Harrison v Merriwa Industries Ltd
[2012] VCC 1403
•28 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT WANGARATTA
SERIOUS INJURY DIVISION
DAMAGES & COMPENSATION LIST
Case No. CI-12-00408
| WAYNE CHARLES HARRISON | Plaintiff |
| v. | |
| MERRIWA INDUSTRIES LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE ANDERSON | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 13 & 14 September 2012 | |
DATE OF JUDGMENT: | 28 September 2012 | |
CASE MAY BE CITED AS: | Harrison v Merriwa Industries Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1403 | |
REASONS FOR JUDGMENT
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Catchwords: Serious injury – Injury to both shoulders – Whether injuries can be considered together – Whether consequences to the plaintiff at least “very considerable” – s.134AB Accident Compensation Act 1986.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Monti with Mr G. Pierorazio | Nevin Lenne & Gross |
| For the Defendant | Mr W. R. Middleton SC with Mr R. Kaye | Wisewould Mahony Lawyers |
HIS HONOUR:
1 Wayne Harrison injured his shoulders working for the defendant stacking cake boards weighing about 15kg each into packs of 10. It was difficult, repetitive and heavy work requiring Mr Harrison “to stretch up and lean forward to try to get the bundle to the required height”. Mr Harrison said that, “In 2008 I first noticed pain in both shoulders”. He had by that stage been performing the task of stacking the boards for over 10 years. Mr Harrison said, “The vast bulk of lifting in that area was given to me because all the other workers in my area were disabled and were employed under a job scheme”.
2 Mr Harrison saw his general practitioner, Dr Andrew Kingston, of the Ovens Medical Group. Dr Kingston arranged for an ultrasound of the left shoulder and in October 2009 a referral to an orthopaedic surgeon, Mr Richard Kjar. Mr Kjar suggested various treatment options including surgery.
3 Mr Harrison continued performing similar work as he had before his injury until he resigned on 30 October 2009. He had returned to work on alternative duties subject to restrictions. Mr Harrison said, however, that upon his return, “My work was not changed and I was left doing the same handling of the cake boards”. Apart from a period of three days when he attempted to work delivering pamphlets Mr Harrison has not worked since his resignation. He is now aged 62.
4 He says that he has “constant pain in both my right and left shoulders. Since I ceased work the level of pain has increased”. Mr Harrison’s chronic pain incapacitates him from performing the activities of daily living. He currently medicates with Panadeine Forte for pain relief and with an anti-depressant.
5 Mr Harrison makes application pursuant to s.134AB of the Compensation Act 1986 for leave to bring a proceeding limited to pain and suffering damages in respect of the impairment to each of his shoulders either taken separately or in combination.
6 The issues for determination in the proceeding are:
a. whether the impairment of body function of the two shoulders can be considered together;
b. whether the pain and suffering consequences of the appropriate impairment satisfies the statutory test for serious injury.
Medical treatment
7 Mr Harrison lodged a workers compensation claim in December 2008 in respect of both shoulders. His work duties did not change although Mr Harrison “reduced the number of boards in a pack from 10 to five”.
8 On 6 January 2009, Dr Kingston noted Mr Harrison telling him “his shoulders were ‘buggered’ from lifting and packing for 10 years”. An ultrasound of the left shoulder “showed a small full thickness tear at his supraspinatus tendon”. Mr Harrison declined the offer of a Cortisone injection and a referral for physiotherapy. Mr Harrison said his general practitioner told him physiotherapy might “irritate” his condition. Dr Kingston prescribed the anti-inflammatory Naproxen with Panadeine Forte for pain relief and (from one month ago) Valium “for sleeping at night”. Mr Harrison said he takes two Panadeine Forte both in the afternoon and at night or takes the four tablets at night. He said he still wakes up sore in the shoulders a couple of times a night.
9 The pain persisted and Dr Kingston referred Mr Harrison to an orthopaedic surgeon, Mr Kjar, whom he saw on 29 October 2009. Mr Kjar noted Mr Harrison’s left shoulder supraspinatus tear and a “much milder” pain in the right shoulder. Mr Harrison also complained of constant arthritic pain in his left hand which prevented him from “gripping any objects firmly”. This matter was unrelated to the workplace injury. Mr Kjar discussed three treatment options with Mr Harrison, “continuing the analgesia, subacromial injection or a surgical solution”. Mr Kjar told him that “the surgery would aim to improve both pain and function, as well as that a subacromial injection would most likely only improve the pain”. Mr Harrison was “to think about” these options. Mr Harrison said he “would not be keen” on surgery as there was “no guarantee with respect to improvement in my shoulders”. Mr Harrison said that he keeps active by walking “three nights a week for about 4½ km on flat ground”.
Resignation from employment
10 Mr Harrison resigned from his employment with the defendant on 29 September 2009. On that day, the operation in which Mr Harrison was working, was transferred from one part of the factory to another. Mr Harrison said that there were two reasons he resigned. One related to difficulties he had had with other employees with authority over him including the chief executive officer and his feeling that he had been moved to “create problems for me”. On 24 September 2009, Mr Harrison had been formally interviewed by his employer and a “warning notice” issued to him.
11 Mr Harrison said that the “biggest reason” he resigned was his injury and the fact that the injury to his shoulders prevented him from doing his duties. He said in cross-examination that, leaving aside the issue of stress, he “would have tried to keep working”. On 31 October 2009, Mr Harrison submitted a workers compensation claim for “stress”. He later withdrew the claim.
12 Dr Kingston’s notes, when Mr Harrison saw him on 7 October 2009, recorded “Says stress – moved to different department (seven days ago) – tried to pack an order and manager pushed the order onto floor and took the pallet from him – says can’t take anymore and has resigned – finishes on 30th – stress of being pushed around – extra orders built up (while shifting over two weeks) – shoulders paying – taking two Valium per for a week”.
13 At the time he ceased work, Dr Kingston had assessed Mr Harrison as fit for alternative duties with the restrictions being “minimal use of left and right shoulder and of hands and only lifting of small weights and not repetitively”. Mr Harrison is still subject to those restrictions.
Medical opinions
14 Dr Kingston continued to see Mr Harrison regularly. In a recent report, Dr Kingston said that, “Over this time he has continually complained of pain in both shoulders and both hands/wrists. His symptoms have been daily but there have been exacerbations with no obvious precipitant although he believed the weather had made it worse. He requested a repeat x-ray of his shoulder on 28 June 2011 as they were playing up. These showed degenerative arthritis of his acromioclavicular joint and his glenohumeral joints”.
“Interestingly, in the report of x-ray on 6 January 2009, the only significant abnormality was minor changes in the acromioclavicular joint only. In other words, there was progression between 6 January 2009 and 28 June 2011”.
“Mr Harrison has always been prepared to work but due to his partial and quite significant capacity for his pre-employment duties, and these being restrictive, he has not been able to find alternative employment which, not surprisingly, is quite difficult”.
15 Dr Kingston considered that Mr Harrison’s “injuries do restrict him from social, domestic and recreational activities significantly. It is considered that such incapacity will continue for the foreseeable future”. Dr Kingston’s prognosis was that “Mr Harrison will not improve, his symptoms will get worse mainly due to the natural degeneration with age”.
16 Mr Kenneth Brearley, a consultant orthopaedic surgeon, saw Mr Harrison at the request of his solicitors on 2 December 2011. Mr Brearley noted that, “He has some limitation in movements of shoulders and he has constant pain of variable severity depending on his activity. He says that he is fairly comfortable when resting completely but any repetitive use of the arms or attempted lifting worsens the pain in his shoulders. He cannot do any work above shoulder height. He has difficulty with all lifting”.
17 Upon examination, Mr Brearley found “moderate painful limitation of movement in the left shoulder” and “painful restriction of movements” in the right shoulder. He said that Mr Harrison’s “chronic shoulder injuries have limited him markedly in regard to domestic activities. He is no longer able to assist with the heavier aspects of the housework nor can he do the gardening and lawn mowing. More particularly is his loss of his recreational pursuit of guitar playing and also his hobby of radio controlled model aircraft making. This incapacity will continue for the foreseeable future”.
18 Mr Brearley also considered that Mr Harrison was “not fit for any manual labour because of the condition of the shoulders”. Mr Brearley said that Mr Harrison could perform “the lightest of duties only with restrictions, i.e. the avoidance of all work above shoulder height, lifting beyond 3kg, all repetitive work and pushing and pulling movements”.
19 Mr Stanley Schofield, an orthopaedic surgeon, examined Mr Harrison at the request of his solicitors on 24 July 2012. Mr Schofield noted that Mr Harrison had “evidence of injury to the supporting structures of each joint” in the shoulders and upon examination showed “quite marked reduction in range of movement on each side which is unlikely to improve even though he has ceased work some time ago”. Mr Schofield noted “a significant reduction in his activities” and the shoulder injuries were “likely to restrict him in relation to employment or [other] activities”.
20 Mr Schofield said that the extent of Mr Harrison’s shoulder injuries “is significant as he is unable to abduct or flex either shoulder to a right angle and is therefore unfit for any physical work. It is considered that such incapacity will continue for the foreseeable future”. Mr Schofield suggested a further MRI and referral to an orthopaedic surgeon as “without surgical intervention, [Mr Harrison’s prognosis] is likely to be poor”.
21 Mr Michael Dooley, an orthopaedic surgeon, saw Mr Harrison at the request of the defendant’s insurer’s on 24 January 2012. Mr Dooley seemed to concentrate his attention on the left shoulder. He said Mr Harrison had described “the onset of mainly left shoulder pain during the course of his work”. Mr Dooley thought that, “It is likely that symptoms will continue as current”. As a consequence, “Mr Harrison would not be able to lift weights above 10 to 15 kilos and he would not be able to carry out repetitive activity at and above shoulder level”. Mr Dooley said that “From his description of pain I believe that he is at a stage where it would be reasonable to consider a subacromial local anaesthetic and cortisone injection. This could carry a good chance of at least improving his shoulder pain. I believe that it would be reasonable to consider surgical intervention in the form of arthroscopic subacromial decompression and if appropriate repair of the partial thickness supraspinatus tear. The so called supraspinatus tear is secondary to the degenerative process. Although shoulder surgery can be painful and although recovery can be slow, as outlined by Mr Harrison’s treating orthopaedic surgeon, on balance arthroscopic acromial decompression surgery in this setting offers the patient a predictable improvement in terms of pain and range of motion. It does help with nocturnal pain”.
22 Associate Professor Hart, an emeritus orthopaedic surgeon, examined Mr Harrison at the request of the defendant’s solicitor on 8 August 2012. Upon physical examination, Professor Hart noted “mild wasting”, “tenderness”, his test indicated “impingement” and there was “marked limitation of movement”. Professor Hart said that, “One would normally expect that with relatively minor changes on imaging that once the plaintiff ceased work his symptoms would have improved. That has not been the case but the plaintiff has rejected offers of treatment including injections and surgery and makes no attempt to exercise to improve his movement”.
Plaintiff’s credibility
23 The examining doctors had little criticism of Mr Harrison’s presentation:
a. Mr Brearley described him as “pleasant, sensible, co-operative” and later as “a pleasant straightforward man giving no sense of exaggeration of any of his symptoms of disability”;
b. Mr Schofield said that Mr Harrison “appeared a pleasant and honest witness”;
c. Mr Dooley considered that “the severity of pain he describes and the disability that he describes are somewhat greater than I would expect to see but not unreasonably so”;
d. Professor Hart said that he “did not consider that the plaintiff was demonstrating a marked psychological reaction to his condition, apart from the anger expressed towards his previous employer, but he seems to have given up any hope of his shoulders improving”.
24 My impression during cross-examination was that, when pressed, Mr Harrison’s description of the effect of his injuries on his activities did not entirely measure up to the description in his affidavits. Mr Harrison did, however, readily concede such matters in his evidence without prevarication and my general impression was that he was an honest witness. I note that the video surveillance referred to in the defendant’s court book index was not produced in evidence.
Effect of the injuries on his activities
25 Mr Harrison said “I am restricted in moving my arms. Often the pain will come on unexpectedly with only a small movement. I can turn off a light switch awkwardly and if I move the wrong way the pain in either shoulder can be severe. Because I have pain in both shoulders I have difficulty avoiding episodes of severe pain”. Mr Harrison said that he continues to suffer “from ongoing pain in both my shoulders. The pain has failed to improve. The pain is about equally as bad in both my shoulders. It is present all the time although it is aggravated depending on what I am doing. It is also worsened by the cold weather. I suffer considerable restriction of movement in my arms and have particular difficulty moving my arms overhead. I also have difficulty with heavy lifting in either arm”.
26 Mr Harrison takes “Panadeine Forte to deal with the pain. On average I take about four tablets per day”. Mr Harrison claims that he is restricted in his performance of the activities of daily living in the following respects:
a. apart from three days when he attempted to deliver pamphlets, Mr Harrison said, “I have not looked for work since resigning in October 2009 as I do not think that there is any work out in the open market to which I am suited. I have worked for the defendant since October 1997 in excess of 10 years. I do not have any other skills or training to offer any prospective employer. Had it not been for my injury I would have worked on at least until the age of 65, possibly beyond that. At the moment we have a large mortgage to pay off in the order of $96,000. I would have preferred to work until we had finished paying off the mortgage. Since ceasing work I have been receiving Centrelink benefits”.
Mr Harrison said that he missed the camaraderie of working with his disabled workmates. It was submitted by plaintiff’s leading counsel, Mr Monti, that the matters which prevented Mr Harrison being able to pursue unrestricted work applied equally to his domestic and recreational activities;
b. Mr Harrison is not able to do “things around my house”. He said he had been “a handyman” and “would do maintenance when required”. He had once painted his entire house and planned to do it again. This is now an urgent task and Mr Harrison will have to pay someone else to do it;
c. Mr Harrison and his wife have a large garden. Since she retired it is largely Mrs Harrison’s domain. Mr Harrison used to do “the heavier things such as digging, mowing the lawns, using the whipper snipper, lifting pot plants, pruning and weeding”. If he tries to dig, he aggravates his injury and is in “severe pain over the next few days”. Mowing is now done by his wife and he no longer lifts heavy pots or does the pruning. He tries to avoid weeding;
d. driving now causes Mr Harrison pain and he limits the longer trips. In his affidavit, Mr Harrison said he has difficulty driving a vehicle with manual gears or that does not have power steering. However, in cross-examination he said he “could handle” the gears in his van. Driving to visit his grandchild in Mt Gambier requires regular breaks and is therefore undertaken only once a year. If he were fit, Mr Harrison and his wife would drive over more often;
e. Mr Harrison had been a professional musician for about 15 years before he commenced working with the defendant. For a number of years he travelled Australia playing the electric guitar and singing. He had hoped to get back to his music in retirement. In his affidavit, Mr Harrison said he performed at an “open mike” night for four hours which exacerbated his condition. Every six weeks he performs for about 90 minutes at the St Catherine’s Retirement Centre in Wangaratta. In his later affidavit, this changed to “about one hour every four to five months”. In cross-examination, Mr Harrison said that he had only had three shows at St Catherine’s in the last 12 months each lasting about one hour and 20 minutes. In addition he practices at home for about 30 minutes.
Mr Harrison suggested that the weight of the guitar and the four inch strap over his shoulder was painful and caused problems. His plans to form a “blues band” have been shelved. Mr Harrison said that he had difficulty moving his hand up and down the guitar to play the basic chords at one end and the bar chords at the other. He had previously obtained “enormous pleasure” from his guitar playing;
f. Mr Harrison finds it difficult “to get a good night’s sleep. In addition, when I do wake up in the morning I tend to feel sore in my shoulders because I like to sleep on my side. As a result of me tossing and turning in bed, my wife and I now sleep in different rooms”. Mr Harrison has apparently found he suffers from restless sleep syndrome if he stops taking his medication. He cannot keep his legs still. Mr Harrison’s wife often helps him with personal tasks including dressing, although generally he is able to shower himself;
g. Mr Harrison has, for many years, had an interest in building and flying radio controlled model aircraft. His workbench has been raised to make his building of the planes “more manageable”. He is currently working on a plane to add to his present collection of five. He said it would take about three years to complete. He is the president of the local aircraft club. However, his participation in club working bees is limited to supervision and not to helping with the physical work as he used to;
h. Mr Harrison used to regularly go fishing with his late father. He would not now be able to “resume this activity due to the fact that I would have difficulty in terms of casting the fishing rod”. Mr Harrison’s father died in 2009 and had been sick for some years;
i. Mr Harrison used to help his elderly mother who lives nearby with tasks around her house and garden. He can no longer do “ladder work” including pruning trees;
j. helping his wife with their own domestic tasks is limited including the heavier shopping, vacuuming, sweeping and mopping. These are generally done by his wife;
k. Mr Harrison conceded in cross-examination that he did not previously swim “endless laps” in his mother’s swimming pool and had only been in the pool about four or five times in the year before he was injured. He said he would “jump in to cool off” but not to swim.
Aggregation of impairments
27 Mr Harrison injured both his shoulders in the course of his employment. The injuries became symptomatic in 2008. Although it is not “permissible to aggregate two or more impairments for the purpose of determining if an injury was a ‘serious’ one, injuries may be relevantly aggregated for that purpose” – (Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65 per Chernov JA at [22]). Chernov JA referred to the majority Judgment in Humphries v Poljak [1992] 2 VR 129 at 138 where Crockett and Southwell JJ said: “It is impermissible in an attempt to ascertain if a ‘serious long-term impairment’ has been shown to exist to look to a number of ‘impairments’ not any one of which is a ‘serious long-term impairment’ and treat them as acting in total, as it were, so as to meet the requirements of the definition. A body function must be identified. That done the enquiry to be made is whether that function has been impaired or lost. It may, of course, be impaired or lost by reason of two or more injuries acting together to cause such impairment or loss”.
28 In Lu, the Court of Appeal was concerned with a worker who “in about July or August of 1995…began experiencing pain in the outer side of his right elbow and just above it”. On 4 September 1995, the worker was struck by a mould “on top of the right shoulder in an area close to his neck”. He stopped work on 15 September and submitted a claim form which “refers only to his elbow injury and makes no mention of any injury to his right shoulder or neck”. The worker participated in returns to work for short periods in August 1996 and March 1997. Later, the worker said that in addition to “pain on the outer side of his right elbow radiating up into his upper arm and down into his forearm [he] also has pain in his right shoulder and the right side and centre of his neck”.
29 The Court of Appeal in Lu rejected a submission that even if “each of the elbow injury and the shoulder injury was not by itself a ‘serious injury’ in combination they produced such an injury in that together they caused a serious long-term impairment of a body function, namely, his right arm” (paragraph 10).
30 At paragraph 26, Chernov JA said that: “Where leave is sought in respect of two or more workplace injuries, whether the applicant must establish that each is a ‘serious injury’ or whether they can be looked at together to see if, in combination, they satisfy the requirement of the definition would depend on whether they all affect the one body function and on whether they arise out of the same relevant incident”.
31 At paragraph 27, Chernov JA contrasted this position with the circumstances foreshadowed in Humphries v Poljak that, “Where the injuries impair the one body function and have arisen out of one incident they may be relevantly aggregated for the purpose of determining if the impairment of that body function is serious and long-term”.
32 The circumstances in which injuries may be aggregated has been a vexed issue for County Court Judges in at least a dozen cases. One of those cases involved a finding that “the use of two hands may be regarded as a single body function [as] manual activity is inter-related [each hand depends upon the other hand]”. In that case, a manual worker had injured both arms in the course of his employment.
33 The Court of Appeal refused leave to appeal stating that the finding of serious injury was “not attended with sufficient doubt to warrant the grant of leave” and that, “The argument which has been addressed to the court would not clarify or add to the body of law which has already been established” (Lakic v GB Galvanising Service Pty Ltd per Winneke P and Chernov JA quoted by Her Honour Judge Jenkins in Karovska v Parker Williams Pty Ltd (2008) VCC 1476).
34 In Ciccia v Gasgep Industries Pty Ltd (2006) VCA 182, I determined the application of a worker performing repetitive process work who developed pain in both wrists and hands. He later had carpal tunnel surgery to both wrists. I said at paragraph 20: “The accepted practice, as revealed by a number of decisions in this Court, has been to approach the problem of bilateral injury as affecting the body function of manual dexterity of both upper limbs when used together or of the lower limbs when performing the body function of ambulation. In my view, this is a commonsense approach and accords with the reasoning of the court in Lu. This is particularly so in this case when one has regard to the repetitious nature of the work the plaintiff was performing and the fact that the medical evidence accepts that the bilateral carpal tunnel syndrome and the complex regional pain syndrome type 1 arose from the performance of that work over a relatively short period”.
35 Although that decision perhaps overstated the position adopted by judges of this Court, I consider that it is consistent with the statement of principle by Chernov J in Lu and his restatement of the majority judgment in Humphries v Poljak. It is likely, however, that the issue will rarely have much significance in the final decision reached in an application, such as the present, involving a manual worker who is restricted in the performance of physical activities. In the present case, the medical opinions confirm the limitations Mr Harrison has. Whether each shoulder is looked at separately or in combination, his activities of daily living have been compromised.
Other relevant issues
36 There are four further matters raised by defence counsel, Ms Kaye, which require consideration:
a. would Mr Harrison have continued working if it had not been for the workplace relations issues which caused him stress? The medical reports suggest that notwithstanding his personal desire to continue working, his injuries would have prevented him carrying out the demands of his job and any similar manual employment;
b. Mr Harrison had pre-existing arthritis in his hands particularly his thumbs which to a degree affected his ability to grip. This is not, however, the disabling injury primarily noted by the doctors;
c. Mr Harrison had rejected surgery and other treatment. Mr Kjar offered Mr Harrison three treatment options in October 2009 including a “subacromial injection or a surgical solution”. Dr Kingston, the general practitioner, in a recent report raised the possibility of “surgical repair of his left shoulder” or “physical therapy”. Mr Schofield suggested Mr Harrison have a review by an orthopaedic surgeon following further radiological investigations. Mr Dooley considered that “on balance”, arthroscopic acromial decompression surgery offered “a predictable improvement in terms of pain and range of motion”.
In the medical reports there is only limited comment about the radiological reports. There was a “tear” in the left shoulder supraspinatus tendon shown on the ultrasound in January 2009. The later x-rays in June 2011 seem to show only “degenerative changes”. It is difficult in the circumstances and without further evidence to regard surgery as more than a possible option that might have a chance of improving Mr Harrison’s functioning. Mr Schofield’s suggestion of further radiological examination and reference to an orthopaedic surgeon for review of the treatment options appears to be an appropriate course. It is difficult to speculate as to what the result might be. On the one hand, Mr Harrison’s pain might be reduced and his capacity to use his shoulders and arms increased. Inevitably, if shoulder surgery is pursued, as Mr Dooley said, this could be “painful” and recovery “slow”;
d. ultimately, the application is likely to be determined by a consideration of the consequences to Mr Harrison of the impairment caused by the relevant injury, or injuries if taken together.
Consequences of the impairment
37 Mr Harrison is 62. He injured his shoulders as a consequence of repeated heavy lifting in the course of working for the defendant. Mr Harrison performed that work over many years. He enjoyed the interaction with his fellow workers. He would probably have continued working if disputes with his supervisors had not intervened. The medical evidence suggests that the work he was performing was not appropriate and he would not have continued for much longer. This has been confirmed by his later inability to perform what seems to have been much lighter work delivering pamphlets. The impairment he has also limits his domestic and recreational activities. Mr Harrison’s wife is aged 68 and is now retired; Mr Harrison has an elderly mother living nearby. Mr Harrison’s financial circumstances are constrained. His income is now limited to a disability pension, and they still have a mortgage.
38 Mr Harrison can no longer assist his mother, or his wife at home, with domestic tasks around the house or in the garden which require a significant physical effort that is outside his present capacity. With home maintenance tasks, employing tradespeople is apparently constrained by his finances. His driving capacity is limited. He cannot therefore visit his grandchild interstate as much as his wife would like. Mr Harrison’s nightly sleep continues to be affected.
39 There was some inconsistency in the affidavit material and Mr Harrison’s oral evidence about the restrictions in his recreational activities. It is likely that fishing has not been a serious pursuit for many years and that Mr Harrison was never a “lap” swimmer. He can still pursue his passion for guitar playing and publicly performing and for model plane making and flying. With these activities, however, the nature of Mr Harrison’s impairments do limit the scope and extent of what he would otherwise be able to do.
40 Mr Harrison has relied upon regular ingestion of Panadeine Forte to reduce the pain which results from his injuries and which is exacerbated by activity and seasonal factors. Mr Harrison walks regularly and thought the swinging of his arms whilst walking was important to reduce his symptoms. He did not try physiotherapy as his general practitioner said it might irritate him. He declined the offer of an epidural injection and has not taken up the surgical option. He would probably be advised to revisit the option of surgery after a further radiological examination. Surgery may or may not be successful in reducing his pain and improving his range of movement.
41 Four years have passed since Mr Harrison’s injuries became symptomatic. During that time his capacity for a wide range of physical activities has diminished. He has coped by taking regular pain medication. He faces the prospect of left shoulder surgery. In the circumstances, I consider that the consequences to him of the impairment to the body function of particularly his left shoulder but probably also his right shoulder when taken separately, and both upper limbs together, might fairly be described as “very considerable” and justify a finding of “serious injury”.
42 Accordingly, the plaintiff will have leave to bring a proceeding for pain and suffering damages in respect of the injuries to his left shoulder and/or his right shoulder suffered at the defendant’s workplace and which became symptomatic in about 2008.
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Certificate
I certify that these 13 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 28 September 2012.
Dated: 28 September 2012
Catherine Kusiak
Associate to His Honour Judge Anderson
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