given the all clear to go back to work but was advised to avoid very heavy lifting and car of his right shoulder.
Since that time I have not seen [the plaintiff].”[34]
[34]Exhibit B, Plaintiff’s Court Book, page 37
Economic loss consequences following the AG injury
45 It is clear that there was a range of opinions from various medico-legal examiners as to the residual capacity for work following the AG injury. It was common ground that the plaintiff could not return to the heavy welding work he had been performing in 2005 and 2006, but there was wide variety of opinion that he could do alternative light work not producing stress on his right shoulder.
46 Given that it is likely that the plaintiff does have a residual capacity for work along those lines, the question of number of hours a week also comes into the equation.
47 The plaintiff was examined by occupational health and rehabilitation consultant, Dr David Middleton, on 31 August 2010. He considered that as a result of the injury at Arnold on 26 August 2003, there was a physical injury (excluding any functional overlay) that resulted in an incapacity for his pre-injury employment but left him with a capacity for employment which he demonstrated on the history already documented. After the first injury, he had a capacity to undertake full-time suitable duties. It was his view that that incapacity resulting from the first injury would continue into the foreseeable future. Following the second injury, he stated:
“Dealing entirely with the physical injury to the right shoulder and the resultant impairment, it is my opinion that Mr Filipowicz was then likely to restrict, if not preclude entirely his capacity for employment, the extent to which the right shoulder injury, diagnosed above, now restricts right shoulder and arm activities to the lightest non-manual activities. Noting that despite some degree of resolution of his restrictive capsulitis, there remains the progressive loss of strength in the right upper limb as documented by his grip strength.”[35]
[35]Exhibit J, Plaintiff’s Court Book, page 85
48 Further, addressing the physical component of the AG injury and excluding any functional overlay, Dr Middleton thought it was clear that the plaintiff no longer had the capacity for those duties suffered prior to that injury.
49 Dr Middleton was then asked specifically:
Q:“If it is considered the Plaintiff is capable of undertaking suitable employment, and again, only having reference to the physical right shoulder injury and impairment arising from the plaintiff’s employment with AG Staff between January 2006 and July 2006, is it considered that he is suited to full time or only part time employment? If considered only suitable for part time employment, what would be the maximum number of hours per week for which the plaintiff would be suited?
A:Noting in my opinion his current incapacity for any work for which Mr Filipowicz has a physical capacity and skills to undertake, it would require upskilling and training for Mr Filipowicz to have any feasibility in undertaking suitable employment, noting his education precedes his gaining of English skills, adequate retraining will be severely impeded. Adding to this, the loss of physical capacity in his right dominant arm would render him in the case of non-manual work limited to only part time employment around a level of 4 hours per day 3 days per week.”[36]
[36]Exhibit J, Plaintiff’s Court Book, page 86
50 In my view, given Dr Middleton’s opinion that the plaintiff is probably not fit for any work, I consider that this limitation of twelve hours per week is a reasonable assessment, taking into account all of the factors there expressed, given that I find that the plaintiff is a well-motivated individual who continually tried to exercise his residual working capacity following the first injury.
51 Accordingly, given that no other professional apparently turns his or her mind to an analysis of full-time work in relation to the plaintiff’s capacity for suitable employment, I find that Dr Middleton’s opinion carries the day for the plaintiff in this regard.
52 Accordingly, because of the factors outlined in paragraph 11 above, I consider that the plaintiff had discharged the onus of proof with respect to loss of earning capacity and leave will be granted accordingly.
53 Further, in accordance with the dicta set down in Advanced Wire & Cable Pty Ltd v Abdulle,[37] leave will also be granted to the plaintiff to issue proceedings for pain and suffering damages.
[37][2009] VSCA 170
54 I will hear the parties as to any consequential orders.
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