Georgakakis v Mutual Cleaning and Maintenance
[2018] VCC 786
•4 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-05973
| CHRISANTHY GEORGAKAKIS | Plaintiff |
| v | |
| MUTUAL CLEANING & MAINTENANCE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May – 1 June 2018 | |
DATE OF JUDGMENT: | 4 June 2018 | |
CASE MAY BE CITED AS: | Georgakakis v Mutual Cleaning & Maintenance | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 786 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Richter v Driscoll [2016] VSCA 142.
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram of Counsel with Mr Valiotis of Counsel | Shine Lawyers |
| For the Defendant | Mr J Plunkett of Counsel | Minter Ellison |
HIS HONOUR:
1 The plaintiff seeks leave to commence a proceeding with respect to the pain and suffering and economic loss consequences of an injury sustained by the plaintiff in the course of her employment with the defendant as a cleaner.
2 The relevant period of employment is February 2010 to November 2014.
3 During that period the plaintiff was employed by the defendant as a cleaner at the premises of RMIT where she would present each day in the early hours of the morning in order to clean the premises for the upcoming day.
4 In the application the parties rely upon affidavit evidence submitted by the plaintiff and medical and like evidence including medical records and employment documents tendered by the parties. In addition the plaintiff gave viva voce evidence and was cross-examined.
5 The evidence in the proceeding is a matter of record. No purpose is served in the course of these reasons by slavishly restating the evidence and I do not intend to do so unless it is necessary to explain and give context to my reasons.
6 In the application the plaintiff relies on a number of impairments of function of various body parts namely:
(i) impairment of function of the right upper limb;
(ii) impairment of function of the spine;
(iii) impairment function of the left and right hip.
7 It is put on behalf of the defendant that:
(i) the plaintiff presented with pre-existing disability in her hips and spine which requires her to demonstrate the additional effect which any impairment arising by reason of her employment has had upon those symptoms associated with the pre-existing condition;
(ii) it takes issue with the fact that some of the alleged injuries sustained by the plaintiff in the course of her employment with the defendant are compensable in that the injury and impairment associated with that injury did not arise by reason of the plaintiff’s employment with the defendant. That issue is largely confined to the impairment of function of the plaintiff’s hips;
(iii) the plaintiff has not established that the discrete consequences of any of the alleged impairments of body function with which she presents is such that it meets the statutory threshold relevant to her entitlement to commence a proceeding claiming either pain and suffering or pecuniary economic loss damages when the effect of each of those impairments is considered in accordance with the provisions of the Act which requires the plaintiff to establish the discrete effect of each impairment when considered in isolation of any other impairment.
8 The process which I intend to employee in analysing the entitlement to the plaintiff to the leave sought in this instance were set out in the course of my discussion with the parties at various times in the trial and is recorded in the transcript. I will adopt the that process in setting out the reasons for my finding which I, in large part, explained to the parties at the conclusion of the evidence and having heard the totality of the submissions on behalf of the defendant and the bulk of those made half of the plaintiff.
The consequences to the plaintiff of injury and impairment of function of the right upper limb.
9 No issue arises as to the compensability of the injury to the plaintiff’s right wrist.
10 Neither is it an issue that prior to developing the compensable injury in her right wrist the plaintiff presented with any pre-existing symptoms or condition in that wrist.
11 The injury has been managed by Miss Sue Thistlethwaite whose reports can be found pages 53 and 54 of the Plaintiff’s Court Book.
12 Given the long history of the management of that condition by Miss Thistlethwaite and her ability to observe and treat the condition on numerous occasions over the years in which the plaintiff presented to her for treatment, I am satisfied that MissThistlethwaite is best placed to speak with authority as to the effect of that condition upon the plaintiff’s capacity for work. Indeed the position to the contrary is not really agitated on behalf of the defendant.
13 Miss Thistlethwaite initially saw the plaintiff in December 2012 when she presented with a ganglion involving the dorsal aspect of the left wrist which was treated by surgery undertaken by Miss Thistlethwaite on 3 April 2013.
14 The plaintiff’s recovery from that surgery was non-eventful.
15 It is clear however that upon the plaintiff’s return to work with the defendant she developed swelling consistent with tenosynovitis which was treated by Miss Thistlethwaite by steroid injections and anti-inflammatory medication.
16 In her report dated 24 June 2017 Miss Thistlethwaite comments that:
over the next few years the pattern repeated with good relief after steroid injection until she resumed cleaning tasks at work again when she would get progressive worsening of the symptoms until she required another injection whenever she resumed any repetitive work she therefore has problems with pain combined with recurrent swelling.,
By October 2014 this was so obvious that we advise the company that she really could no longer do any cleaning tasks and should only be working on a supervisory capacity with minimal use of her hands and this to improve the situation for her but whenever she attempted to use the hand she did get recurrent tenderness and soreness are required another steroid injection
in June 2016 she was dismissed from work and I have not seen since that time I feel a injury was entirely related to her work as a cleaner and this was repeatedly shown as every time she resumed her cleaning duties she got significant recurrence of tenosynovitis associated in her right hand. I think she will never be able to return to cleaning and she would only be able to do some sort of administrative tasks with minimal use for right hand.
17 It was the plaintiff’s evidence that following her surgery she had been provided with certificates by her general practitioner which were given to the defendant and which required her duties to be limited to light forms of work.
18 The plaintiff said that notwithstanding that fact, a regular pattern manifested itself in her workplace in which, in the early hours of the morning she would regularly be confronted with staff shortages which required her to fill in for missing cleaners and accordingly to undertake normal duties.
19 Although the plaintiff was challenged as to her position, she made repeated comments that in her experience there are no light duties in the cleaning industry.
20 In mounting its challenges to the above position, the defendant called no evidence to contradict the plaintiff’s evidence.
21 I found the plaintiff to be not only truthful but most probably a reliable witness.
22 I am further satisfied that it is probable that the circumstances about which the plaintiff gave evidence, namely her repeated requirement to fill for absent workers, is reliable because it is consistent with:
(i) the contemporaneous history provided by the plaintiff:
· to Miss Thistlethwaite;
· To her general practitioner ;[1]
[1]See the comment by the plaintiff's general practitioner that PCB 55 where he refers specifically to the plaintiff being required to undertake cleaning duties.
· to Dr Stockman a rheumatologist to whom the plaintiff presented at the referral of a general practitioner on 26 November 2014 and who opined that the plaintiff’s symptoms being sponsored by “the job she was doing;”[2] and
(ii) the plaintiff’s ongoing need for treatment as the result of the symptoms generated by the work she was undertaking.
[2]PCB 69.
23 Further, the plaintiff’s evidence accords with the defendant’s own evidence namely that of Karmel Bartolich, the defendant’s return to work coordinator, who on 16 August 2013 acknowledged the fact that the plaintiff was undertaking mopping duties which were in contrast to her return to work plan.
24 Alternatively, even if I were to accept the challenge made by the defendant as to the plaintiff’s evidence, given the evidence of Miss Thistlethwaite as to the plaintiff’s attendance to her regularly over the years in which she was employed by the defendant after her surgery with symptoms which required the management, if it was the case that the defendant was providing the plaintiff with only light forms of work in accordance with the certificates provided by her general practitioner, it is clear that the plaintiff’s capacity for physical work involved a capacity which was even more reduced than that described by the certificates.
25 Given the plaintiff’s continued attendance upon Miss Thistlethwaite in the context of her continued employment with the defendant, I am satisfied that the plaintiff demonstrated both stoicism and determination in continuing her employment notwithstanding the ongoing nature of the symptoms and that she was most probably working during this period beyond her true capacity.
26 It is clear that that position was recognised by Miss Thistlethwaite in the comments made by her in a second report.
27 At the time that she gave up working as a cleaner, the plaintiff had been employed as a cleaner by various sequential employers at RMIT for in excess of 14 years commencing that employment in 2001.
28 As I have said, in the course of evidence the plaintiff made repeated statements that in her opinion there was no such thing as light work in the duties required of a cleaner.
29 Given her long history of employment as a cleaner I am satisfied that the plaintiff is well positioned to make an authoritative statement on that issue.
30 In her first affidavit the plaintiff described commencing employment with the cleaning company, Demos, which took over the cleaning contract from the defendant.
31 Whilst the plaintiff described that change as occurring in May 2015 there is no issue that she ceased employment with the defendant in approximately 2014.
32 In her affidavit the plaintiff described Demos as offering her the opportunity work in a purely supervisory role in which she undertook until sometime in late 2015 when another company took over the cleaning contract from Demos.
33 At that time the plaintiff was told that her duties would involve aspects of general cleaning duties, the result being that she was forced to give up her work.
34 In the course of cross examination the plaintiff gave the following evidence as to the reason for her ceasing to work for the cleaning company which took over the cleaning contract that RMI T after Demos:
“So if they have given you a job as supervisor you would have kept going ?
I do not know
you apply for the job presumably you intended on taking it if you are offered it
yes I try
Because you have been doing it for five months before hadn’t you
Yes
And so if they said we do have a supervisory role you can continue in the same role as you would doing at Demos you would have kept doing that
Yes”[3]
[3] T18 L8-13.
35 It is put on behalf of the defendant that:
(i) the concession made by the plaintiff should be regarded as an unconditional statement as to her capacity to perform merely supervisory work;
(ii) the supervisory work made available to the plaintiff in her employment with Demos was an example of a real job within the industry which the plaintiff has a capacity to undertake, and not protective employment.
36 As to the first position it is clear that the plaintiff expressed considerable reluctance in accepting the position put to her as to her ability to “keep going” had she been offered equivalent work to that she had undertaken in her employment with Demos.
37 Whilst it is true that the plaintiff answered “Yes” to the last question in the series of questions to which I have referred above, I do not regard that statement by her to be anyway definitive upon the issue when considered in the context of the totality of the passage to which I have quoted and the fact that the plaintiff was giving evidence in a second language.
38 I am satisfied that the plaintiff’s reluctance in accepting the position is borne out by the totality of her responses and most probably arises by reason of the regular attendance by the plaintiff upon her general practitioner with wrist pain during the period in which she was employed by Demos in undertaking supervisory duties.
39 It is the defendant’s position that the plaintiff’s capacity to perform that work is definitively demonstrated by the fact that the plaintiff continued to perform that work.
40 The medical records show that whilst employed by Demos the plaintiff attended her general practitioner on:
(i) 16 February 2015;
(ii) 2 April 2015;
(iii) 5 May 2015;
(iv) 26 June 2015; and
(v) 26 November 2015
with symptoms of wrist pain.
41 Although it is put on behalf of the defendant of those attendances do not attest to an incapacity to undertake purely supervisory work without any physical involvement, in my opinion it provides a strong indication of an incapacity to do so.
42 Whilst it was asserted by the defendant that capacity for work should be determined definitively if a worker is able to cope with work activity regardless of the symptoms generated by that activity, in my opinion to adopt such an approach confuses stoicism and pigheaded determination and with capacity.
43 As to the second position, namely whether the work offered to the plaintiff by Demos is persuasive evidence that work of that type is available within the cleaning industry, that position is challenged on behalf of the plaintiff; it is put on behalf of the plaintiff that given:
· the plaintiff’s evidence that during the 14 years of her employment in cleaning the premises at RMIT (during which she was engaged sequentially by a number of contractors) which work with the exception of that of Demos, involved a consistent pattern of having to undertake general cleaning work;
· the plaintiff’s employment with the defendant; even in so-called protected employment she was regularly called upon to undertake cleaning duties notwithstanding being certified for light duties.
there is no persuasive evidence to support the position that purely supervisory work is available within the cleaning industry to a person of the plaintiff’s age with her work history, limited education and limited literacy.
44 In my opinion, it cannot be said that one period of employment over a relatively short period of time with one contractor in which the plaintiff was able to obtain a purely supervisory position should be regarded as constituting persuasive evidence that the position made available to her by Demos is one generally available in the open marketplace.
45 In making that statement I accept the position put on behalf of the plaintiff that it is open to infer that the work offered to the plaintiff by Demos was not representative of the conditions within the open marketplace in that while it may well have been made available to the plaintiff given the peculiar circumstances of the situation in which Demos was:
· a new contractor at the RMIT premises;
· likely to be assisted in its management of the contract required by the wealth of experience possessed by the plaintiff in working at the RMIT premises and the obvious benefit to it as a new contractor in in employing a supervisor who was familiar only with the premises but with the cleaners employed at the premises.
46 That position is in turn supported by the fact that upon Demos losing the contract no similar or identical position was offered to the plaintiff by the new contractor.
47 I am not satisfied taking into account:
· the plaintiff’s experience in the cleaning industry over the last 15 years and the repeated statements made by her that supervisory work which does not involve cleaning is not available;
· the consistent pattern of the contractors with which the plaintiff has been employed at the RMIT premises upon which the plaintiff based her evidence with the exception of Demos, which pattern continued after Demos left the site, which supports the plaintiff’s position;
that there is probative evidence in support of the position that the supervisory duties offered to the plaintiff by Demos are representative of the true position within the open marketplace.
48 Given the combination of:
(i) the plaintiff’s current age;
(ii) the plaintiff’s limited reading skills in English and her education to only a primary school level in Greece;
(iii) the plaintiff’s history of work which is largely limited to that of a physical unskilled nature:
(iv) The long period of time which has elapsed since the plaintiff was involved in largely supervisory type work at the Arts Centre and her history thereafter of employment consisting of cleaning which she has pursued within the same premises namely the RMIT campus for the 14 years;
(v) the findings I have made above as to the absence of any persuasive evidence which satisfies me that work of a purely supervisory nature is currently available in the cleaning industry;
(vi) the fact that I consider it unlikely, given the matters referred to above, that even if purely supervisory work was available in the cleaning industry the plaintiff would be considered as a suitably qualified employee for such a position;[4]
I am satisfied that injury to the plaintiff’s right wrist operates so as to preclude her from any form of employment which constitutes a suitable employment for her and accordingly that the consequences to her that that injury are such as to entitle her to the leave sought by her in this instance.
[4]In reality I am satisfied that, with respect to the plaintiff’s capacity for employment in solely supervisory work within the cleaning industry at this stage in her life, when considered:
· in the context of her medical complaints made to her general practitioner when she was employed in that type of work by Demos;
· in the absence of the peculiar situation in which the plaintiff presented to Demos by reason of her specific experience in RMIT worksite;
the plaintiff would have nothing to sell a prospective employer. See the analysis by the Court of Appeal in Richter v Driscoll [2016] VSCA 142.
The injury to the plaintiff’s lumbar spine
49 Whilst there is medical evidence which takes issue with the relationship between the condition present in the plaintiff’s lumbar spine and her employment, I am satisfied, having considered the totality of the evidence, the plaintiff has established the compensable nature of that condition.
50 There is no issue that the plaintiff presented to her general practitioner on a number of occasions with symptoms of back pain prior to commencing employment with the defendant and that she suffered from pre-existing degenerative condition in her lumbar spine which developed well prior to the commencement of employment.
51 It is beyond contention however, that upon commencing her employment with the defendant the condition of the plaintiff’s lumbar spine was that it rendered her unfit to undertake the heavy cleaning work involved in that occupation and that any analysis of the consequences of the pre-existing condition with which the plaintiff presented in her lumbar spine should be considered in that context.
52 I am satisfied that the persuasive medical evidence as to the relationship between the plaintiff’s employment with the defendant and the condition in her lumbar spine is as follows:
(i) Mr Richard McArthur, an orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 28 June 2011.
(ii) At that time the plaintiff presented with a history of low back pain commencing in 2010 which Mr MacArthur diagnosed as being associated with an aggravation of long-standing degenerative disc disease in her lumbar spine commenting:
· that the plaintiff was restricted to modified duties which avoided heavy lifting and not wearing a vacuum pack;
· that the plaintiff’s symptoms should be managed by her general practitioner and treating orthopaedic surgeon who should advise her upon the issue of her capacity for work.
(iii) The plaintiff’s general practitioner has commented generally upon the condition in the plaintiff’s spine and although not differentiating between the thoracic spine and lumbar spine, opined that each of the injuries with which the plaintiff presented were most likely to be related to her work duties which involved bending, twisting, pushing and pulling heavy machine such as a buffing machine.
(iv) Mr Della Hart, an orthopaedic surgeon to whom the plaintiff was referred by her treating mental practitioner, opined that the plaintiff presented with severe widespread degenerative arthritis in her spine, the effect of which as at May 2017 permanently incapacitated her for any form of employment and limited her ability to sit beyond 30 minutes, bend, stoop, push, pull or lift.
(v) It is clear that Mr Della Harpe considered the plaintiff’s work as a cleaner to be responsible for the symptoms and disability with which she presented in her lumbar spine. Although he does not comment specifically upon the impact of the plaintiff’s employment with the defendant in making that contribution I am satisfied that:
· the plaintiff’s evidence as to the work she undertook with the defendant;
· the timing between the onset of symptoms in the plaintiff’s lumbar spine with which she presented to Mr MacArthur; and
· the absence of any history of the plaintiff undertaking significant manual work after the cessation of her employment with the defendant;
establishes the requisite causal relationship between the condition with which the plaintiff now presents in her lumbar spine and the defendant’s work process.
(vi) In his report dated 17 May 2018 Mr Della Harpe describes the plaintiff’s condition in her lumbar spine as escalating, describing her as remaining incapacitated and requiring management by way of OxyContin for pain relief.
(vii) The plaintiff has been assessed by Mr Thomas Kossman an orthopaedic surgeon who in his report of 6 April 2018 opines that there is a direct relationship between the plaintiff’s employment in the condition in her lumbar spine in respect of which he opined that her prognosis was guarded and she would require further management with pain medication anti-inflammatories and physiotherapy.
53 The defendant has commissioned two reports as to the condition which the plaintiff presents in her spine each of which I did not find to be persuasive for the following reasons:
· In a report which rambles inconsistantly upon the issue of causation Mr Michael Troy who examined the plaintiff on behalf of the defendant in 2016 takes no issue with the fact that the plaintiff presents with the condition which restricts her ability to sit to approximately 15 minutes; her ability to stand and walk; and requires her to employ Endone, Panadiene Forte and Tamadol slow-release in the management of the condition. He took no issue with the description by the plaintiff as to the severity of her symptoms and although he did not comment specifically upon the plaintiff’s capacity for work, is clear that those symptoms would incapacitate the plaintiff from any form of employment
· Mr Troy comments at page 4 of his report that employment no longer contributed to the plaintiff’s symptoms. Later in his report however makes the following comment:
her symptoms will remain as they are. They will gradually deteriorate as of the degenerative changes persist in the fact that she has compounded them by being overweight and being deconditioned – she states she does not walk like she used to.. her clinical presentation is consistent with the workplace incident.
· I have difficulty in understanding whether Mr Troy takes any issue as to the relationship between the incapacitating symptoms which the plaintiff now presents in her lumbar spine and the defendant’s work process, having regard to the inconsistency between his comments as to whether the plaintiff’s current clinical presentation is consistent with the workplace incident.
· In a report dated 16 February 2018, Mr Michael Dooley, a consulting orthopaedic surgeon accepts that aspects of the plaintiff’s work could have caused the underlying condition in her lumbar spine to have been exacerbated and comments that the condition in the plaintiff’s thoracolumbar spine whilst predominantly caused by her age-related degenerative disc disease was contributed to in the order of 20% to her work with the defendant. He opined moreover the plaintiff presents with a physical capacity for light work and clerical duties.
54 In the course of cross examination the plaintiff was not challenged in any way which caused me to question the reliability of the statements made by the plaintiff in her affidavit evidence as to the level of symptoms or incapacity associated with the condition with which she presents in her lumbar spine.
55 It was and remains the plaintiff’s evidence that her main problem with respect to pain and restriction of movement arises by reason of the condition and lumbar spine and that it is that condition which is primarily responsible for significant amounts of prescription medication which she takes about which there is no dispute.
56 When the evidence given by the plaintiff to which I have referred above is considered in the context of the evidence of:
· Mr Della Harpe:
· Mr MacArthur;
· Mr Kossman; and
· Dr Kyriacopolous
I find the consistency between those medical opinions and the plaintiff’s evidence to present a compelling case not only as to the relationship between the plaintiff’s employment in the severe exacerbation of her symptoms in her lumbar spine but also the incapacitating nature of those symptoms.
57 For this reason I prefer that body of evidence to any evidence to the contrary expressed by Mr Troy and Mr Dooley.
58 Given the most recent position expressed by Mr Della Harpe, I am satisfied that the employment related exacerbation of the degenerative condition in the plaintiff’s lumbar spine, when considered independently of any other comorbidity with which the plaintiff presents, operates so as to permanently preclude her from any form of employment which represents suitable employment for her taking into account her age, her education and her relevant work history.
59 I am further satisfied that the impairment of function of the plaintiff’s right upper limb arising by reason of her compensable injury, namely the recurring ganglion in her right wrist, when considered in the absence of the effect of any other in comorbidity with which the plaintiff presents, renders her unfit to engage in any suitable employment as defined by reason of the Act
60 For these reasons, I am satisfied that the plaintiff is entitled to the leave which is sought in this instance and that it is unnecessary to consider the consequences of the condition with which the plaintiff presents bilaterally in her hips or the compensability of those conditions.
61 I will hear the parties as to the precise form of the order which should be made of and upon the issue of costs.
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