Issa v Victorian WorkCover Authority
[2019] VCC 55
•7 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-01556
| NASSER MOHAMMED-IMAN ISSA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 January 2019 | |
DATE OF JUDGMENT: | 7 February 2019 | |
CASE MAY BE CITED AS: | Issa v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 55 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the left shoulder – whether the pain and suffering consequences are serious – credit – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: O’Donnell v Reichard [1975] VR 916
Judgment: The plaintiff is granted leave to bring a proceeding for pain and suffering consequences.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram SC with Mr J Valiotis | Arnold Thomas & Becker |
| For the Defendant | Ms G J Cooper | Russell Kennedy |
HIS HONOUR:
Introduction
1 The plaintiff was employed by Costco Wholesale Australia Pty Ltd (“the employer”) as a factory worker from 24 June 2010 until his employment was terminated in January 2018. On 3 January 2014, he suffered injury to his left shoulder when he lifted a box of photocopy paper weighing about 12.5 kilograms or more.
2 The plaintiff submitted that he has suffered a permanent impairment or loss of the function of his left shoulder producing pain and suffering consequences which are “serious”.
3 Mr A Ingram SC appeared with Mr J Valiotis of counsel for the plaintiff. Ms G J Cooper of counsel appeared for the defendant.
The issues
4 The defendant conceded that the plaintiff suffered a compensable injury to his left shoulder, producing pain and suffering consequences which fall short of being serious, but might perhaps warrant the description of being significant or marked.
5 The real attack on the plaintiff’s application involved assessing the pain and suffering consequences which the plaintiff deposed to in his affidavits and about which he gave evidence orally when compared with statements he made to examining medical practitioners, the results of medical examinations by those examining medical practitioners, and their opinions of the nature and extent of the plaintiff’s left shoulder injury.
6 The conclusion I have reached is that whilst there are aspects of the plaintiff’s evidence which I do not accept, I am otherwise satisfied that his pain and suffering consequences are “serious”.
The Plaintiff’s medical evidence
7 The focus of the defendant’s attack on the plaintiff’s application does not require me to traverse all of the medical evidence in significant detail. I propose, therefore, to only provide a short summary of that medical evidence.
8 The plaintiff saw Dr Satari, general practitioner, of the Millennium Medical Centre in Footscray on 4 January 2014. The plaintiff saw a number of medical practitioners at that medical centre, including Dr Loransios, general practitioner, who provided a report dated 30 June 2018 summarising not only the treatment he provided the plaintiff, but also the treatment provided by the other medical practitioners at the medical centre.[1]
[1]Plaintiff’s Court Book (“PCB”) 33-34
9 Dr Satari noted that the plaintiff suffered sudden left shoulder pain in a lifting incident. He referred him to have an ultrasound of his left shoulder which was performed on 7 January 2014. It demonstrated a partial tear of the anterior to mid portion of the supraspinatus tendon and some other less relevant findings.[2] He was prescribed painkilling medication and was referred to physiotherapy. He was referred to have an MRI scan which was performed on 15 April 2015. It confirmed the findings evident in the ultrasound.[3]
[2]PCB 17
[3]PCB 19-20
10 The plaintiff was then referred to Mr Pullen, orthopaedic surgeon. He first saw him on 20 August 2014. Mr Pullen concluded that the plaintiff had suffered a high-grade partial and likely full thickness tear of the anterior supraspinatus fibres consistent with the findings on the MRI scan. He advised the plaintiff to undergo surgery, which was performed on 18 August 2015. Mr Pullen undertook an arthroscopic procedure which involved a subacromial decompression and a rotator cuff repair. He found a 1-centimetre almost full thickness tear of the rotator cuff which was repaired using suture anchors.[4]
[4]PCB 22-23 and 35
11 Mr Pullen reviewed the plaintiff post surgically on a number of occasions in 2015. He considered that the plaintiff had good early range of motion and with decreasing pain. He recommended at that time that he have treatment by a relevant therapist. He did not consider that he was fit for his pre-injury work, but was fit to return to work on light duties.[5]
[5]PCB 22
12 Mr Pullen also reviewed the plaintiff on a number of occasions in 2016. On 6 April 2016, the plaintiff complained to him of persistent left shoulder stiffness and pain. After further reviews he referred him to have a further ultrasound. It disclosed that the supraspinatus tendon was intact. He concluded that the source of the plaintiff’s shoulder stiffness and pain was due to muscle weakness. He encouraged him to undertake strengthening exercises.[6]
[6]PCB 26-27
13 The plaintiff continued to complain of ongoing difficulties with his left shoulder, noting persistent left shoulder weakness and pain with certain activities. Mr Pullen referred him to have a left shoulder x-ray and ultrasound which was performed on 13 July 2018. It did not demonstrate a rotator cuff tear. He did not consider that further surgery was warranted. He asked the plaintiff to consider using oral nonsteroidal anti-inflammatory medication or having a subacromial cortisone injection. The plaintiff declined to have the injection, but did use the recommended medication.[7]
[7]PCB 29-31
14 On the two occasions that Mr Pullen reviewed the plaintiff in 2018, he found restriction of movement on both active and passive motion in the plaintiff’s left shoulder. It was unclear to him what the cause of the plaintiff’s complaints of persistent left shoulder symptoms was, but it occurs to me that it is inherent in the body of his opinion expressed in his report dated 17 August 2018 that he accepted the plaintiff’s complaints as being valid.[8]
[8]PCB 29-30
15 At present the plaintiff’s treatment comprises seeing a general practitioner at the medical centre once a month and taking medication for pain relief. Under cross-examination, the plaintiff said that he usually takes two Panadol per day for pain relief. If that is insufficient then he also takes two Nurofen in the morning and two at night, and Tramadol every now and again.[9]
[9]Transcript 23-24
The Plaintiff’s claimed consequences
16 I now propose to summarise the evidence on which the plaintiff and defendant rely.
17 The plaintiff swore three affidavits on 8 December 2017,[10] 15 October 2018[11] and 27 November 2018.[12] In summary the plaintiff says that the pain and suffering consequences of the impairment of the function of his left shoulder are as follows:
[10]PCB 5-10
[11]PCB 12-16
[12]PCB 52-54. The plaintiff elaborated on some of the pain and suffering consequences under cross-examination.
· Light duties work up until he underwent surgery in August 2015.
· A return to work three months post-surgery on part-time light duties, and by early 2016, a return to full-time light duties.
· Constant unremitting pain in and around the left shoulder.
· The pain worsens with activity, for example undertaking a lot of the exercises recommended by his treating physiotherapist.
· An inability to lift the left arm as high as before injury.
· The pain is eased by the use of medication.
· Capacity to engage in tasks, such as pushing and pulling forcefully and gripping are reduced.
· Sleep is disturbed when rolling onto his left side.
· Unable to go swimming.
· Unable to play social games of soccer, both outdoor and indoor.
· Difficulty dressing and undressing, for example putting on and taking off jumpers and T-shirts.
· Difficulty using the left arm behind his back, for example when showering.
· Restricted in the use of the left arm, for example when driving and engaging in cooking and cleaning.
· Restricted in playing games with his six-year old daughter.
· Restricted to undertaking light work which does not place stress and strain on his left shoulder and arm.
· The restriction in what work he is able to undertake has resulted in reduction in gross income referred to in more detail below.
18 The following is the gross income which the plaintiff has earned from 2011 to 2018. From 2016 it included income derived from what he earned with the defendant and as an Uber driver and as a barber:
· 2011 - $64,203
· 2012 - $45,162
· 2013 - $42,521
· 2014 - $36,763
· 2015 - $34,769
· 2016 - $34,744
· 2017 - $55,147
· 2018 - $50,237.
19 The defendant was content for me to work on the basis that the plaintiff commenced working as an Uber driver in about January 2016 and drives three to four nights a week, probably from Friday to Sunday night.[13]
[13]Transcript 49-50
20 The plaintiff completed a Certificate III in hairdressing. He commenced running a barbershop in early 2016 after renting suitable premises.[14] The barbershop is open 20 hours per week over five days per week and sometimes as many as six days per week. He estimated that 97 per cent of his clientele are men of African descent.[15]
[14]Transcript 11-14
[15]Transcript 12-13
21 The plaintiff submitted his pain and suffering consequences easily meet the statutory test of seriousness. On the face of the plaintiff’s evidence alone, that would appear to be the case. He suffered a significant injury requiring surgery and has been left with a number of residual consequences of pain, the need to use medication for pain relief, restriction of movement, reduction in his capacity to pursue his chosen occupation with the employer, and otherwise there are domestic, sporting and recreational pursuits which he cannot undertake.
22 The Defendant’s Court Book index discloses that it obtained video surveillance of the plaintiff. The video surveillance was not adduced in evidence by the defendant. The plaintiff submitted that the failure to adduce that evidence should permit the drawing of an inference consistent with what was said in O’Donnell v Reichard.[16] I think the inference is open to be drawn for the purpose of more readily accepting the plaintiff’s evidence.
[16][1975] VR 916 at 930
The Defendant’s case
23 The main focus of the defendant’s attack upon the plaintiff’s case was a comparison between what the plaintiff has lost and what the plaintiff has retained. More particularly, that the plaintiff’s evidence that he suffers constant and unremitting pain, needs to use significant medication, and is capable of working in two occupations generating significant income are inconsistent with pain and suffering consequences equating with the test of seriousness.
24 The plaintiff described the chronicity of his pain as being “constant and unremitting”,[17] and being “sore and in pain all the time”.[18] Both the words “constant” and “unremitting” are synonymous, essentially meaning that the pain experienced by the plaintiff is invariable and unchanging. Neither describe the level of the pain experienced by the plaintiff.
[17]PCB 7
[18]PCB 13
25 The defendant made reference to the plaintiff’s use of the words “constant” and “unremitting” as if to suggest that it denoted the level of pain which the plaintiff was experiencing. It seemed to me that it was in that respect that statements recorded by examining medical practitioners were put to the plaintiff to suggest that he suffered a lesser level of pain than he was contending was the case.
26 I think it is a mistake to look only at the statements recorded by the examining medical practitioners when assessing the plaintiff’s evidence relevant to the level of pain he has and now experiences without also understanding the conclusions they reached based upon the histories they recorded, the radiology they were provided and their clinical examinations.
27 Mr Pullen was the first medical practitioner who recorded the plaintiff’s complaints of pain and disablement. In his last report dated 17 August 2018,[19] he recorded a history of the plaintiff’s complaints when he saw the plaintiff on 11 July 2018. On that occasion the plaintiff told him that he had ongoing problems with his left shoulder comprising pain and stiffness, pain at night and when reaching, and persistent problems with shoulder weakness.[20]
[19]PCB 29-31
[20]PCB 29
28 It was on the basis of that history and the results of a subsequent x-ray and ultrasound that Mr Pullen diagnosed that the plaintiff suffered a left shoulder impingement syndrome and near full-thickness rotator cuff tear and post-operative left shoulder pain. He considered that the plaintiff could not return to his employment with the employer, and would not be able to perform work duties which involved heavy lifting, overhead activities or repetitive activity.[21]
[21]PCB 30
29 The next medical practitioner to examine the plaintiff was Dr Barton, consultant occupational physician, who examined the plaintiff for the defendant on 22 October 2015. He recorded that the plaintiff reluctantly acknowledged some improvement following surgery. Additionally, he recorded that the plaintiff described pain around the shoulder joint area and at times into the left biceps area; limited shoulder movements, and symptoms of pain being made worse with general use and movement of his left arm.[22]
[22]DCB 8
30 Dr Barton considered that it was relevant to impose restrictions on the plaintiff’s return to work, namely, not lifting weights of more than 5 kilograms below waist height; not lifting weights of more than 2 kilograms above shoulder height, and rotation between two different duties during a normal five-hour shift. He also recommended a graduated return to work over a three-week period. He considered that the plaintiff was suffering persistent dysfunction in his left shoulder and was partially incapacitated.[23]
[23]DCB 9-10
31 The next medical practitioner to examine the plaintiff was Dr Elder, consultant specialist in occupational and environmental medicine, who examined the plaintiff on 14 June 2017. Dr Elder recorded that the plaintiff told him that he was 75 per cent better; when asked about the pain in his left shoulder he described it as “not too much; his main problem was weakness with pulling and pushing and decreased movements, and that he did not perform any tasks above head height.[24]
[24]DCB 13
32 Dr Elder also recorded that the plaintiff told him that he had returned to work performing his pre-injury hours with only a restriction for work above shoulder height. It is not clear whether Dr Elder understood that the plaintiff’s return to work was on light duties. In any event, he otherwise recorded that the plaintiff was able to perform his household chores, but otherwise was restricted in performing heavier tasks like lifting grocery bags and moving furniture when cleaning.[25]
[25]DCB 13
33 Dr Elder’s opinion is otherwise of little weight because it was directed to undertaking an impairment assessment under the AMA (Australian Medical Association) guides to the evaluation of permanent impairment.
34 The next medical practitioner to examine the plaintiff was Dr Wyatt, occupational physician, who examined the plaintiff on 21 September 2017 for the defendant. She recorded that the plaintiff told her he did not experience pain when working below shoulder height, but working above shoulder height resulted in him suffering pain. He also told her that he was able to undertake his domestic tasks and had returned to work on restricted duties.[26]
[26]DCB 49
35 Dr Wyatt was specifically asked whether the plaintiff could return to full unrestricted duties as a “stocker” with the defendant. She considered that it was a “significantly manual” job for which he was unfit because it involved carrying above shoulder height, significant lifting of weights and repetitive reaching. She considered that he would not return to a level of function that would permit him to perform the duties of the job of that kind.[27]
[27]DCB 51
36 The defendant terminated the plaintiff’s employment in January 2018. It informed him of the termination by letter dated 29 January 2018. The basis for the termination was the opinion of Dr Wyatt that the plaintiff could not return to his pre-injury duties.[28]
[28]Exhibit B
37 The next medical practitioner to examine the plaintiff was Mr Dickinson, orthopaedic surgeon, who examined the plaintiff on 12 April 2018 for the defendant. Mr Dickinson recorded that the plaintiff told him that he continued to have pain over the outer side of his left shoulder, that the pain worried him at night if he slept on his shoulder, and that any activity involving his left shoulder would cause him pain.[29]
[29]DCB 19
38 Mr Dickinson considered that the plaintiff had suffered an impingement syndrome complicated by a small supraspinatus tear. He considered that the plaintiff’s symptoms were mild and did not restrict his activities, which I assume means both his activities of daily living and his capacity to pursue unrestricted employment.[30]
[30]DCB 21-22
39 The next medical practitioner to examine the plaintiff was Dr Bones, consultant occupational physician, who examined the plaintiff on 10 August 2018. Dr Bones recorded that the plaintiff told her that his left shoulder is now about 80 per cent. I assume that means a rate of recovery, bringing him to 80 per cent of what his left shoulder was like before injury. She also recorded that he said that he is pain free when sitting, but if he rushes or reaches his left arm across his body or above his shoulder, that he will experience some pain on the superior aspect of his left shoulder.[31]
[31]DCB 27
40 Dr Bones accepted that the plaintiff had suffered a significant rotator cuff tear. She considered that the plaintiff’s complaints of pain and restriction of movement incapacitated him for his pre-injury employment with the employer; however, she considered that he was fit for suitable employment.[32] She was subsequently provided with a report proposing that the plaintiff was fit for four types of suitable employment. She considered that he was fit for those types employment because they did not require any significant manual handling or use of the plaintiff’s left arm above shoulder height.[33]
[32]PCB 29-31
[33]PCB 37-39
41 The next medical practitioner to examine the plaintiff was Mr Chehata, orthopaedic surgeon, who examined the plaintiff on 3 July 2018 for the plaintiff. He recorded that the plaintiff told him that he returned to work on light duties, was unable to lift overhead or perform the tasks involved in his pre-injury duties, and required increasing doses of analgesics. He recorded that the plaintiff was using Panadol, Nurofen, Endone, Maxigesic, Tramadol and anti-inflammatory gels.[34]
[34]PCB 38
42 Mr Chehata was under the misapprehension that the plaintiff was using opioids at high levels. I will return to the issue of the plaintiff’s use of medication later; however, it appears to have influenced his conclusion that the plaintiff was incapacitated for work as an unskilled labourer and that he would be precluded from engaging in recreational activities such as soccer, swimming and running.[35]
[35]PCB 40
43 The last medical practitioner to examine the plaintiff was Dr Kennedy, sports and industrial physician, who examined the plaintiff on 17 July 2018 for the plaintiff. He recorded that the plaintiff told him that he had aching and discomfort, particularly in cold weather, sometimes problems lying on his left side, problems reaching and stretching out with his left arm, and problems with activities involving repetitive use of his left arm.[36]
[36]PCB 45
44 Dr Kennedy accepted that the plaintiff continued to experience problems with his left shoulder, restricting the use of his left shoulder both in terms of work and social, domestic and recreational activities, particularly where he engaged in repetitive use of his left arm and above shoulder height.[37]
[37]PCB 46
Conclusions
45 The evidence very clearly discloses that the plaintiff suffered the injury to his left shoulder described by Mr Pullen. Additionally, all of the other medical practitioners who have examined the plaintiff agree with his diagnosis, and appear to agree that the plaintiff required surgical amelioration of the rotator cuff.
46 Furthermore, there appears to be almost complete harmony amongst all of the examining medical practitioners, save for Mr Dickinson, that the plaintiff has an actively symptomatic left shoulder which precludes him from returning to his pre-injury work with the employer, or in like work.
47 I accept the plaintiff’s evidence that he has left shoulder pain which would be fair to describe as constant even though sitting with his left shoulder in a static position is more comfortable and relatively painless. I accept the plaintiff’s evidence that even though that position might provide him relief from the pain, he otherwise experiences pain 90 per cent of the time.[38]
[38]Transcript 23
48 I do not accept the plaintiff’s evidence that he has not made some level of recovery after the surgery. I think it is evident from the fact that he was able to continue performing work on light duties with the employer, and work as an Uber driver and as a barber point to him having a capacity to function at a particular level despite the deficits produced by the impairment of the function of his left shoulder.
49 The plaintiff’s reference to his use of Tramadol in his second affidavit, and the history he gave to Mr Chehata of his use of opioids is wrong. It is difficult to accept that he referred to that degree of use inadvertently or by mistake; however, I accept his evidence that he is using over-the-counter medication reasonably frequently, and Tramadol every now and then.
50 The defendant submitted that if I weigh into consideration what the plaintiff has retained as part of a balancing exercise then that should militate against a finding that the pain and suffering consequences of the impairment of function of his left shoulder are not “serious”. In particular, the defendant submitted that the plaintiff is having very little medical treatment. He does not require any further surgical treatment. He is taking over-the-counter medication and not heavier analgesic and anti-inflammatory medication. He has retained the capacity to undertake his ordinary domestic routine and his relationship with his six-year old daughter. He is able to work as an Uber driver and as a barber.
51 The defendant emphasised the fact that the plaintiff is able to work and is able to earn a gross income of some significance. Whilst that is so, I do not accept that the work he is presently undertaking is anywhere near as physically onerous as the work he undertook with the employer. Driving a car is not something any medical practitioner suggested the plaintiff cannot do, and 95 per cent of his hairdressing work is performed with his right hand, requiring little involvement of his left hand.
52 I think the fact that the plaintiff is able to work in suitable or alternative work is one factor amongst many others to be taken into account in determining whether the pain and suffering consequences are “serious”. It occurs to me that what he is doing is very light work. The quantum of his earnings are not indicative of the nature of the work he is undertaking and the extent to which he might bring his left shoulder into play in performing that work.
53 I repeat the earlier conclusion which I reached, that I consider that the plaintiff’s pain and suffering consequences are “serious”. I accept the plaintiff’s evidence that he has each of the pain and suffering consequences which I have summarised above. I think, when the relevant comparison with other impairments is made, that the pain and suffering consequences of the impairment of the function of his left shoulder are “serious”.
Orders
54 For the reasons set out above, I propose to grant the plaintiff leave to bring a proceeding at common law to recover damages for the pain and suffering consequences of the impairment of the function of his left shoulder.
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