Filipowicz v Arnold Ribbon Co Australia Ltd; Filipowicz v; AG Staff Pty Ltd
[2011] VCC 287
•21 February 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-06097
| STEFAN FILIPOWICZ | Plaintiff |
| v | |
| ARNOLD RIBBON CO AUSTRALIA LTD | Defendant |
| - AND - |
Case No. CI-09-06095
| STEFAN FILIPOWICZ | Plaintiff |
| v | |
| AG STAFF PTY LTD | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8, 9 and 10 February 2011 |
| DATE OF JUDGMENT: | 21 February 2011 |
| CASE MAY BE CITED AS: | Filipowicz v Arnold Ribbon Co Australia Ltd; Filipowicz v AG Staff Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 287 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the right shoulder – compensable injury suffered with the first employer – compensable injury suffered with the second employer – whether the facts disclosed that the compensable injuries materially contributed to the consequences contended for by the plaintiff - Grech v Orica Australia Pty Ltd (2006) 14 VR 600 – leave granted against both employers: section 134AB(38)(c).
--
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Jordan SC with | Opie & Co |
| Mr M Nightingale | ||
| For Arnold Ribbon Co Australia Ltd | Mr J Batten | Thomsons Lawyers |
| For AG Staff Pty Ltd | Mr C Hangay | Wisewould Mahony |
| HIS HONOUR: |
Introduction
1 Before the Court are applications brought by Originating Motions filed on 18 August 2009 and 21 December 2009 by which the plaintiff applies for leave, pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendants.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr J Jordan SC appeared with Mr M Nightingale of Counsel for the plaintiff and Mr J Batten of Counsel appeared for Arnold Ribbon Co. Australia Pty Ltd (“Arnold Ribbon”), and Mr C Hangay of Counsel appeared for AG Staff Pty Ltd (“AG Staff”).
4 The body function which the plaintiff says has been lost or impaired is the right shoulder.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. • Dr Middleton, physician, gave evidence and was cross-examined. •
Mr Kudelka, orthopaedic surgeon, gave evidence and was cross- examined.
• The plaintiff tendered:
ƒ The plaintiff’s Court Book (“PCB”), pages 8; 13-29; 49-64A; 66-74 and
80-98;ƒ Arnold Ribbon’s Court Book (“D1/DCB), pages 14-16; ƒ A G Staff’s Court Book (“D2/DCB), pages 78-82: Exhibit A. ƒ A report of Mr Hooper, orthopaedic surgeon, dated 17 June 2005:
Exhibit B.
• Arnold Ribbon tendered:
ƒ Video of alternative jobs: Exhibit D1/1. ƒ Arnold Ribbon’s Court Book, pages 17-32.2; 33-55; 85-100: Exhibit
D1/2.ƒ A bundle of medical certificates: Exhibit D1/3. • A G Staff tendered:
ƒ A G Staff’s Court Book, pages 1-9; 10-31; 35; 38; 74-76 and 83-87:
Exhibit D2/1.
The Statutory Scheme
6 The applications are brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by sub-s.(19)(a), sub-s.(19)(b) and sub-s.(38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently.
(g)
Sub-section (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Sub-section (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Sub-section (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-s.(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: See Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] [1994] 1 VR 436
8 I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Incident
9 The plaintiff was born on 20 August 1962 in Poland. He is now forty-eight years of age. He is a married man. His wife works part-time. He has a daughter who is twenty-four years of age and occupied full-time as a student.
10 The plaintiff qualified as a fitter, turner and welder in Poland. He worked in his trade in Poland and in Germany before migrating to New Zealand in October
11 The plaintiff worked in his trade for a fishing company in New Zealand in its factory, and later on its fishing boats. He worked for that company for a total of nine years. He then migrated with his family to Australia in 1999. His first job in Australia was with Arnold Ribbon, where he worked in his trade for a period of four years before suffering injury to his right shoulder.
The Injury with Arnold Ribbon
12 On 26 August 2003, the plaintiff lifted a heavy steel bar from a frame. It slipped from his grasp, resulting in a wrenching injury to his right shoulder.
The Plaintiff’s Medical Treatment
13 The plaintiff saw Dr Saeed, general practitioner, on the day of the occurrence of the incident. He was advised to rest, apply Deep Heat to his right shoulder and to remain off work for two days.
14 The plaintiff returned to see Dr Saeed on 1 September 2003, complaining of continuing pain. He was referred to physiotherapy, and was given further days off work. He was referred to have an x-ray and an ultrasound, which Dr Saeed considered showed some abnormality.
15 Dr Saeed referred the plaintiff to Mr Goldwasser, orthopaedic surgeon. In the meantime he prescribed the plaintiff Celebrex for pain relief. The plaintiff returned to work on light duties while waiting to see Mr Goldwasser.
16 The plaintiff saw Mr Goldwasser on 6 January 2004. The plaintiff told him that he was experiencing a clicking sensation in his AC joint with some localised tenderness. Mr Goldwasser referred the plaintiff to have an injection into the joint under image control.
17 Mr Goldwasser reviewed the plaintiff on 14 January 2004. On that occasion the plaintiff reported no tenderness. It would appear that he was advised by Mr Goldwasser to return if his pain recurred.[5] However, the plaintiff denied that he obtained any significant relief from the injection. He said that what relief he did obtain only lasted hours, which is inconsistent with the impression obtained by Mr Goldwasser.[6]
[5] PCB 61-62
[6] Transcript 24-25
18 The plaintiff continued to have problems with his right shoulder which were aggravated by lifting. He experienced increased pain. He suffered interference with his sleep. As a result, Dr Saeed referred the plaintiff to Mr Dooley. It was the plaintiff’s preference to obtain a second opinion from another surgeon because he considered that Mr Goldwasser’s bedside manner left something to be desired.[7]
[7] Transcript 25
19 The plaintiff first saw Mr Dooley on 6 May 2004. Mr Dooley advised the plaintiff to undergo surgery. The surgery involved the excision of the outer end of the right clavicle, which Mr Dooley undertook on 13 July 2004. Mr Dooley found that the distal end of the clavicle showed degenerative changes affecting the joint.[8]
[8] PCB 63A-64
20 Is not clear whether Mr Dooley reviewed the plaintiff following the surgery, but in one of his reports he said that it was his intention to do so. The next occasion when Mr Dooley saw the plaintiff was 16 September 2010. The plaintiff was referred to him by Dr Petrovic, general practitioner.
21 The plaintiff discussed the prospect of undergoing further surgery with Mr Dallalana, orthopaedic surgeon. Mr Dallalana advised the plaintiff to undergo an arthroscopy. Mr Dooley considered that to be a reasonable option for treatment for the plaintiff’s ongoing right shoulder problem.[9]
[9] PCB 64A
22 The plaintiff said that he returned to work with Arnold Ribbon on light duties following the surgery. Mr Batten cross-examined the plaintiff and put to him that he did not return to work. The upshot of that cross-examination was that the plaintiff said that he developed a problem with his nose. He had surgery on his nose on 5 March 2004. He subsequently went onto sickness benefits for about three weeks, until about 10 April 2004. He then returned to work on light duties.[10]
[10] Transcript 18-19
23 The plaintiff said that following the surgery of 13 July 2004, he was certified as totally incapacitated. The certification took him up to 20 August 2004, after which he was certified as being fit for light duties.
24 Some time prior to 20 August 2004, the plaintiff and his brother received news from Poland that their mother had suffered a stroke and was seriously unwell. The plaintiff and his brother travelled independently for the purpose of seeing their mother.
25 During cross-examination, Mr Batten put to the plaintiff that he did not inform Arnold Ribbon that he intended to travel overseas. The plaintiff said that about three days before he left Australia he informed Mr Stefan Yoannidis that he intended to travel overseas, and the reasons for his need travel immediately.[11] During the course of that cross-examination, Mr Batten referred to a statement made by Mr Yoannidis and a letter written by him directed to the plaintiff.
[11] Transcript 23
26 The relevant part of the statement and the letter suggest that the plaintiff did not inform any responsible person at Arnold Ribbon that he intended to travel overseas.[12] The plaintiff denied the allegations made by Mr Yoannidis.
[12] DCB 81 and 97
27 Whatever the case, it seems to me not to be overly relevant, save as to the plaintiff’s credit. What is certain is that the plaintiff was on a certificate to be off work until 20 August 2004, but before that date arrived, he left to go overseas to see his mother who was in a parlous state of health. Subsequently, and whether the fault of the plaintiff or Arnold Ribbon, the plaintiff’s employment with Arnold Ribbon came to an end.
28 The plaintiff was employed by a number of other employers following his return from Poland:
• He worked for three months at Govan Industries in Campbellfield as an assembler. • He worked six days per week for about three months at K & T Engineering in Somerton as a fitter/welder. • He worked at Annsir Engineering on 13 April 2005 as a fitter/welder and suffered an aggravation of the injury to his right shoulder lifting a heavy steel bar. He lost his balance, with the result that he twisted his right shoulder. He experienced significant pain. He saw Dr Saeed, who prescribed him painkilling medication and certified him as unfit for work. He returned to work on 19 May 2005. On his return to work, he was confronted by his boss and his boss’s wife, which led to his employment being terminated. • He worked for about three months at Gate Opening Systems as a fitter/welder. • He worked at Coreco as a forklift driver and undertaking packing work. • He worked at Manumatic Industries undertaking assembling and welding work. 29 After his employment with Manumatic Industries came to an end, the plaintiff obtained employment AG Staff.
30 According to the reports provided by Dr Saeed, it would appear that she was aware by August 2004 that the plaintiff was no longer working with Arnold Ribbon, and had found alternative employment.
31 It would appear that the only other occasions on which the plaintiff saw Dr Saeed were in May 2005 for treatment for the aggravation to his right shoulder, which occurred in his employment with Annsir Engineering, and then on 10 June 2005, when he requested a clearance certificate so he could commence work full-time.[13]
[13] PCB 49B-49C
32 Subsequently, the plaintiff commenced seeing Dr Petrovic, general practitioner. It is not clear from the evidence of the plaintiff or from the reports of Dr Petrovic when the plaintiff first saw her. However, what is clear is that Dr Petrovic was treating the plaintiff at around the time when the plaintiff says he suffered further injury to his right shoulder as a result of the work he performed with AG Staff.
The Injury with AG Staff
33 The plaintiff commenced work with AG Staff on 16 January 2006. In his first affidavit he described the work as very heavy, requiring lifting, carrying, manhandling and holding steel parts weighing up to 50 kilograms. After engaging in that work for several months, and probably in March 2006, he said he experienced increased pain in his right shoulder going into his right elbow.
34 Mr Hangay challenged the plaintiff’s account of how he came to be injured for the purpose of establishing that the plaintiff was not injured as a result of specific incident while working with AG Staff. The plaintiff gave the following answers:
“Q: Do you think you realistically could've kept working in that job?--- A: No, after the incident, no. I stopped because the pain was just - - - Q: After the incident, which incident are you talking about?--- A: 2006, yes? Q: Yes?--- A: In AG Staff. Q: So there was an incident at AG Staff?--- A: Just accident, I just leave the - whatever it was on the tow bar,
bar, and it happened again.”[14][14] Transcript 62-63
35 The plaintiff saw Dr Petrovic for treatment for an injury he suffered while working for AG Staff. Is not clear to me when the plaintiff saw her, however, the following is what Dr Petrovic said in her report dated 29 May 2006:
“… His work duties involved heavy lifting and carrying heavy objects and this led to exacerbation of pain and restriction of movement of his right shoulder and right elbow. Mr Filipowicz came to see me for medical consultation on the 28th June 2006. He told me that for the past three months he had been and still was suffering from increasing pain in his right shoulder and right elbow.”[15]
[15] PCB 50
36 Dr Petrovic’s record of what she was told by the plaintiff is equivocal. It contains a reference to the plaintiff doing heavy lifting, and also of increasing pain in the last three months. It does not necessarily corroborate what the plaintiff said in his oral evidence.
37 I accept the plaintiff’s evidence that he was engaged in an episode of lifting at the time when he experienced pain in his right shoulder, and that subsequently, it increased over the ensuing months, ultimately resulting in him being unable to continue working with AG Staff.
The Plaintiff’s Medical Treatment
38 Dr Petrovic referred the plaintiff to have an x-ray and an ultrasound of his right shoulder. She prescribed him non-steroidal anti-inflammatory medication and certified him as unfit for work.
39 Dr Petrovic referred the plaintiff to Mr Kudelka, orthopaedic surgeon. The plaintiff saw him on 8 August 2006, and then on three subsequent occasions.[16] He obtained a history from the plaintiff that he had aggravated the condition in his right shoulder when handling welding tools and lifting weights at work.
[16] Transcript 109
40 Mr Kudelka examined the x-ray and the ultrasound. He noted degenerative changes in the acromion process of the scapular, and the previous surgery to remove the outer region of the clavicle. He recommended that the plaintiff undergo physiotherapy and use Naprosyn for pain relief. He then referred the plaintiff back to Dr Petrovic.
41 Dr Petrovic subsequently referred the plaintiff to Mr Dallalana. He saw him in November 2006. He obtained a history from the plaintiff that he aggravated his right shoulder while manipulating a metal bar at work in July 2006.[17] It would appear that Mr Dallalana saw the plaintiff on a number of occasions. On an occasion when he reviewed the plaintiff, he offered the plaintiff surgery. The inference which I think is fair to draw from his report dated 21 September 2007, is that the surgery was related to what he considered to be mild instability of the outer end of the right clavicle which he intended to stabilise through surgery.[18]
[17] PCB 72
[18] PCB 72 and D2/DCB 79 and 80
42 Mr Dallalana referred the plaintiff to have an MRI scan of his neck for the purpose of excluding, or indeed implicating, any abnormality in the plaintiff’s neck which may have accounted for the tingling and numbness extending down to his right arm into the fingers of his right hand. He was of the opinion that the abnormalities reported by the plaintiff were not solely related to his neck. He referred the plaintiff for nerve conduction studies. The plaintiff underwent nerve conduction studies on 1 February 2007. No abnormality was detected in the right hand and forearm.[19]
[19] PCB 74 and D2/DCB 77 and 79
43 According to Dr Petrovic, she obtained advice from Mr Dallalana regarding treatment which the plaintiff should have. In her report dated 6 December 2010, she referred to that advice being physiotherapy, hydrotherapy, pain management strategies and the use of medication.[20]
[20] PCB 59
44 Dr Middleton saw the plaintiff in 2007. It is not clear to me how the plaintiff came under the care of Dr Middleton. He made no reference to that in any of his medical reports; it emerged during his evidence, and from some cryptic references in other medical material in the Court Books. He said that he occupied a consulting role when he first saw the plaintiff but, interestingly, in a report of Mr Dallalana, Dr Middleton was copied into correspondence composed by Mr Dallalana.
45 The plaintiff said that he saw Dr Middleton in 2007. He was treated by Dr Middleton, who gave him an injection and undertook a hydro-dilatation of his right shoulder. Dr Middleton gave no evidence of having undertaken either of those procedures. I accept that the plaintiff did undergo each procedure.
46 The plaintiff was also referred to the Dorset Hospital on 16 October 2008 by Dr Petrovic. The purpose was for the plaintiff to undergo a multidisciplinary pain program.[21] The plaintiff attended the hospital in October 2008 and underwent an eight-week course. It was arranged through Mr Dallalana. The plaintiff said that he received no benefit from the program.[22]
[21] PCB 57
[22] Transcript 61-62
47 The plaintiff has not worked since 25 July 2006. He has been in receipt of weekly payment of compensation. At present he remains under the care of Dr Petrovic. She prescribes him Tramal for pain relief; Temazepam to help him sleep, and Nexium for stomach problems related to the use of medication.[23]
[23] Transcript 41
The Medical Opinions
48 My general observation of the plaintiff’s evidence is that he gave his evidence in a straightforward and an entirely believable way. Indeed, apart from testing his evidence, neither Mr Batten nor Mr Hangay made any serious attack upon the plaintiff’s credit.
49 I accept that the plaintiff suffered a compensable injury with Arnold Ribbon which impaired the function of his right shoulder, and I think that the evidence is essentially one way, that the impairment is permanent and has consequences for the plaintiff which I will refer to later in these reasons.
50 I also accept that the plaintiff suffered a compensable injury with AG Staff which further impaired the function of his right shoulder, and again I think the evidence is essentially one way, that is, that the further impairment is permanent and has consequences for the plaintiff which are also referred to later in these reasons.
51 I think it is important to establish the foregoing before reviewing all of the medical evidence given the submissions on the law made by counsel. Mr Batten and Mr Hangay submitted that it is for the plaintiff to demonstrate that the injury to his right shoulder, which occurred when he was employed with Arnold Ribbon, meets the statutory test, and likewise with his employment with AG Staff.
52 In other words, that the consequences of the initial injury to the right shoulder with Arnold Ribbon have consequences which meet the statutory test ignoring the extent of the aggravation consequent upon the second injury with AG Staff. Furthermore, that the second injury must be tested having regard to the principles enunciated in Petkovski v Galletti,[24] and that the plaintiff can only establish serious injury by demonstrating that the aggravation of the pre- existing injury to his right shoulder has consequences which meet the statutory test.
[24] [1994] 1 VR 436; and confirmed in Guppy v VWA and Bendigo Access Employment Inc [2010] VSCA 164
53 Mr Jordan disagreed with that submission. He submitted that I should follow the thesis enunciated by Ashley JA in Grech v Orica Australia Pty Ltd.[25]
[25] (2006) 14 VR 600
54 I will return to these submissions and give consideration to them after reviewing all the medical evidence.
55 I think it is unnecessary to review the medical evidence in any significant detail because there seems to be unanimity amongst many of the medical practitioners concerning the injury suffered by the plaintiff.
56 It is very clear that Mr Dooley considered that the plaintiff had suffered an injury which was producing pain in the acromioclavicular joint, the joint into which Mr Goldwasser injected steroid and anaesthetic. The fact that it produced some temporary relief confirmed that it was the acromioclavicular joint which was the source of the plaintiff’s pain. The latter point was emphasised by Dr Middleton, who said that the relief which the plaintiff obtained confirmed that it was the acromioclavicular joint which was the source of his pain.[26]
[26] Transcript 93
57 It is also very clear to me that once the plaintiff had suffered the injury to the acromioclavicular joint, and undergone the surgery performed by Mr Dooley, that the joint became unstable. This was the reason why Mr Dallalana advised him to undergo surgery to stabilise it, and to undergo the diagnostic exploration of his right shoulder to determine if there was any other pathology which was responsible for the pain and disablement complained about by the plaintiff.[27]
[27] This was the explanation given by Mr Kudelka of the purpose to be served by the surgery recommended by Dr Dallalana at transcript 115
58 Dr Petrovic expressed the opinion that the plaintiff’s employment with both Arnold Ribbon and AG Staff were a cause of the impairment of the plaintiff’s right shoulder.[28]
[28] PCB 51, 53, 57 and 58-59
59 Dr Middleton expressed the opinion that the plaintiff’s employment with Arnold Ribbon resulted in an injury for which he would have placed the plaintiff on restrictions relevant to lifting both the weights to be lifted and lifting over shoulder height. He considered that the impairment resulting in incapacity for work from that employment would continue for the foreseeable future.[29]
[29] PCB 9-11
60 In relation to the plaintiff’s employment with AG Staff, he expressed the opinion that the plaintiff’s injury to his right shoulder had been aggravated by the work he undertook with AG Staff. Dr Middleton said that his opinion was fortified when he commented on an x-ray of the plaintiff’s right shoulder taken on 7 November 2007 on referral by Mr Dallalana.
61 The opinion of the radiologist was as follows:
“Left acromioclavicular joint space is preserved and remains normal with
weight-bearing view.
Right acromioclavicular joint is well aligned but widened and remains widened with weight-bearing. This indicates joint capsule disruption.”[30]
[30] PCB 98A
62 After looking at the x-ray Dr Middleton said the following:
Q:
I'm showing, your Honour, the 98A Court Book page, which is an x- ray dated 7 November 2007 of the acromioclavicular joint (to witness). Now, this is after of course the 2006 aggravation, doctor, and I'd just ask you to have a look at that piece of radiology for a moment?---
A:
Well, it shows what a normal acromioclavicular joint does, and it tells you that the right acromioclavicular joint remains widened, and effectively, with weight bearing, remains widened. Now, weight bearing is put onto assess the stability, and it just goes to indicate that there is joint capsule disruption, so one must assume that it is not - well, at that point in time the acromioclavicular joint was not stable.
Q: This is after the 2006 incident?--- A: That's correct. Q:
I want you for the moment to leave aside the veiled challenge that was made by Mr Batten about the man's genuineness in terms of what he was telling you about symptoms and tenderness and so forth, just dealing with the radiology if you can. If you can't answer this please say so, but just dealing with the radiology, and forgetting about what the plaintiff has said in the clinical examination, what is your opinion about what the 2006 aggravation has done?---
A:
This x-ray indicates that the acromioclavicular joint on the right remains, it was and [is] unstable. [At]…the time of the [surgery in] 2003 one would have addressed instability. As he says, he carefully repaired the soft tissue. So if you put the two together you've got to say that the joint became unstable again with the second injury.
Q:
So with all the material that you now have, what would you say the injury that occurred in 2006 is best described as in medical terms? What's happened in the aggravation in 2006, if you could?---
A: The aggravation has caused - - - Q: Sorry to be difficult about this?--- A:
Recurrent, if not - well, we've never talked about the instability of the first one. But it certainly has shown that there is instability in the right acromioclavicular joint, which is a painful condition.
Q: So has it aggravated the previous instability that was - - -?--- A: Yes, yes, it's aggravated the previous operation obviously.”[31] [31] Transcript 101-102
63 Dr Middleton gave evidence that Mr Dooley undertook surgery for the purpose of relieving the problems in the acromioclavicular joint which he believed was the source of the plaintiff’s pain. Dr Middleton was of the opinion that the purpose of the surgery was to remove bone to relieve the plaintiff’s pain. However, according to Mr Dooley’s operation notes, he performed a careful soft tissue repair. This led Dr Middleton to conclude that if that was the case, then the x-ray demonstrated a degree of instability which, I infer, he would not have expected. Hence, he considered that employment with AG Staff had aggravated the condition of the plaintiff’s right shoulder to this extent.
64 It would appear that Mr Dallalana was of the same opinion, that there was instability in the right shoulder which he considered warranted the plaintiff considering a surgical solution.
65 It would appear that Mr Kudelka was of the same opinion as Dr Middleton. He said as much in his reports dated 20 September 2010 and 2 December 2010.[32] He confirmed this repeatedly in his oral evidence. This was best demonstrated by the answers he gave in re-examination in which he implicated the plaintiff’s work with Arnold Ribbon and his work with AG Staff in causing the impairment which the plaintiff currently suffers with his right shoulder.
[32] PCB 68A-68D
66 Neither Mr Batten nor Mr Hangay addressed me on the medical reports in the Court Books, preferring to base their submissions on whether the plaintiff had discharged the onus of proof which he bears, and, in the course of doing so, concentrating on what they each submitted were the inadequacies in the plaintiff’s evidence.
67 Mr Hooper, orthopaedic surgeon, examined the plaintiff for the defendants on 7 June 2005. It would appear that the purpose of his examination was to determine whether he had suffered an aggravation of his right shoulder when he worked with Annsir Engineering.[33] He concluded that the plaintiff had suffered a temporary aggravation from which he had substantially recovered. He was of the opinion that the symptoms related to him by the plaintiff were attributable to his work with Arnold Ribbon.[34]
[33] Mr Nichol referred to Annsir Engineering as Mount Manus
[34] D1/DCB 15-16
68 Mr Jones, orthopaedic surgeon, examined the plaintiff for the defendants on 30 August 2006. It would appear that Mr Jones examined the plaintiff relevant to his employment with AG Staff. He was aware that the plaintiff had suffered injury in his employment with Arnold Ribbon and that he had been treated by Mr Dooley. He expressed the opinion that the plaintiff’s employment with AG Staff was a contributing factor to his ongoing incapacity, and that the plaintiff had suffered a new injury. He considered him to be unfit for work. He was not able to offer any opinion regarding initiatives which would facilitate the plaintiff being able to return to work.[35]
[35] PCB 69-71
69 Mr Shannon, orthopaedic surgeon, examined the plaintiff for the defendants on 3 April 2009[36] and 30 June 2010.[37] Mr Shannon’s first examination appears to have been focused upon an impairment assessment in accordance with the AMA Guides (4th edition), which is of little assistance in an application of this kind. The only observation made by Mr Shannon of any significance is the apportionment of responsibility between the plaintiff’s employment with Arnold Ribbon, and then with AG Staff. He was of the opinion that the range of movement restriction was secondary to the second injury (AG Staff) and that the acromioclavicular joint impairment was pre- existing (Arnold Ribbon).[38]
[36] D2/DCB 20 – 25. In the course of Mr Shannon’s examination of the plaintiff, it occurred to him that he had previously examined the plaintiff. No medical report was produced relevant to that previous examination.
[37] D2/DCB 11-15
[38] D2/DCB 24
70 On the second occasion on which Mr Shannon examined the plaintiff, it would appear that he was asked to give an opinion relevant to the injury which the plaintiff was said to have suffered with Arnold Ribbon. He was aware that the plaintiff had injured his right shoulder in his employment with AG Staff. He was of the opinion that the plaintiff had suffered an injury to his right shoulder with Arnold Ribbon which affected his capacity to undertake strenuous repetitive use of his right arm, heavy lifting, work above shoulder level, and that he was unfit for his pre-injury employment, but had a capacity for employment subject to the imposition of restrictions.[39]
[39] D2/DCB 14-15
71 Mr Shannon was provided with material relevant to vocational assessments of the plaintiff and also some medical material on which he was asked to make comment.[40] I will return to the subject of the plaintiff’s fitness for suitable employment later in these reasons.
[40] D2/DCB 16-19 and 26-31
72 It seems to me that there is unanimity in the ranks of the medical practitioners who have examined the plaintiff and who have offered opinions on causation, that the plaintiff suffered an injury to his right shoulder in his employment with Arnold Ribbon, and suffered a further injury to his right shoulder in his employment with AG Staff.
73 The opinions of Dr Middleton and Mr Kudelka appear to me to be the most compelling. I found the evidence of Dr Middleton to be very edifying, in that he was able to identify the injury suffered by the plaintiff by having regard not only to his own examination and clinical findings, but from other medical reports and x-rays which were provided to him for his assistance.
74 Dr Middleton provided a very plausible thesis, which I accept. That is, that the plaintiff suffered an injury to his right shoulder on which Mr Dooley undertook surgery. It is more likely than not that the surgery stabilised the acromioclavicular joint, and that the x-ray on which Dr Middleton was asked to pass comment demonstrates obvious instability which is more likely than not to be consistent with the further injury suffered by the plaintiff in his employment with AG Staff.
75 Mr Kudelka was not as convinced of that thesis. It seems to me that nonetheless, his opinion, and that of Mr Hooper, Mr Jones and Mr Shannon, confirm that essentially the plaintiff suffered injury with Arnold Ribbon. Further, this injury impaired the function of his right shoulder and resulted in consequences in terms of pain and suffering and loss of earning capacity which were aggravated in his employment with AG Staff.
76 Mr Batten and Mr Hangay submitted that I must identify the injury with some precision in this case, but I fail to see why that is so. It is clear enough to me that the legislature intended that a trial judge, such as myself, must firstly identify the injury in order to then identify the body function which has been impaired. I do not see that as requiring me to be so precise. I ask rhetorically: Why do I need to take that step when the evidence of eminent surgeons, which I have accepted, is that the injury occurred to the plaintiff’s right shoulder which was the subject of an aggravation?
77 It is abundantly clear to me that the surgeons to whom I have just referred had no difficulty identifying the injury. In those circumstances, I see no reason why it is incumbent upon me to identify the plaintiff’s injury precisely. It would be another matter if the injury could not be identified because that will inevitably lead to difficulty in identifying the body function which has been impaired. That is plainly not the case here.
The Consequences
78 Prior to suffering injury to his right shoulder in his employment with Arnold Ribbon, the plaintiff had been employed for nine years without incident in New Zealand, and after his arrival in Australia for four years, with Arnold Ribbon. On any view, that is a substantial working history for a man employed in a trade in which the risks of suffering musculoskeletal injury must be tolerably high.
79 It also demonstrates a man who was committed to work and who went about his work adequately enough to be able to retain that employment. There is certainly nothing said by Arnold Ribbon to suggest that the plaintiff was other than a respected worker up until the time when he was injured.
80 I accept the plaintiff’s evidence that he returned to work with Arnold Ribbon between August 2003 and July 2004.
81 Mr Batten cross-examined the plaintiff about a condition affecting his nose, for which he had surgery in March 2004. The plaintiff said he was off work for about three weeks and then returned to work. He then received the news about his mother being in a parlous state of health in Poland, and left to go and see her. He did not return to work with Arnold Ribbon thereafter.[41]
[41] Transcript 50
82 Mr Batten referred me to a statement of Mr Yoannidis, and a letter he wrote to the plaintiff. Both of these are critical of the plaintiff and accused him of having abandoned his employment around the time when he was due to go back onto light duties – from 20 August 2004.[42] The practice in proceedings commenced by Originating Motion is that the evidence was adduced by affidavit. The mere production of the statement and a letter do not carry with them the evidentiary value of the matters referred to in the statement and the letter, if I had been deposed to in an affidavit.
[42] D1/DCB 81 and 97
83 I accept the plaintiff’s evidence that he made attempts to find suitable employment, resulting in him being employed by six employers, before he secured employment with AG Staff. I accept his evidence that he found the work which he was required to undertake with those six employers difficult, to the extent that he was absent from his employment from time to time due to the incapacity caused by his injured right shoulder.
84 I accept the plaintiff’s evidence deposed to in his affidavits, that not only was he having difficulty using his dominant right arm in the pursuit of his trade, but that he was having difficulty pursuing his love of gardening, swimming and bike riding.[43]
[43] PCB 22 and 27-28
85 I also accept the compelling evidence of Dr Middleton. On his assessment, he would have imposed restrictions on the plaintiff’s employment after the occurrence of the injury suffered in employment with Arnold Ribbon. Further, in his opinion, the plaintiff suffered an injury which required surgery performed by Mr Dooley, resulting in incapacity for work from that employment which would continue for the foreseeable future.
86 The opinion of Dr Middleton is entirely consistent with what actually occurred. The plaintiff was never free of pain, resulting from the incapacitating nature of the injury to his right shoulder. This was evidenced by his inability to return to work with Arnold Ribbon, and his inability to retain his employment with the subsequent six employers, and also his inability to engage in recreational activities of the kind referred to above.
87 However, it would appear that the plaintiff did have some capacity to engage in light work, absent the very arduous nature of the tasks which would be expected of a fitter/welder. However, he found that even working on light duties, which was the case with some of the employers with whom he worked after leaving Arnold Ribbon, was too difficult for him.
88 I find that by that time the plaintiff commenced his employment with AG Staff, he had suffered an injury to his right shoulder which required surgery, which became the setting for pain and incapacity for work he subsequently experienced.
89 I accept the plaintiff’s evidence that he did suffer an injury with AG Staff in a specific incident, and subsequently, he suffered increased pain and incapacity for work as a result, by inference, further incapacity with respect to domestic and recreational pursuits.
90 The further injury resulted in a further impairment of the function of the plaintiff’s right shoulder, and produced an incapacity for work which persists to the present time.
91 I accept the plaintiff’s evidence that his spoken English is modest. He is unable to read much English, and does not have any other qualifications by education, training or experience.
92 I have read the vocational material tendered by Arnold Ribbon.[44] I have viewed the film which was shown to the plaintiff of a number of occupations which it is said that the plaintiff could capably undertake. I have also paid regard to the reports of Mr Shannon where he was asked to offer an opinion on the plaintiff’s suitability for particular occupations.
[44] D1/DCB 33-55
93 Mr Shannon made a prophetic statement in his report dated 23 August 2010. He was asked to comment on job advertisements which had been provided for his consideration. The best he could do was to say that the plaintiff might be able to work as a workshop supervisor, but he considered the other occupations to be inappropriate. He then said the following:
“Therefore, I think that he could perform some of these tasks from the purely physical point of view, although the chances of him obtaining such employment, having been out of the workforce now for more than four years, is slim.”[45]
[45] D1/DCB 24-25
94 The point made by Mr Shannon I think hits the nail on the head. The plaintiff is probably capable of performing some of the tasks in his trade, and indeed, some of the tasks of no doubt many jobs of a semi-skilled or non-skilled nature. However, I find that the nature and extent of the impairment of function of the plaintiff’s right shoulder, together with his poor language skills and his age, render him unfit for suitable employment.
95 I reject the opinion of Ms Cath Hughes, occupational therapist, in the report of “healthe.work” relied upon by Arnold Ribbon.[46] Miss Hughes concluded that the plaintiff could work as a guardhouse attendant, machine operator, a small appliance and repair technician or weighbridge operator. I was shown a video of what is involved in those jobs. Apart from the machine operator’s job, there was nothing to see in what a guardhouse attendant, small appliance and repair technician or weighbridge office operator actually did. Essentially all I saw was some movement by some individuals doing almost nothing in terms of identifiable tasks. I do not accept that the video was a true representation of what those jobs would involve, because if the video is a true representation, then the persons undertaking those jobs were doing almost nothing.
[46] D1/DCB and 33-55, and in particular 35-39
96 I should add, for the sake of completeness, that the current medical opinions point to the plaintiff having a residual capacity for work. It is only Dr Petrovic who was of the opinion that the plaintiff is incapacitated for all work.[47] She did not elaborate on the basis of the opinion. It is clear from Dr Petrovic’s recounting of all of the treatment that the plaintiff has had over the years that he has gone through a significant regime of medical treatment and has literally come out the other end no better. In those circumstances, I think the opinion of Dr Petrovic is to be respected, because she is probably in the best position to understand how the plaintiff is functioning in an overall sense.
[47] PCB 59
97 At present, and ignoring how the plaintiff’s right shoulder injury occurred for one moment, I am satisfied that the plaintiff suffered a compensable injury in his employment with Arnold Ribbon and AG Staff, that the injury resulted in an impairment of the function of his right shoulder which is permanent, and that the consequences to him comfortably meet the statutory test for pain and suffering consequences, loss of earning capacity consequences after the relevant comparison is made.
98 The next issue is whether I accept the submissions made by Mr Jordan, or those of Mr Batten and Mr Hangay relevant to the legal principles that ought to apply.
The Legal Principles
99 Mr Jordan submitted that if I am satisfied that the plaintiff suffered a compensable injury with Arnold Ribbon; that he suffered a compensable injury with AG Staff; that the evidence supports the conclusion that the plaintiff has suffered a serious injury, and that the employment with Arnold Ribbon and AG Staff materially contributed to the plaintiff suffering a serious injury, then I can grant leave to the plaintiff to bring a common law proceeding against both Arnold Ribbon and AG Staff.
100 Mr Jordan principally based the submission upon a number of telling observations made by Ashley JA in Grech v Orica Australia Pty Ltd.[48] His Honour commenced by reviewing a number of observations made by the Court of Appeal in Barwon Spinners Pty Ltd v Podolak,[49] He then made the following observation:
“Most of what the court said in Barwon Spinners in the passages which I have cited should admit of no confusion. It is for a plaintiff to establish that he or she suffered compensable injury on or after 20 October 1999, and to sufficiently establish what that injury was. Only then will it be possible for a plaintiff to establish that such injury was, in its consequences, serious injury as defined. It is not enough that a plaintiff establish that he or she developed, on or after 20 October 1999, serious injury consequences of compensable injury sustained before that date.”[50]
[48] (2006) 14 VR 602
[49] (2005) 14 VR 622
[50] At 614, the reference by his Honour to injury on or after 20 October 1999 is a reference to the particular facts of the case on appeal.
101 His Honour then reviewed a number of relevant provisions of the Act for the purpose of demonstrating that some of the language used by the Court of Appeal in Barwon Spinners is not the words of the Act.
102 It is the more general observations of his Honour which are of relevance to the application before me and the submissions made by Mr Jordan. He referred to the language used by the Court of Appeal in Barwon Spinners, and in particular, the use of the words “linked and “referable” as words of causation, and he then said:
“One can understand, in that context, reference to distribution of ‘the injury’ – it was not described in the language of pathology, but rather as a syndrome – over the period of the worker’s employment. One can also understand a description of ‘the injury’ as if it were an indivisible whole, and the expressed impossibility of ‘linking’ it to employment after, but not before 20 October 1999. But none of that addresses the difference which exists between injury and its consequences.
Returning to that difference, it cannot be doubted that compensable injury may be sustained which does not have present consequences yielding an entitlement to compensation. Indeed, an injury may never have such consequences. Again, it is quite possible – it will be a matter for determination according to the evidence in the particular case - that each of two or more compensable injuries is a legally sufficient cause of the same consequences.[51]
[emphasis added]
[51] at 616
103 The latter observation is apposite to the evidence in this application. I have found that the evidence supports the conclusion that with each employer the plaintiff suffered a compensable injury. The first employment materially contributed to consequences which were worsened by the second employment, which also materially contributed to the ultimate consequences, which amount to satisfaction of the statutory test for pain and suffering and loss of earning capacity.
104 His Honour then examined the words of the Act, and said the following:
“The second of those propositions turns on the words of the Act. Most often, a consequence is compensable if it ‘results from or is materially contributed to by’ an injury. The concept of ‘material contribution’ was a later addition to workers compensation legislation. But even before that addition, the causal connection required by the words ‘results from’ had been construed to require much less than that injury be the sole cause of a consequence. It is argued by Hill & Bingeman that, given such a history of construction, the causal requirement imported by ‘material contribution’ should be taken to be a lesser requirement still than that encompassed by decisions construing the words ‘results from’. It is unnecessary to say whether that proposition should be accepted. It is enough to say that the Act, as with its predecessors, contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.”[52]
[emphasis added]
[52] at 616-617
105 The critical importance of what his Honour said ties in with what I quoted from his Honour’s judgment earlier; that is, that if the consequences to the plaintiff in this application have been materially contributed to by the compensable injuries, then in accordance with his Honour’s reasoning, that is sufficient, as a matter of law. On the facts as I have found them to be, both employers are responsible for the plaintiff’s present pain and suffering consequences and loss of earning capacity consequences.[53]
[53] His Honour gave examples of the application of reasoning, at 618, when dealing with the particular facts of the case on appeal (paragraph 64), and two other “factual variants” (paragraphs 65 and 66).
106 His Honour observes that the foregoing does not mean that some part of the consequences was caused by one of the compensable injuries and not the other.[54] However, the evidence in this application clearly demonstrates that the plaintiff suffered a compensable injury with both employers to a significant degree, such that I have had no difficulty in concluding that each compensable injury has materially contributed to the plaintiff’s present pain and suffering consequences and loss of earning capacity consequences.
[54] at 619
107 Mr Batten and Mr Hangay both submitted that I should reject the submission made by Mr Jordan and his reliance upon Grech. Mr Batten, in particular, submitted that there was nothing in this application which distinguished it from others where the reasoning in Petkovski had been applied.
108 However, Ashley JA did not ignore Petkovski, but specifically referred to it in the context of the peculiar facts of the case on appeal. More particularly, whether, on those facts, the consequences contended for by the plaintiff resulted from, or were materially contribute to, by the injury sustained before 20 October 1999.
109 In the context of that analysis, his Honour referred to Petkovski in a footnote, in which he observed:
“That is, the situation should not be considered akin to the situation
considered in Petkovski … .”
110 As I see it, the distinction between Petkovski on the one hand, and Grech on the other, is that the facts on which Petkovski was based arose from a transport accident and not an industrial accident. A comparison between the Transport Accident Act 1986 and the Act demonstrate that what his Honour referred to as the language of the Act and its history of interpretation, is absent from the Transport Accident Act 1986.
111 I think it is understandable why his Honour analysed the Act and interpreted s.134AB in the way he did because it occurs to me that, and I say this with the greatest respect to his Honour, what appears to have underwritten his analysis and interpretation of s.134AB is that it must be looked at through the prism of the Act and not in a vacuum, as if s.134AB is a stand alone provision without any relationship to the Act as a whole.
112 The principle referred to in Petkovski is seductive and it is understandable why it has been applied in industrial accident cases brought under s.134AB. It is based upon the common law principles relevant to the assessment of damages where a person seeking damages had a prior condition which was aggravated by an incident upon which the common law claim is based.
113 I note that in Guppy v VWA and Bendigo Access Employment Inc,[55] Emerton AJA held that an analysis had to be made of the extent of impairment of a body function before and after the relevant injury, and the additional impairment had to involve serious long-term impairment of body function. Her Honour then observed in a footnote what I believe to be a distinction which her Honour considered to be apparent between Petkovski and Grech:
“Their Honours observed that the Transport Accident Act 1986 (Vic) did not affect the long-established principle that a person injured could be compensated for, but only for, such disabilities as were proved to have resulted from the relevant accident. There appeared to be some question in the mind of the learned judge below as to whether Grech v Orica Australia Pty Ltd (2006) 14 VR 602 … rather than Petkovski was the authority that he should follow. While it was clearly appropriate for the learned judge to follow Petkovski, there is no inconsistency between Petkovski and Grech.”
[55] [2010] VSCA 164
114 It appears to me to follow that her Honour did not intend to suggest that Grech is not good law, but to recognise that it is and that it applies in the particular circumstances referred to by Ashley JA.
115 Having analysed the facts of this application, and having analysed the authorities I have just referred to, I consider that I am bound by the reasoning of Ashley JA. I should add that that the other members of the Court in Grech, Buchanan and Chernov JJA, both agreed with Ashley JA.[56]
[56] Buchanan JA at 604 and Chernov JA at 604
Conclusion
116 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s.(16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the Arnold Ribbon and AG Staff.
117 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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