Machar v Victorian WorkCover Authority
[2022] VCC 360
•25 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-20-04614
| JOHN MAYOR MACHAR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 October 2021 | |
DATE OF JUDGMENT: | 25 March 2022 | |
CASE MAY BE CITED AS: | Machar v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 360 | |
REASONS FOR JUDGMENT
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Catchwords: Workplace Injury Rehabilitation and Compensation Act 2013 – ss325 and 335 – dispute concerning loss of earning capacity – plaintiff a Sudanese refugee – employment as labourer and machine operator – injury to both shoulders – capacity for employment – plaintiff carrying on some activities as Elder in Sudanese community – whether capacity for suitable employment exists – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr S Scully | Maurice Blackburn Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HIS HONOUR:
(a) General background
1This matter comes before me by way of an application pursuant to s325 and s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (hereinafter referred to as “the Act”). The originating motion on behalf of the plaintiff sought leave in respect of both pain and suffering and loss of earning capacity. However, it was brought to my attention at the outset by Mr Miles, counsel for the defendant, that the issue remaining for determination was the loss of earning capacity. It was conceded that the plaintiff was entitled to bring proceedings in respect of pain and suffering. I would refer to Transcript (hereinafter referred to as “T”) 3. It was also made clear at the outset by Mr Mighell, senior counsel on behalf of the plaintiff, that no reliance was placed upon paragraph (c) of the definition of serious injury, although this had previously been pleaded. Thus, the reliance was solely upon paragraph (a) of the definition – see T2.
2The injuries relied upon are separate injuries to the right and left shoulders. These injuries were allegedly the result of heavy, repetitive work. This shall hereinafter be referred to “the work process”. At the relevant time, the plaintiff was employed by an entity called Techwool Trading Pty Ltd, which shall hereinafter be referred to as “Techwool”.
3Mr J Mighell QC with Mr S Scully of Counsel appeared on behalf of the plaintiff. Mr C Miles of Counsel appeared on behalf of the defendant. The plaintiff relied upon the contents of his affidavit as being true and correct and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(b)The plaintiff’s background, education and employment prior to involvement in the work process
4The plaintiff is aged approximately 58 years. He is a refugee from South Sudan and accordingly his precise date of birth is unknown.
5The plaintiff has sworn that, due to the conflict in South Sudan, his early life was very disrupted. He was able to complete secondary schooling, but then spent a number of years in a United Nations refugee camp in Ethiopia. He had no formal qualifications, but effectively worked as an untrained primary school teacher for children in the camp. He moved with his family to Kenya in 1992 and migrated to Australia in 2001.
6After arriving in Australia, he completed an English course in 2002 and obtained a Certificate III in Community Work through Victoria University in 2003. He became an Australian citizen in that year.
7In Australia, the plaintiff has worked mainly in unskilled roles, such as picking and packing for a car component manufacturer, labouring work at a food factory and labouring and machine operating work with a tool making company.
8The plaintiff commenced work with Techwool in approximately August 2012. His work was that of a labourer and machine operator. Given that only loss of earning capacity is in dispute, extensive details in relation to his employment are not required. Suffice to say that it is alleged that the work process involved the handling of very heavy amounts of wool.
9The only other features of the plaintiff’s background that might be mentioned are that his first language is Dinka, but that he also speaks Arabic. He has what is described as conversational English-speaking skills. He has been married, but his relationship with his former wife has broken down. He now lives apart from her and with his adult children.
(c) The plaintiff as a witness
10I found the plaintiff to be a straightforward witness, whose evidence I accept as being given truthfully. Dr David Ho, occupational health consultant, who examined the plaintiff at the request of the defendant, described him as being pleasant and cooperative. In addition, as pointed out by Mr Mighell in his closing address, there was no extraneous material, such as video surveillance, used to attack the plaintiff’s credit and the defendant has conceded that the plaintiff’s pain and suffering are of sufficient magnitude to satisfy the statutory requirements. Of course, such a concession means that the plaintiff’s pain and suffering as a result of the injuries are more than significant or marked and are at least very considerable.
(d) The state of the plaintiff’s health prior to the work injuries
11Whilst the plaintiff, through no fault of his own, has had a somewhat traumatic life, particularly in his early years, it is not suggested that he had suffered any injury to the shoulders or arms prior to commencing employment with Techwool. His traumatic early life may have had some relevance if this was a paragraph (c) case, but, as it is not, and given the concession that has been made, it can be said that there is no relevant medical history prior to the performance of the work duties.
(e) The injury, its treatment, diagnosis and prognosis
12At the outset, I would point out two matters.
13Firstly, the plaintiff is right hand dominant.
14Secondly, in his opening address Mr Mighell stated that the bilateral shoulder conditions could not be aggregated and that the plaintiff would be relying upon them separately, meaning a separate injury to the left and a separate injury to the right shoulder – see T2. In his closing address, Mr Miles effectively endorsed that proposition and referred me to the decision of the Court of Appeal in Lexa v Transport Accident Commission [2019] VSCA 123. It was not suggested or argued that the subsequent decision of the Court of Appeal in Victorian WorkCover Authority v Brassington [2021] VSCA 236 had any impact upon the decision in Lexa. It is to be remembered that, in Brassington, the worker suffered injuries to the knee and ankle of the one leg in a single incident. I would point out that the following was said in Brassington at paragraph [48]:
“If a leg or an arm is injured in two or more places, in the one incident or set of compensable circumstances, and the function of that leg or arm is thus impaired, there is no principled reason why those injuries cannot be aggregated for the purpose of determining whether the injured person has an impairment of the relevant limb that satisfies the statutory definition of ‘serious injury’.”
15References to an injury of “a leg or an arm” and to impairment of “the function of that leg or arm” are to be noted. There is also reference to aggregation that is permissible where “the injured person has an impairment of the relevant limb that satisfies the statutory definition …”.
16In light of the above, and bearing in mind in the present case that the plaintiff alleges injury to both arms, what is virtually the agreed position of the parties, namely that each upper limb must be examined separately as to whether the burden of proof has been discharged, is correct. The concession made by counsel on behalf of the plaintiff is proper and appropriate.
17Accordingly, I shall now set out a summary of the relevant medical material, particularly insofar as it relates to the sole remaining issue of loss of earning capacity.
(i) Injury to the right arm
18The plaintiff’s treating general practitioner has been Dr Mebratu Hagos of Canterbury Street, Deer Park. His early certificates or brief reports refer to the plaintiff as suffering from a right and left shoulder rotator cuff muscle problem. He did not believe that the plaintiff was able to work. His report of 19 March 2019 concerns bilateral rotator cuff injuries, making no distinction between the arms. Amongst other things, Dr Hagos referred to “very severe bilateral shoulder pain”. A report of 2 April 2019 to the plaintiff’s solicitors was expressed in similar terms. That report also referred to the plaintiff as having very severe bilateral shoulder pain, stiffness and finding it hard to move both shoulders.
19Dr Hagos reported again to the plaintiff’s solicitors on 28 April 2021. This report set out some history of treatment and stated that the plaintiff was still suffering from very severe bilateral shoulder pain and that he was unable to work in the future. The prognosis was not good. The plaintiff’s shoulder problems were affecting his activities of daily living.
20It is apparent that Mr Douglas Li, shoulder and knee orthopaedic surgeon, performed surgery on the plaintiff’s left shoulder on 21 November 2017. There is no reference to the right shoulder in the operation report of Mr Li. Subsequently I will turn to a discussion of the left shoulder.
21However, it is also apparent that Mr Li performed surgery on the plaintiff’s right shoulder on 18 September 2018. The procedures performed seem to have been fourfold. These were a right shoulder arthroscopic SLAP debridement; right shoulder arthroscopic acromioplasty; right shoulder subacromial bursar excision; and right shoulder rotator cuff repair. The details of the actual surgery are quite technical.
22Mr Li provided a report to the plaintiff’s solicitors on 28 April 2021. It is noted that the plaintiff had undergone an MRI of the right shoulder, which showed acromioclavicular joint arthropathy with partial tear of the supraspinatus, with bursitis. When Mr Li saw the plaintiff on 26 November 2018, it was two months after the right shoulder rotator cuff repair surgery. The plaintiff was gradually improving, with mild discomfort on activity, but the rotator cuff was still weak. When seen on 4 February 2019, he had near to a full range of motion of the right shoulder, but the rotator cuff was still weak, although regaining strength. He was not fit to return to work. When reviewed seven months after the right shoulder rotator cuff repair, he was making slow but steady progress. However, the plaintiff noted aching with activity, especially with his arms outstretched or overhead. He had near to a full range of motion and his rotator cuff was regaining strength. He was to continue with exercises and physiotherapy. He was then capable of performing part‑time office duties, but was not to lift more than 1 kilogram (whether this observation of Mr Li was in relation to the right shoulder only or to both shoulders is not clear).
23When reviewed on 22 July 2019, the plaintiff was making slow but steady progress. This observation follows a sentence in which both shoulder surgeries were described. When reviewed on 14 October 2019, the plaintiff was making very slow progress. Mr Li’s observations concerned both upper limbs, although the plaintiff’s flexion on the right was marginally lower than that on the left. Following a review via Telehealth on 27 April 2020, Mr Li stated that unfortunately the plaintiff had made very little improvement. It is unclear whether this observation was in respect of both shoulders, because in a following sentence Mr Li stated that the plaintiff was to continue with exercises and physiotherapy in the hope of regaining further motion, strength and condition of his shoulder (singular). The plaintiff was not fit to return to work. Mr Li reviewed him again on 20 July 2020. There had been slight improvement, but occasional discomfort with activity, with near full motion. Again, there is a reference to “shoulder”, but again this is preceded by a reference to both sets of surgical procedures. Mr Li made the observation that unfortunately the plaintiff was unable to work. A review on 12 October 2020 came to much the same conclusions. Again, there was reference to both shoulders and to “shoulder”. Mr Li then observed that unfortunately the plaintiff was unable to work, and referred to the fact that, if possible, the plan would be for him to return to permanent modified light duties.
24When further reviewed by Mr Li on 26 April 2021, the plaintiff complained of pain on the left being worse than on the right, with a near full range of motion and satisfactory strength. Mr Li noted that, unfortunately, the plaintiff had been unable to work and again referred to the possibility of retraining for permanently modified light duties. At the conclusion of his very detailed and lengthy report, Mr Li answered a series of questions. He stated that unfortunately the plaintiff did not have a present capacity for work. Mr Li also said that, with ongoing physical therapy, it was hopeful that the plaintiff would regain most of the strength and function of “the shoulder”, although this may have been said in the generic sense. If the plaintiff could regain most of the strength and function, Mr Li would be hopeful that he could return to modified light duties. He regarded the prognosis for both shoulders to be fair. The injury to both shoulders was affecting the plaintiff’s activities of daily living.
25A brief report of Ms Natasha Nhu Le, physiotherapist, such report being dated 20 December 2018, seems to be directed mainly to the plaintiff’s right shoulder. Ms Le referred to the plaintiff as still having “a lot of pain symptom and weakness in his right shoulder”. He was fit for light duties work, part‑time only, with no handling of heavy objects of more than 2 kilograms and with tasks only between the waist and shoulder levels. It was stated that the plaintiff should be allowed to work at his own pace.
26A further report from Ms Le of 6 February 2019 is again directed more towards the right shoulder. Ms Le stated that the plaintiff still had a lot of “pain symptom and weakness in his right shoulder”. However, she did go on to say that she did not believe that he had any capacity for work “due to his multiple injuries”.
27Dr James Rowe, specialist occupational physician, saw the plaintiff at the request of his solicitors, reporting on 6 July 2021. Dr Rowe took a history of the plaintiff’s complaints and treatment, including surgery to both shoulders. The plaintiff complained of more pain on the left side than on the right. On examination, Dr Rowe noted evidence of wasting and weakness in both shoulders and upper arms. There was also impaired sensation in both hands, along with severely reduced grip strength. Dr Rowe believed that the plaintiff was not presently fit for work and had no prospect of returning to his pre‑injury duties. Dr Rowe was apparently considering the injury to both shoulders in making that statement. He also referred to internal derangement in both shoulders, caused by employment, and noted the loss of strength in both. Similarly, Dr Rowe described various restrictions, particularly in relation to employment, which resulted from the injury to both upper limbs. He considered the restrictions to be permanent. He also believed that the plaintiff did not have any realistic capacity to perform “suitable” employment in either a full‑time or a part‑time position. Further, Dr Rowe considered the situation to be permanent, with it being unlikely that there would be any change in the future. He also made the passing observation that Dr Umberto Boffa, who had examined the plaintiff at the request of the defendant, in the context of discussing the plaintiff’s capacity for various full‑time duties had recorded that the plaintiff was 37 years of age, when in fact he is 57. Dr Rowe thought that the plaintiff needed permanent and ongoing treatment for his shoulders.
28Dr Rowe again reported to the plaintiff’s solicitors on 5 October 2021, some three months later. It would seem that he did not see the plaintiff again for the purposes of this supplementary report. Amongst other things, Dr Rowe was asked to direct his attention to each shoulder injury separately and comment as to whether the plaintiff was likely to be precluded or restricted in relation to the following activities – pushing, pulling or lifting; use of plant and equipment; use of his left and right arms; prolonged or repetitive use of his left and right arms; and overhead activities. A problem with this question is that it is prefaced and emphasised that the question is directed to the left shoulder injury only, but questions 3 and 4 specifically refer to use of the left and right arms. In any event, Dr Rowe stated that the plaintiff was restricted in relation to all of the listed activities and would not be a safe employee in any position requiring unrestricted physical strength and capacity. A similar question was directed to the right shoulder injury only, but it also had two parts specifically referring to left and right arms. However, in answer to another question, Dr Rowe specifically stated that, because of the condition of the plaintiff’s right shoulder, there was no question of his having been able to return to his previous employment. He did not have the capacity to return to that work or to anything similar. In answer to a further question specifically limited to the plaintiff’s right shoulder injury only, Dr Rowe stated that he was likely to be precluded from performing suitable employment for the foreseeable future. Dr Rowe made the further comment that he had attempted to answer the questions apportioning incapacity with reference to the right and left shoulders, when considering each separately. However, in an open employment situation, this was an almost impossible task. Separating the shoulder incapacities was quite a problematic issue. In terms of impairment and restriction, the left shoulder was “very slightly worse” than the right. However, for all intents and purposes, the plaintiff’s shoulders were both equally impaired in any practical work situation and equally impacted by, and impactful upon, any work for which he may have previously been suited or qualified.
29At the request of his solicitors, the plaintiff has also been examined by Mr Ash Chehata, shoulder, elbow and wrist surgeon. Mr Chehata reported on 5 August 2021, having examined the plaintiff on 27 July. The history obtained was essentially of the plaintiff beginning to develop severe pain in both shoulders in approximately May 2016. In relation to the right shoulder, Mr Chehata diagnosed degenerative change in the AC joint and a partial tear of the supraspinatus, with bursitis, which required an arthroscopic repair. In relation to the plaintiff’s restrictions, Mr Chehata made the somewhat ambiguous statement that, in the left and right shoulders on their own, there was no doubt that he was precluded in terms of repetitive pushing, pulling or overhead activities. He considered that prolonged and repetitive use of the left arm and right arm was likely to be significantly reduced and would hamper improvement. He expressed the opinion that, as a consequence of the physical injuries on the left and right sides, it was difficult to believe that the plaintiff would have a capacity to gain reliable and consistent employment. In relation to the prognosis for the right shoulder, Mr Chehata said that it would remain painful and would be weaker than normal, especially if, after the rotator cuff repair, it did not heal. He considered both shoulders to have a guarded prognosis. He also believed that the plaintiff had plateaued in terms of improvement.
30The defendant has also had the plaintiff examined and again there are some potential difficulties in relation to comments directed towards the individual arms.
31Dr David Ho, occupational health consultant, first saw the plaintiff on 30 August 2016, reporting to the defendant on the following day. This report predates the surgery and is of limited utility. At the time of the examination, the plaintiff stated that his left shoulder was reportedly better, but that he still had a problem with his right shoulder, which was not improving. He complained of an inability to sleep on his right side and referred to pain and restriction of movements in the right shoulder, more than the left. Dr Ho concluded that, with appropriate treatment, the left shoulder was resolving, but the right appeared to have progressed into a frozen shoulder or adhesive capsulitis. Examination confirmed restriction of movements in the right shoulder more than the left. He expressed the opinion that the plaintiff had a genuine persisting dysfunction in both shoulders. He referred to the plaintiff as having a frozen right shoulder or adhesive capsulitis post rotator cuff tendinopathy and bursitis with impingement.
32Dr Ho reported again on 2 September 2016, after a work site visit. I note that, during this visit, Dr Ho was informed that there were no suitable duties for the plaintiff. His pre‑injury duties had involved repeated use of both arms in placing wool into a hopper at shoulder level. Dr Ho accepted that Techwool was genuinely not able to provide any alternative duties for the plaintiff. Perhaps surprisingly, he described the plaintiff’s pre‑injury duties as being relatively of a light nature.
33Dr Ho reported to the defendant again on 1 November 2017, having re-examined the plaintiff on the previous day. On this occasion, the plaintiff stated that both shoulders were essentially the same as when he had last been seen by Dr Ho. The pain in the left shoulder was greater than that in the right, but both shoulders had progressively worsened. Upon examination, shoulder girdle movements were slightly reduced on the right, compared to the left. Active shoulder movements were again restricted, but a better range was exhibited when compared to the previous examination. At this stage, approval of arthroscopic surgery to both shoulders was being awaited. Dr Ho believed that the plaintiff was capable of some work with considerable restrictions, such as avoiding lifting in excess of 2.5 kilograms, avoiding strenuous arm movements above shoulder level and the like. Dr Ho was of the view that the plaintiff required arthroscopic surgery.
34Dr Ho reported to the defendant again on 25 July 2018, having examined the plaintiff on the previous day. The plaintiff had undergone left shoulder surgery on 21 November 2017. That shoulder was progressing well. A decision in relation to right shoulder surgery was awaited. Dr Ho thought that the plaintiff had a capacity to return to work on suitable select duties, with initial cautions. The plaintiff had not recovered sufficiently to return to his pre‑injury duties and hours and he had a limited work capacity for selected or modified duties.
35Dr David Elder, consultant in the speciality of occupational and environmental medicine, reported to the defendant on 18 July 2019. He had seen the plaintiff on the previous day. In relation to the surgery which he had undergone, the plaintiff stated that the left shoulder surgery had helped. However, the surgery on the right shoulder performed in September 2018 had been of no benefit. He had continuing pain in both shoulders, but the right was the worse of the two. He could no longer sleep on his right side. Dr Elder considered the impairment to be stabilised within the meaning of the AMA Guides, his examination being in relation to an Assessment of Permanent Impairment.
36Dr Umberto Boffa, consultant occupational and environmental physician, saw the plaintiff at the request of the defendant and reported on 26 August 2020. To him, the plaintiff said that there had been no improvement in his bilateral shoulder ache and stiffness following surgery and no change in severity. The left shoulder symptoms were worse than those on the right. The conclusion of Dr Boffa was that the plaintiff had bilateral post-surgical rotator cuff injuries and left shoulder arthritis. He thought the plaintiff to be fit for full‑time duties, but that he should avoid driving for more than 30 minutes, repetitive shoulder elevation, reaching, pulling, pushing, lifting and carrying more than 5 kilograms. Dr Boffa made no comment concerning the individual arms.
37Dr Boffa reported again on 23 August 2021, having seen the plaintiff on that day. The plaintiff was again complaining of persistent and constant bilateral shoulder aching and stiffness, with the left worse than the right. He had problems sleeping on either side, lying down for relief for approximately one hour at midday on most days. He could not do such things as hang clothing or reach overhead into cupboards. Dr Boffa effectively did not distinguish between the shoulder injuries, but considered the plaintiff to be no longer fit for full‑time employment. He recommended that the plaintiff commence suitable duties in four hour shifts on three non-continuous days per week, graduating to full‑time hours over six weeks. He set out a chart in this regard.
38Dr Boffa provided a further report dated 8 September 2021, this being described as an urgent supplementary report and without his seeing the plaintiff again. The object of this was to express his opinion concerning documentation. That documentation, whilst somewhat confusing, appears to relate to possible work as a Refugee Centre Diverse Bicultural Worker with Southern Migrant & Refugee Centre. Dr Boffa expressed the opinion that the plaintiff could perform all tasks involved in the job, the only proviso being that prolonged driving should be avoided. He thought that the plaintiff would benefit from English language skills training and a Certificate III in Community Services. He thought that the plaintiff was capable to learning such skills. He again set out a table of graduated return to full‑time work.
39That concludes my summary of the medical material insofar as it relates to the right shoulder. As will have been obvious, at times trying to isolate medical opinion in relation to one specific shoulder has proven difficult.
40In relation to the right shoulder, it is not suggested that the plaintiff had suffered any injury to or symptoms in that shoulder prior to the relevant employment. Insofar as the injury is constituted by aggravation of a pre‑existing condition, such condition was not previously productive of any symptoms or restrictions.
41It is also to be remembered that the defendant has accepted that the plaintiff is entitled to leave to bring proceedings for pain and suffering. Any suggestion that the plaintiff suffered only a temporary aggravation of a pre‑existing condition would not sit comfortably with the concession that has been made.
42That is also true in relation to the question of permanence generally. The level of symptomatology from which the plaintiff suffers in relation to his right shoulder effectively is conceded to be permanent. Dr James Rowe has stated that, considering the plaintiff’s right shoulder injury only, he is likely to be precluded or restricted in relation to activities involving pushing, pulling or lifting, use of plant and equipment and the like for the foreseeable future. Considering the plaintiff’s right shoulder injury only, Dr Rowe stated in clear terms that the plaintiff was likely to be precluded from performing suitable employment for the foreseeable future. Thus, he directed his attention not only to the right shoulder separately in reference to certain specific tasks, but also in relation to the performance of suitable employment. In each instance, permanence is effectively asserted.
43Mr Ash Chehata considered the prognosis for each shoulder. In relation to the right shoulder, he observed that it was still remaining painful and would be weaker than normal, especially after the rotator cuff repair if it did not heal. He then stated that, in relation to both shoulders, there was a guarded prognosis.
44Mr Chehata provided a supplementary report on 10 October 2021 without seeing the plaintiff again, but in that report he directed his attention to the individual shoulders. In relation to the right shoulder and arm, Mr Chehata stated that the plaintiff could no longer use the arm to push or for the use of plant and equipment and any prolonged use or repetitive use of that right arm causes pain. He further stated that, after such a long period of time following the operative intervention, this is now a chronic situation that is unlikely to change over time. The plaintiff is unlikely to return to any form of employment in the near future, as he had basically been performing unskilled manual work. Indeed, Mr Chehata added that, realistically, as the plaintiff is a refugee from Sudan, he would be unlikely to regain any formal employment in the near future. Whilst those observations referred to the near future, it is to be remembered that Mr Chehata’s earlier observation in relation to the right shoulder was that this situation was chronic and was unlikely to change over time. As was pointed out during submissions, Dr Rowe and Mr Chehata are the only medical examiners who have given specific answers in relation to the individual arms, as opposed to the arms as a unit. On the issue of permanence of the plaintiff’s right upper limb condition and restrictions, I prefer and accept their opinions. In relation to the defendant’s medical material, Dr Ho has not seen the plaintiff since the right shoulder surgery. Dr David Elder effectively viewed the shoulders and arms as a unit. However, he was prepared to give a whole person Assessment of Permanent Impairment of 20 per cent. Whilst he was effectively viewing the arms as a unit, patently he was prepared to treat the impairment as being permanent.
45Dr Umberto Boffa referred to the plaintiff as having bilateral post-surgical rotator cuff injuries and made no attempt to assess them separately. However, whilst he considered the plaintiff to be fit for certain restricted occupations, he does not appear to have been asked to direct his attention to the issue of permanence.
46In summary, I am of the view that the restrictions from which the plaintiff suffers in relation to his right shoulder are permanent within the meaning of the Act in that they will persist for the foreseeable future.
(ii) Other developments since the injury to the right arm
47Effectively the plaintiff has not engaged in paid employment since suffering the injury. He believes that the resulting financial hardship at least played a role in the breakdown of his marriage. He is an Elder in the South Sudanese community and this requires him to do such things as counselling members of the community, negotiating inter-tribal conflicts and attending community weddings and funerals. On one occasion this required him to travel to Sydney in relation to the raising of funds, these being required to transport the body of a young South Sudanese man, who had been killed in an accident back, to his homeland. Due to the illness of his mother, the plaintiff returned to Kenya in 2018 and Sudan in 2019. The plaintiff has sworn that the extent of his computer skills is the use of a smart phone. He does not own a computer or have internet connection to his house. He has obtained no further qualifications over and above the Certificate III in Community Work referred to earlier and has obtain no licences other than his Victorian driver’s licence.
48It is not suggested that the lack of other activities and the alleged inability to engage in employment have resulted solely from the injury to the right upper limb. As I understand it, the argument on behalf of the plaintiff is that the consequences of injury to each limb, viewed separately, are of sufficient magnitude to render him unable to engage in employment and he has not so engaged. The admission of liability in relation to pain and suffering is again to be borne in mind.
(iii) Ruling in relation to the right arm
49In my opinion, the plaintiff has discharged the burden of proof in relation to his inability to engage in employment as a consequence of the injury to the right arm. At different times, the plaintiff has attributed slightly more problems to one upper limb as opposed to the other. The impression which I gained from the medical reports as summarised above is that each is contributing approximately equally to his inability to engage in employment. Even if it is the case that the left upper limb has been marginally more troublesome than the right upper limb, it is to be remembered that the plaintiff’s dominant hand is his right.
50I prefer and accept the opinions of Dr Rowe and Mr Chehata. Each has expressed an opinion as to capacity for work in relation to the individual limb. The ultimate opinion of Dr Rowe, specifically directing his attention to the plaintiff’s right shoulder injury, is that he is likely to be precluded from performing suitable employment for the foreseeable future. Dr Rowe also stated that, in his opinion, the plaintiff’s shoulders are both equally impaired in any practical work situation and equally impact upon his capacity for any work for which he may previously have been suited or qualified.
51In his supplementary report of 10 October 2021, Mr Chehata directed his attention to the consequences of the injury to the individual limbs. He expressed his opinion in relation to the impact on the plaintiff’s employability resulting from the right arm injury. He stated that it has precluded the plaintiff’s ability to push, pull or lift and he is unable to perform any overhead activity whatsoever. Any prolonged use or repetitive use of the right arm causes pain. Mr Chehata considered this to be a chronic situation, which is unlikely to change over time. He also expressed the view that, particularly in relation to the right shoulder, it is unlikely that the plaintiff will return to any form of employment in the near future, given that previously he has basically performed unskilled manual work. He referred to the plaintiff’s history as a refugee from Sudan. He also pointed out that the plaintiff has no educational background upon which to fall back. He does not have any other previous skills. True it is that Mr Chehata used the expression “near future”, although the overall impression gained is that the plaintiff is unlikely to return to any form of employment for the foreseeable future.
52As stated, those examining on behalf of the defendant have not dealt with the arms separately. I can appreciate the proposition that, if a medical examiner finds that a plaintiff has a capacity for suitable employment when taking into account an injury to both arms, a fortiori an injury to one of the two upper limbs would still leave the worker with a capacity for suitable employment. However, even bearing that in mind, I prefer the opinions on behalf of the plaintiff. The views expressed by Dr Ho predate the surgery to the right shoulder. Dr Elder was primarily carrying out an Assessment of Permanent Impairment, arriving at a figure of 20 per cent, and made no specific comment as to the plaintiff’s capacity to perform any or any particular form of employment.
53Dr Boffa has addressed the issue of suitable employment, albeit that he was dealing with both arms effectively as a bilateral unit. I note that, in his report of 26 August 2020, Dr Boffa has referred to the plaintiff as coming to Australia in 2001 from Kenya where he was a primarily schoolteacher and completed high school and a year of university. He has not referred to the fact that the plaintiff in fact completed secondary education in South Sudan and then spent a number of years in a United Nations refugee camp in Ethiopia. In that camp, he effectively performed the role of a primary school teacher, despite having no formal qualifications. Ultimately he and his family moved to Kenya and then, in 2001, to Australia. Thus, the history recounted by Dr Boffa was not as comprehensive or accurate as it might have been.
54Dr Boffa reported again on 23 August 2021, again seeing the plaintiff but also having been provided with a Suitable Employment Report of 9 September 2020 from Recovre. It is to be remembered that the initial report was of 26 August 2020. In his report of 23 August 2021, Dr Boffa stated that the plaintiff was not fit to work as a cashier because of unsuitable repetitive reaching, handling, wrapping, packing and computer keyboard work, in addition to a problem with lifting and carrying. It is a little difficult in the report of Dr Boffa to be clear as to what problems related to work as a cashier and which to the role of a despatch packer or whether there was some overlapping between the two. In any event, the occupation for which Dr Boffa considered the plaintiff to be fit was that of non-manual handling welfare support, even then referring to relevant retraining.
55As previously stated, in his supplementary report of 8 September 2021 Dr Boffa expressed the view that work as a Refugee Centre Diverse Bicultural worker with South Sudan Migrant & Refugee Centre was work that did not involve unsuitable manual handling and was thus within the physical capabilities of the plaintiff. He did comment that prolonged driving in the field, if required, should be avoided. Further, given that the plaintiff required an interpreter, he would benefit from English language skills training and a Certificate III in Community Services would also be helpful in “requiring success in the role”. He thought that the plaintiff was capable of learning these skills. Whilst Dr Boffa may have had the relevant documents before him when compiling his report, he provided no commentary on or description of the actual tasks that would be involved or any prerequisites that might be needed, other than his reference to prolonged driving, English language training and a Certificate III in Community Services.
56I say now that I found some of the content of Dr Boffa’s reports to be either inadequate or confusing.
57In any event, I am not satisfied that the role of Diverse Bicultural Worker represents suitable employment for this plaintiff. As Mr Mighell pointed out in his opening, to qualify for this position suggested by Recovre, the plaintiff “must have excellent proficiency in the English language”, both written and oral. He would be required to have the capacity to prepare accurate reports and documents. He would also be required to provide clear, accurate and timely email message responses. The plaintiff does not have a computer. He has not used one for some eight years. I accept that, whilst he has some English, the use of an interpreter was warranted and, at times, necessary.
58I have looked at the lengthy report from Mr Paul Hartley of Vocational Directions Pty Ltd, such report being dated 25 July 2021, and put in evidence by the plaintiff. I note that, in reference to the Certificate III in Community Services Work obtained by the plaintiff in 2003, this was a basic qualification from the 1999 Community Services Training Package. That Package has since been completely overhauled and reviewed twice. Mr Hartley noted that the plaintiff had not utilised this training in the 18 years since he obtained it. He considered that it was unlikely that further study by the plaintiff, even if successful, would lead to viable employment, especially given the plaintiff’s physical limitations and his prolonged unemployment post-injury. He has no customer service experience and no supervisory experience. He also referred to the fact that the plaintiff had been in no actual paid employment for the South Sudanese community, despite having been in Australia for some 18 years. The paid work performed by him has been unskilled and laborious.
59Mr Hartley referred to various options considered elsewhere, such as car park attendant, cashier, sales assistant and the like. He considered them all as being precluded, given the many barriers to successful redeployment which the plaintiff faces. He also referred to the opinion of the plaintiff’s treating general practitioner, Dr Hagos, who drew the conclusion that the plaintiff was unable to work in the future, was incapable of working and had a prognosis that was not good. Mr Hartley referred to the plaintiff’s Australian work history as being in the lowest levels of unskilled work and considered the plaintiff to be greatly disadvantaged. His conclusion was that the plaintiff’s total residual capacities were not realistically saleable in the current employment market. He was unable to endorse as being suitable any of the occupations or jobs that have been suggested. He stated that, sadly, his belief was that the plaintiff’s current and future marketability for alternate, durable and safe employment was negligible. He considered that the plaintiff was likely to remain very substantially disenfranchised from the workforce in the foreseeable future.
60I appreciate that Mr Hartley based his opinions upon the fact that the plaintiff is impaired bilaterally. It is to be remembered that the present assessment of the plaintiff’s condition and employability is focussed upon the injury to his dominant right upper limb. Many of the observations made by Mr Hartley seem to me to be equally applicable if only the plaintiff’s dominant right upper limb is considered.
61In presenting its case, by far the possible suitable occupation upon which the defendant placed the greatest emphasis was that of a Diverse Bicultural Worker. I would refer, for example, to T31 and following pages. Indeed, in putting the defendant’s case in his closing submissions, Mr Miles emphasised that the defendant’s case had not been run on the basis of jobs such as carpark attendant, cashier, sales and the like. Quite fairly and properly, he stated that “… we press the counselling welfare role as a primary part of our case” – see T41. He went on to say that the defendant’s case was that the ideal job for the plaintiff was in the welfare support area, albeit with some retraining – see T42. Dr Boffa, examining on behalf of the defendant, also approved the job of Bicultural Worker for the plaintiff, with his working up to full‑time duties. In his report of 23 August 2021, he specifically stated that the plaintiff was not fit for cashier and despatch packer roles, making the same observation concerning a suggested cashier job. He stated that the worker was fit for the suggested non-manual handling welfare support role, with relevant retraining. In a further brief report of 8 September 2021, he expressed the view that the plaintiff was capable of work as a Refugee Centre Diverse Bicultural Worker with Southern Migrant & Refugee Centre. Even then, he suggested that the plaintiff would benefit from English language skills training and a Certificate III in Community Services would also be helpful.
62The bottom line is that effectively the defendant argues that one particular job represents suitable employment for the plaintiff. I am of the opinion that it does not. I am quite satisfied that the plaintiff’s English skills are not great. He can get by without an interpreter, but is assisted by having one. I am not of the view that he has good English, and certainly not English which could be described as being very good or excellent. The only work which he has done in this country, performing it for many years, has been unskilled and comparatively poorly paid labouring. I attach no significance to the fact that he acted as a type of “de facto” primary school teacher in a refugee camp.
63I also attach no great importance to the fact that the plaintiff acts as an Elder in the South Sudanese community. There is no suggestion that this is paid work. The activities involved include such tasks as consoling people who have lost a loved one; on two occasions assisting in the arrangements for the transporting of a body back to South Sudan; sometimes assisting South Sudanese youths who get into trouble with the police, although apparently not communicating directly with the police – there is a type of community authority that does this; and, if required, generally giving some untrained assistance to members of the South Sudanese community, and particularly those who speak the Dinka language. Even then, the plaintiff has sworn that there are some occasions when his pain prevents him from engaging in these activities.
64None of this indicates to me that the plaintiff would qualify for or could perform the work upon which the defendant relies. Indeed, I am satisfied that the injury to his dominant right upper limb has rendered him totally incapacitated for employment, including work in the nature of a community guide welfare support role. I agree with the closing submissions of Mr Mighell that the plaintiff does not possess the training, experience or required level of English language that are prerequisites for obtaining such employment. That is in addition to the absence of any or any adequate computer skills or training.
65In relation to his dominant right upper limb, the plaintiff has discharged the burden or proof and leave is given to him to bring proceedings for both pain and suffering, as conceded, and loss of earning capacity.
(l) The left upper limb.
66Given that leave is given to the plaintiff in respect of his right upper limb, a detailed examination of the consequences of his left upper limb injury is not required. However, in my opinion the plaintiff would also have discharged the burden of proof when the consequences of the left upper arm injury are viewed separately. Again, leave in relation to pain and suffering is conceded. At times the plaintiff has stated that the pain in his left upper limb is marginally worse than in the right upper limb and it may be that problems in relation to the use of that limb are marginally greater. However, given the plaintiff’s employment history and particularly in this country, the restrictions and disabilities which result from the injury to the left upper limb seem to me to be of such magnitude as to render him totally incapacitated. The observations made earlier concerning his background, training, employment history and the like remain relevant. The same could be said in relation to the limited counselling role which he plays in the South Sudanese community.
67As earlier stated, the only medical practitioners to make meaningful comments about the injuries to the individual upper limbs and to make some assessment of work capacity in that regard are Dr Rowe and Mr Chehata. Considering the plaintiff’s left shoulder only, Dr Rowe expressed the view that the plaintiff would not be a safe employee in any position requiring unrestricted physical strength and capacity, and was likely to be precluded from performing his pre‑injury duties for the foreseeable future. He also stated that, as a consequence of the physical injury and impairment of the plaintiff’s left shoulder only, he was likely to be precluded from performing suitable employment for the foreseeable future, when taking into account his incapacity, age, education, place of residence, skill and work experience. The plaintiff has at best a theoretical capacity for employment “in so called suitable work”. Dr Rowe also observed that, given the type of work that the plaintiff was engaged in before his injury, separating his shoulder incapacities is quite a problematic issue.
68Mr Chehata expressed the view that the plaintiff had a chronic situation in relation to the left shoulder which was unlikely to change over time and had become permanent. He expressed the view that, having regard to that shoulder only, “… it is impossible that he would be likely to return back to any formal work”.
69When all of the above is taken into account, it seems to me that the plaintiff has a permanent incapacity for work as a result of the injury to the left shoulder and upper limb, viewed alone. As with the injury to the right shoulder, the left shoulder injury results in him being permanently and totally incapacitated for employment.
(m) Conclusion
70The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings in respect of pain and suffering in relation to the injuries to the right and left shoulders, this being by consent. Leave is also given to him to bring proceedings in relation to loss of earning capacity and in respect of the injury to each upper limb. I shall hear the parties as to the wording of those orders and as to any further orders that are required.
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