Jafari v Glenn-Craig Villages Pty Ltd
[2012] VCC 1163
•16 August 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04422
| MINOO JAFARI | Plaintiff |
| v | |
| GLENN-CRAIG VILLAGES PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 August 2012 | |
DATE OF JUDGMENT: | 16 August 2012 | |
CASE MAY BE CITED AS: | Jafari v Glenn-Craig Villages Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1163 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to left shoulder – pain and suffering damages only
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
JUDGMENT – Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Nettlefold | Ryan Carlisle Thomas |
| For the Defendants | Mr S Jurica | Hall & Wilcox |
HIS HONOUR:
1
The plaintiff claims to have suffered significant injury to her left shoulder in the course of her employment with the first defendant over the period from
when she commenced her employment in June 2006 until October 2007. As a result, she alleges she has suffered a range of consequences with respect to her social, domestic and recreational activities, which has required treatment, including surgery, injections and hydrodilatation.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment from June 2006 until October 2007. The body function said to be lost or impaired is the left shoulder. The application is thus brought under ss(a) of the definition of serious injury contained in s134AB(37) of the Act, and leave is sought in respect of pain and suffering only.
3 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, two affidavits of the plaintiff, medical reports, radiological reports and other material was tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all the evidence of the plaintiff, but those parts of her evidence which I have relied upon in coming to the conclusions referred to later in this judgment.
4 The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known, and it is unnecessary for me to revisit the various relevant sections.
Relevant Background
5 The plaintiff was born in Iran in 1961 and is now fifty-one years of age. She is married with a son. She came to Australia in 2000. Her husband had heart surgery, and over the years 2000 to 2006, she looked after him and her son. She studied and completed an English language course. She commenced working for the first defendant at an aged care facility in Berwick, working approximately 15 to 20 hours per week.
6 I accept the plaintiff's evidence that aspects of her work were heavy, including carrying heavy trays, soup pots, some measuring one to two feet in dimension, and other heavy kitchen objects. The work was also repetitive, and she and another kitchen hand were required to serve approximately fifty patients a day.
7 Before injury, the plaintiff had a particular interest in gardening, and undertook all aspects of her housework. She generally enjoyed a full life with her family. It was put to her in cross-examination that she had been to a general practitioner in about 2002, and possibly beyond, for shoulder pain, although the reference in the general practitioner's notes did not refer to which shoulder.
8 There were no notes tendered into evidence and no medical opinion in respect of that earlier shoulder pain. The plaintiff, in cross-examination, could not recall any detail of it. I am satisfied that that or those episodes of shoulder pain are not of any significance. I accept that generally the plaintiff was in good health over the period 2006-2007, and in particular, had no problems with the left shoulder, and was able to work without difficulty prior to her injury.
The Injury and its Consequences
9
Over several months before July 2006, the plaintiff commenced to
feel pain in her left arm and neck. She started taking
pain-relieving medication. The pain increased in July 2007 and she went to see her general practitioner, Dr Ferdousian. She prescribed anti-inflammatory medication and referred the plaintiff for physiotherapy. The pain continued in her left shoulder, left arm and her neck, and increased. A WorkCover claim was lodged in December 2007 and accepted by the insurer.
10 The problems continued and she had time off work over various periods in 2007 and 2008. In 2008, she was referred to the Epworth Hospital Rehabilitation Unit at Dandenong for a rehabilitation program, but was unable to complete that, because at the time she also had pain which had developed in her right shoulder as well as her left, and as a result, she could not complete the tasks required of the program. I accept her evidence that she discussed the matter with her general practitioner, and that practitioner accepted that she should not proceed with the course.
11 In November 2007, she was referred to Mr Chris Pullen, orthopaedic surgeon. In his report,[1] he noted when he saw her that a CT scan of her cervical and thoracic spine had been undertaken. That showed multilevel disc degeneration with a broad-based disc bulge at C5-6 and some compression of the exiting nerve root. He further noted that the plaintiff had undergone a left shoulder ultrasound of 26 October 2007, which was reported as showing a full thickness tear of the supraspinatus tendon over a 1 x 1.7 centimetre area.
[1]Plaintiff’s Court Book (“PCB”) 54
12 He received a history from her that she was having significant problems with pain in her left shoulder, and that that had been ongoing for the last three or four months, and was due to heavy lifting at work. He noted that she was taking Mobic, an anti-inflammatory, and analgesics. He noted pins and needles into her left hand.
13 He concluded that it was likely the plaintiff was having problems with a left shoulder rotator cuff tear, which was likely to be contributing to her left shoulder pain and a restriction in a range of movement. He arranged for her to undertake an MRI scan of her cervical spine in January of 2008, which showed exit foraminal stenosis at C5-6 with effect upon the C6 nerve root.
14 The plaintiff also underwent a left shoulder MRI scan in January 2008, which showed the full thickness tear of the supraspinatus tendon, and what was described as showing a down sloping of the acromion, thought to contribute to the impingement. There was further evidence of a Type II slap lesion and a partial thickness tear of the proximal portion of the biceps tendon.
15 Mr Pullen reviewed the plaintiff in January 2008 and noted that there had been some improvement in the symptoms. In a discussion with the plaintiff about the prospects of surgery, noted that she wished to proceed with conservative measures and not surgery. The plaintiff did not return for further review with Mr Pullen.
16 She continued to see her general practitioner, Dr Ferdousian, and was certified as fit for no heavy work. She also referred the plaintiff for massage, hydrotherapy and physiotherapy. The physiotherapy has continued on and off until recent times; although I accept that the physiotherapy is in respect of a range of conditions including to her back, her neck, her right shoulder and her left shoulder.
17 In February 2009, the plaintiff was referred to Mr Martin Richardson, orthopaedic surgeon, for his second opinion. That practitioner has treated the plaintiff through until 2011. When he first saw her in February 2009, the plaintiff complained that her left shoulder was now causing more trouble than the right, although both shoulders were problematic.
18 He noted the radiological investigations which had been undertaken, and the full thickness 10 millimetre x 17 millimetre tear of the supraspinatus tendon on the left side. He further noted significant bursitis to the right side. He also noted the MRI scan in respect of the cervical spine.
19 At that time, he injected the subacromial space with local anaesthetic and reviewed the plaintiff after a month. Even at that early stage, he determined that it was likely the plaintiff would have to undergo subacromial decompression surgery. He reviewed the plaintiff again in October 2009, and she said the shoulder had been good since the injection which had been performed earlier in the year. He again injected the same area and asked her to return for a review.
20 He reviewed her again in February 2010. He recommended to the plaintiff she should undergo left shoulder surgery. That was undertaken at the Epworth Hospital on 4 May 2010 by way of arthroscopy. Surgical assessment revealed that the plaintiff indeed had a moderate full-size thickness rotator cuff tear over the supraspinatus tendon. He also noted significant bursitis and a large subacromial spur. He performed an acromioplasty and a bursectomy, and repaired the rotator cuff.
21 Upon review subsequently in July 2010, Mr Richardson noted the plaintiff had complained of increasing pain and stiffness in the shoulder, which he thought might be post-operative capsulitis. In September 2010, he performed a hydrodilatation of the shoulder, and recommended ongoing physiotherapy. He also arranged a further ultrasound-guided injection of steroid.
22 When he reviewed the plaintiff in February 2011, he received a history that the shoulder was going well in terms of the range of movement and strength, although noted ongoing pain in the area. When he finally saw the plaintiff in October 2011, she reported an ongoing pain in her neck and left shoulder region. He noted she had a good range of movement in the shoulder, and recommended some chiropractic treatment. He said there was no further surgical treatment recommended in respect of the left shoulder.
23 Over the period through to the present, the plaintiff has continued to consult her general practitioner for a range of problems, including the left shoulder, her neck and right shoulder. She described to the general practitioner that the left shoulder was the worst of the problems. Her current medication includes Tramal for pain, one to two per day on an as needs basis; Panamax, a store bought pain-relieving medication, up to six a day; Effexor for depression and Nexium for stomach problems. She is on other medications from time to time which have been changed because of the ongoing stomach problems.
24 The plaintiff became depressed and anxious as a result of a range of injuries and other matters in her life, and has consulted a psychologist, Dr Kavianpour, since April 2011. That practitioner has provided cognitive behaviour therapy and strategies through to the present time.
25 A report was provided by the defendants’ consultant psychiatrist, Professor Ivor Jones, as of October 2009. In relation to the plaintiff's psychological and psychiatric statement, Dr Jones stated that although the plaintiff had anxiety and unhappiness, he thought that these were related in part to independent family problems, and a concern about her wellbeing and future in addition to her physical problems. He did not find the symptoms constituted any formal DSM-IV diagnosis.
26 According to the plaintiff's affidavit, the consequences that have resulted from the left shoulder injury are:
· constant left shoulder pain, aggravated by day-to-day activities
· a reduction in her gardening activities which she says she is only able to undertake lighter activities
· she said that the repetitive use of her left arm aggravates the problem; she claims that her sleep is affected, particularly when she turns on her shoulder which results in her waking up. She said in evidence that she has not had proper sleep since injuring her left shoulder.
27 Further, she says that she has a reduced ability to do the heavier aspects of her housework. However, in cross-examination, she admitted that she did drive a car for distances up to 45 minutes. She was able to carry out a range of domestic duties, including cooking, although not using heavier pots; washing dishes, shopping. She said that she had difficulties in lifting her left arm at and above shoulder level, and she had suffered a loss of enjoyment in not being able to work, and financial stress which had followed. She said that she had applied for various jobs.
28 She said that she accepted that the surgery performed by Mr Richardson and the other procedures undertaken had helped her left shoulder problems but had not relieved the pain. She accepted that as a result of those treatments, she had a reasonable range of movement in the left shoulder, and increased strength.
The Plaintiff's Credibility.
29 I had the opportunity to observe the plaintiff in cross-examination. She struck me as an honest witness making reasonable concessions and giving a fair account of her injury to the left shoulder, and its consequences. She accepted matters in cross-examination which I would have expected of an honest witness, including that she was able to use her left arm for a range of activities, including shopping and domestic chores.
30 Video surveillance of the plaintiff was shown covering the dates 29 July 2011, 9 August 2011 and 8 September 2011. This showed the plaintiff undertaking an unremarkable range of activities, including driving a motor vehicle, walking whilst swinging her left arm in an unimpeded manner, carrying a handbag on her left hand, opening and closing car doors, and for a brief period in a shopping centre, selecting items from a shelf with her left hand. However, in my view, the use of the hands was predominantly the right arm and not the left.
31 None of the activities depicted were inconsistent with the plaintiff's evidence nor the matters raised in her affidavit. If anything, in my view, what was depicted was quite consistent with that evidence. The video surveillance had no effect upon the plaintiff's credibility.
32 I reject the opinion of Dr Littlejohn to which I will refer, and Dr Fraser about their interpretation of the video, although I accept that their interpretation would depend upon their findings upon a physical examination. I further note the reference in the report of the defendants’ psychiatrist, Dr Jones,[2] that he found nothing inconsistent with what was depicted on the video with the complaints of the plaintiff.
[2]Defendants’ Court Book (“DCB”) 32
33 All in all I found the plaintiff to be a credible witness, and as a result I accept her complaints of pain and restriction in relation to her left shoulder as set forth in her affidavit, in her evidence and in the histories to the doctors.
Medical Opinions
34 I shall not refer to all of the opinions, in particular those which are outdated and of little assistance. I was impressed with the reports of the plaintiff's treating general practitioner, Dr Ferdousian, who has treated her over a long period of time.
35 According to that doctor, she noted in the most recent report of 9 May 2012 that although the plaintiff's range of movements in her left shoulder had improved following the shoulder surgery, and after physiotherapy, she said that the plaintiff still remained restricted in performing a range of tasks involving lifting, pulling, pushing, and carrying, all due to pain.
36 The doctor said that the plaintiff's left shoulder pain had affected her social and domestic activities, including vacuuming, shopping, driving and doing the laundry. She said that so far the pain in the plaintiff's left shoulder had not improved much, despite the extensive physiotherapy, surgery and chiropractic treatment, and she did not think that the physiotherapy or chiropractic treatment would be of any further benefit.
37 She said that the prognosis in respect of the plaintiff's left shoulder remained uncertain. She said that it depended upon a number of factors, including psychological factors, as well as her response to any further treatment.
38 I have referred to the opinion of Mr Richardson, and noted on his final attendance that he accepted the plaintiff had ongoing pain in the left shoulder, although with a good range of movement. He indicated that there were no further surgical procedures contemplated.
39 The plaintiff was examined on two occasions by Mr Stephen Doig, orthopaedic surgeon. He accepted in his first report of 4 April 2011 that the plaintiff had the onset of a shoulder injury by reason of a gradual process at her work. He noted the pain was specifically around her left shoulder. He said that he work was a significant contributing factor to the situation, and noted the radiology showed a full-thickness tear of the rotator cuff, properly treated by surgical repair.
40 He said the following:
“Unfortunately there is an ultrasound report which was done whilst the patient was being injected with some local anaesthetic and steroid to try to settle down postoperative pain, which indicates there may be a recurrent or residual full thickness tear still present.”
41 He accepted that the plaintiff was significantly restricted in relation to a range of activities, including lifting, pushing, pulling or carrying; particularly in the way that she had described she was able to do those activities beforehand. He said that the plaintiff did not have the ability to perform her pre-injury duties, but did have the capacity for sedentary work.
42 He suggested that she undergo further investigation in respect of the rotator cuff tear. He noted the history that she said she found it difficult to do the shopping and gardening. He said that it was possible that the plaintiff could require further surgery in the left shoulder, and that the prognosis was only moderate.
43 In his final report of February 2010, he noted the plaintiff complained of ongoing pain in the left shoulder which was waking her up at night. He noted further, that the plaintiff had been referred to the Neurosurgery Department of The Royal Melbourne Hospital, but that she was on a waiting list and had not yet been seen. In the course of her evidence, the plaintiff was unable to explain whether this was for her neck or for her left shoulder problems.
44 Mr Doig determined that the plaintiff's position was essentially unchanged from the previous report. He said that the surgery had provided some relief, but had not cured the problem and that the plaintiff continued to have ongoing pain and disability in the shoulder. He noted there had been no follow up in terms of further investigation of the shoulder.
45 He said it was likely that her shoulder problem would restrict her social, domestic and recreational activities. He agreed with some of the opinions formed by Dr Littlejohn, the rheumatologist, who examined the plaintiff for the defendants, but was unable to comment on whether the plaintiff was suffering from a fibromyalgia syndrome. He disagreed with that doctor that the plaintiff had the capacity for pre-injury employment.
46 In terms of the further investigation suggested by Mr Doig, I note there have been no further radiological investigations of the plaintiff's left shoulder. Notwithstanding his view as to the possibility of a further or unrelated tear to the tendons of the left shoulder, there is not sufficient evidence for me to accept there may be such a tear in the tendon.
47 In terms of the practitioners who examined the plaintiff on behalf of the defendants, principally they are Dr Geoffrey Littlejohn, Associate Professor, practising as a rheumatologist; and Dr Kevin Fraser, rheumatologist. Dr Littlejohn saw the plaintiff on three occasions in October 2009, August 2011 and July 2012. Dr Fraser saw the plaintiff once in June 2012.
48 When he first examined the plaintiff in October 2009, Dr Littlejohn said that both shoulders exhibited normal range of motion with some discomfort on abduction and internal rotation, but achieving normal range. He said that she was tender in the shoulder girdle and the base of the neck, both front and back of the chest, all.
49 In that report, and despite what seems to be a fairly uneventful physical examination of the shoulders, Dr Littlejohn determined that the plaintiff was suffering a Chronic Pain Syndrome in both upper limbs, which he said was characterised by widespread pain, tenderness and muscle restriction in the region, but without neurological or obvious cause. He accepted that there was degenerative disease of both rotator cuff mechanisms.
50 He suggested that a psychiatrist be retained in order to examine psychological factors and the plaintiff's pain syndrome. Despite what seemed to be a fairly standard physical investigation of the shoulders, he said that there was functional overlay, some exaggeration and other psychosomatic factors contributing to her pain problem. It is difficult to determine from this and subsequent reports, the basis of such a finding.
51 He examined the plaintiff again in August 2011. In that report he diagnosed the plaintiff as suffering fibromyalgia, which he said complied with the classification of the American College of Rheumatology, characterised by widespread pain and abnormal tenderness to gentle pressure through the body, together with poor quality sleep, fatigue, cognitive dysfunction and emotional distress. He said that he was unable to link that fibromyalgia to the plaintiff's work activities.
52 In his final report of July 2012, on examination, he said that the plaintiff believed that she did have a genuine persisting Chronic Pain Syndrome as the basis of her ongoing complaints of pain in the left shoulder. And he said that those symptoms can fluctuate in intensity according to a patient's wellbeing.
53 He again diagnosed the plaintiff as suffering fibromyalgia, and said that he believed her ongoing pain and symptoms related to that diagnosis and its “psychosocial triggers”. He said her pain and restrictions were consistent also with a Chronic Pain Syndrome; that is, her fibromyalgia. He said the prognosis for improvement was poor.
54 In his report of 21 June 2012, Dr Fraser said he was not convinced the plaintiff had any ongoing work-related injury to any part of her body. He accepted that she probably had bilateral chronic rotator cuff degeneration, and he said that this along with constitutional factors, may explain the supraspinatus tear on the left side. Although he said he could not exclude that heavy work in the course of her employment was a significant contributing factor.
55 By the time he examined her, he said that her complaints of left shoulder pain did not match the range of movements which were equal on the right and left side, although he accepted that the plaintiff did suffer residual discomfort and incapacity. However, he said that there was an overreaction on physical examination which suggested exaggeration, as a result of which he said it was difficult to assess her true incapacity. He also said that the plaintiff's prognosis was poor.
56 In considering these various medical opinions, I prefer the opinion of the plaintiff's treating practitioners, her general practitioner and Mr Richardson, and in addition, the orthopaedic consultant practitioner, Mr Doig. I prefer their opinions to that of Dr Littlejohn and Dr Fraser for the following reasons.
57 Firstly, I was unimpressed with the reports of Dr Littlejohn, who had made a diagnosis of a Pain Syndrome before surgery was carried out in 2010, and then he seemed to be reluctant to attribute any pain to what was a clear pathology shown on the investigations.
58 Further, he gave little detail as to the basis upon which he determined the plaintiff was suffering a Chronic Pain Syndrome.
59
That finding and the finding of fibromyalgia are different to all of the other physical doctors, even those earlier retained by the defendants, including
Dr Wyatt, Mr Hooper, Mr Kierce and Mr Shannon. He is the only practitioner to diagnose fibromyalgia.
60 Both Dr Fraser and Dr Littlejohn were influenced by the video shown to them, and the reports of that video. I saw nothing inconsistent in the plaintiff's explanation of her injury and its consequences to that shown on the surveillance film, although I accept that much would have to be determined by the physical examination by those practitioners. Nonetheless, in my view, there was no proper basis to make the conclusions those doctors did from the video.
61 The issue to be determined in this case as to the nature and extent of the plaintiff's left shoulder condition lies more in the realm of orthopaedic surgery than in rheumatology, particularly as to the underlying pathology, its surgical repair and prospects for rehabilitation.
62 I prefer, as I have stated, the opinion of the plaintiff's treating practitioners, particularly her general practitioner and Mr Richardson.
Disentangling
63 There is some evidence of psychological symptoms in the plaintiff's presentation according to the medical reports, although I am not satisfied they are significant. I am not satisfied that her complaints of pain in the left shoulder are significantly affected by any psychological underlying problems.
64 I accept that the plaintiff has suffered a neck condition and that that itself has led to pain and restriction in her neck, and referred tingling into her hands. That is probably the reason that she has been referred to the Neurosurgery Department at The Royal Melbourne Hospital, but that is yet to be seen.
65 However, I am satisfied that the most significant injury confirmed by underlying pathology is that to her left shoulder. I am satisfied that I can make an assessment of the plaintiff's pain and incapacity in respect of the shoulder alone.
Conclusions
66 I am satisfied that the plaintiff has suffered pain and disability in her left shoulder as a result of the work-related heavy activities over the period from 2006 to 2007. I am satisfied that she has had a range of conservative treatment, including physiotherapy, hydrotherapy, massage, chiropractic therapy, and has ingested significant quantities of medication through to the present time.
67 I am also satisfied that the underlying injury has required extensive intervention, including arthroscopic surgery to repair what was or is a clear full thickness tear to the supraspinatus tendon, together with acromioplasty and bursectomy. Further, she has had a range of injections into the left shoulder joint, and more recently a hydrodilatation procedure.
68 Despite all of this treatment, I accept that the plaintiff suffers significant pain and restriction in the left shoulder, and a restriction in the heavier activities, including domestic and recreational activities; although I accept that the surgery that she has undergone and the other treatment, has led to an increased range of movement and strength in the left shoulder.
69 In submissions, Mr Jurica said that the plaintiff has a capacity for a wide range of activities, not significantly dissimilar to those she enjoyed before injury. He referred to the fact that she was able to drive, shop and carry out a range of domestic duties, including washing, cooking and cleaning.
70 The real issue, in my view, is whether, compared with the range of injuries coming before the courts, to consider whether the consequences of the shoulder injury to the plaintiff, when viewed objectively, could be considered very considerable and more than significant or marked.
71 I bear in mind the plaintiff's evidence:
· as to her ongoing pain in the shoulder joint;
· the restrictions of use, in particular, as repetitive use or the carrying of heavier items;
· the effect upon her of her sleep disturbance;
· the need to take medication and its consequences.
72 Taking all these matters into consideration, I am satisfied that the consequences to the plaintiff do reach the very considerable level.
73 The plaintiff's application succeeds. I shall grant leave for the plaintiff to bring common law proceedings.
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