Templin v Victorian WorkCover Authority
[2017] VCC 574
•19 May 2017 (revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-01745
| KAREN TEMPLIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 May 2017 | |
DATE OF JUDGMENT: | 19 May 2017 (revised) | |
CASE MAY BE CITED AS: | Templin v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 574 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the right shoulder – pain and suffering conceded – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms J Frederico | Maurice Blackburn |
| For the Defendant | Mr C Miles | Wisewould Mahoney |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with L’Oreal Australia Pty Ltd (“the employer”) on 4 October 2013 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, pain and suffering having been conceded on the morning of the hearing.[1] An application for psychiatric impairment under clause (c) was withdrawn.[2]
[1]Transcript (“T”) 2
[2]T1
3 The relevant body function pursuant to s134AB 37(a) is the right shoulder.
4 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
5 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
6 In this case where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
7 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
8 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
9 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] and Grech v Orica Australia Pty Ltd & Anor[4] in reaching my conclusions.
[3](2005) 14 VR 622
[4](2006) 14 VR 602
11 The plaintiff relied upon three affidavits and gave viva voce evidence. She was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
12 The plaintiff is presently aged fifty-one, having been born in October 1965.
13 After Year 10, the plaintiff completed a floristry apprenticeship at Whitehorse College. She then worked as a florist for twenty-two years.
14 After such a long time in floristry, the plaintiff decided she needed a change and started work with the employer as a casual picker/packer, usually working four to five days a week. She was made a full-time, permanent employee in this role in 2001. She later moved into credit returns, where she became team leader.
15 The plaintiff stayed in that role for five or six years, then moved to the position of team leader in picking and packing in the salon department, a job she did for about four or five years before the said date.
16 In this role with the employer, the plaintiff did a mixture of desk and physical work. She supervised workers, occasionally doing some picking and packing, delivered empty boxes in pallets to the workers, took fully picked boxes to despatch using a hand trolley, and did the “waitings for stock”, namely filling boxes that were not available at the time of picking. She sorted the pick slips for the pickers, did reporting, and also ordered the stock. Her work was about half desk and half physical over eight hours.
The incident
17 The plaintiff injured her right shoulder on the said date while using an old trolley jack which became jammed to the pallet. When continuing to push and pull, she heard a pop in her right shoulder and immediately felt pain (“the incident”).
18 The plaintiff continued working and ignored the initial pain as she thought her shoulder would get better, but it became progressively worse, and she was having difficulty holding things at work.
Treatment
19 The plaintiff eventually attended her general practitioner, Dr Lake, on 20 July 2013. She referred the plaintiff for an x-ray and ultrasound which was carried out later that month. The plaintiff was advised the ultrasound showed a full-thickness tear of the supraspinatus.
20 The plaintiff was referred by Dr Lake to Mr Raleigh, orthopaedic surgeon. On 9 September 2013, he operated on her right shoulder, carrying out an arthroscopic decompression and rotator cuff repair (“the surgery”).
21 On 27 June 2014, Mr Raleigh arranged for the plaintiff to have a right-sided subdeltoid bursal injection. She had a further MRI scan of her right shoulder on 21 July 2014, as she was still experiencing some pain and weakness in the shoulder.
22 In August or September 2014, the plaintiff had a hydrodilatation of her right shoulder.
23 As a result of a change in her duties in August 2014, the plaintiff developed left elbow pain, as she used her left arm when her right shoulder became sore due to the repetitive nature of the work.
24 The plaintiff was referred for an ultrasound of her left elbow on 12 September 2014. In November that year, she had an ultrasound-guided steroid injection into her left elbow. The pain, however, returned, and she had a further ultrasound of the left elbow on 19 December 2014, which confirmed tendinopathy.
25 The plaintiff’s doctor was concerned there may be an infection in the plaintiff’s left elbow but this was not shown on a CT scan of 31 December 2014.
26 The plaintiff also developed pain in her left shoulder. On 30 September 2015, she had an ultrasound, which she was advised did not show any definite cause to her symptoms.
27 After the surgery, the plaintiff had regular physiotherapy from Mr Willoughby, ceasing in November 2015.
28 In 2014, the plaintiff started seeing the psychologist, Dr Lim, and in 2015, started to see another psychologist, Ms Pantcheko.
29 In late 2015, the plaintiff was taking OxyContin, usually daily, but was taking it twice a day to continue with study then being undertaken by her. She also took Endone, Panadeine Forte and Lexapro once a day. The Endone and Panadeine Forte were prescribed on an “as needs” basis, but she was taking it regularly while doing the course, as she experienced pain with continuous touch typing. She was then seeing Dr Lake fortnightly.
30 The plaintiff presently takes at least two Endone each day and up to four. She also takes at least two OxyContin a day. She takes Panadeine Forte about three times a week, two at a time.
31 This medication gives the plaintiff constipation. Problems with fatigue and drowsiness are now “not as full” as she has taken the medication for a long time.[5]
[5]T7
32 The plaintiff does not like taking tablets and she is awaiting further pain management to try to get her off her tablets.[6] Endone makes her a little drowsy and she tends to sleep when she takes this medication at around 1.00pm. If she takes more tablets, she is really groggy, but they also help with the pain.[7]
[6]T24
[7]T25
33 On average, the plaintiff lies down in the afternoon four to five times a week because of pain and fatigue.[8]
[8]T26
Pain and restrictions
34 In her first affidavit sworn in November 2015, the plaintiff described constant pain in the right shoulder which affected her sleep, resulted in difficulty driving, restrictions in housework and the inability to do gardening or prepare wedding bouquets which she did time to time on weekends. She had lost weight, avoided social contact, other than with close friends, and no longer had the energy or confidence to engage in the active social lifestyle she had previously enjoyed.
35 The plaintiff’s left arm had been affected because she had been overusing it to compensate for the right shoulder. Her left elbow was particularly painful but, more recently, she developed some niggly pains in her left shoulder.
36 In her second affidavit sworn on 3 May 2017, the plaintiff confirmed continuing problems deposed to earlier in relation to sleep, driving, housework, gardening, the inability to play with her young grandchildren and problems with daily activities such as dressing.
37 The plaintiff now has more or less constant pain in the right shoulder, which she assesses at about 6 to 7 out of 10. When she first takes the medication, the pain reduces to about 4 to 5 out of 10 and gradually increases as the effects thereof wear off.
38 The pain in the plaintiff’s right shoulder pain is constant and increases when she uses it doing things such as housework. She then takes painkillers to try to ease the severity of the pain. She needs to take a lot of breaks, and it takes her a long time to get such tasks done.[9]
[9]T26
39 Because of her medication, the plaintiff does not drive very far at all. She has difficulty steering because her arms hurt and she does not feel safe driving.[10]
[10]T26
40 The plaintiff continues to rely more on her non-dominant left upper limb and continues to suffer some aching in her left shoulder and left elbow.
41 The plaintiff agreed she told Dr Baynes her left elbow problem is not too bad now, as long as she does not overuse it. If she overdoes things, her elbow aches and is very sore.[11]
[11]T27
42 The plaintiff agreed her left elbow pain was intermittent and that she had an intermittent dull ache in her left shoulder.[12] If she uses it, she experiences pain.[13]
[12]T9
[13]T26
43 The plaintiff is never free of right shoulder pain. If she uses her left arm she experiences left shoulder and elbow pain. That occurs if she attempts to use her left arm away from the body, or repetitively, or doing activities such as typing.
44 The plaintiff’s pain is severe at times. She tends to lie down each day because of pain, and might lie down for some hours. That severe pain is unpredictable. While it occurs if she overuses her arms, the pain, particularly in her shoulder, is unpredictable. She can wake in the morning and suffer from quite severe pain for the whole day.
Work after the incident
45 The plaintiff returned to work on 18 November 2013 in her pre-injury role of team leader of picking/packing. These part-time alternate duties involved desk duties and no lifting. She initially worked three days a week and slowly increased her hours. The computer work in that role was giving her a lot of pain, so her hours fluctuated during the next year. She struggled with her duties.[14]
[14]T12, T32
46 During the return to work program with the employer, the plaintiff started to experience increasing left arm pain, including pain in her left elbow and shoulder as a consequence of her not being able to use her right shoulder.
47 In August 2014, the plaintiff moved to the valued client service department (“VAS”) where she worked for four to five weeks.[15] She was placed in this area because she was told by her manager she was unproductive because the 2 IC, engaged to help her, was doing all the lifting and carrying boxes and the plaintiff was only doing some scanning.[16]
[15]T7
[16]T11
48 In this section, the plaintiff’s duties involved sticking stickers on products, pulling plastic bags for gift packs, making up cartons and putting gift packs together. Although it was light work, it was repetitive, like a production line, and she found it difficult to cope. She was taking more painkillers during the day. She told her manager, the Nabenet representative, and also a union, she was not coping.[17]
[17]T23
49 At that time, the plaintiff was progressing nearly to seven hours into eight hours’ work per day. She had worked up to 35 hours per week as her physiotherapist Mr Willoughby noted.[18] However, she was struggling and taking painkillers all throughout.[19]
[18]T5
[19]T23
50 The plaintiff had been slowly building up her hours and was nearly back to full time, albeit with restrictions, when she was told by the employer it could not provide suitable duties. Her employment was terminated in March 2015. She was very upset at the way she was treated.[20]
[20]T6
51 The plaintiff agreed she was doing a useful job but not to her full potential.[21] She would have gone back to her team leader role if that work was offered to her.[22]
[21]T6
[22]T23
52 While pursuing the return to work program, the plaintiff was taking daily Endone and other medication, either OxyContin or Panadeine Forte. However, by the end of the day, she was in very bad pain and really unable to use either arm, and pushed herself to keep working.[23] During that time, the plaintiff had an injection into her right shoulder, a hydrodilatation of that shoulder and injections into her left elbow.
[23]T32
53 The pain and lack of improvement in the plaintiff’s shoulder, combined with not working, got her down. She had always worked since leaving school and while her children were younger, and was used to being financially independent and enjoyed the company of work friends. The productive life which she had previously led had been taken away from her.
54 The plaintiff has not returned to work since her employment was terminated in March 2015. She applied for a few jobs, one of which was in a despatch area, which involved more computer than physical work, but she did not hear further when she told the potential employer of her injury.
55 The despatch job involved computer work and a little hands on work. The plaintiff was pretty sure it was full time. She did not really feel that she could do it but she wanted to work and had worked all her life.[24]
[24]T13
56 The plaintiff undertook a Certificate II in Administration and Medical Administration (“the course”) with the view to finding work in medical administration. The course went for eight months. She was required to attend four days a week from 9.00am to 3.00pm.
57 The plaintiff learned to touch type during the course but did so with difficulty. She could not hold her hands up to type. She would have difficulty with the posture shown in the photograph of the workstation of the suggested receptionist role.[25]
[25]T28
58 The plaintiff thought if she could obtain a job as a receptionist in a doctor’s surgery part time, where there was only a little bit of typing, she was hoping she would be able to do it.
59 The plaintiff completed the course in November 2015. Whilst she had difficulty with the course, she was determined to finish it as she wanted to give herself the best possible chance to get back into the workforce.
60 The plaintiff spoke to her teachers and supervisors, who gave her extra breaks, but that meant she fell behind in the course work, but caught up doing some of it at home. She was given special consideration to hand in her portfolio and assignments late.[26] She had pain in both arms, especially the right arm, when typing and found it very difficult to touch type. Her typing speed was slow.
[26]T27, T28
61 The plaintiff had planned to work as long as possible until the age of sixty-five. She had applied for so many jobs without success, but not in the last two months, as Dr Lake was certifying her incapacitated for employment.
62 The plaintiff had a telephone interview for one of the many jobs. It was a front administration job. When she advised she had had a worker’s compensation claim, she did not get any further than the interview.
63 The plaintiff would like to try to work, but does not believe she would be able to do so full time. She would like to do some sort of administrative work or front of office type work.[27] She did not believe she could do any repetitive tasks such as typing, filing and telephone work, on a sustained basis and would need to have regular breaks.
[27]T13
64 The plaintiff described her computer skills as reasonable. Whilst she had learned a number of programs during the course, she would still require help applying them.[28]
[28]T10
65 The plaintiff has mainly applied for receptionist work. She made a number of applications on the open market to which she received no response. At best, she believed she could try to work a few hours a day, maybe a few days a week, and did not know whether she would be able to do this limited amount of work.
66 The plaintiff is not able to do any overhead work, heavy lifting or work involving repetitive tasks and constant use of her upper limb. She could no longer do warehousing work.[29]
[29]T13
67 The plaintiff’s main problem is right shoulder pain. She does not have problems with prolonged standing. She can sit for a while but then becomes agitated and she has to get up and walk around.[30]
[30]T13
68 The plaintiff takes strong medication for her pain, which made her drowsy and groggy, and she fatigues easily. The medication also affects her concentration.
69 The plaintiff has no work experience in administration, receptionist or medical administrative front of office, or information type roles. Her most recent work experience was in a factory.
70 The plaintiff is now nearly fifty-two. She is restricted in her ability to use her right upper limb and has to be careful using her left upper limb. She has applied for jobs on “Seek” and “Jora” consistently for twelve months. She feels depressed. Having regard to her age, work experience and physical restrictions, she does not know who would employ her or what work she could realistically perform.
71 The plaintiff is presently in receipt of Newstart payments,[31] her weekly payments of compensation having ceased in March last year.[32]
[31]T24
[32]T15
72 In the last three months, Dr Lake has certified the plaintiff totally unfit for work. During that time, the plaintiff has felt she just cannot use her arms and she has to lie down at times.[33]
[33]T16
73 The plaintiff has not applied for work in the last two months or three because of a worsening in her condition. She is very sore in her shoulders and Dr Lake has certified her as unfit for work. She denied she stopped applying for jobs because of her case.[34]
[34]T14
74 Since ceasing work, the plaintiff has been registered with a disability employment agency in Narre Warren. It has not been able to find work for her and suggested she apply for a Disability Support Pension, which she has done, and is awaiting to here from Centrelink.[35]
[35]T12
75 The plaintiff agreed she would be suitable for office type work and warehouse clerk work if there were no lifting or repetitive activities.[36] She is not interested in customer service as she worked as a florist for twenty-two years and she was sick of it and needed a change.[37]
[36]T16
[37]T17
76 The plaintiff discussed the suggested jobs with Dr Baynes. A lot of the duties involved were repetitive.[38]
[38]T17
77 The plaintiff agreed there was probably no reason why she could not meet and greet customers at the front of a Bunnings store. She could work in a call centre if she had the use of headsets.[39] She presumed she could work in an aged care facility in an administrative capacity as long as the work was not repetitive. She could work in very short bursts and but would have difficulty typing due to pain after about five minutes and would then have to have a break for about half an hour. The pain would lessen, not disappear with that break.[40]
[39]T17
[40]T29
78 The plaintiff could manage a bit of photocopying as long as she was able to have a break.[41]
[41]T20
79 The plaintiff thought the job of a credit clerk processing returned orders would be repetitive. She could check goods on the computer if it was not too repetitive and she could do data entry work in short bursts. Her lifting limit would be no more than 5 kilograms.[42]
[42]T22
80 The plaintiff had worked as a credits clerk with the employer and was familiar with the role. She could give a job of this nature a try but did not think she could do it with her injury.[43]
[43]T31
81 The plaintiff thought she could work as a handline team leader as long as there was no lifting, no repetitive duties or constant moving of her arms. If she was required to set up seventeen workstations for packers before they commenced work and also lift items ranging from 5 to 10 kilograms, she could not do that job.[44]
[44]T31
82 The plaintiff did not feel she could do receptionist work full time because of the pain in her shoulders.[45] She could always try.[46]
[45]T23
[46]T30
Treaters
83 In her report of January 2017, the plaintiff’s general practitioner, Dr Lake, noted the plaintiff had severe ongoing chronic right shoulder pain requiring twice daily OxyContin.
84 The plaintiff described the pain as a chronic constant ache in the posterolateral aspect of the shoulder and averaged 6 out of 10, and up to 9 out of 10 when she needed to use her right arm.
85 Further, the plaintiff had ongoing intermittent left elbow pain, most noticeably when she used her arm. Left shoulder pain was intermittently present as a dull ache and noticeably worse when the plaintiff used it to compensate for her lack of ability to use her right arm.
86 Dr Lake thought the plaintiff would never be able to return to her pre-injury duties. With regard to alternate employment, while some argument may be made that she was capable of doing short periods of non-repetitive work with significant restrictions on the use of her arms, effectively, it was not realistic to believe that she would be able to return to any work without risking further injury and experiencing worsened daily pain. Therefore, Dr Lake considered the plaintiff was totally incapacitated.
87 Dr Lake thought the plaintiff’s condition was stable and not likely to show any improvement in the future. The best that could be hoped to be achieved, was improved management for her chronic pain and depression.
88 Mr Raleigh, the plaintiff’s operating orthopaedic surgeon, first saw the plaintiff in August 2013 on referral from Dr Lake.
89 Clinical findings and an ultrasound showed a full-thickness tear of the right supraspinatus tendon.
90 An arthroscopic decompression and rotator cuff repair was undertaken at Epworth on 9 September 2013.
91 Mr Raleigh saw the plaintiff on multiple occasions after the surgery and saw the plaintiff in August 2014. Significant improvement was noted in January, March and April 2014.
92 On 12 June 2014, Mr Raleigh noted the range of movement was perfect and power was normal but the plaintiff was getting a little bit of inflammation in her shoulder and he organised a cortisone injection. An MRI scan showed the actual full-thickness tear had healed. Mr Raleigh organised a hydrodilatation, as the plaintiff presented with slightly increased stiffness. He then thought the prognosis should be very good.
93 In his short 2015 report, Mr Raleigh noted that he had subsequently seen the plaintiff once and she was still having pain in her right shoulder and left elbow. He organised an injection into both areas.
94 Mr Raleigh did not comment on the plaintiff’s work capacity.
95 Mr Willoughby, physiotherapist, reported in October 2014.
96 Mr Willoughby then thought, even though the plaintiff had remained in pain, she had worked extremely hard with rehabilitation to get to a stage where she could stay at work. In spite of her strong analgesics, the plaintiff was remaining at work, performing non-repetitive duties with a 5-kilogram lifting limit, and performing computer tasks.
97 Mr Willoughby noted the plaintiff was diligent with her return to work, gradually increasing her hours over a period of a few months, and had gradually increased from less than twenty hours to a stage where she was working about thirty-five hours a week.
98 With different duties, the plaintiff noted an immediate increase in her right shoulder pain and she attempted to perform these duties purely with her left hand, which led to a left sided lateral epicondylitis forming.
99 Mr Willoughby then thought, if the plaintiff was to return to work, the hours would have to be gradually increased over two months for her to return to full-time hours. After a three to four-month ramp of gradually increasing hours, he thought she would be capable of coping with full-time restricted duties. He considered the plaintiff would either need to stay performing lighter duties or permanently altered duties.
Medico-legal evidence
100 Dr Joseph Slesenger, specialist occupational physician, examined the plaintiff in November 2016.
101 The plaintiff then described pain in the right shoulder that was moderate to severe. She had difficulty with elevating, forward reaching, and lying on her right hand side. As a result, she had become more reliant on the left side.
102 The plaintiff had begun to develop pain in her left shoulder in late 2014 or early 2015, and undergone treatment in relation thereto. However, her symptoms persisted. She described mild to moderate pain in her left shoulder, with some difficulty in elevating and forward reaching.
103 Further, the plaintiff advised, due to her reliance on her left side, she began to develop left elbow pain, noticeable on forward reaching, pushing and pulling, and externally rotating. She had undergone treatment, to which her symptoms had responded reasonably well; however, she still had intermittent mild pain around the left elbow, particularly on gripping and forward reaching.
104 The plaintiff told Dr Slesenger of her difficulty performing light duties, and after the termination of her employment, problems with attending the course at Chisholm TAFE.
105 Dr Slesenger thought the plaintiff’s left shoulder symptoms developed as a result of avoidance of the right side, and noted she had been diagnosed with left shoulder bursitis and had also developed a left elbow lateral epicondylitis.
106 Dr Slesenger thought the plaintiff had a capacity for work with the following restrictions, namely:
· no over shoulder reaching
· no push, pull, carry or lift over 3 kilograms
· no sustained forward reaching
· no prolonged typing greater than 45 minutes
· Working 4 hours a day, four days a week, with a 5-minute rest break per hour.
107 Dr Slesenger suggested these restrictions in light of the severity of the plaintiff’s right shoulder impairment, her functional limitations, driving restrictions, her age, her past occupational experience and her transferable qualifications.
108 Dr Slesenger noted the reports of Dr Baynes and Ms Green were broadly similar with his own assessment, namely the plaintiff had capacity for work with restrictions. There was some agreement with regard to the type of work the plaintiff could consider, and also the hours she was likely to be able to maintain. Having seen those reports and also Mr Dooley’s report, Dr Slesenger did not change his view.
109 In a further supplementary report, Dr Slesenger confirmed the plaintiff could not return to work in the role of a store person, picker, assembler and team leader, as the jobs were outside her capacity limits.
110 Dr Slesenger thought the plaintiff had the capacity to return to work as a reception information officer on suitable hours.
111 Dr Slesenger confirmed his earlier view, having been provided with the Recovre Suitable Employment Report.
112 Mr Miller, orthopaedic surgeon, examined the plaintiff in February 2017.
113 The plaintiff told him her right shoulder was a major problem, with ache, discomfort and pain, which was worse with repetitive and overhead activities. There were less severe symptoms in the left shoulder. There was ache, discomfort and pain in the left elbow.
114 Mr Miller thought the plaintiff’s work restrictions related to the right shoulder injury. He considered she would have difficulty with work involving repetitive right arm action, use of the right arm in the above shoulder position, lifting of weights of more than 5 kilograms, and overhead activities. He considered she could therefore not return to her pre-injury duties on any significant full-time or part-time basis.
115 Having reviewed the reports from Dr Lake and Dr Slesenger, Mr Miller thought their views, although somewhat different, were broadly similar and consistent with restrictions outlined in his report. He deferred to Ms Green’s view as to the suitability of the jobs discussed by her.
116 Mr Miller believed the plaintiff’s right shoulder injury alone would preclude a return to work on a significant full or part-time basis. Taking into account the further vocational assessment prepared by Ms Green, he believed a return to work for practical purposes would be highly problematic to achieve in this case, due to the ongoing effects of the work related right shoulder injury.
117 Mr Miller believed the plaintiff would not be able to return to the jobs suggested by Recovre unless the restrictions imposed by him were put in place permanently. He thought she would have difficulty with repetitive arm actions and that would include repetitive keyboard work, repetitive filing and other similar duties requiring repetitive arm actions, noting the plaintiff’s work is right-hand dominant. He also believed she would have difficulty with work involving repetitive handling of items or repetitive filing activities.
118 Mr Miller thought the plaintiff’s left shoulder was multifactorial and, in part, an overuse phenomena and it was, therefore, in part, work related.
The Defendant’s medico-legal evidence
119 Dr Baynes, occupational physician, examined the plaintiff in March 2016 and April 2017.
120 On re-examination, the plaintiff advised there had been no real change in her symptoms, and continued to report her right shoulder was worse.
121 The plaintiff reported continuous pain over the deep aspect of the right shoulder, radiating into the biceps and also into the lateral deltoid region. She continued to have a deep pain in the left shoulder on movement, as well as limited movements. She advised her left elbow was, in fact, not too bad. She occasionally had tenderness over the lateral aspect of the elbow with overuse, and advised the pain over the posterolateral aspect of the elbow will come and go. A cortisone injection had helped somewhat.
122 Following his first examination, Dr Baynes thought the plaintiff was fit for alternative duties, where there was no lifting greater than 5 kilograms and no lifting above head height, and where there was no repetitive forceful pushing or pulling of the right shoulder. He thought the plaintiff should not undertake repetitive forceful gripping with the left hand, particularly pincer gripping.
123 He believed the plaintiff was now able to perform duties in administration and reception work on a full time basis.
124 In his second report, Dr Baynes discussed the three suggested work roles and described the plaintiff’s response to those suggested jobs. He considered they would be suitable employment for her.
125 Mr Michael Dooley, orthopaedic surgeon, first examined the plaintiff in March 2016.
126 The plaintiff then advised she had a continuous aching type pain over the anterior aspect deep inside the right shoulder, with pain radiating down the upper arm, particularly with any increased activity. There was also restricted movement and weakness in the shoulder.
127 The plaintiff reported pain on overuse of the left shoulder, not as bad as the right. She had a deep pain inside the joint, which will catch on movement. She also had some restricted movement of the shoulder and was unable to sleep on it. She advised the left elbow was not too bad. She had intermittent pain over the lateral aspect thereof, particularly on undertaking recurrent work.
128 Mr Dooley thought the plaintiff was fit for alternate duties where there was no lifting greater than 5 kilograms, no lifting above head height, and no repetitive forceful pushing or pulling with the right shoulder. He thought she should not undertake repetitive forceful gripping with the left hand, particularly pincher gripping, and her ideal work should involve rotation of work tasks when she was fit for full-time hours.
129 Having undertaken the receptionist course, Mr Dooley thought the plaintiff would be ideally suited for office-type employment, particularly given her transferable skills as a team leader. However, he thought she was not fit for work which requires a high volume of data entry and repetitive mouse work. She would be fit, in his view, to work as a warehouse clerk in customer service, meet and greet, and call centre work with the use of a hands-free phone. He believed, having done the receptionist course, the plaintiff is now able to perform duties in administration and receptionist work full time.
130 Mr Dooley reviewed the plaintiff in April 2017.
131 The plaintiff advised she had ongoing pain in the right shoulder girdle region and she noted some pain in the left shoulder, and ongoing pain in the left elbow.
132 Mr Dooley thought the plaintiff’s elbow pain was most likely related to lateral epicondylitis of the elbow which was, essentially, a degenerative condition.
133 On examination, there was some residual mild tenderness, but a normal range of motion. Mr Dooley thought it was possible the plaintiff’s left shoulder girdle pain related to the underlying naturally occurring degenerative rotator cuff of that shoulder, noting her age of fifty-one.
134 In conclusion, Mr Dooley thought the constancy and intensity of the plaintiff’s ongoing pain and her described disability were greater than one would expect to see for her organic condition, noting a psychological reaction to her condition. He would have expected her to have a better range of right shoulder motion and to note some ongoing intermittent right shoulder girdle pain.
135 From an orthopaedic viewpoint only, Mr Dooley would expect the plaintiff to have a physical capacity to engage in a wide range of light physical activity and clerical type work. She would have difficulty with regular heavy physical activity and with work that involved a lot of activity at and above shoulder level.
The Plaintiff’s vocational evidence
136 Mandy Morgan of Flexi Personnel provided an earnings report of 16 March 2017, setting out the gross hourly rates on a full and part-time basis for the jobs of warehouse administrator ($20-$25 per hour), despatch clerk ($20-$25 per hour), receptionist ($19-$24 per hour), office administrator ($20-$25 per hour), sales assistant - light ($19-$24 per hour), bench work ($18-$22 per hour) and cleaner - light ($18-$23 per hour).
137 Ms Katrine Green provided a vocational assessment report in March 2017.
138 Essentially, Ms Green was of the view that no suggested job other than reception and information officer was suitable for the plaintiff. Due to the plaintiff’s dominant right shoulder injury, she would need to perform the duties of that occupation according to physical restrictions provided in the medical opinion, for four days a week and four hour shifts for the foreseeable future.
The Defendant’s vocational evidence
139 Janette Ash of Recovre provided a suitable employment report of 27 February 2017.
140 Suitable employment options were identified as receptionist, warehouse stock clerk and handline team leader.
141 The example provided of receptionist work was with an aged care provider in Blackburn South working full time. That job involved visitor greeting, computer based activities, telephone duties, pager system monitoring, mail management, general filing, invoicing and banking, receiving deliveries and photocopying.
142 The salary for this position was $55,000 to $60,000 per annum.
143 The suggested credit clerk (warehouse/stock clerk) job was located in Scoresby in a business which distributed pharmaceutical goods and products. The work involved checking in and examining returned goods, computer based tasks, and wrong item returns.
144 The role attracted an hourly wage of $32.00.
145 The suggested hand line team manager job was situated in Dandenong South in a commercial print marketing and mailing service business. The job involved setting up work stations, demonstrating, quality control/monitor target rates, progress report for current day/scheduling following day and general management of staff.
146 The base salary was $26.50 per hour.
Overview
147 As pain and suffering has been conceded, the only issue in dispute is whether the plaintiff can establish the requisite loss of earning capacity of 40 per cent on a permanent basis.
148 Counsel for the plaintiff submitted there is no employment for which the plaintiff is suited. If this was not accepted, her capacity was about four hours a day, four days a week as Dr Slesenger opined.
149 Counsel for the defendant submitted the plaintiff had a capacity for suitable employment in the suggested jobs such that she could not establish the requisite loss.
150 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[47]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[47](2010) 31 VR 1 at paragraph [12]
151 Counsel for the plaintiff submitted the plaintiff was an honest witness, which was critical, because if there was acceptance of her level of pain and medication it would make it “nil impossible for her to work.”[48]
[48]T40
152 I accept that the plaintiff was a truthful credible witness who gave her evidence without embellishment. She is highly motivated woman with a strong work ethic demonstrated by her attempts to continue work following injury and also after surgery until her employment was terminated in March 2015.
153 Whilst the plaintiff’s predominant impairment is to her right shoulder, I accept that effectively, there is a bilateral upper limb impairment.[49]
[49]T2
154 As the plaintiff explained, whilst at rest she experiences intermittent left elbow and shoulder pain however, when using her left arm as her right is too painful, her left upper limb pain increases.
155 In an effort to reduce her pain, the plaintiff ingests very high amounts of opiates,[50] with the side effects of drowsiness, fatigue and lack of concentration.
[50]T3
Loss of earning capacity
156 In addition to satisfying the narrative requirements, to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
157 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
158 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
159 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
160 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
161 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
162 I am therefore required to determine a “without injury” earnings figure. The parties agreed that the gross earnings from the financial year 2011-2012 of $56,501 was an appropriate “without injury” earnings figure. Sixty per cent thereof is $33,955.00 or $653.00 weekly.[51]
[51]T39
163 The plaintiff has a strong and consistent work history and attempted to resume light duties post injury but was, effectively, unable to continue with them. During that time, she had surgery, underwent a hydrodilatation and had two injections in the left elbow. After she ceased work, she had an injection in the left shoulder.[52]
[52]T3
164 Despite increasing her hours, the plaintiff struggled with her team leader duties and required significant painkilling medication to continue at work. She experienced further difficulties in the VAS role with increasing left upper limb problems.
165 Whilst the plaintiff’s general practitioner certified her fit for modified duties until three months ago, I accept that the plaintiff’s condition has continued to deteriorate as she described with increasing shoulder pain and the need to rest on a frequent basis. That situation explains Dr Lake’s current certification that the plaintiff is totally incapacitated.[53]
[53]T42
166 Dr Lake confirmed that the plaintiff is a very motivated woman, attempting to try and work in the face of great difficulty, whilst undergoing a range of treatments.[54]
[54]T40
167 I reject any suggestion that the plaintiff has stopped looking for work in the context of the pending litigation.[55]
[55]T35
168 I accept the plaintiff’s evidence that she could not cope with full time work because of her upper limb injury. She would have a great deal of difficulty with any typing work or data entry duties with a tolerance of only 5 to 10 minutes before she experiences an increase in pain.
169 As Ms Green reported, a typing test undertaken by the plaintiff indicated that her typing speed was below average, and she needed to take painkillers to do computer-based activities.[56]
[56]T42
170 Further, the plaintiff is unable to engage in any repetitive activities involving her upper limbs and is unable to carry or lift items in excess of 5 kilograms.
171 Because of the unpredictable nature of her pain, the plaintiff would not be a reliable employee able to attend work on a regular, consistent basis.
172 Further, the plaintiff’s ability to work for extended periods would be affected by her difficulties concentrating resulting from her high, strong medication intake.
173 The plaintiff’s attempts to find work have all been unsuccessful and I accept that she has recently stopped looking as her condition has deteriorated as she described.
174 For these reasons, I accept that the plaintiff could not perform any of the three jobs that have been identified by Recovre for more than a few hours at a time and not on a regular, consistent basis.[57]
[57]T40
175 The job of receptionist is not suitable for the plaintiff because of the typing and computer work involved and the posture she would have to adopt when engaging in this type of work as the photograph of the work station confirmed.
176 The plaintiff is familiar with the duties involved in the job of credits clerk. It wold require a significant amount of data entry and was, therefore, unsuitable for her.[58]
[58]T43
177 Whilst the plaintiff has experience working in a supervisory role,[59] the job of handline team leader, requires much more than supervision. Before the work day commenced, the plaintiff would be required to distribute items to staff and, also engage in bilateral arm carry of items weighing between 3 and 6.7 kilograms during the working day – duties she would be unable to undertake.[60]
[59]T34
[60]T43
178 Having accepted the plaintiff’s evidence as to her level of pain and restriction and her inability as a result thereof to work more than in short bursts, I reject the views of Dr Baynes and Mr Dooley who thought the plaintiff had a capacity for full time duties and prefer the evidence of Dr Slesenger.
179 In my view, the plaintiff’s maximum work capacity is that described by Dr Slesenger, who has consistently stated that she is capable of working four hours, four days a week as a receptionist and information officer.[61]
[61]T35
180 In these circumstances, I am satisfied the plaintiff has suffered the requisite loss of earning capacity of 40 per cent being unable to earn in excess of $653 per week on a permanent basis.
181 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
182 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
183 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
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