Ellul v Anglicare Victoria
[2013] VCC 403
•19 March 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-02989
| LYNDA ELLUL | Plaintiff |
| v | |
| ANGLICARE VICTORIA | Defendant |
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JUDGE: | HER HONOUR JUDGE BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 13 March 2013 | |
DATE OF JUDGMENT: | 19 March 2013 | |
CASE MAY BE CITED AS: | Ellul v Anglicare Victoria | |
| MEDIUM NEUTRAL CITATION: | [2013] VCC 403 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – injury to the right shoulder – pain and suffering only – whether consequences to the plaintiff are “serious”
LEGISLATION CITED – Accident Compensation Act 1985, s134AB(16)(b), 134AB(37) and (38)
CASES CITED – Aburrow v Network Personnel Pty Ltd and WorkSafe [2013] VSCA 46; Ansett Australia Ltd v Taylor [2006] VSCA 171; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti (1994) 1 VR 436; Stijepic v One Force Group Australia Pty Ltd & Amor (2009) VSCA 181.
Judgment: Leave granted to bring proceedings for damages for pain and suffering only.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Saunders | Slater & Gordon |
| For the Defendant | Mr J Simpson | Thomsons Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on 9 May 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brought this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. The body function relied on was the right shoulder.
4 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
5 The impairment of the body function must be permanent.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
8 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Petkovski v Galletti.[2]
[1](2005) 14 VR 622
[2] [1994] 1 VR 436
10 The plaintiff relied upon two affidavits and was cross examined. She also relied on an affidavit sworn by her daughter, Megan Lines, on 8 March 2013. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
11 The plaintiff is presently aged fifty nine, having been born in November 1953. She is right hand dominant.
12 The plaintiff was educated to Year 10 and thereafter undertook a few years of a hairdressing apprenticeship. She then did clerical work, before commencing work as a childcare worker for the Department of Human Services (“the Department”).
13 The plaintiff worked for the Department for a number of years as a childcare worker and a youth worker. She subsequently completed an Associated Diploma of Arts, Human Services at Monash University in 1997. The plaintiff also worked for the Uniting Church as a family worker and then for the Salvation Army in a similar role.
14 The plaintiff returned to the Department for a period of time before, in March 2007, she commenced work with the defendant as a manager of a family services program. She undertook this work, initially, part time, and then full time.
15 The plaintiff suffered injury on the said date whilst working at the defendant’s Preston office when her foot became caught on torn carpet, causing her to fall over onto her outstretched right arm (“the incident”).
16 After the incident, the plaintiff had a lot of right arm and shoulder pain and was driven home. Over the weekend, her pain persisted and on the following Monday, she saw her general practitioner, Dr Maragoudakis. The plaintiff went off work and started physiotherapy with Simon Hogg. She was prescribed painkillers and anti inflammatories.
17 The plaintiff’s right shoulder problem persisted and she was referred to Mr Broughton, orthopaedic surgeon.
18 On 13 August 2008, Mr Broughton operated on the plaintiff’s right shoulder (“the first operation”). The plaintiff returned to work two months later. She continued working with the defendant until December 2008 when she obtained a job at Family Life in Chelsea as a program manager.
19 The plaintiff deposed in February 2012, she continued to have right shoulder difficulties after the first operation and was undergoing physiotherapy locally. The plaintiff’s right shoulder pain persisted. On 12 April 2010 she had a local anaesthetic and steroid injection which gave her relief for only a week.
20 The plaintiff had a further operation carried out by Mr Broughton on 14 October 2010 (“the second operation”). That procedure did help in providing some relief from the constant dragging and ache the plaintiff felt in her right shoulder.
21 However, the plaintiff continued to have pain and frequent aches in her right shoulder. These symptoms were aggravated by activities such as vacuuming or cleaning the bathroom. Thus, the plaintiff tried to do a lot more activities with her left arm. If she reached up too high or out too far with her right arm, that aggravated her right shoulder pain, as did rolling onto her right side when sleeping. She got an ache in her right shoulder if she used the computer for too long at work.
22 In about 2010, the plaintiff moved to a smaller premises as she had difficulty maintaining her garden and house by herself. Prior to the incident, she enjoyed gardening and missed not being able to freely garden as she used to.
23 When the plaintiff worked for the Salvation Army, she was assaulted by a client (“the assault”) in 2002 and thereafter had some pain in her right shoulder. She had previously forgotten to tell doctors when they asked her about any history of shoulder pain because she had forgotten about the assault until recently reminded.
24 After six months physiotherapy treatment following the assault, the plaintiff felt no shoulder pain and did not suffer any limitations from that injury.
25 The plaintiff swore a further affidavit in March 2013. She then deposed her right arm and shoulder have remained about the same.
26 The plaintiff continues to see Dr Maragoudakis from time to time about her shoulder, and sees him when she gets a flare up of pain. That is especially so when she needs stronger medication than she can get over the counter to control her pain. She has also had some further physiotherapy in mid 2012 after a flare up of pain and right shoulder problems.
27 The plaintiff continues to regularly take over the counter pain medication, such as Panadol and anti inflammatories. On average, two to three times a week, she takes two tablets.
28 The plaintiff’s shoulder problem impacts on her daily life, limiting the simple day to day things that she can do. She has also had to change the way she does other things so as to not aggravate her shoulder. For example, she now tends to favour her left side and carry items such as shopping in her left hand.
29 The plaintiff cannot mow the lawns and has someone do them for her. Getting things down from cupboards or reaching high for any tasks, she now uses her left shoulder.
30 The plaintiff’s right shoulder pain fluctuates in its strength. If things are bad or she uses her right arm too much, the ache gets very bad and that is when she also takes stronger medication. If she overexerts her right shoulder, she also gets a pins and needles sensation.
31 Whilst using a computer at work over a long day causes an increase in pain, the plaintiff continues her present job at Family Life and really enjoys her work.
32 The plaintiff previously restored old furniture as a hobby and really enjoyed doing so. She can no longer engage in this hobby nor can she do anything repetitive with her right shoulder. She cannot use an electric or manual sander or exert much force at all on her shoulder with a screw driver as such activity causes an immediate increase in pain. For a similar reason, tasks like vacuuming and cleaning are still a huge problem for the plaintiff.
33 In cross examination, the plaintiff described how when she went shopping she tried to be mindful and carry bags in her left hand but there were times when she did not and carried them in her right. She could carry a number of shopping bags in her right hand but did so with difficulty.[3] She would always try to use her left hand.[4]
[3]Transcript (“T”) 37
[4]T38
34 When asked about being shown in the film carrying shopping bags briefly in her right hand, whilst the plaintiff agreed she did not appear to be in any difficulty she explained that she had never said she could not do things – “its consequences… the restriction and the pain come afterwards.”[5]
[5]T39
35 The plaintiff noted that it was a short piece of film and it does not show times when she does not use her right arm and it does not show that she has to take Panadol and use heat packs afterwards.[6]
[6]T39
Lay Evidence
36 The plaintiff’s thirty-nine year old daughter, Megan Ellul, swore an affidavit on 7 March 2013.
37 Ms Ellul could recall the assault in early 2002. Thereafter the plaintiff experienced some pain in her back, neck and right shoulder for which she had physiotherapy, but all injuries resolved completed.
38 Anxiety developed by the plaintiff as a result of the assault was her greatest problem. The plaintiff attended a psychologist as she was having difficulty eating and sleeping. Those symptoms resolved after a number of months and the plaintiff then returned to her normal unrestricted life.
39 When the plaintiff commenced work with the defendant she was fit and well until injuring her shoulder in the incident. Since then, the plaintiff has had two right shoulder operations. After those procedures, Ms Ellul had to look after her, helping the plaintiff with washing and ironing, cooking her meals and assisting her getting dressed. The plaintiff also had difficulty showering as a result of being unable to put any pressure on her right arm, and Ms Ellul also assisted her in that regard.
40 Ms Ellul catches up with the plaintiff once or twice a week and still assists her with household chores like ironing and cleaning. Every ten days or so she goes to the plaintiff’s house and vacuums. The plaintiff still tries to do as much as she can around the house but, if she does too much, Ms Ellul can see that the plaintiff’s right shoulder aches and her pain increases. The plaintiff holds her arm and rubs it on those occasions. She has told Ms Ellul that working on a computer for lengthy periods increases her right shoulder ache.
41 The plaintiff used to enjoy gardening and she weeded the garden and mowed the lawns regularly. She had previously lived in a house which had a very large garden area, but as a result of her injury she could not maintain the garden. About two years ago, the plaintiff moved to a smaller house with a smaller garden and she now pays a gardener to do most of the gardening and Ms Ellul’s brother helps out occasionally.
42 Before the incident, the plaintiff was also a keen furniture restorer and she bought second hand furniture, such as chairs and tables, outdoor settings and bookshelves, to restore. Restoration work required her to sand back the wood and then paint and lacquer it. That work was repetitive. Since injuring her shoulder the plaintiff had been unable to pursue this hobby, as it increased her pain.
43 The plaintiff now has more difficulty socialising and has told Ms Ellul that she worried her shoulder would seize up when she is out. At family functions, Ms Ellul has noticed that the plaintiff is unable to lift her nephew’s three year old and has difficulty holding her niece’s six months old.
The Plaintiff’s medical evidence
44 Dr Maragoudakis provided a report on 7 March 2013.
45 Dr Maragoudakis noted in the 2002 assault the main injury was psychological. However, there was a degree of impairment of the right shoulder with a diagnosis of a soft tissue strain. There were no investigations and the plaintiff did not see a specialist. She was managed with Panadol, physiotherapy and acupuncture and stated that she made a full recovery over the next two months and returned to full duties. She did not have any further problems with her shoulder until the incident.
46 Dr Maragoudakis started treating the plaintiff in June 2007 and first saw her in relation to the incident injury on 12 May 2008, when she told him of falling on her outstretching right shoulder.
47 On initial examination, the plaintiff was in significant distress and there was clinical evidence of significant tenderness to the lateral right clavicle, suggesting an underlying fracture. She was treated with analgesics, rested for two days and was referred for scanning. Those investigations confirmed a subtle fracture of the lateral right clavicle which was undisplaced and also a large full thickness tear to the right supraspinatus tendon close to its insertion.
48 Dr Maragoudakis considered that the injury definitely required surgery. Thus he referred the plaintiff to Mr Broughton, who after an MRI which confirmed two tears in the right supraspinatus tendon, sought approval for surgery. The plaintiff continued on analgesics and anti inflammatories and was given a further month off work.
49 The first operation took place on 14 August and was fortunately successful and uncomplicated and the plaintiff commenced physiotherapy a week later. A month post operatively, she was progressing adequately with about three physiotherapy sessions a week. There was significant improvement noted on 5 September with significant progress with much reduced pain and markedly improved range and power of movement. The plaintiff was keen to return to modified part time light duties and was certified accordingly.
50 Further improvement was noted in October 2008 and the plaintiff was then keen to proceed to full time pre injury duties.
51 The plaintiff was next seen in January 2009 following some intensive gardening over the weekend. She then complained of mild right shoulder muscular discomfort and was diagnosed with a mild muscular strain. She only wanted a day off to rest. Clinical examination was essentially unremarkable with close to full power and range of movement. It was noted the plaintiff had ceased physiotherapy but was urged to continue that treatment in the medium term.
52 The next review was in December 2009 when the plaintiff was noted to be reasonably stable but still complained of flare ups on more repetitive work. Anti-inflammatories were helping and she was given a further prescription. She was urged to continue physiotherapy, not having had that treatment for a while.
53 The plaintiff was next seen in late February 2010 complaining of increased pain and restriction recently, despite restarting physiotherapy. She displayed clinical weakness and impingement and she was referred back to the surgeon.
54 Dr Maragoudakiis did not hear back from the plaintiff until August 2010, when she stated a full thickness tear was found by the surgeon and she was to undergo surgery.
55 The second operation in October was uncomplicated. The plaintiff returned to Dr Maragoudakis in December, requesting a return to work under modified duties, and was certified on that basis until normal duties in January 2011. On review in May 2011, the plaintiff said she was doing fine and having monthly physiotherapy.
56 The plaintiff was last reviewed in mid September 2011. She said she had deteriorated since her physiotherapy entitlements were curtailed a few months earlier. Clinically, she displayed weakness, pain and impingement and was advised to go to conciliation and restart physiotherapy.
57 Dr Maragoudakis has seen the plaintiff twice since then, on 11 January and 6 March this year. The plaintiff advised she did not proceed to conciliation to obtain funding for further physiotherapy as she was sick of WorkCover and she could not afford any further treatment. The plaintiff advised she had continued working full time, doing predominantly light duties with the computer and there was no lifting.
58 On detailed questioning, the plaintiff told Dr Maragoudakis that her right shoulder felt only fifty per cent recovered regarding strength and stamina. She had daily pain and discomfort, especially towards the end of the day, requiring regular analgesics. She often felt that her shoulder was dragging down and causing associated pins and needles to her right hand.
59 Dr Maragoudakis noted the plaintiff had suffered three exacerbations over the last eighteen months, each causing significant pain, weakness and restriction for about a week. The first was after cleaning the oven and there was no obvious cause for the other two. The first required physiotherapy, while, due to financial constraints, the other two were managed with hot/cold packs and analgesia.
60 Dr Maragoudakis thought that the injury had caused significant compromise to the plaintiff’s ability to do housework and she had significant difficulty and often inability to clean the oven, windows, do vacuuming, hang out the washing, and she could not do gardening or wash walls. She could no longer undertake her hobby of restoring furniture. She also ceased boating which she previously enjoyed.
61 Dr Maragoudakis thought the injury had resulted in a mild degree of depression as the plaintiff often felt down and flat as such, and she was embarrassed and aware of the scarring.
62 Dr Maragoudakis diagnosed a traumatic fracture to the right clavicle and full thickness tearing of the right supraspinatus tendon. He noted the clavicular fracture was treated conservatively and recovered completely. The tendon tear required two operations and rehabilitation with intensive physiotherapy.
63 In his opinion, the plaintiff had developed a moderate degree of permanent impairment and her prognosis was reasonable for the continuation of her current office duties. He thought the plaintiff’s condition had stabilised and she would probably continue to experience exacerbations, each requiring physiotherapy and medication and time off work.
64 Dr Maragoudakis thought surgery was unlikely but could not be ruled out. In his view, any exacerbation could cause subsequent re tearing and, thus, there was always the possibility of long term deterioration requiring surgical intervention, the likelihood of which he could not quantify.
65 Dr Maragoudakis considered the plaintiff presently had a capacity for her current office work with no lifting. Her capacity for general work was severely restricted as she would be unable to undertake more physical work requiring lifting or repetitive use of her right upper limb. He noted the major concern was in the event of the plaintiff losing her present job, her work prospects would be severely limited.
66 Dr Maragoudakis completed a medical practitioner questionnaire on 11 March 2010, in which he set out that he was treating chronic shoulder pain, rotator cuff pathology and the plaintiff was undertaking physiotherapy as needed.
67 In July 2008, Mr Broughton wrote to CGU, requesting funding for an arthroscopy of the right shoulder, having first seen the plaintiff two weeks earlier.
68 Mr Broughton noted the x-ray showed a subtle fracture of the lateral end of the clavicle which he felt would probably unite without too much trouble. However, the ultrasound and July 2008 MRI scan showed a full-thickness tear of the rotator cuff.
69 Thus, on 13 August 2008, Mr Broughton operated on the plaintiff’s right shoulder. Under anaesthetic, he found the plaintiff had full movement and Grade 1 interior instability. There was a full thickness tear at the insertion of supraspinatus about two centimetres in length.
70 Mr Broughton performed an arthroscopic subacromial decompression with acromioplasty and went through a mini open approach, and repaired the full thickness tear reforming the natural footprint of the supraspinatus.
71 On review on 22 August 2008, Mr Broughton arranged for the plaintiff to have physiotherapy to build up strength and movement. He had heard from the physiotherapist on 17 November 2008 that the plaintiff was making very good progress post operatively.
72 Mr Broughton then thought that the prognosis was uncertain. He noted the plaintiff had a substantial injury to the shoulder that had been repaired and she had made good progress following the first operation. However, it was possible that she may have some restriction of duties such that she is unable to do heavy, repetitive, overhead activities and may have to look for lighter work in the long term.
73 Mr Broughton next reported in July 2011, noting he had seen the plaintiff in March 2010 when she was having ongoing problems with the right shoulder eighteen months after the first operation. She then complained of the shoulder locking, being niggly and aching quite a bit.
74 Mr Broughton arranged for an x-ray and ultrasound and reviewed the plaintiff on 12 April 2010. He thought that the tendon was intact, although perhaps a little thin. He recommended a local anaesthetic and steroid injection into the subacromial space and then some physiotherapy to reduce any inflammation and to build up strength.
75 Mr Broughton reviewed the plaintiff again on 24 August 2010 when she reported the injection worked for a week but the pain returned as bad as ever. He noted a recent MRI showed a full thickness tear of the rotator cuff. He discussed the options with the plaintiff and felt it would be worthwhile attempting a further repair.
76 The second operation took place on 14 October 2010. Mr Broughton noted that there was damage to the biceps tendon and full thickness tear at the insertion of the supraspinatus, both of which were repaired.
77 Mr Broughton saw the plaintiff a week later and arranged for her to start on some physiotherapy. Arrangements were made that if she had any problems with recovery, the physiotherapist would send her back for review. Mr Broughton had not seen the plaintiff since then.
78 Mr Broughton diagnosed a tear of the rotator cuff and biceps tendon of the right shoulder. He thought the prognosis was uncertain, noting that many of those settle adequately and that the patients were left with residual symptoms which preclude heavy, repetitive, overhead activity. He thought it unlikely the plaintiff would require further surgery, noting it was possible that the tendon could tear again through degeneration. He thought it unlikely the plaintiff would be able to perform full normal activities with her shoulder and did not think she would be able to do any overhead, repetitive work.
79 Mr Broughton wrote to Dr Maragoudakis in October 2010 following the second operation. He noted he had referred the plaintiff for physiotherapy so she could continue passive mobilisation and he would see her again if there were any ongoing concerns about progress.
80 Mr Broughton advised the routine plan would be to aim for light duties in four to six weeks and full duties in eight to twelve weeks, but that might have to be fine tuned according to progress and physiotherapy.
81 Mr Khan, orthopaedic surgeon, examined the plaintiff in May 2012. The plaintiff then told him she had to take medication to sleep and she supported her right shoulder with pillows. She avoided taking strong medication and relied on physiotherapy and painkillers.
82 On examination, there was some tenderness in front of the shoulder and along the long head of biceps. The plaintiff was quite tender anteriorly in the area of the right shoulder. When asked to elevate and abduct her arms, she did so in a jerking manner, as it was associated with some discomfort visibly shown in her features. Forward flexion was painful at 100 degrees. Abduction was painful beyond 70 degrees. Extension was to 30 degrees, adduction to 20 degrees and internal rotation to 80 degrees.
83 Mr Khan noted that as a result of the incident the plaintiff had developed full thickness tear of the supraspinatus tendon with acromial impingement from a spur impinging on the rotator cuff tendon. She developed subacromial bursitis, flare up of degenerative arthritis in the acromioclavicular joint and bicipital tendinopathy. He noted her diagnosis had been “a tear of the rotator cuff tendon, full thickness and biceps tendon of the right shoulder with flare up of acromioclavicular degenerative changes and removal of inferior spur at the acromioclavicular joint with arthroplasty of the acromioclavicular joint”.
84 Mr Khan considered the plaintiff had made an incomplete recovery from surgery and continued to have residual pain with limitation of movements and intermittent referred pain going down her arm and hand but without radiculopathy. He thought her condition had stabilised.
85 Mr Khan considered the plaintiff had been left with residual permanent after effects of her injury and partial incapacity. He thought the plaintiff was likely to be precluded and restricted in relation to her employment involving fine and manipulative use of the right shoulder, manual dexterity, repetitive pushing and pulling, and overhead activities.
86 Mr Khan considered that as a result of her right shoulder problem, the plaintiff was unfit to perform her pre injury duties full time and her incapacity was permanent. He considered she was likely to be precluded and restricted in her social, domestic and recreational activities and likely to continue to suffer from pain, distress and anxiety.
87 Mr Khan thought the long term prognosis was not favourable as the injury was causing pain and suffering in relation to the plaintiff’s right shoulder condition, affecting every day activities, including her work and domestic, social and recreational activities, and a capacity to enjoy her leisure hours.
88 Mr Khan thought that presently the plaintiff did not require any further surgery. However, she required continued medical treatment and regular follow up by a general practitioner and physiotherapy as required. He thought she should continue with a home based exercise program and continue medication to manage her pain.
89 Mr Khan thought the possibility of future surgery could not be completely ruled out as the plaintiff had increased chances of developing secondary degenerative arthritis in her shoulder, which could result in further disruption of the rotator cuff tendon which may require arthroplasty at a later date.
90 Mr Stephen Doig, orthopaedic surgeon, examined the plaintiff in March 2013.
91 On examination of the right shoulder there was significant crepitus in the subacromial space. The plaintiff had flexion to 130 degrees, extension to 40 degrees, abduction to 90 degrees, adduction to 40 degrees, external rotation to 90 degrees and internal rotation to 60 degrees. She had Grade 4 power of the supraspinatus tendon. No investigations were available.
92 Mr Doig diagnosed a soft tissue injury to the right shoulder and noted the plaintiff may well have had a traumatic subacromial bursitis. He thought her current ongoing restrictions of disability and pain were completely related to the incident. He considered the impairment of range of movement and the weakness of the supraspinatus was permanent and stabilised. He thought the plaintiff needed to continue doing her own exercises and required no other specific treatment.
93 Mr Doig considered the plaintiff was restricted to a moderate extent, except for overhead activities, where he thought she was restricted to a marked extent and it was likely that incapacity would continue into the foreseeable future. He noted she had the capacity to perform her pre injury duties and was in fact back at work full time in full duties. The plaintiff had to be a little careful when using a computer for a long period. She said she was somewhat restricted in her social and domestic activities and could not garden or restore furniture as easily. She could not lift or carry objects as easily, such as suitcases, and she found that her arm dragged at the end of a day’s work. The plaintiff complained that housework was much more difficult.
94 Mr Doig thought the prognosis was moderate. He did not consider the plaintiff was at an increased risk of developing arthritis. He thought it was certainly possible her shoulder would deteriorate in the distant future, although he would not expect that to happen in the immediate future. He then did not think the plaintiff required further surgery or other medical treatment.
95 Mr Doig concluded that certainly if the plaintiff continued to have ongoing problems or if her shoulder deteriorated, and it was more likely that this would happen, then she may require further surgery in the future but there was certainly nothing like that presently required.
Investigations
96 Mr Broughton organised an MRI scan of the plaintiff’s right shoulder on 30 June 2008.
97 It was reported there was a full thickness rim rent tear of the anterior supraspinatus tendon. There was generalised tendinopathy of the supraspinatus and infraspinatus tendons with marked fraying of the bursal surface of those tendons consistent with extensive partial thickness tear. There was a lot of fluid in the subdeltoid/ subacromial bursa, and there was likely impingement from the spur arising from the inferior surface of the AC joint.
98 An x-ray and ultrasound of the right shoulder was organised by Mr Broughton in March 2010.
99 The x-ray demonstrated a bone anchor in the humeral head. The findings on ultrasound were consistent with the relatively thin longitudinal scar/healed tear in the supraspinatus tendon with the remainder of the tendon being intact.
100 Mr Broughton organised an MRI scan of the right shoulder in August 2010.
101 It was reported there was a recurrent full thickness tear in the central peripheral aspect of the supraspinatus tendon adjacent to the staple. Subacromial and bony spur was noted. It was reported almost certainly this would impinge on the tendon in full abduction, as on the coronal study, the spur was certainly in line with the tendon defect.
The Defendant’s Medical Evidence
102 Bianca McGuiness physiotherapist reported on 12 September 2011. She noted that after the second operation the plaintiff initially pulled up well with few restrictions and an agreement was made for a cessation of services after 4 November.
103 Ms McGuiness noted however that since then, the plaintiff had presented with a significant aggravation of her symptoms and she requested twelve further sessions plus a review after twelve months, to be used at the plaintiff’s discretion after the initial six services elapsed.
104 Ms McGuiness advised the plaintiff was at high risk of having a recurrence of her shoulder symptoms as she had had two repairs in the short window and, as such, she thought that was warranted. Alternatively, Ms McGuiness was requesting an independent review with a specialist musculoskeletal physiotherapist or orthopaedic surgeon to be carried out if that plan was deemed unsuitable.
105 Ms McGuiness reported on 25 September 2012 that she had last seen the plaintiff at the end of 2011, after two acute aggravations following domestic duties. Both occasions settled quite quickly on treatment. However, due to easy point of irritability and the nature of the plaintiff’s issues, Ms McGuiness suggested it would be worthwhile requesting limited treatments, between six to twelve, to be used at the plaintiff’s discretion for a year to attempt to manage her aggravations.
106 Ms McGuiness then thought any positive long term changes that hands on physiotherapy could make were limited. However, she expected a shoulder with two surgical procedures for similar injuries would gradually deteriorate in time and pose a greater risk of further rupture in the future. Due to the largely sedentary nature of the plaintiff’s work, provided she was set up ergonomically, she thought the plaintiff would be able to carry out pre injury duties without further risk. She would not be able to do work requiring more than five kilograms and/or lifting or using the right shoulder repetitively or undertaking a role where she needed to restrain a client.
107 Ms McGuiness felt she was not qualified to comment on the pain and suffering, distress or anxiety experienced by the plaintiff. She noted that since the incident, the plaintiff had altered the way she undertook general domestic duties and was limited in the amount or frequency of duties she could carry out in a small time frame.
108 Kathleen Pettyfor, physiotherapist, reported on 11 May 2011 that she had most recently seen the plaintiff at Chelsea Long Beach Physiotherapy on 6 May 2011.
109 Ms Pettyfor concluded that the plaintiff’s right shoulder injury was now stable and could be managed and maintained with a regular strengthening program.
Surveillance
110 There were a couple of minutes of film taken on 7 and 13 September 2012 during which the plaintiff was shown carrying a large shoulder bag over her left shoulder and a lighter bag over her right. At one stage she opened the car door with her left hand.
111 At 4.38 pm on 14 September 2012, the plaintiff was shown standing outside her office having a smoke. She talked on her mobile phone which she held in her left hand for a couple of minutes. The plaintiff then opened the office door with her left hand.
112 Later that day the plaintiff left the office. She went to the supermarket and was shown at 5.12 pm carrying three shopping bags in her left hand and one bag in her right. She then transferred all bags to her right hand briefly and put them in the car and opened the car door with her left hand. Minutes later she was again shown briefly carrying two shopping bags in her right hand and then putting them in her left before putting them in the car.
Overview
113 There is no dispute that the plaintiff suffered a right shoulder injury in the incident on the said date.
114 All medical examiners agree on the diagnosis of a fracture of the right clavicle and full thickness tear of the right supraspinatus tendon. There is no suggestion of any non organic factors in the plaintiff’s presentation.
115 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[7] such admission should ordinarily be regarded as very significant:
“. . . albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[7][2006] VSCA 171
The Plaintiff’s experience of pain
116 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon[8] at paragraph 12:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[8](2010) 31 VR 1
117 I found the plaintiff to be an honest and forthright witness who did not exaggerate the level of her symptoms and restrictions. She was prepared to make concessions against her own interest such as advising her attendances on her general practitioner this year were for medico legal purposes.[9]
[9]T49
118 Whilst there was short surveillance film of some seven minutes taken in September 2012, this did not show the plaintiff exhibiting a level of movement inconsistent with her evidence. Having said, in cross-examination, that whilst she should use her left to avoid right arm pain, she did not use her left at all times.
119 In the very limited film, the plaintiff was not shown undertaking any repetitive, heavy or overhead movements with her right shoulder.
120 Whilst the plaintiff agreed she was not seen to display any restriction or difficulty using her right arm, she explained that she paid for it later and this was not shown on film nor were occasions when she used her left hand as it was only a short film.[10] The plaintiff described having to be careful and trying to be mindful.[11] She did not deny she used both hands but tried to use her left.
[10]T39
[11]T38
121 Further, there is no mention by any medical practitioner of inconsistencies on examination or that the plaintiff in any way exaggerated her symptoms.
122 I accept that since the incident, despite two operative procedures and some injections, the plaintiff continues to suffer aching and a dragging sensation in her right shoulder most of the time. At times, this manifests itself in pins and needles in her hand. If she overdoes things then the pain increases and it actually becomes acute pain. She described it as debilitating and ongoing.[12]
[12]T10
123 Unlike in the recent Court of Appeal case of Aburrow v Network Personnel Pty Ltd and WorkSafe[13] relied upon by counsel for the defendant, the plaintiff in the present case has described constant pain of more than a moderate degree and has to be mindful of what she does on a daily basis for fear of aggravating the constant dull ache and experiencing a more acute pain.[14]
[13][2013] VSCA 46, per Maxwell P and Tate JA at paragraph 14
[14]T42
Treatment
124 The plaintiff continues to require over-the-counter medication which she prefers to take, rather than prescription medication. Panadeine Forte gives her significant constipation and she would rather not have it and try to manage herself.
125 Following the first operation, the plaintiff only attended her general practitioner on a few occasions, attempting to self manage with hand therapy and over the counter medication. She was unsuccessful in these attempts and came to further surgery in 2010 when she was at the end of her tether with pain.
126 Since the second operation the plaintiff again has had very limited treatment with funding for physiotherapy having been ceased some time ago. She still however, prefers to self manage, as physiotherapy only gave her short term benefit.[15] The plaintiff also does exercises at home and uses hot and cold packs regularly.
[15]T36
127 Although the second operation resulted in some improvement and she is better than before the first operation, I accept the plaintiff still experiences significant ongoing problems.[16]
[16]T25
128 I accept that the plaintiff does not have continuing medical treatment for her shoulder because she has been told there is nothing further that can be done.
Consequences
129 The plaintiff’s movement of her right shoulder and arm is limited particularly in relation to overhead activity as all medical practitioners agree.
130 The plaintiff is restricted in her ability to do housework. Her daughter comes over once or twice a week, helping with the bigger housework jobs and doing the vacuuming every ten days or so.[17] If her daughter is not available and the plaintiff does these tasks herself, she suffers aching and significant pain in her shoulder as confirmed by her physiotherapist Ms McGuiness.
[17]T12
131 The plaintiff has lost her independence and she is unhappy about being so dependent on her daughter but she des not really have any choice.[18]
[18]T49
132 The plaintiff is limited in the amount of cooking she can do. She does not entertain family at home and now goes out for dinner as flare ups are unpredictable.[19]
[19]T33
133 The plaintiff’s two hobbies before the incident were gardening and furniture restoration.
134 The plaintiff now has very limited involvement in gardening, having to downsize and change her residence a couple of years ago because of her injury. Previously, the plaintiff had flowers in both her front and back garden, and now she just has some plants in pots. She used to enjoy gardening for hours at a time, on the weekends, but now does so for half an hour at most when things need to be done, such as weeding and potting. She tries to use her left hand to do those tasks.
135 Prior to suffering injury, the plaintiff derived enjoyment from restoring second hand furniture which she got from her family and friends. She was involved in sanding and preparation of furniture using electric tools and a manual sander. However, since suffering injury she is unable to undertake that hobby because it involves pressure on her right hand and arm, whether doing it manually or with a machine, which causes vibrations. Manouvering tools as light as a screwdriver is a problem.
136 The plaintiff’s inability to garden and restore furniture are upsetting to her, as are other restrictions on her social life.
137 Counsel for the defendant relied upon the decision in Stijepic v One Force Group Australia Pty Ltd & Anor,[20] submitting that if a worker successfully returns to work, in the absence of other relevant evidence, this will tend to weigh against a conclusion that the pain and suffering consequences of the compensable injury are serious.
[20](2009) VSCA 181 at paragraph 47
138 Whilst each case turns on its own facts and this is not a general principle, the fact the plaintiff is working full time is not particularly relevant in the present case as her job as a family worker does not require anything more physical than operating the mouse on a computer.
139 All doctors agree there is a physical basis for the plaintiff’s complaints and they have an ongoing effect on her enjoyment of her daily life.
140 Dr Maragoudakis thought the injury had caused significant compromise to the plaintiff’s ability to perform housework and he noted she could no longer restore furniture or do gardening. He considered the plaintiff would be unable to do more physical work requiring lifting or repetitive use of her right upper limb.
141 Mr Broughton concluded that it was unlikely the plaintiff would be able to perform normal activities with her right shoulder and he did not think she would be able to undertake heavy repetitive work.
142 Mr Khan thought the plaintiff had been considerably disabled and limited by her pain and restriction of movement. Her shoulder condition affected her enjoyment of life causing considerable pain and suffering.
143 As a consequence of her shoulder injury, Mr Doig thought the plaintiff was restricted in doing a lot of pushing, pulling, lifting or prolonged or repetitive use of the right shoulder or overhead activities.
144 Taking into account all the evidence, I am satisfied that the plaintiff has a serious injury in relation to her right shoulder, the consequences of which satisfy the statutory test of seriousness.
145 As the plaintiff’s condition has persisted for nearly five years, without improvement despite two surgical procedures, I am satisfied that the impairment is permanent, as all doctors have opined.
146 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
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