Yuce v Goodyear and Dunlop Tyres (Aust) (T/As South Pacific Tyres) and VWA
[2013] VCC 76
•19 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-06005
| DURAN YUCE | Plaintiff |
| v | |
| GOODYEAR & DUNLOP TYRES (AUST) (Trading as SOUTH PACIFIC TYRES) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 January and 1 February 2013 | |
DATE OF JUDGMENT: | 19 February 2013 | |
CASE MAY BE CITED AS: | Yuce v Goodyear & Dunlop Tyres (Aust) (T/As South Pacific Tyres) & VWA | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 76 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering and pecuniary loss consequences – injury to both shoulders – whether the consequence of either injury was at least “very considerable” – whether the injuries to the right and left shoulders could be aggregated.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave pursuant to s134AB(16)(b) of the Act for the plaintiff to commence a proceeding to recover pain and suffering damages in respect of injuries suffered by him in the course of his employment with the first defendant after 20 October 1999.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P G Nash QC with Ms A M Malpas | Victorian Compensation Lawyers |
| For the Defendants | Ms H Donmez | Minter Ellison |
HIS HONOUR:
1 Duran Yuce alleges that he suffered injuries to his shoulders in the course of his employment with first defendant. He seeks the leave of this Court to issue proceedings to recover pain and suffering and pecuniary loss damages in respect of those injuries. His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that he has suffered a serious injury, as that term is defined in s134AB(37) of the Act.
2 Mr Yuce must establish that he has suffered a “permanent serious impairment or loss of a body function”. The body function the subject of the application is that of one or other or both of his upper limbs. The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[1]
[1]Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33 at paragraphs [18] to [19]
3 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering or pecuniary loss consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[2]
[2]Section 134AB(38)(c)
4 Any pecuniary loss consequences suffered by Mr Yuce are to be assessed in accordance with s134AB(38)(b), (e), (f) and (g) of the Act.
5 The issues to be determined are:
(a)What injuries has Mr Yuce suffered to his shoulders or either of them?
(b)Can his pain and suffering or loss of earning capacity consequences relating to such injuries be fairly described as “at least very considerable”?
(c)Has Mr Yuce suffered a loss of earning capacity of 40 per cent or more when measured in accordance with s134AB(38)(e), (f) and (g) of the Act?
(d)To what extent can the injuries to Mr Yuce’s left and right shoulders be aggregated in order to determine the abovementioned issues?
Background and development of symptoms
6 Mr Yuce is aged forty-six. He was born in Turkey and educated to the equivalent of Year 8.
7 After leaving school, he worked as a cabinetmaker for a number of years before serving in the army for 18 months. In 1988, at the end of his national service, he migrated to Australia.
8 He has had two jobs since arriving in Australia. From 1988 until about 1992, he worked as a robot/machine operator. In 1995 he commenced employment with the first defendant as a machine operator. He remained in that employment until the first defendant closed its factory in December 2008 at which time Mr Yuce was retrenched.
9 His work with the first defendant involved working on a rubber-extruding machine. I accept that the work was heavy and that he was frequently required to manipulate and manoeuvre heavy sections of rubber weighing 30 to 40 kilograms. On or about 11 September 2006, while removing rubber jammed in a machine, he developed pain in his right shoulder. He immediately stopped work and reported the injury to his employer.
10 He consulted a medical practitioner described as the company doctor on a number of occasions. He was unable to identify that doctor but it would appear that it was Dr Malcolm Brown, whose report was tendered.
11 Soon after the incident, the first defendant arranged for Dr Brown to examine Mr Yuce at the Northern Hospital. He soon returned to work and performed his normal duties. He relied more on his left arm because of the problems he was experiencing with his right arm. Mr Yuce’s evidence was that he soon began to develop pain in his left shoulder.
12 On 22 January 2007, Mr Yuce was involved in a motor vehicle accident. In a Transport Accident claim form he listed his injuries from the accident as shock, back pain, neck pain, and muscle pain in left infra-scapula area.
13 In evidence, Mr Yuce confirmed he had experienced some pain in his neck and at the back of his left shoulder. He attended upon his general practitioner, Dr Saban of Meadow Heights, who had been his GP since about 2000 when he moved to that suburb. Dr Saban is Turkish speaking.
14 Dr Saban certified Mr Yuce as being unfit for any work duties on three occasions covering the period between 22 January and 24 February 2007. No evidence was led from Dr Saban.
15 In his first affidavit, Mr Yuce stated that injuries sustained by him in the car accident did not cause any significant interference with his capacity for work. This is inconsistent with Dr Saban’s certifications that he was unfit for any duties for at least one month afterwards.
16 Mr Yuce stated that his shoulder recovered to the state it was in before the motor vehicle accident.
17 On or about 24 March 2007, he was again removing jammed rubber from a machine and suffered increased pain in his left shoulder. He again sought treatment from Dr Brown. There is no evidence as to whether he saw Dr Saban following this second incident.
18 Thereafter, he returned to work on light duties.
19 In February 2008 Mr Yuce commenced seeing Dr Dominic Yong. He said his symptoms were not improving and he was looking for a new doctor. His evidence was that Dr Saban would not deal with WorkCover matters.
20 Dr Yong referred him to an orthopaedic surgeon, Mr Pullen, at that time.
21 In April 2008, he underwent surgery to his left shoulder by Mr Pullen – an arthroscopic left sub-acromial decompression. He was absent from work for about a month and then returned to work and resumed light duties.
22 I note Mr Yuce’s evidence that his light duties generally consisted of about one-and-a-half hours of forklift driving per shift. He said he did little else for the balance of the shift and that those duties continued until he was retrenched in December 2008 when the first defendant’s factory was closed. The history taken by a physiotherapist, Mr Lenssen, in November 2008 was that he was working 12‑hour shifts, three days per week, consisting of 4 hours of normal/pre-injury duties and 8 hours of forklift driving. This history is at odds with the information contained in the various reports of Nabenet dated from April and November 2008. I note the history taken by Mr Karamanos, psychologist, in October 2010, that Mr Yuce’s light duties consisted of some forklift driving, labelling of tyres and general office work. I consider that that history is more likely to be correct. I consider that his duties were light and that it could not be said that he was employed in any genuine job with the first defendant following the surgical procedure of April 2007.
23 Mr Yuce has not consulted Mr Pullen since September 2008, more than four years ago.
24 He ceased seeing Dr Yong in December 2008 and commenced seeing Dr Sheriff as his general practitioner in January 2009. He gave no reason for the change.
25 Dr Sheriff appears to have treated him conservatively with prescription of Panadeine Forte for pain and Nexium for stomach problems.
26 With regard to his right shoulder, he underwent ultrasound scans in September 2006 and April 2009, and an MRI scan in August 2012.
27 With regard to the left shoulder, he underwent an ultrasound scan in October 2007, an injection under ultrasound guidance in November 2007, and MRI scans in May 2007, May 2009 and August 2012.
28 The 2012 MRI scans were requested by a surgeon, Mr Peter Mangos, who had been asked to examine him by his solicitors. No evidence was led from Mr Mangos.
29 In January 2009, Dr Sheriff took a history from Mr Yuce that he had been treated with numerous cortisone injections. There was no evidence as to who had administered these.
30 He takes Panadeine Forte medication for pain.
31 In 2010, his general practitioner referred Mr Yuce to Mr Karamanos for psychological appraisal and for pain-management treatment. He continues to see him on a monthly basis.
32 He has undergone physiotherapy and attends for hydrotherapy treatment weekly at present.
33 Mr Yuce has not sought employment since his retrenchment in December 2008.
Diagnosis of injuries
34 The 2006 ultrasound of the right shoulder was reported as showing moderate thickening of the sub-acromial bursa and also of the contralateral bursa consistent with bursitis. The 2009 ultrasound was reported as showing minimal thickening of the subdeltoid-subacromial bursa with mild bursal impingement during abduction.
35 The April 2007 ultrasound of the left shoulder was reported as showing a tender acromio-clavicular (AC) joint. The 2007 MRI showed mild subacromial bursitis, AC joint degenerative arthropathy with impingement upon the musculo-tendinous junction of the rotator cuff secondary to inferior osteophytic spurring. There were features of mild adhesive capsulitis. The 2009 MRI was reported as showing signs consistent with tendinopathy within the supraspinatus tendon but no other abnormality.
36 The 2012 MRI scans of the left and right shoulders were initially reported as showing, effectively, no abnormality. These scans were later shown to Dr Anthony Kam, a consultant radiologist, whose report was tendered.
37 With regard to the right shoulder, Dr Kam considered that the 2012 MRI demonstrated non-specific AC joint arthropathy which, in his opinion, could be symptomatic and painful.
38 With regard to the left shoulder, he considered the scan showed similar but more advanced findings together with mild tenosynovitis along the distal left biceps tendon and thickening and hyper intensity at the sub-acromial bursa. These, he said, may be painful and symptomatic.
39 Dr Kam opined that these bilateral findings may be related to a previous overuse injury or be age-related wear and tear. However, he did not examine Mr Yuce nor take a detailed history of the development of symptoms.
40 I have read the reports tendered by Mr Yuce – Mr Pullen, Dr Sheriff, Dr Brown, Mr Offlay, Mr Hahne, Mr Karamanos, Dr Yong, Mr Brearley, Professor Myers, and Mr Polke – together with the reports tendered by the defendants – Dr Baker, Dr Barton, Mr Gale, and Dr Mutton.
41 I have also read reports from psychiatrists, Professor Jones, Dr Kornan, and Dr Kaplan, tendered by the defendants purportedly as being relevant to issues of disentanglement of consequences of physical injuries and secondary psychological injuries. The issue was not referred to by counsel for the defendants in her final address. I do not consider the issue of disentanglement is of any importance in this matter. I find that symptoms complained of by Mr Yuce are explained by his physical injuries.
42 I am satisfied that Mr Yuce suffered an injury to both shoulders in the course of his employment with the first defendant.
43 With regard to both the right and left shoulders, I consider that Mr Yuce suffered injuries best described by Mr Brearley in his report of 7 November 2012, as comprising AC joint arthropathy (joint disease or abnormality) with subacromial bursitis due to mild impingement of the rotator cuff secondary to subacromial osteophyte formation. In respect off the left shoulder I accept there is evidence of mild capsulitis (stiffening of the joint).
44 I consider that those injuries were caused by, or at least significantly aggravated by Mr Yuce’s employment with the first defendant which involved repetitive heavy lifting.
45 Counsel for the defendants submitted that I should not be satisfied that the left shoulder injury was related to his employment. She pointed to the references to pain at the back of the left shoulder following the car accident in January 2007 and to the failure to call evidence from Dr Saban. However, I accept that Mr Yuce had returned to his full duties with regular and repeated heavy lifting for more than a month before the incident on 24 March 2007. There was no evidence pointing to ongoing symptoms relating to the car accident. I accept, on the balance of probabilities, that he had recovered from any problem of significance relating to the car accident by that time.
Consequences of injuries
46 With regard to the right shoulder, whilst I accept that Mr Yuce may experience some degree of pain and discomfort, I am not satisfied that the consequences of this injury could fairly be described as more than significant or marked.
47 In coming to this view I have taken into account:
(a) Dr Brown, who initially saw Mr Yuce for his right shoulder problem in 2006, makes no mention of any continuing problem when he examined him in 2007.
(b) Dr Young, who saw Mr Yuce regularly throughout 2008, was given no history of any right shoulder issues and did not treat him for any such condition.
(c) Virtually all doctors reported that examination of the right shoulder was unremarkable or demonstrated relatively minor reduction in range of movement.[3]
(d) Counsel for Mr Yuce conceded in submissions that the right shoulder would not, on its own, satisfy the “very considerable” test.
[3]Dr Mutton at PCB 181; Mr Polke at PCB 175; Mr Gale at PCB 167; Mr Myers at PCB 144; Mr Brearley at PCB 134; Mr Hahne at PCB 96; Mr Oflay at PCB 94; Dr Baker at DCB 17.
48 With regard to the left shoulder, I have come to the conclusion that the injury suffered to it is a serious injury as defined and that the consequences of it for Mr Yuce are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.
49 The evidence (including the affidavits of Mr Yuce, his wife and his son) satisfies me that the consequences of the injury for Mr Yuce are:
(a) He experiences constant pain in the shoulder, which radiates to his arm;
(b) He is required to regularly take strong analgesic medication in Panadeine Forte to assist with his pain;
(c) His sleep is regularly disturbed by his pain;
(d) He is greatly restricted in the domestic activities that he can carry out; he relies on his wife and children to perform these activities;
(e) His libido has been adversely affected by his pain;
(f) The range of employment activities that he is able to perform is considerably reduced in that he is unable to carry out activities involving heavy lifting, pushing and pulling of items, and work above shoulder height;
(g) He is unable to engage in physical, social sporting activities with his sons as he used to do;
(h) He becomes angry and frustrated as a consequence of his pain and inactivity.
50 I find that these consequences for Mr Yuce satisfy the “more than very considerable” test.
51 The defendants tendered DVD film depicting Mr Yuce on 30 March and 24 April 2011 and which had been shown to him in cross-examination. The purpose for showing the film (which took in excess of an hour) was not made clear in cross-examination or in counsel’s final address. Mr Yuce was shown walking relatively short distances, at a leisurely pace, at most times with his hands in his pockets. He undertook no actions involving energetic use of either hand or arm. I do not consider that the film cast doubt on Mr Yuce’s credit, or that it demonstrated that he had greater use or range of movement of his shoulders than he had deposed to in his evidence, or than he had demonstrated to examining doctors.
52 Counsel for Mr Yuce submitted that even if I were not of the view that either shoulder injury, when considered separately, amounted to a serious injury, it would be permissible to aggregate the consequences of the two injuries in order to determine whether a serious injury had been suffered. In view of my finding that his left shoulder injury is a serious injury it is not necessary to determine this issue. However, I do consider that, in assessing the consequences of the left shoulder injury, I am entitled to take into account that those consequences are likely to be greater for Mr Yuce that might be the case if he had no problems at all with his right shoulder.
53 In respect of Mr Yuce’s claimed loss of earning capacity, I am not satisfied that he has established a loss required by reference to s134AB(38)(b), (c), (e), (f) and (g) so as to constitute a serious injury with respect to loss of earning capacity.
54 Mr Brearley and Professor Myers have expressed opinions, in effect, that Mr Yuce has no capacity for work.
55 Mr Brearley noted that Mr Yuce had been doing forklift driving and recorded no history of any difficulties in performing that work.[4] It is unclear as to why he did not consider Mr Yuce could perform such work.
[4]PCB 133
56 Similarly, Professor Myers did not consider that Mr Yuce was a candidate for re‑employment.[5] He does not appear to have taken any history of Mr Yuce’s forklift qualifications or experience.
[5]PCB 143
57 I take into account Mr Yuce’s limited education and the fact that English is not his first language. I accept that he would not be suited to sophisticated administrative work.
58 I also accept that he would not be suited to employment involving heavy manual tasks or activities involving repeated work above shoulder level.
59 In 2010 and 2011, Dr Sheriff was certifying Mr Yuce as fit for alternate light duties. Dr Sheriff suggested vocational retraining.[6] He expressed those views in January and August 2010.[7] In September 2011 he was still certifying him fit for alternative light duties but was wondering if he was fit for any work in that he was “work deconditioned”.[8] In November 2012 Dr Sheriff said he was still certifying him fit for alternative light duties but also said he had no fitness for any work in that he was work deconditioned and was still experiencing severe pain in his shoulders.
[6]PCB 76, 77
[7]PCB 81
[8]PCB 84
60 In September 2008[9] and in February 2010,[10] Dr Yong considered Mr Yuce was fit to work as a forklift driver for pre-injury working hours.
[9]DCB 2
[10]PCB 121
61 In November 2011 Mr Polke considered that Mr Yuce had a capacity for alternative duties which did not involve heavy lifting, pulling and pushing, or repetitive activities above shoulder height. He considered he was fit to work as a forklift driver.[11] He also thought Mr Yuce was capable of working in a number of other positions identified in vocational assessment reports provided to him.
[11]PCB 176
62 I have also noted the opinions of Dr Baker[12] and Mr Lenssen[13] to the effect that Mr Yuce had a work capacity when examined in 2011 and 2008 respectively.
[12]DCB 19, 21-2
[13]DCB 27
63 Mr Yuce obtained a licence to operate a forklift and worked in that capacity with the first defendant as part of his return to work on modified duties. Mr Yuce made no mention of those duties in his affidavit material. In his oral evidence he did not describe any difficulty in operating a forklift. There was no suggestion that such duties involved working above shoulder level or vigorous pushing, pulling or lifting.
64 Mr Yuce continued working on those duties up until the date of the closure of the first defendant’s premises and his retrenchment in December 2008. He has made no attempt to find work or to trial any duties since.
65 Although I consider that Mr Yuce has a reduced work capacity as a consequence of his left shoulder injury, I do not consider that he has no work capacity. I do not consider that he has discharged the onus upon him of proving that he has suffered a loss of earning capacity of 40% or more when calculated in accordance with s134AB(38).
66 I consider he is likely to be able to work as a forklift driver. I note the history referred to in the Nabenet report of 28 October 2008 that he was working his pre-injury hours predominantly forklift driving;[14] that he was motivated to continue in that role until the factory closure;[15] that he was working his pre-injury hours as a forklift driver in September 2008 and Dr Yong considered him fit to do so; and that in September 2008, Mr Pullen noted he was returning to his more normal duties and encouraged him.[16]
[14]DCB 73
[15]PCB 78
[16]PCB 73
67 I do not accept that in the latter part of 2008 Mr Yuce was only driving a forklift for one-and-a-half hours per day as he maintained in his oral evidence.
Conclusion
68 For the reasons set out above, I am satisfied that Mr Yuce has suffered a “serious injury” as defined in the Act with respect to pain and suffering.
69 I am not satisfied he has suffered a serious injury with respect to loss of earning capacity.
70 There will be leave pursuant to s134AB(16)(b) of the Act for Mr Yuce to commence a proceeding to recover pain and suffering damages in respect of injuries suffered by him in the course of his employment with the first defendant after 20 October 1999.
71 I shall hear the parties in respect of orders sought as to costs.
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