Van Den Vlekkert v PWB Anchor Limited
[2016] VCC 1080
•25 July 2016
All
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03862
| HENDRIK YONG VAN DEN VLEKKERT | Plaintiff |
| v | |
| PWB ANCHOR LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 July 2016 | |
DATE OF JUDGMENT: | 25 July 2016 | |
CASE MAY BE CITED AS: | Van Den Vlekkert v PWB Anchor Limited | |
| MEDIUM NEUTRAL CITATION: [First revision 26 July 2016] | [2016] VCC 1080 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the right shoulder – loss of earning capacity damages, pain and suffering conceded
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230; Acir v Frosster Pty Ltd [2009] VSC 454; Richter v Driscoll [2016] VSCA 142
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Ms G B Jardine | Adviceline Injury Lawyers |
| For the Defendant | Mr S Smith | Wisewould Mahoney |
HIS HONOUR:
1 Leave is sought by the plaintiff to bring proceedings for pecuniary loss damages arising out of an accident at work on 1 September 2011. It is a paragraph (a) “serious injury” application. The injury relied on is to the right shoulder of the non-dominant arm. Serious injury with respect to pain and suffering damages has already been conceded. The issue for the Court is whether or not the plaintiff has suffered a loss of earning capacity of 40 per cent or more.
2 The plaintiff is fifty-five years of age. His work history has generally been in physically demanding jobs of various types after leaving high school where he failed to pass Year 12. The plaintiff worked for the defendant for over 25 years. This was from August 1989 until November 2014, when he was terminated because his longstanding employer had no more restricted duties for him.[1]
[1]Court Book (“CB”) 6 – 10
3 The plaintiff has an impeccable work record. This work history is remarkable for an unskilled man when the work histories of injured plaintiffs are evaluated sitting in this jurisdiction virtually daily. His full-time work record has been achieved in the face of a number of extremely significant health issues.
4 In his mid-20s, he was involved in a very serious motorcycle accident. He suffered head injuries as well as injuries to his left ankle and right leg that required him to be an inpatient at the Austin for about three months. He then spent about four months at the Royal Talbot doing rehabilitation work. He came out of all of that with a fused left ankle. I also accept his evidence that the head injury has given him memory problems that he has carried over the last thirty or so years. In 2004, he had a fall whilst working and fractured his kneecap in three places. In 2005, he had a fracture of his right big toe.
5 On 30 March 2006, his right lower leg was crushed between a machine and a pallet. He has suffered ongoing right lower leg symptoms to the present time and it is a degenerative condition that appears to be unfortunately deteriorating as the years go on. For that right lower leg injury, he was granted a serious injury certificate for pain and suffering damages. The defendant has relied on that leg problem in its defence to this application for leave to bring proceedings for pecuniary loss damages with respect to the subject right shoulder injury.
6 I am satisfied on all the evidence that despite all these past problems and the ongoing difficulties described, including the fused left ankle combined with a degenerative condition in the right lower leg, this man, having stayed in full-time physical factory work in private industry for the best part of a quarter of a century, would have gone on doing so. I find his motivation and work ethic are beyond question.
7 He recovered each time to the point of working on in physically stressful full-time positions after his various injuries. He had worked as a machine setter and had been promoted to a leading hand. Because this position involved him being on his feet walking around the factory a good deal, he opted to return to working as a machine setter where he was not constantly on his feet. This was a sensible decision by a man whose strong desire to keep working has continued to the present day.[2]
[2]CB 2 – 4
8 There were three reports tendered from Mr Russell Miller, orthopaedic surgeon, with respect to the plaintiff’s right lower leg.[3] What Mr Miller described was a worsening degenerative condition in the right lower leg that would ultimately mean the plaintiff would really only be suitable for work that does not involve prolonged standing, prolonged walking, kneeling, squatting, twisting and turning or knee agility. Mr Miller put a couple of different timespans in terms of the ongoing degeneration and thought a five to fifteen-year timeframe or a two to five-year timeframe would mean his capacity for work would get to the stage where the leg limitations described above would catch up with him.
[3]Exhibit B
9 I have not heard from Mr Miller but I do not read his reports as saying the man would be incapable of work at the present time. It is worth noting that he has not seen the plaintiff for some four-and-a-half years, so what his current opinion would be is speculation. More to the point, Mr Miller does not say the plaintiff would have a total incapacity for work but is speaking specifically about incapacity for duties that involve prolonged standing, prolonged walking, kneeling, squatting and twisting and turning.
10 I do not consider Mr Miller’s opinion supports the submission made by the defendant that the lower leg injury means I should make a finding that the plaintiff has no earning capacity due to that health issue, putting the right shoulder injury aside.
11 On 1 September 2011, while pulling a heavy chain in a chain-making machine, he felt a sharp pain in his right shoulder. I am satisfied that with respect to his earning capacity for the purposes of s134AB(38)(f) of Act, he had a capacity expressed at figures of $54,000 gross per annum. This capacity had been proven over the years in the face of all his health problems including in particular the deteriorating problem in his right lower leg. So in that sense, it was an impaired earning capacity that he had at the time of the subject injury but nevertheless it was a continuing one and yielding him $54,000 per annum. Then he hurt his shoulder.
12 On all the evidence, I am satisfied he would have worked on putting up with these other health problems for the foreseeable future with the defendant. But the shoulder injury has changed that. I am also satisfied on the evidence, that effectively he lost his impaired earning capacity on the day of that shoulder injury. On all the evidence, he has proven that he not only lost his capacity for his old job as a machine setter but also any capacity for alternative “suitable employment”.
13 Very little has been said about the medical opinions in this case. That is not surprising in view of the defendant conceding some time ago that the right shoulder was a “serious injury” in terms of pain and suffering consequences.
14 On the day he was injured, he visited his general practitioner, Dr M Saka, and commenced a long journey of treatment that has involved a number of investigations, different medications, injection treatment and specialist orthopaedic attention from two surgeons. He underwent surgery on 7 May 2012.
15 Unfortunately, this was not successful and I accept the plaintiff’s evidence that the symptoms worsened such that he consulted the second treating surgeon, Mr J Kiellerup, after the surgery performed by Dr Dellalana. He saws the second surgeon in September 2012. Further investigations took place, as did further injection treatment and different medications but really to no avail.[4]
[4]CB 4 – 6
16 He is currently on Panadol, Panadol Osteo and Movalis to help manage his pain.[5] The plaintiff readily conceded he also continued to take painkillers for his right leg condition as well as the pain in his right shoulder. I accept his evidence that he has suffered ongoing pain and restricted movement in his right shoulder over the five years since it was injured. This is a permanent situation.
[5]CB 11
17 When I enquired about the issues to be determined, the defendant indicated that the consequences of the right shoulder injury had to be determined and that really goes without saying in any serious injury application. That was a little curious considering the concession it is a “serious injury” for pain and suffering consequences. Nevertheless, it was said in the context of a need to exclude the symptoms from the right lower leg injury as it was submitted that the plaintiff, in effect, had no earning capacity because of the right lower leg injury. The defendant said if I am against that submission, then the plaintiff has a residual capacity for suitable alternative employment that would mean he fails to prove a permanent 40 per cent or more loss of earning capacity.[6]
[6]Transcript (“T”) 19 – 22
18 I have had the considerable advantage of hearing and viewing the plaintiff give evidence over some time. The defendant mounted an attack on his credit which included reference to earlier affidavit evidence about the right leg from the plaintiff and his wife in 2010 and in February 2012.[7] This attack centred on the focus in those affidavits on the consequences flowing from the leg injury in terms of his home life, social and recreational activities and his work duties. The contrast was pointed out in terms of the affidavit evidence with respect to the consequences described as flowing from the shoulder injury.
[7]CB 113 – 126
19 Inconsistency was pointed to quite correctly but in the end I am not satisfied it impacted on this man’s credit. He was describing the consequences of each injury at the particular time that a particular focus was required.
20 The further assault on credit focused on the descriptions that he gave to a number of doctors to the effect that he had recovered from a shoulder injury when the affidavits speak otherwise. I accept the explanation given by the plaintiff when he candidly admitted he lied to these doctors in an attempt to preserve his position at work.[8] He expressed it quite accurately when he said:
“For me, losing my job was a terrible prospect to face and I did not want it to happen.”[9]
[8]T82 – 83
[9]CB 10
21 The defendant relied on these statements to impugn his credit. In view of the concession by the defendant that the plaintiff has a “serious injury” in terms of pain and suffering consequences, I find the submission by the defendant difficult to give much weight. Clearly, the defendant has accepted that the level of permanent consequences no doubt as to pain and restricted mobility of the upper arm satisfy the test in terms of pain and suffering. It hardly affords its defence on the pecuniary loss damages application much, if any support, to argue that he is capable of alternative suitable employment because he has recovered and told doctors that he has recovered. Why concede pain and suffering permanent consequences?
22 This man clearly is a very unsophisticated fellow who had demonstrable difficulty both in follow paperwork that was put in front of him. On a number of occasions, matters had to be pointed out to him so he could follow the cross-examiner even on extremely straightforward matters. At one stage, stickers had to be put on the pages of the court book that was in front of him so that he could follow what counsel was directing his attention to.
23 In spite of all the difficulties he had, and there were many, I found him to be a witness of credit who, though unsophisticated at all times, was doing his best to assist the Court. I found him to be a reliable witness in particular with respect to what has been a lifelong desire to work if he possibly can. I found him reliable in regard to motivation and making every effort to work, including falsely describing a recovery to doctors, to hang onto his job. He genuinely attempted to answer questions truthfully and apart from understandable difficulty remembering details of conversations and what was in affidavits sworn in the past, he was a truthful witness.
24 He is a very stoical man who would be working if he possibly could. His pessimism about being able to hold onto his job with the long-term employer was well-founded because apart from really performing “made-up” jobs after the shoulder injury, he never got back to anything like proper duties in a real job at the factory.
25 I accept also that after being terminated by his employer, he made great efforts to regain a job. He applied for over 300 jobs on his own and used work vocational services personnel to assist him. He only got to an interview four times and has not been able to obtain work.[10] He co-operated with WorkStreams, a return to work provider, for twelve months and they could not find a job for him. He obtained a heavy truck licence in spite of the fact it was physically painful and difficult for him, but to no avail.[11]
[10]CB 8 – 10
[11]CB 12A – B
26 When cross-examined on the usual topic in such applications that “you would not apply for a job unless you felt you could do it, it was apparent to me that he maintained an optimism and desire to work that did not realistically match his capacity. It was an over-optimism on his part.
27 The fact that his very considerable efforts have been in vain for a man with such an exemplary work record points to the real need for the Court to look at the question of suitable employment with the realities of “suitable employment” in the open labour market in mind.[12]
[12]Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230; Acir v Frosster Pty Ltd [2009] VSC 454; Richter v Driscoll [2016] VSCA 142
28 For an unskilled man aged fifty-five years, reality must considered in assessing him for “suitable employment” in the terms of the definition in the Act.[13] Care needs to be taken with respect to not adopting too theoretical an approach to suitable employment and the particular individual and all the circumstances relevant have to be considered. This plaintiff is a man with effectively no computer skills. Indeed he is not even conversant with the most basic technology. Texting messages is even a problem for him. In this day and age, he is clearly well out of kilter with the everyday employee in virtually all fields of full-time employment out in the real marketplace.
[13]Accident Compensation Act 1985, s5
29 In virtually every one of these applications when a question of capacity for alternative support employment is on the table, evidence about the difference between “real” jobs and “made-up” jobs is presented. Such is the case here. The “real” job is usually a job that effectively means one that existed with the employer before the worker was injured. It was a part of the normal full-time workforce that comprised the team of workers performing necessary duties that supported the company’s production and its viability.
30 On the other hand, a “made-up” job is something that the employer has provided the worker to do who was on modified or restricted duties. Such a “made-up” job is required by the Act to be provided in certain circumstances by the employer. It almost inevitably ends when it gets to the point that the worker’s restricted duties’ certificates run out and the worker cannot return to a “real” job as part of the workforce. He is often then terminated. This is what happened in this case.
31 The plaintiff very candidly admitted that he could still do the machine operator position he was given after his “real” job as a machine setter effectively ended on the day he injured his right shoulder. This was relied on by the defendant as indicating an ongoing capacity for alternative suitable employment. I reject the defendant’s submission in this regard. On the probabilities the defendant would have kept him on. He had worked there for about twenty-five years.
32 I find on the evidence the machine operator position was in effect a “made-up” job. Also I am satisfied that the administrative type duties that he was given after his surgery were also no more than a “made-up” job. The plaintiff only worked operating one machine while he worked with his restricted duties’ certificates. Machine operators working for the defendant had to operate more than one machine if they were doing a “real” machine operating job.
33 The defendant had a workforce of some eighty people. I have no affidavit or other evidence from the defendant in this application in relation to the question of there being any “real” job for the plaintiff at the factory after he injured his right shoulder. I more readily accept the plaintiff’s evidence that after injuring his shoulder, his longstanding employer could find nothing for him by way of “suitable employment” in any real job.
34 This, in my view, is persuasive evidence of an extremely longstanding, well-motivated worker, well used to working in pain from various health issues who in effect lost his earning capacity totally on 1 September 2011.
35 Due no doubt to the defendant’s concession with respect to serious injury pain and suffering consequences, very little attention was focused on the plaintiff’s symptoms and indeed the various medical reports. Lest there be any doubt on the issue, I accept that the plaintiff will suffer serious ongoing pain and restricted mobility of his right shoulder and thus his right arm for the foreseeable future. I will confine my comments on the medical evidence to this question of suitable alternative employment as there is no doctor saying he could do his old, real job.
36 The defendant’s case essentially is that the plaintiff is capable of working full time driving a large garbage recycling truck. This is the type seen daily around suburban Melbourne and in the city picking up Wheelie bins with a mechanical arm. The driver largely stays in the driver’s seat while manoeuvring the large truck around parked vehicles and whatever other obstacles there are to access bins kept near the kerb. As well is the driving involved, there is a constant need to work the joystick that operates a mechanical arm.[14] The vehicle has dual controls so a left-hand and right-hand drive setup are in the cabin.
[14]CB 66 – 75
37 I am required to judge the plaintiffs capacity now. The general practitioner, Dr Saka, reported in 2016 that his patient was still suffering from persistent pain in the shoulder which was aggravated by movement. He described the painkillers he was on. As to work, the doctor said he did not believe he would be able to do his previous job and it comes in the context of the plaintiff describing he had not been able to work.[15] The doctor did not comment specifically on the garbage truck job but his opinion with respect to pain being aggravated by movement is relevant. It is informative when looking at the arm use required of such a driver I will say more about that later.
[15]CB 22
38 The report of Mr Kiellerup in 2014 is now quite dated. It does not assist very much in judging present capacity. Apart from a diagnosis of shoulder impingement, bursitis and acromioclavicular joint osteoarthritis, the surgeon did not comment on any actual capacity for suitable alternative employment.
39 In a more recent report, that is very clear and easily understood. The orthopaedic surgeon, Mr Bruce Love, stated in December last year that “I conclude that this man does not have current work capacity”.[16] I accept that opinion on all the evidence presented in this case. It is sound and realistic.
[16]CB 42
40 Dr J Slesenger, specialist occupational physician, reported twice in 2016. In his first and longer report he made the obvious statement that is not contested about the plaintiff’s incapacity to return to pre-injury work. He made the following comment which is consistent with the evidence:
“With regard to alternative employment, I note his focused occupational experience and I note the absence of qualifications and transferable skills. I also note the absence of computer skills.”[17]
[17]CB 33
41 He went on to say that, in terms of any alternative work, the residual capacity has the following very serious restrictions:
“No push/pull/carry over five kgs. No over shoulder reaching. No repetitive shoulder work. Four hours per day, four days per week, five minutes rest break per hour. I am of the opinion that he is unlikely to be able to translate this into meaningful employment in an open job market.”[18]
[18]CB 33
42 I accept this opinion again as realistic. When one considers the real limitations for an unskilled manual worker that Dr Slesenger listed, in my opinion, they translate into no realistic earning capacity in the labour market. No garbage truck driver can be a full-time truck driver in the real world if he needs a five-minute break every hour, just to take one limitation alone.
43 He was asked to comment on the garbage truck driving job. The suitable employment report of Recovre in regard to that suggestion was sent to him. In addition to that report, he had all so been sent the report of Dr G Davison, consultant occupational physician, who had reported to the defendant on the plaintiff’s suitability for this job on the garbage truck.[19]
[19]CB 36
44 In what is a well explained report by Dr Slesenger in which he answers a number of directly relevant questions, he pointed out a number of aspects implicit in that job that Dr Davison had not taken into account. The lifting requirements of the job were such an example. The operator being required to climb in and out of the vehicle repetitively was also commented on by Dr Slazenger.[20]
[20]CB 36
45 He also recorded how he had personally previously performed assessments of workers performing such work driving these trucks. As well is driving the vehicles and repeatedly operating the joystick to pick up the rubbish, the doctor noted the requirement to enter and exit the vehicle repeatedly.
46 The plaintiff’s shoulder injury, on any view of the photographs of these vehicles contained in the Recovre report, would require him to use his arms to drag himself up to considerable height to get into the cabin. That task of itself, with the shoulder injury he has, conceded as a serious injury with respect to pain and suffering consequences, would render this job unsuitable for the plaintiff.[21]
[21]CB 37
47 I accept the evidence of Dr Slesenger as being far more thorough and indicating a much fuller consideration of the range of disabilities the shoulder injury has caused to the plaintiff, coming on top of his fused left ankle and his right lower leg symptoms and disabilities than Dr Davison’s report indicated. I accept the well-argued and unequivocally expressed opinion of Dr Slesenger.
“I have reviewed the report of Dr Davison of 15 September 2015. Dr Davison identifies that Mr Van Den Vlekkert could work as a recycling truck driver. I am firmly of the opinion that he could not perform this role.”[22]
[22]CB 37
48 Dr G Curtis, orthopaedic surgeon, reported to the defendant’s solicitors twelve months ago. He described the plaintiff is a very straightforward man with no evidence of illness behaviour or any exaggeration.[23] He put real limits on the plaintiff’s capacity to work and although Mr Curtis thought the plaintiff would be able to work eight hours a day, provided he could find work suitable to fit within the limits he mentioned, those limits are very real. They are:
“He will have difficulty with all above head work. There should be a weight restriction with respect to lifting no greater than 15 kilograms and repetitive work, in particular using is right upper limb should be minimal.”[24]
[23]CB 48
[24]CB 48
49 When a proper understanding of all the duties involved and driving the garbage truck is reached, in my opinion, the report of Mr Curtis really amounts to support for the finding I have made that the garbage truck job is beyond the plaintiff’s capacity. Those limits Mr Curtis spoke of for an unskilled manual worker aged fifty-five years really mean there is no capacity for suitable employment out in the real world. I have already alluded in part to the reports of Dr Davison. I do not accept the opinions he expressed. I find inconsistency between a number of the opinions he expressed. He said for example that the right shoulder problems would mean that the plaintiff would be recommended to:
“1 Avoid repetitive or sustained use of the right arm above chest height;
2 Avoid forceful and/or repetitive pushing or pulling with the right arm away from the body;
3 Avoid manual handling greater than 15 kg in force or weight between mid-chest and mid-thigh height using both hands.”[25]
[25]CB 54
50 When the Recovre report about the garbage truck job is examined, it is clear that a number of these restrictions put on the plaintiff by Dr Davison would become very relevant to his capacity. Just to take one example, the horizontal large steering wheel shown in the photographs clearly would involve a man of the short statue of the plaintiff pushing and pulling with his right arm and indeed his left arm away from his body. In addition, he has to repetitively push and pull on the joystick virtually all day long as he picks up the Wheelie bins that must, on any view, number in the hundreds, if not more, as he spends his shift picking them up through the streets.
51 I reject the opinion given by Dr Davison that the plaintiff is physically capable of undertaking the duties of a recycling truck driver.[26] It is a statement inconsistent with his own opinions about the restrictions on this man due to his shoulder injuries.
[26]CB 61
52 I also find that either Dr Davison has not taken into account a proper history of this man’s fused left ankle and ongoing degenerative right lower leg disabilities in coming to a conclusion about his capacity to drive the truck and to attend to the various duties involved in that job.
53 Dr Yong, specialist occupational physician, reported to the defendant in 2013. That report is now over three years old. It does not assist much in relation to an assessment of the plaintiff’s earning capacity which I must judge now, in July 2016. It was also founded on the erroneous statements given to that doctor by the plaintiff that he is asymptomatic. This was said due to the plaintiff’s desire to hide the truth in his desperate attempts to stay in employment with the defendant.
54 A report from Dr Clive Kenna, consultant in musculoskeletal pain management, was provided to the defendant in May 2014. It again is so out of date and is of limited use in judging capacity now. That report is also flawed because of the untruthful account the plaintiff candidly said he gave to this doctor in order to try and preserve his employment.[27] The plaintiff summed it up very accurately, in my view, when he said the lies he told the doctor were because:
“And of course I’m going to disguise any pain or discomfort, because I was still in the hope that I would get my job back.”[28]
[27]CB 105
[28]T83
55 The Recovre report is based on very incomplete material. For some reason the only medical report sent to the assessors was that of Dr Davison dated 14 July 2015.[29] Clearly, other medical reports were available at this stage supporting the serious injury application. No other medical opinions were forwarded. Recovre’s opinion is so inadequately founded on insufficient material it is unpersuasive. Even more noteworthy is the fact that for some reason the plaintiff was not even personally interviewed.[30] To take one example of inadequate material, the Recovre report does not even include any history of the man being assessed who has had a fused left ankle for years, nor that he has had a deteriorating right lower leg crush injury since 2006.
[29]CB 65
[30]CB 65
56 The report itself shows in photographs the constant reaching out with the plaintiff’s right arm required of the job to steer and work the joystick.[31]
[31]CB 68 – 69
57 I reject the suggestion the driver only exits the vehicle on the few occasions recorded when the job requires manually collecting and pushing the bins of people requiring special assistance, such as the elderly and unwell.[32] Just how often this task is required, to get out, collect the bin from some place or other, climb back in, operate the joystick, return the bin to where the owner keeps it must surely vary enormously. For example I do not need evidence and can take judicial knowledge of the fact that bins might come from a retirement village or a nursing home or a block of flats or suburbs where there may be a lot of the elderly. None of this is properly considered in Recovre’s conclusions in my opinion. Even the technological and digital literacy required such as Level 5 Windows/Mac are beyond the plaintiff.[33]
[32]CB 71 – 73
[33]CB 74
58 I accept also the plaintiff's evidence that even the 30-minute driving lessons in these vehicles caused him to be unable to rotate the steering wheel at the end of the lesson. I also accept he could not do that driving for a prolonged period when he described the problem of climbing in and out of a large truck.[34]
[34]CB 12B; T90 – 92
59 In contrast to the Recovre report, the 17-page vocational assessment report from Evidex involved an interview of the plaintiff. It also involved a detailed history of his education and work history and the statutory considerations required in the definition of “suitable employment”. Evidex found him incapable of performing the recycling garbage truck job.[35]
[35]CB 76 – 93
60 For the reasons mentioned, I am satisfied the plaintiff has suffered a permanent loss of earning capacity of 40 per cent or more due to the right shoulder impairment.
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