Cavkic v Wayne Cleaning Services Pty Ltd
[2016] VCC 1452
•15 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-05036
| RAMIZA CAVKIC | Plaintiff |
| v | |
| WAYNE CLEANING SYSTEMS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 9, 12 and 13 September 2016 | |
DATE OF JUDGMENT: | 15 September 2016 | |
CASE MAY BE CITED AS: | Cavkic v Wayne Cleaning Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1452 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left shoulder – pain and suffering and loss of earning capacity damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Acir v Frosster Pty Ltd [2009] VSC 454
Judgment: Leave is granted to the plaintiff to bring common law proceedings for pain and suffering damages. The plaintiff’s application for pecuniary loss damages is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Meldrum QC with Mr R Forsyth | Patrick Robinson & Co |
| For the Defendant | Mr S Smith | IDP Lawyers |
HIS HONOUR:
1 On or about 22 January 2009, the plaintiff was working as a cleaner. She got her body, and in particular both shoulders, caught in a nasty incident when lift doors closed suddenly. She was in effect sandwiched between the doors. She managed to get into the lift but it lurched and she fell. Her left hand was caught in the space between the handrail and the sidewall of the lift. Her shoulder was wedged in the space as she fell. The left shoulder was severely wrenched as it took a large part of her body weight.[1]
[1]Plaintiff’s Court Book (“PCB”) 11-12
2 She attended her general practitioner, Dr A Castro, on the same day. He noted pain and tenderness. He diagnosed tendonitis and administered a steroid injection.[2] The pain worsened as she worked on for several weeks. The evidence indicates she has suffered left shoulder pain ever since.
[2]PCB 34A
3 Leave is sought for both pain and suffering consequences as well as loss of earning capacity. Before the evidence commenced, the major issue for the Court was said to be loss of earning capacity. Pain and suffering leave was not conceded, although it was said by counsel for the defendant that it was anticipated it would “not be put in issue”.[3] Somewhat surprisingly, at the time of final submissions, the matter was “put in issue” although there was virtually no cross-examination on pain and suffering matters. Nevertheless, I will have to deal with the pain and suffering part of the application for this admitted compensable injury to the left shoulder.[4]
[3]Transcript (“T”) 5
[4]T6
4 For the reasons I will set out, I find she has discharged the onus of proving she suffered a “serious injury” with respect to pain and suffering consequences of the non-dominant left shoulder impairment. I find she has not discharged the onus of proving a permanent 40 per cent or more loss of earning capacity due to the left shoulder impairment.
5 The plaintiff turns seventy-one years of age next February. She has suffered over the years, before and after 22 January 2009, many health problems. These have included a major right shoulder problem that led to surgery on that dominant arm in July 2011. There have also been symptoms from three work-related conditions (“the three conditions”) involving asthma, skin problems and eye symptoms. I will say more about these three conditions later. She underwent lumbar spinal surgery in the 1990s and suffered from other ailments.[5]
[5]PCB 12
6 The plaintiff went off work nineteen days after the lift incident but it was on certificates “unfit for any duties” for the three conditions already mentioned. During that period off work, there is no certification from any doctor with respect to any incapacity from the left shoulder injury.[6] In fact she did not put in any WorkCover claim form with respect to the shoulder until 11 July 2009, some six months after the lift incident.[7]
[6]Defendant’s Court Book (“DCB”) 142-150
[7]DCB 151-152
7 The right shoulder pain became an increasing problem as time went on and it became the major focus of shoulder treatment at the hands of several doctors, including Dr D Middleton and the surgeon, Mr J Clifford. Treatment for the left shoulder has included seven injections. The first was by Dr Castro, three by Dr D Middleton and then three at Victoria House. She has also undergone hydrodilatation. Medication has continued up to the present time for pain relief. She has been referred for specialist treatment, and surgery was clearly discussed and it seems advised at one stage at least.
8 In his most recent report, Dr Castro said only last month that in spite of treatment “… the pain in her left shoulder persisted. Ramiza now suffers from chronic pain ...”. I accept his opinion. While I have had reservations about the plaintiff as a witness, which I will discuss later, in the end I find on the probabilities that she suffers chronic left shoulder pain that is constant and she has suffered it since the lift incident.
9 Constant daily pain has been more than once commented on by appellate courts as an indication of consequences that could be described “... as at least very considerable”.[8] In her case, it has not been susceptible to any successful treatment. While it comes amongst other health problems and symptoms, I accept she has a discrete left shoulder pain that is a very considerable consequence for her. It is a severe pain accompanied by swelling and numbness.[9]
[8]See Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 and other cases
[9]T33
10 As soon as radiology was ordered after the lift incident, significant pathology was discovered. Dr Castro ordered an x-ray and ultrasound on 19 May 2009. Among the findings was a full-thickness tear of the left anterior supraspinatus tendon 1.5-centimetres in size. Left subacromial bursitis was noted with bursal impingement. Possible adhesive capsulitis was also noted. Ultrasound-guided injection treatment was done on the same day.
11 The occupational and rehabilitation specialist, Dr D Middleton, who had been treating her for the three conditions I have already referred to, ordered another ultrasound on 1 September 2009. The pathology was even worse. The findings were a significant full-thickness tear of the mid to posterior supraspinatus, and the tear now measured 21 millimetres wide and 10 millimetres long. There was also fluid in the biceps tendon sheath. Bursitis was now recorded, not just in the subacromial but also in the subdeltoid area. Joint degenerative change was noted.[10] This time she underwent a fluoroscopic-guided left shoulder hydrodilatation.
[10]PCB 87
12 Her treatment since has been conservative and not only at the hands of Dr Middleton but also the orthopaedic surgeon, Mr Clifford. It is ongoing in terms of Dr Castro. It is not necessary to set out the full treatment approach to her pain any further except to say that it largely speaks for itself and has included massage, physiotherapy, seven injection procedures, exercises and medication by way of both tablets and cream.[11] Surgery was also seriously considered.
[11]PCB 14-15
13 There is no point in referring in detail to the medical opinions as to her pain but there is clearly sufficient medical support for her complaints of constant pain. The objective pathology shown at radiology and medical opinions tendered support my finding of her constant left shoulder pain. The treatment part supports my conclusions that she has suffered such pain for a period now approaching seven years and it will continue into the foreseeable future. It can vary in intensity but at times is so severe it is unbearable and makes her cry.[12] This evidence was not contested. I accept it as reliable. It amounts on the probabilities to a very considerable consequence for her.
[12]PCB 15
14 I found the evidence directed to the question of loss of earning capacity quite unsatisfactory. It leads to the need to make some comments about the plaintiff as a witness. It is always a great advantage in these applications to not only hear but to observe a witness over the course of several days both in the witness box and moving around the court. While this is not a case where the plaintiff’s credit was as directly attacked as is often seen in this jurisdiction, her reliability was put in question.
15 Apart from being a lady whose demeanour and appearance was one of frailty and being generally unwell, I found parts of her oral evidence quite hard to follow. It was at times inconsistent and in the end left issues somewhat “up in the air” as to really what she was saying. I will just refer to two examples amongst a number.
16 Her evidence about the decision to not have left shoulder surgery was hard to understand. It appeared to range from Mr Clifford changing his mind, to her having a change of heart, to Mr Clifford not getting back to her at one stage and to WorkCover having some say in whether or not the surgery proceeded. Another example was the extent of her right shoulder symptoms. Just what disability that dominant arm problem caused to her in regards to her work capacity as a cleaner, ability to attend to tasks around home and even personal needs was an area that remained very unclear. It ranged from quite a disabling picture where even knitting, dressing herself and cooking were real problems for her. While on the other hand she was saying she could work as a cleaner with her right arm condition in spite of all the attendant arm demands of professional cleaning.
17 Another aspect was her oral evidence about her dominant arm which included right shoulder swelling and pain over four months prior to the lift incident in January 2009.[13] This was not adequately addressed either in her affidavit or her oral evidence but was really just left as a four-month problem leading up to the lift incident.
[13]T66
18 Accordingly, I did not find the plaintiff was always a reliable witness. Her affidavit evidence is unsatisfactory in a number of areas including her three conditions of asthma, dermatitis and eye symptoms. Her oral evidence was at times confused, inconsistent and hard to follow. In the end the left shoulder pain and suffering consequence I have accepted was driven largely by the uncontested pathology, evidence of very extensive and ongoing treatment including pain medication for this admitted compensable injury, together with some reliance on her complaints of pain. I did find her evidence acceptable with respect to her left shoulder pain.
19 Dealing specifically with the application for loss of earning capacity, there are a number of matters of concern in relation to discharge of onus she carries. I have already made mention of the three pre-existing health conditions that reached a state at the start of 2009 which saw her specialist put her off “any duties” but there are other matters of concern.
20 Firstly, in an affidavit-based jurisdiction in which I need to judge consequences now, there is only one affidavit and it is now over fifteen months old. Sitting in this jurisdiction virtually daily, it is unusual to have no up-to-date affidavit evidence.
21 Secondly, the evidence both on affidavit and oral is unclear, equivocal and at times inconsistent on the topic of earning capacity and its alleged loss.
22 Thirdly, the evidence of the plaintiff about why she went off work, her other health problems, including the condition of her dominant arm, why her claim for the shoulder was lodged almost six months after she was injured just to name a few aspects of the question of capacity for work was unsatisfactory.
23 Fourthly, it became very clear over several days in court that this plaintiff, who claims she cannot work because of the shoulder impairment, is generally a very frail lady. She needed breaks in court and could not proceed at all last Friday afternoon shortly after lunch. I enquired several times, as did counsel for the defendant, about whether she could go on.
24 Fifthly, the evidence did not satisfy me that even if the plaintiff had a pristine unimpaired left shoulder function, that she had any real earning capacity at present.
25 I will deal with a number of matters of evidence where deficiencies and inconsistencies remained at the end of this case. I have already pointed to the onset of left shoulder symptoms reported to her doctor on 22 January 2009 but which had nothing to do with her certificates of incapacity for work that were issued at that time and in the following months.[14] Her evidence as to why the shoulder was not mentioned in the certificates is difficult to follow. It was traversed in the context of why it took some six months before her WorkCover claim for the shoulder was filled out. She seemed to say in cross-examination that somehow it was not until some “report” was received that she could lodge the claim. It then appeared that by “report” she was referring to the WorkCover Claim Form for statutory benefits dated 11 July 2009.[15]
[14]DCB 142-149
[15]DCB 151-152,T52-56
26 Neither counsel really explored who it was that filled out this Claim Form and why a “report” was the explanation for the delay and for months of total incapacity certificates not mentioning the shoulder at all. I asked her myself whose handwriting was on the form. It was not really answered. She questioned whether it was “WorkSafe”.[16] The matter was never clarified. Even after the WorkCover Claim Form was filled out referring to “left upper extremity”, no WorkCover certificate was ever tendered in relation to incapacity for work due to the left shoulder impairment.
[16]T57
27 It is clearly an admitted compensable injury for which some statutory impairment benefit money was paid by the insurer.[17] However, I am not satisfied that of itself takes the matter any further and it certainly does not establish a claim that the left shoulder impairment of itself has caused a permanent loss of earning capacity of 40 per cent or more.
[17]PCB 103
28 On the evidence, the plaintiff has clearly suffered a great deal of dominant right shoulder symptoms and impairment.[18] It was operated on. Evidence of weakness in her right arm was to the extent that to this day it causes her to drop things such as a cup or things from the fridge.[19] She also has numbness over the whole of the right arm.[20] In addition, there is a constant weakness in the right arm.[21] Nevertheless her oral evidence was that she would still be able to work as a professional cleaner in spite of these significant dominant arm problems. There is inconsistency in relation to her dominant right arm symptoms and what she said as to work capacity as a cleaner.
[18]T29-32
[19]T29-30
[20]T34
[21]T34
29 Again, her affidavit is deficient in dealing with this dominant arm in a context of work capacity. It was barely mentioned, and only in one paragraph. That described her still having some restricted movement and on occasions pain but really no more.[22] The picture painted in the affidavit of dominant arm symptoms was, in my opinion, grossly inconsistent with the persisting symptoms she admitted to in cross-examination. Cleaning work is very much manual arm focused. Any relevant right arm problems in regard to work capacity were not even mentioned in the affidavit. In my opinion, it is just not probable that the extent of the right arm symptoms she described in the witness box would not have a detrimental effect on her ability to work as a cleaner.
[22]PCB 13
30 Dealing briefly again with the three conditions, clearly, the plaintiff had suffered these from 2006 onwards. She was first treated in August of that year.[23] By 2008 she needed referral to the specialist, Dr Middleton. It seems he first saw her some time in the January to March period of 2008 but the dates are not spelt out. A wide range of tests and treatments were tried. Through 2008 alone on his report she saw him somewhere between eight to ten times.[24] Her evidence was that these problems caused her to take time off work “… every now and then”.[25] By the start of 2009 it was clearly much more serious as Dr Middleton then put her off as “unfit for any duties” for over five months up to 14 July 2009.[26]
[23]PCB 36
[24]PCB 36-38
[25]T63
[26]DCB 142-150
31 His last report was in July 2013 after he had seen her on 26 June 2013. So he was still treating then for these three conditions. He had been treating her for well over five years up to that time. In that report he described the three conditions as asthma, dermatitis and iritis as “chronic conditions”.[27] I have not heard from this doctor. I have only one report from him. There is no up-to-date report from him. Thus what his current medical opinion would be about these “chronic conditions” in regards to earning capacity and when treatment stopped, if it did, is just speculation. I am not permitted to speculate.
[27]PCB 51
32 When she was pressed in cross-examination about these three conditions, she was asked at one point: “Even if you hadn’t hurt your left arm, the condition of your eyes, your skin and your asthma would have kept you off work from February 2009?” She answered: “Yes, that’s right … .” What the medical situation is with these conditions currently is really unknown. The absence of solid medical opinion on the issue leads me, when judging earning capacity now, to the view that the plaintiff has not discharged the requisite onus.
33 One final comment about the inadequacy of the affidavit evidence needs to be made. With respect to these three conditions which saw her certified as totally incapacitated for any duties for months, there was only one paragraph that dealt with the matter.[28] It is both inaccurate if not misleading. Nothing like the full treatment over the years was described to the reader of that affidavit for what her specialist called “chronic conditions”. Yet really all she swore as to work in this context was in paragraph 17. All she said was: “I continued working, but was placed on modified duties in that I did not touch the recycling bins.”[29]
[28]PCB 13
[29]PCB 13
34 I will not deal in detail with each of the medical opinions. It is not necessary. However, in my opinion, none of them have a full and proper history of the plaintiff’s general health conditions when they comment on her incapacity allegedly attributable to the left shoulder. They are not soundly based on the extent of the three conditions I have discussed. They do not take account of the reasons she was off work for months from virtually the time of the lift incident. Also the relevance of her dominant arm condition and restrictions are not properly addressed. Together with the plaintiff’s unreliability as an historian, I do not accept, without hearing oral evidence from any of these doctors, that their written opinions are based on adequate material.
35 Unlike the question of pain that I have found is a serious consequence and satisfies the pain and suffering test where my conclusion was driven by the uncontested medical evidence, the medical evidence with respect to loss of earning capacity does not overcome the unreliability of the plaintiff’s evidence.
36 Dr Castro, in 2013, indicated that the plaintiff was not fit to work because of her “injuries”.[30] He was clearly referring to more than just the left shoulder. He ended by saying she ceased employment on 10 February 2009 due to ongoing left shoulder pain.[31] This is clearly wrong as she ceased because of the three conditions certified by Dr Middleton.
[30]PCB 32
[31]PCB 33
37 In 2016, Dr Castro said it was chronic pain and depression that led her to not being fit for work. He did not disentangle them. Nor did he comment on the relevance of her “… multiple medical conditions including chronic asthma, chronic allergic dermatitis, hypothyroidism, osteoarthritis of both hands, gastroesophageal reflux and chronic depression”.[32]
[32]PCB 34
38 The last report from Mr Clifford is six years old. It does not assist in judging consequences now. Similarly, a physiotherapy report is six-and-a-half years old and also unhelpful now.[33]
[33]PCB 55 and 57
39 Mr K Myers, general surgeon, is up-to-date and reported in 2016. He has a completely inadequate history in regard to the three conditions which are only referred to virtually in a single sentence. He incorrectly has a history there were no shoulder problems prior to the lift incident. Shoulder disability is impliedly put as the reason she went off work and he has no history of the months of total incapacity certificates from February to July 2009 due to the three conditions.[34]
[34]PCB 72
40 Mr K Brearley, orthopaedic surgeon, also reported in 2016. The past history recorded is in adequate.[35] Nothing like a true picture was given to him of the multiple chronic conditions she has had for years. He also took a history she went off work about two weeks after the lift incident because of increasing shoulder pain. This is incorrect. In any event, he seems to describe it as pain related to both shoulders and not just the left. He recorded she had ongoing pain in both shoulders. There was not sufficient disentanglement to satisfy the requirements of that exercise in relation to impairment of the left shoulder. He did say she was unable to work because of the left shoulder but he also said she was unable to work because of the right shoulder.
[35]PCB 79
41 On examination, in effect the right shoulder was just as bad as the left shoulder and it has to be remembered that the right shoulder is her dominant arm. In the end I am not satisfied that Mr Brearley has turned his mind to all the issues including a proper history of why she went off work such that his opinion should be accepted. Without hearing from him, his report leads me to have sufficient doubt about the basis of his opinions and, as with Mr Myers, I do not accept them.
42 I should say that I do not accept the plaintiff’s submission that the principles in Acir v Frosster Pty Ltd[36] advance the plaintiff’s application for leave. The evidence I have accepted in this case puts the present application on a very different factual basis than the back injury and subsequent cancer in that particular authority.
[36][2009] VSC 454
43 Mr M Dooley, orthopaedic surgeon, reported in 2016 at the request of the defendant. He also had a totally inadequate medical history of this lady with her litany of problems.[37] He was on his own to an extent with respect to his views about symptoms being related to degenerative change but in any event, I do not accept his medical opinion is soundly based on the reasons I have mentioned.
[37]DCB 78
44 I will say something briefly about the paragraph (c) application. The evidence is so lacking that I cannot reach any findings that the plaintiff has any permanent mental or behavioural disorder. The affidavit barely deals with it except for one brief paragraph.[38] The only treatment apparently has been Endep for a short time. There is no reference in the affidavit regarding any psychiatric condition causing any loss of earning capacity. There has been no referral or treatment to a psychologist or a psychiatrist. As I have already said, the topic of any mental or behavioural disorder was not even visited in oral evidence.
[38]PCB16
45 I do not disregard the medico-legal evidence from two psychiatrists that has been put before me: Dr G Wahr and Dr J Douglas. But it does not discharge the onus on the plaintiff of proving a permanent severe mental or behavioural disorder. The histories provided to both are so inadequate they lead me to give little weight to the medical opinions.
46 Just to take one example from Dr Wahr’s report, as to “Past Medical History”, there is nothing at all about the years of treatment and being certified “unfit for any duties” due to the three conditions. All he recorded was that she developed asthma from a powder at work and also had eczema.[39]
[39]PCB39
47 Dr Douglas at least had the benefit of seeing the plaintiff a second time as opposed to Dr Wahr, who only saw her once, six-and-a-half years after the lift incident. Dr Douglas also did not, in my opinion, have an adequate history. In the end, he thought she only had a “Mild Adjustment Disorder”. Of course the adjectival description a doctor gives is in no way determinative of the Court assessing whether or not a permanent severe mental or behavioural disorder exists.
48 Looking at all the evidence in this case, I do not accept that the opinions of the psychiatrists taken together or individually discharge the onus on the plaintiff with respect to proving a paragraph (c) “serious injury”. If I am wrong and such a serious injury has been established, the plaintiff has failed to prove a permanent 40 per cent or more loss of earning capacity attributable to that injury.
49 For the reasons mentioned I grant leave with respect to pain and suffering damages and refuse leave on pecuniary loss damages.
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