Kalajdziovska v Victorian WorkCover Authority
[2021] VCC 1769
•21 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-02367
| SLOBODANKA KALAJDZIOVSKA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 February 2021 | |
DATE OF JUDGMENT: | 21 December 2021 | |
CASE MAY BE CITED AS: | Kalajdziovska v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1769 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to right shoulder – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Richter v Driscoll [2016] VSCA 142; Cardiff Corporation v Hall [1911] 1 KB 1009; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to issue proceedings at common law for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Ms K Karadimas | Arnold Thomas & Becker |
| For the Defendant | Mr H Donmez | Hall & Wilcox |
HIS HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of her employment with her employer, Socobell Automotive Pty Ltd (“Socobell”), between approximately September 2018 and November 2018.
2The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s325(1) and s325(2) of the Act.
3There, “serious injury” is defined, relevantly, as meaning:
“(a) permanent serious impairment or loss of a body function … .”
4The body function relied upon in this application is the left elbow; alternatively, the right shoulder.
5Pursuant to s325(2)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being more than “significant” or “marked” and as being “at least very considerable”.
6I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must be also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function.
7Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of the hearing and permanently thereafter.
8Subsections (2)(e) and (2)(f) recite the formula by which loss of earning capacity is to be measured.
9Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
10Subsection (2)(h) provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] in reaching my conclusions.
[1](2005) 14 VR 622
12The defendant concedes the plaintiff suffered an injury to her right shoulder between September and November 2018, but does not concede that such an injury meets the requirements of the definition of “serious injury”, especially with respect to loss of earning capacity.
Compensable physical injury
13It is common ground that a compensable injury to the right shoulder occurred in the course of the plaintiff’s employment in the two-month period alleged when she was working on the Kenworth truck dashboard assembly area.
14On 16 November 2018, the plaintiff underwent an x-ray and ultrasound of the right shoulder. The x-ray findings were suggestive of rotator cuff disease. The ultrasound findings suggested a partial thickness articular surface tear measuring 9 x 3 x 7 millimetres of the supraspinatus tendon. The findings were said to be consistent with tendinopathy at the supraspinatus and subscapularis.[2]
[2]Exhibit B, Plaintiff’s Court Book (“PCB”) 16
Background
15The plaintiff swore two affidavits, dated 15 January 2020 and 12 January 2021.[3]
[3]Exhibit A
16The plaintiff was born in March 1958 and was sixty-two years old at the date of the hearing. She migrated from Macedonia to New South Wales in about January 1971.
17On arrival in Australia, she went to high school, but only lasted about six months because she could not speak or understand English. She did not undertake English lessons. At the age of fifteen, she started working in a textile factory and then worked in various factory jobs. She married and moved to Melbourne in about 1985 and obtained another factory job. She started working with Hooks Plastics in about 1989, which was the forerunner to the present employer, Socobell. The takeover of the company was in about 2012.
18The plaintiff was a machine operator and worked Monday to Friday from 7.00am to 3.30pm. Her usual duties up until September 2018 were to work in the moulding shop:
“… The machine would make the part and I would pack the parts into a box. I would pack lots of different things from various machines, but they were all quite light parts. When I worked in the moulding shop, we used to be rotated every two hours or so on a different machine or given different duties. I had been doing this job for years. It was repetitive work, but it was not heavy.”[4]
[4]Exhibit A, plaintiff’s affidavit dated 15 January 2020, paragraph [4] at PCB 2
19In about mid-2018, the HR manager, Joanne Spry, advised that the workers would be required to do a six-week rotation assembling dashboards for the Kenworth trucks. The plaintiff was moved to the dashboard assembly area in or about August 2018, with one co-worker. She was given a couple of days’ training on what to do and then left on her own to do the dashboards. The plaintiff completed seven dashboards per day in the last few days she worked in this department. The company had stipulated eight dashboards per day, but the plaintiff claimed this was too hard.[5]
[5]Exhibit A, plaintiff’s affidavit dated 15 January 2020, paragraphs [5]-[6] at PCB 4
20The plaintiff stated:
“The dashboards were large and heavy. Putting them together was awkward. Each dashboard needed something like 30 or 36 clips. A lot of force and pressure needed to be applied when I was working on the clips. Some clips needed me to push them into the dashboard really hard and other clips needed to be pulled from the dashboard really hard. We had to put 5 bigger screws into each dashboard using an airgun and also 5 of these bigger screws into each dashboard using a screwdriver. We also had to put in each dashboard another 10 smaller screws using an airgun. The clips were the hardest part of this job and I was using a lot of strength from my shoulders and arms. The only assistance I had was that when one dashboard was completed, someone else would help me move it from the workstation onto a rack.
On this job (RAM) we had to install 2 screws. With the right hand we would screw them in whilst holding them from underneath the part with the left hand. The task was difficult because the positioning of the hands was awkward. I also on this job (RAM) had another part to put on to of the (sic) dashboard. I had to hold the dashboard with my left hand and push this part forcefully with my right hand so it clips into the dashboard.
This job was called the ‘SILVERADO’ and I had to install the airbag. This was also quite awkward because I had to push the airbag with my right hand whilst guiding the airbag with my left hand from the other side so that it would click into place. I also had to apply the vinyl to the part and use a lot of force so that it would stick and not have air bubbles.
During the time I worked in the dashboard assembly area, I felt pain in my shoulders but mainly in my right shoulder. By the end of the day I was sore from the work I was doing.
On a day in September 2018 I recall I complained to the Supervisor Cameron that my right arm and both hands were sore from the job I was doing on the ‘SILVERADO’ and I asked Cameron if I could do a different job for the rest of the day or possibly to go home. Cameron did put me to work onto a different job for the remainder of that day. The next day, I was back on the same job that caused the pain in my right shoulder.
I told Joanne that the job was a hard job and really difficult for me and that I was in pain. I told her that the clips were extremely difficult to install by hand and she then told me that Ross was a good engineer and that he believed they are not that difficult to install. I know that some of the others complained to Joanna about the job being difficult too. I wanted to go back to the job in the Moulding shop I was doing before but Joanne would not return me there until I completed my 6 weeks training.”[6]
[6]Exhibit A, plaintiff’s affidavit dated 15 January 2020, paragraphs [7]-[12] at PCB 4-5
21On 24 October 2018, the plaintiff filled out a hazard/incident report form with respect to the pain in her right shoulder due to the Kenworth Ram Silverado.[7]
[7]Exhibit 9, PCB 56
22Thereafter, the employer commissioned a report known as P2 Group Functional Screening Assessment Report dated 26 October 2018 to assess the tasks in this area.[8] The author related:
“Based upon the results of the assessment process, Slobodanka does not [have] the capacity to meet the inherent requirements of the Machine Operator role as outlined in the comprehensive task and environment analysis. Slobodanka was observed to experience difficulty with some of the items of the assessment which involved heavier manual handling, forceful gripping and work above shoulder height. This is further supported by her current experience of right shoulder and neck discomfort. As a result of these functional limitations, Slobodanka would be at increased risk of injury or the development of degenerative of musculoskeletal conditions without the below restrictions and modifications in place.
• Minimise repetitive manual handling tasks to one lift per hour with a 6kg limit
• Avoid forceful gripping, pushing and pulling movements with the right upper limb and minimise exposure to these movements with left upper limb.
… .”[9]
(sic)
[8]Exhibit H, PCB 88-96
[9]Exhibit H, PCB 88-96
23Thereafter, the plaintiff was returned to the moulding department, wherein she stated:
“… I was still working with pain in my right shoulder. I took a few sick days every now and then to rest my shoulder so that I could continue working.”[10]
[10]Exhibit A, plaintiff’s affidavit dated 15 January 2020, paragraph [13] at PCB 6
24The plaintiff stated that she was stood down without pay and stopped working on 29 November 2018. She stated:
“… I do not know how much longer I would have been able to continue working even in the moulding department because of my right shoulder pain.”[11]
[11]Exhibit A, plaintiff’s affidavit dated 15 January 2020, paragraph [15] at PCB 7
25On 19 December 2018, a WorkCover claim was lodged for a right shoulder injury, together with neck and psychological injuries.[12] The claim was accepted for the right shoulder injury on 17 January 2019. The plaintiff has been in receipt of weekly payments of compensation from this time up until the date of hearing.
[12]PCB 57-58
Medical treatment
26The plaintiff swore as follows:
“Sometime in September 2018, I was so sore from my right shoulder that I went to see my family GP, Dr R Irani.
Dr Irani sent me to have some scans to my right shoulder and she told me that there was a problem with my shoulder. She gave me some medication and told me to rest. When Dr Irani received the results of the radiology of my right shoulder, she immediately called me to inform me that I was not to perform any tasks that required me to use my right arm above my right shoulder. I continue to see my GP at least once per month. She gives me certificates which say I am unable to work.
Dr Irani sent me to have physiotherapy in St Albans but I felt that the person I saw there was not helping my shoulder pain. Dr Irani then sent me to Erica at PhysioChoice in St Albans. I continue to see Erica about once every few weeks.
I also went to see a specialist, Mr A Chehata for my right shoulder. He discussed the option of having surgery to my shoulder but I am too worried to have surgery in case it makes me worse. He told me to continue with physiotherapy.
I also see Claire MacCallum once per month. She is my psychologist. I see her under the Medicare visits the government gives. I believe I have used all my 10 sessions this year and I will start seeing her again next year when Medicare gives me more sessions again.
For medication I take Tramal 50mg, two per day but if I have to drive somewhere, I will take Panadol instead as it makes me drowsy. I also take Antenex twice daily and one Temaze tablet at night before I go to sleep.”[13]
[13]Exhibit A, plaintiff’s affidavit dated 15 January 2020, paragraph [16]-[21] at PCB 7-8
Pain and suffering consequences
27The plaintiff swore:
“I am right hand dominant. As a result of my injury I have problems with my self-care. I am unable to reach behind my back to do up my bra so now I have to put it on from the front and turn it slowly to the back so that I can wear it. Washing and drying my hair is difficult. It takes me a while to wash it and I have to do most of it with my left hand to the best of my ability. To dry my hair, I have to sit down and put my right arm on my knee and use the blow dryer. It is just awkward and takes me longer than it used to. Anything that requires me using my arm above shoulder height is painful.
I am house proud. I would do all the jobs inside the house and my husband would do all the jobs outside of the house. Now everything has changed. My husband has to do most of the inside jobs and he still does the outside jobs. He does the vacuuming and mopping. He hangs the bigger items on the clothes line like the bed sheets. I can hang the easier items on a clothes horse inside the house but I am not as quick as I was before because of my shoulder problem.
I used to do all the cooking and I would make traditional Macedonian dishes. I would knead dough and bake cakes. Since my injury I only can cook basic dishes and I am unable to knead dough as I do not have the strength in my right shoulder. My husband does most of the cooking now and lifts all the heavy pots for me if I am cooking. We used to have a weekly family dinner with my sons and I would cook for them. Since my injury my husband took over the cooking for this also and recently, I asked them to stop coming to the weekly dinners as it has been upsetting me so much that I cannot cook like I used to for my boys.
I have two grandchildren from my son, Riste. They are aged 5 and 1. I am unable to lift them. To hold the one year old, I need to sit down and use my left arm to support him and only for a very short time. The older one wants to play games with me but I have to be careful with what I can play. I can take them to the park but I still need someone with me to help me and do any of the lifting if they want to get up on things like the slide or the swing. This upsets me very much as I feel that I am not being a good grandmother to them.
Often on weekends my husband and I would take our pushbikes out and go bike riding. Since my injury I tried maybe once or twice but I felt too much pain in my shoulder so I gave this up. In the summertime, we would go on holidays and I would go swimming at the beach. This is also something I am unable to do now as I do not have the rotation in my shoulder to be able to swim.
The medication I take makes me drowsy and it knocks me out. I drive only locally because of this and I do not take the Tramal if I need to drive until I am back home.
I would go out with friends, but since my injury I do not go out as often. I prefer to be home and be alone. I have become sad and depressed because of my injury and I feel as though I am not the woman I used to be.
My injury has also caused strain in my relationship with my husband as he now carries the bulk of the load and it is too much for him. He works long hours as he is a truck driver. He not only has to financially support us now but he has taken on the bulk of things at home.
I am in pain every day. The pain increases when I do certain activities around the house. Even wiping the bench can be painful. But I also get frustrated sitting down and not doing anything.
My sleep is terrible. The pain wakes me up if I have rolled over onto my right side. This happens usually once every night and then keeps me awake. I struggle to find a comfortable position to get some rest. I do not remember the last decent night’s sleep that I have had. This leaves me feeling tired every day.”[14]
[14]Exhibit A, plaintiff’s affidavit dated 15 January 2020, paragraph [22]-[31] at PCB 8-9
Loss of earning capacity
28The plaintiff swore:
“I have not returned to any type of employment because of my right shoulder injury. I was planning to work until my retirement age. I am upset that I can no longer work because of my injury. I liked my job and I miss it. I was doing it for the last 29 years. I cannot do any office type work. I speak Macedonian at home with my husband and to my sons. I can speak and understand a little bit of English but it is very basic things I understand. I have very limited reading and writing skills.”[15]
[15]Exhibit A, plaintiff’s affidavit dated 15 January 2020, paragraph [32] at PCB 9
29In her second affidavit sworn 12 January 2021,[16] the plaintiff swore she has not worked since 29 November 2018 and continues to receive weekly payments from WorkCover.[17]
[16]Exhibit A, plaintiff’s affidavit dated 12 January 2021
[17]Exhibit A, plaintiff’s affidavit dated 12 January 2021, paragraphs [12]-[13] at PCB 13
30In cross-examination, it was put to the plaintiff that she would be able to return to her job in the moulding area or, alternatively, perform the work contained in the return-to-work plan dated 16 January 2019.[18] The plaintiff replied that she had tried to do the job in the moulding area after the dashboard work, but found that she was increasingly unable to cope. As far as the Frank Green nut offer of work was concerned, the plaintiff stated she attempted this job under supervision from the defendant’s industrial doctor, Dr Bruce Poppenbeek. She found that the cross-examination with respect to this job was as follows:
[18]Exhibit 6
Q:“So Ms Kalajdziovska, Dr Poppenbeek says this, ‘The frank green nut and seal assembly involves preparing and assembling various very small and very light parts at a bench’. You’d agree with that?---
A:Yes, that’s correct, yes.
Q:He says also, ‘These parts were brought to the boardroom where we had our meeting. There are round (indistinct) and the operators sprays silicone on this from a dispenser and lays them out on a table’?---
A:Yes.
Q:He goes on to say, ‘A light plastic part is then pressed onto an O-ring, placed into a box and the process is repeated’. Agree with that?---
A:Yes.
Q:Not the next paragraph, Your Honour, but the one after that. (To witness) Ms Kalajdziovska, Dr Poppenbeek says, ‘Ms Kalajdziovska did the two processes outlined above at the table and did not appear to me to have any difficulty doing so’. Did you perform the process in front of Dr Poppenbeek?---
A:Look, I wouldn’t agree with that in that sense that, yes, he did see me what I did, I probably did three or five pieces but to do what I had to do and apply that pressure all day, that’s something different.
…
Q:Ms Kalajdziovska, Dr Poppenbeek writes ‘She claimed’ - that is you – ‘however, that placing the O-rings on the plastic shaft was causing shoulder pain’. And then he goes on to say ‘Although I explained to Ms Kalajdziovska that this was not logical from my viewpoint’?‑‑‑
A:Look, that’s right if you only do three, four pieces, but you know, to do that all day - and I probably did five or 6,000 pieces.
Q:So you complained to Dr Poppenbeek in showing him the task you were performing that you had shoulder pain, is that correct?‑‑‑
A:Yes, I told him that because I had to apply pressure.
Q:When you refer to applying pressure, can you just describe what that means?‑‑‑
A:As I am sitting on the bench for example, I have to use force with my thumb to press it down.
Q:And - so it’s a pressure of - it’s a pressure that you put on your dominant right thumb?‑‑‑
A:Yes, but as you are pressing down, you’re using the whole arm, and I feel pain. It’s not just the thumb.
Q:There is no reason, Ms Kalajdziovska, that you couldn’t have performed this particular job standing up, is there?‑‑‑
A:Yes, yes. I could. But again, you have to do the same thing, whether you are sitting or standing.
Q:So the pressure you are referring to is pressure on your dominant right thumb, but not direct pressure on your shoulder as such?‑‑‑
A:That’s the whole arm, including the shoulder, arm, thumb.
Q:And what is it that you say you had to push?‑‑‑
A:The seal. The rubber seal.
Q:All right. Ms Kalajdziovska, Dr Poppenbeek says this. ‘I suggested that if she has this difficulty, she could do this process with her left hand, and she demonstrated this quite satisfactorily.’ You’d agree that you could do the job with your left hand, couldn’t you?‑‑‑
A:That’s right. I did do that with my left hand. But like I said before, I’m not able to use my left hand and do all that all day.
Q:You would agree also that you demonstrated using your left hand quite satisfactorily to Dr Poppenbeek at the time?‑‑‑
A:Yes, I did it. I showed him.
Q:And you would agree that this sort of work could be done at your own pace?‑‑‑
A:Yes, that’s right. That’s what they said. They said that because it’s light duty, you don’t have to make so many pieces.
Q:Ms Kalajdziovska, you keep referring to this light duties, but you do accept that this is a full-time role that was being offered to you, don’t you?‑‑‑
A:I’m not sure. I can’t remember if it was a full-time job.
Q:It was - to put it another way, Ms Kalajdziovska, this is not a job that was made specifically for you, was it?‑‑‑
A:No, that’s right. It wasn’t specific for me, no.
Q:No, and would it be a surprise to you if I suggested that this job is still a real job and offered by the employer today?—
A:Maybe it is. I don’t know.”[19]
[19]T17, L17 – T20, L5
31Further, in cross-examination, the plaintiff accepted that she had not looked for any other jobs since ceasing with Socobell, the reason being the pain in her right shoulder.[20]
[20]T21, L27
32Further under cross-examination, the plaintiff alleged that she was supposed to have English classes before she had a computer course, but none were offered to her. In any event, she stated she did not have any computer skills, she did not own a computer and did not have the internet.[21] Further, the plaintiff stated that the rehabilitation firm, IPAR, had told her “‘You need to do English classes’ because I can’t read and can’t write”.[22]
[21]T22, L11-23
[22]T23, L23-25
33It was further put:
Q:“IPAR assisted you with resume writing, didn’t they?---
A:Yes.
Q:And they provided you with a number of copies of your resume once they prepared it?---
A:Yes.
Q:And they also advised you in relation to confidence and building up your skills in relation to interviews, job interviews, didn’t they?---
A:Yes.
Q:And they also suggested that there were jobs out there that you could perform, didn’t they?---
A:Yes, that’s right, they did recommend a job like working in Woolworths, for example, where the self-service counters are.
Q:They also suggested jobs like a light packer job?---
A:I don’t remember about the light packer
Q:How about do you remember light cashier job? Was that the supermarket job you’re referring to?---
A:That’s right, yes, I do remember the supermarket but I’m not able to work and help people because I need help when I go there myself.
Q:What sort of help are you referring to?---
A:How to do the self-service check-out.
Q:So they offered all - they suggested to you that you could possibly - or a suitable job might possibly be as a meter reader. Isn’t that right?‑‑‑
AYes, but I wouldn’t understand that.
Q:They also suggested a job like a crossing supervisor?‑‑‑
A:Yes, yes, that’s right. But you know, even a job like that, you know what I mean - I need to be able to communicate, I’d have to hold the lollipop stick, if something happens - it might rain, I need to hold an umbrella ‑ ‑ -.”[23]
[23]T23, L26 – T24, L22
34When it was suggested to the worker that she had decided to retire at sixty-two, she replied that she wanted to retire when she reached pension age at either sixty-five or sixty-seven and wished to work until then.[24]
[24]T28, L12-13
The Plaintiff’s medical evidence
35The plaintiff’s treating general practitioner, Dr Roshan Irani, first reported on 2 March 2019.[25] Part of the history taken on 14 September 2018 was as follows:
[25]Exhibit C
“… Slobodanka presented with right shoulder pain due to heavy lifting of dashboard off the machine, putting on the table and pressing on it certain nails. Also, she was tender all-around right shoulder around right Scapula, shoulder movement was restricted to full range, to abduction and external rotation.
X-Rav & U/S Right Shoulder
X-Ray Right Shoulder:
Findings: The glenohumeral joint is not degenerative. Mild degenerative change of the AC joint. There is minor sclerosis of the subacromial surface suggestive of underlying rotator cuff disease. The subacromial space is preserved. No aggressive osseous lesion evident.
CONCLUSION:
X-Ray findings suggestive of rotator cuff disease. No evidence of established glenohumeral joint osteoarthritis. Mild degenerative disease at the AC joint.
Ultrasound Right Shoulder:
Findings: There is a partial thickness articular surface tear measuring 9x3x7mm of the supraspinatus tendon. The subacromial bursa is not thickened but there is impingement, consistent with subacromial bursitis.
The subscapularis is degenerative. The infraspinatus is intact. The AC joint is mildly Degenerative, but non-tender to probe pressure.
Normal appearance of the biceps tendon.
CONCLUSION:
Findings consistent with tendinopathy at the supraspinatus and subscapularis. Partial thickness articular surface tear of the supraspinatus tendon.
Mild accompanying subacromial bursitis.
Slobodanka was motivated, keen to continue working and reluctant to put in WorkCover claim and was keen to continue with light duties.
On 1/12/02018 Slobodanka received a letter from the company ‘Suspension of Employment’. She had refused to sign a consent form for assessment to determine her ability to perform work safely and the company was seeking access in order to ascertain her safety at work. Slobodanka had filled injury form for right shoulder injury in 24/10/2018 but continued working. She was very upset at the attitude and treatment towards her by the company, she felt angry, stressed.
Initially she took time off her Sick Leave but later made a WorkCover claim. Slobodanka has been off work since 07/12/2018. Currently she is treated conservatively with analgesics, referred for Physiotherapy (on Medicare).
Diagnosis: -Rotator cuff tear to right shoulder, tendinopathy and bursitis.
-Stress
Treatment: She needs to continue with her current Physiotherapy, may need a local Steroid Injection to shoulder to help with pain and later may need surgical management if response remains poor.”[26]
[26]Exhibit C, first report of Dr Roshan Irani, dated 2 March 2019, PCB 20-21
36In her second report dated 29 July 2020,[27] Dr Irani described the plaintiff’s progress as follows:
“With poor response to conservative management she was referred to Mr Ash Chehata Orthopaedic surgeon.”[28]
[27]Exhibit C, second report of Dr Roshan Irani dated 29 July 2020, PCB 2-23
[28]Exhibit C, second report of Dr Roshan Irani, dated 29 July 2020, PCB 22
37In the meantime, an MRI scan had been performed on the right shoulder, with Dr Irani reporting as follows:
“1.Supraspinatus severe tendinosis with fraying/small intrasubstance tears [at] the footplate. No high grade partial thickness or full thickness tear.
2.Subscapularis mild tendinosis with small intrasubstance split tear of Inferior fibres.
3.Small amount of fluid in the subacromial bursa indicating subacromial bursitis and impingement in the correct clinical setting. Background of severe AC joint osteoarthrosis with osteophytes and laterally downsloping acromion encroaching on the subacromial space.
4. Moderate intra-articular long head of biceps tendinosis.”[29]
[29]Exhibit C, report of Dr Roshan Irani, dated 29 July 2020, PCB 23
38Dr Irani further reported:
“Mr Chehata felt she was not ready for surgical treatment at this stage and should continue with Physiotherapy. He did stress Slobodanka being an unskilled manual labourer would have difficulty resuming work.
She has difficulty with house work like cooking, cleaning, vacuuming etc. and relies a lot on her husband’s support.
…
I have been seeing Slobodanka regularly and she continues to remain miserable with right shoulder pain. With ongoing pain and discomfort Mr Chehata performed Hydro dilation in his room to help improve her symptoms.
…
Prognosis: Unable to prognosticate at this stage as her injuries have not stab[i]lised yet. She needs to continue with her current conservative treatment and may need surgical management in the future.
She remains unfit to perform her preinjury duties. Slobodanka has always performed manual factory labouring job. She has no education, no training and poor English and will thus have difficulty being gainfully employed again.”[30]
(sic)
[30]Exhibit C, report of Dr Roshan Irani, dated 29 July 2020, PCB 23
39The treating orthopaedic surgeon, Mr Ash Chehata, first reported to the general practitioner on 2 May 2019.[31] He took a consistent history of work-related injury to the right shoulder and opined:
“Slobodanka presents with impingement and a painful rotator cuff in forward flexion and abduction to almost 130 deg with obvious signs and symptoms of partial thickness rotator cuff tearing. Her ultrasound from FMIG confirm a partial thickness tearing of supraspinatus and subscapularis and has surrounding subacromial bursitis present.”[32]
[31]Exhibit D, PCB 25
[32]Exhibit C, report of Mr Ash Chehata, dated 2 May 2019, PCB 24
40As to treatment, Mr Chehata stated:
“… she is certainly hesitant with regard to the lack of reliability and reproducibility of operative solutions. We have also discussed the ideas of Cortisone. She is taking ongoing analgesics and is unable to return back to any form of repetitive work due to the ongoing restriction and pain and at this stage we are organising an MRI scan in order to clarify the extent of the rotator cuff tendon tearing.
Unfortunately Slobodanka is unlikely to return back as an unskilled manual labourer and, although she has a realistic understanding of the activity modification, unfortunately it is unlikely to improve with time. We have discussed the limitations of surgical intervention as well as the realistic goals and, although she has been attending regular physiotherapy weekly, she has made minimal improvement.
At this stage I have reassured her that even spacing out the physiotherapy appointments to once every 3-4 weeks is very reasonable. I have also stressed the idea of a self directed exercise program which would be just as beneficial in terms of maintaining a mobile shoulder and she is considering all of her options.”[33]
[33]Exhibit C, report of Mr Ash Chehata, dated 2 May 2019, PCB 24
41In his second report, dated 8 August 2019, Mr Chehata stated:
“Slobodanka has presented today with a poor range of movement in her right shoulder. She forward flexes and abducts to only 50 deg and is having ongoing symptoms of pain and relentless ache and is unable to utilise her upper limb. At this stage she is continuing to require increasing doses of analgesics and her mental state is deteriorating further and further and more recently was almost involved in a car accident due to the memory loss and lack of concentration.
….
At this stage I will only review her as required but certainly cannot foresee her returning back to any form of employment at this stage considering her right shoulder condition and poor range of movement. She has also lost strength and is unable to utilise the arm to perform normal activities of daily living.”[34]
[34]Exhibit C, report of Mr Ash Chehata, dated 8 August 2019, PCB 25
42In his third report, dated 25 June 2020, Mr Chehata stated:
“I performed a hydrodilation (sic) in the rooms today with significant improvement in function, and although this may not be permanent, it certainly hopefully will improve her symptoms, as she has never had a formal injection.
At this stage we will see her response in the next 6-12 weeks and we will be guided from there. I will keep you updated. Thank you again.”[35]
[35]Exhibit C, report of Mr Ash Chehata, dated 25 June 2020, PCB 26
43In his fourth report, dated 10 August 2020, Mr Chehata advised the plaintiff’s instructing solicitors consistently with the advice to the general practitioner. He noted that throughout the treatment the plaintiff required increasing doses of Tramadol, Diazepam and Temazepam due to severe insomnia and anxiety, and unfortunately all of this situation bodes incredibly poorly for her long-term prognosis.[36]
[36]Exhibit C, report of Mr Ash Chehata, dated 10 August 2020, PCB 29
44As to employability, Mr Chehata stated:
“She clearly has no capacity to return back to such a repetitive job, and at this point in time, she has no prospects of regaining any formal employment, due to her inability to converse, read or write, and is basically almost illiterate in the English language.”[37]
[37]Exhibit C, report of Mr Ash Chehata, dated 10 August 2020, PCB 30
45Mr Chehata also stated:
“The treatment at this stage has all been conservative with numerous Cortisone injections and analgesics in order to depress the synovitic and bursitic picture associated with impingement.”[38]
[38]Exhibit C, report of Mr Ash Chehata, dated 10 August 2020, PCB 30
46Further, Mr Chehata stated:
“All of her activities, especially overhead activity has now been completed (sic) stopped. This has affected all her aspects of daily living, and social and domestic activities.
…
It is likely she will never be able to perform overhead or repetitive activity in the future, without some form of operative intervention, which may eventually be required, depending on her activity modification.”[39]
[39]Exhibit C, report of Mr Ash Chehata, dated 10 August 2020, PCB 31
47Dr David Kennedy, sports and industrial physician, examined the plaintiff and reported on 12 October 2020.[40] Dr Kennedy took a consistent history of work-related injury and treatment as stated above. He related her current status as follows:
“Mrs Kalajdziovska continues to see her physiotherapist currently once every four weeks and also takes medication for the pain, stress and anxiety. Sometimes she takes Panadol if she has to drive the car as the stronger medication causes drowsiness, particularly the Tramadol.”[41]
[40]Exhibit E
[41]Exhibit E, report of Dr David Kennedy, dated 12 October 2020, PCB 47
48On examination, Dr Kennedy found that the right shoulder region and restrictions on flexion and abduction to about 120 degrees with pain and there were also restrictions on extension, internal rotation and external rotation, with pains at the extremes of the restricted movements when compared to the left shoulder region.[42]
[42]Exhibit E, report of Dr David Kennedy, dated 12 October 2020, PCB 48
49Dr Kennedy also stated:
“Mrs Kalajdziovska has continued with physiotherapy, as well as core stretching and strengthening exercises, but continues to have significant problems with the functioning of her dominant upper extremity at the right shoulder joint and these restrictions will continue for the foreseeable future and will not only affect her occupational capacities and capabilities on the open labour market but also social, domestic and recreational activities. These restrictions will continue for the foreseeable future.”[43]
[43]Exhibit E, report of Dr David Kennedy, dated 12 October 2020, PCB 49
50Finally Dr Kennedy felt:
“… it is unlikely there will be any significant improvement with regard to the functioning of her right arm at the shoulder joint and she will continue to have restrictions in relation to the functioning of her right arm, restricting her physical capacities and capabilities.”[44]
[44]Exhibit E, report of Dr David Kennedy, dated 12 October 2020, PCB 49
51The plaintiff was also examined by Associate Professor Bruce Love, orthopaedic surgeon, who reported on 21 October 2020.[45] Associate Professor Love took a consistent history of work-related injury to the right shoulder as well as the history of treatment as outlined above. His assessment was as follows:
“Mrs Kalajdziovska has a significant soft tissue injury of the right shoulder and the diagnosis described on the MRI can be considered the cause of her symptoms.
In view of the persistence of symptoms, the only alternative for treatment would be surgical treatment. She has consulted Mr Chehata who is an experienced Orthopaedic Surgeon and it does not appear that there has been an elective decision made to consider rotator cuff decompression.
Her prognosis is such that I cannot see her improving spontaneously in the foreseeable future.”[46]
[45]Exhibit F
[46]Exhibit F, report of Associate Professor Bruce Love, dated 21 October 2020, PCB 53
The Defendant’s medical evidence
52The defendant first had the plaintiff examined by orthopaedic surgeon, Dr Bruce Low, who reported on 15 January 2019.[47] Mr Low took a consistent history of work-related right shoulder injury. His diagnosis was one of:
“Right shoulder subacromial bursitis and rotator cuff tendinitis. There could be a partial tear of the rotator cuff. She probably needs an MRI to be certain of that.”[48]
[47]Exhibit 2
[48]Exhibit 2, first report of Dr Bruce Low, dated 15 January 2019, Defendant’s Court Book (“DCB”) 24
53As to her fitness to work, Dr Low stated:
“Your client probably needs restricted duties because of her right shoulder pain. Apparently there are no restricted duties in her workplace, therefore she has no current work capacity.
…
Impingement such as this could take up to 18 months before it resolves.”[49]
[49]Exhibit 2, first report of Dr Bruce Low, dated 15 January 2019, DCB 25
54The extent of her condition was described by Mr Low thus:
“The right shoulder pain is ongoing. She cannot sleep on her shoulder. She cannot lift it up. There is a mid-arc catch when she puts the arm down by her side after having it abducted and up in the air. Examination shows impingement signs are positive. She has got reduced flexion and abduction and internal rotation with positive impingement consistent with the story of impingement shoulder tendinitis which came on in the workplace due to heavy lifting and stress … .”[50]
[50]Exhibit 2, first report of Dr Bruce Low, dated 15 January 2019, DCB 26
55In a report dated 5 February 2019, Mr Low provided a follow-up report, having seen some additional documents. He considered she had the capacity to complete suitable duties as per a return-to-work plan working pre-injury hours. He noted:
“… I see that she should avoid lifting above shoulder height, lifting more than 5 kg, pushing or pulling 5 kg or greater and avoid using the injured arm or hand. No reaching above shoulder height. I agree with this return to work plan.”[51]
[51]Exhibit 2, second report of Dr Bruce Low, dated 5 February 2019, DCB 30
56The plan itself was tendered in evidence.[52] Essentially, it was entitled: “Frank Green Nut and Seal Assembly” and dated 16 January 2019.[53] It was the plan upon which the plaintiff was cross-examined, referred to above. The plaintiff herself stated that she could perform three or four of these tasks with her left hand, but would be unable to do five thousand or more per day because of the force required and the pain thus caused as described.
[52]Exhibit 6
[53]Exhibit 6
57Thereafter, the defendant chose to have the plaintiff examined by occupational physician, Dr Ralph Poppenbeek, who first reported on 8 July 2019.[54] His diagnosis was as follows:
“I believe the diagnosis is complex. There is evidence of rotator cuff degenerative disease, mild acromioclavicular joint degeneration, minor supraspinatus tendon tear and subacromial bursitis and impingement.
…
I tend to agree with Dr Low, that the usual recovery timeframe for conservative treatment for such conditions is 12 to 24 months from onset.”[55]
[54]Exhibit 3
[55]Exhibit 3, first report of Dr Ralph Poppenbeek, dated 8 July 2019, DCB 177
58In his second report, dated 16 August 2019, Dr Poppenbeek considered there would be a further six to nine months for resolution of the working capacity in respect of the physical injury.[56]
[56]Exhibit 3, second report of Dr Ralph Poppenbeek, dated 16 August 2019, DCB 33
59In his third report, dated 26 July 2019, therein he reported on an organised site visit dated 10 July 2019, where Dr Poppenbeek inspected the duties in the Frank Green nut and seal assembly.
“The Frank Green nut and seal assembly involves preparing and assembling various very small and very light parts at a bench. These parts were brought to the boardroom where we had our meeting. There are round O-rings and seals and the operator sprays silicone on this from a dispenser and lays them out on a table. A light plastic part is then pressed onto an O-ring, placed in a box and the process is repeated.
…
Ms Kalajdziovska did the two processes outlined above at the table and did not appear to me to have any difficulty doing so. She claimed, however, that placing the O-rings on the plastic shaft was causing shoulder pain, although I explained to Ms Kalajdziovska that this was not logical from my viewpoint. I suggested that if she has this difficulty she could do this process with her left hand and she demonstrated this, quite satisfactorily.
I was informed that the work would be self-paced and the patient could sit or stand as required. There is nothing heavy to be lifted, nor is there any overhead work.”[57]
[57]Exhibit 3, third report of Dr Ralph Poppenbeek, dated 26 July 2019, DCB 35
60Unfortunately, Dr Poppenbeek did not comment on the amount of force required to press the plastic part onto an O-ring. It seems he did not attempt this process himself. The plaintiff stated that she could perform three or four with her left hand, but would not be able to perform a daily rate of some five thousand items. I accept her evidence that the pressure thus exerted did cause pain in her shoulder. Further, in cross-examination it was emphasised that this was a “real job” and as such it is unlikely that an employer would accept a handful of items to be completed in one day, compared to the five thousand, as stated by the plaintiff.
61The defendant then had the plaintiff examined by consultant occupational physician, Dr David Barton, who reported on 22 May 2020.[58] Her then current complaints were described as follows:
“At this stage she does not believe that she is any better at all. Ceasing work appears to have not provided any particular benefit. She says that she has constant pain generally around the shoulder that is in the same area and of the same type as she has always felt. The pain is present all day and she has difficulty sleeping. Her problem is not particularly affected by the change in season. She says that her pain is made worse with lifting the arm, lifting heavy items and general activity. She says that she has been advised to avoid any activity that hurts.”[59]
[58]Exhibit 5
[59]Exhibit 5, report of Dr David Barton, dated 22 May 2020, DCB 58
62Otherwise, Dr Barton took a consistent history of work-related right shoulder injury, as described above.
63In essence, Dr Barton considered that the degenerative changes shown on radiological findings were all pre-existing and could have been aggravated by the work described. However, he considered that such a problem would be:
“… expected to settle, regardless of the evidence of the pre-existing radiological findings. I believe she now presents with a non-physically based problem related to the compensation process.”[60]
[60]Exhibit 5, report of Dr David Barton, dated 22 May 2020, DCB 60
64In this regard, I consider Dr Barton to be at odds with the other medical practitioners in that, although there was an expectation by him that the symptoms would settle, it would appear that they have failed to do so, if one accepts the plaintiff’s credit, which I do. It would appear that the pre-existing radiological findings are consistent with the continuation of symptoms, as described by the other practitioners.
65The defendant also had the plaintiff examined by general orthopaedic and trauma surgeon, Dr Graeme Doig, who first reported 29 October 2019.[61] He took a consistent history and referred to the various investigations. His diagnosis was one of:
“… a soft-tissue injury to the dominant right shoulder with a possible rotator cuff tear. The worker continues to suffer from pain and restrictions.”[62]
[61]Exhibit 4
[62]Exhibit 4, first report of Dr Graeme Doig, dated 29 October 2019, DCB 42
66Dr Doig also considered that the prognosis must be guarded with respect to returning to pre-injury activity levels and employment, and the clinical presentation was now consistent with a chronic pain-type of picture as opposed to a simple soft-tissue injury.[63] Finally, according to his impairment evaluation pursuant to the AMA 4th Edition, he considered there was a 16 per cent permanent impairment to the upper extremity, which converted to a 10 per cent permanent impairment of the whole person.[64]
[63]Exhibit 4, first report of Dr Graeme Doig, dated 29 October 2019, DCB 43
[64]Exhibit 4, first report of Dr Graeme Doig, dated 29 October 2019, DCB 43
67In his second report, dated 4 December 2020, Dr Doig noted that the plaintiff continued to complain of chronic pain at the shoulder, with associated weakness and difficulty using the arm overhead.[65] Further, he considered that there had been no progress since his previous examination, with the shoulder condition appearing to have plateaued with deterioration or improvement.[66]
[65]Exhibit 4, first report of Dr Graeme Doig, dated 29 October 2019, DCB 49
[66]Exhibit 4, first report of Dr Graeme Doig, dated 29 October 2019, DCB 50
68In viewing Dr Poppenbeek’s report of 26 July 2019, Dr Doig considered that the plaintiff did have the ability to perform those duties, as there was no overhead lifting involved. He considered that restricted hours initially would be preferable. However, once again, there was no analysis of the pressures involved and the degree of repetition involved in that job.
69Dr Doig also had occasion to peruse the vocational assessment report compiled by IPAR, dated 21 April 2020.[67] He considered that all the jobs contained therein were not particularly physically demanding. He considered that the plaintiff had:
“… less than 5 kgs lifting, pushing and pulling restriction at or below waist height with the dominant right arm. She is unable to use her right arm overhead and certainly should not be lifting above shoulder height. On paper, all of these positions would not seem to exceed these physical restrictions. It is therefore my opinion that all positions would be suitable based on my current examination findings.”[68]
[67]Exhibit 7
[68]Exhibit 7, first report of Dr Graeme Doig, dated 29 October 2019, DCB 52
70Dr Doig then finally reported to the defendant solicitors on13 January 2021. On this occasion, he referred to the psychiatric report of Dr Timothy Entwisle, who concluded there was no psychiatric basis for a diagnosis of chronic pain. Dr Doig commented:
“The pathology evident on the medical imaging which was undertaken in the past and may have deteriorated since, revealed possible rotator-cuff tearing at the right shoulder in the presence of pre-existing, idiopathic osteoarthritis of the acromio-clavicular joint. Both pathologies could result in chronic pain and secondary restricted function at the shoulder. As I pointed out in my previous reports, Ms Kalajdziovska’s apparent, physical restrictions in shoulder movement appeared to be excessive relative to this underlying pathology, although no up-to-date imaging was available for my perusal. She certainly was being treated for chronic pain by her General Practitioner and had remained on the same analgesics over a 2-year period. It therefore would appear that she is suffering from chronic pain, although as pointed out by Dr Entwistle there may be other reasons for her failure to progress from a functional perspective which are unrelated to the underlying shoulder pathology.”[69]
[69]Exhibit 7, third report of Dr Graeme Doig, dated 13 January 2021, DCB 56
Analysis
71In my view, Dr Doig’s opinion in the above paragraph is consistent with the opinions of the plaintiff’s medico-legal examiners, to the effect that the implicated work has significantly contributed to rotator-cuff tearing at the right shoulder, in the presence of pre-existing idiopathic osteoarthritis of the acromioclavicular joint. I accept his opinion that –
“… Both pathologies could result in chronic pain and secondary restricted function at the shoulder.”[70]
[70]Exhibit 7, third report of Dr Graeme Doig, dated 13 January 2021, DCB 56
72I do not believe, having seen the plaintiff in the witness box, that she was exaggerating her disabilities.
73It is clear enough to me that the plaintiff had not intended to retire from the workforce until she had reached the pension age of sixty-five or sixty-seven. I also accept that she tried to continue working for as long as she felt able, given the chronic pain from the right shoulder. All the medico-legal examiners considered that she is permanently unfit for her pre-injury employment, and I do not accept that she is capable of performing the Frank Green nut and seal assembly job, for the reasons expressed above.
74Leading Counsel for the plaintiff submits that the plaintiff is not able to carry out “suitable employment”, as defined in s3 of the Act, principally in regard to:
(i) the nature of the worker’s incapacity and the details provided in medical information, including, but not limited to, the Certificates of Capacity from the worker’s treating doctors;
(ii) the nature of the worker’s pre-injury employment; and
(iii) the worker’s age, education, skills and work experience.
75It is clear enough that the evidence adduced in cross-examination relates to the plaintiff’s physical capacity to undertake the duties put to her. However, as Ashley and Kaye JJA stated in Richter v Driscoll:[71]
“[R]eturn to work in employment ... requires more than that a physical capacity to engage in a task or tasks.”
[71] [2016] VSCA 142 at paragraph [76]
76The employment must be, as specified in the definition of “no current work capacity”, “suitable employment”. For their Honours, the definition of “suitable employment” –
“... plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise. … .”[72]
[72]Richter v Driscoll (ibid) at paragraph [76]
77Their Honours warned:
“… paragraphs (a)(ii), (iii) and (iv) would have no work to do.”[73]
[73] Richter v Driscoll (ibid) at paragraph [76]
78Accordingly, the question whether a worker is able to return to work in suitable employment, according to their Honours –
“... specifically requires consideration of matters travelling beyond physical capacity to perform a task. … .”[74]
[74] Richter v Driscoll (ibid) at paragraph [77]
79Accordingly, the construction which Ashley and Kaye JJA placed on the definitions of “no current work capacity” and “suitable employment” can be expressed as follows:
“... whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances – these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce. … .”[75]
(Emphasis added).
[75] Richter v Driscoll (ibid) at paragraph [95]
80They further stated:
“The other, closely allied, way in which the matter may be put is shown in the passage of the judgment of Fletcher Moulton LJ in [Cardiff Corporation v Hall [1911] 1 KB 1009], where his Lordship referred to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’.”[76]
[76] Richter v Driscoll (ibid) at paragraph [96]
81Osborn JA agreed with Ashley and Kaye JJA in this regard. His Honour stated:
“The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated. ...
A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.
This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.”[77]
(Emphasis added).
[77] Richter v Driscoll (ibid) at paragraph [143]-[145]
82Having considered the three IPAR reports constituting Exhibit 7, I am satisfied that in order to undertake a realistic job on the open labour market, purely from a physical standpoint, the plaintiff would be limited to local employment for very minimal self-paced hours per week, only using her left non-dominant upper limb. In my opinion, given the combination of physical and other factors, such as protracted fluctuating pain with activity and sleep disturbance, the plaintiff realistically has “no current work capacity”. Also, I find that this incapacity for work is likely to be open ended. Further, I consider that it is for the Court to decide these issues, rather than a vocational expert.
83In my view, the uncontested restriction set out in the plaintiff’s affidavit in form, to a large extent, her capacity to return to work “as a settled member of the workforce”. In particular, her inability to perform the Fred Green nut and seal assembly in any meaningful way militates against her being able to perform in the workforce on a regular and reliable basis, her good intentions notwithstanding. In my view, this is consistent with the opinions of her treating general practitioner and surgeon.
84In all the circumstances, I am satisfied the plaintiff does not retain “powers of labour as a merchantable article”.[78]
[78]Richter v Driscoll (ibid) at paragraph [96]
85Leave will be granted to the plaintiff to issue proceedings for economic loss damages, and in accordance with the principles set out in Advanced Wire & Cable Pty Ltd v Abdulle,[79] leave will also be granted to bring a claim for pain and suffering damages.
[79] [2009] VSCA 170 at paragraphs [63]-[64]
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