Ilievski v Ilievski Pty Ltd

[2010] VCC 1623

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-09-04499

Trajce Ilievski	Plaintiff
v
Ilievski Pty Ltd	Defendant
Victorian WorkCover Authority	Second Defendant

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JUDGE:	S. Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	20 & 21 October 2010
DATE OF JUDGMENT:	24 November 2010
CASE MAY BE CITED AS:	Ilievski v Ilievski Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2010] VCC 1623

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s134AB(16)(b) – permanent serious impairment or loss of a body function – aggregation of bilateral shoulder impairments - loss of earning capacity – pain and suffering

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Y. Rattray QC	John Dellios and Associates
Mr R. C. Forsyth
For the Defendant	Mr P. Elliott QC	Herbert Geer
Ms. A. C. Ryan
HER HONOUR:

1 The plaintiff, Mr Ilievska, is a 63 year-old former truck driver who seeks leave under section 134AB(16)(b) of the Accident Compensation Act 1985 to bring proceedings for the recovery of damages for pain and suffering and loss of earning capacity in relation to the injury to each of his shoulders during the course of his employment as a truck driver between October 1999 and 21 September 2007.

2          The Victorian WorkCover Authority (“the VWA”) says that the permanent impairment of each shoulder must be considered separately. The VWA does not contend against the grant of a certificate in respect of pain and suffering in relation to the impairment of either shoulder, but says that the plaintiff has a residual work capacity for light employment (as a car park attendant, crossing supervisor or pathology courier) and cannot succeed in establishing the requisite loss of earning capacity. While conceding that the plaintiff has participated in vocational rehabilitation, the VWA says that the plaintiff has not genuinely participated in the process. This contention is based on the plaintiff’s evidence that he felt obliged to do what the insurance company told him to do.

3          The parties agreed that the plaintiff’s pre-injury annual gross income was $47,889, which is $920.94 in weekly terms. 60% of that amount is $552.57. The parties agreed that if the Court finds he can only work 20 hours per week as a car park attendant (earning $316 minimum or $421 average per week), crossing supervisor (earning $321 minimum or $421 average per week) or pathology courier (earning $319 minimum or $447 average per week), the plaintiff would succeed in establishing the requisite loss of earning capacity. The defendant says on the evidence the Court could find that the plaintiff is capable of working more than 20 hours per week in these positions. The plaintiff says that his work capacity has been permanently extinguished by the injury to each of his shoulders, because the shoulders make movement of the arms possible, and the ability to move both arms is needed for most occupations.

4          At the hearing, the plaintiff and his wife gave evidence. The plaintiff relied on radiological investigations including a CT scan of the left shoulder[1] and ultrasound of both shoulders;[2] the reports of his treating orthopaedic surgeon Mr Tran,[3] treating neurosurgeon Mr John Laidlaw,[4] treating general practitioner Dr Adel Malek,[5] as well as on medico-legal reports of Mr Kenneth Brearley[6] (surgeon), Dr Charles Castle[7] (physician), and Mr Kevin King[8] (orthopaedic surgeon). He also relied on the vocational assessment report of Mr Bill Radley.[9]

[1]             The CT scan examination took place on 5 March 2003.

[2]             The ultrasound examination took place on 19 July 2007.

[3]             Report dated 2 September 2000.

[4]             Report dated 1 March 2004.

[5]             Report dated 25 February 2010.

[6]             Report dated 13 March 2010.

[7]             Report dated 8 July 2010.

[8]             Report dated 29 June 2009.

[9]             Vocational Assessment report dated 25 June 2010.

5          The defendant relied on the medico-legal reports of Mr Peter Kudelka[10] (orthopaedic surgeon), Mr Peter Battlay[11] (surgeon), Mr Michael Shannon[12] (surgeon), and treating cardiologist Dr Jeremy Hammond.[13] The defendant also relied on a report of the plaintiff’s treating occupational therapist, Ms Sandy Aggarwal.[14] Finally, the defendant relied on an NES vocational assessment report dated 19 January 2009.

[10]           Reports dated 12 November 2007, 25 September 2008 and 6 November 2008.

[11]           Report dated 27 October 2008.

[12]           Report dated 28 September 2006.

[13]           Report dated 20 July 2010.

[14]           Report dated 30 April 2008.

6          The plaintiff’s affidavits and evidence may be briefly summarised. He was born in Macedonia and attended school there for 12 years before migrating to Australia in 1973. He speaks reasonable English but does not read or write it. He worked as a truck driver sub-contractor between 1977 and 1997. The first defendant was created as a family trust and it arranged the plaintiff’s employment with various truck companies. His wife had some book-keeping training in Macedonia and she managed his paperwork. His accountant, Mr Burhan Erdogan, provided an affidavit and a report explaining the operation of the trust. From 1996, the first defendant arranged for the plaintiff to work as a driver with McArthur transport. The truck he drove was not fitted with a rear lifting ramp to assist with unloading goods, and the plaintiff often had to lift 50 kilogram bags of flour and boxes weighing 30 kilograms.

7          He first had right shoulder pain in 2000. Ultrasound at the time revealed a tear in the supraspinatus tendon. He had a cortisone injection in the shoulder in September 2000. He continued working his normal duties. In the following years he suffered pain both shoulders which increased in early 2003. He had a CT scan of his left shoulder which showed minor osteophyte formation in the AC joint. The pain in both shoulders increased significantly (although more in the right shoulder) in August 2007, as a result of heavy lifting at work. He suffered pain and limitation of movement in both shoulders. In mid-September 2007 he suffered severe pain in both shoulder and had difficulty lifting the side gates on his truck. He had ultrasound on both shoulders on 19 September 2007 which revealed a complete rupture in the right shoulder and a full thickness tear in the left shoulder. He was referred to an orthopaedic surgeon, Mr Bruce Love, who recommended surgery to the right shoulder.

8          The plaintiff ceased work on 21 September 2007 and has not worked since. He sold his truck. He lodged a claim for compensation in October 2007 and received weekly payments of compensation until March 2010. In May 2008, he suffered heart problems which required insertion of a stent and ongoing medication. He attended meetings with the rehabilitation provider in late 2008 and early 2009 but received no offers of training, rehabilitation or alternative employment. He currently receives a disability support pension.

9          He says he has ongoing pain in both shoulders, worse on the right, which is exacerbated by raising his arms or lifting objects. He declined surgery for his right shoulder because there was no guarantee it would succeed. His sleep is disturbed by pain when he rolls on either shoulder. He cannot lift his arms easily or hold them up. He cannot do housework or home maintenance. He cannot mow the lawn. He suffers pain when doing movements including twisting, turning or exerting pressure on his arms. Driving also causes shoulder pain. He has difficulty shaving, combing his hair or going to the toilet. He continues to see his doctor, Dr Malek, and takes two Voltaren daily. He also uses Voltaren gel and takes Aspirin, although this is also taken for his heart condition. Prior to his injury he would go fishing each week with his friends, but no longer can do so. He has become anxious and depressed about his inability to work and live a normal life. He has had a course of cortisone injections into the left shoulder. He intended to work at least until the age of 65, and bought a new truck in July 2007 for that purpose. He believes that he is permanently incapacitated for all employment.

10        He and his wife have provided financial help to their younger son, Billy, in purchasing a truck for his business, but the plaintiff (and his wife) denied doing any paid work for that business. The plaintiff said he does not have the licence needed to drive his son’s truck. Mrs Ilievski confirmed that her husband does not do any work for the son’s business. She confirmed her husband’s physical restrictions, and the fact that he no longer goes fishing with his friends. They go out less than they used to.

11        In cross-examination, the plaintiff said that he was told by the rehabilitation provider to look at Centrelink and in the paper for jobs as a courier, car park attendant, or crossing supervisor and did so. He said that after three months the rehabilitation stopped working with him. He said that if they found him a job he would try it to see if he could manage it. He said he cannot work because of the pain in his shoulders, and cannot work with his hands because he cannot lift them up. He said he cannot work for many hours each day. He agreed that with acupuncture and occupational therapy from Ms Aggawal he experienced improvement at times, but at other times he was worse. He no longer sees his cardiologist. He said he refused shoulder surgery because Mr Kudelka told him it was not guaranteed to succeed.

12        I found the plaintiff and his wife to be impressive witnesses. I accept the plaintiff’s evidence as to his pain and restriction relating to each shoulder. I note that on 6 November 2008 the VWA accepted liability for the injuries to the right arm and shoulder and left arm and shoulder.

13        There was no issue between the parties concerning the medical evidence, which may be briefly summarised.

14        Ultrasound of the right shoulder in September 2000 was reported by radiologist Dr Martin Liu as showing “loss of contour of the supraspinatus tendon consistent with a full thickness tear”.[15] Mr Tran, orthopaedic surgeon, reported in September 2000 that the ultrasound showed “a partial thickness tear”[16] of the right supraspinatus tendon. CT scan of the left shoulder in March 2003 showed minor osteophyte formation in the AC joint. Ultrasound of both shoulders on 19 September 2007 revealed a complete rupture of the supraspinatus tendon on the right side and a full thickness tear in anterior part of the supraspinatus tendon on the left side.

[15]           PCB 85.

[16]           PCB 86.

15        Mr Aggarwal treated the plaintiff from October 2007 onwards with acupuncture and other modalities. Treatment was limited after his cardiac condition. On 16 June 2009 he reported that the plaintiff had “demonstrated remarkable improvement until February-March 2008”[17] and that left shoulder pain continues to fluctuate.

[17]           PCB 96.

16        On 12 November 2007, Mr Kudelka concluded that the plaintiff’s bilateral rotator cuff tears were “an aggravation of naturally occurring changes in the rotator cuff muscles as the years progress past middle age”.[18] He felt that the plaintiff could not return to his pre-injury duties but was fit to do office and clerical work “or other duties not involving strains on the neck and shoulder muscles, particularly avoiding any work which involves raising either arm to or above the horizontal”.[19] He noted that if arthroscopic surgery were successful he may be able to return to his pre-injury duties but felt there was no guarantee that surgery would relieve his symptoms or allow him to return to normal. On 25 September 2008, Mr Kudelka noted that the plaintiff’s options included retirement, continued conservative treatment, or surgery to both shoulders. On 6 November 2008, Mr Kudelka concluded that the plaintiff had the capacity to participate in vocational assessment and job seeking activities but noted that he only had experience as a truck driver.

[18]           DCB 6.

[19]           Ibid.

17        On 28 September 2009, Mr Shannon diagnosed full thickness rotator cuff tears but found reasonable function in both shoulders on examination. He concluded that the plaintiff was permanently unfit for his pre-injury duties but may be able to do light driving duties or to work as a car park attendant, pathology courier or crossing supervisor, provided he avoided strenuous repetitive use of the arms, heavy lifting or work above shoulder level.

18        In late February 2010, the plaintiff’s treating general practitioner, Dr Malek, reported to the plaintiff’s solicitors that he first saw the plaintiff in September 2007 (on the day that the plaintiff stopped work) with pain in both shoulders. He diagnosed rupture of the supraspinatus tendon in the right shoulder and rupture of the supraspinatus muscle of the left shoulder. He concluded that as a result of his shoulder impairment the plaintiff was permanently incapacitated for his pre-injury employment, but “may be able to perform other employment which does not require heavy lifting or tasks which require movement above shoulder levels”.[20] Dr Malek felt that the plaintiff could be retrained for work as a car park attendant, supervisor or office clerk.

[20]           PCB 101.

19        On 17 March 2010, Mr Brearley concluded that the plaintiff was suffering from bilateral rotator cuff lesions comprising complete tears of the supraspinatus tendon, with pain and limitation of movements of both shoulders and difficulty using his arms. He concluded that the plaintiff was fit for work such as light courier driving, or car park attendant or crossing supervisor, four hours per day, five days per week, but noted that given his age, work experience, ongoing symptoms and language difficulties, there was no likelihood that he would find suitable employment. He felt that the plaintiff was not a suitable candidate for retraining.

20        On 29 June 2010, Mr King concluded that the plaintiff had no current work capacity for his pre-injury duties and that suitable employment, or, indeed, any retraining was “not a practical proposition”[21] in the light of his age, poor language skills and lack of other skills.

[21]

21        On 8 July 2010, Dr Castle found that the plaintiff had bilateral ruptures of the supraspinatus tendon, with bilateral tenosynovitis and deltoid bursitis, and pain and restriction of movement in both shoulders. He felt that even surgery would be unlikely to completely alleviate his problems. He felt that the plaintiff had no current work capacity due to the severity of his pain and the restricted movement of both shoulders. After considering his age, language difficulties and employment history, he concluded that the plaintiff had no capacity for suitable employment for the foreseeable future. He also concluded that the plaintiff had no capacity for retraining due to his pain, restricted shoulder movement, limited education and language difficulties.

22        On 20 July 2010, Dr Hammond concluded that as a result of his cardiac condition the plaintiff could return to his pre-injury duties if he had assistance and did not lift more than 10 kilograms repetitively or more than 20 kilograms on occasion.

23        The NES vocational assessment report dated 17 December 2008 identified three potential positions for the plaintiff: car park attendant (part-time), pathology courier (part-time) and crossing supervisor. The report recommended that he be referred to Rehab Care for job seeking activities.

24        On 25 June 2008, Mr Bill Radley provided a vocational assessment report which considered all the relevant medical reports and the plaintiff’s restrictions. He concluded that with his restrictions the plaintiff could not work as a delivery driver. He concluded that the plaintiff has no capacity for any alternative employment for which he currently has the necessary skills, training and/or experience and that occupational retraining is not a viable option having regard to his age, low level of general education, poor English, physical tolerances and restrictions and limited ability to use his dominant right arm/hand. He noted that Year 12 in Macedonia is the equivalent of Year 10 here, and the economics subjects taken by the plaintiff were in fact taken in high school.

Legal principles

25        In order to make out a “serious injury” within paragraph (a) of the definition in section 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function whose consequences to him in terms of loss of earning capacity and pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function,[22] fairly described as being more than significant or marked, and as being at least very considerable.[23]

[22]  

[23]           See section 134AB(38)(c) of the Act.

26        Decisions as to whether an injury is serious involve elements of fact, degree and value judgement.[24] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[25] On the authorities,[26] the proper analysis involves: establishing that the plaintiff suffered a compensable injury after 20 October 1999; establishing what that injury was; determining the consequences which the plaintiff alleges have resulted and that those consequences were “materially contributed to” by the compensable injury; and determining whether those consequences meet the “very considerable level” in terms of pain and suffering and/or loss of earning capacity.

[24]

[25]  

[26] Ibid [80].

27        The whole of the evidence before the court should be considered, not just the medical evidence.[27]

[27] Ibid, [85]. See also Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 at [170].

28        Aggregation of bilateral shoulder impairments is only permissible if the injuries arise out of the same relevant incident and if in combination the injuries affect the one body function.[28] Some judges of this court have previously permitted the aggregation of bilateral hand injuries on the basis that in combination they impair the body’s function in manual activity.[29]

[28]           To Ha Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65

[29]           See, for example, Wright v Mount Edisar Pty Ltd [2006] VCC 410 and Giuliano v Red Robin Pty Ltd & Anor [2008] VCC 1805

29        Where loss of earning capacity is alleged, leave to issue proceedings is not to be granted unless the plaintiff establishes that, as at the date of the hearing, as a result of the injury he has suffered a permanent loss of earning capacity of 40% or more.

30        Section 134AB(38)(g) of the Act requires the plaintiff to establish that he would not, given his capacity for suitable employment[30] after the injury and, where applicable, the reasonableness of his attempts to participate in rehabilitation or retraining, have the capacity for any employment which, if exercised, would result in his earning more than 60% of his earnings, “as determined in accordance with paragraph (f) had the injury not occurred”.

[30] The definition of “suitable employment” was amended by s.74(3) of the Accident Compensation Amendment Act 2010. The Second Reading Speech says at p.4625: “The references to ‘suitable’ employment’ throughout the Act were always intended to capture a wide range of employment, vocational training and education arrangements through which workers may be returned to gainful employment. This concept has been obscured through restrictive interpretation by the courts of what suitable employment entails, most recently in the case of Smorgon Steel Tube Pty Ltd v Majkic. This undermines fundamental controls in the scheme as well as the core objectives of the Act, including the common-law economic loss gateway and return- to- work obligations”.

31        The definition of suitable employment is set out in section 5(1) of the Act, which provides:

“suitable employment, in relation to a worker, means employment in work for

which the worker is currently suited –
(a) having regard to –

(i)      the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and

(ii)     the nature of the worker’s pre-injury employment; and

(iii)     the worker’s age, education, skills and work experience; and

(iv)    the worker’s place of residence; and

(v)     any plan or document prepared as part of the return to work planning process; and

(vi)   any occupational rehabilitation services that are being, or have been, provided for the worker; and

(b) regardless of whether –

(i)     the work or the employment is available; and

(ii)    the work or the employment is of a type or nature that is generally available in the employment market.”

32        Where a plaintiff claiming to have suffered serious injury consequences in terms of both pain and suffering and loss of earning capacity satisfies the loss of earning capacity requirements of s.134AB, that plaintiff is entitled to claim damages for both loss of earning capacity and pain and suffering. It is therefore not necessary for the Court in those circumstances to determine whether the plaintiff has established the pain and suffering limb of her application.[31]

[31]           See Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority [2009] VSCA 170 per Redlich JA and Beach AJA at [63].

36

Aggregation

33        The plaintiff’s case concerns injury to each shoulder alleged to have arisen during the course of employment with the defendant, but not alleged to have arisen from specific incidents. I acknowledge that the work of a truck driver is performed using both arms in combination. However, I consider that the relevant impairment in the case of each upper limb is to the function of each upper limb and that, on the authorities, it is appropriate to consider the impairment of each upper limb separately.

34        However, for the sake of completeness, in the event that I am wrong in deciding to consider the impairment of each shoulder separately, I consider that, taken together, the shoulder impairments constitute a loss of the body’s function in manual handling and that on the evidence before me the plaintiff has clearly made out the statutory requirements in relation to the loss of earning capacity of his injury.

35        I noted that many of the medical reports do not expressly reach conclusions based on consideration of the shoulders separately. However, I consider that on a fair reading of the reports, the conclusion is open that the consequences flow from the impairment of function of the right shoulder taken alone. This is because in a right-handed, two-handed truck driver such as the plaintiff, the impact of the impairment of the function of the right upper limb is very substantial (even if it is less than the total impact of the impairments of both shoulders considered together) and materially contributes to the incapacity referred to in relation to both shoulders.

I turn to consider the loss of earning capacity consequences of the impairment Loss of earning capacity consequences of right upper limb impairment

Findings on the plaintiff’s work capacity

37        There is general expert consensus that the plaintiff is permanently unfit for his pre-injury duties. In spite of the opinion of Dr Malek that he may be able to perform other employment and could be retrained, I prefer the recent specialist opinions of Dr Castle, Mr Brearley and Mr King, as well as the considered opinion of Mr Radley, that for the foreseeable future due to the impairment of his right shoulder the plaintiff will have no capacity for suitable employment having regard to his age, his poor spoken and literary English, his pain level and poor physical tolerances, his physical restrictions, his limited work experience and limited transferable skills. I note that he is right-handed. An inability to repetitively use his dominant arm is compounded by the separate impairment of the left shoulder. In a person whose working life has consisted of driving, the inability to use his right arm to drive for long periods, as well as to lift it up or to lift objects with it, is a substantial impediment to further employment. I consider on the evidence before me that the plaintiff has participated in the vocational rehabilitation offered to him by the VWA but that he is not a suitable candidate for retraining having regard to his age, poor English, work experience, limited transferable skills, poor physical tolerances and physical restrictions as well as his pain levels.

38        I note that even if he could be retrained and could work 20 hours per week, the position of pathology courier is not suitable in the light of his physical restrictions and his poor English literacy. I consider that the position of crossing supervisor would not be suitable given his variable pain levels, potential unreliability and physical restrictions which would prevent him rendering assistance to disabled pedestrians. Finally, car park operators can require attendants to assist elderly clients with lifting, and the plaintiff would be unable to fulfil this requirement. For these reasons, I consider that none of the positions suggested by the defendant constitute suitable employment for the plaintiff.

39        I am therefore satisfied that the loss of earning capacity consequences of the impairment of function of the right shoulder are at least very considerable when compared with other cases in the range of possible impairments of the right elbow. I am also satisfied that the plaintiff has established a loss of earning capacity of 40 per cent or more. It follows that the plaintiff has made out the statutory requirements in relation to the loss of earning capacity consequences of his injury.

Conclusions

40        Leave is given to the plaintiff to issue proceedings for the recovery of damages for loss of earning capacity and pain and suffering in respect of the permanent impairment of the right shoulder sustained during the course of his employment with the first defendant between 20 October 1999 and 21 September 2007. I reserve the question of costs.

PCB 151.
See section 134AB(38)(b) of the Act.

Fleming v Hutchinson (1991) 66 ALJR 211.
See Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58].