Slade v Philip Morris (Australia) Limited (ACN 004 694 428)
[2021] VCC 306
•25 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-02731
| KIRK WILLIAM SLADE | Plaintiff |
| v | |
| PHILLIP MORRIS (AUSTRALIA) LIMITED (ACN 004 694 428) | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2021 | |
DATE OF JUDGMENT: | 25 March 2021 | |
CASE MAY BE CITED AS: | Slade v Philip Morris (Australia) Limited (ACN 004 694 428) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 306 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the left and right shoulder – pain and suffering conceded – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Richter v Driscoll [2016] VSCA 142; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Humphries & Anor v Poljak [1992] 2 VR 129
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Mr A Dimsey | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr A Middleton | Lander & Rogers |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant from October 1999 until November 2014 (“the period of employment”) and particularly August 2011 and 6 September 2009.[1]
[1]Originating Motion
2The application is brought pursuant to s134AB(37)(a) of the Act. The relevant body functions are both shoulders separately.
3The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, pain and suffering having been conceded at the commencement of the hearing.[2] While this concession was made, it was not specifically in relation to the right or left shoulder. As the plaintiff’s dominant concern now is his right shoulder,[3] my decision in relation to loss of earning capacity will focus on that impairment.
[2] T2
[3]Transcript (“T”) 4
4The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
5The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
6In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
7Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
8Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
9Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
10I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[4] and Richter v Driscoll[5] in reaching my conclusions.
[4] (2005) 14 VR 622
[5] [2016] VSCA 142
11The plaintiff relied upon two affidavits and he was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
12The plaintiff is presently aged forty-nine, having been born in August 1971. He is right hand dominant.
13Having completed Year 12, he obtained a Bachelor of Arts at Deakin University. After his studies, he obtained a heavy rigid licence. He has been employed as a truck driver and courier and also done some work building mudbrick homes.
14After he finished his BA, the recession hit, and he just could not find work. That is why he worked as a courier and truck driver and “whatever”, just to try and get some employment. Nothing was eventuating, so he asked a friend how he could get a job with the defendant.[6]
[6]T16
15In about 1997, the plaintiff commenced work as a process worker with the defendant, which then operated a cigarette factory in Moorabbin. His job involved manual duties and he later graduated to working on the packing machines, and then the making machines.
16He worked a twelve-hour shift, usually 7.00pm and 7.00am three days a week, and occasional overtime. He was capable of earning up to $2,000 gross per week.
17He believed his left shoulder injury gradually developed over several years, but in about August 2011, the pain increased and became more acute. Leading up to that time, he was regularly working on one of the making machines.
18The plaintiff had to clean out debris from the machines at regular intervals during his twelve-hour shift. Doing so, he had to reach forward with his left arm and manually wind a wheel and/or guard on the machine to clean out the debris. After doing that job with an outstretched arm over long periods, his left shoulder became increasingly sore, initially, a clicking in the shoulder joint and then, an increase in pain until it felt like a sharp, stabbing sensation in his left shoulder.
19In mid-August 2011, he attended East Bentleigh Medical Group, where he was prescribed medication and was referred for left shoulder scans. He had an ultrasound on 19 August and on 29 August 2011, had an ultrasound-guided cortisone injection into his left subacromial subdeltoid bursa. This provided only minimal relief. He was referred to orthopaedic surgeon, Mr Steve Csongvay, who referred him for further scans, including an MRI scan on 18 November 2011, following which Mr Csongvay recommended surgery.
20On 21 February 2012, Mr Csongvay performed a left shoulder arthroscopy and subacromial decompression (“the first operation”). Post-surgery, the plaintiff’s arm was placed in a sling and he was given pain medication and advised to rest.
21He believed he was off work completely for about three months, during which time he underwent rehabilitation and attended his surgeon for review. He continued to experience pain and discomfort in his left shoulder. On 17 October 2012, he had a second injection into his left shoulder.
22The plaintiff eventually returned to work on modified light duties, mostly doing administrative tasks. He gradually increased his hours and duties but was advised by his doctors to avoid the heavier lifting associated with the packing machine. Despite this, he was rostered to work mainly on that machine. After a few weeks, his left shoulder again became painful and he started to favour his right arm heavily over the next few months and soon began to feel pain in it also.
23On 27 June 2013, the plaintiff had a left shoulder MRI scan.
24On or about 16 September 2013, when the plaintiff was working on one of the making machines, he had to pull a large tray out with both hands and felt a sudden pang of pain in his right shoulder. He was unable to complete his shift.
25The following day or so, he returned to East Bentleigh Medical Group and reported the injury to his general practitioner, Dr Christiansen, who referred him for scans and recommended physiotherapy and advised rest.
26On 7 October 2013, as his pain had been increasing, the plaintiff was referred for an ultrasound-guided cortisone injection into his right shoulder subdeltoid bursa. He saw Mr Csongvay in January 2014, who operated on 18 March 2014, performing a right shoulder arthroscopy and subacromial decompression (“the second operation”). Following that procedure, the plaintiff was discharged with his arm in a sling, provided with analgesic medication and advised to rest.
27He believed he was off work completely for three months and returned in about June 2014 on light duties, though he was still required to use both arms.
28The plaintiff returned to work on modified duties but was never able to return to his pre-injury duties. He was put in the warehouse doing a running stocktake, basically walking around the factory with a scanner going from aisle to aisle. All recording was automated. He did this task until his employment was terminated.[7]
[7]T7
29The job was not only walking up aisles scanning. He also had to go up and down quite a tall ladder. He had to manoeuvre the ladder up and the down the stairs and it was quite hard. There were about five or six different levels of stock from floor to ceiling.[8]
[8]T7
30In about November 2014, the defendant advised it was closing the factory and the plaintiff was made redundant and has not returned to the defendant’s employ. He agreed that if the factory had not closed, he would have kept working there doing those modified duties.[9]
[9]T8
31The plaintiff denied his redundancy was as much as $320,000; he thought it was closer to $180,000. When he left the defendant, he sold his house in Keysborough which he had been renting out. He then moved to Tasmania and has been living with his parents rent free. He had been living with them in their Melbourne house until they moved to Tasmania in 2008.[10]
[10]T20
32The plaintiff received WorkCover payments for about eighteen months after the closure of the factory and otherwise lived on his redundancy money.[11]
[11]T21
33When he moved to Tasmania, shortly after the factory closed, he was not aware he was going to receive ongoing payments. He thought “that was it” and was worried about having to rely completely on the redundancy, pay the mortgage and get to the point of losing everything, so he had to basically consolidate. He therefore sold up and tried to save as much as possible.[12]
[12]T30
34At the time the plaintiff moved to Tasmania to be closer to his family, both shoulders were still painful and he still had restricted range of movement and function. He began seeing Dr Clapton at East Devonport Medical Centre for ongoing treatment and management.
Consequences
35As pain and suffering has been conceded, it is not necessary to discuss the consequences in relation thereto. However, In addition to the various medical procedures, the plaintiff has taken Panadeine on a regular basis. He has had problems with sleep, was able to do limited housework and there had been an adverse impact on the ability to enjoy recreational or sporting activities, such as golf and swimming. His driving was restricted, he felts quite anxious and self-conscious about his situation and low in confidence. [13]
[13]First affidavit
36The plaintiff’s problems with domestic activities and gardening continue, as do difficulties driving further than short distances, causing increasing bilateral shoulder pain. He could not manage a job involving driving and he was despairing of his chances of finding work in the future which he could handle with his physical limitations.
37The arrangement at the moment living with his parents is that he buys the food.[14] His mother does the food shopping. The plaintiff occasionally makes a pizza. He drives his father to the local golfclub and occasionally socialises there for birthdays et cetera.
[14]T20
38They have a ride-on mower, which he occasionally uses on the very small lawn. It takes about ten minutes to mow and then he is “happy to get off it”. It is quite heavy on the steering and just the rotation movement through the shoulder aggravates his right shoulder pain.[15] He trims hedges with a hedge cutter, once every four or five months. That is about the worst thing he can do for his shoulder and he lasts only about five minutes.
[15]T31
Work
39The plaintiff has been unable to return to work since November 2014 and had applied for several jobs without success. These included a job at Mazda handling car parts and work with a transport company, Mitre 10 and Bunnings.
40As a young man, the plaintiff had worked as a sales assistant at McEwans for three years. He applied for Mitre 10 and Bunnings because he had experience in that type of work, but he did not get an interview. He suspected that was because he declared his WorkCover injuries in his application. When asked whether he believed he would be able to do that sort of work, he said he was always willing to give it a go, but he “had hesitations”.[16]
[16]T13
41While he had applied for this sales work, he did not think he would be able to do a sales job, as he had watched how sales staff had to go about their work and the materials they had to restock. It involved quite heavy lifting, like moving paint tins. He would have to get help with stocktaking and moving items.[17]
[17]T36
42The plaintiff filled out pre-employment medical questionnaires for various jobs, but when he disclosed his bilateral shoulder injuries he did not get the job. He asked friends for work, but the response was usually something like “‘sorry mate, we can’t take you on’”. It felt like no one would help him and he felt depressed, helpless and at a loss.
43The rehabilitation provider engaged by the defendant, both with the Mazda job and thereafter, was Rohan Bowles in Launceston.[18]
[18]T10
44The plaintiff had a trial in a spare parts division of a Mazda dealership in Devonport in January 2016. It was like a work experience situation. He did not think the franchise had closed down. He worked in the spare parts section, but his involvement stopped there in January 2016. He does not know if that division is still operating.
45He was able to cope with the job, looking at the computer and identifying parts for vehicles that needed repair but it was quite difficult working with photographs identifying parts as he was not a mechanic. He never took orders; he was basically under the guidance of two others working there. He was not allowed to lift or load the parts. Had he not been in the rehabilitation program, and a normal employee, he would have been required to lift parts.
46He agreed he was allowed to lift moderate weights, but not above shoulder height.[19] He was not work averse; however, his shoulder restricted a lot of what he could do.[20]
[19]T10
[20]T19
47There was no one in the spare parts job at Mazda who was not doing lifting. He had seen the heavy lifting which involved car parts weighing up to 25 kilograms. He could not handle these items with one hand. He would not be able to access parts from storage areas and deliver them to customers. He had difficulty with the ladder, moving handlebars down to lift the wheels so it would roll. Pushing it and manoeuvring it into position was really painful on his arms; it was an awkward piece of equipment.[21]
[21]T37
48The plaintiff was hopeful he might have a chance of using his Deakin BA, which had an environmental major, when going to Tasmania, as it is a “very green state”.[22] His rehabilitation provider had tried to get him a start with National Parks and Wildlife, but he was rejected on the basis of his right shoulder and not being able to do the physical assessment. Also, after he had spoken to people, he found out work as a ranger involved quite a bit of building work and reparation of paths, a lot of earthmoving and a lot of shoulder work, bush clearing, fallen trees, and his right shoulder “was [his] block”.[23]
[22]Dr Carlton’s note of 28 January 2016
[23]T18
49The reference in Dr Clapton’s notes in May 2016 to the plaintiff thinking of doing some VET education at Don College was basically looking to retrain and work with intellectually disabled or elderly people. It was vocational education training, but the course description included cleaning, washing, wheeling people in a wheelchair and lifting, and his right shoulder could not do that job.[24]
[24]T11
50Before working with the defendant, the plaintiff had worked as a labourer at Werribee Zoo and had done truck driving for about six weeks. He had done courier driving for about six months, the majority of which was letters and small parcels, almost like the court documents. He could not do that work now with small parcels, not with his right shoulder, with the repetition and the driving.[25]
[25]T11
51He would not be able to cope with the constant steering of the delivery vehicle for the entire day, and the sliding of the door on the side of the van, because of his right shoulder. Even with pathology couriering, the problem was driving with his right shoulder.[26]
[26]T12
52The plaintiff had also looked for work with a transport company doing anything that might be available, including driving. He had asked his friends and his father’s mates at the golf club, who were sales managers, to see if they had any jobs. He agreed he believed there might be something he could do within their business, but they did not have anything for him.[27]
[27]T13
53In the interview with CoWork in February this year, the plaintiff was “guided” that a driving instructor was something that he could do, and he was not averse to thinking about it. He agreed he had an interest in starting his own business as a driving instructor. That is something that he considered but, again, with the right shoulder he did not think he would manage driving distances to clients. He was trying to think of anything possible he could do. This role was suggested to him by CoWork, along with quite a few other jobs.[28]
[28]T14
54The plaintiff agreed he said he would like to be a driving instructor with his own business because he could employ himself if he was capable of doing the job. He had looked at the job description with his limited computer skills but he did not have any management skills and with the driving around he would just be in too much pain with his shoulder.[29]
[29]T17
55The plaintiff did not think, with his right shoulder, that he might be able to do a ride-on mower job with the council. It was something he would like to do, that is why he told CoWork it was “up his ally,” but realistically he was incapable of it.[30] He thought it would be a good job if his shoulder was able to cope with it, but it cannot.[31]
[30]T14
[31]T15
56Like a lot of jobs he had looked at, with a normal functioning right shoulder he would love to do them, but his shoulder is not functioning and he cannot do them.[32]
[32]T15
57The plaintiff confirmed in his other answers in the CoWork report that he was agreeing the particular job was something he could consider, but it was beyond his capabilities. He did not think he would be able to get a shift short enough for his right shoulder to be able to work as a bus driver.[33]
[33]T16
58The plaintiff agreed there would be more work available in Launceston but it is 100 kilometres from his home.[34] However, after a long drive , he starts to get a constant pain through his right shoulder. He steers with the right arm and then the pain goes right through the shoulder and he just has to stop. The pain starts to kick in after about 30 kilometres and by 40 kilometres, he has to get out of the car. It would be impossible to drive in a job eight hours a day because he would have to take too many breaks and the pain would constantly set in.[35]
[34]T21
[35]T34
59He would not be able to drive earthmoving equipment or vehicles with heavy steering, like a bus. Once the pain is in the shoulders it is pretty much there for the whole day and that is why he has to take extra Panadol. Basically, unless he gets a good night’s sleep, it takes till the next morning until his shoulder is ready to go, but once the pain is in, it is in. With a day’s rest in-between, maybe he could have a go.[36]
[36]T35
60He has never had any experience running his own business; he does not have the skills set to set it up. He has never been self-employed.[37]
[37]T35
61His ability to do deliveries depended upon what he was delivering. He had looked at the Coles delivery vans and could not do that job. He had never suggested anything about Australia Post to CoWork.
62He could not do bar work at a place like a golfclub because he would have to constantly pour beers, buss trays and there would be too much reaching involved.[38]
[38] T18
63Even sitting hovering over a keyboard with his arms in a typing position they fatigue very quickly, and the pain comes through his shoulder, just holding his arms up in a constant position. It is the same when driving for too long, holding his shoulders in an outstretched position. He agreed that he could do some computer work depending on its duration.[39]
[39]T29
64He cannot touch type and he is a one-finger typist. He was not required to use a computer while working with the defendant. He does not know anything about Word, Excel or other programs. He would be able to type for about ten minutes holding his arms up. He has a similar problem holding a phone to his ear. If he had to type for eight hours a day, his right shoulder freezes up and it starts to shake uncontrollably and starts to jitter. That is generally when he will take a couple of Panadol and then he just has to let his shoulder rest for a few hours. The pain goes through the shoulders and it stiffens him right up.[40]
[40]T30
65When asked whether he had approached the rehabilitation provider about any retraining to improve computer skills, he said he did not know who the provider was. “Rohan” went out of the picture because he could not find anything other than the Mazda spare parts. The plaintiff did not approach him to see if he could be retrained, particularly in computer skills.[41] Mr Bowles never arranged any retraining or any computer courses.[42]
[41]T19
[42]T30
66The plaintiff agreed, as CoWork described, that he presented as motivated to return to work by his job application attempts and his enjoyment of earning money. He had told CoWork that if the right job came along it would be pretty hard to knock it back. He wanted to work.[43]
[43]T28
67Despite obtaining a BA, the plaintiff confirmed he had chosen to do physical work but obviously had problems doing so because of his shoulder. When asked whether he had thought about an administrative job, he said he did not have computer skills, he had never been up with them, and he just did not think they were in his “job scope”.[44]
[44]T28
Pain
68In his affidavit sworn 21 January 2020,[45] the plaintiff described pain in the left shoulder every day which could vary in intensity but was constant. Often it would feel like a dull heavy pain in the joint. Even something like holding a telephone to his ear could cause his left shoulder to ache. Holding out his left arm or lifting anything heavy could increase the pain level. If he did too much with his left arm, he could feel a sharp, daggerlike pain. He also experienced pain every day in his right shoulder, which was probably a bit worse than what it was on the left. As with the left, if he attempted a two-handed or one-handed activity, such as sweeping or vacuuming, it could aggravate the pain in his right shoulder intensely, which was problematic for him, as he is right-hand dominant.
[45] First affidavit
69In his recent affidavit sworn in February 2021, the plaintiff deposed that unfortunately nothing had changed in relation to his injuries and their impact on his life since his earlier affidavit.
70There is now less range of movement in the right shoulder compared to in 2019. The fatigue sets in a lot quicker. He has tried exercise and still uses TheraBands daily - it just does not work. There is really no change if he does not do it.[46]
[46]T33
Current treatment
71The plaintiff has seen Ben O’Neill, physiotherapist, in Tasmania since 2016. He now sees him fortnightly. He gets short-term relief from treatment if he has done something the day before. He actually times activities for when he knows he has an appointment, but he does not get any permanent improvement from treatment.[47]
[47]T23
72He has not been doing any strenuous physical work since he has gone to Tasmania, but he does a lot of exercise on his shoulders to try and push them to try and get some strength into them, but it is not working.[48]
[48]T22
73He has not sought additional medical treatment for his right shoulder apart from his general practitioner and physiotherapist, although the right is getting worse. He has not had any contact with his shoulder surgeon since going to Tasmania.
74The plaintiff was referred to an orthopaedic surgeon, Mr Fletcher in Tasmania, for his right knee and had an arthroscopy in 2016.[49]
[49]T22
75The plaintiff continues to use over-the-counter pain relief. He usually takes two tablets first thing in the morning and a few in the afternoon to take the edge off his bilateral shoulder pain.
76Professor Buzzard was wrong recording in September 2019 that the plaintiff was taking six Panadeine a week. He would have been taking Panadol, but the number varied. He confirmed, as he recently told Dr Slesenger, he takes up to six Panadol a day, depending on what he is doing.[50]
[50]T24; T32
77The plaintiff agreed he saw Dr Clapton in March 2019 for back pain and was prescribed Panadeine Forte at that stage for a limited period. He did some stretches and then his back cleared up. He has some back pain from time to time if he overexerts himself, but neither that, nor his knee problem, in any way affects his ability to work.[51]
[51]T25
78The plaintiff’s injuries have had a significant impact on his confidence and mental state and he is devastated to be unable to work and living at home with his parents. He is humiliated and embarrassed about being forty-nine, living at home with his parents and not working.[52] He really has no other option. If he could find work, he would be buying a house.[53]
[52]T27
[53]T31
The Plaintiff’s taxable Income
Financial Year Amount 2009 $88,199 2010 $84,406 2011 $90,769 2012 $88,517 2013 $98,608 2014 $96,111 2015 $85,233 2016 $51,420 2017 $19,134
Medical Evidence – Treaters
Melbourne
79There were a number of reports from the plaintiff’s general practitioner at East Bentleigh Medical Group, Dr Schattner, whom the plaintiff attended until 2014. These included referrals to Mr Csongvay, orthopaedic surgeon, for surgery to both shoulders.
80Dr Christiansen, also from that practice, noted that at the time the plaintiff moved to Tasmania in late 2014, he was advised to find employment which did not involve lifting above chest height or repetitive shoulder movements.
81Dr Christiansen then thought the plaintiff’s shoulders, even after bilateral partially effective surgery, would never return to pain-free movement and could well deteriorate with time.
82The plaintiff saw Dr Christiansen from 28 February to October 2014. He noted that the plaintiff would probably return to work in mid June.
83The plaintiff attended on 10 July 2014 for right shoulder pain. It was noted on 23 that he was working twelve-hour shifts three times a week, not coping with pain in the shoulder after the second day and was unable to go back to work that day. No restriction of not lifting 5 kilograms. It was noted the company was going to close down in November 2014. The plaintiff had said that if he was not on full duties his payout would be affected. There was stress with everyday duties and Zoloft was not helping.
84On 24 July 2014,, the plaintiff attended for his right shoulder injury and was noted to be stressed. On 19 August, both shoulders were painful and imaging was requested of the left shoulder.
85On 23 September, it was noted the plaintiff had missed two days with left shoulder pain and was given a certificate for three days and then usual restrictions. Hydrodilatation had been suggested by the WorkCover specialists.
86On 14 October, the plaintiff complained of right shoulder injury and left shoulder capsulitis, and further imaging requests were written. The plaintiff could not work and complained of pain.
87Mr Csongvay last reported to the plaintiff’s general practitioner, Dr Schattner, in August 2014.
88Mr Csongvay then advised the plaintiff had recovered very well following his right shoulder surgery. The plaintiff had been coping well on his modified duties. Mr Csongvay believed the plaintiff’s current work would finish up on 28 November.
89Mr Csongvay noted the plaintiff had been experiencing aches and pains in his left shoulder, as well as some intermittent left tendinitis in the left elbow.
90Mr Csongvay had advised the plaintiff he should avoid overhead activities with both shoulders and for that reason, he recommended he be kept on his current activity modifications until he had the capacity and ability to look for more suitable work.
Tasmania
91Since moving to Tasmania, the plaintiff has been a patient of the East Devonport Medical Centre.
92As at May 2016, Dr Clapton from that practice, advised he thought the plaintiff would never be able to return to work in his pre-injury duties and hours. Certainly he would be able to pursue gainful employment in the future, and obviously he would have to avoid employment that involving lifting, pushing, pulling or using arms above his head. He noted that the roles detailed in the report of 18 September 2014 were reasonable.[54]
[54] There are no details of these jobs
93At that stage, no treatment was being prescribed, including medication. In addition, Dr Clapton pointed out the plaintiff appeared to be a very motivated man. He told him he had two university degrees and was making active efforts to look for employment in the field of education now he was in Tasmania.
94Dr Clapton’s last contact with the plaintiff was in October 2016 and throughout his association with him, there was no active treatment. Physiotherapy had been tried in the past on the mainland without any benefit and Dr Clapton’s involvement was largely to generate WorkCover certificates every three months.
95The plaintiff started physiotherapy in Tasmania with Physica Physiotherapy in 2014 before changing to Resolve Physiotherapy in 2016.
96Ben O’Neill, physiotherapist from Resolve, reported in February 2017. He then noted the plaintiff was not undertaking any form of employment and as such was not working to his limit. To determine the full extent of his ability, a functional capacity assessment would need to be undertaken.
97In his opinion, the plaintiff would be able to undertake full-time employment that was either office based or did not require overhead use of his arms, lifting, pushing, pulling or repetitive shoulder movements. Due to the functional limitations of both of the plaintiff’s shoulders, additional training or education would need to be undertaken to find him employment, as his previous role would not be appropriate.
98In his July 2018 report, Mr O’Neill noted the plaintiff had been diagnosed with rotator cuff tears and had bilateral surgery. The current restrictions were ongoing weakness, developing tightness and poor functional shoulder ability.
99In his view, the main limitation to the plaintiff returning to work was the closing of the factory where he was employed. The plaintiff had the functional ability to perform suitable duties and did not have the ability to return to pre-injury duties.
100The plaintiff was then being treated with hands-on physiotherapy once a fortnight and completing a homebased strengthening program between appointments.
101Mr O’Neill recommended a return to work plan be implemented to find alternative duties or training that would enable the plaintiff to return to work. By changing the functional requirements of his work, that would change the goals of the physiotherapy treatments. Current benefits were reduction in pain and tightness in the shoulder and improved shoulder functional ability.
102In his most recent report of February 2021, Mr O’Neill noted the plaintiff had required fortnightly treatments to help manage the shoulder tightness and pain due to the original injury and was likely to require ongoing treatment for some time. He also completed a home-based exercise program to maintain strength in his shoulders and was likely to be required to do this for some time also.
103He thought it was unlikely the plaintiff would progress beyond his current ability and it is unlikely he will be able to reduce his current level of restrictions with work.
The Plaintiff’s medico-legal evidence
104Mr Ash Moaveni, orthopaedic surgeon, examined the plaintiff in November 2020 via Telehealth.
105The plaintiff told him he had symptoms in both shoulders, with the right being slightly worse. He had pain in both shoulders every day. It was heavy and dull in nature and could increase in intensity. It was focused over both shoulders scapulary and in the lower part of the cervical spine. He also stated his shoulders wear out quickly. He felt tired and unable to hold out his hands or do heavy lifting or repetitive actions.
106Mr Moaveni noted the plaintiff currently used Panadol Osteo as required.
107The plaintiff was able to drive, however, this was limited to approximately twenty to twenty-five minutes.
108Mr Moaveni diagnosed bilateral shoulder subacromial impingement and rotator cuff tendinopathy bilaterally, consistent with a work cause. He noted the plaintiff had difficulty turning and twisting, and he had severe difficulty with lifting, carrying, reaching and raising his arms given his shoulder injuries. Ability to drive was limited to twenty to twenty-five minutes. He had moderate difficulty with stooping and bending and there was limited and reduced range of motion in both shoulders.
109Mr Moaveni thought the plaintiff, due to his bilateral shoulder symptoms, would have difficulty with work involving pushing, pulling, repetitive actions, overhead loading or repetitive use of the arms. He did not believe he was fit to return to his pre-injury employment as a process worker.
110He thought the plaintiff does not have the capacity to undertake suitable employment, specifically considering his age, education and skill level, work experience and ongoing symptoms.
111Mr Moaveni did not believe the plaintiff was currently able to perform work on a reliable and consistent basis, noting significant symptoms in both shoulders, especially with repetitive use.
112Dr Joseph Slesenger, occupational physician, examined the plaintiff via Telehealth in December 2020.
113The plaintiff described residual bilateral shoulder pain, with the right marginally worse than the left. It was worse with activity and in cold weather and was also prone to deteriorate spontaneously. He advised there was crepitus in the shoulder on over-shoulder reaching. There were sleep issues and he rested regularly to manage his symptoms, including his daytime fatigue and lateral shoulder pain.
114The plaintiff advised he was taking Panadol, up to six a day. In the past he trialled Panadeine Forte, without assistance. Dr Slesenger also noted the plaintiff’s past treatment.
115In terms of a return to work, the plaintiff did light supervisory tasks after the second surgery, performing stocktaking duties in the warehouse before ceasing employment when the company closed in late 2014.
116The plaintiff had not returned to work since. There was no return to work plan in place, and he had not undergone retraining and had not been supported by a return to work coordinator. He advised he had applied for a number of roles, including working as a truck driver and in customer service at Bunnings, without success.
117Dr Slesenger noted the plaintiff had a Bachelor of Arts in Art and an HGV licence.
118Dr Slesenger diagnosed bilateral rotator cuff tears and dysfunction following a soft tissue injury. There was bilateral chronic shoulder pain with possible adhesive capsulitis.
119Dr Slesenger recommended lifting no greater than 5 kilograms, carrying no greater than 5 kilograms, avoid over shoulder reaching and avoid sustained forward bending, avoid driving greater than 10 kilometres, avoid repetitive shoulder tasks, overreaching and sustained forward reaching.
120He advised the plaintiff against returning to his pre-injury role, as the job demands would lie outside his capacity limits. With regard to suitable employment, taking into consideration his current symptoms and functional limitations his limited computer skills and his past employment history, Dr Slesenger thought that, based on his bilateral shoulder impairment, the plaintiff was unlikely to be able to return to work in a role for which he had suitable training and experience on a consistent and reliable basis. He thought the plaintiff was at risk of spontaneous deterioration impacting on his ability to engage in activities.
121Dr Slesenger provided a supplementary report in March 2021.
122Based on the plaintiff’s left shoulder impairment alone and taking into consideration that those symptoms are less severe than his right, and noting he is right handed, his past employment and his age, his residential location, current symptoms and functional limitations, his daytime fatigue and limited computer skills, Dr Slesenger thought the plaintiff could return to work performing suitable alternative duties with restriction, although he anticipated that the plaintiff was likely to have difficulty returning to work on a consistent and reliable basis.
123With regard to the right shoulder impairment alone, taking into consideration that the right symptoms were more severe than the left, his right hand dominance, his past employment history, his age, his residential location, current symptoms and functional limitations, daytime fatigue and limited computer skills, Dr Slesenger thought the plaintiff was unlikely to be able to return to work in a role for which he had suitable training and experience on a consistent and reliable basis.
124The plaintiff was examined by psychiatrist, Dr Leon Turnbull in January 2021.
125He did not think the plaintiff could realistically be diagnosed with any psychiatric condition. The overall story was one of a man who has been fairly resilient, albeit insidiously disappointed over the years at not being able to get work despite trying repeatedly.
126He thought the plaintiff was essentially psychiatrically employable, he was not a particularly skilled man, probably not particularly adept at learning new skills, and he tried to apply for jobs but had not been successful.
127Dr Turnbull did not think there was much in the way of psychiatric incapacity.
Vocational evidence
128Glen Dwyer, occupational therapist at Axiom, prepared an occupational therapy vocational assessment report in February 2021.
129Mr Dwyer concluded the plaintiff no longer had the functional capacity to undertake his pre-injury occupation as a machine operator. Due to his injuries, he no longer had the functional capacity to perform the full and unrestricted duties of any occupation for which he was otherwise suited for by way of his skills, qualifications and experience.
130Mr Dwyer considered the plaintiff’s transferable skills when combined with the effects of the subject injury do not equip him with the necessary prerequisites to perform any unrestricted recognised occupation in the open labour market on a consistent and reliable basis. He thought the plaintiff’s maximum vocational potential was restricted to intermittent positions of supported employment where he required the opportunity to work only within his functional limitations for a supportive and accommodating employer in an environment where it was acceptable for him to perform some, but not all, of the set tasks of a given job, where he could take unscheduled breaks as needed and where he only works on days where he felt able. Supported employment of that nature was not commensurate with unrestricted work in the open labour market and was not indicative of a capacity to earn an income in unrestricted employment in the open labour market.
131Given the medical evidence indicated the plaintiff had a poor prognosis for any further significant recovery, he concluded the plaintiff’s negligible work capacity will likely persist for the foreseeable future.
132Mr Dwyer provided a supplementary report, having been provided with the February 2021 CoWork Labour Market Analysis.
133Having reviewed that report, Mr Dwyer’s view of the plaintiff’s work capacity remained unchanged. He assessed the suggested jobs. He thought the plaintiff did not have the functional capacity or necessary prerequisites for work as a spare parts interpreter, and that did not represent suitable employment for him.
134He considered the functional demands of work as a bus driver were outside the plaintiff’s capacity and that did not represent a viable vocational option in the future. In his view, the plaintiff did not have the functional capacity for work as a mobile plant operator and that did not represent suitable employment. The job of a driving instructor was outside the plaintiff’s functional capacity and he was not qualified for work of this nature. His lack of necessary prerequisites for work in this role precluded him from gaining employment or earning an income in work of this nature.
The Defendant’s medical evidence – treaters
135On 29 December 2015 Dr Clapton noted the plaintiff “is coping well with present job.” The situation was unchanged on 28 January 2016 but “work ran out at Mazda – rehab provider hopefully getting him work with P&W.”
The Defendant’s medico-legal evidence
136The plaintiff saw Mr Richard Pease, orthopaedic surgeon, in November 2013, essentially in relation to his right shoulder injury - before the second operation.
137He thought the plaintiff impressed as a very genuine individual. He noted the plaintiff was then working in a light capacity, protected from bending and lifting activities which would be required to supply the packing machines with materials. At that stage, he suspected the plaintiff would need to remain working in a restricted capacity, either until his shoulders spontaneously resolved or he had direct treatment, noting the return to work plan.
138Dr Ralph Poppenbeek, occupational physician, examined the plaintiff in September 2014. He agreed with the attached return to work plan because the plaintiff told him there was really no alternative. Some of the duties involving lifting caused Dr Poppenbeek concern and he also thought the plaintiff required more breaks. He doubted whether the plaintiff would ever be able to return to pre-injury duties.
139He noted at the time of examination that the plaintiff still had substantial symptoms and examination revealed quite restricted movement, especially in the left arm.
140He suggested further treatment in the form of an ultrasound investigation of both shoulders, a hydrodilatation referral if the ultrasound showed capsulitis, and a physiotherapy treatment program.
141Associate Professor Anthony Buzzard examined the plaintiff in September 2019. The plaintiff then told him he continued to suffer from pain in both shoulders, predominantly the left.
142The plaintiff told him that he left the defendant in November 2014, when he was doing modified work in the warehouse, and had not worked since.
143As far as the plaintiff’s employment capacity was concerned, Professor Buzzard thought he was not capable of carrying out work involving a range of movement of his shoulders greater than that which was demonstrated in his impairment evaluation.
144Professor Buzzard thought it would appear reasonable to accept that would preclude the plaintiff from the type of work he was doing at the time of his injuries. However, he would be capable of other employment if that could be obtained for him.
145He thought the plaintiff had continuing limitations in the movement of both shoulders, with some pain on exertion, which was still contributed to by the work injury.
146Professor Buzzard was asked to comment on the CoWork jobs. As he had not seen the plaintiff since September 2019, he advised he must make the assumption that the plaintiff’s condition had not significantly changed since that time.
147On that basis, he thought the plaintiff would be capable of working in the various jobs identified, for example spare parts interpreter, retail sales assistant, bus driver, mobile plant operator, and driving instructor.
148The only restrictions are that the plaintiff cannot work in a job requiring a range of movement of his shoulders greater than that which was demonstrated on earlier examination. It would appear to Professor Buzzard from the CoWork report that the plaintiff’s shoulder restrictions would not limit his ability to perform the suggested work.
149Given the plaintiff has apparently been off work for some substantial period of time, Professor Buzzard thought it reasonable to accept he should have a graduated return to full work. That being the case, he would suggest that the graduation be over say three months.
Vocational evidence
150Kirsty Grieg, occupational therapist from CoWork, provided a Vocational Assessment and Labour Market Analysis Report in February 2021.
151Having considered the information available to her, including the plaintiff’s vocational profile, medical information and his self-reported activities and physical tolerances, she thought he was capable of transition to suitable employment in the open labour market.
152Therefore, Ms Grieg proposed the following suitable employment options:
· Spare parts interpreter ($63,700 per annum or $1,225 per week)
· Retail sales assistant ($52,312 per annum or $1,006 a week)
· Bus driver ($73,736 per annum or $1,418 per week)
· Mobile plant operator ($108,836 per annum or $2,093 per week); and
· Driving instructor ($65,988 or $1,269 per week).
153Ms Grieg noted the following responses of the plaintiff to the suggested jobs:
· Ride-on mower operator: “I looked at that with council work […] That’s right up my ally yeah”
· Customer service work: “Yep”
· Forklift on/off: He said he had considered this work;
· Grazer/dozer operator: “I’ve been looking at mining sites and mining employment and it looks not too bad”
· Bus driver: “Yeah, depends how long the shift goes, I suppose”
· Truck driver: He said that an occupational rehabilitation provider had already considered truck driving roles but concluded that they were not suitable for him
· Courier: “Depends on what you’re delivering.” He said he had considered work with Australia Post, but was open to food deliveries
· Driving instructor: He said he would like to be a driving instructor and set up his own business and asked for details of the training required.
Overview
154It is not in dispute that the plaintiff suffered injury to both shoulders during the course of his employment with the defendant. The condition has been diagnosed as bilateral shoulder subacromial impingement and rotator cuff tendinopathy bilaterally.[55]
[55]Mr Moaveni
155Having satisfied the narrative requirements in relation to the right shoulder impairment, to obtain leave in relation to loss of earning capacity the plaintiff must also establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
156The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
157The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
158“Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
159It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
160The parties agreed that $60,000 was the appropriate without injury earnings figure.[56] The plaintiff must therefore establish that he is unable to earn in excess of $1150 per week on a permanent basis.
[56]T2-3, T45
Credit
161As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[57]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[57] (2010) 31 VR 1 at paragraph [12]
162Counsel for the plaintiff submitted the plaintiff presented as a reliable witness who at times made concessions against interest and he ought to be accepted as a witness of truth and the Court can give weight to the evidence he gave, particularly in terms of his difficulties he would have with driving jobs et cetera.[58]
[58]T46
163As I indicated during the hearing, I had no issue with the plaintiff’s credit. I thought he was a genuine, credible, well motivated man - a view shared by a number of examiners.[59]
[59]T50
Work capacity
164Counsel for the defendant submitted the plaintiff had not suffered the requisite 40% loss.
165It was submitted there was no suggestion in his affidavits, or to any doctor that he could not cope with the duties or had problems with ladders after his return to work following the second operation. Dr Christiansen thought the plaintiff had a capacity for employment before he went to Tasmania.
166Further, it was submitted there was no suggestion of a problem with the Mazda work.[60] Dr Clapton’s notes confirm the plaintiff coped well with this role. While he thought, reasonably, the plaintiff could not go back to pre-injury duties, Dr Clapton did think he had a capacity for work, making particular reference to jobs suggested in September 2014.[61]
[60]T42
[61]T42
167There has been little done by the plaintiff since 2016 in terms of any concerted attempt to find employment with his capabilities.[62] The jobs he did apply for at Mitre 10 and Bunnings were similar to what he did at McEwans. This was a transferable skill not properly recognised by Mr Dwyer in his vocational report.[63]
[62]T44
[63]T42
168Although there might be limited jobs in Devonport, the detailed CoWork identified specific jobs suitable for the plaintiff whom it described as being very motivated to find work.[64] The plaintiff had indicated to the assessor his desire to set up his own business and he was receptive to a number of the jobs suggested but appeared to have changed his mind about their suitability in his viva voce evidence. [65]
[64]T44
[65]T42
169Professor Buzzard’s view should be preferred as he examined the plaintiff in person, not on Zoom as had the plaintiff’s medico legal examiners. It was submitted their reports lacked a line of reasoning for their opinions, probably due to the absence of physical examination.[66]
[66]T44
170The plaintiff’s general practitioner, physiotherapist and Professor Buzzard all conclude the plaintiff has a capacity for suitable employment and that is better evidence than the examiners who have seen him on Zoom.[67]
[67]T45
171Further, there is no suggestion in any of the medical material that the plaintiff has required any different treatment or any different regime for an increasing right shoulder problem. It has not been substantiated there has been a significant worsening on the right side.[68]
[68]T45
172In response, counsel for the plaintiff referred to Dr Christiansen’s notes which confirmed the plaintiff had ongoing shoulder problems on his return to work after the second operation.[69] This work with the defendant post-surgery was not suitable employment. The plaintiff “was really just using a scanner.”[70]
[69]T46
[70]T49
173Although the plaintiff has a BA, he has never been computer literate. He has demonstrated how poorly he would type and the position he would sit. It is a bit fanciful to say he is going to go into the modern office world.
174It was submitted the plaintiff did not present as a salesman or customer service type person. He is a man who keeps his own company, he has no experience in an office or computer experience, and all of the jobs that have been suggested are manual.[71] He would also have problems sitting to type using a computer.[72]
[71]T50
[72]T50
175The plaintiff has had no experience running his own business and has no administrative skills. He has issues driving for lengthy periods of time – “ It is a bridge too far for all of the jobs that involve driving.”[73]
[73]T51
176While Dr Slesenger imposed very stringent restrictions on any work the plaintiff could undertake.
177Occupational therapist, Mr Dwyer addressed the suggested jobs, analysed everything and concluded none are suitable.[74] It was submitted the plaintiff’s explanations are understandable. While he might like to do the CoWork jobs, physically he does not have the capacity to do them.[75]
[74]T52
[75]T52
178Professor Buzzard’s opinion is out of date as he does not know of the worsening problems with the right shoulder, having examined the plaintiff as long ago as September 2019.[76]
[76]T52
179The submission ion the plaintiff’s behalf is that “this is a case where the plaintiff is forty-nine and given his background with work, particularly twenty years in a factory, and given the extent of his incapacity and activity related restrictions, he has no capacity for suitable employment”.[77]
[77]T53
Findings
180Taking into account all the evidence, I am satisfied the plaintiff does not have the capacity to earn in excess of $1150 per week on a permanent basis as a result of the injury to his dominant right shoulder.
181The consensus of medical opinion is that the plaintiff does not have the capacity to return to unrestricted pre injury duties as a process worker.
182I accept the plaintiff had difficulty on his return to work after the second operation. As Dr Poppenbeek noted when he examined the plaintiff in September 2014, his symptoms were then substantial and shoulder movements were quite restricted.
183The spare parts work at Mazda was short lived and very limited, the plaintiff not having to do the heavy lifting of motor parts usually involved in that role.
184While he applied for the sales work at Mitre 10 and Bunnings- work of a similar nature that he had done many years earlier at McEwans, he did not even get an interview for the jobs. In any event, I accept that he would have significant difficulty with this type of work which would involve lifting and moving stock- demands noted by Mr Dwyer in his vocational report.
185I accept the plaintiff is motivated to return to work and he would do so if he could cope physically. His enthusiasm for work was indicated by his response to the CoWork suggestions but as he explained, that did not extend to capacity. I also accept he would not be living at home with his parents if he had the capacity to work, earn money and buy his own house.
186In my view, any job requiring driving whether it be a car, bus or heavy vehicle would be unsuitable for the plaintiff given his problems driving and steering with an outstretched right arm. This would also be an issue if the plaintiff worked as a driving instructor.
187Although the plaintiff has a tertiary qualification, it was obtained many years ago, significantly in the pre computer era. He has no office or administrative experience. He chose at an early age to do manual work, spending 20 years of his life in the defendant’s factory as a process worker. Significantly, no administrative jobs was considered suitable by CoWork. All the suggested jobs involve a physical component which in my view is beyond the plaintiff.
188I also accept that there has been some worsening in the plaintiff’s right shoulder since the examination by Professor Buzzard in September 2019 as noted by Dr Slesenger and Mr Moaveni late last year when the plaintiff reported his dominant right shoulder was giving him more concern.
189It is difficult to see what job would be available to cater for the significant restrictions Dr Slesenger imposed, having analysed the plaintiff’s functional tolerances, particularly with a 5-kilogram lifting limit.
190While Professor Buzzard thought all the suggested jobs were appropriate he provided no analysis or explanation for this view, simply stating the jobs were suitable based on his examination findings in September 2019.
191Given the plaintiff’s shoulder restrictions, and his daytime fatigue due to pain at night noted by a number of examiners, I am not satisfied he could attend work on a reliable and consistent basis such that he would earn in excess of $1,150 per week.
192Working full time in the retail sales role suggested by CoWork the plaintiff would still suffer the requisite loss. The situation is “borderline” with spare parts and driving instructor, with annual earnings in those roles just above the without injury earnings figure of $60,000 per annum/ $1150 per week the Some of the suggested jobs would require almost full-time hours. The highly paid mobile plant operator role would clearly be unsuitable for the plaintiff with the driving of heavy vehicles involved.
193As his shoulder complaints have persisted for some time despite surgery, I am satisfied his impairment is permanent
194I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
195Counsel for the defendant submitted the onus had not been discharged in this regard as the physiotherapist talked about the prospect of the plaintiff having computer training. The plaintiff is an educated man with a university degree, and there is nothing to suggest that he cannot be retrained in doing some sort of work within his capacity.[78]
[78]T45
196I do not accept this submission as the BA obtained in the early 1990s has been of little assistance to the plaintiff to date and in my view, this situation will not change in the future .
197The plaintiff has made enquiries about park/ranger work where he could use his environmentally focussed tertiary degree; however, such work has a significant physical component and is unsuitable for him.
198Similarly, further study though VET in disability work would also have a significant physical component.
199The plaintiff has no computer experience and training would be difficult for him given the pain he experiences holding his arms extended for longer than ten minutes. Work in that field for extended periods would also obviously be very difficult.
200As medico legal examiner Dr Turnbull stated, the plaintiff was not a particularly skilled man, probably not particularly adept at learning new skills, and he tried to apply for jobs but had not been successful.
201In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more.
202As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, he has satisfied the requirements of s134AB(38)(g).
203Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity, pain and suffering having already been conceded.
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