IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION
F12736250
BETWEEN:
CATERINA LA ROSA
Plaintiff
-and-
WOOLWORTHS LIMITED
Defendant
MAGISTRATE:
Ginnane
WHERE HEARD:
Melbourne
DATE HEARD:
3 & 4 February 2016
DATE OF DECISION:
10 March 2016
CASE MAY BE CITED AS:
La Rosa v Woolworths
MEDIUM NEUTRAL CITATION: [2016] VMC005
APPEARANCES
COUNSEL
SOLICITORS
For the Plaintiff
Mr G. Pierorazio
Arnold Thomas & Becker Pty Ltd
For the Defendant
Ms A. Sheehan
Hall & Wilcox
Catchwords: - “Suitable employment” –worker a long standing employee of defendant - meaning of
“pre-injury employment” - worker had been performing modified duties with employer for a period
of years – importance of defendant adducing evidence of worker’s ability to undertake particulars of
identified job offers – worker’s application for review of decision to terminate weekly payments
upheld
2
REASONS FOR DECISION
HIS HONOUR:
1.
Caterina La Rosa (“the plaintiff”) was an employee of Woolworths Limited (“the defendant”).
2.
The plaintiff having been a recipient of 130 weeks of payments was furnished with a notice
of termination of payments on 13 June 2014 1 with effect from 14 September 2014 but that
as a result of agreement was extended to 8 December 2014.
3.
The plaintiff’s claim is predicated on her having throughout the course of her employment
with the defendant been required to perform duties which were repetitive and awkward
and which placed excessive pressure on her knees with the result that she cumulatively
suffered:
•
production, aggravation, acceleration and/or exacerbation of the degenerative
changes in the left knee;
•
complex tear of the medial meniscus;
•
anterior-cruciate ligament ganglion;
•
loss of medial compartment cartilage;
•
production, aggravation, acceleration and/or exacerbation of degenerative changes
in the lumbar spine;
•
referred symptoms down the left lower limb;
•
consequential psychological injury
4.
The plaintiff said that during the carriage of her employment with the defendant she did
from time to time complain of lower back pain.
5.
As a result of the injury the plaintiff says she has no current work capacity and such
incapacity is likely to continue indefinitely. If successful the plaintiff would be entitled to
weekly payments of compensation at the rate for no current work capacity from 8
December 2014 to date and to continue at law.
6.
The defendant agrees that the plaintiff cannot currently perform the work she had
performed before her injury and the commencement of modified light duties as a “Long Life
Assistant Manager”. The defendant, however, contends that the plaintiff is currently suited
to undertake “suitable employment” and it relies upon the identification of two types of jobs
detailed in an 130 Week Vocational Assessment Report dated 27 May 20142.
The plaintiff’s documentary evidence
1
Ex P2
2
Ex D4
3
7.
In addition to her own testimony the plaintiff relies on the following documentary evidence:

The worker’s injury claim form dated 28 December 2009 signed by the plaintiff that
describes the incident and injury details as “Back, leg, knee” and that in response to
how the injury occurred, is expressed as “aggravation of previous injury, excessive
kneeling and bending”3

Letter dated 13 June 2014 to the plaintiff explaining the decision to terminate her
ongoing entitlement to weekly payments4

Medical reports of Dr Mundae5 to plaintiff’s former solicitors dated 29 July 2014, 5
November 2015

An MRI Left knee 10 April 20116

CT of lumbar spine of 6 September 2013

MRI left knee of 25 March 20157

MRI lumbar spine of 31 August 20158

Report of Mr Hooper dated 26 February 20149

Reports of Assoc. Professor Love dated 19 January and 27 January 2016 10

Report of Mr Brett Jackson Orthopaedic Surgeon dated 28 January 201611

Report of Dr Ingram, Consultant Psychiatrist dated 24 September 201512
The plaintiff’s evidence
8.
The plaintiff lives in Avondale Heights. She is 63 years of age having been born on 1
November 1952. She was born in Italy and came to Australia at the age of 5. She completed
year 8 schooling and then commenced employment with Woolworths. She spent a good
number of years and, by all accounts, a happy period of her working life, with the defendant
at its Highpoint Maribyrnong store.
3
Ex P1
4
Ex P2
5
Ex P3 and P4
6
Ex P5
7
Ex P7
8
Ex P8
9
Ex P9
10
Ex P10
11
Ex P11
12
Ex P12
4
9.
The plaintiff has had previous work injury claims. Mr Simm, an Orthopaedic Surgeon, in a
report to the defendant’s solicitors dated 29 September 201513 furnished the following
historical narrative:
She suffered a number of injuries in the workplace but she could not provide
the precise details from memory. She had back pain, which was presumably
work -related in 1998. She had x-rays at that time and was found to have
early degenerative disc disease, particularly at the L4-5 level.
In the year 2000 she suffered back pain lifting a bag of heat beads. She was
treated conservatively and was off work for six weeks.
She was investigated for pain in the neck and elbows in 2001, when it was
found she had early degenerative disc disease at C5-6
In 2007 she was pushing a faulty trolley when she twisted her right ankle.
She experienced pain in the right ankle and recurrent low back pain and was
off work for several weeks, before returning to work on full-time light duties.
She was performing light duties when she suffered a further injury on 9
December 2009. On that day she had been asked to put data strips on the
shelves of the drinks in the drinks aisle. It was necessary to squat and kneel
to access the lower shelves and she did this over an extended period of time.
She said at the end of that working day her left knee “just went”.
10. On 10 December 2009 the plaintiff consulted Dr Pinto who was then her treating doctor. She
was certified unfit for work and sent for investigation by way of x-ray and an MRI scan. The
MRI of the plaintiff’s left knee revealed cystic changes in the medial collateral ligament. She
was referred to Mr Hooper, an orthopaedic surgeon, whom she first saw in February 2010.
Mr Hooper injected the affected region with local anaesthetic and steroid with no sustained
benefit. On 9 March 2010 Mr Hooper performed a left knee arthroscopy. He found some
early degenerative changes in the patellofemoral and medial joint compartments. The
menisci were intact. He excised a ganglion type cyst from the region of the medial collateral
ligament. Post operatively there was no improvement in the plaintiff’s condition. She
continued to have pain. She returned to work 6 to 8 weeks after the procedure. Her
symptoms persisted and over the ensuing years gradually deteriorated. She went back to Mr
Hooper in 2011. A further MRI scan was performed. Additional changes were noted with a
ganglion cyst in association with the medial meniscus.
11. The plaintiff’s pain was managed with unexceptional pain medication.
12. The plaintiff was referred to another orthopaedic surgeon, Mr Jackson, whom she first saw
on 4 September 201214. Mr Jackson recorded minor changes on examination. The pain was
still mostly over the medial side of the joint radiating laterally and was also associated with
the patella.
13
Ex D5
14
Ex P11 report of Mr Jackson dated 28 January 2016
5
13. Further investigation was undertaken with another MRI scan that showed that the plaintiff
had developed complex tearing of the medial meniscus.
14. Mr Jackson performed a second left knee arthroscopy on 19 March 2013. The operation
report recorded findings of moderate degenerative changes in the medial compartment,
posterior horn tear of the medial meniscus and a ganglion in relation to the anterior horn of
the medial meniscus and anterior cruciate ligament. The operation involved resection of the
posterior segment of the medial meniscus, a chondroplasty of the medial femoral condyle
and removal of the two ganglia using the arthroscopic shaver.
15. Some six weeks post operatively the plaintiff’s pain was continuing and on review on 15
December 2015 Mr Jackson reported “ongoing pain and disability issues” and “an increase in
left knee pain with swelling”. He reported that recent radiology showed “bone exposure
within the medial compartment and extrusion of the medial meniscus which is degenerative”
and he considered the plaintiff will likely require “a total knee replacement” and that her
“left knee osteoarthritis is restricting function in all areas of life”.
16. The plaintiff has not returned to work post operatively.
17. The plaintiff was examined by Dr Duke, psychiatrist on 30 April 2014. He reported the
following:
Miss La Rosa has no Axis 1 psychiatric condition.
Miss La Rosa had complaints of symptoms while working at Watervale
between 2011 and 2013 congruent with a primary adjustment disorder with
mixed anxiety and depressed mood, DSM-IV Category 309.28, but she has
now been off work for some 13 months. The stress source of been removed
and she no longer suffers from any Axis 1 psychiatric condition.
The previously presumed diagnosis has remitted, as one would expect with
the loss of an appropriate stressor. Adjustment disorders do not usually have
duration of more than six months beyond the relevant stressor.
From a narrow psychiatric perspective, there is no impediment.
Miss La Rosa is receiving no psychological or psychiatric treatment and is on
no psychotropic medication. This is appropriate as there is no psychiatric
condition.
From a narrow psychiatric perspective, there is no impediment [to the
plaintiff being currently capable of full-time work in her normal duties as a
long life assistant manager].
18. The plaintiff was seen by Dr Graham, an Occupational Physician, who prepared two reports
some time ago in April and June 2014. He did not conclude the existence of any exaggeration
by the plaintiff on examination although he reported that she was distressed and possibly so
arising from other external factors at work.
19. Dr Graham did not think the plaintiff capable of a return to her normal preinjury
employment as a long life assistant manager. He did think however that she was suited for
“lighter duties”. He recommended that in regard to the same, that such duties avoided
“repetitive bending and lifting, heavy lifting especially from the low level or work with a
6
constantly bent back. She should be able to vary her postures, sitting, standing and walking
about”. He said that in relation to her knee, he “would recommend that she avoid repetitive
squatting and kneeling and minimise the use of steps and stairs”.
20. In his latter report of June 2014, Dr Graham said that he regarded the identified jobs of
“Front desk receptionist (hotel/motel)” and “Betting clerk (e.g. TAB outlets)” suitable “from
the description provided”.
21. Mr Simm, in his report to the defendant’s solicitors dated 29 September 2015, wrote that:
Because of the sensitivity of her knee, no further physical therapy was attempted
after the second arthroscopy. She’s been back to Mr Jackson, who is not
recommended another operation. She attends her General Practitioner on a regular
basis. She is prescribed Panadeine Forte and takes up to six tablets per day. She has
seen a Psychologist or Psychiatrist which is not in any ongoing psychological
treatment. She is not currently on antidepressant medication.
She uses a Voltaren gel on most days. Since the last operation she has tried
acupuncture and some form of knee spray and a massage oil.
She has never been referred to a Pain Management Specialist.
She does not currently have any further specialist follow-up appointments.
Her medical management includes taking medication for non-insulin-dependent
diabetes mellitus and blood pressure.
22. Dealing with current symptoms Mr Simm reported:
As noted above, she suffers from left knee pain, which is getting worse. She also has
severe left-sided lumbar back pain which radiates to the left buttock into the back of
the left thigh. The lumbar back pain has come on since the left knee injury with no
history of any particular precipitating incident. She said “I am frightened that I will
wake up and I won’t be able to walk at all”.
The left knee pain is severe each morning and it greatly limits her activities. She
walks with a marked left sided limp. She is unable to kneel or squat. She has to
negotiate stairs placing both feet on each step. The pain occurs generally over the
front of the knee and is no longer localised to the medial side of the joint. The knee
feels as if it “slips out”. She has no true locking. The knee looks swollen and enlarged.
She has some limitation of knee movement.
The pain and back is present each day. It limits her ability to bend and to undertake
physical activities. She has a marked increase in both back and knee pain after sitting
for 30 minutes. She is not able to bend over comfortably to put on her shoes and
socks. The pain in her back and knees is not aggravated by coughing that she has a
marked increase in pain if she attempts to lift or undertake activities such as
household cleaning. She is not able to mop, vacuum or clean her bathroom. She has
normal bladder and bowel control.
A right knee is satisfactory and she does not currently have troublesome neck or
shoulder symptoms.
7
23. In detailing his with physical examination Mr Simm reported:
She presented as a disabled person suffering from severe pain. She struggled to
stand and walk from my waiting room into my consulting room. She walked with a
very pronounced left sided limp and seem distressed by left knee pain.
She displayed a strong symptom focus and she was quite emotionally labile and
almost tearful at times. New quote on formal evaluation she demonstrated a marked
left-sided and tell chick limp. She declined arise on the toes of the left foot because of
left knee pain. She could rise on the toes of the right foot. She could stand briefly on
each leg. Standing on the left leg aggravated left buttock and knee pain.
Movements were guarded and the range of movement was markedly reduced. She
complained of severe lumbar pain on forward flexion. She flexed a 30° and extended
to 15°. Lateral flexion to the right and left sides was to 20° and rotation to 30°. She
was very sensitive to touch in the lower back and when palpated with only moderate
pressure she withdrew.
Neurological examination of the lower limbs showed no clinical signs of
radiculopathy. She had very brisk reflexes and downward going plantar responses.
There was normal pinprick sensation and no weakness to resistance testing. There
was a tendency to mild global weakness on resistance testing on the left ankle and
toes of the left foot.
As to the left knee there was no swelling of the left knee. There is minor scarring
from previous surgery. Left knee movements were undertaken tentatively. There was
5% of flexion contracture, from which point she flexed a 30° whilst supine. This
marked restriction of knee flexion when supine was due to aggravation of back pain,
not knee pain. When she was seated on the edge of the couch she could flex 110°.
The left knee was stable but stability assessment was associated with a severe pain
response. There was tenderness over the front of the knee, which was not localised.
24. Mr Simm diagnosed the plaintiff in the following terms:
Painful dysfunction of the left knee, which is now probably due to progressive
degenerative pathology in the medial compartment of the knee in association with
an amplified pain and illness response. The most likely diagnosis of the original left
knee pain following the squatting and kneeling at work was that these activities
initiated symptoms from the very early changes of osteoarthritis in the
patellofemoral and medial compartments of the left knee. The first arthroscopic
procedure included excision of a ganglion like cystic lesion from the medial side of
the joint. This would appear to have been an incidental condition, as removal of the
cystic lesion made no difference to the pain, which steadily worsened after that
operation. The persistent symptoms were probably an indication of some
progression of the degenerative changes in the knee. She eventually had an MRI
scan, which showed degenerative tearing of the medial meniscus. This led to the
second arthroscopic procedure, which was almost certainly done for pain from
osteoarthritis rather than pain from the associated degenerative tear of the medial
meniscus. It has been established this type of arthroscopic surgery for degenerative
pathology in the knee may have an adverse effect. There are a number of
8
orthopaedic surgeons who no longer do arthroscopic procedures for degenerative
pathology in the knee. An arthroscopic chondroplasty may have the adverse effect of
damaging the compromised degenerative articular cartilage and lead to acceleration
of the degenerative changes. The most recent MRI scan certainly shows marked
deterioration in the articular cartilage of the medial femoral condyle and she now
has evidence of moderately advanced organic pathology, which could cause
significant knee pain.
She has symptomatic multilevel degenerative disc disease of the lumbar spine. It is
not clear how her current symptoms of this condition relate to the claimed left knee
injury. Her back has been painful on and off for many years and she was on light
duties when she injured her knee. She walks with a most abnormal gait and it is
possible that as a result of this gait there has been some increase in symptoms from
the generative lumbar pathology. As with the left knee condition, there are features
of an amplified pain and illness response. She has referred pain in the buttock and
thigh but no clinical signs of radiculopathy.
She appears to have a substantial emotional disturbance, which needs to be
assessed by a psychiatrist.
25. Mr Simm was asked to by the defendant’s solicitors to consider if the plaintiff was capable of
undertaking suitable employment. He reported:
I consider she is able to undertake suitable employment. She presented a very
amplified picture of pain and disability when she walked into my consulting room but
she seemed to attribute this to the prolonged car journey. I believe she should be
able to undertake a light sedentary work with the facility to stand and move around
after 30 minutes because of a backache if required. She is now attempting to get
onto the Disability Support Pension. The current circumstances indicate there is no
prospect of her returning to work.
26. In particular, Mr Simm was asked his opinion, of whether the plaintiff has a physical capacity
to perform the physical requirements of the jobs identified in the vocational assessment
report from Recovre. Mr Simm reported that if these occupations were sedentary with the
facility to stand and move around from time to time, then one would expect her to have the
physical capacity to undertake them. He went on and said, “although she has moderately
advanced changes in the medial compartment of the left knee, these changes would be
common in the general community and would not usually be a cause for incapacity for
semi—sedentary or sedentary employment. In this case incapacity is contributed to by nonorganic factors which includes a severe adverse pain response and an associated emotional
response. Her capacity for work may be better assessed by specialists in the management of
chronic pain and psychiatry”.
Evidence of the treating local doctor
27. Dr Mundae gave evidence. He is the plaintiff’s general practitioner. He has treated her since
5 June 2013 prior to which she had been under the care of Dr Pinto. Dr Mundae said that he
has only recently prescribed antidepressants. He said that back injury /knee injury has been
the cause of the development of a depressive condition. He said he took no history from the
plaintiff regarding a depressive condition but relied on the psychiatrist.
9
28. In cross examination Dr Mundae acknowledged that the history he took from the plaintiff
did not include access to Dr Pinto’s notes. He said that he has recommended to the plaintiff
stretching exercise for her back but she had marked stiffness that prevented her from
pursuing such exercises. He said he gave her painkillers. He said he suggested physio therapy
but he was uncertain whether that had occurred.
29. Dr Mundae was not particularly helpful. He had a limited personal exposure to the plaintiff.
He was uncertain about the nature of the light duties the plaintiff had been performing
when he commenced as her treating practitioner in 2013. He said however he was aware
that she had the option to return to work on restricted duties but he said that with the level
of pain the plaintiff experienced he did not think her able to comply.
30. Dr Mundae was asked if the plaintiff has a capacity for suitable employment. He said did not
believe she did.
31. Dr Mundae was directed to Dr Graham’s opinion that a desk receptionist position would be
suitable. Dr Mundae said the plaintiff is in constant pain from her knee and back and she
suffers from depression and cannot sit for long periods and walking is difficult because of
knee pain.
32. He was directed to the report of Mr Simm and his comment that he expected the plaintiff to
have a physical capacity for sedentary or semi-sedentary positions. Dr Mundae said the
plaintiff can only sit up to 25 minutes.
33. He said that the plaintiff had not raised the prospect of a total knee replacement with him.
34. Dr Mundae was asked whether in the event the surgery is performed and the knee pain is
eliminated would the plaintiff otherwise be well enough to return to suitable employment
and he said he could not presume to answer the question but that the plaintiff also suffered
back pain.
35. Dr Mundae was directed to the report of Dr Duke at page 11 and the notation that the
plaintiff had never been referred to a pain management specialist.
Associate Professor Love
36. Associate Professor Love’s recent opinion is that a successful knee replacement surgery may
result in a capacity for work but that such an outcome was problematic.
The defendant’s case
37. The defendant relied on a 13 Week Vocational Assessment report prepared by “Recovre”
dated 27 May 2014 following on an assessment made of the plaintiff. The consultant
concluded that based on independent medical reports the plaintiff was fit for alternative
duties with restrictions. Employment options suggested based on those restrictions were
identified in the report as being:

Customer service/sales assistant;

Receptionist-front desk at hotel/motels

Betting Clerk (TAB outlets)

Corporate/static security officer (business/government premises)
10

Receptionist - Front Desk and Betting Clerk are the two jobs pursued as
amounting to “suitable employment” with the balance not pursued based
on the opinion expressed by Dr Graham
38. In his later report of 10 June 2014, Dr Graham said that he regarded the identified jobs of
“Front desk receptionist (hotel/motel) and “Betting Clerk (e.g. TAB outlets)” suitable “from
the description provided”.
11
The work the plaintiff was performing prior to ceasing work
39. The plaintiff and defendant joined issue on the question of the proper identification of the
plaintiff’s pre-injury employment. The defendant submitted that the sensible way to judge
the plaintiff’s pre-injury employment was by reference to the type of work she had been
performing for a number of years before she ceased employment with the defendant after
her second operation in April 2013 and which work comprised modified light duties. The
plaintiff, however, submitted that her preinjury employment was the work of an Assistant
Long Life Manager.
40. Certainly the plaintiff was employed by the defendant over many years and attained the
position of an Assistant Long Life Manager but due to a work injury and incapacity she had
not of course been undertaking the full suite of functional duties commensurate with that
position but instead had been discharging that position in a modified manner.
41. Does the reference in the definition of “suitable employment” to “pre-injury employment”
mean the employment performed in the relevant position before injury or, if more than one
injury, any subsequent injury or does it mean the pre-injury position that was being
performed in a modified manner?
42. Ms Sheehan submitted, correctly, in my view, that there is a limit to the extent one can look
back to identify the plaintiff’s pre-injury employment. Obviously, if one extends the time
frame far enough back, the pre injury employment performed by the plaintiff would be
something perhaps unrecognisable to the employment of an Assistant Long Life Manager
but if one concentrates attention on the employment since the plaintiff first had a work
injury, then the pre injury employment is the employment in the position of Assistant Long
Life Manager, albeit, in a modified form. Ms Sheehan submitted that a sensible and
appropriate approach to the matter is to concentrate on the period since the plaintiff had
been performing modified duties with the result that when one is considering the plaintiff’s
current suitability for suitable employment, the positions identified should be considered
“suitable” in light of the plaintiff’s capacity to have performed her employment by way of
modified duties. That being so, Ms Sheehan submitted, the plaintiff had proved herself
sufficiently and ably enough equipped in the performance of her modified employment to
be able to perform light sedentary duties.
43. The plaintiff said that the defendant’s submission if endorsed amounted to a distortion of
the meaning of the expression “pre-injury employment”. It was submitted that pre injury
means just that (that is, the work the plaintiff performed prior to lodging her claim in 2009)
and not just the work that the plaintiff was performing as a result of her injury.
44. I am unable to accept the defendant’s submission. I see no reason to interpret the
expression “pre-injury employment” to mean the employment the plaintiff was performing
post injury pursuant to a return to work on modified light duties. The plaintiff was not
employed by the defendant to perform the duties of her position in a modified form. No
such position exists. Instead the work the plaintiff was restricted to performing was a
construct imposed to assist her to remain in employment with the defendant as a result of
her work related injury. In any event, the fact is that the plaintiff proved unable to continue
to perform restricted duties and so
12
45. However, even if my conclusion on that point is incorrect, that is not the end of the matter
because of course the identification and inquiry of a worker’s pre injury employment is but
one matter for consideration under the relevant provisions of the Act in assessing the
capacity for “suitable employment”. I accept that the fact of the plaintiff’s capacity for a
number of years before ceasing employment to undertake modified employment is relevant,
if for no other reason, than it is a matter the Court is directed to give consideration to in s 5
of the Act by reference to “the worker’s return to work plan”. The fact that regard is to be
had to any applicable return to work plan surely means that the plaintiff’s ability physically
and cognitively to perform such modified light duties is relevant to the ultimate
consideration of whether she has a current suitability for undertaking suitable employment.
46. I am satisfied that in the period to the plaintiff was performing duties such as:
•
Placing promotional material throughout the store
•
Attending to deletions and stock checks
•
Completing stock on hand cards involving printing from computer
•
Sorting promotional tickets into categories
•
Systems operating training and invoicing
The plaintiff cross-examined
47. At the time of her injury in December 2009 the plaintiff was on light duties. She had her first
arthroscopy in March 2010 with Mr Hooper and she was able to return to work 6 to 10
weeks later. She saw Mr Hooper again in April 2011 by which time she was back working fulltime on light restricted duties. She was working at Watervale on light duties. She admitted
she was very unhappy with her manager and the treatment accorded her at Watervale. She
said she felt she was treated unfairly because of her status as injured employee with an
accepted claim. Dr Duke reported included a note that recoded the plaintiff having
described, “two years of misery at Watervale” “I was treated shitty”.
48. She said that at Watervale she did invoicing on an RF unit to list stock. She would clean the
tea room. Invoicing of new stock was a duty she said she had not previously undertaken but
proved capable of performing. She said she could manage to do the work with the aid of
painkillers.
49. She saw Mr Jackson on 19 March 2013 for arthroscopy. Mr Jackson saw the plaintiff again on
24 April 2013 which was some six weeks after surgery. From April 2013 to December 2015
plaintiff had no occasion to see Mr Jackson.
50. The plaintiff was directed to a letter dated 22 April 200815 addressed Dr Pinto with a return
to work plan with a description of long life manager.
51. She said she drove from her home in Avondale Heights to Watervale a trip that took about
20 minutes. She said when she had a work at Highpoint her journey was less than a 5 minute
drive. She said she hated the freeway.
15
Ex D1
13
52. Mr Jackson certified the plaintiff as unfit until 7 June 2013. Dr Pinto certified her unfit from 8
May 2013 through to 7 June 2013. Dr Mundae certified the plaintiff unfit on 8 June 2013
until 2 July 2013.
53. There are no certificates for the period 3 July 2013 to 5 September 2013. This is explicable
because between the periods of 3 July 2013 to 5 September 2013 the plaintiff was in Europe
on vacation.
54. The plaintiff was asked if she remembered receiving an offer of employment from her
employer by letter dated 9 October 2013. She says she never got the letter.
55. It was suggested to the plaintiff that she failed to make contact with her employer after
returning from overseas with the aim of a return to work on suitable duties because she did
not want to return because of her unhappy experience at Watervale. She said that
“someone from WorkCover phoned and said they didn’t have any suitable employment for
me and to look for work elsewhere”.
56. The plaintiff said that a big day on her feet would be a total period of about an hour but in
increments “maybe a little bit more”.
57. She said she takes anti-depressants and has seen a psychologist for treatment. She said she
had seen Dr Ingram psychiatrist for medico legal purposes on 24 September 2015 who
reported that she was not prescribed any antidepressants and he considered it appropriate
that she speak with her local treating doctor about the possibility of being prescribed the
same.
58. The plaintiff saw Mr Jackson in December 2015 and she said she did so because of her knee
pain and he recommended a total knee reconstruction.
59. In re-examination the plaintiff says that whilst she was overseas she ended up in a
wheelchair.
60. She said she was made to feel uncomfortable at Watervale and she was requested to take
annual leave days at the request of her manager though she had an accepted claim.
61. I do not regard the plaintiff’s expression of attitude to her perceived treatment at Watervale
as derogating from her claim.
The applicable legal principles
62. The law, and in particular, the application of principles distilled from decided cases, in my
judgment, means that the defendant has had a hard road to hoe in this proceeding. The
legislative framework is that an injured worker is entitled to receive weekly payments of
compensation after the expiry of the second entitlement period (130 weeks) if she has “no
current work capacity” and she is likely to continue indefinitely to have “no current work
capacity”.
63. “No current work capacity”, in relation to a worker, means a present inability arising from an
injury such that the worker is not able to return to work, either in the worker’s preinjury
employment or in “suitable employment”.
64. “Suitable employment” means as follows:
14
“Suitable employment’, in relation to a worker, means employment in work for which
the worker is currently suited –
(a)
having regard to (i)
the nature of the worker’s incapacity and the details provided in
medical information including, but not limited to, the certificate of capacity
supplied by the worker; and
(ii)
the nature of the worker’s pre-injury employment; and
(iii)
the worker’s age, education, skills and work experience; and
(iv)
the worker’s place of residence; and
(v)
any plan or document prepared as part of the return to work
planning process; and
(vi)
any occupational rehabilitation services that are being, or have
been, provided to or for the worker; and
(b) regardless of whether –
(i)
the work or the employment is available; and
(ii)
the work or the employment is of a type or nature that is generally
available in the employment market.”
65. A plaintiff need only establish a prima facie case that no suitable employment exists and in
such an instance she or he will then be entitled to succeed unless the Court is satisfied that
the defendant has produced evidence sufficient to raise some specific alternatives for
consideration as suitable employment. In my view, and being realistic, the defendant is
required to adduce evidence sufficient to give rise to a real possibility that there are
particular types of employment available in the community which the plaintiff is capable of
performing. If I am not satisfied of that then the defendant will fail. Thus there exists an
evidentiary onus on the defendant on this issue. This is really no different than explained by
Smith J in Public Transport Corporation v Mervyn Pitts [2007] VSC 356. Largely speaking the
matters will be factual in nature and fall to the defendant to adduce.
66. The case of Dinatale v Sweeney Research [2013] VSC 414 is instructive. It concerned an
appeal on a question of law from a decision of this Court in which an application to set aside
a decision of the employer to terminate the worker’s receipt of weekly payments failed. The
payments were terminated on the basis that the worker had been paid a total of 130 weeks
and had a current work capacity or, alternatively, had no current work capacity but it was
not likely that this would continue indefinitely. The Magistrate dismissed the worker’s claim.
The Magistrate concluded that the worker had an ability to return to work in suitable
employment and he was satisfied based on consideration of all the evidence including the
worker's own admissions that she could perform the identified tasks of a position contained
in a vocational assessment report provided by the employer and that she had not
established that she did not have ‘no current work capacity’ at any stage since the cessation
of the payments. A number of grounds of appeal were taken against the decision of
Magistrate. Beach J (as he then was) considered the reasons below and the fact that a
specific job was identified and that the worker been cross-examined about her ability to
15
perform the work in the identified position of ‘inquiry officer’. The worker had been asked
and answered a number of questions, the effect of which was that she agreed that she could
perform all of the relevant duties and cope with all of the identified demands of the job. The
grounds of appeal asserted that the Magistrate erred in law in failing to hold that, the
worker having established a prima facie case that no suitable employment as defined in the
Act was available to her, an evidentiary onus passed to the employer to adduce evidence
that there was employment available in the community which the worker was capable of
performing. His Honour rejected that submission and said:
First, on the evidence to which I have already referred, the Magistrate was not bound
to hold that the appellant had established a prima facie case that no suitable
employment was available to her. Secondly, even if any relevant evidentiary onus
passed to the respondent, this was discharged by the tendering of the vocational
assessment evidence to which I have already referred. Again, the short point is that,
on the evidence, the appellant failed to make out a case.
In ground five it is asserted that the Magistrate erred in law in treating the evidence
that the appellant would be capable of performing some aspects of the job of inquiry
officer, as establishing that there was suitable employment available in the
community which the appellant was capable of performing.
This ground must also fail. The evidence of the appellant was that she was able to
perform all of the identified tasks associated with the position of inquiry officer16. To
the extent the appellants counsel submitted to the contrary below, that submission
was rightly rejected by the Magistrate. The evidence was that the appellant could
perform each of the identified duties of an inquiry officer. Further, the vocational
assessment evidence was that the appellant could perform the tasks associated with
this position, and the position in fact existed and was relevantly available to the
appellant.
67. It may be distilled from Dinatale, that where there is a “prima facie” case that there is no
suitable employment available to an injured plaintiff, then an onus shifts to a defendant,
which will be discharged upon the provision of the vocational evidence from which facts the
plaintiff then must prove a lack of capacity to perform suitable employment.
68. The scope of the meaning to be afforded “suitable employment” was addressed by the Court
of Appeal in Barwon Spinners Pty Ltd v Podolack [2005] 14 VR 622 in which it was said:
The concept of ‘suitable employment’ will, of course, give rise to difficulties from
time to time, but the thrust of the definition is plain enough. It looks to the possibility
of employment after injury; and hence the reference to ‘work for which the worker is
currently suited’. Age, education and experience are among the matters relevant, as
are also the nature, and no doubt the extent, of the workers incapacity and, of
course, preinjury employment. Obviously employment is not to be regarded as
‘suitable’ if situated too far from the worker’s place of residence; … The expression
“whether or not that work is available” emphasises that the definition is looking at
the capacity to work, meaning that physical capacity for employment. If the worker
16
My emphasis
16
is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by
and is able physically to do a particular job, and that his ‘suitable employment’
whether or not the job is currently available.
69. In Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230 the Court of Appeal said, when
commenting on the proper ambit of “suitable employment” introduced into the legislation
with the comment of the relevant Minister that in effect that no regard is to be taken of
whether work for the is a type or nature that is generally available in the employment
market, that:
…the legislature intended that the worker’s loss of capacity was to be determined
having regard to work that is generally available in the employment market, rather
than a position tailored to meet the particular needs of individual worker, who is
incapable of his normal work.
70. In a decision of this Court in Manthopoulos v Spencwill Nominees [MMC 26 April 2012] His
Honour Magistrate Garnett said:
It is still necessary for the court to determine whether the suggested employment
exists, to analyse the employment requirements from the physical, and if necessary,
a psychological aspect and to apply the relevant matters as set out in the definition
of suitable employment in s 5. After undertaking this analysis, applying ‘a degree of
realism’ and after disregarding industrial factors, a determination can be made as to
whether the worker has a capacity for ‘suitable employment’. Furthermore, when
considering whether a worker has a capacity for ‘suitable employment’, the
suggested suitable employment needs to be analysed by specific reference to the
particulars of the job, the medical restrictions and personal characteristics of the
worker in addition to the factors set out in the definition.
71. It is also important to bear in mind the distinction between capacity for a return to modified
duties and a work capacity for suitable employment: Sodexo Australia v Karen Rowe & Ors
[2009] VSC 298.
The Recovre report considered
72. In identifying and concluding the availability of suitable employment options the report took
into account the plaintiff’s reporting of functional abilities and limitations in the following
regard:

walking maximum of 10 to 15 minutes

standing a maximum of 10 to 15 minutes

sitting in her car a maximum of 10 to 15 minutes

lifting or carrying 1 to 2 kg

bending or squatting to avoid bending and squatting reaching does not need to
reach for anything at home

sleeping broken sleep every night due to pain and discomfort

driving or travel time a maximum of 5 minutes
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73. The vocational assessor acknowledged in her report the existence of a number of inherent
limitations ancillary to the plaintiff’s reported physical limitations. In regard to a suggested
office-based role the author of the report observed that “as reported by the plaintiff she has
very limited computer skills and has only worked with Woolworths. She therefore will require
some training to effectively secure the suggested vocations.” No evidence was forthcoming
from the defendant as to the content of meaning to be attributed “some training”.
74. In regard to the duties of a front desk/receptionist in hotels/motels they comprise:

greeting and welcoming visitors, and directing them to the appropriate person

arranging and recording details of appointments

answering inquiries and providing information on the goods, services and
activities of the organisation

answering, connecting and transferring telephone calls

receiving and resolving complaints from clients and the public

receiving and distributing correspondence, facsimile messages and deliveries

maintaining the reception area

advising on and arranging reservations and accommodation

may perform other clerical tasks such as word processing, data entry, filing, mail
dispatch and photocopying.
75. The physical/psychological demands of the job are described as “Limited”.
76. The report writer contends that the position is capable of being performed by the plaintiff
on the following basis:
Front desk receptionist could be a suitable vocation as there are limited physical
demands and Ms La Rosa has some transferable skills to perform the role. Dr
Graham indicated the following restrictions in his report:
•
Avoid repetitive bending
•
Avoid heavy lifting especially from the low level
•
Avoid constantly bending back
•
Postural variety-sitting/standing/walking
A front desk position is within these restrictions as there is generally a seat behind
the counter which Ms La Rosa could sit/stand when required. There are limited lifting
and bending movement requirements. Ms La Rosa appeared to have good
communication skills, proven ability to deal with various levels of individuals (e.g.
Staff members, management…
77. Job prospects for such position are expressed as a “growing strongly,” however, only two
positions were identified by way of vacancies in the west of Melbourne.
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78. I am satisfied that adjudged against the scope and breadth of what is required by
employment in such a job that the plaintiff would be cognitively equipped to satisfy them
but the physical demands are another matter. The author reports that the position of front
desk receptionist is one that would cater for her restrictions as she could sit and stand as
required. The basis of that assertion is not evident from any specific job description. Indeed,
it is not clear what tasks are embraced by the requirement of “maintaining the reception
area”. The report writer notes that in addition it would prove necessary for the plaintiff to
undergo retraining to equip her with the requisite computer skills and abilities. I am unable
to make any finding what the scope and extent of such training would amount to and thus
assess the plaintiff’s capacity to undergo and or satisfy it.
79. The other position is that of a betting clerk. The duties of such a role are described as:
This occupation may include associated occupations with varying tasks.

taking bets and debiting credit accounts and bank accounts electronically,
and receiving cash

recording and entering bets electronically and in transaction ledgers

issuing tickets and preparing summaries of transactions

monitoring amounts of money placed on race entrants

checking details and numbers on winning betting tickets against those in
betting ledgers and electronic records, and paying out money on winning
tickets

verifying the identity and account balances of betting agency customers

answering betting enquiries over the telephone, via email and in-person

may work in a call centre
80. The physical/psychological demands of the job are described as “Limited.”
81. As to why the author regards the position as achievable by the plaintiff she wrote:
Betting Clerk may be an achievable vocation as it is office-based requiring very
limited heavy lifting/carrying. Ms La Rosa has demonstrated the ability to work
independently and within a team, good organisation skills and time management.
Ms La Rosa will need to secure a responsible gaming ticket prior to commencing this
role. Although no other formal retraining is required for the above.
82. In relation to the labour market analysis the position in terms of prospects is expected to
“grow moderately,” however, in terms of labour market analysis there were at the date of
the report in2014, no identified positions in the west of Melbourne.
83. Ms Sheehan submitted that the plaintiff was an early school leaver who has had one
employer and two compensable injuries occurring with that employer. Although the plaintiff
has a degenerative condition the defendant submits says there are two positions that she
could perform and is equipped to perform.
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84. “Suitable employment” needs to be analysed by particulars of the job. The plaintiff was not
interrogated about the particulars of the two identified positions. Ms Sheehan said that it
was a forlorn path to have pursued because the plaintiff’s evidence was that she was unable
to work because she was in too great pain to undertake employment. I am not persuaded
by that submission because had I reached the conclusion that the plaintiff’s physical
limitations including her pain and her back were not such as to exclude her from the work as
a betting clerk, it would have proved necessary for me to be satisfied that the plaintiff
possessed the requisite skill set or could be equipped to attain the necessary skill set for the
position. It is as is apparent from the reasoning applied in Dinatale, that this is an important
piece of evidence to which consideration may be required. The tasks identified of the
position are not straightforward and involve the plaintiff performing a scope of duties
outside the apparent skill set she exhibited in her employment with the defendant.
85. The positions as to location are not strong and only two positions are identified in her region
and in relation to betting clerk no position was identified. The plaintiff said that she has not
been offered any training. She has no computer skills. She does not hold a gaming licence
and is uncertain as to how she would obtain one or if she would be capable of enduring
what was required to obtain one. I have no evidence what is required in order to secure the
same. The plaintiff can drive but only short distances,
86. My task is concerned with determining the plaintiff’s current capacity. Dr Mundae has seen
the plaintiff twice since she saw Mr Jackson and he said that she has not mentioned the
need for a knee replacement. Ms Sheehan said this was remarkable. That is a reasonable
enough observation. In any event, the defendant has only just received a request for
surgery, and at the date of the reservation of my reasons, that request had not been
processed. I cannot know if and when surgery will occur. The plaintiff seemed determined
that it would, and although at the date of hearing her application for the costs of surgery to
be accepted by the defendant had only just been received, the plaintiff said she would
proceed regardless.
87. I am satisfied the plaintiff has suffered as severe loss of cartilage and there is a clinical basis
in the plaintiff’s complaint of pain. I do not know how the plaintiff will respond to surgery if
it occurs or the period of time she will require by way of rehabilitation and thus I cannot be
satisfied that such incapacity will not last indefinitely. Irrespective of surgery, the plaintiff
described the restrictions created by her current left knee which includes pain and arthritis.
She said she cannot walk upstairs or kneel. She said she said she cannot stand for long
periods. She says she takes Panadol in daily in the order of up to six tablets on a bad day. She
rubs her back with Voltaren every day. She was reported as being “all cramped up of the
morning”.
88. I am not satisfied of the existence of evidence adduced in regard to the plaintiff’s skills that
she would be capable of performing the role of a betting clerk regardless of the physical
limitations and pain about which she complains and of which I am satisfied she suffers. I am
satisfied that the plaintiff does not have the requisite capacity for the position if one existed.
89. The central question for me is not to concentrate on one aspect of the evidence in isolation
but to assess the whole of the evidence in order to determine if the defendant has
discharged its burden in satisfying me that the plaintiff could undertake “suitable
employment” having regard to the matters contained in the definition.
20
90. I am satisfied that the plaintiff has established a prima facie case of an incapacity to
undertake “suitable employment” and I am also satisfied that the defendant has discharged
its obligation in the provision of a vocational assessment comprising the Recovre report such
as to give rise to the possibility of the existence of suitable employment. Therefore, in light
of the same, has the plaintiff discharged her obligation to establish on the balance of
probabilities that she does not have the capacity to undertake the employment identified by
the defendant therefore rendering it unsuitable? I am persuaded that she has, and in
reaching my conclusion, I have not only had regard to those matters already identified in the
definition in the Act but of course also to the plaintiff’s age and her very limited educational
and work history, such that when the constellation of considerations are assessed, the
conclusion I have reached must follow.
91. The plaintiff is entitled to the relief claimed and the notice of termination dated 13 June
2014 is set aside with the result that the plaintiff is entitled to weekly payments of
compensation at the rate for no current work capacity from 8 December 2014 to date and to
continue in accordance with law.
92. I will hear the parties on the form of any further and necessary orders and costs.