VWA v RBM Plastic Extrusions Pty Ltd
[2010] VCC 1826
•20 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-00456
| Lazar Koteski | Plaintiff |
| v | |
| Victorian WorkCover Authority and R.B.M. | Defendant |
| Plastic Extrusions Pty Ltd (Trading as Paramount Plastics) |
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| JUDGE: | S. Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 & 30 November 2010 |
| DATE OF JUDGMENT: | 20 December 2010 |
| CASE MAY BE CITED AS: | VWA v RBM Plastic Extrusions Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1826 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s134AB(16)(b) –permanent serious impairment – aggravation of pre-existing injury to the left shoulder –loss of earning capacity – pain and suffering.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. O’Dwyer S.C. with Mr | Alessi & Kemp Solicitors |
| G. Coldwell of Counsel | ||
| For the Defendant | Mr R. Middleton S.C. with Ms | Hall & Willcox Lawyers |
| H. Donmez | ||
| HER HONOUR: |
1 Mr Kotevski applies for leave to issue proceedings for loss of earning capacity and pain and suffering in respect of an injury to the left shoulder suffered during the course of his employment as a plastics machine operator with the defendant, Paramount Plastics, in 2004. The application is made under s.134AB(16)(b) of the Accident Compensation Act 1985 (“The Act”).
2 Mr Kotevski is 56 years old. He was born in Macedonia and educated there to the age of 12, after which he worked on the family farm, in labouring jobs and in the Army. He arrived in Australia in 1973 aged 20 years. He worked as a labourer, forklift driver and machine operator before commencing work at Goodyear Tyres (“Goodyear”), where he worked as a process worker for 20 years before being retrenched in August 2002. After a short period of unemployment he obtained 12 months casual work at a factory making balls for lawn bowls. He commenced working for the defendant in August 2004 on a casual basis operating a machine that produced plastic sheeting. The work was heavy and over a number of weeks his left shoulder became very sore and swollen. He kept working but the pain worsened. He saw his doctor in October 2004 and was sent for an ultrasound. He has not worked since 22 October 2004.
3 Mr Kotevski says that he had some left shoulder pain in 1994 and suffered an injury to his left shoulder in a fall in November 1999 while working at Goodyear. He had physiotherapy for three months but did not have any time off work and worked long hours until being retrenched in 2002. Prior to August 2004, he maintained an active lifestyle. Mr Kotevski says that although he suffered a torn supraspinatus tendon in 1999, the impact of this injury was limited. He says that the aggravation of his symptoms in 2004 flowing from the torn tendon has resulted in a permanent incapacity for all employment. He cannot read or write English and has difficulty understanding it. He takes two Panadol almost every day for pain relief as well as Voltaren. His sleep is interrupted a number of times due to left shoulder pain. The pain is exacerbated by activity but can come on without activity.
4 The parties agree that the plaintiff has a torn supraspinatus tendon in the left shoulder. The defendant says that the plaintiff has not established that the consequences flowing from any aggravation of his left shoulder injury are serious. In particular, the defendant says that the plaintiff’s left shoulder had been troubling him from as early as 1989 (while he worked for Goodyear), and that he had reduced his overtime due to his left shoulder problems in 2001- 2002 so that his income dropped from $87,000 to $76,000. While working at Henselite, the plaintiff earned $26,000 for a 12 month period. While working for the defendant he earned between $570 and $630 per week. He never reported any left shoulder injury to Paramount Plastics while he worked there, and made no claim in respect of the left shoulder injury until more than two years after leaving Paramount Plastics. The defendant says that his condition then reverted to what it had been prior to his employment with the defendant. The defendant says that only two doctors (Mr King and Mr Battlay) attribute significant aggravation of the left shoulder condition to the work carried out for the defendant, while the plaintiff’s treating doctor, Dr Vaiopoulos makes no attribution of his shoulder condition to his work at Paramount Plastics. Finally, the defendant relies on the extracts of video surveillance in April and May 2007 which it says show the plaintiff using the left shoulder more freely than his presentation to doctors suggests.
The hearing
5 The plaintiff gave evidence and was cross-examined. He relied on documents including: his affidavits sworn 21 October 2009 and 5 November 2010; the reports of his treating general practitioner, Dr Vaiopoulos; ultrasounds of his left shoulder in 2004 and 2006; the medico-legal reports of Mr King, Dr Baker, Mr Battlay and Mr Clive Jones; the Medical Panel Opinion dated 17 October 2008; the Flexi Personnel reports of Ms Melik in November 2010; extracts from the notes of a treating physiotherapist in 2000; and documents concerning the determination of entitlement impairment benefits and the acceptance by the plaintiff of the sum offered.
6 The defendant relied on affidavits from the managing director of Paramount Plastics, Mr Peter McWilliam and two supervisors, Mr Pando Stefanovski and Mr Zoran Naumouski; a number of compensation documents[1]; medico-legal reports of Mr Michael Shannon; Dr D Bolzonello; Mr Brian Davie; Mr Timothy Gale and Mr Clive Jones; a Nabenet report dated 17 May 2010; a document outlining various suitable job descriptions; material relation to the plaintiff’s application for employment in August 2004; and a letter from the plaintiff’s solicitors to Dr Vaiopoulos dated 7 April 2008.
The plaintiff’s evidence
[1] Worker’s Claim Form dated 23 January 2007, Employer’s Claim Report dated 19 February 2007, Worker’s Claim Form dated 4 December 1987, Employer’s Claim Report dated 4 December 1987, Employer’s Claim Report dated 26 March 1992, Worker’s Claim Form dated 1 June 2000.
7 In his affidavits[2], the plaintiff stated that he was born in Macedonia in 1953 and went to primary school until the age of 12, when he started to work on the family farm. Later, he worked as a labourer and then spent a year in the Army. He came to Australia in 1973 aged 20. His English is still very poor and he cannot read and write it or understand it well. He worked in various jobs until securing a job as a process worker at Goodyear, where he worked for twenty years until he was retrenched in August 2001. He injured his left shoulder while working at Goodyear in 1999 but managed to return to working long hours there until 2002. After a short period of unemployment he worked as a cleaner and as a factory worker before obtaining 12 months casual work at Henselite making balls for lawn bowls. In addition to being able to work full- time, he was able to enjoy fishing, gardening and doing odd jobs around the house.
[2] Sworn 21 October and 5 November 2010.
8 He stated that over the few weeks he worked at Paramount Plastics, his left shoulder pain became much more severe than it had been in 1999, but he kept working because he was worried about losing his job. When his pain persisted, he complained to Dr Vaiopoulos and was put off work after the ultrasound showed a torn tendon in the left shoulder. At the time, he was earning approximately $672.00 gross per week plus superannuation. He is now on a Disability Pension. He has had no contact from the defendant or WorkCover concerning rehabilitation assistance. But for his left shoulder injury, he planned to keep working until the age of 67.
9 He is very restricted in his daily activities and has pain in his left shoulder and neck. His sleep is adversely affected and he is irritable and tired as a result.. Everyday activities can aggravate his left shoulder pain which is always present to some degree, but the pain sometimes becomes severe when he is doing nothing at all. He cannot lift his left arm high above shoulder level. He cannot dig in the garden as he used to, nor use the mower or the whipper snipper. He no longer helps with cleaning, cooking or vacuuming at home. He has to shower, wash his hair and shave with one hand. He does not enjoy fishing any more. He socialises less. He is upset he can no longer pick up his grandchildren. He takes Voltaren tables twice daily as well as Panadol and uses Voltaren cream. Dr Vaiopoulous has told him that nothing further can be done for his injury apart from surgery, which the plaintiff refused because of concerns that it might make him work.
10 In cross-examination at the hearing, the plaintiff said that he stopped working at Henselite because they had no more work for him. He agreed that he had signed forms seeking compensation from Goodyear in respect of his left shoulder and right carpal tunnel syndrome.
11 He denied having any left shoulder problems when he started work at Paramount Plastics. He agreed that the form he filled in before starting work for the defendant did not include any claims in the previous five years but said that his friend filled in the form for him and he was told this was how it needed to be completed in order for him to secure employment at Paramount Plastics. He could not recall what he told the payroll officer when he left work there but said he did not lodge a claim at the time because he thought he would recover and get back to work. Later in cross-examination he said that he did not know he had the right to ask for compensation until told by his solicitor that he could. He insisted that he believed his left shoulder had recovered after 1999, but said that while working at Paramount Plastics he was repeatedly lifting or tilting very heavy rolls and found it very difficult to do the job. He agreed that much of the time he had help from a co-worker with lifting but said that if the co-worker was not there he had to do the tasks on his own. About three weeks after starting work for Paramount Plastics he saw his doctor with a very swollen left shoulder which he had never had before.
12 The plaintiff said that the extracts of video surveillance showed him helping a friend to fill some cans with petrol. He agreed that the film showed him lifting his left arm above his shoulder to fill the tank, but said that he could do that for 2 minutes and sometimes stretches to relieve pain and a s a form of exercise. He said that he was lifting an empty cylinder into the truck by lifting it to waist height, and his friend put it into the truck. He agreed that he has not looked for work since October 2004. He said that he mentions his left shoulder to his doctor when he needs a script for more medication. He denied that his left shoulder condition in 2007 and today was the same as it had been before he started working for Paramount Plastics. He said that recently he had asked his doctor about surgery but had been told it will not help him.
13 In re-examination, the plaintiff said that after his 1999 injury he was advised to see a company physiotherapist and was discharged from her care after three months of treatment. He agreed with her note that at the time of discharge he was managing at work. He said that at Henselite they tried to teach him how to use a computer but he was unable to learn how to do so because of his poor reading and writing skills.
Radiology
14 Ultrasound of the left shoulder on 20 October 2004 was reported as showing a “suspected focal full thickness tear supraspinatus insertion”[3] of about 1.6 cms in length.
[3] Plaintiff’s Court Book (PCB) 35.
15 Ultrasound of the left shoulder on 28 November 2006 was reported as showing a “2.3 cm full thickness tear of supraspinatus”.[4]
Medical evidence
[4] PCB 36.
16 Notes from the treating plaintiff’s physiotherapist in February and March 2000 noted that the left shoulder was continuing to improve. By 10 April 2000, the notes recorded that the plaintiff estimated he had regained 60% of his capacity in the left shoulder, and was “coping ok at work”.[5]
[5] PCB 158.
17 Dr Chris Baker, specialist in occupational and public health medicine, reported on 22 December 2005 that the plaintiff suffered a full thickness tear of the rotator cuff. In his opinion, because the plaintiff had continued working after being retrenched from Goodyear, there was insufficient evidence that he suffered that tear while working at Goodyear. He felt that the injury arose de novo while the plaintiff was working with Paramount Plastics. On 25 January 2006, Dr Baker reaffirmed his opinion.
18 On 16 December 2005, Mr Brian Davie, orthopaedic surgeon, reported a history of left shoulder pain after a fall at work in 1999 and some difficulty lifting at Paramount Plastics in 2004. He concluded that there were degenerative changes already present which caused symptoms during his working life before 1999 but the fall in 1999 caused the rotator cuff tear and further symptoms. In a later report dated 5 March 2008, Mr Davie noted a more specific history of “extensive lifting involved with this position” at Paramount Plastics in 2004 and that the plaintiff was “troubled by his left shoulder” and had to stop work in mid-2004.[6] In light of this history, Mr Davie concluded:
I believe the left rotator cuff tendinopathy has come on related to his employment over a number of years, but the specific accident on 19 January 1999 has probably caused the tear in the degenerative tendon. There has been a further exacerbation and possible further minor tear while working with Paramount in 2004.
I would think the major incapacity for employment relates to the original injury with Pacific Dunlop Tyres, with only a fairly moderate contribution from RBM Plastic Extrusions Pty Ltd.[7]
[6]
[7] Defendant’s Court Book (DCB) 53.
19 Mr Davie felt that he could work mainly with his arms to the side, and therefore could work as a console operator, stock clerk or static security guard.
20 Mr Timothy Gale, surgeon, reported on 8 July 2008 a history from the plaintiff of a fall in 1999 causing pain and stiffness in the shoulder, physiotherapy for three months but no time off work, with some ongoing pain in the left shoulder for a number of years. He continued to work with discomfort until the factory closed in 2002, and then worked for Henselite and then for Paramount Plastics. While at Paramount Plastics working as a process worker he developed increasing pain and restricted left shoulder movement, and stopped work in 2004 because of increasing pain. That pain and restriction of movement have continued.
21 Mr Gale concluded:
As a result of an incident at work in November 1999 the worker is likely to have suffered aggravation of a degenerative process involving the rotator cuff structures of the left shoulder girdle, with probably consequent tear of the supraspinatus component of the rotator cuff. This condition has been symptomatically aggravated by work for Paramount Plastics in 2004 when he noticed increasing pain and stiffness.
I would consider that at least 80% of his current symptoms relating to the left shoulder stem from the fall in November 1999 based on information currently available to me.[8]
[8] DCB 58.
22 The plaintiff’s treating general practitioner, Dr Vaiopoulos, provided a number of medical reports. In his first report dated 1 March 2006 he noted that the plaintiff had been attending the practice since 1986. He noted a report of a fall at work prior to 2000, as well as a history of persistent left shoulder pain in October 2004. He found some limitation of abduction and tenderness over the tendon. He prescribed exercises and anti-inflammatories and also gave the plaintiff local topical cortisone injection for symptomatic relief. He noted that the condition was now chronic and probably permanent, and affected the normal function of the left shoulder. He felt that while the plaintiff may be fit for modified duties, his lack of skills, poor English and his age made him a very poor candidate for retraining.
23 On 23 January 2007 Dr Vaiopoulos noted the plaintiff had a painful left shoulder for some years while working at Goodyear and received some physiotherapy in early 2000 for it. Dr Vaiopoulos referred the plaintiff to an ultrasound in August 2004 which showed a full thickness tear. He noted that the condition had been present for many years, and arose out of his work at Goodyear. On 19 May 2008, Dr Vaiopoulos noted the history of intermittent left shoulder pain since even before 1999. He repeated the conclusions reached in his 2006 report. On 23 November 2010 he opined that the plaintiff was unemployable due to his age, skill level, education, general health and medical restrictions.
24 On 20 March 2007, Dr Bolzonello, sports physician, reported a history from the plaintiff that at Paramount Plastics the plaintiff was required to lift a long steel bar weighing around 40 kilograms with a co-worker, and to carry it up 2 steps, and that after two weeks of work his left shoulder pain flared up. Dr Bolzonello concluded that it was impossible to tell whether the frank rotator cuff tear seen on ultra sound related to his employment at Paramount Plastics. He noted that such tears can be degenerative and that work at Goodyear is likely to have contributed to the degeneration. He noted that there was no report of any incident or of pain or restriction while at work at Paramount Plastics and felt therefore that his employment there “did not cause an acute injury or contribute anything to the degenerative process in the left shoulder”.[9] Dr Bolzonello then stated:
I believe the act of using his shoulder caused his symptoms to become more apparent compared to his relative inactivity prior.[10]
[9] DCB 41.
[10] Ibid.
25 Dr Bolzonello concluded in answer to specific questions that there was no injury from employment at Paramount Plastics and that “at most he may have sustained a temporary exacerbation of symptoms but not any underlying pathology”.[11] He felt that the plaintiff had a capacity for full time light work not involving heavy lifting or repetitive overhead lifting. In a further report on 6 February 2008, Dr Bolzonello noted the fact that the plaintiff had seen Dr Vaiopoulous while he was working at Paramount Plastics and that an ultra sound had been ordered. He concluded that the work related component to the plaintiff’s injury related to his employment at Goodyear and the fall in 1999.
[11] DCB 42.
26 On 5 April 2007, Mr Michael Shannon, orthopaedic surgeon, reported that after his shoulder injury in 1999 the plaintiff had about three months of physiotherapy. He took a history from the plaintiff that “the shoulder remained sore but he was able to do his normal job and he had no other treatment until after he was retrenched when the factory closed in 2002”.[12] He then saw his local doctor and was prescribed anti-inflammatory treatment and gel. He was able to work at the Hensalite factory without restrictions in 2003. In 2004 he worked at Paramount Plastics which he told Mr Shannon was a very heavy job, and he noted increased pain and swelling in the left shoulder, but without a specific incident or injury.
[12] DCB 33.
27 Mr Shannon found significant restriction of movement of the left shoulder. On the history obtained, Mr Shannon felt that while the plaintiff had ongoing rotator cuff problems in the shoulder since 1999, “there may have been some further aggravation in 2004”.[13] He noted that it was possible for a rotator cuff tear to be “reasonably symptom free”.[14] He felt that his employment was a significant contributing factor to his condition, although he did not apportion the condition as between the employment at Goodyear and that at Paramount Plastics. Mr Shannon concluded that he had positive impingement signs but could perform light physical work not involving heavy lifting, lifting above shoulder level or repetitive use of the left arm.
[13] DCB 35.
[14] Ibid.
28 Mr Kevin King, surgeon, reported on 3 August 2007 a history of left shoulder pain after a fall at work in 1999 but noted that the plaintiff had no time off work and continued in his normal duties, which were not particularly heavy. The plaintiff did casual light duties at Henselite before working at Paramount Plastics. The work at Paramount was much heavier than his previous work, and involved a lot of stress on his shoulder and he developed persistent severe left shoulder pain. He noted that the plaintiff ceased work in August 2004 due to persisting pain and stiffness in the left shoulder and to a lesser extent mild intermittent nagging discomfort in the left side of the neck.
29 Mr King concluded that although in 1999 the plaintiff suffered an injury to the left rotator cuff and tendons, he did not see a doctor and managed to continue doing his normal moderately heavy work, although with some difficulty. Mr King concluded that over three months at Paramount Plastics the plaintiff sustained repeated heavy stress and strain on the left shoulder which “significantly aggravated the pre-existing rotator cuff injury to the left shoulder”[15] which he sustained in the fall in 1999. The pain became severe enough for his doctor to put him off work, and he has been off work ever since, with appropriate conservative treatment. Mr King felt that the plaintiff was permanently unfit to return to his pre-injury duties but could manage light work which did not involve any lifting or pushing stresses on the left shoulder and which would allow him to keep his left arm at his side. Mr King found no sign of functional overlay and found the plaintiff strongly motivated to work prior to his injury. He attributed half of his current incapacity to the 1999 fall and half to the significant aggravation caused by the left shoulder condition resulting from the heavy work undertaken at paramount plastics.
[15] PCB 41.
30 On 16 September 2010, Mr King reported that his clinical opinion remain unchanged and that it was still his view that the work at Paramount Plastics “significantly aggravated the previously chronic rotator cuff injury in the left should joint which was attributable to the fall at Goodyear in November 1999”.[16] He felt that there had been little change in the plaintiff’s loss of function in the past three years and that the impairment is of “moderate severity”.[17] He maintained his views concerning apportionment. Mr King felt that while “theoretically” he could manage light work if it did not involve any lifting or pushing stresses on the left shoulder and arm and allowed him to work with his left arm at his side, “from a practical point of view it is highly unlikely that such work would be available to him”.[18]
[16] PCB 48.
[17] Ibid.
[18] PCB 49.
31 On 8 October 2010, Mr King commented on the extracts of video surveillance of the plaintiff on 2 April 2007. He noted that the plaintiff abducted his left shoulder to about 80 degrees while holding the nozzle of the petrol pump hose and stated this suggested “there is a fair range of movement in his left shoulder”.[19] He noted that the plaintiff walked briskly without undue use of the left shoulder, and also that at one stage he abducted his left arm at the shoulder joint itself at about 90 degrees. Mr King noted that this range of movement did not exceed the ranges (0 degrees to 110 degrees) of combined abduction and flexion at which he found when examining the plaintiff in September 2010. Having seen the material, Mr King concluded that his opinion remain unchanged.
[19] PCB 51.
32 On 18 May 2008, Mr Clive Jones, orthopaedic surgeon, noted a history of a normal left shoulder until a fall in 1999, with the plaintiff continuing to work at Goodyear and elsewhere until 2004 when his shoulder became increasingly painful. The plaintiff was being prescribed Voltaren and Panadeine but could not afford physiotherapy. He felt that the plaintiff had “a significantly reduced functional capacity in his left arm”[20] and would be unable to lift more than 5 kilograms with the arm or to use his left arm at or above shoulder level. In the light of these restrictions, along with his age, work history and medical conditions, Mr Jones felt it was unlikely he would undertake alternative employment.
[20] DCB 66.
33 On 8 March 2010, Mr Jones reported that the plaintiff’s shoulder tendon injury occurred during his employment with Goodyear as the result of a fall. Mr Jones noted:
A claim was not made, and work time lost was minimal. The symptoms continued and were still present when he had a short period of employment with RBM Plastics. Heavy lifting was thought to have been responsible for the aggravation or ongoing symptoms in the left shoulder, together with pain in the neck and lower back. These symptoms continue to trouble him.[21]
[21] DCB 69.
34 In relation to work capacity, Mr Jones concluded:
He certainly does have an impaired incapacity for work, but might manage suitable light employment. I note his employment history seems to be in the heavier end of the industrial scale, and his unfamiliarity with English would make re-employment difficult. He is in my view, unlikely to rejoin the workforce.[22]
[22] Ibid.
35 On 23 July 2008, Mr Peter Battlay, orthopaedic surgeon, reported that in spite of the injury to the left shoulder in 1999 the plaintiff was able to continue working at Goodyear, although he noted the plaintiff told him the work there was not as heavy as with Paramount Plastics. Mr Battlay felt the plaintiff further aggravated the left shoulder while working for Paramount Plastics, and that his employment with Goodyear and Paramount Plastics contributed equally to his impairment. Mr Battlay noted that although the plaintiff “did have a pre-existing injury, he was at no stage incapacitated until his subsequent aggravation through his employment with RBM Plastic”.[23]
[23]36 In a Certificate of Opinion dated 17 October 2008, the Medical Panel determined that the plaintiff had 7% whole person permanent impairment resulting from the accepted left shoulder injury.
37 On 17 May 2010, Marion Chua of Nabenet, provided a vocational assessment report in which she identified three possible employment options for the plaintiff: factory hand; electronic assembly and process worker. She concluded that these positions do not involve strenuous lifting tasks and/or repetitive gross motor movements involving the left shoulder.
38 On 4 November 2010, Louise Meilak of Flexi Personnel provided an employment assessment report in which she noted the plaintiff’s age, work history, poor English, inadequate transferable skills, restrictions and pain and concluded that he was not a suitable candidate for retraining or for any employment even if allowances were made for his restrictions. On 8 November 2010, Ms Meilak provided a further report in which she commented on the suitability of jobs suggested by the Nabenet report dated 17 May 2010. Ms Meilak noted that these roles are repetitive and involve constant use of both arms, which the plaintiff is unable to do.
39 The affidavits from Mr McWilliams, Mr Stefanovki and Mr Naumouski confirmed that the plaintiff did not report any injury at work in 2004 either at the time it occurred or when he resigned in late October 2004.
Legal principles
40 In order to make out a “serious injury” within paragraph (a) of the definition in section 134AB(37) of the Act, the plaintiff must establish that he has suffered a permanent serious impairment or loss of a body function whose consequences to him in terms of loss of earning capacity and pain and suffering are, when judged by comparison with other cases in the range of possible impairments or losses of a body function,[24] fairly described as being more than significant or marked, and as being at least very considerable.[25]
[24]
[25] See section 134AB(38)(c) of the Act.
41 Decisions as to whether an injury is serious involves elements of fact, degree and value judgement.[26] A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[27] On the authorities,[28] the proper analysis involves: establishing that the plaintiff suffered compensable injury after 20 October 1999; establishing what that injury was; determining the consequences which the plaintiff alleges have resulted and that those consequences were “materially contributed to” by the compensable injury; and determining whether those consequences meet the “very considerable level” in terms of pain and suffering and/or loss of earning capacity.
[26] Fleming v Hutchinson (1991) 66 ALJR 211.
[27] See Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58].
[28] Ibid [80].
42 The whole of the evidence before the court should be considered, not just the medical evidence.[29]
[29] Ibid [85]. See also Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 at
43 Where loss of earning capacity is alleged, leave to issue proceedings is not to be granted unless the plaintiff establishes that, as at the date of the hearing, as a result of the injury he has suffered a permanent loss of earning capacity of 40% when a comparison is made between his without injury earnings in the three year period before and after period as best reflects his earning capacity, and his earning capacity at the present time from suitable employment.[30] The plaintiff will not establish the requisite loss of earning capacity if, after taking into account his physical or mental capacity for suitable employment[31] after the injury and his attempts to participate in rehabilitation or retraining, he has a capacity for any employment which, if exercised, would result in his earning more than 60% of his pre-injury earnings as determined in accordance with paragraph (f) of section 134AB(38) of the Act.32
[30] [170].
[31] The definition of “suitable employment” is set out in s.5(1) of the Act and requires regard to be had to
44 Where a plaintiff claiming to have suffered serious injury consequences in terms of both pain and suffering and loss of earning capacity satisfies the loss of earning capacity requirements of s.134AB, that plaintiff is entitled to claim damages for both loss of earning capacity and pain and suffering. It is therefore not necessary for the Court in those circumstances to determine whether the plaintiff has established the pain and suffering limb of her application.33
Findings and reasons
45 I note that on 21 October 2008 the defendant admitted liability for the claimed injury to the left shoulder.
46 There is general consensus in the medical reports (from Mr Baker, Mr Davie, Mr Gale, Dr Bolzonello, Mr Shannon, Mr King, Mr Jones and Mr Battlay) to the effect that although the plaintiff suffered an injury to the left shoulder while working at Goodyear in 1999, he also suffered a symptomatic aggravation of his underlying left shoulder condition in 1994 while working at Paramount Plastics. Mr Shannon opined that it was possible for a rotator cuff tear to be reasonably symptom-free.
47 There were minor disagreements between them as to the extent of the contribution of the 1999 fall and the 2004 aggravation to the plaintiff’s current symptomatology. Mr Davie felt that the 1999 fall caused the tear, and that a
the nature of the worker’s incapacity, pre-injury employment, age, education, skills, work experience, place of residence, return to work plans and occupational rehabilitation services “regardless” of whether the work is available or is of a type or nature that is generally available in the employment
market.
See section 134AB(38)(g) of the Act.
See Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority [2009] VSCA 170 per Redlich JA and Beach AJA at [63].
possible further minor tear occurred in 2004, and concluded that any major incapacity flowed from the 1999 fall. Mr Gale felt that the tear occurred in 1999, with symptomatic aggravation in 2004; he attributed 80% of symptoms to the 1999 fall and 20% to the 2004 aggravation. Dr Bolzonello conceded that a temporary aggravation of symptoms may have occurred in 2004 but that there was no change to any underlying pathology. Mr Shannon made no apportionment. Mr King and Mr Battlay each attributed half of the plaintiff’s incapacity to the 1999 fall at Goodyear and half to the 2004 aggravation arising from work at Paramount Plastics. Mr Jones and Mr Baker attributed all of his current incapacity to the work at Paramount Plastics on the basis that the plaintiff was able to work full time after the 1999 injury but lost the capacity to work after the aggravation sustained at Paramount Plastics in 2004.
48 In relation to any residual work capacity, there was general consensus that he was permanently unfit for his pre-injury duties. His treating doctor, Doctor Vaiopoulos, concluded that he was permanently unfit for all employment having regard to his injury, limitations, age, education, lack of skills and poor English and that he was not a suitable candidate for retraining for these same reasons. Mr Jones agreed that these factors meant that he could not work in spite of a theoretical capacity for light work keeping his left arm to his side. Mr Shannon felt that he was theoretically capable of doing light physical work with no heavy or overhead lifting but doubted that he would ever work again. Mr Davie felt that he could work with his left arm to his side, as a console operator, stock clerk or static security guard. Mr King felt he was capable of light work which allowed him to keep his left arm at his side. Only Dr Bolzonello felt that he was capacity of doing this work full time.
49 In the light of all the evidence before me I consider for the following reasons that while working for the defendant in 2004 the plaintiff suffered an aggravation of his pre-existing left shoulder problem which has effectively extinguished his work capacity and therefore that the consequences of his left shoulder impairment in terms of loss of earning capacity are more than considerable when compared with other cases in the range of possible impairments of a body function.
50 Firstly, the evidence is to the effect that while he may have suffered a rotator cuff tear as a result of the fall in 1999 at Goodyear, he only had three months of physiotherapy while continuing to work full time, and did not have further treatment for his left shoulder thereafter until 2004. His treating physiotherapist in 2000 noted when she discharged him from her care that he was coping at work. He continued to work full time until 2002 and then full time with other employers prior to starting work for the defendant.
51 Secondly, I found the plaintiff to be an impressive, understated witness. I accept his evidence as to his pain, restrictions and level of medication flowing from the left shoulder injury. I do not consider that the extracts of video surveillance shown in court detract from his credit. I accept the opinion of Mr Jones, who viewed the material, that the degree of abduction demonstrated on video was no greater than that which Mr Jones measured when the plaintiff attended his rooms. I do not consider that the extracts of video surveillance are of assistance in determining the plaintiff’s physical capacity for suitable employment.
52 Thirdly, the jobs suggested by Flexipersonnel (electronics assembly, process worker, emptying bay leaves) are repetitive and involve constant use of both arms, which the plaintiff cannot do. The position of robot operator is fanciful given his inability to read or write English. The restriction imposed by most doctors that he work with his left arm by his side, or not use it repetitively at all, coupled with his age, education, poor English, poor transferable skills, limited work history and his unsuitability for retraining, means that his work capacity has been effectively extinguished by the aggravation to his left shoulder injury which occurred in the course of employment in 2004.
Conclusion
53 It follows that leave is granted to the plaintiff to bring proceedings for the recovery of damages for loss of earning capacity and pain and suffering in respect of the injury to the left shoulder sustained in 2004 during the course of his employment with the defendant. I reserve the question of costs.
DCB 55.
| PCB 63. See section 134AB(38)(b) of the Act. |
See section 134AB(38)(e)(i) and (38)(f) of the Act.
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