Poole v Churches of Christ in Queensland [2018] VCC 2013

1. The plaintiff was employed with the defendant in an aged-care facility for only a short period of months before being injured at work on 3 September 2015. The plaintiff initially worked with the defendant in the kitchen as a casual. She commenced employment in June 2015. Approximately three weeks before her injury she was offered a permanent part-time cleaning role three days per week. In this role, she performed a number of manual duties including lifting heavy soiled nappy bags which she would place in a dumpster. She was engaged in this task on 3 September 2015 when she lifted one such bag and experienced pain. She saw a doctor that day. She was prescribed anti-inflammatories and Panadeine Forte. Dr Overton, her regular general practitioner, subsequently organised investigation, including ultrasound that revealed a supraspinatus tear, together with a suggestion of adhesive capsulitis (frozen shoulder).

What is the injury and what is the impairment produced in consequence?

1. The plaintiff says her right shoulder injury has produced an impairment to the body function, namely her right arm. No issue was taken with this characterisation of injury and impairment by the defendant.

1. The defendant's position is straightforward. It accepts that the plaintiff suffered a compensable injury to her right shoulder on 3 September 2015 but it denies that the plaintiff has a serious injury. It says the plaintiff only suffered a soft

tissue injury and it has resolved. To the extent the plaintiff has limitations or is suffering, the cause is psychological and does not satisfy the test for a serious injury. It says, additionally, that if the plaintiff still is affected by an organic injury, she has not separated it out from her psychological condition to enable an assessment by the Court.

1. The plaintiff is right hand dominant. She complains of ongoing right shoulder pain and a loss of range of motion. The plaintiff, in July this year,1 has described her range of movement and the accompanying discomfort to Dr Robyn Horsley, occupational physician, whilst resting as 3 to 4/10 but with activity rising to 8 to 9/10. She avoids activities such as overreaching, pushing, pulling, above- shoulder activities, lifting and static postures involving the right shoulder girdle. She described the discomfort radiating from the joint of the right shoulder into the right scapular, into the lateral aspect of the arm, into the forearm and into the hands.2

1. The plaintiff was in her late 30s at the time of her injury in September 2015 and is now only forty-one years of age. She is a mother to four children, three of whom remain at home and are aged nine, ten and seventeen years. Her marriage ended in 2014.

1. The plaintiff's career history is indicative of a woman who has proved herself adept and motivated in undertaking a variety of tasks. Following completion of her schooling to Year 11, she obtained a Certificate in Office Practices. She began a Diploma in Juvenile Justice and Child Protection in 2002 but that course was cancelled some eighteen months into it as a result of reduction in government funding and she never gained her qualification. She has had a canteen management role with the Dandenong Baseball Club on a voluntary basis and therefore has obtained and maintained food handling and responsible

1. Plaintiff's Court Book ("PCB") 93 at 98
2. The medical reports descended into areas of effect that were not pursued in the application

service of alcohol qualifications. She has worked in butcher shops.

1. In 2017, the plaintiff returned to study and undertook a Certificate III in Office Practices and a Certificate 111 in Community Services undertaken three days per week. She completed this course. In August 2018, she completed a Certificate IV in Youth Services on a part-time basis, doing face to face interviews and typing up reports. The plaintiff is literate and has good computer skills and can touch type at 60 to 70 words per minute. She is familiar with Microsoft Office Word, Excel and PowerPoint, and she can navigate social media.3

1. The plaintiff relies on an impairment of the dominant right arm arising from the shoulder.4 In the alternative, the plaintiff presses a claim for a mental condition which, as counsel for the plaintiff said, was essentially a defensive position adopted in response to the defendant's contention that a body of medical opinion states that the plaintiff's pain is generated at least in part by a psychological condition which she has failed to disentangle from the physical injury.

The approach taken to the application - pain and suffering consequences

1. In order to succeed, the plaintiff needed to establish that the consequences of her right shoulder injury are "at least very considerable". She needed to show that her pain and suffering consequences and the pecuniary disadvantage consequences when separately assessed meet the very considerable test. The approach I adopted may be expressed succinctly: first, I considered whether there is a substantial organic basis for the pain and suffering consequences relied on by the plaintiff. I was satisfied of this. I then asked whether the pain and suffering consequences satisfied the statutory criterion. I was satisfied they do. Satisfied by both of these matters, it did not become necessary to "disentangle" the physical contributions to the plaintiff's pain and

1. Report of Dr Robyn Horsley dated 2 July 2018 PCB 93 at 95
2. Plaintiff's counsel did not rely on other impairments

1. The plaintiff swore three affidavits, the third of which is largely relevant to her loss of earnings claim. The other affidavits addressed the manner and extent to which she is adversely affected by sleep disturbance due to rolling over onto her affected limb during the night, with the result that she is left drowsy, a situation aided and abetted by the narcotic medications she continues to be prescribed by Dr Overton. Dr Overton has also reported that as a result of the medications prescribed to the plaintiff for her pain management, she has developed significant dental problems in the form of teeth grinding when sleeping from chronic pain, and has been provided with a mouthguard.

1. The plaintiff says that as a result of her injury, she has been, and continues to be, inhibited in the amount of cooking she can do for herself and her children at home and her lack of dexterity in food preparation, including the cutting of vegetables and other domestic necessities. She has lost her deep and familial connection with the Dandenong Baseball Club as a result of her physical limitations and the low morale her pain has engendered. The defendant suggested to the plaintiff that the loss of contact with the baseball club is the natural consequence of her children playing in different clubs in recent times. That is a part of it to be sure, but I note and accept, the plaintiff's evidence in her affidavit about the club, and in particular, the fact that whereas this winter her eldest son left the club and went to another, and her younger son did not play at all, this was contributed to by her feeling uncomfortable at the club because of her inability to be involved in the work of the canteen and other activities to the considerable extent she had been before the injury.5

1. The plaintiff has undertaken physiotherapy since 2017. She sees her physiotherapist, Mr Becker, twice a week for pain. Dr Overton continues to treat

1. Affidavit of the plaintiff dated 24 October 2018, paragraph [40] and affidavit of Justin Colquhoun affirmed 30 October 2018

the plaintiff and she attends on him once to twice per month. Dr Overton prescribes medicines for the plaintiff's pain including Imovane, Targin and Endone. He issues her certificates of capacity, the most recent of which limits the plaintiff to suitable alternative employment of not more than 10 hours per week.6

1. The initial diagnosis attributed to the plaintiff's injury was a partial-thickness supraspinatus tear with features of adhesive capsulitis. Radiology by way of ultrasound and MRI scan of the right shoulder and cervical spine in September/October 2015 identified as much. I am satisfied this remains the plaintiff's proper and continuing diagnosis.

1. Mr Raleigh is an orthopaedic surgeon. He examined the plaintiff in November 2015 and although he thought she did not have "much of a capsulitis" his opinion was difficult to formulate due to the inability to properly examine the plaintiff because of irritability she experienced on movement. Nonetheless, by December 2015, Mr Raleigh felt sufficiently confident for the plaintiff to undergo an injection of cortisone. He suggested hydrodilatation. He excluded surgery as an appropriate course.7 Hydrodilatation occurred on 11 January 2016, and she also had hydrotherapy.

1. Mr Jacobson is an orthopaedic surgeon whose report dated 18 March 2017 noted that on examination of the plaintiff on 17 March 2017, she had significant hypersensitivity about the right shoulder, and he referred to scans that demonstrated partial tears of the right supraspinatus (rotator cuff) tendon, as well as some subacromial bursal fluid and adhesive capsulitis. He performed manipulation under anaesthetic at Knox Private Hospital on 19 April 2016 and observed the plaintiff to have only a mildly reduced range of motion under anaesthetic. Mr Jacobson saw the plaintiff post operatively on 9 June 2016 and

1. Certificate of Capacity dated 10 September 2018 at Defendant's Court Book ("DCB") 101-2
2. Report dated 11 December 2015 at PCB 55

she reported ongoing pain in the right shoulder, as well as some right arm pain and numbness in her hand. He diagnosed right shoulder adhesive capsulitis. He said that the plaintiff has been unable to use her right arm for lifting or overhead activities since the time of her injury and that being right handed meant this had contributed a significant limitation on her ability to perform her usual occupation.

1. Mr Michael Shannon is an orthopaedic surgeon. By way of a report dated 26 April 2017 following examination of the plaintiff on 20 April 2017,8 he said that the plaintiff had a major restriction of all movements of the right shoulder; however, he did not exclude adhesive capsulitis as a valid explanation for her presentation and relevantly, he reported that the plaintiff has "major restrictions of all movements of the right shoulder". He diagnosed a Chronic Pain Syndrome following a "soft tissue injury right shoulder". He reported that whether the diagnosis of adhesive capsulitis is correct (the limited pathology and the plaintiff having a near normal range of movement under anaesthetic), she "does appear to have major restriction of movement whether this is due to capsulitis or pain or fear avoidance".

1. Dr Joseph Slesenger is a specialist occupational physician. He prepared a report for the defendant's solicitors following examination of the plaintiff on 26 April 2018.9 He noted the plaintiff's right shoulder account of symptoms as consisting of ongoing pain with a restricted range of motion and with the pain worse with activity, particularly forward reaching, over-shoulder reaching and lying on the right side. He noted her pain as worse in cold weather. He observed the plaintiff's presentation as to several of the affected functions in regard to the right shoulder. He noted the absence of wasting and that on palpation there was global tenderness around the right shoulder. He reported on a range of movements by way of flexion extension, internal rotation, external rotation and abduction, and he noted that the plaintiff's "right shoulder

1. Report dated 23 April 2017 at DCB 23
2. DCB 39

movements were noted to improve during the narrative and whilst manoeuvring on the couch".10

1. Dr Slesenger reviewed the documentation he had to hand, including reports from Mr Raleigh and Dr Lee. He noted the imaging that showed evidence of a supraspinatus tear and of adhesive capsulitis. He made mention of the comment made by Mr Jacobson of manipulation under anaesthetic, the report of Dr Overton of 3 November 2017 recommending a CT-guided steroid injection and the plaintiff's neurosurgical review. He noted the report by Mr Jacobson of 9 December 2017, who confirmed that brachial plexus imaging of the right shoulder demonstrated no significant nerve inflammation or irritation but evidence of supraspinatus tendinosis with evidence of capsulitis in the right shoulder.

1. In his report dated 9 October 2018,11 Dr Slesenger expressed the opinion that the plaintiff may have suffered a soft tissue injury to the cervical spine and right shoulder but was of the opinion that the impairment has resolved.12

1. Dr Umberto Boffa is an occupational physician and in the second of two reports he provided to the defendant in August 2017,13 he wrote that the plaintiff is suffering a "persistent right shoulder adhesive capsulitis (frozen shoulder)" and that whilst she does not have a capacity for pre-injury duties and hours, he recommended a graduated return to work that involved modified one-armed pre-injury duties avoiding repetitive right shoulder elevation, pushing, pulling, lifting or carrying more than 2 kilograms in the right hand, and that the same limitations applied for a graduated return to work with alternative duties. He recommended consideration of a suprascapular nerve blockage and that the plaintiff may ultimately require surgical capsular release, followed by continued physical rehabilitation.

1. DCB 46
2. DCB 54
3. DCB 65
   1. Mr Miller is an orthopaedic surgeon. He provided a medico-legal report for the plaintiff dated 24 September 2018.14 On examination, he noted marked irritability during shoulder movement. He recounted Mr Jacobson's operative findings that included a mildly reduced range of motion while anaesthetised. Mr Miller considered the plaintiff's ongoing symptoms in the right shoulder are likely to be due to "referred pain from the cervical spine, capsulitis, frozen shoulder and manifestation of a regional pain syndrome". He believed the prognosis for the shoulder as "likely to be good". He accepted that the plaintiff's adverse mental state reaction complicated the assessment and management of her condition and that she would benefit from additional assessment by a psychiatrist. He thought the plaintiff will require ongoing conservative treatment. He excluded surgery. He thought that the condition of the right shoulder would cause difficulty with work involving repetitive right arm actions, use of the right arm in the above shoulder position, and lifting of weights of more than 10 kilograms. He thought it likely that the development of a Chronic Regional Pain Syndrome further impacts the plaintiff's capacity for work and that these restrictions "are likely to be permanent". He did not think the plaintiff could return to her pre-injury duties on any significant full-time or part-time basis.

1. Dr Doig is a specialist in orthopaedics and trauma. He examined the plaintiff, and in his report dated 9 May 2018,15 described the plaintiff as having suffered a soft tissue injury of the dominant right shoulder which had not responded to multiple treatment modalities. He noted the plaintiff would go on to develop a chronic pain condition requiring significant amounts of analgesics. He recommended the plaintiff see a pain specialist. He did, however, identify restrictions appropriate to use of the plaintiff's dominant right arm.

1. Dr Strauss, psychiatrist, examined the plaintiff at the request of her solicitors,

and in an opinion dated 26 June 2018, wrote that "from a purely psychiatric point of view she has developed a psychological reaction in the form of a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood". Dr Strauss regarded the only cause of the plaintiff's psychiatric problem is her physical condition. He did not believe that the plaintiff's pain was accounted for on psychological grounds. He thought her prognosis was guarded, and so long as her physical problems continued, she would also suffer from a psychological reaction.

1. Mr Pereira, is a psychologist who provided a report for the plaintiff dated 2 October 2018.16 He noted secondary psychological symptoms comprising rumination, fatigue, insomnia, sleep apnoea, bruxism, becoming easily overwhelmed, feelings of frustration/agitation, chronic pain and worries about her future employability and finances; however, he concluded that from a purely psychological perspective, that the plaintiff was able to perform her pre-injury duties on a full-time basis. He thought the plaintiff psychologically capable of performing suitable employment in full-time or part-time capacities and he said that the plaintiff's chronic pain is also "reasonably likely to impact upon her choice of return to work options".

1. Dr Nicole Phillips is a consultant psychiatrist. In a report dated 15 May 201817 prepared for the defendant, she diagnosed the plaintiff as suffering from a Major Depressive Disorder and Somatic Symptom Disorder (Chronic Pain Disorder) but did not regard her mental condition inhibiting something of a return to work capacity in other than her pre-injury duties; however, she tellingly reported that although the plaintiff does have some work capacity to perform alternative duties with an alternative employer but not her pre-injury duties, this was "only because of her physical incapacity, not her psychiatric incapacity". She further said, in response to questions asked, that the "barriers to her returning to work at her current workplace are predominantly her physical incapacity, not her

psychiatric incapacity. Resolution of these barriers cannot be achieved as it appears her shoulder disability is chronic.18"

1. Associate Professor Varma is a consultant psychiatrist and in her report to the defendant of October 2017, expressed an opinion that the plaintiff suffers no incapacity for work due to a psychiatric condition and labours from no more than a mild psychological disorder.19

1. I am satisfied that the underlying physically-based injury to the plaintiff's right shoulder found to exist in September 2013 has serious consequences to the plaintiff and is still organically based. I am positively persuaded that the account given by the plaintiff of the physical effects to her from the right shoulder injury meets the statutory test.

1. The necessity that arises on occasion to "disentangle" the organic from the non- organic is important but on other occasions it can be distracting. Certainly it is not always the case that the evidence in an application for leave to commence proceedings for serious injury at common law will demand it.20 As the Court of Appeal has said in Noori v Topaz Fine Foods Pty Ltd:21

"... no question of 'disentanglement' arises under para (c) of the definition of serious injury. As the decisions of this Court makes clear, - 'disentanglement' is a task which arises - if at all- only in relation to para

(a) of the definition. That is, where the application is based on the 'permanent serious impairment or loss of a body function', the court is

obliged - by s 134AB (h) - to exclude from consideration 'the

psychological or psychiatric consequences of a physical injury.' Where necessary, that will require the 'disentangling' of the psychological

consequences of the injury from the physical consequences."

1. The Court of Appeal in Noori went on to say that in relation to a claim under paragraph (c ), by way of contrast, the Court is able to take into account both the psychological or psychiatric consequences of a physical injury and the physical consequences of a mental or behavioural disturbance or disorder. The

1. PCB 124
2. DCB 34
3. See Maxwell ACJ in Meadows v Lichmore (supra)

21 [2018] VSCA 323

defendant submitted that this is a case that calls for disentangling. I note that the defendant argued that the right shoulder injury has resolved, therefore, on that basis, there would be no need for disentangling; however, I am not satisfied the physical injury has resolved and instead I am satisfied there remains currently, and likely permanently, an organic right shoulder impairment. I think this is a case where the concentration on the supposed need to disentangle has been distracting and that is because I am satisfied that even accepting that the plaintiff has a chronic pain syndrome or somatic symptoms they are not themselves separately the cause of the debilitating consequences and restrictions that impair the plaintiff. I am not satisfied that her mental condition overlaid on her organic condition gives rise to the consequences and restrictions that the plaintiff suffers because of the shoulder injury and that I am satisfied about.

1. Had the plaintiff's claim under for her physical injury failed, then it would not necessarily have followed that the plaintiff would have succeeded under the alternative claim. Had it been necessary for me to decide the claim, I would not have been satisfied the plaintiff established a loss of earning capacity of 40 per cent due a severe mental disorder. The psychological evidence relied on by the plaintiff and the defendant do not support it.

1. Although I am assisted by, and even guided by, the opinions of those who have treated and commented on the plaintiff's state, both physically and mentally, I am not bound by any one opinion but in this case, I am persuaded of the physical basis for the plaintiff's presentation due to her right shoulder and I have reached that conclusion perfectly able to do so by excluding any psychological effects that impinge on the plaintiff.

1. I am satisfied that the applicable diagnosis is that the plaintiff has a persistent right shoulder adhesive capsulitis (frozen shoulder) caused by the injury of 3 September 2015 and that this remains the substantial cause of her pain and

suffering. In reaching this conclusion, I have been influenced by the report of the treating general practitioner, Dr Overton, to which I have already referred. I have also been influenced by the fact that the plaintiff continues to see her physiotherapist, Mr Becker, with regularity for her pain. Associate Professor Boffa's diagnosis from August 2017 is of "persistent right shoulder adhesive capsulitis". I also gained a favourable impression of the plaintiff in evidence. I accept the plaintiff's evidence that she still labours with substantial pain and restriction caused by the shoulder. I am satisfied that this pain, and the restrictions it brings, impacts her life adversely by comparison with the woman she was and the life she led and enjoyed before the accident which was of a hardworking and energetic woman and mother who derived great satisfaction from her children's extracurricular activities, most notably of course theirs and her involvement in and around the Dandenong Baseball Club. I accept that there is some scope to contest the plaintiff's current physical state. Dr Lee for instance advised the plaintiff's solicitors that the plaintiff's pain would "tend towards a more non-organic basis"22 and this was in some measure influenced by his reading of the report by Mr Jacobsen who observed the plaintiff as having a good range of movement under anaesthesia, indicating a pain effect as opposed to a mechanical effect. Dr Lee did say that the plaintiff has an organic condition in the form of the supraspinatus tear and bursitis.

1. Dr Lee's report provided the gravamen upon which the defendant relies to support the contention that there is an organic basis overlaid with some psychological factors; however, I am satisfied that the organic condition is causing consequences to the plaintiff that are readily identifiable and, to the extent the plaintiff's presentation to Dr Lee did not match the presence of a supraspinatus tear and bursitis, this is explicable by the development of the adhesive capsulitis. In my view, that is a reasonably probable account and therefore, in my judgment, the plaintiff's presentation comports within the claim

1. Report of Dr Lee dated 30 October 2018 at PCB 81

made for a serious impairment and is explicable from an organic basis.

Was the Plaintiff's credit undermined by video surveillance?

1. The defendant showed surveillance footage. The defendant submitted that I should hold reservations about the plaintiff's credit as a result of what it depicted. I am not persuaded that the footage reflects poorly on the plaintiff's physical state or her credit. The footage was peculiar in some respects, appearing to have been taken from long distance, making judgments of fine actions performed by the plaintiff difficult, and some periods of footage taken of the plaintiff in supermarket aisles identified edits and otherwise there were times when the camera focussed away from the plaintiff. I found the footage of limited use. It did identify the plaintiff lifting and reaching into a refrigerated cabinet and it was put to her by counsel for the defendant, that if her right shoulder was as painful and restrictive as she claims, one would have expected to see her adopt the use of her body to hold the fridge door ajar and to retrieve the juice containers with the unaffected arm. The plaintiff said, and I accept, that she simply did not think that way. I did not find the plaintiff attempted to obfuscate what was evident in the footage which also included her having driven her children to a baseball field and observing them in their activities and walking seemingly unaffected by restriction or pain and carrying certain unidentified items. The surveillance footage was taken in a period and time of short compass. It was never the plaintiff's evidence that she is inhibited in a manner and to an extent that precludes her from all activities and pursuits. The footage did not amend my opinion of the plaintiff or of the overall and prevailing effects on her of her injury.

1. Counsel for the defendant also submitted in his final address that I should treat the plaintiff's oral evidence under cross-examination in answer to two matters put to her with some scepticism. Specifically, counsel submitted that I should not prefer the plaintiff's evidence of her personal circumstances and ability to work hours in excess of the hours disclosed in the three months prior to her injury as a cleaner, which averaged 25 hours per week. The plaintiff's evidence

was that but for her shoulder injury, she would have endeavoured to work as much as she could because she needed to do so financially. When it was suggested to her by the defendant's counsel that when in the past she had been able to work substantial hours, she had enjoyed the support of her then husband who was at home and not working and therefore could undertake childcare tasks, a resource that she no longer has, and that regardless of the injury, she would not be able to do so because of her family responsibilities, the plaintiff said that financial necessity would dictate her management of work and family. Having listened to the plaintiff and been impressed by her work ethic and desire for betterment, I am satisfied she would.

1. I have analysed the plaintiff's evidence and that of the medical practitioners who have offered opinions on the plaintiff's employability in suitable employment. I find that the plaintiff is not fit for suitable employment. My reasons are because I accept the plaintiff's evidence that whilst she has a residual work capacity and would be capable of undertaking some of the tasks required in the alternative employment of community worker, the employment is not suitable employment as defined in the Act because it would infringe the limitations placed upon the plaintiff by Dr Overton. I prefer and accept the evidence of the long-standing general practitioner, and I reject the opinions of those medicos whose opinions are that the plaintiff is capable of engaging in full-time hours and duties. I have considered as well the plaintiff's evidence that although she does not believe that she can work full-time hours, she has made attempts to find work, including applying for full-time positions. She has not been successful but she said that had it proved otherwise, she would have tried to negotiate a part-time role because of her limitations due to pain. I accept her explanation. In my judgment, the proposed suitable alternative positions contained in the Nabenet Vocational Assessment report dated June 201723 are unrealistic. The report does not address part-time roles or disclose a flexibility in either hours or days

that may be worked in such positions. In addition, and of some value, are the opinion of Mr Miller, who thought the plaintiff's right shoulder condition would cause difficulty with work involving repetitive right arm actions, use of the right arm in the above-shoulder position, and lifting of weights of more than 10 kilograms, and Dr Boffa, who wrote in late 2017, that the plaintiff did not have a capacity for pre-injury duties and hours but recommended a graduated return to work that involved modified one armed pre-injury duties avoiding repetitive right shoulder elevation, pushing, pulling, lifting or carrying more than 2 kilograms in the right hand, and that the same limitations applied for a graduated return to work with alternative duties. Having rejected the defendant's reports that assert the plaintiff's physical injury has resolved and that there is no organic impairment and therefore she is fit for full-time work and full-time duties, the best evidence, on capacity for the same, is Dr Overton. The plaintiff's evidence of the medications she administers for her pain with the resultant lack of sleep and drowsiness and defects in concentration tell against a realistic conclusion that she is capable of suitable employment, including in the role of a community support worker.

1. Whilst I accept the plaintiff's proved capacity to undertake studies and to have been able to adjust and manage the manifestation of pain that arises from the activities connected with the same (by resting from typing reports and going at her own pace), this provides no more than an indication of tolerances; however, a capacity to tolerate pain and manage or remediate the effects of pain in the pursuit of studies, is a different kettle of fish to an assessment to manage the real working world. The plaintiff has lost her capacity for full-time work. I do not regard it as persuasive to take the hours spent by her in part-time studies of about 20 hours a week as an appropriate comparison so as to evaluate her suitability for the range of alternative options relied on by the defendant because as I have said, a studying environment is different to a working environment with all the regularity and reliability the latter demands. I am required to bring a degree of realism to the suggested range of suitable alternative employment

and the plaintiff's capacity to undertake the same. I have had regard naturally enough to the plaintiff's proved capacity to achieve in academic pursuits but the fact that the plaintiff has been prepared to engage in studies and has made efforts to obtain an additional qualification with all of the difficulty that has entailed to her is not a matter that should be told against her in the grant of the application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2):24

"It would be unfortunate, and in our view wrongheaded, if in future such a plaintiff were treated less favourably than another who, being of less strength of character, simply resigned [herself] to [her] injury."

1. I do not accept the defendant's position that the plaintiff has a capacity for full- time duties and hours in suitable employment.

1. I am satisfied that as a result of the right shoulder injury, the plaintiff has suffered, and will continue to suffer, a loss of earning capacity of 40 per cent or more and that this is likely to continue into the foreseeable future. My reasons follow.

Fixing the realistic work hours for the Plaintiff

1. Dr Horsley's opinion is that the plaintiff has a capacity for up to 20 hours' work per week. Dr Overton is certifying the plaintiff for 10 hours. On balance I am satisfied that the plaintiff's realistic hours for work are those certified by Dr Overton.

Why am I satisfied of the Plaintiff's loss of earning capacity?

1. Under the Act, I must determine the gross income that the plaintiff was earning from personal exertion with the defendant during the three years before and three years after the injury and, second, calculate what most fairly reflects the worker's earning capacity had injury not occurred. The determination of the first question calls upon me to look into the plaintiff's past working history. It does not call me to do anything more. The determination of what most fairly reflects

24 [2008] VSCA 260

the plaintiff's earning capacity is to look at the manner and extent that she exploited her capacity to work for the defendant. Is it therefore the fairest reflection to take the earnings for the short period of time the plaintiff was working as a cleaner with the defendant or is the fairest reflection to take a hypothetical analysis based on my assessment of the overall evidence of the plaintiff? I am satisfied this is a case where the actual earnings would produce an unjust result for the following reasons. As the Court of Appeal said in The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop:25

"[55] The actual hours worked by a worker and his or her actual earnings are not always the best evidence of the worker's earning capacity for the purposes of sub-para (ii) of s 134AB (38) (f) of the Act ...."

1. The Court of Appeal identified four scenarios adjudged against the particular circumstances of a case from which the Court will determine for a non- proscribed worker his or her earning capacity. They are:

• the gross income that the worker was earning during the period of three years before the injury

• the gross income that the worker was capable of earning from personal exertion in the three years before the injury

• the gross income the worker would have earned in the three years after the injury, if the injury did not occur

• the gross income the worker would have been capable of earning from personal exertion in the three years after the injury, if the injury did not occur.

1. Counsel for the plaintiff submitted that I should use one of the hypothetical scenarios postulated in _Jessop_26 as opposed to the plaintiff's actual earnings given her short period of employment and given the trajectory of hours that she demonstrated as capable of earning in that period of time. Counsel for the

1. [2014] VSCA 292 per Neave and Kyrou JJA and Ginnane AJA
2. ibid

defendant submitted that I should instead take the average hours derived in the short period that the plaintiff was working as a cleaner with the defendant. He submitted the last fortnight the plaintiff worked reflected an unrealistic picture.

1. In the plaintiff's third affidavit she deposed that the hours she worked up until 17 August 2015 were worked in the kitchen as a casual. The only earnings period to reflect the arrangement the plaintiff was under at the date of injury was her position of a permanent part-time cleaner who was picking up additional hours both working in the kitchen and in the cleaning department. Her final fortnight of 18 to 31 August 2015 was 71 hours. Counsel for the plaintiff submitted that when I consider those hours and the plaintiff's evidence that she hoped the job would become full time and her desire to work as many hours as she could because she was the sole bread winner her capacity to work such hours was feasible by a combination of her children growing older and family assistance to call on as required. The plaintiff said that she made a verbal request of the defendant for full time work. The affidavit made by the defendant's Rebecca Scott is that no record exists of a request. The evidence consisting of the plaintiff earning 71 hours in the fortnight before the injury (35.5 hours a week) put her in a situation that was close to a suite of full time hours, that is, 38 hours per week.

1. I am not satisfied by the defendant's submissions that the earnings relied on by the plaintiff in her last two-week period fail to give a genuine picture of her earning capacity such that the use of the period would be unfair to the defendant or unduly fair to the plaintiff. True it is that the plaintiff worked for only a very brief period for the defendant and but one fortnight that disclosed 71 hours of work and this included penalty rates and allowances of approximately $75 gross per week. Relying on the applicable Enterprise Agreement under which the plaintiff was employed, as at September 2018, the three years after her injury, the plaintiff would have been entitled to a base weekly gross wage of $849.32 excluding any penalties and allowances, equating to $44,166 gross per annum.

The 60 per cent figure therefore is a sum not less than $509.61 gross per week, or $24,499 gross per annum. On the basis that I have assessed the plaintiff to have a residual work capacity and that the most comparable position is that of a community worker, the applicable award rate of pay is between $782.00 gross per week ($20.58 per hour) and $837.49 gross per week ($22.04 per hour). Excluding allowances, earnings of 10 hours per week would yield the plaintiff between $205.80 to $220.40 per week. Assuming 20 hours per week (the hours derived from the assessment made by Dr Horsley), the earnings would yield between $411.56 and $444.80 gross per week.

1. On assessment of all of the evidence, I am satisfied that the plaintiff continues to suffer, and will continue to suffer indefinitely from her injury. I am satisfied that the plaintiff suffers a permanent impairment as a result of the injury.

1. I am satisfied that the plaintiff meets the statutory test for loss of earning capacity.