Clarke v Glen Eira City Council
[2018] VCC 972
•4 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-00305
| ELISA JANE CLARKE | Plaintiff |
| v | |
| GLEN EIRA CITY COUNCIL | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2018 | |
DATE OF JUDGMENT: | 4 July 2018 | |
CASE MAY BE CITED AS: | Clarke v Glen Eira City Council & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 972 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to both shoulders – identification of injury – credibility of the plaintiff – disentanglement of consequences from other physical injuries and conditions – pain and suffering only – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Moysey v Transport Accident Commission (unreported, VCC, 4 December 1998); Lakic v GB Galvanizing Service Pty Ltd & Ors (unreported, VCC, 23 November 2001); Baltruschaitis v G & K O’Connor Pty Ltd (unreported, VCC, 16 May 2001); Grech v Orica Australia Pty Ltd & Ors (2006) 14 VR 602; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Jurukouski v Windsor Caravans Pty Ltd [2015] VCC 1800; Duckworth v BTR Automotive Drive Train Systems Pty Ltd (unreported, VCC, No. 02233 of 2000, 2 March 2001); Deluca v Pinkney & Transport Accident Commission [2007] VCC 1307; Target Australia Pty Ltd v Moloney [2000] VSCA 124
Judgment: Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Ms C A Kusiak | Robinson Gill |
| For the Defendants | Mr J C Plunkett | Minter Ellison |
HIS HONOUR:
Preliminary
1 Ms Clarke started work with the Glen Eira City Council (“the Council”) in about 2008 or 2009 as a homecare worker. Her job involved cleaning the homes of clients. The work was physical.
2 In the past, she had some minor injuries, but nothing of significance. Her employment background included mainly clerical and office work, but also work in hospitality.
3 In early 2009, she started to feel pain in her right shoulder. This was related to her work duties. She had a period of time off work and then returned to the same duties.
4 In February 2010, the pain in the right shoulder again worsened, apparently after a particular incident involving a vacuum cleaner.[1] She was again off work. Upon her return, she started to experience pain in the left shoulder, as she was using the left arm more to protect the right.
[1]Incident report – Plaintiff’s Court Book (“PCB”) 96
5 Ms Clarke’s employment with the Council was terminated in November 2010. She then did work as a waitress, carer and in hospitality. She is not currently working and receives Centrelink payments.
6 As a result of the injury to her shoulders, she says she has constant pain and is restricted in the use of her arms, particularly at or above shoulder height. She says a range of recreational, social and domestic activities are now lost or impaired.
7 Ms Clarke has also suffered injuries to her knee and back.
8 Ms Clarke is now forty-eight and is right handed and has a teenage daughter. Ms Clarke has been recently homeless, although now has accommodation.
9 This is a “serious injury” application. Leave is sought in respect of pain and suffering only. The body function said to be lost or impaired is the left and right shoulder.
10 Mr Plunkett, for the defendant, identified the issues in the application as:
· The treating and consultant practitioners had not identified with sufficient precision, what injury the plaintiff had suffered to her shoulders in the course of her work (“what is the injury?”);
· The plaintiff’s credibility (“credit”);
· When regard was had to other cases in the range of possible impairments, the consequences to the plaintiff did not meet the “very considerable” test (“range”);
· The plaintiff had other injuries, to her back and knee, and carpel tunnel syndrome, and had not disentangled the consequences of those from the consequences of the claimed injury (“disentanglement”);
· It was not permissible to aggregate the consequences of both the left and right shoulder. Each had to be viewed separately (“aggregation”).
What is the injury?
11 The authorities do not require a precise medical label to be given to an injury. However, it is necessary to identify the body function affected, and the nature of injury sufficient to determine what consequences arise from it.
12 I am satisfied that the injury has been sufficiently identified by the various doctors and that that injury to both shoulders is related to Ms Clarke’s work with the Council.
13 A number of the treating general practitioners have identified the injury to the left and right shoulder as:
· “bilateral supraspinatus tears of both shoulders”;[2]
[2]Dr Jennifer Lindgren, PCB 34
· “tendinopathy in her right shoulder and a full thickness tear of her deltoid bursa in the left shoulder”;[3] and
· “bilateral shoulder pain syndrome secondary to bilateral supraspinatus intrasubstance tears”.[4]
[3]Dr Sadia Shinwari, PCB 38
[4]Dr Ivan Martinez, PCB 43
14 The consultant orthopaedic surgeon, Dr Jennifer Flynn, reviewed the radiology, which reported tears, or partial tears, to the supraspinatus tendon in each shoulder.[5] However, it was her opinion those tears were incidental and did not contribute to Ms Clarke’s symptoms in the shoulders. She noted however, that Ms Clarke had suffered an injury, causing chronic pain to her shoulders associated with the soft tissues surrounding the shoulders.[6] She went on to note that that injury caused difficulty in relation to a range of activities of daily living.
[5]PCB 65-66
[6]PCB 70
15 In the defendant’s camp, Dr Malcolm Brown, occupational physician, described the onset of symptoms, first in the right shoulder, and then the left,[7] and then went on, in his report of August 2010, to describe the right shoulder injury as a “… rotator cuff lesion …” for which work was a significant contributing factor.
[7]Defendant’s Court Book (“DCB”) 5
16 Dr Dominic Yong, occupational physician, described the injury as “bilateral shoulder rotator cuff dysfunction after initial rotator cuff injuries”.[8] He further described bilateral labrum defects, which he said were mild.
[8]DCB 19
17 I am satisfied Ms Clarke suffered a soft tissue injury to the rotator cuff area of both the left and right shoulders. I am satisfied there is radiological evidence of tears, or partial thickness tears, to both left and right shoulders, although the orthopaedic specialist, Dr Flynn, did not think they were significant in respect of Ms Clarke’s symptoms. In any event, I am satisfied that the injuries are related to her employment in relatively heavy cleaning and like duties while she was working for the Council. I am satisfied the description by the various practitioners is sufficient to identify her injury.
Range
18 According to her affidavit, Ms Clarke said that in late 2009, she started to feel a burning sensation in her right shoulder. She had a period off work, although this was due, at least in part, to her need to care for her daughter. When she returned to work in February 2010, there was an incident involving a vacuum cleaner, the pain to the right shoulder became worse and she remained working only for a short time. She went to see her then treating general practitioner, Dr Lindgren, and made a WorkCover claim in July 2010. She had some time off work from February 2010, and when she returned to work, was using her left arm more to compensate for the right shoulder problem, as a result of which she developed pain in the left shoulder.
19 In November 2010, Ms Clarke’s employment with the Council was terminated. I am satisfied from the affidavit of Ms Filomena Perna that the reason for this was that, after an anonymous telephone call, it was discovered Ms Clarke was working at a café in St Kilda without telling her employer, and in breach of a return to work plan.[9]
[9]DCB 1-2
20 After that termination, Ms Clarke did a number of jobs, including as a waitress over a number of months in late 2011 and 2012, as a carer for a housemate and, in 2014, at a cherry farm. At one point, she worked making ice cream, although stopped because of back pain. She moved to Queensland in 2016 and again, did some waitressing. She worked in hospitality briefly in 2016 into 2017. She did some office work while in Queensland. She has not worked since June 2017.
21 Ms Clarke currently sees her general practitioner, Dr Ivan Martinez, once a month or so. She sees an osteopath every two weeks, although admitted in cross-examination, this treatment was not only in relation to her shoulders, but also her back. She uses a form of cream on her shoulders, but also her back. She says she takes occasional Panadeine Forte.
22 As to symptoms, she complains of constant pain in both the right and left shoulder. The pain in her left arm is not as severe as the right. She has difficulty lifting anything to shoulder height and above.
23 To Dr Flynn, Ms Clarke complained of difficulty with –
“… showering, dressing, driving, washing and drying her hair and hanging out washing due to right and left shoulder pain. She is able to undertake mopping, vacuuming and cooking as well as cleaning showers but has modified how she undertakes these activities and undertakes short bursts at a time and spreads them over several days. … Ms Clarke described difficulty lifting with both arms. Her daughter occasionally assists with duties inside the home. She enjoys walking and watching television but previously enjoyed physical activity including yoga, bike riding, hiking and swimming.”[10]
[10]PCB 66
24 Dr Yong noted Ms Clarke had minimal treatment for her shoulders.[11] Although there is reference in the material to her seeing an orthopaedic surgeon, Mr Richard Large, there is no report from that practitioner.
[11]DCB 19
25 Dr Yong thought she had the capacity to perform tasks within the following restrictions:
“● Avoid repeated above shoulder height tasks or reaching duties
● Avoid repeated firm pushing and pulling tasks with either hand.
● Avoid lifting more than 5 kg on a repeated basis.
● Reduction in working hours.”[12]
[12]DCB 21
26 In the course of cross-examination, Ms Clarke accepted that she initially did not seek medical treatment for her right shoulder problem. In fact she attended her doctor on a number of occasions in late 2009 for other unrelated problems, and there is no record of any shoulder complaint. It was put to Ms Clarke that in fact she had hurt her shoulder at home moving furniture in January 2010. She denied this.
27 Ms Clarke admitted that in June 2017, when she returned to Melbourne from Queensland, she drove her car back over four days. It was suggested that this stood in significant contrast to her affidavit[13] that she preferred to drive locally only.
[13]PCB 18
28 According to her affidavits, Ms Clarke says she has constant burning pain in both shoulders. She finds reaching up with either arm painful and lifting of items, particularly heavy ones, difficult. She says it is hard to brush or wash her hair. Household tasks, including cleaning and cooking, are difficult. She says her sleep is disturbed by shoulder pain.
29 Work on a computer is difficult as it aggravates her shoulder pain. She has weakness in both arms and it is difficult to use her hands for fine tasks. She says she can lift her arms above shoulder height, but it increases her pain. She is able to go grocery shopping, but is restricted to lifting lighter items.
Disentanglement
30 I am satisfied Ms Clarke suffered an injury to her back, described by her general practitioner, Dr Sadia Shinwari, as a “lumbar spinal disc prolapse at L4-5”, with some compression causing sciatica.[14]
[14]PCB 38
31 Dr Nayani Jayakody described her back injury as work related with symptoms of significant pain, reduced spinal movement, inability to bend and lift or to sit and stand for long periods. He noted she had poor sleep due to the pain, and required analgesia and physiotherapy.[15]
[15]PCB 40
32 The current treating general practitioner, Dr Martinez, described Ms Clarke as suffering “Chronic cervical and lower back pain syndrome for 8 years secondary to discopathy and spondylosis”.[16] He said this caused a moderate impact upon her activities involving spinal function, such as accessing items over her head or turning her head to look over her shoulder. He noted there had been a variety of treatments for the spinal problem, including pain-relieving medication, physiotherapy and osteopathic treatment. There was a need to continue these treatments over the next several years. He also noted she suffered from chronic depression, including symptoms of depressed mood, hopelessness, worthlessness, insomnia, anxiety, lack of enjoyment and chronic tiredness.[17] He thought her main symptom in terms of pain was the chronic bilateral shoulder pain.
[16]PCB 41
[17]PCB 41-42
33 To Dr Slesenger, Ms Clarke described ongoing lower back pain which affected her ability to stand, sit or walk. He further noted she suffered a knee injury in December 2016 while working in a hotel in Bundaberg and had undergone investigations for this, including scans and x-rays. He further noted right carpal tunnel syndrome. It was his opinion that she was unable to work because of the injuries, not only to her shoulders, but also to her back and right knee.[18]
[18]PCB 53-54
34 Dr Flynn noted that in April 2015, a CT scan of the lumbosacral spine demonstrated an L5-S1 disc protrusion and L4-5 disc bulging.[19]
[19]PCB 67
35 Ms Clarke has also been diagnosed as suffering carpal tunnel syndrome, described by Dr Jayakody as pins and needles, lack of strength, reduced manual dexterity and difficulty with writing and using a computer, related to the right hand.[20]
[20]PCB 39
36 The Medical Panel who assessed Ms Clarke in July 2017 also noted that nerve conduction studies in April 2015 showed mild compression of the median nerve on the right side.
37 In the course of cross-examination, Ms Clarke accepted that the cream she was using to apply to her shoulders she also used for her back. Her back pain also affected her sleeping.
38 Ms Clarke was cross-examined as to the symptoms of pins and needles and the effect that that had upon her capacity to use a keyboard and with finer use of her hands. I am satisfied that that problems with her hands is related to her carpal tunnel condition rather than anything to do with the shoulders.
Credit
39 Mr Plunkett attacked the credibility of the plaintiff. He said:
(i) Despite claiming burning pain in 2009 from her right shoulder, Ms Clarke attended her general practitioner on four separate occasions for unrelated matters, and there is no record of any complaint of shoulder pain.
(ii) In her affidavit, Ms Clarke said that she had complained to someone at work in relation to her shoulder problems in early 2010. It was suggested had suffered an injury to her shoulder while moving furniture at home.
(iii) It was likely Ms Clarke worked at the café in St Kilda more regularly than the three or four days she admitted to. In any event, she did not tell her employer about it, and that was the reason her employment was terminated. Her evidence claiming she had told various people at work was not credible. In any event, the video surveillance of her work shows she was able to undertake tasks without any apparent difficulty.
40 I was unimpressed with Ms Clarke’s answers in cross-examination when questioned about her work at the St Kilda café. I am satisfied that the reason her employment ended was because she had not told the Council she was working at the café. I am unable to say from the evidence whether she worked any more than the three or four days that she claimed, but I am satisfied that she did not notify anyone at the Council of her intention to undertake the work.
41 Video surveillance film of the plaintiff working in the café was taken on a number of dates in September 2010. The plaintiff was shown vigorously wiping down tables, using her right arm. She appeared to do so without any apparent discomfort or restriction. She was then shown (through a glass window) carrying trays of glasses using both arms. Again, she appeared to do so without difficulty. At one point she carried a number of tables a short distance into the restaurant. It is difficult to say how much these tables weighed, although they were relatively small. She then picked up a stack of five plastic chairs and likewise, moved them inside. She carried a number of what appear to be empty cardboard boxes in her right hand for a period.
42 Several days later, she again wiped down tables using her right hand, and carried trays. She carried several large umbrellas into the café using both arms. She also carried sandbags used to hold down the umbrellas which she thought might weigh about 5 kilograms.
43 On 28 September 2010, Ms Clarke was seen carrying out a range of general waitressing duties.
44 From my observation, she was able to carry out all of these tasks without difficulty and in an unrestricted manner. In particular, lifting the heavier objects showed a capacity beyond that which she claimed in the histories to various practitioners and in her affidavits. The activities were inconsistent with her claim of constant burning pain in both shoulders and a restriction in her ability to lift and carry items. I note she was not observed lifting her arms beyond shoulder height.
45 Generally, I find the activities depicted different from her presentation to the Court and to the doctors.
Aggregation
46 A number of the medical practitioners have reported that Ms Clarke gave a history that the pain in her left shoulder came on due to overwork because of her injured right shoulder.[21]
[21]PCB 37, 47
47 She told Dr Slesenger that the pain in her left shoulder was due to the avoidance on the right side.[22] She made separate WorkCover claims for each shoulder.[23]
[22]PCB 51
[23]PCB 80, 82
48 She gave similar histories to Dr Yong of the onset of left shoulder pain as a result of favouring that side.[24]
[24]DCB 13
49 Generally, it is not permissible to aggregate several impairments.[25] The onus is upon the plaintiff to identify the impairment of the body function which is claimed to be the serious injury.
[25]Humphries & Anor v Poljak [1992] 2 VR 129
50 The question is not yet settled, either in this Court or in the Court of Appeal, as to whether bilateral impairments of various parts of the body, including arms, legs and the like, may be aggregated. There have been a number of cases suggesting that an injury to bilateral limbs may be aggregated.[26]
[26]See Moysey v Transport Accident Commission (unreported, VCC, 4 December 1998, Judge Barnett) – knee and ankle; Lakic v GB Galvanizing Service Pty Ltd & Ors (unreported, VCC, 23 November 2001, Judge Gebhardt) – bilateral carpal tunnel; Baltruschaitis v G & K O’Connor Pty Ltd (unreported, VCC, 16 May 2001, Judge Duggan) – carpal tunnel syndrome; Grech v Orica Australia Pty Ltd & Ors (2006) 14 VR 602 – carpal tunnel; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 (Judge Punshon) – carpal tunnel syndrome; Jurukouski v Windsor Caravans Pty Ltd [2015] VCC 1800 (Judge Jordan) – right and left shoulders
51 Other cases have been found against bilateral impairment.[27]
[27]Duckworth v BTR Automotive Drive Train Systems Pty Ltd (unreported, VCC, No. 02233 of 2000, 2 March 2001, Judge Ostrowski) – both hands; Deluca v Pinkney & Transport Accident Commission [2007] VCC 1307 (Judge O’Neill) – left and right knees; Target Australia Pty Ltd v Moloney [2000] VSCA 124 – low back, neck and hip
52 Generally, a Court is confined to assess the consequences of an injury which is sustained in a single event. In this case, Mr Tobin, counsel for the plaintiff, argued that the injuries to both left and right shoulders occurred in the course of the plaintiff’s employment, and therefore constituted the one cause of action.
53 In my view, in this case, it is not necessary to determine whether the right and left shoulder can be aggregated. I am satisfied that the cause of injury to the left shoulder was overuse, favouring that side in order to protect the earlier injured right side. I am satisfied that the injury to the left shoulder was “a consequence” of the injury to the right. It is, in my view, no different for example to a person taking medication for an injury which causes a range of side effects to other parts of the body such as constipation or stomach ulceration.
54 Given this, I am of the view that the consequences of both the left and right shoulder injuries may be considered together, the injury to the left shoulder being a consequence of the injury to the right.
Submissions on behalf of the Plaintiff
55 Mr Tobin submitted that Ms Clarke had chronic pain now over many years. She is a relatively young woman and faces the prospect of ongoing chronic pain into the future. He referred to the consequences to the plaintiff as set forth in her affidavit.[28] Many of these consequences, said Mr Tobin, had not been challenged in cross-examination. He said the plaintiff suffered significant impairments in social, domestic and recreational activities.
[28]PCB 12-13, paragraphs 35-47; PCB 17-18, paragraphs 17-21
Conclusions
56 I am satisfied Ms Clarke suffered an injury to her right shoulder, described above, in the course of her employment with the Council. Subsequently, during the course of her return to work, and because she was favouring that injured shoulder, she developed problems in the left shoulder which may be regarded as a consequence of the original injury.
57 Thus I am satisfied that the injury has been sufficiently identified, and that I may have regard to the consequences of both the left and right shoulders.
58 I am further satisfied Ms Clarke suffered a significant injury to her back which has resulted in pain and a range of restrictions. I am satisfied that the back problem causes ongoing pain and restriction in spinal movement, particularly sitting and standing. It affects her sleep and requires occasional pain-relieving medication, physiotherapy and osteopathic treatment. In fact, there is little difference between the treatment she receives in respect of the injury to her shoulders, and her back.
59 I am further satisfied that she suffers a mild carpal tunnel syndrome to the right hand which causes her symptoms of pins and needles and affects her capacity to use a keyboard and finer movements of her hands. There is also an injury to her knee which occurred in December 2016 which has required investigation, although I do not see this as a substantial issue in the scheme of things.
60 It is necessary therefore to identify and distinguish the consequences from the shoulders, with the consequences from these other injuries.
61 I am satisfied Ms Clarke’s credibility is affected, in particular because of her evidence concerning her work in the café in St Kilda, and the surveillance video taken at that time. Although some considerable time ago now, Ms Clarke has maintained that since late 2009, early 2010, she has suffered constant burning pain in both shoulders. I accept that, in accordance with the evidence of the various doctors, she has some pain in both the left and right shoulders, and that this does affect some activities, in particular those at or above shoulder level. However, I do not accept the situation is as bad as she would have it. Her employment was terminated not because of any injury, but because of her failure to disclose her café work.
62 Ms Clarke has been able to work from time to time since 2010 in a range of areas of employment, some reasonably physical. Her treatment has been modest, conservative and comprises now of seeing her general practitioner each month or so, an osteopath, the use of occasional pain-relieving medication and cream. However, this treatment is as much for her back as it is for her shoulders. I am further not satisfied that the problems with sleep which she claims are as significant as she would have it, and again, in part, relate to her back.
63 I do accept that she would have some difficulty returning to the workforce, in particular activities at or above shoulder height. She has been able to undertake a range of employment, and, at least in 2010, able to work quite freely. Her shoulder injuries did not stop her driving over four days from Queensland to Melbourne last year, despite her claim she only drives short distances.
64 I have reservations about the other consequences she claims in her affidavit. Her capacity to undertake her various domestic tasks, in my assessment, is affected by her back injury and there has not been a sufficient disentanglement of those consequences, of a domestic nature, related only to her shoulder problem. My reservations about her credibility are such that I do not accept the ongoing burning pain in her shoulders is as debilitating as she claims.
65 Bearing in mind all the matters to which I have referred, I am not satisfied that the consequences to her meet the “very considerable” level. Her application should be dismissed.
- - -
0
4
0