Ford v Baytech Industrial Holding Pty Ltd
[2010] VCC 913
•5 August 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-04152
| Margaret Ford | Plaintiff |
| v | |
| Baytech Industrial Pty Ltd | First Defendant |
| and | |
| Just Jeans Holding Limited | Second Defendant |
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| JUDGE: | S. Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 July 2010 |
| DATE OF JUDGMENT: | 5 August 2010 |
| CASE MAY BE CITED AS: | Ford v Baytech Industrial Holding Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0913 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s134AB(16)(b) – injury to the left shoulder and neck – psychiatric injury – loss of earning capacity – pain and suffering
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Tobin QC | Shine Lawyers |
| With Mr B. Anderson | ||
| For the Defendant | Ms M. Britbart | Lander & Rogers |
| HER HONOUR: |
1 The plaintiff seeks leave under section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of an injury to the left shoulder and neck and a psychiatric injury suffered during the course of her employment, through the first defendant (a labour hire firm), with the second defendant, on 29 January 2003. The injury occurred as she was doing picking and packing and tried to lift a skid full of clothes back onto the skid rail. The skid, rail and clothes fell on her and she hit the ground heavily on her left side. She suffered an injury to the left shoulder by way of a full thickness rotator cuff tear and an aggravation of pre-existing asymptomatic degenerative changes in the cervical spine, resulting in a permanent impairment of the function of the left upper limb. The psychiatric impairment relied upon is that of a Mild Adjustment Disorder with Mixed Anxiety and Depressed Mood.
2 Mrs Ford is 60 years old. She left school at the age of 16, married and raised three children. All the jobs she did when her children were young were unskilled and short-term. In 1997 she completed a Certificate II course in Office Administration. In the late 1990’s she completed a number of short computer and accounting courses as well as a course in medical terminology, In 2002 she completed a Certificate II course in Information Technology.
3 In November 2002, she obtained work with the second defendant as a picker/packer. After her injury, she continued working and had physiotherapy but her neck and left shoulder symptoms worsened and in April 2003 she sought medical treatment. She had surgery to repair the torn rotator cuff in December 2004, which gave some improvement in her pain and mobility in the left shoulder. However she has been left with persistent constant left shoulder pain and neck pain for which she cannot take medication because of a variety of allergic conditions. She also suffers from numbness in the left hand affecting the two middle fingers in particular.
4 The parties agree that the plaintiff’s without injury earnings are in the sum of $61,098. Sixty percent of this figure is $36,659 per annum or $704 per week. The plaintiff says that even if she were able to work full-time, which she cannot, as a receptionist, general clerk, admissions clerk or inquiry clerk, she would not earn 60 per cent of her without injury earnings.[1]
[1] Counsel for the plaintiff noted that the salaries for positions outlined at page 60 of the Defendant’s Court Book (“DCB”) upon which the defendant relied were 2005 figures and needed to be adjusted upwards by 15.3% to 2009.
5 The defendant agrees that the plaintiff suffered an injury to the neck and left shoulder in the incident but says that she has improved somewhat since her shoulder surgery and retains a residual physical capacity for full-time desk- type clerical work that does not involve significant or overhead lifting. The defendant makes a number of further submissions. First, it says that but for the plaintiff’s depressive symptoms, she would be able to do clerical work full- time. Secondly, it says that her work history prior to her injury was very sporadic and that it was doubtful that she would have continued working full- time and earning at that rate until the age of 65. Thirdly, it says that little reliance should be placed on the Evidex report of Ms Henderson because the author was not provided with the full list of the courses undertaken by the plaintiff. Finally, it says that the pain and suffering consequences of the plaintiff’s physical injury do not meet the statutory threshold.
Plaintiff’s evidence
6 At the hearing, the plaintiff said she is allergic to codeine and cannot take Nurofen or Panadol due to side-effects. She still looks in the papers for jobs and has sought employment in the past three years. She attended an interview at a nursing home and told them about her injury but said that Dr Tang did not give her clearance for this job. She said that she made inquiries about other positions, such as answering phones, but did not obtain any other interviews because she told her prospective employers about her injury.
7 She agreed that prior to 2002 she had done a number of courses in an effort to improve her skills before seeking employment. She did short courses in MYOB, word processing, office administration as well as a 12 week course in medical terminology. She agreed that prior to 2002 she had not worked anywhere for long, and was also getting Centrelink benefits. She agreed that she had make a few return to work efforts in late 2003 and October 2004. She agreed that since her shoulder surgery she is able to lift the left arm, albeit with pain, without using her right arm for support, and that there is less pain than before. She does not lift heavy things such as saucepans. She has been on the disability support pension since 2007. She said that when she inquired about some jobs, she found that they entailed tasks which were not suitable for her. For example, when she inquired about a job answering phones, she discovered that she would also be required to do some packing.
8 She did not know if her data entry, computer or switchboard skills are up to date but said she would like to be able to do some light work. She said that her left hand feels numb and heavy and she cannot separate the two middle fingers, and can only type with two fingers on that hand. She said that she had not been offered any retraining courses since her injury. She said that before getting her job picking and packing, she only had short contracts doing office work and was never asked to stay on by the employer. On the other hand, when she worked as a picker/packer at Just Jeans, she was twice asked to stay on and was invited to seek permanent work with them.
9 She said that she suffers constant shoulder and neck pain and her sleep is disturbed every night. She cannot vacuum or clean the kitchen, or lift a heavy pan, or use a pressure cooker. She used to enjoy gardening and mowing but can no longer do either. She would like to help her elderly parents but cannot do anything for them. She said no rehabilitation provider had identified any job to her in the past 6 years which she could do.
Radiology
10 The relevant investigations include X-ray of the lumbar and sacral spine on 30 April 2003, CT and MRI of the cervical spine on 26 May 2003, left shoulder ultrasound on 24 June 2004, x-ray of the left shoulder on 23 July 2004 and MRI of the left shoulder on 30 July 2004. There is agreement in the medical reports that the MRI of the left shoulder revealed a partial tear in the supraspinatus tendon of the left shoulder, and that the CT and MRI of the cervical spine revealed central disc protrusion at C3/4, a broad based bulge (worse on the left than the right) at the C5/6 level and a left paracentral disc bulge with endplate osteophytes and mildly flattened anterior aspect of the cord at C6/7.
Diagnosis
11 Only Mr Dooley found signs of abnormal illness behaviour on examination, did not diagnose radiculopathy and, diagnosed a chronic pain syndrome which was responsible for the constancy and intensity of her ongoing pain.
12 Leaving aside the opinion of Mr Dooley,[2] the weight of expert opinion, (from Dr Tang,[3] Dr Verrills,[4] Mr Pullen,[5] Mr Hunt,[6] Mr O’Brien,[7] Mr Thien,[8] Mr Kossmann,[9] and Mr Kudelka[10]) including neurosurgical opinion concerning the presence of radiculopathy, is to the effect, and I therefore find, that as a result of the incident the plaintiff suffered a tear in the rotator cuff of the left shoulder and aggravation of degenerative changes of her cervical spine in the form of C5/6/7 radiculopathy and dyesthesia in dermatomes C5/C6/C7.
[2] See his reports at DCB page 37-44.
[3] See his report at Plaintiff’s Court Book (“PCB”) page 35A.
[4] See his report at PCB page 36.
[5] See his report at PCB page 42.
[6] See his report at PCB page 53.
[7] See his report at PCB page 84.
[8] See his report at PCB page 107.
[9] See his report at PCB page 128.
[10] See his report at DCB page 34.
13 Dr Tang considered that the plaintiff was suffering from depression, while Dr Kaplan, psychiatrist, examined the plaintiff in June 2010 and reported[11] that she was suffering from Mild Adjustment Disorder with Mixed Anxiety and Depressed Mood “as a result of her injury and its impact upon her life”. Dr Kaplan felt that her work capacity would be largely determined by her physical condition, although she would be affected by difficulties with memory and concentration, loss of confidence and a lowered frustration tolerance.
Physical capacity for employment
[11] See his report at PCB page 137.
14 All the experts, including Mr Dooley, agreed that due to her physical restrictions she would be permanently unable to return to her pre-injury duties. Mr Kossman and Mr O’Brien concluded that the plaintiff was permanently incapacitated for all employment. Mr O’Brien felt that this incapacity was due to chronic pain in the neck, shoulder and left arm along with non-organic factors. However, Mr Kossman felt that her incapacity flowing from the organic injury to the left shoulder and cervical spine. He noted the presence of muscle wasting in the deltoid muscle of the left side.
15 In May 2005, Mr Kudelka concluded that due to her organic injury to the left shoulder and cervical spine she was physically capable of doing clerical, office or similar work, “avoiding strains on the left arm”.
16 In June 2005 and January 2006, Mr Pullen concluded that the plaintiff was physically capable of some type of clerical employment or light duties involving no work above shoulder height, no lifting more than 5 kgs, no repetitive work and reduced hours commencing with eight hours per week.
17 In June 2010 Mr Dooley concluded that “from a purely orthopaedic viewpoint”, the plaintiff would be capable of carrying out the work of a desk information officer, clerk, medical receptionist and teacher’s assistant but not as a teacher’s aide, which required an ability to look after children with significant physical disability or behavioural problems.
18 In June 2010, Dr Kaplan, psychiatrist, reported that the plaintiff had suffered depression and anxiety as a result of the impact of the injury on her life, but that her capacity to return to pre-injury or alternative employment would be “largely determined by her physical condition”.
19 In July 2010, Dr Tang, the plaintiff’s treating general practitioner reported that the plaintiff had consistently been quite restricted on examination of her range of movement in the left arm. He noted that she had also developed a moderate depression and anxiety disorder after her injury which made her unable to cope with return to work programmes. He felt that from a physical point of view she could do light duties, preferably desk duties, involving minimal or no lifting. However, he felt that her anxiety and depressive issues were also significant barriers to any further employment.
20 At the hearing, Dr Tang said that the plaintiff developed a depressive condition as a result of her chronic pain and physical disability flowing from the injuries to the left shoulder and cervical spine. He had vetoed her proposed employment as an overnight assistant at an aged care facility because she could not assist with lifting or carrying a patient. He felt that work as a pamphlet deliverer would not be appropriate if she had to lift bundles of pamphlets onto trolleys. He said that she had multiple allergies to painkillers and anti-inflammatories and could not take them. He said that he would never recommend that an injured patient work through pain, as the experience of pain demonstrates that the body’s limits have been reached.
21 He felt there were very few jobs the plaintiff could do full-time and that if such a job existed it would need to be desk-based, not require any significant use of the left hand or arm and no significant lifting above shoulder height. He felt that the parasthesia in the left hand would affect her doing keyboard work. He noted that limited keyboard work would need to avoid over-use of the right side, as she had already developed a tennis elbow in the right arm due to over-using it. Taking her physical and psychological injuries together, he felt she was capable of working part-time only. He agreed that factors other than her physical injuries contributed to her depressive symptoms. He said that although he recommended psychological treatment and medication she did not take the medication. He felt that her general motivation to look for work has been reasonable and that she told him she looked in the papers and on the internet for work but was afraid that a return to work would exacerbate her condition. He felt that this attitude was understandable given the chronicity of her symptoms. He had not been told that she had rejected any offers of employment. He felt that she needed retraining and also a nurturing culture to work in. He felt that clerical based duties would be appropriate but that she would need psychological support to manage such work.
Vocational assessment reports
22 On 9 May 2005, a vocational assessment report by Andrew Hawkins noted that the plaintiff was unable to recall her exact employment history but gave information concerning employment experience in a wide variety of areas. On the basis of this experience and what he identified as her transferrable skills, as well as her physical restrictions, Mr Hawkins concluded that she had the following vocational options: receptionist; general clerk; admissions clerk; inquiry clerk. Mr Hawkins did not feel that given her physical restrictions she would be able to work as a therapist assistant.
23 Ms Katrina Henderson, occupational therapist, provided a vocational assessment report dated 9 June 2010 in which she noted that the plaintiff’s clerical jobs prior to 1995 involved mostly paper-based duties, using a typewriter, answering telephone and filing and processing bank vouchers. She noted that the plaintiff worked doing computer based data entry for six months in 1995 and clerical work doing payroll duties in the late 1990’s and had completed Certificate 11 in Information Technology and a Level 1 Auslan Sign Language Certificate. She noted that from 2002 the plaintiff worked full-time in the clothing industry picking and packing. She concluded that the plaintiff’s Certificate 11 qualifications are almost the lowest available and effectively “restrict her to entry level clerical positions”. She felt that the plaintiff’s experience was predominantly in unskilled manual work and she had very limited office experience, had not worked in a clerical role for at least ten years, and had very basic computer skills only.
24 The report noted that the positions of factory work, housekeeper or leaflet and newspaper deliverer were unsuitable for the plaintiff because of her physical restrictions. The report also concluded that the plaintiff does not have the contemporary work experience, skills or functional capacity for the positions of clerk, office assistant or data entry operator. The report analysed all ANZSCO occupations for which no specific qualifications or work experience is required including the positions of retail sales assistant, service station console operator, telemarketer, ticket seller, filing or registry clerk, mail clerk, kitchen hand, waiter, children’s crossing supervisor, product examiner/quality controller/grader/tester and was unable to identify any suitable alternative occupation for the plaintiff in the light of the plaintiff’s limited transferable skills for work and reduced functional capacity.
25 The report concluded that even with further occupational rehabilitation or retraining the plaintiff would not find employment because of her age, pain, pain-related impairment of concentration and impaired ability to use her left arm for computer use in any retraining.
Legal Principles
26 The psychological or psychiatric consequences of a physical injury are not to be taken into account in an application confined to paragraph (a) of the definition of “serious injury”.[12] Accordingly, so far as the evidence allows, the Court must identify and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or physical basis. Where the Court is unable to do so, ordinarily a plaintiff must fail, since the Court cannot be satisfied on the balance of probabilities that the organically-based pain and suffering consequences satisfy the statutory criterion (“more than significant or marked, and….at least very considerable”).
[12] See section 134AB(38)(h) of the Act.
27 However, where the evidence is consistent with the plaintiff having suffered both physical and psychiatric injury, if the nature of the medical evidence permits the conclusion that the consequences of the physical injury constitute a serious injury, then no stripping away may be required.[13]
[13] Biserka Zivolic v Hella Australia Pty Ltd – BC200705132, 3750 of 2006, per Redlich JA at [19]; Shock Records Pty Ltd & Anor v Matthew James Jones [2006] VSCA 180 per Bell, A.J.A. at [68-[72].
28 The combined effect of sections 134AB(16), (38)(d),(h) and (i) of the Act is that the plaintiff must establish on the balance of probabilities that she has suffered a work-related permanent severe mental or permanent severe behavioural disturbance or disorder. The consequences of her mental illness or disturbance in terms of pain and suffering and loss of earning capacity must, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly be described as being more than serious to the extent of being severe. The psychological consequences of a physical injury as well as the physical consequences of a mental disorder may be taken into account in determining whether he has suffered a serious injury within the terms of sub-paragraph (c) of the definition of “serious injury” in section 134AB(37) of the Act.
29 In order to make out a “serious injury” within paragraph (a) of the definition in section 134AB(37) of the Act, the plaintiff must establish that she has suffered a permanent serious impairment or loss of a body function whose consequences to her in terms of loss of earning capacity and pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function,[14] fairly described as being more than significant or marked, and as being at least very considerable.[15]
[14] See section 134AB(38)(b) of the Act.
[15]30 Decisions as to whether an injury is serious involve elements of fact, degree and value judgement.[16] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[17] On the authorities,[18] the proper analysis involves: establishing that the plaintiff suffered compensable injury after 20 October 1999; establishing what that injury was; determining the consequences which the plaintiff alleges have resulted and that those consequences were “materially contributed to” by the compensable injury; and determining whether those consequences meet the “very considerable level” in terms of pain and suffering and/or loss of earning capacity.
[16]
[17] See Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58].
[18] Ibid, [80].
31 The whole of the evidence before the court should be considered, not just the medical evidence.[19]
[19] Ibid, [85]. See also Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 at [170].
32 Where the plaintiff relies on impairment comprising the aggravation of a pre- existing condition, the plaintiff must establish that the impairment constituted by the aggravation amounts to a “serious injury”.[20]
[20] Barwon Spinners Pty Ltd & Ors v Podolak [2002] VSCA 33; Petkovski v Galletti (1994) 1 VR 436.
33 Where loss of earning capacity is alleged, leave to issue proceedings is not to be granted unless the plaintiff establishes that, as at the date of the hearing, as a result of the injury she has suffered a permanent loss of earning capacity of 40% or more.
34 Section 134AB(38)(g) of the Act requires the plaintiff to establish that she would not, given her capacity for suitable employment[21] after the injury and, where applicable, the reasonableness of her attempts to participate in rehabilitation or retraining, have the capacity for any employment which, if exercised, would result in her earning more than 60% of her earnings, “as determined in accordance with paragraph (f) had the injury not occurred”.
[21] The definition of “suitable employment” was amended by s.74(3) of the Accident Compensation Amendment Act 2010. The Second Reading Speech says at p.4625: “The references to ‘suitable’ employment’ throughout the Act were always intended to capture a wide range of employment, vocational training and education arrangements through which workers may be returned to gainful employment. This concept has been obscured through restrictive interpretation by the courts of what suitable employment entails, most recently in the case of Smorgon Steel Tube Pty Ltd v Majkic. This undermines fundamental controls in the scheme as well as the core objectives of the Act, including the common-law economic loss gateway and return- to- work obligations”.
35 The definition of suitable employment is set out in section 5(1) of the Act, which provides:
“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 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.”
36 Where a plaintiff claiming to have suffered serious injury consequences in terms of both pain and suffering and loss of earning capacity satisfies the loss of earning capacity requirements of s.134AB, that plaintiff is entitled to claim damages for both loss of earning capacity and pain and suffering. It is therefore not necessary for the Court in those circumstances to determine whether the plaintiff has established the pain and suffering limb of her application.[22]
Findings and reasons
[22] See Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority [2009] VSCA 170 per Redlich JA and Beach AJA at [63].
37 In the light of Dr Kaplan’s report and the evidence of Dr Tang, I am not satisfied that the plaintiff’s Adjustment Disorder, in terms of its loss of earning capacity consequences, constitutes a severe mental or behavioural disturbance or disorder.
38 I turn to the claim in relation to the impairment of the left upper limb.
39 I found the plaintiff to be a very straightforward witness and I accept her evidence as to the symptoms and restrictions flowing from the left upper limb impairment as well as her efforts to make inquiries about alternative employment. In particular, I note that in spite of the courses undertaken by the plaintiff in the late 1990’s and in 2002, the plaintiff was unable to secure any ongoing clerical work but in fact was only able to secure ongoing heavy labouring work. I accept her evidence that Just Jeans invited her to apply for a permanent position as a picker/packer, and that, but for her injury, she would have continued to work full-time as a picker/packer.
40 It is clear on the evidence that as a result of the permanent impairment of the function of the left upper limb the plaintiff is permanently incapacitated for her pre-injury employment. I consider that the weight of the expert evidence is to the effect that leaving aside any psychological reaction to her physical injury, the plaintiff is permanently incapacitated for all but light employment as a result of the permanent impairment of the left upper limb. I accept the evidence of her treating general practitioner, Dr Tang, that she is fit for such work only on a part-time basis. His conclusion that her inability to work full- time is due to a combination of her physical and psychological injuries does not prevent the conclusion that, leaving aside her psychological injuries, the physical restrictions are a substantial contributing cause to her inability to work full-time. On the figures before me, however, I note that even if the plaintiff could work full-time as a receptionist, she succeeds in establishing the required loss of earning capacity.
41 I turn to the other positions suggested by the defendant (and recommended by Mr Hawkins in his vocational assessment report), those of general clerk, admissions clerk and inquiry clerk. The main age group is for the first position is 35 to 44 years, and 25-34 for the remaining positions. The plaintiff is 60 years old. The report of Ms Henderson squarely addressed the difficulties faced by the plaintiff: her work experience is mainly in unskilled manual work, her clerical work experience is very old and did not involve a high degree of skill; her certificates which are also old are almost the lowest available; she has very basic computer skills and she has limited ability to use her left arm for computer use in any retraining or in any job. I also note that in spite of the courses she undertook in the late 1990’s and up to 2002, the plaintiff was only able to secure ongoing work of a heavy manual nature. I prefer the conclusions of Ms Henderson to those of Mr Hawkins and find that the remaining occupations are not suitable alternative employment options for the plaintiff in the light of her limited transferable skills and reduced functional capacity.
42 Having regard to the plaintiff’s educational background and work experience, I consider that there is no realistic prospect of the plaintiff obtaining suitably light work in the foreseeable future that is both within her physical capacity and the skills sets she has currently or could realistically acquire. I am satisfied that the plaintiff has made reasonable efforts to rehabilitate herself and that she is not a suitable candidate for further retraining due to her physical restrictions. After all, the jobs she would be retraining for would be light desk jobs suited to persons able to use both arms freely. However, she has chronic pain in the left arm and shoulder, an over-use syndrome in the right elbow, and therefore a very limited capacity to do keyboard work and other two-handed activities which are involved in clerical work.
Conclusion
43 It follows that leave is granted to the plaintiff to bring proceedings for the recovery of damages in respect to the injury to the left upper limb suffered on 29 January 2003 during the course of her employment. I reserve the question of costs.
| See section 134AB(38)(c) of the Act. Fleming v Hutchinson (1991) 66 ALJR 211. |
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