Ilievski v Olympic Aluminium Pty Ltd
[2014] VCC 968
•2 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-06414
| STEVEN ILIEVSKI | Plaintiff |
| v | |
| OLYMPIC ALUMINIUM PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 June 2014 | |
DATE OF JUDGMENT: | 2 July 2014 | |
CASE MAY BE CITED AS: | Ilievski v Olympic Aluminium Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 968 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to left shoulder – distinct psychological injury – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s5
Judgment: Leave granted in respect of pain and suffering and economic loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Perry with Mr G Worth | Slater & Gordon Ltd |
| For the Defendant | Ms A Ryan | Wisewould Mahony |
HIS HONOUR:
1 The plaintiff suffered injury to his left shoulder on 13 November 2008 in the course of his employment duties. After a period away from work, he returned on light restricted duties until, he alleges, he was the subject of bullying in the workplace and suffered a significant psychological disorder as a consequence. He left work in July 2009, and has not returned to any form of employment since.
2 Quite appropriately, the defendant conceded that the plaintiff met the statutory test in respect of pain and suffering; that is, that the injury to his left shoulder gave rise to consequences which could be described as “very considerable”. The focus of this application is as to whether the plaintiff has suffered a loss of earning capacity of 40 per cent or more arising from the physical injury alone.
3 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment on 13 November 2008. The body function said to be lost or impaired is the left shoulder. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act, and leave is sought in respect of pain and suffering and loss of earning capacity.
4 The plaintiff, and his treating psychologist, Mr Zac Stojcevski, were called to give evidence and be cross-examined. In addition, two affidavits of the plaintiff, medical, radiological and vocational assessment reports were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principle authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
5 The plaintiff was born in 1962 and is now fifty-two years of age. He is married with two adult children. He was born in Macedonia and came to Australia with his family when he was eight years of age. He completed schooling to Year 10 in 1978. He then had a range of jobs, summarised as follows:
Period Employer Type of Work 1978 – 1986 A W Allen Pty Ltd Machine operator 1989 – 1990 Olympic Aluminium Pty Ltd Store person 1992 Pepsi Cola Forklift operator/store person 1992 – 1996 Davids Victoria Grocery Distribution Store person/despatch clerk 1996 – 1998 Unemployed 1998 – 2000 Davenport Industries Pty Ltd Store person 2000 – 2004 Agency employment Forklift operator/store person 2004 – 2009 Olympic Aluminium Pty Ltd Store person
6 Prior to his injury, the plaintiff enjoyed a range of activities, generally centred upon his family. According to his affidavit, he was a keen fisherman, worked in his garden and undertook a range of general household and maintenance chores. Further, he tinkered with cars, renovated his home, painted, cleaned out the gutters, and undertook a range of other activities. He had a good relationship with his wife and children.
7 In 1986, he suffered a strain to his left shoulder blade area for which he received some modest treatment. The injury resolved uneventfully. He was otherwise physically well at the time of his injury, and able to work in full-time employment as described.
The injury and its consequences
8 On 13 November 2008, the plaintiff was working with another storeman removing a 6.5-metre length of aluminium from a rack. The piece became caught, and the workers used considerable force to extract it, and by the time it was removed, the plaintiff alleges he was suffering considerable pain in his left shoulder. He attempted work for a short time, and then reported the injury to management. He consulted his general practitioner, Dr Bucek, and was certified as unfit for all duties. He was treated with medication and physiotherapy.
9 The plaintiff returned to employment on 15 January 2009 on restricted light duties. According to his evidence, he was given a range of duties, some of which caused aggravation of his shoulder pain. For a period, he was lifting heavy lengths of aluminium with a co-worker, and further, was required to fill bags with offcut aluminium pieces, and place them on a pallet. He was also required to undertake machine work which was unsuitable. Eventually, he was involved in setting up a library catalogue which listed and numbered pieces of aluminium to be later assembled. He was also involved in placing tags upon stock. In evidence, he said he was able to cope with these duties in these last two jobs, although they were “made up” for him and no-one had previously done this work.
10 Over the period leading up to July 2009, the plaintiff alleges that, as a result of his shoulder injury, he was bullied and harassed at work, in particular by one manager. The details of the conduct by the employer are set forth in an affidavit[1] filed in support of a claim made for psychological injury as a result of this bullying and intimidation. It is not necessary for me refer to the specific nature of the employer’s conduct, nor the plaintiff’s psychological reaction as a result, save to say that he has suffered a very significant psychological disorder as described in the reports of various psychologists and psychiatrists which have been tendered in this proceeding.[2] The psychological symptoms suffered by the plaintiff were extensive and include affect upon his mood, anxiety attacks, disturbed sleep, nightmares and ruminations, hyperarousal, affect upon memory and concentration, and upon self-confidence and his relationship with his wife. Those symptoms are comprehensively described by the plaintiff’s treating psychologist, Mr Zac Stojcevski.[3]
[1]Exhibit 2
[2]See reports of Dr Albert Kaplan at Plaintiff’s Court Book (“PCB”) 160; Mr Zac Stojcevski at PCB 143; Dr Rod Farnbach at Defendant’s Court Book (“DCB”) 86; Dr Paul Kornan at DCB 113
[3]PCB 156F
11 I accept without reservation that the plaintiff has had a severe reaction to his treatment in the workplace and was advised by Counsel for the defendant that a claim for compensation was made in respect of that psychological injury, and the WorkCover Authority granted certificates for both pain and suffering and economic loss. Further, as a result of the psychological injury, the plaintiff ceased work in July 2009, and has not worked since. The overwhelming psychological opinion is that as a result of his treatment at the workplace, the plaintiff has no capacity for employment, and that situation is likely to persist. He has had extensive psychological treatment from Mr Stojcevski which has continued through to the present day.
12 Returning to the plaintiff’s left shoulder injury, in February 2009, he was referred by his general practitioner to Dr Peter Braun, a sports physician. An MRI scan of the left shoulder taken 22 March 2009 showed a partial thickness articular surface tear of the posterior supraspinatus tendon. There was a small amount of fluid in the bursa and a SLAP lesion detected. Over the period from March until September 2009, a number of injections were undertaken into the left shoulder[4] but these proved of little effect. In March 2009, Dr Braun referred the plaintiff to Mr Christopher Pullen, orthopaedic surgeon, to discuss the prospect of surgery. A “wait and see” approach was taken but eventually, in October 2009, Mr Pullen undertook surgery to the left shoulder by way of arthroscopic repair. The SLAP lesion was debrided and the coraco-acromial ligament was released. There was a partial decompression under the surface of the acromiom performed. According to the plaintiff, the surgery provided only short-term relief and after a period of recovery, the shoulder was left in the same painful condition as prior to surgery.
[4]As described by Dr Braun at PCB 111
13 Dr Braun referred the plaintiff for ongoing physiotherapy which included strengthening of the left shoulder. When examined by Dr Braun in July 2009, the plaintiff reported that he still suffered deep axillary pain, although was able generally to manage his daily activities. At that time, he was still working on lighter duties with the pain in the shoulder being aggravated, depending upon the activity in which he was engaged. Dr Braun said that as a result of the left shoulder injury, it was unlikely the plaintiff would return to pre-injury duties. Generally, Dr Braun said the plaintiff was able to perform light physical or administrative duties in a supportive employment environment, once the psychological symptoms recovered.[5]
[5]PCB 113
14 The plaintiff last saw the surgeon, Mr Pullen, in April 2010. According to his report,[6] the plaintiff said he was still having problems with his left shoulder, although there had been significant improvement following surgery. He has not sought any further surgical, nor other specialist treatment. Since surgery, the plaintiff has been managed by his general practitioner, and physiotherapist, Mr Mueller. He still receives physiotherapy treatment on a fortnightly basis which provides short-term relief. The treatment is designed to strengthen the structure of the left shoulder and, according to Mr Mueller, the plaintiff will be unable to return to his previous employment and will have ongoing difficulty with work which requires lifting to shoulder height or above. He said the plaintiff did have a work capacity providing the work did not involve lifting above shoulder height, repetitive use of the arms, or lifting of more than 5 kilograms. Mr Mueller said the plaintiff would require assistance with work retraining, and should find another career.[7]
[6]PCB 119
[7]PCB 121
15 Dr Bucek has managed the plaintiff with conservative treatment and medication. He has prescribed Panadeine Forte, and the plaintiff takes two tablets, three to four times per week for shoulder pain. He also takes Mersyndol, pain-relieving medication, approximately twice per week. Dr Bucek said[8] that as a result of both his left shoulder injury, and the psychological injury arising from the bullying, the plaintiff was unfit to perform any previous work duties, or any other duties for which he was suited by experience and training. He noted the plaintiff was unable to raise his arm above shoulder height, and raising the limb beyond that level caused severe pain. He noted muscle wasting due to inactivity, and said the plaintiff should not lift weights heavier than 5 kilograms. He said the injury was permanent and left him with significant limitations in shoulder function.
[8]PCB 91a
16 Dr Bucek further has, through to the present time, certified the plaintiff as being unfit for employment. Dr Bucek’s WorkCover Certificates of Work Capacity were tendered.[9] According to the current certificate, the plaintiff is unfit for any duties due to his psychological injury, but in respect of his left shoulder injury, he is fit for alternative duties with the following restriction:
“No pushing, pulling, lifting greater than 2 kilograms with left arm or work above shoulder height.”[10]
[9]DCB 219 – DCB 393
[10]DCB 392
17 According to the plaintiff’s affidavit, he has difficulty with his left shoulder, in that the pain makes it difficult for him to sleep. He is no longer able to fish and is no longer involved in maintaining cars. Anything more than light domestic or recreational activities are beyond him and he no longer performs the maintenance work in and around his house.
18 In March 2013, at the urging of the insurer, he undertook a basic computer course for two hours per week over seven weeks. As a result of the course, he was able to turn the computer on, check emails and advance to the internet. In evidence, despite this course, he was still relatively computer illiterate and apart from these basic tasks, was unable to undertake any more significant computer operations.
Medical evidence
19 The plaintiff was referred to a significant number of consultant practitioners to assess both his left shoulder and psychological injuries. I shall not refer to the opinions of all of those practitioners, but only those which appear to me to be relevant to the issue to be determined.
20 According to a report of Mr Chris Haw, orthopaedic surgeon, of September 2010, he noted some mild wasting in the area of the shoulder and diagnosed the plaintiff as suffering a tear to the supraspinatus tendon as well as damage to the biceps attachment to the labrum.
21 Mr Khan, orthopaedic surgeon, examined the plaintiff in May 2012. The plaintiff complained of being unable to sleep when he lay on his left side and a range of physical activities were affected. Mr Khan said the plaintiff had made an incomplete recovery from the shoulder surgery and continued to have residual signs of chronic rotator cuff tendinopathy and referred pain into the shoulder blade and neck. He said the plaintiff is unable to perform any heavy strenuous work using his left arm, in particular pushing and pulling, repetitive elevation of the arm above shoulder level, lifting of weight beyond 2 kilograms and was left with a partial permanent impairment of function of the left shoulder. He said:
“As a result of his above injuries, it will be difficult for Mr Ilievski from a physical aspect of the injury to find suitable work with the restrictions above taking into consideration his age, training, skills and place of assessment.”[11]
[11]PCB 183
22 The plaintiff was examined by Dr Helen Sutcliffe, occupational physician, in May 2014. She received a history from the plaintiff of constant pain in the left shoulder, varying in intensity, depending upon the activity in which he was engaged. She noted that the plaintiff said he woke most nights with pain and stiffness in the left shoulder, had a reduced capacity for driving, although was able to manage his activities of daily living. She concluded the plaintiff had no capacity for his pre-injury employment and no capacity for occupations which had been considered suitable by a vocational assessment report. These occupations included customer service clerk, sales assistant, despatch clerk, mail clerk, machine operator, assembly worker or light process worker. She said the plaintiff could not return to any form of manual handling in the future because of his shoulder injury. She said she did not believe he would be sufficiently reliable, productive nor efficient to satisfy an employer on the open job market. He may be able to perform some manual handling work, she said, if he was provided with extensive retraining.
23 On behalf of the defendant, the plaintiff was examined by Dr Philip Mutton, occupational physician, on a number of occasions between 2009 and 2014. After obtaining a history and examining the plaintiff, Dr Mutton concluded that the plaintiff had a capacity for work, providing the work involved predominantly using his right arm. He said, further, the plaintiff should not lift more than 5 kilograms independently using the left arm and should avoid repeatedly lifting items above mid-chest height. Further, he said the plaintiff would be much better suited to working at a bench, but could work on a full-time basis within those restrictions, providing he had a period of reintroduction into the workforce.
24 When various alternative occupations, including mail clerk, factory process worker, packer and product assembler, were put to Dr Mutton, he said that working as a mail clerk or mail sorter would not be appropriate. The factory process worker may be suitable providing it involved light items, and working at bench height. Similarly, working as a packer or product assembler would be suitable, providing the same restrictions applied.
25 According to a report of Dr Barry Gilbert, public health physician, the plaintiff had a capacity for suitable alternative duties.
26 The plaintiff was examined by Mr Michael Shannon, orthopaedic surgeon, on several occasions between 2010 and 2014. Mr Shannon noted ongoing symptoms in the plaintiff’s left shoulder and that he had also developed some symptoms in his neck where he had mild degenerative changes. Mr Shannon said that purely from an orthopaedic point of view, the plaintiff was capable of light work with restrictions on strenuous repetitive use of the left arm, heavy lifting and in particular lifting above shoulder level. He said he could probably lift 5 kilograms at bench level, but would have difficulty with repetitive work. He said resumption of employment would need to be on a graduated basis.
27 When the proposed occupations of mail clerk, factory process worker, packing and product assembler were put to Mr Shannon, he said that all of these jobs would be unsuitable. He said:
“He may be better suited to some form of clerical work.”[12]
[12]DCB 85
Conclusions
28 The defendant, quite properly in my view, conceded that the injury to the plaintiff’s left shoulder has resulted in consequences which achieve the “very considerable” level as the legislation requires. The issue to be determined is whether, as a result of the physical injury to the plaintiff’s left shoulder, he has suffered a loss of employment capacity of 40 per cent or more.
29 It is further clear that the plaintiff has had a very significant psychological reaction to his treatment in the workplace and that this has resulted in him suffering a range of debilitating symptoms, as a result of which he has no capacity for any form of employment at the present, and into the foreseeable future. This, however, does not mean that an assessment of work capacity relating to the shoulder alone should not be undertaken. It will be a matter for determination of damages at the trial, the extent to which the plaintiff should be compensated for loss of earning capacity. What is of significance is that, in determining the plaintiff’s work capacity arising from the left shoulder injury, the consequences of the psychological injury must be set aside. Most of the practitioners who have examined the plaintiff have concluded he has not suffered a psychological reaction to the physical injury, save for the psychologist Mr Stojkevski, who said he suffered a chronic pain disorder, in addition to the psychological injury from the bullying. To the extent he has such a disorder, the consequences of that must also be set aside.
30 In submissions, Ms Ryan, for the defendant, pointed to the opinion of various practitioners who, while generally accepting the plaintiff, as a result of his left shoulder injury, had no capacity for his pre-injury duties, did have a capacity, on a full time basis, for light alternative duties. That was the opinion of Dr Braun, although he said that the plaintiff would only be able to work in light physical or administrative duties and in a supportive environment. Dr Khan said the plaintiff could perform activities within restrictions, including lifting no more than 2 kilograms with his left hand. Dr Mutton said the plaintiff did have a capacity for work, again within similar restrictions including lifting of 5 kilograms, as did Mr Shannon. It should be noted, however, that all doctors imposed considerable restrictions on the sort of employment tasks the plaintiff should undertake. Mr Shannon was of the view that none of the proposed alternative areas of employment were suitable for the plaintiff. Dr Mutton said some were suitable, although work would need to be restricted to lighter duties, and at bench height.
31 Ms Ryan also pointed to the WorkCover Certificates of the general practitioner, certifying the plaintiff as suitable for light alternative duties within restrictions.
32 It should be noted, however, that the plaintiff’s past work history is somewhat restricted. He has only ever worked in areas as a store person, machine operator, forklift driver or despatch person. He has never worked in clerical duties. I accept his evidence, which I found was given in a forthright and frank manner, that even notwithstanding the computer course he undertook, he has only very limited computer skills. In my view, given his background, skills and education, clerical work would be beyond him, even with retraining.
33 Any employment for which the plaintiff has a physical capacity must be “suitable employment” as defined in s5 of the Act. That definition requires an account be taken of the medical opinions, the nature of the plaintiff’s pre-injury employment, his age, education, skills, work experience and any occupational rehabilitation services which have been provided. I note the plaintiff is now fifty-two years of age and has only had limited education. I accept his evidence that there are some restrictions on his capacity to read and write in English. Because of the ongoing pain and limitation of movement in his shoulder[13], most of the practitioners say that the restrictions upon the tasks in any employment are considerable, some suggesting he should not lift weights of more than 2 kilograms, and some of 5 kilograms.
[13]In the course of his evidence, the plaintiff demonstrated he was not able to raise his left arm above shoulder height without considerable pain.
34 While I accept the opinion of most practitioners that there is, theoretically, a capacity for light restricted duties, given the plaintiff’s physical injuries, I am not satisfied that that capacity relates to “suitable employment” as that phrase is defined. Realistically, taking into account in particular the plaintiff’s age, work experience and the considerable restrictions placed upon any employment tasks, he has little if any work capacity as a result solely of the injury to his left shoulder.
35 In these circumstances, the plaintiff’s application both in relation to pain and suffering, and economic loss succeeds. I shall make consequent costs orders.
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