Hart v VWA
[2024] VCC 1395
•17 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-00727
| NAOMI HART | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE SANGER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2024 | |
DATE OF JUDGMENT: | 17 September 2024 | |
CASE MAY BE CITED AS: | Hart v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1395 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left shoulder – paragraph (a) - pain and suffering – reliability of plaintiff
Legislation Cited: Workplace Injury and Rehabilitation Compensation Act 2013 (Vic), s325(2), s335
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260
Judgment: Leave granted to the plaintiff to issue proceedings for the recovery of pain and suffering damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Cvjeticanin | Ryan Carlisle Thomas Lawyers |
| For the Defendant | Ms S. Gold | TG Legal + Technology |
HER HONOUR:
Introduction
1Ms Hart became a registered nurse in 2012. She loved her job and had worked hard to obtain her qualification. She worked for Third Age Australia Pty Ltd (“the employer”) at Bluecross Hansworth, an aged care and nursing home facility, at the time of the injury. At around 4:00am on 27 April 2017, she was called to assist with settling an agitated elderly male resident. As she was trying to calm and redirect him, he grabbed Ms Hart’s arms, particularly her left arm, pulling them towards him and dragging her down the hall. Following this incident, Ms Hart experienced pain and burning in her left shoulder blade, and her mid and upper back.
2Ms Hart makes her application pursuant to s 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for a determination that her pain and suffering consequences to her left shoulder are “at least very considerable” and “more than significant or marked.”[1]
[1]Humphries and Anor v Poljak [1992] 2 VR 129 at 140
3The body part said to be impaired is the left shoulder. Counsel for Ms Hart abandoned reliance on the thoracic spine, cervical spine, right upper back or arm at the hearing.
4I have considered the affidavits, the evidence of Ms Hart at the hearing, the surveillance footage, and the evidence of the experts relied upon at the hearing. While I do not propose to refer to all the evidence in providing my reasons, I shall refer to the evidence to the extent necessary to explain my reasons.
5Counsel for the defendant conceded that Ms Hart suffered an injury to her left shoulder, which arose in compensable circumstances. However, they submitted that Ms Hart sustained a transient strain to the shoulder, leaving the question of the diagnosis of the injury and whether it was permanent in issue.
6The questions to be to be resolved in this case were:
(a)What is the nature of Ms Hart’s injury and impairment, and is the impairment permanent?
(b)Can the consequences from the impairment be fairly described as being “very considerable” or more than significant or marked?
7Counsel for the defendant also submitted that Ms Hart’s reliability needed to be considered in relation to each question.
8For the reasons set out below, I find that Ms Hart is entitled to leave to proceed with a claim for damages for her pain and suffering arising from the injury sustained on 27 April 2017.
Relevant background matters
9Ms Hart was born in May 1980 and is currently 44 years of age. She lives with her fiancé and two children in Beaconsfield Upper.[2]
[2]Exhibit P1, Plaintiff’s Court Book (“PCB”) 9 at paragraph [3]; 27 at paragraph [1]
10After completing Year 12 at school, Ms Hart worked as a masseur.[3] She then became a qualified personal care attendant,[4] working at Villa Maria, Berwick. She then commenced working for the employer in or about 2008.[5]
[3]Exhibit P1, PCB 22 at paragraph [6]
[4]Exhibit P1, PCB 10 at paragraph [5]
[5]Exhibit P1, PCB 7 and PCB 22 at paragraph [6]
11While in this role, Ms Hart completed several further qualifications.[6] She worked for the same employer as an endorsed enrolled nurse, and later as a registered nurse.[7]
[6]Exhibit P1, PCB 10 at paragraph [5] and PCB 23 at paragraph [7]
[7]Ibid
12After the injury, Ms Hart reported the incident to her employer and attended her general practitioner.[8]
[8]Exhibit P1, PCB 12 at paragraph [24] and [26]
13On 4 May 2017, she underwent an ultrasound and x-ray of her left shoulder.
14Ms Hart returned to work on light duties on 5 May 2017.[9]
[9]Exhibit P1, PCB 7 and PCB 12 at paragraph [30]
15She was referred for physiotherapy treatment and began attending Physioworks Health Group on 10 May 2017.[10]
[10]Exhibit P1, page 55 of clinical notes bundle; Exhibit P1, PCB 35
16She trialled a prescription of Meloxicam, which caused heartburn and related stomach symptoms.[11]
[11]Exhibit P1, page 55 of clinical notes bundle
17Ms Hart continued to regularly attend her general practitioner. For her pain, she was prescribed an initial course of Prednisolone,[12] then Celebrex with Nexium to control the side-effects she experienced.
[12]Exhibit P1, pages 55-56 of clinical notes bundle
18On 3 October 2017, she had an MRI of her left shoulder and cervical spine. It showed an acromioclavicular joint capsule oedema and supraspinatus tendon tear fibres oedema with no discrete tear, cervical spine C4/5 right and C5/6/7 left uncovertebral joint hypertrophic degenerative changes with mild narrowing of the neural foramina and possible irritation of the left C6 nerve root, and no thoracic spine abnormality.[13]
[13]Exhibit P1, PCB 13 at paragraph [31]; PCB 77
19Ms Hart was referred Dr Sachin Kullar, a sports physician, and began attending him in late 2017.[14]
[14]Exhibit P1, PCB 13 at paragraph [32]
20On 7 December 2017, Dr Kullar administered two ultrasound-guided cortisone injections to Ms Hart’s left shoulder.[15] These injections provided short-term, partial pain relief.[16]
[15]Exhibit P1, PCB 47
[16]Exhibit P1, PCB 13 at paragraph [33]
21On 27 February 2018, she was examined and certified fit to return to her pre-injury duties, and did so shortly thereafter.[17]
[17]Exhibit P1, PCB 13 at paragraph [35]; Exhibit D1, Defendant’s Court Book (“DCB”) 36
22She continued receiving physiotherapy treatment and taking pain medication as required.[18]
[18]Exhibit P1, PCB 13 at paragraph [37]
23She continued working until her maternity leave in February 2019.[19]
[19]Exhibit P1, PCB 13 at paragraph [38]
24Ms Hart returned to work in on or around 5 February 2020. Her employer agreed that she could start on reduced hours to accommodate her family responsibilities.[20] The pain and difficulties with her shoulder persisted.[21]
[20]T13, L3-4; Exhibit D1, DCB 40
[21]Exhibit P1, PCB 14 at paragraph [41]
25She submitted a request to the employer to remain on reduced hours, which was rejected.[22]
[22]Exhibit P1, PCB 24 at paragraph [9]
26She decided that she required more suitable work and obtained an administrative role with the Kooweerup Regional Health Service while still working for the employer.[23]
[23]Exhibit P1, PCB 14 at paragraph [42] and PCB 24 at paragraph [9]
27Shortly after, Ms Hart resigned with the employer, ceasing her employment on or about 23 October 2020.[24] My findings regarding the reason for her resignation are contained in paragraph 49.
[24]Exhibit P1, PCB 14 at paragraph [42] and PCB 24 at paragraph [9]; Exhibit D1, DCB 12
28She increased her hours with the Kooweerup Regional Health Service and is now working 64 hours a fortnight with them.[25]
[25]Exhibit P1, PCB 14
What is the nature of the injury and impairment, and is the impairment permanent?
29All the medical experts accepted that Ms Hart had sustained an injury to her left shoulder.
30Counsel for the defendant submitted that the compensable injury was a transient strain to the left shoulder, which had since resolved. Relying on Mr Allen’s opinion, they submitted that Ms Hart’s ongoing symptoms were likely attributable to degenerative changes in the neck.[26]
[26] T57, L26-28; Exhibit D1, DCB 8
31I reject that submission.
32Mr Allen’s opinion is at odds with the opinions of the other treating and medico-legal practitioners. Additionally, all other medical practitioners opine that Ms Hart’s ongoing symptoms are explained by the injury she sustained at work and have explained their rationale for that.[27] In contrast, I found that Mr Allen did not adequately explain how Ms Hart’s symptoms went from being caused by the traumatic event to being caused by the degenerative changes to the neck.
[27] Exhibit P1, PCB 37, 48; 59 and 73 (Counsel for Ms Hart noted that Mr Moaveni states it is the right
shoulder, when it should be the left: T6, L18-19)
33For both reasons, I prefer the evidence of the other medical experts in this case to his.
34While the practitioners and medico-legal experts described the injury in different terms, most said that Ms Hart’s symptoms emanated from her left shoulder.[28] Some also identified the cervical,[29] thoracic,[30] or lumbar[31] spine as a cause of Ms Hart’s symptoms, however this was mostly in conjunction with identifying the left shoulder as causing her symptoms.[32]
[28] Exhibit P1, PCB 48-51
[29] Exhibit P1, PCB 37, 40 and 68
[30] Exhibit P1, PCB 49, 51, 59 and 73
[31] Exhibit P1, PCB 73
[32] The only exception was Mr Dodd, a physiotherapist at Exhibit P1, PCB 37
35Both Dr Neales, her treating general practitioner at the time she was being regularly treated for her injury, and Mr Lugg, a medico-legal orthopaedic surgeon, diagnosed Ms Hart as having left-sided subacromial bursitis, with Mr Lugg describing it as chronic. Mr Moaveni diagnosed her as having a soft tissue injury to the left shoulder, including subacromial impingement.[33]
[33] Exhibit P1, PCB 73
36Counsel for the defendant submitted that I should not rely on Mr Moaveni and Mr Lugg’s diagnosis of injury because they were based in part on their range of motion assessments. Counsel submitted that these two assessments were inconsistent with each other, Ms Hart’s evidence, and with the surveillance footage of Ms Hart. It was also submitted that as the opinions of Mr Moaveni and Mr Lugg were founded in part on a history that Ms Hart could not play basketball[34] or was unable to lift with her left hand,[35] the opinions of these practitioners should be disregarded.[36]
[34] Exhibit P1, PCB 57; T51, L23
[35] Exhibit P1, PCB 70; T53, L22
[36] T57, L15-18
37I reject those submissions because:
(a)While both Mr Moaveni and Mr Lugg’s range of motion assessments differ on flexion and adduction, I find that the difference is immaterial. There is a variance of 40 degrees between Mr Lugg and Mr Moaveni in flexion and a variance of 30 degrees in abduction.[37] Ms Hart’s evidence was she could lift her arm to the front and side to shoulder height, that is, about 90 degrees, although some days were better than others.[38] Her evidence is consistent with the examination findings of Mr Lugg.[39] For the reasons set out below, I have found that Ms Hart was a reliable witness. I thus accept her evidence regarding her range of motion restrictions. Taking her evidence and the findings of both Mr Lugg and Mr Moaveni together, I find that Ms Hart is restricted in her range of movement on flexion and abduction to about 90 degrees, with some days being worse than others.
(b)I have made comments and findings in connection with the surveillance footage below. In summary, Ms Hart’s reliability as a witness has not been impugned by the video surveillance. The surveillance was not shown to any of the medical experts, and thus there was no evidence from the medical experts that their diagnosis of Ms Hart would be altered based on her presentation in the surveillance.
(c)There is no evidence that either of the inaccuracies counsel referred me to, those being that she cannot lift with her left hand and can no longer play basketball, were determinative of Mr Moaveni and Mr Lugg’s final opinions regarding diagnosis or permanency of the injury. I find that they were one of many factors they considered when forming their final opinions.
(d)Their opinions on the diagnosis and permanency of the injury were consistent with that of Dr Neales.[40] She was the general practitioner who treated Ms Hart for her shoulder injury. She had long standing knowledge of Ms Hart’s condition. In this context, her opinion assumes particular importance.
[37] Exhibit P1, PCB 58; Exhibit P1, PCB 72
[38] T20, L2-16
[39] Exhibit P1, PCB 58
[40] Exhibit P1, PCB 49
38Having analysed and considered the medical evidence, I prefer the opinion of Mr Lugg on the diagnosis of injury to the other medical experts because of his orthopaedic expertise and the consistency with the diagnosis of Ms Hart’s treating general practitioner, Dr Neales.
39Both Mr Moaveni[41] and Mr Lugg[42] believe that Ms Hart’s symptoms are permanent. This accords with the views of her treating practitioners.[43] I prefer their opinions to the opinion of Mr Allen on the question of whether there is a permanent impairment arising from the injury, for the reasons previously outlined with respect to the diagnosis of injury.
[41] Exhibit P1, PCB 75
[42] Exhibit P1, PCB 60
[43] Exhibit P1, PCB 38; 43; 51; 53-54
40I therefore find that:
(a)the injury which Ms Hart sustained was chronic subacromial bursitis affecting the left shoulder;
(b)this has caused an impairment to her left shoulder; and
(c)the impairment to the left shoulder is permanent.
Can the consequences from the impairment be fairly described as being “very considerable” or “more than significant or marked”?
41Counsel for the defendant submitted that Ms Hart’s evidence regarding the consequences of her injury was unreliable, and therefore the extent to which I could accept the consequences as deposed to was limited. In support of this submission, they relied on surveillance footage of her arriving at and playing basketball,[44] in which they submitted she demonstrated a greater range of motion compared to her evidence and the range of motion assessments of Mr Lugg and Mr Moaveni.[45]
[44] Exhibit D1
[45] Exhibit P1, PCB 58; 71-72
42I reject this submission.
43I found the surveillance footage to be unremarkable. I observed that there were at least four occasions where Ms Hart’s shoulder movement appeared to be greater than 90 degrees, however she did not maintain this position for longer than a few seconds. When she was trying to shoot a goal, she relied on her dominant right arm, rather than her left. I did not find it to be a vigorous game of basketball.
44Ms Hart said that she manages the pain she experiences after playing basketball by taking more medication and avoiding activities using her left arm until the pain settles down. While she scores goals, including three-pointers, she only plays basketball once a week in a low level competition. The team does not train.[46] She finds playing basketball to be beneficial for her mental and social health.
[46] Exhibit P1, PCB 16
45Seen in that context, I find that variations between the range of motion assessments undertaken in a clinical setting compared to her evidence about her restrictions and my observations of her range of motion on the surveillance footage do not impugn her reliability as a witness.
46This finding also accords with my finding that Ms Hart is stoic, which I will come to shortly.
47Overall, I found that Ms Hart gave her evidence in a credible fashion and made concessions where appropriate.[47] I found her to be a straightforward witness. I find that she was not trying to mislead the Court or exaggerate her symptoms or injury. I found her evidence to be reliable.
[47] T12, L18-31; T13, L1-4; T15, L6-27
48Counsel for the defendant submitted that the consequences of Ms Hart’s injury had been bundled up between the left shoulder and the thoracic spine, raising the spectre of disentanglement. I reject that submission because the medical evidence I have relied on in reaching my findings of injury makes it clear that the injury and impairment are to the left shoulder. I particularly rely on the opinions of the general practitioners and Mr Lugg in support of this. I therefore find that the consequences arise from the left shoulder injury.
49Considering that, and based on her evidence, I make the following findings of fact:
(a)Ms Hart has had constant pain in the left shoulder varying in severity from the time of the incident.[48]
[48] Exhibit P1, PCB 15 at paragraph [47]; PCB 70
(b)Ms Hart returned to her pre-injury duties in or about February 2018. She avoided manual handling. Her pain worsened after undertaking more physical tasks. She was sore after work and often irritable as a result.
(c)She returned to work following taking parental leave in 2020, on less hours than she had been working prior to her leave. She struggled with the physical aspects of her job when she returned to work because of her left shoulder injury.[49]
[49] Exhibit P1, PCB 14 at paragraph [41]
(d)She requested that the employer allow her to continue working reduced hours, to allow her to manage both her symptoms and her parenting responsibilities.[50]
(e)When it became clear to Ms Hart that the employer was not going to allow her to continue with those arrangements, she realised she would not be able to remain working for the employer.
(f)She found alternative employment with a former colleague, Ms Hartley, at Kooweerup Regional Health Service as a Home Care Advisor. She worked at both Bluecross Hansworth and Kooweerup Regional Health Service on a reduced basis for a period of time to be sure that she could manage the work at Kooweerup Regional Health Service.
(g)She resigned her employment at Bluecross Hansworth shortly after, ceasing her role in or around October 2023.[51] Her resignation cited family reasons, even though it was because of the pain in her left shoulder and her inability to undertake her pre-injury duties. She chose to only cite ‘family reasons’ because she did not want to cause any trouble and she did not want to burn any bridges.[52] She does not like conflict.[53]
(h)She has continued working for the Kooweerup Regional Health Service, working 64 hours per fortnight.[54]
(i)Her hours at the Kooweerup Regional Health Service are less compatible with her family responsibilities than her hours were with the employer. This is because she was working night shift with the employer and thus had less reliance on day care for her children.
(j)Her work with the Kooweerup Regional Health Service involves undertaking assessments and managing home care packages for elderly people living at home. She carries out client assessments. She does not undertake any hands-on nursing.[55]
(k)She funds her treatment with her physiotherapist, as the WorkCover insurer terminated her entitlement to medical and like expenses. She undertakes exercises at home as directed by her physiotherapist. She attends once a month, or more frequently if required. She did not pursue a referral to a pain management specialist as recommended by Dr Khuller because of financial reasons and time pressures.
(l)Dr Hou, her most recent treating general practitioner, continues to prescribe Celebrex and Nexium for her shoulder injury, with the most recent prescriptions between 20 July 2023 and 22 August 2024.
(m)She continues to take Celebrex a few times a week, despite the stomach problems it causes her, as well as Nexium and Panadol.
[50] T15, L19-29
[51] Exhibit D1, DCB 12; Exhibit P1, PCB 14 at paragraph [42]; 24 at paragraph [9]
[52] Exhibit P1, PCB 24 at paragraph [9]
[53] T16, L1
[54]Exhibit P1, PCB 24 at paragraph [10]; T4, L30-31
[55] Exhibit P1, PCB 14
50In the context of these findings, I find that Ms Hart is a stoic person. Ms Hart has:
(a)worked hard to remain in suitable employment, despite no longer being able to work as a registered nurse and it being less compatible with her family responsibilities.
(b)come to terms with the fact that she will not be able to return to working as a registered nurse, even though she really loved her work and had worked hard to obtain the qualification.
(c)resumed playing basketball once a week, despite the increase in pain that she suffers, because of the mental health and social benefits that she obtains.
(d)managed her symptoms and injury as best as she can. She pays for regular physiotherapy treatment to manage her symptoms and assist with her pain. She undertakes her home exercises. She only attends her general practitioner in relation to her left shoulder for repeat prescriptions of Celebrex and Nexium, rather than to discuss her symptoms. She has not pursued a referral to a pain management specialist because of the expense and time involved.
51I find that Ms Hart is the very definition of a stoic person.
52Turning to consequences, the most significant of these is the loss of her career and vocation as a registered nurse. Ms Hart worked hard to become a registered nurse. She began her professional career as a masseur, before undertaking study to become a personal care attendant and then an endorsed enrolled nurse. She later completed a Bachelor of Nursing, enabling her to work as a registered nurse. She undertook her studies while working full-time and after the birth of her first child.[56] She loved being a registered nurse.[57] While she is glad to have her job at Kooweerup Regional Health Services, it does not feel like nursing to her.[58] She describes it as an administrative job. She has had to accept that she will never be a nurse again.[59]
[56] Exhibit P1, PCB 23 at paragraph [7]; T2, L13-15
[57] Exhibit P1, PCB 23 at paragraph [8]
[58] Exhibit P1, PCB 24 at paragraph [10]
[59] Ibid
53Her evidence was supported by the medical opinions of Mr Lugg,[60] Mr Moaveni,[61] her treating physiotherapist Dr Dodd,[62] and Dr Hou.[63] It is also supported by the uncontradicted evidence of her fiancé, Mr Cunliffe,[64] and her manager, Ms Hartley.[65]
[60] Exhibit P1, PCB 59-60
[61] Exhibit P1, PCB 73-75
[62] Exhibit P1, PCB 35-43
[63] Exhibit P1, PCB 51
[64] Exhibit P1, PCB 27-30
[65] Exhibit P1, PCB 31-34
54I therefore find that because of the injury and impairment to her left shoulder, Ms Hart is no longer able to work as a registered nurse.
55I make the following further findings regarding Ms Hart’s injury and impairment consequences:
(a)She takes regular breaks when doing household tasks or asks her husband for assistance.
(b)She is more heavily reliant on her right shoulder for daily and household activities because of the pain in her left shoulder.
(c)Although she has a driving tolerance of more than an hour, her left shoulder can fatigue and she holds the steering wheel in a lower position.
(d)She can no longer go to the gym or run because of her left shoulder. As a result, she has lost fitness.
(e)Her sleep is affected by her left shoulder. She avoids lying on her left side. She wakes up in the night if she rolls onto her left shoulder during the night.
(f)She is restricted in looking after and playing with her children.
(g)Her relationship with her husband has been impacted due to the pain and interrupted sleep, which causes her to be more irritable and frustrated with her limitations.
56In considering what Ms Hart has lost because of her injury, the Court must also consider what she has retained.[66] Ms Hart is able to continue working in suitable employment, albeit not in her chosen vocation. She retains the ability to play a game of social basketball once a week.[67] She can perform domestic activities, such as gardening, using her dominant arm and taking frequent breaks.[68] She can operate a ride-on mower to maintain her lawns.[69]
[66] Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, [27]
[67]T79, L3-4
[68]T17, L12-15, 24-25
[69]T17, L15-16
57While all the consequences are significant, her constant pain and the loss of her vocation are particularly so. Given the impact of these consequences on Ms Hart, and when judged in comparison to other cases of injuries and impairments, I find that the consequences of Ms Hart’s left shoulder injury and impairment consequences are fairly described as being at least very considerable, and more than significant or marked.
Conclusion
58I find that Ms Hart is entitled to leave to proceed with a claim for damages based on her pain and suffering consequences.
59I ask the parties to draft orders to reflect this finding and will hear from the parties on the question of costs.
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