Gulbin v George Weston Foods Ltd
[2015] VCC 738
•9 June 2015
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05651
| CELIA JEANETTE GULBIN | Plaintiff |
| v | |
| GEORGE WESTON FOODS LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 19 and 20 May 2015 | |
DATE OF JUDGMENT: | 9 June 2015 | |
CASE MAY BE CITED AS: | Gulbin v George Weston Foods Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 738 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to right shoulder – injury to bilateral shoulders – pain and suffering – loss of earning capacity – retained capacity for suitable employment
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Lu v Mediterranean Shoes Pty Ltd & Ors (2000) 1 VR 511
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages. The application for leave to the plaintiff to bring common law damages for loss of earning capacity damages is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr D J N Purcell | Arnold Dallas & McPherson |
| For the Defendant | Mr W R Middleton QC with Mr R Kumar | Hall & Wilcox Lawyers |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 17 November 2014 by the plaintiff, who applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injury suffered by her arising out of or in the course of her employment with the defendant.
2 The plaintiff was employed by the defendant from 19 January 2007 until her last day of work on 23 February 2012.[1]
[1]Plaintiff’s Court Book (“PCB”) 28 & 30
3 The plaintiff seeks leave to bring proceedings for pain and suffering damages. The plaintiff also seeks leave to bring proceedings for loss of earning capacity damages.
4 At the commencement of this hearing, the defendant conceded that the plaintiff be granted leave to bring proceedings for pain and suffering damages arising out of the injury to her right shoulder in the course of her employment with the defendant.[2] The plaintiff proceeded in this application with her application for a serious injury certificate in relation to loss of earning capacity damages for an injury to her right shoulder, or bilateral shoulder injury.
[2]Exhibit P4 and Transcript (“T”) 10
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined.
· Exhibit P1 – the Plaintiff’s Court Book, pages 27-127 inclusive.
· Exhibit P2 – two-page record of the plaintiff’s earnings with J L King & Co.
· Exhibit P3 – pay records of the plaintiff with the defendant from 2008 onwards.
· Exhibit P4 – Notice by the insurer for the defendant conceding an injury to the plaintiff’s left and right shoulder granting leave to bring proceedings for pain and suffering.
· Exhibit P5 – Certificate of Capacity dated 14 May 2015.
· Exhibit P6 – Letter from the defendant’s solicitors to Mr Michael Dooley dated 19 May 2015.
· Exhibit D1 – Defendant’s Court Book (“DCB”), pages 4-12B, 22-37A, 41‑65 and 79-80 inclusive.
· Exhibit D2 – Affidavit of Lisa-Marie Pace dated 7 May 2015.
6 This application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that she has suffered a permanent serious impairment or loss of body function. The loss of body function in this case is to the plaintiff’s right shoulder or, alternatively, a bilateral shoulder injury.
7 Mr Middleton QC, on behalf of the defendant, identified the issues in this application as follows:
(i) The defendant conceded that the plaintiff have leave to bring proceedings to recover damages for pain and suffering in respect of her right shoulder injury;
(ii) The defendant denies that the plaintiff has suffered a loss of earning capacity affecting her to the extent of 40 per cent reduction in her earning capacity;
(iii) The plaintiff has a capacity to work full time in a light duties’ occupation;
(iv) The plaintiff’s credibility and reliability as a witness was an issue in this case.
8 The plaintiff was cross-examined extensively during the course of this application. She was the only witness to give evidence in this case.
The statutory scheme
9 The application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
10 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[3]
[3]Section 134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[4]
[4]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being “more than significant or marked”, and as being “at least very considerable”.
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, that such a loss must be to the extent of 40 per cent more, both at the date of hearing and permanently.
(g) In conformity with Barwon Spinners,[5] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
[5]Supra
11 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
12 The plaintiff was born in 1958. She is now fifty-five years old. The plaintiff was born in England and came to Australia with her family in 1969.[6]
[6]PCB 27
13 The plaintiff is a married woman. She has three children. She has a dependent daughter who is disabled with Down’s Syndrome and lives with her.[7]
[7]PCB 27
14 The plaintiff was educated to Year 9 in Australia. After her education was completed, the plaintiff worked in a number of styles of employment. She has previously worked as an industrial sewing machinist for approximately ten years. This work was followed by her occupation as a process worker in a biscuit factory. The plaintiff has worked as a cook and as a cleaner. She had also worked as a console operator prior to her employment with the defendant.[8]
[8]PCB 27
15 In January of 2007, the plaintiff commenced employment with the defendant, initially as a process worker on a casual basis. By December of 2007, the plaintiff had been made a permanent employee, working full time as a Schindler machine operator. The plaintiff described this work as heavy work.[9]
[9]PCB 28
16 The plaintiff described the nature of her work and the onset of her injury to the right shoulder in particular, in the following terms:
“The Schindler Machine is an automated bacon slicing machine roughly the size of a small caravan. I was responsible for setting up the Schindler Machine and ensuring that the line ran smoothly. The portions of bacon would come through the slicing machine on a conveyor belt. A co-worker was responsible for ensuring that the portions of meat were correctly spaced on the belt. If the portions were not adequately spaced the machine would jam. If my co-worker failed to do their job, I would space the portions myself. This work was done at shoulder height. I would also have to clear product when the Schindler Machine displayed an error message. The portions of meat varied in weight from six (6) kilograms to about twenty (20) kilograms. On an average day I would lift twenty (20) to forty (40) portions off and back on to the conveyor belt due to the Schindler Machine jamming up.
Over the course of my employment I experienced occasional pain in my shoulders. My right shoulder was worse than my left shoulder.
By the end of my shift on 1 September 2008 my right shoulder was more sore than usual. I also had pain in my left shoulder. On that day my co-worker had not been doing his job properly and the portions were not adequately spaced causing the Schindler Machine to jam. By the end of that day I had lifted between fifty (50) and sixty (60) portions on and off the conveyor belt. I reported my injury to my manager and over the next two (2) to three (3) weeks I received physiotherapy treatment onsite at the Soft Tissue Centre. My shoulders improved with the physiotherapy treatment but over time they became sore again.”[10]
[10]PCB 28
17 The plaintiff attended her general practitioner in April 2009 with a complaint about her shoulders. She was referred to Mr Andrew McQueen, orthopaedic surgeon, for examination and review. The plaintiff continued to work in her capacity as a process worker up until 6 December 2010.[11]
[11]PCB 29
18 The plaintiff had surgery in December of 2010. After the surgery, the plaintiff returned to her workplace as an office worker on light duties in March 2011.[12] The plaintiff remained at work from March 2011 until February of 2012, when her duties were changed from office work to being back on the process line.[13] By the end of February 2012, the plaintiff’s symptoms had increased in her shoulders and she ceased working at that time. She has not returned to her work with the defendant since February of 2012.[14]
[12]PCB 29
[13]PCB 30
[14]PCB 30
19 In 2013, the plaintiff attended and completed a horticulture course at Bendigo TAFE.[15]
[15]PCB 32
20 In February of 2014, the plaintiff returned to part-time work washing dishes for 15 hours per week.[16] This work was with an entity known as J L King & Co. The plaintiff worked in the capacity as a dishwasher and later as a salad packer until 22 March 2015.[17]
[16]PCB 32
[17]Exhibit P2
21 The plaintiff has not worked since ceasing employment at J L King & Co on or about 22 March 2015.
Medical treatment
22 The plaintiff initially sought treatment for her right shoulder on 1 September 2008 at the Soft Tissue Centre of the defendant’s premises. This treatment was physiotherapy treatment.[18]
[18]PCB 28
23 On 5 April 2009, the plaintiff attended upon her general practitioner, Dr Gavin Rowland, at the Mostyn Street Clinic, Castlemaine.[19] The plaintiff complained of pain in both shoulders, worse on the right side. Dr Rowland gave the plaintiff cortisone injections in each shoulder, which provided temporary relief.[20]
[19]PCB 29 and PCB 45
[20]PCB 29
24 The plaintiff was referred to, and initially attended, Mr Andrew McQueen, orthopaedic surgeon, on 5 October 2010.
25 On 15 October 2010, the plaintiff’s shoulders were examined by MRI imaging.[21]
[21]PCB 52
26 On 21 December 2010, Mr Andrew McQueen performed an arthroscopic procedure on the plaintiff’s right shoulder. The operation was reported as follows:
“1/ Arthroscopy confirmed a labral tear and synovitis anteriorly in the joint, however the biceps tendon, subscapularis tendon and articular surface were all normal as was the deep surface of the rotator cuff.
An arthroscopic debridement of the labrum and synovitis was performed.
2/ Open procedure
Through a transverse incision the AC joint was demonstrated and the outer end of the clavicle excised and the capsule repaired.”[22]
[22]PCB 51
27 The plaintiff’s evidence was that this surgery was not successful.[23]
[23]Transcript (“T”) 24
28 By March of 2011 the plaintiff had returned to work on restricted hours and on light duties.[24]
[24]PCB 29
29 The plaintiff was predominantly working in office work. The plaintiff, in her evidence, stated that the office work was predominantly data-entry work at a basic level.[25] She went on to describe further activities of her office work as follows:
Q:“So virtually on the computer machine all the time?‑‑‑
A:A lot of my duties included going and collecting workers from different parts of the factory and bringing them back to my factory. I spent a lot of time walking. There was set things I needed to do in the morning and a different times but at other times I was doing more of a go for type activities as well, not just data entry solidly all day.”[26]
[25]T60
[26]T60, L20-26
30 By early February 2012, the plaintiff was reassigned to the process line packing bacon in boxes.[27] The plaintiff stated that when she was returned to the process line, her shoulder symptoms flared up again.[28] The plaintiff was then asked:
[27]PCB 29
[28]T61
Q:“Otherwise, I suggested to you before, if you stayed in the data processing you probably could have managed that, certainly on a part-time basis?‑‑‑
A:Yes.
Q:And maybe even a full-time basis?‑‑‑
A:Yes, possibly.”[29]
[29]T61, L4-7
31 The plaintiff later clarified that she did not think she could work full-time hours in an office job.
32 As a result of her increased symptoms once she had changed to the process line, the plaintiff ceased working with the defendant on 23 February 2012.[30]
[30]PCB 30
33 On 21 June 2013 and 2 July 2013, the plaintiff had cortisone injections administered by her general practitioner.[31]
[31]PCB 30 and PCB 48
34 In the year 2013, the plaintiff attended and successfully completed a horticulture course at the Bendigo TAFE.[32]
[32]PCB 32
35 On 24 February 2014, the plaintiff returned to work as a dishwasher, in the initial stages for 15 hours per week. Her work was with J L King & Co. The plaintiff continued in her work with J L King & Co in salad packing and other process-line work until 22 March 2015.[33]
[33]Exhibit P2 and PCB 35
36 Whilst in the employ of J L King & Co, the plaintiff had an injection into the subacromial space of her right shoulder on 1 August 2014.[34]
[34]PCB 48
37 In her evidence, the plaintiff stated that the reason that she ceased work at J L King & Co was that she had been put off because she was taking too many days off due to pain. The plaintiff’s evidence was:
Q:“Why did it finish?‑‑‑
A:They said that I had taken too many days off and also that work had declined because it was no longer the busy season and they had to decide on who to put off and they decided that on account I’d had so many days off and was doing so few hours that they would terminate myself.
Q:Why were you doing so few hours?‑‑‑
A:When I tried to do more hours I was in so much pain and was taking so many painkillers that I was actually drowsy so I was unable to work longer.”[35]
[35]T16, L26-31 – T17, L4
38 Later on in her evidence, the plaintiff stated that she had been working Mondays, Wednesdays and Fridays at J L King & Co. She agreed that on occasions, she would also work on a Thursday.[36] The plaintiff stated that she could continue her work as long as she ingested six Panadol Osteo and three Brufen per day.[37]
[36]T43
[37]T43
39 The plaintiff also stated that when she left employment with J L King & Co, her father was living with her. Her father at that time had terminal multiple myeloma and was being cared for by the plaintiff. The plaintiff stated that she was nursing him but that he had actually returned to his partner in more recent times.[38] At the same time, the plaintiff has also been caring for her disabled daughter.
[38]T58
40 I find that at the time that the plaintiff ceased her employment with J L King & Co, that a number of factors, including a seasonal downturn in the amount of work at J L King & Co, the plaintiff’s dedication to the care of her terminally ill father and other domestic pressures were a substantial influence on her decision to cease work at J L King & Co. I accept that she had some pain in her shoulders as a result of the injury but I do not accept that the pain in the shoulders was the reason for her to cease working at J L King & Co.
The medical opinions
The Plaintiff’s doctors
Dr G Rowland, General Practitioner
41 Dr Rowland prepared six medical reports in respect of this application.
42 In his first report dated 29 March 2011, Dr Rowlands’ opinion was that he expected the plaintiff would have a gradual return to full hours over the next four to six months. Right shoulder pain and stiffness is restricting recovery.[39]
[39]PCB 42
43 In his report dated 30 March 2012, Dr Rowlands’ opinion at that time was that the plaintiff was currently capable of clerical-type light duties only. She may well be capable of production line work in the future but her introduction to these duties would need to be performed slowly.[40]
[40]PCB 46
44 In his report dated 26 February 2013, Dr Rowlands stated that after the plaintiff’s surgery and review in November of 2012, the plaintiff did not require any further surgery to her right shoulder. He stated:
“… Mrs Gulbin’s right shoulder pain, although persistent, has improved and she is contemplating reentry into the workforce.”[41]
[41]PCB 47
45 On 28 November 2014, Dr Rowlands reported:
“Mrs Gulbin’s shoulder[s] have continued to cause low grade pain, and are exacerbated by her part time work duties.”[42]
[42]PCB 48
46 Dr Rowlands noted that he had performed subacromial space injections to both shoulders on 21 June 2013 (right side), 2 July 2013 (left side) and on 1 August 2014 (right side).[43]
[43]PCB 48
47 In more recent times, and in particular on 23 April 2015, Dr Rowlands stated that the plaintiff’s bilateral shoulder pain is worse after a day’s work. Dr Rowlands stated that he had prescribed a narcotic slow-release patch for the pain but that treatment was discontinued. He then substituted that treatment for a shorter-acting narcotic called Palexia. Predominantly this medication was for the control of the plaintiff’s pain so that she could sleep more readily.[44]
[44]PCB 49
48 In terms of the plaintiff’s work capacity, Dr Rowlands stated that the plaintiff was restricted to light duties. In his opinion, the plaintiff was unable to work full hours. He then stated:
“… I concur with her self assessed capacity of 15 hours per week, 5 hours per day. … .”[45]
[45]PCB 49
49 In his final report dated 2 May 2015, Dr Rowlands confirmed his opinion that the plaintiff was restricted to a work capacity of 15 hours per week. In confirmation of that last report, exhibit P5 certifies the plaintiff as being fit for modified duties for 15 hours per week with limitations as set out in the Certificate of Capacity.
Mr Andrew McQueen, Orthopaedic Surgeon
50 Mr Andrew McQueen prepared three reports dated 21 December 2010 (the operation report), 19 April 2012 and 14 February 2013.
51 In his final report dated 14 February 2013, Mr McQueen stated that he had not seen the plaintiff since 11 December 2012. He noted in the course of that consultation, that the plaintiff was no longer working and had found that the various activities around her farm were restricted.[46]
[46]PCB 55
52 Mr McQueen’s opinion is of little assistance to me as he has not seen the plaintiff for nearly two-and-a-half years.
Mr Peter L Moran, Orthopaedic Surgeon
53 Mr Moran was asked to examine the plaintiff for the purposes of an impairment assessment in respect of her left and right shoulders. He prepared a report dated 7 April 2014.
54 In respect of the plaintiff’s employment capacity, Mr Moran stated as follows:
“She will remain limited in terms of future employment opportunities, in that any movement and particularly lifting at chest height or above will provoke further pain in her shoulders. She also remains vulnerable to stresses on her upper limbs as a result of a chronic neck strain.”[47]
[47]PCB 76
55 Mr Moran’s opinion as expressed above is of little assistance to me in determining the plaintiff’s current work capacity. It does however confirm the restrictions placed upon the plaintiff in the workplace. In short, the plaintiff is capable of doing light duties.
Dr Robyn Horsley, Occupational and Rehabilitation Physician
56 Dr Horsley prepared a report dated 16 February 2015 for medico-legal purposes in this case.
57 Dr Horsley noted that the plaintiff was currently working 15 to 28 hours per week. Dr Horsley stated that the plaintiff had been in that employment for approximately one year.[48] Dr Horsley took a history from the plaintiff concerning her training and work experience. Dr Horsley noted that the plaintiff had completed a course in office administration and a Certificate in Horticulture in 2013.[49] Dr Horsley reviewed all the radiological evidence and the other medical opinions.
[48]PCB 78
[49]PCB 78
58 In Dr Horsley’s opinion, the symptoms to the right shoulder would persist into the foreseeable future. She noted that the plaintiff had a bilateral shoulder disability.
59 Dr Horsley also noted that the plaintiff was working within her work restrictions and worked generally around 15 hours per week but occasionally she could work up to 28 hours per week. Dr Horsley noted that the plaintiff believed that she was working at capacity. In Dr Horsley’s opinion, for the plaintiff’s hours to increase, the plaintiff would need to be working in an office space environment with minimum manual handling.[50]
[50]PCB 84
Dr Clayton Thomas, Consultant in Rehabilitation and Pain Medicine
60 The plaintiff was examined by Dr Clayton Thomas for the purpose of medico-legal reporting. Dr Thomas prepared a report dated 11 September 2014 and noted as follows:
“The prognosis is for ongoing pain and disability affecting the shoulders. Her problems do not appear to be degenerative nor progressive in nature.
She is fit for alternate light duties. The primary objective here is to avoid working beyond 30o of flexion or abduction of her shoulder. Objects lifted close to the body which do not require lifting to shoulder height or the like would be reasonable. She continues to work 15 hours per week. She works in a salad company where her duties, although repetitive, are light for her. I think with respect to maximum hours worked per week, she could work more than this. I think she could work in the vicinity of five hours, five days per week doing such light duties.”[51]
[51]PCB 88
Evidex Report prepared by Ms Suzanne George, Occupational Therapist
61 Ms George prepared a 23-page report dated 12 March 2015. Two pages of the report were blank.[52]
[52]PCB 107 and PCB 108
62 Ms George’s conclusion is follows:
“I conclude that no unrestricted recognised occupation in the open labour market for which Ms Gulbin is likely to qualify is suitable following her injuries.”[53]
[53]PCB 109
63 Ms George considered the following occupations in forming her opinion about the plaintiff’s incapacity to work:
§ Checkout operator
§ Sewing machinist
§ Biscuit factory worker
§ Cook
§ Kitchenhand
§ Service station console operator
§ Commercial cleaner
§ Commercial housekeeper
§ Winery cellar hand
§ Landscape gardener
§ Nursery person
§ Café worker
§ Mail clerk
§ Fast food cook
§ Domestic cleaner
§ Laundry person
§ Food process worker
§ Ticket collector.
64 I do not accept that Ms George has properly and fully examined, in a realistic way, the residual capacities for work that the plaintiff retains. The conclusion that the plaintiff has in effect no residual work capacity is against the weight of the rest of the evidence in this case.
The Defendant’s medical evidence
Dr Malcom Brown, Occupational Physician
65 The plaintiff was examined by Dr Malcolm Brown for the purpose of medico-legal reporting. Dr Brown prepared four reports dated 5 February 2013, 8 April 2015, 22 April 2015 and 19 May 2015.
66 In his first report dated 5 February 2013, Dr Brown stated that the plaintiff had a capacity to return to appropriate work now. He went on to state that the plaintiff does not have the capacity to work as a food handler or packer, or as a factory worker where any significant manual work is required. She could work in a plant nursery, in the retail industry as a sales assistant or do office work.[54]
[54]DCB 6
67 In his second report dated 8 April 2015, Dr Brown gave the opinion that the plaintiff was able to do work. He stated:
“The vocational assessment report from November 2012 lists job options of garden labourer/horticultural nursery assistant, factory worker in food and drink, retail sales assistance, office administration work, and food handling/packing. Ms Gulbin would have difficulty with heavy manual tasks such as packing or handling items of significant weight. In general she has capacity to do most of the jobs in the vocational assessment report provided, unless heavy tasks were involved in factories and packing.”[55]
[55]DCB 11
68 In his report dated 22 April 2015, Dr Brown clarified the plaintiff’s capacity as follows:
“Ms Gulbin does have physical capacity to undertake each of the jobs listed in the vocational assessment report. Hand packing work of light items is suitable if self-paced, and the other jobs do not involve any significant manual tasks.”[56]
[56]DCB 12
69 In his final report dated 19 May 2015, Dr Brown stated that his opinion was that the plaintiff was able to engage in the vocational assessment report employment on a full-time basis. His caveat was that in the hand-packing tasks, she was to deal with light items and work self-paced. Otherwise, she could carry out all of the other jobs listed in those reports.[57]
[57]DCB 12A
Mr Peter Scott, Consultant Surgeon
70 Mr Peter Scott examined the plaintiff for impairment assessment purposes on behalf of the defendant. He prepared a report dated 1 July 2013.
71 In respect of the issue that I have to decide in this case, Mr Scott’s report is of little assistance.
Mr Michael Dooley, Orthopaedic Surgeon
72 Mr Michael Dooley examined the plaintiff on behalf of the defendant for medico-legal reporting purposes. He prepared three reports dated 16 April 2015, 23 April 2015 and a handwritten report dated 19 May 2015.
73 In his first report dated 16 April 2015, Mr Dooley stated:
“From an orthopaedic point of view, Mrs Gulbin has a physical capacity to carry out light physical work and clerical work. She would have difficulty carrying out regular heavy physical work and work that involved a lot of activity at and above shoulder level.”[58]
[58]DCB 36
74 In his report dated 23 April 2015, Mr Dooley stated that the plaintiff currently worked 15 hours per week in a fruit and vegetable business. The history Mr Dooley had was that that work involved packing light items onto shelves and packaging salads et cetera. He concluded that the plaintiff had the physical capacity to carry out work as a hand packer. He went on to say that the plaintiff would have the physical capacity to work as a production clerk, an enquiry clerk, customer service officer and a welfare support officer.
75 Mr Dooley noted that the plaintiff’s home life would not be straightforward in terms of looking after her daughter with a disability and also attending to her father.[59]
[59]DCB 37
76 In a letter to Mr Dooley from the defendant’s solicitors dated 19 May 2015,[60] Mr Dooley was asked the following question:
“Taking into account the worker’s physical capacity only, your opinion on whether the worker is capable of working full time or part time in the roles of production clerk, inquiry (sic) clerk, customer service officer and welfare support officer? If part time, please state how many hours per week the worker is currently capable of working.”
[60]Exhibit P6
77 Mr Dooley, in response to that question, stated as follows:[61]
“I believe that Mrs Gulbin has the physical capacity to work as a production clerk, inquiry (sic) clerk, customer service officer and welfare support officer. As noted previously she would need to avoid heavy physical work and a lot of activity at and above shoulder level. She has the physical capacity to increase her current hours on a graduated basis to at least half time.”
[61]DCB 37A
78 Mr Dooley, whilst taking a history from the plaintiff that she lived on a farm, did not take any history as to the amount of work and hours of work that the plaintiff performed each week in relation to the farm work.
Ms Robyn Willett, Employment Placement Consultant – Recovre Report
79 Ms Willett noted that the plaintiff had completed Year 9 at Cohuna High School in Victoria and left halfway through Year 10 to commence employment. Subsequent to that education, the plaintiff underwent the following training:
· 2000 Certificate II in Computers at the Adult Learning Centre in Gisborne
· 2000 Certificate I in Computers at the Adult Learning Centre in Gisborne
· 2000 Certificate II in Office Management at the Adult Learning Centre in Gisborne
· 2001 MYOB training
· 2006 Real Estate Representative Course, REIV
· 2013 Certificate III in Horticulture at the Bendigo TAFE.[62]
[62]DCB 50
80 In her report, Ms Willett identifies that the plaintiff is capable of performing full-time work as a hand picker. The average gross salary for that employment is $800 per week.[63] Ms Willett also identifies the plaintiff as being capable of performing a production clerk job on a full-time basis with the average weekly gross wage of $1,035.00.[64]
[63]DCB 55
[64]DCB 37
81 Ms Willett also assesses the plaintiff as being capable of performing an enquiry clerk-customer services officer role on a full-time basis with the average weekly gross wage of $960.00.[65]
[65]DCB 59
82 Ms Willett also was of the opinion that the plaintiff could perform duties as a welfare support worker after appropriate training, with a salary range of $950.00 gross per week to approximately $1,300.00 gross per week.[66]
[66]DCB 61
83 It was clear on the evidence, and in particular in exhibit D2, that the defendant is prepared to pay for the training for the plaintiff to be able to qualify for the welfare officer employment.
Loss of earning capacity
84 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, she must establish that:
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b) after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
85 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(c) “without injury” earnings; and
(d) “after injury” earnings.
86 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a 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.
87 The parties agree that the “without injury” earnings for the plaintiff are $46,800 gross per annum. The relevant threshold of 60 per cent is therefore $28,080.00 gross per annum. Expressed in another way, this is $540.00 gross per week.
88 It is clear on the evidence that the plaintiff was able to work at J L King & Co on average between 15 to 20 hours per week prior to her ceasing employment there.[67]
[67]Exhibit P2
89 At the time the plaintiff was working those hours at J L King & Co, she was also looking after her father, who was suffering from cancer. In her evidence, she stated that she would spend two hours per day directly looking after her father.[68]
[68]T59
90 The plaintiff also stated that she spends 10 to 12 hours per week actively working on her farm.[69] These hours of work on the farm are the hours she works since her injury and the operation to her right shoulder. I note that her father’s condition has stabilised to the extent he no longer lives with the plaintiff and that she no longer needs to do that work.
[69]T63
91 In assessing the plaintiff’s capacity for work and her earning capacity, it is appropriate to take into account the amount of work that she was able to do, together with the other work, including caring for her father and the farm work. In making that assessment, the plaintiff was working 15 to 20 hours per week at J L King & Co. She was also working approximately 10 hours per week directly looking after her father, and at the same time, she was also spending 10 to 12 hours per week working on the farm herself. That is a total of 35 to 40 hours of work per week.
92 I have not taken into account the time or effort required of the plaintiff in looking after her disabled daughter. In her evidence, the plaintiff stated that she worked some 14 hours per day looking after her daughter, Clare.[70] I do not take that in a literal sense and assume the plaintiff was referring to all of the time her daughter was at home that she was caring for her. As I understood it, her daughter attended at a day centre.
[70]T50
93 Based on that demonstrated work capacity from the plaintiff’s own actions and statements, I find that she is capable of working full-time hours in suitable employment. The suitable employment referred to are the jobs of hand picker, production clerk, customer service officer and welfare support officer.
94 The gross incomes of each of those areas of suitable employment exceed the $540.00 gross per week that represents the threshold for the plaintiff to succeed in this case.
95 In arriving at this conclusion, I have taken into account all of the medical evidence in this case. I note that the general practitioner, Dr Rowlands, has been certifying the plaintiff suitable for modified duties which is described as light duties, a limit of 3 kilograms, occasionally up to 3 kilograms, and no work at or over shoulder height. This certification was changed on 14 May 2015 when he added the 15 hours per week limit. Up until that Certificate of Capacity,[71] the plaintiff had been certified with the same restrictions but without the hourly limit.
[71]Exhibit P5
96 The plaintiff has not looked for employment since she ceased work at J L King & Co. In her evidence, she stated that depression and anxiety were the cause of her not looking for work at the moment.[72] This depression and anxiety was not linked to, or caused by, the physical injury of the right shoulder and left shoulder to the plaintiff. This evidence from the plaintiff does however provide an explanation as to why she has not sought employment since ceasing work at J L King & Co.
[72]T62
Right shoulder injury or bilateral shoulder injury
97 For the purposes of deciding this case, it has not been necessary to determine whether the loss of body function is to the plaintiff’s right shoulder or is a bilateral shoulder injury. It is clear on the medical evidence that the right shoulder is the more severely injured of the plaintiff’s shoulders. The right shoulder is the only shoulder that has been operated on. It is clear also that both shoulders have had injections applied to them by medical treaters.
98 The defendant made submissions to me that the authority of Lu v Mediterranean Shoes Pty Ltd[73] precludes a finding that a loss of body function can include both shoulders. The plaintiff’s representative submitted that a bilateral shoulder injury is a loss of body function but submitted there was no definitive authority on the issue.
[73](2000) 1 VR 511
99 In assessing the incapacity of the plaintiff to perform work, I have relied upon the medical opinions which have assessed the plaintiff’s injury as relating to the operational use of both of her shoulders. WorkSafe Victoria, on behalf of the defendant, has admitted that the injury to both shoulders satisfies the pain and suffering test.[74]
[74]Exhibit P4
100 For the reasons set out above, I have found that the plaintiff has failed to establish on the balance of probabilities that she has suffered a 40 per cent reduction in her earning capacity as a result of the injuries to her shoulders.
Conclusion
101 The plaintiff is granted leave to bring proceedings to recover damages for pain and suffering in respect of the right shoulder injury suffered in the course of her employment, and in particular on 1 September 2008. The defendant conceded that this was an appropriate order.[75]
[75]T10
102 I note for completeness that exhibit P4 is a Notice pursuant to s4, Part A of the WorkCover Litigated Claims Legal Costs Order 2010 setting out that WorkSafe Victoria is satisfied that the injury to the plaintiff incurred in the course of her employment and on 1 September 2008 to her left and right shoulder satisfies the requirements under s134AB(38)(b)(i) but not the requirements for s134AB(38)(b)(ii) of the Act.
103 For the reasons outlined in this judgment, the application by the plaintiff for leave to bring proceedings to recover damages for loss of earning capacity is dismissed. I will hear the parties on costs.
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