Guinane v Mornington Peninsula Shire
[2013] VCC 1917
•12 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-06147
| MARIE LOUISE GUINANE | Plaintiff |
| v | |
| MORNINGTON PENINSULA SHIRE | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 November 2012 | |
DATE OF JUDGMENT: | 12 December 2012 | |
CASE MAY BE CITED AS: | Guinane v Mornington Peninsula Shire | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1917 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering and loss of earning capacity consequences – injury to shoulder – whether the pain and suffering or loss of earning capacity consequences of such injury are “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave granted to the plaintiff to commence an action claiming damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr B Hutchinson | Maurice Blackburn Lawyers |
| For the Defendants | Mr J Simpson | Thomsons Lawyers |
HIS HONOUR:
1 Marie Guinane alleges that she suffered injuries in the course of her employment with the defendant in January 2008. She seeks the leave of this Court to issue a proceeding to recover pain and suffering and loss of earning capacity damages in respect of those injuries.
2 Her right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities that she has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of Ms Guinane’s right shoulder. Although Ms Guinane originally claimed also to have suffered a “serious injury” as defined in part (c) of the definition of that term in s134AB(37) of the Act, that claim was abandoned at the commencement of the proceeding.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33 at paragraphs [18] to [19]
6 An impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering or loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[3]
[3]Section 134AB(38)(c)
7 With respect to loss of earning capacity damages, leave is not to be granted by the Court on the basis that Ms Guinane has suffered the loss of earning capacity required by s134AB (38)(b) unless she establishes, in addition to the requirements of s134AB(38)(c) that, at the date of the hearing of the application, she has suffered a loss of earning capacity of 40 per cent or more calculated in accordance with ss(38) (e), (f) and (g).
8 Ms Guinane submits that the pain and suffering and loss of earning capacity consequences of her injuries can fairly be described as being more than significant or marked and at least very considerable. The defendant denies this is so. It further denies that Ms Guinane has suffered a loss of earning capacity of 40 per cent or more.
9 The matters in issue and to be determined in this application are:
(a)What injury has Ms Guinane suffered to her right shoulder?
(b)Can the pain and suffering or loss of earning capacity consequences of such injury be fairly described as being “at least very considerable”?
(c)Has Ms Guinane suffered a loss of earning capacity of 40 per cent or more when measured in accordance with s134AB(38)(e), (f) and (g) of the Act?
Background
10 Ms Guinane is aged sixty-three.
11 She was educated to Year 10 at school.
12 Her work history is varied. After leaving school aged sixteen, she was employed in a clerical capacity by an insurance company and a real estate agency, each for about five years. Later she was employed by STA Travel doing similar clerical duties for approximately eighteen months, before moving to Queensland. There, she worked as a receptionist for about sixteen years for her partner who managed an apartment building in Surfers Paradise. She returned to Melbourne in 2001, aged fifty-two.
13 On her return, she completed a course in Disability and Community Care at Chisholm Institute and in late 2003, commenced work with the defendant as a personal carer, working approximately 25 to 30 hours per week.
14 On 31 January 2008, whilst attempting to shower a client in her care, she suffered an injury to her right shoulder. She reported the incident to the defendant the following day and saw her general practitioner, Dr Lottkowitz. She was referred for physiotherapy, an ultrasound and an x-ray in March 2008. The x-ray revealed no abnormality. The ultrasound however, showed a small full-thickness tear in the supraspinatus tendon around 1cm in length associated with some bursal fluid.[4] Ms Guinane ceased work because of shoulder pain soon after this.
[4]PCB 43
15 In April 2008, Ms Guinane commenced physiotherapy treatment with Mr Chia. Such treatment has continued until the present.
16 In October 2008, she underwent a second ultrasound on her right shoulder, which showed a now larger tear of the supraspinatus tendon, some 1.4 cm in length. There was fluid present in the subdeltoid bursa and some bunching of subdeltoid bursa on abduction.[5]
[5]PCB 43
17 In early November 2008, she returned to work with the defendant on restricted duties, six hours per week.
18 In December 2008, she was referred by Dr Lottkowitz to orthopaedic surgeon, Mr Weber, who advised that she undergo surgery.[6]
[6]PCB 30
19 On 12 January 2009, Mr Weber performed an arthroscopic decompression and rotator cuff repair.[7]
[7]PCB 31
20 In July 2009, Ms Guinane returned to work again with the defendant, performing modified light duties at different locations on restricted hours. She eventually built up to working fifteen hours per week.[8]
[8]DCB 83-97
21 By late 2010, she worked on a casual basis in the defendant’s planning department, three days per week, five hours per day, until September 2011 when she was advised by the defendant that there was no longer any work for her in that department. She was not offered other work by the defendant. She has not worked since.
22 In September 2011, Ms Guinane complained to Dr Lottkowitz of left shoulder pain,[9] and on 23 September 2011, underwent a left shoulder x-ray and ultrasound.[10] It was reported as showing no impingement and no fluid in the subdeltoid bursa. A tear measuring 4 millimetres was present in the supraspinatus tendon. The rotator cuff tendons were otherwise normal.[11]
[9]PCB 26
[10]DCB 70
[11]DCB 70
23 Mr Guinane continues to see Dr Lottkowitz approximately every three months. She continues to suffer from right and left shoulder pain and takes Voltaren and Panadol medication regularly.
Diagnosis of Injury
24 It was not in issue between the parties that Ms Guinane had suffered a full-thickness tear of the right rotator cuff in the course of her employment.
Pain and suffering consequences
25 Counsel for the defendant conceded that the pain and suffering consequences of Ms Guinane’s injuries can be fairly described as being at least very considerable within the meaning of that term in s134AB(38)(c).[12]
[12]Transcript (“T”) 111
26 I consider that the evidence discloses the pain and suffering consequences of her right shoulder injury were as follows:
(a)She suffers ongoing pain in her right shoulder. As she is right-hand dominant, she encounters considerable impairment to her activities of daily living;
(b)She has difficulty performing any physical work with her right arm. The pain increases if she lifts her right hand or arm above her shoulder height, or holds them in one spot. She has difficulty performing any activity requiring heavy lifting, pushing or pulling;
(c)She has developed pain in her left shoulder, as a result of overuse of it in trying to protect her right shoulder. She avoids lifting anything heavy or performing repetitive movements with her left shoulder, and avoids lifting it above shoulder height due to the pain increasing. She is reluctant to undergo surgery to her left shoulder for fear she will suffer similar complications as she did following her right shoulder post-surgery;
(d)Her sleep is frequently disturbed by right shoulder pain;
(e)She currently takes Voltaren and Panadol regularly for pain;
(f)Prior to the accident she had started golf lessons with the intention of playing regularly. She has not been able to pursue this pastime due to the injury. She had also joined a mosaic group, which she no longer attends due to her injuries;
(g)She is restricted in her ability to carry out normal household duties that require any physical or repetitive use of her right arm. She has difficulty vacuuming, cleaning the shower recess and duties requiring overhead movements, such as hanging clothes on the washing line.
27 I am satisfied that the consequences of Ms Guinane’s right shoulder injury are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.
Loss of earning capacity consequences
28 Prior to her injury, Ms Guinane worked between 25 to 30 hours per week with the defendant.[13]
[13]T18
29 From the time of her injury in January 2008 until September 2011, when her employment was terminated, Ms Guinane had been able to work part time, performing light modified duties save for about six months when she was off work following surgery. She had commenced working 6 hours per week and gradually increased her working hours to fifteen hours per week.
30 In order for leave to be given for Ms Guinane to claim damages for loss of earning capacity, she must establish that she has suffered a loss of earning capacity of 40 per cent or more, calculated in accordance with ss(38)(f) and (g).
31 The parties were in agreement that, for the purposes of ss(38)(f)(ii), the gross income that Ms Guinane was earning or capable of earning from personal exertion during that part of the period within three years before and three years after the injury as most fairly reflects her earning capacity, had the injury not occurred was $46,702 per annum.
32 It follows that, in order for Ms Guinane to establish a 40 per cent loss of earning capacity, she must establish that she does not have the capacity to earn $26,221 gross per annum (being 60 per cent of $46,702) in suitable employment, after any re-training or rehabilitation in accordance with ss(38)(g). The weekly equivalent is $504.
33 Ms Guinane did not submit that she was incapable of working at all. Rather, she maintained that she was only capable of part-time work.
34 Determining whether or not she has suffered the required loss requires consideration of what is suitable employment for her, what number of hours she is capable of working in suitable employment, and what are the relevant hourly rates of pay in such employment.
35 In January 2010, her general practitioner, Dr Lottkowitz considered Ms Guinane’s skills to be in the interpersonal realm, noting that while she had experience in office work, her computer literacy was poor. She considered that her incapacity was partial but that there would be some permanent impairment. She considered her then current work with the Department of Planning suitable, but noted it was not a permanent role.[14]
[14]PCB 18
36 In July 2010, Dr Lottkowitz considered there were few employment duties that were suitable for Ms Guinane due to the restriction in her upper limb dexterity and pain, plus new pain in the left shoulder. She considered that light office duties, sales assistant work involving up to one hour maximum of standing, answering phones, filing or computer work would be suitable, of up to five hours per day for five days per week.[15] I do not understand the basis for her opinion that standing for more than an hour would be a problem for Ms Guinane. There was no other evidence to this effect.
[15]PCB 19
37 In April 2013, Dr Lottkowitz opined that, while Ms Guinane could potentially do telephone work wearing a headset at a desk, her trouble dealing with the general public would make this telephone work almost impossible for her.[16] I consider that any problems Ms Guinane might have dealing with the public would not be a consequence of her shoulder injury but would more likely relate to problems with depression that Dr Lottkowitz had earlier diagnosed.[17]
[16]PCB 28
[17]PCB 26, 28
38 Ms Guinane tendered a Certificate of Capacity provided by Dr Lottkowitz dated 27 July 2011. In it, the doctor certified Ms Guinane fit for modified duties, 12 to 15 hours per week (being 3 to 5 hours on three days per week, no overhead work, no lifting over 2 kilograms, and no repetitive work.[18] The parties agreed that Dr Lottkowitz had repeatedly provided certificates containing those work restrictions over the year leading up to the termination of her employment in September 2011. Counsel for Ms Guinane submitted that this estimate of hours that could be worked post-dated and was more relevant than the earlier estimate of 25 hours per week set out in Dr Lottkowitz’s report of July 2010.
[18]PCB 82
39 In March 2010, Mr Owen Deacon, orthopaedic surgeon, examined Ms Guinane at the request of the claims agent. He took a history from her that her symptoms had improved to a degree following surgery, and that she thought herself capable of light office work with not too much computer work, such as a role in asset management three hours per day which she had previously performed and found satisfactory.[19] He considered she would never be able to return to her pre-injury occupation as a personal carer. He did consider she had a capacity for alternative employment but was somewhat vague as to what that might be.[20]
[19]DCB 28
[20]DCB 31
40 In August 2013, Mr Rodney Simm, orthopaedic surgeon, examined Ms Guinane at the request of the defendant. He considered that she was capable of suitable employment. He thought from a physical point of view she could undertake the same office-based duties she was performing prior to September 2011.[21] I note that these duties were performed approximately 15 hours per week.
[21]DCB 72
41 Dr Robyn Horsley, occupational physician, assessed Ms Guinane at the request of her solicitors in October 2013. She thought Ms Guinane had normal walking, sitting and dynamic and static standing tolerances and a driving tolerance of one hour with power steering. She thought Ms Guinane was unfit for pre-injury duties, and at her age and with her current presentation, was not a candidate for re-training or re-deployment.[22]
[22]PCB 58
42 Raul Cordero, physiotherapist, provided a report on Ms Guinane’s treatment at the request of her solicitors in November 2013. He thought Ms Guinane had a very limited capacity for work. He opined that should she gain employment, it could not involve repetitive movements of the right shoulder, elevation of the shoulder above 90 degrees, pushing or pulling with the right shoulder or arm, or lifting objects greater than 2 kilograms with the right arm.[23]
[23]PCB 37
43 Mr Michael Fogarty, orthopaedic surgeon, examined Ms Guinane at the request of her solicitors in October 2013. He thought that she was fit for light part-time work not involving any repetitive use of either shoulder above her head nor any heavy lifting, and that she would be limited to working about 15 to 20 hours per week.[24]
[24]PCB 63
44 A rehabilitation consultant, Julie Giang, interviewed Ms Guinane at the request of the claims agent in May 2010, just over three-and-a-half years ago. Taking into consideration Ms Guinane’s physical restrictions and current skills and abilities, she considered the roles of information officer, customer services advisor, call centre operator, administration assistant, receptionist and sales assistant were suitable for her.[25]
[25]DCB 142
45 Ms Mary Oliver, occupational consultant of Flexi Personnel, provided an employment assessment in relation to Ms Guinane in November 2013. She considered that Ms Guinane was not a candidate for vocational retraining, regardless of the industry, due to her pain, fatigue, poor memory and lack of computer skills. She thought even sedentary office work would be difficult due to Ms Guinane’s injuries and intolerance for sitting and standing for long periods. Overall, she considered her prospects for suitable employment unpromising.[26]
[26]PCB 77
46 The reports of Mr M Kahn, orthopaedic surgeon, Mr J Hart, Mr D Fish and of Ms Andrea Tatterson, vocational consultant, go back several years and I do not consider these to be of assistance to me in determining Ms Guinane’s current work capacity.
47 The onus of establishing the required loss of earning capacity lies on Ms Guinane.
48 Taking all the evidence into account, I consider it likely that she has a capacity to work in light sedentary office work for up to 20 hours per week. Insofar as her capacity may, as suggested by Dr Lottkowitz, be less than that, I consider such incapacity is a consequence of her depressive condition which I am not permitted to take into account by reason of ss(38)(h).
49 Various hourly rates of pay for clerical positions were set out in a report of Flexi Personnel dated November 2013.[27] Counsel for Ms Guinane submitted that an hourly rate of $18.27 was realistic, if I accepted that she was capable of working. On that basis, if she was capable of working 20 hours per week, she would earn $365.40 per week.
[27]PCB 80
50 Counsel for the defendant submitted that Ms Guinane was capable of working as an administrative assistant, a position described by Ms Giang in her report.[28] The report does not specify the number of hours required to be worked in the position. Notwithstanding, counsel submitted that the weekly wage referred therein of $850 amounted to an hourly rate of $22.36 for a 38-hour week; or $24.28 for a 35-hour week. If Ms Guinane worked a 20-hour week at either of those hourly rates, she would earn $445.60 and $485.60 per week respectively. Both those figures are below $504 and would point to a loss of earning capacity of more than 40 per cent.
[28]DCB 144
51 Counsel for the defendant submitted that I should find Ms Guinane capable of working 25 hours per week and would, at an hourly rate of $22.36 or $24.28, be capable of earning more than $504.00 per week. Therefore, he submitted, she would not establish a loss of earning capacity of 40 per cent or more.
52 That submission appears to be based on either the number of hours worked by Ms Guinane prior to her injury or on the 2010 opinion of Dr Lottkowitz. Her pre-injury hours of work are not, in my view, relevant. It is what she is capable of working now that is relevant. As stated above, I accept the Certificates of Capacity provided by Dr Lottkowitz throughout 2011 to be more relevant than the view as expressed by her in her July 2010. That more recent view is supported by Mr Simm.
53 Counsel for the defendant further submitted that prior to her injury, Ms Guinane had only worked between 25 to 30 hours per week. Sixty per cent of those hours amounts to 15 to 18 hours per week. It followed, according to the submission, that if she was capable of working more than 18 hours per week she would not establish a loss of more than 40 per cent. I do not accept that submission. Section (38)(e) and (f) plainly require the Court to have regard to earnings through exertion, not hours of work.
54 The question of whether Ms Guinane has lost 40 per cent or more of her earning capacity is not a straightforward one. It requires value judgements concerning the type of work she can perform, the number of hours per week she can work and the hourly rate of pay involved. None of these issues can be determined with certainty. However, taking all of the evidence into account, I am satisfied that Ms Guinane has established, on the balance of probabilities, that:
(a) She is not able to work in suitable employment for more than 20 hours per week and is not likely to be able to do so in the foreseeable future; and
(b) She would be unlikely to earn more than about $20.36 per hour.
55 Accordingly, I find that Ms Guinane has established that she has a loss of earning capacity of more than 40 per cent. Even if she was capable of earning as much as $24.28 per hour, the result would be no different.
Conclusion
56 For the reasons set out above, I am satisfied that Ms Guinane has suffered a “serious injury” as defined in the Act. I am satisfied the pain and suffering consequences of her right shoulder injury are fairly described as “at least very considerable”. I am satisfied that she has had a loss of earning capacity of more than 40 per cent and which is more than marked or significant, and is at least very considerable.
57 Accordingly, there will be leave pursuant to s134AB(16)(b) of the Act for Ms Guinane to commence a proceeding to recover damages for pain and suffering and loss of earning capacity in respect of injuries suffered by her in the course of her employment with the defendant on or about 31 January 2008.
58 I shall hear the parties in respect of any consequential orders sought.
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