Bastian v Southern Cross Care (Vic) Pty Ltd
[2018] VCC 393
•5 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-14-06483
| BRENDA MARY-ANNE BASTIAN | Plaintiff |
| v | |
| SOUTHERN CROSS CARE (VIC) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2018 | |
DATE OF JUDGMENT: | 5 April 2018 | |
CASE MAY BE CITED AS: | Bastian v Southern Cross Care (Vic) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 393 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to right shoulder – development of Chronic Pain Syndrome – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB; Workplace Injury Rehabilitation and Compensation Act 2013
Judgment:Leave granted in respect to pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D J N Purcell SC with Ms K M Manning | Maurice Blackburn |
| For the Defendant | Mr B R McKenzie | IDP Lawyers |
HIS HONOUR:
Preliminary
1 The plaintiff, Mrs Brenda Bastian, suffered an injury to her right shoulder in the course of her employment as a food services assistant with Southern Cross Care (Vic) Pty Ltd (“Southern Cross”). In June 2009, she noticed pain in her right arm while operating an industrial dishwasher which she was required to repetitively pull open and close. While unloading the dishwasher in December 2009, she suffered a severe increase in pain in her shoulder and right arm.
2 Mrs Bastian returned to work the following day using different equipment in a different area. She was unable to cope with the pain and took leave to seek medical treatment. She returned to work again, initially on light duties, and gradually returned to working back in the kitchen with the aid of a staff member. Her condition deteriorated and, with the lack of duties suitable, her employment was terminated in August 2012. She has not worked since.
3 Mrs Bastian has required a significant range of medical treatment including arthroscopic surgery to effect a labral repair, injections into the shoulder area, a pain management program at the Brunswick Private Hospital and involving a ketamine infusion, a hydrodilatation of the shoulder, and finally, a subacromial decompression. She claims a range of social, domestic and recreational activities have been lost or curtailed. She claims she has little, if any, work capacity. She is right-hand dominant.
4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of Mrs Bastian’s employment with Southern Cross, in particular on 2 December 2009.
5 The body function said to be lost or impaired is the right shoulder.
6 Mr McKenzie, for the defendant, while not conceding the pain and suffering consequences of injury met the statutory test, did not make any submissions in that regard and I am satisfied, given the nature and extent of injury, treatment and particularly the consequences of the injury, meet the “very considerable” test as the Act requires. The real issue, then, is the nature and extent of Mrs Bastian’s capacity for employment, and whether, as a result of injury to her right shoulder, she has suffered a 40 per cent loss of earning capacity.
7 The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.
8 Mrs Bastian was the only witness called to give evidence and be cross-examined. In addition, affidavits of Mrs Bastian, medical, radiological and vocational reports and other material were tendered in evidence. I shall not refer to all of that material in the course of this Judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this Judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me revisit the various relevant sections and those authorities.
Relevant background
9 Mrs Bastian is now forty-nine years of age. She was born in India and migrated to Australia in 2003. At school she finished Year 10 and worked in India as a kindergarten teacher, although had no formal qualifications. She is married with two adult sons who reside in the family home.
10 In June 2004, Mrs Bastian commenced her first position in Australia working as a laundry assistant for Southern Cross. Her duties involved picking up bags of personal clothing from residents’ rooms, taking the laundry bags to the laundry, sorting clothes, loading clothes into an industrial washing machine, folding clothes, ironing clothes and putting away clean clothes in the residents’ rooms.
11 After working for three years as a laundry assistant, Mrs Bastian changed positions and commenced working as a food services assistant. Her duties involved setting up the dining room tables, preparing food, preparing beverages, clearing and cleaning dishes, and loading and unloading an industrial dishwasher. Many of the tasks undertaken by Mrs Bastian were heavy in nature and involved repetitive work. While working for Southern Cross, she obtained a certificate in food handling and later, completed Certificate I in Customer Service.
12 Prior to the injury, Mrs Bastian was in good health. She had the odd ache and pain associated with the manual nature of her work. Cooking was her favorite hobby and this ultimately led her to work as a food services assistant. She was house proud and would perform all housework and domestic tasks including cleaning, washing, shopping and cooking for her family.
The injury and its consequences
13 In June 2009, Mrs Bastian developed pain in her right shoulder which she particularly attributed to opening and closing the dishwasher. She attended First Health Medical Centre to see a general practitioner, Dr Alan Lim, and subsequently had an ultrasound in August 2009. Dr Lim said her ultrasound read as “normal”.[1]
[1]Plaintiff’s Court Book (“PCB”) 17
14 The pain in her shoulder increased over time. On or about 2 December 2009, she suffered particular pain while pulling on the handle of an awkwardly positioned industrial dishwasher. The pain was so severe she felt dizzy, nauseous, and it caused her to drop some bowls she was holding.[2]
[2]PCB 9
15 She returned the following day, working in a different area and using a different dishwasher. She was unable to continue and took time off, followed by sick leave. During this period, she treated the pain with analgesics and rest. Dr Lim referred her for physiotherapy and provided a cortisone injection. Her condition failed to improve.[3] Dr Lim arranged a referral to a neurologist for pain management and for an MRI scan.
[3]PCB 17
16 She was referred by another general practitioner, Dr Mendis (who has continued to treat her to the present time), to a surgeon, Mr Edan Raleigh, in July 2010. He arranged an MRI scan which showed “tendonitis of the rotator cuff, a bit of bursitis, a large labral tear with bucket handle into the joint”.[4] He performed a shoulder arthroscopy on 3 August 2010. The labral tear was resected. He reviewed Mrs Bastian in June 2014 and noted hypersensitivity over the area. He said he believed that she had developed a Pain Syndrome, and referred her to a pain management specialist.
[4]PCB 55
17 Mrs Bastian returned to work on light duties from September 2010, after the surgery, until July 2012, and gradually increased her working capacity. She was almost working on normal duties for four hours a day until she began experiencing severe pain in June 2011.
18 Mrs Bastian continued to see Dr Mendis. He arranged a number of cortisone injections and said that an ultrasound of July 2011 showed swelling in the biceps sheath
19 In August 2012, Mrs Bastian received a letter stating that her employment was terminated as her condition was deteriorating and there were no suitable duties for her.[5] She has unsuccessfully applied for several positions since that time, including as an assistant at train stations. Otherwise she has not resumed any employment.
[5]PCB 11
20 She remained under the care of Dr Mendis, who referred her for a further surgical opinion with Dr Proper. He also referred her to Dr Clayton Thomas, a pain management and rehabilitation specialist. Dr Thomas assessed her in July 2012. He said she was cooperative and made maximum effort in the course of examination. At that point, he thought her condition looked like a Myofascial Pain Syndrome with centralisation. He suggested Mrs Bastian attend the Victorian Rehabilitation Centre for a rehabilitation program.
21 She was referred for further surgical opinions from Mr Tran, and rheumatologist, Dr Patrick. She undertook an assessment at the Victorian Rehabilitation Centre at the request of Dr Thomas, but funding was not approved. In 2013, Dr Mendis referred her for further surgical opinion with a Mr Evans. Throughout this period, she continued physiotherapy treatment. Because of the pain, she developed Depression and was treated with an antidepressant, Pristiq.
22 In 2014, she was referred to Dr S K Vallipuram, a pain management specialist. At that time, she complained of ongoing significant pain in the right shoulder, which Dr Vallipuram thought was neuropathic in nature, with shooting and tingling sensation down the arm. He also noted her complaints of numbness and weakness in the right arm. On examination, he said she was exquisitely tender over the right arm. Dr Vallipuram recommended she undertake a pain management course at the Brunswick Private Hospital in conjunction with Dr Terence Lim.
23 Dr Lim first assessed her in April 2015 and arranged for her to attend the rehabilitation program at the Brunswick Private Hospital. He reviewed her thereafter on a number of occasions through 2016. Mrs Bastian reported to Dr Lim suffering severe pain which had become “hypervigilant as a consequence of becoming pain-sensitised …”. He said Mrs Bastian was very upset and had difficulties sleeping. He said:
“When I examined her, I found that she had evidence consistent with the development of central sensitisation as reflected by the presence of multiple, irritable muscles and in particular, multiple, exquisitely tender muscular trigger points distributed regionally and affecting her paracervical/shoulder girdle and right upper limb muscles.
These trigger points when gently palpated, were not only exquisitely tender but caused pain and neuropathic-like symptoms (numbness, tingling, electric shocks, pins and needles, burning) to be ‘triggered’ or referred down her right upper limb into her fingers, duplicating the pain/dysaesthesia that she had been complaining of and which would explain the cervical spine MRI not revealing a neurological cause for her right upper limb pain.
…
Diagnosis:
From my perspective, Mrs Bastian had become significantly pain-sensitised (central sensitisation) as a consequence of having suffered a work-related shoulder injury in 2009 which had further increased in severity with the passage of time. As well, it was my opinion that despite voicing her wont (sic) to return to some form of employment, Mrs Bastian's employment prospects were rather bleak at the time of my initial assessment due to her degree of sensitisation resulting in significant disability.”[6]
[6]PCB 72
24 Dr Lim went on to describe in detail the nature of Mrs Bastian’s pain sensitisation condition. It is clear from his report that it is a physical condition related to sensitisation of pain pathways to the brain. He said that the experience of persistent or chronic pain can be severe and disabling and required a comprehensive structured rehabilitation program. He said that cure was often not realistically achievable, but the program was designed to assist patients to deal with the Chronic Pain Syndrome.
25 Dr Lim supervised Mrs Bastian’s program at the Brunswick Private Hospital, commencing in July 2015, and he reviewed her regularly thereafter. Treatment included acquiring skills to deal with the pain and disability and the provision of a Ketamine infusion. Mrs Bastian was again admitted as an inpatient over the period September to October 2015 under the care of both Dr Lim and Dr Vallipuram.
26 In October 2015, she had further local anaesthetic nerve blocks to the shoulder area. Various medications were tried. By December 2015, Dr Lim reported her pain condition was better controlled.
27 In March 2016, Mrs Bastian underwent a hydrodilatation of the shoulder. This provided initial improvement and her mood also improved. Mrs Bastian did not see Dr Lim after July 2016. At the time, Mrs Bastian said that she still wanted to attempt some form of employment and Dr Lim arranged for her to undertake a computer course.
28 In September 2016, Mrs Bastian was referred to shoulder surgeon, Associate Professor Eugene Ek. He noted she had undergone a plethora of treatments, some of which had provided brief relief, but her pain was ongoing. An MRI scan showed subacromial bursitis and degeneration and tear of the posterior labrum. He arranged a further cortisone injection. He carried out a right shoulder arthroscopy and undertook a subacromial decompression.
29 According to her affidavit, none of the array of treatments has provided any long-term relief from the pain in right shoulder. She continues to see her general practitioner, Dr Mendis, on a fortnightly basis. He provides certificates of work capacity. She undertakes physiotherapy on a monthly basis.
30 She takes Panadol Osteo, morning and evening. She uses a heat pack on her shoulder. She takes Pristiq as an antidepressant.
31 She suffers constant pain in the shoulder, radiating down her right arm into the right hand. The pain also travels up to her neck. Before injury, cooking was a particular and significant pastime for her. She would cook for her family and guests. She now finds it difficult to carry pots and pans of any significant weight. Stirring, chopping and using her right hand are all difficult. The pain in her shoulder is worse in the evening and she suffers broken sleep. If she rolls onto the shoulder, she wakes in pain, and it is difficult to get back to sleep. She is drowsy in the mornings, and lacks concentration.
32 It is difficult for her to reach out with her right arm. It is difficult to do the laundry and hang the clothes on the line.
33 She drives short distances, limited to fifteen to twenty minutes. It is hard to use her right hand on the steering wheel. She does some light shopping.
34 Prior to the injury, she described herself as a social person, regularly attending family functions. She does that much less so now. Because of medication and inactivity, she has put on weight.
35 In the course of cross-examination, she was asked as to whether she would be able to undertake various areas of employment as suggested in vocational reports. She has never worked in an office and did not think she would have the qualifications. She said she has always worked with her hands. She said any form of employment would be difficult because of the constant pain in her shoulder. It was difficult to reach overhead. She denied telling the surgeon, Mr Ek, that her pain was improving all the time. She said her family assisted with the heavier domestic chores. She could not mop, clean the showers or toilets, or do the vacuuming.
36 She travelled to Thailand last year, and while she enjoyed the trip, she was often in pain.
37 She did not think she could work using a cash register as it would require repetitive use of her arm. She had undertaken a computer course, but had only basic skills. Stocking shelves would be very difficult. Working a switchboard would be difficult, and she had no experience. She thought working with children, particularly pre-school aged children, would be difficult, as she might have to lift them.
38 On average, her pain was 7 out of 10. On some days, particularly if she used the shoulder, it became 9 out of 10.
Medical evidence
39 Given the nature of the application, I shall confine my review of the medical opinions to those related to work capacity.
40 Dr Lim said, in his report dated 27 August 2015:
“She would not be able to return to pre-injury duties but would benefit from duties that does not involve heavy lifting or pulling.”[7]
[7]PCB 17
41 In his report dated 18 December 2012, Dr Mendis noted her condition:
“… was not improving … [and] … I have seen the patient several times over the last six months and the shoulder has remained largely unchanged. She still has severe pain of her right shoulder with severe restricted movements…She has constant pain and unable to gain any employment due to the illness.”[8]
[8]PCB 19
42 In his report dated 29 December 2015, he noted the deterioration of her mental condition and how she has constant pain and is unable to gain any employment.[9] In his final report dated 22 February 2018, Dr Mendis said Mrs Bastian still suffered from “severe pain on her right shoulder and … is unable to gain any employment due to her illness”.[10]
[9]PCB 25
[10]PCB 28
43 In a report of October 2011, NES Vocational Assessment suggested a number of areas of employment in which the plaintiff could be engaged, including as a switchboard operator and enquiry clerk. In a further report of September 2012, NES suggested further areas of employment, including as a receptionist. CoWork Pty Ltd, another vocational assessor, in a report of January 2016, outlined a number of further areas of employment, including as an out-of-school-hours childcare worker, retail sales assistant, office cashier and switchboard operator.
44 Those various reports assessed some of the tasks involved in those areas of employment and the gross earnings.
45 Both the plaintiff and the defendant retained consultant practitioners, Dr Joseph Slesenger, an occupational physician; Mr Garry Grossbard, orthopaedic surgeon; Dr Michael Baynes, occupational physician, and Dr Graeme Doig, orthopaedic specialist. Each of these practitioners examined the areas of employment suggested by the vocational providers and gave their opinions as to Mrs Bastian’s capacity to work in the areas of employment suggested.
46 All the practitioners placed quite extensive restrictions upon Mrs Bastian’s capacity to undertake work involving her right shoulder.
47 Mr Grossbard said:
“Theoretically I believe this lady does have a capacity to return to simple lighter duties where she is not required to lift, or repeatedly use her right arm. She would not be able to undertake work such as placing or removing objects from shelves at or above shoulder height.
…
… I think each of these options is theoretically possible for short periods, but there is concern about the requirement to be able to lift children. Retail work often involves retrieving and placing items on shelves, which this lady might find difficult. Working as an office cashier is feasible , providing she is not required to carry heavy cash boxes. As previously outlined, switchboard operating may require a degree of experience. I also note food services assistant has been placed on the list as a pre-injury employment. This lady was working in food service at the time of her dismissal, although this was in a reduced capacity and she was not able to undertake the full requirements of the job.
Whilst there are theoretical possibilities of this lady returning to work, the reality is, after five years of being unemployed and having had multiple shoulder surgeries and multiple admissions to hospital for chronic pain, the likelihood of being offered an appropriate job is very small.”[11]
[11]PCB 195
48 Dr Baynes did not think Mrs Bastian had the capacity for suitable employment in 2017, although she had not fully recovered from the 2017 surgery.
49 Dr Doig thought Mrs Bastian had the capacity for suitable employment within significant restrictions and was able to perform a number of the jobs suggested by the vocational assessors.
Submissions on behalf of the Defendant
50 Mr McKenzie, for the defendant, noted Mrs Bastian had skills which would assist in her obtaining employment. She had a past history of work in a kindergarten in India and was able to read and write well. She had undertaken a computer course. He noted that Dr Slesenger had suggested she had the capacity for sixteen hours of employment per week and that that practitioner said there was still some room for employment were she to undertake a further rehabilitation course.
51 He said that Mrs Bastian had done little to seek suitable alternative employment, aside from one or two job applications. He said that, realistically, she had the capacity to undertake many of the jobs referred to in the vocational reports and was able to work at least sixteen hours per week. In those circumstances, she did not meet the 40 per cent loss of earning capacity.
Analysis
52 There is no issue that Mrs Bastian suffered an injury to her right shoulder arising out of her employment with Southern Cross. This had required an array of treatments, including two surgical repairs, a number of injections, and a period of inpatient treatment at the Brunswick Private Hospital, including a Ketamine infusion.
53 I found Mrs Bastian an impressive witness, providing a fair account of her right shoulder injury and its consequences. I accept her evidence, both in the course of cross-examination and her affidavits, that despite this extensive treatment, she has been left with a very painful shoulder which restricts her significantly in her recreational, domestic and social tasks and pastimes. Quite properly, Mr McKenzie, for the defendant, did not seek to argue that the consequences met the pain and suffering threshold. For the purpose of this application, I do not find it necessary to assess in detail the opinions of the various consultant practitioners who have undertaken an assessment of Mrs Bastian’s capacity to undertake the tasks of suggested employment.
54 The opinion which I found of most assistance in assessing Mrs Bastian’s work capacity is that of the treating pain management specialist, Dr Terence Lim, who assessed and treated Mrs Bastian over a considerable period from April 2015 until July 2016. His report is comprehensive and he is an acknowledged specialist in the field of pain management. He set out in detail the nature and effect of the Chronic Pain Syndrome from which I am satisfied Mrs Bastian now suffers. It involves a sensitisation of the area of injury, and of the neuropathic pathways to the brain. He described the pain as being severe and disabling. He noted that some people with the disorder do not recover and despite some improvement over the course of her treatment at the Brunswick Private Hospital, Mrs Bastian has been left significantly disabled.
55 While it may be said that from time to time Mrs Bastian might be able to perform some of the tasks referred to in the areas of employment suggested by the vocational assessors, with the nature and extent of her pain, I am not satisfied that Mrs Bastian has any realistic capacity for employment in any of those areas. Given the pain and her problems with sleep, she would be able to attend work on a regular basis, and to perform the duties involved reliably or consistently. I accept her description of the pain as disabling and accept that it interferes with many of her tasks of daily living. To this must be added the fact that she has only ever worked in Australia in manual duties, and in the food services and care industries. She has no experience or training in retail or office work.
56 When I factor in the various criteria of “suitable employment” referred to in s3 of the Workplace Injury Rehabilitation and Compensation Act 2013, in particular, the nature of Mrs Bastian’s incapacity and her age, education, skills and work experience, I am satisfied that she has realistically little, if any, current work capacity. I am satisfied that her condition is permanent, in that there is no reasonable prospect of improvement in the future. Dr Slesenger did, recently, suggest she be referred back to a pain specialist and that she may not have reached maximum medical improvement, but he did say that she is nearing that position. Given the extensive treatment which she has undertaken, I am not satisfied that any further referrals will make any significant difference.
57 As a consequence, the plaintiff’s application succeeds, both as to pain and suffering and loss of earning capacity.
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