Mollison v Victorian WorkCover Authority
[2020] VCC 193
•6 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-03920
| DENISE ERICA MOLLISON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 March 2020 | |
DATE OF JUDGMENT: | 6 March 2020 | |
CASE MAY BE CITED AS: | Mollison v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 193 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the right shoulder – return to work on modified duties – whether the plaintiff limited to twenty-one hours’ work per week – whether the plaintiff could work increased hours – agreement between the parties that if the plaintiff could work twenty-two and a half hours per week, her application would fail
Judgment: The plaintiff is granted leave to bring a proceeding at common law to recover damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Maurice Blackburn |
| For the Defendant | Mr D Churilov | Thomson Geer |
HIS HONOUR:
Introduction
1 The plaintiff is a sixty-four-year-old woman who suffered an injury to her right shoulder on 3 October 2015 when she was struck by automatic double doors as she was attempting to negotiate the doors.
2 The defendant conceded that the plaintiff’s pain and suffering consequences are “serious”. It denied that her loss of earning capacity consequences are “serious”.
3 At present, the plaintiff is working twenty-one hours per week in modified duties with Villa Maria Catholic Homes (“the employer”). She works three days per week and seven hours on each of those days. The defendant submitted that the plaintiff can work up to twenty-five hours per week. It was common ground that if I found that the plaintiff could work twenty-two-and-a-half hours per week, then she would fail to demonstrate the requisite degree of loss of earning capacity consequences when the relevant arithmetic calculation is undertaken.
4 Mr G Chancellor appeared for the plaintiff. Mr D Churilov appeared for the defendant.
The Plaintiff’s medical treatment
5 None of the plaintiff’s medical treatment was controversial. It is for that reason that I will summarise it briefly to provide some context to the ultimate issue which I need to determine.
6 The plaintiff saw Dr Arulanthu Devadass, general practitioner, on 8 October 2015. He accepted the findings on ultrasound that the plaintiff had suffered a large full-thickness tear of the supraspinatus. He treated her conservatively by prescribing painkilling medication and referring her to physiotherapy. At the suggestion of the physiotherapist, Dr Devadass referred the plaintiff to Mr Eden Raleigh, orthopaedic surgeon.
7 Mr Raleigh paid regard to imaging of the plaintiff’s right shoulder, and together with his clinical examination of her, concluded that she had suffered a full-thickness tear of the rotator cuff with retraction of it by 2 centimetres. He performed an arthroscopic repair on 21 January 2016. He subsequently reviewed her on a number of occasions. He last saw her on 19 January 2017.
8 On a review on 22 April 2016, Mr Raleigh noted that the plaintiff’s right shoulder was “quite stiff”. He referred her to have a hydrodilatation, which was performed on 9 May 2016. On a further review on 9 June 2016, Mr Raleigh made a similar finding, and referred her to have a further hydrodilatation, which was performed on 6 July 2016.
9 The only other active treatment which Mr Raleigh organised for the plaintiff was an ultrasound and cortisone injection into her right shoulder. At the time that was performed, the medical practitioner who undertook the ultrasound found a bit of tendinopathy and bursitis, but otherwise Mr Raleigh was satisfied that the tendon had fully healed. He was optimistic that there would not be any residual symptoms. He noted that she had an almost full range of movement. He recorded that she informed him that she was experiencing a “small amount of pain” above 140 degrees of elevation.
10 It is apparent from the clinical notes of the treating physiotherapists that the plaintiff reported having a number of residual consequences, among which were tightness, soreness and interference with sleep. She associated those symptoms with the work she was performing through 2017. The clinical notes of the physiotherapists conclude on 15 May 2017. That occurred because the relevant insurance agent denied any further entitlement to physiotherapy treatment. The plaintiff now pays for the manual therapy which she resorts to.
11 The plaintiff’s current treatment comprises her own attempts to maintain her right shoulder. She uses a TENS machine on a daily basis; has massage therapy, which she pays for; exercises in a hydrotherapy pool, and exercises in her home using pulleys and thread bands. She also resorts to the use of medication comprising Panadol Osteo (six per day); Mobic (one or two per day), and Voltaren cream which she applies to her right shoulder each morning.
The Plaintiff’s return to work
12 It is necessary to outline the plaintiff’s return to work and the work she is now performing, to provide the context in which to understand the opinions expressed by other examining medical practitioners.
13 The plaintiff was employed by the employer as a cook. After undergoing significant treatment for her right shoulder injury, she returned to modified duties as a lifestyle assistant in May 2016. According to a chronology which I was provided by the plaintiff, which I understood was also not controversial, the plaintiff:
· Returned to work as a lifestyle assistant, working two hours per day, three days per week, in late May 2016.
· Increased her hours of work to five hours per day, four days per week, in September 2016.
· Increased her hours of work to five hours per day, five days per week, in mid-November 2016.
· Ceased a Wednesday shift, thereby reducing her hours to five hours per day, four days per week, in late April 2017.
· Altered her days of work and hours of work to seven hours per day, three days per week, from February 2020 to the present time.
The medical opinions
14 The other medical opinions are likewise not controversial. There are undoubted differences of emphasis, but that is to be expected when opinions are expressed by medical practitioners from different medical disciplines.
15 Dr Devadass provided two reasonably comprehensive medical reports outlining the plaintiff’s treatment. In his last report, dated 24 February 2020, he considered that the plaintiff’s prognosis was fair. He remarked that she was coping well on permanent modified duties. He understood that she was working at least twenty to twenty-one hours per week as a lifestyle assistant.
16 Dr James Rowe, specialist occupational physician, examined the plaintiff on 3 December 2019. He understood that she was working twenty hours per week at the time when he examined her. According to the chronology, she was working five hours per day, four days per week, as a lifestyle assistant. The plaintiff told him that she could not work twenty-five hours per week. He considered that she was fit for work up to twenty hours per week, and he added that he considered that that was the limit of her capacity, and that her capacity was unlikely to change.
17 Mr Ash Chehata, orthopaedic surgeon, examined the plaintiff on 21 January 2020. His opinion is of marginal relevance because he was not asked to consider the plaintiff’s capacity for work, save in a general sense. Where his opinion is of relevance, concerns his opinion that she suffered a complication of severe adhesive capsulitis at one stage, which he considered has continued to the present time as chronic pain in her right shoulder, and the restriction, disability and incapacity which he considered was apparent, was permanent and would continue for the foreseeable future.
18 Dr Dominic Yong, specialist occupational physician, examined the plaintiff for the defendant on 13 November 2019. There is little in Dr Yong’s opinion which is controversial, except for two matters which I will deal with next. Dr Yong considered that the plaintiff required an activity-based program, which he considered would improve her functional capacity. In that respect, he said that she should continue with a home-based exercise program; do domestic tasks at home; be as active as possible within the limits of pain; do a daily walking program, and continue working, doing her work duties and hours of work.
19 It was on the basis of the plaintiff applying herself in the way which Dr Yong considered would be beneficial, that he concluded the plaintiff would have the capacity to participate in a graduated return-to-work program and could progressively increase her working hours back to “the pre-injury level”, and he considered that such an increase in hours could be achieved over a one to two-month period. His reference to pre-injury level of hours must mean twenty-five hours per week.
The Plaintiff’s evidence
20 Under cross-examination, some of the medical opinions were put to the plaintiff. For example the opinion of Mr Raleigh, who expressed some optimism that the plaintiff would continue to functionally improve. Mr Raleigh’s opinion needs to be seen in the context of reports of a number of residual consequences of tightness, soreness and interference with sleep resulting from the plaintiff’s right shoulder, which she reported to treating physiotherapists. Furthermore, it needs to be seen in the context of the plaintiff’s evidence that she did not experience the level of improvement which Mr Raleigh thought she would.
21 An application of this kind is trial by judge, not trial by medical practitioner. The opinions of the medical practitioners are evidence, forming part of the reasoning process of fact, degree and value judgement. It can, and often does, occupy a position of significant weight, but in this case, I am not convinced that it necessarily does.
22 The plaintiff struck me as being a highly-motivated person, whose creditworthiness and reliability were not impugned, and indeed, were not attacked to any extent at all.
23 Despite the difference of opinion relevant to how many hours per week the plaintiff can work, there seems to be harmony in the medical opinions that the plaintiff cannot work as a cook and can work in the modified duties of lifestyle assistant somewhere between twenty to twenty-five hours per week.
24 I do not accept the opinion of Dr Yong that the plaintiff requires an activity-based program of the kind he has referred to because she has endured surgery, post-surgical treatment, physiotherapy, and her own attempts to maintain her right shoulder, all of which strike me as being her valiant attempts to return her right shoulder to the best functional state that can be achieved. Additionally, she has altered her hours and days of work to maximise her capacity to work, and I will set that out in more detail next.
25 The plaintiff gave what I consider to be compelling evidence, that the best way she can achieve maintaining twenty-one hours per week is to have some relief in between her days of work. Working three days in an average working week means that she can punctuate each day of work with a day off. The day off is important to the plaintiff because it permits her to recover from the previous day’s work and enhances her capacity to continue to retain her job. It occurs to me that the plaintiff has undertaken a testing of what best suits her from the perspective of her physical tolerance.
26 I think this is a case, given the relative harmony in the medical opinions, that it is the plaintiff’s evidence which is critically important in determining whether she has made the efforts to return to hours of work which she can properly accommodate, given the nature and extent of her right shoulder injury.
27 I reject the opinion of Dr Yong that the plaintiff can work twenty-five hours per week. I prefer the evidence of Dr James Rowe that she is working to the limit of her capacity. Without saying as much expressly, it was the thrust of the plaintiff’s evidence that she is working to the limit of her capacity as a lifestyle assistant.
Conclusion
28 I will grant the plaintiff leave to bring a proceeding at common law to recover damages for her loss of earning capacity. I consider that the plaintiff’s loss of earning capacity consequences are “at least very considerable”. Additionally, I have reached the foregoing conclusions after having made the relevant comparison with loss of earning capacity impairments as I am obliged to do.
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