Geytooum v Victorian WorkCover Authority
[2015] VCC 1768
•8 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05344
| HAGOS GEYTOOUM | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 December 2015 | |
DATE OF JUDGMENT: | 8 December 2015 | |
CASE MAY BE CITED AS: | Geytooum v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1768 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury application – injury to right shoulder – pain and suffering and loss of earning capacity; injury to the left shoulder – loss of earning capacity only, pain and suffering conceded in relation to the left shoulder
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment:Leave granted to the plaintiff to issue proceedings at common law with respect to injury suffered during the course of the plaintiff’s employment with the employer.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Forbes QC with Mr M Fogarty | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr A Middleton | Hall & Wilcox |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for injuries sustained by him in the course of his employment with Baiada Farms Pty Ltd (“the employer”).
2 In the proceeding, the defendant takes no issue with the fact that the plaintiff has suffered an injury to his left shoulder, the consequences of which are such that they meet the definition of “serious injury” insofar as that definition pertains to pain and suffering consequences arising by reason of the incapacity to the plaintiff’s left shoulder.
3 In the application, the plaintiff seeks:
· leave to commence a proceeding with respect to the economic loss consequences of impairment of functioning of his left shoulder, the relevant impairment of function being the left upper limb; and
· leave to commence a proceeding with respect to the pain and suffering consequences and economic loss consequences of impairment of functioning of his right shoulder the relevant impairment of function being the right upper limb.
4 In the proceeding, the plaintiff has filed two affidavits sworn by him on 16 June 2014 and 8 August 2015, respectively, and an affidavit from his sister sworn 3 September 2015. In addition, the plaintiff attended the hearing of the matter and gave viva voce evidence, and was cross-examined. Otherwise, the parties rely upon the medical and like material tendered by them.
5 The content of the plaintiff’s affidavits and his viva voce evidence are a matter of record, and I do not intend to refer with specific reference to that evidence, unless it is necessary to do so to give clarity or context to my findings.
6 I am satisfied that:
· the plaintiff presented as a truthful witness;
· the plaintiff’s language skills, as demonstrated by the way in which he gave his evidence, indicated that he had a reasonable understanding of the English language, but a difficulty grasping sophisticated meanings and expressing himself in English, and that his ability to read English would be appropriately described as being modest at the best; and
· that no issues arose as to the plaintiff’s credit, he presented as a largely truthful and reliable witness and I am satisfied that no aspect of his cross-examination in any way called into question the reliability of his affidavits.
7 By reason of the fact that a concession was made as to the pain and suffering consequences associated with the plaintiff’s left shoulder condition, much of the evidence contained in the plaintiff’s affidavits becomes irrelevant and, accordingly, was not the subject of cross-examination.
8 It is appropriate however that I specifically refer to the plaintiff’s evidence in his affidavit that he had difficulty driving and that he experienced sharp pain in his shoulders when turning the steering wheel, which evidence he reiterated in the course of his viva voce evidence and was not the subject of any challenge.
9 I am satisfied, for the reasons which I will set out below, that the conditions present in each of the plaintiff’s upper limbs the subject of this application, when considered independently of each other, give rise to the plaintiff’s incapacity ti drive.
10 In closing submissions, it was put on behalf of the defendant that the plaintiff had not discharged his onus that he had pursued appropriate rehabilitation for the purpose of gaining the skills which might be available to him to engage in suitable employment.
11 Essentially, in putting that position, counsel on behalf of the defendant pointed to the various statements by the author of a Vocational Assessment Analysis,[1] who identified various driving activities as involving suitable employment for the plaintiff, on the mistaken belief that the plaintiff was the holder of a driver’s licence.
[1]Defendant’s Court Book (“DCB”) 63-96
12 Given the unchallenged evidence as to the difficulty which the plaintiff has in manoeuvring a steering wheel, I am satisfied that there is no merit in the position put on behalf of the defendant that the plaintiff might rehabilitate himself by obtaining a driver’s license.
13 Further, given the fact that the plaintiff presents:
· as largely illiterate in written English, with an imperfect understanding of the spoken word and an inability to process sophisticated conversation;
· with an employment history which involved only the undertaking of unskilled physical work
I am satisfied that the plaintiff’s capacity for suitable employment has no prospect of being advanced by any rehabilitation which might be available to him, and that any capacity which the plaintiff possesses for suitable alternative employment at the present time, would not be advanced by the plaintiff undertaking rehabilitation.
14 Finally as to this issue, given that the plaintiff has been assessed by two occupational physicians in this instance, namely, Dr Helen Sutcliffe, retained by the plaintiff’s solicitors to opine as to the plaintiff’s capacity for employment, and Dr Gary Davison, retained on behalf of the defendant’s solicitors to opine as to the plaintiff’s capacity for employment, and that neither of these experts opine that rehabilitation involved some prospect of advancing the plaintiff’s range of suitable employment, or capacity for employment, this evidence further reinforces my finding as to this issue.
15 In closing submissions, the defendant drew my attention to a number of medical opinions which opine that the plaintiff presented in a manner which was, at times, inconsistent, or with a level of incapacity, the severity of which appeared to be surprising, insofar as the condition in his left shoulder was involved.
16 I am satisfied that the explanation for those presentations lies in the fact that the plaintiff has been emotionally affected by the chronic nature of the condition with which he presents and the limitations which that condition has placed upon his life.
17 No clearer illustration of this point could be given than that associated with the plaintiff’s presentation to Mr Chehata, the plaintiff’s treating orthopaedic surgeon, on 12 May 2014, at which time Mr Chehata described the plaintiff as presenting in a distraught and terrible state, with bilateral shoulder pain on the left worse than the right which, at first instance, Mr Chehata described himself as being at a loss to explain.
18 Indeed, the plaintiff presented in a similar fashion to Associate Professor Love.
19 In February 2015, Mr Chehata describes the plaintiff as presenting to him in an incredibly distressed and teary state, secondary to the severe financial difficulty which he was facing.
20 In his most recent report, Mr Chehata described the plaintiff’s probable presentation with adhesive capsulitis as falling into the category accepted by the literature, of a condition which could be permanent and associated with unabated pain.
21 I accept that by reason of his research of the literature, as to the outcomes for patients presenting with adhesive capsulitis that Mr Chehata is in a position to speak authoritatively on this topic.
22 The persuasiveness of the opinion by Mr Chehata as to the severity and permanence of the disability associated with that condition is in turn buttressed by the concession made by the defendant as to the pain and suffering consequences associated with the plaintiff’s left shoulder condition.
23 For these reasons, I accept Mr Chehata’s opinion in this regard and prefer it to any opinion to the contrary.
24 I do not find it surprising, in dealing with a person such as the plaintiff who has been emotionally affected by the chronic nature of his condition, that some medical practitioners with less understanding of:
· the condition with which the plaintiff presents; and
· the literature referred to by Mr Chehata;
may have questioned the nature of the plaintiff’s underlying organic condition and whether he presented with organic symptoms, having regard to the obvious emotional distress he feels, which I am satisfied is secondary to his physical incapacity.
25 I am satisfied, however, for the reasons which I will set out below, that the plaintiff presents with significant organic disability in both his shoulders and that the mechanism relevant to that organic disability has been persuasively identified.
26 My assessment of the plaintiff as he gave evidence, was that he was a witness who was doing his best to describe the effect of his injury upon him.
27 At no time during the course of his evidence did the plaintiff move his arms freely, rather, his movements were, to my observation, careful and restricted.
28 It is beyond challenged that the plaintiff had an extremely impressive work history in an occupation which involved heavy, repetitive and unpleasant physical labour as he processed poultry in the course of his employment with the employer.
29 Neither is it in issue that the plaintiff:
· Continued in that employment for nearly a decade.
· Returned to modified but nevertheless significant duties, which he undertook with his right hand by reason of incapacity of his left hand, the result being that he developed his right shoulder condition.
· Notwithstanding the condition in both of his shoulders, the plaintiff returned to light duties, which he continued until they were no longer made available to him by the employer, by reason of a recommendation made to the employer by a physiotherapist retained by it, and the employer’s insurer.
30 The behaviour by the plaintiff in this regard speaks persuasively upon the issue of the plaintiff presenting as someone for whom his work was important and who possessed a desire to continue to work, if possible.
31 In those circumstances, I accept the plaintiff’s viva voce evidence that, if he had a capacity for work, he would have chosen to exercise that capacity, but that his symptoms are such that he has not been able to do so.
32 For this reason, I find unpersuasive any medical opinion such as that of Mr Jones, which asserts that the plaintiff’s motivation for work exerts an influence upon the plaintiff’s continued absence from the labour market, or which asserts that the plaintiff presents with largely emotionally sponsored incapacity.
Analysis of the Plaintiff’s left shoulder condition upon his capacity for employment
33 I am satisfied, on the basis of the medical opinion in this case, in particular that expressed by the most recent medical practitioners who have opined, namely:
· Mr Clive Jones, orthopaedic surgeon
· Mr Ash Chehata, orthopaedic surgeon
· Associate Professor Bruce Love, orthopaedic surgeon
that the plaintiff presents with an organic condition in his left shoulder, which now manifests itself in the form of adhesive capsulitis of the left shoulder.
34 While it is put on behalf of the defendant that there is a lack of medical evidence to support the position that the plaintiff has no capacity for employment and that, in these circumstances, the evidence is such that the condition in the plaintiff’s left shoulder does not give rise to an incapacity which meets the statutory threshold in this instance, in my opinion, a persuasive case is made in support of the position to the contrary for the reasons which I will set out.
35 As at January 2013, the plaintiff’s general practitioner certified the plaintiff, by reason of the condition of his left shoulder, as being fit to perform the light duties which the plaintiff was undertaking in the course of his employment with the employer before ceasing work in October 2012, for nine hours per week.
36 Those duties, as described by the plaintiff in his first affidavit, were clearly created in an attempt to find a place for the plaintiff within the defendant’s work place and did not, in my opinion, constitute what could be regarded as true employment duties which might be available within the open labour market.
37 Whilst the work undertaken by the plaintiff during this period clearly demonstrates a capacity for activity, I am satisfied in this instance that such a capacity is no indicator of the presence of a capacity for employment in the open labour market. The plaintiff’s evidence that the performance of even these light duties caused him pain and difficulty was not disputed. Neither was his evidence that the level of the symptoms generated by those duties resulted in the recommendation made to his employer, which was accepted that the duties should be withdrawn from the plaintiff.
38 In my opinion, the uncontested history as to the plaintiff’s return to work with the employer after the onset of his left shoulder symptoms, and his eventual cessation of employment, provides persuasive insight as to the level of the physical incapacity for employment-related activity arising by reason of the condition of the plaintiff's left shoulder as at October 2012 January 2013.
39 The medical evidence as to the plaintiff’s presentation between that time and the present date is not suggestive that there has been any improvement in the function of the plaintiff’s left shoulder.
40 The plaintiff continues to take large amounts of prescription-strength pain control in managing the condition in both his shoulders, and has provided a consistent history of debilitating pain and incapacity in his left shoulder.
41 The defendant’s expert, Ms Joanne Bryant, an occupational therapist, has authored a report in which, on the basis of her expertise as an occupational rehabilitation provider with specific training in job analysis, she has identified a range of potential suitable employment opportunities available to the plaintiff.
42 It is not in issue that identifying the field of potential occupations which might be categorised as involving suitable employment for the plaintiff, was the subject of Ms Bryant’s retainer in this instance, and that those occupations were identified by Ms Bryant as being:
§ Courier
§ Car park attendant
§ Light product assembler
§ Meter reader.
43 I am further satisfied, having regard to the brief afforded to Ms Bryant to identify “suitable employment” within the meaning of that term under the Act and her asserted expertise, that she has identified a representative and in that sense, exhaustive list of the type of work activity which, could possibly be described as meeting the description of suitable employment for the plaintiff.
44 As to the occupations identified by Ms Bryant:
· The first two occupations would seem, by their description, to be dependent on the plaintiff having a driver’s licence. As such, I am satisfied that they do not fall within the plaintiff’s capacity now, or likely capacity in the future.
· The occupation of meter reader involves a prerequisite of an Australian Year 10 secondary qualification, so I find it ludicrous to suggest that the plaintiff, with only six years of education in Eretria, and limited English, would have the capacity to gain such a qualification.
The occupation of light product assembler involves activity which has been described as medium work. Whilst:
(i) neither the upper limb movements involved in the work;
(ii) nor the precise content of the relevant definition of the term “medium work” according to what I presume to be the Stitson definition of that term
are described by Ms Bryant, I interpret the work description, however, as being likely to involve repetitive and largely continuous bilateral involvement of the hands and arms which I am satisfied the plaintiff is unlikely to possess the capacity to undertake.
45 Ms Bryant does, set out the Stinson definition of “light work”; namely lifting 9.1 kilograms maximum, with frequent lifting and/or carrying of objects weighing up to 4.5 kilograms.
46 While the activity so described might be considered as being, perhaps, on the borderline of the tolerance for activity which the plaintiff has with his left arm, which has been repeatedly described by a number of medical practitioners as involving a repetitive lifting tolerance of between 4.5 to 5 kilograms at a maximum, it must follow that the product assembly work involving medium work, according to the Stinson definition, involves duties more significant than those involved in light work in the form of the handling of weights.
47 For these reasons, I am satisfied that the duties involved in product assembly work which involves medium work according to the Stinson definition must fall outside the range of duties which the plaintiff is fit to undertake.
48 It follows that I am satisfied that none of the alternate duties described by Ms Bryant as being potentially suitable for the plaintiff constitute suitable alternative employment duties for him.
49 My finding as to this issue is reinforced by the most recent opinions by the occupational physicians, Dr Davison and Dr Sutcliffe.
50 Dr Sutcliffe has opined that the plaintiff’s condition is such that he is not fit for any form of work which is appropriate for him, having regard to his age, education and work history.
51 Dr Davison, in his most recent report of July 2015, opines that the plaintiff has a capacity for suitable employment, subject to the following restrictions:
(i) avoiding use of arms above chest height;
(ii)avoiding forceful and/or repetitive pulling or pushing with the left upper limb above chest height;
(iii)avoiding manual handling greater than 4.5 kilograms in force or weight between mid-chest and mid-thigh height;
(iv)involving a graduated return to work , commencing at the rate of four hours per day five days per week, and increasing at the rate of thirty minutes per day, per week.
52 I am I satisfied that these activities exceed those identified by Ms Bryant as being involved in the occupation of light product assembler.
53 I am further satisfied that, when the influence upon the plaintiff‘s capacity for work by reason of the condition of his left shoulder is assessed adopting the pre-conditions imposed by Dr Davison for the plaintiff’s return to the workforce, that those pre-conditions give rise to a position which does not equate with employment conditions which might be found to exist in the real labour market.
54 For that reason, I am satisfied that the endpoint of the opinion expressed by Dr Davison largely equates with the endpoint and that expressed by Dr Sutcliffe in her various reports, namely that the plaintiff’s left shoulder condition renders him as being unfit for any suitable employment.
55 I am further satisfied that:
· the opinion by Dr Davison was expressed in the context of his analysis of Ms Bryant’s report on the basis of the restrictions for employment which arise by reason of the incapacity with which the plaintiff presents in his left shoulder; and
· the opinion expressed by Dr Sutcliffe, whilst expressed in terms of the plaintiff’s bilateral shoulders, applies without any reduction in force to the industrial impairment arising as the result of the plaintiff’s left shoulder condition.
56 It follows, taking into account the evidence which I have identified as being persuasive as the condition which the plaintiff presents in his left shoulder and the evidence of the various occupational experts to which I have referred, that the effect of the organic injury to the plaintiff’s left shoulder is such as to preclude him from all forms of suitable employment.
Analysis of the Plaintiff’s right shoulder condition upon his capacity for employment
57 While there are a number of comments by medical practitioners who have opined in this instance, to the effect that the plaintiff presents with no organic injury or real impairment of function in the right shoulder, I am satisfied that this issue is definitively decided in a manner contrary to those opinions by the ultrasound of the right shoulder on 14 March 2013, which reveals the presence of a partial-thickness tear in the right shoulder and tenosynovitis.
58 The opinions expressed by:
· Dr Yu, the plaintiff’s treating general practitioner;
· Mr Chehata, the plaintiff’s treating orthopaedic surgeon;
· Mr Kudelka, a consulting orthopaedic surgeon;
· Associate Professor Love, a consulting orthopaedic surgeon;
· Mr Jones, an orthopaedic surgeon, who has examined the plaintiff on behalf of the defendant
all support the presence of an organic condition in the plaintiff’s right shoulder. I find the opinions on this issue expressed by those doctors to be persuasive to opinions to the contrary.
59 Accordingly, I am satisfied that the plaintiff presents with a rotator cuff tear in his right shoulder and a combination of bursitis and tenosynovitis of the joint, which conditions would be likely to cause significant symptoms in the affected joint and accordingly in the function of the limb effected by that joint.
60 As to the consequence of the condition present in the plaintiff’s right shoulder upon his earning capacity, I take into account the following issues:
(i) Firstly, the plaintiff is right-hand dominant;
(ii)Secondly, immediately prior to the development by the plaintiff of the injury in his right shoulder, the plaintiff presented with a disability in his left shoulder, the effect of which was to occasion a disability upon the plaintiff, with consequences which meet the high threshold established by the Act when defining consequences which are serious, both with respect to pain and suffering and loss of earning capacity. For that reason, the plaintiff presented at that time as an unskilled manual worker whose range of suitable employment was limited to employment involving very restricted activities with his non-dominant left upper limb and largely unrestricted activity with his right upper limb.
61 It follows, in those circumstances, that whilst the plaintiff was fit to undertake unskilled labouring work of the type which he was performing at the time at which he suffered his injury to his right upper limb with the employer, he was a man who was not fit for work which involved unrestricted bilateral upper limb activity and, accordingly, that the range of occupations which might be described as being suitable for the plaintiff, having regard to his limited education and exclusive pre-injury occupation in manual labour, was extremely small.
62 In his most recent report, Associate Professor Love describes the plaintiff’s right shoulder condition as restricting him from working with constant repetitive bilateral upper limb activity, restricting him from work involving lifting loads greater than 5 kilograms with his right arm or working above shoulder height, and precluding him from resuming both his pre-injury duties and the alternative duties which he undertook prior to April 2011.
63 I find this opinion by Mr Love to be persuasive, and I accept it.
64 Even if the consequences of the plaintiff’s injury to his right shoulder insofar as it impacts on his capacity for employment, were to be assessed on the basis of the opinion of Mr Jones, who I interpret as opining that that plaintiff’s right shoulder makes him fit for the range of suitable employment duties identified by Ms Bryant, those duties would be precluded to the plaintiff by reason of:
§ his lack of education;
§ his inability to drive; or
§ the fact that they require bilateral upper limb activity.
65 For these reasons, I am satisfied that the reduction of industrial capacity associated with the condition in the plaintiff’s right shoulder when visited upon a worker whose employment capacity was so limited at the time of his injury by reason of the pre-existing independent incapacity, is such as to effectively expunge any industrial capacity which the plaintiff possessed visa vi his right shoulder and, accordingly that the incapacity with which the plaintiff presents in his right upper limb meets the definition of serious injury as employed by the Act, insofar as it pertains economic loss consequences associated with that injury
66 For the reasons set out above, I am satisfied that the plaintiff is entitled to the leave which he seeks in this instance, both:
§ with respect to the injury to his left shoulder, and
§ with respect to the injury to his right shoulder.
67 I will hear the parties as to the orders which should be made in this instance, and also upon the issue of costs.
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