Carroll v VWA
[2016] VCC 183
•3 March 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03518
| DEAN CARROLL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 February 2016 | |
DATE OF JUDGMENT: | 3 March 2016 | |
CASE MAY BE CITED AS: | Carroll v VWA | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 183 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Application for pain and suffering only – aggravation injury to right upper limb – nature of injury – whether consequences serious
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Plaintiff’s application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Clements QC Ms A. Ryan | Maurice Blackburn Lawyers |
| For the Defendant | Mr P. Elliott QC Mr R. Lewis | Wisewould Mahony |
HER HONOUR:
Introduction
1 I propose to dismiss the plaintiff’s application to commence common law proceedings pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to recover damages for an aggravation injury to his right shoulder arising out of the course of his employment with his former employer, T & J McPherson Pty Ltd (the employer). My reasons for so ordering are set out in the paragraphs that follow.
2 Leave was sought under paragraph (a) of the definition of ‘serious injury’ to recover damages for pain and suffering only for permanent serious impairment of the plaintiff’s right upper limb. In the context of the Act, ‘permanent’ refers to impairment of the right upper limb that is likely to last for the foreseeable future. ‘Serious’ refers to the pain and suffering and loss of enjoyment of life consequence, which when judged by comparison with other cases in the range of possible impairments is fairly described as being more than significant or marked and as being at least very considerable.
3 Both parties tendered extracts from the Court Books.[1]
[1] Exhibits P1, Plaintiff's Court Book (PCB) and D1, Defendant's Court Book (DCB)
4 The plaintiff tendered:
· two affidavits sworn on 21 February 2014 and 13 October 2015 respectively.
· medical reports, comprising reports from treating health specialists, general practitioner, Dr Towie and rheumatologist, Dr Lewis and treating physiotherapists, Ms Jacobs and Mr Chidananda and from medico-legal specialist, orthopaedic surgeon, Mr Miller.
· The results of x-ray and ultrasound investigations of the right shoulder on 19 April 2011.
· Copy Worker’s Claim Form dated 27 July 2011.
· A single page extracted from the first report of the defendant’s medico-legal specialist, orthopaedic surgeon, Mr Michael Dooley, dated 26 June 2014.[2]
[2] Exhibit P2, DCB 17
5 The defendant tendered:
· an affidavit sworn on 29 September 2015 by the proprietor of the employer, Tyne Lachlan McPherson.
· Medico-legal reports submitted by specialist in occupational medicine, Dr Baker; general and trauma surgeon, Mr Gale; and three further reports submitted by Mr Michael Dooley during 2015 and 2016.
· An undated photograph of the plaintiff, which under cross-examination he agreed was taken on a delivery run to Lavington New South Wales in November 2013.
6 The plaintiff presented as a hardworking individual, who sensibly modified his day-to-day activities so as to accommodate his condition. I was not, however, satisfied that where inconsistencies arose between, the plaintiff’s recall of matters, including discussions with doctors many years earlier, his evidence should be preferred to the records kept.
The circumstances in which the plaintiff suffered compensable injury
7 The plaintiff is a 45-year-old truck driver, who was employed by the employer between about July 2010 and April/May 2011. The circumstances in which compensable injury occurred are described in his first affidavit and oral evidence.
8 The plaintiff worked on tankers loading and delivering hazardous and non-hazardous chemicals. He describes the circumstances in which he suffered compensable injury in the following way:[3]
8. I sustained injury on 1 February 2011 to my right shoulder. I was delivering a load of kerosene to a site in Geelong. I was required to discharge the chemical from my tanker to the holding tank at the Geelong site. The transfer of the kerosene required me to start a pump on my trailer. I was required to pull a rip cord on the motor. I tried a number of times to start the pump. I had about 2 or 3 goes and then eventually got it going. I used my right dominant hand to pull the cord.
9. I knew immediately that I had done something to my right shoulder. This was because the cord pulled back if the choke was not engaged at the same time. It was difficult to do both tasks. As I was in work mode and my arm was warm I was able to continue working that day but later as I cooled down at home I felt the pain. However I continued working through the pain (the incident).
[3] PCB 3
9 Some months elapsed before the plaintiff sought active treatment. During this period the plaintiff said he continued to work loading tankers and making local deliveries of tanks of chemicals. He could not recall using the pump after the incident.
10 Radiological investigation involving x-ray and ultrasound of the right shoulder, obtained on 19 April 2011 by general practitioner, Dr Towie, revealed relevant pathology. The x-ray identified minimal degenerative change in the region of the acromioclavicular joint. More particularly, the ultrasound identified biceps tendinosis and a partial thickness, incomplete tear of the anterior aspect of the supraspinatus tendon in its anterior portion. The plaintiff consulted Dr Towie on 3 May 2011. The doctor diagnosed a rotator cuff injury, noting further that the plaintiff was incapacitated for work as a result.
11 At hearing the plaintiff said he ceased employment with the employer from about April/May 2011.
12 The plaintiff’s claim for compensation dated 27 July 2011 was accepted.
The issues for determination
13 At hearing the defendant conceded compensable, unresolved aggravation of pre-existing degenerative disease in the right shoulder.
14 I was called upon to determine the following matters:
· Whether, on balance, the injury suffered also involved a tear of the rotator cuff?
· Whether the pain and suffering and loss of enjoyment of life consequence of impairment of the right upper limb is fairly described as being at least very considerable?
Additional background matters
15 The plaintiff lives with his partner and her two adult children. He was educated to Year 9 at a Technical School. He holds heavy vehicle licenses and has worked most of his life in the transport industry. The plaintiff deposes that, prior to commencing employment with the employer, he worked mainly on tankers with various companies including, Scotts and Collex.
16 There is no evidence that the plaintiff suffers from ongoing impairment as a result of right knee, right hand or back injuries suffered in the years prior to the incident.
17 When opening the plaintiff’s case, senior counsel referred to: “a couple of short lived episodes of shoulder pain” without there being significant issues with the plaintiff’s shoulders prior to February 2011.[4] Notably, Mr Dooley’s reports refer to a clinical note dated 28 July 2010 recording an attendance for treatment of sore shoulders/bursitis.[5]
[4] Transcript (TN) 3
[5] DCB 25
18 Under cross-examination, the plaintiff recalled some shoulder pain before the incident but not an attendance on Dr Towie or treatment for this. He recalled an earlier episode of bilateral shoulder soreness occurring in about 2008, for which he was sent to Scotts’ doctor. This doctor apparently mentioned bursitis “or something”.[6] The plaintiff said the condition resolved within a week (“or something like that”[7]) without treatment. He recalled a day or two off work. The plaintiff attributed this episode to poor handling techniques whilst learning tanker driver duties in the fuel industry after commencing work with Scotts.
[6] TN 53
[7] TN 55
19 Whilst the date of this episode was not of particular moment in this application, I could not be satisfied from the evidence as a whole that there was not also an episode around 28 July 2010 coinciding with clinical note said to have been made on that date. I have, nonetheless, accepted the plaintiff’s evidence that any episode of shoulder soreness or treatment before the incident was short-lived. Suffice to say, I proceeded on the basis that the right shoulder condition was largely asymptomatic prior to the incident.
20 As to any current unrelated health issues, the plaintiff deposes he is receiving treatment for diabetes type II and for hepatitis C. Both conditions were said to be under control.
21 As to the consequences of injury, the plaintiff deposes that prior to the injury he led an active and full life enjoying activities such as swimming, including competing in the Lorne Pier to Pub on at least two occasions and playing golf and he worked full-time some 40 to 60 hours per week “basically” pain-free.[8] Apparently, the plaintiff also relied on swimming as an exercise to improve his general health.
[8] PCB 17
22 The plaintiff deposes he now suffers chronic pain in his right shoulder, he sometimes experiences pins and needles in his right arm and he has noticed loss of strength in the arm.
23 The plaintiff complains pain disrupts sleep and impacts on his work as a tanker driver and on his relationship with his partner. As to the latter, pain apparently quickens the plaintiff’s temper and makes him more difficult to live with. Pain and impairment have reduced the frequency and distance the plaintiff swims and the frequency with which he rides a motorbike. He no longer plays golf. The plaintiff’s condition also restricts his participation in activities in his domestic environment such as gardening (including completing the landscaping of the garden in his new home and heavier household tasks).
The nature of the injury suffered
24 As mentioned, the defendant disputed the plaintiff’s claim that the injury suffered also involved a tear of the rotator cuff. Medical opinion in this regard is divided. The plaintiff’s description of the onset of symptoms as recorded by treating and medico-legal health professionals and, where this was known, the delay in seeking active treatment, no doubt influenced doctors’ understanding of the nature of the injury suffered.
25 Dr Towie referred the plaintiff to rheumatologist, Dr Lewis. He examined the plaintiff on 12 December 2011. Among other things, Dr Lewis obtained a history. As recorded this indicated the plaintiff had not been able, in the doctor’s words, to:[9]
recall any specific site where the pain began and no pain at the actual time of the event but gradually over time he started to get an ache in the right shoulder. He kept working but saw his GP in April, 2011. An ultrasound suggested a rotator cuff tear and whether this was a recent or old tear could not be determined. By May 2011 he was really struggling to work and has not worked since.
[9] PCB 26
26 Dr Lewis diagnosed rotator cuff syndrome. He recommended treatment (evidently physiotherapy) and assessed a capacity for work not involving repetitive abduction of the arm. However, in view of the history received, Dr Lewis expressed uncertainty about the causal relationship between the incident and the progressive shoulder pain and dysfunction reported.
27 Under cross-examination, the plaintiff challenge the accuracy of the history recorded by Dr Lewis, whom he believed had not been interested in his problem (“… yeah, that’s right, he has got it wrong. He was – I’m sure if he’s the one I am thinking of, he said, “Go back to work straight away.” He wasn’t interested.”[10]).
[10] Transcript (TN) 54
28 The report from physiotherapist, Ms Jacobs, who treated the plaintiff once on referral from Dr Lewis on 16 January 2012 does not assist in this regard.
29 The plaintiff, however, relies on medico-legal reports obtained by the defendant from specialists, Dr Baker in April 2012 and Mr Gale in January 2013 and by his solicitors from Mr Miller in August 2015 and August 2016. The plaintiff also relies on the history recorded by Mr Dooley in the first of four reports submitted by him. The defendant generally relies on the opinion expressed by Mr Dooley on this issue, and reiterated in his final report in January 2016.
30 The relevant extracts from each doctor’s report recording details of the onset of pain and disability as a result of the incident and their diagnoses are set out as follows:
· Dr Baker reported, following examination on 30 March 2012 and review of the results of the radiological investigations:
… as he pulled the cord to start the pump he injured his right shoulder. He states that he continued at work but had ongoing pains in the region. He did not think it was too serious and hoped it would recover and continued to drive for the next three months.… He notes he stopped work because his shoulder was getting worse and he resigned in May 2011.[11]
[11] DCB 6
Mr Carroll sustained a soft tissue injury to the right shoulder with a partial tear of the supraspinatus tendon and tendinosis of the biceps tendon.[12]
[12] DCB 9
· Mr Gale reported, following impairment assessment on 7 January 2013 and review of the films and the radiologist’s reports:
He recalls an incident when he was pulling on a cord that was to start a petrol pump when he developed an aching discomfort over the anterior aspect of the right shoulder. The discomfort persisted and there was some restricted range of shoulder girdle motion. Initially the worker did not seek medical attention, but two months later attended his local doctor… Initially no specific treatment was implemented, but because of persisting symptoms ultimately the worker was referred to a rheumatologist in December 2011….[13]
[13] DCB 11
As a result of an incident of injury… The worker is likely to have suffered some soft tissue damage within the right shoulder girdle, possibly to the rotator cuff structures. It is also possible based on current clinical evaluation that there is additional pathology within the right shoulder girdle, with a possibility of some damage to the glenoid labrum.[14]
[14] DCB 13
· Mr Dooley has consistently diagnosed aggravation of underlying degenerative rotator cuff disease but questions whether injury also involved a tear of the supraspinatus tendon. Mr Dooley examined the plaintiff for the first time on 19 June 2014. He re-examined the plaintiff on 7 February 2015 and on 19 January 2016. Additional to his findings on clinical examinations, Mr Dooley’s diagnosis was informed by the clinical note already mentioned, by his interpretation of the radiological investigations and by consideration of Mr Miller’s report dated 31 August 2015:
Mr Carroll said that he was operating a rip cord type start on the pump. He said that the choke was not engaged properly and as he pulled, he felt acute pain in the right shoulder region. He continued in his work but he noted ongoing right shoulder girdle pain. He began to note weakness of his shoulder. Mr Carroll said that he attended his local doctor.…[15]
[15] Exhibit P2, 17
I have viewed the radiological investigations of April 19, 2015. I believe that in addition to the radiology report, there is evidence of sclerosis of the greater tuberosity. This indicates rotator cuff degeneration of long-standing. I agree that the ultrasound shows a partial thickness tear of the supraspinatus tendon. In my view, the partial thickness tear noted on ultrasound investigation is of a chronic nature and secondary to degeneration of the rotator cuff. The pathophysiology of tearing within a degenerating supraspinatus tendon in early middle age and beyond is thought to relate to impingement of the tendon beneath the acromion process and coracoacromial ligament. Depending on the anatomy of the anterior part of the acromion process, some patients may be more vulnerable to this than others. With ongoing impingement, in time partial thickness tearing of the tendon occurs. This may progress to a full thickness tear. As the underlying degenerative process evolves in time, progression may occur to a large full thickness tear.… I do not believe that the partial thickness tear of the supraspinatus tendon has occurred acutely as a result of the work-related episode. I believe that it was present at the time of the work-related episode as part of the underlying degenerative process and that the degeneration of the rotator cuff was aggravated in the work related episode.[16]
[16] DCB 24
The clinical notes on 28 July 2010 refer to Mr Carroll having sore shoulders/bursitis. In my view it is more likely than not that the complaint of pain in the shoulders at this time related to Mr Carroll’s existing degenerative rotator cuff disease. As often is the case, symptoms may come on spontaneously or they may have occurred in relation to Mr Carroll’s work.[17]
[17] DCB 25
I remain of the view that in the work-related episode of February 2011 Mr Carroll aggravated underlying naturally occurring degenerative rotator cuff disease of the right shoulder region. I remain of the view that the tear of the supraspinatus noted on radiological investigation is part of this degeneration.[18]
[18] DCB 25B
· Mr Miller examined the plaintiff once on 20 August 2015. He apparently reviewed the radiological material and had the benefit of seeing reports of Dr Lewis, Dr Baker, Mr Gale and Mr Dooley:
As he pulled the rip cord on approximately 2-3 occasions, he developed severe pain in the right shoulder. He felt a tearing sensation. He continued working, albeit with severe difficulties.
He reported the matter and saw his local medical officer approximately a few days later. He does not recall specifically having time off work. He persevered and continued working with the symptoms. His symptoms continued to slowly deteriorate and he ceased work in approximately May 2011.[19]
[19] PCB 35
The client suffered an injury to the right shoulder with a muscular-ligamentous strain to the shoulder and development of right rotator cuff dysfunction with probable partial thickness tearing in the shoulder and development of some symptomatic arthritis in the acromio-clavicular joint. It is likely he had some pre-existing, but asymptomatic disease in the shoulder. This has been rendered symptomatic and there is further superimposed injury. He now has problems with symptomatic arthritis in the acromio-clavicular joint, rotator cuff dysfunction, impingement and probable partial thickness tearing and biceps tendinopathy.[20]
[20] PCB 38
In relation to the pathology and the shoulder, I believe the views of Mr Dooley and myself are similar in that there is agreement that there is likely pre-existing disease in the shoulder. This has been aggravated by the work injury….
It is however my view, that that effect of that work injury persist and account significant for the clients current clinical status (sic).
It is not my view that the work-related component has resolved and I do not see the basis for forming such a view as it is clear that the client has ongoing symptoms in the right shoulder. They had their onset following the work injury described in as far as I am aware there was no past history of shoulder problems.
I note in particular that the client has reported no symptoms in the left shoulder to either myself or Mr Dooley and one would on that basis anticipate that had the work-related component of the injury resolved that the right shoulder would now behave in a broadly similar way to the left shoulder and the symptoms that is symptom free (sic).
It is clearly not the case in my view this lends significant support to the proposition that there are ongoing issues in the right shoulder that relate to the effects of the work injury.
I note in that regard, that the work injury appears to have been a clearly defined event and that your client sought review by a medical practitioner soon after that injury.[21]
[21] PCB 41a-b
31 On the evidence available to me I could not be satisfied the aggravation injury suffered as a result of the incident also involved traumatic tearing injury to the supraspinatus tendon. In reaching this conclusion I gave weight to the following matters:
· the plaintiff sworn account in his first affidavit where he outlines his recollection of the onset of pain and confirms the delay in seeking medical treatment.
· the variations in the recorded accounts of the initial onset and severity of pain over a 4 ½ year period of specialist assessment.
· Within 10 months of the incident Dr Lewis appears to have sought specific answers from the plaintiff to questions about his recollection of when and where pain started and the severity of this. The uncertainty expressed by Dr Lewis is entirely understandable when viewed in the context of the history recorded by him. On this occasion, I preferred this comparatively contemporaneous record to an account based on an attempt to recall a discussion with the doctor many years earlier.
· Dr Baker’s report says little about the initial onset and severity of pain.
· Mr Gale notes the onset of aching and persistent discomfort. His diagnosis only allows for the possibility of damage to the rotator cuff structures.
· I accept the plaintiff probably believed this to be accurate when, in August 2015, he gave Mr Miller a more dramatic account of the onset and severity of pain at the time of the incident. Mr Miller understood, as it turns out wrongly, that the plaintiff sought medical treatment within a few days of the incident. Mr Miller’s discussion of Mr Dooley’s report fails to address the real difference in their opinion. Moreover, he appears to proceed on the incorrect assumption that Mr Dooley concluded the aggravation injury was resolved.
· Mr Dooley is perhaps the best informed of the medico-legal specialists. He directly addresses the causation issue and provides detailed reasons for his opinion that the partial thickness tear of the supraspinatus tendon was not the product of an acute work-related episode.
32 I proceeded on the basis that, as a result of the incident, the plaintiff is suffering from unresolved aggravation of pre-existing degenerative disease of the right shoulder.
Treatment and return to work following the incident
33 As we know from the affidavit evidence and the earliest reports submitted by treating health professionals, the plaintiff’s treatment commencing from early 2012 involved physiotherapy and gym exercises. Physiotherapist, Ms Jacob’s report tells us that, on referral by Dr Lewis, in mid-January 2012 the plaintiff presented with muscle weakness secondary to pain inhibition and disuse. The salient parts of her only report are summarised in the following points: [22]
[22] PCB 29-31
· the plaintiff complained that pain was variable in intensity and he continued to experience 6/10 jolts of pain with aggravating activities;
· the plaintiff said that pain disrupted his sleep about three times per night, particularly if he was resting on his right side;
· among other clinical signs, the physiotherapist found decreased bulk in the right posterior shoulder muscles and restriction in active movements of the right shoulder;
· the physiotherapist envisaged significant improvement in the function of the shoulder with regular treatment.
34 The initial period of treatment by physiotherapist, Mr Chidananda commenced from March 2012. Treatment apparently involved taping to help manage pain, dry needling and mobilisation of the upper cervical spine and shoulder and strength training. It may also be that the plaintiff undertook hydrotherapy for a short time during 2012. Judging from his responses during cross-examination, using dumbbells during pool exercises had aggravated rather than relieved his symptoms.[23] According to the plaintiff, the initial period of treatment by Mr Chidananda lasted until he returned to work in 2012.
[23] TN 50
35 It appears that, following the incident, having ceased work in about April/May 2011, in January 2012, Dr Towie cleared the plaintiff for suitable alternative work but none was found. He was cleared for normal duties on 10 August 2012. The plaintiff said this was at his request.
36 The plaintiff resumed employment as a tanker driver, working on a fuel tanker. He spent the next couple of years working with Cootes. This work involved long runs of more than four hours, which the plaintiff deposes caused him significant discomfort. According to the plaintiff, he worked four, 12 hour shifts per week. Apart from lifting and coupling hoses, this work did not also involve operating pumps. Despite, from time to time, crossing the border into New South Wales, the plaintiff said he was classified as a local driver and completed these longer trips within his 12 hour shift.
37 Between dates not mentioned at hearing, the plaintiff said he had about eight further treatments with another physiotherapist to whom he was referred by a Dr Burke following a flare-up whilst working with Cootes.
38 I proceeded on the basis that this period of treatment had occurred before the plaintiff’s employment with Cootes ceased in September 2014, after he purchased a 2000 Freightliner prime mover. He has since worked as an owner driver.
39 The plaintiff currently works under contract to a company. He delivers oil. He attaches the company’s tanks to his prime mover. The work is mainly local. So far, the furthest the plaintiff has been required to travel has been to Warrnambool or Sale. There are no overnight trips. As I understood the evidence, the plaintiff works Monday to Friday but the hours are not fixed. The work is allocated and the plaintiff must work out the quickest route to complete the trips, which might require seven, eight or even 12 hours driving for the return journey.
40 It was not suggested at hearing that the plaintiff could no longer work as a tanker driver, that he was earning less or that he was likely to earn less in the future from driving tankers as a result of the work-related injury. Rather, the plaintiff relied on the fact that pain interfered with his work as a tanker driver.
41 At hearing, the plaintiff agreed he had not consulted a general practitioner between 29 January 2014 and 3 July 2015. The plaintiff deposes he gained great benefit from physiotherapy treatment because this relieved but did not eliminate pain completely. He started seeing Mr Chidananda again on 15 July 2015.
42 Mr Chidananda’s report dated 26 October 2015, among other things, indicates the following:
· The plaintiff was at the time attending physiotherapy on a fortnightly basis.
· The plaintiff’s symptoms in October 2015 were: right shoulder and neck pain with prolonged sitting and driving; difficulty swimming and riding a motor bike; and an inability to lift and work overhead.
· The plaintiff reported altering his working hours to accommodate regular flare-ups in right shoulder and neck pain, for the symptoms of which he sought treatment and medication. Mr Chidananda predicted the plaintiff may have similar issues: “for a while before the injury stabilises completely”.[24]
· In late October 2015, Mr Chidananda envisaged further flare-ups, albeit infrequently. He recommended a three month course of end stage rehabilitation involving a planned exercise program at a local gym with fortnightly reviews by a physiotherapist. This would, he said, improve the plaintiff’s endurance and help him pursue activities such as swimming.
[24] PCB 32c
43 The plaintiff’s second affidavit was sworn nearly two weeks before the physiotherapist made his report. The plaintiff deposes he resumed physiotherapy from July 2015 due to worsening shoulder pain. He further deposes he was booked for weekly appointments. At hearing the plaintiff described a current treatment regime consisting of physiotherapy with Mr Chidananda, every Wednesday when work permits and application of various pain relieving gels (Decorub, Goanna and Ice) nightly and regularly before work, following his morning shower. The plaintiff blamed work commitments and relocation of the physiotherapist’s rooms for not always attending his Wednesday appointment.
44 The plaintiff recalled “maybe” a couple of physiotherapy treatments in the four months preceding the hearing, the last being before Christmas. Cross-examination, however, established irregular attendances in 2015 and none so far for 2016. There were, in all, eight attendances: on 15, 22 and 29 July, 19 August, 9 September, 12 October, 4 November and 11 December 2015.
45 I understood from the evidence as a whole that, as a general rule, the plaintiff relied on physiotherapy during periods of exacerbation of pain. I could not, however, reconcile the evidence in October 2015 of the physiotherapist that appointments were fortnightly or his recommendation for ongoing fortnightly review during a three month period of end stage rehabilitation, with the plaintiff’s sworn and oral evidence about the frequency of treatments since July 2015.
46 That said, I accept that work commitments on occasion and even relocation of the physiotherapist’s rooms may have contributed to an inability to attend, irrespective of whether the appointments were fortnightly or weekly. I was not, however, satisfied that the plaintiff’s evidence adequately explains the gaps in treatment, more particularly the five week gap between 4 November 2015 and 11 December 2015 and the two month gap between 11 December 2015 and the date of hearing. These gaps suggest the plaintiff symptoms were not such as to warrant obtaining alternative or further appointments for any of the therapies offered by the physiotherapist. In reaching this conclusion I allowed for the following factors.
47 Firstly, the evidence, including the recent specialist medical opinion (my analysis of which is summarised shortly), suggests a pattern of attendance for physiotherapy treatment only during periods when pain flares. The tapering off in attendances following a likely flare-up in or around mid-2015 is consistent with treatment having, as in the past, improved and/or resolved the flare-up in symptoms.
48 Secondly, the plaintiff has been encouraged to strengthen his right shoulder with exercise, which includes swimming. At hearing the plaintiff indicated he has a treadmill machine at home but does not have an exercise regime. As I understood the plaintiff’s evidence, the physiotherapist believed swimming would help his condition and had encouraged him to resume this exercise as an adjunct to the rehabilitation program envisaged for the three months after the report was submitted in late October 2015.
49 Prior to his attendance for treatment on 4 November 2015, the plaintiff had, he agreed, completed a couple of sessions in a 25 metre pool (four laps). Whilst the plaintiff appeared to prevaricate when questioned about this issue, in essence, he said he rarely swam and, if he did, it was only 25 metres each way because of the discomfort experienced even when swimming freestyle.
50 The plaintiff said he last attempted the Pier to Pub swim in 2013 and had no intention of trying again because he had only been able to finish the swim by stopping and dog paddling along the way.
51 In short, I concluded the plaintiff probably can still swim for exercise and/or recreation, albeit less frequently and over shorter distances. He is understandably frustrated by his reduced capacity to undertake this activity and the loss of opportunity to participate in future Pier to Pub events.
52 Lastly, there is scant evidence of any medication regime or, save for periods of physiotherapy, evidence of consideration of alternative means of relieving pain and symptoms, such as injections.
53 For instance, none of the documentary evidence tendered indicates prescription of painkilling or anti-inflammatory medication at any time. I infer from Dr Towie’s only report in September 2012 and Dr Lewis’ report on 12 December 2011, that these treating doctors did not establish a medication regime in 2011 or 2012.
54 That said, extracts from both affidavits set out below indicate the plaintiff is an individual who typically avoids taking medication, evidently due to the potential side-effects:
In February 2014
29. I try to limit the medication that I take for pain because I do not like the consequences which have included constipation and also some bleeding after bowel movement. As a result of these consequences I really do the best to put up with the pain and only take medication when it is most severe. [25]
In October 2015
15. I do take pain relieving medication from time to time but I limit this medication as I drive for a living and am concerned about the side effects of medication.[26]
[25] PCB 19
[26] PCB 23
55 It was not clear from this evidence, whether the side effects described by the plaintiff were the result of taking pain relief medication following the incident. I, nonetheless, accept that the plaintiff typically avoids the use of painkilling or anti-inflammatory medication, prescription or otherwise.
56 Of course, no medication or very limited use of medication to relieve symptoms are matters relevant to assessment of the severity of pain and symptoms experienced by the plaintiff and the extent of any likely interference of pain with a range of activities. I will say more about these matters shortly. However, the observation I make at this juncture is that, where, as in this case, the plaintiff relies on physiotherapy treatment to relieve worsening symptoms, logic dictates attendance for physiotherapy treatment should be more not less regular even if other factors require changing appointments.
Current specialist examination and opinion
57 I have already noted the different opinions regarding likely causation of the tear to the supraspinatus tendon observed on ultrasound in April 2011. There is no up-to-date radiology.
58 The parties, nonetheless, agree the injury involves unresolved aggravation of pre-existing, asymptomatic degenerative disease of the right shoulder.
59 The salient features of Mr Miller’s only report dated 31 August 2015 are summarised in the following points:
· the plaintiff complained of pain and discomfort in the right shoulder radiating into his elbow. Repetitive activities exacerbate pain, with overhead activities being the worst. His symptoms fluctuated without any pattern towards improvement and caused difficulties with activities of daily living and some difficulties with driving the truck, although the plaintiff reported being able to manage that aspect of his employment.
· Clinical examination of the right shoulder revealed a slightly prominent and tender acromio-clavicular joint, minor deltoid muscle wasting, (having measured these) restrictions in active movements, some tenderness in the bicipital groove and irritability during shoulder movement.
· The plaintiff’s injuries have substantially stabilised. The prognosis for the shoulder is only fair.
· The plaintiff will require conservative treatment indefinitely.
· The current conservative treatment regime described by the plaintiff involving weekly physiotherapy with dry needling was appropriate. In view of the report from the physiotherapist, it is unlikely that in August 2015 the treatment regime was more frequent than fortnightly or that it was envisaged that this regime would be maintained after completing an end stage rehabilitation program by late January 2016 or thereabouts.
· The plaintiff may benefit from surgical intervention to the right shoulder in the form of arthroscopic assessment and treatment of the shoulder. Whilst Mr Miller envisaged some risk of developing arthritic disease in the shoulder joint, this was not a matter on which the plaintiff placed particular reliance in this leave application.
· Whilst the plaintiff copes with his work as a tanker driver, there are permanent restrictions on the plaintiff performing work involving large amounts of repetitive arm actions, use of his arms in the above shoulder position or lifting weights exceeding five kilograms.
· Mr Miller appears to have accepted that the plaintiff’s capacity for heavy domestic and gardening activities is permanently reduced, as is his capacity for pre-injury leisure and recreational activities such as playing golf regularly and swimming.
60 Mr Dooley reviewed the plaintiff twice, on 7 February 2015 and again on 19 January 2016. As far as I could tell, on each occasion the complaints recorded, the findings on clinical examination and the opinions expressed by Mr Dooley were much the same as before. The salient features of Mr Dooley’s most recent reports are summarised in the following points:
· the plaintiff continues to complain of constant background aching pain with intermittent exacerbations and nocturnal pain. Activities such as swimming can aggravate pain. Notably, in January 2016 the plaintiff reported more frequent exacerbations of right shoulder girdle pain over the preceding six months. This evidence helps explain the attendances for physiotherapy treatment between 15 July 2015 and 11 December 2015, but not the progressively greater intervals in seeking active treatment.
· In the months preceding Mr Miller’s examination, clinical examination by Mr Dooley in February 2015 revealed no local tenderness, a full range of motion of the right shoulder, a positive impingement test, the power of the musculature was intact and mild tenderness over the lateral epicondylar region of the right elbow. In January 2016 clinical examination revealed mild tenderness in the region of the acromion, a full range of motion of the right shoulder and a positive impingement test, without complaint of neck or shoulder girdle pain on moving the cervical spine. It is always difficult to reconcile conflicting clinical findings. In this instance, however, the full range of motion found by Mr Dooley both in February 2015 and January 2016 as compared to the restrictions measured by Mr Miller in August 2015 can be reconciled if one accepts, as I have, that Mr Miler’s findings were made during the period physiotherapy treatment was being administered for a flare-up in symptoms.
· The plaintiff’s condition remains stable. If, however, he were to note any significant exacerbations of pain that failed to settle in a timely fashion, Mr Dooley suggested subacromial cortisone injections (et cetera) were worth considering.
· Mr Dooley, like Mr Miller, envisaged no current role for surgical intervention, although he did not rule out arthroscopic subacromial decompression surgery in the future should the plaintiff develop significant ongoing pain with associated impingement.
· There was some prescience in Mr Dooley comments in February 2015 to the effect that, whilst physiotherapy treatment would not alter the natural course of the plaintiff’s condition, it was appropriate for periods when pain was worrying the plaintiff more than usual.
61 In summary, the evidence of the treating physiotherapist and these specialists helps establish the following matters:
· injury-related impairment of the plaintiff’s right shoulder is likely permanent in the sense contemplated by the Act.
· The condition is probably stabilised.
· No further investigations have been recommended.
· The plaintiff will probably need to maintain a conservative treatment regime indefinitely. This will likely involve discrete periods of physiotherapy when pain flares.
· If these were ever considered, potential alternatives to using pain relief medication, such as cortisone injections are not under consideration.
· The plaintiff may benefit from surgical intervention in the future. This is a possibility only. Currently, there is no recommendation for further radiological investigation of the plaintiff’s condition or for surgery.
Pain and Suffering Consequences
62 I now turn to consider the pain and suffering and loss of enjoyment of life consequence of the application for leave under paragraph (a) of the definition.
63 As the Court of Appeal has explained in Haden Engineering Pty Ltd v McKinnon,[27] the pain and suffering consequence encompasses both the plaintiff’s experience of pain and the disabling effect of pain on his physical capabilities (including his capacity for work) and enjoyment of life.
[27] [2010] VSCA 69 [9]-[17]
64 As to the plaintiff’s experience of pain, the affidavit evidence in this regard has been summarised in passing.
65 In his affidavits the plaintiff spoke of sleep disrupted by pain and discomfort and not feeling rested as a result.
66 In further evidence-in-chief the plaintiff said pins and needles and pain in the neck and right shoulder woke him. In his words this happened: “every night pretty much”. [28] As a result, the plaintiff was not always able to go back to sleep.
[28] TN 25
67 The plaintiff said he experienced pain on a daily basis with a feeling of instability and a burning sensation up and down his arm and shoulder area. His subjective assessment of the intensity of pain was 6-8/10. As I understood the plaintiff’s evidence, the intensity of his pain does not improve, if anything, it worsens.
68 Inevitably, an assessment by a lay person of their experience of pain on a scale of one to ten is an imprecise measurement. Depending on how the question is framed, the answer given may be influenced by an individual’s ability to tolerate more or less pain or it may reflect the adequacy of pain relief measures.
69 In this case, I could not reconcile the plaintiff’s evidence about the intensity of his daily pain experience or the extent to which the plaintiff indicated his sleep continued to be disturbed: with the medical evidence already summarised; with medical and other evidence as it relates to the disabling effect of pain; or with the limited steps taken by the plaintiff to manage pain overall. My reasoning in this regard is further explained by my summary of the likely impact of impairment of the right upper limb on the plaintiff’s day-to-day activities and his enjoyment of life, with due regard to what has been lost to the plaintiff and what has been retained.
70 The plaintiff is able to work in a physical capacity moving and coupling hoses and accessing and driving a prime mover for long periods, albeit with discomfort he said increases with longer runs of four hours or more to, say, Warnambool.[29]
[29] PCB 23
71 The plaintiff can no longer swim long distances, although he retains the capacity to swim shorter distances in a pool for exercise and recreationally. He has been encouraged to swim by the treating physiotherapist to help strengthen the right shoulder.
72 The plaintiff is limited in the activities he can perform in his domestic environment. In effect, the plaintiff retains the capacity to contribute around the home but not where tasks involve heavier work, mopping or vacuuming.
73 It appears that the plaintiff and his wife built and, in May 2014, moved into a house on a golf course development. They were assisted in moving heavier items by friends. The plaintiff could not recall what sort of items he had moved, but later agreed he had assisted in moving furniture and the like. He had, he recalled paid for this activity with increased pain and discomfort in the days that followed.
74 Since moving to his new home the plaintiff has worked in the garden. More specifically he has established the front garden area but not the larger back garden area. Apparently, the shoulder condition has necessitated hiring a gardener to complete at least some of this task.
75 At hearing, the plaintiff said the work performed in the front garden had involved paving and concreting. The evidence given in this regard was somewhat vague. Some of the work apparently involved using buckets of mud to glue pieces of slate (crazy pavers) to a concrete path; spreading black bark rather than lawn seed and planting a few native plants (with a little spade). The plaintiff agreed he had to bend to do this work and did what I understood was trowelling work (“but didn’t do a lot of that”[30]). As I understood the evidence, the work took a long time and was done in sections. Because the plaintiff also uses his left hand (for instance, to play cricket or golf, but writes with his dominant right hand), when performing this landscaping work, he said he had used his left hand to carry buckets of mud.
[30] TN 46
76 The plaintiff appeared to prevaricate in response to questions about his intention to participate in planting the back garden once the hired help had completed the concreting and paving works. I was left with the impression that planting and other gardening work probably remains on the plaintiff’s agenda. That said, I have accepted that, whilst the plaintiff retains the capacity to garden generally, the heavier landscaping and gardening work is probably now beyond his capacity.
77 The plaintiff’s disability also places constraints on recreational activities previously enjoyed by the plaintiff.
78 As mentioned, the plaintiff nominated golf as one such activity. As I understood the evidence, the plaintiff’s engagement in this activity had been limited. He had not been a member of a club. He played socially with friends or family and only occasionally, due to work commitments. On the one occasion the plaintiff played golf after sustaining the injury, he said he had not been able to hit the ball properly and found playing too uncomfortable. I think it reasonable to accept that this previously very occasional activity is now lost to the plaintiff.
79 The plaintiff owns a Harley Davidson motorbike and another comparatively powerful road bike, a 1400 cc Kawasaki ZX14. In his final affidavit the plaintiff deposes he was in the process of selling the Harley. The bike gets little use because the handle bars are uncomfortable on his shoulder. The Harley was still unsold at hearing.
80 However, the plaintiff said, weather permitting, he rode the Kawasaki to work and back. Again, the plaintiff appeared to prevaricate before explaining the frequency with which he rode this machine. He estimated he might ride this bike for two or three days and then not ride again for a month because riding this bike also aggravates shoulder pain. Based on this evidence, whilst I accepted there are some restrictions on the plaintiff’s use and enjoyment of this bike, I could not be satisfied as to the extent of these.
81 The disabling effect of pain and impairment and the impact of this on his relationship with his wife is no doubt a source of real frustration for this plaintiff. In a practical sense, however, the plaintiff has probably retained a capacity to function in all of the domains mentioned but must ensure he avoids activities that exacerbate pain and symptoms.
Conclusions
82 The plaintiff’s counsel cited the decision of the Court of Appeal in Kelso v Tatiara Meat Co Pty Ltd which tells us, among other things, that endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.[31]
[31] [2007] VSCA 267 [199]
83 In my view this description is not apt where, as in this case, I could not reconcile the plaintiff’s evidence about the intensity of his pain experience with the medical evidence already summarised and with medical and other evidence as it relates to the disabling effect of pain. This is not to deny the significance to the plaintiff of disability and pain and the likely frustration this causes.
84 In conclusion, I find that as a result of the incident the plaintiff has suffered a permanent aggravation injury to his right upper limb.
85 The impairment consequence of the injury has been broadly summarised above.
86 In this case, the plaintiff has established on balance that he experiences some level of pain on a daily basis. Essentially, the plaintiff makes adjustments in his work routine and day-to-day activities to accommodate restrictions on lifting and working overhead and on swimming longer distances or on riding his motor bike. The impression I formed from the evidence as a whole, was that the sorts of activities the physiotherapist recorded as recently as October 2015, prolonged driving and any attempt to overdo domestic, recreational or landscaping and gardening activities, tends to exacerbate an underlying level of discomfort/pain.
87 I have also accepted the submission to the effect that the plaintiff’s predisposition is to tolerate pain rather than take tablets, where the latter can and has previously caused adverse side-effects. He regularly applies creams or gels to manage symptoms. Otherwise, the plaintiff’s only treatment modality to manage intermittent flare-ups caused by particular activities is to undergo periods of physiotherapy.
88 As mentioned, the test is whether the plaintiff has established that the pain and suffering consequence of injury to his right upper limb 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. As the Court of Appeal has explained, applying this test involves a value judgement in which matters of fact and degree and of impression, all play a role.[32]
[32]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, [41]
89 Based on my analysis of the evidence and having compared this with other cases in the range of possible impairments, I have accepted the defendant’s submission that, objectively speaking, the consequences so described are marked or even significant but not very considerable. In short, I could not be affirmatively satisfied that injury to the plaintiff’s right upper limb was fairly described as serious in its pain and suffering and loss of enjoyment of life consequences for this plaintiff
90 I propose to dismiss the plaintiff’s application for leave under paragraph (a) of the definition of serious injury.
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