Jovanovski v Atlas Speciality Meats Pty Ltd and VWA
[2011] VCC 81
•18 February 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-01834
| VLADO JOVANOVSKI | Plaintiff |
| v | |
| ATLAS SPECIALITY MEATS PTY LTD | Defendants |
| and VICTORIAN WORKCOVER AUTHORITY |
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| JUDGE: | HER HONOUR JUDGE HOGAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 and 16 February 2011 |
| DATE OF JUDGMENT: | 18 February 2011 |
| CASE MAY BE CITED AS: | Jovanovski v Atlas Speciality Meats Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 81 |
REASONS FOR JUDGMENT
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Catchwords: Application pursuant to s.134AB of the Accident Compensation Act 1985 relating to left shoulder injury over course of employment from approximately early 2002 to December 2005 – Permanent impairment leading to consequences which are serious with respect to pain and suffering conceded by the defendant – Issue of whether consequences are also serious with respect to loss of earning capacity pursuant to paragraph (a) of the definition of “serious injury”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Rattray QC | John Dellios & Associates |
| with Mr R. Forsyth | ||
| For the Defendants | Mr S. Jurica | Minter Ellison |
| HER HONOUR: |
1 The plaintiff, Mr Vlado Jovanovski, applies pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 for leave to bring proceedings for the recovery of damages for loss of earning capacity.
2 It has been conceded by the defendants that by reason of his employment as a machine operator with the first defendant leading up to February 2003 and thereafter to December 2005, the plaintiff suffered a permanent impairment of or loss of function to his left shoulder which has serious pain and suffering consequences. However, the defendants dispute that the consequences of such impairment are serious with respect to loss of earning capacity.
BACKGROUND
3 The plaintiff is presently aged 62 years having been born in Macedonia on 9 December 1948. He attended school in Macedonia for six years. He migrated to Australia in 1971 and can speak basic English but needs an interpreter to ensure full and effective communication. He is virtually illiterate in English.
4 After arriving in Australia, the plaintiff was employed in a variety of labouring jobs and also employed by the first defendant for two years as a cleaner between 1985 and 1987. On 23 January 1993, the plaintiff was employed by the first defendant as a cleaner. This job endured for seven years and then he changed to a position of machine operator. He worked on a metal processing machine which converted coils of wire into wire of a thinner diameter for use as spring wire. The job involved a lot of pulling and pushing as the wire was very springy and difficult to handle, and the plaintiff had to strain to keep it under control to feed it into the machine. When the wire emerged from the machine, a great deal of force was required to tie ends of the wire together as it was very hard to bend. The job placed strain on his shoulders and arms.
5 In early 2003 while pushing and pulling wire into the machine, he wrenched his left shoulder and suffered severe shoulder and arm pain. He attended Dr Oppenheimer at Blackshaws Road Medical Centre, which centre apparently attended to medical treatment of workers of the first defendant. This was on 26 February 2003, at which time Dr Oppenheimer recorded that he complained of a painful left upper arm for one year, which prevented him from sleeping and which he attributed to his heavy work with wire coils. He was prescribed anti-inflammatories and massage for the painful area. An x-ray and ultrasound showed no abnormality. He attended that same clinic and saw Dr Oppenheimer or alternatively Dr Korman on four other occasions relating to pain in his left upper arm and continued to be treated conservatively with anti-inflammatory medication.
6 On 6 April 2005, the plaintiff saw Dr Korman, complaining of pain in the biceps muscles of the left upper arm over the last two days. He was prescribed Mobic. On 15 May, he re-attended and Dr Korman diagnosed a muscular strain and prescribed Brufen and Digesic. Dr Korman also apparently requested an ultrasound of the left shoulder and biceps muscle and an x-ray of the left shoulder.
7 The plaintiff was dissatisfied with the treatment given to him at Blackshaws Medical Centre so sought treatment from Dr Ansari at a medical centre in Main Road West, St Albans. He first saw Dr Ansari on 23 May 2005 and has continued under his care since then. An ultrasound of the plaintiff’s left shoulder performed on 6 June 2005 demonstrated a left supraspinatus full thickness tear, left longhead of biceps tendonitis, left subdeltoid subacromial bursitis and left supraspinatus tendon impingement on abduction.
8 The plaintiff was referred for physiotherapy and certified as unfit for work. After two weeks he returned to work on modified duties, initially on three hours per day two days per week but gradually increased those hours to five hours per day five days per week. Meanwhile, Dr Ansari referred the plaintiff to Mr Pianta, orthopaedic surgeon, who first saw him on 15 August 2005. Mr Pianta diagnosed a left rotator cuff tear and injected the subacromial space with Celestone to try to give him some pain relief.
9 The plaintiff continued to perform modified duties with his left arm in a sling. He was using his right arm to do light cleaning work and some painting. The pain in his left shoulder continued. Accordingly, Mr Pianta performed surgery on 13 December 2005, at which time he explored the left shoulder and repaired a four centimetre tear in the rotator cuff. The plaintiff was off work recovering from the surgery when, on 25 January 2006, he received a letter from the first defendant that he was to be made redundant from 31 January 2006. The plaintiff has not worked since this date.
10 At all relevant times, liability for the plaintiff’s left shoulder injury has been accepted by the defendants who have paid for all relevant medical and surgical treatment. On 5 December 2006, the defendants engaged vocational counsellors, Worklife Donnelly Ayres, to assist the plaintiff to find suitable employment. A report dated 26 October 2007 identified as “suitable employment option goals” the jobs of machine operator, product assembler, process worker, hand packer and packager and container filler. It was noted that the plaintiff was motivated to pursue these goals and that he continued to be pro-active by networking and “cold calling” on nearby industrial factories without success. He followed up two leads with employers without success. Mr Pidoto, vocational consultant with Worklife Donnelly Ayres, stated that the plaintiff had been provided with every assistance possible to find him suitable employment. His report stated:
“The major barriers that Mr Jovanovski faces in seeking new
employment include:
• Lack of transferable skills •
Restrictions with regards to undertaking physical employment
• Limited education and work skills • Mr Jovanovski is almost 59 years of age •
Mr Jovanovski (sic) poor presentation and his ability to ‘sell’ himself to potential employers
• Mr Jovanovski’s limited English skills.”
Worklife Donnelly Ayres closed the plaintiff’s file and no further vocational rehabilitation or assistance to provide the plaintiff with suitable employment has been given by either of the defendants.
THE PLAINTIFF’S CURRENT POSITION
11 The plaintiff’s evidence is that the operation performed by Mr Pianta was only partially successful. He said that before the operation he had a lot of severe pain but since the operation he still has restrictions with his left upper limb and still has a lot of pain. In his affidavit sworn on 26 November 2009 he stated that he suffers pain on the top of his left shoulder going into his neck and also below the shoulder in the muscle. He said he is able to move his arm fairly well but gets a catching or grabbing feeling in the shoulder and the pain increases on lifting his arm and worsens with activity. The pain is worse in cold weather and he has difficulty lifting anything above waist height without increasing pain. If he moves his arm too fast or reaches out it aches and his arm generally feels heavy.
12 In his affidavit sworn on 15 February 2011 the plaintiff stated that he has now developed symptoms of pain in his right shoulder because he uses his right upper limb rather than his injured left one. In his oral evidence he said that he essentially uses his injured left arm to support his right arm. He uses a TENS machine and continues to see Dr Ansari, who prescribes Panadol Forte. His evidence is that when the weather is cold and he has worse symptoms he takes six to eight Panadol Forte per day, but he tries to avoid taking too many, as this medication makes him constipated. He says there might be up to two days where he can manage without Panadeine Forte but it is difficult.
13 The plaintiff’s evidence is that he desperately wanted to keep working because he needed the money. He said that, over the years, Dr Ansari had continued to certify him as fit for modified duties of 20 hours per week and Dr Ansari had said to go out and see if he could find a job and try it and if he could not do it to come back and see him. He said he has not been able to find a job. He went to the job centre in St Albans, Centrelink and also Worklife. He called in to industrial factories where he filled in application forms and returned the forms to job centres. He went to Smorgon’s Steelworks and two other factories but nobody wanted to accept the forms because questions 7 and 8 asked whether he had been on WorkCover or Workers Compensation. He said that, if there was a job that he could do, he would try it. He said he did whatever WorkCover instructed him to do. The jobs for which he was looking had to be reduced hours.
14 He had found a job at Laverton which he thought might be a light job that he could do and he got in touch with Worklife. He was advised that WorkCover had looked to see if he could do the job. He had been led to understand that because he was on WorkCover the employer was not prepared to give him the opportunity.
15 He said that neither Donnelly Ayres or Healthework had actually assisted him in obtaining any job.
16 He was cross-examined about whether he could perform the three jobs suggested as suitable work in the report of Healthework authored by Rob Greenfield, vocational consultant, dated 18 June 2008. The first job was that of production machine operator. He stated that if all he had to do was press a stop/start button he could do it, but he had worked with having to adjust dies or moulds in the past and this could involve heavy work which would be beyond him because he cannot fully use both hands. As far as the requirement that he maintain machine and production records is concerned, he said that he does not read or write English and, even when he worked for the defendant, he had trouble understanding some of the instructions that were given to him orally.
17 He was asked whether he could perform the suggested job of product examiner, for example, checking to see if products had defects. He said he thought it would be a problem because he could not use both hands. He said he could use his left hand at waist level but not for a long period. He would have to use his right hand to check products. He said that if there were about 10 products that came along the line per minute, he might be able to manage that, but if they come in rapid succession he could not keep up with them. As far as the requirements of studying product specifications, taking measurements to determine conformity with specifications and complying quality assurance reports, maintaining documentation and report findings are concerned, the plaintiff said that he would not be able to read specifications or to take or record relevant measurements. He confirmed that the information in his affidavit sworn on 26 November 2009 is correct, namely, that he attended school in Macedonia for six years prior to coming to Australia in 1971 and still needs an interpreter to make himself clear and to fully understand things and he is unable to read or write any but the most elementary English.
18 The plaintiff was cross-examined about his ability to perform the third suggested employment of packager and container filler. He said that he would not be able to do this work with one hand and repeated that he was only able to use his left hand at waist level but not for long. Maybe if the weight was about one kilogram and of small size he could use one hand but otherwise he did not think he could stack or fill containers and if any stack got above waist height he would not be able to do it.
THE EXPERT EVIDENCE AS TO THE PLAINTIFF’S WORK CAPACITY
Dr Ansari, the plaintiff’s general practitioner
19 Dr Ansari had written six reports dated 13 February, 6 July 2007, 2 June 2008, 30 June 2008, 12 January 2009 and 29 October 2010. He also gave oral evidence before me. In his reports from 6 July 2007, Dr Ansari indicated that the plaintiff was incapacitated for his pre-accident duties but was fit for alternative or modified duties. He noted that the plaintiff was desperate to work and wanted to do any work, but had been advised not to attempt any heavy work because this would cause injury to his left shoulder. He thought that his age, the stigma of workers compensation and the disability in his left shoulder were current barriers for his return to work. However, he nevertheless provided certificates of capacity which stated that the plaintiff could work four hours a day five days a week as per job offer/or any suitable work.
20 In his report dated 30 June 2008 Dr Ansari was asked to comment on the three jobs which had been suggested by Healthework and he reported as follows:
“1. Machine operator – the patient can manage the duties of a
machine operator and possibly be productive as well.2. Product examiner – this could certainly be an option for the patient and I think he will be able to fulfill (sic) the inherent requirements of this job. 3. Packager and container filler – after discussion with the patient, this job can be trialled and I feel that he will be able to fulfill (sic) the requirements of all these jobs.”
21 In his report dated 12 January 2009, Dr Ansari noted that the plaintiff had had another ultrasound on 27 October 2008 which concluded as follows:
“1. Left biceps tendinosis. 2.
A small full thickness tear of the left anterior supraspinatus tendon is demonstrated.
3.
Left subacromial bursitis is noted associated with bursal impingement.”
22 He noted that Mr Pianta said that he could not help the patient further. He stated that the plaintiff does have the capacity for some alternative duties as a machine operator, product examiner and packaging or container filler. None of these jobs require heavy lifting, pulling or pushing. He said the plaintiff was highly motivated to work and had made many attempts to get back to work, but had failed totally. He noted that the stigma of WorkCover was a problem, as was his persistent pain in the shoulder. He thought that considering his disability and his level of education the plaintiff was unemployable.
23 In his final report dated 29 October 2010, Dr Ansari noted that the injury to the plaintiff’s left shoulder had caused him to overuse the right shoulder which had now become extremely painful. He stated that the plaintiff can do very limited work. He could not work full-time and could only work for very restricted hours. He would need to take time off work for long periods as the pain sometimes becomes intractable. He would require rest breaks every half hour if he attempts any job. He could not be expected to be reliable and punctual at work as his pain becomes too severe and he is unable to get out of bed sometimes. He considered that he would not be able to undertake the vocational options previously referred to. He stated that, realistically, the plaintiff was not employable in the labour market as he could not perform his work consistently and is hampered by his injuries, skills and language problems. He noted that he had been granted a disability pension and thought that no prospective employer in the open labour market would provide him with suitable employment. Moreover, he was not fit for retraining. He said that the plaintiff’s prognosis is poor and his condition is unlikely to improve.
24 In his oral evidence Dr Ansari said that in realistic terms the plaintiff cannot work, he could not find a job suited to his level of education and disability. He had given certificates for part-time work in the forlorn hope that the insurer might find some job adapted to his disability. He issued certificates in the form that he did in order to leave open the prospect of rehabilitation so that the insurer might accommodate him in a job which would allow him to work within the confines of his injury. In cross-examination he responded to the suggestion that there were jobs available that the plaintiff could do by referring to them as “phantom jobs”. He said that wherever the plaintiff had gone to look for work they showed him the door. He said, at best, the surgery which the plaintiff had undergone was a partial success because the most recent ultrasound still showed the patient had a full thickness tear.
Mr Pianta, operating orthopaedic surgeon
25 In his first report dated 30 August 2005, Mr Pianta noted his diagnosis of rotator cuff pathology in the left shoulder and that he had injected the subacromial space with Celestone to try and give the plaintiff pain relief. He noted that the plaintiff seemed well motivated but rest from work would do nothing to alter the outcome of his shoulder injury and predicted that he may well require surgery. His report dated 10 January 2006 noted that he had surgically explored the left shoulder and repaired a four centimetre tear of the rotator cuff but, unfortunately, the plaintiff had not left his arm in a sling for a period of six weeks post operatively. He thought he required physiotherapy and planned to review him in two months time in the belief that he might be able to return to work then in some restricted way. His final report dated 27 November 2008 stated that he did not believe that the plaintiff’s symptoms in the left shoulder were “all that incapacitating”. He discharged the plaintiff from his further management.
Mr Brearley, specialist surgeon
26 A medico-legal opinion was obtained from Mr Brearley by the plaintiff’s solicitors. He saw the plaintiff on 23 September 2010. He noted that all left shoulder movements were markedly limited by pain and thought that the left shoulder injury gave him no current work capacity which would continue indefinitely. He said that the injury meant that he was no longer capable of carrying out suitable employment in the open labour market that he could perform consistently, taking into account his age, his great language difficulties, his employment history solely as a labourer and his ongoing physical disability. He stated if, per chance, he were considered capable of suitable employment, he could work part-time only for three hours per day on four days per week. However, he would require days off without notice due to exacerbation of pain, rest breaks of ten minutes every hour and would not be reliable or punctual in his attendance. He thought there was no likelihood that an employer would engage him in employment. Nor did he think that he was fit for the vocational options referred to in the report of Healthework as he could not use his left arm fully or perform repetitive work. Given his injury, age, employment history and language difficulties, he considered that there was no realistic probability that any prospective employer would provide him with any employment at all and he is not suitable for retraining.
Mr King, orthopaedic surgeon
27 Mr King was asked by the plaintiff’s solicitors to provide a medico-legal opinion after seeing the plaintiff on 1 October 2010. He stated that the plaintiff was a genuine man who was chronically disabled by a moderately severe rotator cuff injury which was equivalent on clinical grounds to a 30 per cent loss of function of the left upper limb. He considered that the plaintiff was permanently incapacitated and that suitable employment was not likely to be available to him at any time in the future, particularly given his age, lack of special skills and virtually no English.
Dr Castle, occupational health, rehabilitation and counselling specialist
28 Dr Castle provided a medico-legal assessment to the plaintiff’s solicitors following examination on 26 October 2010. In his report dated 1 November 2010, he noted marked suprascapular and deltoid wasting and limitation of movement of the shoulder. He noted the findings on the most recent ultrasound dated 27 October 2008 which demonstrated that the plaintiff had had an inadequate response to surgery. He said he is left with a painful left shoulder with restricted movement and there are some signs of adhesive capsulitis. He considered that the plaintiff had no current work capacity because of the severity of his injury and restricted use of his arm. He also noted that he was 62, his command of English was low and he had only ever worked as a manual labourer. These factors, together with his painful left shoulder with restricted movement, meant that he did not have any capacity for suitable employment and, even if he were to find employment, he would be unlikely to be able to work consistently for any number of hours on a regular basis. He did not consider that there was any capacity for the plaintiff to undertake re-training.
Mr Radley, psychologist and vocational assessment specialist
29 Mr Radley was asked by the plaintiff’s solicitors to undertake an assessment of the plaintiff’s work capacity. He provided two reports dated 27 and 29 November 2010 respectively. He stated that he was not able to provide results of psychological testing as the plaintiff did not complete the questionnaires. He said the plaintiff has a level of general intelligence in the low to below average range which, together with his low level of education (Grade 6 in Macedonia), inability to read or write in English and his age, suggests that he does not have the academic ability to undertake any type of occupational re-training. Mr Radley undertook a very detailed analysis of various suggested alternative duties for the plaintiff and concluded that he did not have the skills, qualifications or experience for any alternative full-time or part-time employment.
30 In his second report, Mr Radley specifically addressed the three occupations which Healthework had suggested would be suitable employment for the plaintiff. Mr Radley carefully analysed the generic work duties for a production machine operator and noted that, amongst other things, it involved moderate to heavy lifting, pulling or pushing of weights up to 22.7 kilograms which were beyond the plaintiff’s current level of physical fitness. In addition, his low level of education and inability to read or write English would preclude him from being able to undertake the level of training needed to obtain the necessary qualifications for the job. Hence, he concluded that it was not reasonable to suggest that he had a current work capacity for a production machine operator or any similar occupation.
31 Mr Radley assessed the generic work duties involved in the job of product examiner/quality assurance officer. He stated that the plaintiff did not have the minimum educational entry requirements for this job, nor did he have any relevant experience for it. Amongst other things, he noted that work duties would require an ability to be able to work in a stooped posture with unrestricted use of the back, shoulders and neck and unrestricted use of both arms and both hands, as well as an ability to maintain a very high level of concentration and attention to detail for long periods of time. As the medical reports indicate that the plaintiff would not be able to engage in physical work duties which require any significant activities with his left arm, he concluded the plaintiff did not have the physical capacity for this job. He also indicated that the plaintiff’s limited skills in spoken English and inability to read or write in English would mean that he would be unable to read product specifications, write reports or communicate with production staff or management. Hence, he concluded that it was quite unreasonable to suggest that the plaintiff had a current work capacity for this job.
32 Mr Radley considered the suggested suitable employment of a packager and container filler. He noted the generic work duties for this occupation and stated that they are physically strenuous and require at least a moderate level of physical fitness. It would require an ability to work in a fixed posture, a stooped posture, to work at a quick and even pace to the pace of a machine outputter assembly line, to lift, carry and work with items which can be awkwardly shaped, to work repetitively with both shoulders, arms and hands and have a high level of manual dexterity and flexibility, to lift and handle items and fill containers which are usually heavy (rarely less than five kilograms) and to maintain a moderately high level of concentration. He stated that all medical reports were in agreement that the plaintiff is not able to form such physically demanding and repetitive manual labour, any significant activities with his left arm (including that he is not able to reach over shoulder height), engage in any strenuous work or in any work reaching away from his body or any significant lifting and that he is not able to lift more than light weights. Accordingly, he concluded that it was not reasonable to suggest that the plaintiff had a current work capacity for this type of work.
33 Mr Radley’s overall conclusion is that the plaintiff has only physical work skills. He has not marketable skills of an intellectual or interpersonal nature and, thus, has marketable work skills for employment in occupations only of a sedentary or light work nature. As a result of the physical impairment arising from his left shoulder injury alone, he did not believe that the plaintiff would be able to obtain or perform any full-time or paid part-time employment in the future. He stated that the plaintiff is effectively unemployable.
Dr Elder, consultant in occupational and environmental medicine
34 Dr Elder assessed the plaintiff at the request of the defendants on 1 April 2009. He noted a history from the plaintiff that the operation helped but he still has ongoing pain and a decreased range of movement. Dr Elder measured the range of movement by goniometer and found restrictions, inflexion, extension, adduction, abduction, internal rotation and external rotation leading to an 11 per cent impairment of the shoulder. He noted there was wasting of the supraspinatus muscle in the supraspinatus fossa. He did not have access to any investigations. He concluded that the plaintiff had ongoing left shoulder dysfunction relevant to the accepted left shoulder and arm injury, that he had a permanent impairment and a combined whole person impairment of ten per cent.
Mr Clive Jones, orthopaedic surgeon
35 Mr Jones assessed the plaintiff at the request of the defendants on 12 June 2008 and provided a report dated 23 June 2008. He stated that on examination the plaintiff had virtually a full range of movement in the left shoulder and he noted the findings in the first ultrasound conducted on 6 June 2005. He concluded that repeated use of the left arm at or above shoulder level or handling heavy weights consistently is likely to make the left shoulder tire, but from a clinical point of view he is certainly capable of alternative and lighter employment. He thought the plaintiff could work in tasks such as light process work, container filling, supervision of a school crossing or something of the sort.
36 Mr Jones provided a very brief supplementary report dated 26 June 2008 without further consultation with the plaintiff. He had been provided with the vocational assessment report from Healthework. He stated that the jobs of machine operator, product examiner and packaging and container filler are light tasks and in physical terms the plaintiff was perfectly capable of undertaking work of this nature.
Dr Yong, specialist occupational physician
37 Dr Yong provided a report dated 23 June 2008 based upon an examination which would appear to have taken place some time in the previous month, however, the date is not specified. He noted that the plaintiff was a pleasant man who showed no signs of pain behaviour and there were no inconsistencies in his history. He was aware of the ultrasound conducted in 2005 and noted that he had had left shoulder surgery for a rotator cuff tear and subacromial bursitis. He thought that the plaintiff had a current work capacity provided that he avoided repeated above-shoulder height tasks with his left arm and also avoided repeated reaching tasks with his left arm.
38 In a subsequent report, dated 24 June 2008, without any further consultation with the plaintiff, Dr Yong stated that the duties suggested by Healthework as a production machine operator, product examiner and packager and container filler would comply with his suggested medical restrictions and they are therefore suitable for the plaintiff.
Mr Pidoto, vocational consultant with Worklife Donnelly Ayres
39 Mr Pidoto provided a report to the defendants dated 26 October 2007. I have already referred to the substance of this report in paragraph 10 of this judgment. An earlier letter from Mr Pidoto to the insurer, dated 11 October 2007, suggested that Worklife Donnelly Ayres suspend any further vocational counselling to the plaintiff until mid January 2008 in the hope of finding suitable employment for him. However, it appears that no further assistance was given to the plaintiff in this regard.
40 An earlier report from Mr Pidoto, dated 28 June 2007, had noted that the plaintiff had fully cooperated with job seeking plans but had been unsuccessful in obtaining employment. In particular, several applications had been submitted on his behalf for the positions of packer, assembler, cleaner, process worker and general hand. It was noted that these positions were handled by other agencies and it was difficult to obtain information from them as to why the plaintiff had been unsuccessful. It was noted that the plaintiff has very few transferrable skills and by that stage had been out of the workforce for 18 months and was struggling financially.
Mr Greenfield, vocational consultant with Healthework
41 Mr Greenfield provided a report to the defendants dated 18 June 2009 assessing the plaintiff’s work capacity. The report noted that the plaintiff had only six years of formal schooling in Macedonia and 35 years work experience as a machine operator/labourer. The report stated that the plaintiff demonstrated good communication skills at interview but was unable to read and write English. It was noted that he had restricted lifting capacity in that he was unable to lift above shoulder height with his left arm and reaching was limited for outstretched and overhead movements with the left arm. In addition, he had difficulty driving due to left shoulder and arm pain. His transferrable skills were said to include machine operation experience, basic machine maintenance experience, knowledge of manufacturing processes and knowledge of workplace occupational health and safety. The report concluded that the plaintiff would demonstrate the necessary work capacity for the job of production machine operator earning an average gross weekly full- time income of $624; product examiner, earning an average gross weekly full- time income of $880; and packager and container filler earning an average gross weekly full-time income of $627. A breakdown of the duties, qualifications, physical demands and English competency required for each of these jobs is detailed in the report.
SUBMISSIONS OF THE PARTIES
42 It is agreed between the parties that the figure which most fairly represents the plaintiff’s pre-injury earning capacity is $43,117 per annum.
43 It is not in dispute that if the plaintiff were fit for full-time suitable employment as a production machine operator he would earn $624 gross per week or $32,448 gross per annum. If he were fit for full-time employment as a product examiner he would earn $880 per week or $45,760 gross per annum. If he were fit for full-time work as a packager and container filler he would earn $627 gross per week or $32,604 gross per annum.
44 Mr Rattray of senior counsel on behalf of the plaintiff submits that the evidence should satisfy the Court on the balance of probabilities that he has no capacity for suitable work now. Nor has he any capacity for further rehabilitation or retraining. Accordingly, he submits that, in addition to having established a compensable injury to his left shoulder which has resulted in a permanent impairment or loss of function of the shoulder with consequences that are serious in relation to pain and suffering (all of which is admitted by the defendants), the plaintiff has established that he has a loss of earning capacity of 40 per cent or more after comparing his “after injury” earnings (effectively nil) to his “without injury” earnings. He further submits that, in addition, the Court should be satisfied, pursuant to s.134AB(g) of the Act, that there is no further rehabilitation or retraining which would result in the plaintiff earning more than 60 per cent of his “without injury” earnings.
45 Mr Jurica on behalf of the defendants submits that, although the plaintiff has some restriction on his work capacity, his own general practitioner, Dr Ansari, up until relatively recently, certified him as fit for modified duties and specifically stated in his report dated 30 June 2008 that the jobs of machine operator, product examiner and packager and container filler were ones in which the plaintiff could be employed. Mr Jurica submits that, notwithstanding that Dr Ansari’s clinical notes repeatedly state that there has been no change in his condition, he has done a “back flip” in his more recent reports and oral evidence by stating that the plaintiff is unemployable. Moreover, the plaintiff’s treating surgeon, Mr Pianta, in his most recent report back to Mr Ansari on 27 November 2008 stated that he did not believe the plaintiff’s left shoulder symptoms “are all that incapacitating”. In addition, Mr Jones and Dr Yong each state that the plaintiff would be capable of working in the three roles identified in Healthework’s report.
46 Mr Jurica submits that the job options suggested in the Healthework’s report referred to real jobs which were available as indicated by the evidence that at the date of the report there were some 17 such jobs available in the north- west region. He submits that such jobs were available and the plaintiff was able to go out and get them. Accordingly, he submits that the plaintiff has not satisfied the Court that the permanent impairment to his left shoulder has consequences in relation to loss of earning capacity which are serious.
ANALYSIS
47 It is true, as Mr Jurica submits, that Dr Ansari in his report dated 30 June 2008 appears to look favourably upon the three jobs mentioned in Healthework’s report as ones which might be suitable for the plaintiff. The manner in which Dr Ansari has expressed himself is not crystal clear. As to the job of machine operator he states, “The patient can manager (sic) the duties of a machine operator and possibly (my emphasis) be productive as well”. As to the job of product examiner he states, “This could (my emphasis) certainly be an option
for the patient and I think he will be able to fulfil the inherent requirements of
this job”. In relation to the packager and container filler job he states, “After
discussion with the patient, this job can be trialled (my emphasis) and I feel
that he will be able to fulfil the requirements of all these jobs”.48 In his later report dated 12 January 2009 Dr Ansari states that the plaintiff does have the capacity for some (my emphasis) alternative duties as a machine operator, product examiner and packaging or container filler. However, he seems to assume that these jobs do not require heavy lifting, pulling or pushing. It seems to me that there is not an adequate basis in the job descriptions for making such an assumption.
49 In oral evidence, Dr Ansara explained that, as mentioned in his reports, the plaintiff was highly motivated and wanted to return to work. He stated that he was trying to keep the plaintiff’s rehabilitation prospects open by giving him certificates for part-time modified work. He impressed me as a caring general practitioner who was genuinely trying to help his patient get back to work. However, nowhere in his report dated 30 June 2008 did he say that the plaintiff could do such work full-time. Indeed, the certificates which he continued to write on the plaintiff’s behalf were for part-time duties only, namely, four hours a day on five days per week. More importantly, subsequent to that report of 30 June 2008, the plaintiff underwent a further ultrasound on 27 October 2008. This showed that, although Mr Pianta had repaired a tear in the rotator cuff on 13 December 2005, by 27 October 2008 there was again a small full thickness tear of the anterior supraspinatus tendon measuring 10 millimetres x 6 millimetres x 5 millimetres, as well as subacromial bursa thickening and fluid with associated bursal impingement. In addition Dr Ansari gave evidence that the plaintiff had developed increasing symptoms in his right shoulder because he was protecting his injured left shoulder and overusing the right. Thus, it is not true, as Mr Jurica submits, that nothing has changed over the years.
50 As far as Mr Pianta is concerned, there is no explanation for what he means by the expression in his letter to Dr Ansari that the left shoulder symptoms are “not all that incapacitating”. Mr Pianta has never seen the descriptions of the jobs which the defendants suggest are suitable employment and, indeed, has not seen the plaintiff since 26 November 2008. He seems in his earlier letter of 10 January 2006 to be somewhat annoyed with the plaintiff who seems to have not kept his arm in a sling for a period of six weeks after the operation. There was also some mix up about a review appointment. One wonders whether the plaintiff’s poor understanding of English has put him at a disadvantage in this regard, although there is no evidence to enable me to conclude that this is definitely so. In any event, Mr Pianta was clearly of the view that there was nothing more he could offer the plaintiff and discharged him from further management. The defendant could easily have asked for Mr Pianta to be made available for cross-examination but did not do so. In the circumstances, I do not consider that I could rely on his opinion expressed over two years ago as somehow being an indication that the plaintiff could perform the three jobs put forward by Healtheworks.
51 It is true that both Mr Clive Jones and Dr Domenic Yong in June 2008 stated that the plaintiff would be capable of undertaking work as a machine operator, product examiner or packager and container filler. Neither Mr Jones nor Dr Yong state whether the plaintiff would be capable of undertaking such work full-time or part-time. More importantly, their opinions are expressed prior in time to the ultrasound performed on 27 October 2008 which reveals that the plaintiff has another full thickness tear of his left rotator cuff. Nor are they aware of the symptoms which have developed in his right shoulder through overuse.
52 Neither of these doctors seem to have carefully considered precisely what might be involved in the jobs in question. For example, the nature of the production machine is not identified so it is unclear whether the plaintiff would need to perform any movements with his left arm above waist level. The nature of the adjustments to die or mould settings are not identified. One does not know how large such settings are or how big a spanner would be needed to be used in order to make the adjustments. There is reference to trimming, cutting, stacking and collating the finished product but, again, it is unclear whether this would require the use of both arms and, if so, to what height stacks might be. In addition, there is a requirement that the plaintiff would have to maintain machine and production records. The evidence before me is that the plaintiff has only had six years of schooling in Macedonia and is virtually illiterate in English. Further, there is evidence in both of Mr Radley’s reports that the plaintiff’s level of general intelligence is assessed to be in the low to below average range.
53 The description of the occupation of product examiner in Healthework’s report is also very general. It was asked of the plaintiff in cross-examination whether he could cope with a quality control job where say ten muesli bars came along every minute and he had to examine them for defects. There is simply no evidence that that scenario is what would be involved in the job of product examiner. The whole concept of a production line requires things to keep moving at a relatively fast speed so that levels of production can be maintained. There is no evidence as to whether product examination would require the use of both hands. More importantly, the job requires that the employee study product specifications, take measurements to determine conformity to specifications and then compile quality assurance reports maintaining documentation and report findings. Leaving aside any physical restrictions of the plaintiff, neither Mr Jones or Dr Yong seemed to have taken these factors into account in the light of the plaintiff’s limited education and illiteracy.
54 As far as the job of packager and container filler is concerned, save that it is described as sedentary or light, according to some US dictionary definition, there is no indication of what particular items would be stacked into what particular containers. The job description does not make it clear whether the job would be capable of being performed with one hand or whether two hands would be required. It sounds by its nature to be a repetitive type of job and neither Mr Jones nor Dr Yong appear to have turned their minds to whether the plaintiff would be capable of the sustained effort required for such a job.
55 In contrast to the scant analysis by Mr Jones and Dr Yong, of what would be required to perform the three suggested suitable employment options, is the very detailed analysis by Mr Radley in his reports, dated 1 November 2010 and 29 November 2010 respectively. Occupational health and rehabilitation is Mr Radley’s speciality. In a very careful way he analysed the plaintiff’s particular circumstances and his limitations and he is quite clear in his conclusion that the occupations suggested for him are not realistic, given the physical limitations of his injury and his assessment that the plaintiff does not have the academic ability to undertake any type of occupational retraining. I have already referred earlier in this judgment to the specific matters which Mr Radley highlights as being problematic for the plaintiff.
56 Mr Brearley, in his report dated 23 September 2010, gives more careful attention to what is required in each of the three jobs suggested by Healtheworks than either Mr Jones or Dr Yong. His view is that the plaintiff could not do work as a machine operator because he could not use his left arm fully, nor could he be a product examiner because of ongoing chronic pain and his intake of analgesics would make it difficult for him. He said that the same applies to the job of a container filler, as this would require repetitive use of the left arm which is not possible for him. He, like Mr Radley and Dr Ansari, opines that the plaintiff has no current work capacity. He stated that, on the off chance that he were to obtain work, he could not do more than three hours per day on four days per week and would be unreliable in attendance because of unpredictable exacerbations and require rest breaks of ten minutes every hour.
57 Dr Castle, in his report dated 1 November 2010, and Mr King, in his report dated 5 October 2010, do not specifically refer to the three jobs mentioned in Healtheworks report, but both have the details of the most recent ultrasound and have examined the plaintiff recently. Both are firmly of the view that the plaintiff has no capacity for suitable employment, either now on in the future, and that retraining is not a practical proposition.
58 Dr Castle found marked suprascapular and deltoid wasting and signs of adhesive capsulitis. I here note that Dr Elder had also noted wasting of the supraspinatus muscle in 2009. This is consistent with diminished usage of the left arm as the plaintiff described. Indeed, there was no inroad made into the plaintiff’s credit at all. There is no material before the Court to show that his incapacity is other than what he claims. The defendants admitted having undertaken surveillance of the plaintiff for almost 35 hours in May 2008 and July 2010. In the index of the defendants’ court book the existence of surveillance film was listed. No such film was shown to the Court or tendered. No explanation for such failure was provided by the defendants. In the circumstances, I infer that the surveillance film would not have assisted the defendants’ case.
CONCLUSIONS
59 The defendants have conceded that the plaintiff has a permanent impairment to his left upper limb with consequences which are serious in relation to pain and suffering. For many years now the plaintiff has suffered severe pain in his left shoulder with restrictions on his ability to lift and reach with that arm because it causes pain. The surgery undertaken by Mr Pianta on 13 December 2005 seemed to improve things a little for a time, but the plaintiff’s pain has continued and it is now apparent that he has another full fitness tear in the rotator cuff as demonstrated on the ultrasound of 27 October 2008. This is in addition to subacromial bursitis with bursal impingement and recent medical evidence suggests that he also has signs of adhesive capsulitis. Consistent with the ultrasound findings the plaintiff’s evidence is that he cannot use his left arm above waist height and suffers pain if he tries to lift anything or to do anything exertive with that injured arm. It is common ground amongst all doctors, even Dr Jones and Dr Yong, whose opinions predate the October 2008 ultrasound, that he cannot do repetitive lifting or reaching tasks with the left arm or handle heavy weights consistently.
60 The first consideration in determining whether the plaintiff has suffered a serious loss of earning capacity in accordance with the Act, is to determine whether the plaintiff has undertaken all reasonable attempts in relation to rehabilitation or retraining.
61 The material before me indicates that the plaintiff was highly motivated to return to work and cooperated with anything that WorkCover suggested. The only rehabilitative steps taken by the defendants to assist him were those provided by Worklife Donnelly Ayres, who, in their report dated 27 October 2007, stated that the plaintiff had been provided with every (my emphasis) assistance possible to find him employment. Nevertheless, it was noted that the plaintiff faced major barriers in seeking new employment, namely, lack of transferrable skills, restrictions with regards to undertaking physical employment, limited education and work skills, the fact that he was then 59 years of age, the fact he had poor presentation and ability to “sell himself to potential employers” and also the fact that he had limited English skills. Notwithstanding that Worklife Donnelly Ayres had suggested that they re- engage with the plaintiff in mid January 2008, to see if it were possible to locate suitable employment for him, their file was closed and the defendants did not re-engage their services to assist the plaintiff in any way whatsoever. Worklife Donnelly Ayres had noted the plaintiff’s good motivation and the fact that several applications had been submitted on his behalf for positions of packers, assemblers, cleaners, process workers and general hand, but all of these had been unsuccessful. The plaintiff himself gave evidence that he had called in on three factories to enquire about work, as well as seeking work through Centrelink and the job centre at St Albans. He stated that no one seemed to want to accept his resume because he had to reveal on application forms that he had a workers compensation claim.
62 Since Worklife Donnelly Ayres identified the barriers to the plaintiff obtaining suitable employment, things have worsened for the plaintiff in that he again has a full thickness tear in his left rotator cuff, together with the other findings in relation to his left shoulder which I have mentioned. The pain which had improved a bit after the surgery in 2005 is now so bad that, with some regularity, he needs to take six to eight Panadeine Forte per day. He now has symptoms of pain in his right shoulder caused by overuse. He lives alone and has trouble carrying out basic household tasks which need two hands. The medical evidence is that there is no further surgical treatment that can assist him. All of the most recent medical reports and vocational assessment reports state that he is not capable of any rehabilitation and retraining. I accept that this is so, given that he is now 62 years of age, had only six years of schooling in Macedonia, has been assessed as being of low or below low intelligence, has only a partial capacity to speak and understand spoken English and is illiterate in English. All of these things, on top of an injury which causes pain and restriction of movement in his left upper limb, lead me to the conclusion, which indeed was heavily hinted at by Worklife Donnelly Ayres in October 2007, that no further rehabilitation or training will improve his employability.
63 The material upon which the defendant relies in suggesting that the plaintiff has a capacity for suitable employment is over two years old. Healthework’s report dated 18 June 2008 seems to be based on the premise that the plaintiff can use his left arm to shoulder height, whereas the evidence is that he cannot use it above waist height. Nor does it take into account the impact that taking six to eight Panadeine Forte most days might have upon the plaintiff’s work capacity. The report also states that the plaintiff “demonstrated good communication skills at interview”. I am frankly astonished at this statement. Back in 2004 Worklife’s report had noted the plaintiff’s poor presentation and inability to “sell himself to potential employers”. The plaintiff endeavoured to give his evidence initially without an interpreter and it was clearly very very difficult for him. I have no difficulty in accepting the plaintiff’s evidence that when he was employed with the defendant he had trouble understanding some of the instructions that were given to him in English.
64 In the same report of Healthework, it is noted as one of the plaintiff’s transferrable skills that he holds a full Victorian driver’s licence but this overlooks the fact that the plaintiff reported difficulty driving due to left shoulder and arm pain. It is abundantly clear from all of the medical information that the plaintiff has difficulty holding his left arm above waist height. It is also surprising that that report states that the plaintiff has “knowledge of workplace occupational health and safety”. In his oral evidence the plaintiff said that he did not know the meaning of occupational health and safety, and I believe him.
65 Healthework’s report also notes that the plaintiff has average English skills, is able to communicate effectively in the workplace, but has poor English literacy skills. Notwithstanding this, the author of the report concluded, amongst other things, that he could carry out the job of production machine operator which involved having to maintain machine and production records and that of product examiner which required him to study product specifications, take measurements to determine conformity to specifications and compile quality assurance reports, maintaining documentation and report findings.
66 Although the report noted that the plaintiff could not engage in heavy lifting or twisting with his left shoulder, it no where mentions that he, in fact, is unable to use his left arm above waist height and effectively uses it to support his right arm. Also, the author of this report, like Dr Yong and Mr Jones, was unaware that the plaintiff now has overuse symptoms in his right shoulder. Given the plaintiff’s physical limitations, there is no careful consideration as to what precisely would be involved in adjusting die or mould settings or stacking finished products in the production machine operator job. Nor is there any mention of the extent to which he would need to use both hands and whether he would need to use them repetitively in the product examiner job. Further, the extent to which he would need to use both hands and lift and stack items and the rate at which he would have to perform such work in the packager and container filler’s job is not addressed.
67 In contrast to the outdated material upon which the defendant relies, there is a significant body of up to date material which supports that the plaintiff cannot at the present time do any of the three jobs suggested as suitable employment in the Healthework’s report.
68 In determining whether the plaintiff has a capacity for suitable employment it is necessary to look at the definition in s.5 of the Act which states as follows:
“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 to or 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.”
69 In Smorgon Steel Tubes Pty Ltd v Miliovj Majkic [2008] VSCA 230, Buchannan JA stated, “The definition directs attention to the realities of the labour market”. At the time of Healthework’s report on 18 June 2008, within the western and north-western region there were 17 vacancies for a position of production machine operator, no vacancies for a position of product examiner and four vacancies for a job of packager and container fillers. There is no material before the Court as to what availability, if any, there is in any of those jobs at the present time. However, paragraph (b) of the definition of “suitable employment” indicates that the plaintiff’s capacity must be determined regardless of whether the work is available and regardless of whether the work is available or generally available in the employment market. In other words, the focus of the enquiry must be upon the plaintiff’s capacity.
70 As previously mentioned, the plaintiff is now 62, has very limited education and low intelligence, his capacity to speak and understand English is imperfect, he is illiterate in English and he has only ever worked as a manual labourer. For 13 years he was employed with the first defendant, initially as a cleaner and then as a machine operator. The work that he has undertaken has always been of a relatively arduous manual nature. The nature of the plaintiff’s incapacity is that he cannot use his left arm above waist height without it causing him pain and there are sound organic reasons for this as illustrated on the ultrasound performed in October 2008. Essentially his capacity as I find it to be is that of being confined to doing tasks which he can perform with his right arm only, where he uses his left arm as a support for that arm. An added difficulty is that he has now developed overuse symptoms in his right shoulder. He takes significant amounts of Panadeine Forte on most days. I accept that there might be one day or perhaps two days that he can go without taking the medication, but he finds it difficult.
71 I find the evidence overwhelming that, at the present time and into the foreseeable future, the plaintiff’s capacity for work is negligible. It is possible that he could do some very light work which would essentially require the use of one hand only. However, I do not think that he could sustain it for very long at all. The most recent medical information suggests that he would need to take regular rests and there would be days when, quite unpredictably, he would not be able to work at all because he was experiencing severe pain in his left shoulder. I find that, at best, if the plaintiff could find a very sympathetic employer he might be able to do a few casual hours of light work here and there, but could not commit to any regular hours and could not commit to being able to complete any particular quantity of work within a finite time. I find that in the unlikely event that someone is prepared to give the plaintiff a work opportunity his earnings would be sporadic and minimal. I certainly could not be satisfied that he would ever manage to earn sums in excess of 60 per cent of his “without injury” earnings. The reality is that he might occasionally earn a few hundred dollars per annum in casual light work if he was lucky.
72 Given his pain and restriction associated with his left shoulder and the consequent pain from overusing the right shoulder, I think it is fanciful to suggest that the plaintiff could undertake any of the three occupations suggested as suitable employment by the defendant on either a full-time or part-time basis. All of the occupations are in a commercial setting where an employer has an entitlement to expect that a worker will contribute adequately to maintain the level of production. Even if the weights to be manoeuvred, and the reaching involved were able to be performed with one hand, I simply do not believe that the plaintiff could sustain such work. Moreover, his illiteracy is such that it is unlikely that he would meet the qualifications for either the production manager or the product examiner jobs. Both require basic reading and writing and the plaintiff is illiterate. His literacy skills are so poor that it was not possible for the psychologist, Mr Radley, to conduct the usual psychological and vocational testing because the plaintiff could not complete the questionnaires required of him.
73 The first defendant, in whose employ the plaintiff was injured, terminated his employment whilst the plaintiff was recovering from his shoulder surgery. The plaintiff had worked for that defendant for 13 years and had shown great motivation to rehabilitate himself by working with his arm in a sling for many months whilst waiting for his surgery to be performed. Worklife Donnelly Ayres also found him highly motivated. He did whatever he could to try to get employment. His general practitioner year after year provided certificates for fours per day five days per week light suitable work but no offer has ever been made by the first defendant and no further assistance to find a job has been given to him since Worklife Donnelly Ayres closed their books in October 2007. The plaintiff’s attempts to find work through Worklife Donnelly Ayres or through his own efforts all came to nothing. In my view, it would need an extraordinarily benevolent employer, who was effectively doing a favour rather than employing a commercially productive person, to take on the plaintiff as an employee. Having regard to the most recent medical evidence, particularly that of Dr Ansari, Mr Brearley, Mr King and Dr Castle, together with the Vocational Assessment Report of Mr Radley, I am satisfied on the balance of probabilities that the plaintiff has no current capacity for suitable employment and that will not alter in the future.
74 Thus, I am satisfied, after comparing the plaintiff’s “after injury” earnings with his “without injury” earnings, that the plaintiff has proven a loss of earning capacity of 40 per cent or more, which loss is permanent. If find that there is no further retraining or rehabilitation which would be likely to increase that capacity to result in the plaintiff earning more than 60 per cent of his “without injury” earnings. The plaintiff, a highly motivated worker who had performed hard manual labouring jobs for some 35 years, has been devastated financially by his loss of earning capacity. I find that there is no doubt that when judged by comparison with other cases, as s.134AB(38) requires, the loss of earning capacity consequences can fairly be described as, at least, very considerable.
75 Accordingly, I am satisfied that the plaintiff has proved that he has consequences of the impairment to his left upper limb which are serious in relation to his loss of earning capacity. Thus, in addition to the entitlement to bring proceedings in accordance with s.134AB(16)(b) for the recovery of damages for pain and suffering which has been conceded by the defendants, I grant leave to the plaintiff to also bring proceedings for loss of earning capacity for injury to his left upper limb arising out of or in the course of or due to the nature of his employment with the first defendant.
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