Barac v Elster Metering
[2011] VCC 1416
•18 November 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
No. 2010-01372
| NICOLA BARAC | Plaintiff |
| v | |
| ELSTER METERING PTY LTD | Defendant |
| JUDGE: | HER HONOUR JUDGE JENKINS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 & 14 November 2011 |
| DATE OF JUDGMENT: | 18 November 2011 |
| CASE MAY BE CITED AS: | Barac v Elster Metering |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1416 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION Application for leave pursuant to s. 134AB Accident Compensation Act 1985 Paragraph (a) of serious injury definition; Injured right shoulder; Pain and suffering consequences only; Applicant now 69 y.o. not working; Other medical conditions; Consistent medical opinion; poor English; Assessment of consequences; Leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hore-Lacy with | Maurice Blackburn |
| Mr G. Wicks | ||
| For the Defendants | Mr S. Smith | Lander & Rogers |
TABLE OF CONTENTS
Nature of Application ..........................................................................................................2
The Plaintiff’s Evidence ......................................................................................................3
Background ......................................................................................................................3
Workplace Accident..........................................................................................................4
Initial Investigations Diagnosis & Treatment.....................................................................4
Return to Work .................................................................................................................5
Continuing Symptoms and Surgery..................................................................................5
Radiological investigations ................................................................................................8
Video Surveillance...............................................................................................................9
The Medical Evidence .......................................................................................................10
Treating Doctors.............................................................................................................10
Medico-Legal Experts.....................................................................................................12
Relevant Statutory Provisions and Case Law.................................................................15
Consequences ...............................................................................................................17
Analysis of the Evidence and Findings ...........................................................................17
Extent of Current Activities and Extraneous Medical Conditions ....................................19
Extent of Current Consequences ...................................................................................20
Orders.................................................................................................................................22
HER HONOUR:
Nature of Application
1 This is an application for leave to bring a proceeding for the recovery of damages pursuant to section 134AB of the Accident Compensation Act 1985 (“the Act”) made by Application pursuant to section 134AB(4) on 31 March 2010 by the Plaintiff, in respect of an injury suffered by him in the course of his employment with the Defendant on 1 March 2006. On that date, whilst working as an equipment assembler, the Plaintiff suffered an injury to his right shoulder following a fall.
2 The Plaintiff seeks a declaration that he suffered a serious injury as defined within section 134AB(37) under paragraph (a), by reason of a:
a) Full thickness tear of the subscapularis tendon of the right shoulder;
b) Capulitis of the right shoulder;
c) Dysfunction of the right rotator cuff musculature; and/or d) Sub-acromial bursitis with impingement..
3 Leave is sought in relation to damages for pain and suffering only.
4 In the course of the application, the Plaintiff gave oral evidence and was cross-examined. Otherwise the parties rely upon material tendered by them which included two affidavits sworn by the Plaintiff,[1] a number of medical reports which were tendered by both parties; clinical notes of Dr Scarlett tendered by the Plaintiff; and a surveillance video tendered by the Defendant.
[1] Affidavits sworn 29 November 2009; and 31 October 2011
5 The Defendant concedes that the Plaintiff suffered a compensable injury during the course of his employment on 1 March 2006. However it disputes the seriousness of the consequences of the Plaintiff’s claimed injury. In particular the Defendant contends that the Plaintiff's prior back injury had already caused significant pain and restrictions and impairment of lifestyle such that any additional consequences referable to the shoulder injury were minimal.
The Plaintiff’s Evidence
Background
6 The Plaintiff was born in Serbia on 7 November 1942 which makes him now 69 years old and 63 years old at the time of his injury. He is married with three adult daughters. He is right handed. He came to Australia in 1972 aged 29 years.
7 He attended school in Serbia until aged 14 and then worked on his father’s farm until he came to Australia. Three weeks after arriving in Australia he started work on the cushion line at the Ford Motor Company factory where he worked for about three years. He then worked as a process worker in different factories: First in a wool factory for about six months, then in an aluminium factory for about two and a half years, followed by about three years in a can manufacturing factory.
8 In about 1980 he was involved in a domestic accident in which he suffered serious burns to about 75% of his body. He was off work for a long time to recover from this. His next employment was with the Defendant which commenced in 1989.
9 The Defendant manufactures water meters and gauges. For several years he worked as a machine operator. He then worked as a cleaner until about 2001 when the business shifted to a new factory. At that time he moved back to production and began working as a “lead sealer” which involved drilling and attaching lids to the meters. He coped well with this work.
10 The Plaintiff was cross-examined extensively on the nature of his work subsequent to hurting his back on 4 August 2005 while lifting a 20kgm box.
11 He agreed that Dr Marcus, who had been treating him for his back injury, issued monthly Certificates of Capacity[2] restricting work to no repetitive bending, twisting or heavy lifting for the period September 2005 to April 2009. However, the Plaintiff’s first affidavit refers to performing normal duties prior to injuring his shoulder. Although the Plaintiff appeared to struggle with the questions and give inconsistent answers, I am satisfied following re- examination as to the following:
[2] DCB 54 & 56
a)
the Plaintiff was assigned different duties following his back injury which would accommodate the restrictions prescribed in the medical certificates and which the Plaintiff then understood to be his “normal duties”;
b)
the Plaintiff’s explanation for not referring to the consequences of his back injury, in terms of the medical certificates, was that he understood he only had to refer to his shoulder injury; and
c)
subsequent to his back injury and prior to his shoulder injury he coped with full-time employment, within the restrictions prescribed by his medical certificates.
Workplace Accident
12 On or about 1 March 2006 he suffered injury to his right shoulder at work when he tripped over a bag of towels that had been left lying in the way on the floor. He fell onto his right hand side on the concrete floor and experienced immediate pain in his right shoulder. He reported the injury to his supervisor and continued at work that day in pain.
Initial Investigations Diagnosis & Treatment
13 The next day the pain was so bad that he was unable to move his right arm. He went to his workplace but could not work. He was driven in a company car to Dr Justin Scarlett, who was the preferred doctor of his employer. He arranged for an X-Ray, which he had that day and an Ultrasound which he had on 8 March 2006. He was told that he had a tear in a tendon. Dr Scarlett ordered physiotherapy which he underwent three times a week. He was put off work but his problems persisted.
14 He was referred to Mr Miron Goldwasser whom he saw for the first of three consultations on 22 March 2006. Mr Goldwasser told him that surgery might be indicated but that he was not inclined to recommend it in his case because of his age and because he was a diabetic. He said that Mr Goldwasser told him that diabetes was associated with a higher than normal risk of post operative frozen shoulder. Mr Goldwasser injected cortisone into his shoulder on two occasions. This helped the pain a little.
Return to Work
15 After about three months he returned to work on modified duties working four hours a day, five days a week. He increased his daily hours to five but continued on modified duties, which consisted of light cleaning one day a week. The remainder of his time was assembling meters or inserting numbers on metres. He remained on modified duties until he stopped work altogether in December 2008 aged 66 years. Under cross examination he agreed that he stopped work after suffering a stroke.
16 While working he continued to have an aching right shoulder which was always worse at the end of the working day. After stopping work it continued to trouble him on a daily basis.
Continuing Symptoms and Surgery
17 He has difficulties with activities of daily living and personal hygiene such as showering, doing his hair, shaving and dressing etc. Household tasks such as vacuuming or raking are difficult to do and always result in pain. Under cross examination the Plaintiff said that his wife would perform domestic duties such as vacuuming.
18 At work some work mates accused him of being a “liar and faker”. This upset and humiliated him. However, this was dealt with promptly by management and did not cause him to suffer long term mood disturbance. However, he was upset because of his shoulder. He could not sleep well because of the pain in his shoulder and he was always tired and felt that his moods had lowered. He did not have any treatment for this. Under cross examination he agreed to the effect that his sleep disturbance following his back injury in 2005 was much the same as it was following his shoulder injury.
19 Currently he continues to suffer constant pain in his shoulder which varies with activity and weather. Attempts to engage in light activities such as mowing the lawn causes considerable pain. The pain continues to interfere with his sleep. Under re-examination he said that the shoulder pain is worse than the back pain and causes him more sleep disturbance. He takes Panadeine Forte at night to help him sleep. He is restricted in the use of his right dominant hand. He has had to learn to use his left hand for some activities such as shaving. His capacity to perform domestic work and maintenance is very limited. There is a significant risk of not being able to perform overhead tasks without causing a danger. He tries to use his left hand and arm as much as possible.
20 He has not seen Dr Scarlett since about August 2009. Dr Scarlett told him there is nothing he could do for him. He goes to see him when he needs a new prescription for tablets. Similarly, he has not seen Mr Goldwasser in some time as he too said there was nothing he could do for him.
21 In May 2009 he took an overseas trip. Before that he was having physiotherapy three times a week. When he returned from the overseas trip he had heart problems and had to have a pacemaker inserted. He has not had physiotherapy since.
22 Since swearing his first affidavit in November 2009 the Plaintiff believes that the condition of his shoulder in general has worsened. He has virtually constant pain and discomfort in his right shoulder. He has occasional brief periods when he is relatively pain free, but that is only when he is at rest. The pain often travels up to his neck and down his right arm. At night time when his shoulder is hurting he also has numbness and pins and needles in his right hand. When the pain is severe, say twice a week he takes Panadeine Forte to deal with it.
23 The pain is worsened by most activities. In particular any repetitive action with his right arm results in increased pain, as does any attempt to raise his arm above shoulder height. Because of the pain he cannot lie on his right side. Often his sleep is disturbed by pain. If he rolls onto his right side he is woken by increased pain.
24 His life continues to be affected by his shoulder injury. He is limited in the things that he is able to do but he tries to keep as active as he can. He continues to have difficulty with basic things such as shaving or dressing himself. His wife does most of the household chores, as well as the majority of the gardening, shopping and driving. He helps with some mowing but he suffers painful consequences even after a short period of this work.
25 In the past he enjoyed going fishing or attending the Serbian Club. Fishing is difficult as casting a rod or carrying gear is painful. The enjoyment has gone from that and he rarely goes fishing now compared to about monthly before his injury. He has less interest in the Club now. He believes in general that he has lost interest in things. Under cross examination he agreed that fishing was the only hobby he enjoyed prior to his shoulder injury and that his back injury had already impaired his ability to cast a fishing line or stand for prolonged periods. Since his shoulder injury he went fishing twice but no more. He is unable to drive long distances and he cannot cast the fishing line. It was also painful to hold the fishing rod in his right hand. He has also developed pain in his left shoulder although he could not remember when this commenced.
26 Before his injury he planned to continue working for as long as he could. He enjoyed his work and the social contact. He had previously had health issues including the burn injuries, back problems and a stroke. Despite these he had been able to continue to work in normal duties until the injury to his shoulder. After that his life changed. The fact that his life is so different gets him down from time to time. He thinks that is why he has lost interest in so many things.
27 Since 2009 he has attended his local family doctors at the Roxburgh Park Clinic. He will see different doctors there. He goes there once a month for a check up and prescriptions. He has not seen Mr. Goldwasser again because he said there was nothing he could do for him short of an operation on his shoulder which posed risk of worsening the condition. He stopped physiotherapy in 2009 and has not recommenced it since.
28 Under cross examination he agreed that his back problem is at much the same level as it was prior to his shoulder injury and that he took Panadeine Forte and Panadol both before and after the shoulder injury.
29 He agreed that he has undertaken the following overseas trips with his wife since his shoulder injury:
a) In 2009 he visited his family in Serbia from 19 May to 27 August; b) in 2010 he visited his family in Serbia from 18 May to 8 August; and c) in 2011 he visited Bali for two weeks in August.
Radiological investigations
30 An ultrasound of the right shoulder performed on 8 March 2006 was reported as follows:
Biceps tendon is intact but there is thickening of the biceps tendon along the proximal biceps tendon. This indicates underlying synovitis. Subscapularis tendon is absent due to complete rupture. Supraspinatus and supraspinatus tendons are intact. The sub acromial bursa is thickened, indicating underlying bursitis. There is limited shoulder abduction, possibly due to underlying bursitis.[3]
[3] PCB 34
31 Mr Dooley noted that an ultrasound in November 2006 reported a tear of the sub scapularis tendon without any evidence of sub acromial bursitis.[4]
[4] DCB 45
Video Surveillance
32 Covert video surveillance of the Plaintiff was played to the court which depicted the Plaintiff engaged in certain activities in his garden on 3 and 7 December 2010. In particular, the Plaintiff admitted that in the video he is shown to open the lids of two wheelie bins with his right hand; pull a wheelie bin with his right hand around the side of the house [which he said in evidence was empty]; use a hose in his right hand; fold the hose using both hands; kneel on the ground apparently pulling weeds with his right hand; and opening the letter box with his right hand.
33 The Defendant admitted that surveillance was conducted on 31 March 2007; 1 April 2007; 19 & 22 June 2007; 25 July 2007; 3 December 2010 and 7 December 2010 for an aggregate period of 37.75 hours from which video was taken for a total of 12.57 minutes of which 8.27 minutes [taken in December 2010] was shown to the Court.
34 In my view there is nothing in the video surveillance which is inconsistent with the evidence given by the Plaintiff. None of the activities performed with his right hand required any particular force or strength on his part and none involved any vibration, twisting or rotation of the upper body. I infer that the remainder of the video surveillance admitted is similarly not inconsistent with the Plaintiff’s evidence.
The Medical Evidence
Treating Doctors
35 Dr Basman Marcus General Practitioner commenced treating the Plaintiff in August 2005 when he was sent by his employer after injuring his back at work. The Plaintiff was treated with rest, physiotherapy and analgesia. He was treated by a Dr Scarlett, a general practitioner to whom the Defendant had sent him, for his shoulder injury.
36 Dr Marcus was told by the Plaintiff that his work hours were reduced to 5 hours a day in June 2007 owing to his shoulder injury. The Plaintiff also suffered a stroke in November 2007 for which he was admitted to the Northern Hospital. I note that the report of Mandie Murden Occupational Therapist notes that the Plaintiff was admitted to the Northern Hospital on 21 October 2007 following the onset of symptoms of ischaemic right-sided CVA.[5]
[5] DCB 25
37 In his report dated 9 April 2008 Dr Marcus diagnosed chronic mid and lower back pain due to degenerative disease of the spine and facet joints strain. He was fit to perform light duties with job modifications and restrictions but was not fit for pre [back] injury duties that involved weightlifting, repetitive back bending or prolonged standing. His back pain had stabilised with fluctuating pain. The Plaintiff continued to be treated by his regular general practitioner in Roxburgh Park for his pre-existing medical conditions such as diabetes, hypertension and coronary heart disease; and by the general practitioner in Fawkner chosen by his employer for his right shoulder injury.[6]
[6] DCB 22-23
38 Dr Justin Scarlett General Practitioner initially treated the Plaintiff following his workplace injury. He diagnosed a full thickness tear of his right shoulder subscapularis tendon, which diagnosis was confirmed by Mr Miron Goldwasser Orthopaedic Surgeon, who also administered sub acromial injections of corticosteroids. The Plaintiff was also treated with physiotherapy.
39 Upon his return to work the Plaintiff worked 4 hours per day with a weight lifting restriction of no more than 2.5 kgms. While he coped, Dr Scarlett noted that he made little progress and remained stuck at this level for some time.
40 By August 2007 the Plaintiff was working 5 hours per day on modified duties, which appeared to be his limit. He continued to experience chronic pain and disability of his right shoulder.
41 By May 2008 Dr Scarlett noted that the Plaintiff had received various cortisone and local anaesthetic injections in the right shoulder by Mr Goldwasser with only minimal improvement. Otherwise he continued with physiotherapy three times per week, home exercises and analgesics such as Panadeine Forte. His work limit remained at 5 hours per day. There had been no improvement for over one year and Dr Scarlett believed that he would suffer from permanent pain and disability from his right shoulder.[7]
[7] PCB 44
42 Mr Miron Goldwasser Orthopaedic Surgeon treated the Plaintiff upon referral by his general practitioner Dr Scarlett from 22 March 2006. Upon examination Mr Goldwasser noted that it was painful for the Plaintiff to move his shoulder, he had a positive impingement sign with tenderness present and weakness of the rotator cuff, particularly the sub scapulariris. These symptoms were consistent with the ultrasound report of a sub scapularis tendon tear.[8]
[8] DCB 47
43 Mr Goldwasser administered a sub acromial injection of local anaesthetic and steroid [in March and September 2006] which improved the Plaintiff's range of motion and made his shoulder much more comfortable.
44 When reviewed again in November 2006 his improvement from the previous injection had been maintained. At that stage Mr Goldwasser expected that there would be fluctuation in symptoms and possibly some increase in symptoms in the shoulder particularly if it were involved in vigorous extensive and repetitive use. Mr Goldwasser recommended continued conservative treatment, with modification of work duties and avoiding using his shoulder too much.[9]
[9] PCB 36-37 of the
Medico-Legal Experts
45 Dr Mary Wyatt Occupational Physician examined the Plaintiff at the request of the Defendant in November 2006, and June 2008 together with a work site assessment in April 2007. In her final report Dr Wyatt notes that the Plaintiff continued to complain of persisting back and right shoulder problems. Clinical examination was consistent with an ongoing right shoulder problem. At that stage he remained unfit for duties that required significant out reaching, work above shoulder height with the right arm and significant manual handling.[10]
[10] DCB 40
46 Mr Russell Miller Orthopaedic Surgeon examined the Plaintiff at the request of his solicitors on two occasions in December 2010 and November 2011.[11] In his most recent report Mr Miller noted that the Plaintiff continued to have problems with right shoulder with pain and discomfort, worse with repetitive activities and overhead activities. The Plaintiff also reported significant sleep disturbance. His condition had not improved since he was last seen and he continued to have difficulties with activities of daily living. The Plaintiff believed that he had largely recovered from his stroke, of which he had previously told Mr Miller had occurred in 2007 or 2008.
[11] I note that Mr Miller had the assistance of a professional interpreter
47 In relation to medication and treatment, the Plaintiff continues to take a range of medications including Panadeine Forte. He takes medications for his diabetes and hypertension. He is not having physiotherapy and hydrotherapy and there are no current plans for surgery.
48 On examination of the right shoulder Mr Miller noted that there was minor deltoid muscle wasting and tenderness in the region of the acromio clavicular joint. There was also mild weakness around the shoulder.
49 Under diagnosis and prognosis Mr Miller reported:
This man has suffered a significant injury to the right shoulder with a full thickness rotator cuff tear. He has significant ongoing symptoms. He has had a poor response to conservative measures and he is reluctant to consider surgical intervention and this is a reasonable position to take and this is a matter between him and his treating surgeon. Untreated I believe the prognosis for this shoulder is fair/poor. [12]
His condition has substantially stabilised and has been since approximately March 2010 and there has been no improvement since he was last reviewed by me. Further improvement is not anticipated. There is a moderate risk of late long term deterioration. He is however at only moderate risk of developing arthritic disease in the gleno-humeral joint and on the balance of probabilities he is unlikely to do so.[13]
[12] PCB 56
[13] PCB 57
50 Dr Jeanne McGivern Surgeon examined the Plaintiff at the request of the Defendant in August 2007. At this stage the Plaintiff was still working five hours per day but at the end of the day his shoulder becomes increasingly painful and he can no longer cope with staying at work.
51 Dr McGivern noted:
Mr Barac has a number of other medical problems unrelated to work. Even his foot ulceration, which could be reasonably expected to deter some people from continuing to work, has not stopped him from returning to the workplace…
Mr Barac was a pleasant man who told his story in genuine sounding manner and without embellishment. I felt I could generally rely on the information he gave me.[14]
[14] PCB 62
52 In conclusion Dr McGivern gave the following opinion:
Mr Barac has a number of active medical complaints. However it is my understanding that many or most of these were present prior to any injury to his right shoulder in March 2006. Mr Barac sustained a full thickness tear of the subscapularis tendon in his right shoulder as a result of the fall. This will not heal spontaneously. This has possibly been complicated by the development of mild capsulitis. Without surgery I doubt that this man will regain function he had in his right shoulder prior to his fall…
With regard to both shoulder and back injury this man is open to the idea of increasing his hours but is genuinely incapable of doing so because of symptom exacerbation[15]
This man has made every attempt to return to work to the best of his ability. I agree with his doctor's assessment of his current work capacity.[16]
[15] PCB 63
[16] PCB 64
53 Dr McGivern further noted that the Plaintiff was highly unlikely to be fit enough to return to his Pre-injury duties and unlikely to be able to increase his working hours. While there were other medical reasons which might make it impossible for the Plaintiff to do his current duties full-time, Dr McGivern considered that the overriding reason appeared to be the injury to his right shoulder.
54 Mr Paul Kierce Orthopaedic Surgeon examined the Plaintiff at the request of the Defendant in August 2008[17] for the purpose of performing an impairment assessment.
[17] I note that Mr Kierce had the assistance of a professional interpreter
55 In relation to his right shoulder, examination revealed some wasting of the right supra scapular region; tenderness over the right acromioclavicular joint; definite crepitus on the right shoulder movements; and a positive impingement sign. Mr Kierce noted that the Plaintiff suffers from constant shoulder pain which was worse at night and prevented him from sleeping.
56 Mr Kierce concluded that the Plaintiff was suffering from injury to his right rotator cuff in particular with rupturing of the right subscapularis tendon.
57 Mr Michael Dooley Orthopaedic Surgeon examined the Plaintiff at the request of the defendant's solicitors on 29 April 2011.[18]
[18] I note that Mr Dooley had the assistance of a professional interpreter.
58 Mr Dooley noted that in addition to the stroke in 2007 the Plaintiff suffered an acute myocardial infarct in 2008. Upon examination the Plaintiff complained of ongoing right shoulder girdle pain with some restriction of shoulder motion. The Plaintiff said he was unable to carry out heavy physical activities. He is not currently having any treatment for his shoulder and takes Panadol for pain. The Plaintiff said that he would wake three times during the night because of shoulder pain.
59 Mr Dooley concluded as follows:
Mr Barac has age related naturally occurring degenerative rotator cuff disease of the shoulders. He describes a fall at work on his right shoulder in March 2006. I believe that in this fall he aggravated the underlying degenerative rotator cuff disease. On balance it is most likely that the tear of the sub scapularis tendon was present as part of the degenerative process but it is possible that the tear was sustained in relation to the trauma of the fall. He noted persisting pain…
Current clinical examination reveals a moderate restriction of shoulder
motion on both sides..
As a consequence of his injury he does note ongoing intermittent shoulder girdle pain including nocturnal pain. These are typical symptoms for the injuries sustained. He will have difficulty with any heavy lifting and he will note difficulty with activity at and above shoulder level. I do not believe that surgical intervention would alter his condition to any lasting degree. Also clinical experience tells us that in patients who are diabetic and who have significant cardiovascular disease, that there physiological age is often greater than their chronological age and that their soft tissues are not always easily repairable…
Overall I do not believe that any specific treatment is required. It is
reasonable for him to take Panadol for his pain.[19]
[19] DCB 45-46
60 Mr Dooley noted that sub acromial cortisone injections provided some improvement in the Plaintiff’s pain and the option of surgery was considered. Mr Dooley thought that the Plaintiff probably suffered Dupuytren disease which may explain why he has moderate restriction of both shoulders.
Relevant Statutory Provisions and Case Law
61 This application falls to be determined in accordance with Section 134AB of the Act. Sub-section 134AB(2) prescribes the conditions which must be satisfied before a compensable injury may give rise to an entitlement to recover damages:
(2) A worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of, employment if the injury is
a serious injury and arose on or after 20 October 1999.”[20][20] By Act No. 95/2003 s.3(8) the words “employment of that nature was a significant contributing factor, and” were omitted from sub-section 134AB(2) as from 3 December 2003, which was before the injury relied upon by the Plaintiff in this case.
62 For the purpose of the current application “serious injury” means:
[21] Section 134AB (37)
(a) permanent serious impairment or loss of a body function[21]
63 Section 134AB (38)(b), so far as it is relevant to the present case, sets out what must be shown in order to establish that impairment or loss of a body function [under paragraph (a) of the definition] is “serious”. It does this by reference only to the consequences to a worker.
(38) For the purposes of the assessment of “serious injury” in
accordance with the sub-sections (16) and (19)-
(b) the terms ‘serious’ and ‘severe’ are to be satisfied by reference to the consequences to the worker of any… impairment or loss of a body function… with respect to- (i) pain and suffering; …
when judged by comparison with other cases in the range of
possible… … impairments or losses of a body function ….
64 Section 134AB (38)(c) provides, so far as it is relevant to this case, as follows:
(c) an impairment or loss of a body function … shall not be held to be serious for the purposes of sub-section (16) unless the pain and suffering consequence … is, when judged by comparison with other cases in the range of possible impairments or losses of a body function,… fairly described as being more than significant or marked, and as being at least very considerable;
65 The physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury.[22]
[22] section 134AB(38)(h)
66 I must determine whether the restrictions and limitations with respect to pain and suffering to which the Plaintiff is now and will remain subject, constitute a consequence which can be fairly described as being more than significant or marked, and as being at least very considerable when judged by comparison with other cases in the range of possible impairments.
Consequences
67 I must assess the consequences in terms of pain and suffering which the Plaintiff’s injury has occasioned to him, and determine where the facts of this case sit in the broad spectrum of cases. This task involves “a value judgment in which matters of fact and degree, and of impression, are operative”.[23] I must also take into account:
“… not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of the consequences, may be informed, to some extent, by what is retained.”[24]
[23] Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
[24] Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260
68 A court must also be careful not to inadvertently disadvantage the stoic worker whose pain and suffering may appear to be minimised by an attitude of perseverance and strength of character.[25] On the basis of the medical reports I acknowledge that the Plaintiff appears to have persevered in his employment following the shoulder injury, notwithstanding a number of physical difficulties, including foot ulceration.
[25] For instance refer to comments of Nettle JA in Dwyer v Calco Timbers (2008) VSCA 260; and Maxwell P in Haden Engineering v. McKinnon @ para 13
69 In Haden Engineering Pty Ltd v McKinnon[26] Maxwell P. undertook a useful analysis of the kinds of considerations to which judges have routinely had regard when considering pain and suffering consequences.
[26] [2010] VSCA 69 @ paras 9-17; cf comments of Buchanan & Nettle JJA; However, cited with approval in Sutton v Laminex Group Pty Limited [2011] VSCA 52 per Justice Tate @ paras 46-50
70 I will be guided by these cases.
Analysis of the Evidence and Findings
71 I have set out above a brief synopsis of evidence. However, my findings and reasons for judgement have only been determined after careful re-reading of the whole transcript of evidence and tendered documents.
72 I am satisfied that the medical reports are essentially consistent in terms of the history taken; results of medical examinations; description of the injury; and prognosis for the future.
73 I am satisfied from all medical reports and confirmed by the oral evidence of the Plaintiff that he has been a co-operative and responsive patient who endeavoured to return to work as soon as practicable and continued to work to his maximum capacity until he could no longer continue because of his stroke.
74 I am further satisfied that the medical opinions have not questioned or in any way doubted the accounts given by the Plaintiff as to his current limitations and circumstances which precipitate his experience of pain. The Plaintiff appears to have been accepted as a reliable historian and genuine in his complaints. He was also accepted as a worker who genuinely attempted to remain at work and increase his work hours.
75 As indicated during the course of the hearing, the consistency of the medical opinions in the manner described above has been a significant factor in my assessment of the Plaintiff generally. He was often not a good witness for his own sake and frequently appeared not to comprehend questions or give inconsistent answers. Nevertheless I am satisfied that he did not give evidence contrary to histories given to reporting doctors and gave an explanation for certain omissions in his affidavits, relating to his earlier back injury.
76 I note that the Defendant conceded that the medical opinions described the Plaintiff's injury in consistent terms and that he suffered consequent pain and restrictions.
77 I turn now to consider the questions as formulated by the Court of Appeal in the Barwon Spinners & Other Cases, noting that the first and second questions were essentially not in dispute in this case:
78 First, what is the injury and what is the impairment said to be produced in consequence?
79 The Plaintiff suffered a full thickness tear of his right shoulder, subscapularis tendon.
80 The consequent impairment and loss of function to the right shoulder has been consistently described as producing chronic pain and disability in the right shoulder occasioning restricted movement.
81 Secondly, is the impairment permanent, i.e., likely to last for the foreseeable future?
82 In his view the evidence readily supports a conclusion that the impairment suffered by the Plaintiff is permanent for the purposes of the Act.
83 Thirdly, are the consequences for the Plaintiff fairly described as being more than significant or marked, and as being at least very considerable when judged by comparison with other cases in the range of possible impairments. In my view, for the reasons given below, I am satisfied that the Plaintiff satisfies the threshold test.
Extent of Current Activities and Extraneous Medical Conditions
84 The Plaintiff agreed that:
a) He still drives a car, but only for short distances;
b) He has a number of other serious medical conditions, for which he also takes medication; c) His only hobby prior to his shoulder injury was fishing, which was already impaired by his back injury; d) He has undertaken three overseas trips since retiring; and
e) He eventually ceased work for reasons other than his shoulder injury.
85 Furthermore, objectively the Plaintiff is now 69 years old and therefore at an age when his physical activities can be expected to be more limited, particularly in the context of other serious medical conditions.
86 I note that the Plaintiff was cross examined extensively about why he did not return to Mr Goldwasser if his shoulder condition had indeed worsened. I am satisfied from his evidence and the medical reports that he understood that surgery was not a viable option in his circumstances and there was nothing further available to him other than to continue his conservative treatment.
Extent of Current Consequences
87 The particular activities in which the Plaintiff said he had difficulty or was unable to perform were the following:
a)
His major consequences follow from the fact that he is right hand dominant. Accordingly, he is now unable to perform many tasks which he would have normally performed with his right hand, including hand and arm movements above shoulder height;
b)
He is unable to use a lawn mower or engage in other activities which require force or strength in using his right hand or arm;
c) He suffers sleep disturbance, principally because of his shoulder pain; d)
He has effectively ceased fishing, which he could still engage in monthly prior to his shoulder injury;
e)
Although he conceded that his wife performs domestic duties, he would be unable to assist in chores such as vacuuming;
f)
Prior to ceasing work he was unable to work for longer than 5 hours per day by which time his shoulder became too painful to continue; and
g)
He suffers some constant pain and restricted movement in his shoulder which is mostly treated with Panadol and every 2 to 3 days requires Panadeine Forte.
91 88 It is appropriate at this point to recall the qualification to serious injury which was made in Humphries v Poljak. To be “serious” the consequences of the injury must be serious to the particular applicant.[27] Accordingly, the same consequences can assume a markedly different significance from one applicant to another depending upon such factors as age, prior state of health and level of activities. In this case, the Plaintiff is already beyond the usual retirement age. Accordingly, his circumstances stand in marked contrast to a young worker, as implicitly acknowledged in Stijepic v One Force Group Aust Pty Ltd & Anor in which the Court made the following distinction:
The circumstances of this case, in our opinion, put it on the borderline. The appellant is a young man with low back pathology which has been at least aggravated by the compensable injury. He faces in the foreseeable future a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life. When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man or a woman will have to put up with for 40 years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time. [28]
[27] Crockett and Southwell JJ @ 140
[28] Stijepic 2009 V.S.C.A 181 @ para 43
89 In the Plaintiff’s case, perhaps by reason of a number of pre existing unrelated medical conditions, the shoulder injury weighs more heavily upon the Plaintiff and appears to have changed his lifestyle from one which was difficult but manageable to one which is largely miserable for him.
90 I am satisfied that the medical opinion has consistently described the Plaintiff’s injury as significant and likely to be productive of a constant level of pain and restricted motion which is exacerbated by any activity involving the right arm.
Accordingly, having regard to the particular circumstances of the Plaintiff a) he struggled to maintain employment, since his shoulder injury;
b) he has predominately been a manual worker;
c) he has had to cease the only recreational hobby in which he previously engaged; d) he suffers a constant level of pain which requires regular although not constant pain relief; and e) he is now significantly restricted in the use of his dominant right limb;
I am satisfied on the balance of probabilities that the consequences of the impairment to the right shoulder can be fairly described as being more than significant or marked, and as being at the very least very considerable.. Accordingly, I am satisfied that the injury suffered is a “serious injury” within the meaning of the Act.
Orders 92 The Plaintiff is granted leave pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985, to commence common law proceedings for the recovery of damages for pain and suffering only in respect of injury to his right shoulder, arising out of, or in the course of, or due to the nature of, employment with the Defendant on 1 March 2006, relying upon paragraph (a) of the definition of serious injury. 93 After allowing the parties the opportunity to make submissions on the question of costs the following orders were made: 94 Defendant to pay the Plaintiff’s costs, including reserve costs on Scale D of the County Court Scale of Costs up to 1 September 2011 and thereafter be assessed by the Costs Court in default of agreement; 95 Certify for the filing, preparation and service of the Court Books relied on by the Plaintiff to be assessed by the Costs Court.
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