Nicholson, Stanton v Olex Australia P/L and VWA
[2009] VCC 1774
•19 November 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT BENDIGO
CIVIL DIVISION
SERIOUS INJURY
DAMAGES/COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-01130
| STANTON NICHOLSON | Plaintiff |
| v | |
| OLEX AUSTRALIA PTY LIMITED | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 17 November 2009 |
| DATE OF JUDGMENT: | 19 November 2009 |
| CASE MAY BE CITED AS: | Nicholson, Stanton v Olex Australia P/L & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1774 |
| First Revision 2 December 2009 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether an injury suffered by the plaintiff to his right shoulder was productive of consequences in terms of pain and suffering and loss of enjoyment of life which were at the least very considerable – whether the consequences were contributed to by a secondary psychiatric condition – the need for disentangling – whether the plaintiff had a residual capacity for work which he could exercise in suitable employment: section 134AB (37)(a) and (38)(c), (g) and (h)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with | Arnold Dallas McPherson |
| Mr M Schulze | ||
| For the Defendants | Ms S Manova with | Hall & Wilcox |
| Ms H Donmez | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 23 March 2009 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr J Richards SC appeared with Mr M Schulze of Counsel for the plaintiff, and Ms S Manova appeared with Ms H Donmez of Counsel for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the right shoulder.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
Ms Henderson, occupational therapist, gave evidence and was cross- examined;
•
The plaintiff tendered the Plaintiff’s Court Book (“PCB”), pages 21-149; 165-166; 170-199 and 200-203: Exhibit A;
•
The defendants tendered the Defendants’ Court Book (“DCB”), pages 3- 37(f); 47-53; 68(a)-(f) and 84-88, and from the Plaintiff's Court Book, pages 88-105: Exhibit 1.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e) impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
9 The plaintiff was born on 29 December 1949. He is now fifty-nine years of age. He is divorced. He has three children, all of whom are adult and independent of him.
10 The plaintiff last attended Stawell High School. He was sixteen years of age. He subsequently pursued a number of occupations before commencing employment with the first defendant in October 2003 as a machine operator at its plant in Lilydale.
The Plaintiff's Injury
11 The plaintiff was required to perform manual work which resulted in him suffering injury to his right shoulder. As a consequence of the heavy nature of that manual work, he suffered injury in June 2004, on 5 January 2005 and in early 2005.
12 In June 2004, the plaintiff wrenched his right shoulder when he grabbed a large cable reel to avoid it colliding into a van which had been driven onto the first defendant's premises.[5]
[5] PCB 22
13 On 5 January 2005, the plaintiff's right arm became hooked on cable which resulted in his right shoulder being wrenched as he pulled his right arm back from the cable.[6]
[6] PCB 22. The plaintiff referred to that incident occurring in December 2004. He corrected the date during his oral evidence.
14 In early 2005, the plaintiff suffered further injury to his right shoulder when he was moving a large wooden reel.[7]
[7] PCB 23
15 The plaintiff’s supervisor referred him to Dr Yeo, general practitioner. He probably saw Dr Yeo in late February or early March 2005.
16 Dr Yeo referred the plaintiff to have an ultrasound of his right shoulder which was taken on 2 March 2005. The radiologist reported that the ultrasound showed a ruptured long head of the biceps tendon and a full-thickness tear of the supraspinatus tendon associated with a linear intrasubstance tear of the inserting fibres of the subscapularis tendon.[8]
[8] PCB 139
17 Dr Yeo referred the plaintiff to Mr Armstrong, orthopaedic surgeon, who first saw the plaintiff on 16 March 2005. He operated on the plaintiff's right shoulder on 14 April 2005, at which time he found a large full-thickness tear of the right supraspinatus tendon. He performed an acromioplasty and subacromial decompression, and a repair of the rotator cuff tendon. He did not surgically repair the long head of the biceps tendon, preferring to treat that conservatively.[9]
[9] PCB 69
18 Mr Armstrong reviewed the plaintiff on 21 April, 18 May, 7 September and 2 November 2005. He referred the plaintiff for acupuncture which the plaintiff said helped him. On examination, Mr Armstrong found that the function of the plaintiff's right shoulder had improved. The plaintiff admitted that he had improved a fair bit by 2 November 2005.
19 Initially the plaintiff stopped working on 4 February 2005. He first returned to work after some months on light duties. However, in early 2006, he had a setback. He again wrenched his right shoulder.
20 The plaintiff informed Mr Armstrong of the setback. Mr Armstrong referred the plaintiff for an ultrasound which was taken on 5 May 2006. Mr Armstrong agreed with the radiologist who concluded that the changes with the supraspinatus tendon were probably a reflection of suture material. He found evidence of a localised partial tear situated more posteriorly within the supraspinatus tendon, but otherwise there was no abnormality detected.
21 Mr Armstrong reviewed the plaintiff on 19 July 2006, 2 April 2007 and 1 October 2008. The plaintiff told him that he was experiencing soreness in both shoulders doing gym work which involved overhead activity. He also told him that he had suffered a mental breakdown in about January 2007 and was unable to work.
22 On 1 October 2008, Mr Armstrong was of the opinion that the plaintiff was experiencing low-grade symptoms in both shoulders, and at that stage worse on the left-hand side. He referred the plaintiff to have an ultrasound of both shoulders which was taken on 13 October 2008.[10] Mr Armstrong was satisfied that there was no further deterioration in the plaintiff’s right shoulder. He was of the opinion that the plaintiff had suffered a small partial thickness tear of the supraspinatus tendon of the left shoulder.[11]
[10] PCB 145-146
[11] PCB 70
23 Mr Armstrong was ultimately of the opinion that although the plaintiff obtained a reasonable result from the surgery, he was in no doubt that the plaintiff continued to experience symptoms and lack of strength due to the injury to his right shoulder.
24 Mr Armstrong was also of the opinion that the plaintiff would not get back to heavy manual work which required repetitious, strenuous and overhead activity. He added, that given that the plaintiff had left school at sixteen years of age and was nearly sixty years of age, that in terms of future employment his prospects were clearly "going to be pretty tough". He, rather, saw the plaintiff pursuing some sort of sedentary work or bench work not requiring overhead activity or strenuous manual work involving his upper limbs.[12]
[12] PCB 70-71
25 In the meantime the plaintiff had been referred to Mr Moran, orthopaedic surgeon, for a medico-legal assessment. He referred the plaintiff to have an ultrasound which was taken on 4 August 2008.[13]
[13] PCB 144
26 During the course of reviews of the plaintiff by Mr Armstrong, Dr Yeo referred the plaintiff to Boronia Radiology to undergo a right shoulder hydrodilatation which was undertaken on 16 April 2007. The radiologist who conducted the hydrodilatation also conducted an arthrogram. The procedure revealed some mild adhesive changes in the plaintiff’s right shoulder.[14]
[14] PCB 142
27 Interestingly, Dr Yeo made no comment about the hydrodilatation in any of his reports, nor have any of the other medical examiners.
28 Dr Yeo referred the plaintiff to Cedar Court for rehabilitation. The plaintiff attended Cedar Court on one occasion. He was prescribed medication, presumably by an attending medical practitioner. The medication he was prescribed was Oxycontin and Norspan patches for pain relief, and Lyrica for depression.[15]
[15] PCB 25 and 44
29 The plaintiff was referred to Dr Bala, consultant physician in rehabilitation medicine, by Dr Yeo. He first saw him on 9 October 2008. Dr Bala became aware that the plaintiff was complaining of symptoms of both a right shoulder injury and from a psychiatric condition. At first he prescribed the plaintiff Norspan patches, Oxycontin and Lyrica while waiting for approval for the plaintiff to undergo a chronic pain management program as an outpatient at the Epworth Rehabilitation facility in Camberwell.[16]
[16] PCB 116-117
30 Dr Bala reported last reviewing the plaintiff on 25 June 2009.[17] In a report dated 14 October 2009, he described the treatment he provided the plaintiff. It would appear that the plaintiff had not yet undergone a chronic pain management program. In an earlier report dated 16 April 2009, he was asked a number of questions relevant to the diagnosis of the plaintiff's injuries.
[17] PCB 126
31 In that report, Dr Bala was of the opinion that the plaintiff was suffering from chronic right shoulder pain. He was of the opinion that the plaintiff was not in a position to return to his pre-accident employment due to the chronic nature of his right shoulder pain. He considered that it was possible that the plaintiff's right shoulder pain might be aggravated with any sort of manual labour job that involved lifting.
32 Dr Bala considered that the plaintiff's prognosis was poor, and a return to work was likely to be quite complex and difficult given his age, previous training and experience and his current disability.[18]
[18] PCB 124-125
33 The plaintiff presently resides in Stawell. He lives in the home formerly occupied by his deceased parents. Despite living in Stawell, the plaintiff travels to see Dr Yeo monthly at Dr Yeo's rooms in Montrose, which is an outer eastern suburb of Melbourne.
34 In his last report dated 21 July 2009, Dr Yeo described that the medical conditions for which he has been treating the plaintiff are as follows:
“Mr Nicholson continues to suffer from unrelenting pain related to his Right shoulder injury. His ability to do activities involving the Right arm is severely restricted. He requires regular analgesic (endone/paracetamol/Panadeine forte) and antidepressants (Avanza 45mg).
As a result of his injury he is severely isolated, unable to work and significantly depressed and when last reviewed on the 14 July 2009 was a significant suicide risk as a result of his Right shoulder injury and subsequent change in lifestyle and socioeconomic circumstances “[19]
[19] PCB 45
35 The plaintiff's secondary psychiatric condition became a significant issue in the proceeding. Ms Manova submitted that I could not be satisfied that the consequences of the impairment of the function of the plaintiff’s right shoulder would be contributed to solely by that impairment. She submitted that the plaintiff’s secondary psychiatric condition also contributed to those consequences.
36 Dr Trivett, general practitioner (a colleague of Dr Yeo), instigated treatment for the plaintiff from Ms Segrave, psychologist, and Dr Kothari, psychiatrist. Dr Trivett was of the opinion that the plaintiff was very anxious, had a labile mood and was depressed.[20]
[20] PCB 46 and 47-48
37 It would appear that Ms Segrave had seen the plaintiff before on referral by Dr Yeo in about July 2005. At the time Dr Trivett referred the plaintiff back to Ms Segrave, his psychiatric condition was deteriorating.
38 Ms Segrave saw the plaintiff through 2006 to 2008. She was of the opinion that the plaintiff was suffering from anxiety and depression. When she assessed him on 27 November 2008 she found that his anxiety and depression had improved, but was still in the moderate anxiety range based upon formal testing.[21]
[21] PCB 88-95, and particularly at PCB 94-95
39 Dr Kothari first saw the plaintiff on 19 December 2006. Unfortunately, Dr Kothari's first report does not contain any dates on which he treated the plaintiff. In any event, he concluded that the plaintiff was suffering from a chronic pain syndrome with a chronic adjustment disorder/secondary depression for which he treated him with a variety of medication. Initially, he considered that it was unlikely that the plaintiff would cope with working or be able to sustain employment even if he found suitable employment.[22]
[22] PCB 96-103
40 However, Dr Kothari examined the plaintiff on several occasions through 2008 and into 2009. The last date on which he reported last reviewing the plaintiff was 7 February 2009. In his letter dated 22 February 2009 addressed to Dr Trivett, Dr Kothari's concentration was on the plaintiff's injury to his right shoulder. He made no mention of any psychiatric symptoms. He asked Dr Trivett to arrange for the plaintiff to be referred to a pain management course which the plaintiff was keen to pursue.[23]
[23] PCB 104
41 In his last report dated 8 March 2009, Dr Kothari also concentrated largely on the plaintiff's injury to his right shoulder. He added that in association with the pain that the plaintiff was suffering, that he was continuing to experience intermittent depression, irritable mood, disturbance of initiation and maintenance of sleep, and fluctuating levels of energy. He noted that the plaintiff had ceased taking an anti-depressant in preference for a different anti- depressant prescribed by a pain management specialist.[24]
[24] PCB 105. The plaintiff was referred to Dr Bala for pain management by Dr Yeo. He first saw the plaintiff on 9 October 2008.
The Other Medical Opinions
42 The plaintiff was examined by Mr Hooper, orthopaedic surgeon, for an insurer on 7 June 2005, 30 January 2006 and 7 February 2007. In his last report dated 8 February 2007, he found that the plaintiff had a full range of motion and good power in his shoulder, but could not use his right arm forcefully. He noted that pain was the plaintiff’s major problem. He recommended the plaintiff be referred back to Mr Armstrong.
43 Mr Hooper was of the opinion that the plaintiff was capable of undertaking light work, but not capable of undertaking heavy work that involved using his right arm above shoulder level.[25]
[25] PCB 137-138
44 Mr Moran, orthopaedic surgeon, examined the plaintiff on 30 July 2008. He was of the opinion that the plaintiff continued to demonstrate signs of impingement, weakness and hesitancy in using his right arm, and had a poor tolerance to lifting even trivial items. He considered the foregoing to be a not uncommon consequence of surgery following a major rotator cuff repair.
45 Mr Moran was of the opinion that the plaintiff's right shoulder injury had a serious impact upon his ability to return to work and to participate in a full range of social and recreational activities. He added that the plaintiff would continue to be intolerant to lifting with his right upper limb, performing tasks requiring rapid and repetitive movement, that he would struggle to lift even trivial weights above chest height, and returning him to vigorous physical work would put him at risk of re-rupturing the rotator cuff repair.[26]
[26] PCB 108-109
46 Mr King, orthopaedic surgeon, examined the plaintiff in November 2008. He was of the opinion that the plaintiff's injury to his right shoulder represented a 40 per cent impairment of function of the plaintiff’s right upper limb on clinical grounds. He considered that he was permanently impaired from returning to any sort of work which he had done over the past years, and that he would be left with a long-term disability. He considered that the plaintiff had no capacity for light duties from a practical point of view.[27]
[27] PCB 114-115
47 Dr Mutton, consultant occupational physician, examined the plaintiff for an insurer on 23 August 2007. He found a full range of pain-free movement in the plaintiff’s right shoulder. He considered that the plaintiff was not fit to undertake his pre-injury duties. He considered that the plaintiff was capable of working with restrictions so long as he avoided lifting more than 5 to 7.5 kilograms and working repeatedly overhead.
48 Dr Mutton was also of the opinion that withdrawal of the plaintiff's pain medication would likely increase his symptoms and have an impact upon the plaintiff's capacity to undertake activities of daily living. He considered that the plaintiff's use of Avanza, Panamax, Panadeine Forte and Tramal to be reasonable.[28]
[28] DCB 9-10
49 Mr Shannon, orthopaedic surgeon, examined the plaintiff on 5 February 2008 for an insurer. The purpose of his examination was to undertake an impairment assessment. However, he was of the opinion that the plaintiff was continuing to suffer from an organic problem and appeared to have a positive impingement sign in his right shoulder. He considered that the plaintiff's right shoulder injury would permanently limit him in the performance of work involving strenuous repetitive use of his right arm, heavy lifting or work above shoulder level.[29]
[29] DCB 26
50 Mr Simm, orthopaedic surgeon, examined the plaintiff on 29 April 2009. He was of the opinion that the plaintiff was suffering from symptoms of the injury to his right shoulder, and had also developed a chronic pain syndrome.
51 Mr Simm made a number of observations about the plaintiff's behaviour which arose out of his examination of the plaintiff, and which appear to have influenced his view that the plaintiff was suffering from a chronic pain syndrome. In particular, he referred to the plaintiff’s unconscious full use of his left arm when compared with the impairment of it when examined, and the plaintiff’s reference to experiencing severe pain of up to 10 out of 10. He was of the opinion that the plaintiff required psychiatric and psychological treatment.
52 However, Mr Simm distinguished what he observed to be the symptoms of the chronic pain syndrome from the frank symptoms arising from the injury to the plaintiff's right shoulder in answer to a question regarding the impairment or loss of a body function from the compensable injury (the right shoulder injury):
“There is significant impairment and loss of function of the right upper extremity as a whole as a result of the surgically treated compensable right shoulder injury. The apparent impairment and loss of function seems to be greater than one would expect from the underlying physical injury because of the development of a chronic pain syndrome.”
53 The foregoing is of critical importance in the analysis of the opinion of Mr Simm regarding what impairment occurred as a result of the injury to the plaintiff’s right shoulder, when compared with the impairment resulting from the chronic pain syndrome.
54 Mr Simm was also asked to express an opinion regarding the plaintiff's incapacity for employment resulting from the compensable injury. He was of the opinion that the plaintiff was incapacitated for physically-based employment that involves heavy lifting, particularly with his arms away from his body or above chest height. He considered that he was fit for suitable employment as an occupational health and safety officer given that he had worked in that capacity and was undertaking re-training in that area.[30]
[30] DCB 34-36
55 I will lastly deal with the opinion of Dr Senadipathy, psychiatrist, who examined the plaintiff on 29 January 2008. He was of the opinion that the plaintiff was suffering from depression. However, he was of the opinion that the plaintiff was not incapacitated for work by reason of his psychiatric condition.[31]
[31] DCB 21-22
The Need for Disentangling
56 In Shock Records Pty Ltd v Jones;[32] Zivolic v Hella Australia Pty Ltd[33] and Jayatilake v Toyota Motor Corporation Australia Ltd,[34] the Court of Appeal held that if a judge at trial is satisfied that the physical injury resulting in an impairment of a body function is the cause of pain and suffering consequences and loss of earning capacity consequences, then no so-called disentangling is required.
[32] [2006] VSCA 180, per Bell AJA, at paragraph 79
[33] [2007] VSCA 142, per Redlich JA, at paragraphs 19-20
[34] [2008] VSCA 167, per Ashley JA, at paragraphs 19-21
57 The submission made by Ms Manova that the plaintiff has failed to undertake the so-called disentangling was largely based upon the opinion of Mr Simm. Ms Manova also relied upon the opinions of Ms Segrave, Dr Kothari and Dr Senadipathy to demonstrate that the plaintiff has had an active and quite serious depressive illness which is playing a significant part in producing the consequences which the plaintiff says is attributable to the impairment of function of his right shoulder.
58 I am in no doubt that the plaintiff suffered a major injury to his right shoulder which required surgery. I am also in no doubt that the plaintiff’s right shoulder continues to be symptomatic, and has led Dr Yeo, Mr Armstrong, Mr Hooper, Mr Moran, Mr King, Mr Mutton, Mr Shannon and Mr Simm to say as much and to clearly define what incapacity was produced by the right shoulder injury, and in particular, what restrictions they would place upon the plaintiff in terms of limitations on the use of his right upper limb in the context of a return to work.
59 It is very clear to me that the work restrictions to which each of them refer bear a remarkable similarity. It occurs to me that the opinion provided by Mr Armstrong is generally representative of their opinions, that is, that the plaintiff should not engage in heavy manual work which required repetitious, strenuous and overhead activity.
60 I am not satisfied that there is any merit in the submission made by Ms Manova that the physical consequences and the psychiatric consequences are so entangled that I cannot be satisfied that the injury to the plaintiff's right shoulder has resulted in an impairment of function of the right shoulder causing pain and suffering consequences and loss of earning capacity consequences for the plaintiff.
61 I am fortified in reaching that conclusion by the approach which Mr Simm was asked to take by the defendants. He was able to distinguish the impairment of function of the plaintiff’s right shoulder from the impairment resulting from the chronic pain syndrome.[35]
[35] DCB 35-36, and in particular the answers to Questions 4 and 7
Serious Injury
Pain and Suffering
62 Ms Manova informed me that the defendants conceded that the plaintiff had suffered an injury to his right shoulder which had resulted in an impairment of function of the right shoulder with some consequences, but consequences falling well short of being “very considerable”.
63 Ms Manova submitted that there were essentially two bases upon which she said that the plaintiff should fail, they being, firstly, a significant proportion of the consequences referred to by the plaintiff are derived from his psychiatric condition, and secondly, I should not accept the plaintiffs evidence that he is as disabled as he says he is.
64 I am not satisfied that there is a question of the plaintiff’s credit to be determined in this application, that is, that he was untruthful or has given evidence of a quality which renders it unreliable.
65 I accept the plaintiff’s evidence that he was a person with a very strong working ethnic. I accept his evidence that he has engaged in a wide variety of work over his working life, and was prepared to travel to distant localities in order to secure work.[36]
[36] Transcript 19-23
66 In his affidavit sworn 7 November 2008, the plaintiff said that he is left arm dominant. However, he has encountered difficulties in undertaking activities which necessarily involve the use of his right arm. He said he lives in constant pain. He said the pain is mostly a constant dull ache at best, but is often severe.[37] He said that he experiences pain if he engages in physical tasks using his right arm.[38] He said that he has tried to engage in physical activities, but when he does he has pain within an hour or two or that night.[39]
[37] Transcript 13
[38] Transcript 14
[39] Transcript 51
67 He said that he continues to use medication to deal with the pain he experiences. At present he takes Endone, Panadeine Osteo and Panamax to deal with the pain he experiences, and Avanza 45 to deal with depression. He usually takes two Endone each day, but often takes up to six each day.
68 The plaintiff said that he has difficulty maintaining his garden; doing housework; maintaining the property where he lives and driving a car. He has difficulty obtaining a reasonable night's sleep.[40]
[40] PCB 25
69 In his oral evidence, he said that he had to stop three or four times during the drive from Stawell to Bendigo on the morning that this application was called on for hearing.[41] He said that when he drives from Stawell to Montrose to see Dr Yeo the round-trip can take up to 12 hours because of the occasions he needs to stop during the journey to obtain relief from the pain he experiences in his right shoulder.[42]
[41] Transcript 13
[42] Transcript 44-45
70 The plaintiff said that he was a keen fisherman. He also played golf. He was something of a handyman, to the extent that when he was in a domestic relationship he engaged upon the renovation of his partner’s home at around the time when he suffered the injury to his right shoulder. He was unable to complete the renovations. At some later stage the domestic partnership came to an end.[43]
[43] Transcript 15-16 and 53-54
71 The question whether the plaintiff has suffered consequences which are least very considerable is to be answered by determining what the plaintiff has lost as a result of suffering the injury right shoulder, and, of course, that question can also be answered by what the plaintiff has retained.
72 The plaintiff now has a painful right shoulder which is easily aggravated by physical activity. The pain he experiences is constant, and is often severe. He requires significant amounts of medication to deal with the pain. It is medication prescribed by Dr Yeo because he is of the opinion that the magnitude of the plaintiff’s pain requires medication of that order.
73 I accept the plaintiff’s evidence that the injury to his right shoulder has impaired the function to such an extent that he suffers all of these consequences.
74 I also accept that the plaintiff was a man with a very strong work ethic, and I accept that he was a man with physical resilience and a capacity to sustain hard work.
75 I accept that the impairment of the function of his right shoulder has had a dramatic effect upon his capacity to undertake physical activities. It is clear to me that he is not able to undertake physical work, and that is confirmed by nearly every medical examiner.
76 I accept the plaintiff’s evidence that the social, domestic and recreational activities which were part of his life are now mostly lost to him.
77 Overall, it was my strong impression that the plaintiff has a very painful right shoulder requiring significant quantities of medication for him to deal with the degree of pain he suffers, and that nearly every aspect of his working, social, domestic and recreational life that he had before the right shoulder injury occurred has been affected in a very significant way.
78 It is for these reasons that I find that the injury to the plaintiff's right shoulder has significantly impaired the function of his right shoulder and has consequences for him which deserve the description “at least very considerable” when judged by comparison with other cases in the range of possible impairments or losses of a body function, which may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
Loss of Earning Capacity
79 Following the setback which the plaintiff suffered after Mr Armstrong operated on his right shoulder, the plaintiff was approached by the occupational health and safety manager of the first defendant to work in its occupational health and safety department.
80 The plaintiff began working in that department in about September 2006. He commenced a course described as Certificate IV in Occupational Health and Safety. The plaintiff ceased working in that department in about December 2006. He suffered a mental breakdown when allegations were made about his attitude to his work.
81 It would appear that the plaintiff consulted Dr Trivett when those allegations were made, which triggered her referral of the plaintiff to Ms Segrave and Dr Kathari.[44]
[44] The plaintiff first saw Dr Kothari on 19 December 2006 at PCB 99
82 The plaintiff did not return to work with the first defendant in any capacity thereafter. Nor has the plaintiff worked in any alternative or suitable employment since.
83 Ms Manova submitted that the plaintiff was working effectively in that department before he suffered the mental breakdown, and that the plaintiff admitted that he enjoyed the work and was able to undertake it. Ms Manova submitted that had the plaintiff not suffered the mental breakdown, that he would still be working in that job, and is now fit for that job.
84 Mr Richards submitted that the plaintiff was not undertaking a job per se, but a position which was found for him, short of being an actual job. He referred to an email sent by Loren Murray on 22 August 2006 which he submitted set out the basis on which the plaintiff was assigned to that department:
"What I did not make clear in my first e-mail is that the position of an ‘OHS Officer’, at this stage, does not formally exist in the company. We [are] assisting Jim in finding him appropriate modified duties by asking him to help us in the OHS team. Jim will return to his pre-injury duties when he is fit to do so.
In the future [a] position for an OHS Officer may become available. If this is the case we will formally open this position to all employees at Olex."[45]
[45] PCB 166
85 An insurer wrote directly to the plaintiff confirming that if he completed the Certificate IV course that the information that the plaintiff had been given that completion of that course would mean he would be given a job in that department was wrong.[46] Subsequently, the funding for the plaintiff to complete that course was withdrawn.[47]
[46] PCB 201
[47] PCB 23
86 What is clear from the e-mail is that the plaintiff was working in that department on light duties which were to cease when he was fit to return to his normal duties. It would appear that the first defendant never contemplated allowing the plaintiff to work in that job as a substitute for his pre-injury job.
87 The central focus of both Mr Richards and Ms Manova regarding whether the plaintiff has a residual capacity which he can exercise was directed to the plaintiff's capacity to undertake a job as an occupational health and safety officer.
88 Subsection (38)(j) provides that the assessment of "serious injury" must be made at the time the application is heard by the Court.
89 It is, therefore, not to the point to look at the plaintiff's capacity retrospectively, that is, going back to September-December 2006 when he was working in the occupational health and safety department of the first defendant, but to look at whatever residual capacity he now has and how he can exercise it in suitable employment.
90 The only medical examiner who was asked to consider the plaintiff's capacity to work as an occupational health and safety officer was Mr Simm.[48] However, Mr Simm was not provided with a job description to determine whether his opinion as to the plaintiff's residual capacity fitted the job requirements of an occupational health and safety officer.
[48] DCB 36
91 The only two job descriptions relevant to an occupational health and safety officer is contained in the report of NabEnet dated 9 October 2009, compiled by Ms Diss, psychologist,[49] and in the report of Evidex dated 20 October 2009, compiled by Ms Henderson.[50] The job descriptions are almost identical.
[49] DCB 68b
[50] PCB 191-192
92 Ms Henderson referred to the minimum qualifications required to work as an occupational health and safety officer as Certificate IV or a diploma in occupational health and safety.[51] Ms Diss obtained information from Allan Wollard Consulting Services that the minimum qualification for that position is a diploma in occupational health and safety in conjunction with either auditing qualifications or experience.[52]
[51] PCB 191
[52] DCB 68b
93 The plaintiff has not completed Certificate IV. He has experience in the occupational health and safety field with the first defendant limited to the brief period that he worked in its department in the latter part of 2006. At present the plaintiff does not have the relevant qualifications to undertake a job as an occupational health and safety officer.
94 The plaintiff said that he did not believe that he had the capacity to work because of the pattern of pain that he experiences.[53]
[53] Transcript 15
95 The typical duties of an occupational health and safety officer identified by Ms Henderson and Ms Diss appear to me to require a reasonable degree of sophisticated training and experience. It does not appear to me that it is a routine administrative or clerical job.
96 Four specific tasks: identifying hazards, and assessing in controlling risks in the workplace; inspecting and auditing workplaces for legislative compliance; training employees in personal protective equipment and safe working procedures; and recording and investigating injuries and equipment damage and reporting safety performance, all appear to involve some manual activity for a person performing those duties.
97 Ms Diss did not offer an opinion as to whether the plaintiff was fit to undertake the tasks required in that job, and indeed, she said that she had not considered the plaintiff's physical capacity to undertake the jobs which she referred to in her report.
98 Ms Henderson took that step applying her particular knowledge as an occupational therapist to the physical demands required of a person undertaking the duties of occupational health and safety officer:
“Frequent right shoulder movements to drive for prolonged periods to work locations to audit workplaces, investigate incidents and train employees as required.
Frequent right shoulder movements when climbing ladders or scaffolding to access work areas to conduct inspections and audits and when inspecting and testing machinery and equipment such as lifting devices, machine shields and scaffolding.
Repetitive use of both arms to efficiently complete computer related tasks such as recording information and writing reports and policies to meet employer expectations and deadlines set by management.”[54]
[54] PCB 192
99 It occurs to me that when regard is had to the restrictions which the medical examiners would place upon the plaintiff, that it is unlikely that he would be able to perform the foregoing duties because they involve manual operations which I found the plaintiff is probably unable to undertake.
100 In addition to the foregoing, it is necessary to also consider a number of other factors in determining whether the plaintiff has a residual capacity which he can exercise in suitable employment.
101 The definition of “suitable employment” in section 5(1) requires me to consider the number of matters:
• I have dealt with the nature of the plaintiff's incapacity and his pre-injury employment. • The plaintiff is nearly sixty years of age. He has limited formal education, but has obvious skills and experience in a number of occupations. • The plaintiff lives in Stawell which is about 120 kilometres from Ballarat and about 80 kilometres from Horsham. It is a small country town with a population of about 5000 people. The plaintiff would need to drive each day in order to access whatever employment might be available in Ballarat and Horsham. • I have dealt with the medical information relevant to the plaintiff. • After the plaintiff ceased working for the first defendant, no occupational rehabilitation service has been provided for his use. 102 After considering the evidence of the plaintiff, the medical evidence and the reports of Ms Henderson and Ms Diss, I have reached the conclusion that given the significant nature and extent of the impairment of the function of the plaintiff’s right shoulder, and the necessity for him to use such a significant amount of medication, that it is unlikely, at sixty years of age, that he has the capacity to undertake work as an occupational health and safety officer.
103 I do not accept the bald statement made by Mr Simm that the plaintiff could work as an occupational health and safety officer in the absence of Mr Simm being exposed to the job descriptions referred to by Ms Henderson and Ms Diss.
104 I find that the plaintiff has suffered a loss of earning capacity which is at the least “very considerable” when judged by comparison with other cases in the range of possible impairments or losses of a body function, which may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
Conclusion
105 On the basis of the foregoing reasons, findings, and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Act to recover damages for pain and suffering and loss of earning capacity arising out of his employment with the first defendant.
106 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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