Perinpanathan v Somerville Retail Services Pty Ltd and Victorian WorkCover Authority
[2015] VCC 1
•23 January 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-05388
| MURUGESU PERINPANATHAN | Plaintiff |
| v | |
| SOMERVILLE RETAIL SERVICES PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 January 2015 | |
DATE OF JUDGMENT: | 23 January 2015 | |
CASE MAY BE CITED AS: | Perinpanathan v Somerville Retail Services Pty Ltd & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – pain and suffering and pecuniary loss damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages and pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell QC with Mr S J Carson | Maurice Blackburn Pty Ltd |
| For the First Defendant | Mr J L Batten | IDP Lawyers |
| For the Second Defendant | Mr J L Batten | Thomsons Lawyers |
HIS HONOUR:
1 In this proceeding the plaintiff seeks leave to commence a proceeding claiming damages for injury suffered in the course of his employment with the first defendant. In the proceeding the plaintiff seeks leave to commence a proceeding claiming damages both with respect to non-pecuniary and pecuniary loss.
2 The evidence clearly establishes that the plaintiff presents with an injury to his right shoulder involving supraspinatus rotator cuff tendinopathy and a supraspinatus rotator cuff tear.[1]
[1]See the report of Mr Andrew McQueen, orthopaedic surgeon, dated 4 July 2012 and that of Mr Barclay-Reid, general surgeon, dated 17 December 2012
3 The impairment of the body function relied upon by the plaintiff is that of the right shoulder and arm.
4 In the course of this application, the plaintiff gave evidence and was cross-examined. Otherwise, the parties rely upon medical evidence tendered by them.
5 The plaintiff has sworn two affidavits, dated 17 June 2013 and 5 January 2015, in which he set out the symptoms and restrictions associated with the condition with which he presents in his right upper limb. The content of those affidavits speaks for itself, as does the plaintiff’s viva voce evidence, and no purpose is served in restating that evidence in these reasons, other than where required to give context to my findings and to disclose my path of reasoning in this instance.
6 The first issue raised by the defendants in this matter for my determination is whether or not the plaintiff’s current level of disability can be considered permanent.
7 There is a consistency within the medical evidence that there is little likelihood of the plaintiff achieving any improvement in his level of function or diminution in his level of symptoms in the absence of undergoing surgery.
8 Surgery was first recommended to the plaintiff by Mr Mathew Evans, a shoulder and knee surgeon, in 2009. In recommending the surgery, Mr Evans did not opine that the plaintiff would, even in the presence of successful surgery, be restored to his pre-injury level of functioning, emphasising that even after surgery, he would be fit only to work undertaking light duties.
9 In October 2010, the plaintiff was seen by Mr Andrew McQueen, an orthopaedic surgeon, who also recommended surgery. Approval for the undertaking of the surgery was accepted by QBE Worker’s Compensation Insurance on 19 November 2010.
10 The plaintiff, despite the recommendations by Mr King and Mr McQueen, has not elected to undergo surgery.
11 In his most recent affidavit, the plaintiff describes being extremely hesitant about undergoing surgery.
12 The plaintiff gave evidence that this decision came about as the result of his discussion with friends as to the less than satisfactory result they had achieved following shoulder surgery and the failure by the doctors to guarantee a one-hundred per cent recovery from the surgery.
13 In his viva voce evidence, the plaintiff’s position was essentially that he had no intention of undergoing surgery.
14 I am satisfied, having regard to the period of time which has elapsed since the onset of the plaintiff’s symptoms, that the plaintiff’s reluctance to undergo surgery is likely to persist in the foreseeable future and that in these circumstances, that the plaintiff’s condition is stabilised, the preponderance of the evidence being that in the absence of surgery there will be no change in the plaintiff’s condition.
15 I am also satisfied, on the basis of the findings I will set out in the course of these reasons, it is probable that:
· the plaintiff will continue to suffer from the pain and restriction of movement with which he presents in his right upper limb for the foreseeable future; and
· the plaintiff’s regime of controlling his symptoms by restricting the activity he undertakes with his right arm and employing Mobic, Voltaren and Panadol as required – is likely to continue for the foreseeable future.
16 As to the balance of the matters for my determination, I find it convenient to initially assess whether the evidence establishes that the plaintiff has suffered the requisite degree of loss of earning capacity to entitle him to maintain a proceeding with respect to that loss as, should the plaintiff make good his onus on this issue, this would entitle him to leave to commence a proceeding claiming damages for both pecuniary and non-pecuniary loss.
17 There is no issue that the plaintiff’s current impairment of function in his right shoulder precludes him from undertaking any form of unrestricted physical activity.
18 On behalf of the defendants, Dr Dominic Yong, specialist occupational physician, in reports dated 26 November 2013 and 18 August 2014, opines that the plaintiff has a current capacity to perform work tasks within the following restrictions:
(i) avoid right arm repeated reaching or above shoulder height tasks;
(ii) avoid right arm repeated firm pushing or pulling;
(iii) avoid lifting more than 5 kilograms on a repeated basis;
(iv) avoid repeated firm gripping or squeezing tasks with the right arm.
19 Dr Yong opines that within those restrictions, employment as a process worker or packer would be available to the plaintiff on a full-time basis.
20 It is agreed by the parties that the wage available to the plaintiff in that type of employment is $18.44 per hour.
21 On behalf of the plaintiff, Mr Tony Kostos, a rheumatologist, in a report dated 18 June 2012, opined that as at July 2009, the plaintiff was “limited from performing any activity at work which would require right arm reaching and elevation” and that his condition was not going to improve without further intervention.
22 The plaintiff’s general practitioner, as at February 2012, opined that the plaintiff had no work capacity for any manual repetitive duties, and as at 24 November 2012, opined that even within that restriction, the plaintiff’s capacity for work at a maximum was three to four days per week at six hours per day.
23 Dr David Middleton, occupational health and rehabilitation consultant, opines in reports dated 6 September 2013 and 23 December 2014, that the plaintiff’s condition in his right dominant arm is such that he must avoid:
· work at or above shoulder height and work which involves reaching, pushing or pulling and forceful or repetitive use of the right shoulder
· work involving the need to apply a maximal effective weight greater than 5 kilograms on an occasional basis and 2.5 kilograms on an intermittent basis.
24 He further opined that the plaintiff’s work needed to be self paced, allowing him to take rest breaks on an ‘as needs’ basis and that within these restrictions, the plaintiff would be able to tolerate 15 hours of work in any one week.[2]
[2]Plaintiff’s Court Book page 89
25 In the course of his viva voce evidence, the plaintiff described his desire to return to work and the boredom and depression which he experiences in association with his inability to work.
26 Having regard to the plaintiff’s long work history prior to the development of his symptoms in 2007, his persisting in his employment with the first defendant until being retrenched in 2011, notwithstanding his restricted duties causing exacerbation of his symptoms, I am satisfied that the plaintiff has a genuine desire to work and that his inability to find work involves a very significant loss to him.
27 I am satisfied that the plaintiff was a reliable witness. In my opinion, notwithstanding an extremely competent cross-examination in which all relevant issues were put to him, the plaintiffs’ evidence both in his affidavits and viva voce evidence as to his symptoms and capacity for work and activity in general, was in no way undermined.
28 I am further satisfied that any comorbidities from which the plaintiff suffers either by reason of the fracture he sustained to his ankle in 2002 or his long-term psychiatric illness, do not impact adversely upon his capacity for employment and, as such, are irrelevant to my analysis as to the relationship between the injury and incapacity the subject of this application and the plaintiff’s retained capacity for employment.[3]
[3]The plaintiff’s psychiatric state manifested itself well prior to the plaintiff commencing employment with the first defendant and did not adversely impact upon the plaintiff’s ability to perform the duties required in that employment. Notwithstanding a recent exacerbation of that condition, it is currently under control and the evidence satisfies me it is likely to remain so, the plaintiff accepting that he should continue to take the medication which controls that condition. As to the condition in the plaintiff’s right ankle, I accept the plaintiff’s evidence at Transcript 60 that the symptoms are intermittent and they are not such that they interfere with his capacity for work.
29 The plaintiff gave evidence that he undertook some part-time work assisting a friend who conducts two Indian restaurants, one in Ivanhoe, the other in South Morang.
30 He described, in the course of his viva voce evidence, the work he undertook at the restaurant which was clearly self-paced.
31 I accept the plaintiff evidence as to the reason for the initiation of the work and the enjoyment the plaintiff derived from undertaking his limited restaurant duties namely: “I enjoyed because at home it was boring you know because I’m alone at home, my wife go to work and I’m bored at home. That’s why – the main reason I ask him I’ll come and work there and he said ‘come’ … .”.[4]
[4]Transcript 78
32 I accept the plaintiff’s evidence that:
· he received little remuneration for the work;
· the work was provided to him by his friend, essentially to relieve his boredom.
· he enjoyed undertaking the work and that it was eventually discontinued because his friend “doesn’t want me anymore because he said I can’t work. I always sometimes I don’t turn up to work saying that my shoulder is straining and, you know.”
33 I am satisfied on the basis of the above findings that the activities undertaken by the plaintiff in the course of his work at the restaurant, which he described as involving the preparation of vegetables at a self-paced level in which he took regular breaks, reliably demonstrates the plaintiff’s tolerance for activity with his right upper limb at the present time.
34 I am further satisfied, having regard to the consistency between:
· the evidence given by the plaintiff both in his affidavits and his viva voce evidence as to his tolerance for activity; and
· the opinions expressed by Dr Ong and Dr Middleton as to the plaintiff’s capacity for activity
that the condition in the plaintiff’s right upper limb is such that it permanently precludes him from work involving repetitive use of his right shoulder and thus repetitive manual handling.
35 Insofar as Dr Yong opines to the contrary, I prefer the opinion of the plaintiff’s general practitioner upon this issue, who is well placed in my opinion to assess the plaintiff’s range and tolerance for physical activity, having regard to the fact that he has managed the plaintiff’s condition since 2007.
36 As I have said, given the consistency in the opinions expressed by Dr Middleton and Dr Ong as to the plaintiff’s tolerance for activity and the plaintiff’s evidence on this issue (which I accept), I prefer the opinions of Dr Middleton and Dr Ong as to the plaintiff’s capacity for employment to that expressed by Dr Yong.
37 It follows that I am satisfied that the plaintiff retains a very limited capacity for employment and that the duties involved in each of the activities identified by Dr Yong and by the authors of the Recovre report of 2 June 2014 as being within the plaintiff’s physical capacity, all of which involve repetitive use of the plaintiff’s right upper limb, are activities which the plaintiff would not be fit to undertake.
38 Whilst Dr Ong opined that the plaintiff had a tolerance for employment on a part-time basis involving a maximum working capacity of three to four days per week of six hours per day, he expressed that opinion on the basis that the plaintiff would be engaged in work which avoided all repetitive manual handling duties.
39 Dr Middleton clearly takes the same position as to the type of work the plaintiff is fit to undertake, expressing a slightly more conservative opinion as to the hours which the plaintiff would be capable of working, namely 15 hours per week.
40 Whilst it is put on behalf of the defendants that the plaintiff’s capacity for full-time employment immediately before his retrenchment demonstrates a capacity in the plaintiff both then and at present for full-time work, when one takes into account the plaintiff’s evidence as to the nature of the light work which the plaintiff was undertaking at that time of his retrenchment; namely:
“I was to check the quality and observe the meat placed on trays ready for sealing. If the meat was properly packaged I need to do nothing. But if the meat was not properly packaged I had to take trays off the conveyor.”
I am not satisfied that the plaintiff’s capacity to undertake such restricted activity on a full-time basis provides any indication of the plaintiff’s current capacity to work on a full-time basis given the current assessments of the plaintiff’s general practitioner and Dr Middleton that he has no such capacity.
41 In the context of the plaintiff’s evidence, which is not contested, that even as he performed the light, restricted duties he undertook with the first defendant before he was retrenched he experienced exacerbations of his symptoms which restricted his hours of work, I am satisfied that the plaintiff’s current capacity for employment would be restricted to part-time work which does not involve repetitive manual handling, and that his tolerance for such work would most probably involve a capacity to undertake such duties for 15 hours per week.
42 In making this finding I accept the evidence of Dr Middleton who, whilst expressing a more conservative opinion on the issue than Dr Ong,[5] is in my opinion better placed to opine on the issue, having regard to his specialty as an occupational health and rehabilitation consultant.
[5]Dr Ong opined that the plaintiff had a capacity for between 18 and 24 hours of suitable work per week
43 In fixing the figure which appropriately represents the plaintiff’s pre-accident earning capacity for the purposes of the Act, I am satisfied that I should employ the figure of $37,307.00, this being the plaintiff’s gross income in the year immediately prior to the time at which he sustained his injury; namely the financial year ending June 2007.
44 The parties agree that I should employ the hourly rate of $18.44 as the earning rate available to the plaintiff were he to be engaged in suitable part-time employment.
45 It follows, assessing the plaintiff’s tolerance for suitable part-time employment at the maximum figure within the range fixed by me – namely 15 hours per week – that the plaintiff has suffered a loss of earning capacity which satisfies the criteria established by the Act for leave to commence a proceeding seeking compensation for pecuniary loss damages.
46 I am further satisfied, having regard to the plaintiff’s evidence as to the effect of this loss both upon his lifestyle and enjoyment of life, that the plaintiff’s loss of earning capacity is “serious” as defined by the provisions of the Act.
47 For these reasons, I am satisfied that the plaintiff is entitled to the leave which is sought in this proceeding; namely to commence a proceeding against the defendants to claim damages for the injury suffered by him in the course of his employment with the first defendant with respect to both pecuniary and non-pecuniary loss.
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