In the Magistrates Court of Victoria s1

IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE

WORKCOVER DIVISION Case No.A13553480

SIMEON POPOV Plaintiff v

AINSAAR & CO PTY LTD Defendant

MAGISTRATE: S GARNETT WHERE HELD: MELBOURNE DATE OF HEARING: 24 & 25 OCTOBER & 8 DECEMBER 2011 DATE OF DECISION: 13 JANUARY 2012 CASE MAY BE CITED AS: POPOV v AINSAAR

REASONS FOR DECISION

Catchwords: S 109 Rejection – Left Shoulder injury – issue at hearing: capacity – Liability not contested

APPEARANCES: Counsel Solicitors

For the Plaintiff Mr Valiotis Maurice Blackburn

For the Defendant Mr Miles Thomsons Lawyers

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HIS HONOUR:

1 Mr Popov is aged 57 years, is right hand dominant and was employed as a maintenance worker on a three-month probationary period with the defendant from 25 March 2010, five days per week working from 7 a.m. to 3 p.m.. The defendant operates the Quest Apartment complex at Moonee Ponds. Mr Popov alleges that on 18 May 2010 he sustained an injury to his left shoulder which arose out of or in the course of his employment when lifting and manoeuvring a heavy bag up a stairwell.

2 Mr Popov lodged a WorkCover claim on 16 July 2010, which was rejected by CGU on 23 August 2010, on the basis that he did not sustain an injury which arose out of or in the course of his employment. At the hearing the defendant did not call any evidence on the issue of liability but took issue with the extent of the injury sustained by Mr Popov and what, if any, incapacity flowed from it.

3 The evidence indicated that Mr Popov was off work following the injury from 19 May 2010 to 30 May 2010 and then returned to alternative duties from 31 May 2010 until 4 June 2010, was off work for unrelated reasons between the 7th and 9th June and was then terminated by the defendant on 10 June 2010. Mr Popov alleges that he has remained incapacitated for all employment since that date.

4 Mr Popov gave evidence that he previously sustained an injury to his right shoulder on 23 February 2008 as a result of falling off scaffolding for which he underwent operative treatment on 16 July 2008. At the time of this incident he was working in his own business known as, “Satellite City Plasterers” which he had been operating for approximately 30 years and was contracted to MMAP Constructions Pty Ltd. He told the court that he was incapacitated for all work for a period of 18 months and was then able to return to work in his own business performing mainly supervisory work. He then decided to apply for employment with the defendant whilst continuing to operate his business

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on a part-time basis. Mr Popov told the court that his duties with the defendant required him to perform maintenance tasks which included; changing light bulbs, repairing doors, locks, curtains, doing gardening maintenance including lawn mowing, sweeping, trimming hedges and pool maintenance.

5 Mr Popov gave evidence that he sustained the injury when lifting a duffle bag/sports bag weighing approximately 25 kg up a flight of stairs. He told the court that he reported the injury to his employer and consulted his general practitioner, Dr Parbhoo, the following day who certified him unfit for work. He said that he returned to work on 31 May on a restricted duties certificate but was having difficulty coping as his shoulder was painful and he could not perform overhead work or other tasks given to him. He told the court that his employment was terminated on 10 June by the Manager, Mr County, on the basis that the defendant alleged that he was not “happy” in the job and was subsequently paid the balance of money owing for his probationary period. Mr Popov said that apart from performing two days work in his own business in late June 2010, he has been unable to work and it has been recommended to him by his treating Orthopaedic Surgeon, Mr Lynch, that he undergo arthroscopic surgery on his left shoulder. He told the court that from June until late November 2010 he lived off his savings and since that date has been in receipt of the disability support pension. He said that he has looked for supervisory work without success.

6 In cross-examination, Mr Popov agreed that in his own business he was responsible for ordering stock, maintaining accounting records, sourcing new work, quoting and overseeing his staff and tradesmen as well as performing hands on duties when required. He confirmed that in addition to the work he performed in his own business, he previously also worked on a part-time basis two to three days per week for La Farge Plaster Board Pty Ltd performing

quality control work. He agreed that he has issued a damages action against MMAP Constructions Pty Ltd claiming economic loss because of his right

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shoulder injuries. He also agreed that he was operating his own business whilst working for the defendant but stated that he was only able to perform supervisory duties and was not able to perform hands on plastering work. He told the court that he only did one job in his own business after he sustained the injury to his left shoulder on 18 May which did include some trowel work and overseeing of others by him. He agreed that he could still perform supervisory work in his own business if the work and contractors were available and that it was possible that he may not have remained working for the defendant after his probationary period ended. Mr Popov conceded that he has experienced left and right elbow symptoms since 2004 and that his right shoulder condition has become worse since May 2011 for which he recently underwent an ultrasound examination.

7 Mr Popov disagreed with the suggestion that his work performance and attitude to work deteriorated after the first three weeks of his employment with the defendant. In particular, he disagreed that he regularly commenced work after the designated commencement time of 7 a.m.; that he took numerous undesignated breaks during the day; that he regularly ceased work before 3 p.m.; that he was spoken to on a number of occasions by Mr County about these issues; that management were concerned about his performance and attitude and that he was not finishing the daily tasks allocated to him. Mr Popov responded to these allegations by telling the court that he was not given enough time by his employer to finish certain tasks; that he was not always given the appropriate materials to complete the tasks required and that criticism of his work attitude and performance was never discussed with him. He denied attending a meeting with Mr County on a 17 May 2010 to discuss these issues. Mr Popov told the court that Mr County's attitude to him changed after he was injured. He did agree that at his request Mr County purchased; a hedge trimmer, extension cord, blower and gloves in order to assist him in the performance of his tasks. Mr Popov denied complaining to other staff about management or that he was disruptive in the workplace. Mr Popov agreed that

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he had planned to go on an overseas holiday for a period of two months in August 2010 but told the court that he was planning to discuss this with Mr County and would have accepted his decision if leave was refused.

8 Mr Popov agreed in cross-examination that he provided light duty certificates between 10 June 2010 until November 2010 and total incapacity certificates thereafter. He agreed that he would be able to work in an advisory position at Bunning’s or a similar hardware store but noted that he has never performed sales work and would be unable to perform the physical requirements of such a job. He told the court that he has applied for approximately 15 to 20 jobs without success. He gave evidence that his left shoulder condition has worsened since Christmas 2010 and that it is painful and he has restricted movements of the left arm and shoulder because of it. He told the court that he has difficulty washing his face and shaving, cannot lift his arms above shoulder height, has difficulty holding a cup of coffee or brushing his hair and has to use his right arm to brace his left arm when using his mobile phone.

9 During cross-examination, the court was shown DVDs taken of Mr Popov on 12 May 2011, 14 May 2011, 5 July 2011, 6 July 2011, 14 July 2011, 23 August 2011 and 29 August 2011. The DVDs depicted a greater range of movement and use of his arm than he indicated when giving evidence. They showed him; raising his left arm while smoking; driving and turning the steering wheel using his left arm; swinging his left arm by his side whilst walking; using his left arm to hold and use his mobile phone; crossing his arms on his chest; using his left arm to play the poker machines; holding a cup of coffee in his left arm; using his left arm to hold a “squeegee” in order to clean his cars front windscreen at a service station; using his left arm in a repetitive and vigorous motion to clean the windscreen and using his left arm to carry a shopping bag containing articles. Mr Popov told the court that the use of his left arm

depended on his pain level which varied from day to day.

10 Mr County gave evidence on behalf of the defendant. He told the court that

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he is employed as the General Manager and Franchisee of Quest, Moonee Valley. He gave evidence that quest consists of 61 serviced apartments and that he employed Mr Popov in March 2010 on a three-month probationary period working 37.5 hours per week. He told the court that Mr Popov was required to perform general handyman and maintenance work which included; replacement of washes, light bulbs, plastering repairs, rubbish collection, maintenance of the swimming pool and swipe cards and general garden maintenance. He told the court that the previous maintenance person was employed four days per week, working 30 hours and was able to complete all of the tasks required of him. Mr County said that Mr Popov worked well for the first three weeks of his employment but then his attitude and work performance deteriorated thereafter in that he regularly commenced work after the designated commencement time of 7 a.m.; that he regularly finished work before 3 p.m.; that he failed to perform the daily tasks required; and, he took regular unscheduled breaks during the day. He told the court that he initially discussed these matters with Mr Popov on an informal basis which became more formal over time. Mr County confirmed that Mr Popov had requested that he be supplied with equipment to perform his tasks which was duly purchased by the defendant. These items included; an electronic hedge trimmer, a blower and gloves. He told the court that Mr Popov failed to maintain the swipe card system; failed to perform regular maintenance on the air-conditioning units; failed to perform daily tests on the pool; failed to mount wall strips as requested and failed to maintain the garden.

11 Mr County said that he had a formal meeting with Mr Popov on Monday 17 May 2010, to discuss these performance issues but Mr Popov was unresponsive. He confirmed that after Mr Popov sustained the injury to his left shoulder on 18 May, he returned to work on light duties but his attitude and work performance did not improve which caused issues with other staff members. In particular, he said that Mr Popov was taking an extraordinary period of time to trim the hedges and to affix wall strips as requested. He told

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the court that Mr Popov did not complain to him that he was experiencing left shoulder pain or that it was restricting him in the performance of his duties. Mr County gave evidence that as a result of his poor performance and attitude he decided to terminate Mr Popov’s employment on 10 June prior to the end of his probation period. He told the court that on being informed of his termination Mr Popov said; “ I'll bring this place down”.

12 In cross-examination, when questioned as to the reason he did not terminate Mr Popov’s employment earlier, Mr County told the court that it was not his “management style” to do so. He agreed that when Mr Popov returned to work on light duties he did inform him that he was unable to do all of his pre- injury tasks because of his injury and confirmed that he terminated Mr Popov within one week of him returning to work on light duties following the work injury.

Medical Evidence

13 Dr Parbhoo gave evidence and medical reports prepared by him dated 9 November 2010 and 6 May 2011 were tendered together with copies of WorkCover certificates of incapacity provided by him for the period 13 June 2010 to 30 November 2010 where he certified that Mr Popov was fit for modified duties and for the period 1 December 2010 to 20 December 2011 where he certified that Mr Popov was unfit for all duties. In his report dated 9 November 2010, Dr Parbhoo diagnosed that Mr Popov sustained a left rotator cuff syndrome with a tear to the supraspinatous muscle due to the work incident described. He was of the opinion that Mr Popov was fit for alternative duties which avoided repetitive heavy lifting above his shoulder and that he should avoid excessive shoulder rotations, abduction or adduction. In his report dated 6 May 2011, he noted that Mr Popov was unfit for work and would have to seek alternative work in the future. He reported that if there was no significant improvement it would be recommended that he undergo surgery by way of an arthroscopic decompression and rotator cuff repair. He

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noted that a left shoulder ultra sound performed on 14 July 2010, indicated two tears in the supraspinatous tendon, one being a full thickness tear and the other a partial thickness tear with some subacromial bursal thickening with impingement. Dr Parbhoo told the court that Mr Popov requires surgery due to the deterioration in his condition.

14 In cross-examination, Dr Parbhoo agreed that Mr Popov has had problems with his elbows and shoulders for many years and also suffers from advanced cervical degeneration all of which have been contributed to by his work as a plasterer over many years. He confirmed that he referred Mr Popov to Mr Lynch, Orthopaedic Surgeon, in 2006 for treatment of his various ailments and that he also referred Mr Popov to Mr Lynch for an opinion in relation to his left shoulder injury. He agreed that Mr Popov last saw Mr Lynch on 16 August 2010 and that there has been no subsequent Orthopaedic referral. Dr Parbhoo told the court that he changed the certificates he was providing to Mr Popov from modified duties to unfit for all duties from 1 December 2010 on the basis that Mr Popov reported a deterioration in symptoms and he formed the opinion that he required surgery although he conceded that he did not find any clinical changes on examination at that time. Dr Parbhoo told the court that he expects Mr Popov to be fit for alternative work in the future after he undergoes surgery and that at present Mr Popov would be fit for an advisory role at Bunnings, if he could find such a job.

15 Mr Popov tendered medical reports from Mr Lynch, Orthopaedic Surgeon, dated 16 August 2010, 25 May 2011 and supplementary reports dated 20 July 2011 and 21 October 2011. Mr Lynch reported that he first saw Mr Popov on 16 August 2010 and on examination found that he had a full range of motion of the left shoulder. He reported that he injected the subacromial space and wrote to Dr Parbhoo that if it was not sufficient to control his pain he would be

prepared to review him and would recommend arthroscopic decompression and rotator cuff repair. In his report to Mr Popov’s lawyers on 25 May 2011,

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he provided details of the previous treatment he had provided in relation to Mr Popov’s bilateral elbow pain and neck pain in 2006 and the right shoulder injury he sustained in 2008 for which he performed surgery on 16 July 2008. He reported that as at 16 August 2010, Mr Popov should not return to plastering duties and that future treatment would depend on developing symptoms and medical review. He reported that Mr Popov could perform light maintenance duties, avoiding heavy lifting greater than 20 kg but that repetitive above shoulder and forward reaching activities may aggravate his shoulder pain.

16 Mr J O’Brien, Orthopaedic Surgeon, gave evidence on behalf of Mr Popov and his medico-legal report dated 10 October 2011 was tendered. He noted that when he examined Mr Popov he complained of constant pain in the left shoulder and arm and reported the severity of his pain as being 8/10 on the Visual Analogue Scale. He noted that Mr Popov reported sleep disturbance and an increase in pain on use, particularly elevation with his range of movement being severely restricted. Mr O'Brien also obtained a history of increasing right shoulder pain in May 2011. On examination he found flexion was 70 degrees with 50 degrees of abduction,10 degrees of extension and 15 degrees of adduction with 60 degrees of internal rotation and 40 degrees of external rotation all being limited by the complaint of shoulder pain. Mr O'Brien opined that the physical signs demonstrate adequate indication for surgery and that Mr Popov is unfit for work as a plasterer or a maintenance person as he cannot work in any activity which would involve repetitive activity with his left arm or lifting or work at or above shoulder level.

17 In cross-examination, after being given a narrative of what was depicted on the surveillance DVDs, Mr O'Brien expressed the opinion that activities such as; raising his left hand to his mouth to smoke, using his left arm extended for

a period and holding “heavy” shopping bags would cause Mr Popov some difficulty and pain. He agreed that Mr Popov would be fit for supervisory work

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but not work involving use of his left arm, which would rule out his pre- accident employment and plastering duties.

18 The defendant tendered medical reports from Mr C Jones, Orthopaedic Surgeon, who assessed Mr Popov for medico-legal purposes on 18 August 2010 and 17 August 2011. In his initial report, he diagnosed that Mr Popov sustained a rotator cuff injury with abduction pain and reduced function in the shoulder joint. He noted at that time that after proper investigations and a period of conservative treatment if there was no improvement a shoulder arthroscopy may be required. At his second assessment, Mr Jones noted that clinical findings indicated significant impingement when Mr Popov’s arm was brought to the 90 degree abducted position and internally and externally rotated. He also reported that pain and crepitus were experienced when this was performed. He expressed the opinion that arthroscopic decompression may need to be considered. Mr Jones was of the opinion that Mr Popov is unfit to work as a plasterer but would be fit to work in suitable employment with restrictions which would preclude heavy lifting use of the left arm or repetitive use of the left arm above shoulder level.

Conclusion

19 I find that Mr Popov gave an honest account of the mechanism of injury to his left shoulder on 18 May 2010. The medical opinion is to the effect that he sustained a rotator cuff injury and the subsequent ultrasound confirmed tears to his supraspinatous tendon consistent with the mechanism of injury he described. Although the defendant rejected the claim on liability grounds, at the hearing it elected not to call any evidence to refute the account Mr Popov gave as to how the injury was sustained. I therefore find that he did in fact sustain an injury to his left shoulder which arose out of and in the course of his employment with the defendant on 18 May 2010 as a consequence of lifting the bag. All doctors have expressed the opinion that he requires arthroscopic surgery to his left shoulder. Accordingly, I find that the defendant is liable for the reasonable costs associated with this surgery.

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20 I accept that Mr County gave truthful evidence concerning the attitude and work performance of Mr Popov whilst employed with the defendant. I accept that shortly after commencing employment Mr Popov’s work ethic, attitude and motivation was questionable. The evidence indicates that he was an experienced and well- qualified plasterer over many years who had significant experience in running his own business. I find that after commencing employment with the defendant, the job was not as he expected and he had difficulty in accepting being told what and when to do the tasks required of him, which caused his attitude and work performance to deteriorate.

21 I find that Mr Popov is and has been fit for suitable employment since the date of termination. I find that the surveillance evidence clearly demonstrates that Mr Popov uses his left arm and has a greater range of movement of his left arm than he would have the court believe. I do not find that anything of significance occurred in late 2010 to render him unfit for all employment and to justify the change in the certification of him being fit for modified duties to being unfit for all duties. The evidence indicates that Mr Popov was actively seeking suitable employment as early as 13 July 2010 (as recorded by Dr Parbhoo) and the only justification for a change in certification in December 2010 was on the basis of a reported deterioration in symptoms without there being any corresponding deterioration in clinical findings. I also note that Mr Lynch had suggested Mr Popov return to him if there was a deterioration in symptoms which did not occur. I find that Mr Popov is unfit for his pre-injury duties as those duties required him to engage in tasks involving the repetitive use of his left arm and work above shoulder height. However, since ceasing work with the defendant he has been fit for suitable employment. He has considerable specialist and transferable skills. His CV, which was tendered, indicates he has considerable experience in; working and sourcing tradesmen, employing contractors, overseeing the activities of staff and tradesmen, sourcing new business, quoting new jobs for residential and commercial clients, liaising with clients, communicating with builders and other tradesmen, liaising with architects, ordering stock and components including, negotiating prices and delivery schedules with

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suppliers, completing all paperwork including issuing invoices and statements, general accounting and office administration, calculating GST and ATO payments and preparing all business records for accountants. Mr Popov has a capacity for suitable employment in the plastering or hardware industries.

22 On this basis, I find that he is entitled to weekly payments at the rate applicable for an injured worker with a current work capacity from the date of the termination of his employment with the defendant. I also add that had liability been accepted at the outset in relation to injury and the need for surgery, it is probable that Mr Popov would have undergone surgery and returned to work in suitable employment many months ago.

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