Innes v Victorian WorkCover Authority
[2020] VCC 23
•3 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-04831
| JOHN INNES | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 November 2019 | |
DATE OF JUDGMENT: | 3 February 2020 | |
CASE MAY BE CITED AS: | Innes v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 23 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – pain and suffering consequences arising from impaired function of right shoulder
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Judgment: The plaintiff is granted leave to commence proceedings at common law for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Clements QC with Ms J Frederico | Maurice Blackburn |
| For the Defendant | Mr T Storey | Thomas Geer |
HIS HONOUR:
1 The plaintiff is aged seventy-two. He was born in Scotland. He moved to Australia at about age eleven. He left school at fourteen. He commenced working in the maritime industry. He would remain in that industry all of his working life. In 2000 he commenced working for the defendant as a seafarer, working on a tugboat schooling ships in and out of Westernport Bay.
The Plaintiff’s injury
2 On 8 January 2015 whilst working for the defendant on a tugboat, he was required to hold a heavy cooler that weighed about 25 kilograms above shoulder height for a lengthy period of time and developed right shoulder pain. When he returned to land he went to see his general practitioner, Dr Agnes Brosz, with right shoulder pain, which he said had gradually worsened since the incident on 8 January.
3 Counsel for the plaintiff in the course of his opening said that the plaintiff’s claim is brought on the basis of a permanent serious physical impairment to the function of the right shoulder. Counsel said that the application likely fell to be considered as one of a type of case that is referred to on occasions as a “range” case. Counsel for the defendant did not disagree. I agree with the plaintiff’s counsel.
The Plaintiff’s post injury treatment
4 On 23 January 2015, the plaintiff attended Dr Brosz because he said he had been experiencing the gradual worsening of the right shoulder pain since its onset on 8 January.
5 On 27 January, he underwent x-ray and ultrasound of the right shoulder. The ultrasound reported a small full thickness tear of the right supraspinatus tendon.
6 On 30 January 2015, Dr Brosz referred him to Mr Eden Raleigh, orthopaedic surgeon, whom he saw on 2 February 2015.
7 On 7 April 2015, Mr Raleigh performed right shoulder surgery by way of a AC joint resection decompression and rotator cuff repair arthroscopically and his report of findings included:
·full thickness large tear of the supraspinatus tendon, 3 centimetres x 2 centimetres
·bursitis
·impingement
·severe AC joint OA (osteoarthritis).
8 On 24 April 2015, he commenced physiotherapy treatment for his right shoulder.
9 On 24 May 2015, a further x-ray and ultrasound of his right shoulder was performed.
10 On 15 June 2017, he had a steroid injection to his right shoulder.
11 On 21 July 2015, he was reviewed by Mr Raleigh who stated: “doing really well with his shoulder” and “[h]e is desperate to get back to work”.[1]
[1]Exhibit P3, See report dated 21 July 2015, Plaintiff’s Court Book (“PCB”) 42
12 In August 2015, he returned to work on light duties, twelve hours per week.
13 In approximately October 2015, he accepted an early retirement package from Svitzer Australia Pty Ltd. He told me that he realised that due to his right shoulder condition he would not pass the compulsory annual physical examination for those who are required to go to sea.
The Plaintiff’s evidence
14 The plaintiff made two affidavits dated 25 June 2018 and 19 November 2019 in support of his application. In his evidence-in-chief he adopted the contents of them to be true and correct. In the latter affidavit he deposed to experiencing:
·Constant pain in his right shoulder, sometime sharp, sometimes a nagging ache.
·The need to take Codeine and to take Panadol every day or second day on an as needs basis and occasionally Panadeine Forte for shoulder pain.
·Upset that his right shoulder condition had forced him into early retirement.
·An increase in his right shoulder pain on the use of his right arm.
·Sleep interruption in the order of a couple of times a night due to right shoulder pain for which he takes Stilnox.
15 He deposed that he continues with physiotherapy and used heat packs for his shoulder pain.
16 He deposed to an inability to resume golf or swimming due to ongoing right shoulder symptoms.
17 The plaintiff complained of disturbed sleep resulting from his injury and the clinical record identified that the plaintiff had been prescribed Stilnox to assist with sleep disturbance before the injury, and he agreed that he had suffered from sleep disruption due to the nature of his work on tugboats involving varying shifts.
The medical and like evidence
18 The plaintiff tendered the following evidence:
· Affidavits of the plaintiff, sworn 25 June 2018 and 19 November 2019.[2]
[2]Exhibit P1, PCB 9-20
· Reports of Dr Brosz, dated 4 January 2017 and 4 June 2019.[3]
[3]Exhibit P2, PCB 33-36
· Report of Mr Raleigh, dated 22 November 2016.[4]
[4]Exhibit P3, PCB 43-45
· Report of Mr Ashley Haleel, dated 2. September 2019.[5]
[5]Exhibit P4, PCB 55-57
· Report of Dr Minh Tran, dated 27 January 2015.[6]
[6]Exhibit P5, PCB 58
· Report of Mr Russell Miller, dated 19 July 2019.[7]
[7]Exhibit P6, PCB 59-65
· Report of Dr Clayton Thomas, dated 6 August 2019.[8]
[8]Exhibit P7, PCB 66-69
· Report of Dr Nigel Strauss, dated 26 September 2019.[9]
[9]Exhibit P8, PCB 70-78
· Xray and ultrasound, dated 25 May 2017.[10]
[10]Exhibit P9, PCB 80
· Ultrasound-guided steroid injection to the right shoulder dated, 15 June 2017.[11]
[11]Exhibit P10, PCB 79
· Affidavit of Toni Innes, sworn 22 November 2019.[12]
· Affidavit of John Higgins, sworn 22 November 2019.[13]
[12]Exhibit P11, PCB 81-84
[13]Exhibit P11, PCB 85-88
19 The defendant tendered the following evidence:
· Reports of Mr Michael Dooley, dated 26 August 2019 and 15 October 2019.[14]
[14]Exhibit D1, DCB 1-7
· Three disks – surveillance dates 24 August 2018, 10 November 2018 and 8 June 2019.[15]
· Schedule of surveillance.[16]
[15]Exhibit D2
[16]Exhibit D3
20 I have read and considered all of the medical evidence presented by the parties, but I have not found it necessary to refer to a great deal of it, because the application was not really one determinable by reason of the various opinions of the treating or medico-legal reporters. For instance, it was not contested by the defendant that the plaintiff suffers from persisting rotator cuff dysfunction and capsulitis.[17] I have had regard to the reports of Mr Dooley, orthopaedic surgeon, who examined the plaintiff on behalf of the defendant, and who, in his second report dated 15 October 2019, wrote that he believed the plaintiff’s level of physical capability compared favourably with an average seventy-two year old who has worked in manual employment, and that he would not categorise the plaintiff’s loss of right shoulder function as “significant” or “marked” but, instead, as mild to moderate.[18] It is far from clear to me that Mr Dooley has identified the circumstances relating to the plaintiff’s life and social and recreational activities that would warrant him having arrived at the assessment he has, but in any event, the ultimate question is a legal question and not a medical one.
[17]Exhibit P6, See report of Mr Miller, dated 19 July 2019, at PCB 63
[18]Exhibit D1, See report of Mr Dooley, dated 15 October 2019, Defendant’s Court Book (“DCB”) 6
The controversies
21 The main controversy is whether the plaintiff has suffered a loss by way of pain and suffering consequences due to the impaired function of his right shoulder that is serious when judged by comparison with other cases, in the range of possible impairments or losses of a body function, such as may be fairly described as being “more than significant or marked”, and as being “at least very considerable”.[19] Naturally enough, the effects on the plaintiff are personal to him, but the determination of whether the impairment satisfies the test of seriousness is to be objectively determined by reference to the consequences he experiences judged by comparison with other cases in the range of possible impairments or losses of body function.
[19]Humphries & Anor v Poljak [1992] 2 VR 129
22 In determining whether the impairment consequences of injury are serious, one should consider not only what symptoms the plaintiff has and what he is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. Impairment is concerned with what has been lost but the significance of what has been lost, which bears upon the seriousness of consequences and may be informed, to an extent, by what has been retained.[20] I have undertaken that exercise and I am satisfied that in many respects the plaintiff has been affected by his injury and that his retained capacity is informed by the necessity to calibrate as well as to relinquish some activities. I am satisfied that what he has retained does not outbalance the significance of those things that have been taken away. Loss of an ability to undertake previously enjoyed activities, including a loss of work, and frustration of that loss, are also relevant to assessing pain and suffering.[21] I have had regard to the same in this case.
[20]See Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, per Ashley JA
[21]See Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
23 The plaintiff was on antidepressant medication from about 2000 until January 2015; that is, just before the right shoulder injury. Counsel for the defendant suggested to the plaintiff in cross-examination that the predominant disabling effect on him is his mental state and not his physical impairment. The allegation is not without some basis. The plaintiff has experienced depression. It is not surprising, given that he lost his son as a result of a violent assault in 2000, not long prior to the work injury, and before that he also underwent treatment as a result of a diagnosis of prostate cancer. He admits he has been made emotionally worse by the loss of his employment due to his work injury. However, to counter the accumulation of the plaintiff’s pain and suffering consequence, and the attribution of it to his mental state overall, I note that in the opinion of Dr Strauss, who examined the plaintiff at the request of his solicitors, his mental condition is mild, and Dr Dush Shan, who examined the plaintiff on behalf of the defendant, found that that the work injury amounted only to a mild aggravation of the Depressive Disorder that resulted from the death of his son. Moreover, I note that the plaintiff has not been under the care of a mental health professional. Therefore, I am satisfied that the plaintiff’s emotional and mental state has been sufficiently disentangled from the physical injury and resulting impairment to the function of the right shoulder as the cause of his pain and suffering consequences that I have identified.
Surveillance and its effects
24 The defendant’s resistance to the plaintiff’s application was focused very substantially on the contention that the plaintiff’s impairment consequences, when objectively assessed are not within a range, that meets the requisite test for “serious injury”. In support of this argument, the defendant pointed out that a number of the pain and suffering consequences relied on by the plaintiff are questionable and, moreover, surveillance footage taken of the plaintiff and played to him in the course of the hearing, is indicative of the retention of a much greater tolerance and physical capacity than he would have the Court accept. For the reasons that follow, I do not accept the defendant’s submissions.
The surveillance
25 The defendant undertook in the order of fifty hours of surveillance. The plaintiff was filmed on four occasions. Film taken of three occasions was played by the defendant. Something under thirty minutes was shown of the plaintiff. In any event, and putting to one side the questions of the amount of film shown of the plaintiff, as opposed to the amount of film recorded of him, and, moreover, what could properly be inferred from what was not shown, about which I have not found it necessary, despite counsel for the plaintiff’s submission, to draw an adverse inference.
26 The plaintiff’s further affidavit detailed that the pain he suffers in his shoulder “increases commensurate with how much I use my right arm. The more I use my right upper limb, the greater the pain I suffer in my right shoulder”.[22] Indeed, the plaintiff explained the effects of pain that result from physical activity. In particular he said:
“My shoulder takes some time to warm up in the morning. When I wake up it is stiff and sore. Once it is warmed up, I can move my arm in a relatively wide range of movements, although I cannot move it as much or as freely as I move my left arm for any prolonged period of time. However, then I start using my arm and suffer from increased pain. I pay in terms of pain for trying to use my arm too much. I then suffer increased pain for a number of days and can do very little”.[23]
[22]Exhibit P1, Further Affidavit paragraph [8], PCB14-20
[23](Supra), paragraph [9], PCB 16
27 Tellingly and relevantly, so far as the plaintiff’s gardening is concerned, he further deposed that:
“… What I try and do is spend a certain amount of time performing an activity, for example, gardening, and then I take a rest. However, my problem is that once I get going doing something, I want to keep going. I cannot seem to help myself as I have always been an active person and the sort of person who is keen to get the job done. I ways end up paying for not pacing myself with increased pain….”[24]
[24](Supra), paragraph [11], PCB 16
28 Counsel for the defendant sought to undermine the reliability I should place in the plaintiff and his deposition concerning his gardening activities. Counsel suggested to the plaintiff that he made references to his gardening in his further affidavit because he had become aware that he had been the object of surveillance and, so as to counter what the camera revealed, the passages about his gardening were included to offset the implications of him undertaking those activities.
29 It was put to the plaintiff in cross-examination that at the date of the serving of his further affidavit in November 2019, he was aware that he had been under surveillance and he said: “I was aware that I may have been under surveillance”.[25] Furthermore, the plaintiff was directed to a clinical note of Dr Brosz, dated 3 July 2019, that included the plaintiff was very upset because he had been told he had been put under surveillance doing gardening work. There were exchanges back and forth between counsel and the plaintiff about his knowledge of being filmed as opposed to a suspicion, and questions, too, about the source of his knowledge, but, be that as it may, I accept, that on the balance of probabilities, the plaintiff felt or suspected, and subsequently became conscious of, some surveillance of him whilst gardening. However, I do not accept the further implication put to the plaintiff by counsel, namely, that the contents deposed by him relating to his gardening activities were somehow impermissibly included with the intention to counter the concern he had about being “caught out” under surveillance. Those parts of the further affidavit to which the plaintiff was directed in cross-examination, and that were said to be answerable to his belief that he had been filmed, were these:
“Otherwise, I like to keep busy in the garden, I have done a lot of work changing the layout of my garden to make it easier to maintain in the long-term. As a result, I have often paid for my efforts with increased pain in my right shoulder. The garden has taken me a lot longer to fix up to make it low maintenance as a result of my shoulder injury and trying to pace myself and manage my pain.
In order to make the garden lower maintenance, the sort of jobs I have done include chopping a tree down with an electric chainsaw, digging up plants and putting new plants in, mowing the lawn, collecting mulch from my garden and the like. At the end of a day in the garden, my right shoulder is very sore. Now that I have reconfigured my garden, I will have less to do in the garden which I hope will give me some relief from the pain”.[26]
[25]Transcript (“T”), 29
[26]Exhibit P1, Further Affidavit, paragraphs [20] and ]21], PCB 18
30 I have examined the footage and read the plaintiff’s evidence, and listened to his oral testimony. I accept that he has a physical capacity to undertake some strenuous garden-related activities, but occasionally. However, I also accept that the plaintiff suffers, in consequence of the same, because of the nature of the impairment to the function of his right shoulder. In cross-examination, the plaintiff said that he does a lot of gardening work but “that it is with pain” and he clarified matters by saying that the pain was brought on by vigorous gardening work. He accepted, too, that when performing vigorous gardening work, he is able to use both hands.
31 I add, further, that I do not regard the fact of the plaintiff having been suspected, or having become aware he was being filmed, and taking steps to address and explain the activities he was engaged in by way of affidavit, as throwing doubt on his veracity.
Pain and Suffering consequences
Sleep
32 The plaintiff deposed that he is prescribed Stilnox for sleeping at night. I accept that the plaintiff had suffered from disturbed sleep in his working life and that, prior to the injury, had taken medication for it, because his work, including periods at sea and varying shifts had been the culprit. However, the cause is no longer his work, as that has ceased, but rather it is his impaired function and the accompanying pain. I do not regard it as an answer to a complaint of a particular pain and suffering consequence that a plaintiff had suffered a like consequence in the past due to a non-impaired function. He suffers it now, and he does so due to the effects of his impaired function to his right shoulder.
Swimming
33 He deposed that he used to swim laps for exercise, but cannot any longer do so, because swimming brings with it increased shoulder pain.[27] In terms of his swimming, something of it has been retained. He was questioned about it by the defendant. However, as his evidence revealed, it is a rather desultory remnant of his former swimming of laps.[28]
[27]Exhibit P1, Affidavit, paragraph [21] and Further Affidavit, paragraph [23]
[28]T17-18
Golf
34 The plaintiff said he was a keen golfer and in his further affidavit deposed that he had “been unable to return to playing golf”.[29] He deposed that he played golf regularly and that he loved the game. He said he had intended, on retirement, to take up golf and play a few times a week and improve his game, but his right shoulder injury has taken this away from him. He said that he does not “have the range of movement and strength in my shoulder that I used to do, and I am unable to hit a golf ball properly like a used to.”[30] Under cross-examination, he said that he cannot swing a golf club but that he can swing a putter or a chipper, and then agreed to the proposition put by cross-examining counsel, that he cannot “launch one off the tee”.[31]
[29]Exhibit P1, Further Affidavit, paragraph [22], PCB 19
[30](Supra)
[31]T17
Medication
35 The medication for the plaintiff’s right shoulder is ongoing and varies between analgesic medication, such paracetamol in the guise of Codeine and Panadol, the latter taken every day or second day, and he is sometimes required to resort to Panadeine Forte. I think it is reasonable to assess the level of medication for the injury as relatively modest, but it is a constant and ongoing requirement.
Assessment
36 I think it is reasonable that whilst a list of pain consequences cannot constitute a checklist against which a certain number must exist before an impairment will fall within the range of being “serious”, nonetheless, a consideration of those consequences experienced by a plaintiff can be helpful in arriving at an appropriate judgment on the matter.[32]
[32]See Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
37 To some considerable extent, my assessment of the consequences to the plaintiff has been informed by the judgment I made of him in the course of the proceeding. I found him to be wholly credible, and not a man prone to embellishment. I assessed him as a man who has been very considerably informed by his work and by being physically engaged in his everyday life. It struck me, also, that the implications of his impairment in having forced him to moderate, or restrict, or surrender, previous activities is a thing he rails against. I am satisfied that in nearly all aspects of the plaintiff’s life the impaired function to his right shoulder affects a broad range of his activities including his sleep, his recreational activities and his enjoyment of life, and that these consequences, for him, are serious, and in my judgment, when assessed objectively in terms of range, come to be considered as satisfying the statutory test, that is, more than significant or marked, and at least very considerable. The impact of the injury on the plaintiff’s recreational activities is particularly impactful to him given the physicality of the life he led prior to his injury. Furthermore, I am satisfied that the plaintiff’s loss of capacity to continue his employment has had a significant adverse effect on his enjoyment of life and is a relevant fact in assessing his pain and suffering.[33]
[33](Supra) and Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Peak Engineering v McKenzie [2014] VSCA 67
38 I have had regard to the fact that the plaintiff’s level of pain he deposed to in relation to the right shoulder is “ongoing”, in the sense that whilst it comes and goes, it is present most of the time, and that any reaching above shoulder height or vigorous use of his right arm, quickly brings on pain.[34]
[34]Exhibit P1, First Affidavit, paragraph [17], PCB 12
39 The plaintiff was asked in cross-examination about his self-assessment of his physical pain as being “always five or six out of ten”.[35] He was then asked if he could remember having told Dr Clayton Thomas, pain specialist, whom the plaintiff saw in August 2019, that his right shoulder pain was in the order of 1-2/10. The plaintiff said he could not remember. On balance, I prefer the plaintiff’s account of pain, having listened carefully to him and assessed him as credible and forthright.
[35]T16
Summary and conclusion
40 The plaintiff was an active and vital individual who intended to remain employed, as his work was a substantial defining aspect of his self-worth, and the reason for the loss of his work was the injury and impaired function to his right shoulder. I am satisfied that the pain and suffering consequences he deposed to have been adversely impacted by his functional restrictions. I am satisfied that the injury is a serious long-term impairment. He has, therefore, satisfied me of the appropriateness of a grant of a certificate and accordingly for the reasons stated.
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