Tarrant v Premier Waste Management Pty Ltd
[2014] VCC 463
•8 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-13-00761
| MARK FRANCIS TARRANT | Plaintiff |
| v | |
| PREMIER WASTE MANAGEMENT PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28, 31 March and 1 April 2014 | |
DATE OF JUDGMENT: | 8 July 2014 | |
CASE MAY BE CITED AS: | Tarrant v Premier Waste Management Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 463 | |
REASONS FOR JUDGMENT
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Subject: Serious injury application
Catchwords: Application for leave under section 134AB(16)(b) of the Accident Compensation Act for loss of earning capacity damages - defendant conceded compensable injury to the left shoulder and further conceded the pain and suffering component of the application
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon SpinnersPty Ltd&OrsvPodolak (2005) 14 VR 622, Brown v Dunne (1893) 6 R 67 (HL), Giankosv SPC Ardmona Operations Ltd [2011] VSCA 121
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. J. Moore QC with | Shine Lawyers (Dandenong) |
| Ms. A. Wood | ||
For the Defendant | Mr. P. Hayes | Wisewould Mahony |
HER HONOUR:
Introduction
1 The plaintiff is 47 years of age. In October 2012, he separated from his partner, Linda Sassons and her five year old daughter. The plaintiff now lives in a caravan.
2 The plaintiff left school at age 15 without completing Form 4 (Year 10) of his secondary education at Clayton Technical College. Initially, the plaintiff worked as a truck jockey. In 1984, having obtained his endorse licence, at 18 years of age, the plaintiff commenced work for Melbourne Transport Logistics. For the next 24 years, until about 21 August 2007, the plaintiff worked with this employer as a truck jockey. He left this employment because he said he needed a change.
3 The plaintiff was next employed in casual jobs for a rail maintenance company, an office partition company and a company maintaining air conditioning units.
4 The defendant is a waste management company. The plaintiff was employed as a full-time driver from 2 June 2008. He worked 10 to 12 hours per day (from 4 am to either 2 pm or 4 pm), Monday to Friday and every second Saturday or Sunday, as needed. He said he enjoyed his work, which involved driving a large truck fitted with a front lifting device. The latter was used to lift and empty bins containing industrial waste into a hopper at the back of the truck.
5 In an affidavit sworn on 30 May 2012,[1] the plaintiff described the circumstances under which he sustained compensable injury to his left shoulder, on or about 25 October 2010, in the course of his employment in the following terms:
[1]Exhibit P1, Plaintiff's Court Book (PCB) 5-14
“8. .… On that date I was picking up bins from the Kingston Centre located in Heatherton. The Kingston Centre was a regular part of my run.
9. Normally the waste bins located in a position where it is relatively simple for the truck to gain access to the bins.… The bins varied from 1.5 cubic metres to 6 cubic metres. Most of the bins have wheels so they can be manoeuvred to some extent if necessary however this should be very much the exception due to the heavy weight of the bins.
10. Picking up bins from the Kingston Centre had been problematic for quite some time. For the first few months that I attended at that site I was able to drive straight in and insert the forks without any difficulty. For some reason the Kingston Centre staff moved to bins around the corner at the premises to a walki in type area. This was away from the access road itself and the bins were sort of hidden.…
…
12. The bins at the Kingston Centre were emptied daily i.e. about five times per week. There were three metal bins which weighed about 400 to 500 kilos when they were empty. They weigh up to 1 tonne when full. The loads were heavy at that site because it consisted basically of hospital waste. The bins were often overloaded.
13. After the bins were moved it was physically necessary for the driver to manually pull the bins out to a position where the forks could be inserted by the truck. This was quite a difficult manoeuvre and I believe that complaints were made by the drivers to my employer about this system. Personally I had mentioned it to my employer on a couple of occasions prior to my accident. On each occasion the employer representative said to me that something would be done about it. In fact nothing however occurred…
…
15. On the day of the accident I started work at my normal time which was early in the morning. The pickup at the Kingston Centre was one of the last trips before taking the truck load to the tip. There were three bins on site on that day as I recall. Because of their location I had to move all three bins. They were tightly packed together. I had to move them about 6 metres. I grabbed hold of the first bin and tried to move it as normal. As per usual it was quite heavy. As I was pulling the bin I felt severe pain and a popping sensation in my left shoulder (the incident). As I was in a lot of pain I rang the employer to report the incident.”
6 Later that day the plaintiff, sought treatment from a general practitioner at the Parkmore Medical Centre, Dr Tokman. He referred the plaintiff for physiotherapy and x-ray and ultrasound investigations, which were carried out on 28 October 2010. Dr Tokman was not the plaintiff’s usual doctor.
7 It appears that, quite soon after the incident (probably from 1 November 2010), the plaintiff returned to light duties. Issues arose between the plaintiff and the defendant in respect to his work, which the plaintiff alleged culminated in termination of his employment by the defendant. I will say more about the events relating to these matters in due course.
8 I note that, on review in late 2010, Dr Tokman referred the plaintiff to orthopaedic specialist, Mr Byrne.
9 When seen by Mr Byrne on 18 November 2010, the plaintiff said he was experiencing significant pain in his left shoulder with numbness running from his shoulder to his thumb, he could not lie on his left shoulder and he was taking painkillers and prescribed anti-inflammatory medication.
10 The plaintiff deposed that he was informed by Mr Byrne that he had suffered significant damage to the left shoulder which could require surgery. The results of the MRI investigation obtained by Mr Byrne on 28 November 2010 and the later surgical intervention bear this out. As reported, the images revealed: “Full thickness forward partly retracted subscapularis tendon tear, dislocated lower biceps tendon and full thickness tear of the intra-articular biceps tendon. Mild supraspinatus tendinopathy. Mild acromioclavicular joint arthropathy and bursitis.”[2]
[2]PCB 30
11 According to the plaintiff’s affidavit evidence, after submitting his Workcover claim dated 29 November 2010, over the next couple of months, treatment, medication and physiotherapy were continued, without much improvement in his condition.
12 In early March 2011, Mr Byrne administered a corticosteroid injection to the left shoulder, which the plaintiff reported had not significantly changed his condition.
13 During March 2011, Mr Byrne recommended surgery. I understood it was common ground that, on 21 July 2011, the plaintiff underwent manipulation under anaesthetic and an arthroscopic subacromial decompression of the left shoulder. Following surgery, the wound site became infected. Subsequently, on 3 August 2011, Mr Byrne performed a left biceps tenodesis on the ruptured left long head of the biceps and repair of a complete rupture of the left subscapularis tendon tear.
14 Post operatively, the plaintiff said he took powerful painkillers and received intravenous antibiotic therapy. He described ongoing pain and discomfort and an inability to return to work throughout the balance of 2011.
15 Mr Byrne reviewed and last reported on the plaintiff’s condition some seven months post-surgery, on 29 February 2012.[3] In this report, the treating surgeon noted no significant improvement in the pain reported or the range of movement. He advised the plaintiff’s solicitors that the plaintiff was unfit for all work for a further four weeks. Notably, Mr Byrne also concluded that, further surgical intervention or hydrodilatation would not improve the plaintiff’s outcome, which involved persistent pain in the left shoulder, limited movement and an inability to perform even simple activities around the house. Rather, Mr Byrne encouraged the plaintiff to pursue exercises to strengthen the left shoulder. This report also shows that Mr Byrne considered the plaintiff totally and permanently incapacitated for his pre-injury employment.
[3]PCB 42-43
16 I infer from Mr Byrne’s evidence that post surgery the plaintiff probably remained totally incapacitated for all employment until at least late March 2012.
17 As to his current condition and treatment, the plaintiff described ongoing pain (“always there’’[4]) exacerbated by activity, including movement of his arm while walking (“(when) things happen unexpectedly and I instinctively move my arm and shoulder I feel excruciating pain”[5]) as well as loss of movement in his left shoulder. However, the cessation of active treatments such as physiotherapy and hydrotherapy was, the plaintiff said, due to a lack of funds.[6]
[4]PCB 18
[5]PCB 18
[6]PCB 19-20
18 The plaintiff has attended general practitioner, Dr Fah, for treatment of his left shoulder condition since November 2010. The plaintiff explained that, following discussion with his doctor, he avoided pain killing medication because he experienced unpleasant side effects. Instead his treatment regime consisted of home based exercises, Panadol or Nurofen approximately once a week at night when pain was very bad (in his words, when pain was: “Quite high, quite high”[7]), occasional use of a heat pack and the application of Tiger Balm. If I accept, as I have, the evidence that pain in his shoulder[8] disrupts the plaintiff’s sleep approximately two to three times most nights, this and his evidence that he restricts his use of medication until the pain is quite high, suggested some level of stoicism (a willingness to endure comparatively frequent and intrusive levels of pain so as to avoid taking stronger medications).
[7]TN 33 and TN 87-89
[8]PCB 12, 21 and TN 78
19 In March 2014, Dr Fah reported that the plaintiff was unlikely to regain full function or range of motion of the left shoulder. However, subject to work restrictions (“he (was) not to lift greater than 5 kilograms on a repetitive basis, nor will he be able to lift over shoulder height on a repetitive basis”). Dr Fah considered the plaintiff physically capable of part-time work (“I expect that he would only be (able) to manage a maximum of 3 full days of work a week”) as a medical technician or dispatch clerk but not as a hospital orderly. The latter position, the doctor advised was likely to aggravate the plaintiff shoulder condition.[9]
[9]PCB 52
20 The plaintiff deposed that, after payments of compensation ceased in about July 2013, accommodation in a caravan was all he could afford. He currently receives a fortnightly Newstart/Job Search allowance of some $600.[10]
[10]PCB 20 and TN 75
The Application
21 By originating motion filed on 20 February 2013, the plaintiff sought leave under section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to bring proceedings for the recovery of pain and suffering and loss of earning capacity damages.
22 The application was made under paragraph (a) of the definition of serious injury, namely, serious permanent impairment or loss of function of the plaintiff's non-dominant left shoulder.
23 “Permanent” refers to impairment of the plaintiff’s lumbar spine that is: "likely to last for the foreseeable future".[11]
[11]Barwon SpinnersPty Ltd&OrsvPodolak (2005) 14 VR 622 [33]
24 The determination of whether the injury was “serious’’ is assessed by reference to the consequences to the plaintiff of impairment of his left shoulder. These would not meet the test unless the pain and suffering consequence and/or the loss of earning capacity consequence are when judged by comparison with other cases in the range of possible impairments or loss of a body function, “fairly described as being more than significant or marked, and as being at least very considerable”.[12]
[12]Section 134AB(38)(c)
25 The defendant conceded compensable injury to the left shoulder and further conceded the pain and suffering component of the application.[13]
[13]TN 2-3
26 The plaintiff was, nonetheless, required to meet the test in respect to the loss of earning capacity claim and to discharge the further burden imposed by sub-section 134AB(38)(e)(i) and (ii), by establishing a permanent loss of earning capacity, productive of financial loss of 40% or more. He was also required to prove any (and the extent of any) inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment.[14]
[14]Sub-section 134AB(19)(b) and 38(g)
27 The plaintiff would not establish the requisite loss of earning capacity, where after taking into account his physical capacity for suitable employment post-injury and his attempts to participate in rehabilitation and training, he has a capacity for employment which, if exercised, would result in him earning more than 60% of his without injury earnings figure as determined in accordance with sub-section 134AB(38)(f).
28 It was agreed at hearing that, for the purposes of the Act, the sum that most fairly represented the plaintiff’s without injury earnings figure was $70,980 gross per annum. Earnings from personal exertion of $47,992 gross per annum or more would take the plaintiff over the threshold.
29 The defendant argued that the plaintiff had not, as required, established a permanent loss of earning capacity, productive of financial loss of 40% or more and he had taken little or no appropriate steps to find suitable employment. For the purpose of this application, the defendant specifically relied on the positions dominated in the Nabenet labour market analysis document dated 25 February 2014.
30 The plaintiff’s credit was challenged, particularly with regard to the affidavit evidence of other employees, touching in the main upon his compliance with the earliest return to work plan, the availability of modified duties on an ongoing basis and the plaintiff’s capacity to perform these duties from late 2010.
31 The plaintiff has a very modest education. Prior to the incident, he had a long and stable history in the workforce, in the main working as a truck jockey/driver. None of the doctors reported any tendency on his part to exaggerate his impairment and, despite his avoidance of pain killing medication, they have accepted the plaintiff’s description of his experience of pain. Moreover, I infer from the acceptance by the defendant that the pain and suffering consequence of permanent impairment of the left shoulder met the test for serious injury under the Act that, in this case, the impact of pain and impaired function of the left shoulder on the plaintiff’s activities of daily living and on his domestic, recreational and social activities, were important considerations in this global assessment.
32 The plaintiff was, nonetheless, a poor historian, particularly when pressed to recall dates and documents or to describe events in chronological order. Moreover, on occasions, his answers were non-responsive or appeared contradictory. An example of the former is found in the following sequence of questions and answers during cross-examination:[15]
You are capable of vacuuming and sweeping from time to time? --- From time to time it can give me pain.
Might I suggest to you it’s perhaps no more onerous than you attending to any sweeping or mopping when you were working at the Dandenong Hospital? --- Yes, I did.
[15]TN 59
33 I did not, however, conclude that the plaintiff’s evidence in general indicated a lack of candour. To my mind the matters mentioned raised questions about the plaintiff’s ability to accurately recall events, his understanding of the questions asked and, at times, his ability to adequately respond to multifaceted questions. Inevitably, each of these factors necessitated careful consideration of the reliability of some parts of the plaintiff’s evidence. I will explain my response to the various credit issues as and when they arise.
The evidence called and tendered
34 The plaintiff attested to the accuracy of three affidavits sworn on 30 May 2012, 22 October 2012 and 3 March 2014, respectively.[16] Cross-examination was lengthy.
[16]Exhibit P1, PCB 5-24
35 The affidavit sworn by Ms Sassons on 18 February 2014 was also tendered. By agreement, the first two sentences of paragraph 6 and the words from “and I knew” up to and including the words “previously done” from paragraph 7 were deleted prior to tender.[17]
[17]Exhibit P1, PCB 25-28
36 Additional documents were tendered from the Plaintiff’s Court Book. These included the report of MRI dated 29 November 2010, the most recent reports obtained from Mr Byrne dated 28 March 2012, treating general practitioner Dr Wei Lyn Fah dated 8 March 2014, medico-legal orthopaedic surgeon, Mr Russell Miller dated 22 January 2014 and treating occupational physician, Dr David Middleton dated 11 March 2014, Conciliation Outcome Certificate dated 6 May 2011, correspondence dated 8 May 2012 from Gallagher Bassett Services Limited on behalf of WorkSafe Victoria notifying acceptance of the plaintiff’s claim for Impairment Benefits and an application submitted to the Chisholm Institute, dated 17 June 2013.[18]
[18]Exhibit P1, PCB 30, 42-43, 50 to 68-75, 76-106, 110A, 111A-G and 125-127
37 Documents tendered from the Defendant’s Court Book included affidavit sworn by the employer’s General Manager, Chad Holland on 6 February 2013, affidavit sworn by the employer’s Operations Manager, Brett Crellin on 4 February 2013, affidavit sworn by another employee and driver, Brad Warburton on 6 February 2013, recent medico-legal reports of orthopaedic surgeon, Mr Peter Battlay dated 4 February 2013, orthopaedic surgeon, Adjunct Clinical Associate Professor of Surgery, John Hart dated 18 February 2014, occupational physician, Dr Dominic Yong dated 15 May 2013, 26 February 2014, 27 February 2014 and 25 March 2014, labour market analysis report prepared by psychologist, Marion Chua and occupational therapist, Kim Jackman from Nabenet dated 25 February 2014, Certificate of Capacity dated 30 October 2013, correspondence from Mr Holland to the plaintiff dated 9 May 2011, 27 January 2011 and 1 March 2011, Chisholm Institute documentation bundle, Payroll details and clinical notes produced by Dr Yong at hearing.[19]
[19]Exhibit D1, Defendant's Court Book (DCB) 1-10, 17-23, 41-67L, 92-106A and 120-141
38 Ms Sassons, Mr Holland, Mr Crellin and Mr Warburton were not required for cross-examination. Both Dr Yong and Dr Middleton were, however, subjected to extensive cross-examination.
39 In so far as the defendant admitted obtaining surveillance material over which it had not waived privilege, the parties agreed that the Court could infer, as I have, that this material did not advance the defendant’s case.
Impairment-related incapacity for suitable employment
40 Following surgery, doctors on both sides, treating doctors, Mr Byrne, Dr Fah and medico-legal specialists, Mr Miller, Mr Battlay and Professor Hart, have identified permanent impairment of the injured left shoulder. Pain, loss of movement and symptoms of restrictive capsulitis[20] are said to contribute to the impairment of this body function. However, doctors have also identified a retained physical capacity for suitable employment. This would involve employment that accommodated the range of restrictions imposed.
[20]See particularly the reports of Professor Hart, DCB 48, Mr Miller, PCB 73 and Dr Middleton, PCB 80
41 In February 2013, Mr Battlay considered the plaintiff fit for full time suitable employment where he was able to work between chest and shoulder height and manual handling was restricted to 15 kg.[21] Notably, none of the other evidence tendered supported a current manual handling capacity involving the left upper limb/shoulder of up to 15 kg.
[21]DCB 21
42 The plaintiff has recently successfully completed a course of study and sought employment in the health services sector. In my view, Mr Battlay’s conclusion that the plaintiff was not motivated to work pending settlement of his claim, if well-founded in February 2013, was not justified at the date of hearing.
43 I have already mentioned Dr Fah’s opinion concerning the limitations on the plaintiff’s physical capacity to return to full-time employment of any kind.
44 Recent specialist reports submitted by Mr Miller for the plaintiff and by Professor Hart for the defendant, indicate that the plaintiff continued to present with marked limitation of movement affecting the left shoulder.[22]
[22]See Mr Miller's report, PCB 71 and 73 and Professor Hart's report, DCB 45
45 In January 2014, in Mr Miller’s opinion the plaintiff:[23]
[23]PCB 74
· was unfit to return to pre-injury duties “on any significant full time or part time basis”;
· would have difficulty with work involving repetitive left arm actions, use of the left arm in an above shoulder position or lifting of weights greater than 2 kg;
· would not cope with prolonged driving;
· could not perform repetitive lifting of five or 10 kg weight;
· could not perform repetitive use of the left upper arm in the above shoulder position;
· could not wash dishes on a repetitive basis;
· would have difficulty with repetitive and prolonged keyboard work.
46 Professor Hart last reported in February 2014. On this occasion, having been asked by the defendant to specifically comment on whether the plaintiff was capable of performing the duties of a Hospital Orderly, his response was not a clear endorsement of this position as suitable employment. In Professor Hart’s opinion, tasks performed repetitively below shoulder level could cause discomfort. He also ruled out above shoulder activities and lifting with the left upper limb of weights greater than 5 kg.[24]
[24]DCB 47
47 Dr Middleton and Dr Yong assessed the plaintiff and gave evidence on behalf of the plaintiff and the defendant respectively. They too found movement of the left shoulder restricted, particularly affecting the plaintiff’s ability to abduct (raise) his arm sideways.[25]
[25]PCB 80 and DCB 67C respectively and TN 169
48 As I understood the evidence, much of which was summarised in the reports of these occupational physicians,[26] the plaintiff was not previously offered occupational rehabilitation services, although he underwent vocational assessment by Nabenet on 20 August 2012 and on 12 September 2013. Allowing for Dr Middleton’s summary of a report submitted by another occupational physician, Dr Rowe (he apparently examined the plaintiff in November 2011), it appears that, Dr Rowe had been very critical of the ongoing failure to actively assist the plaintiff’s occupational rehabilitation and offer retraining/re-education to perform alternative duties. This was at a time when the plaintiff remained unfit to perform his pre-injury duties.
[26]PCB 76-106 and DCB 50-67L
49 Relying on Dr Rowe’s report, Dr Middleton in turn rejected the Nabenet vocational assessment report dated 20 August 2012, particularly the consultant’s conclusions that the plaintiff did not require additional training and his recommendation of work as a courier, delivery driver, service station attendant or transport and despatch clerk as suitable employment.[27]
[27]PCB 86 and 90-91
50 In December 2013, the plaintiff completed a Certificate III in Health Services Assistance, including a two-week placement at the Dandenong Hospital. The plaintiff deposed that he was not capable of performing all of the duties associated with allied health care particularly on a full-time basis.[28]
[28]PCB 22
51 Under cross-examination, the plaintiff told the Court that, in the 12 months prior to hearing, he had not applied for other jobs, having as he previously deposed, submitted résumés to the Monash Medical Centre, the South Eastern Hospital, the St John of God Hospital and the Dandenong Hospital.[29]
[29]PCB 23-23 and TN 64
52 On 25 February 2014, a psychologist and an occupational therapist from Nabenet provided the labour market analysis report already mentioned.[30] On this occasion, Nabenet was asked to provide a labour market analysis of positions identified by the defendant’s solicitors, namely working as a MR/HR truck driver, Front Lift HR Compactor Driver, Tip Truck Driver, Picker and Packer or as a Patient Services Assistant.
[30]DCB 94-102
53 Nabenet was also asked to identify employment opportunities for an individual with a Certificate III in Health Services, as well as employment opportunities aligned with the medical recommendations of, specifically, Dr Yong. The additional employment options to which the Nabenet report referred involved employment as a Hospital Orderly, a Ward Clerk, an Information Booth Reception/Call Centre Operator, a Customer Service Professional and employment as an Administration/Customer Service Officer.
54 When providing their analysis, the Nabenet assessors had available to them Mr Miller’s most recent report, an earlier report of Prof Hart, dated 19 September 2012, as well as Dr Yong’s report of 15 May 2013. The latter assessed the plaintiff as having a capacity for work and for tasks where he could avoid repeated above shoulder height tasks with his left shoulder and firm pushing and pulling with his left arm and lifting more than 7 kg on a repeated basis. Dr Yong had also recommended a graduated return to work over a six-week period.[31] However, without explaining the basis for this, in later reports submitted by him in February and March 2014, Dr Yong varied the restriction he imposed on repeated lifting up to 10 kg and back again to 7 kg.[32]
[31]DCB 55
[32]DCB 61 and 67K respectively
55 As a result, when in March 2014 the doctor reported that the restrictions imposed were unchanged, this meant that the restriction on lifting was on lifting weights greater than 10 kgs.[33] However, later in the same report, when commenting on the plaintiff’s capacity to undergo retraining for the role of Customer Services Officer, the doctor contradicted this evidence when he advised the plaintiff to avoid lifting no more than 7 kgs on a repeated basis.[34]
[33]DCB 67D
[34]DCB 67K
56 As the reports submitted by Dr Yong in 2014 show, he considered the plaintiff physically capable of employment in most of the occupations discussed in the Nabenet report and, where necessary, capable of training to acquire the skills required to perform suitable employment.
57 In short compass, Dr Middleton’s evidence was to the effect that the positions identified in the recent Nabenet report did not represent suitable employment for this plaintiff because they involved unachievable physical or skills components.[35] Dr Middleton envisaged restrictions on:[36]
[35]PCB 101
[36]PCB 103
· prolonged driving beyond 30 to 45 minutes;
· on repetitive lifting involving the left upper limb;
· on lifting over 4 kg (occasionally) and over 2 kg (intermittently);
· activities above shoulder height, which should be avoided or at least significantly restricted and not be repetitive;
· washing dishes as well as avoiding significantly dirty pots and pans;
· prolonged typing or keyboard work particularly in circumstances where the plaintiff has no significant keyboard or computer skills.
58 I was invited by the defendant to prefer Dr Yong’s evidence due to his: “stronger and more recent qualifications”.[37] Granted, Dr Yong is a member of the Royal Australian College of Physicians and of the Royal Australian College of General Practitioners and he has a Masters qualification in his specialty. However, Dr Middleton’s formal qualifications and long experience in the field of occupational health and rehabilitation and the other credentials held by him as a Certified Professional for the Safety Institute of Australia and member of the Pain Society of Australia, also established relevant expertise.
[37]TN 308
59 As it turned out, allowing for all of the evidence, where these specialists differed, I generally preferred Dr Middleton’s evidence. To my mind, he provided a reliable and pragmatic assessment of the varying tasks confronting this plaintiff in potential employment involving truck driving, process work, hospital work or, with retraining, work in administrative positions. The evidence given by these specialists is discussed in more detail in due course.
60 It is convenient to commence by discussing the events surrounding the plaintiff’s return to work in late 2010, followed by discussion of the Certificate III studies.
The return to work in November 2010
61 As mentioned, the plaintiff’s WorkCover claim was dated 29 November 2010. It was accepted, as was a later claim for permanent impairment of the plaintiff’s left arm, left shoulder and a biceps tear, submitted by his solicitors on or about 26 October 2011.
62 As to any return to work, in his first affidavit the plaintiff noted that, after referral by Dr Tokman for x-ray and ultrasound investigations, he performed light duties (“(over) the next couple of weeks”[38]). The nature of the light duties performed, were not articulated in this or the plaintiff’s later affidavits.
[38]PCB 9
63 The plaintiff’s evidence-in-chief, describing the circumstances leading to the purported termination of his employment, was contained in his first affidavit, sworn on 30 May 2012. He deposed to the following events:
“22. In January 2011 there were discussions about a possible return to work with my employer. My employer did not seem to want me to come back however. Their attitude changed a lot after I was injured and lodged a claim. I believe they were being fairly obstructive. I spoke to an employer representative in the office who told me to take more time off. I was informed that there was not much in the way of light duties available. My employer was pushing me to return to normal work or otherwise threatening me with possible termination. My relationship with the employer deteriorated fairly markedly around this time.
23. At about the same time my psychological state started to deteriorate due to the effects of the chronic pain, my injury and uncertainty concerning my employment. In January 2011 I was referred to a psychologist, Helen Kothrakis, who I ended up seeing on some 14 occasions. At about this stage the employer was taking issue with any minor transgression or work-related matter. I believe that they were looking for a way to get rid of me because of the effects of my injury.
24. In February 2011 I received a notice advising me that my payments were going to cease on the basis that I hadn’t made adequate efforts to return to work. I vigorously challenged this decision as I felt it was unwarranted and the notice was subsequently withdrawn at conciliation. I have continued to receive weekly payments of compensation since that time.
25. About one week after the notice was sent however, before the matter went to conciliation, I was sacked by the employer. I was called into a meeting where the employer already had a pre-prepared letter saying that I would be terminated. I refused to sign the letter and made it clear that I was not leaving the employment voluntarily.
…
36. I have not been offered anything by way of rehabilitation, vocational assistance or a return to work plan since early 2011.”[39]
[39] “ PCB 10-11 and 13
64 The parties largely confined the tender of medical reports to current reports. Of the reports tendered, I note, however, that the plaintiff gave the occupational physicians histories that repeated various matters to which he deposed in his affidavit and that were later echoed in his responses to cross-examination For instance, the plaintiff advised:
· Dr Middleton, in March 2014, that he had not benefitted from physiotherapy and “(d)espite this, (he) returned to work on light duties where his duties were training new drivers on the various routes that the various rubbish pickups took. Even this non-manual job aggravated the left shoulder because of the jolting in the truck and after a few weeks he was informed that there were no further light duties and told go home”;[40]
· Dr Yong, in May 2013, that: “..during this time he went out in the truck with other drivers. He stated he trained the drivers on the route to take. He stated he did not do any physical handling of the bins. He stated that after a 1 month period he was told by his employer that there were no duties available and he would be called if there were further suitable tasks present. He stated he has not returned to work since this time”;[41]
[40]PCB 77
[41]DCB 51, 54 and 58
65 Dr Middleton’s summary of an earlier report made by Professor Hart on 19 September 2012, also suggests that this specialist had been informed by the plaintiff that there was a problem with him continuing in modified duties: “I note that in January 2011 the manager told Mr Tarrant that he could only work full-time on normal duties otherwise there was no work available which resulted in the need for him to consult a psychologists for treatment (sic)”.[42]
[42]PCB 84
66 In her supporting affidavit sworn on 18 February 2014 (as redacted at hearing), Ms Sassons relevantly recalled the plaintiff: [43]
[43]PCB 26
“4. … going back to work almost immediately he returned to work as a passenger in the truck and was helping to train new drivers. He continued to report pain to me in his neck and left shoulder but I recall that all I could see was this big golf ball on his arm. I recall him having lots of difficulty sleeping at the time. He would complain to me that lying on his left side hurt him and he felt a constant grabbing pain in his left shoulder”.
…
6. …came home and spoke to me and we both agreed that he would stay at work because especially at that time we presumed his shoulder would get better and permit him to again be able to drive a truck. When he did return to work he came home that day with what we call the ‘grey letter’ which said they would pay him $10,000.00 and his employment would come to an end immediately. We called it the grey letter because it made no sense to us and we were quite confused by it. I recall it well as it was shattering for Mark and myself as we both needed and wanted Mark to be in long-term stable employment with the company. “
67 A conciliation conference, on 6 May 2011, was resolved on the basis that the employer agreed to reinstate weekly compensation payments from 25 February 2011 under the Act, subject to the provision of valid Certificates of Capacity.[44]
[44]PCB 10 and 110A
68 Each of the three affidavits sworn in February 2013 and tendered by the defendant referenced the plaintiff’s application and his first affidavit sworn on 30 May 2012. Two of these affidavits contained matters that appeared to address in a general way some of the matters raised by the plaintiff in paragraphs 22 to 25 and 36 inclusive of his first affidavit.
69 In effect, in February 2013, the defendant’s witnesses gave a different account of the events following the return to work by, among other things, variously asserting that:
· the plaintiff’s failure to comply with a return to work plan had led to a written warning and threat of termination;
· after returning to work the plaintiff had coped with full-time modified duties, which in this case represented real and ongoing employment, without complaint of pain or discomfort;
· he had expressed dissatisfaction with the modified duties performed and with a return to his driving duties;
· the plaintiff’s employment had not been terminated, rather he had failed to attend work after a meeting on 24 February 2011;
· the defendant was willing to offer the plaintiff the modifies duties and a position as a Customer Service Officer, the latter remunerated at about $50,000 per annum.
70 It was common ground that in his further and final affidavit sworn on 3 March 2014, the plaintiff did not address the defendant’s affidavits, whether to join issue with the deponents or to deny specific allegations of fact. The extracts from Ms Sassons’ affidavit in support, sworn on 18 February 2014 and set out above did, however, describe the modified duties performed by the plaintiff and correspondence (the ‘grey letter’) received from the employer during the period of the return to work.
71 In accordance with the rule in Brown v Dunne,[45] under cross-examination the plaintiff was taken to the defendant’s affidavits. Segments of the evidence on which the defendant generally sought to rely to establish the matters summarised above and to challenge the plaintiff’s credit were put to him. The plaintiff was also questioned about his knowledge of the defendant’s affidavit evidence before swearing his final affidavit.
[45](1893) 6 R 67 (HL)
72 In my view, the plaintiff’s responses during both cross-examination and re-examination, to the effect that he had no understanding of what matters were important for inclusion in the final affidavit drawn by his solicitor provided a plausible explanation for not addressing in his evidence-in-chief any further relevant matters raised in the defendant’s affidavits.[46]
[46]TN 28 and 76
73 Under cross-examination, however, the plaintiff appeared to give contradictory answers when questioned about his knowledge of the defendant’s affidavits before being shown these at hearing. This was relied on to attack the plaintiff’s credit. The relevant passages in cross-examination are extracted as follows:[47]
[47]TN 28-30
“I will digress for a moment; these affidavits, your third affidavit was sworn at page 17 through to page 24 of your court book, and it makes no reference at all to any of the three affidavits I have just invited you to read before Her Honour, does it? – – – Not that I’m aware of.
And those affidavits were sworn approximately one year before you swore your third affidavit, weren’t they? – – – I guess, so if they were, if that’s what the dates say.
So again, if you disagree, and I’m going to come to the third affidavit and the rest of Mr Crellin’s affidavit in a moment, but again you agree with me that would be a pretty important matter to bring to the court’s attention if you disagree with those matters sworn to by Mr Holland, Mr Crellin and Mr Warburton, wouldn’t they? – – – We have been through this before, I’m sorry, I don’t really know what’s important to put in an affidavit.
I beg your pardon? – – – Never been through this sort of thing before, I don’t know what’s important or what should be in an affidavit, I have never even had one before.
You saw those three affidavits before you got into the witness box today, didn’t you? – – – Yes, I did.
Indeed you saw those thee affidavits before you swore your third affidavit on 3 March 2014? – – – Yes, I did (sic).
Yet at no time prior to getting into the witness box before Her Honour today or even swearing your third affidavit have you even referred to these three very important matters about you going back to work for the defendant and performing modified duties, is there? – – – No, there is not.
Not a breath of it? – – – No, there is not.
Might I suggest to you the reason there isn’t a breath of any of this is because simply you weren’t in a position to disagree with the matters which were being advanced by Mr Holland, Mr Crellin and Mr Warburton because if you did disagree you would have been disagreeing with them in your third affidavit, wouldn’t you? – – – Well, never seeing what they have had to say in theirs which I don’t agree with most – – –
Hold on, didn’t you just say to Her Honour earlier on you saw their three affidavits before you swore your third affidavit in this proceeding, wasn’t that your evidence to Her Honour? Their affidavits, not mine.
Yes, you saw their affidavits – – –? – – – I have never seen their affidavits.
You saw their affidavits before you swore your third affidavit? – – – No, I didn’t.
I’m sorry? – – – No, I didn’t
You’re now saying you didn’t? – – – I’ve never – I didn’t say that ever, did I, I have never seen – this is the first time I have seen these.
These three affidavits? – – – Yes.
You’re now saying nobody is ever shown you these three affidavits until now? – – – I’ve never seen them, no.”
74 As previously noted, the plaintiff is not a sophisticated or highly educated individual. After hearing and re-reading in context the sequence of evidence extracted above, the impression I formed was that, when he initially agreed that he had read these before he entered the witness box, the plaintiff could have believed, as his later answer suggested, that counsel was referring to his three affidavits. In these circumstances, I proceeded on the basis that I could not be satisfied that the plaintiff had seen the defendant’s affidavits beforehand and I drew no adverse inference from the responses given. This is not to say that the affidavits had not been served or formed part of the Defendant’s Court Book and, because of the nature of these, at least some of the further allegations made through the defendant’s witnesses warranted a response in this proceeding.
75 I propose to summarise separately the general response made by the defendant’s witnesses to the plaintiff’s allegations in paragraphs 22 to 25 and 36 inclusive of his first affidavit, the further allegations made by the defendant and the plaintiff’s evidence at hearing.
76 The principle affidavit was sworn by General Manager, Chad Holland on 6 February 2013. A selection of documents to which this affidavit referred, were tendered, either by the plaintiff or the defendant. Where appropriate, I have indicated any specific corroboration offered by the deponents of the other two affidavits.
77 Mr Holland relevantly deposed to the following matters:[48]
[48]DCB 1-6
· the plaintiff performed full-time modified duties between 1 November 2010 and 24 February 2011;
· the modified duties involved driver training and run auditing, which required the plaintiff to be seated in the passenger seat, write notes on a run sheet and instruct drivers learning new runs (the modified duties). Based on the evidence of another driver, Mr Warburton, the evidence of Ms Sassons and the plaintiff’s responses under cross-examination, it was common ground that the modified duties performed were as described. I was not satisfied that criticism directed to the plaintiff at hearing for not mentioning or describing the modified duties in his evidence-in-chief was justified or should impact on my assessment of the plaintiff’s credit. As the plaintiff explained, the reference to “light duties” in his first affidavit was a reference to the modified duties performed;
· the modified duties were offered on an ongoing basis in accordance with Certificates of Capacity issued by general practitioner, Dr Fah. Notably, of the documents tendered and acknowledged by the plaintiff, only the letter dated 9 May 2011 indicated that these modified duties were to commence from 13 May 2011 and continue until the plaintiff’s injury was resolved and he returned to full-time duties. Evidently, the letter was sent some days after the dispute about payments was resolved at the conciliation conference on 6 May 2011;[49]
[49]See letter dated 9 May 2011 (DCB 105-6) and the Return to Work Plan added to the Defendant’s Court Book at hearing (DCB 106A)
· without indicating the frequency of and the dates on which this occurred, on each of the several occasions Mr Holland alleged he spoke to the plaintiff to determine if he was experiencing any discomfort performing modified duties, the plaintiff denied any pain or discomfort. Mr Crellin’s evidence on this issue was to a similar effect.[50] Whereas, Mr Warburton deposed that he had been trained by the plaintiff for a week, during which time his passenger had not complained of pain or discomfort in his arm. The evidence of Mr Warburton does not in any way challenge my assessment of the plaintiff as someone not given to complaint.[51] The evidence of Mr Holland and Mr Crellin recalling denials of pain, is a different matter;
[50]DCB 8 and TN 25
[51]DCB 9-10
· on 17 January 2011, 19 January 2011 and 25 January 2011 the plaintiff failed to attend work without notification;
· on 27 January 2011, the plaintiff was issued a written warning for non-compliance with a return to work plan. A copy of the letter signed by Mr Holland, but not signed or acknowledged by the plaintiff, was tendered separately by the defendant as part of the Court Book.[52] In short, among other things, the letter reminded the plaintiff of his obligation to comply with an agreed return to work program (evidence of the content of the plan was not tendered). The letter set out the circumstances under which the employer alleged the plaintiff failed to attend work on 17, 19 and 25 January 2011 and the results of communications between Mr Crellin and the plaintiff on each of these occasions and warned the plaintiff that further unacceptable behaviour could result in termination of his employment;
[52]DCB 120-121
· on 24 February 2011, Mr Holland and Mr Crellin met with the plaintiff. At this meeting, the plaintiff was said to have expressed dissatisfaction with the modified duties, which Mr Holland said were offered on an ongoing basis in accordance with Dr Fah’s Certificates of Capacity and dissatisfaction with his job with the defendant. Mr Crellin’s evidence appeared to corroborate these matters;
· the plaintiff did not return to work after 24 February 2011. This date was confirmed by Mr Crellin and accepted by the plaintiff under cross-examination; [53]
[53]DCB 8
· on 1 March 2011, Mr Holland wrote to the plaintiff. A copy of a letter signed by Mr Holland but not signed or acknowledged by the plaintiff was added to the Defendant’s Court Book at hearing. Among other things, this letter purported to summarise details of the meeting held on 24 February 2011. I will deal with the content of the letter separately below, as well as Mr Crellin’s evidence about the matters he deposed were discussed during the meeting;[54]
[54]DCB 122 and 8
· when no response to the letter was received, he telephoned the plaintiff on 3 March 2011 “to discuss his future employment”. Mr Holland alleged that during this discussion, he “reiterated the modified duties were available on an ongoing basis in accordance with (the plaintiff’s) doctor’s recommended restrictions” and was advised that the plaintiff would return his call and inform him whether he wished to continue his employment with the defendant;
· the plaintiff failed to answer further telephone calls from him and, on 10 March 2011, Mr Holland discovered an envelope from the plaintiff on his office desk containing the plaintiff’s work phone, key and a Certificate of Capacity from Dr Fah. Under cross-examination, the plaintiff agreed that he attended the defendant’s premises and returned (left) the items mentioned on that date, although in re-examination, the plaintiff said that Mr Holland had called him and requested he return the keys for use by another driver and, on his solicitor’s advice, he returned both the keys and the telephone;
· when he swore his affidavit in 2013, Mr Holland believed the plaintiff’s employment had not been terminated and he was still employed by the defendant;
· the defendant remained willing to offer the plaintiff the same modified duties as a driving trainer or in a position as a Customer Service Officer, the latter at the rate of about $50,000 per annum. The job description for a Customer Service Officer was not tendered. The tasks were, however, summarised in the Nabenet labour market analysis report dated 25 February 2014 and Dr Yong’s report in May 2013;[55]
· without explaining the basis for this understanding, when he swore his affidavit, Mr Holland said he understood the plaintiff was unwilling to return to employment with the defendant and on 20 August 2012 had been assessed by Nabenet for rehabilitation and/or retraining. He also appeared to place some reliance on an alleged failure by the plaintiff to request retraining or assistance in seeking alternative employment. I have already noted earlier criticism of the defendant’s failure to provide occupational rehabilitation and retraining and of the recommendations made by Nabenet in August 2012.
[55]DCB 93-94 and 55
78 The letter dated 1 March 2011 and addressed to the plaintiff is self-serving. Among other things the letter:[56]
[56]DCB 122
· Purported to contain written confirmation of the “recent conversation”, with details of the defendant’s “proposal”;
· acknowledged that the plaintiff’s injury was unresolved and continued to be covered by WorkCover;
· purported to accept the plaintiff’s “preference not to continue with” his previous role as a frontlift driver, evidently due to the plaintiff no longer wanting to start early or work long hours and his desire to: “move on and do something else for a while”;
· proposed “mutual” termination of the plaintiff’s services with payment of “an amount of $11,035.47 gross, including 5 days sick leave accrual, 3 days leave accrual and, 10 weeks pay in lieu of notice/service”;
· fixed the date of termination at 1 March 2011, noting further that the plaintiff would continue as a casual in the “employment books until at least the end of May to ensure (he was) covered from a workcover perspective”. At the end of this period, if the injury was resolved the plaintiff was advised he would be removed from the books;
· generally commended the plaintiff for his service.
79 Notably, the letter made no mention of the availability of the modified duties, rather the letter advised the plaintiff that the defendant did not have any roles available other than as a frontlift driver.
80 Under cross-examination, the plaintiff denied performing modified duties over all of the period specified by Mr Holland and he denied failing to attend work on 17, 19 and 25 January 2011 unless he: “was told to take them off” or, as he appeared to speculate in re-examination, unless he were sick.[57] He could not recall receiving the written warning dated 27 January 2011, although in re-examination the plaintiff went further when he said he had not received, seen or been asked to sign this letter. Moreover, the plaintiff denied the assertion in the letter that he had on multiple occasions failed to comply with verbal instructions.[58]
[57]TN 23
[58]TN 24 and 80
81 In his affidavit, Mr Crellin made a number of allegations about the plaintiff’s performance prior to the incident (taking regular sick leave, regularly attending work late and so forth). Under cross-examination, the plaintiff denied the substance of these allegations. Notably, Mr Crellin’s affidavit failed to corroborate the specific allegations made in the letter dated 27 January 2011 that, on 17, 19 and 25 January 2011, the plaintiff failed to attend work and when telephoned by Mr Crellin, advised either that he had slept in or was sick.
82 Additional to the matters already noted about the meeting on 24 February 2011, in his affidavit Mr Crellin: [59]
[59]DCB 7-8
· described the purpose of the meeting as being: “to discuss Mark’s injury, the modified duties and the nature of his employment with the Respondent”;
· without explaining what this entailed, deposed that the plaintiff advised he was unhappy in his position with the defendant and unhappy with the modified duties undertaken;
· deposed that Mr Holland had advised the plaintiff that the defendant was willing to pay him three months’ pay in advance while he rested his injured arm and while he worked out whether he wanted to continue his employment with the defendant;
· deposed that the plaintiff appeared “very pleased with the offer to have 3 months off to decide what he wanted to do”.
83 Under cross-examination, among other things the plaintiff recalled meeting with Mr Holland and Mr Crellin for “a chat” but denied expressing dissatisfaction with his modified duties.[60] He was not asked whether he also expressed dissatisfaction with his pre-injury job as a driver. In any event he denied leaving (stopping work for the defendant) because he did not like the job.[61]
[60]TN 25
[61]TN 30
84 It was suggested to the plaintiff that the letter of 1 March 2011 had been sent to him by Mr Holland. He was also asked whether he recalled receiving the letter. The plaintiff said he did not recall receiving it.[62] Later, however, in re-examination the plaintiff indicated he had received this letter, which is less surprising when one has regard to his first affidavit in which the plaintiff deposed that he had been given a letter stating that he would be terminated, which he refused to sign.[63]
[62]TN 25 and 30
[63]TN 82
85 In re-examination, the plaintiff gave evidence to the following effect, that during the meeting he was advised there were no modified duties available and he would be contacted if he was needed; that he waited weeks to be contacted (he couldn’t remember how long) without being contacted before receiving the letter dated 1 March 2011 (the so-called ‘grey letter’ which Ms Sasson deposed had caused confusion and was shattering because they needed and wanted the plaintiff to continue in long-term and stable employment).[64]
[64]TN 81
86 On any reading of the letter, it purported to terminate the plaintiff’s employment from 1 March 2011 with 10 weeks pay in lieu of notice. As mentioned, the plaintiff said receipt of the letter prompted him to contact his solicitor.
87 Whilst accepting that he received a telephone call from Mr Holland on 3 March 2011, under cross-examination, the plaintiff could not recall being advised by Mr Holland that modified duties were available on an ongoing basis in accordance with his doctor’s restrictions. Moreover, he denied messages were left on his telephone over the ensuing week for him to call Mr Holland.[65] In re-examination, he specifically denied receiving a telephone call within a couple of days of notification of his termination to discuss performing modified duties. In my view, the content of the letter dated 1 March 2011 alone indicates the implausibility of Mr Holland’s evidence in this regard.
[65]TN 26
88 In re-examination, the plaintiff denied receiving any correspondence from Mr Holland offering modified duties, any return to work plan and a job description to that effect.[66]
[66]TN 86
89 Events occurring following the conciliation conference on 6 May 2011, at which the plaintiff said he was unrepresented, nonetheless helped explain when and under what circumstances further correspondence was sent offering the modified duties under a further formal return to work plan. It does not, however, explain why Mr Holland failed to address the dispute, the conciliated outcome or to discuss this later offer in his affidavit.
90 On the third day of hearing, with leave, the plaintiff gave further evidence in which, among other things, he was shown the letter dated 9 May 2011[67] from Mr Holland, containing the offer of ongoing modified duties for 40 hours per week as a Driver Trainer and Run Auditor under a formal return to work plan from 13 May 2011. He was also shown a single page of a Return to Work Plan apparently signed by the employer on 10 May 2011 and by the plaintiff on 19 May 2011. The plaintiff told the Court that he did not recall receiving the letter and, prior to being shown this document the day beforehand, he had no recollection of seeing the Return to Work Plan signed by him.[68]
[67]DCB 105-106
[68]TN 198-200
91 Under further cross-examination, the plaintiff appeared not to understand the difference between having previously, unequivocally denied that he received particular documents (albeit in the context of answering questions about Mr Holland’s alleged contact with him between 3 March and 10 March 2011) and, after being shown the documents, his response that he did not recall receiving them.[69]
[69]TN 203-204
92 In the absence of employment records and copies of the Certificates of Capacity issued from time to time, I was unable to determine, firstly, the precise period over which modified duties were performed before 24 February 2011 and, secondly, the working days, if any, missed by the plaintiff during any period he was certified fit to perform the modified duties under a return to work plan.
93 I note, however, the plaintiff’s allegation in paragraph 24 of his first affidavit that, in February 2011, he was notified that payments would cease because he had not made adequate efforts to return to work and the plaintiff’s statement in re-examination that, during this period, the condition of his shoulder meant he was not fit to seek employment on the open market.[70] These circumstances and Ms Sassons’ evidence suggest that, at the relevant time, the plaintiff was unlikely to act to end his permanent employment with the defendant or refuse to perform the modified duties if certified fit to do so.
[70]TN 86
94 Based on all of the evidence, I infer that prior to 24 February 2011 there probably had been a dispute concerning the plaintiff’s return to work and his ongoing entitlement to weekly payments of compensation, although the circumstances surrounding any dispute and the ongoing availability of the modified duties remain unclear. Somewhat surprisingly, the defendant’s affidavit material makes no mention of the dispute over payments, which as we know, was resolved at the conciliation conference on 6 May 2011 on the basis that the plaintiff was entitled to weekly payments of compensation from 25 February 2011(the day after the parties agree he last worked), subject to provision of Certificates of Capacity.
95 Leaving to one side the indication by the plaintiff in his first affidavit that discussions about a possible return to work with his employer took place in January 2011, the various matters raised by Mr Crellin in his affidavit lend weight to the plaintiff’s claim in his first affidavit that he had been advised by an employer representative to take more time off. In short, Mr Crellin’s evidence reinforced my reservations about the accuracy of Mr Holland’s evidence that ongoing modified duties were also available and offered at the meeting on 24 February 2011 and about the sequence of events alleged by him, particularly after the meeting, when the dispute about the plaintiff’s entitlement to weekly compensation was probably extant.
96 As to whether the plaintiff complained of pain and discomfort, under cross-examination, the plaintiff said he had complained about discomfort in performing modified duties and had: “words with them”[71] about pain and the difficulty he experienced undertaking modified duties. In re-examination, the plaintiff challenged the assertion that he had denied any pain or discomfort and explained that, movement and jolting of the truck had caused pain and entering and alighting had been difficult, such that by the end of the day he experienced moderate to high levels of pain.
[71]TN 23
97 I was not, however, satisfied that the plaintiff specifically recalled these conversations with Mr Holland, as he said: “I’d basically be saying that yes, it’s hurting my arm. It’s – as I say, I’m not one to complain too much, but I would be saying something about that” and “We would’ve spoken, I’m sure. I don’t know how many times or – or when” and “I was – I would have been telling him I was suffering discomfort”.[72]
[72]TN 78 and 79
98 On balance, I could not be satisfied that the plaintiff specifically complained of pain or discomfort to the defendant during the period he performed the modified duties. This does not, however, mean that activities involving the use of the plaintiff’s left upper limb and shoulder both at home and in the performance of the modified duties had not led to pain and discomfort during this period. For instance, I was satisfied in this case, that the statement by the plaintiff that he was not given to complaining, provided a plausible explanation for any failure to complain, particularly to co-worker, Mr Warburton.[73] This factor and the surrounding circumstances at the time helped persuade me that, as claimed by him, the plaintiff probably had experienced ongoing pain and discomfort. These circumstances included:
[73]Notably, the plaintiff impressed Dr Middleton as someone who was not a complainer, who had tried to get off analgesics to avoid reliance on pain killing medication and, who had really wanted to get back to work, TN 145-146 and 170-171
· the nature of the injury identified on MRI scan in November 2010, after the return to work;
· the plaintiff’s reports of pain in his left shoulder and neck to Ms Sassons, after his return to work and the observations she made about the condition of his arm and its impact on his sleep. Her evidence essentially corroborated the plaintiff’s evidence that, despite medication and physiotherapy, in the months following the incident, he had not experienced much improvement in his condition and he had experienced significant left shoulder pain, accompanied by numbness and an inability to lie on the shoulder due to discomfort;
· the evidence that the plaintiff required a corticosteroid injection administered by Mr Byrne on 3 March 2011, who in the same month recommended the surgery the plaintiff subsequently underwent in July and August 2011.
99 In this application it was also necessary to determine whether the modified duties, the defendant alleged remained available to the plaintiff, constituted a real job. During re-examination, the plaintiff indicated to the contrary – “..I think I was just put there to fill in gaps for a while”.[74] In view of my reservations about various aspects of Mr Holland’s evidence and the plaintiff’s response when questioned about the offer of modified duties, particularly after 9 May 2011, it was necessary to evaluate all of the surrounding circumstances to determine whether the modified duties the defendant said were available as at the date of hearing constituted suitable employment. I will explain why I concluded that the modified duties probably did not constitute suitable employment shortly.
[74]TN 20-22 and 78
The Certificate III in Health Services Assistance
100 As mentioned, the plaintiff completed this course in the latter part of 2013. During November 2013, he also successfully completed a two week placement at the Dandenong Hospital.
101 The plaintiff was clearly keen to retrain for an alternative career and return to the workforce (“I loved the course and the placement. I would say I blitzed it. It made me feel good again and even though the work was unpaid, it didn’t matter to me”[75]). The plaintiff, nonetheless, expressed concern about his physical capacity to sustain any employment, much less full time employment in this industry. This concern was echoed by Dr Middleton, who gave evidence that retraining for work in the health services industry had been an inappropriate choice in the circumstances.
[75]PCB 22
102 Various documents relating to the course undertaken at the Chisholm Institute and the placement at the Dandenong Hospital were tendered.[76]
[76]PCB 125-127 and DCB 123-136
103 These documents confirmed that the plaintiff satisfactorily achieved competency levels in a range of subjects, including activity-based tasks such as preparing and maintaining beds, transporting patients, assisting client movements and handling waste in a health care environment. He achieved one high distinction in the unit “follow basic food safety practices”.
104 In summary, the plaintiff’s gave evidence to the effect that, the course was mainly devoted to learning and “bookwork” rather than physical activities. When, however, he came to do the placement the plaintiff said the tasks performed were mainly cleaning, such as sweeping and mopping floors (which caused him pain) and removal of rubbish. I took the latter to mean the removal of dirty linen bags, which, without being able to indicate their weight when full, the plaintiff said probably weighed as much as 5 kg when empty. Whereas machines generally assisted with other activities such as moving patients.
105 Among other things, the documents tendered and the evidence at hearing indicated the following additional matters.
106 In June 2013, the plaintiff’s application appropriately notified the Chisholm Institute that he was on WorkCover and that he suffered from a physical disability for which he could require assistance. However, subsequently when entering into a Practical Placement Agreement for placement, between 11 and 22 November 2013 (signed by the plaintiff on 22 October 2013), the plaintiff failed to disclose his known left shoulder condition or treatment for same by marking the box designated: ‘No’. This was his response to specific questions directed to “Medical Factors” and/or any medication or treatment that may be relevant to the placement.
107 As it turned out, the plaintiff did note the date on which he had last been immunised for tetanus yet failed, where required, to also indicate whether he suffered from Asthma.
108 The plaintiff acknowledged at hearing that his shoulder condition should have been brought to the Dandenong Hospital’s attention, yet maintained that he had done the right thing (“I suppose when I sat there through the insurance company from the defendant’s side I thought I was doing the right thing” and in response to the suggestion that he had omitted this important detail, added “No, I didn’t look at it that way, I’m sorry”[77]).
[77]TN 44
109 During re-examination, the plaintiff added that he had expected the hospital to be aware of his injury because the placement had been arranged under the auspices of the rehabilitation service provider, Nabenet.[78] This expectation was probably reasonable in the circumstances described, but could not fully account for the negative response given to a question about the plaintiff’s medical status for the purpose of the placement.
[78]TN 45 and 97
110 The plaintiff gave evidence to the effect that, whilst the placement record showed him working 8 hours per day, 5 days per week over a 2 week period, he estimated that the shifts worked lasted only 5 to 6 hours each day with a half hour meal break,[79] because, in his words: “half the day would be spent catching up with (his teacher/assessor from Chisholm)”.[80]
[79]TN 95
[80]TN 45
111 At hearing, the plaintiff said he worked during the placement with pain and discomfort and, at the end of the working day, his shoulder was sore.[81] These assertions were challenged, primarily on the basis of the plaintiff’s responses to a confidential questionnaire returned by him (presumably at some stage after the course concluded). The explanatory notes contained in the questionnaire confirm that this document was designed to assist the Chisholm Institute in improving its course and in future planning. Clearly the questions were not intended to elicit information about the extent to which the plaintiff had coped physically with any or all of the tasks he undertook as part of his training under the placement.
[81]TN 45-47 and 93-95
112 In my view other factors, such as the medical evidence of permanent impairment of left shoulder function, the restrictions imposed on employment activities to guard against aggravation of the condition and the likely physical nature of many of the tasks undertaken during the placement, all supported a finding that the plaintiff’s shoulder probably had caused problems, particularly where these tasks involved employing his left shoulder in repetitive activities and/or in the lifting of heavy weights.
113 As it turned out, the plaintiff also reported mainly high levels of satisfaction with the course in response to the questionnaire and, when asked to describe the “best aspects” of the course, among other things, the plaintiff stated that he “loved” the placement. Indeed, his only recorded criticism of the course was aimed at the noise levels during some classes.[82]
[82]DCB 135-136
114 I did not, however, infer from the evidence summarised above and any failure to register any complaint that, at the time, the plaintiff’s capacity to perform physical duties such as mopping, sweeping and rubbish removal, where he engaged his left shoulder in repetitive and/or lifting activities, was unrestricted and pain free. Not even the defendant’s recent medical evidence supported a contrary finding.
115 If Dr Middleton was correct, rehabilitation attempts should have been directed elsewhere and, the plaintiff’s enthusiasm in undertaking the course and the placement, as well as his later efforts to gain employment in the health services sector, was probably misguided.
116 I concluded that the plaintiff’s desire to complete a course he was well motivated to complete in order to return to the work force, was a plausible and likely explanation for the failure to mention the shoulder condition in the placement agreement entered into within months of commencing the course.
117 Ultimately, however, the question of whether the plaintiff was currently fit to work in the health services industry required careful consideration of the extent to which the performance of the tasks involved in existing positions in this sector, could safely accommodate a permanently impaired left shoulder and, meet the range of restrictions imposed.
Suitable employment
118 Section 5(1) of the Act defines “suitable employment” such that the plaintiff's capacity to earn from suitable employment must be taken into account, regardless of whether the suitable employment is available and is of a type or nature that is generally available in the employment market.
119 The legislation requires the Court to consider the possibility of employment following the injury, with due regard to the various factors on which the amended definition of “suitable employment” in section 5 of the Act elaborates. These factors include the nature of the plaintiff’s incapacity and the details provided in the medical information, the nature of his pre-injury employment, his age, education, skills and work experience, his place of residence, any documents relating to the return to work process and any occupational rehabilitation services provided.
120 The ultimate concern is, whether, having regard to impairment of the plaintiff's left shoulder, he has a physical capacity for suitable employment which, if exercised, would result in earnings from personal exertion exceeding the statutory threshold. He carried the onus of proving on the balance of probabilities that no suitable employment existed in which he could earn 40% or more of the agreed pre-injury earnings figure.
121 The decision of the Court of Appeal in Giankosv SPC Ardmona Operations Ltd[83] is, however, authority for the proposition that there may be circumstances in which the evidentiary onus shifts to the employer to adduce evidence of jobs in existence, which constitute suitable employment for a particular worker. In that case, the worker was physically incapable of unrestricted work in his pre-injury occupation as a forklift driver. Having been satisfied by the plaintiff that no suitable employment existed in the regional area in which the plaintiff resided, the Court of Appeal found that the employer bore an evidentiary onus to adduce evidence that there were other jobs in the area for which the 58 year old worker was suited.[84]
[83][2011] VSCA 121
[84]Ibid, paragraph 113-115
122 In Giankos, the Court of Appeal also emphasised the need for expert opinion to relate to matters wholly and substantially within the expert’s field of expertise. In short, where they have commented on this, treating and medico-legal experts must satisfy a court that they are qualified to give evidence about jobs or particular tasks which can or cannot be performed by the worker. This is not to deny that, if asked, these doctors may appropriately comment on the physical capacity of the injured worker to undertake specific tasks.[85]
[85]Ibid, paragraphs 94-98 inclusive
123 In his affidavit evidence the plaintiff relevantly deposed as follows:[86]
[86]PCB 13 and 22-23
In May 2012 –
“35. I do not believe that I can drive a truck at the present time. It would be very difficult to steer and use the gearshift which is located on the left side of the cabin. The trucks that I drove also had a controller that required dextrous use of the left arm. I am able to drive a car however it is more difficult.…
And in March 2014 –
“28. Whilst I survived my two week placement, I am still concerned about my physical capacity to do the job reliably, all day, every day. The work is mostly machine operated and the hospital had a “no lift” policy, however, there were associated jobs that were physically demanding such as cleaning and moping (sic). A lot of these tasks are repetitive and require relatively forceful arm and shoulder movement. In reality I don’t think I could cope with the job even on a part-time basis.
29. I have a C.V which was prepared for me by Nabenet. I have hand-delivered it to four hospitals in an attempt to find work. These hospitals were: Monash Medical Centre, South Eastern Hospital, St John of God in Dandenong and Dandenong Hospital. I was hopeful that the Dandenong hospital would hire me after I completed my placement however I suspect they are not willing to accommodate my restrictions. Because of my injuries I would not be able to perform all of the required tasks associated with Allied health care and I think it unlikely that I would be able to work full-time. I would need an employer to be prepared to accommodate my injuries and restrictions and in hindsight, having now completed the placement, I am not sure if any employer will be willing to accommodate these restrictions.
30. Approximately 6 months ago I was offered some work at a liquor store in Chelsea through a friend. However, there was no way I was able to do any of the stock related tasks because they all required significant lifting and arm action.
31. I have never worked in office. I have very limited computer skills. I do not own a computer and I do not use Facebook or internet banking. I do have an email address but I don’t use it. I don’t even have a mobile phone that you can assess (sic) the internet from! I would love to return to work but I’m not sure what I could realistically do.”
124 The plaintiff was cross-examined at length about his skills and physical capacity to perform the modified duties and to undertake employment in the positions nominated in the Nabenet report in February 2014. Relevantly, all of the positions advertised were for full-time or casual employment. As mentioned, the doctors were united in saying that restrictions applied to the use of the plaintiff’s left shoulder/left upper limb in employment activities for the foreseeable future.
125 Accordingly, evidence of a retained physical capacity to perform a collection of tasks required in specific jobs or occupations would not suffice as proof of capacity to perform alternative employment. To constitute suitable employment, the plaintiff must be capable of performing, whether part-time or full-time, the inherent requirements of jobs in existence, where these accommodate the restrictions imposed on his physical activities.
126 Both Dr Middleton and Dr Yong were cross-examined extensively about matters raised in their reports and the various tasks involved in performing the modified duties or the jobs nominated in the Nabenet report. They were asked to comment on whether any of the jobs nominated constituted suitable employment under the Act.
127 It is convenient to evaluate the evidence relating to the plaintiff skills and capacity to perform the tasks required in the positions nominated by reference to the different categories of employment, namely truck driving, process work such as picking and packing, working as a health services assistant and administrative work.
128 The plaintiff was not cross-examined about his capacity to drive trucks, other than his capacity to undertake the modified duties. The latter involved working as a passenger, training drivers and auditing runs.
Modified duties
129 As I understood the defendant’s case at hearing, the modified duties remained available to the plaintiff. [87] The plaintiff’s concern that the modified duties did not constitute an existing position, was supported by Dr Middleton who, in response to the suggestion that the plaintiff could perform these duties now, replied: “But it’s not a real job”.[88]
[87]TN 298
[88]TN 153
130 As to the plaintiff’s capacity to perform the modified duties, I have already summarised the plaintiff’s evidence in which he said that, working as a passenger in the defendant’s trucks had been not been pain free or without discomfort. He identified jolting of the truck as one factor and problems using his left arm/shoulder to enter and exit the truck as another. These matters were taken into account by Dr Middleton, when he too questioned the plaintiff’s capacity to perform the modified duties.
131 In February 2014, Dr Yong was asked whether, currently, the plaintiff was capable of performing the modified duties described in Mr Holland’s affidavit, namely, as a passenger in a garbage truck, assisting drivers making runs, identifying bins in poor condition and re-sequencing runs. In Dr Yong’s opinion, the tasks so described complied with the restrictions imposed and were, he said: “reasonable”.[89] Dr Yong did not address the question of whether this collection of duties constituted an existing position.
[89]DCB 63
132 Allowing for all of the evidence, even if, as asserted by the defendant, the plaintiff had coped with the modified duties performed under a return to work plan in November 2010, I was not satisfied that the assortment of duties offered in conjunction with the various return to work programs in November 2010 and May 2011 constituted an existing position.
Truck Driving
133 As to the truck driving positions nominated in the Nabenet report, I did not understand the defendant to press an argument that the plaintiff remained fit to drive a truck in his former position.
134 Evidently, the plaintiff holds appropriate licences and he is qualified by his experience to work as a MR/HR Truck Driver, a Front Lift HR Compactor Driver and as a Tip Truck Driver.
135 I note that each of the positions advertised involved handling significant weights. For instance, the MR/HR Driver position required some heavy manual handling (“up to 20kgs when required”[90]), the Front Lift Driver position, which was probably the same as the plaintiff’s pre-injury position, involved handling heavy weights and the Tip Truck driver position involved reaching above head height, assisting with loading products onto trucks and heavy physical labour if needed.[91]
[90]DCB 95
[91]DCB 95-96
136 Dr Yong was noncommittal in respect to the MR/HR driver position (“This would require individual assessment to determine the occasional manual handling could comply with the weight restrictions (sic)”[92]). He too considered the position as a Front Lift driver unsuitable but not the Tip Truck Driver position (“this would involve driving the vehicle and operating the tipping mechanism. This would be expected to comply with the restrictions and is reasonable”).[93]
[92]DCB 61
[93]DCB 65
137 One issue, which emerged during cross-examination of the doctors, was whether driving trucks on a regular basis was now beyond the plaintiff’s physical capacity due to factors such as the size of the truck and the operation of the steering mechanism and any limitation on his driving tolerances in any vehicle. The plaintiff’s evidence and the evidence of Mr Miller and Dr Middleton was to the effect that his driving tolerances were restricted by his shoulder condition.
138 Under cross-examination, Dr Middleton expressed the view that the plaintiff would not last long in this role because truck drivers require two hands to operate a steering wheel and, even with power steering in mostly heavy rigid vehicles, this was a demanding activity and involved the use of both shoulders.[94] Dr Middleton was also concerned with the plaintiff’s safety should he attempt to haul himself into a tip truck using only his right arm or when required to perform other tasks such as the shovelling duties likely associated with work as a tip truck driver.[95]
[94]TN 154-156
[95]PCB 100 and TN 156
139 Dr Yong appeared to acknowledge that with jolting of the truck and extension of his arms to operate the steering wheel, driving a waste truck could aggravate the plaintiff’s shoulder condition. He, nonetheless, suggested that consistent with safe work practices, this problem could be overcome if, as occurred in some workplaces, the seat was moved forward and the plaintiff was taught to steer by gripping the wheel from underneath the steering wheel, whilst holding his elbows close to his body.[96]
[96]TN 265
140 Dr Yong also considered that the plaintiff could safely enter and exit a truck using his left arm, so long as he kept his left arm close to his chest as he grabbed the rail.[97] However, having been appraised of the current diagnosis involving capsulitis, Dr Yong appeared to accept that this condition would also have bearing on whether the plaintiff was capable of safely employing his left upper limb to enter and exit a truck.[98]
[97]TN 263-264
[98]TN 265-266
141 In my view, Dr Middleton’s evidence that each truck driving position was unsuitable, appropriately took into account the restrictions on the use of the plaintiff’s left shoulder and arm imposed by all doctors and the varying tasks that were likely to confront the plaintiff working as a truck driver.[99]
[99]PCB 100
142 Accordingly, I was satisfied that the truck driving positions nominated did not meet the restrictions imposed on this plaintiff and that truck driving was probably unsuitable employment for this plaintiff.
Picker and Packer
143 As to employment as a picker and packer, this position required employees to pick and pack bottles and packets of pills and vitamins for the pharmaceutical industry at a fast pace with items said to weigh approximately 2 to 3 kilograms and occasionally up to 5 kilograms. The position also entailed some above shoulder height reaching, the frequency of which probably depended on the employer’s needs and the orders placed.[100]
[100]DCB 96
144 Dr Middleton considered this work unsuitable, as it required repetitive use of both arms and reaching above shoulder height and in this regard exceeded the safe working restrictions imposed.[101] Dr Middleton made his point more graphically during re-examination when he said: “… it’s repetitive and fast moving you can’t just use one hand. I mean, they often say you can do it with your right hand. They don’t run a conveyor belt for the one-handed person, they run them for two-handed persons”.[102]
[101]PCB 100
[102]TN 187-188
145 In his report, Dr Yong described this work as light manual handling process work. Dr Yong’s evidence was to the effect that he did not have sufficient information to understand the totality of the job described. Moreover, at hearing he agreed that repetitive activity using the left arm, whether at or below shoulder height could aggravate the plaintiff’s condition.[103] In these circumstances, I was not satisfied that Dr Yong had endorsed process work or a position as picker and packer as suitable employment.
[103]DCB 61 and 67J and TN 242--252
146 Accordingly, I was satisfied that process work, in particular as a picker and packer probably did not constitute suitable employment for this plaintiff.
147 The plaintiff’s Certificate III qualified him to work in at least two of the health services positions nominated in the Nabenet report, namely as a Patient Services Assistant (PSA) and Orderly. [104] This Certificate also allowed the plaintiff to apply for a position as a Ward Clerk. The latter, however, was best dealt with as an administrative position.
Health services assistant - PSA/Orderly
[104]DCB 97-99
148 A PSA’s duties entailed cleaning, food services, patient movement and transport and changing bed linen. The cleaning tasks described in the report involved repetitive bending and sweeping movements when vacuuming and mopping and moving objects such as beds to clean under and around these, as well as repetitive wiping when cleaning patient’s rooms and bathroom areas. Full buckets used in mopping and vacuum cleaners were estimated to weigh approximately 4 kilograms to 5 kilograms respectively. On the other hand, food was delivered by trolley and food trays and full water bottles were said to weigh approximately 2 kilograms each.
149 An Orderly’s duties entailed transporting patients around the hospital by walking escort, wheelchair, bed, trolley or hospital ambulance, assisting nursing staff in turning, bathing, showering and mobilising patients and lifting and moving beds in association with the transferral of patients between Wards and performing messenger duties. According to the report, bending, leaning and kneeling were frequently required when assisting and transporting patients, lifting was up to 9 kilograms occasionally, repetitive handling of most objects of 10 to 15 kilograms was involved, including handling of equipment such as gas cylinders and an Orderly was required to manoeuvre wheelchairs, trolleys and beds whether empty or occupied.
150 Dr Middleton considered these positions unsuitable employment. Dr Yong disagreed.
151 In his report dated 26 February 2014, in response to questions posed by the defendant’s solicitors, Dr Yong described the duties of an Orderly or Ward Assistant as including:[105]
[105]DCB 62
· Cleaning duties such as wiping surfaces, mopping, sweeping and vacuuming.
· Restocking items such as soaps and gloves.
· Couriering items such as blood tests and paperwork.
· Assisting nursing staff.
· Pushing trolleys.
· Removal of waste and dirty linen.
152 Under cross-examination, the plaintiff accepted that the list compiled by Dr Yong accurately described the job for which he had trained at the Chisholm Institute and the tasks required of him during the placement.[106] The plaintiff, nonetheless, said that he had experienced difficulties in the performance of these tasks. He rejected the suggestion that he had given Dr Yong to believe, as reported by the doctor in March 2014, that the placement had not caused him “any significant discomfort”.[107]
[106]TN 55-56
[107]TN 54-55 and DCB 67D
153 It became apparent during re-examination that the plaintiff probably had no understanding of the meaning of this phrase.[108] However, in cross-examination, Dr Yong produced his notes and indicated two matters. Firstly, that the phrase meant something more than minimal discomfort and, secondly, that he had written the word “OK” in his clinical notes next to the words: “placement Dandenong Hospital”.[109] He also accepted that, on occasion, depending on the individual involved they may indicate that they were okay when they were not and may, as Dr Middleton found in the plaintiff’s case, require prompting to obtain a better picture of their circumstances.[110] Allowing for all of these matters and Dr Yong’s reports, I was not satisfied that the notes made by Dr Yong supported an inference that the plaintiff had worked without discomfort or pain during the placement.
[108]TN100
[109]TN 268-269 and DCB 141
[110]TN 269-270
154 As it turns out, later reports submitted by Dr Yong suggest that there was some interchange, from time to time, in the discussion of the roles of Orderly and PSA. The latter was also described as: Ward Assistant.[111]
[111]DCB 65-66
155 In his final report dated 25 March 2014, Dr Yong appeared to clarify his earlier evidence by indicating that the role of Ward Assistant and PSA were similar, although the duties of a Ward Assistant or PSA could differ from hospital to hospital. Dr Middleton clearly accepted the accuracy of this statement. [112]
[112]TN142-143
156 Dr Yong then set out in some detail the duties of a PSA at a large public hospital in Melbourne, following a recent worksite assessment by him for another injured worker. The focus of these duties had been on cleaning, removal of waste, serving meals, managing consumable items in the Ward, washing toilet pans and assisting in the transport of patients.[113]
[113]DCB 67D-G
157 Dr Yong remained of the opinion that the plaintiff was capable of performing the tasks he originally reported were required of an Orderly or a Ward Assistant and he elaborated on the various ways in which he felt the plaintiff could perform these tasks.[114]
[114]DCB 67G-I
158 In his report, Dr Middleton deemed PSA or Orderly positions as unsuitable, due to their physical requirements, namely repetitive use of both arms, reaching above shoulder activities, lifting weights and repetitive mopping.[115]
[115]PCB 100
159 Under cross-examination, Dr Middleton rejected the proposition that the plaintiff was physically capable of performing the tasks undertaken by him during the placement on an ongoing and regular basis. He relied on the plaintiff’s report of discomfort in performing this work and on the placement being part of a training course, not an actual job.[116] In response to specific questioning, Dr Middleton made the following salient points.
[116]TN 135-140
160 The suggestion that, because some hospitals may allow opportunities for rotation of tasks in PSA or Orderly positions, the plaintiff’s disability (restrictions) could be accommodated (“I agree there are lots of tasks, and - but they normally have to do them in an efficient manner. And they normally complete an area before they move on to another task”) was, as Dr Middleton said, untenable. In his opinion, it was not reasonable to expect that a hospital would permit the plaintiff or any PSA/Orderly, for example, to mop only part of a Ward and then rest.[117]
[117]TN 144-145, 157-158 and 178-179
161 Dr Middleton also rejected the evidence of Dr Yong to the effect that, cleaning duties were manageable because the plaintiff could use his right hand to wipe surfaces, he could sweep using a lightweight dry mop either with one or both hands and he could wet mop floors by a varying his grip or holding the mop in an over-the-hand grip.[118] As Dr Middleton explained, a PSA may be able to dodge some of the tasks inherent in the position but in his words: “cleaning is cleaning”.[119]
[118]DCB 67G
[119]TN 177
162 In short, I have accepted the force of Dr Middleton’s evidence that, firstly, cleaning is a primary duty for a PSA and, secondly, even with the restrictions contemplated by Dr Yong, the repetitive and at times likely forceful activities involved in sweeping and mopping alone could not be safely performed by this plaintiff on a regular and efficient basis. Furthermore, the suggestion by Dr Yong that the cleaning tasks identified could be rotated and modified in the manner he recommended, might have some currency when establishing a return to work program for an injured employee. However, there was no evidence that existing full-time or part-time PSA, Ward Assistant or Orderly positions catered for employment of individuals who could not meet the inherent requirements of the position without rotation of tasks or the modification of tasks in the manner suggested to ensure that individual’s safety.
163 I was also persuaded on the evidence available, that Dr Middleton’s concerns about lifting patients and lifting heavy bags of a dirty linen were justified.
164 It was common ground that lifting devices are available in hospitals. Even so, in Dr Middleton’s opinion, the plaintiff remained at risk because he would be required to physically assist patients onto these devices.[120] The description given by Nabenet of the duties of an Orderly indicated as much, particularly, where the report speaks of turning, bathing, showering and mobilising dependant patients.
[120]TN 133
165 Whilst, in 2014 other doctors have expressed opinions about the extent of the plaintiff’s capacity to lift weights on a repetitive basis, for the purpose of this case, the evidence of the occupational physicians has been particularly important in determining whether the plaintiff has the ability to perform the inherent requirements of various occupations. I have preferred Dr Middleton’s more conservative assessment of the safe lifting weight because it is within the range given by the other specialists. On the other hand, Dr Yong’s evidence in this regard was unclear, because depending on the proper interpretation of his final report, he restricted repetitive lifting of weights to either 7kgs or 10kgs.
166 Dr Middleton told the Court that when full with damp towels and the like, a dirty bag could weigh well in excess of 10 kilograms. Dr Yong did not disagree. His evidence was to the effect that a PSA/Orderly could lighten the load in larger bags of dirty linen by first removing some of the linen.[121] This solution was roundly rejected by Dr Middleton who was concerned that, the activity of removing dirty linen was also unsafe and likely to cause problems with the plaintiff’s shoulder.[122]
[121]DCB 67I
[122]TN 180-181
167 I have preferred Dr Middleton’s opinion. Even were the plaintiff were capable of safely lifting up to 10 kgs on a repeated basis, it would be difficult to reliably predict the weight of full dirty linen bags in a hospital environment from one day to the next. Whether a hospital would treat this as an efficient or hygienic way of dealing with dirty linen bags and allow a PSA to decant dirty linen was another matter.
168 Accordingly, I was satisfied that positions as an Orderly or PSA did not constitute suitable employment for this plaintiff in all the circumstances.
Administrative positions
169 In addition to the Ward Clerk position, the Nabenet report identified a number of office-based administrative positions for an Information Booth Reception/Call Centre Operator, as a Customer Services Professional and as an Administration/customer Service Officer.[123] Notably, all of the positions mentioned, probably, required computer skills in addition to administrative skills. The makers of the Nabenet report were specifically taken to the description of the Customer Service Officer position to which Mr Holland referred in his affidavit. The duties of this position were spelt out in Dr Yong’s report dated 15 May 2013 under the headings: customer service, sub-contract management and administration.
[123]DCB 99-101
170 In their written reports, both Mr Miller and Dr Middleton foresaw difficulties for this plaintiff with prolonged keyboard work. This evidence was not directly challenged.
171 The plaintiff is a middle-aged man with a modest education and a long history working as a truck driver. Having regard to the description of the duties involved, self-evidently, to perform the inherent requirements of the administrative positions identified either by his former employer or by Nabenet the plaintiff would need to acquire computer and keyboard skills, in addition to acquiring skills in specific administrative tasks. This raised the question of whether, when proper allowance was made for the plaintiff’s education and background, with training, he was likely to achieve an adequate level of competency to work in a commercial setting and, if he could achieve this level of competence, whether he could also avoid problems with his shoulder condition due to prolonged typing or keyboard work.
172 Dr Yong reported that the office-based duties described by Mr Holland for a Customer Service officer, were likely to comply with his restrictions. He considered this job “reasonable”.[124]
[124]DCB 56
173 At hearing, the plaintiff confirmed that he did not have computer skills and he gave evidence to the effect that he was unfamiliar with tasks such as establishing or accessing an email account. Apparently the plaintiff’s Hotmail account had been established by Nabenet and the plaintiff’s emails were directed to Ms Sassons’ computer. To my mind, the plaintiff’s answers to questions exploring his familiarity with computers and email accounts demonstrated a genuine ignorance of computer-related matters and a lack of familiarity with even the basic concepts.[125] This was hardly surprising given the level of the plaintiff’s education and his work history.
[125]See generally TN 48-53 and 97-100
174 Whilst, in the past, there may have been discussion about courses to assist the plaintiff in learning to use a computer, to date the plaintiff has not been offered this training by the defendant, the focus having been on the plaintiff retraining and placement as a health services assistant. The plaintiff, nevertheless, told the Court that, depending on his finances, he was prepared to attempt a basic computer course to see how he went.[126]
[126]TN 53
175 The Ward Clerk role described a sedentary administrative role, which required the employee to deal with visitors, admissions, discharges and telephone calls, liaise with areas of the hospital team, maintain records and a database, provide organisational support for patient movement and delivery of care and sort and prioritise inpatient correspondence. As the report shows, candidates for this position required strong administration and computer skills.[127]
[127]DCB 99
176 Dr Middleton clearly accepted that the plaintiff would benefit from acquiring basic skills in the use of a computer. His evidence, however, also emphasised the doctor’s concern that the inherent requirements, of the position as a Ward Clerk, involving as they did keyboard work and computer-based skills, were unachievable (“Well, you’ve got to not just be able to do e-mails and – because in the case – they’ll have to run the program that the company has, be it a hospital or be it anything, and they really need to be able to do Excel and spreadsheets and things like that. That’s where it becomes a commercially viable thing. If the going to do stocktakes and things like that – it depends again on what industry we’re talking about. In a hospital they’ve got a lot of daily notes to enter into. They often have to fill in forms, write letters – it’s – you’ve got to be proficient”). [128]
[128]PCB 101 and TN 189
177 Dr Yong, on the other hand, considered office-based administrative duties as a Ward Clerk likely to comply with the restrictions and “reasonable”.[129]
[129]DCB 66
178 To a greater or lesser extent, each of the other positions nominated in the Nabenet report required computer skills and, it follows proficiency in using a keyboard and computer-related.
179 Dr Middleton rejected these positions as unsuitable primarily because of the computer skills requirement. He also rejected the Information Booth Reception/Call Centre job because, in Dr Middleton’s opinion, the plaintiff lacked the postural endurance to successfully cope with this job. Dr Middleton was not cross-examined about the meaning of this phrase, although discussion during re-examination concerning the plaintiff’s reported tolerances for sitting, standing and walking, elicited a response from the doctor through which he explained that a painful shoulder could produce postural intolerance.[130]
[130]TN 169
180 In any event, I understood the reference to “postural endurance” to incorporate the plaintiff’s ability to maintain his posture for prolonged periods whether at a keyboard or in the performance of administrative tasks.
181 Whilst I accept that, with training, the plaintiff may acquire basic computer skills which could assist in making job applications, the plaintiff satisfied me that he probably does not have the ability to acquire the skills required for the positions identified in the Nabenet report or in administrative occupations generally.
Conclusions
182 The defendant did not adduce evidence of employment for which the plaintiff was currently suited or with rehabilitation and training would be suited. Based on all of the evidence, the plaintiff satisfied me that impairment of his left shoulder probably has reduced his capacity to earn 60% or more of the without injury earnings figure in suitable employment for the foreseeable future.
183 Accordingly, applying the test under the Act, by reason of work-related impairment of the plaintiff’s left shoulder:
· I find that the plaintiff has a loss of earning capacity of 40% or more and that he will after the date of hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40% or more;
· I am satisfied that rehabilitation and retraining are unlikely to improve the plaintiff’s capacity for employment to a level that would take him over the statutory threshold;
· the plaintiff has satisfied me that when judged by comparison with other cases in the range of possible impairments or loss of body function, loss of earning capacity is fairly described as more than significant or marked and as being at least very considerable.
184 I propose to make an order granting leave to the plaintiff to commence proceedings against the defendant in respect to pecuniary loss damages for work-related injury to his left shoulder on or about 25 October 2010.
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