Giankos v SPC Ardmona Operations Ltd
[2009] VCC 819
•24 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-01496
| PAUL GIANKOS | Plaintiff |
| v | |
| SPC ARDMONA OPERATIONS LTD | Defendant |
| (ACN 004 077 105) |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 and 13 February and 19 June 2009 |
| DATE OF JUDGMENT: | 24 June 2009 |
| CASE MAY BE CITED AS: | Giankos, Paul v SPC Ardmona Operations Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0819 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the right shoulder – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC | Zaparas Lawyers |
| Ms B Knoester and Ms K Galpin | ||
| For the Defendant | Mr W R Middleton SC | Thomas Playford Cutlers |
| Mr N Horner | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 15 November 2005 (“the said date”).
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 s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(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 case is the right shoulder.
5 This matter was initially heard over two days in February 2009. Whilst judgment was reserved, the plaintiff sought to rely on further medical evidence which had been obtained after he suffered an aggravation of his shoulder condition in March.
6 A further affidavit sworn by the plaintiff on 6 April 2009 was tendered. The plaintiff also tendered updated medical reports from Dr Dwyer, Mr Grossbard and Mr Flanc. Dr Dwyer’s partner at the Lister House Medical Centre (“the Practice”), Dr Pedrotti, also provided a very brief report.
7 The plaintiff relied upon other affidavits and gave viva voce evidence. He was cross examined. Ms Janette Ashe, consultant from Recovre, was required for cross examination.
8 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 s.134AB
(i) 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;
(ii) The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (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”;
(v) 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;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 in reaching my conclusions.
The Plaintiff’s Evidence
9 The plaintiff is presently aged fifty eight, having been born in Greece on 12 January 1951. In 1957, he migrated to Australia. He left school at the age of fourteen to work on the family orchard and cool stores. During the 1990s, his family lost the orchard and cool store business.
10 The plaintiff owned the Beehive Hotel in Kew at some time during the 1990s. The lessee went broke and the plaintiff came to Melbourne to take over the operation of the Hotel.
11 The plaintiff then worked for some time in his own packing operation and orchard until the bank sold him up in 2002. He then worked for his brother-in- law in his orchard. He worked ten to twelve hours per day and was paid $500 net per week.
12 In 2004, the plaintiff took on a lease of a one hundred acre property to run cattle and sheep.
13 In 2004, the plaintiff did some casual work with the defendant as a forklift driver. In February 2005, he worked as a casual sorting cardboard and doing other duties. He worked on and off when required. He had been working as a forklift driver for about four months prior to the said date.
14 Prior to the said date, the plaintiff attended a chiropractor, Paul Brennan, in Kew, for fifteen years. He treated the plaintiff’s neck, back and both shoulders. The plaintiff had stiffness and soreness in his shoulders and saw Mr Brennan two to three times for this problem. The plaintiff thought his right shoulder was x-rayed in 1999. In cross examination, the plaintiff agreed he had denied “any previous pain/disability in the area of his present injury/condition” on the claim form relating to the injury the subject of this application. He also agreed he told medico legal examiner, Mr Shannon, that he had no previous problems with his right shoulder.
15 In 2005, the plaintiff was earning about $700 net per week. He confirmed the contents of his claim form, that he sometimes did overtime of eight hours a week at $22 per hour, which resulted in total gross weekly earnings in excess of $1,000. He listed the total number of hours worked per week at thirty eight to forty six at an ordinary hourly rate of $19.98. He noted pre injury average ordinary weekly gross earnings at the time of injury of $1,026.00 and overtime for eight hours totalling $266.00 per week.
16 In cross examination, the plaintiff was not sure as to the amount of overtime he worked. At the time of his injury he was earning $700 clear with weekend work for one or two days, or one and a half days, depending on work availability.
17 One of the plaintiff’s usual tasks with the defendant was to collect fully laden pallets with boxes containing cans of fruit and deliver the pallets on a forklift to the shrink wrap machine. He would then deposit the pallets onto a set of rollers on the machine. The pallet would then move through the machine and be shrink wrapped in the process. Once the laden pallet was properly shrink wrapped, the plaintiff would then move it with the forklift and stack it in the storage area.
18 A number of the rollers on the shrink wrap machine were uneven and as a consequence pallets often got stuck and they would not move through the machine. When this happened there was no choice but to try and pull them through to some extent manually.
19 On the said date, the plaintiff injured his right shoulder at work when he was required to pull a pallet that had become stuck (“the incident”).
20 The plaintiff reported the incident and continued working. He saw the factory nurse. Within the next day or so he saw a chiropractor in Mooroopna for treatment of pain right behind his shoulder blade. The plaintiff first saw Dr McGrath, one of his general practitioners at the Practice, on 17 November 2005. Dr McGrath referred the plaintiff to the Goulburn Valley Hospital for investigation. Over the next week or so the plaintiff struggled and his pain worsened.
21 On 27 November 2005, the plaintiff returned to the Practice and arrangements were made for a scan of his right shoulder. The plaintiff was put off work.
22 Upon receipt of the scan results, the plaintiff was advised he had suffered a tear to one of the tissues in his right shoulder and he was referred to specialist orthopaedic surgeon, Mr Horton.
23 Mr Horton organised an MRI scan on 12 December 2005. On subsequent review by Mr Horton, the plaintiff was advised that the MRI scan confirmed definite tissue damage to his shoulder which could be repaired by surgery. Surgery was carried out by Mr Horton in late December 2005.
24 The plaintiff stayed off work until late March 2006, when he returned on light duties. His job at that time involved packing damaged cans of fruit into cardboard boxes. The cans of fruit came on pallets stacked about six feet high or in large wooden fruit bins. To do this work, the plaintiff had to reach either above shoulder height to take the cans off the pallet or reach down into a bin. This work involved fairly constant use of both arms, and once he filled the boxes with cans he had to stack the full boxes.
25 The plaintiff resumed light duties on a Tuesday. At that time he was still having physiotherapy but was not taking painkillers. His shoulder pain started on his very first day back at work. The following day he was given notice he was to finish work on the Friday. His employment was terminated, along with three other workers. During that week the plaintiff suffered increased pain in his right shoulder. He attended the work nurse on the Friday and then returned to the Practice. Arrangements were made for a further scan the following week.
26 Having finished work with the defendant, the plaintiff immediately looked for alternative work. He saw an advertisement in the newspaper the following day from a local firm, Surdex Steel. He successfully applied for the job. He did not tell his new employer of his injury and he started work the following Tuesday.
27 When the plaintiff was advised the new scan of 6 April 2006 revealed further damage had been done to his shoulder, he was sent back to Mr Horton, who recommended surgery. The plaintiff gave up his job at Surdex Steel on the Friday, having worked there for only four days.
28 A second operation was performed by Mr Horton after some delay on 16 August 2006. The plaintiff took a lot longer to recover after the second operation. Some months later, probably about the end of 2006, he was certified as being fit to perform light duties.
29 From early 2006 until some time in 2007, the plaintiff regularly attended physiotherapy until payments for this treatment were terminated.
30 The plaintiff continues under the care of Dr O’Dwyer and other general practitioners at the Practice. Until March 2009, the plaintiff had not attended the Practice for treatment since early 2007. He currently attends monthly for certificates which he believes are for restricted duties for four to six hours per day. He did not have physiotherapy after the second operation. He has not taken tablets since about early 2007. There was no mention of medication in the plaintiff’s recent affidavit.
31 The plaintiff is right handed. He suffers daily pain in his right shoulder and his right arm is now weaker. Movements of his right arm, particularly above shoulder height, are restricted and there is often a painful clicking sensation in his shoulder with movement. His shoulder pain increases with use, especially with any repetitive or heavy weight bearing activity.
32 The plaintiff’s sleep is poor. He is unable to sleep on his right side, and if he happens to roll onto his shoulder, he is woken by pain.
33 There has been no change in the condition of either shoulder since last year. The plaintiff has difficulty working above shoulder height with his right shoulder. He has difficulty handling weights as he does not have the strength in his right shoulder.
34 In cross examination, the plaintiff assumed it was correct that when he saw Mr Horton on 24 July 2008 he had a full range of painless movement. He explained that Mr Horton was performing movements with his shoulders, he was not moving his shoulders.
35 The plaintiff agreed at that time his right shoulder was about eighty per cent or seventy five per cent and nothing had changed since. In court the plaintiff demonstrated that he could lift his right arm above his shoulder to about half to three quarters of the normal movement. The plaintiff agreed he told Dr O’Dwyer on 7 May 2007 that his right shoulder was very much improved.
36 Prior to suffering injury, the plaintiff led an active and enjoyable life. He usually played golf once every two to three weeks with friends. He has not tried to play golf since. He enjoyed fishing regularly, either on the Murray or Goulburn Rivers, in local channels, or sea fishing. He has not tried fishing since his injury but he believes he would have difficulties casting with his right hand. He used to go shooting regularly with friends around Euroa and Violet Town. He has not tried to resume shooting because he would not be able to balance the butt of the rifle on his right shoulder. Because of his shoulder injury he is no longer able to pick up his older two grandchildren, and is restricted in the way he can interact with them.
37 The plaintiff is bored and frustrated sitting at home not working and he has become depressed, and for some time he has been prescribed anti- depressants. His alcohol consumption has increased with his frustration at being unable to work. His driver’s licence was cancelled for the fourth time last year for some three and a half years for a drink driving offence.
38 At the time of injury, the plaintiff had one hundred beef cattle agisted on his property. He did not maintain or look after them. He sold the cattle in 2006 after the second operation. He then bought about one hundred and twenty sheep, which he sold in 2007. He sold the stock because it was too hard to keep them under control with his right shoulder injury. He did not do any fencing on the property. This work was done by his son.
39 Since the incident, the plaintiff has tried to limit riding his motorbike on the property as he has much less control over the bike because of his right shoulder condition. He used to ride the bike every two to three weeks to keep an eye on the property. He has not ridden it for three months as there is now no need to with no animals on the property. He can drive his 4-wheel drive Ute if he has to.
40 The plaintiff suffered injury riding his motorbike on the property on 19 September 2006, suffering grazes and bruises to his upper arms. Two days later he thought he was having a heart attack and attended Goulburn Valley Hospital where tests were performed and he was discharged the next day.
41 The plaintiff had a further motorbike accident on the property in mid November 2007 whilst trying to straighten his bike. As he did not have the necessary strength in his right arm to turn his bike, he fell into an irrigation ditch and hurt his left shoulder. The plaintiff attended Dr O’Dwyer on 28 November 2007 because of persisting pain. An x-ray was carried out and the plaintiff was subsequently referred to Mr Horton on 29 February 2008, who operated on his left shoulder on 7 May 2008. The plaintiff’s left shoulder is now fine and he no longer has any problems with it.
42 The plaintiff has not worked in any paid employment since March 2006. He was in receipt of weekly payments of compensation until September 2008.
43 The defendant has not offered the plaintiff any further work. When his employment was terminated, the plaintiff was advised by an employee of the defendant that there was no point in him seeking further employment with the defendant.
44 In examination in chief, the plaintiff first mentioned the difficulties he would experience returning to work as a forklift driver. To get onto a forklift he has to pull himself up with his left hand and use his right hand on the steering wheel. Similarly, he has to use his arms getting down from the forklift.
45 The plaintiff is not aware of any employment which a forklift driver does where he is never required to do duties off the forklift. As a forklift driver he was required to manually adjust the pallets from time to time. He had to get off the forklift and push the pallets and try and line them up when they had moved in transportation.
46 When there were damaged goods the plaintiff had to take them out and replace them to complete the pallet. It was not a rare occasion when he was required to undertake this task.
47 At the defendant’s premises, the shrink wrapping of pallets was done automatically with a machine. When engaged in shrink wrapping, the forklift driver had to get off the forklift, hook up the wrap to the pallet and then turn on the machine which spun the pallet around. The driver was then required to break off the shrink wrap and move the pallet away. The lower pallets were shrink wrapped automatically. There was also manual shrink wrapping of the top of the pallet which required working above shoulder height. There was also manual restacking involved when a butt pallet was offloaded to another butt pallet. The forklift driver also had to clean up any spillages.
48 In cross examination, the plaintiff confirmed he was required to replace damaged boxes. Some of that work was above shoulder height. He gave conflicting answers as to the frequency he was required to do this task, describing it as uncommon and then saying that it was not unusual.
49 The plaintiff was required to work in the export area. Part of his duties involved manually adding another three layers of boxes onto a pallet because the palletiser could not stack that high. As part of his duties on the return to work program, the plaintiff had to do over shoulder work in the damaged goods section.
50 The plaintiff has tried to get work as a forklift driver and has applied for such work in the last six months. He could do general forklift driving and shrink wrap work. Whether a forklift driver works in a warehouse or a transport company, there is always lifting and manual work to be done, not just sitting on the forklift. If he was offered a forklift job the plaintiff would take it. He thought he could do the work if lifting was not involved.
51 The plaintiff was cross examined as to his capacity to undertake alternative employment. He thought that maybe he could work as a purchasing officer or a despatch clerk. He could try these jobs but he did not have the necessary computer skills. He could do light process work if it involved below shoulder height work. He could work as a machine operator depending on the machine. He could also work as a product quality controller. He would be able to do a job involving general forklift driving and unwrapping and disposal of shrink wrap from the pallet. He explained that he had no problems when sitting and most of his pain is when sleeping.
52 The plaintiff swore a further affidavit on 6 April 2009. He deposed that on 1 March 2009, having sat down inside his house after he had watered the garden, he felt a sudden pain in his right shoulder. He had severe restriction in his ability to move his shoulder.
53 The following day the plaintiff attended the Practice where he saw Dr Pedrotti, as Dr O’Dwyer was not available. Dr Pedrotti organised an ultrasound of the plaintiff’s right shoulder which the plaintiff understood demonstrated a full thickness tear of the supraspinatus tendon.
54 Since 1 March 2009, the plaintiff’s level of pain has increased. He finds it much more difficult to do things around the house and he is more restricted in his movements. With his arm extended in front of him he cannot lift it to above shoulder height. His range of motion is even less with his right arm extended to the side – not being able to go any higher than a bit below shoulder height.
The Plaintiff’s Medical Evidence
55 Dr McGrath from the Practice first saw the plaintiff for his right shoulder problem on 17 November 2005.
56 The plaintiff also attended Dr Nasrah at the local after hour’s clinic on 27 November 2005. Dr Nasrah ordered an ultrasound of the plaintiff’s right shoulder which showed a complete tear of the supraspinatus muscle.
57 The plaintiff saw Dr O’Dwyer at the Practice on 30 November 2005. He complained to Dr O’Dwyer that his neck, upper back and particularly his right shoulder had become very painful whilst moving pallets at work.
58 On examination, there was marked limitation of right shoulder movement. The plaintiff was given a local anaesthetic and steroid injection in an attempt to relieve his pain and he was referred to Mr Horton, orthopaedic surgeon.
59 Dr O’Dwyer noted the plaintiff progressed gradually following the first operation and after regaining almost a full range of movement the plaintiff was allowed to return to work on 20 March 2006 for full duties on the forklift without lifting. He noted the plaintiff had to do work above shoulder height and the plaintiff developed right shoulder pain again on 22 March 2006, the day on which he was dismissed from his employment.
60 On 24 March 2006, the plaintiff attended Dr Wang at the Practice with a painful right shoulder with reduced movement. The plaintiff was referred for a further ultrasound which suggested a recurrent full thickness tear of the anterior half of the supraspinatus tendon, and he was referred back to Mr Horton.
61 As of May 2006, Dr O’Dwyer thought the plaintiff was fit for work not involving lifting, repetitive use of the right arm or use of the arm above shoulder level. Dr O’Dwyer noted the plaintiff’s shoulder had been slowly improving since the second operation.
62 Dr O’Dwyer mentioned the subsequent injury to the plaintiff’s left shoulder following the motorbike accident in December 2007. His left shoulder was repaired in May 2008 with subsequent development of frozen shoulder.
63 As of December 2008, Dr O’Dwyer considered the plaintiff fit for work with regard to his right shoulder. In his view, the plaintiff was unable to perform duties above his head or to engage in heavy or repetitive lifting. No further treatment was required. He considered the prognosis was for the current limitation of movement to remain unchanged to any significant degree. He thought the plaintiff had a minor disability in terms of being unable to carry out a full range of shoulder movement.
64 Dr O’Dwyer considered that the forklift operator and machine operator positions seemed appropriate for the plaintiff’s condition. Although those jobs specified the use of both arms, Dr O’Dwyer noted the job descriptions did not indicate that lifting or work above the shoulders was required. He believed they represented possible future employment opportunities for the plaintiff.
65 Dr O’Dwyer believed the plaintiff was capable of performing the duties set out in the Recovre report of forklift operator in a food processing plant and a machine operator in the same location. However, he noted as the plaintiff’s shoulder still remained somewhat stiff and limited in its range of movement, the plaintiff’s introduction to those positions would need to be in an initially limited capacity, for example, four hours, three days per week. Dr O’Dwyer hoped those hours could be increased over some months until the plaintiff was able to work a full day.
66 Dr Pedrotti, a member of the Practice, certified on 9 April 2009 that the plaintiff was suffering from chronic rotator cuff degeneration and was not fit for manual work and would not become so in the foreseeable future.
67 Having seen the 2009 ultrasound, Dr O’Dwyer, on 19 March 2003, reported that the current pathology had certainly developed secondary to the plaintiff’s work related injury. Dr O’Dwyer thought that the tendon had weakened to such an extent that “this almost spontaneous tear had occurred”. He considered operative treatment was unlikely to be of any benefit.
68 In Dr O’Dwyer’s view, the plaintiff had a current work capacity, however, this had been limited further by the recent tear. He considered the plaintiff would face increased difficulties in operating a forklift in a food processing plant or as a machine operator. He thought that certainly the plaintiff’s activities using his right arm would by further curtailed by the recent tear. In Dr O’Dwyer’s view, although the plaintiff’s pain was likely to improve, he was not likely to regain significant strength and his range of movement would remain limited. He considered the plaintiff would certainly not regain full movement and in his view, this would no doubt limit the plaintiff’s work potential.
69 The plaintiff first attended Mr Plant at the Goulburn Valley Physiotherapy Centre in January 2006 after the first operation. There were seven consultations before the plaintiff returned to work on light duties in March 2006.
70 Following the second operation, the plaintiff attended on six occasions between 30 August and 14 November 2006. The plaintiff again presented in January 2007 with ongoing shoulder pain, limited range of movement and neck stiffness. Weekly then fortnightly treatments were undertaken involving ultrasound, AC joint and glenohumeral joint mobilisation, cervical spine mobilisation, advice and exercise prescription.
71 Mr Plant noted on 24 July 2007 that the plaintiff had recovered eighty five to ninety per cent movement and only fifty per cent strength. As such, he considered the plaintiff remained limited with tasks that involved repetitive, sustained or forceful movements of the right shoulder and movement away from the body or shoulder height.
72 Mr Richard Horton, orthopaedic surgeon, first saw the plaintiff on referral from Dr O’Dwyer on 5 December 2005. At that time the plaintiff described pain over the point of the right shoulder with radiation to the region of the deltoid muscle.
73 On examination, Mr Horton noted the plaintiff was in extreme pain. Clinically the plaintiff demonstrated all the hallmarks of an acute tear of his rotator cuff, which was confirmed on an ultrasound performed on 28 November 2005. Mr Horton organised an MRI scan on 16 December 2005, which confirmed the presence of a full thickness protracted tear of the supraspinatus measuring approximately 2.5 centimetres in length.
74 Surgery was carried out on the acutely ruptured rotator cuff on 21 December 2005. Mr Horton described a massive tear which was untidy and ragged and a partial acromionectomy was performed to decompress the rotator cuff as well as repair the cuff by direct suture.
75 Post-operatively, on 3 February 2006, Mr Horton noted that the plaintiff had regained an almost full range of movement with little impingement pain. The plaintiff still could not lie on his right side at night but was more comfortable than he had been prior to surgery. On examination on 3 March 2006, Mr Horton noted that the plaintiff’s clinical situation was satisfactory. He had a good range of active shoulder movement and little pain.
76 A further MRI scan was organised on 12 April 2006, which indicated a re-tear of the plaintiff’s rotator cuff in much the same situation as the original tear.
77 The plaintiff returned to see Mr Horton on 23 May 2006, complaining of having suffered the sudden onset of right shoulder pain after he had returned to work carrying out repacking duties and lifting boxes at waist level.
78 A second operation was undertaken on 16 August 2006, after which Mr Horton noted the tendon quality was fairly poor and only approximately eighty five per cent of the tendon could be repaired by direct suture.
79 On review on 3 October 2006 post operatively, Mr Horton noted the plaintiff was making slow but steady progress. The plaintiff still had pain and limits of motion and he was sent for physiotherapy.
80 On 14 November 2006, the plaintiff told Mr Horton he was able to use his arm quite comfortably below shoulder level but at ninety degrees there was still some impingement pain. On review on 29 January 2007, the plaintiff reported that he felt as though his shoulder was improving and that he was able to do more with his arm.
81 On the last examination on 24 July 2008, Mr Horton noted that the plaintiff was able to put both shoulders through a full range of painless, active movement and he was virtually asymptomatic at that stage. The plaintiff has not been reviewed since.
82 At the time of this last review, Mr Horton considered the plaintiff was fit to return to work requiring moderate physical activity, but always with care using the right arm away from the body. In his view, that restriction would necessarily bar the plaintiff from performing tasks that required heavy lifting but Mr Horton thought the plaintiff was fit to return to forklift driving. He did not consider there appeared to be any necessity for any further treatment and thought that the prognosis for the right shoulder was good. In his view, the plaintiff was unfit for heavy manual work because of the risk of future injury.
83 The plaintiff was examined by Mr Gary Grossbard, orthopaedic surgeon, on 16 December 2008. The plaintiff told Mr Grossbard he was unable to use his shoulder fully and he had lost some movement. He had pain when he rolled over in bed and occasionally during the day. The plaintiff did not relate the pain to any particular activity and said he was unable to lift heavy weights because of loss of shoulder power.
84 The plaintiff told Mr Grossbard he had difficulty coping with his property and that he had sold his cattle and sheep. The plaintiff told him he used to undertake recreational activities, including shooting, fishing, golf and billiards, but was not able to do so anymore. The plaintiff also complained of developing a heavy drinking problem which had put a strain on his marriage.
85 On examination, Mr Grossbard noted there was reasonable power of the supraspinatus and infraspinatus, as well as the subscapularis muscles. The power was slightly diminished compared to the left. There was some mild wasting of the supraspinatus muscle on the right side.
86 Mr Grossbard considered the plaintiff had ongoing permanent symptoms in relation to his right shoulder. In his view, the plaintiff’s ability to resume activities where lifting, pulling and pushing of objects was required or above shoulder level would be significantly reduced.
87 Mr Grossbard considered the plaintiff would not be able to resume his pre injury employment but he was fit for alternate duties at or below shoulder height where lifting and repetitive forceful movements were not required.
88 He believed the plaintiff’s prognosis was guarded in view of his psychological status and increased reliance of alcohol. He believed further treatment should remain conservative and that there was no place for further surgical intervention at any stage.
89 Having been provided with the Recovre report, Mr Grossbard noted that the job of forklift operator would be somewhat difficult for the plaintiff. In particular, the description and photographs suggested a need to forcibly unwrap pallets. Mr Grossbard considered the repeated use of the plaintiff’s arms for long periods may also be difficult. He thought the plaintiff may cope with these activities for short periods but he doubted he would be able to manage a full day’s activity.
90 Mr Grossbard considered the role of machine operator would be similarly difficult, particularly if the plaintiff was required to undertake mopping. He noted that there would be lifting required at or above shoulder height, and in those circumstances, he considered the work was probably inappropriate. Although the plaintiff, in his view, may manage some aspects of the job for short periods of time, he doubted he would be able to cope with a full day’s work. He noted physical issues were complicated by the psychological issues found on examination.
91 Mr Grossbard provided a further report, having seen the 2009 ultrasound and having read Dr O’Dwyer's recent report and the plaintiff’s 2009 affidavit.
92 Mr Grossbard thought the plaintiff’s shoulder pain on 1 March 2009 may not have been specifically related to the timing of a re-tear as the incidence of a re-tearing without specific incident is high. He agreed with Dr O’Dwyer that further surgery would be futile.
93 Mr Grossbard considered the plaintiff’s work capacity was basically unchanged. In his view, the absence of a rotator cuff did not preclude someone from undertaking activity with their arms at the side. Mr Grossbard noted that even at the time of his last examination he thought the plaintiff‘s shoulder mobility was restricted and apart from issues of pain control, he considered the plaintiff’s function was not altered significantly.
94 Mr Charles Flanc, vascular and general surgeon, examined the plaintiff on 13 October 2008. The plaintiff then told him his right shoulder ached, especially during the night and on elevation of his arm above the horizontal level. He also occasionally felt a painful click.
95 Mr Flanc noted the plaintiff’s history of non insulin dependent diabetes and a history of chronic back pain, together with a left shoulder problem from which he had recovered.
96 On examination of the right shoulder, Mr Flanc found no wasting of the deltoid muscle and he could not feel a click on movement. Flexion, abduction and external rotation were associated with pain at the extremes. Upward movement was only mildly limited but associated with pain.
97 In Mr Flanc’s view, both injuries to the right shoulder were significantly related to the plaintiff’s work. He noted the plaintiff’s recovery following the second injury had been slow, but clinical examination revealed only slight limitation of movement, although there was pain at the extremes of movement.
98 Mr Flanc considered the plaintiff’s right shoulder had stabilised and it was likely he would be left with a mild limitation of movement and a vulnerability to flare ups with any heavy use of the right shoulder and particularly repeated elevation of his arm above the horizontal level.
99 Mr Flanc considered the plaintiff was not fit to return to any form of heavy or repetitive work involving the use of his right upper limb. Theoretically the plaintiff could work as a forklift driver providing the work did not involve any heavy use of his right upper limb. Mr Flanc did not know whether that was realistic in a factory situation.
100 The plaintiff advised Mr Flanc he had applied for half a dozen or so jobs as a forklift driver but he had been rejected because of his age and because of lifting being required, and also because he mentioned a WorkCover claim. In such circumstances, Mr Flanc thought it may not be realistic to expect the plaintiff to return to forklift driving.
101 Mr Flanc noted the plaintiff had some basic computer skills which were self taught, and the question was whether the plaintiff could be retrained into a sedentary office type occupation. In Mr Flanc’s view, a vocational assessment would be appropriate, but he had serious doubts whether the plaintiff would be able to be accepted into even a sedentary occupation considering his age and background.
102 Having been forwarded the Recovre report, Mr Flanc noted that he did not know what forklift operation duties involved. If the plaintiff had to press buttons, change gears or turn a steering wheel then Mr Flanc thought this job may be reasonable, at least on a part time basis initially.
103 Mr Flanc said he would be interested to know more about the requirement to remove cardboard as a machine operator in the food processing plant. If the plaintiff’s lifting did not involve any heavy weights and he did not have to reach above shoulder height, then, in Mr Flanc’s view, it may be reasonable for the plaintiff to start this particular job, at least initially on a part time basis for perhaps four hours a day.
104 Mr Flanc was provided with a copy of the 2009 ultrasound, the recent report from Dr O’Dwyer and the plaintiff’s 2009 affidavit.
105 Mr Flanc noted that this current material indicated that the plaintiff had a spontaneous flare up of right shoulder pain and the ultrasound showed a recurrent complete tear of the supraspinatus tendon. Mr Flanc noted the plaintiff was to consult Mr Horton and that it was important to obtain Mr Horton’s update on this matter as to whether surgery or conservative treatment was appropriate.
106 Mr Flanc considered the plaintiff would clearly still be unfit for any heavy use of his right upper limb and particularly the lifting of heavy weights above the horizontal level. Confirming his earlier views, Mr Flanc also raised the question of whether the plaintiff could be retrained into a sedentary office type occupation although considering the plaintiff’s age and background, Mr Flanc thought it was unlikely the plaintiff would succeed in finding such a job in the open market. Mr Flanc noted that he looked forward to receiving Mr Horton’s comments on this matter.
Investigations
107 An ultrasound of the right shoulder taken 28 November 2005 showed a complete rupture of the right supraspinatus tendon with central retraction of the fibres. A moderate amount of bursal fluid was also noted. The subscapularis longhead of biceps and infraspinatus tendons were intact and normal. It was concluded there was an acute rupture of the right supraspinatus tendon with associated joint effusion.
108 An MRI scan of the right shoulder taken on 16 December 2005 showed an approximate 2.5 centimetre full thickness retracted tear of the supraspinatus tendon, medial and lateral arch stenosis due to AC joint arthropathy and a small subacromial spur.
109 An ultrasound of 3 February 2006 showed a recurrent full thickness tear of the anterior half of the supraspinatus tendon.
110 An MRI scan of the right shoulder taken on 13 April 2006 showed a recurrent full thickness tear of the supraspinatus tendon.
111 An ultrasound of the right shoulder carried out on 2 March 2009 showed a complete tear of the right supraspinatus tendon.
The Defendant’s Medical Evidence
112 The plaintiff was examined by Mr Leitl, orthopaedic surgeon, on 12 December 2006. At that stage the plaintiff told him his right shoulder was continuing to improve. It was comfortable at rest but was painful if he tried to use the arm, particularly above chest height. The shoulder remained painful at night.
113 The plaintiff was taking Digesic tablets twice a day but he was gradually reducing the dose as his level of pain was improving. The plaintiff reported a reduction in pain and an improvement in right shoulder movement as time passed.
114 The plaintiff complained that he had become depressed and was taking Zoloft. He was attending physiotherapy weekly and he was engaged in a home based self directed exercise program. The plaintiff told Mr Leitl that he did very little with the sheep on his property, with his son doing the work. He said his activities of daily living were slightly restricted but he did not have a full range of movement as yet. He had given up golf, fishing and shooting since the first injury and he spent a lot of time watching television and he attended the sale yards twice a week.
115 On examination, Mr Leitl noted there was mild generalised wasting around the plaintiff’s right shoulder and some restriction of movement. There was a 2.5 centimetre wasting of the right arm commensurate with disuse.
116 Mr Leitl diagnosed a recurrent tear of the right supraspinatus tendon surgically treated with partial recovery.
117 At that time, Mr Leitl did not think the plaintiff was fit for his pre injury duties but thought he would recover sufficiently to enable him to return to forklift driving in due course – full function being up to a year away. Mr Leitl thought the plaintiff was currently fit for alternate duties where he would not be required to undertake repetitive duties involving the right upper limb or at above chest height. He thought the current return to work plan, namely boxing damaged product, was suitable, provided the product was placed at waist height.
118 Mr Michael Shannon, orthopaedic surgeon, examined the plaintiff on 3 April 2007. On examination, Mr Shannon found wasting of the right shoulder girdle and moderate restriction of right shoulder movement with equivocal impingement signs. He noted the plaintiff had painful restriction of movement, significant muscle wasting and weakness.
119 Mr Shannon considered at that stage the plaintiff was, and probably would be in the future, limited in the performance of work involving strenuous or repetitive use of his right arm, heavy lifting or work above shoulder level.
120 Mr Shannon thought the plaintiff was probably reaching the point where he could drive a forklift but he could not move heavy pallets on rollers. He supported restrictions that the plaintiff not work above shoulder height, not lift items above two kilograms and that he be able to work at his own pace and report any pain. He concluded the plaintiff had a current work capacity and thought he was capable of driving a forklift with the restrictions noted.
121 Mr Robin Williams, orthopaedic surgeon, examined the plaintiff on 7 February 2008. On examination, Mr Williams found there was mild wasting of the deltoid and supraspinatus muscles. There was limitation of flexion and the plaintiff described a catching pain as he raised his arm. Crepitus was detected when Mr Williams palpated the point of the plaintiff’s shoulder during movement. He noted the plaintiff had quite good rotatory movements of the shoulder with his arm by his side.
122 The plaintiff told Mr Williams his right shoulder hurt on and off. It hurt if he lay on it in bed. It cracked and twitched, and the plaintiff described it as “not being that good”. The plaintiff was able to use his right upper limb for quite a lot of activities at and a little above waist level.
123 Mr Williams thought the plaintiff could operate a forklift but because of his pain and weakness and restricted elevation of his arm, jobs requiring such activities would be too difficult. The plaintiff could undertake employment within his experience provided he was not required to use his right upper limb to any extent at shoulder level.
124 Mr Williams diagnosed persisting rotator cuff insufficiency in the right shoulder as a consequence of the supraspinatus tendon tear and incomplete repair. He thought the plaintiff’s condition was unlikely to change in the foreseeable future and he did not believe further treatment would help. He noted there may be later degenerative change
Vocational Assessments
125 In December 2008, an employment capacity analysis was carried out by Ms Ashe, occupational therapist and injury management consultant employed by Recovre.
126 Ms Ashe based her opinion on medical reports, interviews with a worker currently employed by the defendant and with the defendant’s return to work coordinator and her own observations when she attended the defendant’s premises at Mooroopna (“the work site”) on 17 December 2008. The plaintiff was not interviewed.
127 Ms Ashe attended the work site for about four hours, during which time she spent an hour and a half assessing the role of forklift driver and an hour examining machine operator duties.
128 Ms Ashe concluded that taking into account the plaintiff’s education, work experience, transferable skills and current physical tolerances (based on the medical opinion that he had a capacity for suitable employment), it was recommended that the plaintiff would be able to perform job roles as a forklift operator, despatch clerk, purchasing officer, light process work, light machine operation, product quality controller and customer services officer.
129 The jobs of a forklift operator and a machine operator were identified by Ms Ashe in the Mooroopna area.
130 The forklift operator job was assessed within the one kilogram area at the work site. In cross examination, Ms Ashe conceded that this job was not representative of the demands of the other forklift operator roles within the defendant company.
131 Ms Ashe identified the critical work demands as sitting, which was required for all forklift driving, and was constant throughout the day, perhaps eighty to ninety per cent of the time; use of the arms and hands to perform all forklift operation duties required constantly throughout the day with sustained periods with minimal force; bending of brief duration of less than ten seconds required to remove pallet packaging; lifting less than one kilogram required to move pallet packaging only approximately once every twenty minutes to hoppers; climbing to get in and out of the forklift frequently throughout the day and no reaching above shoulder height.
132 A forklift operator would also be involved in pallet unwrapping using a box cutter to remove plastic wrapping on the pallets and then have to throw the wrapping and waste in the bin.
133 The job involved rotation of two different tasks involving the unwrapping and disposal of shrink wrap from the pallet and general forklift operation. Ms Ashe noted the present wage for that job was $20.20 per hour.
134 The machine operator role was also assessed in the one kilogram area. She noted a machine operator was responsible for visually monitoring the loading of product onto the packaging line. The job involved troubleshooting and minimising downtime on the line by predicting stoppages and taking action to prevent significant lost time in production.
135 The machine operator was required to remove an identification label and record details in a production running sheet. He was also required to record the time the pallet of the product was started and finished.
136 The machine operator was required to monitor machine display and respond to warning bells, manually remove packaging or spills when the machine did not function properly, and at times undertake cleaning duties with a mop and bucket. There was no reaching above shoulder height required in that job.
137 The machine operator role involved three different tasks, namely pallet inspection, visual observation and clearing the loading area. The hourly rate for that job was $23.84.
138 Ms Ashe conceded that this particular role may not reflect the demands of other machine operator roles within the defendant company.
139 In response to queries raised by Mr Grossbard in his report, Ms Ashe provided a further employment capacity analysis.
140 Elaborating upon the forklift driver’s role, Ms Ashe noted that the driver would be required to steer using only his left hand with a spinner knob below shoulder height. Operation of lifting levers using the right arm only was in a vertical plane from chest to waist height and required no above the shoulder operation and involved reaching forward to a maximum of 400 millimetres.
141 Eighty to ninety per cent of the day would be spent actually driving a forklift with the worker constantly using his left upper limb to steer, though there was opportunity to rest the right limb on his lap. The assessed forklift operator role did not require any manual movement of pallets or other heavy items, and a pulling force of up to one kilogram was required to remove plastic shrink wrapping.
142 The machine operator was required to manually lift and remove single sheets of cardboard, weighing les than one kilogram, placed between layers of food product on the pallet only when the machine failed to do so automatically. The rate at which such manual work is required varies greatly.
143 Machine operators were required to press the operating buttons and touch screen buttons, one touch per thirty seconds, and there was no requirement for constant contact with buttons.
144 The mopping of spilled products generally occurred approximately less than one spill per hour, or could happen more frequently. Any above shoulder height lifting was of cardboard sheet and was not listed as an essential work demand as it could be eliminated via modification in technique used by the worker and could be undertaken with the left arm only.
145 Whilst she was at the site, Ms Ashe did not see any pallets over six feet tall. She estimated that the incumbent worker was in and out of the forklift upwards of twelve times an hour but he would tend to get off the forklift to visually monitor the placement of pallets.
146 Ms Ashe did not observe any manual handling on top of an existing pallet. She agreed that unlike jobs she had observed at other premises, there was no actual heavy lifting off the forklift. She agreed it was quite commonplace for forklift drivers in larger factories to be responsible for those sort of duties.
147 Ms Ashe understood the role she assessed was not the role that the plaintiff had been performing before being injured. She never saw manoeuvring of pallets by hand in the hour whilst at the work site nor did she see a situation where pallets were stacked against the wall and the forks could not be manoeuvred under them. She saw one spillage. She did not see any shorter pallets.
148 Ms Ashe agreed that the lifting involved in forklift driving occurred in a whole range of circumstances and was highly variable, depending on the specific workplace.
149 Having been advised of Dr O’Dwyer’s most recent opinion as to the plaintiff’s capacity, Ms Ashe did not change her view as to the plaintiff’s suitability for the jobs identified by her.
Findings
150 It is accepted that there was a compensable injury on the said date.
151 It is agreed the plaintiff suffers from an organically based condition to his right shoulder which has been diagnosed as full thickness tears in the supraspinatus of the right shoulder.
152 Following the second operation, Mr Horton noted that the tendon quality was fairly poor and that only eighty five per cent of the tendon could be repaired by direct suture. No further investigations were carried out until the March 2009 ultrasound which showed a complete tear of the right supraspinatus tendon.
153 The issue for determination is whether the impairment to the right shoulder is “serious”.
154 The impairment to the plaintiff’s right shoulder 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, as at the date of the hearing, as being “more than significant or marked”, and as being “at least very considerable”.
155 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26.
156 Counsel for the defendant, whilst not conceding the issue of pain and suffering, submitted the issues in dispute were principally confined to loss of earning capacity. Cross examination therefore focussed to a large extent on the plaintiff’s capacity for suitable employment, and in particular his capacity to engage in forklift duties.
157 In relation to pain and suffering consequences, counsel for the plaintiff submitted the impairment met the statutory test of seriousness on a number of grounds.
158 The plaintiff has undergone surgery to his shoulder on two occasions. Treating orthopaedic surgeon, Mr Horton, was unable to sufficiently repair the torn tendon by suture in the second operation. Despite surgery, the plaintiff has been left with wasting of his right shoulder, together with weakness and decreased range of movement.
159 The plaintiff cannot expect improvement in his condition and it is therefore likely to continue into the foreseeable future. As was submitted by counsel for the plaintiff, the recent flare up in March 2009 indicated the plaintiff’s right shoulder problem was ongoing and vulnerable to re-tear without significant activity.
160 The plaintiff’s condition, whilst not one involving constant pain, is activity related and it continues to cause him pain and discomfort when he is trying to sleep.
161 Whilst no claim was made for pecuniary loss in relation to the plaintiff’s inability to engage in farming activities, the plaintiff has lost the enjoyment of this lifestyle as a result of his inability to handle stock or engage in other farming activities.
162 The plaintiff has not attempted to go shooting since the incident because he does not believe he could control the butt of his rifle on his shoulder. He also anticipates heavy fishing would be difficult, particularly casting with his right hand. He is restricted in his ability to play with his grandchildren.
163 The plaintiff is precluded from engaging in any overhead tasks. He no longer has a capacity for unrestricted manual employment – a view supported by all medical practitioners in the case.
164 Taking into account the unchallenged evidence of the plaintiff as to his disability and limitations, I accept that the impairment to the plaintiff’s right shoulder, when judged against other cases in the range of possible impairments, can fairly be described as “at very considerable” and “more than significant” or “marked”.
Loss of Earning Capacity
165 Having satisfied the narrative requirements 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 forty per cent or more – s.134AB(38)(e)(i); and also (b) after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 166 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. 167 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
168 “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.
169 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.
170 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.
171 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.
172 Counsel for the plaintiff submitted that the “without injury” earnings figure in this case should be in the range of $1,100 per week based on the plaintiff’s pre injury earnings of $1,026 made up of wages of $760, together with overtime of $266. He also submitted that the figure of $1,200 could be justified, relying upon the earnings of a comparable employee of the defendant in the three to four weeks after the incident.
173 I note, however, that the comparable employee relied upon earned amounts more consistently in the upper range of $900 per week and as little as $559 per week in the following year.
174 Counsel for the defendant submitted a more appropriate figure was $760 per week based on a 38 hour week at $19.98 per hour. Sixty per cent of that weekly figure of $760 is $456, an annual figure of $23,712. This base rate was not disputed.
175 Given the fluctuating nature of the plaintiff’s level of income in the three years prior to the incident, as set out below, and his base income of $760 at the time of the incident and the fact that he has not established the regular receipt of overtime payments, I accept a figure which most fairly reflects his earning capacity is $760 per week.
Financial Year Income
2002-2003 $15,168.00 2003-2004 $33,496.00 2004-2005 $23,574.00
176 The plaintiff’s gross earnings from personal exertion at the date of hearing are nil.
177 Counsel for the plaintiff put the case down to the fact the plaintiff says there is no forklift job that does not involve other tasks and that the defendant says there is such a job.
178 I do not accept the case is as simple as this. As counsel for the plaintiff at the resumed hearing agreed, the issue is the plaintiff’s capacity for suitable employment.
179 Counsel for the defendant submitted that the preponderance of medical evidence, in particular the plaintiff’s treating doctors, and the assessment of Recovre carried out in December 2008, support the proposition that the plaintiff has the capacity to work full time as a forklift operator or machine operator.
180 It was submitted that this position was confirmed by the medical evidence obtained following the 2009 ultrasound.
181 Counsel for the plaintiff submitted that realistically forklift work involved wider duties than merely driving and the plaintiff would have problems with such duties. Counsel for the plaintiff criticised the Recovre report which he described as being based upon “hearsay upon hearsay”. He also submitted an adverse inference could be drawn against the defendant for its failure to call the incumbent worker interviewed by Ms Ashe.
182 In an application pursuant to s.134AB, the onus is squarely on the plaintiff to establish loss of earning capacity and to the requisite threshold. The onus is not discharged by the rejection of the defendant’s calculations or even their witnesses altogether on the topic: see Barwon Spinners (supra) at para 70.
183 In these circumstances, I do not accept any inference should be drawn against the defendant for its failure to call the incumbent worker. I accept that Ms Ashe’s opinion is clearly based on material from other sources and has its limitations, but there no vocational evidence relied upon by the plaintiff.
184 The plaintiff must therefore establish that there is no suitable employment in which he could earn more than the threshold of $23,712, and that this situation is permanent.
185 Counsel for the plaintiff submitted that the continued payment of weekly payments to the plaintiff by the defendant in circumstances where there was evidence that there was a job available for the plaintiff, constituted an admission against interest by the defendant – an acceptance by it that the plaintiff was not capable of doing the job available as it had not been offered to him and weekly payments were made.
186 I do not accept such an inference can be drawn. Save for the plaintiff’s evidence that he was told on termination of his employment that there would be no job for him with the defendant in the future, it is pure speculation as to why a job has not been offered.
187 Whilst I accept that forklift duties involve work beyond actually driving the forklift, I am not satisfied that all forklift work involves overhead work such that the plaintiff could not work full time or significant hours with some slight restrictions.
188 The plaintiff can get on and off the forklift. The operation of the actual forklift does not require overhead movements. The plaintiff can clean up spillages; he can cut shrink wrapping if no overhead work is involved; he can readjust pallets below shoulder height and he can make manual observations of the pallets.
189 The preponderance of medical evidence supports this view. Significantly, the plaintiff’s treaters support such a return to work. Mr Horton considered the plaintiff was fit to return to work requiring moderate physical activity, but always with care using his arm away from the body. Whilst that restriction would necessarily bar the plaintiff from performing tasks that required heavy lifting, Mr Horton thought the plaintiff was fit to return to forklift driving. There is no further comment from Mr Horton following the 2009 ultrasound as to the plaintiff’s work capacity.
190 Dr O’Dwyer believed the plaintiff was capable of performing the duties of both jobs in the Recovre report although the plaintiff’s introduction to those positions would need to be in an initially limited capacity, for example, four hours, three days per week. He hoped those hours could be increased over some months until the plaintiff was able to work a full day. In his March 2009 report, Dr O’Dwyer considered the plaintiff has a current work capacity.
191 Medico legal examiner Mr Grossbard, having considered the recent material, thought the plaintiff’s work capacity was basically unchanged. Mr Flanc essentially confirmed his earlier view.
192 Further, I accept that the plaintiff has the physical capacity to undertake machine operator work, such as that described by Ms Ashe. On his own evidence, the plaintiff has such a capacity depending on the machine involved. He would have no problems with pushing buttons or performing the other types of tasks described. Further, the plaintiff thought he could do light process work if it involved below shoulder height work. He could also work as a product quality controller.
193 Ultimately working full time after a graduated return to work, as suggested by Dr O’Dwyer, I accept that the plaintiff could earn $20 per hour as a forklift driver. He could earn $760 for a 38 hour week and $39,520 per annum. Earning $23 per hour as a machine operator he would earn $874 for a 38 hour week and $45,448 per annum.
194 Taking into account all of the evidence - the plaintiff’s evidence to the contrary standing alone - I do not accept that the plaintiff has a permanent incapacity for employment such that he could not earn in excess of $23,712 per annum.
195 Working only twenty five hours per week in either of the jobs suggested by Recovre and supported by the plaintiff’s treating doctors, he would earn in excess of $25,000 per annum.
196 Having made this finding, I am not required to consider the retraining and rehabilitation issues set out in s.134AB(38)(g) of the Act.
197 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and I dismiss his claim in relation to loss of earning capacity.
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