Cooper v Victorian WorkCover Authority and Patrick Stevedores Holdings Pty Ltd
[2015] VCC 737
•23 July 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-02819
| PAUL COOPER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | First Defendant |
Case No. CI-13-01885
| PAUL COOPER | Plaintiff |
| v | |
| PATRICK STEVEDORES HOLDINGS PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 November 2014 | |
DATE OF JUDGMENT: | 23 July 2015 | |
CASE MAY BE CITED AS: | Cooper v Victorian WorkCover Authority & Patrick Stevedores Holdings Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 737 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – Shoulder injury – Pain and suffering only – Separate incidents – Course of employment – Change of insurance arrangements by employer
Legislation Cited: Accident Compensation Act 1985 s134AB; Workplace Injury Rehabilitation and Compensation Act 2013 ; Transport Accident Act 1986
Cases Cited:Peak Engineering v McKenzie [2014] VSCA 67; Lu v Mediterranean Shoes (2000) 1 VR 511; Lianos v Inner & Eastern Health Case Network (2001) 3 VR 136; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted in both originating motions.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G E Chancellor | Maurice Blackburn Lawyers |
| For the First Defendant | Mr P J Hayes | Russell Kennedy Lawyers |
| For the Second Defendant | Ms F A L Ryan | Moray & Agnew Lawyers |
HIS HONOUR:
Introduction
1 Paul Cooper seeks leave to commence a damages proceeding against Patrick Stevedores Holdings Pty Ltd (“Patricks”), his former employer, in relation to a right shoulder injury. The leave sought is limited to the pain and suffering consequences of his injury.
2 Unusually, he has sought leave in two separate applications. He is currently 57 years of age and had worked for Patricks between 2000 and early 2009. He was not currently working at the time the application was heard, but acknowledges a residual capacity for suitable employment.
3 The applications before me identified specific incidents suffered by Mr Cooper in August 2005 and March 2007. Both of these incidents involved Mr Cooper’s dominant right shoulder. The medical material relied on by the plaintiff is common to both applications. Reference was also made to a third incident occurring in May 2007 which was the subject of an application under the provisions of s.93 the Transport Accident Act 1986. This application was determined separately and was not directly relied upon by the plaintiff in the present application.
4 There was no dispute between the parties that the plaintiff remained in continuous employment with Patricks during the entirety of the period between 2000 and 2009. During this period the insurance arrangements for Patricks changed, apparently prompting separate applications for leave. The manner in which the hearing was conducted before me by the plaintiff requires me to make findings in relation to each of the applications.
5 The defendants accepted such a course, and each conducted a defence of the plaintiff’s claim as though there had been separate and distinct entities employing the plaintiff at the time when each of the relevant incidents occurred.
6 Mr Chancellor of counsel, who appeared on behalf of the plaintiff, acknowledged that the first incident fell within the period when the employer was insured by VWA, and the second incident at a time when it was a self-insurer. Nevertheless, Mr Chancellor made it clear that both applications relied upon “a ‘throughout the course of employment’ injury with two events where it seems to get worse but is effectively contributed to by the reaching, stretching throughout the whole course of the employment”.[1]
[1]Transcript (“T”) 3, Line (“L”) 20–28
7 Counsel for each defendant highlighted the relevance of the transport accident suffered by the plaintiff in May 2007, in addition to denying that the plaintiff could prove serious consequences flowing from the injury said to have been suffered during those portions of the plaintiff’s employment relevantly concerning their respective clients.
8 Mr Cooper was the only witness required for cross-examination. The parties otherwise tendered medical material from their respective Court Books.
The evidence
9 The plaintiff swore two affidavits in support of his application on 21 November 2012 and 17 April 2014.[2] I regarded the following matters as relevant to my decision:
[2]Exhibit A, pages 11–23
· Mr Cooper completed Year 11 and thereafter worked in clerical and sales representative positions, including seven years as a sales manager employed by Mitsui OSK Lines up until 2000.
· He is right-hand dominant.
· After joining Patrick’s he worked as a driver/forklift driver/lasher, with his main duty involving transferring vehicles on and off ships. This involved moving in tight spaces when lashing or unlashing vehicles, and was described as “difficult and awkward work”.[3]
[3]Exhibit A, page 12 [5]
· He initially suffered injury on 8 August 2005 when lying on his back reaching under a vehicle, attempting to reduce tension on a lashing strap. He felt pain in his right shoulder.
· Following the first incident he was sent to a medical clinic but continued working. He tended to favour his left arm.
· Following the first incident the plaintiff “tried to avoid the more awkward aspects of the work as much as possible. I had to give up my regular training and games of lacrosse and also my occasional soccer, tennis and squash and my regular kayaking because of my symptoms.”[4]
[4]Exhibit A, page 13 [7]
· During October 2005 Mr Cooper attended two general practitioners and an orthopaedic surgeon, and underwent an ultrasound-guided bursal injection. He was referred for physiotherapy and continued with his normal work, despite requesting lighter duties.
· In January 2006 he had a further injection into the right shoulder, which made little difference: “The physiotherapy was not helping that much either.”[5]
· He saw the orthopaedic surgeon (Mr Byrne) again in May 2006 and had a further ultrasound in July 2006. This was stated as showing a partial thickness supraspinatus tear, together with other abnormalities. Surgery was recommended, but Mr Cooper “didn’t want to risk taking time off work to have surgery so I continued at work. I was struggling with my work duties.”[6]
[5]Exhibit A, page 14 [12]
[6]Exhibit A, page 14 [14]
10 Mr Cooper’s initial affidavit continued to describe the second incident, which occurred on 30 March 2007. I noted the following matters as relevant to that incident:
· Mr Cooper experienced an increase of right shoulder pain when reaching through a wheel to attach a nylon strap.[7]
[7]Exhibit A, page 14 [16]
· He attended both the Bridge Street Clinic and his own general practitioner during April and underwent a further ultrasound on 8 May 2007 which “showed similar changes to the previous ultrasound”.[8]
· Mr Cooper saw Mr Byrne again on 9 May 2007 and discussed further non-surgical treatment.
[8]Exhibit A, page 15 [19]
11 The affidavit then described the incident occurring on 17 May 2007 which involved a transport accident and described the plaintiff falling from the vehicle and suffering further injuries to areas of his body including the right shoulder. it also described Mr Cooper being taken to the Epworth Hospital and undergoing an ultrasound which showed a full thickness tear of the right supraspinatus.
12 Following this transport accident, Mr Cooper underwent surgery and subsequently developed a frozen shoulder requiring further inpatient treatment.
13 Mr Cooper’s affidavit describes a return to light duty employment for restricted hours between February 2008 until these duties were withdrawn in November of that year. The affidavit also refers to considerable use of painkilling medication including OxyContin, Endone and Tramal following the shoulder surgery in June 2007.
14 Reference is made in that initial affidavit to the impact of the shoulder injury on various recreational activities and the ongoing experience of pain and related medical treatment as at that date. The first affidavit makes no reference to the particular incidents described in leading to those consequences but rather makes reference to the overall “injury”.[9]
[9]Exhibit A, page 19 [38]
15 Mr Cooper swore a further affidavit in support of his applications on 17 April 2014. This affidavit referred in some detail to the plaintiff’s attempts at securing further employment since ceasing with Patrick’s. Additionally it describes his ongoing medical treatment and the other pain and suffering consequences of his right shoulder injury shortly prior to the hearing.[10]
[10]Exhibit A, pages 22–23 [8–10]
16 The plaintiff was cross-examined initially by Mr Hayes, representing VWA, and the following matters emerged:
·Mr Cooper was in good health prior to the incident in August 2005.[11]
·Between the first incident on 8 August 2005 and the second incident on 30 March 2007, Mr Cooper continued in the same job with Patrick’s.[12]
·The first notation by a medical practitioner relevant to the August 2005 injury was on 4 October 2005 at the Bridge Street Medical Centre.[13]
·Mr Cooper did not see his own general practitioner, Dr Gassiep, for nearly two months after the August 2005 injury.[14]
[11]T33, L12–15
[12]T34, L4–7
[13]T38, L5–11
[14]T42, L7–13
17 The interval between the 8 August 2005 incident and the first record made by a medical practitioner on 4 October 2005 was supported by an extract from Mr Cooper’s handwritten diary which was tendered as an exhibit.[15]
[15]Exhibit D1 – 1
18 Further matters noted in the cross-examination by Mr Hayes were as follows:
· Following the injury, Mr Cooper continued to work each day he was rostered on, but on limited duties.[16]
[16]T55, L10–13
· Mr Cooper had played State League lacrosse from his mid-twenties and was still playing Seniors lacrosse when working on the docks.[17]
[17]T55, L28–T56, L17
· He would accept that as he got older his playing days would diminish.[18] Mr Cooper accepted that the heavy labour as a stevedore was more physical than activities like tennis, squash and kayaking.[19]
[18]T56, L22–25
[19]T57, L2–5
· After the shoulder injury, even though he continued with his work, he could not engage in tennis, squash or kayaking.[20]
[20]T57, L6–9
· He persisted with exercise programs and swimming as recommended by Mr Byrne in 2006.[21]
[21]T58, L1–13
· Between August 2005 and July 2006 Mr Cooper was able to go to the gym and do swimming and exercises to strengthen his arm in the hope of avoiding surgery.[22]
[22]T60, L24–31
· Mr Cooper had injections into his shoulder on 28 October 2005 and 5 January 2006.[23]
[23]T62, L16–27
· Mr Byrne recommended surgery to Mr Cooper on 11 May 2006.[24]
[24]T62, L31–T63, L1
· After the incident of August 2005 Mr Cooper maintained that he had a stiff sore shoulder but went to work and worked through it.[25]
[25]T65, L5–6
· He did not agree that the injury on 8 August 2005 only produced a level of mild discomfort.[26]
[26]T65, L27–T66, L1
· Mr Cooper disagreed that he had avoided seeing Mr Byrne between May 2006 and May 2007 on the basis that his shoulder was getting better and was improving.[27]
[27]T85, L21–30
· He did agree that surgery was not performed until after he suffered the third injury, falling out of the people mover.[28]
[28]T86, L6–8
· Mr Cooper declined to have surgery at an early stage following his 2005 injury, as it would require him to be off for six months, possibly longer, with no guarantee of success, and as a casual worker he could not afford to take the time off.[29]
[29]T89, L2–5
· Mr Cooper agreed that he had told Mr Byrne in May 2007 that he had been coping quite well with his symptoms, was able to manage his job, had not taken any time off work, and still had pain on raising his arm above his head.[30]
[30]T91, L14–21
· Mr Cooper did not agree that by July 2006 his 2005 injury was “well on the way to being healed”.[31]
[31]T93, L21–23
· By the time of the second incident on 30 March 2007 Mr Cooper again rejected the suggestion that “your shoulder was well on the way to being healed”.[32]
[32]T93, L29–31
· Mr Cooper agreed that his general practitioner had not prescribed analgesics prior to the second incident on 30 March 2007, and as at that date he was not receiving physiotherapy.[33]
[33]T100, L13–18
· The work being performed at Patrick’s after the 2005 incident involved lifting weights from between 20–25 kilograms.[34]
· Mr Cooper did not tell doctors that he had suffered a repetitive strain injury or a particular discrete injury, but rather that he had injured his shoulder.[35]
[34]T104, L5–10
[35]T104, L22–T105, L5
19 At the conclusion of cross-examination Mr Hayes tendered into evidence extracts from the clinical notes of Dr Gassiep from 5 October 2005 to 6 July 2007.[36]
[36]Exhibit 1D – 2
20 Mr Cooper was further cross-examined by Ms Ryan. I noted the following matters of evidence arising from that cross-examination:
· After the August 2005 injury Mr Cooper was told by Dr Gassiep that the ultrasound showed a partial tear of the right shoulder tendon; he was sent to Mr Byrne on a few occasions and had a couple of injections into the right shoulder and did gym exercise and swimming. He continued to work on full-time duties “managing to find a way around his shoulder”.[37]
[37]T105, L29–T106, L14
· On 30 March 2007 he was reaching through a wheel when he had an exacerbation of his shoulder pain, and went on light duties for a week before returning to normal duties as directed by Patrick’s.[38]
[38]T106, L19–23
· He saw Mr Byrne on 9 May 2007 following an ultrasound on 8 May 2007, and was told by Mr Byrne that the partial tear in his shoulder had not progressed.[39] He continued to perform normal duties, working around the shoulder, until the transport accident of 17 May 2007.[40]
· After the transport accident when he fell out of the people mover he had no choice but to have the shoulder surgery.[41]
[39]T106, L28–T107, L14
[40]T107, L24–27
[41]T107, L28–31
21 Mr Cooper was briefly re‑examined and explained that he had been playing lacrosse during the summer season in 2005, being involved training the juniors and also playing lacrosse. He was at that stage “because of work commitments or whatever but over the previous two years roughly every fortnight ... it was a mixture of senior and a lower grade.”[42]
[42]T109, L4–8
22 Following the incident on 8 August 2005 Mr Cooper could not play lacrosse.
23 Mr Cooper was dominantly right-handed.
24 The plaintiff tendered various medical reports and other material from its court book which are fully described in Exhibit A. In addition to medico-legal reports obtained by the plaintiff’s solicitors, Mr Chancellor relied upon further affidavit material and medical reports obtained on behalf of both the employer and the Transport Accident Commission as part of the plaintiff’s case. I will refer to this material later in the judgment.
25 Mr Hayes and Ms Ryan also tendered material from the court books provided by VWA and Patrick’s which were identified as Exhibits 1D – 3 and 2D – 1. Reference will be made to this material under the heading of Analysis.
Analysis
26 The totality of the evidence advanced by the plaintiff in each application supports a conclusion that Mr Cooper initially injured his dominant right shoulder in the course of his employment with Patricks in August 2005. Such a conclusion is supported by the initial opinion of the general practitioner, Dr Gassiep, in his report dated 22 July 2008.[43] It is also consistent with a noted recorded by Dr Bloom at the Bridge Street Clinic on 4 October 2005.[44]
[43]Exhibit A, pages 24 – 25
[44]Exhibit A, page 47B
27 The ultrasound examination performed on Mr Cooper on 6 October 2005 was said to reveal a partial tear involving the supraspinatus tendon attachment. The note by the radiologist at that time was: “The patient was unable to abduct his arm beyond 70 degrees.” [45]
[45]Exhibit A, page 49
28 Mr Cooper was referred by Dr Gassiep to Mr Patrick Byrne, orthopaedic surgeon, who saw him in October 2005. Mr Byrne’s brief note to Dr Gassiep is also tendered in evidence in this proceeding.[46] It would seem at that time that Mr Byrne diagnosed “right subacromial impingement” and advised an injection and physiotherapy as the first line of treatment.
[46]Exhibit A, page 36
29 Further correspondence between Mr Byrne and Dr Gassiep during the early part of 2006 did not pain an optimistic picture for the plaintiff. On 11 May 2006, Mr Byrne noted:
“He is having ongoing symptoms in his right shoulder. I have recommended an open right rotator cuff repair and will list for South Eastern Private Hospital as soon as WorkCover approval obtained.”[47]
[47]Exhibit A, page 38
30 Mr Byrne next reviewed the plaintiff in May 2007, noting ongoing impingement in the right shoulder and referring him for a further steroid injection and a recommencement of his swimming program. Significantly, there is no notation by Mr Byrne of any specific further aggravation of the condition and particularly no reference to any incident of consequence occurring in March of that year.
31 By way of contrast, Mr Byrne’s next report dated 27 May 2007 made specific reference to the fall at work on 17 May 2007 which resulted in a full thickness tear of the right rotator cuff.[48] It is clear from the subsequent correspondence to both the employer and Dr Gassiep in late 2007 and early 2008 that the incident in May 2007 at the very least brought forward the timing of surgery to Mr Cooper’s right shoulder.
[48]Exhibit A, page 40
32 Mr Byrne’s only formal medical report to the plaintiff’s solicitors was prepared in April 2009.[49] Although that report makes reference to the incident occurring in March 2007, it is clear that the initial incident in 2005 and the fall in May 2007 are central to Mr Byrne’s opinion. Curiously, while Mr Byrne makes reference to the plaintiff presenting on 27 May 2007 with “a repeat ultrasound of his right shoulder which reported a full thickness tear of the right supraspinatus”[50] no such report was contained in the Plaintiff’s Court Book or tendered in evidence before me. Nevertheless, I have no reason to doubt the accuracy of Mr Byrne’s report which is consistent with the plaintiff’s right shoulder worsening considerably in May 2007. The plaintiff has tendered into evidence an ultrasound report of 8 May 2007[51] which shows a “partial thickness tear involving the anterior third of the supraspinatus fibres with mild subdeltoid bursitis”. This ultrasound predated the fall of May 2007.
[49]Exhibit A, pages 43 – 46
[50]Exhibit A, page 44
[51]Exhibit A, page 52
33 The plaintiff tendered into evidence two medico‑legal reports from Mr John O’Brien, orthopaedic surgeon, dated 19 March 2014 and 9 May 2014.[52] Mr O’Brien examined Mr Cooper on 19 March 2014 and recorded a history which is generally consistent with the factual evidence concerning the various episodes impacting Mr Cooper’s right shoulder. In relation to the first incident in August 2005, Mr O’Brien opined: “The subsequent clinical course and investigations appear to confirm rotator cuff pathology which it would appear was responsible for ongoing shoulder pain.”[53] He makes no reference particularly in his opinion to the further incident of March 2007 but does describe the transport-related incident which occurred in May of that year.
“The subsequent work incident when the patient was thrown out of the car resulting in a significant fall, appears to have resulted in extensive shoulder pathology involving the rotator cuff and bone of the greater tuberosity as identified in the operative findings.”
[52]Exhibit A, pages 53 – 60
[53]Exhibit A, page 56
34 He also describes the development of adhesive capsulitis and ongoing restriction following that surgery.
35 Mr O’Brien provided a supplementary report to the plaintiff’s solicitors on 9 May 2014. This report appears to have been directed towards identifying the relative contribution of the various incidents in which Mr Cooper was involved. Mr O’Brien’s opinion can be summed up as follows:
·Following the initial 2005 incident, Mr Cooper reported requiring considerable treatment but was capable of pursuing normal employment.
·The second incident reported in 2007 was an aggravation sufficient enough to require the patient to be placed on modified duties.
·The subsequent incident in May 2007 undoubtedly precipitated further right shoulder pathology and indeed it was following this the patient underwent surgery for a complete full thickness tear of the right supraspinatus tendon in addition to the fracture of the greater tuberosity. This was followed by restricted shoulder movement.
36 Mr O’Brien expressed the general opinion that employment between mid-2005 and May-2007 was a significant contributing factor to shoulder pathology. The May 2007 incident further aggravated the pathology.
37 The plaintiff also put into evidence the certificate of opinion and reasons of the Medical Panel dated 8 April 2011.[54] These documents were tendered into evidence without objection. Had the matter been pressed, then I am mindful of the authority in Lianos v Inner and Eastern Health Care Network[55] which is authority for the proposition that the reasons given by a Medical Panel do not constitute part of a “report given by a Medical Panel” and are inadmissible under the provisions of the then s48(1) of the Accident Compensation Act 1985.[56]
[54]Exhibit A, pages 63 – 69
[55](2001) 3 VR 136
[56]Lianos [30 and 31]
38 The legislative basis for the operation of medical panels and the receipt of material into evidence by this Court is now contained in the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013. It is unnecessary to further consider the application of the Lianos principle on two bases: first, there was no objection taken to the Medical Panel reasons being tendered; and secondly, the opinion of Mr O’Brien stating that “My opinion is in full agreement with the opinion expressed in Medical Panels”[57] is not enlarged or broadened by material set out in the Medical Panel reasons.
[57]Exhibit A, page 59
39 In addition to the plaintiff’s own medical material, Mr Chancellor tendered into evidence medical reports from Mr Michael Shannon and Mr Rodney Simm, orthopaedic surgeons. These reports related to examinations conducted between March 2010 and 28 April 2014.[58]
[58]Exhibit A, Defendant’s Court Book (“DCB”) pages 59 – 68 and 95 – 102
40 In Mr Shannon’s initial report dated 23 March 2010, he stated:
“Mr Cooper has had symptoms and ultrasound evidence of a partial thickness rotator cuff tear with impingement since an initial injury in August 2005.
However, it appears that there was no significant loss of time from work and very little treatment. He sustained further injuries in 2007, ultimately resulting in a full thickness rotator cuff tear and possibly a fracture of the greater tuberosity.
I think that this is a significant injury and the injury which led to surgery which has apparently been successful in restoring his rotator cuff function, but the surgery was complicated by adhesive capsulitis requiring a manipulation under general anaesthetic.
He still has moderate restriction of shoulder movement and is permanently restricted in the performance of work involving strenuous repetitive use of the right arm, heavy lifting or work above shoulder level.
He is capable of office work and is working part time, although there is no reason why he should be unable to work full time form the point of view of his shoulder.”[59]
[59]Exhibit A, DCB pages 61 and 62
41 In his second report in April 2014, Mr Shannon commented on the Medical Panel impairment assessment and stated as follows:
“The Panel’s Impairment Assessment was 9 per cent and therefore not substantially different from my own Impairment Assessment. It would appear that the Panel, however, adopted the view that there was no reliable evidence to suggest an increase in the level of impairment from a second injury in May 2007 as opposed to the original injury in August 2005.
My view was the reverse of the Panel’s in that the substantial rotator cuff tear would appear to have occurred in the second injury, particularly noting that a fracture of the greater tuberosity was noted at the surgery which was necessitated by the second injury.”[60]
[60]Exhibit A, DCB page 64
42 Mr Simm examined the plaintiff at the request of the Transport Accident Commission for the purposes of an impairment assessment. His report was dated 4 September 2013. The history noted on that occasion is as follows:
“There is a relevant past history of a previous right rotator cuff injury with ongoing problems up until the time of the subject transport accident.”[61]
[61]Exhibit A, DCB page 97
43 Mr Simm then recorded a history of the August 2005 event in some detail including reference to the medical treatment obtained as a result of it. He goes on to note:
“There was talk about him having a right shoulder operation and liability for the procedure was sought by Mr Byrne but the operation was never done.”[62]
[62]Exhibit A, DCB page 97
44 Mr Simm also recorded a history of the March 2007 event as follows:
”On 30 March 2007 he strained his right shoulder at work and reported the injury to his supervisor. An incident report was completed and he went to the Bridge Street Clinic. There was some recommendation for light duties, but he essentially continued with normal duties. It is relevant that on 17 April 2007, Dr Gassiep wrote a referring letter to Mr Patrick Byrne in relation to the incident that occurred at work on 30 March 2007.”[63]
[63]Exhibit A, DCB page 98
45 It is significant that Mr Simm had obtained a history of both the August 2005 and March 2007 work-related incidents at the time of preparing his report to the impairment team at the Transport Accident Commission following the May 2007 transport accident. His opinion was expressed as follows:
“It would seem that as a result of the subject transport accident he aggravated the pre-existing degenerative rotator cuff pathology of the right shoulder and this resulted in a complete tear of the partially torn degenerate rotator cuff.
His condition has stabilised and will persist as described in this report with no prospect of further improvement. He does not require active treatment.”[64]
[64]Exhibit A, DCB pages 99 and 100
46 Mr Simm was asked to comment specifically on the attribution of the May 2007 transport accident and the earlier work-related incidents to the plaintiff’s right shoulder condition. He commented as follows:
“The incidents of 2005 and 2007, which occurred prior to the transport accident, predisposed him to a further rotator cuff injury, but the transport accident could be regarded as ‘the last straw’ which led to the detachment of the rotator cuff and the need for reasonably urgent surgical repair.”[65]
[65]Exhibit A, DCB page 101
47 The first defendant tendered into evidence a medical report from Dr Malcolm Brown dated 6 June 2008 as the only medical opinion on which it sought to rely. Dr Brown practises as an occupational physician. Dr Brown examined Mr Cooper on 4 June 2008. According to the list of enclosures in his report, the material provided to him all post-dated the transport accident of 17 May 2007. Dr Brown noted in brief form the history as follows:
“Accident – Mr Cooper described an initial incident in 2005 when he suffered an injury to his right shoulder, diagnosed as a rotator cuff lesion, associated with his usual work tasks. Then he suffered a recurrence of right shoulder pain when tying down a car on a ship in March 2007. He was on light duties for a week and then returned to his usual work tasks. He said his employer finds the ‘heaviest possible work’ if you are injured.
Finally in May 2007, he was a passenger in a van at the dock and as he reached to close the door, the driver moved off and he was thrown from the vehicle landing on his right shoulder.”[66]
[66]Exhibit 1D3, page 91
48 Dr Brown did make reference to the right shoulder ultrasound of 6 October 2005 later in his report, stating it to show a partial tear of the supraspinatus tendon attachment. His report dealt specifically with ongoing employment capacity and the need for medication and further treatment. There was no reference to any matters touching upon the relevant consequences flowing from the particular incidents as relevant to this application.
49 The first defendant also put into evidence extracts from Mr Cooper’s handwritten diary for the period 8 August 2005 to 4 October 2005[67] and extracts from the clinical notes from Dr Gassiep from 5 October 2005 to 6 June 2007.[68] The first defendant also tendered into evidence an affidavit sworn by Mr Cooper on 21 November 2012 together with a covering letter and the claimed particulars of injury. The documents tendered also included the serious injury certificate dated 12 September 2013 which had been granted by the Transport Accident Commission.[69]
[67]Exhibit 1D(1)
[68]Exhibit 1D(2)
[69]Exhibit 1D(3) pages 103 – 117
50 Ms Ryan on behalf of the second defendant, tendered three reports from Mr Kendall Francis, general surgeon, dated 2 November 2007, 11 February 2008 and 28 February 2013.[70] Additionally clinical notes from Mr Byrne, the treating orthopaedic surgeon, and documents relevant to the initial treatment following the May 2007 fall were also tendered into evidence.[71]
[70]Exhibit 2D(1) pages 1 – 24
[71]Exhibit 2D(2) pages 57 – 79
51 Mr Francis first examined the plaintiff on 2 November 2007 and obtained an initial history that the work that he was doing involved undoing straps/lashings used to hold cars on ship decks, which involved handling a 20 kilogram bar used to operate a screw wrench which, presumably, tightened or released the strapping. Mr Francis commented that this involved considerable stretching underneath cars. Mr Francis obtained a history of the initial shoulder injury occurring in August 2005 and noted that Mr Cooper was able to continue work, but still with pain occurring. His history recorded the plaintiff showing some improvement with two cortisone injections by the start of the 2006 year.
52 The next incident recorded by Mr Francis was that which occurred on 17 May 2007 when the plaintiff fell from the people-mover. There was no history recorded of the event occurring in March 2007. His opinion at that time was that Mr Cooper had sustained two incidents, initially a partial tear of the right supraspinatus and later, a full thickness tear occurring in the incident in May 2007. He was asked to express an opinion as to contribution or aggravation of the specific incidents and stated:
“The second supraspinatus injury on 17 May 2007 is an aggravation of a pre-existing injury of August 2005. The fracture (of the humerus) would be a new but concurrent injury of 17 May 2007. The work component has not resolved.”.[72]
[72]Exhibit 2D(1) page 3
53
Mr Francis examined the plaintiff again in February 2008, and noted a dramatic improvement over the period of three months since he had first seen him. This was apparently due to the manipulation of the right shoulder under anaesthetic, performed in December 2007, and weekly physiotherapy.
Mr Cooper had returned to light duties at this time. The remainder of the report was largely concerned with Mr Cooper’s then capacity for employment and need for medical treatment. Those matters are not relevant to the matters currently in dispute in this application.
54 Mr Francis’s most recent report was provided on 28 February 2013 and was specifically concerned with applications made for “serious injury assessment” in relation to the right shoulder injury and other conditions which are no longer relied upon. There were further matters of history noted, including the continuance of physiotherapy until 2010, and the difficulty Mr Cooper has experienced in obtaining ongoing work.
55 Mr Francis’s opinion following that examination was expressed as follows:
“This now 55 year-old stevedore, in the course of his work, has sustained earlier injuries to his right shoulder culminating in a severe fall on 17.05.2007, causing a full thickness tear of his right rotator cuff, plus a fracture of his greater tuberosity. Subsequent surgery has been performed plus later manipulation under anaesthetic, but the worker has continued to have symptoms in the way of pain and movement limitation in relation to this injured right shoulder. I believe his condition would now be considered permanent as there has been minimal change over the last few years.”[73]
[73]Exhibit 2D(1) page 18
56 In relation to the contribution of particular events Mr Francis stated:
“… although the worker did describe earlier symptoms and earlier ultrasound findings of a partial tear of his rotator cuff, the specific injury in which the rotator cuff was completely torn and the fracture of the tuberosity of the humerus occurred, was in the 17.05.2007 event. On that basis, I would consider that event was the precipitating event rather than an aggravation, acceleration, exacerbation or deterioration of an earlier injury.”[74]
[74]Exhibit 2D(1) page 19
57 The clinical notes of Mr Byrne were relevant to the issues in this proceeding, particularly the notes relating to consultations in 2006 and 2007. The notes from 11 May 2006 record Mr Cooper as suffering ongoing pain in the right shoulder, with impingement signs positive and pain on stressing the supraspinatus. Mr Byrne records: “He feels if anything his symptoms are slightly worse. No benefit with exercise regime.”.[75] The clinical notes are also confirmatory of Mr Cooper being listed for arthroscopy on the right shoulder, with an open right rotator cuff repair and subacromial decompression “Once WorkCover approval obtained”.[76]
[75]Exhibit 2D(2) page 59
[76]Exhibit 2D(2) page 59
58 The clinical note made on 9 May 2007 is of real assistance to my task, as it is recorded after the second event in March 2007, but eight days prior to the fall. That note records:
“Most recent investigation includes an ultrasound which suggests a partial tear of the supraspinatus. This has not progressed from the previous ultrasound. No evidence of full thickness tear.”[77]
[77]Exhibit 2D(2) page 60
59 The notes go on to record the various options discussed with Mr Cooper, including the arthroscopy which had been suggested in May 2006 and other alternatives, including simply putting up with it. At consultation Mr Byrne recorded:
“He wishes to try ultrasound-guided injection with a swimming program. Request to QBE to extend his swimming program. I have discharged him back to his GP.”[78]
[78]Exhibit 2D(2) page 60
60 Finally the clinical note of 27 May noted a repeat injury to the right shoulder, and an ultrasound showed the full thickness tear of the supraspinatus. It is common ground that the plaintiff underwent surgery shortly thereafter.
61 The plaintiff has brought two applications for leave against separately represented defendants, but effectively claiming the same relief against each one. During the opening of this application Mr Chancellor was clear in stating that the plaintiff would rely upon the consequences of what he had described as a “throughout the course of employment” [79] injury.
[79]T3, L 20–28
62 There is no suggestion in the evidence, or in submissions made on behalf of the defendant in each application, that the entity employing Mr Cooper changed throughout the whole of his period of employment. The entitlement to a grant of leave depends on a plaintiff satisfying a court that he has sustained relevantly serious consequences flowing from either a single event arising out of or in the course of his employment, or one which occurs due to the nature of his employment. This is clearly mandated by the words used in s134AB(1) of the Act.
63 Caution must be exercised to avoid combining impermissibly separate and distinct injuries as described in Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511. In that case the Court stated:
“If injuries are the result of separate events, each giving rise to a course of action for damages, each injury is to be considered separately for the purposes of determining whether any resulting impairment or loss of a body function enables each injury to meet the definition.”[80]
In Lu, a worker who had suffered an injury to his elbow resulting from the stresses of the work process in July or August 1995, and later suffered an injury to his shoulder in September of that year when an object fell from a conveyor, striking him on the shoulder. The argument which the Court of Appeal needed to consider was whether those two injuries and their consequences could be relevantly combined. The Court held that they could not. Reference was also made to the principles set out in the earlier decision of Petkovski v Galletti [1994] 1 VR 436 which sets out the appropriate test where an applicant relies upon an aggravation of an earlier injury to access the serious injury gateway.
[80]Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 at [5] per Buchanan JA.
64 The situation in the present case is that Mr Cooper effectively seeks to rely on incidents occurring in the course of his employment up until the transport accident of May 2007 as entitling him to a grant of leave. The evidence comfortably satisfies me that he did sustain an injury in the course of his employment with Patrick’s in August 2005, which has produced consequences which were still persisting as at May 2007.
65 I am not satisfied on the evidence, that any incident in March 2007 has produced anything other than a temporary aggravation of the August 2005 injury and could not, of itself, sustain serious consequences. I am fortified in reaching such a conclusion by the lack of reverence by the plaintiff to this event in medical histories, and particularly the clinical note made by Mr Byrne on 9 May 2007, to which I have referred. If the plaintiff had been required to prove serious consequences flowing from the events of March 2007 then, in my assessment, he has not done so.
66 The real question for determination is whether the evidence satisfies me that Mr Cooper had sustained serious consequences from a work-related injury at some time prior to the transport accident in May 2007. In practical terms, this involves an assessment of the consequences of the August 2005 incident as there is little, if any, evidence to support permanent or serious consequences resulting from the further episode in March 2007.
67 Mr Chancellor did not submit in his final address that I should find the consequences of the March 2007 incident in any way satisfied the test for leave to be granted. Indeed, Mr Chancellor’s case did not rely upon the Court undertaking an exercise to disentangle consequences flowing from the incident in August 2005 and the later incident in March 2007. Once the plaintiff had established a compensable injury, in this case that occurring in August 2005, it was open to the plaintiff to rely upon the consequences which satisfied the test of permanency and seriousness immediately prior to the transport accident in May 2007.
68 Mr Chancellor accepted that the further injury to Mr Cooper’s shoulder sustained in the transport accident needed to be identified and considered separately from the pain and suffering consequences of the work-related injury which first occurred in August 2005.
69
The authority in Peak Engineering Pty Ltd & Anor v McKenzie ordinarily requires a consideration of all of the pain and suffering consequences, and then requires a court to identify which of those consequences can be said to relate to the work-related injury.[81] There is no argument advanced on behalf of the plaintiff against this principle.
Mr Chancellor accepted, quite rightly, that the plaintiff bore the burden of proving the relevant consequences and submitted that I should find those pain and suffering consequences flowing from the work-related injury commencing in August 2005 to be both permanent and properly assessed as being at least very considerable and more than significant or marked.
[81][2014] VSCA 67 at [24 and 25]
70 Somewhat unusually, the plaintiff was in a position to refer me to medical assessments made very shortly prior to the transport accident as proof that the extent of the plaintiff’s injury prior to that subsequent injury being sustained. In particular, reference was made to the clinical notes of the treating surgeon, Mr Byrne, particularly the note recorded on 9 May 2007, eight days prior to the transport accident.[82]
[82]Exhibit 2D(1) page 60
71 Further, in terms of permanency, the plaintiff’s counsel relied on the opinions of the defendant’s medical witnesses, particularly Mr Shannon and Mr Simm was supportive of the proposition that the partial thickness rotator cuff tear evident in May 2007 was likely to be permanent and had been the cause of the plaintiff’s pain and suffering consequences as at that time. It was submitted that there was no medical evidence to suggest that the injury had recovered, or would not have continued indefinitely as at the date of the transport accident.
72
Conversely, Mr Hayes on behalf of the first defendant, submitted that a comparison of the radiological ultrasound reports of the plaintiff’s shoulder compared between October 2005 and July 2006, showed a reduction in the partial tear of the tendon from fourteen millimetres to seven millimetres.[83]
Mr Hayes submitted that this, together with the lack of active treatment between 2006 and 2007 were suggestive of the injury healing, and were inconsistent with an injury producing consequences of a permanent nature.
[83]Exhibit A, pages 49-51
73 I am unable to accept Mr Hayes argument in this regard as the clinical notes of Mr Byrne recorded in May 2006 and May 2007 are strongly suggestive of ongoing symptomatology and the consideration of various forms of surgical treatment at the time Mr Cooper was last seen prior to the transport accident.
74 I am able to place considerable weight upon both the affidavit evidence given by Mr Cooper and his evidence given during the hearing. It is refreshing in a case involving complexities such as this one, to receive an initial affidavit sworn by the plaintiff, which is used to support both the application as is before me, and an application made under the provisions of the Transport Accident Act 1986.[84] I accept Mr Cooper as a reliable witness who did not exaggerate or seek to manipulate his evidence either in affidavit form or before me.
[84]Exhibit A, pages 11-20
75 I am satisfied that the work-related injury suffered by him can be described as permanent.
76
In relation to the severity of consequences flowing from the initial incident in August 2005, I am satisfied that the plaintiff did suffer pain in the right arm, together with a loss of use consistent with a partial tear of the rotator cuff tendon. I accept that the consequences during the latter months of 2005 were of sufficient severity to warrant his general practitioner referring him to
Mr Byrne for specialist treatment, which included ultrasound-guided bursal injection and physiotherapy.
77 I am further satisfied that, whilst Mr Cooper continued with his normal work for Patrick’s, he had requested lighter duties and tended to favour the use of his non-dominant left arm to perform his work. He required a further injection into the right shoulder in January 2006, and I accept this made little difference to the level of his symptomatology. I further accept that the physiotherapy was also not of great effect.
78 In making an assessment of the consequences of pain and suffering in the first year after sustaining the injury I am fortified, in particular, by the clinical notes of Mr Byrne made on 11 May 2006.
79 I accept, as a matter of probability, that the plaintiff continued to suffered pain that was aggravated by movement of the dominant right shoulder, and sufficient to warrant conservative treatment and consideration of surgery. I also accept that the injury first sustained in August 2005 caused the plaintiff to cease playing lacrosse, which had been his principal sporting activity since his early teens. He was cross-examined, particularly by Mr Hayes, as to his involvement in this activity, noting that he had been in his late-forties when he sustained the injury. Following the cross-examination, I formed the opinion that this sport had been an important part of Mr Cooper’s recreational life, and he was continuing to play the sport as a veteran. I also accept that he engaged in kayaking and played occasional games of tennis and squash, which had also ceased as a result of the initial shoulder injury. The loss of these activities is clearly significant to Mr Cooper.
80 I formed the view that Mr Cooper was quite a stoic individual, and this is confirmed by the fact that he had chosen to persist with ultrasound-guided injections and a swimming program when he saw Mr Byrne in 2007, despite an earlier recommendation in 2006 that he undergo surgical repair of the shoulder. His use of medication has been limited, and I accept that Mr Cooper tried to avoid using substantial medication following the August 2005 injury, particularly as he was determined to remain at work.
81 I am satisfied that the consequences of a work-related right shoulder injury first suffered in August 2005 were producing consequences that could properly be described as permanent and at least, very considerable, in May 2007, immediately prior to the occurrence of the transport accident in which the plaintiff was involved on 17 May 2007.
82 I am further satisfied that those consequences have continued up to the date of this application, albeit now significantly aggravated by the further injury to that body part sustained in the transport accident.
Conclusion
83 I am satisfied that the plaintiff has made out his application for leave to claim damages in respect of the pain and suffering consequences of work-related injuries sustained in the course of his employment with Patrick’s up to 17 May 2007.
84
It is unnecessary for me to consider the alternative argument put by
Mr Chancellor to the effect that the consequences of the transport accident could relevantly be considered in this application, as the original work-related injury had made Mr Cooper more susceptible to further injury. In my view, this is probably a question for consideration in the assessment of damages at common law.
85 Further, notwithstanding that two separate applications were made, it is appropriate for me to give leave only in relation to the plaintiff’s entitlement to claim damages against his employer. It has not been made clear to me the basis upon which two originating motions were issued, and identical evidence relied upon by the plaintiff in each case. On that basis, it seems proper that leave be granted in respect of each originating motion, albeit that the interests of the separately represented defendants was clearly dictated by insurance concerns.
86 In those circumstances, I will hear further argument and, if necessary, take further evidence as to the basis upon which the separate originating motions were issued in this proceeding and the orders that ought follow from these findings.
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