Fossati v Merlvic Schrank Pty Ltd and Victorian WorkCover Authority
[2013] VCC 1026
•23 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-02791
| MAURICE FOSSATI | Plaintiff |
| v | |
| MERLVIC SCHRANK PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18 and 19 June 2013 | |
DATE OF JUDGMENT: | 23 August 2013 | |
CASE MAY BE CITED AS: | Fossati v Merlvic Schrank Pty Ltd & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1026 | |
REASONS FOR JUDGMENT
Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the left shoulder – compensable injury – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment:Leave granted to bring proceedings for damages for pain and suffering. Application dismissed in relation to loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni SC with Mr M Walsh | Vincent Verduci & Associates |
| For the Defendants | Mr C O’Sullivan | Lander & Rogers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant from October 1999 and in particular in April 2008.
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) of the Act.
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 five affidavits and gave viva voce evidence. He was cross-examined. A co-worker, Sandra Withers, swore affidavits on 19 March 2010, 28 March 2012 and 18 June 2013. She was required for cross-examination. Another co-worker, Feride Adas, swore affidavits on 26 March 2012 and 18 June 2013.
6 The defendants relied upon affidavits sworn on 29 September 2011 by Mike Patchett, Jane Batrouney, Chris Batrouney, Bob Batrouney and Darren Pauthenet. Supplementary affidavits were sworn by Chris Batrouney, Bob Batrouney, Ron Farrugia and Darren Pauthenet on 14 June 2013.
7 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
8 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
9 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
10 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, s134AB(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
11 By s134AB(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”.
12 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
13 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.
14 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
15 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
16 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
17 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1]and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
18 A preliminary issue in this application is whether the plaintiff suffered injury to his left shoulder as a result of his work duties and or an incident in April 2008.
19 The plaintiff maintains he suffered injury in the incident and as a result of carrying out a range of heavy duties in his role as warehouse manager.
20 The defendants dispute this was the case, alleging that since the plaintiff suffered a heart attack in 1997, his duties were essentially administrative. Further, the defendants deny the plaintiff suffered injury in the incident, not having reported suffering any shoulder injury at work until he lodged a claim in December 2008.
Work duties
21 The plaintiff worked for the first defendant from 1973 until the end of November 2008 as a storeman, and since 1980 as warehouse manager, although his duties did not change a great deal in that role and involved considerable physical work.
22 In 2008, the first defendant had only two storeman employees, Darren Pauthenet and Ron Farrugia. Previously there were three or four.
23 The plaintiff’s employment included picking, packing and scanning orders, unpacking imported orders, steam tunnel maintenance and operation, operating forklifts, administration duties, managing the operation of the warehouse and its staff, monitoring subcontractors and suppliers, general housekeeping and maintenance, liaising with buyers and distribution centres and cleaning toilets from mid 2007.
Container work
24 Unpacking imports involved unpacking containers frequently overfilled by suppliers. The boxes from the containers had to be stacked on two pallets and then taken by forklift to the warehouse. The boxes had to be opened when required and garments were then hung on a rack 1.6 metres high. The garments were then transported to the steam tunnel, having been hung on a 1.6 metre-high bar. After being processed, the garments were then again put on 1.6 metre-high racks which were then transported to the storage facility where there were three-level shelving racks from 1.8 metres to 6 metres high which had to be accessed by climbing on ladders and at times “hanging like a monkey”.
Picking
25 Picking involved taking garments from the racks and putting them on a 1.6 metre-high mobile rack, grouped according to size, style and colour. To make an order, the plaintiff was required to pick from about 20 mobile racks in accordance with the picking slip – holding up to 20 garments on their hangers in his left hand, high enough so they did not touch the ground. That process could take place repetitively over a whole day and caused a strain on his left shoulder – spending up to 5 hours a day on picking. Such piles of garments may weigh between 8 and 10 kilograms.
Scanning
26 Once picked, garments were scanned, having been placed on a 1.6 metre-high mobile rack and transported to the scanning station. Each garment was moved along the rack and individually scanned and then batched in bundles of 8 to 10 garments.
Packing
27 The scanned garments, as batched, are then bagged, a process which requires getting to your knees and slipping the bag over the garments from bottom up. The bag is then secured by a cable and lifted to a speed rail approximately 1.8 metres high.
28 During the course of his employment, the plaintiff had previously sustained some back pain and pain to his hip which had been reported to his employer. As far as he could recall, the plaintiff did not take any time off work although he believed he had some physiotherapy.
29 Particularly after the reduction on the number of storemen, the difficulty of the repetitive above shoulder height lifting work increased and two other staff sustained some shoulder injuries, requiring time off for rehabilitation. During their absence, the plaintiff had to do their work as well as his own.
30 In April 2008, standing on top of about a 2-metre ladder holding onto the rail above head height with his left arm, and with his right foot also on the rail at approximately the same height as the ladder, the plaintiff was taking clothes on hangers off the rail, also above shoulder height.
31 There was no one holding the ladder, which fell over, and the plaintiff was left hanging on his left arm. His hand could not maintain his weight and his grip released and he fell to the ground (“the incident”).
32 This caused immediate pain in the plaintiff’s left shoulder and fortunately he landed on his feet. Darren Pauthenet (“Darren”) was out the back and the plaintiff told him about ten minutes later – “I came off that stupid ladder” and Darren replied “I told you the ladder was dangerous”.
33 The previous year at one stage an alternative safe ladder was purchased by the plaintiff for the factory but it did not fit in the area it was required so it was taken to the shop section. In the warehouse the first defendant persisted with the short ladder.
34 The plaintiff also told Chris Batrouney (“Chris”) about the incident, although he understands he does not recall it. Chris told the plaintiff that the following week they were not going to be busy and he could take time off then. However, the plaintiff never got that time off because Chris changed the schedules for deliveries to ensure that they were busy.
35 Between 2,000 and 10,000 garments of new stock arrived for Target between August and September 2008 and there was a lot of daily picking, packing and loading which had to be done. The plaintiff mentioned his sore arm to Chris on several occasions and he would often say, as before, next week take some time off.
36 In his fourth affidavit sworn in September 2012, the plaintiff responded to the affidavit evidence relied upon by the defendants sworn in September 2011 relating to the work process and the incident:
·Ron Farrugia’s affidavit
Ron was aware in 2008 the plaintiff injured his shoulder in the circumstances deposed to and the plaintiff believed the injury circumstances were well known by all employees of the first defendant.
· Darren’s Pauthenet’s affidavit
Darren was aware in 2008 that the plaintiff injured his shoulder at work.
· Bob Batrouney’s affidavit
Bob was aware in 2008 that the plaintiff had hurt his shoulder.
· Jane Batrouney’s affidavit
Jane was aware the plaintiff had injured his shoulder in 2008.
· Chris Batrouney’s affidavit
Chris was aware the plaintiff had injured his shoulder. The plaintiff advised, after his left shoulder injury, that he was struggling at work and told him he was breaking down physically. Chris just said “take a couple of days off,” but he did not show any concern for the plaintiff.
· Mike Patchett’s affidavit
Mike was aware in 2008 that the plaintiff had injured his shoulder.
37 The plaintiff disagreed that after the heart attack his work became much more supervision and office-orientated. His work duties continued to be very ‘hands on’ after the heart attack. He was often required to load and unload cartons weighing up to 16 kilograms, and sometimes more, from trucks. They were told to get on with the job by supervisors even if the cartons were too heavy. The plaintiff complained to Chris that the cartons were too heavy.
38 The plaintiff was also required to pick garments from varying heights while working from platforms and ladders. This was a strenuous task requiring him to hold a variety of garments in his hands, placing significant stress on his left arm, hand and shoulder. That process continued between 1997 to 2008.
39 The plaintiff’s heart condition had little or no impact on the range of activities he was required to perform at work and his duties continued to be very heavy and repetitive.
40 Between 1997 and 2008, work duties placed additional strain on individual employees to achieve quotas in a very competitive industry in an environment of retrenchment. Chris and Jane were very money orientated. Whilst the speed rail system helped worker’s lower levels, it did not accommodate carton and garment handling at higher levels and a number of garments still had to be walked manually up the ladder and placed on racks on higher levels. The speed rail system did not reduce the manual handling tasks required of the plaintiff.
41 The plaintiff disagreed that he did limited picking and scanning. Picking of garments had to be performed manually, not on rails raised into a truck by a motorised conveyor, as Mike alleged. The plaintiff had to pick with his right hand and place the garments with his left, holding them above floor height to prevent them from being soiled. The garments were moved to a mobile rack and taken to the scanning station. That work required constant repetitive manual handling which placed significant pressure on the plaintiff’s arms, particularly his left shoulder.
Evidence-in-chief
42 Darren was totally wrong in saying the plaintiff was never involved in physically unloading containers. The plaintiff had to do this job when the need arose when one of the boys was sick.[3] This job involved 40-foot shipping containers with clothing and nightwear inside weighing from 8 to 45 kilograms.
[3]Transcript (“T”) 19
43 Almost every year during the Christmas break, this job was left only to the plaintiff and Chris, as the others were on annual leave.[4]
[4]T20
44 Over a year, 60 to 70 containers were delivered. Regularly there were two containers a month but just before Christmas everything would be rushed into the country and 20 containers could be sitting there during the Christmas break.[5]
[5]T20
45 Twenty per cent of the time, not rarely as Darren deposed, the plaintiff was involved in unpacking boxes, taking the garments out and putting them on the speed rail, and then they would be taken to the steam tunnel.[6]
[6]T20
46 The plaintiff believed the longest time he unloaded containers and the boxes therein would have been for a whole week nonstop, about 30 per cent of the time, not once a month, as Darren deposed.[7]
[7]T21
47 Once garments emerged from the steam tunnel they were transferred to a speed rail. The plaintiff or Darren would take them off the rail in bundles weighing about 15 kilograms for 50 garments (depending on the type of garments) and place them on a permanent rack or a non moveable rack which was about 1.5 metres high. The plaintiff is 165 centimetres tall.[8] He had to lift his arms to handle the garments. In one day, up to 3,000 garments could be put through the tunnel.
[8]T22
48 There was a speed rail after November 2001 but all garments were not lifted by a mechanical device because they had to be taken off the speed rail to be lifted into position. The rail did not grab the garments and put them to a higher level. They were moved from the rail by hand,[9] a task the plaintiff sometimes did.
[9]T23
49 The plaintiff was shown a number of photographs exhibited to his affidavit and explained the circumstances of the incident.
50 The plaintiff had one leg on the ladder and one leg on the top of a metal bar. He grabbed the garments with his right hand and then lifted them up and hooked them on to the speed rail.[10]
[10]T29
51 As the plaintiff put pressure to try to reach a bar above the hanging facility to hang the garments, the ladder just slipped back and he was left hanging on with his left arm.[11] He probably had to let go after 4 or 5 seconds and he landed on his feet and the ladder just fell on top of the clothes on the side. The plaintiff was totally stretched out, probably about 3 feet off the floor.[12] His arm was very sore for quite a few days after the incident.
[11]T29
[12]T30
52 About 10 minutes after the incident, Darren and Ron came back to the distribution and the plaintiff said to them “That stupid ladder slipped and I almost killed myself” and Darren said “I told you one of these days that’s going to kill you”.
53 The plaintiff disagreed that the purchase of a tall safety ladder prevented the need to hold onto the racks for stability.[13] That particular ladder was unsuitable for the warehouse so he had to use the smaller ladder.
[13]T31
54 The plaintiff was involved in picking, which was a three-man operation with a picker, scanner and a bagger.[14] The picking was from mobile racks and then the garments were put on another mobile rack, moved to the scanning station where they were scanned one by one and then bound together with a rubber band. They were then taken to a slightly different section a bit further down for someone to place a bag over them and a security tag.[15]
[14]T32
[15]T32
55 The plaintiff did picking 70 per cent of the time. Big stores such as Target would advise what they required and the stock would be picked by a worker walking along the rack selecting size and style of up to 5,000 garments.
56 The garments came in from overseas. The plaintiff had to unload them and stack them onto racks. The garments remained on the racks until an order came and they were then picked to meet the order. The garments then went through the steaming tunnel.
57 Some orders could take three days to fill depending on the volume of the order, with just three workers doing those jobs.[16] In the last three years of the plaintiff’s employment, the picking increased as the first defendant received more orders from one of the major chain stores which required a quick response.[17]
[16]T34
[17]T35
58 There were plenty of occasions when Ron or Darren were unable to do the job. Darren had a shoulder injury, probably a year before the plaintiff left, and was not able to pick at all and was off for a bit over a month and the plaintiff did the picking. Ron was not capable of picking. He was very inaccurate and would make mistakes.
59 After a day picking, your arms would be so sore it was just incredible.[18]
[18]T35
60 Ron and Darren both had a shoulder injury.[19] When Ron had a shoulder injury, he could only do the steam tunnel, and bagging was done by the plaintiff, Chris and Bob.
[19]T36
61 The plaintiff did not resign. He was on a month’s sick leave and he did not mention his shoulder when he took leave. He was in pain. He was going on stress leave so he did not mention that he was going off because of his shoulder.
62 The plaintiff was unaware of his shoulder injury till the MRI scan.[20] He had shoulder pain but did not know its extent. [21] That pain was present before he finished work. It started way before he fell off the ladder but in a much milder version, a couple of years before.[22] The pain was worse after the incident.
[20]T36
[21]T37
[22]T37
63 The plaintiff confirmed he did not fill in an incident report because he was too faithful to the first defendant and “did not want to sort of be looked at – “There’s the boss calling in for a shoulder injury” – having worked there for thirty-seven years.
64 The plaintiff said that it was incorrect that he had done virtually no physical work since the heart attack, as Ron Farrugia deposed.
65 The plaintiff disagreed it was extremely rare he would unpack the container. He agreed 90 per cent of his container work was on the forklift. Ron did not do the hanging of garments just by himself.
66 The plaintiff confirmed the unsuitability of the new ladder.[23]
[23]T38
67 He agreed the speed rail required nothing more than a gentle push.[24]
[24]T38
68 The ladder the plaintiff used was also used by Darren.[25]
[25]T39
69 The plaintiff described the scanning process.[26] Garments were on a rack about 1.6 metres high and about 1.8 metres long. A worker had to pull as many garments as he could, leaving a small gap at the end. When he came to scan, he grabbed the garments and moved forward and scanned them and moved across the garment to the other side until scanning the whole 200 garments.[27]
[26]T39
[27]T39
70 The plaintiff held the scanner in his right hand and he moved the garments with the left. Whoever was doing 70 per cent of the picking would do 30 per cent of the scanning and vice versa.[28]
[28]T40
71 The plaintiff denied he only did light work after his heart attack. Probably under normal circumstances he did heavy work 15 to 20 per cent of the time. If someone was sick, he would be doing as much heavy work as his co-worker.[29]
[29]T40
72 Ron and Darren knew the plaintiff had fallen off the ladder in the incident.[30] The plaintiff told them he had come off the ladder and Darren commented: “That ladder was going to kill us, it is about time they did something decent for us.” That was on the day the incident happened.[31] The plaintiff did not report the incident and he did not go around telling everyone about it.
[30]T40
[31]T41
73 The plaintiff disagreed he told Ron that he was giving the job away the last day he worked. The only thing the plaintiff hold him was that he was given a month off by his heart specialist because he was stressed out.[32] The plaintiff maintained he was harassed and bullied by the bulk of drivers who attended the factory.
[32]T41
74 The plaintiff was asked about Bob‘s affidavit.[33] The plaintiff agreed he did picking and scanning but said it was not light work. It was medium and repetitive work transferring garments form one rack to another and he did it regularly.[34] The time pressure was incredible,[35] particularly the larger orders for Myer and Target.[36]
[33]T43
[34]T44
[35]T44
[36]T45
75 Scanning was extremely physical because your arms were above your shoulder height all the time.[37] Bob was wrong saying the plaintiff avoided heavy physical work because of his heart attack.[38] The plaintiff confirmed it was only he and Chris over the Christmas break who unloaded the containers.
[37]T45
[38]T47
76 On the day he resigned, the plaintiff spoke to Mike, the personnel manager, and told him his heart surgeon gave him a certificate for a month off. Having told Bob he was only having a month off, Bob called a meeting with the rest of the staff and announced that due to medical grounds the plaintiff was resigning. The plaintiff made it clear he was not resigning. He said he was just giving a doctor’s certificate to have a month off on stress grounds and that was it.[39]
[39]T48
77 Shortly thereafter the plaintiff put in a claim. He confirmed the incident circumstances and the injuries set out therein.
78 The plaintiff now would not be able to pick as he would not be able to pack or lift anything heavy. When picking, his left hand is outstretched to rest garments on it, keeping it above shoulder height so the garments do not hit the floor and get dirty.[40]
[40]T50
Cross-examination
79 The plaintiff never told anyone that someone moved the ladder; it was his foot that pushed too far back and moved the ladder and that is how he came off.[41] The plaintiff confirmed the incident circumstances as deposed to. He confirmed hardly anyone held the ladder for you.[42]
[41]T62
[42]T67
80 The plaintiff confirmed he reported the incident to Darren and Ron on the day. When he told Chris the next day, Chris said “Don’t worry about it, next week we’re not that busy and you’ll get a chance to rest your shoulder”.[43]
[43]T68
81 The plaintiff agreed there were no witnesses as the defendants’ witnesses deposed.[44]
[44]T69
82 The plaintiff confirmed he was too faithful to the company and as he continued to work, there was no need to report the incident.[45] He was a manager responsible for others and always told workers to make sure if they got injured, to report it but they were never told if they got injured, to report it.[46]
[45]T69
[46]T69
83 The plaintiff worked for the first defendant for 35 years. They were like family. He had pride in his work. He wanted to do his best. He was not just going to go off and put a claim in if there was no need for it. He was embarrassed by what had happened.[47]
[47]T70
84 The plaintiff explained reporting the incident meant writing it down in the exercise book.[48]
[48]T70
85 The plaintiff agreed he had spent more time on the forklift than manually unpacking boxes from the container.[49]
[49]T95
86 The plaintiff was asked to demonstrate where he put his arms whilst using the scanner. He had difficulty raising his left arm. He had to use it to grab the label, holding the scanner in his right hand.[50]
[50]T96
87 Having been shown a photograph of the worker scanning, the plaintiff described how he would have put his left hand up higher where on a crewneck top with the tag at the back.[51]
[51]T97
88 The plaintiff confirmed that the physical nature of his duties increased around Christmas. However, he then said he did the same or very similar duties to the rest of the year on his return to work after Christmas.[52] He confirmed when he said he did heavy work 15 to 20 per cent of the time, this work involved unloading of containers.[53]
[52]T100
[53]T101
89 The plaintiff described manually unpacking the containers from inside. He then manually placed empty containers on pallets and transported the pallets by forklift.
90 The plaintiff confirmed he gave Ron the job of the steam tunnel in 2001 because it was the easiest job for him to do. He was otherwise a cutter.
91 In re-examination, the plaintiff confirmed it upset him having to do the toilets.[54]
[54]T108
92 The plaintiff confirmed his answer in cross-examination that he did the same work over Christmas as before, but then went on to explain when everyone was not back to work after Christmas, he and Chris did all the work,[55] including unloading the containers, which he described in further detail. The plaintiff confirmed the problem scanning.[56]
[55]T111
[56]T113
93 The plaintiff demonstrated the posture he adopted scanning crewneck tops. His scanning record was 3,500 garments in a day.[57]
[57]T113
Lay evidence
Sandra Withers
94 Sandra Withers swore three affidavits. She worked as a designer with the first defendant for 27 years, ceasing in 2007.
95 When Sandra needed fabrics, the plaintiff always took them for her to the design department. The fabrics weighed up to 40 kilograms. In her viva voce evidence, she corrected the weight to 40 pounds.
96 The plaintiff also used to bring in rolls of cardboard paper for patternmaking.
97 Sandra witnessed the plaintiff competently carrying out the following tasks:
· bringing replacement cardboard from the design room weighing about 40 kilograms;
· hanging garments on the mezzanine floor and rack and multistorey, as well as the ground;
· monitoring other staff, even if he was injured; and
· helping to empty garments and fabrics from containers.
98 Further, she witnessed the plaintiff being verbally bullied from time to time.
99 In her second affidavit sworn 28 March 2012, Sandra deposed that the plaintiff was required to clean the male toilets, and later the female toilets. She was aware the plaintiff had financial pressures and because of that he was prepared to carry out whatever job he was asked to do without a fuss.
100 Sandra was also aware at times the plaintiff was required to collect items from the mezzanine floor or racks that were high up and in particular, in order to carry the garments, he would have to twist and stretch and apply pressure to various parts of his body.
101 During the 27 years she worked with the first defendant, Sandra was able to say the weights the plaintiff was at times required to lift were very heavy for one person. At times, the plaintiff was asked to bring heavy rolls of pattern paper to the design room. Those rolls, which she believed weighed about 40 kilograms, were then placed onto brackets on top of her table.
102 The plaintiff was also required to carry heavy rolls of fabrics and packs of flannelette in and out of the design room.
103 In her last affidavit sworn 18 March 2013, Sandra described how in her time with the first defendant, the first two years as a freelance designer, she worked with Bob and Bev Batrouney and their children.
104 Sandra then commented on the affidavits of the various employees of the first defendant. She disagreed with Chris’s recent affidavit, confirming that the plaintiff was required to perform physical work and that all his work was of that nature and very repetitive and constant throughout the course of the day.
105 The plaintiff was also under a lot of pressure to carry out his tasks and there were only ever two or three staff working on the stockroom at any given time, which meant the plaintiff was constantly under pressure to keep up with unloading the boxes and garments, rearranging the stockroom and preparing orders.
106 Sandra disagreed with Bob Batrouney’s description of the physical work duties required of the plaintiff. She disagreed the plaintiff did very little physical work and disagreed that he did not unpack the boxes at the steam tunnel or bags dock for despatch. These were part of the plaintiff’s work duties and he performed them regularly.
107 Bob was a hard taskmaster and required a lot from the staff and made it impossible for workers to say no. There was a lot expected of the plaintiff. Sandra disagreed with Ron’s comments that the plaintiff was only required to assist in unpacking containers in the case of emergencies. She disagreed that unpacking boxes and hanging garments onto the rail into the steam tunnel was exclusively Ron’s task, as the plaintiff had also performed those tasks regularly. She disputed scanning and bagging of garments was light work, describing it as heavy work which required considerable effort.
108 Sandra disagreed with Ron’s comment that bagging was done exclusively by Ron, as the plaintiff regularly assisting in bagging. She disagreed with Ron’s comment that the plaintiff only performed very light work.
109 Sandra disagreed with Darren’s comment the plaintiff’s duties were very light and placed no strain on his shoulders. The plaintiff’s duties involved a lot of reaching overhead. She disagreed that the plaintiff was never involved in physically unloading containers and that he was very rarely involved in unpacking boxes. The plaintiff was regularly required to assist in placing garments through the steam tunnel to be transferred to the speed rail and that was not exclusively Ron’s task. She disagreed with Darren’s comment that the task described put no strain on the arms.
110 Sandra disagreed with Darren’s comment that scanning of garments was very light, noting the large orders for Kmart. She disagreed with Darren’s comment that bagging was undertaken almost exclusively by Ron. It was not physically possible for one staff member to do all the packing and plaintiff was regularly required to assist.
111 Sandra disagreed strongly with Darren’s claim the plaintiff ensured he did the lightest work and heavier duties were allocated as the plaintiff participated in all duties. The stockroom was a very busy place and the staff were fully utilised at all times and placed under a significant amount of pressure.
112 Sandra enjoyed her time with first defendant but with the retirement of the older family members, the whole atmosphere changed, with Chris and Jane reprimanding fellow workers for talking during the course of the day. The change in atmosphere affected all staff, and the older staff who had worked for the company a long time felt threatened and undermined and she was made redundant in 2007. Earlier on it was a happier workplace.
113 The plaintiff was a very valued employee and he worked very hard for many years assisting the Batrouneys. He was a very reliable, conscientious and trustworthy employee and always tried his best for the first defendant.
114 In cross-examination, Sandra explained that she worked in the design office located just around the corner from the warehouse. She described the factory area as about the size of two courtrooms.[58]
[58]T122
115 Sandra worked just about four paces around the door out the corner from the factory floor that was photographed.[59] She was probably a little bit further away from the steam tunnel.
[59]T121
116 When asked about her affidavit evidence that all the work the plaintiff did was physical, Sandra said apart from writing down a few things, she would say 96 per cent of his work was very physical and in the early days it was even more so.[60]
[60]T122
117 Sandra saw the plaintiff work a lot harder than the 15 to 20 per cent of his duties he described as heavy physical work. He was always on his feet, apart from doing a bit of calculating of orders.[61] The physical work involved having to do more than admin because the plaintiff did a lot of packing and similar tasks on his feet and then they went outside to get the orders from the trucks.[62]
[61]T122
[62]T123
118 Sandra could not see the trucks being loaded or unloaded but knew when they were there. Quite often the plaintiff would be on the forklift.[63] She thought forklift driving was physical.[64]
[63]T123
[64]T123
119 Sandra described her own work as physical, until computers came in. Before that time, she had to do drawing and cutting by hand. She had to go into the storeroom and ask the plaintiff to bring in lots of material.[65]
[65]T124
120 Sandra confirmed the plaintiff was told he had to clean the ladies’ toilets. Bob made it very difficult for the plaintiff. She was not there, however, for any conversations in this regard, but knew Bob.[66] He did not take into account other people’s feelings.
[66]T124
121 Sandra confirmed she saw the plaintiff regularly unpack containers from overseas, initially material and then fully made garments.[67] She was in and out because the material she used was in the storeroom and if she went out to get the plaintiff he was emptying trucks.[68] She could see what he was doing, if it was not once it could be twice a day, because they were in and out and that was part and parcel of their work.[69]
[67]T125
[68]T125
[69]T126
122 Sandra did not do the lifting but she knew from lifting garments that garments were not light and they were heavier in Winter. In the early stages there was not the construction there is today and there was a lot of lifting and reaching higher and a lot of work was manually done.[70] Gradually things changed and the steam tunnel came in and they started to work overseas and the garments were coming in and they would have to be steam pressed.[71] She was not sure when the steam tunnel came in.
[70]T126
[71]T127
123 Even if the plaintiff had put someone else in charge, when people were away you had to keep garments going in the steam tunnel, so staff helped out.[72] Sandra knew the plaintiff worked on the steam tunnel from time to time after the plaintiff put Ron in charge because people were sick and away.[73] She thought the plaintiff’s evidence that he no longer did the steam tunnel after 2001 was an overgeneralisation because there were times when Ron was sick.[74]
[72]T127
[73]T129
[74]T130
124 The health and safety people came into stronger force later on and forced the Batrouneys to “make things a bit more according to the law of health and safety”. She agreed the work got lighter the more time went on.[75]
[75]T128
125 When it was put to her she could not say how much actual unloading the plaintiff did compared to being on the forklift, Sandra said it was “all hands on deck”.[76] She was there for a lot of the deliveries.[77] She saw the plaintiff quite often regularly assisting and placing garments through the steam tunnel after 2001.
[76]T128
[77]T129
126 Sandra disagreed scanning was a very light task and confirmed the plaintiff’s evidence that when scanning garments from China, the tag was on the back and the person scanning had to lean over the top of the garment. She did that task a couple of times for fun.[78]
[78]T130
127 The plaintiff could dictate what was happening but they were quite understaffed.[79] He would delegate but when it was full on and orders had to be out it, was “all hands on deck” and you got in and did everything, and she saw the plaintiff do that. With the very big orders, even Bob and Chris would come out and help in the later years.[80]
[79]T131
[80]T131
128 Sandra probably observed for about half an hour to an hour of a day what was happening in the storeroom.[81] She never saw the plaintiff sitting around doing nothing and she would just go out there when she needed something. She disagreed she overstated the amount of time she would have watched other people do their duties. It was not a big factory, about the size of two courtrooms, and you had to get in and out to do things.[82]
[81]T132
[82]T132
129 When she was asked about her affidavit evidence of orders in excess of 5,000 to 8,000 garments to be filled in a day, and the plaintiff’s evidence this number would, at most, be maybe 3,000, Sandra said he would have had more of an idea than her,[83] but there would be “a hell of a lot” of garments and they did not go home early that day.
[83]T133
130 Sandra enjoyed working for the Batrouneys while Bev was there but after she left the place changed. Sandra was retrenched six or seven years ago.
131 When asked whether she was upset, Sandra said you ask yourself whether you would be made to go when you did your job extremely well but she was happy to go because it was not a nice place to work anymore. She disagreed there was a sense of bitterness. She had moved on and not looked back.
132 When it was suggested that because of that bitterness she had helped the plaintiff, Sandra said she would try and help because she did not want to see the wrong thing done by him. She put things in her affidavit not to help the plaintiff but just to tell the truth that she verified what she said.
Feride Adas
133 Feride Adas (“Feride”) swore two affidavits, the first in March 2010 and the most recent in June 2013.
134 Feride knew the plaintiff as an outdoor subcontractor with the first defendant between 1990 and 2003 and had almost daily contact with him.
135 When Feride’s driver delivered garments to the first defendant (about 5,000 a week), the plaintiff was in charge of the warehouse, usually assisting with unloading and stacking. Work was usually done fast and involved lifting and bending, and the garments were stacked in the warehouse on rails with the second rail high and had to be reached with a step. At other times while the driver delivered goods to the first defendant’s premises, the plaintiff would deliver the cut material to her factory to be made up.
136 The material arrived in bundles consisting of up to 300 garments in one bundle which weighed about 40 to 50 kilograms and was far too heavy for a woman to lift.
137 The plaintiff also had to do paperwork but because of the workload he was always doing something and usually working under a lot of pressure.
138 In her supplementary affidavit, Feride confirmed she attended the factory three or four times a week on average and on most occasions dealt with the plaintiff. He showed her which bundles to collect and as they were very heavy, she arranged for a driver to collect them.
139 The plaintiff regularly loaded goods into Feride’s car because the bundles were often too heavy for her to lift as they weighed in excess of 25 and up to 40 to 50 kilograms.
140 Feride observed the plaintiff performing work duties. He was almost always carrying a garment and sometimes large bundles of garments which were heavy. She often saw him climbing onto the warehouse rails to retrieve garments or make room for other stock. She regularly saw him unpacking boxes, handling large amounts of items and moving about the premises, picking stock orders for delivery and scanning and bagging garments.
141 The plaintiff had two assistants, Ron and Darren, working with him. The plaintiff regularly assisted them to perform their jobs. They worked as a team to ensure stock was handled and delivered properly.
142 The plaintiff often took on extra responsibilities to ensure all jobs were completed properly and she observed he often worked harder than Ron or Darren. The duties she saw the plaintiff performing were repetitive and required a lot of heavy lifting and were very stressful. It was an environment with a lot of pressure on staff to perform and have the goods ready for despatch and the plaintiff appeared to take on an enormous amount of responsibility and it was a job that two or three people could easily have done.
143 The plaintiff regularly assisted Feride during her involvement with the first defendant. He attended her premises once a week to ensure the goods were packed properly for despatch.
The Defendants’ lay evidence
Mike Patchett
144 Mike Patchett swore an affidavit on 29 September 2011, exhibiting statements dated 24 November 2009, one undated and one dated 15 December 2009.
145 In his first statement, Mike set out he had been with the first defendant for an excess of 22 years and was the administration manager.
146 The first statement focussed on weekly import meetings and allegations by the plaintiff of pressure of work and the plaintiff’s request for extra time off over Christmas, allegedly due to stress.
147 Mike denied an allegation that it was suggested to the plaintiff’s wife that the plaintiff may be best served by not returning to work. It was completely incorrect to suggest that the first defendant had forced workers out who were either too old or were suffering illness. Mike denied having made a joke about the plaintiff having to do cleaning duties, nor did he overhear any others making jokes.
148 The plaintiff had ladders in the workplace he may have occasionally used. However, Mike was not aware of any incident where the plaintiff fell from a ladder and there was no report to him of this happening, nor of any staff witnessing such an incident in 2008 or any other time he was aware of.
149 There was also no entry made within the first defendant’s accident/incident register in relation to the alleged incident in 2008.
150 In his undated statement, Mike mentioned the plaintiff’s financial problems in 2008, losing his house because of family debts he had guaranteed and the need to garnishee his wages in November 2008.
151 Mike noted that on the plaintiff’s return to work following his heart attack in 1997, there was a change in his duties which would see him do more administrative work, less physical work and more forklift driving.
152 Mike noted there had been no increase in the volume or complexity of the plaintiff’s work and, in fact, over the last five years there had been a substantial reduction in the work that went through the warehouse due to a downturn in the amount of work the first defendant had been receiving.
153 Mike noted certainly there had been a bit more computer work for the plaintiff to do, but no heavy physical work, and the last time he would have done anything of that nature would have been in 1997.
154 He noted the plaintiff had never reported suffering from workplace stress, nor did he report any type of shoulder injury or right arm problem prior to going off on Workers’ Compensation and lodging his claim.
155 Mike stated the plaintiff was an experienced worker and supervisor of two staff, and was certainly well aware of the need to report any accident.
156 Mike noted in September-November 2005, when two staff were retrenched, the plaintiff was asked if he would do the cleaning which involved wastepaper bins and two toilets. Mike understood the plaintiff willingly agreed to do those duties. However, after complaints about his work cleaning the toilet, the first defendant decided to employ a contract cleaner in about July 2007, but the plaintiff had to keep cleaning the wastepaper bins.
157 The plaintiff had never reported to be suffering from any type of workplace harassment or stress.
158 Mike stated the plaintiff had lodged one prior claim for compensation in relation to a back injury, which was assessed as a minor claim in May 1999, and he had two sessions of physiotherapy.
159 Mike knew the plaintiff had attended a cardiologist over the past year, which was the timeline running parallel to the recent financial pressure he had been under at home. He thought the plaintiff was certainly very upset and agitated when he received solicitors’ letters regarding the debt, and his daughter’s issues with her credit card.
160 Given the information available to him, Mike could not support the plaintiff’s workers’ Compensation claim as being valid, and believed it was outside of work factors that had caused any stress or strain, as well as there being no report within the workplace of the plaintiff suffering a left shoulder or right arm injury prior to ceasing work on 1 December 2008.
161 In his third statement dated 14 December 2009, Mike set out the plaintiff’s non-office related tasks. He was involved in the storage and retrieval of stock which required the use of ladders, and he also participated in picking, packing and despatch of goods, and general warehouse activities. He was required to carry out a stocktake every six months.
162 Since about 1996, the plaintiff was required to use a forklift and also arranged for its maintenance. He was also required to ensure that the boiler and steam tunnel were maintained in good working order.
163 Mike noted the plaintiff was also involved in the unloading of cartons from trucks and containers, with large cartons weighing up to 16 kilograms and small cartons weighing 3 to 4 kilograms. This was largely done manually before using forklifts in 1996.
164 The plaintiff was also involved in the handling and moving of cartons of loose garments around the warehouse. The plaintiff would load trucks with outgoing garments, mostly in cartons weighing between 3 and 10 kilograms. Some garments were placed in hanging bags which weighed about the same as the cartons. The warehouse staff worked as a group in this activity.
165 In 1996, changes were made, reducing the amount of manual handling, and a new forklift was purchased and new pallet racking installed.
166 Following the plaintiff’s heart attack in 1997, his work became much more supervision and office-orientated. His office duties continued to include those carried out before. However, his heart attack meant the amount of this type of work, including supervisory work, was increased, whilst the manual activities in the warehouse were reduced on the recommendation of his doctor.
167 Mike noted, in about November 2001, a speed rail system was installed for handling an anticipated increase in processing and despatch of hanging goods. The existing boiler and steam tunnel were replaced and the new equipment was connected to the speed rail system.
168 From about 2002, the plaintiff was involved in producing invoices for scanned goods and, at some later date, produced invoices for non-scanned goods. He would also prepare electronic invoices. He would arrange for and supervise others in carrying out the stocktake.
169 Performing non-office manual tasks after the heart attack, the plaintiff would have used ladders within the warehouse, but only on a very limited scale. He noted the plaintiff supervised picking, packing, scanning and despatch of goods by others, and he also did limited picking and scanning of orders himself. He would occasionally use the forklift.
170 The plaintiff continued to be responsible for ensuring the boiler, steam tunnel and forklift were maintained in good working order. He would occasionally be involved in the unloading of trucks and hanging garments on the speed rail, and that involved the moving of hanging garment racks on the rails’ rollers which were then raised into the trucks by motorised conveyor.
171 Mike noted the plaintiff would also arrange for others to carry out unloading trucks and containers with incoming garments, all of which were in cartons, and sometimes drive the forklift in that job.
Jane Batrouney
172 Jane swore an affidavit in September 2011, having previously made a statement on 24 November 2009, and another also during 2009.
173 Jane was the managing director, and had been since 2003. She had been employed by the company since 2000 and had known the plaintiff all her life.
174 In her first statement, Jane referred to the work stress allegedly relating to meetings and said the plaintiff did not raise any issues with her of suffering from any pressure at work or having to work long hours. She said the company had always been flexible about having time off.
175 In her working life, Jane had never met or spoken to the plaintiff’s wife or knew of anyone at the company making suggestions he would be better served not coming back. It was simply untrue that workers had been forced out when too old or ill. She noted the number of staff members who worked well into their sixties and that Ron and Darren had both suffered illness and injury not precluding them from returning to work and being long-term employees.
176 Jane personally denied having made jokes about the plaintiff cleaning toilets, nor was she aware of any jokes being made.
177 There was no report to the company of an incident involving the plaintiff falling from a ladder in 2008 or at any other time.
178 Jane’s second statement set out that she had never had any report of the plaintiff suffering a left shoulder or right arm injury prior to the lodgement of his current workers’ compensation claim documentation.
179 Jane stated the plaintiff was asked and agreed to do cleaning work and it was not forced on him. He was never humiliated or harassed in relation to doing that work. He never made any comment to her about feeling demeaned. She was disappointed by his allegations, and categorically stated that, to the best of her knowledge, he had never been physically or verbally harassed or bullied.
Chris Batrouney
180 Chris swore an affidavit of 29 September 2011, exhibiting his statement dated 24 November 2009 and undated statements. He was a director of the first defendant since June 2003 and knew the plaintiff his entire life.
181 No allegation about long hours or pressure at work leading to a heart attack had been made by the plaintiff. Chris mentioned what was said at meetings and there was no report of the plaintiff being under pressure.
182 Chris had not spoken to the plaintiff’s wife for at least 10 years, nor did he know of anyone calling her and saying they would be better off if the plaintiff left the company. It was simply untrue and disappointing the plaintiff alleged people were forced out because they were too old or suffering from an illness.
183 At no time did he personally make jokes, nor was he aware of any jokes about the plaintiff being required to perform cleaning duties.
184 Whilst he was aware part of the plaintiff’s job in the warehouse may have involved him climbing ladders, Chris believed his job, certainly in 2008, was more of a supervisory role. He never personally witnessed the plaintiff falling from a ladder, nor was he aware of any accident or incident involving the plaintiff falling from a ladder ever having happened at the workplace.
185 Chris’s second statement included a categorical denial of harassment or bullying of the plaintiff in any way or that the plaintiff was being forced out of the company. There were performance reviews during which the plaintiff could have brought up those allegations and he did not.
186 Chris swore a further affidavit on 14 June 2013, commenting on the plaintiff’s duties from 2003. Until the plaintiff resigned, he observed him performing his work and would visit the warehouse frequently on a daily basis.
187 As warehouse manager, the plaintiff’s duties were largely supervisory and administrative. Because of his heart attack, he avoided heavy physical work. Chris could not recall the plaintiff being involved in unloading containers other than with a forklift, unpacking boxes at the steam tunnel, holding 20 garments in one hand while picking orders or packing boxes or bagging garments.
188 The physical aspect of the plaintiff’s work was limited to picking orders, which was light work, and scanning barcodes, which is extremely light, duties he shared with Darren.
189 On the day he resigned and at any time prior thereto, the plaintiff made no mention to him of having sustained a work injury to his shoulder and he did not believe the plaintiff’s work was heavy enough to have caused that injury.
190 Bob Batrouney swore an affidavit dated 29 September 2011 exhibiting a statement of 23 January 2009. He has been a director of the first defendant for many years and has known the plaintiff since he started with the company in 1973.
191 Bob believed it was home and outside of work factors that were causing any stress from which the plaintiff might be suffering. They had never tried to force the plaintiff out after he suffered a heart attack, and he was surprised and disappointed at the allegations, and could personally say, to the best of his knowledge, the plaintiff had never been harassed or bullied within the workplace.
192 Bob swore a further affidavit on 14 June 2013. He was then semi retired.
193 After 1997, Bob visited the warehouse adjacent to the office numerous times daily and had a good understanding of what was happening. From that time, the plaintiff did very little physical work, apart from picking orders, which was light, and scanning labels, which put no stress on his arms at all. As manager and supervisor, he could delegate the heavier tasks to Darren and Ron, which he did.
194 Bob could not recall the plaintiff physically unloading containers onto pallets. Ron and Darren did that work, with the plaintiff operating the forklift. The plaintiff may have assisted unloading in an emergency, but that would have been extremely rare. He did not remember the plaintiff unpacking boxes at the steam tunnel or bagging stock for despatch; that was done by Ron.
195 Bob could recall the plaintiff picking stock, especially stock ordered for Myer, but he did not want to scan those orders due to administrative issues. That was reasonably light work, transferring garments from one rack to another.
196 The plaintiff could handle as many garments as he felt comfortable doing at one time, and there was no time pressure. Other than administration work, the plaintiff’s physical work was mostly limited to scanning barcode labels on stock for despatch, a job requiring virtually no physical effort.
197 On the day he resigned, the plaintiff made no mention of a shoulder injury. It was a complete surprise when the plaintiff made that claim. Bob had no knowledge of an injury to the plaintiff’s shoulder as a result of falling from a ladder and, if it had occurred, he would have known about it.
Ron Farrugia
198 Ron Farrugia swore an affidavit dated 29 September 2011, exhibiting a statement dated 24 November 2009. He had then been with the first defendant for 19 years, the first ten years as a cutter, and the last nine years as a storeman. He had never made a joke about the plaintiff cleaning, nor had Darren, as they both cleaned the toilets. He never heard a joke about it.
199 Ron could say that although there were ladders in the warehouse and the plaintiff may have climbed them at different times as part of his job, he did not see the plaintiff fall from a ladder in 2008 or at any other time. He was not aware of the plaintiff ever falling from a ladder at work, nor anyone ever saying that they witnessed him doing so.
200 Ron swore a further affidavit on 14 June 2013.
201 On his return to work after his heart attack, the plaintiff virtually did no physical work at the warehouse and he only drove the forklift, with unloading and emptying onto pallets done by Ron and Darren. The plaintiff would only assist in unpacking in the case of an extremely rare emergency.
202 Unpacking boxes and hanging garments onto the rail into the steam tunnel was exclusively Ron’s job. Others, on rare occasions, would help, but that was seldom the plaintiff. After the speed rail was installed in 2001, the hanging of garments was less difficult because the rail required nothing more than a gentle push and the ladder provided a sure footing. The plaintiff was involved in picking, which he shared with Darren, and also scanning, which was very light work. Ron exclusively did bagging and packing into boxes for despatch, and the plaintiff only did it in a rare emergency.
203 After his heart attack, the plaintiff only did very light work, which he was able to organise for himself as manager, and Darren and Ron undertook the heavier work.
204 Ron knew nothing about the plaintiff falling from a ladder on the mezzanine in 2008. He was most surprised when he was told later that the plaintiff alleged that incident. If it had occurred, he could not have helped hearing about it, but the plaintiff never mentioned it to him.
205 On the last day he worked, the plaintiff said nothing about a shoulder injury, and said he was giving the job away to go on stress leave, but he did not say what caused his stress.
206 Ron was aware the plaintiff did not enjoy cleaning the bathrooms, but they all had to do it. There was some good-natured banter in the warehouse on a range of matters, but he denied the plaintiff was harassed or bullied. He was as good at giving it out as anyone else.
Darren Pauthenet
207 Darren Pauthenet was employed by the first defendant as a storeman. He swore an affidavit on 29 September 2011, exhibiting his statement of 24 November 2009.
208 Darren was aware the plaintiff was not happy about doing the cleaning and thought, as a warehouse supervisor, it was not something he should have to do. However, he never made any jokes about it, nor did Ron and nor was he aware of others making jokes. He did not make jokes because he was cleaning the toilets with Ron and the plaintiff.
209 Darren could say that certainly ladders were used as part of the job in the warehouse. However, he never witnessed the plaintiff fall from a ladder in 2008 or at any other time, nor was he aware of any witnesses to any alleged fall by the plaintiff from a ladder in the warehouse.
210 Darren swore a further affidavit on 14 June 2013.
211 After 1997, the plaintiff’s work was very light and placed no strain on his shoulder.
212 The plaintiff was never involved in physically unloading containers. That was done by Ron and Darren. The plaintiff was only involved in transporting the pallet on a forklift. On very rare occasions, he might have assisted in unloading, but he could not recall that happening.
213 The plaintiff was rarely involved in unpacking boxes, which was done almost exclusively by Ron, and it involved retrieving a pallet of stock by hand truck, which was a light task. Boxes were then unpacked and garments hung on a rail to the steam tunnel. This may have been done by the plaintiff once a month at most, if Ron and Darren were not available.
214 When the clothes emerged from the steam tunnel, they were transferred to the speed rail almost exclusively by Ron. Pre speed rail, they were hung on a mobile rail and transferred to a three-tiered rack, which was a three-man operation as the ladder did not reach that far, and the plaintiff was involved in that work. However, after November 2001, the rail was used to transfer garments to storage racks above and below the mezzanine, and garments slid easily along the rail on a ball bearing track with a gentle push. A mechanical device lifted garments to higher levels, thus putting no strain on the arms.
215 The three-tiered racks were used after that date for overflow storage. However, shortly thereafter, a tall safety ladder, constituting a flight of stairs and platform, was purchased, which prevented the need to hold onto the racks for stability when racking garments on the uppermost level.
216 The plaintiff was involved in some picking of stock for orders, work he shared with Darren, but generally, it was not done by each of them for more than two-and-a-half-hours a day. The stock came into the picking area on mobile racks by either Ron or Darren, and garments were individually packed from the racks and hung on adjacent racks to make the order. It was not necessary to hold 20 garments at a time in one hand while that was being done.
217 The garments did not have to travel far and one would hold as many as was comfortable, which varied, depending on whether they were summer or winter garments.
218 The plaintiff was more often involved in scanning, which was described as a very light task as the garments did not need to be lifted to undertake the task. The plaintiff was rarely, if at all, involved in bagging of garments for despatch. That was almost exclusively Ron’s job and he could not recall the plaintiff doing it. It involved pulling a bag from underneath a batch of 10 or so garments to enclose them while they were on the rack. That was reasonably physical work so that is why the plaintiff did not do it.
219 The plaintiff was seldom involved in packing orders into boxes because that was done by Ron and Darren. A large number of orders for Kmart were loaded straight into the delivery truck by speed rail and required little physical effort. Packing boxes was relatively light work as one would not need to handle more garments than was comfortable.
220 The plaintiff, as manager, allocated duties and tasks as he saw fit and he ensured he did the lightest work, and the heavier work went to Ron and Darren. There were no time pressures except Mothers’ Day and Christmas Day. It was not necessary to handle excessive numbers of garments to get the job done and it would not be possible to hold 20 winter-weight garments in one hand. They were not understaffed in the warehouse and the workload was manageable. There were originally three in the warehouse, then one left and he was not replaced, nor was the plaintiff when he left.
221 Darren had no knowledge of the plaintiff falling from a ladder whilst hanging garments on a rack in or about 2008. Whilst there was occasionally a need to transfer garments to a high rack using a ladder, which involved some reaching, it was not the plaintiff who was required to do that.
222 Had the plaintiff fallen to the ground, as he suggested, it would not have been missed by anyone in the warehouse or out the back, as any object falling on the floor made an awful noise. He emphatically denied he was told about the incident.
223 When the plaintiff resigned, he made no mention of a shoulder injury and told Darren he was going off due to stress. Darren was not aware of any shoulder injury suffered by the plaintiff and believed his work was too light to have caused one.
Photograph
224 A photograph of a worker engaged in scanning was tendered by the defendants. It showed the worker holding the scanner in his right hand and holding a tag on the clothing at shoulder height, at the front of the garment, in his left hand.
Overview
225 The first issue for consideration in this case is whether the plaintiff suffered a compensable injury on or after 20 October 1999.
226 Section 134AB(1) of the Act permits the bringing of proceedings only in respect of compensable injuries “arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999”.
227 Thus, it is incumbent on the plaintiff to establish by probative evidence and with some specificity:
(a)what injury is relied upon;
(b)further, that that injury is referable to employment on or after 20 October 1999.
228 Counsel for the defendants submitted there was no compensable injury either as a result of the incident or due to the plaintiff’s work duties from October 1999.
229 The main theme of the defendants’ witnesses’ most recent affidavits was that after the plaintiff’s heart attack in 1997, his work was not physical or heavy and he had the capacity to direct the allocation of work.
230 It was submitted there were some inconsistencies in the plaintiff’s evidence as opposed to the unchallenged evidence of the defendants’ witnesses. Their evidence went through in some detail what the plaintiff did and did not do. Ron and Darren were on the floor with the plaintiff, unlike his witnesses, and they both gave a very different version of the events to that of the plaintiff.[84]
[84]T141
231 It was submitted that the plaintiff’s evidence in relation to the amount of work he had to do over the Christmas holidays was inconsistent, having initially said he unloaded containers with Chris, sharing the lifting and forklift driving. Then, in cross-examination, the plaintiff agreed that when he came back after leave, he did duties similar to what he did during the rest of the year. He also conceded he spent most of the time doing container work on the forklift.
232 It was submitted it was unlikely, when scanning, that the plaintiff would have been working at the sort of height he described.[85]
[85]T142
233 It was submitted Ms Adas’ affidavit was really a blanket statement about what happened at the workplace between 1990 and 2003 and she did not differentiate between the duties performed before and after the heart attack.[86]
[86]T143
234 It was submitted Mrs Withers’ evidence was really of very little evidentiary value. Her affidavit was criticised, in that she initially deposed the plaintiff lifted 40-kilogram weights, which she later corrected to pounds in her viva voce evidence.[87] It was submitted she overstated the extent of the plaintiff’s physical work, describing it as 96 per cent of his duties, a figure in sharp contrast to the plaintiff’s evidence in this regard.
[87]T143
235 The ultimate submission of the defendants was that the plaintiff’s work processes after 1997 were light in nature and, on his own evidence, his work was physical 15 to 20 per cent of the time.[88]
[88]T141
236 In response, Counsel for the plaintiff submitted that the plaintiff is required to prove that employment was a material contribution to the injury and it need not be the only cause.[89] It was submitted the plaintiff had adequately discharged that onus.
[89]T156
237 Counsel for the plaintiff submitted that the work process “was almost designed to ensure workers suffered injury”.[90] In this regard, there was the uncontradicted evidence of the plaintiff that not only did he suffer injury, but Darren and Ron also suffered shoulder injuries.[91]
[90]T157
[91]T157
238 It was submitted that on the evidence, there was no issue but that the work involved was repetitive and heavy and placed stress on the arms of individuals who were required to perform it, and causation was clearly made out.[92]
[92]T157
239 It was submitted there was a contrast between recent affidavits relied upon by the defendants and those sworn earlier as to the plaintiff’s work duties. Reference was made to what appeared to be recent recollections of Darren, Ron and the Batrouneys as to the plaintiff’s duties, not referred to in their earlier affidavits.
240 Looking at those affidavits, I accept that submission.
241 Jane Batrouney’s first statement, 2 pages dated 16 November 2009, dealt with the plaintiff’s stress claim. In one paragraph she mentioned that there was no report to the first defendant of an incident involving the plaintiff falling from a ladder in 2008 or at any other time.
242 In her undated statement, the total focus was on the plaintiff’s stress claim and confirmation by Jane of the lack of incident report.
243 Jane did not swear a supplementary affidavit.
244 Chris’s first statement of November 2009 was similar to Jane’s, focussing almost entirely on the plaintiff’s stress claim and mentioning in one paragraph that he did not witness the incident, nor was he aware of any incident. He conceded the plaintiff’s job may have involved him climbing ladders but he believed the plaintiff’s job, certainly in 2008, was more of a supervisory role.
245 Chris’s second undated statement related to the stress claim, and he also confirmed there was no report of a workplace injury and that the plaintiff may have mentioned in general conversation that his right arm was “a bit sore”.
246 In his June 2013 affidavit, Chris described the physical aspect of the plaintiff’s work was limited to picking orders and scanning barcodes.
247 Bob Batrouney’s January 2009 statement related solely to the stress claim. His June 2013 affidavit generally denied the plaintiff was engaged in heavy work after his heat attack, but he admitted the plaintiff was engaged in picking and scanning and, on rare occasions, he did unloading.
248 Ron Farrugia’s short November 2009 statement mentioned the presence of ladders in the warehouse and that the plaintiff may have climbed them at different times as part of his job, but he did not see the plaintiff fall from a ladder at any time.
249 In his more detailed June 2013 affidavit, Ron described how the plaintiff unloaded containers in an emergency, that he seldom worked on the steam tunnel and rarely did bagging and packing. The plaintiff did engage in picking and scanning.
250 Strong reliance was placed by counsel for the plaintiff on a number of matters in Mike Patchett’s affidavits. It was submitted when he made his first statement in November 2009 when the issues would have been very fresh in his mind, Mike mentioned nothing about the plaintiff’s work duties and process and did not refer to a change to administrative duties and no physical work after the his heart attack, issues, it was submitted, one would expect to be addressed.
251 Mike however stated ladders were used at the factory and the plaintiff was required to use them.
252 Whilst Mike described in his December 2009 statement that after his heart attack, the plaintiff’s work became more supervision and office-orientated, he then reiterated the plaintiff would have used ladders within the warehouse, but only on a very limited basis. The plaintiff supervised picking, packing, scanning and despatch of goods of others and also did limited packing and scanning of orders himself. He occasionally used the forklift and would occasionally be involved in the loading of trucks with hanging garments on the speed rail. This job involved the moving of hanging garment bags on rails which were then raised into trucks by motorised conveyor.
253 It was submitted this description of the plaintiff’s post-heart attack duties strongly corroborates Mrs Withers’ evidence.[93]
[93]T159
254 Mike did not swear an updated affidavit.
255 Darren Pauthenet’s brief statement of November 2009 mainly dealt with the stress claim. He noted also, whilst certainly ladders were used as part of the job in the warehouse, he had not witnessed the alleged incident or a fall at any other time by the plaintiff nor was he aware of any witnesses to the incident.
256 Darren’s June 2013 affidavit was more detailed, describing the plaintiff’s work as very light. He described how the plaintiff may have assisted in unloading containers in an emergency. The plaintiff very rarely was involved in unpacking boxes, maybe once a month. The plaintiff was involved in some picking of stock for orders, but the picking work was generally for not more than two-and-a-half hours a day. The plaintiff was more often involved in scanning. He rarely engaged in bagging and packing.
257 All witnesses agreed there was the use of ladders as part of the work process.
258 It was conceded the plaintiff was involved in scanning, which I accept required the use of arms above shoulder height as the plaintiff described, particularly when scanning the tags on crewneck tops.[94]
[94]T162
259 I accept that since his heart attack in 1997, whilst the physical nature of his work was somewhat reduced, the plaintiff continued to engage in repetitive work involving both arms in activities such as scanning, picking and packing garments and also at times manually unloading containers.
260 Whilst she did not work on the floor, Mrs Withers was familiar with the weight of garments and material she was handling daily and she required the plaintiff’s assistance as they were too heavy for her to carry.[95] In terms of any suggested overstatement in her evidence, her viva voce evidence was to the effect that she considered any duties other than administrative to be physical.
[95]T164
261 Whilst she confirmed the weight of items the plaintiff was required to lift at work, I accept however Ms Asas’s affidavit lacked detail as to when the plaintiff did the various duties described.
262 I accept that after 1997, the plaintiff, in addition to administrative duties, was regularly involved in physical and repetitive work at the factory. Many of his duties involved moving bundles of garments of varying weight, to and from racks which were 1.6 metres high. At times, he had to use a ladder to access these garments.
263 I accept that the factory was a high pressure workplace, particularly at times when large orders from clients such as Target had to be filled. On these occasions, the plaintiff’s ‘hands on’ work increased. At times, the plaintiff was required to manually unload containers, although his evidence as to the time spent on this job was somewhat unclear.
264 Counsel for the plaintiff also submitted the plaintiff’s case was supported by radiological evidence[96] and no other explanation was being proffered as to the tear of the supraspinatus which was shown on ultrasound in late 2008.
[96]T164
265 It was also submitted that the plaintiff’s complaints to Dr Malekzadeh on 27 November 2008 of pains all over his body involved his left shoulder and right elbow, as well as hips, as the plaintiff explained in his viva voce evidence. This complaint was fairly contemporaneous with the plaintiff ceasing work.[97]
[97]T164
266 I accept that the type of work in which the plaintiff engaged was likely to be conducive of a shoulder injury. The consensus of medical evidence is that the work system could place strain on shoulders and was likely to produce the very injury about which the plaintiff complained.[98]
[98]T162
267 Taking into account the lay and medical evidence and accepting the plaintiff as a witness of truth, I am satisfied that the plaintiff’s employment was a material contributing factor to his left shoulder condition, and continues to be so.
The incident
268 Counsel for the defendants submitted it was critical that the three witnesses to whom the plaintiff said he reported the incident all denied awareness of it and maintained they knew nothing of it until after the plaintiff finished work.[99]
[99]T139
269 It was submitted it was not a plausible excuse that the plaintiff did not report the incident out of loyalty to the first defendant when he reported a minor back injury in 2002 which required only some physiotherapy treatment.[100] On that basis, it was submitted that if he did suffer an injury in the incident, the plaintiff would have had no issues in reporting it.[101]
[100]T140
[101]T140
270 In response, Counsel for the plaintiff relied upon the plaintiff’s evidence that he felt under siege at work, with his phone calls being monitored and it having been suggested to his wife he leave work. It was submitted the plaintiff was a very hardworking man who felt his job was at risk and had been directed to carry out tasks which were very demeaning, given his seniority and length of service.
271 It was submitted the plaintiff understandably saw himself as part of management and he did not submit a claim as he was still able to work, not fully appreciating the seriousness of his shoulder injury until he ceased work at the end of 2008.
272 Given these factors and his loyalty to the senior members of the Batrouney family, it was submitted it was quite explicable the plaintiff did not file an incident report. Further, his earlier claim was made as he required immediate treatment and he was not “making a meal” of that, because he did not have any time off work.[102]
[102]T165
273 I found the plaintiff to be a credible and truthful witness and I accept that the plaintiff did suffer injury in the incident as he described.
274 Whilst the defendants’ witnesses denied knowledge of the incident, they accepted ladders were being used in the factory.
275 I accept the plaintiff’s explanation that he did not report the incident in April 2008 because of the general environment in the factory and his concerns about his job and also his loyalty to particularly the senior members of the first-defendant company, having worked there for some thirty-five years.
276 I accept that the plaintiff reported an earlier injury because it was one that was of limited scope where he required immediate treatment and he in fact took no time off work.
277 I am satisfied in all the circumstances, that the plaintiff suffered injury to his left shoulder in the incident.
495 The plaintiff told Mr Dooley that about thirteen years ago, unrelated to his work and probably due to smoking and stress, he developed heart problems, having a heart attack which required insertion of a stent. After surgery, he made a reasonably good recovery but from time to time was still troubled by angina, particularly when stressed. Mr Dooley noted the plaintiff’s heart condition was one of the major factors in his giving up work and the decision to retire permanently.
496 The plaintiff told Mr Dooley his shoulder was aggravated greatly by a fall from a ladder in April 2008. The ladder had slipped and he had grabbed a bar above his left hand, jarring his left shoulder. He managed to carry on work for the rest of the week and seemed to improve over the weekend, but ever since his shoulder had been very much worse. As stated, he made a decision not to return to his pre-accident duties after ceasing work in December 2008 and he had not returned to any alternate work. Mr Dooley noted the decision was made partly on the basis of the plaintiff’s chronic heart problem and partly on the basis of his left shoulder condition.
497 On examination, the plaintiff had signs of residual physical injury to his left shoulder, having developed adhesive capsulitis following surgery. There were no impingement signs of residual physical rotator cuff injury except the plaintiff had limited movements relating to the development of adhesive capsulitis following the surgery. His left shoulder joint was stable in all directions and had limited movement in all directions.
498 No investigations were available. Mr Dooley confirmed the MRI scan showed evidence of rotator cuff injury with biceps tendinopathy and supraspinatus tendinopathy but without high grade partial or full thickness tear. On the MRI scan, the plaintiff also had evidence of subacromial and subdeltoid bursitis with partial tearing of the origin of the biceps tendon at its glenoid attachment.
499 In addition to coronary artery disease, Mr Dooley thought the plaintiff also suffered from tendinosis affecting the supraspinatus tendon, with subacromial bursitis, for which he had had surgery. In the process of recovering from surgery, the plaintiff had developed adhesive capsulitis, which Mr Dooley noted often complicated the surgery performed in people of the plaintiff’s age and often associated with coronary artery disease. He considered the plaintiff’s left shoulder condition was work related.
500 Mr Dooley considered the injury occurred mainly as a result of the gradual process which involved repetitive use and lifting of both arms to above or at shoulder level over a long period, but was further aggravated by the incident.
501 Mr Dooley noted the plaintiff had not returned to any employment since ceasing work in December 2008. He was not intending to return to any form of work in the future. Mr Dooley noted the plaintiff was retired partly because of his chronic heart condition and also because of his left shoulder, which prevented him from returning to his previous employment.
502 In theory, despite his heart problems, Mr Dooley thought the plaintiff would be fit for at least part-time work in any work that did not involve the use of his arms with repetitive work at or above shoulder level or involve any lifting of weights beyond a few kilograms. To be practical, Mr Dooley noted no prospective employer was likely to take the plaintiff on for any suitable work either part or full time.
503 Mr Dooley thought the prognosis was only fair but hopefully he would regain further movements in the next three to six months.
504 Mr Dooley provided a supplementary report in January 2010, having perused the employer’s summary of the plaintiff’s work duties during 37 years.
505 In reply, it was still unclear to him as to whether the plaintiff ceased work mainly because of his heart or because of his left shoulder, but Mr Dooley noted the probabilities were that both factors were major factors concerning the decision to cease work.
506 Taking the left shoulder condition into account only, when Mr Dooley examined the plaintiff, it did seem aggravation caused by the alleged injury in the incident was the main factor in aggravating his shoulder condition. Mr Dooley noted it may well have been that if the incident had not occurred, he would have continued to work until the present date and beyond. Mr Dooley advised, therefore, his opinion was largely unaltered.
507 Mr Dooley’s final opinion was that the left shoulder condition was work-related by the nature of work the plaintiff was doing over a long period, initially and mainly aggravated by the incident. He noted the plaintiff would improve further following the September 2009 surgery. He noted it may take eighteen months to two years for the left shoulder to regain full or near full movement. Thus Mr Dooley concluded the plaintiff had not sustained a serious medical condition affecting his left shoulder.
508 Mr Dooley therefore believed the plaintiff will be fit almost certainly within the next twelve to eighteen months for a wide range of lighter work that did not involve repetitive use of his left arm, particularly at or above shoulder level. He thought the plaintiff would probably reach a stage where he would be able to lift weights beyond a few kilograms up to 7 to 10 at a time. Mr Dooley noted the plaintiff’s heart condition was probably the major factor in giving up work and making the decision to retire permanently. If it were not for that, Mr Dooley thought the probabilities were that the plaintiff would have continued to work in a lighter occupation that did not involve heavy repetitive use of his left arm. However, following surgery, he had developed a post-operative complaint of adhesive capsulitis from which he was still recovering and it was temporarily disabling him from returning to suitable light work.
The Defendants’ medical evidence
509 Mr Ronald Haig examined the plaintiff in March 2009. In terms of history, he noted the plaintiff was not currently working, having discontinued work in the first week of December on his cardiologist’s suggestion. He was currently using long service leave.
510 The plaintiff told Mr Haig that during April last year on a date he could not recall, he was standing on a ladder and the ladder began to slip. He made a grab with his left arm to prevent himself falling and following his shoulder was painful for three or four days and then eased.
511 However, it later became painful in an intermittent fashion, particularly with an increased workload. The pain increased over a period of time but then stabilised. The plaintiff became aware of same lack of movement in November which he thought had been getting worse.
512 On examination, Mr Haig thought the plaintiff appeared genuine in his complaints. There was no tenderness of the left shoulder and it had a normal contour and all movements were significantly reduced.
513 Mr Haig noted the investigations to date.
514 Mr Haig did not believe the plaintiff’s condition arose out of or in the course of his employment. Rather, he believed the plaintiff had a frozen shoulder which was constitutional in origin. He believed there was an area of conflict with the first defendant which may impact on the plaintiff’s symptomatology. However, he did believe the plaintiff had a painful stiff shoulder for which he stated his diagnosis.
515 Mr Haig considered the plaintiff had a current work capacity from the point of view of his shoulder. The only restrictions that would apply should the plaintiff return to his original job would be such that he was not required to use his arm over shoulder height or at extremes of other movements. He noted the plaintiff was not on any specific treatment for his shoulder complaint.
516 Whilst Mr Haig gave that working diagnosis, he believed it would be worthwhile performing an MUA and intra-articular injection of a steroid-local anaesthetic combination. This would be followed by physiotherapy to capitalise on the improved range of motion.
517 Mr Haig believed the plaintiff’s condition had stabilised and that he had plateaued in terms of pain and range of motion. He noted, however, the natural history of a frozen shoulder was one of spontaneous improvement over a period of time and that improvement may yet have some time to run. He confirmed the MUA frequently shortened the natural history of the condition. Mr Haig noted the plaintiff was then off work for other reasons than his shoulder. He concluded the frozen shoulder was constitutional in origin and not work related. He thought the natural history was one of spontaneous resolution, although that may take eighteen months or longer.
518 Dr Chris Grant, psychiatrist, examined the plaintiff in January 2009.
519 The plaintiff told Dr Grant he ceased work because he was stressed on a daily basis, agitated, furious, irritated, feeling anxious on the way to work because he felt ignored at work and they took no notice of what he said and he felt bullied and humiliated. The plaintiff attributed his difficulties to when Jane took over as the managing director from her father.
520 In hindsight, the plaintiff said his problems began when he had a heart attack. That is when the problems started; pressure at work, long hours, import meeting every Monday and he was given tasks that irritated him.
521 Having described his heart condition to Dr Grant, the plaintiff said otherwise his only health problem was soft tissue problems with his shoulder and back – “normal wear and tear I call them”.
522 After Jane became managing director, the plaintiff said he felt irritated and wanted to attack her. She would not reason or change her mind and she would attack his family. He described Chris as like a “spy machine”. The plaintiff became increasingly irritated and asked for extra time off work over Christmas. He thought his work was being criticised unfairly and he was angry he had no leave entitlements left.
523 The plaintiff told Dr Grant when two workers were retrenched two years ago, he was told he had to take up some cleaning duties, which offended his pride. He said on occasions when he had meetings with Chris he just wanted to “kill him” and he was scared he would lose it. His anger was compounded, because he had known Jane and Chris since they were infants and he regarded himself as having a family affiliation with the business.
524 Dr Grant noted in the weeks away from work, the plaintiff had been thinking less about the work situation. He was having some investigations of his shoulder and had been referred to a psychologist.
525 On the material available, Dr Grant would not diagnose the plaintiff as suffering a psychiatric disorder or mental disorder. He noted the plaintiff appeared to be angry and upset, rather than depressed or pathologically anxious. He thought the plaintiff’s emotional discord arose from the combination of the family matters and his sense the employer should treat him better, but Dr Grant did not discern any specific injuries from the work situation.
526 Dr Daniels, consultant psychiatrist, examined the plaintiff in March 2011.
527 The plaintiff told Dr Daniels that following his return to work after his heart attack, he believed the first defendant put pressure on him to leave work. Far from being put on reduced duties, his hours actually increased. He reported that due to staffing changes he was forced to do cleaning work including cleaning the toilets which he found demeaning. In 2005, the children of the previous manager took over running the business and treated the plaintiff poorly. In his view, there were ongoing pressures for him to cease work because of his health concerns.
528 The plaintiff reported having experienced the shoulder injury in April 2008 when doing repetitive lifting with his left arm. The plaintiff stated he was hanging heavy garments on a rack above his head when he injured his shoulder. He reported he kept working because the first defendant was short staffed. He had shoulder surgery in the public health system in 2010.
529 The plaintiff reported that over the past twelve months he had become increasingly angry in his mood. His concentration was poor, he had broken sleep and diminished interest. He was then being prescribed Pristiq by his general practitioner.
530 On mental state examination, perception was normal and there were no pervasive, depressive or anxious beliefs. Attention, memory and concentration were intact. Insight and judgment appeared impaired, as evidence by his description of recent anger management problems.
531 Dr Daniels noted the plaintiff described anxious and depressed mood, along with periods of anger that was manifested with behavioural disturbance attributing those to his treatment within the workplace.
532 Dr Daniels thought mental state examination did not reveal any significant abnormality and did not warrant psychiatric diagnosis.
533 Dr Daniels thought, from a psychiatric perspective, the plaintiff was fit for pre-injury duties, although given his ongoing description of intermittent chest pain and limited vocational experience outside of his most current employer, he considered it unlikely the plaintiff would be able to return to other alternative duties. He noted the plaintiff did not have a psychiatric condition and that his mild emotional symptoms were stable.
534 Dr Gary Davison, specialist occupational physician, examined the plaintiff on 26 April 2013.
535 The plaintiff told Dr Davison that he did all the work manually in the early years of employment. There was later a forklift. He was also involved in picking and packing of stock orders which required him to undertake use, especially of the right arm, above shoulder height to prevent longer garments dragging on the ground. He was on call for security and he worked very long hours.
536 The plaintiff advised he recalled he initially experienced left shoulder pain for about ten years. It was initially low grade and did not cause him to seek medical treatment. Then, on 8 April 2008, the plaintiff was accessing stock on an elevated shelf. He had to stand on a ladder and steady himself with his left hand by holding onto a rail while he grabbed the stock with his right.
537 In the course of doing so, the ladder went and the plaintiff was left hanging on with his left hand. Subsequently his left shoulder pain increased.
538 The plaintiff explained he did not report the injury because he was in the management team. It was not until late 2008 that he first sought medical treatment when he was attending his doctor in regard to health issues.
539 The plaintiff reported the presence of persistent mild pain in the left shoulder.
540 Dr Davison noted the plaintiff was a pleasant and cooperative individual who appeared to give a good account of himself. He exhibited some pain behaviours, as evidence by vocalisation and grimacing. On inspection of the left shoulder, there was no evidence of any muscle wasting around the left shoulder girdle. There was non specific myofascial tenderness, mainly within the left trapezius but there was also tenderness to relatively light touch over the left shoulder joint generally. There were no signs of disuse atrophy in the non-dominant left limb.
541 Grip strength on the left was reduced, which Dr Davison noted was inconsistent with the lack of muscle wasting. There was some restriction of left shoulder movement and it was noted resisted rotator cuff movements did not appear to cause any significant discomfort and the scarf sign was equivocally positive on the left.
542 Noting Mr Li’s diagnosis, Dr Davison considered the plaintiff did not have a capacity for pre-injury duties. He did, however, have a capacity for suitable duties purely in relation to the left shoulder condition.
543 Dr Davison imposed the following restrictions; namely, avoiding forceful and/or repetitive pushing or pulling with the left arm away from the body; avoiding use of the left arm above chest height; avoiding manual handling greater than 7.5 kilograms in force or weight using both hands below mid chest height; self paced duties and graduated hours of work.
544 Dr Davison thought the plaintiff’s condition was considered to be stable. In terms of prognosis, he noted the symptoms had persisted and the plaintiff continued to demonstrate restricted movement in the left shoulder. He noted clinically, however, there was no evidence of muscle wasting in the non-dominant left upper limb, which suggested a relatively normal usage pattern.
545 Dr Davison thought the plaintiff may have developed a Chronic Regional Pain Syndrome subsequent to the original injury. He also noted that it was possible the plaintiff was not giving a good account of himself but he was unable to determine what was the case.
546 Mr Jonathon Hooper, orthopaedic surgeon, examined the plaintiff in May 2013.
547 The plaintiff told Mr Hooper his job involved working as a distribution manager for many years and much of the work involved lifting garments above shoulder level causing his shoulder to ache.
548 The plaintiff said about four years ago he was involved in an accident where he was standing on a small ladder, he slipped and in order to save himself he jerked his left arm, aggravating his shoulder condition. The plaintiff reported he had surgery but that did not help. He reported, at the time of examination, that his shoulder caused pain. He had difficulty sleeping on it but it moved moderately well.
549 On examination, the plaintiff had a good range of motion of the left shoulder with flexion and adduction but restriction of rotation, with pain on extremes.
550 The plaintiff told Mr Hooper he had not returned to work because he was depressed and saw a psychologist and had a heart condition. The plaintiff reported he had never been the same since he had his coronary occlusion fifteen years ago, having gained a lot of weight.
551 Mr Hooper thought the plaintiff had cuff pathology in the left shoulder which the plaintiff complained had been bothering him for many years. Mr Hooper thought that was temporarily aggravated by an incident at work. He noted surgery failed to help the plaintiff’s symptoms and his shoulder was still mildly symptomatic, but functionally he had a good range of movement without too much discomfort.
552 Mr Hooper thought the plaintiff’s condition would not improve and it could be argued that the incident temporarily aggravated tendinopathy in the left shoulder.
553 Mr Hooper confirmed the plaintiff injured his shoulder in the incident and that had temporarily aggravated the shoulder that had been symptomatic for many years. Mr Hooper noted the plaintiff’s shoulder was not helped by surgery and his condition was stable and unlikely to improve and unlikely to deteriorate.
554 Mr Hooper thought the plaintiff would be capable of returning to light work but he would be incapable of using his arm above shoulder level for repetitive activities. He thought the plaintiff had a work capacity and his prognosis was fair.
The Plaintiff’s treaters
555 There were medical certificates relating to the plaintiff’s coronary disease throughout 1997 and in June 2000.
556 On 28 May 2008, Dr Memon from the Point Cook Medical Centre certified the plaintiff was receiving medical treatment and for the period 29 to 30 May 2008 he was unfit for his normal work.
557 Dr Brennan wrote to Dr Wade in November 2008, having seen the plaintiff that day. He noted in recent months there had been an increase in the frequency of episodes of nocturnal angina.
558 Dr Brennan also reported that the plaintiff had huge financial problems, partly related to problems with his children. The plaintiff was under a lot of stress, both at home and at work, and was contemplating abandoning work. Dr Brennan noted, given the plaintiff’s cardiac problems, he could probably qualify for an invalid pension, given his coronary anatomy was unattractive for revascularisation.
559 Dr Brennan provided a certificate dated 1 December 2008 setting out the plaintiff was unfit for work from that date until 1 February 2009 on the basis of ischaemic heart disease.
560 Following examination on 9 December 2008, Dr Malekzadeh certified the plaintiff unfit from 2 December 2008 to 16 December on the basis of work related stress.
561 Dr Malekzadeh, following examination on 16 December 2008, certified the plaintiff unfit until 6 January 2009 for work-related stress, left shoulder and right elbow pain, anxiety/adjustment problem, right tennis elbow and left shoulder pain.
562 Following an examination on 5 January 2009, Dr Malekzadeh certified the plaintiff totally unfit for work from 6 January 2009 until 3 February 2009 for the same injuries as described on the 16 December 2008 certificate.
563 Kathryn Winch, psychologist, reported on 23 March 2009 that the plaintiff stated he had had a good week and he had come to the decision it would be best for him not to return to work. She explored that choice with him and also explored his fears about making a decision.
564 The plaintiff stated he was concerned he may die as a result of retiring because he had seen it happen to others. He identified his core values and stated one of his goals was to travel around the Australian coast by car. It was agreed that further goals that were in line with values would be developed in the next session, and it was also agreed a plan would be developed regarding his retirement.
Compensation documents
565 The plaintiff signed a Worker’s Injury Claim Form on 10 December 2008, setting out his injury or condition was heart, anxiety state, left shoulder, right arm.
566 The plaintiff described being injured as a result of stresses and strains of work during the course of the employment to 1 December 2008. Injury was first noted in April 2008 and he then reported it to Chris Batrouney. The plaintiff noted Darren Pauthenet and Ron Farrugia were witnesses. The plaintiff had not previously had not had a similar problem.
567 The Employer Injury Claim Report, signed 23 December 2008, set out the plaintiff started working on 25 July 1973. His tasks as a warehouse manager were controlling activities of the warehouse and warehouse staff including some light manual tasks.
568 It was noted that the plaintiff had “heart and stress, not work related – arm – restricted duties re heart condition but, injury not reported and believed not witnessed”.
569 The plaintiff lodged a claim for impairment benefits dated 11 January 2010 claiming a heart condition, stress and left shoulder, which occurred due to stresses and strains of work.
Legal proceedings
570 An attachment of earnings order was made against the plaintiff at Melbourne Magistrates’ Court on 29 October 2008 in relation to a debt of $10,200.
571 The plaintiff’s solicitors, Vincent Verduci, wrote to Lion Finance in relation to a debt of nearly $9,000 to a Virgin credit card and $12,500 to Amex.
572 The solicitors advised that, unfortunately, the plaintiff was not able to make any payments at the present time, noting he was currently off work due to a heart condition, did not have any assets and was renting premises.
573 The solicitors advised the plaintiff’s current debts totalled $57,302.
Is the impairment serious?
574 The plaintiff’s condition has been diagnosed as rotator cuff tendonosis/tendinopathy and a tear of the supraspinatus which ultimately required surgery, and thereafter resulted in the development of capsulitis.
575 Save for Mr Haig, who considered the plaintiff’s shoulder condition was constitutional in origin, all medical practitioners considered it was related to the plaintiff’s work. Mr Hooper was alone in his view that there was only a temporary aggravation of the plaintiff’s left shoulder condition as a result of work duties.
576 It was not argued that the plaintiff’s condition was not organically based. This approach was understandable, given the preponderance of medical opinion to the contrary, save for Dr Davison, who thought the plaintiff may have developed a chronic regional pain syndrome.
Credit
577 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[158]
“The weight to be attached to the plaintiff’s account of the pain will of course depend upon an assessment of the plaintiff’s credit.
[158](2010) 31 VR 1 at paragraph 12
578 As previously stated, I found the plaintiff to be a truthful witness.
579 Whilst there was some indecision and contrary answers by the plaintiff about circumstances of leaving work, I considered he generally gave his evidence in a straightforward manner.
580 There were hours of surveillance of the plaintiff’s activities and no film was relied upon by the defendants. Further, no medical examiner found embellishment or deliberate exaggeration of symptoms by the plaintiff on examination.
581 There were many matters in the plaintiff’s affidavit material that simply were not challenged, including matters relating to capacity and consequences.
582 The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain.[159]
[159](supra) at paragraph 11
583 The plaintiff described significant ongoing daily left shoulder pain. He often experienced flare ups if he over exerted himself. The plaintiff’s evidence in this regard was not really challenged.
584 The plaintiff underwent surgery in September 2009. His treating surgeon, Mr Li, having diagnosed capsulitis following the surgery, believes further surgery is necessary as he has described. The plaintiff, however, cannot afford to undergo this procedure.
585 The plaintiff has undergone physiotherapy and hydrotherapy treatment at various times and he performs stretching exercises at home.
586 The plaintiff presently takes Tramal once, sometimes twice a week, and he takes Panadol daily.
587 As a result of his shoulder injury, the plaintiff is restricted in the movement of his left arm and shoulder, particularly in relation to overhead activities, and he has difficulty lifting weights and putting his left arm out in front of him.
588 The plaintiff’s level of restriction was not challenged and was found by all doctors on examination.
589 Whilst the plaintiff is right handed, he requires free and full use of his left arm for a range of work and domestic activities.
590 The plaintiff’s injury also affects his sleep quality. Whilst he continues to have bad dreams about his work experience, the plaintiff wakes in pain regularly throughout the night and tries to sleep on his right side to protect his shoulder.
591 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[160]
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
[160](supra) at paragraph 45
592 The plaintiff’s shoulder injury has had a significant affect on his sex life and marital relationship. It has also affected his ability to enjoy his grandchildren and play freely with them. His previously active social life has also been affected, with a reduced ability to get pleasure from and participate in activities he enjoyed before injury.
593 These problems were corroborated by the plaintiff’s wife’s affidavit, which was not challenged.
594 There has not been a significant effect on other activities previously enjoyed by the plaintiff. His fishing has been somewhat limited by his injury but he did not really explain to what extent. He can still engage in his hobby of making model cars and he does some limited work in the vegetable garden. He enjoys using the internet and he is able, at home, to do 60 per cent of the cooking.[161]
[161]T155
595 The plaintiff still enjoys driving holidays, having driven around Tasmania a few years ago, and to Mildura last Christmas.
596 A major consequence to the plaintiff is his inability to return to pre-injury duties or any work involving overhead or repetitive use of his left arm.
597 The consensus of medical opinion is that the plaintiff does not have the capacity to do his pre-injury duties involving picking and packing or heavy work involving the use of his left arm.[162]
[162]T168
598 The plaintiff’s left shoulder movement is limited. He is unable to lift other than small weights with his left hand and he is unable to engage in repetitive work involving his left arm.
599 I am satisfied the interference with the plaintiff’s employment capacity, combined with his pain, restriction of movement, sleeping and sexual difficulties and the affect on his family and social life are consequences which are “more than significant or marked or at least very considerable”.
600 I reject the submission by counsel that the left shoulder injury alone had at most a minor impact on the plaintiff’s life.
601 As the plaintiff’s shoulder condition has persisted for in excess of five years without significant improvement, despite surgery, I am satisfied that the impairment in relation thereto is permanent.
602 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
603 Having satisfied the narrative test in relation to serious injury, I am required to consider the statutory framework in terms of loss of earning capacity.
Loss of Earning Capacity
604 To obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
605 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
606 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
607 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
608 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
609 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
610 I am therefore required to determine a “without injury” earnings figure. See Barwon Spinners Pty Ltd & Ors v Podolak.[163]
[163](supra) at paragraph 70
611 The plaintiff’s claim was put on the basis of a total loss of income. There was no dispute that $50,000 was the approximate without injury earnings figure.
612 Counsel for the plaintiff conceded the plaintiff stopped work in November 2008 for a combination of factors. It was clear the plaintiff was being stressed because of his treatment at work and he also had pain in his left shoulder about which he complained to Dr Malekzadeh.[164]
[164]T171
613 However, it appears from various histories given by the plaintiff to doctors that the main reason for ceasing work was his heart condition.
614 The plaintiff agreed that since 2001, Dr Brennan had been suggesting to him that he should retire because of his heart problems, a view he still held in April 2009 after the plaintiff had ceased work with the first defendant.
615 The first WorkCover certificate issued by Dr Malekzadeh following an examination on 9 December 2008 was for work-related stress with no mention of his shoulder, although later certificates included his shoulder condition.
616 In March 2009, the plaintiff told Mr Haig he was not currently working, having discontinued in the first week of December at his cardiologist’s suggestion.
617 The plaintiff told Mr Dooley on examination in December 2009 that he was finally forced to cease work in December 2008 because of aggravation of stress. He noted the plaintiff had retired partly because of his chronic heart condition and also because of the condition of his left shoulder.
618 Mr Hooper’s history in May 2013 was that the plaintiff had not returned to work because he said he was depressed and he saw a psychologist. The plaintiff advised he also had a heart condition and he had never been the same since its onset.
619 The plaintiff resigned from the first defendant’s employ in December 2009 as a result of his heart condition, as he ultimately conceded.[165]
[165]T93
620 Although the plaintiff told Mr Dooley, that he intended to resign from the workforce at that time, and he discussed retirement plans with Ms Winch in March 2009 and, to a limited extent with Dr Malekzadeh in late 2008, I accept that he had not given up hope of further work at that time with an employer other than the first defendant.[166]
[166]T173
621 The plaintiff had spoken to Centrelink about working somewhere else and was told it would be extremely difficult for him to get a job. I accept if he had been able to find other work, the plaintiff would have continued working.
622 The issue for determination is the plaintiff’s present capacity for employment.
623 At the time he ceased work, the plaintiff considered he could still work with the first defendant with his shoulder condition, but his duties would be restricted to those not involving use of his left arm.
624 I accept that at various times during 2009, leading up to the surgery in September, and for some months thereafter, both Dr Malekzadeh and Mr Li thought the plaintiff was unfit for work because of his shoulder injury.[167]
[167]T171
625 However, I must consider the plaintiff’s capacity for employment as at the date of the hearing.
626 I accept the consensus of medical opinion that the plaintiff has a capacity for administrative type work or work not requiring excessive use of his left arm.
627 Mr Haig, who thought the plaintiff was fit for normal duties, examined the plaintiff in early 2009, pre surgery and he stands alone in this view.
628 Dr Sutcliffe, occupational physician, is the only practitioner of the view the plaintiff does not have a capacity for suitable employment as a result of his shoulder injury alone.
629 Significantly, the plaintiff’s treating surgeon, who has recently suggested further surgery, considered the plaintiff had a capacity for administrative work. Mr Li had not told the plaintiff not to go back to work because of shoulder.
630 A number of other practitioners shared this view.
631 Having examined the plaintiff in December 2009 and concluding the plaintiff had a theoretical capacity for part-time light work not involving excessive use of his left arm, in a supplementary report of January 2010 Mr Dooley stated the plaintiff, certainly within the next 12 to 18 months, would be fit for a wide range of light work not repetitive in nature or above shoulder height.
632 Dr Malekzadeh thought the shoulder condition alone could have caused partial inability to do the plaintiff’s his job as the manager of distribution and that the plaintiff would have been able to do the non-physical aspects of his job. If he just had the shoulder injury, he considered the plaintiff would possibly be able to do part time sedentary work not involving his left arm.
633 Dr Davison thought the plaintiff had a capacity for suitable duties merely in relation to the left shoulder condition with some restriction which, it was submitted, fitted into the administrative-type work the first defendant said the plaintiff was certainly doing towards the end of his employment with the defendant.
634 Mr Hooper thought the plaintiff would be capable of returning to light work but he would be incapable of using his arm above shoulder level for repetitive work.
635 Dr Stockman thought the plaintiff’s left shoulder alone did not result in total capacity for employment, given his age, education and need for retraining. He thought the plaintiff had some residual capacity for employment and could perform part-time sedentary duties between 25 and 30 hours a week with a 5‑kilogram lifting limit in relation to his left arm.
636 Mr Miller thought the plaintiff would have difficulty with repetitive heavy work involving his left arm and that, given the plaintiff’s age, education and work experience, a return to work would be problematic due to his injury
637 The plaintiff has in fact had experience beyond his work with the first defendant in a clerical role working for the truck company, IPEC, part-time.[168]
[168]
638 Having done administrative work with the first defendant for many years managing the warehouse, supervising other workers and doing ordering and despatch, as well as clerical work at IPEC, the plaintiff has the capacity to engage in further work of this nature in duties that would not require excessive use of his non-dominant left arm.
639 In these circumstances, and taking into account the preponderance of medical evidence, I am not satisfied that at the plaintiff has established he has suffered the requisite loss of 40 per cent (an inability to earn in excess of $30,000 per annum) on a permanent basis.
640 Accordingly, I dismiss the application in relation to loss of earning capacity and grant the plaintiff leave to bring proceedings for damages for pain and suffering.
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