Lister v LD and D Foods
[2016] VMC 19
•18 OCTOBER 2016
| IN THE MAGISTRATES’ COURT OF VICTORIA |
AT LATROBE VALLEY
WORKCOVER DIVISION
Case No.F11712274
| LISA LISTER | Plaintiff |
| v | |
| LD & D FOODS PTY LTD | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 11 & 12 OCTOBER 2016 |
DATE OF DECISION: | 18 OCTOBER 2016 |
CASE MAY BE CITED AS: | LISTER v LD & D FOODS |
MEDIUM NEUTRAL CITATION: | [2016] VMC019 |
REASONS FOR DECISION
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Catchwords: resignation of worker whilst working full time on modified duties – entitlement to weekly payments – application of s 114(2A) of Accident Compensation Act 1985.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Horner | Slater & Gordon |
| For the Defendant | Mr Richards | Minter Ellison |
HIS HONOUR:
1 Ms Lister is aged 48 years and was employed by the defendant as a process worker/food operator from 13 November 2002 until she resigned effective from 25 April 2013.
2 At the date of her resignation, she was working full time on modified duties as a result of a right arm/shoulder injury sustained in the course of her employment on 11 May 2011. In her letter of resignation, she informed the defendant that she was resigning after consulting with her treating doctors that she would be unable to return to her pre-injury duties. On 25 March 2014, she underwent surgery on her right shoulder for which liability was accepted by Allianz and she received weekly payments of compensation from 9 February 2014 in relation to her incapacity for work at that time until the expiration of the 130 week period.
3 Ms Lister now claims an entitlement to weekly payments from 25 April 2013 to 9 February 2014. By way of a Notice dated 14 April 2014, Allianz determined that as she resigned on 25 April 2013 and therefore reduced her current weekly earnings for reasons unrelated to her incapacity, she was not entitled to pay weekly payments of compensation in accordance with s 114(2A) of the Act.
4 Ms Lister asserts that s 114(2A) is not applicable as she did in fact resign for reasons related to her incapacity and, that if it is applicable, following the Court of Appeal decision in Jarvis v The Salvation Army Southern Territory[1], the court in the exercise of its discretion, having regard to the objects of the Act, should determine that she is entitled to weekly payments for the claimed period.
[1] [2016] VSCA 175.
5 The initial issue for the court to determine is whether or not a relevant precondition to the operation of s 114(2A) is established on the facts as found, and if so, whether or not weekly payments should be paid having regards to the object and purpose of the Act.[2]
[2] Jarvis – para 33.
6 The court heard evidence from Ms Lister, her Supervisor/Team Leader, Mr Lecchino and the defendant’s Return to Work Officer, Ms Commadeur. The parties tendered numerous documents including medical reports and reports from Nabenet, the rehabilitation provider for the defendant. Much of the evidence was uncontroversial.
7 Ms Lister commenced employment with the defendant on a casual basis in 1999 and on a permanent basis from 13 November 2002. She worked 12 hour shifts 4 days or nights each week followed by 4 days off. She initially experienced symptoms in her right arm in 2006 for which he had limited time off work and was paid weekly payments. Between 2006 and 2009 she was able to continue working on modified duties and eventually underwent surgery on her right elbow by Mr Evans, Orthopaedic Surgeon, in 2009. She was off work for a period of 2 months and then returned to work on modified duties.
8 On 11 May 2011, Ms Lister experienced a sharp pain in her right shoulder whilst pulling cardboard lids off boxes and had limited time off work. She lodged a WorkCover claim for which liability was accepted and underwent two hydro dilatation procedures by Mr Evans in August and November that year with limited improvement in her symptoms. Ms Lister continued to perform modified duties with restrictions that she avoid lifting any weight more than 5 kg with the left arm, avoid pushing or pulling with her left hand (apparently no claim was lodged for left elbow injuries and her treating doctor certified that she had recovered from this condition in July 2012), one-handed duties with the right hand and that general office duties may be suitable as she is right-handed. In June 2012, the lifting restriction was increased to 6.5 kg and by July 2012 she was certified fit for modified duties but to avoid lifting any weight more than 7.5 kg with her right arm, to avoid excessively pushing or pulling with the right hand and alternating between tasks. These restrictions remained to the date of her resignation on 25 April 2013 and thereafter until she underwent surgery on 9 February 2014 when she was certified unfit for all work for a limited period.
9 A report prepared by Ms Berry, from Nabenet dated 29 February 2012, indicated that Ms Lister had restrictions in her right shoulder movement and experienced a pulling sensation in her right elbow and grabbing in her right shoulder when reaching above shoulder height. Ms Lister also reported difficulty with lifting tasks and activities involving repetitive upper limb movement. She was using pain medication in the form of panadeine, disprin or nurofen. Ms Berry reported that it was anticipated Ms Lister would return to her pre-injury duties at an unknown date in the future. She noted that Ms Lister was currently performing modified duties consisting of; 24-hour taste testing, collecting samples of products using a light weight trolley, stock taking in the engineering department, administrative tasks and tidying the sample areas.
10 In a progress report dated 10 May 2012, Ms Berry noted that Ms Lister had recently commenced modified work tasks on two lines and experienced increased soreness and mainly used her left arm for some of the tasks. By June, she reported that Ms Lister’s symptoms had improved but she was still experiencing soreness and sleep disturbance due to her symptoms. On 22 June 2012, she reported that Ms Lister attempted additional line duties but experienced continuing pain in her right shoulder and by October her lifting capacity was increased to 7.5 kg and she had returned to packing duties and filling duties. At that stage it was anticipated that she may be able to return to pre-injury duties in a few months. The records of Dr Omifolaji indicate that Ms Lister was coping at work on modified duties and by September 2012 she was ready to attempt filling duties on the line.
11 A Return to Work Plan prepared by Ms Berry dated 1 November 2012, indicated that Ms Lister was able to perform suitable duties including; 24 hour taste testing, collecting samples of products using a light weight trolley, administrative tasks, tidying the sample areas, packing on line 3 or 4, hot room duties involving completing sampling and removal of boxes of pallets for sampling, loading machines and performing fill duties. Tasks excluded involved no lifting over 7.5 kg, no extended repetitive tasks or completing reloading of roles of labels or plastic and lifting boxes into cradles. When giving evidence, Ms Lister told the court that she understood that the aim of the return to work plan was to eventually enable her to return to her pre-injury duties. She said that she tried each of the tasks listed but was unable to perform the packing or filling duties because they aggravated her right shoulder symptoms. At her consultation with Dr Omifolaji on 15 November 2012, she indicated that her employer was co-operative and flexible about her tasks at work. She told the court that between December 2012 and February 2013 she only performed three of the eight tasks identified in the report being: taste testing but that job ended in February for reasons unrelated to her injury; collecting samples which occupied 10 minutes every hour and administrative tasks which could vary depending on the amount involved but on average it would only occupy 15 minutes each hour. Ms Lister told the court that on average she would only be fully occupied for a period of 25 minutes each hour of the 12 hour shift and the balance of the time she “wandered around trying to find something useful to do”. She said on occasions she would clean areas or train others to keep herself busy although those tasks were not specified modified duties that she was required to perform. Ms Lister told the court that she experienced sleep disturbance and was using norspan patches for pain control.
12 Ms Lister also told the court that she was subjected to taunts from other employees about being on modified duties for a prolonged period and her inability to perform certain jobs which caused her to be “upset, depressed and feel totally useless”. At her consultation with Dr Omifolaji on 12 December she expressed her doubts about any further improvement especially in regard to performing the manual tasks required of her and told him that she was appreciative of the support from her employer. She also told him that she was considering re-training in a different field and one that did not require intense physical labour. Ms Lister gave evidence that Mr Evans thought it was a good idea that she resign in the long term as there was no point in performing surgery whilst she continued working. On 14 January 2013, Ms Lister told Dr Omifolaji that she would probably resign from her employment in March if there was no further improvement in order to pursue a different career.
13 A Final Employer Cessation Report dated 15 February 2013 prepared by a new Nabenet Consultant, Ms Billett, indicated that both Dr Omifolaji and Mr Evans were of the opinion that Ms Lister was not expected to regain a capacity to return to her pre-injury duties and on that basis a transition to a New Employment Service for her to obtain alternative employment should be considered by Allianz. Ms Billett reported that Ms Lister was considering a change of occupation to a more sedentary role and had enrolled in a Diploma of Community Services course. Ms Lister gave evidence that she applied to be enrolled in the Diploma course in late January or early February 2013 and successfully enrolled 4 weeks later. The course required her to attend Tafe one day each week which she attended on her day off or applied for the day off from the defendant. She told the court that she discussed her plans with Ms Commandeur on 26 February 2013 in order to keep her employer “in the loop” and ultimately decided to resign in March because she was sick and tired of walking around aimlessly looking for work to do in the knowledge that she would never be able to return to her pre-injury duties. She said that she also resigned on the basis that she required surgery and Mr Evans was not prepared to perform surgery while she was still working. She said that she had “had enough” both physically and mentally and needed to “get out”.
14 Ms Lister gave evidence that she completed her Diploma of Community Services and then commenced a Certificate III Course in Aged Care and Community Services in November 2015. She has since returned to casual work in that area. She told the court that she was not aware that she was entitled to claim weekly payments on her resignation or that she was entitled to claim her retraining costs. She said that following surgery on her shoulder on 25 March 2014 and after completing the appropriate qualifications she has been able to work in Aged Care area but would not be able to return to her pre-injury employment duties.
15 In cross examination, Ms Lister agreed that she had a good rapport with the Nabenet rehabilitation Consultants, Mr Lecchino and Ms Commandeur and that they were helpful and encouraging in the return to work program. She disputed that she had not complained about the lack of suitable tasks provided to her and agreed that her employer had never told her that they would dismiss her. She conceded that if she did not resign in April 2013 she would have kept working on modified duties as she was coping with them and agreed that the subsequent certificate she provided following surgery certified her as being fit to perform the tasks that she was performing prior to her resignation. Ms Lister took issue with the suggestion that she would have been able to continue working on modified duties indefinitely. She told the court that she believed she was on a time restriction and had been told by others that she was only entitled to remain on WorkCover for a limited period. Ms Lister gave evidence that she was never told that she would be able to continue working permanently on full-time modified duties and was never told by Nabenet that they would transfer her to the New Employment Service Program as she was not provided with a copy of the Employer Cessation Report dated 15 February 2013.
16 Mr Lecchino gave evidence that he liaised with Ms Lister, Nabenet and Ms Commandeur throughout the period that Ms Lister returned to work on modified duties. He said that he could not recall Ms Lister complaining to him about her having a lack of work or other employees taunting her. He said that at times when he observed that she was not working he attributed it to her being frustrated by her injury and by being easily distracted by others. He said that at no stage was her job in jeopardy but confirmed that in a conversation with Ms Lister on 26 February 2013, they had discussed her frustration that her injury was not healing and that her rehabilitation not going to plan. During cross examination, he agreed that the aim and purpose of involving Nabenet was to allow for Ms Lister to return to her pre-injury employment duties. He said that he was not aware of the Employer Cessation Report nor did anyone discuss the contents of it with him. Mr Lecchino conceded that ultimately the defendant’s management group ‘may’ have had a discussion with Ms Lister about her future if she remained on modified duties for an indefinite period.
17 Ms Commandeur gave evidence that she commenced in the role of Return to Work Officer with the defendant in August or September 2012. She told the court that she held regular meetings with Mr Lister, Mr Lecchino, Ms Berry and Ms Billett from Nabenet throughout the period Ms Lister was engaged on modified duties until her resignation in April 2013. She told the court that the employer was committed to providing permanent modified duties to Ms Lister and there was no pressure applied on her to cease employment. She said that although Nabenet were ceasing their involvement the defendant would have continued to provide modified duties as they have done with two other employees. Ms Commandeur said that any difficulties Ms Lister was experiencing whilst performing modified duties were discussed in their meetings. She recalled Ms Lister telling her in January 2013 that she was considering engaging in a Tafe course because of the pain she was experiencing and said she could not recall Ms Lister mentioning that it was due to her frustration with the modified duties. In cross examination, she agreed that the aim of the return to work plan was to enable Ms Lister to return to her pre-injury duties. She agreed that by February 2013 it was clear that she would not be able to do so because her medical condition prevented her from performing manual handling tasks.
Medical Evidence
18 The medical records and reports from Dr Omifolaji indicate that Ms Lister first attended for treatment in relation to her right shoulder and right elbow symptoms on 11 January 2006. Dr Omifolaji diagnosed that she was suffering from rotator cuff tendinitis and right tennis elbow. He referred her to Mr Evans who performed a right elbow arthrotomy with tennis elbow repair surgery and subsequently a right ulnar nerve transposition. He noted that she subsequently developed left elbow symptoms consistent with a diagnosis of left tennis elbow and in May 2011 she exacerbated her right rotator cuff tendinitis for which she underwent steroid injections and received physiotherapy treatment. Dr Omifolaji reported that all attempts to gradually build up her work duties failed as her right shoulder pain recurred and that Ms Lister decided to resign in April 2013 believing that employment in a different occupation would help resolve her chronic right shoulder pain. He noted that she underwent arthroscopic sub acromial decompression surgery of the right shoulder joint on 25 March 2014 and a subsequent steroid injection and hydro dilations to the shoulder joint. Dr Omifolaji stated that Ms Lister has permanent work restrictions and is unlikely to be able to increase her work capacity in the future. Dr Omifolaji reported that he supported Ms Lister resigning in order to find other employment that would place less demand on her shoulder joint.
19 Mr Evans reported that he first consulted with Ms Lister in 2006 regarding right upper limb pain and then in 2008 as a result of right elbow pain. He confirmed that he performed an arthrotomy of her right elbow and a repair of the common extensor origin on 2 February 2009 and then a transposition of the ulnar nerve of her right elbow on 15 July 2009. He stated that he also saw her on 30 March 2011 presenting with symptoms consistent with lateral epicondylitis and then on 24 May 2011 complaining of acute pain in the anterior aspect of her right shoulder which a subsequent MRI scan demonstrated she had degenerative changes within the rotator cuff tendon. Mr Evans reported that he administered a hydro dilatation injection on 15 August 2011 which provided temporary relief so a further injection was administered on 21 November 2011. He noted that he next saw her on 12 February 2013, due to ongoing symptoms relating to her right shoulder and at that stage believed she demonstrated clinical features more consistent with cuff tendinopathy pain rather than adhesive capsulitis. He reported that Ms Lister informed him that she was thinking of resigning and retraining for something that carried less demand on her shoulders. He also reported that on 25 March 2014 Ms Lister underwent a right shoulder arthroscopy with sub acromial decompression and bursectomy which was followed up with a further hydro dilatation on 27 May 2014 and cortisone injection on 27 August 2014. Mr Evans opined that when he last saw Ms Lister on 22 October 2014 her condition was continuing to improve and had not yet stabilised.
20 Dr Clayton Thomas, Consultant in Rehabilitation and Pain Medicine assessed Ms Lister on behalf of her lawyers on 20 August 2015. After obtaining a history from her and reviewing the reports of Dr Omifolaji and Mr Evans he opined that Ms Lister sustained sub acromial bursitis on the background of capsulitis to the right shoulder during the course of her employment. He noted that she continued to experience residual symptoms in the right upper limb and had difficulty reaching and lifting through all levels. He opined that her physical restrictions will continue in the foreseeable future and that she does not have a capacity to return to her pre-injury duties. He considered that work in the Aged Care sector was appropriate.
21 The defendant tendered medico-legal reports from Dr Powell, Orthopaedic Surgeon, dated 30 May 2014 and 11 September 2014. He diagnosed that Ms Lister developed right rotator cuff tendinitis and sub acromial bursitis as a result of the incident at work in May 2011 with the injury being exacerbated by repetitive movements at work which may have led to a secondary adhesive capsulitis. He commented that he agreed with a Vocational Assessment Report dated 30 April 2014 (which was not tendered) indicating that Ms Lister would be fit for suitable employment in the retail industry once she recovers from surgery. In his September 2014 report, he opined that Ms Lister had a capacity for work at desk top height in either an administrative or retail capacity and supported ongoing vocational retraining with a view to finding work for her. He did not believe she would have the capacity to return to her pre-injury duties and hours.
Conclusion
22 In order for s 114(2A) to operate, one of the pre-conditions listed in the provision must apply. The defendant submitted that at the relevant time of her resignation, Ms Lister had an incapacity for work as a result of her work related injury and resigned for reasons unrelated to her incapacity. The defendant alleges that she resigned to pursue other career opportunities. Accordingly, it submitted Allianz was entitled to determine not to pay her weekly payments of compensation for the claimed period.
23 The defendant submitted that it would have continued to provide modified duties to Ms Lister and there was no intention by it to terminate her employment on the basis that she could not return to her pre-injury employment duties. It noted that when the court considers the entitlement of Ms Lister to weekly payments it should take into account the objects of the Act, and in particular; to make provision for the effective occupational rehabilitation of injured workers and their early return to work[3]; and, to increase the provision of suitable employment to workers who are injured to enable their early return to work[4]. In the circumstances, the defendant submits that its commitment to provide modified duties on an indefinite basis justified the decision by Allianz not to pay weekly payments to Ms Lister for the claimed period.
[3] S 3(b).
[4] S 3(c).
24 Ms Lister submitted that s 114(2A) does not apply as she did in fact resign for reasons related to her incapacity. It was submitted that she fully participated in the return to work program and made every endeavour to make a gradual return to her pre-injury duties but was unable to do so because of the nature and extent of her injury and symptoms. Ms Lister submitted that notwithstanding the defendant’s best intentions it was unable to provide ‘suitable employment’ and ultimately when it became clear that she would not be able to return to full time pre-injury duties it was unlikely her employment would have remained secure. Accordingly, she submitted that her decision to resign, retrain and explore other suitable employment options was a decision related to her incapacity for employment with the defendant.
25 I accept the correctness of the submissions made on behalf of Ms Lister. I find that she did in fact resign for reasons related to her incapacity. I accept her evidence as being truthful that despite the defendant making its best endeavours to provide her with full time modified duties she was unable to perform all of the tasks required of her and for a large part of her working day she was in ‘reality’ unoccupied. The defendant was unable to make provision for her effective rehabilitation. It was unable to offer her modified duties that would allow her to be fully occupied during her 12 hour shift. Even if the defendant was prepared to continue to provide these duties on an indefinite basis, it would not have satisfied its obligation to provide for her with effective occupational rehabilitation. Ms Lister was performing minimal tasks for a minimal period each hour of her shift. In my opinion, this does not constitute effective occupational rehabilitation as required by the Act.
26 The decision made by Ms Lister to resign was based on the fact that she was frustrated and dissatisfied with the modified duties provided and came to the realisation after consulting her treating doctors that she would be unable to return to her pre-injury duties. It was therefore reasonable and appropriate for her to consider her future employment options. Her resignation was based on her incapacity to return to her pre-injury employment, the failure of her employer to provide effective occupational rehabilitation, the likelihood her employer would not continue to provide modified duties on an indefinite basis, her need to have surgery and her motivation to find suitable employment and a career elsewhere. Accordingly, s 114(2A) has no application.
27 Even assuming that s 114(2A) had application, after considering the objects and purpose of the Act, I would have determined that Ms Lister was entitled to weekly payments for the claimed period. She fully complied with all that was requested of her by her employer and the rehabilitation provider and had participated in the return to work program for a prolonged period. After accepting the medical advice that she would not be able to return to her pre-injury employment she investigated and undertook re-training (at her own expense) and has successfully returned to the workforce in suitable employment. In these circumstances and taking into account the fact that the Act is beneficial legislation, she is entitled to adequate and just compensation during the period of her incapacity.
28 Accordingly, for the reasons given, Ms Lister is entitled to weekly payments for the claimed period.
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