Dunn v Victorian WorkCover Authority
[2015] VCC 808
•22 June 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-05722
| SARAH DUNN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2015 | |
DATE OF JUDGMENT: | 22 June 2015 | |
CASE MAY BE CITED AS: | Dunn v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 808 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to neck – pain and suffering – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment:Leave granted in respect to pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Worth | Hounslow Lawyers |
| For the Defendant | Mr J Batten | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 The plaintiff, Sarah Dunn, injured her neck on 5 May 2007 in the course of her work as a sales assistant at Spotlight (“Spotlight”) when she placed a roll of heavy fabric on her right shoulder as she was returning it to a shelf (“the incident”). After a short break, Ms Dunn continued to work but suffered pain and discomfort. She saw her general practitioner in late June 2007 and was referred for radiological investigation. She went on a holiday that she had planned before her injury, to Egypt and Germany, but was in pain during this trip.
2 Ms Dunn returned to work on modified duties, lifting no more than 5 kilograms, later shifting to work on the registers. She subsequently moved to the home décor area, as work on the registers caused pain in her hands. In September 2011, Spotlight advised that unless she could return to her pre-injury duties, her position would no longer be available. In January 2012, she resigned.
3 Ms Dunn commenced employment with Harris Scarfe Australia Pty Ltd (“Harris Scarfe”) in September 2012 in the role of assistant store manager, and she continues in this position. Her duties are less physically demanding than at Spotlight.
4 Ms Dunn says that a range of social activities have been affected by her injury, including travelling as a backpacker, dancing and walking to work. She says she suffers constant pain that is made worse by certain movements, she is limited in the activities she undertakes and she wakes regularly during the night due to pain.
5 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of Ms Dunn’s employment on 5 May 2007. The body function said to be lost or impaired is the neck or, alternatively, the neck and shoulder. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.
6 I am satisfied that as a result of this injury, Ms Dunn does have consequences which satisfy the “very considerable” test the law requires. For the reasons that follow, her application succeeds.
7 Ms Dunn was the only witness called to give evidence and be cross-examined. In addition, her two affidavits, an affidavit by her sister, medical and radiological reports, and clinical notes were tendered in evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this Judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me revisit the various relevant sections and those authorities.
Relevant Background
8 Ms Dunn is forty-one and lives in her own home. She started working at Spotlight in 2002 as a sales assistant on a casual basis, and was made a permanent full-time employee after several months.
9 Before the incident, she suffered migraine headaches. She also developed right trigger thumb from repetitive work for which she claimed WorkCover statutory benefits. Ms Dunn’s trigger thumb was treated surgically in July 2006 and she subsequently underwent hand therapy. Despite treatment, Ms Dunn continued to have stiffness in the IP joint.[1]
[1]Plaintiff’s Court Book (PCB) 42
10 Post incident, Ms Dunn developed bilateral Carpal Tunnel Syndrome, for which she also made a WorkCover claim. Surgical treatment was recommended, however, WorkCover refused to provide funding. Ms Dunn has not undergone surgical treatment for this condition. She had successful Lap-Band surgery in November 2011 and a further procedure in November 2011 to loosen the Lap-Band to treat reflux.
The injury and its consequences
11 On 5 May 2007, Ms Dunn was unloading rolls of fabric from a trolley and returning them to shelving racks. The rolls had to be carried 2 or 3 meters to the racks. She gave evidence that she picked up a large roll weighing over 15 kilograms and put it on her right shoulder[2]. In doing so, she experienced “a shock of pain” in her right shoulder and up into her neck.[3] She went on an early break because of the pain and took Panadol or Dispirin which did not help. At home, Ms Dunn applied ice and Deep Heat.
[2]Transcript line 29 p33
[3]PCB 24
12 The following day, a Sunday, Ms Dunn was not rostered to work. She worked on Monday (7 May 2007) but went home at lunchtime due to pain. She returned to work on Wednesday (9 May 2007) and for the next few weeks she worked with pain in her neck, shoulder and down her left arm. Initially, Ms Dunn thought she had strained a muscle and that it would resolve itself. She went on an overseas holiday that she had booked prior to the incident. She saw her general practitioner, Dr Lajoie, in late June 2007, at which time he referred her to a physiotherapist.
13 The pain continued, and Dr Lajoie arranged an ultrasound in late July 2007. The ultrasound showed a full-thickness tear of the right supraspinatus with associated with subdeltoid bursitis and bursal impingement.[4] She was referred for physiotherapy.
[4]PCB 92
14 On returning to work after her overseas trip, Ms Dunn provided Spotlight with certificates specifying that she was not to lift any more than 5 kilograms. The medications, Mobic and Celebrex, caused side effects, so she took Nurofen Plus.
15 In her first affidavit, Ms Dunn said that in early 2008, she continued to have pain and was having difficulty sleeping, being woken by pain in her neck or shoulder during the night.[5]
[5]PCB 25
16 In early 2008, Mr Lajoie referred Ms Dunn to Mr Mills, an orthopedic surgeon. He opined that the ultrasound was unreliable[6] and referred her for investigation for a small lateral C5-C6 disc on the right as he thought her issues lay there. He suggested that she sleep with a soft collar at night.[7]
[6]PCB 63
[7]PCB 63
17 In April 2008, Ms Dunn underwent a cervical spine x-ray, and in May 2008, an MRI scan of the cervical spine.
18 In May 2008, Ms Dunn saw Mr Kavar, a neurosurgeon, following a referral from Mr Lajoie.
19 Mr Kavar wrote:
“The MRI scan reveals normal lordosis, fairly good quality discs with minimal degeneration at C5/6 and a very mild disc bulge at C5/6 that maybe (sic) extending towards the foramen with minimal foraminal narrowing.”
20 Mr Kavar considered that “her neck pain is spondylotic in nature and may reflect a soft tissue injury to her cervical spine”. He did not recommend surgery, but rather physiotherapy and gentle exercise.[8]
[8]PCB 49
21 In her first affidavit, Ms Dunn said she was referred back to Mr Bartam for physiotherapy in about August 2009 “largely in relation to the ongoing pain in my neck and right shoulder”.[9]
[9]PCB 27
22 Ms Dunn continued to experience symptoms and was referred to Mr D’Urso, neurosurgeon, for a second opinion in January 2010.
23 Mr D’Urso noted the MRI demonstrated some minor C5-C6 disc prolapse and said that he was “not convinced of any neural impingement” and that “the cord appears normal”. He saw no need for surgery.
24 In about April 2012, Dr Lajoie referred Ms Dunn to Dr Gassin, a musculoskeletal physician. Dr Gassin considered that Ms Dunn had developed a “myofascial pain syndrome involving the neck and upper limbs” and noted that this appeared to “have developed following a soft tissue injury to the cervical spine”. He stated there was no specific treatment. He prescribed Endep.[10]
[10]PCB 66
25 In July 2014, Ms Dunn experienced a “flare up” of neck and shoulder pain, after she washed her soft cervical collar and slept without it one night. She undertook a course of physiotherapy as treatment.[11]
[11]PCB 34
26 Ms Dunn resigned from Spotlight in January 2012 following advice from Spotlight that there was no position for her if she could not return to her pre-injury duties.[12] She began working at Harris Scarfe in September 2011 as an assistant store manager. Her duties there are more supervisory and there is much less physical work involved. Ms Dunn says that it is “suitable light duty employment”.[13] At the present time, she is earning about $47,000 gross per year.
[12]PCB 124
[13]PCB 33
27 According to her most recent affidavit[14] and her oral evidence, Ms Dunn claims the following consequences as a result of the neck injury:
[14]ibid
· She suffers constant pain in her neck and right shoulder. Sometimes it is only a dull ache with some restriction of movement and other times she has a headache and pain in her neck and shoulder, radiating down her arm.
· She wakes regularly at night in pain when she turns her neck whilst asleep. She must sleep with a cervical collar each night or risk suffering a flare up of symptoms.
· Performing many domestic and personal tasks such as vacuuming, lifting, washing heavy pots, hanging out clothes, washing her hair and doing up her bra, cause pain. Lifting 5-kilogram boxes when moving house caused aches and pains.
· She now shops more frequently, two or three times a week, rather than once a week, so that the shopping is not too heavy.
· She is limited in the gardening she can do; she mows rarely and gets a neighbor to start the mower.
· Prior to the injury, she walked regularly and travelled to work by walking and taking public transport. She can no longer walk those same distances because turning her neck frequently causes pain. She now drives short distances only.
· Her social activities are restricted. She used to go dancing at nightclubs frequently but rarely goes now because dancing causes pain. She used to travel overseas and enjoyed backpacking holidays. She has not travelled overseas apart from that trip shortly after her injury, as she is worried it would cause pain to lift her luggage.
28 Ms Dunn currently takes Endep, usually 30 milligrams, nightly to help her sleep, and Panadol or Dispirin daily. She wears a cervical collar when sleeping and completes the physiotherapy exercises she has been shown. She does not take any other prescription medication for pain or inflammation as they cause significant side effects. She no longer takes Nurofen as, in combination with the Endep, it caused side effects. She sees a physiotherapist when necessary and sees Dr Lajoie usually monthly for prescription of Endep, certificates of capacity, and to discuss any health concerns. There are no recommendations for other treatment for her neck injury.
Medical Evidence
29 The plaintiff’s solicitors arranged for Ms Dunn to be examined by Mr Simm, orthopaedic surgeon. In his first report dated 16 May 2012, Mr Simm noted early C5-C6 disc degeneration with no significant or neural encroachment. He concluded that the dominant cause of Ms Dunn’s condition was –
“… unresolved aggravation of early cervical disc degeneration. This condition was asymptomatic until a lifting strain at work in May 2007. The symptoms have persisted since that incident, which would suggest the incident was responsible for damage to the compromised degenerate C5‑6 cervical segment. The compromise has resulted in permanent symptoms. The underlying pathology is constitutional.”[15]
[15]PCB 71
30 In his second report dated 11 December 2014, Mr Simm wrote that Ms Dunn presented with –
“… persistent painful cervical dysfunction. She has referred symptoms to the right shoulder girdle and arm but no clinical signs of radiculopathy. The right shoulder girdle pain is referred from the cervical spine … .”[16]
[16]PCB 77
31 Mr Simm obtained a history that Ms Dunn continues to experience symptoms in her neck every day and she never has a normal range of movement of the neck. He observed that Ms Dunn still suffers bilateral carpal tunnel syndrome producing nocturnal numbness and pins and needles. He notes that this condition is unrelated to her work injury.[17]
[17]ibid
32 Mr Simm said the incident on 5 May 2007 served –
“… to initiate and exacerbate symptoms of early cervical disc degeneration and from that time onwards the condition has remained symptomatic. The lifting incident may have injured or damaged a compromised degenerative structure in the neck and full healing and resolution of symptoms from that degenerative structure has apparently not occurred. On the basis of the history of no sustained resolution of symptoms from the time of that lifting incident, the incident remains significant in the clinical course of her condition. There are features of a chronic pain response in association with emotional lability and the need for long-term Endep.”[18]
[18]PCP 74
33 As for further treatment, Mr Simm said:
“She requires minimal ongoing treatment for her cervical condition. She wears a collar and undertakes self-management with regular cervical exercises. She attends her General Practitioner to obtain a prescription for Endep, which is an antidepressant medication, also used for chronic pain. She will need to attend her General Practitioner and to take this medication in the longterm. She does not require surgical intervention for the cervical condition and is not likely to in the future.”[19]
[19]PCB 77
34 Mr Simm says the injury has incapacitated Ms Dunn for physically demanding employment.
35 Dr Lajoie, Ms Dunn’s treating general practitioner, wrote in May 2015 that Ms Dunn continued to suffer neck and right shoulder symptoms. He considered she was fit for modified duties. He stipulated no heavy lifting above 5 kilograms, no repetitive pushing or pulling and no work above shoulder height. He said she would continue to require her medication regime “into the foreseeable future”[20] and would require physiotherapy.
[20]PCB 45B
36 Ms Dunn was examined by Mr Jones, orthopedic surgeon, at the request of the defendant’s solicitors. In his first report dated 10 November 2011, Mr Jones concluded that Ms Dunn was likely suffering from discogenic neck pain. He said that “carrying the fabric roll may have strained her neck”. He did not expect her to return to pre-injury duties with Spotlight.[21]
[21]Defendant’s Court Book (DCB) 19
37 Mr Jones re-examined Ms Dunn in December 2014. He found that Ms Dunn had “a mild degree of stiffness in the neck with some neck muscle discomfort, normal shoulder function and no abnormal neurological findings in the arms”.[22] He obtained a history that she had no difficulty with her employment at Harris Scarfe and she managed her symptoms using a neck collar and Endep at night. He said she was independent in self-care and managed housework and shopping without undue difficulty.
[22]DCB 25
38 Mr Jones said he agreed with the diagnosis of Dr Gassin that Ms Dunn suffers from a myofascial pain syndrome, for which there is no treatment. He said she is also affected by Mild Depression. He diagnosed a soft-tissue injury arising in the soft tissues around the neck and shoulders, possibly associated with early degenerative change in the cervical spine, which appeared to be age related. He said her symptoms will continue and may eventually resolve. He thought that her prognosis was good.[23]
[23]DCB 23-27
39 Dr Kostos, rheumatologist, provided two reports to the defendant’s solicitors. In his final report, he concluded that Ms Dunn had widespread tenderness consistent with fibromyalgia syndrome. He emphatically said Ms Dunn did not have a myofascial pain syndrome, and noted that Endep is used to treat fibromyalgia. He further said Ms Dunn did not have any specific injury to her neck, and the abnormalities on her MRI are frequently seen in asymptomatic individuals. He prescribed an exercise program to improve general physical fitness. He said her prognosis was poor.[24]
[24]DCB 35
40 The defendant tendered an old report from Mr Weaver, orthopaedic surgeon, written four months after the incident in December 2007. Mr Weaver accepted that Ms Dunn was injured as a result of a lifting incident at work. He concluded, based on an ultrasound performed in July 2007, that Ms Dunn suffered a rotator cuff tear[25]. As his comments relate to Ms Dunn’s right shoulder only and pre-date radiology of Ms Dunn’s neck, I find the report of limited assistance.
[25]DCB 39
41 Mr Long, general surgeon, examined Ms Dunn in October 2014. Mr Long said that “she requires no specific treatment” and could continue with her self-management program of Endep at night and wearing the neck brace at night and during flare ups. He related the ongoing flare-ups and discomfort to Ms Dunn’s original injury on 5 May 2007. He noted that Ms Dunn’s visits to her general practitioner are mainly for treatment of depression, along with the supply of Endep. He considered that she no longer required formal physiotherapy but may in the future benefit from up to a month of weekly physiotherapy treatment in the event of a flare-up.[26]
[26]PCB 89
42 In order to satisfy the definition of “serious injury”, Ms Dunn must prove the injury and its consequences are both serious and long-term. The authorities have defined the latter to mean “for the foreseeable future”. Mr Batten submitted that Mr Jones’ opinion was that Ms Dunn’s symptoms “may eventually resolve,”[27] and raised the question of whether her injury is permanent. I am, however, satisfied Ms Dunn’s injuries and the consequences which flow are long-term. That is the view of Mr Jones,[28] Mr Simm[29] and Dr Lajoie.[30] Further, there is no medical opinion to the effect there is some form of treatment which is likely to lead to an improvement.
[27]DCB 25
[28]DCB 25
[29]PCB 77
[30]PCB 45B
The Plaintiff’s credibility
43 I had the opportunity to observe the plaintiff in the course of cross-examination. I found her to be an honest witness giving a credible account of the incident and its consequences. In my view, she made the appropriate concessions I would expect of an honest witness. Mr Batten submitted that it was “a point against her” that she did not disclose in her affidavits the full extent of her gym activities. I did not find this a significant credit issue. In re-examination, Ms Dunn said that she used the treadmill, bike and mostly used the lower body weights, only using an upper body weight of about one kilogram.
Issues and conclusions
44 Mr Batten said the consequences of any neck injury are no longer materially contributed to by employment, and relied on the report of Mr Jones[31] in support of that proposition. He said that while initially the injury physically incapacitated Ms Dunn for pre-injury work, this was not now the case. I do not accept that opinion. Ms Dunn had no pain prior to the incident but has experienced pain ever since. In my view, her current condition is directly related to the injury. I prefer the opinions of Dr Lajoie, Mr Weaver and Mr Simms, which attribute Ms Dunn’s injury to the incident.
[31]DCB 26
45 Mr Batten was critical of Ms Dunn for failing to mention her neck injury to medical practitioners for some eight months. In December 2007, she saw Mr Weaver and did not mention an injury to her neck. It is however, reasonably common for injuries to the neck to be later revealed to be an injury to the shoulder and vice versa. Further, it is well known that pain can be referred from one part of the body to another. I accept this occurred in Ms Dunn’s case.
46 There is an issue about the extent to which the consequences Ms Dunn claims arose from the neck injury are organic as opposed to psychological in nature. Mr Batten referred to Meadows v Lichmore Pty Ltd,[32] which established that in a case where the pain and suffering consequences relied on to establish the serious injury are attributable to both physical and psychological causes, the central question is whether there is a substantial organic basis for those consequences.
[32][2013] VSCA 201
47 In this case, it is posited by some practitioners that Ms Dunn’s pain and suffering consequences are due to a psychological condition. I accept the medical evidence that Ms Dunn has depression. Whilst there are differing interpretations of the precise nature of the injury, I am satisfied by the opinions of Mr Jones, Dr Lajoie, and the more detailed reports of Mr Simm, that there is an organic basis for the pain in Ms Dunn’s neck that can be described as discogenic neck pain[33] arising from the degenerative C5-C6 disc associated with foraminal narrowing,[34] or an aggravation of early cervical disc degeneration.[35] I accept these opinions.
[33]Mr Jones at DCB 18
[34]Dr Lajoie at PCB 44
[35]Mr Simm at PCB 71
48 Significantly, as Mr Batten points out, in an assessment of the restrictions an injury places on a worker, one must look not only to what is lost, but also what has been retained. I accept Mr Batten’s submission that Ms Dunn receives little treatment and self-manages her condition. I further accept that Ms Dunn went on an overseas holiday shortly after the incident and that in some respects Ms Dunn has got on with her life. She has moved into her own home and maintains it, drives to work and does her own shopping. She visits the gym, Freedom Fitness. She works full time and has a job that she likes that pays more money than her previous job at Spotlight.
49 I accept the opinions of Dr Lajoie and Mr Simm that Ms Dunn has a neck injury. These doctors are of the view that there is justification for the plaintiff’s complaints of pain which are likely to continue.
50 On balance, from the evidence, and the medical opinions, I accept the following:
·Ms Dunn suffers ongoing pain in her neck and shoulder. Sometimes it flares up, depending on what she is doing.
·The pain requires regular medication.
·The injury affects her sleep as she wakes up approximately three times a night.
·There is restriction in her work activities.
·She cannot walk the same distances outside and take public transport to work as she did prior to the injury.
·She rarely goes out dancing as she used to, and does less gardening.
·Whilst still able to undertake the activities of daily living, those activities cause pain and are undertaken in a modified way to minimise pain.
·The situation is likely to remain the same, with most doctors agreeing that she will need to continue with medication and physiotherapy when needed.
51 Bearing these consequences in mind, and weighing in the balance on the one hand what has been lost, and what has been retained, I am satisfied, that in terms of pain and suffering, Ms Dunn does suffer consequences which are, objectively assessed, “more than significant or marked” and do reach the level of “very considerable”.
52 In these circumstances, I am prepared to grant leave to the plaintiff to bring common law proceedings.
53 I shall make consequent orders.
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