Rimando v Victorian WorkCover Authority
[2017] VCC 1450
•11 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-02566
| Efren Rimando | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2-3 October 2017 | |
DATE OF JUDGMENT: | 11 October 2017 | |
CASE MAY BE CITED AS: | Rimando v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1450 | |
REASONS FOR JUDGMENT
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Subject: Common Law
Catchwords: Serious Injury Application
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited: Acir v Frosster Pty Ltd [2009] VSC 454
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr M Belmar Salas | Maurice Blackburn |
| For the Defendant | Ms R Annesley QC with Ms K Manning | Minter Ellison |
HER HONOUR:
1 Mr Rimando applies under s 134AB(34) of the Accident Compensation Act 1985 (Vic) for leave to bring proceedings for both pain and suffering and economic loss in respect of injuries to the shoulders, particularly the right shoulder, sustained as a result of heavy, repetitive work with Wilson Transformer Co. Pty Ltd (‘Wilson’) between 2004 and September 2011.
2 The defendant concedes that the plaintiff suffered bilateral shoulder injury as a result of his work with Wilson, and that he is permanently incapacitated for his pre-injury employment. However, the defendant says that the plaintiff’s application should be dismissed for a number of reasons. Firstly, the plaintiff gave inconsistent evidence concerning his reasons for undertaking further retraining and the court should infer from these efforts that he is willing and sees himself as able, for example, to undertake work as a security guard. Secondly, he suffered an aggravation of his right shoulder pain as a result of a motor vehicle accident in February 2016 and has not properly disentangled the pain and suffering consequences of that accident from the consequences of his work-related injury. For this reason, the plaintiff’s pain and suffering consequences do not meet the narrative test. Finally, notwithstanding the restrictions imposed by doctors, the plaintiff retains a capacity for suitable employment building up to full-time hours as a thermographer, tester/tagger, electronic engineering technician, and possibly as retail sales assistant or product assembler.
3 The defendant agrees that if the plaintiff retains a capacity to work 16 hours or less in suitable employment, he will succeed in his application in relation to loss of earning capacity.
4 Mr Rimando was born and educated in the Philippines. He completed Year 12 and then completed an electrician’s apprenticeship. He worked in the Philippines until 1983, when he moved to Saudi Arabia to work as a maintenance electrician. He migrated to Australia in 2002 and did factory work and antenna assembly work until mid-2004, when he began working at Wilson in the winding department as a machine operator, doing heavy repetitive work with heavy cables on large drums. He worked full-time night shift 40 hours per week and regular overtime of about 12 hours per week.
5 By early September 2011, the plaintiff notified his employer of his bilateral shoulder pain, and saw his doctor. He received cortisone injections to both shoulders and continued to work on modified duties. His shoulder pain continued to worsen, and he sought orthopaedic opinion in late November 2011. He had right shoulder surgery (bursectomy and acromioplasty) on 24 March 2012, but his pain did not improve and he had trouble moving his right shoulder at all. He undertook physiotherapy for a time, as well as a number of hydrodilatations (possibly as many as 5) after that time. He was still working full-time on modified duties (doing self-paced machine operating, loading timber and grinding- not a genuine, long-term role), with ongoing shoulder pain, when his employment was terminated on 18 July 2014 on the basis that he was unfit to return to his pre-injury duties. He was involved in a motor vehicle accident in February 2016 and suffered a flare up of his right shoulder pain, among other things. After a time the right shoulder pain returned to the same level as prior to the accident.[1] He has been told by his treating surgeon that no further surgery is recommended for his shoulders and that he must learn to manage his pain symptoms.
[1] Plaintiff’s Court Book (PCB) 15
6 He was “bored” at home and undertook an Instrument Technician’s course in 2015[2] as well as a short security guard course in August 2017, although he considered that due to his shoulder injuries he would be unable to work doing electrical installations or work as a security guard.[3] Since October 2016, he has completed voluntary work at the Salvation Army pricing and tagging clothing. At first Mr Rimando worked five hour shifts, three times per week, but this caused him too much shoulder pain so he dropped his hours to 12 hours per week. The plaintiff’s work regime now consists of working four hours, three days per week on Tuesday, Thursday and Friday from 9.30 am to 1.30pm.[4]
[2] See PCB 18d. This was clarified in cross-examination to be a Certificate II in Electrotechnology.
[3] PCB 18d
[4] Transcript of Proceedings, Rimando v Victorian WorkCover Authority (County Court of Victoria, CI-15-02566 Judge Davis, 2 October 2017) (‘Transcript of Proceedings’) 8
7 Two agencies (Recovre and Nabenet) have assisted the plaintiff in applying for jobs, but he has not obtained any interviews through them. He has searched for jobs, and had one interview for a job as an electrician which was unsuccessful. He does not believe that he could work as an electrician in any event due to his shoulder injuries. He has never worked in an office, has only basic knowledge of cash registers or computers, and has never done retail work.
8 The medical evidence (from Dr Yong[5], Dr Slesinger[6], Associate Professor Richardson[7] and Mr Russell Miller[8]) is to the effect - and I therefore find - that the plaintiff has suffered bilateral rotator cuff injuries as a result of heavy, repetitive work with his employer which has required right shoulder surgery (involving debridement of a partial thickness supraspinatus tear, as well as subacromial bursectomy and acromioplasty) and resulted in a permanent impairment to the function of the shoulders. The impairment is described by Mr Miller in the following terms:
Right Shoulder….There are ongoing symptoms in the shoulder, which are likely to be due to persisting rotator dysfunction, capsulitis and possible residual pathology in the acromio-clavicular joint. He is at increased risk of developing arthritic disease in the shoulder, but on the balance of probabilities, is unlikely to do so. Prognosis for the right shoulder is only fair.
Left Shoulder….There are ongoing symptoms in the shoulder, which are likely to be due to rotator cuff dysfunction, capsulitis, impingement and pathology in the acromio-clavicular joint. Given the client’s poor response to surgery on the right side, he is not inclined to have surgery for the left shoulder. Prognosis is only fair.[9]
[5] Defendant’s Court Book (DCB) 53F
[6] PCB 74
[7] PCB 50
[8] PCB 119
[9] PCB 119
Pain and suffering
9 The plaintiff’s evidence as to the pain and suffering consequences of his bilateral shoulder impairment is to the following effect.[10] His right shoulder pain required treatment as described above. He suffers constant right shoulder pain, and ongoing left shoulder pain, for which he takes one Tramal per day as well as, depending on the level of his shoulder pain, two or three Panadol Osteo at least one day each week.[11] He is woken at night by shoulder pain when he rolls onto his shoulders. His pain restricts his shoulder movements, and, because he has trouble lifting his arms above shoulder height, he is limited in the clothes he can wear. He has trouble with activities that require pushing and pulling. The shoulder pain and limitation of movement also interferes with his ability to drive, cook, have an intimate relationship with his wife, and help her with domestic chores. He and his wife have always been very house proud and he is distressed by his inability to help her as he used to around the house. He has a gentle disposition but has become frustrated and irritable with his family because of his shoulder pain and limitations. He had hoped one day to obtain his Class A electrical licence in Australia and return to work as an electrician but now feels this ambition has been lost to him.
[10] PCB 6-13 (Affidavit of the Plaintiff dated 17 February 2017), 14-18 (Further Affidavit of the Plaintiff dated 27 February 2017), 18a-18b (Further Affidavit of the Plaintiff dated 27 September 2017) and 18c-18e (Further Affidavit of the Plaintiff dated 2 October 2017); See, generally, Transcript of Proceedings 13-50
[11] Transcript of Proceedings 45
10 In cross-examination, Mr Rimando conceded that there were other, unrelated symptoms, such as neck pain, sternum pain, headaches and fatigue, which contribute to his domestic and other limitations, but otherwise did not resile from the matters outlined in his affidavits concerning the pain and suffering consequences of his bilateral shoulder injury.
Findings and reasons
11 I found the plaintiff to be a straightforward witness who appeared nervous, and struggled at times to keep up with the questions put to him, but did his best, given his limited fluency in English, to understand and answer the questions asked of him. Apart from some “functional signs” noted by Dr Taubman in August 2015[12], I have found no suggestion by any medical practitioner that he attempted to exaggerate his symptoms. I consider that his strong work record prior to injury, along with his return to modified duties with the defendant until the termination of his employment, his subsequent return to voluntary work with the Salvation Army, and his participation in training courses at his own expense, demonstrate that he is a well-motivated man. I accept his evidence as to the pain and restrictions flowing from his bilateral shoulder impairment.
[12] DCB 41
12 As to the impact of the motor vehicle accident on 12 February 2016, I note that there is no record of any frank, traumatic injury to either shoulder in the accident. The plaintiff’s evidence that the right shoulder symptoms were transiently aggravated by the motor vehicle accident, and then returned to their pre-accident level, is uncontradicted, and is consistent with what he told Dr Yong[13], Mr Miller[14] and Mr Richardson[15]. There is, therefore, no evidence that the transport accident had a role in the development of a permanent impairment of the right shoulder.
[13] DCB 53g
[14] PCB 121b
[15] PCB 49b
13 I consider that, in terms of pain and suffering, having regard to all the evidence and the matters canvassed in paragraph 9, the consequences of the plaintiff’s bilateral shoulder impairment are more than considerable when compared with other cases in the range of upper limb impairments.
Loss of Earning Capacity
14 I have not taken into account the impact of the transport accident when assessing loss of earning capacity[16] but note that in any event, there was no medical evidence to the effect that the fractured sternum and head injury sustained in the transport accident have led to some identifiable incapacity for employment.
[16]Acir v Frosster Pty Ltd [2009] VSC 454, [170]-[178]
15 The plaintiff was extensively cross-examined about the full-time courses he has undertaken since his injury, in particular his self-funded but unsuccessful attempts in late 2015 and early 2016 to obtain his Grade A licence, which he requires in order to work as an electrician; his efforts to obtain an apprenticeship; his completion of a Certificate II in Security and his intention to undertake a Certificate III in Security later this year. The plaintiff said that he undertook these courses because he was bored at home and because he wanted to obtain work, even full-time work. He said that he received some income payments from the TAC between February 2016 and August 2017 on the basis that he was going to do a security guard course. He agreed that he might be able to monitor CCTV footage. He said that in his current role with the Salvation Army he does not have contact with customers, nor operate the cash register, but merely works “in the back” tagging and pricing clothing. He has no experience in electronics. He cannot operate a forklift. He cannot do work involving bending and stretching. He has not taken any computer courses and only has very basic computer skills. He could not say, without knowing what the job entailed, whether he could perform the work of an electrical tester/tagger. He agreed that when his employment was terminated in 2014 he was managing the modified duties full-time, and that the same restrictions imposed on him by doctors at that time would still apply now.
16 In re-examination, he said that he could not work as a security guard because of his physical restrictions; that he had tried working 15 hours per week at the Salvation Army but found that this worsened his shoulder pain so he cut back to 12 hours per week; and that he gets shoulder pain if he lifts his arms up and after sitting for a few hours.
17 The physical restrictions imposed on the plaintiff by various doctors have remained the same since he first sustained his permanent bilateral shoulder impairment. There is consensus that he has permanently lost his capacity to perform his pre-injury manual work.
18 Dr Sutcliffe, occupational physician, reported on 5 May 2015[17] that Mr Rimando had no capacity for lifting, twisting, turning, working above waist height or performing lifting above several kilograms. She concluded that given the nature of the injury, the restriction of the range of movement, his persisting shoulder pain, and taking into account his age, education, vocational skills, work experience and place of residence, the plaintiff has no capacity in the foreseeable future in either suitable or alternative employment.
[17] PCB 133
19 Dr Taubman, general physician, reported on 10 August 2015[18] that the plaintiff was fit for full-time alternate duties with the following restrictions: no repetitive lifting more than 7 kg, no repetitive work above shoulder height or use of vibratory equipment, and restricted pushing and pulling. Dr Taubman opined that the plaintiff was fit for alternate duties as a machine operator, electrical technician and sales assistant, or to perform light process work.
[18] DCB 41
20 A vocational assessment report by Joanne Bryant, occupational therapist, of CoWork dated 11 May 2016[19] suggested the following occupations “are suitable for Mr Rimando as he contemplates his vocational future”[20]: A or B Grade Electrician (“once he has passed the exams; study assistance would be helpful”); Thermographer; Electronic Assembler; Tester and Tagger; Technician; Sales Person - Electrical. I turn to the medical opinion as to the plaintiff’s physical capacity for the roles identified by Ms Bryant.
[19] DCB 121
[20] DCB 125
21 Mr Miller, orthopaedic surgeon, reported on 26 October 2016[21] that the plaintiff would have permanent difficulty performing work involving repetitive arm actions, use of the arms in the above shoulder position, lifting of weights of more than 5 kgs and overhead activities. On 6 March 2017, Mr Miller reported[22] that the plaintiff would be unable to return to work as a production machine operator, production assembler, factory process worker, tester and tagger, trades assistant, hand packer, or delivery person because of the limitations of the shoulder injuries sustained and because these positions would not comply with the work restrictions he imposed.
[21] PCB 120
[22] PCB 113b
22 The plaintiff’s treating orthopaedic surgeon, Associate Professor Martin Richardson, has not seen the plaintiff since late June 2016[23], when he again encouraged the plaintiff to continue looking for appropriate employment.
[23] PCB 49b
23 The plaintiff’s treating doctor, Dr Chang, provided a series of updated reports concerning the plaintiff’s condition.[24] The most recent report does not deal with the roles proposed by occupational physicians or vocational experts, and I therefore attach little weight to it.
[24] The 2017 reports are documented at PCB 35a-38
24 Dr Joseph Slesinger, occupational physician, reported on 27 February 2017[25] that the plaintiff has the capacity to work with the following restrictions: no over shoulder reaching; no pushing, pulling, carrying or lifting over 5 kg; and no repetitive shoulder work. Dr Slesinger concluded that because of his physical restrictions, the plaintiff could not perform the roles of thermographer, electrician or electronic engineer/technician. He felt a retail sales assistant position would likely be within the electronics or building industry and would therefore be likely to require manual handling outside his current capacity limits. He had reservations about the plaintiff’s capacity to work as a product assembler or tester/tagger given the potential manual handling requirements of these roles, and recommended specific worksite assessments for these roles. In any event, he felt that the plaintiff could only return to work for up to 16 hours per week.
[25] PCB 89
25 Dr Yong, occupational consultant, opined on 31 May 2017[26] that the plaintiff had a capacity to perform tasks within the following restrictions: no repeated above shoulder height or reaching duties; no repeated firm pushing or pulling duties; no repetitive lifting of more than 5 kgs; and initial reduction of working hours. He considered the roles of thermographer and tester/tagger as suitable, the role of electrician to be unsuitable, and the remaining roles of product assembler, electronic engineering technician and retails sale assistant as requiring individual assessment. In any event, he recommended that the plaintiff work within the restrictions imposed for 16 hours per week with a progressive increase to full-time hours within 5 months. Dr Yong noted the voluntary work being undertaken by the plaintiff at the Salvation Army, which involved “minimal manual handling”[27] and indicated that this particular role complies with the restrictions imposed.
[26] DCB 53g
[27] DCB 53i
26 The defendant submitted that the plaintiff has demonstrated through his evidence and through his multiple, as yet unsuccessful efforts at obtaining the relevant certification for work as an electrician, and by his undertaking other courses such as the Certificate II in Electrotechnology and Certificate II in Security, that he is willing and able to return to work. It was submitted that his ability to work full-time is indicated by his full-time attendance at the various training courses he has undertaken, and that the plaintiff would not undertake these courses without an expectation of obtaining employment upon completion. The obstacle to the plaintiff working as an electrician is not his bilateral shoulder impairment, but his inability to pass the relevant tests. The defendant relied on the plaintiff’s evidence that he is capable of doing security work monitoring CCTV on a full-time basis.
Findings and reasons
27 I note that the plaintiff is 60 years old and has a narrow work history, particularly in Australia. His work overseas as an electrician is based on training obtained in the Philippines, conducted according to American measurements and requirements. In Australia, he has been unable to qualify as an electrician in spite of his efforts, nor, at his age, has it been suggested that he could obtain an apprenticeship. In Australia, he has only done unqualified factory work. I consider that the plaintiff is well motivated, and may have undertaken the courses referred to above, partly to occupy himself and partly to see if they can lead him to successfully obtain employment. The fact remains that he has had the assistance of both Nabenet and Recovre, neither of which has been able to identify or obtain suitable employment for him.
28 In relation to possible employment as a security guard, I note that no expert has identified such a role as being suitable for the plaintiff. Nor is there any evidence to the effect that a job exists within the security industry which consists of monitoring CCTV. I therefore attach no weight to the defendant’s submission in this regard.
29 All specialists (Dr Slesinger, Dr Yong and Mr Miller) who considered the proposed employment option of electrician dismissed it as being beyond the plaintiff’s physical capabilities in the light of his bilateral shoulder impairment. Dr Yong considered that the positions of product assembler, retail sales assistant and electronic engineering technician required individual assessment, while Dr Slesinger and Mr Miller ruled these three options out as being beyond the plaintiff’s physical capacity. This means that there is no medical evidence before me that these three roles constitute suitable employment options for the plaintiff and therefore I put them to one side.
30 This leaves the two proposed options; that of thermographer, and tester/tagger, which were deemed suitable employment by Dr Yong, but ruled out as inappropriate by Dr Slesinger and Mr Miller. In the light of the plaintiff’s recent experience of having to reduce his 15 hours of voluntary work at the Salvation Army to 12 hours due to an exacerbation of his shoulder pain, I put to one side the opinion of Dr Yong to the effect that the plaintiff is capable of graduating from 16 hours per week to full-time hours in suitable employment. There remain the conclusions of Dr Slesinger, to the effect that the plaintiff is permanently capable of working a maximum of 16 hours in suitable employment, and those of Mr Miller, that there is no alternative suitable employment available for the plaintiff. In the light of the parties’ agreement referred to at paragraph 3 above, it follows that I am satisfied that the plaintiff has established a loss of earning capacity of 40 per cent or more, and that the loss of earning capacity consequences of his bilateral shoulder impairment are at least very considerable when compared with other cases in the range of possible impairments of the upper limb.
Conclusion
31 Leave is granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering and economic loss in respect of the bilateral shoulder injury suffered during the course of his employment with his employer.
32 I reserve the question of costs.
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