Jones v Victorian WorkCover Authority

[2021] VCC 1088

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE VIA ZOOM

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-05715

ASHLEY JONES	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne (via Zoom technology)
DATE OF HEARING:	6 August 2021
DATE OF JUDGMENT:	11 August 2021
CASE MAY BE CITED AS:	Jones v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2021] VCC 1088

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – injury to the right shoulder – whether injury is “serious” – pain and suffering not in dispute – leave sought for pain and suffering and pecuniary loss

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s325

Cases Cited:Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Richter v Driscoll [2016] VSCA 142

Judgment:                  Leave granted to the plaintiff to bring common law proceedings for the  

recovery of pain and suffering damages and loss of earnings damages

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Fitzpatrick	Slater and Gordon
For the Defendant	Mr B McKenzie	Hall & Wilcox

HIS HONOUR:

Introduction

1The plaintiff, Mr Ashley Jones, is a thirty-six year old right-handed man.  He is now separated.  He has two children from separate relationships, a teenage daughter and a six-year-old son.  He left high school during Year 11 and commenced a painting apprenticeship.  Thereafter, he has worked in a variety of manual-type employments.  He has an impressive resumé that demonstrates a solid work history in manual-type or physical-type employments and sets out the various education and qualifications that he has obtained.[1]  He has qualifications in civil construction, traffic management and various certificates and licences related to construction and infrastructure-type employments.

[1]Defendant’s Court Book (“DCB”) 205

2The plaintiff has had a few aches and pains and injuries over the years, but nothing that is relevant for present purposes.

3In 2018, the plaintiff commenced employment with McKie Enterprises Pty Ltd, trading as Vicsteel Structural (“the employer”) as a labourer assistant.  It is agreed that his earnings in that employment were $97,760 gross per annum.

4Whilst working for the employer on 26 November 2018, on the new Hilton Hotel site in Flinders Lane, Melbourne, the plaintiff suffered injury to his right shoulder when manoeuvring pieces of steel (“the accident”).

5Soon after the accident, the plaintiff ceased work and effectively has not worked since then.  He has had two surgical procedures to his right shoulder and a number of injections.  His current treating surgeon, Mr Pullen, describes the plaintiff as suffering “right shoulder post-operative capsulitis, long head of biceps tendon rupture and chronic pain syndrome”.[2]

[2]Plaintiff’s Court Book (“PCB”) 69

6The plaintiff has had rehabilitation treatment under the care of Dr Clayton Thomas.  That treatment has now been completed.  His ongoing care is otherwise with the treating general practitioner, Dr Wil Van Rheede.  In a report dated 16 July 2021, Dr Van Rheede summed up the plaintiff’s treatment and situation and it is convenient to reproduce the report in full as follows:

“Diagnosis of your client’s condition and treatment:

He has suffered a ruptured long head of biceps and a failed tenodesis of the muscle with a persisting subacromial bursitis in the R shoulder resulting in a Popeye muscle, with loss of function and strength of the R upper limb and persisting pain, not suitable for further surgical intervention.

Prognosis of his condition:

Physical rehabilitation may or may not be of help, analgesics and rest is more likely to be the way forwards, avoiding activity that aggravates the problem, doing work the [sic] is protective of the R upper limb.

Whether the condition has stabilised:

There are no longer any surgical interventions that can help, there may be Pain management options that may improve long term pain management, but options going forwards are limited.  Mostly stabilised apart from a few pain management options that may still be explored.

The likelihood and nature of any long term deterioration in the condition:

This is mostly a condition affecting the soft tissues, once scarring has stabilised and nerve damage has settled, the pain should also settle to a manageable amount and not deteriorate much if further damage can be avoided, through protecting the R upper limb going forwards.

Whether your client requires any further specialist assessment and what specialty:

The only further assessment is Pain specialist assessment to look at optimising pain management associated with the injury and aspects of physical rehabilitation psychotherapy that might still apply.

Your client’s current capacity for pre-injury work:

Will never be able to return to hard physical work due to the nature of the injury and the future outlook.

Your client’s current capacity for work in general:

There is a capacity for some work that is protective of the R upper limb provided it fits within his experience and skill level and endurance levels imposed by his current pain and discomfort experience.

Your client’s capacity to undertake work in future:

See previous question – this is likely to only improve over time, especially if he is to upskill himself and if his pain should settle some more.”[3]

[3]PCB 43-44

7This is a “serious injury” application in respect to the workplace injury.  The relevant legal principles are well known and are not in dispute.

8The plaintiff was represented by Mr Fitzpatrick of counsel.  The defendant was represented by Mr McKenzie of counsel.  As is the usual course, the parties tendered affidavits, medical reports and other relevant material.  The plaintiff was the only witness required for cross-examination.  I have taken into account all of the tendered evidence, together with the transcript of the plaintiff’s oral evidence, but I shall refer to it only to the extent necessary in these reasons.

9The plaintiff seeks the leave of the Court to commence a common law proceeding for the injury to the right shoulder suffered in the course of his employment with the defendant.  He seeks leave to commence a common law proceeding for both pain and suffering and pecuniary loss damages.

10This is not an application in which the defendant seeks to challenge the credit of the plaintiff.  Further, the defendant concedes that the plaintiff’s right shoulder injury is a “serious injury” in respect to pain and suffering consequences.

11Therefore, the issue in dispute is whether the plaintiff is entitled to the leave of the Court to commence a common law proceeding for loss of earning capacity damages.

12There is no suggestion in this application that the plaintiff can return to his pre‑injury employment or to similar heavy employment. The inability to return to pre-injury employment is, in my view, a “very considerable” loss of earning capacity consequence for the purposes of s325(2)(c)(ii) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) and therefore the plaintiff satisfies that part of the statutory provisions.

13The remaining and only issue in dispute is whether the plaintiff suffers the requisite 40 per cent loss of earning capacity as per the statutory formula contained in s325(2)(e), (f) and (g) of the Act.

14The issue in dispute arises in circumstances where the defendant says the plaintiff has both a residual physical capacity for employment and an opportunity to improve his ability to achieve after injury earnings once he has completed appropriate retraining.

15In order to satisfy the statutory formula, the measure of the claimed loss of earning capacity requires a comparison of two matters:

(a)   the gross income the worker is earning or is capable of earning in suitable employment at the date of the hearing (“after injury earnings”); and

(b)   the gross income that the worker was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earnings”).[4]

[4]Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545 at 573, paragraph [89]

16Specifically, it is agreed that the without injury earnings figure is $97,760 gross per annum.  Sixty per cent of that figure is $58,656.  Accordingly, if the plaintiff has an after injury earning capacity of $58,656 or more, then he will fail to satisfy the statutory formula.

The Plaintiff’s pain and suffering consequences

17I have already mentioned that the defendant made the sensible concession that the plaintiff has pain and suffering consequences from his right shoulder injury that are “very considerable”.

18But, I will deal briefly with some of the evidence in respect to the plaintiff’s injury, treatment and pain and suffering consequences, to provide some context to the disputed issue of residual work capacity.

19As mentioned, the plaintiff has required two surgical procedures on his right shoulder.  I have already set out the opinion of Dr Van Rheede that the plaintiff suffered a ruptured long head of biceps and a failed tenodesis of the muscle, with other complications involving the shoulder.  In lay terms, there has been a retraction of the biceps tendon.  The plaintiff has significant ongoing pain in his right shoulder.  He remains prescribed a high dose of medication to manage that pain.  Dr Thomas has recorded the current medication regime as follows:

“I can confirm that his current medication regime of buprenorphine topical patches 40 mg weekly plus Temgesic (buprenorphine sublingual tablets 200 mcg) 1 to 2 per day during aggravations of his pain is reasonable.

This takes him just below the 100 mg oral morphine equivalent which is the permit limit.  The current permit system, in fact, does not require a permit until you get to beyond 100 mg oral morphine equivalent.”[5]

[5]PCB 102

20Pausing here, a striking feature of this serious injury application is the high dose of strong medication[6] that the plaintiff is on and no suggestion anywhere in the recent medical material of the potential to reduce that high level of medication.  That of itself speaks of significant ongoing pain in the plaintiff’s shoulder.

[6]        Transcript (“T) 22, Line (“L”) 25-26; T33, L27-28; T45, L9; T39, L28-29; T41, L22-23; T44, L24-27

21The plaintiff was not really challenged about the pain and suffering consequences as set out in his affidavits. I take into account the consequences as set out in his first affidavit at paragraphs 38-52 (inclusive),[7] and also in his more recent affidavit at paragraphs 15-36 (inclusive).[8]

[7]Affidavit of plaintiff sworn 14 July 2020, PCB 16-18 inclusive

[8]Affidavit of plaintiff sworn 30 July 2021, PCB 22-25 inclusive

The medical and vocational evidence

22I have already set out the most recent opinion from Dr Van Rheede.  Dr Van Rheede continues to provide the plaintiff with WorkCover certificates of capacity.  The most recent certificate of capacity is dated 30 July 2021.[9]

[9]PCB 32

23In that certificate, Dr Van Rheede notes the plaintiff to have a capacity for suitable employment, but that needs to be qualified by the comments that he included earlier on in the certificate.  In a section headed “Physical function – additional comments”, Dr Van Rheede said of the plaintiff―

“Not suitable for physical work, but suitable for vocational rehabilitation:  4 hours per day 5 days per week.  Restrict to admin tasks with R upper limb.  No lifting with R arm, no reaching up or across, no pushing or pulling > for greater than 2.5 kilograms, (no physical activity with R arm allowed).”[10]

[10]PCB 31

24Dr Van Rheede has not written the plaintiff off for retraining, but he has put restrictions on that, as per his comments in the previous paragraph.  In his most recent report of 16 July 2021, he offers what I consider to be only qualified support for the proposition that there can be a return to work.  The qualification is the plaintiff’s work experience and skill level, but also his endurance levels imposed by his current pain and discomfort.[11]  In circumstances where there is no suggestion that the plaintiff’s pain levels will substantially diminish, as evidenced by the fact he will require ongoing high dose medication, supports a conclusion that the plaintiff’s residual capacity for work, in the opinion of Dr Van Rheede, is equal at best to his capacity for re-training, namely for no more than four hours per day, five days per week, with the restrictions recorded by him including a significant lifting restriction of no more than 2.5 kilograms.

[11]PCB 43

25Mr Pullen, orthopaedic surgeon, has provided opinions regarding the plaintiff’s work capacity.  In a report dated 25 June 2021, Mr Pullen said:

“I have indicated to Ashley that I do not believe he will ever be able to return to his pre-injury employment.  He will be unable to perform heavy lifting, overhead work, repetitive work or full-time hours for the foreseeable future.  I do not believe Ashley will ever be able to return to manual work because of his persistent shoulder problem.”[12]

[12]PCB 72

26Dr Thomas is the other relevant treating practitioner.  His most recent opinion is in the report of 12 July 2021.[13]  In that report, Dr Thomas said:

“I think local physical therapies would be reasonable.  I do not think there is any point reinventing rehabilitation. He accepts this. Given that significant capacity indicates that he has capacity for suitable employment, he now needs to be seen by Occupational Rehabilitation Unit to consider return-to-work options.  This will not be straightforward as his previous work has always been physically based.”

[13]PCB 103

27I accept that Dr Van Rheede, Mr Pullen and Dr Thomas do not rule out retraining or a return to employment.  But equally they place restrictions on retraining or return to employment and the opinions are qualified by reference to the plaintiff’s pain levels enabling a return to work (in the case of Dr Van Rheede) and the fact that he has only ever performed manual work.

28The plaintiff was seen for medico-legal purposes by Dr Joseph Slesenger, specialist occupational physician, at the request of his solicitors.  In a report of 5 February 2021,[14] Dr Slesenger imposed a number of restrictions in respect to any potential return to employment.[15]  In a further report of 19 July 2021, Dr Slesenger repeated his opinion that the plaintiff had no realistic capacity for suitable employment[16] and he further opined that a number of jobs, as identified by the defendant as potentially suitable employment, were in fact not suitable.[17]

[14]PCB 76

[15]PCB 88-89

[16]PCB 95

[17]PCB 96

29Dr Meena Mittal, pain physician and specialist anaesthetist, examined the plaintiff at the request of his solicitors and provided a report dated 20 July 2021.[18]  Dr Mittal opined as follows:

“As a consequence of the physical/organic injury and impairment of Mr Jones’s right shoulder/arm (excluding any psychological or psychiatric condition) he does not have the capacity to perform alternative suitable employment, taking into account his incapacity, age, education, place of residence, skill and work experience. I consider this incapacity to be permanent, that is, likely to last for the foreseeable future.”[19]

[18]PCB 105

[19]PCB 109

30The plaintiff was seen for medico-legal purposes at the request of the defendant by Dr René Dupuche.  In a report dated 20 November 2020,[20] Dr Dupuche stated that he did not believe the plaintiff could return to his pre-injury duties and hours,[21] but that the plaintiff could return to work in modified or alternative duties for “normal hours following a suitable graduated introductory period of some eight weeks”, but with functional tolerances, including that pushing and pulling are highly restricted insofar as they impact on the right shoulder.[22]  Dr Dupuche otherwise endorsed some jobs as identified by the defendant, such as sales representative, but did not approve some other jobs identified on behalf of the defendant, such as traffic management supervisor. 

[20]DCB 16

[21]DCB 21

[22]DCB 21

31Dr Simon Cohen is a consultant pain specialist physician, who examined the plaintiff at the request of the defendant.  In a report dated 4 December 2020,[23] Dr Cohen reported that the plaintiff displayed significant dysfunction affecting the right shoulder and that he did not believe the plaintiff would be fit to return to the heavy manual labour of his pre-injury duties.[24]  He further opined that the plaintiff could return to work in modified or alternative duties “which are protective of the use of his right arm, especially when lifting and raising his hand above his head”.[25]  Dr Cohen went on to opine that the plaintiff had a residual capacity for work and he also endorsed some of the jobs identified by the defendant as suitable and disallowed some others.[26]

[23]DCB 38

[24]DCB 43

[25]DCB 44

[26]DCB 44-45

32The final medico-legal opinion is from Dr Reza Sabetghadam, occupational physician, who examined the plaintiff at the request of the defendant and produced a report dated 17 March 2021.[27]  This report is remarkable because Dr Sabetghadam arrived at a diagnosis effectively of the plaintiff presenting with abnormal pain behaviour and he also questioned whether there had been an injury to the shoulder in the course of employment with the defendant.[28] However, in a supplementary report of 29 July 2021,[29] and seemingly when provided with relevant radiology, the doctor then seems to change his opinion and accept that there has been a full rupture of the longhead of the biceps.[30]  Dr Sabetghadam then goes on to similarly endorse some of the jobs identified by the defendant and reject truck driving as suitable employment.  However, relevantly, he also goes on to qualify his endorsement of various jobs, when he said as follows:

“The inherent requirements of the other occupations listed in the CoWork report are within the limited capacity of Mr Jones, but the bottom line here is, Mr Jones could participate in any occupational duties that do not require power grip with his right hand and simultaneous, frequent or sustained flexion or abduction of the right shoulder beyond 60 degrees.”[31]

[27]DCB 49

[28]DCB 60

[29]DCB 64

[30]DCB 65

[31]DCB 65

33Finally, for completeness, the defendant tendered a range of documents from Workable Consulting and also a CoWork Vocational Assessment and Labour Market Analysis Report dated 7 May 2021[32] and I take that material into account.

[32]DCB 128

Analysis

34The starting point for an analysis as to the plaintiff’s after injury earning capacity is to look at his age, education, training and work experience.  He was a Ward of the State, who left school during Year 11, but to his credit has obtained relevant licences and qualification to work in heavy manual employment and his working life has been spent in those types of employment.  He has no experience for office or sedentary-type employment.

35Having seen the plaintiff in the witness box and considered the totality of the medical material, and bearing in mind the high-dose medication that the plaintiff is on[33], in my view, the opinion of the treating surgeon, Mr Pullen, is correct in stating that the plaintiff will be unable to perform heavy lifting, overhead work, repetitive work or full-time hours for the foreseeable future.  The medical opinions that I have discussed all place restrictions on the plaintiff’s ability to now use his right arm to lift, reach or carry items.  The treating general practitioner is currently certifying that the plaintiff is restricted not only for work but also for retraining for no more than twenty hours per week.

[33]        T22, L25-26; T33, L27-28; T45, L9; T39, L28-29; T41, L22-23; T44, L24-27

36Bearing in mind the definition of “suitable employment” and that in order to translate into a capacity for suitable employment, there is more than just the mere ability to do an aspect of a job, or aspects of a job, from time to time.  In my view, when a “real world” approach is taken, the plaintiff has no realistic capacity for “suitable employment” – consistent with the opinions of Dr Slesenger and Dr Mittal – even if he was to undergo further retraining, such as completing a Certificate IV in Workplace Training and Assessment.  I accept the plaintiff’s evidence as to the consequences of the medication on his cognition and I have already set out his affidavit evidence.  Realistically, I cannot see any way that the plaintiff could reliably or consistently undertake employment in the future, even with further rehabilitation or retraining.[34]

[34]        Richter v Driscoll [2016] VSCA 142; T33-34 and T43-44

37Further, bearing in mind we are dealing with a gateway provision and not an assessment of damages, at best, any residual capacity for employment in my opinion would be for no more than twenty hours per week, consistent with the certificates of Dr Van Rheede and the opinion of Mr Pullen that the plaintiff will never return to full hours and consistent with the restrictions that all doctors place on his residual capacity and taking into account the variable nature of his condition, with flare ups and need for medication to manage breakthrough pain.

38Of course, if the plaintiff has no capacity for suitable employment, then he satisfies the statutory formula.  Equally, on the facts of this application, if his residual capacity is for no more than twenty hours per week, then none of the jobs identified by the defendant would, at twenty hours per week, produce sufficient earnings for the plaintiff to fail to demonstrate a loss of 40 per cent or more.

39Accordingly, I conclude that the plaintiff has demonstrated the requisite loss and has demonstrated that he has suffered a “serious injury” in respect to loss of earnings.

40I shall grant leave for the plaintiff to commence a common law proceeding for both pain and suffering and loss of earnings damages.

41I shall hear from the parties as to the question of costs.

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