Kheo v Gatic Pty Ltd
[2013] VCC 1992
•13 December 2013
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00262
| KOK-HUOTH KHEO | Plaintiff |
| v | |
| GATIC PTY LTD - and - WORKSAFE VICTORIA | First Defendant Second Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2013 | |
DATE OF JUDGMENT: | 13 December 2013 | |
CASE MAY BE CITED AS: | Kheo v Gatic Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1992 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to right shoulder – pain and suffering – loss of earning capacity – consequences of injury
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b); (37)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167
Judgment: Leave granted to issue proceedings for pain and suffering.
Application with respect to economic loss dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis | Nowicki Carbone |
| For the Defendants | Ms J Forbes | Minter Ellison |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered by the plaintiff in the course of his employment with the first defendant, Gatic Pty Ltd, in particular on 16 December 2005 whilst lifting a heavy gas bottle onto a forklift (“the injury”). The 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 s134AB(37)(38) of the Act.
2 The plaintiff brings this application first pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There “serious injury” is defined relevantly as meaning “(a) permanent serious impairment or loss of a body function”. The body function relied upon in this application is principally the right shoulder.
3 The plaintiff relied upon three affidavits and gave viva voce evidence and was cross-examined. In addition, both parties relied upon medical reports and other material which was tendered in evidence. In particular, the defendants relied upon the affidavit of Desmond Gamble sworn 11 April 2013. I have read all the tendered material.
Outline of Section 134AB
4 The impairment of a body function must be permanent in the sense that it is likely to continue into the foreseeable future. The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act imposes specific burdens in relation to a claim for loss of earning capacity. By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity 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”.
5 I am required to consider the consequences to this particular plaintiff viewed objectively arising from the injury. Comparison must 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, mental or behavioural disturbances or disorders. Here, where 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 hearing and permanently thereafter. Subsections 38(e) and (f) recite the formula by which loss of earning capacity is to be measured. Subsection 38(g) requires questions of rehabilitation or retraining to be considered in determining whether the 40 per cent loss has been established.
6 Subsection 38(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases. I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Jayatilake v Toyota Motor Corp Australia Limited[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2][2008] VSCA 167
7 The defendants concede that the plaintiff suffered injury to his right shoulder on or about 16 September 2005 but does not concede that such injury meets the requirements of sub-paragraph (a) of the definition of “serious injury” referred to above.
Compensable physical injury – loss of earning capacity
8 It is common ground that a compensable injury occurred in the course of the plaintiff’s employment as a leading hand with the first defendant on 16 September 2005 whilst lifting a gas bottle onto a forklift. He felt a sharp pain in his right shoulder.
9 The injury has been identified by MRI scan in November 2005 as a full-thickness tear of the mid and anterior aspect of the supraspinatus tendon.
10 He was referred to orthopaedic surgeon, Mr Chris Pullen, who performed surgery on 21 February 2006 by way of a right shoulder arthroscopy, subacromial decompression, bursectomy and rotator cuff repair and debridement.
11 Following surgery, he had physiotherapy and acupuncture treatment. He was certified fit to return to modified duties on 1 May 2006 with restrictions of no overhead lifting and no lifting of heavy weights.
12 It is common ground that the injury has caused right shoulder pain and limitation of movement and it has fluctuated in severity.
13 On 19 July 2006, the plaintiff underwent his first cortisone injection in the right shoulder performed by Mr Pullen. On 17 October 2006, a second cortisone injection was administered.
14 On 13 November 2006, the plaintiff was certified to return to full-time duties. He gave evidence that the lifting restriction was thereupon raised from 5 kilograms to 10 kilograms. He also said:
“I was told not to lift over my shoulders and also not to lift too heavy (sic). If I lift too many repetitive heavy things I have to have breaks.”[3]
[3]Transcript (“T”) 18, L17-23
15 Thereafter, the plaintiff was cross-examined to the following effect:
Q: “So you were told no lifting up high, correct?---
A: Yes.
Q: And not too much repetitive?---
A: Yes.
Q:But being sensible about it, you were able to do some lifting?---
A:Yes.
Q:Not too heavy and not hold too long?---
A:Yes.
Q:And that’s what you did, and that really allowed you to get back to your normal job as a leading hand, didn’t it?---
A: Yes, because before the surgery, before the injury, I was the leading hand, so when I came back they keep that position for me.
Q:And you were able to do that position as a leading hand again after your surgery from, let’s say, the beginning of 2007 until you were retrenched in 2009; is that right?---
A:Yes, correct. But do remember that during that time between early 2007 until retrenched (sic) time the company quite understood about me, they told me to have breaks as much as I can if I cannot handle with the pain, and also I have to see my doctor, my specialist about my condition regularly.”[4]
[4]T18, L24 to T19, L10
16 It was then put to the plaintiff by defence counsel:
Q:“… Because in your job as a leading hand before you didn’t have to do a lot of heavy lifting?---
A:No, not true, before injury I did a lot of heavy lifting because I’m the person who unloaded the container, so some material I have to lift by my hand.
Q:Most of the time you used the forklift, is that right?---
A:Yes, because many pallets I have to do every day.
Q:Any many pallets you did every day after your surgery using the forklift, true?---
A:Yes.”[5]
[5]T19, L17-25
17 Upon further cross-examination, the plaintiff agreed that he had never complained to Mr Gamble, his supervisor, about pain in his shoulder once he returned to full duties. However, he said Mr Gamble had agreed to allow him to have more breaks if they were needed. It was then put to him:
Q:“And even with those breaks you were able to do your job as a leading hand without, Mr Gamble says, any issue, without any need to have time off or to make complaints or to have certificates that stopped you from doing things?---
A:Yes.
Q:Mr Gamble says that in March 2009 the assembly operation closed and as a result of that everybody, you and him, everybody except one person was retrenched, is that true?---
A:Yes.
Q:So the reason that you stopped work in 2009 was because the assembly plant closed, not because of your injury?---
A:Yes.
Q:And if the assembly operation had stayed open, you could have continued there as a leading hand?---
A:Yes, for sure, because the company including the supervisor know me and give me breaks, give me what I need to help my injuries and plus I know everything in the company, that help me a lot in managing my daily duties.
Q:And in those years that you came back to work as a leading hand, and I have got your tax returns, I just want you to agree if this sounds about right, in 2007 you earned $64,125?---
A:I cannot remember quite well but probably around that, I just remember during that time I worked overtime a lot.”[6]
[6]T23, L7-30
18 It should be noted that the plaintiff swore that there was a change to the system of work when he returned following his injury as follows:
“Following my injury there was a change to the system of work. My co-workers were instructed that they were not to replace gas bottles on the forklift alone. Accordingly, since the accident two people were required to change the gas bottles.”[7]
[7]Exhibit A, plaintiff’s affidavit sworn 12 September 2011, paragraph 14, Plaintiff’s Court Book (“PCB”) 18
19 The defendants produced evidence from Desmond Gamble by way of affidavit sworn 11 April 2013. He was the plaintiff’s direct supervisor from 2003 until they were both retrenched on or around 27 March 2009. He recalled the injury to the plaintiff’s shoulder in September 2005 and attested that the plaintiff returned to work in his normal duties working normal hours in or about November 2006. After he returned to those duties, he worked as a leading hand until March 2009. He swore he did not complain of ongoing pain in the right shoulder and performed his duties without any apparent issue with his claimed injury.[8] Mr Gamble was not cross-examined on his affidavit.
[8]Exhibit 1
20 Accordingly, the main issue between the parties is whether the employment after the surgery in February 2006, but particularly from November 2006 until March 2009, constituted “suitable employment” as defined in the Act and, if so, whether the plaintiff is still able to perform such suitable employment at the date of hearing. In this context, it is common ground that since his retrenchment, the plaintiff applied for a job as a forklift driver with another company, being suitably qualified, and was told that no job was available at the present time. It is common ground that if employment such as that being performed up until March 2009 and/or the forklift job applied for, constitutes “suitable employment”, and the plaintiff is presently fit for such employment, then he would fail with respect to his economic loss claim.
21 Plaintiff’s counsel submits that the chief impediments to the plaintiff being able to perform suitable employment, in addition to the restrictions extant because of the injury, are his severe limitations in being able to speak English and the loss of a benevolent employer with a good work history. The defendants, on the other hand, submit that the employment as at March 2009 was a “real job” and that the plaintiff was satisfactorily performing same, as attested to by both Mr Gamble and the plaintiff himself.
22 The defendants also point to the fact that he was performing overtime in 2007 and that his income level of $64,000 is corroborative of the employment being “a real job”.
23 Plaintiff’s counsel concedes that in the context of this current matter, the plaintiff would need to prove that there has been a deterioration in his condition on account of the injury since March 2009 such that he is no longer fit for “suitable employment”.
The medical evidence
24 Following his clearance for full duties on 13 November 2006, the plaintiff underwent a third cortisone injection into his right shoulder on 18 January 2007. A fourth cortisone injection was performed on 4 April 2007. On 13 December 2007, surgeon, Mr Owen Deakin, retained on behalf of the defendants, ordered an ultrasound of the plaintiff’s right shoulder, which showed:
“Calcific tendonopathy noted involving the right distal supraspinatus tendon. No rotator cuff tear. Right subacromial/subdeltoid bursitis and bursal impingement. Left sided rotator cuff tendons and bursa normal.”
25 On 11 April 2008, the treating general practitioner, Dr Henderson, ordered an ultrasound of the right shoulder, which showed:
“Considerable thickening and heterogeneity of echotexture within the supraspinatus tendon is noted. These appearances would be consistent with marked tendinosis, but given the history of previous surgery, much of this change may be secondary to past supraspinatus tear and repair…There is however clear evidence of subacromial bursal thickening and impingement. There is some mild degenerative change in the AC joint on the right.”
26 On 19 March 2009, a fifth cortisone injection was performed on the right shoulder, and on 24 November 2010, a sixth cortisone injection was administered.
27 The general practitioner, Dr Henderson, requested advice from the treating surgeon, Mr Pullen, in an email dated 30 March 2011, indicating the plaintiff was having persistent symptoms but did not wish to proceed with surgery. Dr Henderson noted that the plaintiff had had six cortisone injections over the last three years, each of which provided a three-month period of pain relief, and he questioned whether further AC joint injections were advisable. On 2 April 2011, Mr Pullen indicated that he felt that further AC joint injections were problematic. He indicated that he thought the plaintiff should consider surgery for his right AC joint pain, as further AC joint injection “may run the risks of him developing a chondrolysis, or osteolysis of his clavicle and AC joint”.[9]
[9]Exhibit D, report 20 March 2013, PCB 52
28 It should be pointed out that Mr Pullen had previously offered surgery by way of a right shoulder arthroscopy and debridement in April 2008. Such treatment was declined then, as it was in 2011. No issue is made as to the refusal being unreasonable.
29 As a result of not proceeding to surgery and being advised against further cortisone injections, the plaintiff’s treatment is limited to consulting his general practitioner on a monthly basis and taking Celebrex tablets (200 milligrams) every night.[10]
[10]Exhibit A, affidavit sworn 30 April 2013, paragraph 10
30 Orthopaedic surgeon, Mr Peter Kudelka, saw the plaintiff for medico-legal purposes on 14 February 2013. His diagnosis was one of rotator cuff injury to the right shoulder, incompletely relieved by multiple injections and arthroscopic surgery. He considered that future treatment would consist of self-managed exercises and three-monthly visits to his general practitioner to monitor progress and prescribe any analgesic or anti-inflammatory medication which may be appropriate. He considered that at the age of fifty, with a seven-year history, improvement was unlikely. The injury had stabilised with a work-related permanent impairment and loss of function of the right shoulder on the dominant side. Mr Kudelka did not think the plaintiff was fit to work as a leading hand in a factory due to pain, weakness and restricted use of his right arm. He considered that any future employment would have to be alternative employment avoiding physical strains on the right arm, particularly at or above the shoulder level.[11]
[11]Exhibit F, PCB 65
31 The treating general practitioner, Dr Michael Henderson, in his report dated 11 April 2013, considered that the plaintiff had a capacity for employment with the following restrictions:
· Avoid sustained work above chest height
· Avoid work with right arm outstretched.
32 He further stated:
“Given his limited English and limited negotiable skills, these restrictions significantly impact on his ability to procure employment.”[12]
[12]Exhibit E, PCB 63
33 The defendants had the plaintiff examined by orthopaedic surgeon, Mr Jonathan Hooper, on 8 April 2013. His diagnosis was:
“Tendonopathy and capsulitis involving his right shoulder which was attributable to the incident in 2005.”
34 Mr Hooper stated that the plaintiff was found to have a tear in the rotator cuff which had been repaired but his shoulder continues to be symptomatic. He thought:
“Theoretically he would be capable of returning to suitable light work but placing him in a job may be difficult because of his lack of English and his inability to use his arm doing heavy/overhead work. His condition is stable, it is unlikely to deteriorate nor is it unlikely to improve greatly as time goes on.”[13]
[13]Exhibit 2, DCB 11
Loss of earning capacity consequences
35 Given that the plaintiff was able to work as a leading hand full-time between November 2006 and March 2009, some two-and-a-quarter years, and it is likely that he would have continued in that employment save for the retrenchment, and given that he applied for a full-time position as a forklift driver thereafter, I do not believe the plaintiff has discharged the onus of proof that he has suffered a 40 per cent loss of earning capacity in suitable employment following the said injury.
Pain and suffering consequences of the right shoulder injury
36 There is no doubt that the plaintiff has suffered ongoing pain and disability with respect to the injury as described, and that there is still an ongoing organic basis for that pain and disability.
37 Although he has not discharged the onus of proof with respect to a permanent 40 per cent loss of capacity to earn, it is clear that a wide range of heavy factory work has been closed to him and there has been a significant change in his lifestyle.
38 Further, I accept that there is an ongoing need for painkilling and anti-inflammatory medication in the setting where only surgery can now be offered as an alternative, since ongoing cortisone injections are medically contraindicated.
39 The plaintiff has also sworn that he is deprived of his enjoyment of playing table tennis in his private life and, in particular, he has difficulty sleeping, with the pain in his right shoulder often keeping him awake at night. I consider that these consequences, in addition to the pain and restrictions attested to in his affidavit sworn 12 September 2011, and confirmed in his later affidavits, result in consequences that are more than significant or marked and as being at least very considerable.
40 Accordingly, leave will be granted to the plaintiff to issue proceedings at common law for pain and suffering damages on account of his right shoulder injury suffered on 16 September 2005.
41 I will hear the parties as to any consequential orders.
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