Goulter v Calvary Home Care Services Ltd
[2013] VCC 170
•7 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00979
| YVONNE GOULTER | Plaintiff |
| v | |
| CALVARY HOME CARE SERVICES LTD | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 January 2013 | |
DATE OF JUDGMENT: | 7 February 2013 | |
CASE MAY BE CITED AS: | Goulter v Calvary Home Care Services Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 170 | |
REASONS FOR JUDGMENT
---
SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to the right shoulder – pain and suffering – loss of earning capacity
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Company Pty Ltd (2007) VSCA 267; Hayhill v Hodge [2006] VSCA 194.
JUDGMENT – Leave granted to bring proceedings for damages for pain and suffering. Application in relation to loss of earning capacity dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis | Slater & Gordon |
| For the Defendant | Mr N Chamings | Thomsons Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant in October-November 2006.
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the right shoulder.
5 The plaintiff relied upon three affidavits and gave viva voce evidence. She was cross examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
6 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.
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 By ss(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”.
10 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.
11 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
13 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
14 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
15 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1]and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
Background
16 The plaintiff was born in June 1951. She is now aged sixty one and is in receipt of the Newstart Allowance.
17 The plaintiff left high school in Year 10 and married at the age of sixteen. She is divorced with five children.
18 The plaintiff completed a Certificate II in Information Technology in 1998 and obtained a Certificate III in Health (Patient Service Attendant) in 2000.
19 In December 2010, the plaintiff moved in with her niece as she was not able to pay rent and look after herself. Her niece then moved to Wonthaggi and the plaintiff joined her. In the latter part of 2011, the plaintiff returned to Melbourne and now lives with another niece.
The Plaintiff’s employment
20 In her early working days, the plaintiff was employed in cleaning and cooking in the hotel industry and later at a leagues club in Sydney. She also ran a fruit and vegetable shop.
21 The plaintiff then performed full time clerical work for Dominie School Centre (“Dominie”), an education supplies company, and after two years was promoted to warehouse manager, a job she held for five years.
22 The plaintiff left that job for family reasons and then worked with Hilton Hosiery (“Hilton”) as a picker/packer for two to three years.
23 In 1996, the plaintiff was diagnosed with breast cancer, which was successfully treated.
24 The plaintiff returned to Hilton, where she worked for a few years in an office role which she did not like as it involved mainly data entry.
25 The plaintiff then returned to Dominie in 2001 working for a year in Victoria as a sales representative until offered a job in Sydney with that company, where she worked for a further eighteen months. She left that position in 2003 as she did not like having to put off staff.
26 The plaintiff’s job at Dominie involved counter sales and assisting with the running of the mail order department. She totally enjoyed duties involving liaising with sales representatives and negotiating pricing.
27 The plaintiff then moved to Warrnambool and started work as a personal carer. She commenced employment with the defendant in this capacity on a casual basis on 26 November 2005.
28 On average, the plaintiff worked 24.3 hours per week. Her duties involved caring for clients at their home, including a seven year old disabled child who was of comparable height and weight to the plaintiff (“the child”). At times, the plaintiff cared for the child for a twelve hour shift.
29 From July 2005, the plaintiff worked as a waitress at an Ampol service station, two to three five hours shifts per week. In re examination, the plaintiff described this as a very quiet place and that she could do a whole shift without a customer.
30 In about October 2006, the plaintiff began developing pain in her right shoulder (“the injury”), which she noticed when assisting the child. The plaintiff then thought the injury would recover.
31 The plaintiff ceased work in November 2006, as she was unable to perform her work due to the injury and she resigned from the defendant’s employ in January 2007. The defendant was keen for the plaintiff to stay on the books to look after the child but there was no light work available.
32 The plaintiff denied in cross examination that she resigned because some of the defendant’s clients were receiving more attention than others.
33 In November 2006, the plaintiff commenced part time work at a Safeway delicatessen working 20 hours per week. She remained in that job until February 2007. In about March 2007, the plaintiff resigned from her job at Ampol due to weakness in her right arm, causing her to break and drop things at work.
34 The plaintiff did not report the injury until lodging a claim form on 12 February 2007, in which it was set out on her behalf that the date of injury or condition was gradual, in October 2006 and that she first noticed the condition about that date, ceasing work the following month. Further, the form set out the plaintiff ceased work as a result of the condition because of pain and she thought changing jobs would help, but it did not.
35 By letter dated 23 March 2007, Allianz Insurance advised the plaintiff it accepted she would not be fit for work and was entitled to weekly payments of compensation in relation to an injury suffered on 1 October 2006.
36 Medical treatment, including shoulder surgery undertaken in early 2012, was paid for by the defendant.
The Plaintiff’s medical treatment
37 The plaintiff first consulted her general practitioner, Dr Elias, at Broadmeadows Family Health in relation to the shoulder injury on 25 January 2007. The plaintiff was sent for an ultrasound which revealed a right subscapular tear and bursal effusion.
38 Dr Elias prescribed non-steroidal anti-inflammatories, referred the plaintiff for physiotherapy to Mr Takyar and certified her unfit for work for all duties for two weeks. Dr Elias subsequently referred the plaintiff to Mr Goldwasser and arranged further investigations.
39 Dr Elias last reported in April 2008. He noted the plaintiff was then seeing Dr Harris in Greenvale who had prescribed Lyrica and Oxycontin. Dr Elias noted the plaintiff reported her pain was pretty much under control but she could not do any physical work.
40 In cross examination, the plaintiff agreed there was some improvement with physiotherapy a later injection but her shoulder problem did not resolve and she continued to go through an awful amount of pain when she last saw Dr Elias although the doctor’s notes suggested otherwise.
41 The plaintiff first saw Mr Goldwasser, orthopaedic surgeon, on 9 May 2007. He sent her for x-rays and an ultra sound guided injection which was carried out on 16 May. In cross examination, the plaintiff said she did not get any relief from that procedure.
42 Mr Goldwasser considered the plaintiff’s pain may be in part due to rotator cuff pathology and also considered there was a significant component of pain referred from the neck. He advised conservative treatment, including physiotherapy.
43 Mr Goldwasser thought the plaintiff probably suffered an aggravation of a pre-existing rotator cuff degenerative condition consistent with her work activities. He noted an improvement in shoulder pain with the injection. However, the plaintiff complained of some residual pain in the back and side of her neck which made him suspect the neck may be a significant contributor to her pain. Thus, he thought the prognosis was uncertain and advised conservative treatment to the plaintiff’s shoulder and neck. He thought the plaintiff had not stabilised as at May 2007, noting it was not unusual for symptoms to be troublesome for a prolonged period of time, at least many months.
44 Suresh Takyar, physiotherapist, advised Dr Elias in April 2007 that the plaintiff reported about 40 per cent relief since the start of treatment in February and movements of the right shoulder had improved though overhead activity caused pain. Mr Takyar suggested there be a referral to an orthopaedic surgeon.
45 After nineteen visits, at the last consultation in June 2007, Mr Takyar thought the plaintiff was unfit for pre-injury duties with poor prospects of return to work in labour type work.
46 The plaintiff commenced osteopathic treatment with Dr Lana Peters in Greenvale in July 2007. As of March 2008, Dr Peters thought the shoulder problem, not having been addressed properly initially, had become chronic in nature. Due to the additional degenerative changes in the shoulder joint, neck and cervical spine, she believed the condition would need ongoing treatment.
47 The plaintiff saw Dr Harris, general practitioner, in Greenvale on 19 June 2007. He thought conservative medical treatment was most likely ongoing care and surgery was not indicated, noting Mr Goldwasser did not recommend shoulder surgery. Dr Harris thought gradual deterioration was likely.
48 In his report of July 2009, Dr Harris noted he thought the plaintiff presented with symptoms consistent with chronic pain syndrome and secondary depression. He then did not consider the plaintiff had no work capacity.
49 Dr Harris considered the plaintiff’s symptoms would deteriorate over time if she had financial stress and could not find work or societal activities to provide meaning. He thought some of the symptoms were secondary to her social situation which was the result of the reported injury and her becoming disabled.
50 In July 2009, Dr Harris discussed a WorkStreams report with the plaintiff which identified possible work activities. The plaintiff agreed she could attempt part-time employment if a suitable position was available.
51 Dr Harris’ last report was faxed on 14 August 2012. He set out his initial diagnosis was capsulitis of the right shoulder and his current diagnosis was rotator cuff degenerative change, cervical disc degenerative change at C6-7, chronic pain syndrome and depression.
52 Dr Harris thought the plaintiff’s functional capacity was unlikely to improve and that she could not realistically be considered for pre-injury work. He noted the plaintiff had not worked for long periods so her ability to work would be limited and it would be difficult to re-enter the workforce.
53 Dr Harris considered the plaintiff’s physical disabilities would restrict her to office type duties. He also noted her depression and psycho-social factors were a major limiting factor, but with upskilling, some work capacity was possible. He noted depression and psychosocial factors had been significant, with the plaintiff having had surgery right nephrectomy for a chromophobe renal cell carcinoma in June 2010.
54 In cross examination, the plaintiff explained that she had no further treatment in relation to her kidneys following this procedure.
55 In late 2012, the plaintiff experienced problems with her left knee and had been referred to an orthopaedic surgeon but did not make an appointment because her symptoms improved and she was not having any treatment for her knee.
56 Currently, Dr Harris considered the plaintiff’s medical conditions were stable and surgery was not contemplated. He thought normal degenerative changes would be expected.
57 In Dr Harris’s view, the plaintiff experienced considerable pain and suffering, was distressed about her limited future and suffered anxiety about her financial situation. He noted she currently lived with a relative but was independent. However, she had a poor lifestyle.
58 The plaintiff moved to Wonthaggi in January 2011 and commenced consulting Dr Patil at South Gippsland (“South Gippsland”) Family Medicine on 12 April 2011.
59 In his report of September 2011, Dr Patil noted the plaintiff was diagnosed with right shoulder supraspinatus tendinopathy and tear. He then thought the plaintiff could do light duties such as telecommunications and office work. Restrictions included not lifting or moving heavy objects or performing duties which aggravate her pain. He considered the plaintiff should try light duties involving minimal physical activity as set out in the NES report. He then thought regular physiotherapy was required until further orthopaedic specialist assessment.
60 Dr Wai from South Gippsland reported in December 2011.
61 Dr Wai thought it difficult to predict the plaintiff’s prognosis due to the prolonged nature of her injury, but thought her condition had stabilised. He noted the plaintiff was referred to Mr Owen and MRI scans revealed significant supraspinatus tendinopathy with tear and spur on the outer end of the acromion.
62 Dr Wai noted the plaintiff was then awaiting approval for surgery. He thought she was not fit for pre-injury work and might be able to work on light duties with restrictions of not lifting more than 5 kilograms and not lifting above the shoulder with the right arm. He considered the plaintiff should be able to return to work on alternative duties some time in the future.
63 Dr Wai noted the chronic nature of the plaintiff’s injury and the fact she had not improved with conservative treatment had caused significant anxiety and depression. He noted she had limited shoulder movement which would affect her daily activities. He thought there would be possible muscle wasting due to restricted active movement of the right arm.
64 The plaintiff first consulted orthopaedic surgeon, Mr George Owen, in October 2011. He thought the MRI scan confirmed significant supraspinatus tendinopathy with a tear, noting the plaintiff had a spur on the outer end of the acromion which he thought was certainly going to be contributing to this.
65 Noting the length of time the plaintiff had been off work and the failure of conservative treatment, Mr Owen thought it very reasonable she consider an arthroscopic debridement of the subacromial space and acromioplasty. He advised he would not necessarily rush onto a rotator cuff repair because of the increased morbidity and mortality. He noted that at sixty years of age the plaintiff was not really looking forward or planning to go back to work and thus surgery was really just to get the plaintiff a better range of movement and less pain.
66 The plaintiff ultimately underwent an arthroscopic subacromial decompression bursectomy and acromioplasty (“the surgery”) on 18 January 2012. The operative findings were an attritional rotator cuff tear of the right shoulder with subacromial bursitis and some features of impingement of rotator cuff and acromion.
67 The immediate post operative course was satisfactory. The plaintiff failed to keep any further subsequent appointments with Mr Owen until she next saw him in April 2012.
68 Mr Owen then noted the plaintiff was somewhat depressed, which she admitted. She was still on 100 milligrams of Tramal and Lyrica and having ongoing physiotherapy.
69 Mr Owen noted the plaintiff admitted to being a little better in terms of range of movement and function and seemed to exhibit a good 160 degrees of forward flexion. Abduction was a little less and external and internal rotation were still limited.
70 Mr Owen noted although the physiotherapy report was somewhat optimistic, in light of the six year history of chronic shoulder pain, it was going to be difficult to resolve this situation with surgery and in the time frame from when it was done. He noted the plaintiff had not had the rotator cuff repair.
71 Mr Owen painted a positive picture to the plaintiff that she should look forward positively to getting further improvement over the next three to six months and that these can take quite a long time. He advised it was mainly a tendinitis problem and that the plaintiff should try through Dr Harris to reduce her reliance on Tramal noting she was restricted in the use of anti-inflammatories due to an episode of gastric bleeding. At that stage, he thought it impractical for the plaintiff to come back to see him and, if she had ongoing problems, she should see an orthopaedic surgeon closer to home.
72 Mr Owen noted there was a tendency to deterioration of the rotator cuff in every individual as a consequence of aging. In this instance, without the plaintiff engaging in the activities which allegedly caused the injury, he could not see that there was any other reason for deterioration in her shoulder condition other than natural attrition. He did not believe he was in a position to comment on pain and suffering consequences.
73 In July 2011, Bob Wong, physiotherapist from Gippsland Physiotherapy Group wrote to CGU, suggesting a course of appropriate physiotherapy for the plaintiff.
74 Mr Wong first treated the plaintiff in September 2011 embarking upon a three month program. Noting she was certified unfit for work by her general practitioner, Mr Wong thought the inability to work was likely to continue but this may change in due course following specialist review and ongoing physiotherapy.
75 The plaintiff has been prescribed anti depressants and received counselling. Since her injury she became tearful and anxious and worried about her future and being unable to work. She became so depressed at one point she thought about suicide.
76 The plaintiff deposed in December 2012 that she continued to feel suicidal from time to time and really down and depressed. She felt as if she had no choice, she had pain and as a result thereof, she was not able to work and she was in a bad position financially. She continued to live with her niece but this had caused strain from time to time.
77 In re examination the plaintiff described having been prescribed anti depressants by Dr Harris six months ago. That medication definitely helped her because she was “absolutely falling apart” before she started taking it
78 The plaintiff was referred to Joan James, psychologist, who reported in March 2012 that she thought that the plaintiff had developed a sense of hopelessness associated with her restriction and she had become severely depressed and had high levels of anxiety that could be related to her shoulder injury. Ms James then thought the prognosis was very poor.
Medico Legal
79 The plaintiff was first examined by Russell Miller, orthopaedic surgeon, in July 2011 and, more recently, in April 2012.
80 Following the surgery, on re‑examination, Mr Miller thought the plaintiff had rotator pathology in the shoulder with impingement syndrome, tendinopathy and possible partial or full thickness tear of the rotator cuff. He considered she had had only a moderate response to the surgery and she had clinical features suggestive of residual capsulitis. He remained of the view that the prognosis for the right shoulder was fair or poor.
81 On examination, there was minor tenderness and some restriction of movement and irritability with right shoulder movement. Mr Miller believed the plaintiff’s current problem was predominantly work related shoulder problems. He thought she would require ongoing conservative treatment with an emphasis on pain management and rehabilitation.
82 Mr Miller considered the plaintiff was not fit for pre-injury duties. In his view, she could not perform work that involved repetitive arm actions, use of the arms in the above shoulder position or lifting of weights more than two kilograms on a regular basis. He did not envisage a return to work due to the work related injury.
83 Given his understanding of the plaintiff’s age, education and work experience, Mr Miller did not envisage a return to work due to work related injury and did not think she could work on a significant part time basis. He thought her injury had substantially stabilised and had been so since approximately February 2009. He considered her condition was essentially unchanged from the initial examination. He thought the impairment was permanent.
84 In Mr Miller’s view, as a consequence of the physical injury and impairment of her right arm/ shoulder and left arm/ shoulder and neck, the plaintiff could not perform work involving pushing, pulling or lifting, or repetitive arms movements of the right upper extremity and could not use the right upper extremity in an overhead position. He did not believe she could return to pre-injury work on a significant part time basis.
85 Having received the report of the surgery, it remained Mr Miller’s view the plaintiff had significant rotator cuff pathology with rotator cuff attrition and development of an impingement syndrome. Having had surgery for that, the plaintiff had only a moderate response and had ongoing features suggestive of residual capsulitis. He remained of the view the prognosis for her shoulder was fair to poor. He also commented the prognosis for the plaintiff’s left knee was considered to be good or excellent.
86 Dr Robyn Horsley, occupational health specialist, examined the plaintiff in January 2013.
87 Dr Horsley noted on that occasion the plaintiff’s functional tolerance included a static standing tolerance of 10 minutes and a walking tolerance at a slow pace of half an hour related to her left knee. There was a dynamic standing tolerance of 30−45 minutes related to the plaintiff’s left knee, a driving tolerance of about an hour, more related to her right shoulder than her left knee, and a sitting tolerance of 10−15 minutes, again related to her right shoulder but also subject to the type of chair upon which she was sitting.
88 On examination, there was a reduction in forward flexion and external rotation. All shoulder tests appeared negative, including the test for the supraspinatus and the AC joint test.
89 In Dr Horsley’s view, the plaintiff sustained an injury to her right shoulder which resulted in a partial thickness tear of the supraspinatus tendon which was treated initially conservatively and then surgically in January 2012. She also thought the plaintiff had underlying degenerative change in the cervical spine and mechanical neck pain and suffered from significant depression and anxiety.
90 Given the length of time since the injury and the ongoing nature of the plaintiff’s symptoms, Dr Horsley believed they were likely to persist. Further, she thought the plaintiff had ongoing and significant psychological sequelae which would require further evaluation and management and which significantly impacted on her quality of life. However, Dr Horsley relied on a psychiatric assessment in that regard. From a physical perspective, Dr Horsley thought the plaintiff had a residual disability in her right shoulder although she had had a good response to surgery.
91 Dr Horsley considered the plaintiff is disadvantaged noting she is nearly sixty two and has been out of the workforce now for five years. Dr Horsley thought any job seeking would be significantly affected by the plaintiff’s depression and anxiety, although she deferred to a psychiatrist in that regard.
92 Dr Horsley believed the plaintiff’s opportunities for redeployment were quite limited. She noted the plaintiff’s social situation as being transient over the last few years as she had moved between several nieces and a sister for accommodation, currently living with one of her nieces for the last 14 months, but again that was not necessarily permanent. Dr Horsley thought the transitional arrangement impacted upon the plaintiff’s capacity for work.
93 Dr Horsley believed realistically that the plaintiff’s prognosis for a return to work was very poor and she was likely to remain off work into the longer term.
94 From a physical perspective alone, Dr Horsley thought the following work restrictions would apply – avoidance of repetitive over-reaching, repetitive pushing and pulling, repetitive over shoulder activities and working in awkward and confined spaces. She recommended good manual handling techniques when lifting larger items, avoidance of lifting items greater than 10−12 kilograms, except occasionally and avoidance of lifting up to 5−8 kilograms repetitively.
95 Dr Horsley concluded that the plaintiff’s psychosocial situation and now five years out of the workforce, in combination with her right shoulder disability along with her age of sixty one, acted as considerable barriers for her return to work in any capacity. She believed the plaintiff’s prognosis for a return to work was very poor and the plaintiff was likely to remain out of the workforce into the longer term.
The Defendant’s medical evidence
96 Mr Barclay Reid, general surgeon, examined the plaintiff in February 2011. He diagnosed a full thickness tear of the supraspinatus tendon with separation and retraction of the torn ends, together with subacromial bursitis. He noted the report of the ultrasound set out a definite injury to the supraspinatus tendon which would not be present in age-related changes in other workers who had not had a shoulder injury.
97 On examination, there was no tenderness of the right shoulder and no deformity. There was some limitation of movement, although nearly a full range with gravity eliminated and a moderate restriction with the arm outstretched requiring more force.
98 Mr Reid’s prognosis for full recovery would be very poor, noting the plaintiff was likely to permanently have pain and some restriction of movement of the right shoulder against resistance, particularly beyond 90 degrees of abduction. He thought further treatment was necessary as the plaintiff had persistent symptoms, noting she would like to have surgery.
99 Mr Reid thought the injuries had affected the plaintiff’s capacity to work. Specifically, in his view, he considered she would be unable to perform any work involving strong use of the shoulder such as house cleaning, making beds, dressing disabled clients and transferring them from bed to chair, et cetera. He did not think she had a current capacity for pre-injury employment, but had a capacity for suitable employment not involving elevation of the right arm to shoulder level and not carrying more than 4 kilograms with the right hand.
100 Mr Reid believed the plaintiff could work as a switchboard operator, telemarketer, inquiry clerk and sales clerk. He noted physically she could do those jobs. However, she said she was not good at speaking over the phone and being persuasive in dealing with complaints or marketing.
101 Mr Reid noted with regard to the role of console operator, some of the work involved may be stressful to the plaintiff’s right shoulder since the work involved stocking shelves and refrigerators in service stations which involved stretching her arm out, carrying things which might be too heavy for her and stretching upwards.
102 Mr Reid thought a graduated return to work would be essential and did not think the plaintiff would work full-time initially. He also felt it unlikely she would ever end up working full-time. He noted there was some functional overlay and exaggeration, commenting that the fact the plaintiff had continued to receive the same treatment for about five years and not made a genuine attempt at surgery, which she said she wanted, and her objection to returning to work, in spite of a number of vocational assessments and job suggestions, also, in his view, indicated lack of motivation.
103 Dr Dominic Yong, specialist occupational physician, saw the plaintiff in December 2012.
104 Dr Yong noted the November 2011 MRI revealed the presence of a full thickness supraspinatus tear and tendinopathy. In summary, Dr Yong thought the plaintiff had persisting mild right shoulder rotator cuff dysfunction after surgery for a right shoulder tear and tendinopathy 11 months earlier.
105 Dr Yong considered the plaintiff had a current capacity for work with the following restrictions; avoiding repeated above shoulder height tasks or outstretched arm tasks, firm pushing or pulling with the right arm and lifting more than 5 kilograms.
106 Dr Yong thought the plaintiff would be able to be placed in a range of jobs dependent on her transferrable skills, including office based tasks, light process worker, retail tasks, console operator and call centre operator. He noted in his experience as an occupational physician, he had observed duties which could comply with the restrictions and the plaintiff would be fit to perform, taking into account only her physical capacity.
107 Positions as a sales clerk, switchboard operator, telemarketer and inquiry clerk would also comply with the restrictions and were reasonable. He thought the plaintiff was likely to be able to undertake those duties on a part-time or full-time basis.
108 Dr Yong was subsequently provided with a labour market analysis carried out by WorkStreams in 2012. He thought the identified jobs complied with the restrictions and were reasonable and that the plaintiff had a capacity to undertake them on full-time hours within six months.
109 Dr Yong provided a supplementary report, having seen Dr Horsley’s assessment. He agreed with what was noted and commented that it was similar to his opinion, which remained unchanged.
110 Dr Paul Kornan, psychiatrist, initially examined the plaintiff in April 2011. He thought she presented with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. From a psychiatric viewpoint alone, he considered she was fully fit to return to pre-injury duties.
111 Dr Kornan took a history that the plaintiff clearly saw herself as someone who would not be able to return to the workforce because of her physical injuries. He gained the impression she saw herself as a retired individual who was basically now interested in her family and probably trying to keep in contact with her 12 grandchildren.
112 Following re-examination in January 2013, Dr Kornan noted the plaintiff’s psychiatric condition was marginally better, but the diagnosis and his views remained the same. Dr Kornan considered that she was fully capable of working full-time from a psychiatric point of view. If she could not work on medical grounds, he thought it would be due to physical factors. He considered the appropriate treatment would continue with her local doctor and the plaintiff taking a mild anti-depressant.
Vocational evidence
113 In a vocational assessment report carried out by the VWA In April 2007, it was suggested the plaintiff was suitable for work as an inquiry clerk, order clerk, hotel receptionist, admissions clerk and ticket seller.
114 When interviewed at that stage, the plaintiff did not believe her physical injury had resolved and therefore she did not believe she was capable of then returning to work.
115 The plaintiff confirmed a number of transferable skills set out in the report, including good verbal communication skills and skills relating to time management. She agreed she was dependable and able to work independently.
116 The plaintiff then said she was not able to think of any job that would not involve use of the right arm and that she would need a job sitting, as standing aggravated her pain. Computer use also aggravated her pain and she could only spend about half an hour on her computer at a time. The plaintiff then reported she used to enjoy sewing, crocheting and drawing, but found those activities difficult.
117 A JSA plan was completed in May 2007. A Halfway Report was completed in August 2007. During the currency of those reports, the plaintiff was still being certified as unfit for work by her treating doctor and she reported extreme pain which affected her ability to look for work.
118 Despite increased pain and medication preventing the plaintiff from seeking work, the author of a Job Seeker report in September 2007 noted the plaintiff felt confident in job seeking and reported with her updated resume she would be able to look for work in the future on her own.
119 The plaintiff was not successful in securing employment within the 16 week job seeking assistance period. The plan was extended until March 2008, at which time the plaintiff was still certified as unfit for all duties.
120 A 130 week vocational assessment report was completed in April 2009. The author noted therein that Dr Harris then thought the plaintiff’s employment options would be limited by her condition and rural location, however he was supportive of the duties recommended by WorkStreams and recommended a gradual return to work to progress and build confidence.
121 A further vocational assessment was undertaken on 14 April 2009 which set out suitable jobs as a sales clerk, switchboard operator, console operator, telemarketer and inquiry clerk. The author noted Dr Harris agreed phone based employment was a sufficient employment option. However, he reported that the plaintiff would need to be slowly integrated into work and not begin full-time.
122 The average weekly wage rates for workers aged forty five plus for the suggested jobs in April 2009 were - sales clerk - $824 (those over forty five holding about 29 per cent of the jobs, and those over fifty five, 11 per cent), switchboard operators - $722 (those over fifty five held 20 per cent of the jobs), ticket sellers -$915, (those over fifty five held 9 per cent of the jobs), telemarketers -$687 (those over fifty five held 11 per cent of the jobs) and inquiry clerks -$915 ( those over fifty five held 8 per cent of the jobs).
123 In a vocational assessment report from NES in June 2011, the jobs of sales clerk, sales assistant, call or contact centre operator, telemarketer and inquiry clerk were suggested as appropriate.
124 Weekly wages for various suitable positions were as follows - sales clerk $870, sales assistant $723, call centre operator $737, telemarketer $685 and inquiry clerk $890.
125 There was a subsequent NES vocational assessment report in June 2011 and a WorkStreams labour market analysis in December 2012 confirming the suitability of the previously suggested positions and their availability.
126 As of December 2012, the hourly rates for the suggested jobs were as follows- Sales clerk $26.14, sales assistant $24.10, general clerk $26.55, Hotel receptionist $23.28 and Inquiry clerk $26.41. No details were available for call centre operator or telemarketer roles.
Overview
127 I am satisfied the plaintiff suffered a compensable injury to her right shoulder. Whilst the seriousness of the impairment was in issue, counsel for the defendant did not suggest the injury did not occur.[3]
[3]Transcript (“T”) 45
128 The defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[4] such admission should ordinarily be regarded as very significant:
“. . . albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[4][2006] VSCA 171
129 In addition to her treating doctors, the plaintiff has also been examined by a number of medical practitioners to whom she was referred by her solicitors for both parties.
130 My analysis of their opinions is that there is no real dispute as to the diagnosis of the plaintiff’s condition - a full thickness supraspinatus tear with bursal effusion, as shown on the ultrasound of February 2007.
131 Furthermore, I accept the preponderant view expressed by these medical practitioners that the injury has impaired the plaintiff’s right shoulder function and that it has in turn has had had the following consequences:
Pain and Suffering Consequences
132 The plaintiff has sworn three affidavits – 25 October 2010, 16 January 2012 and 21 December 2012 – in which she deposed to the injury she suffered and the impairment caused by the consequences to her in terms of pain and suffering.
133 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon[5] at paragraph 12:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[5](2010) 31 VR 1
134 I found the plaintiff to be a truthful, credible witness. There was no attack on her evidence as to her pain and restrictions in cross examination. Further there was no film or lay evidence inconsistent with the plaintiff’s description of her ongoing difficulties. No doctor suggested there were inconsistencies on examination or that the plaintiff in any way exaggerated her symptoms or claimed restrictions.
135 I have considered the submissions of Ms Pilipasidis, for the plaintiff, and Mr Chamings, for the defendant, and I have read the transcript of the plaintiff’s evidence and the medical reports.
136 On the basis of the foregoing, I am satisfied that the plaintiff’s pain and suffering consequences meet the statutory test.
137 My reasoning in making that finding is as follows.
138 I accept the plaintiff’s evidence that she suffers ongoing constant right shoulder pain despite surgery. The pain is a sharp burning sensation like a toothache varying in intensity made worse by overhead or repetitive activities. The plaintiff demonstrated in the witness box that her pain is across the back of her right shoulder and into her neck and face which can sometimes go numb. At times, her neck is very sore and stiff and occasionally the plaintiff experiences headaches due to neck pain.
139 The plaintiff has been disappointed with the outcome of the surgery. Although she is able to move her shoulder a lot more, she continues to have difficulty elevating her right arm above shoulder height and lifting things. She can do both actions but has to be careful doing so.
140 All medical examiners found restriction of shoulder movement and some tenderness on examination.
141 As Mr Miller described, the plaintiff’s restricted range of shoulder movement will affect most activities of daily living including reaching above her head and away from her body.
142 Further, the plaintiff has weakness and impaired strength in her right shoulder extending into her upper arm.
143 The plaintiff is presently prescribed a significant amount of relatively heavy painkilling medication: Tramal slow release 100 milligrams morning and evening, Lyrica 150 milligrams twice a day, Panadol for headaches and when pain goes up the side of her face, Cymbalta, an antidepressant, and also a sleeping tablet nightly.
144 In Kelso v Tatiara Meat Company Pty Ltd,[6] where chronic pain was a feature of the appellant’s case, Dodds-Streeton JA noted that the endurance of permanent daily pain requiring frequent medication must according to ordinary human experience raise a real prospect of a very considerable consequence.
[6](2007) VSCA 267 at paragraph 191
145 The plaintiff has been compliant with medication and treatment suggested and surgery has been postponed at various times because of other health problems which are no longer an issue.
146 The plaintiff sees Dr Harris monthly. Having had a dozen physiotherapy sessions after the surgery, the plaintiff continues to do exercises a couple of times a week at home.
147 Prior to suffering injury with the defendant working as a personal care attendant, the plaintiff had a wide variety of employments, including clerical and managerial duties.
148 The consensus of medical opinion is that the plaintiff is unable to carry out duties of the type she was performing when injured and that she would need to avoid a lot of activity at or above shoulder level and that significant lifting restrictions are appropriate.
149 I accept the plaintiff’s pain and restriction and its interference with her working capacity is a serious consequence for her.
150 Further, the plaintiff’s shoulder injury interferes with her social and domestic activities.
151 The plaintiff is able only to help with light cooking and cleaning at home. Repetitive movements when vacuuming and mopping aggravate her shoulder. She can only cook simple food and not lift heavy pots or do a lot of chopping or repetitive tasks.
152 The plaintiff compensates for her right shoulder by using her left a lot more. She has learned to do a lot more things with her left arm, including driving, and performing a lot of activities she would otherwise not have done using her left arm.
153 I am confident accepting the plaintiff’s evidence because the medical evidence, which I accept, supports the conclusion that she suffered an injury which has so impaired the function of her right shoulder and is consistent with the plaintiff’s evidence that she has suffered the level of pain and suffering consequences summarised above.
154 As it over six years since the original injury and the plaintiff continues to experience shoulder pain despite surgery, I am satisfied that the condition is permanent.
155 In my view, the pain and suffering consequences meet the statutory test of seriousness, in that the degree to which the plaintiff suffers those consequences is more than significant or marked and in my value judgment those consequences are deserving of the description of “at least very considerable”.
156 Accordingly I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
Loss of earning capacity consequences
157 Also in issue in this application is whether the plaintiff is fit for suitable employment or, alternatively, if fit for suitable employment, whether she has permanently suffered a loss of earning capacity of 40 per cent.
158 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, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
159 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.
160 The former must be calculated by reference to the six year period specified in s134AB(38)(f).
161 “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.
162 That figure 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.
163 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,[7] at paragraph 70.
[7](supra)
164 I am therefore required to determine a “without injury” earnings figure. Limited submissions were made by counsel for the plaintiff in relation thereto which were accepted by counsel for the defendant.
Summary of the plaintiff’s income tax returns
Financial Year Ending Gross Income June 2003 $25,393 June 2004 $21,590 June 2005 $23,246 June 2006 $27,986 June 2007 $21,320 June 2008 $23,602 June 2009 $24,060 June 2010 $18,120 June 2011 $26,406
165 Counsel for the plaintiff submitted that the figure earned in the financial year 2005-2006 of $27,986 was an appropriate without injury earnings figure. Sixty per cent of that amount is $16,791per annum or $322 per week.
166 Having found the plaintiff is incapacitated for her pre injury unrestricted manual employment, the plaintiff’s capacity for suitable employment must be considered.
167 The relevant factors are as follows-
“Suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i)the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii) the nature of the worker's pre‑injury employment; and
(iii) the worker's age, education, skills and work experience; and
(iv) the worker's place of residence; and
(v)any plan or document prepared as part of the return to work planning process; and
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether—
(i) the work or the employment is available; and
(ii)the work or the employment is of a type or nature that is generally available in the employment market.”
168 Having considered the submissions of both counsel and read the transcript of the plaintiff’s evidence, the medical reports and vocational reports, while the plaintiff does not have the capacity for pre-injury employment, I find that she does have a capacity for suitable employment which results in her not suffering the requisite loss of 40 per cent.
169 The plaintiff has had a wide range of work experience other than in manual work of the nature carried out whilst working for the defendant.
170 As the plaintiff agreed in cross examination, she has had about thirteen years in despatch, warehousing and factory work, with some management experience. Her work at Dominie involved allocating staff at busy times and providing them with assistance. She was capable of working independently and without supervision and loved working in customer service.
171 Further, in cross examination the plaintiff admitted she would have the skills to do a number of suggested jobs but would not know until she tried whether she could undertake them on a regular basis.
172 The plaintiff agreed she could work as a hotel receptionist if that job involved greeting guests and responding to personal telephone or written requests. She could undertake admissions work at a hospital or aged facility but thought the job would involve further duties than simple admissions. She did not really know what was exactly required in a ticker seller role or as an inquiry clerk but could try the latter if it “was not full on”, she was allowed breaks and there was no lifting or reaching involved.
173 The plaintiff thought working as on order clerk may cause her some difficulty if it involved extended computer use as she had only a 15 minute capacity for such work before her arm started aching. She made a similar comment in relation to clerical work agreeing she could do clerical work with breaks but would possibly have to try first as she has problems with day to day tasks. She would like to work but does not know what her shoulder would handle.
174 I accept the plaintiff would have a capacity to perform office work, not involving extended computer use. Although in cross examination the plaintiff stated that Dr Harris was “totally with her” that she was not in a position to work,[8] he reported in August 2012 that on a physical basis the plaintiff would be restricted to office type duties noting that depression and psychosocial factors had been significant.
[8]T42
175 In late 2011, prior to surgery, Dr Patil and Dr Wai from South Gippsland thought the plaintiff had a capacity for light duties.
176 Like Dr Harris, Dr Horsley also considered there was an ongoing and significant psychological sequelae. She considered any job seeking would be significantly affected by these matters. From a physical perspective alone she considered the plaintiff did have a capacity for work involving a number of restrictions as to manual handling with her right hand.
177 Treating orthopaedic surgeon, Mr Owen did not comment specifically on the plaintiff’s employment capacity simply noting that if she avoided heavy activities with her right arm he could see no other reason for deterioration than natural attrition.
178 Mr Miller is alone in his most recent view that he did not envisage a return to work due to the work related injury. In his earlier report he did not think the plaintiff could work on a significant part time basis due to her injury, age, education and other work experience. However, he did not make mention in his reports of the plaintiff’s previous work in customer service, noting she had worked mainly in the area of physical work.
179 Having seen the December 2012 WorkStreams labour market analysis, Dr Yong thought the identified jobs complied with the restrictions and were reasonable and that the plaintiff had a capacity to undertake them on full-time hours within six months.
180 Mr Reid considered the plaintiff had a capacity for suitable employment not involving elevation of the right arm to shoulder level and not carrying more than 4 kilograms with the right hand.
181 Mr Reid believed the plaintiff could work as a switchboard operator, telemarketer, inquiry clerk and sales clerk. He noted physically she could do those jobs, although he noted she reported having some difficulty speaking to clients and suppliers. He did not think some of the duties involved in working as a console operator were within the plaintiff’s restrictions.
182 Mr Reid thought it was unlikely the plaintiff would ever end up working fulltime and that there was some functional overlay and exaggeration present in her presentation.
183 Save for Mr Miller, the consensus of medical opinion is that the plaintiff does have a capacity for suitable employment in a number of the suggested roles. In my view, the plaintiff would be able to undertake such duties at least on a significant part time basis.
184 Whilst her medication intake is relatively significant, the plaintiff did not complain of any effects of that medication on her concentration.
185 Although I accept that the plaintiff has not retired from the workforce as was suggested to her in cross examination, I accept that she considers at her age she would have difficulty finding work and accordingly has not made any job applications since 2009. Until that time she applied for casual jobs in retail which she agreed she thought she could perform working twenty to twenty five hours per week involving no lifting and within her limitations however she had not felt well enough since surgery to look again because of her shoulder.
186 Whilst the plaintiff has experienced continuing pain and restriction, although to a lesser degree since surgery, and at times she may be somewhat unreliable when she experiences a sudden onset of pain, I am not satisfied that the level of these problems would preclude her from obtaining at least part time work.
187 The plaintiff would only have to work a small number of hours to exceed the threshold figure of $322. Working only twenty hours per week, the plaintiff would not suffer the requisite loss based on the December 2012 labour market analysis positions which attract wages in the range of $25 per hour. Working as little as thirteen hours per week at this rate, the plaintiff would earn $325. Working twenty hours, she would earn $400 per week.
188 Whilst an analysis in these terms based on current earnings of about $50,000 may seem unfair to the plaintiff, as her counsel submitted, when her pre injury earnings did not exceed $28,000, this is the approach I am required to take when considering loss of earning capacity under the Act – see Hayhill v Hodge.[9]
[9][2006] VSCA 194
189 Although the plaintiff is now aged sixty one, the type of suitable employment suggested, and which I accept is appropriate, is not closed to her by virtue of her age as set out in the JSA assessment.
190 Further, I do not consider living in Sunbury poses any particular problem for the plaintiff in terms of access to employment as that town has good public transport and is not particularly far from Melbourne. Further, there is no evidence of there being a particular problem with unemployment in that area. Also, I do not accept the plaintiff’s living arrangements are an impediment of any significance to her obtaining employment in the future.
191 I have analysed the plaintiff’s evidence and that of the medical practitioners who have offered opinions as to her capacity for suitable employment. On the basis of her physical condition alone, ignoring her depression and other psychosocial issues, I find the plaintiff is fit for suitable employment such that she does not suffer the requisite loss of forty per cent.
192 Accordingly, I grant leave to bring proceedings for damages for pain and suffering, but dismiss the plaintiff’s application insofar as it relates to loss of earning capacity.
- - -
0
5
0