Elepans v Victorian WorkCover Authority
[2018] VCC 1315
•25 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-01686
| MARTIN JOHN ELEPANS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2018 | |
DATE OF JUDGMENT: | 25 September 2018 | |
CASE MAY BE CITED AS: | Elepans v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1315 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to bilateral shoulders – pain and suffering
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Peak Engineering & Anor v McKenzie [2014] VSCA 67; Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Carbone v Toyota Motor Corporation Australia Ltd [2017] VSCA 249
Judgment: Application successful.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith | Arnold Thomas Becker Lawyers |
| For the Defendant | Ms F Spencer | IDP Lawyers |
HER HONOUR:
Preliminary
1 In 1989, Mr Elepans commenced working as a carer for the Department of Human Services. In this role, he assisted clients with intellectual and psychiatric injuries to undertake the activities of daily living, so as to enable them to perform those tasks independently. In about 2009, Mr Elepans came to care for a client who was frequently violent towards him and his co-workers. As a consequence of numerous assaults committed against him, Mr Elepans suffered injuries to his left and right shoulders.
2 Mr Elepans claims to have suffered serious consequences as a result of his bilateral shoulder injuries in respect of his pain and suffering. In order for Mr Elepans to be entitled to claim common law damages, the impairment of his shoulders must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“ACA”).
3 The defendant accepts that Mr Elepans suffered these injuries during the course of his employment, but challenges his credibility and the seriousness of the consequences which he claims to suffer.
4 Only Mr Elepans was called to give evidence, and he was cross-examined. Also in evidence was an affidavit from his wife, together with medical reports and other material. I have read these 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.
5 For the reasons which follow, I am satisfied that the consequences to Mr Elepans from his bilateral shoulder injuries can be described as at least very considerable. I am therefore satisfied that Mr Elepans should be granted leave to commence common law proceedings for pain and suffering damages.
Mr Elepans’ life prior to suffering his shoulder injuries
6 Mr Elepans was born in New Zealand, where he completed schooling to the equivalent of Year 12. In 1988, he migrated to Australia and commenced employment with the defendant as a disability worker the following year. Mr Elepans was initially employed on a casual basis, but later became permanent part-time. He worked approximately 27 hours per week.
7 Mr Elepans is married, and has two children who are presently 19 and 20 years old. At the time Mr Elepans first suffered shoulder pain, his children were approximately 12 and 13 years old. At this time, he enjoyed informally coaching them in basketball.
8 Mr Elepans said that he had always been heavily involved in music and that playing the guitar was a huge part of his life. He said that he played gypsy jazz music and played in gigs about once or twice a week for approximately 1½ hours.
9 In addition, Mr Elepans said that he previously enjoyed swimming, riding a pushbike, playing golf and gardening. He said that he was active around his home and that he undertook maintenance tasks such as painting.
Mr Elepans’ unrelated medical conditions
10 In addition to suffering his shoulder injuries the subject of this claim, Mr Elepans suffered a lower back injury in January 2015, when he was attacked by a violent patient. Mr Elepans lodged a WorkCover claim for this injury.
11 For several months thereafter, Mr Elepans obtained physiotherapy treatment. He also had a period of time off work before returning to his pre-injury duties on 16 March 2015.
12 General practitioner, Dr Shira Bloch, of the Inkerman Medical Group, provided a medical report dated 9 February 2016, in which she stated that Mr Elepans suffered left lumbar back pain with facet joint dysfunction and muscle spasm. Dr Bloch was of the opinion that Mr Elepans did not require any ongoing medical treatment or medication for his lower back injury, and considered his long-term prognosis to be good. I note that Dr Bloch did not consider it necessary to refer Mr Elepans to a specialist, or for him to undergo radiology of his lumbar spine.
13 There is no evidence that this lower back injury persisted, and I therefore consider it to have been only a temporary aggravation which has not caused Mr Elepans any ongoing consequences.
14 Mr Elepans also suffered a psychiatric injury as a consequence of his employment, for which he lodged three separate WorkCover claims. One of these claims related to an incident in September 2014, when Mr Elepans was assaulted at work and trapped in an office with a violent client. Another of these claims related to alleged bullying at his work.
15 Mr Elepans said that he ceased work in April 2015, as a consequence of his psychiatric condition. He has not worked since that time.
16 Mr Elepans consulted general practitioners at the Inkerman Medical Group in relation to his psychiatric condition, as he considered them to understand the nature and demands of his workload, on the basis they also treated clients residing at the East St Kilda residential unit where he worked.
17 In a report dated 11 June 2015, Dr Ilana Laser from the Inkerman Medical Group referred to Mr Elepans’ psychiatric condition and his ongoing need for treatment with a psychologist. At that time, she did not consider Mr Elepans to have any capacity for employment. Mr Elepans said that he was diagnosed with Post-Traumatic Stress Disorder (“PTSD”) and was treated with psychological and psychiatric counselling for an extended period of time. Mr Elepans accepted that this condition has caused him to experience lowered moods, reduced energy, motivation, and libido, difficulties with focus and concentration, a muted sense of enthusiasm and general interest in life, and difficulties sleeping, which included suffering nightmares and flashbacks. He also accepted that his psychiatric condition had impacted upon his enjoyment of family and social activities.
18 Mr Elepans accepted that he felt he had burdened his wife, that his ability to cope with external demands had diminished, and that he often felt stressed, restless and agitated when he was pressured. He accepted that he had panic attacks up to twice a week, lasting up to two hours, and with varying symptoms. He also accepted that he had lost some weight as he had not eaten well, and that at times he had some suicidal ideation.
19 In cross-examination, Mr Elepans was taken to aspects of the history contained in a medico-legal report from psychiatrist, Associate Professor Peter Doherty, dated 23 June 2017. The report noted that Mr Elepans still suffered nightmares in relation to the work incidents, that he was unable to sleep, and that he felt irritable. Mr Elepans accepted that this history accurately reflected his state of being at the time he consulted Associate Professor Doherty.
20 Mr Elepans said that his psychiatric condition has moderately improved since June last year. However, he said that he continues to experience recurring and residual symptoms from his PTSD. In particular, he said that his ability to engage in regular family activities is still affected by his heightened state of arousal. He also said that he can be agitated or irritable with his family members, especially when he is under a lot of pressure.
21 In considering this application, I must only consider those consequences which are referable to Mr Elepans’ claimed bilateral shoulder impairment. I must disregard any consequences which arise from Mr Elepans’ ongoing psychiatric impairment.[1]
[1]Peak Engineering Pty Ltd v Victorian WorkCover Authority [2014] VSCA 67
22 As was stated by Maxwell P in Peak Engineering Pty Ltd v Victorian WorkCover Authority:
“… where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.”[2]
[2](Supra) at paragraph [24]
23 An overlap in consequences from multiple impairments does not automatically disentitle a plaintiff. As was noted by Ashley J in Grech v Orica Australia Pty Ltd:[3]
“It is quite possible – it will be a matter of determination according to the evidence in the particular case – that each of two or more compensable injuries is a legally sufficient cause of the same consequences.
… it is enough to say that the Act, with its predecessors, contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.”[4]
[3]Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172 at [57]–[58]
[4](Supra) at paragraph [58]
Circumstances in which Mr Elepans suffered his bilateral shoulder injuries
24 Mr Elepans worked as a carer at a residential unit in East St Kilda, where he assisted clients to develop skills for independent living. In 2009, a new client named Mr Johnston, came to live in the unit. Mr Elepans described Mr Johnston as a non-verbal person, with highly aggressive tendencies, such that he was abusive to Mr Elepans and other staff on an “almost daily basis”.
25 In his first affidavit, sworn on 14 December 2016, Mr Elepans referred to a multitude of assaults occurring over a period of time, but made particular reference to two specific incidents. The first occurred on 14 October 2010, and caused him to suffer pain in both his shoulders; the second occurred on 23 August 2010, and caused him to suffer pain in his right arm and shoulder. Mr Elepans stated that there were other assaults, but that he could not provide the precise dates as he did not have access to the defendant’s “Disease Injury Near Miss Accident Report” forms.
26 In cross-examination, Mr Elepans said that he had been assaulted on many occasions, such that he was unable to recall the specific details of each assault. However, he said that there were assaults in which his arms had been grabbed by patients, including by Mr Johnston, and that the only way to stop Mr Johnston was to hold his arms until he tired.
27 Mr Elepans said that he began to experience problems with his shoulders soon after Mr Johnston came to reside at the unit, but that he “battled on” with shoulder pain for some time before consulting his general practitioner.
28 On 15 June 2010, Mr Elepans consulted his general practitioner, Dr Andrew Fiedler, at the Victoria Medical Centre. Dr Fiedler’s clinical note of this attendance referred to Mr Elepans suffering “chronic recurring neck pain for several years”, together with pain in his shoulders. Dr Fiedler referred to Mr Elepans working with intellectually disabled clients who were physically aggressive, with frequent incidents involving the police.
29 Mr Elepans was asked about this clinical note in cross-examination, and said that he could not recall having had neck pain for several years. When asked about the frequency of the incidents, Mr Elepans said that the assaults were a “daily occurrence”.
30 On 16 February 2011, Mr Elepans consulted Dr Fiedler, who recorded that four months prior to their consultation Mr Elepans had developed a painful left shoulder, which came on over a two-week period. It was noted that Mr Elepans sometimes had to restrain violent patients, but that he could not recall any particular incident relating to, or to which he could attribute, the onset of such symptoms. When asked about this attendance in cross-examination, Mr Elepans said he could not recall exactly what he had said to Dr Fiedler, but that his left shoulder pain had “crept up” on him.
31 On 2 March 2011, Dr Fiedler arranged for an x-ray and ultrasound to be taken of Mr Elepans’ left shoulder. The x-ray was reported as normal and the ultrasound was reported as demonstrating biceps tendinopathy and a subdeltoid bursitis.
32 On 20 April 2011, Mr Elepans lodged a worker’s injury claim form in respect of his bilateral shoulder injuries. In this claim form he stated that he was “continually assaulted” by a person with an intellectual disability, and that his injury first occurred on 14 October 2009. Mr Elepans stated that he had not reported the injury at an earlier point in time, as “there were so many assaults. I was hoping that the strains would disappear.”
33 On 2 June 2011, Mr Elepans underwent a CT-guided hydrodilatation on his left shoulder.
34 During this period, Mr Elepans obtained physiotherapy treatment from physiotherapist, Joshua Ferguson, at JBA Physio in Glen Huntly. Mr Elepans said that he underwent this physiotherapy for a period of five to six months, and that he found it extremely painful when he was forced to move his shoulders.
35 On 23 June 2011, an x-ray and ultrasound were taken of Mr Elepans’ right shoulder. The x-ray was reported as normal, and the ultrasound was reported as demonstrating bursal thickening and mild impingement, consistent with a mild subdeltoid bursitis.
36 On 29 June 2011, Dr Fiedler referred Mr Elepans to orthopaedic surgeon, Mr Ash Chehata. At that time, Mr Chehata obtained a history from Mr Elepans that he had been involved in multiple violent attacks over the previous year, during which he had used both his arms to defend himself. Mr Chehata noted that Mr Elepans complained of pain and limitations with motion in both shoulders. Mr Chehata considered that the violent assaults could cause “any number of traumatic tears, causing secondary adhesive capsulitis in both shoulders.”
37 Mr Chehata diagnosed Mr Elepans as suffering severe frozen shoulder in both arms, with his left shoulder being worse than his right. Mr Chehata recommended hydrodilatation of both shoulders, in circumstances where Mr Elepans was suffering “severe bilateral clinical signs of adhesive capsulitis”.
38 These hydrodilatation procedures were subsequently performed on Mr Elepans’ left and right shoulders.
39 Mr Elepans had attended the Inkerman Medical Group on numerous occasions since April 2009, and had sought medical advice and treatment in respect of a range of matters, including lower back pain in early 2015 and his psychiatric condition from April 2015. However, it was not until 17 December 2015 that he complained of ongoing bilateral shoulder pain.
40 Mr Elepans said that his bilateral shoulder pain had persisted from the time he first suffered his injury, but that he did not seek active medical treatment as he was of the understanding that nothing could be done.
41 On 11 October 2017, an MRI scan was performed on Mr Elepans’ right shoulder. It was reported as demonstrating moderate-grade tendinopathy of the supraspinatus tendon, with a small articular surface partial tear affecting its anterior fibres. Low-grade inflammatory change and fluid were also noted in the subdeltoid bursal space, with mild chronic thickening and scarring of the axillary pouch, compatible with previous capsular trauma and/or capsulitis.
42 On 13 October 2017, an MRI scan was performed on Mr Elepans’ left shoulder. It was reported as demonstrating mild tendinopathy of the supraspinatus tendon with bursal surface fraying, together with inflammatory change and fluid in the subdeltoid bursal space. There was also mild chronic thickening and scarring of the axillary pouch and anterior capsule, compatible with previous capsular trauma and/or capsulitis.
43 In March 2018, Mr Elepans was reviewed by Mr Chehata, who noted that multiple hydrodilatations and cortisone injections had failed to improve his symptoms. On examination, Mr Chehata noted restricted movement that was “highly irritable”. Mr Chehata considered that Mr Elepans was restricted in any overhead and shoulder activity. He further noted that repetitive activity relating to the long head of the biceps would prevent Mr Elepans from performing most activities of daily living.
44 Mr Chehata confirmed his previous diagnosis of bilateral adhesive capsulitis, with a right-sided partial articular surface tear and left-sided widespread tendinopathy and bursitis. Mr Chehata did not recommend surgical treatment.
45 Mr Elepans said that he has constant pain in both shoulders, with his left shoulder being worse than his right. He said that some days are better than others and that his philosophy is to “just put up with the pain”. Mr Elepans said that while the extent of movement in his shoulders has improved, he is still left with permanent restrictions. He said that he experiences increased pain with activities that place stress on his shoulders, and that he experiences shoulder pain in a very short period of time when he uses his arms. Mr Elepans said that he has difficulty with repetitive shoulder movements, heavy lifting, and activities which involve pushing and pulling.
46 Mr Elepans said that the gypsy jazz music he previously played involved a “strumming of the right hand fast”. He said that, because of his bilateral shoulder pain, he has retrained himself to play a more classical form of guitar, which allows him to keep his hands static. However, Mr Elepans said that he now plays his guitar much less frequently than he did prior to suffering his shoulder injuries.
47 Mr Elepans said that he has continued to play some musical gigs, but that such gigs are now less frequent than prior to suffering his shoulder injuries. In cross‑examination, Mr Elepans accepted that he played about 10 gigs between 2011 and 2012, 1 gig in 2013, 4 gigs in 2014 and 9 gigs between 2015 and 2016. Mr Elepans said that he has not played a gig for a year. He also said that when he does now play a gig it is only for about 45 minutes, and he no longer plays gypsy jazz music.
48 Mr Elepans said that he has given up golf, and that he now avoids swimming, basketball and bike riding because of his bilateral shoulder pain.
49 Mr Elepans said that he is now restricted in the gardening that he can undertake, as well as other household tasks, such as painting.
50 Mr Elepans said that he sometimes wakes because of shoulder pain, and that he has to sleep on his stomach to avoid hurting his shoulders. Mr Elepans also said that his sexual relations with his wife have been affected due to his shoulder injuries.
51 Mr Elepans said that he uses Panadol and Ibuprofen, but that he generally avoids taking medication as he does not consider it to be a long-term solution to his pain.
52 Mr Elepans relied upon an affidavit of his wife, Ms Gitte Jensen, whom he married in 2001, in support of his claim. Ms Jensen stated that the guitar used to be a significant aspect of Mr Elepans’ life, but that he no longer rehearses or plays as regularly as he used to.
53 Ms Jensen said that she now performs most of the heavier work, maintenance and gardening around their home. She also said that she painted the house alone.
Medico-legal evidence
54 Mr Elepans’ solicitors arranged for him to be examined by orthopaedic surgeon, Mr Russell Miller, in June 2017. In his report dated 13 June 2017,[5] Mr Miller noted that Mr Elepans presented with a complaint of pain and discomfort in both shoulders, and that such pain was worse with repetitive and overhead activities. Aside from his physical injuries, it was also noted that Mr Elepans had developed problems with anxiety, depression, panic attacks and PTSD.
[5]The plaintiff’s court book and the first page of this report incorrectly refer to it as being dated 8 May 2017.
55 Mr Miller examined Mr Elepans and reviewed the radiology films before diagnosing him as suffering rotator cuff dysfunction, capsulitis and mild frozen shoulder, and noting that his symptoms were worse on the left side.
56 Mr Miller was of the opinion that Mr Elepans had a constitutional predisposition to develop shoulder problems, and thought it likely that the work events had aggravated the pre-existing disease in his shoulder and caused further superimposed injury. He therefore considered Mr Elepans’ current clinical status in relation to both his left and right shoulders to be substantially work-related.
57 Mr Miller was of the opinion that Mr Elepans’ treatment to date had been appropriate, but thought it possible he may benefit from surgical intervention to the left and right shoulders. In undertaking a lifestyle evaluation for Mr Elepans, Mr Miller considered that, as a consequence of his bilateral shoulder injuries, Mr Elepans had a reduced capacity for heavy domestic and gardening activities, and a reduction in his capacity for pre-injury leisure and recreational activities.
58 Mr Elepans’ solicitors also arranged for him to be examined by orthopaedic surgeon, Mr Garry Grossbard, in March 2018.[6] In his report dated 13 March 2018, Mr Grossbard noted that Mr Elepans had been assaulted by a client on multiple occasions, occurring on an almost daily basis, and that he had been required to hold the client’s arms with his own arms fully flexed and elevated. Mr Grossbard then noted that Mr Elepans ceased work in 2015 for a combination of psychological reasons, shoulder symptoms and lower back pain.
[6]The commencement of the report refers to the examination being held on 13 March 2016. However given the date of the report, I consider it likely that this was intended to read 13 March 2018.
59 Mr Grossbard noted that Mr Elepans experienced intermittent right shoulder pain that was present about 50 per cent of the time. It was also noted that Mr Elepans experienced similar symptoms on his left side.
60 When Mr Elepans was cross-examined in relation to Mr Grossbard’s note that he suffered pain on an intermittent basis, he said that when his shoulder is touched, it is constantly sore, but that the sharp shooting pains are not there all the time.
61 Mr Grossbard diagnosed Mr Elepans as suffering from the residual effects of bilateral shoulder capsulitis with ongoing symptoms, particularly of weakness and restricted motion.
62 Mr Grossbard considered that ongoing management should remain conservative. He was of the opinion that Mr Elepans’ bilateral shoulder pain would restrict him from returning to any activity which requires overhead or forceful repetitive movement of his arms.
63 The defendant relied upon a report by occupational therapist, Dr Robyn Horsley, obtained by Mr Elepans’ solicitors in April 2018. In her report dated 10 April 2018, Dr Horsley detailed Mr Elepans’ educational and employment history, together with his current complaints of bilateral shoulder pain, and primary and secondary psychological issues.
64 Dr Horsley considered that Mr Elepans presented clinically with a good range of motion in both shoulders, with very mild restriction in external rotation, more in the right than the left. Dr Horsley was of the opinion that Mr Elepans had developed a chronic pain syndrome and that his primary disability related to his psychiatric status.
65 Dr Horsley was of the opinion that, as a consequence of his bilateral shoulder injuries, Mr Elepans would be subject to the following work restrictions:
· avoidance of repetitive over reaching;
· avoidance of repetitive pushing and pulling;
· avoidance of working above shoulder height repetitively. Ideally, he should work between shoulder and waist height;
· avoidance of forceful activities involving his bilateral shoulders;
· avoidance of static postures involving his bilateral shoulders;
· avoidance of lifting items greater than 10–12 kilograms, except on an occasional basis;
· avoidance of lifting items to 10 kilograms on a repetitive basis.
66 In considering his bilateral shoulder injuries in isolation, Dr Horsley was of the opinion that Mr Elepans was permanently unfit to work as a disability worker in a residential setting, but thought that he would have the capacity to work in the disability sector, in circumstances where the work was primarily office-based and not client facing, and provided he was working with the restrictions as outlined above.
67 The defendant also relied upon a report from orthopaedic surgeon, Mr Michael Dooley, who examined Mr Elepans in July 2018. In his report dated 25 July 2018, Mr Dooley noted that Mr Elepans complained of ongoing pain in both shoulders and upper arms. Mr Dooley was of the opinion that Mr Elepans had developed adhesive capsulitis of his left and right shoulders. He stated that this was a naturally-occurring condition. Mr Dooley then noted that resisting aggressive clients may have caused Mr Elepans to suffer strain-type injuries to his neck and arms. Mr Dooley was then prepared to accept that Mr Elepans’ work did not cause his adhesive capsulitis, but caused it to become aggravated.
68 Mr Dooley considered that Mr Elepans had mild to moderate restriction of movement in both shoulders, and thought that he would continue to suffer intermittent pain in his shoulders.
69 Mr Dooley was of the opinion that Mr Elepans did not require any specific orthopaedic treatment at that point in time.
Credibility
70 I considered Mr Elepans to be a creditworthy witness, who gave frank evidence to the court.
71 On many occasions, Mr Elepans conceded that he could not recall the specific history given to either his treating doctors or to the medico-legal doctors. I consider this to be understandable given the number of years that have passed since he first suffered his injuries. I also note that he suffers a psychiatric condition which impacts upon his memory and concentration.
72 Mr Elepans was cross-examined at length regarding his reports of shoulder pain, and whether such pain was constant or intermittent. I accept his evidence that, from the time since he first suffered his shoulder injury, the outer aspect of his upper arms, in the area just below his shoulders, has been tender and painful to touch. As such, Mr Elepans described such pain as constant, on the basis that the tenderness is always there. Mr Elepans also said that he is always limited, in that he is unable to lift his arms in an upright position. Mr Elepans then explained that his shoulder pain is exacerbated by activity and that he, at times, experiences shooting pain as well as aches in his arms.
73 I considered the manner in which Mr Elepans detailed his experience of suffering such pain to be credible, and am of the opinion that any inconsistency between his oral evidence and that which has been recorded by Mr Grossbard to be insignificant.
74 I also accepted Mr Elepans’ explanation as to the reasons for which there were prolonged gaps in obtaining medical treatment.
75 In considering his evidence as a whole, I am satisfied that Mr Elepans was a credible witness. In particular, I am satisfied that his account of his shoulder pain and his description of its disabling effects is reliable.
Pain and suffering consequences
76 To succeed in his application, Mr Elepans must satisfy me that the consequences of his bilateral shoulder injuries are more than “marked” or “significant”, and “at least very considerable”.
77 In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[7] 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.
[7]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
78 Mr Elepans said that he has continual pain in the outer aspect of his upper arm, and that this area is painful when touched. In addition, Mr Elepans said that the pain in his shoulders increases with activity, and that at times he suffers shooting pain in his arms.
79Mr Elepans also said that, due to his ongoing shoulder pain, he must sleep on his stomach to avoid touching either of his shoulders. In circumstances where Mr Elepans’ sleep is interfered with as a consequence of his psychiatric condition, I consider this additional interference with sleep from his shoulder pain to be significant.
80Mr Elepans takes over-the-counter painkilling medication a couple of times a week. I consider this to be a relatively modest ingestion of medication, but accept Mr Elepans’ evidence that he wants to avoid taking medication all the time.
81I accept Mr Elepans’ evidence that he now plays a different style of music which involves less vigorous strumming. I also accept that he now performs much less frequently than he did prior to suffering his bilateral shoulder injuries.
82In addition, I am satisfied that as a consequence of his bilateral shoulder injuries, Mr Elepans no longer plays golf and avoids swimming and cycling. It also previously restricted Mr Elepans’ ability to coach his children in basketball, although I note that his children are now both young adults.
83Mr Miller, Mr Grossbard and Mr Dooley each acknowledged that Mr Elepans will be left with permanent restrictions as a consequence of his bilateral shoulder injuries. While Dr Horsley was of the opinion that Mr Elepans suffered a chronic pain condition, she also acknowledged that his bilateral shoulder injuries imposed numerous restrictions upon his physical capacity to perform work.
84I am satisfied that Mr Elepans ceased work, and has not returned to work, as a consequence of his psychiatric condition. Therefore, while I do not consider this relevant to his pain and suffering consequences, the physical restrictions identified in relation to his work capacity do impact, to some degree, upon his ability to perform tasks around the home.
85In 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” (sic).[8]
[8]Carbone v Toyota Motor Corporation Australia Ltd [2017] VSCA 249 at paragraph [66]
86In view of the above, I am satisfied that the pain and suffering consequences to Mr Elepans from his bilateral shoulder injuries can be described as “very considerable”. I therefore grant him to leave to commence common law proceedings for pain and suffering damages.
87 I will make the consequent orders.
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