Damiano v WD Bledisloe Australia Pty Ltd
[2019] VCC 912
•25 June 2019
_
IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION
SERIOUS INJURY LIST
Revised
Not Restricted
Suitable for Publication
Case No. CI-18-05534
ANTHONY DAMIANO
Plaintiff
v
BLEDISLOE AUSTRALIA PTY LTD
Defendant
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JUDGE:
HER HONOUR JUDGE TSALAMANDRIS
WHERE HELD:
Melbourne
DATE OF HEARING:
30 May 2019
DATE OF JUDGMENT:
25 June 2019
CASE MAY BE CITED AS:
Damiano v WD Bledisloe Australia Pty Ltd
MEDIUM NEUTRAL CITATION:
2019 VCC 912
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to right shoulder – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Carbone v Toyota Motor Corp [2017] VSCA 249
Judgment: Application successful
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APPEARANCES:
Counsel
Solicitors
For the Plaintiff
Mr S Scully
John McCristal Injury Lawyers Pty Ltd
For the Defendant
Mr D McWilliams
Wisewould Mahony
HER HONOUR:
Preliminary
Mr Damiano is a 70 year old man, who worked for the defendant as a funeral director’s assistant. On 30 January 2009, whilst transferring a very heavy deceased man, Mr Damiano suffered injury to his right shoulder. Whilst Mr Damiano was able to continue working after this incident, he remained on restricted duties until December 2016, when he ceased his employment with the defendant for unrelated reasons. Mr Damiano claims to have been restricted in his ability to perform leisure and domestic activities since that time.
In order for Mr Damiano to be entitled to claim common law damages for his pain and suffering, he must satisfy me that his impairment satisfies paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985.
The defendant accepted that Mr Damiano injured his right shoulder in this incident, but disputed the claim on the basis that the consequences he suffers are modest and cannot be described as “at least very considerable”.
Only Mr Damiano was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read those tendered documents together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
For the reasons which follow, I am satisfied that the impairment to Mr Damiano’s right shoulder results in consequences which can be described as “at least very considerable”.
Mr Damiano’s life prior to suffering his right shoulder injury
Mr Damiano is widowed and lives with his mother. He has five adult children.
Mr Damiano left school at the end of Year 8. He subsequently undertook numerous jobs with a range of employers, including as a machinist, labourer and plumber’s assistant. Mr Damiano then obtained employment as a funeral director’s assistant with Abbey Funerals and Giannarelli Funerals, before subsequently obtaining employment with the defendant, which operated as WD Rose Funerals in Burwood.
Prior to suffering his work injury, Mr Damiano said that he enjoyed a number of hobbies and recreational pursuits. Mr Damiano said that his favourite hobby was golf, and that he played approximately three times per week at various golf courses including the Northcote Golf Club and the Albert Park Golf Club.
Mr Damiano said that he had previously coached a junior football team for a period of approximately 14 years. He ceased coaching approximately two years prior to suffering his work injury, but said that he still enjoyed having a kick of the football with family and friends.
Mr Damiano said that he enjoyed swimming, and that he usually swam a couple of times per week at the Preston Club Pool, when it was open. Mr Damiano said that he also enjoyed fishing, which involved going out in his brother-in-law’s boat.
Mr Damiano said that he previously enjoyed hunting and shooting rabbits and pigs. In cross-examination, however, he conceded that he could not recall when he had last gone shooting prior to suffering his work injury. Mr Damiano volunteered that it was around the time that gun licensing laws were tightened in Australia, which he accepted may well have been soon after the Port Arthur massacre in 1996.
Mr Damiano said that he had no problems in his right shoulder, prior to suffering his work injury.
Mr Damiano’s right shoulder injury and its claimed consequences
On Friday 30 January 2009, Mr Damiano suffered a right shoulder injury whilst helping to transfer a deceased man who weighed approximately 168 kilograms. Mr Damiano said that he felt a ripping and burning sensation in his right shoulder during the course of the transfer.
Later that day, Mr Damiano attended his general practitioner, Dr Mario Marazita, in Preston. At that time, Dr Marazita noted that Mr Damiano suffered pain, with significant restrictive elevation of his right arm, with positive impingement of his shoulder rotator cuff. Dr Marazita prescribed medication and referred Mr Damiano for physiotherapy treatment. He also provided Mr Damiano with a Certificate of Capacity which stated that he should be limited to lifting no more than 10 kilograms with his right arm.
Mr Damiano returned to work the following Monday and continued in such employment until 2 December 2016. Throughout that time, Dr Marazita continued to provide Mr Damiano with Certificates of Capacity on a monthly basis. The nature of the restrictions in each of these certificates varied throughout that period and included, amongst other restrictions, that he not lift his right arm above shoulder height, that he not lift more than 30 kilograms and that he not lower any coffins.
On 1 June 2010, an ultrasound was taken of Mr Damiano’s right shoulder, which was reported as demonstrating mild subacromial bursitis.
Further ultrasounds were performed on Mr Damiano’s right shoulder on 22 January 2014 and 7 May 2019, both of which also reported that Mr Damiano was suffering subacromial bursitis.
On 13 August 2010, Dr Marazita arranged for Mr Damiano to receive an ultrasound-guided injection into his right shoulder, from which Mr Damiano said that he received no benefit.
Mr Damiano also received physiotherapy treatment on a weekly basis over a period of approximately 12 to 15 months. Such treatment involved stretches, ultrasound therapy and heat treatment.
In January 2011, Mr Damiano was referred to a new physiotherapist, Mr Aidan Rich. At the time of his first examination, Mr Rich noted that Mr Damiano had a globally restricted active range of movement in his right shoulder. He considered Mr Damiano to be suffering from an undiagnosed adhesive capsulitis, and recommended that Mr Damiano undergo a right shoulder hydrodilatation procedure.
On 31 March 2011, Mr Damiano underwent a hydrodilatation procedure on his right shoulder. Mr Damiano said that he received some benefit from this procedure, and that there was an improvement in his shoulder pain for a period of some weeks.
In a report to the WorkCover insurer dated 17 May 2011, Mr Rich noted that he had observed significant progress in respect of Mr Damiano’s right shoulder injury, following the hydrodilatation procedure and three sessions of physiotherapy treatment. He further noted that Mr Damiano’s main deficit at that time was some mild strength loss. Mr Rich recommended that Mr Damiano undertake gym work, two to three times per week to improve his shoulder stability and strength.
Mr Damiano said that there was a significant delay in the approval of his gym membership, such that he was never able to take up this offer. In the alternative, Mr Damiano said that he completes some exercises at home, with a rubber band attached to a door. In 2015, Mr Damiano was transferred to the WD Rose premises in Burwood. He claims to have been bullied at these premises, and said that he became stressed by the treatment he was receiving. Mr Damiano last worked on 2 December 2016.
Mr Damiano claims that he suffers a constant dull ache in the back of his right shoulder, with pain that varies in intensity and is unpredictable. He said that he has good and bad days and that, at best, his shoulder pain is 4 out 10, but that occasionally, at its worst, his pain is 8 out of 10.
Mr Damiano said that his pain is aggravated by certain activities, such as driving, or when he does “silly things.” By way of example, Mr Damiano said that he aggravates his shoulder pain for a few days when he tries to start the lawn mower, and that he now asks his 93 year old mother for assistance.
Mr Damiano said that he is limited in the activities he can perform around the house. He is still able to cook, but is limited in his ability to garden or perform home maintenance tasks which involve the use of his right shoulder. Mr Damiano said that whilst he enjoys doing handyman jobs, including for family and friends, any such tasks are limited due to the restricted use he has in his right arm.
Mr Damiano said that he regularly uses Voltaren medication, together with over-the-counter painkillers. He said that his mother will rub Voltaren gel into his shoulder when the pain is especially bad. Mr Damiano also takes medication for his depression and unrelated health problems.
Mr Damiano continues to attend his general practitioner, Dr Marazita, on a monthly basis. In a report dated 8 May 2019, Dr Marazita stated that, over time, Mr Damiano’s shoulder injury has “gradually resolved to the point that he has almost normal shoulder function.” Dr Marazita stated that it could deteriorate with heavy lifting and/or performing repetitive elevation with his right arm.
Mr Damiano said that he has been provided with five physiotherapy/massage sessions each year through Medicare, and that he uses these sessions for his right shoulder pain.
Mr Damiano claims that his sleep is also affected, such that when he rolls onto his right side, he often wakes from sharp pain. Mr Damiano said that he now only tends to get three to four hours of sleep per night, as his shoulder pain makes it difficult for him to go back to sleep.
Mr Damiano said that he has tried to play golf a few times since suffering his shoulder injury, but that after approximately five or six holes, his shoulder pain considerably worsened, following which he suffered increased pain for several days thereafter. Mr Damiano said that his inability to play golf is a significant loss to him, as golf was his predominant hobby before he suffered his shoulder injury.
In addition, Mr Damiano said that he no longer goes fishing or swimming, and can no longer have a casual kick of the football, as he cannot mark the ball.
Medico-legal evidence
Mr Damiano’s solicitors arranged for him to be examined by orthopaedic surgeon, Mr Austin Vo, in April 2019. In his report dated 26 April 2019, Mr Vo stated that, in his opinion, Mr Damiano was suffering from right shoulder impingement syndrome, capsulitis and scapular dyskinesia. Mr Vo attributed this injury to the work incident in January 2009. Further, Mr Vo was of the opinion that Mr Damiano would benefit from physiotherapy and hydrotherapy treatment, as well as further cortisone injections and hydrodilatation. Mr Vo considered Mr Damiano to be restricted in respect of overhead activity, as well as the lifting of heavy items.
In his examination findings, Mr Vo noted that Mr Damiano had a restricted range of motion, with abduction in his right shoulder to 90 degrees which increased to 100 degrees passively, but with pain.
Mr Damiano’s solicitors also arranged for him to be examined by pain management specialist, Dr Clayton Thomas, in May 2019. In his medical report dated 19 May 2019, Dr Thomas stated that Mr Damiano was suffering a rotator cuff-type problem in his shoulder, but was of the opinion that the dominant residual problem was a chronic pain syndrome, which was organic in nature. Dr Thomas attributed this injury to the work incident in January 2009. Dr Thomas considered Mr Damiano’s shoulder restriction to be quite significant and considered his prognosis to be persistent pain and disability.
In addition, Mr Damiano sought to rely upon a Medical Panel Opinion provided in July 2017, following an examination to determine his level of impairment for the purposes of his lump sum claim. In its reasons, the Medical Panel stated that it diagnosed Mr Damiano as suffering right shoulder dysfunction following soft tissue injury, causing restricted range of motion.
The defendant’s solicitors arranged for Mr Damiano to be examined by orthopaedic surgeon, Mr Rodney Simm, in October 2018. In his report dated 31 October 2018, Mr Simm stated that, in his opinion, Mr Damiano was suffering chronic right shoulder girdle pain, with marked inhibition and active and passive shoulder joint movement. Mr Simm did not consider there to be any clinical signs of persistent subacromial impingement or bursitis.
At the time of his examination, Mr Simm considered the range of movement to be markedly reduced in comparison to that observed by Mr Rich in 2011. Mr Simm was of the opinion that Mr Damiano was now suffering chronic regional pain syndrome with a functional component.
In a subsequent report dated 21 May 2019, after reviewing the report of Mr Vo, Mr Simm stated that both he and Mr Vo were in agreement that there was an underlying physical condition. However, Mr Simm was of the opinion that Mr Damiano’s pain was much greater than one would expect, based on the physical factors evident from the available investigations. Mr Simm considered this to demonstrate that there had been an amplified and severe pain response, which had worsened since Mr Damiano had ceased work. Mr Simm again stated that, in his opinion, Mr Damiano suffered a chronic pain syndrome, which Mr Simm said implied that the severity of Mr Damiano’s pain was greater than one would normally expect from the known physical factors.
The defendant also relied upon a medical report from occupational physician, Dr Marcus Navin, dated 21 February 2017. In his report, Dr Navin stated that there was some evidence of persistent adhesions in Mr Damiano’s shoulder joint. He was of the opinion, however, that any injury occurring in 2009 had since healed. Dr Navin did not consider Mr Damiano’s employment to be the ongoing source of his troubles, “but more to his adapted behaviours”.
Mr Damiano’s credibility
For the most part, I accepted Mr Damiano as a credible and reliable witness. He appeared to be a relatively unsophisticated man who gave straightforward answers, sometimes against his own interest. By way of example, Mr Damiano conceded that he was unsure when he had last gone hunting, and then readily accepted that it may have been many years prior to his work accident.
Mr Damiano gave evidence throughout the course of the hearing in relation to the activities he was still able to perform. In his affidavit, Mr Damiano said that he had taken up dancing classes for exercise. In his oral evidence, he said that he helped his friend drive cars to and from his mechanic workshop, and that he completed handyman jobs on occasions for his family and friends. Mr Damiano explained that he performs these activities notwithstanding the restrictions imposed upon him by his right shoulder pain.
I consider Mr Damiano to be a stoic individual, in circumstances where he continued working for a period of seven years after his injury, and where he has continued to remain active in his daily life thereafter.
I note, however, there were several occasions throughout the course of the hearing where Mr Damiano gave contradictory evidence. In his affidavit, Mr Damiano stated that he took Lyrica for his shoulder pain. In cross-examination, however, Mr Damiano conceded that the Lyrica was initially prescribed for pain in his toes and legs. He later sought to explain that the Lyrica was also prescribed in part for his sleep problems, which he attributed to his right shoulder pain. However, in circumstances where Mr Damiano no longer takes Lyrica, I do not consider this relatively minor inconsistency in his evidence to be of significance.
In cross-examination, Mr Damiano initially said that he only used his left hand to drive, save for when he needed to indicate. However, following DVD surveillance taken in March 2019, in which Mr Damiano can be seen driving, he conceded that he used both his right and left hands to drive. Mr Damiano later sought to explain that he rests his right hand in his lap, following any increased right shoulder pain as a result of prolonged use when driving. I ultimately accept this explanation and do not consider the evidence to impact upon Mr Damiano’s overall credibility.
Mr Damiano was also challenged in respect of his claim that his shoulder injury prevents him from fishing, on the basis that he can no longer cast or pull in the reel. In cross-examination, Mr Damiano conceded that he could cast his fishing rod with his left arm, and that most of the fish he caught in Port Phillip Bay weighed less than one kilogram.
However, Mr Damiano explained that an additional reason why he could not go out fishing, was that it involved helping get the boat in and out of the water, which he said his shoulder injury prevented him from doing. Mr Damiano stated that he used to go out in his brother-in-law’s boat, and that this stopped because of his shoulder injury. Mr Damiano then stated that his brother-in-law died last year. It could be inferred from this that Mr Damiano’s ability to go out fishing would have been affected at that time, irrespective of his shoulder injury. I consider this a further example of Mr Damiano being a frank witness, as this evidence effectively diminished the significance of this claimed consequence.
Mr Damiano’s right shoulder injury
The defendant sought to defend this claim, in part, on the basis that the restriction of movement in his right shoulder had worsened since Mr Damiano ceased work. It was submitted that there was no explanation for any such worsening, other than Mr Damiano’s condition now being age-related, or due to a chronic pain condition.
In circumstances where I accept Mr Damiano as a credible witness, and where I am satisfied that the pain and restriction of movement he suffers in his right shoulder has persisted since January 2009, I do not accept the defendant’s submissions that his condition is no longer work-related.
The medical imaging has consistently reported that Mr Damiano suffers subacromial bursitis. It is possible that Mr Damiano has suffered pain to a greater extent than doctors such as Mr Simm may expect, and that his pain may be disproportionate to the pathological condition demonstrated in imaging. However, in circumstances where his complaints of right shoulder pain have been relatively consistent since 2009, and where his restrictions have fluctuated and varied throughout that time, I am ultimately satisfied that Mr Damiano suffers an organic injury, as a consequence of the work incident in 2009, and that such an injury has caused an ongoing impairment to his shoulder.
Pain and suffering consequences
I must now assess whether Mr Damiano’s right shoulder impairment has caused him to suffer consequences that are more than marked or significant, and that are at least very considerable.
In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon, Maxwell P stated that, in assessing a plaintiff’s pain and suffering consequences, the court should have regard to what the plaintiff says about the pain; what the plaintiff does about the pain; what the doctors say about the extent and intensity of the pain; and what the objective evidence demonstrates about the disabling effects of the pain.
Mr Damiano claims that he suffers a constant pain in his right shoulder, which varies in intensity, and for which he received a cortisone injection and underwent a hydrodilatation procedure. He takes pain medication on a regular basis, and sometimes receives massage therapy. His sleep is affected, and he has to avoid activities which aggravate his shoulder pain, including both domestic and leisure activities.
Dr Marazita’s most recent report is very optimistic in respect of Mr Damiano’s condition. It appears somewhat contradictory in circumstances where he has consistently provided Mr Damiano with Certificates of Capacity, which, to varying degrees, have limited the weights he can carry with his right arm, for a period of six years. I am of the opinion that, in providing Mr Damiano with these certificates, Dr Marazita considered Mr Damiano to be suffering an ongoing incapacity over this period, to the extent that he was never cleared to resume his pre-injury duties. In circumstances where Mr Damiano has continued to complain of shoulder pain since that time, and where I accept that such pain restricts him on a daily basis, I do not consider Dr Marazita’s report to be a fair reflection of Mr Damiano’s current impairment.
Dr Thomas and Mr Vo accept that Mr Damiano suffers ongoing restrictions due to his right shoulder injury. Whilst Mr Simm considers Mr Damiano’s complaints of pain disproportionate to his physical condition, my acceptance of Mr Damiano as a credible witness, and one who suffers an organic injury, is such that I gain little assistance from his reports.
Mr Damiano suffered his injury at age 60 and is now 70 years of age. Instead of being able to fully enjoy his retirement years, Mr Damiano must now endure daily pain, for which he requires the frequent use of medication to assist in his pain relief. He experiences interference to his sleep, and is not able to enjoy his favourite hobby of golf, or other leisure activities he previously used to enjoy.
In determining this case, I must make a comparison with other cases in the range of possible impairments. Whether or not a plaintiff has established the requisite “serious injury”, “is a question of impression which is influenced by elements of fact, degree and value judgment”.
In considering all of the evidence, I am satisfied that the pain and suffering consequences to Mr Damiano can be described as “very considerable”.
I will therefore make the consequent orders.
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