Emmanouel Foumakis v Victorian WorkCover Authority

No judgment structure available for this case.

IN THE MAGISTRATES COURT OF VICTORIA

AT LATROBE VALLEY

WORKCOVER

Case No. W00085710

Emmanouel Foumakis	Plaintiff
v
Victorian Workcover Authority	Defendant

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MAGISTRATE:	S Garnett
WHERE HELD:	La Trobe Valley
DATE OF HEARING:	6 & 7 August 2007
DATE OF DECISION:	9 August 2007
CASE MAY BE CITED AS:	Emmanouel Foumakis v Victorian Workcover Authority
REASONS FOR DECISION

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Catchwords: entitlement to compensation pursuant to S 98C of the Accident Compensation

Act 1985 -

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Carson
For the Defendant	Mr Batten
HIS HONOUR:

1. The central issue to be determined in this matter is the date on which the plaintiff sustained injury to his left shoulder. The determination of this issue impacts on the entitlement of the plaintiff to compensation pursuant to S 98C of the Accident Compensation Act 1985.
2. The plaintiff, Dr Pui and Mr McCristal on behalf of the plaintiff and Mr Butterworth on behalf of the defendant, gave evidence. A number of documents were tendered by consent by both parties.

History

3.  The plaintiff is aged 62 years having been born on 28 March 1945. He has limited English reading and writing skills and gave his evidence with the assistance of an interpreter. The plaintiff was employed by Simon Engineering (Aust) P/L as a crane driver and general labourer from 1994 and in a full time position from 4 May 1995. He described his work duties as involving the operating of a crane, trades assistant, rigger, involved in the unloading trucks and general labouring which involved heavy work.
4.  He gave evidence that on 23 October 2002 he commenced work at 7am and sustained injury between 10.30am-11am whilst putting the crane he was operating into gear and bending it became stuck and he felt back and left shoulder pain. He then described that during the process of getting off the crane his overalls became stuck and he fell down on his knees onto nuts and bolts on the ground.
5.  The plaintiff gave evidence that the incident was witnessed by Michael Butterworth and that he complained to Mr Butterworth of back, leg and shoulder pain but under cross-examination stated that he could not recall what he said to him.
6.   Michael Butterworth gave evidence that he witnessed the fall as he was assisting the plaintiff at the time and had a clear view of him and described the plaintiff’s “fall” as the plaintiff “jumping out” of the crane. He also stated that he did not see the plaintiff’s overalls become caught on any part of the cabin and that the plaintiff only complained of back pain and not left shoulder pain. He agreed with the plaintiff’s evidence that to operate the crane there are two levers on the left side of the driver which are operated to move the crane forward and back and two levers on the right side which move the jib up or down. He also confirmed that the driver has to depress the clutch to operate the gears.
7.  After the incident the plaintiff attended Mark Huang, physiotherapist at the Gippsland Physiotherapy Group. The plaintiff alleges he complained to Mr Huang of pain in his back, leg and left shoulder although the records tendered indicate a history of the plaintiff experiencing low back pain only after changing gears on a crane at work.
8.  On 24 October an Incident Report Form was completed on behalf of the plaintiff and signed by him noting that the injury was caused; “whilst operating mobile crane in workshop, operator depressed clutch and felt pain in left hip and down left leg”.
9.  On 24 October, the plaintiff attended Dr Pui who had been his treating general practitioner since 15 March 1984. He alleged he told Dr Pui of symptoms in his back, leg and left shoulder, although her records of his attendance on that date indicate the following history; “10.30am bent down to change gear of crane and suddenly experienced lumbago and left sciatica and since cannot sleep because of pain”. Dr Pui provided a Workcover certificate that day reciting the cause of injury as; “while bending down to change gear on crane yesterday 23/10/02”, a description of injury as “spinal injury” and a list of the following symptoms; “shooting pain down the whole of left side of arm and left leg and spine” and a diagnosis of; “nerve compression and entrapment”. Dr Pui certified the plaintiff as being unfit for work from 24 October to 25 October and then fit for normal duties on 28 October.
10.The plaintiff did have two days off work and then returned for a few hours over two days but alleged he could not cope because of the pain. He has been off work since 1 November 2002 and received weekly payments and medical expenses until January 2005.
11.Dr Pui gave evidence that she referred the plaintiff for an x-ray on that date and specifically included the cervical spine as she thought the left arm pain may have been as a result of radiation of pain from the plaintiff’s neck. The x-ray demonstrated degenerative changes in those regions. She also referred the plaintiff for a Whole Body Scan performed on 9 December 2002 which indicated a focal abnormality in the posterior aspect of the left 8th rib. A further x-ray performed at her request on 19 December 2002 of the left shoulder reported no bony or soft tissue abnormality and indicated that shoulder injuries are often best demonstrated by ultrasound examination.
12.During this period Dr Pui continued to provide certificates citing; “disc prolapse, sciatica, lumbago, cervical spine injuries as well”.
13.On 6 January 2003 Dr Pui referred the plaintiff for an ultrasound of the left shoulder which concluded a full thickness supraspinatus tear. It was not until 13 January 2003 following the ultrasound that Dr Pui included the left shoulder as a specific injury on the Workcover certificates. She then referred the plaintiff to Mr George Owen, Orthopaedic Surgeon who performed an arthroscopy on the plaintiff’s shoulder in April 2003 and further surgery on 28 January 2004.
14.Dr Pui gave evidence that she was not given a history of a left shoulder injury by the plaintiff or any complaints of left shoulder pain. She also proffered that the failure to diagnose the condition originally might have been due to a misdiagnosis on her part. She conceded during cross examination that a rotator cuff injury is consistent with heavy work over a period of time which causes degeneration in the rotator cuff and it is gradual process deterioration. Whilst indicating the incident on 23 October may have been “the straw that broke the camels back” in relation to the rotator cuff injury, she conceded that it was likely that if the injury occurred on that date, the plaintiff would have known on that date.
15.A medico legal report was tendered on behalf of the plaintiff from Mr Jonathan Rush, Orthopaedic Surgeon, who examined the plaintiff on 27 September 2004. The relevant history given to him by the plaintiff was that on 23 October 2002 the plaintiff was “changing the gears on a crane when he developed low lumbar back pain and pain in the left shoulder”. On the basis of the history provided, Mr Rush diagnosed, in relation to the left shoulder, a “left shoulder injury aggravating some long standing rotator cuff tendonitis aggravated by the fall and perhaps producing a torn supraspinatus tendon, although this may well have predated the subject injury but the injury rendered the lesion previously asymptomatic to become symptomatic”. Further he added; “the patient may well have had long standing rotator cuff tendonitis with or without a torn supraspinatus tendon, it is uncertain but the accident may have caused a tear of the supraspinatus tendon or may have aggravated a pre-existing tear”.

Claim Forms lodged:

16. The plaintiff has lodged a number of claims pursuant to the Act;

-	First Claim Form dated 8 November 2002: this claim form was completed on behalf of the plaintiff and signed by him citing the following injuries; disc prolapse at L5-S1, jarring of the whole spine and indicating the whole spine was affected. The cause was stated to be; while bending down to change gear sudden disc prolapse and jarring of spine. Time: 10.30am. Importantly, for the purposes
of the dispute, no mention was made of the fall from the crane or any injury to the left arm or shoulder. Liability was accepted by the Agent for this claim in accordance with the provisions of the Act.
-	Second Claim Form dated 29 November 2002: this claim form was completed by the plaintiff’s solicitor, Mr McCristal to whom the plaintiff had instructed to act on 11 November 2002 and was signed by the plaintiff. The injury cited was; Left arm, with a
the injury was not reported, it was cited; I didn’t think I had injured myself at work and a notation that; “I had some pain in 2001 and it went away”. The plaintiff denied during cross-examination that he had suffered pain in the left shoulder in 2001.
cause being given as; heavy gears – repetitive work. For an explanation as to why evidence, he mistakenly cited the date of injury being 9 October 2002. It is clear on the evidence of the plaintiff and Mr McCristal, that the plaintiff did not sustain a specific injury to his left shoulder on that date. Notwithstanding the error, liability was also accepted by the Agent in relation to this claim.
-	Third Claim Form dated 7 January 2003: this claim form was also completed by Mr McCristal on behalf of the plaintiff and signed by the plaintiff. In essence, the claim alleged injuries to the neck and left shoulder occurring as a “gradual process” due to heavy repetitive use of an old crane.
-	Fourth Claim Form dated 30 May 2005: this claim was lodged in accordance with S 98C and listed the following injuries for which the plaintiff was claiming impairment benefits; shoulder, neck, back, left leg, anxiety and depression with a cause cited as changing gears on crane.
17.	In relation to the S 98C claim, the plaintiff concedes that the claimed anxiety/depression is a secondary condition and that there is no medical evidence supporting the claimed injury to the neck. The defendant concede that the plaintiff’s left leg condition is assessable for the purposes of S 98C having regards to the decision in Linfox Transport (Aust) P/L & Anor v Toohey (2004) VSCA 233.

18. The plaintiff contends that on the evidence;

a.

an incident occurred on 23 October 2002 causing injury to his back and left shoulder;
b. the incident was witnessed by Mr Butterworth;

c.

the initial medical certificate provided by Dr Pui on 24 October 2002 listed symptoms in the left arm, and;

d.

because of those symptoms, Dr Pui referred the plaintiff for an x-ray including the cervical spine.

19. The defendant contends;

a. there is no corroborating evidence that the plaintiff injured his left shoulder on 23 October 2002;
b. there is no contemporaneous report or record to support the plaintiff’s evidence that he injured his left shoulder on the 23 October 2002;
c. the work performed by the plaintiff on 23 October 2002 is not conducive to a tear of the supraspinatus tendon of the left shoulder;
d. the plaintiff was an evasive and unreliable witness, and
e. the plaintiff has an ulterior motive for alleging the left shoulder was injured on that date namely to aggregate impairment assessments to achieve a higher impairment assessment and therefore entitlement pursuant to S 98C.
20.The defendant accepts that the plaintiff has sustained an injury to his left shoulder but submits that it is a “gradual process” injury and did not occur on 23 October 2002 as alleged by the plaintiff. Accordingly, the defendant contends that having regards to S 104B (5AA) the left shoulder injury must be separately assessed pursuant to S 91 and any impairment cannot be aggregated to the impairments resulting from the plaintiff’s back injury and left leg condition.

ORDERS:
Based on the evidence presented I find on the balance of probabilities that;

1.   The plaintiff did not sustain an injury to his left shoulder on 9 October 2002 as was conceded by the plaintiff during the hearing.
2.   The plaintiff did not sustain a separate and distinct injury to his neck or left leg because of the incident on 23 October 2002 as was conceded by the plaintiff during the hearing.
3.   The plaintiff sustained injury to his left shoulder on 23 October 2002 and I make this finding for the following reasons;

a. I accept the plaintiff’s evidence that when changing the gears of the crane they became stuck causing pain in his left shoulder.
b. The plaintiff complained to Dr Pui the following day of “shooting pain down the whole of left side of arm and left leg and spine”.
c. Dr Pui initially diagnosed that these symptoms were due to radiation of pain from the plaintiff’s neck, which she ultimately believed was a misdiagnosis having regards to the ultrasound findings on 6 January 2003.
d. The Incident Report Form dated 24 October and Claim Form dated 8 November 2002 without reference to a left shoulder injury was completed on the plaintiff’s behalf due to his lack of English skills albeit signed by him to be true and correct.
e. I find that the plaintiff’s lack of specificity in reporting the full extent of his symptoms or ensuring that they were accurately and fully recorded does not, on its own, lead to a conclusion being drawn that he did not suffer from them. There may be a number of explanations including him being more focused on the main symptoms he was suffering at the time, those being his “whole spine” and left leg, or the belief that his left arm symptoms were emanating from his neck as originally thought by Dr Pui. Despite failing to report his left arm symptoms to Mr Butterworth and Mr Huang and failing to ensure the left arm symptoms were recorded on the Incident Report Form and claim form dated 8 November 2002, he did within 24 hours report “shooting pain down the whole of left side of arm” to his treating doctor which she ultimately diagnosed as being as a result of a supraspinatus tear due to the incident occurring on 23 October 2002.
f. Whilst I found the plaintiff to be somewhat evasive during cross-examination and wrong when he stated that he initially reported left shoulder symptoms to both Mr Huang and Dr Pui, I found him to be an honest and credible witness.

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Citations

Emmanouel Foumakis v Victorian WorkCover Authority [2007] VMC 3

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Toohey v Linfox Transport (Aust) Pty Ltd & Anor [2005] HCATrans 310

a.	an incident occurred on 23 October 2002 causing injury to his back and left shoulder;
b.	the incident was witnessed by Mr Butterworth;
c.	the initial medical certificate provided by Dr Pui on 24 October 2002 listed symptoms in the left arm, and;
d.	because of those symptoms, Dr Pui referred the plaintiff for an x-ray including the cervical spine.

a.	there is no corroborating evidence that the plaintiff injured his left shoulder on 23 October 2002;
b.	there is no contemporaneous report or record to support the plaintiff’s evidence that he injured his left shoulder on the 23 October 2002;
c.	the work performed by the plaintiff on 23 October 2002 is not conducive to a tear of the supraspinatus tendon of the left shoulder;
d.	the plaintiff was an evasive and unreliable witness, and
e.	the plaintiff has an ulterior motive for alleging the left shoulder was injured on that date namely to aggregate impairment assessments to achieve a higher impairment assessment and therefore entitlement pursuant to S 98C.

a.	I accept the plaintiff’s evidence that when changing the gears of the crane they became stuck causing pain in his left shoulder.
b.	The plaintiff complained to Dr Pui the following day of “shooting pain down the whole of left side of arm and left leg and spine”.
c.	Dr Pui initially diagnosed that these symptoms were due to radiation of pain from the plaintiff’s neck, which she ultimately believed was a misdiagnosis having regards to the ultrasound findings on 6 January 2003.
d.	The Incident Report Form dated 24 October and Claim Form dated 8 November 2002 without reference to a left shoulder injury was completed on the plaintiff’s behalf due to his lack of English skills albeit signed by him to be true and correct.
e.	I find that the plaintiff’s lack of specificity in reporting the full extent of his symptoms or ensuring that they were accurately and fully recorded does not, on its own, lead to a conclusion being drawn that he did not suffer from them. There may be a number of explanations including him being more focused on the main symptoms he was suffering at the time, those being his “whole spine” and left leg, or the belief that his left arm symptoms were emanating from his neck as originally thought by Dr Pui. Despite failing to report his left arm symptoms to Mr Butterworth and Mr Huang and failing to ensure the left arm symptoms were recorded on the Incident Report Form and claim form dated 8 November 2002, he did within 24 hours report “shooting pain down the whole of left side of arm” to his treating doctor which she ultimately diagnosed as being as a result of a supraspinatus tear due to the incident occurring on 23 October 2002.
f.	Whilst I found the plaintiff to be somewhat evasive during cross-examination and wrong when he stated that he initially reported left shoulder symptoms to both Mr Huang and Dr Pui, I found him to be an honest and credible witness.

[2007] VMC 3

9 August 2007