Joly v Reid Brothers Timber Pty Ltd
[2012] VCC 1693
•26 June 2012
| IN THE COUNTY COURT OF VICTORIA | (Un) Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-11-01233
| JOHN JOLY | Plaintiff |
| v | |
| REID BROTHERS TIMBER PTY LTD | First Defendant |
| -and- | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2012 | |
DATE OF JUDGMENT: | 26 June 2012 | |
CASE MAY BE CITED AS: | Joly v Reid Brothers Timber Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1693 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation; Application for leave pursuant to s134AB Accident Compensation Act 1985 paragraph (a) of serious injury definition; injury to right shoulder resulting in the impairment of function of the right shoulder and right upper limb; return to pre-injury employment; whether consequences of injury were at least very considerable.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B. Anderson | Slater & Gordon |
| For the Defendant | Mr B. McKenzie | Thomsons Lawyers |
HIS HONOUR:
Background
1 Mr Joly is aged 60 years and has worked throughout his life in his trade as fitter and turner. He migrated to Australia in 1975, working for a variety of employers as a fitter and turner. From 1992 to 2000 he resided in his native France. Once again, he worked at that time as a fitter and turner. He had a hip replacement in 1989 which required “revision” while he was in France in 1997. In 2000, back in Australia, he was working for Marven Poultry. In the course of welding he suffered some burns to his eyes. On 9 April 2001, again while working for Marven Poultry he suffered an injury to his back while he was lifting a heavy curtain. In September 2002 he suffered an injury to his right shoulder when a spark flew up his sleeve. He received treatment from his general practitioner, Dr Kerwin, returning to work on 23 September 2002, performing his normal duties.
2 In January 2003, he began work with the first defendant, Reid Brothers Timber Pty Ltd which carried on business as a saw mill. His normal working week was 38 hours, though he was accustomed to do overtime sometimes up to 17 hours per week.
3 In an affidavit sworn in this proceeding he described an accident which he suffered at work on 18 May 2009. The affidavit stated:
“I was drilling holes in a very heavy round metal plate, approximately 600mm in diameter by 12mm thick and weighed approximately 50 kilograms. I was drilling the holes on a milling machine. The table of the milling machine was very narrow. I could only drill one hole at a time and I had to move the round metal plate around so that I could drill the next hole. The round heavy steel was much bigger than the table of the milling machine. As I turned the round steel so that I could drill the next hole, it slid a little and then started to fall. I tried to catch it but when I did I hurt my right shoulder. I believe that if I had not tried to stop the plate, it would have fallen on my foot.”
4 He consulted Dr Kerwin for his injury and was referred to orthopaedic surgeon Francis R Lyons, who performed a rotator cuff repair and acromioplasty. He was an inpatient for some four days while this procedure was carried out. He received medication and physiotherapy. He was off work from 18 May 2009 to 4 October 2009.
5 Mr Joly then returned to work on restricted duties, starting with 20 hours then 25, then 28, eventually returning to 38 hours. He said he was performing lighter duties “and my co-workers had to help me perform certain duties.” He said on return to work he had experienced difficulties using a hammer or other vibrating machinery which he said “really hurt my right shoulder.” He said he had difficulty lifting his right arm over his shoulder and could not put his right arm behind his back. He said this meant that he required help with work all the time “to perform moderate duties”. He said he was unable to lift heavy weights and perform his usual duties. Hammering or lifting weights “or anything that vibrates causes further stress and strain and pain in my right shoulder.” He said he had difficulty combing his hair. He said he has to take Digesics as a pain killer.
6 Before the accident he loved his garden and did a lot of work in it. He said he is now able to do some minimal gardening work but has difficulty pruning, digging or doing any heavy work. He said he has difficulty driving and has to stop if he drives long distances.
7 Mr Joly complains that he suffers “constant pain” in his right shoulder. This pain is “worse with activity”. The more he uses the right shoulder the worse the pain gets. He says his shoulder movements continue to be restricted and he struggles to move his arm above shoulder height, “and it hurts when I do this”. He says he continues to be unable to put his right arm behind his back. He now takes Digesic medication as painkiller during the day and “Endep” at night. He said he stopped seeing Dr Kerwin during early 2011. His reason for doing so was not entirely clear to me. He said whilst Dr Kerwin expressed the view that his shoulder was generally alright, he was nevertheless willing to prescribe Digesics.
8 Mr Joly complains that he cannot sleep on his right side and showering and combing his hair are problematic. He said he no longer mows the lawn at his home “because it vibrates through my right shoulder.” His wife mows the lawns instead.
9 Mr Joly resigned from Reid Brothers in May 2011. He said that his relationship with the principal of the company soured as a result of his Workcover claim. He was working under medical restrictions, able to get through with help from other workers, but his employer deprived him of his overtime. He was getting depressed. He and his wife decided to move to Yarrawonga. He had previously lived at Woori Yallock. The choice of Yarrawonga as his home enabled him to be close to his daughter and grandchildren. Following unemployment for four months, Mr Joly began work for a company known as MacBurnie as a fitter and turner on a full-time basis. This work is lighter than the work which he performed at Reid Brothers. He said it is mainly “button pushing.” He said he continues to have trouble with pain and needs to resort to painkillers. He said, “I now rely more on my left arm to work with tools and I rely more on mechanical lifting devices. I have to protect my right arm at all times.”
10 Mr Joly seeks leaves pursuant to s.134AB of the Accident Compensation Act 1985 to bring a claim for damages against his employer.
Legal considerations
11 Section 134AB of the Accident Compensation Act restricts the ability of a plaintiff to bring a damages claim for injury occurring in the circumstances described here. Mr Joly seeks leave to bring his damages claim pursuant to s.134AB(16)(b) of the Accident Compensation Act. Section 134AB(37) defines serious injury as follows:
“ …
serious injury means—
(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.”
12 In this instance Mr Joly relies solely on paragraph (a) of the definition. Considering the operation of that definition it is appropriate to consider the following paragraph forming part of s.134AB(38):
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c)an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;”
13 The assessment of whether a serious injury has been sustained is to be made at the time of hearing this application – s.134AB(38)(j).
14 Where a plaintiff demonstrates stoicism, that is, a willingness “to put up with his pain and suffering and get on with his business as best he can”. “It would be unfortunate, and … wrongheaded if … such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injuries.” Dwyer v Calco Timbers Pty Ltd No.2 [2008] VSCA 260 [3] per Nettle JA.
Plaintiff’s case
15 For the purposes of this proceeding, Mr Joly relies on the following injury:
“Injury to the right shoulder and right upper limb, specifically a full thickness tear of the right supraspinatus requiring surgical repair, adhesive capsulitis, rotator cuff impingement, suprascapular and infrascapular muscle wastage, and development of osteoarthritic disease resulting in the impairment of function of the right shoulder and right upper limb.”
Through his counsel he contends that he has been affected by the following consequences:
(a)a damaged and deficient right shoulder with persisting subacromial bursitis, a deficiency in the rotator cuff and most likely, adhesive capsulitis;
(b)constant pain in the right shoulder with episodes of intense burning pain every two or three days (and requiring prescribed painkilling medication) and worsening pain with activity and during the course of the day;
(c)reduced shoulder function with restricted movements, in particular above shoulder height and with internal and external rotation;
(d)wasting of the right shoulder muscles and loss of strength in the right arm;
(e)ongoing restrictions which related to both work and everyday life and in particular –
·Inability to lift heavy items
·Difficulty with sleep
·Difficulty with certain everyday tasks such as showering, combing, putting on shirts and jumpers, opening jars, changing light bulbs, driving a car
·Reduced ability to undertake main passion of gardening and can no longer mow lawn and do heavy digging and lifting
·Less active and less fun.
Experts’ opinions
16 Dr Francis R Lyons, orthopaedic surgeon, undertook the shoulder surgery following Mr Joly’s accident. In a report to the Workcover insurer dated 11 June 2009, Mr Lyons noted that Mr Joly was referred to him for treatment with respect of symptoms affecting his right shoulder following a work injury. He said:
“He has symptoms and clinical findings consistent with a diagnosis of the rotator cuff tendon tear in his right shoulder. There is also evidence of subacromial bursitis.”
17 Mr Lyons sought consent from the insurer and acceptance of liability of reasonable medical costs associated with the surgery. A report from Vimy Private Hospital in Kew, described the surgery which was conducted on 24 June 2009. The operation was carried out under general anaesthesia:
“In a semi-sitting position with the head on a neurosurgical head support. The right shoulder and arm were prepared and draped free.”
The report observed:
“Moderate spurring of the acromion.”
And continued:
“The subacromial bursa was opened to reveal an excess of fluid and marked thickening of the bursa. An acromioplasty was performed. Thickened portions of the acromial bursa were resected. Inspection of the rotator cuff revealed an almost full thickness tear of the supraspinatus tendon insertion. A few deeper fibres remained intact but the upper surface of the supraspinatus was ragged and retracted. This required debridement to prevent the tissue catching under the acromion. The remaining rotator cuff tissue and the long head of (the) biceps tendon were in good condition … Subcutaneous tissue was repaired with interrupted 2.0 Vicryl and the skin was closed with continuous subcuticular Prolene and Steristrips.”
18 Dr Kerwin of the Woori Yallock Medical Centre had been Mr Joly’s primary care giver. As noted above, Mr Joly ultimately parted company with Dr Kerwin. By letter dated 25 November 2010, Dr Kerwin certified to the Workcover insurer that Mr Joly “still requires analgesic [Digesic or Panadeine Forte] for his left [sic scil right] shoulder injury.”
19 In a further letter dated 20 December 2010 the doctor reported an attendance by Mr Joly for right shoulder pain on 24 November 2010. He recorded that Mr Joly “complained of ongoing pain resulting from his workplace injury of 18/05/09 … He may need to use occasional (my emphasis) analgesics for his shoulder pain indefinitely.”
20 In a report dated 4 November 2010 to Mr Joly’s solicitors, Dr Kerwin recited the history including the surgery carried out by Mr Lyons in June 2009. He noted:
“Mr Joly was seen on 31/07/10 and 9/10/09 and 27/01/10 post operatively at this surgery. He required Digesic as an analgesic and proceeded well with rehabilitation.”
Dr Kerwin said that there was:
“no major restriction on Mr Joly’s future work capacity and he returned to his normal duties on 26/10/09 working pre-injury hours. Mr Lyons certified Mr Joly to perform full duties from 30/11/09. Mr Joly had slight discomfort of his right shoulder on lifting weights above his head. …There are no restrictions on Mr Joly’s ability to undertake his pre-injury leisure, social and domestic activities …”
21 The workers’ compensation insurer required Mr Joly to attend orthopaedic medico-legal consultant Mr Paul Kierce on 11 August 2010. In a report to the insurer of the same date, Mr Kierce first noted that his opinion was “based entirely upon (his) evaluation of objective findings identified on 11 August 2010.”
22 Mr Kierce noted that at the stage of his report, Mr Joly still worked for Reid Brothers “but is no longer able to lift with his right arm and now uses a block and tackle.”
23 Under the heading Present Complaints, Mr Kierce records:
“He is unable to lift his right arm above shoulder level. He cannot get his wallet out of his back pocket on the right side. If he uses a hammer the vibrations after about a dozen blows are too much and he cannot continue. Before his injury he used to ‘thump’ a spanner but now he has to use a long tube to help to turn nuts with a spanner.”
He recorded Mr Joly as unable to lie on his right side for long and is usually woken by pain once a night but does not suffer neck pain. According to Mr Kierce, Mr Joly:
“takes usually 2 Digesic tablets a day, sometimes up to 4.”
24 As to sport and recreation, Mr Kierce reports:
“His main recreational pursuits have included gardening and walking the dog. He is still able to do mowing of the lawn with a small mower. He is more limited in regards to what he can do in the garden because of his right shoulder pain with limitation of lifting and of any jarring such as the use of picks and shovels.”
25 On examination Mr Kierce:
“noted wasting of the suprascapular and infrascapular muscles of the right shoulder girdle.”
26 Mr Kierce found:
“No neurological abnormalities in his upper limbs.”
By way of diagnosis Mr Kierce said:
“It appears definite that Mr Joly suffered a tear of the right rotator cuff in the course of his work on 18 May 2009. He has had appropriate surgery for that injury but still has limited movement and I would be of the opinion that he has a degree of adhesive capsulitis of the right shoulder.”
27 Mr Kierce conducted an impairment assessment under the fourth edition of the AMA guides finding a 16 per cent impairment of the right upper extremity [viz the right arm], converting to a 10 per cent whole person impairment by virtue of injury to the right shoulder.
28 Mr Joly was also assessed by orthopaedic surgeon Mr Russell Miller for medico-legal purposes at the request of his solicitors on 30 May 2011. As to complaints, Mr Miller observed:
“He has pain and discomfort in the right shoulder, worse with repetitive activities and overhead activities. The symptoms fluctuate. There has been a pattern towards deterioration …”
On examination he observed:
“Minor deltoid muscle wasting.”
29 Mr Miller noted the surgery conducted in June 2009 and stated:
“He has had only a moderate result from that surgery. He has significant ongoing symptoms. Prognosis for this is only fair.”
30 As to his work capacity Mr Miller said that Mr Joly was not fit to return to pre-injury duties:
“He could not return to work that involves repetitive arm actions, use of the arms above the shoulder position, or lifting of weights of more than 5 kg. These restrictions are likely to be permanent and accident related.”
31 Mr Miller conducted a further assessment on 23 April 2012 at the request of Mr Joly’s solicitors, reporting on that assessment by letter of 27 February 2012. As to Mr Jolie’s complaints, Mr Miller records:
“He continues to have problems with the shoulder with pain and discomfort worse with repetitive activities and overhead activities. His symptoms fluctuate. He regards them as being overall much the same as when he was last reviewed by me. He does have some difficulties at work.”
Again, Mr Miller noted:
“some minor deltoid muscle wasting and some minor tenderness in the region of the acromio-clavicular joint.”
32 After referring to the injury and the repair surgery Mr Miller said:
“He does have some ongoing symptoms in the right shoulder with some reduced range of motion and some irritability. The prognosis for this is only fair.”
According to Mr Miller, conservative treatment would need to continue indefinitely. As to work capacity, Mr Miller records:
“He has not been able to return to pre-injury duties, but has returned to modified physical work and the work is now lighter … and he copes with those duties albeit with some symptoms. I believe that situation is stable and it will continue indefinitely.”
33 Mr Michael Dooley, orthopaedic surgeon, saw Mr Joly for assessment for medico-legal purposes at the request of the defendant’s solicitors who reported in a letter to the solicitors dated 2 August 2011.
34 Under the heading “Present Complaints” Mr Dooley said that Mr Joly had “difficulty with activities at and above shoulder level. Specifically he notes pain in the shoulder at night. He takes around four Digesic tablets per day for pain.”
35 In the Diagnosis, Clinical Impressions and Opinions section of the report, Mr Dooley observed that the surgery:
“Has improved [Mr Joly’s] condition. As expected, he does continue to note intermittent right shoulder girdle pain. Again, as expected, he has difficulty with activity at and above shoulder level and he notes pain at night. Overall there is no specific treatment required at present in his management.”
He said that Mr Joly would “continue to note the intermittent right shoulder girdle pain.” And would continue “to have difficulty with a lot of activity at and above shoulder level.”
36 The insurer’s solicitors also required Mr Joly to attend Mr Robin Williams, consultant orthopaedic surgeon for assessment, which assessment occurred on 4 April 2012 and was reported to the solicitors in a letter bearing that date.
37 Under the heading Current Conditions notes:
“At the right shoulder in particular [Mr Joly] has some diffuse pain in the shoulder for which he takes Endep and Di-Gesic. He has restricted movement of the shoulder and pointed out that it was very difficult for him to put his right hand behind his neck and into the small of his back. He avoids lifting heavy objects. He said that he is able to drive his car only for short distances because his right shoulder becomes more painful.”
38 On examination Mr Williams observed:
“With him standing relaxed, his right shoulder was slightly lower than the left and there was a mild diffuse wasting of the right shoulder muscles. There was a surgical scar on the lateral aspect of the right shoulder but soundly healed. …Internal rotation and external rotation were limited to approximately half the normal range. He appeared to have discomfort diffusely in the shoulder as he performed these movements and came to the end of the range.”
39 Mr Williams diagnosis was as follows:
“He has poor function in his right shoulder and associated pain due to the presence of persisting subacromial bursitis, a deficiency in the rotator cuff and probably some adhesive capsulitis.”
According to Mr Williams, Mr Joly has “quite extensive changes in the right supraspinatus tendon.” He said there may have been some degenerative change in the supraspinatus tendon, “but it is my opinion that a significant abnormality developed on 18.05.2009. For practical purposes, I believe his right shoulder has reached a stable state.”
Defendant’s Contentions
40 Mr McKenzie, on behalf of the defendant, did not deny the occurrence of the shoulder injury or that it has certain persisting sequelae. He submitted however, that the plaintiff’s case exaggerated the seriousness of the continuing symptoms and consequences. He made no allegation of functional overlay. It was a simple case of exaggeration, he submitted. He relied on video surveillance material.
41 The video surveillance was carried out and recorded at the front of Mr Joly’s residence on the Saturday before the hearing. Mr Joly is seen to appear early on Saturday afternoon and operate a petrol-driven edging machine. He demonstrated it for his wife who operated it for a while and the job of edging was completed with Mr Joly controlling the machine.
42 He was then seen to carry out some work in the lawn which entailed digging out a narrow pathway through the lawn. This entailed him digging or excavating from a kneeling position with a variety of implements, including a small, short-pronged fork and a trowel. He used his right hand and repeatedly jabbed either the trowel or the fork into the grass sods to break up the structure. He worked in short “bursts”, retiring to the garage at the front of the house for short breaks and taking refreshing drinks from time to time.
Conclusions
43 The Victorian Workcover Authority, through its counsel Mr McKenzie, conceded that Mr Joly suffers an organic injury. He expressly disclaimed any contention that its consequences had been amplified by some sort of “functional overlay”. The Workcover Authority’s case, he said, was that Mr Joly was simply exaggerating the seriousness of the injury. He placed primary reliance on some video surveillance footage which was taken on the weekend preceding the hearing.
44 This surveillance video showed Mr Joly spending a Saturday afternoon gardening at his house. In the first sequence he is shown demonstrating a petrol-driven edging machine to his wife. Mrs Joly operated the unit briefly and Mr Joly took over finishing the work.
45 The second sequence showed Mr Joly digging out a linear section of lawn at the front of his house. For this purpose he used a series of small implements, including a trowel and a small-sized fork. He carried out the work on his knees. Most notably he used the trowel or some other small implement or implements to break up the root structure of the lawn in repeated and vigorous jabbing motions into the surface of the lawn holding the implement with his right hand.
46 Mr Joly said that he did not claim to have been disabled from gardening completely. Had he not been injured, he said, he would have carried out this work with a full-sized spade and a large fork and done it in half an hour rather than taking the whole afternoon to do it with small implements on his knees. The force and jarring effect of the digging was transmitted, he said, to his forearm and not to his shoulder.
47 In my view the video surveillance footage shows a degree of exaggeration in the plaintiff's material. It is not gross exaggeration. It might more accurately be described as “gilding the lily”. All examiners are agreed that there is a significant persisting disability in Mr Joly’s right shoulder. The video did not, for instance, show him undertaking heavy overhead work such as clearing spouting from a ladder above head level. On the other hand, if Mr Joly’s right shoulder were as susceptible to pain from vibration and jarring, I cannot think that he would have used the implements in the way he did. The digging which he was undertaking was not “fine” work requiring the level of control that could be provided only by a person’s preferred hand. If the right shoulder was as problematic as Mr Joly’s material would suggest, he would have used his left arm to carry out the digging. Again, his operation of the petrol-driven edging machine makes it difficult to accept to the hilt his contentions about the effect of vibration rendering him unable to use an orthodox motor mower. In his viva voce evidence Mr Joly stressed how light the edging machine was, but the complaint he makes in his affidavit material was not that an orthodox motor mower is impossible for him to operate because of its weight, but rather because of its vibration. The edging machine seemed to vibrate substantially.
48 By virtue of section 134AB(38)(c) the consequences of an injury which is to be characterised as “serious” within the meaning of the definition must be not merely marked but “very considerable”.
49 No doubt these consequences must be judged in light of the circumstances of a particular plaintiff.
50 Mr Joly is severely restricted in what one might refer to as “overhead” work. He is a fitter and turner by trade and has followed that trade throughout his life. There is no evidence to suggest that “overhead” work is significant or essential for a fitter and turner.
51 Conscious that a plaintiff should not be disadvantaged by stoicism, nevertheless the capacity of a plaintiff to return to pre-injury work must be regarded as a point telling against his having suffered a serious injury within the definition: Stijepic v One Force Group Pty Ltd [2009] VSCA 181 [44].
52 Here the evidence showed that Mr Joly was able to return to his pre-accident employment and undertake not only the standard work week but also extensive overtime. Ultimately, he was deprived of the right to undertake overtime for reasons that were not made entirely plain by the evidence. They seem, however, to have been linked in some way to his injury at work and a perceived need by the employer to have other workers on site rather than leaving him to work overtime alone. Since then, however, Mr Joly has obtained new employment near his residence in Yarrawonga where he moved to be close to his daughter and grandchildren. His employer there is unaware of the injury which forms the basis of this application. He is operating on unrestricted duties. He referred to his work as “mainly button pushing”, that is, there is more mechanical and electrical assistance for him. However, this less physically demanding regime presented itself in the ordinary circumstances of the labour market. It was not arranged specially as a “light” job to facilitate his injury. Moreover, the video surveillance demonstrates that his ability to use his right arm – his preferred arm - is not as restricted as the material might otherwise suggest.
53 As to recreational matters, the video surveillance shows that Mr Joly is far from deprived of his ability to engage in gardening. I accept however that he is significantly restricted in what he can do now in comparison to what he might have done prior to his injury. I do observe however, that Mr Joly’s right hip obviously gives him difficulty. Without going into details, the evidence shows that it has been the subject of repeated surgery over a number of years. Mr McKenzie submitted, and I accept, that someone unacquainted with the evidence that I heard, on viewing the video, would regard it as a video of a subject whose physical restrictions derive from the hip and the back rather than the right arm. Again, therefore, as to recreational issues, accepting that the consequences of the injury may be as significant as “marked”, I do not accept that they are “very considerable”.
54 Mr Joly has received no prescription of digesics in the past 12 months. He said the previous prescription included 5 repeats and was for 5 packets of twenty tablets for each repeat. The last repeat was offered to a pharmacy in May while he still had 30 tablets in hand. It was rejected as “stale” – more than 12 months old. The evidence did not disclose how long the prescribing doctor intended the prescription and repeats to cover; but the fact that it went stale before all repeats were used and before the supply from the penultimate repeat had been used shows that Mr Joly must be using the digesics at a much lesser rate than anticipated by the prescribing physician.
55 The application for leave to bring a damages claim is dismissed.
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