Gargano v Victorian WorkCover Authority

[2014] VCC 1732

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISON

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST  
SERIOUS INJURY DIVISION  

No. CI-12-04118

DAVID SEBASTIAN GARGANO	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2014
DATE OF JUDGMENT:	28 October 2014 (Revised)
CASE MAY BE CITED AS:	Gargano v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2014] VCC 1732

REASONS FOR JUDGMENT

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Catchwords:             ACCIDENT COMPENSATION

Catchwords:             Serious injury – injury to the right dominant shoulder – pain and suffering damages

Legislation Cited:     Accident Compensation Act 1985

Cases Cited:Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100

Judgment:Leave granted to bring proceedings for the recovery of pain and suffering damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B W Collis QC with Mr  C D N Griffin	Verduci Lawyers
For the Defendant	Mr N Y Rattray	Wisewould Mahony

HIS HONOUR:

1       This application is for leave to bring proceedings for the recovery of damages pursuant to the Accident Compensation Act 1985 (‘the Act’). It relies on an injury to the right dominant shoulder. The impairment relied on is to the right shoulder and arm. The paragraph (a) “serious injury” definition is relied on.

2       A compensable injury to the right shoulder is admitted.  Leave is sought only for pain and suffering damages.

3       The plaintiff is aged forty-one years.  After trying university for a year or so on leaving school in the early 1990s, he became qualified as a chef.  He then worked in that field for some fourteen years from 1994 to 2008.  He was injured when he fell at work on 26 September 2008 and injured his right shoulder.

4       After attendances at hospital and on his general practitioner, he was referred to a specialist surgeon, Mr D Li.  Mr Li operated on 10 February 2009.  It was a procedure of limited success only.  Further treatment has been required and indeed has been very active over the last year or so.

5       Mr Gargano had apparently been subjected to violent abuse as a child and has had difficulties coping with this over the years.  Drug and alcohol abuse has been a part of his life for quite a long time.[1]  He still sees a Dr Mau regularly as part of this rehabilitation.  There has obviously been some success in that regard, in that he has held down a responsible job with the ANZ Bank since February 2014 and has also resumed university studies.  I also accept Mr Gargano's evidence that he has not used drugs or alcohol for the last fifteen months. 

[1]Plaintiff’s Court Book (“PCB”) 24

6       He has also suffered a recurring left shoulder condition for decades that has been prone to recurrent dislocations. 

7       As with the drug and alcohol problem, this left shoulder condition has not stopped the plaintiff working in different jobs, nor from playing sports.  A foot injury in more recent times has also occurred and he has suffered some hand symptoms.

8       On all the evidence, I do not find any of these other problems are in the end relevant as they have not impacted to any great extent on his capacity to work or follow his interests in daily life.  For example, he held down about three positions in private industry as a head chef.  One was as an executive chef and one as a senior chef, at clubs, hotels and restaurants around Melbourne.[2]

[2]PCB 14

9       This uncontested evidence indicates that, on the probabilities, any other health and lifestyle problems he had before the subject fall in September 2008 were of no real consequence in terms of his capacity to do what he wanted to do in his daily life.

10      His life changed as a result of that fall and the impairment of his dominant shoulder.  He left professional cooking.

11      I accept he has had constant pain since the fall, though the pain has fluctuated in severity.  I find that pain has increased and his condition seriously worsened in recent times.[3]  In the last year, he has required a number of forms of active treatment. 

[3]Transcript (“T”) 16; T42

12      On the probabilities, I accept he will suffer constant daily pain for the foreseeable future.  For a man aged forty-one years, he can expect, on the Australian Life Tables, to have forty years or more of pain into the future, given his life expectancy.

13      The plaintiff had only just turned thirty-five when he was injured.  His long life expectancy, when I have found he will have to endure ongoing pain indefinitely, is relevant to considering whether that pain is a very considerable consequence.  I find it is.[4] 

[4]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, paragraph [43]; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26, paragraphs [74]-[76]

14      The plaintiff alone gave oral evidence.  I had the opportunity to hear and observe him and it was extremely useful in a case such as this, when pain is the major consequence relied on. 

15      He is a very well motivated man.  As well as not letting a left shoulder that dislocates and a substance abuse problem prevent him from working, he has also not been deterred by losing his chosen vocation as a chef after some fourteen years’ service.  I accept he liked cooking, but now he has trouble doing it.[5] 

[5]PCB 26

16      A permanent injury to the dominant arm for a professional chef is clearly a major incapacity with the multitude of lifting, moving, dexterous tasks, as well as all the other functions involved in commercial food preparation.  He accepted that field of work was now behind him and he looked for and worked in a number of other jobs.  He tried obtaining call centre and sales representative positions.  Through his brother’s contact, he started work in changing water meters.  He could not perform that in the end because he was too slow.[6] 

[6]PCB 16-18; PCB 23

17      He worked in pain, but his drug abuse problems have meant he has needed to avoid the stronger narcotic-based analgesics.  He sought other work of a non-physical nature, in sales and call centres.  He was successful in obtaining a food service representative position in 2012 and 2013.  He then worked for another food industry group as a Business Development Manager but a foot injury in March 2013 put him off work.    

18      Undeterred, he has obtained the ANZ Bank job as a Customer Service Consultant in February 2014 and has also returned to his university studies, studying Arts/Law part-time.  He has achieved these job changes and resumption of his studies in the face of constant right shoulder pain.

19      I found this man a credible witness. 

20      He was shown a brief DVD of his holding up his infant son but the activity only lasted a few seconds.[7]  The DVD did not in any way detract from his evidence.  I accept he just puts up with pain, both at work and in his daily life, by not following some pursuits he would like to and enduring pain in other pursuits that he must follow, as a parent, an employee and just in general life.  If anything, the plaintiff has a rather stoical attitude to his pain.  He is not to be penalised for this.[8] 

[7]Exhibit 1

[8]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, paragraph [47]; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100, paragraphs [80]-[81]

21      I accept the plaintiff's evidence that his pain has worsened over the last year or so.[9]  In particular, it has been worse since early this year.  His treatment is informative and supportive of this finding.  Medication has been changed.[10] 

[9]PCB 28-29(b) and (c); T16; T42

[10]PCB 29 and 29(b)

22      He has undergone further specialist treatment from his treating surgeon, Mr D Li.  Mr Li injected the shoulder with cortisone in September 2013 and advised further surgery might be needed.[11]  The plaintiff has opted not to have further surgery in view of Mr Li not guaranteeing success and in view of the relative failure of Mr Li's first surgical intervention in 2009.  The plaintiff's decision is a reasonable one in all the circumstances. 

[11]PCB 29

23      The plaintiff has also had acupuncture treatment for some months in the last year from his general practitioner, Dr W Ang.  Physiotherapy was also pursued twice a week for some four months until the insurer refused to pay for it in August 2014.  More recently, the use of prescription anti-inflammatories has increased and he is now being prescribed Mobic.[12] 

[12]PCB 29(b)

24      On the evidence, the plaintiff has effectively exhausted conservative treatment and he has reasonably decided against any further surgery.  Accordingly, on the probabilities, he will be left with constant pain that is at times severe, especially if he actively uses the arm.  This situation is with him now for the foreseeable future.  That is a very considerable consequence for this man who had just turned thirty-five years of age when he was injured and is now only forty-one. 

25 I will deal briefly with what the doctors say about his condition and his pain. I note the repeal of s134AE of the Act and the Second Reading Speech and Explanatory Memorandum that accompanied it. There is no need to record the doctors’ opinions in great detail, in view of my acceptance of what this stoical plaintiff said about his pain and his worsening condition.

26      There is some mild debate about the precise diagnosis of what has caused the worsening of his pain but it is not necessary to undergo a precise diagnostic explanation.  Suffice to say it is an organic condition on any view of the evidence.  The defendant did not argue to the contrary.

27      I must judge consequences now, so it is the up-to-date opinions that are most helpful.  Dr Ang, his general practitioner, last reported in July 2014.  His opinion was clear:

“I am of the opinion, given the chronic nature of his injury, that he will continue to have ongoing symptoms and chronic pain associated with this injury.”[13]

[13]PCB 32(a)

28      I accept this doctor has seen the plaintiff more than any other practitioner and knows his patient better than any of the other witnesses.  I accept the general practitioner’s opinion.  He also described very considerable limits on what his patient could do, by way of work, as a parent, around the house, socially and domestically.[14]  I accept that evidence.

[14]PCB 32(a)

29      Mr Li's more recent reports indicate some question as to what the cause of the plaintiff's ongoing pain was four years after the surgery.[15]

[15]PCB 67(a)

30      However, by October 2014, Mr Li considered the pathology causing it was as follows:

“Mr Gargano's current condition is that of ongoing right shoulder pain due to likely superior labral pathology for which right shoulder arthroscopy and likely labral debridement and possibly long head of biceps tenodesis is to be performed.”[16]

[16]PCB 67(b)

31      Further surgery was proposed by Mr Li but even if that took place, Mr Li was only:

“… hopeful that his prognosis with regards to his right shoulder is good.”[17]

[17]PCB 67(b)

32      As indicated, the plaintiff has reasonably decided he is not going to take his chances with surgery a second time.  In that event, his treating surgeon was gloomy indeed when he ended his last report with the statement:

“However if surgery is not performed then he will have ongoing symptoms.”[18]

[18]PCB 67(b)

33      Dr A Stockman, rheumatologist, provided medico-legal reports for the plaintiff after examining him in 2013 and 2014.  He thought pain was due to either secondary degenerative changes in the shoulder and/or a rotator cuff lesion.  In 2013, the prognosis was guarded and the plaintiff: 

“… could well be left with residual pain and disability.”[19]

[19]PCB 70

34      There could also be some neck pathology contributing to the shoulder symptoms, but Dr Stockman does not express this in language that speaks of probability, only of possibility.[20]

[20]PCB 70

35      By September 2014, Dr Stockman thought it was probably degenerative changes in the shoulder and/or capsulitis that was causing the pain.  He also thought there was a possible Complex Regional Pain Syndrome.  Treatment was referred to and the prognosis was uncertain.  Dr Stockman placed considerable limits on this young man’s activities in saying he was fit for a job that avoids movement away from the body, above shoulder level and lifting heavy objects.    

36      For a young man, these restrictions on the dominant arm are very considerable, not only in regard to work but in regard to enjoying daily life, sport, domestic tasks and recreations. 

37      For the insurer, Mr M Shannon, first examined the plaintiff in December 2008.  This was of course before the surgery in February 2009.  Mr Shannon thought then that the plaintiff would be unable to get back to work without surgery due to the significant bankart lesion in the shoulder and its recurrent dislocations with even minor stress.[21]

[21]Defendant’s Court Book (“DCB 2-3

38      When he saw the plaintiff post-surgery it was in April 2010, so that is four-and-a-half years ago.  This opinion is out of date and does not assist much in terms of judging consequences now in October 2014. 

39      Even then, Mr Shannon thought the surgery was successful, but even so, the plaintiff was only capable of modified duties as a chef or in alternative employment.  He put restrictions on heavy lifting, particularly above shoulder level.  The restrictions read as permanent restrictions and the employment options he listed are all essentially clerical and non-physical, for a man then aged in his 30s.[22]

[22]DCB 5-6

40      Mr J McTeigue, general surgeon, examined the plaintiff for the insurer three years ago in November 2011.  This was for the purposes of an AMA percentage impairment assessment of the right shoulder.  Mr McTeigue thought then it was unlikely there would be any marked improvement in the future.[23]  He did not really comment on consequences in any detail.

[23]PCB 75

41      Mr I Jones has seen the plaintiff in 2012, 2013 and 2014 for the insurer.  In the end he thought the plaintiff's condition did not match his complaints of worsening symptoms.  Mr Jones is really on his own in that regard and I do not accept that view, after considering all the experts in this case, especially the treaters who know the plaintiff best of all.   

42      Mr Jones’ opinions are not easily followed.  In 2012, he thought the plaintiff had an unstable shoulder with restricted movement.[24]  He said then there was no functional or psychological reaction and said the shoulder precluded the plaintiff from engaging in any heavy pulling, pushing or use of the right arm and hand above shoulder height.  These are very real limits on activity.  He noted the plaintiff reported symptoms of pain lifting his eighteen-month-old son.[25]

[24]DCB 17

[25]DCB 18

43      He was then sent the short DVD of 7 May 2012 that was shown in Court.[26]  Mr Jones thought the DVD showed a level of function above that reported in the history.  Having viewed the DVD, I find his reasoning is unclear.  On the DVD, the plaintiff lifted the child for no more than a few seconds.  I accept the plaintiff's evidence that this caused pain.  Mr Jones’ conclusion that the plaintiff did it without difficulty is not soundly based, especially when Mr Jones apparently accepted the plaintiff as a witness with no functional features.[27] 

[26]Exhibit 1

[27]DCB 18 and 20

44      In 2013, Mr Jones said the complaints were disproportionate to the pain.  How Mr Jones reached that conclusion is not sufficiently explained.  He still thought there were symptoms and signs of instability with restricted movement.[28]  He went on to say:

[28]DCB 24

“With respect to the plaintiff's right shoulder, any use of his right shoulder, at or above shoulder height would likely aggravate his shoulder condition.  Any heavy pulling or pushing using his right arm has the capacity to cause symptoms of some pain and possibly instability in the shoulder joint.  At bench level he would have a capacity to lift weights of 5 kgs in his right arm.  Repeated pulling and pushing beyond perhaps two or three motions would likely aggravate his shoulder symptoms.”[29] 

This description of Mr Jones’ is of a shoulder on the dominant side with very considerable limitations.

[29]DCB 25

45      In 2014, he repeated his view that the complaints were out of proportion to the pathology that may exist in the shoulder.  This seems rather inconsistent with the other opinions he has expressed.  Again, Mr Jones thought the prognosis was likely to be one of varying degrees of pain and stiffness.  The condition was consistent with having suffered a dislocation of the shoulder.[30]  It was possible, he thought, in regard to the complaint of worsening, that he may have suffered a recurrence of the tear of the superior labrum.[31]

[30]DCB 25D

[31]DCB 25E

46      Mr Jones’ different views are hard to reconcile.  He finds a genuine physical injury, it seems, that has led to very real restrictions for a young man in terms of certain activities.

47      Mr Jones’ conclusions from the DVD are not soundly based when all the evidence is viewed.  In the end, this very short DVD is but a miniscule snapshot of a few minutes over the six years or so since the plaintiff was injured.  It is film that is now two-and-a-half years old.  I accept the condition has worsened in that time.  The active treatment in recent times is consistent with this finding.  I must judge the consequences now in 2014.

48      The other still photographs the defendant tendered are basically incapable of any conclusions, given that they are of such poor quality.[32]  Those still photographs do not impact on credit in this case.

[32]DCB 45-47

49      In addition to pain, I accept the plaintiff’s evidence about the impact of the right dominant shoulder injury on his capacity to play squash.  Even though he had ceased playing at the very high competitive level he used to in his younger days, it is nevertheless a loss that is very considerable for such an accomplished player to now be effectively precluded from the game.  Of itself, for a young active man, this is a very considerable consequence, in my opinion. 

50      I also accept his evidence about the effects of the injury and the resultant lack of intimacy it caused between the plaintiff and his wife.[33]  He and his wife have subsequently separated and it is not necessary to explore the reasons behind that, but the effect on the physical side of the relationship in all the circumstances is a very considerable consequence of itself.

[33]PCB 19

51      For the reasons mentioned, I grant leave to the plaintiff to bring proceedings for pain and suffering damages.

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