Connors v Victorian WorkCover Authority
[2020] VCC 1358
•8 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-00054
| DANIEL JOHN CONNORS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 August 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 8 September 2020 | |
CASE MAY BE CITED AS: | Connors v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1358 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the left shoulder – whether the pain and suffering consequences are “serious” – whether the concurrent medical conditions of the plaintiff’s lower back, left hip and left foot contribute to his pain and suffering consequences – whether the plaintiff’s age and infirmity contribute to his pain and suffering consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335; Evidence (Miscellaneous Provisions) Act 1958, s42
Cases Cited:Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26
Judgment: The plaintiff has leave to bring a proceeding to recover damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J C Plunkett | Slater & Gordon Ltd |
| For the Defendant | Mr D Churilov | IDP Lawyers Pty Ltd |
HIS HONOUR:
Introduction
1 The plaintiff commenced employment with the Department of Human Services in August 1999 as a disability worker. From about 2016, he worked at a residential unit in Preston. He suffered injury to his left shoulder as a result of physically manoeuvring heavy sliding doors at the unit. He noticed that on 5 March 2017, he had developed increasing pain in his left shoulder as a consequence of opening and closing the sliding doors.
2 The plaintiff submitted that the pain and suffering consequences of the impairment of function of his left shoulder satisfy the statutory test of seriousness. The defendant denied that was so, and added that there were other concurrent medical conditions, as well as the plaintiff’s age, which contributed to his impairment of function and consequences. The defendant submitted that on any view, the plaintiff could not satisfy the statutory test of seriousness.
Appearances
3 Mr J Plunkett of counsel appeared for the plaintiff. Mr D Churilov of counsel appeared for the defendant.
4 Both parties consented to the proceeding being conducted remotely. I was satisfied that the technical requirements referred to in s42G of the Evidence (Miscellaneous Provisions) Act 1958 were met. I then directed that pursuant to s42E(1) of that Act, that the parties appear, give evidence and make submissions in the application by audio-visual link.
The Plaintiff’s medical treatment
5 Neither the plaintiff nor the defendant spent any effort in traversing the medical evidence relevant to the plaintiff’s treatment nor the opinions of the medico-legal specialists who were retained to comment on the nature and extent of the injury to the plaintiff’s left shoulder. That was so, because there is little or no controversy in any of the medical evidence. Therefore, I propose to expend as much effort as did the plaintiff and the defendant in providing only a short summary of the medical evidence.
6 The plaintiff first saw Dr Abid-Ur Rahman, general practitioner, on 6 March 2017. He referred the plaintiff to have an ultrasound, which was undertaken on 7 March 2017.[1] The report of the radiologist disclosed that the ultrasound detected mild subacromial bursal fluid and thickening consistent with bursitis, and a 2-centimetre full-thickness tear of the supraspinatus insertion.
[1]Plaintiff’s Court Book (“PCB”) 43
7 On 15 March 2017, Dr Rahman referred the plaintiff to have an ultrasound-guided left subacromial bursal injection.[2] The plaintiff said it provided him with no relief from the pain he was experiencing.[3] He was also referred to have physiotherapy. He had five sessions of physiotherapy.
[2]PCB 44
[3]PCB 13
8 At some point, the plaintiff commenced seeing Dr David Wilson, general practitioner. He referred the plaintiff to Mr Stephen Doig, orthopaedic surgeon. The plaintiff saw Mr Doig once on 17 April 2018. He provided a report dated 6 September 2018.[4] Mr Doig considered that the plaintiff had suffered a full-thickness tear of the left rotator cuff. Mr Doig considered that the injury was likely to restrict the plaintiff in his employment where it involved lifting, pushing, pulling, carrying or using ladders. He considered that the plaintiff’s prognosis was moderate, and he added that it was possible that the plaintiff would require surgery in the future if he was unable to cope with the condition of his left shoulder as it was at the time when Mr Doig saw him. Mr Doig described the types of surgery which might be contemplated if surgery became a viable option. The plaintiff has not returned to see Mr Doig, and it was my strong impression that surgery has not been contemplated by the plaintiff nor is there any other medical opinion suggesting that it should be.
[4]PCB 47-48
9 Dr Wilson provided a report dated 10 September 2018,[5] in which he noted that at the time he provided the report, the plaintiff was not having any treatment. He gave a similar opinion to Mr Doig, that the plaintiff was not able to engage in tasks involving pushing, pulling or lifting, nor the use of ladders. He considered that he was not fit for his pre-injury employment. He then referred to the plaintiff’s restrictions with respect to recreational and domestic tasks. He noted that the plaintiff was not playing golf any longer, and was able to engage in domestic activities using his right hand.
[5]PCB 45-46
The medico/legal assessments
10 The plaintiff has been examined by a fair number of orthopaedic surgeons. I will briefly refer to some of that medical evidence:
For the Plaintiff
· Mr Garry Grossbard, orthopaedic surgeon, examined the plaintiff on 17 September 2018, and provided a report dated 18 September 2018.[6]
· Mr Russell Miller, orthopaedic surgeon, examined the plaintiff on 3 June 2020, and provided a report dated 8 June 2020.[7]
[6]PCB 49-52
[7]PCB 53-59
For the Defendant
· Mr Pease, orthopaedic surgeon, examined the plaintiff on 18 July 2017, and provided two reports, dated 18 July 2017[8] and 20 July 2017.[9]
[8]PCB 4-8
[9]Defendant’s Court Book (“DCB”) 13
· Associate Professor Miron Goldwasser, orthopaedic surgeon, examined the plaintiff on 18 April 2018, and provided a report dated 20 April 2018.[10]
[10]DCB 15-21
· Dr Gale Curtis, orthopaedic surgeon, examined the plaintiff on 20 June 2018, and provided a report dated 26 June 2018.[11]
[11]DCB 25-30
· Dr Bruce Love, orthopaedic surgeon, examined the plaintiff on 10 September 2018, and provided a report dated 13 September 2018.[12]
· Mr John Salmon, orthopaedic surgeon, examined the plaintiff on 30 June 2020, and provided a report dated 30 June 2020.[13]
[12]DCB 33-40
[13]DCB 42-46
11 A difference in the opinions of the orthopaedic surgeons appears to be whether the plaintiff’s injury is a new injury[14] or whether it is an aggravation of constitutionally-based generative changes.[15]
[14]Mr Doig, Mr Pease, Dr Curtis and Mr Miller were of that opinion
[15]Associate Professor Goldwasser, Dr Love, Mr Grossbard and Mr Salmon were of that opinion
12 A further difference in the opinions is what each of the orthopaedic surgeons have made of the extent of the left shoulder injury on the plaintiff. For example looking at the most recent examinations, Mr Salmon considered that the plaintiff’s symptoms were relatively mild, and given the plaintiff’s fairly sedentary lifestyle, that the imposition caused by the left shoulder injury on his lifestyle was fairly minor. Mr Miller, on the other hand, considered that the plaintiff had experienced a poor response to conservative treatment, and that if untreated, the prognosis for his left shoulder injury is poor. He subscribed to a similar view as expressed by Dr Wilson and Mr Doig, that the plaintiff would have difficulty with identified physical tasks. He considered that the plaintiff would have difficulty with large amounts of repetitive left arm actions, use of his left arm above shoulder height and lifting of weights of more than 10 kilograms.
13 Despite the difference in the medical evidence relevant to the extent of the plaintiff’s left shoulder injury and the circumstances under which he would experience difficulty, I think the plaintiff and the defendant took a sensible approach, inviting me to concentrate on the impairment consequences contended for by the plaintiff. I propose to do just that.
The cancer
14 The plaintiff had the great misfortune to contract prostate cancer. There is very little in the medical evidence about the cancer condition. It would appear that it was diagnosed in about January 2018.[16] Subsequently, the plaintiff underwent radiotherapy which successfully treated the cancer. It would appear that the treatment ceased in or about October 2018.[17]
[16]Transcript 26-27
[17]Transcript 26-27
15 It would appear that the plaintiff was advised by the medical practitioners who were treating the cancer that the treatment had succeeded in curing the cancerous condition. Following his receipt of that advice, he moved to live permanently in Thailand, leaving Australia on 17 October 2018.[18]
[18]Transcript 54
The consequences
16 The plaintiff was born in June 1942. He is now seventy-eight years of age. He is a permanent resident of Thailand. He lives with his female partner in rented accommodation. His partner is forty-seven years of age. He moved to Thailand because of the cheaper standard of living. He is able to live adequately on his receipt of an Australian pension.[19]
[19]PCB 18 and Transcript 28 and 30
Pain
17 The plaintiff says that he suffers constant fluctuating left shoulder pain which is made worse with activity. The movements of his left shoulder are limited. He experiences a clicking sensation in the left shoulder. He has lost strength in his left arm. As a result of the difficulties with his left shoulder and arm, he has become more reliant on his right arm. He is left arm dominant.[20]
[20]PCB 14-15
18 The plaintiff estimated that if he is just sitting around doing nothing that the pain might be a 5-6 out of 10. It will go to 9 out of 10 if he suffers an aggravation which can occur with doing something as simple as putting on a shirt, reaching above shoulder height or rolling onto his left side at night when in bed.[21]
[21]PCB 19
19 Under cross-examination, the plaintiff acknowledged that he has a largely sedentary lifestyle. He acknowledged that the weather conditions in Thailand have a lot to do with that lifestyle. He described that during the day the level of pain that he has in his left shoulder is dull, however, he added that he might suffer a bit of a flareup of pain.[22]
[22]Transcript 51
Sleep
20 The plaintiff says that he is woken every night by left shoulder pain. If he rolls onto his left side he will wake because of pain. Once woken by pain it takes him some time to get back to sleep.[23]
[23]PCB 15
Restricted movement
21 The plaintiff says that he is very restricted in his ability to undertake heavy lifting with his left arm. He struggles with activities requiring the use of his left arm overhead. He finds forceful pushing and pulling will aggravate the condition of his left arm, and activities requiring repetitive use of his left arm above shoulder level will cause pain in his left shoulder.[24]
[24]PCB 15
22 The plaintiff says that he has difficulty putting on long-sleeve tops due to the pain that such movements create in his left shoulder.[25]
[25]PCB 15
23 Although, the plaintiff appears to have given up driving a motor vehicle some time ago, he found that he suffered increased pain in his left shoulder when he drove for long periods of time which saw him avoid making long trips. It was the holding of the steering wheel in a fixed position which caused the pain.[26]
[26]PCB 16
24 One of the examples the plaintiff gave of physical difficulty resulting from the injury to his left shoulder was getting up out of a chair. He says that he experiences pain every time he gets up out of a chair, describing the need to give himself a boost using his arms to get up out of a chair.[27] He estimates that he would get up out of a chair about thirty times per day to, for example to go to the toilet, or find himself something to eat and drink.
[27]PCB 20-21
Medical treatment
25 The plaintiff now resorts to naturopathic treatment provided by Mr Arogoya Bed, naturopath, in Thailand. Mr Bed prescribes the plaintiff traditional Thai herbs and medicines. The plaintiff takes that medicine twice per day which he says helps with the pain, which I presume to mean that it gives him pain relief.
26 The plaintiff has a preference for treatment by alternative medicine. He qualified as a herbalist in 1989. He has a passion for alternative medicine, and obviously has a serious belief in its merits as a form of treatment. He has avoided the use of conventional analgesics, believing that alternative medicine does a better job of correcting balances in the body than the use of conventional analgesics.[28] The plaintiff said that he has not used either over-the-counter or prescription medication over the last eighteen months.[29]
[28]PCB 18
[29]Transcript 16
Golf
27 The plaintiff was a member of the Goonawarra Golf Club in Sunbury.[30] He was a passionate golfer. He estimates that between the age of forty-five and seventy that he played two rounds of golf per week. He was the club champion in 1997 when he was fifty-five years of age.[31] He reduced the extent to which he played golf down to about once a month as a result of moving house, from where he lived close to his golf club, to Glenroy, where he played at a public course.[32]
[30]Transcript 56
[31]PCB 19 and Transcript 56
[32]PCB 19 and Transcript 55-56
28 As a result of the injury to his left shoulder, the plaintiff says that he has not been able to play golf at all. It is something which greatly upsets him. It has also prevented him from undertaking regular low intensity exercise which he considers important for a man of his age. He has not been able to resume playing golf in Thailand.[33]
[33]PCB 20
29 Under cross-examination, the plaintiff was asked whether he attended sporting venues as noted by Mr Grossbard. The plaintiff said that he did not, which is contrary to what was recorded by Mr Grossbard. He watched sporting contests on television.[34]
[34]Transcript 32-33
Domestic tasks
30 The plaintiff says that the problems he has with his left shoulder prevent him from helping around the house where he lives with his female partner. He now relies more heavily on her when it comes to washing clothes, cooking and cleaning.
31 The plaintiff candidly emphasised that because of his age, he now spends most of his time inside sitting down. That has occurred because of the oppressive weather conditions in Thailand and because of his age.[35]
[35]PCB 20
32 Under cross-examination, the plaintiff said that he was able to undertake necessary domestic tasks when he lived in rented accommodation in Australia; however, he said that he did not do any manual or heavy lifting like moving furniture. He was aware of lifting. He used his right hand more than his left hand when he undertook cooking. He was able to do the lighter tasks, but nothing strenuous.
33 The plaintiff acknowledged that in his present domestic circumstances, his female partner washes, cooks and cleans for him, although, he added that the change in his domestic living arrangements have occurred because “I cannot cook, I cannot lift, I cannot clean, I cannot wash clothes”. I understood that to be due to the problems he has with his left shoulder. He added that the house in which he and his female partner live in is a large house which he would find too strenuous to mop.[36]
[36]Transcript 33-36
Work
34 In the plaintiff’s first affidavit, he said that he gave notice of his intention to retire in January 2018, and then retired on 3 March 2018. He then said that he was working normal hours on modified duties. A plain reading would lead to the conclusion that in between giving notice and the date of his actual retirement was the period when he returned to work on normal hours performing modified duties.[37]
[37]PCB 14, paragraph 17 of the affidavit
35 Under cross-examination, there emerged some real confusion about what the plaintiff meant. There seemed to me to be some confusion in the plaintiff’s mind in the use of the words “employment” and “working”. I endeavoured to resolve that by asking a series of questions directly of the plaintiff. I was left with the strong impression that after the plaintiff gave his intention to resign, he did not return to the workplace and perform any work tasks, but he remained employed. He was paid WorkCover weekly payments which ceased some time prior to 3 March 2018 which he was able to recover at some later point.[38]
[38]Transcript 24-25
36 Under cross-examination, there was another potential level of confusion relevant to the plaintiff’s plans to migrate to Thailand to live out the rest of his days, or whether he would have continued working in some form of employment if he had not suffered the left shoulder injury. The plaintiff described himself as being a fit and healthy person. He said he would have continued working; he would even be working now.[39]
[39]Transcript 27 and 29
37 I can well understand the plaintiff’s concern that he did not have sufficient financial resources behind him to retire comfortably in Australia. I can also well understand that his fondness for Thailand saw him travelling there up to fifty times before he finally migrated there;[40] however, I think it is less probable that the plaintiff would be working now. I think it is probable that he would have reached a point where he would have ceased work and migrated to Thailand to fulfil his plans to live out his days in Thailand where his financial resources and pension would provide him with more comfortable living circumstances.
[40]Transcript 14
38 That is not to say, however, that the plaintiff would not have continued working for some time beyond the date that he ultimately retired on 3 March 2018. I accept that his decision to do so was probably influenced by having suffered the left shoulder injury.
Concurrent medical conditions
Lower back
39 The defendant relied upon the observation made by the Court of Appeal in Peak Engineering Pty Ltd & Anor v McKenzie[41] that where there are other medical conditions concurrently producing pain and suffering consequences, that it will ordinarily be necessary to make findings about all the pain and suffering consequences which are operative at the date of the trial as an essential precondition to the task of deciding which of the pain and suffering consequences are attributable to the claimed injury or the other medical conditions.
[41][2014] VSCA 67 (“Peak Engineering”)
40 The three medical conditions to which the defendant referred were the plaintiff’s lower back, left hip and left foot.
41 The defendant referred to a clinical note of Dr Wilson dated 7 September 2011.[42] The plaintiff saw Dr Wilson, complaining of lower back pain which had troubled him for some years. On the occasion that he saw Dr Wilson, he gave a history of his lower back seizing up on him three times over the previous year. He was referred to have a CT scan in the latter half of 2011.[43] Under cross-examination, the plaintiff appeared to agree that he had suffered lower back pain for some decades.
[42]DCB 127
[43]Transcript 37
42 Under cross-examination, the plaintiff said his lower back causes him a slight bit of pain, but does not worry him too much.[44] He was then referred to a history recorded by Mr Miller that the plaintiff told him that he had previous problems with his lower back for which he had received conservative treatment; the symptoms continuing largely unchanged, and that he had “occasional severe flares of symptoms”.[45] The plaintiff said that he would have told Mr Miller that he had occasional flareups, but denied that he described them as severe. He added that he does experience back pain occasionally, and his estimate is that the pain is a 1 or a 2 out of 10, describing his lower back pain as not being a problem for him.[46]
[44]Transcript 37-38
[45]PCB 56
[46]Transcript 39-42
43 Under further cross-examination, the plaintiff denied that his lower back problem impedes his performance of domestic tasks at present or would impede his capacity to play golf.[47]
[47]Transcript 42-43
Left hip
44 Under cross-examination, the plaintiff said that he suffered from bursitis in his left hip. He understood that to be fluid between the muscle and bone area of his left hip. He agreed that he saw Dr Wilson prior to travelling to Thailand, complaining of left hip pain for some weeks. Under cross-examination, the plaintiff said that he suffered swelling in his left foot. He said that he still has some fluid in his foot which he described as oedema. He agreed that he was referred to have an ultrasound of his left foot.[48]
[48]Transcript 43-44
45 Under further cross-examination, the plaintiff said that both the problems with his left hip and left foot affect the way he walks and performs housework, but he denied that either would affect him playing golf.[49]
[49]Transcript 45-46
Ageing
46 Under cross-examination, the plaintiff was asked about whether he would be able to continue with the activities he is presently capable of performing by reason of the onset of ageing, and in particular, whether he would still be playing golf at seventy-eight years of age and into the future. He said that he regards himself as being very healthy for his age, that he still has “heaps of energy” and would still pursue playing golf.[50]
[50]Transcript 46-47
Disposition
47 I will firstly deal with the defendant’s submission that the concurrent medical conditions demonstrate a failure by the plaintiff to discharge a relevant onus referred to in Peak Engineering. I disagree.
48 Firstly, the impression I was left with after the plaintiff was cross-examined about the impact of his pre-existing lower back condition is that he has tolerated it well, and despite the level of pain he has experienced and occasional flareups, that it has not impeded his capacity to work and play golf, and to otherwise engage in activities which were part of his life, and indeed even now.
49 Secondly, although I accept that the left hip and left foot interfere with the plaintiff’s capacity to walk and in performing housework, the cross-examination stopped short of demonstrating the level of that interference. The strong impression I have is that the major interference with the plaintiff’s capacity to function domestically is his left shoulder, and indeed, that is well supported in the overall thrust of the plaintiff’s evidence.
50 I am not satisfied that there is much in the defendant’s submission that the plaintiff has failed to discharge the onus he bears described in Peak Engineering relevant to the plaintiff’s lower back, left hip and left foot.
51 Additionally, the defendant submitted that the plaintiff’s ageing has deprived him of a level of functioning which I should treat as being something akin to the principle it relied on referred to in Peak Engineering. The defendant relied upon Hawkins v DHL Express (Australia) Pty Ltd[51] as authority for that proposition. Tate JA referred to the relative importance of youth and age in the context of their importance in the duration of consequences of an injury when determining whether the impairment consequences are “serious”. I do not accept that what was said in Hawkins in some way interferes with the process of reasoning which I must undertake, which is to identify the consequences of the impairment of the function of the plaintiff’s left shoulder.
[51][2013] VSCA 26 ("Hawkins")
52 Just as a youthful injured worker may argue that the consequences of the impairment of function are all the more serious because they will be endured for such a long period of time over the balance of the worker’s life, so I think it is logical and commonsense that a person who is much older and in the twilight of their life may argue that enduring the twilight of their life will be made just that much harder by having to carry the impairment of function resulting from a compensable injury.
53 I accept that the plaintiff has an actively symptomatic left shoulder which results in each of the consequences which I have summarised from his affidavits and his oral evidence. I have no hesitation in accepting his evidence in whole, and indeed, I am fortified in accepting his evidence in that way, because no attack was made upon his creditworthiness and reliability. Even if one were made, I would not be satisfied other than the plaintiff is an utterly creditworthy and reliable witness who I think has given a good account of himself.
54 I accept that the impairment consequences of the plaintiff’s left shoulder are “serious” and I will now disclose my pathway of reasoning in reaching that conclusion.
55 Firstly, the plaintiff has suffered an impairment of the function of his left shoulder which has resulted in him not only suffering a level of daily dull pain, but also renders him vulnerable to suffering flareups. The vulnerability to the onset of worsening pain is demonstrated vividly by the fact that if he rolls over onto his left side when in bed, it will result in pain which will wake him. The observation has been made that interference with sleep is of itself something of real significance, and it would appear to me that is the case with the interference caused to the plaintiff by being woken from his sleep.
56 Secondly, one of the measurements of whether an impairment of function has consequences which are “serious” is whether the plaintiff continues to have medical treatment and continues to consume painkilling medication. The plaintiff, whether advisable or not, is a believer in the benefits of alternative medicine. Whilst he may not be seeing a Western-style medical practitioner, he is seeing a naturopath, who provides him with alternative preparations which the plaintiff has a sincere belief is ameliorating the pain he experiences.
57 Thirdly, the limitations on the plaintiff’s capacity to move his shoulder freely are demonstrated vividly in the medical evidence in which there are a sufficient number of opinions that forceful movements and above shoulder movements should be avoided by the plaintiff. Additionally, and rather more vividly, is the plaintiff’s evidence that giving himself a boost to get out of a chair is just the sort of activity which he must perform repetitively and on a daily basis which produces pain in his left shoulder.
58 Fourthly, the plaintiff had an undoubted love of golf. To have been a club champion is of itself a remarkable achievement. To now not be able to play golf at all is a monumental loss. It not only gave the plaintiff great pleasure, but it was a form of exercise which he enjoyed.
59 Fifthly, I accept the plaintiff’s evidence that he would have liked to have continued working, but his decision to do so was influenced by the occurrence of his left shoulder injury which brought a premature end to his employment; however, I am not convinced that the plaintiff would have worked for much longer than the time when he actually retired, and I am not convinced he would still be working now.
60 Sixthly, I think for a person who was entering the twilight of their years to carry into that twilight an impairment of function, which will inevitably make enduring other medical conditions that will come his way more onerous, makes the impairment of function of the plaintiff’s left shoulder all the more serious in my view.
61 It is for these reasons that I have concluded that the plaintiff’s pain and suffering consequences are, when judged by comparison with other cases in the range of possible impairments or losses of the body function, as the case may be, fairly described as being “more than significant or marked” and as being “at least very considerable”.
- - -
0
2
0