Foy, Shane v Densal Pty Ltd and VWA
[2009] VCC 1477
•30 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-00444
| SHANE FOY | Plaintiff |
| v | |
| DENSAL PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 October 2009 |
| DATE OF JUDGMENT: | 30 October 2009 |
| CASE MAY BE CITED AS: | Foy, Shane v Densal Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1477 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – application by the plaintiff for leave to bring a proceeding for pain and suffering only – the plaintiff suffered a compensable injury to his left shoulder and a non–compensable injury to his left pectoral region – whether the consequences suffered by the plaintiff were due to the compensable injury and/or the non–compensable injury – whether the consequences to the plaintiff for pain and suffering arising from the compensable injury were at least very considerable – credit – leave refused: section 134AB (37) (a) and (38) (c)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Collis QC with | Kenyons |
| Mr G Pierorazio | ||
| For the Defendants | Mr Peter Scanlon QC with | Lander & Rogers |
| Ms M Britbart | ||
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 9 February 2009 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering.
3 Mr B Collis QC appeared with Mr G Pierorazio of Counsel for the plaintiff, and Mr P Scanlon QC appeared with Ms M Britbart of Counsel for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the dominant left shoulder. The only issue which I have been asked to consider is whether the impairment of the function of the plaintiff's left shoulder is at least very considerable when the relevant comparison is made, as described below in my discussion of the statutory scheme.
5 The following evidence was adduced during the hearing:
• The plaintiff tendered his Court Book ("PCB"), pages 29-31; 34-126; 149- 153; 154-158; 165-173: Exhibit A • The defendants tendered their Court Book ("DCB"), pages 1-16; 43-49 and 118-141: Exhibit 1. 6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(d)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(g)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[3]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background
9 The plaintiff was born on 5 June 1977. He is now thirty-two years of age. He last attended the Yea Secondary College, completing Year 10, after which he commenced an apprenticeship as a sign writer.
10 The plaintiff commenced employment with the first defendant in 2001. He obtained that employment through an agency known as Parkrec.
11 In the relevant period between July 2004 and September 2004, the plaintiff was assigned to work at the Growling Frog Golf Club at Yan Yean. His normal hours of work were from 7.00 am to 3.30 pm from Monday to Friday.
The Plaintiff's Injuries
12 In his affidavit sworn 2 October 2008, the plaintiff described the work he was required to perform as being heavy and of a physical nature involving repetitive lifting, bending and twisting, particularly in relation to raking bunkers, driving various mowers, performing hand mowing, picking up fallen branches, watering, manoeuvring heavy water sodden turf and using a weeding tool called a "choppo".
13 He then described the onset of injury in the following way:
"Between about July 2004 and September 2004 I was working out at the Growling Frog Golf Club Yan Yean. The bunkers were fairly steep and raking the sand up placed considerable pressure on my arms, as a result of which I commenced to experience some discomfort in my left shoulder. I then had some time off on holidays before returning to the Hidden Valley Country and Golf Club. As part of my duties I was required to drive a ride-on Toro Outfront Mower known as a ‘rough cutter’. This was rear wheel steered machine which cut the edge of the freeways down to a lower level. The mower had faulty steering and I found it difficult to turn the mower with the steering locking up. This caused pain in my left shoulder. I had some chiropractic treatment from Mr Ian Robertson and a few days off."[4]
[4] PCB 11-12. The plaintiff incorporated all of the foregoing allegations he made about the work he was required to perform in paragraphs 4, 5 and 6 of the Statement of Claim, at PCB 17-18
14 On 20 October 2004, the plaintiff was driving the rough cutter. As he turned the steering mechanism it jammed, jarring his left arm. He said he experienced immediate pain in his left shoulder and left upper chest area.
15 A register of injuries was completed on 21 October 2004 which recorded the incident with the rough cutter and the resulting injury to the plaintiff’s left shoulder,[5] and an incident notification form was also completed, making a similar report of the incident and the injury.[6]
[5] DCB 120-121
[6] DCB 118-119
The Plaintiff's Medical Treatment
16 The plaintiff first attended Dr Robertson, chiropractor, for treatment. Dr Robertson provided numerous medical reports outlining the treatment he provided the plaintiff for the injury to his left shoulder.[7]
[7] PCB 61-108
17 Dr Robertson's reports do not follow the conventional format of reports from medical and paramedical practitioners. Rather than provide a report which provides details of the first occasion when he treated the plaintiff and the chronological description of that treatment, the reports appear to describe the treatment provided by Dr Robertson at the time when he provided a particular report.
18 The plaintiff also saw Dr MacDonald, general practitioner. He first saw her on 24 November 2004 complaining of left shoulder and neck pain which he described as developing insidiously over a four-month period. She recorded a history taken from the plaintiff that the symptoms he described occurred in the course of his work as a groundsman at the golf course.
19 The plaintiff was referred to have a number of radiological investigations:
[8] PCB 149
[9] PCB 150
[10] PCB 151-153
• Dr Robertson referred the plaintiff to have an x-ray and an ultrasound of his left shoulder which were undertaken on 24 December 2004.[8] • Dr MacDonald referred the plaintiff to have a limited bone scan of his left shoulder which was undertaken on 5 January 2005.[9] • Dr MacDonald referred the plaintiff to have an MRI scan of his left shoulder which was undertaken on 9 June 2005.[10] 20 Dr MacDonald referred the plaintiff to Dr Laska, rheumatologist. He saw the plaintiff on one occasion on 25 August 2005. Dr Laska recorded a history taken from the plaintiff, that as a result of driving a mower for a considerable period of time and constantly, he developed left shoulder pain in October 2004.
21 Dr Laska reviewed the radiological examinations, concluding that there was a presence of mild impingement of the supraspinatus of the left shoulder. He assessed the plaintiff as having a dominant problem which was perhaps a strain of the attachment of the pectoral muscles attaching to the humerus, and in association with a mild rotator cuff syndrome due to irritation of the supraspinatus tendon, and possibly some mild early anterior capsule inflammation.[11]
[11] PCB 109-110.
22 An insurer requested Dr Laska to provide a report. Dr Laska complied. The report is dated 16 October 2005. He provided an earlier report directed to Dr MacDonald dated 25 August 2005. Essentially, the conclusions he described on both occasions are the same, but expressed somewhat differently. In the second report he described his examination of the plaintiff as evidencing clinical features consistent with musculo-ligamentous strain of the shoulder girdle muscles, which he considered were probably the pectoral muscles, in association with rotator cuff tendons with some evidence of subacromial bursitis and a degree of impingement.[12]
[12] PCB 112
23 Dr Laska recommended that the plaintiff undergo conservative treatment by use of anti-inflammatory medication and structured exercise program, and he considered that the use of a steroid injection with local anaesthetic might assist the plaintiff. He saw no place for surgery.
24 In the interval between first seeing Dr Robertson and then Dr MacDonald, the plaintiff was provided treatment by Dr Robertson. He undertook an exercise program and tried medication to control the pain he was experiencing.
25 The plaintiff is not presently undergoing any active medical treatment. He said he is intolerant to most forms of medication. He uses an over-the- counter medication which he described as ‘Herron Blue’.[13]
[13] Transcript 4
26 Mr Collis asked the plaintiff to demonstrate the range of movement which he presently has in his left shoulder. The plaintiff raised his left arm directly out from his body and appeared to me to raise it to about 20 degrees above shoulder level, saying that he could not raise it any higher. He described that limitation as the only limitation he has arising from the injury to his left shoulder.[14]
[14] Transcript 4
The Plaintiff's Oral Evidence
27 Mr Scanlon commenced his cross-examination by asking the plaintiff whether he suffered any pain in his left shoulder undertaking the work raking bunkers between July and September 2004. Curiously, the plaintiff denied that was the case. He said he did not suffer pain in his left shoulder, but in the left side of his chest.
28 He was confronted with his affidavit in which he said that raking bunkers between July 2004 and September 2005 led to him experiencing some discomfort in his left shoulder.[15] He said he could not recall saying that. He reluctantly then admitted that he must have said what is contained in the affidavit, and therefore, he must have suffered pain in his left shoulder.[16] However, the subsequent answers given by the plaintiff were a mixture of conceding that if he said he suffered pain in his left shoulder then that must have occurred, but also saying that it was not the case.
[15] PCB 11-12 - paragraph 6
[16] Transcript 5-9
29 The plaintiff was then asked about the reference in his affidavit to taking holidays. The reference to taking holidays followed immediately after his reference to suffering some discomfort in his left shoulder raking bunkers.
30 The plaintiff conceded that he had no sick leave entitlements as at the time when he suffered some discomfort in his left shoulder. He also conceded that the holidays he took were related to problems with his left shoulder.[17]
[17] Transcript 9-10
31 Mr Scanlon pressed the plaintiff regarding what he said in his affidavit and the concessions he made in his oral evidence that the contents of his affidavit in those respects were not true. The plaintiff's answers were a confusion of admitting that he had not told the truth, but then saying that he thought the time he had off was due to a chest injury and not left shoulder pain.[18]
[18] Transcript 10-14
32 The plaintiff was referred to Dr MacDonald's clinical notes, and in particular, to an entry made on 7 August 2004 which clearly demonstrates that the plaintiff saw Dr MacDonald on that day complaining of problems with his chest which were aggravated by doing gym work . There is a reference to "three years" which I interpret to mean that the plaintiff had experienced the chest pain for three years. There is a reference to the plaintiff having a home gym for six months on which he undertook his own exercise. There is also a reference to the plaintiff being advised to stop doing gym work, receiving a prescription for anti-inflammatory medication, and being advised to use ice, presumably to bring down inflammation in his chest.[19]
[19] DCB 137
33 At first the plaintiff said that he did not really have any treatment for his chest pain,[20] but when he was referred to the entry in Dr MacDonald's clinical notes he conceded that what he said regarding not really having any treatment for his chest injury was wrong.
[20] Transcript 14
34 The plaintiff's answers to subsequent questions on the same theme were also a confusion of admitting that what he said was not true, but later saying he could not recall, and then saying that he misunderstood what he was being asked.[21]
[21] Transcript 14-16
35 The plaintiff was referred to a report of Dr MacDonald dated 9 March 2005 in which she recorded a history, on 24 November 2004, that the plaintiff had developed left shoulder and neck pain insidiously over a four-month period. Mr Scanlon put it to the plaintiff that four months prior to 24 November 2004 was August 2004.
36 The plaintiff's answers were again a confusion of admitting that what was recorded by Dr MacDonald was true, but later saying that he only experienced chest pain for four months before 24 November 2004.[22]
[22] Transcript 19
37 The confusion in the plaintiff’s evidence did not end there. He was cross- examined on a number of matters of critical importance to whether it is his left shoulder injury which is the cause of consequences said to be at least very considerable or a combination of his left shoulder injury and chest injury. Furthermore, whether his inability or limitation to engage in a number of activities are due to the impairment of the function of his left shoulder:
•
The plaintiff conceded that he could work full-time with his present employer. If he were able to obtain full-time work he could earn up to $800 gross per week which would be career-high earnings for him.[23]
•
The plaintiff stopped swimming about eight months before the hearing of this proceeding. He firstly said that it aggravates his chest injury and causes it to swell up and become inflamed. He then said that he also experiences some pain in his left shoulder depending on the type swimming stroke he attempts.[24]
•
The plaintiff said that he continues to do gym work at home two to three times per week.[25] He conceded that he has remained muscular and physically fit. He conceded that if he told Mr Miller, orthopaedic surgeon, that he was not able to resume gym work then that was wrong.[26] He said he could lift dumbbells of up to about 8 kilograms. He said that if he told Mr Miller that he could not lift weights more than 2 kilograms then that was wrong.[27]
•
The plaintiff said that he was physically capable of pushing a lawnmower; raking leaves, and being capable of doing some gardening,[28] yet later he described being unable to do things around the house, and that light gardening, mowing and manual labour were things that had been taken from him which he regarded as a big loss.[29]
•
The plaintiff said that the chest injury had pretty well resolved, yet later he conceded that he is currently receiving treatment for his chest injury and that what he had said earlier was wrong. Again, he later said that he is not really getting treatment for his chest injury.[30]
•
During re-examination he was asked to describe the current state of the chest injury. He gave a remarkable answer that if he overdoes it he will be in pain the next day and will have to put ice on his chest and take anti- inflammatory medication. He added that the chest injury is the reason why he went into the security industry so he could do guardhouse duties which he considered to be very light. He added that Dr Robertson had encouraged him to stay away from the physical side of security work, and in the context of the answers he gave, I took him to mean because of his chest injury.[31]
•
The plaintiff purchased a motorcycle in 2007 which he is able to ride. He said he does not ride it regularly.[32]
[23] Transcript 27-28
[24] Transcript 31
[25] Transcript 31-32
[26] Transcript 34
[27] Transcript 35
[28] Transcript 33-34
[29] Transcript 36-37
[30] Transcript 39-41
[31] Transcript 44
[32] Transcript 23-24. This summary is to be compared with the plaintiff's affidavits sworn 2 October 2008, at PCB 10-16, and 16 September 2009, at PCB 29-31, which in many respects are at serious odds with the plaintiff’s oral evidence in terms of the consequences which flow from the impairment of the function of his left shoulder.
The Medical Evidence
38 It is clear enough from the reports of Dr Robertson and Dr MacDonald that they have both formed the opinion that the plaintiff has an actively symptomatic left shoulder injury.
39 Dr Robertson was of the opinion that the plaintiff had sustained a complex soft tissue injury, and possibly a bony injury, to his left shoulder region. He described the underlying pathology as being tendinitis, bursitis, the possibility of a ganglion and a bony stress injury.
40 Dr Robertson was of the opinion that the plaintiff’s symptoms were likely to continue indefinitely with likely exacerbations. He considered that the plaintiff required continuing conservative treatment and would benefit from undertaking gym work and swimming.[33]
[33] PCB 93-96
41 Dr MacDonald was of a similar opinion. She was of the opinion that the plaintiff had suffered multiple soft tissue injuries affecting his left shoulder. Like Dr Robertson, she was of the opinion that the plaintiff’s symptoms will likely continue indefinitely with likely exacerbations. She also considered that the plaintiff required conservative treatment and would benefit from undertaking gym work and swimming.[34]
[34] PCB 50-54
42 Both Dr Robertson and Dr MacDonald gave consideration to whether the plaintiff would require surgery. Neither considered it was out of the question.
43 The plaintiff was examined by Mr Myers, vascular surgeon, on 18 May 2009. Mr Myers did not make a diagnosis as such. He reviewed the opinions of a number of medical examiners who examined the plaintiff beforehand. He referred to the plaintiff having pain and limitation of movement in his left shoulder. He suggested a referral to orthopaedic surgeon. Despite not making a diagnosis, he was otherwise of the opinion that the plaintiff's injury was permanent and that he would not be able to return to work as a groundsman, but that work as a security guard was within his capabilities.[35]
[35] PCB 116-117
44 The plaintiff was examined by Mr Miller on 27 July 2009. Mr Miller was of the opinion that the plaintiff had suffered a stress reaction in his shoulder involving the bones and soft tissues, resulting in the clinical features suggestive of capsulitis. He did not consider that he was fit for his pre-injury work, but considered his work as a security guard to be appropriate.[36]
[36] PCB 124-125
45 Neither Mr Myers nor Mr Miller were of the opinion that the plaintiff required any surgical intervention, although Mr Myers did suggest a referral to an orthopaedic surgeon for assessment. The fact that Mr Miller is an orthopaedic surgeon and did not consider that surgical intervention was appropriate is just the step which Mr Myers, and indeed Dr MacDonald, contemplated was a precautionary step in assessing the plaintiff's left shoulder injury.
46 Dr Barton, occupational physician, examined the plaintiff on 19 September 2006 and 3 September 2009. On the second occasion Dr Barton examined the plaintiff he found some abnormalities, namely, some generalised tenderness around the front and top of the left shoulder; some reduction in an abduction and flexion due to reported pain and stiffness; a slight reduction in muscle power throughout the whole left arm; and a reduction in slight touch sensation to the whole of the left shoulder girdle and the whole of the left arm.
47 Dr Barton did not obtain the relevant history of how the incident occurred. He based his opinion upon his disbelief that spending one day on a lawnmower would produce such a long history of persisting symptoms. This is clearly not consistent with the work which the plaintiff says he undertook at the time he was injured.
48 However, Dr Barton found no organic pathology to account for the plaintiff’s symptoms. He was impressed by the plaintiff’s muscular physique and was of the opinion that the plaintiff was using both arms for regular physical activity. He also considered that his examination suggested some degree of exaggeration on the part of the plaintiff, namely, the limitation shoulder movements, the non-anatomical sensory changes and generalised weakness throughout the left arm.[37]
[37] DCB 48-49
49 Dr Barton very cynically treated the plaintiff's estimate that five years of chiropractic treatment saw him only obtain a 15 percent improvement. He added that it would suggest that the plaintiff would need another thirty years of chiropractic treatment before he would receive 100 per cent improvement. It is an observation which calls for Dr Barton to be rebuked. It is not the sort of observation which an independent medical examiner should make. It has led me to conclude that Dr Barton's cynicism has coloured the basis of his opinion of the plaintiff.
Serious Injury
50 I find that the plaintiff did suffer an injury to his left shoulder. I find that the injury has caused an impairment of the function of his left shoulder and has resulted in some consequences.
51 However, there are several factors which militate against a finding that the impairment has consequences which are at least very considerable when judged by comparison with other cases.
52 I find that the plaintiff suffered a chest injury for which he required treatment at the hands of Dr MacDonald as far back as August 2004. I find that was caused by the plaintiff's gym work.
53 I find that the plaintiff continues to be troubled by the chest injury, and that is undoubtedly the case because during re-examination he gave what I described as a remarkable answer that if he overdoes it he will be in pain the next day and will have to put ice on his chest and take anti-inflammatory medication.
54 I find that the chest injury is more symptomatic and disabling for the plaintiff than the left shoulder injury. It was a significant enough problem for the plaintiff to be referred to Dr Laska. Dr Laska, despite obtaining a history that the plaintiff had suffered a left shoulder injury, considered that it was the plaintiff's pectoral muscles which was his dominant problem, and that whatever abnormality there was in his left shoulder deserved the description "mild".
55 The real reason why the plaintiff is unable to undertake swimming is because of the consequences he experiences from his chest injury, and I find to a lesser extent from his left shoulder.
56 In addition to the foregoing, it is clear that the plaintiff is able to undertake lawn mowing if he wanted to, raking leaves, doing some gardening work and he can certainly ride a motorcycle. He purchased a motorcycle in 2007 despite having symptoms emerging from both his chest injury and his left shoulder injury. I find that he purchased the motorcycle because he considered there was no real impediment caused by either injury to him being able to ride it capably from a physical point of view.
57 On the basis of the foregoing analysis, I find that the plaintiff's chest injury is the dominant problem that he presently endures and not his left shoulder injury. A significant proportion of the consequences experienced by the plaintiff are due to the chest injury.
58 Even if the chest injury was ignored altogether, and I operated on the assumption that all of the consequences referred to by the plaintiff were caused by the left shoulder injury, then I do not consider that the consequences to him are at the least very considerable.
59 Whether consequences amount to being very considerable or not require the trial judge to measure up what the plaintiff has lost in order to determine whether the consequences have characteristics, by comparison with other cases, which lead the trial judge to making a value judgment that the relevant statutory test has been met or not.
60 The extent of the plaintiff’s claimed limitation of movement is restricted to his inability to raise his right shoulder when held straight out from his body more than about 20 degrees. In other words, he says he has lost the capacity to raise it to 90 degrees.
61 The plaintiff is not having any active medical treatment; he has had some treatment from Dr Robertson recently; he does not require medication frequently; he does not require any orthopaedic treatment, and certainly not surgery.
62 Consistent with the findings I have made that the plaintiff can undertake lawn mowing, raking of leaves, some gardening and can ride a motorcycle in addition to being able to work, and work full-time in suitable employment if it were available, the consequences do not impress me that they are "at the least very considerable".
Conclusion
63 On the basis of the foregoing reasons, findings, and conclusions, I dismiss the plaintiff's Originating Motion.
64 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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