Andrews v Victorian WorkCover Authority
[2012] VCC 1476
•5 October 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-06126
| DEBRA ANDREWS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 October 2012 | |
DATE OF JUDGMENT: | 5 October 2012 (Revised) | |
CASE MAY BE CITED AS: | Andrews v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1476 | |
REASONS FOR JUDGMENT
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SUBJECT: ACCIDENT COMPENSATION
CATCHWORDS: injury to the right shoulder – pain and suffering – whether the pain and suffering consequences were “serious”
LEGISLATION: Accident Compensation Act 1985, s134AB(38)(c)
CASES CITED: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
JUDGEMENT: leave granted to the plaintiff to bring a proceeding at common law pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for injuries for pain and suffering arising out of her employment with the defendant
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Arnold Dallas & McPherson |
| For the Defendant | Mr A Moulds SC with Ms S Manova | Hall & Wilcox |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 15 December 2011 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of the course of her employment with the defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr J Mighell SC appeared with Mr D Purcell of Counsel for the plaintiff and Mr A Moulds SC appeared with Ms Manova of counsel for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the right shoulder.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered her Court Book (“PCB”), pages 15 – 43D: Exhibit A.[1]
[1]The defendant relied upon the plaintiff's Court Book
6 The application is brought under the definition of “serious injury” contained ss(37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has a suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.
(b) The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being as least “very considerable”.
(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[2] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[2](2005) 14 VR 622, at paragraph 11
8 I am required by s134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
Background
9 The plaintiff was born in 1961. She is now fifty-two years of age. She is married. Her husband is a supervisor employed by the Empire Rubber. She has three children. Two are adult and independent. Her youngest is nineteen years of age and has just commenced an apprenticeship.
10 The plaintiff commenced work with the defendant in about 1999 as a machinist. The defendant conducted a business known as Empire Rubber. That business continues to operate despite the fact that the defendant is in liquidation.
The Plaintiff’s Medical History
11 The plaintiff suffered an injury to her right wrist in about August 2001. She sought medical treatment. She was told that she had suffered tenosynovitis. Her treating medical practitioner must have provided her with medical certificates so that she could undertake modified duties. She said that she worked on modified duties from 2001 up to 2006, which is the year in which he suffered an injury to her right shoulder on which this application is based.
12 The plaintiff's right wrist became swollen and painful in about August 2001. She developed a lump in her right wrist. In October 2001, she was given a cortisone injection into her right wrist. It reduced the symptoms she was experiencing in her right wrist to some extent. She was referred to Mr McCullagh, orthopaedic surgeon, who saw her on one occasion. He did not provide her with any treatment.
13 The plaintiff said that her right wrist was a problem for her between 2001 and 2006. So much so, that she received treatment at the Mt Alvernia Hospital. She believed that the treatment was physical therapy, and probably physiotherapy.
14 The plaintiff said that in early 2004, she suffered symptoms of a different kind in her right hand. She experienced numbness, stiffness and a pulling sensation in the fingers of her right hand. She was bothered by those symptoms at night. She experienced stiffness and aching in the mornings in her right wrist and in the fingers of her right hand.
15 The plaintiff took medication to treat the pain in her right wrist and hand. She used Nurofen.
16 In about June 2004, the plaintiff suffered a muscular problem affecting her lower back. It was work-related. The defendant referred her to the Kangaroo Flat Healthworks. She also saw her own medical practitioner at the Primary Care Clinic. She was prescribed Nurofen and Panadeine Forte to treat her lower back condition. She said that she could not tolerate the Panadeine Forte. She could not remember being prescribed any other medication.[3]
[3]Transcript 5-10
17 The plaintiff said that the pain she was experiencing in her lower back remained a problem for her through 2004 and 2005. She had muscle spasms in her lower back. She had two days off work for her lower back condition.
18 The plaintiff suffered the injury to her right shoulder on 2 February 2006. She saw Dr Snow, general practitioner, that day. She described him as the company doctor. On that occasion, she told him that she had suffered an injury to her right shoulder, and she also told him that she was experiencing pain in her right wrist.
The Right Shoulder Injury
19 The plaintiff saw Dr Snow on 3 February 2006 for treatment for her right shoulder injury. The plaintiff believed that she saw him on 2 February 2006, that is, the day when the incident occurred, but in his report dated 28 April 2010,[4] it is clear that he first treated the plaintiff for that injury on 3 February 2006.
[4]PCB 26-27
20 Dr Snow referred the plaintiff to have an ultrasound and a plain x-ray.[5] The ultrasound showed that the tendons in her right shoulder were intact. The plain x-ray showed calcific changes in a tendon. She was prescribed Voltaren.
[5]PCB 28
21 Dr Snow reviewed the plaintiff on 6 February 2006. It was on that occasion that she told him that she had pain in her right wrist. He referred her to have physiotherapy, and I assume it was for her right shoulder, but it is unclear whether it involved treatment for her right wrist as well.
22 Dr Snow reviewed the plaintiff on 10 February 2006. He gave her a corticosteroid injection into her right shoulder. On review on 20 February 2006, she told him that she had experienced significant improvement, and on examination, she had mild discomfort with internal rotation only. She continued working on light duties. Dr Snow referred to her capacity to continue working on “light duties with her right arm”. It is unclear whether he intended to include the right shoulder and the right wrist, or was only referring to the right shoulder.
23 On review in March and April 2006, Dr Snow noted that the plaintiff was experiencing persisting discomfort in her right shoulder, so he prescribed her Mobic (an anti-inflammatory medication) on 20 April 2006. He last reviewed the plaintiff on 18 May 2006, when she told him that she had experienced further pain in her right shoulder, pulling on rubber at work. The reference to pulling on rubber is a reference to one of the tasks which the plaintiff was required to perform in her work with the defendant operating a press machine.
24 The plaintiff also saw Dr Patel, general practitioner, for treatment for her right shoulder injury. He diagnosed that she was suffering from calcific tendinitis of the right supraspinatus tendon.[6]
[6]PCB 24-25
25 The plaintiff later saw Dr Botros, general practitioner, who practices from the Lowndes Street Clinic. It is the same clinic from which Dr Patel practices. It would appear that Dr Botros took over the treatment of the plaintiff’s right shoulder from 3 April 2007, when the plaintiff first saw him.
26 Dr Botros diagnosed that the plaintiff was suffering from right shoulder tendinopathy. He referred the plaintiff to have physiotherapy. He was of the opinion that the plaintiff would need to continue with physiotherapy and perhaps other therapies such as osteopathic or chiropractic treatment. He said that she needed to avoid duties which would trigger her pain. In his report dated 10 May 2010,[7] he was of the opinion that her prognosis was not very good because the condition from which she was suffering usually did not clear up completely, and even if she improved, there was a tendency towards recurrence and worsening of the condition.
[7]PCB 34
27 In his report dated 1 August 2012,[8] Dr Botros said that the plaintiff was suffering from chronic pain and disability. He said that she was taking analgesics in the form of Panadol, Nurofen Plus and Voltaren. He said that she had a cortisone injection into her right shoulder, and in fact the plaintiff has had four such injections. The last one was before Christmas 2011.[9] The plaintiff said that the last injection did not ameliorate her symptoms, but the injection she had before that one had ameliorated her symptoms to some extent.[10]
[8]PCB 35
[9]Transcript 10-11
[10]Transcript 11
28 Dr Botros was of the opinion that the injury to the right shoulder was still affecting the plaintiff. There had been no significant improvement. Dr Botros said that she was still incapacitated for work; however, she could perform light duties or undertake shorter hours, which he considered would be an appropriate way for her to cope with work.
29 The plaintiff said that the last occasion she had physiotherapy was in late 2010. She said that she has been advised to have more physiotherapy, but she did not indicate whether she will or not. Her evidence on that score was vague.[11] She said she was undertaking exercises at home, which were helping her as much as she thought physiotherapy would.
[11]Transcript 11-12
30 At present, the plaintiff uses Nurofen and Voltaren for pain relief. The plaintiff said that she uses Voltaren when the pain is particularly bad. That might be about once a fortnight or so.[12] She uses Nurofen a couple of times a week. She might take as many as six at a time. She also uses Panadol.[13] She has found both Nurofen and Voltaren to upset her stomach. As a result, she seems to use both forms of medication when the pain she experiences is significant enough for her to resort to those forms of medication.[14]
[12]Transcript 12
[13]Transcript 13
[14]Transcript 12, 14 and 28
31 Ms Manova cross examined the plaintiff regarding her use of medication, and what she told a number of examining medical practitioners about her use of medication. For example, what the plaintiff said to Mr Kossmann, orthopaedic surgeon, that she uses non-steroidal anti-inflammatory medication daily,[15] and Dr Kostos, rheumatologist, that she uses Voltaren, Voltaren Emulgel and Panadol,[16] are at odds with her evidence. Furthermore, Ms Manova put to the plaintiff that she has obtained very few prescriptions for Voltaren from Dr Botros. The plaintiff said that she obtains an over-the-counter version of Voltaren in addition to the prescriptions that she has been provided.[17]
[15]PCB 36
[16]PCB 41
[17]PCB 15
The Other Medical Evidence
32 There is little need to review the remaining medical evidence in any detail because the opinions of Mr Kossmann and Dr Kostos appear to be consonant with the opinions of the other medical practitioners to whom I have already made reference.
33 Mr Kossmann found no wasting of the musculature surrounding the plaintiff’s right shoulder. He found some mild tenderness over the right greater tuberosity, and limitation of movement and tenderness to stressing of the supraspinatus tendon.
34 Mr Kossmann was of the opinion that the plaintiff’s injury was unlikely to improve. He suggested that she have an MRI scan to assess the integrity of her right rotator cuff. He suggested that surgery might improve the condition of her right shoulder by addressing the calcification in her rotator cuff; however, he did not recommend that she undergo surgery.[18]
[18]PCB 37-38
35 Dr Kostos found that the impingement test of her right shoulder returned a positive result. He found diffuse tenderness around her right shoulder girdle. He made a similar suggestion to that of Mr Kossmann regarding improvement by further intervention, and in that respect, it would seem he was considering a surgical option.[19]
[19]PCB 42-43
The Plaintiff's Work History
36 The reasons why the plaintiff left her employment with Empire Rubber, and the work she now undertakes, became an important part of the defendant’s attack upon the plaintiff's application for serious injury.
37 What became clear was that the plaintiff had one day off following the occurrence of the right shoulder injury, and then went on to modified duties. The plaintiff said that she went into the trimming area, and then onto press machines. She said that she only had to put little bits of rubber into a press machine, which meant that she did not have to use her right arm. The plaintiff qualified that by saying that she used her right arm to do some things in connection with the work that she was required to do. She continued working 40 hours per week until April 2009, when she was made redundant.[20]
[20]Transcript 16
38 Following the redundancy, the plaintiff worked as a traffic controller, and then obtained employment as a cleaner with Mr Robert Seilpot.[21] She said that had she not been made redundant, she would have continued working full time with Empire Rubber on modified duties.[22]
[21]The plaintiff was unsure of the spelling of the surname
[22]Transcript 17
39 The cleaning work which the plaintiff presently undertakes is done in tandem with another woman named Maria. The impression I obtained was that the plaintiff and Maria work in the local Bendigo area, and occasionally they go to country centres like Castlemaine, Kyneton, Maryborough, Echuca and Woodend.
40 The impression I obtained from the plaintiff was that the cleaning work was undertaken to clean formally rented premises to bring them up to a reasonable state for the premises to be rented again. It was also my impression that the cleaning work involves the whole premises, and is an exercise which takes many hours; for example, the cleaning exercise in Echuca would involve one house and would take six to seven hours to clean.
41 The plaintiff said that Maria would do the heavier cleaning work, such as the bathrooms and the vacuuming. The plaintiff involves herself in wiping down benches, bench tops cupboards, window sills and windows; mopping; sweeping; cleaning stoves, and otherwise sharing cleaning work with Maria to bring the premises up to a tenantable condition.[23]
[23]Transcript 17-21
42 The plaintiff said that the cleaning work varies between five to twenty-five hours per week. It seems that she works whenever an offer of work is made. I infer that, because the plaintiff gave no evidence that she has refused to take up work of that kind when it has been offered. She seems to work about 20 hours per week.
Serious Injury
43 In Dwyer v Calco Timbers Pty Ltd (No 2),[24] Ashley JA made the observation that the impairment of a body function is concerned with what has been lost, but the significance of what has been lost may be informed to an extent by what has been retained.
[24][2008] VSCA 260
44 That observation is of importance in this application because, like all applications for serious injury, the applicant concentrates on what has been lost, and the respondent concentrates on what has been retained.
45 The plaintiff has undoubtedly retained a capacity to engage in work, social, recreational and domestic activities to a point. However, the nature and extent of the injury to her right shoulder prevents her from engaging in the same to a full extent. I have carefully considered the evidence of the plaintiff; the medical evidence; the oral evidence of the plaintiff, and the submissions of Mr Mighell and Ms Manova. The conclusion I have reached is that the plaintiff's pain and suffering consequences are “serious”.
46 The basis upon which I have reached that conclusion is as follows:
· The plaintiff has suffered a disabling injury to her right shoulder which has not responded to the treatment which has been provided for her benefit thus far. She suffers variable pain with flare-ups, which occur reasonably frequently. Her sleep is interrupted by the pain she experiences, and a wide range of her day-to-day activities are the subject of interference.
· The plaintiff has been referred to physiotherapy. She has been referred to have four injections under ultrasound guidance. None have produced a lasting amelioration of her symptoms. The last injection provided before Christmas 2011 was painful, and that, together with the fact that none of the injections have provided a lasting amelioration, has resulted in the plaintiff deciding not to have any more. The plaintiff’s reaction is entirely understandable.
· The plaintiff has no option but to resort to symptomatic treatment. She has used Nurofen; Voltaren, both prescribed and an over-the-counter form; Voltaren Emulgel, which is a cream applied to her shoulder, and a massage device which she uses on her right shoulder. The plaintiff uses medication reasonably frequently. She uses Nurofen a couple of times a week, taking up to six tablets at the time, and Voltaren less frequently, when the pain is particularly bad.
· The plaintiff is unable to tolerate Nurofen and Voltaren. The inability of her system to ingest and tolerate that kind of medication means that she is unable to ameliorate the symptoms as effectively as she could if she was able to tolerate the medication better.
· The preponderance of the medical opinions is that without some other kind of intervention, the plaintiff will experience persisting symptoms of the kind I will refer to below. Whilst surgery has been mentioned, I am not persuaded that it has been seriously considered, because the plaintiff has not been referred to a surgeon for an assessment and investigation regarding whether surgery is a primary option. However, in the absence of any such intervention, it is clear that the plaintiff will continue to suffer from persisting symptoms in her right shoulder.
· Whilst the plaintiff's right wrist injury was obviously a sufficient problem to see her translated to light duties with Empire Rubber, it is clear enough to me that her right shoulder injury contributed to the necessity for her to perform light work. She said that she would not be able to do her heavier pre-injury work with her right shoulder, and I understood that to mean that if she did not have the injury to her right wrist, then her right shoulder injury would have prevented her from being able to undertake unrestricted work.
· It would be easy to underestimate the vigorous nature of the domestic work, and to blithely suggest that housecleaning is in some way work that can be easily tolerated. It is clear enough to me that the work which the plaintiff actually does with Maria is almost exclusively manual work which would inevitably bring her right shoulder and arm into play. She is restricted in what cleaning tasks she can do.
· Similarly, engaging in domestic tasks, such as washing the dishes; ironing; peeling vegetables; preparing meals; general cleaning, such as vacuuming; hanging clothes out on the line; gardening and driving a car are of a manual nature and would require forceful movements which would inevitably bring the plaintiff's right shoulder and arm into play. She is also restricted in what she can do on the domestic front.
47 I have read the plaintiff's two affidavits and have read the transcript of her oral evidence. It seems to me that there is very little, if anything, controversial in any of that evidence. The plaintiff gave her evidence in a very straightforward and simple matter. I see no reason why I should not accept the evidence of the plaintiff in whole.
48 What fortifies me in accepting her evidence in whole is that when a comparison is made between the plaintiff's evidence and what she told the examining medical practitioners, it is clear that they accepted her as a reasonable historian, and found that there was a pathological basis for the complaints that she has made of pain and disablement.
49 It seems to me that the plaintiff has suffered losses across the range of the activities which were part of her day-to-day life. Her employment with Empire Rubber was, and her present employment is, restricted because of the nature and extent of the injury to her right shoulder. She needs medication to ameliorate the symptoms of pain and restriction of movement. The plaintiff’s domestic life is interfered with to a significant degree by relatively persistent pain; interference with sleep; the necessity to take medication; the necessity to call on members of the family to undertake routine domestic tasks, such as washing dishes and ironing et cetera. All of the above speak of the kind of consequences which are consistent with serious injury.
Conclusion
50 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering arising out of her employment with the defendant.
51 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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