Hume v Asaleo Care Australia Pty Ltd
[2018] VCC 1196
•8 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-05227
and CI-17-05228
| JAMES WILLIAM MICHAEL HUME | Plaintiff |
| v | |
| ASALEO CARE AUSTRALIA PTY LTD | First Defendant |
| and | |
| VICTORIA WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 July 2018 | |
DATE OF JUDGMENT: | 8 August 2018 | |
CASE MAY BE CITED AS: | Hume v Asaleo Care Australia Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1196 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury applications – injury to right shoulder – subsequent injury to left shoulder – separate applications – disentanglement of consequences of one shoulder injury from the other – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment:Leave granted in respect to pain and suffering and loss of earning capacity damages in respect of each injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J M Forbes QC with Mr A C Dimsey | Ellis Palmos & Co |
| For the Defendants | Ms A M Magee QC with Mr S R Weir | Russell Kennedy |
HIS HONOUR:
Preliminary
1 Mr Hume is now fifty-eight years old. He left school, having not passed Year 12, completed a four-year apprenticeship as a goldsmith and worked in that industry for a number of years. He then worked as a process worker for a period and was self-employed, firstly mowing lawns, and then as a painter and decorator. He started work for the first defendant, Asaleo Care Australia Pty Ltd (“Asaleo”), in 1994. Asaleo manufactured toilet rolls and paper towels.
2 By 2009, he worked mainly on a large machine, performing a range of manual maintenance tasks. His role was as a machine operator/process worker.
3 Mr Hume suffered injury to his right shoulder on 28 October 2008 in the course of his work. He suffered a second injury, this time to his left shoulder, in a separate accident on 30 November 2013. Both injuries occurred when he was working at Asaleo’s premises in Box Hill.
4 In respect of his right shoulder injury, he underwent surgery on 25 November 2010, performed by Mr Christopher Pullen, orthopaedic surgeon, to repair a full-thickness tear of the supraspinatus tendon. Mr Pullen performed a hydrodilatation procedure in March 2011 as Mr Hume had started to develop a frozen right shoulder.
5 In March 2013, he suffered a rupture of the right biceps tendon.
6 In relation to the injury to his left shoulder in November 2013, Mr Pullen performed surgery in April 2015, being a subacromial decompression, and again, in March 2016, being a subacromial decompression and rotator cuff repair. Mr Pullen also performed a hydrodilatation procedure to the left shoulder in July 2015, and again in May 2016. In May 2016, it was also determined he had a torn biceps tendon to the left shoulder.
7 Despite these injuries, he initially returned to work, eventually on a full-time basis until December 2014 when his employment was terminated following a dispute about his entitlement to a redundancy payment. He said he made application for redundancy because of the ongoing problems with his right shoulder. He has not worked since, nor applied for any jobs.
8 In the 2012-2013 financial year, according to his taxation returns, he earned $105,696.00 gross.
9 Mr Hume claims a range of domestic, recreational and leisure activities are affected.
10 This is a serious injury application. In fact, there are two separate applications, one for each shoulder.
11 Leave is sought to bring proceedings for both pain and suffering and loss of earning capacity for each shoulder.
12 At the outset, Ms Magee, for the defendants, identified the issues in the application as:
· It was necessary, the onus being upon the plaintiff, to disentangle the consequences of the right shoulder injury, from those of the left shoulder injury. There was also a disentangling exercise in relation to a back condition and regular headaches Mr Hume suffers.
· When each injury was looked at separately, the plaintiff did not meet the legislative test of a 40 per cent loss of earning capacity.
· There were reliability and credibility issues as a result of which I ought to have reservations as to the credibility of the plaintiff.
13 In essence, the application is all to do with whether Mr Hume has suffered a loss of earning capacity of 40 per cent or more when assessing each shoulder injury separately.
The right shoulder injury
14 I have referred to the surgical procedures in relation to the right shoulder injury.
15 Following the surgery of November 2010, Mr Hume underwent physiotherapy. He was also prescribed pain-relieving medication, and from time to time, medication to help him sleep. In March 2011, Mr Pullen referred Mr Hume for a hydrodilatation procedure because of the onset of a frozen shoulder. In April 2011, he returned to work for Asaleo on a part-time basis. He also undertook a gym and swimming program. In November 2011, he returned to work full time on lighter duties, although used his left arm more to protect the injured right side.
16 In March 2013, he felt a “popping” sensation and was subsequently advised he had ruptured his right bicep. He remained at work.
17 He returned to physiotherapy in August 2013 and has been under the care of a physiotherapist through to the present, both in respect of the right and left shoulder.
18 In December 2014, he ceased work as a result of a dispute about redundancy payments. Up to that time, he had been working full time, although he said the work was relatively light as the large machine that he had worked upon was being decommissioned. His employment was formally terminated in July 2015.
19 At the present time, he takes Nurofen and Panadol on a daily basis both for the right and the left shoulder. He takes Endone several times a week, again for both shoulders.
20 According to his affidavit, he suffers constant pain in the right shoulder and down the right arm. It is frequently a throbbing type pain. It is painful and difficult to move his arm behind his back or with push or pull movements. He can lift lighter items but has difficulty lifting anything above his head. His sleep is disturbed, particularly when he turns onto his right shoulder.
21 In May 2017, he undertook a basic computer course over a period of eight weeks, one morning per week. He said he did not learn more than he already knew. He has basic computer skills, can search the internet, send emails and use a Word document.
22 The defendants’ vocational assessors, Konekt and Recovre, have suggested the following areas of employment are suitable:
· sales assistant
· trades sales assistant
· purchasing and stock clerk
· delivery driver
· customer service representative
· road traffic controller
· sales representative; and
· occupational health and safety consultant and trainer.
23 In relation to these various positions, Mr Hume said he had little if any experience in anything other than process or machinery work. Many of the jobs involved computer or customer relation skills which he did not have. Further, he said he would not be able to carry out the physical tasks required.
24 Mr Hume says a range of domestic duties are affected, particularly involving anything which requires him to stretch his arms. He struggles to do up buttons or pass items. Stirring a pot with his right arm is difficult, as is chopping vegetables. It is difficult to open jars and wash and comb his hair. Some aspects of dressing are difficult. A range of gardening activities are reduced. He used to enjoy swimming but can no longer do so. He went to the gym and used weights but that capacity is now reduced. He cannot undertake maintenance at his house.
25 In June 2016, he had bypass surgery for a heart condition, although says he has made a good recovery.
26 He considered undertaking a course to train as an occupational health and safety officer and actually enrolled in such a course. However, by reason of both the right and left shoulders, he thought he would be unable to undertake such work as it involved climbing ladders, driving, and sometimes working in confined spaces. He is right hand dominant.
27 He goes to the supermarket and does most of his shopping, although carries only light loads. His intimate life with his partner is affected.
28 He has undertaken a number of holidays recently, and has enjoyed them but has struggled to lift luggage when going to an airport.
29 An ultrasound of the right shoulder of 12 April 2017 noted:
“Long head of biceps tendon is completely ruptured and retracted.
Subscapularis is also ruptured with no fluid definable. Supraspinatus is thinned, minimal fibres present.
The infraspinatus and teres minor components of the rotator cuff are intact.
Subacromial/subdeltoid bursa is thickened and impinges with abduction at the level of the coracoacromial ligament. Abduction is limited to 60 degrees.”[1]
[1]Plaintiff’s Court Book (“PCB) 50
The left shoulder injury
30 As to the left shoulder, according to Mr Hume’s affidavit, he suffers persistent ache in the left shoulder and a “feeling of heaviness”. He suffers shooting pain to the top of the left shoulder and into the left arm. Movement of the left arm is restricted in the same manner as the right. He says he cannot tolerate excessive movement of the left shoulder, in particular lifting, pulling, pushing and reaching forward or to the side.
31 He has the same difficulties lifting above his head with the left arm, as with the right. Carrying any weight of significance in the left arm is difficult. His recreational and domestic activities are restricted in respect of the left arm in the same manner as the right.
32 In addition to the surgery carried out in April 2015 and March 2016, Mr Hume has suffered a ruptured tendon to the left side. He is still considering whether to undergo surgery for that. He has had treatment over the years with physiotherapy, which has continued. He has had two hydrodilatation procedures to avoid a frozen shoulder.
33 He has been referred for a further opinion from another orthopaedic surgeon, Mr Ash Moaveni. That practitioner noted Mr Hume was concerned about the tendon rupture on the left side. In 2017, he advised against any further surgery to the shoulders because of the significant risk of the recurrence of adhesive capsulitis (or frozen shoulder). There was also a query about whether, with his heart condition, another general anaesthetic was advisable. Mr Moaveni noted there were signs of a chronic long head of biceps tear on the left side, and muscle atrophy was present. Mr Moaveni noted there was still a subscapularis tear on the left side.
34 An MRI scan of the left shoulder of 18 September 2017[2] concluded:
“1 LHB tendon not visible In the proximal arm. Normal appearance to the proximal portion of the short head of biceps muscle and tendon.
2Possible adhesive capsulitis given the appearance of the IGHL. Please clinically correlate.
3Mild to moderate tendinopathy supraspinatus tendon with mild subacromial bursal thickening. The mild to moderate AC joint arthropathy maybe contributory to this pathology - impingement.
4 Mild OA glenohumeral joint.”
[2]PCB 110
Medical opinions as to work capacity in respect of the right and the left shoulder
35 According to a questionnaire completed by a general practitioner from the general practice Mr Hume has attended over the years,[3] it was said Mr Hume was able to work as a sales representative, trades sales assistant, purchase and stock clerk and customer service representative. It was said he would not be able to work as a delivery driver.
[3]PCB 145
36 Another practitioner from the same clinic, Dr Oh, said Mr Hume was not suitable for his pre-injury duties and would not work again in heavy manual labour. He said:
“… He is physically able to do more sedentary, desk work which specifically avoids heavy lifting or any lifting above his shoulders but he fears that he is underqualified and will never be able to find a job like this.”[4]
[4]PCB 149
37 The treating orthopaedic surgeon, Mr Pullen, in a report of April 2016, said Mr Hume would not be able to undertake activities which required him to reach above shoulder height, undertake repetitive work activities, and would be restricted in his ability to lift and carry weights in either his left or right arm. He said he would never be fit to return to work as a process worker. He set out a range of limitations and restrictions in his functional capacity.[5]
[5]PCB 72
38 Mr Cheng Yang, a physiotherapist from the physiotherapy practice, Back in Motion, which has treated Mr Hume over the years, said that it was highly unlikely Mr Hume would be able to return to his previous role or duties. He had a reduced range of motion and significant weakness in the left shoulder. He said it was unlikely he would be able to resume any labouring employment and would not have the functional strength necessary to complete labouring duties. It was said that if he was to work, the tasks would need to be limited to work below shoulder height and with minimal lifting.[6]
[6]PCB 161
39 Mr Hume was examined by Mr Stephen Doig, orthopaedic surgeon, in February 2018. He noted Mr Hume had significant problems with both shoulders now over a considerable period. He received a history of ongoing bilateral shoulder pain requiring pain-relieving medication on a regular basis.
40 In respect of his left shoulder, Mr Doig said:
“… As far as his left shoulder is concerned, that causes him to be incapacitated for employment or activities involving lifting any weight above 2kg at ground level and above 2kg at bench level. It will significantly restrict him from reaching out or above head height or doing repetitive movements of the left shoulder or arm.
It will markedly restrict him from pushing, pulling, and carrying weights. As a consequence of this I consider that he does not have the ability to perform his pre-injury duties. I think it is extremely unlikely that he will be able to return to suitable duties either because of his history of manual work, limited education, and the fact that he has never used a computer even though he did a computer course. As a consequence I think it is extremely unlikely that he has the capacity for work purely related to his left shoulder. … .”[7]
[7]PCB 164
41 In relation to his right shoulder, Mr Doig said:
“As far as the right shoulder is concerned, he has ongoing right shoulder dysfunction post-rotator cuff surgery as well as a rupture of the long head of biceps. He almost certainly does have a full thickness tear of the supraspinatus tendon as well, despite the fact that it is noted that it was a subscapularis tear on the last ultrasound. The evidence for this is that he has quite marked weakness of the supraspinatus. … As a consequence of the right shoulder and right arm injuries, I consider that this will cause him to be incapacitated for lifting more than 2kg weights from ground level or from bench level, from reaching out and doing any lifting or activities above head height and from doing repetitive movements of the right shoulder or arm. I consider it will significantly restrict him for pushing, pulling or carrying any heavy weights. As far as the right shoulder is concerned, I consider that he does not have the capacity for his pre-injury employment. I consider it is extremely unlikely he will be able to return to suitable employment. Once again he has no computer skills and has always worked in a manual job. I consider that his right shoulder injury by itself will restrict him significantly from doing any manual labour into the foreseeable future. As a consequence I consider the incapacity that he has arising from his right shoulder and right arm injury is likely to last into the foreseeable future. … .”[8]
[8]PCB 164
42 Mr Hume was examined by Dr Robyn Horsley, occupational specialist, in March of this year. She took an educational history and noted that he had failed Year 12, that he had a forklift licence, had worked as a shop steward for sixteen of his twenty years at Asaleo and had some issues with spelling and grammar which, she said, would make it difficult for him to work in a purely administrative role. She noted he had basic computer skills.
43 As to current symptoms, she said he had a significant ongoing disability in both shoulders with chronic pain, worse in the left than the right. The pain varied from 3 out of 10 to 9 out of 10. She set out a range of activities he found difficult.[9] He reported difficulty with driving and that he was unable to hold his hands in a “10 to 2” position.
[9]PCB 170
44 Dr Horsley set out a range of work restrictions in respect of both the left and the right shoulder.[10] She said he was permanently unfit for his previous work and with limited computer skills and some literacy issues, was not a realistic candidate for redevelopment or retraining. She thought him totally and permanently disabled for all work.
[10]PCB 175
45 Dr Horsley was subsequently provided with details of the suggested alternative areas of employment from the defendants’ vocational assessors, and in relation to all of those areas, said that the work was unsuitable. She provided a detailed analysis of the tasks involved. She commented that he had limited experience in customer or sales representative roles. She said he had limited computer skills which many of the jobs required. Any job which involved extensive driving would not be possible. Some of the roles involved use of his left and right arm with manual handling tasks. He had no experience in an office-based environment. Although he had gained considerable knowledge about occupational health and safety matters in his role as a shop steward, he would require a “Certificate IV in training and assessment” to be in any way competitive in that area. She said, aside from problems with climbing ladders or working in confined spaces which the job may entail, at his age, and with his limited skills and the fact that he had no office-based training, he would not have the capacity to undertake such work either from the perspective of his left or his right arm.
46 In conclusion, Dr Horsley said he was unsuitable for any of the proffered areas of alternative employment, whether one looked at his right or his left arm in isolation.
47 Mr Hume was examined by Dr David Barton, occupational physician, in 2015 and again in October 2017. He provided a further report of March 2018. He accepted Mr Hume would not be fit for his pre-injury duties, but thought he had the capacity for suitable employment involving lighter duties where there was no heavy lifting or reaching above shoulder height. He said he had the capacity for this work on a full-time basis. When provided with the jobs identified by Recovre, he thought Mr Hume had the capacity to work as a sales representative, trade sales assistant, purchasing stock clerk, and customer service representative. He said he did not have the capacity to work as a delivery driver. When he was subsequently provided with the additional jobs, road traffic controller, sales representative and OH&S consultant and trainer, he thought these jobs were within Mr Hume’s physical capacity.
48 I note, however, there is little detail in the extent to which Dr Barton assessed the tasks involved in these areas of employment.
49 Mr Hume was examined by Dr Ian Dickinson, orthopaedic surgeon, in April 2018. To that practitioner, Mr Hume complained that he lacked strength in both arms, that he had trouble lifting things and had shooting pains down both arms from his shoulders, more in the left than the right. Reaching out, in particular carrying items, was difficult. Mr Hume said his symptoms had not improved and that he continued with physiotherapy. Dr Dickinson accepted Mr Hume lacked strength in both his arms, had problems lifting things and had tendinopathy in both shoulders. He thought Mr Hume had the capacity to undertake suitable employment in an area where he was not required to undertake heavy lifting to any extent nor overhead activities. He said he would be best suited to sedentary work and only light manual handling.
50 When provided with the Konekt and Recovre reports, he said, again without any detailed analysis, that Mr Hume had the capacity to undertake the work referred to. He thought the prognosis was poor.
Analysis – left shoulder injury
51 I shall deal with the left shoulder injury first, although it came later in time. I accept the submission of Ms Forbes, for the plaintiff, that when one considers Mr Hume’s capacity for suitable employment in relation to the injury to his left shoulder, one must assess him as a person with an already significantly compromised right shoulder.
52 There is no doubt he has a significant left shoulder condition, having undertaken major surgery on two occasions, and hydrodilatation procedures. I assess him as an honest and straightforward witness. There were no major credit issues put to him. There were some minor anomalies in his evidence and histories to the practitioners, but they were of little moment. I accept his evidence that he suffers ongoing restriction in the left shoulder and chronic pain, exacerbated from time to time, lack of strength and a very significant restriction in a range of activities and tasks he can undertake.
53 Regard must be had to the fact that he is now fifty-eight years of age and that his work experience, in the last twenty years, has been only as a process worker/machine operator. He has no experience in sales positions, or in other areas where he was required to deal with the public. I accept his computer skills are basic, and any job in administration would be quite foreign to him.
54 The most in-depth analysis of the various areas of alternative employment proffered by the defendants was undertaken by Mr Doig and Dr Horsley. I prefer their opinions to those of Dr Barton and Dr Dickinson, whose analyses I found somewhat superficial, and without a real assessment of the tasks involved in the jobs. While the opinions of the general practitioner and the treating surgeon should be respected, they again did not contain the same level of analysis of the alternative jobs suggested, as did Mr Doig and Dr Horsley. Further, they did not consider the criteria for “suitable employment”, to which I must have regard.
55 When the fact that Mr Hume has an already compromised right shoulder, his capacity for employment in considering his left shoulder condition is almost non-existent. I am satisfied that he has more than a 40 per cent loss of earning capacity in respect of the left shoulder.
Analysis – the right shoulder injury
56 I shall assess Mr Hume’s earning capacity in respect of his right shoulder injury having regard to that injury, and the consequences which have flowed, alone, and disregarding his left shoulder injury.
57 Again, accepting his evidence, he has ongoing pain and restriction in the right shoulder. All of the practitioners who have examined him, be they treating or consultant, have placed significant restrictions in the sorts of activities he is able to undertake with the right shoulder. I accept that he takes regular pain-relieving medication, and the condition requires ongoing physiotherapy. There is little prospect of any improvement in the future, and there is no recommendation for further surgery to the right shoulder.
58 Again, I accept that it is a significant condition, requiring operative treatment and intervention. I accept that he has the pain and limitations in the right shoulder area which are set forth in his affidavit.
59 Again, I prefer the opinions of Dr Horsley and Mr Doig and the analysis they have undertaken as to his work capacity for the suggested jobs. I accept their opinions that he has no realistic capacity for employment in any area of employment in any work that has been identified.
60 Again, I am required to take into account the definition of “suitable employment”. That means Mr Hume’s age and the restrictions placed upon him by the right shoulder injury are relevant. I also take account of his limited education and work experience outside the area of a process worker/machine operator.
61 Accepting the opinions of Dr Horsley and Mr Doig, I am satisfied that he has little realistic capacity for employment as a result of his right shoulder injury alone. There are considerable restrictions placed upon the tasks he is able to undertake.
62 He has little if any experience in sedentary and office-based work. He has no experience in sales. He has limited computer skills. He has very real difficulties in any work which would involve use of his right arm or shoulder. The area of employment postulated by Ms Magee, as an occupational health and safety officer or trainer, is that for which he has the best prospect. It is clear he has considerable experience in that area, having been a shop steward for many years at Asaleo. However, I accept his explanation, and the opinions of the practitioners to whom I have referred, that even that job involves climbing on ladders and use of his right arm in a way which he would find difficult.
63 I am satisfied he has little if any capacity for any of the areas of employment referred to. Certainly his loss of earning capacity exceeds 40 per cent.
Conclusion
64 I am satisfied Mr Hume has little if any capacity for alternative, even sedentary employment given either of his shoulder injuries. It follows it is not necessary for me to determine whether he meets the statutory test in respect of pain and suffering.
65 I am satisfied the plaintiff has disentangled the consequences of the right shoulder injury from that of the left. I am satisfied there is no real disentangling exercise in relation to Mr Hume’s back condition and headaches. They are of little relevance.
66 Leave should be granted for both pain and suffering and economic loss in respect of both the left and the right shoulders. I shall make appropriate orders.
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