Lolicato v E B Mawson and Sons Pty Ltd
[2021] VCC 587
•19 May 2021
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-02558
| SANTO FRANK JOE LOLICATO | Plaintiff |
| v | |
| E B MAWSON & SONS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 2 March 2021 (via Zoom hearing) | |
DATE OF JUDGMENT: | 19 May 2021 | |
CASE MAY BE CITED AS: | Lolicato v E B Mawson & Sons Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 587 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the right shoulder – sub-paragraph (a) of the definition of “serious injury” – loss of earning capacity damages – pain and suffering conceded
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s328
Cases Cited:De Bono v Victorian WorkCover Authority [2019] VSCA 85; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Harris v DJD Earthmoving [2016] VSCA 188; Richter v Driscoll [2015] VSC 457; [2016] VSCA 142; Cardiff Corporation v Hall [1911] 1 KB 1009
Judgment: Leave granted to the plaintiff to commence a proceeding to recover damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC with Mr S Carson | Kim Bainbridge Legal Service Pty Ltd t/as Garden & Green Lawyers |
| For the Defendant | Mr P B Jens QC with Mr M Clarke | Lander & Rogers |
HIS HONOUR:
Introduction
1Santo Lolicato seeks leave to bring a proceeding for the recovery of damages. To gain leave, he must prove he has a “serious injury” and relies on paragraph (a) of the definition of the expression under the Workplace Injury Rehabilitation and Compensation Act 2013:[1]
“permanent serious impairment or loss of a body function.”
[1] He did rely also on paragraph (c) but that was abandoned during the hearing
2The “body function” is that associated with his right shoulder. As to satisfying the word “serious”, he relies upon the consequences to him of pain and suffering and loss of earning capacity. After the luncheon adjournment on the day of hearing, the defendant conceded Mr Lolicato suffered a “serious injury” in relation to pain and suffering consequence. The application continued in respect of loss of earning capacity consequence.
Circumstances
3Mr Lolicato is now fifty-six. He was born and raised in Swan Hill and still lives there. He is married with adult children. Mr Lolicato is right handed.
4He attended school in Swan Hill, leaving secondary school at seventeen. He then undertook and completed an apprenticeship in fitting and turning.
5After completing his apprenticeship, he worked for about ten years with a business called Saluform Plastics, where he looked after machinery. He left Saluform Plastics and became a boiler attendant with a business called “Ultra Stack”. He worked there for about ten years.
6In 1993, while employed by Ultra Stack, Mr Lolicato was crushed by a forklift truck, injuring his lower back. He was off work for two or more months. When he returned to work, he was given light duties. It was a nasty injury and led to his taking Panadeine Forte until the present day. Ultimately, Ultra Stack ended his employment.
7After Ultra Stack, Mr Lolicato worked on and off in various jobs until in 1998 when, he and his wife opened a business undertaking balloon decorating and events. They did this for about two years.
8In 2000, Mr Lolicato and his wife bought a takeaway business, which they conducted for about fifteen years. They ran this business as well as the balloon decorating business but the latter only for a further twelve months.
9In about 2015, the Lolicatos sold the takeaway business. They were burnt out. The business created personal problems between Mr Lolicato and his wife.
10Mr Lolicato then took a six-month summer season job with Murray Downs Golf Club, mowing the fairways of the golf course.
11In about May 2016, Mr Lolicato started working for the defendant as a part-time truck driver. The job provided as much work as Mr Lolicato wanted at that stage. He wanted to break from working seven days a week.
12The defendant has quarries. It provides raw materials and concrete to the building industry. Mr Lolicato drove a concrete truck. Apart from driving, Mr Lolicato described his work:[2]
“My work at Mawson involved pushing concrete down a chute with my right arm. Sometime around the start of 2017 I began working on a truck which had some difficulties with the rubber flap on the chute. As a result, I had to repetitively push the flap open to stop the concrete overflowing.”
[2] Affidavit sworn 17 December 2019 at paragraph [9]
13In about February 2017, Mr Lolicato started feeling pain in his right shoulder. At that time, he had been very busy, working seven to eight hours a day. Hoping the pain would lessen, he continued working. It did not lessen but got worse. By about June 2017, he told his boss of the injury and saw his general practitioner, Dr Stewart Booth.
14At the time of the injury, Mr Lolicato was working a basic 25 hours a week. With overtime, he usually worked five hours per day over six days per week. However, his hours could reach as many as 40.
15By November 2017, he stopped working. Dr Booth arranged ultrasound scans. These occurred on 24 November 2017 and revealed a full thickness tear of the supraspinatus with calcium deposits in the supraspinatus and subscapularis.
16In January 2018, Mr Lolicato lodged a claim for compensation, which was accepted. The defendant placed him on light duties with reduced hours of work.
17Dr Booth referred Mr Lolicato to an orthopaedic surgeon, Mr Simon Holland. He saw Mr Holland on 29 March 2018.
18On 5 April 2018, MRI scans revealed:[3]
“… full thickness tearing of supraspinatus with tendinopathy of subscapularis, a degenerative change in his glenohumeral joint and a[n] intra-articular loose body. His biceps is reported as being in good condition however, I note that I can see changes about this.”
[3] Report of Simon Holland dated 16 April 2018
19On 5 July 2018, Mr Holland performed supraspinatus repair, biceps tenodesis and acromioclavicular joint excisional arthropathy. After which, Mr Lolicato attended a physiotherapist.
20Up to a point, the surgery was beneficial:[4]
“The surgery improved the sharp pain that I was experiencing on movement. However, I continued to suffer a dull aching and continuous pain which went up my neck and down to my little finger.”
[4] Affidavit sworn 17 December 2019 at paragraph [16]
21Despite the improvement, the condition of his shoulder remained poor.
22On 20 August 2018, Mr Lolicato started a graduated return to work, reaching four hours per day, five days per week. He was doing light cleaning and painting, while favouring his left arm.
23On 17 October 2018, Mr Holland performed a hydrodilatation. Unfortunately, Mr Lolicato found this procedure worsened his condition. The level of pain remained the same but his movements were more restricted.
24When examined on 31 January 2019, Mr Lolicato told Mr Holland:[5]
“The patient reports that his pain about his shoulder is improving and his sleep has improved so that he can now sleep in a bed. Overhead use of his arm such as reaching his hair is difficult. Washing himself is difficult and dressing is trouble free. He is managing modified duties at work.”
[5] Report dated 31 January 2019
25As to the results of his examination, Mr Holland said:
“… his right shoulder wounds are healing well. There is moderate anterior glenohumeral joint line tenderness and no other focal tenderness about this shoulder. His active forward elevation is to 80o which can be passively improved to 90o with external rotation to 20o and internal rotation to his waist. There is 20o of external rotation in abduction and 30o of internal rotation in abduction. His rotator cuff, biceps and deltoid are all functioning well.”
26Now, Mr Holland considered Mr Lolicato had developed adhesive capsulitis after the operation. His suggestion of a second hydrodilatation or further surgery was rejected:[6]
“… I did not want to undergo further treatment. I felt that at least I had some movement in my arm and did not want to lose it.”
[6] Affidavit sworn 17 December 2019 at paragraph [19]
27The realisation of his predicament struck Mr Lolicato badly. He stopped working for eight to ten weeks. He cried frequently. He found he could not leave his home. Only through the help of his family, friends and Dr Booth was he able to return to work in March or April 2019.
28Until his employment ended, Mr Lolicato was able to increase the hours of work to five hours per day for three days a week. His duties remained light.
29During 2019 or 2020, a cousin of Mr Lolicato and that person’s grandchildren died in a house fire. At the time, this caused Mr Lolicato considerable distress which lasted a “couple” of months.
30In December 2019, Mr Lolicato suffered a coronary occlusion. A stent was inserted. His recovery was rapid, in that he returned to work within weeks.
31Despite the availability of work which Mr Lolicato could have done, in February 2020, the defendant ended his employment. At that time, he was working 10 to 15 hours a week. His duties remained light, consisting of cleaning windows, offices and toilets and sweeping floors. He became so bored with the cleaning work that he learnt to drive a front-end loader and obtained a licence to do so. Absent the termination of that employment, Mr Lolicato would have continued doing that light work for as long as he could. Part of this confidence lay with the reasonableness of his manager:[7]
“… the flexibility I had with my boss was great. He could see when I was getting upset and sore If I’d done anything or aggravated my arm in any way, because I did try and do other things.”
[7] Transcript at p 24
32In January 2021, his weekly payments of compensation ended.
33Owing to the failure of earlier surgical procedures, Mr Lolicato does not now want any further procedures.
34Assuming his injury occurred on 30 June 2017, then three years before are:
(a) 2016-2017: the defendant - $52,870;
(b) 2015-2016: the defendant, a golf club and interest - $18,967;
(c) 2014-2015: rental income - $4,346.
35For the three years after:
(a) 2017-2018: the defendant - $45,124.
(b) 2018-2019: the defendant - $34,430.
(c) 209-2020: the defendant and VWA - $32,131.
Jayden Lolicato
36Jayden Lolicato is an adult son of Mr Lolicato. He swore an affidavit in this application. His father lives with him and another brother. Before suffering the injury to his right shoulder, Jayden saw his father as an active, sociable and busy person, working full-time hours. Interestingly, Mr Lolicato cooked for all of them and carried out all household chores. With cooking, Jayden must now cut and chop the vegetables. It embarrasses Mr Lolicato that he needs this help.
37During 2017, it became clear his father was struggling with the heavier chores and his sons had to assume more of the tasks. This has remained so despite operations to his shoulder.
38Once he helped his sons by working on their cars with them. Now:[8]
“… He will try but is very limited in what he can do and will end up in obvious pain. This is upsetting and frustrating for all concerned.”
[8] Affidavit sworn 25 February 2021 at paragraph [9]
39Since the injury, Mr Lolicato has not fished where previously he was an active fisherman. He does not camp anymore, which was something he enjoyed. He is less active now in other pastimes – motorcycling, shooting, swimming and playing with their dogs.
40Mr Lolicato’s social circle has narrowed since the injury except for a “couple of close mates”. Unlike before the injury, “he keeps to himself much more and lacks enthusiasm to go out and/or be in a social environment”.
Vince Caruso
41Vince Caruso is one of Mr Lolicato’s “close mates”[9]. Having known each other for many years, they would contact each in person or by phone a couple of times each week. They would fish and camp together.
[9] Affidavit sworn 24 February 2021
42Since the injury, fishing occurs rarely. When it does, Mr Caruso must cast the larger fishing rods for Mr Lolicato. It is a very long time since they went camping for it is “all too hard” for Mr Lolicato.
Current position
43Mr Lolicato has separated from his wife and she now lives in Adelaide. He lives with his two adults sons in Tyntynder South, which is north-west of Swan Hill.
44He is currently unemployed. Since the end of his employment with the defendant, he has searched for work in Swan Hill without success. He has given up hope of finding work in Swan Hill. He believes his best chance lies in self-employment. He has a history of such employment but realises his limitations due to his shoulder, computer skills and literacy.
45At least as at 24 February 2021, he receives no income.
Pain
46His shoulder is always painful. The level of pain varies daily. At times, it is severe. It is worsened by activity. The pain spreads from his shoulder along his arm to his little finger. Apart from pain, he also experiences numbness from his shoulder to his little finger.
47When the pain is severe, it interferes with his sleep. If he sleeps on his right shoulder, he wakes with numbness and pins and needles.
48He still takes copious quantities of Panadeine Forte, up to eight tablets a day. Admittedly, he has taken this medicine at this level for many years, dating back to his back injury.
Treatment
49There is no active treatment. Mr Lolicato does exercises at home.
50Before his injury, Mr Lolicato worked 25 hours a week but, regularly, obtained overtime so that he worked up to eight or nine hours per day. Regularly, he earned “close enough” to $1,000 net per week.[10]
[10] Affidavit sworn 24 February 2021 at paragraph [10]
Medical evidence
Dr Booth
51Dr Stewart Booth has been Mr Lolicato’s general practitioner since 1995. In the most recent of his reports,[11] he diagnoses adhesive capsulitis.
[11] Dated 16 February 2021.
52As to prognosis:
“I feel it is quite likely that he will require further surgical intervention for the shoulder. In view of the degenerative changes and restricted mobility eventually leading to shoulder joint replacement.”
53When Dr Booth wrote that report, he believed Mr Lolicato was still employed by the defendant. His view of Mr Lolicato’s capacity for work:
“He has some limited work capacity including being able to drive. He is unable to carry out manual work involving use of his right shoulder and I would point out that the patient is right-handed. I understand he is currently performing some sedentary type work in his former workplace including desk-based activities such as data entry, telephone answering, computer batching and minor yard maintenance.”
Mr Howard
54I have already referred to Mr Howard. During 2018 and 2019, he wrote three letters to Dr Booth. In the last, dated 31 January 2019, he wrote:
“Clinically, this patient has post operative adhesive capsulitis which has not made a lot of improvement since his first hydrodilatation. I have suggested another hydrodilatation and continue to work with physiotherapy. The patient reports that he is concerned about his troubles after his last hydrodilatation … .”
Dr Doig
55Dr Graeme Doig specialises in general orthopaedics and trauma. At the request of an authorised agent, he examined Mr Lolicato on 11 May 2019. He undertook an impairment assessment of the right shoulder and associated scarring.
56Dr Doig diagnosed a soft tissue injury to the right shoulder with a rotator cuff tear. There had been surgery but the outcome was poor, leaving chronic pain and restriction of movement.
57For the purposes of the assessment, Dr Doig measured the latter: flexion – 80 degrees; extension – 10 degrees; abduction – 80 degrees; adduction – 20 degrees; external rotation – 60 degrees, and internal rotation – 10 degrees. Putting aside the degrees of impairment of the upper extremity and the whole person overall, these are very significant restrictions of the various movements of the shoulder. The presence of fine scars at the front of the shoulder added nothing to the impairment assessment.
58His prognosis was guarded. Separately, he placed a 5-kilogram lifting, pushing and pulling restriction at or below waist height and could not use his right arm overhead.
Mr Hooper
59Mr Jonathan Hooper is an orthopaedic surgeon. On 5 December 2020, he examined Mr Lolicato at the request of his solicitors.[12]
[12] Report dated 8 December 2020
60Mr Hooper examined both shoulders. The uninjured left had a normal range of movement while the right had a significantly decreased range:
“… He only has 90 degrees of flexion and 90 degrees of abduction. He cannot get his hand into his hip pocket and external rotation is limited to 30 degrees. There is pain on extremes and passive movement only slightly increases the range but it is painful. He is generally weaker to grip on the right-hand side and he does have altered sensation over the C8 dermatome distribution of the little finger on the right-hand side.”
61Mr Hooper read a recent MRI report showing a partial tear on the bursal surface of supraspinatus, complete rupture of the biceps tendon on that side and early chondral damage to the humeral head.
62The diagnosis was tendinopathy and capsulitis. The condition was stable, meaning in this case, it will neither worsen nor improve greatly in the future. He did not recommend further surgical treatment.
63Mr Hooper saw truck driving as excluded or any work involving heavy or overhead activities.
Dr Ryan
64Dr Simone Ryan is a consultant occupational physician. She has examined Mr Lolicato on 24 September 2019 and 9 December 2020 at the request of an authorised agent. From the contents of her report, Dr Ryan appears as a sympathetic examiner. Certainly, Mr Lolicato found her easy to talk to.
65To Dr Ryan, Mr Lolicato suffered initially from rotator cuff pathology and, following arthroscopic repair, developed adhesive capsulitis.
66With his right shoulder, her examination revealed a grossly restricted range of motion: flexion – 90 degrees; abduction – 80 degrees, and extension – 5 degrees. These ranges approximated her measurements in 2019. Dr Ryan noted his right shoulder was mildly dropped and there was obvious supraspinatus muscle wasting. For completeness, she found his range of motion of his cervical spine was full, active and pain-free.
67Dr Ryan considered Mr Lolicato could perform some benchwork, sitting or standing at the bench with his elbows tucked into his side. He could drive a truck without any manual labouring component which usually accompanies such driving.
68In an earlier report, Dr Ryan examined six job options nominated by Acumen Health as potentially suitable for Mr Lolicato: sales assistant (recreation and sporting goods); courier/delivery driver – light items; forklift driver; weighbridge operator; takeaway/café manager, and earthmoving plant operator.
69Dr Ryan discussed these, and other options, with Mr Lolicato:
(a) working as a shop assistant, she felt he would probably be suitable physically to do such work. Mr Lolicato pointed to his psychological barrier – “… he could not possibly confront with people or anyone that was making an enquiry, complaining about something they had bought or needed guidance. He stated at the moment the way his mood is, he does not feel like he could mix with people from a work viewpoint”;[13]
(b) as a forklift driver, although Mr Lolicato told Dr Ryan he was “probably okay” with forklift driving, she hesitated, saying it would be beneficial if he had a sustainable functional capacity evaluation with an exercise physiologist. She emphasised the “sustainable” aspect of such an evaluation to see if his right arm tolerates the work over a period of time;
(c) as a weighbridge operator, it was suitable provided he need not reach out of the weighbridge with his right arm. As she had said in an earlier report, this would place him within the office and reaching out to passing trucks with his left arm. Bearing those restrictions in mind, she recommended a worksite review;
(d) with a takeaway/café manager, despite Mr Lolicato’s tentative acceptance, Dr Ryan considered it unsuitable if there were any repetitive manual labour components of the work;
(e) as to courier of light items, to Mr Lolicato, it was unsuitable because of his mood. Previously, Dr Ryan had considered it unsuitable. At the second interview, she raised pathology collection, which elicited some interest from him and was not rejected on the ground of mood;
(f) as to earthmoving plant operator, as with a forklift driver, Dr Ryan drew back from saying this was suitable, again recommending a durable or sustainable functional capacity evaluation to test the required use of the right upper limb in a repetitive and/or heavy fashion.
[13] At p 8
70Dr Ryan explored other jobs. Truck driving could be suitable if there was a satisfactory means for Mr Lolicato to enter the truck’s cabin. This may involve placing other handles on the outside of the cabin to enable him to enter it. The same reservation applied to working with a tractor. Working alone appealed to Mr Lolicato but his ability to enter the cabin of a tractor was uncertain.
71After her first interview, and reaffirmed in a further report, Dr Ryan said:[14]
“Ultimately, my original opinion still stands whereby Mr Lolicato has very limited function of his troubled right shoulder where he could undertake some bench work sitting or standing at a bench and/or a desk with his elbows tucked into his side.”
[14] Supplementary report dated 21 April 2020 at p 4
72If any of these options proved suitable, including some benchwork, Dr Ryan felt Mr Lolicato could work 30 hours per week.
Dr Barberis
73Louise Barberis is an occupational physician. At the request of an authorised agent, she examined Mr Lolicato on 19 September 2018 and 27 March 2019.
74Her examination revealed a normal cervical spine. His right shoulder was mildly dropped. There was wasting of the supraspinatus muscles. He was tender anterolaterally. The range of his shoulder movements were moderately restricted: flexion and abduction to 85 degrees (the left arm attained 170 degrees); internal rotation to reach the right hip (the left reached the scapula); external rotation of 20 degrees (the left arm attained 60 degrees), and extension was 10 degrees, consistent with persisting adhesive capsulitis. There had been some improvement in these movements since her initial examination.
75Relying on the findings of the arthroscopy, Dr Barberis diagnosed a supraspinatus full thickness tear, biceps tendinopathy and AC joint degeneration. However, after the surgery, he developed adhesive capsulitis. She felt his work duties aggravated existing degenerative changes to the shoulder.
76Dr Barberis considered Mr Lolicato could not return to his pre-injury duties but had the capacity to perform light sedentary duties (for example office work), light duties around the yard or limited driving of an automatic vehicle on sealed roads. She placed restrictions on what he could do: not lifting more than one or two kilograms with his right arm; avoid reaching with that arm, and avoid using it above shoulder height. He should use the arm at about waist height. Obeying these restrictions, Mr Lolicato could work four hours a day for five days a week. Whether he could return to pre-injury duties was uncertain as it may depend on the satisfactory outcomes of further hydrodilatation or surgery. Something Mr Lolicato is not prepared to undertake.
77Dr Barberis thought his current treatment was appropriate. This consisted of twice weekly physiotherapy and hydrotherapy, self-managed exercises and up to six Panadeine tablets daily. She noted these tablets covered the pain from the shoulder and lower back.
Legal considerations
78To establish the loss of earning capacity consequence, Mr Lolicato must establish:
(a) his loss of earning capacity consequence, when judged by comparison with other cases in the range of possible impairments or losses of a body function, is fairly described as being more than significant or marked and as being at least very considerable (the narrative test); and
(b) he suffered a loss of earning capacity of 40 per centum or more, measured as set out in s325(2)(f); and
(c) he would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.[15]
[15] De Bono v Victorian WorkCover Authority [2019] VSCA 85 at paragraph [47]
79It is worthwhile setting out s325(2)(f):
“for the purposes of paragraph (e)(i), a worker’s loss of earning capacity is to be measured by comparing—
(i) the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii) the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred.”
80The “date” is the date of the hearing for leave.
81It seemed common ground that weekly payments of compensation do not fall within that paragraph or the other paragraphs of the sub-section.
82Further, for the purposes of loss of earning capacity, I must consider the issue of rehabilitation or retraining as set out in s325(2)(g) of the Act.
83The expression “suitable employment” is defined in s3. In part, the definition reads:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to the following—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker’s pre-injury employment;
(iii) the worker’s age, education, skills and work experience;
(iv) the worker’s place of residence;
(v) any plan or document prepared as part of the return to work planning process;
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b) regardless of whether—
(i) the work or the employment is available; or
(ii) the work or employment is of a type or nature that is generally available in the employment market;
… .”
84Mr Lolicato relied on paragraphs of the judgment in Harris v DJD Earthmoving Pty Ltd.[16] However, I found they were directed towards the adequacy of the reasons of the trial judge in light of the evidence and not setting out the factors relevant to whether there is a “serious injury” from the perspective of the loss of earning consequence.
[16] [2016] VSCA 188 at paragraph [35] and ff
85The defendant referred to a paragraph in Barwon Spinners & Anor v Podolak[17] dealing with the onus of proof.
[17] (2005) 14 VR 622 at paragraph [70]
86Although neither party referred me to Richter v Driscoll,[18] the judgments examine the concepts of “suitable employment” and “no current work capacity” and the misapprehension as to what Barwon Spinners decided about physical capacity.
[18] [2015] VSC 457; [2016] VSCA 142
87In the joint judgment, their Honours referred to the judgment of Buckley LJ and Fletcher Moulton LJ in Cardiff Corporation v Hall[19] as to the saleability or merchantability of a worker’s labour, and then said:[20]
“… Rather, they focus upon an assessment of the inhibitions which exist upon the worker’s ability to work in employment. ‘Employment’ is a relationship in which a prospective employee must have something—a capacity to work in employment—to sell. A prospective employer will not buy if the entirety of the circumstances personal to the worker, as outlined in these reasons, lead the employer to conclude that the worker has nothing to sell.”
[19] [1911] 1 KB 1009
[20] At paragraph [97]
Discussion
Loss of earning capacity
88Mr Lolicato’s position was that he had no current work capacity, and that is permanent.
89Reading his reports, Dr Booth strikes me as an objective practitioner. Whether he equated Mr Lolicato’s capacity for work to what he was doing for the defendant is unknown. He did exclude all manual labour involving the right arm. Presumably, he did not regard light cleaning duties as manual labour. He included driving within his capacity. Since Mr Lolicato drives a motor vehicle and favours his left arm, this does not tell me anything of use.
90I have described Mr Lolicato’s physical incapacities as well as his pre-injury employment. His right shoulder is grossly impaired. He is incapacitated from performing his pre-injury employment. He is fifty-six. His formal education is not as limited as many appearing in this Court: he left secondary school at seventeen and completed an apprenticeship. He says he is a keen worker and his long and consistent history of employment, before and after his serious back injury in 1993 and this injury in 2017, clearly supports that view.
91Although qualified as a fitter and turner, Mr Lolicato has not worked in that capacity for many years. After his back injury, he performed light duties before buying two businesses and becoming self-employed. The work of the first business was not physically taxing. The second business involved him mainly cooking the food which his business sold. Generally, working as a cook involves prolonged standing, bending and use of arms. I daresay that was the case with Mr Lolicato for after fifteen years he was “burnt out”. After selling the business, he worked on a golf course before obtaining a part-time job with the defendant. It was part-time because that was how Mr Lolicato wanted it. However, out of loyalty to the defendant as his employer, he worked beyond his part-time hours (25 per week) through overtime.
92Mr Lolicato has always resided in or near to Swan Hill and currently resides with his adult sons in a town not far from Swan Hill.
93No return to work plan was tendered. I am unaware whether any occupational rehabilitation services has been offered to him.
94Mr Lolicato would like to return to work. He was working until dismissed by the defendant. He has searched for work and found nothing. He has a current forklift licence, which he renewed this licence in 2020, in the hope of finding employment as a forklift driver. His ability to drive a forklift truck depends on the newness of the truck, the smoothness of the floor on which it is driven and the lack of associated manual tasks. His willingness to try is qualified. This is the attitude of Dr Ryan. She would require a sustained examination of any specific job by an exercise physiologist before suitability could be decided. There is too much uncertainty about this job for it to be considered suitable for Mr Lolicato.
95Mr Lolicato has not driven a truck since 2017. With large trucks, he cannot raise himself into the cabin. Whether there is a prospective employer willing to modify a truck to enable him to enter it is speculative. He now drives a Toyota Hilux utility with a manual transmission. It is a 2000 model. Using his left hand to change gears, he can drive for hours on end. It is disturbing that he relies on his left arm to drive his utility. For a large truck, one would expect an ability to use both arms without qualification.
96Dr Ryan examined a number of potential jobs. For a shop assistant, Mr Lolicato’s objection lay with his mood. He is moody because of the pain from his shoulder.
97There are many forms of the work of shop assistants. His knowledge of the physical side of the work of a sales assistant derives from his balloon business. That work comprised receiving orders from customers, selecting products to fill the orders, visiting venues to set up the products and setting up the products. These tasks involved a “fair bit” of physical activity.[21]
[21] Transcript at p 44
98One might not describe the work of his balloon business as equating to the work of all shop assistants; however, the latter would entail the use of both upper limbs constantly. It may involve lifting and reaching, using both limbs. The repetitive use of his right arm causes aching. He gave the example of the simple act of cutting potatoes. By the time he cut the third potato his arm ached. Mr Lolicato could cope but for a very limited period. It is this very limited duration which excludes Mr Lolicato from undertaking the job of shop assistant in any of its configurations.
99As to forklift driving, Mr Lolicato is concerned about safety and doubts his reliability. He knows the work of a forklift driver. From his experience, there are other activities expected of a forklift driver involving pushing and lifting pallets. He could not do these acts.
100At first blush, the work of a pathology collector is within his physical capacities. However, as far as Mr Lolicato is aware, there is no pathology collection job in Swan Hill because of the limited hospital and medical facilities. As he colourfully put it, the “girls” do it, by which he meant the female workers in such facilities.
101Mr Lolicato understands courier work through his earlier experience. The weight of items can vary between one and twenty kilograms. Although he could manage one-kilogram items, he could not manage heavier items. Dr Barberis recommended he lift no more than one or two kilograms with his right arm. I suppose items of those weights could be lifted with his left arm. However, any item requiring both arms to lift and carry would tax him. This type of work is unlikely to be suitable for Mr Lolicato.
102Dr Ryan reads as a cautious and fair practitioner. Her caution emerges in her evaluation of potential jobs. Most require some form of worksite evaluation.
103As a weighbridge operator, I cannot say whether he would be able to carry out the functions of the job while avoiding the use of his right hand.
104As at the date of hearing, I consider Mr Lolicato is capable of performing the tasks and working the hours he worked when his employment ended. Judging from his evidence, fifteen hours a week was the most he could work. His ability to work those hours fluctuated. From time to time, he asked his manager for permission to leave work early. Since his manager understood his predicament, permission was invariably granted. I do not accept he could work at this job or any other for more than 15 hours per week. He earned about $23 per hour.
105From Mr Lolicato’s description of his tasks, they were assembled to enable him to continue working. The job was a response to the effects of his injury. It was not a normal job within the defendant or generally.
106Ignoring the injury to his back, the injury to the right shoulder has left Mr Lolicato with very little physical capacity for work. In terms of the saleability or merchantability of his labour, almost nothing remains.
107The evidence of Mr Lolicato’s earnings for three years before and three years after the injury is unsatisfactory. It is largely contained in a single-page document entitled “Plaintiff’s summary of income”. The figures for the years after the injury include weekly payments of compensation, which should be excluded. One of the year’s gross income includes interest while another consists of rental income. Neither is “income from personal exertion”. For the gross income in the three years following the injury, the figures include weekly payments of compensation, which should not be included. Since I do not know the amount of those payments, those figures are useless.
108The figure for 2016-2017 is the best guide to his gross income before the injury. It corresponds with Mr Lolicato’s belief as to his gross earnings: $50,000 per year before the injury from his employment with the defendant.
109The figures after the injury are not useful. The best figure comes from his evidence. Taking it at its highest from the defendant’s perspective, it is 15 hours per week at $23 per hour or $17,940 per annum. $17,940 represents 34 per cent of $52,870.
110I am satisfied Mr Lolicato has suffered a loss of earning capacity of 40 per centum or more, as measured in s325(2)(f), and he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per centum or more.
Conclusion
111I will grant Mr Lolicato leave to commence a proceeding to recover damages for loss of earning capacity.
112I will hear the parties on the form of my order and the question of costs.
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