Cleary v Portland District Health

[2011] VCC 544

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT WARRNAMBOOL
CIVIL DIVISION
DAMAGES & COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-10-01997

Kerry Cleary	Plaintiff
v
Portland District Health	First Defendant
&
CGU Workers Compensation	Second Defendant
JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Warrnambool
DATE OF HEARING:	28 April, 29 April and 2 May 2011
DATE OF JUDGMENT:	12 May 2011
CASE MAY BE CITED AS:	Cleary v Portland District Health & Anor
MEDIUM NEUTRAL	[2011] VCC 544
CITATION:

REASONS FOR JUDGMENT

Catchwords: Application for leave under s134AB Accident Compensation Act 1985 for the recovery of damages for pain and suffering in relation to injury to right shoulder- whether serious injury sustained under definition in s.134AB(37)(a)- application for leave for the recovery of damages for both pain and suffering and economic loss in relation to psychiatric condition- whether serious injury under 134AB(37)(c)

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N. Bird with him	Stringer Clark
Mr I. Fehring
For the Defendant	Mr P. Scanlon QC with him	Lander & Rogers
Mr P. Jens

Background

1          The plaintiff was born on 23 September 1951 and is now aged 59. She was born and raised in Portland and attended Portland High School until halfway through Year 10. She thereafter worked in a number of jobs, mainly as a nursing aide.

2          After having her family (the plaintiff is a married woman with four grown up children), the plaintiff commenced employment at the Richardson Street Nursing Home as a State enrolled Nurse where she worked for six years. During that time she contracted fibromyalgia as a result of lifting a patient. Despite this, she returned to the workforce as a nanny for 8 years.

3          In March 2000, the plaintiff commenced work for the defendant as a Division 2 nurse and had no time off for the next five years. Against her wishes, she was subsequently rostered in the geriatric section of the hospital known as the Seymour Cundy unit. In early July 2005, the plaintiff claims that she was attempting to help an elderly patient in the Seymour Cundy unit when he lost his balance and started to fall. The plaintiff who was on her own, tried to stop him and suddenly felt a “burning sensation” in her right shoulder. She took his whole weight on her right shoulder.

4          In July 2005 the plaintiff also came into contact with a family of an elderly lady who was extremely ill. The plaintiff says that this family was abusive, nasty and insulting to her. After a couple of weeks of abuse, she started getting chest pains and found herself crying. The plaintiff swapped some shifts in order to get some relief from this abuse and when she returned, she was upset the moment she set foot in the door. Shortly after one particular shift, the plaintiff was crying uncontrollably and her colleagues called a social worker who walked her out of the hospital. The plaintiff thereupon ceased work and has not worked at the hospital since.

5 The plaintiff seeks leave to bring proceedings for the recovery of damages pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”) in respect of two separate injuries.

6 Firstly, Mr Bird, who appeared for the plaintiff with Mr Fehring, submitted that the plaintiff was relying on subparagraph (a) of the definition of “serious injury,” within the meaning of s.134AB(37) of the Act, and claimed that the plaintiff had suffered a right shoulder injury which has resulted in permanent serious impairment or loss of body function to the right shoulder.

7 Mr Bird also separately relied on the definition of “serious injury” within the meaning of s.134AB(37)(c) of the Act in claiming that the plaintiff suffers from a permanent severe mental or permanent severe behavioural disturbance or disorder.

8          The plaintiff sought leave to bring proceedings in respect of damages for pain and suffering only in regards to the physical injury; and both pain and suffering and loss of earning capacity in regards to the psychiatric injury.

Issues

9          Mr Scanlon QC, who appeared for the defendant with Mr Jens, emphasized that the injuries needed to be examined separately. He defined the physical injury as an aggravation of the fibromyalgia. He accepted that the plaintiff had suffered a compensable injury but submitted that it did not meet the statutory test.

10 Mr Scanlon also submitted that the plaintiff had not established that the psychiatric injury was “severe” within the meaning of the Act, particularly having regard to the fact that the plaintiff was not taking psychotic medication nor receiving psychiatric treatment.

Evidence

Plaintiff’s Evidence

11        The plaintiff swore two affidavits: of 11 December 2009 and 18 April 2011. She also gave evidence, and was cross examined.

12        No other witnesses were called.

13        It is helpful to try to separate out the evidence insofar as it relates to each injury

Physical injury

14        In the first affidavit, the plaintiff claims:

• that she has been limited in activities involving the right shoulder; even turning to pick something up off the back seat of a car is difficult;

• that she suffers from pain “all the time.” It is bearable but can be aggravated easily if she is not careful;

• she finds housework very difficult, and relies on her husband to do most of it;

• she has difficulty sleeping on her right shoulder;

• there is not “an hour in the day” that she is not affected in some way or another by this condition.

15        In her supplementary affidavit she says:

• That she takes Panamax and Panadol Osteo when needed usually 4 or 5 days a week;

• that she continues to have pain in the shoulder all the time. It is usually a nagging pain which flares up at least a couple of times a week and often stays for a couple of hours;

• the plaintiff could not return to performing the duties of a Division 2 nurse doing things like dressing, showering, toileting and feeding patients;

• she needs help from an employee to wheel the supermarket trolley when shopping;

• she still has awful problems with sleep;

• she continues to get her husband to do the heavy housework and has difficulty with small daily things like washing her hair and cutting hard vegetables.

16        Under cross examination, she:

• accepted she had sought and obtained compensation for fibromyalgia but said that the shoulder pain was now “different”;

• agreed that her shoulder improved after surgery;

• said that she now had physiotherapy (it had stopped for awhile) and massage;

• agreed that she could drive, undertake her craft work, and knit;

• accepted that her right arm appeared to swing normally on the dvd surveillance;

• agreed that she had had fibromyalgia and bad knees but never took any days off with these conditions.

17        Under re-examination, she explained that the reason the DVD surveillance showed an employee wheeling the trolley at the supermarket was because the trolley was too heavy for her to push. She also explained that the shoulder pain was “different” because it “burnt.”

18        She also claimed that if she did not have the shoulder or the depression she would be nursing (of which she was “very proud”).

19        The plaintiff’s account was generally corroborated by an affidavit of her daughter, Ms Angela Cleary, of 28 April in which she stated that her mother’s previous aches and pains did not interfere with her work or personal life but that, since ceasing work, she is restricted in the use of her right arm and shoulder.

Psychiatric condition

20        In regards to the psychiatric condition, in her first affidavit the plaintiff claims:

• she has difficulty sleeping;

• she has difficulty doing housework;

• that she frequently has panic attacks and stays at home most of the time; being tired and uninterested in most things and not wanting to come into contact with other people;

• she agrees with the remarks in a report dated 27 July 2007 of Dr Epstein wherein he noted that she was “restless, frustrated, irritable, exhausted, agitated, unmotivated and unsociable;”

• she is also very sad she is not nursing.

21        In her supplementary affidavit she claims that:

• she often cries for no reason and has anxiety;

• she has difficulty with memory and holding a conversation;

• she has little interest in everyday things like cooking and television;

• she misses her work at the hospital.

22        Under cross examination;

• the plaintiff accepted that she was capable of nannying work with children of friends or family or people that she knew well in the Portland area. Accordingly she had capacity for some employment;

• she had previously been on antidepressants prior to 2005, which did not “agree with” her but was not on any antidepressants now;

• she had undertaken some craft work; making 4 christening gowns; and selling craft items at the market;

• she agreed that she did not see her treating psychologist between September 2009 and February 2011 (ultimately conceding that she was not suggesting she could not pay for it);

• the plaintiff said she was only taking rescue remedy drops from the naturopath, Ms Randall (who verifies this in a report of 15 March 2011).

23        The plaintiff also agreed that she had been able to go on various trips to China, Fiji, the Kimberleys and North Queensland, as follows:

• A recent 3 week guided bus tour of China (she only returned in March). She was on the trip with a group of 18 women whom she met in Port Fairy after seeing an advertisement about the trip in the paper. She met with them only once in person before the trip, and managed the trip without any anti depressants (but with drops);

• Fiji in 2008. She was on the trip with a singing group, which she also joined after seeing it advertised in her craft magazine. She did not meet with them prior to the trip, and travelled on her own to get there;

• around the Kimberleys area in May last year- on a driving holiday with her husband and a group for around three months. However she never undertook the driving (and her shoulder hurt);

• to far North Queensland.

24        Under re-examination she said:

• She no longer sat with her Vietnam Vet husband at the “front” at Anzac functions;

• explained that she managed the trip to China because the people were strangers and did not know who she was;

• explained how she had difficulty “settling” to things in her sewing room.

25        In the affidavit of Ms Angela Cleary, she describes her mother’s reduction in enjoyment out of life and says that she misses her work and contact with people.

26        The plaintiff was generally a sympathetic witness, although she was at times unresponsive and emotional. This may be explicable on the basis of her psychological problems. However, it is important to consider her evidence in the light of all of the evidence, including her objective conduct.

Principles

27        In terms of the physical injury, the plaintiff must show that the consequences to her of any impairment, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked, and as being at least very considerable.[1]

[1] See s134AB(38)(c) of the Act; Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33.

28 In terms of establishing a serious injury pursuant to s134AB(37)(c), the plaintiff must establish a permanent “severe” mental or permanent “severe” behavioural disturbance or disorder. In so doing, the consequences must be, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.[2]

Physical Injury

Nature and Extent of the Injury

[2] S134AB(38)(d); and see Mobilio v Balliotis [1998] 3 VR 833

29        Most of the doctors in the case supported both the existence of an injury and that it occurred in the course of employment, consistent with the proper concession of the defendant.

30        An ultrasound of 4 November 2005 comments that changes in the supraspinatus suggest a differential diagnosis of either an old healed partial tear or calcific tendonitis.

31        Mr Byrne, treating orthopaedic surgeon, completed three reports. In his first report of 1 February 2006, he states that the plaintiff required a right shoulder arthroscopy, decompression and cuff repair. In his report of 14 February 2006, he described grade 1 articular damage. Further, a labral tear which was anterior and inferior and was essentially a “parrot beak tear.” Also, “examination of the rotator cuff revealed a tear….A tear involving supraspinatus was identified…” In his final report of 16 February 2007, he concludes that the plaintiff had a “significant injury to her right shoulder as a result of the previously described work cover injury.” However it had “improved significantly” at that time.

32        Dr Garde, the treating general practitioner, completed 5 reports. In her first report dated 6 December 2005, she cites the ultrasound which she said “confirms” the presence of a rotator cuff injury. This was consistent with both her symptoms and the mechanism of injury. She had “little doubt” that the injury to the shoulder was caused by the incident described at work. She also notes that the pain was “different” to the pain the plaintiff had experienced in the past with her fibromyalgia.

33        In her most recent report of 23 December 2010, Dr Garde reports a diagnosis of a supraspinatus tendon injury related to the falling incident at work. Further that the injury had been treated surgically and the plaintiff still receives physiotherapy. “She has been advised that she should never return to nursing as the duties are too arduous for her shoulder injury to tolerate.”

34        Mr Kudelka, orthopaedic surgeon, completed three medico-legal reports. In his most recent report of 13 July 2006, he describes the plaintiff’s current condition as pain, weakness and restricted movement of the right shoulder. She is right hand dominant (a matter verified by the plaintiff in giving evidence). Her condition has not improved significantly since her reported significant injury at work on 5 July 2005. Further he described her condition as materially contributed by an “aggravation of pre-existing degenerative changes” although he accepts that the report of Dr Byrne gives the most detail about the “torn muscle in the right shoulder which he repaired.” He opines that the plaintiff was not fit for full pre-injury duties as she could not use her right arm normally as required for full nursing duties.

35        Mr Scott, senior consultant surgeon, completed a medico legal report of 16 November, 2007. He reported that the plaintiff suffers from a right shoulder rotator cuff lesion “significantly aggravated” on 5 July 2005. He opines that the plaintiff is unfit to return to unrestricted nursing duties and give a “poor” prognosis

36        Mr Kierce completed a medico legal report of 22 February 2008. He concluded that the plaintiff tore the rotator cuff and the glenoidal labrum in the injury on 5 July 2005 when she tried to stop an elderly person from falling.

37        The treating surgeon, Mr Byrne, in particular, supports a conclusion that the plaintiff suffered a discrete injury involving a tear to the rotator cuff. This diagnosis is also supported by the treating general practitioner, Dr Garde. Even when describing an “aggravation,” Mr Kudelka also accepts that Mr Byrne’s report gives the most detail. In these circumstances I accept the diagnosis of Mr Byrne.

38        I further accept that the injury arose out of or in the course of employment during the “falling incident” as properly conceded by the defendant. Further, that there has been an impairment or loss of body function of the right shoulder resulting from this compensable injury.

39        Given the lack of improvement I am also satisfied that the injury is permanent in the sense that it is likely to last into the foreseeable future.

40        Further, despite the earlier problem of fibromyalgia,[3] the plaintiff had been able to return to nursing in an acute ward with no time off. I also accept her claim that the pain associated with this present injury is “different” to the generalised pain that she had suffered over the years as a result of her fibromyalgia. In those circumstances I accept that the consequences she describes are “materially contributed to” by the falling incident which occurred in July 2005.

[3]             As described in the reports constituting exhibit 3 and in the report of Dr Marian Miller of 19 March 2004

41        The remaining issue is therefore whether the consequences are “very considerable.”

42        I accept that the plaintiff suffers from serious physical consequences (not psychological or psychiatric consequences)[4] as she has generally described. These include pain “all the time;” that she has awful problems with sleep; there is not an hour in the day when she is not affected by her condition; and the need for frequent medication. I also accept, consistent with the preponderance of the medical opinions, that she can no longer work as she once did as a registered nurse division 2 and I accept that this vocation was very important to her as demonstrated by her return to the profession after a considerable break.

[4] Which must be excluded under s134AB (38)(h)

43        In all of the circumstances then, the plaintiff has satisfied me that she suffers from consequences which may be fairly described as being more than significant or marked, and as being at least “very considerable.”

44        I would add that, even if the injury was an aggravation injury, prior to the July 2005 incident, the plaintiff was capable of working in the acute section of the hospital as a division 2 nurse without taking time off. She also described little interference in her work or personal life as a result of this condition.[5] This is to be compared with her situation today wherein she is incapable of full nursing duties; is limited in her activities; has pain all the time (which she describes as “different”) and awful problems with sleep.

[5]             First affidavit of the plaintiff of 11 December 2009, paragraph 17

45        In these circumstances I am satisfied that the aggravation would itself be a serious injury pursuant to the principles set out in Petkovski[6] and Angeletos[7] if, contrary to the above finding, the injury was an aggravation injury.

Psychiatric condition

Medical Evidence

[6]             Petkovski v Galletti [1994] 1 VR 436

[7]             Angeletos v Museum of Victoria [1999] 3 VR 157

46        Mr Das saw the plaintiff on 2 August, 2005 and describes in his report of 3 October 2005 how she had been recently nursing a lady whose family “took a dislike “ to Mrs Cleary and “were verbally aggressive towards her.” Since that episode she had become teary and depressed but continued working. However she had got worse so she decided to decrease her working hours. When he saw her she was “teary and crying” and he referred her to Dr Duke, psychiatrist.

47        Dr Duke, treating psychiatrist, completed two reports dated 24 January 2006 and 14 July 2006.

48        In his most recent report, he diagnosed major depression. He did not regard her when he saw her “as disabled on psychiatric

grounds.

49        Ms Tess Howells, treating psychologist, saw the plaintiff for the first time on 26 October 2005 and completed two reports.

50        In her first (undated) report, she says that the plaintiff’s symptoms are consistent with post-traumatic stress disorder, adjustment disorder with mixed anxiety and depressed mood, major depressive disorder and generalised anxiety disorder.

51          In her report of 2 August 2010 she concludes: “Once Kerry

achieves significant reduction in her depression and anxiety symptoms, it may benefit her to explore the possibility of being engaged in other roles within the caring professions on a casual or part-time basis but these roles will be limited by the physical constraints related to her injuries.”

52        As indicated already, Dr Garde was the plaintiff’s treating GP.

53        In her most recent report of 23 December 2010, she opines that the plaintiff has a depressive illness and possible post traumatic stress related to a series of traumatic interactions with a patient’s family members.

54        She concludes: “I feel Mrs Cleary would be able to perform some

part-time work should she choose to in the future and should she be able to overcome the psychological barriers she has to this process.”

55        Dr Entwisle, psychiatrist, completed two medico-legal reports of 13 October 2005 and 8 February 2006. In his first (more substantive) report, he opined that work itself was not a “significant” contributing factor and that she does have a capacity for suitable employment.

56        Dr Ivers, psychiatrist, completed a medico-legal report of 6 September 2006.

57        He diagnoses major depression and panic disorder with major avoidance. He opines that “at this point in time I would have to say

that she is completely incapacitated for work (irrespective of her orthopaedic condition) in relation to her psychiatric condition with any prospect of going back to the Seymour Cundy unit.”

58        The reference to the Seymour Cundy unit suggests that Dr Ivers is only opining as to the plaintiff’s capacity to work in that particular unit rather than suggesting that she had no prospect of working generally. Otherwise there seems little point in including the reference.

59         Dr Stern, psychiatrist, completed one report of 14 January 2009 wherein he accepts that the plaintiff’s psychiatric state is still related to the abuse from relatives of the patient in June 2005 but says “from a psychiatric aspect alone… she is fit for work.”

60        Mr Epstein completed two medico legal reports of 27 July 2007 and 30 September 2010.

61        In his most recent report, he opines that she has developed a chronic adjustment disorder with depressed mood and gives a poor prognosis. “She has not been able to return to work because of the combination of her physical and psychiatric conditions.” The report therefore does not support incapacity for work on psychiatric grounds alone.

Summary of Medicals

62        The plaintiff suggested that I should reject the opinion of Dr Duke. Although I accept that his opinion is somewhat dated, his report is to be given weight given he was the treating psychiatrist. Moreover, his opinion is generally consistent with a number of the other doctors who do not suggest that the plaintiff would be unable to work. Indeed the strongest opinion in support of the economic claim is the report of Dr Ivers which is also dated. Moreover, as highlighted already, his opinion appears to be directed to the plaintiff’s incapacity in the Seymour Cundy unit only, rather than on a more general incapacity for work.

Findings

63        Mr Scanlon accepted that there had been a psychiatric effect on the plaintiff as a result of the behaviour of the family of the elderly lady. Although there has been a significant effluxion of time, I am satisfied that the plaintiff suffers from a compensable injury, involving depression, which originally arose out of or in the course of employment.

64        I further accept that this injury is permanent given the length of time it has subsisted. I accept that the plaintiff reacted strongly to the incident and continues to do so.

65        The plaintiff has previously suffered anxiety and depression.[8] However, the incident in July 2005 appears to have had a significant impact on her, galvanising her into a departure from work. In those circumstances I generally accept that the consequences she describes today are “materially contributed to” by the family’s behaviour which occurred in July 2005.

[8]             See for example the report of Dr Kornan of 29 May 1992

66        It remains to consider whether the consequences are “severe” as required.

67        An issue, in the light of the reports of doctors Howells and Garde, is whether the plaintiff can “overcome” her psychological barriers and achieve a reduction in her symptoms. However, the plaintiff has been able to overcome her psychological issues in at least the following ways:

• The plaintiff has worked in babysitting since the incident and fairly conceded that she could nanny for friends or family, or grateful people that she knows in the community in Portland;

• the plaintiff has been able to participate in trips to China and Fiji with strangers.

• the plaintiff has also been able to function, particularly in the recent China trip, without any psychiatric medication beyond the rescue remedy drops;

• although the plaintiff had previously seen her psychologist regularly, she was able to manage without her assistance for a lengthy period between September 2009 and February 2011. This, notwithstanding the recommendation of Ms Howells that it was important for her to continue with regular treatment.

68        The evidence does not suggest that the plaintiff is incapable of overcoming her psychological barriers. The opinion of Dr Howells also highlighted that she may benefit from being engaged in other roles within the caring professions which would potentially give her a stronger social life, an increased sense of purpose, and greater stimulation.

69 I have considered the factors set out in the s.5 definition of “suitable employment” in the Act. The plaintiff is now aged 59 and has many years experience in nannying. She has accepted that she could nanny for people in her place of residence and has in fact done so. In those circumstances I am not satisfied that she has no capacity for any suitable employment.

70        The plaintiff in opening, accepted that the economic claim was effectively “all or nothing” and that the plaintiff was putting a case that she could not work at all.

71        On the basis of the material before the court, including the medical reports, I am unable to be satisfied that the plaintiff could not work in suitable employment. In those circumstances, the plaintiff has not satisfied me that the loss of earning consequences are “severe.”

72 Further, given that I am not satisfied that the plaintiff would be incapable of working in any suitable employment, I am unable to be satisfied that the plaintiff has a loss of earning capacity of 40 percent or more, and will after this date continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 percent or more pursuant to s.134AB(38)(e).

73        It follows that the claim for loss of earning capacity fails.

74        In terms of pain and suffering, it may be unnecessary to consider this issue given my finding in favour of the plaintiff (on pain and suffering) in relation to the physical injury. However, I will briefly record my views.

75        I accept that, consistent with the report of Dr Ivers, the plaintiff would be unable to return to the Seymour Cundy unit. However, the medical evidence does not establish that she cannot return to nursing as a result of her psychological condition. Her own view that she cannot return must also be considered in the light of her own objective actions. Thus, she has been able to overcome her psychological barriers in order to travel with strangers on at least two occasions, and has also been able to work with people that she knows in nannying.

76        I accept that the plaintiff has some difficulty sleeping, has anxiety, and cries easily. However, she has been able to manage without resort to medication beyond her rescue remedy drops and without ongoing help from her psychologist.

77        Overall, I am unable to be satisfied that she has suffered consequences which are more than serious to the extent of being “severe” within the meaning of the Act.

78        It follows that, if it be necessary to decide, the claim for pain and suffering in respect of the psychiatric condition would also be refused.

Conclusion

79 There will be leave to the plaintiff to bring proceedings pursuant to s.134AB of the Accident Compensation Act 1985 for damages for pain and suffering only in respect of the injury to the right shoulder sustained in July 2005.

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Certificate

I certify that these 22 pages are a true copy of the reasons for decision of Her

Honour Judge Kennedy, delivered on 12 May 2011.

Dated: 12 May 2011

Sonja Mileska

Associate to Her Honour Judge Kennedy