Gjorgjioska v K.L. Ballantyne Pty Ltd
[2013] VCC 1581
•16 September 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-10-05542
| FANA GJORGJIOSKA | Plaintiff |
| v | |
| K L BALLANTYNE PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18−21 March 2013 | |
DATE OF JUDGMENT: | 16 September 2013 | |
CASE MAY BE CITED AS: | Gjorgjioska v K.L. Ballantyne Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1581 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: “serious injury” application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 – reliance upon paragraph (a) of the definition of serious injury in s134AB(37) – allegation of injury by way of aggravation to the right shoulder – allegation of injury to left shoulder– issue as to nature and consequences of each injury and whether any impairment is serious with respect to pain and suffering.
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Dressing v Porter & Transport Accident Commission {2006] VSCA 215; Ansett Australia v Taylor [2006] VSCA 171; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Savic v Salmat Targeted Services Pty Ltd [2010] VSCA 303; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100: Petkovski v Galletti [1994] 1 VR 436; Aluthgamage v Select Care Personnel Pty Ltd [2012] VSCA 111; Wright v Toyota Motor Company Ltd [2008] VCC 710; Watts v Rake (1960) 108 CLR 158 at 160
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni SC with Mr J Sala | Tasiopoulos Lambros & Co |
| For the Defendant | Mr B McKenzie | Wisewould Mahoney |
HER HONOUR:
1 The plaintiff, Mrs Fana Gjorgjioska, applies pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to bring proceedings for damages in respect of injuries alleged to arise out of, or in the course of, or due to the nature of her employment with the defendant and, particularly, on 4 June 2008.
2 Although the plaintiff’s application initially relied upon three injuries, namely, to the right shoulder, the left shoulder and the lower back, Mr Morfuni, of senior counsel for the plaintiff, in final submissions, did not persist with the application in respect of the lower back.
3 The plaintiff relies upon paragraph (a) of the definition of “serious injury” in s134AB(37). She claims that the injury to her right shoulder and the injury to her left shoulder have each resulted in an impairment which has pain and suffering consequences which are serious. She does not seek leave to bring proceedings for loss of earning capacity.
Background
4 The plaintiff is aged 66 years, having been born in Macedonia on 3 December 1946. She completed secondary school and then began work as a farmhand. She migrated to Australia in June 1970. She worked as a machine operator at Bradmill Textiles for 10 years. During that time, she married in 1973 and had her first child in 1974 and her second child in 1978. She ceased work with Bradmill Textiles in 1983 and states that she suffered no accidents during her time of employment there.
5 From 1984 to 8 May 1995 the plaintiff was employed as a machine operator at Arvin Tubemakers (“Tubemakers”). She ceased working there because the factory closed down. This was heavy work which required lifting and carrying large steel mufflers. She developed some pain in her right shoulder during this employment.
6 The clinical records of her general practitioner, Dr Brophy,[1] reveal that, as early as February 1982, the plaintiff was complaining of problems in her right shoulder. She was diagnosed with tenosynovitis and rotator cuff syndrome, with a note that she had had injections/tablets in the past. She was injected with Depo Medrol, and in March 1982 was referred to Dr Alex Stockman, rheumatologist, with a note that there was a worker’s compensation claim against Bradmill for right-sided tenosynovitis. On 16 March 1982 it was recorded that the plaintiff had been seen by Dr Stockman for tenosynovitis in the biceps area and had had an injection from him. On 28 February 1983 it was recorded that she had right shoulder tenosynovitis in the lateral aspect of the deltoid and was using her left arm more than her right. An injection was administered to her right shoulder and she was prescribed anti-inflammatories and given two days off. Following this, Dr Brophy’s notes do not appear to have any further record of shoulder complaints until 1991.
[1]Defendant’s Court Book (“DCB”) 93-128
7 Dr Brophy recorded a complaint of pain “over shoulder” (neither left or right specified) in January 1991 and, then, in July and December complaints of pain in the neck with the prescription of anti-inflammatory medication. A specific note of a painful right shoulder was made on 28 October 1993 which was thought to be consistent with a rotator cuff injury. Anti-inflammatory medication was again prescribed. On 1 August 1994 Dr Brophy recorded “painful right shoulder – now left shoulder sore” and he prescribed anti-inflammatory medication and administered a cortisone injection to the right shoulder. It would seem that, around this time, Dr Brophy referred her, again, to Dr Alex Stockman, who gave her a course of injections into the right shoulder.
8 The plaintiff, in her affidavit sworn, on 19 May 2010, (“the plaintiff’s first affidavit”) stated that she took six months off work in 1994. She stated, “It was during my employment with Arvin that I initially commenced developing some minor tingling pain in the right shoulder I also had pain in both my neck and back”. She attributed this to the heavy work there.[2] When she returned to work at Tubemakers she was placed on lighter work.[3]
[2]Paragraph 4 at Plaintiff’s Court Book (“PCB”) 2
[3]Paragraph 5 at PCB 3
9 In June 1995 the plaintiff began work with the defendant. She was employed as a machine operator/process worker which required her to lift boxes weighing between 6 and 10 kilograms and place them onto pallets. At times, she had to carry out the lifting of rolls of paper which weighed up to 16 kilograms. This was placed on a rod at the end of a machine. This occurred two or three times throughout her eight hour shift. In the plaintiff’s first affidavit she stated, “Although I continued to see my general practitioner, in particular for my neck and back, the right shoulder at these early stages gave me no real concern. I continued to work without too much of a problem until about 4 June 2008”.[4]
[4]Paragraph 9 at PCB 4
10 Dr Brophy’s clinical notes record that in July 1996 the plaintiff attended him complaining that her right shoulder was sore for the past two weeks, but she was not doing particularly heavy duties in her new employment.
11 There appears to be a gap of over four years before Dr Brophy has another clinical note concerning the plaintiff’s right shoulder. On 4 October 2000 he recorded that the plaintiff “still has problems of tendonitis in R shoulder – has this long term since her work days – (undecipherable)”. Then on 1 December 2000 he has recorded “discuss her W/C claim. Wants to know dates of various complaints she has had over the years”.[5]
[5]DCB 102
12 There was extensive cross-examination of Dr Brophy concerning his clinical notes. It would seem that from December 2000 he has no further complaint of the plaintiff concerning her right shoulder until 6 August 2008. During the intervening years she had been prescribed Naprosyn on a number of occasions for a sore back, as well as for another condition, psoriatic arthritis.
13 On 22 May 2001 the plaintiff made a claim for compensation for permanent disability against Tubemakers pursuant to s98 of the Act. The body parts affected were stated on the claim form to be “back, neck, shoulders, arms, legs”.[6] In support of this claim, the plaintiff had sworn an affidavit on 22 May 2001 (“the plaintiff’s 2001 affidavit”).[7] In that affidavit the plaintiff stated that the work at Tubemakers as a machine operator required her to hold a pipe with her left hand and then cut it with her right hand. She stated, “The work was very heavy and repetitive. I was constantly bending, lifting and twisting in awkward positions. I used my right arm and shoulder constantly. I was required to use a lot of pressure.” She went on to state, “The work at Ballantyne is not very heavy. It is much lighter in nature than Tubemakers.”[8]
[6]DCB 63
[7]DCB 64-67
[8]Ibid, paragraph 5, DCB 65
14 In the plaintiff’s 2001 affidavit, she mentioned that, whilst at Tubemakers, she had felt symptoms in her neck and lower back. She stated that in that employment she was lifting pipes of different sizes, weighing between 30 and 50 kilograms, every minute. She stated:
“Whilst pushing down on a lever to cut the metal pipes, I began to have attacks of pain in my neck and right shoulder. There was an incident in about 1982, whilst working for another employer, where I also felt pain in my right shoulder. I was treated for that with injections and I had recovered. The pain I experienced in my right shoulder whilst working for Tubemakers in 1993 was extremely severe and so I attended Dr Brophy. This pain spread down my arms to my fingers. The pain became more frequent and severe. I did not want to complain to my employer as I was afraid of losing my job. I continued working and performed my normal duties even though I was in pain.”[9]
[9]Ibid, paragraph 7, DCB 65
15 In the plaintiff’s 2001 affidavit, she stated that, when she felt pain in her neck, shoulders and back she tried to deal with it herself at home by taking Panadol, being massaged or resting after work. She stated that pain in her neck, right shoulder and back continued after she ceased work for Tubemakers and she was still suffering it at the time she swore the affidavit. She noted that her work with Ballantyne “is a lot easier”.[10] She went on to state:
[10]Ibid, paragraph 9, DCB 66
“As a result of my injury I have difficulty carrying out basic chores. I am right-handed and right-footed, however I can only carry light shopping or do some tasks with my right hand. I do about half of the cooking and my daughters assist me with the rest of it. Although I do sweeping and mopping and some vacuuming, my daughters do most of the work and in fact carry out most household chores as I am unable to complete tasks or carry them out with comfort.”[11]
In the plaintiff’s 2001 affidavit, she expressed the view that her right shoulder pain was aggravated by the repetitious use of her right upper limb in her work with Tubemakers and that the pain extends to her right upper chest, neck and back. She also stated:
“I cannot sleep without feeling pain. I feel stiff in the morning and wake constantly during the night. I am often very sad and upset and feel very frustrated.”[12]
[11]Ibid, paragraph 11, DCB 66
[12]Ibid, paragraph 13, DCB 67
16 The plaintiff’s claim for permanent impairment against Tubemakers was successful, and she received a sum of about $33,000 for the injury to her back, neck and right arm.[13]
[13]Paragraph 6 of the plaintiff’s first affidavit, PCB 3
17 Under cross-examination about matters in the plaintiff’s 2001 affidavit, she stated that the work at Ballantyne had been initially easier because she had been left on one machine. However, in 2002 and 2003 they changed her duties, which became much heavier.[14] She stated that her problems with her right shoulder, back and neck had continued beyond 2001, 2002 and 2003. However, they started getting better about 2004 (as did her sleep problems) and she was able to continue working right through until 2008.[15]
[14]Transcript “T” 67-68
[15]T 72-73
18 In her first affidavit the plaintiff stated that, on 4 June 2008, she was working on a machine which sealed and stamped boxes. There were two lines of boxes approaching it on a conveyor belt, however, the machine was not working properly and boxes were unable to be pushed through it. The boxes continued to arrive on the conveyor belt and, apparently, piled up and some of them fell off the conveyor onto the floor. She started to pick up the boxes from the floor and, as she did so, suddenly felt a “cracking noise in (her) right shoulder. (She) felt immediate pain and a cold sweat”. She saw the supervisor and reported what had occurred. It was close to the end of the shift and she did no further lifting that day. On 5 June 2008 she performed light duties only. She ultimately went to see her general practitioner on 9 June 2008.[16]
[16]Paragraphs 10-13 of the plaintiff’s first affidavit, PCB 4-5
19 On 10 June 2008 Dr Brophy’s clinical note reads as follows:
“Has low back pain past week. Still on Naprosyn and taking Panadol but not helping. When bending at machine boxes got stuck and she fell over when moving them. Tender over the upper lumbar spine.”[17]
This note is somewhat confusing because subsequent notes refer to her sore right shoulder and the fact that she has a torn supraspinatus and required a depot injection to the subacromial area. Also, when the plaintiff’s right shoulder symptoms persisted, he referred her to Dr Alex Stockman. His letter of referral, dated 1 September 2008, states:
“Thank you for seeing Mrs Gjorgjioska who requests a referral re her painful R shoulder induced by lifting 15 kg boxes from the floor onto a processing line. This occurred on 4th June. She has been on modified duties since. Her u/s shows a torn supraspinatus. She has requested a referral and is not keen on operative intervention. I have given her a cortisone injection to the subacromial area with marginal relief.”[18]
[17]DCB 124
[18]PCB 53
20 The picture is further confused by subsequent reports of Dr Brophy. These state that the plaintiff was first seen on 6 August 2008 with complaints of right shoulder pain, which she had had for approximately eight weeks and felt had been precipitated by “lifting boxes above her head”.[19]
[19]Report dated 10 November 2008, PCB 54, and report dated 10 June 2009, PCB 56. See also Dr Brophy’s clinical note for 6 August 2008 “has finished her physio. Has sore R shoulder/lift pallets overhead at work” DCB 123.
21 It seems that the plaintiff was given a certificate for light duties from June 2008 onwards. She returned to work at reduced hours on 29 September 2008 in accordance with a return-to-work plan dated 22 September 2008.[20] The plan involved initially starting work for four hours per day from 6am to 10.30am with a ten minute break. The duties were to collect data sheets, and undertake photocopying and shredding of documents and to assist with preparing samples and with sample testing. Under cross-examination, the plaintiff stated that she would not describe the tasks she was given as very light duties because she was pushed to weigh samples and put them in large boxes and lift them, and sometimes to use a hose to wash the floor and clean walls. She said she had three supervisors who would complain when she did not complete allocated tasks and would tell her to use her left hand. She claimed that, when workers had toilet breaks, she would be asked to replace them and to push boxes along the conveyor line using her left arm.[21]
[20]DCB 85-86
[21]T 97-99
22 Dr Stockman saw the plaintiff on 17 September 2008 and reported back to Dr Brophy on the same day. He stated, “As you know, she has psoriatic arthritis but since June has been complaining of pain in the right shoulder and the right trapezius muscle since a lifting episode at work. Clinically it is a rotator cuff lesion, she didn’t have this problem when I saw her for psoriatic arthritis in January.” He noted her history of a modest response to two steroid injections into the subacromial bursa and that he repeated the injection on that day before withdrawing fluid which confirms the ultrasound findings of full thickness tear. He certified her as unfit for work until 26 September “as her job seems repetitive even with light duties”. He also referred her for further physiotherapy on the shoulder.[22]
[22]PCB 66
23 The physiotherapist suggested that the plaintiff undergo a hydrodilatation procedure which took place on 15 October 2008.
24 Dr Brophy’s clinical note, on 27 October 2008, stated that the hydrodilatation did not help and that the left shoulder was causing the plaintiff pain also. He noted that she had neck pain radiating to the interscapular region and that she was tender over the mid-trapezius on the left and the right. He issued a WorkCover certificate noting “L shoulder sore now since using it more often”. In his oral evidence Dr Brophy stated that his recollection was that the plaintiff was favouring her right shoulder and probably using the left more often with whatever duties she was doing at the time.[23]
[23]T 165
25 Dr Brophy’s clinical note on 17 November 2008 stated that there was no improvement in the right shoulder, which was very sore with activity and, also, the ultrasound of the left shoulder showed that the left supraspinatus was also torn and that this had been aggravated by her favouring her right arm.[24]
[24]DCB 122
26 In the plaintiff’s first affidavit, she stated that, after the incident on 4 June 2008, she had great difficulty lifting items with her right arm. She remained at work and took medications prescribed by her general practitioner. (This seems to have been one tablet of Naprosyn sustained release per day, according to Dr Brophy’s notes on 24 September 2008.[25]) She claims that by October 2008 “because of (her) constant reliance on (her) left arm and hand, it began to cause (her) some trouble and pain”. She also stated that her back pain had increased and her neck pain was not much better. Accordingly, she ceased work in November 2008 and began receiving WorkCover payments and has not worked since that time.[26] The plaintiff remained on compensation payments until February 2011, at which time she became eligible for a Centerlink pension. On 3 December 2011, she reached the age of 65 years.[27]
[25]DCB 123
[26]Paragraphs 14-16, PCB 5-6.
[27]Paragraph 6 of the plaintiff’s affidavit sworn on 14 December 2011 (“the plaintiff’s second affidavit”), PCB 20
27 The plaintiff claims that she has suffered ongoing pain in her right shoulder which has become extremely severe and that she has great difficulty lifting any items using her right arm, which she is unable to raise above shoulder level or put behind her back. She has difficulty in lifting pots or buckets and the family does most of the shopping. She said that at night the pain is at its worst and becomes unbearable. She has been told that she needs surgery but is fearful of undertaking it.[28]
[28]Paragraph 17-19 of the plaintiff’s first affidavit, PCB 6-7
28 In the plaintiff’s second affidavit she states that her problems with the right shoulder are now complicated by the disability and pain she suffers to the left shoulder. She has difficulty raising either arm above shoulder level and is unable to undertake domestic duties, such as vacuuming or lifting heavy pots, and relies upon assistance from her daughter, Betty, who lives with her. She finds such things as putting on a bra and combing her hair difficult because she cannot raise her hands above her shoulder. She is confined to lightweight shopping and at night has great difficulty sleeping because she cannot lie on either her left side or right side because of severe pain. She says she is much more restricted socially being unable to go out with friends. She further states that she had attempted to keep working as long as possible because she had herself and her daughter to support. Her daughter now works, but she still needs to support herself. With time, her injuries seem to be getting worse. Although she has been advised by many doctors to have surgery, particularly on the right shoulder, she is afraid to undertake surgery on either the left or right side.[29]
[29]Paragraphs 7-8, 10-12, PCB 20-21
29 At the hearing of the application, the plaintiff, Dr Brophy, and the orthopaedic surgeon, Mr Kudelka, gave oral evidence. Each party then tendered into evidence multiple medical reports and some medical records.
The issues
30 The competing contentions of the parties can be summarised as follows:
31 The plaintiff asserts that the episode of 5 June 2008 caused a serious aggravation to her pre-existing vulnerable right shoulder condition rendering that shoulder too painful or damaged to use. This led the plaintiff to rely on her left shoulder and arm, which resulted in the left shoulder, itself, being injured in the course of and arising out of her employment after 4 June 2008. Each shoulder is now seriously impaired and the plaintiff is totally incapacitated, and has been since November 2008.
32 The defendant counters that the plaintiff’s present complaints in respect of her right shoulder are similar, if not identical, to the complaints she was making in the plaintiff’s 2001 affidavit. Thus, it is argued that it is impossible to discern any significant change between the impaired right shoulder condition being attested to by the plaintiff in May 2001 and the condition of that shoulder now, or, at least, the change is insufficient to meet the high test of “serious injury”. Further, or alternatively, it is contended that the right shoulder condition being described in May 2001 and in which there was radiological proof of serious pathology by reason of the ultrasound of 12 December 2000, was of a kind to naturally degenerate or worsen without any contribution from the work duties at the defendant’s premises. The left shoulder condition, also, was a natural degenerative condition not work-related. The defendant also impugns the plaintiff’s credit, alleging that she has told falsehoods in some medical histories and in the original worker’s claim form in respect of the right shoulder injury dated 5 September 2008.[30]
[30]PCB 94
The plaintiff’s credit
33 It is convenient to deal with this issue immediately. My final impression of the plaintiff was that she was an honest, hardworking woman, who gave genuine answers. However, I entirely understand the concern that Mr McKenzie of counsel, who appeared on behalf of the defendant, and his client, had in relation to whether the plaintiff was forthright and frank in her answers to questions on the original claim form of 5 September 2008, and in her histories to some of the doctors. The problem, in my view, was caused by the usual difficulties encountered with manual workers who are focussed on the relevant injury, their lack of familiarity with the process and the paperwork, exacerbated in this instance by a woman who can only give information via an interpreter. It is also my view that much of this problem of credit should have been anticipated and avoided by more careful preparation of the plaintiff’s first affidavit. I note, in particular, that the plaintiff’s 2001 affidavit and the affidavits sworn in this proceeding were all prepared by the same firm of solicitors. However, the plaintiff’s first affidavit did not exhibit or refer to the plaintiff’s 2001 affidavit and was remarkable for its lack of attention to detail. I wonder whether, had more diligence and skill been committed to the initiating application to the Victorian Workcover Authority, the time and resources of both the Authority and this court would have been saved.
34 In any event, cross-examination of the plaintiff, Dr Brophy and Mr Kudelka, clarified the evidence sufficiently for me to be satisfied that I could safely determine all necessary facts.
35 The plaintiff’s claim form of 5 September 2008 contained two obvious falsehoods. Question 29 on that form asked, “Have you had any previous pain/disability in the area of your present injury/condition?” to which the answer given, indicated by a tick in a box, was, “No”. Similarly, Question 31 asked, “Have you ever had a personal injury claim for this or a similar injury/condition?” to which the answer ticked was, “No”.[31]
[31]PCB 95
36 Mr Clive Jones, orthopaedic surgeon, carried out a medico-legal assessment for Allianz Australia, to whom he reported on 4 February 2009 and took a history: “Prior to her injury her employment was full-time, and there were no prior claims.”[32] This sentence, of course, is ambiguous and possibly entirely accurate because the plaintiff had made no claims in her employment with this particular defendant. It is noteworthy that Mr Jones states: “This lady was seen without an interpreter, and a full and complete history was therefore difficult to obtain”.[33] Again, on page 2 of his report under the heading “Opinion”, he states: “Although a full history was not possible …”. [34]
[32]DCB 13
[33]DCB 13
[34]DCB 14
37 Mr Ian Jones, orthopaedic surgeon, carried out a medico-legal assessment for the defendant’s solicitors and reported to them on 20 October 2010 and has a history on page 2: “The patient confirmed that she had not suffered any previous symptoms in her right or left shoulder”.[35] This history is clearly inaccurate.
[35]DCB 51
38 Mr Mangos, general surgeon, carried out a medico-legal assessment for the plaintiff’s solicitors and reported to them on 22 June 2009. He states: “The only past history which this lady gives is that of back injury which I understand occurred at work in 2005 when she hurt her back bending and lifting”.[36] This statement again is equivocal. To understand whether it was accurate or not one would need to listen carefully to the question asked that elicited that answer.
[36]PCB 75
39 Initially, I was concerned about the possibility of the plaintiff not being reliable in her evidence but, on reflection, I have concluded that the plaintiff is a witness upon whom I can rely for the following reasons:
(a)Her demeanour in the witness box was impressive. There was no prevarication. One gained the impression of an honest woman giving forthright answers. Of course, this does not mean she was in fact giving honest answers, but I was bolstered in that belief by her other concessions against interest, namely, that she continued to suffer symptoms of pain and the like in her neck and right arm after 2001, that she continued to have problems sleeping because of those symptoms, that she had assistance from her daughters well before 4 June 2008, that she does not use Panadeine Forte very often but relies on lesser medication, and that she is able to look after her grandchildren if necessary. Her answers and her manner appeared straightforward and frank.
(b)Leaving to one side precision about pre-existing problems, most doctors who examined her found her medical presentation straightforward:
(i)Mr Peter Kudelka in his report, dated 2 December 2011: “ … I was not aware of any abnormal behaviour on examination.”[37]
[37]PCB 91
(ii)Mr Mangos in his report, dated 22 June 2009: “Following examination of Mrs Gjorgjioska, aged 63, I formed the opinion that this lady is suffering from severe injuries located mainly to her shoulders and to her back. Clinical and radiological findings are convincing.”[38]
[38]PCB 77
(iii)Mr Brendan Dooley, in his report dated 24 November 2009, obtained a very complete history which is confirmatory of the plaintiff’s evidence that she answered questions fully when they were asked.[39]
[39]PCB 82
(iv)Mr Clive Jones, in his reports of 6 March 2009 and 24 March 2009, found that surveillance of the plaintiff confirmed her right shoulder injury and stated: “I’m not aware of non work-related factors in this particular instance”[40], and, “There is no doubt that this lady does have a very significant disability”.[41]
[40]DCB 17
[41]DCB 18
(v)Mr Ian Jones, in his report dated 20 October 2010, stated: “I cannot detect any evidence of any functional symptoms or signs in this patient”.[42]
(c)On cross-examination of Dr Brophy it became clear that the plaintiff had not reported to him any right shoulder symptoms between about October 2000 and June/August 2008. It is important to bear this factor in mind, in combination with the fact that, mostly, when giving histories to doctors, the plaintiff was speaking through an interpreter. In these circumstances, it would not be difficult to imagine that the precision or accuracy of answers to questions asked by medico-legal examiners about pre-existing conditions might be compromised. This is because the questioner and the one responding are doing so indirectly through a third person.
(d)The actual circumstances of the injury and the eruption of symptoms on 4 June 2008 have never been challenged. The occurrence is well-documented soon after it happened in a report completed by a manager of the defendant on 21 August 2008.[43]
(e)The description of the accident and the resulting pain and restrictions in the plaintiff’s first affidavit have never been contested. The defendant, in its material filed in response, served an affidavit of Jacqueline Miller, Human Resources Manager, in the employment of the defendant, but served no affidavit of any leading hand or foreman or direct supervisor of the plaintiff. In any event, the affidavit of Ms Miller does not contest the plaintiff’s evidence concerning the occurrence of the injury to her right shoulder or her subsequent reduction to modified duties resulting from that injury.
(f)The plaintiff lodged another claim form seeking compensation pursuant to s98C of the Act on 22 September 2009 and it correctly admits the previous injury in claim.[44]
(g)After receipt of the s98C claim form, with its acknowledgement of prior relevant injury and claim, and reference to the treating general practitioner, Dr Brophy (who had been the plaintiff’s treating doctor for some 30 years), the defendant formally accepted liability for the injuries to both shoulders.[45]
[42]DCB 54
[43]“Incident/illness, near miss, occurrence and/or investigation report” PCB 92-93
[44]PCB 97
[45]PCB 99
40 In any event, whether or not the plaintiff gave frank answers concerning an earlier right shoulder injury has little impact of a case of this kind where we do now have a full understanding of the pre-existing condition. Dr Brophy had treated the plaintiff’s right shoulder from time-to-time since 1982. Moreover, no attack is made on the conclusion reached by Messrs Kudelka, Mangos, Dallalana and Kossmann because of false of incomplete histories. In particular, there is no doubt that, whatever symptoms the plaintiff may have suffered in her right shoulder as a result of her employment with Tubemakers from 1984 to 1995, the plaintiff continued in that employment until she was retrenched and she made no claim for weekly payments of incapacity in that employment. The plaintiff then commenced as a process worker with the defendant in June 1995 and continued working as a process worker until 4 June 2008. In short, although I can understand the initial concern of the defendant about credit, in the end it goes nowhere: Dressing v Porter & Transport Accident Commission.[46]
[46][2006] VSCA 215 at paragraphs 39-41
Causation
41 The defendant urges me to accept the view of Mr Ian Jones that the plaintiff’s present condition to both shoulders is not work-related, and that the incident of 4 June 2008 was only a minor transient aggravation of an inevitable progressive deterioration.[47]
[47]DCB 57, 60
42 Mr Ian Jones states:
“An ultrasound report of the patient’s right shoulder dated 12.12.00 arranged by Mr Hadley described ‘the supraspinatus and infraspinatus tendons have been completely torn off the greater tuberosity. The tendons have retracted and are not visible on ultrasound. The sub-scapularis and long head of biceps tendons are normal.’
From the available information it is clear that Mrs Gjorgjioska had suffered a complete tendon rupture prior to the reported injury of 04.06.08. It is possible that the lifting incident that she described at that time may have transiently aggravated her right shoulder symptoms but I do not believe it has caused the degenerative changes previously described or the complete rotator cuff tendon repair reported in the ultrasound of 12.12.00.
The natural history of a complete rupture of the rotator cuff tendon as was diagnosed on 12.12.00 is a slow deterioration in shoulder function with gradually deteriorating range of movement and increasing pain. The torn tendon virtually never heals in these circumstances and gradually retracts. The long-term result is that the humeral head progressively migrates proximally and commences to articulate with the under surface of the acromion. This is an extremely difficult medical condition to treat as it does not respond well to surgery.
In my opinion the injury as described by Mrs Gjorgjioska on 04.06.08 was only a minor and transiently aggravating factor in the progressive deterioration of her right shoulder condition which was well established on 12.12.00.”[48]
[48]DCB 57 ff
43 The ultrasound was taken only five months prior to the date upon which the plaintiffs 2001 affidavit was sworn. It was in this affidavit that she described a painful right shoulder, however, she did not assert in that affidavit that she was incapacitated for work. On the contrary, she stated: “After ceasing work for Tubemakers I continued having attacks of pain. My work with (the defendant) is a lot easier”.[49] She described the work at Tubemakers as “very heavy and repetitive”.[50] She went on to say, “I was required to bend over and bend pipes of different sizes weighing from about 30 kilograms to 50 kilograms”.[51]
[49]DCB 66
[50]Paragraph 5, DCB 65
[51]Paragraph 7, DCB 65
44 In the plaintiff’s first affidavit filed in support of this application, the plaintiff described her work duties for the defendant as follows:
“In June 2008 I recall that the boxes that fell weighed somewhere between 13 to 15 kilograms. There were a set of scales which had also fallen over after the boxes had knocked the scales over, and even though I had sought assistance from my fellow worker, he did not come to help me and I was required to lift up the scales. These scales weighed in excess of 30 kilograms. These activities and the continuing work thereafter simply made the situation worse …”[52]
[52]Paragraph 20, PCB 8
In her oral evidence, the plaintiff stated that the defendant had changed her duties when the machine she was operating was no longer used:
“… that job – after they stopped the job on the machine that I made initially on my machine, I was put on to that job. Sometimes I would be doing that job for a week and I’d be picking up the boxes off the line and stacking them onto a pallet and the boxes weighed about 12 or 13 kilograms. Once I stacked them one on top of the other some of them would be required to me (sic) to lift them above shoulder height.”[53]
The plaintiff also described scrubbing machines to clean them of butter and cheese[54], cleaning sinks and walls and containers and shelves and the like[55], lifting rolls of paper weighing 15 to 16 kilograms[56], and lifting blocks of butter weighing 25 kilograms.[57]
In short, the plaintiff described vigorous manual factory work, albeit not as heavy as she had performed at Tubemakers. It is difficult to imagine how a worker would be able to carry out such duties if, in fact, she was suffering progressive deterioration of her right shoulder which had been well established on 12 December 2000, as described by Mr Ian Jones. I conclude that it is extremely likely that such duties inevitably would accelerate that degeneration.
[53]T 103-104
[54]T 107
[55]T 120-121
[56]T 105
[57]T 108
45 Dr Brophy gave evidence that he had no reference to right shoulder complaints in his notes between 4 October 2000 and June 2008.[58] This is in stark contrast to severe problems with the shoulder after June 2008.[59]
[58]T 136
[59]T 168-169
46 Dr Brophy did not agree with the views on causation expressed by Mr Ian Jones. The following questions and answers form part of the cross-examination of Dr Brophy:
“Q:Would you agree with … that opinion … ‘The natural history of the complete rupture of the rotator cuff tendon as was diagnosed on 12 December 2000 has just slow deterioration in shoulder function with gradually deteriorating range of movement and increasing pain’ … Would you agree with that?---
A:It would be – certainly I’ve treated many patients with this injury and certainly they can still be working a good time after the hours (sic). There may be a slow deterioration, but I wouldn’t say – I wouldn’t agree with that necessarily that there will be a slow deterioration.
Q:‘And the torn tendon virtually never heals in these circumstances and gradually retracts.’ What would you say to that proposition?---
A:Interestingly, there is no mention of retraction on the ultrasound of 2008 as compared to that in 2000.
Q:Then he says, ‘The long term result is that the humeral head progressively migrates approximately (sic) – and commences to articulate with the under surface of the acromion and it’s an extremely difficult medical condition to treat as it does not respond well to surgery’. What do you say to all of that?---
A:Well, I would say if that was the long term result I agree it would be a very difficult medical condition to treat
…
Q:… What do you say to that opinion, ‘The injury as described on 4 June was only a minor and transiently aggravating factor in the progressive deterioration of her right shoulder condition which was well established on 12 December 2000’?---
A:No, I disagree with it. She was working quite well up until that time and it seemed to put her out of it.
Q:You would agree that in 2000 you thought that she had a restriction in terms of doing repetitive overhead work?---
A:Yes.
Q:That was a permanent state of affairs based on the September (sic) 2000 ultrasound?---
A:I would have thought so, yes.
Q:In relation to the left shoulder … Mr Jones has put the view … ‘It’s developmental with a progressive degeneration within the left shoulder tendons and spontaneous tearing of the tendons while this patient was apparently on light duties for her right shoulder condition … I do not believe the patient’s left shoulder complaint is a result of her employment nor the reliance on the left arm as a consequence of her right shoulder condition’?---
A:Well, I think at the time she was working quite well with her left shoulder, I think she was only using her left arm at the time, and I think this was a sudden deterioration in the shoulder, the left shoulder, so I don’t really agree with his conclusions there.”[60]
[60]T 170-171
47 Later, in response to a question from myself, Dr Brophy repeated that the cause of the left shoulder condition was because the plaintiff had been relying on her left arm because of the right shoulder injury.[61]
[61]T 172
48 It appears strongly arguable that the plaintiff had an impaired right shoulder injury by 2000/2001, but it is also clear that she continued carrying out full manual process work for the next eight years. These circumstances make it nearly certain, in my view, that the deterioration in her shoulder was significantly contributed to by her work duties. It makes it clearer, rather than the reverse, why she was injured and that her duties would be a cause of that injury.
49 Mr Kudelka, in his oral evidence, questioned the logic of Mr Ian Jones, who had asserted that the torn tendons never heal. Mr Ian Jones was relying upon the findings of the ultrasound of 12 December 2000 that “tendons have retracted and are not visible on the ultrasound”. Mr Kudelka said that, if they had retracted, it was not possible for them to “gradually retract”. He said this “doesn’t make cohesive sense”.[62] Mr Kudelka’s view was that radiological reports are “not gospel”[63] and, although they assist with diagnosis, they do not rule it. He stated that correct diagnosis also relies upon clinical signs and symptoms.[64]
[62]T 184
[63]T 177
[64]T 177-183
50 The views of Mr Kudelka make sense to me and sit comfortably with the fact that the plaintiff continued working full-time undertaking vigorous process work until 4 June 2008.
Conclusion
51 I am satisfied that the injuries to the plaintiff’s right and left shoulders are both work-related for the following reasons:
(a)Each has been formally accepted by the defendant as being work-related for many years. Much medical treatment has been paid for. Approval for surgery has been granted. One hundred and thirty weeks of weekly payments (the primary maximum level of weekly payments) have been paid. Both shoulders have been accepted for lump sum compensation under s98C: Ansett Australia v Taylor.[65]
(b)Dr Brophy, Mr Kudelka, Mr Dallalana, Mr Dooley and Mr Kossmann all accept that the plaintiff’s work was a significant contributing factor to both shoulder conditions.
(c)The incident of 4 June 2008 is well documented with a close and convincing temporal connection to the onset of painful symptoms at an incapacitating level.
(d)The defendant does not assert that there has ever been any recovery or improvement since 4 June 2008.
(e)In cross-examination of the plaintiff it was never suggested that her pain and restrictions in either the left or right shoulder had lessened since 4 June 2008 or that she is now fit to return to process work or had ever been fit for such work since she was placed off work by her general practitioner in November 2008.
(f)No attack or criticism was made of Dr Brophy’s decision to certify the plaintiff as totally incapacitated from November 2008.
(g)No suggestion was put to Mr Kudelka that there had ever been any recovery since 2008.
(h)The nature of the injury, the pre-existing condition and likely impairment, the vulnerability of the right shoulder and the nature of tasks of the employment at the defendant’s premises, all make the connection between that work and the injuries diagnosed by all the doctors appear extremely likely, if not obvious.
[65][2006] VSCA 171
52 The original evidence of the plaintiff concerning the eruption of the left shoulder symptoms makes the connection between work and that shoulder condition clear. Following the right shoulder injury, on 4 June 2008, she had been placed on alternative duties on a part-time basis. She was cross-examined about those duties as follows:
“Q:And assisting with sample testing in the QA or the quality assurance lab?---
A:Yes. Assistance means requiring me weighing them, put them into large boxes and lifting them
…
Q:I suggest to you that the work that you did on the return to work plan was very light work?---
A:When I was on light duties?
Q:Yes?---
A:I wouldn’t say it was very light, because they were pushing me to do the work. I was (indistinct) assisting them, and they were – were sometimes pushing me to use a hose to wash the floor, cleaning the walls, lifting the boxes.
Q:Who do you say was doing that?---
A:The supervisor would tell me to do that. In fact, he was very critical saying that, ‘If you use your left hand, not just put your right hand in your pocket, and just do the work that you’re told to do’.
Q:What I suggest to you is that there is a Jacqueline Miller, who’s sworn an affidavit in this case. She is a human resources manager. Do you know Jacqueline Miller?---
A:Yes, I know Jacqueline Miller.
Q:And she knows the work you were doing?---
A:She knows the jobs that I is (sic) supposed to be doing, but she wasn’t there with me all the time, only when we had conference and meeting with the (indistinct).
Q:She says that … you were advised to complete the duties, these return to work duties, at your own pace. Would you agree with that?---
A:How could she make a statement like that when she wasn’t there with me? I had three supervisors that would give me tasks, that if I didn’t complete the job they would say, ‘Why haven’t you completed?’ I would say, ‘I experienced pain’, they would say, ‘Use your left hand, you have to complete the tasks’.
Q:Does Dr Brophy know about this, have you ever told Dr Brophy about this?---
A:Yes, I did, because that’s why I developed the pain in the left shoulder and when I developed the pain in the left shoulder I couldn’t continue anymore, he told me to stop and he sent me for x-rays.
Q:Dr Brophy was happy for you to do the work that I was telling you about, wasn’t he, the light work?---
A:Dr Brophy said that no, I couldn’t do any more work because I’ve got injured shoulders and that’s why I stopped work.
Q:He was happy for you to do the work, like the photocopying and shredding documents and that sort of thing, but you say it was this heavier work that made you stop? Is that right?---
A:That’s correct because he knew about the situation, plus they were telling me to replace them, then they would go to the toilet and to do their part of the job.
Q:What part of what job?---
A:Pushing the boxes along the conveyor line, using my left arm and (indistinct) would tape the boxes with sticky tape and I was required to push the boxes along the conveyor line.
Q:Ms Miller says that at no stage did you report to the company that you’d suffered any injury to your left shoulder?---
A:No, that’s untrue because when I suffered the injury to my left shoulder I reported to my supervisor. Ms Miller was never there.
Q:In relation to your shoulders at the moment, I suggest to you that you said your left shoulder is about the same as the right shoulder when you see Mr Jones in December 2011 and in February 2013? Sorry, this is Ian Jones … on both occasions?---
A:That’s correct because the pain is bad in both.”[66]
[66]T 97-99
53 In re-examination the plaintiff gave the following evidence:
“Q:Now in relation to the duty of collecting – sorry, assisting with preparing samples in the R and D lab, what precisely were the duties that you had to do?---
A:The cheese came in small bags and I was required to put them on the scale, weigh them, then I was required to put those tested bags of cheese into a box and then once I filled up the box I was required to take the box and put it on a trolley.
Q:How much did each box weigh, are you able to say?---
A:It varied because different cheeses, different sizes, but I would say in-between (sic) eight to ten kilograms.
Q:For how long each day did you have to do that particular job?---
A:It would have been about an hour, an hour in there, an hour in cleaning, an hour on the butter, then an hour maybe in the kitchen to clean up something.[67]
[67]T 119
…
Q:What did you have to clean?---
A:Cleaning the sinks, and if there was some inspection I would be required to clean the wall, using a rag and using my left hand, and also using a hose.
Q:Which wall are you referring to?---
A:The wall in the production area.
Q:How long and how often did you have to clean the wall?---
A:It depends on how dirty it was, and quickly it got dirty because we’re dealing with butter and it used to spray all over, so it required to be cleaned.
Q:Was that a daily job?---
A:It can vary between one to two days, depending on inspection, when inspection was carried out.” [68]
[68]T 120
54 The plaintiff described the duties that caused symptoms to her left shoulder and stated that she had complained to her supervisor, a Mr Peter Wine. Her evidence in relation to this in re-examination was as follows:
“Q:Do you recall the first time on which you complained to him about your left shoulder?---
A:It was basically – I can’t tell you the exact date, but after he started putting me apart from the lighter work, all these other duties that I’ve said to you, after that I started complaining to him.
Q:Did he do anything in relation to the work that you were required to do as a consequence of your complaint?---
A:He didn’t do anything, he just kept on telling me, ‘You do your job, do this job, do that job, and you have to do it’.”[69]
[69]T 122-123
55 The plaintiff has had a series of injections to her shoulders and, on three occasions, has undergone hydrodilatation to her right shoulder. She continues to use medication on a daily basis for pain relief. The affidavit of her daughter, Betty Gjorgjioska, sworn on 12 March 2013[70] corroborates the plaintiff’s limitation on activities of daily living.[71] It has not been contested that the plaintiff was incapacitated for her work duties because of her right shoulder condition from June 2008 and that the left shoulder condition rendered her incapacitated for all work and that the condition of neither shoulder has recovered since that time. I am satisfied that the right shoulder condition caused by the events of 4 June 2008 has permanently incapacitated the plaintiff from carrying out the normal work that she had been doing for some 40 years since arriving in Australia. The left shoulder injury rendered her unfit for all work. These consequences meet the “at least very considerable” test required by the legislation: Advanced Wire & Cable Pty Ltd v Abdulle[72], Savic v Salmat Targeted Services Pty Ltd[73], Sutton v Laminex Group Pty Ltd[74], Petkovski v Galletti[75] and Aluthgamage v Select Care Personnel Pty Ltd,[76] It is not necessary for me to address the issue of aggregation of injuries to the shoulders or arms discussed in Wright v Toyota Motor Company Ltd[77], however, I have no doubt that each shoulder injury is more serious because of the impairment of the other: Watts v Rake.[78]
[70]PCB 22D-22F
[71]It is true that in paragraph 11 of the plaintiff’s 2001 affidavit (DCB 66), the plaintiff had stated that, at that time, she could only do light shopping and about half the cooking, and her daughters did most of the household chores. Then, she was working full time. Now, she does not work at all and has pain and restriction in, not only her right, but also her left shoulder. Yet, under cross-examination, the plaintiff stated that Betty now does much more of the housework than she did before (T 76). In her second affidavit, the plaintiff stated “Indeed, without her I would be in severe trouble.” She also mentioned that she now has difficulty with some tasks involved in dressing herself and personal grooming (paragraph 7, PCB 20). It is clear that, since 2008, she also has had to pay someone to perform gardening work (T 76).
[72][2009] VSCA 170
[73][2010] VSCA 303
[74](2011) 31 VR 100
[75][1994] 1 VR 436
[76][2012] VSCA 111
[77][2008] VCC 710
[78](1960) 108 CLR 158 at 160
56 Accordingly, I am satisfied that the plaintiff has succeeded in her application. I order that the plaintiff have leave to bring proceedings for the recovery of damages for pain and suffering in respect of the injury to her right shoulder and in respect of the injury to her left shoulder pursuant to s134AB(16)(b) of the Act.
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