Hutchinson v Beach Cafe Pty Limited
[2011] VCC 146
•25 January 2011
| IN THE COUNTY COURT OF VICTORIA | (Un) Revised |
(Not) Restricted
AT WARRNAMBOOL
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-02572
| LYNSAY HUTCHINSON | Plaintiff |
| V | |
| BEACH CAFE PTY LIMITED | Defendant |
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| JUDGE: | JUDGE COHEN |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 1- 2, 6-8 December 2010 |
| DATE OF JUDGMENT: | 25 January 2011 |
| CASE MAY BE CITED AS: | Hutchinson v Beach Cafe Pty Limited |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 146 |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application – s.134AB Accident Compensation Act 1985; whether fall at work a cause of injury to shoulder; whether consequences to plaintiff of shoulder injury constitute “serious injury” as to pain and suffering.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Brookes SC with | Brown McComish |
| Mr N Bird | ||
| For the Defendant | Mr P Scanlon QC with | Lander & Rogers |
| Mr P Jens |
1 On 30 March 2002 the plaintiff slipped and fell at work at the Dunes Café, Ocean Grove (“the fall”). She seeks leave to bring proceedings for damages for injury suffered in that fall. To obtain leave she must satisfy the Court that she suffered a serious injury under the definitions and restrictions of s.134AB of the Accident Compensation Act 1985. She relies on part (a) of the definition of “serious injury”, claiming to have suffered permanent serious impairment of the function of her right shoulder. She seeks leave only in respect of pain and suffering damages.
2 There is no dispute that the plaintiff fell in the course of her employment with the defendant as a waitress on 30 March 2002, and suffered injury to her right elbow in the form of lacerations that were sutured and subsequently healed. Her case is that she also suffered injury to her right shoulder, which worsened after several years, for which she eventually underwent injections, surgery twice, and is still due for further physiotherapy and a pain management program.
3 Although the Workcover insurer admitted liability for a shoulder injury[1] in 2007, and liability for treatment for her shoulder has been accepted as recently as October 2010[2], the defendant now disputes that the fall was a material contributing cause of that or any other injury to her right shoulder. Further, it argues that in any event the permanent consequences to the plaintiff of the condition of her shoulder are not of a degree that satisfies the test for serious injury, in that those consequences do not fairly meet the description of being “more than significant or marked” and “at least very considerable” in comparison with other possible impairments of body functions[3].
[1] Exhibit R ( injury described as “aggravation of right rotator cuff dysfunction of the right shoulder”)
[2] Exhibit W
[3] S 134AB (38) (c) and (b)
4 The evidence consisted of the documents set out in the attached schedule, including video surveillance, and oral evidence of the plaintiff, her general practitioner Dr Fung, and her treating orthopaedic surgeon, Mr Barwood, all of whom were required for cross-examination.
Plaintiff’s credibility
5 The credibility and reliability of the evidence of a plaintiff in an application of this nature is usually important and often critical, because not only the court but also the doctors whose opinions are in evidence are heavily dependent on the plaintiff’s account of the extent and timing and duration of symptoms of most injuries.
6 The defendant directly challenged the plaintiff’s credibility in this case.
7 The major attack on her credibility is her failure to disclose in her income tax returns over a number of years, income from hairdressing work performed by her, both before and after the fall. Even though her original claim for leave in respect of loss of earnings had been withdrawn during the opening of her case, she had sworn affidavits as to the extent of her ability to perform hairdressing work before and after injury.
8 On legal advice, she initially refused to answer a question about income on the basis of potential self-incrimination. Pursuant to s.128 of the Evidence Act 2008 I ruled that a certificate under that section would be granted[4]. She then answered that her reason for not disclosing that income was to avoid paying income tax on it, and she answered extensive further questioning to the same effect. My impression was that in all but one respect[5] she was frank and not evasive in these answers, although I recognise that by the time she gave them she knew she would have the protection of a certificate under s.128.
[4] It has been – dated 9 December 2010
[5] I do not believe her that the failure to disclose income might have been due to a belief that she did not need to disclose it if it fell under a taxable amount, because she did in fact lodge tax returns for most of the relevant years whether or not other income exceeded the taxable threshold.
9 This Court does not condone deliberate non-disclosure of assessable income or attempts to avoid liability for income tax. Such actions are dishonest and should be recognised as such. However, such dishonesty does not extinguish a person’s other legal rights, and does not necessarily mean that a person is not telling the truth about other matters, especially after admitting in evidence the prior dishonest acts and intentions.
10 Ms Hutchinson acknowledged that she deliberately did not disclose her hairdressing income over the years before the fall to her accountant. She also said that her income tax return for the year 2000 reflected an income splitting arrangement whereby what was put as her income from a particular company was, in fact, the splitting of her husband’s income. She said he arranged those business affairs at that stage, and for the purposes of this application I accept that that is likely to be true, and there is nothing to indicate to me that she instigated or set up that arrangement.
11 She separated from her husband in 2001. Before then she had been performing what she calls “mobile hairdressing” for clientele whom she would visit at their homes. I found it somewhat surprising that she had established this manner of operation when she did not drive a car – having never learnt or been licensed to drive - but she says that she sometimes went to clients by walking, sometimes by bicycle, and often being driven her husband.
12 I am satisfied that, on separating from her husband in 2001, she was in straitened financial circumstances, seeking extra income in the part-time casual waitressing job with the defendant, hindered in continuing in her mobile hairdressing services as by that stage she did not have the assistance of her husband to driver her to customers, and that this would have been further disincentive to declare her hairdressing income.
13 She also admits that after her fall she continued not to disclose what hairdressing income she made. She acknowledged that the reason that her tax returns from 2002 onwards do disclose income was that it was from those jobs for which she had received a Group Certificate, or was income from interest, which she knew would be recorded elsewhere.
14 I have also noted that there were some parts of the evidence on which her affidavit version deviated from other evidence, in particular as to time frames. These do undermine the reliability of her version on those matters, but I ascribe them partly to her lack of recall or mistakenness as to time frames, and partly to the potential for inaccuracy through the distilling of information into affidavits drawn by lawyers.
15 My impression of the plaintiff was that she is reasonably intelligent, and was genuinely trying to tell the truth in her evidence before the Court, without prevarication or embellishment. She gave evidence frankly and at times made concessions that it was my impression she understood were against her interests in the case.
16 Overall, I have scrutinised the reliability and credibility of the plaintiff’s own evidence and account to doctors more closely than for a plaintiff whose credibility and reliability is not seriously challenged. I am not convinced that it should be entirely rejected on the relevant issues and, on the contrary, I found most of her account convincing. Further, I reject the inference I was at least indirectly invited to draw that the plaintiff was motivated to be dishonest when she told Dr Fung in September 2005 that she believed her shoulder symptoms to date back to the fall, because she had recently consulted her solicitor. I note that were her account that symptoms in her shoulder commenced soon after the fall a fabrication for the purpose of an illegitimate claim against her former employer, it is extremely surprising that she did not lodge such claim in June 2002 when those complaints were made to her chiropractor, doctor, and physiotherapy clinic. It is also unlikely that she would have waited more than three more years to lodge a workcover claim, especially as she was in straitened financial circumstances at the time.
Plaintiff’s relevant background circumstances
17 Ms Hutchinson is now aged 55, and lives with her partner, Mr Gordon Rice, in Warrnambool. She had trained as a hairdresser, and worked full-time employed as a hairdresser until about 1989 or 1990. She married, had a daughter, and worked part-time after that as what she calls a ‘mobile hairdresser’, self-employed, visiting clients’ homes, over many years.
18 She separated from her husband in 2001, apparently in circumstances of animosity. I am satisfied that in the months leading up to the fall she was in straitened financial circumstances, supporting herself and her daughter, and seeking to earn money in a part-time casual waitressing job with the defendant, as well as engaging in her hairdressing services to clientele in their homes, but by then impeded in frequency because it was without the assistance of her husband to drive her.
19 From no later than the early 1990s, the plaintiff had suffered from the effects of tension, particularly pain in her neck, but also in her thoracic and lumbar spine, and also bilateral shoulder pain. She had for many years undergone chiropractic treatment, undergoing what she calls “general adjustment”, which concentrated usually on her neck, and the rest of her spine. The frequency and intervals varied, but in the years before her fall it was approximately every three or so months. She had been attending Mr Steven Treloar, chiropractor, in Geelong.
20 Also, by 2002, she had other health issues, particularly gynaecological.
The fall and following events
21 On Saturday 30 March 2002, the plaintiff was working as a waitress at the defendant’s café in Ocean Grove when she slipped on a substance on the kitchen floor and fell. She knocked her right elbow, probably against the oven, and ended up on the floor. There is insufficient evidence for me to make any finding about whether her right arm was outstretched or took her weight in any way as she Ianded on the floor. It was immediately apparent that she had lacerations to her right elbow which were bleeding, and she was accompanied from work to a local general practitioner, Dr James.
22 Dr James took a history of the fall and the injury to her elbow, and inserted four sutures into two lacerations. She attended three days later when the wound was checked, and on 8 April when the sutures were removed. Dr James did not record any complaint of pain in her shoulder on any of those three attendances. The plaintiff acknowledges that she probably did not tell Dr James about pain in her right shoulder because she was probably not feeling it at that stage.
23 Ms Hutchinson did not work the day after the fall but it is not clear whether or not she was rostered to do so. She returned to work the following weekend and probably did not complain of shoulder pain then or on any subsequent occasion to anyone at the defendant’s café. She worked there as a waitress most of the following weekends, although some of them for fewer than the usual 15 hours, until mid June. The defendant’s managing director states[6] that she left of her own accord for personal reasons. She says, and I accept, that the reason she did not work there in the few weeks after mid-June was that she was not rostered for the following few weekends, having attended to check the roster and been told not to keep attending but that she would be rung when they needed her again.
[6] Affidavit of Alistair Drayton sworn 7/2/10
24 In August 2002 she left Ocean Grove for reasons not connected with any injury. She moved to live in Warrnambool to be with her new partner, Mr Rice.
25 In the meantime, Ms Hutchinson had attended her long-time chiropractor, Steven Treloar, in early May, when she told him of her fall and injuring her right side. Her treatment was again a general adjustment which would have included, but was not specific to, her right shoulder. She next attended Mr Treloar on 20 June 2002 when she told him that symptoms in her right shoulder had been persistent since the previous visit and she requested attention to her right shoulder in addition to her usual spinal complaint.[7]
[7] Exhibits G & V
26 On 19 June 2002, she attended Ocean Grove Medical Clinic where she had seen Dr James, but on this date was seen by Dr Jane Adcock. Ms Hutchinson complained (as the second reason for the consultation) of having a sore right shoulder since the fall, was noted to be tender over the right biceps tendon, and was diagnosed with bicipital tendonitis and advised to apply heat and massage to the area. No x-ray was ordered.
27 Ms Hutchinson then attended for physiotherapy on her right shoulder at Bellarine Peninsula Physiotherapy, being what she describes as a low cost clinic where she would be treated by different physiotherapists, depending on who was on duty on the day. She gave a history of a fall 4 months ago onto her right shoulder. There were 8 attendances for treatment between 21 June 2002 and 5 August 2002[8].
[8] Exhibit N
28 The plaintiff moved to live in Warrnambool in August 2002. She first attended a general practitioner’s clinic in Warrnambool in December 2002, being the Jamieson Street Clinic where she was seen by Dr Fung. She gave a detailed account of her various medical conditions and, it is noteworthy, made no mention of any problem with her right shoulder, past or present. It was not until early March 2005 that she first attended Dr Fung in respect of right shoulder pain.
29 On moving to Warrnambool she also sought out a new chiropractor. On the recommendation of Mr Treloar she tried two chiropractors in Warrnambool, but was not happy with either and eventually returned to Mr Treloar in Geelong, but only occasionally given the distance from her home. The records of one, Mr Jennings[9], do not indicate mention of right shoulder pain as part of her history or presenting complaints when she consulted him in August 2003.
[9] Exhibit 9
30 On 3 March 2005 that she presented to her Warrnambool GP, Dr Fung, with right shoulder symptoms. An ultrasound was ordered and showed an old partial tear of the right supraspinatus, and on discussion of that result on 15 March 2005 Dr Fung recorded that the symptoms had been on and off for 3 years. In September that year she first told Dr Fung that she felt the initial shoulder injury was done at work after a fall in the restaurant at Ocean Grove, and at the same time she mentioned having seen a solicitor about a workcover claim.
31 In October 2005 she was referred to Mr John Bourke, orthopaedic surgeon, in respect of her right shoulder pain. Based on the history she gave and the ultrasound indicating an incomplete tear of the rotator cuff tendon, he felt it likely she had right shoulder dysfunction secondary to a soft tissue injury to the right shoulder at work. He administered an injection of steroid and anaesthetic and advised on exercises and stretches. The pain recurred, and he then recommended hydro-dilation which was performed on 1 December 2005 by Dr Walters, and then physiotherapy and home exercises. He saw her again in June 2006 as the pain from the right shoulder continued, and ordered another ultrasound which showed tendinosis of the supraspinatus tendon.
32 In September 2007 she was referred to Mr Shane Barwood[10], orthopaedic surgeon, who organised for an MRI of her shoulder. That confirmed tendinosis of the supraspinatus with a partial thickness tear, and also confirmed impingement of the supraspinatus tendon from both the subacromial space and from an osteophyte from the AC joint. There was also increased signal in the biceps anchor and labrum consistent with some degenerative superior labral tear[11]. Mr Barwood discussed and recommended arthroscopic surgery, but she did not wish to have it at that stage, and planned to continue with physiotherapy to try to strengthen the remaining rotator cuff. However, on review with Mr Barwood in September 2008, she had increasing pain in the shoulder that was waking her at night and she said she was having difficulty with hairdressing work, and wanted to have the surgery.
[10] During Dr Fung’s absence on sick leave this referral was from Dr Paul Viney of the same clinic.
[11] Report of 9/4/08, in Exhibit K.
33 On 30 October 2008, Mr Barwood performed a right shoulder arthroscopic subacromial decompression with an associated bursectomy and excisional arthroplasty of the AC joint, a tenodesis of the biceps tendon, and a general debridement of the glenohumeral joint.[12] He explained the subacromial
decompression as “removing the anterior portion of the acromial bone that was rubbing on the rotator cuff tendon, where the partial tear was”[13].[12] Report of 25/8/09 in Exhibit K
[13] T 202, lines 13-16
34 Her wound healed and the shoulder improved well but was still quite weak clinically after 3 months. Physiotherapy was to continue. By May 2009 she had regained a near full range of motion, although the shoulder still felt mildly weak, and increased activity with the shoulder had caused recurrence of some shoulder pain, but Mr Barwood encouraged continued use of the shoulder as comfortable.
35 In December 2009 she returned to Mr Barwood complaining of increased pain on returning to work and increased activity. He ordered another MRI which indicated that the biceps tendonitis had healed appropriately and the labrum was intact although somewhat degenerative. He felt her symptoms were more consistent with ongoing impingement due to adhesions and scar formation in the subacromial space. He recommended injection as an indication of whether the pain was coming from that region, and she underwent such injection which gave some improvement, but not prolonged. Mr Barwood then undertook further surgery, in April 2010, although he had warned her that it might only bring about partial relief. He found by arthroscope, and excised by open operation, significant adhesions in the sub
deltoid region under the biceps tenodesis scar a local bursectomy was completed.[14] Mr Barwood states that unfortunately she has not gained improvement from
this surgery, and there is no other surgical treatment he can offer. He recommended further physiotherapy, and a pain management program.[14] T 210
36 Ms Hutchinson attended St John of God Hospital for rehabilitation, but after two sessions she ceased due to increased pain, and it was recommended she undertake a pain management program elsewhere. Funding for this and for physiotherapy had recently been approved by the Workcover insurer shortly before the hearing. Those therapies will hopefully help her to adapt to the long-term symptoms of her condition, but Mr Barwood’s opinion was that symptoms were likely to continue to the extent of impairing her activities and work capacity.
Was the fall a significant contributing cause of her shoulder condition?
37 In April 2006 Dr Gary Davison, occupational physician, reported to the workcover claims agent[15] that he doubted a causal connection between the fall and the plaintiff’s right shoulder condition because she described only falling against the oven, and not a fall onto an outstretched hand which would be a more consistent mechanism of injury. All other doctors who examined Ms Hutchinson up to December 2009 were satisfied that there was a relevant causal connection between the fall and the plaintiff’s right shoulder condition - treating specialists Mr John Bourke[16], and Mr Barwood[17]; medico-legal examiners retained by the defendant, Mr Brendan Dooley[18] and Mr Paul Kierce[19]; and a medical panel opinion[20]. The claim was accepted and liability admitted for the injuries including “aggravation of Right Rotator Cuff Dysfunction of the right shoulder”[21].
[15] Exhibit 7
[16] Exhibit F
[17] Exhibit K – and in oral evidence
[18] Exhibit P – report of 15 March 2007
[19] Exhibit O – report of Exhibit 17 October 2007
[20] Exhibit S – Dr John Malio, Mr Philip Griffin, Dr Richard Travers – 3/10/06.
[21] Exhibit R- Letter to plaintiff from CGU dated 20 March 2007.
38 However, in early December 2009, a solicitor for the defendant wrote to both Mr Dooley[22] and Mr Kierce[23], asking for their opinion on a scenario she apparently felt undermined the causative link between the fall and the plaintiff’s shoulder injury. In my view that letter contained two important flaws in relation to its stating of the evidence of complaint and medical or like treatment for the plaintiff’s right shoulder. One of these was due to the solicitor’s misstating of the materials – that “she did not consult any GP about shoulder pain until 3 March 2005” - an error noticed by Mr Dooley and also Mr Kierce. The other was due to there not having being located at that stage the file of the plaintiff’s physiotherapy treatments at Bellarine Community Health Service. It seems to have been assumed that the plaintiff’s reference to having physiotherapy treatment in the months after the fall was a reference to treatment by a Mr Zenert which was well after she moved to Warrnambool. The only pre- 2010 mention I can see of the name of the clinic had been in Dr Davison’s report, and it may have been overlooked because his opinion on causation had not been followed.
[22] Exhibit T
[23] Exhibit U
39 As a result of the defendant’s solicitors’ letter, Mr Dooley changed his opinion about causation. He explained this as including that he presumed from the fact that no x-rays were taken after her report of right shoulder pain to Dr Adcock on 19 June 2002 that there was only minimal pain affecting her right shoulder then. He was not aware that she underwent 8 sessions of physiotherapy for the shoulder between 23 June and 5 august 2002, which in my view undermines the assumption he made of minimal pain at that stage. He concludes that because many people of her age have asymptomatic partial tearing or tendonitis in their dominant shoulders, one cannot state with any certainty that her partial tearing relates to traumatic tearing in the fall. Further, he concludes that in June 2002 she experienced symptoms spontaneously occurring and absent any injury but due to normal wear and tear in the activities of daily living. He states however that if she had complained of pain in her right shoulder following the fall, within 6 weeks of the fall, he believed the probabilities are that her current condition relates to the fall.[24] I note that this opinion was given in response to the defendant’s solicitors’ letter, so without re-examination of the plaintiff, or any further questioning of her as to the timing of onset of symptoms.
[24] Exhibit P, report dated 3 December 2009
40 As a result of the defendant’s solicitors’ letter Mr Kierce also changed his opinion, concluding that the causal connection became “uncertain” – and that “on the basis of a reasonable degree of medical certainty, her shoulder condition has not been related to that injury”[25]. Mr Kierce noted that he had based his earlier opinion on the history he had been told by the plaintiff that within a week or two of her fall she had started to suffer with right shoulder pain for which physiotherapy was organised in Ocean Grove, attending approximately weekly for a few months. He also interpreted the history to Mr Treloar as being that she had not mentioned any right shoulder complaint on 1 May, 2002 and had first mentioned it on 20 June as persisting since the previous visit. Like Mr Dooley, Mr Kierce did not re-examine the plaintiff to reach this change of opinion, so also did not have the chance to question her to clarify what he saw as discrepancies.
[25] Exhibit O, report of 8 December 2009
41 Notwithstanding the correspondence between the defendant’s solicitors and Messrs Dooley and Kierce, the workcover claims agent in the meantime had requested further medico-legal opinion from Mr Stanley Schofield, orthopaedic surgeon. His report[26] described “a clear history of injury to her right shoulder as a result of a fall on the 30th March 2002”. I note that he had a description of right arm pain being reported to her GP on the day of the fall, and that right arm pain being mainly in the shoulder region. As that history is not borne out by the evidence before me, I take Mr Schofield’s opinion as supporting the plaintiff’s case but not directly contradictory to Mr Dooley and Mr Kierce’s retractions of their earlier similar opinions.
[26] Exhibit Q
42 Mr John O’Brien has also provided a medico-legal opinion[27], based on a description of the fall which included that she struck her elbow on the oven before landing on her outstretched right hand and buttocks. She also told him that she became aware of a very sore shoulder, by implication only shortly after the first visit to Dr James. Mr O’Brien believed that the fall precipitated right shoulder pain which has been an ongoing problem, and at the time he saw her in February 2010 symptoms would certainly confirm active rotator cuff pathology (this was at about the time when Mr Barwood suggested further surgery). His view was that she was significantly disabled in her general activities, and further arthroscopic treatment was probably necessary.
[27] Exhibit L – at request of plaintiff’s solicitors.
43 Mr Shane Barwood, the plaintiff’s treating orthopaedic surgeon, was cross- examined extensively, and maintained his opinion of the relevant causal connection. Moreover, his evidence was that the condition of the plaintiff’s
shoulder included increased synovitis in the biceps tendon[28], meaning inflammation around the biceps tendon, and surrounding oedema,[29] as well as the partial thickness tear in the supraspinatus tendon. The involvement of the biceps tendon as shown on MRI in late 2007, and seen in operation by Mr Barwood, in my view negates the argument of the defendant that the area of pain reported to Dr Adcock on 19 June 2002 was different from and therefore unrelated to the later problems in her shoulder.
[28] As shown on the first MRI
[29] T 197
44 Also in evidence and supporting the plaintiff’s case on causation were not only the original acceptance of liability for the injury[30] , but also evidence that the insurer approved further surgery on the right shoulder – performed by Mr Barwood in April 2010 – and also two recent letters accepting liability for further treatment for the plaintiff in respect of her shoulder condition[31]. The latter were well after the opinions of Mssrs Dooley and Kierce had changed on causation. The defendant’s counsel acknowledged that as admissions on this issue, these are all significant evidence, but not conclusive[32], and argue that the admissions are refuted in this case by other evidence. I do not agree, as there is no satisfactory explanation from the defendant as to why those admissions should not stand[33]. Although the original acceptance of liability was prior to Mr Dooley and Mr Kierce ostensibly changing their earlier opinions, the insurer reconfirmed the causal connection by accepting liability for the April 2010 surgery and then for even more further treatment for the injury by way of physiotherapy and pain management well after the changed opinions of Messrs Dooley and O’Brien were obtained.
[30] Exhibit R
[31] Exhibit W
[32] Ansett Australia Ltd v Taylor [2006] VSCA 171 at para [40] per Ashley JA
[33] Op cit, para [40]
45 Moreover, I am not persuaded by the reasons for the changed opinions of Messrs Dooley and Kierce. First, neither was aware of the sustained period of physiotherapy at Bellarine Peninsula Health Service as recommended by Dr Adcock, and undergone before she left Ocean Grove, consistent in my view with a sustained period of shoulder symptoms starting less than 3 months after the fall, making it more likely than not that the fall had precipitated those symptoms, and in my view more likely than a spontaneous onset.
46 Secondly, from first reporting shoulder pain to her chiropractor and GP, she described it as having persisted since soon after the fall, although in evidence she admitted probably not within the first week or 9 days (ie not before removal of stitches on 8 April 2002). She did not make a Workcover claim in respect of the fall until September 2005. There was clearly no reason for her to have attributed her shoulder pain to the fall, as she clearly did to Dr Adcock, Mr Treloar, and Bellarine Peninsula Health Clinic, if it were not true that she felt that the shoulder pain had started soon after the fall. She clearly was not doing so at that stage with a view to making a Workcover claim, notwithstanding that she was in straitened financial circumstances such that she could not afford private physiotherapy treatment. I believe her evidence that the shoulder pain did start soon after the fall, and that returns Mr Dooley’s opinion to one supporting the causal connection. Mr Kierce’s view was of “definite uncertainty”, making the injury unrelated “on the basis of medical certainty” . My decision is reached on a different standard – the balance of probabilities – and on that standard I am satisfied that the fall was a significant material contribution to the plaintiff’s current shoulder condition.
47 I am satisfied on the balance of probabilities that the plaintiff suffered biceps tenodesis, partial tear of the supraspinatus tendon and impingement of the supraspinatus tendon, on the right side, to which her fall at work was a significant contributing factor.
Does the plaintiff’s shoulder injury meet the test for “serious injury”
48 The defendant argues that notwithstanding surgery and current medical advice for further physiotherapy and a pain management program, the permanent consequences to the plaintiff of her shoulder injury are not bad enough to be fairly described as “more than significant or marked” and “at least very considerable”. It argues that the injury at most was an aggravation of pre-existing degeneration in her shoulder. I take it to also argue that she had pre-existing symptoms from this condition in her shoulder – that underwent chiropractic therapy before the fall. The defendant points to the activities which the plaintiff can still do – her retained capacities- and relies on video surveillance[34] which it argues shows her moving freely going about the same activities which she told Mr Jennings were her main interests when she first saw him in August 2003.
[34] Film taken 15/11/10 was shown during the hearing. Earlier surveillance was also tendered, by consent, not being put to her in cross-examination. I viewed each of these discs out of court time, and have taken them into consideration in reaching my decision.
49 The plaintiff’s counsel concede that had the application been brought before late 2005 she would have had great difficulty satisfying the test, as her symptoms were not so severe as to require significant treatment or interfere with her general activities, including her ability to perform hairdressing work when she chose. However, they argue that she now does meet the test, her symptoms having worsened to the extent that she eventually agreed to surgery, it gave only temporary relief, and the review surgery carried out by Mr Barwood in April 2010 has not succeeded in giving much relief.
50 I have watched all of the video surveillance tendered. Much of it shows the plaintiff walking around the streets and shopping precincts of Warrnambool, and none shows her obviously impeded in the use of her shoulder. Whenever seen wearing a shoulder bag it is over her left shoulder. At times she appears to swing her right arm freely from the shoulder, but at other times the arm is either by her side, resting on her handbag when it is worn across her body, or moving mainly from the elbow. On one occasion only did I notice her move her shoulder further than I would otherwise have expected – at a Lenards’ chicken counter where she briefly extended her right arm across the counter to accept change, at height above her shoulder level[35]. I also noted that when she selected a cauliflower in Aldi supermarket she took its weight with her left hand, and carried the shopping bag with her left arm, and twice when she opened the car boot she used the key with her right hand but used only her left arm to raise and lower it[36]. She was shown briefly walking a dog, and walking without a dog in exercise clothes, but in neither was she doing anything unexpected with her right arm or shoulder.
[35] 15/11/10, 10.51am
[36] Video taken 24 /2/10.
51 I accept that she was not showing obvious restriction of use in the right shoulder in any of the video surveillance, but that does not convince me that I should doubt her evidence that she experiences pain and restriction of movement of her shoulder. She is demonstrably not house-bound, and is able to go about shopping, visiting civic offices, and browsing in book shops, as well as walking for exercise, but she has never claimed to be unable to do any of these activities. I do not take the ability to leave home and be filmed as necessarily showing capacity beyond what amounts to serious permanent impairment, when compared with other applicants under s 134AB.
52 I am satisfied that the plaintiff suffered pain in her right shoulder that started in the weeks after the fall, was of a degree that troubled her enough to raise it with a general practitioner, Dr Adcock, with her long-term chiropractor Mr Treloar, and to seek a course of physiotherapy treatment over some 6 or 7 weeks. It clearly did not continue at such significant levels for a couple of years after that, but I accept her evidence that she did experience pain and discomfort in her right shoulder “on and off” over the next two and a half years. It was not sustained or serious enough to prompt her to seek active treatment or to report it to her new General Practitioner on first consultation after her move to Warrnambool, nor in any of the visits she made over the next two and a half years. The defendants argue that it is “unthinkable” that she would attend 24 times at the Jamieson Street clinic without mentioning right shoulder pain if she experienced it. She did have many visits between December 2002 and March 2005, and I accept that in none of them did she mention right shoulder problems in any way that caused any doctor to record it, but she was mainly attending for what were apparently more serious and more pressing conditions. I also note the explanation by Mr Barwood, that when there is a partial tear patients often do not report pain because it comes and goes and if the patient is reasonably stoic it is not surprising that it would not be reported to a doctor.
53 Following complaint about shoulder pain to Dr Fung in March 2005, I am satisfied that there were more sustained symptoms leading to referral to several specialists. I am satisfied that Ms Hutchinson is a person whose long adherence to chiropractic treatment would have inclined her to avoid interventionist medical treatment. That explains her preferring to follow conservative alternatives, despite Mr Barwood’s initial recommendation of surgery. In my view it also reflects that the pain and disability in her shoulder must have become very significant for her to return to him seeking the surgical approach. Similarly, I am satisfied that she was in very considerable discomfort to agree to the second surgery he recommended. The evidence is not challenged that the second surgery, to relieve impingement caused by scar tissue from the first operation, has not been successful in relieving pain – at least Mr Barwood was not cross-examined to that effect, and the insurer has now approved a pain management program and further physiotherapy as recommended by Mr Barwood.
54 The plaintiff describes ongoing impairment in use of her shoulder, in household tasks and every day activities – that she is restricted in gardening and lifting heavy items such as a roast from the oven, in vacuuming and heavy household cleaning, and has had to moderate other activities. She has ongoing pain in the shoulder which I accept is with her most of the time, albeit to varying degrees, for which she takes over the counter medication and which at times interrupts her sleep. While this is no longer a claim for leave in respect of loss of earning capacity, I accept as relevant to her claim for pain and suffering damages that she has been significantly impaired in being able to continue working, and that has cut her off from the social interaction and camaraderie she enjoyed at her various jobs.
55 Since the latest surgery she has experienced ongoing pain of a severity requiring rehabilitative pain management treatment. She was not challenged that after two sessions aimed at this at St John of God Hospital she had to cease due to worse pain. Notwithstanding her retained capacities – to walk, to learn to drive, and to perform various moderated tasks with her right arm - she is right arm dominant and restriction from movement due to pain in that arm in my view is very significant.
56 The defendant also argues that the injury should be approached as an aggravation of a pre-existing degenerative condition in her right shoulder, so that only the consequences of the incremental impairment caused by the fall may be taken into account in assessing whether the degree of impairment meets the test for seriousness. I take the defendant to be relying for this argument on the medical opinion that the injury was an aggravation of rotator cuff degeneration, and on the fact of previous chiropractic treatment for neck and shoulder pain.
57 I am satisfied on the balance of probabilities that the conditions for which the plaintiff had been seeking chiropractic adjustment for many years before the fall were unrelated to the injury caused in the fall or to her present symptoms in her right shoulder. Mr Barwood considered previous chiropractic treatment irrelevant to his opinion. Ms Hutchinson describes the reason for seeking chiropractic treatment as tightness due to tension, experienced mainly as pain in the neck. On cross-examination she readily agreed that it extended into her shoulders so she had been treated in the shoulders and her whole spine also. I did not understand her to be saying that she had experienced or been treated prior to her fall for the same type of pain in her shoulders as she experienced in her right shoulder after the fall or over the last five years, and in re-examination she said that she had never had that pain prior to the fall.
58 To the extent that the pathology found by doctors is an aggravation of pre- existing degeneration in her right rotator cuff, I am satisfied that the injury caused in the fall activated symptoms that had not previously been experienced by her, and that these worsened from early 2005. Mr Barwood’s explanation of the role of the tear in the tendon being only partial is consistent with this, as is the lack of similar symptoms emerging in the left shoulder if the natural progression of an underlying condition or wear and tear were the likely cause. I am not satisfied that there is anything to indicate that she would currently be experiencing the pain and level of disability she has in her right shoulder had she not injured it in the fall. I therefore take into account all of her current symptoms and disability as consequences of the compensable injury.
59 I am satisfied that the extent and degree of impairment of her right shoulder experienced by the plaintiff currently, and that being unlikely to significantly improve in the foreseeable future, can fairly be described as more than significant or marked and at least very considerable in their impact on her life and lifestyle, when compared with other possible impairments of body function.
Conclusions
60 I am satisfied that as a result of her fall at work on 30 March 2002 the plaintiff suffered injury to her right shoulder the consequences of which satisfy part (a) of the definition of test for serious injury, and I propose to grant her leave to bring a claim for pain and suffering damages in respect of that injury.
LIST OF EXHIBITS
HUTCHINSON v Beach Café Pty Ltd (CI-08-02572)
| Number and | Short Description of Exhibit | Tendered by |
Identifying Mark
on Exhibit
A Copy affidavits of the plaintiff dated 20 Feb Plaintiff 2008, 11 Feb 2010 and 30 Nov 2010 B Reports of Dr W.P. Fung of Jamieson Street Plaintiff Medical Clinic dated 20 October 2005 and 23
November 2010C Copy referral letter from Dr W.P. Fung of Plaintiff Jamieson Street Medical Clinic to Dr John
Bourke 20 Oct 2005D Affidavit of Mr Gordon John Rice dated 15 Oct Plaintiff 2010 E Affidavit of Mr Graham Monk dated 12 Feb 2010 Plaintiff F Reports of Dr John Bourke dated 10 Nov 2005 Plaintiff and 22 June 2006 G Report of Mr Stephen F. Treloar dated 3 April Plaintiff 2006 H Letter from Dr Robert James of Ocean Grove Plaintiff Medical Clinic dated Brown McComish Solicitors dated 29 June 2006
J Reports of Mr Ian Zeunert dated 24 July 2006 Plaintiff and 13 Nov 2009 K Reports of Mr Shane Barwood dated 15 Jan Plaintiff 2008, 9 April 2008, 25 Aug 2009, 17 March 2010, 21 Oct 2010 and Operation Report of 22 April 2010
L Report of Mr John F O’Brien dated 8 Feb 2010 Plaintiff M Report of Dr J Rogan of Western District Plaintiff Radiology dated 14 June 2010 N Records of Bellarine Peninsula Community Plaintiff Health Service Inc for the period 21 June 2002 to 5 Aug 2002
O Reports of Mr Paul Kierce dated 17 Oct 2007 Plaintiff and 8 December 2009 P Reports of Dr B.J. Dooley dated 3 Dec 2009 and Plaintiff 15 March 2007 Q Report of Dr S.F Schofield dated 22 Feb 2010 Plaintiff R Letter from CGU to Plaintiff dated 20 March Plaintiff 2007 S Conciliation outcome certificate dated 2 Nov Plaintiff 2006 and certificate of opinion of Medical Panel
3 Oct 2006T Letter of instruction to Mr B Dooley from Plaintiff Defendant’s solicitors dated 3 Dec 2009 U Letter of instruction to Mr P Kierce from Plaintiff defendant’s solicitors dated 3 Dec 2009 with
enclosuresV Mr Stephen F. Treloar’s clinical notes Plaintiff W Letters from CGU to the plaintiff dated 19 Aug Plaintiff 2010 and 6 Oct 2010
| Number and | Short Description of Exhibit | Tendered by |
Identifying Mark
on Exhibit
1 Video surveillance film of plaintiff taken 15 Nov Defendant 2010
| 2 absolutely | Video Surveillance on 6 dvds of various dates | Defendant |
tendered 8/12/10
3 Copy referral letter to Mr S Barwood from Dr Defendant Paul W Viney dated 17 Sep 2007 4 Affidavit of Alistair Drayton sworn 27 Feb 2010 Defendant 5 Workers claim form dated 9 Dec 2005 and Defendant employers response 6 Medical Certificate from Ocean Grove Medical Defendant Clinic of 30 March 2002 7 Report of Dr G Davison dated 5 April 2006 Defendant 8 Clinical Notes of the plaintiff of Jamieson Defendant Medical Clinical from 10 Dec 2002 to 20 Feb
20089 Clinical notes of Dr W Jennings Defendant
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