Markovska v Famco Lighting Pty Ltd and VWA
[2012] VCC 48
•13 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-06214
| VIOLETA MARKOVSKA | Plaintiff |
| v | |
| FAMCO LIGHTING PTY LTD | First Defendant |
| and | |
| VICTORIA WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 & 19 January 2012 | |
DATE OF JUDGMENT: | 13 February 2012 | |
CASE MAY BE CITED AS: | Markovska v Famco Lighting Pty Ltd & VWA | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 48 | |
REASONS FOR JUDGMENT
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Catchwords: Section 134AB(16)(b) of the Accident Compensation Act1985 (Vic) – Pain and suffering and pecuniary damages – Injury to the shoulders – Issue between the parties as to plaintiff’s work capacity and calculations of loss of earnings .
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Keogh S.C. with Mr A. Fraatz | Slater & Gordon Lawyers |
| For the Defendant | Mr J. Simpson | Thomson Lawyers |
HER HONOUR:
Introduction
1 This is an application for leave to bring proceedings for the recovery of damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (Vic) as amended (“the Act”) for an injury to the plaintiff’s right and left shoulders, which allegedly occurred during the course of her employment with the defendant between 12 February 2001 and 16 November 2006.
2 The plaintiff seeks leave to bring proceedings for both pain and suffering damages and pecuniary loss damages within the meaning of s.134AB(37) of the Act.
The issues
3 There is no issue regarding the plaintiff’s claim that she suffered injury to her shoulders, in particular her right shoulder, during the course of her employment with the defendant.
4 The issue in this case is with regard to the plaintiff’s work capacity. The plaintiff’s case is that she no longer has the capacity to do her pre-injury work or indeed any work of a physical nature.
5 The plaintiff has completed a number of courses which will hopefully allow her to obtain work of a sedentary nature. However it is contended that the maximum hours she will be able to work in a receptionist/clerical role is 20 hours per week, which results in a loss of earning capacity of 40% or more.
6 The defendant, on the other hand, contends that the plaintiff is still capable of process work of 15-20 hours per week, albeit with restrictions. In a sedentary job, she is capable of performing 20 hours a week and does not meet the 40% threshold.
7 The plaintiff gave evidence and was cross-examined. Otherwise both parties relied on the medical reports contained in their respective court books. In addition at the hearing counsel for the plaintiff tendered a report from Flexi Personnel and tendered submissions on the plaintiff’s loss of earning capacity. Counsel for the defendant tendered a written outline of the defence submissions on loss of earning capacity.
Background history
8 The details of the plaintiff’s background history were set out in her affidavit sworn on 16 July 2010. Details of her more recent history were contained in a further affidavit sworn on 19 December 2011.
9 The plaintiff was born in Macedonia on 2 January 1967. She is now 43 years old. After completing the equivalent of year 8 in Macedonia, she did a three year course in fashion design after which she worked in the clothing industry.
10 The plaintiff migrated to Australia on 18 August 1988. She is married and has two children, Oliver, aged 27, and Adriana, aged 20.
11 In 1997 the plaintiff’s husband was diagnosed as suffering from a thyroid tumour and he underwent surgery in 1997 and 1999. He subsequently developed a chronic depressive state and hasn’t worked since about 1997.
12 Due to her husband’s condition, the plaintiff was the breadwinner of her family and her history of employment from 1992 to 2000 is detailed in her first affidavit. She worked in various physical roles, largely on a part-time basis while raising her children.
13 The plaintiff has worked for the defendant on two occasions, the second of which commenced on 12 February 2001. She was employed by the defendant at its premises in Collingwood doing process work, which involved assembling printed circuit boards (“PCBs”), sitting at a workstation. There are photographs of the workstation in the plaintiff’s court book taken in or about 2005 (pp.11 and 12).
14 The plaintiff’s main duties were performed in a small area of the factory, seated at a workbench. Her job was to assemble the various different PCBs using different sized resistors and electrical components stored in small clear plastic containers above her workstation. The plaintiff had to raise her arms to about shoulder height to obtain the relevant resistors from the first shelving unit, but above shoulder height to access the resistors placed on top of this shelving unit.
15 The plaintiff’s work hours were 40 hours a week, Monday to Friday. However she also worked most Saturdays and performed some overtime during the week so that she often worked around 50 hours per week.
Circumstances of injury
16 In or about 2004 the factory was very busy and the plaintiff completed a lot of overtime. The onset of symptoms in her right shoulder coincided with the increase in the workload at the factory. She first noticed some pain in her right shoulder when reaching for components stored high on top of the first storage shelf unit depicted in the photograph referred to earlier.
17 She initially thought that the pain in her right shoulder was due to the long hours she was working. It was there all the time but mainly when she was lifting her right arm for the components stored in the shelving above shoulder height.
18 By the middle of 2005 the plaintiff was experiencing an increase in symptoms in her right shoulder, particularly with repetitive movement and lifting her arm above shoulder height. She had quite a bit of pain in her right shoulder and tried to decrease her overtime. The plaintiff complained a number of times to her supervisor, stating that she could not reach the top components and asking them to do something about this, however nothing was done at this time by the employer to modify the workstation.
19 In August 2005 the plaintiff informed her supervisor of pain in her right shoulder. By this time the pain in her right shoulder had worsened and her supervisor tried to help her by giving her easier boards to assemble. Later in or about mid-2006 she also started to feel pain in her left shoulder. By this time she was favouring her injured right shoulder by using her left arm to raise her right arm up to the high component shelving units.
20 On or about 10 August 2006 the plaintiff reported the injury to her right shoulder to her supervisor. At that stage she had real difficulties in reaching the highest components required for assembling the PCBs. She asked to be taken off soldering machine duties and to be given easier boards but her duties were not altered as requested.
21 In or about mid-2003 the plaintiff experienced some right shoulder discomfort and attended Dr Pinto of the Rochdale Medical Centre, who was her treating GP. The plaintiff underwent an ultrasound on or about 26 June 2003, which revealed no abnormality and she continued with her normal duties.
22 In or about August 2005, as the plaintiff was experiencing increased symptoms in her right shoulder, she commenced physiotherapy treatment. In August 2006 she saw Dr Dana Skodric‑Hadzimahmutovic (“Dr Skodric”) for the first time in relation to the pain in both her right and left shoulders.
23 On 24 August 2006 an ultrasound of the plaintiff’s right shoulder revealed “suspicion of supraspinatus intrasubstance tear,” while on 30 October 2006 an ultrasound of the left shoulder revealed “a focal tear in the supraspinatus tendon.”
24 In October 2006 the plaintiff went on Workcover certificates specifying modified light duties and her GP recommended that she take some time off work. When there was no improvement to her injuries and pain, the plaintiff lodged a Workcover claim in November 2006.
25 Although the plaintiff was certified to perform only light duties, she was put in another area to help in assembling larger industrial lighting units. This job actually involved heavier lifting than her usual duties. She completed these duties for approximately one week and her left shoulder started to swell. She went back to her previous job but the pain was too much.
26 By November 2006, depending on the workload, the plaintiff had a great deal of pain in both her shoulders. By this stage her left shoulder was swollen. The pain in both shoulders was affecting her sleep. She had pain at all times and was exhausted. At times she virtually could not lift her right arm above shoulder height unassisted. She ceased work on 16 November 2006.
Plaintiff’s efforts at re-education
27 The plaintiff has not returned to work for the defendant since November 2006 and her employment was terminated in 2009. However since then she has not been idle as she has attempted to undertake re-education from her own resources. The plaintiff has completed a Certificate II in Business at the Northern Melbourne Institute of TAFE (“NMIT”) in Preston over a six month period from mid-2010. Her results included satisfactory completions, passes and three distinctions.
28 The plaintiff has also sought to improve her English. In the last six months of 2011 she attempted to complete a course in Adult English, again at NMIT in Preston. This involved her doing some work on a computer, typing over a period of hours. Unfortunately she suffered significant flare-up of her symptoms, which was the reason for the MRI scan in August 2011.
29 While the plaintiff persisted with the English course, the flare-up caused her problems and she could not successfully complete the course. Out of ten subjects, she only completed two and has eight yet to go.
30 The plaintiff hopes to undertake a Certificate III in Business, which commences in February this year. However, she is anxious about having another flare-up. She is also keen to complete a Medical Receptionist Certificate at TAFE, which is a three month course.
Medical opinion
31 A report from Symbion Imaging dated 27 December 2006 concluded, with respect to an MRI of the left shoulder, that there was:
“1. Partial thickness bursal surface tear of the mid fibres of the supraspinatus at the critical zone, measuring approximately 6 x 8mm in maximal dimension (ML x AP) and associated subacromial bursitis. No discrete full thickness tear.
2. No intra-articular pathology of the gleno-humeral joint.”
32 While the report from Symbion Imaging dated 28 December 2006, regarding an MRI of the right shoulder, concluded that there was:
“1. Constellation of tendinosis and bursal surface fraying of supraspinatus, enthesopathy of the greater tuberosity and small antero-lateral spur formation of the acromion is compatible with impingement.
2. No internal derangement of the gleno-humeral joint.”
33 The conclusions of the most recent MRI of the right shoulder, dated 31 August 2011, were:
“1. Diffuse high grade tendonitis of the supraspinatus tendon, with a superimposed 0.7 cm x 0.7 cm intrasubstance and bursal surface tear. It occurs at the anterior foot plate insertion of the supraspinatus. Whilst it does not involve 100% of the vertical tendon fibres, it is not strictly full thickness, as it does not appear to contact an articular surface.
2. Moderate subacromial bursitis.
3. Mild diffuse tendonitis of the infraspinatus and subscapularis tendons, without a discrete tear.
4. Thickening of the acromial attachment of the coracoacromial ligament. This can be associated with the clinical diagnosis of impingement.5. Mild chronic rotor interval synovitis.”
34 The plaintiff relied on three reports from Dr Karlov, a consultant physician whose diagnosis was of “bilateral rotor cuff syndrome due to the involvement of a variety of the rotor cuff muscles”. In addition a “traumatic synovitis of the acromioclavicular joint”. In his opinion, the plaintiff would need surgery in the future.
35 In Dr Karlov’s report of 11 June 2008, his opinion as to the plaintiff’s work capacity was that in view of the ongoing symptoms in her right shoulder she would be unable to perform her pre-injury duties. This would result in aggravating the pathology of the right shoulder so that she would increasingly rely on her left arm which would not be able to stand that sort of strain.
36 In Dr Karlov’s opinion, the plaintiff would also have difficulty performing clerical duties because she would have difficulty with reaching or rotating the shoulders or elevating her arms which would limit her usefulness in clerical work.
37 The plaintiff also relied on two reports from her treating doctor Dr Skodric, dated 4 July 2008 and 16 June 2009. On 4 July 2008 Dr Skodic reported that the plaintiff continued to suffer from constant pain in both shoulders which was waking her at night. The pain and restricted movements of her arms were also causing restrictions in the plaintiff’s everyday life. Due to the chronic pain she had developed anxiety with a depressed mood and had been referred to a psychiatrist for opinion and management. Due to the above problems, she was unable to go back to her pre-injury duties. The report of 16 June 2009 was to the same effect.
38 There were two reports from physiotherapists who had treated the plaintiff. Mr MacDonald, who saw the plaintiff once, and Mr Steve Giokos, who had treated her from 6 November 2006 to 22 February 2008.
39 In his report of 31 July 2008, Mr MacDonald was of the opinion that “most likely” the plaintiff sustained the shoulder injuries as a result of her assembly duties at work. In his opinion, she would be unable to successfully attempt a return to pre-injury duties. Her capacity to work would be limited because she could not tolerate any form of employment that involved significant manual heavy or repetitive tasks. While possibly she could attempt job retraining or lighter forms of employment, he could not guarantee that she would be able to successfully tolerate this type of work.
40 On 11 August 2008 Mr Gioskos reported that the plaintiff would have “a life-long deficit” in the function of her shoulder. She would not at any time be able to return to her pre-injury duties and would not be able to return to any work requiring repetitive upper limb movement or lifting.
41 In his more recent report of 9 March 2007, although he retained the opinion that the plaintiff was unfit for her pre-injury duties, Mr Gioskos believed that she would be able to return to some work of moderate intensity following a rehabilitation program.
42 The plaintiff saw Mr Owen, an orthopaedic surgeon on the recommendation of Dr Karlov. In his report of 2 July 2008 Mr Owen diagnosed the plaintiff as “having signs of a rotator cuff impingement with a positive ultra-sound showing evidence of this condition”. He was of the opinion that she required a decompression and repair of the cuff, probably on the right side first. She would be in hospital for one to two days and would be capable of returning to work two to three months post surgery.
43 In his report of 15 August 2008, Mr Owen was of the opinion that the plaintiff could do some work, but any work that involved reaching out or reaching overhead or lifting at or above the level of her shoulders would be painful and he would not advise her to return to that. He thought that following appropriate surgery it was possible that the plaintiff would be capable of returning to her previous employment, but that she would “need at least six months because the surgery is notoriously painful and recovery protracted.”
44 The plaintiff also saw Mr Miller, another orthopaedic surgeon, who on 3 March 2010 diagnosed significant rotor cuff pathology. Without surgery he believed that the prognosis for her shoulders was only fair. Even if her condition would be improved with successful shoulder surgery, it was unlikely to ever allow her to return to work that involved significant amounts of repetitive activities or to use the arms in the above-shoulder position.
45 In his most recent report of 26 September 2011, Mr Miller stated:
“In terms of the right shoulder this lady is not fit for pre-injury work on a significant basis. I would estimate the maximum she could work would be two hours a day, five days a week, that is, 10 hours per week. In terms of the left shoulder, I believe the situation is similar. I note she has only moderate language skills and a return to work will be problematic in this case due to the right shoulder. In terms of the left shoulder the situation is similar. Both shoulders would impact on domestic and recreational activities on an ongoing basis and she has significant pain and discomfort which would continue.”
46 On 16 June 2011 Dr Horsley, an occupational health and rehabilitation specialist, diagnosed the plaintiff with a “symptomatic bilateral shoulder disability”. In addition, with an “adjustment disorder with depressed and anxious mood” which had been diagnosed by a psychiatrist. Given the length of time since the injury and the ongoing nature of the symptoms, Dr Horsley believed that the symptoms were likely to persist and that the plaintiff was unlikely to be able to return to her previous role as a process worker.
47 In proffering this opinion, Dr Horsley referred to the critical physical demands of such a role, involving repetitive activities involving the plaintiff’s bilateral arms which without surgical management were likely to aggravate or prevent her from being successful in that endeavour.
48 For this reason, Dr Horsley considered that it was appropriate that the plaintiff was retraining in a more sedentary clerical-type role and that without surgery her opportunities for redevelopment lay in a sedentary environment. In relation to work she stated:
“On the basis of her right shoulder injury, I believe she does have the capacity for work. She attended a TAFE course from 9:00am until 2:00pm / four days per week which probably represents her capacity in a more sedentary role. In a process environment, her capacity for work is likely to be less. It is likely to be in the vicinity of 15 to 20 hours. Returning to process work is likely to aggravate her right shoulder in particular.”
49 Dr Horsley also stated:
“Taking into account her left shoulder alone, there is less irritability. Her capacity is probably for greater hours; however in whatever environment she works she would probably be using both shoulders and her right shoulder will be the limiting factor.”
50 And:
“I believe with re-training she will develop increasing work capacity. Her work capacity will depend upon her ability to improve her English skills and upgrade to Certificate III in Business to allow her to work in a more sedentary environment.”
51 While I have not taken the psychological or psychiatric consequences into account in determining this application, I note for completeness that Mr Tipirneni, a consultant psychiatrist, diagnosed the plaintiff as having a “depressive mood, depressive ideas, ongoing pre-occupation about Workcover issues and chronic pain and ongoing stress”. He is seeing the plaintiff every three to four weeks and offering her the support of psychotherapy, self-management skills and medication.
52 The defendant had the plaintiff assessed by Professor Ivor Jones, a consultant psychiatrist who diagnosed her current condition as Adjustment Disorder with Anxiety and Depression. From a psychiatric point of view, following rehabilitation she would be fit for suitable employment even though symptoms remained.
53 With respect to the plaintiff’s capacity to perform work of a physical nature, the defendant relied on the Medico-legal reports of Dr Phillip Mutton, Dr Michael Bloom, Dr Michael Bowles and Mr Robin Williams.
54 In his report of 15 December 2006 Dr Mutton was of the opinion that, based on her presentation, the plaintiff had a capacity for physical work with restrictions to limit her work to light bench work without moving her arms above mid-chest height. In addition her work capacity was restricted to a weight limitation of two kilos in each upper limb independently with no forward elevation or adduction of the shoulders beyond mid-chest height. The plaintiff could otherwise work full-time within those restrictions.
55 In his report of November 2007 Dr Michael Bloom reported that the plaintiff was not fit for pre-injury or unrestricted duties now and that the long-term prognosis was uncertain. At that stage he believed that it was unlikely that the plaintiff would be fit for unrestricted duties even in the longer term.
56 However, in his second report of 31 March 2008 Dr Bloom concluded that the plaintiff was able to work safely with the following physical constraints:
1.Avoid handling items weighing greater than approximately two kilograms.
2.Avoid elevation of both elbows or reaching with either arm.
Dr Bloom considered that the primary barrier to the plaintiff’s rehabilitation was motivational. Duties he considered to be suitable for her return to work included battery spot welding, battery packing and wire crimping.
57 In his reports of 2 April 2009 and 11 May 2009 Dr Michael Bowles was of the opinion that the plaintiff had a capacity for employment. Her shoulder complaints could be negated by keeping the elbows by the side. She could continue on light assembly work with restrictions of no above horizontal use of her arms.
58 The defendant also obtained two reports (11 November 2010 and 16 November 2011) from Mr Robin Williams, a consultant orthopaedic surgeon, who diagnosed rotor cuff tendonitis and subacromial bursitis in both the right and left shoulders. In his opinion, the duties the plaintiff performed at work initiated her symptoms affecting both the shoulders. With respect to her work capacity, the plaintiff had a capacity for sedentary duties involving minimal elevation of her upper limbs at the shoulder.'
Return to Work Plan and vocational reports
59 The Return to Work Plan of 3/5/07 included battery assembly duties, spot welding of battery packs, soldering of wires on battery packs and heat shrinking battery packs. These work stations were considered to be appropriate for the plaintiff on the basis that the duties did not involve any elevation of the elbows or reaching and loads greater than 500g were not held.
60 In a report from Work Focus Australia Pty Ltd, dated 17 March 2009, the jobs of kitchen hand, packer and cleaner were identified as being vocationally appropriate for the plaintiff based on work capacity and employment availability and training requirements. In making this assessment, the author of the report referred to Dr Blooms opinion on 31 March 2008 that:
“the primary barrier to the plaintiff’s rehabilitation were undoubtedly motivational and that the duties inspected are considered to be well within her safe physical capacity and do not involve any further risk of aggravation or exacerbation of her shoulder conditions”.
Plaintiff’s evidence
61 With respect to her current treatment, the plaintiff’s evidence was that she continues to attend with Dr Karlov about once every six weeks for review, and twice a month with Dr Skodric. She was also seeing a psychiatrist, Dr Tipirneni, about once every four to five weeks. Her current medication included Avanza, Mobic, Celebrex, and the pain killers Panadeine or Panadol when required (transcript p. 16).
62 The plaintiff has no current plans to have any surgery, as she was concerned about the potential and actual consequences of the surgery (first affidavit p.4- and transcript p. 51). Sleep was a problem for her due to the pain in her shoulders and the combination of the restriction in movement, pain and exhaustion meant that she was no longer as active.
63 The plaintiff’s social, recreational (in particular cooking and cake-making) and working life had all suffered due to her injury. Her children did most of the shopping and she could not “do a quarter of the house work she used to do”. She felt like she was “a different person” because of her shoulder injuries (first affidavit para. 42 and transcript pp. 51-53).
64 When the plaintiff was cross-examined about returning to work for the defendant doing other assembly process work, such as battery spot welding, packing and crimping, the substance of her evidence was that it was not just the lifting which caused her problems, but also the repetitive nature of the jobs (transcript p. 34).
65 When defence Counsel asked the plaintiff:
Q: “If you could avoid lifting either arm but still work with your hands in light assembly work, so avoiding lifting with either arm but still assembling light work with your hands, do you consider that you have the capacity to do that?” (P. 38 of the transcript)
The plaintiff replied:
A: “The problem is that, you know, it is a repetitive job and it’s not just the lifting and depending how heavy it is.”(Pp. 38-39 of the transcript)
66 The plaintiff’s evidence was that that the reason she was persisting with the education training and business certificate at the TAFE course was because she was hoping to obtain a receptionist or clerical-type position after she finished her studies. When it was put to her by defence Counsel that this was with a view to enabling her to work for as many hours per week as she was able to achieve her evidence was that she was “hoping for 10-15 hours a week” (p. 40 of the transcript).
67 When it was put to the plaintiff that Dr Horsley believed that her work capacity was likely to be in the vicinity of 15-20 hours, the plaintiff said she would like to try to work for 20 hours. The plaintiff hoped that if her health was better she could work more hours but she could not predict now if she would be able to increase from 15 hours to 20 hours (p. 45 of the transcript).
68 When the possibility of working 30 hours was raised, the plaintiff’s evidence was that she was not able to work those long hours involving her shoulders. When it was put to her that she wouldn’t know until she actually tried the plaintiff replied, “Yes I know because I have school and I have had that experience” (p. 47 of the transcript).
69 The plaintiff’s evidence in re-examination with respect to “that experience” was that when she was doing the English Certificate II course she was using the keyboard and trying to improve her typing. As a result her shoulder became inflamed and the maximum she could type was 10-15 minutes (p. 48 of the transcript).
70 When Counsel for the plaintiff asked her:
Q. “How are you going to go on the computer if you have a problem with your shoulder after only 10 or 15 minutes on the keyboard?
71 The plaintiff relied:
A. “That’s where it’s hard, but my point was, I don’t want to stay at home, I want to try something and have a job in the future.”
Loss of earning capacity
72 The critical issue in this application is whether the plaintiff has discharged her onus of satisfying s.134AB(38)(e) of the Act to entitle her to a serious injury certificate for pecuniary loss. The Act requires the plaintiff to establish that at the date of hearing she has a loss of earning capacity of forty per cent or more, measured according to the matters set out in sub-s.(f) of s. 38.
73 This requires a comparison of two matters:
(a) The income the worker is earning or is capable of earning at the date of the hearing (the after injury earnings);
and
(b) the income the worker was earning or was capable of earning during that part of the period within three years before and three years after the injury as most fairly reflects the workers earning capacity had the injury not occurred .
Case for the defendant
74 With respect to the determination of the plaintiff’s without injury earnings, Counsel for the defendant referred me to and relied on Acir v Frosster Pty Ltd [2009] VSC 454, where Forrest J (at [158] to [179]) discussed the concept of “without injury earnings.” Forrest J accepted, consistent with the second reading speech, that:
“In respect of the three years after the injury, the earnings and/or capacity for earnings but for the injury will enable the court to have regard to the probable increases or decreases in earnings that may have occurred or the achievement of other employment opportunities within that time had the injury not occurred.”[1]
[1]At [162]
75 The figures provided by the defendant were :
Year
Worker’s gross earnings per annum (Including O.T.)
Famco hourly rates
Famco gross earnings per annum based on Famco hourly rates
(Excluding O.T.)
2003
$28,537
2004 $33,487 2005
(10 August 2005)
$31,719 $12.78 2006 $31,771 $13.29 $27,643 2007 $13.89 $28,891 2008
(10 August 2008)
$14.52 $30,202 2009 $15.90 $33,072
76 The figure submitted by the defendant to fairly represent the plaintiff’s without earning capacity was the 2006 earnings of $31,771.00. This figure was submitted to be above the averaged out figure for 2003-2006, which was calculated by the defendant to be $31,048 but on my calculations to be $31,378.
77 That figure of $31,771.00 in 2006 was predicated on gross earnings of $27,643.00 at the rate of $13.29 per hour for a 40 hour week. What took it up from $27,643.00 to $31,771.00 was overtime. The defendant had not taken out the overtime because it was accepted that it was part of the plaintiff’s capacity at the time.
78 The report from Flexi Personnel detailed the current hourly pay rate for a clerical office worker holding a Certificate II in Business and also the hourly pay rate of a worker holding a Certificate III in Business. The hourly rate for a worker with a Certificate II in Business is $18.05. The hourly rate for a worker with a Certificate III in Business (Level 3 employee) is $19.07. The hourly pay rate for an employee classified as Level 4 is $20.03.
79 On the basis that the plaintiff was capable of completing Certificate III in Business, earning at the rate of $19.07 per hour (for a 20 hour week), her earnings would be $19,833. As 60% of $31,771.00 produces a threshold figure of $19,062.60 Counsel for the defendant submitted that the plaintiff’s after injury earning capacity exceeded the threshold by approx $780.00. Once again my calculations differ in that the figure I reach is $770.20.
80 In particular, Counsel for the defendant relied on the last paragraph on p. 8 of Dr Horsley’s report (see p. 10 of judgement) to submit that the plaintiff had the capacity to do 15-20 hours per week in a process environment and 20 hours per week in a clerical role (transcript pp. 59-62).
81 As in her final paragraph on p. 9, Dr Horsley believed that “with re-training” the plaintiff would develop “increasing work” capacity it was submitted further that 25hrs = $24,791.00, or even 30hrs = $29,749.00 was foreseeable in a sedentary role.
82 The defendant also relied on the opinions of Dr Mutton, Dr Bloom, Dr Bowles and Mr Williams as supporting the proposition that “properly restricted in a physical way, the plaintiff had a very good physical capacity to do receptionist-type, administrative-type work” (transcript p. 62).
Case for plaintiff
83 While the defendant relied on 10 August 2005 as being the date of the plaintiff’s injury, Counsel for the plaintiff submitted that November 2006, when the plaintiff ceased work for the defendant should be accepted to be the date of the injury. This was because the plaintiff’s injury was a gradual process injury the development of the which continued for the duration of her employment.
84 The plaintiff’s case was that, absent the injury, she would have continued in her employment with the defendant working full-time plus overtime as available. In accordance with Acir’s case, it was submitted that account should be taken of any increase in pay rates that “were anticipated to occur or did occur within that three year period”.
85 In 2006 the hourly rate of pay was $13.29 which by 2009 had increased to $15.90. This reflected a percentage increase of 19.64% over the three year period. The 19.64% increase on the 2006 gross earnings resulted in a figure of $38,010. This figure was submitted to most fairly represent the plaintiff’s pre-injury earnings.
86 With respect to her after injury capacity, the plaintiff’s case was that the only realistic avenue that she could pursue was employment of a sedentary nature. She could not go back to process work due not only to the restrictions on how high her arms were lifted, but also due to the repetitive use of her arms.
87 The plaintiff’s interpretation of Dr Horsley’s report (p. 8) was that her reference to 15-20 hours referred to the plaintiff’s ability to perform clerical work. In support of this interpretation the plaintiff relied on paragraph 5 on p. 8 of the report, where Dr Horsley said explicitly:
“Mrs Markovska is unlikely to be able to return to process work, particularly the type of process work she did at Famco Lighting.”
88 In addition Counsel for the plaintiff submitted that the Court should be cautious about coming to the conclusion that the plaintiff could necessarily work 20 hours. This was because:
· Dr Karlov had expressed reservations about the plaintiff’s ability to perform clerical work;
· the plaintiff had suffered a flare-up in 2011 when trying to increase her capacity on the keyboard;
· the plaintiff’s capacity to complete further training was dependant on improvement in her English literacy skills;
· Study at TAFE for 20 hours was unlikely to be as onerous as work and her ability to re-enter the work force was dependant on upon an improvement in her English literacy skills .
89 The plaintiff’s case was that, even accepting that she could do 20 hours per week in clerical\receptionist work, this capacity for employment would yield her an earning capacity below the 60% threshold.
90 The two pay rate figures ($19.07 per hour and $20.03 per hour) which were applicable to a person who has completed a Certificate III in Business or an equivalent qualification for a 20 hr week and resulted in gross earnings of $19,832.80 and $20,831.20 respectively. As 60% of $38,010.00 was $22,800.00 the plaintiff was under the threshold.
Finding
91 There was no issue in this case regarding the nature and cause of the plaintiff’s injury. I find on the balance of probabilities that the plaintiff suffers from rotator cuff pathology in both her right and left shoulders, including a partial thickness tear (in her left shoulder), a bursal surface tear (in her right shoulder), tendonitis, bursitis and impingement syndrome with weakness and loss of movement in the function of both her left and right shoulders.
92 The plaintiff’s injury and the resultant impairment are permanent and arose out of or in the course of her employment with the defendant on or after 20 October 1999. More specifically, it was a progressive injury from the nature of her work for the defendant from 12 February 2001 to 16 November 2006.
93 I found the plaintiff to be a credible and honest witness and I accept her evidence that due to the injuries to her shoulders she is no longer capable of performing her pre-injury work or any other work of a physical nature. I accept that this is not only due to the difficulties she had with reaching above shoulder height but also because of the repetitive nature of process work.
94 The plaintiff is supported by Dr Karlov, Mr MacDonald, Mr Miller and Mr Gioskos, who are all of the opinion that the plaintiff can no longer do such work. Dr Karlov even thought that she would have difficulties in performing clerical duties because she would have “difficulty with reaching or rotating her shoulders, or elevating her arms which would limit her usefulness in a clerical work”. In addition Mr MacDonald thought that “even in lighter employment there was no guarantee” that she would be able to successfully tolerate this work.
95 Regarding the defendants submission that Dr Horsley’s opinion was that the plaintiff still had a capacity for 15-20 hours doing process work, on reading the report as a whole it is apparent that Dr Horsley considers that the plaintiff is unlikely to be able to return to process work.
96 On p. 7 of her report, Dr Horsley stated:
“Mrs Markovska is unlikely to be able to be able to return to her previous role as a process worker. The critical demands of such a role involving repetitive activities involving her bilateral arms without surgical management are likely to aggravate and prevent her from being successful in that endeavour it is appropriate that she is training in a more sedentary role.”
97 In accepting that the plaintiff cannot return to her pre-injury work or any process work, including the work referred to in the ‘Return to Work Plan,’ I reject the opinions of Dr Bloom, Dr Mutton, Mr Williams and Dr Bowles. I consider that the restrictions they impose make it unrealistic for the plaintiff to return to such work. In addition, they do not sufficiently take into account the repetitive nature of such work.
98 I also reject the conclusion in the assessment by Work Focus Australia, that the plaintiff could work as a cleaner, kitchen hand or packer. I find it difficult to imagine how the plaintiff could perform such work if she adopted the restrictions (elbows to her side, no horizontal use of her arms, no lifting in excess of 2 kilograms) suggested by Dr Bloom and Dr Bowles. Whilst being an ideal candidate for Riverdance perhaps, the ability of the plaintiff to successfully perform the tasks as set out is difficult to imagine.
99 The plaintiff is to be commended for her efforts to retrain in a more sedentary job and I accept that she is capable of working in a receptionist/clerical type role. With respect to her hours, the plaintiff’s evidence was that she thought she could work for 10-15 hours. Dr Horsley was of the opinion she could work 15-20 hours.
100 I accept with some reservations that the plaintiff has a capacity to work in the order of 15-20 hours. The reservations being due to the matters referred to above (at p. 21 of this judgement), in particular the difficulties that the plaintiff experienced with her shoulders when undertaking the English course and Dr Karlov’s opinion regarding the plaintiff’s limitations in a receptionist/clerical role.
101 The plaintiff was in settled employment and had a settled pattern of work. I accept that it is appropriate to adopt the figure of $38,010 as the 2009 earning capacity of the plaintiff and as the figure which most fairly reflects the plaintiff’s without injury capacity to earn in the relevant period. This figure takes account of the increases in hourly rates which you would expect to occur.
102 With respect to the income the plaintiff is capable of earning after injury on the hourly rates of pay ($19.07-$20.03) provided for a person who has completed a Certificate III in Business or the equivalent the plaintiff’s gross earnings for a 20 hour week would be $19,832.80 and $20,831.20 respectively. As 60% of $38,010 is $22,806, her employment in the clerical field will yield her an earning capacity below the threshold.
103 The figure of $38,010 included overtime. If overtime is excluded, then the plaintiff’s earning capacity is reduced to $33,072. 60% of that figure is $19,843.20, so the plaintiff is still ($10.40) below the 60 % threshold. If the plaintiff was only to be capable of working 15 hours a week at $19.07 her earnings would be $14,874.60 which is well below the threshold.
104 Consequently I find that she has satisfied the requirements of 134AB(38)(e) of the Act and that as at the date of the hearing she has a loss of earning capacity of 40% or more and that loss will continue permanently.
105 For an injury to be a serious injury it has to be a cause of the consequences that are serious. It does not need to be the sole cause (Grech v Orica Australia P/L (2006 14 VR 602). While the right shoulder appears on the evidence to be the major cause of the plaintiffs problems, I accept that the injury to both shoulders is a cause of her serious impairment and contributes to the serious injury.
106 I accept the plaintiff’s evidence regarding the impact the impairment of her shoulders has had upon her daily life and domestic activities. I am satisfied that the consequences to the plaintiff of the impairment or loss of body function of her shoulders resulted in pain and suffering that when judged by comparison with other cases in the range of possible impairments or losses of a body function is fairly described as being more than significant or marked and as being at least very considerable.
107 Pursuant to s 134 AB(16) of the Act, I grant leave to the plaintiff to bring proceedings for the recovery of damages in respect of pain and suffering and pecuniary loss.
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