Armenio v Victorian WorkCover Authority
[2016] VCC 1906
•13 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-04356
| PETER ARMENIO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 November 2016 | |
DATE OF JUDGMENT: | 13 December 2016 | |
CASE MAY BE CITED AS: | Armenio v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1906 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right shoulder – subsequent incident – whether the subsequent incident resulted in an exacerbation or aggravation of the initial injury – coincidental injury to the right hand – concurrent injuries – requirement to identify the consequences of each injury – onset of a secondary psychiatric reaction – whether any disentangling required – whether the pain and suffering consequences are “serious” – whether the loss in earning capacity consequences are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Jayatilake v Toyota Motor Corporation Australia Ltd(2008) 20 VR 605
Judgment: The plaintiff is granted leave to bring a proceeding at common law for both pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Coldwell with Ms N Crowe | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr J Batten | Russell Kennedy Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff is a 58-year-old man who was employed by Reece Pty Ltd (“Reece”) as a driver coordinator/storeman working 38 hours per week. He suffered an injury to his right shoulder on 2 June 2011 lifting heavy bags of concrete onto the carrying tray of a utility motor vehicle.
2 The plaintiff’s application is brought under paragraph (a) of the definition of “serious injury”. He claims that the pain and suffering consequences and the loss of earning capacity consequences are “serious”, and that he should be granted leave to bring a proceeding at common law to recover damages.
3 Mr Coldwell, leading counsel, appeared with Ms Crowe of counsel for the plaintiff. Mr Batten of counsel appeared for the defendant.
4 The following evidence was adduced at the trial of the application:
· the plaintiff gave evidence and was cross-examined
· the plaintiff tendered his court book (“PCB”) pages 14-116; 131-148: Exhibit A; and
· the defendant tendered its Court book (“DCB”) pages 1-8; 18a-18h; 29-39; 57-69; 76-147p; 150a-151: Exhibit 1.
5 The defendant admitted that the plaintiff obtained treatment from Mr Chan, physiotherapist, on 29 occasions between 17 October 2012 and 3 June 2013.
A summary of the Plaintiff’s evidence
6 The plaintiff left school after completing Year 10. He initially worked in a factory, and then completed an apprenticeship as a motor mechanic over four years. Between completing his apprenticeship and commencing work with the defendant on 12 July 2010, he operated a number of service stations with mechanical repair shops. That work was interrupted by other work as a courier.[1]
[1]Transcript 19-24
7 On 2 June 2011, the plaintiff suffered an injury to his right shoulder when lifting heavy bags of concrete onto the carrying tray of a utility motor vehicle. He described suffering a sharp pain in his right shoulder, and that the injury to his right shoulder “hurt a fair bit”.
8 The plaintiff attended Dr Vardy, general practitioner.[2] Initially, Dr Vardy considered that the plaintiff had suffered a rotator cuff-type injury because he was unable to lift his arm above shoulder height. He referred him to have an x‑ray, an ultrasound and physiotherapy, and he referred him to Mr Booth, orthopaedic surgeon.
[2]PCB 146
9 The plaintiff first saw Mr Booth on 31 October 2011.[3] Mr Booth was aware that the plaintiff was suffering from diabetes. It was a subject on which he made comment, because the frozen shoulder with which the plaintiff presented is apparently common amongst individuals who suffer from diabetes.
[3]DCB 18a
10 Mr Booth recommended that the plaintiff undergo a hydrodilatation with saline and large doses of steroid injected into the glenohumeral joint, which would have the effect of stretching the joint. It would appear that this was performed by Dr Prime, radiologist, on 12 November 2011.[4] This gave the plaintiff short-term relief only.[5]
[4]PCB 16 and 107. The plaintiff said that Dr Booth performed the hydrodilatation; however, the clinical notes on each occasion a hydrodilatation was performed have Dr Prime as the writer of the clinical note which has led me to conclude that he performed each of them
[5]Transcript 60
11 Dr Vardy saw the plaintiff on the following occasions:[6]
[6]PCB 146-148
· On 8 July 2011, he recorded that the plaintiff could not lift his arm sideways.
· On 15 July 2011, he recorded that the plaintiff had attempted lighter work. The plan was to submit a WorkCover claim if his treatment was unsuccessful.
· On 18 July 2011, he recorded that the plaintiff was to put in, or had put in, a WorkCover claim. He also recorded that the plaintiff was having physiotherapy,
· On 27 July 2011, he again recorded discussion with the plaintiff regarding doing light work and the need to avoid lifting,
· On 5 August 2011, he recorded that the plaintiff’s shoulder was clicking and aching at night. The plaintiff remained at work, avoiding lifting above shoulder height. It would appear that the plaintiff was given a certificate, and I assume a WorkCover certificate, but he does not describe the content of the certificate.
· On 26 August 2011, he recorded that the plaintiff’s shoulder was “still playing up”. There is a cryptic note mentioning Mr Booth, and that the plaintiff should avoid lifting above shoulder level to be noted on a WorkCover form.
· On 2 November 2011, he recorded that Mr Booth was to undertake hydrodilatation for capsulitis of the right shoulder.
· On 15 November 2011, he recorded that the plaintiff had a cortisone injection, and that the plaintiff needed to avoid heavy lifting, but he was able to drive a truck full time.
12 On 14 January 2012, the plaintiff slipped and fell on a wet floor, landing on his back and right arm. In his first affidavit, he described the result of the slip and fall as “my right shoulder worsened”.[7]
[7]PCB 17
13 The defendant submitted that there was a palpable change in the plaintiff’s symptoms and capacity for work following the slip and fall. It raised the issue as to whether it was the claimed incident that is now responsible for the plaintiff’s consequences, or both the claimed incident and the slip and fall.
14 I am not satisfied that the slip and fall resulted in the plaintiff suffering any additional pathology nor additional symptoms which require me to consider whether it is responsible for any of the plaintiff’s consequences.
15 The plaintiff saw Dr Vardy on 16 January 2012. He recorded that the plaintiff had suffered the slip and fall. He noted that the plaintiff was suffering pain in his right shoulder and was unable to lift his right shoulder above 90 degrees. He prescribed the plaintiff Panadeine Forte and gave him five days off work.
16 On 20 January 2012, Dr Vardy recorded that the plaintiff had improved and had returned to work, but was to avoid lifting. He either referred him back to have physiotherapy, or advised him to continue with physiotherapy. It is unclear to me which of those is the case.
17 On 1 February 2012, Dr Vardy recorded that the plaintiff was still having difficulty with his right shoulder, but the pain was “localizing” (sic).
18 In his report dated 23 August 2013, Dr Vardy chose to describe results of the slip and fall in this way: “I think this flared his shoulder ... .”[8]A flare-up, as commonly understood, is a worsening of symptoms, not the worsening of the underlying pathology which results in symptoms. None of the medical practitioners whose reports have been tendered describe the slip and fall as resulting in a worsening of the pathology.
[8]PCB 26
19 The defendant submitted that the results of the fall were more than just a flare-up, and that is evidenced by the change in the plaintiff’s work tasks and the treatment he required.
20 The plaintiff was referred back to Mr Booth. Mr Booth referred him to have an MRI scan, which was undertaken on 6 June 2012.[9] The radiologist considered that it demonstrated, among other things, a partial thickness tear of the supraspinatus tendon; however, that was shown not to be the case when the plaintiff underwent surgery.
[9]PCB 109
21 Dr Prime performed a further hydrodilatation on 13 July 2012,[10] and again on 16 July 2015.[11]
[10]PCB 108
[11]PCB 108a
22 The plaintiff’s right shoulder did not improve despite all of this treatment. Mr Booth referred him to Mr Nguyen, orthopaedic surgeon, who the plaintiff first saw on 2 October 2012. He considered that the plaintiff was suffering the effects of adhesive capsulitis or frozen shoulder. He operated on the plaintiff’s right shoulder on 15 October 2012. There was no rotator cuff tear as suggested by the MRI scan. He found a very thickened, scarred and inflamed subacromial bursa, a large thickened type 2 acromial spur and severe arthritis and osteophytes invariably in the acromioclavicular joint. He performed a subacromial bursectomy, an arthroscopic acromioplasty and an acromioclavicular joint resection arthroplasty.[12]
[12]PCB 31-33
23 Mr Nguyen reviewed the plaintiff six weeks after surgery, on 21 February 2013 and 23 January 2014. On 23 January 2014, Mr Nguyen found tenderness anterior to the shoulder, and after examining the movement of the plaintiff’s right shoulder, he diagnosed a mild recurrence of adhesive capsulitis. He considered that the plaintiff had a good prognosis to regain full function of his right shoulder. He recommended that the plaintiff undergo a further hydrodilatation.[13]
[13]PCB 36-39, and DCB 18a-18f
24 Mr Nguyen provided a report to a company known as Zedmed Pty Ltd dated 19 September 2014. He was asked to consider the plaintiff’s capacity for work. He said that the plaintiff had a capacity for light duties not involving heavy lifting, pushing or repetitive lifting above shoulder height. He added that the plaintiff had the capacity to perform at least part-time duties, and should be able to increase to full-time duties as his right shoulder function improved.[14]
[14]DCB 18f
25 While the plaintiff was under the care of Mr Nguyen, he was referred to Mr Chan for physiotherapy. Mr Chan treated the plaintiff on 29 occasions between 17 October 2012 and 3 June 2013. Although Mr Nguyen expressed the opinion that the plaintiff was improving, the plaintiff continued to suffer from adhesive capsulitis warranting work restrictions and physiotherapy treatment.
26 Dr Vardy has continued to treat the plaintiff. He considered, in 2013, that the plaintiff’s right shoulder was permanently weakened, rendering him incapacitated for work as a mechanic or bus driver driving heavy buses, or in heavy work. When Dr Vardy provided his last report dated 16 April 2016, he described the plaintiff’s symptoms as pain in his right shoulder which lasted a couple of days after use to any extent, and an inability to lift his arm above shoulder level. He considered that the plaintiff had suffered a permanent injury which incapacitated him from work and non-working activities.[15]
[15]PCB 26-30
27 The plaintiff was cross-examined extensively regarding the slip and fall. He conceded that he asked for manual assistance which constituted a change in his duties; however, he said that after initially suffering the injury to his right shoulder, he called on help from “the boys to help him a bit more …”, and that he then watched how he lifted objects.[16] Therefore, it was not as if the plaintiff only resorted to asking for manual assistance after the slip and fall. He denied that the pain in his right shoulder increased after the slip and fall. The effect of his evidence was that the treatment which he underwent after the slip and fall was not due either in whole or in part to a further injury resulting from slip and fall.[17]
[16]Transcript 59
[17]Transcript 27-28
28 The plaintiff lodged two Claims for Compensation. The first was lodged for his right shoulder which occurred on 2 June 2011.[18] The second was lodged for the slip and fall.[19]The defendant submitted that the lodgement of two separate claims is important because it signifies the distinction which the plaintiff drew between the initial injury and an exacerbation or aggravation of it. I do not accept that the mere lodgement of two separate claims overwhelms the primary evidence which I have analysed which demonstrates to me that I should accept the plaintiff’s evidence that the slip and fall was of no consequence in terms of causing an exacerbation or aggravation of his pre-existing right shoulder injury.
[18]DCB 1-2
[19]DCB 3-4
29 The plaintiff was off work after the surgery until 3 December 2012 and was in receipt of worker’s compensation payments. He resigned from his employment with Reece in November 2012 because he was unable to undertake the heavier aspects of his usual work.[20] He found an alternative job with a bus line as a driver.
[20]PCB 17
30 The plaintiff drove what he described as all types of buses, “big, small, old, new”.[21]He resigned from that job on 8 August 2013 because the pain in his right shoulder was increasing. Under cross-examination, he said that he was able to do the work, but “not without paying” which I understood to mean that he could not tolerate the tasks he was required to perform in his job because of his right shoulder.[22]
[21]Transcript 30
[22]Transcript 30
31 Under cross-examination, the plaintiff agreed that his letter of resignation cited personal reasons for the resignation.[23] His attention was directed to an entry in Dr Vardy’s clinical notes of 2 August 2013 in which Dr Vardy recorded that the plaintiff had suffered a “massive headache after diesel fumes”.[24]The plaintiff was asked whether this was the reason that he resigned. The plaintiff denied it was the reason, and said that he resigned because “my shoulder was giving me grief”.[25]The plaintiff added that at the time he resigned, he was of the belief that his right shoulder was not improving even though he was taking Mobic and Panadeine Forte or Panadol Osteo for pain relief.[26] Under re-examination, the plaintiff was referred to Dr Vardy’s clinical note dated 10 August 2013, in which Dr Vardy noted that the work with the bus line was “too heavy for shoulder”. That was the reason the plaintiff says he stopped work, not because of the inhalation of fumes and subsequent headaches.[27]
[23]DCB 151
[24]DCB 150b
[25]Transcript 32-34
[26]Transcript 34
[27]DCB 150c
32 The plaintiff has not worked since he resigned from his job as a bus driver. He has looked for work advertised on the Internet, but has been unsuccessful in finding anything suitable.[28] Under cross-examination, he was asked about his transferable skills, the jobs he has looked for on the internet, and whether he would take up one of those jobs if it were offered to him. Whilst he said that he would take up a job if it was offered to him, it was my strong impression that the plaintiff does not believe he has the physical capacity to engage in work for which he is outfitted by training and experience nor in any of the jobs he has considered he might be able to take up.
[28]PCB 18-19 and 24 and Transcript 35-37, 42-43, 46, 49, 51-52, 54, 57, 60-62
33 The plaintiff was examined by a number of medical practitioners on a medico-legal basis. The preponderance of the current medical evidence is that he is unlikely to be able to return to suitable employment:
34 Dr Slesenger, occupational physician, first examined the plaintiff on 26 November 2013. He was engaged by the solicitors for the plaintiff. It would appear that he then treated the plaintiff. In his last report dated 19 April 2016, he provided an extensive review of the plaintiff’s history, treatment and employment prospects and concluded that the plaintiff is unlikely to return to work “in a role for which he has suitable training and experience”. He added that he does not anticipate that there will be any significant alteration in the plaintiff’s symptoms or functioning because of the chronicity of his symptoms and his poor response to treatment.[29]
[29]PCB 50-56, and in particular, at 55
35 Dr Sutcliffe, occupational physician, examined the plaintiff on 6 April 2016, and Mr Simm, orthopaedic surgeon examined the plaintiff on 27 April 2016. Dr Sutcliffe and Mr Simm both provided similar opinions to that of Dr Slesenger. Although Dr Sutcliffe proposed that perhaps the plaintiff could return to light customer service-type duties on limited hours with restrictions,[30] and Mr Simm considered that the plaintiff could return to work driving a light vehicle, but could not do manual loading and unloading of the items.[31] Mr O’Brien, orthopaedic surgeon, examined the plaintiff for the defendant on 8 September 2014. His opinion is similar to Dr Slesenger and Dr Sutcliffe.[32]
[30]PCB 74
[31]PCB 84
[32]DCB 131-134, and in particular, at 134
36 I should add at this point that it would appear that Dr Sutcliffe was under the misapprehension that the plaintiff had suffered a SLAP tear as demonstrated on the MRI scan; however, that misapprehension does not make her examination of the plaintiff any less persuasive on the issue of the injury and its interference with the function of the plaintiff’s right shoulder.
37 Mr Battlay, general surgeon, examined the plaintiff for the defendant on 1 April 2014. He was under the same misapprehension as Dr Sutcliffe about the identification of the plaintiff’s injury. When he commented on the plaintiff’s capacity for work, he considered that the plaintiff had a current work capacity, but not for his pre-injury duties. He did not specify the types of employment which the plaintiff could return to. He considered that the plaintiff needed to obtain a different job which he believed the plaintiff could do full time with restrictions on manual handling and working with his arm away from his chest wall.[33]
[33]PCB 29-35, and in particular, at 33-34
38 Dr Boffa, occupational physician, examined the plaintiff for the defendant on 23 April 2015. His opinion is very similar to Mr Battlay’s.[34]Mr Troy, general surgeon, examined the plaintiff for the defendant on 3 September 2013. His opinion is also very similar to Mr Battlay’s.[35]
[34]DCB 65-69, and in particular, at 68
[35]DCB 111-115
39 Before making any findings on the evidence, I must deal with some other issues which were raised by the defendant.
40 The plaintiff developed a carpal tunnel syndrome affecting his right hand with loss of sensation in two fingers of his right hand. Mr Nguyen undertook a right carpal tunnel release on 12 March 2014. Under cross-examination, the history taken by Mr Simm was put to the plaintiff that the surgery was unsuccessful because he has been left with persistent numbness in the lateral digits of the right hand, making it difficult for him to manipulate small objects.[36]The plaintiff denied that he has any numbness in those digits, but only tingling. He denied that whatever loss of function he has in those digits, it does not interfere with his capacity to handle small parts of motor vehicles.[37]
[36]PCB 82. The plaintiff gave a similar history to Dr Slesenger at PCB 42, 48 and 51
[37]Transcript 54-55
41 There is a clear conflict in the plaintiff’s oral evidence when compared with the histories I have just referred to. There can be no doubt that he does have tingling in those digits because he concedes as much, but where the conflict arises is whether he has accompanying numbness, and whether the combination of persisting symptoms impairs the function of his right hand.
42 In Dr Slesenger’s last report, he referred only to pins and needles in the digits which is consistent with the tingling described by the plaintiff. In his earlier two reports, he also referred to paraesthesia and weakness. The history the plaintiff gave to Mr Simm appears to be consistent with the symptoms the plaintiff had in the past rather than the present. Whilst I am troubled by the conflict, I have resolved it by preferring the evidence of the plaintiff. I consider that he gave his evidence in a forthright and truthful manner throughout.
43 Next, where two different injuries are concurrently producing pain and suffering consequences, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial.[38] The circumstances here are quite distinct from the subject matter before the Court of Appeal in Peak Engineering.[39] Under cross-examination, the plaintiff conceded that he is troubled to an extent by persistent tingling in those digits, but denies that there is any material loss of function resulting from the tingling. Consistent with the finding I made in the preceding paragraph, I accept the plaintiff’s evidence that he has tingling only, and that it is of no consequence in terms of the functioning of his right hand.
[38]See Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [24]
[39]Ibid
44 The last issue is the onset of an Adjustment Disorder with Mixed Anxiety and a Depressive State for which the plaintiff is treated by Dr Humrany, psychiatrist. He commenced treating the plaintiff on 6 August 2014. He has prescribed Pristiq to the plaintiff to treat his psychiatric condition. Although he diagnosed that the plaintiff was suffering from a psychiatric condition, he was of the opinion that it was the plaintiff’s physical injury and pain problems which are the main burden on his life in the context of the plaintiff finding suitable work consistent with his residual capacity for work. He does not attribute any material contribution by the psychiatric condition to the plaintiff’s incapacity for work, and by extension, to the plaintiff’s capacity to engage in other physical activity.
45 The issue raised by the defendant is whether the facts of this application call for disentangling of the physical consequences of the injury from the psychological or psychiatric consequences. Dr Humrany’s report makes it plain that no such disentangling is required. In any event, I am satisfied that the consequences of the injury to the plaintiff’s right shoulder are easily discerned from the psychological or psychiatric consequences.[40]
[40]Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605
My findings on the evidence
46 Firstly, I am satisfied that the plaintiff suffered an injury to his right shoulder as a consequence of the work he undertook on 2 June 2011. In any event, the defendant has conceded that the plaintiff suffered a compensable injury.
47 Secondly, I am not satisfied that the slip and fall resulted in an injury by way of an exacerbation or aggravation of the initial injury to the plaintiff’s right shoulder.
48 Thirdly, I am satisfied that the injury has been productive of pain and suffering consequences and loss of earning capacity consequences which meet the statutory test. I will return to this shortly.
49 Fourthly, I am not satisfied that the carpal tunnel syndrome or the onset of the secondary psychiatric condition are of any importance in my determination of whether the pain and suffering consequences and the loss of earning capacity consequences meet the statutory test.
50 Fifthly, I accept the plaintiff’s evidence of:
· pain in his right shoulder, but mainly a dull ache.
· intermittent stabbing, clicking and pinging in the right shoulder after physical exertion.
· occurrence of pain for no apparent reason, that is, not associated with an exacerbation due to physical exertion.
· difficulty engaging in physical exertion involving lifting, pushing, pulling and carrying.
· reliance on the left arm in preference to the dominant right arm.
· interference with sleep, waking when rolling over onto the right shoulder at night.
· reliance on Mobic, Panadeine Forte and Panadeine Osteo for pain relief. Development of stomach problems due to overuse of Mobic.
· interference with the capacity to dress and undress, for example placing his right arm into the sleeve of a shirt or jacket.
· interference with undertaking housework and gardening.
51 The plaintiff has undergone a raft of medical treatment involving conservative medical treatment, hydrodilatations, surgical treatment, physiotherapy and the use of medication, none of which has resulted in him obtaining control over the pain and restriction of movement that has resulted from the injury to his right shoulder. I consider that these consequences have had a major impact on nearly every aspect of the plaintiff’s life, and therefore, I am satisfied that the pain and suffering consequences meet the statutory test comfortably.
52 Following the plaintiff acquiring qualifications as a motor mechanic, he engaged in work in that field and as a courier until he suffered the injury. I do not have any hesitation in accepting that he has been a reasonably strong willed and hard-working man. It took the injury and its consequences to interfere with his pursuit of work with Reece forcing him to seek and obtain alternative work which he thought might relieve him of the difficulties he encountered in his work with Reece. It is precisely the step that would be expected of him in order to exploit what residual capacity for work he retained. As it turned out, his lack of qualifications, training and experience do not outfit him for any other work than the work he has undertaken over his working life.
53 Under cross-examination, the plaintiff’s motivation for work was tested, as was his investigation of suitable employment. A number of propositions were put to him which were taken from the material in the Defendant’s Court Book which suggest that there are occupations which he could pursue now.[41]I reject that evidence out of hand.
[41]The defendant tendered a large quantity of vocational material at DCB 76-147p, some of which was put to the plaintiff. Dr Vardy was asked to comment on whether any of the identified jobs were suitable. He gave a short and uninformative response (at DCB 147b). No other medical practitioner was asked for a similar opinion.
54 I prefer the evidence of Dr Vardy, who has treated the plaintiff for a very long period of time and who is in a very good position to assess the plaintiff’s motivation in the context of his known qualifications, training and experience. I am fortified in accepting his evidence that the plaintiff is effectively incapacitated for suitable employment by the opinions of Dr Slesenger and Dr Sutcliffe, who have the special expertise in the area of occupational medicine and who agree that the plaintiff is incapacitated for work in a real and practical sense.
55 It follows that I am disinclined to accept the evidence of the other medical practitioners who are of the opinion that the plaintiff has a present capacity for suitable employment.
56 I have little hesitation in accepting the plaintiff’s evidence in whole. There are doubtless aspects of the evidence which point to the plaintiff having a better capacity to function with his right shoulder, but that is a common enough experience in these applications. In the plaintiff’s case, as in so many, the forthrightness and truthfulness of the plaintiff’s evidence figures very prominently in determining the issues which are raised against him. Additionally, the account given by the plaintiff of the injury, his treatment and where he has ended up is consistent with a body of persuasive medical evidence which has fortified me in concluding that I can confidently accept his evidence and that body of medical evidence.
57 Therefore, I am satisfied that the pain and suffering consequences and loss of earning capacity consequences are “serious” when compared with like impairments.
Conclusion
58 For the reasons set out above, I grant the plaintiff leave to bring a proceeding at common law for both pain and suffering and loss of earning capacity.
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