Aldridge v Victorian WorkCover Authority
[2016] VCC 815
•17 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03301
| MARIANNE ALDRIDGE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 June 2016 | |
DATE OF JUDGMENT: | 17 June 2016 | |
CASE MAY BE CITED AS: | Aldridge v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 815 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the upper limb
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Mr E Makowski | Kauthen Legal |
| For the Defendant | Mr I McDonald | Wisewould Mahony |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for injuries suffered by her in the course of her employment. There is no issue in this instance that in March 2012 the plaintiff sustained a compensable injury to her right shoulder. The impairment of function relied upon by the plaintiff in this application is that of the right upper limb.
2 In the proceeding, the plaintiff relies upon two affidavits, dated 4 March 2015 and 7 June 2016. The plaintiff also gave viva voce evidence and was cross-examined in the course of the hearing of the matter. Otherwise the parties rely upon medical evidence tendered by them. In addition, the defendant has tendered some twenty minutes of DVD surveillance of the plaintiff.
3 The content of the plaintiff’s affidavit evidence and her viva voce evidence are a matter of record. There is little point in restating the content of that material in the course of these reasons, and I propose not to do so unless it is necessary to give context and explain my path of reasoning and my findings.
The viva voce evidence
4 The plaintiff impressed me as a truthful and reliable witness. No aspect of the cross-examination causes me to question any of the statements made by the plaintiff as to the content of her affidavits.
5 It is clear, however, that in the course of her evidence, the plaintiff accepted that she had a number of comorbidities, namely, a condition in her cervical spine which was responsible for neck pain, a condition in her lumbar spine which limited her ability to sit for long periods, and a condition in her knee which combines with that in her lumbar spine to restrict her ability to stand or walk for long periods and that I must give due weight to the significance of that evidence in my findings .
The DVD surveillance
6 A striking feature of the DVD surveillance in this instance was the plaintiff’s failure to employ her right arm for activities other than opening and closing the door of her vehicle and steering the vehicle.
7 The DVD surveillance by and large involved the plaintiff undertaking supermarket shopping.
8 Almost exclusively the plaintiff employed her non-dominant left arm in taking items from supermarket shelves and placing them into her shopping trolley and, thereafter, loading bags of items into her car. When opening the boot of her car, which is a hatchback, the plaintiff also employed her left arm.
9 It is not suggested that the plaintiff was, at any time, aware that her movements were being monitored or recorded. Having seen the DVD evidence, I commented to counsel in the course of the trial that I could not conceive of independent evidence which corroborated more forcefully the fact that the plaintiff avoided the use of her dominant arm (which she generally held in an unnatural position across her body) and favoured the use of her non-dominant arm to a level which was extreme and appeared unnatural.
10 I am satisfied that the DVD evidence is definitively probative upon the issue that the plaintiff makes limited use of her dominant right arm. The issue which arises in these circumstances is whether or not that limitation arises by reason of an organic cause, or the presence of a non-organic pain syndrome.
Findings as to the cause of the disability with which the Plaintiff presents in her right upper limb
11 Mr A Chehata, the plaintiff’s treating surgeon, who practices as a shoulder, elbow and wrist surgeon, has provided a number of medical reports in this instance.
12 In his report dated May 2012, Mr Chehata describes the plaintiff as presenting to him with a history of the onset of cervical pain and shoulder pain, which persisted for two or three weeks prior to her workplace injury.
13 On examining the plaintiff at that time, Mr Chehata diagnosed the presence of a SLAP tear, which he opined should be treated by way of surgery. He also opined that the plaintiff’s cervical spine pathology should be investigated in due course by an appropriately qualified specialist.
14 On 29 August 2012, Mr Chehata reported that the plaintiff was then two weeks post shoulder arthroscopic surgery, commenting that she was a good surgical candidate and seemed to have improved with surgery.
15 In November 2012, Mr Chehata commented:
· that the plaintiff was progressing exceptionally well following her right shoulder surgery;
· that the plaintiff’s main problem at that time was generated by her cervical spine, that she had consulted a neurosurgeon with respect to that condition and that he had referred her to a rheumatologist with respect to that condition.
16 In February 2013, Mr Chehata commented that the plaintiff had progressed exceptionally well following her shoulder surgery and that she was:
“… back at work being reintegrated, I think it is wise for us to go slowly in case there is a further problem with her shoulder considering that she has neck and shoulder issues.”[1]
[1]Court Book (“CB”) 41d
17 On 29 July 2013, Mr Chehata opined that the plaintiff was progressing exceptionally well, but commented that she had ongoing issues of pain in her lateral neck, extending into her arm, together with numbness, which he commented he felt was more related to her cervical spine. At that stage, he opined:
“I think she is able to return to work potentially for a few hours, once or twice a week, but the repetitiveness of her job causes her shoulders to ache. I am unclear whether or not she will be able to return to this repetitive natured work.”[2]
[2]CB 42
18 In his final report dated 23 January 2014, Mr Chehata commented that the plaintiff presented with:
“… pain across the cervical spine, all down the right shoulder and across the shoulder and into the hand. She has got numbness in the little finger, ring fingers, and although she has got an excellent range of movement and her movement has improved markedly from surgery, she is still unable to perform her light duties and this is causing her a great deal of concern and pain.”[3]
[3]CB 43
19 Mr Chehata continued:
“I think this is related to her obvious injury at work and thankfully this has stabilized and I do not feel there is any further necessity for either pain specialists or physiotherapy and hopefully this will continue to improve.”[4]
[4]CB 43
20 In concluding, Mr Chehata stated:
“She is able to work 3-4 hours in the morning three times a week, but after that she would require sleep because of the ongoing ache in the shoulder.”[5]
[5]CB 43
21 It is clear from the evidence of Mr Chehata that the plaintiff presented to him with symptoms in her right shoulder which emanated from work related injuries to both her shoulder and cervical spine, which had developed:
· coincidently, with respect to the timing of their onset
· by reason of the identical work process which the plaintiff was undertaking.
22 In the circumstances, it is not in issue that insofar as each of those injuries gives rise to an impairment of function of the plaintiff’s right upper limb, the plaintiff is entitled to rely on the combined influence of those injuries and the resultant impairment in function of her right upper limb in this application.
23 Dr K van Haaster is the plaintiff’s treating general practitioner. In a report dated 23 March 2016, Dr van Haaster states that the plaintiff’s condition has been stable and has not changed for the past four years. He describes the plaintiff as presenting with constant pain throughout her right side, aggravated by all movement.
24 In a previous report dated February 2014, Dr van Haaster had commented that the plaintiff had been unable to increase her working hours beyond three 3‑hour shifts per week, and noted that she had been struggling to complete those hours.
25 It is relevant to note that it is the plaintiff’s evidence that at that time, she was employed by the defendant as a shift coordinator, and that her duties were largely supervisory in nature.
26 In her 2016 report, Dr van Haaster employs the term “pain syndrome” as a descriptor of the condition with which the plaintiff presents. I do not interpret her use of that term to be suggestive of an opinion as to the absence of an organic cause for the plaintiff’s condition. I make that finding, having regard to Dr van Haaster’s position that the plaintiff’s condition had been stable for a period well before the time at which Mr Chehata described the plaintiff as presenting with a great deal of concern and pain associated with the condition of her right shoulder and right upper limb generally, which Mr Chehata was satisfied was related to her “obvious injury at work”.
27 On 24 September 2012, the plaintiff was seen by Mr Myron Rogers, a neurosurgeon.[6] Mr Rogers opined:
[6]While in his report Mr Rogers comments that the plaintiff presented with left-sided neck pain, I am satisfied, having regard to the content of the various reports in this instance, that a typographical error arises in this instance and that the plaintiff was presenting to Mr Rogers with right-sided neck pain.
· that the plaintiff’s cervical symptoms extended into her shoulder, scapula and biceps;
· that the plaintiff was undergoing physiotherapy three times a week;
· that the plaintiff’s discomfort in her neck related to the underlying wear and tear in the neck which was being exacerbated by the posture of her right arm (which, at that time, was in a sling), and that he expected that with increased mobility in her right arm, her neck symptoms should settle.
28 Dr Stephen Hall, in reports dated January and March 2013 respectively, described the plaintiff as presenting with right-sided cervical pain which was mechanical in origin. He commented that Mobic had proven efficacious in managing that condition, but that the plaintiff had ceased taking Mobic because it caused her to feel unwell, and she had experienced a rapid return of her pain, commenting:
“I think that on a cost-benefit basis, she is better off to stay on Mobic than not be on Mobic, since the alternative treatments are not acceptable or have already been found wanting.”[7]
[7]CB 44c
29 It is the plaintiff’s evidence that while Mobic substantially improved the symptoms associated with her neck condition, she ceased to take Mobic because of the impact it was having upon her stomach. No issue was taken with that evidence.
30 Having regard to the position adopted by Mr Hall that, in the absence of management by Mobic, the plaintiff suffered from significant symptoms in her cervical spine and right shoulder, I am satisfied that the combination of that evidence and the plaintiff’s cessation of the use of Mobic establishes a clear organic explanation for the symptoms which the plaintiff continues to suffer in her right arm, shoulder and right hand.
31 On 24 March 2016, the plaintiff was examined by Mr Thomas Kossmann, an orthopaedic surgeon, at which time Mr Kossmann opined that the plaintiff presented with injuries the subject of her work process which gave rise to:
“1. Pain and movement restriction right shoulder on the basis of degenerative changes acromioclavicular joint, subacromial bursitis and impingement; meanwhile operated ongoing symptomatology
2. Movement restriction left shoulder
3. Degenerative changes cervical spine affecting in particular the C5/6 and C6/7 levels with disc bulges and facet pathology.”[8]
[8]CB 56
32 Mr Kossmann opined that the plaintiff’s condition was unlikely to improve, commenting that the plaintiff continued to suffer from pain in her cervical spine and movement restriction in both shoulder joints, more on the right than the left, and that her condition had substantially stabilised.[9]
[9]CB 56
33 In a report dated 27 April 2016, Dr Helen Sutcliffe, occupational physician, opined that an MRI of the right shoulder demonstrated subacromial bursitis and a SLAP lesion extending from the 11 o’clock to the 1 o’clock position; that the plaintiff sustained a work-related injury to the right shoulder as demonstrated by the MRI scan, and that the aggravation of the degenerative changes in the plaintiff’s cervical spine with which she presented were likely to be related to her work injury. Further, Dr Sutcliffe disagreed with the opinion expressed by Dr Bloom (to which I will refer) that the plaintiff’s symptoms of pain were sponsored by something other than an organic cause.
34 The evidence to which I have referred above provides a persuasive basis to support a finding that the plaintiff presents at the present time with an impairment of function in her right arm which is organically based.
35 Whilst the medical evidence relied upon by the defendant in this instance is clearly to the contrary, I find that evidence to be unpersuasive for the following reasons.
36 In his report, Mr Kossmann commented as follows upon the opinion expressed by Mr Rodney Simm, an orthopaedic surgeon, who, in a report dated 2 April 2015, has opined on behalf of the defendant in this instance:
“In conclusion, taking into account the chronology of events regarding Ms Aldridge’s right shoulder operation and the pre and post-operative investigations regarding her cervical spine pathology, Mr Rodney Simm’s criticism has to be seen in a different light. Whilst I agree with some aspects of his criticism, I disagree with other parts. It is sometimes extremely difficult to distinguish between symptoms of cervical spine pathology and shoulder joint pathology, in particular if both pathologies appear at the same time. In my opinion Mr Chehata has done all what he can doe (sic) to exclude a cervical spine pathology mimicking the right shoulder pathology.”[10]
[10]CB 58
37 It is clear in making those comments that Mr Kossmann was clearly referring to the opinion expressed by Mr Simm that the plaintiff never presented with a lesion in her right shoulder and that her right shoulder symptoms, at all material times, emanated from her cervical spine.
38 Having regard to:
· The findings of the MRI scan taken of the plaintiff’s right shoulder on 4 April 2012, the report of which concluded as follows:
“Mild to moderate ACJ arthropathy.
Supraspinatus tendon is intact. Infraspinatus tendinopathy.
Mild subacromial bursitis.
SLAP lesion extends from 11 to 1 o’clock position. Sublabral fluid signal cleft at the anterior superior labrum may represent a sublabral sulcus, rather than further extension of the SLAP tear.
No definite MRI signs of adhesive capsulitis.”[11]
[11]CB 171
· the unequivocal opinion expressed by Mr Chehata that the plaintiff presented with a SLAP tear which required surgical management, and the opinion of Mr Kossmann to the same effect; and
· the surgery undertaken by Mr Chehata, which elicited an improvement in the plaintiff’s symptoms;
I find the opinion expressed by Mr Simm as to this issue to be unpersuasive.
39 It is clear that in expressing his opinion that the plaintiff presents with a Chronic Pain Syndrome with Non-Organic Features Mr Simm was commenting upon the condition with which the plaintiff presents in her cervical spine.
40 It is further clear that that opinion was based upon his view that the plaintiff, at no time, presented with an intrinsic condition of the right shoulder, and that the plaintiff’s symptoms have always been attributable to the presence of degenerative cervical disc pathology.
41 Given the finding which I previously made, that I do not accept this position by Mr Simm, I am satisfied that the report of Mr Simm has no probative value upon the effect which the organic injury sustained by the plaintiff to her right shoulder has upon her capacity for employment.
42 As to any discrepancy which may have arisen between the plaintiff’s ability to move her head when she presented to Mr Simm and that which she demonstrated in the DVD surveillance, I am satisfied that this may well be accounted for by the plaintiff’s evidence as to the variable level of her symptoms particularly in the circumstances in which Mr Simm found the plaintiff not to be exhibiting any signs of deliberate exaggeration.
43 Mr Michael Bloom, an occupational physician, in a report dated 11 May 2015, commented:
“Despite normal medical imaging findings of the right shoulder, her right shoulder was treated surgically in mid August 2012, and according to her treating Orthopaedic Surgeon, the outcome of this surgery was very good.”[12]
[12]CB 142
44 I find this statement by Mr Bloom to be a mis-statement of the evidence given:
· the finding of the MRI scan taken of the plaintiff’s right shoulder on 4 April 2012 to which I have previously referred which diagnosed the presence of a SLAP lesion;
· the final position of Mr Chehata in his report dated January 2014, in which he commented, notwithstanding the marked improvement associated with the plaintiff’s surgery, that she was unable to perform light duties and she was able only to work “3-4 hours in the morning three times a week, but after that she would require sleep because of the ongoing ache in the shoulder”.[13]
[13]CB 43
45 It is clear that in opining that the plaintiff presented to him in 2005 with a condition which was sponsored by a Pain Syndrome unassociated with any organic condition Dr Bloom did so relying upon his position that the plaintiff had recovered well from the surgery undertaken by Mr Chehata and had never presented with pathology in her shoulder which required surgical managements. I am satisfied that, in arriving at that conclusion, Dr Bloom was mistaken and accordingly that his opinion as to the cause of the plaintiff’s presentation lacks persuasion.
46 For these reasons I do not accept the opinion by Dr Bloom that the plaintiff presents with symptoms which are non-organic in origin.
47 Further, I am satisfied that in undertaking his analysis as to the plaintiff’s current capacity for suitable employment, Dr Bloom has done so on the basis of an understatement of the plaintiff’s symptoms and an overstatement of her capacity for activity. For these reasons I find Dr Bloom’s opinion as to that issue to lack any persuasive value.
48 For the reasons set out above, I am satisfied:
· that the plaintiff presents with an organic condition in her right shoulder;
· that the disability in the plaintiff’s right upper limb:
(i) stems primarily from the disability in the plaintiff’s right shoulder emanating from the organic injury sustained by her to her shoulder in the course of her employment with the defendant;
(ii) is most probably heightened, to some extent, by symptoms which stem from an asymptomatic degenerative condition in her cervical spine, which was exacerbated by her work process, and continues to be so.
Analysis as to the Plaintiff’s capacity for work
49 In undertaking this analysis, I do so focusing solely upon the incapacity which the plaintiff presents in her right upper limb and excluding:
· any incapacity associated with the condition in the plaintiff’s cervical spine, insofar as that condition causes symptoms in her neck or head;
· the influence of any symptoms associated with the condition with which the plaintiff presents in her lumbar spine or right knee.
50 Further, I undertake the analysis paying due attention to the fact that the plaintiff has an obligation to establish her incapacity to generate a level of income which exceeds the statutory threshold is permanent and arises in the context of her obligation to undergo suitable and appropriate rehabilitation.
51 It is agreed by the parties that in undertaking the analysis as to the post-injury income which the plaintiff is capable of generating in suitable employment my analysis should be confined to the occupations identified in the Nabenet report of 26 June 2014, namely:
(i) Call-centre work as a claims assistant, employed by AAMI;
(ii) Clerical work as a receptionist-administration worker, employed by Inspiro;
(iii) An administrative assistant employed by Loan Market; or
(iv) An administrative assistant employed by Job Placement Australia.
52 It is clear that in all of these occupations the use of a computer keyboard is of critical importance.
53 The work involved in call-centre work is described as follows:
“… the main physical demand associated with this role is sitting at a computer work station and frequent use of the keyboard.”[14]
[14]CB 163
54 A receptionist-administration worker employed by Inspiro must undertake computer-based tasks and possess proficiency in Microsoft software, the internet and the ability to use electronic databases.
55 The work of an administrative assistant employed by Loan Market is described as:
· involving a significant component of computer-based work;
· requiring strong computer skills and the ability to work quickly;
· involving duties including entering loan applications into a database, file management and follow-ups, diary management and appointment settings, client, lender and business contact liaisons, most of which, in my opinion, would be likely to involve keyboard-related activity.
56 The occupation of administrative assistant at Job Placement Australia is described as work undertaken predominantly seated at a computer workstation and clearly involves a significant component of keyboard use.
57 In his report dated 6 May 2016, Mr Bill Radley, a psychologist and vocational assessment specialist, opines that the plaintiff has no capacity for occupational retraining, and identifies one of the factors giving rise to that incapacity being the plaintiff’s limited ability to make use of her dominant right arm and shoulder.
58 In the course of his assessment of the plaintiff, Mr Radley administered a number of vocational and intellectual tests.
59 On the basis of those tests and his interview with the plaintiff, Mr Radley opined that her presentation was such that:
“… she was not suited to work of a public contact nature”
notwithstanding that he found the plaintiff to present as:
“… quiet, cooperative, candid and open, and she seemed to provide a reasonably honest and reliable account of herself and her injury without embellishment.”
60 As to the latter opinion expressed by Mr Radley, I formed an identical opinion of the plaintiff’s presentation, and I am satisfied that I should rely on that opinion when assessing the range of post-employment activity which would represent suitable employment for the plaintiff.
61 It is clear that the plaintiff has no specific proficiency in the operation of a computer. Further, no issue was taken with the plaintiff’s evidence that she was a one-finger typist.
62 Although the plaintiff gave no evidence as to her tolerance for computer-based activity, she described her ability to work at a sewing machine to be limited by the presence of neck and shoulder pain, to 15 or 20 minutes. I am satisfied that it is probable that the plaintiff would have a similar tolerance for keyboard-related activities.
63 Taking into account the plaintiff’s limited use and protection of her right arm as demonstrated by the DVD evidence in this instance, when considered in the context of my findings as to the medical evidence, I am satisfied that:
· The plaintiff is unlikely to be capable of retraining to develop the computer-operating skills which she would be required to possess in order to gain employment in any of the four employment activities to which I have referred having regard to the plaintiff’s age and her level of skills at the current time; and
· the plaintiff would be unlikely, by reason of the condition of her shoulder, to develop the physical endurance necessary to undertake the level of keyboard activity involved in each of these occupations on a full or even part-time basis.
64 In making that finding, I do so on the basis that I am satisfied that the evidence establishes that the plaintiff’s capacity for activity at the present time and in the future is unlikely to be any greater than that which existed in January 2014, which was documented by Mr Chehata as involving a capacity to work between nine and twelve hours per week.
65 There is no issue in the current case that the plaintiff is entitled to the leave which she seeks in this instance should I be satisfied that her post-injury capacity for suitable employment would not allow her to generate an income in excess of $705 per week.
66 Given my satisfaction that it is unlikely that the plaintiff would possess or gain the physical capacity to engage in any of the of the four occupations to which I have referred but that even if she were to do so it is appropriate to fix, at the high point, the plaintiff’s capacity for employment in any such activity at twelve hours per week, I am satisfied that the plaintiff has established that she has suffered a loss of earning capacity which meets the statutory threshold.
67 I am further satisfied that for the plaintiff work was an important feature of her life, as demonstrated not only by her pre-accident work history, but her return to work with which she persevered, notwithstanding the presence of her symptoms following her injury.
68 For this reason I am satisfied that the plaintiff’s loss of income meets the statutory definition of “serious”, and that the plaintiff is entitled to the leave which seeks in this application.
69 I will allow the parties to formulate, by consent, the appropriate leave order which will be made in this instance and will hear the parties upon the issue of costs.
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