Hatton v Geemaz Management Pty Ltd
[2019] VCC 2179
•20 December 2019
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-05877
| DALE WILLIAM HATTON | Plaintiff |
| v | |
| GEETOY/GEEMAZ MANAGEMENT PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 3 and 4 April 2019 | |
DATE OF JUDGMENT: | 20 December 2019 | |
CASE MAY BE CITED AS: | Hatton v Geemaz Management Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2179 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left shoulder – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Richter v Driscoll [2016] VSCA 142; Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170
Judgment:Leave granted to bring proceedings for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R McCredie with Ms S A Lean | Ryan Carlisle Thomas |
| For the Defendant | Mr W R Middleton QC with Ms K Manning | Wisewould Mahony |
HIS 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 to his left shoulder in the course of his employment with the defendant on 21 May 2014 (“the injury”).
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).
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 left shoulder.
5 The plaintiff relied upon five affidavits sworn 7 August 2017, 23 April 2018, 30 August 2018, 10 September 2018 and 25 March 2019,[1] and gave viva voce evidence. He 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.
[1]Exhibit A
Outline of Section 134AB
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 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”.
9 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.
10 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.
11 Sub-sections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Sub-section (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 Sub-section (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] in reaching my conclusions.
[2](2005) 14 VR 622
Compensable physical injury
15 It is common ground that a compensable injury occurred in the course of the plaintiff’s employment on the date alleged when he was lying on his right side on the concrete floor in a pre-delivery shed, whilst using his left arm to forcibly remove plastic garnish off the lower edge of a Hyundai Santa Fe. He stated:
“… As I reefed the plastic I felt a pinch in my left shoulder. I have to pull with force so that the plastic clips holding the garnish is (sic) released. We take the garnish off so that we can apply the side steps.”[3]
[3]Exhibit A, affidavit 7 August 2017, paragraph 10, PCB 3
16 Thereafter, the plaintiff related:
“A short time after I felt the pinch, I developed burning pain in my left shoulder. I reported what happened in the injury register book. I finished the day and thought that with some rest the pain would go away. It got worse.”[4]
[4]Exhibit A, affidavit 7 August 2017, paragraph 14, PCB 3
17 Thereafter, the plaintiff came under the care of his local general practitioner, Dr Magill, who in turn referred him to orthopaedic surgeon, Mr Kevin Eng.
18 Prior to seeing Mr Eng, the general practitioner arranged for an x-ray and ultrasound of the plaintiff’s left shoulder on 10 June 2014, which, in essence, revealed an inflamed bursa. Thereafter, an ultrasound-guided injection was undertaken to the left shoulder on 16 June 2014. The plaintiff was also referred for physiotherapy.
19 Upon finding that the first injection “did not work”, the plaintiff was referred for a second ultrasound-guided injection, which he had on 31 July 2014. He stated he did not get any relief from the second injection and it was then that he was referred to Mr Eng.[5]
[5]Exhibit A, affidavit 7 August 2017, paragraph 16, PCB 4
20 Mr Eng arranged a third ultrasound-guided injection which the plaintiff undertook on 7 October 2014, and thereafter there was a follow-up assessment with Mr Eng in November 2017.
21 As there was not much relief from the third injection, Mr Eng arranged an MRI scan of the left shoulder on 29 November 2014. The comment attached to this MRI was as follows:
“1.AC joint arthropathy with synovial fluid, minor capsular bulging and thickening and subchondral cystic change/oedema. Inferolateral acromial bony lipping.
2.Fraying and thinning of the bursal surface supraspinatus finders at its mid third in keeping with low grade (less than 50% thickness) partial thickness bursal surface tear. Minor infraspinatus insertional tendinosis.
3.Crescentic shaped subcortical region of high signal which have features suggesting subchondral subcortical fracture however there is no marrow oedema present identified. It may be worthwhile considering correlative targeted CT.”[6]
[6]PCB 84-85
22 Following this assessment, Mr Eng arranged a fourth ultrasound-guided injection, which was performed on 11 December 2014. As there was only short‑term relief, Mr Eng thereafter recommended surgery.
23 Surgery was undertaken on 15 April 2015, following which the plaintiff underwent physiotherapy. The surgery was an AC joint excision and subacromial decompression.[7]
[7]Exhibit A, affidavit 7 August 2017, paragraph 19, PCB 4
24 The plaintiff related he had a good result from the shoulder surgery, but over time, he noticed increasing pain and clicking in the shoulder. He was off work for about nine weeks and then commenced a gradual return to work.
25 Mr Eng arranged a CT scan and x-ray of his left shoulder which was performed on 6 August 2015. Mr Eng told the plaintiff he thought he had “an unstable shoulder”.[8]
[8]Exhibit A, affidavit 7 August 2017, paragraph 22, PCB 5
26 Following a further x-ray of the left shoulder on 14 August 2015, the plaintiff still had clicking and pain in his shoulder, and Mr Eng arranged a fifth ultrasound-guided injection with cortisone. The plaintiff related he did not get much relief therefrom and he had ongoing “… pain and grinding in my shoulder. I felt a lot of pain when I would put my arms across my chest. I felt my shoulder was very unstable.”[9]
[9]Exhibit A, affidavit 7 August 2017, paragraph 23, PCB 5
27 As a consequence, the plaintiff returned to Mr Eng, who in turn advised him to undergo reconstruction of the left shoulder, which was performed on 11 November 2015. Mr Eng described the surgery as a reconstruction of the coracoclavicular ligament.[10]
[10]Exhibit E, PCB 107
28 Thereafter, the plaintiff had “less pain and occasional clicking … but still had a lot of restrictions and had to be careful”.[11]
[11]Exhibit A, affidavit 7 August 2017, paragraph 24, PCB 5
29 Following this surgery, the plaintiff was off work for about nine weeks and then returned again on a graduated basis performing restricted duties.[12] As at August 2017, he was working full-time hours on modified duties. Those restrictions consisted of “… no lifting above 5 kg above head height, no lifting more than 15 kg, no sustained overhead work and no repetitive work”.[13]
[12]Exhibit A, affidavit 7 August 2017, paragraph 26, PCB 5
[13]Exhibit A, affidavit 7 August 2017, paragraph 27, PCB 6
30 In his second affidavit sworn 23 April 2018, the plaintiff stated he continued to attend his general practitioner, Dr Magill, as required for his left shoulder and he was taking pain relief medication, including Nurofen.[14]
[14]Exhibit A, affidavit 23 April 2018, paragraph 6, PCB 50
31 At that time, he was continuing to work full-time with the defendant on modified duties, but by the end of the day, he felt an ache in his left shoulder. At this time, he had had the past nine weeks off work due to a left shoulder injury, but was hopeful to return to full-time modified duties as of 30 April 2018.[15]
[15]Exhibit A, affidavit 23 April 2018, paragraph 15, PCB 51
32 In his fourth affidavit, sworn 10 September 2018, the plaintiff swore that he was certified unfit for work by his general practitioner in February 2018 due to the shoulder injury. He had been referred back to see Mr Eng, who in turn advised that there was no further surgical option and he was referred by Mr Eng to “Pain Matrix”.[16]
[16]Exhibit A, affidavit 10 September 2018, paragraph 17, PCB 61
33 In his fifth and final affidavit sworn 25 March 2019, the plaintiff expanded on the certification by his general practitioner in February 2018 as follows:
“… My shoulder flared up when I reached down to release a handbrake from a car. Following this, I went back to my GP, who certified me unfit to work. Prior to this, I was doing automotive checking. This involved checking over the car to make sure it was safe. For example, I had to check the tyre pressure, wheel nuts and oil levels. The work was still physical and I found it difficult, even prior to my flare-up.”[17]
[17]Exhibit A, affidavit 25 March 2019, paragraph 5, PCB 69
34 The plaintiff commenced on weekly payments of compensation thereafter, and at the time of hearing of this application, was still in receipt of same.
Treatment
35 In or about November 2018, the plaintiff started attending Pain Matrix. He consulted various different specialists, including a pain specialist, physiotherapist, occupational therapist, counsellor and psychologist.[18]
[18]Exhibit A, affidavit 25 March 2019, paragraph 6, PCB 69
36 He was currently having ongoing treatment with the physiotherapist, Meghan Dean, and pain specialist, Dr Nash. He understood that this treatment would be continuing.[19]
[19]Exhibit A, affidavit 25 March 2019, paragraph 7, PCB 69
37 In addition to this, he was continuing to see his general practitioner, Dr Magill, usually every four weeks. He was also taking Nortriptyline, 10 milligrams once a day, and over-the-counter painkillers as needed, but regularly.[20]
[20]Exhibit A, affidavit 25 March 2019, paragraph 8, PCB 69
38 It is common ground between the parties that the outcome from these two lots of surgery is less than optimal and that there has been incomplete recovery, such that the plaintiff is still having limited movement and difficulty with physical tasks involving the use of the left arm, and suffers from a degree of pain and loss of enjoyment of life.
39 The treating surgeon, Mr Eng, in a letter to the general practitioner dated 2 July 2018, stated:
“Dale’s injection, if anything make him more sore for a week and has not led to any improvement. Unfortunately, I think we need to accept that surgery has been a failure and I will refer him to the Pain Matrix.”[21]
[21]PCB 108.1
The issues
40 The defendant concedes the plaintiff suffered an injury to his left shoulder on 21 May 2014, but does not concede that such injury meets the requirements of sub-paragraph (a) of the definition of “serious injury” referred to above.
41 The defendant concedes the plaintiff suffered a compensable injury as outlined, but disputes that the threshold has been met with respect to economic loss and does not concede the threshold with respect to pain and suffering.
42 The defendant does not dispute that the plaintiff has been left with a permanent impairment as a result of the compensable injury, but submits he is fit for full-time alternative duties such that the legislative program outlined above prevents orders being made in his favour.
Pre-injury work history
43 The plaintiff was born in December 1972 and is aged forty-six. He attended Corio Technical School, but did not complete Year 12.
44 Between 2009 and 2011, the plaintiff attended Gordon TAFE and obtained qualifications as a rigger, a licence in mobile cranes, a forklift licence and a licence in working with booms and elevated platforms.
45 Previously, he had worked as a machinist in a sewing factory, and then for a wrecker in the automotive industry.
46 The plaintiff also travelled to Western Australia where he worked as a fitter/trades assistant in a mine, and also did some truck driving and mechanic work for about a year.
47 The plaintiff then returned to Geelong and worked for an ammunition factory for about two years and thereafter worked through Skilled Engineering, a labour hire agency, for about four years.
48 The plaintiff then worked as an automotive fitter for Rex Gorell Motors in Geelong for about three years. Thereafter, he was a trades assistant at the Shell Refinery in Geelong for about two years.
49 The plaintiff commenced with the current defendant in about July 2012 as an automotive checker on a full-time basis, 38 hours per week. His job was to fit accessories to new cars and he was often required “… to get in awkward positions, work above head height whilst weight-bearing and do a lot of heavy lifting”.[22]
[22]Exhibit A, affidavit sworn 7 August 2017, paragraph 5, PCB 2
Post-injury work history
50 Following injury on 21 May 2014, the plaintiff underwent the treatment referred to above.
51 Following surgery on 15 April 2015 and 11 November 2015, the plaitniff was off work for approximately nine weeks on each occasion. He thereafter returned to work on a graduated basis performing restricted duties.[23]
[23]Exhibit A, affidavit sworn 7 August 2017, paragraph 26, PCB 5
52 As at 7 August 2017, the plaintiff was working full-time hours with the defendant on modified duties. The restrictions were “… no lifting above 5 kg above head height, no lifting any more than 15 kg, no sustained overhead work and no repetitive work”.[24]
[24]Exhibit A, affidavit sworn 7 August 2017, paragraph 27, PCB 6
53 Although the defendant was then currently accommodating these restrictions, the plaintiff swore that he was unable to pursue work as a rigger or a trades assistant, the latter being activities that he was previously engaged in.[25] This was not contested by the defendant.
[25]Exhibit A, affidavit sworn 7 August 2017, paragraph 28 PCB 7
54 In his second affidavit sworn 23 April 2018, the plaintiff swore that he had had the past nine weeks off work due to his left shoulder injury, but he had expected to return to full-time modified duties as at 30 April 2018.[26]
[26]Exhibit A, affidavit sworn 23 April 2018, paragraph 15, PCB 51
55 The plaintiff further swore that he was suffering pain in his left shoulder on a daily basis and that he had regular flare-ups that left the shoulder pain at up to 7 out of 10. He swore the flare-ups often come in blocks and last a week or two before they settle down, and when he has such a condition, he has to take more pain relief.[27]
[27]Exhibit A, affidavit sworn 23 April 2018, paragraph 7, PCB 50
56 The plaintiff swore that his left shoulder is weak and he relies heavily upon his right arm to undertake many activities. He had difficulty pushing, pulling and lifting, particularly out from his body with his left arm.[28]
[28]Exhibit A, affidavit sworn 23 April 2018, paragraphs 8 and 9, PCB 50
57 The plaintiff further swore that he was now limited in the work he could undertake and he had to be very careful about lifting and using his left arm.[29]
[29]Exhibit A, affidavit sworn 23 April 2018, paragraph 16, PCB 51
58 In his fifth affidavit sworn 25 March 2019, the plaintiff swore that when he was at work doing his full-time modified duties, he suffered a flare-up (in February 2018) when he reached down to release a handbrake from a car. He was subsequently certified unfit for work by his general practitioner. The plaintiff swore:
“… Prior to this, I was doing automotive checking. This involved checking over the car to make sure it was safe. For example, I had to check the tyre pressure, wheel nuts and oil levels. The work was still physical and I found it difficult, even prior to my flare up.”[30]
[30]Exhibit A, affidavit sworn 25 March 2019, paragraph 5, PCB 69
59 The plaintiff further swore he had not worked since February 2018 and his employment was terminated in late 2018.[31]
[31]Exhibit A, affidavit sworn 25 March 2019, paragraph 9, PCB 70
60 Following his termination, the plaintiff attempted a number of avenues to return to work and he swore thus:
“10.I did a basic week-long computer course last year, however I found it difficult and it caused an increase in pain. I found it hard to sit for long periods and to type for long periods. I am still not confident about using computers.
11.I also started an Occupational Health and Safety Course last year, however I was unable to finish this, as I found it too academic and I could not cope with the demands of the course. When it came to handing in an assignment, I had to withdraw, as I felt that it was beyond me.
12.I am currently doing a Food Handling Course, however I am not confident that this will assist me in finding work. In theory, it will train me to become a waiter, however I do not believe I can lift heavy trays or plates of food on a regular basis. I also find the repetitive use of my arms to cause an increase in pain. I therefore do not believe I will be able to work in the food service industry in any consistent or reliable way.
13.I have made some attempts to find work, however I have not been successful to date. For example, I applied for a position as a meter reader, however I received a response stating that I was not progressing to an interview. Now produced and shown to me, exhibited hereto and marked with the letters ‘DH6’ is a copy of the email response dated 12 December 2018.
14.I have also asked around and tried to find work through word of mouth. Unfortunately, when I disclose my injury and restrictions, this has not led to any job opportunities.
15.I have been contacted through Seek by potential employers, however I have not been able to pursue the opportunities, as I am no longer capable of physically demanding work. For example, TJM Geelong suggested the role of Automotive Electrician and Motor Accessory Fitter to me, however I do not believe I can perform this role. I therefore did not pursue this opportunity. Now produced and shown to me, exhibited hereto and marked with the letters ‘DH7’ is a copy of the email from Seek dated 8 October 2018.
16.I would like to find work, however I do not believe I can work full time. I also believe I can only work every second day, so that I can have time to rest my shoulder. In light of my background, difficulties learning, work history, education and injury, I believe my employment options are now very limited.”[32]
[32]Exhibit A, affidavit sworn 25 March 2019, paragraphs 10-16, PCB 70-71
61 As to the state of his left arm at the time of hearing, the plaintiff swore:
“… I still have constant pain, limited movement and reduced strength in my left arm.
…
My left shoulder continues to cause me ongoing pain and restriction and I find it difficult to cope with the limitations I experience. … .”[33]
[33]Exhibit A, affidavit sworn 25 March 2019, paragraphs 17 and 19, PCB 71
Pre-injury capacity for work
62 It is common ground that as a trades assistant working at the Shell Refinery, the plaintiff earned $75,000 in the financial year ending 2011.
63 Thereafter, as the Shell Refinery was gradually closing down, he earned less money in the financial year 2012, but within that year, he obtained a Certificate in Rigging from the Gordon Institute in Geelong in order to boost his potential earnings.[34]
[34]Exhibit A, affidavit sworn 30 August 2018, paragraph 2, PCB 53
64 The plaintiff further swore:
“If it was not for the injury I sustained to my left shoulder my intention was to apply for work as a rigger at the Shell Refinery now known as Viva. Now produced and shown to me and marked with the letters ‘DH3’ is ‘my submissions’ in relation to myself obtained from the UGL website which is a labour hire contractor used by Viva listing all positions I have applied for at the refinery.”[35]
[35]Exhibit A, affidavit sworn 30 August 2018, paragraph 3, PCB 53
65 The plaintiff also swore that he withdrew applications as a casual rigger and casual trades assistant which had been lodged on 7 and 8 May 2015 respectively due to his left shoulder injury.[36]
[36]Exhibit A, affidavit sworn 30 August 2018, paragraph 4, PCB 53
66 In addition, in his fourth affidavit sworn 10 September 2018, the plaintiff outlined his previous work history as a trades assistant whilst working in Western Australia and Townsville.[37]
[37]Exhibit A, affidavit sworn 10 September 2018, paragraphs 3 and 4, PCB 59-60
67 Also in that affidavit, he swore that he undertook a course of study to become a rigger “as it was a better paying job than that of a Trades Assistant”.[38]
[38]Exhibit A, affidavit sworn 10 September 2018, paragraph 9, PCB 60
68 Further, in November 2012, he applied for a job at the refinery as a rigger, but was not successful with this application.[39]
[39]Exhibit A, affidavit sworn 10 September 2018, paragraph 10, PCB 60
69 The plaintiff swore that it was his aim to get work at the refinery with the new operator as he wanted to stay in the Geelong area. The new operator purchased the Shell Refinery in or about 2014.[40]
[40]Exhibit A, affidavit sworn 10 September 2018, paragraph 11, PCB 60
70 The plaintiff also swore that if he had returned to work as a trades assistant, he would not be earning less than the sum of $75,000 gross and believed that as a rigger he could be earning $100,000 gross per annum.[41]
[41]Exhibit A, affidavit sworn 10 September 2018, paragraphs 14 and 15, PCB 61
71 On this evidence, it would appear that the threshold amount pursuant to s134AB(38)(e) was $45,000 with respect to a trades assistant, and $60,000 with respect to a rigger.
Post-injury capacity
72 Following his second operation in November 2015, the plaintiff earned between $33,000 and $40,000 from 2016 until June 2018.
73 If these figures represented a fair indication of the plaintiff’s post-injury capacity, he would still be within the threshold of a pre-injury trades assistant earning $75,000 per annum.
The Defendant’s medical evidence
74 Exhibit 1 was a report by Dr Majid Rahgozar, consultant occupational physician, dated 12 October 2015.[42] Clearly, this was a report which predated the second operation. In any event, although Dr Rahgozar considered the plaintiff could return to pre-injury hours, he was not sanguine about returning to pre-injury duties because of a potential surgical operation on the left shoulder for AC reconstruction. At that time, he thought he should avoid using his arm at or above shoulder level, and for lifting, pulling, pushing, carrying any objects above 10 kilograms, even below the shoulder level. He thought he should avoid using his left hand for any full forced pulling, pushing and grabbing heavy objects.[43] It was also his opinion that the condition should be reviewed about two to three months after potential surgical operation on the left shoulder for AC reconstruction.[44] Apparently, no such review was undertaken by this doctor.
[42]Exhibit 1
[43]Defendant’s Court Book (“DCB”) 7
[44]DCB 8
75 The second report relied on was one by orthopaedic surgeon, Mr Gerald Moran, dated 11 August 2016.[45] Mr Moran considered that the compensable injury was one of aggravated left acromioclavicular joint arthropathy and that there was a permanent impairment of 19 per cent of his left upper extremity.[46]
[45]Exhibit 2
[46]DCB 3 and 4
76 The next report relied upon was one of Mr Ian Jones, orthopaedic surgeon, dated 21 December 2017. This report was tendered by the Plaintiff as Exhibit K. On examination of the left shoulder, Mr Jones noted:
“There was wasting of the left deltoid muscle in the left shoulder noted, compared with the right side … Subjectively there was tenderness in the area where the outer end of the clavicle had been excised, together with a slightly tender point in the subacromial region of his left shoulder.”[47]
[47]DCB 20
77 Further, Mr Jones stated:
“This patient presents with a history of soft tissue injury to his left shoulder and aggravation of a previously apparently asymptomatic degenerate left acromioclavicular joint. The latter two conditions have been surgically treated and have left the patient with a weak left shoulder with a restriction of shoulder movement.”[48]
[48]DCB 21
78 Finally, Mr Jones stated:
“Mr Hatton has no useful function in his non dominant left arm, at or above shoulder height. The patient generally has a reduced capacity to pull, push and lift using his left arm. Repetitive use of the left arm is not possible without the likelihood of aggravating his current symptoms.”[49]
[49]DCB 22
79 The next report relied upon was one by Dr Marcus Navin, occupational medicine physician, dated 18 January 2018.[50] On examination, he noted:
“… In active abduction, he was only able to manage 110 degrees of abduction and this was associated with a locking and if pushed beyond that point was associated with a change in the anatomy with a dimpling over the top of the shoulder and a sense of tethering which did not improve with any further motion.”[51]
[50]Exhibit 3
[51]DCB 26
80 In response to specific questions, Dr Navin stated:
“On a handgrip assessment, Mr Hatton has a capacity to be strong and lift. However, the stability and strength of his shoulder has not been formally assessed. It is appropriate that he has a standing distraction x‑ray to assess whether there is in fact any instability or subluxation of the shoulder joint under load. In the interim, it is reasonable that he have a limitation of 5 kg of lifting. He is fit otherwise for adapted and restricted duties as arranged for him.”[52]
[52]DCB 27
81 Further, he stated:
“There is the possibly that he has developed osteoarthritis around the shoulder joint given the passage of time. It would be reasonable to have a formal radiological review. I consider that his symptoms and condition are sustained, and have a consistent relationship to his accepted claim.”[53]
[53]DCB 27
82 Confusingly, at paragraph 10 of his report, Dr Navin stated: “Mr Hatton has already returned to his normal duties,”[54] which, of course, he had not, but then at paragraph 8, Dr Navin stated: “It is unlikely that Mr Hatton can return to his full and normal duties”.[55]
[54]DCB 29
[55]DCB 28
83 Further, the plaintiff was examined by Dr Joseph Slesenger, specialist occupational physician, who reported on 2 April 2018.[56] On examination, Dr Slesenger noted:
“… Mr Hatton attended on time. He interacted well. He provided a clear and consistent account of his injuries. His affect was normal, his eye contact was good. He appeared neat and kempt.”[57]
[56]Exhibit 4
[57]DCB 46
84 On examination of his left shoulder, Dr Slesenger noted, inter alia:
“● Palpation: there was tenderness over the lateral clavicle. The clavicle appeared to be displaced and a clunking sensation was noted at the distal end of the clavicle.
● Range of movements: there was crepitus around the acromioclavicular joint. Crepitus was also noted on abduction and internal and external rotation.
…
oAbduction: 90 degrees.”[58]
[58]DCB 47
85 With respect to the plaintiff’s efforts to return to alternative employment, Dr Slesenger noted:
“Mr Hatton advised that he remained in work performing modified duties and was allocated to quality assurance role, testing vehicles prior to delivery. He advised that this required him to drive the vehicle on to ramp, to inspect the under surface of the vehicle (manually checking nuts and bolts), to drive the vehicle on a 5 km test drive and to enter data into a formatted form on a clip board. He advised that he is continued to perform the role, working on a full-time basis and has not returned back to an installation role. He advised that he is struggling with this role due to a combination of difficulty forward reaching and over shoulder reaching as well as harassment from his supervisors.”[59]
[59]DCB 50
86 As to his employment history, it was noted that:
“… Mr Hatton has been employed since leaving secondary school and has been employed continually. He has worked in a variety of roles within Western Australia and Victoria, within the automotive industry (tyre fitter, automotive parts fitter) and general labouring within manufacturing. He has also worked as an HTV dump truck driver and a trade sales assistant within the refining industry. In addition, he has also worked as a machinist in a sawing factory. His longest period of employment was with his current employer with whom he has been working for 5 years.”[60]
[60]DCB 50
87 With respect to retained capacity for work, Dr Slesenger noted he had a capacity for work with restrictions, namely:
• “No push, pull, carry or lift over 5 kg.
• No over shoulder reaching.
• No sustained forward reaching.
• No fast repetitive shoulder tasks.”[61]
[61]DCB 51
88 It would appear that Dr Slesenger considered that manual work of the type that he had previously been engaged in was out of the picture. He stated:
“Accordingly, I am of the opinion that he would be able to return to work in an administrative or clerical role, although would require retraining. He could return to work in a light packing/light an assembly role (although, a job specific worksite assessment will be required to ensure that he meets the inherent job demands).
He could work as a meeter and greeter or in a quality assurance role within a light industry (e.g. food packaging). He could return to work in a call centre.
…
I am of the opinion that Mr Hatton may require retraining to re-enter the workforce in a customer service or administrative role. He may require retraining to upskill his customer service skills or telemarketing skills. I recommend that should retraining be considered, then a return to work coordinator should be appointed to address potential providers of upskilling courses.”[62]
[62]DCB 51
89 Thereafter, Dr Catherine Bones, consultant occupational physician, reported on 5 February 2019. She was retained “to obtain [a] clinical opinion about a vocational assessment”.[63]
[63]Exhibit 5
90 Dr Bones noted that the plaintiff was currently under the care of Pain Matrix and he had been looking for work. He had applied for a role as a gas meter reader but was not successful. He was uncertain as to what work would suit him best. He had commenced a Certificate IV in Occupational Health and Safety but found it too academic for him.[64]
[64]DCB 55
91 On examination of the left shoulder, there was wasting of the deltoid and biceps muscles of the left shoulder. There was a vertical, healed surgical scar over the anterior aspect of the left shoulder in the region of the acromioclavicular joint. Abduction was achieved to 50 degrees and elevation was achieved to 100 degrees.[65]
[65]DCB 56
92 In her clinical opinion, Dr Bones stated the plaintiff had persistent left shoulder pain and dysfunction of the left shoulder following the injury to that shoulder in the course of his employment, which had been surgically treated.[66] She also considered that the employment remained materially contributing to the left shoulder condition arising from the incident specified. Accordingly, she did not believe he was suitable to return to work in his pre-injury duties and hours.[67]
[66]DCB 57
[67]DCB 57
93 It was Dr Bones’ opinion that the plaintiff had a current work capacity for suitable employment which required the following restrictions:
• “Avoidance of use of the left (non-dominant) arm at or above shoulder height.
• Avoidance of repetitive or jarring actions with the left shoulder.
• Avoidance of awkward manual handling from floor to waist height with the left arm.
• Maximum 10 kg lift or carry weight, waist height only, using both hands.
• Avoidance of using the left arm outstretched in front of the body for sustained periods.”[68]
[68]DCB 58
94 Further, Dr Bones had reviewed the proposed suitable employment options listed in the occupational rehabilitation report by IPAR dated 18 June 2018.
95 With the exception of employment as a train conductor, Dr Bones considered that the job descriptions of spare parts interpreter, service and maintenance scheduler or planner, or vehicle inspector, would only be suitable if restrictions outlined could be accommodated.
96 As to the position of train conductor, Dr Bones stated: “… this role would appear to be within Mr Hatton’s current physical capacity” but did not outline what she understood those duties to be.[69]
[69]DCB 59
97 Further, Dr Bones stated:
“I was unable to identify any other types of employment, other than those presented, that I consider Mr Hatton would be capable of performing, either now or in the near future. … .”[70]
[70]DCB 59
98 For completeness, defence counsel tendered the IPAR report dated 15 May 2018 which had been the subject of Dr Bones’ comments.[71]
[71]Exhibit 6
99 Within the report, the authors had reference to a Certificate of Capacity issued by the treating general practitioner, Dr McGill, dated 12 April 2018 indicating the plaintiff had no capacity for employment up until 4 May 2018. Thereafter, there was a Certificate of Capacity indicating the plaintiff had capacity for employment from 25 May 2018 to 22 June 2018 with the following restrictions:
“Left shoulder pain constant unable to lift anything with left hand, weakness in left shoulder. Can work normal hours 8 hours a day Mon/Tues/Fri only.”[72]
[72]DCB 79
100 Also referred to was the report of Dr Marcus Navin dated 18 January 2018 to which I have already made comment. This was in relation to Dr Navin not having tested the strength of the left shoulder.
101 Finally, the authors state that they attended a case conference with Dr McGill on 18 May 2018, who advised that:
“… Mr Hatton has a capacity for new employment and feels he would be capable of working with pre-employer on restricted duties ‘Can work normal hours 8 hours a day Mon/Tues/Fri only.”[73]
[73]DCB 86
The Plaintiff’s medical evidence
102 Both counsel referred the Court to paragraph 96 of Giankos v SPC Ardmona Operations Limited,[74] which states:
“Expert opinion evidence must relates (sic) to matters which are wholly or substantially within the expert’s field of expertise. It follows that medical opinions about the suitability of particular employment for an injured worker should focus on the physical restrictions which a particular impairment imposes, rather than on whether the injured person is able to do a particular job. There is a danger that medico-legal experts will stray beyond their field of expertise, and give unqualified opinions about the jobs which can or cannot be done by the worker. Except where a medical practitioner has specialist occupational health and safety qualifications or experience, a medical opinion as to the work which an injured worker can perform may fall outside the doctor’s area of expertise. Mr Horton’s opinion that ‘he would have thought’ that the appellant was fit to return to forklift driving, comes close to transgressing this boundary.”
[74][2011] VSCA 121 at paragraph [96]
103 Accordingly, it would appear that Dr Bones’ opinion referred to above would be relevant, as indeed would that of contrasting occupational physician, Dr Robyn Horsley, who reported to the plaintiff’s solicitors on 4 March 2019.[75]
[75]Exhibit H
104 Dr Horsley considered that the plaintiff –
“… sustained a significant injury to his left shoulder on the 21st May 2014. He aggravated underlying pre-existing left shoulder AC joint arthropathy. …
…
Mr. Hatton presents with persistent loss of range of motion in the left shoulder girdle and low-grade pain. He is right hand dominant.
… .”[76]
[76]PCB 141
105 Dr Horsley considered that given the length of time since the injury and the ongoing nature of the symptoms, that they were likely to persist. She considered he was being well managed by Dr Jacqueline Nash at Pain Matrix. He was treatment compliant and undertaking a home exercise program daily for 20 to 30 minutes and walking alternate daily for one to two hours.[77]
[77]PCB 141
106 Dr Horsley opined:
“He presents with capacity for suitable employment. With his now 14 months out of the workforce, any return to work will need to be graduated in the first instance, in the vicinity of 15 to 20 hours per week with a gradual increase, depending upon his response and the critical physical demands of the role that he returns to. … .”[78]
[78]PCB 141
107 Dr Horsley considered that the following work restrictions would be prudent when considering his left shoulder:
• “Avoidance of repetitive over reaching;
• Avoidance of repetitive pushing and pulling;
• Avoidance of working in awkward and confined spaces;
• Good manual handling technique even when lifting light items;
• Avoidance of using tools with a vibratory component on the left side;
• Avoidance of forceful activities involving the left shoulder girdle;
• Avoidance of prolonged static postures involving the left shoulder girdle, particularly in forward flexion;
• Avoidance of repetitive abduction, adduction involving the left shoulder girdle;
• Avoidance of above shoulder activities. He should work between shoulder and waist height;
• Avoidance of lifting items greater than 10 to 12kgs, except on an occasional basis;
• Avoidance of lifting items up to 8kgs on a repetitive basis.”[79]
[79]PCB 142
108 Further, Dr Horsley considered the plaintiff was permanently unfit to undertake rigging work and permanently unfit for the critical physical demands of his previous role as an automotive checker and accessory fitter. She noted that he always had worked in the manual area and he would need to work in a much less manual role.[80]
[80]PCB 142
109 Dr Horsley considered that in view of his fourteen months out of the workforce, any return to work would need to be part time initially, in the vicinity of fifteen to twenty hours per week, gradually increasing, depending upon his capacity and the critical physical demands of the role that he returns to.[81]
[81]PCB 142
110 Despite the certificates referred to in the IPAR report referred to above, the treating general practitioner, Dr Magill, in his report to the plaintiff’s solicitors dated 26 February 2019,[82] stated:
“[The plaintiff] … continues to be certified fit for modified duties, that is duties which do not require him to have repetitive use of his left arm and shoulder. This restriction will continue into the future. If he were able to find suitable modified or alternative duties then he would be able to work in a full time capacity. He would be able to work in any duties that did not put stress on his shoulder.
He is have (sic) pain management, currently he does not require any further surgery.
…
[A]ny activity which requires him to use his left arm for repetitive movements or above shoulder height will be precluded and restricted completely. [T]his will continue indefinitely.”[83]
[82]Exhibit C
[83]PCB 103
111 Specialist pain medicine physician, Dr Jacquelyn Nash, from Pain Matrix, reported to the plaintiff’s instructing solicitors on 29 March 2019.[84] It was noted the plaintiff had been referred by orthopaedic surgeon, Mr Kevin Eng.
[84]Exhibit F
112 Examination of the shoulder revealed:
“… differing muscle bulk particularly in the trapezius area, and a reduction of range of movement on the left side, with shoulder abduction to 90°, flexion to 100°, and internal and external rotation reduced by approximately 20% compared to the contralateral side. He had history and evidence of hypermobility of multiple joints. Sensory testing of the left shoulder did not reveal allodynia, or hyperpathia, however pressure hyperalgesia was identified over the AC joint. He had tender muscle sites on the left trapezius and also rhomboid musculature. Left side scapula winging presence and weakness of trapezius and sub scapular muscle groups.”[85]
[85]PCB 110
113 Dr Nash opined:
“As a consequence of his injuries sustained and chronic pain condition he has been unable to return to his previous employment in a full capacity, this incapacity to return to full duties is likely to continue for the foreseeable future. I would consider that ongoing pain treatment including with an occupational therapist and physiotherapist with pain specialist oversight could improve his capacity to work in a part-time or full-time basis in the future. I would consider that ascertaining job capacity would be a key component of further pain treatment and rehabilitation.”[86]
[86]PCB 111
Credit
114 It was submitted by senior defence counsel that the plaintiff had shown negativity towards applying for suitable employment. On the other hand, leading counsel for the plaintiff submitted that the plaintiff’s credit was intact and there had been no cross-examination to the effect that he was exaggerating his symptoms. It was agreed by counsel that probably the plaintiff could attend to ticketing of a train conductor but assisting passengers with luggage in racks or placing ramps on the platforms would be well beyond his capacity in accordance with the restrictions outlined by the various medical practitioners.
115 With respect to the completion of a food handling course, the plaintiff stated for example that it was difficult making cappuccino coffees. He said:
“I found difficulty in … repetitive motions of making coffee on a … machine where you steam the milk and you have to have a rotating motion with the jug, and I found it painful.”[87]
[87]T15, L6-9
116 Senior defence counsel referred to the plaintiff’s evidence with respect to the coffee making difficulties, when he stated:
“In my opinion I don't think I'd be able to get employment in that area.”[88]
[88]T15, L15
117 Counsel stated:
“That was making coffee. I mean that’s just a pure negative response. It’s not the response he’s conveyed to the doctors where he says – and they record that he’s well motivated to go out and get work, he wants to work and he said at one point in the witness box that that’s his position. But as soon as you suggest something like coffee making, as barrister [scil barista], he says, ‘I don’t think I’d be able to get employment in that area’. He hasn’t even tried. He doesn’t explain why.”[89]
[89]T108, L24 – T109, L3
118 Overall, as stated to senior defence counsel in final addresses, the impression that I have of the plaintiff is that he is honest and straightforward and has a good work record and I did not think he was evasive in answering questions by counsel.[90]
[90]T120, L5-10
Capacity for suitable employment
119 It would appear to me that, overall, the evidence adduced, in particular, by the occupational physicians, leads to the conclusion that the plaintiff’s physical capacity for work is severely restricted.
120 It is clear enough that the evidence adduced in cross-examination relates to the plaintiff’s physical capacity to undertake the duties put to him; however, as Ashley and Kaye JJA stated in Richter v Driscoll:[91]
“[R]eturn to work in employment ... requires more than that a physical capacity to engage in a task or tasks.”
[91][2016] VSCA 142 at paragraph [76]
121 The employment must be, as specified in the definition of “no current work capacity”, “suitable employment”. For their Honours, the definition of “suitable employment”:
“... plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise.”
122 Their Honours warned:
“… paragraphs (a)(ii), (iii) and (iv) would have no work to do.”[92]
[92]Richter v Driscoll (ibid) at paragraph [76]
123 Accordingly, the question whether a worker is able to return to work in suitable employment, according to their Honours:
“... specifically requires consideration of matters travelling beyond physical capacity to perform a task.”[93]
[93]Richter v Driscoll (ibid) at paragraph [77]
124 Accordingly, the construction which Ashley and Kaye JJA placed on the definitions of “no current work capacity” and “suitable employment” can be expressed as follows:
“... whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances – these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.”[94]
(Emphasis added).
[94]Richter v Driscoll (ibid) at paragraph [95]
125 They further stated:
“The other, closely allied, way in which the matter may be put is shown in the passage of the judgment of Fletcher Moulton LJ in [Cardiff Corporation v Hall [1911] 1 KB 1009], where his Lordship referred to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’.”[95]
[95]Richter v Driscoll (ibid) at paragraph [96]
126 Osborn JA agreed with Ashley and Kaye JJA in this regard. His Honour stated:
“The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated. ...
A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.
This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.”[96]
(Emphasis added).
[96]Richter v Driscoll (ibid) at paragraph [143]-[145]
127 It would appear to me that the state of the plaintiff’s left shoulder is such that he is effectively almost exclusively relying on his right arm.
128 It is true that he was able to return to full-time modified duties but until he incurred a “flare up” of the injury in March 2018 which is accepted as an exacerbation of the compensable condition. The exacerbation was apparently brought on in seemingly innocuous circumstances where he was applying the handbrake of a motor vehicle. The plaintiff was unable to return to those duties prior to being terminated in November of 2018.
129 Further, the plaintiff’s work history is excellent and he had travelled to Queensland and Western Australia in pursuit of remunerative employment. He had qualified as a rigger prior to the injury and in fact had applied for a position in 2015 before withdrawing because of the state of his shoulder. It was not put to him that this was a cynical exercise for the purposes of his litigation.
130 I accept that he suffered the pain and difficulties when attempting to rotate the jug of milk whilst attempting to train as a barista.
131 Pursuant to s134AB(38)(e) of the Act, the plaintiff must establish that he will, after the date of the hearing, continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
132 In assessing that financial loss, recourse to s134AB(38)(f) of the Act requires the Court to compare:
“(i) …
(ii)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 during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred.”
133 In the context of this case, it appears to me that the 2011 financial year income of $75,000 as a trade assistant, or $100,000 per annum as a rigger, would both come into the calculus as being relevant to this section. In particular, I believe but for the injury, the plaintiff “would have been capable of earning from personal exertion” the earnings of a rigger approximating $100,000 per annum.[97]
[97]See the Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292 at paragraph [42]
134 In terms of the analysis conducted by the Court of Appeal in Richter v Driscoll[98] above, I have serious doubts as to whether the plaintiff is able to return to work in suitable employment as a settled member of the workforce. But in any event, I am satisfied that he has established that he would not be capable of earning more than $45,000 per annum, which is 60 per cent of the income he earned as a trades assistant in 2011.
[98]ibid
135 Accordingly, leave will be granted for the plaintiff to issue proceedings for loss of earning capacity.
136 Further, according to the principles laid down in Advanced Wire & Cable Pty Ltd & Anor v Abdulle,[99] the plaintiff will also be granted leave to issue proceedings for pain and suffering damages.
[99][2009] VSCA 170
137 I will hear the parties as to any consequential orders.
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