Ford v Woolworths Limited
[2016] VCC 1415
•28 September 2016
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00366
| JENNY FORD | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 3 August 2016 | |
DATE OF JUDGMENT: | 28 September 2016 | |
CASE MAY BE CITED AS: | Ford v Woolworths Limited | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1415 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left shoulder – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Richter v Driscoll [2016] VSCA 142
Judgment: Leave granted to bring proceedings for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell with Mr S Jurica | Slater and Gordon Ltd Lawyers |
| For the Defendant | Mr P A Scanlon QC with Ms F Ryan | Thomson Geer Lawyers |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff to her left shoulder in the course of her employment with the defendant on 23 September 2013 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the left shoulder.
5 The plaintiff relied upon two affidavits sworn 25 September 2015 and 28 July 2016[1] and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
[1]Exhibit “A”
Outline of Section 134AB
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
11 Sub-sections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Sub-section (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 Sub-section (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] in reaching my conclusions.
[2](2005) 14 VR 622
15 The defendant concedes the plaintiff suffered an injury to her left shoulder on 23 September 2013, but does not concede that such injury meets the requirements of sub-paragraph (a) of the definition of “serious injury” referred to above.
Compensable physical injury
16 It is common ground that a compensable injury occurred in the course of the plaintiff’s employment on the date alleged, in that she was attempting an awkward lift of some boxes of chicken from a position above shoulder height.
17 Thereafter, the plaintiff came under the care of her local general practitioner, Dr De Villiers, who, in turn, referred her to orthopaedic surgeon, Mr Andrew Byrne, who saw her for the first time on 21 October 2013. After examining radiological evidence, he diagnosed a full-thickness tear in the supraspinatus tendon and recommended surgery.
18 On 19 November 2013, the plaintiff had a left rotator cuff decompression and repair.
19 Following this procedure, the plaintiff underwent physiotherapy, but recovery was slow and she suffered from a complication of a frozen shoulder. This condition was treated by Mr Byrne with a hydrodilatation in about the middle of 2014 but, ultimately, further surgery was recommended.
20 On 5 August 2013, the plaintiff underwent a second operation by Mr Byrne by means of a left shoulder arthroscopy, with a limited decompression and capsulotomy.
21 It is common ground between the parties that thereafter the outcome from these two lots of surgery is less than optimal and that there has been incomplete recovery, such that the plaintiff is still having limited movement and difficulty with physical tasks involving the use of the left arm and suffers from a degree of pain and loss of enjoyment of life.
The issues
22 The defendant concedes the plaintiff suffered the compensable injury as outlined, but disputes that the threshold has been met with respect to economic loss or pain and suffering.
23 In particular, Senior Defence Counsel relies on the plaintiff’s admissions under cross-examination to the effect that she would be able to undertake reception-type work at either the Maryborough Motel or the Maryborough Tourist Information Bureau. Counsel also relies on a number of return-to-work plans which have been agreed to by the plaintiff’s treating medical practitioners, but have all been rejected by the plaintiff herself.
24 With respect to pain and suffering consequences, Senior Counsel for the defendant relies on the principles laid out in Dwyer v Calco Timbers Pty Ltd (No 2),[3] to the extent that the plaintiff has retained the capacity to engage in her hobbies which, in turn, informs the Court as to what has been lost.
[3][2008] VSCA 260
25 With respect to economic loss, Senior Counsel for the defendant submits that if the plaintiff is capable of working 15 hours per week in alternative duties at approximately $25 per hour, she would not succeed in meeting the threshold pursuant to the Act and that she has made insufficient attempts to avail herself of such employment. I do not understand counsel for the plaintiff to disagree with the arithmetic thus stated, but contests the proposition that the plaintiff is able to return to the workforce realistically, in accordance with the principles laid down by the Court of Appeal in Richter v Driscoll.[4]
[4][2016] VSCA 142
26 Finally, the defendant submits that the plaintiff has failed to undergo appropriate rehabilitation in accordance with s134AB(38)(g) of the Act.
27 Although there is evidence that the plaintiff has suffered a reactive psychological condition to her injuries, no issue has been raised between the parties that there is a need for “disentangling” the psychological consequences from the physical consequences of the injury.
The Plaintiff’s oral evidence
28 The plaintiff agreed in cross-examination that the return-to-work program involved tasks that were “fair or appropriate” and it was within her capability to give it a try.[5] However, the plaintiff was adamant that her supervisor, one Mr Kempster, had told her that she was to return to work in the delicatessen in her normal duties.[6] It was put to her as follows:
Q: “So you had a belief that he (Kempster) didn’t think you were fair dinkum about this case? - - -
A: That’s correct.
Q: That is the reason why, really, I suggest to you, you couldn’t and didn’t get back to work because you had an unresolved dispute with this manager? - - -
A: It was also about wanting to put me back full-time into the deli, yes.”[7]
[5]Transcript (“T”) 18, Lines (“L”) 3-30
[6]T19, L4-8
[7]T25, L23-28
29 The plaintiff was cross-examined as to her personal qualities in the following manner:
Q: “Because amongst your personal qualities, and this is no time to be modest, but you are according to reports, very well presented, do you agree with that?- - -
A: Yes I do.
Q: That you’re a quick learner?- - -
A: Yes, I hope so.
Q: I note indeed that in itself is in your own CV? - - -
A: Yes.
Q: That you have a very easy-going and pleasant personality?- - -
A: Yes.
Q: That you’re team-orientated, you can work in a team?- - -
A: Yes.
Q: That you regard yourself as being punctual and reliable?- - -
A: Yes.
Q: In addition to the other views that have been expressed, and I need to take you to them, are along these lines, you possess, do you not, you are someone, would it be fair to say – you are both happy and polite and you communicate well?- - -
A: I pride myself on that, yes.”[8]
[8]T20, L22 – T21, L4
30 This line of questioning was taken up at a later stage to the following effect:
Q: “… You report also to have very good literacy skills?- - -
A: Yes.
Q: In particular, good numeracy skills?- - -
A: I know the basics, yes.
Q: You have some basic understanding of computers or have basic computer literacy and skills, is that right?- - -
A: Very basic, yes.
Q: In terms of what you offer, is it fair to say that you have very good customer service?- - -
A: I say, yes I do.
Q: Do you have very good experience, extensive experience in providing good customer service?- - -
A: Yes.
Q: That carries with it a friendly and caring nature?- - -
A: Yes.
Q: I may have already asked you this but just to be sure: that you are a very good communicator?- - -
A: Yes.
Q: Able to work well in a largish team?- - -
A: Yes.
Q: You have very extensive food handling skills?- - -
A: Yes.
Q: A good working knowledge of safety; and health and safety in the workplace?- - -
A: Yes.
Q: Described by anybody who has employed you as an honest and trustworthy employee?- - -
A: Yes, I pride myself in that.”[9]
[9]T22, L3-21
31 On this latter point, Senior Counsel was at pains to stress in final addresses:
“Another issue that often arises in serious injuries of this nature is the credit of the plaintiff, and if there’s one thing that’s clear in this case, there is no credit issues. We make that point, and we make it forcefully because [the] plaintiff has been particularly frank.”[10]
[10]T41, L9-14
32 Returning to the evidence, the plaintiff was asked in cross-examination if she could work as:
Q: … a receptionist/booking agent, taking people’s details, accepting their credit card, swiping, if that was the case, or inserting it in a machine if that was the case, that likewise, that is a role that would be welly (sic) and truly within your grasp?
“A: Yes, I would think so.”[11]
[11]T23, L16-21
33 Further, she was asked:
Q: “… but if we deal with this on the basis that, for the purposes of this case we’d wanted (sic) to be satisfied to say, a point, that you could work, say, 15 hours a week, so that’s five days, three hours a day, or three days, five hours a day, whatever you like, or whatever combination you like, with your disability the way it is, then that sort of work at reception in a motel, in the library, in the information centre, wherever it may be, you could clearly, without the heavy lifting, make that point, emphasise it, and above shoulder, you could clearly do that sort of work, is that right?- - -
A: I would hope so, yes.”[12]
[12]T23, L25 – T24, L5
34 At a later time, she was asked:
Q: “If the task that we speak (sic) about before, whether it’s an enquiry clerk or reception, that sort of thing involved the following: answering enquiries about goods and services or providing information, responding to enquiries about problems or providing some advice, information or assistance of the information centre, recording information, perhaps on a computer or by pen with your right hand, and that sort of work is the sort of work that’s well within your capacity, noting that the injury is to the left shoulder. Is that fair to say?- - -
A: Yes.”[13]
[13]T30, L17-26
35 As to the facilities that were retained, she was questioned as follows:
Q: “The passions in your life that are the things that you like to do for enjoyment. All right?- - -
A: Yes.
Q: Have they been lost because of your arm injury?- - -
A: Since marrying Greg, the only real thing I ever used to do was spend time with him at the farm on the weekends when he was home, yep.
Q: But weren’t your real interests things like scrapbooking?- - -
A: I began card making. That has only occurred probably the past two years.
Q: Are you able to do that?- - -
A: Yes, I have an automatic machine that cuts a lot of things for me.
Q: But wasn’t it one of your interests and hobbies to engage in the scrapbooking?- - -
A: I had started it, but I never continued with it. I was always working or - yeah, that’s correct.
Q: Does it not appear – have a look at your CV at p.4 of 4. It appears there as your primary interest in hobbies, doesn’t it?- - -
A: Yes, scrapbooking, that’s correct.
Q: Wasn’t it the case then and still the case now, that you are able to scrapbook and make cards as well?- - -
A: Yes, I can do that.
Q: Then another interest that you had, wasn’t it, was craftwork, is that right?- - -
A: Craft work is my scrapbooking, that’s correct, yes.
Q: So with your arms below shoulder height, of course, and with limited weights, then cards and craftwork/scrapbooking, is something that you enjoy and continue to enjoy? - - -
A: That’s correct.
Q: One of your other interests was reading which you pursue now, is that right?- - -
A: Not as much as I used to, but I do enjoy to read.
Q: But to sit quietly with your book and of course with little or no weight and no overhead use, reading is something clearly you could continue to enjoy?- - -
A: That’s correct.
Q: Likewise with the walking that you’ve been doing with Tamara for psychological reasons, you would say, but with a bi-product (sic) of getting some fitness? - - -
A: That’s correct.
Q: The computer was an interest. Do you maintain that? Google searching or checking things?- - -
A: Checking emails, yes.
Q: Learning about - - -?- - -
A: That’s correct.
Q: Communicating with friends and the family via some social media of some sort?- - -
A: That’s correct.
Q: And you do that?- - -
A: Yes.
Q: So the interest in hobbies that you listed in your CV before you were injured remain your interest and hobbies now?- - -
A: That’s correct.”[14]
[14]T28, L24 – T30, L3
36 On these matters, in re-examination, she was asked:
Q: Before you were hurt, when it was lambing season what sort of things would you do on the farm?- - -
A: Well we’d go down they’re (sic) ready to mark and that I’ll help him with marking them, chasing them, rounding them all up, bringing them up from the bottom paddocks, opening gates for him.
Q: Would you handle perhaps not a whole bale of hay, but pieces of hay from time to time?- - -
A: That’s correct.
Q: With your left shoulder now, are you able to do any of those tasks on the farm?- - -
A: No.
Q: Would you like to be able to do that?- - -
A: I’d love to, yeah.
Q: You were asked questions about card making and craft. Would you perhaps explain to His Honour what’s involved in that?- - -
A: When you make cards, you design a design for the card. Then you’ve got metal dyes that actually go through a machine that cut the dyes; then you lay them up, you stick them down yeah. It’s just a creative – mind, creative.
Q: Do you do that sitting at a table?- - -
A: I’ve got a desk, yes.
Q: When you spend some time doing that, how long might you spend on that?- - -
A: Well, I’d like to maybe do an hour or two a day but I don’t always stay there that long.
Q: Do you do that in one go or do you break it up?- - -
A: I break it up, yep.
Q: What if any effect on your left shoulder symptoms does that sort of activity have?- - -
A: Well, if you’re just using your hand too much, like, it’ll ache but that’s when I just give it a break and just let it settle.”[15]
[15]T34, L27-T35, L22
The Plaintiff’s affidavit evidence
37 Given the plaintiff’s frankness and honesty, as conceded by Senior Counsel for the defendant, there was probably good forensic reason for not cross-examining her on the contents of her affidavit sworn 25 September 2015, paragraphs 16 to 25, which state as follows:
“Current Symptoms and Treatment
The pain is always there in my left shoulder. Once every few days, my left shoulder pain is worse. Nothing seems to trigger this worse pain that I feel, but it just happens. When that left shoulder pain is worse, it is really intense, and it is like a sharp throb. The rest of the time it is a burning type of pain. I also get daily pain in my left elbow. This is on and off pain and usually gets worse when I use my left arm. I also get pins and needles in my ring finger and small finger in my left hand about once a week. I have restricted movement with my left arm. I have constant stiffness in my left shoulder. I try to avoid doing repetitive activities with my left arm, as this makes my left shoulder pain worse. My left shoulder pain and elbow ache seems to get worse in the colder weather. I get worse pain when I knock my left arm or shoulder. The left shoulder pain is my biggest problem. I also feel depressed. I now find myself emotional and I cry a lot. Now, I don’t get out of the house anywhere like I used to. I tend to stay more at home as I feel safer at home.
I see my doctor about once a month. He gives me certificates of capacity saying that I am not fit for any work. I still see Mr Byrne about once every four months or so. I take Panadol when the pain is at its worst. I usually take about 2-4 tablets of Panadol a day. I have tried stronger medication in the past, but it upsets my stomach. I also take medication for my high blood pressure and inflammation in the stomach. I also take an anti-depressant every day.
CONSEQUENCES
Before the injury, I used to mostly sleep on my left side, as this was most comfortable for me. Now, I find it difficult sleeping on my left side because of my left shoulder pain. Now, I tend to sleep on my right side and I put a small pillow underneath my left armpit, which I find helps. Although, sometimes I wake up with really severe left shoulder pain or numbness in my left arm. Sometimes, my left shoulder pain wakes me up through the night. Before, I used to get about eight to ten hours of sleep. Now, I get about four to six hours a night because of my left shoulder pain.
I find it difficult making beds and remaking it with doona covers with my left shoulder. I find it difficult to clean on top of cupboards and do things where I need to reach and stretch with my left arm. I find it difficult reaching up to high shelves. I have difficulty moving heavy things, like a heavy basket of washing. I find it more difficult putting clothes out on the line. Even something simple like putting the ironing board out, I find more difficult due to my left shoulder. I even find it hard lifting and emptying the cat’s litter box. I find it hard moving any furniture to clean. Same with putting linen up at the top of the linen press. Now, Tamara helps me a lot with the housework, especially with the things I find difficult doing with my left shoulder and arm.
I have two dogs, a Labrador and a kelpie. Before the injury, I used to walk them, about every couple of days for about half an hour to an hour. Since the injury, I have found it difficult to walk the dogs with my left shoulder pain. They are big dogs and I am worried about them pulling me over. I find it hard looking after them just with one arm, being my right arm.
Before the injury, I used to mow the lawns from about once a week to once a fortnight depending on the season. Now, my hubby mows the lawn for me. Before, I had about eight rose bushes, which I enjoyed looking after. I used to trim and prune them, which is something that my mum taught me. They were really big roses where I used big secateurs with both hands to prune them. I found it difficult to look after them with my left shoulder pain, so I told my hubby to pull them out, which he did.
My hubby has a hobby farm in Clunes with about 200 ewes on it. Before the injury, I used to help with marking the lambs, bringing in the hay bales and opening and closing the gates with both hands. Now, I find it difficult trying to help him with these things because of my left shoulder pain.
I believe my concentration and memory are worse than before my injury. I lapse with concentration from time to time and remembering things. I believe this is from the stress that I am having.
Since the injury, I have found it more difficult to wash my hair with my left shoulder pain. I also find it difficult putting on some tops and cardigans. Now, I tend to put on easier fitting and looser clothes.
Now, when I go shopping, I try to avoid carrying bags in my left hand as this increases my left shoulder pain and it pulls on my shoulder. I can carry something light with my left arm but nothing too heavy. Now, my hubby and Tamara tend to help me more with the shopping.”[16]
[16]PCB, 4-7; exhibit “A”, affidavit sworn 25 September 2015, PCB 10-13 at paragraphs [16]-[25]
38 In my view, the consequences set out therein establish a prima facie case of the threshold being met for pain and suffering, in that the consequences are very considerable and more than significant or marked. In final addresses, Senior Counsel for the defendant did not seem to demur from that proposition, but did emphasise that, in view of the plaintiff taking moderate pain-relief medication and retaining her hobbies and interests, that, nonetheless, the question needs to be asked: “Is this in fact a serious injury?”[17]
[17]T45, L26 – T46, L15
39 In my opinion, the consequences there set out, do establish consequences which meet the threshold for pain and suffering. In particular, I rely on the following statements:
“The pain is always there in my left shoulder. Once every few days, my left shoulder pain is worse. Nothing seems to trigger this worse pain that I feel, but it just happens. When that left shoulder pain is worse, it is really intense, and it is like a sharp throb. The rest of the time it is a burning time of pain … I have restricted movement with my left arm. I have constant stiffness in my left shoulder. I try to avoid doing repetitive activities with my left arm, as this makes my left shoulder pain worse.”[18]
[18]Exhibit “A”, affidavit sworn 25 September 2015, PCB 4-5 at paragraph [16]
40 Further, the plaintiff swears:
“I see my doctor about once a month. He gives me certificates of capacity saying that I am not fit for any work. I still see Mr Byrne about once every four months or so. I take Panadol when the pain is at its worst. I usually take about 2-4 tablets of Panadol a day. I have tried stronger medication in the past, but it upsets my stomach. I also take medication for my high blood pressure and inflammation in the stomach. I also take an anti-depressant every day.”[19]
[19]Exhibit “A”, affidavit sworn 25 September 2015, PCB 5 at paragraph [17]
41 Further, the plaintiff swears:
“Before the injury, I used to mostly sleep on my left side, as this was most comfortable for me. Now, I find it difficult sleeping on my left side because of my left shoulder pain. Now, I tend to sleep on my right side and I put a small pillow underneath my left armpit, which I find helps. Although, sometimes I wake up with really severe left shoulder pain or numbness in my left arm. Sometimes, my left shoulder pain wakes me up through the night. Before, I used to get about eight to ten hours of sleep. Now, I get about four to six hours a night because of my left shoulder pain.”[20]
[20]Exhibit “A”, affidavit sworn 25 September 2015, PCB 5 at paragraph [18]
Loss of earning capacity
42 It is clear enough that the plaintiff has admitted in cross-examination that she is physically able to do the tasks referred to therein for 15 hours per week. Leading Counsel for the plaintiff submits that the plaintiff is not able to carry out “suitable employment” as defined in s5 of the Act, principally 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;
(ii) the nature of the worker’s pre-injury employment;
(iii) the worker’s age, education, skills and work experience.
43 It is clear enough that the evidence adduced in cross-examination relates to the plaintiff’s physical capacity to undertake the duties put to her. However, as Ashley and Kaye JJA stated in Richter v Driscoll[21] at paragraph 76:
“[R]eturn to work in employment ... requires more than that a physical capacity to engage in a task or tasks.”
[21]Supra
44 The employment must be, as specified in the definition of “no current work capacity”, “suitable employment”. For their Honours, the definition of “suitable employment”:
“... plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise.”
45 Their Honours warned:
“… paragraphs (a)(ii), (iii) and (iv) would have no work to do.”[22]
[22]Richter v Driscoll (supra) at paragraph [76]
46 Accordingly, the question whether a worker is able to return to work in suitable employment, according to their Honours:
“... specifically requires consideration of matters travelling beyond physical capacity to perform a task.”[23]
[23]Richter v Driscoll (supra) at paragraph [77]
47 Accordingly, the construction which Ashley and Kaye JJA placed on the definitions of “no current work capacity” and “suitable employment” can be expressed as follows:
“... whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances – these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.”[24]
(Emphasis added).
[24]Richter v Driscoll (supra) at paragraph [95]
48 They further stated:
“The other, closely allied, way in which the matter may be put is shown in the passage of the judgment of Fletcher Moulton LJ in [Cardiff Corporation v Hall [1911] 1 KB 1009], where his Lordship referred to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’.”[25]
[25]Richter v Driscoll (supra) at paragraph [96]
49 Osborn JA agreed with Ashley and Kaye JJA in this regard. His Honour stated:
“The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated. ...
A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.
This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.”[26]
(Emphasis added).
[26]Richter v Driscoll (supra) at paragraph [143]-[145]
The medical evidence
50 The treating general practitioner, Dr Daniel De Villiers, in his report dated 14 February 2016,[27] confirmed the injury consisted of an acute full-thickness tear of the left supraspinatus tendon which required surgical repair performed by Mr A Byrne on 19 November 2013, following which she developed a frozen shoulder which required an attempt to resolve via hydrodilatation under image guidance. This procedure failed to resolve her problem, which led to a further procedure by Mr Byrne on 5 August 2014. He considered at that time:
[27]Exhibit “A”, PCB 23
“Her prognosis remains guarded. She has ongoing pain and restriction due to her injury. …
There is a high likelihood of further treatment/procedures in the future. …
The condition has a degenerative component and is likely to recur. …
She has no capacity for her pre-injury work.
… She does have a capacity for work which would be restricted to light duties, performed at waist height. She is unable to perform work above shoulder height. … She has a capacity to perform work in the future, with the same restrictions.”[28]
[28]Exhibit “A”, PCB 23-24
51 The treating surgeon, Mr Andrew Byrne, in a report dated 26 March 2015, stated:
“With regard to her shoulder it is entirely appropriate for Mrs Ford to seek employment. Her frozen shoulder may improve further given time but if it reaches two years then it is highly unlikely she will regain full range of movement. She is best served by working in a situation where she is not pulling any labouring activity or no heavy lifting and in particular no activity with work above shoulder height.”[29]
[29]Exhibit “B”, PCB 34
52 When seen again on 16 April 2015, Mr Byrne noted that the plaintiff’s situation had not changed. Relevantly, she was sleeping with a pillow to support her left shoulder.[30]
[30]Exhibit “B”, PCB 35
53 When reviewed again on 7 September 2015, he noted that she was in tears throughout the consultation and that she was taking Panadol for pain control and that her movement had not improved significantly.[31]
[31]Exhibit “B”, PCB 35
54 When reviewed again on 11 March 2016, the plaintiff related that her shoulder was better than prior to surgery but was still causing her concerns. It ached at times and she was taking Panadol when needed. She said she avoided lifting hay bales and opening farm gates to try to keep her shoulder settled. At that stage, Mr Byrne expected that the plaintiff would continue with ongoing symptoms in her shoulder and from a medical point of view, her shoulder had stabilised.[32]
[32]Exhibit “B”, PCB 36
55 The defendant tendered in evidence a number of return-to-work plans between the dates 7 October 2013 and 22 October 2014. On each occasion, Dr De Villiers certified that the duties were “acceptable”.[33] It would appear that the only time he endorsed a reply was on 9 October 2014 to the effect:
“I noticed that Ms Ford has not cited nor agreed [to] this. It does appear reasonable, and the limited hours should allow her to ease into it.”
[33]Exhibit 2, DCB 28, 60, 68, 76, 84, 91, 105 and 113
56 In fact the plaintiff accepted none of the offers to return to work as the offer involved a “return to work at full capacity”.[34] The plaintiff, herself, gave uncontradicted evidence that her supervisor, Mr Kempster, told her that this meant she would need to return to the delicatessen. It is common ground between the parties that this type of work was not suitable for her. In any event, it appears that despite her refusals, the plaintiff remained in receipt of weekly payments of compensation.[35]
[34]See for example exhibit 2, DCB 98
[35]Dr Phillip Haynes, exhibit 2, DCB 11
57 The plaintiff was examined by orthopaedic surgeon, Mr W Huffam, for medico-legal purposes on 8 March 2016.[36] He confirmed the history of the development of adhesive capsulitis or frozen shoulder after the first operation, which was initially treated by hydrodilatation. A further operation on 5 August 2014 resulted in a capsulotomy being performed that although the pain in the shoulder improved, movement had made very slow progress. She continued to be troubled by pain and limitation of movement of her (left) shoulder. She was unable to help her husband on their small farm. She was unable to sleep on her left shoulder because of pain. She had pain if she knocked the shoulder. She had some pins and needles down to the little and ring fingers of the left hand. She was taking tablets of Paracetamol, two to eight a day, depending on the level of pain. She was also occasionally taking non-steroidal anti-inflammatory medication, Nurofen, 200 milligrams twice a day, but the latter could upset her stomach.[37]
[36]Exhibit “E”
[37]Exhibit “E”, PCB 43
58 On examination, Mr Huffam noted the plaintiff was a co-operative, healthy looking woman. She stood with a normal posture of the shoulders but there was obvious wasting of the deltoid muscle on the outer aspect of the left shoulder. There was probably some wasting of the muscles of the left upper arm.[38]
[38]Exhibit “E”, PCB 44
59 Movements of the left shoulder were limited to about half normal range. It was his opinion that any activities requiring the use of the left arm were limited, as were any repetitive or prolonged use of the left shoulder. He considered that overhead activities involving the left shoulder were not at all possible, and that fine and manipulative use of the left shoulder would also be limited.[39]
[39]Exhibit “E”, PCB 46
60 Mr Huffam considered the incapacity would be permanent and that the plaintiff had a capacity to perform suitable employment “with considerable limitations”. She would be unable to perform any form of employment requiring her to use her left arm at or above shoulder level and to perform heavy lifting with her left arm.[40]
[40]Exhibit “E”, PCB 46
61 Mr Huffam also considered it quite possible that in the long term, there may be some further deterioration in function in her left shoulder.[41] Not strictly relevant, but he did note:
“When examined on 3 March 2016 Mrs Ford did not appear to be obviously depressed or psychologically disturbed. … .”[42]
[41]Exhibit “E”, PCB 46
[42]Exhibit “E”, PCB 47
62 Both the plaintiff and the defendant tendered reports from occupational physicians, being Dr Joseph Slesenger,[43] and Dr Philip Haynes[44] respectively.
[43]Exhibit “G”
[44]Exhibit 1
63 Dr Slesenger reported on 27 May 2016.[45] The plaintiff reported that she had ongoing pain in her left shoulder at a level of 7 or 8 out of 10. The pain was worse on elevating the shoulder and lying on her left side. She advised that the pain was variable and could deteriorate spontaneously. She advised that on those days, she had to stop and take Panadol and ease what she was doing at the time. Apparently this occurred generally on two or three occasions a week with no particular pattern. She also advised that she had difficulty gripping with the left hand and had pins and needles in the left and middle ring fingers. The pins and needles are constant but were not aggravated during sleep.[46] Relevantly, on examination, he noted:
“There was wasting over the superior aspect of the shoulder and the deltoid area.”[47]
[45]Exhibit “E”, PCB 75
[46]Exhibit “E”, PCB 77-78
[47]Exhibit “E”, PCB 81
64 There was also limitation of movement of the left upper limb. Further, he reported that the left shoulder condition had stabilised and he did not anticipate a significant improvement at that stage.
65 Her treatment requirements included the following:
· Regular review under the care of her orthopaedic surgeon
· A self-managed exercised program to be performed daily
· Regular review under the care of her general practitioner for certification and mediation purposes.[48]
[48]Exhibit “E”, PCB 83
66 With regard to the plaintiff’s left shoulder impairment alone, he was of the opinion that she had the following restrictions:
“· No over shoulder reaching
· No push, pull, carry or lift over 5 kilograms (bilaterally).
· No repetitive shoulder movements.”[49]
[49]Exhibit “E”, PCB 84
67 Within those confines, he considered that she did have the capacity to perform alternative duties and that she could return to work “working three hours a day, two days a week”.[50]
[50]Exhibit “E”, PCB 84
68 Further, he stated:
“Regarding suitable employment, in support of this, I note the variable and unpredictable nature of Mrs Ford’s symptoms and I am of the opinion that attending work with greater frequency is likely to be affected by her variable left shoulder symptoms and is unlikely to be sustained.”[51]
[51]Exhibit “E”, PCB 84
69 In my opinion, this statement would appear to align directly with the principles outlined in Richter v Driscoll[52] referred to above.
[52]Supra
70 Occupational physician, Dr Phillip Haynes, examined the plaintiff on behalf of the defendant on two occasions, being 2 March 2015 and 6 July 2016. In his first report, Dr Haynes noted the plaintiff had ongoing pain and restriction of movement in the left shoulder and that she was able experiencing tinging and numbness extending along the ulnar border of the left forearm to involve the left ring and little fingers. She was also aware of recurrent let elbow pain. She as having difficulty sleeping at night due to left shoulder pain. At home she was restricted in regard to housework because of left shoulder symptoms. She was not able to undertake any elevated work or heavier lifting using her left hand. She was taking Panadol from time to time for shoulder pain because she developed side effects with other medications.[53]
[53]Exhibit “E”, DCB 3
71 Mr Haynes agreed that the diagnosis was one of a full-thickness tear of the left shoulder supraspinatus tendon, treated surgically, followed by complications in the form of frozen shoulder. He also thought there were symptoms consistent with ulnar nerve irritation. On examination, the plaintiff reported tenderness to palpation around the left shoulder, and demonstrated marked restriction of left shoulder movement. In his opinion, the symptoms reported and the physical restrictions were consistent with the diagnosis of the condition.
72 Further, Dr Haynes stated:
“Since shoulder conditions quite often take many years to recover and often lead to permanent restrictions, I believe that Ms Ford’s condition has followed the expected pathway of recovery as occurs in many cases. I did not gain the impression of inappropriate treatment or malpractice.”[54]
[54]Exhibit “E”, DCB 5
73 Importantly, Dr Haynesffam did not gain the impression of involuntary exaggeration of symptoms or restrictions.[55]
[55]Exhibit “E”, DCB 7
74 Relevantly, he did not consider that the plaintiff was totally incapacitated for all work. He believed that she could undertake a variety of work duties as long as she could avoid lifting of more than 5 kilograms and avoid any left-handed work above shoulder height.[56] He recommended ongoing paracetamol and home exercise. He considered the prognosis would be for very gradual improvement in left shoulder symptoms over six to twelve months or longer.[57]
[56]Exhibit “E”, DCB 7
[57]Exhibit “E”, DCB 9
75 On the second occasion, Dr Haynes noted the earlier history and noted that she had remained under the care of her general practitioner. She had not resumed any work duties and remained in receipt of worker’s compensation payments.
76 Further, he stated the plaintiff –
“… reported significant ongoing pain throughout her left shoulder. There is a markedly restricted range of movement in the shoulder. She has difficulty with any lifting or elevation of the [left] arm because of left shoulder pain. She finds it difficult to sleep at night because of left shoulder pain. … She has difficulty washing her hair and putting on bras and socks because of left shoulder pain.”[58]
[58]Exhibit “E”, DCB 11
77 On examination, he noted the plaintiff –
“… demonstrated restriction of left shoulder movement and she reported tenderness to palpation around the left shoulder. I did not consider there to be any inconsistent clinical signs.”[59]
[59]Exhibit “E”, DCB 13
78 Importantly, he noted:
“There was some further loss of movement in the left shoulder since my last assessment. The shoulder motion has therefore objectively deteriorated to some degree.”[60]
[60]Exhibit “E”, DCB 13
79 Dr Haynes referred to the return-to-work plan dated October 2014. (Apparently this is the plan the plaintiff herself had not sighted according to Dr De Villiers). In any event, Dr Haynes noted:
“The plan suggested commencement of work activity, initially for four hours on three days of the week undertaking a variety of lighter duties which did not require heavy lifting or overhead reaching. In my opinion Ms Ford does have the capacity to undertake the work role suggested for four hours on three days of the week initially. It is possible that she could progressively upgrade her working hours but any upgrade would depend on her response to the initial return to work.”[61]
[61]Exhibit “E”, DCB 14
80 Relevantly, he considered the defendant’s NES Vocational Assessment Report dated 27 March 2015.[62] It was his opinion the plaintiff had the capacity to work as an enquiry clerk, an admissions clerk or a sales support worker for 12 hours per week. These occupations, together with any office-based work duties, would have restrictions where the plaintiff would need to avoid work activity where she is required to lift more than 5 kilograms and any work activity which requires left-handed work above shoulder height. She would also be unfit for any forceful pulling or pushing using her left arm.[63]
[62]Exhibit 4
[63]Exhibit “E”, DCB 14
81 At this point, it would appear that the only difference between Dr Slesenger and Dr Haynes is the capacity to work for 6 hours compared to 12 hours per week. On the formula submitted by defence counsel and not contradicted by plaintiff’s counsel, this would entitle the plaintiff to relief as it is less than 15 hours per week. There is a difference however in that Dr Haynes states:
“After a graduated return to work, I believe that Ms Ford should be able to upgrade to undertake four hours on five days of the week with the restrictions outlined above.”[64]
[64]Exhibit “E”, DCB 15
82 It is clear that an assessment of a number of hours the plaintiff is able to work is not an exact science. On balance, I consider that the plaintiff’s limitations are more likely to be in the range of 6 to 12 hours per week rather than 20 hours per week. Although the scales are finely balanced, I consider that Dr Haynes’ opinion that there had been a further loss of movement in the left shoulder since his last assessment and that this represented objective evidence of deterioration to some degree, militates against an improvement whereby 20 hours per week may be possible.
Vocational evidence
83 The defendant’s NES Vocational Assessment dated 20 March 2015[65] has been commented upon by Dr Haynes in the manner already expressed.
[65]Exhibit 4
84 The plaintiff’s Vocational Report from Ms Leonie Schneider contains the following statement:
“Suitability for alternative employment
When managing a realistic job on the open labour market purely from a physical standpoint, Mrs Ford is limited to local employment for very minimal self-paced hours per fortnight. In my opinion, given a combination of physical and other factors such as protracted fluctuating pain with activity and sleep disturbance, Mrs Ford realistically has ‘no current work capacity’. This incapacity for work is likely to be open ended.”[66]
[66]Exhibit “F”, PCB 51
85 I accept Senior Counsel for the defendant’s submission that it is really for the Court to decide these issues rather than a vocational expert but for the reasons referred to above, I consider that the capacity to work is probably no more than the 12 hours per week referred to.
Rehabilitation
86 In his opening, Senior Counsel for the defence submitted the plaintiff had “not exercised, and does so in breach of s134AB(38)(g) as part of the obligation of the plaintiff in establishing pecuniary loss, and has not attended to rehabilitation or retraining or the re-attendance of work”.[67]
[67]T12, L4-8
87 I have already dealt with the plaintiff’s re-attendance at her place of work in terms of her supervisor advising her that it involved her returning to her pre-injury duties full time in the delicatessen.
88 So far as rehabilitation or re-training is concerned, I note Ms Kate Skinner, the author of the NES Vocational Assessment Report dated 20 March 2015,[68] notes that apart from a $50 basic computers introductory course, “Maryborough does not have any other courses currently running as many training officers no longer run out of Maryborough – Konekt contacted BRACE, WDEA, St Laurence Community Services, Tracey’s Sureway Employment and Training Services and Centre Care and unfortunately none of these establishments have courses available and cannot see any courses coming up in the near future”.[69]
[68]Exhibit 4
[69]Exhibit 4, DCB 123
89 Accordingly, I do not consider the recourse to this subsection of s134AB defeats the plaintiff’s claim in this regard.
Conclusion
90 In my view, the uncontested restrictions set out in the plaintiff’s affidavit aforementioned inform, to a large extent, her capacity to return to work “as a settled member of the workforce”. In particular, her inability to perform her hobby for more than two hours, and which in turn requires her to take a break, militates against her being able to perform in the workforce on a regular and reliable basis, her good intentions notwithstanding. This observation coincides with the opinion of Dr Slesenger referred to in paragraph 68 above. It is also consistent, in my view, with the noted deterioration, on objective grounds, by Dr Haynes in his second consultation referred to in paragraph 78 above.
91 In all the circumstances I am satisfied the plaintiff does not retain “powers of labour [as] a merchantable article”.[70]
[70]Richter v Driscoll (supra) at paragraph [96]
92 Leave will also be granted to the plaintiff to issue proceedings for economic loss damages.
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