Cleary v Woolworths Ltd
[2013] VCC 2002
•19 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Restricted Suitable for Publication |
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-12-04742
| DEBORAH CLEARY | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 02 December 2013 | |
DATE OF JUDGMENT: | 19 December 2013 | |
CASE MAY BE CITED AS: | Cleary v Woolworths Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2002 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Accident compensation – Serious injury – s 134(37)(a) Accident Compensation Act – Permanent serious impairment or loss of a body function – Left shoulder and arm – Pain and suffering – Economic loss.
Legislation Cited: Accident Compensation Act 1985 (VIC)
Cases Cited: Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171 (31 August 2006); Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219 (28 November 2008); Dwyer v Calco Pty Ltd (No 2) [2008] VSCA 260; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 (5 May 2011); Jovanovska v Betta Foods Pty Ltd & Anor [2009] VSCA 98 (18 May 2009).
Judgment: Leave granted pursuant to s 134AB(16)(b) Accident Compensation Act 1985 for the plaintiff to bring proceedings for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | C. Blanden | Maurice Blackburn |
| J. Forbes | ||
| For the Defendant | B McKenzie | Herbert Geer |
HER HONOUR:
Introduction
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on or about 23 December 2006.
2 The Plaintiff seeks leave in relation to both pain and suffering and economic loss.
3 The Plaintiff’s application is brought pursuant to sub-paragraph (a) of the definition of serious injury in s134AB(37) of the Act for permanent serious impairment or loss of body function. The body function in question is the plaintiff’s left shoulder and elbow.
4 The basis upon which the plaintiff’s application is contested by the defendant is with respect to:
(i) Causation of the claimed left shoulder injury;
(ii) Seriousness of the consequences of the claimed injury; and
(iii) Economic loss consequences.
5 The plaintiff swore two affidavits. The first affidavit is dated 17 May 2012 and the second affidavit is dated 27 November 2013. The plaintiff and her General Practitioner Dr Al-Tawil were cross-examined. The parties otherwise relied on documentation in their respective court books.
6 In addition to this material the parties referred to a number of decisions of the Court of Appeal, including Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171 (31 August 2006); Doolan v Rayners Sawmills Pty Ltd & Anor [2008] VSCA 219 (28 November 2008); Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 (5 May 2011), and Jovanovska v Betta Foods Pty Ltd & Anor [2009] VSCA 98 (18 May 2009). In reaching this decision I have considered these authorities.
Background
7 The plaintiff was born on 02 June 1959 and is presently 54 years of age. She lives with her partner, Mario, and has five adult children who are all independent.
8 The plaintiff completed Year 10 at Glenroy Technical School. When she left school, she worked in a factory making socks until she turned 18. She then had time out of the workforce while having her children.
9 From time to time she did a range of jobs, including loading gigs at a galvanising place and selling toilet cleaners. She has always worked in physical jobs and enjoyed being physically active.
10 In the late 1980s, the plaintiff obtained work as night crew, unpacking boxes at a supermarket, and after that time her employment was with various supermarkets.
11 In 2003 she obtained a position as a planogrammer at Woolworths in the Wallan store. A planogrammer is a person who is responsible for changing the presentation of various sections of the supermarket. Each part of the supermarket is named and sectioned. There is a plan as to what products are placed in what positions on the shelf in each section. As seasons change and products change, new designs will be sent to the stores for presentation of product and the planogrammer would take these designs and dismantle and reassemble sections of the supermarket in accordance with those plans.
12 The work involves taking products off the shelves, reconfiguring the shelves and putting the products back again. They would generally do separate sections of the supermarket, which may be one or multiple bays. It would involve product moving from one place to another on the shelving, from one bay to another, and often involve dismantling and reassembling the shelves in order to fit the new product layout. The plaintiff described the job as “very much like working with a life-sized Lego or Meccano set”.[1]
[1] Plaintiff’s Court Book (“PCB”) 14.
Circumstances of the Accident
13 The plaintiff claims that she suffered an injury to her left shoulder and elbow on or about 23 December 2007. On that day, she was asked by her boss to come and work on the promotional section. The promotional section had been full of Christmas stock which had nearly been sold out. As the pay for that week already been done due to Christmas, she was asked not to clock on for her shift and was told that her boss would arrange a payment for her.
14 The plaintiff was pulling apart the shelving in order to reassemble the new promotional section and was dismantling the steel dividers on the shelves. In order to get the divider out of the shelving, she was required to sit on the ground with her feet against the shelf to get leverage in order to pull the divider. This was the usual way she would have to remove the dividers. As she was doing this, the dividers suddenly became loose and she fell backwards, wrenching her left shoulder and arm.
15 The plaintiff claims that at the time she felt incredible pain in her shoulder and across the front of her shoulder on the left hand side of her chest but she thought that it would settle. She had nearly completed her shift at the time of the incident, so she completed the work but did not report the incident. She had trouble sleeping that night and, over the Christmas period off work, she suffered increasing pain.
16 The plaintiff first sought medical treatment after Christmas, at the Northern Hospital on 27 December 2006. On 14 January 2007 she lodged a WorkCover claim with respect to her injury. There was an initial dispute as to whether or not she was working on the day of the injury, as the computer clock records did not show she was present at the store. However, her claim was eventually accepted and received weekly payments of compensation and payment of medical expenses.
17 The plaintiff claims that since the occurrence of her left shoulder injury she has also developed left elbow and left wrist pain. She has made an impairment benefits claim with respect to her left shoulder, elbow and arm.
Treatment
18 The plaintiff claims that the pain she suffered got worse the next day. On 27 December 2006, she attended the Emergency Department at the Northern Hospital where she was examined and advised that she was probably suffering from muscle strain and to attend her general practitioner.
19 The plaintiff attended her general practitioner, Dr Chan, at Bendigo Medical Centre on 29 December 2006 and underwent an x-ray on that day. On 02 January 2007 she attended Dr Wynn at the Millana Medical Centre, because she was continuing to have pain. She was prescribed Panadeine Forte.
20 In January 2007, the plaintiff attended Dr Al Tawil, a local doctor, at the Medic Clinic in Wallan. Dr Tawil recommended that she undergo a further x-ray and an ultrasound. The doctor advised the plaintiff that the ultrasound showed that she had a torn tendon on her shoulder and that she was likely to need surgery.
21 The plaintiff was then referred to Mr Shane Barwood, an orthopaedic surgeon, who performed surgery on her left shoulder on 26 March 2007. In early 2008, she returned to Mr Barwood because of ongoing problems with her left shoulder. He recommended that she continue with her exercise program and otherwise simply modify her activities to manage her symptoms. The plaintiff also continued with physiotherapy from Andrew Grey until he informed her that she would be unlikely to achieve any further improvement in her shoulder.
22 On 01 September 2009 the plaintiff underwent a further ultrasound of her left shoulder, which concluded that there was full thickness supraspinatus tendon tear. While the prospect of further surgery was discussed, she was not given any guarantee of a better outcome this time, which made her decide against undergoing further shoulder surgery.[2]
[2] PCB 62.
23 On 10 January 2007 there was a left shoulder x-ray. The conclusion was a full thickness tear of the anterior supraspinatus with mild overlaying bursitis associated supraspinatus tendonopathy.
24 On 10 October 2007 there was a left elbow ultrasound. The appearance was consistent with a clinical diagnosis of tennis elbow.
25 At that time the plaintiff continued to take significant pain relieving medication, particularly Tramadol and Panadeine Forte, on a regular basis. However, due to the addictive nature, particularly of Tramadol, her general practitioner recommended that she try to cease the medication. As a result of this advice the plaintiff ceased her regular pain relief medication. However, when the pain becomes unbearable or prevents her from sleeping she still takes Tramadol or Panadeine Forte.[3]
[3] T61-65
Work capacity and rehabilitation
26 Approximately three months after the surgery the plaintiff resumed work at Woolworths on light duties. Within a short time she was able to work 32 hours per week, working two days, having Wednesdays off, and then working a further two days. This pattern of work suited her as she was able to use both Wednesday and weekends as recovery days. However, she found that after two days of working, even with light duties, that her level of pain in her shoulder and upper arm increased.
27 In late 2007, the plaintiff convinced her employer to let her attempt to return to the planogram work, which she loved. However, that attempt only lasted for a few weeks. In the period of trialling the planogram work, her shoulder flared up again and she needed to take some weeks off work. From that time on, she never returned to planogram work.
28 The light work the plaintiff did involved stocking light products such as health and beauty products on the shelves. The work was a series of nominated tasks that were within her capacity, rather than a particular job. For example, she did code checks and she would write the weather up each week on the whiteboard.
29 The plaintiff had hoped that Woolworths would be able to retrain her into some administrative-type work within the organisation. In January 2011 she was still working 32 hours and had been talking with her employer about changing her employment. However, Woolworths did not agree to this, and on 11 January, the plaintiff was called in and told that there were no light duty positions available for her within Woolworths.
30 When her employment was terminated the plaintiff received a letter from Woolworths terminating her WorkCover benefits from February 2011. Shortly prior to her termination she had made arrangements to undertake a business and administration course at Eaglehawk. While Woolworths had promised to pay her a travel allowance for attending this course they did not do so. The Plaintiff was then not able to complete the course as she could not afford the travel costs.
31 In the time the plaintiff spent doing the course she became aware that the amount of computer work the course required was causing her problems with her left arm. It made her realise that the hope of being retrained into computer-based administrative role within Woolworths may not have been realistic.
32 In October 2011, shortly after the plaintiff had ceased the business course in Eaglehawk she fell and broke her right hip. As a result of this injury the plaintiff underwent two lots of surgery in October and November 2011. First, to repair the hip, and secondly, to have an artificial hip inserted.
Medical reports
Plaintiff’s Medical Reports
Treating Practitioners
The Northern Hospital
33 There was a medical report from the Northern Hospital.[4] This reported that she came into the Emergency Department of the Northern Hospital at 15:22 hours on 27 December 2006. She complained of pain over her chest wall, particularly on the left side, and laterally around the shoulder. She had had pain since she got up that morning. There was no history of trauma. The pain was worse with movement. They thought she was probably suffering from muscular pain. She was discharged on Panadeine Forte and advised to go to her local medical offer for follow-up.
Dr Al Tawil
[4] PCB 30.
34 Dr Al Tawil reported on 07 February 2007 that the plaintiff presented to the clinic on 08 January 2007 with a history of left shoulder pain since 23-24 December 2006. Analgesic was given and arrangements made an for x-ray and ultrasound. The x-ray and ultrasound revealed a full thickness tear of anterior supraspinatus bursitis and tendonopathy.
35 The history the plaintiff gave Dr Al Tawil was that :
“On 23 December 2006 she was pulling dividers from bottom shelf, she felt popping in her left shoulder and discomfort, next day felt tight in the shoulder and back and twinges of pain worsening over the days where she ended up in the Northern Emergency Department as mentioned above.”[5]
[5] PCB 32.
36 With reference to the cause of the injury, Dr Al-Tawil stated that:
“The injury is not hereditary and not related to lifestyle of this worker. It is related to the nature of her job. The diagnosis is full thickness tear, anterior supraspinatus in the left shoulder. Bursitis and tendonopathy. The prognosis is dependent on assessment of surgeon.”[6]
[6] PCB 33.
37 When Dr Al-Tawil was cross-examined on her notes of the plaintiff’s attendance she agreed that her notes stated “Left shoulder pain for two weeks No trauma” and also a notation “? at work.” Her explanation for writing the words “No trauma” was that it meant no fall.[7]
[7] Transcript (“T”) 72.
38 With respect to the notation “? at work,” Dr Al-Tawil’s explanation was in essence that she had put a question mark as although the had plaintiff told her what happened at work she wanted to see if there was any major damage before issuing a certificate.[8]
[8] T 75.
39 On 9 December 2010 Dr Al-Tawil issued the plaintiff a Work Capacity certificate stating that the plaintiff was fit for “office work, no lifting, no repetitive movement, need extra rest period, no reaching up, no planogram duties, four shifts 32 hours a week Monday, Tuesday, Thursday Friday”.
40 On 17 May 2011 Dr Al-Tawil reported on the plaintiff’s progress after the surgery on 26 March 2007. The plaintiff was having ongoing physiotherapy. She had developed anxiety and depression secondary to her left shoulder injury which had affected her work and home duties.
41 With regard to the plaintiff’s work she had been able to go back to work on alternative duties. She was able to work full time doing duties that did not involve overhead reaching or stretching. She was currently able to work 38 hours per week doing office-related work.[9]
[9] PCB 36.
42 When Dr Al –Tawil was re-examined regarding the hours the plaintiff could work she agreed that the plaintiff had only been able to get up to 32 hours before she stopped work and that she had been very motivated to do re-training.[10]
Mr Shane Barwood, Shoulder and Elbow Orthopaedic surgeon
[10] PCB 76-77.
43 On 1 July 2008 Mr Barwood reported that when he first interviewed the plaintiff on 16 February 2007, she had described that she was pulling a divider when she felt a ripping sensation in the left shoulder with associated pain. Prior to that she had no shoulder symptoms or injuries.
44 Mr Barwood reported on the surgery he performed on the plaintiff’s left shoulder on 26 March 2007 that at the time of surgery he had noted a partial thickness tear of the rotator cuff with impingement and also a superior labral tear which had not been detected in the ultrasound. There was also some early degenerative change of the cartilage.[11]
[11] PCB 37.
45 After the surgery he had reviewed the plaintiff on a number of occasions. On 28 September 2007, the plaintiff was quite happy with the results of the surgery. On 30 April 2008 however, she had described the shoulder as having recurrent pain and also some associated elbow pain which in his opinion was consistent with tennis elbow. He had explained to the plaintiff that further surgery would not assist her condition and to continue with a home-based exercise program.
46 Mr Barwood diagnosed the nature of the plaintiff’s injury as being a partial tear of the supraspinatus tendon which remained painful despite surgical decompression and debridement. There was also an associated partial tear of the biceps tendon.
47 In his opinion the plaintiff’s employment was a significant contributing factor to the injury and he said:
“The type of injuries is commonly seen on people who perform lifting activities, particularly overhead. My understanding from Mrs Cleary’s , occupation this was a common part of her work activities. At this stage the prognosis for Mrs Cleary is somewhat guarded. I suspect she will not be able to fully restrengthen the shoulder and that she may have some ongoing pain and weakness. I have suggested to her she may be wise to change her occupation and perform more sedentary-type duties.”[12]
Physiotherapy Report
[12] PCB 39.
48 There was a report from Wallan Physiotherapy Centre dated 5 March 2008. It stated that the plaintiff had stopped the physiotherapy due to returning to long hours of work at Safeway.
Hugh Weaver, Orthopaedic specialist
49 In his report of 15 July 2008, Mr Weaver described the plaintiff as presenting to him a well motivated individual, and he said:
“I am sure Mrs Cleary will make all attempts to return to employment as soon as she can. However, she clearly presents, even at the present time, with a very substantial impairment of left shoulder function overall and she would obviously struggle to get back to he usual planogram activities.”[13]
[13] T 47.
50 His diagnosis was that
“This woman is clearly exhibiting evidence of a substantial persisting rotator cuff problem involving her left shoulder. There is rather less dramatic evidence of any problem affecting her left elbow region. It goes almost without saying that her employment activities continue to represent a materially contributing factor to her situation.[14]”
[14] PCB 48.
51 On 7 September 2009 he said:
“Mrs Cleary made it apparent from the commencement of this interview, largely because of the persisting character of her left shoulder problems, she is keen to try and retrain for alternative employment within the Woolworths organisation. This was a matter to which she returned consistently and frequently throughout the course of this interview. She confirmed to me that she had basically remained in employment throughout the period since I last saw her although she’d been obliged to have a day or so off at a time when pain is most severe.”[15]
[15] PCB 50.
52 Mr Weaver described the plaintiff as suffering from a continuing and substantial rotator cuff tear involving her left shoulder. He was pessimistic about any chance of the injury resolving at any time in the foreseeable future.[16]
[16] PCB 53.
53 In his final report of 13 October 2010 Mr Weaver was of the opinion that the aggravation had not resolved and that the plaintiff might be best advised to retrain for alternative work of a lighter character. With respect to the plaintiff’s motivation to work he said
“Once again this woman is known to be presenting with signs of a rotator cuff problem involving the left centre. I can only repeat she does present, even now, as a fairly well-motivated individual, given that she has managed to continue working for 32 hours a week, which is only six hours per week less than the full-time employment which she had previously been undertaking.”[17]
Medico-Legal
Mr Russell Miller, Orthopaedic Surgeon,
[17] PCB 57.
54 In his report dated 9 September 2013 Mr Miller accepted that the plaintiff had suffered an injury to her left shoulder with the development of rotator cuff pathology in the shoulder. He described the plaintiff as having
55 “Significant ongoing symptoms in her left shoulder and may well have recurrent rotator cuff pathology in the left shoulder. I believe the prognosis for the left shoulder is only fair.”[18]
[18] PCB 69.
56 His diagnosis as to the right shoulder was similar as he stated that:
“This lady has developed symptoms in the right shoulder and very likely has rotator cuff pathology in the right shoulder. The symptoms in the right are less than those in the left shoulder. The prognosis, however, for the right shoulder is only fair”.[19]
[19] T 69.
57 With respect to the relationship of the plaintiff’s injuries to her employment, in Mr Miller’s opinion, her neck, left shoulder and left elbow symptoms reflected the effects of work in general and the work injury in December 2007. In addition he considered that although there were psychological factors her presentation “was dominated by defined organic disease”[20].
[20] PCB 69.
58 With respect to her work capacity, Mr Miller considered that because of her age, education and work experience, a return to work would be highly problematic.
Dr Talat
59 On 6 September 2013 Dr Talat provided a diagnosis of the plaintiff’s injury as being a full thickness tear of the supraspinatus muscle with continuous pain and range of movement in the left shoulder. In his opinion the plaintiff’s injury was consistent with the stated cause and she unable to go back to her normal duties as a planogrammer at any time in the future. The plaintiff would always have left shoulder pain and range of movement restrictions on the left shoulder and need pain relief from time-to-time with analgesic and physiotherapy.[21]
Dr Horsley
[21] PCB 73.
60 In her report dated 11 November 2013, Dr Horesly stated in relation to the plaintiff’s current symptoms:[22]
“Mrs Cleary has ongoing left shoulder disability. She has discomfort in the left shoulder most of the time. She states that she avoids wearing a bra strap because of the pain. On the left arm she avoids wearing bracelets or watches. Over the last seven to eight months Ms Cleary has been experiencing right shoulder discomfort”[23]
[22] T 78.
[23] PCB 78.
61 The prognosis was that given the length of time since the injury and the ongoing nature of the symptoms, they were likely to persist. The plaintiff had ongoing disability related to her bilateral shoulders. The disability was more left-sided than right-sided.[24]
[24] T 80.
62 With respect to the plaintiff’s work capacity Dr Horesly was of the opinion that while she was permanently unfit for her previous role as a planogrammer, she would benefit from a return to work with a flexible employer in a more sedentary role, on a part-time basis, of about 15-20 hours per week.
63 Work restrictions would apply including avoidance of repetitive over-pushing, repetitive pushing/pulling, restrictions on above shoulder activities, and of working in awkward and confined spaces. In addition avoidance of lifting items greater than 8-10 kilos except on an occasional basis and of lifting items up to 5 to 8 kilos.
64 However, Dr Horesly considered that in order for the plaintiff to return to work she would require some upgrading of her computer skills. The fact that she lived in Heathcote (45 minutes from Bendigo) was a barrier to return to work.
Defendant’s Medical Reports
Dr Cronin, Consultant Psychiatrist
65 In his report dated 29 February 2010, he diagnosed the plaintiff as suffering from an Adjustment Disorder with anxious and depressive features as a consequence of her (left shoulder, left elbow and left arm) injuries suffered on 23 or 24 December 2006. In his opinion she was unlikely to show any significant improvement in the foreseeable future. Her condition was permanent and stable.[25]
Dr Shan Consultant Psychiatrist
[25] DCB 82.
66 In his report dated 24 July 2012 Dr Shan’s diagnosis was an Adjustment Disorder, a condition which developed as a consequence of, or secondary to, the plaintiff’s shoulder injury; regardless, it was recently aggravated because of the consequences of her hip injury”.[26] The diagnosis went on to say that “The Adjustment Disorder was presently mild and did not contribute to incapacity for work.”[27]
Professor Buzzard
[26] DCB 89.
[27] DCB 89.
67 In his report of 27 August 2012, Professor Buzzard was of the opinion that the plaintiff suffered a soft tissue injury to the left shoulder (a rotator cuff tear) “as a result of the accident described.” The operation to the left shoulder had not been completely successful and she had continuing pain and limitation of movement in her left shoulder. He thought that this situation was unlikely to change in the future.[28]
[28] DCB 94.
68 As far as the plaintiff’s employment capacity is concerned,[29] in his opinion, she is precluded from her pre-injury employment, and is not able to work in a job requiring a full range of movement of the left shoulder or a range of movement to the left shoulder greater than that which was demonstrated on examination.
Mr Shannon
[29] DCB 95.
69 In his report of 05 June 2013, with respect to the left shoulder, Mr Shannon diagnosed the plaintiff as suffering from bilateral rotator cuff degeneration with rotator cuff tears. As to causation, he accepted that the incident described by the plaintiff (the incident at work in 2006) could well have resulted in a tear of a degenerative rotator cuff.
70 Mr Shannon accepted with respect to the right shoulder that the plaintiff had a rotator cuff tear on a background of rotator cuff degeneration. Given that the plaintiff had not claimed any injury to her right shoulder in the course of her employment and that her symptoms were recent he presumed that this was a degenerative tear.
71 In terms of work capacity he believed that the plaintiff would never be able to go back to her formal occupation as a planogrammer or any other work involving strenuous or repetitive work with either arm, heavy lifting or work above shoulder level. However, she may be capable of light office-type work in the future.[30]
[30] DCB 103.
72 In his report dated 06 November 2013, Mr Shannon commented that “there has been little change in Mrs Cleary’s compensable condition that is her left shoulder since my previous examination”.
73 He thought with regard to work capacity the plaintiff had no capacity for her pre-injury employment, predominantly due to the compensational left shoulder condition, although the development of symptoms in right shoulder was also a barrier.
74 If the plaintiff was to seek work in the open market she would need to obtain work which did not involve strenuous or repetitive use of either arm, heavy lifting or work above shoulder level.[31]
Michael Dooley
[31] DCB 108.
75 Mr Dooley did not examine the plaintiff. However, he was asked to comment on whether or not on the balance of probabilities it was possible that the alleged left-shoulder injury could have occurred in non-compensational circumstances given that the nursing and medical records (the Northern Hospital 27 December 2006 and Greenvale Medical Centre 2 January 2007) had noted that there was no history of trauma.
76 In Dr Dooley’s opinion the plaintiff had naturally occurring degenerative rotator cuff disease of both shoulders. The radiological signs were indicative of long standing degenerative rotator cuff disease and “on the balance of probabilities, that the tear of the supraspinus tendon of the left shoulder was a consequence of the naturally occurring degenerative process affecting the left rotator cuff region.”[32]
[32] DCB 112.
77 However, he also said that
“Given the mechanism of the injury that she described it was feasible that while carrying out the described activities she could have aggravated underlying degenerative rotator cuff disease. It is possible that a tear could occur and that degenerative supraspinus tendon via this mechanism.”[33]
[33] DCB 112.
Causation
78 The first issue to determine is whether the plaintiff suffered a compensable injury to her left shoulder and elbow arising out of or in the course of her employment with the defendant.
79 As the defendant had eventually accepted the plaintiff’s claim and she had been in receipt of weekly payments of compensation, the Plaintiff relied on Ansett v Taylor [2006] VSCA 171 as an admission by the defendant that the injury had occurred at work.
80 However, the defendant relied on Jovanovska v Betta Foods Pty Ltd [2009] VSCA 98 where the Court of Appeal held that the force of any admission of any of Ms Jovanovska’s claims under the Act was reduced by her supplying inaccurate information in various claim forms
81 It was submitted that the defendant would not have accepted the Plaintiff’s claim if they had known of the following matters set out in the Affidavit of Athena Ioannidis, a Senior Claims Officer for the defendant: [34]
[34] DCB 1-20.
(1) The report of Professor Ian Brand from the Northern hospital which stated that:
“This patient came to the Emergency Department of the Northern Hospital at 15.22 hours on 27/12/06 .She complained of pain over her chest wall particularly on the left side and laterally around the shoulder. She had pain since she got up in the morning. There was no history of trauma”.
(2) The Bendigo Medical Centre clinical notes of 29 December 2006 which noted that the plaintiff presented with:
“left sided chest wall pain since Boxing day. Presented to Northern Hospital, no trauma recalled –does a lot of pulling movement with left arm at work”
(3) The Greenvale Medical Centre note of 2 January 2007 which noted that the plaintiff presented with:
“Back pain ,esp on Rt scapula x a week. No trauma”.
(4)The Mediq Wallen Medical Centre clinical notes on 8 January 2007 which referred to the plaintiff having
“L shoulder pain for 2 weeks. No trauma”.
82 Ms Iaoannidis deposed that the defendant would have denied liability to pay weekly compensation under the Act if they had been in receipt of the above information at the time the claim was accepted.
83 The defendant also disputed the plaintiff’s credibility on the basis that:
84 Mr Miller had reported that the history given to him by plaintiff, was that she “reported the incident and ceased working and went home”.[35]
[35] PCB 65.
85 This history contradicted the:
· Workers claim form where the plaintiff gave a reason for not reporting the incident as being “I thought it was a back problem but only after test revealed tear in shoulder” [36] and
· Plaintiff’s affidavit where she had stated that she did not report the incident.[37]
[36] DCB 46.
[37] PCB 16.
86 In addition, it was submitted that the plaintiff had given differing accounts of the onset of pain as follows:
· In her affidavit it was that at the time she felt “incredible pain” in her shoulder and across the front of her shoulder and on the left hand side of her chest”[38]
· In her claim form (14 Jan 2007) it was that she “Heard a pop, then had pain. Started next day” [On 24 December];[39]
· To Dr Barwood that she was “pulling a divider when she felt a ripping sensation in her left shoulder with associated pain”.[40]
[38] PCB 16.
[39] DCB 45.
[40] PCB 37.
87 However, when she was cross-examined the plaintiff maintained that she had suffered her left shoulder injury at work on 23 December 2006 [41]. She could not recall telling Mr Miller that she reported the incident at work [42] and agreed that she had not reported the incident. The plaintiff’s explanation for not reporting the incident was that at first she thought she had pulled her shoulder and that it would be all right by the next day. She also said that she felt pain but that “it was not real bad until the next day.”[43]
[41] T30.
[42] T 34.
[43] T28-30.
88 There are no witnesses to the incident at work on 23 December 2006 and no record of the plaintiff having clocked on that day. However, the plaintiff has given a feasible explanation for not clocking on and when she was cross-examined about the incident she did not resile from her account of the incident.
89 When the plaintiff attended the Northern hospital on 27 December 2006 the notes reveal that she told them that she does a lot of pulling at work. Dr Al-Tawil’s evidence was that when she saw the plaintiff on 08 January 2006 the plaintiff gave her a history of the incident at work on 23 December 2006.
90 When the plaintiff was cross-examined with respect to the incident, she said:
“All I know was that I felt the pop, I felt some pain and the pain gradually got worse over the next few days. It got so bad it was excruciating in the end.”[44]
[44] T 28.
91 In her Claim for Compensation when she was asked for the date she first felt the noticed the injury/condition the plaintiff answered 24 December 2006, and she said that:
“The pain barrier started to get very bad. At first I just thought it was a pulled shoulder and like any pulled shoulder ,it would be all right the next day. But it did’nt it became worse the next day ,and that’s why I say the next day because that’s when I really noticed the pain.”[45]
[45] T 29.
92 I accept the plaintiff’s evidence with respect to the incident at work on 23 December 2006. The plaintiff struck me as being an honest woman who had genuinely loved her job at Woolworths and who was devastated at its loss. There was no suggestion in any of the medical reports that she was exaggerating her symptoms in any way, or that she was the type of person who would dishonestly bring such a claim.
93 While the plaintiff has described the sensation in her shoulder at the time of the incident in different ways (ripping or popping), the incident happened 7 years ago and it is hardly surprising that she cannot now recall the exact sensation she felt at the time.
94 It is possible that the plaintiff did not make the connection between this incident at work and her left shoulder injury until January 2007 when she had the X-ray of her left shoulder and it revealed the tear. This would explain the notations of no tramau at the early medical appointment.
95 However, irrespective of when she made this connection the plaintiff has given a largely consistent history of the incident at work on 23 December 2006, when she felt some pain in her left shoulder when attempting to remove a steel divider and of the pain getting worse the next day.
96 This is the history received by Dr Al-Tawil and the majority of Medical Experts who all other than Dr Dooley accept that the plaintiff’s injury is consistent with her version of incident at work.( Mr Weaver, Mr Miller, Dr Horsley Dr Mr Buzzard, Mr. Shannon, Dr Cronin and Mr. Barwood.)
97 I accept on the balance of probabilities that the incident at work on 23 December 2006 aggravated the plaintiff’s underlying rotator cuff disease and caused a full thickness tear to the supraspinatus muscle.
98 In rejecting Mr Dooley’s opinion that the injury is a consequence of the naturally occurring degenerative process affecting the left shoulder, I have taken into account that he did not see the plaintiff and have a chance to receive the history of the incident from her and to assess her reliability.
99 In addition I have taken into account that Mr Dooley considered “given the mechanism of the injury” that it was “feasible that while carrying out the described activity” the plaintiff could have aggravated underlying degenerative rotator cuff disease”.[46]
[46] DCB 112.
Consequences of Injury: Pain and Suffering
100 As Maxwell PJ suggested in Haden Engineering Pty Ltd v Mc Kinnon (2012) 31 VR 1, it is of assistance in cases like this, for the purpose of evaluating the pain and suffering consequences of an injury, to distinguish between:
· The plaintiff’s experience of pain as such, and
· The disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.
101 With respect to pain, it is necessary to take into account not only what the plaintiff said in her evidence and affidavits about it but also what the medical practitioners have said about the extent and intensity of her pain. In addition, any objective evidence regarding the disabling effect of pain and medical treatment.
102 As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning and interferes with the plaintiff’s enjoyment of life.
103 In Dwyer v Calco Pty Ltd (No 2) [2008] VSCA 260, Ashley JA said:
“Impairment is concerned with what has been lost. But the significance of what has been lost may be informed, to an extent, by what is retained.”
Pain and Suffering Consequences
The Plaintiff’s Pain and its Treatment
104 The plaintiff continues to experience left shoulder and upper arm pain which at times extends up into the left side of her neck. The left shoulder pain is significant and constant.[47]
[47] PCB 29B & T 62.
105 The plaintiff ceased regular painkillers because she was worried about addiction. However, she continues to take either Tramadol or Panadeine Forte when the pain gets to the point where her sleep is badly affected.
106 Her left shoulder interferes with her sleep most nights. When she was cross examined about her recent usage, her evidence was that she had taken Tramadol twice in four days.[48]
[48] T 61& T 65.
Disabling Effect of Pain
107 Prior to the accident the plaintiff loved horse riding and had owned horses. It was her intention to get a horse. However, since her shoulder injury she has been unable to ride horses as she feels she would be unable to control them.
108 Prior to the injury the plaintiff loved chopping wood. As she was brought up chopping wood, it was a leisure activity as much as a chore. Her family have all been involved in wood chopping competitions and until the accident she did all the wood chopping, using an axe and chainsaw. Now she is unable to use either and her partner does most of the wood chopping using a chainsaw.
109 The plaintiff can no longer hang up the washing or do the ironing.[49] She has difficulty driving long distances as she finds this hard on her shoulder. Her sexual relationship with her partner has been affected.
[49] T 63.
110 The plaintiff remains quite isolated. She is often at home alone and dislikes venturing out.
111 The plaintiff has 15 grandchildren and she is unable to manage the toddlers and babies. She can only cope with the older children who can feed and dress themselves and are more independent.
112 The plaintiff says that had she not suffered her shoulder injury she would have been able to ride horses with her grandchildren, show them how to ride, play with them at the playground, jumping on a trampoline or playing ring-a-roses. These activities have ceased since the onset of her shoulder injury and she now feels like an elderly grandmother.
What She Has Retained
113 The plaintiff lives with her partner on a six acre hobby farm. They collect and care for orphaned animals. There are a number of animals on the farm: ducks, chicks, sheep, a cow, two cats, a dog, and an aviary with many birds.
114 The plaintiff can still care for the animals on the farm as her partner has made many modifications around the property. She has adapted so that, for example, she no longer takes large buckets of water. She largely carries small buckets, etc.
115 Prior to the shoulder injury the plaintiff used to enjoy painting and she developed a hobby painting garden pots. She can no longer paint the large pots but is hoping to adapt her work to be able to paint small pots.
116 Ninety percent of the time the plaintiff does the cleaning and washing of clothes.[50]
[50] T 63.
117 The plaintiff is a natural left hander, but at school she was forced to write with her right hand, so she uses both hands equally well. There are many tasks she still instinctively does left handed.
Finding118
119 I accept that as a result of the injury to her left shoulder the plaintiff suffers from all of the consequences outlined above. Although she has retained a number of physical capabilities the overwhelming medical opinion is that she has a substantial torn left rotator cuff and that surgery on 26 March 2007 was unsuccessful in repairing it. The injury has not resolved and will not resolve in the future. It is not amenable to further treatment; and she is left with a substantial impairment to her left shoulder.
120 The plaintiff is unable to return to her pre-accident employment; and she can not do any work where her left shoulder is used. She is also restricted in the activities of daily living. However, most importantly I accept that the pain in her left shoulder is significant and constant. Although she does not take medication every day I accept that she takes Tramdol or Panadeine Forte when her sleep is badly interrupted by the pain and that her sleep is often interrupted.
121 It is also of significance that at only 54 the plaintiff feels like an “elderly grandmother.” She cannot deal with her younger grandchildren and is restricted in what she does with the older children. I accept that that the impairment to her left shoulder has consequences in relation to pain and suffering which when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being at least “very considerable”.
Work Capacity
122 With respect to loss of earning capacity the defendant firstly relied on the fact that the plaintiff had returned to work after suffering her injury, thereby demonstrating the capacity to earn an income from personal exertion with the defendant.
123 Secondly, while it was accepted that the plaintiff could no longer do her pre-injury job, the defendant relied on the following medical opinions that she still retained a physical capacity for light work:
124 Dr Al Talwil – In mid-2011 advocated 38 hrs a week office-related work.[51]
[51] PCB 42.
125 Mr Barwood - Who was of the opinion that she would be wise to change to more sedentary type duties.[52]
[52] PCB 39.
126 Dr Horesly - With re-training she had a potential capacity for work part time in a more sedentary role.[53]
[53] PCB 80-81.
127 Mr Weaver - best advised to retrain for alternative work of a lighter character.[54]
[54] PCB 58.
128 Mr Shannon - work which did not involve strenuous or repetitive use of either arm, heavy lifting or work above shoulder height.[55]
[55] DCB 108.
129 Professor Buzzard - work with restrictions regarding use of her shoulders.[56]
[56] DCB 96.
130 Dr Shan - that there was no incapacity for work due to her mild Adjustment disorder.
131 It was further submitted for the defendant that the plaintiff had a number of skills which would assist her in finding light work. Her literacy was good, she could touch-type, she had reasonably good computer skills, and in the 1990s she had worked for Mitsubishi cold-calling customers.
132 In particular, it was submitted that the plaintiff was capable of performing the jobs identified in the NES Vocational Assessment Report dated 14 June 2011 by Bendigo Access Employment (Bendigo Access) including:
· Clerk (accounting) - $870 per week;
· Sales assistant-$700 per week;
· Console operator-$566 per week, and
· Call centre operator - $807 per week.[57]
[57] DCB 113.
133 It was submitted that if the plaintiff did any of these jobs it would result in her earning more than 60 per cent of her without-injury earnings, as determined in accordance with s134AB(38)(f) of the Act. In addition, it was also submitted that she had not discharged her onus under s134AB(38)(g) of the Act in relation to participating in retraining, rehabilitation, or seeking alternative employment or further or additional employment.
134 When the plaintiff was cross-examined about performing the light duties for Woolworths she agreed that she “pretty quickly got up to 32 hours”[58] and continued on these hours until her employment ceased in January 2011. She agreed that at the time 32 hours per week had suited her.
[58] T 36.
135 The plaintiff also agreed that she would have continued to perform 32 hours a week if the job had continued,[59] but she also said that:
[59] T 36.
“ I was hoping for retraining because the job I was doing was driving me insane I was depressed and they were just making me more depressed. “[60]
[60] T 36.
136 It appeared from the plaintiff’s evidence that she would be happy to work 32 hours per week if she could get a job within her restrictions, but that:
· She believed there were limited opportunities in Heathcote as most shops were owner-run,[61] and
[61] T 44.
· That Bendigo and Seymour were to far away to drive with her shoulder (45-50 minutes away), as were Wallan and Kilmore (55-60 minutes away).[62]
[62] T 36 & T 43.
137 However, the plaintiff agreed that she had not:
· Applied at any of the stores in Heathcote, Wallan or Seymour.
· Looked on the internet for a job.
· Registered with any job agency.[63]
[63] T 46.
138 With respect to the jobs recommended by Bendigo Access the plaintiff‘s evidence was that these were jobs she had done in the past. She could not do a job as a console officer anymore. She said it is limited as to what she could now do.[64]
[64] T 48.
139 When it was suggested to the plaintiff that she was currently earning 75 per cent of her salary and this was why she was not at work she denied this . She said she would rather have a job any day of the week but did not have the confidence to walk up to an employer and ask for the job.[65]
[65] T 50.
140 I accept the majority medical opinion that the plaintiff has the capacity to perform light work which does not involve over-use of her shoulders. While she did not enjoy the work, the plaintiff demonstrated that she had a capacity for light alternative work when she returned to work for the defendants after the injury.
141 It appears to me that the plaintiff has done little to obtain work since ceasing work with the defendant in February 2011. While it has been suggested that her weekly insurance payments are a disincentive, I note that a number of the medical experts described her as being motivated to get back to work.
142 I accept that this was the case but that the plaintiff really wanted to be retrained by the defendant for a more sedentary job and that she was very disappointed when they did not follow through with this. I also accept that she has lost her confidence to look for a job and is worried about having to drive to work.
143 The plaintiff’s gross earnings from personal exertion as disclosed in her taxation return summary were as follows:
· 2003/2004 gross earnings were $29,011;
· 2004/2005 gross earnings were $29,607, and
· 2005/2006 gross earnings were $30,360.
I accept that the 2005/2006 year most fairly reflects her without injury earnings giving a figure of $30,360 gross per annum or $584 gross per week. Sixty per cent of $30,360 gross per annum is $18,216 gross per annum or $350 gross per week .
The jobs provided by Bendigo Access are in excess of $350 gross per week and even if she worked 32 hours a week she would be earning in excess of 60% of her pre-injury earning.
In Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 (5 May 2011), the Court of Appeal held that although the Act required the appellant to prove on the balance of probabilities that no suitable employment existed, in which he could earn 60% or more of his pre-injury earnings, they considered that SPC bore an evidentiary onus to adduce evidence that there were other jobs in the Mooroopna area for which the appellant was suited.
144 In this case I accept that the defendant has discharged this evidentiary onus because even if there are no suitable jobs for the plaintiff in Heathcote, there are jobs which are suitable in Bendigo, Killen or Wallen. I also accept that the plaintiff is capable of driving to these towns for the purpose of work.
145 The effect of the requirements in s 134AB(38) of the Act are that to establish that she has suffered a loss of earning capacity the plaintiff has to satisfy the test in paragraphs (e)(i) and (ii); specifically, she must establish that her post-injury earning capacity is at least 40 per cent less than her pre-injury earning capacity, and that she will continue permanently to have such a loss of earning capacity. The plaintiff has not satisfied this requirement, and consequently, I refuse her application for leave with respect to loss of earnings.
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