Savic v Salmat Targeted Services Pty Ltd
[2010] VSCA 303
•18 November 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2009 3774
| DAMJAN SAVIC | |
| Appellant | |
| v | |
| SALMAT TARGETED SERVICES PTY LTD | Respondent |
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JUDGES: | NEAVE, MANDIE and TATE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 October 2010 | |
DATE OF JUDGMENT: | 18 November 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 303 | |
JUDGMENT APPEALED FRON: | Savic v Salmat Targeted Services Pty Ltd (Unreported, Count Court of Victoria, Judge Robertson, 15 May 2009) | |
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ACCIDENT COMPENSATION – Appellant suffered a pre-existing work-related injury – Whether subsequent work-related injury was a serious injury – Whether subsequent work –related injury caused a total loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T P Tobin SC with Miss K A Galpin | Zaparas Lawyers |
| For the Respondent | Mr J Ruskin QC with Mr J P Gorton | Wisewould Mahoney |
NEAVE JA:
I have had the advantage of reading in draft form the judgment of Mandie JA. For the reasons given by him, I would allow the appeal.
MANDIE JA:
This is an appeal by Damjan Savic (‘the appellant’) against the decision of a judge in the County Court, on 15 May 2009, dismissing his application pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (‘the Act’) for leave to bring proceedings for the recovery of damages for both pain and suffering and loss of earning capacity in respect of an injury to his right shoulder.
Factual background
It is convenient to summarise the relevant factual background and the evidence before the court below as follows.
The appellant was born in Bosnia on 6 May 1949. After eight years’ schooling, he helped his father in his job which was to grind wheat to meal. In about 1970, having completed army service, the appellant worked as a painter and then in a furniture factory.
In 1988, the appellant emigrated to Australia, leaving his wife and three children behind in Bosnia.[1] On 21 March 1988 he arrived in Australia and on 5 April 1988 he commenced employment with a company (‘Extruded Metals’). Extruded Metals made small metal components from ingots of various types of metal. The ingots were heated and fed into a machine press. The appellant’s job as a press operator involved working at the other end of the machine press. The appellant’s work required him to engage in very rapid, repetitive and heavy duties involving constant pulling and pushing of very large weights. For example, as the
profiles or lengths of metal, which could be as long as 30 metres, came out of the machine press, one of the appellant’s tasks was to use large pliers or tongs to pull them out of the press when they would not come through the press properly.
[1]The appellant’s wife and their two youngest children joined the appellant in Australia in 1994.
On or about 3 November 1995, the appellant sustained injury to his left elbow when he was pulling a heavy metal weight and he slipped and fell backwards hitting his left elbow onto the metal frame of the machine press. He reported this accident and was referred to the company doctor. Subsequently he consulted his general practitioner Dr Loizou on or about 23 November 1995.
In about 1995 the appellant started to get pain in his right elbow as a result of the work process in which he was involved.
On or about 29 July 1996, the appellant was involved in a further accident at work when his right hand was caught between a butt and the edge of a track.
On or about 9 September 1996, the appellant was repetitiously dragging heavy copper and brass materials and suffered injury to his right hand, right elbow, right shoulder and right arm and neck. On 14, 18 and 22 October 1996, the appellant saw Dr Loizou who recorded that the appellant had pain in the right elbow, ‘into the forearm and up into the arm and shoulder’. When cross-examined about this, Dr Loizou said that there was radiation of pain up into the right shoulder and that his right shoulder was tender.
In 1997 the appellant had time off work because the pain in his right elbow was very bad. In or about April 1997 the appellant also had treatment by way of a steroid injection in his right shoulder joint.
On or about 11 November 1997 the appellant was lifting a heavy wooden step in the course of his work and suffered injury to his back and left leg.
In February 1998, the appellant saw Dr Loizou who recorded pain in both the elbows and the right shoulder. In March 1998, Dr Loizou recorded that certain treatment had resulted in an improvement in relation to pain in the right shoulder but no improvement in relation to the appellant’s elbows. Overall, Dr Loizou’s testimony was to the effect that predominantly the pain experienced at this time by the appellant was in his elbows but that, from time to time, the appellant also complained of pain in the right shoulder.
On 13 October 1998 the appellant swore an affidavit in support of an application for compensation under the Act in which he said that as a result of the foregoing industrial accidents and the general nature of his work with Extruded Metals, he suffered from injury, pain and restriction in his back, left leg, right hand, right elbow, right shoulder, right arm, neck and left elbow. He deposed that he had difficulty sleeping at night, that he had difficulty bending and lifting and that he had difficulty and restriction in sitting and standing for any length of time. He said that he had limited strength in his arm and hand because of the injuries. He said that his treatment for the injuries included a series of injections into both elbows and into his right shoulder as well as medication. He said that he had undergone surgery to his right elbow. His affidavit concluded by stating his belief that he was permanently restricted in his ability to perform manual work because of his injuries.
In 1998 Extruded Metals advised the appellant that they no longer had any suitable duties for him and in 2000 he was retrenched.
In December 1999, the appellant applied for a serious injury certificate in order to initiate a claim against Extruded Metals. In an affidavit sworn 21 December 1999, he said, among other things, that as a result of working constantly with his right arm he had commenced and developed problems with his right shoulder and that, as a result of the injuries to his right shoulder and right elbow, he was not fit for his pre-injury work or any manual work which placed strain upon his right arm and right shoulder. On 5 October 2000, the appellant settled his claim against Extruded Metals for common law damages arising from his injuries as a result of which he received the sum of $300,000 plus costs and, in addition, he retained his past benefits.
At some time after his retrenchment by Extruded Metals, the appellant made a ‘superannuation disablement claim’ under an AMP superannuation plan of which he was a member. On 13 November 2000, Dr Loizou signed a medical report and certificate for the purpose of this claim which stated that he did not expect the appellant to ever be fit to return to normal work and that he did not think that the appellant would ever be able to do a job for which he was reasonably fitted by education, training or experience. An employee’s statement signed by the appellant and dated 6 March 2002 described his injuries and emphasised the condition of his elbows, although there was also mention of trauma to his lumbar spine, soreness in both knees, limitation of neck movement and pain in the shoulder. This claim continued to be assessed by AMP during 2003. I do not think that the evidence before the court below discloses whether or how the claim was resolved.
According to the appellant[2] ‘the injuries I had whilst I was at Extruded Metals slowly improved over the years [so] I started to look for some part time work’. In 2004, the appellant purchased a business distributing newspapers and advertising catalogues for the respondent, together with the truck used in that business, for $22,000. It was disputed below but common ground on the appeal that this ‘business’ was conducted by the appellant as a ‘worker’ within the meaning of the Act and, as such, as an employee of the respondent. The appellant said that he ‘did not have any pain in the right shoulder for many, many years before [he] started work with [the respondent]’.[3]
[2]Affidavit sworn 6 December 2007, para [6].
[3]Affidavit sworn 6 December 2007, para [4].
The appellant commenced work with the respondent on 27 June 2004 working five days a week, although, for this purpose, and apparently due to the weight of the materials to be delivered, he had counted upon the assistance of his son. His son became unavailable after about three months and he could not then work full time because he still had problems with his back.[4] He therefore arranged to work three days per week but the respondent subsequently reduced this to two days per week. He worked on Tuesdays for 10 to 12 hours and Thursdays for six to seven hours, delivering newspapers but not catalogues. The reason for this was that there were about 30 different catalogues and, without the assistance of his son, the appellant could not read the instructions concerning their distribution. The appellant would collect the manifest on Saturday containing the names and addresses and delivery details and would then, with some difficulty, work out his routes for the coming week. He would deliver to about 50 sites in one day.
[4]Affidavit sworn 6 December 2007, para [6].
The appellant described his work as follows:[5]
My truck has a 3.5 tonne capacity but it could only hold three pallets, but there was room for other material. On Tuesdays I would do 2 loads and each load would involve between 5 and 6 pallets of goods. The truck was loaded as follows. The forklift driver would place the first pallet in the truck. Then he would bring the second pallet, and push the first pallet towards the back of the truck and then he would bring the third pallet and he would push the first and second pallets forwards. I would then unload the bundles of paper from the third pallet and place them on the floor by the side of the pallets. When that pallet was unloaded it was removed and another pallet was put in the truck and I would unload that, and if 6 pallets of goods had to be delivered then I would manually unload the fifth pallet load. So there were always three loaded pallets and 2 or 3 pallet loads which were stacked in the truck. Each of the pallet loads weighed between about 400 kilograms and 700 kilograms of paper. …
On Thursdays I usually took between 7 and 8 pallet loads of goods and in order to fit the whole load into the truck each of the pallets had to be unloaded so that there were no pallets in the truck on this run. Once the truck was loaded I would drive to the different areas then unload the bundles of paper at the specific drop off points. To do this I [had] to climb into the back of the truck, which does not have a handrail, and so what I used to do is to stand on the metal rung, and then pull myself up by the side of the truck. Once inside the truck I would then lower the hand trolley to the ground, and then climb back out of the truck and then start unloading the bundles onto the hand trolley. While I [was] standing on the ground unloading the bundles, it [was] necessary for me to reach above shoulder height to reach the upper most bundles. Each of the bundles only weighs between about 5 to 10 kilograms, but it was my normal practice to lift a couple of bundles at a time, otherwise it would take too long to complete the runs.
[5]Affidavit sworn 6 December 2007, paras [8]-[9].
On Saturday 11 February 2006 the appellant attended the respondent’s warehouse, as usual, to pick up the manifest for the next week’s delivery and drop off the invoices from the previous week. While walking through the loading area he tripped and fell. After the fall the base of the appellant’s right hand, his right shoulder and his left knee were sore. The appellant found it impossible to go back to his delivery duties because of his right shoulder pain and restricted movement. The shoulder pain made it too difficult for him to lift the bundles of newspapers off the truck and manually handle them.
The appellant saw Dr Loizou on Monday 13 February 2006. He complained of pain in the right shoulder and left knee. On examination, Dr Loizou found moderately severe tenderness over the shoulder joint and that abduction was limited to 10°. After three daily sessions of short wave diathermy, Dr Loizou considered that the response was very poor and on 16 February 2006 he injected the appellant’s shoulder joint with a steroid. The appellant reported some improvement and Dr Loizou found that abduction increased to about 30°. By early March Dr Loizou found that the shoulder abduction was at 80°. On 10 March 2006 Dr Loizou injected the appellant’s shoulder joint again and the appellant reported some improvement.
By March 2006 the appellant’s shoulder was improving and Dr Loizou gave him a certificate for light duties. However the respondent was unable to provide alternative employment to the appellant. In or around the same month, Dr Loizou referred the appellant to a physiotherapist because, while he was experiencing less pain, his shoulder was becoming stiff.
On 2 May 2006, Dr Loizou reported that, despite further treatment by the physiotherapist, there had not been any further or significant improvement and it was possible (according to the physiotherapist) that the appellant might be developing a frozen shoulder. Dr Loizou said that the appellant presented with persisting pain and stiffness in relation to the right shoulder.
On 16 August 2006, Dr Loizou noted that the appellant had been certified as fit for modified duties (‘avoid heavy, repetitive use of the right arm, no above-shoulder use’). Dr Loizou reported that he considered that the appellant had capacity for ‘modified work’. On 24 August 2006, Dr Loizou reported that the appellant continued to experience significant symptoms and disability as a result of his right shoulder injury and that he was fit only for modified duties. Dr Loizou said that the appellant was awaiting hydrodilatation and manipulation under anaesthetic and he was hoping that this would have a positive impact on his symptoms and disability.
On 29 August 2006, Mr Rod Dalziel of the Melbourne Orthopaedic Group saw the appellant for the second time, having ordered an MRI on the first occasion. Mr Dalziel said that the MRI was compromised by movement of the appellant but that it probably suggested that he had a tear of the insertional portion of the rotator cuff, associated with some local degenerative changes. Mr Dalziel referred to some surgical options that the appellant was unwilling to undertake, saying that the appellant ‘appeared to be committed to a pattern of voluntary neck and shoulder restriction of motion’ but that this was not to underestimate the likely injury. I interpolate that Mr Dalziel did not, it seems to me, set out a satisfactory basis for his analysis of the appellant’s mental state (even assuming that he had any expertise to do so) and that, if anything, he understated the injuries reported by the radiological investigations.
On 1 November 2006, the appellant was seen by Mr Peter Mangos, General Surgeon. Mr Mangos said that the appellant was a big man (6‘ 3” in height and weighing 120kg) and that his English was very poor. Mr Mangos reported that the appellant moved reasonably well and that there was no obvious wasting or deformity and that he was very reticent to move the right shoulder when dressing and with general movements but that he moved reasonably well when performing activities close to his body. Mr Mangos said that the right shoulder was markedly restricted in range but not particularly painful or irritable. Mr Mangos said that the appellant had marked limitation of movements in the right shoulder, flexing to 90°, extending 20°, abducting 80°, adducting 20°, internally rotating 20° and externally rotating 85°. He said that the appellant was suffering from a frozen right shoulder with tendonitis, bursitis and capsulitis. Mr Mangos concluded:
He is certainly not fit for pre-injury employment and this is permanent … with regards to alternate work I think it is possible for him to do some work, say three hours per day, four or five days a week performing work at waist level using his hands only. He speaks very little English and he has other problems, that is of the neck and back and I expect that this is not really a practical proposition for him to return to permanent effective work. I consider therefore that he is totally and permanently incapacitated … The prognosis for return to work is poor.
I note that Mr Mangos confirmed his above opinion on 3 April 2009 adding that he did not think that the appellant could cope with any alternate duties however restricted as ‘he is basically a labouring man and needs normally functioning arms and shoulders and a sturdy back’.
On 6 December 2006, the appellant’s right shoulder injury was assessed by Mr Charles Flanc, Vascular and General Surgeon. In a full report dated 20 December 2006, Mr Flanc said, inter alia:
In my opinion, Mr Savic is not fit for any work which involves lifting of heavy weights with his right upper limb, particularly above the horizontal level.
I also believe that work involving heavy lifting and frequent bending or heavy and repetitive use of both upper limbs would make him vulnerable to a recurrence of bilateral epicondylitis of the elbows, and pain in the neck and lower back.
On assessing his capacity for light alternative duties, I have considered the following:
1.Theoretically, he has the capacity of performing light duties at waist level. Mr Savic told me through his son that his job was terminated because ‘there were no light duties available’. ‘He would be prepared to try a suitable light job if it were offered’.
2.His English is poor and he is now 58 years. I have doubts whether he would be a suitable candidate for vocational retraining. Nevertheless, a comprehensive assessment would be appropriate.
3.Mr Savic has limited education and has always been involved in manual work and it would probably be difficult to find a suitable and sustainable occupation for him.
On considering these factors, it is my opinion that realistically he has no current work capacity and this is likely to be permanent.
I note that, on 29 July 2008, Mr Flanc, after examining the appellant and considering various medical reports made since his earlier examination, confirmed his above opinion concerning the appellant’s capacity for employment.
On 8 December 2006, the appellant underwent a procedure to stretch his shoulder (hydrodilatation). After this procedure, the level of pain immediately increased but the appellant’s shoulder generally improved.[6]
[6]Affidavit sworn 6 December 2007, para [12].
On 7 February 2007, Dr Loizou reported that, while there was still a degree of disability, the appellant reported significant and sustained improvement both in pain and stiffness and, on 11 February 2007, Dr Loizou reported that the appellant continued to experience ongoing symptoms in relation to his right shoulder but these appeared to be less severe since the hydrodilatation procedure. Dr Loizou said that he had prescribed anti-inflammatory medication and that he continued to certify him as fit for light duties with the proviso being to avoid heavy repetitive use of the right arm or use of the arm above shoulder level.
On 13 February 2007, the appellant was seen by Dr Michael Baynes, Occupational Physician, at the request of the respondent’s solicitors. Dr Baynes said that the appellant was fit for duties where there was no lifting greater than 5 kg and no lifting above chest height with the right arm. Dr P D Clark had briefly expressed a similar opinion in a report dated 17 May 2006 to the respondent’s insurers.
On 28 February 2007, the appellant was examined by Mr Stephen Doig, Orthopaedic Surgeon, who diagnosed a right frozen shoulder probably secondary to a right rotator cuff tear. Mr Doig reported that he did not consider that the appellant was capable of returning to his pre-injury employment but that he would be able to do jobs which did not require him lifting his arm above the head.
The appellant was examined by Professor Afif Hadj, General Surgeon, on 4 April 2007. The appellant told him that he had a constant pain in the right shoulder, that any movement of the shoulder caused pain and that he was unable to sleep on the right side of the body. The appellant told him that he could not lift his right arm above shoulder level and had difficulty carrying heavy objects. Professor Hadj then stated in his report to the appellant’s solicitors:
I discussed with him the possibility of returning to work. This man has a very poor command of the English language. He would have difficulties in obtaining full time work. If he were to return to work, he would have to perform work that does not require repetitive movements of the shoulder or the lifting of heavy objects. As he is right-handed and as the injury is to the right upper limb, and considering his age, I am of the view that he is probably not going to be able to return to work.
I consider that your client is not able to return to his pre-accident employment. Overall, I do not believe that he has a current work capacity and it is my view that he is likely to continue for an indefinite period of time to have no work capacity. As stated above I consider that your client is unlikely to be employed in realistic employment in the open market.
In his affidavit sworn 6 December 2007, the appellant said that he was in the process of selling his truck because, even though there had been improvement in his shoulder, there was no way that he could go back to delivering newspapers. In fact, the appellant has not sold his truck. The appellant also deposed that he often drove his older grandchildren to school and that he played with his grandchildren, of whom there are four, in the park, although he had to be careful that they did not pull on his arm. He said that he was able to pick up the smallest grandchild (then aged one) if he did it carefully. He said that, if he lifted any weight or moved his shoulder in an awkward way or did a task such as washing his car, the level of pain increased. He deposed that the pain was always worse at night and he often needed to take painkillers before going to bed. It was not unusual for him to wake up with very bad pain in the right shoulder. He continued to have physiotherapy treatment once per week. His affidavit concluded:
I am now 57 and I think maybe I won’t work again because while I can do things, it was difficult to find work after my first injuries, and I had [to] end up buying the business to get an income. My English is very bad and I am not confident in speaking the English language. I am able to read only a little bit of English and I do not write English. Even though I only worked 20 hours or so a week with [the respondent], I was able to earn a good income, at times more than $1,000 a week, before business expenses, but usually between $800 and $900. That opportunity to earn good money has now gone.
On 20 January 2008, the appellant’s physiotherapist, Mr Andrew Phu, opined that the appellant suffered from a right shoulder pathology, in particular, a tendinopathy of his right supraspinatus muscle and that there was also some adhesive capsulitis. He said that he believed physiotherapy would only provide temporary relief.
The appellant was examined by Mr John F O’Brien, Orthopaedic Surgeon, on 5 March 2008. Mr O’Brien said that the appellant presented with very definite restriction of movement of the right shoulder that he considered represented adhesive capsulitis of the shoulder. He said that investigations following the injury suggested rotator cuff inflammation but that it now appeared from the physical signs that the inflammation had affected not only the rotator cuff but the glenohumeral joint resulting in generalised capsulitis and restriction of all movements of the shoulder. Mr O’Brien said that the prognosis was not good and that it was likely that the appellant would continue to experience ‘painful restrictions of right shoulder movement’. Mr O’Brien concluded:
Thus I would consider he would not be capable of a return to his pre-injury occupation, which is obviously described as requiring a moderate amount of lifting. I would, however, consider the patient is not totally incapacitated from the physical perspective and would be capable of undertaking light physical tasks using the right dominant arm, but not specifically of a repetitive type nature.
I nevertheless note the patient’s employment history and the presence of multiple other symptoms and therefore I would suggest that it is most unlikely that this patient, from the practical situation, will return to any form of gainful employment.
In fact, I think I would conclude that this patient now is totally and permanently incapacitated. I did note the job options which have been identified. From purely a physical perspective in relationship to the patient’s injured right shoulder, duties as identified, I would suggest, are within the physical bounds of the patient. Nevertheless, it may be difficult for the patient to sustain repetitive cutting as a process worker. The various symptoms such as back pain and knee pathology would also preclude the patient from prolonged standing and thus I would suggest, as noted above that when the overall medical aspects are considered, this patient is in fact totally and permanently incapacitated.
The appellant was referred by his solicitors to Australian Vocational Link Pty Ltd for a vocational assessment. Ms Leonie Schneider, a highly qualified vocational counsellor and the managing director of that company, provided a 30 page well-reasoned report dated 4 June 2008. Ms Schneider said that the appellant, having been a manual labourer throughout his working life, now lacked useable transferable skills. She said that the problem with ‘work capacity’ also lay in the fact that while theoretically he could perform very light sedentary work, he was not actually educated, qualified, experienced or skilled to do so. She said that there were quite significant physical reasons and even more considerable non-physical obstacles to overcome that prevented him engaging in vocational retraining. She concluded:
… due to his poor background of relevant education, his lack of oral and English literary skills, his dearth of useable transferable work skills, his chronic pain and his age and because of the nature of his physical restrictions I have drawn the conclusion that [the appellant] has ‘no current work capacity’. Indeed I believe that because he is a very poor candidate for vocational retraining, he is likely to remain totally incapacitated for all work and unemployable into the foreseeable future, probably indefinitely.
Ms Schneider, in her report, considered a range of possible jobs and occupations but found a number of reasons in relation to each of them that the appellant lacked the capacity to undertake them. Ms Schneider confirmed her opinion in a later 11 page report dated 13 April 2009 in which she also found that the appellant was incapable of performing the duties of a process worker, packer, machine operator, station hand or assistant and tram driver. I note that Ms Schneider was not cross-examined below and that the respondent called no expert vocational evidence to support a contrary conclusion or, with one exception,[7] to prove the existence of any occupation suitable to the appellant involving ‘light duties’.
[7]The respondent relied upon a document comprising a table prepared by KTM – SDA Group Pty Ltd which set out labour market information on various occupations suggested as suitable for the appellant – Ms Schneider dealt with those suggestions in her second report.
On 13 June 2008 Dr Loizou reported that he continued to certify the appellant as fit for modified duties but that ‘when looking at the total person’ one also had to allow for his previous history of chronic low back and neck pain and bilateral epicondylitis,[8] history of depression since 2000, poor command of English especially in relation to reading and writing, age and level of education and limited work skills as an alternative to manual jobs. Dr Loizou concluded that ‘realistically he has no current work capacity’ and as his overall condition was unlikely to improve, his current lack of work capacity was, in his opinion, permanent.
[8]In the appellant’s case, related to the elbows.
On 10 October 2008, the appellant was examined by Mr Thomas Kossmann, Orthopaedic Surgeon, who considered that the appellant would be able to carry out light duties as long as he was not required to lift his arm above his head.
On 27 October 2008, the appellant saw Mr Clive Jones, Orthopaedic Surgeon, at the request of the respondent’s solicitors. Mr Jones considered that the appellant had a ‘mild degree of disability in his right shoulder’ and that the appellant was overstating his symptoms. Mr Jones also briefly stated that he felt that the appellant would be capable of undertaking work such as that of ticket sales person, automobile driver, train or tram driver, process worker or station staff but it does not appear from his report that he gave any detailed consideration to this question. He had earlier expressed an opinion along the same lines.[9]
[9]In a letter to the insurers dated 29 June 2006.
On 26 November 2008, Dr Loizou reported that he considered that the appellant remained unfit for his pre-injury employment as well as for any suitable alternative employment and that, ‘the right shoulder injury causes by far the most of his current pain and disability’.
In a further affidavit sworn 27 April 2009, the appellant said that he still had a lot of pain in the right shoulder. He had trouble lifting his arm above shoulder height. He had a big problem sleeping as, if he turned onto his shoulder, the pain would wake him. He further deposed that he and his wife lived on a small farmlet in Melton – they lived in a unit on the property and his son and family lived in the main house. There were 35 – 40 fruit trees and some vegetables which his wife mainly looked after – he helped by doing some watering and was able to prune the trees while they remained small.
The appellant was cross-examined during the trial below. He described his domestic activities as including washing and vacuuming his car, mowing the lawn, raking leaves and pruning small fruit trees. The appellant said that his son owned and operated a concrete pump and he sometimes assisted by using his truck to collect a load of fine sand which his son used for cleaning the hoses on the pump. On those occasions, the family, including himself, assisted with emptying the sand from the truck. The appellant said that he used a shovel and, standing on the ground, would shovel sand from the tray of the truck which was about one metre above the ground. The transcript indicates that the appellant demonstrated what he did to the court.
The appellant further testified that he had tried to obtain employment since leaving the delivery job. He went to ‘Employment Plus’ twice a week. They looked for him for a cleaning job or a job delivering mail but nothing suitable was found. The appellant was asked questions about what kind of work he might be able to do and the following exchange occurred:
His Honour: Could you do light factory processing work?
MrSavic: Of course I would do some light work because I was on light duties before. When they asked me at Employment Plus, what sort of work would I be able to do or would I like to do and I said anything where I could do a little bit of sitting, sit for a while, stand for a while and walk around for a while.
Counsel:If that was the case you could work?
MrSavic: Possibly, yes.
Counsel:I’ve used the phrase process worked but that could also be – do you know what a packer is?
MrSavic: Yes of course I know.
Counsel:Similarly you could do that sort of work?
MrSavic: Probably, where there is no system where I have to keep up with everyone.
Counsel:Also from your time in the heavier metal industry you were used to operating machines, machine operator?
Mr Savic:Yes.
Counsel:And similarly if you could get up and move around a bit you could do that job?
MrSavic: Depends, it all depends on the type of job.
Counsel:Finally, your last employment was that effectively of a driver, is that right?
Mr Savic:Yes.
Counsel:You can drive now?
Mr Savic:Yes.
Counsel:In fact you still have the same truck?
Mr Savic:Yes. The truck is automatic.
Counsel:But that sort of a truck you could use to deliver things?
MrSavic: I could deliver and pick up but I could not unload and load and not distances, I could not do a long distance.
Counsel:So you could deliver in a small local sort of capacity, you could work that sort of a delivery?
MrSavic: Yes, absolutely.
Judgment below
This Court must decide the question for itself. However it is appropriate to mention a few matters in relation to the judgment below. There was an issue before the Court below, not raised on appeal, as to whether the appellant was a ‘worker’ within the meaning of the Act. That issue was determined in favour of the appellant. In relation to the appellant’s claimed level of incapacity in his right shoulder, the judge expressed some perplexity as to how the appellant was able, even on an occasional basis, to mow his lawn using a push mower and to assist his son by shovelling sand from a truck. His Honour said that such activities, even performed on an intermittent basis, did not appear to be consistent with the appellant’s claimed level of incapacity in his right shoulder.
After considering all of the medical evidence, the judge found that as at the date of the appellant’s fall on 11 February 2006 the appellant had a longstanding pre-existing condition in his right shoulder, namely, rotator cuff tendinitis and a ‘wide raft of pre-existing medical conditions such as to his back and various other body joints’. His Honour said that the appellant had to establish that any additional impairment caused by the injury on 11 February 2006 involved a serious long term impairment or loss of a body function. His Honour concluded that while the injury to the appellant’s right shoulder resulting from his fall on 11 February 2006 was an unpleasant injury he was not satisfied that it was a serious injury within the meaning of the Act.
The judge found that, given the appellant’s age, his educational background, his limited English skills and his wide raft of medical conditions, it was unlikely that the appellant would be gainfully employed in any capacity. His Honour added that it had to be remembered that, while engaged with the present respondent, the appellant was only indeed working some two days per week. Notwithstanding that, his Honour appears to have concluded that the appellant’s injury was not a serious injury with respect to its loss of earning capacity consequences. However, given that this Court must decide the matter for itself, it is unnecessary to examine the judge’s reasoning in that regard.
Submissions
Senior counsel for the appellant accepted, although not conceding the point, that it would be difficult for the appellant to satisfy the Court that the appellant had suffered a serious injury, within the meaning of the Act, with respect to the pain and suffering consequences thereof. This was primarily because of the evidence relating to the appellant’s previous injuries and with respect to his continuing ability to undertake some relatively strenuous physical activities both at home and in assisting his son.
Senior counsel for the appellant accepted that the appellant’s application for leave to bring proceedings depended upon the establishment of a total loss of earning capacity. It was submitted that the evidence established that there was such a total loss of earning capacity. This was because the injury to the appellant’s right shoulder prevented him from returning to his pre-injury part time employment and because the evidence further established that his injury, in all the circumstances, prevented him from being able to undertake any alternative employment. These circumstances included his age, level of education, lack of English and his other medical conditions. The appellant relied on the preponderance of medical evidence to that effect and, in particular, upon the vocational assessment evidence. The appellant submitted that the evidence as a whole demonstrated that the appellant had no residual earning capacity.
Given the appellant’s stance on appeal, it is appropriate to go directly to the respondent’s submission in relation to whether the appellant suffered a serious injury with respect to its loss of earning capacity consequences. In that regard, the respondent submitted that it was fundamental to the appellant’s case that his evidence should be accepted as to the level of additional pain and restriction caused by his shoulder aggravation injury. It was submitted that the Court should not accept the appellant’s evidence that he was unable now to perform the restricted duties that he had been able to perform prior to his fall on 11 February 2006. Alternatively, it was submitted that the appellant’s aggravated shoulder condition at most prevented him from work requiring him to lift his arm above his shoulder – this did not add to his pre-existing work incapacity to the necessary extent to justify a finding of serious injury on that basis.
The respondent submitted that the preponderance of the medical evidence was that the appellant could work in light employment. Indeed, the appellant had conceded in his own evidence a capacity for some work. The respondent submitted that the vocational evidence from Ms Schneider depended for its validity upon an assumption that the appellant did not have the physical capacity that the evidence as to his domestic and other activities subsequently showed that he did have. Her opinion assumed, contrary to the fact, that the appellant was ‘a train wreck’ in terms of his capacity for employment.
Conclusions
In my opinion, the appellant’s submissions as summarised in [51] above should be accepted. I consider that the preponderance of the evidence, both medical and vocational, establishes that the appellant has incurred a total loss of earning capacity as a result of the injury to his right shoulder suffered from his fall on 11 February 2006. I see no reason to reject the appellant’s evidence that he was now unable to perform the restricted duties that he had been able to perform in his part time employment by the respondent prior to his fall.
The appellant’s own evidence demonstrates a stoic attitude to his injury and a willingness to find alternative employment, if possible. In addition, the appellant was prepared to say that he might be capable of some light work, albeit unidentified. Despite these frank admissions by the appellant and his description of the physical activities that he was still able to perform, all of which might be viewed as amounting to ‘concessions’ destructive of his case, I think that the reality is that the appellant’s capacity to perform ‘light work’ is theoretical only. The preponderance of the objective and expert evidence supports that analysis and the appellant’s attitude should not in the light of that evidence be permitted to detract from this conclusion.
Further, the evidence as to the appellant’s capacity to perform sporadic strenuous activities in a domestic situation does not undermine the medical and vocational evidence that he has no residual earning capacity, particularly given the failure to cross-examine Ms Schneider and the absence of any expert evidence seeking to grapple with the details of her comprehensive reports. After all, Ms Schneider’s conclusion was based on a range of factors including the appellant’s age, limited education, poor English skills, chronic pain and the nature of his physical restrictions.
For these reasons, I would allow the appeal.
TATE JA:
I also agree.
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