Treloar v Kempe Services Proprietary Limited
[2022] VCC 1778
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-05415
| GEOFFREY TRELOAR | Plaintiff |
| v | |
| KEMPE SERVICES PROPRIETARY LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 29 September 2022 | |
DATE OF JUDGMENT: | 8 November 2022 | |
CASE MAY BE CITED AS: | Treloar v Kempe Services Proprietary Limited | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1778 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – right shoulder impairment – pain and suffering conceded – loss of earning capacity only – retraining – permanency
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s327
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Richter v Driscoll [2016] VSCA 142; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Humphries and Anor v Poljak [1992] 2 VR 129
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC with Mr G Pierorazio | Stringer Clark |
| For the Defendant | Ms B Myers KC with Mr T Storey | TG Legal & Technology |
HER HONOUR:
1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of his employment with the defendant which occurred in or about 7 November 2018 (“the said date”).
2The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury”. The relevant body function is the right shoulder.
3The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, pain and suffering having been conceded.
4The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
5The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, Section 325(2)(e)(i)-(ii) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
6In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
7The question whether a worker is able to return to work in “suitable employment” specifically requires consideration of matters travelling beyond physical capacity to perform a task.[1]
[1]Richter v Driscoll [2016] VSCA 142 at paragraph [77]
8Section 325(2)(f) of the Act recites the formula by which loss of earning capacity is to be measured.
9Section 325(2)(g) of the Act requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
10Section 325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[2] and Richter v Driscoll,[3] in reaching my conclusions.
[2] (2005) 14 VR 622
[3] Supra
12The plaintiff relied upon two affidavits, and he was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13The plaintiff is presently aged fifty-four, having been born in June 1968. He is presently in receipt of Newstart benefits, weekly payments having ceased after 130 weeks.
14After completing Year 10, he then did a four-year diesel mechanic apprenticeship. His work history thereafter included working for Brambles for about three years repairing equipment, working for the defendant in its air and hydraulics section for around two years and then working at Keppel Prince for a similar time.
15He recommenced work with the defendant in about 2003 as a fitter. He was paid a base rate of $35 per hour.[4] His annual income varied between $100,000.00 to $115,000.00.
[4]Employer Claim Form
16When working for the defendant, sometimes apprentices worked alongside him and, at other times, they worked with co-workers on different crews and different jobs. He could not give a definite timeframe when he was involved with apprentices. He was all the time, but not directly.[5]
[5] Transcript (“T”) 6
17There were also times when he was involved in supervising staff, as many as ten or fifteen people – “just making sure the guys had the right tools for what they were doing, and they understood what the job role was”.[6]
[6]T7
18While working for the defendant, the plaintiff was a leading hand, but he also worked on the tools. About 10 per cent of his time as a leading hand was supervisory, but it could be up to 20 per cent.[7] In the supervisory role, the plaintiff had to do quality control and worksite inspections, and undertook job safety analysis (“JSA”) with other team members.[8]
[7] Mr Radley’s Vocational Report dated 26 February 2021
[8] T7
19He did not do the JSAs by himself. He sat down with a group of people and had an input. Someone else would have been writing it down, and the whole group would have added their input as to what was the problem on the job, like what hazards there were to be controlled.[9]
[9] T31
The incident
20On the said date, while working at the Portland smelter, after having dragged a heavy P&F trolley, and standing it up on its back, the plaintiff felt a sharp pain in his right shoulder (“the incident”).
21He got through the day, but ended up seeing his general practitioner, Dr Bashour, at Seaport Medical Centre (“Seaport”), the following day. Dr Bashour organised an ultrasound the following week.
22The plaintiff was referred to orthopaedic surgeon, Mr Mitra, whom he first saw on 5 February 2019. Mr Mitra felt the plaintiff was suffering from an impingement syndrome, and organised an MRI scan. A cortisone injection into the subacromial bursa was performed on 21 February 2019. It gave the plaintiff only temporary relief of his right shoulder symptoms.
23Mr Mitra operated on the plaintiff’s right shoulder on 8 April 2019, performing a subacromial decompression, acromioplasty, biceps tenodesis and open acromioclavicular joint excision (“the surgery”).
24Post-surgery, as at mid-July 2021,[10] the plaintiff had seen Mr Mitra about half a dozen times. Dr Bashour was then certifying him fit for restricted duties only, and he remained in receipt of weekly payments. His employment had been terminated by the defendant, effective 6 March 2020, on the basis he was not fit for pre-injury duties.
[10] First affidavit sworn 15 July 2021
25As at July 2021, the plaintiff thought there was certainly no way he could do his pre-injury duties, which were hands-on. He had never done a desk job and had always been a nuts and bolts type of person, and did not know much about computers.
26He complied with the insurer’s rehabilitation provider’s attempts to get him back to work, lodging a few applications, including for jobs as a machine operator with an earthmoving business, but even if he was successful in getting that work, he did not know how he would cope long term, given his right shoulder pain and restrictions.
27Moreover, most of the applications had then been put on hold due to the Pandemic. He had also put his name down to do a Stop and Go course, although, even if he finished it, he thought work would be most difficult for him to constantly and repetitively pull out road signs and witches’ hats.
Pain
28As at mid-2021, he continued to suffer from ongoing shoulder pain with reduced arm movement. He had suffered from significant loss of strength in his right arm and, his left shoulder had started to ache, as he over relied on his left arm. He also continued to suffer from residual right knee pain.
29His right shoulder pain affected his ability to sleep, particularly if he rolled onto his right side. Sometimes, at night, he took Codalgin Forte to manage the pain.
30There has been no improvement in his shoulder condition, if anything, it is perhaps a bit worse, especially in terms of ongoing pain. He continues to experience right shoulder pain, which is made worse with activity. Movement is also limited, and it is particularly difficult to lift his right arm above shoulder height.[11] His right arm remains weaker than it used to be, and he continues to have difficulty sleeping, particularly if he rolls onto his right side.
[11] Second affidavit sworn on 19 July 2022
Daily and recreational activities
31In both affidavits, the plaintiff described the significant impact his shoulder injury had had on day-to-day and recreational activities including jet skiing, motorbike riding and clay shooting. He had put on weight due to inactivity. He had difficulty using certain power tools, he could drive only short distances and required assistance with lawnmowing. He could undertake light household duties. His social life was very limited due to reduced finances. He had increasing difficulty with his left shoulder because of his increased reliance on it.
32The plaintiff and his wife have only recently moved house as their previous house was sold by the landlord. He had assistance with the move from family members as he was not able to help with the heavier stuff.
33The plaintiff ‘s involvement in fishing became a credit issue in this application. In June 2021, he was still able to fish. Although he had only gone fishing a few times since the incident, it was difficult for him to continually cast using his right hand. He recently deposed that he still tries to go fishing, although due to his difficulties with casting and reeling, he has purchased an electrical reel, which makes it easier.
34He was cross-examined about his fishing activities. He goes fishing in the ocean in his 5-metre central console aluminium boat which he keeps in storage at Portland. He goes fishing when the weather is good. In the winter, he might be lucky to go once a month – in the summer, maybe a couple of times a fortnight.[12]
[12] T19
35Having taken the boat out of storage, he puts it on a trailer, takes it off the trailer at the water and after fishing, puts it back on the trailer.[13] A lot of the process is mechanical and does not require force.[14] He has two electric fishing reels that he does not have to wind up and just pushes a button. He does not have to cast, and just puts the line straight down when fishing for flathead or whiting.[15]
[13] T20
[14] T21
[15] T24
36He has to fill the boat with petrol, at the service station. This involves undoing a little cap on the side and putting the nozzle in and filling it up – same as you would with your car. The petrol cap is not that much higher up. He agreed that he would fill the boat with his left hand because he could not do it with his right.[16]
[16] T22
37The plaintiff was then shown film of him at a service station filling up the boat on 13 May 2022 at 8.17am. He agreed he was putting in petrol with his right hand.[17] He could let go of the nozzle because the petrol was dribbling in and only goes in really slowly. His right arm was not above his shoulder. He was then shown using a squeegee with his right hand.[18] Later, he was shown putting his boat in the water and taking it out and putting it back on his vehicle after he had been fishing.[19]
[17] T22
[18] T23
[19] T24
38He thought he was not using his right arm above his shoulder height, while putting in petrol. It was level with his shoulder, but not above. When he was reminded he had earlier said he would not use his right hand to put in petrol, he demonstrated he could lift his hand up to about shoulder height. Sometimes his right arm hurts too much to put in the petrol “but sometimes I must’ve”.[20]
[20] T25
39At one stage in the film, he was shown eating a sandwich, probably in his left hand. In general terms, he was using his left hand predominantly in the film.[21]
[21] T44
Current treatment
40He has not been referred back to his operating surgeon and has not had any shoulder treatment apart from pain medication prescribed by his general practitioner.[22] He is currently taking the anti-inflammatory, Mobic, on a daily basis for pain, and also Panadol, on average, about two or three times per week.
[22] T17
Courses and training
41Training/courses completed by the plaintiff include fitters certificate, diesel mechanic apprenticeship, forklift licence, boom lift licence, white card, confirmed space/working safely at heights, dogman qualifications, elevated work platform, polypipe welding certificate, appollo root cause analysis, hydraulic and pneumatic qualification, heavy combination licence, marine safety induction card, motorcycle and boat licence.[23]
[23] Rehab Management Vocational report dated 16 March 2020
42Some of the courses undertaken were day courses.[24]
[24] T33
43His elevated work platforms, dogman, forklift and boom lift licences have expired. They are now only good for three or four years. He was about to renew these licences when the incident happened. He has not used his diesel mechanic skills since he became a fitter, over eighteen years ago or so.[25]
[25] T5
44He has never undertaken an OH&S course. A full course goes for a week. He thought he would have problems with the computer component of the course. He has not thought of doing a computer course. He “did not know” if future work involved computer skills that he should go out and get some.[26]
[26] T33
45At one stage, he thought there may be TAFE work that would suit him. He considered undertaking a two-year Certificate IV in Assessment for diesel mechanics. There is such a course at Portland TAFE, but he was advised when he phoned that they do not run courses to qualify people in this trade. The TAFE sends trainees to Sydney or Melbourne.[27]
[27] T27
46Over and above that, he is not very good with computers, and does not know whether he would be able to work in training and assessment. While he has trained apprentices in the past, he has never actually been a teacher in a classroom.
47The Certificate IV course is available online, but his computer skills are not very good, so he would even have trouble doing that. He does not play with computers. He has nothing to do with them. His computer skills are virtually non-existent. He can push the button to turn one on, but would not know where to go from there. He has used a computer but only very minimally, and does not know how to send an email.[28] He does not have an email address. His wife does, and sometimes she just gets him to look at things on the screen.[29]
[28] T29
[29] T30
48He did not know whether there was actually a course he could attend at Portland TAFE because he did not enquire any further when he was told there would be no one there to teach. He only asked about being a diesel mechanic.[30] He did not feel as though he would have been confident to teach fitters. He did not know whether he could teach a Certificate II or III.[31]
[30] T30
[31]T31
49He did not know if he would have to do another course to be able to teach at the TAFE. As far as he knew, with his trade qualifications, once you had undertaken a Certificate IV you would be qualified to teach.[32] He only enquired about diesel mechanic teaching, not about other trades in which he was experienced.[33]
[32] T28
[33] T29
Recent work
50He could not remember off the top of his head, but agreed that since his injury, before the Pandemic, he had applied for some jobs. He was booked in to do a traffic controller course and the Pandemic caused it to shut down. He agreed that it was only recently that he has been able to start getting back to doing some work.[34]
[34] T27
51His brother-in-law runs a mechanical workshop, Bill Storer Motors, which sells aftermarket products, and was looking to expand the business of installing these products.
52The plaintiff started casual work at Bill Storer Motors on 2 July this year or the week before. He was paid $27.15 per hour for the two weeks he worked.[35] One week, he worked 8 hours and the other week, 5 hours. He has not been back since as his brother-in-law has not had the work.[36]
[35]He was not paid the casual loading of $6.79 per hour
[36] T10
53In this job, the plaintiff was working with mudflaps, bull-bars, and similar items. He did not lift these items because of his shoulder. Other guys did that. In any event, one man would not put a bull-bar on by himself. It would be at least a two-man job.[37]
[37] T9
54Some accessories such as roo bars were simply too heavy for him. He had help from other workers, who lifted the bar into place, and he simply put on the bolts. Other accessories, such a mudflaps, were obviously a lot easier for him to handle.
55He also found it difficult to install accessories on cars that are on hoists due to the overhead work and, invariably, he had to have the car lowered to make it more manageable for him.
56The work was hit and miss, and he thought his brother-in-law was really just helping him out because he knew of his financial difficulties. The plaintiff certainly did not believe he would be able to work on a full-time basis in that role.
57He therefore lined up another job with a company, C3 Forestry Victoria (“C3”) – a very large operation – through the employment agency, Quest. He had to complete forms disclosing his injury.
58He started work on 27 June 2022. He works in a little shed in the Portland workshop. His current job involves sharpening chipper blades. The blades are approximately 250 millimetres x 40 millimetres x 6 millimetres, each weighing about 400 grams each. There might be about a dozen in a box, and he is required to pull one out at a time and put it into a jig, clamp the blade down, and the jig then sharpens the teeth. He then has to place the blades back into a box.
59He is the only one on the job, which is part time. He does enough blade sharpening in the two days that keeps the company going for the rest of the time. He works 7.00am-3.30pm. He has been continuing to work sixteen hours a week since 27 June, two 8-hour days.[38]
[38] Payslips indicate that he is earning $28.50 per hour
60Although he is only working these hours, “it is something, but nothing like [he] was earning previously” when, in 2018, he was being paid $35 an hour and the base rate for that work is now is about $40.
61The work at C3 is all done in front of him, sitting down or standing up, but nothing over shoulder height. It is just on a bench which is no higher than the machine – about waist high. He tends to stand doing the job, but he could sit if he wanted to.[39]
[39] T12
62Each day at work, he gets pain by the end of the day and gets very worn out from it. He takes medication at night for the pain, but not during the day, because the painkillers make him drowsy.[40]
[40] T17
63He is able to lift his right arm and elbow above shoulder height or close to it. He agreed that he avoided putting his right arm or elbow up to shoulder height because it hurt, and he would not hold his elbow at that level and do anything.[41]
[41] T18
64He remains concerned about his employment capacity in the future.
Suggested roles
Sales assistant
65He could not operate a till and had never tried. When it was suggested that a sixteen-year-old could do so, he responded that they “can play with computers and everything else”. It does not mean that he can. This job would involve more than operating a till. There would probably be ordering. There would be something to do with computers – “Everything nowadays is computers”.[42]
[42] T32
66He is not illiterate, and he can read and write. His numeracy skills “are not fine”. His spelling is atrocious. He did not know whether he could be a sales assistant at Bunnings or somewhere like that. He would have to look at the scope of the work that is involved. He has not looked into it. When it was suggested that it might have been because he was too busy with other health issues to get work, he responded “well I have got work two days a week”.[43]
[43] T32
Spare parts interpreter
67There are other things besides computer skills in most jobs that he may not be able to do. Depending on the job, he would have to go and find parts and the numbers on the computer, and find where they were on the shelf.[44]
[44] T33
68If there was a job with no computer skills, he would “have to see what’s in the scope of work, in case there was any heavy lifting of boxes, or anything like that”.[45]
[45] T34 -T35
69He has generally been told by doctors 4-5 kilograms is the lifting limit with his right arm, and he cannot do anything above shoulder height as that gives him a lot of pain.[46] A dull pain at times will get worse if he does “lifting and stuff”. His shoulder pain just sitting in the witness box was about one out of ten.[47]
[46] T34
[47] T35
70He agreed that with correct training, he could probably work as a spare parts interpreter as he is a diesel mechanic by trade and knew what was on spare parts for vehicles.[48]
[48] T39
71He confirmed that as a spare parts interpreter the parts would be on shelving “out the back”. He would have difficulty in fitting a part of any sort of weight from a high shelf. He had had difficulty getting things from above shoulder height.[49]
[49] T42
72He had done manual practical work of a very heavy work nature before the incident with a range of employers. None of that was selling work or anything like that. He did not like the general public, so he would have difficulty in the suggested jobs.[50] He has never had a job where he has dealt full time with the public face to face.[51]
[50] T44
[51] T43
Service station attendant
73He did not know whether he could do this job. A lot of time in that job it is not just on the till serving people. Stacking the shelves would be an issue, and he would have to make sure that he did not need to lift anything greater than 5 kilograms or not do anything overhead.[52] If those restrictions could be accommodated, he probably could do that job, subject to being trained on how to operate a till. It would be a similar situation in a sales job.[53]
[52] T35
[53] T36
Bus driver
74He could not work in this role because he does not get on with children. He would not want the responsibility of other people’s children if something happened. He would have to see what was involved in the job. He still had to get in and out of the bus and help people.[54]
[54] T36
75He agreed that he could deal with his boat quite happily but maintained that he could not drive a bus, as he does not have a licence.[55]
[55] T37
76He would probably not be able to do bus driving work without taking any painkillers, and that would be an issue with safety because they would make him drowsy.[56]
[56] T43
Forklift driver
77He had done this job in the past before his shoulder injury, but now he would have trouble getting in and out of a forklift because you had to put your right arm up, and hang on to the grabrail to hop in and out. He could not do that with his left hand and hop in with his left side.[57]
[57] T37
Store person
78Working in this role in a storeroom, he would need to able to operate the computer to find where the goods were. He agreed he could pick and order what was printed out – “A scope of work is that many different things that relate to it”.[58]
[58] T39
Delivery driver
79He could not do this job. Even as a pathology courier, after he drove for a couple of hours, he gets a lot of pain in his shoulder. If he took painkillers, they made him drowsy. He did not know whether he could do that job. He “needed to have a scope on it”. He had not seen the scope of work on the job that is actually required.[59]
[59] T38
Maintenance supervisor
80He had done some supervisory work for the defendant. He agreed it was a job he could do, but there needs to be availability of these jobs to be able to do so.[60]
[60] T39
81In re-examination, he was taken to the job description for a maintenance supervisor role which included developing schedules and planning strategies for the upkeep and maintenance of all plant and equipment. He had never had a job like that. He did not have any degree or diploma that was required.[61]
[61] T42
82He has not looked for full-time work for a little while. He has had health issues and “other stuff going on”. After working two days a week, his shoulder gives him “that much grief it is not funny; You wanna come to my place and see me in tears at night coz of me shoulder’s in that much pain”.[62]
[62] T38
83He denied he was not working more because of his other health issues. If C3 had more work, he would not be able to do it.[63]
[63] T38
84He got the C3 job on his own and did not need help from anybody, so he had not just sat around doing nothing for the whole time.[64] He is “having a go” to see how much his shoulder can stand up to:
“… and if it – if it is still quite where I think it’s more, well, I’ll --- some more. But if it comes – gets to a point where I – I think I can do more well that’s what I’m gonna do. I [in]tend to get back to work fulltime permanent. I could but it - it’s - times gonna tell, I don’t know.”[65]
[64] T39
[65] T40
85He agreed it was too early to tell. When it was suggested that it was still early days, he said it would be five months now back to when he had tried to get back into the workforce. He agreed it was too early to tell and “we’re not gonna know how it’s gonna play out yet”, having only worked a couple of months for two days a week.[66]
[66] T41
Prostate and other health issues
86Late 2020, early 2021, he became aware of prostate problems, and he started seeing urologist, Dr Putra. He agreed that was pretty worrying from his perspective and it became the thing he had to deal with. He had had twenty biopsies under anaesthetic on one occasion. He then had to go back and see Dr Putra. She told him there were “nasties there, seven out of ten”, when the biopsy was done in March 2021, and a decision was made to operate.[67]
[67] T13
87From the diagnosis until surgery, “the nasties” had grown into a 30-millimetre tumour and started to break out, so he had a radical prostatectomy in September 2021.[68]
[68] T13
88After that procedure, he lost about 5 litres of blood and required a transfusion. He then could not wake up in recovery and it took him a while to come around. He spent two days in ICU.[69]
[69] T14
89He continues to have some difficulties with his prostate issue. He had to self-catheterise until March of this year.[70] Following the prostate surgery, his PSA levels had gone down to virtually unreadable, which was what the specialist wanted. A few weeks ago, he had a regular blood test and was told his PSA level had risen and there was a possibility they may not have got all of the cancer. He will need chemotherapy or radiotherapy if his PSA levels continued to rise. He has another blood test in about two months. If that comes back with any higher reading, he will have to look at further radiotherapy or chemotherapy.[71]
[70] T14
[71] T15
90He agreed that, with that situation, he presumably cannot even think about doing any more work than two days a week.[72]
[72] T15
91He also agreed that he had had problems with kidney stones which required surgery. They were only able to get one piece out, and he was able to pass the other bits some weeks later.[73]
[73] T15
92He has recently had some problems with pitting oedema in his legs, which is still under investigation. There is no pain, just fluid. That had only seemed to have appeared since he returned to work.[74]
[74] T16
93He has problems with sleep apnoea and may need to have some sort of sleep test in the future – “that had sort of taken a backseat with all the other stuff going on.”
TAXATION SUMMARY
Year
Employer
Amount
2015
Kempe Services Pty Ltd
$8,462
2016
Kempe Services Pty Ltd
$74,715
2017
Kempe Services Pty Ltd
$72,845
2018
Kempe Services Pty Ltd
$81,987
2019
Kempe Services Pty Ltd
$88,744
(including weekly payments)
2020
Kempe Services Pty Ltd
VWA
$76,258
$21,331
Total: $97,589
2021
$57,277
2022
Pearlcombe Pty Ltd
Gallagher Bassett Services
Jobseeker payments
Construction & Building Union Superannuation
$325
$2,256
$9,856
$7,688
Total: $20,125
Treaters
Dr Bashour, Seaport
94The plaintiff first was seen on 8 November 2018 for his right shoulder injury.
95In his August 2022 report, Dr Bashour simply stated he thought the plaintiff was fit for suitable duties. He was not sure of the plaintiff’s prognosis, and suggested that be discussed with his treating surgeon, Mr Mitra.
Mr Aniruddha Mitra, orthopaedic surgeon
96Mr Mitra most recently reported in June 2021.
97The plaintiff was referred to him in November 2018, following a right shoulder injury at work. Since that time, the plaintiff had been complaining of pain, especially with overhead activities, in his right shoulder and weakness in his arm. He was commenced on physiotherapy by his GP without much benefit.
98There was a right shoulder ultrasound on 15 November 2018. Clinically, the plaintiff had suffered subacromial bursitis and weakness in his supraspinatus and subscapularis. His MRI scan confirmed degenerative changes in his AC joint, with subdeltoid bursitis and insertional tendinosis of the supraspinatus, subscapularis and the intraarticular longhead of the biceps.
99On 8 April 2019, an arthroscopy bursectomy and subacromial decompression of the right shoulder, and subpectoral biceps tenodesis was performed, together with an open AC joint excision.
100Mr Mitra thought the tendinosis, as well as subacromial bursitis, was probably related to the injury. The plaintiff’s heavy work duties could have been a contributing factor to the development of AC joint arthrosis, as well as his tendinosis.
101As at June 2021, the plaintiff had symptoms of early fatigability in his shoulder and difficulty with any repeated activities. He had also recently been diagnosed with prostate cancer, which was probably affecting his wellbeing and may have contributed to a worsening of his symptoms.
102Taking into account the plaintiff’s current situation, age, education, work and skill experience, Mr Mitra thought he does have the ability to perform alternative duties which do not involve heavy repetitive lifting with his right shoulder.
103A transferable skills analysis performed by Ms Amy Rogers from Rehab Management, had outlined alternative employment options: forklift driver, delivery driver, traffic control, park ranger, store person and general labourer.
104Mr Mitra thought the plaintiff may be suitable for work as a store person, a traffic controller or forklift driver. He did not think he would be suitable as a delivery driver, park ranger or general labourer, as it would involve heavy repeated lifting with his right shoulder.
105Given the plaintiff’s current diagnosis of prostate cancer and the worsening of right shoulder symptoms, he would be better off to rest his shoulder for a while, until his medical condition stabilised. He can, thereafter, try to seek alternative employment options, either part time or full time.
106Mr Mitra planned to investigate the plaintiff’s worsening shoulder symptoms in the near future, after he had a definite treatment plan organised for his prostate cancer.
Investigations
107Following an ultrasound of the right shoulder on 15 November 2018, it was reported there was supraspinatus tendinosis with a full-thickness tear of the posterior tendons. There was tendinosis of the subscapularis tendon with no associated tear. Normal appearance of the infraspinatus teres minor and long head of biceps tendons. There was a thickening of the subacromial subdeltoid bursa, consistent with bursitis.
108There was a right shoulder x-ray on the same date, following which it was reported there was no bone or joint pathology demonstrated, no soft tissue calcification, or other specific evidence of rotator cuff pathology.
109The plaintiff had an MRI scan of the right shoulder in February 2019. The clinical history was noted to be “? rotator cuff tear with impingement”. It was reported there was inferior angulation of a Type 1 anterior and an acromion reducing the acromio-humeral distance to half a centimetre. There was moderate AC joint degenerate change with mild subdeltoid bursitis. There was mild insertional tendinosis at the supraspinatus and subscapularis. There was no focal, partial or full-thickness tear, retraction of tendon fibre or muscle belly atrophy seen. There was mild tendinosis of the intraarticular long head of biceps as it exits the joint. The extraarticular long head of biceps was within normal limits.
Medico-legal evidence
Mr Roger Westh, orthopaedic surgeon
110Mr Westh first saw the plaintiff on 1 December 2020.
111The plaintiff then reported his main trouble was ongoing weakness in the right shoulder and pain, particularly in the biceps. He described a deep-seated discomfort, saying the pain was worse with lifting, and he had trouble elevating his arm.
112The plaintiff said he would be unable to go back to his original job because of heavy machinery work. He was limited in his sporting and domestic activities.
113Mr Westh noted the plaintiff is a qualified diesel mechanic and has minimal computer skills and no other formal qualification.
114On examination, there was some slight deltoid wasting. The plaintiff was tender over the anterior aspect of his shoulder and also of the long head of biceps. He had a palpable and tender gap in the AC joint. He had a painful restricted range of movement. His biceps muscle was noted to be lower on the left, consistent with his biceps tenodesis. Impingement testing was negative, and he was noted to have weakness of external rotation and abduction.
115There were no investigations provided.
116Mr Westh thought it likely the plaintiff sustained a soft tissue injury to his right shoulder, with a resultant impingement syndrome. He failed to improve with conservative treatment and was then treated surgically. There had only been slight improvement following the surgery and he had ongoing and particularly activity related pain and restricted right shoulder movement.
117As a consequence of the physical injury and impairment of the right shoulder, the plaintiff was restricted significantly in relation to employment or related activities, and that incapacity would continue into the foreseeable future. He would not be able to do any work which involved heavy lifting or repetitive overhead use of his right shoulder.
118As a consequence of his physical injury and impairment, the plaintiff has a limited future work capacity and would only be capable of working in a supervisory capacity, but he did not have any formal qualifications. As a result of his injury and impairment, he was restricted in relation to social, domestic and recreational activities for the foreseeable future. He continued to experience ongoing activity related right shoulder pain with an associated restricted range of movement.
Dr Joseph Slesenger, occupational physician
119Dr Slesenger examined the plaintiff on 2 December 2020 and 26 May 2022.
120On examination, there was wasting over the deltoid, tenderness over the AC joint and restricted shoulder movement.
121Dr Slesenger thought the plaintiff had been left with anterior residual anterior right shoulder pain located mainly in the anterior shoulder and superior aspect of the shoulder, and severe restriction to range of shoulder movement.
122Dr Slesenger then diagnosed a soft tissue injury and AC joint arthropathy of the right shoulder, together with a rotator cuff tear, for which the plaintiff had undergone surgery. He also had chronic right shoulder pain with evidence of adhesive capsulitis.
123On the basis of the plaintiff’s residual impairment, Dr Slesenger suggested the following restrictions – no push, pull, carry or lift over 5 kilograms, no sustained forward reaching, no over shoulder reaching, avoid repetitive upper limb tasks, avoid safety sensitive tasks, limited driving to an hour and no climbing of ladders.
124He thought the plaintiff could not return to his pre-injury role, given the manual handling and postural demands associated with it. He did not anticipate an improvement of the plaintiff’s symptoms in the foreseeable future, noting the complexity of the injury, poor response to surgery and, also, a number of negative prognostic indicators, including his age, current job detachment and his psychological comorbidity.
125On the basis of those factors, together with the medication side effects and limited computer skills, he thought the plaintiff was unlikely to be able to return to work performing suitable alternative duties on a consistent and reliable basis.
126He had given careful consideration as to whether the plaintiff could return to work in a supervisory role as a fitter and turner – maintenance technician. While he may have the physical capacity to manage a maintenance shutdown, he also thought the plaintiff was likely to have difficulty travelling to and from work locations and had concerns as to his reported medication side effects and the impact of those on safety sensitive tasks.
127Taking the evidence as a whole, he thought the plaintiff was unlikely to return to work performing suitable alternative duties on a consistent and reliable basis and, therefore, recommended he be referred to a pain specialist to address his pain control, which appeared to be suboptimal. He then thought the prognosis must be guarded.
128On re-examination in May 2022, the plaintiff described residual right shoulder pain, which was moderate to severe. He had severe restriction to range of shoulder movements and continued to have difficultly forward reaching and reaching his backside, and lying on his right side. Since last seen, there had been no change in his symptoms.
129Dr Slesenger had been provided with a vocational assessment report from Workable Consulting recommending the following roles as suitable: pathology collector; spare parts interpreter; retail assistant (hardware, hydraulics and bearings); forklift operator (frequent light up to medium physical demands), and supervisor - maintenance (light to medium physical demands).[75]
[75] While listing these suggested jobs, Dr Slesenger did not comment on them
130He confirmed his earlier diagnosis and the earlier work restrictions he had suggested.
131However, he also thought that, taking into consideration the plaintiff’s current symptoms, functional limitations, his past employment history, his qualifications, his age of fifty-four and his residential location at Portland, he was unlikely to be able to return to a role for which he had suitable training and experience on a consistent and reliable basis.
132With regard to the plaintiff’s current alternative work considerations, as a TAFE teacher, he thought the plaintiff was unlikely to be able to return to work in performing suitable alternative duties on a consistent and reliable basis. In particular, he was concerned that the manual handling tasks were likely to lie outside his capacity limits.
133He advised the plaintiff against returning to work as a truck driver, as he was unlikely to be able to return to work consistently and reliably, and, at that stage, may not meet the medical and commercial driving standards due to his sleep apnoea, medication and side effects. He was also concerned that the manual handling tasks would lie outside the plaintiff’s capacity limits and he was unlikely to be able to return to work consistently and reliably.
Mr Robert Wood, orthopaedic surgeon
134Mr Wood examined the plaintiff in June 2022.
135The plaintiff told him he had just started working very light duties for a local mechanic for four hours a week in light repairs. He may be starting a job shortly, which involves the sharpening of lathes used in forestry, which he was hoping to do two days a week and it involved positioning of lathes for sharpening in a sharpening machine. It was a relatively low demand occupation.
136The plaintiff reported still having ongoing problems with predominantly anterior pain which ached, particularly after activity. He also had disturbed sleep because of pain.
137On examination, there was some limitation of movement, and impingement signs were mildly positive. His biceps region was exquisitely tender. This could be a tendonitis through subscapularis clinically. The rotator cuff strength was mildly reduced with supraspinatus, but also mildly reduced with subscapularis. The biceps tendon was not functional, so there was significant bunching of the longhead of the biceps at the elbow, consistent with full tendon failure.
138A 2019 MRI scan showed the rotator cuff was still intact, but the biceps tenodesis had failed, with no tendon up to the tendinosis point.
139Mr Wood diagnosed rotator cuff tearing through supraspinatus and biceps tendinitis of the affected dominant right shoulder.
140As a consequence of the physical injury alone to the right shoulder, there are significant restrictions in the plaintiff’s ability to work. Significant weakness and discomfort, particularly with above shoulder activities, means the plaintiff cannot really work at or above shoulder level with that right dominant hand and, therefore, any heavy lifting or repetitive pushing or pulling would also be excluded for the foreseeable future.
141The plaintiff has no ability to perform his pre-injury duties for the foreseeable future.
142With respect to his ability for suitable employment, the plaintiff had found one role which he is able to undertake, but only for four hours a week, and he is hoping to do it for two days a week. This is still not full-time work, and in a significantly less skilled role, but these are duties he should be able to undertake, at least part time, permanently.
143Thus, he would consider the plaintiff to at least have capacity for part-time work, as long as that is restrictive with respect to the shoulder being used at or above shoulder level, and a repetitive nature, particularly with pushing and pulling. This situation was permanent.
144There was some significant impairment with respect to social, domestic and recreational activities.
145He suggested a cortisone injection, before which he would scan the shoulder, most specifically with an MRI scan. He thought the prognosis was reasonably guarded, noting the plaintiff has ongoing issues with weakness through the shoulder.
146There was a possibility of further deterioration which could result in osteoarthritic change in the shoulder necessitating a replacement. This is not an expectation, but a significant risk. In short, he did not expect the shoulder to improve significantly, but it may well deteriorate.
Vocational evidence
147Bill Radley, psychologist and vocational assessment specialist, carried out a vocational assessment of the plaintiff online in February 2021.
148In summary, he thought the plaintiff had no capacity to return to his pre-injury or similar occupation, now, or in the foreseeable future.
149The plaintiff had no capacity to return to any type of alternative employment for which he currently had the necessary skills, training and/or experience.
150However, he thought the plaintiff had the ability to participate in an occupational retraining course. Further, the plaintiff seemed to have some potential for employment in the future, but only if he could complete an appropriate course of occupational retraining.
151He thought the plaintiff was likely to have a capacity for full time or part time employment only after he completed a course of retraining.
152He thought the plaintiff had basic computer skills noting he can use the internet and email
153He considered the plaintiff seemed to have some potential for future employment in occupations such as a TAFE trade teacher, sales assistant (trade or equipment rental), OH&S officer, service station attendant or school bus driver.
154The type of occupational retraining required, included a short TAFE industry course to gain qualifications for employment as a sales assistant, trade or equipment rental, service station attendant or school bus driver (minimum of about six months part-time study) or a vocationally directed Certificate III or IV TAFE level course (minimum of twelve to eighteen months of part-time study) to gain the necessary qualifications for employment as a TAFE teacher or OH&S officer.
155He thought it likely to take the plaintiff at least six months, and up to twelve, to complete the level of occupational retraining necessary to obtain employment with one of the occupations suggested.
The Defendant’s medical evidence
Medico-legal
Dr Catherine Bones, occupational physician
156Dr Bones first saw the plaintiff in August 2019.
157He told her he had been progressing to date, although he felt he had now plateaued for a period. He described pain when trying to sleep, particularly if he lay on his right side. He experienced aching in the anterior aspect of the right shoulder and sometimes pain on movement, particularly adduction or internal rotation.
158On examination of the right shoulder, there was no obvious muscle wasting. There was tenderness over the anterior aspect of the shoulder.
159She diagnosed an impingement disorder of the right rotator cuff , a SLAP lesion of the right shoulder and an aggravation of acromiclavicular joint arthritis.
160The plaintiff had not then returned to work as there were no suitable duties. He had a return-to-work coordinator. He explained that he was keen to return to work. However, he wished to follow his surgeon’s instructions. He was then having monthly physiotherapy, taking Mobic and the occasional Targin.
161The plaintiff was then approximately four months post-surgery. Dr Bones then thought that he would be unsuitable to undertake his pre-injury duties for at least the next two months. A return to work suitable duties plan dated 18 March 2019 was unsuitable.
162In her view, the plaintiff appeared motivated in his physical rehabilitation and was ready and willing to return to work at the appropriate time.
163Dr Bones re-examined the plaintiff on 30 November 2021.
164She then confirmed the plaintiff was certified as having a capacity for suitable employment and had been looking at his work options. He explained the Pandemic was a barrier in applying for jobs, and that some three months ago, he was diagnosed with prostate cancer, undergoing surgery nine months earlier and complicated by a haemorrhage. He acknowledged that he had been focusing on his cancer diagnosis and follow-up and had found it difficult to consider employment options.
165The plaintiff complained of a constant discomfort in the right shoulder associated with intermittent pain worse on movement – the majority of his pain being over the anterior aspect of the right shoulder and upper right humeral area.
166Dr Bones noted the treating surgeon’s June 2021 report.
167The plaintiff told her that he can use a computer for Googling and reading emails, but did not frequently reply to emails.
168He told her that he no longer rode a motorbike or operated a jet ski, and performing domestic tasks increased his shoulder pain. He had purchased an electric reel so he could still do some fishing.
169The plaintiff was not currently working in any capacity, barriers having been the Pandemic and recent prostate cancer surgery.
170On examination, she observed some mild wasting of the musculature, a significant reduction in the range of movement, particularly use of the right arm at or above shoulder height, and tightness in the right upper trapezius muscle – most likely the cause of the plaintiff’s right-sided neck pain.
171She thought the symptoms seemed to be relatively unchanged from the previous examination, although the plaintiff noted he was sleeping better than previously.
172The plaintiff was not suitable to return to his pre-injury employment and had a capacity for suitable employment.
173She was asked to comment on a range of jobs identified in the vocational report.
174She thought the plaintiff’s capacity to undertake work as a forklift driver would, in part, be determined by the type of forklift. He would require assessment as to ability to safely access a forklift and his ability to undertake its operating mechanism of it.
175Typically, the role of delivery driver required loading and unloading. As such, the plaintiff’s suitability for that role would depend on the loads required. She considered he could undergo a trial as a delivery driver, provided the deliveries undertaken were local rather than long distances.
176Noting that the role of park ranger required physical construction and maintenance of trucks, huts or signage, and occasional requirement for lifting, carrying or pulling on sites to remove fallen trees, lift construction materials, tools and equipment, she considered it was outside the plaintiff’s current physical capacity.
177In her clinical opinion, the plaintiff did not have the current physical capacity to set up the road with signs and witches’ hats, which involved frequent manual lifting.
178His capacity for storeperson work would be site and task-dependent, as he was not suitable to undertake heavy or awkward manual handling.
179In her clinical opinion, the plaintiff would be able to undertake full-time hours in any suitable employment identified once he had fully recovered from his prostate surgery. She also thought that with physical restrictions, including a maximum lift of 5 kilograms, he had a capacity to complete any necessary retraining.
Dr David Elder, occupational physician
180Dr Elder examined the plaintiff in February 2021.
181The plaintiff then described ongoing pain between three to five out of ten, which could vary with weather and activity. The plaintiff felt the strength in his shoulder was weak.
182On examination, there was some wasting of the supraspinatus, and there was longhead biceps abnormality.
183Dr Elder noted the plaintiff had thought of undertaking the Certificate IV but, as there were no local opportunities to work in that field, he did not think it would be worthwhile to do the course. As this was an AMA assessment, there was no opinion as to the plaintiff’s work capacity.
Vocational evidence
184Ms Amy Rogers from Rehab Management provided a Transferable Skills Analysis in March 2020.
185The training/courses completed about which the plaintiff was cross-examined were set out in that document.[76]
[76] See paragraph 102 of my Judgment
186Future employment options were listed as forklift driver, delivery driver, traffic control, park ranger, store person and general labourer.
187In terms of the traffic control management course, it was noted that the plaintiff had already completed his white card induction and had transferable skills and self-reported capacity to work in that section. He would be able to register with traffic management control companies, which could broaden his job options in the future.
188At that stage, Rehab Management were pleased to assist the plaintiff’s transition into job seeking services to assist him with all aspects of job-seeking. They proposed to communicate with him weekly, assist with resume and cover-letter development, canvas the local labour market for suitable employment options, and assist with applications for suitable roles. They would meet with the plaintiff in face-to-face meetings as part of the service.
189The Certificate of Capacity dated 18 March 2020, completed by Dr Bashour, set out the plaintiff then had a capacity for suitable employment with the following restrictions: “No lifting above 2 kilograms with right arm. No reaching above shoulder level.”
190The plaintiff was building strength post-operatively and would aim to increase his capacity in the future. A return to work case conference in the near future with the general practitioner was recommended, with the plaintiff to obtain recovery timeframes and approval of the vocational options suggested.
191The plaintiff reported that his shoulder would most likely get to around 80 per cent of pre-injury function, and that would be discussed at the next surgeon’s review on 24 March 2020.
192In September 2020, Ms Rogers completed an NES Labour Market Analysis Report.
193Identified suitable employment options in order of priority were forklift driver – $1,113 per week, delivery driver – $1,010 per week, park ranger – $1,779 per week, traffic controller – $1,224 per week, and store person – $1,052 per week.
194There was a further vocational assessment by consultant, Gary Greer, at Workable in May 2022.
195A medical certificate from Dr Bashour stated that the plaintiff is and has been unfit for work and/or study from 30 April to 30 July 2022.
196Mr Greer noted Dr Bones’ comments about the suggested jobs.
197The plaintiff reported no issues with sitting, standing or walking, and that he was able to drive for two hours before requiring a break. He could lift up to 5 kilograms with his injury, up to waist height.
198The plaintiff was recovering from prostate cancer and was unable to work in a physically demanding role. He reported that he had lifting restrictions.
199It was noted that in the plaintiff’s job with the defendant as a site coordinator/fitter, his duties included supervising staff, monitoring staff work, constructing structural components from raw materials, using a range of equipment, creating a suitable maintenance schedule and performing system maintenance accordingly, conducting diagnostic testing on malfunctioning systems to determine the root cause, replacing damaged or defective structural components, and adhering to all worksite safety rules and regulations.
200The plaintiff reported high physical demands in that and his earlier jobs. He advised he had very basic computer skills and was able to navigate the internet and send and receive emails.
201Based on the plaintiff’s reported employment and education history, Mr Greer identified the following transferable skills: good computer skills, analytical skills, ability to identify mechanical faults and repair them, motor mechanical experience, knowledge of vehicle hydraulic and mechanical parts, supervisory skills, scheduling experience, staff training skills, machine operating skills, basic computer skills and the ability to handle power tools.
202The plaintiff considered he would be able to complete a role such as a supervisor for maintenance as long as he would not be required to complete maintenance work himself. He reported that he would also like to work as a park ranger.
203Mr Greer identified four employment options that would not require the plaintiff to undertake additional training:
·light delivery, pathology – weekly earnings $1,140.
·spare parts interpreter – earnings not available.
·retail assistant, hardware hydraulics bearings – weekly earnings $1,055.
·forklift driver – weekly earnings of $1,286.
204Intermediate computer training was required to support the identified role of supervisor/maintenance. The duties included developing schedules and planning strategies for the upkeep and maintenance of all plant and equipment, and coordinating and monitoring the maintenance undertaken on all plant and equipment.
205It was noted, in terms of skill level, that an associate degree/advanced diploma, or at least three years of relevant experience, was usually needed. Even with the qualification, experience or on-the-job training is usually needed. Around two/three workers have at least a Certificate III or higher vocational education and training (VET) registration, or licensing may also be required.
206It was suggested that that job was suitable because the plaintiff had experience working as a supervisor on maintenance projects. Mr Greer considered that he had transferable skills to support this role. The plaintiff himself had reported that this type of role was what he would like to pursue in the future. Mr Greer considered the plaintiff would be required to undertake intermediate computer training to support the role.
207A Labour Market Analysis Report completed by Mr Greer on 12 September 2022 set out expected earnings of the employment options of spare parts interpreter, $1,214, and maintenance supervisor, $1,797.
Overview
208It is not in dispute the plaintiff suffered injury to his right shoulder during the course of his employment with the defendant. The diagnosis has included rotator cuff tear and impingement syndrome.
209“Seriousness” has been conceded in terms of pain and suffering.
210Having satisfied 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, he has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).
211The 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.
212The former must be calculated by reference to the six-year period specified in s325(2)(f).
213“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.
214It 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.
215The 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.
216The parties agreed the plaintiff would suffer the requisite 40 per cent loss if he was unable to earn in excess of $975 per week.[77] This figure was based on the plaintiff’s earnings of $84,602 for the 2019 financial year. 60 per cent of that sum is $50,761 or $976 per week.
[77]T10, T16
Findings
217Taking into account all of the evidence, the plaintiff has not established that on a permanent basis, he is unable to earn in excess of $975 per week as a result of his right shoulder impairment.
218His return to the workforce post injury has been delayed by both the Pandemic and also, his other significant health issue – prostate cancer, for which he underwent surgery in September last year. For reasons unrelated to the shoulder condition, he was kept out of the workforce until very recently.[78]
[78] T2
219The plaintiff agreed that, with his current prostate issue, he presumably cannot even think about doing any more work than two days a week.[79]
[79] T15
220The plaintiff told Dr Bones in November 2021, that the Pandemic was a barrier in applying for jobs, together with the diagnosis of prostate cancer three months earlier, with surgery complicated by a haemorrhage. He acknowledged that he had been focusing on his cancer diagnosis and follow-up and had found it difficult to consider employment options.
221In Dr Bone’s clinical opinion, the plaintiff would be able to undertake full-time hours in any suitable employment with physical restrictions once he had fully recovered from his prostate surgery. Further, she thought he had a capacity to complete any necessary retraining.
222The plaintiff’s first attempt at work was with his brother-in-law at Bill Storer Motor in June 2022, where he worked for only two weeks – one day of 8 hours one week and 5 hours the following week in the spare parts installation section.
223While it was submitted by counsel for the plaintiff this was “basically charity work”,[80] the plaintiff ceased work there because work was no longer available – not because of any issues with his right shoulder.[81]
[80]T18
[81] T3
224He then got the job at C3 where he currently works 8 hours a day, two days a week. The hours currently worked are what are required by C3 to produce the blades it needs.
225While I accept the plaintiff continues to experience shoulder pain at work and movement of his arm is restricted, it is still relatively early in the recovery process. In my view, the plaintiff’s ability to work has not been adequately tested at this stage. I do not accept that the plaintiff’s limited return to the workforce has made him “work hardened” as his counsel submitted. In those circumstances, I do not accept he has established the requisite loss on a permanent basis.
226Further, while the consensus of medical opinion is that the plaintiff is unable to return to his pre-injury duties, there is no evidence from the plaintiff’s treaters or any medico-legal examiner that he is working at his full capacity at the present time or into the future.
227The report from his current general practitioner does not detail any difficulties the plaintiff has with his current work. Dr Bashour simply stated in his report dated 3 August 2022 that the plaintiff is fit for suitable duties.
228Mr Mitra, orthopaedic surgeon, most recently reported in June 2021. He then thought, given the current diagnosis of cancer and worsening of right shoulder symptoms, the plaintiff would be better off to rest his shoulder for a while until the cancer stabilised, and thereafter, try to seek alternative employment options, either full or part time.[82]
[82] T3
229Further, Mr Mitra thought the plaintiff may be suitable for work as a storeperson, a traffic controller or forklift driver.
230Medico-legal examiner, Mr Wood, orthopaedic surgeon, saw the plaintiff only once in June 2022, before the C3 job. He is not an occupational physician, but he thought the plaintiff “at least” had the capacity for part-time work as long as there were restrictions with right shoulder use.
231Occupational physician, Dr Slesenger’s analysis, following re-examination in May 2022, was not particularly helpful. Although he then thought the plaintiff was unlikely to be able to return to work in a suitable role, this view predated the plaintiff’s return to work the following month. Further, Dr Slesenger did not comment on the jobs suggested, although he listed them. He then went on to discuss jobs the plaintiff had considered – TAFE teacher and truck driver – jobs which he thought the plaintiff would have difficulty with.
232Dr Slesenger did not consider the plaintiff’s potential for retraining as supported by vocational assessor, Bill Radley.[83]
[83] T9
233Further, I am not satisfied that the plaintiff has discharged the onus under ss(g) in relation to rehabilitation and retraining.
234Significantly, vocational assessor, Bill Radley, engaged by the plaintiff’s solicitors, thought the plaintiff had the capacity for retraining to be able to return to work in a number of roles when he interviewed the plaintiff in early 2021. No more recent report has been provided by Mr Radley. The plaintiff’s expert evidence therefore is that he can be retrained, not that he cannot.
235As counsel for the defendant submitted, Mr Radley’s report showed the plaintiff has a broad range of skills and qualifications and was capable of retraining or upskilling, ultimately leading to a capacity for full-time or part-time employment after he completes the courses of retraining.[84]
[84] T8
236If, after the retraining suggested by Mr Radley, working on a full-time basis in all the suggested jobs, the plaintiff would earn in excess of $975 a week.
237While a number of the jobs suggested are clearly unsuitable for the plaintiff on a physical basis, he does have a demonstrated capacity to do supervisory work – albeit not the particular role suggested by Mr Greer which required an advanced diploma.
238As set out in the May 2022 Workable Vocational Assessment, working with the defendant as a site coordinator/fitter, the plaintiff undertook supervisory work and monitored staff work in addition to a range of other duties.[85] The plaintiff told Mr Radley that he had experience as a supervisor, supervising ten to fifteen staff.[86]
[85]Paragraph [196] of my judgment
[86] T8
239Mr Westh considered the plaintiff was suitable for supervisory work but thought he did not have formal qualifications for this role.
240Further, in terms of any sales job, while counsel for the plaintiff submitted the plaintiff would have problems with interpersonal relationships with customers,[87] Mr Radley thought the plaintiff had a mild aptitude for work of a public contact nature.[88]
[87] T16
[88] T75
241The plaintiff does have some basic computer skills as noted by Mr Radley. It would not be difficult for him to learn to operate a till despite his reservations as young people are able to work operating cash registers at places like McDonald’s as counsel for the defendant submitted.[89]
[89] T9
242The plaintiff obviously retains effective use of his right upper limb as demonstrated on the film where he was able to put his boat in and out of the water unassisted. He also used his right hand to put petrol in the boat. He was therefore able to use his right arm in a number of ways and it cannot be said that his right arm is useless for work purposes.[90]
[90] T5
243I am not satisfied the plaintiff is presently working at his full capacity working 16 hours per week or that on a permanent basis, he would be unable to earn in excess of $975 per week. He is currently working the hours that are available, as was the case with the job with Bill Storer.
244Given his return to the workforce in only the last three months or so, I cannot be satisfied that any loss of earning capacity meets the requisite level of 40 per cent permanently, particularly in circumstances where vocational assessor, Mr Radley, considered after appropriate retraining, the plaintiff was likely to have a capacity for full-time or part-time employment. Mr Radley is an expert in the vocational field, and he reached this view, having interviewed the plaintiff, considered his work experience, his transferable skills, including his limited computer skills.
245Taking into account all the evidence, I am not satisfied the plaintiff has discharged the onus in this case, and his application for leave to bring proceedings for damages for loss of earning capacity is dismissed.
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