Chandler v VWA

[2024] VCC 2051

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-24-02588

Jeffrey Chandler	Plaintiff
v
Victorian Workcover Authority	Defendant

---

JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2024
DATE OF JUDGMENT:	18 December 2024
CASE MAY BE CITED AS:	Chandler v VWA
MEDIUM NEUTRAL CITATION:	[2024] VCC 2051

REASONS FOR JUDGMENT
---

Subject:SERIOUS INJURY APPLICATION

Catchwords:              Serious injury – sub-paragraphs (a) and (c) of the definition of “serious injury” – injury to the left shoulder – adjustment disorder

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013

Cases Cited:

Judgment:                  Application granted under subparagraph (a) only

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Lewis	Gordon Legal
For the Defendant	Mr R Kumar Ms J Clark	Wisewould Mahony

HER HONOUR:

1In his Originating Motion, the plaintiff, Jeffrey Chandler, applied under section 328 of the Workplace Injury Rehabilitation and Compensation Act 2013 for leave to issue common law proceedings for the recovery of damages for pain and suffering only in respect of injuries to the left knee, both shoulders, surgical scarring and severe psychological injury arising from an incident at work on or about 21 June 2018 when he lost his balance and twisted his left knee.

2At the hearing, the plaintiff conceded that that left knee problem has resolved and limited his application under sub-paragraph (a) of the definition of serious injury to the injury to the left shoulder. He maintained his application under paragraph (c) of the definition of serious injury. 

3The defendant submitted that the plaintiff did not complain about the left shoulder until a few months after the incident on the stairs, which he attributes to the compensable left knee injury, and that there is limited medical evidence (from Dr Le Leu and Mr Saxby) supporting the link between the fall and the preceding knee injury. It was submitted that this evidence should not be accepted in the light of the contemporaneous records which do not mention complaints of left shoulder pain.

4The defendant further submitted that there is no evidence that Mr Chandler’s injury is unlikely to improve, given the opinion of Ms Lyons in late November this year[1] that the recent Ketamine infusion, which was designed to establish appropriate dosage, had a “good effect” on Mr Chandler’s pain, although these improvements have worn off over time.[2] It was submitted that there is no evidence that further Ketamine infusions will not provide further benefits over time, nor that Mr Chandler will be unable to engage in reconditioning to increase his physical strength, mobility and function. For this reason, the defendant submitted that the plaintiff has not established the permanence of his impairment.

[1] Further Amended Plaintiff’s Court Book (‘PCB’) 186.

[2] PCB 186.

5In relation to the application under sub-paragraph (c) of the definition of serious injury, the defendant says that whilst the plaintiff meets the diagnosis of Adjustment Disorder, he is not having any treatment for his symptoms and Dr Serry concluded that he would be “somewhat restricted” by his condition in performing various activities to a “not insignificant extent”, [3] that his prognosis is guarded and dependent on the course of his physical symptoms. It was submitted that the plaintiff has not established that the psychological sequelae of his injury are more than significant, to the extent of being severe.

[3] PCB 161.

PLAINTIFF’S EVIDENCE

6Mr Chandler swore two affidavits in support of his application, on 14 October 2024[4] and 24 November 2024.[5] 

[4] PCB 19.

[5] PCB 6.

7He was born in Western Australia and is 67 years old. He had a happy childhood and is the oldest of five siblings. After leaving school in year 10, he worked in a variety of labouring roles. He has three adult children with his ex-wife and an 18 year-old grandson.

8In 1989, he moved to Victoria where he worked in similar labouring roles before becoming the manager of a roller skating centre. He has been in a relationship with his partner, Adriana, for more than 30 years. She has a son and a 5 year-old grandson.

9Over the years before suffering the injuries the subject of this application, Mr Chandler, who is right-handed, had problems with his elbow, shoulders, left knee (requiring arthroscopy)  and low back, but none of these conditions had a long term impact on his ability to work or live his life to the full. He was prescribed antidepressants for a brief period but could not recall the circumstances. 

10He started working for Drysdale Home Timber and Hardware at their hardware store in 2016. At the time of the incident, he was working both as a yard and sales person, two to four days per week, and at the roller skating centre a two or so days per week. His duties at the hardware store involved heavy lifting, loading of goods, making deliveries and forklift and truck driving.

11On 21 June 2018, he was loading timber onto racking and lost his balance, twisting his left knee. He immediately felt a sharp pain. He kept working but over the next few weeks had symptoms including swelling. Radiological investigations of the left knee in August 2018 diagnosed a torn meniscus.

12On 10 September 2018, he ceased work duties both at the hardware store and roller skate centre on account of left knee pain. In October, he underwent an MRI scan and was given an interarticular steroid injection. He also commenced physiotherapy.

13On 16 October 2018, Mr Chandler was at home descending the stairs when his left knee collapsed. He twisted and wrenched both shoulders while trying to catch  himself on the banister. His left shoulder and arm also hit the timber of the stairs with force. He felt pain in both shoulders, more severely in the right than the left.

14In January 2019, a right shoulder ultrasound identified tearing and tendinopathy and Mr Chandler had a steroid injection to the right shoulder and on 12 October 2020 he had a right suprascapular nerve block.

15The left shoulder has required more extensive treatment. An ultrasound in February 2019 identified tears and bursitis. Over the next three years, he underwent several steroid injections,[6] CT guided hydro dilatations,[7] left shoulder arthroscopy, surgical subacromial decompression,[8] left suprascapular nerve blocks,[9] radio frequency ablation, physiotherapy and pain management.

[6]In February, May and September of 2019

[7] In December 2019, August 2020

[8] In March 2020.

[9] In March 2021 and June 2022.

16From early 2020, he was put on antidepressant medication due to deteriorating mental health, which he attributes to his physical limitations. He has seen a psychiatrist, Dr Rao.

17He first stopped work on 10 September 2018, and has never returned to his role at the roller skating centre. He made several attempts to return to work at the hardware store but was unable to manage his pre-injury duties, and he ceased working altogether in early 2020. His employment at the hardware store was terminated on 19 January 2022.

18As at 14 October 2024, Mr Chandler stated that he was still attending pain management sessions for his left shoulder as well as doing daily exercises at home. He had tried doing work in the gym and in the pool to improve his left shoulder problems, and was taking Palexia and Nortriptline daily and Panadol as required.

19He stated that his left shoulder pain was constant, although its intensity varied with activities. His sleep was regularly disrupted by left shoulder pain. He was regularly experiencing pins and needles in his left arm. He was limiting his driving to short trips.

20His domestic activities were restricted by left shoulder pain, and he had trouble making the bed, hanging out the washing and vacuuming. He was unable to garden and had employed a gardener instead. The biggest loss to him in terms of his pre-injury recreational activities has been his inability to continue playing lawn bowls. Before his left shoulder injury, he practised daily and played multiple games per week at a very high level, including in State competition. He has been devastated at no longer having the physical capacity to play lawn bowls due to his left shoulder injury.

21As a result of his left shoulder injury he walks his dogs for less time and is less able to physically interact with his grandson. His relationship with his partner has been strained. They separated for a while but are now living together, although they are sleeping in separate rooms and no longer having intimate relations. Mr Chandler had planned after retirement to buy a motor home and drive around Australia but this is no longer feasible for him.

22The plaintiff stated that he was spending a lot of time inside his bedroom, isolating himself from others, feeling anxious, depressed and lacking energy. He had withdrawn from social events, struggled to enjoy himself and had low self-esteem. He was at one stage “in a particularly dark place”. He has poor concentration and felt angry, frustrated and irritable about his situation.

23As at 24 November 2024, Mr Chandler stated that he has undergone further treatment to his left shoulder including a suprascapular nerve pulsed radio frequency of left suprascapular nerve in May 2024 and a Ketamine infusion in September 2024. He has continued to undertake home exercises as part of his pain management and been recommended further hydrotherapy and physiotherapy following the Ketamine infusion.

24He is currently taking Celebrex on a daily basis and Pantoprazole because of reflux from the Celebrex. He takes up to six Panadol Osteo a day and also Nortriptyline daily. He is no longer taking Palexia.

25Although his left knee and right shoulder conditions have largely resolved, he has remained off work due to left shoulder pain. He stated that his left shoulder has deteriorated and whilst the Ketamine infusion improved his pain for a few weeks, the pre-infusion pain levels are returning and he has been told he will require another Ketamine infusion in the future.

26He is still limited to driving shorter trips and whilst his sleep improved when the Ketamine was effective, regular sleep disruption has returned. His relationship with Adriana has improved slightly but they still sleep in separate beds and do not have sexual relations. His social, recreational and domestic activities are largely unchanged since his previous affidavit. His low mood has not improved and he continues to feel anxious and depressed, lacks energy and motivation, suffers from poor concentration and is overwhelmed by little things.

27At the hearing, the plaintiff said that since the Ketamine infusion, his left shoulder pain has increased to its pre-infusion level. He has been having hydrotherapy and physiotherapy.

28In cross-examination, he said that he had started playing lawn bowls in around 2006 or 2007 because he could no longer play golf after his elbow injury in 2003.

29He agreed that his gardening activities were limited between 2002 and 2003 by his right elbow problem but said that although he now has raised beds, he does not garden because it aggravates his left shoulder pain. He agreed that his lawn bowling was also affected by his left knee and right shoulder problems. He said that he tried to play lawn bowls, including competitive bowls, a few times in 2020 or 2021 but found he could not manage to play. He manned the scoreboard instead. He said that playing requires him to put his left hand on his left knee and he cannot perform that movement because of his left shoulder pain and restriction. He said that doctors have told him he may at best get back to practising lawn bowls in the future.

30He conceded that his medical history revealed a diagnosis of major depression in 2004 but could not explain why he omitted this detail in the history he gave to psychiatrist Dr Serry in August 2024. He said he had been seeing a psychologist two years ago as part of his pain management program, had received a diagnosis of Adjustment Disorder, and saw a psychiatrist once in mid-2022.[10] He  now manages his condition by remaining isolated.

[10] See T44 L12-21.

31He said that after the fall on the stairs he had pain in both shoulders but it was worse on the right shoulder and so he concentrated on the right shoulder and the swelling in the left knee. However the left shoulder pain worsened over time. He was taken to a number of clinical records of consultations where only the right shoulder was referred to but said that he believed he would have mentioned his left shoulder soreness to a number of practitioners after the fall on the stairs. He agreed that the Ketamine infusion gave him some relief from left shoulder pain but said that its effect has worn off and he is now waking every hour or so at night with pain.

Reports of treating doctors

Dr Grant Chapman - general practitioner

32Dr Chapman’s reports dated 14 September 2020[11] and 20 July 2023[12] noted that the plaintiff’s left shoulder injury did not respond to physiotherapy, steroid injections or hydrodilatations and that his condition was permanent and future treatment would revolve around management of his chronic pain with physiotherapy and counselling.

Dr Leighton Delmenico – general practitioner

[11] PCB 66.

[12] PCB 69.

33Dr Delmenico’s report dated 15 August 2024[13] confirmed that Mr Chandler’s current treatment for the left shoulder included regular paracetamol, nortriptyline and celecoxib. He suggested repeated radiofrequency ablation, a trial of Ketamine infusion, and intermittent opioid medications as possible treatments if approved by  the treating pain specialist considered them appropriate. He considered the plaintiff’s prognosis to be “guarded with ongoing chronic left shoulder pain and loss of function resulting in significant depressive symptoms and ongoing incapacity”.  In a follow up letter dated 2 October 2024,[14] Dr Delmenico noted that Mr Chandler had an excellent response to a recent Ketamine infusion and recommended a course of hydrotherapy.

Dr Jacquelyn Nash – pain medicine physician

[13] PCB 71.

[14] PCB 74

34Dr Nash provided a report on 21 December 2020[15] which diagnosed Mr Chandler with a chronic pain condition in the right shoulder that had not yet stabilised. He was not capable of pre-injury or general employment at the time of the report, and required medical treatment as well as pain management. In a follow up letter dated 20 October 2022,[16] Dr Nash acknowledge the diagnosis of Adjustment Disorder and recommended ongoing psychological treatment.  

Dr Yang Ng – pain medicine physician

[15] PCB 76

[16] PCB 79.

35Dr Ng sought approval from the insurers for a Ketamine infusion in July and August  2024[17] on the basis that this would facilitate a “reduction in opioid dose, treat central sensitization, facilitate a multidisciplinary approach to ongoing management and facilitate improved quality-of-life”.[18] The first application of Ketamine was to be used to determine the plaintiff’s dose tolerance and subsequent infusions would commence at the ideal dose.  

Mr Kevin Eng – orthopaedic surgeon

[17] PCB 81 and 83.

[18] PCB 81.

36Mr Eng noted in letters to Dr Chapman during 2020 that 18 months of treatment had been unsuccessful, and he recommended a left shoulder arthroscopy.[19]

[19] PCB 163 - 166

37Mr Eng performed[20] a left shoulder subacromial decompression & AC debridement in March 2020. Mr Eng found irreparable damage to bursal side of the supraspinatus caused by the AC joint osteophyte, as well as areas of chondral loss or arthritis around his humeral head. He considered that the plaintiff would likely experience ongoing symptoms and he recommended physiotherapy and hydrodilatation.

[20] PCB 167 – 169.

38In August 2020,[21] Mr Eng diagnosed Mr Chandler with a postoperative frozen left shoulder and recommended further hydrodilatation (which had previously provided temporary relief). However, Mr Eng expressed pessimism about the plaintiff’s prognosis because his left shoulder was resistant to treatment. He repeated this conclusion in October 2020[22] when he noted that there has only been mild improvement of the left shoulder and a full recovery is unlikely. At that time, he considered that the plaintiff had to accept his situation and continue with a pain  management plan. Mr Eng was uncertain whether the plaintiff would return to work.

[21] PCB 171 – 172.

[22] PCB 174.

Reports of treating physiotherapists

Mr Steven Yates

39Mr Yates provided several letters about Mr Chandler’s progress over the course of 2018 to 2020.[23] He concluded that while the left knee and right shoulder had responded well to treatment, improvement in the left shoulder had plateaued. He recommended hydrodilatation of the left shoulder. 

Ms Kate Lyons

[23] PCB 176-185.

40Ms Lyons[24] currently sees the plaintiff twice per week to improve the range of motion and strength in his left shoulder. She noted that progress has been “incredibly slow going due to years of deconditioning and stiffness around the shoulder”.[25] She noted that the pain relief he obtained from the first Ketamine infusion only lasted a few weeks, and that even on Ketamine, he suffered considerable pain during his sessions with her, so much so that the extent and pace of the activities had to be modified. She noted he had significant deficits in the range of motion, strength and function of the left shoulder which were likely to be permanent. She concluded that due to his chronic left shoulder it is likely he will never full recover and will suffer lifelong left shoulder pain.

[24] PCB 186.

[25] PCB 186.

Medico-legal reports

Dr Terry Saxby – orthopaedic surgeon

41Dr Saxby reported on 11 January 2019[26] that Mr Chandler had suffered a degenerate tear of his left medial meniscus associated with trauma which had been surgically treated. He noted the plaintiff’s complaint of pain in both shoulders, following the fall, and diagnosed a possible right rotator cuff tear. He noted that the plaintiff told him his left and right shoulder pain followed his left knee giving way on him on the stairs. He concluded that it “would appear there is a relationship between his work related left knee injury and his right shoulder injury.”[27] He recommended continuing physiotherapy and medication where required, and undertaking a return-to-work program.

Dr Leon Le Leu – occupational physician

[26] PCB 85

[27] PCB 89.

42Dr Le Leu reported on 4 May 2021[28] that the plaintiff’s meniscal tear of the left knee and possible tear of the right rotator cuff had resolved. However, he noted that symptoms had persisted in the left shoulder, where the plaintiff had partial thickness tears with bursitis. He considered that the injuries to the left and right shoulders were directly related to his work-related knee injury. He considered that the plaintiff was not fit for his pre-injury employment but was capable of working full-time in a standing or sedentary job.  

Dr David Fish- occupational physician

[28] PCB 95.

43Dr Fish performed an impairment assessment of the plaintiff and reported on 28 September 2021[29] that Mr Chandler suffered from a surgically treated and now resolved medial meniscus tear of the left knee, a mild right shoulder dysfunction and a surgically treated but persistent left shoulder problem.

Mr Graeme Brown- orthopaedic surgeon

[29] PCB 114.

44Mr Brown examined the plaintiff and reported on 27 February 2024[30] that in the right shoulder there was a rotator cuff tendinopathy with a small full-thickness tear of the rotator cuff but confirmed that the pain had settled with treatment. He found that the left shoulder presented with adhesive capsulitis and diagnosed Mr Chandler with chronic left shoulder pain. Whilst concluding that there was no functional component to the plaintiff’s symptoms, he considered that the adverse psychological reaction suffered by the plaintiff to his physical injuries had contributed to his experience of pain and reduced range of movement. He repeated these conclusions in his supplementary report dated 18 September 2024.[31]  

Mr Russell Miller – orthopaedic surgeon

[30] PCB 130.

[31] PCB 142.

45Mr Miller reported on 3 July 2024[32] that Mr Chandler’s left shoulder symptoms are attributed to “persisting problems with capsulitis, rotator cuff dysfunction and evolving arthritic disease in the glenohumeral joint.”[33] He noted that the left shoulder has significant functional limitations and he considered that the prognosis is poor.

[32] PCB 143

[33] PCB 148.

46He concluded that the work injury to the left knee was the background to the fall in October 2018 which aggravated pre-existing but asymptomatic degenerative changes in the left shoulder, but also probably caused a further injury to the left shoulder. He considered it unlikely that the plaintiff would be able to return to work. He considered that the condition of the left shoulder has stabilised but that there is a moderate risk of long-term deterioration.

Dr Martin van der Linden – psychiatrist

47Dr van der Linder conducted an independent psychiatric medical examination on 31 August 2022.[34] He diagnosed Mr Chandler as suffering from an Adjustment Disorder with Depressed and Anxious Mood (chronic). He concluded that Mr Chandler did not have capacity to return to pre-injury nor modified duties, but was unsure whether this was permanent or whether capacity for suitable employment was a future possibility.

Dr Nathan Serry-psychiatrist

[34] PCB 124.

48Dr Serry assessed Mr Chandler and found on 22 August 2024[35] that he has developed a chronic adjustment disorder with anxious and depressed mood. He concluded that this condition was “inextricably linked” with his ongoing pain and functional limitations of the left shoulder.[36] Unless there is substantial change of the physical symptoms, Dr Serry warned that  it is unlikely there will be any significant progress of Mr Chandler’s psychiatric condition.

[35] PCB 153

[36] PCB 161.

FINDINGS AND REASONS

Application under sub-paragraph (a)

49I found Mr Chandler to be a straightforward witness, who willingly conceded at times that clinical notes might accurately reflect the state of affairs at the time of the consultations better than his recollection. Notwithstanding those concessions, he was at pains to emphasise that he suffered pain in both shoulders at the time of the fall, and was insistent that he had told doctors this. He said that his right shoulder and knee pain were the more serious source of his pain in the weeks after the fall, but that his left shoulder continued to worsen thereafter. I note that his complaints of left shoulder pain are reflected in the doctor’s notes some two months after the fall. I note that Dr Saxby, Mr Miller and Dr Le Leu each considered that there was, or at least appeared to be a causal connection between the knee injury, the fall on the stairs and the resultant permanent left shoulder pain and symptomatology. I am satisfied that the left shoulder impairment is causally related to the work injury to the left knee.

50He has had extensive treatment to the left shoulder (which is outlined above at paragraph 15) with no lasting improvement. I note that Mr Miller opined that the plaintiff’s left shoulder condition has stabilised. He and Dr Brown confirmed that the plaintiff suffers from chronic left shoulder pain due to capsulitis and rotator cuff disfunction, as well as evolving arthritic disease and that he is severely functionally impacted by his left shoulder condition.

51In the light of these surgical opinions and Ms Lyons recent opinion that the benefits of the Ketamine infusion have been short lived and have not permitted him to make any improvements in the functioning of his left shoulder, I am satisfied that the plaintiff’s impairment is long term or permanent.

52I accept without reservation Mr Chandler’s account of the pain and suffering consequences of his left shoulder impairment, which is outlined above at paragraphs 17-29. Each day he takes prescription medication (Celebrex and Nortriptiline)  for his left shoulder pain as well as 6 Panadol Osteo tablets. In spite of this medication, his left shoulder pain disturbs his sleep considerably each night. He is restricted in domestic and outdoor activities. He is very distressed at no longer being able to play bowls at all, let alone competitively as he did in the past, due to his left shoulder problems. He walks his dogs less, plays less with his grandson, and has stopped being intimate with his partner. He can no longer drive long distances and will not be able to buy a motor home and drive around the country as he had planned. 

53In all the circumstances, I am satisfied that the pain and suffering consequences of the long-term impairment of the left shoulder are more than considerable when compared with other cases in the range of permanent impairments of a body function.

Application under sub-paragraph (c)

54The material in support of this limb of the application is very limited. I accept the diagnoses of Adjustment Disorder made by Dr van der Linden and Dr Serry in 2022 and 2024 respectively. I accept Dr Serry’s conclusion that Mr Chandler’s psychological condition will depend on the course of his physical pain and restrictions.   

55I accept Mr Chandler’s account of the psychological symptoms he suffers, in particular his withdrawal from social activities and the difficulties in his relationship with his partner. However, I am not satisfied, on the material before me, that the pain and suffering consequences of his psychiatric impairment meet the narrative test for serious injury.

CONCLUSION

56Leave is granted to the plaintiff to issue proceedings for pain and suffering damages in respect of the injury to the left shoulder suffered as a result of the compensable left knee injury.

57I reserve the question of costs.