Janneker v Dental Health Services Victoria
[2017] VCC 911
•2 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-00688
| CARMEL JANNEKER | Plaintiff |
| v | |
| DENTAL HEALTH SERVICES VICTORIA | First Defendant |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 February 2017 | |
DATE OF JUDGMENT: | 2 March 2017 | |
CASE MAY BE CITED AS: | Janneker v Dental Health Services Victoria & Anor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 911 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right shoulder – injury to the left shoulder – whether the loss of earning capacity consequences are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: The plaintiff is granted leave to bring a proceeding at common law for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr J Valiotis | Slater & Gordon Ltd |
| For the Defendants | Mr D Masel with Mr R Lewis | Wisewould Mahony |
HIS HONOUR:
Introduction
1 The plaintiff is a forty-seven-year-old married woman who suffered injury to her right shoulder and then her left shoulder, in the course of, and within the scope of, her employment with Dental Health Services Victoria, the first defendant.
2 The defendants conceded that the injury suffered by the plaintiff to her right shoulder and left shoulder constitute a single body function. It also conceded that the impairment of the body function is productive of pain and suffering consequences which constitutes a serious injury under paragraph (a) of the definition of “serious injury”.
3 The defendants deny that the impairment of the body function is productive of loss of earning capacity consequences which constitute a “serious injury” under that paragraph.
Some background facts
4 It is necessary to set out some of the background facts in order for my reasoning to be properly understood.
5 The plaintiff suffered injury on 18 April 2012. At that time, she was employed as a receptionist and later, as a senior clerk in charge. Her work included handling files. On that day, as she was taking files off the top shelf from shelving where they were stored, the shelving collapsed. She attempted to grab files that were falling, with the result that her movements were reactive to the shelf collapsing, which resulted in her feeling immediate pain in her right shoulder.
6 The plaintiff consulted her general practitioner, who referred her to Mr Doig, orthopaedic surgeon, who organised for the plaintiff to undergo an ultrasound and then an MRI scan. Mr Doig considered that the plaintiff had suffered a full-thickness tear of the right rotator cuff. He recommended that she undergo surgery, which he performed on 18 September 2012, in the form of a right open rotator cuff repair with an acromioplasty.
7 The plaintiff returned to work on modified duties. The condition of her right shoulder prevented her from undertaking heavy lifting and repetitive movements of her right shoulder and arm. As a result of the impaired function of her right shoulder, she favoured her left shoulder and arm, with the result that she overused it. She was referred back to Mr Doig, who organised for her to have an ultrasound, which indicated that she had suffered a full-thickness tear of the rotator cuff in that shoulder. He recommended that she undergo surgery, which he performed on 18 March 2014 in the form of a left rotator cuff repair with an acromioplasty.
8 The plaintiff had conservative treatment before and after each episode of surgery. This was essentially comprised of physiotherapy, chiropractic therapy/treatment and the prescription of painkilling medication.
9 The plaintiff returned to work with the employer. She was unable to cope with the tasks she was required to perform, which were essentially similar to what she was required to undertake before she was first injured, but with modifications. She resigned from that employment on 18 August 2016.
10 The plaintiff subsequently obtained alternative employment with a periodontist. The plaintiff is one of a number of women who are employed to undertake the administrative work in the periodontal practice. She commenced that employment on 3 October 2016. The tasks which she performs are absent the more provocative tasks of handling files and filing. She describes the tasks she performs as that of an administrative assistant, making orders for the periodontist with whom she works closely, undertaking some chair-side assistance when he undertakes surgical work, and handling small boxes containing dental hardware.
11 Initially, the plaintiff was asked to work three days per week, that is, 24 hours per week, and later, she was asked to work four days per week. She agreed. However, after she underwent training, she found it difficult to cope with four days’ work per week. She described the problem thus:
“… Realistically, even though there is no lifting of files, I simply found it too difficult to cope with working four days per week. Handling the stock, providing chair side assistance and computer work can get quite repetitive and still takes a toll on my shoulders because it is a busy practice. I spoke with my manager about the difficulties I was experiencing and as of the week of 12 December 2016 my hours had to be reduced. I now work three days per week.”[1]
[1]PCB 57
12 The plaintiff describes three days per week as being “my absolute maximum”. She described working four days a week as something which she gave a “real go”, and even now she says that she struggles with three days per week. The consequences of working three days per week were described by her thus:
“After a day’s work, I am in pain and very fatigued and drained. Administrative work aggravates my pain but that is all I am trained in. My shoulders are generally throbbing and aching by the time I come home. I often just come home and rest after having dinner. On most work nights I am in bed early, sometimes as early as 7 PM. I literally spend the weekend resting to recuperate for the work week ahead. I have found this pattern has not changed much even after reducing my working days to 3 days per week.”[2]
[2]PCB 57
13 It should be noted that the plaintiff was not only working for the periodontist, but was also working as a cleaner for a cleaning company known as “Made Over Properties” for which she received, for example a gross income of $4,510 for the year ending 30 June 2012. She is clearly incapacitated for that work, and in any event, the defendants did not seek to argue otherwise.
14 The plaintiff swore two affidavits, on 21 September 2015[3] and 22 December 2016.[4] In addition, there are affidavits of Ryley Bruce Janneker, sworn 21 December 2016[5] and Floyd Mathys, sworn 16 December 2016.[6] The plaintiff’s affidavits essentially set out her medical treatment and the pain and suffering consequences and loss of earning capacity consequences which have resulted from the impairment of the function of her shoulders. The other two affidavits confirm much of what the plaintiff says about those consequences.
[3]PCB 31-53
[4]PCB 54-61
[5]PCB 62-66
[6]PCB 67-69
15 In conceding that the plaintiff’s pain and suffering consequences are serious, I assume that the defendants accepted what the plaintiff has deposed to in her affidavits, as well as in the other two affidavits, and the plaintiff’s medical opinions relevant to the nature and degree of the impairment of function of her shoulders.
16 Additionally, it was my clear understanding that the defendants did not challenge the plaintiff’s evidence that she is incapacitated for the work she was doing prior to suffering injury to her shoulders.
17 The issues raised by the defendants essentially can be summarised as follows:
·Does the plaintiff have the physical capacity to undertake her present work tasks in her present job full-time?
·If she is incapacitated for work beyond what she is doing in her present job, is that incapacity permanent?
18 Both counsel referred to the body of medical evidence contained in both Court Books. I do not propose to do that, because there are only two medical practitioners who have examined the plaintiff subsequent to commencing in the alternative employment, and know of her reduction in working days from four days down to three days. They are Mr Doig, and Dr Mutton, consultant occupational physician.
19 Mr Doig’s most recent medical report is dated 1 December 2016. He made an assessment of her and reached the following conclusion:
“… However she has come back to see me with further problems, particularly on the right side and that is causing her more and more trouble. The prognosis for the left side is very good. The prognosis for the right side is now a little more guarded. She had been doing very well and things seem to be progressing well, but she has gone backwards to a certain extent. The Affidavit that she has sent along goes along with the history that she has given to me.”[7]
[7]PCB 123
20 Mr Doig then described the extent of the restrictions that he would place on her capacity to undertake physical movements:
“As a consequence of the physical injury to both shoulders, she is restricted in employment involving lifting, twisting, pushing, pulling, or carrying, or repetitive pushing, pulling or carrying, or repetitive or prolonged use of the right shoulder and overhead activities to a moderate to marked extent … As a consequence of her physical injuries to her shoulder[s] she now no longer has the capacity to perform her pre-injury duties. In my previous report, I felt that she had actually improved quite considerably, and she was capable of returning to work doing her pre-injury duties and in fact had done that. When she presents now it would appear that particularly the right shoulder has deteriorated and therefore she is going to have significant difficulty in doing her pre-injury duties, particularly lifting, carrying, and filing above shoulder height.”[8]
[8]PCB 124
21 In terms of employment capacity, Mr Doig then said:
“… I consider that she does have the capacity to perform suitable employment. This would be on a part-time basis. There would have to be no lifting or carrying. There would be no work above shoulder height. As far as the hours are concerned depends very much on how she progressed as to the number that she was able to do.”[9]
[9]PCB 124
22 The plaintiff saw Mr Doig in December 2016 when she had a steroid injection which she described as being of no benefit to her.[10] She is to be reviewed by him some time in March 2017, and I understand it is to see what else he can offer her by way of treatment, if any is available which might be of benefit to her.
[10]Transcript 18-19
23 The plaintiff submitted that she has undergone two episodes of surgical treatment, other treatment by way of physiotherapy, chiropractic and the use of medication, and cortisone injections, all of which amount to a significant body of medical treatment. She also submitted that she persisted with her work until she could no longer tolerate the tasks required of her before resigning, and subsequently, taking up alternative work which she has also found physically taxing.
24 The foregoing summary of the plaintiff’s submission was made to support the conclusion urged upon me that I should accept that the plaintiff is both a creditworthy and reliable person whose evidence I should accept that she cannot work more than the days and hours she is presently working doing very light work which constitutes the extent of her retained capacity for work.
25 The defendants submitted that I should accept the opinion of Dr Mutton, who considered that the plaintiff can work full time because the provocative aspect of the tasks she was previously performing have now been removed. In other words, she is doing very light work which is not overly taxing, and there is no sound reason why she cannot work at least four days per week if not full time.[11]
[11]DCB 7
26 The defendants also submitted that the evidence of the plaintiff is not supported by medical opinion. Essentially, the more precise opinion has been proffered by Dr Mutton, whereas Mr Doig has not proffered an opinion directly on the issue whether the plaintiff is only capable of working three days per week as opposed to four days or more.
27 I am not persuaded by the defendants’ submissions. As I made the point during submissions, it is very obvious that medical practitioners rely heavily upon a history given by a patient which is then accompanied by whatever radiology might be available and then a clinical examination in order to then use the aggregate of all of that to arrive at an opinion, and in this instance, an opinion whether the plaintiff has a retained capacity for employment, and to what extent.
28 I read the opinion of Mr Doig as being consistent with an accepted clinical approach by him, and an acceptance that the plaintiff has tested, and is testing, herself in the workplace to see how she progresses. I infer from that part of Mr Doig’s opinion that if the plaintiff has undertaken a road test, and has found a point at which she is unable to tolerate work, then he would consider that to be reasonable.
29 I note that the plaintiff’s general practitioner is presently certifying the plaintiff as fit for work three days per week, eight hours per day, with similar restrictions as Mr Doig would apply to any work which the plaintiff is to undertake. The medical certificate is dated 8 February 2016.[12]
[12]PCB 104, and also see the opinion of the general practitioner at PCB 108-112, and in particular, at PCB 109
30 I will next turn to the question of permanency. Is the plaintiff’s incapacity for work at her present level permanent? The word “permanent” has been the subject of debate, but is by no means controversial. It conveys the probability that an impairment or other condition will last and not mend or repair, or at least not to any significant extent, or is likely to last for the foreseeable future. It does not import the necessity to prove any greater degree of certainty.
31 The plaintiff struck me as being a very reasonable woman who has done the best she can to return to work utilising her retained capacity for employment. The fact that she has found it difficult to work four days, and finds three days tolerable, has nothing about it which can be seriously criticised.
32 In the end, whether I accept the plaintiff’s evidence is really what I make of the medical evidence and the plaintiff’s evidence.
33 I accept the opinion of Mr Doig who, after all, is the treating surgeon and is someone who understands the plaintiff probably better than any of the other medical practitioners who have treated the plaintiff and who have offered opinions on a medico-legal basis.
34 I consider that his opinion that the plaintiff make an estimate of her progress is a sensible approach, and one which is consonant with general medical practice and certainly what I have seen as both a barrister practising in this area and as a Judge sitting in the common law jurisdiction.
35 The fact that Dr Mutton disagrees must be weighed into the balance. It is an opinion to be respected because of his level of expertise in occupational medicine; however, his opinion is part of the matrix of evidence in this application. I do not need to remind anyone that this is not a trial by medical practitioner – it is a trial by judge making findings of fact and applying the relevant law.
36 Lastly, I do not accept that there is an issue of permanency raised on the facts of this application. The fact that the plaintiff has sought further medical treatment is for symptomatic treatment not curative treatment. It has not provided her with sufficient relief from her symptoms for her to tolerate the work she is doing to any greater degree. The fact that she is off to see Mr Doig again cannot, of itself, suggest that there is some treatment she will be provided that will change her present circumstances, and indeed, that is not the case, because if it were, both Mr Doig and Dr Mutton would have said so, as would the other medical practitioners who have commented on the plaintiff’s medical condition.
37 In the end, I accept the opinion of Mr Doig in preference to that of Dr Mutton. I accept the plaintiff’s evidence that she has progressed in her workplace as far as she can, given the significant impairment of the function of her shoulders. Therefore, I am satisfied that the plaintiff cannot work more than three days per week.
38 The plaintiff and the defendants referred me to figures which are said to demonstrate what the plaintiff needs to prove in order to meet the statutory test for loss of earning capacity. If she is only able to work three days per week, then she comfortably satisfies the relevant statutory test. Given the finding I have made that the plaintiff is only capable of working three days per week, it is not necessary for me to refer to the breakdown of figures.
39 It is for the foregoing reasons that I find that the plaintiff has suffered the requisite degree of loss of earning capacity consistent with the relevant statutory test, and I have made that finding after making the relevant comparison with like impairments and losses.
40 I will grant the plaintiff the leave that she seeks with costs.
Orders
(1) The plaintiff has leave to bring a proceeding at common law to recover damages for both pain and suffering and pecuniary loss for the injuries she suffered in the course of her employment with the first defendant.
(2) The defendants are to pay the plaintiff's costs in accordance with the WorkCover (Litigated Claims) Legal Costs Order 2010, to be assessed by the Costs Court in default of agreement.
(3) Certify for two counsel:
(a) Certify for leading Counsel’s fee on brief at $4,500 per day for one day and 2 hours of special conferences at $450 per hour.
(b) Certify for Junior Counsel’s fee on brief at $2,500 per day for one day and 2 hours of special conferences at $250 per hour, and $550 to receive Judgment.
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