Ly v VWA

[2017] VCC 1330

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CI-17-01083

Y-VAN LY	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

---

JUDGE:	DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	21 & 22 August 2017
DATE OF JUDGMENT:	19 September 2017
CASE MAY BE CITED AS:	Ly v VWA
MEDIUM NEUTRAL CITATION:	[2017] VCC 1330

REASONS FOR JUDGMENT
---

Subject:  Accident Compensation
Catchwords:            Serious injury; course of employment; bilateral shoulder injuries; back
  injury; causation; calculation of pecuniary loss; capacity for suitable
  employment
Legislation Cited:     Workplace Injury Rehabilitation & Compensation Act 2013 s.325 & 335
Cases Cited:            Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622;  Petkovski
  v Galletti [1994] 1 VR 436;  A.G. Staff Pty Limited v Filipowicz  & Arnold
  Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60;  Peak Engineering &
  Anor v McKenzie [2014] VSCA 67

Judgment:                 Leave granted to the plaintiff to commence proceedings in respect of both pecuniary loss and pain and suffering damages.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. D. Clements QC with Ms J. Frederico	Zaparas Lawyers
For the Defendant	Mr B. McKenzie	IDP Lawyers

HIS HONOUR:

Introduction

1 Ms Y-Van Ly is presently aged 61 and seeks leave of the court in accordance with section 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to commence an action for damages on the basis that she has suffered a serious injury as defined in section 325 of the Act. She relies upon paragraph (a) of the definition of serious injury and claims that she has suffered permanent serious impairment or loss of a body function in the course of her employment with her present employer, Australian Comfort Group Holdings Pty Ltd (“the employer”).

2       Mr Clements QC, who appeared with Ms Frederico on behalf of the plaintiff, nominated both shoulders, alternatively either shoulder, and the back as the relevant body functions said to be relevantly lost or impaired for the purposes of the statutory definition. 

3       In opening the case Mr Clements QC advised me that the plaintiff had been working as a full-time sewing machinist for the employer since 2007, and had sustained injuries to both shoulders and her back over the whole of that period.  I was then informed by Mr McKenzie, who appeared on behalf of the defendant, that the period of employment with the employer in fact commenced on 1 April 2011, and that the plaintiff’s employment prior to that date had been with a different employer at the same factory.  Ultimately there was no dispute on this issue between the parties.

4       Ms Ly is still employed by the defendant, albeit on restricted duties and for limited hours.  She had initially lodged a claim for compensation in respect of her back injury and the right shoulder in July 2015, and this had been accepted.  She underwent right shoulder surgery in November 2015 and after some three months off work she returned to light duties on very restricted hours in February 2016.  She completed another claim form in respect of the left shoulder on 26 September 2016.  Liability for this condition was also accepted by the employer.

5       The plaintiff has continued since February 2016 to work modified duties in accordance with various return to work proposals.  She is currently working 18 hours per week on those duties and has managed to work for some months at 21 hours before medical advice caused her to reduce those hours of work to the present level.

6       The parties are in agreement that the plaintiff would be entitled to leave in respect of pecuniary loss if she is able to satisfy me that the extent of her capacity is to less than 23 hours per week.  Should she not prove such a limitation the parties agree that part of the application would fail.

7       The plaintiff alternatively seeks leave in respect of pain and suffering damages should she not succeed in relation to pecuniary loss.

8       The defendant identified the issues as being the extent of the plaintiff’s permanent capacity for suitable employment, the relevant consequences flowing from each of the claimed injuries, and finally an issue in relation to the causation of the back injury.

9       The plaintiff was the only witness required for cross-examination and gave evidence with the assistance of a professional Vietnamese interpreter.

The lay evidence

10      Ms Ly relied upon three affidavits sworn 6 September 2016, 16 August 2017 and 22 August 2017.[1]  It is helpful to set out in summary the relevant matters from those affidavits.  From the 2016 affidavit I regarded the following matters as relevant:

[1]Exhibit A, p.11-20.6

·    Ms Ly is a married woman with three adult children.

·    She left school after Year 8 and did not work full-time in her native Vietnam.

·    She came to Australia in 1985 with her husband and one child, and spent several years raising her family without entering the workforce, although she did some sewing from home.

·    In January 2007 she commenced employment as a sewing machinist working for an employer known as “Sleepmaker” initially at a factory in Campbellfield.  In 2010 her then employer moved to a factory in Deer Park.

·    She described doing heavy work lifting rolls of fabric above shoulder height, pulling fabric down to stretch it over a wooden frame on a repetitive basis.  She described her duties as requiring a lot of bending and sitting in a position where she was bending forward operating a sewing machine.

·    She was working under pressure and described her supervisor in 2010 asking her to increase her level of production.  She received very little manual handling training.

·    She is right arm dominant and suffered a back condition in 1998 that resulted in surgery which she described as a laminectomy.

·    She sustained injuries to her right and left arms, right and left shoulders, her back and left leg in employment.

·    She described medical treatment in 2015, including surgery performed on her right shoulder and noted making a WorkCover claim she believed in July 2015. 

·    She described working 21 hours per week on light duties and believed she was unable to engage in full-time employment.

·    She referred to a number of pain and suffering consequences in her 2016 affidavit, mainly involving domestic activity, and an inability to resume swimming.

·    She was at that time attending hydrotherapy and walking for exercise when she was not at work.

·    She also described difficulties in sleeping and referred to constant pain in her arms, shoulders and back. She was at that stage taking Panadeine Forte, minimum four per day and Panadol Osteo three per day which she was alternating on a daily basis.

·    The second and third affidavits were sworn shortly prior to the hearing.

11      In the plaintiff’s second affidavit I regarded the following matters as relevant to my determination:

·    The plaintiff was referred to Mr Bittar, neurosurgeon, and underwent an S1 nerve root block which helped her left leg pain.  This was in January 2016.

·    In April and May 2016 she had further treatment on her right shoulder involving an injection, acupuncture and cupping. 

·    On 9 January 2017 she had a further ultrasound on her right shoulder showing complete rupture of the right biceps tendon and supraspinatus tendon.  She was then referred to Dr Le, a rheumatologist, who arranged an MRI of her spine in late March 2017, and referred her for an epidural injection which helped her low back for a short time.  This injection was in June 2017.

·    She had reduced her working hours to 18 hours per week as her condition had deteriorated and she was having difficulty coping at work.  She could not lift anything heavy or work above shoulder height.

·    She was working three and a half hours per day and felt pain and tiredness in her back and shoulders after work.  She would go to the pool each day for hydrotherapy which would relieve the pain and tightness in her back.

·    She continued to have physiotherapy, at that time once per week, directed to both her shoulders and back.

·    In 2016 she holidayed in Vietnam and had difficulty with her back on the flight.

·    The back pain varied in intensity up to a level of seven or eight out of ten.  The right shoulder would get up to eight out of ten and the left shoulder six out of ten.  She had numbness and pain in her left calf and pain in both heels which she believes was related to her back.

·    Her standing tolerance was 45 minutes with sitting varying between 30 minutes and an hour.  She would regularly move between sitting and standing whilst at work to reduce pain.

·    She described taking a lot of medication being “four to six Panadeine Forte per day, six Panadol Osteo per day and two Crampeze per day.”[2]

[2]Exhibit A, p. 19[14]

12      The affidavit further described difficulties with personal care related to her right shoulder and left arm.

13      From the final affidavit sworn 22 August 2017 I noted the following matters:

·    Ms Ly described constant pain in her back, worsening with activity such as standing or sitting for lengthy periods.  Bending and heavy lifting also aggravated the back pain.  She described her back as being particularly stiff in the morning and by the time she finished work it was stiff again prior to the hydrotherapy.

·    In addition to hydrotherapy she would usually lie down at home and rest to further relieve the pain.  She would then attend to household chores.

·    The pain in her left calf and both heels was present daily, radiating from the left thigh to the calf and foot.  Sometimes her leg would give way.  It would come on after she had been standing for some time or was tired.

·    She had constant pain in her right shoulder aggravated by activities such as reaching, carrying weights and repetitive movements of the right arm, such as pushing or pulling.  She could not use her right arm at or above shoulder or head height because of increased pain.

·    She described similar restrictions with the left shoulder.

·    Her sleep was impacted by pain.  She referred to pain in both the back and shoulders.

·    She believed the pain in her back and shoulders had affected her memory, concentration and decision making.  She also believed the medication contributed to this.

·    She continued to see her general practitioner, Dr Phan.

·    She had difficulty with cooking and entertaining, referring to weakness in her dominant right arm.

·    She had previously enjoyed swimming and would swim about three times a week.  She now only goes to the pool to do pain relieving exercises.  This was related to her shoulder difficulties.

·    Her social life was also impacted by her back injury, particularly with walking for long periods. 

·    Her domestic activities such as vacuuming and gardening were impacted by her back pain.  Pushing and pulling activities aggravated her shoulder pain, as did hanging washing.

·    She deposed to having eight weeks on light duties due to right shoulder pain in approximately 2011.

·    In September 2014 she felt pain in her left leg when lifting rolls of cloth.  She believes this was treated by a nerve block injection, although she could not recall it.  She subsequently developed numbness in her left foot and a pulling type of pain from her left leg into her back.

·    In early 2015 she commenced having pain in her right shoulder at work when lifting rolls of cloth and a wooden tray.  During that year she was assisted by colleagues with heavy lifting, but later reported the incident.

·    Her left shoulder pain came on gradually at about the same time as the right shoulder. 

14      When the plaintiff was cross-examined I noted the following matters as relevant:

·    Ms Ly had told doctors that she first had problems with her right shoulder in 2011, but stated in her affidavit it was 2015.  She then agreed with a medical entry by Dr Phan on 2 April 2007 noting a history of “longstanding R shoulder pain.”[3]

[3]Transcript (“T”) 24, Line (“L”) 3 to T 25, L 20 & Exhibit 1, p.42

·    Ms Ly agreed with further entries in medical records showing complaints related to her shoulders on 15 May 2008, 5 June 2008, 30 June 2008, and 7 July 2008.[4]

[4]T 26, L 5 to T 27, L 8 & Exhibit 1, p.38

·    She could not recall being sent for an ultrasound on her right shoulder on 7 July 2008, but agreed it was possible.[5]

[5]T 27, L 31 to T 28, L 15 & Exhibit 2

·    Dr Phan had been her treating doctor since 2004 and continues to treat her.[6]

[6]T 29, L 21-23

·    She agreed that she had a problem with her right wrist from turning the machine.  She agreed that she had told an examining doctor that at the end of the day her hands feel stiff.[7]

[7]T 29, L24 to T 30, L 24

·    She agreed that she may have told Dr Phan on 17 July 2015 that both her hands were sore.[8]

[8]T 31, L 1-3 & Exhibit 1, p.13

·    Ms Ly had attended another doctor at Sonic Health Plus in Laverton North where she was taken by a supervisor at work.  She had attended on 3 July 2015 complaining about right shoulder pain, right wrist pain and left leg pain.[9]

[9]T 31, L 20-28

·    Ms Ly agreed that this doctor referred her to an orthopaedic surgeon in July 2015 with a note that she was suffering from “lumbar back disc prolapse and arthritis of both hands.”[10]

[10]T 32, L 20-27

·    Ms Ly maintained that the problem were not her hands, but her shoulders and therefore she had not made reference to her hands in any of her affidavits.[11]

[11]T 33, L 17-25

·    She agreed that she was being treated by a physiotherapist, Dr Feldman, since March 2015.[12]

[12]T 36, L 27-30

·    She agreed that her hydrotherapy and physiotherapy were reduced in August 2016 because of a decision by the insurer.[13]

·    She agreed that her condition deteriorated in early 2017 with the increase in working hours to 21 hours per week and the reduction in treatment.[14]

·    Her physiotherapy was reinstated from July 2017.  She was having physiotherapy on Tuesday and Friday, one for her shoulders and one for her back.[15]

·    When she was having physiotherapy treatment twice per week, Ms Ly agreed she was able to work 21 hours per week “with some difficulty.”[16]

·    When the physiotherapy was reduced in October or August 2016 Ms Ly had to take extra medication and do more hydrotherapy.[17]

·    She was presently doing hydrotherapy four or sometimes five times per week.[18]

·    Ms Ly agreed that a Dr MacBeth had mentioned a multi-disciplinary pain management program to her, but she did not attend because she was doing physio and hydro.[19]

·    Ms Ly had discussed such a program with Dr Phan, perhaps two or three months ago.[20]

·    The work she has been doing since 2016 has been light duties.  Her medical certificates did not increase the working hours which remained at 18.[21]

[13]T 37, L 3-8

[14]T 37, L 12-15

[15]T 38, L 8 to T 39, L 5

[16]T 40, L 14-23

[17]T 41, L 15-19

[18]T 41, L 20-23

[19]T 42, L 22-28

[20]T 43, L 5-12

[21]T 43, L 15-18

15      Ms Ly was cross-examined in some detail about Certificates of Capacity provided to her during 2016 and 2017.  She agreed with those certificates and the stated restrictions.  They were subsequently tendered in evidence as part of Exhibit 4.

16      There was further cross-examination as to her return to work.

·    The plaintiff had been doing light duties in accordance with a return to work arrangement from May 2016.[22]

·    She agreed that the restrictions in the return to work arrangement had been signed off by Dr Phan on 17 June 2016.[23]

·    The restricted duties did not require lifting above shoulder height, save for packing some pillows on to a higher shelf.[24]

·    Ms Ly’s working hours were reduced to 18 per week in February 2017 after she had seen the rheumatologist, Dr Le.[25]

[22]T 47, L 29 to T 48, L 12

[23]T 49, L 30 to T 50, L 3

[24]T 50, L 19-31

[25]T 51, L 8-12

17      Finally in cross-examination Ms Ly agreed that with the treatment having been put back in place she did not know how many hours she would be able to work in, for example a month’s time.[26]

[26]T 51, L 22-24

18      When Ms Ly was re-examined I regarded the following matters as relevant:

·    She was having one physiotherapy session per week for her shoulder and one for her back.[27]

·    She was going to the pool to do her own hydrotherapy.[28]

·    Before 2011 she had never had time off work or modified duties because of any shoulder problems.[29]

·    After submitting the claim form for her shoulders and back in July 2015 she was put on light duties in about August, but was still working 38 hours per week.[30]

·    She initially had about eight weeks of light duty in 2011, but otherwise worked from 2011 until August 2015 doing her normal full duties of 38 hours plus overtime.[31]

·    After the surgery on her right shoulder in November 2015 she had about three months and two weeks totally off work after the operation.[32]

[27]T 52, L 2-5

[28]T 52, L 23-24

[29]T 53, L 19-23

[30]T 54, L 2-7

[31]T 54, L 8-19

[32]T 54, L 20-26

The medical evidence

19      The medical evidence relied upon by both parties was broadly similar, at least in terms of the identification of the plaintiff’s injuries.  There was no dispute that she had undergone low back surgery in 1999 and apparently had made a relatively good recovery.  The report from Dr David Walker, neurosurgical registrar, dated 1 February 1999[33] satisfies me that following a discectomy procedure Ms Ly made a reasonably good recovery, but from that time on had been instructed:

“… that she should look after her back in the future to prevent ongoing chronic problems, but she should do well in the long run.”[34]

[33]Exhibit A, p.34.1

[34]Ibid

20      Her general practitioner, Dr Hai Phan, referred her to Professor Richard Bittar, neurosurgeon, in August 2015 noting a history of:

“lower back pain history of laminectomy for R sided radiculopathy now has marked pain radiates to left leg associated with L sided L5 and S1 distribution numbness.”[35]

[35]Exhibit A, p.34.4

21      In that referral Dr Phan described the findings of an MRI examination which had been performed on the plaintiff on 17 September 2014.  The radiologist had concluded in that report that Ms Ly was suffering from mild to moderate canal stenosis at the lower levels of the lumbar spine, and impingement of both the L5 and S1 nerve roots, particularly on the left side.[36]

[36]Exhibit A, p.48

22      Professor Bittar provided five reports from 18 August 2015 to 19 August 2017.[37]  He commented most recently in relation to her back following an examination on 25 August 2016:

“She is currently working 21 hours per week on light duties.  As her hours have increased, her back pain has also increased.

Given that her back pain had increased as she increased her hours, it is highly unlikely that she would be able to work a significantly greater number of hours than 21 hours per week, and there is a high chance that her work capacity now would be less than 21 hours per week.  I would need to review her again to determine her work capacity at this point in time.”[38]

[37]Exhibit A, p.47.1 to 47.11

[38]Exhibit A, p.47.10

23      It was clear from the report that his opinion was limited to her capacity in relation to the lumbar spine condition.

24      Dr Phan also referred the plaintiff to a rheumatologist, Dr Christine Le, who arranged for a further MRI of the lumbar spine on 28 March 2017.  This report forms part of Exhibit A and was also referred to in Dr Le’s report dated 6 June 2017.[39] 

[39]Exhibit A, p.38-39 & 54-56

25      I note that Dr Le requested a reduction in the plaintiff’s hours of work from 21 to 18 hours per week.  This request was in the setting of Dr Le treating the plaintiff not only for the spinal condition, but also for the right shoulder.

26      Ms Ly was referred to Mr Dallalana, orthopaedic surgeon, in relation to her shoulders by Dr Phan in September 2015.  He provided a report dated 11 April 2016.[40]  He described the plaintiff’s right shoulder condition at the time of his surgery in November 2015 as involving:

“… a very large tear which could not be repaired was confirmed involving the tendons of the rotator cuff in her right shoulder.”[41]

[40]Exhibit A, p.46-47

[41]Exhibit A, p.46

27      He had removed a bony spur, cleared bursitis and generally cleaned up the joint to improve her comfort levels.  Although Mr Dallalana did not regard the condition as directly linked to her work, absent any specific trauma, he stated:

“The patient’s work involved frequent manoeuvring of heavy items including in an overhead position as I understand it and this can be a contributing factor to the pain experienced with this type of condition.  These tears can be increased in size and the pain associated with them made worse through regular demanding physical requirements.”[42]

[42]       Exhibit A, p.47

28      Mr Dallalana regarded the plaintiff’s prognosis as generally poor, and regarded ongoing pain and arthritis as likely to require further treatment.  He also believed there was a reasonable likelihood of joint replacement surgery in the future.  As to Ms Ly’s capacity for employment, he opined:

“The patient is fit for any alternate duties which may involve manual handling with the arm kept at waist level.”[43]

[43]Exhibit A, p.47

29      The plaintiff also tendered into evidence medico-legal opinions from Mr Christopher Pullen, orthopaedic surgeon; Mr David Brownbill, neurosurgeon; Dr Robyn MacBeth, occupational and environmental physician, and Mr Ash Chehata, orthopaedic upper limb surgeon.[44]

[44]Exhibit A, p.57 to 97

30      Mr Pullen provided a very detailed report in relation to Ms Ly’s shoulder problems.  His report was dated 26 October 2015 and pre-dated the surgery performed on the right shoulder by Mr Dallalana.  It is therefore of limited assistance in this application.

31      Mr Brownbill first examined the plaintiff in relation to her back condition on 18 May 2016 and again on 1 August 2017.  At the time of the preparation of his first report he had noted that Ms Ly was receiving physiotherapy on a weekly basis for both the right shoulder and the back.  She was at that time only working six hours per week, but was intending to increase her working hours shortly after Mr Brownbill’s examination.  At that stage he commented, in relation to her capacity, that she should avoid heavy lifting, forced spinal mobility, repeated bending and prolonged standing or sitting.[45]  He went on to state:

“She is fit for alternative duties avoiding those actions referred to.  The number of hours she could work would be dictated by her responses.”[46]

[45]Exhibit A, p.67

[46]Exhibit A, p.68

32      When she was reviewed by Mr Brownbill on 1 August 2017 she was then working 18 hours per week on alternate duties.  He regarded her condition from a neurological point of view as being unchanged from the time of his previous examination and stated as to capacity:

“Again I consider it appropriate for her to avoid heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.

I note that she is now working 18 hours a week being able to stand or sit at will (but she considers any increase in hours would increase her lower back pain.)”[47]

[47]Exhibit A, p.72

33      Ms Ly was examined by Dr Robyn MacBeth on 21 June 2017, and a report dated 28 June 2017 formed part of Exhibit A in this application.[48]  In that report Dr MacBeth set out the very detailed history of the injuries impacting upon both the right and left shoulder and also the lower back.  She believed both the bilateral shoulder injuries and the spinal injury had been caused or aggravated by “the physically demanding and fast-paced nature of Ms Ly’s pre-injury duties.”[49]  She regarded Ms Ly as being fit for part-time sedentary work only based upon her current level of physical function.  I do note that in that opinion Dr MacBeth did not seek to differentiate between the injuries affecting either shoulder or the back as separate causes of incapacity.

[48]Exhibit A, p.74-88

[49]Exhibit A, p.87

34      Dr MacBeth provided a supplementary report to the plaintiff’s solicitors on 11 August 2017[50] in which she separately considered the restrictions impacting upon the plaintiff’s work capacity by reason of the right shoulder injury alone, the left shoulder alone, and finally the lower back injury.  In each case she described the capacity as being for:

“… alternative office-based duties on a part-time basis within the physical demands of sedentary work.[51]

[50]Exhibit A, p.89

[51]Exhibit A, p.89 & 90

35      A further medico-legal opinion in relation to the plaintiff’s shoulder injuries was sought from Mr Ash Chehata.  He examined Ms Ly on 30 May 2017 and provided an initial report dated 5 July 2017.  He subsequently provided a further opinion in relation to the potential hours likely to be suitable for Ms Ly in terms of her restricted work capacity.  Both reports were tendered in evidence as part of Exhibit A.[52]

[52]Exhibit A, p.81-7

36      Mr Chehata again took a very detailed history and his diagnosis was recorded as follows:

“Irreparable right rotator cuff tear with a partial thickness tear of supraspinatus and subscapularis  on the left shoulder.”[53]

[53]Exhibit A, p.95

37      As to the causation of those injuries he stated:

“Ms Ly has been working for the last ten years as a machine seamstress.  Her work entails repetitive overhead activity with both shoulders, pulling and pushing rolls of fabric and then manipulating awkward mattress bases.  Over the years, the required pace to produce bases has increased and whilst lifting heavy rolls of fabric above her shoulder, she developed bilateral shoulder pain, as well as lumbar spine pain. 

X-rays and ultrasounds confirm a massive rotator cuff tear.  She has had operative intervention comparing an irreparable rotator cuff tear on the right side.  She is currently hesitant to perform operative intervention on the left because of the lack of success of the right.”[54]

[54]Exhibit A, p.95

38      Unsurprisingly Mr Chehata regarded the plaintiff as being unfit for her pre‑injury employment and commented as to her capacity as follows:

“She is fit for alternative duties, such as light work and below shoulder activity.  She is continuing to perform sewing of pillows, and I believe that  this has been quite a success with regard to the hours working, as well as the expectations by the employer.”[55]

[55]Exhibit A, p.95

39      In the supplementary opinion Dr Chehata opined that in respect of each shoulder a limitation of 18 hours of modified duties was likely to continue indefinitely.[56]

[56]Exhibit A, p.97

40      The plaintiff also tendered into evidence an earlier report provided to the defendant’s insurer by Dr Graeme Doig, orthopaedic surgeon.  This report was dated 31 July 2015 and forms part of Exhibit A.[57]  Dr Doig diagnosed the plaintiff’s condition at that time as being:

[57]Exhibit A, (Defendant’s Court Book 1-7)

“a)  Recurrent aggravation of the pre‑existing degenerative lumbosacral  

    

spine.

b)  Chronic rotator cuff tear of the dominant right shoulder.”[58]

[58]Exhibit A, (Defendant’s Court Book p.3)

41      He regarded both conditions as being pre-existing but aggravated by Ms Ly’s employment.  His only comment in relation to work capacity at that time was that Ms Ly was essentially performing normal duties, but stated that there was restrictions in place which were not being adhered to.

42      The defendant tendered into evidence three reports from Dr Peter Boys, orthopaedic surgeon, dated 16 June 2016, 17 November 2016 and 11 July 2017.[59]  Dr Boys had examined the plaintiff prior to the preparation of each report.  At the time of his first report he expressed the following opinion in relation to capacity:

“This lady’s right shoulder condition will give rise to permanent restrictions on reaching and lifting in the work place.  I believe that this lady will be able to maintain modified duties (full hours) in the long term.

…

This lady is participating in a graduated return to work program at this time.”[60]

[59]Exhibit 4, p.8-39

[60]Exhibit 4, p.15

43      I note that she was working 14 hours per week over four days at the time of his initial opinion.

44      The second report expressed opinions in relation to the plaintiff’s prescribed treatment regime in addition to general comments relating to activities of daily living and work capacity.  Dr Boys expressed an opinion that Ms Ly’s capacities for suitable employment would not change with the cessation of physical therapies.[61]  He regarded her as having:

“… permanent restrictions with ongoing limitation of function of the right shoulder and will require permanent modification of duties.”[62]

[61]Exhibit 4, p.25

[62]Exhibit 4, p.25

45      She was performing 21 hours of modified duties at that time. 

46      I do note additionally that he had considered a Recovre assessment dated 9 November 2016 which involved a 10 week program progressing to 38 hours employment, which Dr Boys regarded as appropriate.[63]

[63]Exhibit 4, p.26

47      In his final report dated 11 July 2017 Dr Boys further opined as to capacity:

“This lady has a partial incapacity for employment particularly involving loading and reaching activities or outstretched use of the arms.  A combination of the lower back, right shoulder and left shoulder conditions does limit full duties of a sewing machinist.”[64]

[64]Exhibit 4, p.37

48      He further expressed the view that her right shoulder complaint was the major impediment to full hours of duties of employment.  He went on to state:

“Her left shoulder condition would not, in the normal course of events, give rise to specific working incapacity but may give rise to modification of duties in a factory environment.”[65]

[65]Exhibit 4, p.37

49      Finally, in relation to the back he regarded the condition as limiting activities involving repetitious bending and lifting, but further commented that he believed the back condition reflected constitutional degenerative change which “would have arisen notwithstanding her work activities.”[66]

[66]Exhibit 4, p.37

50      The final medical report relied upon by the defendant was from Dr Michael Bloom, occupational and environmental physician.  Dr Bloom had examined Ms Ly on 26 June 2017 and provided a report of the same date.  His report was tendered in evidence.[67]  It is clear that Dr Bloom was provided with comprehensive documentation relating to both the plaintiff’s back and bilateral shoulder conditions. 

[67]Exhibit 4, p.40-52

51      He concluded that Ms Ly was suffering with:

“… dysfunction of her low back and both shoulders secondary to degenerative disease that is genetically and age dependent, although it is quite plausible that she has experienced exacerbation of symptoms of these disease processes in the course of her work.”[68]

[68]Exhibit 4, p.47

52      He did not accept that work had either caused or accelerated these underlying conditions.

53      He went on to comment that he thought it was very unlikely that her low back condition had been caused or significantly contributed to by her work.  On the other hand he was prepared to accept that her work had contributed to the lateral shoulder symptoms in the form of exacerbation and/or aggravation of the underlying disease process.[69]

[69]Exhibit 4, p.48

54      Dr Bloom set out a number of restrictions that should be considered in relation to her employment capacity.  These were separately described in relation to each of the shoulder conditions and the low back condition.  He went on to comment as to her capacity in the context of her combined injuries:

“I do not believe that she has the tolerance to increase to full-time hours, although I believe that she does have the physical capacity to safely increase her hours to at least 22.5 hours per week on suitable duties.”[70]

[70]Exhibit 4, p.51

55      He regarded the plaintiff’s inability to increase beyond 22.5 hours per week as being limited by her level of tolerance rather than physical capacity.[71]

[71]Exhibit 4, p.51

56      The final piece of medical material tendered in evidence was an earlier report from Mr Peter Battlay, general surgeon, dated 7 September 2011.[72]  This report was concerned with carpal tunnel syndromes in both wrists which Mr Battlay regarded as being non-work related and not uncommon amongst manual workers.  The report did not specifically address capacity. 

[72]Exhibit 4, p.127-130

57      In any event it is clear that Ms Ly had continued to work in a full-time capacity until 2015.

58      The defendant tendered into evidence return to work documents from 7 February 2017 until 28 July 2017.[73]  The defendant also tendered various Certificates of Capacity prepared between 3 February 2016 and 1 February 2017.[74]

[73]Exhibit 4, p.100-111

[74]Exhibit 4, p.132-157

Analysis

59      The essential issue for determination was whether the plaintiff could establish, as a consequence of any or all of the claimed injuries, her capacity for work had been permanently restricted to less than 60 per cent of her “but for injury earnings”.  It was agreed between the parties that if the plaintiff’s injuries, properly assessed, produced a consequence of the restriction of her earnings to less than 23 hours per week she would be entitled to leave in respect of pecuniary loss. 

60      The parties agreed that her “but for injury earnings” were $919.22 based upon a 38 hour working week.  Her hourly rate would thus be $24.19.  Sixty per cent of that figure would be $551.53.

61      Her current earnings, based upon 18 hours per week, are $435.42.  If she were capable of working 23 hours per week that would produce earnings of $556.37 which would be greater than 60 per cent of her “but for injury earnings” and the application would then fail.

62      In final address Mr McKenzie, on behalf of the defendant, raised the issue of aggravation of injury, referring me to the shoulder complaints referred to in medical histories noted in 2007 and 2008.  The relevant employment with the current employer had not commenced until 1 April 2011, and therefore the case whether reliant upon either or both shoulders or the lower back should be viewed as an aggravation case.

63      Mr McKenzie referred me to the established authorities in Petkovski v Galletti[75] and Filipowicz.[76]  I note in relation to Filipowicz that the court was there concerned with separate and distinct injuries, one occurring in 2003 and the other in 2006 which were both said to be productive of consequences entitling the worker to obtain leave.  The Court of Appeal in that case made it clear that it was erroneous for a judge to accumulate the effects of both injuries:

“… and asking himself whether each injury materially contributed to the ultimate consequences.”[77]

[75][1994] 1 VR 436

[76]A.G. Staff Pty Limited v Filipowicz & Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60

[77]Filipowicz at [38]

64      In the present case the assessment of aggravation consequences insofar as the right shoulder is concerned is not difficult.  Whilst it is true that there were complaints noted by medical practitioners in both 2007 and 2008, it is abundantly clear that the plaintiff retained a capacity to continue in full-time employment without restriction until 2015.  It is clear that after the development of symptoms sufficient to warrant shoulder surgery in late 2015 that the plaintiff’s capacity for employment was significantly impaired.

65      The plaintiff impressed me as a credible witness and her efforts in maintaining ongoing employment with the defendant are in my view consistent with a high level of motivation. 

66      The medical evidence is clear that she has a restricted work capacity for suitable employment by reason of the massive rotator cuff tear affecting the use of her dominant right shoulder.  It is also significant that she had graduated up to a level of 21 hours work per week before the defendant’s insurer made a decision to terminate the provision of physiotherapy services for her in the latter half of 2016.  In the months leading up to the hearing of this application she had returned to receiving weekly physiotherapy treatment for her right shoulder (in addition to a further weekly treatment for her low back condition).  She had, on medical advice, reduced her working hours to 18 per week in the period when those physiotherapy treatments were not available to her.  Once again the plaintiff’s evidence concerning her efforts to attend for hydrotherapy sessions at her own expense impressed me as being consistent with a genuine and well‑motivated worker.

67      The final submissions advanced by Mr McKenzie also made reference to the need for the plaintiff to “disentangle” the consequences flowing from the particular injuries.  Reference was made to Peak Engineering & Anor v McKenzie[78]  which requires such an approach where there are multiple injuries impacting upon a particular plaintiff. 

[78][2014] VSCA 67

68      Much of the medico-legal material relied upon by the plaintiff is directed towards dealing with the often difficult question of identifying the particular injury producing the relevant consequence as the legislative framework requires. 

69      Considering the injury to the plaintiff’s dominant right shoulder, and the evidence given both by her and her treating medical practitioners as to the treatment regime required of her, I am satisfied that she will be permanently unfit to return to her full duties and it is highly likely that she will be permanently restricted in terms of the hours she is able to work.  She has never graduated on any return to work program to more than 21 hours per week, and those hours were reduced on medical advice to 18 hours per week after the cessation of physiotherapy support services.

70      I am satisfied in relation to the right shoulder alone that she has a present work capacity in the order of 18 hours per week and such capacity is unlikely, through the foreseeable future, to exceed 21 hours per week on a permanent basis.

71      Insofar as the left shoulder is concerned I note that it impacts upon the non‑dominant upper limb and would also appear, on the medical analysis, to be regarded as having a lesser impact than has the right shoulder.  In any event this is not a case where the combined effects of both shoulders have restricted the plaintiff’s ability to work.  I am satisfied that the reduction in her working capacity referred to above, as it involves the strenuous use of her dominant right arm, is related solely to the aggravation-type injury to her right shoulder.

72      It is unnecessary for me to consider separately the applications made by the plaintiff insofar as they relate to the left shoulder alone, or to the lower back.  Suffice to say that as far as the lower back injury is concerned I am satisfied that it alone is again of considerable restriction to her in terms of her ability to perform even restricted duties for more than the hours she is presently working.  I am also satisfied in relation to that injury alone, and noting in particular the opinions expressed by Professor Bittar and Mr Brownbill, that the plaintiff has a permanent loss of earning capacity which would limit her hours of work to no more than 21 hours per week on a permanent basis.

Conclusion

73      I propose to grant leave to the plaintiff to recover damages for pecuniary loss and pain and suffering in respect of a serious injury to the right shoulder.  Were it necessary to do so I would also be prepared to grant leave on the basis that the injury to the plaintiff’s lower back is also to be regarded as a serious injury for both pecuniary loss and pain and suffering.  I am not persuaded that the injury to the plaintiff’s left shoulder independently produces consequences of sufficient magnitude to grant leave.

74      I will hear the parties further in relation to the formal orders sought and the question of costs.

- - -