Gorgievski v Venture Industries Australia Pty Ltd and VWA
[2011] VCC 1476
•20 October 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES - COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-04617
| NIKOLA GORGIEVSKI | Plaintiff |
| v | |
| VENTURE INDUSTRIES AUSTRALIA PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 October 2011 |
| DATE OF JUDGMENT: | 20 October 2011 |
| CASE MAY BE CITED AS: | Gorgievski v Venture Industries Australia Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1476 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act s.134AB – impairment to the left shoulder – loss of earning capacity only.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Rattray QC with | John Dellios & Associates Pty Ltd |
| Mr J Brett | ||
| For the Defendants | Ms R Annesley | Minter Ellison |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to Section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment on 6 September 2004 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, pain and suffering having been conceded at the commencement of the hearing.
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in Section 134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning permanent serious impairment or loss of a body function.
4 The impairment of body function relied upon is the left shoulder.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. The plaintiff also relied upon an affidavit sworn by his wife, Ica, on 19 May 2010. The defendants relied on an affidavit sworn on 7 September 2011 by the first defendant’s former paymaster, Mr Bleakley.
6 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
7 In this application, 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.
8 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.
9 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
10 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Hayhill Pty Ltd v Hodge [2006] VSCA 194 in reaching my conclusions.
The Plaintiff’s Evidence
12 The plaintiff is presently aged sixty five, having been born in 1946 in Macedonia. He came to Australia in 1970. The plaintiff married in 1972. He has two adult children and three grandchildren.
13 The plaintiff has no formal trade or qualifications. He worked in Australia for various factories until commencing work with Ford Australia in 1979. In 1995, the area where the plaintiff worked was taken over by the first defendant, who became his employer, and the plaintiff continued to do the same work as previously and in the same place.
14 The plaintiff was employed as a die controller. He was responsible for fitting dies to injection moulding machines and then getting them running properly. After he performed that task, an operator would take over the machine and use it to produce goods.
15 In the course of his employment, the plaintiff had a number of injuries over the years but he had always been able to return to work and at times he had not even had time off.
16 In cross-examination, the plaintiff was taken through his earlier work history and qualifications.
17 The plaintiff agreed that when he first started working at Ford, he was a trainee die setter and by February 1980 he was qualified in that regard.
18 The plaintiff confirmed that that job involved putting the dies into the various injection moulding machines and then the operators ran the machine. Setters were not required to lift the moulds or the dies. They were lifted by crane. However, the setters needed to use a six-foot pipe in order to tighten the bolts, which the plaintiff described as very heavy work, requiring a lot of force.
19 In July 1981, the plaintiff was reclassified as a die controller, having had to undergo some training. He was also a group leader to the die setters.
20 Being a controller did not mean that the plaintiff did not have to set up or do the dies. He had to do the same work as a die setter. The only difference between a setter and a controller was that a controller was supposed to have more knowledge than a setter. The plaintiff was required to fix problems as they arose but there were other things he had to do, including setting up the dies throughout the factory.
21 In about August 1984, the plaintiff resigned from Ford to run his own delicatessen business in partnership. The plaintiff explained that most of the customers at the delicatessen spoke his language. The plaintiff was able to speak with his Australian counterparts whilst working for the first defendant. He can speak English but his writing is poor.
22 The business was not successful, so in April 1986, the plaintiff returned to Ford, working as the die controller.
23 At the time of the incident, the plaintiff worked four hours’ overtime in the morning before his normal eight hour shift and sometimes he also worked four hours’ overtime thereafter.
24 On the said date, the plaintiff was required to shift a robot cage whilst working with a supervisor, Mr Fox. The plaintiff brought the forklift near to the cage and when they tried to push the cage, weighing about 200 kilograms, onto the forklift, the cage became stuck on some fixed rail lines. As the plaintiff tried to shove the cage, he felt immediate pain in his left shoulder (“the incident”).
25 The plaintiff told those working with him that he felt pain. He then went to see the company doctor, Dr Schon, who was at the factory.
26 Although the plaintiff had had to do heavy work over many years which put strain on his shoulders, he did not recall feeling any symptoms of note in his left shoulder prior to the incident.
27 Dr Schon organised some physiotherapy and later tried giving the plaintiff an injection. Dr Schon also arranged an MRI scan and other investigations and eventually referred the plaintiff to a specialist, Mr Owen.
28 Mr Owen suggested an operation, and on 15 February 2005, the plaintiff underwent surgery on his shoulder. However, the plaintiff continued to have problems, so Mr Owen performed a further surgical procedure in November 2005.
29 Since the incident, Dr Schon has been the plaintiff’s main treating general practitioner. The plaintiff has also had some treatment from various doctors in Mill Park.
30 In cross-examination, the plaintiff agreed he saw Dr Schon on 6 August 2008 with a complaint of exacerbation of pain at night. The plaintiff denied his night pain had ever gone away as he had always had the pain.
Work after the Incident
31 To the best of the plaintiff’s recollection he substantially stayed at work until the operations, although he had lighter duties of varying hours.
32 In examination-in-chief, the plaintiff confirmed his new job after the incident was as a trouble shooter; a different job to his pre incident tasks. It involved fixing things that had gone wrong with the dies. He was restricted to lifting weights below five kilograms. There were also restrictions on lifting, pushing and pulling. There was an arrangement with the first defendant if there was anything required to be done in that regard, he could call on an assistant. The plaintiff confirmed this situation continued until he ceased work in December 2008.
33 In cross-examination, the plaintiff agreed that when he first returned to work after the incident, Dr Schon certified him unfit to lift or engage in exertion of force of more than 400 grams and the plaintiff was not allowed to lift with his left shoulder. The plaintiff was certified fit to work on that basis three hours a day.
34 When the plaintiff returned to work later in November, there was a seven kilogram lifting limit as Dr Schon had to change the lifting limit, otherwise the first defendant would not take the plaintiff back.
35 The plaintiff returned to work in January 2006 after the second operation.
36 The plaintiff confirmed that his job involved monitoring the cycle times on the machines and determining the cause of any problems and then rectifying them.
37 The plaintiff agreed he built up his working hours from three hours to four hours and then to six hours, from early 2006, working five days a week. The plaintiff was taking medication at that time, including Celebrex, Voltaren gel and sometimes he took Panamax. On occasions the plaintiff also took Panadeine Forte.
38 The plaintiff agreed the work was easy right up until the new managers took over in about 2006 or 2007. They told the plaintiff he had to take accrued annual leave.
39 The plaintiff had accrued six months leave as the former managers had not allowed workers to take their full annual leave and required them to work over Christmas when the factory closed down.
40 When the plaintiff was on leave in early 2007, he received a letter dated 7 February 2007 from the first defendant advising him that no alternate duties were available.
41 The plaintiff then attended Dr Schon and requested a full clearance for work. If the plaintiff had not done so, he would have been sacked and the first defendant would not let him in the factory. At that time the plaintiff was still having problems with his shoulder.
42 When the plaintiff returned to work, having obtained the clearance, he did the same job with a five kilogram lifting limit and he continued to require assistance with his duties.
43 In cross-examination, it was suggested to the plaintiff that he did not see Dr Schon between January 2006 and November 2006, and between February and September 2007. The plaintiff said he used to see Dr Schon all the time at the factory, at least weekly, and that he obtained certificates from him.
44 The certificates during that period were subsequently tendered.
45 The plaintiff saw Dr Schon at work because he had a lot of problems. Dr Schon prescribed medication and gave the plaintiff WorkCover certificates. If the plaintiff could not see Dr Schon, he saw the factory nurse.
46 The plaintiff agreed that he was able to do the restricted duties. If he did not receive assistance, he would not have been able to do the job; however, he agreed he did receive assistance.
47 The plaintiff did not agree the job was not heavy. The restricted duties were not hard however, the machine sometimes broke down and the bolts became loose and the plaintiff would not have been able to do that job without receiving assistance.
48 The plaintiff agreed that to an extent he was able to do the modified duties until December 2008. However, each time, with the new managers, they wanted more and more from the plaintiff and he was not able to obtain assistance from the workers so therefore he “had to do something heavy which made his pain worse.” As a result of that, the plaintiff found it very difficult and that is “why [he] finished and why [he] is here” (in Court).
49 The plaintiff’s job after January 2006 was not just walking around responding to alarms, although that was part of his duties. He was also responsible for eight machines that he had to set up and fix when required.
50 The plaintiff agreed that he was never required to do die changing after the incident and his job after the incident involved lighter duties.
51 The plaintiff deposed that he continued in modified duties. In 2008, there was a further incident at work when an engineer pressed the wrong button and crushed the plaintiff’s finger.
52 In cross-examination, the plaintiff denied that the injury to his fingers in 2008 resulted in neck pain, confirming his neck pain was a result of shoulder pain. When the plaintiff experiences a lot of pain in the shoulder, and stiffness, the pain goes up into his neck.
Redundancy and Plans Regarding Work
53 The plaintiff deposed that eventually in December 2008 he was offered a redundancy, which he accepted, because he could not cope any more.
54 In cross-examination, the plaintiff said that he was not sure when he was offered a redundancy but he thought it was in around 2007. He last worked in December 2008.
55 The plaintiff took the package because he had to – because the first defendant was pushing him to do more and more work. The workers who were supposed to assist the plaintiff were not able to do so all the time, as they had their own work to do. In fact, the plaintiff felt guilty and embarrassed to ask them to help him on a lot of occasions when they had their own work. Because of his increased pain, he had to take the redundancy.
56 The plaintiff denied a redundancy package was offered to him specifically. The first defendant offered an overall redundancy package to people who wanted to finish work and the plaintiff took it because of his problems.
57 The redundancy packages were first offered to people who had less service so the first defendant could pay them less. Therefore, whilst the plaintiff applied in December 2007, he did not actually receive the package until after December 2008.
58 The plaintiff denied he decided to take an early retirement when he was offered the package and said he took the package because he had to. He was not quite forced to take it, but the fact was he was not able to do the job and having to rely on others and calling them to do the job, he had to take the package. There was no alternative for him.
59 Had he not hurt his shoulder, the plaintiff would have worked as long as he was able to work. When asked about working until aged sixty five, he said he would have worked much more than that because he was healthy, otherwise he had no intention of stopping work. The plaintiff knows of employees of the first defendant who have worked into their seventies.
60 In cross-examination, the plaintiff said he was not aware that at the present time there were die controllers doing light jobs with the first defendant. He agreed he was a valued employee. He denied, had he not taken the redundancy, he could still be at work, because a lot of people who took the package were those who had assisted the plaintiff. He was sure the new workers would not have been able to assist him in the way the others did.
61 The plaintiff denied that he took the redundancy because he was happy to retire. In re-examination, the plaintiff said he “would have been one hundred times happier working than to stay in the condition that he is and not doing anything.”
62 Since taking the redundancy, the plaintiff has not worked or looked for work. He has not been offered any rehabilitation or retraining by WorkCover. He would not be able to do a job that was not made up for him.
63 The plaintiff has not sought any retraining or rehabilitation assistance. His English is not to the level where he could work in an office.
64 The plaintiff denied he had told Mr Brearley on medico-legal examination that he could work at bench height. He could do some dusting around that level, “but who is going to give him a job just to show up for work and not do much work?”.
65 The plaintiff denied asking Dr Schon in May 2010 to change his certificate. Dr Schon changed it himself. The only thing the plaintiff asked Dr Schon was if he could recommend some form of physical treatment, like physiotherapy, because the plaintiff was experiencing a lot of pain.
66 The plaintiff commenced receipt of weekly payments in November 2010. At present he is not in receipt of such payments or any DSS benefits.
Ongoing Shoulder Condition and effect on Activities
67 The plaintiff deposed in May 2010 that his shoulder was still painful in the front when he using it. He had restricted movement and could not really lift this left arm above shoulder level. He experienced constant pain of varying severity. His shoulder condition was aggravated if he used his arm too much and it was particularly bad in cold weather, when the pain also tended to go into his neck.
68 However, at that time the nights were the worst. The plaintiff could not sleep at all well. He could not find a comfortable position. He woke in the middle of the night and had to watch television until he was able to go to sleep. As a result, he woke up tired. He no longer shared the bed with his wife because his restlessness woke her. That situation made him lonely and sad.
69 The plaintiff was also restricted in the amount of assistance he could give his wife. He could not do some of the things he used to do and he became irritable because of tiredness. He also missed his job, and his days were long.
70 The plaintiff deposed he believed his continuing shoulder pain prevented him from doing a normal job for which he was trained and experienced. He had intended to work until the normal age of retirement, but believed, because of injury, he was permanently incapacitated for work.
71 In his more recent affidavit, the plaintiff deposed he continues to suffer the effects of his left shoulder injury. The pain is constantly present, however, it is of varying severity and intensity.
72 The plaintiff’s symptoms can increase when he performs activities that require him to use and strain his left shoulder and arm. The pain is particularly in his left shoulder and radiates at times up into his neck and down his left arm. When his arm is rested, his symptoms are less intense.
73 The plaintiff experiences flare ups of his symptoms from time to time and he suffers periods of very severe pain. When he does suffer those episodes, he will stop the activity he is performing and rest or take medication.
74 These episodes last up to a number of days at a time. At other times, the plaintiff is more active and he returns to complete tasks that he stopped when he feels better. He does what he can, when he can, for as long as he can.
75 The severity of the plaintiff’s symptoms is not predictable. The symptoms can be brought on at times by activity or at other times for no obvious reason. That makes the plaintiff unreliable, as he is not able to properly plan his day to day activities. Colder weather causes greater stiffness of his left upper limb.
76 At times, the plaintiff’s injury adversely affects his activities of daily living. The plaintiff can attend to showering and dressing himself. However, when experiencing an episode of severe pain, his wife or children assist him in these tasks.
77 The plaintiff can drive an automatic car. He goes shopping with his wife at times to get out of the house and he assists her as much as he can with the light shopping. He is restricted in the tasks he can perform around the house and at their Rosebud beach house.
78 The plaintiff’s wife now cleans the house inside and out and she mows the lawn. The plaintiff provides some assistance for short periods but if it was not for his injury, he would perform the heavier tasks of mowing the lawn and maintaining the garden, as he did before the incident.
79 Before the incident, the plaintiff was much more active. He serviced cars and did all outside labour and chores around the house. He no longer performs these activities because of his injury and the increase in symptoms that these activities produce and, accordingly, he no longer enjoys them.
80 The plaintiff’s injury affects his relationship with his wife and children. He becomes frustrated when the children or grandchildren are visiting and making noise, or if the grandchildren are misbehaving. The plaintiff is able to play with them in a limited way.
81 The plaintiff argues with his wife more frequently since the incident, as she now does most duties around the house and she is often tired. They also argue about money because of their limited finances as they can no longer afford the things they could when he was working. They now rely on their children for financial support.
82 The plaintiff and his wife do not sleep in the same bedroom as he is conscious of waking her, as he often wakes in pain during the night. On many nights, the plaintiff does not get a good night’s sleep as he is woken by pain in his left shoulder, making him tired the following day.
83 The plaintiff attends a community pension group, perhaps once a week.
84 The plaintiff does not have any plans to do anything, because he cannot do things. If he is better and needs to help his wife with something, he will and if he needs to, he will do a little bit of gardening.
85 The plaintiff remains incapacitated for work. He cannot constantly perform duties that require him to use his arms to push, pull, carry or lift objects. He is not able to perform duties above shoulder height and the power and strength in his left arm is limited
86 The plaintiff does not know what the future holds for him. He feels useless as he cannot provide for his family.
Current Medical Treatment
87 The plaintiff has enquired as to whether further surgical options are available to him but he was advised by Dr Elder that this is not the case.
88 The plaintiff continues under Dr Schon’s care. In the past, the plaintiff has been prescribed Voltaren cream, Celebrex, Mobic, Somac, Pepcidine, Panadeine Forte and Prisiq for depression. He is restricted with his pain relief options due to his gastric condition.
89 The plaintiff continues to take medication for pain relief.
90 The plaintiff’s symptoms were better managed and controlled with physiotherapy. However, since WorkCover ceased funding this treatment, the plaintiff is unable to pay for physiotherapy himself. The plaintiff continues to walk for exercise on most days for about fifteen to forty minutes, depending on his level of symptoms.
Lay Evidence
91 The plaintiff’s wife, Ica Gorgievski, swore an affidavit on 19 May 2010.
92 Mrs Gorgievski also used to work for the first defendant. She was aware of the plaintiff having a number of injuries prior to the incident but he was always able to go back to his normal duties.
93 She believes that the plaintiff’s shoulder injuries affect him seriously in terms of limiting his day to day to activities and his ability to return to work.
94 Mrs Gorgievski can see that the plaintiff suffers from pain in his shoulder and the side of his neck. There are a number of things that he cannot do for her which he used to be able to do.
95 She has noticed that the plaintiff cannot lift his left arm above shoulder level without experiencing increased pain and he is unable to perform activities for prolonged periods of time that place strain on his left shoulder and arm.
96 She also particularly notices that the plaintiff is very restless at night and he seems to be unable to get comfortable. As the plaintiff used to wake her with his discomfort and restlessness, eventually they had to move to separate beds, which both of them really regret.
97 Mrs Gorgievski believes that the plaintiff has changed considerably since the incident and since undergoing surgery that has not been successful. She further believes that the plaintiff’s resultant impairment of his left shoulder has caused him to continue to suffer serious consequences which continue to adversely affect him daily.
The Plaintiff’s Medical Evidence
98 Dr Schon most recently reported on 6 October 2010.
99 Dr Schon advised the plaintiff had reported acute left shoulder pain on 6 September 2004, at which time he was referred to Mr Owen, orthopaedic surgeon, who performed an MRI arthrogram on 18 November 2004.
100 As the plaintiff had not responded to physiotherapy, Dr Schon noted Mr Owen offered a surgical repair. An interarticular cortisone injection was trialled but provided only temporary relief. The plaintiff underwent an arthroscopic decompression of the left shoulder on 15 February 2005.
101 As the plaintiff was not improving with physiotherapy, repeat investigations were undertaken on 18 June 2005, which showed he now had a partial thickness left supraspinatus tendon tear. The plaintiff therefore returned to Mr Owen, who re-arthroscoped his left shoulder on 25 November 2007.
102 The plaintiff returned to work on 23 December 2005, initially three hours per day with restrictions of no elevation of the left arm above shoulder height.
103 Dr Schon gradually increased the plaintiff’s hours working as a die controller to six hours a day whilst the plaintiff continued physiotherapy. Dr Schon noted the plaintiff achieved full time alternative duties and remained on them until the end of 2006.
104 On 19 February 2007, the plaintiff requested a clearance for his shoulder as his employer was not providing any jobs for people on modified duties. Dr Schon noted this was despite the fact the plaintiff could not sleep on his left side, still could not abduct the left arm above 120 degrees, and still had positive impingement signs.
105 Dr Schon gave the plaintiff unlimited WorkCover release certificates to continue die controlling but not die changing. The plaintiff continued to receive medication, including Celebrex, Voltaren gel and Di-Gesic throughout 2007 and 2008.
106 On 6 August 2008, the plaintiff presented with an exacerbation. The night pain which had resolved had returned, and again he had signs of positive impingement of the left shoulder.
107 The plaintiff attended Dr Schon on 18 August 2008, reporting an injury to his fingers.
108 Dr Schon ordered a resumption of physiotherapy for the plaintiff’s neck in December 2009.
109 Dr Schon noted the plaintiff took a redundancy in February 2009, but he continued to give the plaintiff “treatment only” attendance certificates so he could access physiotherapy. Despite that treatment, the plaintiff continued to experience right? sided neck pain and despite ceasing work ten months later, he could not abduct his left arm beyond ninety degrees.
110 On 17 March 2010, the plaintiff attended in a tearful state, admitting to middle insomnia and concerned he could not perform gardening due to his ongoing neck and left shoulder difficulties. At that time, Dr Schon diagnosed depression.
111 Dr Schon noted that from 21 May 2010, on advice from his solicitors, the plaintiff requested a capacity certificate which indicated that from a combination of his neck, shoulder and depression, he was unfit for any duties.
112 Dr Schon concluded the plaintiff had sustained an acceleration of cervical spondylosis and a chronic left rotator cuff syndrome as a result of the incident.
113 Dr Schon reported that he considered those injuries were permanent as they had not responded, in the case of the neck, to a year of conservative treatment, and in the case of the shoulder, two arthroscopies and repeated post-operative physical rehabilitation.
114 Dr Schon thought the plaintiff was not fit to perform any of the jobs which were available with his pre injury employer and he was not able to perform any jobs for which he had experience and training. Dr Schon considered the plaintiff may be suitable for vocational retraining, but within the limits of having restrictions on his left arm not to push, pull or lift more than two kilograms, or to elevate his left arm above shoulder height.
115 Dr Schon commented he was unsure as to how the plaintiff’s education level, command of English and depression would affect his ability to undertake retraining. He did not believe the plaintiff was computer literate and this would limit his options somewhat. He expected the plaintiff’s current restrictions to be permanent.
116 A number of certificates from Dr Schon were tendered. The plaintiff worked four hours per day from 31 January 2006, increasing to six hours a day from 13 February 2006, on restrictions of no elevating the left arm above the shoulder; not to lift, push or pull more than two kilograms with the left hand (keep elbow close to body) repetitively.
117 On 19 February 2007, when Dr Schon saw the plaintiff, the plaintiff requested clearance for the left shoulder, with Dr Schon noting the plaintiff still could not sleep on it. Abduction was to 120 degrees and there was pain on impingement. A letter was created giving a certificate for “die controlling – not changing – only”.
118 On 6 August 2008, Dr Schon noted the plaintiff complained of left shoulder night pain returning and that the plaintiff was scared of putting in a WorkCover certificate.
Medico-Legal Evidence
119 Mr Kevin King, orthopaedic surgeon, examined the plaintiff in February 2011.
120 The plaintiff told him that from the time of the incident he had been apparently disabled by constant left shoulder pain and pain in the side of his neck.
121 The plaintiff struggled on at work with increasing difficulty and was then seen by Mr Owen, who operated, but without any improvement. The plaintiff returned to work after six weeks and continued on light duties and in view of his failure to improve, Mr Owen recommended further surgery, which the plaintiff underwent, following which there was again no improvement.
122 The plaintiff struggled on at work with increasing difficulty and eventually he was apparently forced to take six months’ accrued sick leave and was then, Mr King gathered, forced to take a redundancy package in December 2008.
123 Mr King noted the plaintiff’s symptoms of left shoulder and neck pain had persisted up to the present and the plaintiff remained under Dr Schon’s care.
124 On examination by Mr King, the plaintiff mentioned that his main concern was constant aching pain and stiffness in the left shoulder girdle, and a lesser problem was constant aching and stiffness in the neck.
125 The plaintiff had stiff, painful, classical signs of severe rotator cuff injury and there was mild generalised muscle wasting. Movements of his left shoulder were limited by pain and spasm.
126 Mr King’s overall impression was of an earnest, anxious but genuine and seemingly well motivated man, who had worked for the same factory on the same job without trouble for many years.
127 Mr King considered the plaintiff was now chronically disabled to a moderately severe degree by chronic neck and left shoulder pain and that his condition had stabilised. He thought it must be assumed that the plaintiff was now permanently unfit to return to any sort of work of the type he had done throughout his adult life. Mr King considered the plaintiff was certainly unfit to go back to work as a die controller.
128 From a practical point of view, Mr King thought the plaintiff had no current work capacity and retraining was not appropriate or a feasible proposition at the plaintiff’s age. Mr King thought the plaintiff’s restrictions in terms of work, domestic and recreational activities were permanent.
129 Dr Castle, occupational physician, examined the plaintiff in February 2011.
130 The plaintiff told him there was no improvement after either operation. He was put back on full time duties and found he could not do them.
131 On examination of the left shoulder, there was suprascapular spasm and some wasting. Muscle power was normal. There was some restriction in the range of movement.
132 Dr Castle considered the plaintiff had a left supraspinatus tear and subacromial bursitis which were both moderately severe. He thought the plaintiff was incapacitated indefinitely for all of his pre injury work as a die setter, which Dr Castle noted was heavy physical work requiring the use of both upper limbs.
133 Dr Castle considered the plaintiff had no current work capacity due to his injury. He noted the plaintiff had restricted and painful movement of his left shoulder. He noted the plaintiff always worked as a manual labourer and was now aged sixty four and, considering those factors, Dr Castle thought the plaintiff had no capacity for work.
134 Dr Castle further noted English was not the plaintiff’s native language, although his spoken English was reasonable. The plaintiff’s ability to read and write English was poor.
135 Considering all those factors, he did not consider the plaintiff had any capacity for suitable employment in the open labour market. Further, he did not consider the plaintiff was suitable to undertake any retraining because of his age, limited education and limited English skills.
136 Dr Castle thought the consequences of the work injury were likely to continue for and throughout the foreseeable future.
137 Mr Brearley examined the plaintiff on 26 May 2011.
138 The plaintiff told him that he returned to work after the operations on modified duties and reduced hours. The plaintiff reported having ongoing serious problems with his work and finally he was not able to continue and he accepted redundancy in December 2008.
139 On examination, there was wasting of the musculature of the left shoulder. There was marked limitation of shoulder joint movements.
140 Mr Brearley diagnosed tears of the superior labrum and supraspinatus portion of the rotator cuff with chronic subacromial bursitis. He also diagnosed aggravation of pre-existing degenerative changes in the cervical spine.
141 In Mr Brearley’s view, the left shoulder injury and, to a lesser extent, the neck injury, caused the plaintiff to be permanently incapacitated for his pre-injury work and he had no current work capacity.
142 Mr Brearley considered there was no employment which would be suitable for the plaintiff when his age, employment history, language difficulties and his ongoing injury and disability were taken into account.
143 If per chance the plaintiff was considered capable of doing some suitable employment, Mr Brearley thought he would only be fit to work part time, two hours a day, three days a week. In his view, the plaintiff would require time off work without notice and he would need rest breaks of ten minutes every hour. He would be unreliable and unpunctual because of his pain.
144 Further, Mr Brearley considered the plaintiff was not fit to undertake any retraining because of his age and his ongoing chronic pain. He thought the consequences of the work injury were permanent and the prognosis was not good.
Vocational Evidence
145 Bill Radley, psychologist and vocational assessment specialist, provided a report on 29 June 2011.
146 Based on the type and level of post injury physical impairment described in the medical reports, Mr Radley’s employment assessment was the plaintiff had no work capacity to return to his pre injury employment or to similar employment in any capacity, and was not likely to have any capacity for such employment in the foreseeable future and he was effectively unemployable.
147 Further, Mr Radley considered the plaintiff had no capacity for any type of occupational retraining.
Offer of Suitable Employment
148 An offer of suitable employment was made to the plaintiff in November 2004. It provided for duties in die controlling in the mould shop, checking moulding machines and resetting machines. The plaintiff may also be required to clean out purgers and remove stuck parts. This program was to run five days a week for eight hours a day from 15 November 2004.
149 It was noted then the current medical restrictions were not to work with left arm above shoulder height, no lifting, pushing, pulling above seven kilograms, no die changes and seeking assistance for any lifting greater than seven kilograms.
150 It was noted that there was no exertion of force and repetitive and sustained postures required for the job. However, they were not required continually for more than thirty minutes at a time, as after each shot, the die setter would make the appropriate adjustments. It was noted there may be occasions when these physical demands were required for more than two hours over a whole shift.
151 The first defendant wrote to the plaintiff on 7 February 2007 advising that following the recent reductions in production volume, there had been a review of labour levels in all areas and on all shifts to determine the numbers required to run.
152 Following this review, the first defendant had closed nightshift and had revised the number of employees required to run all areas on both dayshift and afternoon shift.
153 The first defendant advised it had therefore determined that it would be unable in many cases to continue to provide employees with suitable alternate duties in which the inherent requirements comply with medical restrictions.
154 The plaintiff was advised the first defendant would, as a result, no longer be able to offer him alternative duties work. The first defendant welcomed the plaintiff to notify it if there was any change in his medical condition.
The Defendants’ Medical Evidence
155 The defendants replied upon a report from Dr Schon dated 16 November 2004.
156 In that report, Dr Schon advised he had been treating the plaintiff for left sided cervical pain and left rotator tendinitis since 16 September 2004, treating him both at the Venture Medical Centre and the Northern Industrial Clinic.
157 Since a cortisone injection on 4 November 2004, followed by two days off work, Dr Schon advised the plaintiff’s range of movement improved. Initially the plaintiff was restricted to exertion of force of no more than 400 grams and no elevation of the left shoulder and a graduated return to work of three hours per shift.
158 Dr Schon noted those restrictions would have prevented the plaintiff from being able to carry out his normal duties and alternative duties were offered.
159 Dr Schon advised he had reviewed the return to work plan offered by the first defendant dated 9 November 2004 and considered that it was appropriate.
160 Dr Schon advised the plaintiff consulted him again on 10 November 2004 when he reported further improvement, and Dr Schon relaxed the plaintiff’s restrictions accordingly.
161 Based on those updated restrictions, Dr Schon believed the plaintiff was capable of performing his normal duties as a die controller, provided that he requested assistance with any job requiring exertion of force of more than seven kilograms. Dr Schon also advised he had viewed the second return to work plan dated 11 November 2004 which he believed was entirely appropriate.
162 The plaintiff was examined by Mr Shannon on 18 April 2011. He told Mr Shannon he returned to work on light duties after the shoulder operations but his shoulder pain persisted. He continued working on light duties until 2008, although he was effectively doing his normal job, but doing any lifting with his right hand.
163 Mr Shannon noted that in 2008 the plaintiff went on long service leave and was then offered a voluntary redundancy. Because he was still in pain, the plaintiff accepted the redundancy.
164 On examination of the left shoulder, the plaintiff had scars from arthroscopic surgery and significant restriction of all movements.
165 Mr Shannon noted the documented injury sustained by the plaintiff was an injury to the left shoulder at work which resulted in an aggravation of rotator cuff degeneration and possibly a rotator cuff tear. Thereafter, the plaintiff had undergone two arthroscopic procedures with only modest improvement in symptoms.
166 Mr Shannon noted the significant ongoing problem was the plaintiff’s left shoulder where he had moderate restriction of movement, which probably represented in part some degree of adhesive capsulitis following surgery.
167 In Mr Shannon’s view, the left shoulder condition of itself would limit the plaintiff in the performance of work involving strenuous repetitive use of the left arm, heavy lifting or work above shoulder level. He noted it apparently did not preclude the plaintiff from performing his duties as a trouble shooter, because he apparently was not required to perform heavy physical work.
168 In Mr Shannon’s view, the plaintiff nevertheless had restrictions and would have difficulty in obtaining employment on the open market at the age of sixty four and having been out of the workforce for nearly three years. However, purely from the point of view of his injury, Mr Shannon thought the plaintiff was not totally incapacitated.
169 Mr Shannon considered the plaintiff was able to perform pre-injury duties with modifications until the time he accepted a voluntary redundancy. He believed the plaintiff could still perform those duties, noting he then had a current work capacity.
170 In Mr Shannon’s view, the plaintiff was theoretically capable of resuming his previously modified pre injury duties. Whilst the plaintiff had a current work capacity, Mr Shannon thought he would probably be regarded as unemployable on the open market, noting his age and his restrictions. In Mr Shannon’s view, the plaintiff had a permanent partial incapacity.
Offer of Suitable Employment
171 The defendants relied upon an offer of suitable employment dated 24 January 2006.
172 That offer set out the current medical restrictions were no elevation of the left arm above shoulder, no lifting, pushing or pulling more than two kilograms with the left hand (keep left elbow close to body repetitively).
173 The duties were described as die controlling in mould shop – modified die controlling duties and monitoring cycle times on machines to determine cause of problems using visual display monitors and controls to perform this function.
174 That return to work program was to commence on 23 January 2006 with three hours work per day, three days a week. The following week the hours were to be increased to four hours per day, five days a week and the following week, six hours per day, five days per week.
Lay Evidence
175 The defendants relied upon an affidavit sworn by Christopher Bleakley on 7 September 2011. Mr Bleakley was employed as a paymaster with the first defendant between 1995 and 2001.
176 He deposed the plaintiff was employed as a die controller with the first defendant and its predecessor, Ford Australia, from around 1979 until around December 2008.
177 In around December 2007, a number of first defendant’s employees applied for a voluntary redundancy package. Letters were sent to those employees whose applications were accepted.
178 The plaintiff was one of the employees who applied for the voluntary redundancy package and his application was one of approximately fifty accepted.
179 If the plaintiff had not applied for the package in December 2008, Mr Bleakley believed the first defendant would have continued to employ him as a die controller until his retirement.
180 Mr Bleakley deposed that the first defendant continues to employ die controllers and no new roles were created after the December 2008 redundancies. At the time of his redundancy, the plaintiff was working normal duties with the first named defendant.
Overview
181 As conceded by the defendants, the plaintiff has a serious injury in terms of pain and suffering consequences.
182 I accept that since the incident the plaintiff has had ongoing left shoulder pain of varying intensity, despite two operations. He continues to require medication for pain relief. Further, movement of his left shoulder continues to be restricted.
183 The plaintiff has had ongoing difficulty sleeping due to his shoulder pain.
184 Significantly the plaintiff has been unable to continue with the physical tasks required of a die controller- tasks performed by him over many years before the incident.
185 Performance of household and domestic tasks also continues to be restricted by his left shoulder condition.
186 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). 187 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. 188 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
189 “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.
190 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.
191 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: See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 70.
192 I am therefore required to determine a “without injury” earnings figure. Submissions were made by counsel in this respect.
193 The plaintiff’s gross earnings in the three years before and after the injury were as follows:
Financial Year Gross Earnings 2001-2002 $55,797 2002-2003 $70,719 2003-2004 $77,926 2004-2005 $69,789 2005-2006 $66,980 2006-2007 $70,104
194 For the purposes of s.134AB(38)(e)(i), counsel for the defendants submitted that the amount which most fairly reflects the plaintiff’s “without injury” earnings was $68,585 (a median of the six year period) or, alternatively, $74,015, the average of the two highest figures in the pre and post injury periods. Sixty per cent of $68,585, is $41,151. Sixty per cent of $74,015 is $44,409.
195 It was submitted the plaintiff’s “after injury” earnings, being the amount the plaintiff is capable of earning in suitable employment as at 4 October 2011, is $68,957 (being the median of the 2005 to 2007 financial years).
196 Counsel for the defendants submitted that if the plaintiff had not accepted a voluntary redundancy, he would still be employed by the first defendant and capable of earning $68,957.
197 Counsel for the plaintiff simply put the figure of $77,926, being the plaintiff’s gross earnings in the financial year 2003-4, the year before the incident.
198 The primary submission on behalf of the defendants was that the plaintiff has a capacity to work and chose to take a redundancy for reasons unrelated to his shoulder condition. He therefore has the capacity to earn at his pre- redundancy level and as such, he has not suffered the requisite loss.
199 Reliance was placed on Mr Bleakley’s affidavit in which he deposed the first defendant continues to employ die controllers. Mr Bleakley believed that the plaintiff would have continued to be employed by the first defendant in that role had he not taken the package, at which time the plaintiff was working normal duties.
200 Counsel for the defendants submitted that whilst the plaintiff has had two unsuccessful operations and continues to require medication, that was his situation in January 2006, when he returned to work on the duties set out in the offer of suitable employment at that time.
201 It was submitted that from that time until he took a package in December 2008, the plaintiff was able to build up his hours from three hours a day to six hours a day in those duties. Even after the medical clearance in February 2007, the plaintiff continued to perform the same duties.
202 It was submitted that the plaintiff carried out these duties and had assistance when required until taking the package. There was no evidence during that time that the plaintiff required any time off work or that he struggled to do his duties or that he required increasing medication – problems one would have expected the plaintiff to experience if he was having difficulty with his duties.
203 It was submitted that the plaintiff coped with his duties and he chose to take a voluntary redundancy package for reasons unrelated to his injury. Further, there was no adequate explanation for the change in Dr Schon’s certification of the plaintiff as fit for the duties undertaken until redundancy and the certification that the plaintiff was totally unfit in May 2010.
204 Finally, counsel for the defendants submitted that those medico-legal examiners who are supportive of the plaintiff’s claim did not have an accurate history of the circumstances in which he returned to work and then took the redundancy.
205 Therefore, it was submitted the plaintiff had not suffered the requisite economic loss as he had chosen to take a redundancy when he still had a capacity to work almost full time hours earning in excess of $70,000 per year.
206 Counsel for the plaintiff submitted that the job described in the January 2006 offer of suitable employment was so restricted in its duties that it was not a real job but one made up for the plaintiff because he was injured.
207 It was submitted the job was not a real one as, despite working as a die controller, the plaintiff was not undertaking any setting work which was part of his duties before the incident, further details of which were set out in the offer of suitable employment in November 2004 .
208 Further, the two kilogram lifting, pushing and pulling limit with the left hand and keeping the left elbow close to the body repetitively effectively meant the plaintiff could do very little hands on work.
209 It was submitted this was a job tailored to fit in with the plaintiff’s restrictions and once the new management took over and pushed the plaintiff, not providing him with the necessary assistance, he could no longer cope, even with these modified duties.
210 Reliance was also placed on the first defendant’s letter of 7 February 2007 in which it advised it would be unable to provide the plaintiff with suitable alternate duties in which the inherent requirements comply with medical restrictions.
211 Whilst it is the plaintiff’s capacity for employment at the date of hearing that is the relevant consideration, I accept that the plaintiff had ongoing difficulties even with the lightest work and he ultimately took a redundancy because he could not cope with his work without the necessary assistance being provided.
212 The plaintiff’s evidence in this regard was uncontradicted.
213 Mr Bleakley was clearly incorrect when he deposed the plaintiff was performing normal duties at the time he took the redundancy package.
214 If not for his left shoulder condition, I accept that the plaintiff, who had worked in effectively the same position since 1979, would have continued working beyond the age of sixty five as was the case with other employees of the first defendant.
215 The consensus of medical opinion is that the plaintiff does not have a capacity for suitable employment as at the date of hearing and into the foreseeable future.
216 Dr Castle, occupational physician, thought the plaintiff had no current work capacity due to his shoulder injury, taking into account the plaintiff had always worked as a manual labourer and he was now aged sixty four, having been unable to cope with light duties.
217 Mr King and Mr Brearley, although given a slightly different history, shared this view following their recent examinations.
218 Mr Brearley thought the left shoulder injury caused the plaintiff to be permanently incapacitated for his pre-injury work and that the plaintiff had no current work capacity. He considered there was no employment which would be suitable for the plaintiff when his age, employment history, language difficulties and his ongoing injury and disability were taken into account.
219 If per chance the plaintiff was considered capable of doing some suitable employment, Mr Brearley thought he would only be fit to work part time, two hours a day, three days a week. In his view, the plaintiff would require time off work without notice and he would need rest breaks of ten minutes every hour. Further he considered the plaintiff would be unreliable and unpunctual because of his pain.
220 Mr King thought the plaintiff was now chronically disabled to a moderately severe degree and that his condition had stabilised. He thought it must be assumed that the plaintiff was now permanently unfit to return to any sort of work of the type he had done throughout his adult life and Mr King considered the plaintiff was certainly unfit to go back to work as a die controller. From a practical point of view, he thought the plaintiff had no current work capacity.
221 On examination, Mr Shannon described the plaintiff as having a significant restriction of shoulder movement and then, without explanation, described such restriction as moderate.
222 Whilst Mr Shannon thought the plaintiff was fit for his old job, he considered that at the present time, that capacity was theoretical. He thought the plaintiff would probably be regarded as unemployable on the open market, noting his age and his restrictions. In Mr Shannon’s view, the plaintiff had a permanent partial incapacity.
223 Accepting that the plaintiff does not have the capacity for even the lightest duties, I am satisfied that he has a present loss of earning capacity of forty per cent. Clearly he does not have the capacity to earn sixty per cent of the figures relied upon by either party.
224 In my view this loss is permanent given the duration of the plaintiff’s symptoms.
225 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g) of the Act.
226 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g) of the Act.
227 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity, pain and suffering having been conceded by the defendants.
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