Margaret Goodwin v Gallagher Bassett Services Workers Compensation Pty Ltd

[2008] VMC 5

IN THE MAGISTRATES COURT OF VICTORIA

AT LATROBE VALLEY

WORKCOVER

Case No. W03010719

Margaret Goodwin	Plaintiff
v
Gallagher Bassett Services Workers	Defendant
Compensation Pty Ltd

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MAGISTRATE:	S Garnett
WHERE HELD:	LaTrobe Valley
DATE OF HEARING:	17 & 18 June 2008
DATE OF DECISION:	3 July 2008
CASE MAY BE CITED AS:	Margaret Goodwin v Gallagher Bassett Services Workers Compensation Pty Ltd
REASONS FOR DECISION

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Catchwords: S 93CC – “current work capacity” – “no current work capacity” – a “degree of realism” required

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Carson
For the Defendant  HIS HONOUR:	Mr Batten

1. The issue to determine is whether Mrs Goodwin has a “current work capacity” or “no current work capacity” which is likely to last indefinitely in accordance with the provisions of the Accident Compensation Act 1985.

History

2.  Mrs Goodwin is aged 63 years and sustained injuries to her left shoulder in the course of her employment with St Lawrence Nursing Home on 11 May 2004.

3.  She commenced employment with the Nursing Home in December 1998 as a cook and as at the date of injury was working part time two days per week.

4.  On 11 May 2004, she dropped a loaf of bread on the floor, bent down to pick it up, and in the process of standing her shoulder made contact with a door handle whereby she sustained injury. She reported the incident and received medical advice within two days to the effect that she should take analgesics and pain killing medication. Despite ongoing pain and discomfort, she managed to keep working until 15 March 2005 when certified unfit for work. She then returned to work for a limited period and then remained off work again until 11 October 2005.

5.  She initially returned to work 3hrs for one day only performing modified duties and another employee provided assistance with the heavier tasks. Over time, her hours increased to 7 hours during the day in the kitchen but she was unable to cope so they changed to 5 hours kitchen duties and 2 hours attending to the residents needs. This arrangement continued until 15 March 2006 when her employer told her that if she could not work full hours in the kitchen she could not work at all. She has remained off work since that date and the Nursing Home closed down in July 2006.

6.  Mrs Goodwin received weekly payments until 2 October 2007 when they were terminated by the Agent on the basis that she had a current work capacity or that if she did not have a current work capacity it was not likely to continue indefinitely.

7.  The Agent also alleges in its Defence, that Mrs Goodwin’s incapacity is no longer due to the injury and that she has not made every effort to return to work in suitable employment.

8.  Mrs Goodwin was an honest and credible witness. She gave evidence that she continues to attend Dr Omifolaji on a monthly basis, takes up to 6 panadeine forte per day, receives physiotherapy and massage treatment each month and that there has been a slight improvement in her condition although she is still restricted in her household and daily living activities. She also gave evidence that she has become depressed because she cannot work and that when she discovered in 2007 that investigators were following her she became very upset and “paranoid”.

9.  Mrs Goodwin indicated she has looked for suitable work including at K-Mart, on the internet and the local papers but cannot find any, but noted, “I might get lucky”. She conceded that she has a history of depression for which she received treatment and that she would have continued working but for her employer’s decision in March 2006.

Medical Evidence

10.Mrs Goodwin tendered medical reports from Dr Omifolaji, Mr Hill Physiotherapist, Ms Dalton Psychologist, Professor Myers Medico Legal Consultant, Dr Gill Medico Legal Psychiatrist and Mr Dooley Orthopaedic Surgeon who examined her on behalf of the Agent for the purposes of an S 98C Impairment Assessment.

11.Dr Omifolaji has been Mrs Goodwin’s treating doctor since February 2004. The records from his clinic indicate that she was diagnosed as having depression in February 2004 and first complained to him about left shoulder pain in February 2005 some 9 months after sustaining her injury. A normal ultra sound and X-Ray scans supported his diagnosis that Mrs Goodwin suffered rotator cuff tendonitis of the left shoulder joint. Despite anti inflammatory and analgesic medication and physiotherapy treatment he is of the opinion that there has been minimal improvement in her condition over the years.

12.Mrs Goodwin has received physiotherapy and psychological treatment for a significant period. Her treating psychologist, Ms Dalton has been seeing her since December 2006 and has diagnosed that she suffers from moderately severe anxiety and depression.

13.Professor Myers examined Mrs Goodwin for medico-legal purposes on 23 October 2007 and diagnosed that she has a probable rotator cuff injury. He assessed her as having a 7% whole person impairment as a consequence of the left shoulder injury pursuant to the AMA Guides – 4th Edition.

14.Dr Gill Psychiatrist retained for medico legal purposes assessed her on 10 December 2007 and is of the opinion that Mrs Goodwin has an Adjustment Disorder with mixed anxiety and depressed mood because of her left shoulder injury. He assessed her as having a 15% psychiatric impairment.

15.Mr Dooley examined Mrs Goodwin on 25 September 2007 for the purposes of an impairment assessment. He is of the opinion that she suffers from adhesive capsulitis or a frozen shoulder because of the injury. Although he believes there is a reasonable chance of gradual improvement if she undergoes a regular exercise program, he assesses her as having 7% whole person impairment.

16.The Agent tendered medical reports from Professor Marshall, Dr Mutton Occupational Physician, Mr Gale General Surgeon, Dr Serry Psychiatrist and the clinical notes from the Breed St Clinic.

17.Professor Marshall examined Mrs Goodwin on 26 May 2005 and 9 February 2006, Dr Mutton examined Mrs Goodwin on 23 May 2007 and Mr Gale examined her on 22 April 2008. All doctors diagnosed that she sustained left rotator cuff tendonitis because of the incident on 11 May 2004 although Mr Gale opined that she has recovered from the physical condition and now suffers from chronic pain syndrome.

18.Dr Serry in his report 6 June 2008 stated that Mrs Goodwin has a chronic adjustment disorder with anxiety and depression consequential on the injury to her left shoulder and some features of traumatisation due to surveillance by investigators on behalf of the Agent.

19.In summary, the overwhelming medical opinion is that Mrs Goodwin has left shoulder tendonitis resulting in permanent whole person impairment (according to Professor Myers and Mr Dooley) and an adjustment disorder with anxiety and depression.

20.The medical evidence also indicates that Mrs Goodwin has a physical capacity for suitable employment in relation to her shoulder injury, no incapacity (Dr Serry) or temporary incapacity (Dr Gill) in relation to her psychiatric condition.

Vocational Evidence

21.Mrs Goodwin tendered a vocational assessment report from Ms Angel (Flexi Personnel) and the Agent tendered reports from Paul Hartley.

22.Ms Angel believes Mrs Goodwin has limited prospects of finding suitable employment or being re-trained and has limited transferable skills. She bases her opinion on Mrs Goodwin’s age – 63, her place of residence – Traralgon, her limited education – Form 4, having left school at 15, her limited work history – that of a cook or cleaner and the fact that she is computer illiterate and does not have clerical skills.

23.Mr Hartley agrees that Mrs Goodwin is unlikely to benefit from re-training and will find it difficult to obtain suitable employment having regard to; her age, injury, restrictions and lack of up to date skills or experience.

24.Mrs Goodwin gave evidence that apart from managing to perform voluntary work at Yalambi Nursing Home in the form of providing companionship to particular residents, she is unable to return to work.

25.Whilst I am mindful of the principles set out by the Court of Appeal in Barwon Spinners[1] in relation to “suitable employment” and the application of those principles to statutory benefit entitlements[2], a degree of reality must be applied for the concept and the Act to have practical and meaningful application. A “degree of realism” when considering the concept and application of suitable employment and capacity for employment is not new and has been applied by the courts before and after Barwon Spinners as I listed in my decision of Bos v Safeway[3].

[1] 2005 VSCA 33

[2] See Unreported Decision of Judge Wilmoth in Spoljaric v PBR Automotive Ltd 15 June 2005 and Judge G D

[3] Unreported. Dated 19 December 2007

26.Mrs Goodwin may well have a theoretical capacity for very restricted employment, but she has no realistic capacity, either now, or in the foreseeable future.

27.She does not possess sufficient skills, nor is she because of her limited education, employment background and age, suitable for re-training or effective rehabilitation as stated by Ms Angel and Mr Hartley.

28.She has difficulty coping with basic household chores and requires ongoing physiotherapy, massage and psychological treatment. In addition, she takes up to six panadeine forte tablets per day to cope with her pain.

ORDERS:

29.I am satisfied Mrs Goodwin remains incapacitated for employment because of her shoulder injury and consequential psychiatric condition and despite reasonable efforts by her to find “suitable employment”; she has been unable to do so. In reality, she has no current work capacity, which is likely to last indefinitely.

Lewis in Levey v Apex Printing P/L 31 October 2005.