Johnson v Victorian WorkCover Authority
[2017] VCC 924
•10 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-04121
| LYNETTE NADINE JOHNSTON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 June 2017 | |
DATE OF JUDGMENT: | 10 July 2017 | |
CASE MAY BE CITED AS: | Johnson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 924 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right shoulder – whether the plaintiff retains a capacity for suitable employment – consideration of jobs said to be suitable – credit
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: The plaintiff is granted leave to bring a proceeding at common law to recover damages for both pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J N Purcell with Ms K M Manning | Maurice Blackburn Lawyers |
| For the Defendant | Ms M Britbart QC with Ms C Boyle | Minter Ellison Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff is a forty-two-year-old woman who was employed by Horner Recruitment Services Pty Ltd, which is a labour-hire company. It found employment for the plaintiff as a picker and packer with Fibrisol Services Australia Pty Ltd (“Fibrisol”).
2 The plaintiff was injured on 16 April 2012 using a turret, which I understand to be a vehicle used to access stock on shelving. She was operating the turret about three levels above ground when she reached out to grab a 25-kilogram bag, with the result that she felt something pull in her right shoulder.[1]
[1]The plaintiff has been described as a locomotive operator which I assume is another description not only for her work but also for the vehicle that she was operating when she was injured.
3 The plaintiff’s claim for serious injury is brought under paragraph (a) of the definition of “serious injury”; that is, she contends that she has suffered a permanent serious impairment or loss of the function of her right shoulder and arm.
4 Mr D Purcell appeared with Ms K Manning of counsel for the plaintiff. Ms M Britbart QC appeared with Ms C Boyle of counsel for the defendant.
The issues
5 The plaintiff was the only witness required for cross-examination. The cross-examination was largely directed towards the plaintiff’s retained capacity to return to suitable employment.
6 The issues which fell for my consideration were whether the pain and suffering consequences and the loss of earning capacity consequences contended for by the plaintiff are “serious”. There was an issue going to the plaintiff’s credit arising out of why she had not exploited her alleged retained capacity, and in that respect, the attack on her credit was limited and of narrow compass.
The Plaintiff’s background
7 The plaintiff is forty-two years of age. She lives with her female partner at their property at Emerald. Her partner has two children, who are about twelve and nine years of age. The plaintiff and her partner treat the children as their own children. The care of them is shared between the plaintiff, her partner and her partner’s former partner.
8 The property at Emerald comprises the domestic premises of the plaintiff and her partner. It is a one-acre property. They run a bed-and-breakfast business from the property which I understand comprises one self-contained unit.
9 The plaintiff’s partner is a bookkeeper by occupation. She conducts her business affairs from the property at Emerald. She is principally involved in running the bed-and-breakfast business.
10 The plaintiff was born in New Zealand. She migrated to Australia in 2005. She was last educated in New Zealand. She left formal schooling part of the way through the equivalent of Year 10. Subsequently, she has been employed in manual work in factories and in the printing industry.
11 The work which the plaintiff undertook on a day-to-day basis with Fibrisol was factory work, which required the plaintiff to undertake manual tasks in the course of picking and packing.
The Plaintiff’s medical treatment
12 The plaintiff reported the incident involving the turret to her supervisor. After obtaining initial medical treatment, she lodged a claim which was accepted by her employer.
13 The plaintiff first saw Dr Li, general practitioner, on 18 April 2012.[2] She considered that the plaintiff had suffered right shoulder rotator cuff tendinitis. Initially, she was treated with medication and referred to a physiotherapist. She was provided with a certificate stating that her capacity for work from 18 to 25 April 2012 was minimal right shoulder movement with no lifting of more than 5 kilograms.
[2]Plaintiff’s Court Book (“PCB”) 37-41
14 Dr Li reviewed the plaintiff on 23 April 2012. She noted that the plaintiff’s right shoulder pain had improved with medication and modified duties. She referred the plaintiff to have an ultrasound. She gave her a further certificate from 23 April to 1 May 2012 with the same restrictions, and no forklift driving duties.
15 On review on 1 May 2012, Dr Li considered that the ultrasound demonstrated mild right subacromial bursitis with intact rotator cuff tendons. She referred the plaintiff to have a cortisone injection into the right subacromial bursa on 4 May 2012 which gave the plaintiff significant improvement in her symptoms. She gave the plaintiff a certificate with the same restrictions from 8 to 15 May 2012.
16 Dr Li subsequently reviewed the plaintiff on a number of occasions. When she did so on 5 June 2012, the plaintiff presented with “worsening right triceps pain with clinical tenderness and right shoulder restrictions on movement”.[3] She noted that the plaintiff had been performing picking and packing duties. She reinstated earlier imposed working restrictions which she had relaxed because of the apparent improvement in the plaintiff’s function.
[3]PCB 39
17 Dr Li subsequently referred the plaintiff to have an MRI scan which was undertaken on 22 June 2012. The scan demonstrated a small acromion under-surface spur associated with mild subacromial-subdeltoid bursitis and an intrasubstance tear of the mid to posterior proximal supraspinatus tendon underlying the spur. She was referred to Mr Booth, orthopaedic surgeon, who advocated conservative treatment, and later, Mr Tran, orthopaedic surgeon.
18 Mr Tran took over the treatment of the plaintiff. The plaintiff first saw him on 17 July 2012.[4] He considered that the plaintiff required surgery. He operated on her right shoulder on three occasions. Before he undertook the first operation, the plaintiff had stopped seeing Dr Li and commenced seeing Dr Graeme Smith, general practitioner.
[4]PCB 30-36
19 The first operative procedure was an arthroscopy undertaken by Mr Tran on 1 August 2012. It demonstrated that the right rotator cuff had disrupted nearly completely. He repaired the disruption, and post operatively, the plaintiff was referred to physiotherapy for rehabilitation. She apparently progressed well, but developed symptoms in her right elbow for which she had physiotherapy, ultrasound treatment and a local injection. An MRI scan demonstrated that the plaintiff had developed lateral epicondylitis.
20 The initial arthroscopic repair of the disruption failed. Mr Tran advised the plaintiff to undergo further surgery, which he undertook on 10 December 2013. It would appear that he repaired the disruption and undertook what he described as a further delamination of the rotator cuff tendon, and a debridement of the tear. Post operatively, she was referred to have six weeks of physiotherapy. She was using anti-inflammatory and painkilling medication for symptomatic pain relief.
21 When Mr Tran reviewed the plaintiff on 23 June 2015, he noted that her right shoulder was progressing very poorly. A further MRI scan demonstrated that the previous repair had only shown signs of partial healing. He advised the plaintiff to undergo further surgery, which he undertook on 14 January 2015. During the operation he found a recurrent tear of the previous repair with what he described as a full extension. A repair was undertaken. A subsequent ultrasound demonstrated good surgical healing of the tear.
22 In the meantime, while the plaintiff was being treated by Mr Tran, she was seeing Dr Smith. He referred her to Dr Thomas, consultant in rehabilitation in pain medicine, who saw her on 14 September 2015.[5] After examining her right shoulder, Dr Thomas considered that the plaintiff had suffered a significant right shoulder dysfunction due to an inoperable supraspinatus tendon tear. He added that he thought that there was an element of frozen shoulder or capsulitis. Although he suggested she might undergo a manipulation under anaesthetic and anaesthetic blocks as a prelude to other treatment, he was not convinced that further physical therapy, nor a rehabilitation program, was likely to assist her at that stage.
[5]PCB 42-44
23 Dr Thomas referred the plaintiff to Dr Courtney, physician, who was to consider whether the plaintiff should undergo any of the further treatment proposed by Dr Thomas. The plaintiff has not undergone that treatment.
24 Dr Smith has continued to treat the plaintiff. In a report dated 22 February 2017, he summarised the plaintiff’s position as follows:
“So in summary, Lynette Johnston has suffered a right shoulder, elbow and neck injury related to her work and as a result of this and various surgeries, injuries she has suffered she now has a chronically painful, restricted, weak right shoulder. This condition is now permanent and probably unable to be corrected. I will make note that I have made a referral for her to see another shoulder surgeon asking the specific question ‘could the shoulder be replaced’. If the shoulder could be replaced and she would be then provided with a painless shoulder, her working situation may change.”[6]
[6]PCB 25
25 The plaintiff returned to work on light duties after the first episode of surgery. She remained on light duties until March 2013, when her employment was terminated. The plaintiff understood that the termination came about because she was to have further surgery. She has not returned to any employment since March 2013.
26 The plaintiff made an attempt to do volunteer work in mid-2013 with St Vincent De Paul as part of a return to work plan. She worked up to three weeks at a store in Boronia doing light packing work. It aggravated her shoulder to the extent that she ceased performing that volunteer work. She was informed that unless she was able to work each day that she should stop undertaking that work, so that is what the plaintiff did.
27 Dr Smith provided a report dated 19 September 2013 which took up an issue of the plaintiff’s inability to return to work with St Vincent De Paul. He set out the reasons why she ceased that work, which are as follows:
“The area I understand needs resolution is the reason that Lynette was unable to continue the return to work program in May 2013. I noted that she had returned to work as per plan at St Vincents and I noted that she had been back to work for one week, and was complaining that her shoulder was very sore.
I next saw her on the 5th of June 2013. She stated that she wasn’t able to work, that her shoulder had been getting a lot worse. The following week she was complaining of swelling around the shoulder and it was very tender in the shoulder and I gave her a work certificate stating that she was unfit to work at that point. In other words the return to work plan had failed and I requested an MRI of the right shoulder. This took some time to preform, as Xchanging initially refused the request for the MRI, and it needed a further letter explaining the reasons why I was requesting an MRI. Since that time she has not been able to return to work.”[7]
[7]PCB 25a
The medico-legal assessments
28 On the plaintiff’s side, she was examined by Mr Grossbard, orthopaedic surgeon, on 4 April 2017.[8] He obtained a reasonable history from the plaintiff of relevant aspects of her background, working history and medical treatment following the injury. Armed with that, he considered that she was suffering persistent right shoulder dysfunction following three operative procedures to repair the rotator cuff tear, and her recovery had been complicated by the development of capsulitis which added to her ongoing disability.
[8]PCB 64-68
29 Mr Grossbard considered that the plaintiff could not return to her pre-injury employment. He considered that she was limited to simple sedentary work undertaken below shoulder height and not requiring lifting or repetitive forceful movement. He noted her limited computer skills and limited literacy which he considered would make finding an appropriate job for her more difficult. He did not consider that she was a candidate for any further treatment.
30 Mr Grossbard was provided with the reports of Ms Green, psychologist, dated 5 June 2017, and Dr Horsley, occupational physician, dated 10 April 2017. They referred to proposed jobs said to be consistent with suitable employment, namely, storeperson/order picker/assembler, printer, hand packer, call centre information clerk and enquiry/information clerk, clerk receiving and dispatch, housekeeper/room attendant, courier driver and retail sales assistant. Mr Grossbard considered that none of those proposed jobs were suitable, and he based that upon the plaintiff’s limitations with literacy and what he described as “physical issues”, which I take to mean the limitations he referred to previously.
31 Mr Grossbard was the only medico-legal orthopaedic surgeon engaged by either side. All the other medical reports are from occupational physicians, save in only one respect, which I will return to later.
32 Again, on the plaintiff’s side, Dr Horsley examined the plaintiff on 10 April 2017.[9] She was provided with a vocational assessment report of Ms Katrine Green dated 5 June 2017, a Co-Work Vocational Assessment Report dated 19 May 2017, a medical report of Dr P D Clarke, occupational physician, dated 10 November 2016, and medical reports of Dr Dominic Yong, occupational physician, dated 18 January 2017 and 22 May 2017. The latter three were commissioned by the employer relevant to the plaintiff’s capacity to return to suitable employment.
[9]PCB 48-63
33 Dr Horsley considered that the plaintiff should have a significant number of work restrictions, including:
· avoiding repetitive overreaching, repetitive pushing and pulling, above chest height activities, lifting items greater than 8 kilograms except on an occasional basis, avoiding lifting items up to 5 to 8 kilograms on a repetitive basis
· avoiding working in awkward or confined spaces
· avoiding using tools with a vibratory component
· avoiding forceful movements involving the right arm
· avoiding repetitive activities involving the right arm
· avoiding prolonged static postures involving the right shoulder girdle; and
· she considered that the plaintiff had tolerance to sit for a couple of hours, occupy normal static and dynamic standing tolerance, walking a couple of hours and a local driving tolerance of 30 minutes and automatic vehicle.[10]
[10]PCB 59
34 Additionally, Dr Horsley specifically addressed Dr Yong’s opinion in his report dated 22 May 2017, in which he considered that:
· being a bed-and-breakfast operator would exceed recommended restrictions
· work as an RSPCA volunteer was likely to exceed recommended restrictions
· work in traffic control would require an individual assessment to see if it complied with recommended restrictions, but had the potential to be considered suitable
· work as a courier/delivery driver would exceed recommended restrictions
· work as a weighbridge operator complied with recommended restrictions, but he considered a graduated return to work was appropriate
· work as an electronic assembler would require individual assessment to see if it complied with recommended restrictions, but had the potential to be considered suitable.
35 Dr Horsley largely agreed with Dr Yong’s opinion.
36 On the defendant’s side, Dr Clarke examined the plaintiff on 31 July 2013 and 9 November 2016.[11] He was provided with the Co-Work Vocational Assessment Report dated 19 May 2017. He considered that the jobs were all suitable. This, of course, is in stark contrast to the opinion of Dr Horsley and Dr Yong, who I will get to shortly.
[11]Defendant’s Court Book (“DCB”) 40-50
37 Dr Horsley’s summary of Dr Yong’s opinion appears to me to be correct in all respects. Therefore, I do not propose to summarise his opinion any further.[12]
[12]DCB 58-73
38 I should add at this point that while I have not summarised the examination findings of each of these medical practitioners, it is clear that the plaintiff demonstrated:
· muscle wasting on the right side
· significant limitation of movement and features consistent with frozen shoulder or adhesive capsulitis; and
· some right shoulder dysfunction and deconditioning.
39 Whilst it is understandable that each examining medical practitioner found different levels of each of these features, there is a significant commonality in their findings, leaving me with the impression that they all appeared to agree, save for Dr Clarke, that the plaintiff suffered a major injury to her right shoulder which now restricts her very significantly in terms of her general activities and her capacity to return to suitable employment.
40 The plaintiff was cross-examined about her knowledge and use of a computer, and in particular, knowledge of Excel, Word, using the Internet, eBay and other aspects of basic computer use to demonstrate that her knowledge of computers and software is sufficient for it to be useful to her in obtaining suitable employment where such employment involved or required knowledge of that kind.
41 The plaintiff was also cross-examined about her literacy. The plaintiff gave evidence that her literacy skills are modest. The plaintiff was taken to histories recorded by medical and non-medical assessors which it was said contradicted her statements that her knowledge of computing was more than modest, and that her literacy skills were reasonable.
42 I accept the plaintiff’s evidence that she is a relatively modestly educated woman, who has modest computer and literacy skills, and has a strongly stated preference for working in a factory or warehouse environment. I should add at this point that I considered that the plaintiff gave her evidence in a very straightforward and entirely believable manner. I unhesitatingly accept her evidence in whole.
43 In her second affidavit sworn 13 June 2017, the plaintiff described the pain and limitation of movement she experiences as follows:
“5.I have constant pain in my shoulder. It fluctuates and is worse if I use my right shoulder/arm. For example, if I vacuum or mop in the one day, then I usually pay for it afterwards with an increase in shoulder pain and I need to take the strong pain killers. I have a light weight vacuum and a steam mop to try and make those sorts of tasks easier. I avoid heavier housework such as hanging out the washing or making the beds. I rely my partner for help with the heavier housework.
6.I continue to have a reduced range of movement in my shoulder. …
7.… Repetitive use of my right arm at a keyboard aggravates my symptoms. …
…
11.Some days I feel like I could do some sort of light work and then I will do a light activity, like mopping the floor and my shoulder flares up and I need to rest and take strong pain killers. Based on that, I do not believe I could reliably attend for work and I doubt very much that I could do any meaningful paid work. I have difficulty driving. If I drive for more than about 30 minutes, my shoulder becomes very sore, so just getting to work would be an issue for me. Realistically I am a manual working [skil worker] and I am now unfit for manual work.”[13]
[13]PCB 19-22
44 Under re-examination, the plaintiff said that the pain became a lot worse after the first episode of surgery. She has experienced persistent swelling in the joint and tenderness in her shoulder, even when she does simple things. She described the pain as rising to 9 out of 10 at worst. It comes and goes from that level, depending on what she does around her house. There are days, and periods, when the pain would be 4 or 5 out of 10. She gave an example that even preparing dinner is enough to cause her right shoulder to flare up, and she added that anything she does using her right shoulder will result in a flare-up.[14]
[14]Transcript 55-57
45 I reject the evidence of Dr Clarke. It is in stark contrast to the evidence of Dr Smith, Mr Grossbard, Dr Horsley and Dr Yong. Their evidence has a common thread that the plaintiff is not fit to perform her pre-injury employment nor employment which does not fit a significant body of limitations referred to by Dr Horsley and Dr Yong. Furthermore, Dr Clarke blandly opined that all of the proposed jobs were suitable, without saying why. That makes his opinion difficult to understand in the context of the opinions of the other medical practitioners I have just referred to who have analysed those jobs. In particular, I am referring to Dr Horsley and Dr Yong.
46 Dr Horsley and Dr Yong have assessed jobs as a weighbridge operator and as an electronic assembler as being potentially suitable.[15] Each of those jobs appear to require some manual work. For example a weighbridge operator is required to maintain the weighbridge and its general area, including the office, in a clean, tidy and hazard free condition, and engage in yard supervision and traffic direction, as well as collecting payment and weighing loads. An electronic assembler is involved in a multitude of physical tasks, for example locating, positioning and securing components on workbenches, punching and drilling mounting holes in parts and assembling products, assembling and securing components and securing assembled parts by nailing, screwing, gluing and doweling, riveting, crimping and soldering and spot welding components. The description goes on with a litany of other tasks which could only be undertaken manually. It must be remembered that the plaintiff is right-hand dominant, and is likely to require the use of both hands in order to undertake all of these tasks.
[15]The descriptions of those jobs are at DCB 111 and 112
47 I have considered the definition of “suitable employment”. When I look at the plaintiff’s age, education, background, work history and transferable skills in the context of the whole of the evidence of the plaintiff and, most importantly, the medical evidence, I am satisfied that she has suffered a major injury to her right shoulder which significantly impairs the function of her right shoulder to the extent that there is very little that she can do without suffering a flare up.
48 Given her evidence that relatively simple domestic tasks will produce a major flare up, then it is difficult to appreciate how it is that she could return to any of the jobs proposed by Co-Work, nor the two jobs considered by Dr Horsley and Dr Yong.
49 I am satisfied that the plaintiff has discharged the onus which she bears under s134AB(19)(b) and (38)(g), that her loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than significant or marked, and as being at least very considerable.
50 As a consequence of being so satisfied, I do not need to separately consider whether the plaintiff’s pain and suffering consequences are also serious. I should add at this point that I have no difficulty in reaching the conclusion that they are, and I said as much in the course of the hearing of this application.
51 It is for these reasons that I grant the plaintiff the leave which she seeks.
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